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Amen | Remedial Law Review 2 Notes | 2013

Remedial Law Review 2

Notes on Special Proceedings
Governing laws/rules:
Rules 72-109 pertains to the Rules on Special Proceedings. However, there are rules which are considered
ineffective, impractical or impasse, to wit, Rule 106 (Constitution of Family Home), Rule 104 (Voluntary Dissolution
of Corporations). Others remain but not used, say, Rule 99 (Adoption and Custody of Minors). The rules on
Guardianship were amended and Rule 103 (Change of Name) and Rule 108 (Cancellation or Correction of Entries
in the Civil Registry) were both amended by RA 9048 which was further amended by RA 10172, around last year,
Order of Importance

Settlement of Estate- this states the meat of Special Proceedings.


Guardianship- practically the same rules of procedure as settlement of estate, because only that in
settlement of estate, the subject is dead unlike in guardianship, the subject is still alive. Physically alive,
but mentally dead or a minor. That is the difference between the two.


Adoption- although this is already studied in civil law; it is important because of the new rule on
adoption, not the laws on adoption (R.A. 3552, the Domestic Adoption Act of 1998 as well as R.A. 8043,
the Inter Country Adoption Law of 1995) not that because that is substantive. I am talking of the new rule
on adoption which took effect sometime in August 2004, thats why I think its the second most important
thing to discuss here.


Change of Name/ Correction of entries- Again, because of the new law. So the possibility of being
asked in the BAR is great. (Read also R.A. 9048).


Habeas Corpus- a peculiar kind of special proceeding

Definition of Special Proceeding

Under Rule 1, Section 3, a special proceeding is a remedy by which a person seeks to establish a status, right or
particular fact.
Why Special?
Because primarily, the rules mandating Special Proceedings are governed not by the ordinary civil action rules, but
has its own nuances. For example, because the objective is the establishment of a right, status, or a particular fact,
summons, here, is ordinarily not needed. In special proceedings, there is no defendant, so there is no need for
summons. Publication, is the means through which the court can acquire jurisdiction over the case. Summons, as
we have studied is the way by which a court acquires jurisdiction over the person of the defendant (Rule 14). The
only exception is, of course, Habeas Corpus Proceedings wherein you name a respondent but the
respondent here is different from a defendant because summons is not necessary.

The law on prescription will not apply. In that, the probate of the will can still be done anytime
because what the law only requires for period to apply is on the duty to show/present the will within
10 days from knowledge of death.

Case: Erlinda Pilapil and Heirs of Donata Ortiz Briones vs. Heirs of Maximino Briones, GR No. 150175,
February 5, 2007, J. Chico-Nazario.
FACTS: Petitioners are the heirs of the late Donata Ortiz-Briones (Donata), consisting of her surviving sister,
Rizalina Ortiz-Aguila (Rizalina); Rizalinas daughter, Erlinda Pilapil (Erlinda); and the other nephews and nieces of
Donata, in representation of her two other sisters who had also passed away. Respondents, on the other hand, are
the heirs of the late Maximino Briones (Maximino), composed of his nephews and nieces, and grandnephews and

grandnieces, in representation of the deceased siblings of Maximino. Maximino was married to Donata but their
union did not produce any children. When Maximino died, Donata instituted an intestate proceeding to settle he
husbands estate before the CFI. The court a quo issued a letter of administration appointing Donata as the
adminstratrix of the estate. Subsequently, it likewise award ownership of the properties to Donata and the said
order was recorded in the Primary Entry Book of the Register of Deeds, and by virtue thereof, received new TCTs,
covering the said properties, now in her name. The controversy arise when Donata died and one of her nieces,
petitioner herein Erlinda Pilapil instituted before the RTC a petition for the administration of the intestate estate of
Donata. Erlinda and her husband Gregorio was later on appointed as the administrators of the estate. Petitioner
claimed exclusive ownership over three parcels of land based on the two deeds of donation allegedly executed in
her favor by her aunt Donata. The other heirs opposed Erlindas claimed.
Meanwhile, Silverio Briones, filed a petition before the RTC for letters of administration for the intestate
estate of the late Maximino, which was initially granted by the court, allowing Silverio to collect rentals
from the said estate. But then Gregorio filed with the RTC a Motion to Set Aside the Order, claiming that the said
properties were under his and his wife administration. The RTC set aside Silverios administration. Hence, the heirs
of Maximino filed a Complaint with the RTC against the heirs of Donata for the partition, annulment, and recovery
of possession of real property. They alleged that Donata, as administratrix of the estate of Maximino, through fraud
and misrepresentation, in breach of trust, and without the knowledge of the other heirs, succeeded in registering in
her name the real properties belonging to the intestate estate of Maximino. The RTC ruled in favor of the heirs of
Maximino declaring that they are entitled to the of the real properties covered by the TCTs issued in Donatas
named. And it ordered Erlinda to reconvey to the heirs the said properties and render an accounting of the fruits
thereof. The heirs of Donata appealed the said decision, the Court of Appeals affirmed the RTCs decision. This
case was then elevated before the Supreme Court.
ISSUE: Whether the order issued by the CFI awarding the properties of Maximino to Donata is void considering
that no notices were sent to the other heirs of Maximino?
HELD: No. While it is true that since the CFI was not informed that Maximino still had surviving siblings and so the
court was not able to order that these siblings be given personal notices of the intestate proceedings, it should be
borne in mind that the settlement of estate, whether testate or intestate, is a proceeding in rem, and that the
publication in the newspapers of the filing of the application and of the date set for the hearing of the same, in the
manner prescribed by law, is a notice to the whole world of the existence of the proceedings and of the hearing on
the date and time indicated in the publication. The publication requirement of the notice in newspapers is precisely
for the purpose of informing all interested parties in the estate of the deceased of the existence of the settlement
proceedings, most especially those who were not named as heirs or creditors in the petition, regardless of whether
such omission was voluntarily or involuntarily made.
Moreover, there stands a presumption, in the absence to the contrary that the CFI judge, regularly performed his
duties in the case which included sending out notices and requiring the presentation of proof of service of such
notices. The heirs of Maximino did not profound sufficient evidence to debunk the presumption and that they only
made general denial of the knowledge of the case.
A review of the records fails to show any allegation or concrete proof that the CFI also failed to order the publication
in newspapers of the notice of the intestate proceedings and to require proof from Donata of compliance therewith.
Neither can this Court find any reason or explanation as to why Maximinos siblings could have missed the
published notice of the intestate proceedings of their brother.
Moreover, even if Donatas allegation that she was Maximinos sole heir does constitute fraud, it is
insufficient to justify abandonment of the CFI Order, considering the nature of intestate proceedings as
being in rem and the disputable presumptions of the regular performance of official duty and lawful
exercise of jurisdiction by the CFI in rendering the questioned Order in the case at bar.
1. Settlement of Estate (Rule 74- Summary Settlement of Estate)
What is an estate?
It is the totality of assets and liabilities of the decedent.

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Bond with the said Register of Deeds in an amount equivalent to the value of the personal property
involved as certified to under oath by the parties.

It is because in this case, the person whose estate is subject to controversy is already NOT around.


Conditioned upon payment of any just claim charged with a liability to creditors, heirs, or other persons
for the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may
have been made.

2 Modes of Settlement of Estate


This shall be published in a newspaper of general circulation once a week for 3 consecutive weeks.

Why is that that the Settlement of Estate is complex?




Summary Settlement of Estate of small value


Judicial partition (Rule 69)


Escheat (Rule 91)


Administrative/Conventional Settlement of Estate (Rule 73-90)

Rules regarding Extrajudicial Settlement of Estates


It shall be presumed that the decedent left no debts if NO creditor files a petition for letters administration
within 2 years after the death of the decedent.


No extrajudicial settlement shall be binding upon any person who has not participated therein or had no
notice thereof.


Extrajudicial partition


Affidavit of Self-Adjudication

A. Extrajudicial Partition
Situation: When X, the decedent left A, B, C, and D as heirs. The four of them enter into extrajudicial partition of the
estate left by X. They had it published, and proceeded to the Register of Deeds, and finally, the distribution of the
estate in accordance with the partition entered into. This pertains to an estate composing real properties.
However, if the estate composes personal properties, the four of the heirs can right away distribute among
themselves the personal properties left by X.
B. Affidavit of Self-Adjudication
The requirements include the following:

The decedent dies without a will.


There is only one heir left by the decedent.


Whether or not there is a debt left by the decedent so long as if there is debt, the estate can make good
of it.

A. Summary Estate of Small Value

This is provided for under Rule 74 (Summary Settlement of Estates).
Requirements under the Rule:

The gross value of the estate of a deceased person, (testate or intestate) DOES NOT EXCEED P10,000.


A petition alleging the 1st requirement must be filed by an interested person.


This can only be done upon hearing which shall be held not less than 1 month nor more than 3
months from the date of the last publication of a notice.


The notice must be published once a week for 3 consecutive weeks in a newspaper of general


Notice to other interested persons as the court may direct.


This can be proceeded to by the court summarily and even without the appointment of executor or
administrator, and without delay to grant, if proper, allowance of will. The purpose will be.

To determine who are persons legally entitled to participate in the estate.


To apportion and divide among the heirs after payment of such debts of the estate as the court
shall then find to be due, to persons in their own right, if they are of lawful age and legal
capacity or by their guardians or trustees legally appointed and qualified, if otherwise, shall
thereupon be entitled to receive and enter into the possession of the portions of the estate so
awarded to them respectively.


To also make such other orders as may be just respecting the costs of the proceedings and all
other orders and judgments made or rendered in the course thereof shall be recorded in the
office of the clerk, and the order of partition or award, if it involves real estate, shall be
recorded in the proper registers office.

How do you undergo with the Affidavit of Self-Adjudication?

The word suggests already that it is an affidavit, which in there, you have to state that your father or your mother
died; and that he/she left the following properties; and that you are the only heir of your parent ( evidenced by the
marriage contract of your parents and your birth certificate); and that the estate are such and such (describe with
particularity if the property happens to be a real property), valued accordingly; and that they are found there
(location of property). After complying with the same, you simply submit that to the Register of Deeds and the
Register of Deeds will act on it only after you comply with the requirement of publication and if there are
personal properties belonging to the estate, you have to put up a bond according to the value or upon the
discretion of the register of Deeds. This is extrajudicial; hence, the court has no participation whatsoever. You
simply submit to the Register of Deeds, the Register of Deeds acts on it and if there is already publication, once a
week for 3 consecutive weeks in a newspaper of general circulation, the Register of Deeds will simply transfer the
title in favor of the affiant.


Rules regarding Summary Settlement of Estate of Small Value


If within 2 years after settlement and distribution of an estate, an heir or other person has been
unduly deprived of his lawful participation in the estate- such heir or such other person may compel
the settlement of the estate in the courts for the purpose of satisfying such lawful participation.


If within 2 years, it shall appear that there are debts outstanding against the estate which have
not been paid or that an heir or other person has been unduly deprived of his lawful participation
payable in money- the court may by order for that purpose, after hearing settle the amount of such
debts or lawful participation and order how much and in what manner each distribute shall contribute in

Requirements of both Extrajudicial Settlement of Estate


The necessary filing of public instrument or by stipulation in pending action for partition or the sole heir in
the latters affidavit of self-adjudication.

Distributees shall be required to file a bond in an amount to be fixed by the court for personal property,
conditioned for the payment of any just claim.

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the payment thereof and may issue execution, if circumstances require, against the bond or against the
real estate belonging to the deceased or both.

When can minor or incapacitated person file a claim against estate in this Rule? If on the date of
the expiration of the period of 2 years, the person authorized to file a claim is a minor, mentally
incapacitated, or is in prison or outside of the Philippines, he may present his claim within one (1) year
after such disability is REMOVED.

What are the orders of the court after a petition is sufficient in form and substance?

Make an order of hearing and such shall NOT be more than 6 months after entry of order.


Direct the publication of a copy of the order at least once a week for 6 consecutive weeks.

What will be the remedy of the Respondent?

B. Judicial Partition
This is provided for under Rule 69 on Partition.

When the petition does not state facts which entitle the petitioner to the remedy prayed for, the respondent may file
a MOTION TO DISMISS the petition.

C. Escheat

To whom will the property escheated be assigned?

In another form of Judicial Settlement, Escheat tells us that if a person dies without a will, without
an heir, and no debts, then the Office of the Solicitor General or his representative (such as the
provincial or city prosecutor) may file a petition, under the directive of the President of the
Philippines, an Escheat Proceeding.
Requirements before filing:

Person dies intestate


Is there a possibility to still file an escheat proceeding despite the

presence of a will? Yes. Even if the decedent died testate but his will was
NOT PROBATED, it is as if he has no known heirs and there are no persons
entitled to his property.


Seized of real or personal properties in the Philippines


Left no heir or person by law entitled to the same


If resident, RTC where the deceased last resided or in which he had estate.


If non-resident, RTC of the place where his estate is located.

But if it happens that during the pendency of the proceeding, a will pops up, and then the
proceeding is discontinued.

If an heir, devisee, legatee, widow, widower or other person entitled to such estate (PERSON WITH
INTEREST) pops up and files a claim thereto with the court within 5 years from the date of such
judgment, then the proceeding may be suspended and such appearing person with interest shall
establish his right otherwise, after the hearing, the property will go to the government. This escheat
proceeding is founded on the theory that all lands belong to the State known as the Regalian
Doctrine that you studied under LTD (Land Titles & Deeds and he who claims otherwise has the
burden of proof so after the escheat proceedings, the property belonging to the estate will go to the
city or municipality where it is found) and so as the Order of Succession in Civil Code.

2. If real property- to the Municipality or city where the property is situated.

3. If the deceased never resided in the Philippines- to the Municipality of city where the property may be

Under Rule 91, Sec.5 is another form of escheat because that was given in the BAR 5 years ago.
This speaks of REVERSION. In other words, the property was acquired by an individual in violation
of the Constitution. Under the Constitution, any person, even foreigners who were former Filipinos,
can now acquire property in the Philippines and that was given more strength because of the Dual
Citizenship Law. Actions for REVERSION are proper in illegal sales of land to disqualified aliens.
This will in no way apply to properties taken from enemy nationals after WORLD WAR II and which
were reacquired by the Republic because such reacquisition was in pursuant to the Philippine
Property Act of 1946 and not by virtue of an ESCHEAT PROCEEDING. The action must be
instituted in the province where the land lies in whole or in part.

Even if title thereto was not transferred to the Government, can it be escheated to local
government? No.

The thirds instance of escheat is that of unclaimed dormant accounts for 10 years under the
Unclaimed Balance Act which shall be filed at the RTC of the place where the dormant deposits
are found.

The right to escheat may be waived expressly or impliedly.


the distribution of the estate of the decedent to be instituted, the proper petitions must be presented
and the proceedings should comply with the requirements of the Rule. This is so because, an
escheat proceeding does not have the power to order or proceed with the distribution of the estate
of a decedent in escheat proceedings and adjudicate the properties to the oppositor. (Municipality of
Magalloon, Negros Occidental vs. Ignatius Henry, Oct. 26, 1960)

Where to file?

1. If personal property- to the Municipality or city where he last resided.

The period of filing claims is WITHIN 5 YEARS FROM DATE OF JUDGMENT, and such 5 years
shall be reckoned from the DATE THE PROPERTY WAS DELIVERED TO THE STATE. However, if
the property has been sold, the municipality or city shall be accountable only for such part of the

D. Administrative/Conventional Settlement of Estate

The court, at the instance of an interested party, or on its own motion, may ORDER THE
ESTABLISHMENT OF A PERMANENT TRUST, so only the income from the property shall be

Rule 73- Venue and Processes

So if the proceeding is in Manila, but the property escheated is in Calamba, the property escheated
located in Calamba will go to the City of Calamba and not to the City of Manila. The same thing with
personal property, where it may be found and the Rule is very specific that the property will be spent
for the benefit of public schools, and public charitable institutions and centers in said municipalities
or cities.

This is provided for under Rule 73-90 of the Rules of Court.

In this Rule, the word VENUE never appeared. But the word jurisdiction appears three times.
What court has jurisdiction over settlement of estate cases?

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The jurisdiction is determined based on the GROSS VALUE of the property subject to settlement. It is in RTC, if the
gross value exceeds 300,000 outside Metro Manila or if it exceeds 400,000 within Metro Manila. However, it is in
MTC if the otherwise appears.

creditor, and with more reason, if you are an heir, you have an interest. If you are in the custody of the will, and
you filed a petition for settlement of estate, you have to attach the will in your petition. But if you are not in custody
of the will and you are interested in the settlement of the estate, you simply file a petition without the will

What will be the relevance of VENUE in this Rule?

This is provided for in the long line of cases starting from Cuenco vs. Cuenco, Fule vs. CA and latest is San Luis
vs. San Luis. It is now settled (because of these cases) that residence is only a matter of venue. It is not a
matter of jurisdiction.
Cuenco vs. Cuenco
This case of Cuenco is about Senator Cuenco. That Cuenco Street in Quezon City, parallelled to Espaa or
Quezon Blvd. He was a resident of Cebu but also had a house in Quezon City because he was a member the
Senate. When he died in Quezon City, his residence was in Cebu. When he died, he was already a widower at the
time, so he had two families: the first family with his first wife and the second family with his second wife. His
second wife, staying with him in Quezon City, filed a petition for the settlement of his estate in the RTC (Then
CFI) of Q.C. After the 9- day novena for his demise, the heirs of Senator Cuenco in Cebu City, filed a petition for
settlement of his estate in Cebu. This reached the SC. The issue was in fact wrong: Which court has
jurisdiction? It is not a matter of jurisdiction but only of venue. But the greater error here is not the error of the
petitioners but the error of the Court. Why? Because the Q.C. Court on its own initiative (motu propio) said we are
going to give way to the court in Cebu to settle the estate. That cannot be done because under the Rule, the
court which first takes cognizance of a petition for settlement of estate, takes it to the exclusion of all other
courts. (Exclusionary Rule in Special Proceedings) And so, which court has jurisdiction? Both courts have
jurisdiction actually, but because of the Rule, since it was first filed with the Q.C. Court, it was already taken
cognizance of by said court in Q.C. to the exclusion of all other courts, including the Cebu Court . That is
why if ever the court cedes its authority in favor of the Cebu Court, that is wrong. It should have been correct if
anybody interested in the petition files a motion to dismiss on the ground of improper venue but there was none in
Quezon City court NOT in Cebu court.

This can also be evidenced by the provision under Rule 76 Section 3 that, upon presentation of the will to the court
having jurisdiction, the court will now set the date for hearing thereof with the exception when the testator on its
own initiative probated his will during his lifetime, in which case, no publication is required and notice will only
be required to be made to compulsory heirs. Hence, SURRENDER here is tantamount to a petition.
Situation: H is a resident of Caloocan and he executed a will. He gave it to his kumpadre as a custodian who lived
in Baguio. H died in Caloocan. The kumpadre surrendered to RTC of Baguio City which is the court of proper
jurisdiction, the will executed by H.
May the heir still file a petition? No, because of the EXCLUSIONARY RULE under Rule 73 in that mere
surrender of the will commences the settlement of the estate.
What court has jurisdiction? Again, it depends on the gross value of the estate involved.
What if all the heirs resided in Caloocan City, and they filed petition for probate in RTC of Caloocan, given
that the surrender of the will was done in RTC of Baguio where the custodian resided, can the heir move to
dismiss the case in Baguio? Yes, because RTC of Caloocan has no jurisdiction since the commencement of the
settlement was already done in RTC of Baguio which is understood to be to the exclusion of other courts.
What if the petition now was filed in RTC Baguio City, and you move for its dismissal in yet another RTC
branch, how will you rule on the same? The same thing, you cannot do so because once a branch of RTC takes
cognizance of the case, it is still understood that it is to the exclusion of the other branches of such RTC, if any.
If you are a custodian of a will of the decedent, what is your obligation?
To deliver to the court the will within 20 days after the death. (Sec. 2, Rule 75)

In one of the Bar Exams using Cuenco vs. Cuenco, way back in 1992, this was treated by the examiner saying that
a motion to dismiss was filed with the Cebu Court and the Cebu Court granted it . Wrong. Why? Because the Cebu
court did not acquire jurisdiction because the petition was first filed in Q. C. and there can be no dual
jurisdiction here because the Rule says: the court acquires jurisdiction to the exclusion of all other courts.

Rules under this Rule:


This case was followed by the case of Eusebio vs. Eusebio and finally settled in the case of Fule vs. CA, a 1975
case. Take note of that doctrine because that is very basic in Settlement of Estate under Sec. 1 of the Rule, there
does not speak of jurisdiction but only of venue. In Fule it has been settled that the residence is the actual
place of habitation.
So that if a person has two residences, the Fule case settled that residence is the place of actual habitation or it
may not be the place of actual habitation, provided there is animus manendi (intent to remain) and animus
revertendi (intent to return).
Rule 75- Production of Will; Allowance of Will Necessary
Under the Rule, it says that, No will shall pass either real or personal property unless proved and allowed in the
property court. And that subject to the right of appeal, such allowance of the will shall be conclusive as to its due
Are you bound to file a petition?
No. The obligation there is only to deliver the will. But if you do file a petition, because you are the custodian of the
will, you must have an interest in the estate. You may either be the named administrator, a devisee, a legatee, or a

There is a corresponding sanctions to custodian and executor and also to persons retaining the will when
not heeding to the mandate/order of the court, which are:

A person who neglects any of the duties of a custodian without excuse satisfactory- fined not
exceeding 2,000.


A person having custody of a will who neglects without reasonable cause to deliver the same
when ordered to do so- committed to prison and there kept until delivery.

Rule 76- Allowance or Disallowance of Will

What is Probate?
It is the act of proving in a court a document purporting to be the last will and testament of a deceased in order that
it may be officially recognized, registered and its provisions carried out insofar as they are in accordance with the
law or also known as allowance of the will.
What will be the contents of the Petition?
The following must be shown on the petition as far as known to the petitioner:

The Jurisdictional Facts:


Death of the testator

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His residence at the time of death or the province where estate was left by the decedent who is


Names, ages and residences of the heirs, legatees and devisees of the testator or decedent


Probate value and character of the property of the estate


Name of the person for whom letters are prayed for


Name of the person having custody of the will if it has not been delivered to the court

*No defect in the petition shall render VOID the allowance of the will or the issuance of letters
testamentary or of administration with the will annexed.

properties of the registered owners therein and not subject to collation. The trial court denied the said motion. The
case was subsequently elevated via petition for certiorari before the Court of Appeals. However, it affirmed the
decision of the lower court ruling that the order of the trial court directing the inclusion of the properties therein
enumerated in the estate of the deceased Rafael Nicolas had already become final for failure of petitioners to
appeal from the order of collation. Hence the matter was raised before the Supreme Court.
1. Whether the order of the trial court to include properties received by the heirs for collation is final and binding
upon the heirs or third persons?
2. Whether the order of trial court is an order of collation or an order of exclusion/inclusion?

What is the effect of the probate of the will?

It is conclusive as to the execution and validity of the will (even against the State). Thus, a criminal case against the
forger may not lie after the will has been probated because the probate of the will is conclusive as to its execution
and validity.


What is the issue in probate of the will?

"The court which acquires jurisdiction over the properties of a deceased person through the filing of the
corresponding proceedings, has supervision and control over the said properties, and under the said power, it is its
inherent duty to see that the inventory submitted by the administrator appointed by it contains all the properties,
rights and credits which the law requires the administrator to set out in his inventory. In compliance with this duty
the court has also inherent power to determine what properties, rights and credits of the deceased should be
included in or excluded from the inventory. Should an heir or person interested in the properties of a deceased
person duly call the courts attention to the fact that certain properties, rights or credits have been left out in the
inventory, it is likewise the courts duty to hear the observations, with power to determine if such observations
should be attended to or not and if the properties referred to therein belong prima facie to the intestate, but no
such determination is final and ultimate in nature as to the ownership of the said properties." (Emphasis

It is with respect only to the determination of the extrinsic validity (due execution), not the intrinsic validity of
testamentary dispositions.

On Principle of Practical Consideration


The waste of time, effort, expense, plus added anxiety are the practical considerations that
induce us to a belief that we might as well meet head on the issues of the validity of the
provisions of the will in question.


Where the entire or all testamentary dispositions are VOID and where the defect is apparent
on its face.

Case: Teresita De Leon, Zenaida Nicolas and Heirs of Antonio Nicolas vs. Court of Appeals and Ramon
Nicolas GR No. 128781, August 6, 2002, J. Austria-Martinez.
FACTS: Petitioner Teresita De Leon was appointed as the administratrix of the estate of Rafael C. Nicolas, her
father. Deceased spouses Rafael and Salud Nicolas were the parents of petitioner Teresita N. de Leon, Estrellita N.
Vizconde, Antonio Nicolas (deceased husband of petitioner Zenaida Nicolas and predecessor of the petitioners
Heirs of Antonio Nicolas), Ramon Nicolas and Roberto Nicolas. Private Respondent Ramon Nicolas filed a
Motion for Collation claiming that the deceased Rafael Nicolas had given several properties to his
grandchildren and that administratrix-petitioner Teresita failed to include the same in the inventory of the
estate of the decedent. The trial court granted the motion and ordered the collation of the properties allegedly
received by the grandchildren during the lifetime of the decedent to the estate proceeding. Petitioner filed a Motion
for Reconsideration alleging that the properties subject of the Order "were already titled in their names years
ago" and those titles may not be collaterally attacked in a motion for collation. The RTC issued an Order denying
said motion, ruling that it is within the jurisdiction of the court to determine whether titled properties should be
collated, citing Section 2, Rule 90 of the Rules of Court which provides that the final order of the court concerning
questions as to advancements made shall be binding on the person raising the question and on the heir. Based on
the said order, Teresita filed a Motion for Reconsideration, and this time, the trial court ordered Ramon Nicolas to
prove to the satisfaction of the court whether the properties disposed of by the late Rafael Nicolas before the
latters death was gratuitous or for valuable consideration. The Court believes that he or she who asserts should
prove whether the disposition of the properties was gratuitously made or for valuable consideration. Subsequently,
the RTC removed petitioner as the administratrix on the ground of conflict of interest considering her claim that she
paid valuable consideration for the subject properties acquired by her from her deceased father and therefore the
same should not be included in the collation. Again, Teresita filed a Motion for Reconsideration praying that her
appointment as administratrix be maintained that the properties acquired by them be declared as the exclusive

(1) No. Contrary to the finding of the Court of Appeals that the order of the trial court had become final for failure of
petitioners to appeal therefrom in due time, we hold that said order is interlocutory in nature. Our pronouncement in
Garcia v. Garcia supports this ruling:

A probate court, whether in a testate or intestate proceeding, can only pass upon questions of title provisionally.
The rationale therefor and the proper recourse of the aggrieved party are expounded in Jimenez v. Court of
"The patent reason is the probate courts limited jurisdiction and the principle that questions of title or ownership,
which result in inclusion or exclusion from the inventory of the property, can only be settled in a separate action.
"All that the said court could do as regards said properties is determine whether they should or should not be
included in the inventory or list of properties to be administered by the administrator. If there is a dispute as to the
ownership, then the opposing parties and the administrator have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate court cannot do so."
Further, In Sanchez v. Court of Appeals, we held:
"[A] probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title
to properties claimed to be a part of the estate and which are claimed to belong to outside parties. All that the said
court could do as regards said properties is to determine whether they should or should not be included in the
inventory or list of properties to be administered by the administrator. If there is no dispute, well and good, but if
there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate court cannot do so."
Guided by the above jurisprudence, it is clear that the Court of Appeals committed an error in considering the
assailed order as final or binding upon the heirs or third persons who dispute the inclusion of certain
properties in the intestate estate of the deceased Rafael Nicolas. Under the foregoing rulings of the Court, any
aggrieved party, or a third person for that matter, may bring an ordinary action for a final determination of the
conflicting claims.
(2) It is an order of an exclusion/inclusion.

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Such Order in question is an interlocutory and not a final order is more apparent than real. This is because the
questioned Order was erroneously referred to as an order of collation both by the RTC and the appellate court. For
all intents and purposes, said Order is a mere order including the subject properties in the inventory of the
estate of the decedent.
The Court held in Valero Vda. de Rodriguez v. Court of Appeals that the order of exclusion (or inclusion) is not a
final order; that it is interlocutory in the sense that it did not settle once and for all the title to the subject lots; that
the prevailing rule is that for the purpose of determining whether a certain property should or should not be
included in the inventory, the probate court may pass upon the title thereto but such determination is not conclusive
and is subject to the final decision in a separate action regarding ownership which may be instituted by the parties.
Based thereon, we find that what the parties and the lower courts have perceived to be as an Order of Collation is
nothing more than an order of inclusion in the inventory of the estate which, as we have already discussed, is an
interlocutory order. The motion for collation was filed with the probate court at the early stage of the intestate estate
proceedings. We have examined the records of the case and we found no indication that the debts of the
decedents spouses have been paid and the net remainder of the conjugal estate have already been determined,
and the estates of the deceased spouses at the time filing of the motion for collation were ready for partition and
distribution. In other words, the issue on collation is still premature.
Who may file for the allowance of will?
Any party who has direct and material interest in the will or estate consisting of:
D- Devisee

the will is proved to have been in existence at the time of death of the testator or is shown to
have been fraudulently or accidentally destroyed in the lifetime of the testator without his
knowledge, UNLESS its provisions are clearly and distinctly proved by at least 2 credible
witnesses. If proved, the provisions thereof must be distinctly stated and certified by the
Judge under the seal of the court and the certificate must be filed and recorded.

Three witness rule



Required if someone else filed the probate of the will. If a holographic will is contested, the
same shall be allowed if at least three (3) witnesses who know the handwriting of the
testator and signature. Otherwise, an expert witness is required.

Four witness rule


In case of notarial will to be probated, whether contested or not, referring to the number of
subscribing witnesses. It is required that all the subscribing witnesses and the notary in case
wills executed under Civil Code.

What are the grounds for Disallowing Wills?

F- If the will is not executed and attested as required by law; formalities thereof
I- If the testator was insane or otherwise mentally incapable to make a will, at the time of its execution
D- If it was executed under duress, or the influence of fear or threats
U- If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other
person for his benefit

E- Executor
L- Legatee

S- If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be
his will at the time of fixing his signature thereto

T- Testator
A- Any other person interested in the estate

Rule 77- Allowance of Will Proved Outside of Philippines and Administration of Estate Thereunder
Why may be disqualified?
Here, you have to consider the last person allowed filing, Any other person INTERESTED IN THE ESTATE which
means any person who would be benefited by the estate such as an HEIR or one who has a claim against the
estate, such as CREDITOR. Hence, those not having such qualification may be disqualified to file for the allowance
of the will.
Situation: If A executed the will and in his will, he named B as devisee, C as legatee and spurious son D, so as W
as sister.
Who among the persons stated in the will may file a petition?
All except W because the latter cannot file because under the Rule on Succession, a sister is not one in which will
be inherited by the decedent unless the spurious son is not included in the facts.
What are these concepts referring to?

What is the rationale for the re-probate?

This is because the Philippine courts do not recognize foreign judgment, and such that probate of the will abroad is
one kind of a foreign judgment.
How will this be enforced in our jurisdiction?
In relation to Rule 39, Section 48, the effect of a judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order will be;

Conclusive upon the title to the thing- in case of a judgment or final order upon specific thing;


Presumptive evidence of a right as between the parties and their successors in interest by subsequent
title- in case of judgment against a person.

In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or fact.

No witness rule

This is only applicable in case there is a lost or destroyed holographic will or the testator
probated his own holographic will. General rule: A holographic will if destroyed CANNOT be
probated. Except: If there exists a photostatic or Xerox copy thereof.


One witness rule


Two witness rule


In probating holographic will or notarial will and there is no contest thereof.

In case of a loss or destruction of notarial will, for the purpose of establishing the execution and
validity thereof, NO NOTARIAL WILL SHALL BE PROVED in circumstances mentioned, when

What if the probated will abroad is not established as a fact of such probate, what laws will apply?
The doctrine on processual presumption will be applicable, in a sense that foreign law is considered as the same
as that of the domestic law
Which court has jurisdiction for re-probate of will?
It is in the RTC because the subject matter, that is, probate of will (considered as foreign judgment), is incapable of
pecuniary estimation.

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There is preference of persons allowed by Rules, as follows:

Where is the venue?


It is in the place of final, and actual abode of the decedent. In the absence of residence, the place where any of the
property is located to the exclusion of other venues. EXCLUSIONARY RULE STILL APPLIES HERE.

To the surviving spouse, or next of kin, or both, in the discretion of the court, or their nominee, if
competent and willing to serve.


In default of the foregoing, to one or more of the principal creditors, if competent and willing to serve.


In default of the preceding, to such other person as the court may select.

Who may file?

Any person interested in the estate.

Case: In the matter of the Intestate Estate of Cristina Aguinaldo-Suntay and Emilio Suntay III vs. Isabel
Cojuangco-Suntay GR No. 183053, June 6, 2010, J. Nachura.

In the petition for re-probate, what should be alleged?


That the testator was domiciled in a foreign country.


That the will has been admitted to probate in such country.


That the foreign court was, under the laws of said foreign country, a probate court with jurisdiction
over the proceedings.


The law on probate procedure in said foreign country proof of compliance therewith.


The legal requirements in said foreign country for the valid execution of the will.

There should be appointment of ancillary administrator (The administrator appointed to take charge of the
properties in the Philippines, domestic) and domiciliary administrator (The administrator domiciled in foreign
Effects of the allowance of a will under this Rule:

The will shall be treated as if originally proved and allowed in Philippine courts.


Letters testamentary or administration with a will annexed shall extend to all estates in the Philippines.


After payment of just debts and expenses of administration, the residue of the estate shall be disposed of
as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of
another state or country.

Rule 78- Letters Testamentary and Letters of Administration, When and to Whom issued
What is Letter Testamentary and Letter of Administration?
Letter Testamentary- It is a process in which there is an appointment of an executor.
Letter of Administration- It is a process in which there is no appointment of an executor
Can a letter of administration be issued even if a will provides for executor?
Yes. Section 4 hereto provides that a letter of administration may be issued even if there exist a will designating an
executor, if the latter is incompetent, refuses to accept the trust and fails to give a bond.
When letters of administration be granted?

If no executor is named in the will,


or the executor/s are incompetent, refuse to accept the trust or fails to give a bond,


or a person dies intestate.

To whom letters of administration granted?

FACTS: On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina), married to Dr. Federico Suntay
(Federico), died intestate. In 1979, their only son, Emilio Aguinaldo Suntay (Emilio I), predeceased both Cristina
and Federico. At the time of her death, Cristina was survived by her husband, Federico, and several grandchildren,
including herein petitioner Emilio A.M. Suntay III (Emilio III) and respondent Isabel Cojuangco-Suntay. During his
lifetime, Emilio I was married to Isabel Cojuangco, and they begot three children, namely: herein respondent,
Isabel; Margarita; and Emilio II, all surnamed Cojuangco-Suntay. Emilio Is marriage to Isabel Cojuangco was
subsequently annulled. Thereafter, Emilio I had two children out of wedlock, Emilio III and Nenita Suntay Taedo
(Nenita), by two different women, Concepcion Mendoza and Isabel Santos, respectively.
Despite the illegitimate status of Emilio III, he was reared ever since he was a mere baby, nine months old,
by the spouses Federico and Cristina and was an acknowledged natural child of Emilio I. Nenita is an
acknowledged natural child of Emilio I and was likewise brought up by the spouses Federico and Cristina. When
Christina died, Federico adopted their illegitimate grandchildren Emilio III and Nenita. Respondent Isabel
Cojuangco - Suntay filed a petition for the issuance of the letters of administration in her favor for the
administration of the estate of Cristina. This was opposed by Federico claiming that as her spouse, he is
better suited in administering the properties of his deceased wife.
He later filed a manifestation nominating his adopted son, Emilio the III, as administrator of the properties of
Cristina in the event that he would be better adjudge as the one with better right to the letter of administration. In
the course of the proceeding, Federico died. The trial court issued an order appointing Emilio III as the
administrator of the decedent Cristina estate. Aggrieved, respondent appealed before the Court of Appeals, which
reversed and set aside the decision of the RTC and revoked the letters of administration issued to Emilio III and
appointed respondent as the administratrix of the intestate estate. The CA argued that:
1. The appointment of Emilio III was subject to a suspensive condition, i.e., Federicos appointment as administrator
of the estate, he being the surviving spouse of Cristina, the decedent. The death of Federico before his
appointment as administrator of Cristinas estate rendered his nomination of Emilio III inoperative;
2. As between the legitimate offspring (respondent) and illegitimate offspring (Emilio III) of decedents son, Emilio I,
respondent is preferred, being the "next of kin" referred to by Section 6, Rule 78 of the Rules of Court, and entitled
to share in the distribution of Cristinas estate as an heir;
3. Jurisprudence has consistently held that Article 99216 of the Civil Code bars the illegitimate child from inheriting
ab intestato from the legitimate children and relatives of his father or mother. Thus, Emilio III, who is barred from
inheriting from his grandmother, cannot be preferred over respondent in the administration of the estate of their
grandmother, the decedent; and
4. Contrary to the RTCs finding, respondent is as much competent as Emilio III to administer and manage the
subject estate for she possesses none of the disqualifications specified in Section 1, Rule 78 of the Rules of Court.
The motion of reconsideration was subsequently denied, petitioner filed a certiorari before the Supreme Court.
ISSUE: Who among between Emilio III and Isabel, is better qualified to act as administrator of the decedent
HELD: BOTH. From the foregoing, it is patently clear that the CA erred in excluding Emilio III from the
administration of the decedents estate. As Federicos adopted son, Emilio IIIs interest in the estate of Cristina is as
much apparent to this Court as the interest therein of respondent, considering that the CA even declared that

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"under the law, [Federico], being the surviving spouse, would have the right of succession over a portion of the
exclusive property of the decedent, aside from his share in the conjugal partnership." Thus, we are puzzled why the
CA resorted to a strained legal reasoning Emilio IIIs nomination was subject to a suspensive condition and
rendered inoperative by reason of Federicos death wholly inapplicable to the case at bar.
Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of an administrator of an


SEC. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor
or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall
be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to
such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing
to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of
the person to apply for administration or to request that administration be granted to some other person, it may be
granted to one or more of the principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court
may select.
However, the order of preference is not absolute for it depends on the attendant facts and circumstances of each
case. Jurisprudence has long held that the selection of an administrator lies in the sound discretion of the trial
court. In the main, the attendant facts and circumstances of this case necessitate, at the least, a joint administration
by both respondent and Emilio III of their grandmothers, Cristinas, estate.
In the case of Uy v. Court of Appeals, we upheld the appointment by the trial court of a co-administration between
the decedents son and the decedents brother, who was likewise a creditor of the decedents estate. In the same
vein, we declared in Delgado Vda. de De la Rosa v. Heirs of Marciana Rustia Vda. de Damian that:
[i]n the appointment of an administrator, the principal consideration is the interest in the estate of the one to be
appointed. The order of preference does not rule out the appointment of co-administrators, specially in cases
where justice and equity demand that opposing parties or factions be represented in the management of the
estates, a situation which obtains here.
Similarly, the subject estate in this case calls to the succession other putative heirs, including another illegitimate
grandchild of Cristina and Federico, Nenita Taedo, but who was likewise adopted by Federico, and the two (2)
siblings of respondent Isabel, Margarita and Emilio II. In all, considering the conflicting claims of the putative heirs,
and the unliquidated conjugal partnership of Cristina and Federico which forms part of their respective estates, we
are impelled to move in only one direction, i.e., joint administration of the subject estate.
Hence, the Letters of Administration over the estate of decedent Cristina Aguinaldo-Suntay shall issue to
both petitioner Emilio A.M. Suntay III and respondent Isabel Cojuangco-Suntay upon payment by each of a
bond to be set by the Regional Trial Court, Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117-M95.
Who are incompetent to serve as executor or administrator?
They could be either of the following:

A minor (Obviously, a minor is incapacitated to manage the trust)


A non-resident of the Philippines (The reason for disqualifying such is because it would be impossible for
such person not residing therein to administer the estate of the deceased or be around to satisfy for the
duties of an executor or administrator)


A person in the opinion of the court is unfit to execute the duties of the trust by reason of:

Drunkenness (Such extent as would affect the capacity of a person by reason thereto, in
managing the trust with respect to such estate)




Want of Understanding or Integrity


By reason of conviction of an offense involving moral turpitude (Remember that this ground
pertains only to an OFFENSE, not a CRIME unlike in Adoption, in this case, it will pertain to
some offenses relating to immorality, say, urinating in public)

The executor of an executor shall not administer the estate of the first testator (This disqualification is in
order to prevent possible conflict of interest or commingling of estates of the two testators. An illustration
will be in that, if A is the first testator, who appointed B as his executor in the formers will, B died with an
estate appointing C as his executor. In this case, C cannot be allowed to administer the estate of A
because he is now managing the estate of B as the testator)

Case: Edgar San Luis vs. Felicidad San Luis GR No. 150175, February 5, 2007, J. Ynares-Santiago.
FACTS: The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo), who was the
former governor of the Province of Laguna. During his lifetime, Felicisimo contracted three marriages. His first
marriage was with Virginia Sulit on March 17, 1942 out of which were born six children, namely: Rodolfo, Mila,
Edgar, Linda, Emilita and Manuel. On August 11, 1963, Virginia predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a son, Tobias. However,
on October 15, 1971, Merry Lee, an American citizen, filed a Complaint for Divorce before the Family Court of the
First Circuit, State of Hawaii, United States of America (U.S.A.), which issued a Decree Granting Absolute Divorce
and Awarding Child Custody on December 14, 1973.
On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed Sagalongos, before
Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire Boulevard, Los Angeles, California,
U.S.A. He had no children with respondent but lived with her for 18 years from the time of their marriage up to his
death on December 18, 1992. Respondent then sought the dissolution of their conjugal partnership assets and the
settlement of Felicisimo estate. She filed a petition for letters of administration before the trial court. Furthermore,
she alleged that at the time of his death, the decedent was residing at 100 San Juanico Street, New Alabang
Village, Alabang, Metro Manila; that the decedents surviving heirs are respondent as legal spouse, his six children
by his first marriage, and son by his second marriage; that the decedent left real properties, both conjugal and
exclusive, valued at P30,304,178.00 more or less; that the decedent does not have any unpaid debts. Respondent
prayed that the conjugal partnership assets be liquidated and that letters of administration be issued to her.
Petitioners Rodolfo San Luis and her sister Linda, the children of Felicisimo by his first marriage, filed a motion to
dismiss on the grounds of improper venue and failure to state a cause of action . Rodolfo claimed that the
petition for letters of administration should have been filed in the Province of Laguna because this was
Felicisimos place of residence prior to his death. However, the trial court denied the petition. The court a quo
dismissed the petition for letters of administration. It held that, at the time of his death, Felicisimo was the duly
elected governor and a resident of the Province of Laguna. Hence, the petition should have been filed in Sta. Cruz,
Laguna and not in Makati City. On appeal, the Court of Appeals reversed the trial court which ruled that under
Section 1, Rule 73 of the Rules of Court, the term "place of residence" of the decedent, for purposes of fixing the
venue of the settlement of his estate, refers to the personal, actual or physical habitation, or actual residence or
place of abode of a person as distinguished from legal residence or domicile. It noted that although Felicisimo
discharged his functions as governor in Laguna, he actually resided in Alabang, Muntinlupa. Thus, the petition for
letters of administration was properly filed in Makati City.

Where is the proper venue to file the letters of Administration?


Whether Felicidad has the capacity to be an administrator in the estate of the deceased partner/spouse.

(1) It is in Makati City. Under Section 1, Rule 73 of the Rules of Court, the petition for letters of administration of
the estate of Felicisimo should be filed in the Regional Trial Court of the province "in which he resides at the time of

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his death." In the case of Garcia Fule v. Court of Appeals, we laid down the doctrinal rule for determining the
residence as contradistinguished from domicile of the decedent for purposes of fixing the venue of the
settlement of his estate:

industry. Any property acquired during the union is prima facie presumed to have been obtained through their joint
efforts. Hence, the portions belonging to the co-owners shall be presumed equal, unless the contrary is proven.

[T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile."
This term "resides," like the terms "residing" and "residence," is elastic and should be interpreted in the light of the
object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules
Section 1, Rule 73 of the Revised Rules of Court is of such nature residence rather than domicile is the significant
factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile
in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as
generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term
"inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal,
actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a
place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence,
not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while
domicile requires bodily presence in that place and also an intention to make it ones domicile. No particular length
of time of residence is required though; however, the residence must be more than temporary. (Emphasis supplied)

Upon, issuance of those letters (Letters testamentary and Letters of administration), what will courts do?

The rulings in Nuval and Romualdez are inapplicable to the instant case because they involve election cases.
Needless to say, there is a distinction between "residence" for purposes of election laws and "residence" for
purposes of fixing the venue of actions. In election cases, "residence" and "domicile" are treated as synonymous
terms, that is, the fixed permanent residence to which when absent, one has the intention of returning. However,
for purposes of fixing venue under the Rules of Court, the "residence" of a person is his personal, actual or
physical habitation, or actual residence or place of abode, which may not necessarily be his legal
residence or domicile provided he resides therein with continuity and consistency. Hence, it is possible
that a person may have his residence in one place and domicile in another.
From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for purposes of fixing the venue
of the settlement of his estate. Consequently, the subject petition for letters of administration was validly filed in the
Regional Trial Court which has territorial jurisdiction over Alabang, Muntinlupa. The subject petition was filed on
December 17, 1993. At that time, Muntinlupa was still a municipality and the branches of the Regional Trial
Court of the National Capital Judicial Region which had territorial jurisdiction over Muntinlupa were then
seated in Makati City as per Supreme Court Administrative Order No. 3. Thus, the subject petition was
validly filed before the Regional Trial Court of Makati City.
Yes. Even assuming that Felicisimo was not capacitated to marry respondent in 1974, nevertheless, we find that
the latter has the legal personality to file the subject petition for letters of administration, as she may be considered
the co-owner of Felicisimo as regards the properties that were acquired through their joint efforts during their
Section 6, Rule 78 of the Rules of Court states that letters of administration may be granted to the surviving spouse
of the decedent. However, Section 2, Rule 79 thereof also provides in part:
SEC. 2. Contents of petition for letters of administration. A petition for letters of administration must be filed by an
interested person and must show, as far as known to the petitioner: x x x.
An "interested person" has been defined as one who would be benefited by the estate, such as an heir, or one who
has a claim against the estate, such as a creditor. The interest must be material and direct, and not merely indirect
or contingent.
In the instant case, respondent would qualify as an interested person who has a direct interest in the estate of
Felicisimo by virtue of their cohabitation, the existence of which was not denied by petitioners. If she proves the
validity of the divorce and Felicisimos capacity to remarry, but fails to prove that her marriage with him was validly
performed under the laws of the U.S.A., then she may be considered as a co-owner under Article 144 of the Civil
Code. This provision governs the property relations between parties who live together as husband and wife without
the benefit of marriage, or their marriage is void from the beginning. It provides that the property acquired by either
or both of them through their work or industry or their wages and salaries shall be governed by the rules on coownership. In a co-ownership, it is not necessary that the property be acquired through their joint labor, efforts and

Under Rule 86 (Claims Against Estate), immediately after granting letters, the court shall issue a notice requiring all
persons having money claims against the decedent to file them in the office of the clerk of court of said court. And it
will now be the duty of every executor or administrator, after the notice to creditors is issued, to cause the same to
be published in 3 WEEKS SUCCESSIVELY in a newspaper of general circulation in the province and to be posted
for the same period in 4 public places in the province and 2 public places in the municipality where the decedent
last resided.
Can Letters testamentary be objected to?
Yes, it may be objected and whatever resolution or resolution with that respect is FINAL AND APPEALABLE.
Hence, this made true the existence of MULTIPLE APPEALS in Special Proceedings. In that case, a RECORD ON
APPEAL is required to be filed since each part is complete in itself, say the Settlement, Probate or Appointment of
Administrator. But with respect to SPECIAL ADMINISTRATOR, it would be a different remedy, because the
appointment of the same is held INTERLOCUTORY, hence, UNAPPEALABLE and the remedy therefrom is
PETITION FOR CERTIORARI alleging grave abuse of discretion.
Rule 79- Opposing Issuance of Letters Testamentary. Petition and Contest for Letters of Administration.
What is a Petition for Probate with a Will Annexed?
In this situation, there are two (2) petitions involved:

Petition filed by any interested person in a will stating the grounds why letters testamentary should not
issue to the persons named therein executors, or any of them, and at the same time,


Filing of Petition for Letters of Administration with the will annexed.

Who will file a Petition with a will annexed?

It is that person who has NO custody of the will or any person interested in a will.
What are the requirements for opposition to petition for administration?


Filing of a written opposition by any interested person, contesting the petition on the ground of:

Incompetency of the person for whom letters are prayed therein, or


On the ground of the contestants own right to the administration.

And may pray that the letters issue to himself, or to any competent person or persons named in the

Can Letters of Administration be granted to stranger?

Yes. Letters of Administration may be granted to any qualified applicant, though it appears that there are other
competent persons having better right to the administration, if such persons fail to appear when notified and claim
the issuance of letters to themselves.
Rule 80- Special Administrator
An administrator is of two kinds, what are they?

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Rule 80

Special Administrator ( also of two kinds): With the will or Without a will annexed;


Regular Administrator

What is the distinction between an executor and an administrator?

The executor is the one appointed by the decedent as embodied in the will. The administrator is the one appointed
by the court if there in no will, or if there is a will but does not designate an executor, or even if there is an executor,
the executor refuses to accept the trust or fails to put up a bond. These are the requirements: He is either not
qualified; he fails to accept the trust; or he fails to put up a bond so an administrator may be appointed
When may a Special Administrator appointed?
A special administrator may be appointed when:
1. There is delay in granting letters testamentary or of administration by any cause including appeal from the
allowance or there is disallowance of the will.
2. The executor is a claimant of the estate he represents (Rule 86 Section 8)
What are the duties of Special Administrator?

and Manuel Diaz filed with the same probate court a petition for probate of an alleged holographic will of Felicidad.
The two proceeding were consolidated. By agreement of the parties in the proceedings a quo, petitioner and
respondent Diaz were appointed as join administrator of the estate of Felicidad. Subsequently, the probate court
denied the probate of the alleged holographic will of the decedent and give due course to the intestate settlement of
the estate. Respondent Pascual appealed the said order. In view of the disallowance of the holographic will,
petitioner Valarao moved in the probate court for her appointment as special administratrix of the estate.
Respondent Diaz likewise asked the court for his appointment as special co-administrator which was opposed by
Valarao on the ground that he previously neglected his duties as co-administrator of the estate. The probate court
appointed Valarao as special admistratrix of the estate and this was contested by Diaz demanding his appointment
as a special-co administrator since justice and equity demands that his group be represented in the management
of the estate. The probate court denied the motion for reconsideration and ordered respondent Diaz and all the
heirs to respect the authority of petitioner Valarao as special administratrix, especially by furnishing her with copies
of documents pertinent to the properties comprising the estate. Respondents Pascual and Diaz along with other
heirs moved for reconsideration of the order on the ground that petitioner Valarao as special administratrix was not
authorized to dispossess the heirs of their rightful custody of properties in the absence of proof that the same
properties were being dissipated by them, and that the possessory right of petitioner as special administratrix had
already been exercised by her "constructively" when the heirs on her side took possession of the estate supposedly
in her behalf. A supplemental petition for certiorari was filed before the Court of Appeals assailing the said orders of
the probate court. The court a quo reversed and set aside the order issued by the probate court appointing
petitioner as lone special administrator. The appellate court explained that since the heirs were divided into two (2)
scrappy factions, justice and equity demanded that both factions be represented in the management of the estate
of the deceased. Hence, this petition for review on certiorari.

He shall have the following duties:


He shall take possession and charge of goods, chattels, credits, and estate of the deceased,



He shall preserve the same for the executor or administrator afterwards appointed and for that purpose
may commence and maintain suits as administrator,

1. Whether the appointment of a co-administrator is mandatory in the case at bar?


He may sell only such,



Perishable properties


As the court orders to be sold.

He shall be liable to pay any debts of the deceased is ordered by the court.

When will Special Administrator ceases to be such?

When questions causing the delay are decided and executors or administrators are appointed.
Case: Gloriosa Valarao vs. Conrado Pascual and Manuel Diaz, G.R. No. 150164, November 26, 2002, J.
FACTS: FELICIDAD C. PASCUAL died at seventy-one (71) years, femme sole, leaving a substantial inheritance for
her querulous collateral relatives who all appear disagreeable to any sensible partition of their windfall.
To divide the disputed estate are five (5) groups of legal heirs which include respondents Conrado C. Pascual, a
brother of the deceased, and Manuel C. Diaz, a nephew, son of her sister Carmen P. Diaz, and petitioner Gloriosa
V. Valarao who is the decedent's niece. The bloodlines marking the groups of heirs are: (a) the legitimate children
of her late sister Leoncia P. Villanueva, including petitioner Gloriosa V. Valarao; (b) the legitimate children of her
late sister Carmen P. Diaz including respondent Manuel C. Diaz;
(c) the legitimate children of her late brother Macario Pascual;
(d) the legitimate children of her late sister Milagros P. de Leon; and,
(e) the decedent's surviving sister Augustia C. Pascual and brothers Leonardo C. Pascual and Conrado C.
Pascual, the latter being one of respondents herein.
Then, Gloriosa Valarao, petitioner herein, initiated before the RTC of Paranaque a special proceeding for the
issuance of the letter of administration in her favor over the estate of the decedent. Respondents Conrado Pascual

2. Whether the probate court erred in demanding from the respondents to turnover pertinent documents to Valarao
as the special administrator for the management of the estate?
1. No. To begin with, the probate court had ample jurisdiction to appoint petitioner Valarao as special administratrix
and to assist her in the discharge of her functions, even after respondents had filed a notice of appeal from the
Decision disallowing probate of the holographic will of Felicidad C. Pascual. This is because the appeal is
one where multiple appeals are allowed and a record on appeal is required. In this mode of appeal, the probate
court loses jurisdiction only over the subject matter of the appeal but retains jurisdiction over the special proceeding
from which the appeal was taken for purposes of further remedies which the parties may avail of, including the
appointment of a special administrator.
Moreover, there is neither whimsical nor capricious in the action of the probate court not to appoint respondent Diaz
as special co-administrator since the Orders of 7 June 2000 and 11 September 2000 clearly stipulate the grounds
for the rejection. The records also manifest that the probate court weighed the evidence of the applicants for special
administrator before concluding not to designate respondent Diaz because the latter was found to have been
remiss in his previous duty as co-administrator of the estate in the early part of his administration. Verily, the
process of decision-making observed by the probate court evinces reason, equity, justice and legal principle
unmistakably opposite the core of abusive discretion correctible by the special civil action of certiorari under which
the appellate court was bound to act. Finally, the extraordinary writ does not operate to reverse factual findings
where evidence was assessed in the ordinary course of the proceedings since perceived errors in the appreciation
of evidence do not embroil jurisdictional issues.
Respondents cannot take comfort in the cases of Matias v. Gonzales, Corona v. Court of Appeals and Vda. de
Dayrit v. Ramolete, cited in the assailed Decision. Contrary to their claim, these cases do not establish an absolute
right demandable from the probate court to appoint special co-administrators who would represent the respective
interests of squabbling heirs. Rather, the cases constitute precedents for the authority of the probate court to
designate not just one but also two or more special co-administrators for a single estate. Now whether the
probate court exercises such prerogative when the heirs are fighting among themselves is a matter left
entirely to its sound discretion.

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2. No. We also rule that the probate court in issuing the Order of 11 September 2000 did not err in commanding
respondents to turn over all documents pertinent to the estate under special administration and in enforcing such
order by means of contempt of court. The powers of a special administrator are plainly delineated in Sec. 2,
Rule 80 of the Rules of Court, vesting upon him the authority to "take possession and charge of the goods,
chattels, rights, credits and estate of the deceased and preserve the same for the executor or administrator
afterwards appointed x x x x"
The law explicitly authorizes him to take possession of the properties in whatever state they are, provided he does
so to preserve them for the regular administrator appointed afterwards. Clearly, the special administrator enjoys
not merely subsidiary possession to be carried out when the heirs dissipate the properties but the primary
and independent discretion of keeping them so they may be preserved for regular administration.
Moreover, respondents cannot deprive the special administratrix of access to and custody of essential documents
by arguing that their possession thereof allegedly in behalf of petitioner is already the equivalent of "constructive
possession" which constitutes full compliance with the possessory powers of petitioner as special administratrix
under Sec. 2 of Rule 80. Contrary to what respondents seem to understand by "constructive possession," the right
of possession whether characterized as actual or constructive invariably empowers the special administrator with
the discretion at any time to exercise dominion or control over the properties and documents comprising the estate.
Hence, even if we are to give credence to the theory that petitioner also has "constructive possession" of the
documents alongside respondents' actual possession thereof, respondents would nonetheless be under the
obligation to turn them over whenever the special administratrix requires their actual delivery.
Needless to state, the special administratrix appointed by the probate court must be constantly aware that
she is not a representative nor the agent of the parties suggesting the appointment but the administrator in
charge of the estate and in fact an officer of the court. As an officer of the court, she is subject to the
supervision and control of the probate court and is expected to work for the best interests of the entire estate,
especially its smooth administration and earliest settlement. Whatever differences that may exist between the heirs
shall be ironed out fairly and objectively for the attainment of that end. She ought to be sensitive to her position as
special administratrix and neutral possessor which under the Rules of Court is both fiduciary and temporary in
character upon which accountability attaches in favor of the estate as well as the other heirs, especially
respondents Pascual and Diaz in light of her alleged rivalry with them.
Case: Margarito Jamero vs. Hon. Melicor, Atty. Bautista, in his capacity as the appointed Special
Administrator, and Ernesto Jamero GR No. 140929, May 26, 2005, J. Austria-Martinez

HELD: No. It may be non-appealable but it is subject to certiorari. Suffice it to be stated that indeed, the
appointment of a special administrator is interlocutory, discretionary on the part of the RTC and non-appealable.
However, it may be subject of certiorari if it can be shown that the RTC committed grave abuse of discretion or lack
of or in excess of jurisdiction. As the Court held in Pefianco vs. Moral, even as the trial courts order may merely
be interlocutory and non-appealable, certiorari is the proper remedy to annul the same when it is rendered with
grave abuse of discretion.
Rule 81- Bonds of Executors and Administrators
The bonds under Section 4 thereto for Special Administrator, shall be in a sum as the court directs conditioned that
he will make and return a true inventory of the properties in possession while in case of regular administrator, the
bond will be conditioned to the entire estate for its preservation. The regular executor may serve without a bond as
directed by the testator in the latters will or with only his individual bond conditioned only to payment of debts of
the testator, but the court may require such executor the filing of a further bond in case a change in his
circumstances or for other sufficient cause. Such latter bond is called STATUTORY BOND, as prescribed for by
statutes and will continue so long as the court has jurisdiction over the case.
What are the duties of executors and administrators?

To make and return to the court, within 3 months, a true and complete inventory of all goods, chattels,
rights, credits, and estate of the deceased which shall come to his possession or knowledge or to
the possession of any other person for him.


To administer according to these Rules the estate, and from proceeds, to pay and discharge all debts,
legacies and charges on the same or such dividends declared.


To render a true and just account of his administration to the court within 1 year and at any other time
when required by the court.


To perform all orders of the court.


Duty to sell, encumber or mortgage


Duty for distribution of the estate remaining.

Rule 82- Revocation of Administration, Death, Resignation, and Removal of Executors and Administrators
When will administration be revoked?

FACTS: Petitioner filed Special Proceedings No. 1618 for the Administration and Settlement of the Estate of his
deceased mother Consuelo Jamero with the Regional Trial Court (RTC), Branch 4, Tagbilaran City. Private
respondent Ernesto R. Jamero, a brother of petitioner, opposed the latters petition for appointment as regular
administrator of the estate.
Upon motion of private respondent Ernesto and over the objections of petitioner, the respondent court, in its Order
dated December 4, 1998, appointed Atty. Alberto Bautista as special administrator pending the appointment of a
regular administrator. Petitioner filed its MR but was denied.
On April 21, 1999, petitioner filed a petition for certiorari with the CA. However, CA dismissed the petition due to
technicality since the petition indicates no statement as to the date when the petitioner filed a Motion for
Reconsideration of the public respondents decision, in violation of Section 3, paragraph 2, Rule 46 of the 1997
Rules of Civil Procedure as amended by Circular No. 39-98 dated August 18, 1998 of the Supreme Court. It further
rules that the appointment of a special administrator is discretionary on the part of the appointing court;
that being an interlocutory order the same is not appealable nor subject to certiorari.
ISSUE: Whether the appointment of a special administrator is an interlocutory order which not subject of certiorari?

Administration is revoked if a will is discovered.

When may a court remove an executor or administrator or accepts his resignation?

If an executor or administrator neglects to render his account within 1 year and when required by court,


If he neglects to settle estate according to the Rules,


If he neglects to perform an order or judgment of the court or a duty expressly provided by Rules,


When he absconds, or


When becomes insane, or otherwise incapable or unsuitable to discharge the trust.

*When an executor or administrator dies, resigns or is removed, the remaining executor or administrator
may administer the trust alone UNLESS the court grants letters to someone to act with him. If there is no
remaining executor or administrator, administration may be granted to any suitable person.
The acts before revocation, resignation or removal are considered valid.

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Rule 83- Inventory and Appraisal; Provision for Support of Family

What are the other duties of executors or administrators?

When 3 months after his appointment, he shall return to the court a true inventory and appraisal of all
real and personal estate of the deceased which has come to his possession or knowledge. In such
appraisement, the court may order one or more inheritance tax appraisers to give his or their assistance.


To make an inventory of the assets of the administered estate, to the exclusion of wearing apparels of
the surviving husband or wife and minor children, the marriage bed and beddings and such
provisions and other articles for the subsistence of the family of the deceased.


To give allowance to widow and minor children, NOT TO GRANDCHILDREN.

What will be done if such allowance has to be given but there isnt enough cash by the estate?
This time, a sale can be done, say to pay taxes.
Case: The Estate of Hilario Ruiz and Edmond Ruiz vs. CA, Heirs of Hilario Ruiz (Ruizs) GR No. 118671,
January 29, 1996, J. Puno
FACTS: Hilario Ruiz executed a holographic will naming as his heirs his only son, Petitioner Edmond Ruiz, his
adopted daughter, private respondent Maria Pilar Ruiz Montes, and his three granddaughters, private respondents
Maria Cathryn, Candice Albertine and Maria Angeline, all children of Edmond Ruiz. The testator bequeathed to his
heirs substantial cash, personal and real properties and named Edmond Ruiz executor of his estate. When Hilario
died, the cash component of his estate were distributed among his heirs named in the will but for some unknown
reason the will was never been probated. Thus, four years later after the decedents death, Respondent Maria Pilar
Montes filed before the trail court a petition to probate the will. This was opposed by Edmond on the ground that the
will was executed under undue influence. Nevertheless, he withdrew his opposition and the will was subsequently
probated. One of the properties in the will a house and lot which was bequeath to Catheryn, Candicem
and Maria was leased out by the petitioner to third persons. Hence, the probate court ordered Edmond to
deposit the rent of the lease to the branch clerk of court. During the pendency of the proceeding, petitioner moved
to release the rent payments deposited before the clerk or court. Respondent on the other hand, oppose the said
motion and concurrently filed "Motion for Release of Funds to Certain Heirs" and "Motion for Issuance of
Certificate of Allowance of Probate Will." Montes prayed for the release of the said rent payments to Maria
Cathryn, Candice Albertine and Maria Angeline and for the distribution of the testator's properties in accordance to
the holographic will. The probate court denied the motion for release petitioner's motion for release of funds but
granted respondent Montes' motion in view of petitioner's lack of opposition. It thus ordered the release of the
rent payments to the decedent's three granddaughters. It further ordered the delivery of the titles to and
possession of the properties bequeathed to the three granddaughters and respondent Montes upon the filing of a
bond of P50,000.00. Petitioner assails the order of the probate court to the Court of Appeals. The CA however,
dismissed the petition and sustained the probate court.
1. Whether the probate court err in the grant of allowance for support to the grandchildren of the decedent?
2. Whether it has authority to release the titles to certain heirs?
3. Whether it erred to grant possession of all properties of the estate to the executor of the will?
1. Yes. Sec. 3. Allowance to widow and family. The widow and minor or incapacitated children of a deceased
person, during the settlement of the estate, shall receive therefrom under the direction of the court, such allowance
as are provided by law.

Petitioner alleges that this provision only gives the widow and the minor or incapacitated children of the deceased
the right to receive allowances for support during the settlement of estate proceedings. He contends that the
testator's three granddaughters do not qualify for an allowance because they are not incapacitated and are no
longer minors but of legal age, married and gainfully employed. In addition, the provision expressly states "children"
of the deceased which excludes the latter's grandchildren.
It is settled that allowances for support under Section 3 of Rule 83 should not be limited to the "minor or
incapacitated" children of the deceased. Article 188 of the Civil Code of the Philippines, the substantive law in force
at the time of the testator's death, provides that during the liquidation of the conjugal partnership, the deceased's
legitimate spouse and children, regardless of their age, civil status or gainful employment, are entitled to provisional
support from the funds of the estate. The law is rooted on the fact that the right and duty to support, especially the
right to education, subsist even beyond the age of majority.
Be that as it may, grandchildren are not entitled to provisional support from the funds of the decedent's estate. The
law clearly limits the allowance to "widow and children" and does not extend it to the deceased's grandchildren,
regardless of their minority or incapacity. It was error, therefore, for the appellate court to sustain the probate court's
order granting an allowance to the grandchildren of the testator pending settlement of his estate.
2. No. Respondent courts also erred when they ordered the release of the titles of the bequeathed properties to
private respondents six months after the date of first publication of notice to creditors. An order releasing titles to
properties of the estate amounts to an advance distribution of the estate which is allowed only under the following
conditions set forth in Rule 90 of the Rules of Court.
In settlement of estate proceedings, the distribution of the estate properties can only be made: (1) after all the
debts, funeral charges, expenses of administration, allowance to the widow, and estate tax have been paid; or (2)
before payment of said obligations only if the distributees or any of them gives a bond in a sum fixed by the court
conditioned upon the payment of said obligations within such time as the court directs, or when provision is made
to meet those obligations.
In the case at bar, the probate court ordered the release of the titles to the Valle Verde property and the Blue Ridge
apartments to the private respondents after the lapse of six months from the date of first publication of the notice to
creditors. The questioned order speaks of "notice" to creditors, not payment of debts and obligations. Hilario Ruiz
allegedly left no debts when he died but the taxes on his estate had not hitherto been paid, much less ascertained.
The estate tax is one of those obligations that must be paid before distribution of the estate. If not yet paid, the rule
requires that the distributees post a bond or make such provisions as to meet the said tax obligation in proportion
to their respective shares in the inheritance. Notably, at the time the order was issued the properties of the estate
had not yet been inventoried and appraised.
3. Yes. The petitioner cannot correctly claim that the assailed order deprived him of his right to take possession of
all the real and personal properties of the estate. The right of an executor or administrator to the possession and
management of the real and personal properties of the deceased is not absolute and can only be exercised "so
long as it is necessary for the payment of the debts and expenses of administration,"
When petitioner moved for further release of the funds deposited with the clerk of court, he had been previously
granted by the probate court certain amounts for repair and maintenance expenses on the properties of the estate,
and payment of the real estate taxes thereon. But petitioner moved again for the release of additional funds for the
same reasons he previously cited. It was correct for the probate court to require him to submit an accounting of the
necessary expenses for administration before releasing any further money in his favor.
It was relevantly noted by the probate court that petitioner had deposited with it only a portion of the one-year rental
income from the Valle Verde property. Petitioner did not deposit its succeeding rents after renewal of the lease.
Neither did he render an accounting of such funds.
Petitioner must be reminded that his right of ownership over the properties of his father is merely inchoate as long
as the estate has not been fully settled and partitioned. As executor, he is a mere trustee of his father's estate. The
funds of the estate in his hands are trust funds and he is held to the duties and responsibilities of a trustee of the
highest order. He cannot unilaterally assign to himself and possess all his parents' properties and the fruits thereof

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without first submitting an inventory and appraisal of all real and personal properties of the deceased, rendering a
true account of his administration, the expenses of administration, the amount of the obligations and estate tax, all
of which are subject to a determination by the court as to their veracity, propriety and justness.

(1) Yes. It has been held that in appeals arising from an incident in a special proceeding, a record on appeal is
necessary, otherwise, the appeal faces a dismissal. It has likewise been held, however, that in the interest of
justice, an appeal, brought without a record on appeal, may be reinstated under exceptional circumstances. Thus:
xxx xxx xxx

Rule 84- General Powers and Duties of Executors and Administrators

It is noted, however, that the question presented in this case is one of first impression; that the
petitioner acted in honest, if mistaken, interpretation of the applicable law; that the probate
court itself believed that the record on appeal was unnecessary; and that the private
respondent herself apparently thought so, too, for she did not move to dismiss the appeal and
instead impliedly recognized its validity by filing the appellee's brief.

What are the powers of executors or administrators of the estate?


To have access to and examine and take copies of books and papers relating to partnership in case of a
deceased partner.


To examine and make invoices of the property belonging to partnership in case of deceased partner.


To maintain in tenantable repairs, houses and other structures and fences and to deliver the same in
such repair to the heirs or devisees when directed so to do by the court.


To make improvements on the properties under administration with necessary court approval except for
necessary repairs.


To possess and manage the estate when necessary for:


Payment of debts


Payment of expenses of administration.

What are the restrictions on the Power of an Administrator or Executor?


Cannot acquire by purchase the property under administration.


Cannot borrow money without authority of the court.


Cannot speculate with fund under administration.


Cannot lease the property for more than 1 year.


Cannot continue the business of the deceased unless authorized by court.


Cannot profit by the increase or decrease in the value of the property under administration. (Rule 85,
Section 2)

Rule 85- Accountability and Compensation of Executors and Administrators

Case: Lacson vs. Hon. Reyes (RTC of Cavite), and Atty. Ephraim Serquina, February 26, 1990, J. Sarmiento.
Facts: Atty. Ephraim Serquina petitioned the respondent court for the probate of the last will and testament of
Carmelita Farlin, the same having been allowed without opposition. Serquina filed a motion for attorneys fees
against petitioners, herein heirs of Farlin alleging that the heirs agreed to pay for his legal services rendered the
sum worth 68,000. It was granted; hence, Serquina moved for its execution. Petitioners filed a notice of appeal in
appealing to such decision. But trial court dismissed the same arguing that a record on appeal is required and not a
notice of appeal. Petitioner, on the other hand that it should be admitted as an appeal although it falls short of the
requirements by the Rules and that the trial court gravely abused discretion in granting such motion for attorneys
fees being contrary to Rule 85, Section 7 of the Rules of Court. However, Atty Serquina opposed such allegation
and opined that in collecting attorneys fees, he was not acting as executor of Farlins will because there
was no letters testamentary that has been issued.

Whether a notice of appeal will do in this case.


Whether Atty. Serquina can be granted his motion for attorneys fees.


In view of these circumstances, and in the interest of justice, the Court feels that the petitioner
should be given an opportunity to comply with the above-discussed rules by submitting the
required record on appeal as a condition for the revival of the appeal. The issue raised in his
appeal may then be fully discussed and, in the light of the briefs already filed by the parties,
resolved on the merits by the respondent court.
In the instant case, the Court notes the apparent impression by the parties at the outset, that a record on appeal
was unnecessary, as evidenced by: (1) the very holding of the respondent court that "[i]t is now easy to appeal as
there is no more need for a record on appeal . . . [b]y merely filing a notice of appeal, the appellant can already
institute his appeal . . . ;" (2) in its order to amend notice of appeal, it did not require the appellants to submit a
record on appeal; and (3) Atty. Serquina interposed no objection to the appeal on that ground.
(2) No. It is pointed out that an attorney who is concurrently an executor of a will is barred from recovering
attorney's fees from the estate. The rule is therefore clear that an administrator or executor may be allowed fees for
the necessary expenses he has incurred as such, but he may not recover attorney's fees from the estate. His
compensation is fixed by the rule but such a compensation is in the nature of executor's or administrator's
commissions, and never as attorney's fees. In one case, 18 we held that "a greater sum [other than that established
by the rule] may be allowed 'in any special case, where the estate is large, and the settlement has been attended
with great difficulty, and has required a high degree of capacity on the part of the executor or administrator.'" It is
also left to the sound discretion of the court. With respect to attorney's fees, the rule, as we have seen, disallows
them. Accordingly, to the extent that the trial court set aside the sum of P65,000.00 as and for Mr. Serquina's
attorney's fees, to operate as a "lien on the subject properties," the trial judge must be said to have gravely abused
its discretion (apart from the fact that it never acquired jurisdiction, in the first place, to act on said Mr. Serquina's
"motion for attorney's fees").
The next question is quite obvious: Who shoulders attorney's fees? We have held that a lawyer of an administrator
or executor may not charge the estate for his fees, but rather, his client. Mutatis mutandis, where the administrator
is himself the counsel for the heirs, it is the latter who must pay therefor.
The records also reveal that Atty. Serquina has already been paid the sum of P6,000.00. It is our considered
opinion that he should be entitled to P15,000.00 for his efforts on a quantum meruit basis. Hence, we hold the heirs
liable for P9,000.00 more.
General rule: The executor or administrator is accountable for the whole estate of the deceased.
Exception: He is not accountable for properties which never came to his possession.
Exception to the exception: When through untruthfulness to the trust or his own fault or for lack of necessary
action, the executor or administrator failed to recover part of the estate which came to his possession.
What will be the compensation for executor or administrator if there is no provision in the Will?

P4.00 a day for the time actually and necessarily employed; OR



2%- first 5,000


1%- >5,000 but not >30,000

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1%- >30,000 but not >100,000


%- >100,000

judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for
prosecuting claims against the estate of a deceased person.

Greater sum may be allowed if:


The estate is large;


The settlement has been attended with great difficulty;


The settlement has required a high degree of capacity of the executor or administrator.

Illustrate: A files B for a sum of money based on a contract between them as parties. B, however died. The case
was not dismissed but instead proceeded up until entry of judgment. In entry of judgment, no more appeal is
required, much more, Motion for Reconsideration or Motion for New Trial. With that period of time, judgment
already becomes executory. However, instead of proceeding to Rule 39 which is execution of an executory
judgment, in this case, a claim against the estate under Rule 86 applies, falling under JUDGMENT FOR

When will the executor or administrator render account?

General rule: Within 1 year from the time of receiving letters testamentary or of administration.
Exception: An extension of time is allowed by the court for presenting claims against or paying debts or for
disposing of the estate, he shall render the same as the court may require until the estate is wholly settled.

How will you distinguish money claims under Section 5 of Rule 86 from judgment for money? For money
claims under Rule 86 Section 5, it could be filed even if not due or contingent, much more those already due.
However, for judgment for money, it presupposes that the same has already been adjudicated.

Will an examination with respect to account on oath be mandatorily done?

What are contingent claims?

No. Because it can be dispensed with when:

These are conditional claims that are subject to the happening of a future uncertain event. * Claims not yet due or
contingent may be approved at their present value.


No objection is made to the allowance of the account.


Its correctness is satisfactorily established by competent proof.

*The heirs, legatees, devisees and creditors have the same privilege of being examined.

What is a deficiency judgment in this respect?

It is a contingent judgment and therefore, must be filed with the probate court where the settlement of the deceased
is pending, within the period fixed for the filing of claims.

Rule 86- Claims against Estate

What may be claimed against the estate?

Contractual money claims;


Funeral expenses;


Expenses for the last illness; and


Judgments for money.

Situation: A was hospitalizing at St. Lukes Hospital and finally died leaving behind lots of hospital expenses.
How will St. Lukes collect that? It has to file a claim against the estate of A.
Is this claim a separate and distinct petition from settlement of the estate of A? No, it is ancillary to testate or
intestate proceeding. Hence, if there is settlement, you can file it in that court having jurisdiction. However, if there
was none or there was no testate or intestate proceeding instituted yet, then you can file for the settlement of
estate of A as a CREDITOR, well under Any person interested in the estate.

Example: You have a millionaire uncle, and before he died he made a promise to give you something when you
complied with his condition. However, before the happening of the condition, he died. The condition was for you to
pass the bar.
What happens to contingent claim then?
You can pursue the same by mere affidavit, showing the oral contract you had with your uncle, although the same
is unenforceable, being not in writing.
Is this a valid claim against the estate?
Yes, because the money claim against the estate could be due, undue or even contingent.
Suppose they are not due yet, can they be filed against the estate?
Suppose they are not yet due?
Yes, since whether due, not yet due, or contingent, you can file against the estate.

Judgment for money

This is illustrated in a scenario wherein H, in his lifetime, had incurred obligation against, or he is obliged to do
something, but died eventually. The person entitled to any against H cannot sue H personally, as the latter already
died. But what can he do is to file a claim against the estate of H.

Statute of Non-claims
What is Statute of Non-Claims?

*Pertinent provision- Section 20, Rule 3 of the Rules of Court

It is the period fixed by the Rule for the filing of the claims against the estate.

When the action is for recovery of money arising from contract, express or implied, and the defendant dies before
entry of final judgment in the court in which the action was pending at the time of such death, it shall not
dismissed but shall instead be allowed to continue UNTIL ENTRY OF FINAL JUDGMENT. A favorable

When do you file it?

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You can file it not more than 12 months nor less than 6 months after the date of first publication. Otherwise it is
deemed waived which is also known as the STATUTE OF NON- CLAIMS.

How was this treated by the court?


Is there an exception to this strict period rule?

Yes, with respect to BELATED CLAIMS. These are claims not filed within the original period fixed by the court.
However, on application of a creditor who has failed to file his claim within the time previously limited at ANY TIME
BEFORE AN ORDER OF DISTRIBUTION IS ENTERED, the court may, for cause shown and on such terms as are
equitable, allow such claim to be filed within a time NOT exceeding 1 month from the order allowing belated
claims. This is also in the form of COUNTERCLAIM. The obligation by reason of mortgage due from estate is
distinguished between Rule 86, Section 7, in which the estate is a mortgagor while in Rule 87 Section 5, the estate
is a mortgagee.
What is the relationship between a statute of non-claims and limitations?
A statute of non claims supersedes a statute of limitations. The statute of limitation is a period provided for in the
Civil Code where actions prescribe. An ordinary prescriptive period in a civil case is 10 years from accrual. A
statute of limitation is not applicable if in conflict with statute of non-claim. This is precedence of statute of nonclaims than statute of limitations.
Illustration: Mr. A took the bus, Philippine Rabbit, owned by Mr. B to Baguio. He never reached his destination
because the bus fell over a ravine on January 5, 1990. That is the date of the accrual of the cause of action (Jan. 5,
Can Mr. A file a case against Mr. B on March 2001?
No, because the action is barred by the statute of limitations.
Suppose Mr. B died in 1995. What should A do?
File a claim against the estate within a period of not less than 6 mos. and not more than 12mos from the date of
first publication. So, the presumption here is that there is a settlement of the estate of B. Otherwise, the statute of
non-claims will not apply.
Suppose notice was given on March 1, 1995. So you have 6 months and it was published March 20, you
have not less than 6 months from March 20, nor more than up to the 19th of March 1996. Can you file it in
No, because it is beyond the statute of non-claims. Even if it is within the statute of limitations, you can no longer
file it because it is beyond the statute of non-claims. That is the meaning of the statute of non-claims supersedes
the statute of limitations.
On the other hand, if B died in 1999 of December, you have only have up to January of 2000 because the action
has already prescribed, the ordinary action. The statute of non-claims prevails over the statute of limitations.
However, the statute of non- claims will not apply if there is no settlement proceeding.
What is the time-frame in Section 2 of Rule 86?
The court is bound to give notice to those who have claims against the estate. The notice here is a sort of
publication which is NOT the same as publication in probate since in the latter the notice refers to NOTICE OF
How will you pursue your money claim?
It is provided for under Section 7 thereto, which a claim must be filed with the clerk of court with affidavit supported
by vouchers. The clerk of court will now relay to executor or administrator who has duty to file his answer within 15
days whether he agrees or not.

If there is no opposition or with admission, pay 50,000 to set aside the claim.
While pay 150,000 to the court and send the 150,000 the notice of hearing with
respect to 150,000.The court will then decide if valid or not. If there is contest by
any other heir, payment of 50,000 should be made but WILL IN NO WAY CREATE

What happens next?

The distribution will commence at the proper time, in due course of administration. This is so because distribution
only arises when everything else is paid.
Case: Union Bank vs. Edmund Santibaez and Florence Santibaez Ariola GR No. 149926, February 23,
2005, J. Callejo Sr.
FACTS: On May 31, 1980, the First Countryside Credit Corporation (FCCC) and Efraim M. Santibaez entered into
a loan agreement in the amount of P128,000.00. The amount was intended for the payment of the purchase price
of one (1) unit Ford 6600 Agricultural All-Purpose Diesel Tractor. In view thereof, Efraim and his son, Edmund,
executed a promissory note in favor of the FCCC, the principal sum payable in five equal annual amortizations of
P43,745.96 due on May 31, 1981 and every May 31st thereafter up to May 31, 1985.
On December 13, 1980, the FCCC and Efraim entered into another loan agreement, this time in the amount of
P123,156.00. It was intended to pay the balance of the purchase price of another unit of Ford 6600 Agricultural AllPurpose Diesel Tractor, with accessories, and one (1) unit Howard Rotamotor Model AR 60K. Again, Efraim and his
son, Edmund, executed a promissory note for the said amount in favor of the FCCC. Aside from such promissory
note, they also signed a Continuing Guaranty Agreement for the loan dated December 13, 1980.
Sometime in February 1981, Efraim died, leaving a holographic will. Subsequently in March 1981, testate
proceedings commenced before the RTC of Iloilo City, Branch 7, docketed as Special Proceedings No. 2706. On
April 9, 1981, Edmund, as one of the heirs, was appointed as the special administrator of the estate of the
decedent. During the pendency of the testate proceedings, the surviving heirs, Edmund and his sister
Florence Santibaez Ariola, executed a Joint Agreement dated July 22, 1981, wherein they agreed to divide
between themselves and take possession of the three (3) tractors; that is, two (2) tractors for Edmund and
one (1) tractor for Florence. Each of them was to assume the indebtedness of their late father to FCCC,
corresponding to the tractor respectively taken by them.
On August 20, 1981, a Deed of Assignment with Assumption of Liabilities was executed by and between FCCC
and Union Savings and Mortgage Bank, wherein the FCCC as the assignor, among others, assigned all its assets
and liabilities to Union Savings and Mortgage Bank. Demand letters for the settlement of his account were sent by
petitioner Union Bank of the Philippines (UBP) to Edmund, but the latter failed to heed the same and refused to
pay. Thus, on February 5, 1988, the petitioner filed a Complaint for sum of money against the heirs of Efraim
Santibaez, Edmund and Florence, before the RTC of Makati City, Branch 150, docketed as Civil Case No. 18909.
Summons was issued against both, but the one intended for Edmund was not served since he was in the United
States and there was no information on his address or the date of his return to the Philippines. Accordingly, the
complaint was narrowed down to respondent Florence S. Ariola.
Respondent Florence S. Ariola filed her Answer and alleged that the loan documents did not bind her since
she was not a party thereto. Considering that the joint agreement signed by her and her brother Edmund was not
approved by the probate court, it was null and void; hence, she was not liable to the petitioner under the joint
agreement. The RTC dismiss the case on lack of merit. It also ruled that the said agreement executed was
void, considering that it had not been approved by the probate court, and that there can be no valid
partition until after the will has been probated. On appeal, it affirmed the decision of the trial court. Hence, this
petition. The petitioner claims that the obligations of the deceased were transmitted to the heirs as provided in
Article 774 of the Civil Code; there was thus no need for the probate court to approve the joint agreement where
the heirs partitioned the tractors owned by the deceased and assumed the obligations related thereto. Since
respondent Florence S. Ariola signed the joint agreement without any condition, she is now estopped from

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asserting any position contrary thereto. The petitioner also points out that the holographic will of the deceased did
not include nor mention any of the tractors subject of the complaint, and, as such was beyond the ambit of the said
will. The active participation and resistance of respondent Florence S. Ariola in the ordinary civil action against the
petitioners claim amounts to a waiver of the right to have the claim presented in the probate proceedings, and to
allow any one of the heirs who executed the joint agreement to escape liability to pay the value of the tractors
under consideration would be equivalent to allowing the said heirs to enrich themselves to the damage and
prejudice of the petitioner.

court had not acquired jurisdiction over the person of Edmund, we find it unnecessary to delve into the matter
In the case of FCC vs Santibanez, the following are the issues raised:

1. Whether the agreement entered by Edmund and Florence is valid?
2. Whether the heirs assumption of indebtedness is binding?
1. No. In our jurisdiction, the rule is that there can be no valid partition among the heirs until after the will has been


Whether or not estoppel applies.


Whether or not the extra judicial partition between and among the heirs was valid.


Whether or not it is necessary for a partition to be approved by the probate court.


Whether or not the respondent could be held jointly liable with Santibanez.

Testate Proceeding.
Provisions on a holographic will. It wasnt clearly stated in this case.
The parties entered into an agreement.

In testate succession, there can be no valid partition among the heirs until after the will has been probated. The
law enjoins the probate of a will and the public requires it, because unless a will is probated and notice thereof
given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory. The
authentication of a will decides no other question than such as touch upon the capacity of the testator and the
compliance with those requirements or solemnities which the law prescribes for the validity of a will

Can prospective heirs whether under the testate or intestate enter into a partition over the properties
belonging to the estate?

This, of course, presupposes that the properties to be partitioned are the same properties embraced in the will. In
the present case, the deceased, Efraim Santibaez, left a holographic will which contained, inter alia, the provision
which reads as follows:

Was it really a partition?

(e) All other properties, real or personal, which I own and may be discovered later after my demise, shall be
distributed in the proportion indicated in the immediately preceding paragraph in favor of Edmund and Florence, my
We agree with the appellate court that the above-quoted is an all-encompassing provision embracing all the
properties left by the decedent which might have escaped his mind at that time he was making his will, and other
properties he may acquire thereafter. Included therein are the three (3) subject tractors. This being so, any partition
involving the said tractors among the heirs is not valid. The joint agreement executed by Edmund and Florence,
partitioning the tractors among themselves, is invalid, specially so since at the time of its execution, there
was already a pending proceeding for the probate of their late fathers holographic will covering the said
2. No. The filing of a money claim against the decedents estate in the probate court is mandatory. As we held in
the vintage case of Py Eng Chong v. Herrera:
This requirement is for the purpose of protecting the estate of the deceased by informing the executor or
administrator of the claims against it, thus enabling him to examine each claim and to determine whether it is a
proper one which should be allowed. The plain and obvious design of the rule is the speedy settlement of the
affairs of the deceased and the early delivery of the property to the distributees, legatees, or heirs. `The law strictly
requires the prompt presentation and disposition of the claims against the decedent's estate in order to settle the
affairs of the estate as soon as possible, pay off its debts and distribute the residue.
Perusing the records of the case, nothing therein could hold private respondent Florence S. Ariola
accountable for any liability incurred by her late father. The documentary evidence presented, particularly the
promissory notes and the continuing guaranty agreement, were executed and signed only by the late Efraim
Santibaez and his son Edmund. As the petitioner failed to file its money claim with the probate court, at
most, it may only go after Edmund as co-maker of the decedent under the said promissory notes and
continuing guaranty, of course, subject to any defenses Edmund may have as against the petitioner. As the

There can be no partition until and unless the will is allowed or probated.

According to the SC, they may act to put an end in any indivision is considered and deemed to be a partition.
There can be no partition in a testate proceeding before the will is allowed.
What is the rationale behind that?
Because the SC said if it is allowed then you are divesting the court of its jurisdiction over the property partition.
Since the same is partition, it amounts to distribution. And distribution is the final stage in a settlement proceeding
and there will be no distribution of the estate until and unless all debts has been paid. The court looks into it as an
act of divesting of its jurisdiction.
Can principle of estoppel be applied?
The SC said that the principle of estoppel will not apply because the basis thereof which is the extra judicial
partition is in fact void, and a void act of declaration or omission of a party cannot be used as evidence against the
other party. If the act is null and void, estoppel will not arise therefrom.
Are the heirs liable?
The SC said that the heir did not even established the fact that the party was the proper party in interest because
Union Bank did not show any evidence to prove that the former was really the affixing heir.
Settlement of Estate
Sec 7. Mortgage debt due from estate
What are the remedies available to a creditor/mortgagee to collect a mortgaged debt from the estate of the
deceased debtor?

Claim against the estate

-after all the debts has been paid; upon distribution thereto.


Judicial foreclose of the mortgage under Rule 68

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-you can claim for deficiency judgment and satisfy the remaining judgment by motion only in the same action


Recovery of interest or lien therein;

Extrajudicial foreclosure under RA 3135


Judgment arising from injuries

-you solely rely on his mortgage; you dont get any deficiency judgment.
*These remedies are mutually exclusive against each other.

When can the heirs sue on behalf of the estate of the deceased?

Sec 9. How to file a claim

It is when an order of the court assigning such lands to such heir or devisee or until the time allowed for paying
debts has expired although an executor or administrator is appointed and assigned the trust.

It is through a simple application form containing/complying with the following:


Deliver the claim to the clerk of court

When can an executor or administrator compound with the debtor of the deceased?


Serve a copy on the executor or administrator


If the claim is due, it must be supported by affidavit stating the amount due and the fact that there have been
no effects.

Within the approval of the court, an executor or administrator may compound with the debtor of the deceased for a
debt due, and may give a discharge of such debt on receiving a just dividend of the estate of the debtor.


If the claim is not due or contingent, it must be accompanied by affidavit stating the particulars

Sec 10. Answer of executor or administrator


Executor may file answer within 15 days from the service of claim


Answer must set forth claims which decedent has against claimant or else it will be barred forever.

Rule 87- Actions by and against Executors and Administrators

Claims that survive

Claims that do not survive

Rule 87, Section 1

Rule 86, Section 5

Actions that may be commenced directly

against the executor and administrator

Actions that may be commenced against the

estate of the deceased


Recovery of real/personal property

(or any interest therein)


Money claims, debts incurred by the

deceased during his last illness
arising from contract


Enforcement of lien thereon


Action to recover damages arising

from tort


Claims for funeral expenses or for the

last illness of the decedent


Action for revival of money judgment

may be filed against administrator to
preempt prescription of judgment


Judgment for money against


We have limited claims against the estate to the following:

1. Contractual money claims;
2. Funeral expenses;
3. Expenses for the last illness; and
4. Judgments for money.
These are considered as contractual money claims under Rule 86. When you go to Rule 87, you will note that you
cannot file a claim against the estate if it is claimable under Rule 86. So contractual money claims, you cannot
claim it here. That is why in Rule 87, you are also limited to the following claims or actions:

Recovery of real or personal property;

Case: Jose Lee and Alma Aggabao, in their capacities as president and Corporate Secretary, respectively
of Philippine International Life Insurance Company, and Filipino Loan Assistance Group vs. RTC of Quezon
City Branch 85 by Hon. Areola, Branch Clerk of Court Antero, Deputy Sheriff Rivera and pedro Broja, Ma.
Enderes claiming to be Special Administratrix. GR No. 146006, February 23, 2004, J. Corona.
FACTS: Dr. Juvencio P. Ortaez incorporated the Philippine International Life Insurance Company, Inc. on July 6,
1956. At the time of the companys incorporation, Dr. Ortaez owned ninety percent (90%) of the subscribed capital
stock. On July 21, 1980, Dr. Ortaez died. He left behind a wife (Juliana Salgado Ortaez), three legitimate
children (Rafael, Jose and Antonio Ortaez) and five illegitimate children by Ligaya Novicio (herein private
respondent Ma. Divina Ortaez-Enderes and her siblings Jose, Romeo, Enrico Manuel and Cesar, all surnamed
On September 24, 1980, Rafael Ortaez, a legitimate child of Ortaez, filed before the Court of First Instance of
Rizal, Quezon City Branch (now Regional Trial Court of Quezon City) a petition for letters of administration of the
intestate estate of Dr. Ortaez. Private respondent Ma. Divina Ortaez-Enderes and her siblings filed an opposition
to the petition for letters of administration and, in a subsequent urgent motion, prayed that the intestate court
appoint a special administrator. The RTC appointed Rafael and Jose Ortaez as joint special administrator of
his fathers estate.
On April 15, 1989, the decedents wife, Juliana S. Ortaez, claiming that she owned 1,0144 Philinterlife shares of
stock as her conjugal share in the estate, sold said shares with right to repurchase in favor of herein petitioner
Filipino Loan Assistance Group (FLAG), represented by its president, herein petitioner Jose C. Lee. Juliana
Ortaez failed to repurchase the shares of stock within the stipulated period, thus ownership thereof was
consolidated by petitioner FLAG in its name. On October 30, 1991, Special Administrator Jose Ortaez, acting
in his personal capacity and claiming that he owned the remaining 1,0115 Philinterlife shares of stocks as his
inheritance share in the estate, sold said shares with right to repurchase also in favor of herein petitioner FLAG,
represented by its president, herein petitioner Jose C. Lee. After one year, petitioner FLAG consolidated in its
name the ownership of the Philinterlife shares of stock when Jose Ortaez failed to repurchase the same.
It appears that several years before (but already during the pendency of the intestate proceedings at the Regional
Trial Court of Quezon City, Branch 85), Juliana Ortaez and her two children, Special Administrators Rafael
and Jose Ortaez, entered into a memorandum of agreement dated March 4, 1982 for the extrajudicial
settlement of the estate of Dr. Juvencio Ortaez, partitioning the estate (including the Philinterlife shares of
stock) among themselves. This was the basis of the number of shares separately sold by Juliana Ortaez on April
15, 1989 (1,014 shares) and by Jose Ortaez on October 30, 1991 (1,011 shares) in favor of herein petitioner
Private respondent Ma. Divina OrtaezEnderes and her siblings (hereafter referred to as private respondents
Enderes et al.) filed a motion for appointment of special administrator of Philinterlife shares of stock. This move was
opposed by Special Administrator Jose Ortaez. The intestate court granted the motion of private respondents
Enderes et al. and appointed private respondent Enderes special administratrix of the Philinterlife shares of
stock. Enderes moved to void the memorandum of agreement earlier entered and the deed of sale of
Philinterlife shares of stock to FLAG. Both were opposed by the Ortanez. Further, the sales in question were
entered into by Juliana S. Ortaez and Jose S. Ortaez in their personal capacity without prior approval of the

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Court, the same is not binding upon the Estate. In addition, another order was issued by the intestate court
annulling the memorandum of agreement. A petition for certiorari was filed before the Court of Appeals. The
appellate court denied the petition reiterating that the same transactions were void since they were not approved by
the intestate court. The case elevated to the Supreme Court which was dismiss due to technicality. The motion for
reconsideration of Ortanez was likewise denied with finality. Respondent Special Administrator Endres and
her siblings filed a motion for execution of the orders of the intestate court. The court a quo granted the
motion and issued a writ of execution against petitioners. This was appealed by the petitioners before the
Court of Appeals, however the CA did not give credence to the petition. Private respondents then filed a motion to
direct the branch clerk of court to reinstate the name of Dr. Ortaez in the stock and transfer book of Philinterlife
and issue the corresponding stock certificate. The intestate court granted the motion. Petitioners, this time,
questions the order of the intestate court directing the branch clerk order of the intestate court directing the branch
clerk of court to issue the stock certificates. They also questioned in the Court of Appeals the order of the intestate
court nullifying the sale made in their favor by Juliana Ortaez and Jose Ortaez. On November 20, 2002, the
Court of Appeals denied their petition and upheld the power of the intestate court to execute its order. Hence, this
1. Whether the sale of the shares of stock to FLAG by petitioners is valid?
2. Can the intestate court nullify the said transaction?
1. No. What we have here is a situation where some of the heirs of the decedent without securing court approval
have appropriated as their own personal property the properties of [the] Estate, to the exclusion and the extreme
prejudice of the other claimant/heirs. In other words, these heirs, without court approval, have distributed the asset
of the estate among themselves and proceeded to dispose the same to third parties even in the absence of an
order of distribution by the Estate Court. As admitted by petitioners counsel, there was absolutely no legal
justification for this action by the heirs. There being no legal justification, petitioner has no basis for demanding that
public respondent [the intestate court] approve the sale of the Philinterlife shares of the Estate by Juliana and Jose
Ortaez in favor of the Filipino Loan Assistance Group.
From the above decision, it is clear that Juliana Ortaez, and her three sons, Jose, Rafael and Antonio, all
surnamed Ortaez, invalidly entered into a memorandum of agreement extrajudicially partitioning the intestate
estate among themselves, despite their knowledge that there were other heirs or claimants to the estate and before
final settlement of the estate by the intestate court. Since the appropriation of the estate properties by Juliana
Ortaez and her children (Jose, Rafael and Antonio Ortaez) was invalid, the subsequent sale thereof by Juliana
and Jose to a third party (FLAG), without court approval, was likewise void.
An heir can sell his right, interest, or participation in the property under administration under Art. 533 of the Civil
Code which provides that possession of hereditary property is deemed transmitted to the heir without interruption
from the moment of death of the decedent. However, an heir can only alienate such portion of the estate that may
be allotted to him in the division of the estate by the probate or intestate court after final adjudication, that is, after
all debtors shall have been paid or the devisees or legatees shall have been given their shares. This means that an
heir may only sell his ideal or undivided share in the estate, not any specific property therein. In the present case,
Juliana Ortaez and Jose Ortaez sold specific properties of the estate (1,014 and 1,011 shares of stock in
Philinterlife) in favor of petitioner FLAG. This they could not lawfully do pending the final adjudication of the estate
by the intestate court because of the undue prejudice it would cause the other claimants to the estate, as what
happened in the present case.
Juliana Ortaez and Jose Ortaez sold specific properties of the estate, without court approval. It is well-settled
that court approval is necessary for the validity of any disposition of the decedents estate. In the early case of
Godoy vs. Orellano, we laid down the rule that the sale of the property of the estate by an administrator without
the order of the probate court is void and passes no title to the purchaser.

2. Yes. We see no reason why it cannot. The intestate court has the power to execute its order with regard to the
nullity of an unauthorized sale of estate property, otherwise its power to annul the unauthorized or fraudulent
disposition of estate property would be meaningless. In other words, enforcement is a necessary adjunct of the
intestate or probate courts power to annul unauthorized or fraudulent transactions to prevent the dissipation of
estate property before final adjudication.
We are not dealing here with the issue of inclusion or exclusion of properties in the inventory of the estate because
there is no question that, from the very start, the Philinterlife shares of stock were owned by the decedent, Dr.
Juvencio Ortaez. Rather, we are concerned here with the effect of the sale made by the decedents heirs, Juliana
Ortaez and Jose Ortaez, without the required approval of the intestate court. This being so, the contention of
petitioners that the determination of the intestate court was merely provisional and should have been
threshed out in a separate proceeding is incorrect.
What will the court do when an executor or administrator, heir or other interested in the estate of the
deceased complains of a person being suspected of having concealed, embezzled, or conveyed away any
of the property of the deceased, or when such person is in possession or has knowledge of any deed,
conveyance, bond, contract or other writing which contains evidence of or tends to disclose the right,
titled, interest or claim of the deceased to real or personal property or the will of the deceased?
The court may cite such suspected person to appear before it any may examine him on oath on the matter of such
complaint; and if the person so cited refuses to appear, or to answer on such examination or such interrogatories
as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the
order of the court. The interrogatories put any such person, and his answers thereto, shall be in writing and shall be
filed in the clerk's office.
What if that person in the above scenario, embezzled or alienates any part of the estate before letters are
issued, what will be his liability?
Such person shall be liable to an action in favor of the executor or administrator of the estate for double the value of
the property sold, embezzled, or alienated, to be recovered for the benefit of such estate.
What if the person who fraudulently conveyed the property of the estate is the deceased in his lifetime with
intent to defraud his creditors that time of alienation, what will the executor or administrator do?
When the following appears:

When there is a deficiency of assets in the hands of an executor or administrator for the payment of
debts and expenses of administration, and


The deceased in his lifetime had conveyed real or personal property, or a right or interest therein, or an
debt or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or


Had so conveyed such property, right, interest, debt or credit that by law the conveyance would be void
as against his creditors, and the subject of the attempted conveyance would be liable to attachment by
any of them in his lifetime,

The executor or administrator may commence and prosecute to final judgment an action for the recovery of such
property, right, interest, debt, or credit for the benefit of the creditors; but he shall not be bound to commence the
action unless on application of the creditors of the deceased, not unless the creditors making the application pay
such part of the costs and expenses, or give security therefor to the executor or administrator, as the court deems
With respect to the above scenario, when may creditor bring an action?
It is when there is such a deficiency of assets, and the deceased in his lifetime had made or attempted such a
conveyance, as is stated in the last preceding section, and the executor or administrator has not commenced the
action therein provided for, any creditor of the estate may, with the permission of the court, commence and
prosecute to final judgment, in the name of the executor or administrator, a like action for the recovery of the
subject of the conveyance or attempted conveyance for the benefit of the creditors.

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In relation to the above prosecution by creditor, are there any requirements with that respect?
Yes. The following must be complied with by the creditor:

The parties under Sec. 7, Rule 86 are the estate of the decedent and the creditor. The creditors may have
affirmative remedies as to their claims against the decedent such as going after his estate. The estate is the debtor,
the mortgagor (mortgage due from the estate). As compared to Sec. 5, Rule 87, the estate is the mortgagee.


The creditor must file in a court a bond executed to the executor or administrator, in an amount approved
by the judge,


This bond must be conditioned to indemnify the executor or administrator against the costs and
expenses incurred by reason of such action.

NO. He is only allowed one remedy which is foreclosure.


Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and
other expenses incurred therein as the court deems equitable.

Rule 88- Payment of the Debts of the Estate


Where the conveyance or attempted conveyance had been made by the deceased in his lifetime in favor
of the executor or administrator, the action which a creditor may bring shall be in the name of all the
creditors, and permission of the court and filing of bond as above prescribed, are not necessary.

When should executor or administrator pay debts of the estate?

What about if there is complaint by the executor or administrator against person entrusted with the estate
to be compelled in rendering account for the estate, what will the action of the court with that respect?
The court may cite a person entrusted by an executor or administrator with any part of the estate of the deceased
to appear before it, and may require such person to render a full account, on oath, of the money, goods, chattels,
bonds, account, or other papers belonging to such estate as came to his possession in trust for such executor or
administrator, and of his proceedings thereon; and if the person so cited refuses to appear to render such
account, the court may punish him for contempt as having disobeyed a lawful order of the court.
In actions by and against executors and administrators, where will the executor or administrator get his
money to satisfy your prayer in your action? Is it not from the estate also? Hence, why not make it filed BY
The reason is this, since Rule 86 is not an action, it presupposes that the action was already done in this Rule.
However, in Rule 87, it is a separate and distinct action, so that if it is a complaint, you always file it against the
executor or administrator. Rule 87 is but an independent action. It is not even necessary here if there is testate or
intestate proceeding. Hence, why by executor OR administrator?
You mean to say that there can be no administrator without an estate proceeding?
No. There can be an administrator even if there is no estate proceeding because you can even undertake
extrajudicial settlement of the estate. In extrajudicial settlement, there can be an agreement by and between the
parties as to the administrator of the estate. The estate does not have a separate and distinct personality. It is only
an entity authorized by law in special cases.

Is the estate, under Sec. 5, Rule 87 allowed the alternative remedies in Sec 7, Rule 86?

It is after hearing all the money claims against the estate, and after ascertaining the amount of such claims, it
appears that there are sufficient assets to pay the debts. Before the expiration of the time limited for the payment of
the debts, the court shall order the payment thereof.
What if an appeal was duly taken from the decision of the court concerning a claim, what will be its effect
for such order of payment and distribution of assets?
The court may suspend the order for the payment of the debts or may order the distributions among the creditors
whose claims are definitely allowed, leaving in the hands of the executor or administrator sufficient assets to pay
the claim disputed and appealed. When a disputed claim is finally settled the court having jurisdiction of the estate
shall order the same to be paid out of the assets retained to the same extent and in the same proportion with the
claims of other creditors.
What if the testator makes provision in his will about payment of debts, will this be respected and followed
Yes. If the testator makes provision by his will, or designates the estate to be appropriated for the payment of his
debts, the expenses of administration, or the family expenses, they shall be paid according to the provisions of the
However, when will this provision not used and what is the remedy if deficiency with respect to such
provision in the estate accrues?
If the provision made by the will or the estate appropriated, is not sufficient for that purpose, such part of the estate
of the testator, real or personal, as is not disposed of by will, if any shall be appropriated for that purpose.
What is the preferred part of estate of the deceased to be chargeable for debts of the deceased?

Sue and be sued

As a general rule, the estate cannot sue and be sued. It can only be sued in certain instances. It cannot be sued
because under Sec.1, Rule 3 (Who may be parties), it is only an entity authorized by law that is allowed to be
parties to civil actions. That is whyyou file against the executor or administrator. Remember that an executor or
administrator is a natural person. Unlike in guardianship wherein a guardian can be a juridical person only in
guardianship over the property of the ward; however, in guardianship over the ward, the guardian cannot be an
artificial being or corporation.
Compare Sec. 7, Rule 86 (Mortgage debt due from estate) with Sec. 5, Rule 87 (Mortgage due estate may be

It is the personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts
and expenses meaning, the decedents FREE PORTION shall first be chargeable for debts of the estate.
What if such free portion is not sufficient for payment of debts or if its sale would redound to the detriment
of the participants of the estate, what will be the remedy therefrom?
Now, the whole of the real estate not dispose of by will, or so much thereof as is necessary, may be sold,
mortgaged, or otherwise encumbered for that purpose by the executor or administrator, after obtaining the authority
of the court therefor.
What if this will not be sufficient, what is then the remedy to pay all the debts of the estate?
Any deficiency shall be met by contributions in accordance with the respective contributive shares of the devisees,
legatees or heirs in possession of portions of the estate BEFORE THE DEBTS AND EXPENSES HAVE BEEN

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SETTLED AND PAID and have become liable to contribute for the payment of such debts and expenses. The court
may issue execution if the case may require.

It must be in accordance with the terms of such order by the court for such payment of debts.
Is the time for payment of debts and legacies fixed, or subject to extension, for how long, if any?

In Rule 86, we come to know that contingent claims exist and could be filed against the estate, how will the
executor or administrator allot for such claim?


If the payment of debts is done personally by the executor or administrator:


The executor or administrator must retain in his hands sufficient estate to pay such contingent claim when the same
becomes absolute,
What if the estate becomes INSOLVENT, what will be the remedy?

Preference of Credit shall be resorted to.


However, if there are no assets sufficient to pay the credits of any one class of creditors after paying the
credits entitled to preference over it, each creditor within such class shall be paid a dividend in proportion
to his claim. *However, no creditor of any one class shall receive any payment until those of the
preceding class are paid.


If the insolvency pertains to a nonresident who has properties in the Philippines, the same shall be so
disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to
their respective credits. (PRO-RATA)


If the insolvency pertains to a resident person in the Philippines but the claims has duly proved outside,
the court shall receive a certified list of such claims, when perfected in such country, and add the same to
the list of claims proved against the deceased person in the Philippines so that a just distribution of the
whole estate may be made equally among all its creditors according to their respective claims.

* But the benefit of this and the preceding sections shall not be extended to the creditors in
another country if the property of such deceased person there found is not equally
apportioned to the creditors residing in the Philippines and the other creditor, according to their
respective claims.

What is the rule with respect to contingent claim becoming ABSOLUTE in 2 years allowed and paid?


If such contingent claim becomes absolute and is presented to the court, or to the executor or
administrator, within two (2) years from the time limited for other creditors to present their claims:

It may be allowed by the court if not disputed by the executor or administrator and,


If disputed, it may be proved and allowed or disallowed by the court as the facts may warrant.


If the contingent claim is allowed, the creditor shall receive payment to the same extent as the
other creditors if the estate retained by the executor or administrator is sufficient.

But if the claim is not so presented, after having become absolute, within said two (2) years, and allowed,
the assets retained in the hands of the executor or administrator, not exhausted in the payment of claims,
shall be distributed by the order of the court to the persons entitled to the same;

But the assets so distributed may still be applied to the payment of the claim when established,
and the creditor may maintain an action against the distributees to recover the debt, and
such distributees and their estates shall be liable for the debt in proportion to the estate they
have respectively received from the property of the deceased.

What if after the first distribution of assets, the whole of the debts are not paid and if the whole assets are
not yet distributed or afterwards other assets come to the hands of the executor or administrator, what will
the court do?
The court may from time to time make further orders for the distributions of assets.
What is the basis of payment to creditors?


On granting letters testamentary or administration, the court shall allow to the executor or
administrator a time for disposing of the estate and paying the debts and legacies of the
deceased, which shall not, in the first instance, exceed one (1) year; but the court may, on
application of the executor or administrator and after hearing on such notice of the time and
place therefor given to all persons interested as it shall direct, extend the time as the
circumstances of the estate require not exceeding six (6) months for a single extension not so
that the whole period allowed to the original executor or administrator shall exceed two (2)

If the executor or administrator dies, and the new administrator of the same estate is appointed:

An application is still required and notice to be given of the time and place for hearing such
application so that the court may extend the time allowed for the payment of the debts or
legacies beyond the time allowed to the original executor or administrator, not exceeding six
(6) months at a time and not exceeding six (6) months beyond the time which the court might
have allowed to such original executor or administrator

Rule 89- Sales, Mortgages, and other Encumbrances of Property of the Decedent
The fundamental reason for sales, mortgages, and other encumbrances is to pay off debts.
When will sale of personal estate of the deceased be allowed?
Upon the application of the executor or administrator, and on written notice to the heirs and other persons
interested, the court may order the whole or a part of the personal estate to be sold, if it appears necessary for the
purpose of:

paying debts,


expenses of administration, or


legacies, or


preservation of the property.

When may the court authorize sale, mortgage or other encumbrance of REALTY of the estate for payment of
debts and legacies though PERSONALTY is not yet exhausted?
When any of the following appears:

When the personal estate of the deceased is not sufficient to pay the debts, expenses of administration,
and legacies, or


Where the sale of such personal estate may injure the business or other interests of those interested in
the estate, and


Where a testator has not otherwise made sufficient provision for the payment of such debts, expenses,
and legacies,

The court, on the application of the executor or administrator and on written notice of the heirs, devisees, and
legatees residing in the Philippines, may:

Authorize the executor or administrator to sell, mortgage, or otherwise encumber so much as may
be necessary of the real estate, in lieu of personal estate, for the purpose of paying such debts,
expenses, and legacies,


If it clearly appears that such sale, mortgage, or encumbrance would be beneficial to the persons
interested; and

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If a part cannot be sold, mortgaged, or otherwise encumbered without injury to those interested in
the remainder, the authority may be for the sale, mortgage, or other encumbrance of the whole of
such real estate, or so much thereof as is necessary or beneficial under the circumstances.

(e) If the estate is to be sold at auction, the mode of giving notice of the time and place of the sale shall
be governed by the provisions concerning notice of execution sale;
(f) There shall be recorded in the registry of deeds of the province in which the real estate thus sold,
mortgage, or otherwise encumbered is situated, a certified copy of the order of the court, together with
the deed of the executor or administrator for such real estate, which shall be as valid as if the deed had
been executed by the deceased in his lifetime.

What if the person in X, interested in the estate of H, wanted to prevent such sale, mortgage or
encumbrance, can he do so?
Yes. If that person does:

Gives a bond, in a sum to be fixed by the court, conditioned to pay the debts, expenses of administration,
and legacies within such time as the court directs; and

What if the deceased during his lifetime entered into a contract, binding in law, with respect to a deed of
real property or an interest therein, what will the court do?


Such bond shall be for the security of the creditors, as well as of the executor or administrator, and may
be prosecuted for the benefit of either.

On application for that purpose, the court may authorize the executor or administrator to convey such property
according to such contract, or with such modifications as are agreed upon by the parties and approved by the
court. If the contract is to convey real property to the executor or administrator, the clerk of court shall execute the
deed. The deed executed by such executor, administrator, or clerk of court shall be as affectual to convey the
property as if executed by the deceased in his lifetime. However, no such conveyance shall be authorized until
notice of the application for that purpose has been given personally or by mail to all persons interested, and such
further notice has been given, by publication or otherwise, as the court deems proper; nor if the assets in the hands
of the executor or administrator will thereby be reduced so as to prevent a creditor from receiving his full debt or
diminish his dividend.

When may court authorize the sale of estate as beneficial to interested persons?
It is authorized upon application of the executor or administrator and on written notice to the heirs, devisees, and
legatees who are interested in the estate to be sold, authorize the executor or administrator to sell the whole or a
part of said estate, although not necessary to pay debts, legacies, or expenses of administration. However, such
authority shall not be granted if inconsistent with the provisions of a will. In case of such sale, the proceeds shall be
assigned to the persons entitled to the estate in the proper proportions.
What if there is an existing debt of such deceased to other countries, what will our court do?
The court here may authorize the executor or administrator to sell the personal estate or to sell, mortgage, or
otherwise encumber the real estate for the payment of debts or legacies in the other country, in same manner as
for the payment of debts or legacies in the Philippines.
Can our court also authorize sale, mortgage or other encumbrance of realty acquired on execution or
Yes. The court may authorize an executor or administrator to sell mortgage, or otherwise encumber real estate
acquired by him on execution or foreclosure sale, under the same cicumstances and under the same regulations as
prescribed in this rule for the sale, mortgage, or other encumbrance of other real estate.
Regulations for granting authority to sell, mortgage or otherwise encumber estate.
(a) The executor or administrator shall file a written petition setting forth the debts due from the
deceased, the expenses of administration, the legacies, the value of the personal estate, the situation of
the estate to be sold, mortgaged, or otherwise encumbered, and such other facts as show that the sale,
mortgage, or other encumbrance is necessary or beneficial.

What if the deceased H, had held real property in trust for another person, what will the court do with the
The court may after notice given as the same in the above scenario, authorize the executor or administrator to
deed such property to the person, or his executor or administrator, for whose use and benefit it was so held. Also,
the court may order the execution of such trust, whether created by deed or by law.
Rule 90- Distribution and Partition of the Estate
After all these claims have been settled, all debts have been paid, you go now to distribution. This is the last stage.
But in the distribution of the estate, what Rule should be followed?
First, before distribution, there shall be payment of debts.
What are these debts?
There are only 5 specific kinds of debts.

Debts of the decedent;

(b) The court shall thereupon fix a time and place for hearing such petition, and cause notice stating the
nature of the petition, the reasons for the same, and the time and place of hearing, to be given personally
or by mail to the persons interested, and may cause such further notice to be given, by publication or
otherwise, as it shall deem proper;


Funeral expenses;


Expenses for administration;


Allowance for the widow; and

(c) If the court requires it, the executor or administrator shall give an additional bond, in such sum as the
court directs, conditioned that such executor or administrator will account for the proceeds of the sale,
mortgage, or other encumbrance;



(d) If the requirements in the preceding subdivisions of this section have been complied with, the court,
by order stating such compliance, may authorize the executor or administrator to sell, mortgage, or
otherwise encumber, in proper cases, such part of the estate as is deemed necessary, and in case of
sale the court may authorize it to be public or private, as would be most beneficial to all parties
concerned. The executor or administrator shall be furnished with a certified copy of such order;

When will the ORDER FOR DISTRIBUTION of residue made?

When all of the following have been paid and done:

the debts, funeral charges, and expenses of administration,


the allowance to the widow,


and inheritance tax, if any, chargeable to the estate in accordance with law,

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The court, on the application of the executor or administrator, or of a person interested in the estate, and after
hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and
the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective
shares from the executor or administrator, or any other person having the same in his possession.
What if there is a controversy as to who are lawful owners of the shares/residues, what will be done?
The controversy shall be heard and decided as in ordinary cases. Also, questions as to advancement made or
alleged to have been made by the deceased to any heir may be heard and determined by the court and the final
order of the court shall be binding on the persons raising the questions and on the heir.
Is the above procedure always absolute as to the payment first of all the expenses/debts of the deceased?
No. Distribution shall be allowed if the distributees, or any of them, give a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations within such time as the court directs.
When may executor or administrator pay for the expenses of partition?
If at the time of distribution the executor or administrator has retained sufficient effects in his hands which may
lawfully be applied for the expenses of partition of the properties distributed, such expenses of partition may be
paid by such executor or administrator when it appears equitable to the court and not inconsistent with the intention
of the testator. Otherwise, they shall be paid by the parties in proportion to their respective shares or interest in the
premises, and the apportionment shall be settled and allowed by the court, and, if any person interested in the
partition does not pay his proportion or share, the court may issue an execution in the name of the executor or
administrator against the party not paying the sum assessed.
Where will the recording of these final orders and judgments of the court relating to the real estate or the
partition are done?
Certified copies of final orders and judgments of the court relating to the real estate or the partition thereof shall be
recorded in the registry of deeds of the province where the property is situated.
Under the rules on preference of credit, taxes are given priority. Is there an exception? What did your Labor
Law teacher teach you about that?
Under PNB vs. NLRC case (March 1990): In case of liquidation of the assets of the corporation, even taxes give
way to unpaid salaries and wages. But in all other instances, its always the taxes that will prevail.
The estate is worth one million (P1M). After payment of debts, all that had been paid amounted to P500T.
How much is left for distribution?
Only P500T.
If there are 5 compulsory heirs, devisees and legatees, A, B, C, D, E, and under the will, A should receive
P500T; B- P100T; C- P100T; D and E- P50T each and what remains is only P500T, how will you distribute the
Distribute the estate by ratio and proportion.
Suppose the asset was P10M gross value and the obligation was only P1M. You have P900T left but the will
says to distribute only P500T; P100T; P100T and P50T to the last two, where will that excess go?
It should be distributed in accordance with intestate succession but also pro rata. Remember we are talking here of
the remainder, hence, no more debts to be paid. We have also studied the Rules on contingent claims, under Sec.
4, Rule 74 (Liability of Distributees and Estate), and the two-year lien.