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Ronald Chua
RULE 2 ACTIONS IN GENERAL (OLD RULES OF COURT) Section 1. Action Defined. – Action means an ordinary suit in a court of justice, by which one prosecutes another for the enforcement or protection of a right, or the prevention or redress of a wrong Section 2. Special Proceeding Distinguished. – Every other remedy, including one to establish the status or right of a party or a particular fact, shall be by special proceeding. The SC concluded that in proceedings like the present the CFI has no authority to appoint assessors. Q

A

What is the extent of the jurisdiction of the RTC (CFI) acting as a probate court in special proceedings?
The CFI, as probate court, has NO jurisdiction to take cognizance of the petition for reconveyance. The remedy sought by petitioner for the reconveyance to her of her share upon the ground that the same was acquired by respondent through fraud or misrepresentation cannot be obtained in the probate proceedings. The CFI, acting as a probate court, has limited jurisdiction and can take cognizance only of “matters of probate, both testate and intestate estates, and all such special cases and proceedings not otherwise provided for. The jurisdiction of a probate court is limited and special, and this should be understood to comprehend only cases related to those powers specified in the law, and cannot extend to the adjudication of collateral matters. The petition for reconveyance has given rise to a controversy involving rights over a real property which would require the presentation of evidence and the determination of legal questions that should be ventilated in a court of general jurisdiction. (Mangaliman v. Gonzales) It is a well- settled rule in this jurisdiction, sanctioned and reiterated in a long line of decisions, that when questions arise as to ownership of property alleged to be a part of the estate of a deceased person but claimed by some other person to be his property, not by virtue of any right of inheritance from the deceased and his estate, such questions cannot be determined in the court of administrative proceedings. The CFI, acting as a probate court, has no jurisdiction to adjudicate such contentions which must be submitted to the CFI in the exercise of its general jurisdiction as a court of first instance. (Baybayan v. Aquiino)

Are there any distinctions between an action and a special proceeding? A YES. ACTION SPECIAL PROCEEDING An ordinary suit in a court of An application or petition to justice, by which one party establish the status or right of a prosecutes another for the party or a particular fact. enforcement or protection of a right, or the prevention or redress Specpro is governed by Rules 72of a wrong. 109 of the RoC and other special laws. It is governed by Rules 2-71 of the RoC Normally initiated by an action or Initiated by mere application or complaint; requires the filing of petition or by filing a motion, formal proceedings which is titled as “in the matter of” There are 2 definite and particular There is a definite party adverse parties (plaintiff and petitioner/movant but no definite defendant) adverse party as the proceeding is usually considered to be against the whole world. What is filed by the defendant is A person opposing the petition called ANSWER files an OPPOSITION In an action, a right is alleged to While a right is alleged to exist, exist and have been violated there may be no violation since what is sought is merely the establishment of a right, status or fact The court is of GENERAL The court is one of LIMITED jurisdiction jurisdiction
Q HAGANS vs. WISLIZENUS, 42 PHIL 880 (1920) FACTS: Respondent judge, in support of his demurrer, argues that the provision of Act no. 190 permit him to appoint assessors in special proceedings. The petitioner contends that no authority in law exists for the appointment of assessors in such proceedings. ISSUE/S: Whether the CFI, “in special proceedings” is authorized under the law to appoint assessors for the purpose of fixing the amount due to an administrator or executor for his services and expenses in the care, management and settlement of the estate of a deceased person. HELD: NO. upon an examination of Section 2 of Act no. 190, which gives us an interpretation of the words used in said Act that a distinction is made between an “action” and a “special proceeding.” An action is a formal demand of one’s right in a court in a manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. The term “special proceeding” may be defined as an application or proceeding to establish the status or right of a party or a particular fact. Usually, in special proceeding, no formal pleadings are required, unless the statute expressly so provides. In special proceedings, the remedy is granted generally upon an application or motion.
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NOTE: the following amendments made by the BP129 with respect to certain matters on special proceedings: Section 9(1). Jurisdiction. – The Court of Appeals shall exercise original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether in aid of its appellate jurisdiction; Section 19(4). Jurisdiction in civil cases. – Regional Trial Courts shall exercise exclusive original jurisdiction in all matters of probate, both testate and intestate, where the gross value of the estate exceeds One hundred thousand pesos (P100,000.00) or, in probate matters in Metro Manila, where such gross value exceeds Two hundred thousand pesos (200,000.00) Section 21(1). Original jurisdiction in other cases. – Regional Trial Courts shall exercise original jurisdiction In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions Section 23. Special jurisdiction to try special cases. – The Supreme Court may designate certain branches of the Regional Trial Courts to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform cases which do not fall under the jurisdiction of quasi-judicial bodies and agencies, and/or such other special cases as the Supreme Court may determine in the interest of a speedy and efficient administration of justice. Section 33(1). Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in civil cases. – Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed P100,000.00 or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed P200,000.00 exclusive of interest damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That where there

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are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions Section 35. Special jurisdiction in certain cases. – In the absence of all the Regional Trial Judges in a province or city, any Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may hear and decide petitions for a writ of habeas corpus or applications for bail in criminal cases in the province or city where the absent Regional Trial Judges sit. Section 39. Appeals. – The period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from: Provided however, That in habeas corpus cases, the period for appeal shall be forty-eight (48) hours from the notice of the judgment appealed from. No record on appeal shall be required to take an appeal. In lieu thereof, the entire record shall be transmitted with all the pages prominently numbered consecutively, together with an index of the contents thereof. This section shall not apply in appeals in special proceedings and in other cases wherein multiple appeals are allowed under applicable provisions of the Rules of Court. JURISDICTION MANGALIMAN vs. GONZALES, 36 SCRA 462 (1970) FACTS: Mangaliman was an illegitimate daughter of Alejandro Gonzales. In a letter, she was given a legacy of 1/8 undivided portion of Hacienda Evangelista, but since she was still a minor then, her share was placed under the guardianship of her half- brother Alejandro Gonzales, Jr. Respondent- apellee, Manuel Gonzales is a legitimate son of the testator and the administrator of the estate Hacienda Evangelista, however, for alleged failure of the other heirs to pay the aforesaid amount, was levied upon and subsequently sold by the probate court. A final deed of sale was issued to respondent a year later after the failure of the petitioner’s guardian to redeem her undivided share. In April 1962, petitioner already of age, filed a petition before the same probate court for the reconveyance of her 1/8 undivided share contending that respondent had obtained the subsequent writs of execution through fraud and misrepresentations. Probate court ruled that respondent may not be divested of title under a probate proceeding but in an independent suit filed with competent court. Hence this appeal by petitioner. ISSUE/S: Whether CFI, as probate court, has jurisdiction to entertain a petitioner’s motion for reconveyance HELD: NO. the CFI, acting as a probate court, has limited jurisdiction and cognizance of matters of probate both testate and intestate. But this should be understood to comprehend only cases related to those powers specified by law, and cannot extend to the adjudication of collateral matters. The petition for reconveyance has given rise to a controversy involving rights over a real property which would require the presentation of evidence and the determination of legal question that should be ventilated in a court of general jurisdiction. The respondents filed a petition for summary settlement of the estate of Vincent Oria. The probate court issued an order adjudicating the estate to the heirs of the decedent. However, when a representative of the private respondents went to cultivate the portion adjudicated to them, he was prevented by Jose Diaz and Cipriano Evangelista. As a consequence, petitioners filed a complaint for the quieting of title, plus damages and to refrain the defendants from enforcing the writ of execution. Meanwhile, the probate court found that the property in the question was registered in the names of the petitioners. the same court ordered the petitioners to amend their complaint to determine whether lot E is part of the decedent’s estate inasmuch as it is now the property claimed by Baybayan covered by a TCT. Pursuant thereto, petitioners filed an Omnibus Motion amending the complaint and dropping some defendants. the judge however, found that it did not comply with his order and dismissed the case. Petitioners now contend that the judge has no authority to dismiss the case because the order to amend the complaint was issued in connection with Special Proceeding 24-R, where they were not even parties. ISSUE/S: Whether the petitioners are bound by the judge’s ruling. HELD: YES. The parties voluntarily submitted themselves to the jurisdiction of the probate court when they filed Omnibus Motion in Civil Case 231-R, praying for leave to amend their complaint in accordance with the order of the probate court. They cannot be allowed to adopt an inconsistent posture by attacking the jurisdiction of the judge to whom they submitted their cause voluntarily. The findings of the judge as to the ownership of Lot E do not justify the order to amend the complaint since the determination of the ownership of the said lot by the judge presiding over a court exercising probate jurisdiction is not final or ultimate in nature and is without prejudice to the right of an interested party to raise the question of ownership in a proper action. When questions arise as to ownership of property alleged to be a part of the estate of a deceased person, by the adverse party to that of the deceased and his estate, such questions cannot be determined in the courts of administrative proceedings. The CFI, acting as a probate court, has no jurisdiction to adjudicate such contentions which must be submitted to the CFI in the exercise of its general jurisdiction as a court of first instance. The order to amend the complaint did not specify what the amendments should be or how the complaint should be amended so that the petitioners could not be faulted. Thus, the petition for certiorari to review the lower court order is granted. RULE 72 SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES Sec. 1. Subject matter of special proceedings. - Rules of special proceedings are provided for in the following cases: (a) Settlement of estate of deceased persons; (b) Escheat; (c) Guardianship and custody of children; (d) Trustees; (e) Adoption; (f) Rescission and revocation of adoption; (g) Hospitalization of insane persons; (h) Habeas corpus; (i) Change of name; (j) Voluntary dissolution of corporations; (k) Judicial approval of voluntary recognition of minor natural children; (l) Constitution of family home; (m) Declaration of absence and death; Cancellation or correction of entries in the civil registry. Q A

BAYBAYAN vs. AQUINO, 149 SCRA 186 (1987) FACTS:
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What may be the subject matter of special proceedings? Refer to Section 1, Rule 72 above.

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S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Ronald Chua
Although paragraph (c) refers only to “children,” guardianship is not limited to children but extends to incompetents. Where paragraph (m) speaks of declaration of “absence and death,” there cannot be a special proceeding instituted just to obtain a declaration of death. Actual or presumptive death cannot be the subject of a judicial pronouncement or declaration if it is the only question or matter involved in a case or which a competent court has to pass. Such declaration may be made only in connection to a proceeding for the settlement of the estate of the alleged decedent. when they have not prejudiced the adverse party and have not deprived the court of its authority. Q Is the Statue of Limitations applicable to probate proceedings? A NO. To hold that the Statue of Limitations is applicable to the probate of wills would be destructive of the right to testamentary disposition and violative of the owner’s right to control his property within the legal limits. It is not without purpose that Rule 76 prescribes that “any person interested in the estate may, at any time after the death of the testator, petition the Court having jurisdiction to have the will allowed.” Q Is pre- trial applicable in special proceedings? A YES. As there is no provision in the Rules of Court limiting its applicability to civil actions. Q Is judgment by default applicable to proceedings to probate a will? A NO. A default can only arise in contentious litigation where a party who has been impleaded as a defendant and served with process fails to appear at the time required in the summons or to answer at the time provided by the Rules of Court. The proceeding to probate a will is not a contentious litigation in any sense because nobody is impleaded or served with process. It is a special proceeding, and altogether notice of the application is published. Nobody is bound to appear and no order of judgment of default is ever entered. If the application is not opposed, the court may allow the will on the testimony of one of the subscribing witnesses only, provided none of the reasons for disallowing the will are found to exist. If any interested party opposes, the probate court hears the testimony and dis/allows the will accordingly. Though the action taken by the RTC, the dis/allowance of the will is properly denominated a judgment. It is not a judgment rendered upon default even though no person appears to oppose the probate. Q What is the procedure of appeal in special proceedings? A In an appeal in a special proceeding under Rule 109 and in other cases wherein multiple appeals are allowed, the period of appeal is 30 days since a record of appeal is being required. If a motion for new trial or reconsideration is filed and denied, the remaining period within which to file a record on appeal may be too short and hence, a motion for extension of time to file the record on appeal may be granted, subject to the certain requirements. FERNANDEZ vs. MARAVILLA, 10 SCRA 589 (1964) FACTS: Herminio Maravilla filed a petition for the probate of his wife’s will with the CFI. The wife’s siblings filed an opposition on the ground that the will was not signed on each page by the testator in the presence of the attesting witnesses and of one another. On his motion, Maravilla was appointed as administrator. The court denied probate. The siblings then sought the appointment of Eliezar as co- administrator to protect their interest especially since the will was denied probate. Maravilla filed an appeal of the decision denying probate. The siblings and several of the devisees named in the will then sought the annulment of Maravilla’s appointment as administrator. The court then appointed Eliezar as co- administrator. From the above order of appointment of a co- administrator, Maravilla filed with the CA a petition for certiorari and prohibition to annul said order. The CA then issued a writ of preliminary injunction. The siblings, et al. filed a petition to certify the case to the SC as the amount involved exceeds ₱ 200,000 and alleged that the preliminary injuction issued was not in aid of the appellate jurisdiction of the CA as there was never an appeal on the denial of probate by the CFI. Maravilla contends that the decision of the probate court is under appeal and as such writ prayed for was in aid of the appellate jurisdiction and that the amount is less than ₱200,000 as the amount to be protected by Eliezar’s appointment was only ₱90,000 “more or less.” The CA granted the writ of certiorari and prohibition. Hence this appeal. ISSUE/S:
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• Special proceedings are not limited to the case

enumerated in Sec. 1 but includes cases the purpose of which is to establish the status or right of a party or a particular fact.

Other Special Proceedings (a) Liquidation proceedings (b) Corporate Rehabilitation (c) Recognition and enforcement of arbitration clause or award (RA 9285) (d) Vacation, setting aside correction or modification of an arbitral award (RA 9285) (e) Any application with a court for arbitration assistance and supervision (RA 9285) (f) Arbitration under a contract or submission (Sec. 22, RA 876)
Sec. 2. Applicability of rules of civil actions. - In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.

• In the absence of special provisions, the rues

provided for in ordinary actions shall be as practicable, applicable in special proceedings.
Special Civil Action Civil action subject to specific rules. Special Proceeding Remedy by which a party seeks to establish a status, a right or a particular fact Governed by special rules and ordinary rules apply suppletorily May involve only one party Initiated by petition

Ordinary Civil Action One by which a party sues another for the enforcement or protection of a right or the prevention of a redress or wrong Governed by the rules for ordinary civil actions Involves two or more parties Initiated by complaint

Based on a cause of action

Ordinary rules apply primarily but subject to specific rules Involves two or more parties Some are initiated by complain while some are initiated by petition Some special civil actions have no cause of action

Not based on a cause of action Except, Habeas Corpus

Q How should the rules governing special proceedings be construed? A Since the rules provided for in special proceedings are part of the Rules of Court, it follows that they should be LIBERALLY CONSTRUED for the purposes stated in Section 2, Rule 1. lapses in the literal observance of a rule of procedure will be overlooked when they do not involve public policy when they arose from an honest mistake or unforeseen accident,

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takes precedence over intestate proceedings.If the decedent is an inhabitant of the Philippines at the time of his death. or of the location of his estate. Thus. guardians and trustees but does not extend to the determination of questions of ownership that arise during the proceedings. whether a citizen or an alien. so far as it depends on the place of residence of the decedent. • The conversion of an intestate proceeding into a testate one is entirely a matter of form and lies within the sound discretion of the court • The mere discovery of s document purporting to be the last will and testament of the decedent after appointment of an administrator and assumption that the decedent died intestate does not. Rule 23 provides that the rules of ordinary civil action are applicable in special proceedings if they are not inconsistent with or serve to complement special proceedings. where the gross value of the estate exceeds P100. where the gross value of the estate does not exceed ₱ 0 . The jurisdiction assumed by a court. 0 0 0 . Jurisdiction to Distribute the Estate Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Q What is the jurisdiction of a probate court? A Probate proceedings are purely statutory. HELD: NO. his will shall be proved. where such gross value exceeds P200. The intestate court may pass upon the title to a certain property for the purpose of determining whether the same should or should not be included in the inventory but such determination is not conclusive and is subject to final decision in a separate action regarding ownership which may be constituted by the parties. apply Rule 74 on the summary settlement of estates Extent of Jurisdiction Probate courts are courts of LIMITED jurisdiction. the residence of the decedent to determine the venue 4. RULE 73 VENUE AND PROCESS Sec. the Metropolitan. the Court of First Instance of any province in which he had estate. Not having appellate jurisdiction. in the original case. Municipal or Municipal Circuit Trial Courts. executors. Where estate of deceased person settled. Q What are the steps in determining which court has jurisdiction over the probate of the will? A The following must first be determined: 1. or when the want of jurisdiction appears on the record. a probate court’s jurisdiction is limited and special and all acts in excess of the statutory power conferred are nugatory and do not bind those who have invoked its authority or submitted to its decision. whether the decedent is a resident of the Philippines or not 2. mortgage or any encumbrance of real estate (g) Directs the delivery of the estate to those entitled thereto • The court acts as a TRUSTEE. Maravilla’s contention is that appeals in special proceedings are within the exclusive appellate jurisdiction of the CA as they are not enumerated in Section 17 of the Judiciary Act.000 or. the CA cannot have original jurisdiction to issue the 2 above mentioned writs as such was merely incidental.000. it has been held that the term “civil cases includes special proceedings. except in an appeal from that court. Note that what is at issue between the parties is the annulment of the appointment of Eliezar and is such a controversy involving a contest for administration where amount or value of the entire estate is in controversy. and if he is an inhabitant of a foreign country. * note that under BP129. in the Court of First Instance in the province in which he resides at the time of his death. Conversion of an Intestate into Testate Proceeding • The probate of a will is mandatory and therefore. ipso facto nullify the letters of administration already 4| • The jurisdiction of the RTC as a probate or intestate court relates only to matters having to do with the settlement of the estate and probate of will of deceased persons and the appointment and removal of administrators. Section 2. namely (LAD): (a) Administration of the estate (b) Liquidation of the estate. Under Section 2. On the other hand. Ronald Chua Whether the CA has appellate jurisdiction over special proceedings. and his estate settled. both testate and intestate.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Further.” Such is untenable as a special proceeding has never been held to be a civil case. The court first taking cognizance of the settlement of the estate of a decedent. whether the deceased left any debts 5.called inferior courts. whether the deceased left a will ₱ if there is no will and no debts. Jurisdiction in Civil Cases – Regional Trial Courts shall exercise exclusive original jurisdiction: XxX (4) In all matters of probate. in probate matters in Metro Manila. 1. and (c) Distribution of the estate. as the amount is over ₱200. or letters of administration granted. Powers and Duties of a Probate Court: (a) The court orders the probate of the wall of the decedent (b) Grants letters administration of the party best entitled thereto or to any qualified applicant (c) Supervise and controls all acts of administration (d) Hears and approves claims against the estate of the deceased (e) Orders payment of lawful debts (f) Authorizes sale. The CA has no appellate jurisdiction as the appointment of Eliezar was only incidental to the probate proceedings and the value of the estate in question is more than ₱200. however. shall not be contested in a suit or proceeding. 2 issued or even authorize their revocation until the Will has been proved and allowed.000). shall exercise jurisdiction to the exclusion of all other courts. Rule 75. The authority/ jurisdiction cannot expand to collateral matters not arising out of or in any way related to the settlement and adjudication of the properties of the deceased. the so. have been conferred exclusive jurisdiction in all matters of probate both intestate. Section 19. the property to be administered and liquidated in in/testate proceeding is the entire estate and not merely the part of the conjugal property pertaining to the deceased spouse.000. It may only determine and rule upon issues relating to the settlement of the estate. . gross value of the estate (to determine whether it is the MTC/RTC which has jurisdiction and whether it could be subject to summary settlement of estate under Rule 74) 3.000 (₱362. BP 129.

1924. finally. Sometime later. Q When does the court acquire jurisdiction in the settlement of the estate of a deceased person who died with a will? A Jurisdiction of a probate court over the estate of a deceased person attaches when its limited jurisdiction is invoked by the presentation to the court of proper petition by some person entitled to take such action. • For the protection of the claimant. In order that the hearing and publications ordered by the court may be carried out. on the ground that the respondent had not previously filed her pleading nor paid the fees of the clerk of court. is not binding with any character of authority. on March 31. 1930. or (b) When all the parties are heirs and they submit the issue of ownership to the probate court provided that the rights of third parties are not prejudiced. ISSUE/S: Whether the court acquired no jurisdiction to take cognizance of the counter-petition for the probate of the second will. CFI) SALAZAR vs. The petitioner filed two motions for reconsideration which were denied and. 19937. (3) in the case of a nonresident. and (4) that the testament or last will of the deceased has been delivered to the court and is in the possession thereof. and for the issuance. General Rule: Probate Court cannot determine issue of ownership Exceptions: (a) Ownership may be PROVISIONALLY determined for the purpose of including property in inventory. it is evident that the court has acquired jurisdiction to probate the second will. that he ahs left an estate in the province where the court is situated 4. the respondent. in view of the presence of all the jurisdictional facts above-stated. in the case of a resident of this country. 5| Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . According to the facts alleged and admitted by the parties. The Jurisdiction to Award Attorney’s Fees • The application to fix attorney’s fees may be made before and passed upon by the probate court in the same proceedings where attorney’s services were rendered. without prejudice to its final determination in a separate action. having been made only for purposes of inclusion in inventory. Jurisdiction to Determine Heirs • A judicial declaration that a certain person is an heir (or only heir) is exclusively within the range of the administration proceedings and cannot properly be made an independent action. that he died in the province where the court exercises territorial jurisdiction. • Since the determination of the probate court of the question of title was merely provisional. would be contrary to the general tendency of the jurisprudence of avoiding multiplicity of suits. There must be evidence before it: 1. of the order setting the hearing thereof and directing such publications as required by law. to that effect. • A separate action for the declaration of heirs is not proper. that the publications required by law be made and that said will be heard jointly with the will presented by the petitioner in the same proceeding instituted by the latter. 64 PHIL 78 (1937) FACTS: Crispin Oben instituted special proceeding and prayed for the probate of the will allegedly made by his deceased mother on May 13. Court of First Instance acquires jurisdiction to probate a will when it is shown by evidence before it: (1) That a person has died leaving a will. 1937. copy of which was attached thereto. deposited P24 and filed the original of the will the probate of which had been sought by her. HELD: YES.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Such claim must be ventilated in an independent action. the court ordered that the expenses for the publications made in the newspapers be defrayed by the respondent. has power to determine the proportion or parts to which each distributee is entitled – to hold that a separate and independent action is necessary to that effect. that he has left a estate in the province where the court is situated. or to set the same for hearing of said will to be held in the same proceeding jointly with the first will. instituted this certiorari proceeding. The respondent filed a motion for reconsideration and the court. Ronald Chua • It is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate • The probate court. in the exercise of its jurisdiction to make distribution. it cannot be the subject of execution. (c) Question is one of collation or advancement. and the probate court should proceed to the distribution of the estate. in the case of a nonresident. that a person has died leaving a will 2. that the testament or last will of the deceased has been delivered to the court and is in the possession thereof (Salazar vs. This is specially true with small estates for which the rules provide precisely summary procedure dispensing with the appointment of an administrator together with the other involved and cumbersome steps ordinarily required in the determination of assets of the deceased and the persons entitled to inherit therefrom and the payment of his obligations • It is not proper to delay the summary settlement of a deceased person just because an heir or a third person claims that certain properties belong to him. issued an order setting aside the former one and directing that the will presented by the respondent be set for hearing. Where the Estate is of Small Value • The policy of the law is to terminate proceedings or the settlement of estate of deceased persons with the least loss of time. CFI OF LAGUNA AND RIVERA. that he died in the province where the court exercises territorial jurisdiction 3. • An order to include properties in inventory is merely provisional and interlocutory. the appropriate step is to have the proper annotation of his lis pendens entered. (2) in the case of a resident of this country. as against its possessor who has set up title in himself or adversely to the decedent and whose right to possess has not been ventilated and adjudicated in an appropriate action. if there are no other legal obstacles to it. The petition was opposed by Sabina Rivera and prayed for the probate of the will of the deceased alleged made on May 11. The court denied the motion for publication and ordered the Rivera to institute another proceeding and apply separately for the probate of the alleged will. on July 20.

Adoracion Campos. Campos died. that he has every reason to believe that the will in question is a forgery. Resolve. United States of America and not a "usual resident of Cavite" as alleged by the petitioner. The law on jurisdiction confers upon the CFI jurisdiction over all probate cases independently of the place of residence of the deceased. and his estate settled in the M/RTC of any province and which he had estate. against his opponent and after failing to obtain such relief. The latter claims that the court had no jurisdiction over the subject matter because the proceedings were not filed in the province where the deceased last resided. Lopez and Marieta C. From the allegation in the petition. the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania. An opposition to the reprobate of the will was filed by herein petitioner alleging among other things. procedure is one thing and jurisdiction over the subject matter is another. Hermogenes filed a petition for relief on the ground that the withdrawal of his opposition was secured through fraudulent means. During the intestate proceedings. and his estate settled. and his estate settled in the M/RTC of any province in which he resides at the time of his death. The payment of the fees of the clerk of court for all services to be rendered by him in connection with the probate of the second will and for the successive proceedings to be conducted and others to be issued is not jurisdiction in the sense that its omission does not deprive the court of its authority to proceed with the probate of a will Q What determines venue in the settlement of the estate of a deceased person? A The residence of the decedent at the time of his death is determinative of the venue of the proceedings.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Nenita C. Thus. HELD: NO. the original of which was filed by her on July 20. 74 PHIL 239 (1943) FACTS: Sy Oa is the administratrix of the intestate estate of Kaw Singco. Thus. the submission of all affected parties to said proceedings is aa waiver of objection to this error. Q What is the remedy of a party if the court refuses to dismiss the petition for probate despite timely objection on the ground of improper venue? A It has been held that the probate jurisdiction of a court depending on the place of residence of the decedent or on the location of his estate. the institution of the proceeding in the province wherein the decedent neither has residence nor estate does not vitiate the action of the probate court.resident of the Philippines. his will shall be proved or letter of administration granted. in his petition. Paguia. his will shall be proved or letter of administration granted. Medina as the surviving heirs. that the intrinsic provisions of the will are null and void. 190. if the decedent is a resident of the Philippines at the time of his death. U. Leonidas) POLLY CAYETANO vs. in the Court of First Instance of any province in which he had estate. but only in an appeal from the original case. 1937. providing that the estate of a deceased person shall be settled in the province where he had last resided. And it is upon this ground that in the new Rules of Court in the province where the estate of a deceased person shall be settled is properly called “venue. CO HO. Subsequently. he retracted his opposition and the questioned will was admitted to and allowed probate in the Philippines and Nenita Paquia was appointed administratrix. the same could not apply inasmuch as they would work injustice and injury to him. Rule 73. an opposition is filed by one Co Ho. 129 SCRA 522 (1984) FACTS: Adoracion C. Q Which court has jurisdiction to take cognizance of the settlement of the estate of a non. 1. 6| Moreover. which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix. EXCEPT when the want of jurisdiction appears on the record. As Hermogenes Campos was the only compulsory heir. there are many CFIs in the Philippines. could not have been intended as defining the jurisdiction of the probate court over the subject matter because such legal provision is contained in a law of procedure dealing merely with procedural matters and as this court has said time and again. Q What if the court denies the opposition and allows the will to be presented for probate. LEONIDAS. In the matter of the intestate estate of the late Kaw Singco (alias Co Chi Seng).resident? A The settlement of the estate of Adoracion Campos was correctly filed with the CFI of Manila where she had an estate since it was alleged and proven that Adoracion at the time of her death was citizen and permanent resident of Pennsylvania. Subsequently. what is your remedy? Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . however. Remedios C. private respondent Nenita C. but he files the same in Manila. Pennsylvania.S. Q X filed a petition to probate the will of B. Sometime later. In her petition. Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of Philadelphia. SY OA vs. if the decedent is an inhabitant of a foreign country. it is clear that venue has been improperly laid. the SC issued a resolution stating that there is no issue with respect to jurisdiction but there is merely a question of venue. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief. Y opposes because the decedent is a resident of Makati. and that even if pertinent American laws on intrinsic provisions are invoked. or a letter of administration granted.” Q What should the court do if the objection of improper venue is seasonally raised? A The petition for probate should be dismissed and the proceedings should be instituted in the proper court/venue. As venue is waivable. USA and not a “usual resident of Cavite” as alleged by petitioner (Cayetano vs. Hermogenes also filed another motion to vacate and/or set jurisdiction ISSUE/S: Whether respondent judge acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will. CFI JUDGE TOMAS T. petitioner is now estopped from questioning the jurisdiction of the probate court in the petition for relief. Eleven months after. the question of residence is determinative only of the venue and does not affect the jurisdiction of the court. he alleges that B is a resident of Makati. HELD: NO. his will shall be proved. in this case. Since.A. Thus. Q Is the residence of the deceased in probate proceedings jurisdictional? A NO. cannot be contested in a certiorari proceeding. Ronald Chua respondent's counter-petition should. be considered as a petition for the probate of the second will. Paguia filed a petition for the reprobate of a will of the deceased. Section 600 of Act no. the law of procedure fixes the venue or the place where each case shall be brought. Hermogenes Campos and her sisters. repudiate or question that same jurisdiction. he executed an Affidavit of Adjudication whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos. leaving her father. the place of residence of the deceased is not an element of jurisdiction over the subject matter but merely of venue. if the decedent is a non. A The petition should be dismissed on the ground of improper venue. 2. Under Section 1. ISSUE/S: Whether the last place of residence of the deceased is an element of jurisdiction.

and TERESITA CUENCO GONZALEZ. while insisting on the enforcement of the Rule fixing the proper venue of the proceedings at the last residence of the decedent. alleging among other things. Garcia. It signifies physical presence in a place and actual stay thereat. Z opposed on the grounds that venue has been improperly laid as the decedent was a resident of Makati. probate of a will. while the petition was filed in Manila. GARCIA. the terms "residing" and "residence. the Deed of Donation dated January 8. allows the trial to be held against him. )2 The CFI of Calamba lacks jurisdiction over the petition. ₱ Under Section 9 of BP 129. Fule as special administratrix. the surviving spouse of the deceased. actual residence or place of abode. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Rule 73 of the Revised Rules of Court is of such nature — residence rather than domicile is the significant factor. CFI denied the motion. Laguna. since if you file an appeal. which MAY BE WAIVED expressly or impliedly even in inferior courts.” xxx the place of residence of the deceased in settlement of estates. prohibition. SC ruled that the last place of residence last place of residence of the deceased Amado G. meaning. and that he left real and personal properties in Cebu and Quezon City. Rosa Cayetano Cuenco. Quezon City. as the caption of the Rule indicates – “Settlement of Estate of Deceased Persons. leaving real estate and personal properties in Calamba." is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. and the question of venue is raised before the same? A Section 1. the residence must be more than temporary. contending that )1 The decedent “resided” in QC for 3 months before his death as shown by his death certificate. within the jurisdiction of the Honorable Court. died intestate in the City of Manila. actual or physical habitation of a person. MANUEL CUENCO. Garcia. You do not file an appeal. Garcia. the long-settled rule is that objection to improper venue is subject to waiver. actual residence or place of abode. Q What does the term “resides” refer to? A The term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile. VIRGINIA GARCIA FULE vs. Gesmundo was mumbling about multiple appeals which we will discuss much later in the course.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . must also first take cognizance of the settlement of the estate in order to exercise jurisdiction over it to the exclusion of all other courts." A fair reading of the Rule — since it deals with venue and comity between courts of equal and co-ordinate jurisdiction — indicates that the court with whom the petition is first filed. Q X filed a petition to probate the will of Y in the CFI of Makati alleging that the latter was a resident of Makati at the time of his death. Fule's petition for letters of administration was improperly laid in the Court of First Instance of Calamba. ROSA CUENCO vs. CA. CONCEPCION CUENCO MANGUERRA. A death certificate is admissible to prove the residence of the decedent at the time of his death. It is merely constitutive of venue. after the rendition of an unfavourable judgment validly appear in court and raise be deemed waived and can no longer be pleaded. that the late senator died intestate in Manila. Preciosa B. Venue and Processes. show in bold documents that Amado G.. It signifies physical presence in a place and actual stay thereat. In the application of venue statutes and rules — Section 1. Aside from this. the personal. It ruled in favor of Garcia and annulled the proceedings held before the CFI. the deceased's residence certificate for 1973 obtained three months before his death. Laguna. A What do you think? ₱ Atty. and convey the same meaning as the term "inhabitant. 1973. merely a matter of venue. Thus. HELD: The term "resides" should be viewed or understood in its popular sense. Rule 73 on venue does not state that the court with whom the in/testate petition is first filed acquires exclusive jurisdiction. this time with the CFI of QC. Laguna. and by his children of the first marriage. Laguna. The Rule precisely and deliberately provides that "the court first taking cognizance of the settlement of the estate of a decedent. "resides" should be viewed or understood in its popular sense. Nevertheless. knowing from the very beginning that venue was improperly laid. Lourdes Cuenco filed a Petition for Letters of Administration with the court of first instance of Cebu. she moved ex parte for her appointment as special administratrix over the estate. the Marketing Agreement and Power of Attorney turning over the administration of his two parcels of sugar land to the Calamba Sugar Planters Cooperative Marketing Association. CA. Later Rosa Cayetano Cuenco also filed a petition. GARCIA and AGUSTINA B. a property owner of Calamba. and certificates of titles covering parcels of land in Calamba." At the same time. Where defendant. however. LOURDES CUENCO. Laguna. Ronald Chua A The remedy is to file certiorari proceedings before the CA because it is clear that the lower court has no jurisdiction since as alleged in the petition." In other words. but availed of a mere practical resort to alternative remedy to assert her rights as surviving spouse. Q Can venue be waived? A Venue is a matter of procedure. A motion for reconsideration was filed by Preciosa B. the personal. Laguna. he CANNOT. PRECIOSA B. shall exercise jurisdiction to the exclusion of all other courts. In the present case. Laguna to Agustina B. respondents herein. (Garcia Fule vs. Amado G." like. certiorari. Garcia did not necessarily waive her objection to the jurisdiction or venue assumed by the Court of First Instance of Calamba." This term "resides. actual or physical habitation. The term “residence” under Rule 73 is in reality. that he was a resident of Cebu at the time of his death. CA exercises jurisdiction to issue writs of mandamus. whether in aid of its appellate jurisdiction. and in other places. the terms are synonymous. CONSUELO CUENCO REYES. No particular length of time of residence is required though. and their 2 minor sons all residing in Sta. and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. Mesa Heights. Manila. Withal. Garcia's last place of residence was at Quezon City. Q What is the rule when the settlement of the estate of a deceased resident are instituted in two or more courts. actual or physical habitation of a person. Garcia was at 11 Carmel Avenue. Carmel Subdivision. Rule 73 with respect to the settlement of estates? Whether there was an improper venue. his actual residence or place of abode. Judge Malvar granted the motion. CA) ISSUE/S: What is meant by “residence” under Section 1. He was survived by his widow. for the probate of the deceased’s last will and Residence – his personal. the conclusion becomes imperative that the venue for Virginia C. and not at Calamba. meaning. CARMEN CUENCO. it would only have the effect of questioning the jurisdiction of the lower court. But in the case before Us the Court of Appeals had reason to hold that in asking to substitute Virginia G. 7| Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue. it would only have the effect of questioning the correctness and wisdom of the lower court’s judgment but at the same time recognizing the jurisdiction of the lower court. Quezon City. transferring part of his interest in certain parcels of land in Calamba. Fule elevated the matter to the SC on appeal by certiorari. Inc. B was a resident of Makati. habeas corpus and quo warranto and auxillary writs of processes. 1973. 74 SCRA 189 (1976) FACTS: Virginia G. all residing in Cebu. Resolve . Fule filed with the CFI of Laguna a petition for letters of administration alleging "that on April 26. 53 SCRA 360 (1973) FACTS: Senator Mariano Jesus Cuenco died at the Manila Doctors' Hospital.

On the one hand. this petition. shall exercise jurisdiction to the exclusion of all other courts." On the other hand. the Rule specifies that "the court first taking cognizance of the settlement of the estate of a decedent. the CA ruled in favour of Lourdes. it was held that "The general rule is that questions as to title to property cannot be passed upon in testate or intestate proceedings". to exercise jurisdiction to the exclusion of all other courts. The rule of venue does not state that the court with whom the intestate or testate petition is first filed acquires jurisdiction. not by virtue of any right of inheritance from the deceased. according to petitioner. He made the former as his first choice and the latter as his second choice of residence. such court. Rule 73. Quezon City. petitioner filed an action in the CFI of Nueva Ecija to determine title and ownership of said lands. . section 1 lays down the rule of venue. HELD: NO. ISSUE/S: Which court has jurisdiction? HELD: While the Judiciary Act concededly confers original jurisdiction upon all Courts of First Instance over "all matter of probate." The said court further found in said order that the residence of the late senator at the time of his death was in Sta. but they failed. which fixes the venue in proceedings for the settlement of the estate of a deceased person. and that the allegation of the intestate petition before it stating that the decedent died intestate may be actually false.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . the residence of the deceased or the location of his estate is not an element of jurisdiction over the subject matter but merely of venue. acting as a probate court. Such action notwithstanding respondent administrator for interfering with the administration of said properties. . The Cebu court issued an order holding in abeyance its resolution on petitioner's motion to dismiss "until after the CFI of QC shall have acted on the petition for probate of that document purporting to be the last will and testament of the deceased Don Mariano Jesus Cuenco." For purposes of determining what court has jurisdiction in the settlement of the decedent’s estate. who was appointed administrator of the estate of Josefa Tangco. and in order to prevent conflict among the different courts which otherwise may properly assume jurisdiction from doing so. Rule 73. respondent administrator contends that they are not the lands adjudicated to the incompetent by the commissioners on partition. Jose de Borja. TAN and JOSE DE BORJA. is the owner of two parcels of land situated in Santa Rosa. Jose de Borja is the son of Francisco de Borja. Tan) TASIANA ONGSINGCO. as well as an Opposition to Petition for Appointment of Special Administrator. Francisco de Borja. holding that Section 1. the one will be deemed or presumed to his domicile which he himself selects or considers to be his home or which appears to be the center of his affairs. shall exercise jurisdiction to the exclusion of all other courts. The rule precisely and deliberately provides that "the court first taking cognizance of the settlement of the estate of a decedent. but claimed by some other person to be his property. CFI Judge BIENVENIDO A. and also of the City of Cebu." Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . The Nueva Ecija court issued a preliminary injunction restraining respondent administrator for interfering with the administration of said properties. Having learned of the intestate proceeding in the Cebu court. may upon learning that a petition for probate of the decedent's last will has been presented in another court where the decedent obviously had his conjugal domicile and resided with his surviving widow and their minor children. it is that court whose jurisdiction was first invoked and which first attached. Quezon City. Mesa Heights. which must be submitted to the court in the exercise of its general jurisdiction as a court of first instance. Hence. Deceased stated in his last will and testament that he is a resident of Sta. (Ongsingco vs. Francisco de Borja is the surviving spouse of Josefa Tangco whose estate is being settled. by the same rule of venue of said Rule 73. While on the other hand. The QC court denied the motion to dismiss. Meanwhile. petitioner claims that they belong exclusively to her ward having inherited them from his late father Marcelo de Borja. 8| Q Can courts with concurrent or coordinate jurisdiction interfere with each other? A It is settled by an overwhelming weight of authority that no court has power to interfere by injunction with the judgments or decree of a court of concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction. has no jurisdiction to adjudicate such contentions." A fair reading of the Rule — since it deals with venue and comity between courts of equal and coordinate jurisdiction — indicates that the court with whom the petition is first filed. as administrator of the estate of Josefa Tangco. may decline to take cognizance of the petition and hold the petition before it in abeyance. Ronald Chua testament and for the issuance of letters testamentary in her favour. A dispute arose as to the ownership of said parcel of land. As such guardian. If a party has two residences. The Court of First Instance. with the consent and deference of the Cebu court. and this whether or not the property is alleged to belong to the estate". Said respondent prayed that the special proceedings before the QC court be dismissed for lack of jurisdiction and/or improper venue. These orders not only go into the issue of ownership but render ineffective the writ of injunction issued by the CFI of Nueva Ecija. the QC court admitted the will to probate. Subsequently. "When questions arise as to the ownership of property alleged to be a part of the estate of a deceased person. as the very caption of the Rule indicates. Nueva Ecija. It is a well-settled rule in this jurisdiction. giving as a principal reason the "precedence of probate proceeding over an intestate proceeding." Lourdes Cuenco then filed in the Quezon City court an Opposition and Motion to Dismiss opposing probate of the will and assailing the jurisdiction of the said Quezon City court to entertain petitioner's petition for probate and for appointment as executrix in view of the alleged exclusive jurisdiction vested by her petition in the Cebu court. The parties made several attempts to arrive at an agreement as to the identity of the disputed lands. filed a motion praying that petitioner be restrained from threshing the palay on the lands until the ownership thereof has been definitely determined either by the court or by agreement of the parties. The various branches of the Court of First Instance of Manila are in a sense coordinate courts and to allow them to interfere with each other's judgments or decrees by injunctions would obviously lead to confusion and might seriously hinder the administration of justice. or stating the rule more elaborately. Such action notwithstanding respondent court issued the 2 orders in question prohibiting petitioner from continuing possession of said partials of lands. The Cebu case having been filed ahead. . which he acquired by inheritance from his late father Marcelo de Borja and as such form part of his separate properties. Mesa Heights. Rosa Cayetano Cuenco filed in said Cebu court an Opposition and Motion to Dismiss. ISSUE/S: Whether the respondent court has jurisdiction to determine the dispute in the estate proceedings of ownership of the late Josefa Tangco considering that the dispute between the parties involves the ownership of the lands now subject of an action in the CFI of Nueva Ecija. Lourdes filed a special civil action of certiorari and preliminary injunction with the CA. the Quezon City court should be left now. both of testate and intestate estates. and instead defer to the second court which has before it the petition for probate of the decedent's alleged last will. and as there was a pressing need of immediately threshing the crops. covers both testate and intestate proceedings. as the surviving widow and executrix in the said last will and testament. must also first take cognizance of the settlement of the estate in order to exercise jurisdiction over it to the exclusion of all other courts. Guardian of Francisco de Borja vs. but by title adverse to that of the deceased and his estate. "the question of ownership of property is one which should be determined in an ordinary action and not in probate proceedings. 97 PHIL 330 (1955) FACTS: Tasiana Ongsingco is the wife and judicial guardian of one Francisco de Borja who was declared incompetent. Conversely. In another case. such questions cannot be determined in the courts of administrative proceedings. sanctioned and reiterated in a long line of decisions that. Since the Quezon City court took cognizance over the probate petition before it and assumed jurisdiction over the estate. petitioner took over from her husband the possession of said two parcels of land and commenced the threshing of the palay crop standing thereon for the benefit of her ward.

has acquired exclusive jurisdiction to settle the testate estate of the deceased Daniel Marquez and over the heirs and other person interested in the estate of the deceased from the moment the application for the probate of the decedent's will was filed with the said court and the publication required by law were made. not only because said courts then have concurrent jurisdiction — and. of the same rule. 83 PHIL 784 (1949) FACTS: Sandoval instituted a special proceeding in the CFI of Quezon Province for then probate of the will and codicil executed by the deceased Daniel Marquez in which she was designated as executrix. The Judge or Court of First Instance where the deceased was residing at the time of his death. hence. for the settlement of their respective estates may undertaken before the court of first instance of either one of said provinces. who died on November 28. Q Once the court assumes jurisdiction. Juan. Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . the one first taking cognizance of the case shall exclude the other courts — but. therefore. HELD: NO. for the same would then be defeated by the will of one of the parties. that is. The remedy of the aggrieved party is to appeal from such order or judgment. stating that they are illegitimate children of the deceased and that the latter was domiciled in San Fernando. The validity of a judgment or order of a court entered in a proceeding CANNOT be assailed collaterally unless the ground is for lack of jurisdiction of the court entering such judgment or order of fraud by the party sought to be charged with its procurement. also. according to said petition. One year after the probate of the will and appointment of the petitioner as executrix the respondent judge required the petitioner to quality as such and file a bind of P5.of Rule 74.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . 9| ₱ Jurisdiction already vested in a court may not be divested by the act of private individual nor by the action of another court of the same rank. because the statement to this effect in said section 1 of Rule 75 of the Rules of the Court immediately follows the last part of the next preceding sentence. the one first taking cognizance of the case shall exclude the other courts — but.000. not only because said courts then have concurrent jurisdiction — and. A motion for reconsideration was filed by the petitioner and denied by the court hence. for the settlement of their respective estates may undertaken before the court of first instance of either one of said provinces. and CARLOS EUSEBIO. hence. CFI Judge VICENTE SANTIAGO. The will and codicil were allowed and the petitioner was appointed executrix in accordance with the will but before the petitioner qualified as executrix the 3 heirs instituted in the will made an extrajudicial partition of all the properties of he deceased and entered into the possession of their respective share without the authority and approval of the court. (Eusebio vs. AMANDA EUSEBIO. merely because a similar case had been previously filed before a court to which jurisdiction is denied by law. ISSUE/S: Whether venue was properly laid in the CFI of Rizal. vs. It could not possibly have intended to deprive a competent court of the authority vested therein by law. also. Ronald Chua In the settlement of the estate of a decedent. said provision of the Rules of Court evidently refers to cases triable before two or more courts with concurrent jurisdiction. EUGENIO EUSEBIO. In response thereto the petitioner informed the respondent judge that it was not necessary for her to qualify because the heirs had already made an extrajudicial partition in accordance with the will as shown by the copy the copy of said partition which she submitted to the court. Eusebio) In the Matter of the Intestate of the deceased Andres Eusebio. merely because a similar case had been previously filed before a court to which jurisdiction is denied by law. wherein the deceased was residing at the time of his death. whose estate may settled the court of first instance of any province in which they have properties. by Amanda Eusebio. from said order. ISSUE/S: Whether Judge Sandoval exceeded his jurisdiction when he did not give to the extrajudicial partition the effect of terminating the testate proceedings? HELD: NO. which is also applicable to special proceedings. residing. 593 PHIL 593 (1956) FACTS: Eugenio Eusebio filed with the Court of First Instance of Rizal. VICENTE EUSEBIO. Amanda. JUAN EUSEBIO. in the City of Quezon. that the case be dismissed upon the ground that venue had been improperly filed. the filing of the present petition for certiorari. An extrajudicial partition of the estate of a deceased by the heirs becomes a judicial partition after its approval by the court which had previously acquired jurisdiction of the estate by the filing of an application for the probate of the decedent's will. subject to the claims against the distributees by persons mentioned in sections 4 and 5. but as the testate proceeding is terminated in such case without the necessary publication of notices to creditors and other persons interested in the estate required in a required in a regular judicial administration. and her aforementioned sister and brothers. on the ground that the probate proceedings having been commenced judicially it must also be terminated judicially. Andres Eusebio. Q Is judgment or orders in special proceedings subject to collateral attack? A NO. has acquired exclusive jurisdiction to settle the testate estate of the deceased and over the heirs and other person interested in the estate of the deceased from the moment the application for the probate of the decedent's will was filed with the said court and the publication required by law were made. a petition for his appointment as administrator of the estate of his father. for the same would then be defeated by the will of one of the parties. which deals with nonresident decedents. all surnamed Eusebio. More specially. Virginia. and praying. Hence. The petition for certiorari is denied because the respondent judge did not exceed his jurisdiction in not giving the deed of extrajudicial settlement or partition of the estate of the deceased the effect of terminating the testate proceeding over which the court has acquired exclusive jurisdiction since said partition was not submitted to said court for approval. and the heirs of the deceased Marquez could not divest the Court of First Instance of its already acquired jurisdiction by the mere fact of dividing extrajudicially the estate of the deceased among themselves. what is the applicability of the provision on conferring concurrent and exclusive jurisdiction? In granting the court first taking cognizance of the case exclusive jurisdiction over the same. The court overruled this objection and granted said petition. It could not possibly have intended to deprive a competent court of the authority vested therein by law. said provision refers mainly to non-resident decedents who have properties in several provinces in the Philippines. can it be deprived of its jurisdiction? A NO. The respondent Judge or CFI of Quezon Province. said provision of the Rules of Court evidently refers to cases triable before two or more courts with concurrent jurisdiction. Delfin. DELFIN EUSEBIO. In view of the answer of the petitioner the respondent judge ordered the executrix to qualify as such within 48 hours and declared the extrajudicial agreement of partition entered into by the heirs null and void. LUZ MARQUEZ DE SANDOVAL vs. objected to said petition. or if final. to apply for relief under Rule 38. which deals with nonresident decedents. said provision refers mainly to non-resident decedents who have properties in several provinces in the Philippines. More specially. the case is before us on appeal taken. whose estate may settled the court of first instance of any province in which they have properties. In granting the court first taking cognizance of the case exclusive jurisdiction over the same. the effect of such judicial partition would be the same as if it had been effected extrajudicially without the intervention of the court under the provisions of section 1. Pampanga. and the heirs of the deceased could not divest the Court of First Instance of its already acquired jurisdiction by the mere fact of dividing extrajudicially the estate of the deceased among themselves. 1952. because the statement to this effect in said section 1 of Rule 75 of the Rules of the Court immediately follows the last part of the next preceding sentence. Vicente and Carlos.

inasmuch as when the day comes he will be called upon to make distribution and adjudication of the property to the interested parties. except in an appeal from that court. PURIFICACION MIRAFLOR. Any incident which might arise in connection with special proceedings. and Felino Maloto. and )6 praying for a summary settlement of his estate. after the latter sold the property. certiorari does not lie.03. shall not be contested in a suit or proceeding. administratrix of the estate of Maximino Jalandoni vs. the herein petitioner. or party in interest in a testate or intestate succession may make.000 with the Filipinas Life Assurance Co. of Manila. CFI of Batangas) REMEDIOS BONGON VIUDA DE MANZANERO vs. must be acted upon and decided within the same special proceedings not in a separate action and the same judge having jurisdiction in the administration of the estate shall take cognizance of the question raised. said applicant and his attorney requested the clerk of the CFI of Batangas to send the record to Lucena which he did. had his legal residence in Santo Tomas. Esteban M. 61 PHIL 850 (1935) FACTS: This is an original petition for certiorari filed by Remedios Bongon Viuda de Manzanero against the CFI of Batangas and others. represented him. (Benedicto vs. the administrator of his estate. respectively. the brother of the deceased. Batangas. her place of residence. shall not be contested in a suit or proceeding. ISSUE/S: Whether the question of jurisdiction of a court to take cognizance of a summary settlement of the estate of the deceased. filed in the CFI of Batangas a sworn application alleging )2 that his deceased brother. what matters may the court consider? A The probate court had no jurisdiction to entertain the petition for the probate of the alleged will of Adriana Maloto in an intestate proceeding. Javellana. Javellana) EDUARDA BENEDICTO. for the settlement of an estate. or when the want of jurisdiction appears on the record. Maximo. must be acted upon and decided within the same special proceedings not in a separate 10 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . then assistant district engineer of the Province of Albay. An appeal being specially provided in such case. Albay. praying for the annulment. Manzanero. in the original case. in the Any incident which might arise in connection with special proceedings. The following pertinent facts are necessary for the resolution of the question raised in this petition.276. His brother.JULIO JAVELLANA. Javellana filed an answer to the petition and alleged that it was not proper to ask by means of a motion for relief of that Maximo Jalandoni claimed. Maloto) A TESTATE ESTATE OF THE LATE ADRIANO MALOTO: ALDINA MALOTO CASIANO. When it does not appear on the records of the case that the said court lacks jurisdiction to take cognizance of the application for the summary settlement by reasons of the illegal residence of the deceased. for the settlement of an estate. )3 that he had left no property except a life insurance policy of P5. (Casiano vs. status of a woman of hereditary rights 5. and ASILO DE MOLO vs. Q Give examples of matters within the jurisdiction of probate courts A Matters within the jurisdiction of probate courts: 1. only Fortunato Manzanero appeared through his attorney. When the application was called for hearing. inasmuch as when the day comes he will be called upon to make distribution and adjudication of the property to the interested parties. of the proceedings of said court in the case for the summary settlement of the estate left by deceased Esteban M. this was the sum paid to the administrator. or objecting to the authentication thereof. questions as to who are the heirs of the decedent 2. niece and nephews. Ronald Chua Q Can jurisdiction assumed by the court be contested or questioned? action and the same judge having jurisdiction in the administration of the estate shall take cognizance of the question raised. validity of disinheritance effected by testator 4.. and FILIPINAS LIFE ASSURANCE CO.. FORTUNATO. filed a petition in writing with the probate court demanding the delivery of ₱985. surnamed MANZANERO. of Adriana Maloto.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . As the vacation Judge. Remedios Bongon. HELD: NO. The more appropriate remedy of the petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the alleged with in question. Epitacio Panganiban. Judge David required the insurance company to pay the heirs Manzanero the proceeds of the life insurance policy amounting to ₱4. such as the determination of the status of each heir and whether the property in the inventory is conjugal or exclusive property of the deceased spouse. (Vda. 70 SCRA 232 (1977) FACTS: Adriana Maloto died on October 20. BARBARA. ISSUE/S: Whether a separate action should be filed instead of a motion or petition in writing. or party in interest in a testate or intestate succession may make. The jurisdiction assumed by a Court of First Instance. legatee. after due process. and every demand or claim which any heir. Manzanero. The motion was not heard as the presiding judge of the CFI of Batangas refrained from trying the case. )4 that his said deceased brother owed him the sum of P500. 10 PHIL 197 (1908) FACTS: Maximino Jalandoni passed away and left a will. except in an appeal from that court. maters incidental or collateral to the settlement and distribution of the estate. Constancio Maloto. MARCELINA and FERNANDA. in the original case. Q In the exercise of probate jurisdiction. In an order. Maximo died and Eduardo Benedicto. recognition of a natural child 3. or of the location of his estate. Manzanero. such as impugning the validity of a will. which became the subject of probate proceedings. 1963 in Iloilo City. CFI OF BATANGAS. Panfilo Maloto. so far as it depends on the place of residence of a person. for having acted without jurisdiction and committed therein irregularities nullifying said proceedings. and every demand or claim which any heir. in life. It is not proper to make a finding in an intestate estate proceeding that the discovered will has been revoked. Q Can a probate court in an intestate proceeding entertain petition for the probate of a will? A The jurisdiction assumed by a Court of First Instance. so far as it depends on the place of residence of a person. or when the want of jurisdiction appears on the record. Eduardo Gutierrez David. or objecting to the authentication thereof. by reason of residence. Fortunato Manzanero. such as impugning the validity of a will. Aldina Maloto Casiano. or of the location of his estate. validity of a waiver of hereditary rights 6. legatee. )5 that he was survived by a widow. was holding judicial session in Lucena. CONSTANCIO MALOTO. FELINO MALOTO and FELINO MALOTO. died in the provincial hospital of said province. widow filed a motion praying for the return and delivery of the money. which Maximo was supposed to inherit by legacy. residing in Tabaco. having been informed that the proceeds of the policy have been distributed among the heirs of her deceased husband. De Manzanero vs. ROMAN CATHOLIC CHURCH OF MOLO. may be raised by means of the extraordinary remedy of certiorari. Tayabas. but that a separate complaint should have been filed naming all the parties concerned in the estate. to wit: )1 Esteban M. HELD: NO need for a separate action.

allegedly selected by the 17 heirs of Irene to act as administrator of the estate of the latter. a document purporting to be the last with and testament of Adriana Maloto was delivered to the Clerk of Court of the CFI of Iloilo. Q Can a probate court adjudicate or determine title or ownership to properties claimed to be part of the estate equally claimed to belong to outside parties? Part of the property given to Irene consisted largely of salt beds which eventually became the subject of this controversy. The property in question being in the possession of third parties and more important. Panfilo and Felino filed an opposition with a motion to dismiss alleging among others. then the parties. (2) that the proper remedy of the respondent administrator is to file a separate civil action to recover the same. Thus. but if there is. 1963 in the CFI of Iloilo an intestate proceeding. as a court handling only the intestate proceedings. However. All that the said court could do as regards said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. 1971 lost its efficacy upon the rendition of judgment and issuance of the decree in favor of Irene Cuizon. commenced on November 4. a new TCT was issued in favor of the petitioners. PURIFICATION C. the administrator. ISSUE/S: Whether a probate court has jurisdiction over parcels of land already covered by a Transfer Certificate of Title issued in favor of owners who are not parties to the intestate proceedings if the said parcels have been included in the inventory of properties of the estate prepared by the administrator. and (2) the deed of sale of December 29. the sale was not registered because the petitioners felt it was unnecessary due to the lifetime usufructuary rights of Irene." except where one of the parties prays merely for the inclusion or exclusion from the Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . The petitioners contend (1) that that the respondent court. (2) annulment of the proceedings. The CFI of Iloilo approved the extrajudicial partition. and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so. Subsequently. well and good. The latter died in 1978. At that time. filed an inventory of said estate. well and good. all surnamed Cuizon. TCT covering the property in question was issued by the Register of Deeds to Irene Cuizon. Ramolete) FRANCISCO CUIZON. In the extrajudicial settlement of the estate Rufina adjudicated to herself all the property of the decedent including the property in question. on the other hand banked on (1) the failure of the petitioners to first apply for relief in the court of origin before filing the present petition. Hence. It is a well-settled rule that a probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally (claimed to belong to outside parties. The probate court had no jurisdiction to entertain the petition for the probate of the alleged will of Adriana Maloto in an intestate proceeding. The presiding judge denied the motions. 1979. and Purificacion Miraflor. 129 SCRA 495 (1984) FACTS: In 1970. It had no authority to deprive such third persons of their possession and ownership of the property. among whom being the Asilo de Molo. He included the property in question which was being administered by Juan Arche. the administrator. Rufina. executed a deed of Confirmation of Sale wherein she confirmed and ratified the deed of sale executed by the late Irene and renounced and waived whatever rights. (Cuizon vs. The court ruled in favour of Antigua for his possession and ownership of the property in behalf of the heirs. The petitioners thereafter brought this case to the SC. It appears that Aldina Maloto Casiano Consent Maloto. ISSUE/S: Whether the petition for probate is barred by the finding of the probate court in the intestate proceedings that the alleged will now being sought to be probated had been destroyed and revoked by the testatrix. pending the registration of several parcels of land. it was unnecessary for the petitioners to first apply for relief with the intestate court. It is not proper to make a finding in an intestate estate proceeding that the discovered will has been revoked. and (3) for the allowance of the last will and testament of Adriana Maloto. The more appropriate remedy of the petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the alleged with in question. The deed was duly registered with the Registry of Deeds and annotated at the back of TCT. Thereupon. the respondent court should have denied the motion of the respondent administrator and excluded the property in question from the inventory of the property of the estate. If there is no dispute. Ronald Chua belief that decedent died intestate. said nieces and nephews executed an extrajudicial Partition of the estate of Adriana Maloto whereby they adjudicated said estate unto themselves in the proportion of one-fourth (1/4) share for each. Rosita and Purificacion. GUIDO married to TEODORO GUIDO. Irene Cuizon executed a Deed of Sale with Reservation of Usufruct involving the said salt beds in favor of Francisco. and JUAN ARCHE vs. In 1971. After the notice of the extrajudicial settlement was duly published in a newspaper of general circulation. RAMOLETE. The said will also allegedly made dispositions to certain devisees and/or legatees. The petitioners filed a petition for certiorari and mandamus with the Supreme Court. The Asilo de Molo. Antigua. Rufina thereafter. DOMINGO L. covered by a transfer certificate of title issued in the name of such third parties. and participation she may have in the property in question in favor of the petitioners. but if there is. Domingo Antigua. CFI Judge JOSE R. petitioners commenced a separate special proceeding for the probate of the alleged last will and testament of Adriana. Panfilo Maloto. one of the petitioners. only sister of Irene. All that the said court could do as regards said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. Q Is there any exception to this rule? A It is a well-settled rule that a probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally (claimed to belong to outside parties. If there is no dispute.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . This Court dismissed the petition in a resolution on the ground that the more appropriate remedy of petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the alleged will in question. A decree of registration and the corresponding OCT was issued only in 1976 in the name of Marciano Cuizon. that the will sought to be probated had been destroyed and revoked by the testatrix. ANTIGUA and SEGUNDO ZAMBO. question as to title to property cannot be passed upon on testate or intestate proceedings. ROSITA CUIZON. Subsequently. the Roman Catholic Church of Molo. In the course of said intestate proceeding. the Roman Catholic Church of Molo. Francisco and Rosita were minors and assisted by their mother. the petition for probate is now barred by the order in the intestate proceeding. HELD: NO. then the parties. 11 | A While as a general rule. different and more valuable than what they obtained in the extrajudicial partition. and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so. Respondent court was clearly without jurisdiction to issue the order of June 27. HELD: NO. had neither the authority to adjudicate controverted rights nor to divest them of their possession and ownership of the property in question and hand over the same to the administrator. Rufina and Irene. In that same year. interest. and Purificacion Miraflor also filed petitions for the allowance of the will of Adriana Maloto. The probate court dismissed the petition for probate of the will on the basis of the finding in the intestate proceeding that the alleged will sought to be probated had been destroyed and revoked by the testatrix. Aldina Maloto Casiano and Constancio Maloto filed a motion (1) for reconsideration. Mariano Cuizon distributed his property between his two children. and Felino Maloto are named as heirs but Maloto Casiano and Constancio Maloto allegedly have shares in said with which are bigger.

Deogracias and Eduardo. said probate court may 12 | definitely pass judgment thereon. the community property shall be inventoried. whose share was alloted to her collateral relatives. all surnamed Bernardo. and Arturo. disposing of his properties in favor of his widow. However. provided interests of third persons are not prejudiced. argued that the deed of donation itself was determinative of the original conjugal character to the properties. by her heirs who have been substituted upon petition of the executor himself and who have appeared voluntarily. Estoppel by Laches Remedy if Venue is Improperly Laid General Rule : ORDINARY APPEAL not certiorari or mandamus Exception. CA) DEOGRACIAS BERNARDO. and liquidated. When the marriage is dissolved by the death of the husband or wife. now represented because of her death. matters affecting property under judicial administration may be taken cognizance of by the court in the course of intestate proceeding. It is true that the heirs of the deceased widow are not heirs of the testator-husband." except where one of the parties prays merely for the inclusion or exclusion from the inventory of the property. and when so submitted. and JOSE ISIDORO. she was substituted by her collateral relatives and intestate heirs. his widow. namely: FRANCISCO REYES. having limited and special jurisdiction. If both spouses have died. it complies with the requirement of the exception that the parties interested (the petitioners and the widow. The jurisdiction to try controversies between heirs of the deceased regarding the ownership of properties alleged to belong to his estate is vested in probate courts. the surviving spouse shall liquidate the community property either judicially or extrajudicially within six months from the death of the deceased spouse. and Buenaventura. in addition to her own right to the conjugal property. CA and THE HEIRS OF THE LATE HERMOGENA REYES. on their part. the same must be litigated not in the testate proceeding but in a separate civil action. There are no third parties whose rights may be affected. and the debts thereof paid. represented by dents) are all heirs claiming title under the testator. ET AL. and that with the consent of the parties.. HELD: While as a general rule. Bernardo and the instituted heirs of Eusebio contend that: (1) that the properties disposed of in the will of the deceased Eusebio Capili belonged to him exclusively and not to the conjugal partnership. The executor filed a project of partition in the testate proceeding in accordance with the terms of the will. all surnamed Reyes. when the parties interested are all heirs of the deceased. said probate court may definitely pass judgment thereon. it is optional to them to submit to the probate court a question as to title to property. Upon the termination of the marriage by death. we have also held that when the parties interested are all heirs of the deceased. The oppositors and heirs of Hermogena Reyes. Raymunda and Elena. If upon the lapse of the six months Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Francisco and Dominga. The matter in controversy is the question of ownership of certain of the properties involved — whether they belong to the conjugal partnership or to the husband exclusively. executor and the instituted heirs. ISSUE/S: Whether the probate court. his cousins Armando. and that with the consent of the parties. Related Family Code Provisions: Art. 103. The probate court declared the donation as void.. Exception. claiming 1/2 of the properties mentioned in the will of the deceased Eusebio Capili on the theory that they belonged not to the latter alone but to the conjugal partnership of the spouses. the widow. and that since the donation was null and void the deceased Eusebio Capili did not become owner of the share of his wife and therefore could not validly dispose of it in his will. If want of jurisdiction appears on the record of the case (Rules 73 Sec. This is so because the purpose of the administration proceeding is the liquidation of the estate and distribution of the residue among the heirs and legatees. These collateral relatives filed an opposition to the executor's project of partition and submitted a counter-project of partition of their own. Where estate settled upon dissolution of marriage. aside from the legal presumption laid down in Article 160 of the Civil Code. in the testate or intestate proceedings of the deceased spouse. vs. the conjugal partnership shall be liquidated in the testate or intestate proceedings of either. Marcos. 2. On appeal. because Hermogena Reyes had donated to him her half share of such partnership. namely: ARMANDO CAPILI and ARTURO BERNARDO. (2) that the collateral heirs of Hermogena Reyes had no lawful standing or grounds to question the validity of the donation. Hermogena Reyes subsequently died. Upon petition of Deogracias Bernardo. Exclusionary Rule General Rule : The court first taking cognizance of the settlement of the estate of the decedent shall exercise jurisdiction to the exclusion of all other courts. the claim that is being asserted is one belonging to an heir to the testator and. It cannot be divested of such jurisdiction by the subsequent acts of the parties as by entering into extrajudicial partition of the estate. provided interests of third persons are not prejudiced (Bernardo vs..S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Ursula. petitioners contend that the probate court had no jurisdiction to take cognizance of the claim of the legal heirs of Hermogena involving title to the property mentioned in the will. administered. Therefore. Vicente. Constancia. had generally the power to adjudicate the questions as to whether the properties involved belong to the conjugal partnership of the spouses or the husband exclusively. and when so submitted. adjudicating the estate of Eusebio Capili among the testamentary heirs with the exception of Hermogena Reyes. His will was admitted to probate. but the widow is. Said court also disapproved both projects of partition and ordered Bernardo to file another one. And it is this right that is being sought to be enforced by her substitutes. it is optional to them to submit to the probate court a question as to title to property. of course. and Jose. However. This is a matter properly within the jurisdiction of the probate court which necessarily has to liquidate the conjugal partnership in order to determine the estate of the decedent which is to be distributed among his heirs who are all parties to the proceedings. ET AL. If no judicial settlement proceeding is instituted. the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. and (3) that even assuming that they could question the validity of the donation. including. all surnamed Capili. matters affecting property under judicial administration may be taken cognizance of by the court in the course of intestate proceeding. executor of the estate of the deceased Eusebio Capili. 7 SCRA 367 (1963) FACTS: Eusebio Capili died and a testate proceeding for the settlement of his estate was instituted in the CFI of Bulacan by Hermogena Reyes. in which case the probate court may pass provisionally upon the question without prejudice to its final determination in a separate action. The probate courts acquires jurisdiction from the moment the petition for the settlement of estate is filed with said court. in which case the probate court may pass provisionally upon the question without prejudice to its final determination in a separate action. consequently. all surnamed Isidoro. Ronald Chua inventory of the property. namely. question as to title to property cannot be passed upon on testate or intestate proceedings. ET AL.

If no judicial settlement proceeding is instituted. and other matters which are not expressly determined in this Chapter. after which the latter’s testamentary proceedings were initiated and now in progress. where should the conjugal partnership be liquidated? A Act No. the intestate of Ramon Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Del Rosario) JULIA DEL ROSARIO. But whatever law might be applicable. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements. If upon the lapse of the six-month period no liquidation is made. acquired others. Ramon died in 1895. a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. Florencia administered these properties and with the products thereof.. HELD: The parties discuss whether Act No. 3176. In case of doubt as to which community the existing properties belong. 67 PHIL 652 (1939) FACTS: Ramon del Rosario and Florencia Arcega were husband and wife. vs. the liquidation of her conjugal properties with the deceased Ramon del Rosario should be made. is applicable to the case. no liquidation is made. any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements. any disposition or encumbrance involving the community property of the terminated marriage shall be void.000. fruits and income of each community shall be determined upon such proof as may be considered according to the rules of evidence. wherein. (189a) Art. the surviving spouse shall liquidate the conjugal partnership property either judicially or extrajudicially within six months from the death of the deceased spouse. the respective capital. Whenever the liquidation of the conjugal partnership properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously. Whenever the liquidation of the community properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously. and even assuming that it was that prior to Act No. ET AL. 132. Act No.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . fruits and income of each partnership shall be determined upon such proof as may be considered according to the rules of evidence. The plaintiffs bring this action to recover their share not only in the conjugal properties left by Ramon del Rosario but also in those acquired by Florencia Arcega with the products of said properties. (187a) Art. 133. 104. his testate was not commenced and the conjugal properties were not liquidated until Florencia’s death in 1933. the respective capital. a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. In his will. Upon the termination of the marriage by death. the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. 130. he left Florencia the properties of the conjugal partnership valued at ₱19. the pendency of these testamentary proceedings of the deceased wife excludes any other proceeding aimed at the same purpose. (n) Art. The Rules of Court on the administration of estates of deceased persons shall be observed in the 13 | appraisal and sale of property of the conjugal partnership. or the former law. and the testamentary proceedings of Florencia Arcega having been subsequently initiated. the intestate of Ramon del Rosario not having been commenced upon his death in 1895 until his widow Florencia Arcega also died in 1933. ET AL. 131. In case of doubt as to which partnership the existing properties belong. 3176. Q When both spouses have died. Ronald Chua period. Moreover. (189a) Art. is under administration. A demurrer was interposed to the complaint on the ground that there is another action pending between the same parties and for the same cause of action. but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them. (Del Rosario vs. the same shall be divided between the different communities in proportion to the capital and duration of each. ISSUE/S: Whether the conjugal properties of the spouses could be liquidated in a separate action despite the pendency of another action between the same parties and for the same cause of action. and that the complaint does not allege facts sufficient to constitute a cause of action. ANTONIO DEL ROSARIO. the entire conjugal partnership property of the marriage and not just the one-half portion belonging to the deceased. after Ramon’s death. after his death. (n) Art. and even assuming that it was that prior to Act No. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered. 3176 only amends the former law in the sense that upon the death of any of the spouses the community property shall be liquidated in the testamentary or intestate proceedings of the deceased spouse. 3176. (188a) • In the settlement proceedings of the estate of the deceased spouse. among other things. the same shall be divided between the different partnerships in proportion to the capital and duration of each. But whatever law might be applicable. 3176 only amend s the former law in the sense that upon the death of any of the spouses the community property shall be liquidated in the testamentary or intestate proceedings of the deceased spouse. that there is a defect or party plaintiffs and party defendants.

Natividad) HERMENEGILDO ALFONSO vs. ROMAN CATHOLIC BISHOP OF JARO. Q In liquidating the conjugal partnership. )2 The conjugal properties of the first and second marriage shall be liquidated to determine the corresponding share of each wife in the conjugal property. the pendency of these testamentary proceedings of the deceased wife excludes any other proceeding aimed at the same purpose. Hence. In the matter of the will of the deceased Paulino Diancin. TEOFILO DE JESUS. but was the separate property of Tomasa bought by her separate money.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . upon the latter’s demise. ISSUE/S: Whether an action lies for the liquidation and partition of the conjugal property. claims that the property belonged to the conjugal partnership during the life of the spouses and that this partnership having been dissolved by the death of Angeles. and the testamentary proceedings of Florencia Arcega having been subsequently initiated. as administrator of the estate of Angeles. where should the liquidation of the conjugal partnership be made? Who is charged with such liquidation? Angeles and Tomasa got married and during their marriage. the heirs of the deceased by his two marriages. )4 The legacy to the church must be taken out of the free portion. From this resolution Dolar and the heirs of the second marriage appealed. or in the absence thereof. When there are no debts to pay. 52 PHIL 870 (1929) FACTS: Donato Cruz’ wife died. Paulino entered into a second marriage with Teopista Dolar with whom he had 4 children. the estate had no debts. may be made in an ordinary action instituted for that purpose.000. JOSEFINA and ROSARIO DIANCIN. what is the basis in making an inventory of the conjugal property? A When a conjugal partnership is dissolved by the death of the husband (or wife) it must be liquidated in the proceedings charged with such liquidation under the direction of the court and may maintain an action against a third person to recover possession of property belonging to the dissolved conjugal partnership. its affairs should by law be settled by representatives of the deceased and that he is such representative who seeks to recover the land. Teopista Dolar. Angeles died after the execution of the document. 6 PHIL 240 (1906) FACTS: 14 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . and as it does not appear that there are any. said action will lie. the liquidation and partition of the property of the conjugal partnership. The court then ordered the administratrix.. ET AL. Alfonso has no right to recover said property. He left a will before he died wherein he sets out all his properties and distributes them among his widow Teopista Dolar and his heirs by both marriages. the plaintiffs have a right to intervene in these proceedings as parties interested in the liquidation and partition of the conjugal properties of the deceased spouses Ramon del Rosario and Florencia Arcega among their heirs.. said liquidation is implied in the action for partition. He also left a legacy of P8. Paulino acquired certain properties during his first marriage and still others during his second. Under our laws. Q Upon the death of one of the spouses. and the creditors of the estate. dissolved by the death of one of the spouses. Hence. When there are no debts to pay. Such action involved properties which were in the possession of Donato long before his wife died. If the marriage is dissolved by death of one of the spouses: ₱ In/testate proceeding according to whether the deceased died with or without a will ₱ Ordinary proceeding for liquidation and partition. ISSUE/S: Whether all the heirs must agree before a partition is to be effected. PEDRO NATIVIDAD. )3 The properties of the deceased both from the first and second marriage shall be partitioned among the heirs. 68 PHIL 727 1939) FACTS: Paulino Diacin married Margarita Doctura with whom he had 5 children of whom 3 are alive. the representative of the legacy for P8. Natividad then took possession of the land. among other things. otherwise come to an agreement. the liquidation of her conjugal properties with the deceased Ramon del Rosario should be made. There is no evidence to show what source the money came from which was used to buy the land. The 2 children who died left 3 children each. and before the property of the deceased can be adjudicated to his or her heirs. The first was disapproved because of the objection of several of the heirs. may be made in an ordinary action instituted for that purpose. allegedly to wait for one of the heirs to pay the debt due to him. HELD: CONJUGAL. The procedure for the partition of the decedent’s estate is as follows: )1 All the debts and administration expenses shall first be paid. HELD: YES. TEOPISTA DOLAR. to take possession of the properties and deliver the legacy to the church. HELD: YES. Angeles and Tomasa executed a document wherein they pledged this property to Natividad in consideration of a loan. Tomasa acquired legal title to the tract here in question. the liquidation and partition of the property of the conjugal partnership. Unless the widow Teopista Dolar. ISSUE/S: Whether the land in question was conjugal. De Jesus) DONATO CRUZ. vs. At any rate. Since the complaint for partition alleges that there are no debts to pay.000 to be spent for the altar of the church under construction in the Municipality of Dumangas. Alfonso. For while it is true that it prays for a liquidation of the property of the conjugal partnership. Tomasa followed thereafter. Q Must liquidation be made in a special proceeding for the settlement of the estate of the deceased? A NO. dissolved by the death of one of the spouses. the partition should be made with the intervention of all the interested parties according to law. (Cruz vs. Further. Donato then filed a motion to amend his complaint from “partition” to “liquidation and partition. upon the death of one of the spouses. ET AL. vs. wherein. without impairment of the legitimes of the forced heirs )5 The legal usufruct of the widow must be taken from the third available for betterment )6 Legitimes shall be distributed among the forced heirs )7 The remainder of the free portion is to be divided among the forced heirs in equal parts. Hence. (Alfonso vs. ET AL. Donato then filed an action for partition of their conjugal estate. RITA. the law establishes 2 methods of liquidating the property of a conjugal partnership. the conjugal partnership ceases upon the dissolution of the marriage.” Such was denied by the lower court holding that the proper action was that of either testate or intestate proceedings. OLIMPIA. Natividad claims that the property was not the property of the conjugal partnership. The second was also disapproved because of the objection of the representative of the church of Dumangas. ordering that this be taken from the fruits of all the properties before they are partitioned among his heirs 2 projects of partition were submitted. Ronald Chua del Rosario not having been commenced upon his death in 1895 until his widow Florencia Arcega also died in 1933. in the proceedings for the settlement of the estate of the surviving spouse. there must be a liquidation of the conjugal partnership and this shall be made in the proceedings for the settlement of the estate of said deceased.

ESPERANZA TAÑEDO and BARTOLOME QUIZON. ET AL. They were also indebted to Esperanza Tañedo. Deciding the controversy. from whom may conjugal debts be recovered? A The husband. Plaintiffs averred that the properties belonged to their predecessor in interest. It is error to determine the amount to be divided by adding up the profits which had been made in each year of its continuance and saying that the result is that amount. he is entitled to ₱81. MACARIA E. whereby for valuable consideration. 1933. as administratrix of the estate of Fausta Macasaquit. it is no longer necessary to prepare an inventory of the conjugal properties and make a liquidation. being their conjugal property. an inventory of the actual property possessed by the spouses at the time of the dissolution must be made. the said daughter. ESTEBAN DE LA RAMA. Macaria now claims that it was error for the lower court to adjudge the controversy upon the strength of the above mentioned exhibits..S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Q Upon dissolution of the conjugal partnership by reason of the death of one spouse. In July 1902 Leon Calimon took a third wife. In this connection she affirmed that thru deceit and intimidation she had signed three documents assigning to her co-defendants (cross-defendants) her lawful participation in the conjugal assets in exchange for certain properties alloted to her. and all the rest to their father Leon 15 | Calimon. De la Rama) AGUEDA BENEDICTO DE LA RAMA vs. The civil code provides that upon dissolution of the conjugal partnership an inventory on all conjugal properties shall at once be made. The cross-defendants countered with the assertion that some of the properties belonged to them. Maria Calma.76 based on the income of profits earned by the partnership prior to the dissolution. Maria Calma. Upon the commencement of the corresponding probate proceedings in the Court of First Instance of Tarlac. Mariano. 7 PHIL 745 (1907) FACTS: Esteban dela Rama claims that upon the dissolution of the conjugal property. In the execution of this judgment. A similar documents of renunciation was held valid and binding in Antonio vs. but survived him when he passed away. Mariano had voluntarily and validly signed the documents mentioned in her cross-claim. Macaria E. It is error to determine the amount to be divided by adding up the profits which has been made in each year of its continuance and saying that the result is that amount. despite the third party claim filed by Fausta Macasaquit. Venancia Inducil. a son by previous marriage: Tiburcio Villacorte. Esperanza Tanedo filed a complaint against Eulalio Calma for the recovery of the sums of P948. It was unnecessary to prepare the inventory and make the liquidation because the parties interested. Q Is inventory and liquidation always necessary? A NO. When the interested parties have already reached a compromise. in 2 separate answers. upon the latter’s demise. Toledo) MARIA CALMA vs. 3176. And supposing that all those lots were community property. and also to interpose a crossclaim against her co-defendants. without previously requiring an inventory and liquidation of the conjugal properties of the deceased Leon Calimon and the cross-plaintiff. the widow renounced in favor of the children all her interest and rights in the estate of the deceased as well as her participation in the conjugal partnership. with interest thereon at 10 per cent per annum. the next year he married Venancia Inducil. In liquidating a conjugal partnership. 10 months afterwards Macaria E. A widower in 1898. HELD: NO. Defendants. debts. leaving him no child. and that Macaria E. an inventory of the actual property possessed by the spouses at the time of the dissolution must be made. i. (VDA. 66 PHIL 594 (1936) FACTS: The spouses Eulalio Calma and Fausta Macasaquit were the owners of the property described in the complaint. Mariano. inventory shall not be required if. DE VILLACORTE. She bore him no offspring. Deputy Sheriff of Tarlac. (De la Rama vs. to such conjugal partnership property. Aloc. (Calma vs. ISSUE/S: Whether the complaint for recovery of the sums was correctly filed against Eulalio Calma HELD: NO to both to interpreting the applicable law. no complaint can be brought against him in an ordinary action for the recovery of the debt chargeable against the conjugal property and the action of this purpose should have been instituted in the testamentary proceeding of the deceased wife in the manner provided by law. In the case at bar. Ronald Chua A In liquidating a conjugal partnership. 89 PHIL 342 (1951) FACTS: During his lifetime Leon Calimon married thrice. Act no. While these probate proceedings of the deceased Fausta Macasaquit were pending. who lived only 10 months thereafter. Maria Calma. it can be gathered that the testamentary proceeding have been instituted the liquidation and partition of the conjugal property by reason of her marriage to should made in the proceeding to the exclusion of any other proceeding for the same purpose it follows therefore that Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . etc. the heirs of Leon Calimon by the first marriage. claimed that the lots were owned exclusively by Leon Calimon. was appointed judicial administratrix of the properties of the deceased. demanding the recognition of her rights as surviving spouse. And under the provision of article 1418 of the Civil Code. On October 10.34 and P247. chargeable against the conjugal property. The widow and daughter of Tiburcio Villacorte filed a complaint seeking to recover 38 parcels of land allegedly in the possession of Canuta Calimon and her three sisters and of Macaria E. as administratrix of her properties. She had. however. His first marriage with Adriana Carpio gave him 4 daughters named Canuta. the property described in the complaint was sold by the sheriff. After deductions (dowries. Mariano amended her answer to assert that all the realties had been acquired during her coverture with Leon Calimon. Tranquilina.) then the remainder is to be divided equally between the spouses. HELD: NO. and that as a consequence the Calimon sisters were entitled to continue possessing the lands and properties assigned to them by virtue of said Exhibit. MARIANO. The crossdefendants were absolved from the cross-complaint. vs. ISSUE/S: Whether income or profits earned by the partnership is used in determining the total conjugal assets for purposes of dissolution of the conjugal partnership.387. still the said exhibit governs the rights of the parties. the heirs of Leon Calimon and his widow had already reached a compromise by means of Exhibit 1Mariano. Maria and Enriqueta. The conjugal property which is to be eventually divided is determined not with reference to the income or profits which may have been received during the partnership but rather by the amount of the actual property possessed by them at such dissolution after making the deduction and payments aforesaid. or his or her successors shall have renounced its effects. one of the spouses. having ceased to be the administrator of the conjugal property had with his wife. The CFI of Tarlac rendered judgment for the payment of this sum. ISSUE/S: Whether the lower court should have required an inventory and liquidation of the conjugal properties before adjudging the controversy. after the partnership has been dissolved. MARIANO) CONCEPCION VDA. now brings this action and asks that the sale made by the sheriff of the property described in the complaint be annulled and that the estate of Fausta Macasaquit be declared the sole and absolute owner thereof. DE VILLACORTE vs. Fausta Macasaquit died leaving a will wherein she appointed her daughter. court reached the conclusion that the three documents were valid and binding.e.34 and P247. in the sums of P948.

upheld these allegations and gave judgment in favor of the children of Edilberto Ocampo and Paz Yatco. OCAMPO. The issue of the division of Edilberto Ocampo. was null and void as to the share of their deceased mother Rufina Reyes in the property in litigation. Q Who determines the sufficiency of the evidence of the value of the conjugal property? A The admission in evidence without objection. Based on the evidence presented and taking into account the assessed value of the property of the conjugal partnership at the time of the liquidation. which ruled that as both had committed adultery. Natividad) JOSE M. Maria Prado died from pulmonary tuberculosis in Manila. the tender and consignation must be held to produce their legal effect. on the strength which the register of deeds issued TCT in the name of Potenciano and his wife. ISSUE/S: Whether CA erred in ruling that the husband had authority to enter into such agreement as administrator of the conjugal estate. Section 2. the total value thereof amounts to P10. since ownership in the property never passed to their parents. Intervening in the case. Conrado Potenciano. Q What is the basis in the appraisal of real property? 16 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . ESTEBAN DE LA RAMA. and VICENTE Y. alleging that the option to purchase granted by their father to plaintiff on February 28. a town a lot with a house standing thereon. no complaint can be brought against him in an ordinary action for the recovery of the debt chargeable against the conjugal property.500 within 5 years.40. HELD: The Court of Appeals erred in supposing that the surviving spouse had such authority as de facto administrator of the conjugal estate. which share passed to them by right of inheritance. and upon the tender being rejected. making it appear that. deposited the money in court and brought an action in her own name and as judicial administratrix of the estate of her deceased husband to compel Potenciano to accept it and to have the title to the property reinstated in her name and that of her husband. where she had been taken for treatment. were exercising the right of redemption accorded by law to co-owners of property held in common The Court of First Instance. VICTOR POTENCIANO and LOURDES POTENCIANO. Rule 75. married to Paz Yatco. Jose Maria Prado. The action for this purpose should have been instituted in the testamentary proceedings of the deceased wife in the manner provided by law. MAURO Y. DOES NOT BIND the trial court to accept as true the contents of such inventory in a case wherein the amount and value of the property in question is at issue. US SC held that no such preponderance of evidence is present to hold that the wife was also guilty of adultery. as may again be noted. and it should not be held as conclusive of the truth of its contents if other evidence of record disclosed its inaccuracies and its failure correctly to set forth the value and quantity of the properties in question. 89 PHIL 160 (1951) FACTS: A In appraising the real property of the conjugal partnership. Fausta. GIL Y.200 as alimony. OCAMPO. and dismissing the complaint. The defendant appealed to this court. PAZ Y. Ocampo signed another document. Also. executed a deed purporting to convey to his relative. decreeing the liquidation of said partnership. however. did not close the avenue for settlement. Casimiro Natividad alleged that the estate of the conjugal partnership constituted between him and his deceased wife Maria Prado had already been liquidated. there is ground to believe that the option agreement in question was nothing more than mere extension of time for the payment of the mortgagee debt. of the Rules of Court provides that when the marriage is dissolved by the death of either husband or wife.042.853. who had substituted the latter after her death. Potenciano's children.76 as her share of the conjugal property. Ronald Chua Fausta Calma having ceased to be the legal administrator of the conjugal property had with his wifre. OCAMPO. OCAMPO. or default thereof. and P3. (Prado vs. On April 27. It follows from the foregoing that at the time Paz Yatco made the tender of payment and consigned the necessary amount in court. adjudicating to the plaintiff administrator one-half of the conjugal property with its products. holding that no residue existed which should be divided between the husband and the heirs. OCAMPO.000 an amount sufficient to cover both principal and interest. wherein he alleged that the latter had refused to make an liquidation of the estate of the conjugal partnership and prayed the court for judgment.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . or in default thereof. and the latter's wife. it is NOT the purchase price. and allowing plaintiff the sum of P81. by way of sale with pacto de retro for P2. which is that of relieving the debtor from liability. value at the time of the liquidation that must be taken into account. and as the tender was made in legal currency. ISIDRO Y. is equivalent to 12% of the purchase price. Q How should the value of the estate of the decedent be computed? A In the appraisal of the real property of the conjugal partnership. Rufina Reyes. after trial. 1939. Court ruled against the defendant by granting a divorce. the division of the conjugal property. but the market. dissolving the conjugal partnership. of the inventory purporting to set forth the amount and value of certain property. and the period having elapsed without the repurchase having been made. Jose Maria Prado took an appeal on the basis of the alleged error committed by the court by taking into account the value of the property of the conjugal partnership at the time of the acquisition thereof. filing the claim with the committee on claims and approval. CONRADO POTENCIANO. Potenciano gave Paz Yatco an option to repurchase the property for P2. but a loss of P10. Plaintiff appealed to the US SC which reversed the ruling of the Phil SC.5000. and alimony pendente lite. 1944. OCAMPO vs. During the marriage the spouses acquired on different dates real and personal properties. but the market. no conjugal property having been found to exist. 25 PHIL 437 (1913) FACTS: This case arose out of the decision of the US SC in the case that plaintiff instituted against her husband charging him with adultery and prayed for a divorce. In such case. Hence. On that same day. The last extension granted was for year from February 3. the intervenors. the assessed. these appellants (intervenors) acquired nothing. the partnership affairs must be liquidated in the testate or intestate proceedings of the deceased spouse. and a lease thereon for the same period of time at annual rental of P300 which. neither was entitled to a divorce. the said contract of loan with security was still in effect. upon the latter’s death. it is not the purchase. for an annual rental of P300 equivalent to 12% of the purchase price. 1937. PRADO vs. and where other evidence as to its amount and the value has been submitted.000.98. Potenciano filed with the register of deeds of Laguna an affidavit for the consolidation of title. and not of its liquidation and the fact of its having taken into consideration the supposed debt of P17. Paz Yatco sought to exercise the option by tendering to Potenciano at his clinic in Manila the sum of P4. Maria Prado did not bring anything. Several extensions were granted. Victor and Lourdes. On February 7. This. the document is admitted for what is worth as evidence. the vendees were leasing to him the house and lot for the duration of the redemption period. in his capacity as administrator of the estate of Maria Prado. filed a cross-complaint. 1904. JOSEFA Y. filed a complaint in the CFI of Camarines Sur against Casimiro.428. AGUEDA BENEDICTO DE LA RAMA vs. the assessed value at the time of the liquidation that must be taken into account. The lower court rendered judgment. CASIMIRO NATIVIDAD. 47 PHIL 776 (1925) Casimiro Natividad and Maria Prado contracted marriage with Casimiro bringing to the marriage some real properties which he had received from his mother as his future share in her inheritance. With Edilberto Ocampo and Rufina Reyes already dead.

several thousands pesos. Emeteria. brought 9. of an inventory purporting to set forth the amount and value of certain property does not bind the trial court to accept as true contents of such inventory where other evidence as to its amount and value has been submitted. they categorically refused to deliver the same Defendants denied absolutely each and all of the facts alleged against them in the complaint. )8 that a demand having repeatedly been made upon the defendants for the friendly delivery by them of the said property.37.In the exercise of probate jurisdiction. BENITA GATCHALIAN.500 pesos Mexican currency as shown as private property. NO because said courts orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without need of executory processes. that all the property designated in the complaint. for. ISSUE/S: Whether the CFI erred in its valuation of the conjugal property and the procedure it adopted in liquidating the partnership assets. )2 that Benita Gatchalian was appointed administratrix. or is released. As a special defense. specify the instance wherein the probate court may issue a writ of execution. Emeteria Cristobal. and 3. a claim or demand for its segregation on the part of its legitimate owner can only be properly made after the making of the inventory of the property which forms the assets of the partnership dissolved by the death of the husband if it be not conclusively proven that certain property is paraphernalia. she entered upon the discharge of the duties of her office with full powers to take possession of and to administer all the property of the estate of Dionisio Fulgencio. or that it belongs exclusively to a widow. and left only one legitimate son. 3. were squandered by the latter in his lifetime in gambling. wherefore the plaintiff was the sole party upon whom it was incumbent by law to fulfill the said office. Rule 88) 2. 21 PHIL 252 (1912) FACTS: Josefa Fulgencio. Petrona Clavo. Gatchalian added that Dionisio Fulgencio. with various commercial houses in Manila.75. moreover. liable for the debts of the conjugal partnership. If a person does not perform an order of judgment rendered by a court in the exercise of its probate jurisdiction. which was accepted by the court. of the nature of paraphernalia. and all other powers granted them by law. to satisfy the courts when a person is cited for examination in probate proceedings (Section 13. however. has been included among the property of the conjugal partnership. Gachalian) JOSEFA FULGENCIO & FERNANDO FULGENCIO vs. brought the sum of 2. with the exception of such property. and that consequently. conjointly with the plaintiff. the latter will have the same opportunity to claim the exclusion of the property belonging to her exclusively and that of the nature of paraphernalia. the Benita Gatchalian. that the defendant Gatchalian. Q Can probate courts issue writs of execution? A Generally. ET AL. on marrying Gatchalian. by his first marriage. Plaintiff contends that the original judgment of the CFI should be affirmed. was considerably diminished. and therefore. HELD: NO. to enforce payment of the expenses of partition (Section 3. and. )5 that the conjugal partnership of the deceased Fulgencio with the said Gatchalian. once the inventory of the property of the intestate estate has been made. although Gatchalian tendered her resignation as administratrix. issued in her behalf. insolvent..S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . therefore. produced. Hence the US SC decision should be read to mean that the CFI should dispose of this assignment of error not touched upon by the US SC decision. on his marriage with her. the required letters of administration having been issued to her. and the aforementioned sum. the husband's death. The rules. As such they are deemed to be conjugal partnership property. in the business in which she engaged with the said sum. without having examined the necessary antecedents and data. brought as property of his own only a few articles from his drug store.000 pesos in goods. Petrona Clavo. Leoncia and Gabriela were then incharge of a part of the estate of the deceased and were under the care and direction of the defendant Gatchalian. )4 that Dionisio Fulgencio. in second wedlock. ISSUE/S: Whether the wife’s paraphernal property must be included in the settlement of the husband’s estate HELD: YES. The lower court then required Benita to surrender possession of the properties subject of the complaint. except those which were the subject matter of current accounts. was under the control and in the legal possession of the Benita Gatchalian. Defendant contends that the court erred in the findings as to the procedure adopted in liquidating the partnership assets for the CFI disregarded the inventory submitted by the defendant. Leoncia Belen and Gabriela Lopez. and is not to be held as conclusive of the truth of its contents if there is other evidence in the records disclosing its inaccuracy. )3 that the defendants Petrona. The 6th assignment of error deals with the fixing the amount of the half of said alleged conjugal property at P81. From this decision arose as both the plaintiff and defendant took exception to the above ruling. Q When can a claim for segregation of a spouse’s separate property be made? A When the wife’s own property or that brought by her to the marriage. it may issue a warrant for the apprehension and imprisonment of such person until he performs such order or judgment. the capital brought to the marriage by Gatchalian. and Gabriela Lopez alleging that )1 by virtue of letters of administration. The admission in evidence without objection. Emeteria Cristobal. Sec. legatees and heirs in the possession of the decedent’s assets (Section 6. In disposing of this issue. named Fernando Fulgencio. without having taken into account the losses suffered and the debts contracted by the firm. (Fulgencio vs. Rule 90). as well as with the 100 pesos brought in by her deceased husband. the disregarded inventory submitted modified its original judgment and awarded only ₱58. saving always the right of the said widow to have her own personal property of every kind excluded. far from increasing. of the estate of the said deceased. It has not been conclusively proven that the property claimed by the administratrix is paraphernalia and belongs exclusively to the defendant Benita Gatchalian. on her marriage with the said deceased. Process. to wit: 1. legally married. that the profits obtained by the widow Gatchalian. the administratrix of the intestate estate of Dionisio Fulgencio. with the exception of the said sum of 2. . up to the time of 17 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Ronald Chua the conjugal property was not. the document is admitted for what is worth as evidence.500 pesos Mexican currency. the administratrix has a right to be placed in possession of the same for the purpose of its inventory in the special proceedings. with whom he did not have any surviving or posthumous child. all the property of the said partnership )6 that the property. without prejudice to the rights of the widow Benita Gatchalian in relation to her own property or to that of the nature of paraphernalia. Leoncia Belen. was acquired by the defendant Gatchalian with her own funds. Court of First Instance may issue warrants and processes necessary to compel the attendance of witnesses or to carry into effect their orders and judgments. Rule 142) Under the rule of inclusion unius est exclusion alterious. the same must be deemed to be conjugal partnership property and liable for the debts and obligations of the partnership. In such case. yet unsettled.042. and )7 that Gatchalian was. to satisfy the contributive shares of the devisees. amounting to the sum of 100 pesos. filed with the CFI of Pangasinan a written complaint against Benita Gatchalian. passed upon.543.000 pesos in cash and 3. these would be the only instances when the probate court can issue a writ of execution.

the parties may. and if such declaration cannot be made in a special proceeding much less can the court determine the status of petitioner as widow since this matter must of necessity depend upon the fact of death of the husband. Presumption of death. or of the affidavit in the office of the register of deeds. or without appearing his existence is proved. but. After an absence of seven years. Republic) In the Matter of the Declaration of the Civil Status of: LOURDES G. in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment No Independent Action For Declaration of Presumption of Death • The disputable presumption established by the rules of evidence that a person not heard from in seven years is dead. remain away from home for 7 years without communicating with family or friends. (n) Art. and has been missing for four years. that remedy can be invoked if the purpose is to seek the declaration of death of the husband. 392. After Petitioner had presented her evidence. Ronald Chua Sec. LUKBAN vs. A petition for judicial declaration that petitioner’s husband is presumed to be dead cannot be entertained because it is not authorized by law. or an aeroplane which is missing. she desires that her civil status be defined in order that she may be relieved of any liability under the law. It is still disputable. Q At what time does the period start to run? A The period must elapse in order to give rise to the presumption of death. a petition was filed in the CFI of Rizal praying for a declaration that Petitioner is a widow of her husband Francisco Chuidian who is presumed to be dead and has no legal impediment to contract a subsequent marriage. It is for that reason that it cannot be the subject of a judicial pronouncement of declaration. The philosophy behind this ruling is that a judicial pronouncement to that effect. which is tried or heard by. including the division of the estate among the heirs: 1. 390. would still be a prima facie presumption only. the presumption of death cannot be invoked nor can it be made the subject of an action or special proceeding. . a person shall be presumed dead if absent and unheard from for the periods fixed in the Civil Code. if it is the only question or matter involved in a case. without securing letters of administration.For purposes of settlement of his estate. (n) Art. 98 PHIL. Hence this appeal. if it is the only question or matter involved in a case. it being unknown whether or not the absentee still lives. The Solicitor General opposed the petition on the ground that the same is not authorized by law. Extrajudicial settlement by agreement between heirs. Q …? A While it is true that a special proceeding is “an application or proceeding to establish the status or right of a party. The parties to an extrajudicial settlement. if alive. . 574 (1956) 18 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . 4. and submitted for decision to. A person on board a vessel lost during a sea voyage. he shall recover his property in the condition in which it may be found. 17 days after their marriage. It is still disputable. (194) FACTS: Lourdes G. that remedy can be invoked if the purpose is to seek the declaration of death of the husband. or a particular fact”. The philosophy behind this ruling is that a judicial pronouncement to that effect. • There is no need for an independent action for Declaration of Presumptive Death for purposes of Succession. and because she intends to marry again. or the minors are represented by their judicial or legal representatives duly authorized for the purpose. who has not been heard of for four years since the loss of the vessel or aeroplane. RULE 74 SUMMARY SETTLEMENT OF ESTATES Sec. REPUBLIC OF THE PHILIPPINES. or upon which a complement court has to pass. may arise and be invoked either in an action or in a special proceeding. Thus. 1. he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. and should they disagree. While it is true that a special proceeding is “an application or proceeding to establish the status or right of a party. or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file. Q What is the reason behind the presumption? A The presumption is an arbitrary one rendered on the grounds of public policy in order that the rights depending on the life of one long absent and unheard of may be settled. The presumption is based on the general accepted fact that a normal person will not. But if such person proves to be alive. 2. a bond with the said register of deeds. The following shall be presumed dead for all purposes. the court sustained the opposition and dismissed the petition. If he disappeared after the age of seventy-five years. It is for that reason that it cannot be the subject of a judicial pronouncement of declaration. an absence of five years shall be sufficient in order that his succession may be opened.If the decedent left no will and no debts and the heirs are all of age. 391. a competent court. or a particular fact”. ISSUE/S: Whether the presumption of death can be the subject of judicial pronouncement. except for those of succession. A petition for judicial declaration that petitioner’s husband is presumed to be dead cannot be entertained because it is not authorized by law. She believes that he is already dead because he had been absent for more than 20 years. he shall be presumed dead for all purposes. Lukban contracted marriage with Francisco Chuidian. If there is only one heir. or upon which a complement court has to pass. 3. A person who has been in danger of death under other circumstances and his existence has not been known for four years. but he cannot claim either fruits or rents. as already said. even if final and executory. A person in the armed forces who has taken part in war. Q Which can be presumed dead? A Under the New Civil Code: Art. he shall be entitled to the balance of his estate after payment of all his debts. divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds. they may do so in an ordinary action of partition. whether by public instrument or by stipulation in a pending action for partition. Independently of such as action or special proceeding. or stipulation in the action for partition. Francisco left Lourdes after a violent quarrel and since then he has not been heard from despite diligent search made by her. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . would still be a prima facie presumption only. Thus. the period runs from the time when the absent person is last known to have been alive. If the absentee appears. as already said. simultaneously with and as a condition precedent to the filing of the public instrument. The balance may be recovered by motion in the same proceeding. and the price of any property that may have been alienated or the property acquired therewith. HELD: NO. even if final and executory. (Lukban vs. and if such declaration cannot be made in a special proceeding much less can the court determine the status of petitioner as widow since this matter must of necessity depend upon the fact of death of the husband. but.

Settlement is made in a public instrument. (2) Filed with proper Registry of Deeds. (and a bond is required when personalty is involved in extrajudicial representation) (in real properties. Ibanez) Public instrument is not necessary for the validity of an extrajudicial settlement. 1 of rule 74 to be executed by the sole heir of a deceased person in adjudicating to himself the entire estate left by the decedent. Q What are the different modes of settlement of intestate estate? A 1. Summary settlement of an estate of small value 5. Thus it cannot be availed of in testate proceedings. Sole adjudication by means of an affidavit 4. such will be subject to a lien and such lien cannot be substituted by a bond) Q If the decedent left two heirs X and Y and creditor B. Absent legatees and devisees or such of them as may have no knowledge of the will. Procedure: (1) Division of estate must be in PUBLIC INSTRUMENT or by AFFIDAVIT of SELFADJUDICATION in case of a sole heir. This will prevent administration of the estate or the unnecessary lengthening of the proceedings. Extrajudicial Settlement Requisites: (1) The decedent left: (a) NO will (b) NO debts (2) The heirs are all of age or the minors are represented by their judicial or legal representatives duly authorized for the purpose. Q May the heirs enter into an extrajudicial settlement when the deceased left a will? A No. The Rules specifically provide that it may only be “if the decedent left no will”.000 (this amount is jurisdictional) Allowed only in Intestate Allowed in Testate and Intestate succession succession Proper only where there are no Available even if there are debts as outstanding debts of the estate at the court will make provisions for the time of settlement the payment thereof Resorted to only at the instance May be instituted by any and by agreement of all the heirs interested party (even by a creditor of the estate without the consent of all the heirs) Amount of bond is equal to the Amount of bond is to be value of personal property determined by the court Q What is the purpose of the requirement that the extrajudicial partition be put in a public instrument or affidavit and registered with the Register of Deeds? A (registration is made by making an entry in the daybook of the RD and if real property is involved. Q Distinguish Extrajudicial settlement from Summary settlement of estates A EXTRAJUDICIAL SETTLEMENT SUMMARY SETTLEMENT Does not require court intervention Involves judicial adjudication (although in a summary proceeding) Value of the estate is immaterial Applies only where the gross estate does not exceed P10. The parties are not prevented from entering into an extrajudicial settlement but Y will be entitled to reimbursement. the right of the person to dispose of his property by will may be rendered nugatory. Can the heirs still proceed into a valid extrajudicial settlement? A Yes. 3. If its is a real estate. stipulations or affidavit duly filed with the register of deeds 5. The purpose is to inform third parties of the fact of partition especially those who may subsequently acquire the properties subject of the partition. Private instrument or oral agreement of partition as well as a compromise agreement without previous authority of the court is valid. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent. 4. The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section. Intestate proceedings 2. Ordinary action for partition Q What A 1. If the decedent left a will and no debts and heirs and legatees desire to make an extrajudicial partition of the estate. are the requisites of a valid extrajudicial settlement? Decedent died intestate No outstanding debts at the time of settlement Heirs are all of age or the minors are represented by their judicial guardians or legal representatives 19 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Extrajudicial settlement by agreement among the heirs 3. Ronald Chua of any just claim that may be filed under Section 4 of this rule. once a week for three consecutive weeks. could be cheated of their inheritance through collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of all others. • What constitutes “good reason” to warrant a judicial administration of the estate of the deceased when the heirs are all of legal age and there are no creditors will depend on the circumstances of each case. Fact of such extrajudicial settlement must be published in a newspaper of general circulation in the province. what happens if X and Y pay B? A The estate is now free from liability and X and Y can validly enter into an extrajudicial settlement.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. 2. heirs or other persons for the full period of 2 years from such distribution and such lien cannot be distributed by a bond. (Rebong vs. The law enjoins the probate of the will and public policy requires it because unless the will is probated and notice thereof given to the whole world. (See Hernandez) Affidavit of Self-Adjudication – It is an affidavit required by Sec. they must first • present that will to the court for probate and • divide the estate in accordance with the will. only Y pays B. There will be a substitution of creditors. Q Suppose in the previous example. a transcription at the back of the certificate is also required) To serve as constructive notice and this means notice to others. Note: The bond is required only when personalty is involved. it shall be subject to a lien in favor of creditors. (3) Publication of notice of the fact of extrajudicial settlement once a week for 3 CONSECUTIVES (4) Bond filed equivalent to the value of PERSONAL property.

she should be appointed the administratrix thereof in as much as she had the better right than the applicant. 1 and 2 of Rule 74 of the Rules of Court 1. the heirs may apply to the competent court after the required publications to proceed with summary partition and. Q What constitutes “Partial Execution”? A That there must be possession coupled with exercise of ownership. is subject to exceptions pursuant to the CCP. “each co-owner may demand at any time the partition of the thing owned in common insofar as his share is concerned” And as provided in Article 496 “partition be made by…judicial proceedings” and “shall be governed by the Rules of Court” Q Are the heirs compelled by the Rules to enter into an extrajudicial settlement if all the requisites are present? Pablo instituted an action for the judicial administration of Luz’s property which consisted merely of her share in her father’s intestate estate. Sole heir who adjudicates to himself the entire estate by means of an affidavit They are required to file the bond SIMULTANEOUSLY with and as a CONDITION PRECEDENT to the filing of the public instrument Q Why is it required that the parties concerned file an affidavit wherein they shall certify under oath the value of the personal property? A To enable the Register of Deeds to determine the sufficiency of the bond. Q What is meant by an “Ordinary Action of Partition”? A One filed by persons who are co-owners of a certain property. To this. She alleged that since Luz left no indebtedness. ISSUE: W/N the judicial administration of Luz’s property is proper. Q What is the rule with respect to the administration of the estate of the decedent? A The Rules of court says “If • no executor is named in the will or • if a person dies intestate administration shall be granted …” This provision enunciates the general rule that when a person dies leaving property in the Philippines. Vda de Garcia) Q Is the rule subject to any exception? A Secs. Q Why must the amount of the bond be equivalent to the value of the personal property? A For the protection of any heir who may be unlawfully deprived. Q Why is a bond required? A For the payment of any just claim that may be filed under Sec 4 Rule 74 of the Rules of Court. court granted the judicial A Sec 1 Rule 74 of the Rules does not provide for this scenario as it seems to require either an affidavit/public instrument to be filed in the Register of Deeds. during the pendency of the abovementioned administration proceedings. or of a person dies intestate. This rule however. Q Is it permissible to have an oral partition? left no will or in case he had left one.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Second exception: If the property left does not exceed ten thousand pesos (in the Utulo case.” This provision enunciate the general rule that when a person dies leaving property in the Philippines. First exception: When all the heirs are of lawful age and there are no debts due from the estate. In other words: (1) when extrajudicial settlement is proper and (2) in case of summary of settlement of estates of small value Utulo v.. his property should be judicially administered and the competent court should appoint a qualified administrator. the rule is permissive and not mandatory. his property should be JUDICIALLY ADMINISTERED and the competent court should appoint a qualified administrator in the order established in the section in case the deceased 20 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . The Rules state that the “parties may …divide the estate among themselves” Hence. Luz later married Pablo Utulo. Vda de Garcia FACTS: Juan Garcia Sanchez died intestate and was survived by his wife. P6K) the heirs may apply to the competent court after the required publications to proceed with summary partition and. should he fail to name an executor therein (Utulo v. HELD: NO. Nevertheless. after paying all the known obligations to partition all the property constituting the inheritance among themselves pursuant to law without instituting the judicial administration and the appointment of an administrator. one of whom was named Luz Garcia. the lower administration. Leona filed an opposition. Parties to an Extrajudicial settlement (a) By public instrument or (b) Stipulation in a pending action for partition 2. they may agree in writing to partition the property without instituting the judicial administration or applying for the appointment of an administrator. To answer for any claim which may arise subsequent to the extrajudicial settlement. after paying all the known obligations to partition all the property constituting the inheritance among themselves pursuant to law without instituting the judicial administration and the appointment of an administrator. partial execution of an oral contract removes the same from the operation of the Statute of Frauds. there was no reason for the said judicial administration but she stated that should the court grant the administration of the property. if the property left does not exceed six thousand pesos. According to the first. Leona and three children. or in case he had left one and he fails to name an executor therein. According to the second. Q What is meant by “Stipulation in a Pending Action”? A That there is already a pending action for settlement before the courts yet the parties nonetheless agree to enter into an extrajudicial settlement. Hence this appeal. But as in all contracts required by law to be in writing. A No. Ronald Chua Such third party will be put on notice that the property he is buying is subject to an encumbrance of two years. in case the deceased left no will. when all the heirs are of lawful age and there are no debts due from the estate. in the order established in the section. the administration shall be granted. Pursuant to Article 493 Title II of the New Civil Code.etc. The Code of Civil Procedure provides: “ If no executor is named in the will. Q Who is required to file this bond? A 1. However. An action was filed in the CFI Tarlac by Leona for the administration of her husband’s property. 2. they may agree in writing to partition the property without instituting the judicial administration or applying for the appointment of an administrator. Luz died and left no children her only forced heirs being her mother Leona and her husband Pablo.

It must follow that the intrinsic validity of partition not executed with the prescribed formalities does not come into play when there are no creditors or the rights of creditors are not affected. Ronald Chua When a person dies without leaving pending obligations to be paid. The object of registration is to serve as constructive notice and this means notice to others. the protection of creditors and at the same time. the judicial administration and the appointment of an administrator are superfluous and unnecessary proceedings. The sisters’ answer in intervention alleged that there had been a partition among them and that plaintiff was in bad faith. It must follow that the intrinsic validity of partition not executed with the prescribed formalities does not come into play when there are no creditors or the rights of creditors are not affected. whether of age or not. Note that the last sentence of the section speaks of debts and creditors. it is competent that for the heirs of an estate to enter into an agreement for distribution in a manner and upon a plan different from those provided by law. are not bound to submit his property to a judicial administration which is always long and costly or to apply for the appointment of an administrator by the court. courts of equity have enforced oral partition when it has been completely or partly performed. Plaintiff attempted to repurchase the land for P150 but the defendant refused to part with the property. Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Andal FACTS: Plaintiff Cresencia Hernandez and her sister. while the rule provides that the decedent must not have left any debts. independent and in spite of the Statute of Frauds. Section 1 of Rule 74 contains no express or clear declaration that the public instrument therein required is to be constitutive of a contract or 21 | partition or an inherent element of its effectiveness as between the parties. it is sufficient if any debts that may have been left have been paid at the time the extrajudicial settlement is entered into. The requirement that a partition be put in a public instrument and registered has for its purpose. However. It was also claimed that some properties of considerable value were not included in said partition. This portion purports to be the combined shares of the intervenors allotted to them in a verbal partition alleged to have been made by them. and they may recover their individual rights. In the petitioner’s answer to the opposition. And this Court had no apparent reason in adopting this rule to make the efficacy of a partition as between the parties dependent on the execution of a public instrument and its registration. their relation to the property left by their ancestor is the same as that of any other co-owners in common. Andal) Hernandez v. The sisters wanted P850 which was the amount offered by the defendant) Meanwhile. The court finding that an extrajudicial settlement had already been entered into by the heirs dismissed the petition. When there are no debts and the heirs are all adults. Pursuant to Sec 1 of Rule 74 of the ROC. Note that the last sentence of the section speaks of debts and creditors. The requirement that a partition be put in a public instrument and registered has for its purpose. defendant resold the property to the vendors for P970. intervenor in this case. justify the institution of administration proceedings because such questions can be litigated in an ordinary action for partition. This petition was opposed by Conchita Torres. he contended that despite the extrajudicial partition attempt at the actual designation of their respective shares have failed. it is competent that for the heirs of an estate to enter into an agreement for distribution in a manner and upon a plan different from those provided by law. (Torres v. inherited a parcel of land from their father. the same as any other co-owners of undivided property. Section 1 of Rule 74 contains no express or clear declaration that the public instrument therein required is to be constitutive of a contract or partition or an inherent element of its effectiveness as between the parties. the protection of the heirs themselves against tardy claims. Torres) Torres v. On appeal the defendant and intervenors made one assignment of error. the protection of the heirs themselves against tardy claims. ISSUE: Is writing the act that confers legality upon the agreement? HELD: On general principle. thus needing the court’s intervention. HELD: NO. No rights of creditors being involved. The object of registration is to serve as constructive notice and this means notice to others. the SC held that where the decedent left no debts and heirs or legatees are all of age. prayed for the issuance in his favor of letters of administration in connection with the properties left by the decedent. the protection of creditors and at the same time. Torres FACTS: Alberto Torres. The subsequent bare allegation that the estate has an existing debt from third persons without specifying the creditor and other details in regard thereto cannot be considered a concise statement to constitute a cause of action nor does the unverified statement that there are other properties not included in the deed of extrajudicial partition in the possession of one of the heirs. In addition.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . And this Court had no apparent reason in adopting this rule to make the efficacy of a partition as between the parties dependent on the execution of a public instrument and its registration. The lower court declared this resale was illegal and in bad faith. ISSUE: W/N a special proceeding is necessary for the settlement of the estate of the deceased. as in this case. Hence.000 from third persons which Alberto claimed was not incorporated in the petition by reason of oversight. courts of equity have enforced oral partition when it has been completely or partly performed. Defendant was ordered to execute a deed of sale in favor of plaintiff. It was alleged therein that he was unaware of any existing debt or obligation contracted by the deceased or her estate. one of the heirs of the deceased on the ground that the appointment of an administrator is unnecessary because the heirs had already entered into an extrajudicial partition and settlement of the estate pursuant to Sec 1 Rule 74 of the ROC. she filed a complaint announcing that she was willing to repurchase her sisters’ shares for P860 plus expenses incurred in the execution of the deed. one of the legitimate children of Paz E. Hence this appeal. No rights of creditors being involved. independent and in spite of the Statute of Frauds. (Hernandez v. (It appears that Cresencia offered to purchase her sisters’ portion for P150. Q What is the effect of the existence of debts? A It is only when debts exist and there is no way of collecting them extrajudicially because the creditors have not reached an amicable settlement with the heirs that they can compel the filing of special proceedings before the court for the liquidation of said debts. The Intervenors sold a portion of this land to defendant Zacarias Andal for P860. Q Is the requirement that the settlement should be made in a public instrument necessary for the validity of the extrajudicial partition? A On general principle. there is no necessity for the institution of special proceedings and the appointment of an administrator for the settlement of the estate because the same can be effected either extrajudicially or through an ordinary action for partition. the petitioner this time alleged that the estate has an existing debt of P50. It has been uniformly held that in such case. his heirs. SiguionTorres who died intestate. that the lower court erred in refusing to admit oral evidence for proving the contract of partition on the ground that it was not admissible.

Sec. Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Geronimo Arcillas. allowance of the will. Whenever the gross value of the estate of a deceased person. The action to annul a deed of extrajudicial settlement on the ground of fraud must be filed within four years from discovery of the fraud. If the intention were otherwise. Ronald Chua In further application of the this rule to the case at bar. there is no necessity for the institution of special proceedings and the appointment of an administrator for it is superfluous and unnecessary.” Q What is the remedy of the aggrieved party after an extrajudicial settlement is approved by the court? A Filing either a petition for relief under Rule 38 or a new action to annul the settlement within the period established by the statute of limitations. they view the above section to be mandatory upon the heirs so long as the deceased left no will nor any pending obligations to be paid and the heirs are all of legal age. the respondents Geronimo and the CFI judge claim that in as much as the aforementioned minimum requirements of Sec 1 Rule 74 obtain. extrajudicial settlement or ordinary action for partition. Rule 74 provides that “it shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the death of the decedent. without the appointment of an executor or administrator. The subsequent bare allegation that the estate has an existing debt from third persons without specifying the creditor and other details in regard thereto cannot be considered a concise statement to constitute a cause of action nor does the unverified statement that there are other properties not included in the deed of extrajudicial partition in the possession of one of the heirs. The court shall make such order as may be just respecting the costs of the proceedings. whether he died testate or intestate. and all orders and judgments made or rendered in the course thereof shall be recorded in the office of the clerk.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . and the order of partition or award. 22 | While Sec 1 allows the heirs to divide the estate among themselves as they may see fit. it does not compel them to do so if they have good reasons to take a different course of action. it does not compel them to do so if they have good reasons to take a different course of action. and such persons. does not exceed ten thousand pesos. Montejo) Arcillas v. The division or partition should be considered as final settlement of the estate of the deceased and no administrator can thereafter be appointed to take charge of and administer the estate. and after such other notice to interested persons as the court may direct. or to resort to an ordinary action of partition. which had not been paid. which shall be held not less than (1) month nor more than three (3) months from the date of the last publication of a notice which shall be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. ISSUE: W/N the heirs are precluded from instituting administration proceedings if the estate has no debts and obligations and the deceased left no will and they are all of legal age. In other words. Unless and until it is shown that there were debts existing against the estate. the framer of the rule would have employed the word shall as was done in other provisions that are mandatory in character. or by their guardians or trustees legally appointed and qualified.1 Rule 74 of the ROC does not preclude the heirs from instituting administration proceedings even if the estate had no debts or obligation if they do not desire to resort for good reason to an ordinary action for partition.1 Rule 74 of the ROC does not preclude the heirs from instituting administration proceedings even if the estate had no debts or obligation if they do not desire to resort for good reason to an ordinary action for partition. if otherwise. they may do so in an ordinary action for partition. Having decided to institute administration proceedings instead of resorting to the less expensive modes of settlement of estate (i. to determine who are the persons legally entitled to participate in the estate. If the intention were otherwise. the petition for administration was improper. Besides. On petition for certiorari filed by Aurelio. the framer of the rule would have employed the word shall as was done in other provisions that are mandatory in character. are they precluded from instituting administration proceedings? A No. 2. HELD: NO. and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due. if proper. and without delay. Montejo FACTS: Eustaquio Arcillas died intestate. (Arcillas v. Sec. justify the institution of administration proceedings because such questions can be litigated in an ordinary action for partition Q If the estate had no debts or obligations. Section 1. such discovery does not destroy the partition made. Note that the word may is used not only once bit in the whole section which indicates an intention to leave the matter entirely to the discretion of the heirs. Aurelio countered that there are still other properties of the estate besides the lot and that the administration proceedings could not be dispensed with since (1) there was no unanimity among the heirs for extrajudicial partition and (2) that some of the heirs had been unduly deprived of their participation in the estate. The resultant delay and extraordinary expenses incurred thereafter are consequences which must be deemed to have been voluntarily assumed by the heirs themselves so that they may not in the future be heard to complain on these matters. if any there be. the parties may without securing LOA divide the estate among themselves as they see fit and should they disagree.e. if it involves real estate. It simply furnished ground for the application by the creditor for the appointment of an administrator or for the payment of his credit as provided in Section 4 Rule 74. Further. in their own right. opposed the issuance of the letters of administration arguing that in as much as Lot 276 was the only property left by the deceased and the deceased had no debts. Q Is the partition entered into by the parties final? A Yes. Summary settlement of estates of small value. Said section is not mandatory or compulsory as may be gleaned from the word may . if they are of lawful age and legal capacity. the court may proceed summarily. Sec. Said section is not mandatory or compulsory as may be gleaned from the word may . His children filed a petition for the issuance of letters of administration in favor of Aurelio Arcillas preparatory to the formal settlement of Eustaquio’s estate. or to resort to an ordinary action of partition. shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively. shall be recorded in the proper register's office. The lower court denied the petition for issuance of LOA on three grounds: 1) to obviate the necessity of spending uselessly which would only deplete the funds of the estate 2) to avoid unnecessary delay in partition and 3) by virtue of Sec 1 Rule 74 of the ROC which provides that “if the decedent left no will and no debts and the heirs and legatees are all of age. While Sec 1 allows the heirs to divide the estate among themselves as they may see fit. the heirs may not be rebuffed in the exercise of their discretion granted under Sec 1 Rule 74 merely on the ground that the expenses usually common in administration proceedings may deplete the funds of the estate. Note that the word may is used not only once bit in the whole section which indicates an intention to leave the matter entirely to the discretion of the heirs. the division in conclusive so much so that even if unpaid debts are later discovered. the truth or veracity of Aurelio’s claim as to the alleged existence of other properties of the deceased aside from the lot in question can be more adequately ascertained in administration proceedings rather than in any other action. and that fact is made to appear to the Court of First Instance having jurisdiction of the estate by the petition of an interested person and upon hearing. to grant. one of the heirs.

it will no longer be disturbed if there is no showing that the procedural requirements laid down under Sec 2. may require the distributees. Q What is the nature of a summary settlement? A In a summary manner. the same may be required only where personal property is distributed and not where realty is the subject of the partition. Such claim must be ventilated in an independent action and the probate court should proceed to the distribution of the estate if there are no legal obstacles to it.000. and 4. Rule 74 have not been followed. Sec. without the appointment of any administrator or executor. Ronald Chua Note From Herrera: The MTC & MCTC. . and may issue execution. devisees and legatees are concerned. This is notwithstanding the fact that the ROC promulgated in 1986 still provides that it be filed with the RTC BP 129 enacted in 1980 is a substantive law which prevails over the ROC which is procedural in nature. 4. A BP 129 has conferred exclusive jurisdiction in the inferior courts i. is a sufficient security for any claim which may be filed under Sec 4 Rule 74. are paid. Q When is a summary settlement proper? A Whether testate or intestate for as long as the gross value of the estate does not exceed ten thousand pesos.The court. the estate of the deceased is valued.e the MeTC. if any.000 in Metro Manila. if circumstances require. BP 129 as amended. in so far as the shares of the heirs. such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. Where the gross value of the estate does not exceed P20. Sec. Publication of a notice once a week for three consecutive weeks in a newspaper of general circulation. to file a bond in an amount to be fixed by court. Q What are the steps for the summary settlement of estates of small value? A The following are the steps for the summary settlement of estates of small value: 1. the court having jurisdiction of the estate may. unless within two years after the distribution of the estate it appears that there are outstanding debts or that an heir or other person has been unduly deprived of his lawful participation from the estate in which case any creditor heir of interested person may compel the judicial distribution and partition of said estate in the ordinary manner.If it shall appear at any time within two (2) years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule. is allowed. Such bond and such real Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . . his debts. That there are no existing debts 3. Q Where is the petition for the summary settlement of an estate of a small value filed? Q What happens if no appeal is taken from the order of summary settlement? A Where no appeal is taken from the order of summary settlement which declares that the dispositions in the will. Q What are the requisites for a valid summary settlement of an estate of small value? A 1.1) This has resulted in investing said inferior courts with exclusive jurisdiction in summary settlement of estate of small value since the maximum jurisdictional limit on the gross estate involved in said proceeding is P10. Q What happens after the court issues an order granting the allowance of the will? A The distributees in their own right if they are of age or by their guardians or trustees legally appointed and qualified “if otherwise. are in accordance with law. A The summary distribution of the estate of a deceased person ordered by the competent court is final and definitive. 23 | Q Compare the bond required under Sec 1 of the rule for extrajudicial settlement with the bond required under this section for summary settlement. it should be presented for probate. MuTC.4 Sec 33. if any. before allowing a partition in accordance with the provisions of the preceding section. for after all such distribution must always be subject to the results of the suit. The remedy of the claimant is to have the proper annotation of his lis pendens entered. that an heir or other person has been unduly deprived of his lawful participation in the estate. after hearing.000 (Sec 19. Distribute the estate in accordance with the will or the rules on intestacy as the case may be. now has probate jurisdiction where the value of the estate does not exceed P100. It is not proper to delay the summary settlement of a deceased person just because an heir or third person claims that certain properties do not belong to the estate but to him. Liability of distributees and estate. Q What is the remedy of a person unduly deprived of his lawful participation in the estate.000 or P200. That a proper hearing is held 5. If the gross value of the estate is less than ten thousand pesos. A EXTRAJUDICIAL SUMMARY Amount of the bond is equal to the Determined by the court value of the personal property as established in the instrument of adjudication In both cases. the heirs and legatees are declared and the dissolution is made. Determine the gross value of the estate. if property other than real is to be distributed. If the deceased died with a will. Q Why is a bond required for personalty and not for realty? A Lien as recorded. it shall appear that there are debts outstanding against the estate which have not been paid. or that an heir or other person has been unduly deprived of his lawful participation payable in money. his will. And if within the same time of two (2) years. against the bond provided in the preceding section or against the real estate belonging to the deceased. Note: The probate court is not the best forum for the resolution of adverse claims of ownership of any property ostensibly belonging to the decedent’s estate. MuCirTC in all matters of probate both testate and intestate. Bond to be filed by distributees. A hearing is set to determine the existence of debts. all in a single hearing and in a single order as far as this is practicable. The gross value of the estate of a deceased person does not exceed ten thousand pesos 2. shall be entitled to receive and enter into possession of the position awarded to them. 3. file a petition with the MTC 2. This is done with the least possible delay though not necessarily in one hearing. by order for that purpose. That a bond has been duly filed 4.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . If the court finds that there are. or both. 3. settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof. it orders the payment of debts. bond cannot replace the lien on real property Q When is bond required under Sec 3 Rule 74? A Although this section requires the filing of a bond in connection with summary administration and distribution of the estate of the decedent. conditioned for the payment of any just claim which may be filed under the next succeeding section.

After the maturity of said loan. That is.200 from PNB guaranteed by a mortgage on ½ of the land. Thus. an ordinary action may be instituted against the distributes within the statute of limitations BUT NOT against the bond. Reason: registration proceedings could not be used as a shield for fraud enriching a person at the expense of the other. accident. (2) The existence of debts against the estate. adjudicating to herself alone the said land. Carreon died. (6) Reopening by intervention within anytime before rendition of judgment. The trial court held that plaintiff’s claim has no legal basis. more than two years had elapsed. an (2) When all the persons or heirs of the decedent have taken part in the extrajudicial settlement. Said mortgage was likewise annotated in the TCT. The right to have such lien cancelled became vested on appellee Agcaoili and that the same had become Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . (Carreon v. or other persons for the full period of two (2) years after such distribution. Note: The bar against distributes from objecting to an extrajudicial partition after the expiration of two years is applicable only to the ff. • Such lien cannot be discharged nor the annotation be cancelled within the 2 year period even if the distributees offer to post a bond to answer for contingent claims from which lien is established. file a motion in court wherein such summary settlement was had. as long as it is within the reglementary period of 2 years (7) New action to annul settlement within reglementary period of 2 years. The lien must be annotated in the certificate of title for the protection of unpaid creditors and heirs unlawfully deprived of their participation. The lien created by virtue of said annotation is effective only for a period of two years.: (1) To persons who have participated or taken part or had notice of the extrajudicial partition. • Where the estate has been summarily settled. Rule 74 of the ROC was annotated thereon. a purchaser in good faith of the property may defeat the lien constituted for their protection. From the time the TCT was issued to Celerina to the moment the deed of sale in favor of Agcaoili was issued and registered. • Exception to prescription of actions: There is one instance when prescription cannot be invoked in an action for reconveyance. Agcaoili) Carreon v. Celerina also filed a motion to intervene but the same was dismissed by the trial court. it was the legal owners of the land who had always been in possession of the same. Instead. the children of Celerina with the deceased husband filed a complaint against Spouses Agacaoili seeking to gave the deed of sale executed by their mother declared as one of mortgage and to recover ½ pro indiviso of said land. Agcaoili FACTS: Bonifacio Carreon and Celerina Dauag acquired a homestead land during their marriage. ISSUE: W/N the plaintiffs have a cause of action based on the annotated statement that the land was subject to Sec4 of Rule 74 HELD: NO. notwithstanding any transfers of real estate that may have been made. Celerina thereafter. final order or other proceeding to be set aside. when the plaintiff is 24 | in possession of the land to be reconveyed. Celerina executed an affidavit wherein she declared that she was the only heiress of her husband and at the same time. Subsequently. such lien becomes functus officio and it may be cancelled at the instance of the transferee of the land involved. the mortgage released and the Deed of Absolute Sale was executed and registered in favor of Agcaoili. • After the lapse of 2 years. Ronald Chua estate shall remain charged with a liability to creditors. borrowed P1. or (3) If there is an undue deprivation of lawful participation payable in money. Q What is the effectivity of the lien created by this section in favor of unpaid creditors or heirs unduly deprived of their lawful participation? A The lien established is effective only for two years. she sold the land to Rufo Agcaoili for P3. the unpaid creditor may. the Court allowed the action for reconveyance to prosper despite the lapse of 10 years from the issuance of title to the land.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . for the payment of his credit. A TCT was issued in her name but a lien to the effect that her title was subject to Sec4. Q Must the lien be annotated in the certificate of title? A Yes. Important Doctrines: • An heir deprived of his share may file an action for reconveyance based on an implied or constructive trust which prescribes 10 years from the date of registration or date of issuance of certificate of title or from actual discovery of fraud if the registration was made in bad faith. and not more than 6 months after such judgment or final order was entered. Otherwise. Q What is the rationale behind the rule that the property shall be subject to an encumbrance of two years? A 2 years is believed to be a reasonable time for creditors and other interested partied to be on notice of the extrajudicial settlement. – The registered owners were never in possession of the disputed property. excusable negligence) 60 days after the petitioner learns of the judgment. Remedies of the Aggrieved Parties After Settlement of the Estate: (1) Within 2 years – claim against the bond or the real estate or both (2) Rescission in case of preterition of compulsory heir in partition tainted with bad faith (3) Reconveyance of real property (4) Action to annul a deed of extrajudicial settlement on the ground of fraud which should be filed within 4 years from the discovery of fraud (5) Petition for Relief on the ground of FAME (fraud. heirs. After the two-year period. mistake. plaintiff-appellants contend that defendant appellees were that there existed a trust relationship between them and the appellants and that such being the case. When Settlement of Estates in the Courts may be Compelled: (1) If there is an undue deprivation of lawful participation in the estate. within 2 years. Resource even though the land acquired was a homestead) The loan from the bank was then paid.000 (Sale was approved by the Secretary of Agriculture and Nat. the action against appellees is imprescriptible. On appeal.

A NO. (McMiking v. An administrator who has been duly appointed and has taken possession of the property of his decedent and who upon proper proceedings and order of court turns over the property to the owners thereof after a partition among them in accordance with Sec 596 and 597 of the Code of Civil Procedure is approved performs his full duty and is discharged from any liability. Q What is the remedy if fraud is alleged? A If annulment of the Extrajudicial settlement is sought on the ground of fraud. Moreover. (b) mentally incapacitated person. (c) prison or (d) one outside the Philippines may still file a claim within one year after the disability is removed. A (a) minor. The SC found no reason to apply the proposition that he is deemed to be holding the land in trust for the children of Celerina Dauag. Subject to the right of appeal. he may present his claim within one (1) year after such disability is removed Q What does Sec 5 provide? A It provides the exception to the rule that unpaid creditors and heirs unlawfully deprived of their participation in the estate have two years within which to file a claim against the estate. It would be necessary to appoint upon proper application and notice. leaving the partitioning persons in undisturbed possession of the remainder. Doroteo Velasco for whom the deceased Barretto was surety would not have been liable himself had this action been commenced against him so that if the principal is not liable. thereby preserving the partition intact in all its parts. under proper proceedings and order of court and after compliance with the provisions of such sections. the disability must exist at the expiration of the two-year period. The principal Velasco is not liable because the discovery of an unpaid obligation (in this case. Sy Conbieng) Q Will entire property be under administration? A No. for such registration constitutes constructive notice to the whole world. it would not be the same estate represented by the prior administrator and he would not be the administrator of the new estate by virtue of his appointment in the old. Q When is the two year effectivity period reckoned? A It is reckoned from the date and time inscribed is placed Q Must you go to court to have the annotation in the certificate of title cancelled after the lapse of two years? FACTS: Mcmicking v Sy Conbieng Margarita Jose died and Palanca was appointed administrator of her estate and Lao and Cunyao became the latter’s sureties. Period for claim of minor or incapacitated person. RULE 75 PRODUCTION OF WILL. Q May the lien be substituted by a bond? A No. The discovery of a debt after the partition does not permit the whole property in possession of the partitioning parties to be thrown into administration. To satisfy such claims. . However. A partition of the estate of Lao was approved thus the administrator Velasco delivered to the heirs and legatees the properties of the estate. Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Q What is the effect of discovery of unpaid debts after the extrajudicial settlement has been effected? A The partition provided for in these sections is binding and valid even though not all of the debts outstanding were paid before the partition was made. Sy Conbieng) Sec. another administrator for the purposes set forth in said sections (McMiking v. It simply furnishes ground for the application by the creditor for the appointment of an administrator. Conclusive as to execution. 1. ISSUE: HELD: NO. the delivery of the property to such partitioning owners by such administrator. Q What is the effect of an extrajudicial partition after an administrator had already been appointed? A Where after the appointment of an administrator. (McMiking v. Sy Conbieng) 25 | Nature of Probate Proceedings (1) In Rem – binding on the whole world (2) Mandatory – No will shall pass either real or personal property unless it is proved and allowed in the proper court. this is subject to the proviso that the disability existed during the two-year period. A claim was thereafter made against Barretto as surety of Velasco. Later. the surety cannot be. Sy Conbieng) Q Is administration the only remedy? A Even after the discovery of a debt subsequent to a partition. is in effect. ALLOWANCE OF WILL NECESSARY Sec. The lien annotated therein becomes functus officio that is. The discovery of an unpaid obligation after partition does not destroy the partition. the partitioning persons may prevent any administration whatever by paying the debt discovered. the court ordered Velasco to pay the claims as administrator of the estate of the surety Lao. Palanca was removed as administrator of the estate of Jose and McMicking replaced him. or is in prison or outside the Philippines. . The partition is still binding and valid. it is already a performed function. W/N the estate of Barretto is liable. such allowance of the will shall be conclusive as to its due execution.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty .If on the date of the expiration of the period of two (2) years prescribed in the preceding section the person authorized to file a claim is a minor or mentally incapacitated. Allowances necessary. the due making of the inventory of the property and the taking possession thereof by such administrator and agreement is made between the owners thereof. Ronald Chua functus officio. the claim on Velasco as surety for Palanca) after an extrajudicial partition does not destroy the partition applied for by Velasco. Such lien cannot be discharged nor the annotation cancelled within the two year period even if the distribute offers to post a bond to answer for the contingent claims for which the lien is established. It simply furnishes ground for the application of the creditor for the appointment of an administrator (McMiking v. such action must be filed within 4 years from the discovery of the fraud. Q What is the effect of the reopening of the partition upon discovery of unpaid debts? A While at any time. within two years after such partition the property or portion thereof in possession of the partitioning parties may be placed in administration in the event of the discovery of unpaid debts. 5. a discharge of such administrator as to all future obligations and responsibilities in relation to said property. It was learned that Palanca was indebted to the estate of Jose.No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Only so much of the property is subject to such administration as is sufficient to pay the claim discovered. Such discovery is deemed to have taken place when the instrument was filed with the Register of deeds and new certificates of title was issued.

No. criminal action will not lie in this 26 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . that the same was appealable independently of the issue of implied revocation.). claimants to be heirs of the deceased filed their oppositions to the probate asked. The revoked will. ISMAELA DIMAGIBA. and when the probate is granted. a will may be probated: 1. The will instituted the Dimagiba as the sole heir of the estate of the deceased. upon petition by him to the court having jurisdiction for the allowance of his will. 21 SCRA 428 (1967) FACTS: The heirs intestate of the late Benedicta de los Reyes have petitioned for a review of the decision of the Court of Appeals (in CA-G. and (b) whether the order of the Court of origin overruling the estoppel invoked by oppositors-appellants had likewise become final HELD: A probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last will and testament. the fact that a will was duly executed with the formalities required by law and that the testator was in a condition to make a will. EUSEBIO REYES and LUISA REYES vs. and overruling the opposition to the probate. The presentation and probate of a will are requirements of public policy. It cannot be impugned on any of the grounds authorized by law. An instrument which makes no disposition of property but appoints an executor is entitled to probate. So an instrument which neither disposes of property nor appoints an executor is not testamentary in character. which are entitled to respect as a consequence of the decedent's ownership and right of disposition within legal limits. in any separate or independent action or proceeding. expressed wishes. but deferred resolution on the questions of estoppel and revocation "until such time when we shall pass upon the intrinsic validity of the provisions of the will or when the question of adjudication of the properties is opportunely presented. but which conveyances were finally set aside by this Supreme Court. fraud. however. there had been no legal revocation by the execution of the 1943 and 1944 deeds of sale. CFI appointed Ricardo Cruz as administrator for the sole purpose of submitting an inventory of the estate. intimidation. As such. 831 of said Court. substantial compliance is acceptable when the purpose of the law has been satisfied. because the latter had been made in favor of the legatee herself. It is the statutory method of establishing the proper execution of the instrument and giving notice of its contents. Ronald Chua (3) Imprecriptible – because of the public policy to obey the will of the testator (4) The doctrine of estoppel does not apply Note: In determining the extrinsic validity of the will. except that of fraud. because the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but never intended to be so rigid and inflexible as to destroy the testamentary privilege. Estoppel cannot be raised in probate proceedings. ISSUE/S: (a) whether the decree of the CFI allowing the will to probate had become final for lack of appeal. Whether the order overruling the allegation of estoppel is still appealable or not. Grounds advanced for the opposition were forgery. menace." Whereupon. during the lifetime of the testator. it resolved against the oppositors and held the will of the late Benedicta de los Reyes "unaffected and unrevoked by the deeds of sale. executed on October 22. irrespective of whether its provisions are valid and enforceable or otherwise. and was not acting under duress.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty ." Afterwards. the probate owner is final and appealable. and in due time. the will is genuine NOTE: the conclusiveness of such matters only refer to the EXTRINSIC VALIDITY of a will. Q What is the effect of the allowance of a will? A A A probate decree finally and definitely settles all questions concerning capacity of the testator and the proper execution and witnessing his last will and testament. cannot be probated. irrespective of whether its provisions are valid and enforceable or otherwise. Although it be executed with all the formalities required by law. The provision of notice by publication as a prerequisite to the allowance of a will is constructive notice to the whole world. and that the will is genuine and not a forgery. is not entitled to probate. the capacity of the testator has been established (i. Subsequently. Q What does due execution refer to? A Due execution means that 1. that contrary to the claim of oppositorsappellants. Q What is the extent of the court’s jurisdiction in the probate of a will? appeal in special proceedings from an order or judgment xxx where such an order of judgment (a) allows or disallows a will” (Fernandez vs. that specifically prescribes that “any interested person may The probate of a will by the probate court having jurisdiction thereof is usually considered as conclusive as to its due execution and validity. It would be a non sequitur to allow public policy to be evaded on the pretext of estoppel. admitting to probate the alleged last will and testament of the deceased. duress. 31221-R) affirming that of the Court of First Instance of Bulacan. the oppositors elevated the case to the Court of Appeals. etc. he was of sound mind and did not act under fraud. the judgment of the court is binding upon everybody. the defense is patently unmeritorious. or undue influence. at a reasonable time after the death of the testator 2. estoppel by laches of the proponent and revocation of the will by two deeds of conveyance of the major portion of the estate made by the testatrix in favor of the proponent in 1943 and 1944. R. The intrinsic validity of a will is governed by the laws of legitimes. (Icasiano vs.e. being primarily designed to protect the testator's. Q What is the nature of the probate of a will? A The probate of a will in this jurisdiction is a proceeding in rem. and affirmed the decision of the CFI. in Special Proceeding No. and it is so recognized by express provisions of Section 1. the formalities of the law has been complied with 2. 3. Icasiano) Q What is the meaning of “probate of a will”? A The probate of a will is a judicial act whereby an instrument is adjudged valid and is ordered to be recorded. Dimagiba) DIONISIO FERNANDEZ. A codicil should be probated although it contains nothing but the revocation of a former will. The CA admitted the will to probate. Q When must a will be presented for probate? A Under Section 1. 1930. CFI found that the will was genuine and properly executed. Rule 109. vices of consent of the testatrix. Q What is the purpose of probate? A The purpose of probate is to establish conclusively as against everyone. The petition was set for hearing. and consequently. Ismaela Dimagiba submitted to the CFI a petition for the probate of the purported will of the late Benedicta de los Reyes. even against the State. had become final for lack of opportune appeal. once and for all. the probate order is final and appealable. Hence. and is also conclusive that the testator was of sound and disposing mind at the time when he executed the will. Rule 76. As such. Q What sort of instruments must be probated? A All instruments of a testamentary character must be probated in order to become operative to transfer title to either real or personal property.

On appeal to this court. unless he agreed to perform such obligation or else made representation that he was well equipped to obtain information as to the death or the maker of the will in his custody. 9 months later. (Pastor. within twenty (20) days after he knows of the death of the testator. (Balanay vs. the issue by and large is restricted to the extrinsic validity of the will. (Mercado vs. 16 months after the probate of the will of Ines Basa. Ines Basa. the Court’s area of inquiry is limited to the extrinsic validity of the will as the testamentary capacity and compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court. 2. Conclusive presumptions are inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong. The reinvestigation dragged on for almost a year when the CFI ordered that the case be tried on the merits. the law will not admit any proof to overthrow the legal presumption that it is genuine and not a forgery. 66 PHIL. and that the will is genuine and not a forgery. 3 months later Basa charged the Mercado for the second time with the same offense. For the fourth time. in any separate or independent action or proceeding. Any inquiry into the intrinsic validity or efficacy of the provision thereof or the legality of any devise or legacy is premature. dismissed the complaint. Pampanga. filed a bond and engaged the services of counsel to handle his defense. In the extreme case where the provisions of the will are of dubious legality. Petitioner moved to dismiss the case claiming again that the will alleged to have been forged had already been probated and. The motion was nevertheless denied by the probate court. Custodian of will to deliver. The probate of a will by the probate court having jurisdiction thereof is usually considered as conclusive as to its due execution and validity. the probate court can pass upon the intrinsic validity of the will. The will having been duly probated. Without any opposition. Q Suppose X works as a secretary of his father. deliver the will to the court having jurisdiction. probate may become an idle ceremony. fraud. One day. or to the executor named in the will. By accepting the custody of the will of another. Q Does the probate court have jurisdiction to inquire into the intrinsic validity of the will? A In petitions for probate. for the purpose of determining whether a certain property should or should not be included in the inventory of estate properties. for falsification or forgery of the will probated but was finally dismissed. and dissolved the writ of preliminary injunction. but such determination is provisional. whether the testator. One accepting custody of a will for safekeeping accepts the responsibilities of such custodianship to preserve the will safely for the testator until his death and not to reveal its contents or return to its maker on demand ₱ Generally. CFI Judge ALFONSO SANTOS & ROSARIO BASA DE LEON. The allowance of a will creates a conclusive presumption as to its due execution and validity. Thus. but Gerry’s notes state that it must be in writing. Rosario Basa de Leon filed with the justice of the peace court of San Fernando. Martinez) Q Can the probate court pass upon questions of ownership with respect to properties allegedly forming part of the estate? A In a special proceeding for the probate of a will. not conclusive and is subject to the final decision in a separate action to resolve title.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . at the instance of the complainant herself. One becomes a custodian by agreement between the testator and the person to whom the will is entrusted.. As a rule. Basa again accused Mercado for the third time of the same offense. except that of fraud. but with notice to the adverse party. Ramagosa) Q Is the probate court absolutely precluded from passing upon the intrinsic validity of the will? A NO. Q What is the nature of such agreement between the testator and the custodian? A The delivery and acceptance of the custody of the will for safekeeping constitutes a BAILMENT which terminates on the death of the testator or bailor. The motion was overruled and the petitioner filed with the Court of Appeals a petition for certiorari. Ronald Chua jurisdiction against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction since it is clear that a duly probated will cannot be declared a forgery without disturbing in any way the decree allowing said will to probate. the petitioner was arrested. MERCADO vs. a complaint against the Mercado. so as to disclose possession of the will and to produce it for probate within a reasonable time after such death. the order of denial was affirmed. one of the attesting witnesses. ISSUE/S: Whether criminal action will lie against a forger of a will duly admitted to probate HELD: The decree of probate is conclusive with respect to the due execution thereof and it cannot be impugned on any of the grounds authorized by law. the probate court may pass upon the title thereto. the motion was denied. a person does not obligate himself to exercise diligence to discover the death of the testator. Dissatisfied with the result. the question of ownership is an extraneous matter which the probate court cannot resolve with finality. further. the law will not admit any proof to overthrow the legal presumption that it is genuine and not a forgery. CA) Sec. he sees his father’s will on the floor. Is x a custodian of his father’s will? A X in this case is NOT a custodian. Santos) ANTILANO G. there is no required form for the acceptance of the custody of a will. Mere possession of a will does not constitute custody of the instrument within the meaning of this title. Gabino. The same motion was filed a second time. X takes the will and keeps it on his table. (Sumilang vs. 215 (1938) FACTS: Mercado filed in the CFI of Pampanga a petition for the probate of the will of his deceased wife.The person who has custody of a will shall. Pampanga but was again at the instance of the complainant herself who alleged that the petitioner was in poor health. A custodian is a person chosen in advance and entrusted with the custody of a will. Q Who is a custodian? A In order to hold one liable as custodian of a will under a rule which requires the production of a will by the person having it in custody. or undue influence. Court of Appeals denied the petition for certiorari. vs. alleging lack of jurisdiction of the court to probate the will and to close the proceedings. menace. The petitioner interposed a demurrer on the ground that the will alleged to have been forged had already been probated but was overruled. Because filed ex parte. otherwise. and is also conclusive that the testator was of sound and disposing mind at the time when he executed the will. Almost 3 yrs later the 5 intervenors herein moved ex parte to reopen the proceedings. The case was dismissed on the ground that the will alleged to have been falsified had already been probated and there was no evidence that the petitioner had forged the signature of the testatrix appearing thereon. freely executed the will in accordance with the formalities prescribed by law. The will in question having been probated by a competent court. Q What is the duty of a custodian of a will? A It is the duty of the person who has custody of the will to deliver the same within 20 days after he knows of the death of the testator to the 27 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . the probate court admitted the will to probate. presenting the complaint this time in the justice of the peace court of Mexico. ET AL. and was not acting under duress. that the order probating the will is conclusive as to the authenticity and due execution thereof. it must be shown that he received the will into his custody with knowledge or under such circumstances that he ought to have known that he was receiving custody of a will. Jr. being of sound mind. and upon the testimony of Benigno F. the provincial fiscal moved in the CFI of Pampanga for reinvestigation of the case. .

named Chiu Tamco. Sec. and shall. It is a moral duty because it is more of a personal obligation. That the will was duly executed and that the accused and his coexecutor appeared before the notary Q Can probate proceedings be barred by Statue of Limitations or estoppel by laches? A Reason and precedent reject the applicability of the Statute of Limitations to probate proceedings because the same are established not exclusively in the interest of the heirs but primarily for the protection of the testator’s expressed wishes. 36 PHIL 917 (1917) FACTS: The testator.A person named as executor in a will shall.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Mere possession of a will does not constitute custody of the instrument within the meaning of these rules. on behalf of herself and child. THE UNITED STATES vs. Chui Guimco. could be cheated of their inheritance through the collusion of some of the heirs who might agree to partition the estate among themselves to the exclusion of others. Joaquin Cruz had for many years. was also a partner in the business though he had never been in the Philippine Islands. The law enjoins the probate of the will and policy requires it. 4. he was married in Gingoog to a Filipina woman named Maria Villafranca. Q When can the fine provided for in this section be imposed? A The act penalized in this section is a special statutory offense which must be prosecuted upon complaint or information as other criminal offenses created by law (US vs. Nothing further was done in the matter of the probate of the will and Co-Iden subsequently died. Joaquin Cruz again visited China. resided in the municipality of Gingoog. On the contrary. after his return from China. probate will proceed through secondary evidence. . ₱ Atty. a Chinese merchant. none of the heirs may sue for the partition of the estate in accordance with a will without first securing its allowance or probate by the court first because the law expressly provides that “no will shall pass either real or personal estate unless it is proved and allowed in the proper court. unless the will has reached the court in any other manner. In 1902. whether the same be in his possession or not. Sec. Q What is the duty of the executor? 28 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . leaving his brother. Section 1 provides that “[a]ny executor. and Chiu Tamco 20%. In August 1910. the right of a person to dispose of his property by will may be rendered nugatory. or such of them as may have no knowledge of the will. been made by him in compliance with this contract. This petition was signed by Co-Iden and the accused. Guimco refused. and at their request the latter drew up a petition for the probate of the will. The will itself was not produced before the notary public upon this occasion. While absent on this visit to China Joaquin Cruz died. Rule 75. He also asserted that another brother living in China. the State could not have intended to defeat the same by applying thereto the Statute of Limitations. cannot be dispensed with and substituted by any other proceeding. Q Suppose the custodian refuses or fails to deliver the will within the reglamentary period -A Under Section 2 and 3 of this Rule. or within twenty (20) days after knows that he is named executor if he obtained such knowledge after the death of the testator. or is lost or destroyed. Thus.in. signify to the court in writing his acceptance of the trust or his refusal to accept it. Rule 76. . in charge of his property and business in Gingoog as agent or attorney in fact (apoderado). Joaquin Cruz visited China and was there married to a Chinese woman.day period specified therein does not prevent it from being probated. It is not necessary to attach original will to petition for probate.” and second. entered into a contract with Guimco whereby he agreed to pay the sum of P350 per quarter by way of rental on their interest in the real estate of the decedent. present such will to the court having jurisdiction. Q To whom is the delivery of the will made? A Delivery of the will is made to the Clerk of the RTC having jurisdiction over the estate or to the executor named in the will. He wrote a letter to Guimco. Does he still have to produce the will? A The rule making it the duty of the custodian to deliver a will to the court after the death of the testator is designed to exact the discovery of wills and to discourage their concealment. began to make inquires into the affairs of the estate. within such period. worth possibly forty or fifty thousand pesos. Absent legatees and devisees. Guimco made the claim that he and his brother had been partners in the business which had been conducted originally by Joaquin Cruz. Later upon the same visit. Chiu Guimco. devisee or legatee named in a will.fact and manager of the estate of his deceased brother. CHIU GUIMCO. In order to hold one liable as custodian for failure to produce a will after the decedent’s death. Ronald Chua court having jurisdiction or to the executor named in the will. Uy Cuan. it is worthy to restate what has been previously discussed. When the Chinese wife arrived in Misamis. within twenty (20) days after he knows of the death of the testator.” In such a case. however. the fact that a will is not presented to the court after the 20. a complaint was filed. Thus. Ramon Contreras. Inasmuch as the probate of will is required by public policy. the accused. Note: Failure to attach original of will to petition not critical where will itself was adduced in evidence. Uy Cuan. Guimco) ₱ In this regard. The presentation of the will for probate is mandatory. It is not within legislative powers to impose such sanctions. and he was not informed by them as to who then had possession of the will. In a document which was then drawn up. it was agreed that Uy Cuan and her child Chiu Machay were to receive 40% of the deceased that the defendant Chiu Guimco was to receive another 40%. and by her had one child. because the probate of a will. or in any other person interested in the estate may. Q What if the custodian is also the executor named in the will. acting on behalf of Uy Cuan and her child. Executor to present will and accept or refuse trust. the custodian of a will must comply with the statute even though he is named as the executor. In 1898. which are entitled to respect as a consequence of his ownership and rights of disposition. in which Chiu Guimco and Co-Iden were named as executors. entered into an arrangement with Maria Villafranca whereby. Custodian and executor subject to fine for neglect. in consideration of the conveyance of certain property to her. a moral obligation in the nature of a _____ is imposed upon such person. Before his departure from the Philippine Islands he had executed a will before Anastacio Servillon. A violation of this duty is made punishable by Section 4. Gesmundo: Sectiton 4 is a usurpation of judicial powers. Province of Misamis. she relinquished in favor of the other persons interested in the estate of the deceased all her claims in respect to the same property. In the meantime. The court found the accused guilty. notary public. Q Is probate of a will mandatory? A YES. No payments have. as attorney. petition the court having jurisdiction to have the will allowed. charging Guimco with the failure to produce the will within the time required by law. judicial or extrajudicial.A person who neglects any of the duties required in the two last preceding sections without excuse satisfactory to the court shall be fined not exceeding two thousand pesos. In the early part of the year 1910. Even if the decedent left no debts and nobody raises any questions as to the authenticity and due execution of the will. at any time after the death of the testator. Chiu Guimco and Co-Iden appeared before Anastacio Servillo. A When a will has been duly executed and delivered to the one named as executor therein. because unless the will is probated and notice thereof be given to the whole world. which is a proceeding in rem. where he had lived as a Chinese merchant and had amassed a considerable estate. it must be at least shown that there was a baliment. urging him to produce the will of the decedent for the institution of lawful proceedings in accordance therewith. 3.

RULE 76 ALLOWANCE OR DISALLOWANCE OF WILL Sec. it is sufficient that he shows or produces prima facie evidence of his/her relationship to the testator or his rights to the latter’s estate. may. Also. should require that there be before it some petition. in the prosecution under Section 4. petition the court having jurisdiction to have the will allowed. Ana Del Val Chan. testator himself during his lifetime. to the court having jurisdiction. Del Val will not acquire any share of the estate because she is not a legal hair of the deceased. HELD: NO. Del Val. filed a petition for the probate of the will before the CFi of Manila. or is lost or destroyed. Lastly. devisee 2. EXCEPT when acting in the exercise of its jurisdiction over the estates of deceased persons. it is not permissible to superimpose upon the penalty of fine therein prescribed the additional penalty of imprisonment imposed by Section 5.800. Rule 76 enumerates the persons who can intervene in the probate of the will. and herein petitioner. devisee 2. Del Val) Teotico v. Rene Teotico. however. petition the court for the allowance of his will. nor does she have any claim to any property affected by the will. as well as his refusal to comply with the contract for the payment of rent to the wife and child in China. ISSUE/S: Whether the oppositor has the right to oppose as well as the validity of the will. claiming to be an adopted child of one of the decedent’s sisters and a natural child of one of her brothers filed and opposition alleging that the will was not executed as required by law. information or affidavit of such character as to make action by the court under this section appropriate. accordingly. whether the same be in his possession or not. In finding the defendant guilty and imposing upon him a fine of P1. who further alleged that the legacy to Dr. any person interested in the estate (creditor) 29 | It is immaterial. Person retaining will may be committed. Essentially. Such claim of interest does not entitle him to his claim. 5. . or legatee named in a will. It is a well settled rule that in order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate. The probate court allowed the opposition. The act penalized in that section (628) is a special statutory offense and is properly prosecuted upon complaint or information as other criminal offenses created by law. It should be noted. Teotico was void. and the will was executed under duress. legatee 4. is an ordinary criminal prosecution. The remedy provided in section 629 of the Code of Procedure is evidently a totally different remedy. the court before taking action under this section. legatee 4. the only restriction being that before any person may intervene in the proceedings had for the probate of a will. Q When can the court commit a person to prison for retaining a will? A A court CANNOT make a valid order committing a person to jail for failure to produce the will of a deceased person. The interest acquired in order that a person may be a party thereto must be material and direct and not merely indirect or contingent. ISSUE: Whether an accused found guilty under Section 628 may likewise be committed to prison under Section 629. . the testatrix was physically and mentally incapable to execute the will. Q Who may intervene in the probate of the will? A Section 1.A person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same. executor 3. the witnesses to the will all attest that the testatrix was physically and mentally capable during the execution of the will and that the will conformed with the requisites of the law. Who may petition for the allowance of will. de Aguirre executed a will leaving a legacy to Dr. husband of her neice and universal heir Josefina Mortera. testator himself during his lifetime. there is no proof that Dr. or any other person interested in the estate. 1. having no relation with that provided in section 628. when ordered so to do. during his lifetime.incrimination since the mere production of the will by him would be conclusive that he had possession of it as charged in the criminal complaint. Even if the will is denied probate. as far as practice is concerned. they are the same persons who can file for the petition for the probate of a will. 1. The relationship of the adopter is limited between such adopter and adopted. Under the terms of the will. administrator. (Teotico vs. Sec. that the allegation of interest in the estate merely entitles one to intervene in the probate of the will. executor 3. or in the property to be affected by it either as executor or as a claimant of the estate. by whom a will is presented for probate. Section 629 can only be applied when a court is acting in the exercise of its jurisdiction over the administration of the estates of deceased persons and where administration proceedings are not already pending. An interested party has been defined as one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor. to enforce the production of the will by the accused at such trial would constitute a violation of his right against self. It is not permissible in a prosecution under the last mentioned section to superimpose upon the penalty of fine therein prescribed the additional penalty of imprisonment prescribed in section 629. at any time after the death of the testator. Q Who may file a petition for the probate of the will? A The following may file a petition for the probate of the will: (DELTA) 1. any person interested in the estate Q Who is an interested party? A An interested party has been defined as one who would be benefited by the estate of such an heir or one who has a claim against the estate like a creditor.Any executor. 13 SCRA 406 (1965) FACTS: Decedent Maria Mortera y Balsalobre vda. either as executor or otherwise. or in the will. HELD: NO. devisee. The under section 628.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . him being the physician who took care of the testatrix during her last illness. 5. With regard to the validity of the will. Vicente Teotico. ₱ The remedy provided in Section 5 is different with that provided in Section 4. son of Rene and Josefina. The action of the accused in possessing himself of the property of his deceased brother and in refusing to take the proper steps to distribute the estate. The offense punished under Section 4 is a special procedural offense which must be prosecuted upon a complaint or information as other criminal offenses. may be committed to prison and there kept until he delivers the will. all tend to show that he was acting in bad faith. the oppositor has no right to intervene because she has no interest in the estate either as heir. he should be required to show an interest in the will or the property affected thereby. executor. The testator himself may. Ronald Chua public and procured the latter to prepare a petition for the probate of the will are facts which are not disputed. 5. For such purpose. Rene Teotico and his spouse exerted any pressure upon the testatrix in order for her to execute a will leaving them a legacy and naming the spouse as the sole heir. pursuant to this section. Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 .

the probate of a will is not subject to bar by any limitations Q Can estoppel apply to probate proceedings? A YES. The jurisdictional facts. Q When must a will be presented for probate? A The will must be presented for probate 1. A person by his conduct may estop himself and his privies from subsequently procuring the probate of a will. title and the interest of the estate pertaining to one of the heirs have already been assigned to another doesn’t estop said heir from asking for the probate of a will of the deceased testator. and residences of the heirs. at anytime after the death of the testator 2. the testamentary capacity of the testator is easily proved if he personally appears before the probate court. 5. that at the time of his death. ages. the name of the person having custody thereof (Salazar vs.resident. Crisostomo. that a person died leaving a will 2. Crisostomo. The name of the person for whom letters are prayed. ages. during the lifetime of the testator ₱ since there is no express limitation to probate a will. Estoppel may find application in probate proceeding. that he left an estate within such territorial jurisdiction (Fernando vs. 2. and devisees of the testator or decedent. (3) The probable value and character of the property of the estate. CFI) 4. the property of the estate might have been transferred to subsequent purchasers for value and without notice of the will may be taken as an estoppel to apply for probate of the will. Q What must be stated in the petition for allowance of a will? A A petition for the allowance of a will must state the following facts: 1. should not be appointed co-administrators of the Intestate Estate of said decedent either on account of their incompetency or lack of moral qualifications. . (2) The names. )4 whether the person named as executor consents to act as such. ISSUE/S: What must a petition for allowance or probate of a will show? HELD: A petition for the allowance or probate of a will must show. it must be shown that not obstacle to the assertion of the right to have the will probated existed. Can Ricky. ₱ The law is silent as to the specific manner of bringing the jurisdictional allegations before the court. as nearest of kin.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . This precaution has been adopted by some attorneys to forestall its disappearance. Q What are the jurisdictional facts necessary in order for the RTC to acquire jurisdiction to probate a will? 30 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . indicating the time and place of such death. ISSUE/S: Whether the court’s appointment of Crisostomo and Fernando as co-administrators is valid HELD: YES! No evidence is presented why the brother and sister of the deceased. or the issuance of letters testamentary or of administration with the will annexed. Hermogenes Fernando was appointed guardian of Rufino and his 4 minor children. 2. Q Why is the testator allowed to have his will probated during his lifetime? A In general. When Rufino died. )3 the fact that the will was executed according to law. so far as known to the petitioner. But practice and jurisprudence have established that they should be made in the form of an application filed with the original of the will attached thereto. Fernando vs. But a mere copy of the will to the application may be attached without prejudice to producing the original thereof at the hearing or when the court so requires. file a petition to have the will probated? A NO since the will is to be probated during the lifetime of the testator. Two: Intestate estate of Sps. and devisees of the testator or decedent. )2 the fact that the deceased left a will and attaching a copy of said will. legatees. )6 the probable value and character of the property of the estate )7 the name of the person whose appointment as executor is prayed for. who should file the petition for probate. ages. the children were left under the guardianship of Hermogenes. the name of the person having custody of it. or in the case of a non. so far as known to the petitioner: (1) The jurisdictional facts. although it is enough if there be proof sufficient to satisfy a statutory presumption of death by absence. Sec. Ronald Chua Q What is the effect of an assignment of interest in the estate upon an heir’s right to petition for probate of a will? A The mere fact that the share. legatees. and residences of the heirs. legatees and devisees of the decedent. he was a resident within the territorial jurisdiction of the court. Long delay in propounding the will for probate during which delay. Q Jong made a will naming Ricky as his voluntary heir. connection of defects in the formalities of the will is facilitated 4. CFI) It is essential to the jurisdiction of a court to entertain probate proceedings that the testator be dead. fraud may be avoided. Contents of petition. German Crisostomo filed a petition as next on kin for the opening of intestate proceedings of the estate of the deceased and the appointment of himself and Pacita Fernando as co-administrators which was granted by the court. Crisostomo) that the will has been delivered to the court and is in the possession thereof (Salazar vs. or renounces his right to become an executor. and )8 if the will has not been delivered to the court. the name of the person having custody of it. 90 SCRA 585 (1951) FACTS: This case involved 2 cases. then it should be testator himself. )5 the names. the value of the estate so that the proper court with jurisdiction (whether R/MTC) may be determined. If the will has not been delivered to the court. during Jong’s lifetie. the following: )1 the fact of the death of the testator. A The RTC acquires jurisdiction to probate a will when the following jurisdictional facts are alleged: 1. 4. But to raise estoppel on the ground of delay in propounding the will. probate of a will during the testator’s lifetime is allowed so that: 1. One: Guardianship of Rufino Crisostomo and his 4 minor children. The names. which has taken place in certain cases. opposition is minimized. and residences of the heirs. 3. (4) The name of the person for whom letters are prayed. 3.A petition for the allowance of a will must show. He then filed for the approval of an extrajudicial settlement of the estate of the deceased parents of the minors which was denied by the court ruling that the guardian of the children is not the administrator of the estate until and after the said estate has been acquired by the minors by proper proceedings. The probable value and character of the property of the estate. In this case. (5) If the will has not been delivered to the court. in the case of a resident. But no defect in the petition shall render void the allowance of the will. 2. 3.

if it is published for the dissemination of local news and general information. . No fixed number of subscribers is necessary to constitute a newspaper of general circulation. Q What is the effect of the omission of any of those enumerated in this section which a petition must show? A It is expressly provided in the same section that “no defect in the petition shall render void the allowance of the will.g. A It is the duty of the court moto proprio to appoint hearing for the will’s allowance and to cause notices thereof to be given by participation. 31 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . The court may. A 1. publication made on December 4. fear. cannot render the order void for want of jurisdiction. e. The fact that there is another paper published that has a few more subscribers and that other dailies also have a larger circulation in that province is unimportant. a court can moto proprio set the time and place for proving the will delivered to it. The duty imposed by Section 3 of Rule 76 is imperative. there are only 15 days.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Q Why must the court order be published? A Since a petition for probate of a will is a proceeding in rem. Sec. since prior to the hearing date. any more than the omission from the petition of a statement as to the proper value and character of the estate. Where the petition for probate is made after the deposit of the will. Q What is meant by publication for “3 weeks successively”? A The language used in Section 3 of Rule 76 does not mean that the notice referred to therein should be published for three full weeks before the date set for the hearing of the will. that the will is with Atty. The jurisdiction of the RTC becomes vested upon the delivery thereto of the will. Ronald Chua Q Example of a petition for allowance of a will. legatees and devisees of the testator. Q Would the probate court lose its jurisdiction over the case if the person who filed the petition for probate withdraws from said case? A NO. from the first publication to the date of the hearing. therefore. or a petition for the allowance of a will is filed in. 1992. Noncompliance wherewith would be mockery of the law and of the last will of the testator. Nevertheless. have taken steps to fix the time and place for proving the will and issue the corresponding notices. that Atty. whether he filed the petition for probate of a will. the custodian of Y’s will. the first publication of the notice need not be made 21 days before the day appointed for the hearing. Consequently. and shall cause notice of such time and place to be published three (3) weeks successively. time of hearing 2. and 2 children 7 and 8 years of age likewise a resident of Makati’ 4. and the court acquires jurisdiction over all the persons interested in the estate of a deceased person. the publication has been made for three weeks successively. Q When does jurisdiction become vested in the RTC over the probate of a will? A Jurisdiction vests in the RTC over the probate of a will in two instances: 1. 1992 and that he was a resident of Makati at the time of his death. upon the delivery of a will to the court even without such petition Q On December 20. 11. for it is well established principle that the proceeding for probate of a will is one in rem. and if it is published at regular intervals. The law does not require that publication of the notice should be made in the newspaper with the largest number of subscribers. Q When jurisdiction vests in the RTC over the probate of a will. his wife. he filed a petition for probate of said will with Branch 3. Meaning of Due Execution (1) That the will was executed strictly in accordance with the formalities required by law (2) That the testator was of sound and disposing mind when he executed the will (3) That there was no vitiation of consent through duress. what must the court do? 5. 3. e. even if no petition for its allowance was filed until later because upon the will being deposited.” The omission. But no newspaper publication shall be made where the petition for probate has been filed by the testator himself. or some other person for his benefit (5) That the signature of the testator is genuine. or threats (4) That it was not produced by undue or improper pressure or influence on the part of the beneficiary. Court to appoint time for proving will. that X died on January 1. the court having jurisdiction. who is 30 years of age and a resident of Makati. upon the filing of a petition for the proving a will 2. ask or require the party concerned to pay the corresponding docket fees. or the issuance of letters testamentary or of administration with the will annexed. delivered said will to Branch 2 of Makati RTC. i. X. Q Why is it necessary to state the name and residence of each heir or legatee in the petition for probate? A An application for probate should contain a statement of the name and residence of each heir or legatee of the testator in order that the persons entitled to notice of the proceedings and the manner of such notice may be determined. from the petition of a statement of names. On December 22. the court could moto proprio. and 18 and the hearing was set for December 19. it was not procured through fraud and that the testator intended that what he executed was his last will and testament. such court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof. Q What is meant by “newspapers of general circulation”? A A newspaper of general circulation. 1992. D be appointed as administrator. place of hearing 3.Notice thereof to be published. ages and residences of the heirs. then the publication requirement is sufficiently satisfied. 3. In other words. 2. that his estate has a proximate value of ₱20k. When a will is delivered to. at any time after the petition is filed. D. Q What should the notice of publication contain? A The notice of publication should contain the following: 1. that X is survived by Y. notice to the whole world must be given in order to acquire jurisdiction. the petition is deemed to relate back to the time when the will was delivered. Which of the said courts acquired jurisdiction first? A Branch 2. if it has a bona fide subscription list of paying subscribers. in a newspaper of general circulation in the province. The withdrawal from the case of one who filed the petition for probate does not affect the jurisdiction of the court over the proceedings over all and other persons therein. order to persons who have interest in the will to appear and show case why the petition should/ should not be granted Q How does the court acquire jurisdiction over persons interested in the probate of a will? A The court acquires jurisdiction over all persons interested in the settlement of the estate through the publication of the petition in the newspapers. Q Would failure to pay docket fees affect the jurisdiction of the probate court? A Failure to pay docket fees is not jurisdictional. previous to the time appointed.

last will and testament. The notice on individual heirs.What sufficient in absence of contest. If no person appears to contest the allowance of the will. legatees. What is indisputable to the jurisdiction of the court is the publication of the notice is a newspaper of general circulation. ₱ Be it noted that notice is required by this rule only if the residences of the persons. Q Who must be furnished notices? A Under Section 4. It is not necessary that the newspaper has the widest circulation and the most number of readers. order of notice 2. Proof at hearing. 5. What is indispensable to the jurisdiction of the court is the publication of the notice in a newspaper of general circulation. considering the fact that the said newspaper is merely a tabloid and not as widely read as other major newspaper like THE PHILIPPINE STAR? A YES. . is he entitled to be given notice? A It depends. Sec. Q How is the notice by publication provided? A Notice by publication is proved by presenting in court the affidavit of the publisher to such effect and the clippings of publication as it appeared in the newspaper. if he be not be petitioner. 32 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . jeepney and tricycle drivers. the following 1. A bona fide circulation is sufficient. the court may grant allowance thereof on the testimony of one of the subscribing witnesses only. Rule 76. and executors to be notified by mail or personally. All such testimony shall be taken under oath and reduced to writing. If the executor is not the petitioner.The court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs. A copy of the notice must in like manner be mailed to the person named as executor. In other instances. . So much so that even if the names of some legatees or heirs has been omitted from the petition for allowance of the will. The El Ponente is not a newspaper of general circulation since it is only published and read by a few. Persons to be Given Notice: (1) Designated or known heirs. such notice is not necessary and the court may acquire and exercise jurisdiction simply upon the publication of the notice in a newspaper of general circulation. notice shall be sent only to his compulsory heirs. who received such. and devisees of the testator resident in the Philippines at their places of residence. in default of the foregoing. Rule 76. Publication is no longer required as provided under the second paragraph of Section 3. other legitimate children Q What about the executor. In the case of a holographic will. it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. Paragraph 2. notice shall be sent only to his compulsory heirs. Q What must be introduced as evidence at the hearing of the petition for the allowance of a will? A At the hearing of the petition for the allowance of a will. should he be given notice thereof? A Not anymore.” Q Under the civil code. if their places of residence be known. Moreover. the petition must introduce the following evidence: A The notice to be served upon heirs. Q Is service of notice on the individual heirs a jurisdictional matter? A Service of notice on individual heirs or legatees or devisees is a matter of procedural convenience. actual copies of the newspapers where notice was published 4. the receipt as signed by the person. Abante is widely read by taxi. to any person named as co-executor not petitioning. The return card would serve as proof of service of notice by registered mail. above enumerated are known. Heirs. acknowledged natural children and natural children by legal fiction 5. legatees. devisees. 4. expert testimony may be resorted to. legatees. If the testator asks for the allowance of his own will. we would like to mark the following as exhibits: 1. registry return card/ sheriff’s return. and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing. will serve as proof of service thereof Q How would you show this to the court? A When the court asks you to establish jurisdictional facts. At the hearing compliance with the provisions of the last two preceding sections must be shown before the introduction of testimony in support of the will. legatees and devisees (2) Executor and co-executor if not the petitioner Modes of Notification: (1) If by MAIL: 20 days before hearing (2) If through PERSONAL SERVICE: 10 days before hearing Q Is service of notice to all interested parties necessary? Q What is the mode of service and how do you prove that such notice has been sent to the parties concerned? A Notice must be sent by registered mail or by personal service. the widow or widower 4. he must have notified of the petition for probate. Q Is publication in the El Ponente sufficient? A NO. Q Is publication still required to confer jurisdiction to the court if it was the testator himself who applied for the probate of his will? A NO. death certificate. Rule 76 provides that “if the testator asks for the allowance of his will. and devisees of the testator” who are residing in the Philippines. also. and if the court deem it necessary. section 4. otherwise. legatees and devisees is necessary only when they and their places of residence in the Philippines are known. legitimate parents and ascendants with respect to their legitimate children and descendants 3. and therefore were not advised. …and then present your witnesses…. the court “cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs. 5.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . while if the notice was sent through personal service. if such witness testify that the will was executed as is required by law. 6. legitimate children and descendants with respect to their legitimate parents and ascendants 2. Ronald Chua Q Can you publish the notice in ABANTE. who are considered the compulsory heirs? A Under article 887 of the New Civil Code. which provides that “no newspaper publication shall be made where the petition for probate has been filed by the testator himself. the decree allowing the will does not ipso facto become void for want of jurisdiction. legatees and devisees is merely a matter of procedural convenience to better satisfy in some instances the requirements of due process. Q If the testator himself filed the petition for probate. not a jurisdictional requisite. affidavit of publication 3. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing.” Sec. if such places of residence be known. In the absence of any such competent witness. you stand up and say “Your Honor. he need not be notified.

In the absence of any such competent witness. and the due execution of the will. at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the handwriting of the testator. and 2. If however. 8) (b) Holographic Wills . evidence that the order of the court fixing the time and place for proving the will has been published 3 weeks successively. Proof of lost or destroyed will.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . the provisions thereof must be distinctly stated and certified by the judge. evidence consisting of the testimony of the subscribing witnesses in support of the will Q What is the effect of the probate court’s failure to require proof of publication and/or service of notice? A It is reversible error for a probate court to hear the application for probate of a will without proof of publication and service of notice required in the 2 proceeding sections of this rule. if such witness testifies that the will was executed as required by law. insane or none of them resides in the Philippines – The court may admit testimony of other witnesses to prove the sanity of the testator. Those testifying from hearsay are neither competent nor credible. an expert testimony may be resorted to. evidence that such notice has been served to the person named as executor and to any person named as co. • At the hearing. that the will has been duly executed by the testator (due execution) 2. under the seal of the court. Q What facts must be proved in order that a lost or destroyed notarial will may be allowed? A The following facts must be proved: 1. However. what is required in order for the will to be admitted to probate? A If no person appears to oppose the probate of the will. and the will is proved to have been in existence at the time of death of the testator. and 3. 5) (a) Notarial Wills – Testimony of at least one of the subscribing witnesses may be allowed. the first of the subscribing witness called is unable to testify that all the solemnities required by statute were observed. that the will was in existence when the testator dies or if it was not. (An instance where a party may impeach his own witness) (b) Holographic Wills – 3 witnesses who know he handwriting of testator. . 11) (a) Notarial Wills – ALL subscribing witnesses AND the notary public before whom the will was acknowledged must be produced and examined. the other subscribing witnesses must be produced. if living within the jurisdiction of the court. if any or all the witnesses (i) testify against the execution of the will.Certificate thereupon. 6. all the subscribing witnesses must be produced and the absence of any of them must be satisfactorily shown to the court. if sufficient. that the provisions of the will are clearly established by at least 2 credible witnesses ₱ the first and third facts constitute secondary evidence in lieu of the original of the will ₱ the provision requiring the provisions of the will be “clearly and distinctively proved by at least 2 credible witnesses” demand that the witnesses be competent as well as credible. 7) (ii) If the subscribing witnesses are dead.the testimony of one witness who knows the handwriting and signature of the testator. (iii) are of doubtful credibility. In the absence thereof and if the court deem it necessary. (Sec. (2) Contested Wills (Sec. expert testimony may be resorted to. or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge. such part may be admitted to probate. evidence that notice of such hearing has been served to the known heirs. ₱ It is not necessary to prove that the contents of the last will literally. Q What evidence must be introduced at the hearing for the probate of a holographic will? A The following must be introduced at the hearing for the probate of the holographic will: 1. without his knowledge (loss or destruction under circumstances which would defeat an inference of cancellation by the testator). in a newspaper of general circulation in the province as directed by the court. 2.executor. Further. that it has been fraudulently or accidentally destroyed in the lifetime of the testator. and 4. and the certificate must be filed and recorded as other wills are filed and recorded. compliance of publication and notice must first be shown before introduction of testimony in support of the will. Evidence Required in Support of a Will (1) Uncontested Will (Sec. the testimony of one subscribing witness. the will may be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses. it may admit proof of the handwriting of the testator and of the subscribing witnesses or of any of them. his testimony can be dispensed with and the will may be allowed to probate if there is enough evidence to justify its probate ₱ In an uncontested probate proceeding. and if the court deem it necessary. Q What if the will is contested? A If the will is contested. notice of the hearing for the allowance of the will has been served to his compulsory heirs. it is sufficient to establish the due execution of the will. previous to the time appointed. execution o the will. will warrant the allowance of the will. Q When no person appears to oppose the probate of the will. When a lost will is proved. legatees and devisees of the testator resident in the Philippines at least 20 days before the hearing 3. but a substantial proof of such contents is all that is required and if only a part of the lost will can be proved. testimony of an expert witness may be resorted to. Ronald Chua 1. No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established. HOWEVER. the underlying reason for the 2-witness rule laid down by the law is to guard against foisting upon the court by imposters of an alleged will which was never executed. In the absence thereof and if the court deem it necessary. (ii) do not remember attesting thereto. provided. and as evidence of the 33 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Sec. where an attesting witness appears to be hostile an adequate efforts have been exerted to have him testify at the trial. it may be admitted to probate on the testimony of one of the attesting witnesses. (i) If all subscribing witnesses reside outside the province – deposition is allowed (sec. if their places of residence be known.

rights. children by the first marriage of the deceased. 63 PHIL 793 (1936) FACTS: Jose B. and legally speaking such will could not then have been probated or recorded. Calixto Delgado testified that he had acted as procurador for Gregoria in an action brought against her by one Jose involving the hacienda of Pangpang. and actions. and that as such there came into his possession a copy of the will of Rosario which was introduced in evidence in that action. whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court. and the court below should not have. as the allowance of such evidence is a violation of the Best Evidence Rule (Araujo et al. be ordered to present it in court. Go Toh. the first time to Manuela T. children by first marriage of the deceased. Angel. as it appears from the record. The principal witness. LIM BILLLIAN vs. However. She instead offered secondary parol evidence as to its contents. eldest son of the deceased by his first marriage. with Messrs. after getting its contents and throwing away the envelope. These tokens sufficiently point to the loss of the will of the deceased. He married twice. Apolonio Suntay. A will signed by two witnesses only could not under any circumstances be valid under the law in force at the time referred to by the witness. Rosario died leaving no descendants or ascendants. The will in the envelope was executed in the Philippines. Hence this appeal. Go Toh and Manuel Lopez. filed the latter's intestate in the Court of First Instance of Manila. Alberto Barretto. Maria asks in this case that the brothers Apolonio. such circumstance justify the presentation of secondary evidence of its contents and of whether it was executed with all the essential and necessary legal formalities (Lim Billian vs. Suntay died in the City of Amoy. Alberto Barretto and Manuel Lopez as attesting witnesses. stated that they did not have the said will and denied having snatched it from Go Toh. who took possession of the same after the death of her son Jose. and that this will was placed in an envelope which was signed by the deceased and by the instrumental witnesses. CFI allowed the evidence over the objection of the collateral relatives of Rosario and ruled in favor of Gregoria. 6 PHIL 459 (1906) FACTS: Rosario Araujo inherited from her mother. or even a mimeographed or carbon copy or by other similar means. there had been pending since 1889 an action to declare this very will null and void. SUNTAY. thereby lawfully acquiring all the property that had formerly belonged to her daughter-in-law. and from what has taken place we deduce that it was not petitioner's intention A When the evidence presented is insufficient to establish in a satisfactory manner the loss of the alleged will. they fled. before the deceased died in China he left with her a sealed envelope (Exhibit A) containing his will and. Suntay. and shall be responsible therefor. In court there was presented and attached to the case an open and empty envelope signed by Jose B. she. therefore. More importantly. he likewise testified that he never saw the original of that will because the same was retained by the notary. China. allowed the secondary evidence introduced by her as to the contents of the will. they snatched and opened it and. The property. Go Toh. succeeded to all of his property. While Go Toh was showing this envelope to Apolonio Suntay and Angel Suntay. The problem. Rule 76. Go Toh and Manuel Lopez as attesting witnesses. The trial of this case was limited to the proof of loss of the will. however. Asuncion. and the second time to Maria Natividad Lim Billian with whom he had a son. Manuel and Jose Suntay. He likewise failed to affirm whether the copy in question was a simple or certified copy. Upon these allegations. Such relatives asked that the property inherited by Rosario from her mother be delivered to them. arrived in the Philippines with the will in the envelope and its copy Exhibit B. which provided that: “Notaries shall keep the protocols and books in the same building where they live. that a day be set for the reception of evidence on the will. The lack of objection to the probate of a lost will does not relieve the proponent thereof or the party interested in its probate from establishing its due execution and proving clearly and distinctly the provisions thereof by at least two credible witnesses. Maria Natividad Lim Billian also instituted the present proceedings for the probate of a will allegedly left by the deceased. vs. therefore. CELIS. however. is that the will could not be found alleging that insurgents had burned the Court of Pototan where the will was kept. particularly in view of the fact that. Q When may secondary evidence be admitted in lieu of the original will? As to the loss of the will. Jose. ISSUE/S: Whether secondary parol evidence is sufficient to prove Rosario’s will? HELD: NO. he further testified that the will was signed by two witnesses only. According to Maria. 34 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . the testimony that all the notarial records were likewise burned as they were kept in the same courthouse is inconclusive as the same is plainly and manifested contrary to the royal decree concerning the organization of notaries. The evidence is sufficient to establish the loss of the document contained in the envelope. He died a year after the death of Rosario in l889.” Their testimony is absolutely insufficient to establish in a satisfactory manner the loss of the alleged will of Rosario Darwin. according to Barretto he prepared a will of the deceased to which he later became a witness together with Go Toh and Manuel Lopez. In answer to the court's order to present the alleged will. It is thus undeniable that this envelope Exhibit A is the same one that contained the will executed by the deceased — drafted by Barretto and with the latter. Moreover. as attorney-in-fact of the petitioner. is held by the Gregoria. The defendant claims that Rosario died leaving a will in which she bequeathed all of her property to her husband. Cruz with whom he had several children now residing in the Philippines. She subsequently married Jose Celis. there is nothing to show that at the time these records were burned by the insurgents there existed in the courthouse of Pototan the copy of the will referred to. In the same court. also another document (Exhibit B of the petitioner) said to be a true copy of the original contained in the envelope. The loss of the alleged original will has not been sufficiently established. and that the latter having died without a will. secondary evidence to prove the contents of the will can thereof not be allowed. in their custody. who allegedly have the document contained in the envelope which is the will of the deceased. A lost will cannot be admitted for probate on an agreement or stipulation. HELD: YES. a circumstance justifying the presentation of secondary evidence of its contents and of whether it was executed with all the essential and necessary legal formalities. Manuel and Jose Suntay. if any. Oppositors' answer admits that. as provided for in Section 6. but only collateral relatives. Celis) Q When evidence sufficiently point to the loss of the will of the deceased. Angel. evidence of it must be given as required by statute.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Suntay) ARAUJO vs. Ronald Chua Q May the execution and contents of a lost or destroyed holographic will be proved by the testimony of a single witness? A The execution and contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. and that the petitioner be appointed executrix pursuant to the designation made by the deceased in the will. the brothers Apolonio. Gregoria’s’ son. ISSUE/S: Whether Exhibit B accompanying the petition is an authentic copy and whether it has been executed with all the essential and necessary formalities required by law for its probate. although it may perhaps be proved by a Photostat copy. the hacienda known as Pangpang.

Q Could a lost holographic will be probated? A NO. and to the handwriting of the testator and others. (Gago vs. only a lost notarial will can be probated. Mamuyac) Q Who has the burden of proof? A In a proceeding to probate a will. Proof when witnesses dead or insane or do not reside in the Philippines. 787. 791. (n) Art. Sebastian’s that a lost holographic will cannot be admitted nor proved in probate. 9. 8. Q How will the deposition be taken? A A copy of the will shall be sent along with questions drafted by both parties and the witnesses shall be examined regarding the will as if he had testified in court. Rule 76 provides: “When a lost will is proved. The signature and the handwriting of the testator and the witnesses must be proved. or otherwise mentally incapable to make a will.” Further. in case of doubt. (Gago vs. If a testamentary disposition admits of different interpretations. the provisions thereof must be definitely stated and certified by the judge under the seal of the court. as we have heretofore indicated. on the part of the beneficiary. as would be pertinent and competent if the original will were present. or of any of them. or threats. the burden is on the contestant to show that it has been revoked. and the due execution of the will. not a lost holographic will.subscribing witnesses cannot be authorized. The bottom line is that if the testimony of any of the surviving subscribing witnesses can no longer be taken even through the taking of depositions. or that none of them resides in the Philippines. proof of the will by non.If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane. After all. Proof when witnesses do not reside in province. the presumption is in the absence of other competent evidence. a will may generally be admitted to probate upon other legal and satisfactory proof. how may the will be proved? A A photographic copy of the will. Q At what distance from the jurisdiction of the probate court must the witness be. as would be pertinent and competent if the original will were present. 788.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . may be presented to the witnesses on his examination. that the same was cancelled or destroyed. the other points involved herein. Q What is the effect of a lost will said to be seen last in the possession of the testator? A Section 7 applies only to notarial wills. on motion. The testimony of Alberto Barretto bears importantly in this connection. but that the deposition of one or more of them can be taken elsewhere. Q What if all the subscribing witnesses are dead. at the time of its execution.” Sec. the burden of proof is upon the proponent clearly to establish not only its execution but also its existence. the court may. (4) If it was procured by undue and improper pressure and influence. Grounds for disallowing will. Q What may the court do where it appears that none of the witnesses to the will resides in the province where the hearing is to be held? A Where it appears that none of the witnesses to the will resides in the province where the hearing is to be held. Ronald Chua to raise. it may admit proof of the handwriting of the testator and of the subscribing witnesses. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. when last seen. or the influence of fear. Sec. Gesmundo’s opinion is on accord with Atty.If it appears at the time fixed for the hearing that none of the subscribing witnesses resides in the province. and the handwriting of the testator and others.The will shall be disallowed in any of the following cases: (1) If not executed and attested as required by law. and as evidence of the execution of the will. Atty. Mamuyac) Q What is the court supposed to do after the due execution and contents of a lost will had been proved? A Section 6. . direct it to be taken. and may authorize a photographic copy of the will to be made and to be presented to the witness on his examination. upon the evidence adduced by her. The same presumption arises where it is shown that the testator has already access to the will and it cannot be found after his death. There would be a stronger case if the due execution can be sufficiently established by the remaining witnesses and substantiated by the notary public who prepared and notarized the will. . namely. the taking of the deposition of one or more of them may be directed by the court at the time fixed for the hearing. (3) If it was executed under duress. Q In such a case. the deponents may be asked the same questions with respect to the will. that interpretation by which the disposition is to be operative shall be preferred. 7. or of some other person for his benefit. (2) If the testator was insane. the court may admit the testimony of other witnesses to prove the sanity of the testator. The words of a will are to receive an interpretation which will give to every expression Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Q What is the nature of the will in Section 7? 35 | RELATED CIVIL CODE PROVISIONS: Art. (5) If the signature of the testator was procured by fraud or trick. Q What if the proponent cannot present all the subscribing witnesses? A The proponent cannot establish prima facie case as long as proof of the authenticity of the signature of the subscribing witness can be duly proved. (n) Art. who may be asked the same questions with respect to it. . The SC merely used the word “may. Having proved its execution by the proponents. whether Exhibit B is a true copy of the will and whether the latter was executed with all the formalities required by law for its probate. and he did not intend that the instrument should be his will at the time of fixing his signature thereto. upon authority of the court. for the court to take his deposition? A The witness must be at least 50 kilometers away from the territorial jurisdiction of the court for it to order the taking of his deposition. unless the law provides that depositions must be taken. Oral and/or secondary evidence cannot be introduced to prove the existence and contents of a lost holographic will because the authenticity of the signatures cannot be proved by oral testimony ₱ Note that the SC in the Rodelas case did not rule definitely on this matter. and the certificate must be filed and recorded as other wills are filed and recorded. incompetent or unavailable? A It will not prevent the establishment of the due execution and attestation of the will as long as its essentials are proved. A Where a will which cannot be found is shown to have been in the possession of the testator. Sec. ₱ When it comes to lost wills.

When a number of dispositions appearing in a holographic will are signed without being dated. and by his express direction. (n) Art. (n) Art. forgery. Every will must be in writing and executed in a language or dialect known to the testator. 816. A married woman may make a will without the consent of her husband. rather than one which will render any of the expressions inoperative. it shall be interpreted to them. (n) Art. if able to do so. In the probate of a holographic will. by the notary public before whom the will is acknowledged. once. erasure or alteration in a holographic will. (n) Art. 804. 808. and all the pages shall be numbered correlatively in letters placed on the upper part of each page. In the absence of any competent witness referred to in the preceding paragraph. (n) Art. dated. In holographic wills. When a Filipino is in a foreign country. the testator must authenticate the same by his full signature. he shall designate two persons to read it and communicate to him. he must personally read the will. and if the court deem it necessary. (n) Art. 798. All persons who are not expressly prohibited by law may make a will. (n) Art. (n) Art. In case of any insertion. or a deaf-mute. shall also sign. defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. in the presence of the instrumental witnesses. 810. at least three of such witnesses shall be required. cancellation. 815. (n) Art. or according to the formalities observed in his country. and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides. the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. and signed by the hand of the testator himself. on the left margin. If the attestation clause is in a language not known to the witnesses. The testator or the person requested by him to write his name and the instrumental witnesses of the will. and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence. 809. 812. In the absence of bad faith. 796. (662) Art. It is subject to no other form. 811. 807. 806. other than a holographic will.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . whatever be the time of prior dispositions. 805. (n) 36 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . such date validates the dispositions preceding it. under his express direction. or file another with the Office of the Clerk of Court. and the fact that the testator signed the will and every page thereof. and need not be witnessed. (n) Art. or caused some other person to write his name. that is to be preferred which will prevent intestacy. A person may execute a holographic will which must be entirely written. (n) Art. 797. Such will may be probated in the Philippines. and may be made in or out of the Philippines. by one of the subscribing witnesses. or undue and improper pressure and influence. 795. or in conformity with those which this Code prescribes. (n) Art. (n) Art. and of two modes of interpreting a will. The notary public shall not be required to retain a copy of the will. Persons of either sex under eighteen years of age cannot make a will. 802. and again. 813. (619a) Art. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. except the last. he is authorized to make a will in any of the forms established by the law of the country in which he may be. (n) Art. otherwise. as aforesaid. (n) Art. If the testator be deaf. In order to make a will it is essential that the testator be of sound mind at the time of its execution. the will shall be read to him twice. it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. expert testimony may be resorted to. the contents thereof. Every will must be acknowledged before a notary public by the testator and the witnesses. The attestation shall state the number of pages used upon which the will is written. (678. Ronald Chua some effect. and without the authority of the court. in some practicable manner. or fraud. If the testator is blind. 814. and the last disposition has a signature and a date. 688a) Art. If the will is contested. Every will. each and every page thereof.

be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. secondary evidence) Q Is the proponent bound to present all the witnesses? A YES especially when the will is contested. Q What if a guardian is named for the testator alleged to be incapacitated? Contestant Must: (1) State in writing his grounds for opposing the allowance of the will. (Torres et al. and the possibility of bad faith and fraud is obviated. It is true that the rule prevailing in this jurisdiction is that when a will is contested. Subscribing witnesses produced or accounted for where will contested. Lopez) A Q What is undue influence? A Undue influence is that which compels the testator to do that which is against his will. he still possesses that degree of reason and of life and that strength of mind to form fixed intention. at the time he executed his will. However.Anyone appearing to contest the will must state in writing his grounds for opposing its allowance. It is their testimony. either for their reciprocal benefit or for the benefit of a third person. as he had the disposing memory? (Torres et al. it is not necessary that the mind shall be wholly broken. or are otherwise of doubtful credibility. or insanity of any of them must be satisfactory shown to the court. Two or more persons cannot make a will jointly. which is needed. in the absence of any competent witness. or do not remember having attested to it. said will should be admitted to probate. shall have the same effect as if executed according to the laws of the Philippines. the appointment of such guardian is not conclusive with respect to the mental condition of a ward.(733a) Q What is testamentary capacity? A All subscribing witnesses. absence. and the notary in the case of wills executed under the Civil Code of the Philippines. Sec. and serve a copy thereof on the petitioner and other parties interested in the estate. should testify. and if the court deem it necessary. • A Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged at the time to recollect the property to be disposed of and the persons who would naturally be supposed to have claims upon the testator and to comprehend the manner in which the instrument will distribute his property among the objects of his bounty. Lopez) Q If someone wants to oppose probate. when an attesting witness to a will resides outside the province where the will is offered for probate and 30 miles (50km) or more from the place where the probate proceedings are held. Lopez) ₱ The evidence of those present at the execution of the will and of the attending physician may also be relied upon and generally between the testimony of witnesses who were present at the execution of the will and who had opportunity to personally observe the mental condition of the testator and the testimony of expert witnesses whose opinion is merely speculative. must be produced and examined. (n) Art. If anyone of them should be outside of the jurisdiction of the court. the attesting witnesses must be called to prove the will or a showing must be made that they cannot be had. expert testimony may be resorted to. A will made in the Philippines by a citizen or subject of another country. their deposition must be taken. Contestant to file grounds of contest. (669) Art. or in the same instrument. unimpaired or unshattered by disease or otherwise or that the testator be in possession of all his reasoning faculties. Hence. all the subscribing witnesses. weakness of memory. from fear the desire of peace or from other feeling which he is unable to resist.If the will is contested. nevertheless. Lopez) Separate Wills which contain essentially the same provision and pertain to properties which in all probability are conjugal in nature. vs. of sound and disposing memory(Torres et al. then his deposition should be taken. and not their actual personal presence in the courtroom. 818. but that does not necessarily mean that they must be brought bodily before the court. and (2) Serve a copy thereof to petitioner and other interested parties. a presumption of his mental infirmity is created.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . nor eccentricities are sufficient singly or jointly to show lack of testamentary capacity or unsoundness of mind if at the time of the execution of the will. If a holographic will is contested. which would state his objections and he should also send a copy to the proponent. . vs. feebleness of mind. Wills. and the proponent himself does not oppose. Q Is failure of memory or old age or eccentricities sufficient to indicate lack of testamentary capacity or unsoundness of mind? A Neither old age. 819. practical considerations dictate their joint probate. prohibited by the preceding article. other witnesses. The presumption of mental infirmity may still be overcome by evidence showing that the testator. not being founded on facts which they have observed in person. the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator. which is executed in accordance with the law of the country of which he is a citizen or subject. what must he do? A He should file an opposition in court. if present in the Philippines and not insane. To constitute a sound mind and disposing memory. was in fact. and which might be proved and allowed by the law of his own country. Substantial Compliance Rule – If the will has been executed in substantial compliance with the formalities of the law. 11. If any or all of them testify against the due execution of the will. the former would be preferred. his testimony may be taken in the form of a deposition and a photographic copy of the will may be presented to the witnesses on their examination and that they may be asked the same Q What happens if the will is contested? 37 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . physical infirmities. (Torres et al. . Q What if one of the witnesses opposes probate? A The court may still allow probate if there are other evidence (i. if present in the Philippines. If the proponent presents only one witness. 10. and the death. Q In case the will is contested. must all the attesting witnesses be produced and examined before the court? A When a guardian is named for the testator alleged to be incapacitated. then it would clearly weaken the cause of the proponent. executed by Filipinos in a foreign country shall not be valid in the Philippines. The question is not so much what was the degree of memory possessed by the testator. vs. even though authorized by the laws of the country where they may have been executed. the will may. while the opposition presents the other two. Ronald Chua Art. vs. 817. If all or some of such witnesses are present in the Philippines but outside the province where the will has been filed.e. Sec.

shall be sufficient evidence of the genuineness and due execution thereof. signed by the judge. Sec. SUNTAY. shall be recorded in the register of deeds of the province in which the lands lie. that the will was duly executed. Sec. Intestate proceeding was held in the CFI of Bulacan and Federico (son from the 1 st marriage) was named administrator. and not acting under duress. according to the laws of such country. separate proceedings must be had to cover the same. to which shall be attached a copy of the will. are filed with a petition for allowance in the Philippines. Proof where testator petitions for allowance of holographic will.To be recorded in the Office of Register of Deeds. filed. and cause notice thereof to be given as in case of an original will presented for allowance. If the court is satisfied. Silvino filed a petition in the intestate proceedings for the probate of the will executed in China in January 1931. upon proof taken and filed. When will allowed. alive and within the control of the process of the court are produced to testify. Afterwards. 3. 2. the laws of a foreign country on procedure and allowance of wills (Suntay v. 12. that the will has been admitted to probate in such country (Fluemer v. and a certificate of its allowance. 13. 2. 500 (1954) FACTS: Jose Suntay (a Filipino citizen and resident of RP) died in China. Attested copies of the will devising real estate and of certificate of allowance thereof. 1. such court shall fix a time and place for the hearing. the surviving widow filed a petition in the court for the probate of a last will and testament claimed to have been executed and assigned in the RP in November 1929. Nevertheless. Hix) 4. . Delfinado) When the petition for probate of a will is contested. the fact that he affirms that the holographic will and the signature are in his own handwriting. the court shall so allow it. shall be filed and recorded by the clerk. Q What happens if after due execution. In the meantime. if alive and within the reach of the process of the court. Q What if the will was not lost? A The courts will issue a certificate in accordance with the provisions of Section 13. If the decedent owns properties in different countries. What is the effect of a will of an alien who is abroad? The will made in the Philippines by a citizen of another country which is executed in accordance with the law of the country of which he is a citizen and which might be proved and allowed by the law of his own country. • In the absence of proof of the foreign law. loss has been established.Wills proved and allowed in a foreign country. Ronald Chua questions with respect to it as if it were the original will. and effect thereof. may be allowed. the fact that the foreign tribunal is a probate court 5. without the satisfactory explanation of the failure to produce the other two. What will the courts do? A The court will certify that the provisions of the lost will had been truly proved. . Suntay) • The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them. both duly authenticated.If it appears at the hearing that the will should be allowed in the Philippines. Sec. (Avera vs. Note: When the authenticity of the will is not being questioned. He left 9 children in the first marriage and a child named Silvino in the second marriage with Maria Natividad who survived him. The court will then fix a time and place for hearing and cause notice thereof to be given. the burden of disproving the genuineness and due execution thereof shall be on the contestant. that the testator has his domicile in the foreign country and not in the Philippines 3. After liberation. Such will may be probated in the Philippines (Article 815) 38 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . and attested by the seal of the court shall be attached to the will and the will and certificate filed and recorded by the clerk. and attested by the seal of the court. Will proved outside Philippines may be allowed here. 95 PHIL. leaving real and personal properties in the Philippines and a house in China. The testator may. Garcia) • It is a requirement that a will that was probated in a foreign country be re-probated in the Philippines. Salutillo) No will can be proved unless all subscribing witnesses. he is authorized to make a will in any of the forms established by the law of the country in which he may be. (Aldanese vs. If the holographic will is contested. menace. and recorded by the proper Court of First Instance in the Philippines.Where the testator himself petitions for the probate of his holographic will and no contest in filed. Q A What are the requisites of the allowance of a will allowed in a foreign state? At the hearing for the probate of a will allowed in a foreign state. This petition was denied because of the loss of the RP will and the insufficiency of the evidence to establish the loss. . the due execution of the will in accordance with the foreign laws. by the executor or other person interested. . and the execution of the will cannot be considered sufficiently proved by the testimony of only one. a certificate of its allowance.When a copy of such will and of the order or decree of the allowance thereof. . the proponent should introduce all three of the attesting witnesses. Sec. Jose also executed a will in China in January 1931. there is no necessity of presenting the three witnesses required under Article 811 of the Civil Code. in his turn. signed by the judge. and undue influence. (Cabang vs. An appeal was taken and the SC held the evidence before the probate court sufficient to prove the loss of the will and remanded the case to the CFI of Bulacan for further proceedings. RULE 77 Allowance of a Will Proved Outside of the Philippines and Administration of Estate Thereunder Sec.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . it is presumed that it is the same as that in the Philippines. SUNTAY v. Q A What should be Filed Petition for allowance accompanied with: (1) Authenticated copy if the will (2) Authenticated decree of the allowance thereof. and that the testator at the time of its execution was of sound and disposing mind. Notice of hearing for allowance. the Pacific War supervened. or fraud. an objection to the probate of the will on such ground cannot be made for the first time on appeal. the applicant must introduce evidence to establish: 1. shall have the same effect as if executed according to the laws of the Philippines (Article 817) Q What is the effect of a will of a Filipino executed in a foreign country? A When a Filipino is in a foreign country. present such additional proof as may be necessary to rebut the evidence for the contestant. and the will shall have the same effect as if originally proved and allowed in such court. Certificate of allowance attached to proved will. in the court having jurisdiction.

Mercedes sought to have the will probated in the CFI of Manila. or both to all interested parties must be made 2. shall extend to all the estate of the testator in the Philippines. What is the presumption as far as foreign laws are concerned? With respect to the probate of a foreign will on the bases of its alleged probate in the absence of proof as to the probate law and procedure of the foreign country. foreign laws on a particular subject are presumed to be the same as those of the Philippines (Miciano v. paying $ 17. Jr.. administration shall be had in both countries. And as Butler believed that Mercedes was not of sound judgment. The original administrator of the estate had invested in an annuity in Canada. Sec. That which is granted in the jurisdiction of the decedent’s domicile is termed principal administration. HELD: NO. Who are incompetent to serve as executors or administrators.No person is competent to serve as executor or administrator who: (a) Is a minor.091. the proceedings cannot be deemed to be for the probate of a will. and the residue. and such letters testamentary or of administration. Brimo) Effects of the Allowance of a Will Under Rule 77: (1) The will shall be treated as if originally proved and allowed in Philippine Courts (2) Letters Testamentary or administration with a will annexed shall extend to all estates in the Philippines. personal notice or by publication. Caloocan. there is the presumption that it is the same as that of the Philippines at least to the extent of requiring notice to parties interested. Ronald Chua ISSUE: Whether the China Will may be probated. after the payment of just debts and expenses of administration. Administration only extends to the assets of the decedent found within the state or country where it is granted so that Ghezzi has no power over the assets of Butler located outside the country. shall be disposed of as is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country. Rizal. Canada. The China will may be probated if the following requisites are established: 1. how administered. Ghezzi filed a motion praying for the citation of the manager of the MLA branch of Manufacturers to appear and render a full accounting of certain funds which was allegedly in its possession and claimed it belonged to the estate. the capital sum was to be paid back to James Ross. Consequently. and Edward Selph were named executers in said will. or letters of administration with the will annexed. Hence. The laws of a foreign country on procedure and allowance of wills. The estate was settled and the proceedings closed.When a will is thus allowed.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . 4. Suntay) In the absence of evidence to the contrary. Canada is the situs of the money. so that an administrator appointed in one state or country has no power over property in another state or country (Leon and Ghezzi v. 90 PHIL 459 (1951) FACTS: Basil Gordon Butler. but money and other securities were to be held in trust for her benefit by said executors. It is a proceeding in rem and for the validity of such proceedings. the residue of the estate shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country. 1. shall be disposed of according to such will. Manufacturers Life Insurance Corp. . discretion was left to the executors as to the decision on what would be more advantageous to Mercedes. ISSUE/S: Whether the administratrix is entitled to an accounting of the annuity HELD: NO. In the absence of proof that the municipal district court of Amoy. personal effects were to be delivered to her. as it was not done in accordance with the basic and fundamental concepts and principles followed in the probate and allowance of wills. and (c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness. With the probable intent of getting hold of the entire sum of the annuity. Who Can Administer the Estate: (a) Executor Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . or want of understanding or integrity. bought an annuity from the Manufacturers Life at its head office in Toronto. In the will.03 as combined premiums. . Mercedes began receiving her monthly allowance. the court appointed trustee. James Ross.. The fact that the foreign tribunal is a probate court. under a contract executed in that country. (Suntay v. She also secured the appointment of Ghezzi as administratrix with a will annexed. James Ross. MANUFACTURERS LIFE INSURANCE COMPANY. The contract stipulated that the death of Mercedes. Note: Venue for the petition for re-probate is the same as that provided for in Rule 73. China is a probate court and on the Chinese law of procedure in probate matters. (b) Is not a resident of the Philippines. RULE 78 Letters of Testamentary and of Administration When and To Whom Issued A Q What law governs testamentary dispositions? Article 10 of the CC provides that the national law of the testator is the one to govern his testamentary dispositions. if any. (3) After payment of just debts and expenses of administration. Estate. the residuary clause bequeathed all the remaining properties to Mercedes De Leon of Maypajo. it may be presumed that the proceedings in the manner of probate or allowing a will in the Chinese courts are the same as those provided in our laws. Brimo) A 39 | What is the extent of the power of the administration of the estate granted by a court? The general rule universally recognized is that administration extends only to the assets of a decedent within the state or country Sec. so far as such will may operate upon it. Such estate. the court shall grant letters testamentary. filed and recorded by a competent court of this country. the will referred to therein cannot be allowed. Q • When a person dies intestate owning property in the country of his domicile as well as in a foreign country. The CFI judge denied said motion contending that the funds came into the possession of the company in due course and therefore sees no justifiable reason why an accounting has to be made. (Miciano v.) LEON & GHEZZI v. or by reason of conviction of an offense involving moral turpitude. Sr. improvidence. James Madison Ross. Where it appears that the proceedings in the court of a foreign country were held for the purpose of taking the testimony of 2 attesting witnesses to the will and the order for the probate court did not purport to allow the will. Q A where it was granted. while any other administration is termed ancillary administration. a former resident of the Philippines died in New York leaving a will duly probated in the Surrogate’s Court of New York County.

He is required to exercise reasonable diligence and act in entire good faith in the performance of that trust. wards of the estate. the fact exists that Maria Munoz Gomez was the actual representative of the said minors in the administration of their interests in the estate of Antonio from March 18. she is properly called an executrix. should not appoint them as the court will find much difficulty in complying with its duty since non-residents are not personally subject to their jurisdiction. Rule 78 would yield the inference that a person who is: 1. Q A Q A What is the nature of the office of an executor or administrator? The rule generally acquiesced is that executors as well as administrators are trustees. 1902 as guardian for the minors Maria Manuela and Maria del Carmen Sanchez Munoz. a minor is incapacitated to enter into contracts. the court deems him fit (e. in the opinion of the court. If the person named is a woman. What is an administrator? An administrator is a person appointed by the court of probate to administer and settle intestate estates and such testate estates where no executor is named in the will. however. While some indications show that Teran continued to act as administrator of the estate. inasmuch as he represents their interest. 13 PHIL 212 (1090) FACTS: Required unless exempted by law. charged with the responsibilities of protecting the estates of deceased persons. Q A Why is a non-resident of the Philippines disqualified or incompetent to serve as executor or administrator? While there is nothing in the law which requires the courts to appoint residents only as administrators or guardians. On October 6. TERAN. A reading of Section 1. a resident of the Philippines. when there is a will but no competent executor was designated by the testator (or otherwise failed to qualify) or the person designated although qualified is unwilling to serve then the person appointed by the court is properly called “administrator with a will annexed. of age.g. Q A Who are competent to act as executors or administrators? A person may be appointed an executor or administrator who is capable of making the business of a trust company in the Philippines may be appointed as an executor or administrator of an estate in the same manner as a individual. must be held responsible for the property belonging to the minors during the period while she was their actual guardian. or fail to give bond. and the heirs and legatees.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Leopoldo Teran was appointed as administrator of the estate of Antonio Sanchez Munoz on September 17. those who. always. notwithstanding this. Compensation may be provided for by the testator in the will otherwise Sec. If the person appointed by the court is a woman. ISSUE/S: Whether administrators or guardians must be residents of the Philippines to be qualified for appointment as such? 40 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . What is the reason for the appointment of an executor or administrator? The appointment of an administrator is a means provided by the rules to protect not only the estate of the deceased but also the rights of the creditors in order that they may be able to collect their creditors in order that they may be able to collect their credits and those of the heirs and legatees in order that they may receive the portions of the inheritance or legacies pertaining to them after all the debts and expenses have been paid.residents of the Philippines. the CFI of Albay removed Maria Munoz Gomez as such guardian for the reason that she was not a resident of the Philippine Islands at the time of her appointment and appointed as guardian of said minors Felix Samson. 1906. and 3. (c) want of understanding. 1906 and therefore as such guardian and the administratrix of the estate of said minors. 7. the assistance of a guardian or legal representatives. are unfit to execute the duties of the trust by reason of: (a) drunkenness. the courts. may be an administrator or executor Who are incompetent to act as executors or administrators? Under Section 1 of Rule 78. then she is properly called an administratrix Strictly speaking.” An administrator is the person appointed in case there is no will. etc. Administrator Appointed by the court in case the testator did not appoint an executor or if the executor refused appointment (administrator with a will annexed) or if the will was disallowed or if a person did not make a will (intestate succession) No such duty. (d) want of integrity. An administrator occupies a position of the highest trust and confidence. which appeal was subsequently withdrawn therefore making the order final. From the order annulling the appointment of Maria Munoz her lawyers appealed to the SC. Rule 85. Hence. the judicial administrator is the legal representative not only of the testate or intestate estate but also of the creditor. 2. Rule 85 will be followed. the persons who are disqualified or incompetent to serve as executors or administrators are the following: 1. to exercise any valid act. Compensation is governed by Sec. He needs. (e) conviction of an offense involving moral turpitude 4. Maria Munoz Gomez was thereafter appointed by the CFI of Albay on March 18. 3. not a drunkard). 1901. 2. • Any COMPETENT person may serve as executor or administrator. 7. The executor of an executor cannot administer the estate of the first testator (Beda) Why is a minor disqualified or incompetent to serve as executor or administrator? A minor is disqualified or incompetent to serve as executor or administrator because as a general rule. non. Q A Executor Nominated by the testator and appointed by court Q A Must present will to the court within 20 days after he knows of the death of testator or after he knew that he was appointed as executor (if he obtained such knowledge after death of testator). and that they may be held to responsibilities and duties of trustees. 1902 until October 6. Teran) GUERRERO v. that funds of the estate in their hands are trust funds. or the executor/s is/are incompetent. (b) improvidence. refuse the trust. unless the will has reached the court in any manner Testator may provide that he may serve without a bond (BUT court may direct him to give a bond conditioned only to pay debts). (Guerrero vs. minors. Ronald Chua (b) Administrator (c) Administrator with a will annexed Q A Q A What is an executor? An executor is a person nominated by a testator in his will to carry out his direction and request thereof and to dispose of the property according to his testamentary provisions after his death.

conviction. unless it appears affirmatively that the court below is in error. it cannot be appointed guardian over the person of the ward. notwithstanding the fact that there are no statutory requirements upon this question. Can the court add more disqualifications? YES since the court has the discretion in determining whether a person is fit to be an executor or administrator. to discharge the duties of an executor or administrator. 711 (1923) Q A FACTS: When Geronimo Uy Coque died. undoubtedly. Q A man and woman or conduct contrary to justice. Q A Q A Q A Why is improvidence a ground for disqualification as executor or administrator? An executor or administrator is entrusted with the management of an estate and an improvident lacks good judgment and foresight. depends solely on the discretion of the court. maintained that the court erred in not appointing her administrator instead of Jose Garcia. ISSUE/S: Whether the court erred in appointing Garcia. Ronald Chua HELD: NO. it can still appoint another person should the spouse be considered unsuitable. etc. Are there other grounds for disqualification or incompetency? YES. What is meant by “want of integrity”? Want of integrity generally connotes a person’s lack of credibility as to affect his honesty. in case the administration should be committed to the improvident person. The determination of a person’s suitability for the office of administrator rests in the sound judgment of the court exercising the power of appointment and such judgment will not be interfered with on appeal. disqualified or incompetent to serve as executor or administrator in the discretion of the court? Drunkards. Q A Why are drunkards. will find much difficulty in complying with this duty by appointing administrators and guardians who are not personally subject to their jurisdiction. the surviving spouse. inveterate and continued use of intoxicants. etc. vileness or depravity in the private and social duties which a man owes his fellow men. the question raised upon appeal was considered res judicata since no appeal had been taken from the CFI order. 44 PHIL. Even though a probate court cannot just disregard the preferential rights of the surviving spouse over the estate. However. Is being a gambler a disqualification? Although being a gambler is not enumerated as a ground for disqualification. maybe unfit. administrator. Q A Q What if a person possesses an antagonistic interest with that of the estate? A mere antagonistic interest does not disqualify a person out right from being appointed as executor or administrator. modesty or good morals. and liable to be lost or diminished in value. Garcia) NAVAS v. and must be established by proof which would at least approach the certainty required for conviction in a criminal prosecution. HELD: NO. convicts. Jose Garcia was appointed by the Samar CFI as the administrator of his estate. etc. Q A • To sustain a judgment of want of integrity – the accusation should be certain and grave in its nature. to society in general. wards of the estate. and although it has been held that weakness of mind not amounting to want of understanding will not disbar one from his right to administer there is also authority for the view that weakness of mind as well. Can a corporation or an association act as an executor or administrator? A corporation or association authorized to conduct the business of a trust company in the Philippines may be appointed as an executor. charged with the responsibilities of protecting the estates of deceased persons.. or trustee. The SC has held that courts may likewise refuse to appoint a person as executor or administrator on the ground of unsuitableness. guardian of an estate. In this case. It must be noted. the courts should not consent to the appointment as administrators and guardians of person who are not personally subject to the jurisdiction of our courts here. convicts. (NOTE: the SC did not have the records of the case and simply presumed that the LC had sufficient grounds to deny Navas administration of the estate) • Want of understanding is a disqualification where it amounts to lack of intelligence. Unsuitableness may consist in adverse interest in some kind or hostility to those immediately interested in the estate. What is meant by “want of understanding”? Want of understanding means lack of knowledge to know the nature of the functions of an executor or an administrator. It cannot be interfered with on appeal unless there was clear error on the CFI’s part. A Q A What is the degree of drunkenness which would disqualify a person from being an executor or administrator? It is that degree of drunkenness that would impair a person’s sound judgment and reason and which would necessarily affect his integrity and honesty. there is nothing in the law that requires the courts to appoint residents only as administrators or guardians. However. the courts. then it amounts to a disqualification. that the unfitness of a person to act as executor or administrator by reason of drunkenness. if it is of such degree as to render him unfit or unsuitable for the position of executor or administrator. • The drunkenness contemplated by this statute. as for instance. etc. when such person has an adverse interest or is hostile to those immediately interested in the estate to such an extent as to render his appointment inadvisable. honesty. • The want of care and foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe. Moral Turpitude – an act of baseness. Appellant Juana Navas Sioca. such as would or might subject one to sinister influence or coercion against the general interest of the estate will constitute a sufficient objection. Q A What is meant by improvidence? Improvidence generally connotes unwise or ill-advised spending.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . in the opinion of the court. however. Notwithstanding that there is no statutory requirement. in like manner as an individual. the LC found that Navas had an adverse interest in the estate of such a character that would render her as an unsuitable administrator. GARCIA. to such an extent as to render the subject of the habits as unsafe against to entrust with the care of property or the transaction of business. Whether the person is suitable depends upon the sound discretion of the probate court. contrary to the accepted and customary rule of right and duty between 41 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . is that excessive. (Navas Sioca v.

If A and B die. Vda. Telesfora and Ceserea opposed the order appointing Fr. ISSUE/S: Whether Fr. given its discretion. Mercado in his engagement of said lawyers is because of the competence and confidence he has on said lawyers. Alejandro Espina. De Jaen) MERCADO vs. Is the date if such issuance the point of reckoning as regards the effectivity of the letters testamentary? NO. the court is bound to issue letters testamentary thereon to the person so named as executor of the will provided he accepts the trust and files the required bond. determine that the unworthiness. (Mercado v. this provision of law should not be strictly interpreted because the court would be deprived of its power not to appoint one who is unworthy of the trust. Illustrate the prohibition on executor of an executor. Appellants are better able to protect the interests of the estate 5. Under Section 641 of Act no. the court shall issue letters testamentary thereon to the person named as executor therein. a parish priest of San Nicolas. Executor of executor not to administer estate. Fr. administer the estate of the first testator. Q A Does a change in status of a woman affect her qualification to act as executrix or administratrix? A change in status of a woman does not affect her qualification to act as executrix or administratrix. incapacity. the estate is not yet prejudiced as it is yet to be decided who is to pay to the lawyers (the estate or Fr. herein respondent. it can disapprove such appointment as directed by the testator. Letters testamentary issued when will allowed. Mercado engaged the services of Atty. When Msgr. Letters of Administration – is an authority issued by the court to a COMPETENT person to administer the estate of the deceased who died intestate. Maria. parish priest of Cebu Central. Mercado cannot be impartial as his parish. C can only administer B’s estate but not A’s. 2. What is meant by the term “administrator De Bonis Non”? One who is appointed as the new administrator after the death of an executor who has not finished settling the estate. Gorordo chose Mercado as executor of his estate after his death. Should the court. Mercado?) 2. He may not refuse the trust by reason of public policy. since the appointment of the executor is left solely to the testator. . As the estate had no debts and since the heirs are all of age. GORORDO VDA. The reason chosen by Fr. Cebu. San Nicolas. Mercado is not the legatee but the “…poor of… San Nicolas” Q A Q A Q A Explain Section 2. husband of Cesarea. He would be considered as unsuitable for appointment as administrator since he would be considered as having an adverse interest of some kind in the estate. Gorordo. Maria Gorordo Vda. 4. he must have had good and sufficient reasons and as such. Said will instituted his sister. Atty. as such. in his will appoints B as executor and B. Mercado should be appointed executor. Letters Testamentary – is an authority issued to an executor named in the will to administer the estate. Alo and Veloso for the sole purpose of repaying the obligations owed to said lawyers. was named as an executor and in his absence. the courts have no alternative but to issue letters testamentary to the person named as executor therein? Even though the person named as executor accepts the trust and gives the bond. 4. in turn. once a will is probated. Rule 78 provides that an executor of an executor cannot administer the estate of the first testator. 3. 75 (1937) A FACTS: Msgr. May an executor refuse the trust when in consideration of such refusal the heirs bribed him? NO. Q 42 | Who issues letters testamentary? Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Is Section 4. accepts the trust.When a will has been proved and allowed. notwithstanding the fact that he was named as such by the testator. Ronald Chua Q A X keeps on borrowing from the testator and he cannot even support his own family. . his nieces Telesfora Jaen and Cesorea Gorordo. The presumption is that he was in full possession of his mental faculties at the time the will was written.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . there is no need to incur unnecessary expenses as that of executor’s and attorney’s fees. DE JAEN. was named as one of the legatees in the will. died leaving a will. Letters of Administration with a Will Annexed – is an authority issued by the court to a COMPETENT person to administer the estate of the deceased if the executor named in the will refused to accept the office. Clerks of Court and other court personnel of probate courts should not be appointed as administrator or receivers of estates of the deceased persons so as not to compromise their objectivity and impartiality in the performance of their regular function. 3. As to appellant’s allegations: 1.A married woman may serve as executrix or administratrix. While it may be true that such should not be strictly interpreted. Sec. Sec. and the marriage of a single woman shall not affect her authority so to serve under a previous appointment. A person who has some liabilities to some heirs and to the estate as a whole may likewise not be appointed administrator because he cannot be expected to compatibly perform the duties of the office. is willing to render professional services free of charge The LC denied said opposition. HELD: YES. Emiliano Mercado. Rule 78 mandatory in the sense that when a will has been proved or allowed.The executor of an executor shall not. he was named as the executor. Sec. . ineptitude and unfitness of such person is manifest and real. Further. 190. Married women may serve. so it is just to comply with his will because it is to be presumed that he had good reasons for doing so. The will was duly probated and the CFI of Cebu confirmed the appointment of Fr. Reviles. A Q A Q A Q A Q The Clerk of Court by authority of a probate judge issues letters testamentary When are letters testamentary issued? After the will has been filed and an appropriate probate had wherein the will passes probate. Mercado after the later filed a ₱ 5000 bond. the parish of Fr. 2. will you issue letters testamentary to X? what if he was appointed as administrator? The will or the testator should be given respect by the probate court. if he is competent. and gives bond as required by these rules. the retired bishop of Cebu. Mercado as executor and prayed for the suspension of said order alleging that: 1. Rule 78 of the Rules of Court Section 2. A. for the court may be deprived of its power to appoint another should the executor so named is incapacitated. it is also true that incapacity must be manifest and real and not merely imaginary. his will must be respected. De Jaen as his universal heir and in case of her death. Nevertheless. appoints C in his own will as executor. the letters retroact to the day of the testator’s death. Fr. 64 PHIL. As judge.

6. a person dies without a will Does Section 6. The requirement of a hearing and the notification to all the known heirs and other interested parties as to the date thereof is essential to the validity of the proceeding for the appointment of an administrator in order that no person may be deprived of his right or property without due process of law. a hearing is necessary in order to fully determine the suitability of the applicant to the trust by giving him the opportunity to prove his qualifications and affording oppositors. administration shall be granted: (a) To the surviving husband or wife. and they may perform the duties and discharge the trust required by the will. the said grounds must be manifest and real. et al. or a person dies intestate. Atty. The fact that a judge is granted discretion does not authorize him to become partial. to wit: 1. Q A court appoints only one administrator in intestate estates.When all of the executors named in a will can not act because of incompetency. when no reasonable objection to his assumption of the trust can be interposed any longer. What is the nature of the liabilities of the executors under this section? The liability of the executors in this section is SOLIDARY since the act of one is the act of all. Ronald Chua 3. And as the rights granted by will take effect from the time of his death. Sec. since its power is limited to recognizing and approving or disapproving an appointment by the testator. . Q A Q A Q What is the nature of the act of the executors in this section? The act of one executor is the act of all. They have equal authority among themselves since under the law. or next of kin. appoints as special administrator any person other than the executor named in the will. not merely imaginary. And where the probate court pending appeal against its order admitting a will to probate and appointing as judicial administrator. Due to the numerous legacies and several claims being made on the estate. this discretion should not be a whimsical one. may a special administrator be appointed in the meantime? The choice of the executor is a precious prerogative of a testator. if any.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . or his passions to rule his judgment. to contest the said application. 5. he appoints an executor but the executor fails to give a bond 2. it may be granted to one or more of the principal creditors. without appointing an executor b. namely when: 1. What is the extent of the court’s power over the testator’s choice? The court itself can make no original appointment of an executor. be incompetent or unwilling. Moreover. 4. When a will has been admitted to probate but was appealed. Also. and d. on the part of one or more of them. or the person selected by them. a necessary concomitant of his right to dispose of his property in the manner he wishes. neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person. while as a rule. as the case may be. or to such person as such surviving husband or wife. if competent and willing to serve. (c) If there is no such creditor competent and willing to serve. what is the extent of each one’s authority? The general practice is that co. etc. it is absolutely necessary to appoint an executor. But in order to do this. accept and give bond. Q A When there is more than one executor or administrator. or if the husband or widow. (b) If such surviving husband or wife. However. extrajudicial settlement by agreement between the heirs. Sec. they are only one person representing the testator. Such power of appointment is not even governed by the preference rule governing appointment of regular administrators. Q A A Q A 43 | May the court appoint more than one executor or administrator? YES. Hence. it may be granted to such other person as the court may select. Rule 74 establishes 2 recognized exceptions. or the executor or executors are incompetent. who died leaving properties in the Philippines. more than one administrator may be appointed by the court. or next of kin. a person dies with a will a. or both. Revilles will be a partial executor as he had previously sought to exclude shares of Monte de Piedad from the inventory of the estate alleging that they were not mentioned in the will. there is no reason why the same fundamental and legal principles governing the choice of a regular administrator should not be taken into account in the appointment of the special administrator. . When and to whom letters of administration granted. it is the duty of the court to issue letters testamentary to the person named as executor upon his application. the Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . requests to have appointed. his property should be judicially administered. or fail to give bond. he appoints an executor but the executor refuses. The court has the power not to appoint a person named in a will as executor on the basis of unworthiness. Where some coexecutors disqualified others may act. incapacity. if competent and willing to serve. he appoints an executor but is incompetent c. Hence. must always be judicially administered? This legal provision enumerates the general rule that when a person dies leaving property in the Philippines. ineptitude and unfitness. and acts done by one in reference to the administration of the testator’s estate are deemed the acts of all inasmuch as they have a joint and entire authority over the whole property belonging to the estate. Q A Has the court an unbridled power not to appoint a person named in the will as executor? NO. An agreement between executors or administrators that one alone shall manage the estate is VOID.administrators will exercise joint supervision over the entire estate.executors or co. Rule 78 require that the estate of a person. More than 1 executor may be issued letters testamentary in accordance with the nomination in the will. vs. it contains an abuse of discretion (Ozaeta. What is required for the validity of the appointment of the administrator? It is important for the validity of the appointment of the administrator that a hearing of the petition for administration be conducted and notices thereof sent to the other heirs and interested parties. letters testamentary may issue to such of them as are competent. or failure to give bond. Q A Q A When are letters of administration granted? Section 6. but one that is reasonable and logical and in accord with fundamental legal principles and justice. refuse the trust. and 2. in the discretion of the court. the person named therein as executor. the management of his estate by the administrator of his choice should be made as soon as practicable.If no executor is named in the will. Nevertheless. The curtailment of this right may be considered a curtailment of the right to dispose. refusal to accept the trust. it has been held that when a will has been admitted to probate. summary settlement of estates of small value. or next of kin. or to make his personal likes and dislikes prevail over. Rule 78 contemplates of two cases wherein letters of administration shall be granted. as the case may be. or next of kin. There is an equality of authority among them. Pecson. and BPI) The Rules of Court grants discretion to the probate court to appoint or not to appoint a special administrator.

The LC having been of the opinion that de Guzman deserves the appointment of co-administrator and it being discretionary on the part to determine who should be appointed administrator of the properties of a deceased person. Therefore. Apolinario de Guzman (brother of Nicolasa de Guzman) whom the latter needs to help her in the administration of the properties left by their deceased father. But where the marriage is void. Angela Lomcolioc) The underlying assumption behind the rule is that those who will reap the benefit of a wise speedy economical administration of the estate. Among members of a class. the strongest Q A What is the order of preference in the appointment of an administrator? When the appointment of an administrator is proper. under the circumstances of each case. because she is supposed to have an interest therein as a partner in the conjugal partnership. LIMCOLIOC. If they are not. If the interest in the estate is what principally determines the preference in the appointment of an administrator of the estate of a deceased person. The fact of marriage alone introduces a change in the conditions of guardianship over a minor woman. Aguinaldo) DE GUZMAN vs. Limcolioc (same parties) this court stated that the principal consideration reckoned with in the appointment of the administrator of the estate of a deceased person is the interest in said estate of the one to be appointed as such administrator. Proceso married herein appellant Angela Limcolioc with whom he had no child. the preference established in the latter’s favor fails to the ground. What is the basis of the preference in this section? The basis of the preference is the BENEFICIAL INTEREST IN THE ESTATE. she must be preferred.e. then such other persons as the court may select. and 5. After the death of Proceso. the court may entirely disregard the preference thus provided. Generally. suffer the consequences of waste. FACTS: Proceso de Guzman married Agatona Santos. and if. This is the same consideration which the law takes into account in establishing the preference of the widow to administer the estate of her husband. then the person selected by them. This is the reason for the rule that in the selection of an administrator. If the interest in the estate is what principally determines the preference in the appointment of an administrator. is preferred in the choice of administrator. Why is the surviving spouse preferred above all others? Since the principal consideration in the appointment of an administrator is the interest in the estate of the one to be appointed. the surviving spouse’s prior right is not recognized. the order of preference may be disregarded only when the reasons therefore are positive and clear. Rule 78 is founded on the assumption that the persons preferred are suitable. Furthermore. the preference established in the latter’s favor becomes untenable. During the marriage the couple acquired properties. the persons appearing in the order of preference may not be appointed where he appears to be unsuitable for the trust as when he has an adverse interest or is hostile to the interested parties to such an extent as to make his selection inadvisable. courts may exercise discretion and. then the surviving spouse is preferred since the law. it develops that there is another who has more interest therein than the surviving spouse. What is meant by the term “next of kin” as used in this article? “next of kin. (Gonzales vs. many of which consist in fisheries situated in the province is as interested as his sister in that said properties be duly administered and conserved for the benefit of the heirs. The preference established by law is not absolute if there are reasons justifying the appointment of an administrator other than the surviving spouse. the nearest of kin whose interest is more preponderant. But this preference established by law is not absolute. On the other hand. takes into account the interest of the surviving spouse in the estate of the deceased as a partner in the conjugal partnership. After the death of Agatona. in default of any person selected by the surviving spouses or next of kin. Is the preference of the surviving spouse a hard and fast rule? NO. as stated elsewhere. Angela opposed. Moreover. But of course. he is the proper individual to fill the office. under the circumstances of each case. if not appearing that said court has committed a grave abuse thereof. 68 PHIL 673 (1939) Q A Q A Q A 4. the order of preference established in Section 6. Why are “next of kin” preferred after the surviving spouse? The “next of kin” are preferred after the surviving spouse since under the statute of distribution (i. Rule 78? The principal consideration reckoned with in the appointment of the administrator of the estate of a deceased person is the interest in said estate of the one to be appointed as such administrator. There is no ground to believe that he would squander said properties and the products thereof. the children of the first marriage shall be preferred to the childless widow of the second marriage in the selection of an administrator. compulsory succession and intestate succession) they are entitled to the decedent’s property. the existence of a guardianship over the estate of a married woman in other hands than those of the husband is in certain respects undesirable since the husband is legally entitled to the management of conjugal property and the earnings of the paraphernal property of the wife constitute community property. if the husband is found to be a suitable person. improvidence or mismanagement have the highest interest ant most influential motive to administer the estate correctly. Q A Q A What is the effect of the invalidity of the marriage upon the right to be appointed administrator? The right of a surviving spouse to be appointed administrator of the estate of the deceased spouse is not affected by the fact that her marriage is voidable. then one or more of the principal creditors. ISSUE/S: Whether the LC erred in appointing de Guzman as coadministrator HELD: NO.” as used in this section means heirs under the law of succession. in default of such creditors. to the next of kin 3. In the case of de Guzman v. to the surviving spouse 2. if there are other reasons justifying the appointment of an administrator other than surviving spouse. with whom he had four children: Nicolasa (appellee). upon the latter’s death. Ronald Chua Q A What is the basis or primary consideration in the appointment of an administrator? Is it the same as the principal consideration in the establishment of the preference under Section 6. The reason cited above are applicable to the case at bar. Rule 78 takes into account in establishing the order of preference in the appointment of administrators for the estate (Nicolasa de Guzman vs. it develops that there is another who has more interest therein than the surviving spouse. the letters of administration shall be granted in the order of preference as follows: 1. and although the marriage of a girl who is under guardianship does not ipso facto abolish the guardianship over the property. SC believes that it is unjustified for the SC to meddle in the exercise of such discretion. Q A 44 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Ana and Tomasa. and if. contending that as the widow. Nicolasa was appointed by the court as administrator of the properties. in default of the surviving spouse or next of kin. in considering the preference. Apolinario. it does not terminate the guardianship over the person. An example would be in case the whole or major portion of the estate of the deceased has been acquired by him during the first marriage. This is the same consideration which Section 6.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty .

if the person to be appointed as ancillary administrator is residing in the Philippines and is not incompetent. Upon the death of his wife. to file a petition for letters of administration as authorized by Sec. for distribution among the next of kin. the nearest of kin is to be preferred. Straits Settlements. They contend that the Manila court acted in excess of his jurisdiction in appointing him as administrator of funds of the state on deposit in the Philippines and that an administrator in this jurisdiction is necessary. who. As between next of kin. if he applies. That the deceased left no will in the absence of which the B. There being no express statutory requirement on the matter. Rule 78. so may the 30-day period be likewise waived under the permissive tone in paragraph (b) of said rule which merely provides that said letters as an alternative. Section 642 of the Code of Civil Procedure (now Section 6. HARVEY. 175 (1922) Q A To whom are ancillary letters granted? Ancillary letters may be granted in the Philippines according to the order of preference stated in Section 6. After the decision was rendered by this court in case No. the court would give consideration to his petition that he be named ancillary administrator for local purposes. Maslog) General Rule: the court cannot set aside the order of preference under Sec. for it may be found that the surviving spouse is unsuitable for the responsibility. Q A in the City of Manila. the B. or to his nominee or attorney. The Singapore heirs opposed Alfred’s appointment. when those to whom the estate would go under the law offer to pay the claim of a particular creditor and tender the same. by operation of law. 43 PHIL. it is deemed advisable to name someone else. in legal effect. whether the court erred in appointing the brother of the deceased who was a resident of Manila over the husband who was in Singapore? HELD: When a person dies intestate owning property in the country of his domicile as well as in a foreign country administration is had in both countries (that which is granted in the jurisdiction of the decedent’s last domicile is termed the principal administration while any other administration is termed the ancillary administration). 6. resides in Singapore. was a resident of Singapore. he becomes the legal owner of a claim against the decedent. Rule 78 Exception: In case the person who have the preferential right to be appointed under the Rule are not competent or are unwilling to serve administration or they neglect to apply for letters administration for 30 days after the decedents death. that Alfred D'Almeida is a brother of the deceased Carmen Theodora Johannes. Corollary when the status of a creditor ceases. deceased. Otherwise. Johannes is the husband of Carmen Theodora Johannes. It was proper for the court to appoint an ancillary administrator over the properties of the deceased in the Philippines. What is the territorial extent of the appointment of the ancillary administrator? The general rule universally recognized is that administration extends only to the assets of the decedent found within the state or country FACTS: Q A B.E. Q A Who are the creditors that may be appointed administrator? The term creditor within the meaning of the provision which entitles creditors of a decedent to letters of administration is used in its usual acceptation as importing one whom the decedent owed. Moreover. One is not a creditor within the rule unless the decedent was indebted to him personally or unless.E. Rule 78. If the husband should come into this jurisdiction.E. (Rio y Compania vs. ISSUE/S: Whether the appointment of an administrator over the estate in the Philippines necessary? If yes. Rule 138) leaves this to the discretion of the court to determine. That which is granted in the jurisdiction of the decedent’s last domicile is termed PRINCIPALLY DOMICILIARY ADMINISTRATION while any other administration is termed ANCILLARY ADMINISTRATION (Johannes vs. It is almost a universal rule to give to the surviving spouse a preference when an administrator is to be appointed unless for strong reasons. 6(b). and that B. Harvey) JOHANNES v. the right to administer the estate likewise ceases.E. at the time of her death. • The Order of Appointment of Regular Administrator is final and appealable. and if none were had.55 on deposit in one of the banks 45 | Q A Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . it is noted that the husband of the deceased (who is) the administrator of the principal administration. settle the accounts and remit the surplus to the domiciliary jurisdiction. and qualified and entered upon the discharge of his duties. he asked for an order of court that Alfred D'Almeida be removed as ancillary administrator. What if the decedent died leaving properties in different states or countries? When a person dies intestate owning property in the country of his domicile as well as in another country. administration to be had in both countries.” Q A What is the extent of the grant of letters of administration? The general rule universally recognized is that the grant of letters of administration extends only to the assets of a decedent found within the state or country where it was granted so that an administrator appointed in one state or country has no power over property in another state or country. Moreover.residence is a factor to be considered in determining the propriety of the appointment and in this connection. Johannes claims to be her sole heir and entitled to all of her estate. the letters may be granted to such other person as the court may appoint. therefore. It is the opinion of the court that the administration of the estate of the deceased in the philippines could best be taken cared of by the brother who was also residing in the country rather than by the husband who was in Singapore. was indebted to a bank in Manila for about P20.E. Johannes. the B. it was appellant’s duty to present its claim within a reasonable time after the death of the decedent in the estate proceedings.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . that at the time of her death Carmen Theodora Johannes had P109. and that he be appointed. 18600. • As a creditor. that he is also a foreigner and a citizen of Great Britain and an actual resident to Singapore. the court may in its discretion appoint some other person. Johannes came to Manila and claims to have established a temporary residence at the Manila Hotel. That there were no debts against the estate of the deceased.000. What is the duty of the ancillary administrator? The duty of the ancillary administrator is to pay the claims of the creditors if there be any. “may be granted to one or more of the principal creditors. and a bona fide resident of the City of Manila. Ancillary letters should be ordinarily be granted to the domicillary representative if he applies therefore or to his nominee or attorney but the absence of express statutory requirement the country may in its discretion appoint some other person. based upon which. all reasons for giving the creditor a preference in the appointment as administrator cease. non.722. 30-day Period May be Waived • Just as the order of preference is not absolute and may be disregarded for valid cause despite the mandatory tenor in the opening sentence of Rule 78 for its observance. ancillary letters may be granted to the domiciliary representative. Johannes was duly appointed as administrator of her estate by the court at Singapore. and a citizen of Great Britain. A grant of administration does not by its own force have any effect beyond the limits of the country in which it is granted. Ronald Chua ground for preference is the amount of preponderance of interest.

Damasa Crisostomo. They claimed that the judgment was obtained through fraud since they were not given personal notice of the hearing. Adela had the right to intervene as one of the legal heirs. An unverified manifestation signed by Adela Gutierrez. participation and interest in the estate of Irene Santos and the first manifestation were obtained thru fraud by Villegas were vitiated by mistake or undue influence. which the trial court approved. ET AL. (Trillana vs. Rizalina Santos Rivera and Adela Santos Gutierrez. IN THE MATTER OF THE INTESTATE ESTATE OF THE DECEASED IRENE SANTOS. PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION Sec.Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein executors.R. interests and participation in the estate does not have the effect of losing one’s standing or right in the probate court whether such assignment has been judicially approved. RULE 79 OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. Jose Villegas filed with the CFI of Rizal. unless otherwise provided by law. and the court. the assigning heir remains an interested person in the proceeding even after said approval. an exchange. ISSUE/S: Whether the brothers and sisters could intervene. by the mere act of assignment and desistance. In his will. Hence. this appeal by the siblings. be filed for letters of administration with the will annexed.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . if the settlement of the estate is already pending before the probate court. VILLEGAS. Only the forced heirs whose rights have been prejudiced have the right to intervene in a case of this character. . or any of them. at the same time. G. ANTONIO GUTIERREZ DEL CAMPO vs. accompanied by a public instrument entitled "Kasulatan ng Bilihan at Salinan" was presented to the Probate Court whereby Adela Gutierrez assigns her rights. G. No. contending that the illegitimate children not having the status of natural children are entitled only to support. and RIZALINA SANTOS RIVERA. 1. However. HELD: NO. 1962 FACTS: Irene Santos died intestate. an aggrieved heir does not lose her standing in the probate court. L-39796 March 9. NAZARIO TRILLANA vs. However. Q What is the effect of the execution by an heir of a deed of assignment of his rights and interests and participation in the estate? A Only forced heirs of the deceased are interested persons who are entitled to intervene in order to protect their interest in so far as they may have been prejudiced by the will. JOSE D. They are not entitled to notice because they have no legal interest in the case. Varela Calderon) A In the matter of the estate of the deceased Francisco Varela Calderon. ET AL G. Crisostomo) TESTATE ESTATE OF THE DECEASED DAMASA CRISOSTOMO. ADELA SANTOS GUTIERREZ vs. But in this case. L-3378 August 22. Nevertheless. Villegas and Rizalina filed exceptions and/or objections to the Manifestation.. must be material and direct. (Gutierrez vs. Had any of them been forced heirs. denying the allegations of fraud. the interest is purely contingent or dependent upon several uncertain and future events. undue influence and the like. Opposition to issuance of letters testamentary. No. the person’s interest must be material and direct and not merely indirect or contingent so that he will be materially benefited or injured by the court’s order or judgment. in order that a person may be a party in civil actions and special proceedings. one of the nephew and nieces of the deceased. so that he may be benefited or injured in the same way by the court’s judgment. motions. mere assignment of one’s rights. the settlement court had already acquired jurisdiction over the properties of the estate. if the partition had been judicially approved on the basis of the alleged deed of assignment. Q What is the interest required to make a person a party? The rule is that every act intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition. they could not intervene because they are not forced heirs of the deceased and therefore they have no right to any of the properties left by the testator. Q Who is an interested person? A Any interested person is one who would be benefited by the estate. once he have disposed of them by will. and the heirs cannot just divest the court of its jurisdiction over the estate and over their persons. (Gutierrez del Campo vs. Thereafter. Heirs who were not forced heirs of the deceased have no right to any part of the property left by the testator once he had disposed of the same by will. L-11848 May 31. As a result. Administrator. Villegas) In other words. leaving as her only heirs her surviving spouse Jose D. which can be vacated. A petition may. a compromise. CONSORCIA P. VILLEGAS.R. questioned the decision of the probate court allowing its execution of the will. court approval is imperative. he left no ascendants. orders filed in court. MIGUEL VARELA CALDERON. Villegas and two nieces — daughters of a deceased brother. any assignment regarding the same has to be approved by the court. 1934 HELD: The deceased. Q Who are the heirs deemed as interested persons? FACTS: Concordia Crisostomo. He died in Spain. she had A Unless otherwise provided by law. the lower court issued an order declaring that although at the onset. No. Adela later averred that the deed of assignment of her rights. Ronald Chua where it was granted so that an administrator appointed in one state or country has no power over property in another state or country. Since the approval of the court is not deemed final until the settlement of the estate is closed. Francisco Varela Calderon. a petition for Letters of Administration. This is so because at the time of said assignment. they would have been entitled to intervene and protect their interest as far as they may have been prejudiced by the will. was a bachelor and a citizen of the Philippines. In a civil action and special proceedings. shall pass upon the sufficiency of such grounds. the interest required in order that a person may be a party. yet when she filed her deed of assignment. participation and interest in the estate to Rizalina and that she will not take part in the proceedings and not entitled to the service of any pleadings. he had brothers and sisters of the full blood and illegitimate children.R. and was appointed administrator of the estate. he left something to his illegitimate children and nothing to his siblings. ISSUE/S: Are the nephews and nieces entitled to notice? HELD: NO. CRISOSTOMO. although it should purport to be a sale. JOSE D. after hearing upon notice. 1951 46 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . It is for the reason that these transactions are in the nature of extrajudicial partition. But it is evident that they have not been injured or prejudiced in any manner whatsoever. or any other transaction. At the time of his death. Simultaneous petition for administration. The executor named in the will presented a project of partition in accordance with the probated will. such as an heir or one who has a claim against the estate such as a creditor.

there is no necessity of any court approval. Although Adela had filed a manifestation dropping herself from the proceedings and presenting therewith the supposed Deed of Assignment. Hence this appeal with appellants contending that via the case of In re Irene Santos. etc. a minor. is deemed to be a petition to intervene in a settlement proceeding and as there is no settlement proceeding to speak of. Cipriano replied alleging that Josefina was not the decedent’s wife and that the renunciation so executed was procured through fraud with gross inadequacy of price and vitiated with lesion. which are the subject matter of the partition. Q In what form must an opposition be? A The opposition must be in writing. Miguel. Q Is it necessary for the person filing an opposition that he himself be eligible or appointed? A NO. The petition of Miguel. Thus. Pending the outcome of the action. signed by the applicant and stating the facts essential to give the court jurisdiction over the case. A was named administrator of X’s estate. B filed an opposition thereto. ISSUE/S: Whether Adela is an interested party HELD: Adela Santos Gutierrez is an indispensable party to the proceedings in question. the fact that he himself is not eligible for appointment does not deprive him of the right to object to the appointment of another. Does the opposition of B bind C. the properties subject matter of the assignment were not under the jurisdiction of a settlement court. A. or does C have to file a separate opposition? A B’s opposition is binding upon C. a compromise. Cipriano is still an interested person as said case held that an assignment made by one heir to a co. until the assignment is properly rescinded or annulled. another brother. her interest would merely be a contingent one. are not within the jurisdiction of the court. Later on. the court in the said case has acquired jurisdiction over the properties and such assignment should be approved by the settlement court. should the will be eventually probated. lesion or inadequacy of price. or any other transaction. nevertheless fails to show that action thereon had been taken by the probate Court. Can Z. Josefina filed an opposition praying for its dismissal alleging that the petitioner was not an interested person in view of the above mentioned renunciation or for her appointment as administratrix. Duran) ₱ If the assignment is being assailed by the heir on the ground of fraud. Q Suppose X died and was survived by three. person must have material and is only indirect and contingent. Even if Josefina prayed to be appointed as administratrix. it was established at the time of death of Irene Santos. Therefore. joined Cipriano as co. Q Who is an interested person? A An interested person is one who would be benefited by the estate. (Duran vs. 1961 without a will. it is 47 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Q Can a legatee file an opposition to the issuance of letters of administration? A It has been declared that the legacy constituted in a will suffices to grant the legatee personality necessary to ask that appropriate measures be taken for the preservation of such rights as the legatee may have. leaving his wife. Ronald Chua ceased to have any interest in the estate and until which such is annulled. although it should purport to be a sale. Objection to the issuance of letters testamentary or of administration can be made only by persons having interest in the estate but where one has interest.petitioner.heir amounts to a partition which needs the approval of the settlement court. It must state the grounds why letters testamentary should not issue to the persons named therein as executors or any of them. oppose the appointment of Y on the ground that the latter is a drunkard? A YES. and several siblings and nephews and nieces. Consequently. the assigning heir is deemed to be left without any interest in the estate and cannot subsequently petition for its settlement. Every act intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition. The situation contemplated in the Santos case is an assignment pendent elite. 20 SCRA 379 FACTS: Pio Duran died on February 28. The properties. should her motion to dismiss fails. the record. Cipriano Duran.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . who sought to join Cipriano. the latter does not have to file another opposition. then the proper remedy is to rescind or annul the same in an action for that purpose. no settlement proceedings are pending. Therefore. Q What issues must be raised by a party opposing the issuance of letters of administration? A An interested party may oppose the application of another for administration by raising the issue of the right of the appellant to secure administration or by raising the issue of the existence of an estate to administer or that the applicant for letters of administration is incompetent on some ground specified by the statute or is not entitled to appointment. Q What is the effect of such assignment? deemed to be valid as against Cipriano and he is deemed to be without interest in the estate required for the petition for the settlement of said estate. Her interest in the estate is not inchoate. Cipriano filed an intestate proceeding with the CFI of Albay and sought to have himself appointed administrator. Hence. Hence. one of the surviving brothers executed a public instrument renouncing his rights to the decedent’s estate in favor of Josefina for the consideration of ₱2. such as an heir or one who has a claim against the estate. This includes the right to intervene in the manner of appointment of an administrator whether special or regular. DURAN. Q X died and was survived by his two sons. Q Who may oppose the issuance of letters testamentary? A Any person interested in a will may file an opposition to issuance of letters testamentary. it is also a fact that she asked the same to be annulled. Should the assignment be alleged to be tainted with fraud. X named Y as executor. • The opposition may be the issuance of Letters annexed. The CFI dismissed the petition. While in the case at bar. An objection raised by one party invites to the DURAN vs. accompanied by a Petition for of Administration with the will A If the assignment took place when no settlement proceeding was pending. ISSUE/S: Whether Cipriano is an interested person? HELD: NO. the assignment does not need court approval to be effective between the parties. in his will. the same must be denied. a direct. lesion. While it is true that she executed a deed of assignment. Therefore. the proper remedy is to rescind or annul the same in an action for that purpose. such did not amount to a ratification of the petition for settlement as she did so only as an alternative prayer. B and C. his interest is merely contingent. such as a creditor. • In order to be a party.500. Josefina. an exchange. Z can oppose. His mere disqualification as a minor does not stop him from filing an opposition if he believes reasonable grounds thereof exist. and not one that interest. Y and Z.

4. if the decedent is a non. 2. 5. Hence. Q Explain the last sentence of Section 1. and the names and residences of the creditors. Q What are the contents of a petition for letters of administration? A A petition for letters of administration must show. and the names and residences of the creditors. file a petition for administration with the will annexed. the probable value of the estate. Q In a petition for letters of administration. Where no notice has been given to persons believed to have an interest in the estate of the deceased person the proceeding for the settlement of the estate is void and should be annulled. but in the event the court approves the nomination of the executor. Notice of such must also be given to the known heirs and creditors and any other persons who have an interest in the estate who are residents of the Philippines. It is merely an interlocutory order. so far as known to the petitioner: 1. ages and residences of possible heirs and creditors. )4 The name of the person for whom letters of administration are prayed. 2. of the decedent )3 The probable value and character of the property of the estate. so far as known to the petitioner: )1 The jurisdictional facts. notice through publication is jurisdictional. order of notice. Contents of petition for letters of administration. cause notice to be given to the executor. The jurisdictional facts. 4. set date for hearing. ₱ Note that the above provides for the same requirements when filing a petition for probate or allowance of a will. and to any other persons believed to have an interest in the estate. creditors and other persons believed to have an interest in the estate is required before hearing • Sec. . 2. the petition for administration with the will annexed must necessarily be denied. ages. 2. the place where he has an estate which must be within the territorial jurisdiction of the court before whom the petition is brought. actual copies of newspapers where notice was published. It simply gives the parties an opportunity to be heard and the court an occasion for action. fix the time and place for hearing the petition 2. and it is unnecessary that each separately file the same objection Q What must the court do when an opposition to issuance of letters of testamentary is filed by an interested party? A The court must: 1. established and marked as exhibits in court: 1. and shall cause notice thereof to be given to the known heirs and creditors of the decedent. cause the notice thereof to be given to: (a) known heirs of the decedent (b) known creditors of the decedent and (c) other persons believed to have an interest in the estate. 3 is Jurisdictional Q What must the court do when a petition for letters of administration is filed? A The court must: 1. with the issuance of letters testamentary to him. pass upon the sufficiency of such grounds during the hearing Q What is the effect of an objection to the appointment for administration? A The objection stands as an answer to the petition for appointment and where objection has been duly made by a party in interest. (De Guzman vs. the name of the person for whom letters is prayed for. Q Is the order fixing the date for hearing for the appointment of an administrator appealable? A An order of a probate court fixing the date for the hearing of an application for appointment of an administrator of the estate of a deceased person is NOT APPEALABLE. • Publication for 3 weeks and notice to heirs. the issuance of letter should be suspended until the determination of the objection or its withdrawal.A petition for letters of administration must be filed by an interested person and must show. in a newspaper of general circulation in the province where the court has jurisdiction. Notice thereof. and 3. Angeles) ₱ We must differentiate between the jurisdiction of the probate court over the proceeding for the over the persons who are administration of an estate interested in the settlement of the estate. heirs/legatees 2. 2. the following jurisdictional facts must be alleged: 1. his last place of residence which must be within the territorial jurisdiction of the court before whom the petition is brought. subsequent to the petition void and subject to annulment. there must be notice of the time and place of the hearing published 3 weeks successively previous to the time appointed. registry return card/ sheriff’s return.resident. The court will thus have two petitions pending before it. The absence of which makes court orders affecting other persons. Angeles) 5. of the decedent 3. A When a petition for probate of the will has been filed. . at the same time and in anticipation of such disqualification. 3. affidavit of publication. 48 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . the names. either by registered mail or by personal service. 3. The requirement as to notice is essential to the validity of the proceeding in order that no person may be deprived of his right to property without due process of law. The name of the person for whom letters of administration are prayed. Court to set time for hearing.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Q What kinds of notices are required to be made before the hearing of the petition for letters of administration? A The same notices required in the petition for probate of a will under Sections 3 and 4 of Rule 76 are required to be made in the petition for letters of administration.When a petition for letters of administration is filed in the court having jurisdiction. and residences of the heirs. challenge the qualifications of the person nominated therein as executor but. But no defect on the petition shall render void the issuance of letters of administration. death of decedent as evidenced by his death certificate Sec. in the manner provided in Sections 3 and 4 of Rule 76. The probable value and character of the property of the estate. what are the jurisdictional facts which must be alleged? A In a petition for letters of administration (or petition for settlement of intestate). and Q How do you establish jurisdictional facts in court during the petition for letters of administration? A The following must be presented. Verily. 4. 3. )2 The names. such court shall fix a time and place for hearing the petition. Sec. and residences of the heirs. Q Why is there a need for such notices? A The purpose of the notices is to bring all interested persons within the court’s jurisdiction so that the judgment therein becomes binding on all the world. Ronald Chua benefit of all parties interested in the subject. Section 1 authorizes a person interested in the estate to 1. (De Guzman vs. if the decedent is a resident of the Philippines. The names. ages.

letters of administration may be granted to any qualified applicant Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . DEPUTY SHERIFFS JOSE B.Letters of administration may be granted to any qualified applicant. However. Q What are the grounds for opposing a petition for administration? A The following are the grounds for opposing a petition for administration: 1.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . (3) decedent left personal and real properties as part of his estate (4) the properties were acquired after the marriage of the petitioner to the decedent and therefore are included in their conjugal partnership. 4. that he has a better right to the administration Q What is the duty of the court then? A If satisfied that decedent left no will and that there is no competent and willing executor. . the proceeding for the settlement of the estate is void and should be annulled. Sec. (5) the estate of -the decedent has a probable net value which may be provisionally assessed at P4. de Guzman filed a petition for the settlement of the intestate estate of Manolito de Guzman. 1988 FACTS: Elaine G. or that there is no competent and willing executor. if such persons fail to appear when notified and claim the issuance of letters to themselves. 78590 June 20. or on the ground of the contestant's own right to the administration. or there is no competent and willing executor Q Is the order for the issuance of letters of administration appealable? A The order for the issuance of letters of administration APPEALABLE. before the RTC of Makati. The petition alleges that: (1) Manolito de Guzman died in Makati. 5. is most qualified and entitled to the grant of letters of administration. who have accounts payable and existing claims against the firm — C. by filing a written opposition. Q To whom may letters of administration be granted? A Under Section 6 of this Rule. PEDRO DE GUZMAN vs. . ISSUE/S: Whether a probate court may appoint a special administratrix and issue a writ of possession of alleged properties of a decedent for the preservation of the estate in a petition for the settlement of the intestate estate of the said deceased person even before the probate court causes notice to be served upon all interested parties. the decedent was a resident of Makati. none has been found and according to the best knowledge information and belief of the petitioner. incompetence of the person to whom letters are prayed. Trouble ensued when the respondents tried to enforce the above order. (2) at the time of his death.R.000. and to grant her motion for assistance to preserve the estate of Manolito de Guzman. to issue a writ of possession of alleged 49 | Sec. or to any competent person or persons named in the opposition. No. Rule 79 of the Revised Rules of Court was caused to be given by the probate court before it acted on the motions of the private respondent to be appointed as special administratrix. Notice through publication of the petition for the settlement of the estate of a deceased person is jurisdictional. Ronald Chua FACTS: To acquire jurisdiction. the hearing was postponed on motion of petitioner's counsel. Elaine filed her "Ex-Parte Motion to Appoint Petitioner as Special Administratrix of the Estate of Manolito de Guzman. HELD: NO. Flora and Honorio Santos tried to take the subject vehicles on the ground that they were his personal properties. 6. The need for the proper notice even for the appointment of a special administrator is apparent from the circumstances of this case. lower court granted the Elaine's motion to be appointed as special administratrix and ordered some military men and/or policemen to assist her in preserving the estate of Manolito de Guzman. and (9) the petitioner as the survey surviving spouse of the decedent. Sec. Pedro de Guzman. no such emergency is shown in this case. 3 was given. no notice as mandated by section 3. Elaine filed a motion for writ of possession over 5 vehicles registered under the name of Manolito de Guzman. In the meantime." RTC Judge directed that all parties in the case be notified. Hearing and order for letters to issue. the lower court issued an order setting for hearing the motion and directing the deputy sheriff to notify petitioner Pedro de Guzman at the expense of the private respondent. as mandated by the Rules of Court. subsequent to the petition void and subject to annulment. contest the petition on the ground of the incompetency of the person for whom letters are prayed therein. ₱ Procedure is the same when filing a petition for probate is Q What must the oppositor establish? A The oppositor who seeks to be appointed as administrator must establish: 1. and 2. properties of the deceased person in the widow's favor. contestant’s right to administration. DE GUZMAN G.000. the express requirement of the statute has not been complied with.law. However. though it appears that there are other competent persons having better right to the administration. alleged to be conjugal properties of the de Guzman's but which are at present in the possession of the private respondent's father-in. (6) the possible creditors of the estate. it shall order the issuance of letters of administration to the party best entitled thereto. SANTOS Construction (7) the compulsory heirs of the decedent are the as the surviving spouse and their two (2) minor children namely: Charmane Rose de Guzman 11 years and Peter Brian de Guzman. The motion stated that as co-owner and heir. (Eusebio vs. (8) after diligent search and inquiry to ascertain whether the decedent left a last will and testament. Valmores) • Letters of Administration will issue if it is proven that: (a) Notice as required in Sec. RTC Judge ZOSIMO Z. 3. the incompetence of the executor named. FACTS: To acquire jurisdiction. or 2. If emergency situations threatening the dissipation of the assets of an estate justify a court's immediately taking some kind of temporary action even without the required notice.Any interested person may. Nevertheless. it shall order the issuance of letters of administration to the party entitled thereto. . notices by publication are essential. The petitioner resisted when Deputy Sheriffs Jose B. The petitioner also stresses that the appointment of a special administratrix constitutes an abuse of discretion for having been made without giving petitioner and other parties an opportunity to oppose said appointment. In the instant case.At the hearing of the petition. no notice of the order was given to De Guzman. On the same day. the respondent court not having acquired jurisdiction to appoint a special administratrix because the petition for the settlement of the estate of Manolito de Guzman was not yet set for hearing and published for three consecutive weeks. the filing of the petition before the court is necessary. it must first be shown that notice has been given as hereinabove required. and (b) The decedent left no will. the private respondent must have the possession of said vehicles in order to preserve the assets of her late husband. • Where no notice as required by this section has been given to persons believed to have an interest in the estate of the deceased person. When letters of administration granted to any applicant. Opposition to petition for administration. ANGELES. De Guzman contends that the order is a patent nullity. FLORA and HONORIO SANTOS and ELAINE G. and thereafter the court shall hear the proofs of the parties in support of their respective allegations. and may pray that letters issue to himself. 9 years old. the absence of which makes court orders affecting other persons. and if satisfied that the decedent left no will.00 more or less.

S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Ronald Chua
Q Supposing Y, after filing a petition for letters of administration, was named as administrator of A’s estate by the probate court because X, who was named executor by A and who was more qualified, did not know of the petition filed by Y and/or he did not know that he was named as such. What is the remedy of X? A File a motion to revoke in the same proceeding. Note however that if X had been notified, he would be bound by the order of the court appointing Y as such. ₱ Note that an appointment of an administrator of a decedent’s estate is not void because another person seeking appointment has a better right to such appointment. ₱ The acts of the person thus erroneously appointed as administrator is valid. Where letters of administration have been granted on the estate of a decedent to one not entitled to the appointment, the acts of such administrator are valid although the order appointing such person may be voidable in a direct proceeding instituted by those having a superior right. This rule rests upon the doctrine that in such cases the essential basis of jurisdiction exists, and the appointment of the wrong person is but an irregularity subjecting the order to direct attack, but not invalidation acts done in pursuance of the law in the course of administration by him who has been erroneously appointed. Q May a creditor be appointed administrator? A If the heirs of the debtor do not institute an estate proceeding to settle his estate and fails to apply for letters of administration, a creditor may institute said estate proceeding and apply for letters of administration so that his claim for money may be settled. NATIVIDAD I. VDA. DE ROXAS vs. CFI Judge POTENCIANO PECSON, MARIA ROXAS and PEDRO ROXAS G.R. No. L-2211 December 20, 1948 FACTS: Pablo M. Roxas died leaving properties in Bulacan. Maria and Pedro Roxas, sister and brother respectively of the deceased, filed a petition for the administration of the latter's estate. Maria Roxas was appointed special administratrix upon an ex-parte petition. Natividad Vda. de Roxas, widow of Pablo M. Roxas, filed a petition for the probate of an alleged will of her deceased husband, and for her appointment as executrix of his estate designated is said will. In said will the deceased bequeathed onehalf of his estate to his widow, Natividad, and the other half to Reynaldo Roxas, an adulterous child 9 years old of the decedent. Upon agreement of both parties, the intestate proceeding was dismissed and ordered closed by the court. Respondents opposed to the probate of the will. Nevertheless, Natividad was appointed, special administratrix and qualified as such over the objection of the respondents Maria and Pedro Roxas, who sought the appointment of Maria as such. The said respondents filed a motion for reconsideration of the order of the court appointing the petitioner as special administratrix, with an alternative prayer that Maria Roxas be appointed as special co-administratrix, which motion was not acted upon. After hearing, respondent judge rendered a decision denying the probate of the will presented by Natividad on the ground that the attesting witnesses did not sign their respective names in the presence of the testator, from which the petitioner has appealed, and the appeal is now pending. Maria and Pedro Roxas renewed their petition for the appointment of Maria Roxas as special administratrix or special co-administratrix. Respondent judge rendered his resolution appointing the petitioner Natividad I. Vda. de Roxas as special administratrix only of all the conjugal properties of the deceased, and Maria Roxas as special administratrix of all capital or properties belonging exclusively to the deceased Pablo M. Roxas. ISSUE/S: Whether the CFI judge acted in excess of its jurisdiction in appointing two special administrators. HELD: Respondent judge acted in excess of the court's jurisdiction in appointing two separate special administratices of the estate of the decedent: one of the conjugal or community property and another of the capital or exclusive property of the deceased Pablo M. Roxas. The administrator appointed to administer and liquidate the exclusive property of a deceased spouse shall also administer, liquidate and distribute the community property, because the estate of a deceased spouse which is to be settled, that is, administered, liquidated and distributed, consists not only of the exclusive properties of the decedent, but also of one-half of the assets of the conjugal partnership, if any, which may pertain to the deceased, as determined after the liquidation thereof in accordance with the provisions of articles 1421 to 1424 of the Civil Code. There is absolutely no reason for appointing two separate administrators, specially if the estate to be settled is that of a deceased husband as in the present case. If two separate administrators are appointed as done in the present case, in every action which one of them may institute to recover properties or credit of the deceased, the defendant may raise the question or set up the defense that the plaintiff has no cause of action, because the property or credit in issue belongs to the class which is being administered by the other administrator, which can not be done if the administrator of the entire estate is only one. As under the law only one general administrator may be appointed to administer, liquidate and distribute the estate of a deceased spouse, it clearly follows that only one special administrator may be appointed to administer temporarily said estate, because a special administrator is but a temporary administrator who is appointed to act in lieu of the general administrator. The appointment of a special administrator is of the discretion of the court, which must sound, that is, not whimsical or contrary to reason, justice or equity. It is well settled that the statutory provisions as to the prior or preferred right of certain persons to the appointment of

RULE 80 SPECIAL ADMINISTRATOR Sec. 1. Appointment of special administrator.- When there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed. Q What are Special Administrators? A Special Administrators are officers of the court subject to the supervision and control of the probate court and are expected to work in the best interest of the entire estate, its smooth administration and its earliest settlement. Q When may a special administrator be appointed? A There are two instances when a special administrator may be appointed:

1. 2.

when there is delay in the appointment of the regular administrator (Section 1, Rule 80; Fule vs. CA) when the executor or administrator has a claim against the estate he represents. The special administrator administers only the portion over which there is such a claim (Section 8, Rule 86; Relucio vs. San Jose)

Q May 2 or more special administrators be appointed at the same time?

A

Under the law, only one general administrator may be appointed to administer, liquidate and distribute the estate of the decedent. It clearly follows that one special administrator may be appointed to administer temporarily said estate because a special administrator is but a temporary administrator who is appointed in lieu of the general administrator. (Roxas vs. Pecson)

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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Ronald Chua
administrator under section 1, Rule 81, as well as the statutory provisions as to causes for removal of an executor or administrator under section 2, Rule 83, do not apply to the selection or removal of special administrator. Q Is the preference accorded by Section 6 of Rule 78 in the appointment of an administrator applicable to the appointment of a special administrator? aforementioned provision of the Rules of Court to the surviving spouse refers to the appoint of a regular administrator or administratrix, not to that of a special administrator, and that the order appointing the latter lies within the discretion of the probate court, and is not appealable. Q What then is the basis for the appointment of a special administrator? A As the law does not say who shall be appointed as special administrator and the qualifications the appointee must have, the judge has discretion in the selection of the person to be appointed, discretion which must be sound that is not whimsical or contrary to reason, justice or equity. Q May the judge nevertheless, use the preference in the appointment of regular administrator as basis for the appointment of a special administrator? A The fact that the judge is granted the discretion does not authorize him to become partial or to make his personal dislikes and likes prevail over his passions to rule his judgment and there is no reason why the same fundamental and legal principles governing the choice of a regular administrator should not be taken into account in the appointment of a special administrator. After all, the consideration that overrides all others in this respect is the beneficial interest of the appointee in the estate of the decedent. Q Is the order appointing a special administrator appealable? A The order appointing a special administrator is an INTERLOCUTORY ORDER and NOT APPEALABLE.

A

Discretionary. It may not be amiss to note that the preference accorded by the aforementioned provision of the Rules of Court to the surviving spouse refers to the appoint of a regular administrator or administratrix, not to that of a special administrator, and that the order appointing the latter lies within the discretion of the probate court, and is not appealable. (Pijuan vs. Vda. De Gurrea) TESTATE ESTATE OF THE DECEASED CARLOS GURREA Y MONASTERIO. MARCELO PIJUAN vs. MANUELA RUIZ VDA. DE GURREA, G.R. No. L-21917 November 29, 1966

FACTS: Manuela Ruiz and Carlos Gurrea were married in Spain, where they lived together until 1945, when he abandoned her and came, with their son Teodoro, to the Philippines. Here he lived maritally with Rizalina Perez by whom he had 2 children. Having been informed by her son Teodoro, years later, that his father was residing in Pontevedra, Negros Occidental, Manuela came to the Philippines; but, Carlos Gurrea refused to admit her to his residence in said municipality. Hence, she stayed with their son, Teodoro, in Bacolod City. Days later, she instituted, against Carlos Gurrea, a civil case for support and the annulment of some alleged donations of conjugal property, in favor of his common-law wife, Rizalina. In due course, said court issued an order granting Mrs. Gurrea a monthly alimony, pendente lite, of P2,000.00 which was later reduced to P1,000.00. Carlos Gurrea died 2 years after, leaving a document purporting to be his last will and testament, in which he named Marcelo Pijuan as executor thereof and disinherited Mrs. Gurrea and their son, Teodoro. Soon thereafter, Pijuan instituted Special Proceedings in the CFI of Negros Occidental, for the probate of said will. Thereafter Pijuan was, upon his ex parte motion, appointed special administrator of the estate, without bond. Oppositions to the probate of the will were filed by Mrs. Gurrea, her son, Teodoro, and one Pilar Gurrea, as an alleged illegitimate daughter of the deceased. Mrs. Gurrea filed in the special proceedings a motion alleging that the aforementioned alimony, pendente lite, of P1,000 a month, had been suspended upon the death of Carlos Gurrea, and praying that the Special Administrator be ordered to continue paying it pending the final determination of the case. This motion having been denied, Mrs. Gurrea moved for a reconsideration thereof. She also moved for her appointment as administratrix of the estate of the deceased. Motion for reconsideration was denied. The lower court, likewise, denied, for the time being, the motion of Mrs. Gurrea for her appointment as administratrix, in view of the provision of the will of the deceased designating another person as executor thereof. Hence this appeal from said orders. ISSUE/S: Whether Manuela should have been appointed administratrix HELD: Mrs. Gurrea contends that as widow of the deceased, she has a right of preference under Section 6 of Rule 78 of the Revised Rules of Court. However, this preference exists "if no executor is named in the will or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate." None of these conditions obtains, however, in the case at bar. The deceased Carlos Gurrea has left a document purporting to be his will, seemingly, is still pending probate. So, it cannot be said, as yet, that he has died intestate. Again, said document names Marcelo Pijuan as executor thereof, and it is not claimed that he is incompetent therefor. What is more, he has not only not refused the trust, but, has, also, expressly accepted it, by applying for his appointment as executor, and, upon his appointment as special administrator, has assumed the duties thereof. It may not be amiss to note that the preference accorded by the
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Q What is the remedy of a party aggrieved by an order granting a special administrator? A A PETITION FOR CERTIORARI based on grave abuse of discretion. But such will not hasten the settlement of the estate. Q May the court moto proprio appoint a special administrator? A It seems that a special administrator may be appointed upon 1. the application of any interested parties; as well as 2. by the court upon its own motion without notice to the parties. Regular Administrator Order of Appointment is FINAL and is APPEALABLE One of the obligations is to pay the debts of the estate Appointed when decedent died intestate or did not appoint an executor in the will or will was disallowed Special Administrator Order of appointment is INTELOCUTORY and is NOT APPEALABLE Cannot pay the debts of the estate Appointed when there is delay in granting letters testamentary or administration or when the executor is a claimant of the estate

Sec. 2. Powers and duties of special administrator. - Such special administrator shall take possession and charge of goods, chattels, rights, credits, and estate of the deceased and preserve the same for the executor or administrator afterwards appointed, and for that purpose may commence and maintain suits as administrator. He may sell only such perishable and other property as the court orders sold. A special administrator shall not be liable to pay any debts of the deceased unless so ordered by the court.

• Special administrators are officers of the court and while they may have respective interests to protect, they are officers of the Court subject to the supervision and control of the Probate Court and are expected to work for the best interest of the entire estate, its smooth administration, and its earliest settlement.
Q What are the powers and duties of a special administrator? A The following are the powers and duties of a special administrator:

Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Ronald Chua
1. take possession and charge of the goods, chattels, rights, credits and estate of the deceased 2. preserve the goods, etc. of the deceased for the executor or administrator afterwards appointed 3. commence and maintain suits as administrator 4. sell such perishable and other properties AS THE COURT ORDERS SOLD 5. prepare and submit an inventory of the estate 6. render an accounting of administration 7. Pay debts ONLY as may be ordered by the court. Sec. 1. Bond to be given before issuance of letters; Amount; Conditions. - Before an executor or administrator enters upon the execution of his trust, and letters testamentary or of administration issue, he shall give a bond, in such sum as the court directs, conditioned as follows: (a) To make and return to the court, within three (3) months, a true and complete inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of any other person for him; (b) To administer according to these rules, and, if an executor, according to the will of the testator, all goods, chattels, rights, credits, and estate which shall at any time come to his possession or to the possession of any other person for him, and from the proceeds to pay and discharge all debts, legacies, and charges on the same, or such dividends thereon as shall be decreed by the court; (c) To render a true and just account of his administration to the court within one (1) year, and at any other time when required by the court; (d) To perform all orders of the court by him to be performed. Q Why is bond required before an executor or administrator enters upon the execution of his trust? A The bond posted by administrators and executors is intended as an indemnity to the creditors, heirs and the estate. The court shall fix the amount stated thereof and hold it accountable for breach of duty on the part of the administrator or executor. In other words, the bond is answerable for any failure on the part of the administrator or executor to fulfill any conditions imposed upon him in the execution of his trust. Q What is the effect of the failure to give bond? A While the failure of the duly appointed executor or administrator to give the required bond may prevent the granting of letters testamentary or of administration in most jurisdictions, such failure does not render void the letters of administration granted prior to the filing of the bond. Said letters are for this reason, only irregular and voidable and therefore, are not subject to collateral attack, but merely give ground for appeal. The administration of an estate is considered suspended until the person appointed executor or administrator files the proper bond. Q Is the executor or administrator liable for all losses suffered by the estate under his administration? A The standard of responsibility of the executor or administrator is best measured as in essence the responsibility of the bailee. Like any bailee, he must pursue his discretion honestly and in good faith, or he will become personally liable to those who are interested in the estate for waste, conversion or embezzlement. But where an administrator, entrusted with the carrying on of an estate, acts in good faith and in accordance with the usual rules and methods obtaining in such business; he will not be held liable for losses incurred. The law does not impose upon the administrator or executor a high degree of care in the administration of the estate, but it does not impose upon him ordinary and usual care, for the want of which he is personally liable.

• While the ROC does not fix a period within which the special administrators should submit an inventory of the estate, it cannot be denied that such duty has to be performed within a reasonable period, if not as soon as practicable, in order to preserve the estate and protect the heirs of the deceased.
Q May the special administrator be sued by a creditor for the payment of a debt of the deceased? A The Special Administrator cannot be sued by a creditor for the payment of a debt of the deceased and such suit must await the appointment of a regular administrator. However, the Special Administrator may be made a defendant in a suit against the estate where the creditor would be prejudiced by the adverse effects of the running of the statue of limitations against them if the appointment is delayed. Q If you are a creditor, what is your remedy if you already have a decision in your favor? A As a creditor with a decision in my favor for the payment of my credit, I will apply for an order directing the special administrator to pay the credit. Sec. 3. When powers of special administrator cease; Transfer of effects; Pending suits. - When letters testamentary or of administration are granted on the estate of the deceased, the powers of the special administrator shall cease, and he shall forthwith deliver to the executor or administrator the goods, chattels, money, and estate of the deceased in his hands. The executor or administrator may prosecute to final judgment suits commenced by such special administrator. Q Are the grounds for removal of the regular administrator applicable to the special administrator?

A

The statutory provisions as to causes for removal of an executor or administrator DO NOT APPLY to removal of a special administrator. The appointment and removal of a special administrator lies entirely in the sound discretion of the court. The sufficiency of any ground for removal should thus be determined by the court whose sensibilities are in the first place, affected by an act in disregard of the rules or orders of the court.

Q What is the nature of the office of the special administrator? A Since a special administrator is assigned by the court, he is an officer of the court. Q When does the power of a Special Administrator Cease? A After the questions causing the delay are resolved and letters are granted to regular executor or administrator

• It is possible for the executor or administrator whose appointment is challenged by appeal to be appointed also as the special administrator pending such appeal. There is no hard in appointing the same person as special administrator because there is a vast difference between the powers and duties of the two positions.
RULE 81 BONDS OF EXECUTORS AND ADMINISTRATORS
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When Filed: Before an executor or administrator enters upon the execution of his trust. Amount: To be fixed by the court.
Q What are the duties or the conditions imposed on the executor or administrator? A The following are the duties or conditions imposed on the executor or administrator: 1. To make return to the court within 3 months, a true and complete inventory of all goods, chattels, rights and estate of the deceased, which shall come to his possession or knowledge or the possession of any other person for him in accordance

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to September 30. 1921. the statute grants no power to an administrator to borrow money upon a mortgage of the real estate of the decedent. His widow.R. Liquidation means determination of all the assets of the estate and payment of all the debts and expenses. As long as the probate court retains jurisdiction of the estate.783. One of the grounds upon which the said court ruled in favor of Tan with respect to the first cause of action. conversion.000 under the administration of Chiong Lee. the probate court may pass upon title thereto. legatees and devisees. G. Tan now filed an action to recover from Chiong Lee. 3. entrusted with the carrying on of an estate. But where an administrator. ET AL.R. alleging that Francisco Caponong owed plaintiffs P12. Go Chiong Lee's status with reference to the estate was later changed to that of administrator. legacies and charges on the estate. he is however accountable for a true and complete inventory of all the properties which has come to his knowledge. Cebu. to perform all orders of the court HELD: NO. 13910 September 17.74. for waste. YES. The administratrix leased the hacienda known as "Coronacion" to Hilario Zayco for a term of years. or embezzlement. and 4. Go Chiong Lee was his encargado. may the executor or administrator bind the estate by borrowing money or mortgaging any of the properties of the estate to secure a debt or to obtain a loan? Administrator’s Bond – Statutory Bond • Conditions prescribed by statute forms part of bond agreement • Terms and effectivity of bond does not depend on payment of premium and does not expire until the administration is closed. to July 31. to those who are interested in the estate. owing the plaintiffs a sum of money which was then less than the amount allowed by the commissioners. Abada) SOCIEDAD DE LIZARRAGA HERMANOS vs. the plaintiffs herein filed a suit in the CFI of Occidental Negros against Felicisima Abada personally and as administratrix of the estate of Francisco Caponong. The first was to recover the amount lost during his administration and the second for the recovery of the 850 sacks of courn which Lee allegedly failed to inventory. or he will become personally liable. Go Bung Kiu died in China. is not controverted. The lower court found for Tan in the 2 causes of action. (luzon surety vs. After Chiong Lee was relieved. An efficient administration should. an accounting was done on the estate by the private accountant and based on these investigation. is the failure of Lee to render the monthly reports made a condition of his appointment as administrator. TIO LIOK. one of the defendants.” That the losses sustained by the estate resulted from the risk necessarily attending the operation of the two stores. The policy of these rules is to close up the estate as promptly and as economically as possible. UNLESS specially authorized by will. such an act is foreign to the policy and purpose of administration. SC found that “the personal responsibility of the former administrator and the sureties on his bond for losses incurred by the estate during his administration. 1920. and plaintiffs presented their claim which was allowed by the commissioners in the sum of P12. 9 days after. 1919 FACTS: Francisco Caponong died. and the lease was transferred to Alvarez by Zayco. The court granted the administrator the authority to which he asked on the condition that he makes monthly reports to the court. Q What must the inventory to be made by the executor or administrator contain? A It must be observed that the inventory to be made and returned by an executor or administrator must contain the following statements: 1.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . FELICISIMA ABADA. with Tio Liok. is a much more reasonable assumption. in accordance with the will of the testator 2.74. Quebrar). but afterwards she married Vicente Alvarez. though such determination is not conclusive and is subject to the final decision in a separate action between the parties. 21969 September 25. which aims to close up. The standard of responsibility of the administrator is best measured as in essence the responsibility of a bailee. AND CHANGCO and MANUEL GO TIANUY. all the properties of the deceased which have come to his possession 2. Like any bailee. he will not be held liable for losses incurred. acts in good faith and in accordance with the usual rules and methods obtaining in such business. was appointed administratrix of the estate. Nearly 7 years after the death of Caponong. one in the City of Cebu and the other in the municipality of Toledo. Another bond also in the amount of P30. but also in a prompt payment of all the debts of the deceased and expenses of administration with the view to an early distribution of the remainder amount the persons are entitled thereto. and letters of administration were issued in his favor. GO CHIONG LEE.000 and with the same sureties was filed by the administrator. had been receiving from the plaintiffs money and effects from 1908 to 1912 which money and effects Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Q In the determination of the estate. ISSUE/S: Whether Chiong Lee could be held liable for the losses suffered by the estate 53 | A Neither the executors or administrators may bind the estate when they borrow money or mortgage any of the properties of the estate to secure a debt or to obtain a loan. based on the four cause of action. commissioners to appraise the estate and to pass on the claims against the estate were duly appointed. 1920. and that Felicisima Abada in her own name and as administratrix. No. 1924 FACTS: During the lifetime of the deceased Go Bung Kiu. Ang Changco. During this period. On the same date. (Sociedad de Lizzaraga Hermanos vs. and Manuel Go Tianuy as sureties on his bond in the sum of P30. the bond contemplates a continuing liability. to pay and discharge all debts. not to continue an estate. Go Chiong Lee continued to discharge his duties administrator until he was relieved by Maximina Tan. another report covering the period from October 1. or such dividends thereon as shall be declared by the court from the proceeds of the administration. he must pursue his discretion honestly and in good faith. (Tan vs. Indeed. to render a true and just account of his administration within 1 year and at any other time when required by the court. administratrix of the property of the deceased Go Bung Kiu vs. therefore. Go Chiong Lee filed a motion in which he prayed that he be allowed to operate 2 stores belonging to the estate. it was found that the estate suffered a loss of over ₱19. has not been proved. 1920. Felicisima Abada. Q What is the purpose of administration? A The purpose of administration is the liquidation of the estate and distribution of the residue among the heirs. No. G. Ronald Chua with the Rules of Court and in case of an executor. and still a third and final report. Go Chiong Lee was appointed special administrator of the estate. Go Chiong Lee) MAXIMINA TAN.000. The administrator is accountable on his bond along with the sureties for a good and true inventory of all the property of the estate which comes into his possession or of which he has knowledge Q Who determines where certain properties should or should not be included in the inventory? A Though questions of title to real property can not be determined in in/testate proceedings. consist not only in taking charge of the assets in a manner which is safe and productive. all the properties as may have come to his knowledge Although he is not chargeable with the administration of the estate which has not come to his possession.783. the administrator filed one report covering the period from May 26. it is now established that for the purpose of determining whether a given property should be included in the inventory.

The compromise was approved by the court as well as the mortgage.R. is not controverted. Thus. and alleges that the balance was due by her personally. 1930 FACTS: Charles C. deceased.21.437. A personal judgment was also given to plaintiffs against defendants for ₱79.J. Rear) In the matter of the Estate of Charles C. were negligent in the conservation and care of the property.01. REAR. the account of the defendant showed a balance in favor of plaintiffs of P62.437.78 as administratrix.555. which was to be paid with 10% interest in 7 equal annual installments. And that due to drought and poor crops of the farm and after deducting for the sugar delivered. the parties. as provided in Section 16. The normal duty of the personal representative in reference to such business is limited to winding it up.J. filed an amended answer in which they allege. and extended the receivership to all the mortgaged property. and they asked the court to appoint a receiver for the property that was mortgaged. that defendants. that of this amount they were informed the defendant recognized as due from the estate only "about P14. the public sale took place.administratrix the sum of ₱8. The expense of the administration should be those necessary for the management of the property for protecting it against destruction or deterioration and possibly for the production of fruits. There can be no legal excuse for delaying the closure of administration to more than 2 years and a half.555. with a view of closing the administration. Coming now to the present action. and prayed the court to dismiss the action. not to continue an estate Although the mortgage was made by the administrator approved by the CFI. which was done. which was also signed by Wilson. and various animals. that it had been agreed by Francisco Caponong that the "amounts" taken should draw interest at the rate of 12% from the date of each.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . and if not sufficient to pay the debts. which aims to close up. a petition was made for authority to sell. and for judgment for P90. and the defendants agreed to secure judicial approval of the settlement. the CFI largely sustained the defendant’s claim and ruled that the plaintiffs pay them certain damages. The court granted the attachment order and the provincial sheriff attached one parcel of land. L-31860 October 16. under sealed proposal. However. and they may even adopt harsher measures. ET AL. Felicisima Abada. and after due notice. Mannion for P7. Plaintiffs later filed a motion in court alleging that the property mortgaged to secure their debt was not sufficient to secure the debt.appellee vs. Section 15. with the intention of prejudicing the interest of the plaintiffs. administrator.970. It was agreed upon by the parties that "Francisco Caponong's estate was indebted to the plaintiffs.. T. Rear was murdered by some Moros on his plantation in an isolated place in Cotabato. Judgment was given to the plaintiffs to recover from the defendant. or at their election take all the profits which the representative has made by such unauthorized use of the funds of the estate. and on all the property belonging exclusively to Felicisima Abada. The court granted this motion. is the administrator or executor authorized to continue the business in which the decedent was engaged at the time of his death? A An executor or administrator ordinarily has no power to continue the business in which the decedent was engaged at the time of his death. and this is true although he acts in the utmost good faith and believes that he is proceeding for the best interests of the estate. that the compromise agreement and the mortgage executed in conformity therewith made a part of the complaint. the rule being that the persons beneficially interested in the estate may either hold the representative liable for the amount so used with interest. Rear. of which the commissioners filed an inventory and report. the guardian. administratrix.15 with interest at 12% and P1. They also asked for judgment for P62.600. such an act is foreign to the policy and purpose of administration.” That the statute grants no power to an administrator to borrow money upon a mortgage of the real estate of the decedent.611. Defendant admits she owed P8. were obtained through fraud and false representation and thus be declared null and void and the unwarranted appointment of a receiver for property already in custody of the court. Later. The penalty for continuing a business of the decedent without authority is the imposition of a personal liability on the executor or administrator so doing for all debts of the business. The commisioners made and filed a report of claims against the estate. in the sum of P68. they prayed for an attachment on property of defendants not to exceed P20.000 in value. Ronald Chua were used by the defendant in "the expense of cultivation and the exploitation of the Hacienda 'Coronacion. the growing crops. So great a breach of trust is it for the representative to engage in business with the funds of the estate that the law charges him with all the losses thereby incurred without on the other hand allowing him to receive the benefit of any profits that he may make. the mortgage given was not recorded in the registry of property up to time of the institution of this suit. No. Based on these. J. certain products of the soil. G.' "and that defendant had delivered to plaintiffs the sugar produced until the last crop which she refused to deliver to them. still this approval cannot render valid the void acts of an administrator. Q What is the effect of the executor or administrator’s failure to close up the estate within the period prescribed by the rules? A All courts should exert themselves to close up estates within twelve months from the time they are presented. among others. but by reasons of the fact that it was claimed and alleged that the administrator did not have any funds to pay the court ordered the administrator to sell a portion of the property. Rule 88. ISSUE/S: Whether the administratrix had the power to borrow money upon a mortgage of the real estate of the deceased? HELD: NO. Q In the administration of the estate. through the administratrix. the defendants agreed to give plaintiffs a first mortgage on all the property of Francisco Caponong. and even where the beneficiaries are infants the court cannot authorize the administrator to carry on the trade of the decedent. (Sociedad de Lizzaraga Hermanos vs. The court granted this petition. The defendants.78 with interest. all the property of the estate. Rule 88 provides that debts and legacies of the deceased should be paid within 1 year which may be extended to 2 years if circumstances so require. The defendants also agreed to mortgage the carabaos then on the hacienda to plaintiffs.500 for attorney's fee.000" which however had not been paid. Nevertheless. as to all the property attached. Wilson qualified as special administrator of the estate. Abada) The harsher measure may be the removal of the executor or administrator in accordance with Section 2 Rule 82 or his liability for damages under Section 5. The attachment was dissolved and the receiver discharged and was ordered to return the property to the defendants. and that if this amount should not be paid that the mortgaged property be sold. and Januario Granada.15. including the guardian of the minors. Indeed. the property of the estate was appraised at P20. and alleged that the estate of Francisco Caponong did not owe plaintiffs anything. Wilson filed his final account which later was Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . (Wilson vs. M. Rule 85. They also alleged that defendants were about to transfer their property not mortgaged. The sum extended by 54 | an administrator for the extensive administration of the estates of the decedent cannot be considered “expenses of administration. 383. With the consent of the heirs.49 with interest. and the property was sold to Wm." and to secure this debt.800. and they may refuse to allow any compensation to executors and administrators who do not actively labor to that end. Q How should the administration of estates be settled? A In this connection. Wilson submitted a report covering his administration to that date. WILSON. that the property levied on under the attachment be sold. J. presented a motion in court stating that they had made an amicable settlement of the litigation. except the growing sugar cane. While the guardian of the minor children of Francisco Caponong denied the claim under oath. the plaintiffs allege that defendants failed to pay the first 2 installments and that they refused to sign the agreement mortgaging the carabaos with the object and intent of reducing the security of plaintiffs. the defendants claiming for more damages and the plaintiffs alleging errors of the trial court. Both parties appealed. which was approved and later set aside on motion of the heirs of the deceased.

Bonds of joint executors and administrators. and that he will truly account for such as are received by him when required by the court. it does not impose upon him the ordinary and usual care. Sec. • RULE 82 REVOCATION OF ADMINISTRATION. is the surety entitled to notice? A The surety is not entitled to notice of the proceeding against the administrator but he may be allowed to intervene if he asks for leave to do so in due time. conversion or embezzlement.42. Sec. or to such other person as may be authorized to receive them. (2) all loans or advances made to the estate were contrary to law and not legal charges against the estate since there was no authority granted by the court. Q May the testator exempt an executor from the requirement of posting a bond by providing for such in his will? A Even if the testator has provided in his will that his executor serve without bond. and the administrator shall forthwith surrender the letters to the court.22. )5 An exception would be when. based on the circumstances. .377. When further bond required. Had Wilson applied to the court for an order to sell the personal property of the estate. or he will become personally liable to those who are interested in the estate for waste. without any reasonable or unnecessary delay. and that in the very nature of things. 3.A special administrator before entering upon the duties of his trust shall give a bond. the total amount of ₱5.like manner. for want of which he is personally liable.655. and render his account within such time as the court directs. Administration revoked if will discovered. Even in such cases the personal representatives are not. we are also disposed to allow those claims. in such sum as the court directs. in order to settle an estate the personal representative may.03 was to be deducted for the ₱1. DEATH. he will make and return a true inventory of the estate of the deceased which comes to his possession or knowledge. but the court may require of the executor a further bond in case a change in his circumstances. Q When may letters of administration issued by a court be revoked? A The standard of responsibility of the administrator is best measured as that of a bailee. Although the expense account of the administrator and the claims of the commissioners are somewhat high. ISSUE/S: Whether Wilson properly performed his duties as special administrator HELD: NO. Ronald Chua amended. )3 Since Wilson was appointed and qualified as administrator.600 received from Wilson was to pay the heirs the balance of ₱3. or a joint bond from all. credits. we are disposed to be more or less lenient. spent and which he is unable to repay. the letters of administration shall be revoked and all powers thereunder cease.04 for the costs of administration.680. it appeared that at the time of Rear’s death.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty .45. the court approved the account as filed. he will truly account for such as are received by him when required by the court. The net result of this was that all of the property of the estate was consumed. he could not give the business of the estate his personal attention. an administrator does not have any legal right to continue the operation of the business in which the deceased was engaged. Wilson never made any report. Without a specific showing or an order of the court. he may be allowed by the court to give bond in such sum and with such surety as the court approves conditioned only to pay the debts of the testator. )4 Even though the law does not impose upon the administrator a high degree of care in the administration of the estate. leaving a deficit against the estate of ₱1. Q What are the conditions of a special administrator’s bond? A The following are the conditions of a special administrator’s bond: 1. Proceedings thereupon. it appeared that Wilson continued the operation of the plantation and the employment of Fleming as manager with a salary of ₱200 a month and a large number of men.767. filed any account for or obtain a court order of any nature. and (4) Wilson was neglectful. rights. Note: The bond is effective as long as the court has jurisdiction over the proceedings. and will deliver the same to the person appointed executor or administrator. or for other sufficient cause. and after a hearing. Q What is the degree of care required in the administration of decedent’s estate? administrator. Heirs of Gutierrez. or with only his individual bond. the court may require further bond from said executor to answer for breaches in his administration. in good faith. The attention of the court was called for the first time when the commissioners filed a claim for their fees. Sec. Proceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided. January 30. 1962) Q In the proceeding against the bond. 3. . (3) the court erred in admitting Exhibits D.257.919. L-16959. the law imposed upon him legal duties and obligations. )2 From the final account. the court may still require him to file a bond conditioned only to pay the debts of the testator. chattels. However. Bond of special administrator.54 for claims.58 ₱1. in some cases . however. (Montemayor vs. or to eat up and absorb the assets of the estate in the payment of operating expenses. E and F.If the testator in his will directs that the executor serve without bond.839. conditioned that he will make and return a true inventory of the goods. Q May the bond be bound for the return of the money which the administrator spent in good faith and which he is unable to repay? A A surety on an administrator’s bond is bound only for the faithful administration of the estate and not for the return of money which the 55 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . and to allow him the actual operating expenses of the plantation for the first eight months of his appointment amounting to P2.809.25 received from the sale of personal property and the ₱7. 1. AND REMOVAL OF EXECUTORS AND ADMINISTRATORS Sec. 2. and estate of the deceased which come to his possession or knowledge. interests and taxes and ₱1. .When two or more persons are appointed executors or administrators the court may take a separate bond from each. entitled to embark in the business more of the testator's property than was employed in it at his death. )1 From 1925-1927. imprudent and wasteful. So great a breach of trust is it for the representative to engage in business with the funds of the estate that the law charges him with all the losses thereby incurred without on the other hand allowing him to receive the benefit of any profits that he may make. marshal its assets and close the estate. Bond of executor where directed in will. The heirs claimed that (1) the special administrator disbursements far in excess of the amount required to preserve the estate. with the conditions named in the last preceding section. 2. he will deliver the same to the persons appointed executor or administrator or to such other person as may be authorized to receive them. and thereafter.422. the total amount of claims against the estate was only ₱3. . be permitted to continue a business for a reasonable time. his will is proved and allowed by the court. however. he must pursue his discretion honestly and in good faith. there would have been a balance of ₱2. RESIGNATION.69. )6 Considering the fact that Wilson's home and place of business was 300 kilometers from the plantation (it was in Zamboanga). Like any bailee. lost or destroyed.If after letters of administration have been granted on the estate of a decedent as if he had died intestate. 4. among which was to handle the estate in a business. to which the heirs made numerous and specific objections.

or to perform an order or judgment of the court. (Gustillo vs. 3. and 4. the proved and allowed by the court law provides 6 grounds as provided for in Section 2. Ronald Chua A The following are the circumstances when letters of administration issued by a court can be revoked: 1. administration may be granted to any suitable person. . 5. Once the court finds the appointee to the position not entitled to such confidence. 2. it is justified in withdrawing the appointment and in giving no valid efficacy thereto. Court may remove or accept resignation of executor or administrator. all powers of administration shall cease. in view of Section 1. Q How would you distinguish revocation from removal? A revocation vs. such letters of administration may be revoked by the probate court 2. self. (Cobarrubias vs. Dizon) The removal of an administrator lies within the sound discretion of the court appointing him. whose sensibilities are. 2. Rule 72 Q What are the grounds for removal or compelling the resignation of an executor or administrator? A The executor or administrator may be removed or compelled to resign when s/he 1. does not. proceedings for the issuance of letters testamentary or of administration under the will shall be had Other Valid Grounds for Removal: (7) Adverse interest of an administrator to that of the estate (8) Physical inability and consequent unsuitability to manage the estate (9) False representation by an administrator in securing his appointment Note: The Order of Removal is appealable. in one case. The 2nd account was disapproved and he was ordered to file an amended account within 30 days. irrelevant and/or mere photostatic copies of supposed originals which were not identified nor produced in court. Sec. Q How soon must the executor or administrator render his account? Duty of Administrator upon Revocation of the Letters (1) Surrender the letters to the court. Degree of Diligence Required • An administrator is required to exercise reasonable diligence and act in entire good faith in the performance of that trust. 1966. Q Does the mere discovery of a document purporting to be a will ipso facto authorize the revocation of letter of administration? A NO.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . absconds becomes insane or otherwise incapable or unsuitable to discharge the trust • When letters revoked and powers cease: When the decedent’s will is allowed and proved by the court after the issuance of letters of administration. or a duty expressly provided by these rules. Despite an extension of 10 days after the lapse of the 30. Rule 82 are the following: 1. C filed a motion for the removal of M on the ground that he is incompetent and negligent in the management of the 5 haciendas under his charge. neglects to render his account. This and some irregularities found in his accounting were held to be sufficient grounds for his removal since the court was convinced that such person was unfit to be administrator since he had not in fact administered the estate with due regard to the right of other persons in interest. Rule 82 ipso facto nullify the letters already issued or even authorize their revocation until the will has been proved and allowed. If there is no remaining executor or administrator. Rule 85. M filed a motion objecting to the admission in evidence of the exhibits presented by C on the ground that the same were heresay. neglects to settle the estate according to these rules. the court issued an order Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . The sufficiency of any ground for removal should thus be determined by said court. subsequently. or becomes insane. neglects to perform an order or judgment of the court. when a newly discovered will has been admitted to probate after the issuance of letters of administration. and he filed the old account without change. the court may remove him. “Every executor or administrator shall render an account of his administration within one (1) year from the time of receiving letters testamentary or of administration. or otherwise incapable or unsuitable to discharge the trust. When an executor or administrator dies. resignation. 1966. 3.serving. unless the court otherwise directs…” In connection with this. neglects to perform a duty expressly provided by these rules. or is removed the remaining executor or administrator may administer the trust alone. The grounds enumerated by this legal provision are not exclusive. he still failed to file the required amended account.If an executor or administrator neglects to render his account and settle the estate according to law. 6. affected by any act or omission on the part of the administrator not conformable to or in disregard of the rules or orders of the court Q Give an example wherein the removal of an administrator constitutes grave abuse of discretion A M was appointed by the probate court in a special proceeding as one of the administrators in the settlement of the estate of D. On January 30. in the first place. or (2) Render his account within such time as the court may direct. or. unless the court grants letters to someone to act with him. may permit him to resign. and his 2nd account after the next years. Rule 82 exclusive? A NO. 4. Sian) Q Are the grounds for removal or compelling resignation under Section 2. Rule 82? A The effects of such revocation are as provided for by Section 1. 56 | A Under Section 8. or absconds. where the appointment of an administrator was procured through false representations. Thus. an administrator filed his 1st account 2 years after his appointment as such. Proceedings upon death. Mere discovery of a document purporting to be a will and testament of the decedent after appointment of an administrator upon the assumption that the decedent died intestate.day period. and 2. resigns. the administrator shall forthwith surrender his letters to the court. removal REVOCATION REMOVAL Letters of administration are Removal of an executor or revoked when it is shown that they administrator should be or grounds should not have been issued or which have arisen after the letters were improperly issued due to were issued. C submitted certain exhibits in support of his motion to oust M on January 8. During the reception of the evidence conducted by the probate court. in its discretion. when letters of administration have been issued illegally or without jurisdiction. such letters of administration may be revoked. This is so because the position of administrator is one of confidence. or removal. the administrator shall render his account within such time as the court directs. • Q What are the effects of such revocation are as provided for by Section 1. the power of the court to revoke the appointment on that ground is beyond question. grounds existing before or at the time of the issuance Revocation arises when a will is In removing an administrator.

and seeks relief from. or absconds. whose sensibilities are. Q Can anyone be compelled to act as administrator? A The appointment of an administrator may be revoked by reason of his adverse interest to that of the estate and the interested parties which makes him unsuitable for the trust. )5 has failed to render an accounting in spite of orders of the court. The removal of an administrator lies within the discretion of the court appointing him. may permit him to resign. Ceniza. And in the case at bar. Degala invokes section 2 of Rule 83. Any interest which said attorney may have is exclusively personal to him. Ceniza) Note: The position of the administrator is one of confidence and when the court finds that the administrator is not entitled to such confidence. The probate court issued said order without giving M the opportunity to adduce evidence despite his explicit reservation that he be afforded the chance to introduce evidence in his behalf in the event of denial of his motion to dismiss and/or demurrer to evidence. The order of the probate court removing M is nullity because it was issued by the judge thereof without affording M the full benefit of a day in court. not being in any way a beneficiary under the alleged will of Placida Mina.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Q Why is being a hostile or adverse administrator a ground for removal as such? A The nature of the office of administration is fiduciary in nature. is the attorney for Umipig. Quintillan. Consequently. thus denying him of his cardinal right to due process. Whether the statement of accounts was filed on time and whether the same is complete and correct. we cannot hold that the respondent Judge gravely abused his discretion. or to perform an order or judgment of the court. Aguinaldo) SANTIAGO DEGALA vs. or becomes insane. is this a ground for removal? A NO. and as such. former administrator removed by the court on the ground of adverse interest. (Gonzales vs. the court may remove him. is question of fact to be determined by the respondent Judge after the reception of necessary evidence. it is justified in withdrawing the appointment and giving no valid efficacy thereto. Continuous conflicts and disputes arising between parties in the settlement proceedings which redound to the detriment of the properties under administration is sufficient ground for the removal of an administrator who has shown incompetence in the fulfillment of her duties which gave rise to the filing of inaccurate inventories and accounts. Umipig is not a stranger since he is representing his deceased father Crisanto as a trustee. in the first place. (Cobarrubias vs. affected by any act or omission on the part of the administrator not conformable to or in disregard of the rules or the order of the court. the petitioner Santiago Degala complains of. even without the reservation of M. as special administrator of the estate of Placida Mina G. or a duty expressly provided by these rules. which provides that "if an executor or administrator neglects to render his account and settle the estate according to law. in first place. No. in its discretion. Q At what point in time must one determine the unsuitableness of the administrator for his removal? A Unsuitableness must be determined as of the day the petition for his removal is filed. it was the bounded duty of the probate judge to schedule the presentation and reception of evidence before disposing of the case on the merits because only the movant C at that time had presented evidence. Ronald Chua removing M as administrator. )3 has failed to include in his inventory some properties belonging to the estate. ₱ But the mere fact that the former administrator was disqualified on the ground of adverse interest and such former administrator happens to be the attorney of the new administrator. it appears that he did so on January 28. Indeed. Q Is adverse interest a ground for removal? Valentin Umipig was appointed special administrator of the estate of the deceased Placida.R. and not to a willful omission. CENIZA and VALENTIN UMIPIG. L-1320 July 30. Q If the administrator was later found to be without the right to intervene in the settlement of the estate (no longer an interested party). the latter is not necessarily disqualified. the clerk of said court was commissioned to receive evidence which the oppositors. 1947. the failure or refusal of Judge Patricio C. Degala was claiming that Valentin Umipig )1 has an interest adverse to the estate under administration. appellate tribunals are disinclined to interfere with the action taken by a probate court in the matter of the removal of an executor or administrator unless positive error or grave abuse of discretion is shown. Ceniza) Conflict between the interest of the executor and the interest of the deceased is ground for removal or resignation of the former who has thereby become unsuitable to discharge the trust." ISSUE/S: Whether Degala’s claims have bases HELD: NO. utmost good faith is required. Dizon) -There must be evidence of an act or omission on the part of the administrator not conformable to or in disregard of the rules or orders of the court which it deems sufficient or substantial to warrant the removal of the administrator. CFI Judge PATRICIO C. (Degala vs. The mere fact that the duly appointed administrator was indebted to the decedent is not a ground for his removal. Q If it was subsequently discovered that the administrator was indebted to the decedent. (Degala vs. We cannot merely substitute our way of thinking for that of a lower court in matters under its discretionary power. whose sensibilities are. The failure to pay all taxes due from the estate may only be due to lack of funds. The fact that the administrator was later held to be without the right to intervene in the settlement of the estate as an heir is not a ground for his removal as such administrator since even a stranger can be appointed as such. But as long as one has accepted the appointment of administrator. In fact. absent any other circumstance indicative of bad faith or lack of integrity on his part. may have regarding the point. Just because Jesus Q. is this a ground for removal? A NO. The sufficiency of any ground for removal should be determined by said court. Any adverse interest which said attorney may have is exclusively personal to him. Whether Umipig failed to include in his inventory some properties belonging to the estate. Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . are matters addressed to the judgment and discretion of the respondent Judge. In original action for certiorari. to remove said special administrator. )2 is a stranger to the estate. such act constitutes grave abuse of discretion which dooms the order as a nullity. particularly in view of the circumstance that the alleged grounds for removal are not in fact weighty. )4 has failed to pay certain taxes due from the estate. Q Who determines the sufficiency of any of the grounds for removal? A The removal of an administrator or executor lies within the discretion of the court appointing him. in which the respondent Valentin Umipig can have nothing to do. the latter is necessarily disqualified on the same ground. The sufficiency of any ground for removal should thus be determined by said court. affected by any act or omission on the part of the administrator not conformable to or in disregard of the rules or the orders of the court. or. or otherwise incapable or unsuitable to discharge the trust. one of whom is the petitioner. in the order of the CFI. 1947 FACTS: 57 | A No one may be compelled to act as administrator in any proceedings. Regarding Umipig’s alleged failure to render an accounting.

he should at least file an inventory of the properties he had administered and render an accounting of his administration.Renewal of license to sell real estate. will be protected and held valid as if there had been no such revocation. further notice of hearing is no longer necessary. for a special administrator is appointed only where there is delay in the naming of the regular administrator or executor and only for the purpose of preserving the estate. resignation or removal. the administrator must make an inventory of the properties in his possession. Q What is the effect of the revocation of the letters testamentary or of administration or the resignation or removal of the executor or administrator? A The effect of the revocation of the letters testamentary or of administration or the resignation or removal of the executor or administrator is to terminate the authority of the executor or testator. 4. . Q What are the steps necessary to enable an administrator to resign? A The following are the steps necessary to enable an administrator to resign: 1. resignation. Acts before revocation. But he must secure authority from the court to continue these negotiations. But the lawful acts of the executor or administrator done in good faith prior to such. the person named executor by the will need not necessarily be made the special administrator so as to effectuate the desire of the testator. Q Must this new administrator secure another authority from the court? A YES. to prosecute and defend actions commenced by or against the former executor or administrator. resignation. Enriquez) Q In case of the removal or resignation of the executor or administrator and there is no remaining executor or administrator. administration may be granted to any suitable person. to wit: 1. in accordance with the wishes of the testator. Furthermore. 3.The lawful acts an executor or administrator before the revocation of his letters testamentary or of administration. such as contracting with other persons as administrator. the same must be renewed in favor of the new executor or administrator. The statutory provision as to the causes for removal of an executor or regular administrator enumerated under Section 2. The nomination in the will acquires imperative nature only after the will is admitted to probate. shall have the like powers to collect and settle the estate not administered that the former executor or administrator had. to have like power to collect and settle the estate not administered that the former executor or administrator had. must his resignation be accepted by the court? A The resigning administrator must get the approval of the court. assuming the administrator is removed. unless a new co.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty .g. Q What is the effect when one administrator is removed in cases where there are two administrators of the estate? A The remaining administrator becomes the administrator of the whole estate. or removal of a former executor or administrator. to have execution on judgments recovered in the name of such former execution or administrator ₱ However. Q Must there be a hearing? A NO hearing is required if the new administrator merely continues the acts of administration. Q If the administrator resigns. or before his resignation or removal. resignation. (Ledesma vs. does not apply to the removal of a special administrator. Sec. Q As soon as an administrator is removed. Q What must the administrator do upon resignation? A He must render an accounting. the probate court is empowered merely to name a temporary administrator pending the appointment of a new administrator after due hearing. of the produce. Rule 82 provides that if there is no remaining executor or administrator. 58 | Note: The order of removal is appealable. Ronald Chua qualified as such. or removal of the former executor or administrator. fruits and income of the properties under administration and then ask the court that he be relieved of his duties. Q What is the operative act to make effectual the resignation of the administrator? A The resignation must first be accepted by the court. Sec. what is the right of the new administrator to continue the transaction (e. The person to whom letters testamentary or of administration are granted after the revocation of former letters. 2. An authority granted by the court to the former executor or administrator for the sale or mortgage of real estate may be renewed in favor of such person without further notice or hearing. Powers of new executor or administrator. such cannot be used to justify the institution of an administrator even without a hearing. and may prosecute or defend actions commenced by or against the former executor or administrator. or removal to be valid. PROVISION FOR SUPPORT OF FAMILY Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Q What does Section 4. The abovecited provision evidently envisions a situation where after such removal. Rule 82 provides for the powers of a new administrator or executor who has been appointed as such due to the revocation of former letter or the death. particularly. and 3. before a new executor or administrator may exercise the power to sell or mortgage real estate. he is bound to comply with his duties. He can no longer apply to the court to have the transactions approved between the estate and the 3rd persons. Q Are the grounds for removal applicable to special administrators? A NO. Rule 82 provide? A Section 4. Q With respect to the right of an administrator to dispose of real properties of the estate. Rule 82. or the death. not before. resignation. what must the court do? A While Section 2. Q What is the effect of the removal of the administration insofar as creditors are concerned? A The administrator can neither bring any suit nor be made a defendant in any suit. . which power had been granted to the former executor or administrator. and have execution on judgments recovered in the name of such former execution or administrator. the administrator must file his resignation letter to the court. if later he finds it difficult or impossible to continue with his administration. Thus.administrator is appointed. In renewing such power. shall have the like validity as if there had been no such revocation. RULE 83 INVENTORY AND APPRAISAL. and 2. pending negotiation for mortgage)? A The new administrator will continue the negotiations initiated by the former administrator. or removal. the law qualifies in the sense that special administrators are appointed with the discretion of the court and an order appointing one cannot be appealed. what can/not he do? A The administrator cannot perform acts of administration. and led the court and the heirs to believe that he would perform the duties as such and protect and serve the interests of said heirs and other interested parties.

When three (3) months after his appointment every executor or administrator shall return to the court a true inventory and appraisal of all the real and personal estate of the deceased which has come into his possession or knowledge. such other provisions and articles as will necessarily be consumed in the subsistence of the family of the deceased. (Chua Tan. a substantive law. such allowance as are provided by law. trustees. claimed by other persons is considered part of the estate for the purpose of determining whether it should be included or excluded from the inventory. Certain articles not to be inventoried. Allowance to widow and family. Q What is the duty of every executor or administrator? A A Under these rules. 3. having the character of an advance payment to be deducted from the respective share of each participant is without legal basis when there is no property to be partitioned. accountable for a true and complete inventory of all the property belonging to the state which has come to his knowledge. (Chua Tan vs. Vs. wearing apparel of the surviving spouse 2. • Inventory and appraisal must be made within 3 months from the grant of letters testamentary or of administration. Article 188 of the Civil Code permits the allowances to the surviving spouse and his/her children without distinction. rights and credits of the deceased which have come into his possession or to his knowledge. (id. under the direction of the court. pending the liquidation of the estate. an administrator’s unexplained delay in filing the inventory may be a ground for his removal.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . when regularly returned. Ronald Chua Sec.) • Although the administrator is not chargeable with the administration of the estate which has not come to his possession. Even a decree of the court accepting the inventory will not be conclusive upon the executor or administrator. Del Rosario) ₱ Q What is the purpose of the inventory and appraisal of the estate? A The purpose of the inventory and appraisal of the estate of the decent is to aid the courts in revising the accounts and determining the liabilities of the executor or administrator in making a final and equitable distribution of the estate and otherwise facilitate the administration of the estate. Since the provisions of the NCC. and the powers. . the probate court may pass upon the title of such properties. an administrator’s unexplained delay in filing the inventory may be a ground for his removal. the probate jurisdiction of probate courts relates only to matters having to do with the settlement of the estates and probate of wills of deceased persons. 3. Q Under Section 3. widow of the deceased 2. (Moore & Sons Mercantile Co. Wagner) Q Can children of the deceased. wearing apparel of the minor children. While the Rules of Court limit allowances to the widow and minor or incapacitated children of the deceased. Q Who determines what property should be included in the inventory? A For purpose of determining whether a certain property should or should not be included in the inventory. it is the duty of the executor or administrator to present an inventory of the real estate and of all the goods. duties and rights of guardians and wards. In the appraisement of such estate. Inventory and appraisal to be returned within three months. Maralit) The mere fact that one of the parties is the executor or administrator of the estate does not confer upon the probate court exclusive jurisdiction to decide all questions that may arise between said executor or administrator and 3rd persons as to the title of a specific property. . Rule 83. either as against 3rd persons or the executor or administrator. 2. appointment and removal of guardians and trustees. The inventory and appraisal. As to property which came to his knowledge but not into his possession. etc. the marriage bed and bedding. because said support. incapacitated children of the deceased Q May allowance be granted when the liabilities of the estate exceed the assets of the estate of the decedent? A NO. marriage bed and bedding. however. Sec. (Adapon vs. and such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased. who are neither minors nor incapacitated persons. Q Why is such determination by the probate court provisional in character? A NO. The fact that an inventory was filed after the three-month period would not deprive the probate court of jurisdiction to approve it. Said determination is not final in nature and cannot prejudice the right of interested parties in a proper and separate action to determine actual title. Q What should not be included in the inventory? A The following should be included in the inventory: 1.The wearing apparel of the surviving husband or wife and minor children. while generally treated as prima facie evidence of the value of the estate. Such questions must be submitted to the court in the exercise of its general jurisdiction. Del Rosario) Q Is inventory and appraisal conclusive of the value of the estate? Allowance – refers to the monetary advances which are subject to collation and are likewise deductible from their share in the estate of the decedent. the court may order one or more of the inheritance tax appraisers to give his or their assistance. under the direction of the court. Sebial) • However. vs. (page 113 is missing ) Sec. the following are entitled to allowance during the settlement of the estate: 1. Q What is the nature of such determination by the probate court? A The probate court can only make a prima facie determination of whether certain property. nor administered as such. gives the surviving spouse and to the children the right to receive 59 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . When the liabilities of the estate exceed the estate of the decent. (Sebial vs. as may be seen. chattels. and shall not be included in the inventory. Under this provision. However. the law does not extend the jurisdiction of a probate court to the determination of questions of ownership that arise during the proceeding. and the surviving spouse had not contributed any property to the marriage. shall receive therefrom. during the settlement of the estate. be granted allowance or support during the settlement of the estate? A YES. shall not be considered as assets. and cestuis que trust. the latter cannot be granted support not the minor children for that matter. and 3. is NOT CONLCUSIVE. he is. he may bring such action as he may deem necessary for the purpose of obtaining possession thereof. minor children of the deceased. 1. who are entitled to allowance during the settlement of the estate? A Under this provision.The widow and minor or incapacitated children of a deceased person. • The three-month period is not mandatory. and 4.

S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . as in this section provided. Wagner) A YES. it cannot be constituted without special authority as far as the husband is concerned with respect to the wife’s paraphernal real estate. and property in their hands or control. (De Hilado vs. at all times. shall exhibit to him all such books. minor incapacitated children should receive? A The court has jurisdiction to determine the respective amounts. and may examine and make invoices of the property belonging to such partnership. and may examine and take copies of. Q In general. . the primary consideration is the SOLVENCY OF THE ESTATE. NCC or Family Code include grandchildren as among those who may be granted allowance during the settlement of the estate. Gesmundo. (San Diego vs. papers. probable value of the estate. he shall have the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and the expenses of administration. Ronald Chua support during the liquidation of the estate of the deceased. The contract of lease. Q Should the surviving spouse be legitimate? A YES. No demand. now Article 133 of the Family Code. An executor or administrator shall maintain in tenantable repair the houses and other structures and fences belonging to the estate. which is a procedural rule (Santero vs. Q Can the executor or administrator lease any of the properties of the estate under his administration? Does he need court approval to do so? A NO. provides that “[f]rom the common mass of property. The probate court has no power to annul or invalidate the contract in the settlement proceedings wherein it had no jurisdiction over the person of the lessee. the court having jurisdiction of the estate may order any such surviving partner or partners to freely permit the exercise of the rights. therefore. but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them. Sec. papers. and deliver the same in such repair to the heirs or devisees when directed so to do by the 60 | Q May the probate court interfere or annul such contract of lease if entered into without its intervention? A NO. and to exhibit the books. no delay. Section 3. Under Article 1878 of the NCC on Agency.An executor or administrator shall have the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and the expenses of administration. CFI) ₱ Article 188 of the NCC. Q What are the general powers and duties of an executor or administrator? A The following are the general powers and duties of an executor or administrator: 1. On the written application of such executor or administrator. 1. when lease is to be recorded in the Registry of Property. is judicial approval necessary? A NO. He may. is judicial approval necessary? A NO. Sec. books and papers relating to the partnership business. A separate ordinary action is necessary to that effect. on request. and may examine and make invoices of the property belonging to such partnership 2. being a mere act of administration. support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered. and to administer estate not willed. would have no legal basis when there is no property to be partitioned. Executor or administrator to retain whole estate to pay debts. Q Are grandchildren entitled to such allowance pending the settlement of the estate? A NO. While it may be admitted that the duties of a judicial administrator and Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Rule 85 grants to the executor or administrator the power of administering the estate of the deceased and he may exercise all acts of administration without special authority of the Court and this includes leasing the property whether it is to be recorded in the Registry of the Property. Executor or administrator to keep buildings in repair. financial status of the family. nevertheless. not merely a common. 3. the father or guardian as to the property of the minor or wards and manager without special power. court. According to Atty. While it is true that under Article 1647 of the NCC. None of the provisions of the ROC. exercise all acts of administration without special authority of the court. and may punish any partner failing to do so for contempt. It has been held that when the liabilities exceed the assets of the deceased spouse’s intestate estate and that his widow has not contributed any property to the marriage. and deliver the same in such repair to the heirs or devisees when directed to do so by the court. (De Hilado vs. and 2. she cannot be granted support pending the liquidation of the intestate estate. Q Can the surviving spouse be granted support from the estate in all cases? Why or Why not? to make improvements on the properties under administration with the necessary court approval except for necessary repairs. Nava) Q When does delay in the giving of allowance commence? A It commences AFTER DEMAND. or 3. But an executor or administrator is NOT AN AGENT. The surviving spouse must be legitimate. could validly be entered into by the executor or administrator within his power of administration even without the court’s previous authority. and 4. what acts may the executor or administrator validly perform? A The executor or administrator has the power of administering the estate for the purposes of liquidation and distribution.law spouse. (Moore & Sons Mercantile Co. maintain in tenantable repair the houses. How right enforced. Nombre) Q If the lease is for a period exceeding 1 year. Nava) Q If the lease is to be recorded in the Registry of Property. and the surviving partner or partners. Q Who determines what amount the widow. Q What factors are considered by the court in determining what amount is received? A The following are the factors are considered by the court in determining what amount is received: 1. and other structures and fences belonging to the estate. special powers of attorney are necessary to lease any real property to another person for more than 1 year. having the character of an advance payment to be deducted from the respective share of each participant. such right cannot be impaired by Rule 83 of the ROC. and property.The executor or administrator of the estate of a deceased partner shall at all times have access to. 2. . he shall. This is based on the ground that such support. Executor or administrator to have access to partnership books and property. have access to and may examine and take copies of books and papers relating to the partnership business. vs. RULE 84 GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS Sec.

in limiting the powers and rights of the agent. even if it is for the benefit of the estate. Reyes) RULE 85 ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS Sec. that they are required to file a bond and that their acts are subject to specific provisions of the law and orders of the probate court. 1. which circumstances are not true with respect to agents. every executor or administrator is chargeable in his account with the whole of the estate of the deceased which has come into his possession. (Jaroda vs. ₱ As distinguished from his duty to present an inventory. (estate of Olave vs. Cusi. he is chargeable with all the losses incurred thereby without allowing him to receive the benefits of any profits that he may make. Before entering into his duties. . stems from the fact that control by the principal can only be through agreements A The law does not impose upon an administrator or executor a high degree of care in the administration of the estate but an ordinary and usual care for the want of which he is personally liable. Ronald Chua an agent are in some aspects identical. (?) 5. the provisions on agency should not apply to a judicial administrator. Court of Appeals) • Where the estate of a deceased person is already the subject of a testate or intestate proceeding. liquidate and distribute the community property because the estate of a deceased spouse consists not only of the exclusive properties of the decedent.Except as otherwise expressly provided in the following sections. An administrator or executor holds the property of the estate as a trustee. such should not be permitted in view of the fiduciary relationship that they occupy with respect to the heirs of the deceased and their responsibilities towards the probate court. No bond required. (San Diego vs. profit. the administrator or executor is accountable for a correct and complete Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . and once the harm is done. and income of such estate. buy property under his administration as it is prohibited under Article 1491(3) of the NCC 2. 4. JUDICIAL ADMINISTRATOR Appointed by the court. borrow money. While there is no express provision of law prohibiting an administrator or executor from appointing himself as agent. This is proper and he is not answerable for the low rate of interest thus obtained.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . but also ½ of the assets of the conjugal partnership. When there are no debts to be paid. at the value of the appraisement contained in the inventory. The creditor may direct his action against said executor’s or administrator’s heirs. Nombre) Q Can the executor or administrator deal with himself as an individual (auto contracts) in any transaction concerning property of the estate? A NO. 6. which may pertain to the deceased. at the price at which it was sold. he is required to post a bond. CA) • An administrator of an estate cannot exercise the right pf legal redemption over a portion of the property owned in common sold by one of the other co-owners since this is not within the powers of administration. Jr. Executor or administrator chargeable with all estate and income. Q When is property of executor or administrator answerable for his debts? A In case of the death of an executor or administrator who has contracted debts. the administrator cannot enter into any transaction involving it without any prior approval of the Court. He is not only the representative of said court. it might be too late to correct it. continue the business in which the deceased was engaged in at the time of his death without the order of the court as his duty is to settle the estate as soon as possible and not to prolong his administration. his own property which he left at death is directly liable for payments of such debts. Q When is an administrator entitled to the possession of the property of the deceased? A The administrator or executor shall have the right to take possession of the properties of he deceased so long as it is necessary for the payment of debts and expenses of administration. An administrator or executor is not permitted to deal with himself as an individual in any transaction concerning trust property. if any. AGENT By agreement only answerable to his principal. A contrary ruling would open the door to fraud and maladministration. For until all the creditors of a deceased person have been paid.) Q What acts can the administrator or executor not validly perform? A The following are the acts can the administrator or executor not validly perform” 1. Any interested party who desires to impugn the same must do so in an ordinary civil action as the probate court has no jurisdiction over the lessee. Q What if a lease contract exceeds 1 year? A If the lease contract exceeds 1 year. Q What is the extent of an executor’s or administrator’s accountability? A The administrator or executor is accountable for the WHOLE OF THE ESTATE of the deceased which has come into his possession but not for the estate which he has never possessed. with all the interest. Q What is the care required in the management of the estate by the administrator or executor? 61 | • The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is NOT absolute and can only be exercised so as long as it is necessary for the payment of the debts and expenses of the administration. speculate with funds of the estate or place them where they may not be withdrawn at once by order of the court even if it means depositing said funds in current account which has a low or no interest instead of a fixed account with a high rate of interest. (Caro vs. If he does so with the funds of the estate. The protection which the law grants the principal. the same is no longer considered a mere act of administration and leave of court should be required. (Estate of Hilario Ruiz vs. 3. The constitution of a lease over property of the estate is an act of administration and leave of court is not required. and with the proceeds of so much of the estate as is sold by him. He cannot profit by the increase or decrease in the value of the property under administration Q What is the extent of the powers of an administrator or executor? A An administrator or executor has all the powers necessary for the administration of the estate and which powers he can exercise without leave of court. A view is held however that the aforesaid provision of Article 1878 of the NCC on agency should not apply to leases entered into any administrator or executor under the theory that they represent not only the estate but also the parties interested therein. nevertheless. The administrator of a deceased spouse shall also administer. Cannot lease the property for more than one year. Acts of a judicial administrator are subject to specific provisions of law and orders of the appointing court. the estate should pass to the heirs. there can be no net inheritance divisible among the heirs. but also the heirs and creditors of the estate.

Of course. A Contracts for occupation should not be for lease. Sec. ₱ Section 4 is just a reproduction of the Code of Civil Procedure without taking into account the provisions of the Civil Code. Q Is the administrator or executor accountable for debts which are uncollected due to his fault? A YES because there is prima facie presumption of fault on his part. Sec. This situation would now come within the realm of auto. or neglects to pay over the money he has in his hands. Rule 85 are confined to money claims. In addition. without his fault. as where through negligence. a qualification to this rule. Rule 85? A NO.If the executor or administrator uses or occupies any part of the real estate himself. of any part of the estate. Exception to the exception. Escudero) Q How does one make the executor liable? A The executor could be made liable by going against his bond. he is entitled to charge in his account only the amount he actually paid on the settlement. While on the other hand. Q What is the liability of an administrator or executor who neglects or delays to raise or pay money? A It shall be deemed waste and the damage sustained may be charged and allowed against an administrator or executor in his account and he shall be liable therefore on his bond when 1. 4.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . neglects to pay over the money he has in his hands. Furthermore. and if the parties do not agree upon the sum to be allowed. is this the debt contemplated by Section 3. . Q Is the administrator or executor accountable for uncollected debts? A NO. Sec. The debts contemplated by this provision are confined to MONEY DEBTS. by collecting the debts or selling the real or personal estate of the deceased. and if any is sold for less than the appraisement. however.No executor or administrator shall profit by the increase. it is the duty of the administrator or executor to handle and marshal the assets of the estate in a business like manner. Contracts of bailment should not be between the administrator and himself as for the payment of a debt to him. Sec. the law does not impose upon the administrator a high degree of care in the administration of the estate. he shall not profit by the increase of the estate. or 2. Q If there is a mortgage to be foreclosed and the administrative was not able to foreclose the same and a loss to the estate results. or the persons interested suffer loss. neglects or unreasonably delays to raise money by (a) collecting the debts or (b) selling the real or personal estate of the deceased. Q What kinds of debts are contemplated by Section 3. or adjusted by the court with their assent. and he shall be liable therefor on his bond. he is not responsible for the loss. Accountable if he neglects or delays to raise or pay money.No executor or administrator shall be accountable for debts due the deceased which remain uncollected without his fault. the court already has jurisdiction over the real property. and in the absence of proof to the contrary. without his fault. Q Is the administrator liable for loss of personal properties under his administration through fortuitous event? A NO. Rule 85 is in the present tense as can be gleaned from the use of the word “uses” or “occupies” Q Reconcile the provisions of the NCC (Articles 1491 and 1646) with this section. then the lease is perfectly valid. the same may be ascertained by the court. Atty. he shall not be held liable for any decrease which the estate. . the same shall be deemed waste and the damage sustained may be charged and allowed against him in his account. however. Generally. the wording of Section 4. Ronald Chua inventory not only of all the property of the estate which has come into his possession but also of all the property which has come to his knowledge. He is liable for any unreasonable or unnecessary delay in the settlement and closing of the estate. the executor or administrator failed to recover part of the state which came to his knowledge. The administrator or executor shall not be accountable for uncollected debts due to the deceased without his fault. 5. 3. he is accountable for the property so lost. Accountable for income from realty used by him. no action has been brought for recovery. If the administrator was the original lessee before he was named as administrator. how can the executor take possession? A The executor can take possession of the property in Cebu by an annotation lis pendens on the TCT of the real property. he shall account for it as may be agreed upon between him and the parties interested. by fortuitous event. There is. Q If the executor is in Manila and the real property is in Cebu. if the sale has been justly made. If he settles any claim against the estate for less than its nominal value.contracts. for such is the natural course of things. When not accountable for debts due estate. However. but it imposes upon him ordinary and usual care for the want of which he is personally liable. An administrator in administration proceeding is not liable for the loss. Q How does one go against the bond filed by the executor? A One could go against the bond by applying to the court which granted the letters of testamentary for the application of the bond. whether the debts remain uncollected without the executor’s or administrator’s fault must be shown by him. or (c) the person interested suffers loss. and the value of the estate is thereby lessened or unnecessary cost or interest accrues. Q When is the administrator or executor accountable even for properties he has never possessed? A If the administrator or executor failed to take possession of the property through his fault. and not in that as the heirs and creditors desire it to be. then it could not be allowed because it would amount to self – dealing. Rule 85? A The debts contemplated by Section 3. Except. Rule 95. 62 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . and (a) the value of the estate is thereby lessened or (b) unnecessary cost or interest accrues. or suffer loss by the decrease or destruction.When an executor or administrator neglects or unreasonably delays to raise money. He must account for the excess when he sells any part of the estate for more than appraisement. He is not accountable for properties which never came to his possession. 2. When through untruthfulness to the trust or his own fault or for lack of necessary caution. Q What is the extent of the accountability of the administrator or executor? A The administrator or executor is chargeable with the estate in such conditions as it is found. whose determination in this respect shall be final. Not to profit by increase or lose by decrease in value. . but the annotation of lis pendens would serve as further protection. if the lease was constituted during the pendency of his administration. Then again. he is accountable therefor. of the property under his administration in the absence of proof that said loss was due to his negligence. Q Can an administrator be a lessee of the estate he is administering? A YES by virtue of Section 4. Gesumundo was confusing at this point. However. (Garcia vs. The presumption being that the debt could have been collected. might have sustained. .

When the deceased by will makes some other provision for the compensation of his executor. Expenses for stenographic notes. What expenses and fees allowed executor or administrator. the necessary expenses in the care. or (2) Petition in the testate or intestate proceeding asking the court. etc. he shall not charge against the estate any professional fees for legal services rendered by him. which forms part of the sepulture of the deceased cannot be treated as necessary expense of administration. expenses incurred by a presumptive heir for her appearance and that of her witnesses at the trial to oppose the probator of an alleged will. The expenses incurred on the occasion of the death anniversary of the deceased cannot be considered as part of the funeral expenses. the allowance may be re-examined on appeal. management. Q What costs may not be charged by the administrator or executor against the estate? A In actions brought by the administrator or executor which is more for his personal benefit than for that of the estate. then it is not a necessary expense. or by delivery to heirs or devisees. and 2. When the executor or administrator is an attorney. and the settlement has been attended with great difficulty. (Nicolas vs.The amount paid by an executor or administrator for costs awarded against him shall be allowed in his administration account. 6. are allowable as legitimate administration expenses of the estate of the deceased. and settlement of the estate. devisees. . expenses. then it could be considered as a necessary expense. the erection of a mausoleum. chargeable as costs of administration? A NO because attorney’s fees are considered as part of administration itself. 7. to allow his claim and direct the administrator to pay it as an expense of administration. ₱ 4/day for his services or commission upon the value of so much of the estate as has come into his possession and disposed of by him in payment of his debts. 5. Sec. salary of the household help. • Whatever course is adopted. and for his services. 3. Q Could it be argued that the services of an attorney be considered as necessary expense? A IT DEPENDS. They are incurred in the natural course of administration. Q How would money paid as costs be allowed? A These costs must have been incurred in good faith. expenses for the renovation and improvement of the family residence. Sec. Q What costs may the administrator or executor charge against the estate? A Generally. Expenses of Administration – refers to those necessary for the management of the property. unless he acted in bad faith. • Q What expenses and fees are allowed to the administrator or executor? A The administrator or executor is allowed: 1. the compensation shall be apportioned among them by the court according to the services actually rendered by them respectively. after notice to all persons interested. the heirs and other persons interested in the estate will have the right to inquire into the value o the services of the lawyer and on the necessity of his employment. a greater sum may be allowed. But the living expenses of an heir occupying the family residence are not legitimate administration expenses of the estate of the deceased. as when he contests the allowance of the will or is sued for attorney’s fees or brings litigation for the deliberate purpose of defrauding the heirs for his own benefit. legatees and the creditors have a right to run after the administrator or executor. and not in good faith. Q Are A expenses on the anniversary of the death of the deceased considered necessary expenses of administration? NO. But in any special case. expenses. e. oil. In other words. light and water bills. Ronald Chua Q Who has the right to run after the administrator or executor? A The heirs. Compensation provided by will controls unless renounced. unexplained representation expenses. costs charged or allowed against an administrator or executor in actions brought or prosecuted by or against him should be paid out of the estate of the deceased. and possibly for the production of fruits. and has required a high degree or capacity on the part of the executor or administrator. expenses for the settlement of the question as to who are entitled to the estate left by the deceased. ₱ However. cost of gas. where the estate is large. g. 2. management and settlement of the estate. Q Are attorney’s fees paid by the administrator to his own lawyer. incurred to preserve the family home and to maintain the family’s social standing in the community. one-half per centum of so much of such value as exceeds thirty thousand pesos and does not exceed one hundred thousand pesos and one-quarter per centum of so much of such value as exceed one hundred thousand pesos. they are costs of litigation. or distributive shares. Similarly. four pesos per day for the time actually and necessarily employed. If objection to the fees allowed be taken. unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause. one per centum of so much of such value as exceeds five thousand pesos and does not exceed thirty thousand pesos. Q When may attorney’s fees be allowed? A Attorney’s fees may be allowed as expenses of administration when the attorney’s services have been rendered to the executor or administrator to assist him in the execution of his trust. legacies. When allowed money paid as costs. that provision shall be a full satisfaction for his services unless by a written instrument filed in the court he renounces 63 | all claim to the compensation provided by the will. An executor or administrator shall be allowed the necessary expenses in the care. legacies or distributive shares or by delivery to the heirs of the deceased. (Occena vs. Marquez) Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Personal expenses of the occupant of the heir of the family residence.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . If the services of counsel were availed of for collecting debts.Not to charge for services as attorney. Procedure for Collection of Attorney’s Fees (1) Request the administrator to make payment and file an action against him in his personal capacity and not as administrator should he fail to pay. who is acting in behalf of the administrator. 4. expenses incurred by an executor or administrator to procure a bond. If there are two or more executors or administrators. . for protecting it against destruction or deterioration. costs should be personally borne by him. of two per centum of the first five thousand pesos of such value. Nicolas) Q What other expenses cannot be considered necessary expenses for administration? A The following cannot be considered as necessary expenses for administration: 1. If it is however incurred for helping the administration. or a commission upon the value of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts.

he is entitled to reimbursement from the estate. unless the court otherwise directs because of extensions of time for presenting claims against. Imperial and Panis) NO. . and to either an increase or decrease as conditions may warrant. (Dacanay vs. YES. Elser) 3. Hernandez) or where due to his neglect. Q Is the period of 1 year mandatory? Q What is the basis of the compensation? A The commission is based upon the value of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts. Reyes) Q Can the administrator or executor seek reimbursement for all attorney’s fees incurred by him? Reimbursement can be had only if the fees paid were beneficial and reasonable.000. the account of commission is as follows: A The provision of Section 8. It is always subject to change and the approval of the court. except in cases of abuse thereof. when the administrator or executor is an attorney. and Although the compensation may be agreed upon by mutual consent among the parties involved. ¼% of more than ₱100. Even if it were to take only a few minutes to do so. and he shall render such further accounts as the court may require until the estate is wholly settled.000. the liability for the payment of such fees rests on the executor or administrator. 9. When executor or administrator to render account. or paying the debts of.000 but less than ₱30. Examination on oath with respect to account. the Rules provide that “he shall render such further accounts as the court may require until the estate is wholly settled. the amount of an administrator’s or executor’s fee is largely in the discretion of the probate court. Reyes) ₱ Attorney’s fees are also subject to certain standards. However. 1. where there have been extensions of time for presenting claims against or paying the debts of the estate. It is a duty that has to be performed and duly acted upon by the court before the administration is finally ordered closed or terminated. the administration has been too expensive. Joson) Q If the administrator or executor is a lawyer. the estate. Rule 85 is merely DIRECTORY. legacies or distributive shares. the extent of services rendered. Orense) Q Who is directly liable for the payment of attorney’s fees when they are due? A A Since the service for which attorney’s fees are claimed are supposed to have been rendered to the executor or administrator to assist him in the execution of his trust. Reyes) Q What is the effect of an agreement between the administrator or executor and the interested parties as to the former’s compensation? ₱ A In other words.000. which shall not be disturbed on appeal. An extension of time is allowed by the court for presenting claims against. and the settlement has been attended with great difficulty and has required a high degree of capacity on the part of the administrator or executor. 3. His compensation is fixed by the rules but such compensation is in the nature of commissions and never as attorney’s fees. (Lacson vs. The fact that all the heirs of the estate have entered into an extrajudicial settlement and partition in order to put an end to their differences cannot in any way be interpreted as a waiver of the objections of the heirs to the accounts submitted by the administrator or a release of the latter’s obligation to prove his accounts. or paying debts of the estate. The estate cannot be held liable for the costs of counsel fees arising out of litigation between the beneficiaries thereof among themselves or in the protection of the interests of particular persons or in the favor of an administrator who brings litigation for his own benefit and for the purpose of defrauding the heirs. He is entitled to either but not to both. Ronald Chua • The award of the probate court in this regard is appealable by Record on Appeal. A the professional standing of the lawyer (Lacson vs. 1% of more than ₱5. they must have a bearing on the importance of the subject matter in controversy.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . Rule 85. (Uy Tioco vs. At all times. General Rule: Within one year from the time of receiving letters testamentary or letters of administration. is it a sufficient ground for increasing his compensation? 64 | Sec. that is to say. ½% of more than ₱30. and 4. Every executor or administrator shall render an account of his administration within one (1) year from the time of receiving letters testamentary or of administration. the court may direct a period longer than 1 year.The court may examine the executor or administrator upon oath with respect Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . Accordingly. is the administrator still bound to render an accounting? A A In any special case where the estate is large. 8. Hernandez) Sec. Under Section 7. (Joson vs.000 but less than ₱100. They attorney cannot hold the estate directly liable for his fees. 2% of the first ₱5. aside from the initial accounting. the compensation of the administrator or executor is a matter largely to the discretion of the probate court. to wit: 1. 2. The administrator or executor is entitled to either a per diem of ₱4/ day or a commission. But if said fees were paid by the administrator or executor and are beneficial to the estate and reasonable. they must be reasonable. or for disposing of the estate. and he shall render such further accounts as the court may require until the estate is wholly settled. or for disposing of the estate. The rule is therefore clear that he is allowed only the necessary expenses and not attorney’s fees.000. such is not a valid and binding contract continuous throughout the whole administration of the estate. Exception. But all courts should exert themselves to close up estates within 12 months from the time they are presented. (Rosenstock vs. (Gonzales vs. (Dacanay vs. not for every act or task he might perform. Q Is the administrator or executor entitled to compensation for his services? A YES. it is the client who must shoulder the attorney’s fees. expenses. Q May a greater sum be allowed the administrator or executor than the fixed per diem or commission? Q If the administration of the estate has ceased as the heirs have agreed to a partition of the estate. or for disposing of the estate. he may be denied compensation for his services where the prolongation of the settlement of the estate is due entirely to his efforts to defraud the heirs. which can be waived or disregarded when the same is terminated. Q What is the basis for the per diem compensation? A The rules allow the administrator or executor to collect for his services as such the sum of ₱4 for every day actually and necessarily spent by him in the administration and care of the estate of a deceased person. The duty of an administrator to render an accounting is NOT A MERE INCIDENT of an administration proceeding. he shall not charge against the estate any professional fees for legal services rendered by him. or by delivery to heirs or devises. (Lacson vs. 2. Furthermore. The fact that the final accounts had been approved does not divest the court of jurisdiction to required supplemental accounting for.

by the judgment against his principal even though said surety was not a party to the proceedings.S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty . The heirs. as the court directs. Account to be settled on notice. a person liable as surety in respect to such account may. legatees. Q What can the court do to verify the accounting done by the executor or administrator? A The court may examine the executor or administrator under oath in order to verify the accounting he has done. 11. or both. According to Section 11. he is bound and concluded in the absence of fraud and collusion. Luzon Surety Co. (Philippine Trust Co. Inc. .) 65 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013 . be admitted as party to such accounting.Upon the settlement of the account of an executor or administrator. legatees. which makes him privy to the proceedings against the principal. and creditors of the estate shall have the same privilege as the executor or administrator of being examined on oath of any matter relating to an administration. and (2) Its correctness is satisfactorily established by competent proof. Q Is the surety privy to the proceedings against the executor or administrator? A From the nature of the obligation entered into by the surety on an administrator’s bond. Inc. be admitted as a party to such proceeding. Ronald Chua to every matter relating to any account rendered by him. vs.Before the account of an executor or administrator is allowed. and such notice may be given personally to such persons interested or by advertisement in a newspaper or newspapers. Sec. vs. except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof. upon application. The import of this provision is that the surety is not entitled to notice but may be allowed to intervene in the settlement of the accounts of the executor or administrator if he asks for leave to do so in due time. The same privilege shall be extended to the heirs. Q How will the court call the executor or administrator? A Notice may be sent to the executor or administrator or to the interested parties. . Examination may be Dispensed with When: (1) No objection is made to the allowance of the account.. Surety on bond may be party to accounting. upon application.) Q Is the surety entitled to notice in the proceeding for the settlement of the account of the executor or administrator? A NO. Luzon Surety Co. distributes. 10. and creditors. (Philippine Trust Co. Rule 85. Q May the surety be part of the proceedings? A YES but only in the settlement of account of executor or administrator and not in the settlement of the proceedings. and shall so examine him as to the correctness of his account before the same is allowed. Sec. the surety may. notice shall be given to persons interested of time and place of examining and allowing the same. Q Who will conduct the examination of the executors or administrators? A The probate court or any lawyer or interested party may conduct the examination. distributees..

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