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RULE 72: 1. DISTINCTION BET.

CIVIL ACTION AND SPECIAL PROCEEDING CA is by which a party sues another for enforcement of right, prevention or redress of wrong governed by ordinary rules of procedure SP is a remedy by which a party seeks to establish a status, a right or a fact. No formal pleadings are required unless statute expressly provides and is granted upon appln or motion Therefore, an action for reconveyance and annulment of title with damages in CA and matters relating to settlement of estate partakes the nature od spcpro w/c is w/in juris of prob8 ct. DETERMINATION OF HEIRSHIP GR: the determination of heirship and establishing their status as compulsory heir mus be ventilated in specpro to avoid confusion and conflicting decision, however RTC may pass upon issues of legal heirs and legality of marriage should, o There is only 1 roperty in issue o And if it is superflous as parties already presented evidence. Thus, sp would be impractical, costly, lenghty and burdensome TERMINATION OF PROCEEDINGS Probate court should not terminate the case on ff. reasons o Case is non-contentious becoz it does not depend on the will of the actor but on the condition of things and persons. o Dismissal hould be ordered only in extreme case not as penalty for neglect but if consistent with equity o Motu proprio dismissal under rule 17 is not applicable. It cannot categorized as order. No warn to parties that failure to comply order on time warrant dismissal. o Amicamle settlemnt is strongly encourage but parties are not oblige to

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RULE 73: 1. LIMITED JURISDICTION OF PROBATE COURT As a rule, probate court has limited jurisdiction and can only resolve issue of identity of will, due rd execution and testamentary capacity, No power or authority to declare a sale or TCT under name of 3 person null and void o However it may hear and pass upo question of ownership when its purpose is to det w/n the property should be include or not in the estate, which adjudication is incidental and provisional But a property covered by torrens title should enjoy the presumption of being owner of the property until their title is nullified in a direct and not collateral action. Adoption decree certified by court enjoys the presumption of regularity constituting prima facie facts therein and mere imputation will not be allowed untill proof to contrary is offered in separate proceeding brought for that purpose ot in probate proc The q. of jurisdiction of court appealing as regard to the place of residence of deceased, irregularities of publication, Certiorari will not lie in absence of motion for recon in that same court. MEANING OF RESIDENCE Domicile is not commonly change by the presence in the place for ones own health Acts of the deceased shortly immediately before his death prove his intention to reside in 1 place Residence of deceased or location of his estate is not an element of jurisdiction but merely of venue Court first taking cognizance of settlement of estate shall exercise juris to the exclusion of all other courts o However if that intestate court upon learning that petition for probate of will has been commenced in another court where decedent has lived with ss and minors, it shall suspend the or hold in abeyance the proceeding and decline to take cognizance.

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Residence requires bodily presence while domicile requires both bodily presence and intention to make ones domicile Petition for LOA should be filed in RTC of province where deceased reside at the time of his death In election case, residence and domicile is treated 1 and the same, but for for fixing the vnue under ROC, residence is his personal, actual physical habitation which may not be necessarilly his domicile, as long as he resides with continuity and consistency CLAIMS FOR OR AGAINST CONJUGAL PARTNERSHIP When marriage is dissolved by death of either husand or wife, partnership affairs must be liquidated in the testate or intestate proceedings

RULE 74: 1. EXTRA JUDICIAL PARTITION If heirs desires to partition among themselves the estate, they can do this by mutual agreement w/o instituting judicial administrator. But in case they do not mutually agree on how is it to be divided or who did not received their part they can petition for partition when no debts is existing in the estate and heirs are lawful age But even if estate does not have debts, it does not preclude them to institute administration proceedings nor ordinary action for partion So any resultant delay and necessary expenses incurred must deemed to have been voluntarily assumed Recourse to admi proceeding even if estate has no debts is sanctioned only if heirs has good reasons for not reorting to action for partition as the latter is more encourage so estate would not be burdened and subject to unnecessary risk of being wasted and squandered No law requires partition among heirs in writing, put in public ins and be registered in order to be valid, the registration and public doc is for the protection of creditors and heirs themselves as a constructive notice to the others Statute of frauds neither applied as it is not conveyance of real property from 1 to another but rather confirmation and ratification of titles EJ partition executed voluntarily produced legal status, and their division is conclusive, until and unless it is shown that there are debts existing against estate Should there be any claim alleging existence of other properties can be more threshed out in admi proceeding 2 YEAR PRESCRIPTIVE PERIOD Whenever there is a voluntary division of estate, without proceeding and estate is distributed, within 2 years after distribution and there are debts outstanding, the creditor may compel the distributies to pay and held liable. Thus, appointment of new administrator can applied for by such creditor Thus, after 2 years, prescription sets in, no claims can be had against the state. Judicial partition in probate proceedings does not bind the heirs who were not parties thereto as it is not final and concluive. The co heir who was deprived of his share may still w/in the period of 10 yrs bring an action for reivindicacion in the province where property located ANNULMENT OF EXTRAJUDICIAL SETTLEMENT While generally, action for partition among co-heirs does not prescribe, this is true only if heirs hold the title not in adverese title, thus if any claim adverse title aginst the other, statute of limitations runs. So if action for reconveyance is based on implied trust resulting from fraud, it may be brought within 4 years from discovery. Discovery is deemed to have taken place when the EJ deed was filed with RD and new cert is issued The 2 year prescriptive period is applicable if the person participated, taken part and had notice of EJ partition

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RULE 75: 1. PROBATE MANDATORY After death of testator, person having custody of the will neglect w/o reasonable cause 2 deliver the same may after notice by court having juris(probate court) commit him in prison until he complied, this does not applied and be ordered by an action in criminal prosecution. STATUTE of limitation has no application to probte of wills and special proceedings, it only applies to civil actions for the protection of testators expres wishes Therefore any person interested may anytime after death of testator petition the court for its allowance Heirs cannot sue for partition in accordance with will w/o first securing its allowance Probate of will is a proceeding in rem and cannot be dispensed with a and substitute by other proceeding of partition or reivindacion In ante mortem probate, the issue of heirship, and validity of provisions is yet to be determine as the testator still living. Will still subject to revocation A probate dcree finally and definitely all questions. It is appealable and must be made on time otherwise it become conclusive If an action filed is based on implied trust, prescriptive period is 10 years for reconveyance PROBATE PROCEEDING IN REM Probate is a proceeding in rem if published as it is notice to the whole world that it bars indefinitely all who be minded to make an objection Person entitled to be notified are those included in will and forced heir A decree admitting a will 2 probate is concusive with respect to due execution and cannot be impugned on the grounds authorized by law xpt for fraud DISCOVERY OF WILL DURING INTESTATE PROCEEDING While probate court had no jurisdiction to entertain petition for probate of alleged will in intestate proceeding, the filing of the separate proceeding for its probate is proper to evaluate if will was really revoke or not FALSE WILL A presentation of machine copy of a will as evidence by prosecution if not objectd to will be admitted and so its validity and due excution

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RULE 76: 1. JURISDICTIONAL REQUISITES FOR PROBTE OF WILL The application for probate of will to sufficiently acquire juridiction of court must a. allege the residence of deceased, indispensable facts and circumstances, that the applicant is the executor named in the will or has the custody of the will; b. the original of document must be presented; c. if non, sufficient reason for its non presentation and acceptance of copy and duplicate The service of notice on individual heirs or legatees is a matter of procedural and not jurisdictional requisites, thus even if name of legatees or heirs omitted in the petition for its llowance and were not advised, the decree allowing the will does not ipso facto become void for want of notice Notice does not mean that it shoul be published for 3 full weeks before the date set for hearing. Therefore the publication of notice need not be made 21 days before hearing A newspaper of general circuation is one that is published for deissemination of local news, ha a bonafide ubscription list of paying subscrers and published at regular interval The reqt of the law for the allowance of will was not satisfied by mere publication, however, notice upon heirs, legatees, devises shall be necessary only when they are known or when their places of residence are known. If not, publication is sufficient to cquire jurisdiction SCOPE OF INQUIRY OF PROBATE PROCEEDING:

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While normally probate of a will does not look into intrinsic validity only untill it is authenticated but only to capacity of testator and compliance with the requisites reqd by law, Xpns;for practical consideration it may be considered to resolved intrinsic validity. Such as valid disinheritance to avoid protracted litigation and multiplicity of suits , waste of tims, effort.expense. Or whenever the legal capacity to institute probate proceeding is in issue Or when on its fac the will appears to be intrinsically void PROOF REQUIRED ON PROBATE HEARING GR: all attestng witnesses should be examoned and called for in order to establish a will Xpn: 1 witness is sufficient if, no contest or opposition with respect to its probate, were 2 subscribing witnesses were not w/in juris of court and due execution is established undoubtedly When will is conteted the attesting witnesses must be called upon to prove the will if their bodily presence cannot be had as they reside outside province were will is probated then their testimony thru deposition is proper A will found to be executed in accordance with law but denied by 2 ttesting witnesses, the presumotion of regularity shall sustain and can be overcome only thru clear and convincing evidence Even if any or all of the subscribing witnesses testified against its due execution, the will may still be allowed if court is satified from testimony of other parties and evidence presented as to due execution The subscribing witnesse are mere best witnesses but to deserve credit their testimony must be reasonable. Probate of will is a spec proc not adversarial in character. Rules on evidence should be relax Since law does not require any evidence of revocation or cancellation of will to be preserved, presumption of cancellation can be inferred if; a)after due search, the original will cannot be found; b)it cannot be found but in the possession of the testator when last seen c) when testator had ready access 2d will and cannot be found after his death and destroyed by other person w/ his consent But this presumption is not conclusive and may be overcome by other cometent evidence Copy of will maybe admitted only if it made to appear that original has been lost and not cancelled nor destroyed by testator The execution and contents of a lost and destroyed holographic will may not be proved by bar testimony of witnesses who have seen it, It is the document itself is the best proof that it is entirely written, dated and signed by Testa. And only 1 witness is necessary to prove his hanwriting and sig. unless contested 3 witnesses is reqd, if none, expert testimony or court can compare it But a photostatic copy of will maybe allowed becoz comparison can be made. As a rule, ommisions which can be supplied by an examination of the will itself w/o resorting to extrinsic evidence will not be fatal and maybe allowed, but if the only support is evidence aliunde or parol evidence, it would invalidate the will

RULE 77 1. ALLOWANCE OF WILL PROVED ABROAD Administration of dcedents estate abroad was principal or domicilliary while the administartion taken out in the philippines is ancillary The 2 proceedings are separate and independent. Becos admi of estate extends only to assets of decedent found w/in the state or country where it is granted Administrator has no power over property in another tate or country Where the requisites of philippine law are not proven to have complied with, the same shall not be allowed in the philippines

Wills proved and allowed in other country accdg to the laws of such cty maybe allowed, filed and recorded by phil court. But the legal requirements for the excution of valid will in the foreign country should also be established by competent evidence, in absnce thereof, processual presumption applies. The ff then must be abl to established: o That the court is a probate court o The law on procedure in the probate or allowance of will thereat o The legal requirment for the execution of a valid will The intrinsic validity of a will of a foreign national shall be governed by her national law While foreign laws do not prove themselve in our jurisdiction as our courts are not authorized to take judicial notice of them, the ancillary administrator is duty bound to introduce evidence the pertinent law of the foreign country

RULE 78: 1. QUALIFICATIONS OF EXECUTRIX AND ADMINISTRATORS Letters of admi shall be granted to SS, next of kin, to any principal creditor if non, any other person as court may appoint in this order, thus lower court necessarily had to pas upon the claim of relationship to be able to appoint an admiinistrator in accordance with the preference, and not to det. Who are the heirs entitled to the estate; the determination theor is not final as to the basis of distribution ORDER OF PREFERENCE rd If the court finds it best for the interest of ll concerned to appoint a disinterested 3 person as administrator especially when there is a controversey likely to arose The principal consideration with thw appointment of administrator is his interest in the estate of deceased The preference in order is not Absolute if there are other positive and clear reasons to justify the appointment of other Such as when they appear to be unsuitable or has adverse interest or hostile to the interested parties But generally probate court cannot arbitrarily disregard the preferential rights of the parties provided for by law

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