SPECIAL PROCEEDINGS

NOV. 11, 2010

Rule 72
Sec. 1
- Sec. 1 enumerates the subject matter. This enumeration is not exclusive.
- There are other special proceedings found in substantive laws, like:
o 1. Summary judicial proceedings under the Family Code
o 2. Declaration of status of children as abandoned, dependent or neglected under PD 603.
o 3. Suspension, termination or restoration of parental authority
o 4. Voluntary rehabilitation of a drug dependent under RA 9165 (Dangerous Drugs Law)
o 5. Writ of amparo
o 6. Writ of habeas data

Sec. 2
- Do you apply the rules applicable to ordinary actions?
o Yes, as far as practicable.
- What is a special proceeding?
o It is an application or proceeding to establish status or right of a party or a particular fact
o STATUS – for example: annulment of marriage
o RIGHT OF PARTY – for example: right to be free (habeas corpus); right not to be
threatened, that is threat to life or liberty (writ of amparo); right to privacy (writ of habeas
data)
- In special proceedings, the remedy is granted generally upon application of motion.
- Liquidation of an insolvent corporation is a special proceeding.
- Petition for declaration of nullity is a special proceeding.
- Nature – proceeding in rem. So almost always, there is publication. And the judgment is juridically
binding against the whole world.
- How do you distinguish special proceedings from ordinary action?
o Ordinary action or special action – one sues another in a court of justice for the enforcement
or protection of a right or the redress or prevention of a wrong; special proceeding –
establish a status or right of a party or a particular fact
o In ordinary action – we talk about cause of action (Elements: rights of the plaintiff,
obligation on the part of the defendant, violation of the right of plaintiff by the defendant,
causing damage or prejudice to the plaintiff); not so in special proceeding
o In ordinary – there must be a formal demand; not so in special proceeding
o A special action – falls within the jurisdiction of a court of general jurisdiction, that is
ordinary civil actions; special proceeding – within a court of limited jurisdiction, e.g. probate
court – a court of limited jurisdiction
o In ordinary action – if the suit involves members of the same family, plaintiff must allege
earnest efforts to have the case amicably settled among the heirs; that is not applicable to
special proceedings
 In a recently decided case, one of the heirs filed a petition for issuance of letter of
administration intestate/testate. The co-heirs filed a motion to dismiss because the
petitioner failed to allege earnest efforts as required by law. SC said, not required
because a special proceeding, intestate/testate, is not a suit. So the rule on earnest
efforts applies to ordinary civil actions only.
o Special proceeding – is commenced by application, motion or petition. Action – by
complaint.
o Special proceeding – is as a rule, not an adversarial action (no plaintiff, no defendant);
action – an adversarial action
o Special proceeding – terminated either by decision, like change of name, or order, like
rehabilitation of a drug dependent, if not, decreed, like decree of adoption; action – is
terminated by judgment or decision
Rule 73

- Rule 73 is venue not jurisdictional.

- GR: There must be judicial administration when the court issues letters of administration because if
no administration, the creditors might cause chaos (levies any kinds of properties), thus, there must
be judicial administration.

Sec. 1

- Where is the estate of the deceased person settled?

o It depends upon whether the deceased is a resident or non-resident, inhabitant or non-
inhabitant.
o If decedent is inhabitant, whether citizen or alien, his will shall be proved or letters of
administration granted and his estate settled in the proper court because of RA 7691 (the
law expanding the jurisdiction of the MTC). RA 7691, if the gross value of the estate is more
than 400K, RTC. Less or 400K, MTC. In the proper court in the province in which the
decedent resides at the time of his death.
o If he is an inhabitant of a foreign country, then, province in which he had stayed.
- Now, there is a rule of exclusion. The first court taking cognizance of the proceedings excludes all
other courts. The rule says that jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent or location of the estate, shall not be contested in a suit or proceeding
except in appeal from that court in the original case or when the want of jurisdiction appears on the
record.
- Residence here is actual residence, not domicile. Domicile applies only to election law.
- The estate is a distinct personality separate and distinct from the heirs. If there are suits between
the heirs, the estate should not be included.
- The estate of a deceased person is a juridical entity that has a personality of its own, independent
of the heirs, and considered a person. So that the death of the administrator or administrators does
not have the effect of divesting the court of jurisdiction. Jurisdiction subsists because the proper
party is the estate of the decedent. The administrator or executor is only a representative of the
estate. So the estate of the decedent is an indispensable party. It is the real-party-in-interest.
- Proceedings for settlement of estate, generally, are proceedings to the settlement of a deceased
person for the benefit of the creditors and those entitled to the residue, meaning the heirs, after
paying debts, expenses, taxes, so kung unsay nahabilin, residue shall be distributed to the heirs.
- Nature of administration proceedings – in rem. Probate court acquires jurisdiction over the heirs,
legatees, devisees, and other interest persons, like creditors, by means of publication or notice to
the interested parties. Kung in rem gani, usually, publication gyud nah to bind the whole world, just
like application for land title.
- The phrase here “so far as it depends on the place of residence of the decedent or the location of
his estate” is in reality a matter of venue. So if not one of the heirs, legatees, devisees, interested
persons, like creditors, object to venue, then the objection is waived. It is also a rule of law in our
jurisdiction that the court cannot motu proprio dismiss an action or special proceeding on the
ground that venue is improperly laid – there must be a motion.
- Upon the allowance of the will, proceedings are terminated. But after the allowance of the will,
which settles only the extrinsic validity of the will, the case is terminated and the probate court
loses jurisdiction.
- The petition for settlement of estate is different and distinct from and is not a continuation of the
petition for probate of the will. So that the probate court, which earlier probated the will, in the
case of holographic will, cannot claim jurisdiction over the settlement of the estate filed after the
death of the testator. The probate court, which probates the will, and the probate court which
settles the estate, will be one and the same only when the probate of a will is made after the
testator dies.
- Apply the doctrine of exclusion – the court which first acquires jurisdiction by the filing of the
petition excludes all other courts.
- NOTE: If a testator dies and there is a custodian of the will and the custodian delivers the will to
the court without filing a petition for probate, it is the task of the court to fix the time and date of
probing the will. Mu-file lng ka, imo lng gdeliver sa court without proper pleadings, the court has
 already acquired jurisdiction to probate the will. But you have to pay docket and other lawful fees.
- If a will is delivered to the court, there shall be no separate filing of probate because the rule is –
the court first acquiring jurisdiction excludes other courts. With more reason, there shall be no
petition for intestacy.
- Proceedings for the settlement of the estate of a decedent may be testate – where there is a will,
intestate – if there is no will.
- Jurisdiction depends upon the gross value. Now 400K.
- A probate court is a court of limited jurisdiction.
- The question of ownership or title to property is extraneous in the probate proceedings. Probate
court cannot decide with finality the issue of ownership or title to property. It can provisionally
settle the issue of title of ownership for purposes only of including the real estate in the inventory.
- The long standing rule is that probate courts or those in charge of proceedings, whether testate or
intestate, cannot adjudicate or determine title to properties claiming to be part of the estate and is
claimed to belong to outside parties. (Cortes vs CA) Exception:
o 1. When the parties are all heirs of the decedent, then they have the option to submit the
issue of title or ownership to the probate court. Kung naay third persons nga ma prejudice,
dli puydi. But if all of them agreed that the probate court shall, with finality, resolve the
issue of ownership, then the probate court may take cognizance of the case.
o 2. When the claimant of the property and all other parties having interests (heirs, devisees,
legatees, creditors), expressly or impliedly, submit the question of ownership to the probate
court for the interest of third persons are not thereby prejudiced. Although generally, a
probate court may not decide the question of title or ownership, yet if the interested parties
are all heirs or the question is one of probation or advancement or the parties consent to
the assumption of jurisdiction by the probate court and rights of third parties are not
prejudices, then the probate court is competent to decide the question of ownership.
- Now an incident which might arise in connection with special proceedings such as the following:
o 1. Impugning the validity of the will;
o 2. Objecting to the authentication thereof;
o 3. And all demands and claims filed by an heir, legatee, devisee, or party-in-interest to the
testate or intestate succession
 shall be acted upon and decided in the same proceeding
- GR: Probate court cannot issue a writ of execution. Walay executory process ang special
proceedings – probate. Writ of execution, general rule, ari rani sa ordinary civil actions.
o REASON: Because its orders usually refer to the adjudication of claims against the estate
which the executor or administrator may satisfy without the necessity of resorting to a writ
of execution.
o Exceptions where a writ of execution in special proceedings may be issued:
 1. To satisfy distributive shares of devisees, legatees and heirs in possession of
decedent’s assets.

ex. na distribute na adto sa mga heirs ang properties, naay nikalit tunga nga creditor or one heir
who was excluded. So, mo contribute sila kato nakadawat na.
Suppose nabaligya na nila? What is the remedy. recovery. so writ of execution will issue

another exception
2. to enforce payment of expenses of partition
illustration: ang mga heirs nag partition sa property, they hired a geodetic engineer, unya notarized
man, notary public, naa gyuy bayranan, so mag amot. ang katong dili mu amot, WRET OF
EXECUTION (lolz)

3. then to satisfy the cost when a person is cited for examination in probate proceedings

sec. 2
Where estate or property upon death of spouse settled
If marriage is dissolved then community property shall be inventoried, administered, and liquidated
and the debts paid, etc. in the testate/intestate proceedings of the deceased spouse
If both have died, then in the testate or intestate proceedings of either
Husband and Wife, X and Y, borrowed money, 500k, the wife died. The creditor filed an action for
sum of money against the husband. Puyde ba? NO!
It must be in the testate/intestate proceedings of the deceased spouse. Remember conjugal
partnership ceases upon dissolution of marriage.

Where there are no debts to pay, the liquidation and partition may be made in an ordinary action.

When the interested parties, children and the widow, have already reached a compromise
agreement for a viable consideration, the widow renounced in favor of the children all interest and
rights in the estate of the deceased, it is no longer necessary to prepare an inventory of the
conjugal properties and make a liquidation.

Sec. 3 Process
Unsa may process sa testate/intestate proceedings? Sec. 3 dili mo makabasa diha ug writ of
execution, it only says may issue warrants and processes necessary to compel the attendance of
witnesses or to carrying into effect their orders or judgment and all other powers granted them by
law
Usually kung dili ka mu tuman, contempt of court.

If the person does not perform an order or judgment it may issue warrant for the apprehension and
imprisonment of such person until he performs such order or judgment for his release

Sec. 4 Presumption of death

Dili lang ta mag discuss kay tapos na ninyo sa sevel low, and i know u have mastered sevel low
(class: hilaw nga katawa*)

Judicial Declaration of Presumptive Death cannot become final. Of course you know that.

Rule 74
Sec. 1, extra judicial settlement of estate between heirs and Sec. 2, summary settlement of estates
of small value
As i said, the general rule is judicial administration. So that ang mga creditors dili magkagubot.
Naay mo bira sa 6x6 truck, naay mu bira sa balay, nya gubot kaayo sa tana. so aron hapsay, dunay
testate/intestate proceedings, the executor or administator will of course receive claims from the
creditors
There are two exceptions, meaning no Judicial Administration
1. Sec. 1, extra judicial settlement by agreement between heirs
2. Sec. 2, summary settlement of estate of small value
The second seems obsolete, pero sigi lang kay naa may rules of court and it may still apply.

Extra judicial settlement by agreement between heirs, two or heirs for example
when applicable: if the decedent left no will and no debts
Kay kaning administration as i said, kung naay utang, para dili gyud magkagubot
the heirs are all of legal age or if there are minors they are represented
So what shall be done?
The parties may without securing letters of administration divide the estate among themselves as
they see fit. By means of public instrument among themselves filed with the office of the register of
deeds.
So no will and no debts. Heirs are all of legal age.
What document shall they prepare? Deed of Extrajudicial Settlement by Agreement, know by all
men these present (ambot unsa ni)
Suppose they disagree, dili magkasabot ang igsoun. Then they shall resort to an ordinary action of
partition. Again, no judicial administration. Kay unsa may mahimo, sila raman sad, so partition.

Suppose there is only one heir, unsa may agreement nga siya raman usa?No? What is the
procedure? He may adjudicate to himself the entire estate. How? By executing an affidavit of self
adjudication. File with the register of deeds.
 Whether it is by agreement or by affidavit of self adjudication, the distributee/s shal post a bond,
filed with the register of deeds. How much? In an amount equivalent to the value of the personal
property involved. Ang bond, required lang kung personal property. Kung real property ang gibahin,
no bond, okay?

Then what is the condition of the bond? Conditioned upon the payment of any just claim that may
be filed under section 4 of this rule. Posible man paghuman sa partition or paghuman submit sa
extrajudicial settlement, naay mo tunga na creditor or naay mutunga na heir who was not able to
participate. So that is the purpose of the bond.

It shall be presumed that the decedent left no debts if no creditor files a petition or letters of
administration within two years after the death of the decedent.

Sec. 1 requires publication in a newspaper of general circulation. but no extrajudicial shall be

binding upon any person who has not participated therein or who had no notice thereof
Now even when a coheir did not execute any affidavit recognizing extrajudicial partition. However
where he was present during the trial and did not take the witness stand and object, then he is
estoppd from denying the extrajudicial partition.

Gen. Rule : Judicial Partition

Exceptions:
1. Summary Settlement
2. Extrajudicial Partition

Gen Rule: When a person dies intestate or testate but fails to name an executor of his will or the
executor is incompetent/refuses to accept the task, or executor fails to furnish bond required by the
rules of court, the the decedents estate shall be judicially administered and the competent court
shall appoint an administrator.

Sec. 1 rule 74 does not preclude the heirs from instituting administrator proceedings, even if the
estate has no debts or obligation if for good reasons they do not resort to ordinary action of
partition.

Is oral partition valid? Yes it is valid. But of course you cannot have title to yourself. Inig adto nimo
sa Register of Deeds, inig bahin nimo, unsa man, oral?aw dili nana magsilbi.
So there must be a written partition kung gusto naka magpatitle.

The requirement that a partition be put in a public document and registered has for its purpose
protection of the creditors and of the heirs themselves against party claims.
The object of registration is to serve as constructive notice to others.

No law requires partition among heirs to be in writing and be registered in order to be valid (Vda De
Reyes vs CA)
Reason: Partition among heirs is not legally deemed conveyance of property considering that it
involves not a transfer from one to another but rather a confirmation or ratification of title or right
to property that an heir is renouncing in favor of another heir who accepts and receives the
inheritance.
Diba inig kamatay sa parents, title passes to the heirs. So there is no conveyance. Iconfirm lang.
Are you heirs?Yes. So gi confirm lang ang ownership of the heirs.(ears)

Now what are the remedies against extra judicial settlement approved by the court?
X, Y, and Z, heirs, naghimo sila ug deed of extra judicial partition. Naa d i na prejudice, half brother
or unsa. So what is the remedy of the excluded ear(heir).

Either file a petition for relief under rule 38, nakahinumdum mu? The judgment has already become
final and executory but because of fraud, accident, mistake, excusable negligence a party is
 prejudiced. File a petition for relief. There are two periods, is it not? 6 months and 60 days.
The other remedy is to file a petition to anOL(annul) the extra judicial settlement. Annulment here
is under rule 47, lack of jurisdiction and extrinsic fraud. Period limitation is 4 years from the
discovery of the fraud.

Even a petition(?) for issuance of letters of administration has been filed, the court upon motion
may convert the petition into a petition for partition, to avoid delay where the decedent left no
debts and the heirs and legatees are all of age.

What are the requirements for validity under section 1.

1. decedent left no debts
2. heirs and creditors all of legal age
3. partition by means of public instrument or affidavit

A written partition or extrajudicial settlement duly acknowledged before a notary public is necessary
to enable the heirs to register the same and secure a transfer certificate of title of the land which
has been adjudicated to them.
Of course do not forget payment of taxes. Dili gyud na ma transfer without payment of taxes.

A judicial partition in probate or intestate proceedings bind the heirs who are not parties thereto.

Sec. 2, summary settlement of estate of a small value

Again no judicial administrator because the gross value of the estate is 10k only. nganu ni ingon
man ko obsolete? You have to file a petition with the court. So you have to hire a lawyer, 10k ra.
Acceptance fee 20k. asa naman 10k? Publication in a newspaper of general circulation, 3 successive
weeks. Pila man per publication, kung sunstar i think its 5k or 10k. So hain naman ang estate of e-
small value? Papas. But mahitabu gihapon ni. Even if the property is worth 10k, kung duna nay
sentimental value to you, it may be worth 1melyon to you.(char)

So what is the procedure? Determine the value. Gross value of the estate not exceeding 10k. So
necessarily ani ni sya sa MTC, kaning RTC diri sayop ra ni ha.
How will you commence? File a petition.
Who will file? Interested person.
After filing, notice then hearing.
So notice to interested persons for may proceed summarily without delay.
And grant a proper allowance of the will bisag 10k ra. no?
Then to determine who are the persons entitled to participate in the estate and to apportion and
divide it among themselves. SO na distribute.
Ang distributees are required to post bond under section 3. That is before allowing the partition or
to require the distributees a property other than real (blah?), so personal na jd ni.
File ka ug bond, what is the condition of the bond? For the payment of any just claim which may be filed
under sec. 4. So recess. One hour. hikhik

----
class: ahh grabihaaaa, *laughter
mai2x: salva, ikaw daw mu transcribe
salva: diii madaaa oi…
Mai2x: wa daw mo transcribe, hikhik
(pero ang ending kami ni maimai ang nag transcribe T_T)

SPECIAL PROCEEDINGS

NOV. 11, 2010 (PART 2)

Sec. 4. Liability of distributees and estate. - If it shall appear at any time within two (2) years
after the settlement and distribution of an estate in accordance with the provisions of either
of the first two sections of this rule, that an heir or other person has been unduly deprived of
his lawful participation in the estate, such heir or such other person may compel the
settlement of the estate in the courts in the manner hereinafter provided for the purpose of
satisfying such lawful participation. And if within the same time of two (2) years, it shall
appear that there are debts outstanding against the estate which have not been paid, or that
an heir or other person has been unduly deprived of his lawful participation payable in money,
the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle
the amount of such debts or lawful participation and order how much and in what manner
each distributee shall contribute in the payment thereof, and may issue execution, if
circumstances require, against the bond provided in the preceding section or against the real
estate belonging to the deceased, or both. Such bond and such real estate shall remain
charged with a liability to creditors, heirs, or other persons for the full period of two (2) years
after such distribution, notwithstanding any transfers of real estate that may have been made.

- Liability of distributes

o So they sign an extrajudicial settlement. 2 years later or within 2 years, somebody came
forward and says that “I am a creditor or an heir”. That’s Sec. 4.

o If it shall appear, at any time within 2 years after the settlement and distribution of the
estate, that an heir or other person has been unduly deprived of his participation. So what is
the right of that person who was unlawfully excluded?

 Answer: Compel the settlement of the estate in the courts. What is the purpose? For
the purpose of satisfying such lawful participation.

o Suppose within 2 years, it was discovered that there are debts outstanding against the
estate which has not been paid or that an heir or person has been unduly deprived of his
lawful participation, what shall the court do?

 It shall order to settle the amount of such debts or lawful participation and order
how much and in what manner each distributee shall contribute in payment thereof.

 If the distributee failed or refused to contribute, then, a writ of execution may be

issued. That is writ against the bond or against the real estate belonging to the
deceased or both.

o What is the purpose of the bond?

 Those who have been deprived of their rights may go after the bond or file an action
to recovery of their share in the real property.

o When is the 2-year-period to object not applicable?

 The provision barring distributee or heirs from objecting to an extrajudicial partition

after the 2-year-prescriptive period is applicable only to persons who have
participated or taken part or had notice of the extrajudicial partition and in addition,
when the provision of Sec. 1 Rule 74 has been complied with.

 Without the participation of all persons involved in the proceedings, the extrajudicial
settlement cannot be binding on said persons.

 If you buy a parcel of land, be sure to investigate because if you failed to investigate
the history of the title, you cannot claim good faith and the sale or mortgage of the
land to you may be voided.

o Heirs are not required to respond with their personal property for the death of the deceased
ancestor.

Sec. 5. Period for claim of minor or incapacitated person. - If on the date of the expiration of
the period of two (2) years prescribed in the preceding section the person authorized to file a
claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may
present his claim within one (1) year after such disability is removed.
 

- Period for claim of minor or incapacitated person

o If on the date of the expiration of the 2-year-period, the person authorized to file a claim is
a minor or incapacitated person, he may present his claim within 1 year after such disability
is removed.

o How do you distinguish extrajudicial settlement (EJS) from summary settlement (SS)?

 1. EJS – no debts; SS – there may be debts, in fact, anyone may claim within 2
years.

 2. EJS – no will; SS – there may be a will

 3. EJS – no judicial proceeding; SS – judicial because you have to file a petition

o Now the heirs and distributes are liable despite transfers of their shares.

RULE 75

PRODUCTION OF WILL;

ALLOWANCE OF WILL NECESSARY

 
Sec. 1. Allowances necessary; Conclusive as to execution. - No will shall pass either real or
personal estate unless it is proved and allowed in the proper court. Subject to the right of
appeal, such allowance of the will shall be conclusive as to its due execution.

- No will shall pass, real or personal property, unless it is proved and allowed. Subject to the right of
appeal, such allowance of the will shall be conclusive as to its due execution (extrinsic).

- 2 kinds of wills:

o 1. Notarial will – executed with the intervention of the notary public under the Civil Code.
There are also attesting witnesses.

o 2. Holographic will – in accordance with Art. 810, one that is entirely written, dated, and
signed by the hand of the testator himself.

- Purpose of probate:

o To definitely settle all questions concerning capacity of the testator, proper execution and
witnessing of the will and testament irrespective of whether the provisions are valid and
enforceable.

- Probate courts inquiry is limited to the extrinsic validity of the will.

- In order that a will may take effect, it has to be probated, legalized or allowed in the proper
testamentary proceeding.

- GR: Extrinsic validity of a will is not considered since consideration thereof comes only after the will
has been proved and allowed. But there is an exception.

o E: Where the intrinsic validity was first determined as when the defect of the will is apparent
on its face and the probate of the will will become a useless ceremony if it is intrinsically
invalid.

Sec. 2. Custodian of will to deliver. - The person who has custody of a will shall, within twenty
(20) days after he knows of the death of the testator, deliver the will to the court having
jurisdiction, or to the executor named in the will.

- What is the duty of custodian of the will?

o Duty is to deliver the will to the court or to the executor within 20 days after knowledge of
the death of the testator.

Sec. 3. Executor to present will and accept or refuse trust. - A person named as executor in a
will shall, within twenty (20) days after he knows of the death of the testator, or within
twenty (20) days after knows that he is named executor if he obtained such knowledge after
the death of the testator, present such will to the court having jurisdiction, unless the will has
reached the court in any other manner, and shall, within such period, signify to the court in
writing his acceptance of the trust or his refusal to accept it. 

- It is the task of the executor to present the will and accept or refuse the trust. So he shall signify in
writing his acceptance of the trust or his refusal to accept it.

Sec. 4. Custodian and executor subject to fine for neglect. - A person who neglects any of the
duties required in the two last preceding sections without excuse satisfactory to the court
shall be fined not exceeding two thousand pesos.

- Under Sec. 4, a custodian or an executor who neglects any of his duties under the last 2 preceding
sections shall be subject to fine.

Sec. 5. Person retaining will may be committed. - A person having custody of a will after the
death of the testator who neglects without reasonable cause to deliver the same, when
ordered so to do, to the court having jurisdiction, may be committed to prison and there kept
until he delivers the will.

- A person retaining the will or who neglects without reasonable cause to deliver the will may be
committed to prison and there kept until he delivers the will.

RULE 76 

ALLOWANCE OR DISALLOWANCE OF WILL

 
Sec. 1. Who may petition for the allowance of will. - Any executor, devisee, or legatee named
in a will, or any other person interested in the estate, may, at any time after the death of the
testator, petition the court having jurisdiction to have the will allowed, whether the same be
in his possession or not, or is lost or destroyed.

The testator himself may, during his lifetime, petition the court for the allowance of his will.

- Who may petition for the allowance of the will?

o The following:

 1. Executor

 2. Devisee

 3. Legatee named in a will

 4. Or any other person interested in the estate, like the creditor

- When shall the petition be filed?

 o At any time after the death of the testator.

o The rule on prescription or reglementary period does not apply because no will shall pass
either real or personal property unless the will is proved and allowed.

- Now, petition must be filed whether the will is in the possession of the petitioner or even if the will
is lost or destroyed because if the will is lost or destroyed, then the petitioner must prove its loss
or destruction in accordance with the Rules.

- Testator himself, during his lifetime, may petition the court for the allowance of the will.

- What is the meaning of the phrase “person interested in the estate”?

o This phrase refers to an heir or one who has a claim against the estate such as the creditor.

- What is the reason why probate may be allowed during the lifetime of the testator?

o According to the SC in a case, it is far easier for the courts to determine the mental
condition of the testator during his lifetime than after his death. That probate during the
testator’s life will lessen the number of contests.

Sec. 2. Contents of petition. - A petition for the allowance of a will must show, so far as known
to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or
decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name of the person having custody of it.
But no defect in the petition shall render void the allowance of the will, or the issuance of
letters testamentary or of administration with the will annexed.

- Contents of petition:

o 1. Jurisdictional facts

o 2. Names, ages, and residences of the heirs, legatees and devisees of the testator or
decedent

o 3. Probable value and character of the property of the estate

 It is not actual value but probable value only because some properties may be
excluded or included. There may be collation.

 Character – real or personal, corporeal or incorporeal, capable of manual delivery or

not capable of manual delivery

o 4. Name of person for whom letters are prayed

o 5. If the will has not been delivered to the court, the name of the person having custody of
it

- Annexing of the original of the will in the petition is not a jurisdictional requirement. The petitioner
may present a machine copy or Xerox copy only subject of course to the presentation of the original
copy under the best-evidence rule.

- We have a new rule on electronic evidence. An electronic document is a functional equivalent of a

paper-based document.

- What is the next step?

 o Sec. 3

Sec. 3. Court to appoint time for proving will. - Notice thereof to be published. When a will is
delivered to, or a petition for the allowance of a will is filed in, the court having jurisdiction,
such court shall fix a time and place for proving the will when all concerned may appear to
contest the allowance thereof, and shall cause notice of such time and place to be published
three (3) weeks successively, previous to the time appointed, in a newspaper of general
circulation in the province.
But no newspaper publication shall be made where the petition for probate has been filed by
the testator himself.

- The court shall fix the time and place for probate of the will, then, cause notices to be sent, then
publication in the newspaper of general circulation three weeks successively. If filed by the testator
himself, no publication is required.

Sec. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. - The
court shall also cause copies of the notice of the time and place fixed for proving the will to be
addressed to the designated or other known heirs, legatees, and devisees of the testator
resident in the Philippines at their places of residence, and deposited in the post office with
the postage thereon prepaid at least twenty (20) days before the hearing, if such places of
residence be known. A copy of the notice must in like manner be mailed to the person named
as executor, if he be not be petitioner; also, to any person named as co-executor not
petitioning, if their places of residence be known. Personal service of copies of the notice at
least ten (10) days before the day of hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will, notice shall be sent only to his
compulsory heirs.

- Services of notice on individual heirs or legatees or devisees is a matter of procedural requirement,

not a jurisdictional requirement.

- How shall the heirs, devisees, legatees and executors be notified?

o Either by mail or personally at their places of residence.

- Notice must likewise be furnished the executor.

- Personal service of the notice – at least 10 days before the hearing, shall be equivalent to mail.

Sec. 5. Proof at hearing. - What sufficient in absence of contest. At the hearing compliance
with the provisions of the last two preceding sections must be shown before the introduction
of testimony in support of the will. All such testimony shall be taken under oath and reduced
to writing. If no person appears to contest the allowance of the will, the court may grant
allowance thereof on the testimony of one of the subscribing witnesses only, if such witness
testify that the will was executed as is required by law.

In the case of a holographic will, it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will and the signature are
in the handwriting of the testator. In the absence of any such competent witness, and if the
court deem it necessary, expert testimony may be resorted to.

- Then hearing – presentation of evidence

- At the hearing, the lawyer must show compliance with the provisions of Secs. 3 and 4 Rule 76.
Then, present testimonial evidence.
 - If no person appears to contest the will, meaning there is no oppositor, then only testimony of 1
person is required if the witness testify that the will is executed as is required by law.

- How about holographic will?

o 1 witness who knows the handwriting and signature of the testator explicitly declared that
the will and the signature are in the handwriting of the testator.

- The court may resort to expert testimony.

Sec. 6. Proof of lost or destroyed will. - Certificate thereupon. No will shall be proved as a lost
or destroyed will unless the execution and validity of the same be established, and the will is
proved to have been in existence at the time of death of the testator, or is shown to have been
fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge,
nor unless its provisions are clearly and distinctly proved by at least two (2) credible
witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and
certified by the judge, under the seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.

- Burden of proof is on the proponent.

- What is the procedure in proving lost or destroyed will? What shall the proponent do?

o First, prove the execution and validity of the will and that the will is proved to have been in
existence at the time of the death of the testator. He might have destroyed it before his
death.

o Or is shown to have been fraudulently or accidentally destroyed in the lifetime of the

testator without his knowledge. So there was really no intention to revoke.

o Nor unless its provisions are clearly and distinctly proved by at least 2 credible witnesses.

- Suppose there is lack of opposition, will that relieve the proponent of establishing due execution?

o Answer is in the negative. He must still prove due execution of the will.

Sec. 7. Proof when witnesses do not reside in province. - If it appears at the time fixed for the
hearing that none of the subscribing witnesses resides in the province, but that the deposition
of one or more of them can be taken elsewhere, the court may, on motion, direct it to be
taken, and may authorize a photographic copy of the will to be made and to be presented to
the witness on his examination, who may be asked the same questions with respect to it, and
to the handwriting of the testator and others, as would be pertinent and competent if the
original will were present.

- Suppose the witnesses do not reside in the province, what shall be done?

o Sec. 7. Take the deposition and the photocopy of the will may be presented to the
deponents.

Sec. 8. Proof when witnesses dead or insane or do not reside in the Philippines. - If it appears
at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that
none of them resides in the Philippines, the court may admit the testimony of other witnesses
to prove the sanity of the testator, and the due execution of the will; and as evidence of the
execution of the will, it may admit proof of the handwriting of the testator and of the
subscribing witnesses, or of any of them.
 - Suppose the witnesses are dead or insane, what shall be done?

o The court may admit testimonies of other witnesses to prove sanity of the testator, due
execution of the will, etc.

Sec. 9. Grounds for disallowing will. - The will shall be disallowed in any of the following
cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of
its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;
(e) 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.

- Grounds for disallowance:

o 1. Not executed and attested as required by law

o 2. Testator was insane, or otherwise mentally incapable to make a will, at the time of its
execution

o 3. Executed under duress, or the influence of fear, or threats

o 4. Procured by undue and improper pressure and influence, on the part of the beneficiary,
or some other person for his benefit

o 5. 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

- On the issue in the probate of will, it is extrinsic validity pertaining to the testamentary capacity and
compliance with the normal requirements of solemnities as prescribed by law.

- Intrinsic validity relates to descend and distribution. It should come later.

Sec. 10. Contestant to file grounds of contest. - Anyone appearing to contest the will must
state in writing his grounds for opposing its allowance, and serve a copy thereof on the
petitioner and other parties interested in the estate.

- Suppose there is an oppositor or contestant, contestant or oppositor shall state in writing the
grounds for opposing the will.

- When may a person be allowed to intervene or to contest?

o He must have an interest in the estate or in the will or in the property to be affected by
either as executor or claimant of the estate.

o An interested party has been defined as one who benefited by the estate such as an heir, or
one who has a claim against the estate, like a creditor.

Sec. 11. Subscribing witnesses produced or accounted for where will contested. - If the will is
contested, all the subscribing witnesses, and the notary in the case of wills executed under
the Civil Code of the Philippines, if present in the Philippines and not insane, must be
produced and examined, and the death, absence, or insanity of any of them must be
satisfactory shown to the court. If all or some of such witnesses are present in the Philippines
but outside the province where the will has been filed, their deposition must be taken. If any
or all of them testify against the due execution of the will, or do not remember having
attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if
the court is satisfied from the testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the manner required by law.
If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who
know the handwriting of the testator explicitly declare that the will and the signature are in
the handwriting of the testator; in the absence of any competent witness, and if the court
deem it necessary, expert testimony may be resorted to.

- When shall subscribing witnesses be produced?

o If the will is contested, all the subscribing witnesses, including the notary public, in the case
of will executed under the Civil Code, if present. So they must be produced and examined.

o If they are residing out of the province, then take the deposition.

- The will may be allowed if the court be satisfied from the testimony of witnesses and from evidence
presented that the will was executed and attested in the manner required by the Civil Code.

- What if the will contested is holographic will? How many witnesses?

o At least 3 witnesses who know the handwriting of the testator and explicitly declare that the
will and the signature and the handwriting of the testator.

- In the absence of competent witnesses, the court may invite expert witnesses.

- Objective of solemnities of execution of will. What is the purpose of probating non-holographic

will?:

o To close the door against bad faith and fraud

o To avoid substitution of wills and testaments

o To guaranty the truth and authenticity

o These formal solemnities include subscription, attestation and acknowledgment required

under Art. 805 Civil Code.

- What law governs forms of will?

o Law enforced at the time of execution of the will governs the validity of the will as to form.

Sec. 12. Proof where testator petitions for allowance of holographic will. - Where the testator
himself petitions for the probate of his holographic will and no contest in filed, the fact that he
affirms that the holographic will and the signature are in his own handwriting, shall be
sufficient evidence of the genuineness and due execution thereof. If the holographic will is
contested, the burden of disproving the genuineness and due execution thereof shall be on
the contestant. The testator may, in his turn, present such additional proof as may be
necessary to rebut the evidence for the contestant.

- Testator must affirm that the holographic will and the signature are his own handwriting. It shall be
sufficient evidence of the genuineness and due execution.
 - If contested, the burden of disproving genuineness and due execution shall be on the contestant.

Sec. 13. Certificate of allowance attached to proved will. - To be recorded in the Office of
Register of Deeds. If the court is satisfied, upon proof taken and filed, that the will was duly
executed, and that the testator at the time of its execution was of sound and disposing mind,
and not acting under duress, menace, and undue influence, or fraud, a certificate of its
allowance, signed by the judge, and attested by the seal of the court shall be attached to the
will and the will and certificate filed and recorded by the clerk. Attested copies of the will
devising real estate and of certificate of allowance thereof, shall be recorded in the register of
deeds of the province in which the lands lie.

- When shall the certificate of allowance be issued and where shall it be recorded?

o If court is satisfied that the will was duly executed, testator was of sound and disposing
mind, no vice of consent, then a certificate of allowance signed by the judge, attested by
the seal of the court, shall be attached to the will. And the will and certificate filed and
recorded by the clerk of court.

- What are the steps in the allowance of wills? Summary:

o First, a will is delivered to or a petition for allowance of the will is filed in the court of proper
jurisdiction. Bisan gideliver rana siya, the court will acquire jurisdiction upon its receipt of
the will, even if there is no petition.

o Second, court shall fix the time and place of hearing or proving the will.

o Third, notice of time and place which should be published 3 successive weeks in the
newspaper of general circulation.

o Fourth, probate.

o Last, allowance or disallowance.

RULE 77
 
ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE
THEREUNDER
 
Sec. 1. Will proved outside Philippines may be allowed here. - Wills proved and allowed in a
foreign country, according to the laws of such country, may be allowed, filed, and recorded by
the proper Court of First Instance in the Philippines.ch

- This is a situation where there is a will proved and allowed abroad and the decedent has property
or properties in the Phils.

- There are 2 kind of administration:

o 1. Principal administration abroad

o 2. Ancillary administration here in the Phils.

Sec. 2. Notice of hearing for allowance. - When a copy of such will and of the order or decree
of the allowance thereof, both duly authenticated, are filed with a petition for allowance in the
Philippines, by the executor or other person interested, in the court having jurisdiction, such
court shall fix a time and place for the hearing, and cause notice thereof to be given as in case
of an original will presented for allowance.

- A will proved outside the Phils. may be allowed, filed and recorded by the proper court.

- What is the task of the court?

o Copy of the will and order or decree of allowance, authenticated by the executor or person
interested. So court is required to fix the time and place of hearing.

Sec. 3. When will allowed, and effect thereof. - If it appears at the hearing that the will should
be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance,
signed by the judge, and attested by the seal of the court, to which shall be attached a copy of
the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if
originally proved and allowed in such court.

- After hearing, what happens?

o Sec. 3

- If it appears that the will shall be allowed in the Phils., then the court shall allow it and the
certificate of its allowance shall be issued.

- A foreign will which has been executed and probated in a foreign country in accordance of the laws
of that foreign country may be reprobated in the Phils. so kung giprobate abroad, unya dad-on sa
Phils. kay naai property dnhi sa decedent, it’s called reprobate.

- Subject matter: property of the decedent in the country

- Now, in our jurisprudence, Phil. courts cannot take judicial notice of foreign laws and procedures.
Kung unsai law sa uban country, it’s not a question of law here, it’s a question of fact. You have to
prove. The only exception perhaps is if the foreign law is a generally accepted principle of
international law which becomes part of the law of the land because of the doctrine of
incorporation. So there is a necessity of presenting evidence on the foreign laws upon which the
probate in the foreign country was done. In the absence of proof of that probate law and
procedure, it is presumed that the law and procedure there is the same as our procedure here in
the Phils.

Sec. 4. Estate, how administered. - When a will is thus allowed, the court shall grant letters
testamentary, or letters of administration with the will annexed, and such letters
testamentary or of administration, shall extend to all the estate of the testator in the
Philippines. Such estate, after the payment of just debts and expenses of administration, shall
be disposed of according to such will, so far as such will may operate upon it; and the residue,
if any, shall be disposed of as is provided by law in cases of estates in the Philippines
belonging to persons who are inhabitants of another state or country.

- So how shall the estate be administered?

o Sec. 4. By a principal administration tua man sa abroad, dnhi ancillary manta. The courts
shall grant letters of testamentary or administration and such letters of testamentary or
 administration shall extend to all the estate of the testator in the Phils. Then debts and
expenses shall be paid and the residue shall be disposed of according to the will.

- So what is ancillary administration? Or when is it proper?

o It is proper whenever the person dies leaving in the country other than that of his domicile,
property to be administered in the nature of assets of the decedent, liable for his individual
debts or to be distributed among his heirs.

- What is the distinction between principal administartion and ancillary administration?

o If the person dies in a state owning property in the country of his domicile as well as in a
foreign country, administration shall be had in both countries. That which is granted in the
jurisdiction of the decedent or decedents’ last domicile is termed principal administration.
While other administration is termed ancillary administration.

RULE 78
 
LETTERS TESTAMENTARY AND OF ADMINISTRATION,
WHEN AND TO WHOM ISSUED
 

- Kung dunai will, letters testamentary. If there is no will or if there is an executor but is incompetent
or if there is an executor but refuses to accept the trust or if there is an executor, he fails to post
bond, so instead of letters testamentary, it will be letters of administration.

Sec. 1. Who are incompetent to serve as executors or administrators. - No person is

competent to serve as executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of
drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction
of an offense involving moral turpitude.

- Who are competent to serve as executors or administrators?

o The following are disqualified:

 Minor

 Non-resident

 Unfit to execute the duties of the trust

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

- Executor of executor cannot administer the estate

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

- Married woman may serve

- What is the meaning of unsuitableness for appointment as administrator?

 o Unsuitableness may constitute or consists in adverse interest of some kind with hostility to
those immediately interested in the estate to such an extent as to render the appointment
inadvisable.

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

- When the will is proved and allowed, under Sec. 4, then the court shall issue letters testamentary.
That is if the executor is competent, accepts the trust and posts bond. The 3 requirements. If usa
ka requirement dili ma comply, then the executor may be replaced by an administrator.

- The rule in the Phils. is it is incumbent upon the court to respect the desire of the testator. It is the
prerogative of the testator to choose the executor of his estate.

Sec. 5. Where some coexecutors disqualified others may act. - When all of the executors
named in a will can not act because of incompetency, refusal to accept the trust, or failure to
give bond, on the part of one or more of them, letters testamentary may issue to such of them
as are competent, accept and give bond, and they may perform the duties and discharge the
trust required by the will.

- Suppose there are several executors, some of them are disqualified, under Sec. 5, those qualified
may serve.

Sec. 6. When and to whom letters of administration granted. - If no executor is named in the
will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a
person dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of kin,
requests to have appointed, if competent and willing to serve;chanrobles virtua law library
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin,
neglects for thirty (30) days after the death of the person to apply for administration or to
request that administration be granted to some other person, it may be granted to one or
more of the principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such other
person as the court may select.

- Sec. 6, when and to whom letters of administration granted?

o So dili letters testamentary, kung di letters of administration. Meaning, instead of executor,

administrator. In what instances?

 1. Executor or executors are incompetent

 2. Executor refused the trust

 3. Executor failed to give bond

 4. If the person dies intestate

 so letters of administration shall issue. To whom?

o There is an order of preference. Take not that this order of preference

may be disregarded by the court if anyone or all of them are
incompetent or unsuitable:

 1. Surviving husband or wife

  2. Person chosen by such husband or wife

 3. In their absence, one or all of the principal creditors

 4. Other person as the court may select

- The judicial administrator is the legal representative, not only of the estate but also of the heirs,
devisees, legatees and all persons interested in the estate.

- In the appointment of administrator, the principal consideration is the interest in said estate of one
to be appointed administrator.

- GR: Order of preference in the appointment of administrator.

o E: When there are attendant facts and circumstances, the court may exercise its discretion
and may disregard the order of preference.

- If the court gravely abuses its discretion in the appointment of administrator, then the remedy of an
interested party is to file a petition for certiorari under Rule 65 of the Rules of Court.

- Why is it that this order of preference may be disregarded?

o It’s because all of them have the same degree of interest in the estate.

- GR: Probate court cannot arbitrarily disregard the preferential right of the surviving spouse. The
court may appoint another if the surviving spouse is unsuitable.

- A person who has liabilities to the estate or to the heirs of the deceased cannot be appointed
administrator – conflict of interest.

- The appointment of an administrator requires that there be notice and hearing to all known heirs
and interested parties. It is essential to the validity of the appointment of administrator.

- The court is not precluded from appointing the surviving spouse and the next of kin as co-
administrators.

RULE 79
 
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY.
PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION
 
Sec. 1. Opposition to issuance of letters testamentary; Simultaneous petition for
administration. - Any person interested in a will may state in writing the grounds why letters
testamentary should not issue to the persons named therein executors, or any of them, and
the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A
petition may, at the same time, be filed for letters of administration with the will annexed.

- Opposition, who may oppose?

o Any person interested in a will. They should file a written opposition.

- The next step is for the court to hear the opposition. There must be prior notice.

- The petitioner may at the same time pray that letters of administration be granted to him.

- An assigning heir cannot interfere or participate in settlement proceedings. Meaning, if an heir

assigns his property to a third person, he’s no longer a real-part-in-interest.
 - Interested person is one who will be benefited by the estate such as an heir or one who has a claim
against the estate such as creditor and whose interest is material and direct, not contingent or
incidental interest. It must be present interest or interest in esse.

Sec. 2. Contents of petition for letters of administration. - A petition for letters of

administration must be filed by an interested person and must show, so far as known to the
petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, and the names and residences of the
creditors, of the decedent
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters of administration are prayed.
But no defect on the petition shall render void the issuance of letters of administration.

- Contents of petition for letters of administration:

o 1. Jurisdictional facts

o 2. Facts about the heirs

o 3. Probable value and character of the property of the estate

o 4. Name of person for whom letters of administration are prayed

Sec. 3. Court to set time for hearing. Notice thereof. - When a petition for letters of
administration is filed in the court having jurisdiction, such court shall fix a time and place for
hearing the petition, and shall cause notice thereof to be given to the known heirs and
creditors of the decedent, and to any other persons believed to have an interest in the estate,
in the manner provided in Sections 3 and 4 of Rule 76.
 
Sec. 4. Opposition to petition for administration. - Any interested person may, by filing a
written opposition, contest the petition on the ground of the incompetency of the person for
whom letters are prayed therein, or on the ground of the contestant's own right to the
administration, and may pray that letters issue to himself, or to any competent person or
persons named in the opposition.
Sec. 5. Hearing and order for letters to issue. - At the hearing of the petition, it must first be
shown that notice has been given as hereinabove required, and thereafter the court shall hear
the proofs of the parties in support of their respective allegations, and if satisfied that the
decedent left no will, or that there is no competent and willing executor, it shall order the
issuance of letters of administration to the party best entitled thereto.

Sec. 6. When letters of administration granted to any applicant. - Letters of administration

may be granted to any qualified applicant, though it appears that there are other competent
persons having better right to the administration, if such persons fail to appear when notified
and claim the issuance of letters to themselves.

- During the first hearing, counsel for petitioner must establish compliance with the jurisdictional
facts. And what are these jurisdictional facts?

o First, prove the death of the testator. (death certificate)

o Second, residence at the time of death. If non-resident, then the fact of being a resident of
a foreign country but he has estate in the country.

o Third, for the court to set the time for hearing. Notices shall be sent to known heirs and
creditors of the decedent or any interested party.
  What is the effect of failure to give notice?

 Proceedings for the settlement of the estate is void. It may be annulled.

- There may be opposition to petition for administration. Who may oppose? Any interested person.
They should file a written opposition and should state the grounds, like incompetency of the person
for whom letters are prayed, on the ground of contestant’s own right to administration, or to any
competent person named in the opposition.

- Hearing. The opposition may be granted or denied.

- So present evidence. If the court is satisfied that the decedent left no will or that there is no
competent and willing executor, it shall order issuance of letters of administration.

- Even if there is a qualified applicant but such qualified applicant failed to appear when notified and
failed to claim the issuance of letters to themselves, then the court may grant letters of
administration to any qualified person.

RULE 80
 
SPECIAL ADMINISTRATOR
 
Sec. 1. Appointment of special administrator.- When there is delay in granting letters
testamentary or of administration by any cause including an appeal from the allowance or
disallowance of a will, the court may appoint a special administrator to take possession and
charge of the estate of the deceased until the questions causing the delay are decided and
executors or administrators appointed.

- When shall a special administrator be granted?

o When there is delay in granting letters of administration or letters testamentary by any

cause including a pending appeal, the court may appoint a special administrator.

o If the regular administrator has a claim against the estate, the court may likewise appoint a
special administrator until the question causing the delay are decided and executors or
administrators appoint.

- What is the task of the special administrator?

o To take possession and charge of the estate.

- Now do not be confused, the rules governing appointment of a regular administrator do not apply
to appointment of special administrator such as requirement of fitness or unfitness. What is the
reason why said rules do not apply to the appointment of special administrator?

o It’s because the appointment of a special administrator is temporary.

o So also the preferential right of persons under Sec. 6 applies only to the appointment of a
regular administrator, therefore, the surviving spouse may not claim preferential rights.

o Court employees should not be appointed special administrators. There might be conflict of
interest.

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

o Take possession and charge of goods, chattels, etc…

o Preserve them for the executor or administrator who may be appointed and qualified in the
future

o And for that purpose, special administrator may commence and maintain suits as
administrator.

- Can the special administrator sell perishable goods?

o Yes, only if there is an order of the court.

- Prohibitions:

o Special administrator shall not be liable to pay any debts of the deceased, exception:

 If the court so orders

- A special administrator is also required to post bond for the performance of his task.

Sec. 3. When powers of special administrator cease; Transfer of effects; Pending suits. - When
letters testamentary or of administration are granted on the estate of the deceased, the
powers of the special administrator shall cease, and he shall forthwith deliver to the executor
or administrator the goods, chattels, money, and estate of the deceased in his hands. The
executor or administrator may prosecute to final judgment suits commenced by such special
administrator.

- When shall the power of a special administrator cease?

o If there is already letters testamentary or administration granted to an administrator, then

the powers of the special administrator shall cease.

o And what is his duty?

 He shall deliver to the executor or the administrator appointed the goods, chattels,
etc….

- The function of a special administrator is only to collect and preserve the property of the estate and
to return a complete inventory. He cannot pay the debts of the decedent unless expressly ordered
by the court to do so.

Rule 81. Bonds of executors and administrators. The bonds should be posted before the issuance of letters
testamentary or administration, the court shall fix the bond.
What are the conditions of the bond?
- To make and return to the court a true and complete inventory of the goods and other property of
the deceased which shall have come to his knowledge or even to the possession of any person for
him.
- To administer according to the rules of court
- To render a true and correct account of his administration within 1 year and at any time when
required by the court.
- To perform all orders the court shall direct him to perform.

Now, the purpose of the administration is liquidation of the estate and distribution of the residue if any.
Residue comes after payments of debts, charges and taxes.
If the deceased directs in his will that the executor serve without bond or only his personal bond, then he
may be allowed by court to give bond in such sum and in such surety as the court approves. What is the
condition? To pay the debts of the testator. Court may require further bonds if there is change in
circumstances of the executor or administrator or for other sufficient cause. Two or more persons
appointed as executors or as administrators may post joint bonds or separate bonds.

Under Section 4, the special administrator is also required to post a bond. What is the purpose? That he
will make and return a true inventory account for the goods, chattels etc. That he will truly account for
such as received by him, when required by the court.

RULE 82. Revocation, Death, Resignation, Removal

What happens if a will is discovered but letters of administration is granted? Consequence, letters of
administration shall be revoked and all powers of administrator shall cease. He shall fortwith surrender the
letters of the court and render his account.

Section 2. Removal, Resignation.

What are the grounds of removal of administrator or executor?

 Neglect to render account and settle the estate according to law, to perform an order or judgment
of the court, to perform an order or duty as expressly provided in the rules of court
 He absconds
 Becomes insane
 Or otherwise incapable or unsuitable to discharge the trust

The court may remove him. The court may also allow the executor or administrator to resign

The determination of a person’s suitability in office of judicial administrator rests in the sound discretion of
the court. If the court gravely abuses its discretion amounting to lack or excess of jurisdiction then a
petition for certiorari under Rule 65 lies. Now, a judicial administrator who holds an interest adverse to the
estate or by his conduct shows his unfitness to discharge the trust, then he should be removed from the
administration of the estate.

Section 3. Acts before revocation, resignation, and removal are valid

Section 4. Assuming that there is a new executor or administrator, what are his powers? Powers to collect
and settle the estate not to administer that the former administrator have. To prosecute and defend
action. Then have the execution on judgments recovered in the name of such former executor or
administrator.

Rule 83. Inventory appraisal.

What shall be inventoried and appraised? Or in what period shall inventory and appraisal be returned?
Within 3 months after his appointment, every executor or administrator shall return to the court of true
inventory and appraisal of all the real and personal estate of the deceased which has come into his
possession or knowledge, because if it is not yet in his possession but somebody informs him that a third
person is holding the property of the deceased, he is tasked to recover.

There are certain articles not to be inventoried. Obvious noh! Wearing apparel, marriage bed and bedding,
provisions and other articles as well necessarily be consumed in the subsistence of the family of the
deceased.

Section 3. There shall be allowance not only to widow and family. If there is conflict between substantive
law and procedural law, you follow substantive law from the common mass of property; support shall be
given to the surviving spouse and children during the liquidation of the inventoried property. The law does
not say minor children, so even those of age may be supported from the common mass of property.
Rule 84. General powers and duties of executors and administrators. You just read the sections those are
the powers and duties of executors and administrators!
- To have access to and may examine, take copies and make invoices of partnership books and
property if the deceased was a partner during his lifetime relating to the business. Surviving
partners shall exhibit to him books, papers or properties in their hands or control. Partner may be
punished for contempt if he fails to do so.
- Under Sec. 2 he is tasked to keep buildings in repair
- Sec 3 to retain the whole estate to pay debts and to administer estate not willed. It says, he shall
have the right to the possession and management of the real and personal property of the
deceased, but please take note of this phrase, “so long as it is necessary for the payment of the
debts and expenses of administration. The right therefore of the executor or administrator to the
possession and management of the properties is not absolute, it can only be exercised so long as it
necessary for the payment of debt and expenses of administration.

Rule 85. Accountability, Compensation

Executor or administrator chargeable in his account with the whole of the estate of the deceased which has
come to his possession at the value of the appraisement contained in the inventory. Know, the
administrator shall not profit with the increase or loss by the decrease or destruction of the property
without his fault of any part of the estate.

Sec 3. No executor or administrator shall be accountable for debts which has remained uncollected without
his fault.

He is accountable for income from realty used by him. So, if he uses or occupies part of the real estate
then he shall pay for it. If the parties cannot agree on the sum to be allowed then the court may ascertain
the amount whose determination shall be final.

Sec 5. He is accountable if he neglects or delays to raise or pay money and damaged is sustained, the
damage will be charged on his account and he shall be liable thereon on his bonds.

Sec 6. When allowed for money paid as cost or cost paid against him shall be allowed in his administration
account.

Sec 7. What expenses or fees are allowed for executor or administrator? He shall be allowed NECESSARY
expenses in the care, management, settlement of the estate and for his services. If we follow the rules no
one will allow because the compensation is only P4 per day. But in special cases, where the estate is large
and has required a high degree of capacity and difficulty on the part of the executor or administrator then
a higher sum may be given. When the executor or administrator is a lawyer, he shall not charge against
the estate any professional fees for legal services rendered by him. Reason? Conflict of interest.

When the deceased by will makes provision for the compensation of the executor then such provision shall
be in full satisfaction for his services. Generally, what are administration expenses allowed? Necessary
expenses in the care, management and settlement of the estate. He is entitled to possess and manage the
property of the deceased as long as it is necessary for the payment of the debts and expenses of
administration. He is accountable for the whole decedent’s estate which has come to his possession.
Administration expenses should be those which are necessary for the administration of the estate for
protecting it against destruction or deterioration and possibly for the production of fruits.

Now, where the administrator is the counsel for the heirs, it will be the heirs who will pay him. Attorney’s
fees of a lawyer employed by the executor to secure approval of the will, if the lawyer is successful, may
properly be charged against the estate.

What is the procedure to collect attorney’s fees? Ask the executor/administrator to pay him, if the latter
refuses or fails to pay him, the lawyer has 2 remedies. He may either file an independent civil action
against the executor/administrator and should judgment been rendered and there is payment, the executor
or administrator may include the amount paid in his account with the probate court. The other remedy is
to file a petition with the probate court praying that the court after due notice, allow his claim and direct
the executor/administrator to pay his claim as expenses of administration.

Suppose the executor/administrator dies before the attorney’s fees could be paid, what is the remedy? He
may file a claim against the estate of the deceased, executor/administrator or a petition for the allowance
of his claim with the probate court. The allowance of counsel fees in estate proceedings rests largely in the
sound discretion of the court.

The circumstances that the probate court has lost jurisdiction to adjudicate the matter of fees as a result of
the final closure of the estate proceeding does not prevent the lawyer from being paid. So the lawyer may
pursue his claim through an independent civil action against the executor/administrator in his personal
capacity and against the distributees of the assets of the estate.

Sec. 8. When shall executor/administrator render his account? Within 1 year from receipt of letters
testamentary or administration. Exception: when the court otherwise directs because of extensions.
Extension is granted when he shall render further accounts as the court may require until the estate is fully
settled.

The executor/administrator may be examined on oath with respect to his account. That is, if there is
objection to the account to be presented in court. If there is no question as to the allowance of the
account and its correctness is satisfactorily established by competent court, then no examination on oath
shall be conducted.

Under section 10, the account of the executor/administrator shall be settled on notice. Who shall be
notified? Persons interested in the estate. The time and place of the examination and allowance shall be
fixed by the court. The notice may be given personally to persons interested or through advertisement on
a newspaper.

Section 11. Surety on bond may be party to accounting in a due process to the bonding company.

RULE 86. Claims against Estate.

Section 1. The court shall issue notice to creditors requiring persons having money claims against the
decedent to file them in the office of the clerk of court.

Section 2. Time within which claim shall be filed. In the notice, the court shall state the time to file the
claim against the estate. It shall not be more than 12 nor less than 6 months, after the date of the first
publication of the notice but at any time before an order of distribution is entered. On application of the
creditor who has failed to file within the time previously limited, the court may for cause shown and on
such terms as are equitable, allow such claim to be filed within a time not exceeding within 1 month.

Section 3. There shall be publication of notice to creditors, three of which successively in a newspaper of
general circulation. In addition to publication, posting of notices in four public places in the province, two
public places in the municipalities,then within 10 days after notice has been published and posted, copy of
printed notice shall filed

Section 5. Claims which must be filed under the notice. Please take note of section 5, this is important!
Now, which claims must be filed under the notice and what is the effect if they are not filed?
1. All claims for money against the decedent, either arising from contract, express or implied, due, not
due, or contingent.
2. All claims for funeral expenses and expenses for the last sickness of the decedent
3. Judgment for money against the decedent
They must all be filed within the period limited in the notice. What is the effect if they are not filed within
the period in the notice? They are barred forever. Exception: they may be set forth as counterclaim in any
action that the executor may bring against the claimant, so mag-una2x ganing kiha executor or
administrator; the claimant may file a counterclaim or set-off if he has a claim against the estate. The
debtor may set forth by answer the claim he has against the decedent, instead of presenting it
independently to the court, and mutual claims may be set off against each other. Claims not yet due or
contingent may be approved at their present value. What is claim? Claim means right to payment; it refers
to right or demands of a pecuniary nature which could have been enforced against the deceased during his
lifetime and could have been reduced to simple money judgments. Claims referred to in section 5, are
those arising prior to the death of the decedent, except for funeral expenses, they do not include claims
arising after the death of the decedent.

Contingent claim- it is one, which by its nature, is necessarily dependent upon uncertain event for its
existence and validity. One of which, may or may not develop into a sufficient enforceable event, to be
contingent, the happening must be wholly uncertain until the event giving rise to obligation occurs.
Deficiency judgment is a contingent claim.

Now please take note of your civil procedure, section 20, rule 3. Action for recovery of money arising from
contract, express or implied, then defendant dies while the action is in court. Shall the action be
dismissed? No the action shall be allowed to continue until entry of final judgment. If there is favorable
judgment obtained by the plaintiff, then it shall be enforced in the manner specifically provided in this rules
for prosecuting claim against the estate of a deceased person. What does it mean? If there is a judgment,
you present it to the testate or intestate court; you need not prove the claim because the basis is the
judgment. Other claimants are required to prove their claims, so there is therefore an advantage if you
have a court decision. Purely personal actions are extinguished by the death of a party like for support.

Section 20. Refers to an action for recovery of money, which survives the death of the defendant. Actions
which survives, involves property or property rights. Section 20 did not distinguish which “court” the action
is pending, then said court may refer to the MTC, RTC OR CA. Then how about actions other than for
recovery of money? Meaning real actions, one for the recovery of personal property or to enforce a lien
thereon. How about action to recover damages for an injury to persons or property, real or personal? Do
the actions also survive? Answer is yes, they also survive the death of the decedent and may therefore be
prosecuted like an action for the recovery of money.

Now, what is the task of the lawyer if his client dies? Within 30 days inform the court of the death of his
client. Then, give the names and addresses of the heirs. The court gives an order of substitution. Then,
the last which is the more important, the court shall give an order of the appearance of the
substitutes/heirs. If the defendant dies before any action for the sum of money is filed against him, then
the plaintiff may prosecute his claim before the probate court. With respect to injury to persons or torts or
quasi-delict, he may institute necessary action against the executor or administrator of the deceased

Section 6. Solidary obligations of the decedent. If during his lifetime, the decedent bound himself to be
solidarily liable with another, then the claim shall be filed with the decedent as if he were the only debtor.
Of course, without prejudice to the right of the estate to recover from the other debtors. In a joint
obligation, the claims shall be confined to the portion belonging to the deceased.

Section 7. Mortgage due for the estate. What are options of the creditors who has a claim against the
estate secured by mortgage?
1. He may abandon the security and prosecute his claim and share in the general distribution in the
assets of the estate.
2. He may foreclose his mortgage and realize upon his security, making the executor/administrator
party defendant and if there is any deficiency, he may claim deficiency judgment in the manner
provided in section 6.
3. He may rely upon his mortgage and other security alone, and foreclose his mortgage any time
within the period of the statute of limitations in that case he shall not be admitted as creditor but
nothing contained herein shall prohibit the executor or administrator from redeeming the property
mortgaged or pledged for the interest of the estate

These alternatives include extrajudicial foreclosure sale.

Section 8. Claims of executor against an estate. So what shall the court do, since the executor is the
claimant? The court shall appoint a special administrator because there is conflict of interest.

How to file the claim? Deliver the claim with the necessary vouchers to the clerk of court, serve copy to the
executor/administrator if anchored on bond, bill, note, then the original need not be filed but on the
demand of the executor/administrator or by court order, the original shall be exhibited unless of course if
the original is lost or destroyed. In which case, an affidavit/s shall be filed to court. When the claim is
due, it must be supported by affidavits stating the amount justly due and that no payments have been
made thereon and that there are no offsets made to the claim. If the claim is not due or contingent, it shall
also be supported with affidavits stating the particulars. When the affidavit is made by other than the
claimant, then the reason shall be stated why it was not made by the claimant.

Section 10. Answer of executor or administrator. Within what time? Within 15 days after service of the
copy of the claim. Answer shall either admit or deny the claim specifically setting forth the substance
which shall support the admission or denial of the claim. So, “denied for the truth of the matter is…”
executor or administrator shall allege in offset any claim which the decedent before death has for the
claimant. Now, how shall admitted claims be disposed off? First submit the claims to the clerk of court
who may approve the same without hearing, but the court in its discretion before approving the claim that
the heirs, legatees, devisees be notified and heared. If upon hearing, any of the latter opposes the claim,
the court may give him 15 days within which to file an answer to the claim.

Section 12. Contested claims shall be tried.

Section 13. Judgment of the court approving or disapproving the claim shall be appealable as in ordinary
cases.

Section 14. Cause then examination

¼ PIECE OF PAPER! Nag-exam!

“kimoy”
Rule 87. Action by and Against. What are the actions which may and may not be brought
against the executor and administrator?

- No action upon a claim for the recovery of money or interest thereon shall be commenced against
the executor or administrator. So, ipresent na as a claim sa estate.

o Actions to recover real or personal property or interest therein from the estate to enforce a
lien thereon. Actions to recover damages for an injury to persons or property may be
commenced against the executor or administrator.

It is the task of the executor or administrator to bring and defend actions which survive. Meaning for the
recovery or protection of the property or rights of the deceased.

 Action to recover real or personal property, may be prosecuted by the interested person against the
executor or administrator, independently of the testate or intestate proceeding.

o A probate court has no jurisdiction over money claim secured by a lien, like mortgage.

 The only actions that may be instituted against the executor or administrator are those to recover
real or personal property from the estate or to enforce a lien thereon, or to recover damages for an
injury to person or property, they include damages for breach of contract.

o Only when there is no special proceeding for the settlement of the estate of the deceased
may the legal heirs bring an action out of the right belonging to their ancestor.

 Prior settlement of the estate is not essential before the heirs can commence an action originally
pertaining to the decease where there is no showing that an administrator has been appointed to
settle the estate of the deceased.
 o But after appointment an executor or administrator, an heir has no right to file an action to
recover title or possession of land belonging to the estate of the decedent.

Exception: if the executor or administrator, refuses to file such action and also when there is an order of
the court, assigning the land to an heir.

Section 3. Heir may not sue until a share is assigned, because he is not yet a party in interest.

 No action to recover the tile or possession of land or for damages shall be maintained against him
by an heir or devisee until there is an order of the court assigning such lands to such heirs or
devisee. Executor or administrator may compromise with debtor.

Section 5. If there is any mortgage due the estate, then said mortgage may be foreclosed by the
executor/administrator.

What is the procedure when property of the estate is concealed, embezzled, or fraudulently conveyed?

4. The administrator/executor or person interested will complain to the court having jurisdiction, that a
person is suspected of having concealed, embezzled, or conveyed away any of the money, goods or
chattels of the deceased, or that such person has in his possession or knowledge of any deemed
conveyance etc., containing evidence opt or tends to disclose the right, title of interest or claim of
the deceased to real and personal estate or the last will and testament of the deceased.

5. So, the court may cite such suspected person to appear before it. So he shall be interrogated under
oath on the matter of such complaint.

Suppose the person cited, refuses to appear or refuses to be interrogated? What is the remedy?

4. The court may punish him for contempt and may commit him to prison until he submits
to the order of the court.

Section 7. If there is a person entrusted with the estate, then he may be compelled to render an account.
What is the procedure?

The court may cite such person entrusted executor/administrator with any part of the estate to appear
before the court.

5. The court may require such person to render a full account of the money, goods and
chattels etc. or other papers belonging to the estate, in trust for his possession in behalf
of the executor/administrator.

1. And what if he refuses to appear? He may be punished for contempt.

What is the procedure if there is embezzlement before letters were issued?

6. Such person shall be liable to the executor or administrator of the estate for double the
value of the property embezzled or alienated.

Now , Section 9 is fraudulent conveyance of the property by the deceased himself. So, under this section it
is the task of the executor/administrator to bring action to recover.

Under what conditions?

7. When there is deficiency of the assets and it is for the payments of debts and expenses
of administration.

The deceased during his lifetime, conveyed a real or personal property or a right or interest therein and
there was intent to defraud his creditors committed by the deceased, if not, to avoid any right, debt or
duty or if he has so conveyed such property that by law the conveyance would be void as against his
creditors and the subject of the attempted conveyance would be liable to attachment.

What shall the executor/administrator do?

 8. Commence and prosecute for an action for the recovery for such property, right,
interest, debt or credit, for the benefit of the creditors.

Remember the executor/administrator is the representative of the creditors also not only of the heirs.

9. But he shall not be bound to commence action unless upon application of the creditors
nor unless creditors making the application pay such part of the cost and expenses and
give security.

Section 10. When may the creditor bring the action? During his lifetime, ang deceased fraudulently
conveyed his property, the executor/administrator is supposed to protect the interest of heirs and creditors
did not bring action to recover. So, who may bring action?

 The rule says, any creditor of the estate may commence and prosecute to final judgment in the
name of the prosecutor or administrator, an action for the recovery of the subject of the
conveyance or attempted conveyance for the benefit of the creditors.

o Actions shall not however commence, until creditors shall have filed in court a bond
executed to the executor/administrator.

What is the purpose? To indemnify the executor/administrator against costs and expenses incurred by such
action.

Where the conveyance or attempted conveyance has been made by the deceased in his lifetime, in favor of
the executor or administrator:

o the action shall be made in behalf of the name of all the creditors.

RULE 88. Payment of the debts of the estate.

Remember, before distribution of the residue, there must be payment of debts.

Under Section 1, debts shall be paid in full, if the estate is sufficient or where it appears that there are
sufficient assets to pay debts.

The general rule is that the probate court cannot issue a writ of execution because its orders usually refer
to the adjudication of claims against the estate which the executor/administrator may satisfy without the
necessity of resorting to writ of execution.

The probate court does not render judgments enforceable by execution.

 Exceptions to that rule:

 to satisfy the distributive shares of devisees, legatees, heirs in possession of the decedent’s
assets

 to enforce payment of expenses of partition. XYZ, gipartition nila, ni-hire sila ug geodetic
engineer, ang2x ug tablahon, so they must contribute. If somebody fails to contribute then the
order is satisfied or enforce via execution.

 To satisfy the cost when the person is cited for an examination in probate proceeding.

Under Sec 2, part of the estate to pay the debt when there is a specific provision in the will by the testator.

 If the testator designates the estate for appropriation, for the payment of his debts, expenses of
administration, or family expenses, then it shall be paid according to that provision in the will.

Which shall be charged for debts first?

 Personal property (2) then real property.

o The personal property of the deceased not disposed off by will shall be first chargeable or its
sale would redound to the detriment of the participants of the estate, the whole real estate
 not disposed of by will, or so much thereof if necessary, may be sold, mortgage, or
encumbered.

Section 4. Portion of the estate may be retained to meet contingent claims. So court may order the
executor/administrator to retain in his hands sufficient estate to pay contingent claims.

If contingent claims become absolute, presented in court, within 2 years, from the time limited for other
creditors to present their claims, then it may be allowed by court if not disputed.

 If disputed, it may be proved and allowed/disallowed by the court as the facts may warrant. If the
contingent claim is allowed, the creditor shall receive payment same as to other creditors etc.

If the claim is not presented after having become absolute, within said 2 years:

 the assets retained in the hands of the executor/administrator not exhausted in the payment of the
claims shall be distributed by order of the court to persons entitled to the same.

 Assets so distributed may still be applied in payment to claims when established.

Section 6. It is the duty of the court to fix contributed shares where devisees, legatees or heirs have been
in possession.

The rule says, where devisees, legatees or heirs have entered into possession of portion of the estate
before the debts or claims have been settled and paid, they shall be liable to contribute for the payment of
such debts/expenses etc.

- By order or by hearing court shall settle the amount of several liabilities and order how much and in
what manner, each person shall contribute. To enforce contribution, a writ of execution may be
issued.

Now, order of payment if estate is insolvent.

- The assets which can be appropriated for the payment of debt is not sufficient, then follow articles:
1059, 2239, 2251, these are concurrence and preference of credits. Now, dividends should be paid
in proportion to claims.

o So if there are no assets sufficient to pay credits of any one class of creditor, after paying
credits entitled to preference over it, each creditor within such class shall be paid a dividend
in proportion to its claim.

How shall the estate of the insolvent non-resident be disposed off?

- It shall be disposed off that its creditors here and out of the Philippines will receive a share in
proportion to the respective credit.

The court here, shall receive a certified list of claims, when perfected in the foreign country and add the
same to the list of claims proved against the deceased person in the Philippines. So that just distribution of
the whole estate may be made equally among the creditors according to the respective claims.

Section 11. Order for payment of debts. Before the expiration of the time limited for the payment of the
debts, the court shall order the payment thereof.

If there is an appeal?

- The court may suspend the order for the payment of the debts or may order distribution among
creditors whose claims are definitely allowed.

Section 13. If the whole of the debts are not so paid on the first distribution, and if the whole assets are
not distributed, or other assets, afterwards comes to the hands of the executor/administrator:

- then the court may from time to time make orders for the distribution of the assets.
Creditors shall be paid in accordance with the terms of order.

- When an order is made for the distribution of assets then the executor/administrator as soon as the
time of payment arrives, pay the creditors the amount of their claims or the dividends thereon, in
accordance with the terms of such order.

Section 15. Time for paying debts and legacies. Extension.

Court shall allow executor/administrator a time for disposing off the estate and paying the debts and
legacies which shall not exceed 1 year,

- but the court may grant extension as the circumstances of the estate requires, not exceeding 6
months for a single extension.

o But extension shall not exceed 2 years.

Section 16. Successor of dead executor or administrator may have the time extended on notice within
certain period.

- So the successor may be granted extension not exceeding 6 months beyond the time which the
court may have allowed.

Rule 89: Sales, Mortgages and other Encumbrances

Section 1.

 The court may order the whole or part of the personal properties to be sold.
 Under what circumstances? If it appears necessary for the purpose of the paying debts,
expenses of adminitration or legacies; or for the preservation of the property.

Section 2.

 When may the court authorize the sale, mortgage or encumbrance of realty?
1. When the personal estate is not sufficient to pay the debts , expenses of administration
and legacies.
2. Where the sale of the personalty may injure the business or other interests of those
interested and where a testator has not otherwise made a sufficient provision for the
payment of debts, expenses etc.
 So the court may issue an order authorizing the executor or administrator to sell, mortgage or
otherwise encumber so much as may necessary of the real estate in lieu of personal estate
again for the purpose of the payment of debts, expenses of administration and legacies.
 The court shall issue the order if it appears beneficial to the persons interested or if your part
cannot be sold, mortgage or otherwise encumber without injury to those interested in the
remainder the authority maybe for the sale of the whole estate.
 Notice is indispensable. Without the requisite notices the authority to sell , the sale itself and
the order of approving it would be null and void in so far as those not given proper notices.

Section 3.

 Any person interested in the estate may prevent the sale, encumbrance etc.
 How? By posting a bond fixed by the court.
  What is the purpose of the bond? To pay the debts, expenses of the administration and
legacies.
 Bond should be for the security of the creditors.

Section 4.

 When may the court authorize sale of estate as beneficial to interested persons?
 A: When it appears that the sale will be beneficial to the heirs, devisees, legatees and other
interested persons, the court may, upon application, may authorize the executor or
administrator to sell the whole or a part of the estate..

Section 5.

 When may the court authorize the sale, mortgage or other encumbrance of estate to pay debts
and legacies in other countries?
 A: If it appears from records and proceedings of the probate court in another country that the
estate of the deceased in such other country is not sufficient to pay the debts, expenses of
administration and legacies there, the court here in the Philippines may authorize the executor
or administrator to sell personal estate or sell, mortgage or encumber real estate for the
payment of debts or legacies in other country.
 The court may authorize the sale, mortgage or other encumbrance of realty acquired on
execution or foreclosure.

Section 7.

 Regulation for granting authority to sell, mortgage or encumber.

 What are the regulations?
1. First, there must be a written petition alleging the debts due from the deceased,
expenses of the administration and legacies.
2. Then court shall fix the time and place for hearing the petition with notices.
3. Court may require additional bond.
4. Court may authorize the executor or administrator to sell, mortgage or otherwise
encumber in proper cases such that of the estate as may be necessary.
5. Then modes of giving notice of the time and place of sales should be governed by rule
on execution (Rule 39).
6. Then the last step is recording in the registry of deeds of the province in which the real
estate is sold mortgaged or encumbered.

Section 8.

 The court may authorize the conveyance of real property which the deceased contracted to
convey during his lifetime.
 The rule says when the deceased was in his lifetime under a contract to deed real property or
an interest therein, the court upon application may authorize the executor or administrator to
convey such property according to such contract or with such modification agreed upon.
 If the contract is to convey real property to the executor or administrator then the clerk of
court shall execute the deed.
 The deed executed by the executor or administrator shall be effectual to convey the property as
if executed by the deceased during his lifetime.
 No conveyance shall be authorized until notice of the application to all parties interested and
futher notice by publication. Nor if the assets in the hands of the executor or administrator will
thereby be reduced so as to prevent the creditor from receiving his full debt or diminish his
dividend. V
i library

Sec. 9. 
  When court may authorize conveyance of lands which the deceased held in trust during his lifetime?
 A:  If the deceased in his lifetime held in trust real property for another person, the court may, after
notice authorize the executor or administrator to deed such property to the person, or his executor
or administrator, for whose use and benefit it was so held.

RULE 90: DISTRIBUTION AND PARTITION OF THE ESTATE

  
Sec. 1. 

 When shall the court issue order for distribution of the residue?
 A: After debts, funeral charges, and expenses of administration, allowance to the widow, and
inheritance taxes have been paid.
 Support on the application and after hearing upon notice shall assign the residue of the estate to
the person/s entitled to the same, naming them and the portions, or parts, to which each is
entitled.
 If there is a controversy relative to the question of who are the lawful heirs or there is a dispute as
to the distributive shares, the controversy shall be heard and decided as in ordinary cases.
 No distribution unless the distributees, or any of them, give a bond conditioned for the payment of
said obligations within such time as the court directs.
 Declaration of heirship must be made in an administration proceeding and not in an independent
civil action.
 While the estate proceeding is pending or either the estate settlement has not been finally closed
and terminated, an independent action for declaration of heirship is improper.
 His remedy being with the probate court.
 If its motion is denied, remedy is to appeal and not to file a separate independent action for the
purpose.

Case: De Jesus vs. Estate of decedent Dizon

 The filiation of illegitimate children, like legitimate children, is established by:

(1) record of birth appearing in a civil register or final judgment

(2) an admission of legitimate filiation in a public document or a private handwritten and signed by
the parent concerned.

 In the absence thereof, affiliation shall be proven by the following:

(1) Open and continuous possession of the status of a legitimate child;

(2) Any other means allowed by the Rules of Court and special laws.

 The children entitiled to the inheritance are the natural children, or either legitimate or illegitimate.

Sec. 2. 

 Questions as to advancement may be made, or heard by the court and the final order of the court
thereon shall be binding on the person raising the questions and on the heir.

Sec. 3.
  If there are sufficient effects retained by the executor or administrator, this may lawfully be applied
for the expenses of partition, otherwise the parties shall pay the expenses.

Sec. 4. 

 Recording the order of partition in the registry of deeds of the province where the property is
situated. 
 An heir during the pendency proceedings has the right to sell its undivided share without the
approval of the probate court. Approval is required only if the specific property of the estate is sold.
 In settlement of estate proceedings the distribution of estate properties can only be made:
(1) After all the debts, funeral expenses, expenses of administration and allowance to the widow
and estate tax have been paid.

(2) before payment of the said obligations, only if the distributes or any of them gives a bond.

 When may the court lose jurisdiction of an estate under administration?

 A: After the payment of all the debts and remaining estate delivered to the heirs entitled to receive
the same. As long as the order has not been complied with, the probate court could not be deemed
closed or terminated.
 If an heir has not received share, then his proper remedy is to file a motion for reopening.
 Where the properties involved registered lands, and the shares have been distributed to that who in
turn absolve them to 3rd persons then the heir excluded may file a separate action to set aside
partition and to recover his share or he may file action for reinventication.
 A reopening is no longer proper if there is 3 rd party involved.
 
RULE 91: ESCHEATS

  
Sec. 1. 

 When and by whom petition filed. - Here a person dies intestate, seized of real or personal property
leaving no heir or person by law entitled to the same. So what should the government do?
 The Solicitor General or his representative may file a petition in the RTC where the deceased last
resided or in which he had estate, if he resided out of the Philippines, setting forth the facts, and
praying that the estate of the deceased be declared escheated.
 It is reversion of property to the state in consequence of a want of any individual competent to
inherit.
 It indicates the preferential right of the estate left vacant without there being anyone in existence
to make a claim thereto.
 The reversion of the land to the state as a consequence of either the violation of the provisions of
the Public Land Act or of the Constitution prohibiting the sale of lands to aliens.
 Escheat or reversion is available however you should not forget that in reversion the real party in
interest is the government , the Republic of the Philippines. So no private individual intervenes.
 Like in one case, there was a reversion proceedings initiated by the Solicitor General. An occupant
of the property who did not claim ownership intervenes. SC: You cannot intervene; the real party-
in-interest is the Republic.
 Escheat is nothing more or less than the reversion of the property to the state which takes place
when the title fails.
 It is an incident or tribute of sovereignty and rests on the principle of ultimate ownership by the
state of all property within its jurisdiction.

Section 2.

 After the petition is filed, when shall the court issue an order for hearing?
 A: If the petition is sufficient in form and substance, the court shall fix a time and place for the
hearing of the petition and the purpose thereof, which date shall be not more than six (6) months
 after the entry of the order, and shall direct that a copy of the order be published at least once a
week for six (6) successive weeks.
 This is the ONLY special proceeding where publication is SIX successive weeks.
Sec. 3. 

- Hearing and judgment.

- Upon the satisfactory proof that such order has been published and that the person died intestate,
seized of real or personal property in the Philippines, leaving no heir or person entitled thereto,
then the court shall render judgment that the estate of the deceased in the Philippines, after the
payment of just debts and charges, shall escheat; assign the personal estate to the municipality or
city where he last resided in the Philippines, and the real estate to the municipalities or cities, in
which the same is situated.
- If the deceased never resided in the Philippines, the whole estate may be assigned to the
respective municipalities or cities where the same is located.
- Purpose? Such estate shall be for the benefit of public schools, and public charitable institutions
and centers. Permanent trust may be established.

Sec. 4. 

 When and by whom claim to estate filed?

 A: If a devisee, legatee, heir, widow, widower or other person entitled to such estate appears and
files a claim thereto with the court within five (5) years from the date of such judgment, such
person shall have possession of and title to the same, or if sold, the municipality or city shall be
accountable to him for the proceeds, after deducting reasonable charges for the care of the estate;
but a claim not made within said time shall be forever barred.

Sec. 5. 

 Other actions for escheat. - actions for reversion or escheat of properties alienated in violation of
the Constitution or of any statute.
 2 remedies to escheat property to State:
(1) Action for reversion as a result of the violation of the provisions of the Public Land Act
(2) Escheat proceedings instituted as a consequence of a violation of the Constitution prohibiting the
transfer of lands to aliens..
Unclaimed bank balances, whose depositors or creditors are known to be dead or have not been heard
of or who have not made further deposits or withdrawals during the preceding ten years or more: So
what should government do? Solicitor General shall commence action/s in the name of the people in
the RTC, joining as parties the bamk and the creditors and depositors. Venue is in the province or city
where the principal or main office of the bank is located.

 Unclaimed bank balances, whose depositors or creditors are known to be dead or have not been
heard of or who have not made further deposits or withdrawals during the preceding ten years or
more: So what should government do? Solicitor General shall commence action/s in the name of
the people in the RTC, joining as parties the bamk and the creditors and depositors. Venue is in
the province or city where the principal or main office of the bank is located.

GUARDIANSHIP OF MINORS

 We should separate two kinds of guardianship:

(1) Guardianship of the person or property of minors
(2) Guardianship of incompetent persons who are not minors
 This is exclusive rule on guardianship of minors only.
 How shall it be commenced?
  Petition for the guardianship of the person or property or both of minors shall be filed. Father or
Mother shall jointly exercise legal guardianship over the person and property of their
unemancipated common child without the necessity of a court appointment.
 Guardianship is a trust relation in which the person called the guardian acts for another called the
ward whom the law regards as incapable of managing his own affairs.
 Intention/Purpose? To preserve ward’s property and to give assistance to the ward. Guardian/s
stand in loco parentis.

Four types of guardians:

(1) Legal guardians/ Guardian by operation of law

(2) Judicial guardians/
(3) Guardians ad litem who is appointed to prosecute or defend an action for or against a minor or
incompetent
(4) De facto guardian

 DO not confuse guardian ad litem and guardian ad litem under the rule on examination of a child
witness.
 Guardian Ad litme is appointed to assist the minor who is accused of a crime or is a complainant or
is a witness.
 So the function of the guardian under the rule on examination of a child witness is to look after the
welfare of the child.
 De facto guardian – one to whom a newly born baby is entrusted by the mother who did not want
to be identified, who had actual physical custody of the infant and who, out of compassion and
motherly instinct, extend the mantle of protection over the hapless and helpless infant.
 De facto guardian exercises patria potestas over the abandoned child.
 Please take note of Sectio 225 of Family Code. Regardless of the value of the unemancipated
common child’s property, the father or mother or in his absence or incapacity, the mother ipso facto
becomes the legal guardian of the child’s property.
 The power or authority of the parents as legal guardians extends only to the power of possession
and management.
 Power to sell, mortgage or encumber must be with approval/authority of the court.

Sec. 2.

 Who may petition for appointment of guardian?

 A: Any relative or other person on behalf of a minor, or the minor himself if fourteen years of age
or over, may petition the Family Court for the appointment of a general guardian over the person or
property, or both, of such minor.
 DSWD Secretary and DOH Secretary may also file guardianship of insane minor.

Sec. 3.

 Where to file petition? Family Court of the province or city where the minor actually resides.
 If he resides in a foreign country, the petition shall be flied with the Family Court of the province or
city where his property or any part thereof is situated.

Sec. 4.

 Grounds of petition. - The grounds for the appointment of a guardian over the person or property,
or both, of a minor are the following:
(a) death, continued absence, or incapacity of his parents;
 (b) suspension, deprivation or termination of parental authority;chan robles virtual law library

(c) remarriage of his surviving parent, if the latter Is found unsuitable to exercise parental
authority; or

(d) when the best interests of the minor so require.

Sec. 5.

 Qualifications of guardians. – In appointing a guardian, the court shall consider the guardian’s:
(a) moral character;chan robles virtual law library

(b) physical, mental and psychological condition;

(c) financial status;

(d) relationship of trust with the minor;chan robles virtual law library

(e) availability to exercise the powers and duties of a guardian for the full period of the
guardianship;

(f) lack of conflict of interest with the minor; and

(g) ability to manage the property of the minor.

Sec. 6.

 Who may be appointed guardian of the person or property, or both, of a minor/ward?

 Following order of preference:
(a) the surviving grandparent and In case several grandparents survive, the court shall select any of
them taking Into account all relevant considerations;

(b) the oldest brother or sister of the minor over twenty-one years of age, unless unfit or
disqualified;

(c) the actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; and

(d) any other person, who in the sound discretion of the court, would serve the best interests of the
minor.

 Non-residents may not be appointed guardians because there is jurisdictional problem besides non-
resident aliens could not protect the ward.

Sec. 7.

 Contents of petition. – A petition for the appointment of a general guardian must allege the
following:
(a) The jurisdictional facts;

(b)  The name, age and residence of the prospective ward;chan robles virtual law library

(c)  The ground rendering the appointment necessary or convenient;chan robles virtual law library

(d) The death of the parents of the minor or the termination, deprivation or suspension of their
parental authority;

(e) The remarriage of the minor’s surviving parent;

(f) The names, ages, and residences of relatives within the 4th civil degree of the minor, and of
 persons having him in their care and custody;

(g) The probable value, character and location of the property of the minor; and

(h) The name, age and residence of the person for whom letters of guardianship are prayed.

 The petition shall be verified and accompanied by a certification against forum shopping.
 However, no defect in the petition or verification shall render void the issuance of letters of
guardianship.
 During the initial hearing for the petition of guardianship the Judge will ask counsel for petitioner,
are you ready to establish compliance with the jurisdictional requirements.
 SO what do you mean by jurisdictional facts? There are facts which will show on the face of the
petition that the court has jurisdiction over the proceedings so Residence and place where the
Property is located.
 Residence of minors: If he resides in another country, then the province or city where his property
or any part thereof is situated. Of course the counsel for petitioner shall prove publication and
notices.

Sec. 8.

 Time and notice of hearing. The court shall fix a time and place for its hearing, and shall cause
reasonable notice which is jurisdictional.
 Court cannot proceed without notice to the proper persons or interested party.

Sec. 9.

 Case study report. The court shall order a social worker to conduct a case study of the minor and
recommend to the court for its guidance before the scheduled hearing.
 Social worker shall report and submit his recommendation.
 Social worker may intervene if he finds the petition to be denied.
 Who may oppose the petition for guardianship? I’m sorry. This is adoption already. Adoption. Any
interested person.
 How? File a written opposition.
 What are the grounds?
1. Majority of the minor
2. Unsuitability of the person for whom letters of guardianship are prayed.
 Then, if there is an opposition, then there shall be hearing for issuance of letters of guardianship.
 At the hearing, it must be shown that the requirement of notice has been complied with. This is
jurisdictional.
 Prospective ward shall be presented to the Court. Ok. So, Court shall hear evidence of both parties.
 If warranted, the Court shall appoint a suitable guardian of the person or property or both of the
ward.
 Hearing may be closed to the public.
 Records may be considered confidential, meaning they shall not be released without Court
approval.

Sec. 12.

 When and how a guardian of the property for the non-resident minor is appointed?
 Here, minor resides out of the Philippines, but he has property in the Philippines. So, relative or
friend of such minor or any interested party may file a petition in the Family Court.
 Again, requirement of notice and publication or any other means as the Court may deem proper.
 If after hearing, the Court is satisfied that the non-resident is a minor and a guardian is necessary
or convenient, then the Court may appoint a guardian over his property.
 Who shall be served final and executory judgment of order?
(1) Local Civil Registrar.
(2) Register of Deeds.
  A report shall also be submitted to the Court within 15 days from receipt of the Order.

Sec. 14.

 Bonds of Guardian. What are the conditions?

(1) To make and return to the Court, a true and complete inventory of all property of the Ward.
(2) To faithfully execute the duties of his trust. To manage and dispose of his property according
to the Rules of Court.
(3) To render a true and just account of all the property of the ward in his hands.
 Where to file the bond? Family Court, in case of breach of any of the conditions of the bond, the
guardian may be prosecuted in the same proceeding, not separate proceeding because in this
jurisdiction, split jurisdiction is not favored.

Sec. 16.

 Bond of Parents as Guardians of Property of Minor.

 Bond is required if the Market Value of the property or the annual income exceeds P50T.
 Bond, in no case is 10% of the value of property or annual income.
 What is the purpose of the bond? To guarantee the performance of the obligations prescribed for
general guardians.
 Approval of bond via verified petition filed with the Family Court.
 Petition will be docketed as a Summary Special Proceeding.
 Now, jurisdiction. Parents have no power to dispose of property of their minor children worth more
than P50T without having filed the required bond and without having the authorization. There
should be a petition to sell, encumber or mortgage.

Sec. 17.

 Bond is General Duties of Guardian. Care and custody of the person of ward, management of his
property or management only.
 Guardian of property of non-resident minor shall have the management of all his property within
the Phils.
 So, these are the duties:
(1) to pay the just debts of the ward.
(2) to settle all accounts of his ward
(3) to manage the property of the ward frugally and without waste.
(4) to consent to a partition to a real or personal prop owned by the ward.
(5) to submit an inventory of the property of his ward within 3mos. Of his appointment.
(6) to report to the Court, any property of the ward not included in the inventory
(7) Last, to render to the Court, an accounting of the property one year from his appointment.
 Power and Duties of the Court:
(1) Request assistance of one or more commissioners.
(2) Authorize reimbursement to the guardian or reasonable expenses incurred in the execution of
the trust.
(3) Require any person suspected of having concealed or dispose of property of the ward to appear
for examination concerning any thereof and issue orders as would secure the property against
embezzlement, concealment, and conveyance.

Sec. 19.

 Petition to sell or encumber. When is this allowed?

(1) When the income of the property under guardianship is insufficient to maintain and educate
the ward.
(2) Second, when it is for his benefit that his personal or real property of part thereof is sold,
mortgaged or encumbered and proceeds invested in safe and productive security.
  So, what shall the guardian do? File a verified petition alleging said facts and praying that an Order
issue authorizing the sale or encumbrance of that property.

Sec. 20.

 If there is a petition to sell or encumber a property, then the Court shall issue an order for the next
of kin and all interested persons to appear and show cause why the petition to sell or encumber
should not be granted.
 Sale will be allowed if necessary or would-be beneficial to the ward. So, any of those grounds may
be alleged.
 So, who is the next of kin referred to here? Those whose relationship is such that they are entitled
to share as distributees.
 The next step is hearing on return. So the Court shall hear the allegations and evidence of the
petitioner or next of kin or interested persons.
 The next step is issuance of order, either denying or granting the petition for sale.
 Now, if granted, Court shall issue an Order for the sale and encumbrance.
 The proceeds of the sale of which shall be expended for the maintenance or education of the ward.
 Order shall specify the grounds for the sale or encumbrance.
 Sale must be public sale or public auction.
 Original bond shall stand as security for the proper appropriation of the proceeds.
 Authority shall not extend one year.
 Guardian is prohibited to acquire ward’s property.

Sec. 23.

 Court may order investment of proceeds and direct management if it is for the best interest of the
ward.
 Court shall make such orders for the management, investment and disposition of property and
effects.
 Grounds for removal of guardian:
(1) Insanity
(2) incapability of discharging his trust
(3) found unsuitable
(4) has wasted or mismanaged the property of the ward,
(5) failed to render an account or make a return for 30 days.
 There must be reasonable notice if there is any motion to remove. If removed, then, the guardian
shall be required to surrender the property of the ward.
 Court may allow guardian to resign for justifiable causes. A new one shall be appointed if a
guardian is removed or is allowed to resign, but no motion for removal or resignation shall be
granted, unless the guardian has submitted the proper accounting and approval of the Court of the
accounting.
 Ground for termination of guardianship:
(1) ward has come of age
(2) ward has died.
Court motu propio or on motion may terminate guardianship.

Sec. 26.

 Who shall be served final and executory judgment?

(1) Local Civil Registrar, and
(2) Register of Deeds where his property or any part thereof is situated.
 Venue. This is guardianship of incompetent person, RTC of the place where the incompetent resides
or RTC of the province where his property or part thereof is situated.
 Meaning of incompetent: person suffering penalty of civil interdiction sentenced to reclusion
perpetua, hospitalized lepers, prodigals, deaf and dumb, etc.
  Then, venue may be transferred if the ward acquired property in another province.

Rule 93 – Appointment of Guardians of Incompetents

 Who may file? Relative, friend and other persons.

 Petition must be in writing.
 It must be verified.
 Prayer is for appointment of general guardian.
 Contents: Jurisdictional Facts, facts of incompetency and other matters.
 Factors to be considered, financial situation, physical condition, sound judgment, prudence and
trustworthiness, moral character and conduct.
 Next step is for the Court to fix a time and place for hearing.
 Then, reasonable notice. Notice is jurisdictional.

Sec. 4

 Who may oppose? Interested person.

 How? File a written opposition.
 On what ground? Competency of the alleged incompetent or unsuitability of the person for whom
letters of guardianship are prayed.
 Then what comes next? Hearing and order for letters to issue. Then, competent must be present.
 The Court must hear the evidence of the parties. If the person in question is incompetent, it shall
appoint a suitable guardian for his person or estate.
 The order appointing guardian is executory, although the order is interlocutory.
 Now, guardian for non-resident incompetent. Who may file? Relative, friend or any person
interested in the estate of the incompetent.
Sec. 8

 Who may be served or who shall be served judgment of the Court? Civil Registrar

Rule 94 – Bonds of Guardians (pareha ra ni sa Minors –according to Judge)

Rule 95 – Selling and Encumbering of Property of Ward (the same Rule—according to Judge)

Rule 96 – General Powers and Duties of Guardians

Sec. 4.

 The estate must be managed frugally and the proceeds applied to maintenance of ward.. (Taas
kaayo ang provision, ang epigraph ra maoy importante diha, paliko-liko lang…)
 Guardian may be authorized to join in partition proceedings of the hearing.
 Now, what is the procedure when a person suspected or when there is a person suspected of
embezzling or concealing the prop of the ward? Anyone who is suspected of having embezzled,
concealed or conveyed away any manner a property of the ward, the Court may cite the suspected
person to appear for examination.

Sec. 7.

10. Inventories and Accounts of the Ward.

 11. Duty of Guardian to render an inventory within 3 months after his appointment and annually.
12. Rendition may be compelled upon application of an interested person. I
13. nventories and accounts shall be verified, meaning under oath.
14. All the estate of the ward shall be appraised.

Sec. 8.

 When Guardian’s Account presented for settlement? Upon the expiration of a year from the time
of his appointment, and as often as may be required, a guardian must present his account to
the Court for settlement and allowance.
 He shall be allowed reasonable expenses incurred in the execution of his trust.
 He must, of course, be compensated for his services.
 After termination of the proceedings, a petition for an accounting should be filed as a separate
case in the Court of competent jurisdiction. Atty’s fees allowed. Court may determine Atty’s
fees.

Rule 97 --- Termination of Guardianship of Incompetent

 A person declared incompetent or his guardian, relative or friend may petition the Court to have
his present competency judicially determined.
 If he is found no longer incompetent, then his competency shall be adjudged and the
guardianship shall cease.
 Guardian may be removed or allowed to resign.
 An order of the trial court removing a guardian may be executed pending appeal where there
are urgent or compelling reasons therefor.
 Trial court cannot motu propio order closure or termination of guardianship.
 The ward should be notified of such hearing. Skip Sections 3 and 4.
 Then, who shall be served judgment? LCR, Local Civil Registrar.

Rule 98 – Trustees

Sec. 1.

 Trustee - necessary to carry into effect the provision of a will or a written instrument;
 Appointed by RTC.
 You know that trust is legal relationship between one person having equitable ownership in
property and another person owning the legal title to such property.
 Two kinds:
(1) Express trusts, created by a direct and positive acts of the parties by some writing, or deed,
or will or by words evidencing an intention to create trust.
(2) Implied trust, one which without being express is deducible from the nature of the
transaction as a matter of intent.
 Trust is the right to the beneficial enjoyment of property, the legal title to which is vested in
another.
 Express trust is created by the intention of the trustor or of the parties.
 Implied trust comes into being by operation of law..
 Rule 98 applies only to Express Trust.
 Trustor is the person who establishes the trust. Trustee is the person in whom confidence is
reposed, while cestui que trust is the person for whose benefit the trust has been created.

Sec. 2.

 Appointment and Powers.

  When shall trustee be appointed? If testator has omitted in his will to appoint a trustee, and if
such appointment is necessary to carry into effect the provision of the will, then RTC shall
appoint trustee.

Sec. 3.

 Appointment and Powers of New Trustee under Written Instrument.

 When trustee under a written instrument declines, resigns, meaning refuses to accept the trust,
dies, or is removed before the objects of the trust are accomplished and there is no provision in
the instrument for supplying the vacancy, then RTC after due notice to all interested parties,
appoint a new trustee to act alone or jointly with others.

Sec. 4.

 Proceedings where trustee appointed abroad.

 When land in the Philippines is held in trust for persons resident here but the trustee who
derives his authority from without the Philippines, such trustee, on filing petition with the RTC,
will be ordered to apply to the Court for appointment of trustee.
 If he neglects or refuses to comply with such order, then the Court shall declare such trust
vacant and a new trustee shall be appointed.

Sec. 5.

 Trustee must file a bond in the amount fixed by the Court, payable to the govt., sufficient and
available for the protection of any party-in-interest.
 If he neglects to file a bond or declines or resign the trust, Court may until further order exempt
a trustee under a will from giving a bond when the testator has directed or requested such
exemption.

Sec. 6.

 Conditions included in the trustee’s bond:

1. Make and return a true inventory of all the real and personal estate belonging to him as
trustee.
2. Manage and dispose of all such estate according to law and the will of the testator.
3. Render upon oath at least once a year a true account of the property in his hands.
4. Then settle his accounts in Court and pay over and deliver all the estate remaining in his
hands.
 Since a trustee occupies a fiduciary relation, meaning trust and confidence, with the beneficiary
is completely disabled from acquiring for his own benefit the property committed to his custody
or management, regardless of fraud. That is conflict of interest.
 General rule, an action to compel a trustee to convey a property registered in his name in trust
for the benefit of the cestui que trust does not prescribe. There are well-recognized exceptions.

Sec. 7.

- Appraisal. If inventory is required, the estate and effects belonging to the trust shall be
appraised.
- Of course, trustee shall be compensated.
- Court shall fix the compensation.

Sec. 8.
 - Trustee may be removed, he may be allowed to resign, provided, there is notice and hearing.
- Grounds:
(1) Insanity,
(2) incapability of discharging the trust,
(3) then, unsuitability.
 He is allowed to resign.

Sec. 9,

 Proceedings for Sale and Encumbrance of Estate.

 When is it allowed? Sale or encumbrance…. If necessary or expedient.
 So, the Court on petition, after due notice and hearing, order the sale or encumbrance of
property and the re-investment or the application of the proceeds, in such manner as well be
best effect the objects of the trust.
 Beneficiary is not entitled to income or sale of property. Again, conflict of interest.

Adoption. Domestic Adoption.

Sec. 1.

6. Meaning of adoption - Juridical act, proceedings in rem because proceeding in rem, there is
publication, theoretically, binding against the whole world.
7. It is a relationship between two persons, similar to that which results from legitimate paternity and
filiation.
8. How do construe adoption statutes? Strictissimi juris.
9. Relationship is limited to the, solely to the adopter and adopted. And does not extend to the
relatives of the adopting parents or of the adopted child.
10. Neither are the children of the adopted considered as descendants of the adopted.
11. Status of the parent and child. It may give the child a legitimate status.
12. Interest and welfare of the child is the paramount consideration. And our adoption statues,
therefore, every reasonable intendment should be sustained to promote and fulfill this noble and
compassionate objective of the law.
13. Main purpose of adoption: promotion and the welfare of children.
14. What law determines jurisdiction? It is the law in force at the time of commencement of the
action.

Sec.2.

 Best interest of the child shall be the paramount consideration in all matters relating to his CCA:
care, custody, adoption in accordance with Phil. Laws, UN Convention on the Rights of Child, etc.
 One other significant objective. State shall provide alternative protection and assistance through
foster care or adoption for every child who is a foundling, neglected, orphan or abandoned. So,
State shall:
(1) ensure that every child shall remain under the custody of the biological parents.
(2) Safeguard biological parents from making hasty decisions.
(3) Prevent child from unnecessary separation. Conduct information and educational campaigns.
(4) Ensure that government and private sector have the capacity to handle adoption inquiries and
encourage domestic adoption.
(5) Protect adoptive parents from attempts to disturb their parental authority and custody.
 Any voluntary or involuntary termination of parental authority shall be administratively or judicially
declared to be established. Rather so as to establish the status of the child as legally available for
adoption.
Special Proceeding – December 2, 2010 (Room 403) Transcription
RULE 99 - ADOPTION

Definition:

- Child legally available for adoption – a child who has been voluntarily or involuntarily committed,
freed of parental authority of his biological parents

- Voluntarily committed child – one whose parents knowingly and willingly relinquished parental
authority

- Involuntarily committed child – one whose parents had been permanently and judicially deprived of
parental authority over him due to abandonment or for other causes including incompetence to
discharge parental responsibilities

- Foundling (important definition) – deserted or abandonenact an infant or child whose parents are
unknown or child committed to an orphanage or charitable or unknown institution with unknown
facts and parentage

- Abandoned child – one who has no proper parental care or guardianship or his or whose parents
have deserted him

- Dependent child – one who is without a parent, guardian or custodian, for good cause desires to be
relieved of his care and custody

- Neglected – one whose basic needs are deliberately not attended to, inadequately attended to,
physically or emotionally

- Physical neglect – when the child is malnourished, or without proper shelter

- Emotional neglect – raped, seduced, maltreated, exploited, etc.

- Child placement agency – dully Licensed and accredited by the DSWD if to provide comprehensive
had child welfare services

- Child caring – agency duly licensed and a credited by the DSWD had that provides 24 are
residential care services for a bond end, or fund, had neglected or a voluntarily committed children

- Deed of voluntary commitment – if written instrument relinquishing parental authority committing

the child to the care and cost a date of the DS WT

- child study report - a study and made by the child social worker had of the child’s legal status
placement, history, etc. and that of his biological family, needed in determining the most
appropriate placement for him

- Home study report –a study made by the courts social worker had all the motivation and the
capacity of the prospective adoptive parents to provide a home that meets the needs of a child

- Supervised trial custody – the period of time during which a social worker oversees the adjustment
and emotional relations had between the adopter an adoptee

- Simulation of birth (remember: there is a crime of simulation of birth under the RPC, but RPC does
not define what is simulation, there is simulation under 7610, 9344- Juvenile Justice Law and under
trafficking in person law)- tampering of the civil registry to make it appear n the birth records that
a certain child was born of the person who is not his biological mother, and thus cause the child to
lose his true identity and status
 - Pre –adoption - services – refers to psycho-social services provided by a professionally trained social
workers of the DSWD

Who may legally adopt

- Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral
character, has not been convicted of any crime involving moral turpitude

- Alien – possessing the same qualifications but 2 more conditions: his country has diplomatic
relations with the Republic of the Philippines, that he has been living in the Philippines for at least 3
continuous years prior to the filing of the petition for adoption and maintains such residence until
the adoption decree is entered, that he has been certified to have the legal capacity to adopt in his
country, and that his government allows the adoptee to enter his country as his adopted child

- Requirement of residency may be waived in three cases

- But in the respect to the ward - after the termination of guardianship and and clearance of his
financial accountabilities

- Husband and wife shall jointly adopt, except in 3 cases

Who may be adopted?

 person below eighteen (18) years of age

 legitimate child of one spouse

 Illegitimate child

 Person of legal age, regardless of civil status

 Child whose adoption was previously rescinded

 child whose biological or adoptive parents have died

 child not otherwise disqualified by law or these rules of court

Venue

15. family court

16. Province or city: where the prospective adoptive parents reside

Contents of the Petition

15. Form: Verified

16. Contents: state whether the petition contains an application for change of name, rectification of
simulated birth, voluntary or involuntary commitment of children, or declaration of child as
abandoned, dependent or neglected
  If the adopter is a Filipino allege the following

 jurisdictional facts

 petitioner is of legal age, full civil capacity and legal rights;. etc

 If the adopter is an alien

 jurisdictional facts

 his country has diplomatic relations with the Philippines

 legal capacity to adopt

 s government allows the adoptee to enter his country

 residence for at least 3 years preceding the filing of his petition

 The requirements of certification of the alien’s qualification – may be waived in 3 instances

 If the adopter is the legal guardian of the adoptee – that guardianship had been terminated and the
guardian had cleared his financial accountabilities

 If the adopter is married – t he spouse shall be a co-petitioner for joint adoption. There are 3
exceptions.

 If the adoptee is a foundling - the petition shall allege the entries which should appear in his birth
certificate

 If there is a prayer for a change of name – then the cause or reason for the change of name

In all petitions, it shall also be alleged:

(3) first name, surname, etc. of adoptee
(4) adoptee is not disqualified
(5) probable value and character of the estate of the adoptee,etc.

SEC. 8. Rectification of Simulated Birth (if the adoption has the prayer for rectification)
 It shall be alleged that the adopter is s applying for rectification of a simulated birth
 simulation was made prior to the date of effectivity of RA 8552
 that it is for best interests of the child
 that adoptee has been consistently considered and treated by petitioner as his own child

SEC. 9. 
(3) Adoption of a foundling, an abandoned, dependent or neglected child.
1. State the facts showing abandonment, etc.
2. names of the parents
3. name of the duly licensed child-placement agency or individual
4. DSWD is authorized to give its consent

Sec. 10.
(4) If the petition for adoption also carries with it the petition for change of name. State the following:
1. name of the child
 2. aliases or other names
3. full name by which the child is to be known
(5) There is an old jurisprudence to the effect that you cannot lump together adoption and change of
name, for 3 reasons: (1) they have different jurisdictional facts; (2) it is not allowed for joinder of
parties

SEC. 11. 
(3) Annexes to the Petition
1. Birth, baptismal or foundling certificate
2. Affidavit of consent detailing some facts under letter B (I think Judge means to refer to Sec. 11-
B of the Codal)
3. Child study report
4. If alien, certification that he has the legal capacity to adopt
5. Home study report
6. Adopter’s Decree of annulment, nullity or legal separation

(4) Now, the written consent of the natural parent can be dispensed with if the paren has abandoned
the child, or such parent is insane or hopelessly intemperate. Physical estrangement alone without
physical and moral desertion is not tantamount to abandonment
(5) A person may legally adopt 2/ more children

SEC. 12
(3) The next step is order of hearing
(4) When shall the court issue the order? If the petition is sufficient in form and substance
(5) Then, it shall issue an order containing the following:
1. registered name of the adoptee
2. purpose
3. complete name which the adoptee will use if petition is granted
4. date and place of hearing
5. directive to the social worker, to prepare and submit the Child and Home study report
6. directive to the social worker of the court to conduct counseling sessions with the biological
parents
(6) furnish the Solicitor General, DSWD, biological parents of the order

SEC. 13. Child and Home Study Reports

(3) What is the task of the social worker?
1. verify with the Civil Registry the real identity and registered name of the adoptee
2. secure a certificate of foundling or late registration
(4) The social worker shall also establish that the child is legally available for adoption
(5) In case the adopter is an alien, the home study report must show the legal capacity to adopt
(6) If after the conduct of the case studies, the social worker finds that there are grounds to deny the
petition, then he shall make the proper recommendation to the court

SEC. 14.  Hearing
(3) Next is hearing. During the hearing petitioner and the adoptee must personally appear
(4) Court shall verify whether the biological parents have been counseled

SEC. 15.  Supervised Trial Custody

 Before issuing of the decree of adoption. Note: its not decision, or order, its DECREE
 Court shall give the adopter trial custody of the adoptee for a period of at least 6 months, within
which the parties are expected to adjust psychologically and emotionally, and also for the purpose
of adopting binding relationship
 Trial custody may be reduced or exempt, If the court finds that he same shall be for the best
interests of the adoptee, stating the reasons therefor
 But an alien adopter however must complete the 6-month trial custody. There are 3 exceptions

SEC. 16.  Decree of Adoption

  After trial custody, and the court is convinced from the trial custody report and the evidence
presented that the adoption shall redound to the best interests of the adoptee, a decree of adoption
shall be issued
 Taking effect as of the date the original petition even if the petitioners die before its issuance
 Contents of the decree:
1. name by which the child is to be known and registered
2. it shall also contain an order to the clerk of court to issue to the adopeted a certificate of finality
3. adopter to submit a certified true copy of the decree of adoption and the certificate of finality to
the Civil Registrar.
 Duty of the civil registrar:
1. Annotate on the adoptee’s original certificate of birth the decree of adoption
2. issue a certificate of birth
3. seal the original certificate of birth
 If the adoptee is a foundling, the court shall order the Civil Registrar to annotate the decree of
adoption on the foundling certificate and a new birth certificate shall be issued

SEC. 17
 Clerk of Court shall prepare book of adoptions
 The validity of adoptions cannot be collaterally attacked, there must be a direct action

SEC. 18
 all hearings in adoption cases, shall be confidential and shall not be open to the public

SEC. 19.  Rescission of Adoption of the Adoptee

 Form: verified or under oath

 Filed by adoptee (not adopter)

 Who is over 18 years of age. If minor he must be assisted by guardian or counsel

 Grounds:

1. repeated physical and verbal maltreatment

2. attempt on the life of the adoptee

3. sexual assault or violence

4. abandonment

 Adoption shall not be subject to rescission by the adopter.

 Venue: Family court of the city or province where the adoptee resides

 Judge: we don’t have family courts yet. So, RTC designated as family courts. The family courts will
be located in the most populous municipality , not city. In Cebu, its Consolacion

SEC. 21.  Time within which to file petition for recission

 within 5years after he reaches the age of majority

 or if he was incompetent at the time of the adoption, within 5 years after recovery from such
incompetency
SEC. 22.  Order to Answer

7. respondent shall answer the petition within 15 days from receipt of the irder

SEC. 23.  Judgment

8. after trial, then judgment

9. If the court finds that the allegations of the petition for rescission are true – then, it shall render
judgment ordering the rescission of adoption, with or without costs, as justice requires

10. parerental authority of the biological parent of the adoptee, if known, or the legal custody of the
Department shall be restored if the adoptee is still a minor or incapacitated

11. successional rights shall revert to its status prior to adoption

12. another effect: order the adoptee to use the name stated in his original birth or foundling certificate

13. court shall order the Civil Registrar to cancel the new birth certificate of the adoptee and reinstate
his original birth or foundling certificate

INTER-COUNTRY ADOPTION

SEC. 27.  Objectives

 consider inter-country adoption as an alternative means of child care

 ensure that the child enjoys the same protection accorded to children in domestic adoption

 take all measures to ensure that the placement arising therefrom does not result in improper
financial gains

SEC. 28.  Where to File Petition

 verified petition to adopt a Filipino child may be filed by a foreign national or Filipino citizen
permanently residing abroad with the Family Court having jurisdiction over the place where the
child resides or may be found

SEC. 29.  Who may be adopted

 child legally available for domestic adoption may be the subject of inter-country adoption

PROCEEDINGS REGARDING CHILD CUSTODY, SEC. 6 AND 7, RULE 99

 court shall:

1. award the care, control and custody of the child as will be for its best interest

2. permitting the child to choose which parent it prefers to live with, if it be over 10 years of age,
unless the parents so chosen are unfit to take care of the child
 3. if both parents are improper persons, then paternal or maternal grandparents , if not oldest
brother or sister, if not, some reputable and discreet person or it may order the commitment of
the child to any suitable asylum

 no child under 7 years of age shall be separated from its mother – exception: unless the court finds
there are compelling reasons therefor

 RTC-family court, upon petition, by some reputable resident of the province setting forth facts, may
issue an order requiring parents to show cause why the child should not be taken from its parents

 Petition for custody of a child may be petition filed for the purpose. It may also be petition for
habeas corpus or as an incident to a main proceeding

 Parental authority and responsibility are inalienable and may not be transferred or renounced.
Except in cases authorized by law

Rule 101 - PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSONS

 Under the proposed new rule, it is already cap[tioned as Medical commitment

SEC. 1 – Venue

 Venue: RTC

 Who will file? Secretary of health

 Grounds:

1. commitment is for the public welfare, or for the welfare of said person

2. or the one having charged of him is opposed to his being taken to a hospital

Sec. 2

5. next step is Order for hearing

Sec. 3. Hearing and judgment

6. then, after hearing, Judgment

7. if allegations are found true, then the court shall order his commitment or other place for the
insance

Sec. 4.

 Insane may be discharged if:

1. temporarily or permanently cured

2. Or he may be released without danger

RULE 102-HABEAS CORPUS

 This must be studied in connection writ of amparo and writ of habeas data
 Habeas corpus: produce the body
 Amparo: produce the body. Or if it cannot be produced, look for the missing person
 Coverage of habeas corpus:
1. Part I: all cases of illegal confinement or detention, by which any person is deprived of his
liberty
2. Part II: By which the rightful custody of any person is withheld from the person entitled thereto
 The restraint of liberty must be illegal and involuntary deprivation fo freedom of action
 Writ is proper legal remedy to enable parents to regain custody over minor child
 Under second part, that is custody, there may be no illegal nor involuntary deprivation for freedom
of action of the person whose custody petitioner seeks. Al the petitioner must show is that he is
entitled to custody of the person whose release to him is withheld by respondent
 Case in point: there is this guy, more than 50 years old. His style, is he goes to towns where there
are beauty contest, and there are young girls. Nakadala siya ug isa ka chicks. Naa isa ka beauty
titlest,15 years old siya, gi-puyo niya diri. Family name G. Although it is a public record. They filed a
petition for the issuance of a writ of habeas corpus. Iyang defense kay: ni-sugot man ang bata. Ang
gago nga judge, gi-deny ang habeas corpus kay ni-sugot ang bata. That’s not the issue. The issue
is the mother or the parents are deprived of parental authority. Not the voluntary pakigpuyo diri sa
lalaki
 The objective of the writ is to determine whether the confinement or detention is valid or lawful. It
if is, then the writ cannot be issued. IT is issued when one is deprived of his liberty or is wrongfully
prevented from exercising his parental authority
 It is issued when a person is denied of one of more of his constitutional freedoms. When there is
denial of due process, where the restraints are not merely involuntary, but uncessary
 The essential object of habeas corpus is to inquire into all manner of involuntary restraint and to
relieve a person therefrom is such restraint is illegal
 Now suppose a person is temporarily free, may he avail of the petition for habeas corpus? The
answer is in the affirmative. The case is Atty Efren Moncupa vs. Sectary of National defense, Juan
Ponce Enrile. Moncupa, a lawyer was detained during the martial law years. He was released but he
was enjoined to report to the military camp every weekend. So he filed a petition for habeas
corpus. The solicitor general filed a motion to dismiss, it is useless, he is already free. The supreme
court said Moncupa is entitled to the issuance of the writ of habeas corpus because he is supposed
to be “free” but his freedom of movement was restricted. Remember, there is a constitutional right:
freedom to travel
 So, in habeas corpus, the inquiry is not physical restraint alone, it includes restriction of freedom of
movement which are attached for conditions of temporary release
 Where the restraints are not merely involuntary but appear to be unessary, and where the is to
deprivation of freedom held to be invalid, the person concerned applying for the issuance of the
writ may still avail himself of the privilege of the writ of habeas corpus
 Amparo: the case is Manalo Brothers vs. Secretary of national defense. Decided year 2010. What
happened to the case? This is the case of involuntary disappearance , subject matter of amparo. In
the case of the manalo brothers, there were 3 brothers kidnapped by the military and detained in
the military barracks. Missing for several months. They were able to escape when the guard was
sleeping. They were already free. They filed a petition for a writ of amparo with the court of
appeals
 The secretary of national defense filed a motion to dismiss. The petition for amparo is moot and
academic. Supreme court said No, because amparo does not cover only deprivation of life, liberty
and security, but threats, the most important, threats, there was still a threat against the persons of
the manalo brothers because they might again be kidnapped and possibly killed. Okay, that’s the
case of manalo
 Grounds for issuance of writ:
1. Once judicial proceedings have started the inquiry is not on the erros commited, but whether
the proceedings or judgment under which the person is restrained is a complete nullity.
1. So the question is, may the court entertain a petition a petition for habeas corpus if there is
an order or decision of another court. General rule No, because habeas corpus is not a writ
of error. The habeas corpus court should into review the findings of fact and law of another
court with jurisdiction over the subject matter or the offense court. Basta naa jurisdiction,
 habeas corpus cannot correct. I warn you, even the decision of the other court is wrong,
meaning findings of fact wrong, conclusion of law wrong. Because of the principle of
immutability of judgment. You know this from civil procedure. Once the judgment of court
has become final, no matter how erroneous the judgment is, it cannot be corrected. For the
case has to end at some point in time.
2. 3 exceptions: to correct clerical errors, nunc pro tunc judgment, and of course if the
dispositive is vague, then you may file a motion for clarificatory judgment
2. So, the inquiry in the petition for writ of habeas corpus is addressed not to errors committed by
a court within its jurisdiction, but tot question whether the proceeding or judgment under which
the person is restrained is a complete nullity
3. Example: if a case of frustrated homicide. Is tried and judged by the MTC. Habeas corpus is a
remedy. It is not an interruption of proceedings, you are not reviewing evidence. You are simply
telling the other court that he has no jurisdiction or his proceedings are complete nullity
4. Example: violation of due process, accused was not given opportunity to present evidence.
Habeas corpus court cannot review the findings of another court. It is not a writ of error.
5. Because habeas corpus ia not a remedy if there are other adequate remedies. If there is
erroneous findings of fact, conclusion of law, then your remedies are the following. You either
file a motion for reconsideration within 15 dyas, you may either file a motion for new trial –
FAME, etc. then you may file a petition for relief under rule 38. If all else fails, then you may file
a motion for annulment on 2 grounds: lack of jurisdiction over the person/ offense charged OR
extrinsic fraud/ fraud committed outside of trial
6. The writ may be availed of
1. where as a consequence of judicial proceeding, there has been a deprivation of
constitutional right, resulting in restraint of a person
2. court has no jurisdiction to impose the sentence
3. excessive penalty, which is void to such exceess
7. it is settled that where the decision or conviction is already final, the appropriate remedy of the
accused who should be freed in view of the retroactive effect of a law, is to file a petition for
habeas corpus, not a motion for modification for final deicision
8. Case in point: Robin Padilla law (Amenedment to PD 1866), penalty was lowered. Padilla has
served the lower penalty. How do you free him. Retroactive man. File a petition for habeas
corpus
9. PD 582, Highway robbery. There was a decision rendered by the SC of indiscriminate highway
robbery. There was a favorable jurisprudence for their acquittal. So if you apply the
jurisprudence, their lawyers can file habeas corpus
10. Remedy is not for correction of errors. Court cannot in habeas corpus proceedings, review the
record in a criminal case, after judgment of conviction has been rendered.
11. To ascertain whether the findings of the trial court were in accordance with the evidence
12. Or to pass on the correctness of the conclusions of law of the trial court, based on the facts
thus found
13. Mere errors of fact and law which did not have the effect of depriving the trial court of its
jurisdiction of the court and defendant – must be corrected by appeal, by the form prescribed
by law

Sec. 2. Who may grant the writ

 Supreme Court, or any member
 Court of Appeals or any member
 RTC
 If issued by the SC, returnable or enforceable anywhere, to either Court of Appeals, Sandiganbayan
or RTC
1. What does this mean: the hearing can be made by CA, Sandiganbayan or RTC
 If issued by CA- returnable to RTC. RTC shall of course hear the petition
 If issued by the RTC – returnable or enforceable only within his judicial district
 May an MTC judge entertain petions for habeas corpus? Yes, in the absence of MTC judge
 Compare: writ of amparo. Amparo, usually RTC
Sec. 3. Requisites of application
 Verified
 Signed, by party for whose benefit it is intended, or by some person on his behalf
 Containingg the following:
1. person in whose behalf the application is made is imprisoned or restrained of his liberty –
otherwise, the court will have no jurisdiction
2. officer or name of the person by whom he is so imprisoned or restrained; - may be a public
officer or employee or a private person
1. if both are unknown or uncertain, the may be described by an assumed appellation – like
Station commander of Station 5
3. place where he is so imprisoned or restrained if known
4. copy of the commitment or cause of detention of such person – like a warrant of arrest, order
of commitment, certificate of finality of judgment
1. or, if the imprisonment or restraint is without any legal authority, such fact shall appear
 In all petitions for habeas corpus, the court must inquire into every phase and aspect of petioner’s
detention.

Sec. 4. When shall the writ be denied or not allowed?

 If it appears that the person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge

1. Meaning, there is an order of commitement. There is a decision, especially if the decision ahs
aralredy becme final and execuory and the clerk of court has already issued a certificate of
finality

 or by virtue of a judgment or order of a court of record

 Purusnat to Sec. 4, ocne a person detiand is duly charged in court, he may no longer question his
detention through the petion for ths issuance of a writ of habeas corpus. His remedy would be to
quash the information or warrant of the arrest duly issued

 So, the body of the accused in court already. The judge will ask the detaining officer “Why are you
detaining him.” “Your honor, there is already a warrant of arrest and information has already filed”.
Tapos! Order: since there is already an information a warrant issued, petion has become moot and
academic. So, dismissed.

 The habeas corpus court cannot question the manner, legality of the issuance of the warrant of
arrest and ifnomraitn. Remember: Rules of criminal procedure. There is executive determination of
probable cause and judicial determination of probable cause before issuing the warrant, the judge
must find probable cause. If there is probable cause, then the judge will issue the warrant of arrest.
That discretion cannot be disturbed by another court.

 Now, if there is already an information. Then there is an adequate remedy, file a motion to quash
on lack of jurisdiction, etc. If there is a warrant of arrest improperly issued, then the remedy is to
file a motion to quash and set aside the warrant of arrest for lack of jurisdiction over the person of
the detainee

 If the accused is out on bail, habeas corpus will be dismissed. Why? Because he is no longer
physically restrained

 If there is already a judgment or order of the court with jurisdiction, then the habeas corpus will be
dismissed
  Other instance of habeas corpus will not issue:

1. subsequent issuance of judicial process

2. filing of complaint or information

3. filing of motion for bail – because if bail and approved, then accsued is on temporary liberty

 Illusorio vs. builder: Mrs. Filed a petition of habeas corpus, para and ban mu-adto sa iya. SC said,
dili pweded and habeas corpus, kay personal obligation na sa bana. The wife may not secure a
petition of habeas corpus to compel her husband to live with her in conjugal bliss.

 Suppose, there is a case submitted for decision, all the records were lost. Nakaon sa anay,
nasunog. Is habeas corpus a remedy? No, there is an adequate remedy which is reconstitution of
records

 Habeas corpus and certiorari may be availed of, they are not incompatible and inconsistent. They
may be ancilliary to each other if necessary to give effect to the orders of the higher court.

1. Writ of habeas corpus reaches the body and jurisdiction , but not record. A writ of certiorari,
reaches the record but not the record

2. Writ of habeas corpus may be used with certiorari for the purpose of review

3. In other words, if there is a grave abuse of discretion in the issuance of habeas corpus,
certiorari is a remedy

 Habeas corpus does not lie where the petioner has the remedy of appeal or certiorari. Neither can it
grant the writ at this stage, because habeas corpus is not intended as a substitute for the function
ot the trial court

Sec. 5. When the writ must be granted and issued

(6) court or judge authorized to grant the writ, when a petition therefor is presented and it appears
that the writ ought to issue. SO, facial determination. Look at the allegations oo the petition.
Sufficient in form and substance? Then grant the petition

(7) grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ
under the seal of the court

(8) in case of emergency, the judge may issue the writ under his own hand, and may depute any
officer or person to serve it

1. it’s the court who issue the order, but the clerk prepares the writ of habeas corpus

2. if the clerk refuses to issue the writ then he may be liable for indirect contempt of court, without
prejudice to disciplinary action (Administrative case)

December 9

Special Proceedings

Sec. 6
To Whom writ may be directed or what to require?

-Directed to a peace officer or the respondent is a public officer or employee, maybe a private person.

If imprisoned or restraint by officer writ shall be directed to him.

Ex. A Station Commander, Shall command him to have the body of the person restrained of his liberty
before the court or judge designated in the writ at the time and place specified. So you are commanded to
produce the body of the subject. December 17 2010 at 9 in the morning.

-If the subject is imprisoned or restrained by a private person.

The writ shall not be directed to him. It shall be directed to an officer and shall command him to have the
body of the person restrained of his liberty before the court or judge designated in the writ at the time and
place specified. So the person who imprisoned or restrained another will be summoned. He will be directed
to appear and to show cause as to the imprisonment or restraint.

How prisoner designated?

By his name,

If his name is known. Ex. Produce the body of Juan Delacruz.

If not known then he shall be described and identified.

Writ may be served in the province by the sheriff or other officer designated by the court or
judge.

The original shall be left to the person whom is directed, preserving a copy to make a return of service.

Supposed the person cannot be found.

Service shall be made on any person exercising such custody.

Sec. 8 How writ executed and returned.

If writ is directed to an officer. He shall convey the person imprisoned or restrained before the judge. \

Ex. Station commander, You bring the body of this subject to court or in absence of the (severity? Di ko
sure) in some other judge of the same court.

The Body of the subject is not produced for the following reason:

1.)Sickness or infirmity of the person being produced and such person cannot be without danger be
brought in the court or judge. Ex. Subject is in the ICU.

No Writ may disobeyed due to defect of form.

Sec.10 Contents of return

Return is the answer or comment of the respondent officer. It must be in writing, under oath and

plainly and unequivocally containing the body, whether he has or not the body in his custody.

Difference Amparo and Habeas Corpus.

HC:If the Officer says that the person is not in the custody, the petition will be dismissed.

A: The court will command the officer to look for him. Report to the court is there any evidence that he is
detained by somebody? If he has in his custody, then explain the authority and true cause therein.

Ex.Yes he is detained, There is an order of commitment signed by the executive judge.

If with him and cannot produced. Must explain the non production.

Ex. Gravity of the sickness or infirmity and such person cannot be without danger be brought in the court
or judge.

If the detainee is transferred: He shall state particularly to whom and what time, cause, authority such
transfer is made.

The return shall be signed and sworn to by the officer.

If there is a return then the court will conduct a hearing. The judge shall immediately proceed to hear and
examine the return and such other matters put into consideration. If not produced then the must prove the
sickness or infirmity of the person. The court or judge must be satisfied that the infirmity is so grave etc.

When the return evidence and when only a plea?

If the reason for the detention is the existence of the warrant of commitment pursuant to law, Judgment is
final and executor, or under the rule of warrantless arrest. It shall be stated in the return.

The return shall be considered as prima facie evidence as the cause of restraint. Meaning the Habeas
Corpus Court as a rule cannot question the validity of the order of commitment, any other order or final
judgment of a court. HC court is not an appellate court. It shall give full faith and credit to another court.

If private person. It shall be considered as a plea of the facts therein stated. The Private person must
prove by clear and convincing evidence of the legal and factual basis of the detention.

The return if by an officer, need not explain. It is prima facie presumed. The petitioner needs to overturn
the presumption. If private person, the burden is on him to prove.

If the release of a detainee is an establish fact and is not in dispute, and do not constitute a missing
person, the petition becomes moot and academic. The burden of proof is on the officer to prove the
release.

Sec. 14 When person lawfully imprisoned re committed and when let to bail.

If the person detained is lawfully committed then he cannot be released for commission of the crime
punishable by death.

If committed because he committed an offense not punishable by death then he may be recommitted to
prison or admitted to bail.

An accused against whom an information has been dismissed for lack of jurisdiction may no longer be
detained. There is simply nothing to hold him answerable for. The court where the criminal case is filed is
without jurisdiction, the authority of the court to hold the accused in confinement pending trial is a valid
subject of petition of habeas corpus.

SEC 15. When a prisoner is discharged when no appeal.

If the officer after receiving the order habeas corpus case is directed to release and he does not appeal,
then the person detained must be released, but the person cannot be released if the officer files a notice of
appeal.

When the court or judge has examined into three cause of capture and restraint of the prisoner and is
satisfied that he is unlawfully imprisoned or restrained, he shall be discharged from confinement, but such
discharge shall not be effective until copy of the order has been served on the officer or person detaining.

If the officer or person detaining does not decide to appeal, the prisoner shall be released, otherwise
stated if the officer appeals the decision of the court then the prisoner may not be released.

Who may appeal the order granting the writ?

- Fiscal, Prosecutor
 - Solicitor General

The Private party are bereft of the personality to prosecute the appeal.

Failure to appeal is 15 according to jurisprudence.

Sec. 16 Penalty of the Clerk of Court if refuses to issue the writ.

- Fine 1000

- Contempt of court.

Penalty if the writ is disobeyed.

 Fine 1000

 Contempt of court

A person discharged under the writ may not be imprisoned again. If imprisoned again penalty same as
above.

No prisoner may be removed from custody unless by legal process or by order of the proper court

Writ of Amparo

Effectivity: October 24, 2007

From the word amparar or “to protect”, a Spanish word that originated in mexico.

A remedy available to any person whose right to life, liberty and security is violated or threatened (take
note, not found in habeas corpus) by an unlawful act or omission by a public officer or private person or
entity like a corp. .

The writ shall cover extra judicial killings and enforced disappearances( not found in the law, but in a Bill).
The writ does not define the both above, It is defined under the International HumanitarianL law and anti
torture law.

Enforced Disappearances(Characteristics):

17. Arrest, detention, abduction of a person by a government official or organized group. Or private
individuals acting in the direct or indirect acquiescence of the government.

18. Refusal of the state to disclose the fate or whereabouts of the person or refusal to acknowledge the
deprivation of liberty which places such person outside the protection of the law.

Amparo is both

17. Preventive Relief- Breaks the expectation of impunity in the commission of the above offenses

18. Curative relief- It facilitates the punishment of the perpetrators. It will inevitably lead to
subsequent investigation.

Applicability:

 Violations or threatened violations of

 Right to life, liberty, security

  Extra judicial Killings

 Enforced Disappearances

This may be applied retro actively.

Secretary of National defense vs. Manalo- When victims of enforced disappearances are separated
from the rest of the world behind secret walls, they are not separated from the constitutional protection of
their basic rights. Manalo bros. were kidnapped and detained in Fort Magsaysay in 3 months. They were
able to escape. There was another threat of abduction, possible execution by the military. They filed a
petition for prohibition, injunction with TRO before the RTC. They also prayed for protective custody and
inspection orders within the camp they were detained. When they filed there was no Amparo rule yet,
subsequently the rule on Amparo took effect. The SC applied Amparo retro actively.

Case of General Razon

Case of Fr. Robert Reyes vs Secretary – There was an order of hold departure order for Fr.Reyes. He
therefore alleged of his right to liberty and security were threatened by the issuance of the order. Sc said
no, Amparo does not cover this case. There is no actual violation of the right to life liberty and security.

Who may file?

 The aggrieved party himself

 Any qualified person should file in the following order:

Member of Immediate family

Ascendant, descendant within the fourth degree of affinity or consanguinity.

Any concerned citizen, organization, institution

The filling of the petition by the aggrieved party suspends the right of all other parties similar pleadings.

The purpose of order of preference is to prevent indiscriminate filing(groundless petitions) petit and if the
aggrieved party may be afraid.

May be issued at any day, morning or evening.

Issued if on its face it ought be issued.

Manner of service: Personal service is preferred, but substituted service is allowed.

No general denial allowed, because a litigation is not a game of guile, but the search of truth which alone
shall be the basis of justice.

Where to File and return?

RTC of the place where the act was committed or any of its elements occur.

Enforcibility – It may be served anywhere in the Philippines.

If issued by RTC then return in RTC. If issued in Sandiganbayan or CA: Answer in Sandigan, Ca or any
justice. They may also direct the RTC to hear, meaning may also be filed with the RTC.

IF SC issued: SC may hear the return or may direct CA , Sandigan bayan, RTC to hear the petition.

No docket and other lawful fees.

Contents
Form:

 In writing

 Verified

 Under Oath

Contents

 Personal circumstances of the petitioner

 Name and personal circumstances of respondent

 Right to life, security, liberty violated or threatened to be violated.

 Investigation conducted if any.

 Specifying the names addresses, personal circumstances etc.

 Actions and recourses taken to determine the whereabouts of the person

 Relief prayed for

Note- Not found in the Habeas Corpus

When Issued?

Court justice or judge shall immediately order the issuance of the writ if on its face, it ought to issue

Facial Determination- Meaning the writ on its face is sufficient in form and substance to be issued by the
Clerk of court or the judge.

Penalty for refusing to issue the writ?

The Clerk of court will be liable for contempt of court without prejudice to disciplinary action.

If a person refuses to serve the writ.

How writ is served?

Personal service is preferred.

Apply the rule on substituted service.

Serve in his residence to a person of legal age and must be residing therein, if not then office with the
person in charged of the office..

Served by:

(6) Judicial officer

(7) Person deputized by the court

Return of writ of Amparo.- The answer or comment of the respondent, must be verified, meaning under
oath.

 What is stated in the return?

 Lawful defenses.
  Steps or actions taken to determine the whereabouts of the aggrieved party.( not in Habeas C)

 All relevant information in the position of respondent.

Public officer or Employee shall state the following.

(4) Verify the identity of the aggrieved party.

(5) To recover and preserve evidence

(6) To identify witnesses,

(7) To determine cause, manner, location and time of death or disappearance.

(8) Identify and apprehend the person/s involved.

(9) Bring offenders to a competent court.

(10) State other matters relevant to the investigation.

Gen rule: Period to file a return is non extendable

Exc.: Highly meritorious grounds

General denial is not allowed. Defenses not pleaded are deemed waived( Omnibus motion rule).

Sec. 11 Prohibited pleadings and motions

(6) Certiorari

(7) Prohibition

(8) Mandamus

(9) Motion to dismiss(even if anchored on lack of jurisdiction on subject matter)

Motions Allowed: Motion for new trial and petition for relief under rule 38

Effect of failure of officer to make a return?

Hearing shall proceed to heat the petition ex parte.

What kind of hearing? Summary- ex.Testimonial evidence is allowed

Reliefs

Reliefs in Amparo maybe availed at time of petition or any time before final judgment.

Temporary Protection Order- Need not be verified, not be under oath, maybe issued moto proprio.

Petitioner or aggrieved party or any member of the immediate family, will be protected under a
government agency or by an accredited person or private institution capable of keeping and securing

The Sc can accredit person or private persons.

Inspection Order- Order any person in possession or control of any designated land or property to
permit for the purpose of entry, measuring , surveying etc. Verified and under oath there must be a
hearing.

Shall state in detail the place or places to be inspected.

The motion for inspection maybe opposed by respondents.

Grounds: National Security or privileged communication.

The movants must show the inspection order is necessary to establish the rights of the aggrieved party.

It shall specify the person or persons authorized to make the inspection.

Motion for Production of documents, papers accounts, letters, books, photgraphs etc. – Need
not be underoath, moto proprio.

Entry into the witness protection program Republic Act 6981.-

These reliefs may also be availed of the respondent.

Sanctions failure to make a return

Contempt of court

Making a false return

(6) Perjury.

(7) Contempt of Court

Quantum of evidence- Substantial Evidence, That kind of evidence which a reasonable mind might
accept to support a conclusion less than proof reasonable doubt . Its very hard to prove extra judicial
killings as the accused are officers themselves that’s why the quantum of evidence is only Substantial
evidence.

If respondent is private individual- He must prove that ordinary diligence was observed in the performance
of duty.

If public officer or employee- He must prove that extra-ordinary diligence was observed in the
performance of duty.

Do not apply the presumption that official duty has been regulary performed to evade responsibility.

Judgment- 10 days from the time the petition is submitted for decision.

Its very hard to prove extra judicial killings as the accused are officers themselves that’s why the quantum
of evidence is only Substantial evidence.

Appeal: It must be under Rule 45 Petition for review on certiorari. Raise questions of fact and law. If
issued by the RTC appeal direct to the SC under rule 45. Sandigan direct to the SC.

Sec 20. Archiving and revival – Ordinarily If plaintiff and petition fails to produce a witness and
evidence case will be dismissed for failure to prosecute NOT in Amparo. The Sc will make a periodic review
of archived cases. If the petitioner fails to prosecute after the lapse of 2 years. The petition will already be
dismissed for failure to prosecute.

Intsitution of Separate Action.

Amparo is not a criminal, civil, administrative action it is a special process. Even if there is an existing
petition for Amparo may file civil, admin or criminal.

Rule on Primacy of Criminal Action- when a criminal action has been commenced, no petition for the
issuance of a writ may be filed. Reliefs under the writ shall be available by motion in the criminal case.

When a criminal action has been filed subsequent to the petition of the writ. The petition shall be
consolidated with the criminal action.

This rule shall not diminish, modify substantive rights.

The rules of court is only suppletory to Amparo regarding violations of the cases applicable to Amparo.

Several purposes of Amparo (found in Secretary of National defense vs. Manalo):

(7) Amparo Liberted- Protection of personal freedom

(8) Amparo Contra Legis- Judicial Review of constitutionality of statutes

(9) Amparo (Cacaccion?)- Judicial Review of constitutionality and legality of judicial decisions

(10) Amparo Administrativo- Judicial Review of Administrative cases

(11) Amparo Agrarian- Judicial Review of rights of agrarian reform for peasants

Constitutional Basis-

(7) Article VIII sec The duty of the courts of justice to settle actual controversies

(8) Grave Abuse Clause (Contra legis, Cacaccion, Administrativo)

(9) Section 5 No. 2 Power to review, revise, reverse modify or affirm on appeal or certiorari as the rules
of court may provide final judgments or orders of lower court.

(10) Par. 8 Sec 5 No. 2 – Constitutionality or validity of any treaty, law, ordinance,
executive orders, proclamations is in question.

Right to Security

(5) Freedom from threat to life, liberty and security.

(6) Protection by the government, The court cited the production order and search order by the
constitution.

Habeas Data

Produce the data, correct the data, rectify the data. You want to borrow money???( Borrow from Judge)
there are records from private banks that you lose in one civil case and you were not able to pay. So you
cannot borrow. The records in that civil case is already obsolete. You might have appealed and to the Sc
then you won. You have to rectify the record in the banks.

Who may file?

 Aggrieved party

 Spouse

 Children

 Parents

 Ascendants, descendants

 Collateral relatives within the fourth civil degree of consanguinity and affinity

Where to file? RTC of the place where the petitioner or respondent resides or that which has jurisdiction
over the place where the data or information gathered etc.
SC, or CA Sandiganbayan- Action concerns public data files of public offices.

It is returnable where it is filed.

No docket and other lawful fees

Can be served against these persons anywhere in the Philippines:

 Private person

 Public officers or employees

 Entities engaged in the following: Gathering, collecting, storing of data, or info regarding the
person, family, home and correspondence of the aggrieved party.

This is a remedy available to ANY person. This is a privacy rule. Threat to Life, privacy, liberty, security is
violated or threatened with violation.

Reliefs Prayed for:

 Updating

 Rectification

 Suppression- ex. Data na Ala Hayden Kho. E suppress ni or destroy.

Contents of Petition

 Personal circumstances of petitioner and respondent.

 The manner in which right to privacy is violated or threatened

 Actions and recourses taken

 Location of the files. Registers , Data bases.

Issuance of Relief

When on its face it is sufficient in form and in substance. It shall also set the date and time for summary
hearing. Not later than 10 days from issuance.

Penalty = Contempt and disciplinary action

How served? By the officer deputized by the courts. Preference on personal service if not then follow the
rule of substituted service.

Return= Shall be made within 5 working days from service of the writ.

Defenses, The release of the data will

 Compromise National security

 State secrets

 Privilege communication( Lawyer client, etc)

 Cannot be divulged due to its character

January 20, 2011

Caballes vs. CA

Habeas Corpus is not in the nature of a writ of error – meaning habeas corpus court cannot review the
findings of fact or conclusion of law of another court even if it is a lower court. If not satisfied with the
findings and conclusion there are several remedies:

- Motion for reconsideration

- Notice of appeal

If there is already a judgment:

- Motion for New trial

- Petition for Relief (Rule 38)

- If all else fails you may file Annulment of judgment on three exclusive grounds :

c.1. Lack of Jurisdiction

c. 2. Extrinsic Fraud or Fraud committed outside the trial

c. 3. Deprivation of Due Process

As long as the court rendering the decision has the jurisdiction over the person, subject matter, cause of
action, or nature of the action a habeas corpus court cannot review the findings and conclusion of another
court. It is not intended as a substitute of the trial court’s function. It cannot take the place of appeal,
certiorari or writ of error. The writ cannot be use to investigate and consider an error that maybe raise
relating to procedure or on the merits. If the error is relative to procedure then you may try certiorari to
annul the order.

The inquiry in the Habeas Corpus Proceeding is address to the question of whether the proceedings and
the assail order is for any reason null and void. The writ is ordinarily granted where the law provides, so
not ordinarily granted where there are adequate remedies in the regular courts. (so, if appeal is a remedy
no habeas corpus)

Cannot be issued as:

 a writ of error

 reviewing error of law and

 Irregularities not involving jurisdiction.

So, where the restrain is under legal process (there is warrant of arrest or order of commitment and etc.)
mere errors and irregularities which do not render the proceedings void are not ground for relief by habeas
corpus. The only question to be resolve is, whether the custodian has authority to deprive the petitioner his
liberty. A writ of habeas corpus which is regarded as a palladium (not sure can’t understand sir) of liberty is
a prerogative writ, which does not issued as a matter of right but based on the sound discretion of the
court.

Habeas corpus again going back to Caballes that resorting to the writ is not to inquire into the criminal act
of which the complaint is made. Can you join the petition for habeas corpus and certiorari?

Answer: In the case of Caballes it is stated that you cannot join the two remedies because this are
governed by different set of rules. It is also violative on the rule on joinder of causes of action, including
joinder of parties. Writ of habeas corpus is not proper remedy to assail denial of the petitioner’s motion to
dismiss the case, the denial of the court for bail as well as voluntary inhibition of a judge.

Jurisdiction of probate court.

Primary concern of a Probate court:

19. Administration

20. Liquidation

21. Distribution

There can be no valid partition among heirs until the will has been probated.

Change of Name and or Correction of Entries

To justify petition for Change of Name should establish the ff:

19. Proper and compelling reason

20. Will be prejudice by the use of the true name and official name

Middle name – serve to identify the linage or filiation of a person as well as to further distinguish him from
others who may have the same given name and surname.

The Registration in the Civil Registry of the birth of an individual requires that the middle name be
indicated in the certificate.

PNB vs. Sanao Marketing (foreclosure of mortgage)

Writ of possession is actually ancillary to Writ of Execution. To enforce judgment to recover possession of
land, if property is mortgage and there is foreclosure and the property is sold in a public auction and there
is a purchaser. That is the time that the purchaser will file a motion for the issuance for the writ of
possession. The issuance of the writ of possession is a ministerial duty of the court even if there is an
action for annulment of mortgage and even if there is an action to nullify the mortgage sale.

Angeles vs. Maglaya (next of Kin as Administrator)

Next of Kin as Administrator - those who are entitled under the statute of distribution of the decedent’s
property. One whose relationship, that he is entitled to the share of estate as distributed or in short an
heir.

Serwela vs. Delantar (not sure sa spelling)

Not only the civil registrar but also all persons that have or claim an interest which would be affected by
the proceeding concerning cancelation or correction of an entry in the civil register must be made parties
thereto. (citing Republic vs. Henerito and Labayo Ro vs. Republic)

Labayo Ro vs. Republic

X and Y both unmarried have a lovechild but the woman married another child. The man also married
another person. So the woman Mrs. Y married Z. The woman file a correction of entry to the birth record
of her lovechild with X. (nauwaw man xa katong nagpa.rehistro siya so sa name of father iyang ang name
sa iyang boyfriend gibutang X, married, palce of marriage, date of marriage, kompleto). Here, who shall be
made respondents?
Answer : The following:

 Local Civil Registrar

 NSO

 Father of the child

 The child

 Paternal Grandparent because of hereditary succession

Castillo vs. Gabriel

The purpose of temporary administrator is to preserve the estate until it can pass into the hand of the
person fully authorize administrator known regular administrator for the protection and benefit of the
creditors and the heirs. The appointment of special administrator is not governed by the rules governing an
appointment of regular administrator.

Kiani vs. Bureau of Immigration

Habeas corpus should not be grated in advance of trial, cannot be issued as a writ of error, or a means of
reviewing errors of law and irregularities.

Martinez vs. General Mendoza

Petitioner here filed a petition for the issuance of a writ of Habeas Corpus because his relative disappeared.
SC said it is not a proper remedy if your relative disappears. Under the new Rule its Writ of Amparo. Grant
of relief is not predicated on disappearance of person but on his illegal detention. Ultimate purpose
therefore is to release a person from unlawful restraint. The purpose is to determine whether he is illegally
deprived of his liberty. Habeas Corpus is not a means of obtaining evidence on the whereabouts of a
person of or a means of finding out who has specifically abducted or cause the disappearance of a certain
person (Writ of Amparo is proper). Proceeding of habeas corpus cannot be used as a substitute of
thorough criminal investigation (court is not to be liken to a prosecutor’s office)

Sallentis et. Al. vs. Abanillo

Custody of a child. In the absence of a judicial grant of custody to one parent, both parents is entitled to
the custody of the child.

Republic vs. Kho

Name is Kelly Dugmok Kho (hehehe). This is a case of correction of entry (citizenship). Cannot be said that
to change citizenship of Carlitos mother as it appeared in his birth certificate and the marriage of Carlitos
parents and the delete in the certificate in his sibling as well as change of date of marriage of Carlito and
Maribel involves correction of not just clerical errors rather the changes entails substantial and controversial
and entails adversarial proceeding.

Adversary proceeding - one having opposing parties. Contested, as distinguish from x party proceeding or
application. One of which a party seeking relief has given legal warning to other party and afforded
thereafter an opportunity to contest.

Effect of R.A. 1948 (Administrative Correction of First Name and Nickname)

Answer: Leaves rule 108 the correction of Substantial change in the Civil Registry in appropriate adversarial
proceeding. The law makes it possible for correction of clerical errors or typographical error or change of
Nickname. Publication of order and hearing cures the failure to implead indispensable party.

Habeas corpus in behalf of Lourdes Tamara

Writ of habeas corpus does not lie if it appears that the person alleged to be restrained of his liberty is in
custody of an officer under process, issued by a court or judge unless the court or judge has no jurisdiction
in the process.

When there is no action for expropriation and the case only involve complaint for damages or just
compensation Rule 67 would not apply.

MEPZA vs. Laya

Determination of Just compensation is a Judicial Function. The presidential decree fixed a just
compensation of land. It is struck down by the SC being unconstitutional because the determination of a
just compensation is not a legislative but a judicial function. Even under the new law, BOT law, the court
may still review the compensation fixed by other agencies.

NAPOCOR vs. BongBong

Giagian iyang yuta ug wire man nangayu ug right of way ang NAPOCOR. Giingnan ang tag-iya na ayaw
namu pagguna diha sa ubos sa wire kay makuryentihan mu. The land owner where deprived their right to
use the land. There must be a just compensation similar to expropriation.

Kilos Bayan vs. Ermita and Judge Gregory Ong

Listed to be a nominee for Supreme Court Judge, other oppose because they allege that Judge Ong was a
Chinese and not a natural born. Now the allege subsequent recognition of its natural born status by the
bureau of immigration and DOJ cannot amend the decision of the trial court stating that this individual and
his mother were naturalize along with his father. (Immigration and DOJ’s record shows that they are
natural born). There is a petition for naturalization, what does that need? If mangayu ko ug recognition by
a petition it means na foreigner ka, diba? Between the opinion or record of the DOJ and Immigration and
the record f the court, record of the court prevails. No substantial change in the record of the certificate in
the civil registry can be made without judicial order. Take note, judicial order and substantial change.
Under the law change in the citizenship status is a substantial change (RA 9048). SC said that respondent
Ong has the burden of proving in court his allege ancestral tree as well as and his citizenship under the
timeline of the three constitutions 1935, 1973 and 1987 and until he cannot prove that he is a natural born
he cannot be appointed in the said position because it will be a violation of the provision of the
constitution.

Sec. Of National Defense vs. Manalo

While written of enforce disappearances are separated from the rest of the world behind secret walls, they
are not separated of the constitutional protection of their basic rights. The constitution is an over arting sky
covers all in its protection. The case at bar involves the right to life, liberty and security in the first petition
of the writ of Amparo filed in this court. Now, when the Manalo brothers was abducted, and when the filed
a petition for Habeas Corpus with the CA, there was no Amparo yet. But later on Amparo was approved so
Amparo was retroactively applied. Can it be done? Yes because there is no vested right in procedure. The
original petition was for prohibition, injunction, and TRO. They also asked for protective custody order,
appointment of Commissioner or Fact Finding and for Access Orders or access to records and places. While
the petition was pending the Rule on Amparo took effect, so the Manalo brothers through counsel file a
manifestation and an omnibus motion to treat their petition as Amparo. The CA then grants it and treats
their petition as Amparo petition and under the Amparo Rule. According to the brothers, for a about 3 and
a half months, they were detained in Forth Magsaysay. They were detained in a big and unfinished house
inside the compound of a certain Ccapitan. They had a conversation with Gen. Palparan and with Helario
Tecson. Then, they started to plan their escape and in fact they were able to escape. They allege that they
were torture, there testimony were corroborated with Dr. Molino. The finding shows that the scars born by
respondents were consistent with the account for physical injuries. The Sec. of National defense disputed
the abduction and torture of the Manalo Brothers. The brothers allege that they were abducted, detained
and held in Comonicado, disappeared or under custody of the military. SC believed the story of the Manalo
Brothers. There was a return and it was explain in the return of the writ that the affidavit of Gen. Palparan
and Helario could not be secured in time. The case at bar is the first application of the Writ of Amparo.

Amparo is derived from the extra ordinary power of the SC and the power to promulgate rules, and
protection of constitutional right. This is an exercise of the expanded power to promulgate rules to protect
people’s right from extra-legal killing and enforced disappearances. Its coverage is confine to those two
instances or the treats thereof. This two term is defined in UN Convention on Torture.

Extra-legal killing – are killing which are committed without due process of law, without legal safeguard of
judicial proceeding

Enforced Disappearances - tended with the following characteristics – 1. arrest, detention or abduction of
a person by a government official or organized group or private individual acting with the direct or indirect
acquiescence of the government. 2. Refusal of the state to disclose the faith or whereabouts of the person
concern or refusal to acknowledge the deprivation of liberty which placed such person outside the
protection of law.

Amparo – originated in Mexico

 Means to protect

Porpuses of Amparo under our Constitution

 Amparo libertad (similar to Habeas Corpus)

 Amparo Contra Legis (Judicial review of Constitutionality of statutes)

 Amparo Casacion (Judicial review of Constitutionality of Judicial decision)

 Amparo Administratibo (Judicial review of administrative actions)

 Amparo Agrario (Protection of peasants)

This are found in Article 8 section 1 or Grave abuse clause – the power of the court to review if there is
grave abuse of discretion amounting to lack or in excess of the jurisdiction of any branch of the
government or instrumentality.

Habeas corpus is not an adequate remedy to solve extra-legal killing and enforced disappearances. Why? If
the person given the writ will say that he is not in our custody. The court should say that since he
disappeared so, look for him, wala na sa habeas corpus daritso na dismiss. If amparo naa na nga remedy
abante. Look for him, gather evidence, arrest person responsible for the disappearance of the killing.
Amparo rules grants interim and permanent relief, Amparo is hybrid mixed of common law and civil law
tradition. The remedy provides proper and judicial relief as it partakes of a summary proceedings that
require only substantial evidence to make appropriate relief for the petitioner. It served as preventive and
curative laws.

Preventive - it breaks an expectation of impunity in the commission of these offences.

Curative - for it facilitate the subsequent punishment of perpetrator as it inevitable yield to subsequent
investigation and action.
 In the case of Gen. Avilino – Razon, SC said that extra-legal killing and enforced disappearances are
not criminal offences as define by law. Proof beyond reasonable doubt is not required, what is
required is substantial evidence only.

SC said that the testimonies of the brothers were clear and convincing. It affirmed the factual findings of
the appellate court. Reason for the abduction is that they were suspected NPA. The participarion of Gen.
Palparan was proved as well as the participation of Helario.

Why did the SC granted the writ, when they were already free? SC said that Amparo includes treat to life,
liberty and security. Even if the Manalo Brothers are free, there is a continuing treat that they will be
abducted and tortured again.

Moncopa vs. Enrile – he was already release by the military but required to report every week to
the military camp. The SC granted Habeas Corpus because there was undue restriction of his
movement.

As the movement continued to be restricted for fear that people they are named in their judicial affidavits
testified against are still at large, and not been held accountable in any way, Amparo should be granted.
This people are directly connected with the AFP and are thus in the position to threaten the Manalo’s right
to life, liberty and security. They claim that they are under threat and once again abducted, keep captive
and even killed which constitute a direct violation to their right to life, liberty and security of person. The
right security is a guaranty to a secured quality of life. Right to security would yield to the exercise of this
right

 To be secured of freedom from fear. (freedom from fear is the right to be free from threat)

 Bodily and psychological integrity or security

 Protection of once life by government

The SC determined that there was a continuing violation of the right of the Manalo brothers because there
was violation of the right from security from freedom of fear to threat in their life, liberty and security.
There is also violation of the protection by the government. Here the SC also granted the production and
inspection orders.

Jason Aquino

Articles of war govern arrest and confinement of military personnel. In habeas corpus does not make a
thorough investigation is not required before charges can be filed against a person subject to military law.
Habeas corpus is not available in the allege military confinement in a maximum security detention. The
conditions of Major Aquino’s confinement is not a proper subject of a writ of habeas corpus because they
are govern by their own law the articles of war.

Federation vs. Libi

Reversion - a proceeding by which the state seeks to the return of land to the public domain or the
improvement thereon through the cancellation of private title erroneously or fraudulently issued over it.
Must be instituted in the name of the state. Intervention by a private person even a lessee is not allowed.
The only party is the government and the holder of the title.

Rodriquez vs. Villanueva

For habeas corpus, the restrain of liberty should be in the nature of illegal and involuntary deprivation of
freedom.
Vilma Tan vs. Hon. Francisco Gedorio

The order of preference in the administration of the property does not apply to the selection of a special
administrator. The only remedy against the appointment of a special administrator is certiorari (Rule 65).

Reyes vs. Enriquez

A person must first institute a special proceeding to determine his status as an heir before he can file an
ordinary civil action to nullify certain instrument pertaining to property of the decedent. A declaration of
heirship is improper in an ordinary civil action since the matter is within the court in a special proceeding.

Kho vs. Rosario

Selection or removal of special administrator is not govern by the rules regarding the removal of a regular
administrator.