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The SC concluded that in proceedings like the present the CFI
RULE 2
has no authority to appoint assessors.
ACTIONS IN GENERAL
(OLD RULES OF COURT)
Q What is the extent of the jurisdiction of the RTC (CFI)
acting as a probate court in special proceedings?
Section 1. Action Defined. – Action means an ordinary suit in a A The CFI, as probate court, has NO jurisdiction to take cognizance of
court of justice, by which one prosecutes another for the enforcement or the petition for reconveyance. The remedy sought by petitioner for
protection of a right, or the prevention or redress of a wrong the reconveyance to her of her share upon the ground that the same
was acquired by respondent through fraud or misrepresentation
Section 2. Special Proceeding Distinguished. – Every other cannot be obtained in the probate proceedings. The CFI, acting as a
remedy, including one to establish the status or right of a party or a probate court, has limited jurisdiction and can take cognizance only of
particular fact, shall be by special proceeding. “matters of probate, both testate and intestate estates, and all such
special cases and proceedings not otherwise provided for. The
Q Are there any distinctions between an action and a special jurisdiction of a probate court is limited and special, and this should
proceeding? be understood to comprehend only cases related to those powers
A YES. specified in the law, and cannot extend to the adjudication of
ACTION SPECIAL PROCEEDING collateral matters. The petition for reconveyance has given rise to a
An ordinary suit in a court of An application or petition to controversy involving rights over a real property which would require
justice, by which one party establish the status or right of a the presentation of evidence and the determination of legal questions
prosecutes another for the party or a particular fact. that should be ventilated in a court of general jurisdiction.
enforcement or protection of a (Mangaliman v. Gonzales)
right, or the prevention or redress Specpro is governed by Rules 72- It is a well- settled rule in this jurisdiction, sanctioned and
of a wrong. 109 of the RoC and other special reiterated in a long line of decisions, that when questions arise as to
laws. ownership of property alleged to be a part of the estate of a deceased
It is governed by Rules 2-71 of person but claimed by some other person to be his property, not by
the RoC virtue of any right of inheritance from the deceased and his estate,
Normally initiated by an action or Initiated by mere application or such questions cannot be determined in the court of administrative
complaint; requires the filing of petition or by filing a motion, proceedings. The CFI, acting as a probate court, has no jurisdiction to
formal proceedings which is titled as “in the matter of” adjudicate such contentions which must be submitted to the CFI in
There are 2 definite and particular There is a definite party the exercise of its general jurisdiction as a court of first instance.
adverse parties (plaintiff and petitioner/movant but no definite (Baybayan v. Aquiino)
defendant) adverse party as the proceeding is
usually considered to be against NOTE: the following amendments made by the BP129 with respect to
the whole world. certain matters on special proceedings:
What is filed by the defendant is A person opposing the petition
called ANSWER files an OPPOSITION Section 9(1). Jurisdiction. – The Court of Appeals shall exercise
In an action, a right is alleged to While a right is alleged to exist, original jurisdiction to issue writs of mandamus, prohibition, certiorari,
exist and have been violated there may be no violation since habeas corpus, and quo warranto, and auxiliary writs or processes,
what is sought is merely the whether in aid of its appellate jurisdiction;
establishment of a right, status or
fact Section 19(4). Jurisdiction in civil cases. – Regional Trial Courts
The court is of GENERAL The court is one of LIMITED shall exercise exclusive original jurisdiction in all matters of probate, both
jurisdiction jurisdiction testate and intestate, where the gross value of the estate exceeds One
hundred thousand pesos (P100,000.00) or, in probate matters in Metro
HAGANS vs. WISLIZENUS, 42 PHIL 880 (1920) Manila, where such gross value exceeds Two hundred thousand pesos
(200,000.00)
FACTS:
Respondent judge, in support of his demurrer, argues that the Section 21(1). Original jurisdiction in other cases. – Regional
provision of Act no. 190 permit him to appoint assessors in special Trial Courts shall exercise original jurisdiction In the issuance of writs of
proceedings. The petitioner contends that no authority in law exists for the certiorari, prohibition, mandamus, quo warranto, habeas corpus and
appointment of assessors in such proceedings. injunction which may be enforced in any part of their respective regions

ISSUE/S: Section 23. Special jurisdiction to try special cases. – The


Whether the CFI, “in special proceedings” is authorized under the Supreme Court may designate certain branches of the Regional Trial
law to appoint assessors for the purpose of fixing the amount due to an Courts to handle exclusively criminal cases, juvenile and domestic relations
administrator or executor for his services and expenses in the care, cases, agrarian cases, urban land reform cases which do not fall under the
management and settlement of the estate of a deceased person. 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
HELD: and efficient administration of justice.
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 Section 33(1). Jurisdiction of Metropolitan Trial Courts,
between an “action” and a “special proceeding.” Municipal Trial Courts and Municipal Circuit Trial Courts in civil
An action is a formal demand of one’s right in a court in a manner cases. – Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
prescribed by the court or by the law. It is the method of applying legal Circuit Trial Courts shall exercise exclusive original jurisdiction over civil
remedies according to definite established rules. actions and probate proceedings, testate and intestate, including the grant
The term “special proceeding” may be defined as an application or of provisional remedies in proper cases, where the value of the personal
proceeding to establish the status or right of a party or a particular fact. property, estate, or amount of the demand does not exceed P100,000.00
Usually, in special proceeding, no formal pleadings are required, unless the or, in Metro Manila where such personal property, estate, or amount of
statute expressly so provides. In special proceedings, the remedy is granted the demand does not exceed P200,000.00 exclusive of interest damages
generally upon an application or motion. of whatever kind, attorney's fees, litigation expenses, and costs, the
amount of which must be specifically alleged: Provided, That where there

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Ronald Chua
are several claims or causes of action between the same or different parties, The respondents filed a petition for summary settlement of the
embodied in the same complaint, the amount of the demand shall be the estate of Vincent Oria. The probate court issued an order adjudicating the
totality of the claims in all the causes of action, irrespective of whether the estate to the heirs of the decedent. However, when a representative of
causes of action arose out of the same or different transactions the private respondents went to cultivate the portion adjudicated to them,
he was prevented by Jose Diaz and Cipriano Evangelista. As a
Section 35. Special jurisdiction in certain cases. – In the absence consequence, petitioners filed a complaint for the quieting of title, plus
of all the Regional Trial Judges in a province or city, any Metropolitan Trial damages and to refrain the defendants from enforcing the writ of
Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may hear and execution.
decide petitions for a writ of habeas corpus or applications for bail in Meanwhile, the probate court found that the property in the
criminal cases in the province or city where the absent Regional Trial Judges question was registered in the names of the petitioners. the same court
sit. 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
Section 39. Appeals. – The period for appeal from final orders, claimed by Baybayan covered by a TCT. Pursuant thereto, petitioners filed
resolutions, awards, judgments, or decisions of any court in all cases shall an Omnibus Motion amending the complaint and dropping some
be fifteen (15) days counted from the notice of the final order, resolution, defendants. the judge however, found that it did not comply with his order
award, judgment, or decision appealed from: Provided however, That in and dismissed the case. Petitioners now contend that the judge has no
habeas corpus cases, the period for appeal shall be forty-eight (48) hours authority to dismiss the case because the order to amend the complaint
from the notice of the judgment appealed from. was issued in connection with Special Proceeding 24-R, where they were
not even parties.
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 ISSUE/S:
consecutively, together with an index of the contents thereof. Whether the petitioners are bound by the judge’s ruling.

This section shall not apply in appeals in special proceedings and in other HELD:
cases wherein multiple appeals are allowed under applicable provisions of YES. The parties voluntarily submitted themselves to the
the Rules of Court. 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
JURISDICTION
inconsistent posture by attacking the jurisdiction of the judge to whom
they submitted their cause voluntarily.
MANGALIMAN vs. GONZALES, 36 SCRA 462 (1970) 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
FACTS: ownership of the said lot by the judge presiding over a court exercising
Mangaliman was an illegitimate daughter of Alejandro Gonzales. probate jurisdiction is not final or ultimate in nature and is without
In a letter, she was given a legacy of 1/8 undivided portion of Hacienda prejudice to the right of an interested party to raise the question of
Evangelista, but since she was still a minor then, her share was placed ownership in a proper action.
under the guardianship of her half- brother Alejandro Gonzales, Jr. When questions arise as to ownership of property alleged to be
Respondent- apellee, Manuel Gonzales is a legitimate son of the testator and a part of the estate of a deceased person, by the adverse party to that of
the administrator of the estate the deceased and his estate, such questions cannot be determined in the
Hacienda Evangelista, however, for alleged failure of the other courts of administrative proceedings. The CFI, acting as a probate court,
heirs to pay the aforesaid amount, was levied upon and subsequently sold has no jurisdiction to adjudicate such contentions which must be
by the probate court. A final deed of sale was issued to respondent a year submitted to the CFI in the exercise of its general jurisdiction as a court of
later after the failure of the petitioner’s guardian to redeem her undivided first instance.
share. The order to amend the complaint did not specify what the
In April 1962, petitioner already of age, filed a petition before the amendments should be or how the complaint should be amended so that
same probate court for the reconveyance of her 1/8 undivided share the petitioners could not be faulted. Thus, the petition for certiorari to
contending that respondent had obtained the subsequent writs of execution review the lower court order is granted.
through fraud and misrepresentations.
Probate court ruled that respondent may not be divested of title
RULE 72
under a probate proceeding but in an independent suit filed with competent
SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
court. Hence this appeal by petitioner.

ISSUE/S: Sec. 1. Subject matter of special proceedings. - Rules of special


Whether CFI, as probate court, has jurisdiction to entertain a proceedings are provided for in the following cases:
petitioner’s motion for reconveyance (a) Settlement of estate of deceased persons;
(b) Escheat;
HELD: (c) Guardianship and custody of children;
NO. the CFI, acting as a probate court, has limited jurisdiction and (d) Trustees;
cognizance of matters of probate both testate and intestate. But this should (e) Adoption;
be understood to comprehend only cases related to those powers specified (f) Rescission and revocation of adoption;
by law, and cannot extend to the adjudication of collateral matters. (g) Hospitalization of insane persons;
The petition for reconveyance has given rise to a controversy (h) Habeas corpus;
involving rights over a real property which would require the presentation of (i) Change of name;
evidence and the determination of legal question that should be ventilated in (j) Voluntary dissolution of corporations;
a court of general jurisdiction. (k) Judicial approval of voluntary recognition of minor natural
children;
(l) Constitution of family home;
(m) Declaration of absence and death;
Cancellation or correction of entries in the civil registry.
BAYBAYAN vs. AQUINO, 149 SCRA 186 (1987)
Q What may be the subject matter of special proceedings?
FACTS: A Refer to Section 1, Rule 72 above.
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- Although paragraph (c) refers only to “children,” guardianship is when they have not prejudiced the adverse party and have not
not limited to children but extends to incompetents. deprived the court of its authority.
- Where paragraph (m) speaks of declaration of “absence and
death,” there cannot be a special proceeding instituted just to Q Is the Statue of Limitations applicable to probate
obtain a declaration of death. Actual or presumptive death cannot proceedings?
be the subject of a judicial pronouncement or declaration if it is the A NO. To hold that the Statue of Limitations is applicable to the probate
only question or matter involved in a case or which a competent of wills would be destructive of the right to testamentary disposition
court has to pass. Such declaration may be made only in and violative of the owner’s right to control his property within the legal
connection to a proceeding for the settlement of the estate of the limits. It is not without purpose that Rule 76 prescribes that “any
alleged decedent. 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.”
• Special proceedings are not limited to the case
enumerated in Sec. 1 but includes cases the purpose Q Is pre- trial applicable in special proceedings?
A YES. As there is no provision in the Rules of Court limiting its
of which is to establish the status or right of a party or
applicability to civil actions.
a particular fact.
Q Is judgment by default applicable to proceedings to probate
Other Special Proceedings a will?
(a) Liquidation proceedings A NO. A default can only arise in contentious litigation where a party who
(b) Corporate Rehabilitation has been impleaded as a defendant and served with process fails to
(c) Recognition and enforcement of arbitration clause or 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
award (RA 9285)
a contentious litigation in any sense because nobody is impleaded or
(d) Vacation, setting aside correction or modification of served with process. It is a special proceeding, and altogether notice of
an arbitral award (RA 9285) the application is published. Nobody is bound to appear and no order
(e) Any application with a court for arbitration assistance of judgment of default is ever entered. If the application is not
and supervision (RA 9285) opposed, the court may allow the will on the testimony of one of the
(f) Arbitration under a contract or submission (Sec. 22, subscribing witnesses only, provided none of the reasons for
RA 876) 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
Sec. 2. Applicability of rules of civil actions. - In the absence of
the will is properly denominated a judgment. It is not a judgment
special provisions, the rules provided for in ordinary actions shall be, as
rendered upon default even though no person appears to oppose the
far as practicable, applicable in special proceedings.
probate.

Q What is the procedure of appeal in special proceedings?


• In the absence of special provisions, the rues A In an appeal in a special proceeding under Rule 109 and in other cases
provided for in ordinary actions shall be as wherein multiple appeals are allowed, the period of appeal is 30
practicable, applicable in special proceedings. 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
Ordinary Civil Special Civil Action Special Proceeding which to file a record on appeal may be too short and hence, a motion
Action for extension of time to file the record on appeal may be granted,
One by which a party Civil action subject to Remedy by which a subject to the certain requirements.
sues another for the specific rules. party seeks to
enforcement or establish a status, a FERNANDEZ vs. MARAVILLA, 10 SCRA 589 (1964)
protection of a right or right or a particular
the prevention of a fact FACTS:
redress or wrong Herminio Maravilla filed a petition for the probate of his wife’s
Governed by the rules Ordinary rules apply Governed by special will with the CFI. The wife’s siblings filed an opposition on the ground that
for ordinary civil primarily but subject rules and ordinary the will was not signed on each page by the testator in the presence of
actions to specific rules rules apply suppletorily the attesting witnesses and of one another. On his motion, Maravilla was
Involves two or more Involves two or more May involve only one appointed as administrator.
parties parties party The court denied probate. The siblings then sought the
appointment of Eliezar as co- administrator to protect their interest
Initiated by complaint Some are initiated by Initiated by petition
especially since the will was denied probate. Maravilla filed an appeal of
complain while some
the decision denying probate. The siblings and several of the devisees
are initiated by
named in the will then sought the annulment of Maravilla’s appointment as
petition
administrator. The court then appointed Eliezar as co- administrator.
Based on a cause of Some special civil Not based on a cause
From the above order of appointment of a co- administrator,
action actions have no cause of action
Maravilla filed with the CA a petition for certiorari and prohibition to annul
of action Except, Habeas
said order. The CA then issued a writ of preliminary injunction. The
Corpus
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
Q How should the rules governing special proceedings be
never an appeal on the denial of probate by the CFI. Maravilla contends
construed?
that the decision of the probate court is under appeal and as such writ
A Since the rules provided for in special proceedings are part of the Rules
prayed for was in aid of the appellate jurisdiction and that the amount is
of Court, it follows that they should be LIBERALLY CONSTRUED for
less than ₱200,000 as the amount to be protected by Eliezar’s
the purposes stated in Section 2, Rule 1. lapses in the literal observance
appointment was only ₱90,000 “more or less.” The CA granted the writ of
of a rule of procedure will be overlooked when they do not involve public
certiorari and prohibition. Hence this appeal.
policy when they arose from an honest mistake or unforeseen accident,
ISSUE/S:
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Whether the CA has appellate jurisdiction over special proceedings. issued or even authorize their revocation until the
Will has been proved and allowed.
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
Powers and Duties of a Probate Court:
estate in question is more than ₱200,000 (₱362,000). Under Section 2, (a) The court orders the probate of the wall of the
Rule 75, the property to be administered and liquidated in in/testate decedent
proceeding is the entire estate and not merely the part of the conjugal (b) Grants letters administration of the party best
property pertaining to the deceased spouse. entitled thereto or to any qualified applicant
Not having appellate jurisdiction, as the amount is over (c) Supervise and controls all acts of administration
₱200,000, the CA cannot have original jurisdiction to issue the 2 above (d) Hears and approves claims against the estate of
mentioned writs as such was merely incidental.
Note that what is at issue between the parties is the annulment of
the deceased
the appointment of Eliezar and is such a controversy involving a contest for (e) Orders payment of lawful debts
administration where amount or value of the entire estate is in controversy. (f) Authorizes sale, mortgage or any encumbrance of
Maravilla’s contention is that appeals in special proceedings are within the real estate
exclusive appellate jurisdiction of the CA as they are not enumerated in (g) Directs the delivery of the estate to those entitled
Section 17 of the Judiciary Act. On the other hand, it has been held that the thereto
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 • The court acts as a TRUSTEE.
special proceedings if they are not inconsistent with or serve to complement
special proceedings. Q What are the steps in determining which court has
jurisdiction over the probate of the will?
A The following must first be determined:
RULE 73 1. whether the decedent is a resident of the Philippines or not
VENUE AND PROCESS 2. gross value of the estate (to determine whether it is the
MTC/RTC which has jurisdiction and whether it could be subject
Sec. 1. Where estate of deceased person settled. - If the to summary settlement of estate under Rule 74)
decedent is an inhabitant of the Philippines at the time of his death, 3. the residence of the decedent to determine the venue
whether a citizen or an alien, his will shall be proved, or letters of 4. whether the deceased left any debts
administration granted, and his estate settled, in the Court of First 5. whether the deceased left a will
Instance in the province in which he resides at the time of his death, and ₱ if there is no will and no debts, apply Rule 74 on the summary
if he is an inhabitant of a foreign country, the Court of First Instance of settlement of estates
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 Extent of Jurisdiction
the exclusion of all other courts. The jurisdiction assumed by a court, so Probate courts are courts of LIMITED jurisdiction. It
far as it depends on the place of residence of the decedent, or of the may only determine and rule upon issues relating to
location of his estate, shall not be contested in a suit or proceeding, the settlement of the estate, namely (LAD):
except in an appeal from that court, in the original case, or when the want
(a) Administration of the estate
of jurisdiction appears on the record.
(b) Liquidation of the estate; and
* note that under BP129, the so- called inferior courts, the Metropolitan, (c) Distribution of the estate.
Municipal or Municipal Circuit Trial Courts, have been conferred
exclusive jurisdiction in all matters of probate both intestate, where the Q What is the jurisdiction of a probate court?
gross value of the estate does not exceed ₱2 0 , 0 0 0 . A Probate proceedings are purely statutory. Thus, a probate court’s
jurisdiction is limited and special and all acts in excess of the
BP 129, Section 19. Jurisdiction in Civil Cases – statutory power conferred are nugatory and do not bind those who
have invoked its authority or submitted to its decision. The authority/
Regional Trial Courts shall exercise exclusive original
jurisdiction cannot expand to collateral matters not arising out of or in
jurisdiction: any way related to the settlement and adjudication of the properties of
XxX the deceased.
(4) In all matters of probate, both testate and intestate,
where the gross value of the estate exceeds P100,000 • The jurisdiction of the RTC as a probate or intestate
or, in probate matters in Metro Manila, where such gross court relates only to matters having to do with the
value exceeds P200,000. settlement of the estate and probate of will of
deceased persons and the appointment and
Conversion of an Intestate into Testate removal of administrators, executors, guardians and
Proceeding trustees but does not extend to the determination of
• The probate of a will is mandatory and therefore, questions of ownership that arise during the
takes precedence over intestate proceedings. proceedings. The intestate court may pass upon the
• The conversion of an intestate proceeding into a title to a certain property for the purpose of
testate one is entirely a matter of form and lies within determining whether the same should or should not
the sound discretion of the court be included in the inventory but such determination
• The mere discovery of s document purporting to be is not conclusive and is subject to final decision in a
the last will and testament of the decedent after separate action regarding ownership which may be
appointment of an administrator and assumption that constituted by the parties.
the decedent died intestate does not, however, ipso
facto nullify the letters of administration already Jurisdiction to Distribute the Estate
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• It is the probate court that has exclusive jurisdiction
to make a just and legal distribution of the estate Jurisdiction to Determine Heirs
• The probate court, in the exercise of its jurisdiction to • A judicial declaration that a certain person is an heir
make distribution, has power to determine the (or only heir) is exclusively within the range of the
proportion or parts to which each distributee is administration proceedings and cannot properly be
entitled – to hold that a separate and independent made an independent action.
action is necessary to that effect, would be contrary • A separate action for the declaration of heirs is not
to the general tendency of the jurisprudence of proper.
avoiding multiplicity of suits.
Q When does the court acquire jurisdiction in the settlement
Jurisdiction to Award Attorney’s Fees 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
• The application to fix attorney’s fees may be made
attaches when its limited jurisdiction is invoked by the presentation to
before and passed upon by the probate court in the the court of proper petition by some person entitled to take such
same proceedings where attorney’s services were action. There must be evidence before it:
rendered. 1. that a person has died leaving a will
2. in the case of a resident of this country, that he died in the
General Rule: Probate Court cannot determine issue of province where the court exercises territorial jurisdiction
ownership 3. in the case of a nonresident, that he ahs left an estate in the
province where the court is situated
Exceptions:
4. that the testament or last will of the deceased has been
(a) Ownership may be PROVISIONALLY delivered to the court and is in the possession thereof (Salazar
determined for the purpose of including vs. CFI)
property in inventory, without prejudice to its
final determination in a separate action; or SALAZAR vs. CFI OF LAGUNA AND RIVERA, 64 PHIL 78 (1937)
(b) When all the parties are heirs and they
submit the issue of ownership to the probate FACTS:
Crispin Oben instituted special proceeding and prayed for the
court provided that the rights of third parties are
probate of the will allegedly made by his deceased mother on May 13,
not prejudiced. 1924. The petition was opposed by Sabina Rivera and prayed for the
(c) Question is one of collation or advancement. 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
• An order to include properties in inventory is merely order setting the hearing thereof and directing such publications as
provisional and interlocutory. required by law.
The court denied the motion for publication and ordered the
• Since the determination of the probate court of the
Rivera to institute another proceeding and apply separately for the
question of title was merely provisional, is not binding probate of the alleged will. The respondent filed a motion for
with any character of authority, having been made reconsideration and the court, on March 31, 19937, issued an order
only for purposes of inclusion in inventory, it cannot setting aside the former one and directing that the will presented by the
be the subject of execution, as against its respondent be set for hearing, that the publications required by law be
possessor who has set up title in himself or adversely made and that said will be heard jointly with the will presented by the
to the decedent and whose right to possess has not petitioner in the same proceeding instituted by the latter. Sometime later,
the court ordered that the expenses for the publications made in the
been ventilated and adjudicated in an appropriate
newspapers be defrayed by the respondent.
action. The petitioner filed two motions for reconsideration which were
denied and, finally, instituted this certiorari proceeding. In order that the
Where the Estate is of Small Value hearing and publications ordered by the court may be carried out, the
• The policy of the law is to terminate proceedings or respondent, on July 20, 1937, deposited P24 and filed the original of the
the settlement of estate of deceased persons with the will the probate of which had been sought by her.
least loss of time. This is specially true with small
ISSUE/S:
estates for which the rules provide precisely Whether the court acquired no jurisdiction to take cognizance of
summary procedure dispensing with the appointment the counter-petition for the probate of the second will, or to set the same
of an administrator together with the other involved for hearing of said will to be held in the same proceeding jointly with the
and cumbersome steps ordinarily required in the first will, on the ground that the respondent had not previously filed her
determination of assets of the deceased and the pleading nor paid the fees of the clerk of court.
persons entitled to inherit therefrom and the payment
of his obligations HELD:
YES. Court of First Instance acquires jurisdiction to probate a will
• It is not proper to delay the summary settlement of a when it is shown by evidence before it:
deceased person just because an heir or a third (1) That a person has died leaving a will;
person claims that certain properties belong to him. (2) in the case of a resident of this country, that he died
Such claim must be ventilated in an independent in the province where the court exercises territorial jurisdiction;
action, and the probate court should proceed to the (3) in the case of a nonresident, that he has left a estate
distribution of the estate, if there are no other legal 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
obstacles to it.
and is in the possession thereof.
• For the protection of the claimant, the appropriate According to the facts alleged and admitted by the parties, it is
step is to have the proper annotation of his lis evident that the court has acquired jurisdiction to probate the second will,
pendens entered. in view of the presence of all the jurisdictional facts above-stated. The

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Ronald Chua
respondent's counter-petition should, in this case, be considered as a Moreover, petitioner is now estopped from questioning the jurisdiction of
petition for the probate of the second will, the original of which was filed by the probate court in the petition for relief. It is a settled rule that a party
her on July 20, 1937. cannot invoke the jurisdiction of a court to secure affirmative relief,
The payment of the fees of the clerk of court for all services to be against his opponent and after failing to obtain such relief, repudiate or
rendered by him in connection with the probate of the second will and for question that same jurisdiction.
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 Q Is the residence of the deceased in probate proceedings
authority to proceed with the probate of a will jurisdictional?
A NO. the question of residence is determinative only of the venue and
Q What determines venue in the settlement of the estate of a does not affect the jurisdiction of the court. Thus, the institution of the
deceased person? proceeding in the province wherein the decedent neither has residence
A The residence of the decedent at the time of his death is determinative of nor estate does not vitiate the action of the probate court. As venue is
the venue of the proceedings. waivable, the submission of all affected parties to said proceedings is
1. if the decedent is a resident of the Philippines at the time of his aa waiver of objection to this error.
death, his will shall be proved; or a letter of administration
granted, and his estate settled in the M/RTC of any province in In the matter of the intestate estate of the late Kaw Singco
which he resides at the time of his death; (alias Co Chi Seng). SY OA vs. CO HO, 74 PHIL 239 (1943)
2. if the decedent is a non- resident of the Philippines, his will shall
be proved or letter of administration granted, and his estate FACTS:
settled in the M/RTC of any province and which he had estate. Sy Oa is the administratrix of the intestate estate of Kaw
Singco. During the intestate proceedings, an opposition is filed by one Co
Q Which court has jurisdiction to take cognizance of the Ho. The latter claims that the court had no jurisdiction over the subject
settlement of the estate of a non- resident? matter because the proceedings were not filed in the province where the
A The settlement of the estate of Adoracion Campos was correctly filed deceased last resided. Subsequently, the SC issued a resolution stating
with the CFI of Manila where she had an estate since it was alleged and that there is no issue with respect to jurisdiction but there is merely a
proven that Adoracion at the time of her death was citizen and question of venue.
permanent resident of Pennsylvania, USA and not a “usual resident of
Cavite” as alleged by petitioner (Cayetano vs. Leonidas) ISSUE/S:
Whether the last place of residence of the deceased is an
POLLY CAYETANO vs. CFI JUDGE TOMAS T. LEONIDAS, 129 element of jurisdiction.
SCRA 522 (1984)
HELD:
FACTS: NO. Section 600 of Act no. 190, providing that the estate of a deceased
Adoracion C. Campos died, leaving her father, Hermogenes person shall be settled in the province where he had last resided, could
Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. not have been intended as defining the jurisdiction of the probate court
Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos over the subject matter because such legal provision is contained in a law
was the only compulsory heir, he executed an Affidavit of Adjudication of procedure dealing merely with procedural matters and as this court has
whereby he adjudicated unto himself the ownership of the entire estate of said time and again, procedure is one thing and jurisdiction over the
the deceased Adoracion Campos. subject matter is another. The law on jurisdiction confers upon the CFI
Eleven months after, Nenita C. Paguia filed a petition for the jurisdiction over all probate cases independently of the place of residence
reprobate of a will of the deceased, Adoracion Campos, which was allegedly of the deceased. Since, however, there are many CFIs in the Philippines,
executed in the United States and for her appointment as administratrix of the law of procedure fixes the venue or the place where each case shall
the estate of the deceased testatrix. be brought. Thus, the place of residence of the deceased is not an
In her petition, Nenita alleged that the testatrix was an American element of jurisdiction over the subject matter but merely of venue. And it
citizen at the time of her death and was a permanent resident of is upon this ground that in the new Rules of Court in the province where
Philadelphia, Pennsylvania, U.S.A. An opposition to the reprobate of the will the estate of a deceased person shall be settled is properly called “venue.”
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 Q What should the court do if the objection of improper
provisions of the will are null and void; and that even if pertinent American venue is seasonally raised?
laws on intrinsic provisions are invoked, the same could not apply inasmuch A The petition for probate should be dismissed and the proceedings
as they would work injustice and injury to him. should be instituted in the proper court/venue.
Subsequently, he retracted his opposition and the questioned will
was admitted to and allowed probate in the Philippines and Nenita Paquia Q What is the remedy of a party if the court refuses to
was appointed administratrix. Sometime later, Hermogenes filed a petition dismiss the petition for probate despite timely objection on
for relief on the ground that the withdrawal of his opposition was secured the ground of improper venue?
through fraudulent means. Hermogenes also filed another motion to vacate A It has been held that the probate jurisdiction of a court depending on
and/or set jurisdiction 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
ISSUE/S: from the original case, EXCEPT when the want of jurisdiction appears
Whether respondent judge acted with grave abuse of discretion on the record.
when he allowed the withdrawal of the petitioner's opposition to the
reprobate of the will. 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
HELD: in Manila. Y opposes because the decedent is a resident of
NO. Under Section 1, Rule 73, if the decedent is an inhabitant of a Makati. Resolve.
foreign country, his will shall be proved or letter of administration granted, A The petition should be dismissed on the ground of improper venue.
and his estate settled, in the Court of First Instance of any province in which From the allegation in the petition, it is clear that venue has been
he had estate. Thus, the settlement of the estate of Adoracion Campos was improperly laid.
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 Q What if the court denies the opposition and allows the will
death was a citizen and permanent resident of Pennsylvania, United States to be presented for probate, what is your remedy?
of America and not a "usual resident of Cavite" as alleged by the petitioner.
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Ronald Chua
A The remedy is to file certiorari proceedings before the CA because it is ISSUE/S:
clear that the lower court has no jurisdiction since as alleged in the What is meant by “residence” under Section 1, Rule 73 with respect to
petition, B was a resident of Makati, while the petition was filed in Manila. the settlement of estates? Whether there was an improper venue.
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 HELD:
have the effect of questioning the correctness and wisdom of the lower The term "resides" should be viewed or understood in its popular
court’s judgment but at the same time recognizing the jurisdiction of the sense, meaning, the personal, actual or physical habitation of a person,
lower court. actual residence or place of abode. It signifies physical presence in a place
₱ Under Section 9 of BP 129, CA exercises jurisdiction to issue writs of and actual stay thereat. The term “residence” under Rule 73 is in reality,
mandamus, prohibition, certiorari, habeas corpus and quo warranto and merely a matter of venue, as the caption of the Rule indicates –
auxillary writs of processes, whether in aid of its appellate jurisdiction. “Settlement of Estate of Deceased Persons, Venue and Processes.” xxx the
place of residence of the deceased in settlement of estates, probate of a
Q X filed a petition to probate the will of Y in the CFI of Makati will, and issuance of letters of administration does not constitute an
alleging that the latter was a resident of Makati at the time element of jurisdiction over the subject matter. It is merely constitutive of
of his death. Z opposed on the grounds that venue has been venue.
improperly laid as the decedent was a resident of Makati. In the present case, SC ruled that the last place of residence last
Resolve . place of residence of the deceased Amado G. Garcia was at 11 Carmel
A What do you think? Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna. A
₱ Atty. Gesmundo was mumbling about multiple appeals which we will death certificate is admissible to prove the residence of the decedent at
discuss much later in the course. the time of his death. Aside from this, the deceased's residence certificate
for 1973 obtained three months before his death; the Marketing
Q Can venue be waived? Agreement and Power of Attorney turning over the administration of his
A Venue is a matter of procedure, which MAY BE WAIVED expressly or two parcels of sugar land to the Calamba Sugar Planters Cooperative
impliedly even in inferior courts. Where defendant, knowing from the Marketing Association, Inc.; the Deed of Donation dated January 8, 1973,
very beginning that venue was improperly laid, allows the trial to be held transferring part of his interest in certain parcels of land in Calamba,
against him, he CANNOT, after the rendition of an unfavourable Laguna to Agustina B. Garcia; and certificates of titles covering parcels of
judgment validly appear in court and raise be deemed waived and can no land in Calamba, Laguna, show in bold documents that Amado G. Garcia's
longer be pleaded. last place of residence was at Quezon City.
Withal, the conclusion becomes imperative that the venue for Virginia
Q What does the term “resides” refer to? C. Fule's petition for letters of administration was improperly laid in the
A The term "resides" connotes ex vi termini "actual residence" as Court of First Instance of Calamba, Laguna. Nevertheless, the long-settled
distinguished from "legal residence or domicile." This term "resides," like, rule is that objection to improper venue is subject to waiver. But in the
the terms "residing" and "residence," is elastic and should be interpreted case before Us the Court of Appeals had reason to hold that in asking to
in the light of the object or purpose of the statute or rule in which it is substitute Virginia G. Fule as special administratrix, Preciosa B. Garcia did
employed. In the application of venue statutes and rules — Section 1, not necessarily waive her objection to the jurisdiction or venue assumed
Rule 73 of the Revised Rules of Court is of such nature — residence by the Court of First Instance of Calamba, Laguna, but availed of a mere
rather than domicile is the significant factor. Even where the statute uses practical resort to alternative remedy to assert her rights as surviving
the word "domicile" still it is construed as meaning residence and not spouse, while insisting on the enforcement of the Rule fixing the proper
domicile in the technical sense. Some cases make a distinction between venue of the proceedings at the last residence of the decedent.
the terms "residence" and "domicile" but as generally used in statutes
fixing venue, the terms are synonymous, and convey the same meaning Q What is the rule when the settlement of the estate of a
as the term "inhabitant." In other words, "resides" should be viewed or deceased resident are instituted in two or more courts, and
understood in its popular sense, meaning, the personal, actual or physical the question of venue is raised before the same?
habitation of a person, actual residence or place of abode. It signifies A Section 1, Rule 73 on venue does not state that the court with whom
physical presence in a place and actual stay thereat. No particular length the in/testate petition is first filed acquires exclusive jurisdiction. The
of time of residence is required though; however, the residence must be Rule precisely and deliberately provides that "the court first taking
more than temporary. (Garcia Fule vs. CA) 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
Residence – his personal, actual or physical habitation, Rule — since it deals with venue and comity between courts of equal
and co-ordinate jurisdiction — indicates that the court with whom the
his actual residence or place of abode.
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
VIRGINIA GARCIA FULE vs. CA, PRECIOSA B. GARCIA and
all other courts.
AGUSTINA B. GARCIA, 74 SCRA 189 (1976)
ROSA CUENCO vs. CA, MANUEL CUENCO, LOURDES CUENCO,
FACTS:
CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO,
Virginia G. Fule filed with the CFI of Laguna a petition for letters
CONSUELO CUENCO REYES, and TERESITA CUENCO
of administration alleging "that on April 26, 1973, Amado G. Garcia, a
GONZALEZ, 53 SCRA 360 (1973)
property owner of Calamba, Laguna, died intestate in the City of Manila,
leaving real estate and personal properties in Calamba, Laguna, and in other
FACTS:
places, within the jurisdiction of the Honorable Court." At the same time, she
Senator Mariano Jesus Cuenco died at the Manila Doctors'
moved ex parte for her appointment as special administratrix over the
Hospital, Manila. He was survived by his widow, Rosa Cayetano Cuenco,
estate. Judge Malvar granted the motion.
and their 2 minor sons all residing in Sta. Mesa Heights, Quezon City, and
A motion for reconsideration was filed by Preciosa B. Garcia, the
by his children of the first marriage, respondents herein, all residing in
surviving spouse of the deceased, contending that
Cebu.
)1 The decedent “resided” in QC for 3 months before his death as shown
Lourdes Cuenco filed a Petition for Letters of Administration
by his death certificate.
with the court of first instance of Cebu, alleging among other things, that
)2 The CFI of Calamba lacks jurisdiction over the petition.
the late senator died intestate in Manila; that he was a resident of Cebu at
CFI denied the motion. It ruled in favor of Garcia and annulled the
the time of his death; and that he left real and personal properties in Cebu
proceedings held before the CFI. Thus, Fule elevated the matter to the SC
and Quezon City. Later Rosa Cayetano Cuenco also filed a petition, this
on appeal by certiorari.
time with the CFI of QC, for the probate of the deceased’s last will and

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

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Ronald Chua
In the settlement of the estate of a decedent, what is the applicability ₱ Jurisdiction already vested in a court may not be divested by the act of
of the provision on conferring concurrent and exclusive jurisdiction? private individual nor by the action of another court of the same rank.
In granting the court first taking cognizance of the case exclusive
jurisdiction over the same, said provision of the Rules of Court evidently LUZ MARQUEZ DE SANDOVAL vs. CFI Judge VICENTE
refers to cases triable before two or more courts with concurrent SANTIAGO, 83 PHIL 784 (1949)
jurisdiction. It could not possibly have intended to deprive a competent
court of the authority vested therein by law, merely because a similar case FACTS:
had been previously filed before a court to which jurisdiction is denied by Sandoval instituted a special proceeding in the CFI of Quezon
law, for the same would then be defeated by the will of one of the parties. Province for then probate of the will and codicil executed by the deceased
More specially, said provision refers mainly to non-resident decedents who Daniel Marquez in which she was designated as executrix. The will and
have properties in several provinces in the Philippines, for the settlement of codicil were allowed and the petitioner was appointed executrix in
their respective estates may undertaken before the court of first instance of accordance with the will but before the petitioner qualified as executrix
either one of said provinces, not only because said courts then have the 3 heirs instituted in the will made an extrajudicial partition of all the
concurrent jurisdiction — and, hence, the one first taking cognizance of the properties of he deceased and entered into the possession of their
case shall exclude the other courts — but, also, because the statement to respective share without the authority and approval of the court. One year
this effect in said section 1 of Rule 75 of the Rules of the Court immediately after the probate of the will and appointment of the petitioner as executrix
follows the last part of the next preceding sentence, which deals with non- the respondent judge required the petitioner to quality as such and file a
resident decedents, whose estate may settled the court of first instance of bind of P5,000. In response thereto the petitioner informed the
any province in which they have properties. (Eusebio vs. Eusebio) respondent judge that it was not necessary for her to qualify because the
heirs had already made an extrajudicial partition in accordance with the
In the Matter of the Intestate of the deceased Andres Eusebio. will as shown by the copy the copy of said partition which she submitted
EUGENIO EUSEBIO, vs. AMANDA EUSEBIO, JUAN EUSEBIO, to the court. In view of the answer of the petitioner the respondent judge
DELFIN EUSEBIO, VICENTE EUSEBIO, and CARLOS EUSEBIO, 593 ordered the executrix to qualify as such within 48 hours and declared the
PHIL 593 (1956) extrajudicial agreement of partition entered into by the heirs null and void,
on the ground that the probate proceedings having been commenced
FACTS: judicially it must also be terminated judicially. A motion for reconsideration
Eugenio Eusebio filed with the Court of First Instance of Rizal, a was filed by the petitioner and denied by the court hence, the filing of the
petition for his appointment as administrator of the estate of his father, present petition for certiorari.
Andres Eusebio, who died on November 28, 1952, residing, according to
said petition, in the City of Quezon. Amanda, Virginia, Juan, Delfin, Vicente ISSUE/S:
and Carlos, all surnamed Eusebio, objected to said petition, stating that they Whether Judge Sandoval exceeded his jurisdiction when he did
are illegitimate children of the deceased and that the latter was domiciled in not give to the extrajudicial partition the effect of terminating the testate
San Fernando, Pampanga, and praying, therefore, that the case be proceedings?
dismissed upon the ground that venue had been improperly filed. The court
overruled this objection and granted said petition. Hence, the case is before HELD:
us on appeal taken, from said order, by Amanda Eusebio, and her NO. The respondent Judge or CFI of Quezon Province, wherein
aforementioned sister and brothers. the deceased was residing at the time of his death, has acquired exclusive
jurisdiction to settle the testate estate of the deceased Daniel Marquez
ISSUE/S: and over the heirs and other person interested in the estate of the
Whether venue was properly laid in the CFI of Rizal. deceased from the moment the application for the probate of the
decedent's will was filed with the said court and the publication required
HELD: by law were made; and the heirs of the deceased Marquez could not
NO. In granting the court first taking cognizance of the case exclusive divest the Court of First Instance of its already acquired jurisdiction by the
jurisdiction over the same, said provision of the Rules of Court evidently mere fact of dividing extrajudicially the estate of the deceased among
refers to cases triable before two or more courts with concurrent themselves.
jurisdiction. It could not possibly have intended to deprive a competent An extrajudicial partition of the estate of a deceased by the
court of the authority vested therein by law, merely because a similar case heirs becomes a judicial partition after its approval by the court which had
had been previously filed before a court to which jurisdiction is denied by previously acquired jurisdiction of the estate by the filing of an application
law, for the same would then be defeated by the will of one of the parties. for the probate of the decedent's will; but as the testate proceeding is
More specially, said provision refers mainly to non-resident decedents who terminated in such case without the necessary publication of notices to
have properties in several provinces in the Philippines, for the settlement of creditors and other persons interested in the estate required in a required
their respective estates may undertaken before the court of first instance of in a regular judicial administration, the effect of such judicial partition
either one of said provinces, not only because said courts then have would be the same as if it had been effected extrajudicially without the
concurrent jurisdiction — and, hence, the one first taking cognizance of the intervention of the court under the provisions of section 1,of Rule 74, that
case shall exclude the other courts — but, also, because the statement to is, subject to the claims against the distributees by persons mentioned in
this effect in said section 1 of Rule 75 of the Rules of the Court immediately sections 4 and 5, of the same rule.
follows the last part of the next preceding sentence, which deals with non- The petition for certiorari is denied because the respondent
resident decedents, whose estate may settled the court of first instance of judge did not exceed his jurisdiction in not giving the deed of extrajudicial
any province in which they have properties. settlement or partition of the estate of the deceased the effect of
terminating the testate proceeding over which the court has acquired
Q Once the court assumes jurisdiction, can it be deprived of its exclusive jurisdiction since said partition was not submitted to said court
jurisdiction? for approval.
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 Q Is judgment or orders in special proceedings subject to
settle the testate estate of the deceased and over the heirs and other collateral attack?
person interested in the estate of the deceased from the moment the A NO. The validity of a judgment or order of a court entered in a
application for the probate of the decedent's will was filed with the said proceeding CANNOT be assailed collaterally unless the ground is for
court and the publication required by law were made; and the heirs of lack of jurisdiction of the court entering such judgment or order of
the deceased could not divest the Court of First Instance of its already fraud by the party sought to be charged with its procurement. The
acquired jurisdiction by the mere fact of dividing extrajudicially the estate remedy of the aggrieved party is to appeal from such order or
of the deceased among themselves. judgment, or if final, to apply for relief under Rule 38, which is also
applicable to special proceedings.
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action and the same judge having jurisdiction in the administration of
Q Can jurisdiction assumed by the court be contested or the estate shall take cognizance of the question raised, inasmuch as
questioned? when the day comes he will be called upon to make distribution and
adjudication of the property to the interested parties. (Benedicto vs.
A The jurisdiction assumed by a Court of First Instance, for the settlement
Javellana)
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
EDUARDA BENEDICTO, administratrix of the estate of
proceeding, except in an appeal from that court, in the original case, or
Maximino Jalandoni vs.JULIO JAVELLANA, 10 PHIL 197 (1908)
when the want of jurisdiction appears on the record. (Vda. De
Manzanero vs. CFI of Batangas)
FACTS:
Maximino Jalandoni passed away and left a will, which became the
REMEDIOS BONGON VIUDA DE MANZANERO vs. CFI OF
subject of probate proceedings. Maximo, the brother of the deceased, filed
BATANGAS, FORTUNATO, BARBARA, MARCELINA and FERNANDA,
a petition in writing with the probate court demanding the delivery of
surnamed MANZANERO, and FILIPINAS LIFE ASSURANCE CO., 61
₱985. this was the sum paid to the administrator, Javellana, after the
PHIL 850 (1935)
latter sold the property, which Maximo was supposed to inherit by legacy.
Maximo died and Eduardo Benedicto, the administrator of his estate,
FACTS:
represented him.
This is an original petition for certiorari filed by Remedios Bongon Viuda
Javellana filed an answer to the petition and alleged that it was not
de Manzanero against the CFI of Batangas and others, praying for the
proper to ask by means of a motion for relief of that Maximo Jalandoni
annulment, after due process, of the proceedings of said court in the case
claimed, but that a separate complaint should have been filed naming all
for the summary settlement of the estate left by deceased Esteban M.
the parties concerned in the estate.
Manzanero, for having acted without jurisdiction and committed therein
irregularities nullifying said proceedings.
ISSUE/S:
The following pertinent facts are necessary for the resolution of the
Whether a separate action should be filed instead of a motion or
question raised in this petition, to wit:
petition in writing.
)1 Esteban M. Manzanero, then assistant district engineer of the Province
of Albay, died in the provincial hospital of said province. His brother,
HELD:
Fortunato Manzanero, filed in the CFI of Batangas a sworn application
NO need for a separate action. Any incident which might arise in
alleging
connection with special proceedings, such as impugning the validity of a
)2 that his deceased brother, Esteban M. Manzanero, in life, had his legal
will, or objecting to the authentication thereof, and every demand or claim
residence in Santo Tomas, Batangas;
which any heir, legatee, or party in interest in a testate or intestate
)3 that he had left no property except a life insurance policy of P5,000 with
succession may make, must be acted upon and decided within the same
the Filipinas Life Assurance Co., of Manila;
special proceedings not in a separate action and the same judge having
)4 that his said deceased brother owed him the sum of P500;
jurisdiction in the administration of the estate shall take cognizance of the
)5 that he was survived by a widow, the herein petitioner, Remedios
question raised, inasmuch as when the day comes he will be called upon
Bongon, residing in Tabaco, Albay; and
to make distribution and adjudication of the property to the interested
)6 praying for a summary settlement of his estate.
parties.
When the application was called for hearing, only Fortunato Manzanero
appeared through his attorney, Epitacio Panganiban. As the vacation Judge,
Q Give examples of matters within the jurisdiction of probate
Eduardo Gutierrez David, was holding judicial session in Lucena, Tayabas,
courts
said applicant and his attorney requested the clerk of the CFI of Batangas to
A Matters within the jurisdiction of probate courts:
send the record to Lucena which he did.
1. questions as to who are the heirs of the decedent
In an order, Judge David required the insurance company to pay the
2. recognition of a natural child
heirs Manzanero the proceeds of the life insurance policy amounting to
3. validity of disinheritance effected by testator
₱4,276,03. having been informed that the proceeds of the policy have been
4. status of a woman of hereditary rights
distributed among the heirs of her deceased husband, widow filed a motion
5. validity of a waiver of hereditary rights
praying for the return and delivery of the money. The motion was not heard
6. maters incidental or collateral to the settlement and distribution
as the presiding judge of the CFI of Batangas refrained from trying the case.
of the estate, such as the determination of the status of each
heir and whether the property in the inventory is conjugal or
ISSUE/S:
exclusive property of the deceased spouse.
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,
Q Can a probate court in an intestate proceeding entertain
may be raised by means of the extraordinary remedy of certiorari.
petition for the probate of a will?
HELD: A The probate court had no jurisdiction to entertain the petition for the
NO. The jurisdiction assumed by a Court of First Instance, for the probate of the alleged will of Adriana Maloto in an intestate proceeding.
settlement of an estate, so far as it depends on the place of residence of a It is not proper to make a finding in an intestate estate proceeding that
person, or of the location of his estate, shall not be contested in a suit or the discovered will has been revoked. The more appropriate remedy of
proceeding, except in an appeal from that court, in the original case, or the petitioners in the premises stated in the petition is for petitioners to
when the want of jurisdiction appears on the record. When it does not initiate a separate proceeding for the probate of the alleged with in
appear on the records of the case that the said court lacks jurisdiction to question. (Casiano vs. Maloto)
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 TESTATE ESTATE OF THE LATE ADRIANO MALOTO: ALDINA
specially provided in such case. MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION
MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, and ASILO
Q In the exercise of probate jurisdiction, what matters may the DE MOLO vs. FELINO MALOTO and FELINO MALOTO,
court consider? 70 SCRA 232 (1977)
A Any incident which might arise in connection with special proceedings,
FACTS:
such as impugning the validity of a will, or objecting to the authentication
Adriana Maloto died on October 20, 1963 in Iloilo City, her place of
thereof, and every demand or claim which any heir, legatee, or party in
residence. Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto, and
interest in a testate or intestate succession may make, must be acted
Felino Maloto, niece and nephews, respectively, of Adriana Maloto, in the
upon and decided within the same special proceedings not in a separate
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belief that decedent died intestate, commenced on November 4, 1963 in the Part of the property given to Irene consisted largely of salt beds which
CFI of Iloilo an intestate proceeding. In the course of said intestate eventually became the subject of this controversy.
proceeding, said nieces and nephews executed an extrajudicial Partition of In 1971, Irene Cuizon executed a Deed of Sale with Reservation of
the estate of Adriana Maloto whereby they adjudicated said estate unto Usufruct involving the said salt beds in favor of Francisco, Rosita and
themselves in the proportion of one-fourth (1/4) share for each. The CFI of Purificacion, all surnamed Cuizon. At that time, Francisco and Rosita were
Iloilo approved the extrajudicial partition. minors and assisted by their mother, Rufina, only sister of Irene. However,
Subsequently, a document purporting to be the last with and testament the sale was not registered because the petitioners felt it was unnecessary
of Adriana Maloto was delivered to the Clerk of Court of the CFI of Iloilo. It due to the lifetime usufructuary rights of Irene. A decree of registration
appears that Aldina Maloto Casiano Consent Maloto, Panfilo Maloto, and and the corresponding OCT was issued only in 1976 in the name of
Felino Maloto are named as heirs but Maloto Casiano and Constancio Maloto Marciano Cuizon. In that same year, TCT covering the property in question
allegedly have shares in said with which are bigger, different and more was issued by the Register of Deeds to Irene Cuizon. The latter died in
valuable than what they obtained in the extrajudicial partition. The said will 1978.
also allegedly made dispositions to certain devisees and/or legatees, among In the extrajudicial settlement of the estate Rufina adjudicated to
whom being the Asilo de Molo, the Roman Catholic Church of Molo, and herself all the property of the decedent including the property in question.
Purificacion Miraflor. After the notice of the extrajudicial settlement was duly published in a
Aldina Maloto Casiano and Constancio Maloto filed a motion (1) for newspaper of general circulation, Rufina thereafter, executed a deed of
reconsideration; (2) annulment of the proceedings; and (3) for the Confirmation of Sale wherein she confirmed and ratified the deed of sale
allowance of the last will and testament of Adriana Maloto. The Asilo de executed by the late Irene and renounced and waived whatever rights,
Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor also filed interest, and participation she may have in the property in question in
petitions for the allowance of the will of Adriana Maloto. The presiding judge favor of the petitioners. The deed was duly registered with the Registry of
denied the motions. Deeds and annotated at the back of TCT. Subsequently, a new TCT was
The petitioners filed a petition for certiorari and mandamus with the issued in favor of the petitioners.
Supreme Court. This Court dismissed the petition in a resolution on the Domingo Antigua, allegedly selected by the 17 heirs of Irene to act
ground that the more appropriate remedy of petitioners in the premises as administrator of the estate of the latter, filed an inventory of said
stated in the petition is for petitioners to initiate a separate proceeding for estate. He included the property in question which was being administered
the probate of the alleged will in question. Thereupon, petitioners by Juan Arche, one of the petitioners. The court ruled in favour of Antigua
commenced a separate special proceeding for the probate of the alleged last for his possession and ownership of the property in behalf of the heirs.
will and testament of Adriana. Panfilo and Felino filed an opposition with a The petitioners thereafter brought this case to the SC.
motion to dismiss alleging among others, that the will sought to be probated The petitioners contend (1) that that the respondent court, as a
had been destroyed and revoked by the testatrix. court handling only the intestate proceedings, had neither the authority to
The probate court dismissed the petition for probate of the will on the adjudicate controverted rights nor to divest them of their possession and
basis of the finding in the intestate proceeding that the alleged will sought ownership of the property in question and hand over the same to the
to be probated had been destroyed and revoked by the testatrix. Hence, the administrator; (2) that the proper remedy of the respondent administrator
petition for probate is now barred by the order in the intestate proceeding. 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
ISSUE/S: the court of origin before filing the present petition; and (2) the deed of
Whether the petition for probate is barred by the finding of the probate sale of December 29, 1971 lost its efficacy upon the rendition of judgment
court in the intestate proceedings that the alleged will now being sought to and issuance of the decree in favor of Irene Cuizon.
be probated had been destroyed and revoked by the testatrix.
ISSUE/S:
HELD: Whether a probate court has jurisdiction over parcels of land already
NO. The probate court had no jurisdiction to entertain the petition for the covered by a Transfer Certificate of Title issued in favor of owners who are
probate of the alleged will of Adriana Maloto in an intestate proceeding. It is not parties to the intestate proceedings if the said parcels have been
not proper to make a finding in an intestate estate proceeding that the included in the inventory of properties of the estate prepared by the
discovered will has been revoked. The more appropriate remedy of the administrator.
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. HELD:
NO. It is a well-settled rule that a probate court or one in charge of
Q Can a probate court adjudicate or determine title or proceedings whether testate or intestate cannot adjudicate or determine
ownership to properties claimed to be part of the estate title to properties claimed to be a part of the estate and which are equally
equally claimed to belong to outside parties? (claimed to belong to outside parties. All that the said court could do as
A It is a well-settled rule that a probate court or one in charge of 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
proceedings whether testate or intestate cannot adjudicate or determine
administrator. If there is no dispute, well and good; but if there is, then
title to properties claimed to be a part of the estate and which are
the parties, the administrator, and the opposing parties have to resort to
equally (claimed to belong to outside parties. All that the said court could
an ordinary action for a final determination of the conflicting claims of title
do as regards said properties is to determine whether they should or
because the probate court cannot do so.
should not be included in the inventory or list of properties to be
The property in question being in the possession of third parties and
administered by the administrator. If there is no dispute, well and good;
more important, covered by a transfer certificate of title issued in the
but if there is, then the parties, the administrator, and the opposing
name of such third parties, the respondent court should have denied the
parties have to resort to an ordinary action for a final determination of
motion of the respondent administrator and excluded the property in
the conflicting claims of title because the probate court cannot do so.
question from the inventory of the property of the estate. It had no
(Cuizon vs. Ramolete)
authority to deprive such third persons of their possession and ownership
of the property. Respondent court was clearly without jurisdiction to issue
FRANCISCO CUIZON, ROSITA CUIZON, PURIFICATION C. GUIDO
the order of June 27, 1979. Thus, it was unnecessary for the petitioners to
married to TEODORO GUIDO, and JUAN ARCHE vs. CFI Judge
first apply for relief with the intestate court.
JOSE R. RAMOLETE, DOMINGO L. ANTIGUA and SEGUNDO
ZAMBO, 129 SCRA 495 (1984)
Q Is there any exception to this rule?
FACTS: A While as a general rule, question as to title to property cannot be
In 1970, pending the registration of several parcels of land, Mariano passed upon on testate or intestate proceedings," except where one of
Cuizon distributed his property between his two children, Rufina and Irene. the parties prays merely for the inclusion or exclusion from the

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inventory of the property, in which case the probate court may pass definitely pass judgment thereon; and that with the consent of the parties,
provisionally upon the question without prejudice to its final matters affecting property under judicial administration may be taken
determination in a separate action. However, we have also held that cognizance of by the court in the course of intestate proceeding, provided
when the parties interested are all heirs of the deceased, it is optional to interests of third persons are not prejudiced. The jurisdiction to try
them to submit to the probate court a question as to title to property, controversies between heirs of the deceased regarding the ownership of
and when so submitted, said probate court may definitely pass judgment properties alleged to belong to his estate is vested in probate courts. This
thereon; and that with the consent of the parties, matters affecting is so because the purpose of the administration proceeding is the
property under judicial administration may be taken cognizance of by the liquidation of the estate and distribution of the residue among the heirs
court in the course of intestate proceeding, provided interests of third and legatees.
persons are not prejudiced (Bernardo vs. CA) The matter in controversy is the question of ownership of certain of
the properties involved — whether they belong to the conjugal partnership
DEOGRACIAS BERNARDO, executor and the instituted heirs, or to the husband exclusively. This is a matter properly within the
namely: ARMANDO CAPILI and ARTURO BERNARDO, ET AL., vs. jurisdiction of the probate court which necessarily has to liquidate the
CA and THE HEIRS OF THE LATE HERMOGENA REYES, namely: conjugal partnership in order to determine the estate of the decedent
FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL., which is to be distributed among his heirs who are all parties to the
7 SCRA 367 (1963) proceedings, including, of course, the widow, now represented because of
her death, by her heirs who have been substituted upon petition of the
FACTS: executor himself and who have appeared voluntarily. There are no third
Eusebio Capili died and a testate proceeding for the settlement of his parties whose rights may be affected. It is true that the heirs of the
estate was instituted in the CFI of Bulacan by Hermogena Reyes, his widow. deceased widow are not heirs of the testator-husband, but the widow is,
His will was admitted to probate, disposing of his properties in favor of his in addition to her own right to the conjugal property. And it is this right
widow; his cousins Armando, Ursula, and Buenaventura, all surnamed Capili; that is being sought to be enforced by her substitutes. Therefore, the
and Arturo, Deogracias and Eduardo, all surnamed Bernardo. Hermogena claim that is being asserted is one belonging to an heir to the testator
Reyes subsequently died. Upon petition of Deogracias Bernardo, executor of and, consequently, it complies with the requirement of the exception that
the estate of the deceased Eusebio Capili, she was substituted by her the parties interested (the petitioners and the widow, represented by
collateral relatives and intestate heirs, namely, Marcos, Vicente, Francisco dents) are all heirs claiming title under the testator.
and Dominga, all surnamed Reyes; and Jose, Constancia, Raymunda and
Elena, all surnamed Isidoro. Exclusionary Rule
The executor filed a project of partition in the testate proceeding in General Rule : The court first taking cognizance of
accordance with the terms of the will, adjudicating the estate of Eusebio
Capili among the testamentary heirs with the exception of Hermogena
the settlement of the estate of the decedent shall
Reyes, whose share was alloted to her collateral relatives. These collateral exercise jurisdiction to the exclusion of all other courts.
relatives filed an opposition to the executor's project of partition and The probate courts acquires jurisdiction from
submitted a counter-project of partition of their own, claiming 1/2 of the the moment the petition for the settlement of estate is
properties mentioned in the will of the deceased Eusebio Capili on the theory filed with said court. It cannot be divested of such
that they belonged not to the latter alone but to the conjugal partnership of jurisdiction by the subsequent acts of the parties as by
the spouses. entering into extrajudicial partition of the estate.
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 Exception, Estoppel by Laches
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 Remedy if Venue is Improperly Laid
question the validity of the donation; and (3) that even assuming that they General Rule : ORDINARY APPEAL not certiorari or
could question the validity of the donation, the same must be litigated not in mandamus
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
Exception, If want of jurisdiction appears on the
character to the properties, aside from the legal presumption laid down in record of the case (Rules 73
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 Sec. 2. Where estate settled upon dissolution of marriage. -
and therefore could not validly dispose of it in his will. When the marriage is dissolved by the death of the husband or wife, the
The probate court declared the donation as void. Said court also community property shall be inventoried, administered, and liquidated,
disapproved both projects of partition and ordered Bernardo to file another and the debts thereof paid, in the testate or intestate proceedings of the
one. On appeal, petitioners contend that the probate court had no deceased spouse. If both spouses have died, the conjugal partnership
jurisdiction to take cognizance of the claim of the legal heirs of Hermogena shall be liquidated in the testate or intestate proceedings of either.
involving title to the property mentioned in the will.
Related Family Code Provisions:
ISSUE/S:
Whether the probate court, having limited and special jurisdiction, had Art. 103. Upon the termination of the marriage by
generally the power to adjudicate the questions as to whether the properties
involved belong to the conjugal partnership of the spouses or the husband death, the community property shall be liquidated in
exclusively. the same proceeding for the settlement of the estate
of the deceased.
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 If no judicial settlement proceeding is
parties prays merely for the inclusion or exclusion from the instituted, the surviving spouse shall liquidate the
inventory of the property, in which case the probate court may pass community property either judicially or extra-
provisionally upon the question without prejudice to its final determination in
a separate action. However, when the parties interested are all heirs of the judicially within six months from the death of the
deceased, it is optional to them to submit to the probate court a question as deceased spouse. If upon the lapse of the six months
to title to property, and when so submitted, said probate court may
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period, no liquidation is made, any disposition or appraisal and sale of property of the conjugal
encumbrance involving the community property of the partnership, and other matters which are not
terminated marriage shall be void. expressly determined in this Chapter. (187a)

Should the surviving spouse contract a Art. 133. From the common mass of property
subsequent marriage without compliance with the support shall be given to the surviving spouse and to
foregoing requirements, a mandatory regime of the children during the liquidation of the inventoried
complete separation of property shall govern the property and until what belongs to them is delivered;
property relations of the subsequent marriage. (n) but from this shall be deducted that amount received
for support which exceeds the fruits or rents
Art. 104. Whenever the liquidation of the community pertaining to them. (188a)
properties of two or more marriages contracted by the
same person before the effectivity of this Code is • In the settlement proceedings of the estate of the
carried out simultaneously, the respective capital, deceased spouse, the entire conjugal partnership
fruits and income of each community shall be property of the marriage and not just the one-half
determined upon such proof as may be considered portion belonging to the deceased, is under
according to the rules of evidence. In case of doubt as administration.
to which community the existing properties belong, Q When both spouses have died, where should the conjugal
the same shall be divided between the different partnership be liquidated?
communities in proportion to the capital and duration A Act No. 3176 only amend s the former law in the sense that upon the
of each. (189a) death of any of the spouses the community property shall be liquidated
in the testamentary or intestate proceedings of the deceased spouse.
Art. 130. Upon the termination of the marriage by 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
death, the conjugal partnership property shall be having been commenced upon his death in 1895 until his widow
liquidated in the same proceeding for the settlement Florencia Arcega also died in 1933, and the testamentary proceedings
of the estate of the deceased. 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
If no judicial settlement proceeding is testamentary proceedings of the deceased wife excludes any other
instituted, the surviving spouse shall liquidate the proceeding aimed at the same purpose. (Del Rosario vs. Del Rosario)
conjugal partnership property either judicially or extra-
JULIA DEL ROSARIO, ET AL. vs. ANTONIO DEL ROSARIO, ET
judicially within six months from the death of the AL., 67 PHIL 652 (1939)
deceased spouse. If upon the lapse of the six-month
period no liquidation is made, any disposition or FACTS:
encumbrance involving the conjugal partnership Ramon del Rosario and Florencia Arcega were husband and wife.
Ramon died in 1895. In his will, he left Florencia the properties of the
property of the terminated marriage shall be void.
conjugal partnership valued at ₱19,000. after his death, Florencia
administered these properties and with the products thereof, acquired
Should the surviving spouse contract a others. Moreover, after Ramon’s death, his testate was not commenced
subsequent marriage without compliance with the and the conjugal properties were not liquidated until Florencia’s death in
1933, after which the latter’s testamentary proceedings were initiated and
foregoing requirements, a mandatory regime of
now in progress.
complete separation of property shall govern the The plaintiffs bring this action to recover their share not only in the
property relations of the subsequent marriage. (n) 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
Art. 131. Whenever the liquidation of the conjugal
is another action pending between the same parties and for the same
partnership properties of two or more marriages cause of action; that there is a defect or party plaintiffs and party
contracted by the same person before the effectivity defendants, and that the complaint does not allege facts sufficient to
of this Code is carried out simultaneously, the constitute a cause of action.

respective capital, fruits and income of each ISSUE/S:


partnership shall be determined upon such proof as Whether the conjugal properties of the spouses could be liquidated in
may be considered according to the rules of evidence. a separate action despite the pendency of another action between the
same parties and for the same cause of action.
In case of doubt as to which partnership the existing
properties belong, the same shall be divided between HELD:
the different partnerships in proportion to the capital 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
and duration of each. (189a) sense that upon the death of any of the spouses the community property
shall be liquidated in the testamentary or intestate proceedings of the
Art. 132. The Rules of Court on the administration of deceased spouse. But whatever law might be applicable, and even
estates of deceased persons shall be observed in the assuming that it was that prior to Act No. 3176, the intestate of Ramon

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del Rosario not having been commenced upon his death in 1895 until his Angeles and Tomasa got married and during their marriage, Tomasa
widow Florencia Arcega also died in 1933, and the testamentary proceedings acquired legal title to the tract here in question. Angeles and Tomasa
of Florencia Arcega having been subsequently initiated, wherein, among executed a document wherein they pledged this property to Natividad in
other things, the liquidation of her conjugal properties with the deceased consideration of a loan. Angeles died after the execution of the document.
Ramon del Rosario should be made, the pendency of these testamentary Tomasa followed thereafter. Natividad then took possession of the land,
proceedings of the deceased wife excludes any other proceeding aimed at allegedly to wait for one of the heirs to pay the debt due to him.
the same purpose. At any rate, the plaintiffs have a right to intervene in Alfonso, as administrator of the estate of Angeles, claims that the
these proceedings as parties interested in the liquidation and partition of the property belonged to the conjugal partnership during the life of the
conjugal properties of the deceased spouses Ramon del Rosario and spouses and that this partnership having been dissolved by the death of
Florencia Arcega among their heirs. Angeles, its affairs should by law be settled by representatives of the
deceased and that he is such representative who seeks to recover the
In the matter of the will of the deceased Paulino Diancin. land.
TEOPISTA DOLAR, OLIMPIA, RITA, JOSEFINA and ROSARIO Natividad claims that the property was not the property of the
DIANCIN, vs. ROMAN CATHOLIC BISHOP OF JARO, conjugal partnership, but was the separate property of Tomasa bought by
68 PHIL 727 1939) her separate money. Hence, Alfonso has no right to recover said property.

FACTS: ISSUE/S:
Paulino Diacin married Margarita Doctura with whom he had 5 children Whether the land in question was conjugal.
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 HELD:
he had 4 children. Paulino acquired certain properties during his first CONJUGAL. There is no evidence to show what source the money
marriage and still others during his second. He left a will before he died came from which was used to buy the land. Under our laws, the conjugal
wherein he sets out all his properties and distributes them among his widow partnership ceases upon the dissolution of the marriage. Hence, upon
Teopista Dolar and his heirs by both marriages. He also left a legacy of the death of one of the spouses, and before the property of
P8,000 to be spent for the altar of the church under construction in the the deceased can be adjudicated to his or her heirs, there
Municipality of Dumangas, ordering that this be taken from the fruits of all must be a liquidation of the conjugal partnership and this shall
the properties before they are partitioned among his heirs be made in the proceedings for the settlement of the estate of said
2 projects of partition were submitted. The first was disapproved deceased, or in the absence thereof, in the proceedings for the settlement
because of the objection of several of the heirs. The second was also of the estate of the surviving spouse, upon the latter’s demise.
disapproved because of the objection of the representative of the church of
Dumangas. The court then ordered the administratrix, Teopista Dolar, to Q Must liquidation be made in a special proceeding for the
take possession of the properties and deliver the legacy to the church. From settlement of the estate of the deceased?
this resolution Dolar and the heirs of the second marriage appealed. 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
ISSUE/S:
of the spouses, may be made in an ordinary action instituted for
Whether all the heirs must agree before a partition is to be effected.
that purpose. (Cruz vs. De Jesus)
HELD:
DONATO CRUZ, ET AL. vs. TEOFILO DE JESUS, ET AL.,
YES. Unless the widow Teopista Dolar, the heirs of the deceased by his
52 PHIL 870 (1929)
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 FACTS:
procedure for the partition of the decedent’s estate is as follows: Donato Cruz’ wife died. Donato then filed an action for partition
)1 All the debts and administration expenses shall first be paid. of their conjugal estate. Such action involved properties which were in the
)2 The conjugal properties of the first and second marriage shall be possession of Donato long before his wife died. Further, the estate had no
liquidated to determine the corresponding share of each wife in the debts. Donato then filed a motion to amend his complaint from “partition”
conjugal property. to “liquidation and partition.” Such was denied by the lower court holding
)3 The properties of the deceased both from the first and second marriage that the proper action was that of either testate or intestate proceedings.
shall be partitioned among the heirs.
)4 The legacy to the church must be taken out of the free portion, without ISSUE/S:
impairment of the legitimes of the forced heirs Whether an action lies for the liquidation and partition of the
)5 The legal usufruct of the widow must be taken from the third available conjugal property.
for betterment
)6 Legitimes shall be distributed among the forced heirs HELD:
)7 The remainder of the free portion is to be divided among the forced YES. When there are no debts to pay, the liquidation and partition of
heirs in equal parts. 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
Q Upon the death of one of the spouses, where should the purpose.
liquidation of the conjugal partnership be made? Who is Hence, the law establishes 2 methods of liquidating the property of a
charged with such liquidation? conjugal partnership. If the marriage is dissolved by death of one of the
spouses:
A When a conjugal partnership is dissolved by the death of the husband (or
₱ In/testate proceeding according to whether the deceased died with or
wife) it must be liquidated in the proceedings charged with such
without a will
liquidation under the direction of the court and may maintain an action
₱ Ordinary proceeding for liquidation and partition.
against a third person to recover possession of property belonging to the
Since the complaint for partition alleges that there are no debts to
dissolved conjugal partnership. (Alfonso vs. Natividad)
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
HERMENEGILDO ALFONSO vs. PEDRO NATIVIDAD, ET AL.,
partnership, said liquidation is implied in the action for partition.
6 PHIL 240 (1906)
Q In liquidating the conjugal partnership, what is the basis in
FACTS:
making an inventory of the conjugal property?

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A In liquidating a conjugal partnership, an inventory of the actual property Calimon, and that Macaria E. Mariano had voluntarily and validly signed
the documents mentioned in her cross-claim.
possessed by the spouses at the time of the dissolution must be made. It
Deciding the controversy, court reached the conclusion that the three
is error to determine the amount to be divided by adding up the profits
documents were valid and binding, and that as a consequence the
which has been made in each year of its continuance and saying that the
Calimon sisters were entitled to continue possessing the lands and
result is that amount. (De la Rama vs. De la Rama)
properties assigned to them by virtue of said Exhibit. The cross-
defendants were absolved from the cross-complaint.
AGUEDA BENEDICTO DE LA RAMA vs. ESTEBAN DE LA RAMA,
Macaria now claims that it was error for the lower court to adjudge
7 PHIL 745 (1907)
the controversy upon the strength of the above mentioned exhibits,
without previously requiring an inventory and liquidation of the conjugal
FACTS:
properties of the deceased Leon Calimon and the cross-plaintiff.
Esteban dela Rama claims that upon the dissolution of the
conjugal property, he is entitled to ₱81,387.76 based on the income of
ISSUE/S:
profits earned by the partnership prior to the dissolution.
Whether the lower court should have required an inventory and
liquidation of the conjugal properties before adjudging the controversy.
ISSUE/S:
Whether income or profits earned by the partnership is used in
HELD:
determining the total conjugal assets for purposes of dissolution of the
NO. It was unnecessary to prepare the inventory and make the
conjugal partnership.
liquidation because the parties interested, i.e., the heirs of Leon Calimon
and his widow had already reached a compromise by means of Exhibit 1-
HELD:
Mariano. And supposing that all those lots were community property, still
NO. The civil code provides that upon dissolution of the conjugal
the said exhibit governs the rights of the parties. A similar documents of
partnership an inventory on all conjugal properties shall at once be made.
renunciation was held valid and binding in Antonio vs. Aloc. And under the
After deductions (dowries, debts, etc.) then the remainder is to be divided
provision of article 1418 of the Civil Code, inventory shall not be required
equally between the spouses.
if, after the partnership has been dissolved, one of the spouses, or his or
The conjugal property which is to be eventually divided is determined
her successors shall have renounced its effects.
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
Q Upon dissolution of the conjugal partnership by reason of
possessed by them at such dissolution after making the deduction and
the death of one spouse, from whom may conjugal debts be
payments aforesaid.
recovered?
In liquidating a conjugal partnership, an inventory of the actual
A The husband, having ceased to be the administrator of the conjugal
property possessed by the spouses at the time of the dissolution
property had with his wife, upon the latter’s demise, no complaint can
must be made. It is error to determine the amount to be divided by
be brought against him in an ordinary action for the recovery of the
adding up the profits which had been made in each year of its continuance
debt chargeable against the conjugal property and the action of this
and saying that the result is that amount.
purpose should have been instituted in the testamentary proceeding of
the deceased wife in the manner provided by law. (Calma vs. Toledo)
Q Is inventory and liquidation always necessary?
A NO. When the interested parties have already reached a compromise,
MARIA CALMA vs. ESPERANZA TAÑEDO and BARTOLOME
whereby for valuable consideration, the widow renounced in favor of the
QUIZON, Deputy Sheriff of Tarlac, 66 PHIL 594 (1936)
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
FACTS:
to prepare an inventory of the conjugal properties and make a
The spouses Eulalio Calma and Fausta Macasaquit were the owners of the
liquidation. (VDA. DE VILLACORTE vs. MARIANO)
property described in the complaint, being their conjugal property. They
were also indebted to Esperanza Tañedo, chargeable against the conjugal
CONCEPCION VDA. DE VILLACORTE, ET AL. vs. MACARIA E.
property, in the sums of P948.34 and P247, with interest thereon at 10
MARIANO, 89 PHIL 342 (1951)
per cent per annum. On October 10, 1933, Fausta Macasaquit died leaving
a will wherein she appointed her daughter, Maria Calma, as administratrix
FACTS: of her properties. Upon the commencement of the corresponding probate
During his lifetime Leon Calimon married thrice. His first marriage with proceedings in the Court of First Instance of Tarlac, the said daughter,
Adriana Carpio gave him 4 daughters named Canuta, Tranquilina, Maria and Maria Calma, was appointed judicial administratrix of the properties of the
Enriqueta. A widower in 1898, the next year he married Venancia Inducil, deceased.
who lived only 10 months thereafter, leaving him no child. She had, While these probate proceedings of the deceased Fausta Macasaquit
however, a son by previous marriage: Tiburcio Villacorte. In July 1902 Leon were pending, Esperanza Tanedo filed a complaint against Eulalio Calma
Calimon took a third wife, Macaria E. Mariano. She bore him no offspring; for the recovery of the sums of P948.34 and P247. The CFI of Tarlac
but survived him when he passed away. rendered judgment for the payment of this sum. In the execution of this
The widow and daughter of Tiburcio Villacorte filed a complaint seeking judgment, despite the third party claim filed by Fausta Macasaquit, the
to recover 38 parcels of land allegedly in the possession of Canuta Calimon property described in the complaint was sold by the sheriff.
and her three sisters and of Macaria E. Mariano. Plaintiffs averred that the Maria Calma, as administratrix of the estate of Fausta Macasaquit,
properties belonged to their predecessor in interest, Venancia Inducil. now brings this action and asks that the sale made by the sheriff of the
Defendants, in 2 separate answers, claimed that the lots were owned property described in the complaint be annulled and that the estate of
exclusively by Leon Calimon. Fausta Macasaquit be declared the sole and absolute owner thereof.
10 months afterwards Macaria E. Mariano amended her answer to
assert that all the realties had been acquired during her coverture with Leon ISSUE/S:
Calimon, and also to interpose a crossclaim against her co-defendants, the Whether the complaint for recovery of the sums was correctly filed
heirs of Leon Calimon by the first marriage, demanding the recognition of against Eulalio Calma
her rights as surviving spouse, to such conjugal partnership property. In this
connection she affirmed that thru deceit and intimidation she had signed HELD:
three documents assigning to her co-defendants (cross-defendants) her NO to both to interpreting the applicable law, Act no. 3176. In the
lawful participation in the conjugal assets in exchange for certain properties case at bar, it can be gathered that the testamentary proceeding have
alloted to her. The cross-defendants countered with the assertion that some been instituted the liquidation and partition of the conjugal property by
of the properties belonged to them, and all the rest to their father Leon 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
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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
A In appraising the real property of the conjugal partnership, it is NOT
the purchase price, but the market, or default thereof, the
can be brought against him in an ordinary action for the recovery of the
assessed value at the time of the liquidation that must be
debt chargeable against the conjugal property. The action for this purpose
taken into account. (Prado vs. Natividad)
should have been instituted in the testamentary proceedings of the
deceased wife in the manner provided by law, filing the claim with the
JOSE M. PRADO vs. CASIMIRO NATIVIDAD, 47 PHIL 776 (1925)
committee on claims and approval.

PAZ Y. OCAMPO, JOSEFA Y. OCAMPO, ISIDRO Y. OCAMPO, GIL Casimiro Natividad and Maria Prado contracted marriage with Casimiro
Y. OCAMPO, MAURO Y. OCAMPO, and VICENTE Y. OCAMPO vs. bringing to the marriage some real properties which he had received from
CONRADO POTENCIANO, VICTOR POTENCIANO and LOURDES his mother as his future share in her inheritance. Maria Prado did not
POTENCIANO, 89 PHIL 160 (1951) 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
FACTS:
treatment.
Edilberto Ocampo, married to Paz Yatco, executed a deed
Jose Maria Prado, in his capacity as administrator of the estate of
purporting to convey to his relative, Conrado Potenciano, and the latter's
Maria Prado, filed a complaint in the CFI of Camarines Sur against
wife, Rufina Reyes, by way of sale with pacto de retro for P2,5000, a town a
Casimiro, wherein he alleged that the latter had refused to make an
lot with a house standing thereon. On that same day, Ocampo signed
liquidation of the estate of the conjugal partnership and prayed the court
another document, making it appear that, for an annual rental of P300
for judgment, decreeing the liquidation of said partnership, adjudicating to
equivalent to 12% of the purchase price, the vendees were leasing to him
the plaintiff administrator one-half of the conjugal property with its
the house and lot for the duration of the redemption period.
products.
Several extensions were granted. The last extension granted was
Casimiro Natividad alleged that the estate of the conjugal partnership
for year from February 3, 1937, and the period having elapsed without the
constituted between him and his deceased wife Maria Prado had already
repurchase having been made, Potenciano filed with the register of deeds of
been liquidated, no conjugal property having been found to exist, but a
Laguna an affidavit for the consolidation of title, on the strength which the
loss of P10,000.
register of deeds issued TCT in the name of Potenciano and his wife. This,
The lower court rendered judgment, holding that no residue existed
however, did not close the avenue for settlement. With Edilberto Ocampo
which should be divided between the husband and the heirs, and
and Rufina Reyes already dead, Potenciano gave Paz Yatco an option to
dismissing the complaint. Jose Maria Prado took an appeal on the basis of
repurchase the property for P2,500 within 5 years, and a lease thereon for
the alleged error committed by the court by taking into account the value
the same period of time at annual rental of P300 which, as may again be
of the property of the conjugal partnership at the time of the acquisition
noted, is equivalent to 12% of the purchase price.
thereof, and not of its liquidation and the fact of its having taken into
On February 7, 1944, Paz Yatco sought to exercise the option by
consideration the supposed debt of P17,428.98.
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
Q How should the value of the estate of the decedent be
rejected, deposited the money in court and brought an action in her own
computed?
name and as judicial administratrix of the estate of her deceased husband to
A In the appraisal of the real property of the conjugal partnership, it is
compel Potenciano to accept it and to have the title to the property
not the purchase, but the market, or in default thereof, the assessed,
reinstated in her name and that of her husband.
value at the time of the liquidation that must be taken into account.
Intervening in the case, Potenciano's children, Victor and Lourdes,
Based on the evidence presented and taking into account the assessed
filed a cross-complaint, alleging that the option to purchase granted by their
value of the property of the conjugal partnership at the time of the
father to plaintiff on February 28, 1939, was null and void as to the share of
liquidation, the total value thereof amounts to P10,853.40.
their deceased mother Rufina Reyes in the property in litigation, which share
passed to them by right of inheritance, the intervenors, were exercising the
Q Who determines the sufficiency of the evidence of the value
right of redemption accorded by law to co-owners of property held in
of the conjugal property?
common
A The admission in evidence without objection, of the inventory
The Court of First Instance, after trial, upheld these allegations
purporting to set forth the amount and value of certain property, DOES
and gave judgment in favor of the children of Edilberto Ocampo and Paz
NOT BIND the trial court to accept as true the contents of such
Yatco, who had substituted the latter after her death.
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
ISSUE/S:
value has been submitted. In such case, the document is admitted for
Whether CA erred in ruling that the husband had authority to
what is worth as evidence, and it should not be held as conclusive of
enter into such agreement as administrator of the conjugal estate.
the truth of its contents if other evidence of record disclosed its
inaccuracies and its failure correctly to set forth the value and quantity
HELD:
of the properties in question.
The Court of Appeals erred in supposing that the surviving spouse had
such authority as de facto administrator of the conjugal estate. Section 2,
AGUEDA BENEDICTO DE LA RAMA vs. ESTEBAN DE LA RAMA, 25
Rule 75, of the Rules of Court provides that when the marriage is dissolved
PHIL 437 (1913)
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 FACTS:
was nothing more than mere extension of time for the payment of the This case arose out of the decision of the US SC in the case that
mortgagee debt. It follows from the foregoing that at the time Paz Yatco plaintiff instituted against her husband charging him with adultery and
made the tender of payment and consigned the necessary amount in court, prayed for a divorce, the division of the conjugal property, and alimony
the said contract of loan with security was still in effect, and as the tender pendente lite. Court ruled against the defendant by granting a divorce,
was made in legal currency, the tender and consignation must be held to dissolving the conjugal partnership, and allowing plaintiff the sum of
produce their legal effect, which is that of relieving the debtor from liability. P81,042.76 as her share of the conjugal property, and P3,200 as alimony.
Hence, since ownership in the property never passed to their parents, these The defendant appealed to this court, which ruled that as both had
appellants (intervenors) acquired nothing. committed adultery, neither was entitled to a divorce. Plaintiff appealed to
the US SC which reversed the ruling of the Phil SC.
Q What is the basis in the appraisal of real property? 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

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Ronald Chua
the conjugal property was not, therefore, passed upon. Hence the US SC the husband's death, several thousands pesos, all the property of the
decision should be read to mean that the CFI should dispose of this said partnership
assignment of error not touched upon by the US SC decision. )6 that the property, with the exception of the said sum of 2,500 pesos
The 6th assignment of error deals with the fixing the amount of the half Mexican currency, was under the control and in the legal possession
of said alleged conjugal property at P81,042.75, without having examined of the Benita Gatchalian, Petrona Clavo, Emeteria Cristobal, Leoncia
the necessary antecedents and data, and, moreover, without having taken Belen and Gabriela Lopez, and
into account the losses suffered and the debts contracted by the firm. In )7 that Gatchalian was, with the exception of such property, insolvent;
disposing of this issue, the disregarded inventory submitted modified its )8 that a demand having repeatedly been made upon the defendants for
original judgment and awarded only ₱58,543.37. From this decision arose the friendly delivery by them of the said property, they categorically
as both the plaintiff and defendant took exception to the above ruling. refused to deliver the same
Plaintiff contends that the original judgment of the CFI should be Defendants denied absolutely each and all of the facts alleged
affirmed. Defendant contends that the court erred in the findings as to the against them in the complaint. As a special defense, Gatchalian added that
procedure adopted in liquidating the partnership assets for the CFI Dionisio Fulgencio, on his marriage with her, brought as property of his
disregarded the inventory submitted by the defendant. 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
ISSUE/S: deceased, brought 9,000 pesos in cash and 3,000 pesos in goods; that the
Whether the CFI erred in its valuation of the conjugal property and the profits obtained by the widow Gatchalian, in the business in which she
procedure it adopted in liquidating the partnership assets. 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
HELD: property designated in the complaint, was acquired by the defendant
NO. The admission in evidence without objection, of an inventory Gatchalian with her own funds, except those which were the subject
purporting to set forth the amount and value of certain property does not matter of current accounts, yet unsettled, with various commercial houses
bind the trial court to accept as true contents of such inventory where other in Manila.
evidence as to its amount and value has been submitted. In such case, the The lower court then required Benita to surrender possession of the
document is admitted for what is worth as evidence, and is not to be held as properties subject of the complaint.
conclusive of the truth of its contents if there is other evidence in the
records disclosing its inaccuracy. ISSUE/S:
Whether the wife’s paraphernal property must be included in the
Q When can a claim for segregation of a spouse’s separate settlement of the husband’s estate
property be made?
A When the wife’s own property or that brought by her to the marriage, of HELD:
the nature of paraphernalia, has been included among the property of YES. It has not been conclusively proven that the property claimed
the conjugal partnership, a claim or demand for its segregation on the by the administratrix is paraphernalia and belongs exclusively to the
part of its legitimate owner can only be properly made after the making defendant Benita Gatchalian. As such they are deemed to be conjugal
of the inventory of the property which forms the assets of the partnership property, liable for the debts of the conjugal partnership, and
partnership dissolved by the death of the husband if it be not therefore, the administratrix has a right to be placed in possession of the
conclusively proven that certain property is paraphernalia, or that it same for the purpose of its inventory in the special proceedings, without
belongs exclusively to a widow, the same must be deemed to be conjugal prejudice to the rights of the widow Benita Gatchalian in relation to her
partnership property and liable for the debts and obligations of the own property or to that of the nature of paraphernalia, for, once the
partnership, saving always the right of the said widow to have her own inventory of the property of the intestate estate has been
personal property of every kind excluded. (Fulgencio vs. Gachalian) made, the latter will have the same opportunity to claim the
exclusion of the property belonging to her exclusively and that
JOSEFA FULGENCIO & FERNANDO FULGENCIO vs. BENITA of the nature of paraphernalia.
GATCHALIAN, ET AL., 21 PHIL 252 (1912)
Sec. 3. Process. - In the exercise of probate jurisdiction, Court of First
FACTS: Instance may issue warrants and processes necessary to compel the
Josefa Fulgencio, the administratrix of the intestate estate of Dionisio attendance of witnesses or to carry into effect their orders and judgments,
Fulgencio, filed with the CFI of Pangasinan a written complaint against and all other powers granted them by law. If a person does not perform
Benita Gatchalian, Petrona Clavo, Emeteria Cristobal, Leoncia Belen, and an order of judgment rendered by a court in the exercise of its probate
Gabriela Lopez alleging that jurisdiction, it may issue a warrant for the apprehension and imprisonment
)1 by virtue of letters of administration, issued in her behalf, she entered of such person until he performs such order or judgment, or is released.
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
Q Can probate courts issue writs of execution?
Fulgencio;
A Generally, NO because said courts orders usually refer to the
)2 that Benita Gatchalian was appointed administratrix, conjointly with the
adjudication of claims against the estate which the executor or
plaintiff, of the estate of the said deceased, the required letters of
administrator may satisfy without need of executory processes. The
administration having been issued to her, although Gatchalian tendered
rules, however, specify the instance wherein the probate court
her resignation as administratrix, which was accepted by the court,
may issue a writ of execution, to wit:
wherefore the plaintiff was the sole party upon whom it was incumbent
1. to satisfy the contributive shares of the devisees, legatees and
by law to fulfill the said office;
heirs in the possession of the decedent’s assets (Section 6, Rule
)3 that the defendants Petrona, Emeteria, Leoncia and Gabriela were then
88)
incharge of a part of the estate of the deceased and were under the
2. to enforce payment of the expenses of partition (Section 3, Rule
care and direction of the defendant Gatchalian;
90); and
)4 that Dionisio Fulgencio, legally married, in second wedlock, the Benita
3. to satisfy the courts when a person is cited for examination in
Gatchalian, with whom he did not have any surviving or posthumous
probate proceedings (Section 13, Rule 142)
child, and left only one legitimate son, by his first marriage, named
Under the rule of inclusion unius est exclusion alterious, these would be
Fernando Fulgencio, on marrying Gatchalian, brought the sum of 2,500
the only instances when the probate court can issue a writ of execution.
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
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Sec. 4. Presumption of death. - For purposes of settlement of his FACTS:
estate, a person shall be presumed dead if absent and unheard from for Lourdes G. Lukban contracted marriage with Francisco Chuidian. 17
the periods fixed in the Civil Code. But if such person proves to be alive, days after their marriage, Francisco left Lourdes after a violent quarrel and
he shall be entitled to the balance of his estate after payment of all his since then he has not been heard from despite diligent search made by
debts. The balance may be recovered by motion in the same proceeding. 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
Q Which can be presumed dead? liability under the law.
A Under the New Civil Code: Thus, a petition was filed in the CFI of Rizal praying for a declaration
Art. 390. After an absence of seven years, it being unknown whether that Petitioner is a widow of her husband Francisco Chuidian who is
or not the absentee still lives, he shall be presumed dead for all purposes, presumed to be dead and has no legal impediment to contract a
except for those of succession. subsequent marriage. The Solicitor General opposed the petition on the
The absentee shall not be presumed dead for the purpose of opening ground that the same is not authorized by law. After Petitioner had
his succession till after an absence of ten years. If he disappeared after the presented her evidence, the court sustained the opposition and dismissed
age of seventy-five years, an absence of five years shall be sufficient in the petition. Hence this appeal.
order that his succession may be opened. (n)
ISSUE/S:
Art. 391. The following shall be presumed dead for all purposes, Whether the presumption of death can be the subject of judicial
including the division of the estate among the heirs: pronouncement.
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 HELD:
years since the loss of the vessel or aeroplane; NO. While it is true that a special proceeding is “an application or
2. A person in the armed forces who has taken part in war, and has proceeding to establish the status or right of a party, or a particular fact”;
been missing for four years; but, as already said, that remedy can be invoked if the purpose is to seek
3. A person who has been in danger of death under other the declaration of death of the husband. A petition for judicial declaration
circumstances and his existence has not been known for four that petitioner’s husband is presumed to be dead cannot be entertained
years. (n) 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
Art. 392. If the absentee appears, or without appearing his existence status of petitioner as widow since this matter must of necessity depend
is proved, he shall recover his property in the condition in which it may be upon the fact of death of the husband. The philosophy behind this ruling
found, and the price of any property that may have been alienated or the is that a judicial pronouncement to that effect, even if final and executory,
property acquired therewith; but he cannot claim either fruits or rents. (194) 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
No Independent Action For Declaration of declaration, if it is the only question or matter involved in a case, or upon
Presumption of Death which a complement court has to pass.
• The disputable presumption established by the rules
Q What is the reason behind the presumption?
of evidence that a person not heard from in seven
A The presumption is an arbitrary one rendered on the grounds of public
years is dead, may arise and be invoked either in an policy in order that the rights depending on the life of one long absent
action or in a special proceeding, which is tried or and unheard of may be settled. The presumption is based on the
heard by, and submitted for decision to, a competent general accepted fact that a normal person will not, if alive, remain
court. Independently of such as action or special away from home for 7 years without communicating with family or
proceeding, the presumption of death cannot be friends.
invoked nor can it be made the subject of an action or
Q At what time does the period start to run?
special proceeding.
A The period must elapse in order to give rise to the presumption of
• There is no need for an independent action for death. Thus, the period runs from the time when the absent person is
Declaration of Presumptive Death for purposes of last known to have been alive.
Succession.
RULE 74
Q …? SUMMARY SETTLEMENT OF ESTATES
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
Sec. 1. Extrajudicial settlement by agreement between heirs.
already said, that remedy can be invoked if the purpose is to seek the
- If the decedent left no will and no debts and the heirs are all of age,
declaration of death of the husband. A petition for judicial
or the minors are represented by their judicial or legal representatives
declaration that petitioner’s husband is presumed to be dead
duly authorized for the purpose, the parties may, without securing
cannot be entertained because it is not authorized by law, and
letters of administration, divide the estate among themselves as they
if such declaration cannot be made in a special proceeding much less can
see fit by means of a public instrument filed in the office of the register
the court determine the status of petitioner as widow since this matter
of deeds, and should they disagree, they may do so in an ordinary
must of necessity depend upon the fact of death of the husband. The
action of partition. If there is only one heir, he may adjudicate to
philosophy behind this ruling is that a judicial pronouncement to that
himself the entire estate by means of an affidavit filed in the office of
effect, even if final and executory, would still be a prima facie
the register of deeds. The parties to an extrajudicial settlement,
presumption only. It is still disputable. It is for that reason that it cannot
whether by public instrument or by stipulation in a pending action for
be the subject of a judicial pronouncement of declaration, if it is the only
partition, or the sole heir who adjudicates the entire estate to himself
question or matter involved in a case, or upon which a complement court
by means of an affidavit shall file, simultaneously with and as a
has to pass. (Lukban vs. Republic)
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
In the Matter of the Declaration of the Civil Status of: LOURDES
of deeds, a bond with the said register of deeds, in an amount
G. LUKBAN vs. REPUBLIC OF THE PHILIPPINES,
equivalent to the value of the personal property involved as certified to
98 PHIL. 574 (1956)
under oath by the parties concerned and conditioned upon the payment

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

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Such third party will be put on notice that the property he is buying is left no will or in case he had left one, should he fail to name an executor
subject to an encumbrance of two years. therein (Utulo v. Vda de Garcia)

Q Is it permissible to have an oral partition? Q Is the rule subject to any exception?


A Sec 1 Rule 74 of the Rules does not provide for this scenario as it seems A Secs. 1 and 2 of Rule 74 of the Rules of Court
to require either an affidavit/public instrument to be filed in the Register 1. First exception: When all the heirs are of lawful age and there
of Deeds. But as in all contracts required by law to be in writing, partial are no debts due from the estate, they may agree in writing to
execution of an oral contract removes the same from the operation of partition the property without instituting the judicial
the Statute of Frauds. administration or applying for the appointment of an
administrator.
Q What constitutes “Partial Execution”? 2. Second exception: If the property left does not exceed ten
A That there must be possession coupled with exercise of ownership. thousand pesos (in the Utulo case, P6K) the heirs may apply to
the competent court after the required publications to proceed
Q Why is a bond required? with summary partition and, after paying all the known
A For the payment of any just claim that may be filed under Sec 4 Rule 74 obligations to partition all the property constituting the
of the Rules of Court. inheritance among themselves pursuant to law without
instituting the judicial administration and the appointment of an
Q Who is required to file this bond? administrator. GR: Estate is Administered
A
EX: Extrajudicial Settlement
1. Parties to an Extrajudicial settlement In other words:
(a) By public instrument or
and Summary Settlement 10k
(1) when extrajudicial settlement is proper and
(b) Stipulation in a pending action for partition (2) in case of summary of settlement of estates of small value
2. Sole heir who adjudicates to himself the entire estate by means of
an affidavit Utulo v. Vda de Garcia
They are required to file the bond SIMULTANEOUSLY with and as a
CONDITION PRECEDENT to the filing of the public instrument FACTS:
Juan Garcia Sanchez died intestate and was survived by his
Q Why is it required that the parties concerned file an affidavit wife, Leona and three children, one of whom was named Luz Garcia. An
wherein they shall certify under oath the value of the action was filed in the CFI Tarlac by Leona for the administration of her
personal property? husband’s property.
A To enable the Register of Deeds to determine the sufficiency of the bond.
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.

Q Why must the amount of the bond be equivalent to the value Pablo instituted an action for the judicial administration of Luz’s
of the personal property? property which consisted merely of her share in her father’s intestate
A For the protection of any heir who may be unlawfully deprived. To estate. To this, Leona filed an opposition. She alleged that since Luz left
answer for any claim which may arise subsequent to the extrajudicial no indebtedness, there was no reason for the said judicial administration
settlement. but she stated that should the court grant the administration of the
property, she should be appointed the administratrix thereof in as much as
Q What is meant by an “Ordinary Action of Partition”? she had the better right than the applicant.
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 Nevertheless, the lower court granted the judicial
at any time the partition of the thing owned in common insofar as his administration. Hence this appeal.
share is concerned” And as provided in Article 496 “partition be made
by…judicial proceedings” and “shall be governed by the Rules of Court” ISSUE:
W/N the judicial administration of Luz’s property is proper.
Q Are the heirs compelled by the Rules to enter into an
extrajudicial settlement if all the requisites are present? HELD:
A No. The Rules state that the “parties may …divide the estate among NO. The Code of Civil Procedure provides: “ If no executor is
themselves” Hence, the rule is permissive and not mandatory. 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
Q What is meant by “Stipulation in a Pending Action”? person dies leaving property in the Philippines, his property should be
A That there is already a pending action for settlement before the courts judicially administered and the competent court should appoint a qualified
yet the parties nonetheless agree to enter into an extrajudicial administrator, in the order established in the section, in case the deceased
settlement. left no will, or in case he had left one and he fails to name an executor
therein.
Q What is the rule with respect to the administration of the
estate of the decedent? This rule however, is subject to exceptions pursuant to the CCP.
A The Rules of court says “If According to the first, when all the heirs are of lawful age and there are
• no executor is named in the will or no debts due from the estate, they may agree in writing to partition the
• if a person dies intestate property without instituting the judicial administration or applying for the
administration shall be granted …” appointment of an administrator. According to the second, if the property
left does not exceed six thousand pesos, the heirs may apply to the
This provision enunciates the general rule that when a person dies leaving competent court after the required publications to proceed with summary
property in the Philippines, his property should be JUDICIALLY partition and, after paying all the known obligations to partition all the
ADMINISTERED and the competent court should appoint a qualified property constituting the inheritance among themselves pursuant to law
administrator in the order established in the section in case the deceased without instituting the judicial administration and the appointment of an
administrator.

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

ISSUE: HELD:
Is writing the act that confers legality upon the agreement? 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
HELD: case, there is no necessity for the institution of special proceedings and
On general principle, independent and in spite of the Statute of the appointment of an administrator for the settlement of the estate
Frauds, courts of equity have enforced oral partition when it has been because the same can be effected either extrajudicially or through an
completely or partly performed. ordinary action for partition.
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
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In further application of the this rule to the case at bar, The subsequent While Sec 1 allows the heirs to divide the estate among
bare allegation that the estate has an existing debt from third persons themselves as they may see fit, or to resort to an ordinary action of
without specifying the creditor and other details in regard thereto cannot be partition, it does not compel them to do so if they have good reasons to
considered a concise statement to constitute a cause of action nor does the take a different course of action. Said section is not mandatory or
unverified statement that there are other properties not included in the deed compulsory as may be gleaned from the word may . If the intention were
of extrajudicial partition in the possession of one of the heirs, justify the otherwise, the framer of the rule would have employed the word shall as
institution of administration proceedings because such questions can be was done in other provisions that are mandatory in character. Note that
litigated in an ordinary action for partition 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
Q If the estate had no debts or obligations, are they precluded heirs.
from instituting administration proceedings?
A No. Sec.1 Rule 74 of the ROC does not preclude the heirs from instituting Having decided to institute administration proceedings instead of
administration proceedings even if the estate had no debts or obligation resorting to the less expensive modes of settlement of estate (i.e.
if they do not desire to resort for good reason to an ordinary action for extrajudicial settlement or ordinary action for partition, the heirs may not
partition. be rebuffed in the exercise of their discretion granted under Sec 1 Rule 74
While Sec 1 allows the heirs to divide the estate among themselves as merely on the ground that the expenses usually common in administration
they may see fit, or to resort to an ordinary action of partition, it does not proceedings may deplete the funds of the estate. The resultant delay and
compel them to do so if they have good reasons to take a different course of extraordinary expenses incurred thereafter are consequences which must
action. Said section is not mandatory or compulsory as may be gleaned from be deemed to have been voluntarily assumed by the heirs themselves so
the word may . If the intention were otherwise, the framer of the rule would that they may not in the future be heard to complain on these matters.
have employed the word shall as was done in other provisions that are Besides, the truth or veracity of Aurelio’s claim as to the alleged existence
mandatory in character. Note that the word may is used not only once bit in of other properties of the deceased aside from the lot in question can be
the whole section which indicates an intention to leave the matter entirely to more adequately ascertained in administration proceedings rather than in
the discretion of the heirs. (Arcillas v. Montejo) any other action.

Arcillas v. Montejo Q Is the partition entered into by the parties final?


A Yes. The division or partition should be considered as final settlement
FACTS: of the estate of the deceased and no administrator can thereafter be
Eustaquio Arcillas died intestate. His children filed a petition for appointed to take charge of and administer the estate.
the issuance of letters of administration in favor of Aurelio Arcillas Unless and until it is shown that there were debts existing against the
preparatory to the formal settlement of Eustaquio’s estate. 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
Geronimo Arcillas, one of the heirs, opposed the issuance of the letters of destroy the partition made. It simply furnished ground for the application
administration arguing that in as much as Lot 276 was the only property left by the creditor for the appointment of an administrator or for the payment
by the deceased and the deceased had no debts, the petition for of his credit as provided in Section 4 Rule 74.
administration was improper. Further, Section 1, Rule 74 provides that “it shall be presumed that the
Aurelio countered that there are still other properties of the estate decedent left no debts if no creditor files a petition for letters of
besides the lot and that the administration proceedings could not be administration within two years after the death of the decedent.”
dispensed with since Relief of
(1) there was no unanimity among the heirs for extrajudicial partition and Q What is the remedy of the aggrieved party after an Judgement;
(2) that some of the heirs had been unduly deprived of their participation in extrajudicial settlement is approved by the court? Annulment
the estate. 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
The lower court denied the petition for issuance of LOA on three limitations. The action to annul a deed of extrajudicial settlement on
grounds: the ground of fraud must be filed within four years from discovery of
1) to obviate the necessity of spending uselessly which would only the fraud.
deplete the funds of the estate
2) to avoid unnecessary delay in partition and Sec. 2. Summary settlement of estates of small value. -
3) by virtue of Sec 1 Rule 74 of the ROC which provides that “if the Whenever the gross value of the estate of a deceased person, whether
decedent left no will and no debts and the heirs and legatees are he died testate or intestate, does not exceed ten thousand pesos, and
all of age, the parties may without securing LOA divide the estate that fact is made to appear to the Court of First Instance having
among themselves as they see fit and should they disagree, they jurisdiction of the estate by the petition of an interested person and
may do so in an ordinary action for partition. upon hearing, which shall be held not less than (1) month nor more
On petition for certiorari filed by Aurelio, the respondents Geronimo and the than three (3) months from the date of the last publication of a notice
CFI judge claim that in as much as the aforementioned minimum which shall be published once a week for three (3) consecutive weeks
requirements of Sec 1 Rule 74 obtain, there is no necessity for the in a newspaper of general circulation in the province, and after such
institution of special proceedings and the appointment of an administrator other notice to interested persons as the court may direct, the court
for it is superfluous and unnecessary. In other words, they view the above may proceed summarily, without the appointment of an executor or
section to be mandatory upon the heirs so long as the deceased left no will administrator, and without delay, to grant, if proper, allowance of the
nor any pending obligations to be paid and the heirs are all of legal age. 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
ISSUE: after the payment of such debts of the estate as the court shall then
W/N the heirs are precluded from instituting administration find to be due; and such persons, in their own right, if they are of
proceedings if the estate has no debts and obligations and the deceased left lawful age and legal capacity, or by their guardians or trustees legally
no will and they are all of legal age. appointed and qualified, if otherwise, shall thereupon be entitled to
receive and enter into the possession of the portions of the estate so
HELD: awarded to them respectively. The court shall make such order as may
NO. Sec.1 Rule 74 of the ROC does not preclude the heirs from be just respecting the costs of the proceedings, and all orders and
instituting administration proceedings even if the estate had no debts or judgments made or rendered in the course thereof shall be recorded in
obligation if they do not desire to resort for good reason to an ordinary the office of the clerk, and the order of partition or award, if it involves
action for partition. real estate, shall be recorded in the proper register's office.

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Note From Herrera: The MTC & MCTC, BP 129 as
amended, now has probate jurisdiction where the value Q What happens if no appeal is taken from the order of
of the estate does not exceed P100,000 or P200,000 in summary settlement?
A Where no appeal is taken from the order of summary settlement which
Metro Manila. 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,
Q What is the nature of a summary settlement? it will no longer be disturbed if there is no showing that the procedural
A In a summary manner, the estate of the deceased is valued, his debts, if requirements laid down under Sec 2, Rule 74 have not been followed.
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 Q What is the remedy of a person unduly deprived of his
single order as far as this is practicable, without the appointment of any lawful participation in the estate.
administrator or executor. This is done with the least possible delay
though not necessarily in one hearing, A The summary distribution of the estate of a deceased person ordered
by the competent court is final and definitive, unless within two
Q What are the requisites for a valid summary settlement of an years after the distribution of the estate it appears that there are
estate of small value? outstanding debts or that an heir or other person has been unduly
A 10:00 BiHis Papa! deprived of his lawful participation from the estate in which case any
1. The gross value of the estate of a deceased person does not creditor heir of interested person may compel the judicial distribution
exceed ten thousand pesos and partition of said estate in the ordinary manner.
2. That there are no existing debts fakenews
3. That a bond has been duly filed Sec. 3. Bond to be filed by distributees. - The court, before
4. That a proper hearing is held allowing a partition in accordance with the provisions of the preceding
5. Publication of a notice once a week for three consecutive weeks in section, may require the distributees, if property other than real is to be
a newspaper of general circulation. 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
Q When is a summary settlement proper? the next succeeding section.
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? 300k/400k (MNL)
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
Q Compare the bond required under Sec 1 of the rule for
intestate. Where the gross value of the estate does not exceed
extrajudicial settlement with the bond required under this
P20,000 (Sec 19.4 Sec 33.1) This has resulted in investing said inferior
section for summary settlement.
courts with exclusive jurisdiction in summary settlement of estate of
A
small value since the maximum jurisdictional limit on the gross estate
EXTRAJUDICIAL SUMMARY
involved in said proceeding is P10,000. This is notwithstanding the fact
Amount of the bond is equal to the Determined by the court
that the ROC promulgated in 1986 still provides that it be filed with the
value of the personal property as
RTC BP 129 enacted in 1980 is a substantive law which prevails over the
established in the instrument of
ROC which is procedural in nature.
adjudication
Q What are the steps for the summary settlement of estates of In both cases, bond cannot replace the lien on real property
small value?
A The following are the steps for the summary settlement of estates of Q When is bond required under Sec 3 Rule 74?
small value:
1. Determine the gross value of the estate. If the gross value of the
A Although this section requires the filing of a bond in connection with
summary administration and distribution of the estate of the decedent,
estate is less than ten thousand pesos, file a petition with the
the same may be required only where personal property is
MTC
distributed and not where realty is the subject of the partition.
2. A hearing is set to determine the existence of debts. If the court
finds that there are, it orders the payment of debts.
Q Why is a bond required for personalty and not for realty?
3. If the deceased died with a will, it should be presented for
A Lien as recorded, is a sufficient security for any claim which may be
probate; and
filed under Sec 4 Rule 74.
4. Distribute the estate in accordance with the will or the rules on
intestacy as the case may be.
Sec. 4. Liability of distributees and estate. - If it shall appear at
Q What happens after the court issues an order granting the any time within two (2) years after the settlement and distribution of an
allowance of the will? estate in accordance with the provisions of either of the first two
A The distributees in their own right if they are of age or by their guardians sections of this rule, that an heir or other person has been unduly
or trustees legally appointed and qualified “if otherwise, shall be entitled deprived of his lawful participation in the estate, such heir or such other
to receive and enter into possession of the position awarded to them. person may compel the settlement of the estate in the courts in the
manner hereinafter provided for the purpose of satisfying such lawful
Note: The probate court is not the best forum for the resolution of adverse participation. And if within the same time of two (2) years, it shall
claims of ownership of any property ostensibly belonging to the decedent’s appear that there are debts outstanding against the estate which have
estate. not been paid, or that an heir or other person has been unduly deprived
It is not proper to delay the summary settlement of a deceased person of his lawful participation payable in money, the court having
just because an heir or third person claims that certain properties do not jurisdiction of the estate may, by order for that purpose, after hearing,
belong to the estate but to him. Such claim must be ventilated in an settle the amount of such debts or lawful participation and order how
independent action and the probate court should proceed to the distribution much and in what manner each distributee shall contribute in the
of the estate if there are no legal obstacles to it, for after all such payment thereof, and may issue execution, if circumstances require,
distribution must always be subject to the results of the suit. The remedy of against the bond provided in the preceding section or against the real
the claimant is to have the proper annotation of his lis pendens entered. estate belonging to the deceased, or both. Such bond and such real
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Ronald Chua plaintiff no prescription
estate shall remain charged with a liability to creditors, heirs, or other in possession of the land to be reconveyed. – The
persons for the full period of two (2) years after such distribution, registered owners were never in possession of the
notwithstanding any transfers of real estate that may have been made. disputed property. Instead, it was the legal owners
of the land who had always been in possession of
When Settlement of Estates in the Courts may be the same. Thus, the Court allowed the action for
Compelled: reconveyance to prosper despite the lapse of 10
(1) If there is an undue deprivation of lawful UDU years from the issuance of title to the land. Reason:
participation in the estate; registration proceedings could not be used as a
(2) The existence of debts against the estate; or shield for fraud enriching a person at the expense of
(3) If there is an undue deprivation of lawful the other.
participation payable in money.
Q What is the rationale behind the rule that the property shall
Note: be subject to an encumbrance of two years?
The bar against distributes from objecting to an A 2 years is believed to be a reasonable time for creditors and other
extrajudicial partition after the expiration of two years is interested partied to be on notice of the extrajudicial settlement.
applicable only to the ff.: Q Must the lien be annotated in the certificate of title?
(1) To persons who have participated or taken part or A Yes. The lien must be annotated in the certificate of title for the
had notice of the extrajudicial partition; an protection of unpaid creditors and heirs unlawfully deprived of their
(2) When all the persons or heirs of the decedent have participation. Otherwise, a purchaser in good faith of the property may
taken part in the extrajudicial settlement. defeat the lien constituted for their protection.

Remedies of the Aggrieved Parties After BR³A Q What is the effectivity of the lien created by this section in
favor of unpaid creditors or heirs unduly deprived of their
Settlement of the Estate: lawful participation?
(1) Within 2 years – claim against the bond or the real
estate or both
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
(2) Rescission in case of preterition of compulsory heir instance of the transferee of the land involved. (Carreon v. Agcaoili)
in partition tainted with bad faith
(3) Reconveyance of real property Carreon v. Agcaoili
(4) Action to annul a deed of extrajudicial settlement
on the ground of fraud which should be filed within 4 FACTS:
years from the discovery of fraud Bonifacio Carreon and Celerina Dauag acquired a homestead
land during their marriage. Carreon died. Celerina executed an affidavit
(5) Petition for Relief on the ground of FAME (fraud,
wherein she declared that she was the only heiress of her husband and at
accident, mistake, excusable negligence) 60 days after the same time, adjudicating to herself alone the said land. A TCT was
the petitioner learns of the judgment, final order or issued in her name but a lien to the effect that her title was subject to
other proceeding to be set aside, and not more than 6 Sec4, Rule 74 of the ROC was annotated thereon.
months after such judgment or final order was entered.
(6) Reopening by intervention within anytime before Celerina thereafter, borrowed P1,200 from PNB guaranteed by a
rendition of judgment, as long as it is within the 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
reglementary period of 2 years
P3,000 (Sale was approved by the Secretary of Agriculture and Nat.
(7) New action to annul settlement within Resource even though the land acquired was a homestead) The loan from
reglementary period of 2 years. the bank was then paid, the mortgage released and the Deed of Absolute
Sale was executed and registered in favor of Agcaoili.
Important Doctrines:
• An heir deprived of his share may file an action for Subsequently, the children of Celerina with the deceased
husband filed a complaint against Spouses Agacaoili seeking to gave the
reconveyance based on an implied or constructive
deed of sale executed by their mother declared as one of mortgage and to
trust which prescribes 10 years from the date of recover ½ pro indiviso of said land. Celerina also filed a motion to
registration or date of issuance of certificate of title or intervene but the same was dismissed by the trial court.
from actual discovery of fraud if the registration was The trial court held that plaintiff’s claim has no legal basis.
made in bad faith.
• Where the estate has been summarily settled, the On appeal, plaintiff-appellants contend that defendant appellees
unpaid creditor may, within 2 years, file a motion in were that there existed a trust relationship between them and the
appellants and that such being the case, the action against appellees is
court wherein such summary settlement was had, for
imprescriptible.
the payment of his credit.
• After the lapse of 2 years, an ordinary action may be ISSUE:
instituted against the distributes within the statute of W/N the plaintiffs have a cause of action based on the
limitations BUT NOT against the bond. annotated statement that the land was subject to Sec4 of Rule 74
• Such lien cannot be discharged nor the annotation be
HELD:
cancelled within the 2 year period even if the
NO. The lien created by virtue of said annotation is effective only for a
distributees offer to post a bond to answer for period of two years. From the time the TCT was issued to Celerina to the
contingent claims from which lien is established. moment the deed of sale in favor of Agcaoili was issued and registered,
• Exception to prescription of actions: There is one more than two years had elapsed. The right to have such lien cancelled
instance when prescription cannot be invoked in an became vested on appellee Agcaoili and that the same had become
action for reconveyance. That is, when the plaintiff is
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Ronald Chua
functus officio. The SC found no reason to apply the proposition that he is Mcmicking v Sy Conbieng
deemed to be holding the land in trust for the children of Celerina Dauag.
FACTS:
Q When is the two year effectivity period reckoned? Margarita Jose died and Palanca was appointed administrator of
A It is reckoned from the date and time inscribed is placed 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
Q Must you go to court to have the annotation in the certificate to the heirs and legatees the properties of the estate.
of title cancelled after the lapse of two years? Later, Palanca was removed as administrator of the estate of
A NO. The lien annotated therein becomes functus officio that is, it is Jose and McMicking replaced him. It was learned that Palanca was
already a performed function. 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.
Q May the lien be substituted by a bond? A claim was thereafter made against Barretto as surety of
A No. Such lien cannot be discharged nor the annotation cancelled within Velasco.
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. ISSUE:
W/N the estate of Barretto is liable.
Q What is the remedy if fraud is alleged?
HELD:
A If annulment of the Extrajudicial settlement is sought on the ground of NO. Doroteo Velasco for whom the deceased Barretto was
fraud, such action must be filed within 4 years from the discovery surety would not have been liable himself had this action been
of the fraud. Such discovery is deemed to have taken place when the commenced against him so that if the principal is not liable, the surety
instrument was filed with the Register of deeds and new certificates of cannot be.
title was issued, for such registration constitutes constructive notice to An administrator who has been duly appointed and has taken
the whole world. possession of the property of his decedent and who upon proper
proceedings and order of court turns over the property to the owners
Q What is the effect of discovery of unpaid debts after the thereof after a partition among them in accordance with Sec 596 and 597
extrajudicial settlement has been effected? of the Code of Civil Procedure is approved performs his full duty and is
A The partition provided for in these sections is binding and valid even discharged from any liability.
though not all of the debts outstanding were paid before the partition
was made. The principal Velasco is not liable because the discovery of an
The discovery of an unpaid obligation after partition does not destroy the unpaid obligation (in this case, the claim on Velasco as surety for Palanca)
partition. It simply furnishes ground for the application of the creditor for the after an extrajudicial partition does not destroy the partition applied for by
appointment of an administrator (McMiking v. Sy Conbieng) Velasco. The partition is still binding and valid. It simply furnishes ground
for the application by the creditor for the appointment of an administrator.
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 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. Sec. 5. Period for claim of minor or incapacitated person. - If
(McMiking v. Sy Conbieng) 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
Q Is administration the only remedy? or mentally incapacitated, or is in prison or outside the Philippines, he
A Even after the discovery of a debt subsequent to a partition, the may present his claim within one (1) year after such disability is
partitioning persons may prevent any administration whatever by paying removed
the debt discovered, thereby preserving the partition intact in all its parts.
(McMiking v. Sy Conbieng) Q What does Sec 5 provide?
A It provides the exception to the rule that unpaid creditors and heirs
Q What is the effect of an extrajudicial partition after an unlawfully deprived of their participation in the estate have two years
administrator had already been appointed? within which to file a claim against the estate.
A Where after the appointment of an administrator, the due making of the A (a) minor, (b) mentally incapacitated person, (c) prison or
inventory of the property and the taking possession thereof by such (d) one outside the Philippines may still file a claim within one
administrator and agreement is made between the owners thereof, the year after the disability is removed.
delivery of the property to such partitioning owners by such However, this is subject to the proviso that the disability existed during
administrator, under proper proceedings and order of court and after the two-year period. Moreover, the disability must exist at the expiration
compliance with the provisions of such sections, is in effect, a discharge of the two-year period.
of such administrator as to all future obligations and responsibilities in
relation to said property. RULE 75
PRODUCTION OF WILL, ALLOWANCE OF WILL NECESSARY
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 Sec. 1. Allowances necessary; Conclusive as to execution. - No
portion thereof in possession of the partitioning parties may be placed in will shall pass either real or personal estate unless it is proved and allowed
administration in the event of the discovery of unpaid debts, it would not in the proper court. Subject to the right of appeal, such allowance of the
be the same estate represented by the prior administrator and he would will shall be conclusive as to its due execution.
not be the administrator of the new estate by virtue of his appointment in Nature of Probate Proceedings
the old. (1) In Rem – binding on the whole world
It would be necessary to appoint upon proper application and notice, (2) Mandatory – No will shall pass either real or
another administrator for the purposes set forth in said sections (McMiking personal property unless it is proved and allowed in
v. Sy Conbieng)
the proper court.

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Ronald Chua
(3) Imprecriptible – because of the public policy to appeal in special proceedings from an order or judgment xxx where
obey the will of the testator such an order of judgment (a) allows or disallows a will” (Fernandez
(4) The doctrine of estoppel does not apply vs. Dimagiba)

DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES vs.


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

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

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court having jurisdiction or to the executor named in the will. A violation A When a will has been duly executed and delivered to the one named as
of this duty is made punishable by Section 4, Rule 75. 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
Q To whom is the delivery of the will made? personal obligation.
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. Sec. 4. Custodian and executor subject to fine for neglect. - A
person who neglects any of the duties required in the two last preceding
Q What if the custodian is also the executor named in the will. sections without excuse satisfactory to the court shall be fined not
Does he still have to produce the will? exceeding two thousand pesos.
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 Q When can the fine provided for in this section be imposed?
and to discourage their concealment. Thus, the custodian of a will must
comply with the statute even though he is named as the executor.
A The act penalized in this section is a special statutory offense which
must be prosecuted upon complaint or information as other criminal
Q Suppose the custodian refuses or fails to deliver the will offenses created by law (US vs. Guimco)
within the reglamentary period -- ₱ In this regard, it is worthy to restate what has been previously
A Under Section 2 and 3 of this Rule, the fact that a will is not presented to discussed. Mere possession of a will does not constitute custody of the
the court after the 20- day period specified therein does not prevent it instrument within the meaning of these rules. In order to hold one
from being probated. On the contrary, Rule 76, Section 1 provides that liable as custodian for failure to produce a will after the decedent’s
“[a]ny executor, devisee or legatee named in a will, or in any other death, it must be at least shown that there was a baliment.
person interested in the estate may, at any time after the death of the ₱ Atty. Gesmundo: Sectiton 4 is a usurpation of judicial powers. It is not
testator, petition the court having jurisdiction to have the will allowed, within legislative powers to impose such sanctions.
whether the same be in his possession or not, or is lost or destroyed.” In
such a case, probate will proceed through secondary evidence. THE UNITED STATES vs. CHIU GUIMCO, 36 PHIL 917 (1917)

Q Is probate of a will mandatory? FACTS:


A YES. The presentation of the will for probate is mandatory. The law The testator, Joaquin Cruz had for many years, resided in the
enjoins the probate of the will and policy requires it, because unless the municipality of Gingoog, Province of Misamis, where he had lived as a
will is probated and notice thereof be given to the whole world, the right Chinese merchant and had amassed a considerable estate, worth possibly
of a person to dispose of his property by will may be rendered nugatory. forty or fifty thousand pesos. In 1898, Joaquin Cruz visited China and was
Absent legatees and devisees, or such of them as may have no there married to a Chinese woman, Uy Cuan, and by her had one child. In
knowledge of the will, could be cheated of their inheritance through the 1902, after his return from China, he was married in Gingoog to a Filipina
collusion of some of the heirs who might agree to partition the estate woman named Maria Villafranca. In the early part of the year 1910,
among themselves to the exclusion of others. Even if the decedent left Joaquin Cruz again visited China, leaving his brother, Chiu Guimco, the
no debts and nobody raises any questions as to the authenticity and due accused, in charge of his property and business in Gingoog as agent or
execution of the will, none of the heirs may sue for the partition of the attorney in fact (apoderado). While absent on this visit to China Joaquin
estate in accordance with a will without first securing its allowance or Cruz died. Before his departure from the Philippine Islands he had
probate by the court first because the law expressly provides that “no executed a will before Anastacio Servillon, notary public, in which Chiu
will shall pass either real or personal estate unless it is proved and Guimco and Co-Iden were named as executors. In August 1910, Chiu
allowed in the proper court,” and second, because the probate of a will, Guimco and Co-Iden appeared before Anastacio Servillo; and at their
which is a proceeding in rem, cannot be dispensed with and substituted request the latter drew up a petition for the probate of the will. This
by any other proceeding, judicial or extrajudicial. 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
Q Can probate proceedings be barred by Statue of Limitations subsequently died.
or estoppel by laches? In the meantime, Chui Guimco, as attorney- in- fact and manager of
A Reason and precedent reject the applicability of the Statute of Limitations the estate of his deceased brother, entered into an arrangement with
to probate proceedings because the same are established not exclusively Maria Villafranca whereby, in consideration of the conveyance of certain
in the interest of the heirs but primarily for the protection of the property to her, she relinquished in favor of the other persons interested
testator’s expressed wishes; which are entitled to respect as a in the estate of the deceased all her claims in respect to the same
consequence of his ownership and rights of disposition. Inasmuch as the property. When the Chinese wife arrived in Misamis, Guimco made the
probate of will is required by public policy, the State could not have claim that he and his brother had been partners in the business which had
intended to defeat the same by applying thereto the Statute of been conducted originally by Joaquin Cruz. He also asserted that another
Limitations. 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
Note: Failure to attach original of will to petition not document which was then drawn up, it was agreed that Uy Cuan and her
critical where will itself was adduced in evidence. It is child Chiu Machay were to receive 40% of the deceased that the
defendant Chiu Guimco was to receive another 40%, and Chiu Tamco
not necessary to attach original will to petition for
20%. Later upon the same visit, Uy Cuan, on behalf of herself and child,
probate. 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
Sec. 3. Executor to present will and accept or refuse trust. - A decedent. No payments have, however, been made by him in compliance
person named as executor in a will shall, within twenty (20) days after he with this contract.
knows of the death of the testator, or within twenty (20) days after knows Ramon Contreras, a Chinese merchant, acting on behalf of Uy Cuan
that he is named executor if he obtained such knowledge after the death and her child, began to make inquires into the affairs of the estate. He
of the testator, present such will to the court having jurisdiction, unless wrote a letter to Guimco, urging him to produce the will of the decedent
the will has reached the court in any other manner, and shall, within such for the institution of lawful proceedings in accordance therewith. Guimco
period, signify to the court in writing his acceptance of the trust or his refused. Thus, a complaint was filed, charging Guimco with the failure to
refusal to accept it. produce the will within the time required by law.
The court found the accused guilty. That the will was duly executed
Q What is the duty of the executor? and that the accused and his coexecutor appeared before the notary
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public and procured the latter to prepare a petition for the probate of the It is immaterial, as far as practice is concerned, by whom a will is
will are facts which are not disputed. The action of the accused in presented for probate, the only restriction being that before any person
possessing himself of the property of his deceased brother and in refusing to may intervene in the proceedings had for the probate of a will, he should
take the proper steps to distribute the estate, as well as his refusal to be required to show an interest in the will or the property affected
comply with the contract for the payment of rent to the wife and child in thereby, either as executor or otherwise. For such purpose, it is sufficient
China, all tend to show that he was acting in bad faith. In finding the that he shows or produces prima facie evidence of his/her relationship to
defendant guilty and imposing upon him a fine of P1,800. 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
ISSUE:
claim of interest does not entitle him to his claim.
Whether an accused found guilty under Section 628 may likewise
be committed to prison under Section 629.
Q Who may intervene in the probate of the will?
A Section 1, Rule 76 enumerates the persons who can intervene in the
HELD:
probate of the will. Essentially, they are the same persons who can file
NO. Section 629 can only be applied when a court is acting in the
for the petition for the probate of a will.
exercise of its jurisdiction over the administration of the estates of deceased
1. devisee
persons and where administration proceedings are not already pending, the
2. executor
court before taking action under this section, should require that there be
3. legatee
before it some petition, information or affidavit of such character as to make
4. testator himself during his lifetime.
action by the court under this section appropriate. The under section 628, is
5. any person interested in the estate
an ordinary criminal prosecution. The act penalized in that section (628) is a
special statutory offense and is properly prosecuted upon complaint or
Q Who is an interested party?
information as other criminal offenses created by law. The remedy provided
in section 629 of the Code of Procedure is evidently a totally different A An interested party has been defined as one who would be benefited
remedy, having no relation with that provided in section 628. It is not by the estate of such an heir or one who has a claim against the estate
permissible in a prosecution under the last mentioned section to like a creditor. The interest acquired in order that a person may be a
superimpose upon the penalty of fine therein prescribed the additional party thereto must be material and direct and not merely indirect or
penalty of imprisonment prescribed in section 629. Also, to enforce the contingent. (Teotico vs. Del Val)
production of the will by the accused at such trial would constitute a
violation of his right against self- incrimination since the mere production of Teotico v. Del Val, 13 SCRA 406 (1965)
the will by him would be conclusive that he had possession of it as charged
in the criminal complaint. FACTS:
The offense punished under Section 4 is a special procedural offense Decedent Maria Mortera y Balsalobre vda. de Aguirre executed a
which must be prosecuted upon a complaint or information as other criminal will leaving a legacy to Dr. Rene Teotico, husband of her neice and
offenses. 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
Sec. 5. Person retaining will may be committed. - A person having CFi of Manila. Ana Del Val Chan, claiming to be an adopted child of one of
custody of a will after the death of the testator who neglects without the decedent’s sisters and a natural child of one of her brothers filed and
reasonable cause to deliver the same, when ordered so to do, to the court opposition alleging that the will was not executed as required by law, the
having jurisdiction, may be committed to prison and there kept until he testatrix was physically and mentally incapable to execute the will, and the
delivers the will. 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
Q When can the court commit a person to prison for retaining a physician who took care of the testatrix during her last illness.
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 section,
EXCEPT when acting in the exercise of its jurisdiction over the estates of
deceased persons. ISSUE/S:
₱ The remedy provided in Section 5 is different with that provided in Whether the oppositor has the right to oppose as well as the
Section 4. accordingly, in the prosecution under Section 4, it is not validity of the will.
permissible to superimpose upon the penalty of fine therein prescribed
the additional penalty of imprisonment imposed by Section 5. 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
RULE 76
the estate, or in the will, or in the property to be affected by it either as
ALLOWANCE OR DISALLOWANCE OF WILL 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
Sec. 1. Who may petition for the allowance of will. - Any one who has a claim against the estate like a creditor. Under the terms of
executor, devisee, or legatee named in a will, or any other person the will, the oppositor has no right to intervene because she has no
interested in the estate, may, at any time after the death of the testator, interest in the estate either as heir, executor, administrator, nor does she
petition the court having jurisdiction to have the will allowed, whether the have any claim to any property affected by the will. Even if the will is
same be in his possession or not, or is lost or destroyed. denied probate, Del Val will not acquire any share of the estate because
The testator himself may, during his lifetime, petition the court for she is not a legal hair of the deceased. The relationship of the adopter is
the allowance of his will. limited between such adopter and adopted.
With regard to the validity of the will, the witnesses to the will all
Q Who may file a petition for the probate of the will? attest that the testatrix was physically and mentally capable during the
A The following may file a petition for the probate of the will: (DELTA) execution of the will and that the will conformed with the requisites of the
1. devisee law. Lastly, there is no proof that Dr. Rene Teotico and his spouse exerted
2. executor any pressure upon the testatrix in order for her to execute a will leaving
3. legatee them a legacy and naming the spouse as the sole heir.
4. testator himself during his lifetime.
5. any person interested in the estate (creditor)

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Q What is the effect of an assignment of interest in the estate A The RTC acquires jurisdiction to probate a will when the following
upon an heir’s right to petition for probate of a will? jurisdictional facts are alleged:
A The mere fact that the share, title and the interest of the estate 1. that a person died leaving a will
Dear Ryan; DriVe
pertaining to one of the heirs have already been assigned to another 2. in the case of a resident, that at the time of his death, he was a
doesn’t estop said heir from asking for the probate of a will of the
resident within the territorial jurisdiction of the court, or in the
deceased testator.
case of a non- resident, that he left an estate within such
territorial jurisdiction (Fernando vs. Crisostomo)
Q When must a will be presented for probate?
A The will must be presented for probate 3. that the will has been delivered to the court and is in the
1. at anytime after the death of the testator possession thereof (Salazar vs. CFI)
2. during the lifetime of the testator 4. the value of the estate so that the proper court with jurisdiction
₱ since there is no express limitation to probate a will, the probate of a will (whether R/MTC) may be determined.
is not subject to bar by any limitations ₱ The law is silent as to the specific manner of bringing the jurisdictional
allegations before the court. But practice and jurisprudence have
Q Can estoppel apply to probate proceedings? established that they should be made in the form of an application filed
A YES. Estoppel may find application in probate proceeding. A person by with the original of the will attached thereto. But a mere copy of the
his conduct may estop himself and his privies from subsequently will to the application may be attached without prejudice to producing
procuring the probate of a will. Long delay in propounding the will for the original thereof at the hearing or when the court so requires. This
probate during which delay, the property of the estate might have been precaution has been adopted by some attorneys to forestall its
transferred to subsequent purchasers for value and without notice of the disappearance, which has taken place in certain cases.
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 Fernando vs. Crisostomo, 90 SCRA 585 (1951)
shown that not obstacle to the assertion of the right to have the will
probated existed. FACTS:
This case involved 2 cases.
Q Jong made a will naming Ricky as his voluntary heir. Can
Ricky, during Jong’s lifetie, file a petition to have the will One: Guardianship of Rufino Crisostomo and his 4 minor children. In this
probated? case, Hermogenes Fernando was appointed guardian of Rufino and his 4
A NO since the will is to be probated during the lifetime of the testator, minor children. When Rufino died, the children were left under the
then it should be testator himself, who should file the petition for guardianship of Hermogenes. He then filed for the approval of an
probate. extrajudicial settlement of the estate of the deceased parents of the
minors which was denied by the court ruling that the guardian of the
Q Why is the testator allowed to have his will probated during children is not the administrator of the estate until and after the said
his lifetime? estate has been acquired by the minors by proper proceedings.
A In general, probate of a will during the testator’s lifetime is allowed so
that: Two: Intestate estate of Sps. Crisostomo. German Crisostomo filed a
1. fraud may be avoided; petition as next on kin for the opening of intestate proceedings of the
2. the testamentary capacity of the testator is easily proved if he estate of the deceased and the appointment of himself and Pacita
personally appears before the probate court. Fernando as co-administrators which was granted by the court.
3. connection of defects in the formalities of the will is facilitated
4. opposition is minimized. ISSUE/S:
Whether the court’s appointment of Crisostomo and Fernando
as co-administrators is valid

HELD:
Jolly CHEL YES! No evidence is presented why the brother and sister of the
deceased, as nearest of kin, should not be appointed co-administrators of
Sec. 2. Contents of petition. - A petition for the allowance of a will the Intestate Estate of said decedent either on account of their
must show, so far as known to the petitioner: incompetency or lack of moral qualifications.
(1) The jurisdictional facts;
(2) The names, ages, and residences of the heirs, legatees, and devisees ISSUE/S:
of the testator or decedent; What must a petition for allowance or probate of a will show?
(3) The probable value and character of the property of the estate;
(4) The name of the person for whom letters are prayed; HELD:
(5) If the will has not been delivered to the court, the name of the A petition for the allowance or probate of a will must show, so far as
person having custody of it. known to the petitioner, the following:
But no defect in the petition shall render void the allowance of the )1 the fact of the death of the testator, indicating the time and place of
will, or the issuance of letters testamentary or of administration with the such death;
will annexed. )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;
Q What must be stated in the petition for allowance of a will? )4 whether the person named as executor consents to act as such, or
A A petition for the allowance of a will must state the following facts: renounces his right to become an executor;
1. The jurisdictional facts; )5 the names, ages, and residences of the heirs, legatees and devisees
2. The names, ages, and residences of the heirs, legatees, and of the decedent;
devisees of the testator or decedent; )6 the probable value and character of the property of the estate
3. The probable value and character of the property of the estate; )7 the name of the person whose appointment as executor is prayed for;
4. The name of the person for whom letters are prayed; and
5. If the will has not been delivered to the court, the name of the )8 if the will has not been delivered to the court, the name of the person
person having custody of it. having custody thereof (Salazar vs. CFI)
It is essential to the jurisdiction of a court to entertain probate
Q What are the jurisdictional facts necessary in order for the proceedings that the testator be dead, although it is enough if there be
RTC to acquire jurisdiction to probate a will? proof sufficient to satisfy a statutory presumption of death by absence.
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Ronald Chua
he filed a petition for probate of said will with Branch 3.
Q Example of a petition for allowance of a will. Which of the said courts acquired jurisdiction first?
A A Branch 2. The jurisdiction of the RTC becomes vested upon the
1. that X died on January 1, 1992 and that he was a resident of delivery thereto of the will, even if no petition for its allowance was
Makati at the time of his death; filed until later because upon the will being deposited, the court could
2. that his estate has a proximate value of ₱20k; moto proprio, have taken steps to fix the time and place for proving
3. that X is survived by Y, his wife, who is 30 years of age and a the will and issue the corresponding notices. Where the petition for
resident of Makati; and 2 children 7 and 8 years of age likewise a probate is made after the deposit of the will, the petition is deemed to
resident of Makati’ relate back to the time when the will was delivered.
4. that Atty. D be appointed as administrator;
5. that the will is with Atty. D. Q When jurisdiction vests in the RTC over the probate of a
will, what must the court do?
Q Why is it necessary to state the name and residence of each A It is the duty of the court moto proprio to appoint hearing for the will’s
heir or legatee in the petition for probate? allowance and to cause notices thereof to be given by participation.
A An application for probate should contain a statement of the name and The duty imposed by Section 3 of Rule 76 is imperative.
residence of each heir or legatee of the testator in order that the persons Noncompliance wherewith would be mockery of the law and of the last
entitled to notice of the proceedings and the manner of such notice may will of the testator. Consequently, a court can moto proprio set the
be determined. time and place for proving the will delivered to it.

Q What is the effect of the omission of any of those Q What should the notice of publication contain?
enumerated in this section which a petition must show? A The notice of publication should contain the following:
A It is expressly provided in the same section that “no defect in the petition 1. time of hearing
shall render void the allowance of the will, or the issuance of letters 2. place of hearing
testamentary or of administration with the will annexed.” The omission, 3. order to persons who have interest in the will to appear and
therefore, from the petition of a statement of names, ages and show case why the petition should/ should not be granted
residences of the heirs, legatees and devisees of the testator, cannot
render the order void for want of jurisdiction, any more than the omission Q How does the court acquire jurisdiction over persons
from the petition of a statement as to the proper value and character of interested in the probate of a will?
the estate. A The court acquires jurisdiction over all persons interested in the
settlement of the estate through the publication of the petition in the
Q Would failure to pay docket fees affect the jurisdiction of the newspapers.
probate court?
A Failure to pay docket fees is not jurisdictional. The court may, at any time Q Would the probate court lose its jurisdiction over the case
after the petition is filed, ask or require the party concerned to pay the if the person who filed the petition for probate withdraws
corresponding docket fees. from said case?
A NO. The withdrawal from the case of one who filed the petition for
Meaning of Due Execution probate does not affect the jurisdiction of the court over the
(1) That the will was executed strictly in accordance proceedings over all and other persons therein, for it is well established
with the formalities required by law 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
(2) That the testator was of sound and disposing mind
of a deceased person, whether he filed the petition for probate of a
when he executed the will will.
(3) That there was no vitiation of consent through
duress, fear, or threats Q Why must the court order be published?
(4) That it was not produced by undue or improper A Since a petition for probate of a will is a proceeding in rem, notice to
pressure or influence on the part of the beneficiary, or the whole world must be given in order to acquire jurisdiction.
some other person for his benefit
Q What is meant by publication for “3 weeks successively”?
(5) That the signature of the testator is genuine, i. e. it
A The language used in Section 3 of Rule 76 does not mean that the
was not procured through fraud and that the testator notice referred to therein should be published for three full weeks before
intended that what he executed was his last will and the date set for the hearing of the will. In other words, the first publication
testament. of the notice need not be made 21 days before the day appointed for the
hearing.
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 e.g. publication made on December 4, 11, and 18 and the hearing was set
a will is filed in, the court having jurisdiction, such court shall fix a time for December 19. from the first publication to the date of the hearing,
and place for proving the will when all concerned may appear to contest there are only 15 days. Nevertheless, since prior to the hearing date, the
the allowance thereof, and shall cause notice of such time and place to be publication has been made for three weeks successively, then the
published three (3) weeks successively, previous to the time appointed, in publication requirement is sufficiently satisfied.
a newspaper of general circulation in the province.
But no newspaper publication shall be made where the petition for Q What is meant by “newspapers of general circulation”?
probate has been filed by the testator himself. A A newspaper of general circulation, if it is published for the
dissemination of local news and general information; if it has a bona
Q When does jurisdiction become vested in the RTC over the fide subscription list of paying subscribers; and if it is published at
probate of a will? regular intervals. The fact that there is another paper published that
A Jurisdiction vests in the RTC over the probate of a will in two instances: has a few more subscribers and that other dailies also have a larger
1. upon the filing of a petition for the proving a will circulation in that province is unimportant. The law does not require
2. upon the delivery of a will to the court even without such petition that publication of the notice should be made in the newspaper with
the largest number of subscribers. No fixed number of subscribers is
Q On December 20, 1992, X, the custodian of Y’s will, delivered necessary to constitute a newspaper of general circulation.
said will to Branch 2 of Makati RTC. On December 22, 1992,

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

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

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As to the loss of the will, there is nothing to show that at the time
Q May the execution and contents of a lost or destroyed these records were burned by the insurgents there existed in the court-
holographic will be proved by the testimony of a single house of Pototan the copy of the will referred to. Moreover, the testimony
witness? that all the notarial records were likewise burned as they were kept in the
A The execution and contents of a lost or destroyed holographic will may same courthouse is inconclusive as the same is plainly and manifested
not be proved by the bare testimony of witnesses who have seen and/or contrary to the royal decree concerning the organization of notaries, which
read such will, although it may perhaps be proved by a Photostat copy, provided that: “Notaries shall keep the protocols and books in the same
or even a mimeographed or carbon copy or by other similar means; if building where they live, in their custody, and shall be responsible
any, whereby the authenticity of the handwriting of the deceased may be therefor.”
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 Their testimony is absolutely insufficient to establish in a satisfactory
party interested in its probate from establishing its due execution and manner the loss of the alleged will of Rosario Darwin, and the court below
proving clearly and distinctly the provisions thereof by at least two should not have, therefore, allowed the secondary evidence introduced by
credible witnesses, as provided for in Section 6, Rule 76. A lost will her as to the contents of the will, particularly in view of the fact that, as it
cannot be admitted for probate on an agreement or stipulation; evidence appears from the record, there had been pending since 1889 an action to
of it must be given as required by statute. declare this very will null and void.

Q When may secondary evidence be admitted in lieu of the LIM BILLLIAN vs. SUNTAY, 63 PHIL 793 (1936)
original will?
A When the evidence presented is insufficient to establish in a satisfactory FACTS:
Jose B. Suntay died in the City of Amoy, China. He married twice, the
manner the loss of the alleged will, secondary evidence to prove the
first time to Manuela T. Cruz with whom he had several children now
contents of the will can thereof not be allowed, as the allowance of such
residing in the Philippines, and the second time to Maria Natividad Lim
evidence is a violation of the Best Evidence Rule (Araujo et al. vs. Celis)
Billian with whom he had a son.
Apolonio Suntay, eldest son of the deceased by his first marriage,
Q When evidence sufficiently point to the loss of the will of the
filed the latter's intestate in the Court of First Instance of Manila. In the
deceased, such circumstance justify the presentation of
same court, Maria Natividad Lim Billian also instituted the present
secondary evidence of its contents and of whether it was
proceedings for the probate of a will allegedly left by the deceased.
executed with all the essential and necessary legal
According to Maria, before the deceased died in China he left with
formalities (Lim Billian vs. Suntay)
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
ARAUJO vs. CELIS, 6 PHIL 459 (1906)
original contained in the envelope. The will in the envelope was executed
in the Philippines, with Messrs. Go Toh, Alberto Barretto and Manuel Lopez
FACTS:
as attesting witnesses. Go Toh, as attorney-in-fact of the petitioner,
Rosario Araujo inherited from her mother, Asuncion, the hacienda
arrived in the Philippines with the will in the envelope and its copy Exhibit
known as Pangpang. She subsequently married Jose Celis, Gregoria’s’ son.
B. While Go Toh was showing this envelope to Apolonio Suntay and Angel
Rosario died leaving no descendants or ascendants, but only collateral
Suntay, children by first marriage of the deceased, they snatched and
relatives. Such relatives asked that the property inherited by Rosario from
opened it and, after getting its contents and throwing away the envelope,
her mother be delivered to them. The property, however, is held by the
they fled.
Gregoria, who took possession of the same after the death of her son Jose.
Upon these allegations, Maria asks in this case that the brothers
He died a year after the death of Rosario in l889.
Apolonio, Angel, Manuel and Jose Suntay, children by the first marriage of
The defendant claims that Rosario died leaving a will in which she
the deceased, who allegedly have the document contained in the envelope
bequeathed all of her property to her husband, Jose, and that the latter
which is the will of the deceased, be ordered to present it in court, that a
having died without a will, she, therefore, succeeded to all of his property,
day be set for the reception of evidence on the will, and that the petitioner
rights, and actions, thereby lawfully acquiring all the property that had
be appointed executrix pursuant to the designation made by the deceased
formerly belonged to her daughter-in-law. The problem, however, is that the
in the will.
will could not be found alleging that insurgents had burned the Court of
In answer to the court's order to present the alleged will, the
Pototan where the will was kept. She instead offered secondary parol
brothers Apolonio. Angel, Manuel and Jose Suntay, stated that they did
evidence as to its contents. CFI allowed the evidence over the objection of
not have the said will and denied having snatched it from Go Toh.
the collateral relatives of Rosario and ruled in favor of Gregoria. Hence this
appeal.
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.
ISSUE/S:
Whether secondary parol evidence is sufficient to prove Rosario’s will?
HELD:
YES. The evidence is sufficient to establish the loss of the document
HELD:
contained in the envelope. Oppositors' answer admits that, according to
NO. The loss of the alleged original will has not been sufficiently
Barretto he prepared a will of the deceased to which he later became a
established. The principal witness, Calixto Delgado testified that he had
witness together with Go Toh and Manuel Lopez, and that this will was
acted as procurador for Gregoria in an action brought against her by one
placed in an envelope which was signed by the deceased and by the
Jose involving the hacienda of Pangpang, and that as such there came into
instrumental witnesses. In court there was presented and attached to the
his possession a copy of the will of Rosario which was introduced in
case an open and empty envelope signed by Jose B. Suntay, Alberto
evidence in that action. However, he likewise testified that he never saw the
Barretto, Go Toh and Manuel Lopez. It is thus undeniable that this
original of that will because the same was retained by the notary. He
envelope Exhibit A is the same one that contained the will executed by the
likewise failed to affirm whether the copy in question was a simple or
deceased — drafted by Barretto and with the latter, Go Toh and Manuel
certified copy. More importantly, he further testified that the will was signed
Lopez as attesting witnesses. These tokens sufficiently point to the loss of
by two witnesses only. A will signed by two witnesses only could not under
the will of the deceased, a circumstance justifying the presentation of
any circumstances be valid under the law in force at the time referred to by
secondary evidence of its contents and of whether it was executed with all
the witness, and legally speaking such will could not then have been
the essential and necessary legal formalities.
probated or recorded.
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
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Ronald Chua
to raise, upon the evidence adduced by her, the other points involved A Section 7 applies only to notarial wills.
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 Q At what distance from the jurisdiction of the probate court
required by law for its probate. The testimony of Alberto Barretto bears must the witness be, for the court to take his deposition?
importantly in this connection. 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
Q Could a lost holographic will be probated? deposition.
A NO. Oral and/or secondary evidence cannot be introduced to prove the
existence and contents of a lost holographic will because the authenticity Q How will the deposition be taken?
of the signatures cannot be proved by oral testimony A A copy of the will shall be sent along with questions drafted by both
₱ Note that the SC in the Rodelas case did not rule definitely on this parties and the witnesses shall be examined regarding the will as if he
matter. The SC merely used the word “may.” Further, Atty. Gesmundo’s had testified in court.
opinion is on accord with Atty. Sebastian’s that a lost holographic will
cannot be admitted nor proved in probate. Sec. 8. Proof when witnesses dead or insane or do not reside
₱ When it comes to lost wills, only a lost notarial will can be probated, not in the Philippines. - If it appears at the time fixed for the hearing that
a lost holographic will. 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
Q What is the effect of a lost will said to be seen last in the prove the sanity of the testator, and the due execution of the will; and as
possession of the testator? 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
A Where a will which cannot be found is shown to have been in the
them.
possession of the testator, when last seen, the presumption is in the
absence of other competent evidence, that the same was cancelled or
Q What if all the subscribing witnesses are dead, incompetent
destroyed. The same presumption arises where it is shown that the
or unavailable?
testator has already access to the will and it cannot be found after his
A It will not prevent the establishment of the due execution and
death. It will not be presumed that such will has been destroyed by any
attestation of the will as long as its essentials are proved. After all, a
other person without the knowledge or authority of the testator. (Gago
will may generally be admitted to probate upon other legal and
vs. Mamuyac)
satisfactory proof, unless the law provides that depositions must be
taken. The signature and the handwriting of the testator and the
Q Who has the burden of proof?
witnesses must be proved.
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 Q What if the proponent cannot present all the subscribing
existence. Having proved its execution by the proponents, the burden is witnesses?
on the contestant to show that it has been revoked. (Gago vs. Mamuyac) 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
Q What is the court supposed to do after the due execution and proved. There would be a stronger case if the due execution can be
contents of a lost will had been proved? sufficiently established by the remaining witnesses and substantiated
A Section 6, Rule 76 provides: “When a lost will is proved, the provisions by the notary public who prepared and notarized the will. The bottom
thereof must be definitely stated and certified by the judge under the line is that if the testimony of any of the surviving subscribing
seal of the court, and the certificate must be filed and recorded as other witnesses can no longer be taken even through the taking of
wills are filed and recorded.” depositions, proof of the will by non- subscribing witnesses cannot be
authorized.
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 Sec. 9. Grounds for disallowing will. - The will shall be disallowed in
witnesses resides in the province, but that the deposition of one or more any of the following cases:
of them can be taken elsewhere, the court may, on motion, direct it to be (1) If not executed and attested as required by law;
taken, and may authorize a photographic copy of the will to be made and (2) If the testator was insane, or otherwise mentally incapable to make a
to be presented to the witness on his examination, who may be asked the will, at the time of its execution;
same questions with respect to it, and to the handwriting of the testator (3) If it was executed under duress, or the influence of fear, or threats;
and others, as would be pertinent and competent if the original will were (4) If it was procured by undue and improper pressure and influence, on
present. 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.

Q What may the court do where it appears that none of the


witnesses to the will resides in the province where the RELATED CIVIL CODE PROVISIONS:
hearing is to be held?
A Where it appears that none of the witnesses to the will resides in the
Art. 787. The testator may not make a
province where the hearing is to be held, the taking of the deposition of testamentary disposition in such manner that
one or more of them may be directed by the court at the time fixed for another person has to determine whether or not it is
the hearing.
to be operative. (n)
Q In such a case, how may the will be proved? Art. 788. If a testamentary disposition admits of
A A photographic copy of the will, upon authority of the court, may be different interpretations, in case of doubt, that
presented to the witnesses on his examination, the deponents may be
interpretation by which the disposition is to 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 operative shall be preferred. (n)
original will were present. Art. 791. The words of a will are to receive an
interpretation which will give to every expression
Q What is the nature of the will in Section 7?

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

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Art. 817. A will made in the Philippines by a citizen 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
or subject of another country, which is executed in his deposition should be taken.
accordance with the law of the country of which he is
a citizen or subject, and which might be proved and Q What if one of the witnesses opposes probate?
A The court may still allow probate if there are other evidence (i.e. other
allowed by the law of his own country, shall have the
witnesses, secondary evidence)
same effect as if executed according to the laws of the
Philippines. (n) Q Is the proponent bound to present all the witnesses?
A YES especially when the will is contested. If the proponent presents
Art. 818. Two or more persons cannot make a will
only one witness, while the opposition presents the other two, and the
jointly, or in the same instrument, either for their proponent himself does not oppose, then it would clearly weaken the
reciprocal benefit or for the benefit of a third cause of the proponent.
person. (669)
Substantial Compliance Rule – If the will has been
Art. 819. Wills, prohibited by the preceding article,
executed in substantial compliance with the formalities
executed by Filipinos in a foreign country shall not be of the law, and the possibility of bad faith and fraud is
valid in the Philippines, even though authorized by the obviated, said will should be admitted to probate.
laws of the country where they may have been
executed.(733a) • Separate Wills which contain essentially the same
Q What is testamentary capacity? provision and pertain to properties which in all
A Testamentary capacity is the capacity to comprehend the nature of the probability are conjugal in nature, practical
transaction in which the testator is engaged at the time to recollect the considerations dictate their joint probate.
property to be disposed of and the persons who would naturally be
supposed to have claims upon the testator and to comprehend the Sec. 10. Contestant to file grounds of contest. - Anyone
manner in which the instrument will distribute his property among the appearing to contest the will must state in writing his grounds for
objects of his bounty. To constitute a sound mind and disposing memory, opposing its allowance, and serve a copy thereof on the petitioner and
it is not necessary that the mind shall be wholly broken, unimpaired or other parties interested in the estate.
unshattered by disease or otherwise or that the testator be in possession
of all his reasoning faculties. (Torres et al. vs. Lopez) Contestant Must:
(1) State in writing his grounds for opposing the
Q Is failure of memory or old age or eccentricities sufficient to
allowance of the will; and
indicate lack of testamentary capacity or unsoundness of
mind? (2) Serve a copy thereof to petitioner and other
interested parties.
A Neither old age, physical infirmities, feebleness of mind, weakness of
memory, nor eccentricities are sufficient singly or jointly to show lack of Sec. 11. Subscribing witnesses produced or accounted for
testamentary capacity or unsoundness of mind if at the time of the where will contested. - If the will is contested, all the subscribing
execution of the will, he still possesses that degree of reason and of life witnesses, and the notary in the case of wills executed under the Civil
and that strength of mind to form fixed intention. The question is not so Code of the Philippines, if present in the Philippines and not insane, must
much what was the degree of memory possessed by the testator, as he be produced and examined, and the death, absence, or insanity of any of
had the disposing memory? (Torres et al. vs. Lopez) them must be satisfactory shown to the court. If all or some of such
₱ The evidence of those present at the execution of the will and of the witnesses are present in the Philippines but outside the province where
attending physician may also be relied upon and generally between the the will has been filed, their deposition must be taken. If any or all of
testimony of witnesses who were present at the execution of the will and them testify against the due execution of the will, or do not remember
who had opportunity to personally observe the mental condition of the having attested to it, or are otherwise of doubtful credibility, the will may,
testator and the testimony of expert witnesses whose opinion is merely nevertheless, be allowed if the court is satisfied from the testimony of
speculative, not being founded on facts which they have observed in other witnesses and from all the evidence presented that the will was
person, the former would be preferred. executed and attested in the manner required by law.
If a holographic will is contested, the same shall be allowed if at least
Q What if a guardian is named for the testator alleged to be three (3) witnesses who know the handwriting of the testator explicitly
incapacitated? declare that the will and the signature are in the handwriting of the
A When a guardian is named for the testator alleged to be incapacitated, a testator; in the absence of any competent witness, and if the court deem
presumption of his mental infirmity is created. However, the appointment it necessary, expert testimony may be resorted to.
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 Q In case the will is contested, must all the attesting
evidence showing that the testator, at the time he executed his will, was witnesses be produced and examined before the court?
in fact, of sound and disposing memory(Torres et al. vs. Lopez) 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
Q What is undue influence? showing must be made that they cannot be had, but that does not
A Undue influence is that which compels the testator to do that which is necessarily mean that they must be brought bodily before the court. It
against his will, from fear the desire of peace or from other feeling which is their testimony, which is needed, and not their actual personal
he is unable to resist. (Torres et al. vs. Lopez) presence in the courtroom. Hence, when an attesting witness to a will
resides outside the province where the will is offered for probate and
Q If someone wants to oppose probate, what must he do? 30 miles (50km) or more from the place where the probate
proceedings are held, his testimony may be taken in the form of a
A He should file an opposition in court, which would state his
deposition and a photographic copy of the will may be presented to the
objections and he should also send a copy to the proponent. witnesses on their examination and that they may be asked the same
Q What happens if the will is contested?
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questions with respect to it as if it were the original will. (Aldanese vs. • It is a requirement that a will that was probated in a
Salutillo) foreign country be re-probated in the Philippines. If
No will can be proved unless all subscribing witnesses, alive and
the decedent owns properties in different countries,
within the control of the process of the court are produced to testify.
(Cabang vs. Delfinado) separate proceedings must be had to cover the
When the petition for probate of a will is contested, the proponent same.
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 Sec. 2. Notice of hearing for allowance. - When a copy of such
cannot be considered sufficiently proved by the testimony of only one, will and of the order or decree of the allowance thereof, both duly
without the satisfactory explanation of the failure to produce the other authenticated, are filed with a petition for allowance in the Philippines,
two. Nevertheless, an objection to the probate of the will on such ground by the executor or other person interested, in the court having
cannot be made for the first time on appeal. (Avera vs. Garcia) 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
Note: When the authenticity of the will is not being for allowance.
questioned, there is no necessity of presenting the three
witnesses required under Article 811 of the Civil Code. What should be Filed
Petition for allowance accompanied with:
Sec. 12. Proof where testator petitions for allowance of (1) Authenticated copy if the will
holographic will. - Where the testator himself petitions for the probate (2) Authenticated decree of the allowance thereof.
of his holographic will and no contest in filed, the fact that he affirms that The court will then fix a time and place for hearing and
the holographic will and the signature are in his own handwriting, shall be
sufficient evidence of the genuineness and due execution thereof. If the
cause notice thereof to be given.
holographic will is contested, the burden of disproving the genuineness
and due execution thereof shall be on the contestant. The testator may, in Sec. 3. When will allowed, and effect thereof. - If it appears at
his turn, present such additional proof as may be necessary to rebut the the hearing that the will should be allowed in the Philippines, the court
evidence for the contestant. 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
Q What happens if after due execution, loss has been of the will, shall be filed and recorded by the clerk, and the will shall
established. What will the courts do? have the same effect as if originally proved and allowed in such court.
A The court will certify that the provisions of the lost will had been truly
proved. Q What are the requisites of the allowance of a will allowed
in a foreign state?
Q What if the will was not lost? A At the hearing for the probate of a will allowed in a foreign state, the
A The courts will issue a certificate in accordance with the provisions of applicant must introduce evidence to establish:
Section 13. 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
Sec. 13. Certificate of allowance attached to proved will. - To the Philippines
be recorded in the Office of Register of Deeds. If the court is satisfied, 3. that the will has been admitted to probate in such country
upon proof taken and filed, that the will was duly executed, and that the (Fluemer v. Hix)
testator at the time of its execution was of sound and disposing mind, and 4. the fact that the foreign tribunal is a probate court
not acting under duress, menace, and undue influence, or fraud, a 5. the laws of a foreign country on procedure and allowance of wills
certificate of its allowance, signed by the judge, and attested by the seal (Suntay v. Suntay)
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 • The necessity of presenting evidence on the foreign
and of certificate of allowance thereof, shall be recorded in the register of laws upon which the probate in the foreign country
deeds of the province in which the lands lie. is based is impelled by the fact that our courts
cannot take judicial notice of them.
RULE 77 • In the absence of proof of the foreign law, it is
Allowance of a Will Proved Outside of the Philippines and presumed that it is the same as that in the
Administration of Estate Thereunder Philippines.

Sec. 1. Will proved outside Philippines may be allowed here. SUNTAY v. SUNTAY, 95 PHIL. 500 (1954)
- 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 FACTS:
of First Instance in the Philippines. Jose Suntay (a Filipino citizen and resident of RP) died in China,
leaving real and personal properties in the Philippines and a house in
Q What is the effect of a will of an alien who is abroad? China. He left 9 children in the first marriage and a child named Silvino in
A The will made in the Philippines by a citizen of another country which is the second marriage with Maria Natividad who survived him. Intestate
executed in accordance with the law of the country of which he is a proceeding was held in the CFI of Bulacan and Federico (son from the 1 st
citizen and which might be proved and allowed by the law of his own marriage) was named administrator. Afterwards, the surviving widow filed
country, shall have the same effect as if executed according to the laws a petition in the court for the probate of a last will and testament claimed
of the Philippines (Article 817) 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
Q What is the effect of a will of a Filipino executed in a foreign because of the loss of the RP will and the insufficiency of the evidence to
country? establish the loss. An appeal was taken and the SC held the evidence
A When a Filipino is in a foreign country, he is authorized to make a will in before the probate court sufficient to prove the loss of the will and
any of the forms established by the law of the country in which he may remanded the case to the CFI of Bulacan for further proceedings.
be. Such will may be probated in the Philippines (Article 815) 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.

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where it was granted, so that an administrator appointed in one
ISSUE: state or country has no power over property in another state or
Whether the China Will may be probated. country (Leon and Ghezzi v. Manufacturers Life Insurance Corp.)

HELD: LEON & GHEZZI v. MANUFACTURERS LIFE INSURANCE


NO. The China will may be probated if the following requisites are COMPANY, 90 PHIL 459 (1951)
established:
1. The fact that the foreign tribunal is a probate court. In the absence FACTS:
of proof that the municipal district court of Amoy, China is a probate Basil Gordon Butler, a former resident of the Philippines died in
court and on the Chinese law of procedure in probate matters, it New York leaving a will duly probated in the Surrogate’s Court of New
may be presumed that the proceedings in the manner of probate or York County. James Ross, Sr., James Madison Ross, Jr., and Edward Selph
allowing a will in the Chinese courts are the same as those provided were named executers in said will.
in our laws. It is a proceeding in rem and for the validity of such In the will, the residuary clause bequeathed all the remaining
proceedings, personal notice or by publication, or both to all properties to Mercedes De Leon of Maypajo, Caloocan, Rizal, personal
interested parties must be made effects were to be delivered to her, but money and other securities were
2. The laws of a foreign country on procedure and allowance of wills. to be held in trust for her benefit by said executors. And as Butler believed
Where it appears that the proceedings in the court of a foreign that Mercedes was not of sound judgment, discretion was left to the
country were held for the purpose of taking the testimony of 2 executors as to the decision on what would be more advantageous to
attesting witnesses to the will and the order for the probate court Mercedes.
did not purport to allow the will, the proceedings cannot be deemed James Ross, the court appointed trustee, bought an annuity
to be for the probate of a will, as it was not done in accordance with from the Manufacturers Life at its head office in Toronto, Canada, paying
the basic and fundamental concepts and principles followed in the $ 17,091.03 as combined premiums. The contract stipulated that the
probate and allowance of wills. Consequently, the will referred to death of Mercedes, the capital sum was to be paid back to James Ross.
therein cannot be allowed, filed and recorded by a competent court The estate was settled and the proceedings closed. Mercedes
of this country. began receiving her monthly allowance. With the probable intent of
getting hold of the entire sum of the annuity, Mercedes sought to have
Q What is the presumption as far as foreign laws are the will probated in the CFI of Manila. She also secured the appointment
concerned? of Ghezzi as administratrix with a will annexed. Ghezzi filed a motion
A With respect to the probate of a foreign will on the bases of its alleged praying for the citation of the manager of the MLA branch of
probate in the absence of proof as to the probate law and procedure of Manufacturers to appear and render a full accounting of certain funds
the foreign country, there is the presumption that it is the same as that which was allegedly in its possession and claimed it belonged to the
of the Philippines at least to the extent of requiring notice to parties estate. The CFI judge denied said motion contending that the funds came
interested. (Suntay v. Suntay) into the possession of the company in due course and therefore sees no
In the absence of evidence to the contrary, foreign laws on a particular justifiable reason why an accounting has to be made.
subject are presumed to be the same as those of the Philippines
(Miciano v. Brimo) ISSUE/S:
Whether the administratrix is entitled to an accounting of the
Effects of the Allowance of a Will Under Rule 77: annuity
(1) The will shall be treated as if originally proved and
allowed in Philippine Courts HELD:
NO. Administration only extends to the assets of the decedent
(2) Letters Testamentary or administration with a will found within the state or country where it is granted so that Ghezzi has no
annexed shall extend to all estates in the Philippines. power over the assets of Butler located outside the country. The original
(3) After payment of just debts and expenses of administrator of the estate had invested in an annuity in Canada, under a
administration, the residue of the estate shall be contract executed in that country. Hence, Canada is the situs of the
disposed of as provided by law in cases of estates in the money.
Philippines belonging to persons who are inhabitants of
another state or country. • 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
Note: Venue for the petition for re-probate is the same both countries. That which is granted in the jurisdiction of the
decedent’s domicile is termed principal administration, while any
as that provided for in Rule 73.
other administration is termed ancillary administration.

Sec. 4. Estate, how administered. - When a will is thus allowed,


the court shall grant letters testamentary, or letters of administration RULE 78
with the will annexed, and such letters testamentary or of Letters of Testamentary and of Administration
administration, shall extend to all the estate of the testator in the When and To Whom Issued
Philippines. Such estate, after the payment of just debts and expenses
of administration, shall be disposed of according to such will, so far as Sec. 1. Who are incompetent to serve as executors or
such will may operate upon it; and the residue, if any, shall be disposed administrators. - No person is competent to serve as executor or
of as is provided by law in cases of estates in the Philippines belonging administrator who:
to persons who are inhabitants of another state or country. (a) Is a minor;
(b) Is not a resident of the
Q What law governs testamentary dispositions? Philippines; and
A Article 10 of the CC provides that the national law of the testator is the (c) Is in the opinion of the court
one to govern his testamentary dispositions. (Miciano v. Brimo) unfit to execute the duties of the trust by reason of drunkenness,
improvidence, or want of understanding or integrity, or by reason
Q What is the extent of the power of the administration of the of conviction of an offense involving moral turpitude.
estate granted by a court?
A The general rule universally recognized is that administration extends Who Can Administer the Estate:
only to the assets of a decedent within the state or country (a) Executor
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(b) Administrator
(c) Administrator with a will annexed Q Who are competent to act as executors or administrators?
A A person may be appointed an executor or administrator who is
Q What is an executor? capable of making the business of a trust company in the Philippines
A An executor is a person nominated by a testator in his will to carry out may be appointed as an executor or administrator of an estate in the
his direction and request thereof and to dispose of the property same manner as a individual. A reading of Section 1, Rule 78 would
according to his testamentary provisions after his death. If the person yield the inference that a person who is:
named is a woman, she is properly called an executrix. 1. of age;
• Any COMPETENT person may serve as executor or 2. a resident of the Philippines; and
3. the court deems him fit (e.g. not a drunkard); may be an
administrator.
administrator or executor
Q What is an administrator? Q Who are incompetent to act as executors or
A An administrator is a person appointed by the court of probate to administrators?
administer and settle intestate estates and such testate estates where A Under Section 1 of Rule 78, the persons who are disqualified or
no executor is named in the will, or the executor/s is/are incompetent, incompetent to serve as executors or administrators are the following:
refuse the trust, or fail to give bond. 1. minors;
- If the person appointed by the court is a 2. non- residents of the Philippines;
woman, then she is properly called an administratrix 3. those who, in the opinion of the court, are unfit to execute the
- Strictly speaking, when there is a will but duties of the trust by reason of:
no competent executor was designated by the testator (or (a) drunkenness;
otherwise failed to qualify) or the person designated although (b) improvidence;
qualified is unwilling to serve then the person appointed by the (c) want of understanding;
court is properly called “administrator with a will annexed.” An (d) want of integrity;
administrator is the person appointed in case there is no will. (e) conviction of an offense involving moral
turpitude
4. The executor of an executor cannot administer the estate of the
Q What is the nature of the office of an executor or first testator (Beda)
administrator?
A The rule generally acquiesced is that executors as well as administrators Q Why is a minor disqualified or incompetent to serve as
are trustees, that funds of the estate in their hands are trust funds, and executor or administrator?
that they may be held to responsibilities and duties of trustees. An A A minor is disqualified or incompetent to serve as executor or
administrator occupies a position of the highest trust and confidence. He administrator because as a general rule, a minor is incapacitated to
is required to exercise reasonable diligence and act in entire good faith enter into contracts. He needs, always, the assistance of a
in the performance of that trust. guardian or legal representatives, to exercise any valid act.

Executor Administrator Q Why is a non-resident of the Philippines disqualified or


Nominated by the testator and Appointed by the court in case the incompetent to serve as executor or administrator?
appointed by court testator did not appoint an A While there is nothing in the law which requires the courts to appoint
executor or if the executor refused residents only as administrators or guardians, however,
appointment (administrator with a notwithstanding this, the courts, charged with the responsibilities of
will annexed) or if the will was protecting the estates of deceased persons, wards of the estate, etc.
disallowed or if a person did not should not appoint them as the court will find much difficulty in
make a will (intestate succession) complying with its duty since non-residents are not personally subject
Must present will to the court No such duty. to their jurisdiction. (Guerrero vs. Teran)
within 20 days after he knows of
the death of testator or after he GUERRERO v. TERAN, 13 PHIL 212 (1090)
knew that he was appointed as
executor (if he obtained such FACTS:
knowledge after death of testator), Leopoldo Teran was appointed as administrator of the estate of
unless the will has reached the Antonio Sanchez Munoz on September 17, 1901. Maria Munoz Gomez was
court in any manner thereafter appointed by the CFI of Albay on March 18, 1902 as guardian
Testator may provide that he may Required unless exempted by law. for the minors Maria Manuela and Maria del Carmen Sanchez Munoz.
serve without a bond (BUT court While some indications show that Teran continued to act as administrator
may direct him to give a bond of the estate, the fact exists that Maria Munoz Gomez was the actual
conditioned only to pay debts). representative of the said minors in the administration of their interests in
Compensation may be provided for Compensation is governed by Sec. the estate of Antonio from March 18, 1902 until October 6, 1906 and
by the testator in the will otherwise 7, Rule 85. therefore as such guardian and the administratrix of the estate of said
Sec. 7, Rule 85 will be followed. minors, must be held responsible for the property belonging to the minors
during the period while she was their actual guardian. On October 6,
Q What is the reason for the appointment of an executor or 1906, the CFI of Albay removed Maria Munoz Gomez as such guardian for
administrator? the reason that she was not a resident of the Philippine Islands at the time
A The appointment of an administrator is a means provided by the rules to of her appointment and appointed as guardian of said minors Felix
protect not only the estate of the deceased but also the rights of the Samson. From the order annulling the appointment of Maria Munoz her
creditors in order that they may be able to collect their creditors in order lawyers appealed to the SC, which appeal was subsequently withdrawn
that they may be able to collect their credits and those of the heirs and therefore making the order final.
legatees in order that they may receive the portions of the inheritance
or legacies pertaining to them after all the debts and expenses have ISSUE/S:
been paid. Hence, the judicial administrator is the legal representative Whether administrators or guardians must be residents of the
not only of the testate or intestate estate but also of the creditor, and Philippines to be qualified for appointment as such?
the heirs and legatees, inasmuch as he represents their interest.
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HELD: man and woman or conduct contrary to justice, honesty,
NO. there is nothing in the law that requires the courts to appoint modesty or good morals.
residents only as administrators or guardians. However, notwithstanding the
fact that there are no statutory requirements upon this question, the courts, Q What if a person possesses an antagonistic interest with
charged with the responsibilities of protecting the estates of deceased that of the estate?
persons, wards of the estate, etc., will find much difficulty in complying with A A mere antagonistic interest does not disqualify a person out right
this duty by appointing administrators and guardians who are not personally from being appointed as executor or administrator.
subject to their jurisdiction. Notwithstanding that there is no statutory
requirement, the courts should not consent to the appointment as Q Can the court add more disqualifications?
administrators and guardians of person who are not personally subject to
the jurisdiction of our courts here.
A YES since the court has the discretion in determining whether a
person is fit to be an executor or administrator.
Q What is the degree of drunkenness which would disqualify a
person from being an executor or administrator? Q Why are drunkards, convicts, etc. disqualified or
A It is that degree of drunkenness that would impair a person’s sound incompetent to serve as executor or administrator in the
judgment and reason and which would necessarily affect his integrity discretion of the court?
and honesty. A Drunkards, convicts, etc. maybe unfit, in the opinion of the court, to
discharge the duties of an executor or administrator. It must be
• The drunkenness contemplated by this statute,
noted, however, that the unfitness of a person to act as executor or
undoubtedly, is that excessive, inveterate and administrator by reason of drunkenness, conviction, etc. depends
continued use of intoxicants, to such an extent as to solely on the discretion of the court.
render the subject of the habits as unsafe against to
entrust with the care of property or the transaction of Q Can a corporation or an association act as an executor or
business. administrator?
A A corporation or association authorized to conduct the business of a
Q What is meant by improvidence? trust company in the Philippines may be appointed as an executor,
A Improvidence generally connotes unwise or ill-advised spending. administrator, guardian of an estate, or trustee, in like manner as an
• The want of care and foresight in the management of individual. However, it cannot be appointed guardian over the person
property which would be likely to render the estate and of the ward.
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 Are there other grounds for disqualification or
incompetency?
Q Why is improvidence a ground for disqualification as A YES. The SC has held that courts may likewise refuse to appoint a
executor or administrator? person as executor or administrator on the ground of unsuitableness,
A An executor or administrator is entrusted with the management of an as for instance, when such person has an adverse interest or is hostile
estate and an improvident lacks good judgment and foresight. to those immediately interested in the estate to such an extent as to
render his appointment inadvisable. The determination of a person’s
Q Is being a gambler a disqualification? suitability for the office of administrator rests in the sound judgment
A Although being a gambler is not enumerated as a ground for of the court exercising the power of appointment and such judgment
disqualification, if it is of such degree as to render him unfit or will not be interfered with on appeal, unless it appears affirmatively
unsuitable for the position of executor or administrator, then it amounts that the court below is in error. (Navas Sioca v. Garcia)
to a disqualification.
NAVAS v. GARCIA, 44 PHIL. 711 (1923)
Q What is meant by “want of understanding”?
A Want of understanding means lack of knowledge to know the nature of FACTS:
the functions of an executor or an administrator. When Geronimo Uy Coque died, Jose Garcia was appointed by
• Want of understanding is a disqualification where it the Samar CFI as the administrator of his estate. Appellant Juana Navas
amounts to lack of intelligence, and although it has been Sioca, the surviving spouse, maintained that the court erred in not
held that weakness of mind not amounting to want of appointing her administrator instead of Jose Garcia.
understanding will not disbar one from his right to
administer there is also authority for the view that ISSUE/S:
weakness of mind as well, such as would or might Whether the court erred in appointing Garcia.
subject one to sinister influence or coercion against the
HELD:
general interest of the estate will constitute a sufficient NO. the question raised upon appeal was considered res
objection. judicata since no appeal had been taken from the CFI order. Even though
a probate court cannot just disregard the preferential rights of the
Q What is meant by “want of integrity”? surviving spouse over the estate, it can still appoint another person should
A Want of integrity generally connotes a person’s lack of credibility as to the spouse be considered unsuitable. Whether the person is suitable
affect his honesty. depends upon the sound discretion of the probate court. It cannot be
• To sustain a judgment of want of integrity – the interfered with on appeal unless there was clear error on the CFI’s part.
accusation should be certain and grave in its nature, and In this case, the LC found that Navas had an adverse interest in
must be established by proof which would at least the estate of such a character that would render her as an unsuitable
approach the certainty required for conviction in a administrator. Unsuitableness may consist in adverse interest in some kind
criminal prosecution. or hostility to those immediately interested in the estate.
(NOTE: the SC did not have the records of the case and simply presumed
Moral Turpitude – an act of baseness, vileness or that the LC had sufficient grounds to deny Navas administration of the
depravity in the private and social duties which a man estate)
owes his fellow men, to society in general, contrary to the
accepted and customary rule of right and duty between
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Q X keeps on borrowing from the testator and he cannot even A The Clerk of Court by authority of a probate judge issues letters
support his own family. Nevertheless, he was named as the testamentary
executor. As judge, will you issue letters testamentary to X?
what if he was appointed as administrator? Q When are letters testamentary issued?
A The will or the testator should be given respect by the probate court, A After the will has been filed and an appropriate probate had wherein
since the appointment of the executor is left solely to the testator. The the will passes probate.
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 Q Is the date if such issuance the point of reckoning as
it is to be presumed that he had good reasons for doing so. Should the regards the effectivity of the letters testamentary?
court, given its discretion, determine that the unworthiness, incapacity, A NO. the letters retroact to the day of the testator’s death.
ineptitude and unfitness of such person is manifest and real, it can
disapprove such appointment as directed by the testator. Q May an executor refuse the trust when in consideration of
- A person who has some liabilities to some such refusal the heirs bribed him?
heirs and to the estate as a whole may likewise not be appointed A NO. He may not refuse the trust by reason of public policy.
administrator because he cannot be expected to compatibly
perform the duties of the office. He would be considered as Q Is Section 4, Rule 78 mandatory in the sense that when a
unsuitable for appointment as administrator since he would be will has been proved or allowed, the courts have no
considered as having an adverse interest of some kind in the alternative but to issue letters testamentary to the person
estate. named as executor therein?
- Clerks of Court and other court personnel of A Even though the person named as executor accepts the trust and
probate courts should not be appointed as administrator or gives the bond, this provision of law should not be strictly interpreted
receivers of estates of the deceased persons so as not to because the court would be deprived of its power not to appoint one
compromise their objectivity and impartiality in the performance who is unworthy of the trust, notwithstanding the fact that he was
of their regular function. named as such by the testator. (Mercado v. Vda. De Jaen)

Sec. 2. Executor of executor not to administer estate. - The MERCADO vs. GORORDO VDA. DE JAEN, 64 PHIL. 75 (1937)
executor of an executor shall not, as such, administer the estate of the
first testator. FACTS:
Msgr. Gorordo, the retired bishop of Cebu, died leaving a will.
Q Explain Section 2, Rule 78 of the Rules of Court Said will instituted his sister, herein respondent, Maria Gorordo Vda. De
A Section 2, Rule 78 provides that an executor of an executor cannot Jaen as his universal heir and in case of her death, his nieces Telesfora
administer the estate of the first testator. Jaen and Cesorea Gorordo. Fr. Emiliano Mercado, a parish priest of San
Nicolas, Cebu, was named as an executor and in his absence, Fr.
Q What is meant by the term “administrator De Bonis Non”? Alejandro Espina, parish priest of Cebu Central. The will was duly probated
A One who is appointed as the new administrator after the death of an and the CFI of Cebu confirmed the appointment of Fr. Mercado after the
executor who has not finished settling the estate. later filed a ₱5000 bond.
Maria, Telesfora and Ceserea opposed the order appointing Fr. Mercado as
Q Illustrate the prohibition on executor of an executor. executor and prayed for the suspension of said order alleging that:
A A, in his will appoints B as executor and B, in turn, appoints C in his own 1. Mercado engaged the services of Atty. Alo and Veloso for the sole
will as executor. If A and B die, C can only administer B’s estate but not purpose of repaying the obligations owed to said lawyers.
A’s. 2. Mercado cannot be impartial as his parish, San Nicolas, was
named as one of the legatees in the will.
Sec. 3. Married women may serve. - A married woman may serve 3. As the estate had no debts and since the heirs are all of age,
as executrix or administratrix, and the marriage of a single woman shall there is no need to incur unnecessary expenses as that of
not affect her authority so to serve under a previous appointment. executor’s and attorney’s fees.
4. Appellants are better able to protect the interests of the estate
Q Does a change in status of a woman affect her qualification 5. Atty. Reviles, husband of Cesarea, is willing to render professional
to act as executrix or administratrix? services free of charge
A A change in status of a woman does not affect her qualification to act as The LC denied said opposition.
executrix or administratrix.
ISSUE/S:
Sec. 4. Letters testamentary issued when will allowed. - When Whether Fr. Mercado should be appointed executor.
a will has been proved and allowed, the court shall issue letters
testamentary thereon to the person named as executor therein, if he is HELD:
competent, accepts the trust, and gives bond as required by these rules. 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,
Letters Testamentary – is an authority issued to an
once a will is probated, the court is bound to issue letters testamentary
executor named in the will to administer the estate.
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
Letters of Administration – is an authority issued by such should not be strictly interpreted, for the court may be deprived of its
the court to a COMPETENT person to administer the estate power to appoint another should the executor so named is incapacitated,
of the deceased who died intestate. it is also true that incapacity must be manifest and real and not merely
imaginary.
Letters of Administration with a Will Annexed – is an As to appellant’s allegations:
authority issued by the court to a COMPETENT person to 1. The reason chosen by Fr. Mercado in his engagement of said
administer the estate of the deceased if the executor lawyers is because of the competence and confidence he has on
named in the will refused to accept the office. 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?)
Q Who issues letters testamentary?
2. the parish of Fr. Mercado is not the legatee but the “…poor of…
San Nicolas”
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3. Due to the numerous legacies and several claims being made on the court appoints only one administrator in intestate estates, more than
estate, it is absolutely necessary to appoint an executor. one administrator may be appointed by the court.
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 Q When there is more than one executor or administrator,
estate alleging that they were not mentioned in the will. what is the extent of each one’s authority?
A The general practice is that co- executors or co- administrators will
Q Has the court an unbridled power not to appoint a person exercise joint supervision over the entire estate. They have equal
named in the will as executor? authority among themselves since under the law, they are only one
A NO. The court has the power not to appoint a person named in a will as person representing the testator, and acts done by one in reference to
executor on the basis of unworthiness, incapacity, ineptitude and the administration of the testator’s estate are deemed the acts of all
unfitness. But in order to do this, the said grounds must be manifest inasmuch as they have a joint and entire authority over the whole
and real, not merely imaginary. property belonging to the estate. An agreement between executors or
administrators that one alone shall manage the estate is VOID.
Q What is the extent of the court’s power over the testator’s
choice? Sec. 6. When and to whom letters of administration granted.
A The court itself can make no original appointment of an executor, since - If no executor is named in the will, or the executor or executors are
its power is limited to recognizing and approving or disapproving an incompetent, refuse the trust, or fail to give bond, or a person dies
appointment by the testator. intestate, administration shall be granted:

Q When a will has been admitted to probate but was appealed, (a) To the surviving husband or
may a special administrator be appointed in the meantime? wife, as the case may be, or next of kin, or both, in the discretion
A The choice of the executor is a precious prerogative of a testator, a of the court, or to such person as such surviving husband or wife,
necessary concomitant of his right to dispose of his property in the or next of kin, requests to have appointed, if competent and willing
manner he wishes. The curtailment of this right may be considered a to serve;
curtailment of the right to dispose. And as the rights granted by will take (b) If such surviving husband or
effect from the time of his death, the management of his estate by the wife, as the case may be, or next of kin, or the person selected by
administrator of his choice should be made as soon as practicable, when them, be incompetent or unwilling, or if the husband or widow, or
no reasonable objection to his assumption of the trust can be interposed next of kin, neglects for thirty (30) days after the death of the
any longer. Hence, it has been held that when a will has been admitted person to apply for administration or to request that administration
to probate, it is the duty of the court to issue letters testamentary to the be granted to some other person, it may be granted to one or
person named as executor upon his application. And where the probate more of the principal creditors, if competent and willing to serve;
court pending appeal against its order admitting a will to probate and (c) If there is no such creditor
appointing as judicial administrator, the person named therein as competent and willing to serve, it may be granted to such other
executor, appoints as special administrator any person other than the person as the court may select.
executor named in the will, it contains an abuse of discretion (Ozaeta, et
al. vs. Pecson, etc. and BPI) Q When are letters of administration granted?
- The Rules of Court grants discretion to the A Section 6, Rule 78 contemplates of two cases wherein letters of
probate court to appoint or not to appoint a special administrator. administration shall be granted, namely when:
Such power of appointment is not even governed by the 1. a person dies with a will
preference rule governing appointment of regular administrators. a. without appointing an executor
Nevertheless, this discretion should not be a whimsical one, but b. he appoints an executor but is incompetent
one that is reasonable and logical and in accord with fundamental c. he appoints an executor but the executor refuses;
legal principles and justice. The fact that a judge is granted and
discretion does not authorize him to become partial, or to make d. he appoints an executor but the executor fails to give
his personal likes and dislikes prevail over, or his passions to rule a bond
his judgment. Hence, there is no reason why the same 2. a person dies without a will
fundamental and legal principles governing the choice of a regular
administrator should not be taken into account in the appointment Q Does Section 6, Rule 78 require that the estate of a
of the special administrator. person, who died leaving properties in the Philippines,
must always be judicially administered?
Sec. 5. Where some coexecutors disqualified others may act. A This legal provision enumerates the general rule that when a person
- When all of the executors named in a will can not act because of dies leaving property in the Philippines, his property should be
incompetency, refusal to accept the trust, or failure to give bond, on the judicially administered. However, Rule 74 establishes 2 recognized
part of one or more of them, letters testamentary may issue to such of exceptions, to wit:
them as are competent, accept and give bond, and they may perform 1. extrajudicial settlement by agreement between the heirs; and
the duties and discharge the trust required by the will. 2. summary settlement of estates of small value.

Q What is the nature of the act of the executors in this Q What is required for the validity of the appointment of the
section? administrator?
A The act of one executor is the act of all. There is an equality of authority A It is important for the validity of the appointment of the administrator
among them. that a hearing of the petition for administration be conducted and
notices thereof sent to the other heirs and interested parties. The
Q What is the nature of the liabilities of the executors under requirement of a hearing and the notification to all the known heirs
this section? and other interested parties as to the date thereof is essential to the
A The liability of the executors in this section is SOLIDARY since the act validity of the proceeding for the appointment of an administrator in
of one is the act of all. 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
Q May the court appoint more than one executor or determine the suitability of the applicant to the trust by giving him the
administrator? opportunity to prove his qualifications and affording oppositors, if any,
A YES. More than 1 executor may be issued letters testamentary in to contest the said application.
accordance with the nomination in the will. Also, while as a rule, the

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Ronald Chua
Q What is the basis or primary consideration in the 4. in default of any person selected by the surviving spouses or next
appointment of an administrator? Is it the same as the of kin, then one or more of the principal creditors; and
principal consideration in the establishment of the 5. in default of such creditors, then such other persons as the court
preference under Section 6, Rule 78? may select.
A The principal consideration reckoned with in the appointment of the
administrator of the estate of a deceased person is the interest in said Q What is the basis of the preference in this section?
estate of the one to be appointed as such administrator. This is the A The basis of the preference is the BENEFICIAL INTEREST IN THE
same consideration which Section 6, Rule 78 takes into account in ESTATE.
establishing the order of preference in the appointment of
administrators for the estate (Nicolasa de Guzman vs. Angela Q What is meant by the term “next of kin” as used in this
Lomcolioc) article?
- The underlying assumption behind the rule is A “next of kin,” as used in this section means heirs under the law of
that those who will reap the benefit of a wise speedy economical succession.
administration of the estate. On the other hand, suffer the
consequences of waste, improvidence or mismanagement have Q Why is the surviving spouse preferred above all others?
the highest interest ant most influential motive to administer the A Since the principal consideration in the appointment of an
estate correctly. (Gonzales vs. Aguinaldo) administrator is the interest in the estate of the one to be appointed,
then the surviving spouse is preferred since the law, in considering
DE GUZMAN vs. LIMCOLIOC, 68 PHIL 673 (1939) the preference, takes into account the interest of the surviving spouse
in the estate of the deceased as a partner in the conjugal partnership.
FACTS: The fact of marriage alone introduces a change in the conditions of
Proceso de Guzman married Agatona Santos, with whom he had guardianship over a minor woman; and although the marriage of a girl
four children: Nicolasa (appellee), Apolinario, Ana and Tomasa. During the who is under guardianship does not ipso facto abolish the
marriage the couple acquired properties. After the death of Agatona, guardianship over the property, it does not terminate the guardianship
Proceso married herein appellant Angela Limcolioc with whom he had no over the person. Moreover, the existence of a guardianship over the
child. After the death of Proceso, Nicolasa was appointed by the court as estate of a married woman in other hands than those of the husband
administrator of the properties. Angela opposed, contending that as the is in certain respects undesirable since the husband is legally entitled
widow, she must be preferred. to the management of conjugal property and the earnings of the
paraphernal property of the wife constitute community property.
In the case of de Guzman v. Limcolioc (same parties) this court Therefore, if the husband is found to be a suitable person, he is the
stated that the principal consideration reckoned with in the appointment of proper individual to fill the office.
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 preference
of the widow to administer the estate of her husband, upon the latter’s Q What is the effect of the invalidity of the marriage upon
death, because she is supposed to have an interest therein as a partner in the right to be appointed administrator?
the conjugal partnership. But this preference established by law is not A The right of a surviving spouse to be appointed administrator of the
absolute, if there are other reasons justifying the appointment of an estate of the deceased spouse is not affected by the fact that her
administrator other than surviving spouse. If the interest in the estate is marriage is voidable. But where the marriage is void, the surviving
what principally determines the preference in the appointment of an spouse’s prior right is not recognized.
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 Q Is the preference of the surviving spouse a hard and fast
interest therein than the surviving spouse, the preference established in the rule?
latter’s favor becomes untenable. A NO. The preference established by law is not absolute if there are
reasons justifying the appointment of an administrator other than the
ISSUE/S: surviving spouse. If the interest in the estate is what principally
Whether the LC erred in appointing de Guzman as co- determines the preference in the appointment of an administrator,
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
HELD: preference established in the latter’s favor fails to the ground. An
NO. The LC having been of the opinion that de Guzman deserves the example would be in case the whole or major portion of the estate of
appointment of co-administrator and it being discretionary on the part to the deceased has been acquired by him during the first marriage, the
determine who should be appointed administrator of the properties of a children of the first marriage shall be preferred to the childless widow
deceased person. SC believes that it is unjustified for the SC to meddle in of the second marriage in the selection of an administrator.
the exercise of such discretion, if not appearing that said court has Furthermore, the order of preference established in Section 6, Rule 78
committed a grave abuse thereof. The reason cited above are applicable to is founded on the assumption that the persons preferred are suitable.
the case at bar. Apolinario de Guzman (brother of Nicolasa de Guzman) If they are not, the court may entirely disregard the preference thus
whom the latter needs to help her in the administration of the properties left provided. This is the reason for the rule that in the selection of an
by their deceased father, many of which consist in fisheries situated in the administrator, courts may exercise discretion and, as stated
province is as interested as his sister in that said properties be duly elsewhere, the persons appearing in the order of preference may not
administered and conserved for the benefit of the heirs. There is no ground be appointed where he appears to be unsuitable for the trust as when
to believe that he would squander said properties and the products thereof. 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
Q What is the order of preference in the appointment of an order of preference may be disregarded only when the reasons
administrator? therefore are positive and clear.
A When the appointment of an administrator is proper, the letters of
administration shall be granted in the order of preference as follows: Q Why are “next of kin” preferred after the surviving spouse?
1. to the surviving spouse A The “next of kin” are preferred after the surviving spouse since under
2. to the next of kin the statute of distribution (i.e. compulsory succession and intestate
3. in default of the surviving spouse or next of kin, then the person succession) they are entitled to the decedent’s property. Generally,
selected by them; the nearest of kin whose interest is more preponderant, is preferred in
the choice of administrator. Among members of a class, the strongest
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ground for preference is the amount of preponderance of interest. As in the City of Manila; and that B.E. Johannes, was indebted to a bank in
between next of kin, the nearest of kin is to be preferred. 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
Q Who are the creditors that may be appointed administrator? her estate. That there were no debts against the estate of the deceased.
A The term creditor within the meaning of the provision which entitles Upon the death of his wife, the B.E. Johannes was duly appointed as
creditors of a decedent to letters of administration is used in its usual administrator of her estate by the court at Singapore, and qualified and
acceptation as importing one whom the decedent owed. One is not a entered upon the discharge of his duties. After the decision was rendered
creditor within the rule unless the decedent was indebted to him by this court in case No. 18600, the B.E. Johannes came to Manila and
personally or unless, by operation of law, he becomes the legal owner of claims to have established a temporary residence at the Manila Hotel,
a claim against the decedent. Corollary when the status of a creditor based upon which, in legal effect, he asked for an order of court that
ceases, the right to administer the estate likewise ceases. Moreover, Alfred D'Almeida be removed as ancillary administrator, and that he be
when those to whom the estate would go under the law offer to pay the appointed.
claim of a particular creditor and tender the same, all reasons for giving The Singapore heirs opposed Alfred’s appointment. They
the creditor a preference in the appointment as administrator cease. 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
• As a creditor, it was appellant’s duty to present its claim Philippines and that an administrator in this jurisdiction is necessary.
within a reasonable time after the death of the decedent
in the estate proceedings, and if none were had, to file a ISSUE/S:
petition for letters of administration as authorized by Whether the appointment of an administrator over the estate in
the Philippines necessary? If yes, whether the court erred in appointing
Sec. 6(b), Rule 78. (Rio y Compania vs. Maslog)
the brother of the deceased who was a resident of Manila over the
husband who was in Singapore?
General Rule: the court cannot set aside the order of
preference under Sec. 6, Rule 78 HELD:
Exception: In case the person who have the preferential When a person dies intestate owning property in the country of
right to be appointed under the Rule are not competent or his domicile as well as in a foreign country administration is had in both
are unwilling to serve administration or they neglect to countries (that which is granted in the jurisdiction of the decedent’s last
apply for letters administration for 30 days after the domicile is termed the principal administration while any other
decedents death, the letters may be granted to such other administration is termed the ancillary administration). A grant of
person as the court may appoint. 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
• The Order of Appointment of Regular Administrator is Philippines.
final and appealable. It is almost a universal rule to give to the surviving spouse a
preference when an administrator is to be appointed unless for strong
30-day Period May be Waived reasons, it is deemed advisable to name someone else. Section 642 of the
• Just as the order of preference is not absolute and may Code of Civil Procedure (now Section 6, Rule 138) leaves this to the
be disregarded for valid cause despite the mandatory discretion of the court to determine, for it may be found that the surviving
tenor in the opening sentence of Rule 78 for its spouse is unsuitable for the responsibility. Moreover, non- residence is a
observance, so may the 30-day period be likewise factor to be considered in determining the propriety of the appointment
waived under the permissive tone in paragraph (b) of and in this connection, it is noted that the husband of the deceased (who
is) the administrator of the principal administration, resides in Singapore.
said rule which merely provides that said letters as an
It is the opinion of the court that the administration of the estate of the
alternative, “may be granted to one or more of the
deceased in the philippines could best be taken cared of by the brother
principal creditors.” who was also residing in the country rather than by the husband who was
in Singapore.
Q What is the extent of the grant of letters of administration? If the husband should come into this jurisdiction, the court
A The general rule universally recognized is that the grant of letters of would give consideration to his petition that he be named ancillary
administration extends only to the assets of a decedent found within the administrator for local purposes. Ancillary letters should be ordinarily be
state or country where it was granted so that an administrator granted to the domicillary representative if he applies therefore or to his
appointed in one state or country has no power over property in another nominee or attorney but the absence of express statutory requirement the
state or country. country may in its discretion appoint some other person.

Q What if the decedent died leaving properties in different


Q To whom are ancillary letters granted?
states or countries? A Ancillary letters may be granted in the Philippines according to the
A When a person dies intestate owning property in the country of his
order of preference stated in Section 6, Rule 78, if the person to be
domicile as well as in another country, administration to be had in both
appointed as ancillary administrator is residing in the Philippines and is
countries. That which is granted in the jurisdiction of the decedent’s last
not incompetent. Otherwise, ancillary letters may be granted to the
domicile is termed PRINCIPALLY DOMICILIARY ADMINISTRATION while
domiciliary representative, if he applies, therefore, or to his nominee
any other administration is termed ANCILLARY ADMINISTRATION
or attorney. There being no express statutory requirement on the
(Johannes vs. Harvey)
matter, the court may in its discretion appoint some other person.
JOHANNES v. HARVEY, 43 PHIL. 175 (1922)
Q What is the duty of the ancillary administrator?
A The duty of the ancillary administrator is to pay the claims of the
FACTS:
creditors if there be any, settle the accounts and remit the surplus to
B.E. Johannes is the husband of Carmen Theodora Johannes,
the domiciliary jurisdiction, for distribution among the next of kin.
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
Q What is the territorial extent of the appointment of the
and a citizen of Great Britain and an actual resident to Singapore; that Alfred
ancillary administrator?
D'Almeida is a brother of the deceased Carmen Theodora Johannes, and a
A The general rule universally recognized is that administration extends
bona fide resident of the City of Manila; that at the time of her death
only to the assets of the decedent found within the state or country
Carmen Theodora Johannes had P109,722.55 on deposit in one of the banks

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where it was granted so that an administrator appointed in one state or
country has no power over property in another state or country. FACTS:
Concordia Crisostomo, one of the nephew and nieces of the
deceased, Damasa Crisostomo, questioned the decision of the probate
RULE 79
court allowing its execution of the will. They claimed that the judgment
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY.
was obtained through fraud since they were not given personal notice of
PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION
the hearing.

Sec. 1. Opposition to issuance of letters testamentary; ISSUE/S:


Simultaneous petition for administration. - Any person interested Are the nephews and nieces entitled to notice?
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 HELD:
court, after hearing upon notice, shall pass upon the sufficiency of such NO. They are not entitled to notice because they have no legal interest
grounds. A petition may, at the same time, be filed for letters of in the case. In a civil action and special proceedings, unless otherwise
administration with the will annexed. 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
Q Who is an interested person? in the same way by the court’s judgment. But in this case, the interest is
A Any interested person is one who would be benefited by the estate, such purely contingent or dependent upon several uncertain and future events.
as an heir or one who has a claim against the estate such as a creditor.
Q What is the effect of the execution by an heir of a deed of
Q Who are the heirs deemed as interested persons? assignment of his rights and interests and participation in
the estate?
A Only forced heirs of the deceased are interested persons who are entitled
to intervene in order to protect their interest in so far as they may have A The rule is that every act intended to put an end to indivision among
been prejudiced by the will. Heirs who were not forced heirs of the co-heirs and legatees or devisees is deemed to be a partition, although
deceased have no right to any part of the property left by the testator it should purport to be a sale, an exchange, a compromise, or any
once he had disposed of the same by will. (Gutierrez del Campo vs. other transaction. It is for the reason that these transactions are in the
Varela Calderon) 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 does not lose her
standing in the probate court. (Gutierrez vs. Villegas)
In the matter of the estate of the deceased Francisco Varela In other words, if the settlement of the estate is already pending
Calderon. ANTONIO GUTIERREZ DEL CAMPO vs. MIGUEL VARELA before the probate court, mere assignment of one’s rights, interests
CALDERON, ET AL., and participation in the estate does not have the effect of losing one’s
G.R. No. L-39796 March 9, 1934 standing or right in the probate court whether such assignment has
been judicially approved. This is so because at the time of said
HELD: assignment, the settlement court had already acquired jurisdiction over
The deceased, Francisco Varela Calderon, was a bachelor and a the properties of the estate. As a result, any assignment regarding the
citizen of the Philippines. He died in Spain. At the time of his death, he left same has to be approved by the court. Since the approval of the court
no ascendants. However, he had brothers and sisters of the full blood and is not deemed final until the settlement of the estate is closed, the
illegitimate children. In his will, he left something to his illegitimate children assigning heir remains an interested person in the proceeding even
and nothing to his siblings. The executor named in the will presented a after said approval, which can be vacated.
project of partition in accordance with the probated will, which the trial court
approved. Hence, this appeal by the siblings, contending that the illegitimate IN THE MATTER OF THE INTESTATE ESTATE OF THE
children not having the status of natural children are entitled only to DECEASED IRENE SANTOS. JOSE D. VILLEGAS, Administrator,
support. ADELA SANTOS GUTIERREZ vs. JOSE D. VILLEGAS, and
RIZALINA SANTOS RIVERA, G.R. No. L-11848 May
ISSUE/S: 31, 1962
Whether the brothers and sisters could intervene.
FACTS:
HELD: Irene Santos died intestate, leaving as her only heirs her surviving
NO. they could not intervene because they are not forced heirs of the spouse Jose D. Villegas and two nieces — daughters of a deceased
deceased and therefore they have no right to any of the properties left by brother, Rizalina Santos Rivera and Adela Santos Gutierrez. Thereafter,
the testator, once he have disposed of them by will. Had any of them been Jose Villegas filed with the CFI of Rizal, a petition for Letters of
forced heirs, they would have been entitled to intervene and protect their Administration, and was appointed administrator of the estate. An
interest as far as they may have been prejudiced by the will. But it is evident unverified manifestation signed by Adela Gutierrez, accompanied by a
that they have not been injured or prejudiced in any manner whatsoever. public instrument entitled "Kasulatan ng Bilihan at Salinan" was presented
Only the forced heirs whose rights have been prejudiced have the right to to the Probate Court whereby Adela Gutierrez assigns her rights,
intervene in a case of this character. 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
Q What is the interest required to make a person a party? pleadings, motions, orders filed in court.
Adela later averred that the deed of assignment of her rights,
A Unless otherwise provided by law, in order that a person may be a party
participation and interest in the estate of Irene Santos and the first
in civil actions and special proceedings, the person’s interest must be manifestation were obtained thru fraud by Villegas were vitiated by
material and direct and not merely indirect or contingent so that he will mistake or undue influence. Villegas and Rizalina filed exceptions and/or
be materially benefited or injured by the court’s order or judgment. objections to the Manifestation, denying the allegations of fraud, undue
(Trillana vs. Crisostomo) influence and the like. Nevertheless, the lower court issued an order
declaring that although at the onset, Adela had the right to intervene as
TESTATE ESTATE OF THE DECEASED DAMASA CRISOSTOMO. one of the legal heirs, yet when she filed her deed of assignment, she had
NAZARIO TRILLANA vs. CONSORCIA P. CRISOSTOMO, ET AL
G.R. No. L-3378 August 22, 1951
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ceased to have any interest in the estate and until which such is annulled, deemed to be valid as against Cipriano and he is deemed to be without
her interest would merely be a contingent one. interest in the estate required for the petition for the settlement of said
estate.
ISSUE/S: The petition of Miguel, who sought to join Cipriano, is deemed to be
Whether Adela is an interested party 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
HELD: Josefina prayed to be appointed as administratrix, such did not amount to
Adela Santos Gutierrez is an indispensable party to the proceedings in a ratification of the petition for settlement as she did so only as an
question. Her interest in the estate is not inchoate, it was established at the alternative prayer, should her motion to dismiss fails.
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. Q Who may oppose the issuance of letters testamentary?
Although Adela had filed a manifestation dropping herself from the A Any person interested in a will may file an opposition to issuance of
proceedings and presenting therewith the supposed Deed of Assignment, letters testamentary.
the record, nevertheless fails to show that action thereon had been taken by • In order to be a party, a person must have material and
the probate Court. Every act intended to put an end to indivision direct, and not one that is only indirect and contingent,
among co-heirs and legatees or devisees is deemed to be a interest.
partition, although it should purport to be a sale, an exchange,
• The opposition may be accompanied by a Petition for
a compromise, or any other transaction.
the issuance of Letters of Administration with the will
Q What is the effect of such assignment? annexed.
A If the assignment took place when no settlement proceeding was Q Who is an interested person?
pending, the properties subject matter of the assignment were not under A An interested person is one who would be benefited by the estate,
the jurisdiction of a settlement court. Hence, there is no necessity of any such as an heir or one who has a claim against the estate, such as a
court approval. Consequently, the assigning heir is deemed to be left creditor.
without any interest in the estate and cannot subsequently petition for its
settlement. (Duran vs. Duran) Q Is it necessary for the person filing an opposition that he
₱ If the assignment is being assailed by the heir on the ground of fraud, himself be eligible or appointed?
lesion, etc, then the proper remedy is to rescind or annul the same in an A NO. Objection to the issuance of letters testamentary or of
action for that purpose. Pending the outcome of the action, his interest is administration can be made only by persons having interest in the
merely contingent. 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.

Q X died and was survived by his two sons, Y and Z. in his


DURAN vs. DURAN, 20 SCRA 379 will, X named Y as executor. Can Z, a minor, oppose the
appointment of Y on the ground that the latter is a
FACTS: drunkard?
Pio Duran died on February 28, 1961 without a will, leaving his wife, A YES. Z can oppose. His mere disqualification as a minor does not stop
Josefina, and several siblings and nephews and nieces. Cipriano Duran, one him from filing an opposition if he believes reasonable grounds thereof
of the surviving brothers executed a public instrument renouncing his rights exist.
to the decedent’s estate in favor of Josefina for the consideration of
₱2,500. Q Can a legatee file an opposition to the issuance of letters of
Later on, Cipriano filed an intestate proceeding with the CFI of Albay administration?
and sought to have himself appointed administrator. Josefina filed an A It has been declared that the legacy constituted in a will suffices to
opposition praying for its dismissal alleging that the petitioner was not an grant the legatee personality necessary to ask that appropriate
interested person in view of the above mentioned renunciation or for her measures be taken for the preservation of such rights as the legatee
appointment as administratrix. Cipriano replied alleging that Josefina was may have, should the will be eventually probated. This includes the
not the decedent’s wife and that the renunciation so executed was procured right to intervene in the manner of appointment of an administrator
through fraud with gross inadequacy of price and vitiated with lesion. whether special or regular.
Miguel, another brother, joined Cipriano as co- petitioner.
The CFI dismissed the petition. Hence this appeal with appellants Q In what form must an opposition be?
contending that via the case of In re Irene Santos, Cipriano is still an A The opposition must be in writing, signed by the applicant and stating
interested person as said case held that an assignment made by one heir to the facts essential to give the court jurisdiction over the case. It must
a co- heir amounts to a partition which needs the approval of the settlement state the grounds why letters testamentary should not issue to the
court. persons named therein as executors or any of them.

ISSUE/S: Q What issues must be raised by a party opposing the


Whether Cipriano is an interested person? issuance of letters of administration?
A An interested party may oppose the application of another for
HELD: administration by raising the issue of the right of the appellant to
NO. The situation contemplated in the Santos case is an assignment secure administration or by raising the issue of the existence of an
pendent elite. Therefore, the court in the said case has acquired jurisdiction estate to administer or that the applicant for letters of administration is
over the properties and such assignment should be approved by the incompetent on some ground specified by the statute or is not entitled
settlement court. to appointment.
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 Q Suppose X died and was survived by three, A, B and C. A
jurisdiction of the court. Hence, the assignment does not need court was named administrator of X’s estate. Thus, B filed an
approval to be effective between the parties. Should the assignment be opposition thereto. Does the opposition of B bind C, or does
alleged to be tainted with fraud, lesion or inadequacy of price, the proper C have to file a separate opposition?
remedy is to rescind or annul the same in an action for that purpose. A B’s opposition is binding upon C. Therefore, the latter does not have to
Therefore, until the assignment is properly rescinded or annulled, it is file another opposition. An objection raised by one party invites to the
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benefit of all parties interested in the subject, and it is unnecessary that Q How do you establish jurisdictional facts in court during the
each separately file the same objection petition for letters of administration?
A The following must be presented, established and marked as exhibits in
Q What must the court do when an opposition to issuance of court:
letters of testamentary is filed by an interested party? 1. order of notice;
A The court must: 2. affidavit of publication;
1. cause notice to be given to the executor, heirs/legatees 3. actual copies of newspapers where notice was published;
2. set date for hearing; and 4. registry return card/ sheriff’s return;
3. pass upon the sufficiency of such grounds during the hearing 5. death of decedent as evidenced by his death certificate

Q What is the effect of an objection to the appointment for Sec. 3. Court to set time for hearing. Notice thereof. - When a
administration? petition for letters of administration is filed in the court having jurisdiction,
A The objection stands as an answer to the petition for appointment and such court shall fix a time and place for hearing the petition, and shall
where objection has been duly made by a party in interest, the issuance cause notice thereof to be given to the known heirs and creditors of the
of letter should be suspended until the determination of the objection or decedent, and to any other persons believed to have an interest in the
its withdrawal. estate, in the manner provided in Sections 3 and 4 of Rule 76.

Q Explain the last sentence of Section 1. • Publication for 3 weeks and notice to heirs, creditors
A When a petition for probate of the will has been filed, Section 1 and other persons believed to have an interest in the
authorizes a person interested in the estate to estate is required before hearing
1. challenge the qualifications of the person nominated therein as
executor but, at the same time and in anticipation of such • Sec. 3 is Jurisdictional
disqualification,
2. file a petition for administration with the will annexed. Q What must the court do when a petition for letters of
administration is filed?
The court will thus have two petitions pending before it, but in the event the A The court must:
court approves the nomination of the executor, with the issuance of letters 1. fix the time and place for hearing the petition
testamentary to him, the petition for administration with the will annexed 2. cause the notice thereof to be given to:
must necessarily be denied. (a) known heirs of the decedent
(b) known creditors of the decedent and
Sec. 2. Contents of petition for letters of administration. - A (c) other persons believed to have an interest in the estate.
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 Q Is the order fixing the date for hearing for the appointment
residences of the creditors, of the decedent of an administrator appealable?
)3 The probable value and character of the property of the estate; A An order of a probate court fixing the date for the hearing of an
)4 The name of the person for whom letters of administration are application for appointment of an administrator of the estate of a
prayed. deceased person is NOT APPEALABLE. It is merely an interlocutory
But no defect on the petition shall render void the issuance of letters order. It simply gives the parties an opportunity to be heard and the
of administration. court an occasion for action.

Q What are the contents of a petition for letters of Q What kinds of notices are required to be made before the
administration? hearing of the petition for letters of administration?
A A petition for letters of administration must show, so far as known to the A The same notices required in the petition for probate of a will under
petitioner: Sections 3 and 4 of Rule 76 are required to be made in the petition for
1. The jurisdictional facts; letters of administration. Hence, there must be notice of the time and
2. The names, ages, and residences of the heirs, and the names and place of the hearing published 3 weeks successively previous to the
residences of the creditors, of the decedent time appointed, in a newspaper of general circulation in the province
3. The probable value and character of the property of the estate; where the court has jurisdiction. Notice of such must also be given to
4. The name of the person for whom letters of administration are the known heirs and creditors and any other persons who have an
prayed. interest in the estate who are residents of the Philippines, either by
₱ Note that the above provides for the same requirements when filing a registered mail or by personal service.
petition for probate or allowance of a will.
Q Why is there a need for such notices?
Q In a petition for letters of administration, what are the
jurisdictional facts which must be alleged?
A The purpose of the notices is to bring all interested persons within the
A In a petition for letters of administration (or petition for settlement of court’s jurisdiction so that the judgment therein becomes binding on all
intestate), the following jurisdictional facts must be alleged: the world. Where no notice has been given to persons believed to have
1. if the decedent is a resident of the Philippines, his last place of an interest in the estate of the deceased person the proceeding for the
residence which must be within the territorial jurisdiction of the settlement of the estate is void and should be annulled. The
court before whom the petition is brought; requirement as to notice is essential to the validity of the proceeding in
2. if the decedent is a non- resident, the place where he has an order that no person may be deprived of his right to property without
estate which must be within the territorial jurisdiction of the court due process of law. Verily, notice through publication is jurisdictional.
before whom the petition is brought; The absence of which makes court orders affecting other persons,
3. the names, ages and residences of possible heirs and creditors; subsequent to the petition void and subject to annulment. (De Guzman
4. the probable value of the estate; and vs. Angeles)

5. the name of the person for whom letters is prayed for. (De ₱ We must differentiate between the jurisdiction of the probate court
Guzman vs. Angeles) over the proceeding for the over the persons who are
administration of an estate interested in the settlement
of the estate.
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FACTS: To acquire jurisdiction, FACTS: To acquire jurisdiction, properties of the deceased person in the widow's favor, and to grant her
the filing of the petition before the notices by publication are essential. motion for assistance to preserve the estate of Manolito de Guzman.
court is necessary. If emergency situations threatening the dissipation of the assets of
an estate justify a court's immediately taking some kind of temporary
PEDRO DE GUZMAN vs. RTC Judge ZOSIMO Z. ANGELES; action even without the required notice, no such emergency is shown in
DEPUTY SHERIFFS JOSE B. FLORA and HONORIO SANTOS and this case. The need for the proper notice even for the appointment of a
ELAINE G. DE GUZMAN special administrator is apparent from the circumstances of this case.
G.R. No. 78590 June 20, 1988
• Where no notice as required by this section has been
FACTS: given to persons believed to have an interest in the
Elaine G. de Guzman filed a petition for the settlement of the intestate estate of the deceased person, the proceeding for the
estate of Manolito de Guzman, before the RTC of Makati. The petition settlement of the estate is void and should be
alleges that: (1) Manolito de Guzman died in Makati; (2) at the time of his annulled. (Eusebio vs. Valmores)
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 Sec. 4. Opposition to petition for administration. - Any interested
included in their conjugal partnership; (5) the estate of -the decedent has a person may, by filing a written opposition, contest the petition on the
probable net value which may be provisionally assessed at P4,000,000.00 ground of the incompetency of the person for whom letters are prayed
more or less; (6) the possible creditors of the estate, who have accounts therein, or on the ground of the contestant's own right to the
payable and existing claims against the firm — C. SANTOS Construction (7) administration, and may pray that letters issue to himself, or to any
the compulsory heirs of the decedent are the as the surviving spouse and competent person or persons named in the opposition.
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 Q What are the grounds for opposing a petition for
to ascertain whether the decedent left a last will and testament, none has administration?
been found and according to the best knowledge information and belief of A The following are the grounds for opposing a petition for
the petitioner; and (9) the petitioner as the survey surviving spouse of the administration:
decedent, is most qualified and entitled to the grant of letters of 1. incompetence of the person to whom letters are prayed; or
administration. 2. contestant’s right to administration;
Elaine filed a motion for writ of possession over 5 vehicles registered 3. the express requirement of the statute has not been complied
under the name of Manolito de Guzman, alleged to be conjugal properties of with.
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 Sec. 5. Hearing and order for letters to issue. - At the hearing of
co-owner and heir, the private respondent must have the possession of said the petition, it must first be shown that notice has been given as
vehicles in order to preserve the assets of her late husband. On the same hereinabove required, and thereafter the court shall hear the proofs of the
day, the lower court issued an order setting for hearing the motion and parties in support of their respective allegations, and if satisfied that the
directing the deputy sheriff to notify petitioner Pedro de Guzman at the decedent left no will, or that there is no competent and willing executor, it
expense of the private respondent. However, the hearing was postponed on shall order the issuance of letters of administration to the party best
motion of petitioner's counsel. entitled thereto.
In the meantime, Elaine filed her "Ex-Parte Motion to Appoint Petitioner
as Special Administratrix of the Estate of Manolito de Guzman." RTC Judge Letters of Administration will issue if it is proven that:
directed that all parties in the case be notified. However, no notice of the (a) Notice as required in Sec. 3 was given; and
order was given to De Guzman. Nevertheless, lower court granted the (b) The decedent left no will; or there is no competent
Elaine's motion to be appointed as special administratrix and ordered some and willing executor
military men and/or policemen to assist her in preserving the estate of
Manolito de Guzman. Q Is the order for the issuance of letters of administration
Trouble ensued when the respondents tried to enforce the above appealable?
order. The petitioner resisted when Deputy Sheriffs Jose B. Flora and
Honorio Santos tried to take the subject vehicles on the ground that they A The order for the issuance of letters of administration is
were his personal properties. De Guzman contends that the order is a patent APPEALABLE.
nullity, the respondent court not having acquired jurisdiction to appoint a ₱ Procedure is the same when filing a petition for probate
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 Q What must the oppositor establish?
consecutive weeks, as mandated by the Rules of Court. The petitioner also A The oppositor who seeks to be appointed as administrator must
stresses that the appointment of a special administratrix constitutes an establish:
abuse of discretion for having been made without giving petitioner and other 1. the incompetence of the executor named; and
parties an opportunity to oppose said appointment. 2. that he has a better right to the administration

ISSUE/S: Q What is the duty of the court then?


Whether a probate court may appoint a special administratrix and issue A If satisfied that decedent left no will and that there is no competent
a writ of possession of alleged properties of a decedent for the preservation and willing executor, it shall order the issuance of letters of
of the estate in a petition for the settlement of the intestate estate of the administration to the party entitled thereto.
said deceased person even before the probate court causes notice to be
served upon all interested parties. Sec. 6. When letters of administration granted to any
applicant. - Letters of administration may be granted to any qualified
HELD: applicant, though it appears that there are other competent persons
NO. Notice through publication of the petition for the settlement of the having better right to the administration, if such persons fail to appear
estate of a deceased person is jurisdictional, the absence of which makes when notified and claim the issuance of letters to themselves.
court orders affecting other persons, subsequent to the petition void and
subject to annulment. In the instant case, no notice as mandated by section Q To whom may letters of administration be granted?
3, Rule 79 of the Revised Rules of Court was caused to be given by the A Under Section 6 of this Rule, letters of administration may be granted
probate court before it acted on the motions of the private respondent to be to any qualified applicant
appointed as special administratrix, to issue a writ of possession of alleged
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Q Supposing Y, after filing a petition for letters of NATIVIDAD I. VDA. DE ROXAS vs. CFI Judge POTENCIANO
administration, was named as administrator of A’s estate by PECSON, MARIA ROXAS and PEDRO ROXAS
the probate court because X, who was named executor by A G.R. No. L-2211 December 20, 1948
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 FACTS:
such. What is the remedy of X? Pablo M. Roxas died leaving properties in Bulacan. Maria and Pedro
A File a motion to revoke in the same proceeding. Note however that if X Roxas, sister and brother respectively of the deceased, filed a petition for
had been notified, he would be bound by the order of the court the administration of the latter's estate. Maria Roxas was appointed
appointing Y as such. special administratrix upon an ex-parte petition. Natividad Vda. de Roxas,
₱ Note that an appointment of an administrator of a decedent’s estate is widow of Pablo M. Roxas, filed a petition for the probate of an alleged will
not void because another person seeking appointment has a better right of her deceased husband, and for her appointment as executrix of his
to such appointment. estate designated is said will. In said will the deceased bequeathed one-
₱ The acts of the person thus erroneously appointed as administrator is half of his estate to his widow, Natividad, and the other half to Reynaldo
valid. Where letters of administration have been granted on the estate of Roxas, an adulterous child 9 years old of the decedent. Upon agreement
a decedent to one not entitled to the appointment, the acts of such of both parties, the intestate proceeding was dismissed and ordered
administrator are valid although the order appointing such person may be closed by the court.
voidable in a direct proceeding instituted by those having a superior Respondents opposed to the probate of the will. Nevertheless,
right. This rule rests upon the doctrine that in such cases the essential Natividad was appointed, special administratrix and qualified as such over
basis of jurisdiction exists, and the appointment of the wrong person is the objection of the respondents Maria and Pedro Roxas, who sought the
but an irregularity subjecting the order to direct attack, but not appointment of Maria as such. The said respondents filed a motion for
invalidation acts done in pursuance of the law in the course of reconsideration of the order of the court appointing the petitioner as
administration by him who has been erroneously appointed. special administratrix, with an alternative prayer that Maria Roxas be
appointed as special co-administratrix, which motion was not acted upon.
Q May a creditor be appointed administrator? After hearing, respondent judge rendered a decision denying the
A If the heirs of the debtor do not institute an estate proceeding to settle probate of the will presented by Natividad on the ground that the attesting
his estate and fails to apply for letters of administration, a creditor may witnesses did not sign their respective names in the presence of the
institute said estate proceeding and apply for letters of administration so testator, from which the petitioner has appealed, and the appeal is now
that his claim for money may be settled. pending.
Maria and Pedro Roxas renewed their petition for the appointment of
Maria Roxas as special administratrix or special co-administratrix.
Respondent judge rendered his resolution appointing the petitioner
Natividad I. Vda. de Roxas as special administratrix only of all the conjugal
properties of the deceased, and Maria Roxas as special administratrix of all
capital or properties belonging exclusively to the deceased Pablo M.
Roxas.
RULE 80
ISSUE/S:
SPECIAL ADMINISTRATOR
Whether the CFI judge acted in excess of its jurisdiction in appointing
two special administrators.
Sec. 1. Appointment of special administrator.- When there is
delay in granting letters testamentary or of administration by any cause HELD:
including an appeal from the allowance or disallowance of a will, the court Respondent judge acted in excess of the court's jurisdiction in
may appoint a special administrator to take possession and charge of the appointing two separate special administratices of the estate of the
estate of the deceased until the questions causing the delay are decided decedent: one of the conjugal or community property and another of the
and executors or administrators appointed. capital or exclusive property of the deceased Pablo M. Roxas.
The administrator appointed to administer and liquidate the exclusive
Q What are Special Administrators? property of a deceased spouse shall also administer, liquidate and
A Special Administrators are officers of the court subject to the supervision distribute the community property, because the estate of a deceased
and control of the probate court and are expected to work in the best spouse which is to be settled, that is, administered, liquidated and
interest of the entire estate, its smooth administration and its earliest distributed, consists not only of the exclusive properties of the decedent,
settlement. 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
Q When may a special administrator be appointed? accordance with the provisions of articles 1421 to 1424 of the Civil Code.
A There are two instances when a special administrator may be appointed: There is absolutely no reason for appointing two separate
administrators, specially if the estate to be settled is that of a deceased
1. when there is delay in the appointment of the regular
husband as in the present case. If two separate administrators are
administrator (Section 1, Rule 80; Fule vs. CA)
appointed as done in the present case, in every action which one of them
2. when the executor or administrator has a claim against the estate may institute to recover properties or credit of the deceased, the
he represents. The special administrator administers only the defendant may raise the question or set up the defense that the plaintiff
portion over which there is such a claim (Section 8, Rule 86; has no cause of action, because the property or credit in issue belongs to
Relucio vs. San Jose) 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.
Q May 2 or more special administrators be appointed at the As under the law only one general administrator may be appointed to
same time? administer, liquidate and distribute the estate of a deceased spouse, it
A Under the law, only one general administrator may be appointed to clearly follows that only one special administrator may be appointed to
administer temporarily said estate, because a special administrator is but a
administer, liquidate and distribute the estate of the decedent. It clearly
temporary administrator who is appointed to act in lieu of the general
follows that one special administrator may be appointed to administer
administrator.
temporarily said estate because a special administrator is but a
The appointment of a special administrator is of the discretion of the
temporary administrator who is appointed in lieu of the general
court, which must sound, that is, not whimsical or contrary to reason,
administrator. (Roxas vs. Pecson)
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
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administrator under section 1, Rule 81, as well as the statutory provisions as aforementioned provision of the Rules of Court to the surviving spouse
to causes for removal of an executor or administrator under section 2, Rule refers to the appoint of a regular administrator or administratrix, not to
83, do not apply to the selection or removal of special administrator. 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 Is the preference accorded by Section 6 of Rule 78 in the Q What then is the basis for the appointment of a special
appointment of an administrator applicable to the administrator?
appointment of a special administrator? A As the law does not say who shall be appointed as special
A Discretionary. It may not be amiss to note that the preference accorded administrator and the qualifications the appointee must have, the judge
has discretion in the selection of the person to be appointed, discretion
by the aforementioned provision of the Rules of Court to the surviving
which must be sound that is not whimsical or contrary to reason,
spouse refers to the appoint of a regular administrator or administratrix,
justice or equity.
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
Q May the judge nevertheless, use the preference in the
appealable. (Pijuan vs. Vda. De Gurrea)
appointment of regular administrator as basis for the
appointment of a special administrator?
TESTATE ESTATE OF THE DECEASED CARLOS GURREA Y
A The fact that the judge is granted the discretion does not authorize him
MONASTERIO. MARCELO PIJUAN vs. MANUELA RUIZ VDA. DE
to become partial or to make his personal dislikes and likes prevail over
GURREA,
his passions to rule his judgment and there is no reason why the same
G.R. No. L-21917 November 29, 1966
fundamental and legal principles governing the choice of a regular
administrator should not be taken into account in the appointment of a
FACTS:
special administrator. After all, the consideration that overrides all
Manuela Ruiz and Carlos Gurrea were married in Spain, where they
others in this respect is the beneficial interest of the appointee in the
lived together until 1945, when he abandoned her and came, with their son
estate of the decedent.
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
Q Is the order appointing a special administrator appealable?
later, that his father was residing in Pontevedra, Negros Occidental, Manuela
A The order appointing a special administrator is an INTERLOCUTORY
came to the Philippines; but, Carlos Gurrea refused to admit her to his
ORDER and NOT APPEALABLE.
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
Q What is the remedy of a party aggrieved by an order
granting Mrs. Gurrea a monthly alimony, pendente lite, of P2,000.00 which
granting a special administrator?
was later reduced to P1,000.00.
A A PETITION FOR CERTIORARI based on grave abuse of discretion. But
Carlos Gurrea died 2 years after, leaving a document purporting to be
such will not hasten the settlement of the estate.
his last will and testament, in which he named Marcelo Pijuan as executor
thereof and disinherited Mrs. Gurrea and their son, Teodoro. Soon
Q May the court moto proprio appoint a special administrator?
thereafter, Pijuan instituted Special Proceedings in the CFI of Negros
A It seems that a special administrator may be appointed upon
Occidental, for the probate of said will. Thereafter Pijuan was, upon his ex
1. the application of any interested parties; as well as
parte motion, appointed special administrator of the estate, without bond.
2. by the court upon its own motion without notice to the parties.
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
Regular Administrator Special Administrator
deceased.
Mrs. Gurrea filed in the special proceedings a motion alleging that the Order of Appointment is FINAL and Order of appointment is
aforementioned alimony, pendente lite, of P1,000 a month, had been is APPEALABLE INTELOCUTORY and is NOT
suspended upon the death of Carlos Gurrea, and praying that the Special APPEALABLE
Administrator be ordered to continue paying it pending the final One of the obligations is to pay the Cannot pay the debts of the estate
determination of the case. This motion having been denied, Mrs. Gurrea debts of the estate
moved for a reconsideration thereof. She also moved for her appointment as Appointed when decedent died Appointed when there is delay in
administratrix of the estate of the deceased. Motion for reconsideration was intestate or did not appoint an granting letters testamentary or
denied. The lower court, likewise, denied, for the time being, the motion of executor in the will or will was administration or when the
Mrs. Gurrea for her appointment as administratrix, in view of the provision disallowed executor is a claimant of the estate
of the will of the deceased designating another person as executor thereof.
Hence this appeal from said orders.
Sec. 2. Powers and duties of special administrator. - Such
ISSUE/S: special administrator shall take possession and charge of goods, chattels,
Whether Manuela should have been appointed administratrix rights, credits, and estate of the deceased and preserve the same for the
executor or administrator afterwards appointed, and for that purpose may
HELD: commence and maintain suits as administrator. He may sell only such
Mrs. Gurrea contends that as widow of the deceased, she has a right of perishable and other property as the court orders sold. A special
preference under Section 6 of Rule 78 of the Revised Rules of Court. administrator shall not be liable to pay any debts of the deceased unless
However, this preference exists "if no executor is named in the will or the so ordered by the court.
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 • Special administrators are officers of the court and
the case at bar. The deceased Carlos Gurrea has left a document purporting while they may have respective interests to protect,
to be his will, seemingly, is still pending probate. So, it cannot be said, as they are officers of the Court subject to the supervision
yet, that he has died intestate. Again, said document names Marcelo Pijuan and control of the Probate Court and are expected to
as executor thereof, and it is not claimed that he is incompetent therefor.
work for the best interest of the entire estate, its
What is more, he has not only not refused the trust, but, has, also,
smooth administration, and its earliest settlement.
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 Q What are the powers and duties of a special administrator?
A The following are the powers and duties of a special administrator:
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1. take possession and charge of the goods, chattels, rights, credits Sec. 1. Bond to be given before issuance of letters; Amount;
and estate of the deceased Conditions. - Before an executor or administrator enters upon the
2. preserve the goods, etc. of the deceased for the executor or execution of his trust, and letters testamentary or of administration issue,
administrator afterwards appointed he shall give a bond, in such sum as the court directs, conditioned as
3. commence and maintain suits as administrator follows:
4. sell such perishable and other properties AS THE COURT ORDERS (a) To make and return to the court,
SOLD within three (3) months, a true and complete inventory of all goods,
5. prepare and submit an inventory of the estate chattels, rights, credits, and estate of the deceased which shall come
6. render an accounting of administration to his possession or knowledge or to the possession of any other
7. Pay debts ONLY as may be ordered by the court. person for him;
(b) To administer according to these
• While the ROC does not fix a period within which the rules, and, if an executor, according to the will of the testator, all
special administrators should submit an inventory of the goods, chattels, rights, credits, and estate which shall at any time
estate, it cannot be denied that such duty has to be come to his possession or to the possession of any other person for
performed within a reasonable period, if not as soon as him, and from the proceeds to pay and discharge all debts, legacies,
and charges on the same, or such dividends thereon as shall be
practicable, in order to preserve the estate and protect
decreed by the court;
the heirs of the deceased.
(c) To render a true and just
account of his administration to the court within one (1) year, and at
Q May the special administrator be sued by a creditor for the any other time when required by the court;
payment of a debt of the deceased? (d) To perform all orders of the
A The Special Administrator cannot be sued by a creditor for the payment court by him to be performed.
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 Q Why is bond required before an executor or administrator
defendant in a suit against the estate where the creditor would be enters upon the execution of his trust?
prejudiced by the adverse effects of the running of the statue of A The bond posted by administrators and executors is intended as an
limitations against them if the appointment is delayed. 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
Q If you are a creditor, what is your remedy if you already have the part of the administrator or executor. In other words, the bond is
a decision in your favor? answerable for any failure on the part of the administrator or executor
A As a creditor with a decision in my favor for the payment of my credit, I to fulfill any conditions imposed upon him in the execution of his trust.
will apply for an order directing the special administrator to pay the
credit. Q What is the effect of the failure to give bond?
A While the failure of the duly appointed executor or administrator to
Sec. 3. When powers of special administrator cease; Transfer give the required bond may prevent the granting of letters
of effects; Pending suits. - When letters testamentary or of testamentary or of administration in most jurisdictions, such failure
administration are granted on the estate of the deceased, the powers of does not render void the letters of administration granted prior to the
the special administrator shall cease, and he shall forthwith deliver to the filing of the bond. Said letters are for this reason, only irregular and
executor or administrator the goods, chattels, money, and estate of the voidable and therefore, are not subject to collateral attack, but merely
deceased in his hands. The executor or administrator may prosecute to give ground for appeal. The administration of an estate is considered
final judgment suits commenced by such special administrator. suspended until the person appointed executor or administrator files
the proper bond.
Q Are the grounds for removal of the regular administrator
applicable to the special administrator? Q Is the executor or administrator liable for all losses
A The statutory provisions as to causes for removal of an executor or suffered by the estate under his administration?
administrator DO NOT APPLY to removal of a special administrator. The A The standard of responsibility of the executor or administrator is best
appointment and removal of a special administrator lies entirely in the measured as in essence the responsibility of the bailee. Like any bailee,
sound discretion of the court. The sufficiency of any ground for he must pursue his discretion honestly and in good faith, or he will
removal should thus be determined by the court whose sensibilities are in become personally liable to those who are interested in the estate for
the first place, affected by an act in disregard of the rules or orders of waste, conversion or embezzlement. But where an administrator,
the court. entrusted with the carrying on of an estate, acts in good faith and in
accordance with the usual rules and methods obtaining in such
Q What is the nature of the office of the special administrator? business; he will not be held liable for losses incurred. The law does
A Since a special administrator is assigned by the court, he is an officer of not impose upon the administrator or executor a high degree of care in
the court. 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.
Q When does the power of a Special Administrator Cease?
A After the questions causing the delay are resolved and letters are granted When Filed:
to regular executor or administrator Before an executor or administrator enters upon the
execution of his trust.
• It is possible for the executor or administrator whose Amount:
appointment is challenged by appeal to be appointed To be fixed by the court.
also as the special administrator pending such appeal.
There is no hard in appointing the same person as Q What are the duties or the conditions imposed on the
special administrator because there is a vast difference executor or administrator?
between the powers and duties of the two positions. 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
RULE 81 complete inventory of all goods, chattels, rights and estate of
BONDS OF EXECUTORS AND ADMINISTRATORS the deceased, which shall come to his possession or knowledge
or the possession of any other person for him in accordance

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Ronald Chua
with the Rules of Court and in case of an executor, in accordance HELD:
with the will of the testator NO. The standard of responsibility of the administrator is best
2. to pay and discharge all debts, legacies and charges on the measured as in essence the responsibility of a bailee. Like any bailee, he
estate, or such dividends thereon as shall be declared by the must pursue his discretion honestly and in good faith, or he will become
court from the proceeds of the administration; personally liable, to those who are interested in the estate, for waste,
3. to render a true and just account of his administration within 1 conversion, or embezzlement. But where an administrator, entrusted with
year and at any other time when required by the court; and the carrying on of an estate, acts in good faith and in accordance with the
4. to perform all orders of the court 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
Administrator’s Bond – Statutory Bond former administrator and the sureties on his bond for losses incurred by
• Conditions prescribed by statute forms part of bond the estate during his administration, has not been proved.” That the
agreement losses sustained by the estate resulted from the risk necessarily attending
the operation of the two stores, is a much more reasonable assumption.
• Terms and effectivity of bond does not depend on
YES. The administrator is accountable on his bond along with the
payment of premium and does not expire until the sureties for a good and true inventory of all the property of the estate
administration is closed. As long as the probate court which comes into his possession or of which he has knowledge
retains jurisdiction of the estate, the bond contemplates
a continuing liability. (luzon surety vs. Quebrar). Q Who determines where certain properties should or should
not be included in the inventory?
Q What must the inventory to be made by the executor or A Though questions of title to real property can not be determined in
administrator contain? in/testate proceedings, it is now established that for the purpose of
A It must be observed that the inventory to be made and returned by an determining whether a given property should be included in the
executor or administrator must contain the following statements: inventory, the probate court may pass upon title thereto, though such
1. all the properties of the deceased which have come to his determination is not conclusive and is subject to the final decision in a
possession separate action between the parties.
2. all the properties as may have come to his knowledge
Although he is not chargeable with the administration of the estate which Q What is the purpose of administration?
has not come to his possession, he is however accountable for a true and A The purpose of administration is the liquidation of the estate and
complete inventory of all the properties which has come to his knowledge. distribution of the residue among the heirs, legatees and devisees.
(Tan vs. Go Chiong Lee) Liquidation means determination of all the assets of the estate and
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
MAXIMINA TAN, administratrix of the property of the deceased all the debts of the deceased and expenses of administration with the
Go Bung Kiu vs. GO CHIONG LEE, TIO LIOK, AND CHANGCO and view to an early distribution of the remainder amount the persons are
MANUEL GO TIANUY, entitled thereto. The policy of these rules is to close up the estate as
G.R. No. 21969 September 25, 1924 promptly and as economically as possible.

FACTS: Q In the determination of the estate, may the executor or


During the lifetime of the deceased Go Bung Kiu, Go Chiong Lee was administrator bind the estate by borrowing money or
his encargado. Go Bung Kiu died in China. 9 days after, Go Chiong Lee was mortgaging any of the properties of the estate to secure a
appointed special administrator of the estate, with Tio Liok, Ang Changco, debt or to obtain a loan?
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
A Neither the executors or administrators may bind the estate when they
borrow money or mortgage any of the properties of the estate to
administrator. On the same date, Go Chiong Lee filed a motion in which he
secure a debt or to obtain a loan. UNLESS specially authorized by will.
prayed that he be allowed to operate 2 stores belonging to the estate, one
the statute grants no power to an administrator to borrow money upon
in the City of Cebu and the other in the municipality of Toledo, Cebu. The
a mortgage of the real estate of the decedent, is not controverted.
court granted the administrator the authority to which he asked on the
Indeed, such an act is foreign to the policy and purpose of
condition that he makes monthly reports to the court. Another bond also in
administration, which aims to close up, not to continue an estate.
the amount of P30,000 and with the same sureties was filed by the
(Sociedad de Lizzaraga Hermanos vs. Abada)
administrator, and letters of administration were issued in his favor. Go
Chiong Lee continued to discharge his duties administrator until he was
SOCIEDAD DE LIZARRAGA HERMANOS vs. FELICISIMA ABADA,
relieved by Maximina Tan. During this period, the administrator filed one
ET AL. G.R. No. 13910 September 17, 1919
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,
FACTS:
and still a third and final report.
Francisco Caponong died, owing the plaintiffs a sum of money which
After Chiong Lee was relieved, an accounting was done on the estate
was then less than the amount allowed by the commissioners. His widow,
by the private accountant and based on these investigation, it was found
Felicisima Abada, was appointed administratrix of the estate,
that the estate suffered a loss of over ₱19,000 under the administration of
commissioners to appraise the estate and to pass on the claims against
Chiong Lee. Tan now filed an action to recover from Chiong Lee, based on
the estate were duly appointed, and plaintiffs presented their claim which
the four cause of action. The first was to recover the amount lost during his
was allowed by the commissioners in the sum of P12,783.74.
administration and the second for the recovery of the 850 sacks of courn
The administratrix leased the hacienda known as "Coronacion" to
which Lee allegedly failed to inventory.
Hilario Zayco for a term of years, but afterwards she married Vicente
The lower court found for Tan in the 2 causes of action. One of the
Alvarez, one of the defendants, and the lease was transferred to Alvarez
grounds upon which the said court ruled in favor of Tan with respect to the
by Zayco.
first cause of action, is the failure of Lee to render the monthly reports made
Nearly 7 years after the death of Caponong, the plaintiffs herein filed
a condition of his appointment as administrator.
a suit in the CFI of Occidental Negros against Felicisima Abada personally
and as administratrix of the estate of Francisco Caponong, alleging that
ISSUE/S:
Francisco Caponong owed plaintiffs P12,783.74, and that Felicisima Abada
Whether Chiong Lee could be held liable for the losses suffered by the
in her own name and as administratrix, had been receiving from the
estate
plaintiffs money and effects from 1908 to 1912 which money and effects

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Ronald Chua
were used by the defendant in "the expense of cultivation and the an administrator for the extensive administration of the estates of the
exploitation of the Hacienda 'Coronacion,' "and that defendant had delivered decedent cannot be considered “expenses of administration.”
to plaintiffs the sugar produced until the last crop which she refused to That the statute grants no power to an administrator to borrow
deliver to them. And that due to drought and poor crops of the farm and money upon a mortgage of the real estate of the decedent, is not
after deducting for the sugar delivered, the account of the defendant controverted. Indeed, such an act is foreign to the policy and purpose of
showed a balance in favor of plaintiffs of P62,437.15; that of this amount administration, which aims to close up, not to continue an estate
they were informed the defendant recognized as due from the estate only Although the mortgage was made by the administrator approved by
"about P14,000" which however had not been paid; that it had been agreed the CFI, still this approval cannot render valid the void acts of an
by Francisco Caponong that the "amounts" taken should draw interest at the administrator.
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. Q How should the administration of estates be settled?
Defendant admits she owed P8,555.78 as administratrix, and alleges A In this connection, Section 15, Rule 88 provides that debts and legacies
that the balance was due by her personally. While the guardian of the minor of the deceased should be paid within 1 year which may be extended
children of Francisco Caponong denied the claim under oath, and alleged to 2 years if circumstances so require.
that the estate of Francisco Caponong did not owe plaintiffs anything.
Nevertheless, the parties, including the guardian of the minors, Q What is the effect of the executor or administrator’s failure
presented a motion in court stating that they had made an amicable to close up the estate within the period prescribed by the
settlement of the litigation, and prayed the court to dismiss the action, rules?
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,
A All courts should exert themselves to close up estates within twelve
months from the time they are presented, and they may refuse to
which was to be paid with 10% interest in 7 equal annual installments;" and
allow any compensation to executors and administrators who do not
to secure this debt, the defendants agreed to give plaintiffs a first mortgage
actively labor to that end, and they may even adopt harsher measures.
on all the property of Francisco Caponong, except the growing sugar cane,
(Sociedad de Lizzaraga Hermanos vs. Abada)
and on all the property belonging exclusively to Felicisima Abada, and the
The harsher measure may be the removal of the executor or
defendants agreed to secure judicial approval of the settlement. The
administrator in accordance with Section 2 Rule 82 or his liability for
defendants also agreed to mortgage the carabaos then on the hacienda to
damages under Section 5, Rule 85.
plaintiffs. The compromise was approved by the court as well as the
There can be no legal excuse for delaying the closure of administration
mortgage. However, the mortgage given was not recorded in the registry of
to more than 2 years and a half, as provided in Section 16, Rule 88.
property up to time of the institution of this suit.
Coming now to the present action, the plaintiffs allege that defendants
Q In the administration of the estate, is the administrator or
failed to pay the first 2 installments and that they refused to sign the
executor authorized to continue the business in which the
agreement mortgaging the carabaos with the object and intent of reducing
decedent was engaged at the time of his death?
the security of plaintiffs. They also alleged that defendants were about to
transfer their property not mortgaged. Thus, they prayed for an attachment A An executor or administrator ordinarily has no power to continue the
on property of defendants not to exceed P20,000 in value, and for judgment business in which the decedent was engaged at the time of his death;
for P90, 383.49 with interest, and that if this amount should not be paid that and this is true although he acts in the utmost good faith and believes
the mortgaged property be sold, and if not sufficient to pay the debts, that that he is proceeding for the best interests of the estate. The penalty
the property levied on under the attachment be sold. for continuing a business of the decedent without authority is the
The court granted the attachment order and the provincial sheriff imposition of a personal liability on the executor or administrator so
attached one parcel of land, the growing crops, certain products of the soil, doing for all debts of the business. The normal duty of the personal
and various animals. Plaintiffs later filed a motion in court alleging that the representative in reference to such business is limited to winding it up,
property mortgaged to secure their debt was not sufficient to secure the and even where the beneficiaries are infants the court cannot authorize
debt; that defendants, with the intention of prejudicing the interest of the the administrator to carry on the trade of the decedent. So great a
plaintiffs, were negligent in the conservation and care of the property, and breach of trust is it for the representative to engage in business with
they asked the court to appoint a receiver for the property that was the funds of the estate that the law charges him with all the losses
mortgaged. The court granted this motion, as to all the property attached, thereby incurred without on the other hand allowing him to receive the
and extended the receivership to all the mortgaged property. benefit of any profits that he may make, the rule being that the
The defendants, Felicisima Abada, administratrix, and Januario persons beneficially interested in the estate may either hold the
Granada, the guardian, filed an amended answer in which they allege, representative liable for the amount so used with interest, or at their
among others, that the compromise agreement and the mortgage executed election take all the profits which the representative has made by such
in conformity therewith made a part of the complaint, were obtained unauthorized use of the funds of the estate. (Wilson vs. Rear)
through fraud and false representation and thus be declared null and void
and the unwarranted appointment of a receiver for property already in In the matter of the Estate of Charles C. Rear, deceased. J.J.
custody of the court, through the administratrix. WILSON, administrator- appellee vs. M. T. REAR, ET AL.,
Based on these, the CFI largely sustained the defendant’s claim and G.R. No. L-31860 October 16, 1930
ruled that the plaintiffs pay them certain damages. The attachment was
dissolved and the receiver discharged and was ordered to return the FACTS:
property to the defendants. Judgment was given to the plaintiffs to recover Charles C. Rear was murdered by some Moros on his plantation
from the defendant- administratrix the sum of ₱8,555.78 with interest. A in an isolated place in Cotabato. J.J. Wilson qualified as special
personal judgment was also given to plaintiffs against defendants for administrator of the estate. Later, the property of the estate was
₱79,970.21. Both parties appealed, the defendants claiming for more appraised at P20,800, of which the commissioners filed an inventory and
damages and the plaintiffs alleging errors of the trial court. 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
ISSUE/S: was claimed and alleged that the administrator did not have any funds to
Whether the administratrix had the power to borrow money upon a pay the court ordered the administrator to sell a portion of the property.
mortgage of the real estate of the deceased? 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
HELD: closing the administration. The court granted this petition, and after due
NO. The expense of the administration should be those necessary for notice, the public sale took place, and the property was sold to Wm.
the management of the property for protecting it against destruction or Mannion for P7,600. Wilson submitted a report covering his administration
deterioration and possibly for the production of fruits. The sum extended by 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
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amended, to which the heirs made numerous and specific objections, and administrator, in good faith, spent and which he is unable to repay.
after a hearing, the court approved the account as filed. The heirs claimed (Montemayor vs. Heirs of Gutierrez, L-16959, January 30, 1962)
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 Q In the proceeding against the bond, is the surety entitled
were contrary to law and not legal charges against the estate since there to notice?
was no authority granted by the court; (3) the court erred in admitting A The surety is not entitled to notice of the proceeding against the
Exhibits D, E and F; and (4) Wilson was neglectful, imprudent and wasteful. administrator but he may be allowed to intervene if he asks for leave to
do so in due time.
ISSUE/S:
Whether Wilson properly performed his duties as special Sec. 2. Bond of executor where directed in will. When further
administrator 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
HELD: NO. the court to give bond in such sum and with such surety as the court
)1 From 1925-1927, Wilson never made any report, filed any account for or approves conditioned only to pay the debts of the testator; but the court
obtain a court order of any nature. The attention of the court was called may require of the executor a further bond in case a change in his
for the first time when the commissioners filed a claim for their fees. circumstances, or for other sufficient cause, with the conditions named in
)2 From the final account, it appeared that at the time of Rear’s death, the the last preceding section.
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 Q May the testator exempt an executor from the requirement
₱2,377.42. however, it appeared that Wilson continued the operation of posting a bond by providing for such in his will?
of the plantation and the employment of Fleming as manager with a A Even if the testator has provided in his will that his executor serve
salary of ₱200 a month and a large number of men. The net result of without bond, the court may still require him to file a bond conditioned
this was that all of the property of the estate was consumed, lost or only to pay the debts of the testator, and thereafter, based on the
destroyed, leaving a deficit against the estate of ₱1,809.69. circumstances, the court may require further bond from said executor
)3 Since Wilson was appointed and qualified as administrator, the law to answer for breaches in his administration.
imposed upon him legal duties and obligations, among which was to
handle the estate in a business- like manner, marshal its assets and Sec. 3. Bonds of joint executors and administrators. - When two
close the estate, without any reasonable or unnecessary delay. Without or more persons are appointed executors or administrators the court may
a specific showing or an order of the court, an administrator does not take a separate bond from each, or a joint bond from all.
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 Sec. 4. Bond of special administrator. - A special administrator
estate in the payment of operating expenses. before entering upon the duties of his trust shall give a bond, in such sum
)4 Even though the law does not impose upon the administrator a high as the court directs, conditioned that he will make and return a true
degree of care in the administration of the estate, it does not impose inventory of the goods, chattels, rights, credits, and estate of the
upon him the ordinary and usual care, for want of which he is personally deceased which come to his possession or knowledge, and that he will
liable. So great a breach of trust is it for the representative to engage in truly account for such as are received by him when required by the court,
business with the funds of the estate that the law charges him with all and will deliver the same to the person appointed executor or
the losses thereby incurred without on the other hand allowing him to administrator, or to such other person as may be authorized to receive
receive the benefit of any profits that he may make. them.
)5 An exception would be when, in order to settle an estate the personal
representative may, in some cases , be permitted to continue a business Q What are the conditions of a special administrator’s bond?
for a reasonable time. Even in such cases the personal representatives A The following are the conditions of a special administrator’s bond:
are not, however, entitled to embark in the business more of the 1. he will make and return a true inventory of the estate of the
testator's property than was employed in it at his death. deceased which comes to his possession or knowledge;
)6 Considering the fact that Wilson's home and place of business was 300 2. he will truly account for such as are received by him when
kilometers from the plantation (it was in Zamboanga), and that in the required by the court;
very nature of things, he could not give the business of the estate his 3. he will deliver the same to the persons appointed executor or
personal attention, we are disposed to be more or less lenient, and to administrator or to such other person as may be authorized to
allow him the actual operating expenses of the plantation for the first receive them.
eight months of his appointment amounting to P2,257.45. Although the
expense account of the administrator and the claims of the
Note: The bond is effective as long as the court has
commissioners are somewhat high, we are also disposed to allow those
jurisdiction over the proceedings.
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 RULE 82
₱3,839.22. REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION,
AND REMOVAL OF EXECUTORS AND ADMINISTRATORS
Q What is the degree of care required in the administration of
decedent’s estate?
Sec. 1. Administration revoked if will discovered; Proceedings
A The standard of responsibility of the administrator is best measured as thereupon. - If after letters of administration have been granted on the
that of a bailee. Like any bailee, he must pursue his discretion honestly estate of a decedent as if he had died intestate, his will is proved and
and in good faith, or he will become personally liable to those who are allowed by the court, the letters of administration shall be revoked and all
interested in the estate for waste, conversion or embezzlement. powers thereunder cease, and the administrator shall forthwith surrender
the letters to the court, and render his account within such time as the
Q May the bond be bound for the return of the money which court directs. Proceedings for the issuance of letters testamentary or of
the administrator spent in good faith and which he is unable administration under the will shall be as hereinbefore provided.
to repay?
A A surety on an administrator’s bond is bound only for the faithful Q When may letters of administration issued by a court be
administration of the estate and not for the return of money which the revoked?
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A The following are the circumstances when letters of administration issued 2. neglects to settle the estate according to these rules;
by a court can be revoked: 3. neglects to perform an order or judgment of the court;
1. when a newly discovered will has been admitted to probate after 4. neglects to perform a duty expressly provided by these rules;
the issuance of letters of administration, such letters of 5. absconds
administration may be revoked; and 6. becomes insane or otherwise incapable or unsuitable to
2. when letters of administration have been issued illegally or discharge the trust
without jurisdiction, such letters of administration may be revoked
by the probate court Other Valid Grounds for Removal:
(7) Adverse interest of an administrator to that of the
• When letters revoked and powers cease: When the estate
decedent’s will is allowed and proved by the court after (8) Physical inability and consequent unsuitability to
the issuance of letters of administration. manage the estate
• (9) False representation by an administrator in securing
Q What are the effects of such revocation are as provided for his appointment
by Section 1, Rule 82?
A The effects of such revocation are as provided for by Section 1, Rule 82 Note: The Order of Removal is appealable.
are the following:
1. all powers of administration shall cease;
2. the administrator shall forthwith surrender his letters to the court;
3. the administrator shall render his account within such time as the Degree of Diligence Required
court directs; and • An administrator is required to exercise reasonable
4. proceedings for the issuance of letters testamentary or of diligence and act in entire good faith in the
administration under the will shall be had performance of that trust.

Duty of Administrator upon Revocation of the Q How soon must the executor or administrator render his
Letters account?
(1) Surrender the letters to the court; or A Under Section 8, Rule 85, “Every executor or administrator shall render
(2) Render his account within such time as the court may an account of his administration within one (1) year from the time of
direct. receiving letters testamentary or of administration, unless the court
otherwise directs…” In connection with this, in one case, an
Q Does the mere discovery of a document purporting to be a administrator filed his 1st account 2 years after his appointment as
will ipso facto authorize the revocation of letter of such, and his 2nd account after the next years. The 2nd account was
administration? disapproved and he was ordered to file an amended account within 30
A NO. Mere discovery of a document purporting to be a will and testament days. Despite an extension of 10 days after the lapse of the 30- day
of the decedent after appointment of an administrator upon the period, he still failed to file the required amended account, and he filed
assumption that the decedent died intestate, does not, in view of Section the old account without change. This and some irregularities found in
1, Rule 82 ipso facto nullify the letters already issued or even authorize his accounting were held to be sufficient grounds for his removal since
their revocation until the will has been proved and allowed. 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
Sec. 2. Court may remove or accept resignation of executor or right of other persons in interest. (Gustillo vs. Sian)
administrator; Proceedings upon death, resignation, or
removal. - If an executor or administrator neglects to render his account Q Are the grounds for removal or compelling resignation
and settle the estate according to law, or to perform an order or judgment under Section 2, Rule 82 exclusive?
of the court, or a duty expressly provided by these rules, or absconds, or A NO. The grounds enumerated by this legal provision are not exclusive.
becomes insane, or otherwise incapable or unsuitable to discharge the
Thus, where the appointment of an administrator was procured
trust, the court may remove him, or, in its discretion, may permit him to
through false representations, the power of the court to revoke the
resign. When an executor or administrator dies, resigns, or is removed the
appointment on that ground is beyond question. This is so because the
remaining executor or administrator may administer the trust alone, unless
position of administrator is one of confidence. Once the court finds the
the court grants letters to someone to act with him. If there is no
appointee to the position not entitled to such confidence, it is justified
remaining executor or administrator, administration may be granted to any
in withdrawing the appointment and in giving no valid efficacy thereto.
suitable person.
(Cobarrubias vs. Dizon) The removal of an administrator lies within the
sound discretion of the court appointing him. The sufficiency of any
Q How would you distinguish revocation from removal? ground for removal should thus be determined by said court, whose
A revocation vs. removal sensibilities are, in the first place, affected by any act or omission on
REVOCATION REMOVAL the part of the administrator not conformable to or in disregard of the
Letters of administration are Removal of an executor or rules or orders of the court
revoked when it is shown that they administrator should be or grounds
should not have been issued or which have arisen after the letters Q Give an example wherein the removal of an administrator
were improperly issued due to were issued. constitutes grave abuse of discretion
grounds existing before or at the A M was appointed by the probate court in a special proceeding as one of
time of the issuance the administrators in the settlement of the estate of D. subsequently, C
Revocation arises when a will is In removing an administrator, the filed a motion for the removal of M on the ground that he is
proved and allowed by the court law provides 6 grounds as provided incompetent and negligent in the management of the 5 haciendas
for in Section 2, Rule 72 under his charge. During the reception of the evidence conducted by
the probate court, C submitted certain exhibits in support of his motion
Q What are the grounds for removal or compelling the to oust M on January 8, 1966. M filed a motion objecting to the
resignation of an executor or administrator? admission in evidence of the exhibits presented by C on the ground
A The executor or administrator may be removed or compelled to resign that the same were heresay, self- serving, irrelevant and/or mere
when s/he photostatic copies of supposed originals which were not identified nor
1. neglects to render his account; produced in court. On January 30, 1966, the court issued an order

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

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Ronald Chua
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 Q As soon as an administrator is removed, what can/not he
heirs and other interested parties, he is bound to comply with his duties. do?
if later he finds it difficult or impossible to continue with his
administration, he should at least file an inventory of the properties he
A The administrator cannot perform acts of administration, such as
contracting with other persons as administrator. He can no longer
had administered and render an accounting of his administration,
apply to the court to have the transactions approved between the
particularly, of the produce, fruits and income of the properties under
estate and the 3rd persons.
administration and then ask the court that he be relieved of his duties.
(Ledesma vs. Enriquez)
Q What is the effect of the removal of the administration
insofar as creditors are concerned?
Q In case of the removal or resignation of the executor or
A The administrator can neither bring any suit nor be made a defendant
administrator and there is no remaining executor or
in any suit.
administrator, what must the court do?
A While Section 2, Rule 82 provides that if there is no remaining executor
Q What is the effect when one administrator is removed in
or administrator, administration may be granted to any suitable person,
cases where there are two administrators of the estate?
such cannot be used to justify the institution of an administrator even
A The remaining administrator becomes the administrator of the whole
without a hearing. The abovecited provision evidently envisions a
estate, unless a new co- administrator is appointed.
situation where after such removal, the probate court is empowered
merely to name a temporary administrator pending the appointment of a
Sec. 4. Powers of new executor or administrator. - Renewal of
new administrator after due hearing.
license to sell real estate. The person to whom letters testamentary or of
administration are granted after the revocation of former letters, or the
death, resignation, or removal of a former executor or administrator, shall
have the like powers to collect and settle the estate not administered that
Q Are the grounds for removal applicable to special
the former executor or administrator had, and may prosecute or defend
administrators?
actions commenced by or against the former executor or administrator,
A NO. The statutory provision as to the causes for removal of an executor
and have execution on judgments recovered in the name of such former
or regular administrator enumerated under Section 2, Rule 82, does not
execution or administrator. An authority granted by the court to the
apply to the removal of a special administrator. Thus, the person named
former executor or administrator for the sale or mortgage of real estate
executor by the will need not necessarily be made the special
may be renewed in favor of such person without further notice or hearing.
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 Q What does Section 4, Rule 82 provide?
before; for a special administrator is appointed only where there is delay A Section 4, Rule 82 provides for the powers of a new administrator or
in the naming of the regular administrator or executor and only for the executor who has been appointed as such due to the revocation of
purpose of preserving the estate. Furthermore, the law qualifies in the former letter or the death, resignation, or removal of the former
sense that special administrators are appointed with the discretion of the executor or administrator, to wit:
court and an order appointing one cannot be appealed. 1. to have like power to collect and settle the estate not
administered that the former executor or administrator had;
Q If the administrator resigns, must his resignation be accepted 2. to prosecute and defend actions commenced by or against the
by the court? former executor or administrator; and
A The resigning administrator must get the approval of the court. 3. to have execution on judgments recovered in the name of such
former execution or administrator
Q What must the administrator do upon resignation? ₱ However, before a new executor or administrator may exercise the
A He must render an accounting. power to sell or mortgage real estate, which power had been granted
to the former executor or administrator, the same must be renewed in
Q What are the steps necessary to enable an administrator to favor of the new executor or administrator. In renewing such power,
resign? further notice of hearing is no longer necessary.
A The following are the steps necessary to enable an administrator to
resign: Q With respect to the right of an administrator to dispose of
1. the administrator must file his resignation letter to the court; and real properties of the estate, assuming the administrator is
2. the administrator must make an inventory of the properties in his removed, what is the right of the new administrator to
possession. continue the transaction (e.g. pending negotiation for
mortgage)?
Q What is the operative act to make effectual the resignation of A The new administrator will continue the negotiations initiated by the
the administrator? former administrator.
A The resignation must first be accepted by the court.
Q Must this new administrator secure another authority from
the court?
Sec. 3. Acts before revocation, resignation, or removal to be
A YES.
valid. - The lawful acts an executor or administrator before the
revocation of his letters testamentary or of administration, or before his
Q Must there be a hearing?
resignation or removal, shall have the like validity as if there had been no
A NO hearing is required if the new administrator merely continues the
such revocation, resignation, or removal.
acts of administration. But he must secure authority from the court to
continue these negotiations.
Q What is the effect of the revocation of the letters
testamentary or of administration or the resignation or
Note: The order of removal is appealable.
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 RULE 83
administrator is to terminate the authority of the executor or testator. But INVENTORY AND APPRAISAL;
the lawful acts of the executor or administrator done in good faith prior PROVISION FOR SUPPORT OF FAMILY
to such, will be protected and held valid as if there had been no such
revocation, resignation or removal.
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Sec. 1. Inventory and appraisal to be returned within three months. - A Under these rules, the probate jurisdiction of probate courts relates
When three (3) months after his appointment every executor or
only to matters having to do with the settlement of the estates and
administrator shall return to the court a true inventory and appraisal of all
probate of wills of deceased persons, appointment and removal of
the real and personal estate of the deceased which has come into his
guardians and trustees, and the powers, duties and rights of guardians
possession or knowledge. In the appraisement of such estate, the court
and wards, trustees, and cestuis que trust, etc. as may be seen, the
may order one or more of the inheritance tax appraisers to give his or
law does not extend the jurisdiction of a probate court to the
their assistance.
determination of questions of ownership that arise during the
proceeding. Such questions must be submitted to the court in the
Q What is the duty of every executor or administrator? exercise of its general jurisdiction, (Adapon vs. Maralit)
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, ₱ The mere fact that one of the parties is the executor or
rights and credits of the deceased which have come into his possession
administrator of the estate does not confer upon the probate court
or to his knowledge. As to property which came to his knowledge but not
exclusive jurisdiction to decide all questions that may arise between
into his possession, he may bring such action as he may deem necessary
said executor or administrator and 3rd persons as to the title of a
for the purpose of obtaining possession thereof. (Chua Tan vs. Del
specific property.
Rosario)
(page 113 is missing )
Q What is the purpose of the inventory and appraisal of the
estate?
Sec. 2. Certain articles not to be inventoried. - The wearing
A The purpose of the inventory and appraisal of the estate of the decent is
apparel of the surviving husband or wife and minor children, the marriage
to aid the courts in revising the accounts and determining the liabilities of
bed and bedding, and such provisions and other articles as will necessarily
the executor or administrator in making a final and equitable distribution
be consumed in the subsistence of the family of the deceased, under the
of the estate and otherwise facilitate the administration of the estate.
direction of the court, shall not be considered as assets, nor administered
as such, and shall not be included in the inventory.
• Inventory and appraisal must be made within 3 months
from the grant of letters testamentary or of Q What should not be included in the inventory?
administration. A The following should be included in the inventory:
• The three-month period is not mandatory. The fact that 1. wearing apparel of the surviving spouse
an inventory was filed after the three-month period 2. wearing apparel of the minor children;
would not deprive the probate court of jurisdiction to 3. marriage bed and bedding; and
approve it. However, an administrator’s unexplained 4. such other provisions and articles as will necessarily be
delay in filing the inventory may be a ground for his consumed in the subsistence of the family of the deceased.
removal. (Sebial vs. Sebial)
Sec. 3. Allowance to widow and family. - The widow and minor or
• However, an administrator’s unexplained delay in filing
incapacitated children of a deceased person, during the settlement of the
the inventory may be a ground for his removal. (id.) estate, shall receive therefrom, under the direction of the court, such
• Although the administrator is not chargeable with the allowance as are provided by law.
administration of the estate which has not come to his
possession, he is, however, accountable for a true and Allowance – refers to the monetary advances which are
complete inventory of all the property belonging to the subject to collation and are likewise deductible from
state which has come to his knowledge. (Chua Tan. Vs. their share in the estate of the decedent.
Del Rosario)
Q Under Section 3, Rule 83, who are entitled to allowance
Q Is inventory and appraisal conclusive of the value of the during the settlement of the estate?
estate? A Under this provision, the following are entitled to allowance during the
A NO. The inventory and appraisal, when regularly returned, while settlement of the estate:
1. widow of the deceased
generally treated as prima facie evidence of the value of the estate, is
2. minor children of the deceased; and
NOT CONLCUSIVE, either as against 3rd persons or the executor or
3. incapacitated children of the deceased
administrator. Even a decree of the court accepting the inventory will not
be conclusive upon the executor or administrator.
Q May allowance be granted when the liabilities of the estate
exceed the assets of the estate of the decedent?
Q Who determines what property should be included in the
inventory? A NO. When the liabilities of the estate exceed the estate of the decent,
A For purpose of determining whether a certain property should or should and the surviving spouse had not contributed any property to the
not be included in the inventory, the probate court may pass upon the marriage, the latter cannot be granted support not the minor children
title of such properties. for that matter, pending the liquidation of the estate, because said
support, having the character of an advance payment to be deducted
Q What is the nature of such determination by the probate from the respective share of each participant is without legal basis
court? when there is no property to be partitioned. (Moore & Sons Mercantile
A The probate court can only make a prima facie determination of whether Co. vs. Wagner)
certain property, claimed by other persons is considered part of the
estate for the purpose of determining whether it should be included or Q Can children of the deceased, who are neither minors nor
excluded from the inventory. Said determination is not final in nature and incapacitated persons, be granted allowance or support
cannot prejudice the right of interested parties in a proper and separate during the settlement of the estate?
action to determine actual title.
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
Q Why is such determination by the probate court provisional in
permits the allowances to the surviving spouse and his/her children
character?
without distinction. Since the provisions of the NCC, a substantive law,
gives the surviving spouse and to the children the right to receive

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support during the liquidation of the estate of the deceased, such right court.
cannot be impaired by Rule 83 of the ROC, which is a procedural rule
(Santero vs. CFI) Sec. 3. Executor or administrator to retain whole estate to pay
debts, and to administer estate not willed. - An executor or
₱ Article 188 of the NCC, now Article 133 of the Family Code, provides that administrator shall have the right to the possession and management of
“[f]rom the common mass of property, support shall be given to the the real as well as the personal estate of the deceased so long as it is
surviving spouse and to the children during the liquidation of the necessary for the payment of the debts and the expenses of
inventoried property and until what belongs to them is delivered, but administration.
from this shall be deducted that amount received for support which
exceeds the fruits or rents pertaining to them. Q What are the general powers and duties of an executor or
administrator?
Q Should the surviving spouse be legitimate? A The following are the general powers and duties of an executor or
A YES. The surviving spouse must be legitimate, not merely a common- law administrator:
spouse. 1. he shall, at all times, have access to and may examine and take
copies of books and papers relating to the partnership business,
Q Are grandchildren entitled to such allowance pending the and may examine and make invoices of the property belonging
settlement of the estate? to such partnership
A NO. None of the provisions of the ROC, NCC or Family Code include 2. maintain in tenantable repair the houses, and other structures
grandchildren as among those who may be granted allowance during the and fences belonging to the estate, and deliver the same in
settlement of the estate. such repair to the heirs or devisees when directed to do so by
the court;
Q Who determines what amount the widow, minor or
incapacitated children should receive?
3. to make improvements on the properties under administration
A The court has jurisdiction to determine the respective amounts. with the necessary court approval except for necessary
repairs; and
Q What factors are considered by the court in determining what 4. he shall have the right to the possession and management of
amount is received? the real as well as the personal estate of the deceased so long
A The following are the factors are considered by the court in determining as it is necessary for the payment of the debts and the
what amount is received: expenses of administration.
1. financial status of the family; and
2. probable value of the estate. Q In general, what acts may the executor or administrator
According to Atty. Gesmundo, the primary consideration is the SOLVENCY validly perform?
OF THE ESTATE. A The executor or administrator has the power of administering the
estate for the purposes of liquidation and distribution. He may,
Q Can the surviving spouse be granted support from the estate therefore, exercise all acts of administration without special authority of
in all cases? Why or Why not? the court.

A NO. It has been held that when the liabilities exceed the assets of the Q Can the executor or administrator lease any of the
deceased spouse’s intestate estate and that his widow has not properties of the estate under his administration? Does he
contributed any property to the marriage, she cannot be granted support need court approval to do so?
pending the liquidation of the intestate estate. This is based on the
ground that such support, having the character of an advance payment
A YES. The contract of lease, being a mere act of administration, could
to be deducted from the respective share of each participant, would have validly be entered into by the executor or administrator within his
no legal basis when there is no property to be partitioned. (Moore & power of administration even without the court’s previous authority.
Sons Mercantile Co. vs. Wagner) (De Hilado vs. Nava)

Q When does delay in the giving of allowance commence? Q May the probate court interfere or annul such contract of
A It commences AFTER DEMAND. No demand, no delay. lease if entered into without its intervention?
A NO. The probate court has no power to annul or invalidate the contract
RULE 84 in the settlement proceedings wherein it had no jurisdiction over the
person of the lessee. A separate ordinary action is necessary to that
GENERAL POWERS AND DUTIES OF EXECUTORS
AND ADMINISTRATORS effect. (De Hilado vs. Nava)

Q If the lease is to be recorded in the Registry of Property, is


Sec. 1. Executor or administrator to have access to judicial approval necessary?
partnership books and property; How right enforced. - The
executor or administrator of the estate of a deceased partner shall at all
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
times have access to, and may examine and take copies of, books and
without special authority as far as the husband is concerned with
papers relating to the partnership business, and may examine and make
respect to the wife’s paraphernal real estate, the father or guardian as
invoices of the property belonging to such partnership; and the surviving
to the property of the minor or wards and manager without special
partner or partners, on request, shall exhibit to him all such books, papers,
power. nevertheless, Section 3, Rule 85 grants to the executor or
and property in their hands or control. On the written application of such
administrator the power of administering the estate of the deceased
executor or administrator, the court having jurisdiction of the estate may
and he may exercise all acts of administration without special authority
order any such surviving partner or partners to freely permit the exercise
of the Court and this includes leasing the property whether it is to be
of the rights, and to exhibit the books, papers, and property, as in this
recorded in the Registry of the Property. (San Diego vs. Nombre)
section provided, and may punish any partner failing to do so for
contempt.
Q If the lease is for a period exceeding 1 year, is judicial
approval necessary?
Sec. 2. Executor or administrator to keep buildings in repair. -
A NO. Under Article 1878 of the NCC on Agency, special powers of
An executor or administrator shall maintain in tenantable repair the houses
attorney are necessary to lease any real property to another person for
and other structures and fences belonging to the estate, and deliver the
more than 1 year. But an executor or administrator is NOT AN AGENT.
same in such repair to the heirs or devisees when directed so to do by the
While it may be admitted that the duties of a judicial administrator and
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an agent are in some aspects identical, the provisions on agency should A The law does not impose upon an administrator or executor a high
not apply to a judicial administrator. degree of care in the administration of the estate but an ordinary and
usual care for the want of which he is personally liable.
JUDICIAL ADMINISTRATOR AGENT
Appointed by the court. By agreement Q When is an administrator entitled to the possession of the
He is not only the representative of only answerable to his principal. property of the deceased?
said court, but also the heirs and A The administrator or executor shall have the right to take possession of
creditors of the estate. the properties of he deceased so long as it is necessary for the
Before entering into his duties, he No bond required. payment of debts and expenses of administration. When there are no
is required to post a bond. debts to be paid, the estate should pass to the heirs.
Acts of a judicial administrator are The protection which the law grants
subject to specific provisions of law the principal, in limiting the powers Q When is property of executor or administrator answerable
and orders of the appointing court. and rights of the agent, stems from for his debts?
the fact that control by the principal A In case of the death of an executor or administrator who has
can only be through agreements contracted debts, his own property which he left at death is directly
(San Diego vs. Nombre) liable for payments of such debts. The creditor may direct his action
against said executor’s or administrator’s heirs. For until all the
Q Can the executor or administrator deal with himself as an creditors of a deceased person have been paid, there can be no net
individual (auto contracts) in any transaction concerning inheritance divisible among the heirs.
property of the estate?
Q What if a lease contract exceeds 1 year?
A NO. An administrator or executor is not permitted to deal with himself as A If the lease contract exceeds 1 year, the same is no longer considered
an individual in any transaction concerning trust property. An a mere act of administration and leave of court should be required. A
administrator or executor holds the property of the estate as a trustee. view is held however that the aforesaid provision of Article 1878 of the
While there is no express provision of law prohibiting an administrator or NCC on agency should not apply to leases entered into any
executor from appointing himself as agent, nevertheless, such should not administrator or executor under the theory that they represent not only
be permitted in view of the fiduciary relationship that they occupy with the estate but also the parties interested therein, that they are required
respect to the heirs of the deceased and their responsibilities towards the to file a bond and that their acts are subject to specific provisions of
probate court. A contrary ruling would open the door to fraud and the law and orders of the probate court, which circumstances are not
maladministration, and once the harm is done, it might be too late to true with respect to agents.
correct it. (Jaroda vs. Cusi, Jr.)
• The right of an executor or administrator to the
Q What acts can the administrator or executor not validly
possession and management of the real and personal
perform?
A The following are the acts can the administrator or executor not validly
properties of the deceased is NOT absolute and can
perform” only be exercised so as long as it is necessary for the
1. buy property under his administration as it is prohibited under payment of the debts and expenses of the
Article 1491(3) of the NCC administration. (Estate of Hilario Ruiz vs. CA)
2. borrow money, even if it is for the benefit of the estate; • An administrator of an estate cannot exercise the right
3. continue the business in which the deceased was engaged in at pf legal redemption over a portion of the property
the time of his death without the order of the court as his duty is owned in common sold by one of the other co-owners
to settle the estate as soon as possible and not to prolong his since this is not within the powers of administration.
administration. If he does so with the funds of the estate, he is (Caro vs. Court of Appeals)
chargeable with all the losses incurred thereby without allowing
him to receive the benefits of any profits that he may make.
• Where the estate of a deceased person is already the
subject of a testate or intestate proceeding, the
4. speculate with funds of the estate or place them where they may administrator cannot enter into any transaction
not be withdrawn at once by order of the court even if it means involving it without any prior approval of the Court.
depositing said funds in current account which has a low or no
(estate of Olave vs. Reyes)
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. (?) RULE 85
5. Cannot lease the property for more than one year. ACCOUNTABILITY AND COMPENSATION OF EXECUTORS
6. He cannot profit by the increase or decrease in the value of the AND ADMINISTRATORS
property under administration

Q What is the extent of the powers of an administrator or Sec. 1. Executor or administrator chargeable with all estate
executor? and income. - Except as otherwise expressly provided in the following
A An administrator or executor has all the powers necessary for the sections, every executor or administrator is chargeable in his account with
administration of the estate and which powers he can exercise without the whole of the estate of the deceased which has come into his
leave of court. The constitution of a lease over property of the estate is possession, at the value of the appraisement contained in the inventory;
an act of administration and leave of court is not required. Any interested with all the interest, profit, and income of such estate; and with the
party who desires to impugn the same must do so in an ordinary civil proceeds of so much of the estate as is sold by him, at the price at which
action as the probate court has no jurisdiction over the lessee. The it was sold.
administrator of a deceased spouse shall also administer, liquidate and
distribute the community property because the estate of a deceased Q What is the extent of an executor’s or administrator’s
spouse consists not only of the exclusive properties of the decedent, but accountability?
also ½ of the assets of the conjugal partnership, if any, which may A The administrator or executor is accountable for the WHOLE OF THE
pertain to the deceased. ESTATE of the deceased which has come into his possession but not
for the estate which he has never possessed.
Q What is the care required in the management of the estate by ₱ As distinguished from his duty to present an inventory,
the administrator or executor? the administrator or executor is accountable for a correct and complete

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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 Q If there is a mortgage to be foreclosed and the
knowledge. administrative was not able to foreclose the same and a
Except, loss to the estate results, is this the debt contemplated by
He is not accountable for properties which never Section 3, Rule 85?
came to his possession. A NO. The debts contemplated by this provision are confined to MONEY
Exception to the exception, DEBTS.
When through untruthfulness to the trust or his
Q Is the administrator or executor accountable for uncollected
own fault or for lack of necessary caution, the executor
debts?
or administrator failed to recover part of the state which A NO. The administrator or executor shall not be accountable for
came to his knowledge. uncollected debts due to the deceased without his fault. However,
whether the debts remain uncollected without the executor’s or
Q When is the administrator or executor accountable even for administrator’s fault must be shown by him. The presumption being
properties he has never possessed? that the debt could have been collected, for such is the natural course
A If the administrator or executor failed to take possession of the property of things, and in the absence of proof to the contrary, he is
through his fault, as where through negligence, no action has been accountable therefor.
brought for recovery, he is accountable for the property so lost.
Q Is the administrator or executor accountable for debts
Q If the executor is in Manila and the real property is in Cebu, which are uncollected due to his fault?
how can the executor take possession? A YES because there is prima facie presumption of fault on his part.
A The executor can take possession of the property in Cebu by an
annotation lis pendens on the TCT of the real property. Generally, Sec. 4. Accountable for income from realty used by him. - If the
however, the court already has jurisdiction over the real property, but the executor or administrator uses or occupies any part of the real estate
annotation of lis pendens would serve as further protection. 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
Sec. 2. Not to profit by increase or lose by decrease in value. the parties do not agree upon the sum to be allowed, the same may be
- No executor or administrator shall profit by the increase, or suffer loss ascertained by the court, whose determination in this respect shall be
by the decrease or destruction, without his fault, of any part of the estate. final.
He must account for the excess when he sells any part of the estate for
more than appraisement, and if any is sold for less than the appraisement, Q Can an administrator be a lessee of the estate he is
he is not responsible for the loss, if the sale has been justly made. If he administering?
settles any claim against the estate for less than its nominal value, he is A YES by virtue of Section 4, Rule 95. There is, however, a qualification
entitled to charge in his account only the amount he actually paid on the to this rule. If the administrator was the original lessee before he was
settlement. named as administrator, then the lease is perfectly valid. However, if
the lease was constituted during the pendency of his administration,
Q What is the extent of the accountability of the administrator then it could not be allowed because it would amount to self – dealing.
or executor? This situation would now come within the realm of auto- contracts.
A The administrator or executor is chargeable with the estate in such Furthermore, the wording of Section 4, Rule 85 is in the present tense
conditions as it is found, and not in that as the heirs and creditors desire as can be gleaned from the use of the word “uses” or “occupies”
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 Q Reconcile the provisions of the NCC (Articles 1491 and
the estate, without his fault, might have sustained. In addition, it is the 1646) with this section.
duty of the administrator or executor to handle and marshal the assets of A Contracts for occupation should not be for lease. Contracts of bailment
the estate in a business like manner. He is liable for any unreasonable or should not be between the administrator and himself as for the
unnecessary delay in the settlement and closing of the estate. Of course, payment of a debt to him.
the law does not impose upon the administrator a high degree of care in ₱ Section 4 is just a reproduction of the Code of Civil Procedure without
the administration of the estate, but it imposes upon him ordinary and taking into account the provisions of the Civil Code. Atty. Gesumundo
usual care for the want of which he is personally liable. was confusing at this point.

Q Is the administrator liable for loss of personal properties Sec. 5. Accountable if he neglects or delays to raise or pay
under his administration through fortuitous event? money. - When an executor or administrator neglects or unreasonably
A NO. An administrator in administration proceeding is not liable for the delays to raise money, by collecting the debts or selling the real or
loss, by fortuitous event, of the property under his administration in the personal estate of the deceased, or neglects to pay over the money he has
absence of proof that said loss was due to his negligence. (Garcia vs. in his hands, and the value of the estate is thereby lessened or
Escudero) unnecessary cost or interest accrues, or the persons interested suffer loss,
the same shall be deemed waste and the damage sustained may be
Q How does one make the executor liable? charged and allowed against him in his account, and he shall be liable
A The executor could be made liable by going against his bond. therefor on his bond.

Q How does one go against the bond filed by the executor? Q What is the liability of an administrator or executor who
A One could go against the bond by applying to the court which granted neglects or delays to raise or pay money?
the letters of testamentary for the application of the bond. 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
Sec. 3. When not accountable for debts due estate. - No shall be liable therefore on his bond when
executor or administrator shall be accountable for debts due the deceased 1. neglects or unreasonably delays to raise money by
which remain uncollected without his fault. (a) collecting the debts or
(b) selling the real or personal estate of the deceased, or
Q What kinds of debts are contemplated by Section 3, Rule 85? 2. neglects to pay over the money he has in his hands, and
A The debts contemplated by Section 3, Rule 85 are confined to money (a) the value of the estate is thereby lessened or
claims. (b) unnecessary cost or interest accrues, or
(c) the person interested suffers loss.
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Ronald Chua
all claim to the compensation provided by the will.
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 Expenses of Administration – refers to those
the administrator or executor. necessary for the management of the property, for
protecting it against destruction or deterioration, and
Sec. 6. When allowed money paid as costs. - The amount paid by possibly for the production of fruits.
an executor or administrator for costs awarded against him shall be

allowed in his administration account, unless it appears that the action or
Q What expenses and fees are allowed to the administrator or
proceeding in which the costs are taxed was prosecuted or resisted
executor?
without just cause, and not in good faith.
A The administrator or executor is allowed:
1. the necessary expenses in the care, management and
Q What costs may the administrator or executor charge against
settlement of the estate; and
the estate?
2. ₱4/day for his services or commission upon the value of so
A Generally, costs charged or allowed against an administrator or executor
much of the estate as has come into his possession and
in actions brought or prosecuted by or against him should be paid out of
disposed of by him in payment of his debts, expenses, legacies
the estate of the deceased, unless he acted in bad faith. In other words,
or distributive shares or by delivery to the heirs of the
they are costs of litigation.
deceased.
Q What costs may not be charged by the administrator or
executor against the estate? Q Are expenses on the anniversary of the death of the
A In actions brought by the administrator or executor which is more for his deceased considered necessary expenses of administration?
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
A NO. The expenses incurred on the occasion of the death anniversary of
the deceased cannot be considered as part of the funeral expenses.
the deliberate purpose of defrauding the heirs for his own benefit, costs
Similarly, the erection of a mausoleum, which forms part of the
should be personally borne by him.
sepulture of the deceased cannot be treated as necessary expense of
administration. (Nicolas vs. Nicolas)
Q How would money paid as costs be allowed?
A These costs must have been incurred in good faith.

Q Are attorney’s fees paid by the administrator to his own


Q What other expenses cannot be considered necessary
lawyer, who is acting in behalf of the administrator,
expenses for administration?
chargeable as costs of administration?
A The following cannot be considered as necessary expenses for
A NO because attorney’s fees are considered as part of administration
administration:
itself. They are incurred in the natural course of administration.
1. expenses incurred by a presumptive heir for her appearance
and that of her witnesses at the trial to oppose the probator of
Q Could it be argued that the services of an attorney be
an alleged will;
considered as necessary expense?
2. expenses for the settlement of the question as to who are
A IT DEPENDS. If the services of counsel were availed of for collecting
entitled to the estate left by the deceased;
debts, then it could be considered as a necessary expense. If it is
3. expenses incurred by an executor or administrator to procure a
however incurred for helping the administration, then it is not a
bond.
necessary expense.
4. Personal expenses of the occupant of the heir of the family
residence, e. g. salary of the household help, light and water
Sec. 7. What expenses and fees allowed executor or
bills, cost of gas, oil, etc.
administrator. - Not to charge for services as attorney. Compensation
5. Expenses for stenographic notes, unexplained representation
provided by will controls unless renounced. An executor or administrator
expenses.
shall be allowed the necessary expenses in the care, management, and
₱ However, expenses for the renovation and improvement of the family
settlement of the estate, and for his services, four pesos per day for the
residence, incurred to preserve the family home and to maintain the
time actually and necessarily employed, or a commission upon the value of
family’s social standing in the community, are allowable as legitimate
so much of the estate as comes into his possession and is finally disposed
administration expenses of the estate of the deceased. But the living
of by him in the payment of debts, expenses, legacies, or distributive
expenses of an heir occupying the family residence are not legitimate
shares, or by delivery to heirs or devisees, of two per centum of the first
administration expenses of the estate of the deceased.
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
Q When may attorney’s fees be allowed?
pesos, one-half per centum of so much of such value as exceeds thirty
A Attorney’s fees may be allowed as expenses of administration when the
thousand pesos and does not exceed one hundred thousand pesos and
attorney’s services have been rendered to the executor or
one-quarter per centum of so much of such value as exceed one hundred
administrator to assist him in the execution of his trust.
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
Procedure for Collection of Attorney’s Fees
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 (1) Request the administrator to make payment and file
allowance may be re-examined on appeal. an action against him in his personal capacity and not as
administrator should he fail to pay; or
If there are two or more executors or administrators, the compensation (2) Petition in the testate or intestate proceeding asking
shall be apportioned among them by the court according to the services the court, after notice to all persons interested, to allow
actually rendered by them respectively. his claim and direct the administrator to pay it as an
expense of administration.
When the executor or administrator is an attorney, he shall not charge • Whatever course is adopted, the heirs and other
against the estate any professional fees for legal services rendered by him. persons interested in the estate will have the right to
inquire into the value o the services of the lawyer and
When the deceased by will makes some other provision for the
compensation of his executor, that provision shall be a full satisfaction for
on the necessity of his employment. (Occena vs.
his services unless by a written instrument filed in the court he renounces Marquez)
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• The award of the probate court in this regard is A NO. Under Section 7, Rule 85, when the administrator or executor is an
appealable by Record on Appeal. (Gonzales vs. Orense) 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
Q Who is directly liable for the payment of attorney’s fees when allowed only the necessary expenses and not attorney’s fees. His
they are due? compensation is fixed by the rules but such compensation is in the
A Since the service for which attorney’s fees are claimed are supposed to nature of commissions and never as attorney’s fees. (Lacson vs.
have been rendered to the executor or administrator to assist him in the Reyes)
execution of his trust, the liability for the payment of such fees rests on
the executor or administrator. They attorney cannot hold the estate Q What is the effect of an agreement between the
directly liable for his fees. But if said fees were paid by the administrator administrator or executor and the interested parties as to
or executor and are beneficial to the estate and reasonable, he is entitled the former’s compensation?
to reimbursement from the estate. (Uy Tioco vs. Imperial and Panis) A Although the compensation may be agreed upon by mutual consent
₱ In other words, it is the client who must shoulder the attorney’s among the parties involved, such is not a valid and binding
fees. (Lacson vs. Reyes) contract continuous throughout the whole administration of the
₱ Attorney’s fees are also subject to certain standards, to wit: 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
1. they must be reasonable, that is to say, they must have a bearing
on the importance of the subject matter in controversy; times, the compensation of the administrator or executor is a matter
largely to the discretion of the probate court. (Rosenstock vs. Elser)
2. the extent of services rendered; and
3. the professional standing of the lawyer (Lacson vs. Reyes) Sec. 8. When executor or administrator to render account. -
Every executor or administrator shall render an account of his
Q Can the administrator or executor seek reimbursement for all administration within one (1) year from the time of receiving letters
attorney’s fees incurred by him? testamentary or of administration, unless the court otherwise directs
A Reimbursement can be had only if the fees paid were beneficial and because of extensions of time for presenting claims against, or paying the
reasonable. The estate cannot be held liable for the costs of counsel fees debts of, the estate, or for disposing of the estate; and he shall render
arising out of litigation between the beneficiaries thereof among such further accounts as the court may require until the estate is wholly
themselves or in the protection of the interests of particular persons or in settled.
the favor of an administrator who brings litigation for his own benefit and
for the purpose of defrauding the heirs. (Dacanay vs. Hernandez) General Rule:
Within one year from the time of receiving letters
Q Is the administrator or executor entitled to compensation for testamentary or letters of administration.
his services? Exception,
A YES. The administrator or executor is entitled to either a per diem of ₱4/ An extension of time is allowed by the court for
day or a commission. He is entitled to either but not to both. However, presenting claims against, or paying debts of the estate,
he may be denied compensation for his services where the prolongation or for disposing of the estate; and he shall render such
of the settlement of the estate is due entirely to his efforts to defraud the further accounts as the court may require until the
heirs. (Dacanay vs. Hernandez) or where due to his neglect, the estate is wholly settled.
administration has been too expensive. The fact that the final accounts had been approved
does not divest the court of jurisdiction to required
Q What is the basis for the per diem compensation? supplemental accounting for, aside from the initial
A The rules allow the administrator or executor to collect for his services as accounting, the Rules provide that “he shall render such
such the sum of ₱4 for every day actually and necessarily spent by him further accounts as the court may require until the
in the administration and care of the estate of a deceased person, not for estate is wholly settled.
every act or task he might perform. Even if it were to take only a few
minutes to do so. Q Is the period of 1 year mandatory?

Q What is the basis of the compensation?


A The provision of Section 8, Rule 85 is merely DIRECTORY. But all
A The commission is based upon the value of so much of the estate as courts should exert themselves to close up estates within 12 months
comes into his possession and is finally disposed of by him in the from the time they are presented. Furthermore, where there have been
payment of debts, expenses, legacies or distributive shares, or by extensions of time for presenting claims against or paying the debts of
delivery to heirs or devises. Accordingly, the account of commission is as the estate, or for disposing of the estate, the court may direct a period
follows: longer than 1 year.

1. 2% of the first ₱5,000; Q If the administration of the estate has ceased as the heirs
2. 1% of more than ₱5,000 but less than ₱30,000; have agreed to a partition of the estate, is the
3. ½% of more than ₱30,000 but less than ₱100,000; and administrator still bound to render an accounting?
4. ¼% of more than ₱100,000.
A YES. The duty of an administrator to render an accounting is NOT A
Q May a greater sum be allowed the administrator or executor MERE INCIDENT of an administration proceeding, which can be waived
than the fixed per diem or commission? 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
A In any special case where the estate is large, and the settlement has is finally ordered closed or terminated. The fact that all the heirs of the
been attended with great difficulty and has required a high degree of estate have entered into an extrajudicial settlement and partition in
capacity on the part of the administrator or executor, the amount of an order to put an end to their differences cannot in any way be
administrator’s or executor’s fee is largely in the discretion of the probate interpreted as a waiver of the objections of the heirs to the accounts
court, which shall not be disturbed on appeal, except in cases of abuse submitted by the administrator or a release of the latter’s obligation to
thereof. prove his accounts. (Joson vs. Joson)

Q If the administrator or executor is a lawyer, is it a sufficient Sec. 9. Examination on oath with respect to account. - The
ground for increasing his compensation? court may examine the executor or administrator upon oath with respect

64 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013


S p e c i a l P r o c e e d i n g s R e v i e we r : De v i l ’ s n o t es + He r r e r a B o o k + S a n B ed a R ev i e we r | At ty .
Ronald Chua
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


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.)

65 | Nikki Bellosillo and Pamela Dychitan | Ateneo Law School 2013