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BLESSED ARE THE HEARTS THAT BEND, THEY SHALL NEVER BE BROKEN St. Francis de Sales

SPECIAL CIVIL ACTION

* IN BP 129: RULE ON JURISDICTION:
- There are no deviations at all insofar as special civil actions are
concerned;
- Special Civil Actions (SCA) are also covered by the rule on jurisdiction
governing civil cases.
- The changes and deviations pertains SOLELY TO PROCEDURAL
MATTERS.
(MAST: Q: It seems that the general rule is that the rule on jurisdiction
provided in the Rules of Court applies. I am just curious of the
annotation of Regalado on the fact that Rule 64 is cognizable only by
the SC and not concurrent with the CA and RTC, it being just a petition
in the nature of Rule 65 which in BP 129 is concurrent. Does this mean
that a mere procedural rule can alter a substantive law providing for
the jurisdiction of courts?)
* General Rule: The ordinary rules of procedure also apply to special
civil actions.
- Exception: There are some deviations from the rules that apply
solely to special civil actions;
- These deviations from the Rules apply individually to each and every
special civil action that is described in the Rules of Court;
-Nota Bene (Note very well):
SO, ONE HAS TO INQUIRE INTO EACH AND EVERY SCA AND
DETERMINE THE FEATURE WHICH JUSTIFIES THEIR CLASSIFICATION AS
A SCA.
* Webster Dictionary defines special as something having a
particular purpose. Therefore, special civil actions being special have
always a procedural deviation.

RULE 62- INTERPLEADER

* ORDINARY CIVIL ACTION FEATURES (OCAF):
- There is a plaintiff and there are defendants;
- Commences with the filing of the complaint, which is the general rule
concerning all civil actions;
- Rule 16, motion to dismiss applies of course to all civil actions as long
as any of the grounds in Rule 16 is evident;
(MAST: Do we apply the rule on lack of prior barangay conciliation; or
arbitration when stipulated; or confrontation of family members as
grounds for dismissal? Do we also invoke the ground of lack of cause of
action or extinguishment of the obligation there being no cause of
action in the first place?);
- We also apply the rules on appeal.
* SPECIAL CIVIL ACTION FEATURES (SCAF):
1. Is one civil action where the plaintiff is given the prerogative not to
allege the cause of action (SEE Rule 2), because the plaintiff does not
have a right that has been violated by the defendants, or if he has a
right that right is not disputed by the defendant;
2. We NEED at least two defendants (MAST: reason: because of the
nature of this particular SCA which is to decide who is entitled to the
property or right between two or more defendants, thus according to
JARA: the plaintiff is COMPELLED BY LAW to implead as defendants all
the claimants to the property.)
3. In interpleader the defendant declared in default automatically loses
the case unlike the situation in Rule 9 on partial default (MAST: Note
that in that Rule particularly Section 3, the requirement is that there
should be a common cause of action against the defendants) where
there are two or more defendants impleaded in the same case:
generally a decision in favor of the answering defendant will also be
favorable to the non-answering defendant although the non-answering
defendant has been previously declared in default. (MAST: Is this
regardless of whether or not there is a common cause of action against
the defendant? There should be a common cause of action in partial
default contemplated under Rule 9. This situation is impossible in
interpleader since there is actually no cause of action in interpleader.
Inquiring further, let us say that there is a pair of defendant which

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claims to have a common right over a property against another pair
{meaning d1 and d2; d3 and d4} how will that be resolved if we file an
interpleader?);
NOTE:
Observe the procedural deviation in interpleader when the
parties are plaintiff vs defendant 1 and defendant 2; and compare this
with the case of plaintiff vs defendant 1 and defendant 2 in ordinary
civil action (SEE Rule 9 Sec 3 c). One will immediately see that in
interpleader, there is no such thing as partial default as contemplated
in ordinary civil action, aside from the fact that there is no common
cause of action against defendant 1 and defendant 2 in case of
interpleader. Moreover, since there is in fact no cause of action in
interpleader, it is impossible for them to share a common defense.
4. Aside from the grounds enumerated in Rule 16, there is another
ADDITIONAL ground in interpleader, the defendant in interpleader may
file a motion to dismiss founded on the IMPROPRIETY OF THE FILING OF
THE COMPLAINT FOR INTERPLEADER;
* MAST: REGALADO: Under Sec 5, each claimant shall file an answer
and serve a copy;
* The Supreme Court has emphasized that interpleader cannot be
availed of in an independent and separate complaint AFTER one of the
claimants has filed a complaint for the recovery of possession of the
property in the custody of the warehouseman. Although the Supreme
Court said that interpleader could be set-up as a counterclaim in the
answer;
NOTE:
If there is already an ordinary civil action against the
warehouseman, he cannot thereafter file a separate interpleader
action. This is because to do so would result to the dismissal of the
separate special civil action on the ground of absence of cause of
action or impropriety of the complaint for interpleader.
- There is nothing in the Rules which prohibits the filing of a
counterclaim against the original plaintiff and also against a stranger to
a case. All that the court will do is to issue a summons to the stranger
so that this stranger will be within the jurisdiction of the court in so far
as his person is concerned.(MAST: Rule 6 Sec 12)
(MAST: What if there is already an interpleader and one or both of the
complainants {defendants in the interpleader action} then decided to
file a separate and independent action for recovery of property can this
be done? How about setting up as counterclaim in the interpleader

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action the recovery of the possession of property, is that possible? The
only answer I can give is that in the first question, there will be litis
pendentia. The absence of cause of action will not prevent the
application of the rule. What is important is that in either case of
interpleader and the subsequent action for recovery of property, the
result will be the same and one will be res judicata on the other. There
is a possibility of conflicting decisions. As to the second question, I
believe that such is possible since anyway he may indeed be the true
owner and the warehouseman has improperly initiated the special civil
action.)
* With respect to jurisdiction it is settled that interpleader is one of the
SCAs which could be cognizable by an inferior court depending on the
value of the property involved. That is in accordance with BP 129.
(MASTER: Interpleader is obviously an action in personam.)
* SEE Warehouse Receipts Law;
* SEE Appendix of Forms: FORM 5: Answer with Counterclaim for
Interpleader:
This is the justification why counterclaim for interpleader is
possible. The appendix of forms is prepared by the Supreme Court
itself.
* In case of appeal we apply the ordinary rules.

RULE 63- DECLARATORY RELIEF AND OTHER SIMILAR REMEDIES

* There are 4 special civil actions in Rule 63:
1.
2.
3.
4.

Declaratory Relief
Quieting of title (Art. 476ff NCC)
Consolidation of ownership in case of sales (Art. 1607 NCC)
Reformation of instrument (Art. 1359ff NCC)

* It is not correct to assume that the actions covered by the phrase

other similar remedies are also covered by the procedure for
declaratory relief.
* The other similar remedies are not kinds of declaratory relief.
* THE OTHER SIMILAR REMEDIES, namely: quieting of title to real
property or remove clouds therefrom, consolidation of title, and
reformation of instrument. All of them need a CAUSE OF ACTION.
* OCAF:
* SCAF:
1. The court is given the prerogative to entertain or not to entertain
this petition if the court feels that the petition is not meritorious by
simply reading the allegations therein, the court has the authority to
dismiss the petition by refusing to entertain the petition UNLIKE in
ordinary civil actions; ( MAST: Review: summons, answer, motion to
dismiss, non-waivable defenses, rule on summary procedure)(MAST:
Can we say that the Rules on summary procedure, special civil actions
or special procedure? Summary Procedure consists partly of an
ordinary civil action, specifically those of actions governing recovery of
claims of 100k or 200k. It just happened that it is an ordinary civil
action which is summary in nature. Part of the scope of summary
procedure is a special civil action which is FEUD.);
2. There is no cause of action (basis: if you read the Rules it is essential
that the petition must be filed before there is a breach or a violation of
the law or ordinance or the will or contract involved SEE Sec 1);

3. Rule 39 on execution is not possible because what the court does

only in declaratory relief is to declare the rights and duties of the
parties in a contract in its judgment.
* We cannot expect the petitioner to pray for damages etc.
* Declaratory relief is not conjectural or anticipatory because the filing
of the petition for declaratory relief----because there is a threat of a
violation of a right even under a contract, or another instrument or a
law or ordinance.
* The purpose of declaratory relief is to stop a possible litigation.
* So the main purpose of the petitioner in declaratory relief is only for
the declaration of rights: of his rights and duties under the contract or
will; or any other instrument or a law or ordinance.
* If it is based on contract the party-defendant should be anyone of the
contracting parties, if it involves a law or ordinance, it should be the
public official who is in charge of executing the law or ordinance.
(MAST: So it seems that we call the one who filed as petitioner and the
one who should be impleaded as party-defendant? SEE Secs 2, 3 and
4)
* We still need a defendant in this special civil action SEE Sec 2.
* The actions covered by the phrase "other similar remedies" do not
follow the procedure for a petition for declaratory relief, the court is
duty bound to observe the procedure in ordinary civil actions. (SEE Sec
5)
* The court can outrightly dismiss the petition in declaratory relief.
(SEE Sec 5)
* Compare declaratory relief with interpleader with regard to the power
to outrightly dismiss or refuse to entertain. In interpleader, the court
cannot do this. (SEE Sec 4 Rule 62)
* The petition for declaratory relief is EXCLUSIVELY cognizable by the
RTC because the subject matter is incapable of pecuniary estimation.
(BP 129 Sec 19)
* The complaint for the quieting of title MAY NOT be exclusively
cognizable by the RTC. Under BP 129, actions involving title to or
possession of real property could be cognizable by both an inferior

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court or by a RTC depending upon the assessed value of the real
property.
* WARNING: If you are asked the jurisdiction over a petition for
declaratory relief AND other similar remedies, do not jump
IMMEDIATELY to the conclusion that these PETITIONS are cognizable by
the RTC.
(MAST: How about consolidation of ownership in case of sales and
reformation of instrument, where do we file them? I think in case of
consolidation of ownership and in case of reformation of instrument it
is clear that they are actions not capable of pecuniary estimation.)
RULE 65 - CERTIORARI, MANDAMUS AND PROHIBITION
SEE: A.M. NO. 07-7-12-SC
RE: Amendments to Rules 41, 45, 58 and 65
NOTE: MAST: THE IMPORTANT AMENDMENTS IN RULE 65
- Sec 4:
: The phrase in the old version The petition shall be filed in the
Supreme Court.. was omitted in the present amendment.
Purpose of the amendment: To further bolster the policy of the
Supreme Court of discouraging parties to directly resort to it. The
Supreme Court remains to have jurisdiction over Rule 65, however,
since it has authority over procedural matters it can regulate the direct
filing of petitions before it. It does not violate the Constitution because
our fundamental law gives the power to the SC to make amendments.
The operative word in the Constitution is as the law or the Rules may
provide.
: This paragraph was added to the former provision:
In election cases involving an act or an omission of a municipal or
regional trial court, the petition shall be filed exclusively with the
COMELEC, in aid of its appellate jurisdiction.
(MASTER: What do you mean by in aid of appellate jurisdiction? It
means that the decision in the main case must in the first place be
appealable to the appellate court or within its appellate jurisdiction.
Rule 65 is in aid meaning the grounds provided by the Rules are
present and the said exercise of appellate jurisdiction is not the speedy
remedy. Thus, when the main case is not appealable or if appealable,
the same is within the exclusive appellate jurisdiction of a certain
court, the petition could not be instituted for example with the
COMELEC as it would not thereby be acting in aid of its appellate
jurisdiction.)

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- Sec 7:
: A second paragraph was added:
The public respondent shall proceed with the principal case within ten
days from the filing of the petition for certiorari with a higher court or
tribunal, absent a TRO or a preliminary injunction, or upon its
expiration. Failure of the public respondent to proceed with the
principal case may be a ground for an administrative charge.
Purpose of amendment: I believe that this is to avoid the delay that a
petition for certiorari might cause on the pendency of the principal
case or proceeding in question.
The possible sanction on the judge, in some way, cushions the
severe penalties on the lawyer availing of the remedy and the risk he
takes when he avails of this remedy.
- Sec 8:
: An additional sentence was added to the second paragraph:
In such event, the court may award in favor of the respondent
treble costs solidarily against the petitioner and counsel, in addition to
subjecting the counsel to administrative sanctions under Rule 139 and
139-B of the Rules of Court.
: An additional third paragraph:
The Court may impose motu propio, based on res ipsa loquitur, other
disciplinary sanctions or measures on erring lawyers for patently
dilatory and unmeritorious petitions for certiorari.
: Purpose of amendment: It is obvious.
OTHER IMPORTANT AMENDMENTS
* RULE 45
Sec 1:
- The Court of Tax Appeals was included in the enumeration of
decisions of courts that can be elevated through petition for review on
certiorari;
- Another significant amendment is the express mention of the
applicability of provisional remedies. There are two ways to avail of
provisional remedies under the amendment:
1. The petition under Rule 45 may INCLUDE an application for a writ of
preliminary injunction or other provisional remedies; (MASTER: the
provisional remedy here is embodied in the petition itself)

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2. BY VERIFIED MOTION filed in the same action or proceeding at any
time DURING ITS PENDENCY;
* RULE 41:
- This ground was omitted from the former rule:
(a) An order denying a motion for new trial or reconsideration
Purpose of amendment: It appears that the ground was omitted for
the simple reason that it was redundant. If you will look at Rule 37 Sec
9, you can arrive at the conclusion that the omission did not make the
said omitted ground appealable. It remains to be NOT APPEALABLE. If
the intention was really to make it appealable, then the Revision
Committee should have also omitted Rule 37 Sec 9.
* RULE 58:
- There was an additional 5th paragraph:
The trial court, the CA, the Sandiganbayan or the Court of Tax Appeals
that issued a writ of preliminary injunction against a lower court, board,
officer or quasi-judicial agency shall decide the main case or petition
within six months from the issuance of the writ.
Purpose of the amendment: So that there will be no indefinite
suspension of the proceedings of the main case to the prejudice of the
parties.
DIFFERENCES: Rules 65, 45 and 64
I. Rules 64, 65 and 45 envisions different factual antecedents.
II.
* Rule 45 is a mode of appeal.
* Rule 64 is a mode for review from the decisions of the COA and
COMELEC. It is also a mode of review (MAST: like appeal) ALTHOUGH
the form and the requirements to be satisfied are those given in Rule
65.
(MAST: So it seems that Rule 64 is not strictly a special civil action? It is
still a special civil action, even if it is actually a mode of review. That
does not change the fact that it has many procedural deviations
characteristic of a special civil action.)
NOTE:
Rule 64 is a mode of review but the mechanism is Rule 65. The
period to appeal (MAST: which is 30 days) should always be followed,
even if the appellant has mistaken the period to be 60 days as in
certiorari, the court will outrightly dismiss the appeal.

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* Rule 65 is a special civil action.

III.
* The questions usually allowed under Rule 45 are questions of law not
necessarily related to jurisdiction of the court, AS LONG AS the
question involved is a question of law. (MAST: So it seems that when
the question is one of jurisdiction you can avail of either or both
remedies? One can only avail either remedies, this is because before
Rule 65 can be availed of there should be no plain, speedy or adequate
remedy in the ordinary course of law. Therefore ordinarily when there is
a question on jurisdiction we appeal, unless such order disposing the
question of jurisdiction is an interlocutory order or a final order without
prejudice, as the case may be.)
* NOTE: MEMORIZE the 11 instances where questions of law may be
raised in the SC.
* In Rule 65 (certiorari) the question that could be raised is ONLY a
question of jurisdiction. A question of jurisdiction is ALWAYS a question
of law.
IV.
* In Rule 45 it is expressly provided that the period could be extended
for another 30 days. SEE Sec 2; (MAST: Note the Fresh Period rule in
Neypes Case whenever there is a motion for new trial and
reconsideration)
* There is no mention in the Rules about the extension of the 60 day
period in Rule 65. (SEE recent amendment to Sec 4) ???
V.
* Generally, the availment of Rule 45 will stop the execution of the
order subject of the appeal. (MAST: Except execution pending appeal.
SEE Sec 2 Rule 39, and analyze Sec 1 Rule 39)
* In Rule 65 the filing of the petition does not stop the trial court from
going again with the case unless the court issues the writ of
preliminary injunction.
* So, while theoretically a petitioner is given the choice as to which
court will hear his petition for certiorari, this privilege is really delimited
by another principle contained in Rule 65, the principle of hierarchy of
courts. (SEE recent amendment to Sec 4)
* The purpose of the rule on Hierarchy of Courts is to discourage the

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filing of certiorari to SC (MASTER: SEE Sec 4, 2 nd paragraph as
amended that omitted the SC altogether, to implement the policy for
the petitioner to choose either RTC or CA)
* Note Sec 4 of Rule 65.
* The dismissal of the petition for violation of the principle of hierarchy
of courts will not prevent the petitioner from filing a similar petition
before the proper court.
* SCAF:
A. The court is given the authority to outrightly dismiss the petition just
like declaratory relief;
B. The court does not issue summons, what the court issues is an
ORDER TO COMMENT addressed to the respondents;
C. The period to comment is fixed in the Order.
D. There is no such thing as declaration of default, the court will just
continue hearing the petition and the court will simply render a
judgment based on the petition filed by the petitioner.
- this is because under Rule 65 there is usually no factual issues
involved, the issues refer to issues of jurisdiction; (MAST: What are the
possible instances when there can be issues of fact?)
E. The public respondent though impleaded is not allowed to defend
himself openly. The duty to defend the public respondent lies upon the
private respondent;
* The public respondent must be impleaded but only as a nominal
party.
* Certiorari, prohibition and mandamus are three DISTINCT AND
INDEPENDENT petitions.
* The introduction of Rule 41 together with Art VIII Sec 5 of the
Constitution greatly broadened the application of Rule 65 and now
covers also final orders not only interlocutory orders.
* So Rule 65 (certiorari) is no longer limited to challenging interlocutory
orders. Final orders and even judgments could be subject now of Rule
65, as could be gleaned from Rule 41 which enumerates the instances
when there could be no appeal.
(MAST: How about prohibition and mandamus, can they assail final

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orders, judgments? Yes of course as long as the requisites under Rule
65 Sec 2 and 3 are complied with in relation to Rule 41 as may be
appropriate. Rule 41 states the appropriate special civil action as
provided in Rule 65.)
* According to the SC: There could be an award of damages in
certiorari and prohibition even if there is no express mention in the
Rules like that in mandamus. Thus the award of damages in certiorari
and prohibition is not expressly provided by the Rules, it is given BY
VIRTUE OF A COURT DECISION.
* Even if there is no express mention in Sec 1 and 2 on the award of
damages, the SC ruled that such award for damages is contemplated
by the broad concept of "incidental relief as law and justice may
require."
* The recovery of damages arising from the wrongful acts should be
incorporated. If it is not incorporated then it is barred by res judicata.
(SEE Rule 39 Sec 47 par. b)
Thus there can be no separate action for damages because that
will be in effect a splitting of a cause of action.
* The said award of damages may be executed through the use of Rule
39. But generally we do not use Rule 39 to enforce this special civil
action. The proper remedy is contempt.
* Rule 65 is enforced by a petition for contempt.
* Correlate Rules 64, 41 and 16, 17 and 18
* In addition to the grounds enumerated in Rule 16, another ground for
a motion to dismiss is when petitioner violates the principle of
hierarchy of courts in Sec 4 Rule 65.
* Important to determine when it is with or without prejudice, for the
correct remedy.
* One could always file a complaint if the dismissal is without prejudice.
* QUERY: When the MOTION TO DISMISS on ground of lack jurisdiction
is denied, which is an interlocutory order, and the defendant really
believes that there is lack of jurisdiction, what is the remedy
considering that in Rule 16 he will be required to answer?
Petition for prohibition, is the correct remedy: to prohibit the
respondent court from proceeding, that is to stop requiring an answer
from defendant. To avoid answering, a provisional remedy for the

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issuance of the writ of preliminary injunction may be applied for in the
petition for prohibition. The present practice is to file an ANSWER AD
CAUTELAM together with the petition under Rule 65. It is called ad
cautelam, because the answer is filed just to avoid being declared in
default and at the same time the answer will not be construed as a
waiver. The filing of the answer ad cautelam will in effect be just a
precautionary measure. The remedy solves this dilemma: If the
defendant does not file an answer he may be declared in default. If
however he files an answer he may be deemed to have impliedly
waived the defense of lack of jurisdiction.
If instead of filing a petition for prohibition, the defendant files a
petition for certiorari, the SC ruled that the petition for certiorari will be
considered or treated as if a petition for prohibition. This is because the
requirements of the two remedies are practically identical, thus the
error will be disregarded.
RULE 66- QUO WARRANTO (QW)
* Under our new statutes, QW is a special civil action which is
cognizable by all courts even inferior courts. (MAST: Just like contempt
under Rule 71) QW proceeding involving public officials of the
barangay level are cognizable exclusively by inferior courts. (MAST: Sec
191 Election Code; Sec 20 BP 222 Barangay Election Law; Sec 8 RA
3590 Revised Barangay Charter: Will these laws adopt the procedure in
Rule 66? Probably, since they seem to be the legal basis why the
inferior court has jurisdiction over QW proceedings.)
* The petition for QW is designed for the purpose of determining who
between the contestants is entitled to hold office, either a CORPORATE
OFFICE OR A PUBLIC OFFICE.
* SCAF:
1. This is one proceeding which violates the rule on splitting the cause
of action and there is no sanction for this splitting. The basis is that
once the court has decided that the plaintiff is entitled to a particular
office and the judgment becomes final, the law authorizes the winning
party to file a subsequent complaint for the recovery of damages
arising from the usurpation of that office.
(SEE Secs 10 and 11)
2. The court is given the prerogative to reduce the period for pleading
(this is not the case even in other SCAs)(SEE Sec 8)
* The petitioner really is not given much choice. He has to comply with
the principle of hierarchy of courts mentioned in Section 4 of Rule 65

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(Note that there is nothing mentioned about the applicability of the
principle of hierarchy of courts in the Rules. The applicability of the
principle has its origin in jurisprudence.);
* The difference between mandamus and quo warranto:
- Mandamus:
damages cannot be filed in a separate complaint;
- Quo Warranto: we allow a separate complaint for damages;
* A relator can initiate a quo warranto proceeding, even without the
assistance of the Solicitor General. (MASTER: SEE Sec 5)

RULE 67- EXPROPRIATION

* SEE BP 129 Sec 39 on Multiple Appeals;
* The issue that may be resolved in any expropriation proceeding is
whether or not the plaintiff has the right to expropriate.
If that is the first issue, then that is really incapable of
pecuniary estimation. Once that issue is decided by the court, then
the court can go to the other principal issue which could be related to
the value of the property, so that regardless of the assessed value of
the real or personal property that is the subject of expropriation, an
expropriation case will always be cognizable by the RTC.
* SCAF:
1. There is stage 1 and stage 2:
- stage 1: the adjudication by the court, as to whether the plaintiff has
the right to expropriate, after determination that the plaintiff has right
to expropriate;
- stage 2: the determination of just compensation;
2. The decision in Stage 1 is a final order or decision and therefore
appealable. The decision as to just compensation is another final order
or judgment, which is also appealable;
3. When the rules allow multiple appeals to be taken in one and the
same proceeding that means to say that the rules on appeal will be
different from ordinary civil action. Thus, the period to appeal is

15
extended to 30 days and there is another requirement for the
submission of the record on appeal.
4. One civil action which is not governed by Summary Procedure but
there are prohibited pleadings.
NOTE:
Reason why there are prohibited pleadings: The court is
authorized to determine title and other issues. There is no need for the
litigants to file claims, the court will see to it that the claims are paid
by just compensation whether or not they are involved in the litigation.
(MASTER: SEE Sec 9.)
5. Even if the defendant has previously been declared in default, he is
still allowed to participate in the trial of the issue of just compensation.
NOTE:
In so far as the first issue (the propriety of expropriation) is
concerned he is in default, but in so far as the second issue (just
compensation) is concerned he can participate in the trial.
6. Trial by commissioner is mandatory.
* SC decision: Even if the defendant has received the money offered
by the plaintiff, there is nothing that will prevent the defendant from
elevating the matter insofar as the propriety of the expropriation is
concerned.
* There can be an immediate issuance of writ of possession in
expropriation even before the defendant gives his side or is heard, as
long as the deposit required by law is given. This is a ministerial duty
on the part of the court. (MASTER: Sec 2 Rule 67)
* After control or taking of property, it cannot be dismissed since there
is a second stage.
* Even if there is an appeal of 1st stage, the 2nd stage could still
proceed.
* QUERY: In case that the property is in the possession of the
defendant but is in reality owned by national government, what is the
proper remedy?
Expropriation is proper. It can be filed against the occupant
or unlawful possessor, not only against the owner. This remedy is more
expedient and favorable to the government because the complainant,

16
the owner-national government in this case, can immediately take
possession of the property.
FEUD is also another option, but this is more tedious.
* Rule 36 on Separate Judgment VS Judgments rendered in
Expropriation Proceeding:
In Expropriation, both the judgment on the right to expropriate
and the judgment on accounting are appealable.
However, in separate judgments they are not appealable, if a
party wants to appeal, he must get the consent of the court. The
remedy is Rule 65. (SEE Rule 41 (f) as amended)
* In Rule 32 appointment of commissioner is also an incident of an
ordinary civil action.
The difference from expropriation is that, in
Rule 32 it is discretionary. The court moreover may motu propio
appoint commissioners, even if the parties object under certain
instances. (SEE Sec 2 Rule 32)
However in expropriation, whether the parties object or agree, it
is mandatory.
* Rules on appeal:
- 30 days, record on appeal
* If on appeal the SC reversed the right to expropriate, the Rules state
that the trial court will see to it that the defendant is restored to his
property and will determine the amount of damages which is expressly
provided for in Sec 11.
* According to the SC, the complaint for damages arising from the
wrongful expropriation could be subject of a separate complaint. It is
allowed. The justification is that the defendant cannot file a
counterclaim being a prohibited pleading in Sec 3. So, there is really
nothing he can do in the expropriation case if the RTC did not award
damages pursuant to Sec 11.
We follow the same rule in Quo Warranto. There is no express
mention of this remedy in Rule 66, but there is nonetheless a Supreme
Court decision to support the remedy of a separate complaint for
damages.

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RULE 68- FORECLOSURE OF REAL ESTATE MORTGAGE

I. Nature
* What is contemplated in the Rules is a JUDICIAL foreclosure of real
estate mortgage.
II. Chattel Mortgage
* This Rule has nothing to do with foreclosure of Chattel Mortgage.
* QUERY: How does a mortgagee foreclose chattel mortgage?
The recourse is to file a complaint for replevin. Once the
possession of personal property is recovered, then foreclosure may
commence.
III. Extra-judicial Foreclosure
* Extra-judicial foreclosure of real estate mortgage is allowed ONLY if
the mortgagee is given a SPECIAL POWER OF ATTORNEY to foreclose
the mortgage extra-judicially in the Deed of real estate mortgage.
* A mortgage can never be a principal contract. A mortgage is ALWAYS
an ACCESSORY contract.

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IV. Jurisdiction
* It is settled that regardless of the amount sought to be recovered, a
judicial foreclosure of mortgage is always cognizable by the RTC
EXCLUSIVELY.
- REASON: The first issue that will always be resolved when it comes to
judicial foreclosure of mortgage is this: Does the plaintiff have the right
to foreclose the mortgage? By itself alone, that question is not capable
of pecuniary estimation.
(MAST: What can defeat the right of the mortgagee to foreclose?)
V. Three Stages:
- 1st: determination by the court of whether the plaintiff has right to
foreclose;
- 2nd: foreclosure itself of mortgage;
- 3rd: concerned with recovery of deficiency, IF there is any; (MAST: It
is obvious that there could be a case where there will be two stages
only, if there is no deficiency.)
* The court can render three final decisions:
A. on the right to foreclose,
B. propriety or regularity of the foreclosure itself, and
C. the recovery of deficiency if there is any after the sale of the
property;
* This is one action which admits of multiple appeals.
* The rule is the same as in expropriation on multiple appeals. The
court can render three final decisions. The special civil action of judicial
foreclosure of real estate mortgage is MULTI-STAGED.
VI. Parties
* This is one of the few civil actions where the rules themselves tell the
petitioner who should be sued in court.
However, the only indispensable parties are the mortgagee, who
is of course the plaintiff in the case, the debtor and the mortgagor. The
other parties identified in the Rules are only necessary parties.

19
A. Indispensable parties:
The SC held that the indispensable parties are: the borrowers,
mortgagor and of course the mortgagee (plaintiff). But the persons
having or claiming an interest in the property subordinate in right to
that of the holder of the mortgage, they are only necessary parties.
(SEE Rule 68 Sec 1)
B. Necessary Party
A person who has interest inferior to the foreclosing mortgagee is
only a necessary party.
NOTE:
If the mortgagee is ordered to implead a necessary party, there
will only be a waiver of rights of the plaintiff of any claim against a
necessary party not impleaded. (SEE Rule 3 Sec 9)
C. Important: Mortgage 1, 2 and 3:
* If the owner of the piece of land was able to mortgage his property to
three different mortgagees that simply means that he is able to obtain
a loan three times from three creditors.
Usually, the rule is mortgage 1 is superior to mortgage 2 and 3.
However there is nothing wrong if mortgagee 3 will foreclose ahead of
mortgagee 1 and 2. As long as the obligation secured by mortgage 3
matures ahead of 1 and 2. The rule is that all these mortgages are
valid being merely a lien or encumbrance upon property.
* The debtor in a contract of loan could be different from the
mortgagor of the property.
* The only reason why the law requires that mortgagees 2 and 3 should
be impleaded is for them to loose their right of redemption. (MAST: Is it
important to determine whether or not the principal obligation has
become due or not?)
* If one mortgages his car, a second or several times it is a criminal
act. But if one mortgages real property several times it is just fine, as
can be implied from Sec 1 on the concept of inferior lien holders.
* If Mortgagee 3 commences a special civil action for foreclosure he
need not implead Mortgagees 1 and 2. This is so, since each mortgage
is independent from each other. The interests of Mortgagees 1 and 2
are superior (being prior liens). Even if the property is sold in public
auction and the sale subsequently confirmed, Mortgagee 1 and 2's
interests or lien on the property have to be annotated in the certificate
of sale. That is the reason why there is no need to implead them.
(MAST: Since they are sufficiently protected.)

20

VII. Equity of Redemption

* The court will order to pay within a fixed period of time mentioned in
the Rules. This period is referred to in substantive law as the equity of
redemption.
* The equity of redemption continues to exist even if there is already a
public auction sale, it runs until confirmation of the sale.
* Resort to judicial foreclosure is avoided because of the possible
increase in period within which an equity of redemption may be
exercised. This is in view of the multiple appeals that are allowed. The
entry of judgment is the reckoning point of the 90-120 day period. (SEE
Sec 2)
* As long as there is an appeal in the 1st and 2nd judgment (judgment
on right of foreclosure and order on confirmation of sale respectively),
equity of redemption exists. Until the issuance of the order of
confirmation of public auction sale, the equity of redemption still
exists. There is no fixed term as long as there is an appeal pending.
The third stage, which is the recovery of deficiency, may or may not
exist. (MAST: Caveat: I cannot personally understand what is meant by
this paragraph.)
NOTE:
* In extra-judicial foreclosure there is such a thing as the right of
redemption. The right of redemption is the one given at Rule 39, for
mortgagors who are natural persons: within a period of one year from
the registration of the deed of sale.
* There is no right of redemption in Rule 68, even if we follow the
procedure on levy on execution of real estate sale in Rule 39.
VIII. Deficiency
* After the sale is confirmed then the court will determine whether or
not there is a deficiency. If there is, the court will order the debtor to
pay the deficiency which can be enforced under Rule 39.
* The mortgagor may use Rule 39 to levy on execution of other
properties belonging to mortgagor to get the deficiency.
* What the Civil Code refers to when it says that the deficiency is not

21
recoverable, is when there is chattel mortgage and the subject loan is
payable in installments.(SEE Recto Law: Art. 1484 NCC)
(MAST: It is reasonable to conclude that in case of loans not payable in
installments which are secured by chattel mortgage, deficiencies are
recoverable. Only a chattel mortgage securing a loan payable in
installments that recovery of deficiency is impossible.)
IX. Judicial Intervention in Extra-judicial Foreclosure
* In extra-judicial foreclosure, there is no court intervention AT THE
OUTSET. Everything is done through the sheriff of the court or the clerk
of court although under our present system, there should be an
application for extra-judicial foreclosure to be filed with the court.
* Even if the foreclosure is extra-judicial, there will be a court
intervention when it comes to the recovery of the foreclosed property.
Thus the highest bidder will file a motion for the issuance of the writ of
possession.
* ACT 3135: Real Estate Mortgage Law:
In Extra-judicial foreclosure because of the need for SPA, it is
really the mortgagor who decides in the deed of mortgage whether
that remedy can be availed of.
The statement in textbooks that there is no judicial intervention
in extrajudicial foreclosure is inaccurate. The mortgagee will be
eventually seeking the court. The mortgagee, after the confirmation of
sale, (in case he is the highest bidder) may ask or petition the court for
the writ of possession and control of the collateral.
* The Extra-judicial mortgagee does not have to possess the property.
If he decides, he may file a petition with clerk of court of the RTC or
seek the assistance of a notary public. The clerk will raffle the petition
among the sheriffs. The sheriff will then prepare the notice, then there
will be a public auction. There will be issuance of certificate of sale to
the highest bidder. If no right of redemption is exercised within the
prescribed period, title will be consolidated. The mortgagee may then
move or a file a petition for the issuance of the writ of possession.
The remedy is neither a special civil action nor an ordinary civil
action. The remedy is a mere motion, a petition which is incident of a
land registration proceeding. And the court has the MINISTERIAL duty
to grant the motion. The decision should be heard ex parte. There is
thus no need to notify the mortgagor.
X. Provisional Remedy

22
* Provisional remedy: receivership of the collateral. SEE Rule 59 Sec 1
(b).
* The mortgagee can move for writ of preliminary attachment. The
rules do not exclude this possibility as long as the requirements in Rule
57 are complied with. Not over the collateral but over the other
properties of the mortgagor, remember that one of the allegations in
the application for writ of preliminary attachment is that there is no
sufficient collateral. SEE Sec 3 of Rule 57
* A complaint for foreclosure with the prayer for receivership (SEE Rule
59 Sec 1 b) and writ of preliminary attachment is possible.
XI. Judgment by Default
* If the parties did not answer, follow the ordinary procedure. Thus
there could be a judgment by default ultimately.

RULE 69 - PARTITION
I. Nature
* The term partition connotes the idea of CO-OWNERSHIP among
several persons.
(MAST: Review Laws on Property {Art. 484ff NCC} and Wills &
Succession {Art. 1078ff NCC})
* If one of the co-owners wants to leave or get his portion over the
objection of other co-owners, he cannot be forced to remain in the coownership. The co-owner who wants to leave may file this special civil
action. (MAST: What if two co-owners want to leave and three do not
want?) He must implead all other co-owners because they are
indispensable parties.
* The co-owners can agree among themselves voluntarily, BUT if they
cannot agree among themselves voluntarily, that is the time that a
court proceeding becomes necessary.

23
* The Rule contemplates a situation where the co-owners cannot
agree.
II. Amicable Partition
* Even if a complaint is already filed, there is nothing that will stop the
parties from voluntarily entering into a CONTRACT for partition of the
property.
* After the court determines that the co-owner has right to partition,
the court may then proceed to ask if the co-owners want to agree on a
partition. If they want to agree then there will be a deed of partition.
Thereafter the court will render judgment based on that deed of
partition executed amicably by the parties.
III. Commissioners
* But if they cannot agree, then the court shall appoint commissioners.
Partition is similar to expropriation in this matter. (SEE Sec 2) (MAST: It
seems that the appointment is also mandatory by the use of the word
shall) (MAST: Is this appealable? Probably not, being an interlocutory
order. The remedy is Rule 65.)
IV. Co-Owners: Indispensable Parties
* All the co-owners or co-owners pro indiviso should be impleaded as
INDISPENSABLE PARTIES. Failure to implead one will subject the
complaint to dismissal for failure to state a cause of action.
* When it comes to partition when there is a co-owner left out, the
judgment will never become final. And the only way to follow this
procedural principle is to allow the co-owner, who has not been
impleaded, to intervene in the proceeding even after the court has
rendered judgment. (SEE Rule 19)
V. Multiple Appeals
* Just like expropriation and foreclosure of real estate mortgage,
partition is a civil action which admits of multiple appeals. The special
civil action consists also of multiple stages.
VI. Other Matters
* Up to the last centavo there can be a division
* Stage of Accounting is another final judgment.

24

RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER (FEUD)

I. Nature
* In both cases (forcible entry and unlawful detainer), the issue is
physical possession of the property. It does not involve real possession
of the property, that is, possession as a real right. It does not involve
ownership.
* Note that accion reinvindicatoria, accion publiciana may be tried by
the inferior court depending on the assessed value of the property; and
accion interdictal, the law vests exclusive original jurisdiction to the
inferior court regardless of the value of the property and regardless of
the monetary award which the plaintiff seeks to recover: all these three
actions could be cognizable by an inferior court
* These two actions involve ONLY real properties:
- for the recovery of personal property, an action for replevin is the
proper action which can be filed in the RTC or MTC depending on the
value of the personal property determined by the plaintiff in his

25
complaint.
* The SC has repeatedly emphasized that in a complaint for forcible
entry, the plaintiff must allege in the complaint that he held PRIOR
PHYSICAL POSSESSION.
II. Issue of Ownership
* The issue of ownership will not be a justification of the court to
dismiss the complaint, but it is enough justification for the court to rule
on the issue of possession as well as the issue of ownership. But when
it comes to the issue of ownership, the finding of the court will ONLY BE
PROVISIONAL (a separate accion reinvindicatoria may later be filed).
III. Demand
* The requirement of prior demand to pay and vacate may or may not
be jurisdictional when it comes to unlawful detainer:
A. Contract Existing and There is Violation
While contract still running, and there is failure to pay rental:
until the tenant receives from the landlord the demand to pay and to
vacate, the possession is still lawful; when such demand is ignored
then the possession becomes unlawful; thus IN THIS CASE prior
demand to pay and vacate is JURISDICTIONAL;
B. Contract Expired
If the contract of lease has already expired: NO NEED for prior
demand, a case for unlawful detainer can be filed;
C. Implied Lease
If there is an implied lease, that is, if within 15 days the lessor
fails to file a complaint, then the filing of the complaint after this 15
day period needs a prior demand to pay and vacate;
(MAST: This last case needs a clarification. The Jara Notes is very
misleading on this matter. It seems to appear that prior demand to pay
and vacate is necessary on the 16th day onwards without qualification.
BUT upon talking with Dean Jara, I had my enlightenment. First point,
upon failure to file a complaint for unlawful detainer within 15 days
after the expiration of the contract, an implied new lease or tacita
reconduccion as contemplated in Art 1670 of NCC arises. Thus, if for
example the original contract is for one year, then the 16th day is
actually the first day of the new year-long implied lease with same
terms as the original contract. The second point to consider: filing a
complaint for unlawful detainer after the lapse of 15 days needs a prior

26
demand is inaccurate. Prior demand to pay and vacate is necessary
only if there is non-payment of rentals within the implied lease contract
OR there is failure to comply with the terms of the contract which
would require them to vacate the premises. Thus, without any violation
of the new implied contract of lease by the lessee while the period of
the new implied contract of lease is still running, then no prior demand
is necessary because there is no cause of action in the first place. Third
and final point, prior demand is not necessary when the said new
implied lease expires. Thus, in our example after a year or the
expiration of the new implied lease period, prior demand to pay and
vacate is not necessary for filing the unlawful detainer case, provided
that the 15-day period has not lapsed. Again within 15 days and the
lessor files no complaint, a new implied lease is created subject to the
rules discussed above.
NOTE:
According to the SC, the 1 year period can be reckoned from the
time of discovery, if there is forcible entry on the ground of stealth or
strategy. In all other instances we follow the general rule, which is from
unlawful possession.
IV. Special Civil Action: Reason
* QUERY: Why are forcible entry and unlawful detainer special civil
actions? Is it because they are governed by the Rule on Summary
Procedure (RSP)?
No. We have to look for a procedural deviation aside from RSP.
This is because recovery of loans in the amount of 100K or 200K as the
case may be, is also governed by RSP. Such another action governed
by the RSP remains to be an ordinary civil action though it has
deviations consistent with its summary nature. (SEE Rule on Summary
Procedure Sec 1 A)
V. Rule 16 and Affirmative Defenses
* The difference between ordinary procedure and RSP when it comes to
Rule 16 is that in RSP, it is the court that will motu propio dismiss the
case if any of the grounds is evident from the face of the complaint.
(SEE RSP Sec 4; Rule 70 Sec 5)
* The Rule on Summary Procedure does not prohibit the defendant
from filing an answer and in that answer, affirmative defenses are set
up and these affirmative defenses are those found in Rule 16. ( SEE
Rule 70 Sec 6; RSP Sec 5)
VI. No Declaration of Default

27

* Note that there should not be a declaration of default, but the

plaintiff can simply file a motion for the rendition immediately of
judgment OR the court may motu propio render such judgment if the
defendant does not answer.
- such immediate judgment is justified because the pleadings must be
VERIFIED. (SEE Rule 70 Secs 4, 7 and 13; RSP Secs 3B, 6 and 19)
VII. Examination of Witnesses Not Followed
* The ONLY Rule on Evidence that is NOT followed when it comes to
FEUD is the EXAMINATION OF WITNESSES. (SEE Rule 70 Sec 10; RSP
Sec 9)
NOTE:
However, in criminal cases under RSP, the witnesses can be
compelled to go to court for the purpose of cross-examination. (SEE
RSP Sec 15)
VIII. Immediately Executory
* In addition to actions for injunction, receivership, accounting and
support (IRAS) in Rule 39 Sec 4 which are immediately executory, we
include FEUD. Meaning, a court has the ministerial duty to execute the
judgment. FEUD is covered by the statement and such other
judgments as are now or may hereafter be declared to be immediately
executory.
* But this rule on immediate execution in case of FEUD applies only
when the judgment is in favor of the plaintiff.
(MAST: Is this principle applicable also to IRAS?)

IX. Supersedeas Bond

* The SC has ruled several times that a supersedeas bond covers ONLY
the back rentals and damages awarded by the court. (Thus attorneys
fees are not covered.)(SEE Sec 19)
* The filing of a superdeas bond depends on the tenor of the decision.
The bond is only a guaranty that the plaintiff will eventually recover
the back rental awarded by the court in its judgment. Thus if there is
no back rental awarded, no supersedeas bond is needed. (MAST: only
deposit is needed)

28
X. Damages:
As to the question of whether damages in FEUD only includes
back rentals, Dean Jara said that the old cases say that it is only
limited to back rentals agreed upon or if there is no agreement,
payment for the use and possession of the premises. In Progressive
Development Corp, Inc. vs CA (301 SCRA 637) the SC however ruled
otherwise and announced that unliquidated damages may also be
awarded. When I asked him he said, that it is good if one will cite and
apply the two views. Because the Progressive case, as it stands, is
neither affirmed nor abandoned. But of course the Progressive case is
the latest view of the SC.
XI. RTC: Appeal
* If during the appeal the defendant does not deposit the monthly
rental to the court as required by the Rules, the RTC can also order the
immediate execution of the judgment. BUT you will note that
immediate execution ordered by the RTC as an appellate court is only
PARTIAL EXECUTION. Meaning, only the eviction of the defendant from
the premises will be carried out. But in so far as the question of
payment of money is concerned, that will not be subject to immediate
execution. (SEE Rule 70 Sec 19)
* Note when the case is elevated to the RTC, the RTC is no longer
covered by summary procedure.
* The only way to avoid the immediate execution of the judgment by
the RTC is to seek from the CA a writ of preliminary injunction. (SEE
Rule 70 Sec 21)
XII. Real Action In Personam
* According the SC, FEUD is still an action in personam, it is a real
action in personam. This is an exception to the Rule that a decision
in an action in personam is enforceable only against the parties to the
case.(MAST: In the sense that the judgment is also binding on the subtenant, the guests, the relatives and any one who derives justification
of they stay from the lawful possession of the lessee.)
XIII. Rule 41 and Rule 40
If the defendant files a Motion to Dismiss on ground of lack of
jurisdiction for absence of demand, and the court dismisses, this is a
dismissal without prejudice.
QUERY: Can the plaintiff avail of Rule 41? But Rule 41 says it is not

29
appealable, can he file a petition under Rule 65?
No, there can be an appeal, this time the plaintiff should rely on
Rule 40 Sec 8 regarding ordinary appeal from the MTC.
XIV. Other Matters
* When cases involving title to property like recovery of property or
annulment of sale are filed in another court, such cannot defeat or stop
FEUD. In that case of recovery of property, the adverse party cannot
move for the issuance of a writ of preliminary injunction to stop MTC
from trying the complaint for FEUD. Any case involving title to property
and FEUD could stand together.
* It is possible to have a stipulation in the lease contract that there will
be no need to file ejection suit when the lessee violates the terms of
the agreement or refuses to pay or refuses to vacate. The said
stipulation is valid provided the premises are leased for commercial
purposes. The lessor cannot be criminally or civilly liable. If the
premises are residential, then the validity of stipulation is doubtful.

RULE 71 - CONTEMPT
* SCAF:
1. The penalty for contempt can be imprisonment;
2. With respect to direct contempt: the plaintiff or the prosecutor and
the court are one and the same person,
- practically in direct contempt, the respondent has no chance at all of
prevailing in the case; (MAST: What could be the possible reason for

30
the apparent impartiality?)
3. In case especially of direct contempt, there is absence of pleadings,
the court will simply order the person guilty of direct contempt; (SEE
Sec 1)
NOTE:
In case of Indirect Contempt:
I. Where there is a requirement of an INDEPENDENT PETITION: there is
semblance of the application of the rules on civil actions:
A. Should comply with the Rules applicable to ordinary civil actions:
- thus filing of an independent petition, which is an INITIATORY
PLEADING, requiring the payment of docket fees.
(MAST: How about certificate on non-forum shopping? Sec 4 provides
that there should be full compliance with the requirements, so it seems
there should also be certificate on non-forum shopping. But I have a
reservation, the direct contempt proceeding is taken cognizance by the
court which was disrespected. This is also true with indirect contempt
of court involving persons who disrespected the RTC and courts of
higher ranks. Please analyze the provisions of Sec 1, 3, 4 and 5.
Because of this, it is impossible for the injured private party to file a
case other than the court where the case is pending or which decided
the case. The reason for the rule being absent, there is no need for the
application of the rule on certification against forum shopping.
Cessante ratione legis, cessat ipsa lex.
Note however that in Sec 5 of Rule 70, it seems that there is a
need for certification against forum shopping. The evil sought to be
avoided in requiring the said certification is present in the way indirect
contempt is charged against a person who disrespected an inferior
court. The charge may be filed either with the RTC where the lower
court is sitting OR in the lower court itself. Therefore, in so far as
indirect contempt against a lower court is concerned there is a need to
file a certification against forum shopping as provided under Rule 7 Sec
5.)
B. It is HOWEVER similar to Rule 65 thus:
- there will be issuance of order to comment not necessarily summons
(MAST: Is the last phrase an indication that indeed in order for the
court to bring the respondent before it, a process like summons may
be issued as provided in Sec 3?)
- there is no default order in this special civil action;
II. Where commenced by the court MOTU PROPIO:

31
- this court must issue an order requiring the respondent to show cause
why he should not be cited in contempt of court, at least there is A
TRIAL here; (SEE Sec 4)
4. The court could send the respondent to jail for an indefinite period of
time, a feature not even found in criminal cases:
- INDEFINITELY: as long as you refuse to perform the act required of
(MAST: Does this only apply to Sec 8?);
5. REMEDIES:
A. DIRECT CONTEMPT:
- certiorari or prohibition as mandated by the Rules; (SEE Sec 2)
- Jurisprudence: special proceeding of habeas corpus, in fact there is no
prohibition from a petition for certiorari being joined together with the
prayer for the writ of habeas corpus;
(MAST: But could they be filed independently without violating splitting
a cause of action?)
- The remedy of habeas corpus can be invoked especially if
incarceration is concerned.
- In Direct contempt, there is no need for a complaint unlike the other
special civil actions. The judgment is rendered right away. Here is a
final order which is not subject to appeal but certiorari.(MAST:
Somehow of a feature the same as some of those enumerated in Rule
41.)
B. INDIRECT CONTEMPT:
- the remedy is PLAIN APPEAL
(MAST: Why is certiorari not applicable, how about Motion for
Reconsideration or New Trial or Relief from judgment or Annulment of
judgment?);
6. Although contempt may be classified as civil and criminal: there can
be no appeal from the order absolving the respondent of the contempt
charge, reason: DOUBLE JEOPARDY; (MAST: Does this rule apply to both
direct and indirect contempt, civil and criminal contempt? SEE the
conflict with Regalado)
7. Contempt as a remedy to execute a judgment is an exception to the
general rule:

32

- one exceptional case is when the judgment directs the performance

of an act which is purely personal to the defendant, meaning he alone
can do this act (MAST: Rule 39 Sec 11 on Execution of special
judgments: is this direct or indirect contempt? It appears that this is
also indirect contempt under Sec 3b)
NOTE:
Rule 65 is enforced by a petition for contempt. Therefore, we can
observe that at least there are two instances (Rule 39 Sec 11 and Rule
65) where contempt can be a mode of enforcing a decision. In case of
Rule 65 the contempt charge will be against a disobedient court which
falls squarely under Sec 3 (a) or (b) of Rule 71.
- In unlawful detainer what is contemptuous on the part of the
defendant is his return to the premises after he has been successfully
evicted (by sheriff and the police)(MAST: Section 3b of Rule 71 in
relation to Rule 39 Sec 10c: clearly this is INDIRECT CONTEMPT)
* Contempt is previously a provisional remedy, that is why it has
similar features with provisional remedies where there is a principal
case. At present, it is already raised or elevated to the level of an
independent special civil action. But still contempt proceedings
presume or involve a main case or action before availment of the
special civil action of contempt.
* This is similar to quo warranto because it is also cognizable by all
courts.
* In contempt proceeding there is a need for an appeal bond, if the
contemner does not want to go to prison. This is because the judgment
of contempt is immediately executory.
SALVATOR mundi! Salva mundum!

The whole world is not worth one soul St. Francis de Sales

SPECIAL PROCEEDINGS

33
PRELIMINARY MATTERS
* Out of 37 Rules in SPECPRO, 20 concerns with the settlement of
estate. (MAST: 72-90 Settlement of the estate proper, 91 indirectly
connected)
* Some of the Rules are no longer applicable, like the Constitution of
the Family Home which has been practically rendered useless by the
Family Code Art 152ff.
* NOTE: In Rule 1 Sec 3, there is no mention of the applicability of
ordinary rules to Special Proceedings. However SEE Rule 72 Sec 2,
which mentions this applicability;
* Barangay Conciliation is not applicable to Special Proceedings
particularly in Settlement of Estate;
REASON: SPECPRO is governed by its own set of Rules, the Rules do
not so state such applicability;
(MAST: One specific reason is that many of the issues that are resolved
in settlement proceedings are prohibited to be compromised like the
status of the heirs.)
* Motion to Dismiss:
A motion to dismiss may or may not occur. It is possible in
probate proceedings and petition for the issuance of letters of
administration. This is so, because grounds may be invoked to dismiss
the petitions or application.
(SEE Sec 10 Rule 76; Sec 4 Rule 79)
*NOTE: The summary special proceeding under Alternative Dispute
Resolution in case of enforcement of foreign arbitral awards as
provided in Sec 44 and 47 of RA 9285;(MAST: Analyze Sec 22 of the
Arbitration Law RA 876 on Domestic Arbitration, which states that
Arbitration is deemed a special proceeding.)

SETTLEMENT OF ESTATE
I. Testamentary Privilege

34
- Not embodied in the Rules but in the Civil Code specifically the rules
on Succession; (SEE Article 774ff NCC)
- This is part of the Civil Code which is implemented by the Rules on
the settlement of estate;
- Definition: refers to the right given by law to a person to dispose of
his property during his lifetime but the disposition of the property may
take effect after his death;
II. Letters testamentary:
- is the authority given by the court to an executor who has been
nominated by the testator in his will;
III. Letters of Administration:
* 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 is a will, is contained
in the document called letters of administration with the will 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 duly admitted to
probate and therefore intestacy results; (SEE Sec 6 Rule 78)
IV. Ancillary Administrator
In order to have an administrator in the other country where the
decedent has left some properties, the recourse is ancillary
administration. Thus an ancillary administrator presupposes that there
is a principal administration proceeding in a foreign country but the
decedent left some properties in the Philippines. (SEE Rule 77)
V. Settlement Proceeding in General
A. The heirs become such immediately after the death of the testator:
* Settlement proceedings can take place only after the decedent has
died. (MASTER: When the testator presents his will himself, how do you
classify that? SEE Sec 1 Rule 76; Note also Secs 3 2nd par. and 4 2nd
par., on the effect if the testator himself petitioned for probate on the
mandatory jurisdictional requirements)
* But it does not mean to say that the heirs can automatically take
possession and have ownership of the properties left by the decedent;

35

* This is qualified by the absence of creditors of the decedent;

* The principal purpose therefore of settlement proceedings is to
liquidate the estate of the deceased;
* LIQUIDATION: the acts of making inventory of all the properties of the
deceased, naming all the creditors of the deceased;
* The creditors of the deceased are always given preference over his
heirs;
B. If there is no will left, the heirs have TWO OPTIONS:
(a) Settle the estate extra-judicially;
(b) Go to court:
If there is no agreement among the heirs or if there is dispute
among them:
1. Complaint for partition; OR
2. Institute settlement proceedings:
> probate proceedings
> proceeding on intestacy
* Even if the heirs extra-judicially settle the estate of the predecessorin-interest on the premise that there is a will and there are no debts
that extra-judicial settlement can never be registered by the officers of
the government unless the taxes are paid first. (SEE Secs 94 and 95
NIRC)
VI. Extra-judicial Settlement
A. CONDITIONS BEFORE THE HEIRS OF A DECEASED PERSON CAN
EXTRA-JUDICIALLY SETTLE THE ESTATE OF THE DECEDENT:
1. The decedent must have left no will;
2. There are no debts;
3. The parties agree among themselves to the partition of the
properties left by the decedent; (SEE Sec 1 Rule 74)
* Settlement in private instrument is still valid, although this is binding
only between the parties to it;
B. Deed of Extra-judicial Partition - if there are two or more heirs;

36
(MAST: It seems that extra-judicial settlement and extra-judicial
partition are synonymous and have the same requisites.)
C. Affidavit of self-adjudication - only one heir;
D. Protection of Creditors:
1. State:
* If the estate consists of personal and real properties there will be a
need for the certification title to be transferred in the name of the heirs
in accordance with the partition agreed upon in the deed of
extrajudicial partition. The Register of Deeds will not register any
document extra-judicially partitioning the property unless there is a
clearance from the BIR. (Sec 95 NIRC)
* With respect to the Republic of the Philippines, there is practically no
danger that the Republic will lose the taxes. The particular concern is
with the other creditors of the deceased.
2. Creditors:
* 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
payment of indebtedness within a period of 2 years.
If there are no real properties involved, the protection given by
law to creditors is that these heirs will be required to file a bond,
equivalent to the value of the personal properties left behind. (SEE Sec
4 Rule 74)
VII. Two Options by Way of Settlement Proceedings:
1. To settle the estate summarily in a judicial proceeding which is
practically a useless provision now (because of the value);
2. The regular settlement proceeding;
* The only difference between Summary Settlement and Ordinary
Settlement is the absence of an executor and administrator.
* Note the difference between Summary Procedure and Summary
Settlement Proceedings.
A. Regular Settlement Proceeding:
* The jurisdictional facts are: that the decedent has died; and is a
resident; and the gross value of the estate;

37

* Note jurisdiction lies in the RTC or MTC as the case may be; (See BP
129)
* There should only be one court to settle the estate of the deceased
person, otherwise there is a possibility of these courts issuing
conflicting decisions and orders; (SEE Sec 1 Rule 73)
* QUERY: Where to file the settlement proceedings?
: It is the place where the decedent last resided. (MAST: Which
means in which he resides at the time of his death SEE Sec 1 Rule
73.)
: The court which first takes cognizance will do so to the
exclusion of other courts. (SEE Sec 1 Rule 73)
(MAST: Is this a principle of venue or of jurisdiction? I believe that this
is just a principle of venue, since it is just a matter of one court giving
way in favor of another, to avoid conflicting decisions.)
VIII. Limited Jurisdiction
* The Settlement Court whether the proceeding is estate or intestate is
a court which acts with a very limited jurisdiction. It has jurisdiction
only to:
1. Liquidate the estate;
2. Decide the claims against the estate;
3. Decide who the heirs are;
4. Distribute the estate;
* Thus they cannot resolve questions of ownership involving properties
of the decedent if these properties are claimed by strangers. An
independent action must be filed for the purpose of adjudicating this
controversy.
(MAST: What if the question involves the claim of ownership of an heir
and not of a stranger? The court may not generally also determine this
issue. However, if all the heirs agree to submit the question to the
probate court, then the court can determine the issue. However such
determination is not binding on third persons, but only on the heirs.)
IX. When Issue of Ownership Determined

38
* GENERAL RULE:
The issue of ownership should be determined or raised not in a
special proceeding but in an ordinary civil action.
Exceptions:
1. When the heirs agree to submit the issue of ownership to the
probate court;
NOTE:
Even if the heirs all agreed to submit the issue of ownership to
the probate court; still, the determination of the court as to ownership
is not binding against third persons who did not participate in the
resolution of the issue.
2. Provisional ruling on ownership allowed;
* QUERY: Suppose the execad discovers that a certain bank account
and a land belong to the deceased. Can the execad file a motion to the
settlement court for the return to the estate of the said properties? Can
the settlement court validly issue an order to the bank or the Register
of Deeds to transfer the title to the estate?
In both cases the answer is NO. If there is an issue as to title of
the property, the settlement court cannot determine such issue. This is
because the settlement court is a court of limited jurisdiction. The RTC
is the only court which is a court of general jurisdiction. But if it acts as
a settlement court, it exercises only limited jurisdiction. What is the
remedy then? The executor has to file an ordinary action or an action
reinvindicatoria. Note that when an ordinary action is filed, the RTC is
not necessarily the same settlement court, we have to follow the
ordinary rules on jurisdiction and venue. Thus the court can be an
inferior court.
X. How to Commence the Proceeding
A. Petition
* If a person dies and has left a will, the person in custody of that will
can simply go to court, surrender the will to the court and the act of
surrendering that will to the court already commences settlement
proceedings. So there is no absolute necessity for the filing of a
petition for the allowance of the will. (MAST: According to SC decisions
there is even no need for a petition at all to be able to commence a
special proceeding; SEE Sec 3 Rule 76)
* But generally in settlement proceedings, the petition prepared by the
lawyer will be accompanied by the petition for the probate of the will or

39
petition for the issuance of letters of administration as the case may
be. The petition for the allowance of the will or the issuance of letters
of administration should embody:
(a) The legatees or devisees;
(b) The last residence of the decedent;
These are jurisdictional facts which should be embodied therein.
B. Bond
General Rule:
There is a need for the execad to file a bond before he assumes
office as an executor or administrator. (SEE Rule 81)
Exception:
There are certain instances provided in other laws that even if
there is no bond filed, the execad can assume office. An example is
found in General Banking Act. When a banking institution with trust
powers, or which acts as a trust corporation, was designated as the
execad, there is no bond required to be filed by the executor or
administrator bank.
REASON: Because the Central Bank already required the filing of large
amount of money, as bond, when the said bank applied to be a trust
corporation or applied for a license. Therefore the bank is not required
to file another bond when it accepts its designation as the execad.
XI. In Rem Proceeding
* A settlement is a classic example of a proceeding in rem. There is a
petitioner but there are no respondents identified in the petition.
* The court does not issue summons, there is no defendant;
* The settlement court acquires jurisdiction over the petitioner when he
files the petition since this is a voluntary surrender to the jurisdiction of
the settlement court;
* QUERY: How does the court acquire jurisdiction over the heirs, over
the persons interested in the estate of the deceased?
Once a petition for probate or a petition for the issuance of
letters of administration is filed with the court, the court is COMPELLED
to issue an order setting the matter for hearing.
This order must be published in a newspaper of general
circulation once a week for three (3) weeks. It is this act of publication

40
which will confer jurisdiction upon the court.
MANDATORY REQUIREMENT: In addition to the publication of this notice
of hearing, the court is required to serve by personal service or by
registered mail notices to the heirs, legatees and devisees identified in
the petition.
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 proceeding. (MAST: Analyze the very reason for
this mandatory requirement as compared to the earlier statement that
the publication confers the jurisdiction. From what I heard in another
recording of Jara's lecture, it is clear that the position of Dean is that,
there should be BOTH publication and personal notice.)
But remember that what is published is the notice of hearing. It
is the order of the court after the petition has been filed or after a will
has been submitted to court. (SEE Secs 3 and 4 Rule 76)
XII. Extrinsic Validity and Other Evidentiary Matters
* If there is a will left by the testator, then the hearing will first be
concentrated 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 Code have been satisfied.
* Admission to probate simply means that the will is extrinsically valid,
that the formal requirements in the Civil Code have been satisfied by
the testator and subscribing witnesses. The probate of a will has
nothing to do with the intrinsic validity of the will. It has nothing to do
with the contents of the will.
A. Impeachment of Witnesses
In the probate of a will a petitioner is free to impeach a
subscribing witness. Therefore the petitioner is not bound by the
testimony of these subscribing witnesses.
REASON: The evidentiary rule which provides that a person cannot
impeach or contradict his own witness assumes that the party
presenting the witness has freedom to choose who these witnesses
are. In probate proceeding, the petitioner really has no choice at all in
presenting the subscribing witness. These witnesses are in truth not
the witnesses of the petitioner. They are witnesses to be presented in
compliance with the Rules of Court, because the Rules require that the
subscribing witness be presented. (SEE Sec 12 Rule 131)
B. Notarial Will as a Public Document
General Rule in Public Documents:

41
There is no need for authentication, the public document is
presumed prima facie as to its due execution and authenticity. (SEE
Rule 132 Sec 23)
Exception: In case of a Notarial Will, its authenticity must be proved;
C. Best Evidence Rule:
Generally, in case of a public document, before secondary
evidence can be presented the other original copies must be
accounted for. For example in case of a Deed of Sale which was
notarized, the vendor, the vendee and the notary public have their
respective original copies. However as an exception, due to the fact
that there is only one copy of the notarial will, upon its destruction and
loss, a xerox copy can be presented in evidence and in the absence
thereof then the testimony of a witness may be offered in evidence;
(SEE Rule 130 Sec 3)
D. Dead Man's Statute (SEE Rule 130 Sec 23)
XIII. Executor and Administrator
A. Officer of the Court
The executor or administrator appointed by the court is a neutral
party. He does not represent the heirs. The executor or administrator is
an officer of the court. The requirement is that this executor or
administrator must file a bond in addition to other duties which are
which are embodied in the Rules. (SEE Sec 1 Rule 81)
* Supreme Court Justice, appointed executor in the will, could this be
done?;
B. Order of Preference
There is an order of preference when it comes to the
appointment of an administrator.
But there is no order of preference when it comes to the
appointment of an executor.
REASON: An executor is a person nominated in the will by the testator
himself. (SEE Rule 78 Sec 6)
* In all proceedings where there is an element of trust that is
involved...the common obligation that the rules impose upon them
aside from the filing of the bond is that, they must submit a true and
complete inventory. They must submit an accounting within a period of
1 year and in such other time as the court will require. And they must
obey at all times the orders issued by the court, whether it is a

42
settlement court or a guardianship court or a trusteeship court. (SEE
Rule 81 Sec 1; Rule 94 Sec 1; Rule 98 Sec 6)
C. Final Order
When the court appoints an executor or administrator, the
appointment is a final order. Since it is a final order it is appealable.
(SEE Rule 109 Sec 1 e)
XIV. Special Administrator
A. Appointment of General Execad Challenged
* 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. According to the
Rules, the court can now appoint a special administrator. The
appointment of a special administrator is not appealable. (SEE Rule
109 Sec 1 e; Sec 1 Rule 80)
* There is conceivably no harm in appointing the same person as the
special administrator because there is a vast difference between the
powers and duties of a regular administrator and a special
administrator. A special administrator:
1. Cannot pay obligations;
2. All he does is to protect the property;
3. Cannot sell the properties of the estate;
4. Cannot mortgage properties of the estate;
5. He can only be a caretaker of the properties of the estate until
a regular administrator or executor is appointed by the court.
(SEE Sec 2 Rule 80)
* Note that in case of a challenge to the appointment of a special
administrator under Rule 65, the higher court may issue a writ of
preliminary injunction to stop the appointment. The grant of such
injunction however is seldom, since the higher court usually prefers
that there be someone to preserve the property.
B. General Administrator has a Claim against the Estate
* QUERY: How about if it is the execad who has a claim against the

43
estate?
A special administrator will be appointed. This is because there
would be a conflict between the duty of the general administrator as
such and his interest against the estate. (SEE Rule 86 Sec 8)

XV. Statute of Non-Claims

* Notice that there are two classifications of claims in Rule 86:
1. secured claims;
2. unsecured claims;
* After the execad submits the inventory and identifies the property in
his possession, then the settlement court issues the second order
(which is published) ordering the filing of claims.
* A rule of prescription contained in the Rules of Court, specifically Rule
86;
* The consequence if these claims are not duly submitted to the
settlement court on time, then the creditors loses their right to enforce
collection of their claims;
* QUERY: What will the court do after the administrator has taken an
oath of office?
The court will issue another order fixing the date for the
enforcement of the Statute of Non-Claims.
The court will issue an order directing the money claimants
against the estate should file their claims within a period of not less
than six months nor more than twelve months from the date of the first
publication within which to submit their respective money claims.
OTHERWISE THESE MONEY CLAIMS ARE BARRED. So they will no longer
be enforceable against the estate of the deceased person. (SEE Rule
86 Secs 2 and 5)
A. Rule 3 Sec 20 and Rule 39 Sec 7 in Connection with Money Claims
* Rule 3 Sec 20, the claims here are the same as the unsecured claims
in Rule 86.
* The defendant has died, there is a judgment against him and there is
already a levy on the property of the deceased defendant. The levy will
continue and the properties levied upon 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 executor or

44
administrator under the provisions of Rule 39. (SEE Sec 7 c Rule 39)
B. Nature of Money Claims
The claims referred to in the Statute of Non-claims are PURE
MONEY CLAIMS arising from contract express or implied and do not
include claims for the recovery of personal or real property. They do
not include claims arising from tort.
* The claims could either be due or contingent (MASTER: Meaning not
yet due or still conditional)
* An unsecured creditor is one who does not hold a mortgage, pledge
or any other collateral security during the lifetime of the defendant.
C. Jurisdiction
We do not apply the provisions of BP 129 when it comes to the
determination of whether or not the settlement court has jurisdiction
over certain money claims. The RTC has jurisdiction over the amount of
the claim, even if below the jurisdictional amount.
(MASTER: How about if the settlement court is an MTC, can a creditor
claim beyond the jurisdictional amount? I think Yes, because it can
happen that the liabilities of the decedent is more than the assets. If
we do not allow the money claim even if it is beyond the jurisdictional
amount, we would be depriving the creditor of his right to at least
recover a certain amount, and certainly he would be getting less than
what he deserves in the settlement proceeding. BP 129 applies only to
the main settlement case. Anyway, the court will be awarding to the
creditor only an amount of money within its jurisdiction nothing more,
thus there is no danger that it would be acting in excess of
jurisdiction.)
D. How Commenced
*A money claim in the settlement court is not commenced with the
filing of a complaint.
* All that the claimant is required to submit is an affidavit saying that
he has a claim against the estate, and in that affidavit he will annex
supporting papers.
* Because a money claim is not in the form of an action as
contemplated in civil actions, the executor may or may not file an
answer. The executor may not contest the claim.
E. Trial
If there is a contest of that claim, then there will be a trial to be

45
conducted by the settlement court to determine whether or not that
claim submitted by the creditor is valid. In the trial of the contested
money claim, the court is not required to sit as the judge during trial.
This is one instance where the court is given the discretion to
appoint a commissioner for the hearing of the contested claims. (SEE
Rule 86 Sec 12)
F. Notice to Creditors
Note that one cannot issue a notice to creditors before the
appointment of a regular executor or administrator. It is imperative
that a regular executor or administrator be duly appointed and
qualified first, before there could be notice to creditors. As a
consequence, there is no notice yet to creditors if it is only a special
administrator who is appointed, this is understandable because a
special administrator has limited powers which do not include
determination of the claims of creditors;
G. Appeal
* Once a claim is adjudicated by the court, that adjudication again
becomes a final order which is appealable. (SEE Rule 109 Sec 1 e)
* And while there are appeals going on, on these contested claims, it is
not possible for the administrator or the executor to distribute the
estate among the heirs because the principal purpose of the
settlement is always the liquidation of the estate- payment first of the
creditors ahead of the heirs of the decedent.
H. Contest
If the administrator decides not to contest a particular claim, the
heirs could submit their own contest 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. (SEE Rule 86 Sec 11)
I. Recognition by the Testator of the Claim in the Will
* The recognition by the testator of the existence and validity of
certain accounts will not be an excuse for these creditors not to submit
their claims within the period provided by law.
* Even if the testator in his will expressly stated that he is indebted to
creditors and commands the payment thereof, there is still a need to
file a claim in accordance with the Rules. Even if we know that the will
of the testator must be given effect, such however is not true when it
comes to the payment of the liabilities of his estate. It is for the court
to finally determine whose claim should be allowed. There might be

46
collusion between the testator and the creditors mentioned in the will
to the prejudice of the other creditors not mentioned in the will. The
settlement court prevails in determining whose claim is to be allowed.
J. Basis of Statute of Non-Claims
The Supreme Court said that it is true that prescription is a
matter of substantive law but the provisions of the Rules of Court
pertaining to Statute of Non-claims is substantive because it is just a
reproduction of an old provision in the Code of Civil Procedure. The
Code of Civil Procedure was substantive law, that is, before the Rules of
Court took effect. It is a reproduction of an old substantive law, which
has not been repealed by the Civil Code. There is really no conflict
between the Civil Code and this provision, and the provision of the
Rules of Court should be taken as an exception to the rules on
prescription contained in the Civil Code.
K. Creditors Not Covered
* There are creditors who are not covered by the provisions of Statute
on Non-claims and they are expressly found in the Rules namely:
creditors who hold collateral or mortgage over the properties of the
decedent. (SEE Rule 86 Sec 7)
* We are referring here to mortgages contracted by the decedent
during his lifetime;
* The rule is different with respect to mortgages that are contracted by
the executor or administrator with the permission of the court; (SEE
Rule 89)
L. Contingent Claim
* The Rules are clear in saying that money claims whether they are
contingent or absolute must be presented within the period otherwise
they are barred.
* CONTINGENT CLAIM: ... If this claim becomes certain later on, then
the executor or administrator will have to retain a part of the estate for
the payment of this contingent claim.
If the executor is ordered by the court to distribute the estate
notwithstanding the fact that this contingent claim has not matured or
has not become absolute, then the distributees of the properties of the
deceased could be held personally liable up to the limit of their share
in the estate in the payment of the contingent claim.
* According to some authors a contingent claim - includes a pending

47
case, even before there is a judgment. This is because it may happen
that the defendant dies or a party dies during the pendency of the
case. During the pendency of the case a settlement proceeding may
also be initiated and we know that it will take time for the case of the
creditors to be final and be entered. And because of the Statute of
Non-claims, the remedy of the creditors in a pending case is to already
file a claim in the settlement of the estate to protect their interests.
And since they do not have a final (and executory judgment) yet in
their favor, their claim is classified as a contingent claim.
M. Summary of Procedure for Filing Claims against the Estate
It is not proper in case of unsecured claims to file a separate
complaint against the execad. If an ordinary action is filed for recovery
of money (unsecured) against the executor or administrator, the case
will be dismissed. Because the procedure is to file a claim under Rule
86 with the settlement court. A claim under Rule 86 is similar to a
third party claim or terceria under Rule 39. The claim is not a
complaint, a counterclaim etc, but it is just an affidavit which the
claimant sets forth his claim and annex the documents which will
justify approval of the claim. It is not an action where there is plaintiff
or defendant. It is again only an affidavit where the claimant outlines
his claim, its brief history, the details and where he attaches the
supporting documents (like a promissory note). The claimant submits
the claim to the executor or administrator. The executor or
administrator must answer the claim by either denying or admitting
the claim. If the execad admits the validity of the claim, then there is
no dispute at all and the court may approve the claim right away. So it
is possible that the execad may conspire with other claimants. Is there
any check to this possibility? Under the Rules even if the execad files
an answer that admits the claim, the court can ask the opinion of the
heirs. Even if the execad appears to be a very powerful person, the
power could be neutralized by the heirs who can deny the claim. What
if the execad denies, will there be a trial? Yes. Notice that the burden of
the settlement court becomes very heavy if there are several
claimants. For example if there are 10 different claimants and all the
claims are denied by the execad in his answer, the settlement court
will give opportunity to everyone to present evidence of claims; and
the execad and heirs to present rebuttal evidence. To ease the
burden, the court can appoint a commissioner solely for the
purpose of hearing the claims. In addition to expropriation and
partition, where commissioners are also appointed, we have
here another instance where a commissioner is appointed.
(MAST: Note that unlike in expropriation and partition, the referral to
commissioner here is discretionary. SEE Rule 86 Sec 12 word may)
The commissioner recommends the approval of the claim and the

48
settlement court approves.
The remedy is not certiorari, the 10 final orders approving the 10
claims are appealable. So there can be 10 appeals. The mode of appeal
is by notice of appeal and record on appeal. The period to appeal is 30
days.
Once the settlement court approves the claim, that approval is
not a guarantee of payment. The claimant must wait until the order for
paying the claims is issued. It is not practical for the creditor to move
for execution because the person handling the property, the execad, is
an officer of the court. Generally, there is no writ of execution that can
be issued for the purpose of enforcing the claim. The remedy is to file a
motion to compel the execad to pay so that the court will issue the
order for paying the claim. If the execad ignores the order compelling
him to pay, then the remedy is contempt.
N. Solidary Obligation
QUERY: Suppose during his lifetime the deceased signed a promissory
note together with another person. The deceased accommodated a
friend and signed as a solidary debtor. Should the creditor bank also
file a claim with the settlement court against the estate of the
deceased, although it has an option of claiming against the friend who
is also solidarily liable?
Yes. The creditor bank should still file a claim as if the deceased
is the only debtor in that indebtedness. It is true that it is the privilege
of the creditor to run after any of the solidary debtors as provided
under the Civil Code. But if the creditor only runs after the other
debtor, but he fails to file a claim against the estate of the deceased
debtor, his claim will be barred as to the latter. (SEE Rule 86 Sec 6)
O. Concurrence and Preference of Credit
* To determine whether or not the estate is solvent one must look at
the inventory and accounting which is regularly submitted.
*QUERY: If the estate is insolvent, does the settlement court possess
the power to determine which claim should be paid ahead?
It has power, but it must comply with the Civil Code Provision on
Concurrence and Preference of Credits. (SEE Art. 2236ff NCC; Sec 7
Rule 88)
XVI. Options of Creditors not Covered by Statute of Non-Claims
* The creditor is given three options under the Rules:

49
1. Abandon the mortgage and consider its loan as an unsecured
loan, in which case the creditor should file a claim against the
estate;
2. Rely on its mortgage- foreclose the mortgage and if there is
any deficiency, the creditor can file a claim with respect to the
deficiency;
3. Rely absolutely on the collateral that it holds, in which case it
does not have to participate in the settlement proceedings.
* As to the 2nd mode: Deficiency is contingent because there is no
guarantee that there will be a deficiency after foreclosure.
* If the decedent has died and in the contract of mortgage that is
previously contracted, there is a special power of attorney that is given
to the mortgagee to foreclose, that special power of attorney is not
extinguished by death.
REASON: This is an agency that is coupled with an interest. It is only
the agent who is given the prerogative of canceling the power of
attorney.
* The Civil Code states that death of principal or agent extinguishes the
agency. But also under the Civil Code even if the agent or principal
dies, the agency will not be extinguished if it is an agency coupled with
an interest. The agency to extra-judicially foreclose is an agency
coupled with an interest: in the sense that the agency is created solely
for protecting the interest of the agent. Besides under Rule 86, the
mortgagee can rely solely on the mortgage, and may not participate in
the judicial proceedings. In other words, Option Number 3 gives the
mortgagee the choice to extra-judicially foreclose a mortgage created
during the lifetime of the mortgagor. The death of the borrower or
mortgagor will not affect the power of the mortgagee to extra-judicially
foreclose the mortgage with special power of attorney to do so. Of
course, he may also opt to judicially foreclose, if he chooses Option
Number 2. (SEE Art. 1930 NCC)
XVII. Sale and Encumbrance of Property
* It may happen that the estate is solvent but it has no liquid funds.
The Rules give the remedy to the execad to ask the court to dispose of
or encumber the property. Theoretically, the Rules allow approval only
of the sale of personal properties. But, as to real properties there can
be sale or encumbrance. However, the Rules give the court enough
discretion whether to allow the encumbrance or sale of personal
property. The Rules do not require strict application of the provisions of

50
the Rules. The court could still evaluate the benefit that the heirs or
creditors will derive in the sale, conveyance or encumbrance of either
personal or real properties. In some instances the Court could require
that a proper motion must be heard first; and even require the
publication of the motion for permission or leave for sale, conveyance
or encumbrance of properties. (SEE Rule 89 Sec 7)
* When it comes to personal property the court can authorize the
executor himself for the sale of the property. In case of real property
the Rules authorize the sale or encumbrance of property to satisfy the
debts.
* The settlement court has the absolute discretion to authorize the sale
or mortgage of both real and personal properties as long as the
purpose for the conveyance or disposition of these properties is to
raise money to pay off the obligations of the estate. Court decisions
are to the effect that these provisions should NOT be interpreted
strictly.
* Even if the claim of a creditor is approved by the court, it cannot
move for the execution of such claim. The creditor must wait for the
proper time, which is when the settlement court finally issues the order
directing the executor to pay the creditors.
* Once the court issues an order directing the executor or
administrator to pay the creditors, then the executor and administrator
(execad) must pay.
* When the assets are hard assets or not liquid assets, there is a need
to liquidate said assets if the claim is pecuniary in character. When the
indebtedness or claim is in the form of money, the settlement court
should pay also in money by selling property of the estate to satisfy
the debts. Consequently, dacion en pago or payment in kind is
generally discouraged.
* QUERY: Can the court authorize a dacion en pago?
Yes. In case of an heir when he has a claim against the estate.
We allow this because dacion en pago is just a specie of a contract of
sale provided of course that the heir has previously filed said claim
within the Statute of Non-claims. (MASTER: There seems to be a
conflict between the last sentence of the preceding paragraph and this
query. The only reconciliation that can be made is to make the
prohibition or discouragement of dacion en pago in paying the
creditors of the estate as the general rule; and the payment of a claim
of the heir against the estate in this form as the exception. Moreover,
the court has a wide discretion to pay debts through dacion en pago
provided that it is beneficial for the estate and will not reduce the

51
assets in the hands of the executor and administrator so as to prevent
a creditor from receiving his full debt or diminish his dividend. Possible
exceptions are Sec 8 and 9 of Rule 89.)
XVIII. Status of a Sale without Authority of Settlement Court
* In case of a buyer of the property under administration and the
contract of sale of such property was not submitted to the court for
approval or without authority of the settlement court, such sale is
VOID. The third person or the buyer cannot argue that he is a buyer in
good faith or for value. This is not a good argument in cases of sale
between third person and the execad, if it is without the PRIOR
approval or authority of the court.
REASON: The THIRD PERSON who is the buyer cannot claim that he is
in good faith. He should know that the execad is just acting as an
officer of the court (as an officer he needs prior authority in entering
into contracts of sale involving property under administration) and that
the execad is under the authority and supervision of the court.
* Under the Rules of Evidence, the buyer is conclusively presumed to
know that execad is an officer of the court and to know the law. (Rule
89 Sec 1ff)
* In a case, the settlement court issued an order directing the sale of
the property under administration at its minimum prize provided that
the deed of sale must be first submitted to the court for approval. The
administrator of the estate sold it at a good price to a buyer, but
neglected to submit to the court the deed of sale for approval. The
buyer having the deed of sale registered it with the Register of Deeds.
Subsequently an heir questioned the contract of sale on the ground of
the lack of court approval or disobedience of the lawful court order. The
SC ruled in favor of the heir and declared the disputed contract of sale
void.
In this case, the execad is not obeying the lawful order of the
settlement court. To cure the defect, the remedy is to submit the
questioned deed to the settlement court for approval.
The court is given enough discretion on whether to approve or
authorize the sale or encumbrance of personal property and real
property, as the case may be, if it will serve the best interests of the
estate of the deceased person.
XIX. Contract of Lease
* QUERY: Can the execad, sign a contract of lease?
Yes, but the contract must have the approval of the settlement court.

52
* QUERY: If the tenant however during the pendency of the contract
does not pay the execad as lessors, can the settlement court order the
ejectment or eviction of the tenants?
No. The execad must file a separate and independent special
civil action for ejectment or unlawful detainer under Rule 70. The
settlement court has only limited jurisdiction (to liquidate the estate of
the deceased person), and cannot enforce the terms of the contract of
lease even if this contract is approved by the court.
XX. Deed of Mortgage with SPA to Extra-judicially Foreclose
* QUERY: Can the court authorize the execad that in the deed of
mortgage, for the purpose of paying debts, to give a special power of
attorney to mortgagee to extra-judicially foreclose the mortgage on the
property in case of non-payment of debt?
Yes, the mortgagee may go ahead with the foreclosure. A
foreclosure proceeding can proceed against the execad and the court
cannot enjoin the mortgagee from doing so.
XXI. Partition and Distribution
* The determination of an heir by the settlement court will also
constitute a final order and therefore is also appealable. (SEE Rule 109
Sec 1 b)
* In the distribution of shares of the heirs, the usual procedure followed
by the court is for the court to ask the heirs to enter voluntarily into a
project of partition.
But if the heirs could not agree among themselves as to the
manner as to how the estate will be distributed, the settlement court
again has enough discretion. It is competent to determine the manner
by which the shares are going to be distributed. (SEE Rule 90 Sec 1)
* After the debts paid and assets are still left for distribution. The
settlement court has authority to determine who the heirs are.
* How to divide the property:
The heirs will submit a project of partition. The project of
partition will then be approved; entered if no appeal is taken from the
order of the court approving the project of partition.
* The order to liquidate is the order of the court to pay off the
obligations. After all the claims are paid, the settlement court will then
determine who the heirs are. Next, the court will issue an order of
distribution. The big problem is how to divide the estate. If the estate
consists entirely of money, there is no problem as long as the forced

53
heirs legitime is not prejudiced. The remedy in case of unliquid assets
then is to agree on a project of partition. If there is disagreement, then
the court will determine.
* QUERY: If the execad failed to deliver their distributive shares
embodied in or pursuant to the project of partition, can the heirs move
for execution?
No. The remedy is not to move for execution under Rule 39. The
remedy is a special civil action for contempt under Rule 71 on the
ground of disobedience to a lawful order of the court.
Under the Rules, in a settlement proceeding, a writ of execution
cannot be directed against execad but a writ of execution can be
directed against the heirs. (SEE Sec 6 Rule 88)
* Again to compel distribution of the respective shares to the heirs, the
remedy is not Rule 39 but Rule 71 particularly the provision on indirect
contempt.
* In ordinary civil action, contempt as a general rule is not available to
enforce a final order. However in settlement proceeding, we can have
the executor or administrator cited in contempt of the settlement
court, if it does not obey a lawful order of the court.
XXII. Order of Closure
* After the order of distribution is issued and a report by the execad
that the distributive shares are already distributed, then the settlement
court will issue the order of closure which is also appealable. The
ORDER OF CLOSURE assumes that the final accounting has been
submitted and approved by the court. The issuance of the order of
closure marks the end of settlement proceedings.
* Before the order of closure is issued by the court, usually the
administrator will submit a final accounting. And in this final
accounting, the administrator will seek the approval of the court for the
payment of administration expenses.
* 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 marks the end of the settlement proceedings.
* If the distributive share has been delivered, the executor will then
move for issuance of the order of closure. Every time an executor
submits an annual accounting (of the income and expenses of
administration of the estate), this must be approved by the court. That
constitutes also a final order and it is appealable. Once the final

54
accounting (that the payment of debts and distribution of shares has
been made) is approved this is also a final order which is also
appealable. This final accounting if entered will also release the execad
of his burden of administration.
XXIII. Multiple Appeals
* In settlement proceedings, this is one instance where several appeals
could be held in one and the same case.
(MASTER: It seems that in multiple appeals in cases of special civil
actions and special proceedings, there is a need for record on appeal.
Note for example that the resolution an issue in stage 1 does not have
to await the resolution of another issue in stage 2 before an appeal can
be made under the same multi-staged special civil action or
proceeding. This principle must be distinguished from the situation or
the rule contemplated in Rule 41 Sec 1 (g) on judgment against several
parties or separate claims etc.)
XXIV. Reopening
* It is possible that an heir is left out or certain properties are
subsequently discovered.
A. Comparison
* In criminal cases, the reopening must be done before the judgment of
conviction becomes final.
* The only difference between the civil cases and settlement
proceeding is that in civil case the reopening as a remedy is available
only after the trial has ended and the court renders judgment.
* In ordinary procedure, reopening is also allowed, it is not expressly
recognized by the Rules of Civil procedure (except that it is recognized
in the Rules on Summary Procedure as a prohibited motion and also an
express mention of it is made in Criminal Procedure {before it becomes
final and executory}, so there is in fact an express mention at least by
the Rules of Court in general) but jurisprudence says it is available. The
time frame is from the time trial has ended until rendition of judgment.
Thus after the judgment has been rendered, reopening is no longer
available. The remedies after rendition of judgment in ordinary
procedure are Rule 37, 38, appeal and 47.
B. Reopening of Settlement Proceeding
* In settlement proceeding, reopening could take place even after the

55
proceedings have terminated, even after the closure issued by the
court has been entered.
- REASON: There should only be one court that should handle the
settlement proceeding.
(MAST: Is this not a violation of res judicata to allow heirs deprived of
shares to be included in the same proceeding that has been entered?)
* QUERY: What if properties belonging to the estate are discovered
after the proceedings are entered?
Again there should only be one settlement court. The remedy is
to reopen. It does not violate res judicata. Because the settlement
court will not touch properties or rights already bestowed and
determined in the original settlement proceeding. The reopened
settlement proceeding will only distribute the new properties.
* An order of closure is also a final order. After entry, here comes a
creditor who tells the court he is not notified of the settlement
proceeding and thus moves for the reopening of the proceedings not
necessarily against the estate but against the heirs. If it is the creditor
who appears he is barred by the Statute of Non-claims. If it is an heir
who appears, he can move for reopening. If we do not allow him to
reopen he might file his own settlement proceeding which is not
against the principle that there should only be one settlement court to
settle the estate.
* QUERY: If the allegation of the person who claims to be an heir, who
was left out, appears to be meritorious, can he file an independent
special proceeding against the heirs? Or can the execad file another
special proceeding to liquidate the newly discovered property?
NO. The remedy is to file a petition for the reopening of the
settlement proceeding or case.
* QUERY: Is there a time frame?
There is no period or time frame given by the Rules. It can be
held even after the order of closure is entered or has become final
executory, or even after a year or two years from the time the order of
closure was entered by the court.
XXV. Conversions
A. Conversion from Testate to Intestate
In probate proceedings when the will is disallowed, the
proceedings will not be terminated instead the testate proceeding will
be converted to intestate proceeding or there will be intestacy. Since
there will be intestacy, the purpose of settlement proceedings being to

56
distribute the property, the property will be liquidated and distributed
accordingly.
B. Conversion from Intestate to Testate
In case the first proceeding is intestate or for the issuance of
letters of administration and then another proceeding is instituted
which is testate or a probate proceeding, meaning the will was
subsequently discovered. The subsequent probate proceeding will have
to be terminated and the will submitted to the court where the first
proceeding was commenced. In effect the first will be converted into a
testate proceeding or probate proceeding. There is nothing wrong with
this procedure because both proceedings have a common purpose
which is liquidation and subsequent distribution of the estate. Still we
follow the principle that the first court which takes cognizance of the
case excludes others without prejudice to the principle that testacy
prevails over intestacy.
(MAST: How do we know that there is another proceeding initiated in a
court? Do we apply the certification of non-forum shopping in special
proceeding? I think this could easily be known since there is publication
and even notice served personally to the persons interested and these
persons interested usually are the ones who institute the proceedings
and has custody of the will. Note however that annotations in the Book
of Regalado have a contrary remedy in the above cited case.)
XXVI. Partition VS Probate
Partition is a special civil action that is at the same time an
action quasi in rem, while probate proceedings is a proceeding in rem.
XXVII. Rule 87
* Action reinvidicatoria or claim for damages for tortuous acts are not
covered by Rule 86 but by Rule 87
- The message in Rule 87 is: the claimant can file a complaint directly
against the execad. Thus, for example the claimant has a claim for
recovery of real property but failed to file an action because the
defendant died. The claimant can file an action reinvindicatoria against
the executor or administrator.
* Rule 87 enumerates certain actions that can be commenced against
the execad. There could be an ordinary civil action where the execad
serves as a representative party as defined under Rule 3. The
complaint identifies the plaintiff. Since it is the execad who is identified
as the defendant, it is necessary that the estate must be duly
mentioned in the pleading, being the real party in interest. (SEE Rule 3
Sec 3)

57

* In case of the receiver or when there is receivership. When a party

wants to file an action against the receiver or when the receiver wants
to commence an action, the approval of the court is necessary in either
or both cases. (SEE Sec 6 Rule 59)
* An execad can be made a defendant even without the permission of
the court. If the execad acts as plaintiff there is also no need to get
permission from the court. (SEE Rule 87)
XXVIII. Attorneys Fees
* If the executor wants to commence an action with the assistance of
lawyer, he can hire him without permission of the court. Suppose the
execad refuses to pay the attoneys fees, the lawyer may file a
complaint for recovery of attorneys fees against the execad. Another
option is that the lawyer may ask the administrator to include his
attorneys fees in the accounting as expenses (of administration) so
that the settlement court may approve it or permit it and eventually
order the payment of the attorneys fees. (SEE Rule 90)
* The SC said that if the executor is himself a lawyer, he will not be
allowed to charge attorney's fees for his services rendered as a lawyer
and as an administrator or executor. (SEE Rule 85 Sec 7)(MAST: What is
the reason? Does the same principle apply to administrator-lawyer?)

ESCHEAT PROCEEDINGS:
I. Nature
* It is not a continuation of settlement proceeding, but an independent
and separate special proceeding.
* Two instances under the Rules:
1. escheat proper; and
2. reversion proceeding;
* Assumes that the person has died; has not left a will; no heirs; but

58
may have debts. (SEE Sec 1 Rule 91)
* This is just an implementation of the Civil Code provision that the
Republic of the Philippines is always an heir of any deceased person
who dies without a will and without an heir. (SEE Art. 1011ff NCC)
* Justification of escheat: The State is an heir as provided in the Civil
Code. In the enumeration of heirs, the State is the last heir.
* Even if there is a will but that will has not been admitted to probate
because of defect in its form, the 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.
* It is a proceeding in rem, since there is no respondent and the
publication requirement is in fact longer than settlement proceedings.
(SEE Sec 2 Rule 91: once a week for 6 successive weeks)
(MAST: It is also binding against the whole world, the only difference is
that the State is the sole heir, there being no other heir.)
II. Jurisdiction
QUERY: Should we not follow the jurisdiction provided in BP 129 with
respect to settlement of estate which is based on the gross value of
the estate?
NO. BP 129 in vesting authority to inferior courts or RTC, as the
case may be, refers only to intestate or estate proceeding. BP 129
does not mention escheat proceeding expressly as among those
covered within the jurisdiction of any court or tribunal. In the absence
of express delegation of jurisdiction to any court or tribunal, then we
apply the general rule that the case is cognizable by the RTC in the
exercise of its general jurisdiction. Therefore the jurisdiction lies within
exclusive original jurisdiction of the RTC.
* QUERY: Do we also follow the jurisdictional principles in settlement
proceedings?
We do not follow. An escheat proceeding is cognizable by the trial
court. The subject is not capable of pecuniary estimation. (MASTER:
There appears to be two reasons, but what is important is that the
jurisdiction lies with the RTC.)
III. Limited Jurisdiction
* In escheat, the court acts in a limited jurisdiction: meaning, issues
which are not related to escheat cannot be resolved validly by the
court. The issue in escheat proceeding is: Whether the State is

59
authorized to take over the estate or property. Rule 10 Sec 5 on
amendment to conform to evidence is thus not applicable.
* In ordinary civil action: The does not resolve a case with a limited
jurisdiction, in the sense that amendment to conform to evidence
under Rule 10 Sec 5 is possible. For example: in an action for recovery
of a loan of 5M filed in the RTC. The issue is non-payment of the loan.
Can this court resolve a different issue of ownership of the piece of
land?
Yes. Amendment to conform to evidence under Rule 10 Sec 5.
IV. When the Owner of Property Alive
A. Unclaimed Balances Act (UBA)
* Q: Will there be escheat proceedings even if the owner of the
property has not died?
A: Yes. In some special laws like, the Unclaimed Balances Act, escheat
proceedings could prosper as long as the conditions imposed by this
law are met.
* The SC ruled that the Unclaimed Balances Law is founded on police
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 deposits which have become dormant ( no
movement: no deposit, no withdrawal) for at least 10 years.
(MAST: Dean Jara asked whether we could consider the interest given
by the bank as a movement of the money deposited. I am of the
opinion that the interest here being given by the bank is not the
movement contemplated by the Unclaimed Balances Act. This is
because the interest is not initiated by the depositor but by the bank.
To be considered a movement, it must be initiated by the depositor
and not by the bank as in case of interest.)
* Basis of confiscating dormant bank deposits:
There is nothing in the Civil Code on this subject since it is a
special law. The justification is in the police power of the State. After
all, these bank deposits will be part of the National Treasury intended
for the use in economic development of the country.
* The UBA requires that all banks submit a report of all dormant
accounts of their depositors to the Central Bank. It is thus easy for the
government to know the dormant accounts. The Solicitor General, in
one and the same proceeding or petition for escheat, may include for
example all dormant accounts deposited in banks located in Manila.
The caption does not identify the depositors because the banks are the

60
respondents. The banks of course dont care at all since the deposits
that will be taken over are not theirs.
(MAST: Why is the bank impleaded as the respondent in Unclaimed
Balances Act? It was intimated that the bank is actually a borrower in a
contract of loan since though the money is called "deposit" the
contract is not really deposit. The bank is impleaded because in case
the money is escheated by the State, it will be deprived of the use of
the deposited money.)
B. Reversion Proceeding
* Another Escheat proceeding; (SEE Sec 5 Rule 91):
Acquisition of property by aliens if prohibited by laws or
Constitution could be reverted to the State by virtue of this escheat or
reversion proceeding.
* In this proceeding we do not assume that the respondent is dead; or
there is no will; it is possible that he is alive;
* The properties here are acquired in violation of the Constitution or
any statute;
* Under the present Anti-Money Laundering Law (AMLA) this is called
forfeiture procedure which is similar to reversion proceeding;
* The proceeding is not necessarily an in rem action, because there is a
plaintiff which is the Republic; or the defendant or respondent who
acquired the property in violation of laws. This is more of a civil action
with elements of escheat;
* There is a particular defendant identified, like a person accused of
having gotten wealth illegally.
III. Filing of Claim
* ... If it turns 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 the
period of 5 years within which to make a claim for the return of the
properties that has been escheated in favor of the government.
* Escheat proceeding is IN REM. There is a requirement of publication,
but what is peculiar is that even if after the judgment on escheat has
been entered, an interested person or an heir can ask for the
reopening or the return of the properties of the estate within a period
of 5 years from the entry of that order or decision of escheat.

61

* QUERY: In Rule 91, it may turn out that the deceased have various
creditors, what is the remedy of the creditors? Can they file a separate
petition for the settlement of the estate or a petition for the issuance of
letters of administration, once the properties have been escheated?
No. The creditor can move within the period of 5 years that the
State pay the indebtedness out of the assets inherited by the State. If
there are enough assets then it may be paid in full. However, if the
assets are not enough, the creditors cannot compel the State to pay
the deficiency. Thus in case of insufficient assets, the creditors cannot
expect full payment.
* QUERY: What if the State or local government to which the estate of
the deceased person was assigned, refuses or neglects to pay the
Creditor of his claim against the estate in the escheat proceeding
made through a motion within 5 years, what is his option?
The remedy of the creditor is to commence a settlement
proceeding. The creditor has personality to commence a settlement
proceeding because he is a person interested in the estate of the
deceased person.
(MAST: This remedy presupposes that a motion has been previously
filed in the escheat proceeding. This is resorted only in case of
unjustified refusal of the State to pay his claim. This is only my opinion,
but there appears to be a irreconcilable conflict with the other query.)
(MAST: What will happen to the escheat proceedings in case a will is
discovered and an heir appears? It seems that when that happens, the
escheat proceedings will be voided if it is still pending since it was
instituted on the assumption that there is no will and that there is no
heir, it loses the basis for the institution.
However, another scenario is that when the escheat has already
become final and executory and the heir appears within the 5 year
period to file his claim: Can he file a settlement proceeding? The Jara
lecture says No since there is a remedy provided by law, that is, to file
a claim in the escheat proceeding. If an heir files a settlement
proceeding, it seems that it is his right and option to do so and in fact
it is only an indication that the escheat proceeding is already moot.
However, the property is already with the State and thus I believe that
the claim within 5 years is the best remedy. At this point, it remains
unclear whether if a claim is filed by an heir or a creditor or any
interested person the escheat court will act as a settlement court in
reverting the property back to the heirs or giving the creditor his
shares. Because if the escheat court will just revert the whole estate to
an heir, without determining whether the heir is indeed the heir and
that there are no creditors, there will be difficulty in the future if a
creditor appears within the 5 year period.
Another scenario is when a will or an heir appears after the

62
period of 5 years within which to file a claim. Is he barred from filing a
petition for settlement of estate? There is no question that the
properties are already with the State and such is already binding on
the whole world. However another question arises: Is the bar of claims
binding on heir who has a will, considering that the right to present a
will does not prescribe? I believe that the fact that there is already an
escheat proceeding, it is somehow determined in that court that there
is reasonable ground to believe that there is no heir and no will
existing. The prescriptive period of 5 years within which to file a claim
serves as a limit on the imprescriptible character of the right to present
a will. The purpose of the Rule on escheat is to put a rest on the status
of a property when the existence of the heirs or will is in great doubt.
The remedy under this view possibly is to file an action under Rule 38
or Rule 47 since there is already a final and executory judgment and
the prescriptive period of 5 years to file a claim has elapsed.
There is a view, that when it is the heir who presents a will and
with or without a claim against the estate in any period, the escheat
proceedings will automatically be mooted if pending and void if already
entered. It was argued that the 5 year period is only a prescriptive
period against creditors and not against heirs who have a will. This
view is consistent with the imprescriptibility of presenting the will for
probate. Thus when there is a will and an heir, probate proceedings
always prevails and can always be commenced.
To reconcile the views, I believe that when it is only an heir
without a will who appears and it is belatedly only after 5 years, he
cannot institute a settlement proceeding and is barred forever. The
case is different when the heir has a will, he has the option of filing
within 5 years a claim or if that is not entertained by the escheat court,
he has the personality to file an independent settlement proceeding.
After 5 years, in consonance with the principle of imprescriptibility he
may always commence a settlement proceeding.)

HABEAS CORPUS
I. Jurisdiction

63

* The jurisdiction over these petitions is given to all courts in our

system.
* In the case of inferior courts, they are given interlocutory jurisdiction
under BP 129 Sec 35: that is if there is a certification that all the judges
in of the RTC in that district are absent.
* QUERY: What courts may entertain petition for habeas corpus?
ALL the courts namely the:
1. Supreme Court: Constitution;
2. CA: BP 129 Sec 9 (1);
3. RTC: BP 129 Sec 21 (1);
4. Family Courts: Law creating Family Courts; (SEE Circular on Custody
of Minor)
5. Even inferior courts in the exercise of special jurisdiction in certain
instances (SEE Sec 35 BP 129);
*QUERY: In the Law creating Family Courts, it is provided that Family
Courts have EXCLUSIVE ORIGINAL JURISDICTION over petition for
habeas corpus involving minors. Does this mean that the SC, CA, and
RTC cannot take cognizance of this petition for habeas corpus involving
minors?
NO. The said courts remain to have concurrent jurisdiction over a
petition for habeas corpus involving minor children, notwithstanding
the provision of the Law creating the Family Courts on its exclusive
original jurisdiction.
REASONS:
(a) As to the Supreme Court: This petition could still be filed with the
SC because it is provided in the Constitution that the Supreme Court
cannot be deprived of its original jurisdiction provided in Sec 5 Art VIII;
(b) As to the CA and RTC: The SC issued a CIRCULAR stating that the
CA and the RTC COULD ENTERTAIN the petition for habeas corpus
involving minors, notwithstanding the provision that the Family Court
has exclusive original jurisdiction over habeas corpus involving minors.
Moreover, the CA and RTC have jurisdiction even if the Law creating
Family Courts is more recent than BP 129.
* We do not observe the principle of hierarchy of courts when it comes
to the applications for the writ of habeas corpus. The writ extends to all
cases where the detention is illegal or there is unlawful restraint.
* Review the applicability of the principle of hierarchy of courts in Rule
65 (express) and in Rule 66 (no mention) in case of concurrence of
jurisdiction.

64

* Even if the petition is filed directly with the SC, the petition will not be
dismissed since the rule on hierarchy of courts is not applicable (no
reason was mentioned by Dean Jara). The SC can just issue an order
directing that the return should be heard by a RTC or CA as provided in
Rule 102 Sec 2.
II. Illegal Detention
* 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.
* 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.
* If the detention is illegal at the time of the time of the filing of the
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 its purpose.
III. Preliminary Citation
* The court can give due course to the petition right away, even if the
respondent is not given the chance to be heard. The court may issue
the writ of habeas corpus right away, if after evaluation of the petition,
the court finds the allegations to be true and correct, that is, the
detention is unlawful and illegal. (SEE Sec 5) If, however, the court has
doubts as to the merit of the petition, then only a preliminary citation
will be issued which is in effect a show cause order of why the writ of
habeas corpus should not issue.
* So if there is doubt arising from the contents of the application
whether the detention is illegal, the court will not issue right away a
writ of habeas corpus. The court will simply issue what is called as a
preliminary citation. It is an order issued by the court directing the
respondent to show-cause why the writ of habeas corpus will (should)
not be issued. (SEE Sec 6)
* There is no summons issued in the petition for habeas corpus just like
other special proceedings. But what is issued is a preliminary citation
requiring a respondent to make a return. The idea of a return is
peculiar to habeas corpus. The return serves as an answer. (SEE Sec 6
and 8)

65

IV. Nature
A. Substantive point of view: Constitution: The SC held that restraint for
purposes of habeas corpus does not only mean physical restraint. It
could also extend to psychological or moral restraint.
B. Procedural point of view: The SC described habeas corpus as a
proceeding that is SIMILAR to an in rem proceeding, but not a genuine
in rem proceeding:
REASONS:
(a) There is a petitioner and there is a respondent;
(b) There is no requirement for publication;
COMPARE:
* The SC said that even if the petition for habeas corpus does not have
the features of the other special proceedings (absence of a respondent,
publication and service upon interested parties) IT IS A PROCEEDING IN
REM. (MASTER: The Old Magic Notes seems to be unsure of the true
nature of habeas corpus proceeding, unlike the categorical statement
in this more recent lecture.)
* The petition for writ of habeas corpus is a very peculiar proceeding.
The SC has held that it can be commenced even if he petition is sent
by telegram to a court. The SC considers this a proper filing. Courts are
not strict with formalities since the proceeding pertains to a writ of
liberty.
V. Return
* The respondent is required also to answer and this answer is called
the RETURN in habeas corprus.
* Two kinds of return:
(a) made by public official: if there is compliance with
requirements of oath, verification, explain the reason
detention and give documents authorizing the detention:
return is PRESUMED to be an evidence of the legality of
detention;

the
for
his
the

(b) made by a private individual: the allegations contained in the

return must be proven by the private individual; (SEE Sec 13)
* The SC said that if the petitioners denied that the detainee has been
released, that is contradictory to what the respondents have submitted

66
to the court in the return stating that the detainee has been released.
It is the duty or burden of the respondents to prove that there has
been actual release. (This is similar to a situation where a defendant
puts up an affirmative defense the burden shifts to him.)
VI. Appeal
* The remedy to challenge a writ of habeas corpus issued by the court
is to appeal from this order.
(MAST: Is there an instance where Rule 65 can be used?)
* The general principle on appeals in special proceedings is found in BP
129: which is by record on appeal within 30 days from judgment or
final order.
* PROBLEM: In case of a petition for habeas corpus, there are
Conflicting Decisions:
- Older decisions: 30 days
- Old decisions: 15 days
- Recent: 48 hrs
* UPDATE: Fortunately, a CIRCULAR was issued by the SC clarifying the
conflicting decisions. It stated that the 48-hour period is the CORRECT
period to appeal. The reason why the SC made previous erroneous
decisions: because the SC did not take into account Sec 39 of BP 129
providing for the 48 hour period in case of an appeal from habeas
corpus proceeding.
According to the SC there is nothing in the Rules that will prohibit
the party to file a motion for reconsideration. And if such motion for
reconsideration is filed the 48 hrs start from the receipt of the order
denying the motion for reconsideration.
The appellant is not required to file a brief. Instead, the parties
are to submit a memorandum. The period (30 days from receipt of
notice issued by the clerk that all the evidence oral and documentary,
is already attached to the record) of submission of said memorandum
is non-extendible; (SEE Rule 44 Sec 10)
* Note that the enumeration in the Rules of Court of special
proceedings is not exclusive. Among those provided by law,
particularly the Family Code, are summary special proceedings for the
annulment of marriage and declaration of nullity of marriage.
In summary special proceedings provided in the Family Code we
do not use the 30-day period or the general rule in special
proceedings.

67
QUERY: So what period of appeal do we use?
The SC has rendered conflicting decisions on this matter. In one
of its decisions it held that the period to appeal is 15 days. In another
decision it held that the judgments in summary special proceedings in
the Family Code are immediately executory (SEE Art. 247 of Family
Code in relation to Rule 41 Sec1 f), thus the remedy is Rule 65. (SEE
Circular Rule on Declaration of Nullity of Void Marriages and Annulment
of Voidable Marriages where in so far as appeal of actions on void and
voidable marriages are concerned Sec 20 is clear on two things: (1) a
motion for reconsideration and new trial within 15 days from notice of
judgment is a precondition; (2) the appeal is by notice of appeal within
15 days from notice of denial of MR and MNT)
* Note that as a general rule in special proceedings enumerated in the
Rules of Court, we apply the 30-day period of appeal, EXCEPT habeas
corpus and custody of children proceedings which follow their different
respective periods. (SEE Sec 19 of AM 03-04-04 SC, which is very
identical to Sec 20 of AM 02-11-10 SC)
(MAST: Add to this list are the summary special proceedings on
annulment of marriage and declaration of nullity which, like custody of
children proceedings, the period to appeal is also 15 days.)
VII. Damages
A. Recovery of Damages Prohibited
* QUERY: If the court finally decides that the petitioner was really
deprived of his liberty or there was unlawful detention, can it award
damages in favor of petitioner and against respondent?
NO. This is not allowed. Even if there is a finding that the
respondent is guilty for violating the right of the petitioner or that there
was indeed unlawful deprivation of liberty, the court does not have
authority in special proceedings to award damages. The court in
special proceedings is always a court of limited jurisdiction. In case of a
petition for habeas corpus, the only power of the court is to make a
finding as to whether or not there is unlawful detention or deprivation
of liberty.
REMEDY: The petitioner or aggrieved party can file an ordinary
independent action for recovery of damages. And there is no time
frame for the filing of such action for damages unlike in the case of quo
warranto. The said action is not barred by res judicata under Rule 39
Sec 47 (b) - in the first place it is a matter that could not have been
tried or even raised because the Rules prohibit it to be raised. (SEE
Secs 16 and 18)
B. Rules 65, 66 and 102: As to the Propriety of Ordinary Independent

68
Action for Recovery of Damages:
(a) Rule 65, mandamus: if the court makes a finding in favor of
petitioner for recovery of damages;
- Independent action: No. The remedy is a motion in the same special
civil action for recovery of damages;
- Res judicata: Yes. The award of damages is a matter that could have
been decided;
- Time frame: None, there is no provision identical to quo warranto;
(b) Rule 66, quo warranto:
- Independent action for recovery of damages is allowed: the Rules
themselves allow;
- Res judicata: None. Since the Rules allow it;
- Time frame: Yes, within 1 year from the termination of the
proceedings;
(c) Rule 102:
- Independent action: Yes. As explained above.
- Res judicata: None. As explained above;
- Time frame: None;
VIII. Comparison: Writ of Habeas Corpus, Writ of Amparo and
Writ of Habeas Data
WRITS OF:

HABEAS CORPUS

AMPARO

DATA

LEGAL BASIS

RULE 102

AM 07-9-12 SC

AM 08-1-16-SC

REMEDY

To all cases of illegal

confinement or detention:
1. by which any
person is
deprived of his
liberty; or
2. by which the
rightful custody
of any person is
withheld from
the person
entitled thereto
(Sec 1)

To any person whose

right to life, liberty and
security is violated or
THREATENED with
violation by an
unlawful act or
omission of a public
official or employee, or
of a private individual
or entity. (Sec 1)

To any person
whose right to
PRIVACY in life,
liberty or security is
violated
THREATENED
with violation by an
unlawful act or
omission of a public
official or
employee, or of a
private individual or
entity engaged in:
1. Gathering
2. Collecting
3. Storing
Of data or
information
regarding the
person, family,
home and

Habeas
Corpus in
FC
AM 03-0404 SC: Sec
20
MAST:
There is no
express
ground, but I
am of the
opinion that
the ground is
provided by
Rule 102
Sec 1: by
which the
rightful
custody of
any person
is withheld
from the
person
entitled
thereto
Note: Sec 1
The Rules

69
correspondence of
the aggrieved party;
(Sec 1)

of Court
shall apply
suppletorily
.

PETITIONER

Sec 3:
By the party for whose
relief it is intended, or by
some other person on his
behalf

Sec 2:
By the aggrieved party,
or by any qualified
person or entity in the
order provided in Sec 2

Sec 2:
General Rule:
- the aggrieved party
Exception:
- in cases of
extralegal killings
and enforced
disappearances by:
1. immediate family
2. in default of no.
1, ascendant,
descendant or
collateral relative
within the 4th civil
degree of
consanguinity or
affinity

MAST: No
mention
again but I
think the
person
entitled to
custody or
claiming
custody Sec
3

PROPER COURTS

Sec 2:
1. SC or any member
thereof;
2. CA or any member
thereof;and
3. RTC , or any judge
thereof;
4. BP 129 Sec 35:
Special jurisdiction of
MTC;

Sec 3:
* Courts where it may
be filed:
1. RTC of the place
where the threat, act or
omission was
committed or any of its
elements occurred;
2. Sandiganbayan or
any of its justices;
3. CA or any of its
justices;
4. SC or any of its
justices;

Sec 3:
1. RTC;
2. Sandiganbayan,
SC and CA: when
action concerns
public data files of
government offices;

Sec 3:
* SC, CA,
Sandiganbayan:
Manila;
* RTC: of the place
where the threat, act or
omission was
committed or any of its
elements occurred;

Sec 3:
* SC, CA,
Sandiganbayan:
Manila;
* RTC
A. Where the
petitioner resides
B. Where the
respondent resides
C. which has
jurisdiction over the
place where data or
information is

Sec 20
1.Family
Court;
2. RTC:
In the
absence of
the presiding
judge of the
FC,
provided
however that
the regular
court shall
refer the
case to the
Family
Court as
soon as its
presiding
judge
returns to
duty;
3. SC, CA or
any of its
members;
Sec 20:
* Family
Court where
the
petitioner
resides or
where minor
may be
found;

* Sandiganbayan, only in
aid of its appellate
jurisdiction

VENUE

Rule 4 Sec 2

70
gathered etc.
All the OPTION of
the petitioner.
EXTENT OF
ENFORCEABILITY

* SC, CA and
Sandiganbayan:
anywhere in the
Philippines;
* RTC: only within his
judicial district

Anywhere in the
Philippines

When to File

Sec 2:
On any day and at any
time
HABEAS CORPUS

Sec 3:
On any day and at any
time
AMPARO
Sec 4:
Exempt

REQUISITES OF
PETITION

Sec 3:
Signed and verified
* Vide the contents

Sec 5:
Signed and verified
* Vide the contents

ISSUANCE OF THE
WRIT

Sec 5:
When it appears ought to
issue: immediately

Sec 6:
When in its face ought
to issue: immediately

SUMMARY HEARING

Sec 12:
Hearing on return;
Adjournment
- seems to be immediate
after receipt of return
Sec 4

Sec 6:
Not later than 7 days
from the date of its
issuance

Sec 7:
Not later than 10
work days from the
date of its issuance

Sec 8:
If the writ cannot be
served personally on
the respondent, the
rules on substituted
service shall apply.

Sec 9:
If the writ cannot be
served personally on
the respondent, the
rules on substituted
service shall apply

Sec 9

Sec 10:

WRIT OF:
DOCKET FEES AND
OTHER LAWFUL
FEES

WHEN NOT
ALLOWED
TO WHOM WRIT
DIRECTED
HOW SERVED

CONTENTS OF

Anywhere in the
Philippines

HABEAS DATA
Sec 5:
Exemption applies
to an Indigent
petitioner only
Sec 6:
Verified written
petition
* Vide the contents
Sec 7:
When in its face
ought to issue:
immediately
* Note however that
there is a provision
of service within
three days unlike in
WOA and WHC
where there is no
such period;

Sec 6
Sec 7:
Service of the writ shall
be made by leaving the
original with the person
to whom it is directed and
preserving a copy on
which to make return of
service. If that person
cannot be found, or has
not the prisoner in
custody then the service
shall be made on any
person having or
exercising such custody.
Sec 10:

* FC: within
its judicial
region
where the
FC belongs
* SC, CA:
Anywhere in
the Phils.

Sec 20:
Verified
petition

71
RETURN

HOW WRIT
EXECUTED AND
RETURNED
DEFECT OF FORM
WHEN RETURN
EVIDENCE, AND
WHEN ONLY PLEA
WHEN PERSON
LAWFULLY
IMPRISONED
RECOMMITTED, AND
WHEN LET TO BAIL
WHEN PERSON
DISCHARGED IF NO
APPEAL
PENALTIES

PERSON
DISCHARGED NOT
TO BE AGAIN
IMPRISONED
WHEN PRISONER
MAY BE REMOVED
FROM ONE

- signed; and shall also be

sworn to if the prisoner is
not produced

- verified written
return;
- period to file cannot
be extended except on
highly meritorious
ground;
- the extension seems to
be through motion
since it is not anymore
a prohibited motion;
- general denial
disallowed

- verified written
return;
- may be reasonably
extended BY THE
COURT for
justifiable grounds;
- general denial
disallowed;

Sec 7:
Clerk of court:
- refuses to issue a writ;
Deputized person:
- refuses to serve the
writ;
Penalty:
Contempt without
prejudice to other
disciplinary actions;
Sec 16:
Respondent:
- who refuses to make a
return;
- makes a false return;
Any person:
- who disobeys or
resists a lawful process
order of the court
Penalties:
1. contempt
2. imprisonment
3. fine

Secs 8 and 11:

Same as WOA

NOTE: a motion to
extend to file a
return is prohibited
under Sec 13 (b)

Sec 8
Sec 9
Sec 13
Sec 14

Sec 15:
If the respondent does not
desire to appeal, the
petitioner shall be
forthwith released
Sec 16:
Clerk of court:
- refuses to issue a writ:
Person to whom the writ
is directed:
- who neglects or refuses
to obey or make return
- makes false return
- refuses to deliver within
6 hrs after demand a true
copy of the warrant or
order of commitment
* Penalties:
1. forfeit to the party
aggrieved the sum of 1K,
to be recovered in a
proper action;
2. contempt;

Sec 17

Sec 18

72
CUSTODY TO
ANOTHER
RECORD OF WRIT;
FEES AND COSTS
DEFENSES NOT
PLEADED DEEMED
WAIVED
WHEN DEFENSES
MAY BE HEARD IN
CHAMBERS

PROHIBITED
PLEADINGS AND
MOTIONS

Sec 19
Sec 10:
Sec 12:
* Defenses may be
heard in chambers,
which is not
available in WOA
Except may be in
Sec 14 (b) IO & (c)
PO on Interim
Reliefs
Sec 11:
- motion for extension
of time to file return
not prohibited

Sec 13
* It appears that
motion to file a
return here is
expressly prohibited
unlike in WOA,
however it seems
that the 5 day period
may be extended
motu propio by the
court, See Sec 10
herein
* It is confirmed in
par. k, that interim
relief orders may
also be availed of in
here as may be
necessary (possibly
TPO & WPO, not
IO & PO which will
be redundant) See
and compare also
Sec 6 especially par.
E and Sec 14 of writ
of amparo;

EFFECT OF FAILURE
TO FILE A RETURN

Sec 12:
- proceed to hear the
petition ex parte

Sec 14
* If you will
compare the
provisions, in WOA
the phrase
"..granting the
petitioner such relief
as the petition may
warrant unless the
court in its
discretion requires
the petitioner to
submit evidence" is

73

SUMMARY HEARING
2

Sec 13

not found.
Sec 15
* This statement is
found in WOA: The
hearing shall be
from day to day
until completed and
given the same
priority as petitions
for habeas corpus.

INTERIM RELIEFS

AVAILABILITY OF
INTERIM RELIEFS TO
RESPONDENT
BURDEN OF PROOF
AND STANDARD OF
DILIGENCE
REQUIRED
JUDGMENT

Sec 12:
1. unless for good
cause shown the hearing
is adjourned, in which
event the court shall make
an order for the safe
keeping of the person
imprisoned or restrained
as the nature of the case
requires;
2. the court or judge must
be satisfied that the
person that the illness is
so grave that he cannot be
produced without danger;

Sec 14

Sec 15
Sec 17

Sec 15

Sec 18

Sec 16:
Substantially the
same as WOA but
with this additional
statement:
Upon its finality,
the judgment shall
be enforced by the
sheriff or any lawful
officers as may be
designated by the
court, justice or
judge within 5
working days
Sec 17:
The officer who
executed the final
judgment shall make
a verified return
within 3 days from
its enforcement
Sec 18

Sec 15 in relation to Sec 3

of Rule 41 and Sec 39 BP
129:

Sec 19:
Rule 45 by petition for
review on certiorari

Sec 19:
Same as WOA

RETURN OF SERVICE

HEARING ON
OFFICERS RETURN
APPEAL

MAST: As already
opined, TRO and
WPO may be
available. We cannot
avail of IO and PO,
because this will be
absurd. The writ of
habeas data is
prayed for similar
purposes as IO and
PO.

Sec 19 of
circular and
RA 8369

74
48 hrs from notice of
judgment appealed from
by ordinary appeal

with peculiar features:

1. appeal may raise
questions of fact or law
or both;
2. period of appeal
shall be 5 working days
from the date of notice
of the adverse
judgment;
3. same priority as
habeas corpus cases

ARCHIVING AND
REVIVAL OF CASES
INSTITUTION OF
SEPARATE ACTIONS
EFFECT OF FILING
OF A CRIMINAL
ACTION
CONSOLIDATION

Sec 20

SUBSTANTIVE
RIGHTS

Sec 24

SUPPLETORY
APPLICATION OF
THE RULES OF
COURT
APPLICABILITY TO
PENDING CASES

Sec 21
Sec 22
Sec 23

Rule 72 Sec 2

Sec 25

Sec 26

Sec 14:
Decisions
and orders
of the court
shall be
appealed in
the same
manner as
appeals from
the ordinary
RTC thus
Rule 41 by
notice of
appeal
within 15
days with
peculiar
feature as
provided in
the circular:
there must
be first a
motion for
reconsiderati
on or new
trial within
15 days
from notice
of judgment;

Sec 20
Same as WOA
Sec 22
Same as WOA
Sec 21
Same as WOA
Sec 23:
* the only difference
to Sec 24 is the
mention in WOA of
a particular law
from which the
substantive rights
arise, the
Constitution;
Sec 24
Same as WOA

75

GUARDIANSHIP
I. Jurisdiction
* The Family Courts (FC) exercise exclusive and original jurisdiction
over the petitions for guardianship.
* Substantive law provided in:
1. Family Code; and
2. Law creating Family Courts Family Courts Act, RA 8369;
* In order to update the guardianship proceedings pursuant to said
substantive laws, an Administrative Circular was issued by the SC. (SEE
AM 03-02-05 SC)
* RTC :
- has jurisdiction over guardianship proceeding involving an
incompetent who is not a minor:
- QUERY: What is the source or basis of the in circular saying that RTC
and not FC has jurisdiction over incompetents?
A: The basis is found in BP 129 Sec 19 par. 7 providing that the RTC
will be exercising exclusive original jurisdiction over all civil actions and
special proceedings that used to be cognizable by the Old or Former
Juvenile and Domestic Relations Court. BP 129 has done away with the
said OLD COURT and decided to transfer the authority over the cases,
which includes guardianship proceeding over incompetents who are
not minors, to the jurisdiction of the RTC.
- SEE definition of incompetent in the Rules:
* FAMILY COURT:
- has jurisdiction over guardianship proceeding over a minor as
provided by the Law creating the Family Court or Family Courts Act, RA
8369 Sec 5 par. b;
- when the incompetent is also a minor then the jurisdiction must be in
the Family Court;
II. Appointment of GENERAL Guardians
* The appointment of a guardian that is exclusively given to a Family

76
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.
* There is no requirement of publication, simply require the court to
serve copies personally to parties named;
* General Rule: There is no need for publication; (SEE Rule 93 Sec 3)
Exception: In case of guardianship over the properties of the minor or
incompetent who is a non-resident, the Rules give authority to the
court to order publication. Thus in this case there is a need for
publication. (SEE Rule 93 Sec 6)
* The General Guardian could be a:
1. over the person only;
2. or over the property only; or
3. both over the property or person;
* There could be two guardians appointed by the same guardianship
court. (SEE Rule 93 Sec 1 and Circular)
NOTE:
Art. 1060 NCC: A corporation or association authorized to
conduct the business of a trust company in the Philippines may
be appointed as an executor or administrator, guardian of an estate, or
trustee, in like manner as an individual; but it shall not be
appointed guardian of the person of the ward.
* QUERY: Can this same order (appointing two guardians) be issued in
a settlement proceeding, meaning to say can the court appoint
administrators of the same estate?
A: Yes, there could be more than one executor or administrator
(execad) in a settlement proceeding. These matters are left to the
discretion of the settlement court. (SEE Sec 6 Rule 78)
* Similarities with execad:
1. an officer of the court;
2. bound to obey the orders of the court;
3. required to file a bond;
4. to submit an inventory of the properties of the ward;
5. to submit an accounting of the properties under his care and
management;
6. can also sell, dispose of, and mortgage the properties of the
ward as long as these things are done always with the approval
of the guardianship court.

77

* Difference with execad:

When an execad is given authority to sell or mortgage properties
of the estate, there is no time limit given for the sale and encumbrance
of these properties.
WHILE in the case of guardians, he must sell the property of a
ward within a period of one (1) year, otherwise his authority ceases to
be effective. He must ask the court for the renewal of that authority.
* If the guardian sells the property of the ward without prior
authorization from the guardianship court, the same will be null and
void.
III. Circular: In Case of a Minor
* The procedure prescribed in the circular is almost an identical
procedure to the settlement of estate: petition states:
1. jurisdictional facts;
2. identity of the ward
3. value of the property of the ward
4. person asking for the issuance of letters of guardianship
* Circular recognizes classification:
1. natural,
2. judicial
3. general,
4. over property,
5. over person,
6. ad litem
7. decisions: de facto guardian?
* Administrative Circular and Rules: Factor in:
- Rule 3 Sec 5 and 18 on guardian ad litem; and
- Rule 14 how summons is served upon a minor or incompetent
* In petition for guardianship of a minor the best evidence of minority
is the birth certificate;
IV. Guardian Ad Litem
* Appointment of Guardian Ad Litem of a minor or an incompetent who
is not a minor:
QUERY: Is the appointment of a guardian ad litem for a minor
exclusively cognizable by the Family Court? Is the appointment of a
guardian ad litem for incompetent exclusively cognizable by the RTC?

78
Principle: Any court before which the principal case is pending
has the authority to appoint a guardian ad litem. The SC ruled that the
appointment of a guardian as litem is only an incident to a principal
action. It is not necessary for anyone of the litigants to file an
independent petition for appointment of a guardian ad litem.
EXAMPLE:
More particularly if the defendant is an incompetent, an inferior
court can possibly take cognizance. This is if the recovery of damages
is only for 250K for an act of negligence of a minor.
* The appointment of a guardian ad litem is only for a very limited
purpose for the protection of the interest in the particular case. After
case has ended then the authority also ends.
* The appointment of a guardian ad litem: assumes or presupposes
that there are no parents (natural guardians) or judicial guardians.
Thus, if there is already a judicial guardian appointed by the court, it is
improper for a court to appoint a guardian ad litem.
V. Evidentiary Matter: Rule on Object Evidence
* In the trial of a petition for guardianship over a minor or incompetent
who is not a minor, the law mandates the application of the Rules of
Evidence, particularly the RULE ON OBJECT EVIDENCE. The law requires
that the minor himself or the incompetent himself must be present.
This is for the court or judge to easily ascertain whether the minor or
ward is indeed a minor; or the incompetent or ward is really an
incompetent who is not a minor. (SEE Rule 93 Sec 5; AM 03-02-05 SC
Sec 11, and 12: in case of non-resident minor the court may dispense
with the presence)
VI. Rule 93 on Incompetents
A. Filing of the Petition:
* The petition will allege that there is an incompetence and that the
person is:
1. suffering from civil interdiction;
2. a hospitalized leper;
3. a prodigal;
4. deaf and dumb who are unable to read and write
5. insane, even though they have lucid intervals;
6. even if not insane but by reason of age, disease, weak mind, and
other similar causes, cannot without outside aid, take care of

79
themselves and manage their property, becoming an easy prey
for deceit and exploitation;
(SEE Rule 92 Sec 2; Civil Code Art. 38)

B. Contest as to Incompetence
* In case of petition for guardianship of an incompetent, there should
be a declaration by the court that he is an incompetent; (SEE Sec 5
Rule 93)
* It is possible that nobody will appear to contest the allegation in the
petition that there is an incompetence. However, it is also possible
that an interested person will file an opposition contesting the
allegation that the proposed ward is incompetent. If there is an issue or
factum probandum as to the incompetence of the proposed ward, it
must be first adjudicated by the guardianship court. If the court says
that the proposed ward is incompetent, then the court can proceed to
the appointment of the guardian. (SEE Secs 4 and 5 Rule 93)
QUERY: Is the order of the court adjudicating that the proposed ward
is indeed an incompetent an interlocutory order?
NO. The order of the court declaring the proposed ward as indeed
incompetent is a final order, although there are other proceedings to
be taken by the court like the appointment of the guardian. The order
being a final order, it can therefore be appealed. (SEE Sec 1 e Rule
109)
C. Rule of Evidence: Presumption that the Person is Capacitated to Act
* The trial court is bound to follow the presumption that a person is
capacitated to act: presumption on competency.
It is the duty of the petitioner to prove to the court that the
proposed ward is really incompetent.
QUERY: What is the quantum of proof to defeat the presumption of
competence?
It is clear and convincing evidence, not preponderance of
evidence. The reason is that there is a presumption in law that the
person is competent. (SEE Rule 131 Sec 3; Art. 37 NCC)
* Just like in ordinary civil actions, when there is an allegation of fraud
or bad faith, the presumption in law is that the parties to the contract
have acted in good faith. The quantum to destroy the presumption of
good faith is always clear and convincing evidence.

80

VII. Issuance of Notice and Service Thereof

* QUERY: Upon the filing of petition, will the court issue summons to
acquire jurisdiction over respondent?
No. The petitioner does not implead a particular respondent. This is
because a guardianship proceeding is a proceeding in rem.
But unlike settlement proceedings where notice and publication
requirements are jurisdictional, the law does not require the court in
guardianship proceeding to issue an order setting the case for hearing
which should be published. The law only requires personal notice which
must be served upon ward himself (if he is at least 14 years of age) or
persons interested. The guardianship proceedings do not require
service of summons, there is just a notice to interested persons. (SEE
Sec 3 Rule 93; AM 03-02-05 Sec 8)
* Guardianship is an in rem proceeding since it concerns the STATUS of
the person under Rule 39 Sec 47.
VIII. Guardian has already been Appointed
A. Comparison: Settlement Proceeding and Guardianship
(1) Settlement:
* Query: Are there substantial differences as to the duties with respect
to the settlement of indebtedness of a ward and the settlement of
indebtedness of the estate?
There is a difference.
Recall that in settlement proceedings, it is the duty of the creditors
of the estate arising from a contract express or implied, to submit or
file their claims in the intestate or estate court within the period of
Statute of Non-claims, otherwise it will be barred. It is the estate or
intestate court that determines the validity of claims. If the court
determines the claim as valid, even if the order approving the claim
has been entered, the creditor cannot move for execution. The creditor
must wait for the court to issue an order directing the execad to pay
the indebtedness. The court decides the merit of a claim for money
presented to the court within the statute of limitations. However in
case of claims for recovery of personal or real properties, these
matters must be decided in a separate proceeding or action.
WHILE
Guardianship:

81
* QUERY: Can the guardianship court approve or disapprove the
claims against the ward?
NO. Although it is also the duty of the guardian to pay and settle
indebtedness against the ward, in guardianship cases there is no such
thing as Statute of Non-claims. If the creditor has a claim against the
ward, he cannot file said claim in the guardianship court. The
guardianship court has no authority to pass upon merits of the claim.
The remedy is to file an ordinary case in court against the guardian in a
court of general jurisdiction (which may also be the same guardianship
court but now in the exercise of its general jurisdiction). If the minor or
incompetent has no guardian, the creditor may file a complaint against
the minor or incompetent and then seek for appointment of a guardian
ad litem. (SEE Sec 3 Rule 96; Rule 3 Sec 18; AM 03-02-05 Sec 17 b)
NOTE:
The minor may be sued because he can enter valid contracts like
a contract of sale when the minor buys necessaries. (SEE Art. 1489
NCC) Most of the contracts entered into by a minor are voidable,
nonetheless he can be sued as a minor since they are valid until
annulled. (SEE Art. 1390 Sec 1 NCC)
* Under the Rules the representative party must implead the real
party-in-interest. (SEE Rule 3 Secs 3 and 5)
* The creditor can move for execution in case of final and executory
judgment against the guardian as representative of the ward in an
ordinary case of recovery of sum of money. Thus the guardian is not
immune from execution (but note the court that will execute is not a
guardianship court). In settlement proceeding, the estate is immune
from execution in case of claim for money under Rule 86. (MAST: Note
that the execad is not immune from execution when the claim is for
real or personal property or for damages arising form tort under Rule
87)
* QUERY: If the ward is sued, the guardian must represent the ward.
And if guardian is convinced that there are properties with third
persons, can the guardian ask the guardianship court to order the third
person to appear for examination? Yes (SEE Rule 96 Sec 6; AM 03-0205 Sec 18 c), but if the third person says he is owner can the
guardianship court conduct a trial?
No, the guardianship court is a court of limited jurisdiction. It can
only resolve incidents pertaining to guardianship. It cannot resolve
dispute over title.

82
(2) There is a need to compare the power of guardian and the power of
the execad to convey or dispose properties. Rule 89 vs Rule 95, thus
must be compared.
In settlement of the estate, there is always a need for the execad
to get the approval of court. The same is true with guardianship
proceedings, the guardian must ask the consent of the guardianship
court to be able to convey, dispose or encumber the property of the
ward.
But in case of conveyance, disposition or encumbrance by
execad of the properties of the estate, Rule 89 is more detailed and
specific. When properties of the estate are to be sold, personal
properties must be sold first as a general rule. Personal properties
cannot be encumbered, the rules frowns on this procedure (MAST: but
the settlement court has wide discretion to allow encumbrance if it will
benefit the estate). The personal properties must always be disposed
of thru a contract of sale. However, real properties may be sold or
mortgaged in order to raise funds for the estate. Thus, real properties
may be encumbered not necessarily sold in order raise funds for the
payment of debts.
In guardianship proceedings there is no such specific
requirement. The guardian may file a petition asking for authority to
convey, sell, dispose of or encumber either personal or real properties.
(Rule 95 Sec 1ff; AM 03-02-05 Secs 19-22)
(3) If the execad files a petition asking for authority to sell or
encumber property, the said petition can be defeated or stopped right
away by simple expedient of filing a bond by an heir in estate or
intestate court. (SEE Rule 89 Sec 3)
In guardianship proceeding, if the guardian files a petition
seeking authority to sell or encumber the property of the ward, this
cannot be stopped by filing a bond of an interested person.
In case of settlement of the estate, there is a need to hear this
petition for authority to sell or convey giving notice to ALL interested
parties. Even if the order setting the case for hearing at outset has
already been published, even if notice to creditors has already been
published; if the execad has a petition for authority to sell or encumber
properties of estate, the court can still require publication of the order
setting this petition or motion for hearing. If this publication
requirement is not complied with, being jurisdictional, then the
proceedings taken thereafter is void. (SEE Rule 89 Sec 7 b)
In guardianship, the guardianship court has no power to say that
said order setting the hearing for the petition for authority to sell must
be published. It is enough that personal notice of the hearing of this
petition is given to the interested parties. (SEE Rule 95 Sec 2; AM 0302-05 Sec 20)

83
NOTE:
QUERY: In the care of the ward, the needs should be financed by the
assets of the ward, can the guardian sell and encumber the properties
to meet these finances?
Yes, with the permission from the guardianship court. The
guardian should file a correlative petition asking for leave to sell. There
shall be notice to ward, incompetent or next of kin. Then the court
finally issues the order. Is the guardian duty bound to sell the property
in public auction? No. There could be public sale or also private sale,
depending on the appreciation of the guardian of the market forces.
(SEE Rule 95 Sec 4; AM 03-02-05 Sec 22: there is mention only of
public sale, but there is use of the word may which does not preclude
private sale)
(4) Settlement:
In case of settlement proceeding, the authority to sell and
encumber does not have a fixed duration, it can be for an indefinite
period of time. This is as long as the execad complies with the other
requirements in the matter of conveyance or disposition of the
property of the estate. (SEE Rule 89)
WHILE
In guardianship proceeding, the duration of the authority to
sell or encumber properties is limited to a period of 1 year. After 1
year, the authority expires by operation of law unless the court
extends its effectivity. (SEE Rule 95 Sec 4)
NOTE:
The authority to sell is only for a period of one year, if it expires
the authority is revoked by operation of law. In such a case the remedy
is to file another petition asking for a new authority.
(MAST: There appears to be a conflict as to whether the court is
allowed to extend the one year period upon motion or a new verified
petition is necessary. But reading the Rules, I believe that a new
petition should be filed, for there is no showing that a motion to extend
is expressly allowed. Besides the petition must be verified and if we
allow that the period is extended through a mere motion, it will defeat
the purpose of the law which is to limit the authority of the guardian.
Nonetheless, if the one year period has not yet expired and there
is a motion to extend, then the court may grant such motion since
there is a period to extend which has not yet expired. A different case
obtains when the period has expired, since by operation of law there is
no period to extend anymore.)
(5) If the interested parties do not agree with the appointment of the
guardian there can be an appeal. And unlike in settlement proceedings

84
there is no similar provision providing for a special guardian. Some
cases have ruled that the appointment of the guardian is immediately
executory as long as he files a bond and other conditions complied
with, and thus the guardian will undertake his duties despite the
appeal. Granting that the court believes, (since this case is not
included under Rule 39 on immediately executory orders) that the
decision is not immediately executory, also under Rule 39 there can be
an execution pending appeal. There can be reasons that can justify this
like: there must be someone to take care of the interests of the ward
and the rules of guardianship are designed to benefit the best interests
of the ward. The guardian is of course required to file a bond. ????
* In some instances there is no need to file a bond. (MASTER: The
instance that there is no need to file a bond I think refers to a bank
which acts as a trust corporation. As a trust corporation it can be
appointed as a guardian over the property but not over the person of
the ward. The bond is not anymore necessary because the bank has
already filed a bond with the Central Bank when it applied for a license
to act as a trust corporation.) The duties of a guardian are somewhat
similar to execad or any person who occupies a fiduciary position.
B. Summary

STATUTE OF NON CLAIMS

DETERMINES
THE
VALIDITY OF CLAIMS OF
CREDITORS
PERSONAL
PROPERTIES
SHOULD BE SOLD FIRST
BOND
DEFEATING
A
PETITION
FOR
AUTHORITY TO SELL
PUBLICATION OF ORDER
SETTING THE HEARING OF
PETITION
FOR
AUTHORITY TO SELL
DURATION OF AUTHORITY
TO SELL OR ENCUMBER
PROPERTY
SPECIAL ADMINISTRATOR

ESTATE
COURT
There is
Yes

OR

INTESTATE

Yes, generally

GUARDIANSHIP COURT
None
No authority

Yes

No requirement, it can either

be real or personal
No

Yes

No. Notice sufficient

Period is indefinite

1 year from granting of order

There is concept of Special

Administrator

There is no such thing as

Special Guardian

IX. Termination
* The guardianship should automatically end when the ward reaches
the age of majority. This is so even if no order is issued saying that the
guardianship is terminated. By operation of law the ward is deemed

85
emancipated and the guardian loses power. This does not mean that
the guardianship proceeding is already closed, the guardian must still
submit a final accounting; (AM 03-02-05 Sec 25)
* In case of guardianship by reason of incompetency, the incompetent
or the guardian files a petition with the guardianship court to declare
his competency. The petition is not a separate proceeding but is
considered as a continuation of the guardianship proceeding. If the
court declares the ward competent, the guardianship ends. (SEE Rule
97 Sec 1)
*The quantum of evidence to declare incompetency is clear and
convincing evidence. To defeat a disputable presumption, the evidence
must be clear and convincing evidence.

X. Independent Special Summary Proceeding for Approval of

the Bond
There is a mention in the Rules of a summary special proceeding
for the approval of the bond. This applies when the assets of the ward
is worth at least 50,000. It is a separate independent summary
proceeding where the parents petition for the approval of the bond so
that they can manage the property of minor. (SEE AM 03-02-05 Sec 16
and Family Code Art. 225)

86

ADOPTION
I. ADOPTION LAWS
* Do not rely on the Rules of Court instead rely on Domestic Adoption
Act (DAA) and the Inter-country Adoption Act (ICAA).
* As the title of the proceeding, this case generally covers only minors.
It is in exceptional circumstances that there could be an adoption of a
person who is already of age. (SEE RA 8552 Sec 8; AM 02-06-02 SC Sec
5)
* There is a provisional remedy now recognized by the said two laws on
adoption in relation to this proceeding. So a petition for adoption may
be filed and in that petition there could be a prayer for TEMPORARY
CUSTODY OF CHILDREN.
* Procedurally contents of petition in case of settlement proceedings
are similar with the contents of the petition for adoption:
1. jurisdictional facts;
2. identify persons involved;
3. Value of the estate;
4. Adopter;
5. Adoptee;
* QUERY: Do we allow adoption that is NON-JUDICIAL in character that
is we allow adoption even if there is no court proceeding at all?
Yes, under our present statutes. Under the Inter-country Adoption

87
Act, adoption may be authorized/decreed by the court. (SEE RA 8043
Sec 10; AM 02-06-02 SC Sec 28)
* If it is judicial, the court that has exclusive original jurisdiction will be
the Family Court, because this is a family related case.
* The court relies heavily upon the report of the social worker, without
these reports the court will not resolve the petition. The child study
report and home study report and trial custody, practically forms part
of the jurisdictional requirements. (AM 02-06-02 SC Secs 13, 15 and
16)
* The annexed consent documents are also required. They should be
annexed, because if they are not annexed the court will not acquire
jurisdiction; (AM 02-06-02 SC Sec 11)
* The privilege to adopt extends to aliens, can file a petition if he
continuously resides for 3 years in the Philippines until the judgment is
entered. By the phrase until the judgment is entered implies that the
alien may be compelled to stay for an undetermined number of years.
This is a strict requirement which discouraged aliens from adopting.
The government thus came out with the administrative Inter-country
Adoption. (AM 02-06-02 SC Sec 4 {2})
* Both in domestic and inter-country, we find penal provisions
governing Child trafficking and other violations and penalties. (RA 8552
Sec 21, 22; RA 8043 Sec 16)
* Comparison of Guardianship and Adoption:
VENUE
PUBLICATION

PARTY

GUARDIANSHIP
Residence of a minor
or incompetent
Not required, only the
requirement of giving
notice to the parties

ADOPTION
Residence
of
the
adopter
Required to enable the
court
to
acquire
jurisdiction (AM 02-0602 SC Sec 12; notice
that
furnishing
of
copies is discretionary
except in case of
change of name of the
adoptee the Solgen
must be notified
Not
necessarily
a Generally a minor,
minor, he could be a except in exceptional
person of age as long situations where our

88
as he is incompetent

law allows a person

who is already of age
to be adopted.

A. Domestic Adoption Act 1990:

- the procedure is always judicial in character
- the adoptee need not be a Filipino citizen; may be a minor or of legal
age, or may even have a spouse;
B. Inter-Country Adoption Act:
- purely administrative
- must be a Filipino citizen; must be a minor
- the law requires that there must be a certification that the adoptee is
a legally free child, that is available for adoption;
NOTE:
* The Inter-country Adoption Board (ICAB) is a quasi-judicial body.
* Must always be a minor, a Filipino and a legally free child: he has no
more parents, a declaration that he is a legally free child; (SEE AM 0206-02 SC Sec 29; RA 8043 Sec 8)
* What is filed in the ICAB is simply called an application; (RA 8043 Sec
10; SEE however AM 02-06-02 SC Sec 28 which used the word verified
petition)
* Practically the application can be filed abroad. There is no
requirement of period of stay in the Philippines. The matching will be
undertaken by the agencies of the Philippine and foreign government.
If the ICAB determines that the adoption is for the benefit of the child,
the adopter is given the permission to bring out the proposed adoptee
from the Philippines. The alien must go here in the Philippines. There
is no decree of adoption issued by the ICAB. (SEE RA 8043 Sec 11)
* QUERY: The alien brings out of the country the minor. And the alien
and the minor is now the beyond jurisdiction of our courts. It is possible
that the alien might abuse the minor and we cannot do anything about
it. However, if he really takes care of the minor, then who will issue the
decree of adoption?
The foreign court issues the decree of adoption. (SEE RA 8043
Sec 14)

89
C. Resort to ICAA if DAA Fails is Possible
* QUERY: If in domestic adoption act the Family Court did not render a
decree of adoption, can the petitioner or adopter resort to the
provisions of Inter-Country Adoption Act?
Yes. In fact under the law, if the Family Court in a domestic
adoption proceeding denies the petition, one of the privileges given to
the Family Court is to study if adoption can be had under the provisions
of the Inter-Country Adoption Act. (AM 02-06-02 SC Sec 32; RA 8043
Sec 7 and 10)
* If an alien files a petition for adoption under the Domestic Adoption
Act and the FC analyzes and concluded that it will not grant the
petition, the FC will not dismiss the petition but will refer the case to
ICAB;
II. Publication Requirement
- must be strictly complied with otherwise the court will not acquire
jurisdiction over the petition for adoption;
- in the order to be published or at least in the caption of the case the
complete and correct name of the person to be adopted must be
specified;
- this complete and correct name is contained in the Office of the Civil
Registrar.
(SEE AM 02-06-02 SC Sec 12)
III. Policy of the State
Reading the Domestic Adoption Act and the Inter-country
Adoption Act, the trend seems to be that every interpretation of these
laws should be in favor of the adopted. So the SC has given the rule
that procedural laws should not be strictly applied and interpreted as
long as the interest of the adopted are well protected.
* The policy of the state is to apply the laws liberally in favor of the
adoptee that will benefit the adoptee whether under the provisions of
DAA or ICAA. (SEE RA 8552 Sec 2; RA 8043 Sec 2)
III. Revocation or Rescission of the Decree of Adoption
* The court that has given the decree of adoption is also the court that
has the authority to revoke or rescind that decree.
* Under the present law only the adoptee has the right to seek for
rescission. (SEE AM 02-06-02 SC Sec 19)

90
* Conflicting Jurisprudence on the Availability of Independent Petition
for Revocation of Decree of Adoption:
In some cases, the proceedings for the revocation of adoption is
considered as a continuation of the adoption case. But in other cases,
the SC said that there may be an independent petition for revocation of
a decree of adoption.
RESOLUTION: But this does not seem to be important anymore
because the Family Court has the authority to revoke or set-aside a
decree of adoption that has been previously given.
* QUERY: Should he file it with the same adoption court?
No. This is a proceeding different from the decree of adoption,
the petition should be filed in the court located at the residence of the
adoptee. (MASTER: From the reading of the AM 02-06-02 SC Secs 1925, it appears that the petition for rescission of adoption decree is an
independent proceeding. Therefore the conflicting decisions have
already been resolved by the Circular in favor of the independence of a
petition for revocation or rescission of adoption decree.)
IV. Prohibition on Joinder in Case the Petitions are Governed by
Different Procedures not Followed
* But there is a provision not applicable in any other special
proceeding, or for that matter in ordinary civil action or special civil
action.
Under the AM 02-06-02 SC Sec 7, in compliance with Domestic
Adoption Act three different proceedings could be joined in the same
petition:
1. adoption;
2. change of name;
3. correction of entries;
* if the court wants: a petition for declaration of adoptee as an
abandoned or neglected child;
The general rule on joinder of causes of action in Rule 2, is that
joinder is allowed subject to several limitations to the privilege of the
person to have joinder of causes of action. In ordinary actions, if the
causes of action are governed by different procedures there can be no
joinder.
However, the law expressly allows joinder of different petitions even
if they are governed by different procedures. The SC and the laws
seem to have ignored the basic principle when it comes to joinder of
causes of action: that causes of action cannot be joined if they are
governed by different procedures.

91

V. Petitions Embodied in the Same Petition

* In a petition for change of name, embodied in the same petition,
there can be a petition for substantial change of a name, not only
change of name because of clerical error.
NOTE:
When there is a decree of adoption, the surname of the adoptee
is changed even without a specific order allowing the use of the
surname of the adopter. Note that the provisions refers only to
surname, there must be a petition for change of name as to first name.
* In the petition for correction of entry, embodied in the same petition,
like a correction of entry in birth certificate; the correction is allowed
even if it is not simple clerical error, the change or correction may be
substantial.
* QUERY: If petition for adoption could embody different petitions
governed by different procedures, should the court comply with all
the requirements of each petition?
Yes. Otherwise if the jurisdictional requirements of the petition
for adoption are only complied with, the court acquires jurisdiction over
the petition for adoption, but not over the other petitions.
* JURISDICTIONAL AND MANDATORY REQUIREMENTS:
A. In case of adoption:
- the petitioner is mandated to submit the written conformity of the
adoptee; of the biological parent if they could be found; written
consent legitimate children and adopted children of both the adopter
and the adoptee, even the illegitimate children if they are living with
the adopted (AM 02-06-02 SC Sec 11)
- notice of hearing to be served upon the interested parties which
should be published once a week in three weeks; (SEE AM 02-06-02 SC
Sec 12)
B. Change of Name
SAME AS 99 PLUS:
Rule 103: publication is also required in the caption of the
petition, the name that appears in the certificate of birth which is
sought to be changed and all the aliases, should be mentioned in the
caption of the case and order which is required to be published. The
court will not acquire jurisdiction in so far as change of name is
concerned, if there is any omission.

92

C. Correction of Entries
SAME AS 99 PLUS:
Rule 108: Expressly required that it should be filed in the place
where local civil registry is located. If not complied with, there is no
acquisition of jurisdiction is so far as this aspect. The local civil
registrar must be impleaded as a defendant and again there is a
separate publication

CUSTODY OF MINORS
I. Independent Proceeding for Custody of Minor
A. In Rule 99 the Title is: Adoption and Custody of Minor
B. In the circulars, custody of minor is treated as an independent
proceeding and it could even be treated as a provisional remedy. (SEE
A.M. No. 03-04-04 SC, Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors)
C. In cases of annulment of marriage and declaration of nullity, the
temporary custody of minor is treated as a provisional remedy. (SEE
A.M. No. 02-11-10-SC, Sec 5, Sec 21, Rule on Declaration of Void
Marriages and Annulment of Voidable Marriages)
D. Unlike Adoption, in petition for custody of children as an
independent proceeding:
1. there is a plaintiff and there is a defendant; (Sec 2)
2. there is no requirement of publication;

93
3. which seems to be that custody of minor is not a proceeding in
rem
4. the court issues a summons addressed to the respondent
requiring him to answer for a very short period of 5 days; (Sec 5)
5. there is no declaration of default; (Sec 9, ..or expiration of the
period to answer)
6. there is also a requirement for pre-trial, (Sec 9)
7. there is also a requirement where the parties submit the case for
mediation; Note that this topic of mediation is not mentioned in
other special proceedings; (Sec 12)
8. the rule on custody of minors also includes petition for habeas
corpus involving minors;
9. there is a provisional remedy of support pendente lite or after
trial that support be given permanently to the minor subject of
the litigation; (Sec 18)
10.
the period to appeal is only 15 days; (Sec 19)
NOTE:
That in BP 129 the general rule is 30 days. Circular also says that
in petition for custody of minor an appeal can not be had unless an
appellant files a motion for reconsideration or new trial, thus it is a
condition precedent for the perfection of an appeal. In Rule 65 there
must first also be a motion for reconsideration before resorting to Rule
65.
CHANGE OF NAME
* The SC has already settled that the remedies provided in Rule 103
and Rule 108 could be availed of in one and the same proceeding. The
only requirement is that the procedural requisites in these two rules
must be satisfied.
* For purposes of Rule 103, the name that could be changed, that is
judicially, is the name that is written on the certificate of birth at the
office of the local civil registrar.
* The SC has ruled that with respect to the first name or proper name,
that is almost subject to the discretion of the parents. But when it
comes to the surname, it is the law which determines the surname that
could be used by a person. The law requires that the surname must be
the surname of the legitimate father under our civil law. (SEE Art. 365ff
NCC)
* For purposes of Rule 103 a name that can be changed could either be
the surname or the first name, but the change must always be with

94
sufficient justification.
I. Jurisdictional Requirements: RULE 103
A. The first requirement is in the petition itself, in the caption of the
petition and in the caption of the order to be published, all the names
must be correctly written.
In the caption itself the name as it appears in the certificate,
new name and the aliases must appear in the caption. If this is not
met, the court acquires no jurisdiction.
B. Suppose the caption complies strictly with the first jurisdictional
requirement, the other essential requirement is the notice of
hearing. According to jurisprudence, the notice of hearing must also
contain all the names.
NOTE:
* If there is any error or change or difference between the caption and
the notice of hearing, the court will not acquire jurisdiction over the
petition, the birth certificate must be copied correctly (including the
error).
* Supposing that the change of name which the adopter seeks in the
petition for adoption is not a substantial change in name but a
correction of a clerical error or innocuous error in spelling, this will now
be covered by Rule 108.
II. In Rem Proceeding
* Petition for change of name is another proceeding IN REM:
REASONS:
(1) there is a requirement for publication (jurisdictional); (SEE Sec 3)
(2) although there is no respondent, the office of the Solicitor General
should always be notified and it is the practice of the Solicitor General
always to oppose any petition for the change of name. (SEE Sec 4)
III. Grounds
* One of the grounds is if the name is dishonorable or if the name is
hard to write or pronounce. But if the only reason is given for the
change of name is that it could subject the petitioner to derision or

95
laughter whenever he uses the name, the SC ruled that this may not
be enough justification for the change of name.
* Name that could be changed is first name, middle name or surname:
this is just a privilege: policy is not to allow unless for good reasons:
1. the petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to write or
pronounce;
2. The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that first name or nickname in the community; or
3. The change will avoid confusion;
(SEE 9048 Sec 4)
* Important condition imposed by SC: petitioner must show that the
petition will not prejudice any third person.
IV. Rule 103 VS Rule 108
* 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:
1. venue:
- 108: must be filed in the locality where the office of the local civil
registrar is located;
- 103: must be filed in the place where the petitioner has resided for at
least 3 years
2. parties:
- 108: the local civil registrar must be impleaded as defendant or
respondent
Reason: Rule 108 Sec 3 considers the local civil registrar as an
indispensable party.
V. Adversarial Proceedings
* The proceedings in 103 and 108 could be adversarial (meaning there
are parties who go to trial and will introduce evidence to demonstrate
the truth of their allegations) depending on the change that is sought
in Rule 108.
- if the change is substantial then the proceeding must be adversarial;
- otherwise it will be summary in character;
(SEE Rule 103 Sec 4; Rule 108 Sec 7)

96

CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL

REGISTRY
I. Requirements (assuming it is embodied in a petition for
adoption)
(A) It is required that the local civil registrar must be impleaded as a
defendant and the petition must be filed in the place where the
local civil registrar holds office;
(B) It is required that this defendant must appear in the caption
notwithstanding the fact that petition for adoption does not have a
defendant;
(C) We satisfy the jurisdictional requirements of:
a. adoption: before the Family Court where the adopter
resides;
b. Rule 108: place where civil registry is located;

97

NOTE:
We must see to it that the venue of the petition for adoption and
Rule 108 is the same, otherwise we cannot join them. We can join them
as long as the residence of adopter and the place where the local
registrar holds office are the same. Otherwise a separate petition must
be filed.
(D) The notice of hearing is published;
(E) There is a need to give notice to the Solicitor General. Which is not
needed in a petition purely for adoption;
(F) The errors that should be taken up are innocuous or clerical errors;
NOTE:
In the enumeration of entries that could be changed, we find the
word adoption: reason for SC to think that Rule 108 can be joined with
a petition for adoption;
II. Nature
* Looking at historical background, Rule 108 was originally designed
solely for the correction of clerical errors. So the SC ruled several times
in the past that when the correction involves substantial matters, Rule
108 is not the correct remedy.
* The decisions of the SC modified effectively the principles given
under Rule 108, even substantial errors may be corrected by Rule 108.
If there is a petition which seeks substantial correction of entries, there
must be an adversarial proceeding. If the correction is only clerical or
innocuous errors the summary proceeding applies where plain
affidavits are enough. In other words, there must be an actual trial and
the parties are given the opportunity to present evidence. In such a
case Rule 30 applies.
* Republic vs. Valencia (141 SCRA 462): Change of entry from
Chinese to Filipino, this is really not a substantial change in the sense
that a Chinese will become a Filipino; the start of a radical change of
Rule 108; SC held that Rule 108 can also be used in substantial change
of an entry provided there must be an adversarial proceeding;
* Lee vs. CA (367 SCRA 110): from legitimate to illegitimate, this is
substantial change because it will affect the hereditary rights of the
parties: The SC allowed the change in accordance with the case of
Valencia:

98
NOTE:
Obiter Dictum: The SC said that under present conditions there
could also be change of sex in the entries. If a person is a gay he
converts himself into a true woman he can apply for change of entry of
Sex from male to female. (MASTER: During recitations, it was intimated
that there is a recent case that abandoned this obiter dictum.
Therefore a transsexual cannot petition for the correction or
cancellation of entries regarding his or her sexuality.)

RA 9048
AN ACT AUTHORIZING THE CITY OR MUNICIPAL REGISTRAR OR THE
CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL
ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN
THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER, AMENDING
FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL CODE OF THE
PHILIPPINES
I. Nature
* Allows the change of name administratively, only with respect to
clerical error. (SEE Sec 1)
* We now have here a statute authorizing non-judicial or administrative
correction of clerical errors that are contained in documents under the
control of the civil registrar. However it seems that the fees collected
by the local civil registrar are double the fees that are going to be
spent if the petitioner simply go to court and resort to Rule 108
applying summary procedure.
* In Lee vs CA, the SC seems to be of the impression that in case of
request of clerical change of name, the local civil registrar has
exclusive authority. So it appears that the court is now deprived of its
jurisdiction under Rule 108. But if you read the law, there is nothing
mentioned that the authority of the local civil registrar is exclusive.
Thus, there is reason to believe that the party has still the option of
filing either with the courts under Rule 108 or administratively under
RA 9048. (MASTER: Note that Herrera and Regalado have a different
opinion)
(MASTER: Adopting the view of Dean Jara that with respect to clerical
or innocuous errors an applicant has two options, implications arise:
FIRST, in case a final and executory decision is already rendered under
RA 9048 and the petitioner failed to have a favorable decision, can he
file a verified petition under Rule 108? In other words, can there be res

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judicata, considering that one proceeding is quasi-judicial and the
other judicial?
In Administrative law, it is now well settled in our jurisprudence
that the decisions and orders of administrative agencies like the local
civil registrar under RA 9048 rendered pursuant to their quasi-judicial
authority have upon their finality, the force and binding effect of a final
judgment within the purview of the doctrine of res judicata.
SECOND, there is a possibility of litis pendentia when both remedies
are availed of at the same time by the petitioner or applicant.
Rule 108 is judicial in character, while RA 9048 is administrative
in character. It may be argued that litis pendentia cannot apply
because the other forum is administrative. This argument does not
hold water because, though it is true that the proceeding is
administrative, RA 9048 gave the administrative office of the local civil
registrar the quasi-judicial authority to determine whether or not there
is a clerical error in the subject entry. In litis pendentia, the test is not
whether there is identity of proceedings but whether as announced in
HSBC vs Aldecoa the decision in one forum will be res judicata as to
the other decision in another forum whichever party is successful. The
principle of litis pendentia avoids the situation of conflicting decisions
rendered by two fora determining identical issues and involving the
same parties. There is indeed a possibility that the applicant or
petitioner will gamble on the results of the proceeding in Rule 108 and
RA 9048 and in the process abuse the remedies provided by law. The
applicant may decide for example to dismiss his petition under Rule
108 when it becomes apparent that his application under Rule 9048
will succeed or succeeds. This abuse of remedies should not be
allowed, being against public policy and the principle on litis pendentia.
Note that in case there is litis pendentia, the civil registrar or any
person having or claiming any interest under the entry may move to
dismiss one of the proceedings. Only one proceeding should remain
and continue to determine the issue.
THIRD, in case remedies are availed of at the same time by the
petitioner or applicant forum shopping could also arise.
We have learned in Civil Procedure that whenever there is litis
pendentia, there is also forum shopping. And pursuant to Rule 72 Sec 2
that the Rules on ordinary civil actions are suppletory to special
proceedings, we can thus apply the principle of forum shopping. This is
a better ground for a motion to dismiss since both actions or
proceedings will be dismissed and the dismissal may be with prejudice
if the forum shopping is willful.
Certification against forum shopping is required at least in the
verified petition under Rule 108 and even may be perhaps in the
verified petition under RA 9048. If we will look at Rule 7 Sec 5 we find

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the word quasi-judicial agency, it can thus be reasonably inferred
that the requirement of certification against forum shopping
contemplates a situation that there is a pending judicial proceeding
and at the same time a similar quasi-judicial proceeding is pending.)
II. Requirements Under AO 1 Series of 2001
* If you read the Implementing Rules issued by the Civil Registrar
General, there is still a need for publication and there are several
clearances that are required to be submitted. (SEE Administrative
Order No. 1 Series of 2001, The Rules and Regulations Governing the
Implementation of RA 9048 Rules 8 and 9 thereof)
III. Exhaustion of Administrative Remedies
* If the local civil registrar approves the petition, the matter could
automatically reach the Office of the Civil Registrar General he may
affirm the approval. If however, the Civil Registrar General does not act
within a period of 10 days then it is deemed to have been affirmed. He
can also reverse the approval. (SEE AO 1 Series of 2001 Rules 12, 13,
14, 15 and 16)
* QUERY: What is the remedy of the person after the receipt of the
decision of the Civil Registrar General?
The law states only that appropriate action may be taken, but the
law does not tell us what this specific action or remedy is. However, if
we are going to follow established principles of governance, since this
is an administrative proceeding, we have to exhaust administrative
remedies before going to court. Otherwise the recourse to court will be
dismissed for failure to state a cause of action.
From the Office of the Civil Registrar General, the decision will be
taken to the higher administrative office which is the Office of
President. The decision of the Office of the President on the matter
may now be taken to the courts under the provisions of Rule 43
through petition for review. Note that this remedy is not mentioned at
all in the law. (SEE Secs 6 and 7)
* In case of Rule 108 the remedy is appeal from the decision of the
court where the petition for change of name was filed. There is no
requirement of exhaustion of administrative remedies since the
proceeding is judicial at the outset.
RULE 98: TRUSTEES
* A trustee also occupies the same office as a guardian or as an

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executor or administrator.
CONFIDENCE.

trustee

occupies

POSITION

OF

* Civil Code contains the substantive provisions on trust. (TITLE V:

Articles 1440-1446 NCC)
* Trustee is one of the officers of the court who hold a fiduciary
position.
* The Rules of Court govern the express trust which is referred to in the
Civil Code. However, there are no Rules for the enforcement of an
implied trust.
* The Rules of Court are the procedural principles governing the
enforcement of a trust.
* Kinds of trusts in substantive law:
1. living trust;
2. testamentary trust; (envisioned in the Rules of Court, Sec 1)
3. contractual trust; (mentioned in the Rules of Court Sec 3: trustee
under a written instrument)
* In the Rules, the trustee is one appointed by the court (MAST: This
statement somehow clarifies on what really is the kind of trust
contemplated by the Rules. Both testamentary and contractual trusts
are mentioned in the Rules. However what is really provided in the
Rules is a trustee appointed by the court whether he be by virtue of a
will or when a trustee in a contract dies, resigns etc.)
* Substantive Laws:
1. Civil Code and
2. the General Banking Act (power of banking institutions to engage
in the business of trust);
* General Banking Act:
- There is no classification of whether the trust is an express or an
implied trust;
- The trust referred to in the law is of course an express trust;
- Dean Jara suggested to read Central Bank Circulars 521 and 553
governing a living trust;
I. Title of Trustee
* The difference between an execad and a guardian from the trustee of
a trust is that a trust ACQUIRES TITLE to the property held in trust.

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* A trustee of an EXPRESS TRUST, either testamentary or a living trust
will acquire title to the property under his care.
* Insofar as 3rd persons are concerned, the trustee is the legal owner of
the property held in trust. Thus the trustee holds legal title to the
property held in trust while the beneficiary holds beneficial title over
the property.
II. Testamentary Trust
* In Testamentary Trust, a 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 indebtedness of the
decedent, then it is the duty of the executor or administrator to follow
the provisions of the will creating the trust. So it is the duty of the
executor and 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 could be considered as a CONTINUATION
OF THE SETTLEMENT PROCEEDING. But the property will now be
transferred to the name of the trustee unlike in the case of an executor
or administrator. (SEE Secs 1 and 2)
* PROCEDURE IN CASE OF TESTAMENTARY TRUST:
CASE: A wealthy man dies, and there is a provision in his will saying
that he is setting aside 10 M in trust for Philippine National Red Cross
(PNRC) as beneficiary.
- QUERY: If a trust is created in the last will and testament, can the
court appoint a trustee right away?
The court cannot right away appoint a trustee. Article 838 of the
Civil Code requires that the will must be submitted to the court for
probate. This is because no property can be acquired through a will
unless the will is admitted to court for probate. The executor named in
the will or the one who has custody of the will must submit the will to
probate, follow the procedure that is outlined for settlement of estate
and the court will appoint execad.
- QUERY: If there is already execad, can he already this time set aside
10M in trust for PNRC?
NO. Execad must still follow the provisions of the will, the law or the
rules concerning liquidation of the estate. He must see to it that the
estate is managed well and the obligations are paid first, before
distributing to legatees, devisees and heirs.
While the settlement proceeding is going on, it is impossible to set
aside the 10M in trust for PNRC. Unless the court is convinced (not

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necessarily an absolute certainty) that the assets are more than the
liabilities and that the trust will not prejudice the legitime of the forced
heirs.
We have to wait until the estate is finally settled. If the estate is
eventually liquidated and there is enough money to comply with the
instructions in the testamentary trust. Then, it is only the time that the
execad can set aside the 10M in trust for the PNRC. The executor
should not be the trustee at the same time, because that could
produce a situation of conflict of interest between trustee and
administrator. If there is a testamentary trust, the appointment of the
trustee is not necessarily a part of the settlement proceeding. It could
be by way of an independent proceeding for the appointment of a
trustee.
* The duty of the trustee is almost the same as the execad in
settlement proceeding.
* QUERY: Is there a difference between the execad and the trustee (in
contractual trust) with respect to the property held in administration or
trust, as the case may be?
The answer is found in the Civil Code. The execad just manages.
In express trust (particularly a contractual trust) the trustee is
effectively the owner. So that in express trust, if the trustee sells the
property, he does not need the approval of the court (the only
limitation is the document or instrument creating the trust). Thus, the
defense of innocent purchaser for value in good faith is proper when
there is a sale to a third person buyer. This is because the buyer deals
with someone holding title and is the registered owner of the property
as trustee.
(MASTER: A different rule applies in case of a testamentary trust or
when a trustee is appointed by the court. Unlike in contractual trust
where the authority comes from the written instrument, a trustee
appointed by the court has authority coming from the court that is why
there is a need for approval. The trustee appointed by the court is the
case contemplated by Sec 9.)
III. Contractual Trust
* It does not mean however, that only the court can appoint a trustee.
If the trust is a living trust or a contractual trust the trustee is
appointed by the parties to the agreement. The powers and duties of
the trustee in a contractual trust are contained in the agreement. If the
trustee is appointed by court, the powers and duties are provided by
the rules and the substantive laws.
*A trust also under the Rules could be CONTRACTUAL in character and

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the appointment of the trustee does not need the intervention of the
court. The appointment of the trustee could be had in the deed of
trust. Thus the trust could be had purely by reason of an agreement
between the trustor and the trustee and in some instances by the
beneficiary. Ex: Trust that exists in the cemeteries. (SEE Sec 3)
* QUERY: The Civil Code provides a trust which is created by the
parties, since it is contractual what is the business of the court?
If the trust is purely contractual, then the parties are free to
choose the trustee.
There is no need to go to court for the
appointment of a trustee
* In case of banks as a trust company, a person gives money to a bank
which acts as trustee. This money is not given as savings account
deposit or a time deposit or a current savings account, which is insured
by PDIC. The money is given in trust and this is not covered by
compulsory insurance of the PDIC.
* QUERY: In contractual trust, when can the RTC approve a petition for
the appointment of a trustee?
As a general rule, there is no need to go to court to appoint a
trustee in a contractual trust. However, if a trustee dies, resigns or
becomes incapacitated (the trust continues, there is only a need to
appoint a substitute trustee) and the parties are not in a position to
name a substitute trustee, this is a proper occasion to go to court. (SEE
Sec 3)
IV. Perpetual Trust
Unlike settlement proceedings, which are expected to terminate
at some time, we do not follow the same principle in case of trust.
There may be instances where the living or contractual trust falls
within the concept of a perpetual trust. The trust can lapse for an
indefinite period of time. In settlement proceeding however, the policy
is to terminate the proceeding as soon as possible so that the creditors
and the heirs will not be prejudiced in so far as their interests are
concerned.

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RULE 107 - ABSENTEES

* There are effectively three proceedings contemplated in the Rule on
Absentees:
1. Proceeding for the appointment of a representative:
- If the person disappears and his whereabouts are unknown, during
the 1st two years, what the court can do is to appoint a representative;
NOTE:
General Rule:
An agent is appointed by the principal pursuant to a contract of
agency.
Exception:
QUERY: Can a court appoint an agent (instead of the principal) while
the person is still alive?
Yes. The instance is found in Rule 107 on Absentees. The court does
not declare a person as absent right away. The court will still appoint
an administrator (of a person to represent him is actually the phrase
used in the Rule 107 Sec 1) (agent) of the property of a person
(principal) whose whereabouts are unknown. A principal-agent
relationship is thus created.
2. Proceeding for the declaration of absence:
- If the 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;(SEE Sec 2)
3. Proceeding for the settlement of the estate of the absent or
presumably dead person:
- If still the person does not appear, then this is the recourse of the
heirs or the spouse or any person interested in his estate;
- This proceeding will make use of the presumptions contained in the
Civil Code that a person is dead; (SEE Articles 390, 391 NCC)
- 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 or party; (Art. 392 NCC; Rule 73 Sec 4)
- In this matter of absence, there is no need for a prior declaration of
presumptive death for the purpose solely of settling the estate of the

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absentee;
* Under our Family Code Art. 41, there is now a petition for the
declaration of presumptive death. But this is ONLY for the purpose of
allowing the spouse to remarry.
* After the appointment of the administrator, if the whereabouts of a
person is still unknown, the remedy is to file a petition for declaration
of absence. The declaration of absence cannot be the permanent
status of the absent person. If he still does not appear, the next step is
to apply the principle of presumption of death in the Civil Code, and
the proper procedure is petition for settlement of estate making use of
the presumption of death in the Civil Code. There is no such thing as
petition for the declaration of presumptive death for the purpose of
settlement of the estate.
The foregoing should be distinguished from the declaration of
presumptive death for the purpose of allowing the spouse to remarry.
The remedy in this case is a summary special proceeding by itself in
relation to remarriage.
CONSTITUTION OF THE FAMILY HOME
There is no such proceeding anymore because it has been
repealed by the Family Code particularly Articles 152 and 153:
Art. 152. The family home constituted jointly by the husband and
the wife or by an unmarried head of the family, is the dwelling
house where they and their family reside and the land on which it
is situated.
Art. 153. The family home is deemed constituted on a house and
lot from the time it is occupied as a family residence. From the
time of its constitution and so long as any of its beneficiaries
actually resides therein, the family home continues to be such
and is exempt from execution, forced sale or attachment except
as hereinafter provided and to the extent of the value allowed by
law.
VOLUNTARY DISSOLUTION OF THE CORPORATION
We do not have to go to court. To voluntarily dissolve the
corporation, we make use of the provisions of the Corporation Code on
shortening the corporate life. We know in Corporation Law that when
the term ends, the life of the corporation also ends or is dissolved. (SEE
Sec. 120 BP 68)

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In case of involuntary dissolution of a corporation, such is
governed by the special civil action of Quo Warranto under Rule 66 Sec
1. (MAST: SEE Regalado: However, voluntary and involuntary
dissolution of corporations are now governed by BP 68. SEE Secs 118,
119 and 120: voluntary dissolution; Sec 121: Involuntary
Dissolution)
(MASTER: I am of the opinion that Rule 66 is considered only for the
grounds of involuntary dissolution since no specific grounds are
expressly mentioned in Sec 121. But the SEC will take cognizance of
the verified complaint.)
HOSPITALIZATION OF INSANE PERSON
RULE 109 - APPEALS
* The Rules on appeal in special proceedings (SP) are different from the
Rules on appeal in civil cases (CC) EXCEPT in cases which admit of
multiple appeals.
1. As to period of appeal:
- SP: 30 days (generally)
- CC: 15 days;
2. As to record of appeal:
- SP: docket fee plus record on appeal needs to be approved by the
court
- CC: docket fee plus notice of appeal does not need to be approved by
the court;
Cursed are you who have eyes but cannot SEE, hands but cannot TOUCH, has a heart but
cannot LOVE! BE A BLESSING - DOMINUS

BENEDICAMUS DOMINO! LAUDEM DOMINE MISERERE NOBIS!

DEO GRATIAS!!!
PAX ET VALOR
Ab Magistre, III-C; 2007-2008

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CONSUMMATUM EST!

TEMPUS FUGIT