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SPECIAL PROCEEDINGS Settlement of Estate.

If you look into the table of contents of your Rules of Court, you will notice that partly special proceedings consist only of 37 rul es. And then out of the 37 rules, 20 of them are concerned with settlement of es tate, that is more than of the rules on special proceedings are centered on sett lement of estate of deceased persons. Some of these rules are no longer applicab le the constitution of the family home has practically been rendered useless by the Family Code. If you go through the last part of the Rules of Court, you will also notice that in the distribution of examinations in procedure, the rules ex plicitly require that 60% of questions in the Bar should come from civil actions , that s civil procedure, 20% of the questions should be centered on evidence, 10% in criminal procedure and also 10% in special proceedings. So if there is a nee d to give an emphasis in procedure, do so in civil actions and probably evidence . And of course civil actions will include the rule on the jurisdiction of court s. The rules governing settlement of estate could easily be understood if we d efine some of the terms that are scattered among these 20 rules, the 1st term th at you should take note of is testamentary privilege. This is not embodied in th e Rules of Court. It is part of the Civil Code which is implemented by the rules on the settlement of estate, testamentary privilege refers to the right given b y law to a person to dispose of his property during his lifetime but the disposi tion of the property may take effect after his death. So it is unlike a disposit ion during the lifetime of a person and the disposition also takes effect during his lifetime like a deed of sale by the owner. In a testamentary privilege, the re is a disposition by the person of his property through an instrument authoriz ed by law and that disposition will take place after his death. It is this dispo sition that is regulated by the rules of settlement of estate. Another term that you should be familiar with is letters of administration, letters testamentary, letters of administration with the will annexed, special administrator, special administration, and ancillary administration. Letters tes tamentary is the authority given by the court to an executor who has been duly a dmitted probate and in that will the testator has nominated an executor and this executor and this executor is duly appointed by the court and the executor last ly accepts the office that is given to him by the court. When the executor nomin ated in the will accepts the trust and he complies with the other procedural req uirements, the court will issue letters testamentary. But if there is no will or even if there is a will but the executor refuses to accept the trust, the court will appoint an administrator. The appointment of this administrator if there i s a will is contained in a document called letters of administration with the wi ll annexed. When the document is simply letters of administration it means that there is no will or if there is a will it has not been only admitted to probate and therefore intestacy results. The administrator will be appointed by the cour t and the appointment of this administrator will be evidenced by what we call as letters of administration. An ancillary administrator, on the other hand, assum es or presupposes that there is a principal administration proceeding in a forei gn country but the document left some properties in the Philippines. The decisio n of the foreign courts to appoint an executor or administrator to that foreign country cannot be enforced in the Philippines because the efficacy of orders or decisions rendered by the court is limited to the territorial jurisdiction of th e court. In order to have an administrator in the other country where the descen dant has left some properties, the recourse is ancillary administration. The adm inistrator for this particular purpose is called an ancillary administrator. Also in settlement proceedings, you should be familiar with what is known a s the statute of non-claims. The statute of non-claims is contained in Rule 86. It is a rule of prescription contained in the Rules of Court. In Rule 86, it is t provided that all claims for money arising from a contract, express or implied hose on funeral expenses, hospitalization should be filed within a certain perio d. Otherwise, these claims are barred. So the statute of non-claims provides for a prescription with which, claims should be submitted to the court. The consequ

ence if these claims are not duly submitted to the settlement court on time, the n the creditors will lose their right to enforce collection of their claims. Tha t is the statute of non-claims. So, in procedure, you have some other statute li ke the statute of frauds, statute of limitations, but on settlement proceedings, we also have this statute of non-claims. If is very easy to understand that the settlement proceedings could take pl ace only after the decedent has died. If the person is still alive and he, for i nstance, executes a will during his lifetime, he himself can go to court and ask for the probate of his will. But even if a will has duly been admitted to proba te during the lifetime of this person, there is nothing to prevent him from revo king the will or executing another will. So, usually this proceeding takes place after the death of the decedent or the testator. In the Civil code, when a pers on dies, the heirship automatically vests upon the heirs that means to say that the heirs become such immediately after the death of the testator. But it does n ot mean to say that the heirs can automatically take possession and ownership ov er the properties left by the decedent. This is qualified by the absence of cred itors of this decedent. In settlement, therefore, the principal purpose of settl ement proceedings is to liquidate the estate of the deceased. When we talk about liquidation, we refer to the acts of making an [1] inven tory of all the properties of the deceased, and [2] naming all the creditors of the deceased person. The heirs cannot inherit anything if it turns out that ther e are more liabilities than assets of the estate. So, if the estate of a decease d person is insolvent, the heirs will not inherit anything. The creditors of the deceased person are always given preference over his heirs. Included in the ter m creditors is the Republic of the Philippines, in the form of taxes. So the State will always get its share in the taxes of other creditors and the heirs of the deceased person. If a person dies and there is no will left by him, the law give s two options to the heirs when it comes to the matter of the settlement of the estate. The first option is for the heirs not to go to court anymore. They can s ettle the estate among themselves extra-judicially that is, without interference by the court. But if there is no agreement among the heirs or if there is dispu te among them, the only recourse is to go to court. When they go to court, they could either file a complaint for partition, which is special civil action, or t hey could institute settlement proceedings that is a probate proceeding or a pro ceeding on intestacy. When the case filed is partition, then that will not be co nsidered as a special proceeding. Partition is treated under the rules as a spec ial civil action. The whole thrust of this procedure is that the Republic of the Philippines should always get its share in the form of taxes. So, even if the h eirs extra-judicially settle the estate of the predecessor in interest on the pr emise that there is will and there are no debts. That extra-judicial settlement can never be registered by the officers of the government unless the taxes are p aid first. What are the conditions before the heirs of a deceased person, can extra-ju dicially settles the estate of the descent? First, the decedent must have left a will. Second, there are no debts. Third, the parties agree among themselves to the partition of the properties left by the decedent. The document that is execu ted by the heirs, if there are two or more heirs called the deed of extra-judici al partition. If there is only one heir, the document that is executed is affida vit of self-adjudication. But remember that the facts that must be stated in the deed of extra-judicial partition or in the affidavit of self-adjudication are t hat there was a will left behind and that the decedent did not leave any indebte dness, there are no creditors of the estate. If the estate consist personal and real properties, there will be need for the certification title to be transferre d in the name of the heirs in accordance with the partition agreed upon in the deed of extra-judicial partition. Before the Registrar of Deeds will record any deed of extra-judicial partition, the Registrar of Deeds is required by law to compel the heirs to submit a clearance from the BIR. The Registrar of Deeds will not register any document extra-judicially partitioning the property unless the re is a clearance from the BIR. We mean say that the Register of Deeds must be s atisfied that the proper taxes have already been paid to the government. So whet

her the proceeding is judicial or extra-judicial, the state will always get its share. The Republic of the Philippines will get its share from the estate in the form of taxes. With respect to the Republic of the Philippines, there is practi cally no danger that the Republic will lose the taxes. The particular concern is with the other creditor of the deceased. Since it is very easy and convenient f or the heirs to state in the deed of extra-judicial partition that the decedent did not leave any indebtedness, it is very likely that the heirs are not telling the truth. If they say in the document that there are no creditors or that ther e is no indebtedness. Left behind, the Register of Deeds will simply believe wha t they are alleging in the deed of extra-judicial partition or in the affidavit of self-adjudication. The protection given by the rules to the creditors is that if the estate consists of real properties, the title that will be issued to the heirs will carry an encumbrance that the properties will be liable for the paym ent of indebtedness within a period of 2 years. If there are no real properties involved, the protection given by law to the creditors is that these heirs will be required to file a bond equivalent to the value of the personal properties le ft behind. So insofar as creditors are concerned, there is also ample protection even if the estate is settled extra-judicially among their heirs. Any creditor who is prejudiced by the extra-judicially among their heirs. Any creditor who is prejudiced by the extra-judicial settlement can later on enforce his claim beca use there is an annotation in the title delivered to the heirs that these proper ties are subject to the payment of creditors within a period of 2 years. If the heirs decide to go to court by way of settlement proceedings, they a re also given 2 options. The first is to settle the estate is practically useles s because the amount stated in the rules has never been changed. Under the rules , summary settlement of estate is possible only if the value of the estate does not go beyond PhP10, 000. So it s useless. Heirs will not bother themselves filing a petition for summary settlement if the value of the estate is only PhP10, 000 . That will not even be enough to cover the cost of publication. When they go to court in regular settlement proceedings, the first problem which the heirs will face is of course the problem of jurisdiction. BP129, when regular administration or settlement proceedings commenced, the court that has j urisdiction is either a RTC or an inferior court depending upon the gross value of the estate. If the gross value of the estate does go beyond PhP400, 000 or Ph P300, 000 as the case may be, the settlement court is an inferior court. But if the value goes beyond PhP400, 000 or PhP300, 000 as the case may be, the settlem ent court is a RTC. The underlying principle in regular settlement proceeding is that there sho uld be only one court to settle the estate of a deceased person. We cannot have more than one court in charge of the settlement of the estate. Otherwise, there is a possibility of these courts issuing conflicting decisions and orders. In or der to avoid this possibility, the rules have laid down the principle that the c ourt which first takes cognizance of a settlement proceeding will be the only co urt that will handle this proceeding to the exclusion of all other courts. Usual ly in special proceeding, the heirs go to court for this purpose of settlement b ecause the estate is huge, there is a lot of money and properties involved. The natural instinct of any living person who is wealthy is to have as many families as possible so that wealthy persons may have a family in Davao, another family in Cebu and another family in manila. When that person dies, the problem is wher e to file the settlement proceedings. Is it Cebu, or Davao or Manila? The princi ple is very clear. It is the place where the decedent last resided. And because he has families in all these three cities, he can be considered as having reside d in any of these cities. So, the rule says, the court which first takes cogniza nce will have control over the settlement proceedings to the exclusion of other courts. So it is not unusual, after a rich person has died, for a mistress to fi le settlement proceedings in Davao, and the legitimate spouse to file another se ttlement proceeding in Manila. These two courts cannot have concurrent jurisdict ion. One of them has to give way to the other for the purpose of the settlement of the estate. The principle again is that the court which first takes cognizanc e will do so to the exclusion of other courts.

A settlement court, whether the proceeding is testate or intestate, is a co urt that acts with a very limited jurisdiction. Its jurisdiction is only to [1] liquidate the estate, [2] decide the claims against the estate, [3] decide who t he heirs are and, thereafter, [4] distribute the estate. So, if there is any que stion concerning ownership of a piece of land owned by the decedent, the settlem ent court has NO authority to rule on this issue of ownership. Another proceedin g should be filed before a regular court, separate and distinct from the settlem ent proceeding. So, settlement courts have limited jurisdiction. They cannot adj udicate; they cannot resolve questions of ownership involving properties of the decedent if these properties are claimed by strangers. An independent action mus t be filed for the purpose of adjudicating this controversy. It is also settled that if a person dies with a will, it is not necessary t o commence settlement proceedings to file a petition for the allowance of the wi ll. If a person dies and he has left a will, the person in custody of that will can simply go to a court, RTC or an inferior court as the case may be, surrender the will to the court and the act of surrendering that will to the court alread y commences settlement proceedings. So there is no absolute necessity for the fi ling of a petition for the allowance of the will. But generally in settlement pr oceeding, the petition prepared by a lawyer will be accompanied by the petition for the probate of a will or petition for the issuance of letters of administrat ion as the case may be. The petition for the allowance of the will or the petiti on for the issuance of letters of administration should embody the legatees or t he devisees, the last residence of the decedent. These are the jurisdictional fa cts which should be embodied therein. You will also notice that a petition for probate of a will or a petition fo r the issuance of letters of administration only has a petitioner in the faction of the proceeding. There are no respondents mentioned. That is why a settlement is a classical example of a proceeding in rem. There is no petitioner but there are no respondents identified in the petition. How does the court then acquire jurisdiction over the heirs, over the persons interested in the estate of this d eceased? Once a petition for issuance of letters of administration is filed with the court, the court is compelled to issue an order setting the matter of heari ng. It s either for the issuance of letters of administration or for the probate o f the will. This order will be published in a newspaper of general circulation o nce a week for 3 consecutive weeks. It is this act of publication which will con fer jurisdiction upon the court. In addition to the publication of this notice o f hearing, the court is required to serve by personal service or by registered m ail notices to the heirs, legatee and devisees identified in the petition. This is a mandatory requirement in addition to the publication of the notice of heari ng. If there is no notice given personally or by mail to the heirs identified or named in the petition, then, the court will not acquire jurisdiction over the p roceeding. This is to emphasize that a settlement proceeding is in rem and it is necessary for the court to comply strictly with the procedure for publication o r for the giving of notice to these individual heirs. But remember what is publi shed is the notice of hearing. It is the order of the court after the petition h as been filed or after a will has been submitted to the court. If there is a will left by the testator, then the hearing will first be con centrated on the extrinsic validity of the will that is, the court will have to make a finding as to whether or not the formal requirements of the will embodied in the Civil Code have been satisfied. And in the matter of presenting evidence for the probate of a will, there are certain evidentiary rules which depart fro m the rules on evidence that you have studied. For instance, the rules require t hat for the probate of contested will, the petitioner must present all the subsc ribing witnesses to the will and also the notary public, if they are still alive and if they are still competent to testify. So the petitioner cannot choose the witnesses he should present in order to prove the extrinsic validity of the wil l. He must present the subscribing witnesses to the will and you are very famili ar with the Civil Code provision that in a will, there must be at least three su bscribing witness. One of the problems that will therefore be faced by the petit ioner for the probate of a will is the possibility that these subscribing witnes

s will tell the court that they did not see the testator institute the will or t hat they did not sign the will in the presence of one another, which are require ments in the Civil Code. So if the petitioner presents subscribing witness #1, t he petitioner has in mind that this subscribing witness will tell the court that he saw the testator sign the will, that the testator signed the will in his pre sence and that the will was signed in the presence of the other witnesses. In so me instances, a subscribing witness will tell the court, I did not see the testat or sign the will or if the testator signed the will I was not present or the other w itnesses signed the will in my absence. The petitioner will then be faced with a serious problem because under the rules on evidence, a party cannot impeach his own witness that is, the party producing a witness will be bound by the testimon y of this witness that he has produced. That is a general principle in evidence. In this situation, can the petitioner present contradictory evidence? By way of exception to that evidentiary rule which says that a party cannot impeach his o wn witness. In the probate of a will, a petitioner is free to impeach a subscrib ing witness. Therefore, the petitioner is not bound by the testimony of these su bscribing witnesses. Even if the subscribing witnesses will later on tell the co urt that the will was not signed in their presence, that the signature of the te stator is not genuine, the petitioner is free to present other witnesses to cont radict the subscribing witnesses. What is the reason for allowing the petitioner to impeach the subscribing w itnesses or to contradict them? In probate proceedings, the petitioner really ha s no choice at all in presenting the subscribing witnesses. These witnesses are, in truth, not the witnesses of the petitioner. They are witnesses to be present ed in compliance with the Rules of Court. You should also be familiar with the last rule in special proceedings that is, the rule on appeals in special proceedings. If you will notice there are sev eral orders or decisions in the last rule which are declared to be applicable an d most of these rules enumerated in the last pertain to settlement proceedings. So, we will appreciate that in settlement proceedings. This is one instance wher e several appeals could be held in one and the same case. Let us say that the co urt issues an order admitting the will to probate. Admission to probate simply m eans that the will is extrinsically valid that is, the formal requirements in th e Civil Code have been satisfied by the testator and the subscribing witnesses. Probate of a will has nothing to do with the intrinsic validity of a will. It ha s nothing to do with the contents of the will. So even if a will is duly admitte d to probate, it does not mean to say that the contents of the will are valid by themselves alone. They may not be valid. If there is no will submitted to the c ourt, then the petition is simply called a petition for the issuance of letters of administration. Meaning to say that the proceedings are intestate. The court, after admitting a will to probate or if there is no will, after the hearing that is published has taken place, the court will either appoint an executor or an administrator. The executor or administrator appointed by the cou rt is a neutral party. He does not represent the heirs. The executor or administ rator is an officer of the court. And the requirement is that this executor or a dministrator must file a bond, in addition to the other duties which are embodie d in the rules. There is an order of preference when it comes to appointment of an administrator. But there is no preference when it comes to the appointment of an executor, for the simple reason that an executor is a person nominated in th e will by the testator himself. But when it comes to the appointment of an admin istrator, there is an order of preference: the surviving spouse, the next of kin , the person chosen by the surviving spouse or the next of kin, or the person du ly appointed by the court, if the surviving spouse or the next of kin refuses to accept the trust. In all proceedings, where there is an element of trust that is involved in the appointment of these officers like the administrator, executor, guardian or a trustee, the common obligation that the rules impose upon them aside from the filing of the bond is that they must a true and complete inventory. They must su bmit an accounting within a period of one [1] year and in such other time as the court will require. And they must obey at all times the orders issued by the co

urt, whether it is a settlement court or a guardianship court or a trusteeship c ourt. When the court appoints an executor or administrator, the appointment is a final order. Since it is a final order, that order is appealable. In other words , an heir or any person interested in the estate can always challenge the propri ety of an order appointing an executor or administrator. And if that order is ch allenged, the executor or administrator cannot perform the duties and rights of his office right away. He cannot be considered as an executor or administrator r ight away. So if the appointment of the executor or administrator is challenged, there will be a situation where nobody will be taking care of the properties of the estate while the appeal is going on. Now, who will take care of the propert ies? According to the rules, the court can now appoint a special administrator. The appointment of a special administrator is not appealable. In other words, on ce the court appoints a special administrator, this special administrator can im mediately take his oath of office. In certain cases, the executor or administrat or appointed by the court whose appointment has been challenged by an heir or an y interested person is appointed subsequently as a special administrator of the estate. For instance, if the administrator named by the court is Juan dela Cruz and his appointment as administrator is challenged, the court invariably appoint s Juan dela Cruz as special administrator. Is that a valid order on the part of the court? The answer is YES. Even if there is challenge to the appointment of a n executor or administrator, the court can still name the same person whose appo intment has been challenged as a special administrator of the estate. For instan ce, if the administrator named by the court is Juan dela Cruz and his appointmen t as administrator is challenged, the court invariably appoints Juan dela Cruz a s special administrator. Is that a valid order on the part of the court? Yes, ev en if there is a challenge to the appointment of an executor or administrator, t he court can still name the same person whose appointment has been challenged as a special administrator of the estate. There is conceivably no harm in appointi ng the same person as the special administrator because there is a vast differen ce between the powers and duties of a regular administrator and a special admini strator. A special administrator cannot pay obligations. All that he does is to protect the estate. He can only be a caretaker of the estate until a regular adm inistrator or executor is appointed by the court. Let us say that the appointment of the administrator is not challenged. So he now takes his oath of office, he submits a bond and then he submits an invent ory of all the properties of the estate in his possession and which has come to his knowledge. Then he will also give an appraisal of the value of theses proper ties. What will the court do after the administrator has taken his oath of offic e? The court will now issue another order fixing the date for the enforcement of the statute of non-claims. The court will issue an order directing money claima nts against the estates should file their claims within a period of not less tha n 5 months or more than 12 months from the date of first publication within whic h to submit their respective money claims. Otherwise, these money claims are bar red. So they will no longer be enforceable against the estate of the deceased pe rson. In relation to this money claims, we have to refer to the situation that i s contemplated in rule 3 of civil actions and also rule 39 when it comes to exec ution where the defendant has died and on evidentiary rule of pertaining to the admissibility of evidence in cases where a person has died, in rule 3 we all kno w that if the defendant dies during the pendency of a case, that action will not be dismissed by reason of the death of the defendant. For instance, if there a claim for the recovery of an unpaid loan in the sum of 1M and the defendant dies while the case is pending, the case will not be dismissed. What happens is that the counsel for the deceased defendant will notify the court that his client ha s died and he will submit to the court the names of the heirs who could act as s ubstitute defendant. If none of the heirs is willing to act as substitute defend ant, then the remedy of the plaintiff-creditor is to procure the appointment of an executor or an administrator of the estate. Meaning to say that nobody is wil ling to act as substitute defendant for the deceased defendant, it is now the bu rden of the creditor to file settlement proceedings. This will be a special proc

eeding for the settlement of the estate of the deceased debtor. Now the 1st question that will arise is does a creditor have a personality to commerce settlement proceedings of the estate of his deceased debtor? Yes, an y heir or any person interested in the estate can commerce the settlement procee dings and the term interested person includes the creditor of the decedent. Once an executor or administrator is appointed by the settlement court, the executor or administrator will now be the substitute defendant. The executor or administrator cannot refuse to act as a substitute defendant because that is on e of his duties as executor or administrator, to represent the estate in cases t hat are pending in court. You will know that this case for the recovery of an unpaid loan will not be dismissed. In fact it will be tried by the court until the judgment is fin ally entered. But let us say that the trial court eventually renders a decision in favor of the creditor. So the court tells the debtor, the estate of the defen dant, to pay the obligation and the judgment is entered. Can the creditor now en force the judgment by asking for the issuance of a writ of execution? NO, even i f the creditor eventually wins the case, he cannot enforce payment of the award through rule 39 that is the execution of judgment. In fact, if the debtor has di ed, there is no guaranty that the creditor will eventually recover the award. So even if the creditor has won the case, he cannot resort to rule 39 for the exec ution of judgment and the only thing that is left for him to do is to go to the settlement court and submit the decision of the trial court that has been entere d / that has become final and executory. The payment of the claim supported by a final and executory judgment will take place after the expiration of this statu te of non-claims. In other words, a claim that is supported by a final and execu tory judgment will be treated just like any other claim. It does not enjoy any p reference insofar as the settlement court is concerned. But there is another sit uation contemplated in rule 39, that is when the defendant has died, in rule 39, I think in section 7, in an award for money rendered by a court, if the defenda nt dies after the judgment has been entered and after properties have been levie d upon, the sale of the properties levied upon can continue even if the defendan t has died in the meantime. So this is a very unusual situation. The defendant h as died, there is a judgment against him and there is already a levy on properti es of the deceased defendant. The levy will continue and the properties levied u pon can be sold at public auction. This should be treated as an exception to the rule that money claims supported by a judgment cannot be enforced against the e xecutor or administrator under the provisions of rule 39. Going back to the statute of non-claims. The claims referred to in the stat ute are pure money claims arising from a contract, express or implied. In other words, these claims do not include claims for the recovery of personal or real p roperty. They do not include claims for damages arising from tort. In other word s, an action may be commenced against an executor or administrator for recovery of title (accion reinvindicatoria/replevin). They could be commenced against an executor or administrator. But an action to recover an unpaid loan cannot be ins tituted against an executor or administrator. The remedy o f the money claimant is simply to file a claim before the settlement court. In one case where the set tlement court was a RTC, the claimant submitted a claim for the recovery of an u npaid load of P200,000. What the administrator did was to ask the court to dismi ss the money claim because the amount was not within the jurisdiction of RTC, gi ven the provisions of BP129. The court said, the conduct of the administrator wa s not well taken. All money claims submitted to the settlement court must be ent ertained by the settlement court regardless of the amount involved. So even if t he amount of the claim is only P200,000 as long as it is a money claim, the RTC would have jurisdiction to entertain the money claim. So we do not apply the pro visions of BP129 when it comes to the determination of whether or not a settleme nt court has jurisdiction over certain money claims. Even if the money claim is below the jurisdictional amount given to a RTC in BP129, the settlement court st ill has jurisdiction to entertain the money claim. A money claim before the settlement court is not commenced with the filing of a complaint. In other words, a money claim does not envision a situation wher

e there is a complaint filed by the creditor against the executor or administrat or. There is no complaint / pleadings filed. All that the claimant is required t o submit to the court is an affidavit saying that he has a claim against the est ate and in that affidavit he will annex the supporting papers. So this is not an independent action for the recovery of the claim. It is just in the form of an affidavit. Because this is not a form of an action as contemplated in civil acti ons, the executor or administrator may or may not file an answer. The executor m ay not contest the claim. Once a claim is submitted to a settlement court, the e xecutor is given the discretion whether or not in contest the claim. So if the a dministrator feels that the claim is genuine, then all that he needs to do is to tell the court that the claim is genuine. But if he feels that the claim is not genuine, then the administrator should contest the claim. If there is a contest of that claim, then there will be a trial to be conducted by the settlement cou rt to determine whether or not that claim submitted by the creditor is valid. In the trial of contested money claims, the court is not required to sit as the ju dge during the trial. This is one instance where the court is given the discreti on to appoint a commissioner for the hearing contested claims. Once a claim is a djudicated by the court, that adjudication again becomes a final order. Under th e last rule, that is another appealable order. So you will appreciate that if in a settlement there are 20 money claimants and the court has already adjudicated on these money claims and the administrator or the claimant feels that he has b een aggrieved, there can always be an appeal from this order concerning conteste d claims. So it is very possible that there will be 20 appeals on this contested claim during the settlement proceedings. And while there are appeals going on t his contested claims, it is not possible for the administrator or executor to di stribute the estate among the heirs because the principal purpose of settlement payment first of the creditors ahead of is always the liquidation of the estate the heirs of the decedent. Because the executor or administrator is given the di scretion to contest or not to contest a claim, there is a strong possibility tha t the administrator might collude with the claimant. A claim is filed and becaus e of prior understanding between the administrator and the claimant, the adminis trator will simply tell the court, this claim is genuine and should be approved by the court. Do the heirs have any recourse at all? YES, if the administrator d ecides not to contest a particular claim, the heirs could submit their own conte st to this claim. This is a remedy to check the possibility that an executor or administrator may have abused the authority given to him by the rules. In some wills, the testator usually tells the heirs that he has left some i ndebtedness to some particular individuals or corporations. So the testator coul d state in the will, I owe so much to PNB / to this particular person. So in the will itself, there could be an acknowledgement by the testator that he has left some indebtedness. Should the creditors whose accounts are recognized in the wi ll still submit their claim within the statute of non-claims? YES, the recogniti on by the testator existence and validity of certain accounts will not be an exc use for these creditors not to submit their claims within the period provided by law. In the ex. PNB should still submit its claim within the statute of non-cla im. In one case, the validity of this provision of the Rules of Court, the stat ute of non-claim, was challenged. The argument ran like this: Prescription is ne ver procedural. Prescription is always a matter of substantive law that is why i n the Civil Code there is a particular chapter on prescription of actions and no w we meet a situation where the Rules of Court embodies a provision for prescrip tion of actions, that is the statute on non-claims, within a period of not less than 6 or more than 12 months from the date of publication. So that according to t his particular creditor, my claim prescribes in 10 years because it is supporte d by a written document promissory note but under the Rules of Court, I am requi red to submit my claim within a period of not more than 12 months otherwise my c laim is barred. So there is obviously conflict between the provisions of the Civ il Code on prescription and provisions of the Rules of Court on non-claim; and t he Civil Code should prevail because prescription is a matter of substantive law and not a matter of procedure. The Supreme Court said that it is true that presc

ription is a matter of substantive law but the provisions of the Rules of Court pertaining to the statute of non-claim is substantive because it is just a repro duction of an old provision in the Code of Civil Procedure. The Code of Civil Pr ocedure was substantive law that is before the Rules of Court took effect. So th is is not really a creation of the Supreme Court by itself alone. It is just a r eproduction of an old substantive law which has not yet been repealed by the Civ il Code. So the Supreme Court said there is really no conflict between the Civil Code and this provision, and the provision of the Rules of Court should be take n as an exception to the rules on prescription contained in the Civil Code. So t he statute of non-claims is substantive but it does not mean to say that it is a creation of the Supreme Court. There are creditors who are not covered by the provisions of the statute on non-claims and they are expressly found in the rules. These are creditors who h old collateral or a mortgage over properties of the decedent. We are referring h ere to mortgages contracted by the decedent during his lifetime. The rule is dif ferent with respect to mortgages that are contracted by the executor or administ rator with the permission of the court. The mortgages referred to in Rule 86 are mortgages that were contracted by the decedent during his lifetime and which co ntinue to encumber his properties after his death. So if the decedent during his lifetime obtained a loan from PNB secured by a mortgage over his properties, un der the rules, PNB need not file a claim against the estate within the period pr ovided for in the statute of non-claim. PNB is given 3 options under the rules. PNB can abandon the mortgage and consider its loan as an unsecured loan. In whic h case, PNB should file a claim against the state, or the PNB can simply rely on its mortgage foreclose the mortgage and if there is any deficiency, PNB can fil e a claim with respect to the deficiency. And the 3rd option is that PNB will ju st rely absolutely on the collateral that it holds, in which case it does not ha ve to participate in the settlement proceedings. One of the questions raised is the effect of the death of the decedent upon a mortgage contracted by him during his lifetime in the event that in that deed of mortgage, there is a special pow er of attorney given to the mortgage to foreclose the mortgage. Yesterday we had the occasion to state that the mortgages can foreclose a mortgage extra-judicia lly if he is so empowered in the deed of mortgage. So if the deed of mortgage co ntains a provision saying that the mortgagee can extra-judicially foreclose the mortgage, then that is a valid stipulation. That is in effect a contract of agen cy where the mortgagor empowers the mortgagee to sell the property in the event that the principal obligation is defaulted. In our situation now, the mortgagor has died. So in some cases, the executor or administrator has raised this questi on. In the Civil Code, one of the causes for the extinguishment of an agency is the death of the principal or the agent. In a mortgage relationship, the mortgag or will be the principal and the mortgagee is the agent. But if the mortgagor-pr incipal dies, will it not extinguish the agency constituted in that mortgage? Ac cording to the Supreme Court, if the decedent has died and in a contract of mort gagee that is previously contracted, there is a special power of attorney that i s given to the mortgagee to foreclose, that special power of attorney is not ext inguished by death. That power of attorney continuously exists. The reason given by the court is that the agency is that the agency in the form of authority giv en to the mortgagee to foreclose extra-judicially is an agency that is coupled w ith an interest. It is not affected/extinguished by the death of the principal. It is only the agent who is given the prerogative of canceling the power of atto rney. So if the mortgagee (ex. The PNB) decided to foreclose extra-judicially, n otwithstanding the death of the mortgagor; it can do so by virtue of the power o f attorney. The statute of non-claims is the presentation before the settlement court o f contingent claims against the estate. The rules are clear in saying that money claims, whether they are contingent or absolute must be presented within the pe riod otherwise they are barred. But since these claims are contingent, it means to say that the liability of the estate is NOT certain. According to the rules e ven if the claim is contingent, it could be approved by the court but the paymen t of this claim will depend on whether this claim will later on become absolute

and certain. If this claim becomes certain later on, then the executor or admini strator will have to retain a part of the estate for the payment of this conting ent claim. If the executor is ordered by the court to distribute the estate notw ithstanding the fact that this contingent has not matured or has not become abso lute, then the distributes of the properties of the deceased could be held perso nally liable up to the limit of their share in the estate in the payment of this contingent claim. But what is important for the order of a contingent claim is for this order to present the claim within the period fixed in Rule 86, within t he period of the statute of non-claim. It is the duty of the executor or administration after all these claims has been filed, to raise money for the payment of the obligations. And in order rai se money to liquidate these accounts, the executor or administrator could ask fr om the court for authority to sell or encumber properties of the estate. The exe cutor under the rules can sell personal properties. With respect to real propert ies, he can sell or encumber or mortgage real properties but court decisions are to the effect that these provisions should not be interpreted strictly. The set tlement court has the absolute discretion to authorize the sale or mortgage of b oth real and personal properties as long as the purpose for the conveyance or di sposition of these properties is to raise money to pay off the obligations of th e estate. Assuming that the obligations of the estate have been paid and there are as sets that are left, the remaining assets will have to be distributed among the h eirs of the estate. In the distribution of the shares of the heirs, the court wi ll have the authority to determine who the heirs are that is part of the settlem ent proceeding. So the determination of who the heirs are is within the competen ce of the settlement court. The determination of an heir by the settlement court will also constitute a final order and therefore it is also appealable. In the distribution of the shares of the heirs, the usual procedure that is followed by the court is for the court to ask the heirs to enter voluntarily in to a project of partition. Project of partition is submitted to the court and is approved by the court and the distribution is made according to that project of partition. But if the heirs could not agree among themselves as to the manner a s to how the estate will be distributed, the settlement court again has enough d iscretion. It is competent to determine the manner by which the shares are going to be distributed. If all the heirs have gotten their respective distributive shares then the court will issue what is known as an order of closure. The order of closure mark s the end of the settlement proceedings. In some cases, however, after the order of closure has been entered, some p ersons eventually appear claiming that they are heirs of the estate and they hav e been deprived of their respective shares. Or in some instances, properties are discovered which belong to the estate and which were not included in the invent ory and therefore these properties were not distributed among the heirs. But tak e not that these incidents arise after the order of closure has been entered, it has become final and executory. Do we apply the principle of res judicata, that it is no longer possible to alter the order of closure? The remedy allowed by t he rules in these instances is for the heir or the interested party to move for the reopening of the case. Reopening of a settlement proceeding is available eve n if the order of closure (order terminating the case) has been entered. Even if it has become final and executory. Reopening of the settlement proceeding is no t unique to settlement proceeding. It is not really a new remedy. Reopening of a case is even available in criminal cases. If you go through your criminal proce dure, reopening of a criminal case is allowed. The only condition is that the reopening must be done before the judgment of conviction becomes final. In a c ivil case, reopening of a case is also a recognized remedy that the only differe nce between the reopening in settlement proceeding and the reopening in a civil case is that in a civil case, the reopening as a remedy is available only after trial has ended and the court renders judgment. So, in a settlement proceeding, reopening could take place even after the proceedings have been terminated, eve n after the closure order issued by the court has been entered.

What is the reason why the court allows the settlement proceeding to be reo pened even after the order of closure has become final and executory? The reaso n proceeds from our principle given awhile ago that there should only be one cou rt that should handle the settlement proceeding. If we allow court to entertain , let us say, petition to allow the closure order that will give another court o pportunity to overrule or change orders that have been previously issued by the settlement court. So we stick to this principle that only one court should be c oncerned with the settlement proceedings and even after this court has already t erminated the proceeding. Even after its orders have been entered, it is still g iven authority to reopen the case so that the questions concerning distribution of shares, properties that may have been discovered after termination may be set tled in one and the same proceeding. Before the order of closure is issued by the court, usually, the administra tor will submit a final accounting. And in this final accounting, the administr ator can seek the approval of the court, for the payment of administration expen ses. Administration expenses could include fees for the lawyer retained by the executor. The Supreme Court said that if the executor himself is a lawyer, he w ill not be allowed to charge attorney s fees for his services rendered as a lawyer and as an administrator or executor. But if the executor retains, the services of the lawyers to assist him in the settlement proceeding, the fees paid to thi s lawyer will be considered as a part of administration expenses. The same is t rue with respect to other professionals, like an accountant. The executor may n eed the services of an accountant in the preparation of a final accounting. The fees for this accountant will be considered as expenses of administration. The last part of settlement proceedings pertain to escheat proceedings, whi ch is not really an integral part of settlement of estate of deceased persons. E scheat proceedings could be independent of a settlement proceeding. I suggest th at you also read escheat because last year the examiner gave questions concernin g escheat and reversion proceedings. Escheat may or may not be a part of the set tlement proceeding. The rules say that if a person dies intestate and there are no heirs of the estate of the deceased person, the Solicitor-General could file a petition for the escheat of the properties of the decedent. Meaning to say tha t the properties of the decedent will go to the Republic of the Philippines. Is this not a manifestation of greed on the part of the Republic of the Philippines ? Why should the Republic of the Philippines be concerned with acquiring propert ies of a deceased person? This is not really a manifestation of greed on the par t of the Republic of the Philippines. This is just an implementation of the Civi l Code provision that the Republic of the Philippines is always an heir of any d eceased person who dies without a will and without a heir. It is embodied in the Civil Code that the State is an heir of any deceased person. It does not mean to say however that escheat could take place only in insta nces where a person dies without a will and without heirs. Even if there is a wi ll but that will has not been admitted to probate because defect in its form, th e law will consider that the deceased has died intestate. If there are no heirs, then the same proceeding could be resorted to by the Solicitor General. Will there be escheat proceedings even if the owner of the property has not died? Yes, in some special laws like the Unclaimed Balances Act, escheat procee dings could prosper as long as the conditions imposed by this law are met. The U nclaimed Balances Act refers to a situation where bank accounts become dormant f or a period of 10 years. These bank accounts, if they become dormant after a per iod of 10 years, that is there is no movement at all (no deposit, no withdrawal) , the Unclaimed Balances Law says that the government may confiscate/escheat the se bank accounts. The proceeding to be followed by the State is for the Solicito r General to file escheat proceedings so that these funds which have become dorm ant may be turned over to the Republic of the Philippines. In one case which assails the constitutionality of the Unclaimed Balances L aw, the Supreme Court ruled that the Unclaimed Balances Law is founded on the po lice power of the state. In other words, it is not an expropriation proceeding. It is inherent as part of the police power of the state to take over bank deposi ts which have become dormant for at least 10 years.

There could be other escheat or reversion proceedings which are recognized in the Constitution or in other statutes. Acquisition of property by aliens if p rohibited by law or Constitution could be reverted to the State by virtue of thi s escheat or reversion proceeding. When it comes to escheat of properties of deceased persons, there is also a protection given by law to the heirs who may have deprived of their share in th e estate. If it turn out that the deceased may have left some heirs who were not aware of the death and therefore were not able to insist that they be given the share in the intestate estate, the law gives them a period of 5 years within wh ich to make a claim for the return of the properties that have been escheated in favor of the government. You will also notice that escheat as contemplated in the rules is a proceed ing in rem. There is a requirement of publication just like in settlement procee dings. But what is peculiar is that even if after the judgment on escheat has be en entered, an interested person or an heir can ask for the reopening or the ret urn of the properties of the estate within a period of 5 years, form the entry o f that order or decision of escheat. Guardianship. The next special proceeding is guardianship. Well, in guardia nship, you should always bear in mind that a guardianship proceeding is now the exclusive term of family courts. We now have family courts and under the law cre ating family courts, the family courts exercise exclusive and original jurisdict ion over petitions for guardianship. In fact all family related cases are exclus ively cognizable by family courts in the exercise of their original jurisdiction . The guardianship contemplated in special proceedings is general guardianship, which could be guardianship over the person or guardianship over properties, tha t s over the estate or both guardianship over the person of the ward and the prope rties of the ward. In other words, the court can appoint a guardian over the per son of a ward and appoint another guardian over the properties of the ward. So t here could be 2 guardians appointed by the same guardianship court. Can this sam e order be issued in a settlement proceeding, meaning to say can the court appoi nt administrators of the same estate? Yes, there could be more than one executor or administrator in a settlement proceeding. These matters are left to the disc retion of the settlement court. So the guardianship that is not covered by this proceeding as a special pro ceeding is the appointment of what we call guardian ad litem. The appointment of the guardian ad litem is not covered by this proceeding on general guardianship . A guardian ad litem is appointed by a court before which any action is pending , where on of the parties is a minor. Thus, if a complaint for recovery of prope rty (accion reinvindicatoria) is filed by the plaintiff against a defendant who is a minor and this case is pending before an inferior court because the value o f the property does not go beyond P20, 000 or P50, 000 as the case may be. This inferior court although it is not a family court is empowered to appoint guardia n ad litem. The appointment of a guardian that is exclusively given to a family court is the appointment of a general guardian not the appointment of a guardian ad litem, which is inherent in any court before which a civil action is pending as long as one of the parties is a minor who needs a guardian ad litem. Just like the executor or administrator, the guardian is an officer of the court. He also files a bond and then he is required to submit an inventory of th e properties of the ward, an accounting of the properties under his care and man agement. Just like an executor or administrator, the guardian can also sell; dis pose of mortgage the properties of the ward as long as these acts are done alway s with the approval of the guardianship court. But you will notice that when it comes to sale or conveyance by a guardian, there is a marked difference between an authority given by a settlement court to an administrator who is authorized t o sell or mortgage properties of the estate. When an executor or administrator i s given authority to sell or mortgage properties of the estate, there is no time limit given for the sale or encumbrance of these properties. So the sale or mor tgage of the property could take place years after the authorization is given by the settlement court. In the case of the guardians, if a guardian is given auth ority to sell a property of the ward that is, with prior approval of the court,

that authority will become ineffective after a period of one year. So that if au thority given to the guardian to sell a property of the ward, he must do so with in a period of one year, otherwise his authority ceases to be effective. He must ask the court for the renewal of that authority, unlike in the case of executor or administrator. The same principles that govern an executor or administrator also govern a guardian, insofar as the ward and the properties of the ward are concerned. Thei r actuations should always be with prior approval of the court. So if the execut or or administrator sells the property of the estate without prior authorization from the court, the same is null and void. If the guardian sells the property o f the ward without prior authorization from the guardian court, the same will al so be null and void. Trust. A trust also occupies the same office as a guardian or as an executo r or administrator. A trustee occupies a position of confidence. The substantive provisions on trust, of course, are contained in the Civil Code. So what we fin d in the Rules of Court are the procedural principles governing the enforcement of a trust. In substantive law, a trust could be a living trust, or it could be a testamentary trust. A trust that is envisioned in the Rules of Court is a test amentary trust. It could also be a living trust or a contractual trust. The diff erence between an executor or administrator of an estate and a guardian of a war d from the trustee of a trust is that a trust acquires title to the property hel d in trust. An executor or administrator does not get title to the property unde r his administration. A guardian also does not get title to the property under h is care but a trustee that is, of an express trust either in a living trust or t estamentary, will acquire title to the property under his care. So insofar as th ird persons are concerned, the trustee is the legal owner of the property held i n trust. It is in this relationship where we meet the terms beneficial owner and legal owner. The trustee holds legal title to the property held in trust while th e beneficiary holds beneficial title to the property. In testamentary trust, as contemplated in the Rules, the trust is created in a will. After the settlement proceedings are finished and the property that is given in trust is not delivered to a creditor for the payment of the indebted ness of the decedent, then it is the duty of the executor or administrator to fo llow the provisions of the will creating the trust. So, it is the duty of execut or or administrator to ask the settlement court to go ahead with the appointment of a trustee for this testamentary trust. In that sense, a testamentary trust c ould be considered as a continuation of the settlement proceeding. But the prope rty will now be transferred to the name of the trustee. Unlike in the case of an executor or administrator, a trust could also be contractual in character and t he appointment of the trustee does not need intervention of the court. The appoi ntment of the trustee could be had in the deed of trust. A good example of contr actual trust where a trustee is appointed without intervention by the court is t he trust that exists in the cemeteries [Loyola Memorial Park, Manila Memorial Pa rk]. This is a contractual trust. There is a trustee named in the deed of trust who takes care of the cemetery, the private cemetery. The funds are given by the buyers of the lot. This is an example of a trust contractual in character where the appointment of the trustee is not though court intervention. In other words , the appointment of a trustee could be had through court intervention. It could be had purely by reason of an agreement between the trustor and the trustee, an d in some instances, by the beneficiary. Adoption and Custody of Minors. With respect to this proceeding, adoption a nd custody of minors, if you are relying solely on what the Rules of Court provi de, you could be in trouble because most of the provisions of the Rules of Court on adoption and custody of minors are now embodied in two laws on adoption and these laws are the Domestic Adoption Decree and the Inter-country Adoption Act. So I suggest that don t rely on the contents of the Rules of Court. You should rel y more on the laws that we have just mentioned. As the title of the proceeding i n the case, this case generally covers only minors. It is in exceptional circums tances that there could be an adoption of a person who is already of age. And th en another change that was introduced by these statutes is that there is a provi

sional remedy now recognized in relation to this proceeding. This provisional re medy is temporary custody of children. So a petition there could be filed and in that petition there could be a prayer for temporary custody of children as a pr ovisional remedy. There could be some confusion between a petition for guardianship and petit ion for adoption. There are 3 marked difference between these two. The first is with regard to the venue of these petitions. The venue for a petition for guardi anship is the residence of the minor or the incompetent while in adoption, the v enue is the place of residence of the adopter (the petitioner in a petition for adoption). With respect to the requirements for publication in guardianship ther e is no such requirement for publication. Only a requirement for the giving of n otice to the parties. But in adoption, there is a requirement for publication in order to enable the court to acquire jurisdiction. And the last important disti nction between these two proceedings is that in guardianship the party sought to be placed in guardianship is not necessarily a minor. He could be a person of a ge as long as he is incompetent. But in adoption generally, the proceedings cove r only a minor. It is only in the exceptional situations where our law allows a person who is already of age to be adopted. Since there is a requirement for publication which must be strictly complie d with according to the court, in the sense that in the order to be published or at least in the caption of the case, the complete name of the person to be adop ted must be specified, the complete and correct name of the person sought to be adopted. That is the name contained in the Office of Civil Registrar. Otherwise, the court will not acquire over the petition for adoption. In the past, laws of adoption were interpreted to mean that these statutes were for the benefit of the adopter that is in order to provide the adopter with a sense of fulfillment if he is going to be given an adopted child. But if you are going to read the Domestic Adoption Act and Inter-country Adoption Act, the trend seems to be that every interpretation of these laws should favor the adopt ed, the person sought to be adopted. So the Supreme Court has given the rule tha t procedural laws should not be strictly applied and interpreted as long as the interest of the adopted are well protected. So that is now the policy of the sta te concerning adoption proceeding. Do we allow adoption that is non-judicial in character that is we allow ado ption even if there are no court proceedings at all? Yes, under the Inter-countr y Adoption Act, adoption may be authorized / decreed by the court. So adoption m ay be judicial or it may be non-judicial. If it is judicial, the court that has exclusive original jurisdiction will of course be the family related case. The c ourt that has given the decree of adoption is also the court that has authority to revoke or resend that decree of adoption is also the court that has authority to revoke or resend that decree. In some cases, the proceedings for the revocat ion of adoption are considered as a continuation of the adoption case. But in ot her cases, the Supreme Court said that there may be an independent petition for the revocation of a decree of adoption. But this does not seem to be important a nymore because the court, the family court, has the authority to revoke or set a side a decree of adoption that has been previously given so I suggest again that you read the provisions of the Inter-country Adoption Act and the Domestic Adop tion Act because these laws contain both substantive and procedural rules that g overn the flow of an adoption case. So I leave that to you. Habeas Corpus. The more important special proceeding is of course habeas co rpus, proceedings for hospitalization of insane persons. There is not much to re ad except that you might be asked, are the proceedings for the hospitalization o f insane persons irrelevant considering that an insane person is also covered by guardianship? The definition of an incompetent in the Rules of Court covers the person who is of unsound mind. So if a person is of unsound mind, should he not be placed under guardianship? Why should he still be the subject of a proceedin g for the hospitalization of an insane person? In seems that when the person of unsound mind has properties, everybody will be interested in making him as a war d. So guardianship proceeding will ensue. But if the insane person is the one wh om we meet in the streets loitering around, nobody will be interested in placing

him under guardianship. The person who has the burden of filing this petition w ill be a government official the Secretary of Health for instance. So this proce eding for the hospitalization of insane person is more for the protection of the community so that the insane person will not be loitering around a locality. Bu t if again the person of unsound mind is wealthy, you can be sure that there wil l be a petition to place this insane person under guardianship. It will be diffe rent from the proceeding for the hospitalization of an insane person. In one class, in special proceedings as a course in law, this question was propounded. In a petition for habeas corpus that is filed on behalf of the detai nee, the detainee formally manifested before the court that he is not really und er illegal detention. That, if there is any restraint upon him, it is voluntaril y on his part which was not exactly accurate because he was really under unlawfu l detention. The consequence of that manifestation is that the petition for habe as corpus will be mooted; it will become academic because there is really no ill egal detention or involuntary restraint. Now the question propounded next was, w hat is the remedy of the petitioner who filed the petition for habeas corpus on behalf of the detainee? The amusing answer given was the petitioner should insti tute another petition for the hospitalization of an insane person, of course add ressed to the detainee. That s a good answer, isn t it? Very amusing. You should always bear in mind that the jurisdiction over these petitions i s given to all courts in our system. The Supreme Court, the Court of Appeals, a RTC, and even inferior courts have authority to hear petitions for habeas corpus . In the case of inferior courts, they are given interlocutory jurisdiction unde r BP 129, to hear a petition for habeas corpus. That is if there is a certificat ion that all the judges of the RTC in that district are absent. Under BP129, an inferior court has an exercise what is known as interlocutory jurisdiction over a petition for habeas corpus. Unlike in certiorari, prohibition or mandamus which is equally cognizable b y the Supreme Court, the Court of Appeals and RTC, this concurrence in jurisdict ion is limited by what we call as the principle of hierarchy of courts. Habeas c orpus is also cognizable by all these courts the Supreme Court, the Court of App eals and the RTC but we do not observe the principle of hierarchy of courts when it comes to applications for writ of habeas corpus. The writ extends to all cas es where the detention is illegal or there is unlawful restraint. But it is a se ttled principle in habeas corpus that the illegality of the detention must be re ckoned as of the date of the filing of the application or of the petition. Meani ng to say that even if the detention is illegal at the start but if at the time of the filing of the petition, the detention has become lawful, the petition for habeas corpus will be denied. So the illegality of the detention must be reckon ed as of the date of the filing of the petition. These incidents are usual. For instance, immigration will detain an alien without any valid reason. The detenti on is not lawful of course. Let us say that the alien is kept in custody for 3 m onths. Then he consults a lawyer and the lawyer files a petition for writ of hab eas corpus. But if at the time of the filing of the petition, there is already a n order for the deportation of this alien. At the time of the filing of the peti tion, the detention has become lawful. So that will justify the denial of applic ation for habeas corpus. Also in criminal cases where the arrest in unlawful fro m the very beginning. Even if the arrest is unlawful but at the time the petitio n for habeas corpus is file there is already a warrant for his commitment, then the petition for habeas corpus will be denied. It will not make sense anymore be cause at the time of the filing of the petition, the detention is already lawful . As we said a while ago, if the detainee himself tells the court that he is not being illegally detained, that he has voluntarily submitted himself to this unlawful restraint that will render the petition moot and academic. That is the general rule concerning habeas corpus. If the detention is illegal at the time of the filing of petition but after the filing the detainee is already released from custody that will also render the petition moot and academic because the petition has already achieved the pur pose of the filing of the petition.

In habeas corpus cases, we should be able to distinguish the writ of habeas corpus itself and what is called the preliminary citation. A preliminary citati on is issued by the court when it does not appear manifest or clear in the appli cation that the detention is illegal. So if there doubt arising from the content s of the application whether the detention is unlawful or illegal, the court wil l not issue right away a writ of habeas corpus. The court will simply issue what is called as a preliminary citation. A preliminary citation is an order issued by the court directing the respondent to show cause why the writ of habeas corpu s will not be issued. So it is preliminary to the issuance of a writ of habeas c orpus in the event that the petitioner is able to show that the detention is ill egal. I suppose that you are well read in relation to the substantive laws concer ning habeas corpus like the constitution. So I suggest that you read once more t he case of Villavicencio vs. Lukban which you must have read in Constitutional L aw. And the case of Moncupa vs. Enrile. These two cases give us the basic princi ples concerning habeas corpus not from a procedural point of view but from the s ubstantive point of view. If you will recall in that case of Moncupa, after the application for habeas corpus was filed, the soldiers in custody of the detainee released him but under certain conditions. One of the conditions was that the d etainee will not be allowed to transfer his residence without giving notice to t he armed forces. That he will not be allowed heed interviews to the press. Accor ding to the Supreme Court, that is part of restraint that is covered by habeas c orpus. In other words, restraint purposes of habeas corpus do not only mean phys ical restraint. It could also extend to psychological or moral restraint. But on a procedural point of view, habeas corpus is described by court deci sions as a proceeding that is similar to an in rem proceeding although the court did not say that it is actually in rem. It is similar to an in rem proceeding. The court could not consider habeas corpus as a genuine in rem action because in an application for writ of habeas corpus, there is a petitioner and there is al ways a respondent unlike in the other special proceedings that we have taken up like settlement proceedings, adoption, guardianship proceedings. In all these pr oceedings, there is only a petitioner and there is no particular respondent who is impleaded. But in a petition for habeas corpus, there is a petitioner and the re is a respondent. That is the justification why the Supreme Court could not sa y directly a petition for habeas corpus is really an in rem proceeding. Besides in petition for habeas corpus unlike in other special proceedings, there is no r equirement for prior publication. It s just like a civil case where the plaintiff sues the defendant and then the defendant is required to file an answer. In habe as corpus proceedings, the respondent is required also to answer and this answer is called in return in habeas corpus. If the return is made by the public offic ial and in that return this is required to be under oath, which is required to b e verified. He must explain to the court the reason for the detention; he must g ive to the court copies of the documents authorizing the detention. If the publi c officer complies with these requirements, his return is presumed to be an evid ence of the legality of the detention. But if the return is made by a private in dividual, the allegations contained in the return must be proven by this private individual. In one case in the past, after a petition for habeas corpus was fil ed in the court the respondents submitted their return to the court and in that return the respondents told the court: we have already released the detainee and therefore the petition has become moot and academic. What the representatives o f the detainee did was to tell the court: it is not true that the detainee has b een released found. So the issue was who has the burden to prove to the court th at there was indeed a release of the detainee. The Supreme Court said that if th e petitioners denied that the detainee has been released, that is contradictory to what the respondents have submitted to the court, it is the duty / burden of the respondents to prove that there has been an actual release. This will be sim ilar to a situation where the defendant to prove the affirmative allegations in the return. If the court eventually issues the writ of habeas corpus, it does not mean to say that the detainee will be released automatically. The respondent will be

given a chance to assail the validity of this order. And the remedy to challenge a writ of habeas corpus issued by the court is to appeal from this order. And t his is where there is a conflict of court decisions. What is the period for an a ppeal in habeas corpus cases? If you are going to read and rely solely on BP 129 , the period for appeal in habeas corpus cases is placed at 48 hours. That is ex pressly provided in BP 129. But in the law amending BP 129, it is also stated th at in special proceedings and in civil actions which admit of multiple appeals, the period to appeal shall be 30 days. And habeas corpus is a part of special pr oceedings. So it seems that the period to appeal would really be 30 days if we r ely solely on this provision saying that in civil actions where multiple appeals is allowed and in special proceedings the period to appeal is 30 days. But in 1 case decided in 2000 by the Supreme Court (Tong Ching vs. Commissioner of Immig ration), the Court laid down a principle that the period to appeal in habeas cor pus proceedings is 15 days. So there is now confusion as to whether the period t o appeal is 48 hours, or 15 days, or 30 days. So if ever this matter comes out i n your bar examinations, I suggest that you give these conflict statements. This is still an unsettled issue with respect to the period to appeal in habeas corp us proceedings. But with the rest of special proceedings, we follow the provisio n that in special proceedings as well as in civil actions which admit of multipl e appeals, the period to appeal is 30 days. And the requirement of appeal is a n otice of appeal and a record on appeal. Change of Name. The next special proceeding is change of name under Rule 10 3, which should be taken up in relation with Rule 108 that is cancellation of en tries in the office of the local civil registrar. The Supreme has already settle d that the remedies provided in Rule 103 as well as in Rule 108 could be availed of in one and the same proceeding. The only requirement is that the procedural requirements in these two rules must be satisfied. Originally, before these deci sions of the Supreme Court came out; change of name was a procedure availed by a petitioner in order to cause a substantial change in his name. on the other han d, Rule 108 was the recourse available for change of clerical errors, correction of clerical errors or innocuous errors that are contained in the record of the local civil registrar. So, it was evident then that the procedure in 103 could n ot be summary. It was always adversarial in character and the procedure in 108 w as summary in character. But then comes this decision of the Supreme Court which said that even the proceedings in 108 could be adversarial in nature. It could involve substantial changes in the name of a person. So the Supreme Court out wi th this doctrine that when it comes to a change of name, both 103 and 108 could be availed or in one and the same proceedings as long as all the requirements on these 2 rules are met. What is the name of a person that could be the subject of the special proce eding for the change of name? in our country, it is allowed by our society for a person to have many names. We have baptismal names. We have names duly recorded in the office of the local civil registrar. For purposes of Rule 103, the name that could be changed, that s judicially under Rule 103 is the name that is writte n on the certificate of birth at the office of the local civil registrar. It doe s not pertain to the name that is contained in the baptismal certificate. And in our society also, we have adopted the Roman or Spanish style of giving a first name and a surname. So, all of us here have a 1st name as well as a surname. The Supreme Court has ruled that with respect to the 1st name or proper name, that is almost subject to the discretion of our parents. So if your name is Juan - th at is because that s the name given to you by your parents and your parents have a bsolute choice this name. but when it comes to the surname, it is the law which determines the surname that could be used by a person. So that he parents of a p erson do not have the freedom to give any surname to their children. The law req uires that the surname must be the surname of the legitimate father under our ci vil law. So, in our system, a person has a first name and a surname. For purpose s of Rule 103, a name that can be changed could either be the surname or the 1st name but the change must always be with sufficient justification. A person who desires to change his name cannot simply go to court and tell the court I want t o change my name. He has to give a good justification why he wants his name to b

e changed. And the law is quite strict when it comes to the requirements to be f ollowed for a petition for a change of name. The 1st requirement is the in the petition itself, in the caption of the pe tition and in the caption of the order to be published all the names must be cor rectly written. So the name of the person is registered, the name that will be a dopted in case the change is allowed and all the aliases should be embodied in t he petition for change of name. They should also appear in the order which is go ing to be published. Petition for change of name is another proceeding in rem. The best evidence that it is a proceeding in rem is that there is a requirement for publication. And unless there is such a publication of the correct name and the name sought t o be adopted and all the aliases, then the court will not acquire jurisdiction o ver the petition. Although there is no respondent since it is a proceeding in re m, the office of the Solicitor General should always be notified and it is pract ice of the Solicitor General always to oppose any petition for the change of nam e. There are only a few reasons that have been allowed by the Supreme Court fo r a person to change his name. One of these grounds is if the name is dishonorab le, or if the name is hard to write or pronounce. But if the only reason given f or the change of name is that it could subject the petitioner to derision or lau ghter whenever he uses the name, according to the Supreme Court that may not be enough justification for the change of name. If you are going to compare Rule 103 and Rule 108 although they could refer to the same issue that is the change of name, there are also marked differences between these two proceedings. In Rule 108, the petition for the correction mus t be filed in the locality where the office of the local civil registrar is loca ted while in rule 103, the petition must be filed in the place where the petitio ner has resided for at least 3 years. And then in Rule 108, the local civil regi strar must be impleaded as a defendant / respondent. So Rule 108 considers the l ocal civil registrar as an indispensable party. If he is not made an indispensab le party, then the court can deny the petition. The proceeding in both cases could be adversarial depending on the change t hat is sought in Rule 108. if the change is substantial, the proceeding must be adversarial. Meaning to say that there are parties who go to a formal trial and who will introduce evidence to demonstrate the truth of their allegations. Other wise the proceeding in Rule 108 could be summary in character. You should also t ake of that new law which authorizes an administrative change (for clerical erro rs) to be accomplished by the local civil registrar. We now have a law authorizi ng these changes if there is a plain clerical error contained in the records of the local civil registrar. But I understand that this is not usually resorted to by applicants although it is purely administrative because according to most ap plicants that I have confirmed with, it is more expensive to deal with the local civil registrar than to go to court under Rule 108. it seems that the fees bein g charged by the local civil registrar are going to be spent if they simply go t o court and resort to Rule 108 applying summary procedure. Nonetheless, we have now a statute authorizing non-judicial or administrative correction of clerical errors that are contained in documents under the control of the local civil regi strar. Absentees. The last special proceeding is absentees. The other special proc eedings mentioned in our rules are no longer in force. The constitution of the f amily home, they have been repealed by the provisions of the Family Code. There are effectively 3 proceedings contemplated in the rule on absentees. The 1st is the proceeding for the appointment of a representative. The 2nd proce eding is for the declaration of absence and the 3rd conceivable proceeding is th e settlement of the estate of the absent or presumably dead person. Under our Fa mily Code, there is now a petition for the declaration of presumptive death. But this is only for the purpose of allowing the spouse to remarry. For other purpo ses, that is not allowed. But if a person disappears and his whereabouts are unk nown during the 1st two years, what the court can do is to appoint a representat ive. That could be the subject of a petition for the appointment of a representa

tive. If a person does not turn out within this 2-year period or his whereabouts remain to be unknown or nobody appears and shows that he is the duly authorized representative of this party, then there could be a petition for the declaratio n of absence. If still the person does not appear, then the recourse of the heir s or the spouse or any person interested in his estate is to file a petition for the settlement of his estate. That is we return to settlement proceedings. Beca use that will be the proceeding that will make use of the presumptions contained in the Civil Code that a person is dead. Again there could be a petition to dec lare the person presumptively dead but only for a particular purpose. But for th e purpose of settlement of his estate, there is no need for the court order to d eclare the person presumptively dead. There is a presumption given in our laws, in the Code, that a person is presumed to be dead under certain circumstances. O nce these circumstances are apparent, the only way by which we could make use of the presumption is to file a proceeding for the settlement of his estate. Once the facts from which this presumption will arise are proven the court can apply this presumption of death and settle the estate accordingly. But if later on he appears, then the court will simply order a reversion of the properties of this person / party. But what is important to know in this matter of absence is that there is no need for a prior declaration of presumptive death for the purpose solely of set tling the estate of the absentee. An interested party, a kin or the surviving sp ouse, can immediately file a petition for the settlement of his estate on the ba sis of the presumption of death that is given by the Civil Code. Appeals. The last rule on special proceedings is about appeals. And again I wish to emphasize that the rules on appeal in special proceedings are different from the rules on appeal in civil cases except civil actions which admit of mul tiple appeals. In ordinary civil cases, the period to appeal is 15 days. There a re only 2 requirements to be satisfied, file a notice of appeal within the 15-da y period. But in special proceedings, the period is lengthened to 30 days. Aside from the payment of appellate court docket fee, the appellate must prepare a re cord on appeal which must be submitted to the court for approval. It is unlike a notice of appeal which is not required to be approved by the court. ?? ?? ?? ??

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