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the minors are represented by two (2) years after the death of
their judicial or legal the decedent.
representatives duly authorized The fact of the extrajudicial
for the purpose, the parties settlement or administration
may, without securing letters of shall be published in a
administration, divide the newspaper of general
estate among themselves as circulation in the manner
they see fit by means of a provided in the next succeeding
public instrument filed in the section [THIS IS NOT
office of the register of deeds, CONSTRUCTIVE NOTICE FOR
and should they disagree, they HEIRS BUT TO CALL ALL
may do so in an ordinary action INTERESTED PERSONS TO
of partition. If there is only one
PARTICIPATE THEREIN G.R.
heir, he may adjudicate to
himself the entire estate by No. 156536]; but no
means of an affidavit filed in extrajudicial settlement shall
the office of the register of be binding upon any person
deeds. The parties to an who has not participated
extrajudicial settlement, therein or had no notice
whether by public instrument thereof.
or by stipulation in a pending Modes of Settlement of Estate
action for partition, or the sole
heir who adjudicates the entire .1 Extrajudicial Modes
estate to himself by means of .a Agreement of the heirs (Rule
an affidavit shall file, 74, §1)
simultaneously with and as a .b Affidavit of self-adjudication
condition precedent to the (Rule 74, §1)
filing of the public instrument,
or stipulation in the action for .2 Judicial Modes
partition, or of the affidavit in .a Partition (Rule 74 §1
the office of the register of “ordinary action of
deeds, a bond with the said partition”)
register of deeds, in an amount
equivalent to the value of the .b Stipulation in a pending
personal property involved as action (Rule 74, §1)
certified to under oath by the .c Interventions in a pending
parties concerned and action (Rule 74, §1)
conditioned upon the payment
.d Summary settlement of
of any just claim that may be
estates of small value (Rule
filed under section 4 of this
74, §2)
rule. It shall be presumed that
the decedent left no debts if no .e Probate (Petition for Letters)
creditor files a petition for )1 Testate
letters of administration within
)2 Intestate
any property that may have been death of the decedent, 2) his
alienated or the property acquired residence at the time of his
therewith; but he cannot claim
either fruits or rents. (194) death in the province where the
probate court is sitting, or if he
2) Cases is an inhabitant of a foreign
In re Kaw Singco, 74 Phil. 238 country, his having left his
(1943) Residence of deceased in estate in such province.
probate proceedings is a matter of Manzanero v. CFI of Batangas, 61
venue and not of jurisdiction over Phil. 850 (1935) The determination
the subject matter. All RTCs have of venue may be questioned only if
jurisdiction over probate cases, but the want of jurisdiction appears
not all ave the proper venue. The on record, or on appeal, NOT
SC had to resolve this issue through a special civil action of
because it can take cognizance of certiorari. Certiorari is available
the case only if the court’s only where want of jurisdiction
jurisdiction, not venue, is being appears on the record.
questioned.
Eusebio v. Eusebio, 100 Phil. 593
Garcia Fule v. Court of Appeals, 74 (1956) To establish residence
SCRA 189 (1976) Residence should sufficient to confer venue, there
be understood in its popular sense must have been an intention of the
as the personal, actual or physical decedent to live there indefinitely.
presence in a place and actual stay The provision that the court first
thereat. It is not to be understood taking cognizance of the case
as domicile or legal residence. [for excludes all other courts applies
purposes of venue] mainly to non-resident decedents
Cuenco v. Court of Appeals, 53 who have properties in several
SCRA 360 (1973) The court with provinces.
whom the petition is first filed, de Leon: Fule said residence
must also first take cognizance of means actual presence. Eusebio
the settlement of the estate in qualified this by saying actual
order to exercise jurisdiction over presence must also be
it to the exclusion of all other accompanied by an intent to stay
courts. Questions on venue are there indefinitely [SO THIS IS
resolved by the court taking first DOMICILE?]. In Cuenco, the 2nd
cognizance of the case. Such court, court had venue because the 1st
may also decline to take court deferred to it. It is best to
cognizance of the petition and hold ignore Cuenco’s application of the
the petition before it in abeyance, principle on exclusion because
and instead defer to the second Eusebio said this principle applies
court. Furthermore, probate to cases where there are courts of
proceedings take precedence over concurrent venue, i.e. when the
intestate proceedings. Lastly, the decedent is not a resident of the
Rules require that the petition Philippines and has left properties
for allowance of a will must in different provinces.
show the jurisdictional facts: 1)
Aldanese v. Salutillo, 47 Phil. 548 Gan v. Yap, 104 Phil. 509 (1958)
{1925) It is testimony, not physical Contents of a holographic will may
presence, that is required of not be proved by parole evidence.
subscribing witnesses. Depositions Rodelas v. Aranza, 119 SCRA 16
will suffice. (1982) Contents of a holographic
Vda. de Ramos v. CA, 81 SCRA 393 will may be proved by a copy.
(1978) The declaration of the In Rodelas, there was a copy of the
subscribing witness, being forced holographic will. In Gan, there was
witnesses, against the probate of a no such copy. In fact, a footnote in
will is not conclusive on the Gan acknowledged that the lost
order for removal of a special person for him, and from the
administrator and appointment of proceeds to pay and discharge
a regular administrator, another all debts, legacies, and charges
special administrator should be on the same, or such dividends
appointed. thereon as shall be decreed by
Junquera v. Borromeo, 99 Phil. 276 the court;
(1956) Failure to file an inventory (c) To render a true and just
of the estate within a reasonable account of his administration
period is a ground for removal of a to the court within one (1) year,
special administrator. and at any other time when
required by the court; [full
11. Bonds of
report of accounts]
Executors and
Administrators (d) To perform all orders of
the court by him to be
a. Rule 81 performed.
Sec. 1. Bond to be given Conditions of the administrator’s
before issuance of letters. bond / duties of an administrator
Amount. Conditions. Before an .1 to make and return to the court,
executor or administrator within 3 months, a true and
enters upon the execution of complete inventory of the estate
his trust, and letters which shall come to his
testamentary or of possession or knowledge or to
administration issue, he shall the possession of any other
give a bond, in such sum as the person for him;
court directs, conditioned as
follows: .2 to administer the estate, and
from the proceeds to pay and
(a) To make and return to discharge all debts, legacies,
the court, within three (3) and charges, or such dividends
months, a true and complete thereon as shall be decreed by
inventory of all goods, chattels, the court;
rights, credits, and estate of
the deceased which shall come .3 to render a true and just
to his possession or knowledge account of his administration to
or to the possession of any the court within 1 year, and at
other person for him; any other time when required
by the court;
(b) To administer according
to these rules, and, if an .4 to perform all orders of the
executor, according to the will court by him to be performed.
of the testator, all goods, Sec. 2. Bond of executor
chattels, rights, credits, and where directed in will. When
estate which shall at any time further bond required. If the
come to his possession or to testator in his will directs that
the possession of any other the executor serve without
proceeding, the court can resolve Estate of Hilario Ruiz v. CA, 252
the issue of ownership only SCRA 540 (1996) Support pending
provisionally. (p. 83 Moran) estate proceedings should not be
limited to minor or incapacitated
Sebial v. Sebial, 64 SCRA 385
children of the decedent, but
(1975) The 3-month period to file
should be given to all children
an inventory is not mandatory.
entitled to support (e.g. education)
After the filing of a petition for
even those of majority age.
the issuance of letters of
However, substantive law (Art. 188
administration and the
NCC, now Art. 133 FC) limits such
publication of the notice of
support to only the surviving
hearing, the probate court
spouse and children. It does not
acquires jurisdiction over a
extend to grandchildren.
decedent's estate and retains
that jurisdiction until the cf Art. 133 FC
proceeding is closed. The fact Art. 133. From the common mass
that an inventory was filed after of property support shall be given
the 3-month period would not to the surviving spouse and to the
deprive the probate court of children during the liquidation of
the inventoried property and until
jurisdiction to approve it. However, what belongs to them is delivered;
an administrator's unexplained but from this shall be deducted
delay in filing the inventory may be that amount received for support
a ground for his removal which exceeds the fruits or rents
pertaining to them. (188a)
Pio Barretto Realty Development,
Inc. v. CA, 131 SCRA 606 (1984)
Questions of title or ownership, 14. General Powers
which result to inclusion in or and Duties of
exclusion from the inventory can
only be settled conclusively in a Executors and
separate action. Administrators
Santero v. CFI of Cavite, 153 SCRA
[order of court req
728 (1987) While the rules of court for selling,
limit allowances to the widow and continuance of
minor or incapacitated children, business, mortgage,
the Civil Code (now Family Code) Loan =
gives the surviving spouse and his unenforceable or
children support without
distinction. Hence, the fact that
void contract]
the children are of majority age, a. Rule 84
gainfully employed, or already
married is irrelevant in Sec. 1. Executor or
determining entitlement to support administrator to have access to
while the estate proceedings are partnership books and
being settled. property. How right enforced.
The executor or administrator
of the estate of a deceased
is not true in cases of agency. The for the benefit of the estate. In
agent is only answerable to his case he does, he alone will be
principal. The protection which the responsible with his own property
law gives the principal, in limiting for the debts and obligations he
the powers and rights of an agent, has contracted. The fact that the
stems from the fact that control by money was used for the benefit
the principal can only be through and improvement of the estate
agreements, whereas the acts of a cannot affect a creditor's rights,
judicial administrator are subject nor is he obliged to direct his
to specific provisions of law and action against the estate, but it lies
orders of the appointing court. directly against the administrator
or executor who is alone
Jaroda v. Cusi, 28 SCRA 1008
personally responsible for the
(1969) An administrator can not
payment of the debt he contracted.
appoint himself as attorney-in-fact
to sell property of the estate. An 15. Accountability
order of the probate court and Compensation
approving such appointment is
of Executors and
void.
Administrators
Wilson v. Rear, 55 Phil. 44 (1930)
An administrator, without an order a. Rule 85
of the court, has no authority to Sec. 1. Executor or
continue the business in which the administrator chargeable with
deceased was engaged at the time all estate and income. Except
of his death. If he does so with the as otherwise expressly provided
funds of the estate, he is in the following sections, every
chargeable with all the losses executor or administrator is
incurred thereby without allowing chargeable in his account with
him to receive the benefit of any the whole of the estate of the
profits that he may make. deceased which has come into
Executors and administrators who his possession, at the value of
do not actively labor to close the the appraisement contained in
estate within 12 months can be the inventory; with all the
deprived of compensation. Harsher interest, profit, and income of
measures may be his removal or such estate; and with the
his liability for damage. The law proceeds of so much of the
does not impose upon the executor estate as is sold by him, at the
or administrator a high degree of price at which it was sold.
care, but it does impose upon him
ordinary and usual care, for the Sec. 2. Not to profit by
want of which he is personally increase or lose by decrease in
liable. value. No executor or
administrator shall profit by
Fabie v. Yulo, 24 Phil. 240 (1913)
the increase, or suffer loss by
The executor or administrator can
the decrease or destruction,
not borrow money without
without his fault, of any part of
authority of the court, even if it is
the estate. He must account for he has in his hands, and the
the excess when he sells any value of the estate is thereby
part of the estate for more than lessened or unnecessary cost or
appraisement, and if any is sold interest accrues, or the persons
for less than the appraisement, interested suffer loss, the same
he is not responsible for the shall be deemed waste and the
loss, if the sale has been justly damage sustained may be
made. If he settles any claim charged and allowed against
against the estate for less than him in his account, and he shall
its nominal value, he is entitled be liable therefor on his bond.
to charge in his account only Sec. 6. When allowed money
the amount he actually paid on paid as costs. The amount paid
the settlement. by an executor or administrator
Sec. 3. When not for costs awarded against him
accountable for debts due shall be allowed in his
estate. No executor or administration account, unless
administrator shall be it appears that the action or
accountable for debts due the proceeding in which the costs
deceased which remain are taxed was prosecuted or
uncollected without his fault. resisted without just cause, and
not in good faith.
Sec. 4. Accountable for
income from realty used by Sec. 7. What expenses and
him. If the executor or fees allowed executor or
administrator uses or occupies administrator. Not to charge
any part of the real estate for services as attorney.
himself, he shall account for it Compensation provided by will
as may be agreed upon between controls unless renounced. An
him and the parties interested, executor or administrator shall
or adjusted by the court with be allowed the necessary
their assent; and if the parties expenses in the care,
do not agree upon the sum to management, and settlement of
be allowed, the same may be the estate, and for his services,
ascertained by the court, whose four pesos per day for the time
determination in this respect actually and necessarily
shall be final. employed, or a commission
upon the value of so much of
Sec. 5. Accountable if he
the estate as comes into his
neglects or delays to raise or
possession and is finally
pay money. When an executor
disposed of by him in the
or administrator neglects or
payment of debts, expenses,
unreasonably delays to raise
legacies, or distributive shares,
money, by collecting the debts
or by delivery to heirs or
or selling the real or personal
devisees, of two per centum of
estate of the deceased, or
the first five thousand pesos of
neglects to pay over the money
such value, one per centum of
favor of the estate against a 3rd Vda. de Jacob v. CA, 184 SCRA 294
person, except when such claim is (1990) Mortgagee does not lose its
made in the form of a right to extrajudicially foreclose
counterclaim. This counterclaim is the mortgage even after the death
proper in an answer by the of the mortgagor. Filing a claim
executor or administrator to a with the probate court is merely an
claim of a creditor. The probate option, not a requirement, for the
court can resolve the counterclaim mortgagee to recover his credit.
even if the original claim is denied.
17. Actions By and
Villanueva v. Ramos, 161 SCRA Against Executors
(1988)
and Administrators
Intestate Estate of Dominador
Danan v. Buencamino, 110 SCRA a. Rule 87
352 (1981) The court has Sec. 1. Actions which may
discretion to entertain a claim filed and which may not be brought
beyond the period prescribed in against executor or
the notice, provided it is filed administrator. No action upon a
within 1 month from expiration of claim for the recovery of money
such period but in no case beyond or debt or interest thereon
the date of entry of the order of shall be commenced against
distribution Objection as to the executor or administrator;
timeliess of a claim is waived by but actions to recover real or
laches and estoppel (e.g. by filing personal property, or an
of an answer, by asking for a interest therein, from the
postponement of hearings on the estate, or to enforce a lien
claim) thereon, and actions to recover
Jaucian v. Querol, 39 Phil. 707 damages for an injury to person
(1918) Where two persons are or property, real or personal,
bound in solidum for the same may be commenced against
debt and one of them dies, the him.
whole indebtedness must be cf Rule 3, Sec. 16 and 20, RoC
proved against the estate of the
Sec. 16. Death of party; duty of
deceased. If the claim is not thus counsel. — Whenever a party to a
presented, the same will be barred pending action dies, and the claim
as against that estate. is not thereby extinguished, it shall
be the duty of his counsel to
Buan. v. Laya, 102 Phil. 682 (1957) inform the court within thirty (30)
A contingent properly filed before days after such death of the fact
the probate court subsists until the thereof, and to give the name and
contingency has been finally address of his legal representative
or representatives. Failure of
decided or determined. Dismissal
counsel to comply with this duty
of the contingent claim prior to shall be a ground for disciplinary
such final determination is action.
premature. The heirs of the deceased may be
allowed to be substituted for the
action for damages from tort is made by the will or the estate
similar to recovery of property, appropriated, is not sufficient
enforcing a lien on property and to for that purpose, such part of
recover damages, an action for the estate of the testator, real
damages from tort seeks to or personal, as is not disposed
recover an unliquidated amount, of by will, if any, shall be
unlike money claims which are appropriated for that purpose.
specific in amount.
Sec. 3. Personalty first
Guanco v. PNB, 54 Phil. 244 (1930) chargeable for debts, then
A proceeding for examining realty. The personal estate of
persons suspected of having the deceased not disposed of by
concealed, embezzled, or conveyed will shall be first chargeable
away property of the estate is to with the payment of debts and
elicit evidence. It does not expenses; and if said personal
authorize the court to enforce estate is not sufficient for that
delivery of possession of the things purpose, or its sale would
involved. The remedy is to file an redound to the detriment of the
separate action. participants of the estate, the
whole of the real estate not
18. Payment of the
disposed of by will, or so much
Debts of the Estate thereof as is necessary, may be
a. Rule 88 sold, mortgaged, or otherwise
encumbered for that purpose
Sec. 1. Debts paid in full if by the executor or
estate sufficient. If, after administrator, after obtaining
hearing all the money claims the authority of the court
against the estate, and after therefor. Any deficiency shall be
ascertaining the amount of met by contributions in
such claims, it appears that accordance with the provisions
there are sufficient assets to of section 6 of this rule.
pay debts, the executor or
administrator shall pay the Sec. 4. Estate to be retained
same within the time limited to meet contingent claims. If
for that purpose. the court is satisfied that a
contingent claim duly filed is
Sec. 2. Part of estate from valid, it may order the executor
which debt paid when provision or administrator to retain in his
made by will. If the testator hands sufficient estate to pay
makes provision by his will, or such contingent claim when the
designates the estate to be same becomes absolute, or, if
appropriated for the payment of the estate is insolvent,
debts, the expenses of sufficient to pay a portion equal
administration, or the family to the dividend of the other
expenses, they shall be paid creditors. [CONNECT WITH P.
according to the provisions of 38] [huwag mo I benta ito!
the will; but if the provisions Security for contigent claim!]
(8) Credits between the landlord (2) For the unpaid price of real
and the tenant, arising from the property sold, upon the immovable
contract of tenancy on shares, on sold;
the share of each in the fruits or
(3) Claims of laborers, masons,
harvest;
mechanics and other workmen, as
(9) Credits for transportation, well as of architects, engineers
upon the goods carried, for the and contractors, engaged in the
price of the contract and incidental construction, reconstruction or
expenses, until their delivery and repair of buildings, canals or other
for thirty days thereafter; works, upon said buildings, canals
or other works;
(10) Credits for lodging and
supplies usually furnished to (4) Claims of furnishers of
travellers by hotel keepers, on the materials used in the construction,
movables belonging to the guest as reconstruction, or repair of
long as such movables are in the buildings, canals or other works,
hotel, but not for money loaned to upon said buildings, canals or
the guests; other works;
(11) Credits for seeds and (5) Mortgage credits recorded in
expenses for cultivation and the Registry of Property, upon the
harvest advanced to the debtor, real estate mortgaged;
upon the fruits harvested;
(6) Expenses for the preservation
(12) Credits for rent for one year, or improvement of real property
upon the personal property of the when the law authorizes
lessee existing on the immovable reimbursement, upon the
leased and on the fruits of the immovable preserved or improved;
same, but not on money or
(7) Credits annotated in the
instruments of credit;
Registry of Property, in virtue of a
(13) Claims in favor of the judicial order, by attachments or
depositor if the depositary has executions, upon the property
wrongfully sold the thing affected, and only as to later
deposited, upon the price of the credits;
sale.
(8) Claims of co-heirs for warranty
In the foregoing cases, if the in the partition of an immovable
movables to which the lien or among them, upon the real
preference attaches have been property thus divided;
wrongfully taken, the creditor may
(9) Claims of donors or real
demand them from any possessor,
property for pecuniary charges or
within thirty days from the
other conditions imposed upon the
unlawful seizure. (1922a)
donee, upon the immovable
Art. 2242. With reference to donated;
specific immovable property and
(10) Credits of insurers, upon the
real rights of the debtor, the
property insured, for the insurance
following claims, mortgages and
premium for two years. (1923a)
liens shall be preferred, and shall
constitute an encumbrance on the Art. 2243. The claims or credits
immovable or real right: enumerated in the two preceding
articles shall be considered as
(1) Taxes due upon the land or
mortgages or pledges of real or
building;
personal property, or liens within
the purview of legal provisions
governing insolvency. Taxes
settled and paid, the probate court a claim against the estate. The
may, after hearing, settle the remedy is for the probate court to
amount of liability corresponding order the slae of property of the
to distributee and order how much estate and all debts should be paid
and in what manner each of them out of the proceeds of the sale.
shall contribute, and may issue
execution against them or their 19. Sales, Mortgages,
bond, if any. Without hearing, any and Other
order for return of property Encumbrances of
distributed is premature. Property of
Dinglasan v. Ang Chia, 88 Phil. 476 Decedent
(1951) Administration proceedings
a. Rule 89
may not be closed if there is an
action by 3rd persons against the Sec. 1. Order of sale of
administrator and the heirs for personalty. Upon the
recovery of property involved in application of the executor or
the proceedings, and in such case, administrator, and on written
the closure must wait until the notice to the heirs and other
ordinary civil action is finally persons interested, the court
terminated. may order the whole or a part
of the personal estate to be
Intestate of Januaria Gonzales, 72
sold, if it appears necessary for
Phil. 245 (1941) Sales ordered by
the purpose of paying debts,
the probate court for payment of
expenses of administration, or
debts are final and not subject to
legacies, or for the preservation
legal redemption.
of the property.
Echaus v. Blanco, 179 SCRA 704
(1989) Under the 1964 Rules of Sec. 2. When court may
Civil Procedure action for money authorize sale, mortgage, or
claims pending against a deceased other encumbrance of realty to
should be dismissed and instituted pay debts and legacies through
as a money claim in the estate personalty not exhausted.
proceedings. Failure of the estate When the personal estate of the
to move to dismiss is a waiver of deceased is not sufficient to
its objections. The money pay the debts, expenses of
judgment may be claimed in the administration, and legacies, or
estate proceedings, even outside where the sale of such personal
the statute of non-claims. estate may injure the business
Furthermore, the court has or other interests of those
discretion to entertain a claim interested in the estate, and
beyond the statute of non-claims where a testator has not
provided an order of distribution is otherwise made sufficient
yet to be entered. Pendency of a provision for the payment of
case is good excuse for tardiness such debts, expenses, and
in the filing of the claim. However, legacies, the court, on the
execution is not proper to enforce application of the executor or
for that purpose has been given jurisdiction, does not confer on the
personally or by mail to all purchaser a title.
persons interested, and such Estate of Gamboa v. Floranza, 12
further notice has been given, Phil. 191 (1908) The probate court
by publication or otherwise, as has no power to order the sale of a
the court deems proper; nor if specific piece of real estate for the
the assets in the hands of the purpose of paying a mortgage debt
executor or administrator will which is a lien thereon. It may be
thereby be reduced so as to that the court would have
prevent a creditor from authority to sell the property,
receiving his full debt or subject to the mortgage lien, for
diminish his dividend. the purpose of paying other debts
Sec. 9. When court may of the estate, but there is nothing
authorize conveyance of lands giving the court authority to sell it
which deceased held in trust. for the purpose of paying that
Where the deceased in his specific debt. An order made by
lifetime held real property in the probate court for the sale of
trust for another person, the real property of the estate is void
court may, after notice given as when no notice of the hearing
required in the last preceding upon the petition for such sale is
section, authorize the executor given. The sale made pursuant to
or administrator to deed such such order is also void.
property to the person, or his CFI of Rizal v. CA, 106 SCRA 114
executor or administrator, for (1981) Sale of estate property may
whose use and benefit it was so not be disapproved on the sole
held; and the court may order ground that there is a higher offer.
the execution of such trust, For a person to be able to
whether created by deed or by intervene in an administration
law. proceeding concerning the estate
b. Cases of a deceased person, it is
necessary for him to have an
Godoy v. Orellano, 42 Phil. 347 interest in such estate. A
(1921) The court has exclusive prospective buyer of estate
jurisdiction to authorize the sale of property is not an interested party
properties of the estate. A power in the estate and has no right to
of attorney executed by the heirs intervene either in the proceedings
in favor of the administrator, brought in connection with the
without authority of court, has no estate or in the settlement of the
legal effect. A sale by an succession. Lastly, to prevent sale
administrator of the personal of estate property, the oppositor
property of the estate, without the must post a bond.
authority of an order of court, or of
a will, or under an order of court Jaroda v. Cusi, 28 SCRA 1008
which is void for want of (1969) If even to sell for valuable
consideration property of the
estate requires prior written notice
(2) To give them love and affection, parental authority, or the guardian
advice and counsel, companionship is a stranger, or a parent has
and understanding;
remarried, in which case the
(3) To provide them with moral and ordinary rules on guardianship
spiritual guidance, inculcate in
shall apply.
them honesty, integrity, self-
discipline, self-reliance, industry Sec. 8. Service of judgment.
and thrift, stimulate their interest Final orders or judgments
in civic affairs, and inspire in them
compliance with the duties of under this rule shall be served
citizenship; upon the civil registrar of the
(4) To furnish them with good and
municipality or city where the
wholesome educational materials, minor or incompetent person
supervise their activities, resides or where his property or
recreation and association with part thereof is situated.
others, protect them from bad
company, and prevent them from 3. Rule 94: Bonds of
acquiring habits detrimental to
their health, studies and morals;
Guardians
(5) To represent them in all Sec. 1. Bond to be given
matters affecting their interests; before issuance of letters.
(6) To demand from them respect Amount. Conditions. Before a
and obedience; guardian appointed enters
(7) To impose discipline on them as
upon the execution of his trust,
may be required under the or letters of guardianship issue,
circumstances; and he shall give a bond, in such
(8) To perform such other duties as sum as the court directs,
are imposed by law upon parents conditioned as follows:
and guardians. (316a)
(a) To make and return to
Parents are the joint legal the court, within three (3)
guardians over the property of the months, a true and complete
child, without the necessity of a inventory of all the estate, real
court appointment. In case of and personal, of his ward which
disagreement, the father's decision shall come to his possession or
shall prevail, unless there is a knowledge or to the possession
judicial order to the contrary. or knowledge of any other
If the value of the child’s property person for him; [Sounds
or annual income exceeds familiar? Same with estate
P50,000, the parents are still the proceedings]
guardians without necessity of (b) To faithfully execute
court appointment, but they must the duties of his trust, to
post a bond to guarantee the manage and dispose of the
performance of the obligations estate according to these rules
prescribed for general guardians. for the best interests of the
The ordinary rules on guardianship ward, and to provide for the
shall be merely suppletory except proper care, custody, and
when the child is under substitute education of the ward;
supervision and jurisdiction of the and that the transfer to the PNB
court having cognizance of the branch at San Fernando, La Union
guardianship. Hence, the court has would be more convenient to all
jurisdiction to pass upon the concerned for the proper
application for approval of the administration of the estate. PNB
lease contract. The order denying and Veteran’s Administration
such approval is appealable. appeals.
Moran: A guardian has no power Held: Sec. 2, Rule 97 of the
to lease realty for more than 6 current Rules provides
years, for that would not be a mere Sec. 2. When guardian removed or
act of adminstration. (p. 728) allowed to resign. New
appointment. When a guardian
de Leon: Among the authorities becomes insane or otherwise
cited by Moran is Gamboa v. Lopez incapable of discharging his trust
Vito. However, the case expressly or unsuitable therefor, or has
stated that it was resolving the wasted or mismanaged the estate,
case “without anticipating whether of failed for thirty (30) days after it
is due to render an account or
the respondent guardian could make a return, the court may, upon
enter into a valid contract of lease reasonable notice to the guardian,
for six (6) years without the remove him, and compel him to
authority or approval of the court surrender the estate of the ward to
having cognizance of the the person found to be lawfully
entitled thereto. A guardian may
guardianship.” resign when it appears proper to
Bengzon v. PNB, 3 SCRA 751 allow the same; and upon his
resignation or removal the court
(1961) may appoint another in his place.
Facts: The ward was the mother of A guardian cannot be legally
a veteran who died in WWII. She removed from office except for the
was a beneficiary of accrued cause therein mentioned. To the
insurance benefits and to a extent that a court uses its
monthly death compensation for discretion in appraising whether or
the rest of her life, all extended by not a person is unsuitable or
the United States Veterans incapable of discharging his trust,
Administration. PNB was that much it can be said that
appointed as her guardian. 2 years removal is discretionary. But the
and 7 months later, upon motion, discretion must be exercised
the court removed PNB and within the law, and when the latter
appointed the ward’s son, has laid down the grounds for
Francisco Bengson, as her removal of a guardian, discretion
guardian on the grounds that the is limited to inquiring as to the
ward was living with Francisco existence of any of those grounds.
Bengson in the latter's capacity as
personal guardian; that the No pretense is made in this case,
appointment of Bengson in place and nothing in the record would
of the PNB would save the indicate, that there was any legal
compensation being paid to PNB; ground upon which the removal of
.2 spouse seeks to adopt his own .10 agrees to uphold the basic
illegitimate child: Provided, rights of the child as embodied
However, that the other spouse under
has signified his consent .a Philippine laws
.3 spouses are legally separated .b the U.N. Convention on the
from each other. Rights of the Child
In case husband and wife jointly .c the rules and regulations
adopt, or one spouse adopts the issued to implement the
illegitimate child of the other, joint provisions of the ICA;
parental authority shall be
exercised by the spouses. .11 comes from a country
Qualifications of inter-country .a with whom the Philippines
adopter has diplomatic relations and
.1 non-Philippine resident .b whose government maintains
a similarly authorized and
.2 at least 27 years old accredited agency
.3 at least 16 years older than the .c whose laws allow adoption
child to be adopted, unless the
adoptor is the biological parent .12 possesses all the
or the spouse of such parent: qualifications and none of the
disqualifications provided
.4 spouses must jointly adopt (de herein and in other applicable
Leon: no exceptions) Philippine laws.
.5 capacity to act and assume all de Leon: Note that in domestic
rights and responsibilities of adoption, there are exceptiosn to
parental authority under his the rule that spouses must jointly
national laws adopt. In inter-country adoption,
.6 has undergone the appropriate spouses must always adopt jointly,
counseling from an accredited NO EXCEPTIONS.
counselor in his country; Sec. 3. Consent to adoption.
.7 has not been convicted of a There shall be filed with the
crime involving moral petition a written consent to
turpitude; the adoption signed by xxx each
of its (the child’s) known living
.8 eligible to adopt under his
national law; parents who is not insane or
hopelessly intemperate or has
.9 in a position to provide the not abandoned such child, or if
proper care and support and to there are no such parents by
give the necessary moral values the general guardian or
and example to all his children, guardian ad litem of the child,
including the child to be or if the child is in the custody
adopted; of an orphan asylum, children's
home, or benevolent society or
which date shall not be more The case study on the adoptee
than six (6) months after the shall establish that he/she is
legally available for adoption and
entry of the order, and shall that the documents to support this
direct that a copy of the order fact are valid and authentic.
be published before the Further, the case study of the
hearing at least once a week for adopter(s) shall ascertain his/her
genuine intentions and that the
three (3) successive weeks in
adoption is in the best interest of
some newspaper of general the child.
circulation published in the
The Department shall intervene on
province, as the court shall behalf of the adoptee if it finds,
deem best. after the conduct of the case
studies, that the petition should be
cf Secs. 10-12 DAA
denied. The case studies and other
Sec. 10. Hurried Decisions. — In relevant documents and records
all proceedings for adoption, the pertaining to the adoptee and the
court shall require proof that the adoption shall be preserved by the
biological parent(s) has been Department.
properly counseled to prevent
Sec. 12. Supervised Trial Custody.
him/her from making hurried
— No petition for adoption shall be
decisions caused by strain or
finally granted until the adopter(s)
anxiety to give up the child, and to
has been given by the court a
sustain that all measures to
supervised trial custody period for
strengthen the family have been
at least six (6) months within
exhausted and that any prolonged
which the parties are expected to
stay of the child in his/her own
adjust psychologically and
home will be inimical to his/her
emotionally to each other and
welfare and interest.
establish a bonding relationship.
Sec. 11. Case Study. — No petition During said period, temporary
for adoption shall be set for parental authority shall be vested
hearing unless a licensed social in the adopter(s). [dry run]
worker of the Department, the
The court may motu proprio or
social service office of the local
upon motion of any party reduce
government unit, or any child-
the trial period if it finds the same
placing or child-caring agency has
to be in the best interest of the
made a case study of the adoptee,
adoptee, stating the reasons for
his/her biological parent(s), as well
the reduction of the period.
as the adopter(s), and has
However, for alien adopter(s),
submitted the report and
he/she must complete the six (6)-
recommendations on the matter to
month trial custody except for
the court hearing such petition.
those enumerated in Sec. 7 (b) (i)
At the time of preparation of the (ii) (iii) [alien adopters whose
adoptee's case study, the residency and certification
concerned social worker shall requirements may be waived].
confirm with the Civil Registry the
If the child is below seven (7)
real identity and registered name
years of age and is placed with the
of the adoptee. If the birth of the
prospective adopter(s) through a
adoptee was not registered with
pre-adoption placement authority
the Civil Registry, it shall be the
issued by the Department, the
responsibility of the concerned
prospective adopter(s) shall enjoy
social worker to ensure that the
all the benefits to which biological
adoptee is registered.
parent(s) is entitled from the date
the adoptee is placed with the The Rules of Court shall apply in
prospective adopter(s). case of adoption by judicial
proceedings.
cf Secs. 10-15 ICA
Sec. 11. Family
Sec. 10. Where to File Application. Selection/Matching. - No child
- An application to adopt a Filipino shall be matched to a foreign
child shall be filed either with the adoptive family unless it is
Philippine Regional Trial Court satisfactorily shown that the child
having jurisdiction over the child, cannot be adopted locally. The
or with the Board, through an clearance, as issued by the Board,
intermediate agency, whether with the copy of the minutes of the
governmental or an authorized and meetings, shall form part of the
accredited agency, in the country records of the child to be adopted.
of the prospective adoptive When the Board is ready to
parents, which application shall be transmit the Placement Authority
in accordance with the to the authorized and accredited
requirements as set forth in the inter-country adoption agency and
implementing rules and all the travel documents of the
regulations to be promulgated by child are ready, the adoptive
the Board. parents, or any one of them, shall
The application shall be supported personally fetch the child in the
by the following documents Philippines.
written and officially translated in Sec. 12. Pre-adoptive Placement
English. Costs. - The applicant(s) shall bear
a) Birth certificate of applicant(s); the following costs incidental to
the placement of the child;
b) Marriage contract, if married,
and divorce decree, if applicable; a) The cost of bringing the child
from the Philippines to the
c) Written consent of their residence of the applicant(s)
biological or adoptive children abroad, including all travel
above ten (10) years of age, in the expenses within the Philippines
form of sworn statement; and abroad; and
d) Physical, medical and b) The cost of passport, visa,
psychological evaluation by a duly medical examination and
licensed physician and psychological evaluation required,
psychologist; and other related expenses.
e) Income tax returns or any Sec. 13. Fees, Charges and
document showing the financial Assessments. - Fees, charges, and
capability of the applicant(s); assessments collected by the
f) Police clearance of applicant(s); Board in the exercise of its
functions shall be used solely to
g) Character reference from the process applications for inter-
local church/minister, the country adoption and to support
applicant's employer and a the activities of the Board.
member of the immediate
community who have known the Sec. 14. Supervision of Trial
applicant(s) for at least five (5) Custody. - The governmental
years; and agency or the authorized and
accredited agency in the country
h) Recent postcard-size pictures of of the adoptive parents which filed
the applicant(s) and his immediate the application for inter-country
family; adoption shall be responsible for
the trial custody and the care of
the child, the court may make If the court finds that the
an order taking it from its disclosure of the information to a
third person is necessary for
parents, if living; and purposes connected with or arising
committing it to any suitable out of the adoption and will be for
orphan asylum, children's the best interest of the adoptee,
home, or benevolent society or the court may merit the necessary
information to be released,
person to be ultimately placed,
restricting the purposes for which
by adoption or otherwise, in a it may be used.
home found for it by such
asylum, children's home,
society or person.
Sec. 8. Service of judgment.
Final orders or judgments 3. Rule 100:
under this rule shall be served Rescission and
by the clerk upon the civil
Revocation of
registrar of the city or
municipality wherein the court Adoption
issuing the same is situated. Sec. 1. Who may file
cf Secs. 14-15 DAA petition; grounds. xxx (repealed
by Sec. 19, Domestic Adoption Act)
Sec. 14. Civil Registry Record. —
An amended certificate of birth cf Sec. 19 DAA
shall be issued by the Civil
Sec. 19. Grounds for Rescission of
Registry, as required by the Rules
Adoption. — Upon petition of the
of Court, attesting to the fact that
adoptee, with the assistance of the
the adoptee is the child of the
Department if a minor or if over
adopter(s) by being registered
eighteen (18) years of age but is
with his/her surname. The original
incapacitated, as
certificate of birth shall be
guardian/counsel, the adoption
stamped "cancelled" with the
may be rescinded on any of the
annotation of the issuance of an
following grounds committed by
amended birth certificate in its
the adopter(s): (a) repeated
place and shall be sealed in the
physical and verbal maltreatment
civil registry records. The new
by the adopter(s) despite having
birth certificate to be issued to the
undergone counseling; (b) attempt
adoptee shall not bear any
on the life of the adoptee; (c)
notation that it is an amended
sexual assault or violence; or (d)
issue.
abandonment and failure to
Sec. 15. Confidential Nature of comply with parental obligations.
Proceedings and Records. — All
Adoption, being in the best
hearings in adoption cases shall be
interest of the child, shall not be
confidential and shall not be open
subject to rescission by the
to the public. All records, books,
adopter(s). However, the
and papers relating to the
adopter(s) may disinherit the
adoption cases in the files of the
adoptee for causes provided in
court, the Department, or any
Article 919 of the Civil Code.
other agency or institution
participating in the adoption Grounds for revocation of adoption
proceedings shall be kept strictly (can only be filed by adopted)
confidential.
Held: The fact that the prospective adoption court has the power to
adopters reside temporarily in a delegate reception of evidence to
foreign country does not disqualify the clerk of court.
them from adopting a minor child.
F. Rule 101:
Besides, the law specifically Hospitalization of
authorizes the court, either upon
Insane Persons
its own or on petitioner's motion,
to dispense with the trial custody if Sec. 1. Venue. Petition for
it finds that it is to the best commitment. A petition for the
interest of the child. In this case, commitment of a person to a
the Minister of Social Services and hospital or other place for the
Development suggests that trial insane may be filed with the
custody is unnecessary because Court of First Instance of the
the child was already comfortable province where the person
with the couple and the couple was alleged to be insane is found.
capable of disciplining the child. The petition shall be filed by
Bobanovic v. Montes, 142 SCRA the Director of Health in the all
485 (1986) cases where, in his opinion,
such commitment is for the
Facts: Order granting adoption public welfare, or for the
became final. Adopting parents welfare of said person who, in
applied for travel clearance with his judgment, is insane, and
the MSSD for the adopted to travel such person or the one having
with them to Australia. MSSD charged of him is opposed to
refused on the ground that it was his being taken to a hospital or
not notified of the petition nor of other place for the insane.
the order granting adoption.
Venue for petition for the
Held: The fact that the order commitment of an insane person to
setting the petition for adoption a hospital – RTC of the province
was published is ground to where the person alleged to be
presume that MSSD had insane is found
knowledge of the adoption
proceedings and could have The petition shall be filed by the
intervened. Director of Health
.2 death of the absentee is proved war, and has been missing for
and his testate or intestate four years;
heirs appear;
(3) A person who has been
.3 a third person appears, showing in danger of death under other
by a proper document that he circumstances and his
has acquired the absentee's existence has not been known
property by purchase or other for four years. (n)
title.
Art. 41. A marriage
4. Presumption of contracted by any person
Death (Arts. 390- during subsistence of a
391 NCC, Art. 41 previous marriage shall be null
and void, unless before the
FC) celebration of the subsequent
Art. 390. After an absence of marriage, the prior spouse had
seven years, it being unknown been absent for four
whether or not the absentee consecutive years and the
still lives, he shall be presumed spouse present has a well-
dead for all purposes, except founded belief that the absent
for those of succession. spouse was already dead. In
case of disappearance where
The absentee shall not be
there is danger of death under
presumed dead for the purpose
the circumstances set forth in
of opening his succession till
the provisions of Article 391 of
after an absence of ten years. If
the Civil Code, an absence of
he disappeared after the age of
only two years shall be
seventy-five years, an absence
sufficient.
of five years shall be sufficient
in order that his succession For the purpose of
may be opened. (n) contracting the subsequent
marriage under the preceding
Art. 391. The following shall
paragraph the spouse present
be presumed dead for all
must institute a summary
purposes, including the
proceeding as provided in this
division of the estate among
Code for the declaration of
the heirs:
presumptive death of the
(1) A person on board a absentee, without prejudice to
vessel lost during a sea voyage, the effect of reappearance of
or an aeroplane which is the absent spouse. (83a)
missing, who has not been
Periods for presumption of death
heard of for four years since
the loss of the vessel or .1 opening of succession
aeroplane; a. Ordinary absence
(2) A person in the armed 1) disappears at age 75 and
forces who has taken part in up – 5 years