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Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty.

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.

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 There is a definite party
particular
adverse
parties petitioner/movant but no definite
(plaintiff and 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:

statute expressly so provides. In special proceedings, the remedy is
granted generally upon an application or motion.
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)

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)

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.

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

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.

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.

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
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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,

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
and costs, the amount of which must be specifically alleged: Provided,
That where there 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.

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BAYBAYAN vs. AQUINO, 149 SCRA 186 (1987)
FACTS:
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;

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Cancellation or correction of entries in the civil registry.

What may be the subject matter of special proceedings?
Refer to Section 1, Rule 72 above.
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.

Q
A

• 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.

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

Special Civil Action

Special Proceeding

Civil action subject to
specific rules.

Remedy by which a
party seeks to
establish a status, a
right or a particular
fact

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

Governed by special
rules and ordinary
rules apply
suppletorily
May involve only one
party
Initiated by petition

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
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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, 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

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Eliezar’s appointment was only 90,000 “more or less.” The CA granted
the writ of certiorari and prohibition. Hence this appeal.
ISSUE/S:
Whether the CA has appellate jurisdiction over special proceedings.
HELD:
NO. 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 200,000 ( 362,000). Under Section 2,
Rule 75, 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.
Not having appellate jurisdiction, as the amount is over
200,000, the CA cannot have original jurisdiction to issue the 2 above
mentioned writs as such was merely incidental.
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. 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. On the other hand, it has
been held that the term “civil cases includes special proceedings.” Such is
untenable as a special proceeding has never been held to be a civil case.
Further, Section 2, 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.
RULE 73
VENUE AND PROCESS

Sec. 1. Where estate of deceased person settled. - If the decedent
is an inhabitant of the Philippines at the time of his death, whether a
citizen or an alien, his will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First Instance in the
province in which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance of any
province in which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a court, so far
as it depends on the place of residence of the decedent, or of the
location of his estate, shall not be contested in a suit or proceeding,
except in an appeal from that court, in the original case, or when the
want of jurisdiction appears on the record.
* note that under BP129, the so- called inferior courts, the Metropolitan,
Municipal or Municipal Circuit Trial Courts, have been conferred
exclusive jurisdiction in all matters of probate both intestate, where the
gross value of the estate does not exceed ₱20,000.

(
BP&129,&Section&19.&Jurisdiction!in!Civil!Cases!–(Regional(Trial(Courts(
shall(exercise(exclusive(original(jurisdiction:(
X(x(X(
(4)( In( all( matters( of( probate,( both( testate( and( intestate,( where( the(
gross(value(of(the(estate(exceeds(P100,000(or,(in(probate(matters(in(
Metro(Manila,(where(such(gross(value(exceeds(P200,000.(
(
Conversion&of&an&Intestate&into&Testate&Proceeding&
• The(probate(of(a(will(is(mandatory(and(therefore,(takes(
precedence(over(intestate(proceedings.(
• 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(
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does(not,(however,(ipso!facto(nullify(the(letters(of(
administration(already(issued(or(even(authorize(their(
revocation(until(the(Will(has(been(proved(and(allowed.(
(
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,(mortgage(or(any(encumbrance(of(real(estate(
(g)(Directs(the(delivery(of(the(estate(to(those(entitled(thereto(
(
• The(court(acts(as(a(TRUSTEE.(
(
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. whether the decedent is a resident of the Philippines or not
2. 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. the residence of the decedent to determine the venue
4. whether the deceased left any debts
5. whether the deceased left a will
! if there is no will and no debts, apply Rule 74 on the summary
settlement of estates

Extent&of&Jurisdiction&
Probate( courts( are( courts( of( LIMITED( jurisdiction.( It( may( only(
determine( and( rule( upon( issues( relating( to( the( settlement( of( the(
estate,(namely((LAD):&
(a)(Administration(of(the(estate(
(b)(Liquidation(of(the(estate;(and(
(c)(Distribution(of(the(estate.(
(
Q What is the jurisdiction of a probate court?
A Probate proceedings are purely statutory. Thus, 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. 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( 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,( executors,(
guardians( and( trustees( but( does( not( extend( to( the(
determination( of( questions( of( ownership( that( arise( during( the(
proceedings.( 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.(

(
Jurisdiction&to&Distribute&the&Estate
• It(is(the(probate(court(that(has(exclusive(jurisdiction(to(make(a(
just(and(legal(distribution(of(the(estate(

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
• The(probate(court,(in(the(exercise(of(its(jurisdiction(to(make(

distribution,(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,(would(be(contrary(
to(the(general(tendency(of(the(jurisprudence(of(avoiding(
multiplicity(of(suits.(

(
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.(
(
General&Rule:(Probate(Court(cannot(determine(issue(of(ownership(
Exceptions:(
(a)(Ownership(may(be(PROVISIONALLY(determined(for(the(
purpose( of( including& property& in& inventory,( without(
prejudice(to(its(final(determination(in(a(separate(action;(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.(
(c)(Question(is(one(of(collation(or(advancement.(
• An(order(to(include(properties(in(inventory(is(merely(provisional(

and(interlocutory.
• Since( the( determination( of( the( probate( court( of( the( question( of(

title(was(merely(provisional,(is(not(binding(with(any(character(of(
authority,( having( been( made( only( for( purposes( of( inclusion( in(
inventory,( it, cannot, be, the, subject, of, execution,( 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.

(
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.(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.( 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(other(legal(obstacles(to(
it.(
• For(the(protection(of(the(claimant,(the(appropriate(step(is(to(have(
the(proper(annotation(of(his(lis!pendens(entered.(
(
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.(
• A(separate(action(for(the(declaration(of(heirs(is(not(proper.(
&
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
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

the court of proper petition by some person entitled to take such
action. There must be evidence before it:
1. that a person has died leaving a will
2. in the case of a resident of this country, that he died in the
province where the court exercises territorial jurisdiction
3. in the case of a nonresident, that he ahs left an estate in the
province where the court is situated
4. that the testament or last will of the deceased has been
delivered to the court and is in the possession thereof (Salazar
vs. CFI)
SALAZAR vs. CFI OF LAGUNA AND RIVERA, 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,
1924. The petition was opposed by Sabina Rivera and prayed for the
probate of the will of the deceased alleged made on May 11, 1930, copy
of which was attached thereto, and for the issuance, to that effect, of
the order setting the hearing thereof and directing such publications as
required by law.
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. The respondent filed a motion for
reconsideration and the court, on March 31, 19937, issued an order
setting aside the former one and directing that the will presented by the
respondent be set for hearing, 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. Sometime
later, the court ordered that the expenses for the publications made in
the newspapers be defrayed by the respondent.
The petitioner filed two motions for reconsideration which
were denied and, finally, instituted this certiorari proceeding. In order
that the hearing and publications ordered by the court may be carried
out, the respondent, on July 20, 1937, deposited P24 and filed the
original of the will the probate of which had been sought by her.
ISSUE/S:
Whether the court acquired no jurisdiction to take cognizance
of the counter-petition for the probate of the second will, or to set the
same for hearing of said will to be held in the same proceeding jointly
with the first will, on the ground that the respondent had not previously
filed her pleading nor paid the fees of the clerk of court.
HELD:
YES. 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;
(2) in the case of a resident of this country, that he died in the province
where the court exercises territorial jurisdiction;
(3) in the case of a nonresident, that he has left a estate in the
province where the court is situated, and (4) that the testament or
last will of the deceased has been delivered to the court and is in
the possession thereof.
According to the facts alleged and admitted by the parties, it is
evident that the court has acquired jurisdiction to probate the second
will, in view of the presence of all the jurisdictional facts above-stated.
The respondent's counter-petition should, in this case, be considered as
a petition for the probate of the second will, the original of which was
filed by her on July 20, 1937.
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.
1. if the decedent is a resident of the Philippines at the time of
his death, his will shall be proved; or a letter of administration

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
granted, and his estate settled in the M/RTC of any province in
which he resides at the time of his death;
2. if the decedent is a non- resident of the Philippines, his will shall
be proved or letter of administration granted, and his estate
settled in the M/RTC of any province and which he had estate.
Q Which court has jurisdiction to take cognizance of the
settlement of the estate of a non- 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, USA and not a “usual resident of
Cavite” as alleged by petitioner (Cayetano vs. Leonidas)
POLLY CAYETANO vs. CFI JUDGE TOMAS T. LEONIDAS, 129 SCRA
522 (1984)
FACTS:
Adoracion C. Campos died, leaving her father, Hermogenes
Campos and her sisters, private respondent Nenita C. Paguia, Remedios C.
Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes
Campos was the only compulsory heir, he executed an Affidavit of
Adjudication whereby he adjudicated unto himself the ownership of the
entire estate of the deceased Adoracion Campos.
Eleven months after, Nenita C. Paguia filed a petition for the
reprobate of a will of the deceased, Adoracion Campos, which was
allegedly executed in the United States and for her appointment as
administratrix of the estate of the deceased testatrix.
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, Pennsylvania, U.S.A. An opposition to the reprobate of the
will was filed by herein petitioner alleging among other things, that he has
every reason to believe that the will in question is a forgery; that the
intrinsic provisions of the will are null and void; and that even if pertinent
American laws on intrinsic provisions are invoked, the same could not
apply inasmuch as they would work injustice and injury to him.
Subsequently, he retracted his opposition and the questioned
will was admitted to and allowed probate in the Philippines and Nenita
Paquia was appointed administratrix. Sometime later, Hermogenes filed a
petition for relief on the ground that the withdrawal of his opposition was
secured through fraudulent means. 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.
HELD:
NO. Under Section 1, Rule 73, if the decedent is an inhabitant of a
foreign country, his will shall be proved or letter of administration granted,
and his estate settled, in the Court of First Instance of any province in
which he had estate. Thus, 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,
United States of America and not a "usual resident of Cavite" as alleged by
the petitioner. Moreover, petitioner is now estopped from questioning the
jurisdiction of the probate court in the petition for relief. It is a settled rule
that a party cannot invoke the jurisdiction of a court to secure affirmative
relief, against his opponent and after failing to obtain such relief, repudiate
or question that same jurisdiction.
Q Is the residence of the deceased in probate proceedings
jurisdictional?
A NO. the question of residence is determinative only of the venue and
does not affect the jurisdiction of the court. Thus, the institution of the
proceeding in the province wherein the decedent neither has residence
nor estate does not vitiate the action of the probate court. As venue is
waivable, the submission of all affected parties to said proceedings is aa
waiver of objection to this error.
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

In the matter of the intestate estate of the late Kaw Singco
(alias Co Chi Seng). SY OA vs. CO HO, 74 PHIL 239 (1943)
FACTS:
Sy Oa is the administratrix of the intestate estate of Kaw
Singco. During the intestate proceedings, an opposition is filed by one Co
Ho. 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. Subsequently, the SC issued a resolution stating
that there is no issue with respect to jurisdiction but there is merely a
question of venue.
ISSUE/S:
Whether the last place of residence of the deceased is an
element of jurisdiction.
HELD:
NO. Section 600 of Act no. 190, providing that the estate of a
deceased person shall be settled in the province where he had last
resided, 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, procedure is one thing and
jurisdiction over the subject matter is another. The law on jurisdiction
confers upon the CFI jurisdiction over all probate cases independently of
the place of residence of the deceased. Since, however, there are many
CFIs in the Philippines, the law of procedure fixes the venue or the place
where each case shall be brought. Thus, the place of residence of the
deceased is not an element of jurisdiction over the subject matter but
merely of venue. 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.”
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.
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, cannot be contested in a certiorari proceeding, but only in an
appeal from the original case, EXCEPT when the want of jurisdiction
appears on the record.
Q X filed a petition to probate the will of B. in his petition, he
alleges that B is a resident of Makati, but he files the same in
Manila. Y opposes because the decedent is a resident of
Makati. Resolve.
A The petition should be dismissed on the ground of improper venue.
From the allegation in the petition, it is clear that venue has been
improperly laid.
Q What if the court denies the opposition and allows the will to
be presented for probate, what is your remedy?
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, B was a resident of Makati, while the petition was filed in
Manila. You do not file an appeal, it would only have the effect of
questioning the jurisdiction of the lower court, since if you file an
appeal, 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.
! Under Section 9 of BP 129, CA exercises jurisdiction to issue writs of
mandamus, prohibition, certiorari, habeas corpus and quo warranto
and auxillary writs of processes, whether in aid of its appellate
jurisdiction.
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

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
of his death. Z opposed on the grounds that venue has been
improperly laid as the decedent was a resident of Makati.
Resolve.
A What do you think?
! Atty. Gesmundo was mumbling about multiple appeals which we will
discuss much later in the course.
Q Can venue be waived?
A Venue is a matter of procedure, which MAY BE WAIVED expressly or
impliedly even in inferior courts. Where defendant, knowing from the
very beginning that venue was improperly laid, allows the trial to be
held against him, he CANNOT, after the rendition of an unfavourable
judgment validly appear in court and raise be deemed waived and can
no longer be pleaded.
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." This term "resides,"
like, the terms "residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or rule in
which it is employed. In the application of venue statutes and rules —
Section 1, Rule 73 of the Revised Rules of Court is of such nature —
residence rather than domicile is the significant factor. Even where the
statute uses the word "domicile" still it is construed as meaning
residence and not domicile in the technical sense. Some cases make a
distinction between the terms "residence" and "domicile" but as
generally used in statutes fixing venue, the terms are synonymous, and
convey the same meaning as the term "inhabitant." In other words,
"resides" should be viewed or understood in its popular sense, meaning,
the personal, actual or physical habitation of a person, actual residence
or place of abode. It signifies physical presence in a place and actual
stay thereat. No particular length of time of residence is required
though; however, the residence must be more than temporary. (Garcia
Fule vs. CA)

&
Residence(–(his(personal,(actual(or(physical(habitation,(his(actual(
residence(or(place(of(abode.((
VIRGINIA GARCIA FULE vs. CA, PRECIOSA B. GARCIA and
AGUSTINA B. GARCIA, 74 SCRA 189 (1976)
FACTS:

Virginia G. Fule filed with the CFI of Laguna a petition for letters
of administration alleging "that on April 26, 1973, Amado G. Garcia, a
property owner of Calamba, Laguna, died intestate in the City of Manila,
leaving real estate and personal properties in Calamba, Laguna, and in
other places, within the jurisdiction of the Honorable Court." At the same
time, she moved ex parte for her appointment as special administratrix
over the estate. Judge Malvar granted the motion.
A motion for reconsideration was filed by Preciosa B. Garcia, the
surviving spouse of the deceased, contending that
1) The decedent “resided” in QC for 3 months before his death as shown
by his death certificate.
2) The CFI of Calamba lacks jurisdiction over the petition.
CFI denied the motion. It ruled in favor of Garcia and annulled the
proceedings held before the CFI. Thus, Fule elevated the matter to the SC
on appeal by certiorari.
ISSUE/S:
What is meant by “residence” under Section 1, Rule 73 with respect to
the settlement of estates? Whether there was an improper venue.
HELD:
The term "resides" should be viewed or understood in its popular
sense, meaning, the personal, actual or physical habitation of a person,
actual residence or place of abode. It signifies physical presence in a place
and actual stay thereat. The term “residence” under Rule 73 is in reality,
merely a matter of venue, as the caption of the Rule indicates –
“Settlement of Estate of Deceased Persons, Venue and Processes.” xxx the
place of residence of the deceased in settlement of estates, probate of a
will, and issuance of letters of administration does not constitute an
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

element of jurisdiction over the subject matter. It is merely constitutive
of venue.
In the present case, SC ruled that the last place of residence last
place of residence of the deceased Amado G. Garcia was at 11 Carmel
Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna.
A death certificate is admissible to prove the residence of the decedent
at the time of his death. Aside from this, the deceased's residence
certificate for 1973 obtained three months before his death; 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, Inc.; the Deed of Donation
dated January 8, 1973, transferring part of his interest in certain parcels
of land in Calamba, Laguna to Agustina B. Garcia; and certificates of
titles covering parcels of land in Calamba, Laguna, show in bold
documents that Amado G. Garcia's last place of residence was at Quezon
City.
Withal, the conclusion becomes imperative that the venue for Virginia
C. Fule's petition for letters of administration was improperly laid in the
Court of First Instance of Calamba, Laguna. Nevertheless, the longsettled rule is that objection to improper venue is subject to waiver. But
in the case before Us the Court of Appeals had reason to hold that in
asking to substitute Virginia G. Fule as special administratrix, Preciosa B.
Garcia did not necessarily waive her objection to the jurisdiction or
venue assumed by the Court of First Instance of Calamba, Laguna, but
availed of a mere practical resort to alternative remedy to assert her
rights as surviving spouse, while insisting on the enforcement of the Rule
fixing the proper venue of the proceedings at the last residence of the
decedent.
Q What is the rule when the settlement of the estate of a
deceased resident are instituted in two or more courts, and
the question of venue is raised before the same?
A Section 1, Rule 73 on venue does not state that the court with whom
the in/testate petition is first filed acquires exclusive jurisdiction. The
Rule precisely and deliberately provides that "the court first taking
cognizance of the settlement of the estate of a decedent, shall
exercise jurisdiction 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, 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.
ROSA CUENCO vs. CA, MANUEL CUENCO, LOURDES CUENCO,
CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO,
CONSUELO CUENCO REYES, and TERESITA CUENCO GONZALEZ,
53 SCRA 360 (1973)
FACTS:
Senator Mariano Jesus Cuenco died at the Manila Doctors'
Hospital, Manila. He was survived by his widow, Rosa Cayetano Cuenco,
and their 2 minor sons all residing in Sta. Mesa Heights, Quezon City,
and by his children of the first marriage, respondents herein, all residing
in Cebu.
Lourdes Cuenco filed a Petition for Letters of Administration
with the court of first instance of Cebu, alleging among other things, that
the late senator died intestate in Manila; that he was a resident of Cebu
at the time of his death; and that he left real and personal properties in
Cebu and Quezon City. Later Rosa Cayetano Cuenco also filed a petition,
this time with the CFI of QC, for the probate of the deceased’s last will
and testament and for the issuance of letters testamentary in her favour,
as the surviving widow and executrix in the said last will and testament.
Having learned of the intestate proceeding in the Cebu court,
Rosa Cayetano Cuenco filed in said Cebu court an Opposition and Motion
to Dismiss, as well as an Opposition to Petition for Appointment of
Special Administrator. 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."
Lourdes Cuenco then filed in the Quezon City court an
Opposition and Motion to Dismiss opposing probate of the will and

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
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.
Said respondent prayed that the special proceedings before the QC court
be dismissed for lack of jurisdiction and/or improper venue.
The QC court denied the motion to dismiss, giving as a principal
reason the "precedence of probate proceeding over an intestate
proceeding." The said court further found in said order that the residence
of the late senator at the time of his death was in Sta. Mesa Heights,
Quezon City. If a party has two residences, 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. Deceased stated in
his last will and testament that he is a resident of Sta. Mesa Heights,
Quezon City, and also of the City of Cebu. He made the former as his first
choice and the latter as his second choice of residence.
Subsequently, the QC court admitted the will to probate. Lourdes
filed a special civil action of certiorari and preliminary injunction with the
CA. the CA ruled in favour of Lourdes, holding that Section 1, Rule 73,
which fixes the venue in proceedings for the settlement of the estate of a
deceased person, covers both testate and intestate proceedings. The Cebu
case having been filed ahead, it is that court whose jurisdiction was first
invoked and which first attached.
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, both of testate
and intestate estates." On the other hand, Rule 73, section 1 lays down
the rule of venue, as the very caption of the Rule indicates, and in order to
prevent conflict among the different courts which otherwise may properly
assume jurisdiction from doing so, the Rule specifies that "the court first
taking cognizance of the settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all other courts."
For purposes of determining what court has jurisdiction in the
settlement of the decedent’s estate, 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. The rule of venue does not state that the
court with whom the intestate or testate petition is first filed acquires
jurisdiction. The rule precisely and deliberately provides that "the court
first taking cognizance of the settlement of the estate of a decedent, shall
exercise jurisdiction 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, 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. Conversely, such 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, and that the allegation of the
intestate petition before it stating that the decedent died intestate may be
actually false, may decline to take cognizance of the petition and hold the
petition before it in abeyance, and instead defer to the second court which
has before it the petition for probate of the decedent's alleged last will.
Since the Quezon City court took cognizance over the probate
petition before it and assumed jurisdiction over the estate, with the
consent and deference of the Cebu court, the Quezon City court should be
left now, by the same rule of venue of said Rule 73, to exercise jurisdiction
to the exclusion of all other courts.
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. . . . 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. (Ongsingco vs. Tan)
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

TASIANA ONGSINGCO, Guardian of Francisco de Borja vs. CFI
Judge BIENVENIDO A. TAN and JOSE DE BORJA, 97 PHIL 330
(1955)
FACTS:
Tasiana Ongsingco is the wife and judicial guardian of one
Francisco de Borja who was declared incompetent. Francisco de Borja is
the surviving spouse of Josefa Tangco whose estate is being settled.
Jose de Borja is the son of Francisco de Borja, who was appointed
administrator of the estate of Josefa Tangco. Francisco de Borja,
according to petitioner, is the owner of two parcels of land situated in
Santa Rosa, Nueva Ecija, which he acquired by inheritance from his late
father Marcelo de Borja and as such form part of his separate properties.
As such guardian, 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. Meanwhile, Jose de
Borja, as administrator of the estate of Josefa Tangco, 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.
A dispute arose as to the ownership of said parcel of land. On the
one hand, petitioner claims that they belong exclusively to her ward
having inherited them from his late father Marcelo de Borja. While on the
other hand, respondent administrator contends that they are not the
lands adjudicated to the incompetent by the commissioners on partition.
The parties made several attempts to arrive at an agreement as to the
identity of the disputed lands, but they failed, and as there was a
pressing need of immediately threshing the crops, petitioner filed an
action in the CFI of Nueva Ecija to determine title and ownership of said
lands. The Nueva Ecija court issued a preliminary injunction restraining
respondent administrator for interfering with the administration of said
properties. Such action notwithstanding respondent administrator for
interfering with the administration of said properties. Such action
notwithstanding respondent court issued the 2 orders in question
prohibiting petitioner from continuing possession of said partials of lands.
These orders not only go into the issue of ownership but render
ineffective the writ of injunction issued by the CFI of Nueva Ecija. Hence,
this petition.
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.
HELD:
NO. It is a well-settled rule in this jurisdiction, sanctioned and
reiterated in a long line of decisions that, "the question of ownership of
property is one which should be determined in an ordinary action and
not in probate proceedings, and this whether or not the property is
alleged to belong to the estate". In another case, it was held that "The
general rule is that questions as to title to property cannot be passed
upon in testate or intestate proceedings", or stating the rule more
elaborately, "When questions arise as to the 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, but by title adverse to that of the
deceased and his estate, such questions cannot be determined in the
courts of administrative proceedings. The Court of First Instance, acting
as a probate court, has no jurisdiction to adjudicate such contentions,
which must be submitted to the court in the exercise of its general
jurisdiction as a court of first instance."
In the settlement of the estate of a decedent, 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, said provision of the Rules of Court evidently
refers to cases triable before two or more courts with concurrent
jurisdiction. It could not possibly have intended to deprive a competent
court of the authority vested therein by law, merely because a similar
case had been previously filed before a court to which jurisdiction is
denied by law, for the same would then be defeated by the will of one of

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
the parties. More specially, said provision refers mainly to non-resident
decedents who have properties in several provinces in the Philippines, for
the settlement of their respective estates may undertaken before the court
of first instance of either one of said provinces, not only because said
courts then have concurrent jurisdiction — and, hence, the one first taking
cognizance of the case shall exclude the other courts — but, also, 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,
which deals with non-resident decedents, whose estate may settled the
court of first instance of any province in which they have properties.
(Eusebio vs. Eusebio)
In the Matter of the Intestate of the deceased Andres Eusebio.
EUGENIO EUSEBIO, vs. AMANDA EUSEBIO, JUAN EUSEBIO,
DELFIN EUSEBIO, VICENTE EUSEBIO, and CARLOS EUSEBIO, 593
PHIL 593 (1956)
FACTS:
Eugenio Eusebio filed with the Court of First Instance of Rizal, a
petition for his appointment as administrator of the estate of his father,
Andres Eusebio, who died on November 28, 1952, residing, according to
said petition, in the City of Quezon. Amanda, Virginia, Juan, Delfin, Vicente
and Carlos, all surnamed Eusebio, objected to said petition, stating that
they are illegitimate children of the deceased and that the latter was
domiciled in San Fernando, Pampanga, and praying, therefore, that the
case be dismissed upon the ground that venue had been improperly filed.
The court overruled this objection and granted said petition. Hence, the
case is before us on appeal taken, from said order, by Amanda Eusebio,
and her aforementioned sister and brothers.
ISSUE/S:
Whether venue was properly laid in the CFI of Rizal.
HELD:
NO. In granting the court first taking cognizance of the case exclusive
jurisdiction over the same, said provision of the Rules of Court evidently
refers to cases triable before two or more courts with concurrent
jurisdiction. It could not possibly have intended to deprive a competent
court of the authority vested therein by law, merely because a similar case
had been previously filed before a court to which jurisdiction is denied by
law, for the same would then be defeated by the will of one of the parties.
More specially, said provision refers mainly to non-resident decedents who
have properties in several provinces in the Philippines, for the settlement
of their respective estates may undertaken before the court of first
instance of either one of said provinces, not only because said courts then
have concurrent jurisdiction — and, hence, the one first taking cognizance
of the case shall exclude the other courts — but, also, 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,
which deals with non-resident decedents, whose estate may settled the
court of first instance of any province in which they have properties.
Q Once the court assumes jurisdiction, can it be deprived of its
jurisdiction?
A NO. The Judge or Court of First Instance where the deceased was
residing at the time of his death, 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; 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.
! 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.
LUZ MARQUEZ DE SANDOVAL vs. CFI Judge VICENTE SANTIAGO,
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
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Daniel Marquez in which she was designated as executrix. 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. 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 P5,000. 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. 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, on the ground that the probate proceedings
having been commenced judicially it must also be terminated judicially. A
motion for reconsideration was filed by the petitioner and denied by the
court hence, the filing of the present petition for certiorari.
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. The respondent Judge or CFI of Quezon Province, wherein
the deceased was residing at the time of his death, 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; 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.
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; 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, 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,of Rule 74, that is, subject to the claims against the
distributees by persons mentioned in sections 4 and 5, of the same rule.
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.
Q Is judgment or orders in special proceedings subject to
collateral attack?
A NO. 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. The
remedy of the aggrieved party is to appeal from such order or
judgment, or if final, to apply for relief under Rule 38, which is also
applicable to special proceedings.
Q Can jurisdiction assumed by the court be contested or
questioned?
A The jurisdiction assumed by a Court of First Instance, for the
settlement of an estate, so far as it depends on the place of residence
of a person, or of the location of his estate, shall not be contested in
a suit or proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the record.
(Vda. De Manzanero vs. CFI of Batangas)

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

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
and Constancio Maloto allegedly have shares in said with which are bigger,
different and more valuable than what they obtained in the extrajudicial
partition. The said will also allegedly made dispositions to certain devisees
and/or legatees, among whom being the Asilo de Molo, the Roman
Catholic Church of Molo, and Purificacion Miraflor.
Aldina Maloto Casiano and Constancio Maloto filed a motion (1) for
reconsideration; (2) annulment of the proceedings; and (3) for the
allowance of the last will and testament of Adriana Maloto. The Asilo de
Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor also
filed petitions for the allowance of the will of Adriana Maloto. The presiding
judge denied the motions.
The petitioners filed a petition for certiorari and mandamus with the
Supreme Court. 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. Thereupon, petitioners
commenced a separate special proceeding for the probate of the alleged
last will and testament of Adriana. Panfilo and Felino filed an opposition
with a motion to dismiss alleging among others, that the will sought to be
probated had been destroyed and revoked by the testatrix.
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. Hence,
the petition for probate is now barred by the order in the intestate
proceeding.
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.
HELD:
NO. The probate court had no jurisdiction to entertain the petition for
the probate of the alleged will of Adriana Maloto in an intestate
proceeding. It is not proper to make a finding in an intestate estate
proceeding that the discovered will has been revoked. 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.

Marciano Cuizon. In that same year, TCT covering the property in
question was issued by the Register of Deeds to Irene Cuizon. The latter
died in 1978.
In the extrajudicial settlement of the estate Rufina adjudicated to
herself all the property of the decedent including the property in
question. After the notice of the extrajudicial settlement was duly
published in a newspaper of general circulation, Rufina thereafter,
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, interest, and participation she may have in the
property in question in favor of the petitioners. The deed was duly
registered with the Registry of Deeds and annotated at the back of TCT.
Subsequently, a new TCT was issued in favor of the petitioners.
Domingo Antigua, allegedly selected by the 17 heirs of Irene to act
as administrator of the estate of the latter, filed an inventory of said
estate. He included the property in question which was being
administered by Juan Arche, one of the petitioners. 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.
The petitioners contend (1) that that the respondent court, as a
court handling only the intestate proceedings, 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; (2) that the proper remedy of the respondent
administrator is to file a separate civil action to recover the same.
Antigua, 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; and (2) the deed of sale of December 29, 1971 lost its efficacy
upon the rendition of judgment and issuance of the decree in favor of
Irene Cuizon.
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.

FRANCISCO CUIZON, ROSITA CUIZON, PURIFICATION C. GUIDO
married to TEODORO GUIDO, and JUAN ARCHE vs. CFI Judge
JOSE R. RAMOLETE, DOMINGO L. ANTIGUA and SEGUNDO
ZAMBO, 129 SCRA 495 (1984)

HELD:
NO. 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. 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. If there is no dispute, well and good;
but if there is, then the parties, the administrator, 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.
The property in question being in the possession of third parties
and more important, covered by a transfer certificate of title issued in
the name of such third parties, 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. It had no
authority to deprive such third persons of their possession and
ownership of the property. Respondent court was clearly without
jurisdiction to issue the order of June 27, 1979. Thus, it was unnecessary
for the petitioners to first apply for relief with the intestate court.

FACTS:
In 1970, pending the registration of several parcels of land, Mariano
Cuizon distributed his property between his two children, Rufina and Irene.
Part of the property given to Irene consisted largely of salt beds which
eventually became the subject of this controversy.
In 1971, Irene Cuizon executed a Deed of Sale with Reservation of
Usufruct involving the said salt beds in favor of Francisco, Rosita and
Purificacion, all surnamed Cuizon. At that time, Francisco and Rosita were
minors and assisted by their mother, Rufina, only sister of Irene. However,
the sale was not registered because the petitioners felt it was unnecessary
due to the lifetime usufructuary rights of Irene. A decree of registration
and the corresponding OCT was issued only in 1976 in the name of

Q Is there any exception to this rule?
A While as a general rule, question as to title to property cannot be
passed upon on testate or intestate proceedings," except where one
of the parties prays merely for the inclusion or exclusion from the
inventory of the property, in which case the probate court may pass
provisionally upon the question without prejudice to its final
determination in a separate action. However, we have also held that
when the parties interested are all heirs of the deceased, it is optional
to them to submit to the probate court a question as to title to
property, and when so submitted, said probate court may definitely
pass judgment thereon; and that with the consent of the parties,
matters affecting property under judicial administration may be taken

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?
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. 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. If there is no dispute, well and
good; but if there is, then the parties, the administrator, 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. (Cuizon vs. Ramolete)

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Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
cognizance of by the court in the course of intestate proceeding,
provided interests of third persons are not prejudiced (Bernardo vs. CA)
DEOGRACIAS BERNARDO, executor and the instituted heirs,
namely: ARMANDO CAPILI and ARTURO BERNARDO, ET AL., vs.
CA and THE HEIRS OF THE LATE HERMOGENA REYES, namely:
FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL.,
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, his
widow. His will was admitted to probate, disposing of his properties in
favor of his widow; his cousins Armando, Ursula, and Buenaventura, all
surnamed Capili; and Arturo, Deogracias and Eduardo, all surnamed
Bernardo. Hermogena Reyes subsequently died. Upon petition of
Deogracias Bernardo, executor of the estate of the deceased Eusebio
Capili, she was substituted by her collateral relatives and intestate heirs,
namely, Marcos, Vicente, Francisco and Dominga, all surnamed Reyes; and
Jose, Constancia, Raymunda and Elena, all surnamed Isidoro.
The executor filed a project of partition in the testate proceeding in
accordance with the terms of the will, adjudicating the estate of Eusebio
Capili among the testamentary heirs with the exception of Hermogena
Reyes, whose share was alloted to her collateral relatives. These collateral
relatives filed an opposition to the executor's project of partition and
submitted a counter-project of partition of their own, 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.
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, because
Hermogena Reyes had donated to him her half share of such partnership;
(2) that the collateral heirs of Hermogena Reyes had no lawful standing or
grounds to question the validity of the donation; and (3) that even
assuming that they could question the validity of the donation, the same
must be litigated not in the testate proceeding but in a separate civil
action.
The oppositors and heirs of Hermogena Reyes, on their part, argued
that the deed of donation itself was determinative of the original conjugal
character to the properties, aside from the legal presumption laid down in
Article 160 of the Civil Code, 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.
The probate court declared the donation as void. Said court also
disapproved both projects of partition and ordered Bernardo to file another
one. On appeal, 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.
ISSUE/S:
Whether the probate court, having limited and special jurisdiction,
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.
HELD:
While as a general rule, question as to title to property cannot be
passed upon on testate or intestate proceedings," except where one of the
parties prays merely for the inclusion or exclusion from the
inventory of the property, in which case the probate court may pass
provisionally upon the question without prejudice to its final determination
in a separate action. However, when the parties interested are all heirs of
the deceased, it is optional to them to submit to the probate court a
question as to title to property, and when so submitted, said probate court
may definitely pass judgment thereon; and that with the consent of the
parties, matters affecting property under judicial administration may be
taken cognizance of by the court in the course of intestate proceeding,
provided interests of third persons are not prejudiced. 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.
This is so because the purpose of the administration proceeding is the
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liquidation of the estate and distribution of the residue among the heirs
and legatees.
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. 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, including, of course, the widow, now represented
because of her death, by her heirs who have been substituted upon
petition of the executor himself and who have appeared voluntarily.
There are no third parties whose rights may be affected. It is true that
the heirs of the deceased widow are not heirs of the testator-husband,
but the widow is, in addition to her own right to the conjugal property.
And it is this right that is being sought to be enforced by her substitutes.
Therefore, the claim that is being asserted is one belonging to an heir to
the testator and, consequently, it complies with the requirement of the
exception that the parties interested (the petitioners and the widow,
represented by dents) are all heirs claiming title under the testator.

(
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( probate( courts( acquires( jurisdiction( from( the(
moment(the(petition(for(the(settlement(of(estate(is(filed(with(said(
court.(It(cannot(be(divested(of(such(jurisdiction(by(the(subsequent(
acts(of(the(parties(as(by(entering(into(extrajudicial(partition(of(the(
estate.(
(
Exception,(Estoppel(by(Laches(
(
Remedy&if&Venue&is&Improperly&Laid(
General&Rule(:(ORDINARY(APPEAL(not(certiorari(or(mandamus(
(
Exception,(If(want(of(jurisdiction(appears(on(the(record(of(the(case(
(Rules(73(
Sec. 2. Where estate settled upon dissolution of marriage. When the marriage is dissolved by the death of the husband or wife, the
community property shall be inventoried, administered, and liquidated,
and the debts thereof paid, in the testate or intestate proceedings of the
deceased spouse. If both spouses have died, the conjugal partnership
shall be liquidated in the testate or intestate proceedings of either.

Related&Family&Code&Provisions:(
(
(Art.& 103.( Upon( the( termination( of( the( marriage( by( death,( the(
community(property(shall(be(liquidated(in(the(same(proceeding(for(
the(settlement(of(the(estate(of(the(deceased.(
If( no( judicial( settlement( proceeding( is( instituted,( the(
surviving( spouse( shall( liquidate( the( community( property( either(
judicially(or(extradjudicially(within(six(months(from(the(death(of(the(
deceased( spouse.( If( upon( the( lapse( of( the( six( months( period,( no(
liquidation(is(made,(any(disposition(or(encumbrance(involving(the(
community(property(of(the(terminated(marriage(shall(be(void.(
Should( the( surviving( spouse( contract( a( subsequent(
marriage( without( compliance( with( the( foregoing( requirements,( a(
mandatory(regime(of(complete(separation(of(property(shall(govern(
the(property(relations(of(the(subsequent(marriage.((n)(

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua

Art.&104.(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,(the(respective(
capital,( fruits( and( income( of( each( community( shall( be( determined(
upon( such( proof( as( may( be( considered( according( to( the( rules( of(
evidence.( In( case( of( doubt( as( to( which( community( the( existing(
properties(belong,(the(same(shall(be(divided(between(the(different(
communities( in( proportion( to( the( capital( and( duration( of(
each.((189a)((
Art.& 130.( 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.(
If( no( judicial( settlement( proceeding( is( instituted,( the(
surviving( spouse( shall( liquidate( the( conjugal( partnership( property(
either(judicially(or(extradjudicially(within(six(months(from(the(death(
of(the(deceased(spouse.(If(upon(the(lapse(of(the(sixdmonth(period(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,( a(
mandatory( regime( of( complete( separation( of( property( shall( govern(
the(property(relations(of(the(subsequent(marriage.((n)(
Art.& 131.( 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,(the(
respective( capital,( fruits( and( income( of( each( partnership( shall( be(
determined(upon(such(proof(as(may(be(considered(according(to(the(
rules( of( evidence.( In( case( of( doubt( as( to( which( partnership( the(
existing( properties( belong,( the( same( shall( be( divided( between( the(
different( partnerships( in( proportion( to( the( capital( and( duration( of(
each.((189a)(
Art.& 132.( The(Rules( of( Court(on( the( administration( of( estates( of(
deceased( persons( shall( be( observed( in( the( appraisal( and( sale( of(
property( of( the( conjugal( partnership,( and( other( matters( which( are(
not(expressly(determined(in(this(Chapter.((187a)(
Art.&133.&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;(but(from(this(shall(be(deducted(that(amount(received(for(
support(which(exceeds(the(fruits(or(rents(pertaining(to(them.((188a)((
• (In(the(settlement(proceedings(of(the(estate(of(the(deceased(

spouse,(the(entire(conjugal(partnership(property(of(the(marriage(
and(not(just(the(onedhalf(portion(belonging(to(the(deceased,(is(
under(administration.(
(
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Q When both spouses have died, where should the conjugal
partnership be liquidated?
A Act No. 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. But whatever law might be applicable, and even
assuming that it was that prior to Act No. 3176, the intestate of
Ramon del Rosario not having been commenced upon his death in
1895 until his widow Florencia Arcega also died in 1933, and the
testamentary proceedings of Florencia Arcega having been
subsequently initiated, wherein, among other things, the liquidation of
her conjugal properties with the deceased Ramon del Rosario should
be made, the pendency of these testamentary proceedings of the
deceased wife excludes any other proceeding aimed at the same
purpose. (Del Rosario vs. Del Rosario)
JULIA DEL ROSARIO, ET AL. vs. ANTONIO DEL ROSARIO, ET AL.,
67 PHIL 652 (1939)
FACTS:
Ramon del Rosario and Florencia Arcega were husband and wife.
Ramon died in 1895. In his will, he left Florencia the properties of the
conjugal partnership valued at
19,000. after his death, Florencia
administered these properties and with the products thereof, acquired
others. Moreover, after Ramon’s death, his testate was not commenced
and the conjugal properties were not liquidated until Florencia’s death in
1933, after which the latter’s testamentary proceedings were initiated
and now in progress.
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.
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; that there is a defect or party plaintiffs and party
defendants, and that the complaint does not allege facts sufficient to
constitute a cause of action.
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.
HELD:
The parties discuss whether Act No. 3176, or the former law, is
applicable to the case. Act No. 3176 only amends the former law in the
sense that upon the death of any of the spouses the community property
shall be liquidated in the testamentary or intestate proceedings of the
deceased spouse. But whatever law might be applicable, and even
assuming that it was that prior to Act No. 3176, the intestate of Ramon
del Rosario not having been commenced upon his death in 1895 until his
widow Florencia Arcega also died in 1933, and the testamentary
proceedings of Florencia Arcega having been subsequently initiated,
wherein, among other things, the liquidation of her conjugal properties
with the deceased Ramon del Rosario should be made, the pendency of
these testamentary proceedings of the deceased wife excludes any other
proceeding aimed at the same purpose. At any rate, 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.
In the matter of the will of the deceased Paulino Diancin.
TEOPISTA DOLAR, OLIMPIA, RITA, JOSEFINA and ROSARIO
DIANCIN, vs. ROMAN CATHOLIC BISHOP OF JARO,
68 PHIL 727 1939)
FACTS:
Paulino Diacin married Margarita Doctura with whom he had 5
children of whom 3 are alive. The 2 children who died left 3 children
each.
Paulino entered into a second marriage with Teopista Dolar with
whom he had 4 children. Paulino acquired certain properties during his
first marriage and still others during his second. He left a will before he

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
died wherein he sets out all his properties and distributes them among his
widow Teopista Dolar and his heirs by both marriages. He also left a
legacy of P8,000 to be spent for the altar of the church under construction
in the Municipality 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. The first was disapproved
because of the objection of several of the heirs. The second was also
disapproved because of the objection of the representative of the church
of Dumangas. The court then ordered the administratrix, Teopista Dolar, to
take possession of the properties and deliver the legacy to the church.
From this resolution Dolar and the heirs of the second marriage appealed.
ISSUE/S:
Whether all the heirs must agree before a partition is to be effected.
HELD:
YES. Unless the widow Teopista Dolar, the heirs of the deceased by his
two marriages, the representative of the legacy for P8,000, and the
creditors of the estate, otherwise come to an agreement, the partition
should be made with the intervention of all the interested parties according
to law. The procedure for the partition of the decedent’s estate is as
follows:
1) All the debts and administration expenses shall first be paid.
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.
3) The properties of the deceased both from the first and second
marriage shall be partitioned among the heirs.
4) The legacy to the church must be taken out of the free portion,
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.
Q Upon the death of one of the spouses, where should the
liquidation of the conjugal partnership be made? Who is
charged with such liquidation?
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. (Alfonso vs. Natividad)
HERMENEGILDO ALFONSO vs. PEDRO NATIVIDAD, ET AL.,
6 PHIL 240 (1906)
FACTS:
Angeles and Tomasa got married and during their marriage, Tomasa
acquired legal title to the tract here in question. Angeles and Tomasa
executed a document wherein they pledged this property to Natividad in
consideration of a loan. Angeles died after the execution of the document.
Tomasa followed thereafter. Natividad then took possession of the land,
allegedly to wait for one of the heirs to pay the debt due to him.
Alfonso, as administrator of the estate of Angeles, 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, its affairs should by law be settled by representatives of the
deceased and that he is such representative who seeks to recover the
land.
Natividad claims that the property was not the property of the
conjugal partnership, but was the separate property of Tomasa bought by
her separate money. Hence, Alfonso has no right to recover said property.
ISSUE/S:
Whether the land in question was conjugal.
HELD:
CONJUGAL. There is no evidence to show what source the money came
from which was used to buy the land. Under our laws, the conjugal
partnership ceases upon the dissolution of the marriage. Hence, upon the
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death of one of the spouses, and before the property of the
deceased can be adjudicated to his or her heirs, 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, or in
the absence thereof, in the proceedings for the settlement of the estate
of the surviving spouse, upon the latter’s demise.
Q Must liquidation be made in a special proceeding for the
settlement of the estate of the deceased?
A NO. When there are no debts to pay, the liquidation and partition of
the property of the conjugal partnership, dissolved by the death of
one of the spouses, may be made in an ordinary action instituted
for that purpose. (Cruz vs. De Jesus)
DONATO CRUZ, ET AL. vs. TEOFILO DE JESUS, ET AL.,
52 PHIL 870 (1929)
FACTS:
Donato Cruz’ wife died. Donato then filed an action for
partition of their conjugal estate. Such action involved properties which
were in the possession of Donato long before his wife died. Further, the
estate had no debts. Donato then filed a motion to amend his complaint
from “partition” to “liquidation and partition.” Such was denied by the
lower court holding that the proper action was that of either testate or
intestate proceedings.
ISSUE/S:
Whether an action lies for the liquidation and partition of the
conjugal property.
HELD:
YES. When there are no debts to pay, the liquidation and partition
of the property of the conjugal partnership, dissolved by the death of
one of the spouses, may be made in an ordinary action instituted for that
purpose.
Hence, the law establishes 2 methods of liquidating the property of
a conjugal partnership. 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.
Since the complaint for partition alleges that there are no debts to
pay, and as it does not appear that there are any, said action will lie. For
while it is true that it prays for a liquidation of the property of the
conjugal partnership, said liquidation is implied in the action for partition.
Q In liquidating the conjugal partnership, what is the basis in
making an inventory of the conjugal property?
A In liquidating a conjugal partnership, an inventory of the actual
property possessed by the spouses at the time of the dissolution must
be made. 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. (De la Rama vs. De la
Rama)
AGUEDA BENEDICTO DE LA RAMA vs. ESTEBAN DE LA RAMA,
7 PHIL 745 (1907)
FACTS:
Esteban dela Rama claims that upon the dissolution of the
conjugal property, he is entitled to 81,387.76 based on the income of
profits earned by the partnership prior to the dissolution.
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.
HELD:
NO. The civil code provides that upon dissolution of the conjugal
partnership an inventory on all conjugal properties shall at once be

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
made. After deductions (dowries, debts, etc.) then the remainder is to be
divided equally between the spouses.
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.
In liquidating a conjugal partnership, an inventory of the actual
property possessed by the spouses at the time of the dissolution
must be made. 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.
Q Is inventory and liquidation always necessary?
A NO. When the interested parties have already reached a compromise,
whereby for valuable consideration, the widow renounced in favor of
the children all her interest and rights in the estate of the deceased as
well as her participation in the conjugal partnership, it is no longer
necessary to prepare an inventory of the conjugal properties and make
a liquidation. (VDA. DE VILLACORTE vs. MARIANO)
CONCEPCION VDA. DE VILLACORTE, ET AL. vs. MACARIA E.
MARIANO, 89 PHIL 342 (1951)
FACTS:
During his lifetime Leon Calimon married thrice. His first marriage
with Adriana Carpio gave him 4 daughters named Canuta, Tranquilina,
Maria and Enriqueta. A widower in 1898, the next year he married
Venancia Inducil, who lived only 10 months thereafter, leaving him no
child. She had, however, a son by previous marriage: Tiburcio Villacorte. In
July 1902 Leon Calimon took a third wife, Macaria E. Mariano. She bore
him no offspring; but survived him when he passed away.
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. Mariano. Plaintiffs averred
that the properties belonged to their predecessor in interest, Venancia
Inducil. Defendants, in 2 separate answers, claimed that the lots were
owned exclusively by Leon Calimon.
10 months afterwards Macaria E. Mariano amended her answer to
assert that all the realties had been acquired during her coverture with
Leon Calimon, and also to interpose a crossclaim against her codefendants, the heirs of Leon Calimon by the first marriage, demanding
the recognition of her rights as surviving spouse, to such conjugal
partnership property. In this connection she affirmed that thru deceit and
intimidation she had signed three documents assigning to her codefendants (cross-defendants) her lawful participation in the conjugal
assets in exchange for certain properties alloted to her. The crossdefendants countered with the assertion that some of the properties
belonged to them, and all the rest to their father Leon Calimon, and that
Macaria E. Mariano had voluntarily and validly signed the documents
mentioned in her cross-claim.
Deciding the controversy, court reached the conclusion that the three
documents were valid and binding, 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. The cross-defendants were
absolved from the cross-complaint.
Macaria now claims that it was error for the lower court to adjudge
the controversy upon the strength of the above mentioned exhibits,
without previously requiring an inventory and liquidation of the conjugal
properties of the deceased Leon Calimon and the cross-plaintiff.
ISSUE/S:
Whether the lower court should have required an inventory and
liquidation of the conjugal properties before adjudging the controversy.

provision of article 1418 of the Civil Code, inventory shall not be required
if, after the partnership has been dissolved, one of the spouses, or his or
her successors shall have renounced its effects.
Q Upon dissolution of the conjugal partnership by reason of the
death of one spouse, from whom may conjugal debts be
recovered?
A The husband, having ceased to be the administrator of the conjugal
property had with his wife, upon the latter’s demise, 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. (Calma vs.
Toledo)
MARIA CALMA vs. ESPERANZA TAÑEDO and BARTOLOME
QUIZON, Deputy Sheriff of Tarlac, 66 PHIL 594 (1936)
FACTS:
The spouses Eulalio Calma and Fausta Macasaquit were the owners of
the property described in the complaint, being their conjugal property.
They were also indebted to Esperanza Tañedo, chargeable against the
conjugal property, in the sums of P948.34 and P247, with interest
thereon at 10 per cent per annum. On October 10, 1933, Fausta
Macasaquit died leaving a will wherein she appointed her daughter,
Maria Calma, as administratrix of her properties. Upon the
commencement of the corresponding probate proceedings in the Court
of First Instance of Tarlac, the said daughter, Maria Calma, was
appointed judicial administratrix of the properties of the deceased.
While these probate proceedings of the deceased Fausta
Macasaquit were pending, Esperanza Tanedo filed a complaint against
Eulalio Calma for the recovery of the sums of P948.34 and P247. The CFI
of Tarlac rendered judgment for the payment of this sum. In the
execution of this judgment, despite the third party claim filed by Fausta
Macasaquit, the property described in the complaint was sold by the
sheriff.
Maria Calma, as administratrix of the estate of Fausta Macasaquit,
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.
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, Act no. 3176. In the
case at bar, 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 Fausta Calma having ceased to be the legal administrator
of the conjugal property had with his wifre, Fausta, upon the latter’s
death, no complaint can be brought against him in an ordinary action for
the recovery of the debt chargeable against the conjugal property. The
action for this purpose should have been instituted in the testamentary
proceedings of the deceased wife in the manner provided by law, filing
the claim with the committee on claims and approval.
PAZ Y. OCAMPO, JOSEFA Y. OCAMPO, ISIDRO Y. OCAMPO, GIL
Y. OCAMPO, MAURO Y. OCAMPO, and VICENTE Y. OCAMPO vs.
CONRADO POTENCIANO, VICTOR POTENCIANO and LOURDES
POTENCIANO, 89 PHIL 160 (1951)
FACTS:

HELD:
NO. It was unnecessary to prepare the inventory and make the
liquidation because the parties interested, i.e., the heirs of Leon Calimon
and his widow had already reached a compromise by means of Exhibit 1Mariano. And supposing that all those lots were community property, still
the said exhibit governs the rights of the parties. A similar documents of
renunciation was held valid and binding in Antonio vs. Aloc. And under the
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

Edilberto Ocampo, married to Paz Yatco, executed a deed
purporting to convey to his relative, Conrado Potenciano, and the latter's
wife, Rufina Reyes, by way of sale with pacto de retro for P2,5000, a
town a lot with a house standing thereon. On that same day, Ocampo
signed another document, making it appear that, for an annual rental of
P300 equivalent to 12% of the purchase price, the vendees were leasing
to him the house and lot for the duration of the redemption period.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Several extensions were granted. The last extension granted was
for year from February 3, 1937, and the period having elapsed without the
repurchase having been made, Potenciano filed with the register of deeds
of Laguna an affidavit for the consolidation of title, on the strength which
the register of deeds issued TCT in the name of Potenciano and his wife.
This, however, did not close the avenue for settlement. With Edilberto
Ocampo and Rufina Reyes already dead, Potenciano gave Paz Yatco an
option to repurchase the property for P2,500 within 5 years, and a lease
thereon for the same period of time at annual rental of P300 which, as
may again be noted, is equivalent to 12% of the purchase price.
On February 7, 1944, Paz Yatco sought to exercise the option by
tendering to Potenciano at his clinic in Manila the sum of P4,000 an
amount sufficient to cover both principal and interest, and upon the tender
being rejected, 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.
Intervening in the case, Potenciano's children, Victor and
Lourdes, filed a cross-complaint, alleging that the option to purchase
granted by their father to plaintiff on February 28, 1939, was null and void
as to the share of their deceased mother Rufina Reyes in the property in
litigation, which share passed to them by right of inheritance, the
intervenors, were exercising the right of redemption accorded by law to
co-owners of property held in common
The Court of First Instance, after trial, upheld these allegations
and gave judgment in favor of the children of Edilberto Ocampo and Paz
Yatco, who had substituted the latter after her death.
ISSUE/S:
Whether CA erred in ruling that the husband had authority to
enter into such agreement as administrator of the conjugal estate.
HELD:
The Court of Appeals erred in supposing that the surviving spouse
had such authority as de facto administrator of the conjugal estate. Section
2, Rule 75, of the Rules of Court provides that when the marriage is
dissolved by the death of either husband or wife, the partnership affairs
must be liquidated in the testate or intestate proceedings of the deceased
spouse.
Also, 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. It follows from the foregoing that at the time Paz Yatco
made the tender of payment and consigned the necessary amount in
court, the said contract of loan with security was still in effect, and as the
tender was made in legal currency, the tender and consignation must be
held to produce their legal effect, which is that of relieving the debtor from
liability. Hence, since ownership in the property never passed to their
parents, these appellants (intervenors) acquired nothing.
Q What is the basis in the appraisal of real property?
A In appraising the real property of the conjugal partnership, it is NOT the
purchase price, but the market, or default thereof, the assessed
value at the time of the liquidation that must be taken into
account. (Prado vs. Natividad)
JOSE M. PRADO vs. 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. Maria Prado did not bring
anything. During the marriage the spouses acquired on different dates real
and personal properties. On April 27, 1904, Maria Prado died from
pulmonary tuberculosis in Manila, where she had been taken for
treatment.
Jose Maria Prado, in his capacity as administrator of the estate of
Maria Prado, filed a complaint in the CFI of Camarines Sur against
Casimiro, 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, decreeing the liquidation of said partnership, adjudicating to
the plaintiff administrator one-half of the conjugal property with its
products.
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

Casimiro Natividad alleged that the estate of the conjugal
partnership constituted between him and his deceased wife Maria Prado
had already been liquidated, no conjugal property having been found to
exist, but a loss of P10,000.
The lower court rendered judgment, holding that no residue existed
which should be divided between the husband and the heirs, and
dismissing the complaint. 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, and not of its liquidation and the fact of its having
taken into consideration the supposed debt of P17,428.98.
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, it is
not the purchase, but the market, or in default thereof, the assessed,
value at the time of the liquidation that must be taken into account.
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, the total value thereof amounts to P10,853.40.
Q Who determines the sufficiency of the evidence of the value
of the conjugal property?
A The admission in evidence without objection, of the inventory
purporting to set forth the amount and value of certain property,
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, and where other evidence as to its amount and
the value has been submitted. In such case, the document is
admitted for what is worth as evidence, 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.
AGUEDA BENEDICTO DE LA RAMA vs. ESTEBAN DE LA RAMA, 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, the division of the conjugal property, and alimony
pendente lite. Court ruled against the defendant by granting a divorce,
dissolving the conjugal partnership, and allowing plaintiff the sum of
P81,042.76 as her share of the conjugal property, and P3,200 as
alimony.
The defendant appealed to this court, which ruled that as both had
committed adultery, neither was entitled to a divorce. Plaintiff appealed
to the US SC which reversed the ruling of the Phil SC.
US SC held that no such preponderance of evidence is present to
hold that the wife was also guilty of adultery. The issue of the division of
the conjugal property was not, therefore, passed upon. 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.
The 6th assignment of error deals with the fixing the amount of the
half of said alleged conjugal property at P81,042.75, without having
examined the necessary antecedents and data, and, moreover, without
having taken into account the losses suffered and the debts contracted
by the firm. In disposing of this issue, the disregarded inventory
submitted modified its original judgment and awarded only 58,543.37.
From this decision arose as both the plaintiff and defendant took
exception to the above ruling.
Plaintiff contends that the original judgment of the CFI should be
affirmed. 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.
ISSUE/S:
Whether the CFI erred in its valuation of the conjugal property and
the procedure it adopted in liquidating the partnership assets.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
HELD:
NO. The admission in evidence without objection, 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. In such
case, the document is admitted for what is worth as evidence, 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.
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,
of the nature of paraphernalia, has been included among the property
of the conjugal partnership, a claim or demand for its segregation on
the part of its legitimate owner can only be 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, or that it
belongs exclusively to a widow, the same must be deemed to be
conjugal partnership property and liable for the debts and obligations of
the partnership, saving always the right of the said widow to have her
own personal property of every kind excluded. (Fulgencio vs. Gachalian)
JOSEFA FULGENCIO & FERNANDO FULGENCIO vs. BENITA
GATCHALIAN, ET AL., 21 PHIL 252 (1912)
FACTS:
Josefa Fulgencio, the administratrix of the intestate estate of Dionisio
Fulgencio, filed with the CFI of Pangasinan a written complaint against
Benita Gatchalian, Petrona Clavo, Emeteria Cristobal, Leoncia Belen, and
Gabriela Lopez alleging that
1) by virtue of letters of administration, issued in her behalf, 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;
2) that Benita Gatchalian was appointed administratrix, conjointly with
the plaintiff, of the estate of the said deceased, the required letters of
administration having been issued to her, although Gatchalian
tendered her resignation as administratrix, which was accepted by the
court, wherefore the plaintiff was the sole party upon whom it was
incumbent by law to fulfill the said office;
3) that the defendants Petrona, Emeteria, 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, legally married, in second wedlock, the Benita
Gatchalian, with whom he did not have any surviving or posthumous
child, and left only one legitimate son, by his first marriage, named
Fernando Fulgencio, on marrying Gatchalian, brought the sum of 2,500
pesos Mexican currency as shown as private property;
5) that the conjugal partnership of the deceased Fulgencio with the said
Gatchalian, and the aforementioned sum, produced, up to the time of
the husband's death, several thousands pesos, all the property of the
said partnership
6) that the property, with the exception of the said sum of 2,500 pesos
Mexican currency, was under the control and in the legal possession of
the Benita Gatchalian, Petrona Clavo, Emeteria Cristobal, Leoncia Belen
and Gabriela Lopez, and
7) that Gatchalian was, with the exception of such property, insolvent;
8) that a demand having repeatedly been made upon the defendants for
the friendly delivery by them of the said property, they categorically
refused to deliver the same
Defendants denied absolutely each and all of the facts alleged against
them in the complaint. As a special defense, Gatchalian added that Dionisio
Fulgencio, on his marriage with her, brought as property of his own only a
few articles from his drug store, amounting to the sum of 100 pesos; that
the defendant Gatchalian, on her marriage with the said deceased, brought
9,000 pesos in cash and 3,000 pesos in goods; that the profits obtained by
the widow Gatchalian, in the business in which she engaged with the said
sum, as well as with the 100 pesos brought in by her deceased husband,
were squandered by the latter in his lifetime in gambling, and that
consequently, the capital brought to the marriage by Gatchalian, far from
increasing, was considerably diminished; that all the property designated in
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the complaint, was acquired by the defendant Gatchalian with her own
funds, except those which were the subject matter of current accounts,
yet unsettled, with various commercial houses in Manila.
The lower court then required Benita to surrender possession of the
properties subject of the complaint.
ISSUE/S:
Whether the wife’s paraphernal property must be included in the
settlement of the husband’s estate
HELD:
YES. It has not been conclusively proven that the property claimed
by the administratrix is paraphernalia and belongs exclusively to the
defendant Benita Gatchalian. As such they are deemed to be conjugal
partnership property, liable for the debts of the conjugal partnership,
and therefore, the administratrix has a right to be placed in possession
of the same for the purpose of its inventory in the special proceedings,
without prejudice to the rights of the widow Benita Gatchalian in relation
to her own property or to that of the nature of paraphernalia, for, once
the inventory of the property of the intestate estate has been
made, 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.
Sec. 3. Process. - In the exercise of probate jurisdiction, 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, and all other powers granted them by law. If a person does
not perform an order of judgment rendered by a court in the exercise of
its probate jurisdiction, it may issue a warrant for the apprehension and
imprisonment of such person until he performs such order or judgment,
or is released.
Q Can probate courts issue writs of execution?
A Generally, 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. The
rules, however, specify the instance wherein the probate court
may issue a writ of execution, to wit:
1. to satisfy the contributive shares of the devisees, legatees and
heirs in the possession of the decedent’s assets (Section 6,
Rule 88)
2. to enforce payment of the expenses of partition (Section 3,
Rule 90); and
3. to satisfy the courts when a person is cited for examination in
probate proceedings (Section 13, Rule 142)
Under the rule of inclusion unius est exclusion alterious, these would be
the only instances when the probate court can issue a writ of execution.
Sec. 4. Presumption of death. - For purposes of settlement of his
estate, a person shall be presumed dead if absent and unheard from for
the periods fixed in the Civil Code. But if such person proves to be alive,
he shall be entitled to the balance of his estate after payment of all his
debts. The balance may be recovered by motion in the same proceeding.
Q Which can be presumed dead?
A Under the New Civil Code:
Art. 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may be opened. (n)
Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
1. A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for
four years since the loss of the vessel or aeroplane;

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
2. A person in the armed forces who has taken part in war, and has
been missing for four years;
3. A person who has been in danger of death under other
circumstances and his existence has not been known for four
years. (n)
Art. 392. If the absentee appears, or without appearing his existence
is proved, he shall recover his property in the condition in which it may be
found, and the price of any property that may have been alienated or the
property acquired therewith; but he cannot claim either fruits or rents.
(194)

(
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,( may( arise(
and( be( invoked( either( in( an( action( or( in( a( special( proceeding,(
which( is( tried( or( heard( by,( and( submitted( for( decision( to,( a(
competent( court.( Independently( of( such( as( action( or( special(
proceeding,(the(presumption(of(death(cannot(be(invoked(nor(can(
it(be(made(the(subject(of(an(action(or(special(proceeding.(
• There( is( no& need( for( an( independent( action( for( Declaration( of(
Presumptive(Death(for(purposes(of(Succession.(
(
Q …?
A While it is true that a special proceeding is “an application or
proceeding to establish the status or right of a party, or a particular
fact”; but, as already said, that remedy can be invoked if the purpose is
to seek the declaration of death of the husband. A petition for
judicial declaration that petitioner’s husband is presumed to be
dead cannot be entertained because it is not authorized by law,
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. The philosophy behind this ruling is that a judicial
pronouncement to that effect, even if final and executory, would still be
a prima facie presumption only. It is still disputable. It is for that reason
that it cannot be the subject of a judicial pronouncement of declaration,
if it is the only question or matter involved in a case, or upon which a
complement court has to pass. (Lukban vs. Republic)
In the Matter of the Declaration of the Civil Status of: LOURDES
G. LUKBAN vs. REPUBLIC OF THE PHILIPPINES,
98 PHIL. 574 (1956)
FACTS:
Lourdes G. Lukban contracted marriage with Francisco Chuidian. 17
days after their marriage, Francisco left Lourdes after a violent quarrel and
since then he has not been heard from despite diligent search made by
her. She believes that he is already dead because he had been absent for
more than 20 years, and because she intends to marry again, she desires
that her civil status be defined in order that she may be relieved of any
liability under the law.
Thus, 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. The Solicitor General opposed the petition on the
ground that the same is not authorized by law. After Petitioner had
presented her evidence, the court sustained the opposition and dismissed
the petition. Hence this appeal.
ISSUE/S:
Whether the presumption of death can be the subject of judicial
pronouncement.
HELD:
NO. While it is true that a special proceeding is “an application or
proceeding to establish the status or right of a party, or a particular fact”;
but, as already said, that remedy can be invoked if the purpose is to seek
the declaration of death of the husband. A petition for judicial declaration
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

that petitioner’s husband is presumed to be dead cannot be entertained
because it is not authorized by law, 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. The philosophy behind this ruling
is that a judicial pronouncement to that effect, even if final and
executory, would still be a prima facie presumption only. It is still
disputable. It is for that reason that it cannot be the subject of a judicial
pronouncement of declaration, if it is the only question or matter
involved in a case, or upon which a complement court has to pass.
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, if alive,
remain away from home for 7 years without communicating with
family or friends.
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. Thus, the period runs from the time when the absent person is
last known to have been alive.
RULE 74
SUMMARY SETTLEMENT OF ESTATES
Sec. 1. Extrajudicial settlement by agreement between heirs. - If
the decedent left no will and no debts and the heirs are all of age, or the
minors are represented by their judicial or legal representatives duly
authorized for the purpose, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by
means of a public instrument filed in the office of the register of deeds,
and should they disagree, they may do so in an ordinary action of
partition. If there is only one heir, he may adjudicate to himself the
entire estate by means of an affidavit filed in the office of the register of
deeds. The parties to an extrajudicial settlement, whether by public
instrument or by stipulation in a pending action for partition, or the sole
heir who adjudicates the entire estate to himself by means of an affidavit
shall file, simultaneously with and as a condition precedent to the filing
of the public instrument, or stipulation in the action for partition, or of
the affidavit in the office of the register of deeds, a bond with the said
register of deeds, 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 of any just claim that may be filed under
Section 4 of this rule. 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.
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; but no extrajudicial settlement shall be
binding upon any person who has not participated therein or had no
notice thereof.

(
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.(
(
Procedure:(
(1) Division(of(estate(must(be(in(PUBLIC(INSTRUMENT(or(by(
AFFIDAVIT(of(SELFdADJUDICATION(in!case!of!a!sole!heir.(
(2) Filed(with(proper(Registry(of(Deeds.(
(3) Publication( of( notice( of( the( fact( of( extrajudicial(
settlement(once(a(week(for(3(CONSECUTIVES(

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua

(4) Bond(filed(equivalent(to(the(value(of(PERSONAL(property.(
Note:(
(
The(bond(is(required(only(when(personalty(is(involved.(If(its(
is(a(real(estate,(it(shall(be(subject(to(a(lien(in(favor(of(creditors,(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.!Ibanez)!
(
Public( instrument( is( not( necessary( for( the( validity( of( an(
extrajudicial( settlement.( Private( instrument( or( oral( agreement( of(
partition( as( well( as( a( compromise( agreement( without( previous(
authority(of(the(court(is(valid.((See!Hernandez)(
(
Affidavit&of&SelfYAdjudication&–(It(is(an(affidavit(required(by(Sec.(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.(
• 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.(
(
Q What are the different modes of settlement of intestate estate?
A
1. Intestate proceedings
2. Extrajudicial settlement by agreement among the heirs
3. Sole adjudication by means of an affidavit
4. Summary settlement of an estate of small value
5. Ordinary action for partition

Q What are the requisites of a valid extrajudicial settlement?
A
1. Decedent died intestate
2. No outstanding debts at the time of settlement
3. Heirs are all of age or the minors are represented by their
judicial guardians or legal representatives
4. Settlement is made in a public instrument, stipulations or
affidavit duly filed with the register of deeds
5. Fact of such extrajudicial settlement must be published in a
newspaper of general circulation in the province, once a week
for three consecutive weeks. (and a bond is required when
personalty is involved in extrajudicial representation) (in real
properties, 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, 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.
Q Suppose in the previous example, only Y pays B, Can the heirs
still proceed into a valid extrajudicial settlement?
A Yes. There will be a substitution of creditors. The parties are not
prevented from entering into an extrajudicial settlement but Y will be
entitled to reimbursement. This will prevent administration of the estate
or the unnecessary lengthening of the proceedings.
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”. Thus it cannot be availed of in testate proceedings.
If the decedent left a will and no debts and heirs and legatees desire to
make an extrajudicial partition of the estate, they must first

present that will to the court for probate and

divide the estate in accordance with the will.
The law enjoins the probate of the will and public policy requires it
because unless the will is probated and notice thereof given to the whole
world, the right of the person to dispose of his property by will may be
rendered nugatory. Absent legatees and devisees or such of them as may
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

have no knowledge of the will, 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.
Q Distinguish Extrajudicial settlement from Summary
settlement of estates
A
EXTRAJUDICIAL SETTLEMENT
SUMMARY SETTLEMENT
Does not require court
Involves judicial adjudication
intervention
(although in a summary
proceeding)
Value of the estate is immaterial
Applies only where the gross
estate does not exceed P10,000
(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
outstanding debts of the estate at
as the court will make provisions
the time of settlement
for 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, a transcription at the back of the
certificate is also required)
To serve as constructive notice and this means notice to others. The
purpose is to inform third parties of the fact of partition especially those
who may subsequently acquire the properties subject of the partition.
Such third party will be put on notice that the property he is buying is
subject to an encumbrance of two years.
Q Is it permissible to have an oral partition?
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. But as in all contracts required by law to be in
writing, partial execution of an oral contract removes the same
from the operation of the Statute of Frauds.
Q What constitutes “Partial Execution”?
A That there must be possession coupled with exercise of ownership.
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.
Q Who is required to file this bond?
A
1. Parties to an Extrajudicial settlement
(a) By public instrument or
(b) Stipulation in a pending action for partition
2. 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.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
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. To
answer for any claim which may arise subsequent to the extrajudicial
settlement.
Q What is meant by an “Ordinary Action of Partition”?
A One filed by persons who are co-owners of a certain property. Pursuant
to Article 493 Title II of the New Civil Code, “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?
A No. The Rules state that the “parties may…divide the estate among
themselves” Hence, the rule is permissive and not mandatory.
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.
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, 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
left no will or in case he had left one, should he fail to name an executor
therein (Utulo v. Vda de Garcia)
Q Is the rule subject to any exception?
A Secs. 1 and 2 of Rule 74 of the Rules of Court
1. First exception: When all the heirs are of lawful age and there
are no debts due from the estate, they may agree in writing to
partition the property without instituting the judicial
administration or applying for the appointment of an
administrator.
2. Second exception: If the property left does not exceed ten
thousand pesos (in the Utulo case, P6K) the heirs may apply to
the competent court after the required publications to proceed
with summary partition and, 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.
In other words:
(1) when extrajudicial settlement is proper and
(2) in case of summary of settlement of estates of small value
Utulo v. Vda de Garcia
FACTS:
Juan Garcia Sanchez died intestate and was survived by his wife,
Leona and three children, one of whom was named Luz Garcia. An action
was filed in the CFI Tarlac by Leona for the administration of her
husband’s property.
Luz later married Pablo Utulo. However, during the pendency of
the abovementioned administration proceedings, Luz died and left no
children her only forced heirs being her mother Leona and her husband
Pablo.
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Pablo instituted an action for the judicial administration of
Luz’s property which consisted merely of her share in her father’s
intestate estate. To this, Leona filed an opposition. She alleged that
since Luz left no indebtedness, there was no reason for the said judicial
administration
but she stated that should the court grant the
administration of the property, she should be appointed the
administratrix thereof in as much as she had the better right than the
applicant.
Nevertheless, the lower
administration. Hence this appeal.

court

granted

the

judicial

ISSUE:
W/N the judicial administration of Luz’s property is proper.
HELD:
NO. The Code of Civil Procedure provides: “ If no executor is
named in the will, or of a person dies intestate, the administration shall
be granted..etc.” This provision enunciate the general rule that when a
person dies leaving property in the Philippines, 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 left no will, or in case he had left one and he fails to name
an executor therein.
This rule however, is subject to exceptions pursuant to the
CCP. According to the first, when all the heirs are of lawful age and there
are no debts due from the estate, they may agree in writing to partition
the property without instituting the judicial administration or applying for
the appointment of an administrator. According to the second, if the
property left does not exceed six thousand pesos, the heirs may apply to
the competent court after the required publications to proceed with
summary partition and, 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.
When a person dies without leaving pending obligations to be
paid, his heirs, whether of age or not, 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. It has been
uniformly held that in such case, the judicial administration and the
appointment of an administrator are superfluous and unnecessary
proceedings.
When there are no debts and the heirs are all adults, their relation to
the property left by their ancestor is the same as that of any other coowners in common, and they may recover their individual rights, the
same as any other co-owners of undivided property.
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, independent and in spite of the Statute of
Frauds, courts of equity have enforced oral partition when it has been
completely or partly performed.
Section 1 of Rule 74 contains 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. 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 requirement
that a partition be put in a public instrument and registered has for its
purpose, the protection of creditors and at the same time, the protection
of the heirs themselves against tardy claims. Note that the last sentence
of the section speaks of debts and creditors. The object of registration is
to serve as constructive notice and this means notice to others. It must
follow that the intrinsic validity of 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. No rights of creditors
being involved, it is competent that for the heirs of an estate to enter

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
into an agreement for distribution in a manner and upon a plan different
from those provided by law. (Hernandez v. Andal)
Hernandez v. Andal
FACTS:
Plaintiff Cresencia Hernandez and her sister, intervenor in this
case, inherited a parcel of land from their father. The Intervenors sold a
portion of this land to defendant Zacarias Andal for P860. 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.
Plaintiff attempted to repurchase the land for P150 but the
defendant refused to part with the property. Hence, 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.
The sisters’ answer in intervention alleged that there had been a
partition among them and that plaintiff was in bad faith. (It appears that
Cresencia offered to purchase her sisters’ portion for P150. The sisters
wanted P850 which was the amount offered by the defendant)
Meanwhile, defendant resold the property to the vendors for

Torres v. Torres
FACTS:
Alberto Torres, one of the legitimate children of Paz E.
Siguion-Torres who died intestate, prayed for the issuance in his favor of
letters of administration in connection with the properties left by the
decedent. It was alleged therein that he was unaware of any existing
debt or obligation contracted by the deceased or her estate.
This petition was opposed by Conchita Torres, 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.
In the petitioner’s answer to the opposition, he contended that
despite the extrajudicial partition attempt at the actual designation of
their respective shares have failed, thus needing the court’s intervention.
It was also claimed that some properties of considerable value were not
included in said partition. In addition, the petitioner this time alleged that
the estate has an existing debt of P50,000 from third persons which
Alberto claimed was not incorporated in the petition by reason of
oversight.

P970.
The lower court declared this resale was illegal and in bad faith.
Defendant was ordered to execute a deed of sale in favor of plaintiff.
On appeal the defendant and intervenors made one assignment
of error, 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.

The court finding that an extrajudicial settlement had already
been entered into by the heirs dismissed the petition. Hence this appeal.
ISSUE:
W/N a special proceeding is necessary for the settlement of
the estate of the deceased.

ISSUE:
Is writing the act that confers legality upon the agreement?
HELD:
On general principle, independent and in spite of the Statute of
Frauds, courts of equity have enforced oral partition when it has been
completely or partly performed.
Section 1 of Rule 74 contains 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.
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 requirement that a partition
be put in a public instrument and registered has for its purpose, the
protection of creditors and at the same time, the protection of the heirs
themselves against tardy claims. Note that the last sentence of the section
speaks of debts and creditors. The object of registration is to serve as
constructive notice and this means notice to others. It must follow that the
intrinsic validity of 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. No rights of creditors being involved, 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.
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.
However, while the rule provides that the decedent must not have left
any debts, it is sufficient if any debts that may have been left have been
paid at the time the extrajudicial settlement is entered into.
The subsequent bare allegation that the estate has an existing debt
from third persons without specifying the creditor and other details in
regard thereto 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, justify the institution of administration
proceedings because such questions can be litigated in an ordinary action
for partition. (Torres v. Torres)
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

HELD:
NO. Pursuant to Sec 1 of Rule 74 of the ROC, the SC held that where
the decedent left no debts and heirs or legatees are all of age, as in this
case, 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.
In further application of the this rule to the case at bar, 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, 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, are they precluded
from instituting administration proceedings?
A No. Sec.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.
While Sec 1 allows the heirs to divide the estate among themselves as
they may see fit, or to resort to an ordinary action of partition, it does
not compel them to do so if they have good reasons to take a different
course of action. Said section is not mandatory or compulsory as may be
gleaned from the word may. If the intention were otherwise, the framer
of the rule would have employed the word shall as was done in other
provisions that are mandatory in character. Note that the word may is
used not only once bit in the whole section which indicates an intention
to leave the matter entirely to the discretion of the heirs. (Arcillas v.
Montejo)
Arcillas v. Montejo
FACTS:
Eustaquio Arcillas died intestate. 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.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Geronimo Arcillas, one of the heirs, 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, the petition for
administration was improper.
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 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, the parties may without securing LOA divide the
estate among themselves as they see fit and should they
disagree, they may do so in an ordinary action for partition.
On petition for certiorari filed by Aurelio, the respondents Geronimo and
the CFI judge claim that in as much as the aforementioned minimum
requirements of Sec 1 Rule 74 obtain, there is no necessity for the
institution of special proceedings and the appointment of an administrator
for it is superfluous and unnecessary. In other words, 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.
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.
HELD:
NO. Sec.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.
While Sec 1 allows the heirs to divide the estate among
themselves as they may see fit, or to resort to an ordinary action of
partition, it does not compel them to do so if they have good reasons to
take a different course of action. Said section is not mandatory or
compulsory as may be gleaned from the word may. If the intention were
otherwise, the framer of the rule would have employed the word shall as
was done in other provisions that are mandatory in character. Note that
the word may is used not only once bit in the whole section which
indicates an intention to leave the matter entirely to the discretion of the
heirs.
Having decided to institute administration proceedings instead of
resorting to the less expensive modes of settlement of estate (i.e.
extrajudicial settlement or ordinary action for partition, 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. 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.
Besides, 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.
Q Is the partition entered into by the parties final?
A Yes. 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.
Unless and until it is shown that there were debts existing against the
estate, which had not been paid, the division in conclusive so much so that
even if unpaid debts are later discovered, such discovery does not destroy
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

the partition made. 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, Section 1, Rule 74 provides that “it shall be presumed that
the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent.”
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. 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.
Sec. 2. Summary settlement of estates of small value. - Whenever
the gross value of the estate of a deceased person, whether he died
testate or intestate, does not exceed ten thousand pesos, and that fact is
made to appear to the Court of First Instance having jurisdiction of the
estate by the petition of an interested person and upon hearing, which
shall be held not less than (1) month nor more than 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, and after such other notice to interested
persons as the court may direct, the court may proceed summarily,
without the appointment of an executor or administrator, and without
delay, to grant, if proper, allowance of the will, if any there be, to
determine who are the persons legally entitled to participate in the
estate, and to apportion and divide it among them after the payment of
such debts of the estate as the court shall then find to be due; and such
persons, in their own right, if they are of lawful age and legal capacity,
or by their guardians or trustees legally appointed and qualified, if
otherwise, shall thereupon be entitled to receive and enter into the
possession of the portions of the estate so awarded to them respectively.
The court shall make such order as may be just respecting the costs of
the proceedings, and all orders and judgments made or rendered in the
course thereof shall be recorded in the office of the clerk, and the order
of partition or award, if it involves real estate, shall be recorded in the
proper register's office.

Note( From( Herrera:( The! MTC! &! MCTC,! BP! 129! as! amended,! now!
has! probate! jurisdiction! where! the! value! of! the! estate! does! not!
exceed!P100,000!or!P200,000!in!Metro!Manila.!
(
Q What is the nature of a summary settlement?
A In a summary manner, the estate of the deceased is valued, his
debts, if any, are paid, his will, if any, is allowed; the heirs and
legatees are declared and the dissolution is made, all in a single
hearing and in a single order as far as this is practicable, without the
appointment of any administrator or executor. This is done with the
least possible delay though not necessarily in one hearing,
Q What are the requisites for a valid summary settlement of an
estate of small value?
A
1. The gross value of the estate of a deceased person does not
exceed ten thousand pesos
2. That there are no existing debts
3. That a bond has been duly filed
4. That a proper hearing is held
5. Publication of a notice once a week for three consecutive
weeks in a newspaper of general circulation.
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.
Q Where is the petition for the summary settlement of an
estate of a small value filed?
A BP 129 has conferred exclusive jurisdiction in the inferior courts i.e
the MeTC, MuTC, MuCirTC in all matters of probate both testate and

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
intestate. Where the gross value of the estate does not exceed
P20,000 (Sec 19.4 Sec 33.1) This has resulted in investing said inferior
courts with exclusive jurisdiction in summary settlement of estate of
small value since the maximum jurisdictional limit on the gross estate
involved in said proceeding is P10,000. This is notwithstanding the fact
that the 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.
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. Determine the gross value of the estate. If the gross value of the
estate is less than ten thousand pesos, file a petition with the
MTC
2. A hearing is set to determine the existence of debts. If the court
finds that there are, it orders the payment of debts.
3. If the deceased died with a will, it should be presented for
probate; and
4. Distribute the estate in accordance with the will or the rules on
intestacy as the case may be.
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, shall
be entitled to receive and enter into possession of the position awarded
to them.
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.
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. 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, 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.
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, in so far as the shares of the
heirs, devisees and legatees are concerned, are in accordance with law,
it will no longer be disturbed if there is no showing that the procedural
requirements laid down under Sec 2, Rule 74 have not been followed.
Q What is the remedy of a person unduly deprived of his lawful
participation in the estate.
A The summary distribution of the estate of a deceased person ordered
by the competent court is final and definitive, 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.
Sec. 3. Bond to be filed by distributees. - The court, before allowing a
partition in accordance with the provisions of the preceding section, may
require the distributees, if property other than real is to be distributed, to
file a bond in an amount to be fixed by court, conditioned for the payment
of any just claim which may be filed under the next succeeding section.

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Q Compare the bond required under Sec 1 of the rule for
extrajudicial settlement with the bond required under this
section for summary settlement.
A
EXTRAJUDICIAL
SUMMARY
Amount of the bond is equal to
Determined by the court
the value of the personal property
as established in the instrument of
adjudication
In both cases, 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, the same may be required only where personal property
is distributed and not where realty is the subject of the partition.
Q Why is a bond required for personalty and not for realty?
A Lien as recorded, is a sufficient security for any claim which may be
filed under Sec 4 Rule 74.
Sec. 4. Liability of distributees and estate. - 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, that an heir or other person has been unduly
deprived of his lawful participation in the estate, 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. And if within the same time of two (2) years, 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, the court having jurisdiction
of the estate may, by order for that purpose, after hearing, 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,
and may issue execution, if circumstances require, against the bond
provided in the preceding section or against the real estate belonging to
the deceased, or both. Such bond and such real estate shall remain
charged with a liability to creditors, heirs, or other persons for the full
period of two (2) years after such distribution, notwithstanding any
transfers of real estate that may have been made.

When&Settlement&of&Estates&in&the&Courts&may&be&Compelled:(
(1)(If(there(is(an(undue(deprivation(of(lawful(participation(in(the(
estate;(
(2)(The(existence(of(debts(against(the(estate;(or(
(3)(If(there(is(an(undue(deprivation(of(lawful(participation(payable(
in(money.(
(
Note:(
The(bar(against(distributes(from(objecting(to(an(extrajudicial(
partition(after(the(expiration(of(two(years(is(applicable(only(to(the(
ff.:(
(1)(To(persons(who(have(participated(or(taken(part(or(had(notice(
of(the(extrajudicial(partition;(an(
(2)(When(all(the(persons(or(heirs(of(the(decedent(have(taken(part(
in(the(extrajudicial(settlement.(
(
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(

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua

(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,( accident,(
mistake,(excusable(negligence)(60(days(after(the(petitioner(learns(of(
the( judgment,( final( order( or( other( proceeding( to( be( set( aside,( and(
not( more( than( 6( months( after( such( judgment( or( final( order( was(
entered.(
(6)( Reopening( by( intervention( within( anytime( before( rendition( of(
judgment,(as(long(as(it(is(within(the(reglementary(period(of(2(years(
(7)(New(action(to(annul(settlement(within(reglementary(period(of(2(
years.(
(
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.(
• Where(the(estate(has(been(summarily(settled,(the(unpaid(creditor(
may,(within&2&years,(file(a(motion(in(court(wherein(such(summary(
settlement(was(had,(for(the(payment(of(his(credit.(
• After( the( lapse( of( 2( years,( an( ordinary( action( may( be( instituted(
against(the(distributes(within(the(statute(of(limitations(BUT(NOT(
against(the(bond.(
• 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.(
• Exception&to&prescription&of&actions:(There(is(one(instance(when(
prescription( cannot( be( invoked( in( an( action( for( reconveyance.(
That( is,( when( the( plaintiff( is( in( possession( of( the( land( to( be(
reconveyed.(–(The(registered(owners(were(never(in(possession(of(
the(disputed(property.(Instead,(it(was(the(legal(owners(of(the(land(
who(had(always(been(in(possession(of(the(same.(Thus,(the(Court(
allowed(the(action(for(reconveyance(to(prosper(despite(the(lapse(
of( 10( years( from( the( issuance( of( title( to( the( land.( Reason:!
registration! proceedings! could! not! be! used! as! a! shield! for! fraud!
enriching!a!person!at!the!expense!of!the!other.(
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.
Q Must the lien be annotated in the certificate of title?
A Yes. The lien must be annotated in the certificate of title for the
protection of unpaid creditors and heirs unlawfully deprived of their
participation. Otherwise, a purchaser in good faith of the property may
defeat the lien constituted for their protection.
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. After the two-year
period, such lien becomes functus officio and it may be cancelled at the
instance of the transferee of the land involved. (Carreon v. Agcaoili)
Carreon v. Agcaoili
FACTS:
Bonifacio Carreon and Celerina Dauag acquired a homestead
land during their marriage. Carreon died. Celerina executed an affidavit
wherein she declared that she was the only heiress of her husband and at
24 |

Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

the same time, adjudicating to herself alone the said land. A TCT was
issued in her name but a lien to the effect that her title was subject to
Sec4, Rule 74 of the ROC was annotated thereon.
Celerina thereafter, borrowed P1,200 from PNB guaranteed by
a mortgage on ½ of the land. Said mortgage was likewise annotated in
the TCT. After the maturity of said loan, she sold the land to Rufo
Agcaoili for P3,000 (Sale was approved by the Secretary of Agriculture
and Nat. Resource even though the land acquired was a homestead) The
loan from the bank was then paid, the mortgage released and the Deed
of Absolute Sale was executed and registered in favor of Agcaoili.
Subsequently, 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. Celerina also filed a motion to
intervene but the same was dismissed by the trial court.
The trial court held that plaintiff’s claim has no legal basis.
On appeal, plaintiff-appellants contend that defendant
appellees were that there existed a trust relationship between them and
the appellants and that such being the case, the action against appellees
is imprescriptible.
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. The lien created by virtue of said annotation is effective only for
a period of two years. From the time the TCT was issued to Celerina to
the moment the deed of sale in favor of Agcaoili was issued and
registered, more than two years had elapsed. The right to have such lien
cancelled became vested on appellee Agcaoili and that the same had
become functus officio. 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.
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?
A NO. The lien annotated therein becomes functus officio that is, it is
already a performed function.
Q May the lien be substituted by a bond?
A No. 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.
Q What is the remedy if fraud is alleged?
A If annulment of the Extrajudicial settlement is sought on the ground
of fraud, such action must be filed within 4 years from the
discovery of the fraud. 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, for such registration constitutes
constructive notice to the whole world.
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.
The discovery of an unpaid obligation after partition does not destroy
the partition. It simply furnishes ground for the application of the
creditor for the appointment of an administrator (McMiking v. Sy
Conbieng)
Q Will entire property be under administration?
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

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
into administration. Only so much of the property is subject to such
administration as is sufficient to pay the claim discovered, leaving the
partitioning persons in undisturbed possession of the remainder.
(McMiking v. Sy Conbieng)
Q Is administration the only remedy?
A Even after the discovery of a debt subsequent to a partition, the
partitioning persons may prevent any administration whatever by
paying the debt discovered, thereby preserving the partition intact in all
its parts. (McMiking v. Sy Conbieng)
Q What is the effect of an extrajudicial partition after an
administrator had already been appointed?
A Where after the appointment of an administrator, 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, the
delivery of the property to such partitioning owners by such
administrator, under proper proceedings and order of court and after
compliance with the provisions of such sections, is in effect, a discharge
of such administrator as to all future obligations and responsibilities in
relation to said property.
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, it would
not be the same estate represented by the prior administrator and he
would not be the administrator of the new estate by virtue of his
appointment in the old.
It would be necessary to appoint upon proper application and notice,
another administrator for the purposes set forth in said sections (McMiking
v. Sy Conbieng)
Mcmicking v Sy Conbieng
FACTS:
Margarita Jose died and Palanca was appointed administrator of
her estate and Lao and Cunyao became the latter’s sureties. A partition of
the estate of Lao was approved thus the administrator Velasco delivered to
the heirs and legatees the properties of the estate.
Later, Palanca was removed as administrator of the estate of
Jose and McMicking replaced him. It was learned that Palanca was
indebted to the estate of Jose. To satisfy such claims, the court ordered
Velasco to pay the claims as administrator of the estate of the surety Lao.
A claim was thereafter made against Barretto as surety of
Velasco.
ISSUE:
W/N the estate of Barretto is liable.
HELD:
NO. 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, the surety cannot be.
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.
The principal Velasco is not liable because the discovery of an
unpaid obligation (in this case, the claim on Velasco as surety for Palanca)
after an extrajudicial partition does not destroy the partition applied for by
Velasco. The partition is still binding and valid. It simply furnishes ground
for the application by the creditor for the appointment of an administrator.

Sec. 5. Period for claim of minor or incapacitated person. - 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, or is in prison or outside the Philippines, 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.
A (a) minor, (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.
However, this is subject to the proviso that the disability existed
during the two-year period. Moreover, the disability must exist at the
expiration of the two-year period.
RULE 75
PRODUCTION OF WILL, ALLOWANCE OF WILL NECESSARY
Sec. 1. Allowances necessary; Conclusive as to execution. - No
will shall pass either real or personal estate unless it is proved and
allowed in the proper court. Subject to the right of appeal, such
allowance of the will shall be conclusive as to its due execution.

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.(
(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,(substantial(
compliance(is(acceptable(when(the(purpose(of(the(law(has(been(
satisfied,(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.((Icasiano!vs.!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. It is the statutory
method of establishing the proper execution of the instrument and
giving notice of its contents.
Q What is the purpose of probate?
A The purpose of probate is to establish conclusively as against
everyone, once and for all, 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.
Q What does due execution refer to?
A Due execution means that
1. the formalities of the law has been complied with
2. the capacity of the testator has been established (i.e. he was
of sound mind and did not act under fraud, duress,
intimidation, etc.);
3. the will is genuine
NOTE: the conclusiveness of such matters only refer to the EXTRINSIC
VALIDITY of a will. The intrinsic validity of a will is governed by the
laws of legitimes.
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. The
provision of notice by publication as a prerequisite to the allowance of
a will is constructive notice to the whole world, and when the probate

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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
is granted, the judgment of the court is binding upon everybody, even
against the State.

(b) whether the order of the Court of origin overruling the estoppel
invoked by oppositors-appellants had likewise become final

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.
So an instrument which neither disposes of property nor appoints an
executor is not testamentary in character, and consequently, is not
entitled to probate. Although it be executed with all the formalities
required by law. An instrument which makes no disposition of property
but appoints an executor is entitled to probate. A codicil should be
probated although it contains nothing but the revocation of a former
will. The revoked will, however, cannot be probated.

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, irrespective of whether its
provisions are valid and enforceable or otherwise. As such, the probate
order is final and appealable.
Estoppel cannot be raised in probate proceedings. The presentation
and probate of a will are requirements of public policy, being primarily
designed to protect the testator's, expressed wishes, which are entitled
to respect as a consequence of the decedent's ownership and right of
disposition within legal limits. It would be a non sequitur to allow public
policy to be evaded on the pretext of estoppel. Whether the order
overruling the allegation of estoppel is still appealable or not, the
defense is patently unmeritorious.

Q When must a will be presented for probate?
A Under Section 1, Rule 76, a will may be probated:
1. at a reasonable time after the death of the testator
2. during the lifetime of the testator, upon petition by him to the
court having jurisdiction for the allowance of his will.
Q What is the extent of the court’s jurisdiction in the probate of a
will?
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, irrespective of whether its provisions are valid and
enforceable or otherwise. As such, the probate owner is final and
appealable; and it is so recognized by express provisions of Section 1,
Rule 109, that specifically prescribes that “any interested person may
appeal in special proceedings from an order or judgment xxx where
such an order of judgment (a) allows or disallows a will” (Fernandez vs.
Dimagiba)
DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES vs.
ISMAELA DIMAGIBA, 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. R. No.
31221-R) affirming that of the Court of First Instance of Bulacan, in Special
Proceeding No. 831 of said Court, admitting to probate the alleged last will
and testament of the deceased, and overruling the opposition to the
probate.
Ismaela Dimagiba submitted to the CFI a petition for the probate of
the purported will of the late Benedicta de los Reyes, executed on October
22, 1930. The will instituted the Dimagiba as the sole heir of the estate of
the deceased. The petition was set for hearing, and in due time, claimants
to be heirs of the deceased filed their oppositions to the probate asked.
Grounds advanced for the opposition were forgery, vices of consent of the
testatrix, 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, but which
conveyances were finally set aside by this Supreme Court.
CFI found that the will was genuine and properly executed; 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."
Afterwards, CFI appointed Ricardo Cruz as administrator for the sole
purpose of submitting an inventory of the estate. Subsequently, it resolved
against the oppositors and held the will of the late Benedicta de los Reyes
"unaffected and unrevoked by the deeds of sale." Whereupon, the
oppositors elevated the case to the Court of Appeals.
The CA admitted the will to probate, had become final for lack of
opportune appeal; that the same was appealable independently of the
issue of implied revocation; that contrary to the claim of oppositorsappellants, there had been no legal revocation by the execution of the
1943 and 1944 deeds of sale, because the latter had been made in favor
of the legatee herself, and affirmed the decision of the CFI.
ISSUE/S:
(a) whether the decree of the CFI allowing the will to probate had become
final for lack of appeal; and
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Q What is the effect of the allowance of a will?
A The probate of a will by the probate court having jurisdiction thereof
is usually considered as conclusive as to its due execution and
validity, and is also conclusive that the testator was of sound and
disposing mind at the time when he executed the will, and was not
acting under duress, menace, fraud, or undue influence, and that the
will is genuine and not a forgery. It cannot be impugned on any of
the grounds authorized by law, except that of fraud, in any separate
or independent action or proceeding. Hence, criminal action will not
lie in this jurisdiction against the forger of a will which had been duly
admitted to probate by a court of competent jurisdiction since it is
clear that a duly probated will cannot be declared a forgery without
disturbing in any way the decree allowing said will to probate. The
allowance of a will creates a conclusive presumption as to its due
execution and validity. Conclusive presumptions are inferences which
the law makes so peremptory that it will not allow them to be
overturned by any contrary proof however strong. The will having
been duly probated, the law will not admit any proof to overthrow the
legal presumption that it is genuine and not a forgery. (Mercado vs.
Santos)
ANTILANO G. MERCADO vs. CFI Judge ALFONSO SANTOS &
ROSARIO BASA DE LEON, ET AL., 66 PHIL. 215 (1938)
FACTS:
Mercado filed in the CFI of Pampanga a petition for the probate of
the will of his deceased wife, Ines Basa. Without any opposition, and
upon the testimony of Benigno F. Gabino, one of the attesting witnesses,
the probate court admitted the will to probate. Almost 3 yrs later the 5
intervenors herein moved ex parte to reopen the proceedings, alleging
lack of jurisdiction of the court to probate the will and to close the
proceedings. Because filed ex parte, the motion was denied. The same
motion was filed a second time, but with notice to the adverse party.
The motion was nevertheless denied by the probate court. On appeal to
this court, the order of denial was affirmed.
16 months after the probate of the will of Ines Basa, Rosario Basa
de Leon filed with the justice of the peace court of San Fernando,
Pampanga, a complaint against the Mercado, for falsification or forgery
of the will probated but was finally dismissed, at the instance of the
complainant herself. 3 months later Basa charged the Mercado for the
second time with the same offense, presenting the complaint this time in
the justice of the peace court of Mexico, Pampanga but was again at the
instance of the complainant herself who alleged that the petitioner was
in poor health, dismissed the complaint. 9 months later, Basa again
accused Mercado for the third time of the same offense. 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. Dissatisfied with
the result, the provincial fiscal moved in the CFI of Pampanga for
reinvestigation of the case. For the fourth time, the petitioner was
arrested, filed a bond and engaged the services of counsel to handle his
defense. The reinvestigation dragged on for almost a year when the CFI
ordered that the case be tried on the merits. The petitioner interposed a
demurrer on the ground that the will alleged to have been forged had

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
already been probated but was overruled. Petitioner moved to dismiss the
case claiming again that the will alleged to have been forged had already
been probated and, further, that the order probating the will is conclusive
as to the authenticity and due execution thereof. The motion was
overruled and the petitioner filed with the Court of Appeals a petition
for certiorari. Court of Appeals denied the petition for certiorari, and
dissolved the writ of preliminary injunction.
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, except that of fraud, in any separate or independent action or
proceeding. The probate of a will by the probate court having jurisdiction
thereof is usually considered as conclusive as to its due execution and
validity, and is also conclusive that the testator was of sound and disposing
mind at the time when he executed the will, and was not acting under
duress, menace, fraud, or undue influence, and that the will is genuine and
not a forgery.
The will in question having been probated by a competent court, the
law will not admit any proof to overthrow the legal presumption that it is
genuine and not a forgery.
Q Does the probate court have jurisdiction to inquire into the
intrinsic validity of the will?
A In petitions for probate, 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. Any inquiry into the
intrinsic validity or efficacy of the provision thereof or the legality of any
devise or legacy is premature. (Sumilang vs. Ramagosa)
Q Is the probate court absolutely precluded from passing upon
the intrinsic validity of the will?
A NO. In the extreme case where the provisions of the will are of dubious
legality, the probate court can pass upon the intrinsic validity of the will;
otherwise, probate may become an idle ceremony. (Balanay vs.
Martinez)
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, the issue by and large
is restricted to the extrinsic validity of the will, whether the testator,
being of sound mind, freely executed the will in accordance with the
formalities prescribed by law. As a rule, the question of ownership is an
extraneous matter which the probate court cannot resolve with finality.
Thus, for the purpose of determining whether a certain property should
or should not be included in the inventory of estate properties, the
probate court may pass upon the title thereto, but such determination is
provisional, not conclusive and is subject to the final decision in a
separate action to resolve title. (Pastor, Jr. vs. CA)
Sec. 2. Custodian of will to deliver. - The person who has custody of
a will shall, within twenty (20) days after he knows of the death of the
testator, deliver the will to the court having jurisdiction, or to the
executor named in the will.
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, 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. By accepting the custody of the
will of another, a person does not obligate himself to exercise diligence
to discover the death of the testator, so as to disclose possession of the
will and to produce it for probate within a reasonable time after such
death, unless he agreed to perform such obligation or else made
representation that he was well equipped to obtain information as to
the death or the maker of the will in his custody.
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Q Suppose X works as a secretary of his father. One day, he
sees his father’s will on the floor. X takes the will and keeps
it on his table. Is x a custodian of his father’s will?
A X in this case is NOT a custodian. Mere possession of a will does not
constitute custody of the instrument within the meaning of this title. A
custodian is a person chosen in advance and entrusted with the
custody of a will. One becomes a custodian by agreement between
the testator and the person to whom the will is entrusted.
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. 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, there is no required form for the acceptance of the custody
of a will, but Gerry’s notes state that it must be in writing.
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 court having jurisdiction or to the executor named in the will. A
violation of this duty is made punishable by Section 4, Rule 75.
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.
Q What if the custodian is also the executor named in the will.
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. Thus, the custodian of a
will must comply with the statute even though he is named as the
executor.
Q Suppose the custodian refuses or fails to deliver the will
within the reglamentary period -A Under Section 2 and 3 of this Rule, the fact that a will is not
presented to the court after the 20- day period specified therein does
not prevent it from being probated. On the contrary, Rule 76, Section
1 provides that “[a]ny executor, devisee or legatee named in a will, or
in any other person interested in the estate may, at any time after the
death of the testator, petition the court having jurisdiction to have the
will allowed, whether the same be in his possession or not, or is lost
or destroyed.” In such a case, probate will proceed through
secondary evidence.
Q Is probate of a will mandatory?
A YES. The presentation of the will for probate is mandatory. The law
enjoins the probate of the will and policy requires it, because unless
the will is probated and notice thereof be given to the whole world,
the right of a person to dispose of his property by will may be
rendered nugatory. Absent legatees and devisees, or such of them as
may have no knowledge of the will, could be cheated of their
inheritance through the collusion of some of the heirs who might
agree to partition the estate among themselves to the exclusion of
others. Even if the decedent left no debts and nobody raises any
questions as to the authenticity and due execution of the will, none of
the heirs may sue for the partition of the estate in accordance with a
will without first securing its allowance or probate by the court first
because the law expressly provides that “no will shall pass either real
or personal estate unless it is proved and allowed in the proper
court,” and second, because the probate of a will, which is a
proceeding in rem, cannot be dispensed with and substituted by any
other proceeding, judicial or extrajudicial.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
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; which are entitled to
respect as a consequence of his ownership and rights of disposition.
Inasmuch as the probate of will is required by public policy, the State
could not have intended to defeat the same by applying thereto the
Statute of Limitations.

(
Note:&Failure(to(attach(original(of(will(to(petition(not(critical(where(
will( itself( was( adduced( in( evidence.( It( is( not( necessary( to( attach(
original(will(to(petition(for(probate.(
Sec. 3. Executor to present will and accept or refuse trust. - A
person named as executor in a will shall, within twenty (20) days after
he knows of the death of the testator, or within twenty (20) days after
knows that he is named executor if he obtained such knowledge after
the death of the testator, present such will to the court having
jurisdiction, unless the will has reached the court in any other manner,
and shall, within such period, signify to the court in writing his
acceptance of the trust or his refusal to accept it.
Q What is the duty of the executor?
A When a will has been duly executed and delivered to the one named as
executor therein, a moral obligation in the nature of a _____ is imposed
upon such person. It is a moral duty because it is more of a personal
obligation.
Sec. 4. Custodian and executor subject to fine for neglect. - A
person who neglects any of the duties required in the two last preceding
sections without excuse satisfactory to the court shall be fined not
exceeding two thousand pesos.
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. Guimco)
! In this regard, it is worthy to restate what has been previously
discussed. Mere possession of a will does not constitute custody of the
instrument within the meaning of these rules. In order to hold one
liable as custodian for failure to produce a will after the decedent’s
death, it must be at least shown that there was a baliment.
! Atty. Gesmundo: Sectiton 4 is a usurpation of judicial powers. It is not
within legislative powers to impose such sanctions.
THE UNITED STATES vs. CHIU GUIMCO, 36 PHIL 917 (1917)
FACTS:
The testator, Joaquin Cruz had for many years, resided in the
municipality of Gingoog, Province of Misamis, where he had lived as a
Chinese merchant and had amassed a considerable estate, worth possibly
forty or fifty thousand pesos. In 1898, Joaquin Cruz visited China and was
there married to a Chinese woman, Uy Cuan, and by her had one child. In
1902, after his return from China, he was married in Gingoog to a Filipina
woman named Maria Villafranca. In the early part of the year 1910,
Joaquin Cruz again visited China, leaving his brother, Chiu Guimco, the
accused, in charge of his property and business in Gingoog as agent or
attorney in fact (apoderado). While absent on this visit to China Joaquin
Cruz died. Before his departure from the Philippine Islands he had
executed a will before Anastacio Servillon, notary public, in which Chiu
Guimco and Co-Iden were named as executors. In August 1910, Chiu
Guimco and Co-Iden appeared before Anastacio Servillo; and at their
request the latter drew up a petition for the probate of the will. This
petition was signed by Co-Iden and the accused. The will itself was not
produced before the notary public upon this occasion, and he was not
informed by them as to who then had possession of the will. Nothing
further was done in the matter of the probate of the will and Co-Iden
subsequently died.
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

In the meantime, Chui Guimco, as attorney- in- fact and manager
of the estate of his deceased brother, entered into an arrangement with
Maria Villafranca whereby, in consideration of the conveyance of certain
property to her, she relinquished in favor of the other persons interested
in the estate of the deceased all her claims in respect to the same
property. When the Chinese wife arrived in Misamis, Guimco made the
claim that he and his brother had been partners in the business which
had been conducted originally by Joaquin Cruz. He also asserted that
another brother living in China, named Chiu Tamco, was also a partner
in the business though he had never been in the Philippine Islands. 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 Chiu Tamco
20%. Later upon the same visit, Uy Cuan, on behalf of herself and child,
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. No payments have, however, been made by him in
compliance with this contract.
Ramon Contreras, a Chinese merchant, acting on behalf of Uy Cuan
and her child, began to make inquires into the affairs of the estate. He
wrote a letter to Guimco, urging him to produce the will of the decedent
for the institution of lawful proceedings in accordance therewith. Guimco
refused. Thus, a complaint was filed, charging Guimco with the failure to
produce the will within the time required by law.
The court found the accused guilty. That the will was duly executed
and that the accused and his coexecutor appeared before the notary
public and procured the latter to prepare a petition for the probate of the
will are facts which are not disputed. 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, as well as his
refusal to comply with the contract for the payment of rent to the wife
and child in China, all tend to show that he was acting in bad faith. In
finding the defendant guilty and imposing upon him a fine of P1,800.
ISSUE:
Whether an accused found guilty under Section 628 may
likewise be committed to prison under Section 629.
HELD:
NO. 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, the court before taking action under this section, should require
that there be before it some petition, information or affidavit of such
character as to make action by the court under this section appropriate.
The under section 628, is an ordinary criminal prosecution. 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. The remedy provided in section 629 of the Code
of Procedure is evidently a totally different remedy, having no relation
with that provided in section 628. 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. Also, to enforce the production of the will by the accused
at such trial would constitute a violation of his right against selfincrimination since the mere production of the will by him would be
conclusive that he had possession of it as charged in the criminal
complaint.
The offense punished under Section 4 is a special procedural
offense which must be prosecuted upon a complaint or information as
other criminal offenses.
Sec. 5. Person retaining will may be committed. - A person having
custody of a will after the death of the testator who neglects without
reasonable cause to deliver the same, when ordered so to do, to the
court having jurisdiction, may be committed to prison and there kept
until he delivers the will.
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, pursuant to this

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
section, EXCEPT when acting in the exercise of its jurisdiction over the
estates of deceased persons.
! The remedy provided in Section 5 is different with that provided in
Section 4. accordingly, in the prosecution under Section 4, it is not
permissible to superimpose upon the penalty of fine therein prescribed
the additional penalty of imprisonment imposed by Section 5.
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
Sec. 1. Who may petition for the allowance of will. - Any executor,
devisee, or legatee named in a will, or any other person interested in the
estate, may, at any time after the death of the testator, petition the
court having jurisdiction to have the will allowed, whether the same be
in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition the court for
the allowance of his will.
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. devisee
2. executor
3. legatee
4. testator himself during his lifetime.
5. any person interested in the estate (creditor)
It is immaterial, as far as practice is concerned, by whom a will is
presented for probate, the only restriction being that before any person
may intervene in the proceedings had for the probate of a will, he should
be required to show an interest in the will or the property affected thereby,
either as executor or otherwise. For such purpose, it is sufficient that he
shows or produces prima facie evidence of his/her relationship to the
testator or his rights to the latter’s estate.
It should be noted, however, that the allegation of interest in the
estate merely entitles one to intervene in the probate of the will. Such
claim of interest does not entitle him to his claim.
Q Who may intervene in the probate of the will?
A Section 1, Rule 76 enumerates the persons who can intervene in the
probate of the will. Essentially, they are the same persons who can file
for the petition for the probate of a will.
1. devisee
2. executor
3. legatee
4. testator himself during his lifetime.
5. 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. The interest acquired in order that a person may be a party
thereto must be material and direct and not merely indirect or
contingent. (Teotico vs. Del Val)
Teotico v. Del Val, 13 SCRA 406 (1965)
FACTS:
Decedent Maria Mortera y Balsalobre vda. de Aguirre executed a
will leaving a legacy to Dr. Rene Teotico, husband of her neice and
universal heir Josefina Mortera. Vicente Teotico, son of Rene and Josefina,
and herein petitioner, filed a petition for the probate of the will before the
CFi of Manila. Ana Del Val Chan, 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, the
testatrix was physically and mentally incapable to execute the will, and the
will was executed under duress. The probate court allowed the opposition,
who further alleged that the legacy to Dr. Teotico was void, him being the
physician who took care of the testatrix during her last illness.

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ISSUE/S:
Whether the oppositor has the right to oppose as well as the
validity of the will.
HELD:
NO. 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, or in the will, or in the property to be affected by it either as
executor or as a claimant of the estate. 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. Under the terms
of the will, the oppositor has no right to intervene because she has no
interest in the estate either as heir, executor, administrator, nor does
she have any claim to any property affected by the will. Even if the will is
denied probate, Del Val will not acquire any share of the estate because
she is not a legal hair of the deceased. The relationship of the adopter is
limited between such adopter and adopted.
With regard to the validity of the will, 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. Lastly, there is no proof that Dr. 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.
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, 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.
Q When must a will be presented for probate?
A The will must be presented for probate
1. at anytime after the death of the testator
2. during the lifetime of the testator
! since there is no express limitation to probate a will, the probate of a
will is not subject to bar by any limitations
Q Can estoppel apply to probate proceedings?
A YES. Estoppel may find application in probate proceeding. A person
by his conduct may estop himself and his privies from
subsequently procuring the probate of a will. Long delay in
propounding the will for probate during which delay, the property of
the estate might have been transferred to subsequent purchasers for
value and without notice of the will may be taken as an estoppel to
apply for probate of the will. But to raise estoppel on the ground of
delay in propounding the will, it must be shown that not obstacle to
the assertion of the right to have the will probated existed.
Q Jong made a will naming Ricky as his voluntary heir. Can
Ricky, during Jong’s lifetie, file a petition to have the will
probated?
A NO since the will is to be probated during the lifetime of the testator,
then it should be testator himself, who should file the petition for
probate.
Q Why is the testator allowed to have his will probated during
his lifetime?
A In general, probate of a will during the testator’s lifetime is allowed so
that:
1. fraud may be avoided;
2. the testamentary capacity of the testator is easily proved if he
personally appears before the probate court.
3. connection of defects in the formalities of the will is facilitated
4. opposition is minimized.

(
(
(
(
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Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Sec. 2. Contents of petition. - A petition for the allowance of a will
must show, so far as known to the petitioner:
(1) The jurisdictional facts;
(2) The names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent;
(3) The probable value and character of the property of the estate;
(4) The name of the person for whom letters are prayed;
(5) If the will has not been delivered to the court, the name of the
person having custody of it.
But no defect in the petition shall render void the allowance of the
will, or the issuance of letters testamentary or of administration with the
will annexed.
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. The jurisdictional facts;
2. The names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent;
3. The probable value and character of the property of the estate;
4. The name of the person for whom letters are prayed;
5. If the will has not been delivered to the court, the name of the
person having custody of it.
Q What are the jurisdictional facts necessary in order for the RTC
to acquire jurisdiction to probate a will?
A The RTC acquires jurisdiction to probate a will when the following
jurisdictional facts are alleged:
1. that a person died leaving a will
2. in the case of a resident, that at the time of his death, he was a
resident within the territorial jurisdiction of the court, or in the
case of a non- resident, that he left an estate within such
territorial jurisdiction (Fernando vs. Crisostomo)
3. that the will has been delivered to the court and is in the
possession thereof (Salazar vs. CFI)
4. the value of the estate so that the proper court with jurisdiction
(whether R/MTC) may be determined.
! The law is silent as to the specific manner of bringing the jurisdictional
allegations before the court. 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. 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. This
precaution has been adopted by some attorneys to forestall its
disappearance, which has taken place in certain cases.
Fernando vs. Crisostomo, 90 SCRA 585 (1951)
FACTS:
This case involved 2 cases.
One: Guardianship of Rufino Crisostomo and his 4 minor children. In this
case, Hermogenes Fernando was appointed guardian of Rufino and his 4
minor children. When Rufino died, the children were left under the
guardianship of Hermogenes. 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.
Two: Intestate estate of Sps. Crisostomo. 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.
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, as nearest of kin, should not be appointed co-administrators of
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the Intestate Estate of said decedent either on account of their
incompetency or lack of moral qualifications.
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, so far as
known to the petitioner, the following:
1) the fact of the death of the testator, indicating the time and place of
such death;
2) the fact that the deceased left a will and attaching a copy of said
will;
3) the fact that the will was executed according to law;
4) whether the person named as executor consents to act as such, or
renounces his right to become an executor;
5) the names, ages, and residences of the heirs, legatees and devisees
of the decedent;
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; and
8) if the will has not been delivered to the court, the name of the
person having custody thereof (Salazar vs. CFI)
It is essential to the jurisdiction of a court to entertain probate
proceedings that the testator be dead, although it is enough if there be
proof sufficient to satisfy a statutory presumption of death by absence.
Q Example of a petition for allowance of a will.
A
1. that X died on January 1, 1992 and that he was a resident of
Makati at the time of his death;
2. that his estate has a proximate value of 20k;
3. that X is survived by Y, his wife, who is 30 years of age and a
resident of Makati; and 2 children 7 and 8 years of age
likewise a resident of Makati’
4. that Atty. D be appointed as administrator;
5. that the will is with Atty. D.
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.
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, or the issuance of
letters testamentary or of administration with the will annexed.” The
omission, therefore, from the petition of a statement of names, ages
and residences of the heirs, legatees and devisees of the testator,
cannot render the order void for want of jurisdiction, any more than
the omission from the petition of a statement as to the proper value
and character of the estate.
Q Would failure to pay docket fees affect the jurisdiction of the
probate court?
A Failure to pay docket fees is not jurisdictional. The court may, at any
time after the petition is filed, ask or require the party concerned to
pay the corresponding docket fees.

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,(fear,(or(
threats(

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua

(4)( That( it( was( not( produced( by( undue( or( improper( pressure( or(
influence(on(the(part(of(the(beneficiary,(or(some(other(person(for(his(
benefit(
(5)( That( the( signature( of( the( testator( is( genuine,( i.( e.( it( was( not(
procured(through(fraud(and(that(the(testator(intended(that(what(he(
executed(was(his(last(will(and(testament.
Sec. 3. Court to appoint time for proving will. - Notice thereof to
be published. When a will is delivered to, or a petition for the allowance
of a will is filed in, the court having jurisdiction, such court shall fix a
time and place for proving the will when all concerned may appear to
contest the allowance thereof, and shall cause notice of such time and
place to be published three (3) weeks successively, previous to the time
appointed, in a newspaper of general circulation in the province.
But no newspaper publication shall be made where the petition for
probate has been filed by the testator himself.
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. upon the filing of a petition for the proving a will
2. upon the delivery of a will to the court even without such
petition
Q On December 20, 1992, X, the custodian of Y’s will, delivered
said will to Branch 2 of Makati RTC. On December 22, 1992, he
filed a petition for probate of said will with Branch 3. Which of
the said courts acquired jurisdiction first?
A Branch 2. The jurisdiction of the RTC becomes vested upon the delivery
thereto of the will, even if no petition for its allowance was filed until
later because upon the will being deposited, the court could moto
proprio, have taken steps to fix the time and place for proving the will
and issue the corresponding notices. Where the petition for probate is
made after the deposit of the will, the petition is deemed to relate back
to the time when the will was delivered.
Q When jurisdiction vests in the RTC over the probate of a will,
what must the court do?
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. The
duty imposed by Section 3 of Rule 76 is imperative. Noncompliance
wherewith would be mockery of the law and of the last will of the
testator. Consequently, a court can moto proprio set the time and place
for proving the will delivered to it.
Q What should the notice of publication contain?
A The notice of publication should contain the following:
1. time of hearing
2. place of hearing
3. 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 the probate court lose its jurisdiction over the case if
the person who filed the petition for probate withdraws from
said case?
A NO. 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, for it is well established
principle that the proceeding for probate of a will is one in rem, and the
court acquires jurisdiction over all the persons interested in the estate
of a deceased person, whether he filed the petition for probate of a will.
Q Why must the court order be published?
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A Since a petition for probate of a will is a proceeding in rem, notice to
the whole world must be given in order to acquire jurisdiction.
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. In other words, the first
publication of the notice need not be made 21 days before the day
appointed for the hearing.
e.g. publication made on December 4, 11, and 18 and the hearing was
set for December 19. from the first publication to the date of the
hearing, there are only 15 days. Nevertheless, since prior to the hearing
date, the publication has been made for three weeks successively, then
the publication requirement is sufficiently satisfied.
Q What is meant by “newspapers of general circulation”?
A A newspaper of general circulation, if it is published for the
dissemination of local news and general information; if it has a bona
fide subscription list of paying subscribers; and if it is published at
regular intervals. The fact that there is another paper published that
has a few more subscribers and that other dailies also have a larger
circulation in that province is unimportant. The law does not require
that publication of the notice should be made in the newspaper with
the largest number of subscribers. No fixed number of subscribers is
necessary to constitute a newspaper of general circulation.
Q Can you publish the notice in ABANTE, 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. It is not necessary that the newspaper has the widest circulation
and the most number of readers. A bona fide circulation is sufficient.
Moreover, Abante is widely read by taxi, jeepney and tricycle drivers.
Q Is publication in the El Ponente sufficient?
A NO. The El Ponente is not a newspaper of general circulation since it
is only published and read by a few.
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.
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. Publication is no longer required as provided under the second
paragraph of Section 3, Rule 76, which provides that “no newspaper
publication shall be made where the petition for probate has been
filed by the testator himself.”
Sec. 4. Heirs, devisees, legatees, and executors to be notified by
mail or personally. - The court shall also cause copies of the notice of
the time and place fixed for proving the will to be addressed to the
designated or other known heirs, legatees, and devisees of the testator
resident in the Philippines at their places of residence, and deposited in
the post office with the postage thereon prepaid at least twenty (20)
days before the hearing, if such places of residence be known. A copy of
the notice must in like manner be mailed to the person named as
executor, if he be not be petitioner; also, to any person named as coexecutor not petitioning, if their places of residence be known. Personal
service of copies of the notice at least ten (10) days before the day of
hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will, notice shall be
sent only to his compulsory heirs.

Persons&to&be&Given&Notice:&
(1)(Designated(or(known(heirs,(legatees(and(devisees(
(2)(Executor(and(codexecutor(if(not(the(petitioner(
(
(

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua

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?
A The notice to be served upon heirs, legatees and devisees is
necessary only when they and their places of residence in the
Philippines are known. In other instances, 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.
What is indisputable to the jurisdiction of the court is the publication of
the notice is a newspaper of general circulation. The notice on
individual heirs, legatees and devisees is merely a matter of procedural
convenience to better satisfy in some instances the requirements of due
process.
Q Who must be furnished notices?
A Under Section 4, Rule 76, 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, legatees, and devisees of the testator”
who are residing in the Philippines.
! Be it noted that notice is required by this rule only if the residences of
the persons, above enumerated are known.
Q If the testator himself filed the petition for probate, should he
be given notice thereof?
A Not anymore. Paragraph 2, section 4, Rule 76 provides that “if the
testator asks for the allowance of his will, notice shall be sent only to
his compulsory heirs.”
Q Under the civil code, who are considered the compulsory heirs?
A Under article 887 of the New Civil Code, the following
1. legitimate children and descendants with respect to their
legitimate parents and ascendants
2. in default of the foregoing, legitimate parents and ascendants
with respect to their legitimate children and descendants
3. the widow or widower
4. acknowledged natural children and natural children by legal
fiction
5. other legitimate children
Q What about the executor, is he entitled to be given notice?
A It depends. If the executor is not the petitioner, he must have
notified of the petition for probate, otherwise, he need not be notified.
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, not a jurisdictional requisite. So much so
that even if the names of some legatees or heirs has been omitted from
the petition for allowance of the will, and therefore were not advised,
the decree allowing the will does not ipso facto become void for want of
jurisdiction. What is indispensable to the jurisdiction of the court is the
publication of the notice in a newspaper of general circulation.
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
return card would serve as proof of service of notice by registered mail;
while if the notice was sent through personal service, the receipt as
signed by the person, who received such, 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, you stand up
and say “Your Honor, we would like to mark the following as exhibits:
1. order of notice
2. affidavit of publication
3. actual copies of the newspapers where notice was published
4. registry return card/ sheriff’s return;
5. death certificate;
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

6. last will and testament;
…and then present your witnesses….
Sec. 5. Proof at hearing. - What sufficient in absence of contest. At
the hearing compliance with the provisions of the last two preceding
sections must be shown before the introduction of testimony in support
of the will. All such testimony shall be taken under oath and reduced to
writing. If no person appears to contest the allowance of the will, the
court may grant allowance thereof on the testimony of one of the
subscribing witnesses only, if such witness testify that the will was
executed as is required by law.
In the case of a holographic will, it shall be necessary that at least
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. In the absence of any such competent witness, and if the
court deem it necessary, expert testimony may be resorted to.
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, the petition
must introduce the following evidence:
1. evidence that the order of the court fixing the time and place
for proving the will has been published 3 weeks successively,
previous to the time appointed, in a newspaper of general
circulation in the province as directed by the court;
2. evidence that notice of such hearing has been served to the
known heirs, legatees and devisees of the testator resident in
the Philippines at least 20 days before the hearing
3. evidence that such notice has been served to the person
named as executor and to any person named as co- executor,
if their places of residence be known; and
4. 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.
Q When no person appears to oppose the probate of the will,
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, it may be
admitted to probate on the testimony of one of the attesting
witnesses, provided; it is sufficient to establish the due execution of
the will. However, where an attesting witness appears to be hostile
an adequate efforts have been exerted to have him testify at the trial,
his testimony can be dispensed with and the will may be allowed to
probate if there is enough evidence to justify its probate
! In an uncontested probate proceeding, the testimony of one
subscribing witness, if sufficient, will warrant the allowance of the
will. If however, the first of the subscribing witness called is unable to
testify that all the solemnities required by statute were observed, the
other subscribing witnesses must be produced, if living within the
jurisdiction of the court.
Q What if the will is contested?
A If the will is contested, all the subscribing witnesses must be
produced and the absence of any of them must be satisfactorily
shown to the court.
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. notice of the hearing for the allowance of the will has been
served to his compulsory heirs; and
2. at least one witness who knows the handwriting and signature
of the testator explicitly declare that the will and the
handwriting of the testator. In the absence of any such

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
competent witness, and if the court deem it necessary, an expert
testimony may be resorted to.(

(
• At(the(hearing,(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.!5)(
(a)(Notarial&Wills(–(Testimony(of(at(least(one(of(the(subscribing(
witnesses(may(be(allowed,(if(such(witness(testifies(that(the(will(
was(executed(as(required(by(law.(
(i)(If(all(subscribing(witnesses(reside(outside(the(province(–(
deposition(is(allowed((sec.!7)(
(ii)(If(the(subscribing(witnesses(are(dead,(insane(or(none(of(
them( resides( in( the( Philippines( –( The( court( may( admit(
testimony( of( other( witnesses( to( prove( the( sanity( of( the(
testator,(and(the(due(execution(of(the(will,(and(as(evidence(
of( the( execution( o( the( will,( it( may( admit( proof( of( the(
handwriting( of( the( testator( and( of( the( subscribing(
witnesses(or(of(any(of(them.((Sec.!8)(
(b)( Holographic& Wills( d( ( the( testimony( of( one( witness( who(
knows( the( handwriting( and( signature( of( the( testator.( In( the(
absence( thereof( and( if( the( court( deem( it( necessary,( expert(
testimony(may(be(resorted(to.(
(
(2)(Contested&Wills((Sec.!11)(
(a)( Notarial& Wills( –( ALL( subscribing( witnesses( AND( the( notary(
public( before( whom( the( will( was( acknowledged( must( be(
produced(and(examined.(
(
HOWEVER,(if(any(or(all(the(witnesses(
(i)(testify(against(the(execution(of(the(will,(
(ii)(do(not(remember(attesting(thereto,(
(iii)(are(of(doubtful(credibility,(
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.( (An! instance! where! a! party! may!
impeach!his!own!witness)(
(
(b)( Holographic& Wills( –( 3( witnesses( who( know( he( handwriting(
of( testator.( In( the( absence( thereof( and( if( the( court( deem( it(
necessary,(testimony(of(an(expert(witness(may(be(resorted(to,(
(
Sec. 6. Proof of lost or destroyed will. - Certificate thereupon. No
will shall be proved as a lost or destroyed will unless the execution and
validity of the same be established, and the will is proved to have been
in existence at the time of death of the testator, or is shown to have
been fraudulently or accidentally destroyed in the lifetime of the testator
without his knowledge, nor unless its provisions are clearly and distinctly
proved by at least two (2) credible witnesses. When a lost will is proved,
the provisions thereof must be distinctly stated and certified by the
judge, under the seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.
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. that the will has been duly executed by the testator (due
execution)
2. that the will was in existence when the testator dies or if it was
not, that it has been fraudulently or accidentally destroyed in the
lifetime of the testator, without his knowledge (loss or
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destruction under circumstances which would defeat an
inference of cancellation by the testator); and
3. 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. Those testifying from
hearsay are neither competent nor credible. Further, 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.
! It is not necessary to prove that the contents of the last will literally,
but a substantial proof of such contents is all that is required and if
only a part of the lost will can be proved, such part may be admitted
to probate.
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, although it may perhaps be proved by a
Photostat copy, or even a mimeographed or carbon copy or by other
similar means; if any, whereby the authenticity of the handwriting of
the deceased may be exhibited and tested before the probate court.
The lack of objection to the probate of a lost will does not relieve the
proponent thereof or the party interested in its probate from
establishing its due execution and proving clearly and distinctly the
provisions thereof by at least two credible witnesses, as provided for
in Section 6, Rule 76. A lost will cannot be admitted for probate on an
agreement or stipulation; evidence of it must be given as required by
statute.
Q When may secondary evidence be admitted in lieu of the
original will?
A When the evidence presented is insufficient to establish in a
satisfactory manner the loss of the alleged will, secondary evidence to
prove the contents of the will can thereof not be allowed, as the
allowance of such evidence is a violation of the Best Evidence Rule
(Araujo et al. vs. Celis)
Q When evidence sufficiently point to the loss of the will of the
deceased, such circumstance justify the presentation of
secondary evidence of its contents and of whether it was
executed with all the essential and necessary legal
formalities (Lim Billian vs. Suntay)
ARAUJO vs. CELIS, 6 PHIL 459 (1906)
FACTS:
Rosario Araujo inherited from her mother, Asuncion, the hacienda
known as Pangpang. She subsequently married Jose Celis, Gregoria’s’
son. Rosario died leaving no descendants or ascendants, but only
collateral relatives. Such relatives asked that the property inherited by
Rosario from her mother be delivered to them. The property, however, is
held by the Gregoria, who took possession of the same after the death
of her son Jose. He died a year after the death of Rosario in l889.
The defendant claims that Rosario died leaving a will in which she
bequeathed all of her property to her husband, Jose, and that the latter
having died without a will, she, therefore, succeeded to all of his
property, rights, and actions, thereby lawfully acquiring all the property
that had formerly belonged to her daughter-in-law. The problem,
however, is that the will could not be found alleging that insurgents had
burned the Court of Pototan where the will was kept. She instead offered
secondary parol evidence as to its contents. CFI allowed the evidence
over the objection of the collateral relatives of Rosario and ruled in favor
of Gregoria. Hence this appeal.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
ISSUE/S:
Whether secondary parol evidence is sufficient to prove Rosario’s will?
HELD:
NO. The loss of the alleged original will has not been sufficiently
established. The principal witness, 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 that as such there came into
his possession a copy of the will of Rosario which was introduced in
evidence in that action. However, he likewise testified that he never saw
the original of that will because the same was retained by the notary. He
likewise failed to affirm whether the copy in question was a simple or
certified copy. More importantly, he further testified that the will was
signed by two witnesses only. 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, and legally speaking such will could not then
have been probated or recorded.
As to the loss of the will, 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. Moreover, 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, which
provided that: “Notaries shall keep the protocols and books in the same
building where they live, in their custody, and shall be responsible
therefor.”
Their testimony is absolutely insufficient to establish in a satisfactory
manner the loss of the alleged will of Rosario Darwin, and the court below
should not have, therefore, allowed the secondary evidence introduced by
her as to the contents of the will, particularly in view of the fact that, as it
appears from the record, there had been pending since 1889 an action to
declare this very will null and void.
LIM BILLLIAN vs. SUNTAY, 63 PHIL 793 (1936)
FACTS:
Jose B. Suntay died in the City of Amoy, China. He married twice, the
first time to Manuela T. Cruz with whom he had several children now
residing in the Philippines, and the second time to Maria Natividad Lim
Billian with whom he had a son.
Apolonio Suntay, eldest son of the deceased by his first marriage,
filed the latter's intestate in the Court of First Instance of Manila. In the
same court, Maria Natividad Lim Billian also instituted the present
proceedings for the probate of a will allegedly left by the deceased.
According to Maria, before the deceased died in China he left with her
a sealed envelope (Exhibit A) containing his will and, also another
document (Exhibit B of the petitioner) said to be a true copy of the original
contained in the envelope. The will in the envelope was executed in the
Philippines, with Messrs. Go Toh, Alberto Barretto and Manuel Lopez as
attesting witnesses. Go Toh, as attorney-in-fact of the petitioner, arrived in
the Philippines with the will in the envelope and its copy Exhibit B. While
Go Toh was showing this envelope to Apolonio Suntay and Angel Suntay,
children by first marriage of the deceased, they snatched and opened it
and, after getting its contents and throwing away the envelope, they fled.
Upon these allegations, Maria asks in this case that the brothers
Apolonio, Angel, Manuel and Jose Suntay, children by the first marriage of
the deceased, who allegedly have the document contained in the envelope
which is the will of the deceased, be ordered to present it in court, that a
day be set for the reception of evidence on the will, and that the petitioner
be appointed executrix pursuant to the designation made by the deceased
in the will.
In answer to the court's order to present the alleged will, the brothers
Apolonio. Angel, Manuel and Jose Suntay, stated that they did not have
the said will and denied having snatched it from Go Toh.
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.
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HELD:
YES. The evidence is sufficient to establish the loss of the document
contained in the envelope. Oppositors' answer admits that, according to
Barretto he prepared a will of the deceased to which he later became a
witness together with Go Toh and Manuel Lopez, and that this will was
placed in an envelope which was signed by the deceased and by the
instrumental witnesses. In court there was presented and attached to
the case an open and empty envelope signed by Jose B. Suntay, Alberto
Barretto, Go Toh and Manuel Lopez. 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, Go Toh and
Manuel Lopez as attesting witnesses. These tokens sufficiently point to
the loss of the will of the deceased, 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.
The trial of this case was limited to the proof of loss of the will, and
from what has taken place we deduce that it was not petitioner's
intention to raise, upon the evidence adduced by her, the other points
involved herein, namely, as we have heretofore indicated, 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. The testimony of
Alberto Barretto bears importantly in this connection.
Q Could a lost holographic will be probated?
A NO. Oral and/or secondary evidence cannot be introduced to prove
the existence and contents of a lost holographic will because the
authenticity of the signatures cannot be proved by oral testimony
! Note that the SC in the Rodelas case did not rule definitely on this
matter. The SC merely used the word “may.” Further, Atty.
Gesmundo’s opinion is on accord with Atty. Sebastian’s that a lost
holographic will cannot be admitted nor proved in probate.
! When it comes to lost wills, only a lost notarial will can be probated,
not a lost holographic will.
Q What is the effect of a lost will said to be seen last in the
possession of the testator?
A Where a will which cannot be found is shown to have been in the
possession of the testator, when last seen, the presumption is in the
absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the
testator has already access to the will and it cannot be found after his
death. It will not be presumed that such will has been destroyed by
any other person without the knowledge or authority of the testator.
(Gago vs. Mamuyac)
Q Who has the burden of proof?
A In a proceeding to probate a will, the burden of proof is upon the
proponent clearly to establish not only its execution but also its
existence. Having proved its execution by the proponents, the burden
is on the contestant to show that it has been revoked. (Gago vs.
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, Rule 76 provides: “When a lost will is proved, the
provisions thereof must be definitely stated and certified by the judge
under the seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.”
Sec. 7. Proof when witnesses do not reside in province. - If it
appears at the time fixed for the hearing that none of the subscribing
witnesses resides in the province, but that the deposition of one or more
of them can be taken elsewhere, the court may, on motion, direct it to
be taken, and may authorize a photographic copy of the will to be made
and to be presented to the witness on his examination, who may be
asked the same questions with respect to it, and to the handwriting of
the testator and others, as would be pertinent and competent if the
original will were present.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
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, the taking of the deposition of
one or more of them may be directed by the court at the time fixed for
the hearing.
Q In such a case, how may the will be proved?
A A photographic copy of the will, upon authority of the court, may be
presented to the witnesses on his examination, the deponents may be
asked the same questions with respect to the will, and the handwriting
of the testator and others, as would be pertinent and competent if the
original will were present.
Q What is the nature of the will in Section 7?
A Section 7 applies only to notarial wills.
Q At what distance from the jurisdiction of the probate court
must the witness be, 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.
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.
Sec. 8. Proof when witnesses dead or insane or do not reside in
the Philippines. - If it appears at the time fixed for the hearing that
the subscribing witnesses are dead or insane, or that none of them
resides in the Philippines, the court may admit the testimony of other
witnesses to prove the sanity of the testator, and the due execution of
the will; and as evidence of the execution of the will, it may admit proof
of the handwriting of the testator and of the subscribing witnesses, or of
any of them.
Q What if all the subscribing witnesses are dead, 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. After all, a
will may generally be admitted to probate upon other legal and
satisfactory proof, unless the law provides that depositions must be
taken. The signature and the handwriting of the testator and the
witnesses must be proved.
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. There would be a stronger case if the due execution can be
sufficiently established by the remaining witnesses and substantiated by
the notary public who prepared and notarized the will. The bottom line
is that if the testimony of any of the surviving subscribing witnesses can
no longer be taken even through the taking of depositions, proof of the
will by non- subscribing witnesses cannot be authorized.
Sec. 9. Grounds for disallowing will. - The will shall be disallowed in
any of the following cases:
(1) If not executed and attested as required by law;
(2) If the testator was insane, or otherwise mentally incapable to make
a will, at the time of its execution;
(3) If it was executed under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence,
on the part of the beneficiary, or of some other person for his
benefit;
(5) If the signature of the testator was procured by fraud or trick, and
he did not intend that the instrument should be his will at the time
of fixing his signature thereto.

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RELATED&CIVIL&CODE&PROVISIONS:&
Art.& 787.( 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.((n)(
Art.& 788.( If( a( testamentary( disposition( admits( of( different(
interpretations,(in(case(of(doubt,(that(interpretation(by(which(the(
disposition(is(to(be(operative(shall(be(preferred.((n)(
Art.&791.(The(words(of(a(will(are(to(receive(an(interpretation(
which( will( give( to( every( expression( some( effect,( rather( than( one(
which( will( render( any( of( the( expressions( inoperative;( and( of( two(
modes( of( interpreting( a( will,( that( is( to( be( preferred( which( will(
prevent(intestacy.((n)(
Art.&795.(The(validity(of(a(will(as(to(its(form(depends(upon(the(
observance(of(the(law(in(force(at(the(time(it(is(made.((n)((
Art.&796.(All(persons(who(are(not(expressly(prohibited(by(law(
may(make(a(will.((662)(
Art.& 797.( Persons( of( either( sex( under( eighteen( years( of( age(
cannot(make(a(will.((n)(
Art.&798.(In(order(to(make(a(will(it(is(essential(that(the(testator(
be(of(sound(mind(at(the(time(of(its(execution.((n)(
Art.& 802.( A( married( woman( may( make( a( will( without( the(
consent(of(her(husband,(and(without(the(authority(of(the(court.((n)(
&Art.& 804.( Every( will( must( be( in( writing( and( executed( in( a(
language(or(dialect(known(to(the(testator.((n)(
Art.& 805.( Every( will,( other( than( a( holographic( will,( 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,(and(
by( his( express( direction,( and( attested( and( subscribed( by( three( or(
more(credible(witnesses(in(the(presence(of(the(testator(and(of(one(
another.(
The(testator(or(the(person(requested(by(him(to(write(his(name(
and( the( instrumental( witnesses( of( the( will,( shall( also( sign,( as(
aforesaid,(each(and(every(page(thereof,(except(the(last,(on(the(left(
margin,(and(all(the(pages(shall(be(numbered(correlatively(in(letters(
placed(on(the(upper(part(of(each(page.(
The( attestation( shall( state( the( number( of( pages( used( upon(
which(the(will(is(written,(and(the(fact(that(the(testator(signed(the(
will(and(every(page(thereof,(or(caused(some(other(person(to(write(
his( name,( under( his( express( direction,( in( the( presence( of( the(
instrumental( witnesses,( and( that( the( latter( witnessed( and( signed(
the( will( and( all( the( pages( thereof( in( the( presence( of( the( testator(
and(of(one(another.(
If( the( attestation( clause( is( in( a( language( not( known( to( the(
witnesses,(it(shall(be(interpreted(to(them.((n)(
Art.& 806.( Every( will( must( be( acknowledged( before( a( notary(
public( by( the( testator( and( the( witnesses.( The( notary( public( shall(
not(be(required(to(retain(a(copy(of(the(will,(or(file(another(with(the(
Office(of(the(Clerk(of(Court.((n)(
Art.& 807.( If( the( testator( be( deaf,( or( a( deafdmute,( he( must(
personally( read( the( will,( if( able( to( do( so;( otherwise,( he( shall(
designate(two(persons(to(read(it(and(communicate(to(him,(in(some(
practicable(manner,(the(contents(thereof.((n)(

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua

Art.& 808.( If( the( testator( is( blind,( the( will( shall( be( read( to( him(
twice;(once,(by(one(of(the(subscribing(witnesses,(and(again,(by(the(
notary(public(before(whom(the(will(is(acknowledged.((n)(
Art.&809.(In(the(absence(of(bad(faith,(forgery,(or(fraud,(or(undue(
and( improper( pressure( and( influence,( 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.((n)(
Art.&810.(A(person(may(execute(a(holographic(will(which(must(be(
entirely( written,( dated,( and( signed( by( the( hand( of( the( testator(
himself.(It(is(subject(to(no(other(form,(and(may(be(made(in(or(out(of(
the(Philippines,(and(need(not(be(witnessed.((678,(688a)(
Art.&811.(In(the(probate(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.(If(the(will(is(contested,(at(least(three(
of(such(witnesses(shall(be(required.(
In( the( absence( of( any( competent( witness( referred( to( in( the(
preceding( paragraph,( and( if( the( court( deem( it( necessary,( expert(
testimony(may(be(resorted(to.((619a)(
Art.& 812.& In( holographic( wills,( 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.((n)(
Art.& 813.( When( a( number( of( dispositions( appearing( in( a(
holographic( will( are( signed( without( being( dated,( and( the( last(
disposition( has( a( signature( and( a( date,( such( date( validates( the(
dispositions( preceding( it,( whatever( be( the( time( of( prior(
dispositions.((n)(
Art.& 814.( In( case( of( any( insertion,( cancellation,( erasure( or(
alteration( in( a( holographic( will,( the( testator( must( authenticate( the(
same(by(his(full(signature.((n)(
Art.&815.(When(a(Filipino(is(in(a(foreign(country,(he(is(authorized(
to( make( a( will( in( any( of( the( forms( established( by( the( law( of( the(
country( in( which( he( may( be.( Such( will( may( be( probated( in( the(
Philippines.((n)(
Art.&816.(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,(or(according(to(the(formalities(observed(in(
his( country,( or( in( conformity( with( those( which( this( Code(
prescribes.((n)(
Art.&817.(A(will(made(in(the(Philippines(by(a(citizen(or(subject(of(
another( country,( which( is( executed( in( accordance( with( the( law( of(
the(country(of(which(he(is(a(citizen(or(subject,(and(which(might(be(
proved( and( allowed( by( the( law( of( his( own( country,( shall( have( the(
same( effect( as( if( executed( according( to( the( laws( of( the(
Philippines.((n)(
Art.& 818.( Two( or( more( persons( cannot( make( a( will( jointly,( or( in(
the( same( instrument,( either( for( their( reciprocal( benefit( or( for( the(
benefit(of(a(third(person.((669)(
Art.& 819.( Wills,( prohibited( by( the( preceding( article,( executed( by(
Filipinos( in( a( foreign( country( shall( not( be( valid( in( the( Philippines,(
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even( though( authorized( by( the( laws( of( the( country( where( they(
may(have(been(executed.(733a)((
Q What is testamentary capacity?
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. To constitute a sound mind
and disposing memory, it is not necessary that the mind shall be
wholly broken, unimpaired or unshattered by disease or otherwise or
that the testator be in possession of all his reasoning faculties.
(Torres et al. vs. Lopez)
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, physical infirmities, feebleness of mind, weakness of
memory, 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, he still possesses that degree of reason and of
life and that strength of mind to form fixed intention. The question is
not so much what was the degree of memory possessed by the
testator, as he had the disposing memory? (Torres et al. vs. 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, not being founded on facts which they
have observed in person, the former would be preferred.
Q What if a guardian is named for the testator alleged to be
incapacitated?
A When a guardian is named for the testator alleged to be
incapacitated, a presumption of his mental infirmity is created.
However, the appointment of such guardian is not conclusive with
respect to the mental condition of a ward. The presumption of mental
infirmity may still be overcome by evidence showing that the testator,
at the time he executed his will, was in fact, of sound and disposing
memory(Torres et al. vs. Lopez)
Q What is undue influence?
A Undue influence is that which compels the testator to do that which
is against his will, from fear the desire of peace or from other feeling
which he is unable to resist. (Torres et al. vs. Lopez)
Q If someone wants to oppose probate, what must he do?
A He should file an opposition in court, which would state his
objections and he should also send a copy to the proponent.
Q What happens if the will is contested?
A All subscribing witnesses, if present in the Philippines, should testify.
If anyone of them should be outside of the jurisdiction of the court,
then his deposition should be taken.
Q What if one of the witnesses opposes probate?
A The court may still allow probate if there are other evidence (i.e.
other witnesses, secondary evidence)
Q Is the proponent bound to present all the witnesses?
A YES especially when the will is contested. If the proponent presents
only one witness, while the opposition presents the other two, and
the proponent himself does not oppose, then it would clearly weaken
the cause of the proponent.

Substantial& Compliance& Rule( –( If( the( will( has( been( executed( in(
substantial( compliance( with( the( formalities( of( the( law,( and( the(
possibility( of( bad( faith( and( fraud( is( obviated,( said( will( should( be(
admitted(to(probate.(

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua

(
• Separate& Wills& which( contain( essentially( the( same( provision( and(
pertain( to( properties( which( in( all( probability( are( conjugal( in(
nature,(practical(considerations(dictate(their(joint(probate.(
(
Sec. 10. Contestant to file grounds of contest. - Anyone appearing
to contest the will must state in writing his grounds for opposing its
allowance, and serve a copy thereof on the petitioner and other parties
interested in the estate.

Contestant&Must:&
(1)(State(in(writing(his(grounds(for(opposing(the(allowance(of(the(
will;(and(
(2)(Serve(a(copy(thereof(to(petitioner(and(other(interested(parties.(
Sec. 11. Subscribing witnesses produced or accounted for where
will contested. - If the will is contested, all the subscribing witnesses,
and the notary in the case of wills executed under the Civil Code of the
Philippines, if present in the Philippines and not insane, must be
produced and examined, and the death, absence, or insanity of any of
them must be satisfactory shown to the court. If all or some of such
witnesses are present in the Philippines but outside the province where
the will has been filed, their deposition must be taken. If any or all of
them testify against the due execution of the will, or do not remember
having attested to it, or are otherwise of doubtful credibility, the will
may, nevertheless, 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.
If a holographic will is contested, 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; in the absence of any competent witness, and if the court
deem it necessary, expert testimony may be resorted to.
Q In case the will is contested, must all the attesting witnesses
be produced and examined before the court?
A It is true that the rule prevailing in this jurisdiction is that when a will is
contested, the attesting witnesses must be called to prove the will or a
showing must be made that they cannot be had, but that does not
necessarily mean that they must be brought bodily before the court. It
is their testimony, which is needed, and not their actual personal
presence in the courtroom. Hence, 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, 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 questions with
respect to it as if it were the original will. (Aldanese vs. Salutillo)
No will can be proved unless all subscribing witnesses, alive and
within the control of the process of the court are produced to testify.
(Cabang vs. Delfinado)
When the petition for probate of a will is contested, the proponent
should introduce all three of the attesting witnesses, if alive and within
the reach of the process of the court; and the execution of the will
cannot be considered sufficiently proved by the testimony of only one,
without the satisfactory explanation of the failure to produce the other
two. Nevertheless, an objection to the probate of the will on such
ground cannot be made for the first time on appeal. (Avera vs. Garcia)

Note:( When( the( authenticity( of( the( will( is( not( being( questioned,(
there( is( no( necessity( of( presenting( the( three( witnesses( required(
under(Article(811(of(the(Civil(Code.(
Sec. 12. Proof where testator petitions for allowance of
holographic will. - Where the testator himself petitions for the probate
of his holographic will and no contest in filed, the fact that he affirms
that the holographic will and the signature are in his own handwriting,
shall be sufficient evidence of the genuineness and due execution
thereof. If the holographic will is contested, the burden of disproving the
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genuineness and due execution thereof shall be on the contestant. The
testator may, in his turn, present such additional proof as may be
necessary to rebut the evidence for the contestant.
Q What happens if after due execution, loss has been
established. What will the courts do?
A The court will certify that the provisions of the lost will had been truly
proved.
Q What if the will was not lost?
A The courts will issue a certificate in accordance with the provisions of
Section 13.
Sec. 13. Certificate of allowance attached to proved will. - To be
recorded in the Office of Register of Deeds. If the court is satisfied, upon
proof taken and filed, that the will was duly executed, and that the
testator at the time of its execution was of sound and disposing mind,
and not acting under duress, menace, and undue influence, or fraud, a
certificate of its allowance, signed by the judge, and attested by the seal
of the court shall be attached to the will and the will and certificate filed
and recorded by the clerk. Attested copies of the will devising real estate
and of certificate of allowance thereof, shall be recorded in the register
of deeds of the province in which the lands lie.
RULE 77
Allowance of a Will Proved Outside of the Philippines and
Administration of Estate Thereunder
Sec. 1. Will proved outside Philippines may be allowed here. Wills proved and allowed in a foreign country, according to the laws of
such country, may be allowed, filed, and recorded by the proper Court
of First Instance in the Philippines.
Q
A

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, 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, he is authorized to make a
will in any of the forms established by the law of the country in
which he may be. Such will may be probated in the Philippines
(Article 815)

• It( is( a( requirement( that( a( will( that( was( probated( in( a( foreign(
country(be(redprobated(in(the(Philippines.(If(the(decedent(owns(
properties(in(different(countries,(separate(proceedings(must(be(
had(to(cover(the(same.(
(
Sec. 2. Notice of hearing for allowance. - When a copy of such
will and of the order or decree of the allowance thereof, both duly
authenticated, are filed with a petition for allowance in the Philippines,
by the executor or other person interested, in the court having
jurisdiction, such court shall fix a time and place for the hearing, and
cause notice thereof to be given as in case of an original will presented
for allowance.

(
What&should&be&Filed&
Petition(for(allowance(accompanied(with:(
(1)(Authenticated(copy(if(the(will(
(2)(Authenticated(decree(of(the(allowance(thereof.(
The( court( will( then( fix( a( time( and( place( for( hearing( and( cause(
notice(thereof(to(be(given.(
(

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Sec. 3. When will allowed, and effect thereof. - If it appears at
the hearing that the will should be allowed in the Philippines, the court
shall so allow it, and a certificate of its allowance, signed by the judge,
and attested by the seal of the court, to which shall be attached a
copy of the will, shall be filed and recorded by the clerk, and the will
shall have the same effect as if originally proved and allowed in such
court.
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, the
applicant must introduce evidence to establish:
1. the due execution of the will in accordance with the foreign laws;
2. that the testator has his domicile in the foreign country and not in
the Philippines
3. that the will has been admitted to probate in such country
(Fluemer v. Hix)
4. the fact that the foreign tribunal is a probate court
5. the laws of a foreign country on procedure and allowance of wills
(Suntay v. 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.(
• In(the(absence(of(proof(of(the(foreign(law,(it(is(presumed(that(it(is(
the(same(as(that(in(the(Philippines.(
SUNTAY v. SUNTAY, 95 PHIL. 500 (1954)
FACTS:
Jose Suntay (a Filipino citizen and resident of RP) died in China,
leaving real and personal properties in the Philippines and a house in
China. He left 9 children in the first marriage and a child named Silvino in
the second marriage with Maria Natividad who survived him. Intestate
proceeding was held in the CFI of Bulacan and Federico (son from the 1st
marriage) was named administrator. Afterwards, 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. Jose
also executed a will in China in January 1931. This petition was denied
because of the loss of the RP will and the insufficiency of the evidence to
establish the loss. 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.
In the meantime, the Pacific War supervened. After liberation,
Silvino filed a petition in the intestate proceedings for the probate of the
will executed in China in January 1931.
ISSUE:
Whether the China Will may be probated.
HELD:
NO. The China will may be probated if the following requisites are
established:
1. The fact that the foreign tribunal is a probate court. In the
absence of proof that the municipal district court of Amoy, China is
a probate court and on the Chinese law of procedure in probate
matters, 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. It is a proceeding in rem and for the
validity of such proceedings, personal notice or by publication, or
both to all interested parties must be made
2. The laws of a foreign country on procedure and allowance of wills.
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, the proceedings cannot be
deemed to be for the probate of a will, as it was not done in
accordance with the basic and fundamental concepts and
principles followed in the probate and allowance of wills.

38 |

Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

Consequently, the will referred to therein cannot be allowed,
filed and recorded by a competent court of this country.
Q
A

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, 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. (Suntay v. Suntay)
In the absence of evidence to the contrary, foreign laws on a
particular subject are presumed to be the same as those of the
Philippines (Miciano v. 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.(
(3)( After( payment( of( just( debts( and( expenses( of( administration,(
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.(
&
Note:(Venue(for(the(petition(for(redprobate(is(the(same(as(that(
provided(for(in(Rule(73.(
(
Sec. 4. Estate, how administered. - When a will is thus allowed,
the court shall grant letters testamentary, or letters of administration
with the will annexed, and such letters testamentary or of
administration, shall extend to all the estate of the testator in the
Philippines. Such estate, after the payment of just debts and expenses
of administration, shall be disposed of according to such will, so far as
such will may operate upon it; and the residue, if any, shall be
disposed of as is provided by law in cases of estates in the Philippines
belonging to persons who are inhabitants of another state or country.
Q
A

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. (Miciano v. Brimo)

Q

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 where it was granted, so that an administrator
appointed in one state or country has no power over property in
another state or country (Leon and Ghezzi v. Manufacturers Life
Insurance Corp.)

A

LEON & GHEZZI v. MANUFACTURERS LIFE INSURANCE
COMPANY, 90 PHIL 459 (1951)
FACTS:
Basil Gordon Butler, a former resident of the Philippines died in
New York leaving a will duly probated in the Surrogate’s Court of New
York County. James Ross, Sr., James Madison Ross, Jr., and Edward
Selph were named executers in said will.
In the will, the residuary clause bequeathed all the remaining
properties to Mercedes De Leon of Maypajo, Caloocan, Rizal, personal
effects were to be delivered to her, but money and other securities were
to be held in trust for her benefit by said executors. And as Butler
believed that Mercedes was not of sound judgment, discretion was left
to the executors as to the decision on what would be more
advantageous to Mercedes.
James Ross, the court appointed trustee, bought an annuity
from the Manufacturers Life at its head office in Toronto, Canada, paying
$ 17,091.03 as combined premiums. The contract stipulated that the
death of Mercedes, the capital sum was to be paid back to James Ross.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
The estate was settled and the proceedings closed. Mercedes
began receiving her monthly allowance. With the probable intent of getting
hold of the entire sum of the annuity, Mercedes sought to have the will
probated in the CFI of Manila. She also secured the appointment of Ghezzi
as administratrix with a will annexed. 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 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.
ISSUE/S:
Whether the administratrix is entitled to an accounting of the
annuity
HELD:
NO. 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. The original
administrator of the estate had invested in an annuity in Canada, under a
contract executed in that country. Hence, Canada is the situs of the
money.
• When a person dies intestate owning property in the country of his
domicile as well as in a foreign country, administration shall be had in
both countries. That which is granted in the jurisdiction of the
decedent’s domicile is termed principal administration, while any
other administration is termed ancillary administration.
RULE 78
Letters of Testamentary and of Administration
When and To Whom Issued
Sec. 1. Who are incompetent to serve as executors or
administrators. - No person is competent to serve as executor or
administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the
trust by reason of drunkenness, improvidence, or want of
understanding or integrity, or by reason of conviction of an
offense involving moral turpitude.

Q
A

Executor
Nominated by the testator and
appointed by court

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),
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).
Compensation may be provided for
by the testator in the will
otherwise Sec. 7, Rule 85 will be
followed.
Q
A

Who&Can&Administer&the&Estate:&
(a)(Executor(
(b)(Administrator(
(c)(Administrator(with(a(will(annexed(
(
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. If the person
named is a woman, she is properly called an executrix.

39 |

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, or the executor/s is/are incompetent,
refuse the trust, or fail to give bond.
If the person appointed by the court is a woman, then she is
properly called an administratrix
Strictly speaking, 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.” An administrator is the
person appointed in case there is no will.

Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

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.

Required unless exempted by law.

Compensation is governed by Sec.
7, Rule 85.

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. Hence, the judicial
administrator is the legal representative not only of the testate or
intestate estate but also of the creditor, and the heirs and legatees,
inasmuch as he represents their interest.

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. A reading of Section 1, Rule 78 would
yield the inference that a person who is:
1. of age;
2. a resident of the Philippines; and
3. the court deems him fit (e.g. not a drunkard); may be an
administrator or executor

Q
A

Who are incompetent to act as executors or administrators?
Under Section 1 of Rule 78, the persons who are disqualified or
incompetent to serve as executors or administrators are the
following:
1. minors;
2. non- residents of the Philippines;
3. those who, in the opinion of the court, are unfit to execute the
duties of the trust by reason of:
(a) drunkenness;

• Any(COMPETENT(person(may(serve(as(executor(or(administrator.(
(
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, that funds of the estate in their hands
are trust funds, and that they may be held to responsibilities and
duties of trustees. An administrator occupies a position of the
highest trust and confidence. He is required to exercise reasonable
diligence and act in entire good faith in the performance of that
trust.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
(b) improvidence;
(c) want of understanding;
(d) want of integrity;
(e) conviction of an offense involving moral turpitude
4. The executor of an executor cannot administer the estate of the
first testator (Beda)
Q
A

Q
A

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, a minor is incapacitated to
enter into contracts. He needs, always, the assistance of a guardian
or legal representatives, to exercise any valid act.
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, however,
notwithstanding this, the courts, charged with the responsibilities of
protecting the estates of deceased persons, wards of the estate, etc.
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. (Guerrero vs. Teran)

Q
A

• 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,( and( liable( to( be( lost( or( diminished( in( value,( in( case( the(
administration(should(be(committed(to(the(improvident(person.(
Q
A

Is being a gambler a disqualification?
Although being a gambler is not enumerated as a ground for
disqualification, if it is of such degree as to render him unfit or
unsuitable for the position of executor or administrator, then it
amounts to a disqualification.

Q
A

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.

• (Want(of(understanding(is(a(disqualification(where(it(amounts(to(lack(

of(intelligence,(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,( such( as( would( or( might( subject( one( to( sinister(
influence( or( coercion( against( the( general( interest( of( the( estate( will(
constitute(a(sufficient(objection.

FACTS:

ISSUE/S:
Whether administrators or guardians must be residents of the
Philippines to be qualified for appointment as such?

Q
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.(

• The(drunkenness(contemplated(by(this(statute,(undoubtedly,(is(that(
excessive,( inveterate( and( continued( use( of( intoxicants,( 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.(
(
40 |

Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

What is meant by “want of integrity”?
Want of integrity generally connotes a person’s lack of credibility as
to affect his honesty.

• To(sustain(a(judgment(of(want(of(integrity(–(the(accusation(should(be(
certain( and( grave( in( its( nature,( and( must( be( established( by( proof(
which(would(at(least(approach(the(certainty(required(for(conviction(
in(a(criminal(prosecution.(
Moral& Turpitude& –& an( act( of( baseness,( vileness( or( depravity( in( the(
private(and(social(duties(which(a(man(owes(his(fellow(men,(to(society(
in( general,( contrary( to( the( accepted( and( customary( rule( of( right( and(
duty( between( man( and( woman( or( conduct( contrary( to( justice,(
honesty,(modesty(or(good(morals.(
(
Q
A

HELD:
NO. there is nothing in the law that requires the courts to appoint
residents only as administrators or guardians. However, notwithstanding
the fact that there are no statutory requirements upon this question, the
courts, charged with the responsibilities of protecting the estates of
deceased persons, wards of the estate, etc., will find much difficulty in
complying with this duty by appointing administrators and guardians who
are not personally subject to their jurisdiction. Notwithstanding that there
is no statutory requirement, 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.

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.

Q
A

GUERRERO v. TERAN, 13 PHIL 212 (1090)
Leopoldo Teran was appointed as administrator of the estate of
Antonio Sanchez Munoz on September 17, 1901. Maria Munoz Gomez was
thereafter appointed by the CFI of Albay on March 18, 1902 as guardian
for the minors Maria Manuela and Maria del Carmen Sanchez Munoz. While
some indications show that Teran continued to act as administrator 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, 1902 until October 6, 1906 and
therefore as such guardian and the administratrix of the estate of said
minors, must be held responsible for the property belonging to the minors
during the period while she was their actual guardian. On October 6, 1906,
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.
From the order annulling the appointment of Maria Munoz her lawyers
appealed to the SC, which appeal was subsequently withdrawn therefore
making the order final.

What is meant by improvidence?
Improvidence generally connotes unwise or ill-advised spending.

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.

Q
A

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.

Q

Why are drunkards, convicts, etc. disqualified or
incompetent to serve as executor or administrator in the
discretion of the court?
Drunkards, convicts, etc. maybe unfit, in the opinion of the court, to
discharge the duties of an executor or administrator. It must be
noted, however, that the unfitness of a person to act as executor or
administrator by reason of drunkenness, conviction, etc. depends
solely on the discretion of the court.

A

Q
A

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,
administrator, guardian of an estate, or trustee, in like manner as an
individual. However, it cannot be appointed guardian over the
person of the ward.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua

Are there other grounds for disqualification or incompetency?
YES. The SC has held that courts may likewise refuse to appoint a
person as executor or administrator on the ground of unsuitableness,
as for instance, when such person has an adverse interest or is hostile
to those immediately interested in the estate to such an extent as to
render his appointment inadvisable. The determination of a 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, unless it appears affirmatively that
the court below is in error. (Navas Sioca v. Garcia)

Q
A

NAVAS v. GARCIA, 44 PHIL. 711 (1923)
FACTS:
When Geronimo Uy Coque died, Jose Garcia was appointed by
the Samar CFI as the administrator of his estate. Appellant Juana Navas
Sioca, the surviving spouse, maintained that the court erred in not
appointing her administrator instead of Jose Garcia.
ISSUE/S:
Whether the court erred in appointing Garcia.
HELD:
NO. the question raised upon appeal was considered res judicata
since no appeal had been taken from the CFI order. Even though a
probate court cannot just disregard the preferential rights of the surviving
spouse over the estate, it can still appoint another person should the
spouse be considered unsuitable. Whether the person is suitable depends
upon the sound discretion of the probate court. It cannot be interfered
with on appeal unless there was clear error on the CFI’s part.
In this case, the LC found that Navas had an adverse interest in
the estate of such a character that would render her as an unsuitable
administrator. Unsuitableness may consist in adverse interest in some kind
or hostility to those immediately interested in the estate.
(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)

X keeps on borrowing from the testator and he cannot even
support his own family. Nevertheless, he was named as the
executor. As judge, 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,
since the appointment of the executor is left solely to the testator. The
presumption is that he was in full possession of his mental faculties at
the time the will was written, so it is just to comply with his will
because it is to be presumed that he had good reasons for doing so.
Should the court, given its discretion, determine that the unworthiness,
incapacity, ineptitude and unfitness of such person is manifest and
real, it can disapprove such appointment as directed by the testator.
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. 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.
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.

Q

A

Sec. 2. Executor of executor not to administer estate. - The
executor of an executor shall not, as such, administer the estate of the
first testator.
Q
A

Explain Section 2, Rule 78 of the Rules of Court
Section 2, Rule 78 provides that an executor of an executor cannot
administer the estate of the first testator.

41 |

Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

Q
A

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.

Q
A

Illustrate the prohibition on executor of an executor.
A, in his will appoints B as executor and B, in turn, appoints C in his
own will as executor. If A and B die, C can only administer B’s estate
but not A’s.

Sec. 3. Married women may serve. - A married woman may serve
as executrix or administratrix, and the marriage of a single woman
shall not affect her authority so to serve under a previous
appointment.
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.

Sec. 4. Letters testamentary issued when will allowed. - When
a will has been proved and allowed, the court shall issue letters
testamentary thereon to the person named as executor therein, if he is
competent, accepts the trust, and gives bond as required by these
rules.

(
Letters&Testamentary(–(is(an(authority(issued(to(an(executor&named(in(
the(will(to(administer(the(estate.(
(
Letters& of& Administration( –( is( an( authority( issued( by( the( court( to( a(
COMPETENT( person( to( administer( the( estate( of( the( deceased( who(
died(intestate.(
(
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.(
(
Q
A

Who issues letters testamentary?
The Clerk of Court by authority of a probate judge issues letters
testamentary

Q
A

When are letters testamentary issued?
After the will has been filed and an appropriate probate had wherein
the will passes probate.

Q

Is the date if such issuance the point of reckoning as
regards the effectivity of the letters testamentary?
NO. the letters retroact to the day of the testator’s death.

A
Q
A
Q

A

May an executor refuse the trust when in consideration of
such refusal the heirs bribed him?
NO. He may not refuse the trust by reason of public policy.
Is Section 4, Rule 78 mandatory in the sense that when a
will has been proved or allowed, 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, 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, notwithstanding the fact
that he was named as such by the testator. (Mercado v. Vda. De
Jaen)
MERCADO vs. GORORDO VDA. DE JAEN, 64 PHIL. 75 (1937)

FACTS:
Msgr. Gorordo, the retired bishop of Cebu, died leaving a will.
Said will instituted his sister, herein respondent, Maria Gorordo Vda. De
Jaen as his universal heir and in case of her death, his nieces Telesfora

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Jaen and Cesorea Gorordo. Fr. Emiliano Mercado, a parish priest of San
Nicolas, Cebu, was named as an executor and in his absence, Fr. Alejandro
Espina, parish priest of Cebu Central. The will was duly probated and the
CFI of Cebu confirmed the appointment of Fr. Mercado after the later filed
a 5000 bond.
Maria, Telesfora and Ceserea opposed the order appointing Fr. Mercado as
executor and prayed for the suspension of said order alleging that:
1. Mercado engaged the services of Atty. Alo and Veloso for the sole
purpose of repaying the obligations owed to said lawyers.
2. Mercado cannot be impartial as his parish, San Nicolas, was named
as one of the legatees in the will.
3. As the estate had no debts and since the heirs are all of age, there
is no need to incur unnecessary expenses as that of executor’s and
attorney’s fees.
4. Appellants are better able to protect the interests of the estate
5. Atty. Reviles, husband of Cesarea, is willing to render professional
services free of charge
The LC denied said opposition.
ISSUE/S:
Whether Fr. Mercado should be appointed executor.
HELD:
YES. When Msgr. Gorordo chose Mercado as executor of his
estate after his death, he must have had good and sufficient reasons and
as such, his will must be respected. Under Section 641 of Act no. 190,
once a will is probated, 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. While it may be true that
such should not be strictly interpreted, 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.
As to appellant’s allegations:
1. The reason chosen by Fr. Mercado in his engagement of said
lawyers is because of the competence and confidence he has on
said lawyers. Further, the estate is not yet prejudiced as it is yet to
be decided who is to pay to the lawyers (the estate or Fr.
Mercado?)
2. the parish of Fr. Mercado is not the legatee but the “…poor
of…San Nicolas”
3. Due to the numerous legacies and several claims being made on
the estate, it is absolutely necessary to appoint an executor.
4. Atty. 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.
Q
A

Q
A

Q
A

42 |

Has the court an unbridled power not to appoint a person
named in the will as executor?
NO. The court has the power not to appoint a person named in a will
as executor on the basis of unworthiness, incapacity, ineptitude and
unfitness. But in order to do this, the said grounds must be manifest
and real, not merely imaginary.
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,
since its power is limited to recognizing and approving or disapproving
an appointment by the testator.
When a will has been admitted to probate but was appealed,
may a special administrator be appointed in the meantime?
The choice of the executor is a precious prerogative of a testator, a
necessary concomitant of his right to dispose of his property in the
manner he wishes. The curtailment of this right may be considered a
curtailment of the right to dispose. And as the rights granted by will
take effect from the time of his death, the management of his estate
by the administrator of his choice should be made as soon as
practicable, when no reasonable objection to his assumption of the
trust can be interposed any longer. Hence, it has been held that when
a will has been admitted to probate, it is the duty of the court to issue
letters testamentary to the person named as executor upon his

Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

application. And where the probate court pending appeal against its
order admitting a will to probate and appointing as judicial
administrator, the person named therein as executor, appoints as
special administrator any person other than the executor named in
the will, it contains an abuse of discretion (Ozaeta, et al. vs. Pecson,
etc. and BPI)
The Rules of Court grants discretion to the probate court to
appoint or not to appoint a special administrator. Such power
of appointment is not even governed by the preference rule
governing
appointment
of
regular
administrators.
Nevertheless, this discretion should not be a whimsical one,
but one that is reasonable and logical and in accord with
fundamental legal principles and justice. The fact that a judge
is granted discretion does not authorize him to become partial,
or to make his personal likes and dislikes prevail over, or his
passions to rule his judgment. Hence, 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.
Sec. 5. Where some coexecutors disqualified others may act. When all of the executors named in a will can not act because of
incompetency, refusal to accept the trust, or failure to give bond, on
the part of one or more of them, letters testamentary may issue to
such of them as are competent, accept and give bond, and they may
perform the duties and discharge the trust required by the will.
Q
A
Q
A
Q
A

Q
A

What is the nature of the act of the executors in this
section?
The act of one executor is the act of all. There is an equality of
authority among them.
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.
May the court appoint more than one executor or
administrator?
YES. More than 1 executor may be issued letters testamentary in
accordance with the nomination in the will. Also, while as a rule, the
court appoints only one administrator in intestate estates, more than
one administrator may be appointed by the court.
When there is more than one executor or administrator,
what is the extent of each one’s authority?
The general practice is that co- executors or co- administrators will
exercise joint supervision over the entire estate. They have equal
authority among themselves since under the law, they are only one
person representing the testator, 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. An agreement between executors
or administrators that one alone shall manage the estate is VOID.

Sec. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are
incompetent, refuse the trust, or fail to give bond, or a person dies
intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of
kin, or both, in the discretion of the court, or to such person as
such surviving husband or wife, or next of kin, requests to have
appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of
kin, or the person selected by them, be incompetent or unwilling,
or if the husband or widow, or next of kin, neglects for thirty (30)
days after the death of the person to apply for administration or
to request that administration be granted to some other person, it
may be granted to one or more of the principal creditors, if
competent and willing to serve;

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
(c)

Q
A

Q
A

Q
A

Q

A

If there is no such creditor competent and willing to serve, it may
be granted to such other person as the court may select.

When are letters of administration granted?
Section 6, Rule 78 contemplates of two cases wherein letters of
administration shall be granted, namely when:
1. a person dies with a will
a. without appointing an executor
b. he appoints an executor but is incompetent
c.
he appoints an executor but the executor refuses; and
d. he appoints an executor but the executor fails to give
a bond
2. a person dies without a will
Does Section 6, Rule 78 require that the estate of a person,
who died leaving properties in the Philippines, must always be
judicially administered?
This legal provision enumerates the general rule that when a person
dies leaving property in the Philippines, his property should be
judicially administered. However, Rule 74 establishes 2 recognized
exceptions, to wit:
1. extrajudicial settlement by agreement between the heirs; and
2. summary settlement of estates of small value.
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. 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. Moreover, 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, if any,
to contest the said application.
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, 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. This is the
same consideration which Section 6, Rule 78 takes into account in
establishing the order of preference in the appointment of
administrators for the estate (Nicolasa de Guzman vs. 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. On the other hand, suffer the consequences of
waste, improvidence or mismanagement have the highest
interest ant most influential motive to administer the estate
correctly. (Gonzales vs. Aguinaldo)
DE GUZMAN vs. LIMCOLIOC, 68 PHIL 673 (1939)

FACTS:
Proceso de Guzman married Agatona Santos, with whom he had
four children: Nicolasa (appellee), Apolinario, Ana and Tomasa. During the
marriage the couple acquired properties. After the death of Agatona,
Proceso married herein appellant Angela Limcolioc with whom he had no
child. After the death of Proceso, Nicolasa was appointed by the court as
administrator of the properties. Angela opposed, contending that as the
widow, she must be preferred.
In the case of de Guzman v. 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. This is the same
consideration which the law takes into account in establishing the
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

preference of the widow to administer the estate of her husband, upon
the latter’s death, because she is supposed to have an interest therein as
a partner in the conjugal partnership. But this preference established by
law is not absolute, if there are other reasons justifying the appointment
of an administrator other than surviving spouse. 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, and if, under the
circumstances of each case, it develops that there is another who has
more interest therein than the surviving spouse, the preference
established in the latter’s favor becomes untenable.
ISSUE/S:
Whether the LC erred in appointing de Guzman as coadministrator
HELD:
NO. 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. SC believes that it is unjustified for the SC to meddle
in the exercise of such discretion, if not appearing that said court has
committed a grave abuse thereof. The reason cited above are applicable
to the case at bar. 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, 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. There is no ground to believe that he would squander said
properties and the products thereof.
Q
A

What is the order of preference in the appointment of an
administrator?
When the appointment of an administrator is proper, the letters of
administration shall be granted in the order of preference as follows:
1. to the surviving spouse
2. to the next of kin
3. in default of the surviving spouse or next of kin, then the person
selected by them;
4. in default of any person selected by the surviving spouses or
next of kin, then one or more of the principal creditors; and
5. in default of such creditors, then such other persons as the court
may select.

Q
A

What is the basis of the preference in this section?
The basis of the preference is the BENEFICIAL INTEREST IN THE
ESTATE.

Q

What is meant by the term “next of kin” as used in this
article?
“next of kin,” as used in this section means heirs under the law of
succession.

A
Q
A

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,
then the surviving spouse is preferred since the law, in considering
the preference, takes into account the interest of the surviving
spouse in the estate of the deceased as a partner in the conjugal
partnership. The fact of marriage alone introduces a change in the
conditions of guardianship over a minor woman; and although the
marriage of a girl who is under guardianship does not ipso facto
abolish the guardianship over the property, it does not terminate the
guardianship over the person. Moreover, 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. Therefore, if the husband is found to
be a suitable person, he is the proper individual to fill the office.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
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. But where the marriage is void, the surviving
spouse’s prior right is not recognized.
Is the preference of the surviving spouse a hard and fast rule?
NO. The preference established by law is not absolute if there are
reasons justifying the appointment of an administrator other than the
surviving spouse. If the interest in the estate is what principally
determines the preference in the appointment of an administrator, and
if, under the circumstances of each case, it develops that there is
another who has more interest therein than the surviving spouse, the
preference established in the latter’s favor fails to the ground. 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, the
children of the first marriage shall be preferred to the childless widow
of the second marriage in the selection of an administrator.
Furthermore, the order of preference established in Section 6, Rule 78
is founded on the assumption that the persons preferred are suitable.
If they are not, the court may entirely disregard the preference thus
provided. This is the reason for the rule that in the selection of an
administrator, courts may exercise discretion and, as stated elsewhere,
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. But of course, the order
of preference may be disregarded only when the reasons therefore are
positive and clear.

Q
A

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.e. compulsory succession and intestate
succession) they are entitled to the decedent’s property. Generally, the
nearest of kin whose interest is more preponderant, is preferred in the
choice of administrator. Among members of a class, the strongest
ground for preference is the amount of preponderance of interest. As
between next of kin, the nearest of kin is to be preferred.

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. One is not a
creditor within the rule unless the decedent was indebted to him
personally or unless, by operation of law, he becomes the legal owner
of a claim against the decedent. Corollary when the status of a creditor
ceases, the right to administer the estate likewise ceases. Moreover,
when those to whom the estate would go under the law offer to pay
the claim of a particular creditor and tender the same, all reasons for
giving the creditor a preference in the appointment as administrator
cease.

• As( a( creditor,( it( was( appellant’s( duty( to( present( its( claim( within( a(
reasonable( time( after( the( death( of( the( decedent( in( the( estate(
proceedings,( and( if( none( were( had,( to( file( a( petition( for( letters( of(
administration(as(authorized(by(Sec.(6(b),(Rule(78.((Rio!y!Compania!vs.!
Maslog)(
(
General&Rule:(the(court(cannot(set(aside(the(order(of(preference(under(
Sec.(6,(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,( the( letters( may( be( granted( to( such(
other(person(as(the(court(may(appoint.(
(
• The( Order( of( Appointment( of( Regular( Administrator( is( final! and!
appealable.(
44 |

Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

!
30Yday&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,( so( may( the( 30dday(
period( be( likewise( waived( under( the( permissive( tone( in( paragraph(
(b)( of( said( rule( which( merely( provides( that( said( letters( as( an(
alternative,( “may( be( granted( to( one( or( more( of( the( principal(
creditors.”(
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.

Q

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. 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. Harvey)

A

JOHANNES v. HARVEY, 43 PHIL. 175 (1922)
FACTS:
B.E. Johannes is the husband of Carmen Theodora Johannes,
deceased, who, at the time of her death, was a resident of Singapore,
Straits Settlements, and a citizen of Great Britain; that he is also a
foreigner and a citizen of Great Britain and an actual resident to
Singapore; that Alfred D'Almeida is a brother of the deceased Carmen
Theodora Johannes, and a bona fide resident of the City of Manila; that
at the time of her death Carmen Theodora Johannes had P109,722.55
on deposit in one of the banks in the City of Manila; and that B.E.
Johannes, was indebted to a bank in Manila for about P20,000. That the
deceased left no will in the absence of which the B.E. Johannes claims to
be her sole heir and entitled to all of her estate. That there were no
debts against the estate of the deceased. Upon the death of his wife, the
B.E. Johannes was duly appointed as administrator of her estate by the
court at Singapore, and qualified and entered upon the discharge of his
duties. After the decision was rendered by this court in case No. 18600,
the B.E. Johannes came to Manila and claims to have established a
temporary residence at the Manila Hotel, based upon which, in legal
effect, he asked for an order of court that Alfred D'Almeida be removed
as ancillary administrator, and that he be appointed.
The Singapore heirs opposed Alfred’s appointment. 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.
ISSUE/S:
Whether the appointment of an administrator over the estate
in the Philippines necessary? If yes, 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). A grant of
administration does not by its own force have any effect beyond the
limits of the country in which it is granted. It was proper for the court to
appoint an ancillary administrator over the properties of the deceased in
the Philippines.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
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, it is deemed advisable to name someone else. Section 642 of the
Code of Civil Procedure (now Section 6, Rule 138) leaves this to the
discretion of the court to determine, for it may be found that the surviving
spouse is unsuitable for the responsibility. Moreover, non- residence is a
factor to be considered in determining the propriety of the appointment
and in this connection, it is noted that the husband of the deceased (who
is) the administrator of the principal administration, resides in Singapore. 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.
If the husband should come into this jurisdiction, the court
would give consideration to his petition that he be named ancillary
administrator for local purposes. 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.

(

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, Rule 78, if the person to be
appointed as ancillary administrator is residing in the Philippines and is
not incompetent. Otherwise, ancillary letters may be granted to the
domiciliary representative, if he applies, therefore, or to his nominee or
attorney. There being no express statutory requirement on the matter,
the court may in its discretion appoint some other person.

Q
A

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, settle the accounts and remit the surplus to
the domiciliary jurisdiction, for distribution among the next of kin.

Q

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
where it was granted so that an administrator appointed in one state
or country has no power over property in another state or country.

A

RULE 79
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY.
PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION
Sec. 1. Opposition to issuance of letters testamentary;
Simultaneous petition for administration. - Any person interested
in a will may state in writing the grounds why letters testamentary
should not issue to the persons named therein executors, or any of
them, and the court, after hearing upon notice, shall pass upon the
sufficiency of such grounds. A petition may, at the same time, be filed
for letters of administration with the will annexed.
Q Who is an interested person?
A Any interested person is one who would be benefited by the estate,
such as an heir or one who has a claim against the estate such as a
creditor.
Q Who are the heirs deemed as interested persons?
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. 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. (Gutierrez del
Campo vs. Varela Calderon)

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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

In the matter of the estate of the deceased Francisco Varela
Calderon. ANTONIO GUTIERREZ DEL CAMPO vs. MIGUEL
VARELA CALDERON, ET AL.,
G.R. No. L-39796
March 9, 1934
HELD:
The deceased, Francisco Varela Calderon, was a bachelor and
a citizen of the Philippines. He died in Spain. At the time of his death, he
left no ascendants. However, he had brothers and sisters of the full
blood and illegitimate children. In his will, he left something to his
illegitimate children and nothing to his siblings. The executor named in
the will presented a project of partition in accordance with the probated
will, which the trial court approved. Hence, this appeal by the siblings,
contending that the illegitimate children not having the status of natural
children are entitled only to support.
ISSUE/S:
Whether the brothers and sisters could intervene.
HELD:
NO. 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, once he have disposed of them by will. Had any of them
been forced heirs, they would have been entitled to intervene and
protect their interest as far as they may have been prejudiced by the
will. But it is evident that they have not been injured or prejudiced in any
manner whatsoever. Only the forced heirs whose rights have been
prejudiced have the right to intervene in a case of this character.
Q What is the interest required to make a person a party?
A Unless otherwise provided by law, in order that a person may be a
party in civil actions and special proceedings, 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. (Trillana vs. Crisostomo)
TESTATE ESTATE OF THE DECEASED DAMASA CRISOSTOMO.
NAZARIO TRILLANA vs. CONSORCIA P. CRISOSTOMO, ET AL
G.R. No. L-3378
August 22, 1951
FACTS:
Concordia Crisostomo, one of the nephew and nieces of the
deceased, Damasa Crisostomo, questioned the decision of the probate
court allowing its execution of the will. They claimed that the judgment
was obtained through fraud since they were not given personal notice of
the hearing.
ISSUE/S:
Are the nephews and nieces entitled to notice?
HELD:
NO. They are not entitled to notice because they have no legal
interest in the case. In a civil action and special proceedings, unless
otherwise provided by law, the interest required in order that a person
may be a party, must be material and direct, so that he may be
benefited or injured in the same way by the court’s judgment. But in this
case, the interest is purely contingent or dependent upon several
uncertain and future events.
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 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,
although it should purport to be a sale, an exchange, a compromise,
or any other transaction. It is for the reason that these transactions
are in the nature of extrajudicial partition, court approval is
imperative, and the heirs cannot just divest the court of its jurisdiction
over the estate and over their persons, by the mere act of assignment
and desistance. However, if the partition had been judicially approved
on the basis of the alleged deed of assignment, an aggrieved heir

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
does not lose her standing in the probate court. (Gutierrez vs. Villegas)
In other words, if the settlement of the estate is already pending
before the probate court, mere assignment of one’s rights, 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. This is so because at the time of said
assignment, the settlement court had already acquired jurisdiction over
the properties of the estate. As a result, any assignment regarding the
same has to be approved by the court. Since the approval of the court
is not deemed final until the settlement of the estate is closed, the
assigning heir remains an interested person in the proceeding even
after said approval, which can be vacated.
IN THE MATTER OF THE INTESTATE ESTATE OF THE DECEASED
IRENE SANTOS. JOSE D. VILLEGAS, Administrator, ADELA SANTOS
GUTIERREZ vs. JOSE D. VILLEGAS, and RIZALINA SANTOS
RIVERA, G.R. No. L-11848
May 31, 1962
FACTS:
Irene Santos died intestate, leaving as her only heirs her surviving
spouse Jose D. Villegas and two nieces — daughters of a deceased
brother, Rizalina Santos Rivera and Adela Santos Gutierrez. Thereafter,
Jose Villegas filed with the CFI of Rizal, a petition for Letters of
Administration, and was appointed administrator of the estate. An
unverified manifestation signed by Adela Gutierrez, accompanied by a
public instrument entitled "Kasulatan ng Bilihan at Salinan" was presented
to the Probate Court whereby Adela Gutierrez assigns her rights,
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,
motions, orders filed in court.
Adela later averred that the deed of assignment of her rights,
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. Villegas and Rizalina filed exceptions and/or
objections to the Manifestation, denying the allegations of fraud, undue
influence and the like. Nevertheless, the lower court issued an order
declaring that although at the onset, Adela had the right to intervene as
one of the legal heirs, yet when she filed her deed of assignment, she had
ceased to have any interest in the estate and until which such is annulled,
her interest would merely be a contingent one.
ISSUE/S:
Whether Adela is an interested party
HELD:
Adela Santos Gutierrez is an indispensable party to the proceedings in
question. Her interest in the estate is not inchoate, it was established at
the time of death of Irene Santos. While it is true that she executed a deed
of assignment, it is also a fact that she asked the same to be annulled.
Although Adela had filed a manifestation dropping herself from the
proceedings and presenting therewith the supposed Deed of Assignment,
the record, nevertheless fails to show that action thereon had been taken
by the probate Court. Every act intended to put an end to indivision
among co-heirs and legatees or devisees is deemed to be a
partition, although it should purport to be a sale, an exchange, a
compromise, or any other transaction.
Q What is the effect of such assignment?
A If the assignment took place when no settlement proceeding was
pending, the properties subject matter of the assignment were not
under the jurisdiction of a settlement court. Hence, there is no necessity
of any court approval. Consequently, the assigning heir is deemed to be
left without any interest in the estate and cannot subsequently petition
for its settlement. (Duran vs. Duran)
! If the assignment is being assailed by the heir on the ground of fraud,
lesion, etc, then the proper remedy is to rescind or annul the same in
an action for that purpose. Pending the outcome of the action, his
interest is merely contingent.

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DURAN vs. DURAN, 20 SCRA 379
FACTS:
Pio Duran died on February 28, 1961 without a will, leaving his
wife, Josefina, and several siblings and nephews and nieces. Cipriano
Duran, 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 2,500.
Later on, Cipriano filed an intestate proceeding with the CFI of
Albay and sought to have himself appointed administrator. 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. 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. Miguel, another brother, joined Cipriano as copetitioner.
The CFI dismissed the petition. Hence this appeal with appellants
contending that via the case of In re Irene Santos, Cipriano is still an
interested person as said case held that an assignment made by one heir
to a co- heir amounts to a partition which needs the approval of the
settlement court.
ISSUE/S:
Whether Cipriano is an interested person?
HELD:
NO. The situation contemplated in the Santos case is an assignment
pendent elite. Therefore, the court in the said case has acquired
jurisdiction over the properties and such assignment should be approved
by the settlement court.
While in the case at bar, no settlement proceedings are pending.
The properties, which are the subject matter of the partition, are not
within the jurisdiction of the court. Hence, the assignment does not need
court approval to be effective between the parties. Should the
assignment be alleged to be tainted with fraud, lesion or inadequacy of
price, the proper remedy is to rescind or annul the same in an action for
that purpose. Therefore, until the assignment is properly rescinded or
annulled, it is 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.
The petition of Miguel, who sought to join Cipriano, is deemed to be
a petition to intervene in a settlement proceeding and as there is no
settlement proceeding to speak of, the same must be denied. Even if
Josefina prayed to be appointed as administratrix, such did not amount
to a ratification of the petition for settlement as she did so only as an
alternative prayer, should her motion to dismiss fails.
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.

• In(order(to(be(a(party,(a(person(must(have(material(and(direct,(and(
not(one(that(is(only(indirect(and(contingent,(interest.(
• The(opposition(may(be(accompanied(by(a(Petition(for(the(issuance(of(
Letters(of(Administration(with(the(will(annexed.(
(
Q Who is an interested person?
A An interested person is one who would be benefited by the estate,
such as an heir or one who has a claim against the estate, such as a
creditor.
Q Is it necessary for the person filing an opposition that he
himself be eligible or appointed?
A NO. 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, the fact that he himself is not
eligible for appointment does not deprive him of the right to object to
the appointment of another.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q X died and was survived by his two sons, Y and Z. in his will, X
named Y as executor. Can Z, a minor, oppose the appointment
of Y on the ground that the latter is a drunkard?
A YES. Z can oppose. His mere disqualification as a minor does not stop
him from filing an opposition if he believes reasonable grounds thereof
exist.

residences of the creditors, of the decedent
3) The probable value and character of the property of the estate;
4) The name of the person for whom letters of administration are
prayed.
But no defect on the petition shall render void the issuance of
letters of administration.

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, should the will be eventually probated. This includes the
right to intervene in the manner of appointment of an administrator
whether special or regular.

Q What are the contents of a petition for letters of
administration?
A A petition for letters of administration must show, so far as known to
the petitioner:
1. The jurisdictional facts;
2. The names, ages, and residences of the heirs, and the names
and residences of the creditors, of the decedent
3. The probable value and character of the property of the
estate;
4. The name of the person for whom letters of administration are
prayed.
! Note that the above provides for the same requirements when filing a
petition for probate or allowance of a will.

Q In what form must an opposition be?
A The opposition must be in writing, signed by the applicant and stating
the facts essential to give the court jurisdiction over the case. It must
state the grounds why letters testamentary should not issue to the
persons named therein as executors or any of them.
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 Suppose X died and was survived by three, A, B and C. A was
named administrator of X’s estate. Thus, B filed an opposition
thereto. Does the opposition of B bind C, or does C have to file
a separate opposition?
A B’s opposition is binding upon C. Therefore, the latter does not have to
file another opposition. An objection raised by one party invites to the
benefit of all parties interested in the subject, 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. cause notice to be given to the executor, heirs/legatees
2. set date for hearing; and
3. 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, the issuance
of letter should be suspended until the determination of the objection or
its withdrawal.
Q Explain the last sentence of Section 1.
A When a petition for probate of the will has been filed, Section 1
authorizes a person interested in the estate to
1. challenge the qualifications of the person nominated therein as
executor but, at the same time and in anticipation of such
disqualification,
2. file a petition for administration with the will annexed.
The court will thus have two petitions pending before it, but in the event
the court approves the nomination of the executor, with the issuance of
letters testamentary to him, the petition for administration with the will
annexed must necessarily be denied.
Sec. 2. Contents of petition for letters of administration. - A
petition for letters of administration must be filed by an interested
person and must show, so far as known to the petitioner:
1) The jurisdictional facts;
2) The names, ages, and residences of the heirs, and the names and
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Q In a petition for letters of administration, what are the
jurisdictional facts which must be alleged?
A In a petition for letters of administration (or petition for settlement of
intestate), the following jurisdictional facts must be alleged:
1. if the decedent is a resident of the Philippines, his last place of
residence which must be within the territorial jurisdiction of
the court before whom the petition is brought;
2. if the decedent is a non- resident, the place where he has an
estate which must be within the territorial jurisdiction of the
court before whom the petition is brought;
3. the names, ages and residences of possible heirs and
creditors;
4. the probable value of the estate; and
5. the name of the person for whom letters is prayed for. (De
Guzman vs. Angeles)
Q How do you establish jurisdictional facts in court during the
petition for letters of administration?
A The following must be presented, established and marked as exhibits
in court:
1. order of notice;
2. affidavit of publication;
3. actual copies of newspapers where notice was published;
4. registry return card/ sheriff’s return;
5. death of decedent as evidenced by his death certificate
Sec. 3. Court to set time for hearing. Notice thereof. - When a
petition for letters of administration is filed in the court having
jurisdiction, such court shall fix a time and place for hearing the petition,
and shall cause notice thereof to be given to the known heirs and
creditors of the decedent, and to any other persons believed to have an
interest in the estate, in the manner provided in Sections 3 and 4 of Rule
76.

• Publication( for( 3( weeks( and( notice( to( heirs,( creditors( and( other(
persons(believed(to(have(an(interest(in(the(estate(is(required(before(
hearing(
• Sec.(3(is(Jurisdictional(
(
Q What must the court do when a petition for letters of
administration is filed?
A The court must:
1. fix the time and place for hearing the petition
2. 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.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
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. It is merely an interlocutory
order. It simply gives the parties an opportunity to be heard and the
court an occasion for action.
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. Hence, there must be notice of the time and
place of the hearing published 3 weeks successively previous to the
time appointed, in a newspaper of general circulation in the province
where the court has jurisdiction. 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, either by
registered mail or by personal service.
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. 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. 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. Verily, notice through publication is jurisdictional.
The absence of which makes court orders affecting other persons,
subsequent to the petition void and subject to annulment. (De Guzman
vs. 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.
FACTS: To acquire jurisdiction, the FACTS: To acquire jurisdiction,
filing of the petition before the notices
by
publication
are
court is necessary.
essential.
PEDRO DE GUZMAN vs. RTC Judge ZOSIMO Z. ANGELES; DEPUTY
SHERIFFS JOSE B. FLORA and HONORIO SANTOS and ELAINE G.
DE GUZMAN
G.R. No. 78590 June 20, 1988
FACTS:
Elaine G. de Guzman filed a petition for the settlement of the
intestate estate of Manolito de Guzman, before the RTC of Makati. The
petition alleges that: (1) Manolito de Guzman died in Makati; (2) at the
time of his death, the decedent was a resident of Makati; (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; (5) the estate of -the decedent
has a probable net value which may be provisionally assessed at
P4,000,000.00 more or less; (6) the possible creditors of the estate, who
have accounts payable and existing claims against the firm — C. 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, 9 years old; (8) after
diligent search and inquiry to ascertain whether the decedent left a last will
and testament, none has been found and according to the best knowledge
information and belief of the petitioner; and (9) the petitioner as the
survey surviving spouse of the decedent, is most qualified and entitled to
the grant of letters of administration.
Elaine filed a motion for writ of possession over 5 vehicles registered
under the name of Manolito de Guzman, 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- law, Pedro de Guzman. The motion stated
that as co-owner and heir, the private respondent must have the
possession of said vehicles in order to preserve the assets of her late
husband. On the same day, the lower court issued an order setting for
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hearing the motion and directing the deputy sheriff to notify petitioner
Pedro de Guzman at the expense of the private respondent. However,
the hearing was postponed on motion of petitioner's counsel.
In the meantime, Elaine filed her "Ex-Parte Motion to Appoint
Petitioner as Special Administratrix of the Estate of Manolito de
Guzman." RTC Judge directed that all parties in the case be notified.
However, no notice of the order was given to De Guzman. Nevertheless,
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.
Trouble ensued when the respondents tried to enforce the above
order. The petitioner resisted when Deputy Sheriffs Jose B. Flora and
Honorio Santos tried to take the subject vehicles on the ground that they
were his personal properties. De Guzman contends that the order is a
patent nullity, 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, as mandated by the Rules of
Court. 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.
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.
HELD:
NO. Notice through publication of the petition for the settlement of
the estate of a deceased person is jurisdictional, the absence of which
makes court orders affecting other persons, subsequent to the petition
void and subject to annulment. In the instant case, no notice as
mandated by section 3, 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, to
issue a writ of possession of alleged properties of the deceased person in
the widow's favor, and to grant her motion for assistance to preserve the
estate of Manolito de Guzman.
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, no such emergency is shown in
this case. The need for the proper notice even for the appointment of a
special administrator is apparent from the circumstances of this case.

• 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,(the(proceeding(for(the(settlement(of(the(estate(is( void(and(
should(be(annulled.((Eusebio!vs.!Valmores)(
•(
Sec. 4. Opposition to petition for administration. - Any interested
person may, by filing a written opposition, contest the petition on the
ground of the incompetency of the person for whom letters are prayed
therein, or on the ground of the contestant's own right to the
administration, and may pray that letters issue to himself, or to any
competent person or persons named in the opposition.
Q What are the grounds for opposing a petition for
administration?
A The following are the grounds for opposing a petition for
administration:
1. incompetence of the person to whom letters are prayed; or
2. contestant’s right to administration;
3. the express requirement of the statute has not been complied
with.
Sec. 5. Hearing and order for letters to issue. - At the hearing of
the petition, it must first be shown that notice has been given as
hereinabove required, and thereafter the court shall hear the proofs of

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
the parties in support of their respective allegations, and if satisfied that
the decedent left no will, or that there is no competent and willing
executor, it shall order the issuance of letters of administration to the
party best entitled thereto.

RULE 80
SPECIAL ADMINISTRATOR

(
Letters(of(Administration(will(issue(if(it(is(proven(that:(
(a)(Notice(as(required(in(Sec.!3(was(given;(and(
(b)( The( decedent( left( no( will;( or( there( is( no( competent( and( willing(
executor(
(

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 Is the order for the issuance of letters of administration
appealable?
A The order for the issuance of letters of administration is APPEALABLE.
! Procedure is the same when filing a petition for probate

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 What must the oppositor establish?
A The oppositor who seeks to be appointed as administrator must
establish:
1. the incompetence of the executor named; and
2. 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, it shall order the issuance of letters of administration
to the party entitled thereto.
Sec. 6. When letters of administration granted to any applicant.
- Letters of administration may be granted to any qualified applicant,
though it appears that there are other competent persons having better
right to the administration, if such persons fail to appear when notified
and claim the issuance of letters to themselves.
Q To whom may letters of administration be granted?
A Under Section 6 of this Rule, letters of administration may be granted to
any qualified applicant
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.

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Q When may a special administrator be appointed?
A There are two instances when a special administrator may be
appointed:
1. when there is delay in the appointment of the regular
administrator (Section 1, Rule 80; Fule vs. CA)
2. 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)

(
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 one-half 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

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
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
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?
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.
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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 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.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
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
granting letters
administration
executor is a
estate

there is delay in
testamentary or
or
when
the
claimant of the

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:
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.

• 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?
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

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
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.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
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.

(
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 with
the Rules of Court and in case of an executor, in accordance
with the will of the testator
2. to pay and discharge all debts, legacies and charges on the
estate, or such dividends thereon as shall be declared by the
court from the proceeds of the administration;
3. to render a true and just account of his administration within 1
year and at any other time when required by the court; and
4. to perform all orders of the court

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.( As(
long( as( the( probate( court( retains( jurisdiction( of( the( estate,( the( bond(
contemplates(a(continuing(liability.((luzon!surety!vs.!Quebrar).!(
(
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. all the properties of the deceased which have come to his
possession
2. 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, he is however accountable for a true and
complete inventory of all the properties which has come to his knowledge.
(Tan vs. Go Chiong Lee)

MAXIMINA TAN, administratrix of the property of the deceased
Go Bung Kiu vs. GO CHIONG LEE, TIO LIOK, AND CHANGCO and
MANUEL GO TIANUY,
G.R. No. 21969
September 25, 1924
FACTS:
During the lifetime of the deceased Go Bung Kiu, Go Chiong Lee
was his encargado. Go Bung Kiu died in China. 9 days after, Go Chiong
Lee was appointed special administrator of the estate, with Tio Liok, Ang
Changco, and Manuel Go Tianuy as sureties on his bond in the sum of
P30,000. Go Chiong Lee's status with reference to the estate was later
changed to that of administrator. On the same date, Go Chiong Lee filed
a motion in which he prayed that he be allowed to operate 2 stores
belonging to the estate, one in the City of Cebu and the other in the
municipality of Toledo, Cebu. The court granted the administrator the
authority to which he asked on the condition that he makes monthly
reports to the court. Another bond also in the amount of P30,000 and
with the same sureties was filed by the administrator, and letters of
administration were issued in his favor. Go Chiong Lee continued to
discharge his duties administrator until he was relieved by Maximina Tan.
During this period, the administrator filed one report covering the period
from May 26, 1920, to September 30, 1920, another report covering the
period from October 1, 1920, to July 31, 1921, and still a third and final
report.
After Chiong Lee was relieved, an accounting was done on the
estate by the private accountant and based on these investigation, it was
found that the estate suffered a loss of over
19,000 under the
administration of Chiong Lee. Tan now filed an action to recover from
Chiong Lee, based on the four cause of action. 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.
The lower court found for Tan in the 2 causes of action. One of the
grounds upon which the said court ruled in favor of Tan with respect to
the first cause of action, is the failure of Lee to render the monthly
reports made a condition of his appointment as administrator.
ISSUE/S:
Whether Chiong Lee could be held liable for the losses suffered by
the estate
HELD:
NO. The standard of responsibility of the administrator is best
measured as in essence the responsibility of a 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. 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, has not been
proved.” That the losses sustained by the estate resulted from the risk
necessarily attending the operation of the two stores, is a much more
reasonable assumption.
YES. 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, it is now established that for the purpose of
determining whether a given property should be included in the
inventory, the probate court may pass upon title thereto, though such
determination is not conclusive and is subject to the final decision in a
separate action between the parties.
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, legatees and devisees.
Liquidation means determination of all the assets of the estate and

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Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
payment of all the debts and expenses. An efficient administration
should, therefore, consist not only in taking charge of the assets in a
manner which is safe and productive, 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. The policy of these rules is to close up the estate as
promptly and as economically as possible.
Q In the determination of the estate, 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?
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. UNLESS specially authorized by will.
the statute grants no power to an administrator to borrow money upon
a mortgage of the real estate of the decedent, is not controverted.
Indeed, such an act is foreign to the policy and purpose of
administration, which aims to close up, not to continue an estate.
(Sociedad de Lizzaraga Hermanos vs. Abada)
SOCIEDAD DE LIZARRAGA HERMANOS vs. FELICISIMA ABADA, ET
AL.
G.R. No. 13910
September 17, 1919
FACTS:
Francisco Caponong died, owing the plaintiffs a sum of money which
was then less than the amount allowed by the commissioners. His widow,
Felicisima Abada, was appointed administratrix of the estate,
commissioners to appraise the estate and to pass on the claims against the
estate were duly appointed, and plaintiffs presented their claim which was
allowed by the commissioners in the sum of P12,783.74.
The administratrix leased the hacienda known as "Coronacion" to
Hilario Zayco for a term of years, but afterwards she married Vicente
Alvarez, one of the defendants, and the lease was transferred to Alvarez
by Zayco.
Nearly 7 years after the death of Caponong, 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, alleging that
Francisco Caponong owed plaintiffs P12,783.74, and that Felicisima Abada
in her own name and as administratrix, had been receiving from the
plaintiffs money and effects from 1908 to 1912 which money and effects
were used by the defendant in "the expense of cultivation and the
exploitation of the Hacienda 'Coronacion,' "and that defendant had
delivered to plaintiffs the sugar produced until the last crop which she
refused to deliver to them. And that due to drought and poor crops of the
farm and after deducting for the sugar delivered, the account of the
defendant showed a balance in favor of plaintiffs of P62,437.15; that of
this amount they were informed the defendant recognized as due from the
estate only "about P14,000" which however had not been paid; 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. They also asked for
judgment for P62,437.15 with interest at 12% and P1,500 for attorney's
fee.
Defendant admits she owed P8,555.78 as administratrix, and alleges
that the balance was due by her personally. While the guardian of the
minor children of Francisco Caponong denied the claim under oath, and
alleged that the estate of Francisco Caponong did not owe plaintiffs
anything.
Nevertheless, the parties, including the guardian of the minors,
presented a motion in court stating that they had made an amicable
settlement of the litigation, and prayed the court to dismiss the action,
which was done. It was agreed upon by the parties that "Francisco
Caponong's estate was indebted to the plaintiffs, in the sum of P68,611.01,
which was to be paid with 10% interest in 7 equal annual installments;"
and to secure this debt, the defendants agreed to give plaintiffs a first
mortgage on all the property of Francisco Caponong, except the growing
sugar cane, and on all the property belonging exclusively to Felicisima
Abada, and the defendants agreed to secure judicial approval of the
settlement. The defendants also agreed to mortgage the carabaos then on
the hacienda to plaintiffs. The compromise was approved by the court as
well as the mortgage. However, the mortgage given was not recorded in
the registry of property up to time of the institution of this suit.
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Coming now to the present action, 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. They also alleged that defendants
were about to transfer their property not mortgaged. Thus, they prayed
for an attachment on property of defendants not to exceed P20,000 in
value, and for judgment for P90, 383.49 with interest, and that if this
amount should not be paid that the mortgaged property be sold, and if
not sufficient to pay the debts, that the property levied on under the
attachment be sold.
The court granted the attachment order and the provincial sheriff
attached one parcel of land, the growing crops, certain products of the
soil, and various animals. Plaintiffs later filed a motion in court alleging
that the property mortgaged to secure their debt was not sufficient to
secure the debt; that defendants, with the intention of prejudicing the
interest of the plaintiffs, were negligent in the conservation and care of
the property, and they asked the court to appoint a receiver for the
property that was mortgaged. The court granted this motion, as to all
the property attached, and extended the receivership to all the
mortgaged property.
The defendants, Felicisima Abada, administratrix, and Januario
Granada, the guardian, filed an amended answer in which they allege,
among others, that the compromise agreement and the mortgage
executed in conformity therewith made a part of the complaint, 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, through the administratrix.
Based on these, the CFI largely sustained the defendant’s claim and
ruled that the plaintiffs pay them certain damages. The attachment was
dissolved and the receiver discharged and was ordered to return the
property to the defendants. Judgment was given to the plaintiffs to
recover from the defendant- administratrix the sum of 8,555.78 with
interest. A personal judgment was also given to plaintiffs against
defendants for
79,970.21. Both parties appealed, the defendants
claiming for more damages and the plaintiffs alleging errors of the trial
court.
ISSUE/S:
Whether the administratrix had the power to borrow money upon a
mortgage of the real estate of the deceased?
HELD:
NO. 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. The sum
extended by an administrator for the extensive administration of the
estates of the decedent cannot be considered “expenses of
administration.”
That the statute grants no power to an administrator to borrow
money upon a mortgage of the real estate of the decedent, is not
controverted. Indeed, such an act is foreign to the policy and purpose of
administration, which aims to close up, not to continue an estate
Although the mortgage was made by the administrator approved by
the CFI, still this approval cannot render valid the void acts of an
administrator.
Q How should the administration of estates be settled?
A In this connection, Section 15, 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.
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, and they may refuse to
allow any compensation to executors and administrators who do not
actively labor to that end, and they may even adopt harsher
measures. (Sociedad de Lizzaraga Hermanos vs. 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, Rule 85.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
There can be no legal excuse for delaying the closure of administration
to more than 2 years and a half, as provided in Section 16, Rule 88.
Q In the administration of the estate, 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. 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 normal duty of the personal
representative in reference to such business is limited to winding it up,
and even where the beneficiaries are infants the court cannot authorize
the administrator to carry on the trade of the decedent. So great a
breach of trust is it for the representative to engage in business with
the funds of the estate that the law charges him with all the losses
thereby incurred without on the other hand allowing him to receive the
benefit of any profits that he may make, the rule being that the persons
beneficially interested in the estate may either hold the representative
liable for the amount so used with interest, or at their election take all
the profits which the representative has made by such unauthorized use
of the funds of the estate. (Wilson vs. Rear)
In the matter of the Estate of Charles C. Rear, deceased. J.J.
WILSON, administrator- appellee vs. M. T. REAR, ET AL.,
G.R. No. L-31860
October 16, 1930
FACTS:
Charles C. Rear was murdered by some Moros on his plantation
in an isolated place in Cotabato. J.J. Wilson qualified as special
administrator of the estate. Later, the property of the estate was appraised
at P20,800, of which the commissioners filed an inventory and report,
which was also signed by Wilson. The commisioners made and filed a
report of claims against the estate, 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. With
the consent of the heirs, a petition was made for authority to sell, under
sealed proposal, all the property of the estate, with a view of closing the
administration. The court granted this petition, and after due notice, the
public sale took place, and the property was sold to Wm. Mannion for
P7,600. Wilson submitted a report covering his administration to that date,
which was approved and later set aside on motion of the heirs of the
deceased. Wilson filed his final account which later was amended, to which
the heirs made numerous and specific objections, and after a hearing, the
court approved the account as filed. The heirs claimed that (1) the special
administrator disbursements far in excess of the amount required to
preserve the estate; (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; (3) the court erred in admitting Exhibits D,
E and F; and (4) Wilson was neglectful, imprudent and wasteful.
ISSUE/S:
Whether Wilson properly performed his duties as special
administrator
HELD: NO.
1) From 1925-1927, Wilson never made any report, filed any account for
or obtain a court order of any nature. The attention of the court was
called for the first time when the commissioners filed a claim for their
fees.
2) From the final account, it appeared that at the time of Rear’s death,
the total amount of claims against the estate was only 3,422.58 1,655.54 for claims, interests and taxes and 1,767.04 for the costs
of administration. Had Wilson applied to the court for an order to sell
the personal property of the estate, there would have been a balance
of
2,377.42. however, 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.
The net result of this was that all of the property of the estate was
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3)

4)

5)

6)

consumed, lost or destroyed, leaving a deficit against the estate of
1,809.69.
Since Wilson was appointed and qualified as administrator, the law
imposed upon him legal duties and obligations, among which was to
handle the estate in a business- like manner, marshal its assets and
close the estate, without any reasonable or unnecessary delay.
Without a specific showing or an order of the court, an administrator
does not have any legal right to continue the operation of the
business in which the deceased was engaged, or to eat up and
absorb the assets of the estate in the payment of operating
expenses.
Even though the law does not impose upon the administrator a high
degree of care in the administration of the estate, it does not impose
upon him the ordinary and usual care, for want of which he is
personally liable. 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.
An exception would be when, in order to settle an estate the
personal representative may, in some cases , be permitted to
continue a business for a reasonable time. Even in such cases the
personal representatives are not, however, entitled to embark in the
business more of the testator's property than was employed in it at
his death.
Considering the fact that Wilson's home and place of business was
300 kilometers from the plantation (it was in Zamboanga), and that
in the very nature of things, he could not give the business of the
estate his personal attention, we are disposed to be more or less
lenient, and to allow him the actual operating expenses of the
plantation for the first eight months of his appointment amounting to
P2,257.45. Although the expense account of the administrator and
the claims of the commissioners are somewhat high, we are also
disposed to allow those claims. However, the total amount of
5,680.03 was to be deducted for the 1,919.25 received from the
sale of personal property and the 7,600 received from Wilson was
to pay the heirs the balance of 3,839.22.

Q What is the degree of care required in the administration of
decedent’s estate?
A The standard of responsibility of the administrator is best measured
as that of a 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.
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 administrator, in good faith, spent and which he is unable to
repay. (Montemayor vs. Heirs of Gutierrez, L-16959, January 30,
1962)
Q In the proceeding against the bond, 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.
Sec. 2. Bond of executor where directed in will. When further
bond required. - If the testator in his will directs that the executor
serve without bond, or with only his individual bond, he may be allowed
by the court to give bond in such sum and with such surety as the court
approves conditioned only to pay the debts of the testator; but the court
may require of the executor a further bond in case a change in his
circumstances, or for other sufficient cause, with the conditions named in
the last preceding section.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
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, the court may still require him to file a bond conditioned
only to pay the debts of the testator, and thereafter, based on the
circumstances, the court may require further bond from said executor
to answer for breaches in his administration.
Sec. 3. Bonds of joint executors and administrators. - When two
or more persons are appointed executors or administrators the court
may take a separate bond from each, or a joint bond from all.
Sec. 4. Bond of special administrator. - A special administrator
before entering upon the duties of his trust shall give a bond, in such
sum as the court directs, conditioned that he will make and return a true
inventory of the goods, chattels, rights, credits, and estate of the
deceased which come to his possession or knowledge, and that he will
truly account for such as are received by him when required by the
court, and will deliver the same to the person appointed executor or
administrator, or to such other person as may be authorized to receive
them.
Q What are the conditions of a special administrator’s bond?
A The following are the conditions of a special administrator’s bond:
1. he will make and return a true inventory of the estate of the
deceased which comes to his possession or knowledge;
2. he will truly account for such as are received by him when
required by the court;
3. he will deliver the same to the persons appointed executor or
administrator or to such other person as may be authorized to
receive them.

(
Note:(The(bond(is(effective(as(long(as(the(court(has(jurisdiction(over(the(
proceedings.(
•(
RULE 82
REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION,
AND REMOVAL OF EXECUTORS AND ADMINISTRATORS
Sec. 1. Administration revoked if will discovered; Proceedings
thereupon. - If after letters of administration have been granted on the
estate of a decedent as if he had died intestate, his will is proved and
allowed by the court, the letters of administration shall be revoked and
all powers thereunder cease, and the administrator shall forthwith
surrender the letters to the court, and render his account within such
time as the court directs. Proceedings for the issuance of letters
testamentary or of administration under the will shall be as hereinbefore
provided.
Q When may letters of administration issued by a court be
revoked?
A The following are the circumstances when letters of administration
issued by a court can be revoked:
1. when a newly discovered will has been admitted to probate after
the issuance of letters of administration, such letters of
administration may be revoked; and
2. when letters of administration have been issued illegally or
without jurisdiction, such letters of administration may be
revoked by the probate court

• 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.(
•(
Q What are the effects of such revocation are as provided for by
Section 1, Rule 82?
A The effects of such revocation are as provided for by Section 1, Rule 82
are the following:
1. all powers of administration shall cease;
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

2. the administrator shall forthwith surrender his letters to the
court;
3. the administrator shall render his account within such time as
the court directs; and
4. proceedings for the issuance of letters testamentary or of
administration under the will shall be had

(
Duty&of&Administrator&upon&Revocation&of&the&Letters&
(1)(Surrender(the(letters(to(the(court;(or(
(2)(Render(his(account(within(such(time(as(the(court(may(direct.(
(

Q Does the mere discovery of a document purporting to be a
will ipso facto authorize the revocation of letter of
administration?
A NO. 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, does not, in
view of Section 1, Rule 82 ipso facto nullify the letters already issued
or even authorize their revocation until the will has been proved and
allowed.
Sec. 2. Court may remove or accept resignation of executor or
administrator; Proceedings upon death, resignation, or removal.
- If an executor or administrator neglects to render his account and
settle the estate according to law, or to perform an order or judgment of
the court, or a duty expressly provided by these rules, or absconds, or
becomes insane, or otherwise incapable or unsuitable to discharge the
trust, the court may remove him, or, in its discretion, may permit him to
resign. When an executor or administrator dies, resigns, or is removed
the remaining executor or administrator may administer the trust alone,
unless the court grants letters to someone to act with him. If there is no
remaining executor or administrator, administration may be granted to
any suitable person.
Q How would you distinguish revocation from removal?
A revocation vs. 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.
grounds existing before or at the
time of the issuance
Revocation arises when a will is In removing an administrator, the
proved and allowed by the court
law provides 6 grounds as
provided for in Section 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. neglects to render his account;
2. neglects to settle the estate according to these rules;
3. neglects to perform an order or judgment of the court;
4. neglects to perform a duty expressly provided by these rules;
5. absconds
6. becomes insane or otherwise incapable or unsuitable to
discharge the trust

(
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.(
(
(

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Degree&of&Diligence&Required(
• An( administrator( is( required( to( exercise(reasonable& diligence( and( act(
in(entire(good(faith(in(the(performance(of(that(trust.(
(
Q How soon must the executor or administrator render his
account?
A Under Section 8, Rule 85, “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, unless the court
otherwise directs…” In connection with this, in one case, an
administrator filed his 1st account 2 years after his appointment as such,
and his 2nd account after the next years. The 2nd account was
disapproved and he was ordered to file an amended account within 30
days. Despite an extension of 10 days after the lapse of the 30- day
period, he still failed to file the required amended account, and he filed
the old account without change. This and some irregularities found in
his accounting were held to be sufficient grounds for his removal since
the 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. (Gustillo vs. Sian)
Q Are the grounds for removal or compelling resignation under
Section 2, Rule 82 exclusive?
A NO. The grounds enumerated by this legal provision are not exclusive.
Thus, where the appointment of an administrator was procured through
false representations, the power of the court to revoke the appointment
on that ground is beyond question. This is so because the position of
administrator is one of confidence. Once the court finds the appointee
to the position not entitled to such confidence, it is justified in
withdrawing the appointment and in giving no valid efficacy thereto.
(Cobarrubias vs. Dizon) The removal of an administrator lies within the
sound discretion of the court appointing him. The sufficiency of any
ground for removal should thus be determined by said court, whose
sensibilities are, in the first place, affected by any act or omission on
the part of the administrator not conformable to or in disregard of the
rules or orders of the 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. subsequently, 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. During the reception of the evidence conducted by
the probate court, C submitted certain exhibits in support of his motion
to oust M on January 8, 1966. M filed a motion objecting to the
admission in evidence of the exhibits presented by C on the ground that
the same were heresay, self- serving, irrelevant and/or mere
photostatic copies of supposed originals which were not identified nor
produced in court. On January 30, 1966, the court issued an order
removing M as administrator. 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, thus denying him of his cardinal
right to due process. 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. such act constitutes grave abuse of discretion which dooms
the order as a nullity. In fact, even without the reservation of M, it was
the bounded duty of the probate judge to schedule the presentation
and reception of evidence before disposing of the case on the merits
because only the movant C at that time had presented evidence.
Q Is adverse interest a ground for removal?
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. (Degala vs. 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.
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

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.
! 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, the latter is not
necessarily disqualified. Any adverse interest which said attorney may
have is exclusively personal to him.
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, and as
such, utmost good faith is required.
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.
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. The sufficiency of any ground for
removal should be determined by said court, whose sensibilities are,
in the first place, affected by any act or omission on the part of the
administrator not conformable to or in disregard of the rules or the
order of the court. Consequently, 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. (Degala vs. 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,( it( is( justified( in( withdrawing( the( appointment( and( giving(
no(valid(efficacy(thereto.((Cobarrubias!vs.!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. (Gonzales vs. Aguinaldo)
SANTIAGO DEGALA vs. CFI Judge PATRICIO C. CENIZA and
VALENTIN UMIPIG, as special administrator of the estate of
Placida Mina
G.R. No. L-1320
July 30, 1947
FACTS:
Valentin Umipig was appointed special administrator of the estate of
the deceased Placida. In original action for certiorari, the petitioner
Santiago Degala complains of, and seeks relief from, the failure or
refusal of Judge Patricio C. Ceniza, to remove said special administrator.
Degala was claiming that Valentin Umipig
1) has an interest adverse to the estate under administration.
2) is a stranger to the estate, not being in any way a beneficiary under
the alleged will of Placida Mina.
3) has failed to include in his inventory some properties belonging to
the estate.
4) has failed to pay certain taxes due from the estate.
5) has failed to render an accounting in spite of orders of the court.
Degala invokes section 2 of Rule 83, which provides that "if an
executor or administrator neglects to render his account and settle the
estate according to law, or to perform an order or judgment of the court,
or a duty expressly provided by these rules, or absconds, or becomes
insane, or otherwise incapable or unsuitable to discharge the trust, the
court may remove him, or, in its discretion, may permit him to resign."
ISSUE/S:
Whether Degala’s claims have bases

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
HELD:
NO. The removal of an administrator lies within the discretion of the
court appointing him. The sufficiency of any ground for removal should
thus be determined by said court, whose sensibilities are, in first place,
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. We
cannot merely substitute our way of thinking for that of a lower court in
matters under its discretionary power. And in the case at bar, we cannot
hold that the respondent Judge gravely abused his discretion, particularly
in view of the circumstance that the alleged grounds for removal are not in
fact weighty.
Just because Jesus Q. Quintillan, former administrator removed by
the court on the ground of adverse interest, is the attorney for Umipig, the
latter is necessarily disqualified on the same ground. Any interest which
said attorney may have is exclusively personal to him, in which the
respondent Valentin Umipig can have nothing to do.
Umipig is not a stranger since he is representing his deceased father
Crisanto as a trustee.
Whether Umipig failed to include in his inventory some properties
belonging to the estate, is question of fact to be determined by the
respondent Judge after the reception of necessary evidence. Indeed, in the
order of the CFI, the clerk of said court was commissioned to receive
evidence which the oppositors, one of whom is the petitioner, may have
regarding the point.
The failure to pay all taxes due from the estate may only be due to
lack of funds, and not to a willful omission.
Regarding Umipig’s alleged failure to render an accounting, it appears
that he did so on January 28, 1947. Whether the statement of accounts
was filed on time and whether the same is complete and correct, are
matters addressed to the judgment and discretion of the respondent
Judge.

Q Are the grounds for removal applicable to special
administrators?
A NO. The statutory provision as to the causes for removal of an
executor or regular administrator enumerated under Section 2, Rule
82, does not apply to the removal of a special administrator. Thus,
the person named executor by the will need not necessarily be made
the special administrator so as to effectuate the desire of the testator.
The nomination in the will acquires imperative nature only after the
will is admitted to probate, in accordance with the wishes of the
testator, not before; 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.
Furthermore, 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.

Q If it was subsequently discovered that the administrator was
indebted to the decedent, is this a ground for removal?
A NO. The mere fact that the duly appointed administrator was indebted
to the decedent is not a ground for his removal, absent any other
circumstance indicative of bad faith or lack of integrity on his part.

Q What is the operative act to make effectual the resignation of
the administrator?
A The resignation must first be accepted by the court.

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), is this a ground for removal?
A NO. The fact that the administrator was later held to be without the
right to intervene in the settlement of the estate as an heir is not a
ground for his removal as such administrator since even a stranger can
be appointed as such.
Q Can anyone be compelled to act as administrator?
A No one may be compelled to act as administrator in any proceedings.
But as long as one has accepted the appointment of administrator,
qualified as such, and led the 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, he is bound to comply with his
duties. if later he finds it difficult or impossible to continue with his
administration, he should at least file an inventory of the properties he
had administered and render an accounting of his administration,
particularly, of the produce, fruits and income of the properties under
administration and then ask the court that he be relieved of his duties.
(Ledesma vs. Enriquez)
Q In case of the removal or resignation of the executor or
administrator and there is no remaining executor or
administrator, what must the court do?
A While Section 2, Rule 82 provides that if there is no remaining executor
or administrator, administration may be granted to any suitable person,
such cannot be used to justify the institution of an administrator even
without a hearing. The abovecited provision evidently envisions a
situation where after such removal, the probate court is empowered
merely to name a temporary administrator pending the appointment of
a new administrator after due hearing.

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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

Q If the administrator resigns, must his resignation be
accepted by the court?
A The resigning administrator must get the approval of the court.
Q What must the administrator do upon resignation?
A He must render an accounting.
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. the administrator must file his resignation letter to the court;
and
2. the administrator must make an inventory of the properties in
his possession.

(

Sec. 3. Acts before revocation, resignation, or removal to be
valid. - The lawful acts an executor or administrator before the
revocation of his letters testamentary or of administration, or before his
resignation or removal, shall have the like validity as if there had been
no such revocation, resignation, or removal.
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.
But the lawful acts of the executor or administrator done in good faith
prior to such, will be protected and held valid as if there had been no
such revocation, resignation or removal.
Q As soon as an administrator is removed, what can/not he do?
A The administrator cannot perform acts of administration, such as
contracting with other persons as administrator. He can no longer
apply to the court to have the transactions approved between the
estate and the 3rd persons.
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.
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, unless a new co- administrator is appointed.
Sec. 4. Powers of new executor or administrator. - Renewal of
license to sell real estate. The person to whom letters testamentary or of
administration are granted after the revocation of former letters, or the

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
death, resignation, or removal of a former executor or administrator,
shall have the like powers to collect and settle the estate not
administered that the former executor or administrator had, and may
prosecute or defend actions commenced by or against the former
executor or administrator, and have execution on judgments recovered
in the name of such former execution or administrator. 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.
Q What does Section 4, Rule 82 provide?
A Section 4, Rule 82 provides for the powers of a new administrator or
executor who has been appointed as such due to the revocation of
former letter or the death, resignation, or removal of the former
executor or administrator, to wit:
1. to have like power to collect and settle the estate not
administered that the former executor or administrator had;
2. to prosecute and defend actions commenced by or against the
former executor or administrator; and
3. to have execution on judgments recovered in the name of such
former execution or administrator
! However, before a new executor or administrator may exercise the
power to sell or mortgage real estate, which power had been granted to
the former executor or administrator, the same must be renewed in
favor of the new executor or administrator. In renewing such power,
further notice of hearing is no longer necessary.
Q With respect to the right of an administrator to dispose of real
properties of the estate, assuming the administrator is
removed, what is the right of the new administrator to
continue the transaction (e.g. pending negotiation for
mortgage)?
A The new administrator will continue the negotiations initiated by the
former administrator.
Q Must this new administrator secure another authority from the
court?
A YES.
Q Must there be a hearing?
A NO hearing is required if the new administrator merely continues the
acts of administration. But he must secure authority from the court to
continue these negotiations.

Note: The order of removal is appealable.
RULE 83
INVENTORY AND APPRAISAL;
PROVISION FOR SUPPORT OF FAMILY
Sec. 1. Inventory and appraisal to be returned within three months. 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. In the appraisement of such estate, the court
may order one or more of the inheritance tax appraisers to give his or
their assistance.
Q What is the duty of every executor or administrator?
A Under this provision, it is the duty of the executor or administrator to
present an inventory of the real estate and of all the goods, chattels,
rights and credits of the deceased which have come into his possession
or to his knowledge. As to property which came to his knowledge but
not into his possession, he may bring such action as he may deem
necessary for the purpose of obtaining possession thereof. (Chua Tan
vs. Del Rosario)
Q What is the purpose of the inventory and appraisal of the
estate?
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

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.

• Inventory( and( appraisal( must( be( made( within( 3( months( from( the(
grant(of(letters(testamentary(or(of(administration.(
• The(threedmonth(period(is(not(mandatory.(The(fact(that(an(inventory(
was( filed( after( the( threedmonth( period( would( not( deprive( the(
probate( court( of( jurisdiction( to( approve( it.( However,( an(
administrator’s( unexplained( delay( in( filing( the( inventory( may( be( a(
ground(for(his(removal.((Sebial!vs.!Sebial)(
• However,(an(administrator’s(unexplained(delay(in(filing(the(inventory(
may(be(a(ground(for(his(removal.((id.)(
• Although(the(administrator(is(not(chargeable(with(the(administration(
of(the(estate(which(has(not(come(to(his(possession,(he(is,(however,(
accountable( for( a( true( and( complete( inventory( of( all( the( property(
belonging(to(the(state(which(has(come(to(his(knowledge.((Chua!Tan.!
Vs.!Del!Rosario)(
(
Q Is inventory and appraisal conclusive of the value of the
estate?
A NO. The inventory and appraisal, when regularly returned, while
generally treated as prima facie evidence of the value of the estate, is
NOT CONLCUSIVE, either as against 3rd persons or the executor or
administrator. Even a decree of the court accepting the inventory will
not be conclusive upon the executor or administrator.
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, the probate court may pass
upon the title of such properties.
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, 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. 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 Why is such determination by the probate court provisional in
character?
A Under these rules, 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, appointment and removal of
guardians and trustees, and the powers, duties and rights of
guardians and wards, trustees, and cestuis que trust, etc. as may be
seen, the law does not extend the jurisdiction of a probate court to
the determination of questions of ownership that arise during the
proceeding. Such questions must be submitted to the court in the
exercise of its general jurisdiction, (Adapon vs. 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.

(page 113 is missing !)
Sec. 2. Certain articles not to be inventoried. - The wearing
apparel of the surviving husband or wife and minor children, the
marriage bed and bedding, and such provisions and other articles as will
necessarily be consumed in the subsistence of the family of the
deceased, under the direction of the court, shall not be considered as

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
assets, nor administered as such, and shall not be included in the
inventory.
Q What should not be included in the inventory?
A The following should be included in the inventory:
1. wearing apparel of the surviving spouse
2. wearing apparel of the minor children;
3. marriage bed and bedding; and
4. such other provisions and articles as will necessarily be
consumed in the subsistence of the family of the deceased.
Sec. 3. Allowance to widow and family. - The widow and minor or
incapacitated children of a deceased person, during the settlement of the
estate, shall receive therefrom, under the direction of the court, such
allowance as are provided by law.

Allowance( –( refers( to( the( monetary( advances( which( are( subject( to(
collation( and( are( likewise( deductible( from( their( share( in( the( estate( of(
the(decedent.(
(

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. financial status of the family; and
2. probable value of the estate.
According to Atty. Gesmundo, the primary consideration is the
SOLVENCY OF THE ESTATE.
Q Can the surviving spouse be granted support from the estate
in all cases? Why or Why not?
A NO. 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, she cannot be granted
support pending the liquidation of the intestate estate. This is based
on the ground that such support, having the character of an advance
payment to be deducted from the respective share of each
participant, would have no legal basis when there is no property to be
partitioned. (Moore & Sons Mercantile Co. vs. Wagner)

Q Under Section 3, Rule 83, who are entitled to allowance during
the settlement of the estate?
A Under this provision, the following are entitled to allowance during the
settlement of the estate:
1. widow of the deceased
2. minor children of the deceased; and
3. incapacitated children of the deceased

Q When does delay in the giving of allowance commence?
A It commences AFTER DEMAND. No demand, no delay.

Q May allowance be granted when the liabilities of the estate
exceed the assets of the estate of the decedent?
A NO. When the liabilities of the estate exceed the estate of the decent,
and the surviving spouse had not contributed any property to the
marriage, the latter cannot be granted support not the minor children
for that matter, pending the liquidation of the estate, because said
support, having the character of an advance payment to be deducted
from the respective share of each participant is without legal basis
when there is no property to be partitioned. (Moore & Sons Mercantile
Co. vs. Wagner)

Sec. 1. Executor or administrator to have access to partnership
books and property; How right enforced. - The executor or
administrator of the estate of a deceased partner shall at all times have
access to, and may examine and take copies of, books and papers
relating to the partnership business, and may examine and make
invoices of the property belonging to such partnership; and the surviving
partner or partners, on request, shall exhibit to him all such books,
papers, and property in their hands or control. On the written application
of such executor or administrator, the court having jurisdiction of the
estate may order any such surviving partner or partners to freely permit
the exercise of the rights, and to exhibit the books, papers, and
property, as in this section provided, and may punish any partner failing
to do so for contempt.

Q Can children of the deceased, who are neither minors nor
incapacitated persons, be granted allowance or support during
the settlement of the estate?
A YES. While the Rules of Court limit allowances to the widow and minor
or incapacitated children of the deceased, Article 188 of the Civil Code
permits the allowances to the surviving spouse and his/her children
without distinction. Since the provisions of the NCC, a substantive law,
gives the surviving spouse and to the children the right to receive
support during the liquidation of the estate of the deceased, such right
cannot be impaired by Rule 83 of the ROC, which is a procedural rule
(Santero vs. CFI)
! Article 188 of the NCC, now Article 133 of the Family Code, provides
that “[f]rom 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, but
from this shall be deducted that amount received for support which
exceeds the fruits or rents pertaining to them.
Q Should the surviving spouse be legitimate?
A YES. The surviving spouse must be legitimate, not merely a commonlaw spouse.
Q Are grandchildren entitled to such allowance pending the
settlement of the estate?
A NO. None of the provisions of the ROC, NCC or Family Code include
grandchildren as among those who may be granted allowance during
the settlement of the estate.
Q Who determines what amount the widow, minor
incapacitated children should receive?
A The court has jurisdiction to determine the respective amounts.
59 |

Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

or

RULE 84
GENERAL POWERS AND DUTIES OF EXECUTORS
AND ADMINISTRATORS

Sec. 2. Executor or administrator to keep buildings in repair. An executor or administrator shall maintain in tenantable repair the
houses and other structures and fences belonging to the estate, and
deliver the same in such repair to the heirs or devisees when directed so
to do by the court.
Sec. 3. Executor or administrator to retain whole estate to pay
debts, and to administer estate not willed. - An executor or
administrator shall have the right to the possession and management of
the real as well as the personal estate of the deceased so long as it is
necessary for the payment of the debts and the expenses of
administration.
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. he shall, at all times, have access to and may examine and
take copies of books and papers relating to the partnership
business, and may examine and make invoices of the property
belonging to such partnership
2. maintain in tenantable repair the houses, and other structures
and fences belonging to the estate, and deliver the same in
such repair to the heirs or devisees when directed to do so by
the court;
3. to make improvements on the properties under administration
with the necessary court approval except for necessary
repairs; and

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
4. 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.
Q In general, 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. He may, therefore,
exercise all acts of administration without special authority of the court.
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 YES. The contract of lease, being a mere act of administration, could
validly be entered into by the executor or administrator within his power
of administration even without the court’s previous authority. (De
Hilado vs. Nava)
Q May the probate court interfere or annul such contract of lease
if entered into without its intervention?
A NO. 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. A separate ordinary action is necessary to that
effect. (De Hilado vs. Nava)
Q If the lease is to be recorded in the Registry of Property, is
judicial approval necessary?
A NO. While it is true that under Article 1647 of the NCC, when lease is to
be recorded in the Registry of Property, it cannot be constituted without
special authority as far as the husband is concerned with respect to the
wife’s paraphernal real estate, the father or guardian as to the property
of the minor or wards and manager without special power.
nevertheless, Section 3, 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. (San Diego vs. Nombre)
Q If the lease is for a period exceeding 1 year, is judicial approval
necessary?
A NO. Under Article 1878 of the NCC on Agency, special powers of
attorney are necessary to lease any real property to another person for
more than 1 year. But an executor or administrator is NOT AN AGENT.
While it may be admitted that the duties of a judicial administrator and
an agent are in some aspects identical, the provisions on agency should
not apply to a judicial administrator.
JUDICIAL ADMINISTRATOR
Appointed by the court.
He is not only the representative
of said court, but also the heirs
and creditors of the estate.
Before entering into his duties, he
is required to post a bond.
Acts of a judicial administrator are
subject to specific provisions of
law and orders of the appointing
court.

AGENT
By agreement
only answerable to his principal.

No bond required.
The protection which the law
grants the principal, in limiting the
powers and rights of the agent,
stems from the fact that control by
the principal can only be through
agreements

(San Diego vs. 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. An administrator or executor is not permitted to deal with himself
as an individual in any transaction concerning trust property. An
administrator or executor holds the property of the estate as a trustee.
While there is no express provision of law prohibiting an administrator
or executor from appointing himself as agent, nevertheless, such should
60 |

Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

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. A contrary ruling would open the door to
fraud and maladministration, and once the harm is done, it might be
too late to correct it. (Jaroda vs. Cusi, Jr.)
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. buy property under his administration as it is prohibited under
Article 1491(3) of the NCC
2. borrow money, even if it is for the benefit of the estate;
3. 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. If he does so with the funds of the
estate, he is chargeable with all the losses incurred thereby
without allowing him to receive the benefits of any profits that
he may make.
4. 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. This is proper and he is not answerable for the low
rate of interest thus obtained. (?)
5. Cannot lease the property for more than one year.
6. 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. The constitution of a lease over property of
the estate is an act of administration and leave of court is not
required. 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. The administrator of a deceased spouse
shall also administer, liquidate and distribute the community property
because the estate of a deceased spouse consists not only of the
exclusive properties of the decedent, but also ½ of the assets of the
conjugal partnership, if any, which may pertain to the deceased.
Q What is the care required in the management of the estate by
the administrator or executor?
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.
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. When there are no
debts to be paid, the estate should pass to the heirs.
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, his own property which he left at death is directly
liable for payments of such debts. The creditor may direct his action
against said executor’s or administrator’s heirs. For until all the
creditors of a deceased person have been paid, there can be no net
inheritance divisible among the heirs.
Q What if a lease contract exceeds 1 year?
A If the lease contract exceeds 1 year, the same is no longer considered
a mere act of administration and leave of court should be required. 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

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
only the estate but also the parties interested therein, 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, which
circumstances are not true with respect to agents.

(
• 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.((Estate!
of!Hilario!Ruiz!vs.!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( codowners( since( this( is( not( within( the( powers( of(
administration.((Caro!vs.!Court!of!Appeals)(
• Where( the( estate( of( a( deceased( person( is( already( the( subject( of( a(
testate( or( intestate( proceeding,( the( administrator( cannot( enter( into(
any( transaction( involving( it( without( any( prior( approval( of( the( Court.(
(estate!of!Olave!vs.!Reyes)(
(
RULE 85
ACCOUNTABILITY AND COMPENSATION OF EXECUTORS
AND ADMINISTRATORS
Sec. 1. Executor or administrator chargeable with all estate and
income. - Except as otherwise expressly provided in the following
sections, every executor or administrator is chargeable in his account
with the whole of the estate of the deceased which has come into his
possession, at the value of the appraisement contained in the inventory;
with all the interest, profit, and income of such estate; and with the
proceeds of so much of the estate as is sold by him, at the price at
which it was sold.
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.
! As distinguished from his duty to present an inventory, the
administrator or executor is accountable for a correct and complete
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.

Except,(
,
He(is(not(accountable(for(properties(which(never(came(to(his(
possession.(
Exception,to,the,exception,(
(
When( through( untruthfulness( to( the( trust( or( his( own( fault( or(
for(lack(of(necessary(caution,(the(executor(or(administrator(failed(to(
recover(part(of(the(state(which(came(to(his(knowledge.(
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, as where through negligence, no action has
been brought for recovery, he is accountable for the property so lost.
Q If the executor is in Manila and the real property is in Cebu,
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. Generally,
however, the court already has jurisdiction over the real property, but
the annotation of lis pendens would serve as further protection.
Sec. 2. Not to profit by increase or lose by decrease in value. No executor or administrator shall profit by the increase, or suffer loss by
the decrease or destruction, without his fault, of any part of the estate.
He must account for the excess when he sells any part of the estate for
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

more than appraisement, and if any is sold for less than the
appraisement, he is not responsible for the loss, if the sale has been
justly made. If he settles any claim against the estate for less than its
nominal value, he is entitled to charge in his account only the amount he
actually paid on the settlement.
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, and not in that as the heirs and creditors
desire it to be. While on the other hand, he shall not profit by the
increase of the estate. Then again, he shall not be held liable for any
decrease which the estate, without his fault, might have sustained. In
addition, it is the duty of the administrator or executor to handle and
marshal the assets of the estate in a business like manner. He is
liable for any unreasonable or unnecessary delay in the settlement
and closing of the estate. Of course, the law does not impose upon
the administrator a high degree of care in the administration of the
estate, but it imposes upon him ordinary and usual care for the want
of which he is personally liable.
Q Is the administrator liable for loss of personal properties
under his administration through fortuitous event?
A NO. An administrator in administration proceeding is not liable for the
loss, by fortuitous event, of the property under his administration in
the absence of proof that said loss was due to his negligence. (Garcia
vs. Escudero)
Q How does one make the executor liable?
A The executor could be made liable by going against his bond.
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.
Sec. 3. When not accountable for debts due estate. - No executor
or administrator shall be accountable for debts due the deceased which
remain uncollected without his fault.
Q What kinds of debts are contemplated by Section 3, Rule 85?
A The debts contemplated by Section 3, Rule 85 are confined to money
claims.
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, is this the debt contemplated by Section 3, Rule 85?
A NO. The debts contemplated by this provision are confined to MONEY
DEBTS.
Q Is the administrator or executor accountable for uncollected
debts?
A NO. The administrator or executor shall not be accountable for
uncollected debts due to the deceased without his fault. However,
whether the debts remain uncollected without the executor’s or
administrator’s fault must be shown by him. The presumption being
that the debt could have been collected, for such is the natural course
of things, and in the absence of proof to the contrary, he is
accountable therefor.
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. 4. Accountable for income from realty used by him. - If the
executor or administrator uses or occupies any part of the real estate
himself, he shall account for it as may be agreed upon between him and
the parties interested, or adjusted by the court with their assent; and if
the parties do not agree upon the sum to be allowed, the same may be
ascertained by the court, whose determination in this respect shall be
final.

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q Can an administrator be a lessee of the estate he is
administering?
A YES by virtue of Section 4, Rule 95. There is, however, a qualification to
this rule. If the administrator was the original lessee before he was
named as administrator, then the lease is perfectly valid. However, if
the lease was constituted during the pendency of his administration,
then it could not be allowed because it would amount to self – dealing.
This situation would now come within the realm of auto- contracts.
Furthermore, the wording of Section 4, 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.
A Contracts for occupation should not be for lease. Contracts of bailment
should not be between the administrator and himself as for the
payment of a debt to him.
! Section 4 is just a reproduction of the Code of Civil Procedure without
taking into account the provisions of the Civil Code. Atty. Gesumundo
was confusing at this point.
Sec. 5. Accountable if he neglects or delays to raise or pay
money. - When an executor or administrator neglects or unreasonably
delays to raise money, by collecting the debts or selling the real or
personal estate of the deceased, or neglects to pay over the money he
has in his hands, and the value of the estate is thereby lessened or
unnecessary cost or interest accrues, or the persons interested suffer
loss, the same shall be deemed waste and the damage sustained may be
charged and allowed against him in his account, and he shall be liable
therefor on his bond.
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. neglects or unreasonably delays to raise money by
(a) collecting the debts or
(b) selling the real or personal estate of the deceased, or
2. neglects to pay over the money he has in his hands, and
(a) the value of the estate is thereby lessened or
(b) unnecessary cost or interest accrues, or
(c) the person interested suffers loss.
Q Who has the right to run after the administrator or executor?
A The heirs, devisees, legatees and the creditors have a right to run after
the administrator or executor.
Sec. 6. When allowed money paid as costs. - The amount paid by
an executor or administrator for costs awarded against him shall be
allowed in his administration account, unless it appears that the action or
proceeding in which the costs are taxed was prosecuted or resisted
without just cause, and not in good faith.
Q What costs may the administrator or executor charge against
the estate?
A Generally, 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, unless he acted in bad faith. In
other words, they are costs of litigation.
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, 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, costs
should be personally borne by him.
Q How would money paid as costs be allowed?
A These costs must have been incurred in good faith.

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Q Are attorney’s fees paid by the administrator to his own
lawyer, who is acting in behalf of the administrator,
chargeable as costs of administration?
A NO because attorney’s fees are considered as part of administration
itself. They are incurred in the natural course of administration.
Q Could it be argued that the services of an attorney be
considered as necessary expense?
A IT DEPENDS. If the services of counsel were availed of for collecting
debts, then it could be considered as a necessary expense. If it is
however incurred for helping the administration, then it is not a
necessary expense.
Sec. 7. What expenses and fees allowed executor or
administrator. - Not to charge for services as attorney. Compensation
provided by will controls unless renounced. An executor or administrator
shall be allowed the necessary expenses in the care, management, and
settlement of the estate, and for his services, four pesos per day for the
time actually and necessarily employed, or a commission upon the value
of so much of the estate as comes into his possession and is finally
disposed of by him in the payment of debts, expenses, legacies, or
distributive shares, or by delivery to heirs or devisees, of two per centum
of the first five thousand pesos of such value, one per centum of so
much of such value as exceeds five thousand pesos and does not exceed
thirty thousand pesos, one-half per centum of so much of such value as
exceeds thirty thousand pesos and does not exceed one hundred
thousand pesos and one-quarter per centum of so much of such value as
exceed one hundred thousand pesos. But in any special case, where the
estate is large, and the settlement has been attended with great
difficulty, and has required a high degree or capacity on the part of the
executor or administrator, a greater sum may be allowed. If objection to
the fees allowed be taken, the allowance may be re-examined on appeal.
If there are two or more executors or administrators, the compensation
shall be apportioned among them by the court according to the services
actually rendered by them respectively.
When the executor or administrator is an attorney, he shall not charge
against the estate any professional fees for legal services rendered by
him.
When the deceased by will makes some other provision for the
compensation of his executor, that provision shall be a full satisfaction
for his services unless by a written instrument filed in the court he
renounces all claim to the compensation provided by the will.

Expenses& of& Administration& –( refers( to( those( necessary( for( the(
management( of( the( property,( for( protecting( it( against( destruction( or(
deterioration,(and(possibly(for(the(production(of(fruits.(
•(
Q What expenses and fees are allowed to the administrator or
executor?
A The administrator or executor is allowed:
1. the necessary expenses in the care, management and
settlement of the estate; and
2.
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, expenses, legacies
or distributive shares or by delivery to the heirs of the
deceased.

Q Are expenses on the anniversary of the death of the deceased
considered necessary expenses of administration?
A NO. The expenses incurred on the occasion of the death anniversary
of the deceased cannot be considered as part of the funeral
expenses. Similarly, the erection of a mausoleum, which forms part of
the sepulture of the deceased cannot be treated as necessary
expense of administration. (Nicolas vs. Nicolas)

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q What other expenses cannot be considered necessary expenses
for administration?
A The following cannot be considered as necessary expenses for
administration:
1. 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;
2. expenses for the settlement of the question as to who are
entitled to the estate left by the deceased;
3. expenses incurred by an executor or administrator to procure a
bond.
4. Personal expenses of the occupant of the heir of the family
residence, e. g. salary of the household help, light and water
bills, cost of gas, oil, etc.
5. Expenses for stenographic notes, unexplained representation
expenses.
! However, expenses for the renovation and improvement of the family
residence, incurred to preserve the family home and to maintain the
family’s social standing in the community, are allowable as legitimate
administration expenses of the estate of the deceased. But the living
expenses of an heir occupying the family residence are not legitimate
administration expenses of the estate of the deceased.
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.

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;(or(
(2)(Petition(in(the(testate(or(intestate(proceeding(asking(the(court,(after(
notice( to( all( persons( interested,( to( allow( his( claim( and( direct( the(
administrator(to(pay(it(as(an(expense(of(administration.(
• Whatever(course(is(adopted,(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.( (Occena! vs.!
Marquez)(
• The(award(of(the(probate(court(in(this(regard(is(appealable(by(Record(
on(Appeal.((Gonzales!vs.!Orense)(
(
Q Who is directly liable for the payment of attorney’s fees when
they are due?
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, the liability for the payment of such fees rests
on the executor or administrator. They attorney cannot hold the estate
directly liable for his fees. But if said fees were paid by the
administrator or executor and are beneficial to the estate and
reasonable, he is entitled to reimbursement from the estate. (Uy Tioco
vs. Imperial and Panis)
! In other words, it is the client who must shoulder the attorney’s fees.
(Lacson vs. Reyes)
! Attorney’s fees are also subject to certain standards, to wit:
1. they must be reasonable, that is to say, they must have a
bearing on the importance of the subject matter in controversy;
2. the extent of services rendered; and
3. the professional standing of the lawyer (Lacson vs. Reyes)
Q Can the administrator or executor seek reimbursement for all
attorney’s fees incurred by him?
A Reimbursement can be had only if the fees paid were beneficial and
reasonable. 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. (Dacanay vs. Hernandez)

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Q Is the administrator or executor entitled to compensation for
his services?
A YES. The administrator or executor is entitled to either a per diem of
4/ day or a commission. He is entitled to either but not to both.
However, he may be denied compensation for his services where the
prolongation of the settlement of the estate is due entirely to his
efforts to defraud the heirs. (Dacanay vs. Hernandez) or where due to
his neglect, the administration has been too expensive.
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, not for every act or task he might perform. Even if
it were to take only a few minutes to do so.
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, expenses, legacies or distributive shares, or by
delivery to heirs or devises. Accordingly, the account of commission is
as follows:
1. 2% of the first 5,000;
2. 1% of more than 5,000 but less than 30,000;
3. ½% of more than 30,000 but less than 100,000; and
4. ¼% of more than 100,000.
Q May a greater sum be allowed the administrator or executor
than the fixed per diem or commission?
A In any special case where the estate is large, and the settlement has
been attended with great difficulty and has required a high degree of
capacity on the part of the administrator or executor, the amount of
an administrator’s or executor’s fee is largely in the discretion of the
probate court, which shall not be disturbed on appeal, except in cases
of abuse thereof.
Q If the administrator or executor is a lawyer, is it a sufficient
ground for increasing his compensation?
A NO. Under Section 7, Rule 85, when the administrator or executor is
an attorney, he shall not charge against the estate any professional
fees for legal services rendered by him. The rule is therefore clear
that he is allowed only the necessary expenses and not attorney’s
fees. His compensation is fixed by the rules but such compensation is
in the nature of commissions and never as attorney’s fees. (Lacson
vs. 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 Although the compensation may be agreed upon by mutual consent
among the parties involved, such is not a valid and binding
contract continuous throughout the whole administration of the
estate. It is always subject to change and the approval of the court,
and to either an increase or decrease as conditions may warrant. At
all times, the compensation of the administrator or executor is a
matter largely to the discretion of the probate court. (Rosenstock vs.
Elser)
Sec. 8. When executor or administrator to render account. 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, unless the court otherwise directs
because of extensions of time for presenting claims against, or paying
the debts of, the estate, or for disposing of the estate; and he shall
render such further accounts as the court may require until the estate is
wholly settled.

General&Rule:((
(
Within( one& year( from( the( time( of( receiving( letters(
testamentary(or(letters(of(administration.(
Exception,(

Special Proceedings Reviewer: Devil’s notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
(
An( extension( of( time( is( allowed( by( the( court( for( presenting(
claims( against,( or( paying( debts( of( the( estate,( or( for( disposing( of( the(
estate;( and( he( shall( render( such( further( accounts( as( the( court( may(
require(until(the(estate(is(wholly(settled.(
(
The( fact( that( the( final( accounts( had( been( approved( does( not(
divest(the(court(of(jurisdiction(to(required(supplemental(accounting(for,(
aside(from(the(initial(accounting,(the(Rules(provide(that(“he(shall(render(
such(further(accounts(as(the(court(may(require(until(the(estate(is(wholly(
settled.(
(
Q Is the period of 1 year mandatory?
A The provision of Section 8, Rule 85 is merely DIRECTORY. But all
courts should exert themselves to close up estates within 12 months
from the time they are presented. Furthermore, where there have been
extensions of time for presenting claims against or paying the debts of
the estate, or for disposing of the estate, the court may direct a period
longer than 1 year.
Q If the administration of the estate has ceased as the heirs have
agreed to a partition of the estate, is the administrator still
bound to render an accounting?
A YES. The duty of an administrator to render an accounting is NOT A
MERE INCIDENT of an administration proceeding, which can be waived
or disregarded when the same is terminated. 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 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. (Joson vs. Joson)
Sec. 9. Examination on oath with respect to account. - The court
may examine the executor or administrator upon oath with respect to
every matter relating to any account rendered by him, and shall so
examine him as to the correctness of his account before the same is
allowed, except when no objection is made to the allowance of the
account and its correctness is satisfactorily established by competent
proof. The heirs, legatees, distributees, 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.

(
Examination&may&be&Dispensed&with&When:(
(1)(No(objection(is(made(to(the(allowance(of(the(account;(and(
(2)(Its(correctness(is(satisfactorily(established(by(competent(proof.(
(
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. The same privilege shall be
extended to the heirs, legatees, distributes, and creditors.
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.
Sec. 10. Account to be settled on notice. - Before the account of an
executor or administrator is allowed, notice shall be given to persons
interested of time and place of examining and allowing the same; and
such notice may be given personally to such persons interested or by
advertisement in a newspaper or newspapers, or both, as the court
directs.
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.
Sec. 11. Surety on bond may be party to accounting. - Upon the
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Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013

settlement of the account of an executor or administrator, a person
liable as surety in respect to such account may, upon application, be
admitted as party to such accounting.
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.
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, which makes him privy to the proceedings
against the principal, he is bound and concluded in the absence of
fraud and collusion, by the judgment against his principal even
though said surety was not a party to the proceedings. (Philippine
Trust Co. vs. Luzon Surety Co., Inc.)
Q Is the surety entitled to notice in the proceeding for the
settlement of the account of the executor or administrator?
A NO. According to Section 11, Rule 85, the surety may, upon
application, be admitted as a party to such proceeding. 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. (Philippine
Trust Co. vs. Luzon Surety Co., Inc.)