OROSA NOTES

SPECIAL PROCEEDING
JUSTICE GESMUNDO

RULE 2 plaintiff; party

ACTIONS IN GENERAL defendant petitioner,
movant
SEC 1. Action defined. 7. DEFAULT rules on NOT Apply
ACTION means an ordinary suit in a CT of justice, default APPLY
by which 1 party prosecutes another 8. CT IS general limited
1. for the enforcement or protection of a RIGHT, or jurisdiction jurisdiction
2. the prevention or redress of a WRONG. 9. ISSUES ARE By pleadings by law and
DETERMINED not pleadings
SEC 2. Special Proceeding Distinguish. 10. PERIOD OF GR : 15 days 30 days ;
Every other remedy, including one APPEAL EXCEPT
1. to establish the status or habeas
2. right of a party or a particular fact, corpus 48
shall be by special proceeding. hrs
11. APPEAL one appeal; multiple
all questions appeal
Distinguish an action from SpecPro. of fact/law allowed (Rule
109)
ACTION SPECIAL 12. DAMAGES CT can CT cannot
PROCEEDING award award
1. DEFINITION See Above See Above damages damages
Sec 1 Sec 2 13. PRESCRIPTIO Actions NOT
N prescribe
2. GOVERNED Rules 2 71 Rules 72
BY of the Rules 109 What is the extent of the jurisdiction of the RTC (CFI) acting as
of CT probate CT in special proceeding ?
3. INITIATED BY filing an by mere The CFI, acting as probate CT, has limited jurisdiction, and can take
action or application or cognizance only of matters of probate, both testate and intestate
complaint; petition or by estates, and all such special cases and proceedings not otherwise
requires the filing a provided for. The jurisdiction of the probate CT is limited and special
filing of motion and this should be understood to comprehend only cases related to
formal those powers specified in the law, and cannot extend to adjudication
pleading of collateral matters.
4. TITLED A vs B In the Matter
of The petition for reconveyance has given rise to a controversy
In Re : involving rights over a real property which would require the
5. NATURE OF Adversarial Not presentation of evidence and the determination of legal questions
PROCEEDING that should be ventilated in a CT of general jurisdiction.
6. PARTIES 2 definite a definite (Mangaliman vs Gonzales)
parties party, but no
definite When questions arise as to ownership of property alleged to be a
adverse part of the estate of a deceased person but claimed by some other
OROSA NOTES
person to be his property, not by virtue of any right of inheritance
from the deceased and his estate, such questions cannot be
determined in the CT of administrative proceedings. The CFI, acting
as a probate CT, has no jurisdiction to adjudicate such contentions,
which must be submitted to the CFI in the exercise of its general
jurisdiction. (Baybayan vs Aquino)
RULE 72
SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
14. voluntary Dissolution of corporations
15. Escheat
Note that, children in guardinanship / custody extends to
incompetents
in (m), absence and death there cannot be a special proceeding
instituted just to obtain a declaration of death. Actual or presumptive
death cannot be the subject of judicial pronouncement or declaration
if it is the only question or matter involved in a case or upon which a
competent CT has to pass, such declaration may be made ONLY IN
CONNECTION WITH THE PROCEEDINGS FOR THE SETTLEMENT OF THE ESTATE OF
THE ALLEGED DECEDENT.

SEC 1. Subject Matter of Proceedings :

Rules of special proceedings are provided for in the following cases : (A SEC 2. Applicability of Rules of Civil Actions
FART S IN CHARGE) In the absence of special provisions,
1. Settlement of estate of deceased persons the rules provided for in ordinary actions shall be,
2. Escheat so far as practicable, applicable in special proceedings.
3. Guardianship and custody of children
4. Trustees
5. Adoption How should the rules provided for in special proceedings be
6. Rescission and revocation of adoption CONSTRUED ?
7. hospitalization of Insane persons Liberally construed.
8. Habeas corpus Lapses in the literal observance of a rule of procedure will be
9. change of Name overlooked when they (P2HD)
10. voluntary Dissolution of corporations 1. do not involve PUBLIC POLICY
11. judicial approval of voluntary Recognition of minor natural 2. have NOT PREJUDICED the adverse party
children 3. arose from an HONEST MISTAKE or UNFORESEEN ACCIDENT
12. constitution of Family home 4. have NOT DEPRIVED THE CT of authority
13. declaration of Absence and death
14. cancellation or correction of entries in the Civil registry Is the STATUTE OF LIMITATIONS applicable to probate proceedings ?
No, to do so would be destructive of the right to testamentary
What may be the SUBJECT MATTER of special proceedings ? disposition and violative of the owners right to control his property
A-FART-S-IN-CHARGE (tabingangs mnemonics !) within the legal limits. It is not w/o purpose that Rule 76 prescribes
1. Adoption that any person interested in the estate may AT ANY TIME after the
2. constitution of Family home death of the testator petition the CT having jurisdiction to have the
3. declaration of Absence and death will allowed.
4. Rescission and revocation of adoption
5. Trustees Is PRE-TRIAL applicable in special proceedings ?
6. Settlement of estate of deceased persons Yes, as there is no provision in the Rules of CT limiting its
7. hospitalization of Insane persons applicability to Civil actions.
8. change of Name
9. cancellation or correction of entries in the Civil registry Is JUDGMENT BY DEFAULT applicable to proceedings to probate a will ?
10. Habeas corpus No, default can only arise in contentious litigation, where a party
11. Appeals in Special Proceedigns who has been impleaded as a defendant and served with process
12. judicial approval of voluntary Recognition of minor natural children fails to appear at the time required in the summons or to answer at
13. Guardianship and custody of children the time provided with ROC.
OROSA NOTES

The probate proceedings is not a contentious litigation in any sense

because nobody is impleaded or served with process. It is a SPECIAL
PROCEEDING and although notice of the application is published,
NOBODY IS BOUND TO APPEAR and ,thus, no order or judgment default is
ever entered.

What is the PROCEDURE OF APPEAL in special proceedings ?

In an appeal in a special proceeding under Rule 109 and in other
cases wherein multiple appeals are allowed, the period of appeal is
30 days, a record of appeal being required.
IF a motion for new trial, or reconsideration is filed and denied,
the remaining period w/in w/c to file a record of appeal may be too
short and hence, a motion for extension of time to file the record on
appeal may be granted subject to certain requirements.

Are appeals in special proceedings w/in the exclusive appellate

jurisdiction of the CA, as they are not enumerated in Sec 17 of the
Judiciary Act?
No, civil case includes special proceedings. A special proceeding has
never been held Not to be a civil case. Rule 73, Sec 2 provides that
the rules of ordinary civil action are applicable in special proceedings
if they are not inconsistent w/ or serve to complement special
proceedings.
OROSA NOTES
RULE 73
VENUE AND PROCESS
SEC 1. Where estate of deceased persons settled
If the decedent is an INHABITANT OF THE PHILIPPINES
At the time of his death
Whether a citizen or an alien
His will shall be proved
Or letters of administration granted
And his estate settled
In the CFI in the province in which he resides
At the time of his death
And if he is an INHABITANT OF A FOREIGN COUNTRY
the CFI of ANY province in which he had an estate.
The CT first taking cognizance of the settlement of the estate of a
decedent
shall exercise jurisdiction to the exclusion of all other CTs.
The jurisdiction assumed by a CT, so far as it depends
on the place of residence of the decedent, or
of the location of his estate
shall NOT BE CONTESTED in a suit or proceeding,
EXCEPT
1) in an appeal from that CT, in the original case, or
2) when the want of jurisdiction appears on the record.
What are the STEPS in determining which CT has jurisdiction over the
probate of a will ?
The following must first be determined :
1. whether the decedent is a resident of the Philippines or not
2. Gross value of the estate (to det whether it is the MTC or RTC
which has jurisdiction and whether it could be subject to
summary settlement of estate under Rule 74)
3. the residence / properties located to determine the venue
4. whether the deceased left any debt
5. whether the deceased left a will
What are the MODES OF SETTLEMENT of estate ?
A. Judicial
1. Summary Settlement of Estate of Small Value
2. partition (Rule 69)
3. administration proceedings
4. escheat proceedings
5. Testate/Intestate Setlement
B. Extra-Judicial Proceedings
1. adjudication of sole heir
2. extrajudicial settlement of estate
What is the JURISDICTION OF A PROBATE CT ?
Probate proceedings are purely statutory, thus, probate CTs
jurisdiction is LIMITED AND SPECIAL and all acts in excess of the
statutory power conferred are nugatory and do not bind those
who have invoked its authority or submitted to its decision.
The authority/jurisdiction cannot expand to collateral matters not
arising out of or in any way related to the settlement and
adjudication of the properties of the deceased.
When does the CT acquire jurisdiction in the settlement of the estate
of the deceased who died with a will ?
Jurisdiction of a probate CT over the estate of a deceased person
attaches when its limited jurisdiction is invoked by the presentation
to the CT of proper petition by some person entitled to take such
action (DELTA). There must be evidence before it :
1. that a person died leaving a will
2. in the case of resident of this country, that he died in the
province where the CT exercises territorial jurisdiction
3. in case of a non-resident, that he has left an estate in the
province where the CT is situated
4. that the testament or last will of the deceased has been
delivered to the CT and is in possession thereof (Salazar vs
CFI)
The payment of the filing fees is not jurisdictional in the sense that
this omission does not deprive the CT of its authority to proceed w/
the probate of the will. (Tutoo pa ba toh? 1937 case kasi)
What determines the VENUE in the settlement of the estate of a
deceased person ?
The residence of the decedent at the time of his death is
determinative of the venue of the proceedings.
a. if the decedent is a RESIDENT of the Philippines at the time of his
death his will shall be proved , or letter of administration
granted and his will settled in the MTC/RTC of the province in
which he RESIDES at the time of his death.
b. if the decedent is a NON- RESIDENT of the Philippines at the time
of his death his will shall be proved , or letter of
OROSA NOTES
administration granted and his will settled in the MTC/RTC of
ANY PROVINCE WHICH HE HAD AN ESTATE.
What is the rule on JURISDICTION of settlement of estate according to
BP 129 ?
w/in Metro Manila : >400 K RTC
<= 400 K MTC
Outside Metro Manila : >300 K RTC
<= 300 K MTC
What do you mean by RESIDENCE ?
ACTUAL, HABITUAL, PHYSICAL habitation of a person or actual residence
or place of abode in the place. not the same as domicile.
In Rule 73, Sec 1, residence rather than domicile is the significant
factor. Even where the statute uses the word domicile it is
construed as meaning residence and not domicile in the technical
sense.
Is the RESIDENCE of the deceased in probate proceedings
JURISDICTIONAl?
No !! The question of residence is determinative only of the venue
and does not affect the jurisdiction of the CT. Thus, the institution of
the proceeding in the province wherein the decedent neither has
residence nor estate does not vitiate the action of the probate CT.
(Take note of THIS!)
Venue is waivable, the submission of all affected parties to said
proceedings is a waiver of objection to this error.
What should the CT do if the objection of improper venue is
seasonable raised ?
The petition for probate should be dismissed and the proceedings
should be instituted e in the proper CT.
What is the REMEDY of a party if the CT REFUSES TO DISMISS the
petition for probate despite a timely objection on the ground of
improper venue ?
The jurisdiction of a probate CT depending on the place of residence
of the decedent or on the location of his estate cannot be contested
in a certiorari proceeding, but only in an appeal from the original
case, Except : when the want of jurisdiction appears on the record.
Ex : Haliparot died in the Tsunami incident while she is domiciled in
Sri Lanka. She left properties in Davao and Bataan. A petition for
settlement of estate was filed in Manila alleging that she is a
resident of the City at the time of her death. But the death
certificate attached in the petition showed that at the time of her
death she is domiciled in Sri Lanka. The remedy is petition for
certiorari since the want of jurisdiction appears on the record.
Ex : Heidi died in Cebu City, strangled by an ex-girlfriend of her new
husband. A petition for probate of her will was filed in Cebu City.
The death certificate showed that she is a resident of Cebu at the
time of her death. But oppositors wanted to show that in truth and
in fact she is a resident of Quezon City by presenting residence
certificates, deed of sale executed just before she died, which show
that she is a resident of Quezon City. The remedy is appeal from
the original case (Rule 109) as the want of jurisdiction does not
appear on the record.
X filed a petition to probate the will of B. In his petition, he alleges
that B is a resident of Makati, bu the files the same in Manila. Y
opposes because the decedent is a resident of Makati. Resolve :
The petition should be dismissed on the ground of improper venue.
From the allegation in the petition, it is clear that the venue is
improperly laid.
What if the CT denies the opposition and allows the will to be
presented for probate, what is your remedy ?
The remedy is file certiorari proceedings before the CA because it is
clear that the lower CT has no jurisdiction since as alleged in the
petition, B was a resident of Makati, while the petition was filed in
Manila. You do not file an appeal, it would only have the effect of
questioning the jurisdiction of the CT but at the same time
recognizing the jurisdiction of the CT.
Can venue be waived ?
Venue is a matter of procedure which may be waived or impliedly
even in inferior CTs. where the defendant, knowing from the very
beginning that venue was improperly laid, allows the trial to be held
against him, he cannot after the rendition of an unfavorable
judgment validly appear in CT and raise the question of jurisdiction.
It is deemed waived and can no longer be pleaded.
What do you mean by The CT first taking cognizance of the
settlement of the estate of a decedent shall exercise jurisdiction to
the exclusion of all other CTs
Filing is not sufficient, there must be cognizance of the CT. There
must be other positive act such as sending out notice of hearing or
causing publication before one can say that t he CT has acquired
jurisdiction.
What is the rule when the settlement of the estate of a deceased
resident are instituted in 2 or more CTs and the question of venue is
raised before the same ? When does a CT ACQUIRE EXCLUSIVE
JURISDICTION IN the settlement of the estate of a decedent ?
OROSA NOTES
Rule 73 Sec 1, does not state that the CT with whom the testate or decedents will is filed with said CT., and the publications required
intestate petition is first filed acquires exclusive jurisdiction. Since it by law are made. The heirs could not divest said CT of its already
deals with venue and comity between CTs of equal and coordinate acquired jurisdiction by the mere fact of dividing and distributing
jurisdiction, the CT with whom petition is first filed must also first extrajudicially the estate of the deceased among themselves
take cognizance of the settlement of the estate in order to exercise An extrajudicial partition of the estate of the deceased by the heirs
jurisdiction over it to the exclusion of all other CTs. become a judicial partition after its approval by the CT w/c had
Gesmundo : In one case SC said that this applies only to non- previously acquired jurisdiction of the estate by filing of an
residents; testacy is preferrered over intestacy (see Eusebio vs application for the probate of decedents will. But as the testate
Eusebio) proceeding is terminated in such case w/o the necessary publication
of notices to creditors and other persons interested in the estate
Can CTs with concurrent or coordinate jurisdiction INTERFERE WITH required in regular judicial proceeding the effect of such judicial
EACH OTHER ? partition would be the same as if it had been effected extrajudicially
No. No CT has power to interfere by injunction with the judgment or w/o he intervention of the CT.
decrees of a CT of concurrent or coordinate jurisdiction having equal (Sandoval vs Santiago)
power to grant the relief sought by injunction. Otherwise, there Meaning : if probate of will has already been filed, CT ahs acquired
would be confusion which might seriously hinder the administration jurisdiction, if the heirs will enter into an extra judicial partition :
of justice. a. if there was publication, & extrajudicial partition is submitted to
the CT for approval effect is judicial partition
In the settlement of the estate of a decedent, what is the b. if there is no publication, (& extrajudicial partition is submitted
applicability of the provision conferring concurrent and exclusive to the CT for approval ) effect is extrajudicial partition w/o
jurisdiction ? intervention of the CT
In granting the CT first taking cognizance of the case exclusive
jurisdiction over the same, said provision of the Rules of CT Are judgment orders in special proceedings subject to collateral
evidently refers to cases triable before 2 or more CTs with attack ?
concurrent jurisdiction. It could not have possibly deprive a GR : No.
competent CT of the authority vested therein by law, merely Except : 1. lack of jurisdiction
because a similar case had been previously filed before a CT to w/c 2. there is fraud by the party sought to be
jurisdiction is denied by law, for the same would then be defeated charged with its procurement
by the will of one of the parties. More specifically provision refers The remedy of the aggrieved party is to appeal such order or
mainly to non-resident decedents who have properties in several judgment, or if final to apply for relief under Rule 38, which is
provinces in the Philippines, for the settlement of their respective applicable in special proceedings1.
estates may be undertaken before the CFI of either of one of said
provinces, not only because said CTs then have concurrent 1
RULE 38
jurisdiction and hence the 1 first taking cognizance of the case
RELIEF FROM JUDGMENTS, ORDERS,
shall exclude the other CTs but also, because the statement to this
OR OTHER PROCEEDINGS
effect of Sec 1 Rule 73 pf ROC immediately follows the last part of
the next preceding sentence, w/c deals with non-resident decedents. Section 1. Petition for relief from judgment, order, or other proceedings.
(Eusebio vs Eusebio)
When a judgment or final order is entered, or any other proceeding is thereafter taken against a party
Once the CT assumes jurisdiction, can it be DEPRIVED of the same ? in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in such
No, jurisdiction already vested in a CT may not be divested by the court and in the same case praying that the judgment, order or proceeding be set aside.
act of private individual not by the action of another CT of the same
rank. Sec. 2. Petition for relief from denial of appeal.
The CFI (RTC/MTC) where the deceased was residing at the time of
his death acquires exclusive jurisdiction to settle the testate estate When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud,
of said deceased and over the heirs of other persons interested in accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a
this estate from the moment the application for probate of the petition in such court and in the same case praying that the appeal be given due course.
OROSA NOTES
In the exercise of probate jurisdiction, what matters may the CT
consider ?
Any incident which might arise in connection w/ special proceedings,
such as impugning the validity of a will, or objecting to the
authentication thereof, and all demands and claims filed by an heir,
legatee or party in interest to a testate or intestate succession, shall
be acted upon and decided in the same special proceedings, and not
in a separate action and the judge who has jurisdiction of the
administration of the inheritance, and who, when the time comes,
will be called upon to divide and adjudicate it to the interested
parties, shall take cognizance of all such questions (Benedicto vs
Javellana)
Give EXAMPLES of matters within the jurisdiction of probate CTs ?
Examples :
1. Questions as to WHO ARE THE HEIRS of the decedent
2. Recognition of a natural child
3. VALIDITY OF DISINHERITANCE effected by testator
4. status of a woman of hereditary rights
5. validity of WAIVER OF HEREDITARY RIGHTS
6. matters incidental or collateral to the settlement and
distribution of the estate such s the determination of the status
of each heir
7. WON the property in the inventory IS CONJUGAL OR EXCLUSIVE of
the deceased spouse
Can a probate CT, in AN INTESTATE PROCEEDING ENTERTAIN PETITION FOR
THE PROBATE OF A WILL ?
No ! The probate has no jurisdiction to entertain the petition for the
probate of a will in an intestate estate proceeding. It is not proper to
make a finding in an intestate proceeding that a discovered will has
been revoked. The more appropriate remedy is to initiate a separate
proceeding for the probate of the alleged will in question. (Casiano
vs Maloto)
Can a probate CT adjudicate or determine title or OWNERSHIP TO
PROPERTIES claimed to be part of the estate equally claimed to belong
to outside parties ?
GR : No, probate CT or one in charge of proceedings, testate or
intestate, cannot adjudicate or determine title to properties claimed
to be a part of the estate which are equally claimed to belong to
outside parties.
EXCEPT :
1. determine WON they should be included in the inventory of list
of properties to be administered by the administrator in w/c
case the probate CT may pass PROVISIONALLY as to the title of
the property.
2. when the parties claiming ownership thereto are all heirs of the
deceased, it is optional on them to submit to the probate CT
the question as to title to property (Bernardo vs CA).
The remedy is an ordinary action for final determination of the
conflicting claims of title. (Cuizon vs Ramolete)
SEC 2. Where estate settled upon dissolution of marriage.
When the MARRIAGE IS DISSOLVED
by the DEATH of the husband or wife,
the community property shall be
inventoried,
administered and
liquidated and the debts thereof paid,
in the TESTATE OR INTESTATE PROCEEDINGS of the deceased spouse.
If both spouses have died
the conjugal partnership shall be liquidated in the testate or intestate
proceedings OF EITHER.
When BOTH SPOUSES HAVE DIED, where should the conjugal partnership
be liquidated ?
Act 3176 only amends the former law in the sense that upon the
death of any of the spouses, the community property shall be
liquidated in the testamentary or intestate proceedings of the
deceased spouse. But whatever law may be applicable and even
assuming that it was that prior to Act 3176, the intestate state of
Ramon not having been commenced upon his death until the death
of his widow, Florencia, also died and the testamentary proceedings
of Florencia having been subsequently initiated, wherein among
other things, the liquidation of her conjugal properties with Ramon
should be made, the pendency of these testamentary proceedings
of the deceased wife excludes any other proceeding aimed at the
same purpose. (del Rosario vs Del Rosario)
pag pareho ng patay, regardless of whoever died first, liquidation of
conjugal properties would be made in the testate / intestate
proceeding first filed ??
The conjugal properties of the 1 st marriage shall be liquidated so as
to determine those corresponding to the children with the deceased
1st wife, as her heirs, and those corresponding to the deceased
OROSA NOTES
(husband). Likewise, the conjugal properties of the 2 nd marriage
shall be liquidated, so as to determine the corresponding share of
the surviving widow and the other corresponding to the deceased.
The properties corresponding to the deceased, acquired during his
1st and 2nd marriages constitute his estate which should be
partitioned among his heirs (his children from the 1 st and 2nd
marriages and his widow). (Dolar vs Roman Catholic)
Estate of A = Liquidate conjugal properties of 1st marriage, get
share of A + liquidate conjugal properties of 2nd marriage, get share
of the A
Upon the DEATH OF ONE of the spouses, where should the liquidation
of the conjugal partnership be made ?
in the TESTATE OR INTESTATE PROCEEDINGS of the deceased spouse, or in
the absence thereof, in the proceedings for the settlement of the
estate of the surviving spouse, upon the latters demise.
Must liquidation ALWAYS BE MADE IN A SPECIAL PROCEEDING for the
settlement of the estate of the deceased ?
No. Where there are no debts to pay, the liquidation and partition of
the property of the conjugal partnership, dissolved by the death of
one of the spouses, maybe made in an ordinary action instituted for
that purpose (Cruz vs de Jesus)
The law provides for 2 methods of liquidating the property of
conjugal partnership.
1. testate/intestate proceeding of the deceased spouse
2. ordinary proceeding for liquidation and partition, if there are no
debts to pay
(Liquidation is implied In an action for partition.)
In liquidating the conjugal partnership, what is the BASIS IN MAKING
AN INVENTORY of the conjugal property?
The reckoning point is AT THE TIME OF THE DISSOLUTION of the same;
the death of one of the spouses.
It is erroneous to determine the amount to be divided by adding up
the profits which were made in each year of tits continuance. (de la
Rama vs de la Rama)
Is inventory and liquidation always necessary ?
No. When the interested parties have reached a compromise
whereby for valuable consideration, the widow renounced in favor of
the children all her interest and rights in the estate of the deceased
as well as her participation in the conjugal partnership, it is no
longer necessary to prepare an inventory of the conjugal properties
and make liquidation. (Villacorte vs Mariano)
Upon dissolution of the conjugal partnership by reason of the death
of 1 spouse, from whom may conjugal debts be recovered?
The action must be brought in the testamentary/intestate
proceeding of the deceased in the manner provided by law.
No complaint can be brought against the husband in as ordinary
action for the recovery of the debt chargeable against the conjugal
property since he had ceased to be the administrator of the conjugal
property with his wife upon the latters demise. (Calma vs Toledo)
Does the husband have authority to enter into an agreement for the
repurchase of a conjugal property after the death of his wife but
before liquidation and partition ?
No, In the case of Ocampo vs Potentiano, SC held that the surviving
spouse has no authority as de facto administrator of the conjugal
estate. The ROC provides that when marriage is dissolved by the
death of either husband or wife the partnership affairs must be
liquidated in the testate/intestate proceeding of the deceased
spouse.
Moreover, facts of the case showed that there is ground to believe
that the arrangement in question was a mere extension of time for
the payment of mortgage debt, thus, ownership of the property
never passed to the creditors.
What is the basis of appraisal of real property ?
The MARKET VALUE or in default thereof, the assessed valued at the
time of the liquidation. NOT the purchase value.
Who determines the sufficiency of the evidence of the value of the
conjugal property ?
The admission in evidence w/o objection, of the inventory
purporting to set forth the amount and value of the certain property
DOES NOT BIND THE CT, NOT CONCLUSIVE, to accept as true the contents
of such inventory in a case wherein the amount and value of the
property in question is at issue and where other evidence as to its
amount and the value is submitted. (de la Rama vs de la Rama)
When can CLAIM FOR SEGREGATION of a spouses separate property be
made ?
When the wifes own property or that brought by her to the
marriage of the nature of paraphernal has been included among the
property of the conjugal partnership, a claim or demand for its
segregation on the part of its legitimate owner can only be made
AFTER THE MAKING OF THE INVENTORY OF THE PROPERTY WHICH FORMS PART
OF THE ASSETS OF THE PARTNERSHIP dissolved by the death of the
husband.
OROSA NOTES
If it be not conclusively proven that certain property is paraphernal,
or that it belongs exclusively to a widow, the same must be deemed
to be conjugal property and liable for the debts and obligations of
the partnership. (Fulgencio vs Gachalian)
SEC 3. Process.
In the exercise of probate jurisdiction,
CFI may ISSUE WARRANTS and process necessary
1. to COMPEL THE ATTENDANCE of witnesses or
2. to CARRY INTO EFFECT their orders and judgments, and all other
powers granted them by law.
If a person DOES NOT PERFORM AN ORDER of judgment
rendered by a CT in the exercise of probate jurisdiction, it may
ISSUE A WARRANT for the apprehension and imprisonment of such person
until he
1. performs such order or judgment, or
2. is released.
Can probate CTs issue writs of execution ?
GR : No. The CTs orders usually refer to the adjudication of claims
against the estate w/c the EXECUTOR OR ADMINISTRATOR MAY SATISFY
w/o need of executory process.
EXCEPT :
1. to satisfy CONTRIBUTIVE SHARES of the H/L/D in the possession of
the decedents assets (Rule 88, Sec 6)
2. to enforce PAYMENT OF THE EXPENSES OF PARTITION (Rule 90, Sec 3)
3. to satisfy the CTs when a person is CITED FOR EXAMINATION in
probate proceedings (Rule 142, Sec 13)
SEC 4. Presumption of death.
For purposes of settlement of his estate,
a person shall presumed dead if absent and unheard from
for the periods fixed in the Civil Code.
But if such person proves to be alive,
he shall be entitled to the balance of his estate
after payment of all his debts.
The balance may be recovered by motion in the same proceeding.
When does presumption of death arise ?
GR : after absence of 7 yrs, it being unknown WON the absentee
still lives
EXCEPT for the purpose of SUCCESSION, in w/c case 10 yrs after the
absence
Exception to the exception :
1. if he disappeared > 75 yrs old 5 yrs 2
2. on board a vessel lost during a sea voyage
OR an aeroplane w/c is missing 4 yrs not heard from since
the loss of the vessel or aeroplane
3. in the armed forces who has taken part in war and has been
missing for 4 yrs
4. in danger of dearth under other circumstances and his
existence has not been known for 4 yr 3s
(1, for succession purpose only, 2-4 all purposes)
What happens if the absentee appears, or w/o appearing his
existence is proved ?
Art 392, provides that he shall
1. recover
a. his property in the condition in w/c it may be found
b. the price of any property that may have been alienated or
the property acquired therewith
2. but he cannot claim either fruits or rents.
When may JUDICIAL DECLARATION OF PRESUMPTION of death be had ?
No, it is not authorized by law. While it is true that a special
proceedings is an application of proceeding to establish the status or
the right or a party or a particular fact that remedy can be invoked
in the purpose is to seek the declaration of death the husband, and
not as in the present case, to establish the presumption of death. If
such declaration cannot be made in special proceeding much less
can the Ct determine the status of the widow since this matter must
2
Art 390
3
Art 391
OROSA NOTES
necessarily depend upon the fact of death of the husband.
Matalinong misis !!(Lukban vs Republic)

What is the rationale behind the presumption of death ?

The presumption is an arbitrary one rendered on the grounds of
PUBLIC POLICY in order that RIGHTS DEPENDING ON THE LIFE OF 1 LONG
ABSENT AND UNHEARD OF MAY BE SETTLED. It is based on the general
accepted fact that a normal person will not, if alive, remain away
from home for 7 yrs w/o communicating with family or friends.

At what time does the PERIOD START TO RUN ?

The period must elapse in order to give rise to the presumption of
death and runs from the time when the absent person is LAST KNOWN
TO HAVE BEEN ALIVE.
OROSA NOTES
RULE 74
SUMMARY SETTLEMENT OF ESTATES
SEC 1. Extrajudicial settlement by agreement between heirs.
IF THE DECEDENT
1. left NO WILL and
2. NO DEBTS and
3. the heirs are ALL of age,
or the minors are represented by their judicial or legal
representatives DULY AUTHORIZED FOR THE PURPOSE,
the parties may, without securing letters of administration,
1. divide the estate among themselves as they see fit
by means of a PUBLIC INSTRUMENT
filed in the office of the Register of Deeds and
2. should they disagree, they may do so in an ORDINARY ACTION OF
PARTITION.
If there is ONLY ONE HEIR,
he may ADJUDICATE TO HIMSELF the entire estate
by means of an AFFIDAVIT
filed in the office of the Register of Deeds.
The parties to an EXTRAJUDICIAL SETTLEMENT whether
by public instrument or
by stipulation in a pending action for partition, or
the sole heir who adjudicate the entire estate to
himself by means of an affidavit
SHALL FILE,
simultaneously with and as a condition precedent to
the filing of the public instrument, or
of the affidavit in the office of the ROD;
a BOND with the said Register of Deeds,
in an amount EQUIVALENT to the value
of the personal property involved
as certified under oath by the parties concerned and
conditioned upon the PAYMENT OF ANY JUST CLAIM that may be
under Sec 4 of this rule.
It shall be presumed that the decedent left no debts
if no creditor files a petition for letters of administration
w/in 2 yrs after the death of the decedent.
The fact of Extrajudicial settlement or administration
shall be published in a newspaper of general circulation
in the manner provided in the next succeeding section;
but no extrajudicial settlement shall be binding upon any person
1. who has not participated therein or
2. had no notice thereof.
What are the different modes of settlement intestate ?
They are :
1. intestate proceedings
2. extrajudicial settlement of the estate by agreement among the
heirs
3. sole adjudication by means of affidavit
4. summary settlement of an estate of small value
5. ordinary action for partition
What are the requisites of a valid extrajudicial settlement ?
1. The decedent died intestate
2. There are No outstanding Debts of the estate at the time of the
settlement (meaning if there are debts at the time of death of
the decedent, they have already been paid)
3. The heirs are all of age, or the minors are represented by their
judicial guardians or legal representatives
4. The settlement is made in a public instrument, stipulations or
affidavit duly filed with the ROD
5. The fact of such extrajudicial settlement must be published in a
newspaper of gen circulation in the province once a week for 3
consecutive weeks
6. Bond is required when personal property is involved (wrt real
property note that it is subject to a lien and a bond cannot
substitute such lien)
7. no opposition
A, the decedent left 2 heirs, X and Y and creditor B. What happens
if X and Y pay B ?
This means that the estate of A is now Free from liability and X and
Y can validly enter into an extrajudicial settlement.
Suppose only Y pays B. Can the heirs proceed into a valid
filed extrajudicial settlement ?
Yes, in this case there is only a substitution of creditor. The parties
may now enter into an extrajudicial settlement but Y will be entitled
to reimbursement. This will prevent administration of the estate or
the unnecessary prologation of the proceedings.
May the heirs enter into an extrajudicial settlement when the
deceased left a will ?
No !! The rules specifically provides that it may only be resorted to
IF THE DECEDENT LEFT NO WILL.
OROSA NOTES
The law enjoins the probate of the will and public policy requires it,
because unless the will is probated and notice thereof given to the
whole world, the right of the person to dispose of his property by
will may be rendered nugatory. Absent legatees and devisees or
such of them as may have no knowledge of the will, could be
cheated of their inheritance thru collusion of some of the heirs who
might agree to the partition of the estate among themselves to the
exclusion of others.
Rule 74 Sec 1 provides that the parties MAY divide the estate
among themselves as they seem fit by means of a public instrument
filed in the office of the ROD and if there is only 1 heir, he MAY
adjudicate to himself the entire estate by means of an affidavit filed
with the office of the ROD But as in all K required by law to be in
writing, PARTIAL EXECUTION of an oral K removes the same from the
operation of the Statute of Frauds (example, delivery, possession
coupled w/ exercise of ownership).

Distinguish EXTRAJUDICIAL settlement FROM SUMMARY SETTLEMENT of Why is filing of BOND required ?
estates. In case of personal property, the same can be easily disposed of,
concealed or removed. Such bond is meant for the protection of the
EXTRAJUDICIAL SUMMARY heir who may be unlawfully deprived and shall answer for any claim
SETTLEMENT SETTLEMENT w/c may arise subsequent to the extrajudicial settlement.
CT INTERVENTION None there is
VALUE IMMATERIAL <=10,000 Why is it required that the parties concerned file an affidavit wherein
they certify under oath the value of the personal property ?
APPLIES TO only in BOTH
To enable the ROD to determine the sufficiency of the bond.
TESTATE/INTESTAT INTESTATE intestate /
E testate
What is meant by an ORDINARY ACTION FOR PARTITION?
EXISTENCE OF only if there even if there
An ordinary action for partition is filed by persons who are co-
DEBTS is NONE exists debts,
owners of a certain property. Remember that each co-owner may
as the CT will
demand at any time the partition of the thing owned in common,
make
insofar as his share is concerned.
provisions for
payment
Are the HEIRS COMPELLED by the Rules to enter into an extrajudicial
therof
settlement if all the requisites are present ?
INSTITUTED only at the BY ANY
No, it is not mandatory. The rules use the word MAY. (inulit ulit ulit
INSTANCE AND INTERESTED
ni sir !)
BY AGREEMENT PARTY, even
OF ALL heirs by creditor
What is the effect of the extrajudicial partition ?
w/o consent

of all heirs
1. final settlement of the estate
2. binding and conclusive to parties
Except : a. not participated
What is the PURPOSE of the requirement that the extrajudicial
b. no notice thereof
partition be put in the PUBLIC INSTRUMENT OR AFFIDAVIT and REGISTERED
3. no judicial settlement can be had
with the Register of Deeds ?
To serve as constructive notice and this means notice to others. The
Who are these UNLAWFULLY DEPRIVED OF PARTICIPATION ?
purpose is to inform 3P of the fact of partition. Such 3P will be put
those who participated but unlawfully deprived of lawful share.
on notice that the property he is buying is s.t. encumbrance of 2
Ex : the eldest child said the value of the estate of the father is P2
yrs. (see Sec 4)
M. So the other children, B and C, agreed to the partitioning of the
Note that requirement of registration is accomplished by making
estate. But in truth, the value of the estate is P20 M. ewan lang bat
entry in the daybook of the ROD.
sila pumayag ha but B and C are unlawfully deprived of
If real property is involved annotation is needed
participation
Is it permissible to have an ORAL PARTITION ?
OROSA NOTES
What can be done if it is later shown that there are persons
unlawfully deprived of participation ? Does this nullify the
extrajudicial settlement ?
No, you can satisfy the claim to prevent the reopening.
Actually, If the estate is extrajudicially settled the person
prejudiced may compel judicial settlement of the estate.
But the distributes may prevent this by :
1. agreeing on another extrajudicial partition where the prejudiced
person will be a party;
2. the prejudiced party is an heir and agrees to be paid in money
and the distributes contribute and pay him
3. if the prejudiced party is a creditor, distributes agree to pay
him and is paid
What is SUMMARY SETTLEMENT ?
Must there be an administrator of the estate ?
GR: Yes, whether decedent died testate or intestate.
Except : 1. extrajudicial settlement
2. summary settlement
where each heir may administer on his own.
Is the rule subject to any exceptions?
Yes, the two exceptions are
a. when extrajudicial settlement is proper (Sec. 1 Rule 74)
b. summary settlement of estate of small value (Sec 2 Rule 74)
(Utulo vs. Vda. De Garcia)
Is the requirement that the settlement should be made in a PUBLIC
INSTRUMENT NECESSARY for the validity of the extrajudicial partition?
On general principle independent and in spite of the statute of
frauds, courts of equity have enforced oral partition when it has
been completely or partly performed. Section 1 of Rule 74 contains
express or clear declaration that the public instrument therein
required is to be constitutive of a contract of partition or an inherent
element of its effectiveness as between the parties. The
requirement that a partition must be put in a public instrument and
registered has for its purpose the protection of creditors, at the
same time the protection of the heirs themselves against tardy
claims. Note that the last sentence of the section speaks of debts
and creditors. The object of registration is to serve as constructive
notice and this means notice to others. It must follow that the
intrinsic validity of the partition not executed in the prescribed
formalities does not come into play when there are no creditors or
the rights of the creditors are not affected. No rights of creditors
being involved, it is competent for the heirs of an estate to enter
into an agreement for distribution in a manner and upon a plan
different from those provided by law. (Hernandez vs. Andal)
What is the effect of the EXISTENCE OF DEBTS?
It is only when debts exist and there is no way of collecting them
extrajudicially because the creditors have not reached an amicable
settlement with the heirs, that they can compel the filing of special
proceedings before the court for the liquidation of said debts.
However, while the rule provides that the decedent must not have left
any debts, it is sufficient if any debts that may have been left have
been paid at the time the extrajudicial settlement is entered into.
The subsequent bare allegation that the estate has an existing debt
from third persons without specifying the creditor and other details in
regard thereto cant be considered a concise statement to constitute a
cause of action nor does the unverified statement that there are other
properties not included in the deed of extrajudicial partition, in the
possession of one of the heirs, justify the institution of administration
proceedings, because such questions can be litigated in an ordinary
action for partition. (Torres vs. Torres)
If the estate had NO DEBTS OR OBLIGATION, are they precluded from
instituting administration proceedings?
Section 1 Rule 74 does not preclude the heirs from instituting
administration proceedings even if the estate has no debts or
obligation, if they do not desire to resort for good reasons to an
ordinary action for partition. While Section 1 allows the heirs to
divide the estate among themselves as they may see fit, or to resort
to an ordinary action for partition, it does not compel them to do so
if they have good reasons to take a different course of action. Said
section is NOT MANDATORY or compulsory as may be gleaned from
the use of the word may. If the intention were otherwise, the
framer of the rule would have employed the word shall as was
done in other provisions that are mandatory in character.. Note that
the word may is used not only once but in the whole section which
indicates an intention to leave the matter entirely to the discretion
of the heirs. (Arcillas vs. Montejo)
*But is so far as heirs are concerned, it is mandatory if;
a) majority chooses extrajudicial
b) it unnecessary
c) it is more costly for the estate to resort to judicial administration.
Is the partition entered into by the parties final?
The division or partition should be considered as a final settlement
of the estate of the deceased, and no administrator can thereafter
be appointed to take charge of and administer the estate. Unless
and until it is shown that there were debts existing against the
estate, which h had not been paid, the division is conclusive. So
much so that even if unpaid debts are later discovered, such
discovery does not destroy the partition made. It simply furnishes
OROSA NOTES
ground for the application by the creditor for the appointment of an
administrator or for the payment of his credit, as provided in Section
4 Rule 74. Further, Section 1 Rule 74 provides that it shall be
presumed that the decedent left no debts if no creditor files a
petition for letters of administration within two years after the death
of the decedent. if with creditors it doesnt nullify extrajudicial
settlement of estate.
What is the remedy of the aggrieved party after an extrajudicial
settlement is approved by the court?
Any aggrieved party has the alternative remedy of filing either a
petition for relief under Rule 38 or a new action to annul the
settlement within the period established by the statute of
limitations. The action to annul a deed of extrajudicial settlement
on the ground of fraud should be filed within four years from
discovery of the fraud.
SEC 2. Summary settlement of estates of small value.
Whenever the gross value of the estate of a deceased person, whether
he died testate or intestate,
does not exceed P10,000 , and
that fact is made to appear to the Court of First Instance having
jurisdiction of the estate by the petition of an interested person and upon
hearing,
which shall be held not less than 1 month nor more than 3 months from
the date of the last publication of a notice which shall be published once
a week for 3 consecutive weeks in a newspaper of general circulation in
the province, and
after such other notice to interested persons as the court may direct, the
court may proceed summarily, without the appointment of an executor or
administrator, and without delay, to grant, if proper, allowance of the
will, if any there be, to determine who are the persons legally entitled to
participate in the estate, and to apportion and divide it among them after
the payment of such debts of the estate as the court shall then find to be
due; and such persons, in their own right, if they are of lawful age and
legal capacity, or by their guardians or trustees legally appointed and
qualified, if otherwise, shall thereupon be entitled to receive and enter
into the possession of the portions of the estate so awarded to them
respectively.
The court shall make such order as may be just respecting the costs of
the proceedings, and all orders and judgments made or rendered in the
course thereof shall be recorded in the office of the clerk, and the order
of partition or award, if it involves real estate, shall be recorded in the
proper register's office.
What is the nature of a summary settlement?
Summary settlement or summary distribution is a procedure, in a
summary manner, the estate of the deceased is valued, his debts, if
any, are paid, his will, if any, is allowed; the heirs and legatees are
declared and distribution is made, all in a single hearing and in a
single order, as far as this is practicable, without the appointment of
any administrator or executor. This is done with the least possible
delay though not necessarily in one hearing.
What are the requisites for a valid summary settlement of an estate
of small value?
The requisite for a valid summary settlement of estate of small
value are:
1) the gross value of the estate of a deceased person does not
exceed ten thousand pesos
2) that there are no existing debts
3) that a bond has been duly filed, and
4) that a proper hearing is held
When is summary settlement proper?
Summary settlement may be resorted to regardless of whether the
deceased person died testate or intestate as long as the gross value
of his estate does not exceed ten thousand pesos.
Where is the petition for summary settlement of an estate of small
value filed?
BP 129 has conferred exclusive jurisdiction in the inferior courts ie.,
The Metropolitan, Municipal, or Municipal Circuit Trial Courts, in all
matters of probate, both testate and intestate, where the gross
value of the estate does not exceed P20,000 (Sec 19(4), Sec.
33(1)). This has resulted in investing said inferior courts with
exclusive jurisdiction in summary settlement of estates of small
value since the maximum jurisdictional limit on the gross estate
involved in said proceeding is P10, 000. This is notwithstanding the
fact that the Rules of Court, promulgated in 1986, still provides that
it be filed with the RTC. BP 129 enacted in 1980, is a substantive
law which prevails over the Rules of Court, which is procedural in
nature.
What are the STEPS for the summary settlement of estate of small
value?
The following must be done :
1. Determine the gross value of the estate. If the gross value of
the estate is less than ten thousand pesos, file a petition with
the MTC. Determine the venue.
OROSA NOTES
2. A hearing is set to determine the existence of debts. If the What is the REMEDY of a person unduly deprived of his lawful
court finds that there are, it orders the payment of debts; participation in the estate?
3. If the deceased died with a will, it should be presented for The summary distribution of the estate of a deceased person
probate; and ordered by the competent court is final and definitive, unless within
4. Distribute the estate in accordance with the will or the rules on two years after the distribution of the estate it appears that there
intestacy, as the case may be. are outstanding debts or that an heir or another person has been
unduly deprived of his lawful participation from the estate in which
What happens after the court issues an order granting the allowance case, any creditor, heir or interested person may compel the judicial
of the will? distribution and partition of said estate in the ordinary manner.
The distributes in their own right, if they are of age, or by their
guardians or trustees legally appointed and qualified, if otherwise,
shall be entitled to receive and enter into possession of the portions
SECTION 3. Bond to be filed by distributees.
awarded to them.
The CT, before allowing a partition in accordance with the provisions of
Can a claim of ownership of property adverse to that of the
the preceding section,
decedent be adjudicated in a summary settlement?
may require the distributees,
No, the policy of the law is to terminate the proceedings for the
if property OTHER THAN REAL is to be distributed,
settlement of the estate of the deceased persons the least loss of
to file a BOND in an amount to be FIXED BY COURT,
time. This is especially true with small estates for which the rules
conditioned for the payment of any just claim which may be filed
provide precisely a summary procedure dispensing with the
under the next succeeding section.
appointment of an administrator together with the other involved
and cumbersome steps ordinarily ordinarily required in the
determination of the assets of the deceased and the persons entitled
Compare the bond required to be filed under Sec. 1 of the rule for
to inherit therefrom and the payment of his obligations.
extrajudicial settlement with the bond required under this section for
Definitely, the probate court is not the best forum for the resolution
summary settlement.
of the adverse claims of ownership of any property ostensibly
The amount of the bond to be filed by the distributes of personal
belonging to the decedent estate. While there are settled
property in summary settlement proceedings is determined by the
exceptions to this rule as applied to regular administration
court unlike that in extrajudicial settlement where the amount of the
proceedings, it is not proper to delay the summary settlement of a
bond is equal to the value of the personal property as established by
deceased person just because an heir or a third person claims that
the instrument of adjudication. But in both cases, the bond cant
certain properties do not belong to the estate but to him. Such
replace the lien on real property.
claim must be ventilated in an INDEPENDENT ACTION and the
probate court should proceed with the distribution of the estate if
When is bond required under Sec 3 Rule 74?
there are no legal obstacles to it, for after all, such distribution must
Although this section requires the filing of a bond in connection with
always be subject to the results of the suit. For the protection of
summary administration and distribution of estate of a decedent,
the claimant, the appropriate step is to have the proper annotation
the same may be requires only where personal property is
of his lis pendens entered. (Ermac vs. Medelo)
distributed and not where realty is the subject of partition.
What happens if no appeal is taken from the order of the summary
settlement?
Where NO APPEAL is taken from the order of the summary settlement
which declares the sdispositions in the will, in so far as the shares of Why is a bond required for personalty and not for realty?
the heirs, devisees and legatees are concerned are in accordance No bond is necessary when only real estate is involved, for the lien
with law, it will no longer be disturbed if there is no showing that as recorded is a sufficient security for any claim which may be filed
procedural requirements laid down in Sec 2 Rule 74 have not been under Sec. 4 Rule 74
followed.
OROSA NOTES
The lien established in Section 4 Rule 74 of the Old Revised Rules of
Court in case of summary settlement of a decedents estate, is
effective only for a period of two years. After the two year period,
SEC 4. Liability of distributees and estate.
such lien becomes functus officio and it may be cancelled at the
instance of the transferee of the land involved. (Carreon vs.
If it shall appear at any time within 2 years after the settlement and
Agcaoili)
distribution of an estate in accordance with the provisions of either of the
first two sections of this rule, that an heir or other person has BEEN
When is the two year effectivity period of the lien RECKONED?
UNDULY DEPRIVED OF HIS LAWFUL PARTICIPATION IN THE ESTATE,
It is reckoned from the date and time inscribed is placed.
such heir or such other person may COMPEL THE SETTLEMENT of the estate in
the courts in the manner hereinafter provided for the purpose of
Must you go to court to have the annotation in the certificate of title
satisfying such lawful participation.
canceled after the lapse of two years?
No, the lien annotated therein becomes functus officio that is
And if within the same time of 2 years, it shall appear that
already performed function. (Carreon vs. Agcaoili)
1. there are debts outstanding against the estate which have not been
paid, or
MAY THE LIEN BE substituted by a bond?
2. that an heir or other person has been unduly deprived of his lawful
Such lien cant be discharged nor the annotation canceled within the
participation payable in money,
two year period even if the distributes offer to post a bond to
answer for the contingent claims for which the lien is established.
the CT having jurisdiction of the estate
1. may by order for that purpose, after hearing settle the amount of
What is the REMEDY IF FRAUD is alleged?
such debts or lawful participation and order how much and in what
If the annulment of a deed of extrajudicial settlement is sought on
manner each distributee shall contribute in the payment thereof,
the ground of fraud in the execution thereof, the action may be filed
and
within 4 years from the discovery of the fraud. Such discovery is
2. may issue execution, if circumstances require, against the bond
deemed to have taken place when the instrument was filed with the
provided in the preceding section or against the real estate
register of deeds and new certificates of title were issued, for such
belonging to the deceased or
registration constitutes constructive notice to the whole world.
3. both.
What is the effect of the DISCOVERY OF UNPAID DEBTS after the
Such bond and such real estate shall remain CHARGED WITH A LIABILITY to
extrajudicial settlement has been effected?
creditors, heirs, or other persons for the full period of 2 years AFTER SUCH
The partition provided for in these sections is binding and valid even
DISTRIBUTION,
though not all of the debts actually outstanding were paid before the
NOTWITHSTANDING ANY TRANSFERS of real estate that may have been made.
partition was made. The discovery of the unpaid obligation after
partition does not destroy the partition. It simply furnishes ground
What is the RATIONALE behind the rule that the property shall be
for the application of the creditor for the appointment of an
subject to an encumbrance of 2 years?
administrator. (McMicking vs. Sy Conbieng)
2 years is believed to be a reasonable time for creditors and other
interested parties to be on notice of the extrajudicial settlement.
Is administration the ONLY remedy?
Must A LIEN BE ANNOTATED in the certificate of title?
Even after the discovery of a debt subsequent to partition, the
Yes. The lien must be annotated in the certificate of title for the
partitioning persons may prevent any administration whatever by
protection of unpaid creditors and heirs unlawfully deprived of their
paying the debt discovered, thereby preserving the partition intact
participation. Otherwise a purchaser in good faith of the property
in all its parts. (McMicking vs. Sy Conbieng)
may defeat the lien constituted for their protection.
What is the effect of an extrajudicial partition after an administrator
What is the effect of the lien created by this section in favor of
had already been appointed?
unpaid creditors or heirs unduly deprived of their lawful
participation?
OROSA NOTES
Where after the appointment of an administrator, the due making of Partition entered between parties are conclusive, not even debts later
the inventory of the property and the taking possession thereof by discovered will annul such partition. However it shall be a ground for
such administrator, and agreement is made between the owners appointment of administrator and/or payment of debt
thereof, the delivery of the property to such partitioning owners by
such administrator, under proper proceedings and order of court and
after compliance with the provisions of such sections, is in effect, a
discharge of such administrator as to all future obligations and
responsibilities in relation to said property.(McMicking vs. Sy
Conbieng)

What is the EFFECT OF THE REOPENING of the partition upon discovery of

unpaid debts?
While at any time within the two years after such partition the
property or a portion thereof, then in possession of the partitioning
parties, may be placed in administration in the event of the
discovery of unpaid debts, it would not be the same estate
represented by the prior administrator, and he would not be the
administrator of the new estate by virtue of his appointment in the
old. It would be necessary to appoint upon proper application and
notice, another administrator for the purposes set forth in said
sections. (McMicking vs. Sy Conbieng)

SEC 5. Period for claim of minor or incapacitated person.

If ON THE DATE OF THE EXPIRATION of the period of 2 years prescribed in the
preceding section
the person authorized to file a claim is a
minor or
mentally incapacitated, or
is in prison or
outside the Philippines,
he may present his claim within 1 YEAR AFTER SUCH DISABILITY IS
REMOVED.

What does section 5 provide?

GR : unpaid creditors and heirs unlawfully deprived of their
participation in the estate have two years within which to file a claim
against the estate

EXCEPT: A minor or mentally incapacitated person or one outside the Phil.

May still file a claim within 1 year after the disability is removed.

Provided: the disability existed during the two-year period and disability
exists at the expiration of the two-year period.
OROSA NOTES
Rule 75 4. Conclusive as to due execution and testamentary capacity
Production of Will. Allowance of Will Necessary 5. Prima Facie evidence of death

What SORT OF instruments must be probated?

SEC 1. Allowance necessary. Conclusive as to execution . All instruments of a testamentary character must be probated in
No will shall pass order to become operative to transfer title to either real or personal
either real or personal estate property.
unless it is PROVED AND ALLOWED in the proper court. So an instrument which neither disposes of property nor appoints an
Subject to the right of APPEAl, executor is not testamentary in character and consequently, is not
such allowance of the will shall be CONCLUSIVE AS TO ITS DUE EXECUTION. entitled to probate, although it be executed with all the formalities
required by law.
An instrument which makes no disposition of property but appoints
and executor is entitled to probate.
What is the meaning of PROBATE OF A WILL?
A codicil should be probated although it contains nothing but the
It is a judicial act whereby an instrument is adjudged valid and is
revocation of a former will. The revoked will, however, cant be
ordered to be recorded. It is the statutory method of establishing
probated.
the proper execution of the instrument and giving notice of its
contents.
When must a will be presented for probate?
Under Sec. 1 Rule 76, a will may be probated:
What is the PURPOSE of probate?
1. at a reasonable time after the death of the testator
To establish conclusively as against everyone once and for all, the
2. during the lifetime of the testator, upon petition by him to the
fact that will was duly executed with the formalities required by law
court having jurisdiction for the allowance of his will.
and that the testator was in a condition to make a will.
What is the extent of the courts jurisdiction in the probate of a will?
What does DUE EXECUTION refer to?
A probate decree finally and definitely settles all questions
Due execution means that:
concerning capacity of the testator and the proper execution and
1. the formalities of the law has been complied with
witnessing of his last will and testament irrespective of whether its
2. the capacity of the testator has been established (ie. He was of
provisions are valid and enforceable or otherwise. As such the
sound mind and did not act under fraud, duress, intimidation
probate order is final and appealable; and it is so recognized by
etc.)
express provisions of Sec 1 Rule 109, that specifically prescribes
3. the will is genuine
that any interested person may appeal in special proceedings from
*Note that the conclusiveness of such matters only refers to the
an order or judgment xxx where such order of judgment (a) allows
extrinsic validity of a will. The intrinsic validity of a will is governed
or disallows a will. (Fernandez vs. Dimagiba)
by the law on legitimes.
Must you present the original copy of the will upon filing for
What is the NATURE of the probate of a will?
probate ?
The probate of a will in this jurisdiction is a proceeding in rem.
See Rule 76, Sec 1. But in, jurisprudence has it that a copy thereof
The provision of notice by publication as a prerequisite to the
may be attached in lieu of the original, provided that the original is
allowance of a will is constructive notice to the whole world, and
presented during the proceeding. Ginagawa toh ng mga lawyers,
when probate is granted, the judgment of the court is binding upon
kasi pag finile nila ang original with the petition nawawala later !!!!
everybody, even against the State.

What is the EFFECT OF THE ALLOWANCE of a will?

The probate of a will by the probate court having jurisdiction thereof
is usually considered as conclusive as to its due execution and
1. Mandatory
validity and is conclusive that the testator was of sound and
2. Imprescriptible
disposing mind at the time he executed the will, and was not acting
3. In rem
OROSA NOTES
under duress, menace, fraud or undue influence and that the will is
genuine and not a forgery. It cant be impugned on any grounds
authorized by law, except that of fraud, in any separate or
independent action or proceeding. Hence criminal action will not lie
in this jurisdiction against the forger of a will which had been duly
admitted to probate by a court of competent jurisdiction since it is
clear that a duly probated will cant be declared a forgery without
disturbing in a way the decree allowing said will to probate.
The allowance of a will creates a conclusive presumption as to its
due execution and validity. Conclusive presumptions are inferences
which the law makes so peremptory that will not allow them to be
overturned by any contrary proof however strong. The will having
been duly probated, the law will not admit any proof to overthrow
the legal presumption that it is genuine and not a forgery.
(Mercado vs. Santos)
Does the probate court have jurisdiction to inquire into the INTRINSIC
VALIDITY of the will?
In the petitions for probate, the Courts area of inquiry is limited to
the extrinsic validity of the will, as the testamentary capacity and
compliance with formal requisites or solemnities prescribed by law
are the only questions presented for the resolution of the court. Any
inquiry into the intrinsic validity or efficacy of the provisions thereof
or the legality of any devise or legacy is premature. (Sumilang vs.
Ramagosa)
Is the probate court ABSOLUTELY PRECLUDED from passing upon the
intrinsic validity of the will?
NO, in an extreme case where the provisions of the will are of
dubious legality, the probate court can pass upon the intrinsic
validity of the will; otherwise, probate may become an idle
ceremony. (Balanay vs. Martinez)
Can the probate court pass upon questions of ownership with
respect to properties allegedly forming part of the estate?
In a special proceeding for probate of a will, the issue by and large
is restricted to the extrinsic validity of the will, whether the testator,
being of unsound mind, freely executed the will in accordance with
the formalities prescribed by law. AS a rule, the question of
ownership is an extraneous matter which the probate court cant
resolve with finality.
Thus, for the purpose of determining whether a certain property
should or should not be included in the inventory of estate
properties, the probate court may pass upon the title thereto but
such determination is provisional, not conclusive and is subject to
the final decision in a separate action to resolve title. (Pastor Jr. vs.
CA)
SEC 2. Custodian of will to deliver.
The person who has custody of a will shall,
within 20 days after he knows of the death of the testator
deliver the will to the court having jurisdiction, or to the executor named
in the will.
Who is a CUSTODIAN?
In order to hold one liable as a custodian of a will under a rule which
requires the production of a will by the person having it in custody,
it must be shown that he received the will into his custody with
knowledge, or under such circumstance that he ought to have
known that he was receiving custody of a will.
By accepting the custody of the will of another, a person does not
obligate himself to exercise diligence to discover the death of the
testator, so as to disclose possession of the will and to produce it for
probate within a reasonable time after such death, unless he agreed
to perform such obligation or else made representation that he was
well-equipped to obtain information as to the death of the maker of
the will in his custody.
Suppose X works as a secretary of his father. One day, he sees his
fathers will on the floor. X takes the will and keeps it on his table.
X is a custodian of his fathers will?
No, MERE POSSESSION OF A WILL DOES NOT constitute custody of the
instrument within the meaning of this rule.
A custodian is a person chosen in advance and entrusted with the
custody of a will.
One becomes a custodian by agreement between the testator and
the person whom the will is entrusted.
What is the NATURE OF SUCH AGREEMENT between the testator and the
custodian?
The delivery and acceptance of the custody of the will for
safekeeping constitutes BAILMENT which terminates on the death of
the testator or bailor. One accepting custody of a will for
safekeeping accepts the responsibilities of such custodianship TO
PRESERVE the will safely for the testator until his death and NOT TO
REVEAL its contents, or RETURN IT to its maker on demand.
What is the duty of a custodian of a will?
To deliver the same within 20 days after he knows of the death of
the testator to the court having jurisdiction or to the executor
named in the will. A violation of this duty is made punishable by
Sec. 4 Rule 75.
OROSA NOTES
To whom is the delivery of the will made?
To the Clerk of the RTC having jurisdiction over the estate or to the
executor named in the will.
What if the custodian is the executor named in the will, does he still
have to produce the will?
Yes, the rule making it the duty of the custodian to deliver a will to
the court after the death of the testator is designed to exact the
discovery of wills and to discourage their concealment. Thus, the
custodian of a will must comply with the statute even though he is
named as the executor.
Suppose the custodian refuses or fails to deliver the will within the
reglementary period?
Under Sec. 2 and 3 of this rule, the fact that a will is not presented
to the court after the 20 day period specified therein does not
prevent it from being probated. On the contrary, Rule 76 Section 1
provides that any executor, devisee, legatee named in a will, or
any other person interested in the estate may, at any time after the
death of the testator, petition the court having jurisdiction to have
the will allowed, whether the same be in his possession or not, or is
lost or destroyed. In such a case, probate will proceed through
secondary evidence.
Is probate of a will mandatory?
Yes, the presentation of the will for probate is mandatory. This is so
because unless the will is probated and notice thereof be given to
the whole world the right of a person to dispose of his property by
will may be rendered nugatory. Absent legatees and devisees or
such of them as may have no knowledge of the will could be
cheated of their inheritance through the collusion of some of the
heirs who might agree to partition the estate among themselves to
the exclusion of others.
Even if the decedent left no debts and nobody raises any questions
as to the authenticity and due execution of the will, none of the
heirs may sue for the partition of the estate in accordance with a will
without first securing its allowance or probate by the court, first,
because the law expressly provides that no will shall pass either
real or personal estates unless it is proved and allowed in the proper
court, and second, because the probate of a will which is a
proceeding in rem, cant be dispensed with and substituted by any
other proceeding, judicial or extrajudicial.
Can probate proceedings be barred by the Statute of Limitations or
estoppel by laches?
Statute of Limitations doesnt apply because probate proceedings
are established not exclusively in the interest of the heirs but for the
protection of the testators expressed wishes; which are entitled to
respect as a consequence of his ownership and rights of disposition.
Inasmuch as the probate of a will is required by public policy, the
State could not have intended to defeat the same by applying
thereto the statute of limitations.
SEC 3. Executor to present will and accept or refuse trust.
A person named as EXECUTOR in a will shall,
within 20 days after he knows of the death of the testator, or within 20
days after he knows that he is named executor
if he obtained such knowledge after the death of the testator
PRESENT such will to the court having jurisdiction
unless the will has reached the court in any other manner, and shall,
within such period,
signify to the court in WRITING
his acceptance of the trust or
his refusal to accept it.
What is the DUTY of the executor?
When a will has been duly executed and delivered to the one named
as executor therein, a moral obligation in the nature of a trust is
imposed upon such person. It is a moral duty because it is more of
a personal obligation.
SEC 4. Custodian and executor subject to fine for neglect . - A
person who neglects any of the duties required in the two last preceding
sections without excuse satisfactory to the court shall be fined not
exceeding P2,000.
When can the fine provided for in this section be imposed?
The act penalized in this section is a special statutory offense which
must be prosecuted upon complaint or information as other criminal
offenses created by law. (US vs. Chiu Guimco)
MERE POSSESSION of a will does not constitute custody of the
instrument within the meaning of these rules. In order to hold liable
one as custodian for failure to produce a will after the decedents
death, it must be at least shown that there is a bailment.
Sir thinks that Sec. 4 is a usurpation of legislative powers and is not
within judicial powers to impose such sanction.
SEC 5. Person retaining will may be committed.
A person having custody of a will after the death of the testator who
OROSA NOTES
neglects without reasonable cause to deliver the same, WHEN ORDERED SO
TO DO, to the court having jurisdiction, may be committed to prison and
there kept until he delivers the will.

When can the court commit a person to prison for retaining a will?
Note that there should already be a petition for probate.
A court cant make a valid order committing a person to jail for
failure to produce the will of a deceased person pursuant to this
section except when acting in the exercise of its jurisdiction over the
estates of deceased persons.
Note that the remedy provided in Sec 5 is different with that under
Sec. 4, it is not permissible to superimpose upon the penalty of fine
therein prescribed the additional penalty of imprisonment imposed
by Sec. 5.

What provisions ensure delivery ?

Rule 75 Secs 2 and 3.

What are the sanctions ?

Fine and imprisonment

What is the difference between the 2 provisions ?

Yung isa kahit walang order ng CT, fails to deliver fine, yung isa
pag me order ng CT and refuse to deliver the same imprisonment

When is person a custodian for purposes of Sec 4 and 5?

In writing. To be held accountable, the relationship must be in the
nature of bailment !! duty to preserve, present in CT when time
comes for presentation.

What is the difference bet Sec 4 & 5 of Rule 75 ?

Yung isa with pending petition, yung isa no petition for probate yet.
OROSA NOTES
See the rules of court for parties in interest.
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
SEC 1. Who may petition for the allowance of will.
Any executor,
devisee, or
legatee named in a will, or
any other person interested in the estate
may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed
whether the same be in his possession or not,
or is lost or destroyed.
The TESTATOR HIMSELF may, during his lifetime, petition the court for the
allowance of his will.
Who may file a petition for the probate of the will? (DELTA)
1. executor
2. devisee
3. legatee
4. any person interested in the estate
5. the testator himself during his lifetime.
It is immaterial as far as practice is concerned by whom a will is
presented for probate, the only restriction being that before any
person may intervene in the proceedings had for the probate of a
will, he should be required to show an interest in the will or the
property affected thereby either as executor or otherwise. For such
purpose, it is sufficient that he shows or produces prima facie
evidence of his/her relationship to the testator or his rights to the
latters estate.
It should be noted however that the allegation of interest in the
estate merely entitles one to intervene in the probate of the will.
Such claim of interest does not entitle him to his claim.
Who may intervene in the probate of the will?
Essentially, the same persons who can file for the petition for
probate of a will.
Who is an INTERESTED PARTY?
One who would be benefited by the estate such as an heir or one
who has a claim against the estate like a creditor. The interest
acquired in order that a person may be a party thereto must be
material and direct and not merely indirect or contingent. (Teotico
vs. Del Val)
What is the effect of an assignment of interest in the estate upon an
heirs right to petition for probate of a will?
The mere fact that the share, title and the interest of the estate
pertaining to one of the heirs have already been assigned to another
doesnt estop said heir from asking for the probate of a will of the
deceased testator.
When must a will be presented for probate?
It must be presented
1. at anytime after the death of the testator.
2. during the lifetime of the testator
Probate of a will is not subject to bar by limitations.
Only the testator cam file for a petition for probate when it is made
during his lifetime.
Why is the testator allowed to have his will probated during his
lifetime?
In general, probate of a will during the testators lifetime is allowed
so that:
1. fraud may be avoided
2. the testamentary capacity of the testator is easily proved if he
personally appears before the probate court.
3. correction of defects in the formalities of the will is
facilitated.
4. Opposition is minimized.
Can estoppel apply to probate proceeding?
Yes, estoppel may find application in probate proceeding. A
person by his conduct may estop himself and his privies from
subsequently procuring the probate of a will, Long delay in
propounding the will for probate during which delay, the
property of the estate might have been transferred to
subsequent purchasers for value and without notice of the will
maybe taken as an estoppel to apply for probate of the will.
But to raise estoppel on the ground of delay in propounding the
will, it must be shown that no obstacle to the assertion of the
right to have the will probated existed.
Who are referred to as creditors? What is the nature of the claim ?
Contingent claim. See Rule 3 Sec 20. Contingent on the outcome of
the case
If the party who filed petition for probate has NO INTEREST, would this
invalidate the proceedings ?
No. If contested the CT must rule. If not contested ok lang
OROSA NOTES
SEC 2. Contents of petition.
A petition for the allowance of a will must show, so far as known to the
petitioner: (JuNProLeCu)
a. The jurisdictional facts;
b. The names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent;
c. The probable value and character of the property of the estate;
d. The name of the person for whom letters are prayed;
e. If the will has not been delivered to the court, the name of the
person having custody of it.
But NO DEFECT IN THE PETITION SHALL RENDER VOID the allowance of the will,
or the issuance of letters testamentary or of administration with the will
annexed.
What must be stated in the petition for allowance of a will?
The Following
1. the jurisdictional facts
2. the names, ages and residences of the heirs, legatees, devisees
of the testator or decedent
3. the probate value and character or the property of the estate
4. the name of the person for whom the letters are prayed; and
5. the name of the person having custody of the will, if such has
not yet been delivered to the court.
What are the JURISDICTIONAL FACTS necessary in order for the RTC to
acquire jurisdiction to probate a will?
The following are jurisdictional facts w/c must be proved :
1. that a person died leaving a will
2. in the case of a resident, that at the time of his death, he was a
resident within the territorial jurisdiction of the court, or in the
case of a non-resident, that he left an estate within such
territorial jurisdiction. (Fernando vs. Crisostomo)
3. that the will ha been delivered to the court and is in the
possession thereof. (Salazar vs. CFI)
4. the value of the estate so that the proper court with jurisdiction
(whether RTC or MTC) may be determined.
To bring before the court such jurisdictional facts, they should be
made in the form of an application and filed with the original of the
will attached thereto. A mere copy of the will to the application may
be attached without prejudice to producing the original thereof at the
hearing or when the court so requires.
What must a petition for probate of a will show?
The petition must show, so far as known to the petitioner the ff:
1. the fact of the death of the testator indicating the time and place
of such death
2. the fact that the deceased left a will attaching a copy of said will
3. the fact that the will was executed according to law.
4. Whether the person named as executor consents to act as such
or renounce his right to become an executor.
5. The names, ages and residences of the heirs, legatees and
devisees of the decedent.
6. The probate value and character of the property of the estate
7. The name of the person whose appointment as executor is
prayed for
8. If the will has not been delivered to the court, the name of the
person having custody thereof. (Salazar vs. CFI)
Why is it necessary to state the name and residence of each heir or
legatee in the petition for probate?
In order that the persons entitled to notice of the proceedings and
manner of such notice may be determined.
What is the effect of the omission of any of those enumerated in this
section which petition must show?
It doesnt render the order void for want of jurisdiction any more
than the omission from the petition of a statement as to the proper
value and character of the estate.
Would failure to pay docket fees affect jurisdiction of the probate
court?
No, its nonpayment is not jurisdictional. The court may at any time
after the petition is filed ask or require the party concerned to pay
the corresponding docket fees.
OROSA NOTES
SEC 3. Court to appoint time for proving will. Notice thereof to be
published.
When a will is delivered to, or a petition for the allowance of a will is filed
in, the court having jurisdiction,
such court shall
1. fix a time and place for proving the will when all concerned may
appear to contest the allowance thereof, and
2. shall cause notice of such time and place to be published 3 weeks
successively, previous to the time appointed, in a newspaper of
general circulation in the province.
But no newspaper publication shall be made where the petition for
probate has been filed by the testator himself.
When does jurisdiction become vested in the RTC over the probate
of a will?
Jurisdiction is vested on the CT
1. upon the filing of a petition for the proving of a will
2. upon the delivery of a will to the court even without such
petition.
When the petition for probate is made after the deposit of the will,
the petition is deemed to relate back to the time when the will was
delivered.
When jurisdiction in the RTC over the probate of a will, what must
the court do?
It is the duty of the court motu propio to appoint hearing for the
wills allowance and to cause notices thereof to be given by
participation. The duty imposed by Sec. 3 of Rule 76 is imperative.
Noncompliance therewith would be mockery of law and of the last
will of the testator. Consequently, a court can motu propio set the
time and place for proving the will delivered to it.
What should the notice of publication contain?
It should contain
1. time of hearing
2. place of hearing
3. order to persons who have interest in the will to appear and
show cause why the petition should/ should not be granted.
How does the court acquire jurisdiction over persons interested in the
probate of a will?
Through the publication of the petition in the newspapers.
Would the probate court lose its jurisdiction over the case if the
person who filed the petition withdraws from said case?
No, the withdrawal does not affect the jurisdiction of the court over
the proceedings and over all the other persons therein, for it is well
established principle that the proceeding for probate of a will is one
in rem and the court acquires jurisdiction over all the persons
interested in the estate of a deceased person, whether or not he
filed the petition for the probate of the will.
Why must the order be published?
Since the proceeding is in rem, notice to the whole world must be
given in order to acquire jurisdiction.
Note that publication is no longer required when the petition for
probate was filed by the testator.
What is meant by publication for three weeks successively?
Sec 3 Rule 76 does not mean that the notice referred to therein
should be published for three full weeks before the date set for the
hearing of the will. In other words, the first publication of the notice
need not be made twenty-one days before the day appointed for
hearing.
What is meant by NEWSPAPER OF GENERAL CIRCULATION?
A newspaper of general circulation
1. is published for the dissemination of local news and general
information;
2. if it has a bona fide subscription list of paying subscribers;
3. and if it is published at regular intervals.
The fact that there is another paper published that has a few more
subscribers and that other dailies also have a larger circulation in
that province is unimportant. The law does not require that a
publication of notice should be made in the newspaper with the
largest number of subscribers. No fixed number of subscribers is
necessary to constitute a newspaper of general circulation.
How is this notice by publication PROVED?
Notice by publication is proved by presenting in court the affidavit of
the publisher to such effect and the clippings of publication as it
appeared in the newspaper.
Actually affidavit of a foreman, or the business manager of the
newspaper who accepts the request of a person to publish such
notice (w/ payment of course) is sufficient.
When does CT sets time for hearing, cause publication etc ?
1. Upon delivery of the will, even if no petition is
filed or
OROSA NOTES
2. upon petition for probate, even if the original of
the will is not attached
as soon as practicable, MANDATORY
Why is the setting of time for hearing be the CT mandatory ?
Prevent delay in settlement. Otherwise, the CT can just sit on the
petition.
SEC 4 Heirs, devisees, legatees, and executors to be notified by
mail or personally.
The court shall also cause copies of the notice of the time and place fixed
for proving the will
to be addressed to the designated or other known heirs, legatees, and
devisees of the testator
RESIDENT IN THE PHILIPPINES at their places of residence,
and deposited in the post office with the postage thereon prepaid at least
20 days before the hearing, if such places of RESIDENCE BE KNOWN.
A copy of the notice must in like manner be mailed to the person named
as executor, if he be not the petitioner; also, to any person named as co-
executor not petitioning, if their places of residence be known.
PERSONAL SERVICE of copies of the notice at least 10 days before the day
of hearing shall be equivalent to mailing.
If the TESTATOR ASKS FOR THE ALLOWANCE OF HIS OWN WILL, notice shall be
sent only to his COMPULSORY HEIRS.
Is service of notice to all interested parties necessary?
It is necessary only when they the heirs, legatees and devisees and
their places of residence in the Phil. Are known. In other instances,
such is not necessary and the court may acquire and exercise
jurisdiction simply upon the publication of the notice in a newspaper
of general circulation.
What is indisputable to the jurisdiction of the court is the publication
of the notice in a newspaper of general circulation. The individual
notices to them are merely a matter of procedural convenience to
better satisfy in some instances the requirements of due process.
It is not jurisdictional. The decree allowing the will does not ipso
facto become void for want of jurisdiction
Who must be furnished notices?
The heirs, legatees and devisees of the testator who are residing in
the Phil.
Notice is required by this rule only if the residences of the persons
above are known.
If the testator himself filed the petition for probate, should he be
given notice thereof?
Not anymore since notice shall be sent only to his compulsory heirs.
(Par. 2 Sec 4 Rule 76)
Compulsory heirs: (Art. 887 NCC)
1. legitimate children and descendants with respect to their
legitimate parents.
2. In default of the foregoing, legitimate parents and ascendants
with respect to their legitimate children and descendants.
3. The widow or widower
4. Acknowledged natural children and natural children by legal
fiction
5. Other illegitimate children.
What about the executor, is he entitled to be given notice?
It depends, if the executor is not the petitioner, he must be notified
of the petition for probate, otherwise, he need not be notified.
What is the mode of service and how do you prove that such notice
has been sent to the parties concerned?
Notice must be sent by registered mail or by personal service. The
return card would serve as proof of service of notice by registered
mail, while if the notice was sent through personal service, the
receipt as signed by the person, who receives such, will serve as
proof of service thereof.
How would you show this to court?
When the court asks you to establish jurisdictional facts, you stand
up and say:
Your Nora honor (nye corny), we would like to martk the following
exhibits:
1) order of notice
2) affidavit of publication
3) actual copies of the newspaper where notice was published
4) registry return card/sheriffs return
5) death certificate
6) last will and testament
then present your witnesses
What are the contents of the order setting the time and place for
hearing ?
OROSA NOTES
1. Jurisdictional facts (JuNProLeCu) or with a person having charge thereof. If no person is found in his
2. Time, place, cause publication office, or his office is not known, or he has no office, then by leaving
3. Anyone who has interest is cited to appear and show cause why the copy, between the hours of eight in the morning and six in the
petition should not be granted evening, at the party's or counsel's residence, if known, with a
person of sufficient age and discretion then residing therein.
What are jurisdictional facts that must be established first.
Jurisdictional facts
a. testator died with a will What about by registered mail ?
b. testator is a resident of the Phil, who died w/in the jurisdiction Rule 13 Sec 7 provides :
of the CT Service by registered mail shall be made by depositing the copy in
c. if non-resident of the Phil, he has properties w/in jurisdiction of the office, in a sealed envelope, plainly addressed to the party or his
the CT counsel at his office, if known, otherwise at his residence, if known,
d. value and nature of the properties with postage fully pre-paid, and with instructions to the postmaster
e. names ages of H/D/L to return the mail to the sender after ten (l0) days if undelivered. If
no registry service is available in the locality of either the sender or
the addressee, service may be done by ordinary mail.
Explain : no defect in petition shall render allowance of the will
void ? How do you establish jurisdictional facts ?
Remember that probate of a will is mandatory.. if this is not the rule You must present this before evidence is presented. Tell the CT u
then the mandatory character of probate can easily be have jurisdiction otherwise the CT should not proceed.
circumvented by submitting a defective petition.
How ?
CT acquires jurisdiction over all persons upon publication. Is this We would like to mark exhibit the following documents order of
true in all cases ? notice, affidavit of publisher, newspaper clipping, return card of
No. When the testator himself is the petitioner, no publication is registered mail addressed to heir 1, heir 2, debtor 1, ., death
necessary. Only notice to compulsory heirs. certificate of the deceased, affidavit of service by server

What is the nature of defect if no notice is given to interested Pls see Rule 14 Sec 19.
persons ? Proof of service by publication.
Procedural defect. This requirement is just for procedural If the service has been made by publication, service may be proved
convenience. EXCEPT : if prejudicial to some persons entitled to a by the affidavit of the printer, his foreman or principal clerk, or of
part of the estate. the editor, business or advertising manager, to which affidavit a
copy of the publication shall be attached, and by an affidavit
What is the essence of the requirement of notice ? showing the deposit of a copy of the summons and order for
Due process. No person shall be deprived of life, liberty or property publication in the post office, postage prepaid, directed to the
w/o due process of law. defendant by registered mail to his last known address.

If by mail ?
20 days prior to the hearing date

If by personal service ?
10 days prior to the hearing date

What do you mean by personal service ?

Rule 13 Sec 6, (different from service of summons ha) provides :
Service of the papers may be made by delivering personally a copy
to the party or his counsel, or by leaving it in his office with his clerk
OROSA NOTES
SEC 5. Proof at hearing. What sufficient in absence of contest .
At the hearing compliance with the provisions of the last two preceding
sections must be shown BEFORE THE INTRODUCTION OF TESTIMONY in support
of the will.
All such testimony shall be taken under oath and reduced to writing. If
no person appears to contest the allowance of the will, the court may
grant allowance thereof on the testimony of 1 of the subscribing
witnesses only, if such witness testify that the will was executed as is
required by law.
In the case of a HOLOGRAPHIC WILL, it shall be necessary that at least 1
witness
who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of
the testator.
In the absence of any such competent witness, and IF THE COURT DEEM IT
NECESSARY, expert testimony may be resorted to.
What must be introduced as evidence at the hearing of the
petition for allowance of the will?
The following:
1. publication of notice
2. evidence of service of notice to heirs, legatees and
devisees at least 20 days before hearing
3. evidence of service of notice to executor
4. testimony of subscribing witness in support of the will.
What is the effect of the probate courts failure to require proof of
publication and or service of notice?
It is reversible error for a probate court to hear the application for
probate without proof of publication and service of notice required in
the two preceding sections of this rule.
When no person appears to oppose the probate of the will, what is
required in order for the will to be admitted to probate?
It may be admitted to probate on the testimony of one of the
attesting witnesses, provided it is sufficient to establish due
execution of the will. However, where an attesting witness to a will
appears to be hostile and adequate efforts have been exerted to
have him testify at the trial, his testimony can be dispensed with
and the will may be allowed to probate if there is enough evidence
to justify its probate.
The other subscribing witnesses must be produced if living within
the jurisdiction of the court in an uncontested probate proceeding.
What if the will is contested?
All the subscribing witnesses must be produced and the absence of
any of them must satisfactorily shown to the court.
What evidence must be introduced at the hearing for the probate of
holographic will?
The following
1. Notice to compulsory heirs was served
2. at least one witness knows the handwriting of the testator, or
an expert witness if court deems so.
What is sufficient for purposes of evidentiary requirement ?
IT depends :
Holographic will :
a. contested 2 ?
b. noncontested 1
Notarial Will
a. contested 3 attesting W + notary public
b. noncontested 1 attesting Witness (note that this is an
exception to the opinion Rule 130 sec 48, 49, 50)
SEC 6. Proof of lost or destroyed will. Certificate thereupon .
No will shall be proved as a lost or destroyed will unless
1. the EXECUTION AND VALIDITY of the same be established, and
2. the will is
a. proved to have been IN EXISTENCE at the time of the DEATH of the
testator, or
b. is shown to have been fraudulently or ACCIDENTALLY DESTROYED IN
THE LIFETIME OF THE TESTATOR WITHOUT HIS KNOWLEDGE,
nor unless its provisions are clearly and distinctly proved by at least 2
credible witnesses.
When a lost will is proved the provisions thereof must be DISTINCTLY
STATED AND CERTIFIED BY THE JUDGE , under the seal of the court, and the
certificate must be filed and recorded as other wills are filed and
recorded.
OROSA NOTES
What facts must be proved in order that a LOST OR DESTROYED
NOTARIAL WILL may be allowed?
The following:
1. due execution by the testator of the will
2. existence of the will when the testator dies or if it was not, that
it has been fraudulently or accidentally destroyed in the lifetime
of the testator without his knowledge.
3. two credible witnesses clearly establishes the provision of the
will.
Note, 1st and rd facts constitute secondary evidence in lieu of the
original will
It is not necessary to prove the contents of the will literally, but a
substantial proof of such contents is all that is required and if only a
part of the lost will can be proved, such party may be admitted to
probate.
May the execution and contents of a LOST OR DESTROYED HOLOGRAPHIC
WILL be proved by the testimony of a single witness?
No, although it may be proved perhaps by a Photostat copy or even
a mimeographed or carbon copy or by other similar means, if any,
whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court.
THE LACK OF OBJECTION TO THE PROBATE OF A LOST WILL DOES NOT RELIEVE
THE PROPONENT THEREOF OR THE PARTY INTERESTED IN ITS PROBATE FROM
ESTABLISHING ITS DUE EXECUTION and proving clearly and distinctly the
provisions thereof by at least two credible witnesses as provided for
in Sec 6 Rule 76. A lost will cant be admitted for probate on an
agreement or stipulation, evidence of which must be given as
required by statute.
When may secondary evidence be admitted in lieu of the
original will?
No, when the evidence presented is insufficient to establish in a
satisfactory manner the loss of the alleged will, secondary
evidence to prove the contents of the will can thereof not be
allowed, as allowance of such evidence is a violation of the best
evidence rule. (Araujo et al vs. Celis)
When evidence sufficiently point to the loss of the will of the
deceased, such circumstance justify the presentation of
secondary evidence of its contents and of whether it was
executed with all the essential and necessary legal formalities.
(Lim Billian vs. Suntay)
Can a LOST HOLOGRAPHIC will be probated ?
No. Oral and / or secondary evidence cannot be introduced to prove
the existence and contents of a lost holographic will because the
authenticity of the signatures cannot be proved by oral testimony.
(Rodelas vs Aranza)
What is the effect of a lost will said to be seen last in the possession
of the testator ?
Where a will w/c cannot be found is shown to have been in
possession of the testator, when last seen, the presumption is, in
the absence of other competent evidence, that the same was
cancelled or destroyed. The same presumption arises where it is
shown that the testator had ready access to the will and it cant be
found after his death. It shall not be presumed that such will has
been destroyed by any other person w/o the knowledge or authority
of the testator. (Gago vs Mamuyac)
Who has the burden of proof ?
In a proceeding to probate a will, the burden of proof is upon the
proponent clearly to establish not only its execution by the
proponents, the burden is on the contestant to show that it has
been removed. (Gago vs Mamuyac)
What is the CT supposed to do after the due execution and contents
of the lost will has been proved ?
Sec 6, Rule 76 : When a lost will is proved, the provisions thereof
must be distinctly stated and certified by the judge under the seal of
the CT and the certificate must be filed and recorded as other wills
are filed and recorded.
Show
1. existence at the time of death or destroyed accidentally or
fraudulently w/o the knowledge of the testator
2. due execution
prove distinctly and credibly contents by 2 witnesses (note you can
forgo the order in 2ndary evidence Rule TJ, remember ? copy, recital
of its contents in an authentic document, testimony of witness in the
order stated!)
OROSA NOTES
SEC. 7. Proof when witnesses do not reside in province.
If it appears at the time fixed for the hearing
that none of the subscribing witnesses resides in the province,
but that the deposition of one or more of them can be taken elsewhere,
the court may, on motion, direct it to be taken,
and may authorize
1. a photographic copy of the will to be made and
2. to be presented to the witness on his examination,
who may be asked the same questions with respect to it, and to
the handwriting of the testator and others,
as would be pertinent and competent if the original will were
present.
What may the CT do, where it appears that none of the witnesses to
the will resides in the province where the hearing is to be held ?
The taking of deposition of 1 or more of them may be directed by
the CT at the time fixed for the hearing.
In such case, how may the will be proved ?
A photographic copy of the will, upon authority of the CT, may be
presented to the witnesses on his examination. The deponents may
be asked the same questions wrt 4 the will and the handwriting of the
testator and others, as would be pertinent and competent if the
original will were present.
Does this provision apply to holographic wills ?
No !! This applies ONLY TO NOTARIAL WILLS.
A t what distance from the jurisdiction of the probate CT must the
witness be for the CT to take his deposition ?
At least 50 km away from the territorial jurisdiction of the CT for it
to order the taking of deposition of witnesses
How will the deposition taken ?
A copy of the will shall be sent along with questions drafted by both
parties and the witness shall be examined regarding the will as if he
testified in CT.
4
guys kung palaisipan senyo ang wrt..
wrt= with respect to
SEC. 8. Proof when witnesses dead or insane or do not reside in
the Philippines.
If it appears AT THE TIME FIXED for the hearing that the SUBSCRIBING
witnesses
1. are DEAD OR
2. INSANE, or
3. that NONE OF THEM RESIDES in the Philippines,
the CT may admit the testimony of other witnesses to prove
1. the SANITY of the testator, and
2. the DUE EXECUTION of the will;
and as EVIDENCE of the execution of the will, it may admit proof of the
HANDWRITING of the testator and of the subscribing witnesses, or of any of
them.
What if ALL the subscribing witnesses are either dead, incompetent
or unavailable /
It will NOT PREVENT THE ESTABLISHMENT of the due execution and
attestation of the will as long as its essentials are proved. After all, a
will may be generally be admitted to probate upon other legal and
satisfactory proof, unless the law provides that depositions must be
taken. The signature and the handwriting of the testator and the
witnesses must be proved.
What if the proponent cannot present all the subscribing witnesses ?
The proponent can establish prima facie case as long as proof of
the authenticity of the signature of the subscribing witness can be
duly proved. There would be a stronger case if the due execution
can be sufficiently established by the remaining witnesses and
substantiated by the notary public who prepared and notarized the
will.
The bottom line is that if the testimony of any of the surviving
subscribing witnesses can be taken, even through the taking of
depositions, proof of the will by non subscribing witnesses cannot
be authorized.
OROSA NOTES
SEC. 9. Grounds for disallowing will. - The will shall be DISALLOWED
in any of the following cases:
a. If NOT EXECUTED AND ATTESTED as required by law;
b. If the testator was INSANE, or otherwise mentally incapable to make
a will, at the time of its execution;
c. If it was executed UNDER DURESS, or the influence of fear, or threats;
d. If it was procured by UNDUE AND IMPROPER PREssure and influence, on
the part of the beneficiary, or of some other person for his benefit;
e. If the SIGNATURE of the testator was procured BY FRAUD OR TRICK, and
he DID NOT INTEND that the instrument should be his will at the time
of fixing his signature thereto.
All the formalities required by the statute are of EQUAL IMPORTANCE,
and the CTs have NO DISCRETION TO DISPENSE with them, or supply a
defect caused by a failure to comply with some of them. The rule
that the intention of the testator must govern, does not apply to
their execution.
PAROLE EVIDENCE is not admissible to show that decedent intended
to execute his will according to all the formalities prescribed by the
statute.
What is TESTAMENTARY CAPACITY ?
It is the capacity to comprehend
1. the nature of the transaction in w/c the testator is engaged at
the time
2. to recollect the property to be disposed of and
3. the persons who would naturally be supposed to have claims
upon the testator and
4. to comprehend the manner in w/c the instrument will distribute
among objects of his bounty.
To constitute a SOUND MIND, it is necessary that the mind shall be
wholly unbroken, unimpaired or unshattered by disease or
otherwise or that the testator be in possession of all his reasoning
faculties. (Torres vs Lopez)
What if a guardian is named for the testator alleged to be
incapacitated ?
Then a presumption of his mental infirmity is created. However, the
appointment of such guardian is not conclusive wrt to the mental
condition of a ward.
The presumption of mental infirmity may still be overcome by
evidence showing that the testator at the time he executed his will,
was in fact of sound and disposing memory.
What is undue influence ?
It is that w/c compels the testator to do that w/c is against his will,
from fear, the desire of peace or from other feeling w/c he is unable
to resist.
If someone WANTS TO OPPOSE PROBATE, what must he do?
He should
1. file an opposition in CT
2. stating his objections
3. send a copy to the proponent and other interested parties
What happens if the will is CONTESTED ?
All subscribing witnesses, if present in the Phil, should testify. If
anyone of them should be outside the jurisdiction of the CT his
deposition should be taken.
What if 1 of the subscribing witnesses opposes probate?
The CT may still allow probate if there are other evidence (other
witnesses, secondary evidence, etc)
Is the proponent bound to present all the witnesses ?
Yes, specially when the will is contested.
If the proponent presents only 1 subscribing witness, while the
opposition presents the other 2, and the proponent himself does not
oppose it would clearly weaken the cause of the proponent.
SEC 10. Contestant to file grounds of contest.
Anyone appearing to contest the will must
state in writing his grounds for opposing its allowance, and
serve a copy thereof on the
petitioner and
other parties interested in the estate.
OROSA NOTES
SEC 11. Subscribing witnesses produced or accounted for where
will contested
If the will is contested,
ALL the subscribing witnesses, and
the NOTARy in the case of wills executed
under the Civil Code of the Philippines,
if present in the Philippines and not insane,
MUST BE produced and examined, and
the death, absence, or insanity of any of them
must be SATISFACTORY SHOWN to the court.
If all or some of such witnesses are present in the Philippines but outside
the province where the will has been filed, their deposition must be
taken.
If any or all of them
1. testify against the due execution of the will, or
2. do not remember having attested to it, or
3. are otherwise of doubtful credibility,
the will may, nevertheless, BE ALLOWED
if the COURT IS SATISFIED
1. from the testimony of other witnesses and
2. from all the evidence presented
that the will was executed and attested in the manner required by law.
If a HOLOGRAPHIC WILL IS CONTESTED,
the same shall be allowed if at least 3 witnesses
who know the handwriting of the testator
explicitly declare that the will and the signature are in the handwriting of
the testator;
in the absence of any competent witness, AND if the court deem it
necessary expert testimony MAY be resorted to.
In case the will is contested, must all the attesting witnesses be
produced and examined before the CT?
It is true that the rule prevailing in this jurisdiction is that when a
will is contested, the attesting witnesses must be called to prove the
will or a showing must be made that they cannot be had, but that
does not necessarily mean that they must be brought bodily to the
CT. It is their TESTIMONY !! that is needed, and not their actual
personal presence in the CT. (Aldense vs Salutillo). Meaning, even if
contested, pwede ang deposition ng attesting witnesses.
In Cabang vs Delfinado, no will can be proved unless all subscribing
witnesses, alive and w/in the control of the process of the CT are
produced to testify. One of the reasons given for this rule is that the
party opposing the claim of proper execution of the will has the right
to the benefir of cross-examining the attesting witnesses as to
fraud, duress or other matters of defense.
When the petition for probate of a will is contested proponent
should introduce all 3 of the attesting witnesses, if alive and w/in
the reach of the process of the CT, and the execution of the will
cannot be considered sufficiently proved by the testimony of 1
alone, w/o the satisfactory explanation of the failure to produce the
other 2. Nevertheless, an objection to the probate of the will on
such ground cannot be made for the 1 st time on appeal. (Avera vs
Garcia)
SEC 12. Proof where testator petitions for allowance of
holographic will.
Where the TESTATOR HIMSELF PETITIONS for the probate of his
HOLOGRAPHIC WILL and NO CONTEST in filed,
the fact that
1. he affirms that the holographic will and
2. the signature are in his own handwriting
shall be SUFFICIENT EVIDENCE of the genuineness and due execution
thereof.
If the holographic will is CONTESTED the burden of disproving the
genuineness and due execution thereof shall be on the contestant.
The TESTATOR may, in his turn, present such additional proof as may be
necessary to REBUT the evidence for the contestant.
What happens if after due execution, loss has been established,
what will the CTs do ?
The CTs will certify that the provision of the lost will had been duly
proved.
What if the will is not lost ?
The CTs will issue a certificate in accordance w/ Sec 13.
SEC 13. Certificate of allowance attached to proved will. To be
recorded in the Office of Register of Deeds.
If the court is satisfied, upon proof taken and filed,
that the will was duly executed, and
that the testator at the time of its execution was of sound and disposing
mind, and
not acting under duress, menace, and undue influence, or fraud,
a certificate of its allowance,
signed by the judge, and
attested by the seal of the court
OROSA NOTES
shall be attached to the will and
the will and certificate filed and recorded by the clerk.
Attested copies of the will devising REAL ESTATE and of certificate of
allowance thereof, shall be recorded in the register of deeds of the
province in which the lands lie.
RULE 75
ALLOWANCE OF A WILL PROVED OUTSIDE OF THE PHILIPPINES AND ADMINISTRATION
OF ESTATE THEREUNDER
SEC. 1. Will proved outside Philippines may be allowed here.
WILLS PROVED AND ALLOWED IN A FOREIGN COUNTRY,
according to the laws of such country
may be allowed, filed, and recorded by the proper CT in the Philippines.

What is another name for this rule ?

Reprobate. Kc probated na sa foreign country, tas I-probate ulit
dito. E di re-probate!

What is the effect of a will of an ALIEN who is ABROAD?

Produces effect in the Philippines if made
1. with the formalities prescribed by the law in the place in which
he RESIDES or
2. according to the formalities observed in HIS COUNTRY or
3. in conformity with those w/c the CIVIL CODE of the Philippines
prescribed. (Art 816 NCC)

What is the effect of a will made in the Philippines by a citizen of

another country ?
A will made in the Phil by a citizen of another country w/c is
executed in accordance w/ the law of the country of w/c he is a
citizen and w/c might be proved and allowed by the law of his own
country shall have the same effect as if executed according to
the laws of the Philippines. (Art 817)

What is the effect of a will of a Filipino executed in a foreign

country ?
When a Filipino is in a foreign country, he is authorized to make a
will in any of the forms established by the law of the country in w/c
he may be. Such will may be probated in the Philippines.

WILL ACCOR. TO THE LAW OF

of an alien, 1. the place where he

made abroad resides
2. his nationality
3. Philippines
of an alien His nationality
made in the Phil
Of a Filipino The country where he may
Made abroad be
OROSA NOTES
SEC 2. Notice of hearing for allowance.
When a copy of such will and of the order or decree of the allowance
thereof,
both duly authenticated, are filed with a petition for allowance in the
Philippines,
by the executor or other person interested, in the court having
jurisdiction
such court shall fix a time and place for the hearing, and cause notice
thereof to be given as in case of an original will presented for allowance.
SEC 3. When will allowed, and effect thereof.
If it appears at the hearing that the will should be allowed in the
Philippines
the court shall so allow it, and a certificate of its allowance, signed by the
judge, and attested by the seal of the court, to which shall be attached a
copy of the will, shall be filed and recorded by the clerk, and the will shall
have the same effect as if originally proved and allowed in such court.
What is the PROCEDURE ?
file a petition of allowance of the will together with
1. a copy of the will , duly authenticated
2. an order or decree of allowance duly authenticated
with the proper CT (RTC/MTC where any property of the testator
lies)
executor or any interested person may file the petition for allowance
Then the CT will
1. fix time and place for the hearing
2. cause notice to be published and served as in cases of an
original probate of a will
What are the REQUISITES of the allowance of a will allowed in a
foreign state ?
At the hearing for the probate of a will allowed in a foreign country,
the applicant must introduce evidence to establish :
1. the DUE EXECUTION of the will in accordance with the foreign laws
2. that the testator has HIS DOMICILE IN THE foreign country and not
in the Phil
3. that the will has been ADMITTED TO PROBATE IN SUCH COUNTRY
4. the fact that the FOREIGN TRIBUNAL is a foreign CT
5. the LAWS OF A FOREIGN COUNTRY ON PROCEDURE AND ALLOWANCE of
wills .
(Suntay vs Suntay)
What if the LAWS OF THE FOREIGN COUNTRY on procedure and allowance
of wills is not established ?
The CTs cannot take judicial notice of Laws of other countries. They
must be proved like any other fact. If they are not proved they will
be presumed to be the same as the laws of the Phil
What must be proved when a will is executed in a foreign country
but want to be probated here ?( note : d pa na-probate sa foreign
country, first time I-probate dito!)
1. that the testator is a resident of a foreign
country at the time of his death
2. duly executed according to
a. place he resides
b. law of his country
c. Phillippine law
3. law on execution of the foreign country
4. that the law is in force at time of the execution of the will
(Fluemer vs Hix)
these requisites are in addition to requisites of ordinary probate
SEC 4. Estate, how administered.
When a will is thus allowed
the CT shall grant letters testamentary, or letters of administration
with the will annexed,
and such letters testamentary or of administration, shall EXTEND TO ALL
THE ESTATE OF THE TESTATOR IN THE PHILIPPINES.
Such estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such
will may operate upon it;
and the residue, if any, shall be disposed of as is provided by law in
cases of estates in the Philippines belonging to persons who are
inhabitants of another state or country.
NOTE : Art. 16 of the NCC:
Real property as well as personal property is subject to the law of the
country where it is stipulated.
However, intestate and testamentary successions, both with respect to
the order of succession and to the amount of successional rights and to
the intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the
country wherein said property may be found.
OROSA NOTES

What law governs testamentary dispositions ?

The national law of the testator is the one to govern his
testamentary disposition (Miciano vs Brimo)

What is the EXTENT OF THE POWER OF ADMINISTRATION of the estate

granted by the CT ?
The general rule universally recognized is that administration
extends only to the assets of a decedent w/in the state of eh
country where it was granted, so that an administrator appointed in
1 state of country has no power over property of another in anther
state or country.
OROSA NOTES
RULE 78
LETTERS TESTAMENTARY AND OF ADMINISTRATION WHEN AND TO WHOM ISSUED
SEC 1. Who are incompetent to serve as executors or
administrators.
No person is competent to serve as executor or administrator who:
a. Is a minor;
b. Is not a resident of the Philippines; and
c. Is in the opinion of the court unfit to execute the duties of the trust
by reason of
- drunkenness,
- improvidence, or
- want of understanding or integrity, or
- by reason of conviction of an offense involving moral turpitude.
What is an EXECUTOR ?
An executor is a person nominated by a testator in his will to carry
out his direction and request thereof and to dispose of the property
according to his testamentary provisions after his death. Called
testatrix, if a woman.
What is an ADMINISTRATOR ?
An administrator is a person appointed by the CT of probate to
administer and settle
- intestate estate and
- such testate estates where
1. no executor is named in the will
2. the executor/executors named in the will are incompetent ,
refuses the trust, or fail to give bond
What is the NATURE of the office of executor or administrator ?
The executors as well as administrators are TRUSTEES. That the funds
of the estate in their hands are trust funds, and that they may be
held to responsibilities and duties of trustees. An administrator
occupies a position of highest trust and confidence. He is required to
exercise reasonable diligence and act in entire food faith in the
performance of that trust.
What is the REASON FOR THE APPOINTMENT of an executor or
administrator ?
It is to protect not only the estate of the deceased but also the
rights of the creditors in order that they may be able to collect their
credits and those of the heirs and legatees in order that they may
receive the portions of the inheritance pr legacies pertaining to them
after al the debts and expenses have been paid.
The judicial administrator is the legal representative not only of the
estate or intestate estate but also of the creditor and the heirs and
legacies and the CT in as much as he represents their interests.
WHO ARE COMPETENT to act as executors/administrators ?
A person may be appointed an executor or administrator if he is
capable of making a will or is not especially disqualified.
A person or association authorized to conduct the business of a
trust company in the Phil may be appointed as executor or
administrator of an estate in the same manner as an individual.
A reading of Sec 1, Rule 78 would lead to inference that a person
who is
1. of age
2. a resident of the Phil
3. the CT deems him fit (not drunkard, )
may be administrator or executor.
Who are INCOMPETENT to act as executors/administrators ?
Rule 78 Sec 1 provides that the following persons are disqualified :
a. Is a minor;
b. Is not a resident of the Philippines; and
c. Is in the opinion of the court unfit to execute the duties of the
trust by reason of
- drunkenness,
- improvidence, or
- want of understanding or integrity, or
- by reason of conviction of an offense involving moral
turpitude.
A MINOR is disqualified because as a GR a minor is incapacitated to
enter into K. He always need the assistance of a guardian or legal
reps to exercise a valid act.
A NON-RESIDENT is disqualified because as the CTs are charged with
the responsibility of protecting the estates of deceased persons, and
if they appoint non-residents the CT would find much difficulty in
complying with its duty since non-residents are nt personally
subject to their jurisdiction.
For DRUNKENNESS to be a ground for disqualification it must be of
such degree that would impair the persons sound judgment and
reason and w/c would necessarily affect his integrity and honesty.
IMPROVIDENCE generally connotes unwise or ill advised spending.
Improvidence is a ground for disqualification because the
executor/administrator is entrusted with the management of an
estate and an improvident lacks good judgment and foresight.
OROSA NOTES
WANT OF UNDERSTANDING means lack of knowledge to know the
nature of the functions of an executor or administrator. So how can
he carry out the trust.
WANT OF INTEGRITY generally connotes a persons lack o credibility as
to affect his honesty.
Is being a gambler a disqualification ?
Although not enumerated, if it is of such degree as to render him
unfit or unsuitable for the position of executor or administrator then
it amounts to a disqualification.
What if a person has ANTAGONISTIC INTEREST with that of the estate ?
A mere antagonistic interest does not disqualify a person outright
from being appointed as executor/administrator.
Can the CT add more disqualifications ?
Yes, since the Ct has the discretion in determining whether a person
is fit to be executor or administrator.
Can a CORP OR AN ASSOCIATION act as an executor or administrator ?
Yes, a corp or association authorized to conduct business of trust
company in the Phil may be appointed as an exec,admin, guardina
of an estate or trustee, in like manner as individual.
Are there OTHER GROUND for disqualification or incompetency ?
Yes, the SC has held that CTs may likewise refuse to appoint a
person as exec/admin on the ground of unsuitableness, as for
instance, when such person has an adverse interest or is hostile to
those immediately interested in the estate to such an extent as to
render his appointment inadvisable.
The determination of a persons suitability for the office of admin
rests in the sound judgment of the CT exercising the power of
appointment and such judgment will not be interfered w/ unless it
appears affirmatively that the lower CT was in error.
SEC 2. Executor of executor not to administer estate.
The executor of an executor shall not, as such, administer the estate of
the first testator
Explain.
An executor of an executor cannot administer the estate of the first
administrator.
A made Y executor of his estate. Y in turn designated D as executrix
of his estate. Y cannot, however, administer As estate.
What is an administrator de bonis non?
One who is appointed as the new administrator after the death of an
executor who has not finished settling the estate.
SEC 3. Married women may serve.
A married woman may serve as executrix or administratrix, and
the marriage of a single woman shall not affect her authority so to serve
under a previous appointment.
SEC. 4. Letters testamentary issued when will allowed.
When a will has been proved and allowed,
the court shall issue letters testamentary thereon to the person named
as executor therein, if he is
competent,
accepts the trust, and
gives bond as required by these rules.
Who issues letters testamentary?
The CLERK OF CT by the authority of the probate judge issues such
When are letters testamentary issued?
After the will has been filed and an appropriate probate had
wherein the will passes probate
What is the point of reckoning as regards the effectivity of the date
of issuance of letters testamentary?
The letters RETROACT TO THE DATE OF THE TESTATORS DEATH (not its
issuance).
May an executor REFUSE THE TRUST when in consideration of such
refusal the heirs bribed him?
No, he may not refuse the trust by reason of public policy
Is Sec 4 Rule 78 mandatory in the sense that when a will has been
proved or allowed, the courts have no other alternative but to issue
letters testamentary to the person named as executor therein?
Not mandatory. Even though the person named as executor accepts
the trust and gives the bond, this provision of the law should not be
construed strictly because the court would be deprived of the power
not to appoint one who is unworthy of the trust, not withstanding
the fact that he was named as such by the testator. (Mercado vs.
Vda. De Jaen)
Has the CT the unbridled power not to appoint the person named in
the will as an executor?
No. The CT has the power not to appoint a person named in the will
as an executor on the grounds of unworthiness, incapacity,
OROSA NOTES
ineptitude and unfitness provided said grounds are real, manifest
and not merely imaginary.
What is the extent of the CTs power over the testators choice?
The court itself can make no original appointment of the executor
since its power is limited to recognizing and approving or
disapproving an appointment made by the testator.
When a will has been admitted to [probate but was appealed, may a
special administrator be appointed in the meantime?
No. The choice of the executor is a precious prerogative of the
testator. It is an abuse of discretion to appoint anyone other than
the named executor pending appeal. (Ozaeta vs Pecson)
` kin, or the person selected by them, be incompetent or unwilling, or
SEC 5. Where some co-executors disqualified others mat act
When all of the executors named in a will CANNOT ACT because of
incompetency,
refusal to accept the trust, or
failure to give bond,
on the part of one or more of them,
letters testamentary may issue to such of them as are competent,
accept and give bond, and they may perform the duties and discharge
the trust required by the will.
What is the NATURE of the act of the executors in this section?
The ACT OF ONE EXECUTOR IS THE ACT OF ALL . There is an equality
among them.
What is the nature of the liabilities of the executors under this
section?
It is SOLIDARY AND JOINT since the act of one si the act of all.
May the CT appoint more than one executor or administrator?
Yes, if in accordance with the nomination in the will. Also, as a rule,
while the CT appoints only one administrator in intestate estates,
more than one administrator may be appointed by the CT.
When there is more than one executor or administrator what is the
extent of each ones authority?
They have EQUAL authority among themselves and exercise joint
supervision over the estate, since, in they eyes of the law, they are
only representing one person. The act of one is the act of all. An
agreement between joint executors and administrators that only one
shall manage the estate is void.
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 rust, or
fail to give bond, or
a person dies intestate,
ADMINISTRATION shall be granted.
1. 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;
2. If such surviving husband or wife, as the case may be, or next of
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;
3. If there is no such creditor competent and willing to serve, it may be
granted to such other person as the court may select.
When are letters of administration granted?
SEC6 Rule78 contemplates 2 cases when a person letters of
administration shall be granted, namely:
1. a person dies WITH A WILL
a. w/out appointing an executor
b. appoints an executor but is incompetent
c. appoints an executor but the executor refuses the trust
d. appoints an executor but the executor fails to give a bond
2. a person dies W/OUT A WILL
Does Sec 6 Rule 78 require that the estate of a person who dies
leaving properties in the Phils., must always be judicially
administered?
GR: PROPERTY should always be judicially administered when
decedent leaves property in the Phils. (Sec6R78)
Exceptions:
1. extrajudicial settlement by agreement between the heirs
2. summary settlement of estates of small value (R74)
What is required for the VALIDITY OF THE APPOINTMENT of the
administrator?
OROSA NOTES
A HEARING must be conducted and NOTICES sent to the other
heirs and interested parties.
The said requirement of hearing and notice is essential to the
validity of the appointment of an administrator in order that no
person may be deprived of his right of his property w/out due
process of law.
A hearing is also necessary to determine the suitability of the
applicant to the trust by giving him the opportunity to prove his
qualifications and affording oppositors if any, to contest the said
application.
What is the primary consideration in the appointment of an
administrator? Is it the same principal consideration in the
establishment of preference under Sec6 R78?
The principal consideration is the INTEREST IN SAID ESTATE OF THE ONE
TO BE APPOINTED a such administrator which is the same main
consideration in establishing the order of preference of appointment
in Sec6R78.
The underlying presumption is that those who will reap the benefit
of a wise, speedy, economical administration of the estate, or on the
other hand, suffer the consequences of waste, improvidence or
mismanagement have the highest interest and most influential
motive to administer the estate correctly. (Gonzales vs. Aguinaldo)
What is the ORDER OF PREFERENCE in the appointment of the
administrator?
When the appointment of administrator is proper, the letters of
administration shall be granted in the order of preference as follows:
1. to the surviving spouse
2. to the next of kin
3. in the default of the surviving spouse or the next of kin, then
one or more of the principal creditors
4. in the default of such creditors, then such other person as the
CT may appoint
What is the basis of the preference in this section?
The basis of the preference is the beneficial interest in the estate.
What is mean by the term next of kin?
next of kin means heirs under the laws of succession.
Why is the SURVIVING SPOUSE PREFERRED among all the others?
Since the principal consideration in the appointment of the
administrator is the interest in the estate of the one to be
appointed, the SS is preferred since it takes into account the
interest of the SS in the estate of the deceased as a partner to the
conjugal partnership. Me share na sa conjugal properties,
compulsory heir pa.. so deemed to have the most intereset.
What is the effect of the invalidity of the marriage upon the right to
be appointed administrator?
The right of a SS to be appointed administrator of the deceased
spouses estate is NOT affected by the fact that her marriage is
voidable.
But if the marriage is void, the SSs right is not recognized.
Is the preference of the SS a HARD AND FAST RULE?
No, said preference is not absolute, since the interest in the estate is
the decisive factor, it could be that there is someone other than the
SS who has more interest in the estate.
Example: If the major portion of the estate was acquired by the
deceased during the first marriage, the children of the deceased in
the 1st marriage shall be preferred to the childless widow of the 2 nd
marriage.
The order of preference is based on the presumption that the
persons preferred are suitable which is why the CTs mar exercise
discretion in the selection of an administrator
The order of preference may only be disregarded when the reasons
thereof are positive and clear.
Why are next of kin preferred after the SS?
Because under the rules of testate and intestate succession they are
entitled to the decedents property.
The nearest of kin whose interest is more preponderant, is preferred
in the choice of administrator.
What is the basis of preference in this section?
The beneficial interest in the estate.
Wno are the creditors that may be appointed administrator?
Creditor means one to whom the decedent owed. Hence, one is
not a creditor unless the decedent was indebted to him personally or
unless by operation of law becomes the legal owner of a claim
against the decedent.
When the status of creditor ceases, the right to administer likewise
ceases. For example, when those to whom the estate would go
would offer to pay a claim to a particular creditor, all reasons for
giving preference to the creditor in the administration of the estate
ceases.
What is the EXTENT of the grant of the letters of administration?
It extends only to the assets found w/in the state or country where
it was granted.
OROSA NOTES
The administrator in one state has no power over the property of
the deceased in another state.
What if the decedent died leaving properties in different states of
countries?
When a person dies intestate owning property in the country of his
domicile and in another country, administration is to be had in BOTH
countries.
Principally/domiciliary administration- administration granted in
decedents last domicile
Ancillary administration any other administration
To whom are ancillary letters granted?
It may be granted in the Phils. according to the order of preference
in Sec6R78 if the person appointed as ancillary administrator:
1. is residing in the Phils
2. is not incompetent
Otherwise, ancillary letters may be granted to the domicillary
representative if:
if he applies therefore, or to his nominee or attorney
The CT may, in its discretion appoint an acillary administrator, there
being no express statutory requirement on the matter
What is the duty of ancillary administrator?
To pay the claims of the creditors if any
To settle the accounts and remit the surplus to the domiciliary
jurisdiction for distribution to the next of kin
What is the TERRITORIAL EXTENT of the appointment of ancillary
administration?
It extends only to the assets found w/in the state or country where
it was granted.
The administrator in one state has no power over the property of
the deceased in another state.
RULE 81
BONDS OF EXECUTORS AND ADMINISTRATORS
SEC 1. Bond to be given before issuance of letters; Amount;
Conditions.
Before an executor or administrator enters upon the execution of his
trust, and letters testamentary or of administration issue, he shall give a
bond, in such sum as the court directs, conditioned as follows:
a. To make and return to the court, within 3 months, a true and
complete inventory of all goods, chattels, rights, credits, and estate
of the deceased which shall come to his possession or knowledge or
to the possession of any other person for him;
b. To administer according to these rules, and, if an executor,
according to the will of the testator, all goods, chattels, rights,
credits, and estate which shall at any time come to his possession or
to the possession of any other person for him, and from the
proceeds to pay and discharge all debts, legacies, and charges on
the same, or such dividends thereon as shall be decreed by the
court;
c. To render a true and just account of his administration to the court
within 1 year, and at any other time when required by the court;
d. To perform all orders of the court by him to be performed.
In the determination of the estate, may the executor or
administrator bind the estate by borrowing money or mortgaging
any properties of the estate to secure a debt to obtain a loan?
Neither the executors, unless specially authorized by will, nor
administrators, have the power to bind the estate of the deceased
by borrowing money. The statute grants no power to an
administrators or executor to borrow money upon a mortgage.
Indeed such an act is foreign to the policy and purpose of
administration which aims to close up not to continue an estate.
(Lizzaraga Hermanos vs. Abad)
How should the administration of estates be settled?
In this connection, Sec 15 Rule 88 provides that debts and legacies
of the deceased should be paid within 1 year, a period which may be
extended to 2 years of the circumstances so require.
What is the effect of the executor or administrators failure to close
up the estate within the period prescribed by the rules?
All CTs should exert themselves to close up estates within 12
months from the time they are presented an they may refuse to
allow any compensation to executors and administrators who do not
OROSA NOTES
actively labor to the end and may even adopt harsher measures.
(Lizarraga Hermanos vs. Abad)
The harsher measure may be removal of the executor or
administrator in accordance with Sec 2 Rule 82 or his liability for
damages under Sec 5 Rule 85. There can be no legal excuse for
delaying the closure of administration to more than 2 years and a
half as provided in Sec 16 Rule 88.
In the administration of the estates, is the administrator or executor
authorized to continue the business in which the decedent was
engaged at the time of his death?
An executor or administrator ordinarily has no power to continue the
business in which the decedent was engaged at the time of his
death and this is true although acts in the utmost good faith and
believes that he is proceeding for the best interest of the estate. The
penalty for continuing a business of the decedent without authority
is the imposition of a personal liability on the executor or
administrator so doing for all the debts of the business. The normal
duty of the personal representative in reference to such business is
limited to winding up and even where the beneficiaries are infants
the CT cannot authorize the administrator to carry on the trade of
the decedent. So great a breach of trust is it for the representative
to engage in business with the funds of the estate that the law
charges him with all the losses thereby incurred without the other
hand allowing him to receive the benefit of any profits that he may
make, the rule being that persons beneficially interested in the
estate may either hold the representative liable for the amount so
used with the interest or at their election take all the profits which
such representative has made ( Wilson vs. Rear)
In the proceeding against the bond is the surety entitled to notice?
A surety is not entitled to notice of the proceeding against the
administrator but he may be allowed to intervene if he asks for
leave to do so in due time
SEC 2. BOND OF EXECUTOR WHERE DIRECTED IN WILL. WHEN FURTHER BOND
REQUIRED.
If the TESTATOR IN HIS WILL DIRECTS that the executor serve
without bond, or
with only his individual bond,
he may be allowed by the CT to give bond in such sum and with such
surety as the CT approves
CONDITIONED ONLY TO PAY THE DEBTS of the testator;
but the CT may require of the executor a further bond
in case a change in his circumstances, or
for other sufficient cause,
with the conditions named in the last preceding section.
May the testator exempt the executor from the requirement of
posting a bond by providing for such in his will?
Even of the testator has provided in his will that his executor serve
without a bond, the CT may still require him to file a bond
conditioned only to pay the debts of the testator and thereafter,
based on the circumstances, the CT may require further bond from
said executor to answer for breaches in his administration.

What is the degree of care require in the administration of the

decedents estate?
That standard of responsibility of the administrator is best measured
as that of a bailee. Like any bailee, he must pursue his decision
honestly and in good faith or he will become personally liable to
those who are interest in the estate for waste, conversion or
embezzlement.

May the bond be bond for the return of the money which the
administrator spent in good faith and which he is unable to repay?
A surety on an administrators bond in bound only for the faithful
administration of the estate and not for the return of money which
the administrator, in good faith spent and which he is unable to
repay (Montemayor vs. Heirs of Guttierez)
OROSA NOTES

SEC 3. Bonds of joint executors and administrators.

When TWO OR MORE PERSONS are appointed executors or administrators
the CT may take a
SEPARATE BOND from each, or
a JOINT BOND from all.

SEC 4. Bond of special administrator.

A special administrator BEFORE ENTERING upon the duties of his trust shall
give a BOND,
in such sum as the CT directs,
CONDITIONED that he will
1. MAKE AND RETURN A TRUE INVENTORY of the goods, chattels, rights,
credits, and estate of the deceased
which COME TO HIS POSSESSION OR KNOWLEDGE, and
2. that he will TRULY ACCOUNT for such as are received by him when
required by the CT, and
3. will DELIVER THE SAME to the person appointed executor or
administrator, or to such other person as may be authorized to
receive them.

What are the conditions of a special administrators bond?

It is conditioned that :
1. He will make and return a true inventory of the estate of the
deceased which comes to his possession and knowledge
2. He will truly account for such as are received by him when
required by the CT
3. He will deliver the same to the persons appointed executor or
administrator or to such other persons as may be authorized to
receive them
OROSA NOTES
RULE 82
REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION AND REMOVAL OF
EXECUTORS AND ADMINISTRATORS
SEC 1. Administration revoked if will discovered; Proceedings
thereupon.
If after letters of administration have been granted on the estate of a
decedent
as IF HE HAD DIED INTESTATE,
his WILL IS PROVED AND ALLOWED BY the CT
1. the letters of administration shall be
revoked and
all powers thereunder cease, and
2. the administrator shall forthwith
surrender the letters to the CT, and
render his account within such time as the CT directs.
Proceedings for the issuance of letters testamentary or of administration
under the will shall be as hereinbefore provided.
WHEN may letters of administration issued by a CT be REVOKED?
They may be revoked
1. When a NEWLY DISCOVERED WILL HAS BEEN ADMITTED TO PROBATE
AFTER the issuance of letters of administration, such letters of
administration may be revoked
2. When letters of administration have been issued ILLEGALLY OR
WITHOUT JURISDICTION, such letters of administration may be
revoked by the probate CT
What are the EFFECTS OF SUCH REVOCATION as provided for by Sec 1
Rule 82?
The effects are
1. All powers of administration shall cease
2. The administrator shall forthwith surrender his letters to the CT
3. The administrator shall render his account within such time as
the CT directs
4. Proceedings for the issuance of letters of testamentary or of
administration under the will shall be had.
Does the MERE DISCOVERY of a document purporting to be a will ipso
facto authorize the revocation of the letters of administration?
No. Mere discovery of a document purporting to be a will and
testament of the decedent after appointment of an administrator
upon assumption that the decedent died intestate does not, in view
of Sec 1 Rule 82 ipso facto nullify the letters already issued or even
authorize their revocation until the will has been proved and
allowed.
SEC 2. CT MAY REMOVE OR ACCEPT RESIGNATION OF EXECUTOR OR
ADMINISTRATOR; PROCEEDINGS UPON DEATH, RESIGNATION, OR REMOVAL.
If an executor or administrator
1. NEGLECTS
a. to render his account and
b. settle the estate according to law, or
c. to perform an order or judgment of the CT, or a duty
expressly provided by these rules, or
2. ABSCONDS, or
3. becomes INSANE, or
4. otherwise INCAPABLE OR UNSUITABLE TO DISCHARGE the trust
the CT may REMOVE him, or,
in its discretion, may permit him to resign.
When an executor or administrator dies, resigns, or is removed the
REMAINING EXECUTOR OR ADMINISTRATOR may administer the TRUST ALONE,
UNLESS the CT grants letters to someone to act with him.
If there is NO REMAINING executor or administrator, administration may be
granted to any suitable person.
How would you DISTINGUISH REVOCATION FROM REMOVAL?
Strictly speaking, letters of administration are revoked where it is
shown that they should not have been issued or were improperly
issued due to ground existing before or at the time of the issuance
while the removal of an executor or administrator should be for
grounds which have arisen after the letters were issued.
Another distinction between revocation and removal is that in
removing an administrator, the law provides 6 grounds as provided
for in Sec 2 Rule 82 while revocation arises when a will is proved
and allowed by the CT.
OROSA NOTES
What are the GROUNDS FOR REMOVAL OR COMPELLING RESIGNATION of an
executor or administrator?
The grounds are :
1. When an executor or administrator neglects to render his
account
2. When an executor or administrator neglects settle the estate
according to law and these rules
3. When an executor or administrator neglects to perform an
order or judgment of the CT
4. When an executor or administrator neglects to perform a duty
expressly provided by these rules
5. When an executor or administrator absconds
6. When an executor or administrator becomes insane, or
otherwise incapable or unsuitable to discharge the trust.
How soon must the executor administrator render his account?
Under Sec 8 Rule 85, every executor or administrator shall render
an account of his administration within 1 year from the time of
receiving letters testamentary or of administration, unless the CT
otherwise directs In connection with this, in one case an
administrator filed his 1st account 2 years after his appointment as
such and his 2nd account after the next years The 2 nd account was
disapproved and he was ordered to file an amended account within
30 days. Despite an extension of 10 days after the lapse of the 30
day period, he still failed to file the required amended account and
he filed the old account without change, This and some irregularities
found in his accounting were held to be sufficient grounds for his
removal since the CT was convinced that such person was unfit to
be administrator since he had not in act administered the estate
with due regard to the right of other persons in interest (Gustilo vs.
Sian)
Are the grounds for removal or compelling resignation under Sec 2
Rule 82 EXCLUSIVE?
No. The grounds enumerated by this legal provision are not
exclusive. Thus where the appointment of an administrator was
procured through false representations, the power of the CT to
revoke the appointment on that ground is beyond question, This is
so because the position of an administrator is one of confidence.
Once the CT finds the appointee top the position not entitled to such
confidence, it is justified in withdrawing the appointment and giving
no valid efficacy thereto (Cobarrubias vs. Dizon). The removal of an
administrator lies within the sound discretion of the CT in appointing
him. The sufficiency of any ground for removal should thus be
determined by said CT whose sensibilities are in the first place
affected by any act or omission on the part of the administrator not
conformable to or in disregard of the rules or orders of the CT.
Give an example wherein the removal of an administrator
constitutes grave abuse of discretion.
M was appointed by the probate CT in a special proceeding as one of
the administrators in the settlement of the estate of D.
Subsequently, C filed a motion for removal of M on the ground that
he is incompetent and negligent in the management of the 5
haciendas under his charge. During the reception of the evidence
conducted by the probate CT, C submitted certain exhibits in
support of his motion to oust M. On, Jan 8, 1966, M filed a motion
objecting to the admission in evidence of the exhibits presented by
C on the ground that the same were hearsay, self-serving, irrelevant
and/or mere photostatic copies of supposes originals which were not
identified nor produced in CT. On Jan 30, 1966, the CT issued an
order removing M as administrator. The order of the CT removing M
is a nullity because it was issued by the judge thereof without
affording M the full benefit of a day in CT, thus denying him the
cardinal right to due process. The probate CT issued said order
without giving M the opportunity to adduce evidence despite his
explicit reservation that he be afforded the chance to introduce
evidence in his behalf in the event of denial of his motion to dismiss
and/or demurrer to evidence. Such act constitutes grave abuse of
discretion which dooms the order as a nullity. In fact, even without
reservation of M, it was the bounded duty of the probate judge to
schedule the presentation and reception of evidence before
disposing of the case on the merits because only the movant C at
that time presented evidence.
Is ADVERSE INTEREST a ground for removal ?
The appointment of an administrator may be revoked by reason of
his adverse interest to that of the estate and the interested parties
which makes him unsuitable for the trust (Degala vs Ceniza and
Umipig). Conflict between the interest of the executor and the
interest of the deceased is a ground for removal or resignation of
the former who has thereby become unsuitable to discharge the
trust.
Continuous conflicts and disputes arising between parties in the
settlement proceedings which redound to the detriment of the
properties under administration is sufficient ground for the removal
of an administrator who has shown incompetence in the fulfillment of
her duties which gave rise to the filing of inaccurate inventories and
accounts.
OROSA NOTES
Why is being hostile or adverse administrator ground for removal as
such?
The nature of the office of administration is fiduciary in nature and
as such utmost good faith is required.
At what point in time must one determine the unsuitableness of the
administrator for his removal?
Unsuitableness must be determines AS OF THE DAY THE PETITION FOR
REMOVAL IS FILED
Who determines the sufficiency of any of the ground for removal.
The removal of an administrator or executor lies within the
discretion of the CT appointing him. The sufficiency of any ground
for removal should be determined by said CT whose sensibilities are
in the first place affected by any act or omission on the part of the
administrator not conformable to or in disregard of the rules or
order of the CT. Consequently, appellate tribunals are disciplines to
interfere with the action taken by a probate CT in the matter of the
removal of an executor or administrator unless positive error or
gross abuse of discretion is shown (Degala vs, Ceniza)
Q. If it was subsequently discovered that the administrator was
indebted to the decedent, is this a ground for removal?
No. The mere fact that the duly appointed administrator was
indebted to the decedent is not a ground for removal, absent an
other circumstance indicative of bad faith or lack of integrity on his
part.
Q. If the administrator was later found to be without the right to
intervened in the settlement of the estate (no longer an interested
party), is this a ground for removal?
No, the fact that the administrator was later held to be without the
right to intervene in the settlement of the estate as an heir id not a
ground for his removal as such administrator since even as stranger
can be appointed as such.
Can anyone be compelled to act as administrator?
No one can be compelled to act as administrator in any proceedings.
But as long as one has accepted the appointment of administrator
qualified as such and led the CT and the heirs to believe that he
would perform the duties as such and protect and serve the
interests of said heirs and other interested parties, he is bound to
comply with his duties. If later he finds it difficult or impossible to
continue with his administration, he should at least file an inventory
of the properties he had administered and render an accounting of
his administration, particularly of the produce, fruits and income of
the properties under administration and then ask the CT that he be
relieved of his duties (Ledesma vs. Enriquez)
WALAN p 108 POTA
If the administrator resigns, must his resignation be accepted by the
CT?
The resigning officer must get approval from the CT.
What must the administrator do upon resigning?
He must render an accounting
What are the steps necessary to enable an administrator to resign?
A resigning administrator who will resign will :
1. The administrator must file a resignation letter to the CT
2. The administrator must make an inventory of the properties in
his possession
What is the operative act to make effectual the resignation of the
administrator?
The resignation must first be accepted by the CT.
SEC 3. Acts before revocation, resignation, or removal to be valid.
The lawful acts an executor or administrator before the revocation of his
letters testamentary or of administration, or before his resignation or
removal,
shall have the LIKE VALIDITY AS IF THERE HAD BEEN NO SUCH revocation,
resignation, or removal.
What is the effect of the revocation of the letters testamentary or
administration or the resignation or removal of the executor or
administrator?
The effect of the revocation of the letters testamentary or of
administration or the resignation or removal of the executor or
administrator is to terminate the authority of the executor or
administrator. But the lawful acts of the executor or administrator
done in good faith prior to such will be protected and held valid as if
there had been no such revocation, resignation or removal.
As soon was an administrator is removed, what can/ cannot do?
The administrator cannot perform acts of administration such as
contraction with other persons as administrator nor can he apply to
OROSA NOTES
the CT to have the transactions approved between the estate and
the 3rd persons. With respect to the right of an administrator to dispose of real
properties of the estate assuming the administrator is removed,
What is the effect of the removal of the administrator insofar as what is the right of the new administrator to continue the
creditors are concerned? transaction (eg. Pending negotiation for mortgage)
The administrator cannot bring any suit nor be made a defendant to The new administrator must continue the negotiation initiated by the
any suit. first administrator.

What is the effect when 1 administrator is removed in cases where Must the new executor or administrator secure another authority
there are 2 administrators of the estate? from the CT?
The remaining administrator becomes the administrator of the whole Yes
estate unless a new co-adminstrator is appointed.
Must there be hearing ?
SEC 4. Powers of new executor or administrator. Renewal of No hearing is required if the new administrator continues the acts of
license to sell real estate. the administration but he must secure authority form the CT to
The person to whom letters testamentary or of administration are continue these negotiations.
granted
AFTER THE REVOCATION OF FORMER LETTERS, or the death, resignation, or
removal of a former executor or administrator,
shall
1. have the like powers to COLLECT AND SETTLE THE ESTATE NOT
ADMINISTERED that the former executor or administrator had, and
2. may PROSECUTE OR DEFEND ACTIONS COMMENCED by or against the
former executor or administrator, and
3. have EXECUTION ON JUDGMENTS
recovered in the name of such former execution or administrator.
An authority granted by the CT to the former executor or administrator
for the SALE OR MORTGAGE OF REAL ESTATE MAY BE RENEWED IN FAVOR OF SUCH
PERSON WITHOUT FURTHER NOTICE OR HEARING.

What does Sec 4 Rule 82 of the Rules of CT provide?

Sec 4, Rule 82 provides for the powers of a new administrator or
executor who has been appointed as such due to the revocation of
former letter or death, resignation or removal of the former
executor or administrator to wit:
1. To have the like powers to collect and settle the estate not
administered that the former executor or administrator had,
2. To prosecute or defend actions commenced by or against the
former executor or administrator,
3. To have execution on judgments recovered in the name of such
former execution or administrator.
However, before a new executor or administrator may exercise the
power to SELL OR MORTGAGE REAL ESTATE which power had been
granted to the former executor or administrator, the same must be
RENEWED in favor of the new executor or administrator. In renewing,
further NOTICE AND HEARING IS NO LONGER NECESSARY.
OROSA NOTES
RULE 83
INVENTORY AND APPRAISAL ; PROVISION FOR SUPPORT OF FAMILY
SEC 1. Inventory and appraisal to be returned within three
months.
When 3 months after his appointment
every executor or administrator
shall return to the CT a TRUE INVENTORY AND APPRAISAL of all the real and
personal estate of the deceased which has COME INTO HIS POSSESSION OR
KNOWLEDGE.
In the appraisement of such estate, the CT may order one or more of the
inheritance tax appraisers to give his or their assistance.
What is a DUTY of every executor or administrator?
Under this provision, it is the duty of the executor or administrator
to present an inventory of the real estate and all the goods chattels,
rights and credits of the deceased which have come into his
possession or to his knowledge. As to property which came to his
knowledge but not into his possession, he may bring such action as
he may deem necessary for the purpose of obtaining the possession
thereof (Chua Tan vs. del Rosario)
What is the purpose of the inventory and appraisal of the estate?
The purpose of the inventory and appraisal of the estate of the
decedent is to aid the CTs in revising the accounts and determining
the liabilities of the executor or administrator in making a final and
equitable distribution of the estate and otherwise facilitate the
administration of the estate.
Is the inventory and appraisal CONCLUSIVE OF THE VALUE of the estate?
No. The inventory and appraisal, when regularly returned, while
generally treated as prima facie evidence of the value of the estate,
is not conclusive either as against 3 rd persons or the executor or
administrator. Even a decree of the CT accepting the inventory will
not be conclusive upon the executor or administrator.
Who determines what property should be included in the inventory?
For the purpose of determining whether a certain property should or
should not be included in the inventory, the probate CT may pass
upon the title of such properties.
What is the nature of such determination by the probate CT?
The probate CT can only make a prima facie determination of
whether a certain property claimed by other persons is considered
part of the assets of the estate for the purpose of determining
whether it should be included or excluded from the inventory. Said
determination is NOT FINAL IN NATURE and can not prejudice the rights
of interested parties in a proper and separate action to determine
the actual title.
Why is such determination by the probate CT provisional in
character?
Under these rules, the jurisdiction of probate CTs relates only to
matters having to do with the settlement of the estates and probate
of will of deceased persons, appointment and removal of guardians
and trustees, and powers, duties and rights of guardians and wards,
trustees and cestui que trust etc. As may bee seen, the law does not
extend the jurisdiction of a probate CT to the determination of
questions of ownership that arise during the proceeding. Such
questions must be submitted to the CT in the exercise of its general
jurisdiction (Adapon vs. Maralit)
However, the mere fact that one of the parties is the executor or
administrator of the estate does not confer upon the probate CT
exclusive jurisdiction to decide all questions that may arise between
said executor or administrator and 3rd persons as to the title of a
specific property.
What is the DUTY of the executor or administrator with respect to
INVENTORY AND APPRAISAL?
Under Rule 83, it is the duty of the executor or administrator to
present an inventory of the real estate and of all the goods, chattels,
rights and credits of the deceased which have come into his
possession or to his knowledge. As to property which came to his
knowledge but not into his possession, he may bring such action as
he may deem necessary for the purpose of obtaining possession
thereof (Chua Tan vs. del Rosario)
What is the purpose of requiring the filing of an inventory?
The purpose of the inventory and appraisal of the estate of the
decedent is to aid the CTs in revising the accounts and determining
the liabilities of the executor or administrator in making a final end
equitable distribution of the estate and otherwise facilitate the
administration of the estate.
Does an inventory need the APPROVAL OF THE CT?
In general no. CT approval is needed only when the inventory is
questioned.
X is a surety of Y. X undertakes to pay the obligation of Y in case the
latter defaults. X died. C the executor of X is now being compelled to
pay under the suretys bond. Is the amount of obligation paid by X
OROSA NOTES
demandable from Y being principal and is such amount to be made
part of the inventory?
It depends. If the estate of X had already paid the principal, then
the amount paid will form part of the estate.
What is the NATURE OF THE POWER of the CT handling the testate or
intestate proceedings to determine ownership?
It is only PROVISIONAL
Can questions regarding title to property de determined in a testate
or intestate proceeding?
No. It has however been held that for the purpose of determining
whether a certain property should or should not be included in the
inventory, the probate CT may pass upon title thereto, but such
determination is not conclusive and is subject to the final decision in
a separate action to be instituted between the parties.
SEC 2. Certain articles not to be inventoried.
1. The WEARING APPAREL of
the surviving husband or wife and
MINOR children,
2. the MARRIAGE BED AND BEDDING, and
3. such provisions and other articles as will necessarily be consumed in
the SUBSISTENCE of the family of the deceased, under the direction of
the CT,
shall NOT BE CONSIDERED AS ASSETS, nor administered as such, and
shall NOT BE INCLUDED IN THE INVENTORY.
What should not be included in the inventory?
Following are not included:
1. The wearing apparel of the surviving spouse
2. The wearing apparel of the minor children,
3. The marriage bed and bedding
4. Provisions and other articles as will necessarily be consumed in
the subsistence of the family of the deceased
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 CT,
such allowance as are provided by law.
Under Sec 3 Rule 83, who are entitled to allowance during the
settlement of the estate?
Under this provision, the following are entitled to allowance during
the settlement of the estate.
1. The widow of the deceased.
2. The minor children of the deceased
3. The incapacitated children of the deceased
May allowance be granted when the liabilities of the estate exceeded
the assets of the estate of the decedent?
No. When the liabilities of the estate exceed the assets of the estate
of the decedent and the surviving spouse had not contributed any
property to the marriage, the latter cannot be granted support nor
her minor children for that matter, pending the liquidation of the
estate because said support, having the character of an advance
payment to be deducted from the respective share of each
participant, is without legal basis when there is no property to be
partitioned (Moore & Sons Co. vs Wagner)
Can children of the deceased who are not minor nor incapacitate be
granted allowance or support during the settlement of the estate?
Yes. While the Rules of CT limit allowances to the widow and minor
or incapacitated children of the deceased, Art 133 of the Family
Code permits allowances to the surviving spouse and his/her
children without distinction. Since the provision of the Civil Code, a
substantive law, gives the surviving spouse and children the right to
receive support during the liquidation of the estate of the deceased,
such right cannot be impaired by Rule 83 Sec 3 of the Rules of CT
which is merely procedural law (Santero vs. CFI of Cavite)
Article 133 of the Family Code provides that from the common mass
of property, support shall be given to the surviving spouse and to
the children during the liquidation of the inventories property ands
until what belongs to them is delivered; but from this shall be
deducted that amount received for support which exceed the fruits
or rents pertaining to them.
Should the surviving spouse be legitimate?
The SPOUSE MUST BE LEGITIMATE, not merely a common law spouse.
Are grandchildren entitled to such allowance pending the settlement
of the estate?
OROSA NOTES
Neither the provision of the Rules of CT nor the Civil Code obviously
include grandchildren as among those who may be granted
allowance during the settlement of the estate.

Who determines what amount the widow, minor or incapacitated

children should receive?
The CT has jurisdiction to determine the respective amounts

What are the factors considered by the CT in determining what

amount is received?
Such
1. Financial status of the family
2. Probable value of the estate.
3. The primary consideration is the solvency of the estate.

Can the surviving spouse be granted support from the estate IN ALL
CASES? Why?
No. It has been held that when the liabilities exceed the assets of
the deceased spouses intestate estate and that his widow has not
contributed any property to the marriage, she cannot be granted
support pending the liquidation of the intestate estate on the ground
that such support, having the character of an advance payment to
be deducted form the respective share of each participant, would
have no legal basis when there is no property to be partitioned.
(Moore & Sons Mercantile C. vs. Wagner)

When does DELAY in the giving of allowance commence?

It commencer AFTER DEMAND. No demand no delay.

Are grandchildren entitled to receive allowance under this provision?

No. The rules does not apply to grandchildren.
OROSA NOTES
RULE 84
GENERAL POWERS AND DUTIES
OF EXECUTORS AND ADMINISTRATORS
SEC 1. Executor or administrator to have access to partnership
books and property; How right enforced.
The executor or administrator of the estate of a deceased PARTNER shall at
all times have ACCESS TO, and
may EXAMINE AND TAKE COPIES of,
books and papers relating to the partnership business, and
may EXAMINE AND MAKE INVOICES of
the property belonging to such partnership; and
the surviving partner or partners, on request,
SHALL EXHIBIT to him all such books, papers, and property IN THEIR HANDS
OR CONTROL.
On the WRITTEN APPLICATION of such executor or administrator, the CT
having jurisdiction of the estate may order any such surviving partner or
partners to freely permit the exercise of the rights, and to exhibit the
books, papers, and property, as in this section provided, and may PUNISH
ANY PARTNER failing to do so for CONTEMPT.
SEC 2. Executor or administrator to keep buildings in repair.
An executor or administrator shall maintain in tenantable repair the
houses and other structures and fences belonging to the estate, and
deliver the same in such repair to the heirs or devisees when directed so
to do by the CT.
SEC 3. Executor or administrator to retain whole estate to pay
debts, and to administer estate not willed.
An executor or administrator shall have the RIGHT TO THE POSSESSION AND
MANAGEMENT OF THE REAL AS WELL AS THE PERSONAL ESTATE of the deceased
SO LONG AS IT IS NECESSARY FOR THE PAYMENT of the debts and the expenses
of administration.
What are the general powers and duties of an executor or
administrator?
Executor or administrators general powers are :
1. The executor or administrator of the estate of a deceased
partner shall at all times have access to, and may examine and
take copies of, books and papers relating to the partnership
business, and may examine and make invoices of the property
belonging to such partnership.
2. The executor or administrator shall maintain in tenantable
repair the houses and other structures and fences belonging to
the estate, and deliver the same in such repair to the heirs or
devisees when directed so to do by the CT.
3. An executor or administrator shall have the right to the
possession and management of the real as well as the personal
estate of the deceased so long as it is necessary for the
payment of the debts and the expenses of administration.
In general, what acts may the executor administrator validly
perform?
The executor or administrator has the power of administering the
estate for the purposes of liquidation and distribution. He may
therefore exercise all acts of administration without special authority
of the CT.
Can the executor or administrator lease any of the properties of the
estate under his administration? Does he need approval of the CT to
do so?
Yes. The contract of lease, being a mere act of administration, could
validly be entered into by the executor or administrator within his
powers of administration even without the CTs previous authority.
(de Hilado vs. Nava)
May the probate CT interfere or annul such contract of lease if
entered into without its intervention?
No. The probate CT has no power to annul or invalidate the contract
in the settlement proceedings wherein it had no jurisdiction over the
person of the lessee. A separate ordinary action is necessary to that
effect. ( de Hilado vs. Nava.)
If the lease is to be recorded in the Registry of Property, is judicial
approval necessary?
No. While it is true that under Art 1647 of the Civil Code, when lease
is to be recorded in the Registry of Property, it cannot be constituted
without special authority as far as the husband is concerned with
respect to the wifes paraphernal real estate, the father or the
guardian as to the property of the minor or wards and manager
without special power. Nevertheless, Sec 3 Rule 85 grants the
executor or administrator the power of administering the estate of
the deceased and he may exercise all acts of administration without
special authority of the CT and this includes leasing property
whether or not it is to be recorded in the Registry of Property (San
Diego vs. Nombre)
If the lease if for a period exceeding 1 year, is judicial approval
necessary?
OROSA NOTES
No. Under Article of the Civil Code on Agency, special power of
attorney is necessary to lease any real property to another person
for more than 1 year. But an executor an executor or administrator
is not an agent. While it may be admitted that the duties of a
judicial administrator and an agent are in some respects identical,
the provisions on agency should not amply to a judicial
administrator. A judicial administrator is appointed by the CT. He is
not only the representative of said CT, but also the heirs and the
creditors of the estate. A judicial administrator before entering into
his duties, is required to pose a bond. These circumstances are not
true in the case of an agency. The agent is only answerable to his
principal. The protection which the law gives the principal, in limiting
the powers and rights of the agent, stems form the fact that control
by the principal can only be through agreements, whereas the acts
of a judicial administrator are subject to specific provision of law and
order of the appointing CT (San Diego vs. Nombre)
Can the executor or administrator deal with himself as an individual
(auto contracts) in any transaction concerning property of the
estate?
No. An executor or administrator is not permitted to deal with
himself as an individual in any transaction concerning trust property.
An executor or administrator holds the property of the estate as a
trustee. While There is no express provision of law prohibiting an
executor or administrator from appointing himself as agent,
nevertheless, such should not be permitted in view of the fiduciary
relationship that they occupy with respect to the heirs of the
decease and their responsibilities towards the probate CT. A
contrary ruling would open the door to fraud and maladministration,
and once the harm is done, it might be tool late to correct it (Jaroda
vs Cusi)
What acts can the executor or administrator not perform validly?
The following are not valid acts of executor or administrator:
1. The executor or administrator cannot buy property under his
administration as it is prohibited under Art 1491 (3) of the Civil
Code.
2. He likewise cannot borrow money even if it is for the benefit of
the estate.
3. Nor can he continue the business in which the decease was
engaged in at the time of his death without order of the CT as
his duty is to settle the estate as soon s possible and not to
prolong his administration.
4. Furthermore, he has no authority to speculate with funds of the
estate or place them where they may not be withdrawn at once
by order of the CT eve if it means depositing said funds in a
current account which has low or no interest instead of a fixed
account with a high rate of interest.
What is the extent of powers of an executor or administrator?
An executor or administrator has all the power necessary for the
administration of the estate and which power he can exercise
without leave of CT. The constitution of a lease over property of the
state is an act of administration and leave of CT is not required. Any
interested party who desires to impugn the same must do so in an
ordinary civil action as the probate CT has no jurisdiction over the
lessee. It has been broadly stated that an administrator is not
permitted to deal with himself as an individual in any transaction
concerning trust property. The executor or administrator cannot buy
property under his administration nor can he borrow money without
authority of the CT, even if it is for the benefit of the estate. He has
no authority to speculate with funds under his custody, or place
them where they may not be withdrawn at once by order of the CT.
The deposit by an administrator of the funds of the estate in a
current account with a bank, instead of a fixed account at a high
rate of interest, with a view to having such funds subject to
withdrawal at a moments notice, is not improper and he is not
answerable for the low rate of interest thus obtained. An
administrator, without order of the CT, has no authority to continue
the business in which the deceased was engaged in at the time of
his death. If he does so with the funds of the estate, he is
chargeable with all the losses incurred thereby without allowing him
to receive the benefits of any profits that he may make. The
administrator of a deceased spouse shall also administer, liquidate
and distribute the community property because the estate of a
deceased spouse consists not only of the exclusive properties of the
decedent, but also of the assets of the conjugal partnership, if
any, which may pertain to the deceased.
What is the care require in the management of the estate by the
executor or administrator?
The law does not impose upon an executor or administrator a high
degree of care in the administration of the estate but an ordinary
and usual care for the want of which he is personally liable.
When is an administrator entitled to the possession of the property
of the deceased?
The executor or administrator shall have the right to take
possession of the properties of the deceased so long as it is
necessary for the payment of the debts and expenses of
administration. When there are not debts to be paid, the estate
should pass to the heirs.
OROSA NOTES
When is property of an executor or administrator answerable for his
debts?
In case of death of an executor or administrator who has contracted
debts, his own property which he left at death is directly liable for
payments of such debts. The creditor may direct his action against
said executors or administrators heirs. For until all the creditors of
a deceased person have been paid, there can be no net inheritance
divisible among the heirs.

What if the lease contract exceed 1 year?

If the lease contract exceed 1 year, the same is no longer
considered a mere act of administration and leave of CT should be
required. A view is held however that the aforesaid provision of Art
1878 of the Civil Code on Agency should not apply to leases
enforced into any executor or administrator under the theory that
they represent not only the estate but also parties interested
therein, that they are required to file a bond and that their acts are
subject to specific provision of the law and orders of the probate CT,
which circumstances are not true with respect to agents.
OROSA NOTES
RULE 85
ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS
SEC 1. Executor or administrator chargeable with all estate and
income.
Except as otherwise expressly provided in the following sections,
every executor or administrator is CHARGEABLE in his account
with the whole of the estate of the deceased which has COME INTO HIS
POSSESSION,
at the value of the appraisement contained in the inventory;
with all the interest, profit, and income of such estate; and
with the PROCEEDS of so much of the estate as is sold by him,
at the price at which it was sold.
What is the extent of an executors or administrators
accountability?
The executor or administrator is accountable for the whole of the
estate of the deceased which has come into his possession but not
for the estate which he has never possessed.
As distinguished from his duty to present an inventory, the executor
or administrator is accountable for correct and complete inventory
not only of all the property of the estate which has come to his
possession but also all the property which has come to his
knowledge.
When is the executor or administrator accountable even for
properties he haS NEVER POSSESSED?
If the executor or administrator FAILED TO TAKE POSSESSION of the
property THROUGH HIS FAULT, as where through negligence, no action
has been brought for recovery; he is accountable for the property
lost.
If the executor is in Manila and the real property is in Cebu, how can
the executor take possession?
The executor can take possession of the property in Cebu by
annotation of lis pendens on the TCT of the real property. Generally,
however, the CT already has jurisdiction over the real property, but
the annotation of lis pendens would serve as further protection.
SEC 2. Not to profit by increase or lose by decrease in value.
No executor or administrator shall
PROFIT by the increase, or
SUFFER LOSS by the decrease or destruction,
WITHOUT HIS FAULT, of any part of the estate.
He must account for the excess when he sells any part of the estate for
more than appraisement, and if any is sold for less than the
appraisement, he is not responsible for the loss, if the sale has been
justly made.
If he settles any claim against the estate for LESS THAN ITS NOMINAL VALUE
he is entitled to charge in his account only the amount he actually paid
on the settlement.
What is the extent of the accountability of the executor or
administrator?
The executor or administrator is chargeable with the estate in such
conditions as it is found and not in that as the heirs and creditors
desire it to be. While on the one hand he shall not profit by the
increase of the estate, on the other hand, he shall not be held liable
for any decrease which the estate, without his fault, might have
sustained. In addition, it is the duty of the executor or administrator
to handle and marshal the assets of the estate in a business-like
manner, and he is liable for any unreasonable or unnecessary delay
in the settlement and closing of the estate. Of course, the law does
not impose upon the administrator a high degree of care in the
administration of the estate, but is does not impose upon him
ordinary and usual care for want of which he is personally liable.
Is the administrator liable for loss or personal properties under
administration through fortuitous event?
No. An administrator in an administration proceeding is not liable for
the loss by fortuitous event, of property, under his administration in
the absence of proof that said loss was due to his negligence
(Garcia vs. Escudero)
How does one make the executor laible?
The executor could be made liable by GOING AGAINST THE BOND.
How does one go against the bond filed by the executor?
One could go against the bond by applying to the CT which granted
the letters testamentary for the application of the bond.
SEC 3. When not accountable for debts due estate.
No executor or administrator shall be accountable for debts due the
deceased which remain UNCOLLECTED WITHOUT HIS FAULT.
What kinds of debts are contemplated Sec 3 Rule 85?
OROSA NOTES
The debts contemplated by Sec 3 Rule 85 are confined to MONEY
CLAIMS.
If there is a MORTGAGE TO BE FORECLOSED and the administrator was
not able to foreclose the same and a loss to the estate results, is
this the debt contemplate by Sec 3 Rule 85?
No, the debts contemplate by Sec 3 Rule 85 are confined to money
claims.
Is the executor or administrator accountable for uncollected debts?
The executor or administrator shall not be accountable for debts due
the deceased which remains uncollected without his fault.
However, whether the debts remain uncollected without the
executors or administrators fault MUST BE SHOWN BY HIM,
the PRESUMPTION being that the debt COULD HAVE BEEN COLLECTED for
such is the natural course of things, and in the absence of proof to
the contrary, he is accountable therefore.
Is the executor or administrator accountable for debts which are
uncollected due to his fault?
Yes because there is a prima facie presumption of fault on his part.
SEC 4. Accountable for income from realty used by him.
If the executor or administrator
USES OR OCCUPIES any part of the REAL ESTATE HIMSELF
he shall ACCOUNT for it
as may be AGREED upon between him and the parties interested, or
ADJUSTED BY THE CT with their assent; and
if the parties do not agree upon the sum to be allowed, the same may be
ascertained by the CT,
whose determination in this respect shall be FINAL.
Can an administrator be a lessee of the estate he is administering?
Yes. By virtue of Sec 4 Rule 85. There is however a qualification to
this rule. If the administrator was the original lessee before he was
named as administrator, the lease is perfectly valid. However, if the
lease was constituted during the pendency of his administration,
then it could not be allowed because it would amount to self-
dealing. This situation would now come within the realm of auto-
contracts. Furthermore, the woriding of Sec 4 Rule 85 is in the
present tense as can be gleamed for the use of the word uses or
occupies
Reconcile the provision of the Civil Code (Arts 1491 and 1646) with
this section.
Contracts for occupation should no be for lease. Contracts of
bailment should not be between the admisntrator and himself as for
the payment of a debt to him.
SEC 5. Accountable if he neglects or delays to raise or pay money.
When an executor or administrator
NEGLECTS OR UNREASONABLY DELAYS to raise money,
by collecting the debts or selling the real or personal estate of the
deceased, or
NEGLECTS TO PAY over the money he has in his hands,
AND the VALUE OF THE ESTATE is thereby
lessened or
unnecessary cost or
interest accrues, or
the persons interested suffer loss
the same shall be deemed WASTE AND THE DAMAGE sustained may be
CHARGED AND ALLOWED AGAINST HIM in his account, and
he shall be liable therefor on his BOND.
What is the liability of an executor or administrator who neglects or
delay to raise or pay money?
When an executor or administrator neglects or unreasonably delays
to raise money, by collecting debts or selling real or personal estate
of the deceased, or neglects to pay over the money he has in his
hands, and the value of the estate is thereby lessened or
unnecessary or interest accrues, or the person interested suffers
loss, the same shall be deemed waste and the damage sustained
may charge and allowed against his account, and he shall be liable
therefore on his bond.
Who has the right to run after the executor or administrator?
The heirs, devisees, legatees and the creditors have the right to run
after the executor or administrator.
SEC 6. When allowed money paid as costs.
The AMOUNT PAID BY an executor or administrator FOR COSTS AWARDED
AGAINST HIM shall be allowed in his administration account,
OROSA NOTES
UNLESS it appears that the action or proceeding in which the costs are
taxed WAS PROSECUTED OR RESISTED WITHOUT JUST CAUSE, AND NOT IN GOOD
FAITH.
What costs may the executor or ADMINISTRATOR CHARGE AGAINST THE
ESTATE?
Generally the costs charged or allowed against an executor or
administrator in actions brought or prosecuted by or against him
should be paid out of the estate of the deceased, unless he did not
act in good faith. In other words, they are costs of litigation.
What costs may not be charged by the executor or administrator
against the estate?
In action brought by the executor or administrator which is more for
his personal benefit than that of the estate, as when he contests the
allowance of a will or is suing for attorneys fees, or brings litigation
for the deliberate purpose of defrauding heirs for his own benefit,
costs should be personally borne by him.
How would money paid as costs be allowed?
These costs must have been incurred in good faith.
Are attorneys feed paid by the administrator to his own lawyer who
is acting in behalf of the administrator chargeable as costs of
administration?
No, because attorneys fees are considered part of administration
itself, they are incurred in the natural course of administration.
Could it be argued that the services of an attorney be considered as
necessary expense?
It depends. If the services of counsel were availed of for collecting
debts, then it could be considered as a necessary expense. If is was
however, incurred for helping the administrator, then it is not a
necessary expense.
SEC 7. What expenses and fees allowed executor or
administrator. Not to charge for services as attorney.
Compensation provided by will controls unless renounced.
An executor or administrator shall be allowed the NECESSARY EXPENSES
in the care, management, and settlement of the estate, and
for his services, P4 per day for the time actually and necessarily
employed, or a commission upon the value of so much of the estate as
comes into his possession and is finally disposed of by him in the
payment of debts, expenses, legacies, or distributive shares, or by
delivery to heirs or devisees, of two per centum of the first five thousand
pesos of such value, one per centum of so much of such value as
exceeds five thousand pesos and does not exceed thirty thousand pesos,
one-half per centum of so much of such value as exceeds thirty thousand
pesos and does not exceed one hundred thousand pesos and one-quarter
per centum of so much of such value as exceed one hundred thousand
pesos. But in any special case, where the estate is large, and the
settlement has been attended with great difficulty, and has required a
high degree or capacity on the part of the executor or administrator, a
greater sum may be allowed. If objection to the fees allowed be taken,
the allowance may be re-examined on appeal.
If there are 2 OR MORE EXECUTORS OR ADMINISTRATORS, the compensation
shall be apportioned among them by the CT according to the services
actually rendered by them respectively.
When the executor or administrator IS AN ATTORNEY, he shall NOT CHARGE
against the estate ANY PROFESSIONAL FEES for legal services rendered by
him.
When the deceased BY WILL MAKES SOME OTHER PROVISION FOR THE
COMPENSATION OF HIS EXECUTOR, that provision shall be a full satisfaction for
his services
UNLESS by a WRITTEN INSTRUMENT FILED IN THE CT
HE RENOUNCES ALL claim to the compensation provided by the will.
What expense and fees are allowed to the executor or
administrator?
The executor or administrator is allowed:
1. The necessary expenses in the care, management and
settlement of the estate
2. Php 4/day for his services or commission upon the value of so
much of the estate has come into his possession and disposed
of him in payment of debts, expenses, legacies or distributive
shares or by delivery to the heirs of the deceased.
What are necessary expenses of administration?
OROSA NOTES
Necessary expenses of administration are such expenses as are
entailed for the preservation and productivity of the estate and for
its management for the purpose of liquidation, payment of debts
and distribution of the residue among the persons entitled thereto.
Are expenses on the anniversary of the death of the deceased
considered as necessary expenses of administration?
Expenses incurred on the occasion of the anniversary of death of the
deceased cannot be considered a part of funeral expenses or the
erection of a mausoleum which forms part of the sepulture of the
deceased and therefore cannot be necessary expenses of
administration.
What other expenses cannot be considered as necessary expenses
of administration?
Other Expenses which cannot be considered as necessary expenses
are :
1. Expenses incurred by a presumptive heir for her appearance
and that of her witnesses at the trial to oppose the probate of
the alleged will
2. Expenses for the settlement of the question as to who are
entitled to the estate left by the deceased.
3. Expenses incurred by an executor or administrator to procure a
bond.
However, expenses for the renovation and improvement of the
family resident, incurred to preserve the family home and to
maintain the familys social standing in the community, are
allowable as legitimate administration expenses of the estate of the
deceased. But the living expenses of an heir occupying the family
residence are not as legitimate administration expenses of the
estate of the deceased.
When may attorneys fees be allowed?
Attorneys feed may be allowed as expenses of administration when
the attorneys services have been rendered to the executor or
administrator to assist him in the execution of his trust.
Who is directly liable for the payment of attorneys fees when they
are due?
Since the service for which attorneys feed are claimed are supposed
to have been rendered to the executor or administrator to assist him
in the execution of his trust, the liability for the payment of such
feed rests on the executor or administrator. The attorney cannot
hold the estate directly liable for his fees. But if said fees were paid
by the executor or administrator and are beneficial to the estate and
reasonable, he is entitled to reimbursement from the estate (Uy
Tioco vs. Imperial & Panis)
In other words, it is the client who must shoulder the attorneys
fees. Furthermore, it is subject to certain standards to wit:
1. it must be reasonable, that is to say they must have bearing on
the importance of the subject matter in controversy
2. the extent of services rendered
3. professional standing of the lawyer.
Can the executor or administrator seek reimbursement for all
attorneys fees incurred by him?
Reimbursement can be had only of the fees paid were beneficial and
reasonable. The estate cannot be held liable for the costs of counsel
fees arising out of the litigation between the beneficiaries thereof
among themselves or in the protection of the interests of particular
persons, or in the favor of an administrator who brings litigation for
his own benefit and for the purpose of defrauding the heirs
(Dacanay vs. Hernandez)
Is the executor or administrator entitled to compensation for his
services?
The executor or administrator is entitled for his services to a per
diem of Php 4 or to a commission. He is entitled to either but not
both. However, he may be denied compensation for his services
where the prolongation of the settlement of the estate is due
entirely to his efforts to defraud the heirs (Dacanay vs. Hernandez)
or where due to his neglect, the administration has been too
expensive.
What is the basis of per diem compensation?
The rules allow the executor or administrator to collect for his
services as such the sum of Php 4 for every day actually and
necessarily spent by him in the administration and care of the estate
of a deceased person, not for every act or task he might perform,
even if it were to take only a few minutes to do so.
What is the basis of the compensation?
The commission is based upon the value of so mush of the estate as
comes into his possession and is finally disposed of by him in the
payment of debts, expenses, legacies or distributive shares or by
delivery to the heirs or devisees. Accordingly, the amount of
commission is as follows:
1. 2% of the first Php 5,000
2. 1% of more than Php 5,000 but less than or equal to Php
30,000
OROSA NOTES
3. % of more than Php 30,000 but less than or equal to Php
100,000
4. % of more than Php 100,000

May a greater sum be allowed the executor or administrator than

the fixed per diem or commission?
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, the
amount of an executors or administrators fee is largely in the
discretion of the probate CT, which shall not be disturbed on appeal,
except in cases of abuse thereof.

If the executor or administrator is a lawyer, is it sufficient ground for

increasing his compensation?
No. Under Sec 7 Rule, when the executor or administrator is an
attorney, he shall not charge against the estate any professional
fees for legal services rendered by him. The rule is therefore clear
that he is allowed only the necessary expenses and not attorneys
fee. His compensation is fixed by the rules but such compensation is
in the nature of commissions and never attorneys fees (Lacson vs.
Reyes)

What is the effect of an agreement between the executor or

administrator and the interested parties as to the formers
compensation?
Although the compensation may be agreed upon by mutual consent
among the parties involved, such is not a valid and binding contract
continues throughout the whole administration of the estate. It is
always subject to change and the approval of the CT and to either
an increase or decrease as conditions might warrant. At all times,
the compensation of the executor or administrator is a matter
largely to the discretion of the probate CT (Rosenstock vs. Elser)
OROSA NOTES
Rule 89 Continued It can be done either personally or by mail

SEC 7. Regulations for granting authority to sell, mortgage, or Is publication a mandatory requirement?
otherwise encumber estate. No, it is left to the discretion of the CT
The CT having jurisdiction of the estate of the deceased may authorize
the executor or administrator to sell personal estate, or to sell, What kind of sale should be made in public or private?
mortgage, or otherwise encumber real estate; in cases provided by these The primary consideration should be what kind of sale would be
rules and when it appears necessary or beneficial, under the following more beneficial to the heirs, devisees and legatees and other
regulations: interested persons. A private sale would apparently be more
a. The executor or administrator shall file a written petition setting beneficial since the parties would be able to negotiate for the best
forth the debts due from the deceased, the expenses of possible terms and to stipulate them freely.
administration, the legacies, the value of the personal estate, the
situation of the estate to be sold, mortgaged, or otherwise When does the sale take effect?
encumbered, and such other facts as show that the sale, mortgage, A sale of land under administration is not effective until it has been
or other encumbrance is necessary or beneficial; approved by the CT. Although leave of CT has been obtained, a sale
b. The CT shall thereupon fix a time and place for hearing such which has not been approved and which materially varies from the
petition, and cause notice stating the nature of the petition, the authority granted cannot be made basis of an action by the
reason for the same, and the time and place of hearing, to be given purchaser for specific performance.
personally or by mail to the persons interested, and may cause such
further notice to be given, by publication or otherwise, as it shall When may the probate CT allow the administrator or executor to sell
deem proper; real properties belonging to the estate?
c. If the CT requires it, the executor or administrator shall give an The rules of CT does not deprive the probate CT the power to grant
additional bond, in such sum as the CT directs, conditioned that license to the administrator or executor to sell personal or real
such executor or administrator will account for the proceeds of the property of the deceased even if there be an obligation to it by an
sale, mortgage, or other encumbrance; heir, devisee, or legatee provided that such license to sell will
d. If the requirements in the preceding subdivisions of this section redound to the benefit of the interested parties and hasten the
have been complied with, the CT, by order stating such compliance, winding up or final settlement of the estate. (Vda. De Celis vs. vda
may authorize the executor or administrator to sell, mortgage, or dela Santa)
otherwise encumber, in proper cases, such part of the estate as is
deemed necessary, and in case of sale the CT may authorize it to be
public or private, as would be most beneficial to all parties
concerned. The executor or administrator shall be furnished with a
certified copy of such order;
e. If the estate is to be sold at auction, the mode of giving notice of
the time and place of the sale shall be governed by the provisions
concerning notice of execution sale;
f. There shall be recorded in the registry of deeds of the province in
which the real estate thus sold, mortgaged, or otherwise
encumbered is situated, a certified copy of the order of the CT,
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.

How should service of notice be made?

OROSA NOTES
SEC 8. When a CT may authorize conveyance or realty which
deceased contracted to convey; Notice; Effect of deed.
Where the deceased was IN HIS LIFETIME
UNDER CONTRACT, BINDING IN LAW, to deed REAL PROPERTY, or an interest
therein
the CT having jurisdiction of the estate may, on application for that
purpose
authorize the EXECUTOR OR ADMINISTRATOR TO CONVEY such property
according to such contract, or with such modifications as are agreed
upon by the parties and approved by the CT;
and if the contract is to CONVEY REAL PROPERTY to the executor or
administrator, the clerk of the CT shall execute the deed.
The deed executed by such executor, administrator, or clerk of CT shall
be as EFFECTUAL TO CONVEY the property AS IF EXECUTED BY THE DECEASED IN
HIS LIFETIME;
BUT no such conveyance shall be authorized
1. UNTIL NOTICE OF THE APPLICATION FOR THAT PURPOSE HAS BEEN GIVEN
PERSONALLY OR BY MAIL TO ALL PERSONS INTERESTED, and
2. such further notice has been given, BY PUBLICATION OR OTHERWISE,
as the CT deems proper;
3. 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.
What is the essential requirement for the validity of the conveyance
of the property held in trust?
The authorization given by the probate CT to the person for whose
use and benefit it was held can be given only after notice of the
application for that purposee has been given to all persons
interested. Where no notice is given, the order authorizing the
conveyance and the conveyance itself are void.
Can the conveyance under this section be made even if creditors of
the decedent would be affected?
Yes, since the properties contemplated in this section do not form
part of the estate of the deceased who merely held the same in
trust.
What is the nature of these regulations?
These regulations are mandatory in character and failure to comply
withy them will have the effect of rendering the order authorizing
the sale of encumbrance void as well as the sale or encumbrance
made in pursuance thereof. (De Jesus vs. De Jesus)

What is the presumption behind this provision?

The provision presupposes that there is no controversy in the
contract contemplated therein and that the assets of the estate will
not be reduced to the extent of depriving the creditor of full
payment of his claim or his just dividend, if there are objections, the
remedy of the person seeking the execution of the contract is an
ordinary and separate action to compel the same needless to say, if
there is a controversy or the creditors would be deprived of their
claims, then there would be no authorization.

SEC 9. When CT may authorize conveyance of lands which

deceased held in trust.
Where the deceased in his lifetime held real property
in trust for another person
the CT may, after notice given as required in the last preceding
section, authorize the executor or administrator to deed such property to
the person, or his executor or administrator, for whose use and benefit it
was so held; and the CT may order the execution of such trust, whether
created by deed or by law.
OROSA NOTES
RULE 90
DISTRIBUTION AND PARTITION OF THE ESTATE
SEC 1. When order for distribution of residue made.
When the debts, funeral charges, and expenses of administration, the
allowance to the widow, and inheritance tax, if any, chargeable to the
estate in accordance with law, have been paid,
the CT, on the application of the executor or administrator, or of a
person interested in the estate, and after hearing upon notice,
shall assign the RESIDUE OF THE ESTATE TO THE PERSONS ENTITLED TO THE SAME,
naming them and the proportions, or parts,
to which each is entitled, and
such person may demand and recover their respective shares from the
executor or administrator, or any other person having the same in his
possession.
If there is a controversy before the CT
as to WHO ARE THE LAWFUL HEIRS of the deceased person or
as to the distributive shares to which each person is entitled under the
law
the controversy shall be heard and decided as in ordinary cases.
NO DISTRIBUTION shall be allowed UNTIL THE PAYMENT OF THE OBLIGATIONS
ABOVE MENTIONED has been made or provided for
UNLESS THE DISTRIBUTEES, or any of them, give a BOND, in a sum to be fixed
by the CT,
conditioned for the payment of said obligations within such time as the
CT directs.
When does the administration proceeding come to a close?
An order of distribution directing delivery of the residue of an estate
to the person entitled brings the administration proceeding to a
close.
When is the CT enjoined from ordering the distribution residue of
the estate?
The CT is enjoined from assigning or distributing the residue of the
deceaseds estate before the obligations are first paid. Such
obligations refer to the payment of the debts, funeral charges and
expenses of administration, the allowance to the widow and the
inheritance tax, if any, chargeable to the estate pursuant to law.
Distribution is permitted even though there are outstanding
obligations if sufficient bond is filed or provision is filed to meet
them pursuant to the last paragraph of SEC 1 of Rule 90 of the rules
of CT. But partial distribution of the estate is unwarranted where
the inventory of the properties of the deceased is under
consideration by the CT, the presentation of claims has not yet
elapsed and no bond is fixed by the CT.
How is distribution made?
The practice in the distribution of the estates of deceased persons is
to assign the whole of the properties left for the distribution to the
heirs in certain definite proportion, an aliquot part pertaining to each
of the heirs. A declaration as to who are the heirs of an intestate
may be made by the probate CT in which the state is under
administration, including the determination of whether certain
persons are acknowledged natural children. However, it can be
made only after the debt, expenses of administration etc., have
been paid and the question comes up as who is entitled to the
residue.
Can there be a declaration of heirs before the settlement of the
deceaseds obligation?
Yes, SEC 1 Rule 90 of the Rules of CT does not preclude the CT from
making a declaration of heirs prior to the satisfaction of the
deceaseds obligation. What the CT is enjoined from doing is the
assignment or distribution of the residue of the deceaseds estate
before the obligations are first paid.
Is judicial partition in a probate proceeding final?
No, judicial partition in probate proceedings is not final and
conclusive and does not prevent one of the heirs within the
prescriptive period from bringing an action to obtain his share of the
land. A final order of distribution of the estate of the deceased
person vests title to the land of the estate in the distributes.
When can you file a petition for distribution?
The petition can be filed after payment of debts, funeral charges,
expenses of administration, taxes, etc as provided in SEC 1.
Why allege in the petition the period to file claims?
Because after such period, creditors can no longer file claims.
When shall the proper CT make a declaration of heirs?
After and not before the payment of all the debts, funeral charges,
expenses of administration, allowance to the widow, and inheritance
tax is effected, the CT shall make a declaration of heirs of such
persons as entitled by law to the residue. (Lopez vs. Lopez)
Does the CT have the power to determine the RIGHTS OF A NATURAL
CHILD?
OROSA NOTES
Included in the jurisdiction of the probate CT to make declaration of
the heirs is the power to entertain the question whether or not a
person is an acknowledged natural child.
What is the effect of an order of distribution?
The order of distribution directing the delivery of the residue to the
persons entitled thereto, brings to a close the intestate proceedings
and puts an end to the administration and the administrator is thus
relieved form his duty. (Heirs of Santiesban vs. Santiesbamn)
What is the remedy of an heir who failed to receive his share in the
distribution of the estate of the decedent?
The procedure for an heir who has not received his share is to
demand his share through a proper motion in the same probate of
an administration proceeding, or for the reopening of the probate
administration proceeding if it had already closed and not through
an independent action which would be tried by another CT or judge
who may thus reverse a decision or order of the probate of the
intestate CT already final and executed and reshuffle property long
ago distributed and disposed of. (Solivio vs. CA)
May the heirs claim their distributive share of the estate of the
decedent even before the debts of the estate have been paid?
The right of the heirs to specific, distributive share of the inheritance
does not become fully determinable until all the debts of the estate
are paid. Until, then, in the face of said claims, the hereditary rights
cannot be enforced, are inchoate and subject to the existence of the
residue after payment of the debts. Thus, notwithstanding that the
of the decedent estate under administration have been ordered by
final judgment in a separate action to be reconveyed to the
decedents heirs said properties are subject to the debts of the
estate. They cannot distribute the properties among themselves
without the debts of the estate being first paid. The reconveyance
of the properties to the heirs was a trust for the estate subject to its
obligations. (Salvador vs. Sta. Maria)
When does the probate CT LOSE JURISDICTION over the estate?
A probate CT loses jurisdiction over the estate only after the
payment of all the debts remaining estate delivered to the heirs
entitled to receive them.
SEC 2. Questions as to advancement to be determined.
Questions as to ADVANCEMENT made, or alleged to have been made,
by the deceased TO ANY HEIR may be heard and determined by the CT
having jurisdiction of the estate proceedings; and the final order of the
CT thereon shall be BINDING ON THE PERSON raising the questions and on
the heir.
SEC 3. By whom expenses of partition paid.
If AT THE TIME OF THE DISTRIBUTION the executor or administrator has
RETAINED SUFFICIENT EFFECTS in his hands
which may lawfully be applied for the EXPENSES OF PARTITION of the
properties distributed
such expenses of partition may be paid by such executor or
administrator when it appears
equitable to the CT 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 CT, and,
if any person interested in the partition DOES NOT PAY HIS PROPORTION OR
SHARE,
the CT may ISSUE AN EXECUTION in the name of the executor or
administrator against the party not paying for the sum assessed.
Please remember the 5 instances when execution may be issued.
What is the application of this rule?
The expenses incurred by the administrator or executor to procure a
bond is not proper charge against the estate. Sec 680 of the Code
of Civil Procedure does not authorize the executor or administrator
to charge against the estate the money spent for the presentation,
filing and substitution of a bond.
SEC 4. Recording the order of partition of estate.
Certified copies of final orders and judgments of the CT 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 what conditions may distribution be allowed pending payment
of debts?
By putting up a bond
What is the purpose of a bond?
To answer for the payment of obligations
OROSA NOTES
RULE 91
ESCHEATS
SEC 1. When and by whom petition filed.
When a person
dies intestate,
seized of real or personal property in the Philippines,
leaving no heir or person by law entitled to the same, the Solicitor
General or his representative in behalf of the Republic of the Philippines
may file a petition in the CFI of the province
where the deceased last resided or
in which he had estate
if he resided out of the Philippines
setting forth the facts, and praying that the estate of the deceased be
declared escheated.
Define escheat
Escheat is a proceeding whereby the real and personal property of a
person who dies without leaving any will or legal heirs become the
property of the estate upon his death.
Escheat-chance or accident
What is the underlying theory regarding escheat proceedings?
Escheats belong to the state as the ultimate proprietor of land
(Regalian Doctrine) within its jurisdiction. The right of the state to
take the property has been based upon the theory that the state
takes succession as the last heir.
Also for the preservation of harmony and peace. Can u imagine if
anyone finds out that the owner of Hidalgo died and left no heirs? E
di lahat tayo nag-unahan maging squatter dun (Except si Nina, of
course ! sawa na cya dun)
When may a petition for escheat filed?
Under SEC 1 Rule 91, the petition for escheat may be filed
a. when person dies intestate
b. seized of real or personal property in the Philippines
c. Leaving no heir or person by law entitled to the same
2. Under SEC 5, actions to reversion or escheat may also be
instituted in proper cases where property is alienated in violation of
the Constitution or of any statute, but the action shall be instituted
in the province where the land lies in whole or in part.
3. under Act no. 3936 as amended by PD 679, petitions for escheat
with respect to the unclaimed (dormant) BALANCES IN BANKS may also
be filed.
What properties are SUBJECT TO ESCHEAT?
All property real and personal and every right of property of any
nature is subject to escheat to the state. These include bank
deposits, dividends, corporate stocks, distributive share of
stockholders on dissolution of corporations and unclaimed funds of
persons who were inmates of state hospitals or soldiers or sailors
homes. Telegraphic transfers are subject of escheats.
What is included in the term unclaimed balances in banks which are
subject to escheat?
It would appear that the term unclaimed balances that are subject
to escheat includes credits or deposits of money or other evidence of
indebtedness of any kind with banks, in favor of any person unheard
from for a period of 10 years or more.
WHO MAY FILE for petition for escheat?
The Solicitor General or his representative in behalf of the Republic
of the Philippines may file a petition for escheat.
SEC 2. Order for hearing.
If the petition is sufficient in form and substance, the CT, by an order
reciting the purpose of the petition, shall fix a date and place for the
hearing thereof,
which date shall be not more than 6 months after the entry of the order,
and
shall direct that a copy of the order be PUBLISHED before the hearing at
least once a week for 6 successive weeks in some newspaper of general
circulation published in the province, as the CT shall deem best.
SEC 3. Hearing and judgment.
Upon the satisfactory proof in open CT on the date fixed in the order that
such order has been published as directed and that the person died
intestate, seized of real or personal property in the Philippines, leaving
no heir or person entitled to the same, and no sufficient cause being
shown to the contrary, the CT shall adjudge that the estate of the
deceased in the Philippines, after the payment of just debts and charges,
shall escheat; and shall, pursuant to law, assign the personal estate to
the municipality or city where he last resided in the Philippines, and the
real estate to the municipalities or cities, respectively, in which the same
is situated. If the deceased never resided in the Philippines, the whole
estate may be assigned to the respective municipalities or cities where
the same is located. Such estate shall be for the benefit of public schools,
and public charitable institutions and centers in said municipalities or
cities.
The CT, at the instance of an interested party, or on its own motion, may
order the establishment of a permanent trust, so that only the income
from the property shall be used.
OROSA NOTES
What is the procedure to be followed upon the filing of a petition for
the first type of escheat?
The procedure is
1. If the petition is sufficient in form and substance, the CT shall:
a. set the same for hearing which date shall not be more than 6
months after the entry of the order of hearing or
b. direct that the order be published before the hearing at least
once a week for 6 successive weeks in some newspaper of
general circulation published in the province.
2. Upon satisfactory proof that the order of hearing was duly published
and that the person died without heir or will, the CT shall after
payment of debts and charges adjudge that the estate of the
deceased in the Philippines shall escheat as follows:
a. It shall assign the personal estate to the municipality or city
where the deceased last resided.
b. The real estate shall be assigned to the cities and
municipalities in which the same is located.
c. If the deceased never resided in the Philippines, the whole
estate may be assigned to the respective cities and
municipalities where the same is located.
d. Such estate shall be for the benefit of public schools and public
charitable institutions and centers in said municipalities and
cities, and
e. The CT may, at the instance of an interested party, or of its
own motion, order the establishment of a permanent trust so
that only the income from the property shall be used.
What facts must be proven in the hearing for the petition for
escheat for said petitions to prosper?
The CT shall adjudge that the estate of the deceased in the
Philippines shall escheat upon satisfactory proof in open CT on the
date fixed in the order for hearing of the following facts:that such
order has been published as directed;
1. That the person died intestate, seized of real and personal
property in the Philippines, leaving no heir or person entitled to
the same; and
2. That no sufficient cause is shown to the contrary.
it shall be noted that the estate shall escheat only after the payment of
just debts and charges.
What is duty of the CT once a petition for escheat is filed?
When a petition sufficient in form and substance is filed, it becomes
the duty of the CT to issue an order reciting the purpose of the
petition and fixing a date and place for hearing thereof. It is also
the duty of the CT to direct that a copy of the order for hearing shall
be published before the hearing as provided in SEC 2 Rule 91.
When must the hearing of the petition for escheat set?
The petition for escheat must be set not more than 6 months after
entry of the order setting the time and date for such.
Who will be the BENEFICIARIES of the property escheated?
SEC 3 Rule 91 provides that the property escheated shall be for the
benefit of public schools and public charitable institutions and
centers in their respective municipalities and cities.
Is the petitioner in a special proceeding for the escheat the sole and
exclusive interested party?
No, in a special proceeding for escheat under section 750 to 752
(now sections 1 to 3 Rule 91), the petitioner is not the sole and
exclusive interested party. Any person alleging to have a direct
right or interest in the property sought to be escheated is likewise
an interested and necessary party and may appear and oppose the
petition for escheat. (Municipality of San Pedro vs, Colegio de San
jose)
May a motion to dismiss be availed of in escheat proceedings?
Yes, when a petition for escheat does not state the facts which
entitle the petitioner to the remedy prayed for and even admitting
them hypothetically, it is clear that there is no ground for the CT to
proceed to the inquisition provided by law, an interested party
should not be disallowed from filing a motion to dismiss the petition
which is untenable from all standpoints. And when the motion to
dismiss is entertained upon this ground, the petition may be
dismissed unconditionally and the petitioner is not entitled to be
afforded an opportunity to amend his petition. (Id)
In what cases will a petition for escheat not prosper?
Escheat will not prosper :
1. If the property subject to it already belongs to the State. In other
words, if the property sought to be escheated and adjudicated to a
municipality has already passed to the ownership of the government
of the Philippines, it is evident that the petitioner in a proceeding for
escheat cannot claim that the same be escheated to the said
municipality because it is no longer the case of real property owned
by a deceased person who has not left an heir or person who may
legally claim it, these being conditions required by SEC 1 and
without which a petition for escheat should not lie. If the
municipality believes that it has some other right to a property,
distinct from the escheat relied upon in its petition which gave rise
to these proceedings, it should bring the proper action but it cannot
avail itself successfully of the remedy of escheat. (Id)
2. When it comes to ordinary real properties, the owners of which may
be presumed dead and left no heirs, the same may be escheated
OROSA NOTES
conformably to Rule 91, in favor of the political subdivision in which
they are located. The said rule, however, does not cover properties
taken from enemy nationals as a result of World war II and required
to be transferred to the Philippines by the US in accordance with its
own enactment commonly known as the Phil Property act of 1946.
Such properties belong to the Philippine government not by virtue of
the escheat proceedings but on the strength of the transfer
authorized by the said act. (Republic vs. IAC)
Is it proper for a CT to DECLARE A PERSON PRESUMPTIVELY DEAD in an
escheat proceeding?
Yes, it is proper for a CT to declare persons presumptively dead in
escheat proceedings as they are in effect, proceedings to settle
estates. Indeed, while a petition instituted for the sole purpose of
securing a judicial declaration that a person is presumptively dead
cannot be entertained if that were the only question or matter
involved in the case, the CTs are not barred from declaring an
absentee presumptively dead as an incident of, or in connection with
an action or proceeding for the settlement of the intestate estate of
such absentee. (Tan vs. city of Davao)
SEC 4. When and by whom claim to estate filed.
If a devisee, legatee, heir, widow, widower or other person entitled to
such estate
APPEARS AND FILES a claim thereto with the CT within 5 years from the date
of such judgment
such person shall have POSSESSION of and title to the same, or
if SOLD, the municipality or city shall be accountable to him for the
PROCEEDS
after deducting reasonable charges for the care of the estate;
but a claim not made within said time shall be FOREVER BARRED.
When and by whom may a claim to escheated property be filed?
If an heir of the deceased files a claim with the CT having jurisdiction
within 5 years from the date of the judgment, such person shall have
possession and title to the escheated property, or if sold, the municipality
or city shall be accountable to him for the proceeds, after deducting
reasonable charges for the care of the estate; but a claim not made
within said time shall be forever barred.
SEC 5. Other actions for escheat.
Until otherwise provided by law, actions for reversion or escheat of
properties alienated in violation of the Constitution or of any statute shall
be governed by this rule,
except that the action shall be instituted in the province where the land
lies in whole or in part.
Explain the second type of escheat provided for in SEC 5 rule 91
This is a new provision. A TRANSFER OF LANDS TO AN ALIEN or one
otherwise prohibited from acquiring and holding them under the
Constitution or under any statute is vulnerable to attack either by
escheat proceedings, or by an action for reversion. The present rule
allows such actions to be governed by Rule 91 unless otherwise
provided by law. Except that an action shall be instituted in the
province where the land lies or in part.
What is the third type of escheat?
The third type of escheat involves the escheat of UNCLAIMED BANK
DEPOSITS under Act no. 3936 as amended by PD 679.
WHO MUST INITIATE the petition for escheat under SEC 5 rule 91?
An escheat proceeding under SEC 5 Rule 91 must be initiated by the
Government. All interested parties, especially the actual occupants
and the adjacent lot owners, shall be personally notified of the
proceeding and given the opportunity to present their valid claims
over the land otherwise it will be reverted to the State. (Berrmudo
vs. CA)
What are unclaimed balances as used under Act 3936 as amended
by PD 679?
Unclaimed balances shall include credits or deposits of money,
bullion security or other evidence of indebtedness of any kind and
interest thereon with banks, building and loan associations, and
trust corporations as hereinafter defined in favor of any person
known to be dead or who has not made further deposits or
withdrawals during the preceding ten years or more. Such
unclaimed balances. Together with the increase and proceeds
thereof, shall be deposited with the Treasurer of the Philippines to
the credit of the government of the Philippines to be used as the
National Assembly may direct.
Are the banks holding these unclaimed balances the real party in
interest in escheat proceedings?
Yes, a real party in interest has been defined as the party who
would be benefited or injured by the judgment of the suit or party
entitled to avail of the suit. There can be no doubt that the bank
falls under this definition for escheat of the dormant deposits in
favor of the government would necessarily deprive said bank of the
use of such deposits. It is in this sense that it stands to be injured
by the judgment of the suit and it is for this reason that SEC 3 Act
no. 3936 specifically provides that the bank shall be joined as a
party in the action for escheat, thus, SEC 3 whenever the attorney
general shall be informed of such unclaimed balances, he shall
commence an action or actions in the name of the People of the
Philippines in the CFI of the province where the bank is located, in
OROSA NOTES
which shall be joined as parties the bank and such creditors or
depositors. All or any member of such creditors or depositors or
banks, may be included in one action indeed, if the bank were not a
real party in interest, the legislature would not have provided for its
joining as party in the escheat proceedings (Republic vs. CFI of
Manila)

Explain the venue of escheat proceedings covering unclaimed

balances.
The first sentence of sec 3. Act no, 3936 directs the Attorney
General, now the Solicitor General shall commence an action or
actions in the name of the People of the Philippines in the CFI of the
province where the bank is located, in which shall be joined as
parties the bank and such creditors or depositors. The phrase or
actions in this section is very significant. It manifests awareness on
the part of legislators that a single action to cover all banks
wherever located in the Philippines would not be legally feasible in
view of the venue prescribed for such action under the same
section. Thus, the addition of the last sentence, which the lower CT
had correctly interpreted to mean that for an escheat of unclaimed
bank balances, all banks is located in one and the same province
where the CT concerned is located may be made parties defendants
in one action was clearly intended to save on litigation and
publication expenses, but certainly not as authority for the lumping
together of all banks wherever found in the Philippines in one single
escheat proceeding (Id)
OROSA NOTES
RULE 92
VENUE
Who is a GUARDIAN?
A guardian is a person who allegedly has the care of the person or
property or both of another person who is incompetent to act for
himself.
Define GUARDIANSHIP.
Guardianship has been defined as the office, duty or authority; also
the relation subsisting between guardian and ward.
It involves the taking of
1. POSSESSION of and
2. MANAGEMENT
of the estate of another unable to act for himself.
What is the NATURE of guardianship ?
It is A TRUST RELATION of the most sacred character, in which one
person called a guardian acts for another, called the ward, whom
the law regards as incapable of managing his own affairs.
Can a guardian be removed because of age ?
Yes, a guardian becomes incompetent to serve the trust if he is so
disqualified by mental incapacity, conviction of a crime, moral
delinquency or physical disability as to be properly discharging the
duties of his office. Additionally, while age alone is nota controlling
criterion in determining a persons fitness to be appointed as
guardian, it may be a factor in consideration. (Francisco vs CA
ehem ehem. Parang sakto to ah!)
What is the PURPOSE of guardianship ?
To SAFEGUARD THE RIGHT AND INTERESTS of minors and incompetent
persons and the CT should be vigilant to see that the right of such
persons are properly protected.
The CT having JURISDICTION OF A GUARDIANSHIP MATTER IS SAID TO BE THE
SUPERIOR GUARDIAN, while the guardian himself is deemed to be an
OFFICER OF THE CT.
Who is a ward ?
A person over whom or over whose property a guardian is
appointed.
With reference to minors, a ward is an infant placed by authority of
law under the care of a guardian. Such infant is a ward of the CT
appointing the guardian.
What are the 3 KINDS OF GUARDIANS under the law?
They are
1. legal guardian
2. guardian ad litem
3. judicial guardian
LEGAL GUARDIAN who is such by provision of law W/O THE NEED OF
JUDICIAL APPOINTMENT, as in the case of the parents over the persons
of their minor children
GUARDIAN AD LITEM who may be any competent person appointed by
the CT FOR PURPOSES OF A PARTICULAR ACTION OR PROCEEDING involving a
minor
JUDICIAL GUARDIAN who is a competent person appointed by the CT
over the person and/or property of the ward TO REPRESENT THE LATTER
IN ALL HIS CIVIL ACTS AND TRANSACTIONS
SEC 1. Where to institute proceedings.
Guardianship of the person or estate of a minor or incompetent
may be instituted in the CT of First Instance of the province, or in the
justice of the peace CT of the municipality, or in the municipal CT of the
chartered city where the minor or incompetent person RESIDES, and
if he RESIDES IN A FOREIGN COUNTRY,
in the CT of First Instance of the province wherein HIS
PROPERTY OR PART THEREOF IS SITUATED;
provided, however, that where the value of the property of such minor or
incompetent exceeds the jurisdiction of the justice of the peace or
municipal CT, the proceedings shall be instituted in the CT of First
Instance.
In the City of Manila, the proceedings shall be instituted in the Juvenile
and Domestic Relations CT.
NOTE :
1. Under BP 129 the inferior CTs no longer have concurrent
jurisdiction to appoint judicial guardians over the
person/property of minors or incompetents with the RTC.
2. Where the minor or incompetent is a party to an action in an
inferior CT, he may be assisted by or may sue or be sued
therein through his legal guardian or the inferior CT may
appoint a guardian ad liten for him.
3. Under BP 129, the value of the estate is no longer
jurisdictional.
In what CT should guardianship proceedings be filed ?
If the minor or incompetent is a RESIDENT of the Philippines RTC of
the province wherein such minor or incompetent RESIDES.
If the minor or incompetent is a NON-RESIDENT RTC of the province
wherein the PROPERTY OR PART THEREOF IS SITUATED
OROSA NOTES
SEC 2. Meaning of word "incompetent."
Under this rule, the word "INCOMPETENT" includes
1. persons suffering the penalty of CIVIL INTERDICTION or
2. who are HOSPITALIZED LEPERS,
3. PRODIGALS,
4. DEAF AND DUMB who are unable to read and write,
5. those who are of UNSOUND MIND,
even though they have lucid intervals, and
6. persons NOT BEING OF UNSOUND MIND,
BUT by reason of age, disease, weak mind, and
similar causes, cannot, without outside aid,
take care of themselves and manage their property,
becoming thereby an easy prey for deceit and exploitation.
take care of themselves and manage their
property, becoming thereby an easy prey for
deceit and exploitation.
SEC 3. Transfer of venue.
The CT taking cognizance of a guardianship proceeding,
may TRANSFER THE SAME to the CT of another province or municipality
wherein the ward has ACQUIRED REAL PROPERTY,
if he has TRANSFERRED THERETO HIS BONA-FIDE RESIDENCE, and
the latter CT shall have FULL JURISDICTION to continue the proceedings,
WITHOUT requiring payment of additional CT fees.
other

What are the conditions that warrant the appointment of a

guardian ?
Where it is sought to appoint a guardian both of the person and of
the estate of an incompetent, it seems to be the prevailing view that
proof of the entire absence of reason, understanding or memory is
not required in order to justify the appointment of a guarding of the
estate of one alleged to be of unsound mind.
It is generally held to be sufficient to show that he is incapable of
managing his affairs as if he were insane and the test to applied is
WHETHER THERE IS SUCH MENTAL IMPAIRMENT AS RENDERS THE SUBJECT
INCAPABLE OF UNDERSTANDING AND ACTING IN THE ORDINARY AFFAIRS OF
LIFE.
However, the unsoundness of mind which will justify an appointment
must be MORE THAN MERE DEBILITY or impairment of memory or a mere
possibility that the subject will become insane in the future (if thats
the case dapat now pa lang me guardian na si rosei :P )

Who are the incompetent persons for whom a guardian may be

appointed ?
Under Rule 92 Sec 1.
1. persons suffering the penalty of CIVIL INTERDICTION or
2. who are HOSPITALIZED LEPERS,
3. PRODIGALS,
4. DEAF AND DUMB who are unable to read and write,
5. those who are of UNSOUND MIND,
even though they have lucid intervals, and
persons NOT BEING OF UNSOUND MIND,
6. BUT by reason of age, disease, weak mind, and
other similar causes, cannot, without outside aid,
OROSA NOTES
RULE 93
APPOINTMENT OF GUARDIANS SEC 2. Contents of petition.
A petition for the appointment of a general guardian must show, so far
(over 1. property and 2. property and person of the ward) as known to the petitioner:
a. The JURISDICTIONAL FACTS;
b. The MINORITY OR INCOMPETENCY rendering the appointment necessary
SEC 1. Who may petition for appointment of guardian for or convenient;
resident. c. The names, ages, and residences of the RELATIVES of the minor or
Any incompetent, and of the PERSONS HAVING HIM IN THEIR CARE;
1. relative, d. The probable value and character of his ESTATE;
2. friend, or e. The name of the PERSON FOR WHOM LETTERS OF GUARDIANSHIP ARE
3. other person PRAYED.
on behalf of a resident MINOR OR INCOMPETENT
who has NO PARENT OR LAWFUL GUARDIAN, or The petition shall be VERIFIED; but NO DEFECT IN THE PETITION or verification
4. the minor himself if fourteen years of age or over, shall RENDER VOID the issuance of letters of guardianship.
may petition the CT having jurisdiction for the appointment of a
GENERAL GUARDIAN for the
person or What are the JURISDICTIONAL FACTS referred to in a ?
estate, or The minority or incompetency of the person for whom guardianship
both, is sough and his domicile.
of such minor or incompetent. The actual existence of a ward is a jurisdictional fact required for the
validity of an order appointing a guardian.
5. An officer of the Federal Administration of the United States in the No person can serve as a guardian for another who is of full age and
Philippines sui juris, a CT has neither the power nor the duty to exercise
may also file a petition in favor of a ward thereof, and guardianship over an individual who is a free and independent agent
6. the DIRECTOR OF HEALTH, and is in full possession of all the faculties, and such an individual
in favor of an insane person who should be hospitalized, or in cannot make himself a ward of the CT. (meaning kahit yung person
favor of an isolated leper. mismo ang mag-apply for appointment of guardianship over himself
as long as not incompetent, di pwede)

Who may petition for appointment of a guardian ? SEC 3. CT to set time for hearing; Notice thereof.
The following are the persons who may petition for the appointment When a petition for the appointment of a general guardian is filed,
of a general guardian for the person or estate or both of a minor or the CT
incompetent. 1. SHALL fix a time and place for HEARING the same, and
2. SHALL cause reasonable NOTICE thereof to be given to the persons
1. relative, mentioned in the petition
2. friend, or RESIDING IN THE PROVINCE,
3. other person including the minor if above 14 years of age or the
on behalf of a resident MINOR OR INCOMPETENT incompetent himself, and
who has NO PARENT OR LAWFUL GUARDIAN, or 3. MAY direct other general or SPECIAL NOTICE thereof to be given.
4. the minor himself if fourteen years of age or over,

5. the DIRECTOR OF HEALTH,

in favor of an insane person who should be hospitalized, or in Note that notice of application and hearing is jurisdictional.
favor of an isolated leper
OROSA NOTES

SEC 4. Opposition to petition.
Any INTERESTED PERSON may,
by filing a WRITTEN OPPOSITION,
CONTEST the petition on the GROUND of
1. MAJORITY of the alleged minor,
2. COMPETENCY of the alleged incompetent, or
3. the UNSUITABILITY of the person for whom letters are prayed, and
may PRAY that
1. the petition be dismissed, or
2. that letters of guardianship issue to himself, or
3. to any suitable person named in the opposition.
Who may file an opposition for an appointment of a guardian ?
Any interested person to the property and/or in the person of the
minor or incompetent may file an opposition to the petition for the
appointment of the guardian.
The opposition must be in writing. The rule does not require that it
be verified.
What are the grounds for opposition ?
The grounds are :
1. MAJORITY of the alleged minor,
2. COMPETENCY of the alleged incompetent, or
the UNSUITABILITY of the person for whom letters are prayed.
SEC 5. Hearing and order for letters to issue.
At the hearing of the petition the alleged incompetent
must be PRESENT IF ABLE TO ATTEND, and
it must be shown that the required NOTICE has been given.
Thereupon the CT shall HEAR THE EVIDENCE of the parties
in support of their respective allegations, and,
if the person in question is a minor, or incompetent
it shall appoint a suitable guardian of his person or estate, or both,
with the powers and duties hereinafter specified.
SEC 6. When and how guardian for nonresident appointed;
Notice.
When a person liable to be put under guardianship
RESIDES WITHOUT THE PHILIPPINES
but HAS ESTATE THEREIN,
1. any relative or friend of such person, or
2. any one interested in his estate,
in expectancy or otherwise,
may petition a CT having jurisdiction
for the appointment of a guardian for the estate, and
if, after NOTICE given to such person and
in such manner as the CT DEEMS PROPER,
by PUBLICATION OR OTHERWISE,
and HEARING,
the CT is SATISFIED that such nonresident
is a minor or incompetent
rendering a guardian necessary or convenient,
it may APPOINT A GUARDIAN for such ESTATE.

What is ancillary guardianship ?

As construed and applied in judicial decisions, means guardianship
in a state other that that in which guardianship is originally granted
and which is subservient and subsidiary to the latter.
Preference in the appointment of a guardian will ordinarily be given,
on the principles of comity, to a person already clothed with the
authority o guardian in the minors own country or state.

What is the extent of the power of the guardian appointed under

Sec 6 ?
Only with respect to the estate of the non-resident minor or
incompetent found in the Philippines.
OROSA NOTES

SEC 7. Parents as guardians.

When the property of the child under parental authority
is worth P2,000 or less,
the father or the mother,
without the necessity of CT appointment,
shall be his legal guardian.
When the property of the child is worth > P2,000 ,
the father or the mother shall be considered guardian of the child's
property,
with the duties and obligations of guardians under these rules, and
shall file the petition required by section 2 thereof.
For GOOD REASONS theCT may, however, APPOINT ANOTHER SUITABLE PERSON.

SEC 8. Service of judgment.

Final orders or judgments under this rule
shall be SERVED UPON THE CIVIL REGISTRAR
of the municipality or city
where the minor or incompetent person resides or
where his property or part thereof is situated.
OROSA NOTES
RULE 94 in case of the breach of a condition thereof, may be prosecuted
BONDS OF GUARDIANS in the same proceeding or in a separate action for the use and benefit of
the ward or of any other person legally interested in the estate.

Sec 1. Bond to be given before issuance of letters; Amount; Where may an action on a guardians bond for breach of a condition
Conditions. be filed?
Before a guardian appointed enters upon the execution of his trust, or It may be prosecuted in the same proceeding or in a separate
letters of guardianship issue, he shall give a BOND, in such sum as the CT action.
directs, CONDITIONED as follows:
a. To make and return to the CT, within 3 months, a true and complete For whose benefit can the action be brought?
inventory of all the estate, real and personal, of his ward which shall For the use and benefit of the ward or of any other person legally
come to his possession or knowledge or to the possession or interested in the estate.
knowledge of any other person for him;
b. To faithfully execute the duties of his trust, to manage and dispose
of the estate according to these rules for the best interests of the
ward, and to provide for the proper care, custody, and education of
the ward;
c. To render a true and just account of all the estate of the ward in his
hands, and of all proceeds or interest derived therefrom, and of the
management and disposition of the same, at the time designated by
these rules and such other times as the CT directs; and at the
expiration of his trust to settle his accounts with the CT and deliver
and pay over all the estate, effects, and moneys remaining in his
hands, or due from him on such settlement, to the person lawfully
entitled thereto;
d. To perform all orders of the CT by him to be performed.

SEC 2. When new bond may be required and old sureties

discharged.
Whenever it is deemed necessary, the CT
1. may require a NEW BOND to be given by the guardian, and
2. may DISCHARGE THE SURETIES on the old bond from further liability,
after DUE NOTICE to interested persons,
when NO INJURY CAN RESULT THEREFROM to those interested in the estate.

Describe the power of the CT to require new or additional security.

The CT has authority to accept or require new or additional security
where such course appears proper for the protection of the estate.
It has been held that a surety may apply for an order requiring new
or additional security to be furnished.

SEC 3. Bonds to be filed; Actions thereon.

Every bond given by a guardian shall be
filed in the office of the clerk of the CT, and,
OROSA NOTES
RULE 95
SELLING AND ENCUMBERING PROPERTY OF WARD
SEC 1. Petition of guardian for leave to sell or encumber estate.
When the income of an estate under guardianship is insufficient
1. to maintain the ward and his family, or
2. to maintain and educate the ward when a minor, or
3. when it appears that it is for the benefit of the ward
that his real estate or some part thereof be SOLD, OR MORTGAGED OR
OTHERWISE ENCUMBERED,
and the proceeds thereof put out at interest, or invested in some
productive security, or in the improvement or security of other real
estate of the ward
the GUARDIAN may present a VERIFIED PETITION to the CT BY WHICH HE WAS
APPOINTED setting forth such facts, and praying that an order issue
authorizing the sale or encumbrance.
Is it necessary for a grant of authority to sell the estate of the ward
to state that the income from the property is insufficient to maintain
the ward and his family or to maintain and educate the ward when a
minor?
No, it is enough that it appears to the satisfaction of the CT that it is
for the benefit of the ward that his real estate or some parts thereof
should be sold and the proceeds thereof put out at interest, or
invested in some productive security.
What is the effect of lack of verification of petition to sell wards
estate?
Lack of verification of a petition filed in CT for sale of real property
belonging to the estate of a minor is not a jurisdictional defect.
Can the guardian sell properties of the ward without CT approval?
No, the property of the ward can only be sold under the authority of
the guardianship CT. (De Pua vs. San Agustin)
SEC 2. Order to show cause thereupon.
If it seems probable that such sale or encumbrance is
necessary, or
would be beneficial to the ward,
the CT shall make an order directing
the NEXT OF KIN OF THE WARD, and
all persons interested in the estate
to appear at a reasonable time and place therein specified to show cause
why the prayer of the petition should not be granted.
Define next of kin
The next of kin to be notified of an application by a guardian to the
CT for authority to sell the property of the ward, refers to those
whose relationship to the ward is such as would entitle them to
share in his estate as distributes.
SEC 3. Hearing on return of order; Costs.
At the time and place designated in the order to show cause, the CT shall
hear the proofs and allegations of the petitioner and next of kin, and
other persons interested, together with their witnesses, and grant or
refuse the prayer of the petition as the best interests of the ward require.
The CT shall make such order as to costs of the hearing as may be just.
What is the remedy against an order of the CT to sell wards
property?
Appeal is the proper remedy to assail the order of probate CTs to
sell the property of the ward.
SEC 4. Contents of order for sale or encumbrance, and how long
effective; Bond.
If, after full examination, it appears that it is necessary, or would be
beneficial to the ward, to sell or encumber the estate, or some portion of
it
the CT shall order such sale or encumbrance and that the proceeds
thereof be expended for the maintenance of the ward and his family, or
the education of the ward, if a minor, or for the putting of the same out
at interest, or the investment of the same as the circumstances may
require.
The order shall SPECIFY THE CAUSES why the sale or encumbrance is
necessary or beneficial, and may direct that estate ordered sold be
disposed of at either PUBLIC OR PRIVATE SALE, subject to such conditions as
to the time and manner of payment, and security where a part of the
payment is deferred, as in the discretion of the CT are deemed most
beneficial to the ward.
The ORIGINAL BOND OF THE GUARDIAN shall stand as SECURITY FOR THE PROPER
APPROPRIATION of the proceeds of the sale
OROSA NOTES
but the judge may, if deemed expedient, require an ADDITIONAL BOND as a
condition for the granting of the order of sale.
NO ORDER of sale granted in pursuance of this section shall CONTINUE IN
FORCE more than 1 year after granting the same, without a sale being
had.

What is the issue in guardianship proceedings and in the sale of

property undertaken by the ward?
In guardianship proceedings, the issue of the proposed wards
capacity to encumber or to dispose of his property in question,
notice of lis pendens is therefore necessary to give constructive
notice to all persons dealing with said property. (Gonzalez vs.
Ordonez-Benitez)

SEC 5. CT may order investment of proceeds and direct

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

Distinguish SEC 5 from Sections 1 and 2

Sections 1 and 2 relate only to the investment of the proceeds from
the sale or encumbrance of the estate and require prior judicial
authority. Section 5 relates to investment of other funds and does
not require prior judicial approval. Investment of funds under SEC 5
is sufficiently complied with if investments are fully disclosed in
periodical inventories and accounting, which receive the CTs
approval.
OROSA NOTES
RULE 96
GENERAL POWERS AND DUTIES OF GUARDIANS
SEC 1. To what guardianship shall extend.
A guardian appointed shall have the care and custody of the person of
his ward, and the management of his estate, or the management of the
estate only, as the case may be.
The guardian of the estate of a nonresident shall have the management
of all the estate of the ward WITHIN THE PHILIPPINES, and
NO CT other than that in WHICH SUCH GUARDIAN WAS APPOINTED shall have
JURISDICTION OVER THE GUARDIANSHIP.
What is the sole concern if the CT in guardianship?
The CT, in guardianship proceedings is solely concerned with the
wards custody and proper administration of his properties.
Conflicts regarding ownership or title to property in the hands of a
guardian, in his capacity as such, should be litigated in a separate
proceeding.
Who is the natural guardian of a minor child?
The father, or in case of his death or legal disqualification, the
mother of a minor child is to be deemed the natural guardian of the
child and as such is entitled to his custody and care for his
education. (Palet vs. Aldecoa Co.) Under the Family Code, the
father and mother jointly exercise parental authority over their
legitimate children who are not emancipated (Art. 211). Hence both
are joint natural guardians of the persons of their children (Art. 220)
But with respect to the property pertaining to the child, the father is
the legal administrator (Art. 225) In his absence or incapacity, the
mother. Consequently under the Family Code, neither the father
nor the mother need to be judicially appointed in order to administer
the property to his/her child under parental authority. If the
property or the annual income of the child exceeds P50,000, the
parent concerned shall be required to furnish a bond in such amount
as the CT may determine but not less than 10% of the value of the
property or annual income, to guarantee the performance of the
obligations prescribed for general guardians.
What is the power of a judicially appointed guardian?
Under this section, a guardian judicially appointed has the
management of his wards estate and to that effect he may perform
all acts of administration, such as leasing property for not more than
6 years, even without express authority of the CT, similar to the
power of an administrator or executor with respect to the estate of a
deceased. But a guardian has no power to leased realty for more
than 6 years for that would not be a mere act of administration.
SEC 2. Guardian to pay debts of ward.
Every guardian must pay the ward's just debts out of his personal estate
and the income of his real estate, if sufficient; if not, then out of his real
estate upon obtaining an order for the sale or encumbrance thereof.
From what part of the estate should the debts of the ward be paid
out?
From the:
1. personal estate
2. income of his real estate, if sufficient, if not then out of his real
estate, upon obtaining CT approval.
SEC 3. Guardian to settle accounts, collect debts, and appear in
actions for ward.
A guardian must settle all accounts of his ward, and demand, sue for,
and receive all debts due him, or may, with the approval of the CT,
compound for the same and give discharges to the debtor, on receiving a
fair and just dividend of the estate and effects; and he shall appear for
and represent his ward in all actions and special proceedings, unless
another person be appointed for that purpose.
How do you enforce an action for support by the ward against
guardian?
A claim for support by minor children against their father should be
enforced in a separate action not in the guardianship proceedings,
notwithstanding the fact that the father is their guardian.
SEC 4. Estate to be managed frugally, and proceeds applied to
maintenance of ward.
A guardian must manage the estate of his ward frugally and without
waste, and apply the income and profits thereon, so far as may be
necessary, to the comfortable and suitable maintenance of the ward and
his family, if there be any; and if such income and profits be insufficient
for that purpose, the guardian may sell or encumber the real estate,
upon being authorized by order so to do, and apply so much of the
proceeds as may be necessary to such maintenance.
What is the responsibility of the guardian with respect to the estate
of the ward?
The administrator of an estate belonging to the minors is liable to
the management of their interests therein from the time he accepts
his appointment until his removal or release. If he has, in the
meantime permitted other persons to intervene in the management,
he shall be held responsible for their acts. The administrator,
OROSA NOTES
however, may have a right of action against such persons for any
loss occasioned by their negligence or corruption.
SEC 5. Guardian may be authorized to join in partition
proceedings after hearing.
The CT may authorize the guardian to join in an assent to a partition of
real or personal estate held by the ward jointly or in common with
others, but such authority shall only be granted after hearing, upon such
notice to relatives of the ward as the CT may direct, and a careful
investigation as to the necessity and propriety of the proposed action.
What is required for the guardian to join in a partition of real or personal
property?
The CT authorization after:
1. hearing upon such notice to relatives of the ward
2. careful investigation as to the necessity and propriety of the
proposed action.
SEC 6. Proceedings when person suspected of embezzling or
concealing property of ward.
Upon complaint of the guardian or ward, or of any person having actual
or prospective interest in the estate of the ward as creditor, heir, or
otherwise, that anyone is suspected of having embezzled, concealed, or
conveyed away any money, goods, or interest, or a written instrument,
belonging to the ward or his estate, the CT may cite the suspected
person to appear for examination touching such money, goods, interest,
or instrument, and make such orders as will secure the estate against
such embezzlement, concealment or conveyance.
Can the CT order the delivery of property under SEC 6?
Generally, the guardianship CT exercising special and limited
jurisdiction cannot actually order the delivery of the property of the
ward found to be embezzled, concealed, or conveyed. In a
categorical language of the CT, only in extreme cases where
property clearly belongs to the ward or where his title thereto has
been judicially decided may the CT direct its delivery to the
guardian. (Parco vs. CA)
SEC 7. Inventories and accounts of guardians, and appraisement
of estates.
A guardian must render to the CT an INVENTORY of the estate of his ward
within 3 MONTHS AFTER HIS APPOINTMENT, and
annually after such appointment an inventory and account,
the rendition of any of which may be compelled UPON THE APPLICATION OF
AN INTERESTED PERSON.
Such inventories and accounts shall be sworn to by the guardian.
All the estate of the ward described in the FIRST INVENTORY shall be
APPRAISED.
In the appraisement the CT may request the assistance of one or more of
the inheritance tax appraisers.
And whenever any property of the ward not included in an inventory
already rendered is discovered, or succeeded to, or acquired by the
ward, like proceedings shall be had for securing an inventory and
appraisement thereof within three 3 months after such discovery,
succession, or acquisition.
What should be included in the inventory of the wards estate?
Only the estate of the ward should be included in the inventory.
Therefore, a married woman, under guardianship by reason of
insanity, is not entitled to have her half of the property of the
subsisting conjugal partnership included in the inventory of her
property to be filed by her guardian, and her husband, who was
appointed guardian of her person and estate, cannot be compelled
to include in the inventory said half of the conjugal property.
SEC 8. When guardian's accounts presented for settlement.
Expenses and compensation allowed. Upon the expiration of a year from
the time of his appointment, and as often thereafter as may be required,
a guardian must present his account to the CT for settlement and
allowance. In the settlement of the account, the guardian, other than a
parent, shall be allowed the amount of his reasonable expenses incurred
in the execution of his trust and also such compensation for his services
as the CT deems just, not exceeding fifteen per centum of the net
income of the ward.
OROSA NOTES
RULE 97
TERMINATION OF GUARDIANSHIP
SEC 1. Petition that competency of ward be adjudged, and
proceedings thereupon.
A person who has been DECLARED INCOMPETENT for any reason, or
his guardian, relative, or friend,
may petition the CT to have his present competency JUDICIALLY
DETERMINED.
The petition shall be VERIFIED BY OATH, and shall state that such person is
then competent.
Upon receiving the petition, the CT shall fix a time for hearing the
questions raised thereby, and cause reasonable notice thereof to be
given to the guardian of the person, so declared incompetent, and to the
ward.
On the trial, the guardian or relatives of the ward, and, in the discretion
of the CT, any other person
MAY CONTEST THE RIGHT TO THE RELIEF DEMANDED, and
witnesses may be called and examined by the parties or by the CT on its
own motion.
If it be found that the person is NO LONGER INCOMPETENT his competency
shall be adjudged and the guardianship shall cease.
Is the petition for RESTORATION TO CAPACITy a NEW OR INDEPENDENT
PROCEEDING?
No the petition involved here is a CONTINUATION of the original
guardianship proceeding. If the CT had jurisdiction to appoint a
guardian of the person and property of the incompetent party, it is
obvious that it had also jurisdiction to try and grant the petition for
restoration.
Is the notice requirement JURISDICTIONAL?
It is not intended as a personal service of process in the sense
necessary to give the CT jurisdiction over the ward. It is therefore
of no moment that the person to be notified is living in a foreign
country and thus beyond the territorial jurisdiction of the Philippine
CTs. It at least gives him the opportunity to advice the CT in case
action taken by the mover of the petition was inofficious or
unauthorized. this is similar to an action in rem or quasi in rem
against a non-resident defendant wherein service of the summons
by publication is required not for the purpose of giving Philippine
CTs jurisdiction over the person of the non-resident, but merely to
satisfy the due process requirement. At any rate, the notice upon
the ward and the guardian though merely procedural and not
jurisdictional, affects the validity of the proceedings if prejudice is
cause thereby.
SEC 2. When guardian removed or allowed to resign; New
appointment.
When a guardian becomes
1. insane or
2. otherwise incapable of discharging his trust or
3. unsuitable therefor, or
4. has wasted or mismanaged the estate, or
5. failed for 30 days after it is due to render an account or make a
return
the CT may, upon REASONABLE NOTICE to the guardian, REMOVE him, and
compel him to surrender the estate of the ward to the person found to be
lawfully entitled thereto. A guardian may RESIGN when it appears proper
to allow the same; and upon his resignation or removal the CT may
appoint another in his place.
What are the grounds for removal or resignation of guardian?
The grounds for the removal or resignation of a guardian are:
1. Guardian becomes insane or otherwise incapable of discharging
his trust or unsuitable therefore
2. He has wasted or mismanaged the estate
3. He has failed for 30 days after it is due to render an account or
make a return.
Is the action for removal of a guardian an action against the estate
of the ward?
No, proceedings for removal are against the guardian as an
individual and not against the estate.
What is the NATURE OF THE RIGHT of the guardian to resign?
A guardian has no absolute right to resign, but whether or not his
resignation shall be accepted is a matter for the determination of
the CT. The acceptance of a guardians resignation terminates his
office as far as any rights or powers are concerned but does not
relieve him from liability with respect to his trust.
Does the DEATH OF THE WARD terminate the guardianship where there
is a pending suit instituted by the ward and the guardian?
No, if the ward should die with a pending suit, it becomes the duty
of the guardian, as a representative of the real party in interest to
pursue the pending suit.
SEC 3. Other termination of guardianship.
OROSA NOTES
The MARRIAGE OR VOLUNTARY EMANCIPATION of a MINOR WARD terminates the
guardianship of the person of the ward, and shall enable the minor to
administer his property as though he were of age,
BUT he CANNOT BORROW MONEY OR ALIENATE OR ENCUMBER REAL PROPERTY
without the consent of his father or mother, or guardian.
He can SUE AND BE SUED in CT
only with the assistance of his father, mother or guardian.
The guardian of any person may be discharged by the CT when it
appears, upon the application of the ward or otherwise, that the
guardianship is no longer necessary.

What is the effect of the marriage or voluntary emancipation of a

minor ward?
The effects are
1. There is termination of the guardianship over the person of the
ward, and shall enable the minor to administer his property as
though he were of age, but he cannot borrow money or alienate or
encumber real property without the consent of his father or mother,
or guardian.
2. He can sue and be sued in CT only with the assistance of his father,
mother or guardian.
3. The guardian of any person may be discharged by the CT when it
appears upon the application of the ward or otherwise, that the
guardianship is no longer necessary.

SEC 4. Record to be kept by the justice of the peace or municipal

judge.
When a justice of the peace or municipal CT takes cognizance of the
proceedings in pursuance of the provisions of these rules, the record of
the proceedings shall be kept as in the CT of first instance.

SEC 5. Service of judgment.

Final orders or judgments under this rule shall be served upon the civil
registrar of the municipality or city where the minor or incompetent
person resides or where his property or part thereof is situated.
OROSA NOTES
RULE 98
TRUSTEES
SEC 1. Where trustee appointed.
A trustee necessary to carry into effect the provisions of a will or written
instrument
shall be appointed by the CFI in which the will was allowed if it be a will
allowed in the Philippines, otherwise by the CFI of the province in which
the property, or some portion thereof, affected by the trust is situated.
This rule only applies to express trust as these are understood in
Articles 1443 to 1446 of the Civil Code and does not apply to implied
trust which arise by operation of law. Express trusts necessarily
involve three parties, the trustor, the trustee and the beneficiary
also known as the cestui que trust.
A petition for the appointment of a trustee may also be filed in the
administration proceedings over a testate estate testator has
provided therein that certain portions of his property be placed in
trust. Section 1 therefore determines the venue of the petition for
the appointment of a trustee.
How and in what cases may a trustee be appointed?
A trustee may be appointed by the RTC to carry into effect the
provisions of a will or written instrument. He shall be appointed, it
be allowed in the Philippines; otherwise by the RTC of the province
in which the property or some portion thereof affected by the trust
is situated.
SEC 2. Appointment and powers of trustee under will; Executor of
former trustee need not administer trust.
If a testator has omitted in his will to appoint a trustee in the Philippines,
and if such appointment is necessary to carry into effect the provisions of
the will, the proper CFI may, after notice to all persons interested,
appoint a trustee who shall have the same rights, powers, and duties,
and in whom the estate shall vest, as if he had been appointed by the
testator. No person succeeding to a trust as executor or administrator of
a former trustee shall be required to accept such trust.
SEC 3. Appointment and powers of new trustee under written
instrument.
When a trustee under a written instrument
declines,
resigns,
dies, or
is removed before the objects of the trust are accomplished, and
no adequate provision is made in such instrument for supplying the
vacancy
the proper CFI may, after due notice to all persons interested, appoint
a new trustee to act alone or jointly with the others, as the case may be.
Such new trustee shall have and exercise the same powers, rights, and
duties as if he had been originally appointed, and the trust estate shall
vest in him in like manner as it had vested or would have vested, in the
trustee in whose place he is substituted; and
the CT may order such conveyance to be made by the former trustee or
his representatives, or by the other remaining trustees, as may be
necessary or proper to vest the trust estate in the new trustee, either
alone or jointly with the others.
SEC 4. Proceedings where trustee appointed abroad.
When land in the Philippines is held in trust for persons resident here by
a trustee who derives his authority from without the Philippines, such
trustee shall, on petition filed in the CFI of province where the land is
situated, and after due notice to all persons interested, be ordered to
apply to the CT for appointment as trustee; and upon his neglect or
refusal to comply with such order, the CT shall declare such trust vacant,
and shall appoint a new trustee in whom the trust estate shall vest in like
manner as if he had been originally appointed by such CT.
SEC 5. Trustee must file bond. -
Before entering on the duties of his trust, a trustee shall file with the
clerk of the CT having jurisdiction of the trust a bond in the amount fixed
by the judge of said CT, payable to the Government of the Philippines
and sufficient and available for the protection of any party in interest,
and a trustee who neglects to file such bond shall be considered to have
declined or resigned the trust; but the CT may until further order exempt
a trustee under a will from giving a bond when the testator has directed
or requested such exemption, and may so exempt any trustee when all
persons beneficially interested in the trust, being of full age, request the
exemption. Such exemption may be cancelled by the CT at any time and
the trustee required to forthwith file a bond.
SEC 6. Conditions included in bond.
The following conditions shall be deemed to be a part of the bond
whether written therein or not:
a. That the trustee will make and return to the CT, at such time as it
may order, a true inventory of all the real and personal estate
belonging to him as trustee, which at the time of the making of such
inventory shall have come to his possession or knowledge;
b. That he will manage and dispose of all such estate, and faithfully
discharge his trust in relation thereto, according to law and the will
of the testator or the provisions of the instrument or order under
which he is appointed;
OROSA NOTES
c. That he will render upon oath at least once a year until his trust is 1. insanity
fulfilled, unless he is excused therefrom in any year by the CT, a 2. Incapability of discharging the trust or unsuitability thereof
true account of the property in his hands and of the management 3. Resignation
and disposition thereof, and will render such other accounts as the 4. Death of the trustee
CT may order; 5. When the termination appears essential to the interest of the
d. That at the expiration of his trust he will settle his accounts in CT persons beneficially interested in the trust
and pay over and deliver all the estate remaining in his hands, or
due from him on such settlement, to the person or persons entitled SEC 9. Proceedings for sale or encumbrance of trust estate.
thereto. When the sale or encumbrance of any real or personal estate held in
But when the trustee is appointed as a successor to a prior trustee, the trust is necessary or expedient, the CT having jurisdiction of the trust
CT may dispense with the making and return of an inventory, if one has may, on petition and after due notice and hearing, order such sale or
already been filed, and in such case the condition of the bond shall be encumbrance to be made, and the reinvestment and application of the
deemed to be altered accordingly. proceeds thereof in such manner as will best effect the objects of the
trust. The petition, notice, hearing, order of sale or encumbrance, and
What are the CONDITIONS OF THE BOND of a trustee? record of proceedings, shall conform as nearly as may be to the
The bond is conditioned provisions concerning the sale or encumbrance by guardians of the
1. To return to the CT an inventory of the estate belonging to him property of minors or other wards.
as trustee
2. To manage and dispose of such estate and faithfully discharge
his trust according to law, to the will of the testator or under
the written instrument to which he was appointed.
3. To render once a year until the trust is fulfilled a true account
of the proper in his hands of the management and disposition
thereof and render such other accounts as the CT may order.
4. To settle his accounts in CT until the expiration of the trust and
deliver all the estate remaining in his hands to the person
entitled thereto.

SEC 7. Appraisal; Compensation of trustee.

When an inventory is required to be returned by a trustee, the estate
and effects belonging to the trust shall be appraised and the CT may
order one or more inheritance tax appraisers to assist in the
appraisement. The compensation of the trustee shall be fixed by the CT,
if it be not determined in the instrument creating the trust.

SEC 8. Removal or resignation of trustee.

The proper CFImay, upon petition of the parties beneficially interested
and after due notice to the trustee and hearing, remove a trustee if such
removal appears essential in the interests of the petitioners. The CT may
also, after due notice to all persons interested, remove a trustee who is
insane or otherwise incapable of discharging his trust or evidently
unsuitable therefor. A trustee, whether appointed by the CT or under a
written instrument, may resign his trust if it appears to the CT proper to
allow such resignation.

What are the GROUNDS FOR TERMINATION of a trusteeship?

The following:
OROSA NOTES
RULE 99
ADOPTION AND CUSTODY OF MINORS
SEC 1. Venue.
A person desiring to adopt another or have the custody of a minor shall
present his petition to the CFI of the province, or the municipal or
justice of the peace CT of the city or municipality in which he resides.
In the City of Manila, the proceedings shall be instituted in the Juvenile
and Domestic Relations CT.
SEC 1 has been repeated by SEC 19 (7) of BP 129 (The judiciary
Reorganization Act of 1980)- therefore the RTC in the exercise of its
exclusive original jurisdiction shall take cognizance of all civil actions
and special proceedings falling within the exclusive original
jurisdiction of a Juvenile and Domestic relations CT.
Under BP 129 therefore SEC 1 of Rule 99 should read:
SEC 1 Venue. A person desiring to adopt another or have custody
of a minor shall present his petition to the RTC of the province or
municipality in which he resides.
Define adoption.
Adoption is a judicial act which creates between two persons a
relationship similar to that which results from legitimate paternity
and filiation.
What is the nature of adoption proceedings?
Adoption proceedings are always judicial; adoption cannot be
granted administratively. Adoption proceedings are further in rem
for which reason publication of the petition is required by the Rules
of CT as constructive notice to the whole world and without which
the CT will not acquire jurisdiction over the case.
SEC 2. Contents of petition.
The petition for adoption shall contain the same allegations required in a
petition for guardianship, to wit:
a. The jurisdictional facts;
b. The qualifications of the adopter;
c. That the adopter is not disqualified by law;
d. The name, age, and residence of the person to be adopted and of
his relatives or of the persons who have him under their care;
e. The probable value and character of the estate of the person to be
adopted.
Reason for (e): under the Family Code when an adopted dies,
generally of his estate goes to his natural parents and the other
half to his adopting parents. Par. (e) is required to protect the
interest of the child and to prevent the adopting parent from taking
advantage over the estate of the child.
Who may adopt?
A person in order to adopt must be:
1. OF AGE
2. in possession of FULL CIVIL CAPACITY AND LEGAL RIGHTS (meaning
that he us not subject to any incapacity or disability like
insanity or imbecility, civil interdiction, deaf-mutism, insolvency
etc.)
3. in a POSITION TO SUPPORT AND CARE for his children. LEGITIMATE OR
ILLEGITIMATE, in keeping with the means of the family (means
include not only financial capacity but also physical, moral,
psychological and spiritual capability to care for and rear the
child to be adopted)
4. AT LEAST 16 YEARS OLDER than the child to be adopted unless;
a. the adopter is the parent by nature of the child to be
adopted or
b. the adopter is the spouse of the legitimate parent of the
person to be adopted
Take note of the ff provisions of the Family Code governing the
qualifications and disqualifications of an adopter.
Art 183 of the Family Code provides for the qualifications as
enumerated above.
Art 184 The following persons may not adopt:
1. the guardian with respect to the ward prior to approval of the
final accounts rendered upon the termination of their
guardianship relation
2. Any person who has been convicted of a crime involving moral
turpitude
3. An alien except:
a. a former Filipino citizen who seeks to adopt a relative by
consanguinity
b. one who seeks to adopt the legitimate child of his or her
Filipino spouse
c. One who is married to a Filipino citizens and seeks to adopt
jointly with his or her spouse a relative by consanguinity of
the latter.
Aliens not included in the foregoing exceptions may adopt Filipino
children in accordance with the rules on inter-country adoption as may
be provided by law.
With respect to Art. 184(2) of the Family Code, is the
disqualification removed if the offender has been granted pardon?
OROSA NOTES
No, the disqualification is not removed by the pardon given to the
offender, since the lack of necessary moral qualification to adopt a
child remains even if the offender has been pardoned.
What is the rule with respect the spouses seeking to adopt a child?
Under Art 185 of the Family Code, husband and wife must jointly
adopt, except in the following cases:
a. when one spouse seeks to adopt his own illegitimate child or
b. When one spouse seeks to adopt the legitimate child of the
other.
Who may be adopted?
Under Art 187 of the Family code the following may not be adopted:
1. a person of legal aged, unless he or she is a child by nature of
the adopter or his or her spouse or prior to the adoption said
person had been consistently considered and treated by the
adopter as his or her own child during minority
2. an alien with whose government the Republic of the Philippines
has no diplomatic relations
3. a person who has already been adopted unless such adoption
has been previously revoked or rescinded.
Why is adoption of an adult not allowed?
Subject to the exceptions above mentioned, there is no need for an
adult to be adopted because he is old enough to take care of himself
and does not have to depend on anyone else to do so.
SEC 3. Consent to adoption.
There shall be filed with the petition a WRITTEN CONSENT to the adoption
SIGNED BY THE CHILD,
if 14 years of age or over and not incompetent, and by the CHILD'S
SPOUSE, if any, and
by each of its KNOWN LIVING PARENTS who is
not insane or hopelessly intemperate or
has not abandoned such child, or
if there are NO SUCH PARENTS
by the general guardian or
guardian ad litem of the child, or
if the child is in the CUSTODY OF AN ORPHAN ASYLUM, children's home, or
benevolent society or person,
by the proper officer or officers of such asylum, home, or society, or
by such person;
but if the child is ILLEGITIMATE AND HAS NOT BEEN RECOGNIZED, the consent of
its father to the adoption shall not be required.
If the person to be adopted is OF AGE,
only his or her consent and that of the spouse, if any, shall be
required.
Upon presentation of the petition and the consent before the CT,
what shall the CT do?
The CT shall thereafter issue and order for hearing which shall:
1. fix the date and place for the hearing (the hearing shall be
scheduled not later than 6 months after entry of order)
2. Require the publication of such order once a week for three
consecutive weeks in a newspaper of general circulation.
SEC 4. Order for hearing.
If the PETITION and CONSENT filed are
sufficient in form and substance
the CT, by an order reciting the purpose of the petition,
shall fix a date and place for the hearing thereof,
which date shall NOT BE MORE THAN 6 MONTHS AFTER THE ENTRY of the order,
and
shall direct that a copy of the order be PUBLISHED before the hearing
at least once a week for 3 successive weeks in some newspaper of
general circulation published in the province,
as the CT shall deem best.
OROSA NOTES
SEC 5. Hearing and judgment.
Upon satisfactory proof in open CT on the date fixed in the order
1. that such order has been PUBLISHED as directed,
2. that the ALLEGATIONS OF THE PETITION ARE TRUE, and
3. that it is a PROPER CASE for adoption and
4. the petitioner or petitioners are ABLE TO BRING UP AND EDUCATE THE
CHILD PROPERLY,
the CT shall adjudge that thenceforth
1. the child is FREED FROM all legal obligations of obedience and
maintenance with respect to its natural parents,
EXCEPT the MOTHER when the child is adopted by her husband, and
2. is, to all legal intents and purposes, the CHILD OF THE PETITIONER OR
PETITIONERS, and
3. that its SURNAME IS CHANGED to that of the petitioner or petitioners.
The adopted person or child shall thereupon become the LEGAL HEIR OF HIS
PARENTS by adoption and shall also remain the LEGAL HEIR OF HIS NATURAL
PARENTS.
In case of the death of the adopted person or child, his PARENTS AND
RELATIVES BY NATURE, and not by adoption, shall be HIS LEGAL HEIRS.
What must the CT do during the hearing ?
On the date fixed for the hearing, the CT shall positively ascertain
the following before it issues the declaration for adoption:
1. compliance with the publication requirement
2. that the allegations of the petition are true
3. that it is a proper case for adoption
4. that the petitioner/s can bring up and educate the child
properly.
What should the petitioners present as evidence before the CT?
The following :
1. Affidavit of publication
2. 3 issues of publication
3. registry report/return card
4. Birth certificate
5. Affidavit of consent
6. income tax return
7. TCT, if any
8. clearance (police, NBI, CT)
9. Child Study Report/Home Study Report
SEC 6. Proceedings as to child whose parents are separated;
Appeal.
When husband and wife ARE DIVORCED OR LIVING SEPARATELY and apart from
each other, and
the question as to the care, custody, and control of a child or children of
their marriage is brought before a CFI by
1. PETITION OR
2. AS AN INCIDENT TO ANY OTHER PROCEEDING,
the CT, upon hearing the testimony as may be pertinent,
shall AWARD the care, custody, and control of each such child as will be
for its BEST INTEREST,
permitting the child to choose which parent it prefers to live with if it be
over 10 years of age,
UNLESS the parent so chosen be unfit to take charge of the child by
reason of
moral depravity,
habitual drunkenness,
incapacity, or
poverty.
If, upon such hearing, it appears that BOTH PARENTS ARE IMPROPER persons
to have the care, custody, and control of the child,
the CT may either designate the
1. PATERNAL OR MATERNAL GRANDPARENT of the child, or
2. his OLDEST BROTHER OR SISTER, or
3. some REPUTABLE AND DISCREET PERSON to take charge of such child, or
4. COMMIT it to any SUITABLE ASYLUM, CHILDREN'S HOME, OR BENEVOLENT
SOCIETY.
The CT may in conformity with the provisions of the Civil Code
1. order either or both PARENTS TO SUPPORT OR HELP SUPPORT said child,
IRRESPECTIVE of who may be its custodian, and
2. may make any order that is just and reasonable permitting the
parent who is deprived of its care and custody to VISIT the child or
have TEMPORARY CUSTODY thereof.
Either parent may APPEAL from an order made in accordance with the
provisions of this section.
No child UNDER 7 YEARS OF AGE shall be SEPARATED FROM ITS MOTHER,
UNLESS the CT finds there are compelling reasons therefor.
Art 213 FC : in case of separation of the parents, parental authority
shall be exercised by the parent designated by the CT. The CT shall
take into account all relevant considerations, especially the choice of
he child > 7 yrs of age, unless the parent chosen is unfit.
OROSA NOTES
The CT generally does the following order :
1. The innocent spouse
2. if the child is below 7 yrs old mother
Except : when the CT finds that there are compelling reasons to
rule otherwise
3. if the child is over 7 yrs old, the child is permitted to choose
w/c parent he prefers to live with.
Except : IF the parent chosen is unfit by reason of moral
depravity, habitual drunkenness, incapacity or poverty
4. If both parents are unfit, parental authority shall be designated
to the following in the order indicated :
a. surviving grandparent, at the CTs discretion in case several
survive
b. oldest brother / sister, if over 21 yrs old and not unfit or
disqualified
c. childs actual custodian, if over 21 yrs old and not unfit or
disqualified
d. the child may be committed to an asylum/childrens
home/benevolent society
The controlling factor for the CTs decision is always the childs
best interest.
In any case,
1. Either parent may appeal from an order made
2. The CT my order either/both parents to support the child,
irrespective of who may be his custodian
3. The CT may permit visitorial rights or have temporary custody
of the child to the parent who is deprived of custody.
SEC 7. Proceedings as to vagrant or abused child.
When the parents of any minor child are
1. DEAD, or
2. by reason of long absence or legal or physical disability have
ABANDONED it, or
3. CANNOT SUPPORT it
through vagrancy, negligence, or
misconduct, or neglect or
4. REFUSE TO SUPPORT it, or
5. treat it with EXCESSIVE HARSHNESS or
6. give it CORRUPTING ORDERS, counsels, or examples, or
7. cause or allow it to engage in BEGGING, or
8. to COMMIT OFFENSES against the law,
the proper CFI, upon petition
filed by some REPUTABLE RESIDENT of the province setting forth the facts,
may issue an order
requiring such parents to SHOW CAUSE, or,
if the parents are DEAD OR CANNOT BE FOUND, requiring the FISCAL OF
THE PROVINCE to show cause,
at a time and place fixed in the order,
why the child should not be taken from its parents, if living; and
if UPON THE HEARING it appears that
the allegations of the petition are true, and
that it is for the best interest of the child,
the CT may make an ORDER
TAKING IT FROM ITS PARENTS, if living; and
COMMITTING it to any suitable orphan asylum, children's home, or
benevolent society or person
TO BE ULTIMATELY PLACED, by adoption or otherwise, IN A HOME FOUND
for it by such asylum, children's home, society or person.
SEC 8. Service of judgment.
Final orders or judgments under this rule
shall be SERVED BY THE CLERK upon the CIVIL REGISTRAR
of the city or municipality wherein the CT issuing the same is
situated.
What are the effects of adoption ?
Under Art 189 of the FC, adoption shall have the following effects :
1. For civil purposes, the adopted shall be deemed to be a
legitimate child of the adopters and both shall acquire the
RECIPROCAL RIGHTS AND OBLIGATIONS arising from the relationship
OROSA NOTES
of parent and child including the right of the adopted to use the
SURNAME of the adopter.
2. The parental authority of the parents by nature over the
adopted shall be terminated and vested in the adopters, except
that if the adopter is the spouse of the parent by nature of the
adopted, parental authority over the adopted shall be exercised
jointly by both spouses. And
3. The adopted shall remain an intestate heir of his parents and
other blood relatives.
Does adoption confer on the adopted child the citizenship of the
adopter ?
No, since citizenship involves political rights. Citizenship can be
conferred only by the State and cannot be g ranted by a citizen to
aliens through adoption, which creates only a relationship between
the adopter and the adopted.
SC Circular No 12 (1986) directed to all RTCs on the subject of
adoption:
The judges hearing adoption cases are directed to
1. to NOTIFY DSWD thru its local agency of the filing of adoption
cases or the pendency thereof;
2. to STRICTLY COMPLY with Art 33 of PD 6035
3. to PERSONALLY HEAR all adoption cases and desist from delegating
the reception of evidence of the petitioner to the Clerk of CT.
Give a brief outline of the procedure.
Adoption procedure ;
1. PREPARATION
Give necessary documents
a. Certificate of live birth
b. Certificate of surrender/ abandonment
c. Written consent of natural parents
d. Government institutions etc
2. FILING OF PETITION WITH THE RTC
See Sec 2 for contents of the petition
Petition must also state if the petition is a joint one and pray for
a declaration of adoption.
3. Once filed, records are kept strictly confidential.
5 submitted before it, the CT is satisfied of petitioners
Art 33 Case Study NO PETITION FOR ADOPTION shall be granted unless the
DSWD has made a CASE STUDY of the CHILD to be adopted, his NATURAL PARENTS
as well as the PROSPECTIVE ADOPTING PARENTS and has SUBMITTED its report and
recommendations on the matter to the CT hearing such petition. The DSWD shall
INTERVENE on behalf of the child if it finds, after such case study, that the petition
should be DENIED.
In any case in which the information from such records, books
or papers is needed the person or agency requesting the
release of the information may file a petition to the CT w/c
entered the decree of adoption for its release.
4. Copies of the petition shall be SENT TO DSWD or orphanage
institution, office of the SolGen and Civil Registrar if necessary
5. CASE STUDY
DSWD shall make a case study of the child to be adopted, his
natural parents as well as the prospective adopting parents and
submit its report and recommendations on the matter to the CT
hearing such petition. It shall intervene on behalf of the child if
it finds that after such case study that the petition should be
denied.
6. Order of Hearing
w/c shall not be more than 6 months from entry
7. PUBLICATION OF ORDER
for the hearing, once a week for 3 consecutive weeks in a
newspaper of general circulation.
8. HEARING.
Prove that the adopter has all the qualifications and none of the
disqualifications laid down by law. Use as exhibits the following
a. Affidavit of publication
b. 3 issues of the newspaper publication
c. registry registry report/return card
d. Birth certificate of child and adopter
e. Affidavit of consent of persons/institutions concerned
f. income tax return
g. clearance (police, NBI, CT)
9. CASE STUDY REPORT (background of the adopters and adopted)
and a HOME STUDY REPORT (environment)
prepared by the DSWD. SolGen, if present, may conduct x-
examination at this point. Decision rendered by the CT shall be
provisional
10. TRIAL BY CUSTODY
of 6 months or less to assess the adjustment and emotional
readiness for he legal union. During this period, parental
authority shall be vested upon the adopters. However, home
visitations shall be conducted.
11. DECREE OF ADOPTION
if after considering the DSWDs report and the evidence
qualifications and that trial custody has been completed and the
best interest of the child has been promoted.
THE DECREE OF ADOPTION shall be EFFECTIVE AS OF THE DATE THE
ORIGINAL PETITION WAS FILED and shall state the name by which
the child shall henceforth be known.
OROSA NOTES
If there is NO APPEAL by the OSG or any person interested, the
decision is FINAL.
12. Recording in the Local Civil Registrar and Annotation on the
Record of birth the adopted person is entitled to the issuance of
amended cirtificate of birth called the BLUE RIBBON birth
Certificate.

Is it proper to give custody of the child to its natural parents who

abducted the former from its adoptive parents?
In all cases of custody, care, education and property of children, the
latters welfare is paramount. The foremost consideration is the
moral, physical and social welfare of the child concerned .

Is notice to the SolGen required in adoption proceedings ?

No. Not required by law or rule requires such as condition
precendent or a jurisdictional pre-requisite.

When is failure to give notice to the childs natural mother excused ?

When she has abandoned her child.Sec 3 Rule 99 provides that only
the living parent who has not abandoned the child shall be required
to file his/her written consent to the adoption. Also when the
address of he mother was unknown. At any rate, adoption is a
proceeding in rem and that constructive notice is given thru the
publication.

Should a petition for adoption be denied on the ground that the

petitioners are non-residents and therefore trial custody as required
by the Child and Youth Welfare Code cannot be affected?
The law authorizes the CT, either upon its own or petitioners
motion, to dispense with the trial custody if it finds that it is to the
best interest of the child.
OROSA NOTES
RULE 100
RESCISSION AND REVOCATION OF ADOPTION
SEC 1. Who may file petition; grounds.
A MINOR or other INCAPACITATED PERSON may,
through a GUARDIAN OR GUARDIAN AD LITEM,
petition for the rescission or revocation of his or her adoption for the
SAME CAUSES THAT AUTHORIZE THE DEPRIVATION OF PARENTAL AUTHORITY.
THE ADOPTER may, likewise, petition the CT for the rescission or revocation
of the adoption in any of these cases:
a. If the adopted person has attempted against the life of the adopter;
b. When the adopted minor has abandoned the home of the adopter
for more than 3 years;
c. When by other acts the adopted person has repudiated the
adoption.
SEC 2. Order to answer.
The CT in which the petition is filed shall issue an order requiring the
adverse party to answer the petition within 15 days from receipt of a
copy thereof. The order and a copy of the petition shall be served on the
adverse party in such manner as the CT may direct.
SEC 3. Judgment.
If upon trial, on the day set therefor, the CT finds that the allegations of
the petition are true, it shall render judgment ordering the rescission or
revocation of the adoption, with or without costs, as justice requires.
SEC 4. Service of judgment.
A certified copy of the judgment rendered in accordance with the next
preceding section
shall be SERVED upon the civil registrar concerned, within 30 days FROM
RENDITION thereof, who shall forthwith ENTER the action taken by the CT in
the register.
SEC 5. Time within which to file petition.
A minor or other incapacitated person must file the petition for rescission
or revocation of adoption
within the 5 years FOLLOWING HIS MAJORITY, or
if he was incompetent at the time of the adoption, within the years
following the recovery from such incompetency.
The adopter must also file the petition to set aside the adoption within 5
years FROM THE TIME THE CAUSE OR CAUSES GIVING RISE to the rescission or
revocation of the same took place.
What if the adopted is at least 18 yrs of age ?
Then the grounds for judicial rescission of the adoption are the same
as those prescribed for disinheriting an ascendant (Art 920 of the
NCC)
1. when the adopter has ABANDONED the adopted or induced the latter
to LIVE A CORRUPT OR IMMORAL LIFE or ATTEMPTED AGAINST THE LATTERS
VIRTUE
2. when the adopter has been CONVICTED OF AN ATTEMPT AGAINST THE LIFE
of the adopted, his spouse, descendants or ascendants
3. when the adopter has ACCUSED THE ADOPTED of a crime for which the
law prescribes imprisonment for at least 6 yrs, if the accusation has
been FOUND TO BE FALSE
4. when the adopter has been CONVICTED OF ADULTERY OR CONCUBINAGe
with the spouse of the adopted
5. when the adopter by fraud, violence, intimidation or undue influence
causes the adopted to MAKE A WILL OR CHANGE one already made
6. the LOSS OF PARENTAL AUTHORITY for causes specified in the FC
7. the REFUSAL TO SUPPORT the adopted without justifiable cause
8. an ATTEMPT by one of the adopting parents AGAINST THE LIFE OF THE
OTHER unless there had been conciliation between them
What is the PROCEDURE ?
The procedure is as follows :
1. the petitioner shall FILE A PETITION
2. upon filing of said petition the CT shall issue an ORDER REQUIRING ALL
THE ADVERSE PARTIES TO ANSWER the petition w/in 15 days from receipt
of the copy thereof
3. The order and a copy of the petition shall be SERVED on the adverse
party in such manner as the CT may direct
4. If, upon trial, the CT finds that the allegations of the petition are
true, it shall RENDER JUDGMENT ordering the rescission of the adoption
with or without costs as justice requires
5. a certified copy of the judgment ordering the rescission of the
adoption shall BE SERVED UPON THE CIVIL REGISTRAR concerned w/in 30
days from rendition thereof
6. Registrar shall forthwith ENTER the action taken by the CT IN THE
REGISTER
What is the time within which to file the petition ?
OROSA NOTES

FILED BY TIME TO FILE THE

PETITION

If filed by a MINOR or w/in 5-yr period

other INCAPACITATED following his majority
person
If he was INCOMPETENT w/in 5 yrs following
at the time of the recovery from such
adoption incompetency

if filed BY THE ADOPTER w/in 5 yrs from the

time the cause or
causes giving rise to
the rescission of the
same took place

What are the effects of a judicial rescission of the adoption?

Under Art 193 of the FC ,
Minor has not reached The CT in the same
the age of majority AT proceeding shall
THE TIME of the judicial reinstate the parental
rescission of the authority of the
adoption parents
UNLESS, the parents
are disqualified or
incapacitated, in w/c
case the CT shall
appoint a guardian
over the person and
property of the minor
The adopted person is CT shall appoint in the
physically of mentally same proceeding a
handicapped guardian over the
person and property
or both

Also, all RECIPROCAL RIGHTS AND OBLIGATIONS between the adopters and
the adopted ARISING FROM THE RELATIONSHIP OF PARENT AND CHILD shall
be EXTINGUISHED.
The adopted shall LOSE THE RIGHT T O USE THE SURNAMES of the
adopters and shall RESUME HIS OR HER SURNAME PRIOR to the adoption.
The CT shall accordingly order the amendment of the records in
the proper registries.
OROSA NOTES
RULE 101
PROCEEDINGS FOR HOSPITALIZATION OF
INSANE PERSONS

SEC 1. Venue; Petition for commitment. SEC 2. Order for hearing.

A petition for the commitment of a person If the petition filed is SUFFICIENT IN FORM AND SUBSTANCE,
to a hospital or other place for the insane the CT, by an ORDER
may be filed with the CFI of the province RECITING THE PURPOSE of the petition,
where the person alleged to be insane is found. shall
1. FIX a date for the HEARING thereof, and
The petition shall be filed by 2. copy of such order shall be SERVED
1. the DIRECTOR OF HEALTH a. on the person alleged to be insane, and
in the all cases where, in his opinion, b. to the one having charge of him, or
such commitment is c. on such of his relatives
for the public welfare, or residing in the province or city
for the welfare of said person as the judge may deem proper.
who, in his judgment, is insane, and The CT shall furthermore order the sheriff
2. SUCH PERSON or to PRODUCE the alleged insane person,
3. the ONE HAVING CHARGED of him if possible, on the date of the HEARING.
is OPPOSED TO HIS BEING taken to a hospital or
other place for the insane. SEC 3. Hearing and judgment.
Upon SATISFACTORY PROOF,
in open CT on the date fixed in the order,
that the commitment applied for is
Who should file a petition for commitment of an insane person ? for the public welfare or
1. the DIRECTOR OF HEALTH for the welfare of the insane person, AND
in the all cases where, in his opinion, that his relatives are unable for any reason
such commitment is to take proper custody and care of him,
for the public welfare, or the CT shall order his commitment
for the welfare of said person to such hospital or other place for the insane
who, in his judgment, is insane, and as may be recommended by the Director of Health.
such person the ONE HAVING CHARGED of The CT shall make proper provisions for the CUSTODY
him is OPPOSED TO HIS BEING taken to a of property or money belonging to the insane
hospital or other place for the insane UNTIL a guardian be properly appointed.

Where may a petition for hospitalization of insane persons be filed ?
With the RTC of the province where the person alleged to be insane
is found.
In what cases should said petition be filed by the Director of Health?
In all cases where in his opinion such commitment is
1. for the public welfare
2. for the welfare of a person who in the Directors judgment is
insane and such person or the one having charge of him is
opposed to his being taken to a hospital or other place for the
insane.
Sec 4. Discharge of insane.
When, in the opinion of the DIRECTOR OF HEALTH,
the person ordered to be committed
to a hospital or other place for the insane
is TEMPORARILY OR PERMANENTLY CURED, or
may be released WITHOUT DANGER
he may file the proper petition with the CFI
WHICH ORDERED the commitment.
SEC 5. Assistance of fiscal in the proceeding.
It shall be the duty of the
provincial fiscal or
in the City of Manila the fiscal of the city,
OROSA NOTES
to
1. PREPARE THE PETITION for the Director of Health and
2. REPRESENT HIM in CT in all proceedings
arising under the provisions of this rule.
OROSA NOTES
Rule 102 Sec 1 provides that except as otherwise provided by law,
RULE 102 the writ of habeas corpus shall extend to :
HABEAS CORPUS 1. all cases of ILLEGAL CONFINEMENT OR DETENTION by which any person is
deprived of his liberty;
2. all cases where the RIGHTFUL CUSTODY of any person is WITHHELD FROM
SEC 1. To what habeas corpus extends. THE PERSON ENTITLED thereto.
Except as otherwise expressly provided by law, The writ is applicable to 2 distinct classes of cases : those wherein
the writ of habeas corpus shall extend to all cases of the restraint or detention is by private authority and those wherein
ILLEGAL CONFINEMENT OR DETENTION the detention is by commitment under legal process.
1. by which any person is DEPRIVED OF HIS LIBERTY, or
2. by which the RIGHTFUL CUSTODY of any person is WITHHELD What are the GROUNDS for relief by habeas corpus ?
from the person entitled thereto. Broadly speaking, the grounds for relief by habeas corpus are :
1. deprivation of any fundamental or CONSTITUTIONAL RIGHTS
2. LACK OF JURISDICTION of the CT to impose the sentence
What is habeas corpus ? 3. EXCESSIVE PENALTY
It is a writ directed to the PERSON DETAINING ANOTHER and COMMANDING
HIM TO PRODUCE THE BODY of the prisoner at a certain time and place, What is the FIRST SUBJECT OF INQUIRY upon a petition for a writ of
with the day and cause of his caption and detention, to do, submit habeas corpus ?
to and receive whatsover the CT or judge awarding the writ shall WON the petitioner is RESTRAINED OF HIS LIBERTY.
consider in that behalf. Only where such restraint obtains, is the CT required to inquire into
the cause of detention and if the alleged cause is found to be
What is the NATURE of habeas corpus ? unlawful then the writ shall be granted and the petitioner
The writ of habeas corpus was devised and exists as a SPEEDY AND discharged.
EFFECTUAL REMEDY to relieve persons from unlawful restraint and as
the BEST AND ONLY SUFFICIENT DEFENSE OF PERSONAL FREEDOM. Is a person RELEASED ON BAIL entitled to writ ?
It is a CIVIL PROCEEDING and the doctrine of the criminal law to ex No ! A person discharged on bail is not in prison or restrained of his
post facto law does not apply. liberty.
Upon their surrender to a proper officer by their sureties it has been
What is the ESSENTIAL PURPOSE of the writ of habeas corpus ? held that habeas corpus will lie. (?)
The prime specification of an application for a writ of habeas corpus
is restraint of liberty. The essential objects and purpose of the writ Will a writ of habeas corpus lie if detention is made without a
of habeas corpus is to INQUIRE INTO ALL MANNER OF INVOLUNTARY warrant of arrest ?
RESTRAINT as distinguished from voluntary and to relieve a person Depends. Because Rule 113 Sec 5 of the Rules of CT provides for
therefrom if such restrains is illegal. Any restrain which will preclude conditions for a valid arrest without a warrant :
freedom of action is sufficient. 1. that the person to be arrested has just
committed an offense, and
Are habeas corpus proceedings concerned with proceedings in the 2. that the arresting officer/private person has
main case ? personal knowledge of the facts indicating
NO! Proceedings in habeas corpus are SEPARATE AND DISTINCT from that the person to be arrested is the one who
the main case from w/c the proceedings spring. They deal simply committed the offense. The function of the special
with the detention of the prisoner and stop with the authority by proceeding is to inquire into the legality of ones detention.. to
virtue of which he is detained. ascertain whether the detention was illegal or not, the CT before
It is a COLLATERAL REMEDY, independent of the legal proceeding under rendering the decision looked into whether their questioned arrests
which the detention is sought to be justified. were made in accordance with law. For if the arrests were
made in accordance with law, it would follow that the detention
To what CASES do habeas corpus apply ? resulting from such arrests were made also in accordance with
law. (Umil vs Ramos)
OROSA NOTES
When will a petition for a writ of habeas corpus lie ?
When someone is wrongfully prevented from exercising the legal
custody to which he is entitled over another person.
A person being an aunt of the minors is not by virtue of her
relationship alone entitled to their legal custody. A father, although
guilty of adultery, has a better title than the aunt to the custody of
the minors.
The GR is that the writ of habeas corpus will not issue if the
detention is voluntary. Give exception, if any.
When the person detained is a minor.
Give instances when writ of habeas corpus will lie.
Some instances are :
1. when the CT has NO JURISDICTION OVER THE SUBJECT MATTER of the
crime
2. when the CT has NO JURISDICTION OVER THE PERSON of the accused
3. when a person was FORCED TO PLEAD GUILTY on charges instituted
against him because of UNDUE TORTURES AND INTIMIDATIONS and
JUDGMENT WOULD BE NULL AND VOID
4. EXCESSIVE bond or penalty
5. CT imposed a PENALTY NOT PROVIDED BY LAW
6. when the trial of the accused in a criminal case has been POSTPONED
BEYOND A REASONABLE PERIOD to the prejudice and OBJECTIONS of the
defendants
7. when the person DETAINED IS TAKEN FROM A FOREIGN COUNTRY for the
purpose of evaluating the reasonableness of extradition
8. when the purpose of the writ is to GIVE RETROACTIVE EFFECT TO A PENAL
LAW and the judge has lost jurisdiction over the case.
9. when an alien is being confined illegally and proposed for expulsion
of deportation
10. when an alien is allegedly being illegally prevented from landing in
the Philippines
11. to obtain temporary freedom for a defendant in a criminal case
confined for failure to post the necessary bail and the fiscal
unjustifiably delays trial by repeated demands
12. to enable parents of a minor to regain custody of said child even if
the child is voluntarily in the custody of a 3P
Will a writ of habeas corpus lie in case a person is arrested by
giving testimony w/c is in violation of his constitutional right against
self-incrimination ?
Yes. Rule 102 Sec1 extends the writ to, Except as otherwise
expressly provided by law, all cases of
illegal confinement or detention by which any person is
deprived of liberty.
Does habeas corpus lie AFTER JUDGMENT HAS BECOME FINAL ?
Yes. As an extraordinary remedy, habeas corpus must be liberally
construed so as to protect a person whose liberty is at stake.
(Chavez vs CA)
In Celeste vs People, the writ may still be invoked if there is proof
that ones liberty was illegally curtailed even if the CT had authority
to act at the outset UNLESS the order or decision of said CT or
tribunal has become final and executory. In such case, the only
remedy is executive clemency. But note that in this case, the
detention or confinement is the result of the process issued by the
CT or by virtue of a judgment or sentence.
SEC 2. Who may grant the writ.
The writ of habeas corpus may be GRANTED BY
1. the SC , or any member thereof,
on ANY DAY AND AT ANY TIME, or
2. by the CA or any member thereof
in the instances AUTHORIZED BY LAW,
and if so granted it shall be ENFORCEABLE
ANYWHERE IN THE PHILIPPINES, and
may be made RETURNABLE
a. before the CT or any member thereof, or
b. before the CFI , or any judge thereof
for the HEARING AND DECISION on the merits.
3. It may also be granted by a CFI , OR A JUDGE THEREOF,
on any day and at any time,
and RETURNABLE before himself,
ENFORCEABLE ONLY WITHIN HIS JUDICIAL DISTRICT.
OROSA NOTES
warranto (Sec 5, ART VIII 1897 COnsti; Sec 9(1) and Sec 21(1) of
BP 129).
Who may grant a writ of habeas corpus and where enforceable and In the absence of a law providing that the decisions, orders and
where returnable. rulings of a CT martial or the office of the chief of staff can be
Sec 2 provides : questioned only before the CA and the SC, RTC can exercise similar
CT GRANTING WHEN MAY IT RETURNABLE jurisdiction. (Commendador vs de Villa)
ISSUE
/ ENFORCEABLE
SEC 3. Requisites of application therefor.
the SC , or on ANY DAY before the CT Application for the writ shall be
any member AND AT ANY or any by PETITION
SIGNED AND VERIFIED either by
thereof TIME member
/ ANYWHERE IN thereof, or the party for whose relief it is intended, or
THE before the CFI by some person on his behalf, and
PHILIPPINES , or any judge shall SET FORTH:
thereof a. That the person in whose behalf the application is made
by the CA or instances before the CT is IMPRISONED OR RESTRAINED of his liberty;
any member AUTHORIZED BY or any b. The officer or name of the person
thereof LAW member by whom he is so imprisoned or restrained; or,
/ ANYWHERE IN thereof, or if both are unknown or uncertain,
THE before the CFI such officer or person may be described by an ASSUMED
APPELLATION, and
PHILIPPINES , or any judge
thereof the person who is SERVED WITH THE WRIT SHALL BE DEEMED
THE PERSON INTENDED;
CFI , OR A any day and before himself
c. The place WHERE he is so imprisoned or restrained, if known;
JUDGE THEREOF at any time
d. A COPY OF THE COMMITMENT OR CAUSE OF DETENTION of such person,
/ONLY WITHIN
if it can be procured without impairing the
HIS JUDICIAL
efficiency of the remedy; or,
DISTRICT
if the imprisonment or restraint is WITHOUT ANY LEGAL AUTHORITY,
such FACT SHALL appear.
What about the special jurisdiction of the MTC/MCTC to hear and
decide petitions for writs of habeas corpus?
BP 129, Sec 35 provides that in the absence of all the RTC judges
What are the REQUISITES for the application for a writ of habeas
in the provice or city anywhere the absent RTC Judges sit
corpus ?
The requisites are
Must the RTC dismiss he petition for a writ of habeas corpus if the
1. the application should be by petition
prisoner has already died ?
2. petition should be signed and verified by the party for whose relief it
The writ of habeas corpus as a remedy became moot and academic
is intended or by some person on his behalf
due to the death of the person allegedly restrained of liberty, but
3. if should set forth the following averments :
the issue of custody remained which the CT must has to resolve.
a. that the person in whose behalf the application is filed is
(Eugenio ve Valdez)
imprisoned or restrained of his liberty
b. the officer or name of the person by whom he is imprisoned or
Does the RTC have jurisdiction to entertain a petition for certiorari
restrained
appealing a decision rendered by it releasing prisoners on a petition
c. the place where he is imprisoned
for a writ of habeas corpus ?
d. a copy of the cause of commitment or detention of such person
The RTC has CONCURRENT JURISDICTION with the CA and SC over
petitions for certiorari, prohibition or mandamus against inferior CTs
and other bodies and on petitions for habeas corpus and quo
OROSA NOTES
In (b) if both persons are unknown or uncertain, it is sufficient if the
officer be described by an assumed appellation and the person who
is served with the writ shall be deemed the person intended SEC 4. When writ not allowed or discharge authorized.
In (d) the copy of the commitment or cause of detention should be A. If it appears that the person alleged
set forth if it can be procured w/o impairing the efficiency of the to be restrained of his liberty
remedy. The petition should also state that the imprisonment or is in the CUSTODy of an officer
detention is w/o legal authority, if this be a fact. 1. under process ISSUED BY A CT OR JUDGE or
2. by virtue of A JUDGMENT OR ORDER OF A CT of record, and
Who may prosecute habeas corpus proceedings ? that the CT or judge HAD JURISDICTION
The writ of habeas corpus may be prosecuted by a person unlawfully to issue the process,
imprisoned or restrained of his liberty or by some person in his render the judgment, or
behalf. make the order,
the WRIT SHALL NOT BE ALLOWED; or
What is the effect where a petition and return contain contrary
allegations ? B. if the JURISDICTION APPEARS AFTER THE WRIT IS ALLOWED,
In habeas corpus cases,, in the absence of denial or appropriate the person shall not be discharged by reason of
pleading avoiding their effects, averments of facts in the return will any INFORMALITY OR DEFECT in the process, judgment, or order.
be taken as true and conclusive regardless of the allegations
contained in the petition. C. Nor shall anything in this rule be held to authorize
the discharge of a person charged with or convicted
What exhibits must be attached to the petition ? of an offense in the Philippines, or
Generally, of a person suffering imprisonment
1. a copy of the WARRANT, ORDER OR PROCESS by virtue of which the UNDER LAWFUL JUDGMENT.
petitioner is restrained of his liberty or
2. copy of the RECORD OF THE PROCEEDINGS attacked
must be attached to the petition or the essential part thereof Unless a What does Rule 102 Sec 4 provide?
legal excuse for the omission is shown, as where it sufficiently appears It provides for different instances when a writ of habeas corpus will
that respondent holds no warrant or order of detention. The CT, NOT BE ALLOWED or the person allegedly restrained will NOT BE
however, may regard the omission as immaterial. DISCHARGED:
1. when the person allegedly restrained of his liberty is in custody of
What must the petitioners establish in order that a writ of habeas an officer UNDER PROCESS ISSUED BY A CT or judge BY VIRTUE OF A
corpus be issued ? JUDGMENT OF ORDER of a CT of record (**w/c has jurisdiction to issue
The petitioners must establish by COMPETENT AND CONVINCING EVIDENCE such process and render judgment)
that the missing person in whose behalf the petition is filed is UNDER 2. when a person is CHARGED WITH OR CONVICTED of an offense in the
THE CUSTODY OF THE RESPONDENTS. (Ngata-an vs Balweg) Philippines
3. or when a person is suffering from imprisonment UNDER LAWFUL
JUDGMENT

Will a writ be granted where confinement is legal, though ILLEGAL AT

THE BEGINNING ?
Where the petitioners are confined by virtue of charges treason and
they filed to avail themselves of the opportunity to be released on
bail, the writ of habeas corpus will not be granted even if their
detention prior to the filing of said charges was w/o any legal
authority.
OROSA NOTES
May a writ issue when a person is detained pursuant to a lawful
order of an ADMINISTRATIVE BOARD?
When an alien is detained by the BID pursuant to order of
deportation by the Deportation Board, the CFIs have no power to
release such alien on bail even in habeas corpus proceedings
because there is no law authorizing it. (Republic vs Cloribel)
Can ERRORS OF JUDGMENT be corrected by habeas corpus ?
No. When the CT has jurisdiction of the offense and the person of
the accused, its judgment, order of decree is valid and is not subject
to collateral attack by habeas corpus, for it CANNOT BE made to
perform the function of a WRIT OF ERROR.
This holds true even if the judgment, order or decree was
erroneous.
Give instances when a writ is not allowed.
The writ of habeas corpus cannot be granted under the following
circumstances.
1. when a judgment of conviction was reversed on appeal and the
petitioner is held for new charges pursuant to the order of the
appellate CT
2. in a case of parricide wherein the decision of the TC was affirmed by
the Sc but the decision was signed only by 8 judges
3. when a pardon issued in favor of the petitioner has been revoked
before acceptance
4. when an alien is denied the right to enter the Philippines and there
is no proof that the custom officials abused their authority
5. when the petitioner was sentenced to imprisonment during the
Japanese occupation of the Philippines for an offense not of political
complexion
6. when the petitioner is serving sentence promulgated by competent
CT, but the records of the proceedings were lost or destroyed
7. a judge of the CFI has no authority, thru a writ of habeas corpus, to
review errors of law, fact allegedly committed by another judge in a
criminal prosecution
8. questions of DOUBLE JEOPARDY AND PRESCRIPTION of the offense is not
revisable by means of writ of habeas corpus
Is a petition for a writ of habeas corpus the proper remedy if the
prisoner is detained upon a warrant of arrest issued by virtue of an
information filed by a fiscal who conducted the preliminary
investigation w/o notice to the accused ?
No ! habeas corpus would not lie after the warrant of commitment
was issued by the CT on the basis of the information filed against
the accused.
The proper remedy is to move to quash the warrant of arrest and or
the information. (Paredes vs Sandiganbayan)
SEC 5. When the writ must be granted and issued.
A CT or judge authorized to grant the writ must,
when a PETITION therefor is presented and
it appears that the WRIT OUGHT TO ISSUE,
1. GRANT the same forthwith, and
2. immediately thereupon the CLERK OF THE CT
shall ISSUE THE WRIT under the seal of the CT;
or IN CASE OF EMERGENCY,
the judge may issue the writ under HIS OWN HAND,
and may depute any officer or person to serve it.
What does Sec 5 provide ?
Under this rule, once the proper CT or judge grants a petition for a
writ of habeas corpus clerk of CT is REQUIRED TO ISSUE THE WRIT
under the seal of CT.
However, in CASE OF EMERGENCY there is NOTHING TO PREVENT the judge
from issuing the writ under his own hand. In such case, the judge
may depute any officer or person to serve it.
IS the issuance of a writ of habeas corpus discretionary?
Yes. While habeas corpus is a writ of right, it will not issue as a
matter of course or as a mere perfunctory operation upon the filing
of the petition; judicial discretion is exercised in its issuance and
such facts must be made to appear to the judge to whom the
petition thereof is presented as in his judgment, prima facie entitle
the petitioner to the writ.
SEC 6. To whom writ directed, and what to require.
In case of imprisonment or restraint BY AN OFFICER,
the WRIT SHALL BE DIRECTED TO HIM, and
shall command him to have the body
of the person restrained of his liberty
before the CT or judge designated in the writ
at the TIME AND PLACE THEREIN SPECIFIED.
In case of imprisonment or restraint BY A PERSON NOT AN OFFICER,
the WRIT SHALL BE DIRECTED TO AN OFFICER,
and shall command him
1. to TAKE and HAVE the body of the person restrained of his liberty
before the CT or judge designated in the writ
at the TIME AND PLACE THEREIN SPECIFIED, and
2. to SUMMON THE PERSON by whom he is restrained
OROSA NOTES
THEN and THERE to appear before said CT or judge
to SHOW THE CAUSE of the imprisonment or restraint. What does Sec 7 provide ?
It PRESCRIBES
What does Sec 6 provide ? 1. the matter of designating the person to be produced
It points out to whom the writ shall be directed and what said writ 2. who may serve the writ
requires. A difference should be noted as to the requirements of the 3. how such may be legally served
writ when the imprisonment or the restraint is made by an officer
or when it is made by a person not an officer : What should the writ contain ?
1. In case of imprisonment or restraint BY AN OFFICER, the writ The writ should designate the prisoner by his name, if known. If not
shall be directed to him, and shall command him to have the body known, he must be properly described or identified.
of the person restrained of his liberty before the CT or judge
designated in the writ at the time and place therein specified. Who may SERVE the writ ?
2. In case of imprisonment or restraint BY A PERSON NOT AN OFFICER, It may be served :
the writ shall be directed to an officer, and shall command 1. by the sheriff or other proper officer, or
him to take and have the body of the person restrained of his liberty 2. by a person deputed by the CT or judge
before the CT or judge designated in the writ at the time and place
therein specified, and to summon the person by whom he is restrained How shall SERVICE of the writ be made ?
then and there to appear before said CT or judge to show the cause Service of the writ shall be made in the following manner :
of the imprisonment or restraint. 1. by leaving the ORIGINAL with the person to whom it is directed and
2. PRESERVING A COPY on which to make return of service.
Distinguish a citation to show cause against the issuance of the writ If that person CANNOT BE FOUND, or
and peremptory writ. has NOT THE PRISONER IN HIS CUSTODY,
A citation to show cause why the writ of habeas corpus should not then the service shall be made on ANY OTHER PERSON HAVING OR
issue is to be distinguish from the peremptory writ of habeas EXERCISING SUCH CUSTODY.
corpus. The latter contains an UNCONDITIONAL ORDER for a person to Return of the writ must be verified.
produce the body of the detained person in CT at a specified time
and place in the writ.
SEC 8. How writ executed and returned.
The officer to whom the writ is directed shall
SEC 7. How prisoner designated and writ served. 1. CONVEY the person
The person to be produced so imprisoned or restrained, and
should be DESIGNATED in the writ by his name, if known, named in the writ,
but if his name is not known before the JUDGE ALLOWING THE WRIT, or,
he may be otherwise described or identified. in case of his ABSENCE OR DISABILITY,
The writ may be SERVED IN ANY PROVINCE before some OTHER JUDGE OF THE SAME CT,
1. by the sheriff or other proper officer, or on the DAY SPECIFIED in the writ,
2. by a person deputed by the CT or judge. unless, from sickness or infirmity of the person directed to be produced,
Service of the writ shall be made such person cannot, without danger, be brought before the CT or judge;
1. by leaving the ORIGINAL with the person to whom it is directed and and
2. PRESERVING A COPY on which to make return of service. 2. the officer shall make due RETURN of the writ,
If that person CANNOT BE FOUND, or together with the DAY and the CAUSE of the caption and restraint of such
has NOT THE PRISONER IN HIS CUSTODY, person according to the command thereof.
then the service shall be made on ANY OTHER PERSON HAVING OR
EXERCISING SUCH CUSTODY.
How is the writ executed ?
Under this rule the execution of the writ by the officer to whom
the writ is directed shall be done by conveying the person
OROSA NOTES
imprisoned or restrained who is named in the writ before the judge
allowing such writ, or in case of his absence or disability, before SEC 10. Contents of return.
some other judge of the same CT on the day specified in the writ. When the person to be produced is imprisoned or restrained BY AN
The exception to this rule is when the person directed to be OFFICER,
produced is suffering from sickness or infirmity and cannot w/o the person who makes the return shall state therein,
danger be brought before the CT or judge. and in other cases the person in whose custody the PRISONER IS FOUND
shall state,
IN WRITING to the CT or judge before whom the writ is returnable,
SEC 9. Defect of form. plainly and unequivocably:
No writ of habeas corpus can be disobeyed for defect of form, a. Whether he HAS OR HAS NOT THE PARTY IN HIS CUSTODY or power, or
if it sufficiently appears therefrom in whose custody or under whose under restraint;
restraint the party imprisoned or restrained is held and the CT or judge B. IF HE HAS the party in his custody or power, or under restraint,
before whom he is to be brought. the AUTHORITY AND THE TRUE AND WHOLE CAUSE thereof, set forth
at large,
with a COPY OF THE WRIT, order, execution, or other process, if
When is a writ FATALLY DEFECTIVE ? any, UPON WHICH THE PARTY IS HELD;
If it does not appear therefrom in whose custody or under whose c. If the party is in his custody or power or is restrained by him, and is
restraint the party imprisoned or restrained is held and the CT or NOT PRODUCED, particularly
judge before whom he is to be brought. THE NATURE AND GRAVITY OF THE SICKNESS OR INFIRMITY of such
party by reason of which he cannot, without danger, be brought
What does this rule provide ? before the CT or judge;
A defect of form of a writ of habeas corpus will not warrant d. If he has had the party in his custody or power, or under restraint,
disobedience to the writ fi it sufficiently appears in said writ: and has TRANSFERRED SUCH CUSTODY OR RESTRAINT TO ANOTHER,
1. in whose custody ro under whose restraint the party imprisoned or particularly
restrained is held TO WHOM,
2. the CT or judge before whom he is to be brought. at what TIME,
for what CAUSE, and
BY WHAT AUTHORITY such transfer was made.

When is a RETURN SUFFICIENT ?

A return is not invalid on account of technical inaccuracy or a defect
which is formal rather than substantial.
But while less certainty is required in returns to writs of habeas
corpus than in pleadings in civil actions, the return should contain
such statements respecting the detention as to appraise the
opposite party of what is intended to be proved and thereby give
him an opportunity to answer the return and these facts ought not
to appear by way of recitals only.
The return should be confined to the facts of the case and should
not allege matters immaterial and foreign to the proceeding or cast
aspersion and accusation upon the petition and his counsel.
A showing on the return is sufficient if it discloses the fact, w/in the
spirit and general purview of the law that he custody is legal.

Must the return be signed and sworn to ?

Yes. The rule does not only require that he return be SIGNED by the
person who makes it, but be SWORN to by him.
OROSA NOTES
The reason for this is the return may be considered prima facie
evidence of the cause of restraint, as provided in Sec 13.
SEC 12. Hearing on return; Adjournments.
When the writ is RETURNED BEFORE ONE JUDGE,
at a time WHEN THE CT IS IN SESSION,
he may forthwith ADJOURN THE CASE into the CT,
THERE TO BE HEARD AND DETERMINED.
The CT or judge before whom the writ is returned or adjourned
must IMMEDIATELY proceed to hear and examine the return, and such
other matters as are properly submitted for consideration,
UNLESS for good cause shown the hearing is adjourned,
in which event the CT or judge shall make such ORDER FOR THE SAFEKEEPING
of the person imprisoned or restrained as the nature of the case requires.
If the person imprisoned or restrained is NOT PRODUCED because of his
alleged sickness or infirmity,
the CT or judge MUST BE SATISFIED THAT IT IS SO GRAVE that such person
cannot be produced without danger, BEFORE PROCEEDING TO HEAR AND
DISPOSE of the matter.
On the hearing the CT or judge shall DISREGARD matters of FORM AND
TECHNICALITIES in respect to any warrant or order of commitment of a CT
or officer authorized to commit by law.
The phrase could not be construed to mean temporary release on
bail, because a person arrested or detained cannot be released on
bail unless the right if granted by law. The word safekeeping
means the act or state of keeping or being kept in safety and a
person arrested is not safely kept if he is released on bail.
SEC 13. When the return evidence, and when only a plea.
If it appears that the prisoner is in custody under a WARRANT OF
COMMITMENT IN PURSUANCE OF LAW,
the return shall be considered prima facie evidence of the CAUSE OF
RESTRAINT;
but if he is restrained of his liberty by any alleged PRIVATE AUTHORITY,
the return shall be considered only as A PLEA OF THE FACTS therein set
forth, and
the party claiming the custody must PROVE SUCH FACTS.
What does Sec 13 provide ?
Under this provision, a return may be considered as:
considered prima facie evidence of the CAUSE OF RESTRAINT;
1. prima facie evidence of the CAUSE OF RESTRAINT;
2. as A PLEA OF THE FACTS therein set forth

What does Sec 12 provide ?

That the judge in a habeas corpus proceeding must IMMEDIATELY
PROCEED TO HEAR AND DECIDE the case, UNLESS for good cause shown
the hearing is ADJOURNED, in which event the CT or judge shall make
such order for the SAFEKEEPING of the person imprisoned or
restrained as the nature of the case requires.
On the hearing the CT or judge shall DISREGARD matters of FORM AND
TECHNICALITIES in respect to any warrant or order of commitment of a
CT or officer authorized to commit by law.

When will the hearing be ADJOURNED ?

If upon the hearing it is apparent that proof of an existing fact
essential to a correct determination of controversy has been
omitted, and that such proof can be readily obtained and the
condition of the proceeding is such that, w/o injury to the opposite
party, the same be done, the CT should delay the final hearing of
the writ, reasonable time that proof of such material fact be
supplied.

What is meant by the phrase for the safekeeping of the person

imprisoned or restrained?
OROSA NOTES
SEC 14. When person lawfully imprisoned recommitted, and when
let to bail.
If it appears that the prisoner was LAWFULLY COMMITTED,
and is plainly and specifically charged in the warrant of commitment
with an OFFENSE PUNISHABLE BY DEATH,
he shall not be released, discharged, or bailed.
If he is lawfully imprisoned or restrained on a charge of having
committed an OFFENSE NOT SO PUNISHABLE,
he may be recommitted to imprisonment or ADMITTED TO BAIL in the
discretion of the CT or judge.
If he be admitted to bail, he shall forthwith FILE A BOND in such sum as
the CT or judge deems REASONABLE,
considering the circumstances of the prisoner and the nature of the
offense charged,
CONDITIONED for his appearance before the CT where the offense is
properly cognizable
to abide its order or judgment; and
the CT or judge shall certify the proceedings, together with the bond,
forthwith to the proper CT.
If such BOND IS NOT SO FILED, the prisoner shall be RECOMMITTED TO
CONFINEMENT.
Under what conditions shall a prisoner LAWFULLY IMPRISONED NOT BE
RELEASED, DISCHARGED OR BAILED ?
When the following conditions are present :
1. the prisoner appears to have been lawfully committed
2. the prisoner is plainly and specifically charged in the warrant of
commitment with an offense punishable by death
When is a person LAWFULLY COMMITTED or imprisoned be RELEASED ON
BAIL ?
IF the prisoner is lawfully imprisoned or restrained on a charge of
having committed an offense not so punishable then
1. he may be recommitted to imprisonment or restrained
2. he may be admitted to bail in the discretion of the CT or judge.
If he is admitted to bail he is required to file a bond in such sum
as the ct or judge deems reasonable considering
1. the circumstances of the prisoner
2. the nature of the offense charged
SEC 15. When prisoner discharged if no appeal.
When the CT OR JUDGE
1. HAS EXAMINED into the cause of caption and restraint of the prisoner,
and
2. is SATISFIED that he is unlawfully imprisoned or restrained,
he shall forthwith ORDER HIS DISCHARGE from confinement,
but such discharge shall NOT BE EFFECTIVE
until a copy of the ORDER HAS BEEN SERVED
on the officer or PERSON DETAINING the prisoner.
If the officer or person detaining the prisoner does NOT DESIRE TO APPEAL,
the prisoner shall be forthwith released.
When shall a prisoner be DISCHARGED ?
When the CT or judge
1. HAS EXAMINED into the cause of caption and restraint of the prisoner,
and
2. is SATISFIED that he is unlawfully imprisoned or restrained
he shall forthwith ORDER HIS DISCHARGE from confinement.
When shall the order of discharge become effective ?
Only after a copy thereof has been served on the officer of person
detaining the prisoner. If the Officer or person detaining the prisoner
does not appeal the prisoner is entitled to be released
immediately.
When is an APPEAL in habeas corpus PERFECTED ?
Within 24 HRS FROM NOTICE OF JUDGMENT.
Is this rule MANDATORY ?
Yes.The requirement that an appeal in habeas corpus should be
perfected within 24 hrs not 48 hrs is not only mandatory but also
jurisdictional. (Elepante vs Mandayag)
Who may take appeal ?
In the name of the person of officer detaining him.
When does an appeal become moot?
If the appeal from an order of the CT seeks to revive the writ of
habeas corpus issued by said CT regarding the confinement of a
person, which no longer exists (dead) the appeal becomes moot and
unnecessary.
OROSA NOTES
SEC 16. Penalty for refusing to issue writ, or for disobeying the
same.
1. A clerk of a CT who REFUSES TO ISSUE the writ
after allowance thereof and demand therefor, or
2. a person to whom a writ is directed,
a. who neglects or refuses to obey or make return of the same
according to the command thereof, or
b. makes false return thereof, or
c. who, upon demand made by or on behalf of the prisoner,
REFUSES TO DELIVER to the person demanding,
within six (6) hours after the demand
therefor,
A TRUE COPY OF THE WARRANT OR ORDER
OF COMMITMENT,
shall FORFEIT to the party aggrieved the sum of one thousand pesos, to
be recovered in a proper action, and
may also be punished by the CT or judge as for CONTEMPT.
What acts are unlawful ?
Sec 16 makes the following acts unlawful :
1. A clerk of a CT who REFUSES TO ISSUE the writ
after allowance thereof and demand therefor, or
2. a person to whom a writ is directed, who neglects or refuses to obey
or make return of the same according to the command thereof, or
3. a person to whom a writ is directed makes false return thereof, or
4. a person to whom a writ is directed, who, upon demand made by or
on behalf of the prisoner,
REFUSES TO DELIVER to the person demanding,
within six (6) hours after the demand
therefor,
A TRUE COPY OF THE WARRANT OR ORDER OF COMMITMENT
any person so set at liberty, or knowingly aids or assists therein,
shall FORFEIT to the party aggrieved the sum of one thousand pesos, to be
recovered in a proper action,
notwithstanding any colorable pretense or variation in the warrant of
commitment, and
may also be punished by the CT or judge granting writ as for CONTEMPT.
What acts are made unlawful by this provision ?
This provision makes it unlawful for any person who contrary to the
provisions of the above rule
1. KNOWINGLY RECOMMITS or imprisons the persons so set at liberty for
the same offense or pretended offense
2. knowingly AIDS OR ASSISTS in recommitting or imprisoning such
person/
By way of EXCEPTION : when the CT having jurisdiction of the cause
or offense issues a lawful order or proves recommitting such person
so discharged to imprisonment.
What is the penalty ?
The person found guilty shall be punished :
1. by forfeiture to be recovered in a proper action
2. contempt, on the discretion of the CT or judge

How may the above unlawful acts be punished ?

By:
1. by forfeiture to be recovered in a proper action
2. contempt, on the discretion of the CT or judge

SEC 17. Person discharged not to be again imprisoned.

A person who is SET AT LIBERTY UPON A WRIT OF HABEAS CORPUS
shall NOT BE AGAIN IMPRISONED for the SAME OFFENSE
UNLESS by the lawful order or process of a CT having jurisdiction of the
cause or offense;
and a person who KNOWINGLY, CONTRARY to the provisions of this rule,
recommits or imprisons, or causes to be committed or imprisoned,
for the same offense, or pretended offense,
OROSA NOTES

SEC 18. When prisoner may be removed from one custody to

another. SEC 19. Record of writ, fees and costs.
A person committed to prison, or in custody of an officer, for any criminal The proceedings upon a writ of habeas corpus shall be RECORDED by the
matter, clerk of the CT,
shall not be removed therefrom INTO THE CUSTODY OF ANOTHER OFFICER and upon the final disposition of such proceedings the CT or judge shall
UNLESS by make such ORDER AS TO COSTS as the case requires.
1. LEGAL PROCESS, or The fees of officers and witnesses shall be included in the costs taxed,
2. the prisoner be delivered to an inferior OFFICER TO CARRY TO JAIL, or, but NO officer or person shall have the RIGHT TO DEMAND
3. by ORDER OF THE PROPER CT OR JUDGE, be removed from one PAYMENT IN ADVANCE OF ANY FEES to which he is entitled by virtue of the
place to another within the Philippines FOR TRIAL, or proceedings.
4. in case of fire, epidemic, insurrection, or other NECESSITY OR PUBLIC When a person confined under color of proceedings in a CRIMINAL CASE is
CALAMITY; and discharged,
a person who, after such commitment, makes, signs, or countersigns any the costs shall be taxed against the Republic of the Philippines, and
order for such removal contrary to this section, shall forfeit to the party paid out of its Treasury;
aggrieved the sum of one thousand pesos, to be recovered in a proper when a person in custody by virtue or under color of proceedings in a
action. CIVIL CASE is discharged,
the costs shall be taxed
against him, or
When may a prisoner be REMOVED FROM CUSTODY ? against the person who signed the application for the writ, or
Under Sec 18, only in the following instances : both,
1. when the transfer of custody is be legal process as the CT shall direct.
2. when the prisoner be delivered to an inferior OFFICER TO CARRY TO JAIL
3. by ORDER OF THE PROPER CT OR JUDGE, be removed from one
place to another within the Philippines FOR TRIAL
4. in case of fire, epidemic, insurrection, or other NECESSITY OR PUBLIC Describe briefly the procedure for obtaining the writ of habeas
CALAMITY corpus . NOTE NOTE NOTE
The procedure is as follows :
This provision also makes it unlawful for a person who after his If the petition appears to be meritorious (Sec 5, rule 102)
commitment makes, signs, or countersigns any order for such the Ct or judge shall issue the writ directed to the person alleged to
removal contrary to this section. have custody of the person detained commanding him to have the
latter produced be fore the CT or judge designated in the writ. (Sec
6)

The writ shall be served by the sheriff or other officer deputized

by the CT (Sec 7)

The officer to whom the writ is directed shall convey the

person detained before the CT and shall make a return stating
whether or not he has the person required to be produced in his
custody, if he has, the cause of the detention and why said person
cannot be produced in CT, if he failed to produce him. (Sec 8 & 10)

The CT shall forthwith hear the case and examine the return
(Sec 12 & 13) and make such disposition as is proper.
OROSA NOTES
If he is held by judicial order the return shall be
considered only as a plea of the facts set forth therein and the
party claiming the custody must prove such facts (Sec 3)
If he is RESTRAINED BY PRIVATE PERSON the return shall be
considered only as a plea of the facts set forth therein and the
party claiming the custody must prove such facts (Sec 14)

IF he is lawfully held for an UNBAILABLE OFFENSE he shall not

be considered discharged (Sec 14)

If the offense if BAILABLE he shall be admitted to bail

forthwith (Sec 14)

If he is unlawfully restrained he shall be

discharged.
OROSA NOTES

RULE 103 Is the requirement of a VERIFIED petition JURISDICTIONAL ?

CHANGE OF NAME
SEC 1. Venue.
A person desiring to CHANGE HIS NAME
shall present the petition to the CFI of the province in which he RESIDES,
or,
in the City of Manila, to the Juvenile and Domestic Relations CT.
What is a name ?
A name, when applied to a particular person, is a word or words
used to indemnify that person.
What is the nature of a petition for change of name of a person?
It is a privilege and not a matter of right because the state has
interest in the names borne by individuals and entities for the
purpose of identification.
It is the duty of the CTs to consider the consequences of the change
of name and to deny the same unless weighty reasons are shown.
What is the purpose of proceedings for the change of name ?
Prevention of fraud. Such rules are valid exercise of the police power
of the state.
May an alien seek to change his name in the Philippines ?
Yes. Philippine citizen of the applicant is not a prerequisite for a
petition for change of name and so an alien may petition for change
of name.
However, as the status of an alien is controlled by the laws of his
domicile, an alien may petition the CTs for change in name only if he
is DOMICILED in the Philippines.
SEC 2. Contents of petition.
A petition for change of name shall be
SIGNED AND VERIFIED
by the person desiring his name changed, or
some other person on his behalf, and
shall set forth:
a. That the petitioner has been a BONA FIDE RESIDENT of the province
where the petition is filed
for AT LEAST 3 YEARS PRIOR to the date of such filing;
b. The cause for which the change of the petitioner's name is sought;
c. The NAME ASKED FOR.
NO. The requirement regarding verification of a pleading, the non-
compliance of which does not necessarily render the pleading fatally
defective.
What is the result if the petition fails to include the name sought ?
Substantial jurisdictional defect. Proceedings for change of name is
a proceeding in rem. Jurisdiction is acquired after due publication of
the order and the data mentioned.
As such, the NON-INCLUSION OF ALL THE NAMES OR ALIASES of the
applicant in the title of the petition renders the trial CT w/o
jurisdiction to hear and determine the petition.
Note that : TITLE OF PETITION should include :
1. applicants names
2. his aliases or other names
3. name sought to be adopted (Republic vs Tanada)
May another person file a petition for change of name in BEHALF OF
ANOTHER ?
No. Se 2 requires that the petition filed by the person desiring his
name changed. As such another person may NOT FILE the petition in
behalf of another, though a valid petition may be SIGNED AND VERIFIED
by another person. (Republic vs Marcos)
What is a persons OFFICIAL NAME ?
It is that which appears in the records of the CITY REGISTRAR.
A name given to a person in the church records as a consequence of
baptism is Unofficial and cannot be recognized as his real name. (Ng
yao Siong vs Republic)
SEC 3. Order for hearing.
If the petition filed is SUFFICIENT IN FORM AND SUBSTANCE, the CT, by an
ORDER reciting the purpose of the petition,
1. shall fix a date and place for the hearing thereof, and
2. shall direct that a copy of the order be published before the hearing
at least once a week for 3 successive weeks in some newspaper of
general circulation published in the province, as the CT shall deem
best.
The date set for the hearing SHALL NOT BE WITHIN 30 days prior to an
election nor within 4 months after the last publication of the notice.
OROSA NOTES
Is the requirement of PUBLICATION ESSENTIAL to a petition for change
of name ?
Yes. Because the proceeding is in rem. Strict in compliance with the
requirement of publication is essential, for it is by such means that
the CT acquires jurisdiction.
What is the effect of a defect in the petition as to the correct spelling
of the name of the petitioner ?
A defect in the petition and the order as to the spelling of the name
of petitioner is substantial because it does not correctly identify the
party to said proceedings. The difference of open letter in a name
may mean the distinction of identity one person with that of
another.
SEC 4. Hearing.
Any INTERESTED PERSON may appear at the hearing and oppose the
petition.
The SOLICITOR GENERAL or the proper provincial or city FISCAL shall APPEAR
on behalf of the Government of the Republic.
Who are the officers who represent the Government of the Republic?
The Government may be represented by :
1. Solicitor General
2. proper provincial fiscal
3. proper city fiscal
Why is it that the State, through the Office of the SolGen takes an
active part in petitions for change of name ?
In its capacity as parens patriae, the State must take care of the
interests of its citizens who are unable to fend for themselves. It
looks into the identity of the petitioners, the nature of the
corrections that are desired, the reason behind the petition and
other matters which may elicit purposes inimical to the State or the
welfare of specific citizens.
SEC 5. Judgment.
Upon SATISFACTORY PROOF in open CT on the date fixed in the order
1. that such order has been PUBLISHED AS DIRECTED and
2. that the ALLEGATIONS OF THE PETITION ARE TRUE,
the CT shall, if PROPER AND REASONABLE CAUSE appears for changing the
name of the petitioner,
adjudge that such NAME BE CHANGED IN ACCORDANCE WITH THE PRAYER of the
petition.
When may a JUDGMENT by rendered by the CT?
Upon satisfactory proof of
1. the PUBLICATION of the order of hearing
2. the ALLEGATIONS of the petition are TRUE
3. PROPER AND REASONABLE CAUSE APPEARS for the change of name
What is the CTs DISCRETION in the granting of petitions for change of
name ?
The CT can only correct those errors involving obvious clerical
errors. Changes which may affect paternity of filiation are not within
the purview of change of name (Labayo- Rowe vs Republic)
Give examples of a REASONABLE cause for the change of name.
The CTs have held that the following are reasonable causes for
change of name :
1. when the change is necessary to avoid confusion
2. a sincere desire to adopt a Filipino name to erase signs of
former nationality which would duly hamper social and business
life
3. inadvertent mistake by the midwife of a Chinese name
4. when the confusion and embarrassment would result as when
Christian sounding name is given to a Muslim
5. a ridiculous name
6. a name tainted with dishonor
7. a name extremely difficult to write of pronounce
8. change of civil status
9. change results as a legal consequence, as in legitimation
Give examples of reasons NOT REASONABLE for the change of name.
The CTs have held that the following are reasonable causes for
change of name :
1. legal separation
2. the fact that other persons bear the same name
3. if the change of name would give an impression of family
relationship where none exists
4. failure to show a proper and compelling reason to justify the
change of name
SEC 6. Service of judgment.
JUDGMENTS OR ORDERS rendered in connection with this rule shall be
FURNISHED THE CIVIL REGISTRAR of the municipality or city
where the CT issuing the same is situated,
who shall forthwith ENTER THE SAME IN THE CIVIL REGISTER.
What does Sec 6 require?
OROSA NOTES
That JUDGMENTS OR ORDERS rendered in proceedings for a change in
name be FURNISHED TO THE CIVIL REGISTRAR of the municipality or city
where the CT issuing the same is situated. Thereafter it becomes
the duty of the registrar to ENTER SUCH judgments or orders into the
CIVIL REGISTER.
Give a summary of the procedure for change of name.
The procedure is as follows:
1. The petition w/c must be verified shall be filed in the RTC where the
petitioner resides, or in the City of Mla, in the Juvenile and Domestic
Relations CT.
2. The petition shall set forth :
a. That the petitioner has been a BONA FIDE RESIDENT of the
province where the petition is filed
for AT LEAST 3 YEARS PRIOR to the date of such filing;
b. The cause for which the change of the petitioner's name is
sought;
c. The NAME ASKED FOR.
3. The CT shall set the petition for hearing
4. The order of hearing shall be published before trial at least ONCE A
WEEK for 3 SUCCESSIVE WEEKS in some newspaper of general
circulation published in the province.
5. The date of hearing shall not be w/in 30 days prior to an election or
w/in 4 months after the last publication of notice.
6. Any interested person may appear at the hearing. The SolGen, prov.
Or city fiscal shall appear for the Republic.
7. If the petition is meritorious, it shall be granted by the CT.
8. A copy of the judgment or order shall be furnished the civil registrar
of the city or municipality where the CT is situated.
9. Civil registrar shall enter the orders in the civil register.
What happens when the husband was able to change his name in a
judicial proceeding but failed to include his wife and children?
Then a separate civil action must be brought.
What is the effect of the passage of RA 9048 and its implementing
rules on the above provisions?
Tabingan believes that the ROC are still applicable for the change of
family name and middle name. RA 9048 deals only with first names
and nicknames.
Under RA 9048, who may file the petition and where must it be filed
? a. Notice or certification of posting
Any person having DIRECT AND PERSONAL INTEREST in he xx change of
first name or nickname in the civil register may file, in person, a
verified petition with the LOCAL REGISTRY OFFICE OF THE CITY OR
MUNICIPALITY where the record sought to be connected or changed is
kept.
Who are persons considered to have direct and personal interest ?
When he is the owner of the record or the owners spouse, children,
parents, brothers, sisters, grandparents, guardian or any other
person duly authorized by law or by the owner of the document
sought to be corrected. Provided, however, that when a person is a
minor or physically or mentally incapacitated, the petition may be
filed on his behalf by his spouse, or any of his children, parents,
brothers, sisters, grandparents, guardians or persons duly
authorized by law.
TABINGAN NOTES:
law is silent on the residency requirement in the place where
petition is filed
no provision for the intervention of the State
petition should be supported with the following documents and
comply with following requirements
What is caused to be published is the entire petition or the affidavit
submitted by the interested person. It shall once a week for 2
consecutive weeks only. And it may be posted in a foreign country
when the petition is filed in any of the Philippine consulates and in
the place where the records sought to be corrected are kept.
What must be the form and content of the petition ?
The petition shall be in the prescribed form of an affidavit,
subscribed and sworn to before any person authorized by law to
administer oath. The affidavit shall set forth facts necessary to
establish the merits of the petition and shall show affirmatively that
the petitioner is competent to testify to the matters stated. The
petitioner shall state the particular erroneous entry or entries sought
to be corrected or the first name sought to be changed, and the
correction or change to be made.
The petition for the correction of CLERICAL OR TYPOGRAPHICAL ERROR
shall be SUPPORTED with the following documents:
A certified true machine copy of the certificate or of the page of the
registry book containing the entry or entries sought to be corrected
or changed;
At least 2)public or private documents showing the correct entry or
entries upon which the correction or change shall be based;
b. Other documents which the petitioner or the C/MCR, or the CG, or
D/CR may consider relevant and necessary for the approval of the
petition.
OROSA NOTES

In the case where a persons civil registry record or records were

What are documents required to support the petition?
In case of change of first name or nickname, the petition shall be
supported with the following documents and shall comply with the
following requirements:
1. Documents required under Rule 8.1
2. A clearance or a certification that the owner of the document has
no pending administrative, civil or criminal case, or no criminal
record, which shall be obtained from the following:
registered in the Philippines or in any of the Philippine Consulates, but
the persons presently resides or is domiciled in a foreign country, posting
and/or publication, as the case may be, shall be done in the place where
the petition is filed and in the place where the record sought to be
corrected is kept.
Give some basic distinctions between Rule 103 and Sec 1 RA 9048.
RULE 103 RA 9048

a. Employer, if employed To be 1st name, First name and

b. National Bureau of Investigation changed are nickname nickname only
c. Philippine National Police and/or
3. Affidavit of publication from the publisher and a surname
copy of the newspaper clipping. Initiated by Petition in a Affidavit
The C/MCR, CG or D/CR shall not accept a petition unless all regular CT although called
requirements and supporting documents are complied with by the petition
petitioner. Filed In the RTC With Mun/City
The petition and its supporting documents shall be filed in 3 copies, and where Civil Register,
upon acceptance, shall be distributed as follows: petitioner Clerk of CT of
resides SharIa CT or
1. First copy to the concerned C/MCR, CG or D/CR, Phil Gen
2. Second copy to the OCRG, and Consul, Consul
3. Third copy to the petitioner. or Vice Consul
where
petitioner
resides
Sol Gen Made party Not a party
Is there any posting and publication requirement? 3 yr residency Required of Silent
Yes. petitioner
The petition shall be posted by the concerned C/MCR, CG or D/CR in a Hearing for Required None. Only
conspicuous place provided for that purpose for 10 consecutive days presentation investigation
after he finds the petition and its supporting documents sufficient in form of Evidence
and substance. What is Judgment Order or
For a change of first name, the petition shall, in addition to the above- rendered rendered decision is
stated posting requirements, be published at least once a week for 2 rendered
consecutive weeks in a newspaper of general circulation. As proof of Appeals To Higher CT To Civil
publication, the petitioner shall attach to the petition a clipping of the Registrar
publication and an affidavit of publication from the publisher of the General (CRG)
newspaper where publication was made. Decision 15 days After 10 days from
In the case of migrant petitioner, the petition shall be posted first at the becomes receipt of receipt of CRG
office of the PRCR for 10 consecutive days before sending it to the RKCR. finality judgment or by
Upon receipt, the RKCR shall post again the petition in his office for aggrieved
another 10 consecutive days. When the petition is for a change of first petitioner on
name, the migrant petitioner shall publish the petition in a newspaper of the affirmation
general and national circulation. of denial by
OROSA NOTES
CRG
What is to be Order of Entire petition
published/ hearing or affidavit
duration 3 consecutive 2 consecutive
wks wks
even in foreign
country
Judgment is Served on the Entered
civil registrar directly into
and entered the civil
into the civil register
registry book

What are the GROUNDS for changing the 1st name or nickname?
Any of the following grounds may be sufficient for an interested
party to change his first name :
1. The first name is ridiculous, tainted with dishonor or extremely
difficult to pronounce
2. the new first name has been habitually and continuously used
by the petitioner and he has been publicly known by that first
name in the community
3. the change of name will avoid confusion
OROSA NOTES
RULE 104
VOLUNTARY DISSOLUTION OF CORPORATION
SEC 1. Where, by whom and on what showing application made.
A petition for DISSOLUTION OF A CORPORATION
shall be filed in the CFI of the province where the PRINCIPAL OFFICE of a
corporation is situated.
The petition shall be SIGNED by a MAJORITY
of its board of directors or
other officers having the management of its affairs,
VERIFIED by its
PRESIDENT OR
SECRETARY or
one of its DIRECTORS, and
shall set forth all CLAIMS AND DEMANDS against it, and
that its DISSOLUTION WAS RESOLVED upon
by a majority of the members, or,
if a stock corporation, by the affirmative vote of the stockholders
holding and representing 2/3 of all shares of stock issued or
subscribed, at a meeting of its members or stockholders called for
that purpose.
SEC 2. Order thereupon for filing objections.
If the petition is sufficient in form and substance,
the CT, by an order reciting the purpose of the petition,
shall FIX A DATE on or before which objections thereto may be filed by any
person,
which date shall not be less than 30 nor more than 60 days after the
ENTRY OF THE ORDER.
Before such date a copy of the order shall be PUBLISHED
at least once a week FOR 4 SUCCESSIVE WEEKS in some newspaper of
general circulation published in the municipality or city where the
principal office of the corporation is situated, or, if there be no such
newspaper, then in some newspaper of general circulation in the
Philippines, and
a similar copy shall be POSTED for four 4 weeks in three public places in
such municipality or city.
SEC 3. Hearing, dissolution, and disposition of assets; Receiver.
Upon 5 days' notice given AFTER THE DATE ON WHICH THE RIGHT TO FILE
OBJECTIONS AS FIXED in the order expired,
the CT shall proceed to HEAR the petition and TRY ANY ISSUE MADE BY
OBJECTIONS filed; and
1. if NO SUCH OBJECTION IS SUFFICIENT, and
2. the material allegations of the petition are TRUE,
it shall render judgment
1. DISSOLVING the corporation and
2. directing such DISPOSITION OF ITS ASSETS as justice requires, and
3. may APPOINT A RECEIVER to collect such assets and pay the debts
of the corporation.
SEC 4. What shall constitute record.
The petition, orders, proof of publication and posting, objections filed,
declaration of dissolution, and any evidence taken, shall constitute the
record in the case.
How may a corporation be dissolved ?
Under Rule 104, a corporation may be dissolved voluntarily or
judicially. Rule 66b provides that a corporation may be dissolved
involuntarily or judicially through quo warranto proceedings. At
present, However, BP 68 (Corp Code) governs the dissolution of a
corp, both voluntary and involuntary.
What must the PETITION CONTAIN ?
The petition must contain
1. The signatures of a majority of its board of directors or other
officers
2. the verification of said signatures by the president, secretary or
one of the directors of the corp
3. all claims and demand against the corp
4. a statement that the dissolution is resolved either by
a. by a majority of the members, or,
b. if a stock corporation, by the affirmative vote of the
stockholders holding and representing 2/3 of all shares of
stock issued or subscribed, at a meeting of its members or
stockholders called for that purpose
OROSA NOTES
The relevant provisions of the Corp Code are : filed; and if no such objection is sufficient, and the material allegations of
the petition are true, it shall render judgment dissolving the corporation
SEC 118. Voluntary dissolution where no creditors are affected. and directing such disposition of its assets as justice requires, and may
If dissolution of a corporation does not prejudice the rights of any appoint a receiver to collect such assets and pay the debts of the
creditor having a claim against it, the dissolution may be effected by corporation. (Rule 104, RCa)
majority vote of the board of directors or trustees, and by a resolution
duly adopted by the affirmative vote of the stockholders owning at least
2/3 of the outstanding capital stock or of at least 2/3 of the members of
a meeting to be held upon call of the directors or trustees after
publication of the notice of time, place and object of the meeting for 3
consecutive weeks in a newspaper published in the place where the
principal office of said corporation is located; and if no newspaper is
published in such place, then in a newspaper of general circulation in the
Philippines, after sending such notice to each stockholder or member
either by registered mail or by personal delivery at least 30 days prior to
said meeting. A copy of the resolution authorizing the dissolution shall be
certified by a majority of the board of directors or trustees and
countersigned by the secretary of the corporation. The Securities and
Exchange Commission shall thereupon issue the certificate of dissolution.

SEC 119. Voluntary dissolution where creditors are affected.

Where the dissolution of a corporation may prejudice the rights of any
creditor, the petition for dissolution shall be filed with the Securities and
Exchange Commission. The petition shall be signed by a majority of its
board of directors or trustees or other officers having the management of
its affairs, verified by its president or secretary or one of its directors or
trustees, and shall set forth all claims and demands against it, and that
its dissolution was resolved upon by the affirmative vote of the
stockholders representing at least 2/3 of the outstanding capital stock or
by at least 2/3 of the members at a meeting of its stockholders or
members called for that purpose.

If the petition is sufficient in form and substance, the Commission shall,

by an order reciting the purpose of the petition, fix a date on or before
which objections thereto may be filed by any person, which date shall
not be less than 30 days nor more than 60 days after the entry of the
order. Before such date, a copy of the order shall be published at least
once a week for 3 consecutive weeks in a newspaper of general
circulation published in the municipality or city where the principal office
of the corporation is situated, or if there be no such newspaper, then in a
newspaper of general circulation in the Philippines, and a similar copy
shall be posted for 3 consecutive weeks in 3 public places in such
municipality or city.

Upon 5 day's notice, given after the date on which the right to file
objections as fixed in the order has expired, the Commission shall
proceed to hear the petition and try any issue made by the objections
OROSA NOTES
RULE 105
JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN
SEC 1. Venue.
Where JUDICIAL APPROVAL of a VOLUNTARY RECOGNITION of a MINOR NATURAL
CHILD is required,
such child or his parents shall obtain the same by filing a petition to that
effect with the CFI of the province in which the child resides.
In the City of Manila, the petition shall be filed in the Juvenile and
Domestic Relations CT.
SEC 2. Contents of petition.
The petition for judicial approval of a voluntary recognition of a minor
natural child shall contain the following allegations:
a. The JURISDICTIONAL FACTS;
b. The NAMES AND RESIDENCES of the
- parents who acknowledged the child, or
- of EITHER OF THEM, and
- their COMPULSORY HEIRS, and
- the person or persons WITH WHOM THE CHILD LIVES;
c. The FACT THAT THE RECOGNITION made by the parent or parents
- took place in a statement before a CT of record or
- in an authentic writing,
COPY of the statement or writing being ATTACHED to the petition.
SEC 3. Order for hearing.
Upon the filing of the petition, the CT, by an order reciting the purpose of
the same,
1. shall fix the date and place for the hearing thereof, which date shall
not be more than 6 months AFTER THE ENTRY OF THE ORDER, and
2. shall, moreover, cause a copy of the order
- to be SERVED PERSONALLY OR BY MAIL upon the
INTERESTED PARTIES, and
- published once a week for 3 consecutive weeks in
a newspaper or newspapers of general
circulation in the province.
SEC 4. Opposition.
Any INTERESTED PARTY must, within 15 days
FROM SERVICE, or from the LAST DATE OF PUBLICATION,
of the order referred to in the next preceding section,
FILE HIS OPPOSITION to the petition,
STATING THE GROUNDS or reasons therefor.
SEC 5. Judgment.
If, from the evidence presented during the hearing,
the CT is satisfied that
1. the recognition of the minor natural child was WILLINGLY AND
VOLUNTARILY MADE by the parent or parents concerned, and
2. that the recognition is for the BEST INTEREST OF THE CHILD,
it shall render judgment granting judicial approval of such recognition.
SEC 6. Service of judgment upon civil registrar.
A copy of the judgment rendered in accordance with the preceding
section shall BE SERVED UPON THE CIVIL REGISTRAR
whose duty it shall be to enter the same in the register.
What is the venue for the judicial approval recognition of minor
natural children?
RTC of the province or city in which the CHILD RESIDES.
What are different ways of voluntarily recognizing a natural child?
Will, authentic writing, record of birth, statement before a CT of
record
When is judicial approval of voluntary recognition REQUIRED?
If a minor child is to be recognized, judicial approval is required if
the voluntary recognition is by means of
1. authentic writing
2. statement before a CT of record
May COMPULSORY RECOGNITION be brought under Rule 105 of the
ROC ?
An action for compulsory recognition should not be brought under
Rule 105. The proper remedy is an ORDINARY CIVIL ACTION.
Note : Voluntary acknowledgement by the father of his child is
different from an action by the child against the father to compel the
latter to acknowledge the child as a natural child.
What is the applicability of Rule 105 at present?
Rendered nugatory by the FC since the classification and the rights
of illegitimate children have been simplified and rationalized. !!!
OROSA NOTES
RULE 106
CONSTITUTION OF FAMILY HOME
SEC 1. Who may constitute
The HEAD OF A FAMILY
owning a house and the land on which it is situated may constitute the
same into a family home
by filing a verified petition to that effect
with the CFI of the province or the city where the property is located.
In the City of Manila, the petition shall be filed in the juvenile and
domestic relations CT.
When there is danger that a person OBLIGED TO GIVE SUPPORT may LOSE HIS
OR HER FORTUNE
because of grave mismanagement or on account of riotous living,
HIS OR HER SPOUSE, if any, AND
a MAJORITY OF THOSE ENTITLED TO BE SUPPORTED by him or by her
may petition the CFI for the creation if the family home.
How is a family home constituted?
Under art. 153 FC, the Family home is deemed constituted on a
house and lot from the time it is occupied as a family residence.
From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home continues to
be such and is exempt from execution forced sale or attachment
except hereinafter provided ad to the extent of the value allowed by
law. Under the above law, therefore, a family home is deemed
constituted on a house and lot from the time it is occupied as a
family residence. There is no need to reconstitute the same judicially
or extrajudicially as required in the Civil Code.
Note: Rule 105 has been rendered nugatory by Art. 153 of E.O. 209
(Family Code).
Family Home, defined.
Art. 152, FC. The family home, constituted jointly by the husband
and the wife or by an unmarried head of the family, is the dwelling
house where they and their family reside, and the land on which it is
situated.
Who may constitute a family home?
The following may constitute a family home:
1. Husband and wife jointly; or
2. An unmarried head of a family which includes a widow or a
widower)
SEC 2. Contents of the petition.
The petition shall contain the following particulars:
A. DESCRIPTION of the property;
b. an ESTIMATE of its actual VALUE;
c. a statement that the petitioner is ACTUALLY RESIDING IN THE PREMISES;
d. the ENCUMBRANCE thereon;
e. the names and the addresses of
ALL CREDITORS of the petitioner or head of the family and of ALL
MORTGAGES and
other PERSONS WHO HAVE INTEREST in the property;
f. the names of all the BENEFICIARIES of the family home.
SEC 3. Notice and Publication.
The CT shall NOTIFY the
creditors,
mortgages and
all other persons who have an interest in the estate,
of the filing of the petition,
causing copies thereof to be SERVED upon them, and
PUBLISHED once a week for 3 consecutive weeks in a newspaper of general
circulation.
The petition shall moreover, be caused to be POSTED
1. in a CONSPICUOUS PLACE IN THE PARCEL OF LAND MENTIONED therein, and
2. also in a CONSPICUOUS PLACE of the MUNICIPAL BUILDING of the
municipality or city in which the land is situated,
for at least 14 days prior to the day of the hearing.
SEC 4. Objection and date of hearing.
In the notice and publication required in the preceding section,
the CT shall require the interested parties to FILE THEIR OBJECTION to the
petition
within a period of not less than thirty 30 days
from RECEIPT of notice or
from the DATE OF LAST PUBLICATION, and
shall fix the date and time of the hearing of the petition.
SEC 5. Order.
After hearing, if the CT finds
1. that the ACTUAL VALUE of the proposed family home does not exceed
P20,000.00 or P30,000.00 in chartered cities, and
2. that NO THIRD PERSON IS PREJUDICED thereby, or
3. that creditors have been given SUFFICIENT SECURITY for their credits,
the petition shall be APPROVED.
OROSA NOTES

SEC 6. Registration of order.

A certified copy of the order of the CT approving the establishment of the
family home shall be furnished the REGISTER OF DEEDS who shall record the
same in the registry of property.
OROSA NOTES
RULE 107
ABSENTEES
SEC 1. Appointment of representative.
1. When a person DISAPPEARS FROM HIS DOMICILE,
2. his WHEREABOUTS BEING UNKNOWN and
3. WITHOUT HAVING LEFT AN AGENT to administer his property, or
the power conferred upon the agent has expired,
any INTERESTED PARTY,
RELATIVE or
FRIEND,
may petition the CFI
of the place where the absentee RESIDED BEFORE HIS
DISAPPEARANCE,
for the appointment of a person to REPRESENT HIM PROVISIONALLY in all that
may be necessary
in the City of Manila, the petition shall be filed in the juvenile and
domestic relations CT.
When is a petition under this section proper?
A petition under this rule is proper only where the absentee HAS
PROPERTIES TO BE TAKEN CARE OF OR ADMINISTERED by a representative to
be appointed by the CT, otherwise such petition should be
dismissed.
Distinguish between absence without administrator and absence
with administrator.
For the first, only two years time would be sufficient to elapse
before a declaration of absence can be made, in the second five
years. The reason for the longer period of time is the greater
probability that the estate or property is being well taken cared of, if
a manager or administrator had been left in charge of the property.
The action to declare a person absent is vastly different from one
where his presumptive death is asked for, which declaration as we
have already seen cannot be granted by the CT except if there are
property rights to be resolved and adjudicated.
The relevant Civil Code provisions are as follows:
Art. 381. When a person disappears from his domicile his whereabouts
being unknown, and without leaving an agent to administer his property,
the judge, at the instance of an interested party, a relative, or a friend,
may appoint a person to represent him in all that may be necessary.
The same rule shall be observed when under similar circumstances the
power conferred by the absence has expired.
Art. 382. The appointment referred to in the proceeding article having
been made, the judge shall take the necessary measures to safeguard
the rights and interests of the absentee shall specify the powers,
obligations and remuneration of his representatives, regulating them
according to the circumstances by the rules concerning guardians.
Art. 383. In the appointment of a representative, the spouse present
shall be preferred when there is no legal separation.
If the absence left no spouse, or if the spouse present is a minor, any
competent person may be appointed by the CT.
Art. 384. Two years, having elapsed without any news about the
absentee or since the receipt of the last news, and five years in case the
absentee has left a person in charge of the administration of his
property, his absence may be declared.
Art. 385. The following may ask for the declaration of absence:
1. The spouse present
2. The heirs instituted in a will who may present an authentic copy of
the same
3. The relatives who may succeed by the law of intestacy
4. Those who may have over the property of the absentee some right
subordinated to the condition of his death
Art. 386. THE JUDICIAL DECLARATION of absence SHALL NOT TAKE EFFECT UNTIL
SIX MONTHS AFTER ITS PUBLICATION in a newspaper of general circulation.
SEC 2. Declaration of absence; who may petition.
After the lapse of 2 years from his disappearance and without any news
about the absentee or since the receipt of the last news, or
of 5 years in any case the absentee has left a person in charge of the
administration of his property, the declaration of his absence and
appointment of a trustee or administrator may be applied for by any of
the following:
a. the spouse present;
b. the heirs instituted in a will, who may present an authentic copy of
the same;
c. the relatives who would succeed by the law of intestacy; and
d. those who have over the property of the absentee some right
subordinated to the condition of his death.
OROSA NOTES
Can an interested person seek A JUDICIAL DECLARATION OF PRESUMPTIVE
DEATH?
No. Such action cannot be entertained. A declaration to that effect
would still be prima facie presumption and cannot reach the stage of
finality (Lukban v. Republic, 98 Phil. 574 (1956).
Can a disqualified heir petition for a declaration of absence?
Yes, what is material is whether said person is one of those allowed
by the law to seek the declaration of absence and whether said
person is competent to be appointed as administrator of the estate.
(Tol-Noquere v. Villamor, 211 SCRA 616 (1992))
SEC 3. Contents of petition.
The petition for the appointment of a representative, of for the
declaration of absence and the appointment of a trustee or an
administrator, must show the following:
a. the jurisdictional facts;
b. the names, ages, and residences of the heirs instituted in the will, a
copy of which shall be presented and of the relatives who would
have succeed by the law of intestacy;
c. the names and residences of creditors and others who may have
any adverse interest over the property of the absentee;
d. the probable value, location and character of the property belonging
to the absentee.
SEC 4. TIME OF HEARING; NOTICE AND PUBLICATION THEREOF.
When a petition for the appointment of a representative, or for the
declaration of absence and the appointment of a trustee or
administrator, is filed,
the CT shall fix a date and place for the hearing thereof where all
concerned may appear to contest the petition.
Copies of the notice of the time and place fixed for the hearing shall be
SERVED upon the
known heirs,
legatees,
devisees,
creditors and
other interested persons,
at LEAST 10 DAYS BEFORE the day of the hearing, and
shall be PUBLISHED once a week for 3 consecutive weeks prior to the time
designated for the hearing, in a newspaper of general circulation in the
province or city where the absentee resides, as the CT SHALL DEEM BESt.
SEC 5. Opposition.
ANYONE APPEARING TO CONTEST the petition
shall STATE IN WRITING HIS GROUNDS therefore and
SERVE a copy thereof on the petitioner and other interested parties on
BEFORE the date designated for the HEARING.
SEC 6. Proof of Hearing; Order.
At the hearing, compliance with the provisions of Section 4 of this rule
must first be shown.
Upon satisfactory proof of the allegations in the petition,
the CT shall issue an order granting the same and appointing the
representative, trustee or administrator for the absentee.
The judge
1. shall take the NECESSARY MEASURES TO SAFEGUARD THE RIGHTS AND
INTERESTS of the absentee and
2. shall specify the powers, obligations and remuneration of his
representative, trustee or administrator, regulating them by the
rules concerning guardians.
In case of DECLARATION OF ABSENCE,
the same SHALL NOT TAKE EFFECT UNTIL 6 MONTHS AFTER ITS PUBLICATION
1. in a newspaper of general circulation designated by the CT and
2. in the Official Gazette.
When will a judgment declaring a person legally absent take effect?
The rule provides that the judgment shall not take effect until 6
months after its publication in 1) a newspaper of general circulation
designated by the CT and 2) the Official Gazette.
This period is different from the 6 month period mentioned in Art.
386, of the Civil Code since said provision counts the period only
from publication in a newspaper of general circulation without
including publication in the in the Official Gazette.
Why does the judicial declaration of absence only take effect six
months after publication?
The period of 6 months is given to enable those who may have
heard of the absentee in the meantime to give their information to
the parties or persons concerned and if said absentee should
reappear within such period then the judicial declaration of his
absence will not have any effect at all.
OROSA NOTES
SEC 7. Who may be appointed.
In the appointment of a representative,
the SPOUSE PRESENT shall be PREFERRED
when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor or
otherwise incompetent, any competent person may be appointed by
the CT.

In case of declaration of absence, the trustee or administrator of the

absentee's property shall be appointed in accordance with the preceding
paragraph.

SEC 8. Termination of administration.

The trusteeship or administration of the property of the absentee shall
CEASE
UPON ORDER of the CT in any of the following cases:
a. When the absentee APPEARS
personally or by means of an agent;
b. When the DEATH OF THE ABSENTEE IS PROVED and
his testate or intestate HEIRS APPEAR;
c. When a THIRD PERSON APPEARS,
showing by a proper document that he has ACQUIRED the absentee's
property by purchase or other title.
In these cases the trustee or administrator shall cease in the
performance of his office, and the property shall be placed at the
disposal of those who may have a right thereto.
OROSA NOTES
RULE 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SEC 1. Who may file petition.
ANY PERSON INTERESTED in
any act, event, order or decree
concerning the civil status of persons
which has been recorded in the civil register,
may file a verified petition for the cancellation or correction of any
entry relating thereto, with the CFI of the province where the
corresponding civil registry is located.
WHO MAY FILE PETITION for cancellation or correction of entry in the
civil registry?
Any person interested in an act, event, order, or decree concerning
the Civil Status of persons, which has been recorded in the civil
register, may file a verified petition for the cancellation or correction
of any entry thereto.
WHAT ENTRIES may be cancelled or corrected under this Rule?
Rule 108 for cancellation or correction of entries in the should be
read in conjunction with Art. 412 of the Civil Code which provides
that no entry in a civil register shall be changed or corrected,
without a judicial order. The law merely CONTEMPLATES CORRECTIONS
OF MISTAKES THAT ARE CLERICAL IN NATURE. Generally, the summary
procedure for the correction of entries in the civil register, as
contemplated in Rule 108 and Article 412 of the Civil Code is
confined to innocuous or clerical error if one desires to change his
surname, his remedy is to petition for change of name under Rule
103 of the RoC.
May a petition for correction of entries be granted if, through
mistake or inadvertence, the parents nationalities are entered as
Chinese, instead of Filipino?
It is the settled rule that the jurisdiction of the CT to order the
correction of alteration of entries in the civil registry, allowed under
Art. 412 of the Civil Code is limited to innocuous or clerical
mistakes. To alter the entries by changing the nationality would be
to make it appear in that public record that a person is a citizen of
the Philippines. It is not difficult to see that the changes asked for
are neither harmless nor innocuous. Evidence tending to establish
their citizenship would be material in a summary proceeding for
judicial correction of the civil registry, citizenship not being a proper
subject or inquiry therein (Dy Oliva v. Republic, 20 SCRA 1070
(1967)).
May a petition for correction of entries be granted if the changes
sought are the civil status of the parents, the status of the petitioner
from legitimate to illegitimate and the names of the petitioner and
her father?
Changes and corrections authorized under the summary procedure
refers only to the corrections of innocuous or clerical errors, such as
misspelling or errors that are visible to the eyes or obvious to the
understanding, and that changes in the citizenship of a person or in
his status from legitimate or from married to not married are
substantial as well as controversial actual, conflict of rights the final
determination of which depends upon the resolution of the issues of
nationality, paternity, filiation or legitimacy of the marital status for
which existing substantial and procedural laws amply provide.
(Republic v. Amores 29 SCRA 361 (1973)).
May a petition for he change of name under Rule 103 be filed with a
petition for the correction or cancellation of entries in the Civil
Registry under Rule 109?
The procedure under Rule 103 and 108 are separate and distinct.
They may not substitute one for the other for the sole purpose of
expediency. To hold otherwise would render nugatory the provisions
of the Rules of CT allowing the change of ones name or the
correction of entries in the civil registry only upon meritorious
grounds. (Republic v. Belmonte, 159 SCRA 173 (1988)).
When may a petition for correction of entries amounting to
SUBSTANTIAL, NOT CLERICAL ERRORS be allowed?
It is undoubtedly true that if the subject matter of a petition is not
for the correction of clerical errors of a harmless and innocuous
nature but one involving the nationality or citizenship, which is
indisputably substantial as well as controverted, affirmative relief
CANNOT BE GRANTED IN A PROCEEDING SUMMARY IN NATURE.
However, even substantial errors in a civil registry may be corrected
and the true facts established provided the parties aggrieved by the
error avail themselves of the appropriate adversary proceeding. If
procedural requirements have been followed, a petition for
correction and/or cancellation of entries in the record of birth even if
filed and conducted under Rule 108 can no longer be described as
summary. There can be no doubt that when an opposition is
actively prosecuted, the proceedings thereon become adversary
proceedings. (Republic v. Valencia, 141 SCRA 461 (1986)).
How may petitions for nationality be made?
OROSA NOTES
Change in nationality or a person as recorded in the civil registry 1. may make ORDERS EXPEDITING the proceedings, and
can only be made in an adversary proceeding (Republic v. Medina, 2. may also grant PRELIMINARY INJUNCTION
119 SCRA 270). for the preservation of the rights of the parties pending such

proceedings.
SEC 2. Entries subject to cancellation or correction.
Upon GOOD AND VALID GROUNDS
the following entries in the civil register may be cancelled or
SEC 7. Order.
corrected:
After hearing, the CT may either
a. births;
1. dismiss the petition or
b. marriages;
2. issue an order granting the cancellation or correction prayed for.
c. deaths;
IN EITHER CASE, a certified copy of the judgment shall be served upon the
d. legal separations;
CIVIL REGISTRAR concerned who shall annotate the same in his record.
e. judgments of annulments of marriage;
f. judgments declaring marriages void from the beginning;
CHANGE OF NAME UNDER R.A. 9048
g. legitimations;
h. adoptions;
The change of name contemplated under R.A. 9048 is limited by its
i. acknowledgments of natural children;
express provisions to occasions where:
j. naturalization
a. first names or nicknames sought to be changed are RIDICULOUS or
k. election, loss or recovery of citizenship
TAINTED WITH DISHONOR or EXTREMELY DIFFICULT TO WRITE OR PRONOUNCE;
l. civil interdiction;
b. the new first name or nickname sought to be adopted has been
m. judicial determination of filiation;
HABITUALLY AND CONTINUOUSLY USED by the petitioner, and he has been
n. voluntary emancipation of a minor; and
PUBLICLY KNOWN by that first name or nickname in the community; or
o. changes of name.
c. there is CONFUSION TO BE AVOIDED OR CREATED with the use of the
registered first name or nickname of the petitioner. 6
SEC 3. Parties.
When cancellation or correction of an entry in the civil register is sought,
The IRR states that: Republic Act No. 9048 amended Articles 376 and
1. the CIVIL REGISTRAR and
412. Section 1 of this amendatory law provides: [n]o entry in a civil
2. all persons who have or claim ANY INTEREST WHICH WOULD BE AFFECTED
register shall be changed or corrected without a judicial order, except for
thereby
clerical or typographical errors and change of first name or nickname
shall be MADE PARTIES TO THE PROCEEDING.
which can be corrected or changed by the concerned city or municipal
civil registrar or consul general in accordance with the provisions of this
SEC 4. Notice and publication.
Act and its implementing rules and regulations.
Upon the filing of the petition, the CT shall, by an order, fix the time and
Under Section 2 of R.A. 9048, a clerical or typographical error is defined
place for the hearing of the same, and cause reasonable NOTICE thereof
as:
to be given to the persons named in the petition.
mistake committed in the PERFORMANCE OF CLERICAL WORK in writing,
The CT shall also cause the order to be PUBLISHED once a week for 3
copying, transcribing or typing an entry in the civil register
consecutive weeks in a newspaper of general circulation in the province.
that is harmless and innocuous, such as misspelled name or misspelled
place of birth or the like, which is visible to the eyes or obvious to the
SEC 5. Opposition.
understanding and can be corrected or changed only by reference to
The civil registrar and any person having or claiming any interest under
other existing record or records: Provided, however, that no correction
the entry whose cancellation or correction is sought may, within 15 days
must involve the change of nationality, age, status or sex of the
from notice of the petition, or from the last date of publication of such
petitioner.
notice, file his opposition thereto.

SEC 6. Expediting proceedings.

The CT in which the proceeding is brought 6
. Republic Act 9048, 4.
OROSA NOTES
It must be noted that the change of name here is generally applied
only to a change in the nickname or first name; it does not cover
surnames.
A. Who May File the Petition
Any person of legal age, having direct and personal interest in the
correction of a clerical or typographical error in an entry and/or change
of first name or nickname may file the verified petition 7 with the
concerned civil registrar (in the city or municipality) where the record to
be corrected is kept.8 If the petitioner has migrated to another place
within the Philippines and it would not be practical for such party to
appear before the record-keeping Civil Registrar, the petition may be
filed where the migrant petitioner currently resides. Where the petitioner
is domiciled in another country, the petition may be filed with the nearest
Philippine Consulate.9
B. Examination of the Petition by the Civil Registrar
The Civil Registrar then examines the completeness of the requirements
and supporting documents and determines whether the record to be
corrected is indeed in his custody. 10 If after examination he finds that the
records are not in his custody, he shall transmit the petition to the Civil
Registrar who has custody of the records. 11 He shall receive the petition
upon payment of the required fees and record the petition in an
appropriate record book.12
7
. Rules and Regulations Governing the Implementation of R.A. 9048,
Administrative Order no. 1, series of 2001, Rule 3 [hereinafter IRR] provides:
Any person of legal age, having direct and personal interest in the correction of a
clerical or typographical error in an entry and/or change of first name or nickname
in the civil register, may file the petition. A person is considered to have direct and
personal interest when he is the owner of the record, or the owners spouse,
children, parents, brothers, sisters, grandparents, guardian, or any other person duly
authorized by law or by the owner of the document sought to be corrected:
Provided, however, that when a person is a minor or physically or mentally
incapacitated, the petition may be filed on his behalf by his spouse, or any of his
children, parents, brothers, sisters, grandparents, guardians, or persons duly
authorized by law.
8 14
. Id. Rule 4.
9 15
. Id.
10
. Id. Rule 5.
11
. Id. Rule 6.
12
. Id. Rule 5.
The Civil Registrar shall act on the petition within five working days after
the completion of the posting and/or publication requirement. If he
approves the petition, he shall render a decision in triplicate 13 and
transmit a copy of the decision to the Civil Registrar General within five
working days from the rendering of the decision. 14 Within ten working
days from receipt thereof, the Civil Registrar General may then impugn
or maintain the decision of the local civil registrar. 15
1. Finality of Judgment and Right to Appeal
If the local Civil Registrar does not grant the petition, the petitioner has
two remedies. He may appeal to the Civil Registrar General within ten
working days from receipt of the decision or file the appropriate petition
in CT.16
The petitioner may file a notice of appeal with the Civil Registrar
General within ten days and the concerned local Civil Registrar shall in
turn submit the petition and supporting document of the petitioner to the
Civil Registrar General within five working days after the receipt of the
notice of appeal. The Civil Registrar General shall render the decision on
the appeal within thirty calendar days after receipt thereof and its
decision shall be transmitted to the local civil registrar within ten working
days after the decision. Within ten days after receipt of the decision, the
local civil registrar shall inform the petitioner of the decision.
If the petitioner decided not to appeal, the dismissal made by the
Civil Registrar shall not preclude the petitioner from seeking a judicial
remedy under Rules 103 and 108 of the Rules of CT. It is submitted that
the dismissal of his petition by the Civil Registrar does not have the
effect of res judicata and can still be the subject of the proper judicial
proceeding. This notwithstanding the fact that the decision becomes final
and executory if the Civil Registrar General fails to impugn the decision
of the local civil registrar17 or the petitioner fails to seasonably appeal
within the ten-day period.18
2. Length of Time and Costs of the Procedure
A simple correction of entries in the civil registry can be done within 30
days while a change of name would require 30-60 days. Throughout the
proceedings, a petitioner can proceed on his own and the only time that
a lawyer would be necessary is when the petition is being prepared and
when it has to be verified.
The costs of filing fees are around P1,000 for typographical or clerical
errors and P3,000 for change of first name or nickname. For migrant
petitioners, an additional P500 for typographical errors and P1000 for
13
. Id. Rule 5.7.
. Id. Rule 10.5.
. Id. Rule 11.
16
. Id. Rule 13.
17
. Id. Rule 15.
18
. Id. Rule 14.
OROSA NOTES
change of name is charged. If the petition is filed with the Consular
General, the filing fees are $50 for typographical errors and $150.00 for
change of first name or nickname. These fees are subject to ratification
by the local legislative body.19
proof that certain documents bear the correct entry or entries. The notice
or certification of posting ensures that any or all persons who have
objections to the correction of entry or change of name may properly
present his objections against the petition before the Civil Registrar.

C. Requirements on Form In case of change of first name or nickname, other than the
requirements already mentioned, it is necessary that the petitioner
Under SEC 5 of R.A. 9048, present a certification that no administrative, civil or criminal case is
The petition shall be in the form of an affidavit, subscribed and sworn pending before any CT or administrative agency for which he is a
to before any person authorized by law to administer oaths. The defendant or respondent.
affidavits shall set forth facts necessary to establish the merits of the
petition and shall show affirmatively that the petitioner is competent The IRR also requires that a clearance or certificate from:
to testify to the matters stated. The petitioner shall state the a. the employer, if employed;
particular erroneous entry or entries which are sought to be b. the National Bureau of Investigation (NBI); and
corrected and/or the change sought to be made. c. the Philippine National Police (PNP)22
to show that he has no pending administrative, civil or criminal case, or
In petitions filed under R.A. 9048, it is necessary that the petition be no criminal record.
verified. Verification had been defined as an averment by the party
making the pleading that he is prepared to establish the truth of the D. Posting and Publication Requirement
facts which he has pleaded.20 In the law, it is required that the petitioner
file the verified petition with the concerned civil registrars office. For a change of first name, the law provides that the concerned civil
registrar should publish the petition at least once a week for two
To support the petition, the IRR of R.A. 9048 provides for a detailed list consecutive weeks in a newspaper of general circulation. To show
of documents. When any of these documents are missing, the civil compliance with this publication, an affidavit of publication from the
registrar is directed by law not to accept the petition or to dismiss it. publisher and a copy of the newspaper clipping is required by the IRR. 23
Thus, it was stated in the IRR that the C/MCR, CG or D/CR shall not
accept a petition unless all requirements and supporting documents are
complied with by the petitioner.21
There are four documents required under Rule 8.2 of the IRR for a
petition for the correction of clerical or typographical error, namely:
a. a certified true machine copy of the certificate of the page of the
registry book containing the entry or entries sought to be corrected
or changed;
b. at least two public or private documents showing the correct entry
or entries upon which the correction or change shall be based;
c. notice or certification of posting; and
d. other documents which the petitioner or the local civil registrar or
the consul general may consider relevant and necessary for the
approval of the petition.

These documents are necessary in order to establish jurisdictional facts,

i.e., there is an entry in the civil registry that needs to be corrected and

19
. Id. Rule 18.
20
. Sulpicio Guevara, Legal Forms 46 (1991).
21 22
. City or Municipal Civil Registrar (C/MCR), Consul General (CG) or . Id. Rule 8.2.2.
23
District or Circuit Reg istrar (D/CR) IRR, Rule 8.3. . Id. Rule 8.2.3.
OROSA NOTES
RULE 109
APPEALS IN SPECIAL PROCEEDINGS
SEC 1. Orders or judgments from which appeals may be taken.
An interested person may appeal in special proceedings from an order or
judgment rendered by a CFI or a Juvenile and Domestic Relations CT,
where such order or judgment:
a. Allows or disallows a will;
b. Determines who are the lawful heirs of a deceased person, or the
distributive share of the estate to which such person is entitled;
c. Allows or disallows, in whole or in part, any claim against the estate
of a deceased person, or any claim presented on behalf of the estate
in offset to a claim against it;
d. Settles the account of an executor, administrator, trustee or
guardian;
e. Constitutes, in proceedings relating to the settlement of the estate
of a deceased person, or the administration of a trustee or guardian,
a final determination in the lower CT of the rights of the party
appealing, except that no appeal shall be allowed from the
appointment of a special administrator; and
f. Is the final order or judgment rendered in the case, and affects the
substantial rights of the person appealing, unless it be an order
granting or denying a motion for a new trial or for reconsideration.
SEC 39 pf B.P. 129 on Appeals and the 15 day period provided therein
does not apply to special proceedings. The last paragraph of said section
provides: This section does not apply in appeals in special proceedings
and in other cases wherein multiple appeals are allowed under applicable
provisions of the Rules of CT. In other words, the period of appeal with
respect to special proceedings shall still be 30 days counted from the
notice of the order, resolution award, judgment, or decision appealed
from and a record of appeal is still also required.
How is an appeal taken in special proceedings?
Appeal may be taken by serving upon the adverse party and filing
with the trial CT within 30 days from notice of order or judgment, a
notice of appeal, an appeal bond, and a record on appeal.
What is a record on appeal?
A record on appeal is a statement in writing of the various
pleadings, orders, and judgment appearing in the regular record of
the trial CT to be brought before a reviewing tribunal.
Why is a record on appeal necessary?
A record on appeal is necessary since the original record remains
with the trial CT.
Who may appeal?
Generally, only an interested person may be allowed to appeal from
an order or judgment rendered in special proceedings by an RTC.
Is appeal the proper remedy from an order granting a license to sell
a lot in an intestate proceeding?
Yes, an order for a license to sell real estate in administration
proceedings is in the nature of a judgment upon the issues involved
and an appeal may be taken therefrom as in the case of any other
judgment. It should be observed that the petitioners have neglected
to appeal from said order granting the license to sell. Therefore, if
there was any defect or infirmity in the order of the respondent CT
as alleged by petitioner, it was properly curable by appeal, and since
the petitioners remedy by appeal had been lost due to their own
negligence, they cannot now seek redress by petition for a writ of
certiorari.
May the executor or administrator appeal a judgment disallowing
the will?
As representatives of the heirs instituted therein, an executor under
the will is an interested party and may appeal for the purpose of
maintaining the validity of the will, he provisions of which he is duty
bound to execute. A special administrator of an estate is likewise a
person interested in the allowance or disallowance of a will and so
may be permitted to appeal. (Fluemer v. Hix, 54 Phil. 610 (1930))
Suppose the will of X was denied probate, and X had 3 heirs. Must
all of them file an appeal?
No. Where the interests of all the heirs are so interwoven as to
become inseparable, the appeal perfected by one heir prevents the
appealed decision from becoming final as to the others. Likewise, a
reversal of the appealed decision is a reversal as to all of them.
What orders or judgments in special proceedings are appealable?
It is the general rule that any order or judgment or decrees of the
probate CT capable of being enforced or taking effect without further
order, may be appealed from.
Is an order or judgment allowing or disallowing a will appealable?
Yes, and the appeal must be in the same proceeding in which the
order was made.
Is an order striking out an opposition to probate a will appealable?
OROSA NOTES
An order triking out an opposition to the people of a will on the
ground hat the oppositors have no personality to intervene in the
case is final, and therefore appealable insofar as they are
concerned.
Is an order fixing a date of hearing of petition for letters of
administration appealable?
An order of a probate CT fixing a date for the hearing on an
application for the appointment of an administrator of the estate of
a deceased person, is not appealable, except where it is failure to
serve process on respondent, and therefore no jurisdiction has been
obtained over the person.
What other orders or judgments in special proceedings are
appelable?
They are
1. An order or judgment allowing or disallowing any claim against the
estate of a deceased person.
2. An order appointing or removing an administrator or executor.
3. An order removing a guardian.
4. An order appointing a co-administrator.
5. An order prohibiting a person to intervene in the proceedings.
6. An order approving or disapproving accounts of an executor,
administrator, trustee or guardian.
7. Review and reopening of the guardians account.
8. An order or judgment determining who are the lawful heirs of a
deceased person, or the distributive share of the estate to which
such person is entitled.
9. An order directing the sale of land pertaining to the estate/an order
directing the sale of a property of a ward.
10. An order directing a person to appear and submit to an examination.
Give examples of orders or judgments which are NOT appealable.
The following :
1. An order requiring the filing of a new bond by the administrator.
2. An order appointing or denying appointment of a special
administrator.
3. An order directing the administrator to take action to recover an
amount due to the estate.
4. An order for the inclusion or exclusion in the inventory of certain
properties.
5. An order revoking a former order of distribution and requiring
submission of a new project of distribution.
SEC 2. Advance distribution in special proceedings.
NOTWITHSTANDING A PENDING controversy or appeal
in PROCEEDINGS TO SETTLE THE ESTATE of a decedent
the CT may, in its discretion and upon such terms as it may deem
proper and just,
permit that SUCH PART OF THE ESTATE AS MAY NOT BE AFFECTED by the
controversy or appeal
be distributed among the heirs or legatees, upon compliance with the
conditions set forth in Rule 90 of these rules.
Requirements to be accomplished before advance distribution of the
estate can be made?
Refer to the contents set forth in Rule 90, which provides in part:
No distribution shall be allowed until the payment of the obligations
above mentioned has been made or provided for unless the
distributees, or any of them, give a bond in a sum to be fixed by the
CT, conditioned for the payment of said obligations within such tie
as the CT directs. The debts, funeral charges, expenses of
administration, the allowance of the widow and inheritance tax, if
any, chargeable to the estate in accordance with law, must be paid
before the CT can order advance distribution of the estate.
Is there an instance when distribution may be allowed although
there are still outstanding obligations?
Distribution is permitted even though there are outstanding
obligations if sufficient bond is filed or provisions made to meet
them pursuant to the last paragraph of SEC 1, Rule 90.
Should a partial distribution be exercised with caution?
A partial distribution of the decedents estate pending the final
termination of the estate proceedings should as much as possible be
discouraged by the CTs and unless in extreme cases, such form of
advances of inheritance should both be countenanced. CT should
guard with utmost zeal and jealousy the estate of the decedent to
the end that the creditors thereof be adequately protected and all
the rightful heirs assured of their shares in the inheritance.
When should partial distribution not be made?
Where the amount which may be necessary to meet further
demands on the estate cannot be determined with reasonable
certainty so as to protect the executor fully a partial distribution
should not be made. Also when proceedings are pending which
suspend the function of the representative or where his right to
distribute does not exist, partial distribution should not be decreed
or enforced. It has likewise been held that an order for partial
distribution before final settlement is unauthorized where it is not
based on the executors account filed and approved.
What is relevant in the case of McMaster v. Reissman?
OROSA NOTES
Since such proceedings are in rem Mc Master is presumed to have
knowledge of the decrees issued regarding the estates of Michael
and Murray, if she did not concur in said decree, she should have
appealed therefrom within 25 days of its issuance under SEC 113 of
the Code of Civil Procedure. If no appeal is taken from said decree,
the same becomes final and conclusive, and it may be set aside by
the CT issuing if only if within six months from the date it was
issued application therefore is made in accordance with said Section
and the CT granting an application for the reopening of said
proceedings, filed after the lapse of said periods, exceeds its
jurisdiction and the order or judgment rendered by it is null and void
and without any legal effect. (McMaser v. Reissman, 68 Phil. 142
(1939)).