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UNLESS OTHERWISE INDICATED, REFERENCES TOSECTIONS AND PORTIONS OF PROVISIONS IN THISREVIEWER PERTAIN THE RULES OF COURT.

PART ONE.

I. INTRODUCTION

A. Rule 72. Meaning and scope of special proceedings

RULE 72. SUBJECT MATTER AND APPLICABILITY OF GENERALRULES

SECTION 1. Subject matter of special proceedings.Rules ofspecial proceedings are provided for in the following cases:

(a) Settlement of estate of deceased persons;(b) Escheat;(c) Guardianship and custody of children;(d) Trustees;

(e) Adoption;(f) Rescission and revocation of adoption;(g) Hospitalization of insane persons;(h) Habeas corpus;(i) Change of name;(j) Voluntary dissolution of corporations;(k) Judicial approval of voluntary recognition of minor

natural children;(l) Constitution of family home;(m) Declaration of absence and death(n) Cancellation or correction of entries in the civil

registry.

SEC. 2. Applicability of rules of civil actions.In the absence of

special provisions, the rules provided for in ordinary actions shallbe, as far as practicable, applicable in special proceedings.

CASE NOTES

Vda. de Manalo v. Court of Appeals (2001)It is a fundamental rule that in the determination of thenature of an action or proceeding, the averments and thecharacter of the relief sought in the complaint or petitionshall be controlling. A careful scrutiny of the childrenspetition reveals that it is an ordinary civil action. The

jurisdictional requirements were: (1) the fact of the death of

the decedent; and (2) the place of his residence within thePhilippines. Both were present in the complaint.

Pilars co-called Opposition in actually an Answercontaining admissions and denials, special and affirmativedefenses and compulsory counterclaims for actual, moraand exemplary damages. The argument based on Article222 of the Civil Code is a mere afterthought, and onlyapplies to ordinary civil actions.

Natcher v. Court of Appeals (2001)There lies a marked distinction between an action and aspecial proceeding. An ACTION is a formal demand of onesrights in a court of justice in the manner prescribed by thelaw or by the court. It is the method of applying legalremedies accourding to established rules. A SPECIALPROCEEDING is an application or proceeding to establishthe STATUS or RIGHT of a party, or a particular factUsually, in a SPECIAL PROCEEDING, no formapleadings are required unless the statute so provides. InSPECIAL PROCEEDINGS, the remedy is generallygranted upon an application or a motion.

Section 2, Rule 90 provides that advancements

made from the legitime shall be determined by the courthaving jurisdiction over the estate proceedings. Thus, theRTC, acting in its general jurisdiction, is devoid of authorityto render an adjudication to resolve the issue ofadvancement of the real property in favor of Natcher.

Republic v. Court of Appeals (2005)The petition for declaration of presumptive death IS aspecial proceeding. The petition merely seeks for adeclaration by the RTC of the presumptive death ofClemente Jomoc. It does not seek enforcement or protectionof a right or prevention or redress of a wrong.

The denial of the Solicitor Generals motion forreconsideration was correct, and what the Solicitor General

should have done was to file, in addition to a Notice ofAppeal, a record on appeal in accordance with Section 19 ofthe IRR to B.P. Blg. 129.

Distinguished from civil actions

RULE 2. CAUSE OF ACTION

SECTION 1. Ordinary civil actions, basis of.Every ordinary civiaction must be based on a cause of action. (n)

SEC. 2. Cause of action, defined.A cause of action is the act oomission by which a party violates a right of another. (n)

B. Importance of procedural rules

CASE NOTES

Republic v. Kenrick Development Corporation (2006)A signed pleading is one that is signed by either the partyhimself or by his counsel. Section 3, Rule 7 is clear: itrequires that a pleading be signed by the party or counserepresenting him.

Counsels authority and duty to sign pleadings arepersonal to him. He cannot delegate this duty. The Court

Remedial Law

SPECIAL PROCEEDINGSStatutes and Case NotesREVIEWER

Prepared by A.I.P. Dela Cruzbased on the outline ofProf. C.A. Dela Cerna


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refused to liberally interpret the Rules because they are notmere technicalities. To summarily brush them aside maylead to arbitrariness or injustice.

C. Applicability of rules of civil action See Section 2, Rule 72above.

RULE 35. SUMMARY JUDGMENTS

SECTION 1. Summary judgment for claimant.A party seeking torecover upon a claim, counterclaim, or cross-claim or to obtain adeclaratory relief may, at any time after the pleading in answerthereto has been served, move with supporting affidavits,depositions or admissions for a summary judgment in his favorupon all or any part thereof. (1a, R34)

SEC. 2. Summary judgment for defending party.A party againstwhom a claim, counterclaim or cross-claim is asserted or adeclaratory relief is sought may, at any time, move withsupporting affidavits, depositions or admissions for a summary

judgment in his favor as to all or any part thereof. (2a, R34)

SEC. 3. Motion and proceedings thereon .The motion shall beserved at least ten (10) days before the time specified for thehearing. The adverse party may serve opposing affidavits,depositions, or admissions at least three (3) days before thehearing. After the hearing, the judgment sought shall be renderedforthwith if the pleadings, supporting affidavits, depositions, andadmissions on file, show that, except as to the amount ofdamages, there is no genuine issue as to any material fact andthat the moving party is entitled to a judgment as a matter of law.(3a, R34)

SEC. 4. Case not fully adjudicated on motion.If on motionunder this Rule, judgment is not rendered upon the whole case or

for all the reliefs sought and a trial is necessary, the court at thehearing of the motion, by examining the pleadings and theevidence before it and by interrogating counsel shall ascertainwhat material facts exist without substantial controversy andwhat are actually and in good faith controverted. It shallthereupon make an order specifying the facts that appearwithout substantial controversy, including the extent to which theamount of damages or other relief is not in controversy, anddirecting such further proceedings in the action as are just. Thefacts so specified shall be deemed established, and the trial shallbe conducted on the controverted facts accordingly. (4a, R34)

SEC. 5. Form of affidavits and supporting papers.Supportingand opposing affidavits shall be made on personal knowledge,

shall set forth such facts as would be admissible in evidence, andshall show affirmatively that the affiant is competent to testify tothe matters stated therein. Certified true copies of all papers orparts thereof referred to in the affidavit shall be attached theretoor served therewith. (5a, R34)

SEC. 6. Affidavits in bad faith.Should it appear to its satisfactionat any time that any of the affidavits presented pursuant to thisRule are presented in bad faith, or solely for the purpose of delay,the court shall forthwith order the offending party or counsel topay to the other party the amount of the reasonable expenseswhich the filing of the affidavits caused him to incur, including

attorneys fees. It may, after hearing, further adjudge theoffending party or counsel guilty of contempt. (6a, R34)

CASE NOTES

Matute v. Court of Appeals (1969)Instead of resolving the motion, the probate judge issued thecontroverted order removing the respondent as co-administrator without giving him the opportunity to adduce

his own evidence despite his explicit reservation that he beafforded the chance to introduce evidence in his behalf in theevent of denial of his motion to dismiss and/or demurrer toevidence. The Court held that the above actuation of theprobate judge constituted grave abuse of discretion whichdooms his improvident order as a nullity. In fact, evenwithout the respondent's reservation, it was the boundenduty of the probate judge to schedule the presentation andreception of the respondent's evidence before disposing ofthe case on the merits because only the movants at that timehad presented their evidence. This duty is projected intobolder relief if it is considered that the aforesaid motion is inform as well as in substance a demurrer to evidence allowedby Rule 35, by virtue of which the defendant does not lose

his right to offer evidence in the event that his motion isdenied. Said Rule states:

After the plaintiff has completed the presentation of hievidence, the defendant without waiving his right to offer evidencin the event the motion is not granted, may move for a dismissal onthe ground that upon the facts and law the plaintiff has shown noright to relief. (Italics supplied).

The application of the abovecited Rule in speciaproceedings, like the case at bar, is authorized by section 2of Rule 72 which direct that in the "absence of speciaprovisions, the rules provided for in ordinary civil actionsshall be, as far as practicable, applicable in speciaproceedings."

PART TWO. SETTLEMENT OF ESTATE OFDECEASED PERSONS

I. VENUE

RULE 73. VENUE AND PROCESS

SECTION 1. Where estate of deceased persons settled.If thedecedent is an inhabitant of the Philippines at the time of hisdeath, whether a citizen or an alien, his will shall be proved, or

letters of administration granted, and his estate settled, in theRegional Trial Court in the province in which he resides at thetime of his death, and if he is an inhabitant of a foreign countrythe Regional Trial Court of any province in which he had estateThe court first taking cognizance of the settlement of the estateof a decedent, shall exercise jurisdiction to the exclusion of alother courts. The jurisdiction assumed by a court, so far as itdepends on the place of residence of the decedent, or of thelocation of his estate, shall not be contested in a suit oproceeding, except in an appeal from that court, in the originacase, or when the want of jurisdiction appears on the record.


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SEC. 2. Where estate settled upon dissolution of marriage. When the marriage is dissolved by the death of the husband orwife, the community property shall be inventoried, administered,and liquidated, and the debts thereof paid, in the testate orintestate proceedings of the deceased spouse. If both spouseshave died, the conjugal partnership shall be liquidated in thetestate or intestate proceedings of either.

SEC. 3. Process.In the exercise of probate jurisdiction, RegionalTrial Court may issue warrants and process necessary to compelthe attendance of witnesses or to carry into effect their ordersand judgments, and all other powers granted them by law. If aperson does not perform an order or judgment rendered by acourt in the exercise of its probate jurisdiction, it may issue awarrant for the apprehension and imprisonment of such personuntil he performs such order or judgment, or is released.

SEC. 4. Presumption of death.For purposes of settlement of hisestate, a person shall be presumed dead if absent and unheardfrom for the periods fixed in the Civil Code. But if such personproves to be alive, he shall be entitled to the balance of his estateafter payment of all his debts. The balance may be recovered bymotion in the same proceeding.

CASE NOTES

Eusebio v. Eusebio (1956)It was undisputed that up to at least 29 October 1952Andres was, and has always been, domiciled in SanFernando, Pampanga where he had his home, as well assome other properties. To seek medical attention, (he had aheart condition), he and his son whot treated him, Dr. JesusEusebio, resided in Quezon City.

Thus, since the domicile of origin of the decedentwas San Fernando, Pampanga, where he resided for 70years, the presumption is that he retained that domicile and

hence, residence, in the absence of satisfactory proof to thecontrary, for well-settled is the rule that a domicile onceacquired is retained until a new one is gained. Admittedly,the decedent was juridically capable of choosing a domicileand had been in Quezon City several days before his demise.Did he intend to stay in Quezon City permanently?

The Court ruled that there was no such intent.Neither did the decedent appear to have manifested his wishto live indefinitely in said city. The Court found untenablethe RTCs finding that Andress purchase of a house inQuezon City was indicative of animus manendi. The housewas bought because he had been advised to do so because ofhis illness. It is well-settled that domicile is not commonlychanged by presence in a place merely for ones own health,even if coupled with knowledge that one will never againbe, on account of illness, able to return home.

Fule v. Court of Appeals (1976)1The Judiciary Act of 1948 confers upon CFIs jurisdictionover all probate cases independently of the place of theresidence of the deceased. But the Rules of Court fixes thevenue or the place where each case shall be brought. Place ofresidence does not constitute an element of jurisdictionratione materiae.

1Prevailing doctrine.

Resides means or connotes ex vi termini actuaresidence as distinguished from legal residence ordomicile. In the application of the rules on venue, theRevised Rules of Court is of such nature and residencerather than domicile, is the significant factor. Even if theword used is domicile, the meaning is residence rather thandomicile. No particular length of time is required, bodilypresence suffices.

Amados last place of residence is Quezon City, andboth Preciosa and Virginia presented evidence to that effect.

Malig v. Bush (1969)Section 1, Rule 75 of the old Rules of Court is really a ruleon venue, not of jurisdiction, as the caption of the Ruleindicates, and in order to preclude different courts fromexercising jurisdiction, the Rule specifis that the court firsttaking cognizance of the settlement of the estate of adecedent shall exercise jurisdiction to the exclusion of alother courts.

Rodriguez v. de Borja (1966)The jurisdiction of the Bulacan CFI became vested upon the

delivery thereto of the will of the will of the late FrRodriguez on 4 March 1963, even without a petition for itsallowance was filed until 12 March (Section 3, Rule 77 of theold Rules).

But the Rodriguezes object because the Rules speakof a will being delivered to the court having jurisdiction andin this case the Bulacan CFI did not have it because thedecedent was domiciled in Rizal. The Court could notdiscount Fr. Rodriguezs 33-year residence in HagonoyBulacan as parish priest, but even so, animus revertednipointsto Paraaque, but still that does not imply that the BulacanCFI had no jurisdiction. As ruled in previous decisions, thepower to settle the decedents estate is conferred by lawupon all courts of first instance, and the domicile of the

testator only affects the venue but not jurisdiction of thecourt.

Cuenco v. Court of Appeals (1973)The Judiciary Act concededly confers original jurisdictionupon all CFIs over all matters of probate, both of testateand intestate estates. Rule 73 of the Rules of Court laysdown the rule on venue as the very caption of the Ruleindicates, and in order to prevent conflict among differentcourts which may otherwise properly assume jurisdictionfrom doing so.

It should be noted that the Rule on venue does notstate that the court with whom the testate or the intestate

petition is first filed acquires exclusive jurisdiction. A courtupon learning that a petition for the probate of thedecedents last will and testatment may decline to takecognizance of the petition and defer to the second court.

De Borja v. Tan (1955)The powers and functions of a special administrator arequite limited. Under Section 1 of Rule 81, a specialadministrator is only appointed where there is a delay in thegrant of letters of administration occasioned by an appeafrom allowance or disallowance of a will or from any othercause.


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Since Joses appointment as co-administrator wasbecause Francisco was physically incapable, Jose ispractically a regular administrator, hence the orderappointing Jose as such was appealable.

Macias v. Uy Kim (1972)Even in other cases it is also a general principle that thebranch of the CFI that first acquired jurisdiction over the

case retains such jurisdiction to the exclusion of all otherbranches of the same CFI.

B. Dissolution of marriage

CASE NOTES

Bernardo v. Court of Appeals (1963)The question of ownership of certain properties involved whether or not the belong to the conjugal partnership ofgains or to the husband exclusively is a matter properlywithin the jurisdiction of the probate court whichnecessarily has to liquidate the partnership in order to

determine Capilis estate which is to be distributed amonghis heirs who are all parties in the proceedings, includingthe widow now represented on account of her death by herheirs who have been substituted upon petition of theexecutor himself. In this case, no third persons were presentwhose rights must be considered.

Falcatan v. Sanchez (1957)While a court in a summary proceeding for the settlement ofthe estate of a deceased person may pass upon the questionof title to the property, this is only true where the title isdisputed by a third person not the surviving spouse or heirof the deceased, as successors of the latter.

It would be fair to hold that the property inquestion in this case belongs to the conjugal partnership.

Ermac v. Medelo (1975)The Court held that it was proper for the lower court toapprove the project of partition notwithstanding claims byErmac in a separate civil action. The policy of the law is toterminate proceedings for the settlement of the estate ofdeceased persons with the least loss of time. Definitely,probate court is not the best forum for the resolution ofadverse claims of ownership of any property ostensiblybelonging to the estate.

Calma v. Taedo (1938)

The Court held the sheriffs sale to be void. It appears thatTaedo brought the collection suit against Eulalio asadministrator of the conjugal partnership while Fausta wasstill alive. But the administration has since passed to Maria.Thus, no complaint for its collection may be brought againstEulalio, and the claim had to be filed in the testamentaryproceedings for the estate of Fausta Macasaquit.

The sheriffs sale in the action against Eulalio isthus null and void.

Ocampo v. Potenciano (1951)Potenciano did not have authority to enter into an option torepurchase agreement after Rufinas death. The Court of

Appeals erred in supposing that Potenciano had suchauthority as de factoadministrator of Rufinas estate.OLD RULE: Upon dissolution of marriage, the husbandmust liquidate.PRESENT RULE: Liquidation must be done in testate orintestate proceedings. Husband cannot now liquidate on hisown.

C. Jurisdiction of probate court

RULE 90. DISTRIBUTION AND PARTITION OF THE ESTATE

SECTION 1. When order for distribution of residue made.When the debts, funeral charges, and expenses oadministration, the allowance to the widow, and inheritance taxif any, chargeable to the estate in accordance with law, have beenpaid, the court, on the application of the executor oadministrator, or of a person interested in the estate, and aftehearing upon notice, shall assign the residue of the estate to thepersons entitled to the same, naming them and the proportionsor parts, to which each is entitled, and such persons may demand

and recover their respective shares from the executor oadministrator, or any other person having the same in hispossession. If there is a controversy before the court as to whoare the lawful heirs of the deceased person or as to thedistributive shares to which each person is entitled under the lawthe controversy shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment ofthe obligations above mentioned has been made or provided forunless the distributees, or any of them, give a bond, in a sum tobe fixed by the court, conditioned for the payment of saidobligations within such time as the court directs.

CASE NOTES

Reyes v. Ysip (1955)In the hearing for probate of a will, the court is not obligedto accept or receive evidence of filiation. To allow Reyesoppositor to the probate proceedings, to prove her filiationwould be injecting matters different from the issues involvedin the probate of a will.

Torres v. Javier (1916)In this case, the Court held that a third person can beappointed administrator. The Code of Civil Procedureprovides that the following persons can be appointedadministrator:

(1) Surviving husband or wife;

(2) Other relatives;(3) If the first two are unsuitable, some otherperson

(4) Any person the court may appointSince two women were contesting as to who was

the legal wife, a third person, disinterested, should beappointed.

Intestate Estate of Borromeo, Patrocino Borromeo-Herrera, administrator v. Borromeo (1987)The petitioners argue that the present status of SpeciaProceeding No. 916-R requires only the appraisal of theattorney's fees of the lawyers-claimants who were


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individually hired by their respective heirs-clients, so theirattorney's fees should be legally charged against theirrespective clients and not against the estate.

The Court agreed with the petitioners' contentionthat attorney's fees are not the obligation of the estate but ofthe individual heirs who individually hired their respectivelawyers. The portion, therefore, of the Order of August 15,1969, segregating the exhorbitantly excessive amount of

40% of the market value of the estate from which attorney'sfees shall be taken and paid should be deleted.

Morales et al. v. Court of First Instance (1986)It is a well-settled rule that a probate court or one in chargeof proceedings whether testate or intestate cannotadjudicate or determine title to properties claimed to be apart of the estate and which are equally claimed to belong tooutside parties. All that the said court could do as regardssaid properties is to determine whether they should orshould not be included in the inventory or list of propertiesto be administered by the administrator. If there is nodispute, well and good; but if there is, then the parties, theadministrator, and the opposing parties have to resort to an

ordinary action for a final determination of the conflictingclaims of title because the probate court cannot do so.

The controversy was not whether or not theredemption ordered by the respondent court was done, butwhether or not such redemption, as done, was valid,According to settled jurisprudence, such controversy isoutside the jurisdiction of the probate court. Parenthetically,it must be mentioned that the respondent court itself had, atthat time, already determined that the petitioners areintervenors in the settlement proceedings of Simona's estatenot as heirs but as "co-owners" with the intestate estates,and the respondent court in fact would later state in theJanuary 13, 1977 order that the petitioners have "not beencalled to participate in the proceedings." The petitioners,

are, therefore, outside parties claiming title to propertyincluded in the inventory of properties under administration.

Heirs of Reyes v. Reyes (2000)The pronouncements in this case should not by any meansdiminish or deprive the oppositor of whatever rights orproperties he believes or considers to be rightfully his.Although the circumstances and factors he has given to theCourt herein may have legal consequences that could havedefeated opposing-claims and rendered oppositors claim onthe properties unassailable, this Courts competence toadjudicate thus in this proceedings is clearly non-existent.In Baybayan vs. Aquino, it was held that the question ofownership of a property alleged to be part of the estate mustbe submitted to the Regional Trial Court in the exercise ofits general jurisdiction.

This ruling then, cannot be a final adjudication onthe present and existing legal ownership of the properties.Whatever is declared herein ought not to preclude oppositorfrom prosecuting an ordinary action for the purpose ofhaving his claims or rights established over the properties.If he still cares hereafter to prosecute such claim ofownership adversely to the estate and the apparent co-owner, his mother Felisa. As stated in Valera, et al. vs. JudgeInserto, et al., the Court, acting as a probate court, exercisesbut limited jurisdiction; accordingly, its determination that

property should be included in the inventory or not is withinits probate jurisdiction, but such determination is onlyprovisional in character, not conclusive, and is subject tothe final decision in a separate action that may be institutedby the parties.

Cunanan v. Amparo (1948)The Court does not agree with the respondents that the

lower court lacked jurisdiction to order the delivery of thepossession of the lots to the estate. This power is a mereconsequence of the power to approve Soriano's claim; apower which the court undoubtedly had and which Sorianohimself invoked with full knowledge of the facts. As ageneral rule, with the consent of the parties mattersaffecting property under judicial administration may betaken cognizance of by the court in the course of theintestate proceeding provided the interests of third personsare not prejudiced. Determination of title to property is withinthe jurisdiction of Courts of First Instance. The respondentSoriano's objection relates exclusively to the procedurewhich is distinct from jurisdiction. It affects only personarights to a mode of practice which may be waived

Certainly, there is waiver where, as here, and as hasbeen pointed out, the party who raises the objection wasthe one who set the court in motion, and who, by failingto disclose the existence of a sale under pacto de retro,suppressed jurisdictional facts that might be in the wayof his claim's success.

Valera v. Inserto (1987)Settled is the rule that a Court of First Instance (nowRegional Trial Court), acting as a Probate Court, exercisesbut limited jurisdiction, and thus has no power to takecognizance of and determine the issue of title to propertyclaimed by a third person adversely to the decedent, unlessthe claimant and all the other parties having legal interest inthe property consent, expressly or impliedly, to thesubmission of the question to the Probate Court foradjudgment, or the interests of third persons are not therebyprejudiced, the reason for the exception being that thequestion of whether or not a particular matter should beresolved by the Court in the exercise of its general

jurisdiction or of its limited jurisdiction as a special court(e.g., probate, land registration, etc), is in reality not a

jurisdictional but in essence of procedural one, involving amode of practice which may be waived.

The facts obtaining in this case, however, do notcall for the application of the exception to the rule. Asalready earlier stressed, it was at all times clear to the Court

as well as to the parties that if cognizance was being takenof the question of title over the fishpond, it was not for thepurpose of settling the issue definitely and permanently, andwriting " finis" thereto, the question being explicitly left fordetermination "in an ordinary civil action," but merely todetermine whether it should or should not be included in theinventory. This function of resolving whether or notproperty should be included in the estate inventory is, to besure, one clearly within the Probate Court's competencealthough the Court's determination is only provisional incharacter, not conclusive, and is subject to the final decisionin a separate action that may be instituted by the parties.


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than one (1) month nor more than three (3) months from thedate of the last publication of a notice which shall be publishedonce a week for three (3) consecutive weeks in a newspaper ofgeneral circulation in the province, and after such other notice tointerested persons as the court may direct, the court mayproceed summarily, without the appointment of an executor oradministrator, and without delay, to grant, if proper, allowance ofthe will, if any there be, to determine who are the persons legallyentitled to participate in the estate and to apportion and divide itamong them after the payment of such debts of the estate as thecourt shall then find to be due; and such persons, in their ownright, if they are lawful age and legal capacity, or by theirguardians or trustees legally appointed and qualified, if otherwise,shall thereupon be entitled to receive and enter into thepossession of the portions of the estate so awarded to themrespectively. The court shall make such order as may be justrespecting the costs of the proceedings, and all orders and

judgments made or rendered in the course thereof shall berecorded in the office of the clerk, and the order of partition oraward, if it involves real estate, shall be recorded in the properregisters office.

SEC. 3. Bond to be filed by distributees.The court, beforeallowing a partition in accordance with the provisions of thepreceding section, may require the distributees, if property otherthan real is to be distributed, to file a bond in an amount to befixed by court, conditioned for the payment of any just claimwhich may be filed under the next succeeding section.

SEC. 4. Liability of distributees and estate.If it shall appear atany time within two (2) years after the settlement anddistribution of an estate in accordance with the provisions ofeither of the first two sections of this rule, that an heir or otherperson has been unduly deprived of his lawful participation in theestate, such heir or such other person may compel thesettlement of the estate in the courts in the manner hereinafterprovided for the purpose of satisfying such lawful participation.And if within the same time of two (2) years, it shall appear thatthere are debts outstanding against the estate which have notbeen paid, or that an heir or other person has been undulydeprived of his lawful participation payable in money, the courthaving jurisdiction of the estate may, by order for that purpose,after hearing, settle the amount of such debts or lawfulparticipation and order how much and in what manner eachdistributee shall contribute in the payment thereof, and mayissue execution, if circumstances require, against the bondprovided in the preceding section or against the real estatebelonging to the deceased, or both. Such bond and such realestate shall remain charged with a liability to creditors, heirs, orother persons for the full period of two (2) years after suchdistribution, notwithstanding any transfers of real estate that mayhave been made.

SEC. 5. Period for claim of minor or incapacitated person.If onthe date of the expiration of the period of two (2) yearsprescribed in the preceding section the person authorized to filea claim is a minor or mentally incapacitated, or is in prison oroutside the Philippines, he may present his claim within one (1)year after such disability is removed.

CIVIL CODE

Article 320. The father, or in his absence the mother, is the legaladministrator of the property pertaining to the child under

parental authority. If the property is worth more than twothousand pesos, the father or mother shall give a bond subject tothe approval of the Court of First Instance. (159a)

FAMILY CODE

Art. 234.Emancipation takes place by the attainment of majorityUnless otherwise provided, majority commences at the age oftwenty-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 apublic instrument executed by the parent exercising parentaauthority and the minor at least eighteen years of age. Suchemancipation shall be irrevocable. (397a, 398a, 400a, 401a)

Art. 236. Emancipation for any cause shall terminate parentaauthority over the person and property of the child who shalthen be qualified and responsible for all acts of civil life. (412a)

A. Extra-judicial settlement by agreement between heirs SeeSections 1, 4 and 5, Rule 74 above.

CASE NOTES

Monserrat v. Ibaez (1950)2Where there are no debts, the heirs are not bound to submitthe property to a judicial administration which is alwayslong and costly or to apply for an appointment of an adminby the court. These proceedings are superfluous andunnecessary.

Vda. de Rodriguez v. Tan (1952)Section 1, Rule 74 of the Rules of Court does not precludeheirs from instituting administration proceedings evend ithe estate has no debts or obligations, if they do not desireto resort for good reasons to an ordinary action of partitionWhile Section 1 allows heirs to divide the estate amongthemselves as they may deem fit, it does not compel them totake another course of action.

Pereira v. Court of Appeals (1989)The general rule is that when a person dies leavingproperty, the same should be judicially administered and thecompetent court should appoint a qualified administrator

under the Rules of Court. An exception is Section 1, Rule 74of the Rules of Court. Under this Rule, when all heirs are ofage and there exist no debts from the estate, they may agreein writing to partition the estate. There is no good reason toburden the estate with the costs of judicial administration.

Guico v. Bautista (1960)Guicos action for partition and liquidation was deemedpremature. While there are Rules allowing for summarysettlement of estates, this only applies when the decedent

2Based from the digest of Roxan Roxas, C2013


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left no debts or obligations and all heirs are of legal age. Thedebts must be paid first.

However, the question of whether the donatedproperties are subject to collation may nonetheless be passedupon in the special proceedings.

Rebong v. Ibaez (1947)Since the registered or annotated contingent interest of the

creditors or other heirs of Rebongs predecessors in interestwas established Section 4, Rule 74 has not yet terminated,(two-year lien), Judge Ibaez had no jurisdiction to ordercancellation of lien.

McMicking v. Sy Conbieng (1912)Under the broad interpretation and application of theprovisions of the Code of Civil Procedure, the division ofLao Sempcos properties is in conformity with said Rulesand may be termed extrajudicial partition. The fact of priorappointment of an administrator and the filing of aninventory before such partition is of no consequence so farthe right of the owners to partition is concerned. When thecondition that there are no debts or all the debts have been

paid by the heirs has been complied with , partition may takeplace no matter what stage the administration has reached.

Gerona v. de Guzman (1964)The Court held that the extrajudicial partition held by thede Guzmans was valid because while as a general rule anaction for partition among co-heirs does not prescribe, thisis true only as long as the defendants do not hold theproperty in question under an adverse title.

When the de Guzmans executed the deed ofextrajudicial partition stating therein that they are the soleheirs of the deceased, and secured new TCTs in their name,they hereby excluded the Geronas from the deceasedsestate, thus an adverse title. This is why the Geronas shouldhave brought an annulment action on the ground of fraudinstead of claiming deprivation.

Pedrosa v. Court of Appeals (2001)The Court held that the 1983 partition was invalid. Thetwo-year prescriptive period in Section 4, Rule 74 does notapply if a person interested in the estate did not participatein the partition. Pedrosa did not participate. She thereforehad four years to question the deed of partition, followingthe ruling in Gerona v. de Guzman.

Section 1, Rule 74 governs the publicationrequirement.

Pada-Kilario v. Court of Appeals (2000)The Court held that the 1951 partition of Jacinto Padasestate was valid and conclusive against the Kilarios. Theextrajudicial partition of the estate of Jacinto is validalthough executed in a private document. No law requirespartition among heirs to be in writing and registered inorder to be valid. The requirement in Section 1, Rule 74 thata partition be put in writing has the purpose of constructivenotice, not affecting the intrinsic validity of the partitionwhere no creditors are involved.

The extrajudicial partition has produced a legalstatus. As such, their division is conclusive unless and until

it is shown that there were debts existing against the estatethat were still unpaid.

Tan v. Benolirao (2009)An annotation under Section 4, Rule 74 is an encumbranceon the property. The provision of the said Rule prescribesthe procedure to be followed if within two years after anextrajudicial partition of estate. An annotation is placed on

the new TCTs pursuant to distribution and partition of adeceaseds real properties to warn third persons on possibleinterests of excluded heirs or unpaid creditors.

B. Summary settlement See Sections 2 to 5, Rule 74 above.

CASE NOTES

Sampilo v. Court of Appeals (1958)The Court held that Felisa Sinopera is not barred by thestatute of limitations from making a claim against the estateof Tolete. Citing the provisions of Section 4, Rule 74 barringdistributes or the heirs from objecting to an extrajudicia

partition after the expiration of two years from suchextrajudicial partition is applicable only to (1) persons whohave participated or taken part or had notice of theextrajudicial partition, and (2) when the provisions oSection 1, Rule 74 have been strictly complied with in thatall persons or heirs of the deceased have taken part in theextrajudicial settlement or are represented by themselves orthrough guardians. These conditions do not obtain in thiscase.

Also, there is nothing in Section 4, Rule 74 whichshows a statute of limitations barring action by thirdpersons. It is a bar against the parties who have taken partin the extrajudicial proceedings, but not against thirdpersons not parties thereto. Even so, Section 4, Rule 74 isstill unavailing to Sampilo and Salacup because the actiontaken by the estate of Tolete is one based on fraud.

IV. PRODUCTION AND ALLOWANCE OF WILLS

RULE 75. PRODUCTION OF WILL. ALLOWANCE OF WILLNECESSARY

SECTION 1. Allowance necessary. Conclusive as to execution.No will shall pass either real or personal estate unless it is provedand allowed in the proper court. Subject to the right of appealsuch allowance of the will shall be conclusive as to its due

execution.

SEC. 2. Custodian of will to deliver.The person who hascustody of a will shall, within twenty (20) days after he knows ofthe 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. Aperson named as executor in a will shall, within twenty (20) daysafter he knows of the death of the testator, or within twenty (20days after he knows that be is named executor if he obtainedsuch knowledge after the death of the testator, present such wilto the court having jurisdiction, unless the will has reached the


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court in any other manner, and shall, within such period, signifyto the court in writing his acceptance of the trust or his refusal toaccept it.

SEC. 4. Custodian and executor subject to fine for neglect.Aperson who neglects any of the duties required in the two lastpreceding sections without excuse satisfactory to the court shallbe fined not exceeding two thousand pesos.

SEC. 5. Person retaining will may be committed.A personhaving custody of a will after the death of the testator whoneglects without reasonable cause to deliver the same, whenordered so to do, to the court having jurisdiction, may becommitted to prison and there kept until he delivers the will.

A. Meaning of probate

1. Due execution and extrinsic validityCIVIL CODE

Article 783.A will is an act whereby a person is permitted, withthe formalities prescribed by law, to control to a certain degreethe disposition of this estate, to take effect after his death. (667a)

Article 838. No will shall pass either real or personal propertyunless it is proved and allowed in accordance with the Rules ofCourt.

The testator himself may, during his lifetime, petitionthe court having jurisdiction for the allowance of his will. In suchcase, the pertinent provisions of the Rules of Court for theallowance of wills after the testator's a death shall govern.

The Supreme Court shall formulate such additionalRules of Court as may be necessary for the allowance of wills onpetition 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, shallbe conclusive as to its due execution. (n)

CASE NOTES

Spouses Pastor v. Court of Appeals (1983)In the absence of a resolution on the intrinsic validity of thewill, there was no basis for the probate court to hold thatQuemada is entitled to the payment of the questionedlegacy.

In re Estate of Johnson (1918)

The Court held that the probate order was issued withsufficient court jurisdiction. The proceeding as to theprobate of a will is essentially one in rem, and the verynature of things the state is allowed wide latitutde indetermining the character of the constructive notice givento the world in a prceeding where it has absolute possessionthe res.

Manahan v. Manahan (1933)Once a will has been authenticated and admitted to probate,questions relative to the validity thereof can no longer beraised on appeal. The probate decree is conclusive withrespect to due execution and cannot be impugned except for

fraud, in any separate or independent action or proceedingsin rem.

Balanay v. Martinez (1975)The Court held that the probate court was correct inpassing upon the intrinsic validity of the will. In view of thecertain unusual provisions of the will, which are of dubiouslegality, the trial court was correct in passing upon the wills

intrinsic validity even before its formal validity has beenestablished. The probate of a will is a useless ceremony if on itsface it already appears to be void.

Maninang v. Court of Appeals (1982)The lower court acted in excess of its jurisdiction indismissing the testate case. Generally, the probate of a wilis NECESSARY.

Opposition to the intrinsic validity of the will or thelegality of its provisions cannot be entertained in theprobate proceedings. Because of the dismissal of the testatecase, the determination of other controversial issues has notbeen considered.

2. Nature of proceedinsgCASE NOTES

Fernandez v. Dimagiba (1967)The order allowing the will is not interlocutory. A probatedecree finally and definitely settles all questions coveringthe capacity of the testator and the proper execution andwitnessing of his last will and testament, irrespective owhethere its provisions are valid or not.

Alsua-Betts v. Court of Appeals (1979)

Probate proceedings involve public interest, and theapplication of the rule on estoppel therein, when it willbloack the ascertainment of the truth as to circumstancessurrounding the execution of a testament would seeminimical to public policy.

B. Responsible personSee Sections 2 and 5, Rule 75, above.

C. Discovery of will during intestate proceedings

CASE NOTES

Cuenco v. Court of Appeals (1973)A court, upon learning that a petition for the probate of thedecedents last will and testament has been presented inanother court may decline to take cognizance of the petitionand hold the petition before it in abeyance, and instead deferto the second court for the probate of the decedents will.

Casiano v. Maloto (1977)An intestate court does not have jurisdiction to entertain thepetition of the probate of a will that was discovered duringthe proceedings. The petition for the probate of said wilshould have been filed in a separate action and not with theintestate court.


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V. ALLOWANCE OR DISALLOWANCE OF WILLS

RULE 76. ALLOWANCE OR DISALLOWANCE OF WILL

SECTION 1. Who may petition for the allowance of will.Anyexecutor, devisee, or legatee named in a will, or any other personinterested in the estate, may, at any time after the death of thetestator, petition the court having jurisdiction to have the will

allowed, whether the same be in his possession or not, or is lostor 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 awill 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, thename 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 ofadministration with the will annexed.

SEC. 3. Court to appoint time for proving will. Notice thereof tobe published.When a will is delivered to, or a petition for theallowance of a will is filed in, the court having jurisdiction, suchcourt shall fix a time and place for proving the will when allconcerned may appear to contest the allowance thereof, andshall cause notice of such time and place to be published three(3) weeks successively, previous to the time appointed, in anewspaper of general circulation in the province.

But no newspaper publication shall be made where thepetition for probate has been filed by the testator himself.

SEC. 4. Heirs, devisees, legatees, and executors to be notifiedby mail or personally.The court shall also cause copies of thenotice of the time and place fixed for proving the will to beaddressed to the designated or other known heirs, legatees, anddevisees of the testator resident in the Philippines at their placesof residence, and deposited in the post office with the postagethereon prepaid at least twenty (20) days before the hearing, ifsuch places of residence be known. A copy of the notice must inlike manner be mailed to the person named as executor, if he benot the petitioner, also, to any person named as co-executor notpetitioning, if their places of residence be known. Personal

service of copies of the notice at least ten (10) days before theday 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 twopreceding sections must be shown before the introduction oftestimony in support of the will. All such testimony shall be takenunder oath and reduced to writing. If no person appears tocontest the allowance of the will, the court may grant allowancethereof on the testimony of one of the subscribing witnesses

only, if such witness testify that the will was executed as isrequired by law.

In the case of a holographic will, it shall be necessarythat at least one witness who knows the handwriting andsignature of the testator explicitly declare that the will and thesignature are in the handwriting of the testator. In the absence ofany such competent witness, and if the court deem it necessaryexpert 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 theexecution and validity of the same be established and the will isproved to have been in existence at the time of the death of thetestator, or is shown to have been fraudulently or accidentallydestroyed in the lifetime of the testator without his knowledgenor unless its provisions are clearly and distinctly proved by atleast two (2) credible witnesses. When a lost will is proved, theprovisions thereof must be distinctly stated and certified by the

judge, under the seal of the court, and the certificate must befiled and recorded as other wills are filed and recorded.

SEC. 7. Proof when witnesses do not reside in province.If iappears at the time fixed for the hearing that none of thesubscribing witnesses resides in the province, but that thedeposition of one or more of them can be taken elsewhere, thecourt may, on motion, direct It to be taken, and may authorize aphotographic copy of the will to be made and to be presented tothe witness on his examination, who may be asked the samequestions with respect to it and to the handwriting of the testatoand others, as would be pertinent and competent if the originawill were present.

SEC. 8. Proof when witnesses dead or insane or do not reside inthe Philippines.If it appears at the time fixed for the hearingthat the subscribing witnesses are dead or insane, or that none ofthem resides in the Philippines, the court may admit thetestimony of other witnesses to prove the sanity of the testatorand the due execution of the will; and as evidence of theexecution of the will, it may admit proof of the handwriting of thetestator and of the subscribing witnesses, or of any of them.

SEC. 9. Grounds for disallowing will.The will shall be disallowedin 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 o

fear, or threats;(d) If it was procured by undue and improper pressure

and influence, on the part of the beneficiary, or of some otheperson for his benefit;

(e) If the signature of the testator was procured by fraudor trick, and he did not intend that the instrument should be hiswill at the time of fixing his signature thereto.

SEC. 10. Contestant to file grounds of contest.Anyoneappearing to contest the will must state in writing his grounds foopposing its allowance, and serve a copy thereof on thepetitioner and other parties interested in the estate.

SEC. 11. Subscribing witnesses produced or accounted for wherewill contested.If the will is contested, all the subscribingwitnesses, and the notary in the case of wills executed under theCivil Code of the Philippines, if present in the Philippines, and not


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insane, must be produced and examined, and the death,absence, or insanity of any of them must be satisfactorily shownto the court. If all or some of such witnesses are present in thePhilip-pines but outside the province where the will has beenfiled, their deposition must be taken. If any or all of them testifyagainst the due execution of the will, or do not remember havingattested to it, or are otherwise of doubtful credibility, the willmay, nevertheless, be allowed if the court is satisfied from thetestimony of other witnesses and from all the evidencepresented that the will was executed and attested in the mannerrequired by law.

If a holographic will is contested, the same shall beallowed if at least three (3) witnesses who know the handwritingof the testator explicitly declare that the will and the signature arein the handwriting of the testator; in the absence of anycompetent witness, and if the court deem it necessary, experttestimony may be resorted to.

SEC. 12. Proof where testator petitions for allowance ofholographic will.Where the testator himself petitions for theprobate of his holographic will and no contest is filed, the factthat he affirms that the holographic will and the signature are inhis own handwriting, shall be sufficient evidence of thegenuineness and due execution thereof. If the holographic will iscontested, the burden of disproving the genuineness and dueexecution thereof shall be on the contestant The testator may, inhis turn, present such additional proof as may be necessary torebut the evidence for the contestant.

SEC. 13. Certificate of allowance attached to proved will. To berecorded in the Office of Register of Deeds. If the court issatisfied, upon proof taken and filed, that the will was dulyexecuted, and that the testator at the time of its execution was ofsound 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 beattached to the will and the will and certificate filed and recordedby the clerk. Attested copies of the will devising real estate and ofcertificate of allowance thereof, shall be recorded in the registerof deeds of the province in which the lands lie.

A. Who and when to file

CASE NOTES

Guevara v. Guevara (1956)The petition for probate was not barred by the statute oflimitations. The presentation of a decedents will to thecompetent court has always been deemed in law as more of aduty than a right, and neglect carries penalty.

The doctrine of prescription is destructive of theright of testamentary disposition and violative of theowners right to control his property within the legal limits.It is not without purpose that Rule 77 of the Rules of Courtprescribes that any person interested in the estate may, atanytime after the death of the testator, petition the courthaving jurisdiction to have the will allowed. This means thatthe statute of limitations has no application to the probate ofwills.

Duran v. Duran (1967)The deed of assignment rendered Cipriano Duran a personnot interested in the estate of Pio Duran. In In re Santos,

since the approval of the court is deemed not final until theestate is closed, the assigning heir remains an interestedperson in the proceeding even after said approval, which canbe vacated, is given.

In the present case, however, the assignment tookplace when no settlement proceedings were pending. Theproperties subject matter of the assignment were not underthe jurisdiction of the court.

The assigning heir of cannot initiate a settlementproceeding for until the deed of assignment is annulled orrescinded, it is deemed valid and effective against him sothat he is left without that interest in the estate required topetition for settlement proceedings.

B. Contents of petition See Section 2, Rule 76 above.

CASE NOTES

Salazar v. Court of First Instance (1937)Under the provisions of the former Code of Civil Procedurea CFI 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 case of a resident of the Philippines, that he died

in the province where the court exercisesterritorial jurisdiction;

(3) In case of a nonresident, that he has left an estatein the provincewhere the court is situated; and

(4) That the testament or last will of the deceased hasbeen delivered to the court and is in thepossession thereof.

NOTE: Section 2(a), Rule 74 of the current Rulesprovides that a petition for probate of a will must showthe jurisdictional facts.

The law is silent as to the specific manner obringing the jurisdictional allegations before the court, bupractice and jurisprudence have established that they shouldbe made in the form of an applicationand filed with theoriginal of the will attached thereto. According to the factsalleged and admitted by the parties, it is evident that thecourt has acquired jurisdiction to probate the second will, inview of the presence of all the jurisdictional facts abovestated.

C. Nature of proceedings See Sections 3 and 4, Rule 76above.

CASE NOTES

In re Estate of Johnson (1918),supraAs was said in the case of In re Davis, the proceeding as tothe probate of a will is essentially one in rem, and the verynature of things the state is allowed a wide latitude indetermining the character of the constructive notice to begiven to the world in a proceeding where it has absolutepossession of the res. It would be an exceptional case wherethe court would declare a statute void, as depriving a partyof his property without due process of law, the proceedingbeing strictly in rem, and the res within the state, upon the


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ground that the constructive notice prescribed by the statutewas unreasonably short.

In re Estate of Suntay (1954)A probate is a proceeding in remand for the validity of suchproceedings personal notice or notice by publication must bemade to all interested parties. The interested parties in thecase were known to reside in the Philippines. Evidence

shows that no such notice was received by the interestedparties residing in the Philippines.The Chinese courts order does not even purport to

allow the will to probate and cannot be said to have beendone according to the basic principles followed in theprobate of wills.

Abut v. Abut (1972)The jurisdiction of the court became vested upon the filingof the original petition and upon compliance with Sections 3and 4, Rule 76.

A proceeding for probate is one in rem, such thatwith the correspoingding publication of the petition, thecourts jurisdiction extends to all persons interested in sai

will or in the settlement of the estate of the decedent. Thefact that the amended petition named Gavina Abut andadditional heirs were not included in the original petitiondid not require notice of the amended petition to bepublished anew.

Service of notice on individual heirs or legateesor devisees is a matter of procedural convenience, not ajurisdictional requisite, so much so that even if the namesof some legatees or heirs had been omitted from the petitionfor allowance of the will and therefore were not advised ofthe decree allowing the will does not ipso factobecome voidfor want of jurisdiction.

R-Infante de Aranz v. Galing (1988)It is clear from Section 4, Rule 76 that noticeof the time andplace of the hearing for the allowance of a will shall beforwarded to the designated or other known heirs, legateesand devisees residing in the Philippines at their places ofresidence if known. It is not contested that the residences ofherein petitioners legatees and devisees were known to thePasig RTC; the petition itself contained those facts, and yetdespite such knowledge, Judge Galing did not cause copiesof the notice to be sent to petitioners. The requirement ofthe law for the allowance of the will was not satisfied bymere publication of notice of hearing in a newspaper ofgeneral circulation. Proceeding in rem: Personal notice or by

publication or both is necessary.

Basa v. Mercado (1935)The Court ruled that it was not necessary for publication tobe done in three full weeks. Citing a decision of the VermontState Supreme Court, from whose jurisdiction Section 630 ofthe Philippine Code of Civil Procedure originated, theSupreme Court held that said rule does not contemplate thatthe notice referred to therein should be published for threefull weeks before the date set for hearing on the will; i.e., thefirst publication of notice need not be done 21 days beforethe scheduled hearing date. There is also no need for

publication be done in the newspaper with the largestcirculation.

D. Proof See Sections 5 to 8, 11 and 12, Rule 76 above.

E. Kinds of will

CIVIL CODE

Article 811. In the probate of a holographic will, it shall benecessary that at least one witness who knows the handwritingand signature of the testator explicitly declare that the will andthe signature are in the handwriting of the testator. If the will iscontested, at least three of such witnesses shall be required.

In the absence of any competent witness referred to inthe preceding paragraph, and if the court deems it necessaryexpert testimony may be resorted to. (619a)

CASE NOTES

Cayetano v. Leonidas (1984)The Court held that there was no denial of due process inthis case. As regards the alleged absence of notice of hearingfor the petition for relief, the records will bear that what wasrepeatedly scheduled for hearing on separate dates wasHermogenes petition for relief and not his motion to vacateorder. There is no reason why he was led to believeotherwise. The Court even admonished Hermogenes for hisfailure to adduce evidence when his petition for relief wasrepeatedly set for hearing. There was no denial of dueprocess.

Fernandez v. Tantoco (1926)

The denial of probate in this case was held to be improperIn case of opposition to the probate of a will the proponent islegally bound to introduce all of the subscribing witnesses, iavailable. They are therefore forced witnesses so far as theproponent is concerned, and he is not bound by theirtestimony to the same extent that a lititgant is bound by thetestimony of a witness introduced in ordinary course. Itfollows that the proponent of a will may avail himself oother proof to establish the instrument, even contrary to thetestimony of some of the subscribing witnesses, or all ofthem.

Vda. de Ramos v. Court of Appeals (1978) It positively appears that the will and codicil were executed

in accordance with the formalities required by law. Thedocuments were prepared by a lawyer, Atty. Manuel AlveroThe execution of the same was evidently supervised by hisassociate, Atty. Ricardo Barcena who also acknowledged thedeeds. The solemnitites surrounding the execution of a wilis attended by some intricacies not usually within thecomprehension of an ordinary layman, so as to close thedoor against bad faith and fraud, to avoid substitution of thewill, and to guarantee their truth and authenticity.

There is no showing that the above named lawyershad been remiss in their sworn duty. Consequently, theCourt of Appeals failed to consider the presumption oregularity in the execution of the documents.


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Azaola v. Singson (1960)In the case of a holographic will, it is not mandatory thatwitnesses first be presented before expert testimony may beresorted to, unlike notarial wills wherein attesting witnessesmust be presented or accounted for. This is becauseholographic wills are not required to be witnessed and theexistence of a qualified witness may be beyond the controlor knowledge of the proponent of the will.

F. Lost wills

CASE NOTES

Gan v. Yap (1958)Unlike holographic wills, ordinary wills may be proved bytestimonial evidence when lost or destroyed. The differencelies in the nature of the wills. In the first, the only guaranteeof authencity is the handwriting itself. In the second, it isthe testimony of the subscribing witness (and of the notary).The loss of the holographic will entails the loss of the onlymedium of proof. If the ordinary will is lost, the subscribing

witnesses are available to authenticate.In holographic wills, if oral testimony were

admissible only one man could engineer the whole fraud soeasily.

Rodelas v. Aranza (1982)A photostatic or Xerox copy of the holographic will may beallowed as proof of the holographic will because comparisoncan be made with the standard writings of the testator.

G. Grounds for disallowance See Sections 9, 10 and 13, Rule76 above.

CIVIL CODE

Article 839.The will shall be disallowed in any of the followingcases:

(1) If the formalities required by law have not beencomplied with;

(2) If the testator was insane, or otherwise mentallyincapable of making a will, at the time of its execution;

(3) If it was executed through force or under duress, orthe influence of fear, or threats;

(4) If it was procured by undue and improper pressureand influence, on the part of the beneficiary or of some otherperson;

(5) If the signature of the testator was procured byfraud;(6) If the testator acted by mistake or did not intend

that the instrument he signed should be his will at the time ofaffixing his signature thereto. (n)

VI. ALLOWANCE OF WILL OUTSIDE THEPHILIPPINES

RULE 77. ALLOWANCE OF WILL PROVED OUTSIDE OFPHILIPPINES AND ADMINISTRATION OF ESTATE

THEREUNDER

SECTION 1. Will proved outside Philippines may be allowed

here.Wills proved and allowed in a foreign country, according tothe laws of such country, may be allowed, filed, and recorded bythe proper Regional Trial Court in the Philippines.

SEC 2. Notice of hearing for allowance.When a copy of suchwill and of the order or decree of the allowance thereof, bothduly authenticated, are filed with a petition for allowance in thePhilippines, by the executor or other person interested in thecourt having jurisdiction, such court shall fix a time and place forthe hearing, and cause notice thereof to be given as in case of anoriginal will presented for allowance.

SEC. 3. When will allowed, and effect thereof.If it appears athe hearing that the will should be allowed in the Philippines, the

court shall so allow it, and a certificate of its allowance, signed bythe judge, and attested by the seal of the court, to which shall beattached a copy of the will, shall be filed and recorded by theclerk, and the will shall have the same effect as if originallyproved and allowed in such court.

SEC. 4. Estate, how administered.When a will is thus allowedthe court shall grant letters testamentary, or letters oadministration with the will annexed, and such letterstestamentary or of administration, shall extend to all the estateof the testator in the Philippines. Such estate, after the paymentof just debts and expenses of administration, shall be disposed oaccording to such will, so far as such will may operate upon it; andthe residue, if any, shall be disposed of as is provided by law in

cases of estates in the Philippines belonging to persons who areinhabitants of another state or country.

CASE NOTES

Vda. de Perez v. Tolete (1994)The evidence necessary for the reprobate of wills previouslyprobated outside the Philippines are (1) the due execution othe will according to foreign laws; (2) the testator has hisdomicile in the foreign country and not the Philippines; (3the will has been probated in such country; (4) the fact thathe foreign tribunal is a foreign court; and (5) the laws of aforeign country on procedure and allowance of wills. Exceptfor (1) and (5), Salud submitted all the required evidence.

In re Estate of Suntay (1954),supra

Ancheta v. Guersey-Dalaygon (2006)Ancheta, as ancillary administrator, was under duty to proveMaryland law on succession. He admitted that he merelyrelied on processual presumption. Thus the RTCdisregarded the terms of Audreys will.


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VII. LETTERS TESTAMENTARY AND OFADMINISTRATION

RULE 78. LETTERS TESTAMENTARY AND OFADMINISTRATION, WHEN AND TO WHOM ISSUED

SECTION 1. Who are incompetent to serve as a executors oradministrators.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, orwant of understanding or integrity, or by reason of conviction ofan offense involving moral turpitude.

SEC. 2. Executor of executor not to administer estate.Theexecutor of an executor shall not, as such, administer the estateof the first testator.

SEC. 3. Married women may serve.A married woman mayserve as executrix or administratrix, and the marriage of a single

woman shall not affect her authority so to serve under a previousappointment

SEC 4 Letters testamentary issued when will allowed.When awill has been proved and allowed, the court shall issue letterstestamentary thereon to the person named as executor therein,if he is competent, accepts the trust, and gives bond as requiredby these rules

SEC. 5. Where some coexecutors disqualified others may act.When all of the executors named in a will can not act because ofincompetency, refusal to accept the trust, or failure to give bond,on the part of one or more of them, letters testamentary mayissue to such of them as are competent, accept and give bond,

and they may perform the duties and discharge the trust requiredby the will.

SEC. 6. When and to whom letters of administration granted.Ifno executor is named in the will, or the executor or executors areincompetent, refuse the trust, or fail to give bond, or a persondies 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 suchperson as such surviving husband or wife, or next of kin, requeststo have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case maybe, or next of kin, or the person selected by them, beincompetent or unwilling, or if the husband or widow, or next of

kin, neglects for thirty (30) days after the death of the person toapply for administration or to request that administration begranted to some other person, it may be granted to one or moreof the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing toserve, it may be granted to such other person as the court mayselect.

A. Qualification See Sections 1 and 2, Rule 78 above.

CASE NOTES

Lim v. Diaz-Millares (1966)3

In this jurisdiction, one is considered to be unsuitable forappointment as administrator when he has adverse interestof some kind or hostility to those immediately interested in

the estate. As shown by the Civil Case above, Cirilo Lim as arelative of the deceased has some interest adverse to that ofBasilisa. Having some liabilities to Basilisa and to the estateas a whole, Cirilo can not compatibly perform the duties oan administrator.

The determination of a person's suitability for theoffice of judicial administrator rests, to a great extent, in thesound judgment of the court exercising the power oappointment and said judgment is not to be interfered withon appeal unless the said court is clearly in error.

Medina v. Court of Appeals4The Court does not look with favor on such practice oclerks of court or other court employees being appointed as

administrators of estates of decedents pending settlementbefore the probate court. The objectivity and impartiality ofsuch clerks of court or other employees so appointed asadministrators in discharging their regular functions may beeasily compromised by extraneous considerationsFurthermore, because of the administrator's fees andcompensation payable to them, it is not inconceivable thatself-interest intrudes and consciously or unconsciouslyobstacles are placed against the prompt settlement andtermination of the proceedings.

Maloles II v. Phillips (2000)In this case, an oppositor to the issuance of letterstestamentary in favor of respondent posits that the probateproceedings in a branch of the Makati RTC did noterminate upon the issuance of a probate decree, thusbarring another branch of the same court to act uponrespondents petition for the issuance of letterstestamentary. The Court held otherwise, ruling that afterthe issuance of a probate decree, there was nothing else for aprobate court to do except to issue a certificate of allowanceof the will in accordance with Section 12, Rule 73 of theRules of Court.

Republic v. Marcos (2009)5The choice of his executor is a precious prerogative of atestator, a necessary concomitant of his right to dispose of

his property in the manner he wishes. It is natural that thetestator should desire to appoint one of his confidence, onewho can be trusted to carry out his wishes in the disposal ofthe estate. The curtailment of this right may be consideredas a curtailment of the right to dispose.

As the rights granted by will take effect from thetime of death (Article 777, Civil Code of the Philippines), themanagement of his estate by the administrator of his choiceshould be made as soon as practicable, when no reasonableobjection to his assumption of the trust can be interposed

3Based on the digest of Venus Ambrona, C2013

4Based on the digest of Nickie Bolos, C2013

5Based on the digest of Gianna de Jesus, C2013


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any longer. It has been held that when a will has beenadmitted to probate, it is the duty of the court to issueletters testamentary to the person named as executor uponhis application

The Rules of Court gives the lower court the dutyand discretion to determine whether in its opinion anindividual is unfit to serve as an executor. The sufficiency ofany ground for removal should thus be determined by the

said court, whose sensibilities are, in the first place, affectedby any act or omission on the part of the administrator notconformable to or in disregard of the rules of orders of thecourt. An appellate court is disinclined to interfere with theaction taken by the probate court in the matter of removal ofan executor or administrator unless positive error or grossabuse of discretion is shown.

B. Procedure See Sections 2, 4 and 5, Rule 78 above.

CASE NOTES

In re Testate Estate of Margarita David (1956)

The old rules provide:"The personal estate of the deceased shall be first

chargeable with the payment of debts and expenses; and if thepersonal estate is not sufficient for that purpose, or its sale wouldredound to the detriment of the participants in the estate, the wholeof the real estate, or so much thereof as is necessary, may be sold,mortgaged, or otherwise encumbered for that purpose by theexecutor or administrator, after obtaining the authority of thecourt therefor."

And according to section 6 of Rule 89, the Courthas authority to fix the contributive shares of the devisees,legatees or heirs for the payment of a claim if they haveentered into possession of portions of the estate before thedebts and expenses thereof have been settled and paid.Appellant argues, however, that section 3 of Rule 89, Rulesof Court, is not applicable to the instant case on the groundthat it refers to the personal and real properties of thedeceased which are in the hands of the administrator, andnot to the properties of the estate which are already in thehands of the heiresses. This contention is likewise untenable.The residuary funds in the hands of the appellant are fundsof the estate and the Court has jurisdiction over them and,therefore, it could compel the appellant to deliver to theadministrator of this estate the necessary portion of suchfund for the payment of the Sideco claim.

Baluyut v. Pao (1976)

While the probate court correctly assumed that Mrs.Baluyut as surviving spouse enjoys preference in thegranting of letters of administration, it does not follow thatshe should be named administratrix without conducting afull-dress hearing on her competency to discharge that trust.The directive of the testator in his will designating that acertain person should act as executor is not binding on theprobate court and does not automatically entitle him to theissuance of letters testamentary. A hearing has to be held inorder to ascertain his fitness to act as executor.

A hearing is necessary in order to determine thesuitability of the person to be appointed administrator bygiving him the opportunity to prove his qualifications and

affording oppositors a chance to contest the petition. In thiscase the probate court briefly and perfunctorily interrogatedMrs. Baluyut in order to satisfy itself on her mentacapacity. The court did not give Alfredo G. Baluyut a chanceto contest her qualifications. He had squarely raised theissue as to her competency. The probate court assumed thatAlfredo G. Baluyut had no interest in the decedent's estateAs it now turned out, he is one of the legatees named in the

decedent's alleged will.

C. Order of preference See Section 6, Rule 78 above.

CASE NOTES

Capistrano v. Nadurata (1922)The selection of an administrator of the estate of a deceasedlies within the discretion of the court (sec. 642, subsec. 1Code of Civil Procedure). And the record does not containanything tending to show an abuse of discretion on the partof the lower court. On the contrary, the act of the lowercourt in overruling the objection of the opponents and

confirming the appointment as administrator of the personproposed by the applicants is not only indicative of sounddiscretion, but is right and just; for the evidence shows thatLeon Nadurata is not surviving spouse of Petra de losSantos, who died widow and not twice widow, and that theopponents Pedro de los Santos and Juan de los Santos arenot, as they pretend to be, brother of the aforesaid deceased.

Arevalo v. Bustamante (1940)It falls within the discretion of the court, to appoint to theoffice of judicial administrator a person considered to bemost qualified to defend and ensure, freely and in adisengaged manner, the interests pertaining to a testate orintestate proceeding. As a consequence, the first assignmentof error to the lower court is without basis, it not beingcontrary to article 653 of the Code of Civil Procedure whichprovides for the removal of an administrator for failure torender accounts or failure to administer the estate entrustedto his care, or for failure to comply with the orders given tohim, which is not here the case. On the other hand, be itremoval or be it dismissal, or whatever the court purports itto be, the stoppage of Aristn Bustamante from carrying outthe duties of administrator can only be ascribed to theignorance of the lower court of the valid grounds for theincapacity to discharge those duties. Because the inferiorcourt allowed the petition for the application foradministratorship to be presented ex parte, it effectively

denied the heirs of the deceased Brnabe Bustamante anopportunity to be heard in relation to their objections as toAristns capacity as Administrator.

Gabriel v. Court of Appeals (1992)In the case at bar, there is no compelling reason sufficient todisqualify Felicitas Jose-Gabriel from appointment asadministratrix of the decedent's estate. Moreover, just as theorder of preference is not absolute and may be disregardedfor valid cause 18 despite the mandatory tenor in theopening sentence of Rule 78 for its observance, so may the30-day period be likewise waived under the permissive tonein paragraph (b) of said rule which merely provides that said


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letters, as an alternative, "may be granted to one or more ofthe principal creditors."

Silverio v. Court of Appeals (1999)The order of preference in the appointment of anadministrator depends on the attendant facts andcircumstances. In this case, the appointment of Edgardo S.Silverio as administrator is proper.

In Sioca v. Jose Garcia, the court disregarded theorder of preference ratiocinating, thus:. . . The determination of a person's suitability for

the office of administrator rests, to a great extent, in thesound judgment of the court exercising the power ofappointment and such judgment will not be interfered withon appeal unless it appears affirmatively that the courtbelow was in error.

A probate court cannot arbitrarily disregard thepreferential rights of the surviving spouse to theadministration of the estate of a deceased person; but if theperson enjoying such preferential rights is unsuitable thecourt may appoint another person.

In Esler v. Tad-y, the Court answered in the

affirmative the query whether the probate court, in theexercise of its discretion, may disregard the order ofpreference to the administration, set forth in the Rules ofCourt.

VIII. OPPOSING THE ISSUANCE OF LETTERSTESTAMENTARY; PETITION AND CONTEST FORLETTERS OF ADMINISTRATION

RULE 79. OPPOSING ISSUANCE OF LETTERSTESTAMENTARY. PETITION AND CONTEST FOR LETTERS OF

ADMINISTRATION

SECTION 1. Opposition to issuance of letters testamentary.Simultaneous petition for administration.Any personinterested in a will may state in writing the grounds why letterstestamentary should not issue to the persons named therein asexecutors, or any of them, and the court, after hearing uponnotice, shall pass upon the sufficiency of such grounds. A petitionmay, at the same time, be filed for letters of administration withthe will annexed.

SEC. 2. Contents of petition for letters of administration.Apetition for letters of administration must be filed by aninterested person and must show, so far as known to thepetitioner.

(a) The jurisdictional facts;(b) The names, ages, and residences of the heirs, and

the names and residences of the creditors, of the decedent;(c) The probable value and character of the property of

the estate;(d) The name of the person for whom letters of

administration are prayed.But no defect in the petition shall render void the

issuance of letters of administration.

SEC. 3. Court to set time for hearing. Notice thereof.When apetition for letters of administration is filed in the court having

jurisdiction, such court shall fix a time and place for hearing thepetition, and shall cause notice thereof to be given to the knownheirs and creditors of the decedent, and to any other personsbelieved to have an interest in the estate, in the Manner providedin sections 3 and 4 of Rule 76.

SEC. 4. Opposition to petition for administration.AnyInterested person may, by filing a written opposition, contest thepetition on the ground of the incompetency of the person fowhose letters are prayed therein, or on the ground of thecontestants own right to the administration, and may pray thatletter issue to himself, or to any competent person or personsnamed In the opposition.

SEC. 5. Hearing and order for letters to issue. At the hearing othe petition, it must first be shown that notice has been given ashereinabove required, and thereafter the court shall hear theproofs of the parties in support of their respective allegationsand if satisfied that the decedent left no will, or that there is nocompetent and willing executor, it shall order the issuance oletters of administration to the party best entitled thereto.

SEC. 6. When letters of administration granted to anyapplicant.Letters of administration may be granted to anyqualified applicant, though it appears that there are othecompetent persons having better right to the administration, isuch persons fail to appear when notified and claim the issuanceof letters to themselves.

A. Contents of petition See Section 2, Rule 79 above.

B. Interested party See Sections 1 and 2.

CASE NOTES

Espinosa v. Barrios (1940)6

In relation to the testate estate of Florencio Jagunap, astranger who has no material or direct interest in the estateof the estate has no right to intervene nor to appeal fromany order given by the court, although apparently it wouldprejudice him.

Trillana v. Crisostomo (1951)Appellants argue that they are interested parties andtherefore may appeal in the present case, because in theevent the will of October 19 is disallowed and in its steadthat of August 16 is allowed, and the legacies made in thelatter are declared invalid or the legatees incapable toinherit, the legacies will go to appellants. This argument hasno merit. In civil actions and special proceedings, unlessotherwise provided by law, the interest required in orderthat a person may be a party on appeal must be material anddirect, so that he will be materially and directly benefited orinjured by the court's order, decree or judgment; and notindirect or contingent. The interest claimed by theappellants is purely contingent or dependent upon severauncertain and future events, to wit: (1) The disallowance othe will of October 19, 1948, (2) The allowance of the will ofAugust 16, 1948, and (3) The invalidation of certain legaciesleft in the said will of August 16, 1948.

6Based on the digest of Gianna de Jesus, C2013


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Duran v. Duran (1967),supra

In re Intestate Estate of Irene Santos (1962)7It cannot be successfully denied that Adela Santos Gutierrezis an indispensable party to the proceedings in question. Herinterest in the estate is not inchoate, it was established at thetime of death of Irene Santos. While it is true that sheexecuted a deed of assignment, it is also a fact that she asked

the same to be annulled, which action is now pending beforethe Rizal CFI.Although Adela had filed a manifestation dropping

herself from the proceedings and presenting therewith thesupposed Deed of Assignment, the record, nevertheless failsto show that action thereon had been taken by the probateCourt. Every act intended to put an end to indivision amongco-heirs and legatees or devisees is deemed to be a partition,although it should purport to be a sale, an exchange, acompromise, or any other transaction (Art. 1082, CivilCode).

No serious argument can be offered to deny the co-heirship of appellee in the estate under probate. It appearingthat the transaction is in the nature of extrajudicial

partition, court approval is imperative, and the heirs cannotjust divest the court of its jurisdiction over the estate andover their persons, by the mere act of assignment anddesistance. But even if the partition had been judiciallyapproved on the basis of the alleged deed of assignment, anaggrieved heir does not lose her standing in the probatecourt.

Tayag v. Tayag-Gallor (2008)8Respondent in this case had not been given the opportunityto present evidence to show whether she had beenvoluntarily recognized and acknowledged by her deceasedfather because of petitioners opposition to her petition andmotion for hearing on affirmative defenses. There is, as yet,no way to determine if her petition is actually one to compelrecognition which had already been foreclosed by the deathof her father, or whether indeed she has a material and directinterest to maintain the suit by reason of the decedentsvoluntary acknowledgment or recognition of herillegitimate filiation.

The Court found that the allegation thatrespondent is an illegitimate child of the decedent sufficeseven without further stating that she has been so recognizedor acknowledged. A motion to dismiss on the ground offailure to state a cause of action in the complainthypothetically admits the truth of the facts alleged therein.Assuming the fact alleged to be true, i.e., that respondent is

the decedents illegitimate child, her interest in the estate assuch would definitely be material and direct. The appellatecourt was, therefore, correct in allowing the proceedings tocontinue, ruling that, "respondent still has the duty to provethe allegation (that she is an illegitimate child of thedecedent), just as the petitioner has the right to disprove it,in the course of the settlement proceedings."

7Based on the digest of Giselle Mauhay, C2013

8Based on the digest of Charles Icasiano, C2013

C. Procedure See Sections 3 to 6, Rule 79 above.

CASE NOTES

Avelino v. Court of Appeals (2000)When a person dies intestate, or, if testate, failed to name anexecutor in his will or the executor so named isincompetent, or refuses the trust, or fails to furnish the bond

required by the Rules of Court, then the decedent's estateshall be judicially administered and the competent courtshall appoint a qualified administrator in the orderes

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