RULE 87: ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

Section 1:
 An administrator or executor may be sued in either his personal or representative
capacity.
o Actions authorized under this rule are brought against him in his representative
capacity.
o The general rule is that if the action would result in a direct charge upon the estate
the executor or administrator is to be sued in representative capacity.
o For violation of or noncompliance with duties of the trust such executor or
administrator shall be sued in his personal capacity.

 Does not bar a suit against the administratrix for the revival of a judgment for a sum of
money adjudged in that judgment but merely to keep alive said judgment so that the sums
awarded in the action for revival may be presented as claims against the estate.

 A legatee may bring an action against the executor against the executor or administrator
to compel the payment of the legacy. But qualified by 88.15 wherein probate court may
allow him sufficient period of time within which to pay such legacy.

Note:
As a general rule, no action upon a claim for recovery of money or debt or interest shall be
commenced against the executor or administrator because the creditor’s remedy is to file a
proper claim in the proceeding for the settlement of the deceased’s estate. But if the judgment
creditors had no alternative but to file an action for revival of money judgment to pre-empt its
extinguishment by prescription, the action may be properly filed against the administrator.
(Romualdez v. Tiglao, 105 SCRA 762)

Section 2:

 While the heirs have no standing in court to sue for the recovery of property of the estate
represented by an executor or administrator it has been held that the heirs may maintain
such action if the executor or administrator is unwilling to bring suit, when he is alleged
to have participated in the act complained of.

 Even if administration has been commenced heirs may still bring suit in behalf of the
estate if administrator hasn’t been appointed (rights to succession transmitted upon
death).

 In an action by the administrator to recover properties of the estate the judgment of the
court ordering the possessors to surrender the property and to account for the fruits
thereof, is a final and appealable judgment.

Note:
Recognizes the right of the executor or administrator to sue upon any cause of action which
accrued to the decedent during his lifetime. (Bayot v. Zurbito)
Injury to property is not limited to injuries to specific property but extends to other wrongs such
as maliciously causing a party to cause unnecessary expenses. (Aguas v. Llenos)

Action for damages caused by tortuous acts may be brought against the executor or administrator
of the estate. (Melgar v. Buenviaje)

Section 3, 4 and 5:

 The prohibition in sec 3 applies only to heirs and devisees and not to be a done inter
vivos who may sue the administrator for the delivery of the property donated or a reserve
who can sue to recover the property which the deceased was bound to reserve.

 Where in his lifetime a final judgment had been rendered in favour of the deceased said
judgment shall be enforced by execution on motion of the executor or administrator.

Note:
Previous declaration of heirship Not necessary (Suiliong v. Marine Insurance)

Heirs may bring a Reinvindicatory action before declaration of heirsip (Banacihan v.

Aliibodbod)

Heirs may not sue when there is an administrator appointed, until share is assigned (Del Rosario
v. Del Rosario, 2 Phil. 321)

Jurisprudence recognizes three exceptions to the rule that the heirs do not have legal standing to
represent the rights and properties of the decedent during the pendency of administration
proceedings: (a) if the executor or administrator is unwilling or refuses to bring suit (Pascual v.
Pascual); (b) when the administrator is alleged to have participated in the act complained of and
he is made a party defendant (Borromeo v. Borromeo); and (c) when there is no administrator
appointed (Rioferio v. CA)

Administrator or executor does not need a special authority from the court to bring an action for
foreclosure on behalf of the estate. (Calimbas v. Paguio, 46 Phil 566)

Section 6, 7 and 8:

 These proceedings are merely in the nature of fact-finding inquiries. If in the proceedings
authorized under this section the persons alleged to have converted the property of the
estate assert title thereto, the probate court cannot determine the issue of title. The
executor or administrator must file an ordinary action in court for the recovery of the
properties or damages thereto.

Note:
If after examination there is good reason for believing for believing that the person so examined
has property in his possession belonging to the estate, it is the duty of the administrator, by
ordinary action to recover the same. (Chua v. Absolute Management Corp)
Double value rule does not apply to the manager of a company who carries on the business after
the death of his principal and applies the proceeds of sale to the payment of debts contracted in
running the business.

Rule contemplates of an embezzlement or alienation which causes the estate to lose the property
converted by the wrongdoer (Marshall v. Anthalz)

Section 9 & 10:

 These sections contemplate fraudulent transfers or fictitious contracts of the decedent in

fraud of creditors. The executor or administrator may, on his own initiative or on motion
of the creditors and as directed by the court institute an action for the recovery of said
property, but since said action is for the benefit of the creditors the court may direct the
creditors to defray part of the costs and expenses of the suit.
o If the executor or administrator still fails to bring such action, any of the creditors
may bring suit in his own name, with leave of court, upon the filing of an
indemnity bond for such costs and expenses as may arise from suit.
o Where, the action is against the executor or administrator himself, the suit shall be
in the names of all the creditors and leave of court and the indemnity bond shall
not be required.

Requisites for Creditor to file action:

1. there is a deficiency of assets in the hands of an executor or administrator for the payment
of debts and expenses of administration
2. deceased in his lifetime had made or attempted to make a fraudulent conveyance of his
property, or a right or interest therein, or debt or credit, with intent to defraud his
creditors or to avoid any right, debt or duty; or had so conveyed such property, right, debt
or credit that by law the conveyance would be void as against his creditors
3. subject of the attempted conveyance would be liable to attachment by any of them in his
lifetime
4. executor or administrator had shown to have no desire to file the action or failed to
institute the same within reasonable time
5. leave is granted by the court to the creditor to file the action
6. bond is filed by the creditor as prescribed by the rule
7. action by creditor is in the name of the executor or administrator

Note:
The last 3 requisites are unnecessary where the grantee is the executor or administrator himself
in which event the action would be in the name of all the creditors.

RULE 88: PAYMENT OF THE DEBTS OF THE ESTATE

Section 1, 11, 12, 13, 14 & 15:

  Provisions of section 15 for the payment of debts and legacies is directory and extensions
of the period may be granted by the court taking into account the circumstances attending
the distribution of the estate.

Note: A writ of execution is not proper to enforce payment of debts and expenses of
administration. The proper procedure is for the court to order the sale of personal estate or the
sale or mortgage of real property of the deceased.
-Proceeds will be used to pay all the outstanding debts and the expenses of administration

Section 2, 3 and 6:

 The payment of the debts of the estate as a general rule, must be taken (a) from the
portion or property designated in the will (b) from the personal property and (c) from the
real property in that order. The court on petition of the interested parties may modify such
order of disposition.

 A legacy is not a debt of the estate, hence the probate court cannot issue a writ of
execution for the payment or satisfaction thereof.

 On the other hand section 6 authorizes execution against the contributive shares of the
devisees, legatees and heirs in possession of the decedent’s assets to satisfy the debts of
the estate.

Note:
Even if the testator has acknowledged a specific debt in his will, the creditor must still file is
claim otherwise it would be barred [see also Rule 86]. (Santos v. Manarang, 27 Phil 209)

Realty is liable for debts and expenses only when

1. the personal estate of the decedent is not sufficient for the purpose, or
2. sale of personalty would be detrimental to the participants of the estate

Section 4 and 5:

 These two sections provide for the payment of contingent claims. If the contingent claim
becomes absolute and is presented to the courts as an absolute claim within two years
from the time allowed for the presentation of claims, it will be paid in the same manner as
the other absolute claims. After said period, the creditor may proceed against the
distributees, provided said contingent claims had been seasonably filed in and allowed by
the probate court. The property reserved for the payment of such contingent claims may
therefore be retained by the administrator or executor only within said two-year period a
thereafter the same shall be included among assets for distribution to the heirs.

Note:
If the contingent claim matures after the expiration of 2 years, the creditor may sue the
distributees, whose liability is proportionate to the shares in the estate received by them
Rule 88.5 is the only instance wherein a creditor may file an action against the distributee of the
estate

The contingent claims must first have been established and allowed in the probate court before
the creditors can file an action directly against the distributees

Section 6

 Under these provisions, the court fixes contributive shares where devisees, legatees, or
heirs have been in possession.
Note:
The hereditary property is the part that remains after the settlement of all lawful claims against
the estate.

The heirs and distributees are liable individually for the payment of all lawful outstanding claims
against the estate in proportion to the amount received by them.
-Since a legacy is not a debt of the estate, legatees are among those against whom
execution may issue. (Pastor v. CA)

Section 7 and 8:

 Under these provisions, the preference of credits has been specifically incorporated in the
rule, to be followed in the payment of debts where the estate is not sufficient therefor.

Section 9, 10 and 16:

Note:
The probate court must exert themselves to close the estates within 12 months from the time they
are presented, and they may refuse to allow any compensation to executor or administrators who
do not actively labor to that end, and may even adopt harsher measures (removal or payment of
damages). (Lizarraga v. Abada)

Period to be fixed by the court to settle the estate

- not exceed 1 year in the first instance, or
- not more than 2 years where special circumstances so require, or
- not more than 2 years and a half when the executor or administrator dies and a new one is
appointed.

Execution may issue only where the devisees, legatees or heirs have entered into possession of
their respective portions in the estate prior to settlement and payment of the debts and expenses
of administration and it is late ascertained that there are such debts and expenses to be paid.

RULE 89: SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY

OF DECEDENT

Section 1, 2, 4, 5 & 6:
 The court may allow only the sale of personal property for the purposes in section 1 and
not encumbrance thereof.

 With respect to real property the court may permit the same to be sold, mortgaged or
otherwise encumbered under sections 2, 4, 5, 6.

o Under both sections 4 and 6, if it will not be for the convenience of or beneficial to
the heirs and not for payment of debts, administration expenses and legacies, real
property can only be allowed to be sold and not encumbered.

 As a rule, unless the testator had made provisions to the contrary in his will, the personal
property of the estate must first be sold for the payment of debts, expenses of
administration or legacies. If the same is still insufficient, the real property may be
proceeded against. Nevertheless, personalty may always be sold at any time if it is
necessary for the preservation of its value.

 The sale or encumbrance of real property may be allowed by the court if the petition
therefore avers: (a) that the personal estate is not sufficient to pay the debts, expenses of
administration and legacies or that the sale of such personalty may injure the business or
the interests of persons interested in the estate; (b) that the testator has not otherwise
made sufficient provisions for the payment of such debts, expenses of administration and
legacies; and (3) that such sale or encumbrance would be beneficial to the parties
interested in the estate.

o The averment as to the value of the personal estate is a requisite in the petition for
sale of real property, without such averment court has no jurisdiction to authorize
sale of realty. Sale of such is null and void.

 Personal property may be sold, or the real property may be sold, mortgaged or otherwise
encumbered for the following reasons

o Payment of debts, expenses of administration and legacies in the

Philippines; o When such sale would be beneficial to the persons interested
in the estate

o Payment of debts, expenses of administration and legacies involved in the

settlement of the estate of a decedent in a foreign country.

 If the administrator or executor sells property of estate without the requisite authority of
the court, such sale is null and void. The same rule would apply to encumbrances of real
property without authority of the court.

 Also such application for authority to sell or encumber property of the estate must be
with notice to the heirs, devisees and legatees. Otherwise, the sale is void. Such notice is
 presumed to have been given absent proof to the contrary and order of the court granting
such authority cannot be assailed in a collateral proceeding.

 Prohibitions
o Executors and administrators cannot purchase the property of the estate under
administration.

o Also justices, judges, prosecuting attorneys, clerks of court and other officers and
employees connected with the administration of justice cannot purchase the
property and rights in litigation or levied upon an execution before the court
within whose jurisdiction or territory they exercise their respective functions.

o Same prohibition applies to lawyers with respect to the property and rights which
may be the object of any litigation in which they may take part by virtue of their
profession. Any sale covered by this prohibition will be null and void.
Note:
Although Rule 89 requires court approval for the disposition of the estate of the decedent,
judicial approval cannot adversely affect the substantive rights of heirs to dispose of their own
pro indiviso shares in the co-heirship or co-ownership. They can sell their rights, interests or
participation in the property under administration. A stipulation requiring court approval does
not affect the validity and effectivity of the sale. It merely implies that the property may be taken
out of custodia legis, but only with the court’s permission. (Heirs of Spouses Remedios
Sandejas and Eliodoro Sandejas vs. Lina)

The father or mother is the administrator of the child’s property, but notice to them alone is not
sufficient. Notice to counsel or guardian ad litem, however, is sufficient (Maneclang v. Baun)

Under rule 82.4, the authority granted by the court to the former executor or administrator for
the sale or mortgage of real estate may be renewed in favor of the new administrator or
executor without further notice or hearing.

The probate court may rescind its order authorizing the administrator to sell realty to a third party
and this third party cannot dispute such an order and object to the sale of the property to another
party without putting up a bond for the security of creditors as well as the administrator. (Pio
Barreto Realty Development, Inc. v. CA)

Section 3:

 If the opposition to the sale is based on the fact that the oppositor claims title to the
property sought to be sold, the court can hold in abeyance the authority to sell such
property until the issue of title has been settled in an ordinary civil action, as the probate
court generally has no power to adjudicate the question of ownership in the
administration proceedings.

Section 7:
  After the sale or encumbrance of the property is effected in accordance with this section,
the document of sale must be submitted for the approval of the court. The court may also
require the administrator or executor to deposit the proceeds of the sale in a banking
institution.

Note:
The administrator occupies a portion of the highest trust. He should act with utmost
circumspection to preserve the estate and guard against its dissipation so as not to prejudice its
creditors and the heirs. To guarantee faithful compliance with the authority granted, the order of
the court makes it an emphatic duty on the part of the administrator to submit to the court for
approval transactions made by him. (Lao v. Genato)

The regulations apply to both testate and intestate proceedings and are mandatory. The order of
sale and the sale made will be void if they are not complied with; such authority may be validly
given despite objection of one or more of the heirs.

Actual knowledge of the application for sale may estop the heir or interested party from
questioning the sale.

Where a party did not object to the order of the court and participated in the sale, he is estopped
from questioning the regularity of the sale.

Sale of land under judicial administration needs approval of the sale by the court to be
effective.

Sale by the administrator which is not authorized by the probate court is null and void and does
not pass title to the purchaser. (Godoy v. Orellano)

When the estate is already subject to a testate or intestate proceeding, the administrator cannot
enter into any transaction involving it without prior probate court approval. Hence, the same
court can declare the sale null and void for as long as the proceedings had not been closed.
(Estate of Olave v. Reyes)

The heirs have the right to dispose of their ideal share in an inheritance, even if the same is
under administration, based on the civil code: possession of hereditary property is deemed
transmitted from moment of death if the inheritance is accepted, and until it is partitioned, it is
owned in common by such heirs. (Acebedo v. Abesamis)

Section 8 & 9:

 The authority granted to the probate court by section 8 presupposes that there is no
controversy as to the contract contemplated therein and that the assets of the estate will
not be reduced to the extent of depriving the creditor of full payment of his claim or his
just dividend. If such objections obtain, the remedy of the person seeking the execution of
the contract is an ordinary and separate action to compel the same.
  Under section 9 the court can authorize such conveyance only if there is no controversy
and even if creditors may be affected since unlike the situation in section 8, the properties
contemplated do not form part of the estate of the deceased who merely held the same in
trust.

 Notice of such application must be given to all interested parties, otherwise both the order
of the court and the conveyance made pursuant thereto are completely void.

Note:
Rule 89.8 does not prescribe that only the administrator/executor can apply for the approval of a
sale of realty under administration. This provision should be differentiated from Sections 2 and 4
specifically requiring only the executor or administrator to file an application to sell, encumber
or mortgage real estate. While section 8 does not specify who should file the application, it
stands to reason that the proper party must be one who is to be benefited/injured from the
judgment or one who is entitled to the avails of the suit. (Heirs of Spouses Remedios R.
Sandejas and Eliodoro Sandejas vs. Lina)

The probate court has authority to determine whether conditions of a particular sale would be
beneficial to the estate and this is generally respected. To attack the nullity of the order of the
probate court to sell the property of the deceased, it must be shown that the contract of sale is
null and void. The validity of said order may not be attacked collaterally since the supposed
ground for declaring it void for lack of jurisdiction is not apparent on the face thereof. (Pio
Barretto Realty Development vs. CA)
-Though the order of the probate court approving sale of the decedent’s property is final,
the respondent may file a complaint in the proper court for the rescission of the sale.

RULE 90: DISTRIBUTION AND PARTITION OF THE ESTATE

Section 1:

 Partial distribution of the decedent’s estate pending the final termination of the estate or
intestate proceeding should as much as possible be discouraged by the courts and except
in extreme cases such form of advances of inheritance should not be countenanced.

 Before the court can issue an order of distribution, the debts, funeral charges, expenses of
administration, allowance to the widow and inheritance tax must first have been paid.

 While it speaks only of allowance to the widow, it should also include the allowance to
the children of the deceased as the payment of such allowances during the pendency of
the administration proceedings. Legacies must have been paid (88.15), an advance or
partial distribution may be allowed provided the forgoing obligations are secured by a
bond.

 Under this section the probate court is specifically granted jurisdiction to determine who
are the lawful heirs of the deceased as well as their shares. Hence there is no further need
to institute an independent civil action to pass upon the status of a person who claims to
be an heir.
 o The order of distribution must also be at the same time a declaration of heirs since a
separate action for the declaration of heirs is not proper.

o If the proceedings have been closed the same may be reopened to pass upon the
status of one claiming to be an heir.

 The heirs may also by agreement submit a project of partition to serve as a basis of the
order of distribution. The heirs who do not agree may submit a counter project of
partition.

 In approving a project for partition it is not necessary for the court to state the specific
property adjudicated to an heir but may award the same to the heirs in pro indiviso
shares.

 If they cannot agree on their respective specific participations they can thereafter resort to
an action for partition.

 The judicial decree of distribution vests title in the distributees and any objection thereto
should be duly raised in a seasonable appeal, otherwise it will have binding effect like
any other judgment in rem.

 After the institution of the testate or intestate proceedings, the assignment pendent lite by
one heir of his hereditary share requires the approval of the probate court.

 The sale by a widow of land belonging to the conjugal partnership is valid with respect to
her one-half share therein even if the sale was made before partition, except where there
are numerous assets of the partnership as in that case the particular and corporeal share of
the widow cannot be determined until after the liquidation and partition thereof.

Section 2, 3 & 4:

 The probate court loses jurisdiction of an estate under administration only after payment
of all debts and the delivery of the remaining estate to the heirs.

 The finality of the approval of the project of partition does not terminate the probate
proceeding.

 As long as the order of distribution has not been complied with, the probate proceedings
cannot be deemed terminated because a judicial partition is not final and conclusive and
does not prevent the heir from bringing an action to obtain his share within the
prescriptive period.

 The better practice for the heir who has not received his share is to demand the same
through a proper motion in the same probate or administration proceedings or for
 reopening of said proceedings if already closed but still within the reglementary period
for appeal and not through an independent action.

 Where the order closing the intestate proceeding was already final and executory the
same cannot be reopened on a motion therefor filed after the lapse of the reglementary
period.

Note:
Approval of the project of partition does not necessarily terminate the proceedings. (Luzon
Surety v. Quebrar)

Proceedings for the settlement of estate is deemed ready for final closure when
- There should have been issued already an order of distribution or assignment of
the estate of the decedent among or to those entitled thereto by will or by law.
- Such order shall not be issued until it is shown that the “debts, funeral charges,
and expenses of administration, the allowance to the widow, and inheritance tax, if
any, chargeable to the estate.
- Order is usually upon proper and specific application for the purpose of the
interested parties.

Interference of a co-equal court with a probate court prohibited  avoids confusion and
conflict

Issuance of writ of execution

General Rule: Cannot issue, since administrator satisfies the court order adjudicating claims
without such writ
- ONLY Exceptions : To satisfy contributive share of heirs in possession of the
decedent’s assets (Rule88.6)
- To enforce payment of expenses of partition (Rule90.3)
- To satisfy costs when a person is cited for examination in probate proceedings.
(Rule142.13)

RULE 91: ESCHEATS

Section 1:

 Petitions for escheats may only be filed in the name of the republic of the Philippines by
the solicitor general or his representative such as the provincial or city prosecutor.
 Even if the decedent died testate but his will was not allowed to probate, it is as if he died
intestate and if he has not known heirs and there are no persons entitled to his property,
the same can still be escheated.

Note:
Escheat is a proceeding whereby the real and personal property of a deceased person in the
Philippines, without leaving any will or legal heirs, become property of the State upon his death
It is an incident or attribute of sovereignty

Rests on the principle of ultimate ownership by the state of all property within its jurisdiction

A substantial right of the state, not charity or gratuity or unearned benefit

Any person alleging to a direct right or interest may oppose

A depositary bank should be joined as respondent [Act 3936, Section 3 Law on Forfeiture of
Dormant Bank Deposits]. (Republic v. CA)

Jurisdiction in proceedings in escheat cannot be converted into settlement of the estate; proper
petitions must be filed

Section 2, 3 & 4:

 Art. 1014 provides that the 5-year period is to reckoned from the date the property was
delivered to the state and further directs that if the property had been sold the
municipality or city shall be accountable only for such part of the proceeds as may not
have been lawfully spent.

Note:
General Rule: Motion to Dismiss (MTD) not allowed by Rules of Court on escheat However,
there is no procedural reason which prevents MTD upon any grounds for dismissal of a
complaint e.g. when petition does not state facts which entitle the State to escheat, or there is
no ground for the court to proceed. (Republic v. PNB)

MTD plays the role of a demurrer, enabling the court to resolve the legal questions raised
therein. (Municipal Council of San Pedro v. Colegio de San Jose)

Judgement of escheat conclusive upon all persons notified by advertisement.

Lack of dishonest intent on the part of the State to constitutes due process, proper notice having
been observed.

Burden of proof rests on State to prove the property is liable in all respects to escheat à prove
decedent died: 1st, intestate; 2nd, without heirs; 3rd, seized of the property in question.

Right to escheat may be waived, expressly or impliedly e.g. right existed prior to registration
proceedings, and such right not asserted in said proceedings. (Roman Catholic Archbishop v.
Monte de Piedad)
Noncompliance with jurisdictional requirements render a court without jurisdiction to grant a
remedy enabling an heir to appear from the date the decree of escheat and file a claim to the
estate. (Divino v. Municipality of Guianga)

Section 5:

 Actions for reversion are proper in illegal sales of land to disqualified aliens. Unlike
petition for escheat the action for reversion shall be filed in the province where the land
lies in whole or in part.

 The 1987 constitution requires that the Congress shall provide efficacious procedures and
adequate remedies for the reversion to the State of all lands of the public domain and real
rights connected therewith which were acquired in violation of the Constitution or the
public land laws, or through corrupt practices.

GUARDIANSHIP

Guardianship may be viewed either as a power or a relation

- It is power of protective authority given by law and imposed on an individual who is
free and in the enjoyment of his rights, over one whose weakness on account of his age
or other infirmity, renders him unable to protect himself.
- It is a relation subsisting between the guardian and the ward.
- Involves the taking possession of and management of, the estate of another unable to act
for himself

Guardian: person entrusted with the custody and control of the person and/or estate of a
minor, insane or other person incapable of managing his own affairs

Basis of Guardianship: Parens Patriae

- Duty of the state to protect the rights of persons/individuals who because of
age/incapacity are in an unfavorable position vis-à-vis other party.
- Parens patriae is inherent in the supreme power of the state
- This is a most beneficent function and often necessary to be exercised in the interest of
humanity and for the prevention of injury to those who cannot protect themselves.

Note:
Art XV, § 5 – state has a duty to defend the right of children to assistance, proper care and
nutrition, and special protection from all forms of neglect, abuse, cruelty. Exploitation and
other conditions prejudicial to their development.

Nery vs. Lorenzo - where minors are involved, the state acts as parens patriae.

PD 603, Art 3, Par. 8 provides that every child has the right to be protection against
exploitation, improper influences, hazards, and other conditions of circumstances prejudicial to
his physical, mental, emotional, moral and social development.
RULE 92: VENUE

Section 1:

 There are three kinds of guardians under the law.

o The legal guardian is such by provision of law, without need of appointment, as in

the case of the parents over the persons of their minor children or father or in his
absence the mother with respect to property of minor children not exceeding P
50,000.00 in value.

o The guardian ad litem who may be any competent person appointed by the court
for purposes of a particular action or proceeding involving the minor.

o The judicial guardian who is a competent person appointed by the court over the
person and/or property of the ward to represent the latter in all his civil acts and
transactions, and is one contemplated in the aforementioned rules.

 Judicial guardianship may be with respect only to the person of the ward, or his property
or of both. Where the ward has no property, guardianship may be only with respect to his
person; in case of a non-resident ward, guardianship may be with respect only to his
property.

 While there is no prohibition against appointment of different judicial guardians, one for
person and one for property, the practice is to appoint judicial guardians for both unless
otherwise called for by the circumstances.

 Under BP 129 inferior courts no longer have concurrent jurisdiction to appoint guardians
over persons or properties of incompetents.

o However, where the minor or incompetent is a party to an action in a n inferior

court, he may be assisted by or may sue or be sued therein through his legal
guardian or the inferior court may appoint a guardian for him.

 Where in a guardianship case an issue arises as to who has a better right or title to the
properties in the course of the proceedings, the controversy should be threshed out in a
separate ordinary action as the dispute is beyond the jurisdiction of the guardianship
court.

o However, where the right or title of the ward to the property is clear and
indisputable, the guardianship court may issue an order directing its delivery or
return.

Note:
The venue of guardianship proceedings is primarily the place of residence of the minor/
incompetent in the Philippines.

When the minor/incompetent is a non-resident, the petition for guardianship may be filed in the
RTC of the place where the property of the minor/incompetent is situated.

This is because the powers of a guardian may be exercised only in the state under whose laws
they were conferred.

Residence = domicile

Under the Family Courts Act (RA 8369), the Family courts is vested with exclusive original
jurisdiction over petitions for guardianship, custody of children, and habeas corpus in relation
to the latter.

Section 2 & 3:

 These sections contemplate the incompetent person for guardianship and the transfer of
venue of guardianship proceedings.

Note:
Civil Interdiction – deprives the offender of his rights of parental authority, guardianship,
marital authority, the right to manage his property and to dispose of it by any act inter vivos.

Prodigality – synonymous with spendthrift or a person who by excessive drinking, gaming,

idleness or debauchery of any kind shall so spend, waste or lessen his estate as to expose himself
or his family to want or suffering or expose the town to charge or expense for the support of
himself or his family; the prodigal must show a morbid mind and a disposition to waste the estate
(Martinez v. Martinez).
- Quantum of evidence = competent evidence demonstrating necessary facts and the
evidence must be clear and definite. (Yangco v. CFI)

Insanity – Every adult is presumed sane. However, where the question of insanity is put in
issue in guardianship proceedings, and a guardian is named for the person alleged to be
incapacitated, a presumption of mental infirmity of the ward is created.

Purpose of Authorizing Change of Venue: To afford convenience to the ward; such change is
therefore within the exclusive discretion of the court.

Limitations on the Transfer of Venue: The court may impose as a condition to the change of
venue that a settlement of estate be made in the court which granted the letters of guardianship.

A Branch of the Same Court Cannot be Permitted to Assert its Jurisdiction in Disregard
of the Orders of Another Branch
RULE 93: APPOINTMENT OF GUARDIANS

Section 1, 2 & 6:

 The courts should not appoint as a guardian any person who is not personally subject to
their jurisdiction, such as nonresidents of the Philippines.

 In case of a minor, the petition may be filed by the DSWD and in case of an insane minor
who needs to be hospitalized, by the Secretary of Health.

 Notice of the petition for the appointment of a general guardian must now be given to all
relatives of the ward, instead of only to the next of kin required in the old rules. The
giving of notice to relatives is a jurisdictional requirement.

Note:
Joint parental authority is exercised by the father and the mother. In case of disagreement, the
father’s decision shall prevail.

Grandparents shall be consulted on important matters but they shall not interfere in the exercise
of parental authority by the parents (Art. 18, RA 9262)

In the absence or death of parents, the grandparents, and in their default, the oldest sibling who
is at least 18 years old or the relative who has actual custody shall exercise parental authority
unless a guardian has been appointed. (Art 19, RA 9262)

Art.225, Family Code does not make a distinction as to the amount of the minor’s property
when it stated that the father and mother shall be the legal guardian of the property of their
unemancipated children without need of court appointment
- But, if the market value of the property or annual income > P50K, the parent concerned
shall post a bond with the court to guarantee the performance of his/her obligation.

Section 3:

 Service of notice upon a minor who is more than 14 years if age or an incompetent is
jurisdictional.

Note:
Notice of application and hearing shall be served by the court on (1) the persons mentioned in
the petition residing in the Philippines and (2) the minor himself if above 14/ the incompetent
himself.

Notice is normally essential in order to confer jurisdiction on the court where a petition for
guardianship is filed, over the person of the minor/incompetent. It has been held that lack of
notice renders the appointment of a guardian void and subject to collateral attack.
Section 4, 5 & 6:

 In the appointment of a guardian the courts should take into consideration the
competency, character and financial condition of the prospective guardian. No person
should be appointed guardian if his interests conflict with those of the ward or if he is a
non-resident of the Philippines.

 The court has no jurisdiction to appoint a guardian over the person of a non-resident
minor but there can be guardianship over the property of such non-resident minor.

 The appointment of a guardian is good until set aside and despite an appeal therefrom, the
guardian can do whatever is necessary under the direction of the court, for the protection
of the ward or his property.

Note:

Opposition must be in writing but need not be verified.

Who may file: Any person interested in the person/property of the ward; However, a creditor
and mortgagee may not be appointed a minor’s guardian as no man can serve two masters.

Grounds for filing an opposition majority of alleged minor

a. competency of alleged incompetent
b. incompetency of person for whom letters are prayed

The oppositor may pray for dismissal of petition or that letters be issued to him or another
suitable person.

With respect to minors, the grounds stated in this section is not exhaustive since guardianship
may also be opposed on the ground of non-termination of the parental authority of the parents
of the minor.

“Among others” is added to §10 of the Rules on guardianship of minors in order not to limit the
grounds for filing an opposition to a petition for guardianship to those enumerated.

At what stage of the proceedings an opposition may be filed?

- Though dismissal of an opposition is appealable, opposition must first be addressed and
resolved by the lower court and not for the first time on appeal.

As the primary objective for appointment of a guardian is protection of the ward, execution
pending appeal for urgent and compelling reasons is a matter within the sound discretion of the
Trial Court and the appellate court will not interfere unless there has been grave abuse.
(Francisco v. CA)
Considerations in the appointment of a guardian (Francisco v. CA)
- The court may consider the financial situation, the physical condition and sound
judgment, prudence and trustworthiness, the morals, character and conduct, and the
present and past history of a prospective appointee as well as the probability of his being
able to exercise the powers and duties of a guardian for the full period during which
guardianship will be necessary.
- A guardian may be removed if he becomes insane, or otherwise incapable or unsuitable,
or has wasted the estate or failed to make return or render an account 30 days from the
due date.
- The best interests of a ward can override procedural rules and even the rights of parents to
the custody of their children.

Jurisdiction of the court over non-residents

- A court of a state in which an incompetent has property may appoint a guardian to ward’s
estate; jurisdiction may be acquired through publication.
- Proceeding to declare a person insane is in personam, therefore personal service is
necessary.
- Personal service is also necessary when alleged incompetent is a resident who is
temporarily abroad. In such a case, publication alone is insufficient.

Preference in appointment of a guardian will ordinarily give, on the principles of comity, to a

person already clothed with the authority of guardian in the ward’s own country.

Section 7:

 Amended by Family Code Art. 225.

Note:
Natural guardian cannot dispose of the property of the child
- A parent does not have the power to dispose of or encumber the property of his child.
Any disposition made by the parent is null and void. Only a judicial guardian may dispose
of his ward’s property and only with prior court approval.
- The new rule on the guardianship of minors will be suppletory to the FC on guardianship
if the father and mother jointly exercise legal guardianship over the property of their
unemancipated common child.
- The Rules on guardianship of minors will apply when
- Child is under substitute parental authority
- Guardian is a stranger, or a parent who has remarried.

Remedy against a guardian who disposed of the property

- Vendees prejudiced by the illegal transactions of a natural guardian involving the
property of a minor have no cause of action against subsequent legal owners, only against
a natural guardian but only to recover damages (Valencia v. Lagdameo)
Qualifications of Guardians of minors
- The Rules of Court does not have a provision on the qualifications which the court may
consider in appointing a guardian.
- The Rules on guardianship of minors contain a provision stating the qualifications of
guardians. These were taken mainly from Francisco vs. CA.
- Financial condition (c)
- Physical condition (b)
- Sound judgment, prudence and trustworthiness (g)
- Morals (a)
- Character and conduct (b)
- Present and pass history of the prospective appointee
- Probability of his being able to exercise the powers and duties of the guardian
- The committee added: relationship of trust with the minor, and his lack of conflict of
interest with the minor.

Section 8:

RULE 94: BOND OF GUARDIANS

Section 1, 2 & 3:

BOND
Purpose
a. To protect the property of the minor to the end that he may be assured of an honest
administration of his funds during his minority.
b. To serve as security to those interested in the property settlement of the estate.

Necessity – a guardian cannot take possession of and control the property of his ward unless he
has given the bond for the faithful performance of his duties.

Amount – fixed by the court with reference to the ward’s estate.

When bond takes effect - as of the day of its date and of his appointment and not when the bond
was filed.

Additional Bond
Discretionary – court may allow additional security when it seems proper for the
protection of the ward’s estate.

Required – when first bond was insufficient, it is the duty of the court to require
additional bond.
Note:
Bonds will be construed and enforced in accordance with the intention and scope of the guardian
and his surety in giving it, to secure the wards in their individual rights.
Sureties
- Liability of the sureties must depend upon the extent of the obligation created by the
terms of the bond and the statutes which can be read into it.
- duration of liability is a continuing one against the obligors and their estates until all of its
conditions are fulfilled. (Guerrero v. Teran, 13 Phil. 212)
- When judgment is entered against the sureties, they may demand the benefit of a levy of
the principal’s property, the amount of which must be sufficient to satisfy the debt.
- It is the duty of the sureties to see that the conditions on the guardian’s bond are fulfilled
by the guardian.

RULE 95: SELLING AND ENCUMBERING PROPERTY OF WARD

Section 1, 2, 3, 4 & 5:

 For the sale or encumbrance of property of the ward, a verified petition therefor is
required, but no such verification is required for that purpose with respect to the estate of
a decedent and a mere motion therein will suffice.

 The notice to next of kin required by section 2 is jurisdictional. The next of kin referred
does not mean next of kindred but relatives whose relationships are such as to entitle
them to shares in the estate as distributees.

 An order empowering the guardian to sell property of his ward shall not be effective for
more than one year after it has been granted. In the case of mortgages and other
encumbrances, the one-year period does not apply.

 A guardian may lease property of the ward, but if the lease is to be recorded there must
be proper authority by the court.

o It is believed that the same is required if the term of the lease is more than one year
as such is an act of dominion.

 Appeal, not certiorari or mandamus is the proper remedy against an order of the court a
quo authorizing the sale of ward’s property.

Note:
* modified by Rule on Guardianship of Minors

A guardian may sell or encumber the estate of the ward when:

a. the income of an estate under guardianship is insufficient to maintain the ward and his
family.
b. it appears that it is for the benefit of the ward that is real estate or some part thereof be
sold, or mortgaged or otherwise encumbered, and the proceeds thereof put out at
 interest, or invested in some productive security, or in the improvement or security of
other real estate of the ward.

The grounds enumerated in this section are exclusive. No order will be issued for another
purpose not found in this rule. Sale of the ward’s realty without court order is void. (Inton v.
Quintana)

Next of kin – include those relatives who share in the estate according to the statute of
distribution, including those claiming per stripes or by representation. (Zabate v. Ponce)
o Lope v. Teodoro. Only the children have an interest in the land of their father,
besides the creditors, and only they or the creditor who may have been
prejudiced by the sale have a right to object thereto.
o
Notice may not be dispensed with except where the next of kin and all persons interested in the
estate are her mother and guardian, uncles and aunts who agreed to make the transfer of their
respective shares in the property to the corporation to be organized. (Singco v. Longa, 51 Phil
507; Pardo de Tavera v. El Hogar Filipino Inc.)

Whether it is to the interest of the ward that the sale shall be made – the sole object of the
inquiry in an application to sell.

The court should ascertain and determine whether grounds for selling exist and should select the
part or parts of the property which can be disposed of.

With the enactment of the Family code, the property of the minor is no longer liable for the
maintenance of the Family.

Under Art 226, the property of the child is to be devoted exclusively for his support and
education, unless the title or transfer provides otherwise. The rights of the parents to the fruits
and income of the child’s property shall be limited primarily to the child’s support and
secondarily to the collective daily needs of the family.

The Family Code has effectively abolished parental usufruct over the child’s property and
income.

RULE 96: GENERAL POWERS AND DUTIES OF GUARDIANS

Section 1, 2, 3, 4, 5, 6, 7 & 8:

 The executor or administrator must render within one year and at any other time when
required by the court. In case of a guardian he has to render an inventory and account
annually.

 A guardian just like a trustee is prohibited from making a donation of the properties
entrusted to him (Art. 736).
  Since only the estate of the ward should be included in the inventory in the case of a
married woman under guardianship by reason of insanity her half of the property in a
subsisting conjugal partnership should not be included in the inventory since the
determination thereof requires the prior liquidation of the conjugal partnership.

Note:
The policy of the law does not favor the award of guardianship of an infant’s person to one
party and the guardianship of his estate to another, the reason being that from the separation of
these duties, while little benefit can be anticipated, many in conveniences and considerable
increase of expense must necessarily follow. However, a separate guardian of the person and of
the estate may be appointed by the court, for a person may be competent to discharge certain
duties and incompetent to discharge others. Thus, a widow mother may be competent guardian
for the person of her minor children but because of her want of business experience is
incompetent to manage the minor’s estate. (Lawrence v. Thomas)

Prohibition on Taking Ward’s Property without court approval

Property and effects of the ward are under the control of the court and may not be taken or
expended without the latter’s permission. (Fernandez v. Bello)

Guardian has the right to collect all the assets of the ward, and to reduce to possession the ward’s
choses in action and collect the debts and obligation due him.

Collection of assets and debts, being a ministerial act, guardian may employ an agent to perform
the duty for him, but such agent must be chosen with reasonable care and must be supervised by
him with the same care.

Guardian must manage the ward’s property frugally and without waste

Guardian may join Partition Proceedings

Requirements: (a) such permission or authorization by the court be granted only after hearing
the petition for the grant of such authority; (b) there is notice of the partition to the relatives of
the ward; and (c) authorization is granted only after a careful investigation as to the necessity
and propriety of the proposed action.

Court cannot order the Delivery of the Ward’s Property

GENERAL rule: The court in the separate action has the power to order the delivery of the
ward’s property found to be embezzled, concealed and conveyed and the court in guardianship
proceedings has jurisdiction only to cite persons suspected of having embezzled, concealed or
conveyed property belonging to the ward for the purpose of obtaining information which may
be used in the separate action.

EXCEPT: in extreme cases where property clearly belongs to the ward or where his title thereto
has been already decided

Duty of the Guardian to Submit Inventory

Filing of the inventory is required for it will constitute the basis of subsequent accountings and
settlements.

Necessity for Accounting

Safety of the Guardian, the requirement of business prudence and the welfare of the ward and his
estate demand that so long as unaccounted property of the ward remains in the possession of the
guardian, he is required to render an account and is not entitled to credit expenditures until he has
filed an account showing its terms.

RULE 97: TERMINATION OF GUARDIANSHIP

Section 1, 2 & 3:

 The court which appointed the guardian is also the court competent to decide the petition
for restoration to capacity which is merely a continuation of the original guardianship
proceeding.

 The petition for the removal of the guardian must be filed in the same guardianship
proceeding. It must be based only on the grounds in section2 which must be satisfactorily
proved.

 The notice to the guardian and the ward required in section 1 is only procedural, not
jurisdictional, the lack of which only affects the validity of the proceeding only when
prejudice is caused thereby.

 Marriage or voluntary emancipation terminates guardianship only over the person but not
the property of the ward.

Note:
Grounds for Termination
- death of guardian or ward
- marriage [or voluntary emancipation]
- Civil Code – guardianship over the property remains, only guardianship over the person
is terminated
- Family Code – guardianship over property and person are terminated
- Adjudgment of Competency

Who may file petition? Person previously declared incompetent, guardian, relative or friend.

Guardianship terminates when minority has passed or incapacity has ceased.

Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided,
majority commences at the age of twenty-one years.
Art. 236. Emancipation for any cause shall terminate parental authority over the person and
property of the child who shall then be qualified and responsible for all acts of civil life, save
exceptions established by existing laws in special cases.

Contracting marriage shall require parental consent until the age of 21.

Nothing in this Code shall be construed to derogate from the duty or responsibility of parents
and guardians for children and wards below 21 years of age mentioned in the second and third
paragraphs of Article 2180 of the Civil Code.

Under the rules on guardianship of minors, §25, there is only one ground for termination of
guardianship – emancipation or death of ward.

*Voluntary emancipation under the amendments introduced by RA 6809, is no longer

recognized as a ground for the termination of parental authority or guardianship.