Remedial Law: Special Proceedings Herrera Abridged

SPECIAL PROCEEDINGS GENERAL PROVISION RULE 72 SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES Sec. 1. Subject matter of special proceedings. - Rules ! s"ec#$l "% cee&#'(s $%e "% )#&e& ! % #' *+e ! ll ,#'( c$ses(a) Settlement of estate of deceased persons; (b) Escheat; (c) Guardianship and custody of children; (d) Trustees; (e) Adoption; (f) Rescission and revocation of adoption; (g) .ospitalization of insane persons; (h) .abeas corpus; (i) Change of name; (j) Voluntary dissolution of corporations; (k) Judicial approval of voluntary recognition of minor natural children; (l) Constitution of family home; (m) Declaration of absence and death; (n) Cancellation or correction of entries in the civil registry. Sec. 2. Applicability of rules of civil actions. - I' *+e $/se'ce ! s"ec#$l "% )#s# 's0 *+e %ules "% )#&e& ! % #' %&#'$%1 $c*# 's s+$ll /e0 $s !$% $s "%$c*#c$/le0 $""l#c$/le #' s"ec#$l "% cee&#'(s. Action: a formal demand of ones right in a court of justice in the manner prescribed by the court or by the la . !pecial proceeding; an application or proceeding to establish the status or right of a party or a particular fact. "numeration in !ection # is not e$clusive. %etition for li&uidation of an insolvent corporation is a special proceeding because it seeks a declaration by the trial court of the corporations insolvency so that its creditors may be able to file their claims in the settlement of the corporations debts and obligations. 'ultiple appeals are also allo ed here.

(ases covered by the )nterim *ules of )ntra+corporate controversies are ordinary civil actions. (orporate recovery, petition for rehabilitation is also a special proceeding because it sought to establish the inability of the corporate debtor to pay its debts hen they fall due. Action for reconveyance is an ordinary civil action here matters relating to settlement of estate cannot be adjudicated. Arbitration under a contract or submission is also a special proceedings. !pecial proceedings under A-* la : recognition and enforcement of an arbitration agreement or for vacation, setting aside, correction or modification of an arbitral a ard, application ith a court for arbitration assistance and supervision.

SETTLEMENT OF ESTATE OF DECEASED PERSONS RULE 72 VENUE AND PROCESSES Sec. 1. Where estate of deceased person settled. - I! *+e &ece&e'* #s $' #'+$/#*$'* ! *+e P+#l#""#'es $* *+e *#3e ! +#s &e$*+0 ,+e*+e% $ c#*#4e' % $' $l#e'0 +#s ,#ll s+$ll /e "% )e&0 % le**e%s ! $&3#'#s*%$*# ' (%$'*e&0 $'& +#s es*$*e se**le&0 #' *+e C u%* ! F#%s* I's*$'ce #' *+e "% )#'ce #' ,+#c+ +e %es#&es $* *+e *#3e ! +#s &e$*+0 $'& #! +e #s $' #'+$/#*$'* ! $ ! %e#(' c u'*%10 *+e C u%* ! F#%s* I's*$'ce ! $'1 "% )#'ce #' ,+#c+ +e +$& es*$*e. T+e c u%* !#%s*

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

*$6#'( c ('#4$'ce ! *+e se**le3e'* ! *+e es*$*e ! $ &ece&e'*0 s+$ll e7e%c#se 8u%#s&#c*# ' * *+e e7clus# ' ! $ll *+e% c u%*s. T+e 8u%#s&#c*# ' $ssu3e& /1 $ c u%*0 s !$% $s #* &e"e'&s ' *+e "l$ce ! %es#&e'ce ! *+e &ece&e'*0 % ! *+e l c$*# ' ! +#s es*$*e0 s+$ll ' * /e c '*es*e& #' $ su#* % "% cee&#'(0 e7ce"* #' $' $""e$l !% 3 *+$* c u%*0 #' *+e %#(#'$l c$se0 % ,+e' *+e ,$'* ! 8u%#s&#c*# ' $""e$%s ' *+e %ec %&. !pecial proceeding for the settlement of estate of deceased: .estate+ ith ill )ntestate+ no ill

%robate of ill is mandatory and so it takes precedence over intestate. )f in the course of intestate, a ill has been found out, probate should replace the intestate even if an administrator has already been appointed; intestate case should be consolidated ith the testate proceeding and the judge assigned to the testate should continue hearing the t o cases. '.( shall e$ercise e$clusive jurisdiction over probate proceedings, testate or intestate value of the estate does not e$ceed %/00,000. here the

*ule prescribing the court here the decedents estate shall be settled at the place of residence of the deceased is not an element of jurisdiction over the subject matter but merely of venue. *esidence+ actual or physical habitation of a person, not legal domicile, but must be more than temporary.

(overage of probate jurisdiction !ettlement of estate %robate of ills of deceased persons Appointment and removal of administrators and e$ecutors !elling and mortgaging or encumbering realty 1urisdiction of probate court is limited, special and e$clusive and does not e$tend to the determination of &uestions of o nership that arise during the proceedings. .he court may pass upon the title for the purpose of determining hether the same should or should not be included in the inventory but it is not conclusive and is still subject to final decision in a separate action. .he approval of the probate court of the conditional sale is not a conclusive determination of the intrinsic or e$trinsic validity of the conditional sale but a mere recognition of the right of an heir to dispose of her rights and interest over her inheritance even before partition. .he purchaser of property under administration is forced intervenor in the intestate proceeding and should ans er the amended petition for the annulment of the sale. 2rder of the probate court hich has the effect of depriving a lessee of part of the estate ihout the lease contract having been terminated or annulled in a separate action instituted for that purpose is null and void. .he rule that the court first taking cognizance of the settlement of the estate of the deceased, shall e$ercise jurisdiction to the e$clusion of all other court applies to both testate and intestate proceedings. (laims for title to, or right of possession of, personal or real property, made by the heirs themselves, by title adverse to that of the deceased, or made by third persons, cannot be entertained by the probate court. -etermination of the &uestions of title to the subject properties in the probate court is merely provisional, and petitioners are not barred from instituting the appropriate action. "$ception: %robate court has jurisdiction to resolve the issue of o nership hen the parties interested are all heirs of the ceased and they submitted the &uestion of title to the property, ithout prejudice to third persons. An order to include properties in the inventory is merely provisional and interlocutory.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

A judicial declaration that a certain person is the only heir of the decedent is e$clusively ithin the range of the administration proceedings and cannot properly be made an independent action. Application of attorneys fees may be made before and passed upon by the probate court in the same proceedings here attorneys services ere rendered.

Sec. 2. Where estate settled upon dissolution of marriage. - 9+e' *+e 3$%%#$(e #s &#ss l)e& /1 *+e &e$*+ ! *+e +us/$'& % ,#!e0 *+e c 33u'#*1 "% "e%*1 s+$ll /e #')e'* %#e&0 $&3#'#s*e%e&0 $'& l#:u#&$*e&0 $'& *+e &e/*s *+e%e ! "$#&0 #' *+e *es*$*e % #'*es*$*e "% cee&#'(s ! *+e &ece$se& s" use. I! / *+ s" uses +$)e &#e&0 *+e c '8u($l "$%*'e%s+#" s+$ll /e l#:u#&$*e& #' *+e *es*$*e % #'*es*$*e "% cee&#'(s ! e#*+e%. )n the settlement proceedings of the estate of the deceased spouse, the entire conjugal partnership property of the marriage and not just the one+half portion belonging to the deceased is under administration.

Sec. 2. Process. - I' *+e e7e%c#se ! "% /$*e 8u%#s&#c*# '0 C u%* ! F#%s* I's*$'ce 3$1 #ssue ,$%%$'*s $'& "% cesses 'ecess$%1 * c 3"el *+e $**e'&$'ce ! ,#*'esses % * c$%%1 #'* e!!ec* *+e#% %&e%s $'& 8u&(3e'*s0 $'& $ll *+e% " ,e%s (%$'*e& *+e3 /1 l$,. I! $ "e%s ' & es ' * "e%! %3 $' %&e% ! 8u&(3e'* %e'&e%e& /1 $ c u%* #' *+e e7e%c#se ! #*s "% /$*e 8u%#s&#c*# '0 #* 3$1 #ssue $ ,$%%$'* ! % *+e $""%e+e's# ' $'& #3"%#s '3e'* ! suc+ "e%s ' u'*#l +e "e%! %3s suc+ %&e% % 8u&(3e'*0 % #s %ele$se&. Sec. ;. Presumption of death. - F % "u%" ses ! se**le3e'* ! +#s es*$*e0 $ "e%s ' s+$ll /e "%esu3e& &e$& #! $/se'* $'& u'+e$%& !% 3 ! % *+e "e%# &s !#7e& #' *+e C#)#l C &e. Bu* #! suc+ "e%s ' "% )es * /e $l#)e0 +e s+$ll /e e'*#*le& * *+e /$l$'ce ! +#s es*$*e $!*e% "$13e'* ! $ll +#s &e/*s. T+e /$l$'ce 3$1 /e %ec )e%e& /1 3 *# ' #' *+e s$3e "% cee&#'(.

3o independent action for declaration of presumption of death. !( rule that here due to circumstances a person as already considered as dead for the period to e$pire and be presumed dead. RULE 7; SUMMARY SETTLEMENT OF ESTATES

ithout

aiting

Sec. 1. Extrajudicial settlement by agreement between heirs. - I! *+e decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds0 $'& s+ ul& *+e1 &#s$(%ee0 *+e1 3$1 & s #' $' %&#'$%1 $c*# ' ! "$%*#*# '. I! *+e%e #s 'l1 'e +e#%0 +e 3$1 $&8u&#c$*e * +#3sel! *+e e'*#%e es*$*e /1 3e$'s ! $' $!!#&$)#* !#le& #' *+e !!#ce ! *+e %e(#s*e% ! &ee&s. T+e "$%*#es * $' e7*%$8u&#c#$l se**le3e'*0 ,+e*+e% /1 "u/l#c #'s*%u3e'* % /1 s*#"ul$*# ' #' $ "e'&#'( $c*# ' ! % "$%*#*# '0 % *+e s le +e#% ,+ $&8u&#c$*es *+e e'*#%e es*$*e * +#3sel! /1 3e$'s ! $' $!!#&$)#* s+$ll !#le0 s#3ul*$'e usl1 ,#*+ $'& $s $ c '&#*# ' "%ece&e'* * *+e !#l#'( ! *+e "u/l#c #'s*%u3e'*0 % s*#"ul$*# ' #' *+e $c*# ' ! % "$%*#*# '0 % ! *+e $!!#&$)#* #' *+e !!#ce ! *+e %e(#s*e% ! &ee&s0 a bond ,#*+ *+e said register of deeds, in an amount e&uivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under !ection ; ! *+#s %ule. t shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two !"# years after the death of the decedent. T+e !$c* ! *+e e7*%$8u&#c#$l se**le3e'* % $&3#'#s*%$*# ' s+$ll /e "u/l#s+e& #' $ 'e,s"$"e% ! (e'e%$l c#%cul$*# ' #' *+e 3$''e% "% )#&e& #' *+e 'e7* succee&#'( sec*# '< /u* ' e7*%$8u&#c#$l se**le3e'* s+$ll /e /#'&#'( u" ' $'1 "e%s ' ,+ +$s ' * "$%*#c#"$*e& *+e%e#' % +$& ' ' *#ce *+e%e !. 4hen all the heirs are of la ful age and there are no debts due from the estate, they may agree in riting to partition the property ithout instituting the judicial administration or applying for the appointment of an administrator. -ifferent modes of settlement of the estate of the deceased:

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

"$trajudicial settlement of estate; %artition !ummary settlement of estates of small value %robate of ill %etition for letters administration in cases of intestacy. %artition although oral is valid and binding. .he re&uirement that a partition be put in a public document and registered has for its purpose the protection of creditors and at the same time the protection of the heirs themselves against tardy claim; serves as a constructive notice. .he intrinsic validity of partition not e$ecuted ith the prescribed formalities does not come into play hen there are no creditors or the rights of the creditors are not affected. %artition among heirs or renunciation of an inheritance by some of them is not e$actly a conveyance of real property for the reason that it does not involve transfer of property from one to the other, but rather a confirmation or ratification of title or right of property by the heir renouncing in favor or another heir accepting and receiving the inheritance. 5eirs cannot divest court of its already ac&uired jurisdiction by the fact of dividing the distributing e$trajudicially the estate of the deceased among themselves. )f the e$trajudicial partition made by the heirs is submitted to the court and approved after verification that it does not prejudice the rights of third parties, the testate proceedings pending ould have been legally terminated. An e$trajudicial partition of the estate of a deceased by the heirs become a judicial partition after the approval by the court hich had previously ac&uired jurisdiction of the estate, but as the testate proceedings is terminated in such case ithout the necessary publication of notice to creditors and other persons interested in the estate re&uired in a regular judicial administration, the effects of such judicial partition ould be the same as if it had been effected e$trajudicially ithout the intervention of the court and is still subject to claims against distributes.

Sec. 2. Summary settlement of estates of small value. - 9+e'e)e% *+e gross value ! *+e es*$*e ! $ &ece$se& "e%s '0 hether he died testate or intestate, does not e$ceed ten thousand pesos 0 $'& *+$* !$c* #s 3$&e * $""e$% * *+e C u%* ! F#%s* I's*$'ce +$)#'( 8u%#s&#c*# ' ! *+e es*$*e /1 *+e "e*#*# ' ! $' #'*e%es*e& "e%s ' $'& u" ' +e$%#'(0 ,+#c+ s+$ll /e +el& not less than (#) month nor more than three (/) months from the date of the last publication of a notice hich shall be published once a eek for three (/) consecutive eeks in a ne spaper of general circulation in the province, $'& $!*e% suc+ *+e% ' *#ce * #'*e%es*e& "e%s 's $s *+e c u%* 3$1 &#%ec*, the court may proceed summarily, without the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of the will, if any there be, to determine who are the persons legally entitled to participate in the estate, and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due; and such persons, in their own right, if they are of lawful age and legal capacity, % /1 *+e#% (u$%&#$'s % *%us*ees le($ll1 $"" #'*e& $'& :u$l#!#e&0 #! *+e%,#se0 s+$ll *+e%eu" ' be entitled to receive and enter into the possession of the portions of the estate so a arded to them respectively. T+e c u%* s+$ll 3$6e suc+ %&e% $s 3$1 /e 8us* %es"ec*#'( *+e c s*s ! *+e "% cee&#'(s0 $'& $ll %&e%s $'& 8u&(3e'*s 3$&e % %e'&e%e& #' *+e c u%se *+e%e ! shall be recorded in the office of the clerk, and the order of partition or a ard, if it involves real estate, shall be recorded in the proper register6s office. '.( shall have the probate jurisdiction ''. here the value of the estate does not e$ceed %/007 or %8007 in

Sec. 2. $ond to be filed by distributees. - T+e c u%*0 before allowing a partition #' $cc %&$'ce ,#*+ *+e "% )#s# 's ! *+e "%ece&#'( sec*# '0 3$1 re&uire the distributees, if property other than real is to be distributed, to file a bond in an amount to be fi$ed by court, conditioned for the payment of any just claim ,+#c+ 3$1 /e !#le& u'&e% *+e 'e7* succee&#'( sec*# '. Sec. ;. %iability of distributees and estate. - I! #* s+$ll $""e$% $* any time ithin t o (9) years after the settlement and distribution of an estate #' $cc %&$'ce ,#*+ *+e "% )#s# 's ! e#*+e% ! *+e !#%s* *, sec*# 's ! *+#s %ule0 that an heir or other person has been unduly deprived of his la ful participation in the estate, such heir or such other person may compel the settlement of the estate in the courts #' *+e 3$''e% +e%e#'$!*e% "% )#&e& ! % *+e "u%" se ! s$*#s!1#'( suc+ l$,!ul "$%*#c#"$*# '. A'& #! ithin the same time of t o (9) years, it shall appear that there are debts outstanding against the estate hich have not been paid, or that an heir or other person has been unduly deprived of his la ful participation payable in money, the court having jurisdiction of the estate may, by order for that purpose, after hearing, se**le *+e $3 u'* ! suc+ &e/*s % l$,!ul "$%*#c#"$*# ' and order how much and in what manner each distributee shall contribute in the payment thereof& an& may issue e$ecution, if circumstances re&uire, against the bond provided in the preceding section or against the real estate /el '(#'( * *+e &ece$se&0 % / *+. Suc+ / '& $'& suc+ %e$l es*$*e s+$ll

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

%e3$#' c+$%(e& ,#*+ $ l#$/#l#*1 * c%e&#* %s0 +e#%s0 % *+e% "e%s 's ! % *+e !ull period of t o (9) years after such distribution, not ithstanding any transfers of real estate that may have been made.

.he provisions barring distributes or heirs from objecting to an e$tra+judicial partition after the e$piration of t o years from such e$trajudicial partition is applicable only to:

%ersons ho have participated or taken part or had notice of the e$trajudicial partition, and 4hen all the persons or heirs of the decedent have taken part in the e$trajudicial settlement or are represented by themselves through guardians. !ection 8 is only a bar against the parties ho had taken part in the e$trajudicial proceedings, but not against third persons not parties thereto. An action for reconveyance of real property on the ground of fraud must be filed ithin 8 years from the discovery of fraud. !uch discovery is deemed to have taken place from the issuance of the certificates of title. An action for reconveyance based on a implied or constructive trust prescribes in ten years from the date of the registration of the deed or the issuance of the title. An action for rescission is also the proper action in case of an alleged preterition of a compulsory heir by reason of alleged bad faith or fraud of the other persons interested. 4hen the plaintiff is in possession of the land to be reconveyed, prescription cannot be invoked in an action for reconveyance. .he court permitted the filing of an action for reconveyance despite the lapse of ten years and declared that said action, hen based on fraud, is imprescriptible as long as the land has not passed to an innocent purchaser for value. .his is for the reason that registration proceedings should not be used as a shield for fraud enriching a person at the e$pense of the other.

Sec. =. Period for claim of minor or incapacitated person. - I! ' *+e date of the e$piration of the period of t o (9) years prescribed in the preceding section the person authorized to file a claim #s $ minor or mentally incapacitated& or is in prison or outside the Philippines, he may present his claim ithin one (#) year after such disability is removed.

RULE 7= PRODUCTION OF 9ILL< ALLO9ANCE OF 9ILL NECESSARY Sec. 1. Allowances necessary' (onclusive as to execution. - N ,#ll s+$ll "$ss e#*+e% %e$l "e%s '$l es*$*e u'less #* #s "% )e& $'& $ll ,e& #' *+e "% "e% c u%*. Su/8ec* * *+e %#(+* $""e$l0 suc+ $ll ,$'ce ! *+e ,#ll s+$ll /e c 'clus#)e $s * #*s &ue e7ecu*# '. .here can be no valid partition among the heirs until after the ill has been probated. % !

:*: (ourts authority in probate proceedings are limited only to passing upon the e$trinsic validity of the ill sought to be probated, the due e$ecution thereof, the testators testamentary capacity and the compliance ith the re&uisites or solemnities prescribed by la . .he &uestion of intrinsic validity of a been duly authenticated. is e$trinsic validity determined: ill comes only after the court has declared that the ill has

5o

!ubstantial compliance is sufficient; ;ormal imperfections may be brushed aside

hen they do no affect its purpose.

"$ception: %robate court may pass upon intrinsic validity under the principle of practical considerations. 4here practical considerations and circumstances demand that intrinsic validity of testamentary provisions be passed upon before the e$trinsic validity of the ill be resolved, the probate court should meet the issue. "$ception cannot be applied here meat of the controversy is not intrinsic validity.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

4here the probate court acted in e$cess of its jurisdiction, the same may be corrected by certiorari. And even assuming the e$istence of the remedy of appeal, e hearken to the rule that in the broader interest of justice, a petition for certiorari may be entertained here appeal ould not afford speedy and ade&uate relief. .he probate court may only disregard passing on the e$trinsic invalidity of the intrinsic invalidity is apparent on the face of the ill. ill here the

-ecree of probate is conclusive ith respect to the due e$ecution of the ill and it cannot be impugned on any grounds authorized by la , e$cept that of fraud in any separate or independent action or proceedings.

Sec. 2. (ustodian of will to deliver. - T+e "e%s ' ,+ +$s custody of a ill s+$ll0 ithin t enty (90) days after he kno s of the death of the testator, deliver the ill to the court having jurisdiction0 % * *+e e7ecu* % '$3e& #' *+e ,#ll. ;ailure to attach original of ill to petition is not critical here not necessary to attach original ill to petition for probate. ill itself as adduced in evidence,

Sec. 2. Executor to present will and accept or refuse trust. - A "e%s ' '$3e& $s e7ecu* % #' $ ,#ll s+$ll0 ,#*+#' t enty (90) days after he kno s of the death of the testator, or ithin t enty (90) days after kno s that he is named e$ecutor if he obtained such kno ledge after the death of the testator, present such ill to the court having jurisdiction, u'less *+e ,#ll +$s %e$c+e& *+e c u%* #' $'1 *+e% 3$''e%0 $'& s+$ll0 ,#*+#' suc+ "e%# &0 s#('#!1 * *+e c u%* #' ,%#*#'( +#s $cce"*$'ce ! *+e *%us* % +#s %e!us$l * $cce"* #*. Sec. ;. (ustodian and executor subject to fine for neglect. - A person ho neglects any of the duties re&uired in the t o last preceding sections ithout e$cuse satisfactory to the court shall be fined not e$ceeding t o thousand pesos. Sec. =. Person retaining will may be committed. - A "e%s ' +$)#'( custody of a ill after the death of the testator ho neglects ithout reasonable cause to deliver the same, hen ordered so to do, to the court having jurisdiction, may be committed to prison $'& *+e%e 6e"* u'*#l +e &el#)e%s *+e ,#ll.

RULE 7> ALLO9ANCE OR DISALLO9ANCE OF 9ILL Sec. 1. Who may petition for the allowance of will. - A'1 e7ecu* %0 &e)#see0 % le($*ee '$3e& #' $ ,#ll0 % $'1 *+e% "e%s ' #'*e%es*e& #' *+e es*$*e0 3$10 $* $'1 *#3e $!*e% *+e &e$*+ ! *+e *es*$* %0 "e*#*# ' *+e c u%* +$)#'( 8u%#s&#c*# ' * +$)e *+e ,#ll $ll ,e&0 ,+e*+e% *+e s$3e /e #' +#s " ssess# ' % ' *0 % #s l s* % &es*% 1e&. T+e *es*$* % +#3sel! 3$10 &u%#'( +#s l#!e*#3e0 "e*#*# ' *+e c u%* ! % *+e $ll ,$'ce )nterested party: one ho ould be benefitted by the estate such as an heir or one against the estate like a creditor. 2ne ho is only indirectly interested in a ill may not interfere in its probate. 5o jurisdiction is ac&uired: ! +#s ,#ll. ho has claim

a. Attaching a mere copy of ill sufficient: anne$ing of the original ill to the petition is not a jurisdictional re&uirement. .his is ithout prejudice to producing the original thereof at the hearing or hen the court so re&uires. b. -elivery of ill sufficient even if no petition is filed: the court could motu proprio take steps to fi$ the time and place for proving the ill and issue corresponding notices. c. <pon filing of the original petition under !ecs / and 8. Sec. 2. (ontents of petition. - A "e*#*# ' ! % *+e $ll ,$'ce * *+e "e*#*# 'e%?a) .he jurisdictional facts; (b) .he names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; ! $ ,#ll 3us* s+ ,0 s !$% $s 6' ,'

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

(c) .he probable value and character of the property of the estate; (d) .he name of the person for (e) )f the hom letters are prayed;

ill has not been delivered to the court, the name of the person having custody of it. ill, % *+e #ssu$'ce ! le**e%s

=ut no defect in the petition shall render void the allo ance of the *es*$3e'*$%1 % ! $&3#'#s*%$*# ' ,#*+ *+e ,#ll $''e7e&.

1urisdictional facts in probate: death of the decedent; his residence at the time of his death in the province of here the probate court is sitting; if he is an inhabitant of a foreign country, in the province here he left his estate.

Sec. 2. (ourt to appoint time for proving will. - N *#ce *+e%e ! * /e "u/l#s+e&. 4hen a ill is delivered to, or a petition for the allo ance of a ill is filed in, the court having jurisdiction, such court shall fi$ a time and place for proving the ill hen all concerned may appear to contest the allo ance thereof 0 $'& s+$ll c$use ' *#ce ! suc+ *#3e $'& "l$ce * be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province Bu* ' 'e,s"$"e% "u/l#c$*# ' s+$ll /e 3$&e ,+e%e *+e "e*#*# ' ! % "% /$*e +$s /ee' !#le& /1 *+e *es*$* % +#3sel!. .he notice by publication as a prere&uisite to the allo ance of a ill is a constructive notice to the hole orld, and hen probate is granted the judgment is binding upon everybody, even against the !tate. .he probate of a ill having jurisdiction thereof is conclusive as to its due e$ecution and validity. %robate court must cause notice through publication for the petition after receiving the same other ise the proceeding for settlement of the estate is void and should be annulled.

Sec. ;. )eirs& devisees& legatees& and executors to be notified by mail or personally. - T+e c u%* s+$ll $ls c$use c "#es ! *+e ' *#ce ! *+e *#3e $'& "l$ce !#7e& ! % "% )#'( *+e ,#ll * be addressed to the designated or other kno n heirs, legatees, and devisees of the testator resident in the %hilippines at their places of residence, $'& deposited in the post office with the postage thereon prepaid at least twenty !"*# days before the hearing& if such places of residence be +nown. A copy of the notice must in like manner be mailed to the person named as e$ecutor, if he be not be petitioner; also, to any person named as co+e$ecutor not petitioning, if their places of residence be kno n. %ersonal service of copies of the notice at least ten (#0) days before the day of hearing shall be e&uivalent to mailing. I! *+e *es*$* % $s6s ! % *+e $ll ,$'ce c 3"uls %1 +e#%s. ! +#s ,' ,#ll0 ' *#ce s+$ll /e se'* 'l1 * +#s

.he re&uirement of the la for the allo ance of ill as not satisfied by mere publication of notice of hearing because notice of hearing to the designated hers, legatees and devisees is re&uired. (by mail or personally)

Sec. =. Proof at hearing. - 9+$* su!!#c#e'* #' $/se'ce ! c '*es*. A* the hearing compliance ith the provisions of the last t o preceding sections must be sho n before the introduction of testimony in support of the ill. All suc+ *es*#3 '1 s+$ll /e *$6e' u'&e% $*+ $'& %e&uce& * ,%#*#'(. I! ' "e%s ' $""e$%s * c '*es* *+e $ll ,$'ce ! *+e ,#ll0 *+e c u%* 3$1 (%$'* $ll ,$'ce *+e%e ! ' *+e *es*#3 '1 ! 'e ! *+e su/sc%#/#'( ,#*'esses 'l10 #! suc+ ,#*'ess *es*#!1 *+$* *+e ,#ll ,$s e7ecu*e& $s #s %e:u#%e& /1 l$,. I' *+e c$se ! $ holographic ill, it shall be necessary that at least one itness ho kno s the hand riting and signature of the testator e$plicitly declare that the ill and the signature are in the hand riting of the testator. )n the absence of any such competent ,#*'ess0 $'& #! *+e c u%* &ee3 #* 'ecess$%10 e7"e%* *es*#3 '1 3$1 /e %es %*e& * . Sec. >. Proof of lost or destroyed will. - Ce%*#!#c$*e *+e%eu" '. N ,#ll s+$ll /e "% )e& $s $ l s* % &es*% 1e& ,#ll unless the e$ecution and validity of the same be established, and the ill is proved to have been in e$istence at the time of death of the testator, or is sho n to have been fraudulently or

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

accidentally destroyed in the lifetime of the testator ithout his kno ledge, nor unless its provisions are clearly and distinctly proved by at least t o (9) credible itnesses. 9+e' $ l s* ,#ll #s "% )e&0 *+e "% )#s# 's *+e%e ! 3us* /e &#s*#'c*l1 stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other ills are filed and recorded. / ;acts should be proved to allo lost ill:

.hat the ill has been duly e$ecuted by the testator .hat the ill as in e$istence hen the testator died, or if it as note, that it has been fraudulently or accidentally destroyed in the lifetime of the testator ithout his kno ledge; .hat the provisions of the ill are clearly established by at least 9 credible itnesses. Sec. 7. Proof when witnesses do not reside in province. - I! #* $""e$%s $* *+e *#3e !#7e& ! % *+e +e$%#'( *+$* ' 'e ! *+e su/sc%#/#'( ,#*'esses %es#&es #' *+e "% )#'ce0 /u* *+$* *+e &e" s#*# ' ! 'e % 3 %e ! *+e3 c$' /e *$6e' else,+e%e0 *+e c u%* 3$10 ' 3 *# '0 &#%ec* #* * /e *$6e'0 $'& 3$1 $u*+ %#4e $ "+ * (%$"+#c c "1 ! *+e ,#ll * /e 3$&e $'& * /e "%ese'*e& * *+e ,#*'ess ' +#s e7$3#'$*# '0 ,+ 3$1 /e $s6e& *+e s$3e :ues*# 's ,#*+ %es"ec* * #*0 $'& * *+e +$'&,%#*#'( ! *+e *es*$* % $'& *+e%s0 $s , ul& /e "e%*#'e'* $'& c 3"e*e'* #! *+e %#(#'$l ,#ll ,e%e "%ese'*. Sec. @. Proof when witnesses dead or insane or do not reside in the Philippines. - I! #* $""e$%s $* *+e *#3e !#7e& ! % *+e +e$%#'( *+$* *+e su/sc%#/#'( ,#*'esses $%e &e$& % #'s$'e0 % *+$* ' 'e ! *+e3 %es#&es #' *+e P+#l#""#'es0 *+e c u%* 3$1 $&3#* *+e *es*#3 '1 ! *+e% ,#*'esses * "% )e *+e s$'#*1 ! *+e *es*$* %0 $'& *+e &ue e7ecu*# ' ! *+e ,#ll< $'& $s e)#&e'ce ! *+e e7ecu*# ' ! *+e ,#ll0 #* 3$1 $&3#* "% ! ! *+e +$'&,%#*#'( ! *+e *es*$* % $'& ! *+e su/sc%#/#'( ,#*'esses0 % ! $'1 ! *+e3. .he failure of the itness to identify his signature does not bar probate. .he test hether a itness to a ill is deemed to have signed in the presence of each other is not hether a itness did see the signing of the ill but hether he as in a position to see if he chose to do so. .he statement of a competent attorney charged ith responsibility of seeing to the proper e$ecution of the instrument is entitled to greater eight than the testimony of a person casually called to participate in the act. ! *+e ! ll ,#'( c$ses-

Sec. A. ,rounds for disallowing will. - T+e ,#ll s+$ll /e &#s$ll ,e& #' $'1 ?$B I! not e$ecuted and attested as re&uired by la < ?/B I! *+e *es*$* % ,$s insane, or other ise mentally incapable to make a e$ecution< ?cB I! #* ,$s e7ecu*e& under duress, or the influence of fear, or threats<

ill, at the time of its

?&B I! #* ,$s "% cu%e& /1 undue and improper pressure and influence, on the part of the beneficiary0 ! s 3e *+e% "e%s ' ! % +#s /e'e!#*<

?eB I! *+e signature of the testator as procured by fraud or trick,> (by mistake) and he did not intend that the instrument should be his ill at the time of fi$ing his signature *+e%e* . ? c 's*#*u*es 2 (% u'&s #' CCB

)t is sufficient if the holographic ill is really dated, although the date is not in its usual place. .he only re&uirement are the date be in the ill itself and e$ecuted in the hand of the testator. !ubstantial (ompliance *ule: )f the ill has been e$ecuted in substantial compliance ith the formalities of the la , and the possibility of bad faith and fraud is obviated, said ill should not be admitted to probate. .he ground for disallo ance is e$clusive. 2nly issues to be resolved in a petition to admit a holographic ill to probate are:

4hether the instrument submitted is the decedents last ill and testament; 4hether the said ill as e$ecuted in accordance ith the formalities prescribed by la ; N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged 4hether the decedent had the necessary testamentary capacity at the time the ill as e$ecuted; 4hether the e$ecution of the ill and its signing ere the voluntary acts of the decedent.
;ormalities of non+holographic ills include the subscription, attestation and ackno ledgement re&uirement. )n case of holographic ills, hat ensures authenticity is the re&uirement that they be totally autographic or hand ritten by the testator himself. ;ailure to sign and date some of the dispositions ill not effectuate the same, but ill not render the hole testament void. ?ack of authentication ill only result in disallo ance of such changes. !ubstantial compliance is acceptable here the purpose of the la has been satisfied, the reason being that the solemnities surrounding the e$ecution of ill are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and fle$ible as to destroy the testamentary privilege. !eparate ills containing similar provisions may be probated jointly. 4hat the la prohibits is the making of joint ill either for the testators reciprocal benefit or for the benefit of a third person.

Sec. 1C. (ontestant to file grounds of contest. - A'1 'e $""e$%#'( * c '*es* *+e ,#ll 3us* s*$*e #' ,%#*#'( +#s (% u'&s ! % "" s#'( #*s $ll ,$'ce0 $'& se%)e $ c "1 *+e%e ! ' *+e "e*#*# 'e% $'& *+e% "$%*#es #'*e%es*e& #' *+e es*$*e. Sec. 11. Subscribing witnesses produced or accounted for where will contested. - I! *+e ,#ll #s c '*es*e&0 all the subscribing itnesses, and the notary in the case of ills e$ecuted under the (ivil (ode of the %hilippines, if present in the %hilippines and not insane, must be produced and e$amined, and the death, absence, or insanity of any of them must be satisfactory sho n to the court. I! $ll % s 3e ! suc+ ,#*'esses $%e "%ese'* #' *+e P+#l#""#'es /u* u*s#&e *+e "% )#'ce ,+e%e *+e ,#ll +$s /ee' !#le&0 *+e#% &e" s#*# ' 3us* /e *$6e'. f any or all of them testify against the due execution of the will& or do not remember having attested to it& or are otherwise of doubtful credibility& the will may& nevertheless& be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner re-uired by law. )f a holographic ill is contested, the same shall be allo ed if at least three (/) itnesses ho kno the hand riting of the testator e$plicitly declare that the ill and the signature are in the hand riting of the testator; in the absence of any competent itness, $'& #! *+e c u%* &ee3 #* 'ecess$%10 e7"e%* *es*#3 '1 3$1 /e %es %*e& * . 4hen the authenticity of the three itnesses re&uired. ill is not being &uestioned, there is no necessity of presenting the

Sec. 12. Proof where testator petitions for allowance of holographic will. - 4here the testator himself petitions for the probate of his holographic ill and no contest in filed, the fact that he affirms that the holographic ill and the signature are in his o n hand riting, shall be sufficient evidence of the genuineness and due e$ecution thereof. I! *+e + l (%$"+#c ,#ll #s c '*es*e&0 *+e /u%&e' ! &#s"% )#'( *+e (e'u#'e'ess $'& &ue e7ecu*# ' *+e%e ! s+$ll /e ' *+e c '*es*$'*. T+e *es*$* % 3$10 #' +#s *u%'0 "%ese'* suc+ $&&#*# '$l "% ! $s 3$1 /e 'ecess$%1 * %e/u* *+e e)#&e'ce ! % *+e c '*es*$'*. Sec. 12. (ertificate of allowance attached to proved will. - T /e %ec %&e& #' *+e O!!#ce ! Re(#s*e% ! Dee&s. )f the court is satisfied, upon proof taken and filed, that the ill as duly e$ecuted, and that the testator at the time of its e$ecution as 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. !ttested copies of the will devising real estate and of certificate of allowance thereof, shall be recorded in the register of deeds of the province in which the lands lie

RULE 77 ALLO9ANCE OF 9ILL PROVED OUTSIDE OF P.ILIPPINES AND ADMINISTRATION OF ESTATE T.EREUNDER Sec. 1. Will proved outside Philippines may be allowed here. " 4ills proved and allo ed in a foreign country, according to the la s of such country, may be allo ed, filed, and recorded by the proper (ourt of ;irst )nstance in the %hilippines.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

%roof that both is imperative. ill conform ith the formalities prescribed by the foreign country or %hilippine la s

"vidence necessary for the reprobate of ills probated outside the %hilippines: .he due e$ecution of the ill in accordance ith the foreign la s; .he testator has domicile in the foreign country and not in the %hilippines; .he ill has been admitted to probate in such country; .he la s of a foreign country on procedure and allo ance of ills

Sec. 2. .otice of hearing for allowance. - 9+e' a copy of such ill and of the order or decree of the allo ance thereof, both duly authenticated, are filed ith a petition for allo ance in the %hilippines 0 /1 *+e e7ecu* % % *+e% "e%s ' #'*e%es*e&0 #' *+e c u%* +$)#'( 8u%#s&#c*# '0 suc+ c u%* s+$ll !#7 $ *#3e $'& "l$ce ! % *+e +e$%#'(0 $'& cause notice thereof to be given as in case of an original ill presented for allo ance. .he rule that the court having jurisdiction over the reprobate of a ill shall cause notice thereof to be given as in case of an original ill presented for allo ance means that ith regard to notices, the ill probated abroad should be treated as if it ere an original ill or a ill that is presented for probate for the first time. Sec. 2. When will allowed& and effect thereof. - I! #* $""e$%s $* *+e +e$%#'( *+$* *+e ,#ll s+ ul& /e $ll ,e& #' *+e P+#l#""#'es0 *+e c u%* s+$ll s $ll , #*0 $'& $ certificate of its allo ance, signed by the judge, and attested by the seal of the court, to hich shall be attached a copy of the ill, s+$ll /e filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court. Sec. ;. Estate& how administered. - 9+e' $ ,#ll #s *+us $ll ,e&0 *+e c u%* s+$ll (%$'* le**e%s *es*$3e'*$%10 % le**e%s ! $&3#'#s*%$*# ' ,#*+ *+e ,#ll $''e7e&0 $'& suc+ le**e%s *es*$3e'*$%1 % ! $&3#'#s*%$*# '0 s+$ll e7*e'& * $ll *+e es*$*e ! *+e *es*$* % #' *+e P+#l#""#'es. Suc+ es*$*e0 $!*e% *+e "$13e'* ! 8us* &e/*s $'& e7"e'ses ! $&3#'#s*%$*# '0 s+$ll /e &#s" se& ! $cc %&#'( * suc+ ,#ll0 s !$% $s suc+ ,#ll 3$1 "e%$*e u" ' #*< $'& *+e %es#&ue0 #! $'10 s+$ll /e &#s" se& ! $s #s "% )#&e& /1 l$, #' c$ses ! es*$*es #' *+e P+#l#""#'es /el '(#'( * "e%s 's ,+ $%e #'+$/#*$'*s ! $' *+e% s*$*e % c u'*%1.

:*: Administration e$tends only to the assets of the decedent found ithin the state or county here it as granted so that an administrator appointed in one state or country has no po er over property in another state or country. .he ancillary administration is proper henever a person dies leaving in a 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. RULE 7@ LETTERS TESTAMENTARY AND OF ADMINISTRATION0 9.EN AND TO 9.OM ISSUED

Sec. 1. Who are incompetent to serve as executors or administrators. - N * se%)e $s e7ecu* % % $&3#'#s*%$* % ,+ ?$B Is a minor< ?/B Is not a resident of the %hilippines< $'&

"e%s ' #s c 3"e*e'*

?cB Is #' *+e "#'# ' ! *+e c u%* unfit to e$ecute the duties of the trust by reason of drunkenness, improvidence, or ant of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.

-runkenness: not just mere state of into$ication; that e$cessive, inveterate and continued use of into$icants, to such an e$tent as to render the subject of the habit as unsafe against to entrust ith the care of property or the transaction of business )mprovidence: ant of care and foresight in the management of property hich ould be likely to render the estate and effects of the intestate unsafe and liable to be lost or diminished in value.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged !ymptoms: carelessness, indifference, prodigality,
care management and preservation of property. astefulness or negligence in reference to the

:ambling habits might establish improvidence. 4ant of understanding is a dis&ualification here it amounts to lack of intelligence. 'oral .urpitude: an act of baseness, vileness or depravity in the private and social duties hich a man o es his fello men, to society in general, contrary to the accepted and customary rule of right and duty bet een man and oman or conduct contrary to justice, honesty, modesty or good morals. (ourts are restricted to the cause named and have no authority to refuse to issue letters to a person because his interests are hostile to those of the estate and the legatees under the ill. (onsider also antagonistic interest in the fitness of administrator. )t is important that an administrator should be able to devote his time and mind to the burden of his trust. An administrator does not have to be an heir. 5e can be a stranger to the deceased. ! $' e7ecu* % s+$ll ' *0

Sec. 2. Executor of executor not to administer estate. - T+e e7ecu* % $s suc+0 $&3#'#s*e% *+e es*$*e ! *+e !#%s* *es*$* %.

Sec. 2. /arried women may serve. - A married oman may serve as e$ecutri$ or administratri$, and the marriage of a single oman shall not affect her authority so to serve under a previous appointment. Sec. ;. %etters testamentary issued when will allowed. - 9+e' a ill has been proved and allo ed, the court shall issue letters testamentary thereon to the person named as e$ecutor therein, if he is competent, accepts the trust, and gives bond as re&uired /1 *+ese %ules. Sec. =. Where some coexecutors dis-ualified others may act. - 9+e' 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 them0 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 re&uired by the ill. Sec. >. When and to whom letters of administration granted. - I! ' e7ecu* % #s '$3e& #' *+e ,#ll0 % *+e e7ecu* % % e7ecu* %s $%e #'c 3"e*e'*0 %e!use *+e *%us*0 % !$#l * (#)e / '&0 % $ "e%s ' &#es #'*es*$*e0 $&3#'#s*%$*# ' s+$ll /e (%$'*e&?$B .o the surviving husband or ife, as the case may be, or ne$t of kin, or both, in the discretion of the court, or to such person as such surviving husband or ife, or ne$t of kin, re&uests to have appointed0 #! c 3"e*e'* $'& ,#ll#'( * se%)e< ?/B I! suc+ su%)#)#'( +us/$'& % ,#!e0 $s *+e c$se 3$1 /e0 % 'e7* ! 6#'0 % *+e "e%s ' selec*e& /1 *+e30 /e #'c 3"e*e'* % u',#ll#'(0 % #! *+e +us/$'& % ,#& ,0 % 'e7* ! 6#'0 'e(lec*s ! % *+#%*1 ?2CB &$1s $!*e% *+e &e$*+ ! *+e "e%s ' * $""l1 ! % $&3#'#s*%$*# ' % * %e:ues* *+$* $&3#'#s*%$*# ' /e (%$'*e& * s 3e *+e% "e%s '0 it may be granted to one or more of the principal creditors, if c 3"e*e'* $'& ,#ll#'( * se%)e< ?cB I! *+e%e #s ' suc+ c%e&#* % c 3"e*e'* $'& ,#ll#'( * person as the court may select. se%)e0 it may be granted to such other

2rder of preference: .he underlying assumption behind this rule is that those ho ill reap the benefit of a ise, speedy and economical administration of the estate, or on the other hand, suffer the conse&uences of aste, improvidence, or mismanagement, have the highest interest and most influential motive to administer the estate correctly. 2ne ho has greater interest in the estate is preferred to another ho has less. 'ere failure to apply for letters of administration does not remove preference; /0+day period may be aived. A creditor must present its claim ithin a reasonable time after the death of the decedent in the estate proceedings and if none ere had, to file for petition for letters of administration. (o+administration is allo ed. Appointment of more than one administrator is legally permissible and sanctioned in practice. .he ne$t of kin has been defined as those persons ho are entitled under the statute of distribution to the decedents property.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

.he purpose of having co+administrators is to have the benefit of their judgment and perhaps at all times to have different interests represented, especially considering that in this proceeding they ill respectively represent the legitimate and illegitimate groups of heirs to the estate. )t is proper to command the court belo to appoint a regular administrator, but it is not proper to tell hom to appoint. 4here the order of the court appointing a ne administrator in substitution of the original administrator is pending appeal, and in the absence of any order for the immediate e$ecution of the order of substitution, the old administrator has the right to continue as such until the appeal is finally disposed of. RULE 7A OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION Sec. 1. 0pposition to issuance of letters testamentary' Simultaneous petition for administration. - A'1 "e%s ' #'*e%es*e& #' $ ,#ll 3$1 s*$*e #' ,%#*#'( *+e (% u'&s ,+1 le**e%s *es*$3e'*$%1 s+ ul& ' * #ssue * *+e "e%s 's '$3e& *+e%e#' e7ecu* %s0 % $'1 ! *+e30 $'& *+e c u%*0 $!*e% +e$%#'( u" ' ' *#ce0 s+$ll "$ss u" ' *+e su!!#c#e'c1 ! suc+ (% u'&s. A "e*#*# ' 3$10 $* *+e s$3e *#3e0 /e !#le& ! % le**e%s ! $&3#'#s*%$*# ' ,#*+ *+e ,#ll $''e7e&. Sec. 2. (ontents of petition for letters of administration. - A "e*#*# ' ! % le**e%s ! $&3#'#s*%$*# ' 3us* /e !#le& /1 $' #'*e%es*e& "e%s ' $'& 3us* s+ ,0 s !$% $s 6' ,' * *+e "e*#*# 'e%?$B T+e 8u%#s&#c*# '$l !$c*s< ?/B T+e '$3es0 $(es0 $'& %es#&e'ces c%e&#* %s0 ! *+e &ece&e'* ?cB T+e "% /$/le )$lue $'& c+$%$c*e% ?&B T+e '$3e Bu* ' &e!ec* ! *+e +e#%s0 $'& *+e '$3es $'& %es#&e'ces ! *+e

! *+e "% "e%*1

! *+e es*$*e<

! *+e "e%s ' ! % ,+ 3 le**e%s

! $&3#'#s*%$*# ' $%e "%$1e&. ! le**e%s ! $&3#'#s*%$*# '.

' *+e "e*#*# ' s+$ll %e'&e% ) #& *+e #ssu$'ce

1urisdictional facts: death of the testator; his residence at the time of his death in the province here the probate court is sitting; if he is an inhabitant of a foreign country, his having left his estate in such province.

*e&uirement of earnest compromise to be sho n first before filing suit involving members of the same family is not applicable to special proceedings, the same only applies to civil actions hich are adversarial. ?ack of interest in the estate is e&uated to lack of legal capacity to institute the proceedings. )nterested party: one ho ould be benefited by the estate or one ho has claim against the estate, this interest must be material and direct and not merely indirect or contingent. ;or one to intervene in an estate proceedings, it is a re&uisite that he must be interested in the estate, either as one ho ould be benefited as an heir or one ho has a claim against the estate like a creditor or in the ill or in the property to be affected by it either as e$ecutor or as claimant of the estate. ?ack of interest rule may be barred by estoppel, or here it is not asserted in the motion to dismiss, it is barred by the rule on omnibus motion, hence it is deemed aived.

Sec. 2. (ourt to set time for hearing. .otice thereof. - 9+e' $ petition for letters of administration is filed in the court having jurisdiction, such court shall fi$ a time and place for hearing the petition, and shall cause notice thereof to be given to the kno n heirs and creditors of the decedent, and to any other persons believed to have an interest in the estate, #' *+e 3$''e% "% )#&e& #' Sec*# 's 2 $'& ; ! Rule 7>. .he probate court must cause notice through publication of the petition after it receives the same.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

.he purpose of the notice is to bring all the interested persons judgment therein becomes binding on all the orld. ithin the courts jurisdiction so that the

4here no notice as re&uired has been given to persons believed to have an interest in the estate of the deceased person, the proceeding for the settlement of the estate is void and should be annulled. .he re&uirement as to notice is essential to the validity of the proceeding in order that not person may be deprived of his right to property ithout due process of la . Sec. ;. 0pposition to petition for administration. - A'1 interested person may, by filing a ritten opposition, contest the petition on the ground of the incompetency of the person for hom letters are prayed *+e%e#'0 % ' *+e ground of the contestant#s own right to the administration, and may pray that letters issue to himself0 % * $'1 c 3"e*e'* "e%s ' % "e%s 's '$3e& #' *+e "" s#*# '. Sec. =. )earing and order for letters to issue. - A* *+e +e$%#'( ! *+e "e*#*# '0 #* 3us* !#%s* /e s+ ,' *+$* ' *#ce +$s /ee' (#)e' $s +e%e#'$/ )e %e:u#%e&0 $'& *+e%e$!*e% *+e c u%* s+$ll +e$% *+e "% !s ! *+e "$%*#es #' su"" %* ! *+e#% %es"ec*#)e $lle($*# 's0 and if satisfied that the decedent left no ill, or that there is no competent and illing e$ecutor, it shall order the issuance of letters of administration to the party best entitled thereto. Sec. >. When letters of administration granted to any applicant. - Le**e%s ! $&3#'#s*%$*# ' 3$1 /e (%$'*e& * $'1 &ualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear hen notified and claim the issuance of letters to themselves.

RULE @C SPECIAL ADMINISTRATOR Sec. 1. Appointment of special administrator.- 9+e' *+e%e #s &el$1 #' (%$'*#'( le**e%s *es*$3e'*$%1 % ! $&3#'#s*%$*# ' /1 $'1 c$use #'clu&#'( $' $""e$l !% 3 *+e $ll ,$'ce % &#s$ll ,$'ce ! $ ,#ll0 *+e c u%* 3$1 $"" #'* $ s"ec#$l $&3#'#s*%$* % * *$6e " ssess# ' $'& c+$%(e ! *+e es*$*e ! *+e &ece$se& u'*#l *+e :ues*# 's c$us#'( *+e &el$1 $%e &ec#&e& $'& e7ecu* %s % $&3#'#s*%$* %s $"" #'*e&. !pecial administrator+ representative of the decedent appointed by the probate court to care for and preserve his estate until an e$ecutor or general administrator is appointed. !( ruled that notice through publication of the petition is a jurisdictional re&uirement even in the appointment of judicial administrator. Appointment of special administrator and as to the selection thereof is purely discretionary of the court. .he order of appointment is discretionary and not appealable. )ssuance of such appointment is temporary and the appointing court does not determine ho are entitled to share in the estate of the decedent but ho is entitled to administration. .he issue of heirship is one to be determined in the decree of distribution and the findings of the court on the relationship of the parties in the administration, as to be the basis of the distribution. !pecial administrators are reminded that hile they may have respective interests to protect, they are officers of the court subject to the supervision and control of the probate court and are e$pected to ork in the best interest of the entire estate. .he basis for appointing a special administrator under the rules is broad enough to include any cause or reason for the delay in granting letters testamentary or of administration: 4here a contest to the ill is being carried on in the same or in another court; 4here there is an appeal pending as to the proceeding on the removal of the e$ecutor>administrator 4here parties cannot agree among themselves; 4here general administration cannot be immediately granted; 3o temporary administration can be granted here there is an e$ecutor capable of acting. .he accountability hich attaches to the office of the special administrator for it neutral possession is absent from the personal possession of the litigants.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. 2. Powers and duties of special administrator. - Suc+ s"ec#$l $&3#'#s*%$* % s+$ll *$6e possession and charge of goods, chattels, rights, credits, and estate of the deceased and preserve the same for the e$ecutor or administrator after ards appointed, and for that purpose may commence and maintain suits as administrator. .e 3$1 sell 'l1 suc+ "e%#s+$/le $'& *+e% "% "e%*1 $s *+e c u%* %&e%s s l&. A special administrator shall not be liable to pay any debts of the deceased unless so ordered by the court. !pecial administrator has the duty to submit an inventory of the estate ithin a reasonable period.

Sec. 2. When powers of special administrator cease' 1ransfer of effects' Pending suits. - 4hen letters testamentary or of administration are granted on the estate of the deceased, the po ers of the special administrator shall cease, $'& +e s+$ll ! %*+,#*+ 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. An order appointing a special administrator is interlocutory, a mere incident to the judicial proceedings here no appeal lies from such appointment. .he court making the appointment retains control over it, may modify, rescind, or revoke the same on sufficient grounds at any time before final judgment. RULE @1 BONDS OF EDECUTORS AND ADMINISTRATORS Sec. 1. $ond to be given before issuance of letters' Amount' (onditions. - =efore an e$ecutor or administrator enters upon the e$ecution of his trust, and letters testamentary or of administration issue, he shall give a bond0 #' suc+ su3 $s *+e c u%* &#%ec*s0 c '&#*# 'e& $s ! ll ,s?$B T make and return to the court, ithin three (/) months, a true and complete inventory of all goods, chattels, rights, credits, and estate of the deceased hich shall come to his possession or kno ledge % * *+e " ssess# ' ! $'1 *+e% "e%s ' ! % +#3< ?/B T administer according to these rules, and, if an e$ecutor, according to the ill of the testator, all goods, chattels, rights, credits, and estate hich shall at any time come to his possession or to the possession of any other person for him0 $'& !% 3 *+e proceeds to pay and discharge all debts, legacies, and charges on the same, or such dividends thereon as shall be decreed by the court< ?cB T %e'&e% $ *%ue $'& 8us* $cc u'* ! +#s $&3#'#s*%$*# ' * $* $'1 *+e% *#3e ,+e' %e:u#%e& /1 *+e c u%*< ?&B T "e%! %3 $ll %&e%s ! *+e c u%* /1 +#3 * *+e c u%* ,#*+#' 'e ?1B 1e$%0 $'&

/e "e%! %3e&.

.erms and effectivity of bond does not depend on payment of premium and does not e$pire until the administration is closed. As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability. .he surety became liable under the bond for the faithful administration of the estate by the e$ecutor>administrator; liabity of sureties is co+e$tensive ith that of the administrator. Sec. 2. $ond of executor where directed in will. When further bond re-uired. - I! *+e *es*$* % #' +#s ,#ll &#%ec*s *+$* *+e e7ecu* % se%)e ,#*+ u* / '&0 % ,#*+ 'l1 +#s #'&#)#&u$l / '&0 he may be allo ed by the court to give bond in such sum and ith such surety as the court approves conditioned only to pay the debts of the testator; but the court may re&uire of the e$ecutor a further bond in case a change in his circumstances, or for other sufficient cause, ,#*+ *+e c '&#*# 's '$3e& #' *+e l$s* "%ece&#'( sec*# '. Sec. 2. $onds of joint executors and administrators. - 9+e' *, % 3 %e "e%s 's $%e $"" #'*e& e7ecu* %s % $&3#'#s*%$* %s the court may take a separate bond from each, or a joint bond from all. Sec. ;. $ond of special administrator. - A special administrator before entering upon the duties of his trust shall give a bond, in such sum as the court directs, conditioned that he will make and return a true inventory of the goods, chattels, rights, credits, and estate of the deceased hich come to his possession or kno ledge0 $'& *+$* +e ,#ll *%ul1 $cc u'* ! % suc+ $s $%e %ece#)e& /1 +#3 ,+e' %e:u#%e& /1 *+e c u%*0 $'& ,#ll &el#)e% *+e s$3e * *+e "e%s ' $"" #'*e& e7ecu* % % $&3#'#s*%$* %0 % * suc+

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

*+e% "e%s ' $s 3$1 /e $u*+ %#4e& * %ece#)e *+e3.

@@@"ven if the administrator has no valid title to the lot, the sureties are not chargeable for it on the bond. .he administrators liability is personal and e$clusive of the sureties. RULE @2 REVOCATION OF ADMINISTRATION0 DEAT.0 RESIGNATION0 AND REMOVAL OF EDECUTORS AND ADMINISTRATORS Sec. 1. Administration revo+ed if will discovered' Proceedings thereupon. - I! $!*e% le**e%s ! $&3#'#s*%$*# ' +$)e /ee' (%$'*e& ' *+e es*$*e ! $ &ece&e'* $s #! +e +$& &#e& #'*es*$*e0 +#s ,#ll #s "% )e& $'& $ll ,e& /1 *+e c u%*0 the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith surrender the letters to the court, $'& %e'&e% +#s $cc u'* ,#*+#' suc+ *#3e $s *+e c u%* &#%ec*s. P% cee&#'(s ! % *+e #ssu$'ce ! le**e%s *es*$3e'*$%1 % ! $&3#'#s*%$*# ' u'&e% *+e ,#ll s+$ll /e $s +e%e#'/e! %e "% )#&e&. )f in the course of the intestate proceedings, it is found out that the decedent had left a last ill, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage, an administrator had already been appointed, the latter being re&uired to render a final account and turn over the estate in his possession to the e$ecutor subse&uently appointed. .he mere discovery ho ever of a document purporting to be the last ill and testament of the decedent after appointment of an administrator and assumption that the decedent died intestate does not ipso facto nullify the letters of administration already issued or even authorize their revocation until the ill has been proved and allo ed.

Sec. 2. (ourt may remove or accept resignation of executor or administrator' Proceedings upon death& resignation& or removal. - I! $' e7ecu* % % $&3#'#s*%$* % neglects to render his account and settle the estate according to law& or to perform an order or judgment of the court& or a duty expressly provided by these rules& % absconds, % becomes insane, or other ise incapable or unsuitable to discharge the trust, the court may remove him, or, in its discretion, may permit him to resign. 9+e' $' e7ecu* % % $&3#'#s*%$* % &#es0 %es#('s0 % #s %e3 )e& *+e %e3$#'#'( e7ecu* % % $&3#'#s*%$* % 3$1 $&3#'#s*e% *+e *%us* $l 'e0 u'less *+e c u%* (%$'*s le**e%s * s 3e 'e * $c* ,#*+ +#3. I! *+e%e #s ' %e3$#'#'( e7ecu* % % $&3#'#s*%$* %0 $&3#'#s*%$*# ' 3$1 /e (%$'*e& * $'1 su#*$/le "e%s '. %urpose of administration: li&uidation of the estate and distribution of the residue among the heirs and legatees. ?i&uidation: determination of all the assets of the estate and payment of all debts and e$penses. )n the discharge of his functions, the administrator should act ith utmost circumspection in order to preserve the estate and guard against its dissipation so as not to prejudice its creditors and the heirs of the decedent ho are entitled to the net residue thereof. :rounds for removal: 3eglect to render an account and settle the estate according to la ; 3eglect to perform an order or judgment of the court; 3eglect to perform a duty e$pressly provided by these rules Absconds, or becomes insane, or other ise incapable or unsuitable to discharge the trust. .emporary absence in the state does not dis&ualify one to be an administrator of the estate. .he determination of a persons suitability for the office of the judicial administrator rests to a great e$tent, in the sound judgment of the court e$ercising the po er of appointment and said judgment is not to be interfered ith on appeal unless the said court is clearly in error. :rounds enumerated are not e$clusive. 2nce the court finds the appointee to the position not entitled to such confidence relative to the position, it is justified in ithdra ing the appointment and giving no valid efficacy thereto. A mere importunity by some of the heirs of the deceased there being no factual and substantial bases therefor, is not ade&uate ratiocination for the removal of the administrator.

Sec. 2. Acts before revocation& resignation& or removal to be valid. - T+e l$,!ul $c*s $' e7ecu* % % $&3#'#s*%$* % /e! %e *+e %e) c$*# ' ! +#s le**e%s *es*$3e'*$%1 % ! $&3#'#s*%$*# '0 % /e! %e +#s %es#('$*# ' % %e3 )$l0 shall have the like validity as if there had been no such revocation, resignation, or removal.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

.he effect of revocation of letters testamentary or of administration is to terminate the authority of the e$ecutor or administrator, but his acts, done in good faith prior to the revocation of the letters ill be protected, and similar protection ill be e$tended to rights ac&uired under a previous grant of administration. Sec. ;. Powers of new executor or administrator. - Re'e,$l ! l#ce'se * sell %e$l es*$*e. .he person to hom letters testamentary or of administration are granted after the revocation of former letters, or the death, resignation, or removal of a former e$ecutor or administrator, shall have the like po ers to collect and settle the estate not administered that the former e$ecutor or administrator had, and may prosecute or defend actions commenced by or against the former e$ecutor or administrato %0 $'& have execution on judgments recovered in the name of such former execution or administrator. A' $u*+ %#*1 (%$'*e& /1 *+e c u%* * *+e ! %3e% e7ecu* % % $&3#'#s*%$* % ! % *+e s$le % 3 %*($(e ! %e$l es*$*e may be rene ed in favor of such person ithout further notice or hearing.

RULE @2 INVENTORY AND APPRAISAL< PROVISION FOR SUPPORT OF FAMILY Sec. 1. nventory and appraisal to be returned within three months. - 4ithin three (/) months after his appointment every e$ecutor or administrator shall return to the court a true inventory and appraisal of all the real and personal estate of the deceased hich has come into his possession or kno ledge. I' *+e $""%$#se3e'* ! suc+ es*$*e0 *+e c u%* 3$1 %&e% 'e % 3 %e ! *+e #'+e%#*$'ce *$7 $""%$#se%s * (#)e +#s % *+e#% $ss#s*$'ce. .he /+month period is not mandatory. )nventory filed after / months ill not deprive the probate court of jurisdiction to approve it, but such delay may be a ground for removal. (ourt has the inherent po er to determine hat properties, rights and credits of the deceased should be included in or e$cluded from the inventory.

Sec. 2. (ertain articles not to be inventoried. - T+e earing apparel of the surviving husband or ife and minor children, the marriage bed and bedding, and such provisions and other articles as ill necessarily be consumed in the subsistence of the family of the deceased0 u'&e% *+e &#%ec*# ' ! *+e c u%*0 s+$ll ' * /e c 's#&e%e& $s $sse*s0 ' % $&3#'#s*e%e& $s suc+0 $'& s+$ll ' * /e #'clu&e& #' *+e #')e'* %1. Sec. 2. Allowance to widow and family. - .he ido and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom, under the direction of the court, such allo ance $s $%e "% )#&e& /1 l$,. !ale of estate is unnecessary hen the cash in possession is sufficient for the monthly allo ed being paid to the heirs. .he deceaseds legitimate spouse and children, regardless of age, civil status or gainful employment are entitled to provisional support from the funds estate. Allo ance does not e$tend to grandchildren of the deceased. RULE @; GENERAL PO9ERS AND DUTIES OF EDECUTORS AND ADMINISTRATORS Sec. 1. Executor or administrator to have access to partnership boo+s and property' )ow right enforced. - T+e e7ecu* % % $&3#'#s*%$* % ! *+e es*$*e ! $ &ece$se& "$%*'e% s+$ll $* $ll *#3es +$)e $ccess * 0 $'& 3$1 e7$3#'e $'& *$6e c "#es !0 / 6s $'& "$"e%s %el$*#'( * *+e "$%*'e%s+#" /us#'ess0 and may e$amine and make invoices of the property belonging to such partnership; and the surviving partner or partners, on re&uest, shall e$hibit to him all such books, papers, and property in their hands or control. O' *+e ,%#**e' $""l#c$*# ' ! suc+ e7ecu* % % $&3#'#s*%$* %0 the court having jurisdiction of the estate may order any such surviving partner or partners to freely permit the exercise of the rights, and to exhibit the books, papers, and property, as in this section provided0 $'& 3$1 "u'#s+ $'1 "$%*'e% !$#l#'( * & s ! % c '*e3"*.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. 2. Executor or administrator to +eep buildings in repair. - A' e7ecu* % % administrator shall maintain in tenantable repair the houses and other structures and fences belonging to the estat e0 $'& &el#)e% *+e s$3e #' suc+ %e"$#% * *+e +e#%s % &e)#sees ,+e' &#%ec*e& s * & /1 *+e c u%*. Sec. 2. Executor or administrator to retain whole estate to pay debts& and to administer estate not willed. - A' e$ecutor or administrator shall have the right to the possession and management of the real as ell as the personal estate of the deceased so long as it is necessary for the payment of the debts $'& *+e e7"e'ses ! $&3#'#s*%$*# '.

An administrator of an estate cannot e$ercise the right of legal redemption over a portion of the property o ned in common hich as sold by one of the co+o ners since this is not ithin the po ers of administration. 4here estate of a deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it ithout any prior approval of the court. .he right of an e$ecutor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be e$ercised so long as it is necessary for the payment of the debts and e$penses of administration. RULE @= ACCOUNTABILITY AND COMPENSATION OF EDECUTORS AND ADMINISTRATORS

Sec. 1. Executor or administrator chargeable with all estate and income. - E7ce"* $s *+e%,#se e7"%essl1 "% )#&e& #' *+e ! ll ,#'( sec*# 's0 every e$ecutor or administrator is chargeable in his account ith the hole of the estate of the deceased hich has come into his possession, at the value of the appraisement contained in the inventory; with all the interest, profit, and income of such estate; and with the proceeds of so much of the estate as is sold by him, at the price at which it was sold. Sec. 2. .ot to profit by increase or lose by decrease in value. - 3o e$ecutor or administrator shall profit by the increase, or suffer loss by the decrease or destruction, ithout his fault, of any part of the estate. He must account for the excess when he sells any part of the estate for more than appraisement, $'& if any is sold for less than the appraisement, he is not responsible for the loss, if the sale has been justly made. )f he settles any claim against the estate for less than its nominal value, he is entitled to charge in his account only the amount he actually paid on the settlement. Sec. 2. When not accountable for debts due estate. - No executor or administrator shall be accountable for debts due the deceased which remain uncollected without his fault. Sec. ;. Accountable for income from realty used by him. - )f the e$ecutor or administrator uses or occupies any part of the real estate himself, he shall account for it as may be agreed upon bet een him and the parties interested, or adjusted by the court ith their assent; $'& #! *+e "$%*#es & ' * $(%ee u" ' *+e su3 * /e $ll ,e&0 *+e s$3e 3$1 /e $sce%*$#'e& /1 *+e c u%*0 ,+ se &e*e%3#'$*# ' #' *+#s %es"ec* s+$ll /e !#'$l.

Sec. =. Accountable if he neglects or delays to raise or pay money. " $hen an executor or administrator neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased, or neglects to pay over the money he has in his hands, and the value of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss0 *+e s$3e s+$ll /e &ee3e& ,$s*e $'& *+e &$3$(e sus*$#'e& 3$1 /e c+$%(e& $'& $ll ,e& $($#'s* +#3 #' +#s $cc u'*0 $'& +e s+$ll /e l#$/le *+e%e! % ' +#s / '&. .he administrator himself is liable for any aste committed in the estate through his negligence, and ith more reason that he be personally liable, and not the estate, for the conse&uences of his unla ful act. .he estate not having benefitted from the dispossession, besides not having been guilty of the unla ful act, it cannot be ordered to pay the damages.

Sec. >. When allowed money paid as costs. - T+e $3 u'* "$#& /1 $' e7ecu* % % $&3#'#s*%$* % ! % c s*s $,$%&e& $($#'s* +#3 s+$ll /e $ll ,e& #' +#s $&3#'#s*%$*# ' $cc u'*0 unless it appears that the action or proceeding in hich the costs are ta$ed as prosecuted or resisted ithout just cause, and not in good faith.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. 7. What expenses and fees allowed executor or administrator. - N * * c+$%(e ! % se%)#ces $s $** %'e1. C 3"e's$*# ' "% )#&e& /1 ,#ll c '*% ls u'less %e' u'ce&. An e$ecutor or administrator shall be allo ed the necessary e$penses in the care, management, and settlement of the estate, and for his services, ! u% "es s "e% &$1 ! % *+e *#3e $c*u$ll1 $'& 'ecess$%#l1 e3"l 1e& , or a commission upon the value of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts, expenses, legacies, or distributive shares, or by delivery to heirs or devisees, ! *, "e% ce'*u3 ! *+e !#%s* !#)e *+ us$'& "es s ! suc+ )$lue0 'e "e% ce'*u3 ! s 3uc+ ! suc+ )$lue $s e7cee&s !#)e *+ us$'& "es s $'& & es ' * e7cee& *+#%*1 *+ us$'& "es s0 'e-+$l! "e% ce'*u3 ! s 3uc+ ! suc+ )$lue $s e7cee&s *+#%*1 *+ us$'& "es s $'& & es ' * e7cee& 'e +u'&%e& *+ us$'& "es s $'& 'e-:u$%*e% "e% ce'*u3 ! s 3uc+ ! suc+ )$lue $s e7cee& 'e +u'&%e& *+ us$'& "es s. Bu* #' $'1 s"ec#$l c$se0 ,+e%e *+e es*$*e #s l$%(e0 $'& *+e se**le3e'* +$s /ee' $**e'&e& ,#*+ (%e$* &#!!#cul*10 $'& +$s %e:u#%e& $ +#(+ &e(%ee % c$"$c#*1 ' *+e "$%* ! *+e e7ecu* % % $&3#'#s*%$* %0 $ (%e$*e% su3 3$1 /e $ll ,e&. I! /8ec*# ' * *+e !ees $ll ,e& /e *$6e'0 *+e $ll ,$'ce 3$1 /e %e-e7$3#'e& ' $""e$l. )f there are t o or more e$ecutors or administrators, the compensation shall be apportioned among them by the court according to the services actually rendered by them respectively. 9+e' *+e e7ecu* % % $&3#'#s*%$* % #s $' $** %'e10 +e s+$ll ' * c+$%(e $($#'s* *+e es*$*e $'1 "% !ess# '$l !ees ! % le($l se%)#ces %e'&e%e& /1 +#3. 9+e' *+e &ece$se& /1 ,#ll 3$6es s 3e *+e% "% )#s# ' ! % *+e c 3"e's$*# ' ! +#s e7ecu* %0 that provision shall be a full satisfaction for his services unless by a ritten instrument filed in the court he renounces all claim to the compensation provided by the ill. (ompensation of an administrator:

a. 8>day for the time actually and necessarily employed, or; b. A commission upon the value of so much of the estate as comes to his possession and disposed of by him according to the schedule provided.

as

An e$ecutor>administrator is allo ed the necessary e$penses in the care, management, and settlement of the estate. 5e is also entitled to possess and manage the decedents real and personal estate as long as it is necessary for the payment of the debts and the e$penses of administration. 3ecessary e$penses of administration are such e$penses as are:

entailed for the preservation and productivity of the estate and for its management for purpose of li&uidation, payment of debts, and distribution of the residue among persons entitled for renovation and improvement of family residence to preserve the family home and maintain familys social standing. 3ot necessary e$penses: Anniversary of the death of the deceased; .hose incurred by a presumptive heir for her appearance and that of her itness at the trial to oppose the probate of the alleged ill; ;or the settlement of the &uestion as to ho are entitled to the estate left by the deceased; )ncurred by the e$ecutor or administrator to procure bond %ersonal e$penses of the heir of the family residence "$penses for stenographic notes, une$plained representation An administrator or e$ecutor may be allo ed fees for the necessary e$penses but he may not recover attorneys fees from the estate. 5is compensation is fi$ed by the rule but such a compensation is in the nature of e$ecutors or administrators commissions and never as attorneys fees. A la yer of an administrator or e$ecutor may not charge the estate for his fees, but rather his client. Attorneys fees may be allo ed as e$penses of administration.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

.he estate ho ever is not directly liable for his fees, the liability for the payment resting primarily on the e$ecutor or administrator; if the administrator had paid the fees, he ould be entitled to reimbursement from the estate. %rocedure: (ounsel should re&uest the administrator to make payment and file an action against him in his personal capacity and not as an administrator should he fail to pay. (ounsel may file a petition in the testate or intestate proceeding asking that the court allo his claim and direct the administrator to pay it as an e$pense of administration. 4here greater sum may be a arded> entitlement to additional compensation: .he estate must be large; .he settlement as e$traordinarily difficult; 5igh degree of capacity as demonstrated by the administrator. Although being a la yer by itself is not a factor in the assessment of an administrators fee, it should be other ise hen the administrator as able to stop hat appeared to be an improvident disbursement of a substantial amount ithout having to employ legal help at an additional e$pense.

Sec. @. When executor or administrator to render account. - E)e%1 e7ecu* % % $&3#'#s*%$* % s+$ll %e'&e% an account of his administration ithin one (#) year from the time of receiving letters testamentary or of administration, u'less *+e c u%* *+e%,#se &#%ec*s /ec$use ! e7*e's# 's ! *#3e ! % "%ese'*#'( cl$#3s $($#'s*0 % "$1#'( *+e &e/*s !0 *+e es*$*e0 % ! % &#s" s#'( ! *+e es*$*e< $'& +e s+$ll %e'&e% suc+ !u%*+e% $cc u'*s $s *+e c u%* 3$1 %e:u#%e u'*#l *+e es*$*e #s ,+ ll1 se**le&. .his mandatory, unless other ise directed by the court. .he fact that all the heirs of the estate have entered into an e$trajudicial settlement in order to put an end to their differences cannot in any ay be interpreted as aiver of the objections of the heirs to the accounts submitted by the administrator. .he duty of an administrator to render an account is not a mere incident of an administration proceeding hich can be aived or disregarded hen the same is terminated, but that it is a duty that has to be performed and duly acted upon by the court before the administration is finally ordered closed and terminated, to the end that no part of the decedents estate be left unaccounted for. )t is ruled that an e$ecutor or administrator ho receives assets of the estate after he has filed an account should file a supplementary account thereof ith respect to the matters occurring after the settlement of final account. .he fact that the final accounts had been approved does not divest the court of jurisdiction to re&uire supplemental accounting for, aside from initial accounting. Sec. A. Examination on oath with respect to account. - T+e court may e$amine the e$ecutor or administrator upon oath ith respect to every matter relating to any account rendered by him, $'& s+$ll s e7$3#'e +#3 $s * *+e c %%ec*'ess ! +#s $cc u'* /e! %e *+e s$3e #s $ll ,e&0 e7ce"* ,+e' ' /8ec*# ' #s 3$&e * *+e $ll ,$'ce ! *+e $cc u'* $'& #*s c %%ec*'ess #s s$*#s!$c* %#l1 es*$/l#s+e& /1 c 3"e*e'* "% !. T+e +e#%s0 le($*ees0 &#s*%#/u*ees0 $'& c%e&#* %s ! *+e es*$*e s+$ll +$)e *+e s$3e "%#)#le(e $s *+e e7ecu* % % $&3#'#s*%$* % ! /e#'( e7$3#'e& ' $*+ ! $'1 3$**e% %el$*#'( * $' $&3#'#s*%$*# '. At the hearing, the administrator ill take the itness stand, testify under oath on his accounts, identify the receipts and documents evidencing his disbursements hich are offered as e$hibits; he may be interrogated by the court, and crossed by the opposing counsel. Sec. 1C. Account to be settled on notice. - =efore the account of an e$ecutor or administrator is allo ed, notice shall be given to persons interested of time and place of e$amining and allo ing the same< $'& such notice may be given personally to such persons interested or by advertisement in a newspaper or newspapers, or both, as the court directs. Sec. 11. Surety on bond may be party to accounting. - U" ' *+e se**le3e'* ! *+e $cc u'* ! $' e7ecu* % % $&3#'#s*%$* %0 $ "e%s ' l#$/le $s su%e*1 #' %es"ec* * suc+ $cc u'* 3$10 u" '

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

$""l#c$*# '0 /e $&3#**e& $s "$%*1 * suc+ $cc u'*#'(.

RULE @> CLAIMS AGAINST ESTATE Sec. 1. .otice to creditors to be issued by court. - I33e&#$*el1 $!*e% (%$'*#'( le**e%s *es*$3e'*$%1 % ! $&3#'#s*%$*# '0 *+e c u%* s+$ll #ssue $ ' *#ce %e:u#%#'( $ll "e%s 's +$)#'( 3 'e1 cl$#3s $($#'s* *+e &ece&e'* * !#le *+e3 #' *+e !!#ce ! *+e cle%6 ! s$#& c u%*. Administration proceedings are therefore instituted to settle the estate of the deceased. .he purpose of presentation of claims against decedents of the estate in the probate court is to protect the estate of deceased persons. A compromise in separate civil case hich is an action for collection against estate is null and void; the claim must be filed ith the probate court ithin the period prescribed. Sec. 2. 1ime within which claims shall be filed. - I' *+e ' *#ce "% )#&e& #' *+e "%ece&#'( sec*# '0 the court shall state the time for the filing of claims against the estate, hich shall not be more than t elve (#9) nor less than si$ (A) months after the date of the first publication of the notice. . ,e)e%0 at any time before an order of distribution is entered, on application of a creditor who has failed to file his claim within the time previously limited, the court may, for cause shown and on such terms as are e%uitable, allow such claim to be filed within a time not exceeding one (&) month .his is the statute of non+claims: period for filing the claims against the estate. .he probate court is permitted by the rule to set the period provided it is not less than A months nor more than t elve months from the day of the first publication of the notice thereof; period fi$ed is mandatory. %robate court is given the discretion to allo claims presented beyond the period previously fi$ed provided that they are filed ithin one month from the e$piration of such period but in no case beyond the date of entry of the order of distribution. )t must be pointed out that the period prescribed in the notice to creditors is not e$clusive, that money claims against the estate may be allo ed at any time before an order of distribution is entered. .hough presentment of probate claims is imperative, it is generally understood that it may be aived by the estates representative hen the administrator failed to plead the statue of non+ claims, and his active participation and resistance to plaintiffs claim in the civil suit for collection. .he pendency of the action before the regular courts as cited as a good e$cuse for the tardiness of the claim. .he creditor has the duty to present its claim ithin a reasonable time after the death of the decedent in the estate proceedings, and if none ere had, to filed for letters of administration.

Sec. 2. Publication of notice to creditors. - "very e$ecutor or administrator shall, immediately after the notice to creditors is issued, cause the same to be published three (/) eeks successively in a ne spaper of general circulation in the province, $'& * /e "osted for the same period in four public places in the province and in two public places in the municipality where the decedent last resided Sec. ;. 2iling copy of printed notice. - 9#*+#' ten (#0) days after the notice has been published and posted in accordance ith the preceding section, the e$ecutor or administrator shall file or cause to be filed in the court a printed copy of the notice accompanied ith an affidavit setting forth the dates of the first and last publication thereof and the name of the ne spaper in hich the same is printed. Sec. =. (laims which must be filed under the notice. - I! ' * !#le&0 /$%%e&< e7ce"*# 's. All claims for money against the decedent, arising from contract, e$press or implied, hether the same be due, not due, or contingent, all claims for funeral e$penses and e$penses for the last sickness of the decedent, and judgment for money against the decedent, must be filed ithin the time limited in the notice; *+e%,#se *+e1 $%e /$%%e& ! %e)e%0 e7ce"* *+$* *+e1 3$1 /e se* ! %*+ $s c u'*e%cl$#3s #' $'1 $c*# ' *+$* *+e e7ecu* % % $&3#'#s*%$* % 3$1 /%#'( $($#'s* *+e cl$#3$'*s . 4here an e$ecutor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by ans er the claims he has against the decedent, instead of presenting them independently to the court as herein provided, and mutual claims may be set off against each other in such action; $'& #! !#'$l 8u&(3e'* #s %e'&e%e& #' !$) % ! *+e &e!e'&$'*0 *+e $3 u'* s &e*e%3#'e& s+$ll /e c 's#&e%e& *+e *%ue /$l$'ce $($#'s* *+e es*$*e0 $s *+ u(+ *+e cl$#3 +$&

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

/ee' "%ese'*e& &#%ec*l1 /e! %e *+e c u%* #' *+e $&3#'#s*%$*# ' "% cee&#'(s. Cl$#3s ' * 1e* &ue % c '*#'(e'*0 3$1 /e $""% )e& $* *+e#% "%ese'* )$lue. 3ot all money claim may ho ever be presented, but only those hich are proper against the decedent, that is , claims upon a liability contracted by the decedent before his death. (laims arising after his death cannot thus be presented, e$cept funeral e$penses and e$penses of the last sickness of the decedent. (laims originating after the decedents death, may be allo ed as e$penses of administration hich maybe collected from the administrator or e$ecutor personally or by motion in the testate or intestate proceedings ithout the formality and limitation provided for money claims against the decedent. .he follo ing must be filed ith the probate court ithin the time limited in the notice, other ise barred.

a. All money claims against the decedent arising from contract, e$press or implied, hether the same be due or not due, or contingent; b. All claims for funeral e$penses and e$penses for the last sickness of the decedent; c. 1udgment for money against the decedent hich must be presented as a claim against the estate, here the judgment debtor dies levy on e$ecution of his properties. %eriod runs against all claimants, even against the !tate. 'oney claims arising from delict do not form part of this e$clusive enumeration. )f a rit of attachment had been issued and levied, the death of the defendant at hatever stage of the action ould not be a ground for the dismissal of the action and dissolution of the rit. )f the judgment is entered against the estate of the deceased defendant, the same shall be enforced as a money claim. 5o ever, the rit of attachment obtained by the plaintiff hich has not been dissolved ill entitle him to preference over the other creditors. A claim is e$tinguished by reason of death if the action is personal to either of the parties. A claim may not have been e$tinguished by reason of death, such as an action to recover a contractual money claim, but the action brought for the enforcement of the claim may not survive. Action to recover real or personal property or an interest therein, from the estate, or to enforce a lien therein, and action to recover damages for an injury to property, real or personal is an action hich survive that may be commenced against the e$ecutor or administrator. Action hich survives: the rong complained of affects primarily and principally property and property rights, the injuries to persons being merely incidental. Action hich do no survive: the injury complained of is to the person, the property and property rights affected being merely incidental. )f the debtor dies before an action could be filed against him, the creditor ill have to file a money claim ith the probate court. )f the claim does not arise from contract, e$press or implied, such as a claim for damages for an injury to person or property, an ordinary action may be filed against the e$ecutor or administrator (tort or delict). )f death of the defendant occurred prior to levy, the judgment is not enforceable by rit of e$ecution; the judgment creditor must file claim in probate court. An action for foreclosure of mortgage survives and may be enforced by rit of e$ecution against the administrator ithout filing a claim in probate court. Action for ejectment may be prosecuted despite the death of defendant and may continue until final judgment in hich the &uestion of damages should be adjudicated. !( ruled that supervening death of the defendant did not e$tinguish hi ifes action for partition of their conjugal assets, for it is an action that survives. (laims that are e$tinguished:

a. %urely personal actions, but if there is already a final decree of legal separation, the action continues ith respect to the li&uidation of conjugal property. A creditor cannot sue the surviving spouse of a decedent in an ordinary proceeding for the collection of sum of money chargeable against the conjugal partnership; proper remedy for him is to file a claim in the settlement proceedings. )f the action is against the conjugal partnership and one of the spouses died, the action should be dismissed and the claim filed against the estate.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

"$ecution of final judgment is not the proper remedy to enforce payment, but to present a claim before the probate court so that said court may order the administrator to pay the amount thereof. -uring the pendency of the proceedings all the estate is in custodia legis and the proper procedure is not to allo the sheriff, in case of a court judgment, to seize the properties but to ask the court for an order to re&uire the administrator to pay the amount due from the estate and re&uired to be paid. )n the absence of any sho ing that respondent judge ho is taking cognizance of the estate proceedings had already allo ed the administrator to dispose of the estate and to pay the debts and legacies of the deceased, a rit of mandamus ill not issue to compel him to order payment of petitioners claim. 4here an e$ecutor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by ans er the claims he has against the decedent, instead of presenting them independently to the court, and mutual claims may be set off against each other in such action. 3ot only claims due, but also claims not due or contingent should be filed other they are barred forever. A contingent claim is one by hich, by its nature is necessarily dependent upon an uncertain event for its e$istence and claim, and its validity and enforceability depending upon an uncertain event. (e$: surety companies, mere possibility of a liability.

Sec. >. Solidary obligation of decedent. - 9+e%e *+e /l#($*# ' ! *+e &ece&e'* #s s l#&$%1 ,#*+ $' *+e% &e/* %0 *+e claim shall be filed against the decedent as if he were the only debtor, without prejudice to the right of the estate to recover contribution form the other debtor. I' $ 8 #'* /l#($*# ' ! *+e &ece&e'*0 *+e cl$#3 s+$ll /e c '!#'e& * *+e " %*# ' /el '(#'( * +#3. )n case of death of one of the solidary debtors, the creditor may, if he so chooses, proceed against the surviving solidary debtors ithout necessity of filing a claim in the estate of the deceased debtors.

Sec. 7. /ortgage debt due from estate. - A creditor holding a claim against the deceased secured by mortgage or other collateral security, may abandon the security and prosecute his claim in the manner provided in this rule, and share in the general distribution of the assets of the estate< % he may foreclose his mortgage or realize upon his security, by action in court, making the executor or administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceeding to realize upon the security, he may claim his deficiency judgment in the manner provided in the preceding section< % +e 3$1 %el1 u" ' +#s 3 %*($(e ! *+e% secu%#*1 $l 'e0 $'& ! %ecl se *+e s$3e $* $'1 *#3e ,#*+#' *+e "e%# & ! *+e s*$*u*e ! l#3#*$*# 's0 $'& #' *+$* e)e'* +e s+$ll ' * /e $&3#**e& $s $ c%e&#* %0 $'& s+$ll %ece#)e ' s+$%e #' *+e &#s*%#/u*# ' ! *+e *+e% $sse*s ! *+e es*$*e< /u* ' *+#'( +e%e#' c '*$#'e& s+$ll "% +#/#* *+e e7ecu* % % $&3#'#s*%$* % !% 3 %e&ee3#'( *+e "% "e%*1 3 %*($(e& % "le&(e&0 /1 "$1#'( *+e &e/* ! % ,+#c+ #* #s +el& $s secu%#*10 u'&e% *+e &#%ec*# ' ! *+e c u%*0 #! *+e c u%* s+$ll $&8u&(e #* * /e ! % *+e /es* #'*e%es* ! *+e es*$*e *+$* suc+ %e&e3"*# ' s+$ll /e 3$&e. Alternative remedies of the mortgagee in case the mortgagor dies: b. 4aive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim; c. ;oreclose the mortgage judicially and prove the deficiency as an ordinary claim; d. *ely on the mortgage e$clusively, or other security and foreclose the same at anytime, before it is barred by prescription, ithout the right to file a claim for any deficiency. ( mortgagee does not lose its right to e$trajudicially foreclose the mortgage even after death of mortgagor. .he rule reserves the right of the e$ecutor or administrator of an estate to redeem a mortgage to the decedent hich the mortgagee has opted to foreclose, instead of fling a money claim in the probate court. 3o right to claim deficiency judgment under the third option. .he remedies are distinct, independent and mutually e$clusive that can be alternatively pursued.

Sec. @. (laim of executor or administrator against an estate. - I! the e$ecutor or administrator has a claim against the estate he represents, he shall give notice thereof, in riting, to the court, and the court shall appoint a special administrator, who shall, in the adjustment of such claim, have the same power and be subject to the same liability as the general administrator or executor in the settlement of other claims .

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

T+e c u%* 3$1 %&e% *+e e7ecu* % % $&3#'#s*%$* % * 'ecess$%1 !u'&s * &e!e'& suc+ cl$#3. "$1 * *+e s"ec#$l $&3#'#s*%$* %

Sec. A. )ow to file a claim. (ontents thereof' .otice to executor or administrator. - A claim may be filed by delivering the same ith the necessary vouchers to the clerk of court and by serving a copy thereof on the e$ecutor or administrator. I! the claim be founded on a bond, bill, note or any other instrument, the original need not be filed, but a copy thereof ith all indorsements shall be attached to the claim and filed there ith. O' demand, however, of the executor or administrator, or by order of the court or judge, the original shall be exhibited, unless it be lost or destroyed, in which case the claimant must accompany his claim with affidavit or affidavits containing a copy or particular description of the instrument and stating its loss or destructio'. 9+e' *+e cl$#3 #s &ue0 #* 3us* /e su"" %*e& /1 $!!#&$)#* s*$*#'( *+e $3 u'* 8us*l1 &ue0 *+$* ' "$13e'*s +$)e /ee' 3$&e *+e%e ' ,+#c+ $%e ' * c%e&#*e&0 $'& *+$* *+e%e $%e ' !!se*s * *+e s$3e0 * *+e 6' ,le&(e ! *+e $!!#$'*. f the claim is not due& or is contingent& when filed& it must also be supported by affidavit stating the particulars thereof. When the affidavit is made by a person other than the claimant& he must set forth therein the reason why it is not made by the claimant. T+e cl$#3 'ce !#le& s+$ll /e $**$c+e& * *+e %ec %& ! *+e c$se #' ,+#c+ *+e le**e%s *es*$3e'*$%1 % ! $&3#'#s*%$*# ' ,e%e #ssue&0 $l*+ u(+ *+e c u%*0 #' #*s &#sc%e*# '0 $'& $s $ 3$**e% ! c ')e'#e'ce0 3$1 %&e% $ll *+e cl$#3s * /e c llec*e& #' $ se"$%$*e ! l&e%. Administrator should be notified of any claim that is in fact asserted against the estate so as to afford him every opportunity to dispute the claim. ?a yer, creditor of attorneys fees has t o remedies: %rosecute an action against the administrator as an individual; if the judgment is rendered against the administrator and it is paid by him, hen he presents his final account to the probate court to hich he can include amount so paid as e$penses of administration. A monetary claim against the administrator hich has a relation to his acts of administration may be presented for payment ith the court here a special proceeding for this settlement of the estate is pending, though such claim as not incurred by the deceased in his lifetime and collectible after his death.

Sec. 1C. Answer of executor or administrator' 0ffsets. - 9#*+#' !#!*ee' ?1=B &$1s $!*e% se%)#ce ! $ c "1 ! *+e cl$#3 ' *+e e7ecu* % % $&3#'#s*%$* %0 he shall file his answer admitting or denying the claim specifically, and setting forth the substance of the matters which are relied upon to support the admission or denial I! +e +$s ' 6' ,le&(e su!!#c#e'* * e'$/le +#3 * $&3#* % &e'1 s"ec#!#c$ll10 +e s+$ll s*$*e suc+ ,$'* ! 6' ,le&(e. T+e e7ecu* % % $&3#'#s*%$* % #' +#s $'s,e% s+$ll $lle(e #' !!se* $'1 cl$#3 ,+#c+ *+e &ece&e'* /e! %e &e$*+ +$s $($#'s* *+e cl$#3$'*0 $'& +#s !$#lu%e * & s s+$ll /$% *+e cl$#3 ! %e)e%. A c "1 ! *+e $'s,e% s+$ll /e se%)e& /1 *+e e7ecu* % % $&3#'#s*%$* % ' *+e cl$#3$'*. T+e c u%* #' #*s &#sc%e*# ' 3$1 e7*e'& *+e *#3e ! % !#l#'( suc+ $'s,e%. Sec. 11. 3isposition of admitted claim. - A'1 cl$#3 $&3#**e& e'*#%el1 /1 *+e e7ecu* % % $&3#'#s*%$* % s+$ll #33e&#$*el1 /e su/3#**e& /1 *+e cle%6 * *+e c u%* ,+ 3$1 $""% )e *+e s$3e ,#*+ u* +e$%#'(< but the court, in its discretion, before approving the claim, may order that kno n heirs, legatees, or devisees be notified and heard. 'f upon hearing, an heir, legatee, or devisee opposes the claim, the court may, in its discretion, allow him fifteen (&() days to file an answer to the claim in the manner prescribed in the preceding section Sec. 12. 1rial of contested claim. - U" ' *+e !#l#'( ! $' $'s,e% * $ cl$#30 % u" ' *+e e7"#%$*# ' ! *+e *#3e ! % suc+ !#l#'(0 *+e cle%6 ! c u%* s+$ll se* *+e cl$#3 ! % *%#$l ,#*+ ' *#ce * / *+ "$%*#es. T+e c u%* 3$1 %e!e% *+e cl$#3 * $ c 33#ss# 'e%. Sec. 12. 4udgment appealable. - T+e 8u&(3e'* ! *+e c u%* $""% )#'( % &#s$""% )#'( $ cl$#30 s+$ll /e !#le& ,#*+ *+e %ec %& ! *+e $&3#'#s*%$*# ' "% cee&#'(s ,#*+ ' *#ce * / *+ "$%*#es0 $'& #s $""e$l$/le $s #' %&#'$%1 c$ses. A 8u&(3e'* $($#'s* *+e e7ecu* % % $&3#'#s*%$* % s+$ll /e *+$* +e "$10 #' &ue c u%se ! $&3#'#s*%$*# '0 *+e $3 u'* $sce%*$#'e& * /e &ue0 $'& #* s+$ll ' * c%e$*e $'1 l#e' u" ' *+e "% "e%*1 ! *+e es*$*e0 % (#)e * *+e 8u&(3e'* c%e&#* % $'1 "%# %#*1 ! "$13e'*. Sec. 1;. (osts. - 9+e' *+e e7ecu* % % $&3#'#s*%$* %0 #' +#s $'s,e%0 $&3#*s $'& !!e%s * "$1 "$%* ! $ cl$#30 $'& *+e cl$#3$'* %e!uses * $cce"* *+e $3 u'* !!e%e& #' s$*#s!$c*# ' ! +#s cl$#30 #! +e !$#ls * /*$#' $ 3 %e !$) %$/le 8u&(3e'*0 +e c$'' * %ec )e% c s*s0 /u* 3us* "$1 * *+e e7ecu* % % $&3#'#s*%$* % c s*s !% 3 *+e *#3e ! *+e !!e%. 9+e%e $' $c*# ' c 33e'ce& $($#'s* *+e &ece$se& ! % 3 'e1 +$s /ee' &#sc '*#'ue& $'& *+e cl$#3 e3/%$ce& *+e%e#' "%ese'*e& $s #' *+#s %ule "% )#&e&0 *+e "%e)$#l#'( "$%*1 s+$ll /e $ll ,e& *+e c s*s ! +#s $c*# '

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

u" * *+e *#3e ! #*s &#sc '*#'u$'ce.

RULE @7 ACTIONS BY AND AGAINST EDECUTORS AND ADMINISTRATORS Sec. 1. Actions which may and which may not be brought against executor or administrator. N $c*# ' u" ' $ cl$#3 ! % *+e %ec )e%1 ! 3 'e1 % &e/* % #'*e%es* *+e%e ' s+$ll /e c 33e'ce& $($#'s* *+e e7ecu* % % $&3#'#s*%$* %< /u* $c*# 's * %ec )e% %e$l % "e%s '$l "% "e%*10 % $' #'*e%es* *+e%e#'0 !% 3 *+e es*$*e0 % * e'! %ce $ l#e' *+e%e '0 $'& $c*# 's * %ec )e% &$3$(es ! % $' #'8u%1 * "e%s ' % "% "e%*10 %e$l % "e%s '$l0 3$1 /e c 33e'ce& $($#'s* +#3. An administrator may not pull a third person against his ill into the administration proceedings by mere motion for a demand of rentals, but must do so in a separate action. 3otices must be sent to estates administrator, he being the representative of the estate. An action for damages may be brought against an e$ecutor or administrator. An action for revival of money judgment may be filed against the administrator to preempt prescription of judgment.

Sec. 2. Executor or administrator may bring or defend actions which survive. - F % *+e %ec )e%1 % "% *ec*# ' ! *+e "% "e%*1 % %#(+*s ! *+e &ece$se&0 an e$ecutor or administrator may bring or defend, in the right of the deceased, actions for causes hich survive. Any action affecting the property rights of a deceased person hich may be brought by or against him if he ere alive, may like ise be instituted or prosecuted by or against the administrator, unless e$tinguished by death.

Action that survive against a decedents e$ecutor>administrator: Actions to recover personal or real property; An interest thereon from the estate or to enforce a lien thereon from the estate; Actions to recover damages for an injury to person or property, real or personal.

)njury to property is not limited to injuries to specific property, but e$tends to other rongs by hich personal estate is injured or diminished. Action for foreclosure as not e$tinguished because the claim against him is not a pure money claim but an action to enforce a mortgage lien, it is an action hich survived his death and hich can proceed independently of the intestate proceedings for the settlement of his estate.

Sec. 2. )eir may not sue until have share assigned. - 9+e' $' e7ecu* % % $&3#'#s*%$* % #s $"" #'*e& $'& $ssu3es *+e *%us*0 no action to recover the title or possession of lands or for damages done to such lands shall be maintained against him by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee until the time allo ed for paying debts has e$pired.

)n order that an heir may assert his right to the property of a deceased, no previous judicial
declaration of heirship is necessary. 3o action to recover the title or possession of lands or for damages done to such lands shall be maintained against him by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee or until the time allo ed for paying debts has e$pired. !uch prohibition only apply to heirs or devises and not to a done inter vivos ho may file an action to compel the administrator to deliver the property donated. 5eirs may act in place of the administrator if the latter is un illing or fails to act. "ven if administration proceedings have already been commenced, the heirs may still bring the suit if an administrator has not yet been appointed. "ven if there is an appointed administrator, the heirs may still bring an action in the follo ing:

)f the e$ecutor> administrator is un illing or refuses to bring suit; 4hen the administrator is alleged to have participated in the act complained of and he is made a party defendant; 2r hen the administrator is a party to the fraud.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. ;. Executor or administrator may compound with debtor. - 9#*+ *+e $""% )$l ! *+e c u%*0 an executor or administrator may compound with the debtor of the deceased for a debt due, and may give a discharge of such debt on receiving a just dividend of the estate of the debtor Sec. =. /ortgage due estate may be foreclosed. - ! mortgage belonging to the estate of a deceased person, as mortgagee or assignee of the right of a mortgagee, may be foreclosed by the executor or administrator. .here is no need of a special authority from the court for the administrator or e$ecutor to bring an action for foreclosure on behalf of the estate. Sec. >. Proceedings when property concealed& embe55led& or fraudulently conveyed. - I! $' e7ecu* % % $&3#'#s*%$* %0 +e#%0 le($*ee0 c%e&#* %0 % *+e% #'&#)#&u$l #'*e%es*e& #' *+e es*$*e ! *+e &ece$se&0 complains to the court having jurisdiction of the estate 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 has knowledge of any deed, conveyance, bond, contract, or other writing which contains evidence of or tends to disclose the right, title, interest, or claim of the deceased to real or personal estate, or the last will and testament of the deceased 0 *+e c u%* 3$1 c#*e suc+ sus"ec*e& "e%s ' * $""e$% /e! %e #* $'& 3$1 e7$3#'e +#3 ' $*+ ' *+e 3$**e% ! suc+ c 3"l$#'*< $'& #! *+e "e%s ' s c#*e& %e!uses * $""e$%0 % * $'s,e% ' suc+ e7$3#'$*# ' % suc+ #'*e%% ($* %#es $s $%e "u* * +#30 *+e c u%* 3$1 "u'#s+ +#3 ! % c '*e3"*0 $'& may commit him to prison until he submits to the order of the court. 1he interrogatories put to any such person& and his answers thereto& shall be in writing and shall be filed in the cler+6s office.

.hird persons to

hom the decedents assets have been fraudulently conveyed may be cited to appear in court and be e$amined under oath as to ho they cam into the possession of the decedents assets. )n such proceeding, the court has no authority to decide hether the property, real or personal, belongs to the deceased or the persons e$amined. )f after e$amination, there is good reason for believing that the person so e$amined has property in his possession belonging to the estate, it is the duty of the administrator, by ordinary action, to recover the same. !uch proceedings are intended merely to investigate and take testimony for use in an independent action. Sec. 7. Person entrusted with estate compelled to render account. - .he court, on complaint of an e$ecutor or administrator, may cite a person entrusted by an e$ecutor or administrator ith any part of the estate of the deceased to appear before it, and may re&uire such person to render a full account0 ' $*+0 ! *+e 3 'e10 ( &s0 c+$**els0 / '&s0 $cc u'*s0 % other papers belonging to such estate as came to his possession in trust for such executor or administrator, and of his proceedings thereon; and if the person so cited refuses to appear to render such account 0 *+e c u%* 3$1 "u'#s+ +#3 ! % c '*e3"* $s +$)#'( &#s /e1e& $ l$,!ul %&e% ! *+e c u%*. All persons ho come into possession of a property belonging to any decedent are liable therefor and accountable to the la ful administrator hen the estate is finally dra n into judicial administration. Sec. @. Embe55lement before letters issued. - If a person, before the granting of letters testamentary or of administration on the estate of the deceased, embezzles or alienates any of the money, goods, chattels, or effects of such deceased, such person shall be liable to an action in favor of the e$ecutor or administrator of the estate ! % & u/le *+e )$lue ! *+e "% "e%*1 s l&0 e3/e44le&0 % $l#e'$*e&0 * /e %ec )e%e& ! % *+e /e'e!#* ! suc+ es*$*e. .his contemplates of an embezzlement or alienation hich causes the estate to lose the property converted by the rongdoer. -ouble value rule does not apply to the manager of a company ho carries on the business after the death of his principal and applies the proceeds of sale to the payment of debts contracted in running the business. Sec. A. Property fraudulently conveyed by deceased may be recovered' When executor or administrator must bring action. + 4hen there is deficiency of assets in the hands of an e$ecutor or administrator for the payment of debts and e$penses of administration 0 $'& the deceased in his lifetime had conveyed real or personal property, or a right or interest therein, or a debt or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or had so conveyed such property, right, interest,

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

debt, or credit that by law the conveyance would be void as against his creditors, and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime0 *+e e7ecu* % % $&3#'#s*%$* % 3$1 c 33e'ce $'& "% secu*e * !#'$l 8u&(3e'* $' $c*# ' ! % *+e %ec )e%1 ! suc+ "% "e%*10 %#(+*0 #'*e%es*0 &e/*0 % c%e&#* ! % *+e /e'e!#* ! *+e c%e&#* %s< /u* +e s+$ll ' * /e / u'& * c 33e'ce *+e $c*# ' u'less ' $""l#c$*# ' ! *+e c%e&#* %s ! *+e &ece$se&0 ' % u'less *+e c%e&#* %s 3$6#'( *+e $""l#c$*# ' "$1 suc+ "$%* ! *+e c s*s $'& e7"e'ses0 % (#)e secu%#*1 *+e%e! % * *+e e7ecu* % % $&3#'#s*%$* %0 $s *+e c u%* &ee3s e:u#*$/le. Sec. 1C. When creditor may bring action' %ien for costs. - 9+e' *+e%e #s suc+ $ &e!#c#e'c1 ! $sse*s0 $'& *+e &ece$se& #' +#s l#!e*#3e +$& 3$&e % $**e3"*e& suc+ $ c ')e1$'ce0 $s #s s*$*e& #' *+e l$s* "%ece&#'( sec*# '0 $'& *+e e7ecu* % % $&3#'#s*%$* % +$s ' * c 33e'ce& *+e $c*# ' *+e%e#' "% )#&e& ! %0 $'1 c%e&#* % ! *+e es*$*e 3$10 ,#*+ *+e "e%3#ss# ' ! *+e c u%*0 c 33e'ce $'& "% secu*e * !#'$l 8u&(3e'*0 #' *+e '$3e ! *+e e7ecu* % % $&3#'#s*%$* %0 $ l#6e $c*# ' ! % *+e %ec )e%1 ! *+e su/8ec* ! *+e c ')e1$'ce % $**e3"*e& c ')e1$'ce ! % *+e /e'e!#* ! *+e c%e&#* %s. Bu* *+e $c*# ' s+$ll ' * /e c 33e'ce& u'*#l *+e c%e&#* %s +$s !#le& #' $ c u%* $ / '& e7ecu*e& * *+e e7ecu* % % $&3#'#s*%$* %0 #' $' $3 u'* $""% )e& /1 *+e 8u&(e0 c '&#*# 'e& * #'&e3'#!1 *+e e7ecu* % % $&3#'#s*%$* % $($#'s* *+e c s*s $'& e7"e'ses #'cu%%e& /1 %e$s ' ! suc+ $c*# '. Suc+ c%e&#* % s+$ll +$)e $ l#e' u" ' $'1 8u&(3e'* %ec )e%e& /1 +#3 #' *+e $c*# ' ! % suc+ c s*s $'& *+e% e7"e'ses #'cu%%e& *+e%e#' $s *+e c u%* &ee3s e:u#*$/le. 9+e%e *+e c ')e1$'ce % $**e3"*e& c ')e1$'ce +$s /ee' 3$&e /1 *+e &ece$se& #' +#s l#!e*#3e #' !$) % ! *+e e7ecu* % % $&3#'#s*%$* %0 *+e $c*# ' ,+#c+ $ c%e&#* % 3$1 /%#'( s+$ll /e #' *+e '$3e ! $ll *+e c%e&#* %s0 $'& "e%3#ss# ' ! *+e c u%* $'& !#l#'( ! / '& $s $/ )e "%esc%#/e&0 $%e ' * 'ecess$%1.

*e&uisites for creditor to file action to recover property fraudulently conveyed: a. .here is a deficiency of assets in the hands of an e$ecutor or administrator for the payment of debts and e$penses of administration; b. .he deceased in his lifetime had made or attempted to make a fraudulent conveyance of his real or personal property or a right or interest therein, or a debt or credit, ith intent to defraud his creditors or to avoid any right, debt or duty, or had so conveyed such property, right, debt, or credit that by la the conveyance ould be void as against his creditors; c. .he subject of the attempted conveyance ould be liable to attachment by any of them in his lifetime; d. .he e$ecutor or administrator has sho n to have no desire to file the action or failed to institute the same ithin a reasonable time; e. .he leave is granted by the court to the creditor to file the action; f. A bond is filed by the creditor as prescribed g. .he action by the creditor is in the name of the e$ecutor or administrator. Administratri$ ho claims to be a creditor cannot ask for preliminary attachment in an action to recover since this is considered a money claim that should be ventilated in the estate case.

RULE @@ PAYMENT OF T.E DEBTS OF T.E ESTATE Sec. 1. 3ebts paid in full if estate sufficient. - I!0 $!*e% +e$%#'( $ll *+e 3 'e1 cl$#3s $($#'s* *+e es*$*e0 $'& $!*e% $sce%*$#'#'( *+e $3 u'* ! suc+ cl$#3s0 #* $""e$%s *+$* *+e%e $%e su!!#c#e'* $sse*s * "$1 &e/*s0 *+e e7ecu* % % $&3#'#s*%$* % s+$ll "$1 *+e s$3e ,#*+#' *+e *#3e l#3#*e& ! % *+$* "u%" se. %ayment of debts and e$penses of administration: 4rit of e$ecution is not proper; (ourt should order the sale of personal estate or the sale or mortgage of real property of the deceased and all debts and e$penses of the administration should be paid out of the proceeds of such sale or mortgage upon motion of the administrator and ith ritten notice to all the heirs, legatees and devisees residing in the %hilippines. %robate court may hold in abeyance intestate proceedings pending determination of a civil case against the administratri$.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. 2. Part of estate from which debt paid when provision made by will. - I! *+e *es*$* % 3$6es "% )#s# ' /1 +#s ,#ll0 % &es#('$*es *+e es*$*e * /e $""% "%#$*e& ! % *+e "$13e'* ! &e/*s0 *+e e7"e'ses ! $&3#'#s*%$*# '0 % *+e !$3#l1 e7"e'ses0 *+e1 s+$ll /e "$#& $cc %&#'( * *+e "% )#s# 's ! *+e ill; but if the provisions made by the ill or the estate appropriated, is not sufficient for that purpose, such part of the estate of the testator, real or personal, as is not disposed of by ill, if any, shall be appropriated for that purpose.

Although the testator has ackno ledged a specific debts in his

ill, the creditor is not relieved thereby from the duty of filing his claim in the testate or intestate proceeding, other ise that claim ill be barred.

Sec. 2. Personalty first chargeable for debts& then realty. - )he personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and expenses; $'& if said personal estate is not sufficient for that purpose, or its sale would redound to the detriment of the participants of the estate, the whole of the real estate not disposed of by will, or so much thereof as is necessar1, may be sold, mortgaged, or other ise encumbered for that purpose by the e$ecutor or administrator, after obtaining the authority of the court therefor. A'1 &e!#c#e'c1 s+$ll /e 3e* /1 c '*%#/u*# 's #' $cc %&$'ce ,#*+ *+e "% )#s# 's ! sec*# ' > ! *+#s %ule. .he realty of the decedent is liable for debts and e$penses in the follo ing:

4hen the personal estate of the decedent is not sufficient for that purpose; 4here the sale of such personality ould be to the detriment of the participants of the estate; 5ere, only so much of the realty as is necessary may be sold, mortgage, or other ise encumbered for the purpose of payment by the e$ecutor or administrator.

Sec. ;. Estate to be retained to meet contingent claims. - I! *+e c u%* #s s$*#s!#e& *+$* $ c '*#'(e'* cl$#3 &ul1 !#le& #s )$l#&0 it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute 0 %0 #! *+e es*$*e #s #'s l)e'*0 su!!#c#e'* * "$1 $ " %*# ' e:u$l * *+e &#)#&e'& ! *+e *+e% c%e&#* %s. Sec. =. )ow contingent claim becoming absolute in two years allowed and paid' Action against distributees later. 'f such contingent claim becomes absolute and is presented to the court, or to the executor or administrator, within two (*) years from the time limited for other creditors to present their claims, it may be allowed by the court if not disputed by the executor or administrator, $'&0 #! &#s"u*e&0 #* 3$1 /e "% )e& $'& $ll ,e& % &#s$ll ,e& /1 *+e c u%* $s *+e !$c*s 3$1 ,$%%$'*. I! *+e c '*#'(e'* cl$#3 #s $ll ,e&0 *+e c%e&#* % s+$ll %ece#)e "$13e'* * *+e s$3e e7*e'* $s *+e *+e% c%e&#* %s #! *+e es*$*e %e*$#'e& /1 *+e e7ecu* % % $&3#'#s*%$* % #s su!!#c#e'*. Bu* #! *+e cl$#3 #s ' * s "%ese'*e&0 $!*e% +$)#'( /ec 3e $/s lu*e0 ,#*+#' s$#& *, ?2B 1e$%s0 $'& $ll ,e&0 *+e $sse*s %e*$#'e& #' *+e +$'&s ! *+e e7ecu* % % $&3#'#s*%$* %0 ' * e7+$us*e& #' *+e "$13e'* ! cl$#3s0 s+$ll /e &#s*%#/u*e& /1 *+e %&e% ! *+e c u%* * *+e "e%s 's e'*#*le& * *+e s$3e< /u* *+e $sse*s s &#s*%#/u*e& 3$1 s*#ll /e $""l#e& * *+e "$13e'* ! *+e cl$#3 ,+e' es*$/l#s+e&0 $'& *+e c%e&#* % 3$1 3$#'*$#' $' $c*# ' $($#'s* *+e &#s*%#/u*ees * %ec )e% *+e &e/*0 $'& suc+ &#s*%#/u*ees $'& *+e#% es*$*es s+$ll /e l#$/le ! % *+e &e/* #' "% " %*# ' * *+e es*$*e *+e1 +$)e %es"ec*#)el1 %ece#)e& !% 3 *+e "% "e%*1 ! *+e &ece$se&. )f the contingent claim matures after e$piration of the t o years, the creditor may sue the distributes, ho are liable in proportion to the shares in the estate respectively received by them. .he contingent claims must first have been established and allo ed in the probate court before the creditors can file an action directly against the distributees.

Sec. >. (ourt to fix contributive shares where devisees& legatees& or heirs have been in possession. - 9+e%e &e)#sees0 le($*ees0 % +e#%s +$)e e'*e%e& #'* " ssess# ' ! " %*# 's ! *+e es*$*e /e! %e *+e &e/*s $'& e7"e'ses +$)e /ee' se**le& $'& "$#&0 $'& +$)e /ec 3e l#$/le * c '*%#/u*e ! % *+e "$13e'* ! suc+ &e/*s $'& e7"e'ses0 *+e c u%* +$)#'( 8u%#s&#c*# ' ! *+e es*$*e 3$10 /1 %&e% ! % *+$* "u%" se0 $!*e% +e$%#'(0 se**le *+e $3 u'* ! *+e#% se)e%$l l#$/#l#*#es0 $'& %&e% + , 3uc+ $'& #' ,+$* 3$''e% e$c+ "e%s ' s+$ll c '*%#/u*e0 $'& 3$1 #ssue e7ecu*# ' $s c#%cu3s*$'ces %e:u#%e.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

"ven after the partition of an estate, the heirs and distributees are liable individually for the payment of all la ful outstanding claims against the estate in proportion to the amount or value of the property they have respectively received from the estate. A legacy is not a debt of the estate and indeed, legatees are among those against hom e$ecution is authorized to be issued.

Sec. 7. 0rder of payment if estate insolvent. - I! *+e $sse*s ,+#c+ c$' /e $""% "%#$*e& ! % *+e "$13e'* ! &e/*s $%e ' * su!!#c#e'* ! % *+$* "u%" se0 *+e e7ecu* % % $&3#'#s*%$* % s+$ll "$1 *+e &e/*s $($#'s* *+e es*$*e0 /se%)#'( *+e "% )#s# 's ! A%*#cles 1C=A $'& 222A * 22=1 ! *+e C#)#l C &e. *efer to 3((. Sec. @. 3ividends to be paid in proportion to claims. - I! *+e%e $%e ' $sse*s su!!#c#e'* * "$1 *+e c%e&#*s ! $'1 'e cl$ss ! c%e&#* %s $!*e% "$1#'( *+e c%e&#*s e'*#*le& * "%e!e%e'ce )e% #*0 e$c+ c%e&#* % ,#*+#' suc+ cl$ss s+$ll /e "$#& $ &#)#&e'& #' "% " %*# ' * +#s cl$#3. N c%e&#* % ! $'1 'e cl$ss s+$ll %ece#)e $'1 "$13e'* u'*#l *+ se ! *+e "%ece&#'( cl$ss $%e "$#&. Sec. A. Estate of insolvent nonresident& how disposed of. - I' c$se $&3#'#s*%$*# ' #s *$6e' #' *+e P+#l#""#'es ! *+e es*$*e ! $ "e%s ' ,+ ,$s $* *+e *#3e ! +#s &e$*+ $' #'+$/#*$'* ! $' *+e% c u'*%10 $'& ,+ &#e& #'s l)e'*0 his estate found in the +hilippines shall, as far as practicable, be so disposed of that his creditors here and elsewhere may receive each an e%ual share, in proportion to their respective credits. Sec. 1C. When and how claim proved outside the Philippines against insolvent resident6s estate paid. - I! #* appears to the court having jurisdiction that claims have been duly proven in another country against the estate of an insolvent ho as at the time of his death an inhabitant of the %hilippines0 $'& *+$* the executor or administrator in the +hilippines had knowledge of the presentation of such claims in such country and an opportunity to contest their allowance, *+e c u%* s+$ll %ece#)e $ ce%*#!#e& l#s* ! suc+ cl$#3s0 ,+e' "e%!ec*e& #' suc+ c u'*%10 $'& $&& *+e s$3e * *+e l#s* ! cl$#3s "% )e& $($#'s* *+e &ece$se& "e%s ' #' *+e P+#l#""#'es s *+$* $ 8us* &#s*%#/u*# ' ! *+e ,+ le es*$*e 3$1 /e 3$&e e:u$ll1 $3 '( $ll #*s c%e&#* %s $cc %&#'( * *+e#% %es"ec*#)e cl$#3s< /u* *+e /e'e!#* ! *+#s $'& *+e "%ece&#'( sec*# 's shall not be e$tended to the creditors in another country if the property of such deceased person there found is not e&ually apportioned to the creditors residing in the %hilippines and the other creditors, according to their respective claims. Sec. 11. 0rder for payment of debts. - Be! %e *+e e7"#%$*# ' ! *+e *#3e l#3#*e& ! % *+e "$13e'* ! *+e &e/*s0 *+e c u%* s+$ll %&e% *+e "$13e'* *+e%e !0 $'& *+e &#s*%#/u*# ' ! *+e $sse*s %ece#)e& /1 *+e e7ecu* % % $&3#'#s*%$* % ! % *+$* "u%" se $3 '( *+e c%e&#* %s0 $s *+e c#%cu3s*$'ces ! *+e es*$*e %e:u#%e $'& #' $cc %&$'ce ,#*+ *+e "% )#s# 's ! *+#s %ule. Sec. 12. 0rders relating to payment of debts where appeal is ta+en. - I! $' $""e$l +$s /ee' *$6e' !% 3 $ &ec#s# ' ! *+e c u%* c 'ce%'#'( $ cl$#30 the court may suspend the order for the payment of the debts or may order the distribution among the creditors hose claims are definitely allo ed, leaving in the hands of the e$ecutor or administrator sufficient assets to pay the claim disputed and appealed. 9+e' $ &#s"u*e& cl$#3 #s !#'$ll1 se**le& *+e c u%* +$)#'( 8u%#s&#c*# ' ! *+e es*$*e s+$ll %&e% *+e s$3e * /e "$#& u* ! *+e $sse*s %e*$#'e& * *+e s$3e e7*e'* $'& #' *+e s$3e "% " %*# ' ,#*+ *+e cl$#3s ! *+e% c%e&#* %s. Sec. 12. When subse-uent distribution of assets ordered. - I! the hole of the debts are not paid on the first distribution, and if the hole assets are not distributed, or other assets after ards come to the hands of the e$ecutor or administrator0 *+e c u%* 3$1 !% 3 *#3e * *#3e 3$6e !u%*+e% %&e%s ! % *+e &#s*%#/u*# ' ! $sse*s. Sec. 1;. (reditors to be paid in accordance with terms of order. - 9+e' $' %&e% #s 3$&e ! % *+e &#s*%#/u*# ' ! $sse*s $3 '( *+e c%e&#* %s0 *+e e7ecu* % % $&3#'#s*%$* % s+$ll0 $s s ' $s *+e *#3e ! "$13e'* $%%#)es0 "$1 *+e c%e&#* %s *+e $3 u'*s ! *+e#% cl$#3s0 % *+e &#)#&e'& *+e%e '0 #' $cc %&$'ce ,#*+ *+e *e%3s ! suc+ %&e%. Sec. 1=. 1ime for paying debts and legacies fixed& or extended after notice& within what periods. - O' (%$'*#'( le**e%s *es*$3e'*$%1 % $&3#'#s*%$*# ' *+e c u%* s+$ll $ll , * *+e e7ecu* % % $&3#'#s*%$* % $ *#3e ! % &#s" s#'( ! *+e es*$*e $'& "$1#'( *+e &e/*s $'& le($c#es ! *+e &ece$se&0 ,+#c+ s+$ll ' *0 #' *+e !#%s* #'s*$'ce0 e7cee& 'e ?1B 1e$%; but the court may, on application of the e$ecutor or administrator and after hearing on such notice of the time and place therefor given to all persons interested as it shall direct, e$tend the time as the circumstances of the estate re&uire

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

not e$ceeding si$ (A) months for a single e$tension nor so that the e$ecutor or administrator shall e$ceed t o (9) years. hole period allo ed to the original

Sec. 1>. Successor of dead executor or administrator may have time extended on notice within certain period. - 4hen an e$ecutor or administrator dies, and a ne administrator of the same estate is appointed0 *+e c u%* 3$1 e7*e'& *+e *#3e $ll ,e& ! % *+e "$13e'* ! *+e &e/*s % le($c#es /e1 '& *+e *#3e $ll ,e& * *+e %#(#'$l e7ecu* % % $&3#'#s*%$* %0 not e$ceeding si$ (A) months at a time and not e$ceeding si$ (A) months beyond the time hich the court might have allo ed to such original e$ecutor or administrator; and notice shall be given of the time and place for hearing such application, as required in the last preceding section. !peedy settlement of the estate as ruling spirit of probate la . "$ecution may issue only here the devisees, legatees, or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of the debts and e$penses of administration and it is later ascertained that there are such debts and e$penses to be paid, in such case the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order ho much and in hat manner each person shall contribute, and may issue if circumstances re&uire.

RULE @A SALES0 MORTGAGES0 AND OT.ER ENCUMBRANCES OF PROPERTY OF DECEDENT Sec. 1. 0rder of sale of personalty. - U" ' *+e $""l#c$*# ' ! *+e e7ecu* % % $&3#'#s*%$* %0 $'& ' ,%#**e' ' *#ce * *+e +e#%s $'& *+e% "e%s 's #'*e%es*e&0 the court may order the hole or a part of the personal estate to be sold, if it appears necessary for the purpose of paying debts, e$penses of administration, or legacies, or for the preservation of the property. )t is only the court that has po er to authorize the sale. A po er of attorney e$ecuted by the heirs in favor of the administrator gives no legal effect to the sale made ithout authority of the court.

Sec. 2. When court may authori5e sale& mortgage& or other encumbrance of realty to pay debts and legacies through personalty not exhausted. - 4hen the personal estate of the deceased is not sufficient to pay the debts, e$penses of administration, and legacies, % where the sale of such personal estate may injure the business or other interests of those interested in the estate 0 $'& where a testator has not otherwise made sufficient provision for the payment of such debts, expenses, and legacies0 *+e c u%*0 ' *+e $""l#c$*# ' ! *+e e7ecu* % % $&3#'#s*%$* % $'& ' ,%#**e' ' *#ce * *+e +e#%s0 &e)#sees0 $'& le($*ees %es#&#'( #' *+e P+#l#""#'es0 may authorize the e$ecutor or administrator to sell, mortgage, or other ise encumber so much as may be necessary of the real estate, in lieu of personal estate, for the purpose of paying such debts, e$penses, and legacies, if it clearly appears that such sale, mortgage, or encumbrances ould be beneficial to the persons interested< $'& #! $ "$%* c$'' * /e s l&0 3 %*($(e&0 % *+e%,#se e'cu3/e%e& ,#*+ u* #'8u%1 * *+ se #'*e%es*e& #' *+e %e3$#'&e%0 *+e $u*+ %#*1 3$1 /e ! % *+e s$le0 3 %*($(e0 % *+e% e'cu3/%$'ce ! *+e ,+ le ! suc+ %e$l es*$*e0 % s 3uc+ *+e%e ! $s #s 'ecess$%1 % /e'e!#c#$l u'&e% *+e c#%cu3s*$'ces. Sec. 2. Persons interested may prevent such sale& etc.& by giving bond. - ,o such authority to sell, mortgage, or otherwise encumber real or personal estate shall be granted #! $'1 "e%s ' #'*e%es*e& #' *+e es*$*e (#)es $ / '&0 #' $ su3 * /e !#7e& /1 *+e c u%*0 c '&#*# 'e& * "$1 *+e &e/*s0 e7"e'ses ! $&3#'#s*%$*# '0 $'& le($c#es ,#*+#' suc+ *#3e $s *+e c u%* &#%ec*s< $'& suc+ / '& s+$ll /e ! % *+e secu%#*1 ! *+e c%e&#* %s0 $s ,ell $s ! *+e e7ecu* % % $&3#'#s*%$* %0 $'& 3$1 /e "% secu*e& ! % *+e /e'e!#* ! e#*+e%. Sec. ;. When court may authori5e sale of estate as beneficial to interested persons' 3isposal of proceeds. - $hen it appears that the sale of the whole or a part of the real or personal estate, will be beneficial to the heirs, devisees, legatees, and other interested persons0 *+e c u%* 3$10 u" ' $""l#c$*# ' ! *+e e7ecu* % % $&3#'#s*%$* % $'& ' ,%#**e' ' *#ce * *+e +e#%s0 &e)#sees $'& le($*ees ,+ $%e #'*e%es*e& #' *+e es*$*e * /e s l&0 authorize the e$ecutor or administrator to sell the hole or a part of said estate, although not necessary to pay debts, legacies, or e$penses of administration; but such authority shall not be granted if inconsistent with the provisions of a will. In case of such sale, the proceeds shall be assigned to the persons entitled to the estate in the proper proportions.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. =. When court may authori5e sale& mortgage& or other encumbrance of estate to pay debts and legacies in other countries. - 4hen the sale of personal estate, or the sale, mortgage, or other encumbrance of real estate is not necessary to pay the debts, e$penses of administration, or legacies in the %hilippines, but it appears from records and proceedings of a probate court in another country that the estate of the deceased in such other country is not sufficient to pay the debts, e$penses of administration, and legacies there0 *+e c u%* +e%e 3$1 $u*+ %#4e *+e e7ecu* % % $&3#'#s*%$* % * sell *+e "e%s '$l es*$*e % * sell0 3 %*($(e0 % *+e%,#se e'cu3/e% *+e %e$l es*$*e ! % *+e "$13e'* ! &e/*s % le($c#es #' *+e *+e% c u'*%10 #' *+e s$3e 3$''e% $s ! % *+e "$13e'* ! &e/*s % le($c#es #' *+e P+#l#""#'es. *e&uisites of ritten notice of application as ell as the time and place of hearing to be served upon the heirs, devisees and legatees residing in the %hilippines is mandatory, ithout hich the encumbrance is void. )t does not follo that for purposes of complying ith the re&uirement of notice, notice to the father is notice to the children. )f the heirs ere duly represented by counsel or by a guardian ad litem in case of minors, the notice may be given to such counsel or guardian ad litem. *eason for mandatory re&uirement: heirs are the presumptive o ners; they are the persons directly affected by the sale or mortgage therefore cannot be deprived of the property e$cept as provided by la .

Sec. >. When court may authori5e sale& mortgage& or other encumbrance of realty ac-uired on execution or foreclosure. - T+e c u%* 3$1 $u*+ %#4e $' e7ecu* % % $&3#'#s*%$* % * sell0 3 %*($(e0 % *+e%,#se e'cu3/e% %e$l es*$*e $c:u#%e& /1 +#3 ' e7ecu*# ' % ! %ecl su%e s$le0 u'&e% *+e s$3e c#%cu3s*$'ces $'& u'&e% *+e s$3e %e(ul$*# 's $s "%esc%#/e& #' *+#s %ule ! % *+e s$le0 3 %*($(e0 % *+e% e'cu3/%$'ce ! *+e% %e$l es*$*e. Sec. 7. 7egulations for granting authority to sell& mortgage& or otherwise encumber estate. T+e c u%* +$)#'( 8u%#s&#c*# ' ! *+e es*$*e ! *+e &ece$se& 3$1 $u*+ %#4e *+e e7ecu* % % $&3#'#s*%$* % * sell "e%s '$l es*$*e0 % * sell0 3 %*($(e0 % *+e%,#se e'cu3/e% %e$l es*$*e< #' c$ses "% )#&e& /1 *+ese %ules $'& ,+e' #* $""e$%s 'ecess$%1 % /e'e!#c#$l0 u'&e% *+e ! ll ,#'( %e(ul$*# 's?$B T+e e$ecutor or administrator shall file a ritten petition setting forth the debts due from the deceased, the e$penses of administration, the legacies, the value of the personal estate, the situation of the estate to be sold, mortgaged, or other ise encumbered, and such other facts as sho that the sale, mortgage, or other encumbrance is necessary or beneficial< ?/B T+e court shall thereupon fix a time and place for hearing such petition, and cause notice stating the nature of the petition, the reason for the same, and the time and place of hearing, to be given personally or by mail to the persons interested, and may cause such further notice to be given, by publication or other ise, as it shall deem proper; ?cB I! *+e court re&uires it, the e$ecutor or administrator shall give an additional bond, in such sum as the court directs, conditioned that such e$ecutor or administrator ill account for the proceeds of the sale, 3 %*($(e0 % *+e% e'cu3/%$'ce< ?&B I! *+e re%uirements in the preceding subdivisions of this section have been complied with, the court, by order stating such compliance, may authorize the e$ecutor or administrator to sell, mortgage, or other ise encumber, in proper cases, such part of the estate as is deemed necessary0 $'& #' c$se ! s$le *+e c u%* 3$1 $u*+ %#4e #* * /e "u/l#c % "%#)$*e0 $s , ul& /e 3 s* /e'e!#c#$l * $ll "$%*#es c 'ce%'e&. T+e e7ecu* % % $&3#'#s*%$* % s+$ll /e !u%'#s+e& ,#*+ $ ce%*#!#e& c "1 ! suc+ %&e%< ?eB I! *+e es*$*e #s * /e s l& $* $uc*# '0 *+e 3 &e ! (#)#'( ' *#ce ! *+e *#3e $'& "l$ce s$le s+$ll /e ( )e%'e& /1 *+e "% )#s# 's c 'ce%'#'( ' *#ce ! e7ecu*# ' s$le< ! *+e

?!B T+e%e s+$ll /e %ec %&e& #' *+e %e(#s*%1 ! &ee&s ! *+e "% )#'ce #' ,+#c+ *+e %e$l es*$*e *+us s l&0 3 %*($(e&0 % *+e%,#se e'cu3/e%e& #s s#*u$*e&0 $ certified copy of the order of the court, together ith the deed of the e$ecutor or administrator for such real estate, hich shall be as valid as if the deed had been e$ecuted by the deceased in his lifetime.

*egulations here are mandatory and apply to both testate and intestate proceedings. Biolation
thereof renders the order of sale void.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

;ailure to receive notice here it appears that she had actual kno ledge of the application is not sufficient legal cause to annul the sale ordered by court. A sale of land under judicial administration is not effective until approved by the court, and, although leave of court to sell the property has been obtained, a purported sale hich has not been approved and hich varies materially from the authority granted cannot be made on the basis of an action by the purchaser for specific performance. Any unauthorized disposition does not bind the estate and is null and void, and title does not pass to the purchaser. 4hen the estate of the deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it ithout prior approval of the court. )t is the probate court that has the po er to authorize and>or approve the sale, hence, a fortiori, it is said court that can declare it null and void for as long as the proceedings had not been closed or terminated. An administratri$ of an estate already subject of a special proceeding pending before the probate court cannot enjoy blanket authority to dispose of real properties as she pleases. )t is ithin the jurisdiction of a probate court to approve the sale of properties of a deceased person by his prospective heirs before final adjudication. .he probate court has no jurisdiction to make pronouncement regarding the e$istence or non+ e$istence of encumbrances or cancel a mortgage on real property in its order approving the sale of the estate under administration. .he sale made by an heir of his share in an inheritance, subject to the result of the pending administration is valid and in no ay stands in the ay of such administration. *eference to judicial approval cannot adversely affect the substantive rights of the heirs to dispose of their ideal share in the co+heirship and>or co+o nership among the heirs An heir can certainly sell hatever right, interest, or participation he may have in the property under administration. .he effect of the alienation or the mortgage, ith respect to the co+o ners, shall be limited to the portion hich may be allotted to him in the division upon the termination of the co+o nership.

Sec. @. When a court may authori5e conveyance or realty which deceased contracted to convey' .otice' Effect of deed. - 9+e%e *+e deceased was in his lifetime under contract, binding in law, to deed real property, or an interest therein, the court having jurisdiction of the estate may, ' $""l#c$*# ' ! % *+$* "u%" se0 $u*+ %#4e *+e e7ecu* % % $&3#'#s*%$* % * c ')e1 suc+ "% "e%*1 $cc %&#'( * suc+ c '*%$c*0 % ,#*+ suc+ 3 &#!#c$*# 's $s $%e $(%ee& u" ' /1 *+e "$%*#es $'& $""% )e& /1 *+e c u%*< and if the contract is to convey real property to the e$ecutor or administrator, the clerk of the court shall e$ecute the deed . )he deed executed by such executor, administrator, or clerk of court shall be as effectual to convey the property as if executed by the deceased in his lifetime; /u* ' suc+ c ')e1$'ce s+$ll /e $u*+ %#4e& u'*#l ' *#ce ! *+e $""l#c$*# ' ! % *+$* "u%" se +$s /ee' (#)e' "e%s '$ll1 % /1 3$#l * $ll "e%s 's #'*e%es*e&0 $'& such further notice has been given& by publication or otherwise& as the court deems proper' nor if the assets in the hands of the executor or administrator will thereby be reduced so as to prevent a creditor from receiving his full debt or diminish his dividend. Sec. A. When court may authori5e conveyance of lands which deceased held in trust. - $here the deceased in his lifetime held real property in trust for another person, the court ma 10 $!*e% ' *#ce (#)e' $s %e:u#%e& #' *+e l$s* "%ece&#'( sec*# '0 $u*+ %#4e *+e e7ecu* % % $&3#'#s*%$* % * &ee& suc+ "% "e%*1 * *+e "e%s '0 % +#s e7ecu* % % $&3#'#s*%$* %0 ! % ,+ se use $'& /e'e!#* #* ,$s s +el&< $'& *+e c u%* 3$1 %&e% *+e e7ecu*# ' ! suc+ *%us*0 ,+e*+e% c%e$*e& /1 &ee& % /1 l$,. A contract of sale is not invalidated by the fact that it is subject to probate court approval, but the same remains binding on the seller+heir, but not on the other heirs ho have not given their consent to it. A probate court has jurisdiction over matters incidental and collateral to the e$ercise of its recognized po ers. .he rule does not limit to the e$ecutor or administrator the right to file the application for authority to sell, mortgage or other ise encumber realty administration as it inures to any person ho stands to be benefited or injured by the judgment or to be entitled to the avails of the suit. *ule re&uiring court approval for any disposition merely means that the property may be take out of custodial egis, but only ith courts permission. .he authority of convey here can be given only after notice of the application for that purpose has been given to all persons interested, other ise, the order authorizing the conveyance as ell as the conveyance itself is null and void.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

RULE AC DISTRIBUTION AND PARTITION OF T.E ESTATE Sec. 1. When order for distribution of residue made. - 4hen the debts, funeral charges, and e$penses of administration, the allo ance to the ido , and inheritance ta$, if any, chargeable to the estate in accordance ith la , have been paid, the court0 on the application of the e$ecutor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to hich each is entitled, and such person may demand and recover their respective shares from the e$ecutor or administrator, or any other person having the same in his possession . If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. N &#s*%#/u*# ' s+$ll /e $ll ,e& u'*#l *+e "$13e'* ! *+e /l#($*# 's $/ )e 3e'*# 'e& +$s /ee' 3$&e % "% )#&e& ! %0 unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs Sec. 2. 8uestions as to advancement to be determined. - Eues*# 's $s * $&)$'ce3e'* 3$&e0 % $lle(e& * +$)e /ee' 3$&e0 /1 *+e &ece$se& * $'1 +e#% 3$1 /e +e$%& $'& &e*e%3#'e& /1 *+e c u%* +$)#'( 8u%#s&#c*# ' ! *+e es*$*e "% cee&#'(s< $'& *+e !#'$l %&e% ! *+e c u%* *+e%e ' s+$ll /e /#'&#'( ' *+e "e%s ' %$#s#'( *+e :ues*# 's $'& ' *+e +e#%. Sec. 2. $y whom expenses of partition paid. - I! $* *+e *#3e ! *+e &#s*%#/u*# ' *+e e7ecu* % % $&3#'#s*%$* % +$s %e*$#'e& su!!#c#e'* e!!ec*s #' +#s +$'&s ,+#c+ 3$1 l$,!ull1 /e $""l#e& ! % *+e e7"e'ses ! "$%*#*# ' ! *+e "% "e%*#es &#s*%#/u*e&0 suc+ e7"e'ses ! "$%*#*# ' 3$1 /e "$#& /1 suc+ e7ecu* % % $&3#'#s*%$* % ,+e' #* $""e$%s e:u#*$/le * *+e c u%* $'& ' * #'c 's#s*e'* ,#*+ *+e #'*e'*# ' ! *+e *es*$* %< *+e%,#se0 *+e1 s+$ll /e "$#& /1 *+e "$%*#es #' "% " %*# ' * *+e#% %es"ec*#)e s+$%es % #'*e%es* #' *+e "%e3#ses0 $'& *+e $"" %*# '3e'* s+$ll /e se**le& $'& $ll ,e& /1 *+e c u%*0 $'&0 #! $'1 "e%s ' #'*e%es*e& #' *+e "$%*#*# ' & es ' * "$1 +#s "% " %*# ' % s+$%e0 *+e c u%* 3$1 #ssue $' e7ecu*# ' #' *+e '$3e ! *+e e7ecu* % % $&3#'#s*%$* % $($#'s* *+e "$%*1 ' * "$1#'( ! % *+e su3 $ssesse&. Approval of a project of partition does not necessarily terminate administration. =efore a court can make a partition and distribution of the estate of a deceased, it must first settle the estate in a special proceeding instituted for the purpose. .he distribution of the estate properties can only be made: #. After all the debts, funeral charges, e$penses of administration, allo ance to the ido and estate ta$ have been paid; 2. =efore payment of said obligations only if the distributees or any of them gives a bond in a sum fi$ed by the court conditioned upon the payment of said obligations ithin such time as the court directs, or hen provision is made to meet those obligations. %roceedings for the settlement of estate is deemed ready for final closure: #. 4hen there should have been issued already an order of distribution or assignment of the estate of the deceased to those entitled; 9. !uch order shall not be issued until it is sho n that the debts, funeral e$penses, etc have been paid /. !uch order is usually upon proper and specific application for the purpose of the interested party, not of the court. .he follo ing stages must be follo ed before there could be a distribution of the estate: a. %ayment of obligations -ebts, funeral charges, inheritance ta$, if any chargeable to the estate in accordance there is a residue, this may be distributed among the heirs. ith la ; if

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

.he distribution of the assets may only be ordered under any of the follo ing: 4hen the inheritance ta$, among others is paid; 4hen a sufficient bond is given to meet the payment of the inheritance ta$ and all other obligations enumerated in the provision or; 4hen payment of the said ta$ and all other obligations mentioned in said rule has been provided for. .he heirs right of o nership over the properties of his father is merely inchoate as long as the estate has not been fully settled and partitioned. .he probate of the ill is conclusive as to its due e$ecution and e$trinsic validity and settles only the &uestion of hether the testator, being of sound mind, freely e$ecuted it in accordance ith the formalities prescribed by la . Cuestions as to the intrinsic validity and efficacy of the provisions of the ill, the legality of any devise or legacy may be raised even after the ill has been authenticated.

b. -eclaration of heirs A separate action for the declaration of heirs is not proper. After, not before the declaration of heirs is made, may the residue be distributed and delivered to the heirs.

b.#. =road po ers of the probate court: any challenge to the validity of a ill, any objection to the authentication thereof, and every demand or claim hich any heir, legatee or party interested in a testate or intestate succession may make, must be acted upon and decided ithin the same special proceedings, not in a separate action; and the same having jurisdiction in the administration of the estate shall take cognizance of the &uestion raised, inasmuch as hen the day comes he ill be called upon to make distribution and adjudication of the property to the interested parties.

b.9. po er of probate court to determine right of natural child: action for compulsory recognition of a natural child may be instituted and decided in the proceeding for the settlement of the estate; adoption decree cannot be assailed in the settlement proceedings because it cannot be attacked collaterally. to the residue should be made after the payment

b./. declaration of heir or of such entitled by la of all debts, and other charges

b.8..he probate court in the e$ercise of its jurisdiction to distribute the estate, has the po er to determine the proportion or parts to hich each distributee is entitled. =ut the right of the heirs to specific distributive share of inheritance does not become finally terminable until all the debts of the estate are paid. .he net estate of the deceased must be ascertained by the deducting all payable obligations and charges from the value of the property o ned by the deceased at the time of his death, then, all donations subject to collation ould be added to it. Cuestions as to advancement made or alleged to have been made by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings, and the final order of the court thereon shall be binding on the person raising the &uestions and on the heir. .he creditor of an heir of a deceased person is entitled to collect his claim out of the property hich pertains by inheritance to said heir, only after all debts of the testate or intestate succession have been paid and hen the net assets that are divisible among the heirs are kno n, because the debts of the deceased must be paid before the heirs can inherit.

b.D. .he rule allo s preliminary attachment of the interest of a party in property belonging to the estate of the decedent hether as heir, legatee, or devisee, by serving the e$ecutor or administrator or other personal representative of the deceased ith a copy of the order and notice that said interest is attached.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

A project of partition is merely a proposal for the distribution of the hereditary estate hich the court may accept or reject. )t is the court that makes that distribution of the estate and determines the persons entitled thereto. )t is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties. .he court ac&uires jurisdiction over all persons interested, through the publication of the notice prescribed and any order that may be entered therein is binding against all of them. .he only instance here a party interested in a probate proceeding may have a final li&uidation set aside is hen he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. .he better practice to secure relief is reopening of the same case by proper motion ithin the reglementary period, instead of an independent action. )f decree is erroneous, it should be corrected by opportune appeal, for once it becomes final, its binding effect it like any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud. A court should not interfere ith probate proceedings pending in a co+e&ual court. As long as the order of the distribution of the estate has not been complied ith, the probate proceedings cannot be deemed closed and terminated, because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed. .he intestate proceedings although closed and terminated, can still be reopened ithin the prescriptive period upon petition by the preterited heir. .he settlement of the estate is deemed terminated only upon final distribution of the estate. 2rder hich determines the distributive shares of the heirs of a deceased person is appealable. !( once allo ed the continuation of a separate action to annul the project of partition, since the estate proceedings have been closed and terminated for over three years. .he non+distribution of the estate is not a ground for the reopening of the testate proceedings. A preterited heir as allo ed to file an action to annul the project of partition here the estate proceedings have already been closed. A spurious child is allo ed to file a separate action to establish filiation and at the same time enforce his hereditary rights. .he administration proceedings may not be closed if there is an action by third persons against the administrator and the heirs for the recovery of property involved in the proceedings and in such case the closure must ait until the ordinary civil action is finally terminated. )nstances hen probate court may issue rit of e$ecution(inclusion unius est e$clusion alterius): #. .o satisfy the contributive shares of devisees, legatees and heirs in possession of the decedents estate; 9. .o enforce payment of e$penses of partition; .o satisfy the costs hen a person is cited for e$amination in probate proceedings. .he probate court has the authority to order the issuance of a rit of possession for the recovery of the share by the heir or other interested person from the e$ecutor or administrator or other persons having possession of the property ithout the need of previous demand.

Sec. ;. 7ecording the order of partition of estate. - Ce%*#!#e& c "#es ! !#'$l %&e%s $'& 8u&(3e'*s ! *+e c u%* %el$*#'( * *+e %e$l es*$*e % *+e "$%*#*# ' *+e%e ! s+$ll /e %ec %&e& #' *+e %e(#s*%1 ! &ee&s ! *+e "% )#'ce ,+e%e *+e "% "e%*1 #s s#*u$*e&.

RULE A1 ESC.EATS Sec. 1. When and by whom petition filed. - 9+e' $ "e%s ' &#es #'*es*$*e0 se#4e& ! %e$l % "e%s '$l "% "e%*1 #' *+e P+#l#""#'es0 le$)#'( ' +e#% % "e%s ' /1 l$, e'*#*le& * *+e s$3e0 *+e S l#c#* % Ge'e%$l % +#s %e"%ese'*$*#)e #' /e+$l! ! *+e Re"u/l#c ! *+e P+#l#""#'es0 3$1 !#le $ "e*#*# ' #' *+e C u%* ! F#%s* I's*$'ce ! *+e "% )#'ce ,+e%e *+e &ece$se& l$s* %es#&e& % #'

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

,+#c+ +e +$& es*$*e0 #! +e %es#&e& u* ! *+e P+#l#""#'es0 se**#'( ! %*+ *+e !$c*s0 $'& "%$1#'( *+$* *+e es*$*e ! *+e &ece$se& /e &ecl$%e& esc+e$*e&. "scheat is a proceedings hereby the real and personal property of a deceased person in the %hilippines, become the property of the state upon his death, ithout leaving any ill or legal heirs. .his is a substantial right of the state; a special proceeding hich is commenced by petition, not complaint. .his must be initiated by the government through the !olicitor general. All interested parties especially the actual occupants and the adjacent lot o ners shall be personally notified of the proceeding and given the opportunity to present their valid claims, other ise it ill be reverted to the !tate. A depositary bank should be joined as a respondent in an action for escheat since a decree of escheat ould necessarily deprive it of the use of such deposit, under the la on forfeiture of dormant bank deposits. %etition for escheat may be filed ith the *.( of the province hich he had estate, if he as a non+resident. *e&uisites for filing the petition: #. .he person died intestate; 9. -eceased left no heirs or person by la /. .he deceased left properties. here the deceased last resided or in

entitled to the same

2nce the court ac&uires jurisdiction to hear the petition for escheat by virtue of the publication of the petition for escheat, this jurisdiction cannot be converted into one for distribution of the properties of the decedent.

Sec. 2. 0rder for hearing. - I! *+e "e*#*# ' #s su!!#c#e'* #' ! %3 $'& su/s*$'ce0 *+e c u%*0 /1 $' %&e% %ec#*#'( *+e "u%" se ! *+e "e*#*# '0 s+$ll !#7 $ &$*e $'& "l$ce ! % *+e +e$%#'( *+e%e !0 ,+#c+ &$*e s+$ll /e ' * 3 %e *+$' s#7 ?>B 3 '*+s $!*e% *+e e'*%1 ! *+e %&e%0 $'& s+$ll &#%ec* *+$* $ c "1 ! *+e %&e% /e "u/l#s+e& /e! %e *+e +e$%#'( $* le$s* 'ce $ ,ee6 ! % s#7 ?>B success#)e ,ee6s #' s 3e 'e,s"$"e% ! (e'e%$l c#%cul$*# ' "u/l#s+e& #' *+e "% )#'ce0 $s *+e c u%* s+$ll &ee3 /es*. 'otion to dismiss is allo ed hen petition failed to state the facts hich entitle the petitioner to the remedy prayed for, akin to demurrer to evidence, petition may be conse&uently dismissed.

Sec. 2. )earing and judgment. - U" ' *+e s$*#s!$c* %1 "% ! #' "e' c u%* ' *+e &$*e !#7e& #' *+e %&e% *+$* suc+ %&e% +$s /ee' "u/l#s+e& $s &#%ec*e& $'& *+$* *+e "e%s ' &#e& #'*es*$*e0 se#4e& ! %e$l % "e%s '$l "% "e%*1 #' *+e P+#l#""#'es0 le$)#'( ' +e#% % "e%s ' e'*#*le& * *+e s$3e0 $'& ' su!!#c#e'* c$use /e#'( s+ ,' * *+e c '*%$%10 *+e c u%* s+$ll $&8u&(e *+$* *+e es*$*e ! *+e &ece$se& #' *+e P+#l#""#'es0 $!*e% *+e "$13e'* ! 8us* &e/*s $'& c+$%(es0 s+$ll esc+e$*< $'& s+$ll0 "u%su$'* * l$,0 $ss#(' *+e "e%s '$l es*$*e * *+e 3u'#c#"$l#*1 % c#*1 ,+e%e +e l$s* %es#&e& #' *+e P+#l#""#'es0 $'& *+e %e$l es*$*e * *+e 3u'#c#"$l#*#es % c#*#es0 %es"ec*#)el10 #' ,+#c+ *+e s$3e #s s#*u$*e&. I! *+e &ece$se& 'e)e% %es#&e& #' *+e P+#l#""#'es0 *+e ,+ le es*$*e 3$1 /e $ss#('e& * *+e %es"ec*#)e 3u'#c#"$l#*#es % c#*#es ,+e%e *+e s$3e #s l c$*e&. Suc+ es*$*e s+$ll /e ! % *+e /e'e!#* ! "u/l#c sc+ ls0 $'& "u/l#c c+$%#*$/le #'s*#*u*# 's $'& ce'*e%s #' s$#& 3u'#c#"$l#*#es % c#*#es. T+e c u%*0 $* *+e #'s*$'ce ! $' #'*e%es*e& "$%*10 % ' #*s ,' 3 *# '0 3$1 %&e% *+e es*$/l#s+3e'* ! $ "e%3$'e'* *%us*0 s *+$* 'l1 *+e #'c 3e !% 3 *+e "% "e%*1 s+$ll /e use&. A judgment of escheat as held conclusive upon persons notified by advertisement to all persons interested. "scheats and forfeitures are not favored by la , and the modern rule under statutes regulating escheat proceedings is that the burden of proof rests on the state to prove that the property in &uestion is in all respects liable to escheat. .he right to escheat may be aived, either e$pressly or impliedly.

Sec. ;. When and by whom claim to estate filed. - I! $ &e)#see0 le($*ee0 +e#%0 ,#& ,0 ,#& ,e% % *+e% "e%s ' e'*#*le& * suc+ es*$*e $""e$%s $'& !#les $ cl$#3 *+e%e* ,#*+ *+e c u%* ,#*+#' !#)e ?=B 1e$%s !% 3 *+e &$*e ! suc+ 8u&(3e'*0 suc+ "e%s ' s+$ll +$)e " ssess# ' ! $'& *#*le * *+e s$3e0 % #! s l&0 *+e 3u'#c#"$l#*1 % c#*1 s+$ll /e $cc u'*$/le * +#3 ! % *+e "% cee&s0

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

$!*e% &e&uc*#'( %e$s '$/le c+$%(es ! % *+e c$%e s$#& *#3e s+$ll /e ! %e)e% /$%%e&. ! *+e es*$*e< /u* $ cl$#3 ' * 3$&e ,#*+#'

)f a person legally entitled to the estate of the decedent appears, he should file a claim ith the court ithin D years from the date the property as delivered to the state, other ise, it is barred. )n the absence of jurisdiction to order an escheat due to noncompliance ith jurisdictional re&uirements, the court has no jurisdiction to grant the remedy enabling the devisee, legatee, heir, ido , ido er or other person entitled to the estate to appear ithin a specific period from the date of the decree of escheat and file a claim to the estate.

Sec. =. 0ther actions for escheat. - U'*#l *+e%,#se "% )#&e& /1 l$,0 $c*# 's ! % %e)e%s# ' % esc+e$* ! "% "e%*#es $l#e'$*e& #' )# l$*# ' ! *+e C 's*#*u*# ' % ! $'1 s*$*u*e s+$ll /e ( )e%'e& /1 *+#s %ule0 e7ce"* *+$* *+e $c*# ' s+$ll /e #'s*#*u*e& #' *+e "% )#'ce ,+e%e *+e l$'& l#es #' ,+ le % #' "$%*.

"scheat and reversion have the same effects. .hey only differ in the enabling la , reversion is under public land act. A proceeding to escheat or for reversion of lands held in violation of la s prohibiting alien o nership has been held to be a civil action rather than a criminal proceeding.

:uardianship+ po er of protective authority given by la and imposed on an individual ho is free and in the enjoyment of his rights, over one hose eakness on account of his age or other infirmity renders him unable to protect himself. :uardian+ a person in hom the la has entrusted the custody and control of the person or estate or both of an infant, insane or other person incapable of managing his o n affairs. A trust relation; =ased on parens patriae; %urpose is to safeguard the right and interest of minors and incompetent persons; 7inds: guardian of the person, guardian of the property, general guardians, legal guardians, guardian ad litem, judicial guardian. :uardianship of minors is under the e$clusive jurisdiction of the family courts, incompetent are still ith *.(. *ule on :uardianship of minors is governed by A' 3o. 0/8+09+0D !( *ule of guardianship of incompetents, other than minors is governed by *ule E9+EF. !alient features of A' 3o. 0/8+09+0D !(: %arents shall e$ercise joint legal guardianship over the person and property of the minor ithout need of court appointment of if the property of the child is orth 9k or less. (subject to / e$ceptions) 4ho may file petition: any relative or other person on behalf a minor; or the minor himself if fourteen years of age or over; )f minor needs to be hospitalized, may be filed by the !ecretary of !ocial secretary of health. 4here to file: ;amily court of the province or city elfare and development of hile those of other

here the minor actually resides

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

)f resident of foreign country, in the ;amily (ourt of province situated. here his property or any part thereof is

RULE A2 VENUE Sec. 1. Where to institute proceedings. - Gu$%&#$'s+#" ! *+e "e%s ' % es*$*e ! $ 3#' % % #'c 3"e*e'* 3$1 /e #'s*#*u*e& #' *+e C u%* ! F#%s* I's*$'ce ! *+e "% )#'ce0 % #' *+e 8us*#ce ! *+e "e$ce c u%* ! *+e 3u'#c#"$l#*10 % #' *+e 3u'#c#"$l c u%* ! *+e c+$%*e%e& c#*1 ,+e%e *+e 3#' % % #'c 3"e*e'* "e%s ' %es#&es0 $'& if he resides in a foreign country, in the (ourt of ;irst )nstance of the province herein his property or part thereof is situated; provided, ho ever, that here the value of the property of such minor or incompetent e$ceeds the jurisdiction of the justice of the peace or municipal court, the proceedings shall be instituted in the (ourt of ;irst )nstance. I' *+e C#*1 ! M$'#l$0 *+e "% cee&#'(s s+$ll /e #'s*#*u*e& #' *+e Ju)e'#le $'& D 3es*#c Rel$*# 's C u%*. Authority of the guardian may e$tend only to the property of the minor or incompetent *esidence is normally understood to mean the domicile of the minor or incompetent. Sec. 2. /eaning of word 9incompetent.9 - U'&e% *+#s %ule0 *+e , %& 9incompetent9 #'clu&es "e%s 's su!!e%#'( *+e "e'$l*1 ! c#)#l #'*e%&#c*# ' % ,+ $%e + s"#*$l#4e& le"e%s0 "% &#($ls0 &e$! $'& &u3/ ,+ $%e u'$/le * %e$& $'& ,%#*e0 *+ se ,+ $%e ! u's u'& 3#'&0 e)e' *+ u(+ *+e1 +$)e luc#& #'*e%)$ls0 $'& "e%s 's ' * /e#'( ! u's u'& 3#'&0 /u* /1 %e$s ' ! $(e0 &#se$se0 ,e$6 3#'&0 $'& *+e% s#3#l$% c$uses0 c$'' *0 ,#*+ u* u*s#&e $#&0 *$6e c$%e ! *+e3sel)es $'& 3$'$(e *+e#% "% "e%*10 /ec 3#'( *+e%e/1 $' e$s1 "%e1 ! % &ece#* $'& e7"l #*$*# '. (ivil interdiction deprives the offender during the time of his sentence of his rights of parental authority, or guardianship, either as to the person or property of any ard, of marital authority, or the right to manage his property and of any right to dispose of such property by any act or any conveyance inter vivos. ?ike ise, they are deemed incompetent for hom guardians may be appointed. )n order to render a person legally unfit to administer his affairs, his acts of prodigality must sho a morbid mnd and a disposition to spend or aste the estate so as to e$pose his family to ant or to deprive his forced heirs of their inheritance. .he court before it can issue a decree of prodigality, must have before it competent evidence demonstrating the necessary facts and the evidence must be clear and definite. "very adult is presumed sane. 5o ever, here the &uestion of insanity is put in issue in guardianship proceedings, and a guardian is named for the person alleged to be incapacitated, a presumption of the mental infirmity of the ard is created. ithin such state.

Sec. 2. 1ransfer of venue. - .he court taking cognizance of a guardianship proceeding, may transfer the same to the court of another province or municipality herein the ard has ac&uired real property, if he has transferred thereto his bona-fide residence, and the latter court shall have full jurisdiction to continue the proceedings, without requiring payment of additional court fees. When a case is filed in one branch of the RTC, jurisdiction over the case does not attach to the branch of judge alone to the exclusion of other branches. ut when one branch had already resumed its jurisdiction by issuing two orders, the other branch should relin!uish its jurisdiction over the guardianship proceedings.

RULE A2 APPOINTMENT OF GUARDIANS

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. 1. Who may petition for appointment of guardian for resident. - A'1 %el$*#)e0 !%#e'&0 % *+e% "e%s ' ' /e+$l! ! $ %es#&e'* 3#' % % #'c 3"e*e'* ho has no parent or la ful guardian, % the minor himself if fourteen years of age or over, 3$1 "e*#*# ' *+e c u%* +$)#'( 8u%#s&#c*# ' ! % *+e $"" #'*3e'* ! $ (e'e%$l (u$%&#$' ! % *+e "e%s ' % es*$*e0 % / *+0 ! suc+ 3#' % % #'c 3"e*e'*. A' !!#ce% ! *+e Fe&e%$l A&3#'#s*%$*# ' ! *+e U'#*e& S*$*es #' *+e P+#l#""#'es 3$1 $ls !#le $ "e*#*# ' #' !$) % ! $ ,$%& *+e%e !0 $'& *+e D#%ec* % ! .e$l*+0 #' !$) % ! $' #'s$'e "e%s ' ,+ s+ ul& /e + s"#*$l#4e&0 % #' !$) % ! $' #s l$*e& le"e%. ;rom the fact that a person may be incompetent to act as e$ecutor or administrator, it does not follo that he could be placed under guardianship. =ut if a person is incompetent to act as e$ecutor or administrator, then he is not the incompetent person envisaged in the la of guardianship. ! $ (e'e%$l (u$%&#$' 3us* s+ ,0

Sec. 2. (ontents of petition. - A "e*#*# ' ! % *+e $"" #'*3e'* s !$% $s 6' ,' * *+e "e*#*# 'e%?$B T+e 8u%#s&#c*# '$l !$c*s< ?/B T+e 3#' %#*1

% #'c 3"e*e'c1 %e'&e%#'( *+e $"" #'*3e'* 'ecess$%1 ! *+e %el$*#)es ! *+e 3#' %

% c ')e'#e'*< ! *+e

?cB T+e '$3es0 $(es0 $'& %es#&e'ces "e%s 's +$)#'( +#3 #' *+e#% c$%e< ?&B T+e "% /$/le )$lue $'& c+$%$c*e% ?eB T+e '$3e

% #'c 3"e*e'*0 $'&

! +#s es*$*e< ! (u$%&#$'s+#" $%e "%$1e&.

! *+e "e%s ' ! % ,+ 3 le**e%s

.he petition shall be verified; but no defect in the petition or verification shall render void the issuance of letters of guardianship. ;acts hich must appear in the application hich give the court authority to act over it:; .he minority of incompetency of the person for hom guardianship is sought; 5is domicile. )n a petition for appointment of guardian of the property of the minor or incompetent, it is a jurisdictional fact and should be alleged therein, that the minor has property needing the care and attention of a guardian. 4hile allegation as to the names, ages and residences of the minors relatives is jurisdictional, the same may not be necessary here the petition as filed by the minors relatives themselves. .he correction of a minors name in hose behalf a petition for guardianship as filed may be made by ay of a motion. 4here no particular form of verification of a petition for the appointment of a guardian is prescribed, but the statute simply re&uires the petition to be verified, it is sufficient if it is dated, signed, s orn to and duly certified in a manner similar to the practice formerly prevailing in the case of s orn bills and ans ers.

Sec. 2. (ourt to set time for hearing' .otice thereof. - 9+e' $ "e*#*# ' ! % *+e $"" #'*3e'* ! $ (e'e%$l (u$%&#$' #s !#le&0 *+e c u%* s+$ll !#7 $ *#3e $'& "l$ce ! % +e$%#'( *+e s$3e0 $'& s+$ll c$use %e$s '$/le ' *#ce *+e%e ! * /e (#)e' * *+e "e%s 's 3e'*# 'e& #' *+e "e*#*# ' %es#&#'( #' *+e "% )#'ce0 #'clu&#'( *+e 3#' % #! $/ )e 1; 1e$%s ! $(e % *+e #'c 3"e*e'* +#3sel!0 $'& 3$1 &#%ec* *+e% (e'e%$l % s"ec#$l ' *#ce *+e%e ! * /e (#)e'. 3otice for hearing of the petition shall be served by the court to:

#. .he persons mentioned in the petition residing in the %hilippines; 9. .he minor himself if above #8 years of age and the incompetent himself. o As to the effect of failure to notify an alleged insane person, here such notice is re&uired, it has sometimes been held that the appointment of a guardian ithout notice to the former is a jurisdictional defect hich renders the appointment void and subject to collateral attack.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

o !ervice of notice upon the minor if above #8 years or upon the incompetent is jurisdictional, ithout hich the court ac&uired no jurisdiction to appoint a guardian.

Sec. ;. 0pposition to petition. - A'1 interested person may, by filing a written opposition, contest the petition on the ground of majority of the alleged minor 0 c 3"e*e'c1 ! *+e $lle(e& #'c 3"e*e'*0 or the unsuitability of the person for whom letters are prayed, and may pray that the petition be dismissed, % *+$* letters of guardianship issue to himself, or to any suitable person named in the opposition. .he opposition must be in riting, but need not be verified.

:rounds: 'ajority of the alleged minor; (ompetency of the alleged incompetent )ncompetency of the person for hom letters are prayed for. )f the interested person is a creditor and mortgagee of the estate of the minor, he cannot be appointed guardian of the person and property of the latter. 2pposition to the appointment of a person as guardian ad litem should be first addressed to and resolved by the lo er court and not first time on appeal. =ut if dismissed by lo er court, it may be appealed.

Sec. =. )earing and order for letters to issue. - A* *+e +e$%#'( ! *+e "e*#*# ' *+e $lle(e& #'c 3"e*e'* 3us* /e "%ese'* #! $/le * $**e'&0 $'& it must be sho n that the re&uired notice has been given. )hereupon the court shall hear the evidence of the parties in support of their respective allegations, and, if the person in %uestion is a minor, or incompetent it s+$ll $"" #'* $ su#*$/le (u$%&#$' ! +#s "e%s ' % es*$*e0 % / *+0 ,#*+ *+e " ,e%s $'& &u*#es +e%e#'$!*e% s"ec#!#e&. .he order issuing letters of guardianship should be sufficient in form and substance to invest the appointee ith due authority; and statutory re&uirements ith respect to hat shall be contained or specified in the order must be complied ith. .he order must identify the ard, but it is not essential that the ard be mentioned by name if he is other ise sufficiently identified. )n determining the selection of a guardian, the court may consider the financial situation, the physical condition and sound judgment, prudence and trust orthiness, the morals, character and conduct, and the present and past history of a prospective appointee, as ell as the probability of his being able to e$ercise the po ers and duties of a guardian for the full period during hich guardianship ill be necessary. *easons for incompetency of guardian (dis&ualification): 'ental incapacity; (onviction of a crime, moral delin&uency or physical disability as to be prevented from properly discharging duties of his office.

A guardian once appointed may be removed in case he becomes insane, or other ise incapable of discharging his trust or unsuitable therefor, or has asted or mismanaged the estate or failed for /0 days after it is due to render an account or make a return. .here is no order of preference in the appointment of guardians. Sec. >. When and how guardian for nonresident appointed' .otice. - 9+e' $ "e%s ' l#$/le * /e "u* u'&e% (u$%&#$'s+#" %es#&es ,#*+ u* *+e P+#l#""#'es /u* +$s es*$*e *+e%e#'0 any relative or friend of such person, or any one interested in his estate, in e$pectancy or other ise, may petition a court having jurisdiction for the appointment of a guardian for the estate, $'& if, after notice given to such person and in such manner as the court deems proper, by publication or otherwise, and hearing, the court is satisfied that such nonresident is a minor or incompetent rendering a guardian necessary or convenient 0 #* 3$1 $"" #'* $ (u$%&#$' ! % suc+ es*$*e. Ancillary guardianship means a guardianship in a state other than that in hich guardianship is originally granted and hich is subservient and subsidiary to the latter. A court of a state in hich an incompetent has property has jurisdiction to appoint a guardian to his estate in hich case, jurisdiction may be ac&uired by constructive notice by publication. .he confusing part is: it is generally considered that a proceeding to in&uire into the insanity of alleged incompetent for the purpose of appointing a guardian of his person is in personam and

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

some courts broadly state that the personal service distinct from service by publication is essential to give the court jurisdiction.

Sec. 7. Parents as guardians. - 9+e' *+e "% "e%*1 ! *+e c+#l& u'&e% "$%e'*$l $u*+ %#*1 #s , %*+ *, *+ us$'& "es s % less0 *+e !$*+e% % *+e 3 *+e%0 ,#*+ u* *+e 'ecess#*1 ! c u%* $"" #'*3e'*0 s+$ll /e +#s le($l (u$%&#$'. 9+e' *+e "% "e%*1 ! *+e c+#l& #s , %*+ 3 %e *+$' *, *+ us$'& "es s0 *+e !$*+e% % *+e 3 *+e% s+$ll /e c 's#&e%e& (u$%&#$' ! *+e c+#l&Fs "% "e%*10 ,#*+ *+e &u*#es $'& /l#($*# 's ! (u$%&#$'s u'&e% *+ese %ules0 $'& s+$ll !#le *+e "e*#*# ' %e:u#%e& /1 sec*# ' 2 *+e%e !. F % ( & %e$s 's *+e c u%* 3$10 + ,e)e%0 $"" #'* $' *+e% su#*$/le "e%s '. (this is deemed modified by the ;() %arents ho are the natural guardians cannot dispose the property of the child because such po er is granted by la only to a judicial guardian of the ards property and even then only ith courts prior approval. -isposal of minors property ithout court approval is null and void, and ill not constitute lien on the property and does not bind any party ho may conse&uently legally ac&uire o nership thereof, even if the latter had kno ledge of such transaction prior to their ac&uisition of said property. Bendees prejudiced by illegal transactions of natural guardians have no cause of action against subse&uent legal o ners but the reedy lies against the natural guardians not to recover the property, but recover damages.

Sec. @. Service of judgment. - -inal orders or judgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated

RULE A; BONDS OF GUARDIANS Sec. 1. $ond to be given before issuance of letters' Amount' (onditions. - Be! %e $ (u$%&#$' $"" #'*e& e'*e%s u" ' *+e e7ecu*# ' ! +#s *%us*0 % le**e%s ! (u$%&#$'s+#" #ssue0 he shall give a bond, in such sum as the court directs, conditioned as follo s: ?$B T make and return to the court, ithin three (/) months, a true and complete inventory of all the estate, real and personal, of his ard hich shall come to his possession or kno ledge or * *+e " ssess# ' % 6' ,le&(e ! $'1 *+e% "e%s ' ! % +#3< ?/B T faithfully e$ecute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ard, and to provide for the proper care, custody, and education ! *+e ,$%&< ?cB T render a true and just account of all the estate of the ard in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs < $'& $* *+e e7"#%$*# ' ! +#s *%us* * se**le +#s $cc u'*s ,#*+ *+e c u%* $'& &el#)e% $'& "$1 )e% $ll *+e es*$*e0 e!!ec*s0 $'& 3 'e1s %e3$#'#'( #' +#s +$'&s0 % &ue !% 3 +#3 ' suc+ se**le3e'*0 * *+e "e%s ' l$,!ull1 e'*#*le& *+e%e* < ?&B T perform all orders of the court by him to be performed.

.he bond serves as security to those interested in the property settlement of the estate, and the
parties interested ac&uire a vested interest in the bond hich cannot be divested ithout their consent. .he court should not grant letters of guardianship ithout re&uiring a bond. .he amount of the bond must be fi$ed by the court ith reference to the infants estate and in so fi$ing the amount, the court is not bound by the allegations in the petition as to the value of the estate.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged A guardians bond takes effect as of the day of its date and of his appointment, not ithstanding the
bond may have been filed later. At the e$piration>termination of the guardianship, the guardian shall settle his account ith the court and deliver and pay over the estate, effects and moneys remaining in his hands or due from him on such settlement to the person entitled thereto.

Sec. 2. When new bond may be re-uired and old sureties discharged. - 4henever it is deemed necessary, the court may re&uire a ne bond to be given by the guardian, and may discharge the sureties on the old bond from further liability, after due notice to interested persons0 ,+e' ' #'8u%1 c$' %esul* *+e%e!% 3 * *+ se #'*e%es*e& #' *+e es*$*e. *e&uiring additional bond is ithin the authority of the court. 3e bond may be re&uired hen the guardian is about to receive funds not in contemplation hen the original bond as e$ecuted and should be given as a condition of the payment of a legacy or distributive share to the guardian hen there is any e$press statutory re&uirements to that effect.

Sec. 2. $onds to be filed' Actions thereon. - E)e%1 bond given by a guardian shall be filed in the office of the clerk of the court0 $'&0 in case of the breach of a condition thereof, may be prosecuted in the same proceeding or in a separate action for the use and benefit of the ard % ! $'1 *+e% "e%s ' le($ll1 #'*e%es*e& #' *+e es*$*e. .he bond ill be construed and enforced in accordance ith the intention and scope of the guardian and his surety in giving it. .heir responsibility must depend upon the e$tent of the obligation created by the terms of the bond and the statutes hich can be read into it. .he bond of the guardian is continuing one against the obligators and their estates until all of its condition are fulfilled. .he mere fact that defendant as removed as guardian did not relieve her or her bondsmen from liability during the time she as duly acting as such guardian. .he sureties of a guardian against hom judgment has been entered may demand the benefit of a levy of the principals property even hen judgment is rendered against both surety and principal.

RULE A= SELLING AND ENCUMBERING PROPERTY OF 9ARD Sec. 1. Petition of guardian for leave to sell or encumber estate. - 9+e' *+e #'c 3e ! $' es*$*e u'&e% (u$%&#$'s+#" #s #'su!!#c#e'* * 3$#'*$#' *+e ,$%& $'& +#s !$3#l10 % * 3$#'*$#' $'& e&uc$*e *+e ,$%& ,+e' $ 3#' %0 % ,+e' #* $""e$%s *+$* #* #s ! % *+e /e'e!#* ! *+e ,$%& *+$* +#s %e$l es*$*e % s 3e "$%* *+e%e ! /e s l&0 % 3 %*($(e& % *+e%,#se e'cu3/e%e&0 $'& *+e "% cee&s *+e%e ! "u* u* $* #'*e%es*0 % #')es*e& #' s 3e "% &uc*#)e secu%#*10 % #' *+e #3"% )e3e'* % secu%#*1 ! *+e% %e$l es*$*e ! *+e ,$%&0 *+e (u$%&#$' 3$1 "%ese'* $ )e%#!#e& "e*#*# ' * *+e c u%* /1 ,+#c+ +e ,$s $"" #'*e& se**#'( ! %*+ suc+ !$c*s0 $'& "%$1#'( *+$* $' %&e% #ssue $u*+ %#4#'( *+e s$le % e'cu3/%$'ce. 4hen guardian may sell or encumber the estate of the ard: #. .he income of the estate of the minor or incompetent under guardianship is insufficient to maintain the ard and his family; 9. .he income is insufficient to maintain and educate the ard hen a minor; or /. )t appears that it is for the benefit of the ard that his real estate or some part thereof be sold or mortgaged or other ise encumbered, and the proceeds thereof put out at interest or invested in some productive security, or in the improvement or security of other real estate of the ard. o o )n order to enable the guardian to sell or encumber the estate of the ard, a petition must first be filed before the court for such sale or encumbrance. A guardian has no authority to sell real estate of his ard merely by reason of his general po ers, and in the absence of any special authority to sell conferred by ill, statute or order of court, a sale of the ards realty by the guardian ithout authority form the court is void.

Sec. 2. 0rder to show cause thereupon. - I! #* see3s "% /$/le *+$* suc+ s$le % e'cu3/%$'ce #s 'ecess$%10 % , ul& /e /e'e!#c#$l * *+e ,$%&0 *+e c u%* s+$ll 3$6e $' %&e% &#%ec*#'( *+e 'e7*

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

! 6#' ! *+e ,$%&0 $'& $ll "e%s 's #'*e%es*e& #' *+e es*$*e0 * $""e$% $* $ %e$s '$/le *#3e $'& "l$ce *+e%e#' s"ec#!#e& * s+ , c$use ,+1 *+e "%$1e% ! *+e "e*#*# ' s+ ul& ' * /e (%$'*e&. 3e$t of kin+ not the ne$t of kindred but those relatives ho share in the estate according to the statute of distribution. 3otice to ne$t of kin is a jurisdictional re&uirement and hich may not be dispensed ith. .he notice is sufficient hen it recites that notice is thereby given that a petition to sell the ards real estate ill be presented to a named court, at a named place, on a named date, and hen and here all persons interested may, appear and sho cause, if they have any, hy such petition should not be granted. 2mission of time, court ac&uires no jurisdiction, sale is void. 2nly the children have an interest in the land of their father, besides the creditors, and only they or the creditors ho may have been prejudiced by the sale have a right to object thereto.

Sec. 2. )earing on return of order' (osts. - At the time and place designated in the order to sho cause0 the court shall hear the proofs and allegations of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or refuse the prayer of the petition as the best interests of the ward re%uire )+e c u%* s+$ll 3$6e suc+ %&e% $s * c s*s ! *+e +e$%#'( $s 3$1 /e 8us*. .he court should ascertain and determine hether the facts re&uisite to the granting of the petition e$ist, and should select the part or parts of the property hich can be disposed of ith the least injury to the ard.

Sec. ;. (ontents of order for sale or encumbrance& and how long effective' $ond. - )f, after full e$amination, it appears that it is necessary, or ould be beneficial to the ard, to sell or encumber the estate, or some portion of it, the court shall order such sale or encumbrance and that the proceeds thereof be expended for the maintenance of the ward and his family, or the education of the ward, if a minor, or for the putting of the same out at interest, % *+e #')es*3e'* ! *+e s$3e $s *+e c#%cu3s*$'ces 3$1 %e:u#%e. .he order shall specify the causes hy the sale or encumbrance is necessary or beneficial, and may direct that estate ordered sold be disposed of at either public or private sale, subject to such conditions as to the time and manner of payment, and security here a part of the payment is deferred, as in the discretion of the court are deemed most beneficial to the ard. The original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale, but the judge may, if deemed expedient, require an additional bond as a condition for the granting of the order of sale. o order of sale granted in pursuance of this section shall continue in force more than one !"# year after granting the same, without a sale being had. 4hile the ards title passes only to the e$ecution of a deed by the guardian and not on the confirmation of the sale by the court, in order that a sale may be of such validity, that , upon the e$ecution of a deed, title may pass to the purchaser, it is essential that the sale first be confirmed by the court, and that until such confirmation, not even e&uitable title passes. (onfirmation may not be necessary here the courts order e$pressly authorized the guardian to e$ecute and deliver to the purchaser definitely named a deed of conveyance to a parcel of land and it as intended to be the approval itself of the sale that as already perfected or agreed upon by the seller and buyers. :uardians cannot ac&uire by purchase even at a public or judicial auction, either in person through the mediation of another, the property of the person or persons ho may be under his guardianship. (ourt may annul guardians sale here court authority as obtained ithout disclosing the fact that the property had previously been sold at sheriffs sale to another pursuant to e$ecution, the sale duly noted on the title. (ancellation of authority of the guardian to sell the property of the ard did not and could not, affect the rights of the buyer, here at the time that the order canceling the authority to sell as entered, the guardian had already acted in accordance ith the authority and sold the property. .here being a presumption that the sale of the ards estate is valid, the same cannot be attacked collaterally in the registration proceedings. A separate action to avoid or rescind the sale on the grounds specified by la should have been filed. .he order empo ering the guardian to sell property belonging to the ard shall not be effective for more than # year after it has been granted. Appeal is the proper remedy against an order of the court authorizing the sale of the ards property.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. =. (ourt may order investment of proceeds and direct management of estate. - .he court may authorize and re&uire the guardian to invest the proceeds of sales or encumbrances, and any other of his ard6s money in his hands, in real estate or other ise0 $s s+$ll /e ! % *+e /es* #'*e%es* ! $ll c 'ce%'e&0 $'& 3$1 3$6e suc+ *+e% %&e%s ! % *+e 3$'$(e3e'*0 #')es*3e'*0 $'& &#s" s#*# ' ! *+e es*$*e $'& e!!ec*s0 $s c#%cu3s*$'ces 3$1 %e:u#%e. .his re&uires judicial authority in order that a guardian may invest the ards money, but it does not provide that said authority must al ays be either prior to or e$pressed. .he rule seeks principally to protect the funds of the ard against imprudent or unsafe investments by the guardians. 2nce the ard reaches majority or becomes entitled to the proceeds, it is the duty of the guardian to account for and turn them over to him and he cannot refuse to do so because of the fact that the sale may been irregular, if the ard is illing to abide by it, provided of course the ard is entitled to particular proceeds. A guardian may lease the property of the ard and if it ould be recorded, the same should be by proper authority of the court. .his applies to term of lease hich is longer than one year.

RULE A> GENERAL PO9ERS AND DUTIES OF GUARDIANS Sec. 1. 1o what guardianship shall extend. - A guardian appointed shall have the care and custody of the person of his ard, and the management of his estate, or the management of the estate only, $s *+e c$se 3$1 /e. T+e guardian of the estate of a nonresident shall have the management of all the estate of the ward within the +hilippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship A la fully appointed general guardian or guardian of the estate has general authority over the property and the affairs of his ard. (onflicts regarding the o nership or title to the property in the hands of the guardian in his capacity as such should be litigated in a separate proceeding. .he court in the guardianship proceeding is being solely concerned ith the ards care and custody and proper administration of his properties. 2ne ho has been appointed guardian ad litem by the court for minor heirs is not acting in representative capacity as a negotiorum gestor and must have some e$press authority form the persons he purports to represent.

Sec. 2. ,uardian to pay debts of ward. - E)e%1 (u$%&#$' 3us* "$1 *+e ,$%&Fs 8us* &e/*s u* ! +#s "e%s '$l es*$*e $'& *+e #'c 3e ! +#s %e$l es*$*e0 #! su!!#c#e'*< #! ' *0 *+e' u* ! +#s %e$l es*$*e u" ' /*$#'#'( $' %&e% ! % *+e s$le % e'cu3/%$'ce *+e%e !. .here is prohibition on taking ards property ithout court approval.

Sec. 2. ,uardian to settle accounts& collect debts& and appear in actions for ward. - A guardian must settle all accounts of his ard, and demand, sue for, and receive all debts due him, or may, ith the approval of the court, compound for the same and give discharges to the debtor, on receiving a fair and just dividend of the estate and effects; $'& he shall appear for and represent his ard in all actions and special proceedings0 u'less $' *+e% "e%s ' /e $"" #'*e& ! % *+$* "u%" se. )t is the right and duty of a general guardian or a guardian of the estate to collect all assets of the ard, and to reduce the possession the ards choses in action and collect the debts and obligations due him. ;ailure of the guardian to collect the personal estate of the ard due to negligence ill make the guardian liable for the amount of the assets lost thereby, hich might have been collected had he been diligent. )t is the duty of the guardian to cause action, for the recovery of the debts due the ard, to be instituted in the name of the ard, by himself or some other person as ne$t friend, hen such proceedings are necessary for the preservation of the estate. A guardian has authority to compromise a claim e$isting in favor of the ard, provided he acts in good faith. %rior approval of the court for a compromise by the guardian should be first secured.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

A guardian ad litem has no authority to act or bind a minor in any transaction estate, but he can do so ith the approval of the court. ith regard to his

Sec. ;. Estate to be managed frugally& and proceeds applied to maintenance of ward. - A guardian must manage the estate of his ard frugally and ithout aste, and apply the income and profits thereon, so far as may be necessary, to the comfortable and suitable maintenance of the ard and his family, if there be any; $'& if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order so to do, $'& $""l1 s 3uc+ ! *+e "% cee&s $s 3$1 /e 'ecess$%1 * suc+ 3$#'*e'$'ce. -uty of the guardian is to manage the estate frugally, and the duty carries ith it the right to take possession of such estate and recover it from any ho retains it. :uardian is liable, to his ard for the management of the estate from the time of acceptance until his removal or release. :uardian must give his personal care and attention to the maintenance of the ards estate and to keep the funds and property of the ard under his o n control.

Sec. =. ,uardian may be authori5ed to join in partition proceedings after hearing. - .he court may authorize the guardian to join in an assent to a partition of real or personal estate held by the ard jointly or in common ith others0 but such authority shall only be granted after hearing, upon such notice to relatives of the ard as the court may direct0 $'& $ c$%e!ul #')es*#($*# ' $s * *+e 'ecess#*1 $'& "% "%#e*1 ! *+e "% " se& $c*# '. :uardian may institute action for partition of properties jointly ith others provided: hich the ard may hold in common or

#. !uch permission or authorization by the court be granted only after hearing the petition for the grant of such authority; 9. .he relatives of the ard be duly notified of such petition for partition; /. !uch authorization be granted only after a careful investigation as to the necessity and propriety of the proposed action;

4hen the interest of either parent in the partition conflicts ith that of the children under his parental authority, such parent cannot represent them therein, and a third party ill be appointed to represent them in la and in fact.

Sec. >. Proceedings when person suspected of embe55ling or concealing property of ward. <pon complaint of the guardian or ard, or of any person having actual or prospective interest in the estate of the ard as creditor, heir, or other ise, that anyone is suspected of having embezzled, concealed, or conveyed a ay any money, goods, or interest, or a ritten instrument 0 /el '(#'( * *+e ,$%& % +#s es*$*e0 the court may cite the suspected person to appear for examination touching such money, goods0 #'*e%es*0 % #'s*%u3e'*0 $'& 3$6e suc+ %&e%s $s ,#ll secu%e *+e es*$*e $($#'s* suc+ e3/e44le3e'*0 c 'ce$l3e'* % c ')e1$'ce. .his is to secure evidence from persons suspected of embezzling, concealing or conveying a ay any property of the ard or of the deceased so as to enable said guardian or administrator to institute the appropriate action to obtain the possession of and secure title to said property but it cannot order the delivery of the ards property being embezzled. -etermination of said right or title must be had in a separate proceedings because jurisdiction of the court in guardianship proceedings is to cite persons suspected hich may be used in a latter action to protect the right of the ard.

Sec. 7. nventories and accounts of guardians& and appraisement of estates. - A guardian must render to the court an inventory of the estate of his ard ithin three (/) months after his appointment, and annually after such appointment an inventory and account, the rendition of any of hich may be compelled upon the application of an interested person. Suc+ #')e'* %#es $'& $cc u'*s s+$ll /e s, %' * /1 *+e (u$%&#$'. All *+e es*$*e ! *+e ,$%& &esc%#/e& #' *+e !#%s* #')e'* %1 s+$ll /e $""%$#se&. I' *+e $""%$#se3e'* *+e c u%* 3$1 %e:ues* *+e $ss#s*$'ce ! 'e % 3 %e ! *+e #'+e%#*$'ce *$7 $""%$#se%s. !nd whenever any property of the ward not included in an inventory already rendered is discovered, or succeeded to, or ac%uired by the ward, like proceedings shall be had for securing an inventory and appraisement thereof within three (3) months after such discovery, succession, or ac%uisition

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

.he guardian is re&uired under the rules to file an inventory of the ards estate hich ill constitute the basis of subse&uent accounting and settlement. ;ailure of the guardian to include a property of the ard, any interested person may file a petition before the court compelling the guardian to include such additional property into the inventory.

Sec. @. When guardian6s accounts presented for settlement. - E7"e'ses $'& c 3"e's$*# ' $ll ,e&. <pon the e$piration of a year from the time of his appointment, $'& $s !*e' *+e%e$!*e% $s 3$1 /e %e:u#%e&0 a guardian must present his account to the court for settlement and allowance. )n the settlement of the account, the guardian, other than a parent, shall be allo ed the amount of his reasonable e$penses incurred in the e$ecution of his trust and also such compensation for his services as the court deems jus*0 not exceeding fifteen per centum of the net income of the ward. .he guardian as trustee of the ards property, is re&uired to render an account thereof so long as the property remains in his possession unaccounted for, and he is not entitle to a credit for e$penditures until he has filed an account sho ing its terms. Account submitted to the court must be under oath. )f the accounts fail to state sufficient facts to make a clear sho ing, a motion for a more specific statement is the appropriate remedy. An order directing the imprisonment of a person for failure to render his account as a guardian and to deliver the property of the estate to his successor is legal. A guardian is entitled to compensation for his services but o entitle him to compensation for services, they must be such as he has authority to render. .he guardian is not entitled to compensation on failure to file accounts here the statute e$pressly so provides, and in the absence of such provision, the guardian ill forfeit his compensations if his neglect is injurious to the interest of the ard. *ule EA limits the compensation that may be allo ed to a guardian to not more than #DG of the net income of the ard, obviously because it is not fair to consider and place the compensation of an e$ecutor or administrator and that of a guardian on the same footing, for the reason that, as a rule, the ork to be performed by the former is much heavier.

RULE A7 TERMINATION OF GUARDIANS.IP Sec. 1. Petition that competency of ward be adjudged& and proceedings thereupon. - A "e%s ' ,+ +$s /ee' &ecl$%e& #'c 3"e*e'* ! % $'1 %e$s '0 % +#s (u$%&#$'0 %el$*#)e0 % !%#e'&0 3$1 "e*#*# ' *+e c u%* * +$)e +#s "%ese'* c 3"e*e'c1 8u&#c#$ll1 &e*e%3#'e&. T+e "e*#*# ' s+$ll /e )e%#!#e& /1 $*+0 $'& s+$ll s*$*e *+$* suc+ "e%s ' #s *+e' c 3"e*e'*. U" ' %ece#)#'( *+e "e*#*# '0 *+e c u%* s+$ll !#7 $ *#3e ! % +e$%#'( *+e :ues*# 's %$#se& *+e%e/10 $'& c$use %e$s '$/le ' *#ce *+e%e ! * /e (#)e' * *+e (u$%&#$' ! *+e "e%s '0 s &ecl$%e& #'c 3"e*e'*0 $'& * *+e ,$%&. O' *+e *%#$l0 *+e (u$%&#$' % %el$*#)es ! *+e ,$%&0 $'&0 #' *+e &#sc%e*# ' ! *+e c u%*0 $'1 *+e% "e%s '0 3$1 c '*es* *+e %#(+* * *+e %el#e! &e3$'&e&0 $'& ,#*'esses 3$1 /e c$lle& $'& e7$3#'e& /1 *+e "$%*#es % /1 *+e c u%* ' #*s ,' 3 *# '. I! #* /e ! u'& *+$* *+e "e%s ' #s ' l '(e% #'c 3"e*e'*0 +#s c 3"e*e'c1 s+$ll /e $&8u&(e& $'& *+e (u$%&#$'s+#" s+$ll ce$se. .he person previously declared incompetent by the court, his guardian, relative or friend, may file the petition to have his present competency judicially determined. :rounds for the termination of guardianship; -eath of the guardian or ard; 'arriage or voluntary emancipation; Adjudgment of competency .he proceeding follo ed by virtue of a petition for restoration to capacity is not ne independent, it is a continuation of the original guardianship proceeding. or

)f the court had jurisdiction to appoint a guardian of the person or property of the incompetent party, it is obvious that it had also jurisdiction to try and grant the petition for restoration. %etition shall be verified, and shall state that such person is then competent. 3otice re&uired in this section is not intended as a personal service process in the sense necessary to give the court jurisdiction over the ard. 2pposition may filed by the guardian or any other person.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. 2. When guardian removed or allowed to resign' .ew appointment. - When a guardian becomes insane or otherwise incapable of discharging his trust or unsuitable therefor& or has wasted or mismanaged the estate& of failed for thirty (/0) days after it is due to render an account or make a return, the court may, upon reasonable notice to the guardian, remove him, and compel him to surrender the estate of the ard to the person found to be la fully entitled thereto. A (u$%&#$' 3$1 %es#(' ,+e' #* $""e$%s "% "e% * $ll , *+e s$3e< $'& u" ' +#s %es#('$*# ' % %e3 )$l *+e c u%* 3$1 $"" #'* $' *+e% #' +#s "l$ce. .he guardian may file a petition before the guardianship court for permission to resign his trust, stating the grounds therefor, and accompanied by a report of the state of his account and an offer to settle the account and deliver the estate over to the court. )n his stead, the court shall appoint another guardian. %artial removal of guardianship is allo ed. An order removing a guardian is an order constituting a final determination of his rights and conse&uently said guardian may appeal therefrom.

Sec. 2. 0ther termination of guardianship. - T+e 3$%%#$(e % ) lu'*$%1 e3$'c#"$*# ' ! $ 3#' % ,$%& *e%3#'$*es *+e (u$%&#$'s+#" ! *+e "e%s ' ! *+e ,$%&0 $'& s+$ll e'$/le *+e 3#' % * $&3#'#s*e% +#s "% "e%*1 $s *+ u(+ +e ,e%e ! $(e0 /u* +e c$'' * / %% , 3 'e1 % $l#e'$*e % e'cu3/e% %e$l "% "e%*1 ,#*+ u* *+e c 'se'* ! +#s !$*+e% % 3 *+e%0 % (u$%&#$'. 5e can sue and be sued in court only ith the assistance of his father, mother or guardian. .he guardian of any person may be discharged by the court hen it appears, upon the application of the ard or other ise, that the guardianship is no longer necessary. Sec. ;. 7ecord to be +ept by the justice of the peace or municipal judge. - 9+e' $ 8us*#ce ! *+e "e$ce % 3u'#c#"$l c u%* *$6es c ('#4$'ce ! *+e "% cee&#'(s #' "u%su$'ce ! *+e "% )#s# 's ! *+ese %ules0 *+e %ec %& ! *+e "% cee&#'(s s+$ll /e 6e"* $s #' *+e c u%* ! !#%s* #'s*$'ce. Boluntary emancipation under the amendments is no longer recognized as a ground for the termination of parental authority or guardianship. Sec. =. Service of judgment. - F#'$l %&e%s % 8u&(3e'*s u'&e% *+#s %ule s+$ll /e se%)e& u" ' *+e c#)#l %e(#s*%$% ! *+e 3u'#c#"$l#*1 % c#*1 ,+e%e *+e 3#' % % #'c 3"e*e'* "e%s ' %es#&es % ,+e%e +#s "% "e%*1 % "$%* *+e%e ! #s s#*u$*e&.

RULE A@ TRUSTEES Sec. 1. Where trustee appointed. - A *%us*ee 'ecess$%1 * c$%%1 #'* e!!ec* *+e "% )#s# 's ! $ ,#ll % ,%#**e' #'s*%u3e'* s+$ll /e $"" #'*e& /1 *+e C u%* ! F#%s* I's*$'ce #' ,+#c+ *+e ,#ll ,$s $ll ,e& #! #* /e $ ,#ll $ll ,e& #' *+e P+#l#""#'es0 *+e%,#se /1 *+e C u%* ! F#%s* I's*$'ce ! *+e "% )#'ce #' ,+#c+ *+e "% "e%*10 % s 3e " %*# ' *+e%e !0 $!!ec*e& /1 *+e *%us* #s s#*u$*e&. .he e$ecutor or administrator, or the person named as trustee under the for the appointment of a trustee. ill shall file the petition

Sec. 2. Appointment and powers of trustee under will' Executor of former trustee need not administer trust. - I! $ *es*$* % +$s 3#**e& #' +#s ,#ll * $"" #'* $ *%us*ee #' *+e P+#l#""#'es0 $'& #! suc+ $"" #'*3e'* #s 'ecess$%1 * c$%%1 #'* e!!ec* *+e "% )#s# 's ! *+e ,#ll0 *+e "% "e% C u%* ! F#%s* I's*$'ce 3$10 $!*e% ' *#ce * $ll "e%s 's #'*e%es*e&0 $"" #'* $ *%us*ee ,+ s+$ll +$)e *+e s$3e %#(+*s0 " ,e%s0 $'& &u*#es0 $'& #' ,+ 3 *+e es*$*e s+$ll )es*0 $s #! +e +$& /ee' $"" #'*e& /1 *+e *es*$* %. N "e%s ' succee&#'( * $ *%us* $s e7ecu* % % $&3#'#s*%$* % ! $ ! %3e% *%us*ee s+$ll /e %e:u#%e& * $cce"* suc+ *%us*. .he court may e$ercise its discretion in appointing a trustee here a trust is actually created in the ill providing that certain of the property shall be kept together undisposed during a fi$ed period and for stated purpose. 3otice and consent of beneficiary are not essential for the creation of a valid trust. )n voluntary trust, assent of the beneficiary is presumed. .rust may be created through an inoperative ill provided that parties have intended such declaration of trust.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. 2. Appointment and powers of new trustee under written instrument. - 9+e' $ *%us*ee u'&e% $ ,%#**e' #'s*%u3e'* declines, resigns, dies, or is removed before the objects of the trust are accomplished, $'& ' $&e:u$*e "% )#s# ' #s 3$&e #' suc+ #'s*%u3e'* ! % su""l1#'( *+e )$c$'c10 *+e "% "e% C u%* ! F#%s* I's*$'ce 3$10 $!*e% &ue ' *#ce * $ll "e%s 's #'*e%es*e&0 $"" #'* $ 'e, *%us*ee * $c* $l 'e % 8 #'*l1 ,#*+ *+e *+e%s0 $s *+e c$se 3$1 /e. Suc+ 'e, *%us*ee s+$ll +$)e $'& e7e%c#se *+e s$3e " ,e%s0 %#(+*s0 $'& &u*#es $s #! +e +$& /ee' %#(#'$ll1 $"" #'*e&0 $'& *+e *%us* es*$*e s+$ll )es* #' +#3 #' l#6e 3$''e% $s #* +$& )es*e& % , ul& +$)e )es*e&0 #' *+e *%us*ee #' ,+ se "l$ce +e #s su/s*#*u*e&< $'& *+e c u%* 3$1 %&e% suc+ c ')e1$'ce * /e 3$&e /1 *+e ! %3e% *%us*ee % +#s %e"%ese'*$*#)es0 % /1 *+e *+e% %e3$#'#'( *%us*ees0 $s 3$1 /e 'ecess$%1 % "% "e% * )es* *+e *%us* es*$*e #' *+e 'e, *%us*ee0 e#*+e% $l 'e % 8 #'*l1 ,#*+ *+e *+e%s. A trust ill never fail for ant of a trustee because the court can al ays appoint one e$cept here the trust is purely personal in the sense that the trustor has e$cluded its administration by any person other than the trustee he designates. .he ne trustee shall have the same po ers as that e$ercised by the old one. .he court ill consider all the circumstances but is not bound to follo the ishes of parties interested in appointing a trustee.

Sec. ;. Proceedings where trustee appointed abroad. - 9+e' l$'& #' *+e P+#l#""#'es #s +el& #' *%us* ! % "e%s 's %es#&e'* +e%e /1 $ *%us*ee ,+ &e%#)es +#s $u*+ %#*1 !% 3 ,#*+ u* *+e P+#l#""#'es0 suc+ *%us*ee s+$ll0 ' "e*#*# ' !#le& #' *+e C u%* ! F#%s* I's*$'ce ! "% )#'ce ,+e%e *+e l$'& #s s#*u$*e&0 $'& $!*e% &ue ' *#ce * $ll "e%s 's #'*e%es*e&0 /e %&e%e& * $""l1 * *+e c u%* ! % $"" #'*3e'* $s *%us*ee< $'& u" ' +#s 'e(lec* % %e!us$l * c 3"l1 ,#*+ suc+ %&e%0 *+e c u%* s+$ll &ecl$%e suc+ *%us* )$c$'*0 $'& s+$ll $"" #'* $ 'e, *%us*ee #' ,+ 3 *+e *%us* es*$*e s+$ll )es* #' l#6e 3$''e% $s #! +e +$& /ee' %#(#'$ll1 $"" #'*e& /1 suc+ c u%*. .he po ers of a trustee appointed by a %hilippine court cannot e$tend beyond the jurisdiction of the *% under hose courts he as appointed. .his is based on sovereign e&uality of states. Sec. =. T%us*ee 3us* !#le / '&. Be! %e e'*e%#'( ' *+e &u*#es ! +#s *%us*0 a trustee shall file ith the clerk of the court having jurisdiction of the trust a bond in the amount fi$ed by the judge of said court, payable to the :overnment of the %hilippines and sufficient and available for the protection of any party in interest, $'& $ *%us*ee ,+ 'e(lec*s * !#le suc+ / '& s+$ll /e c 's#&e%e& * +$)e &ecl#'e& % %es#('e& *+e *%us*< /u* *+e c u%* 3$1 u'*#l !u%*+e% %&e% e7e3"* $ *%us*ee u'&e% $ ,#ll !% 3 (#)#'( $ / '& ,+e' *+e *es*$* % +$s &#%ec*e& % %e:ues*e& suc+ e7e3"*# '0 $'& 3$1 s e7e3"* $'1 *%us*ee ,+e' $ll "e%s 's /e'e!#c#$ll1 #'*e%es*e& #' *+e *%us*0 /e#'( ! !ull $(e0 %e:ues* *+e e7e3"*# '. Suc+ e7e3"*# ' 3$1 /e c$'celle& /1 *+e c u%* $* $'1 *#3e $'& *+e *%us*ee %e:u#%e& * ! %*+,#*+ !#le $ / '&. A trustee appointed by the court is re&uired to furnish a bond e$cept hen the testator has re&uested e$emption from filing bond or hen all persons beneficially interested in the trust, being of full age, re&uest the e$emption. ;ailure of trustee to file a bond dis&ualifies him to be so but trust is not defeated thereby. /e $ "$%* !

Sec. >. (onditions included in bond. - T+e ! ll ,#'( c '&#*# 's s+$ll /e &ee3e& * *+e / '& ,+e*+e% ,%#**e' *+e%e#' % ' *-

?$B T+$* *+e trustee ill make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, ,+#c+ $* *+e *#3e ! *+e 3$6#'( ! suc+ #')e'* %1 s+$ll +$)e c 3e * +#s " ssess# ' % 6' ,le&(e< ?/B T+$* +e ,#ll manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to la and the ill of the testator % *+e "% )#s# 's ! *+e #'s*%u3e'* % %&e% u'&e% ,+#c+ +e #s $"" #'*e&< ?cB T+$* +e ,#ll render upon oath at least once a year until his trust is fulfilled, unless he is e$cused therefrom in any year by the court, a true account of the property in his hands and of the management and disposition *+e%e !0 $'& ,#ll %e'&e% suc+ *+e% $cc u'*s $s *+e c u%* 3$1 %&e%< ?&B T+$* at the e$piration of his trust he ill settle his accounts in court and pay over and deliver all the estate remaining in his hands, % &ue !% 3 +#3 ' suc+ se**le3e'*0 * *+e "e%s ' % "e%s 's e'*#*le& *+e%e* .

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Bu* ,+e' the trustee is appointed as a successor to a prior trustee, the court may dispense ith the making and return of an inventory, if one has already been filed 0 $'& #' suc+ c$se *+e c '&#*# ' ! *+e / '& s+$ll /e &ee3e& * /e $l*e%e& $cc %&#'(l1. #. 9. /. 8. D. A. -uties of a trustee are governed by the intention of the trustor or parties if established by contracts hile those of e$ecutor or administrator are limited by la . .rustee shall make and return to court a true inventory of all the real and personal estate belonging to him as trustee hich has come to his kno ledge or possession. .his may be dispensed ith if the trustee is appointed as a successor to a prior trustee. ;aithful discharge of trust: (ollect, take possession of and keep in his custody the trust property and assets, income and increments of estate 5old, manage and apply the same to effect the purpose of the trust 'ake payments and distribution to beneficiaries in accordance ith the terms of the trust; Act ith reasonable diligence <nnecessary delay in securing possession of the trust property is at his personal risk "nforce and collect choses in action, debts and demands belonging to the estate (estui &ue trust is entitled to a complete accounting from the trustee. .rustee is not liable to repay trust funds at all hazards and here such funds are taken from the bank, he is relieved therefrom. .he possession by the trustee is not an adverse possession, but only possession in the name and in behalf of the o ner and cannot be the ground of prescription e$cept hen the has repudiated the trust, being open clear and une&uivocal and kno n to the cestui &ue trust, or claim any right to the property entrusted. %rescription in favor of the heirs of the trustee should be computed from the date of the trustees death. Biolation of duty by a trustee, illfully or negligently is a breach of trust.

Sec. 7. Appraisal' (ompensation of trustee. - 9+e' $' #')e'* %1 #s %e:u#%e& * /e %e*u%'e& /1 $ *%us*ee0 the estate and effects belonging to the trust shall be appraised and the court may order one or more inheritance ta$ appraisers to assist in the appraisement. T+e c 3"e's$*# ' ! *+e *%us*ee s+$ll /e !#7e& /1 *+e c u%*0 #! #* /e ' * &e*e%3#'e& #' *+e #'s*%u3e'* c%e$*#'( *+e *%us*. (ompensation: at discretion of the court. *eimbursement of trustee, from the trust estate, for the follo ing e$penses: All necessary and reasonable e$penditures+ payments ith e$press authority, those incurred in carryiong out the directions, and in protecting and preserving the trust property, in rendering and in proving his accounts for costs and counsel fees.

Sec. @. 7emoval or resignation of trustee. - T+e "% "e% C u%* ! F#%s* I's*$'ce 3$10 u" ' "e*#*# ' ! *+e "$%*#es /e'e!#c#$ll1 #'*e%es*e& $'& $!*e% &ue ' *#ce * *+e *%us*ee $'& +e$%#'(0 %e3 )e $ *%us*ee #! suc+ %e3 )$l $""e$%s esse'*#$l #' *+e #'*e%es*s ! *+e "e*#*# 'e%s . .he court may also, after due notice to all persons interested, remove a trustee ho is insane or other ise incapable of discharging his trust or evidently unsuitable therefor. A trustee, hether appointed by the court or under a ritten instrument, may resign his trust if it appears to the court proper to allo such resignation. #. 9. /. 8. *emoval of a trustee: A trustee hose acts or omissions sho ant of reasonable fidelity )f such removal appears essential in the interests of the petitioners; )nsane or incapable of discharging the trust or evidently unsuitable 'isapplication of trust estate 5o : petition for removal and appointment of ne real property. *esignation by the trustee is allo ed. one by the beneficiary, not an action to recover

Sec. A. Proceedings for sale or encumbrance of trust estate. - 9+e' *+e s$le % e'cu3/%$'ce ! $'1 %e$l % "e%s '$l es*$*e +el& #' *%us* #s 'ecess$%1 % e7"e&#e'*0 *+e c u%* +$)#'( 8u%#s&#c*# ' ! *+e *%us* 3$10 on petition and after due notice and hearing, order such sale or

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

encumbrance to be made, and the reinvestment and application of the proceeds thereof in such manner as ill best effect the objects of the trust. T+e "e*#*# '0 ' *#ce0 +e$%#'(0 %&e% ! s$le % e'cu3/%$'ce0 $'& %ec %& ! "% cee&#'(s0 s+$ll c '! %3 $s 'e$%l1 $s 3$1 /e * *+e "% )#s# 's c 'ce%'#'( *+e s$le % e'cu3/%$'ce /1 (u$%&#$'s ! *+e "% "e%*1 ! 3#' %s % *+e% ,$%&s. .rustees have no po er to change the character of the property unless it is of a perishable or transitory nature and then only to convert it into substantial, enduring and revenue+producing investment, but permission of the court should first be obtained. .he duty of a trustee in respect of bidding at a sale of trust property is to the trust and no bidders at the sale.

RULE AA ADOPTION AND CUSTODY OF MINORS Sec. 1. :enue. - A "e%s ' &es#%#'( * $& "* $' *+e% % +$)e *+e cus* &1 ! $ 3#' % s+$ll "%ese'* +#s "e*#*# ' * *+e C u%* ! F#%s* I's*$'ce ! *+e "% )#'ce0 % *+e 3u'#c#"$l % 8us*#ce ! *+e "e$ce c u%* ! *+e c#*1 % 3u'#c#"$l#*1 #' ,+#c+ +e %es#&es. I' *+e C#*1 ! M$'#l$0 *+e "% cee&#'(s s+$ll /e #'s*#*u*e& #' *+e Ju)e'#le $'& D 3es*#c Rel$*# 's C u%*. Sec. 2. (ontents of petition. - T+e "e*#*# ' ! % $& "*# ' s+$ll c '*$#' *+e s$3e $lle($*# 's %e:u#%e& #' $ "e*#*# ' ! % (u$%&#$'s+#"0 * ,#*?$B T+e 8u%#s&#c*# '$l !$c*s< ?/B T+e :u$l#!#c$*# 's ! *+e $& "*e%<

?cB T+$* *+e $& "*e% #s ' * &#s:u$l#!#e& /1 l$,< ?&B T+e '$3e0 $(e0 $'& %es#&e'ce ! *+e "e%s ' * "e%s 's ,+ +$)e +#3 u'&e% *+e#% c$%e< ?eB T+e "% /$/le )$lue $'& c+$%$c*e% ! *+e es*$*e /e $& "*e& $'& ! +#s %el$*#)es % ! *+e

! *+e "e%s ' *

/e $& "*e&.

Sec. 2. (onsent to adoption. - T+e%e s+$ll /e !#le& ,#*+ *+e "e*#*# ' $ ,%#**e' c 'se'* * *+e $& "*# ' s#('e& /1 *+e c+#l&0 #! ! u%*ee' 1e$%s ! $(e % )e% $'& ' * #'c 3"e*e'*0 $'& /1 *+e c+#l&Fs s" use0 #! $'10 $'& /1 e$c+ ! #*s 6' ,' l#)#'( "$%e'*s ,+ #s ' * #'s$'e % + "elessl1 #'*e3"e%$*e % +$s ' * $/$'& 'e& suc+ c+#l&0 % #! *+e%e $%e ' suc+ "$%e'*s /1 *+e (e'e%$l (u$%&#$' % (u$%&#$' $& l#*e3 ! *+e c+#l&0 % #! *+e c+#l& #s #' *+e cus* &1 ! $' %"+$' $s1lu30 c+#l&%e'Fs + 3e0 % /e'e) le'* s c#e*1 % "e%s '0 /1 *+e "% "e% !!#ce% % !!#ce%s ! suc+ $s1lu30 + 3e0 % s c#e*10 % /1 suc+ "e%s '< /u* #! *+e c+#l& #s #lle(#*#3$*e $'& +$s ' * /ee' %ec ('#4e&0 *+e c 'se'* ! #*s !$*+e% * *+e $& "*# ' s+$ll ' * /e %e:u#%e&. I! *+e "e%s ' * /e $& "*e& #s s+$ll /e %e:u#%e&. ! $(e0 'l1 +#s % +e% c 'se'* $'& *+$* ! *+e s" use0 #! $'10

Sec. ;. 0rder for hearing. - I! *+e "e*#*# ' $'& c 'se'* !#le& $%e su!!#c#e'* #' ! %3 $'& su/s*$'ce0 *+e c u%*0 /1 $' %&e% %ec#*#'( *+e "u%" se ! *+e "e*#*# '0 s+$ll !#7 $ &$*e $'& "l$ce ! % *+e +e$%#'( *+e%e !0 ,+#c+ &$*e s+$ll ' * /e 3 %e *+$' s#7 ?>B 3 '*+s $!*e% *+e e'*%1 ! *+e %&e%0 $'& s+$ll &#%ec* *+$* $ c "1 ! *+e %&e% /e "u/l#s+e& /e! %e *+e +e$%#'( $* le$s* 'ce $ ,ee6 ! % *+%ee ?2B success#)e ,ee6s #' s 3e 'e,s"$"e% ! (e'e%$l c#%cul$*# ' "u/l#s+e& #' *+e "% )#'ce0 $s *+e c u%* s+$ll &ee3 /es*. Sec. =. )earing and judgment. - U" ' s$*#s!$c* %1 "% ! #' "e' c u%* ' *+e &$*e !#7e& #' *+e %&e% *+$* suc+ %&e% +$s /ee' "u/l#s+e& $s &#%ec*e&0 *+$* *+e $lle($*# 's ! *+e "e*#*# ' $%e *%ue0 $'& *+$* #* #s $ "% "e% c$se ! % $& "*# ' $'& *+e "e*#*# 'e% % "e*#*# 'e%s $%e $/le * /%#'( u" $'& e&uc$*e *+e c+#l& "% "e%l10 *+e c u%* s+$ll $&8u&(e *+$* *+e'ce! %*+ *+e c+#l& #s !%ee& !% 3 $ll le($l /l#($*# 's ! /e&#e'ce $'& 3$#'*e'$'ce ,#*+ %es"ec* * #*s '$*u%$l "$%e'*s0 e7ce"* *+e 3 *+e% ,+e' *+e c+#l& #s $& "*e& /1 +e% +us/$'&0 $'& #s0 * $ll le($l

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

#'*e'*s $'& "u%" ses0 *+e c+#l& ! *+e "e*#*# 'e% % "e*#*# 'e%s0 $'& *+$* #*s su%'$3e #s c+$'(e& * *+$* ! *+e "e*#*# 'e% % "e*#*# 'e%s. T+e $& "*e& "e%s ' % c+#l& s+$ll *+e%eu" ' /ec 3e *+e le($l +e#% ! +#s "$%e'*s /1 $& "*# ' $'& s+$ll $ls %e3$#' *+e le($l +e#% ! +#s '$*u%$l "$%e'*s. I' c$se ! *+e &e$*+ ! *+e $& "*e& "e%s ' % c+#l&0 +#s "$%e'*s $'& %el$*#)es /1 '$*u%e0 $'& ' * /1 $& "*# '0 s+$ll /e +#s le($l +e#%s.c+$'% /les )#%*u$ l$, l#/%$%1 Sec. >. Proceedings as to child whose parents are separated' Appeal. - 9+e' +us/$'& $'& ,#!e $%e &#) %ce& % l#)#'( se"$%$*el1 $'& $"$%* !% 3 e$c+ *+e%0 $'& *+e :ues*# ' $s * *+e c$%e0 cus* &10 $'& c '*% l ! $ c+#l& % c+#l&%e' ! *+e#% 3$%%#$(e #s /% u(+* /e! %e $ C u%* ! F#%s* I's*$'ce /1 "e*#*# ' % $s $' #'c#&e'* * $'1 *+e% "% cee&#'(0 *+e c u%*0 u" ' +e$%#'( *+e *es*#3 '1 $s 3$1 /e "e%*#'e'*0 s+$ll $,$%& *+e c$%e0 cus* &10 $'& c '*% l ! e$c+ suc+ c+#l& $s ,#ll /e ! % #*s /es* #'*e%es*0 "e%3#**#'( *+e c+#l& * c+ se ,+#c+ "$%e'* #* "%e!e%s * l#)e ,#*+ #! #* /e )e% *e' 1e$%s ! $(e0 u'less *+e "$%e'* s c+ se' /e u'!#* * *$6e c+$%(e ! *+e c+#l& /1 %e$s ' ! 3 %$l &e"%$)#*10 +$/#*u$l &%u'6e''ess0 #'c$"$c#*10 % " )e%*1. I!0 u" ' suc+ +e$%#'(0 #* $""e$%s *+$* / *+ "$%e'*s $%e #3"% "e% "e%s 's * +$)e *+e c$%e0 cus* &10 $'& c '*% l ! *+e c+#l&0 *+e c u%* 3$1 e#*+e% &es#('$*e *+e "$*e%'$l % 3$*e%'$l (%$'&"$%e'* ! *+e c+#l&0 % +#s l&es* /% *+e% % s#s*e%0 % s 3e %e"u*$/le $'& &#sc%ee* "e%s ' * *$6e c+$%(e ! suc+ c+#l&0 % c 33#* #* * $'1 su#*$/le $s1lu30 c+#l&%e'Fs + 3e0 % /e'e) le'* s c#e*1. T+e c u%* 3$1 #' c '! %3#*1 ,#*+ *+e "% )#s# 's ! *+e C#)#l C &e %&e% e#*+e% % / *+ "$%e'*s * su"" %* % +el" su"" %* s$#& c+#l&0 #%%es"ec*#)e ! ,+ 3$1 /e #*s cus* &#$'0 $'& 3$1 3$6e $'1 %&e% *+$* #s 8us* $'& %e$s '$/le "e%3#**#'( *+e "$%e'* ,+ #s &e"%#)e& ! #*s c$%e $'& cus* &1 * )#s#* *+e c+#l& % +$)e *e3" %$%1 cus* &1 *+e%e !. E#*+e% "$%e'* 3$1 $""e$l !% 3 $' %&e% 3$&e #' $cc %&$'ce ,#*+ *+e "% )#s# 's ! *+#s sec*# '. N c+#l& u'&e% se)e' 1e$%s ! $(e s+$ll /e se"$%$*e& !% 3 #*s 3 *+e%0 u'less *+e c u%* !#'&s *+e%e $%e c 3"ell#'( %e$s 's *+e%e! %. .he rule contemplates of these: #. 4hen husband and ife are divorced or living separately and apart from each other; 9. .he &uestion as to care, custody and control of a child or children of their marriage is brought before *.( by petition or as an incident to any proceeding. %rocedure on custody of minors: *ule on %rovisional 2rders in petitions for declaration of absolute nullity of void marriage or for annulment of marriage or legal separation. Sec. 7. Proceedings as to vagrant or abused child. - 9+e' *+e "$%e'*s ! $'1 3#' % c+#l& $%e &e$&0 % /1 %e$s ' ! l '( $/se'ce % le($l % "+1s#c$l &#s$/#l#*1 +$)e $/$'& 'e& #*0 % c$'' * su"" %* #* *+% u(+ )$(%$'c10 'e(l#(e'ce0 % 3#sc '&uc*0 % 'e(lec* % %e!use * su"" %* #*0 % *%e$* #* ,#*+ e7cess#)e +$%s+'ess % (#)e #* c %%u"*#'( %&e%s0 c u'sels0 % e7$3"les0 % c$use % $ll , #* * e'($(e #' /e((#'(0 % * c 33#* !!e'ses $($#'s* *+e l$,0 *+e "% "e% C u%* ! F#%s* I's*$'ce0 u" ' "e*#*# ' !#le& /1 s 3e %e"u*$/le %es#&e'* ! *+e "% )#'ce se**#'( ! %*+ *+e !$c*s0 3$1 #ssue $' %&e% %e:u#%#'( suc+ "$%e'*s * s+ , c$use0 %0 #! *+e "$%e'*s $%e &e$& % c$'' * /e ! u'&0 %e:u#%#'( *+e !#sc$l ! *+e "% )#'ce * s+ , c$use0 $* $ *#3e $'& "l$ce !#7e& #' *+e %&e%0 ,+1 *+e c+#l& s+ ul& ' * /e *$6e' !% 3 #*s "$%e'*s0 #! l#)#'(< $'& #! u" ' *+e +e$%#'( #* $""e$%s *+$* *+e $lle($*# 's ! *+e "e*#*# ' $%e *%ue0 $'& *+$* #* #s ! % *+e /es* #'*e%es* ! *+e c+#l&0 *+e c u%* 3$1 3$6e $' %&e% *$6#'( #* !% 3 #*s "$%e'*s0 #! l#)#'(< $'& c 33#**#'( #* * $'1 su#*$/le %"+$' $s1lu30 c+#l&%e'Fs + 3e0 % /e'e) le'* s c#e*1 % "e%s ' * /e ul*#3$*el1 "l$ce&0 /1 $& "*# ' % *+e%,#se0 #' $ + 3e ! u'& ! % #* /1 suc+ $s1lu30 c+#l&%e'Fs + 3e0 s c#e*1 % "e%s '. Sec. @. Service of judgment. - F#'$l %&e%s % 8u&(3e'*s u'&e% *+#s %ule s+$ll /e se%)e& /1 *+e cle%6 u" ' *+e c#)#l %e(#s*%$% ! *+e c#*1 % 3u'#c#"$l#*1 ,+e%e#' *+e c u%* #ssu#'( *+e s$3e #s s#*u$*e&.

.his rule is repealed by A' 3o. 09+A+09 Adoption: )n rem proceeding (reates relationship bet een 9 persons similar to that filiation

hich results from legitimate paternity and

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

;act of adoption is never presumed, but must be affirmatively proved by person claiming its e$istence 3ot an adversarial proceeding 3o court may entertain unless it has jurisdiction not only over the subject matter of the case and over the parties, but also over the res hich is the personal status of the parties. )n construction of adoption statutes, the best interest of the child is the paramount consideration. .he absence of proof of such order of adoption by the court, as provided by the statute cannot be substituted by parole evidence hat a child has lived ith a person not his parent and has been treated as a child to establish such adoption.

!tate %rinciple: best interest of the adoptee. )f the petition includes a prayer for change of name, notice to !ol :en is mandatory. !ocial orker has the duty to conduct child and home study reports on the adoptee and the adopter.

!upervised trial custody: maybe reduced by the courts. :*: 1oint adoption by husband and ife, e$cept:

)f one spouse seeks to adopt the legitimate child of one spouse by the other spouse; )f one spouse seeks to adopt his o n illegitimate childe provided that the other spouse has signified his consent thereto; )f the spouses are legally separated from each other; (onsent of the follo ing re&uired to the adoption : .he adoptee, if #0 years of age or over; .he biological parents of the child, if kno n, or the legal guardian, or the proper government instrumentality hich has the legal custody of the child; .he legitimate and adopted sons>daughters, #0 years of age or over, of the adopter and adoptee, if any; .he illegitimate sons>daughters, #0 years or older, of the adopter if living latters spouse, if any .he spouse if any, of the person adopting or to be adopted. %arental consent re&uired by la in adoption refers to parents ho have not abandoned their child. ith said adopter and the

.he re&uirement of ritten consent can be dispensed such parent is insane or hopelessly intemperate.

ith if the parent has abandoned the child or that

.he issue of abandonment by the oppositor natural parent is a preliminary issue that an adoption court must first confront. Act of abandonment imports any conduct of the parent hich evinces a settled purpose to forego all parental duties and relin&uish all parental claims to the child. .he residence of the petitioner is a jurisdictional fact the petition as filed. hich confers jurisdiction on the court before hich

.he name of the person to be adopted is that appearing in the civil registry and the court does not ac&uire jurisdiction if a different name is carried in the notice of publication. A mere clerical error is not sufficient to oust the court of its jurisdiction. .he purpose of the publication re&uirement is to give notice so that those adoption can make their objection kno n. ho gave any objection to the

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

%resent rules on adoption allo the petition to include an application for change of name.

4hether the petition contains an application for change of name and in case the petition also prays for change of name, the title or caption must contain: *egistered name of the child; Aliases or other names by .he full name by hich the child has been kno n

hich the child is to be kno n.

)3."* (2<3.*H A-2%.)23

RULE 1CC RESCISSION AND REVOCATION OF ADOPTION Sec. 1. Who may file petition' grounds. - A 3#' % % *+e% #'c$"$c#*$*e& "e%s ' 3$10 *+% u(+ $ (u$%&#$' % (u$%&#$' $& l#*e30 "e*#*# ' ! % *+e %esc#ss# ' % %e) c$*# ' ! +#s % +e% $& "*# ' ! % *+e s$3e c$uses *+$* $u*+ %#4e *+e &e"%#)$*# ' ! "$%e'*$l $u*+ %#*1. T+e $& "*e% 3$10 l#6e,#se0 "e*#*# ' *+e c u%* ! % *+e %esc#ss# ' #' $'1 ! *+ese c$ses?$B I! *+e $& "*e& "e%s ' +$s $**e3"*e& $($#'s* *+e l#!e ?/B 9+e' *+e $& "*e& 3#' % +$s $/$'& 'e& *+e + 3e 1e$%s< ?cB 9+e' /1 % %e) c$*# ' ! *+e $& "*# '

! *+e $& "*e%< ! *+e $& "*e% ! % 3 %e *+$' *+%ee ?2B

*+e% $c*s *+e $& "*e& "e%s ' +$s %e"u&#$*e& *+e $& "*# '.

Sec. 2. 0rder to answer. - T+e c u%* #' ,+#c+ *+e "e*#*# ' #s !#le& s+$ll #ssue $' %&e% %e:u#%#'( *+e $&)e%se "$%*1 * $'s,e% *+e "e*#*# ' ,#*+#' !#!*ee' ?1=B &$1s !% 3 %ece#"* ! $ c "1 *+e%e !. T+e %&e% $'& $ c "1 ! *+e "e*#*# ' s+$ll /e se%)e& ' *+e $&)e%se "$%*1 #' suc+ 3$''e% $s *+e c u%* 3$1 &#%ec*. Sec. 2. 4udgment. - I! u" ' *%#$l0 ' *+e &$1 se* *+e%e! %0 *+e c u%* !#'&s *+$* *+e $lle($*# 's ! *+e "e*#*# ' $%e *%ue0 #* s+$ll %e'&e% 8u&(3e'* %&e%#'( *+e %esc#ss# ' % %e) c$*# ' ! *+e $& "*# '0 ,#*+ % ,#*+ u* c s*s0 $s 8us*#ce %e:u#%es.c+$'% /les )#%*u$ l$, l#/%$%1 Sec. ;. Service of judgment. - A ce%*#!#e& c "1 ! *+e 8u&(3e'* %e'&e%e& #' $cc %&$'ce ,#*+ *+e 'e7* "%ece&#'( sec*# ' s+$ll /e se%)e& u" ' *+e c#)#l %e(#s*%$% c 'ce%'e&0 ,#*+#' *+#%*1 ?2CB &$1s !% 3 %e'&#*# ' *+e%e !0 ,+ s+$ll ! %*+,#*+ e'*e% *+e $c*# ' *$6e' /1 *+e c u%* #' *+e %e(#s*e%. Sec. =. 1ime within which to file petition. - A 3#' % % *+e% #'c$"$c#*$*e& "e%s ' 3us* !#le *+e "e*#*# ' ! % %esc#ss# ' % %e) c$*# ' ! $& "*# ' ,#*+#' *+e !#)e ?=B 1e$%s ! ll ,#'( +#s 3$8 %#*10 % #! +e ,$s #'c 3"e*e'* $* *+e *#3e ! *+e $& "*# '0 ,#*+#' *+e 1e$%s ! ll ,#'( *+e %ec )e%1 !% 3 suc+ #'c 3"e*e'c1. T+e $& "*e% 3us* $ls !#le *+e "e*#*# ' * se* $s#&e *+e $& "*# ' ,#*+#' !#)e ?=B 1e$%s !% 3 *+e *#3e *+e c$use % c$uses (#)#'( %#se * *+e %esc#ss# ' % %e) c$*# ' ! *+e s$3e * 6 "l$ce.

.he court does not have jurisdiction to annul after the period fi$ed a decree of adoption. A subse&uent agreement bet een the adopting party and the natural parents cannot by itself revoke the adoption. A challenge to the validity of the adoption cannot be made collaterally, in an action for partition, but in direct proceedings frontally addressing the issue. .he petition for rescission shall be verified and filed by the adoptee ho is over #F years of age, or ith the assistance of the department, if he is a minor, or if he is over #F years but is incapacitated, by his guardian or counsel.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

.he adoption may be rescinded based on any of the follo ing grounds committed by the adopter: *epeated physical and verbal maltreatment by the adopter despite having undergone counseling; Attempt on the life of the adoptee; !e$ual assault or violence; or Abandonment or failure to comply ith parental obligations. .he adoptee if incapacitate, must file the petition for rescission or revocation of adoption ithin D years after he reaches the age of majority or if he as incompetent at the time of the adoption, ithin D years after recovery from such incompetency. .he petition shall be filed ith the ;amily court of the city or province here the adoptee resides. 1udicial rescission of the adoption shall e$tinguish all reciprocal rights and obligations bet een the adopters and the adopted arising from the relationship of parent and child. .he adopted shall like ise lose the right to use the surname of the adopters and shall resume his surname prior to the adoption. .he courts shall order the amendment of the records in the civil register. )f the adopted is still a minor, the court shall reinstate the parental authority of the parents by nature unless the latter are dis&ualified or incapacitate, in hich case, the court shall appoint a guardian over the person and property of the minor in the same proceedings. )f the adopted is physically or mentally handicapped , the court shall also appoint a guardian over his person or property or both in the same proceedings. RULE 1C1 PROCEEDINGS FOR .OSPITALIGATION OF INSANE PERSONS Sec. 1. :enue' Petition for commitment. - A petition for the commitment of a person to a hospital or other place for the insane may be filed ith the (ourt of ;irst )nstance of the province here the person alleged to be insane is found. T+e "e*#*# ' s+$ll /e !#le& /1 *+e D#%ec* % ! .e$l*+ #' *+e $ll c$ses ,+e%e0 #' +#s "#'# '0 suc+ c 33#*3e'* #s ! % *+e "u/l#c ,el!$%e0 % ! % *+e ,el!$%e ! s$#& "e%s ' ,+ 0 #' +#s 8u&(3e'*0 #s #'s$'e0 $'& suc+ "e%s ' % *+e 'e +$)#'( c+$%(e& ! +#3 #s "" se& * +#s /e#'( *$6e' * $ + s"#*$l % *+e% "l$ce ! % *+e #'s$'e. .his is applicable only hen the hospitalization of the insane person is for the public elfare or for the elfare of said person provided that the one ho has charge of him is opposed to such confinement. )nsanity denotes condition of mind hich is so impaired in function or so deranged as to induce a deviation from normal conduct in the person so afflicted; unsound, deranged, delirious or distracted mind.

Sec. 2. 0rder for hearing. - I! *+e "e*#*# ' !#le& #s su!!#c#e'* #' ! %3 $'& su/s*$'ce0 *+e c u%*0 /1 $' %&e% %ec#*#'( *+e "u%" se ! *+e "e*#*# '0 s+$ll !#7 $ &$*e ! % *+e +e$%#'( *+e%e !0 and copy of such order shall be served on the person alleged to be insane, and to the one having charge of him, or on such of his relatives residing in the province or city as the judge may deem proper. T+e c u%* s+$ll !u%*+e%3 %e %&e% *+e s+e%#!! * "% &uce *+e $lle(e& #'s$'e "e%s '0 #! " ss#/le0 ' *+e &$*e ! *+e +e$%#'(. )nsane person has right to notice and hearing for vacating the order of commitment. ould render the proceedings void or at least a good ground

Sec. 2. )earing and judgment. - U" ' s$*#s!$c* %1 "% !0 in open court on the date fi$ed in the order, that the commitment applied for is for the public elfare or for the elfare of the insane person, and that his relatives are unable for any reason to take proper custody and care of him, the court shall order his commitment to such hospital or other place for the insane as may be recommended by the -irector of 5ealth. T+e c u%* s+$ll 3$6e "% "e% "% )#s# 's ! % *+e cus* &1 ! "% "e%*1 % 3 'e1 /el '(#'( * *+e #'s$'e u'*#l $ (u$%&#$' /e "% "e%l1 $"" #'*e&. .he one ho alleges insanity has the burden of proof.

Sec. ;. 3ischarge of insane. - 9+e'0 #' *+e "#'# ' ! *+e D#%ec* % ! .e$l*+0 *+e "e%s ' %&e%e& * /e c 33#**e& * $ + s"#*$l % *+e% "l$ce ! % *+e #'s$'e #s *e3" %$%#l1 % "e%3$'e'*l1 cu%e&0 % 3$1 /e %ele$se& ,#*+ u* danger he may file the proper petition ith the (ourt of ;irst )nstance hich ordered the commitment.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

%roceedings for restoration of capacity should be in the court in hich proceedings ere had resulting in the adjudication of incompetency; not a ne proceedings but as a continuance of the original guardianship proceedings. -irector of 5ealth cannot order release of the judicially+committed insane ithout the approval of the *.(. And *.( cannot order release ithout the recommendation of the -irector of 5ealth. Sec. =. Assistance of fiscal in the proceeding. - I* s+$ll /e *+e &u*1 ! *+e "% )#'c#$l !#sc$l % #' *+e C#*1 ! M$'#l$ *+e !#sc$l ! *+e c#*10 * "%e"$%e *+e "e*#*# ' ! % *+e D#%ec* % ! .e$l*+ $'& %e"%ese'* +#3 #' c u%* #' $ll "% cee&#'(s $%#s#'( u'&e% *+e "% )#s# 's ! *+#s %ule.

RULE 1C2 .ABEAS CORPUS Sec. 1. 1o what habeas corpus extends. - E7ce"* $s *+e%,#se e7"%essl1 "% )#&e& /1 l$,0 *+e ,%#* ! +$/e$s c %"us s+$ll e$tend to all cases of illegal confinement or detention by hich any person is deprived of his liberty, or by hich the rightful custody of any person is ithheld !% 3 *+e "e%s ' e'*#*le& *+e%e* . %urpose of the rit: to relieve a person from unla ful restraint; to set the individual at liberty; to obtain immediate relief from illegal confinement; to liberate those imprisoned ithout sufficient cause; to deliver them from unla ful custody; to in&uire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal; 3ot proper in: "nforcement of right to service; -etermination hether a person has committed a crime; -etermination of disputed interstate boundary; .o punish respondent; .o afford the injured person redress for illegal detention; .o recover damages or other money a ard ;or asserting or vindicating denial of right to bail; ;or correcting errors in appreciation of facts>appreciation of la 3ature: )n rem !eparate and distinct from the main case because this only deals

ith the detention of the prisoner

)t is only in a case here the court does not have jurisdiction of the subject matter of the offense that a rit of habeas corpus should be granted. .he rit deals only ith such radical defects as render the proceeding or judgment absolutely voide, and cannot have the effect of an appeal. A release that renders a petition for a rit of habeas corpus moot and academic must be one hich is free from involuntary or unnecessary restraints. :*: *elease hether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic. "$ception: .here are restraints attached to his release hich precludes freedom of action here the court can in&uire into the nature of his involuntary restraint. .he fact that no physical force has been e$erted to keep her in the house of the respondent does not make less real the deprivation of her personal freedom of movement, freedom to transfer from one place to another, or to choose ones residence ;reedom may be lost due to e$ternal moral compulsion, to be founded on groundless fear, to erroneous belief in the e$istence of the ill. )t is not physical restraint alone hich is in&uired into by the rit of habeas corpus. *eservation of the po er to re+arrest is repugnant to government of la s here a person ac&uitted on a criminal charge can no longer be detained or re+arrested fro the same offense.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged 4here constitutional rights are disregarded, it results in the absence of jurisdiction and invalidates
the trial and conse&uent conviction of the accused. 5abeas corpus is a collateral attack on a void judgment. ;ailure to perfect appeal does not preclude recourse to the rit. "$cessive sentence or penalty may be corrected by the rit. .he rit is the proper legal remedy to enable parents to regain custody of minors even if the latter as in custody of third person of her o n free ill. )n habeas corpus proceedings, the &uestion of identity is relevant and material, subject to the usual presumptions including those as to the identity of the person. Cuestions as to ho shall have the custody of the child can be sufficiently resolved in the petition for rit of habeas corpus ithout the necessity of filing a separate action under *ule EE. *e&uisites for issuance; concurrence of the follo ing: #. %etitioner has the right to the custody of the minor; 9. .he rightful custody of the minor is being ithheld from the petitioner by the respondent /. )t is to the best interest of the minor concerned to be in the custody of the petitioner and not that of the respondent. 4rits of habeas corpus and certiorari may be ancilliary to each other here necessary to give effect to the supervisory po ers of the higher courts, for purposes of revie . .he in&uiry in a rit of habeas corpus is addressed, not to errors committed by a court ithin its jurisdiction but to the &uestion of hether the proceeding or judgment under hich the person has been restrained is a complete nullity. "rrors of judgment (errors of fact or la ) cannot be corrected through the remedy of habeas corpus e$cept hen such error affects the jurisdiction or one that ould make the judgment void. 4rit of 5(+ not a rit of error. 5( does not lie here appeal or certiorari is available because it ill not be permitted to perform the functions of a rit of error or appeal for the purpose of revie ing mere errors or irregularities in the proceedings of a court having jurisdiction over the person and subject matter. )t has to be an e$ceptional case re&uiring immediate action for the rit to be available to an accused before trial, other ise, the court ill not grant the rit and discharge the prisoner in advance of a determination of his case in court. .his is proper in revie ing proceedings for deportation of aliens.

Sec. 2. Who may grant the writ. - T+e ,%#* ! +$/e$s c %"us 3$1 /e (%$'*e& /1 *+e !upreme (ourt, or any member thereof, on any day and at any time, or by the (ourt of Appeals or any member thereof in the instances authorized by la , and if so granted it shall be enforceable any here in the %hilippines, $'& may be made returnable before the court or any member thereof& or before the (ourt of 2irst nstance& or any judge thereof for the hearing and decision on the merits. 't may also be granted by a .ourt of -irst 'nstance, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district !(, (A, *.( has concurrent original jurisdiction to issue the 1udges may decide the same. rit. )n the absence of *.( 1udges, '.((

)ssuance of the rit in relation to custody of minors is under the jurisdiction of the family courts, and in the absence of the judge thereof, the same ill be referred to regular courts. (A has jurisdiction to issue rits in custody of minors but is returnable to a family court petitioner resides or here the minor may be found for hearing and decision on the merits. here the

Sec. 2. 7e-uisites of application therefor. - A""l#c$*# ' ! % *+e ,%#* s+$ll /e /1 "e*#*# ' s#('e& $'& )e%#!#e& e#*+e% /1 *+e "$%*1 ! % ,+ se %el#e! #* #s #'*e'&e&0 % /1 s 3e "e%s ' ' +#s /e+$l!0 $'& s+$ll se* ! %*+?$B T+$* *+e person in hose behalf the application is made is imprisoned or restrained of his liberty<

?/B T+e officer or name of the person by hom he is so imprisoned or restrained; or, if both are unkno n or uncertain, such officer or person may be described by an assumed appellation0 $'& *+e "e%s ' ,+ #s se%)e& ,#*+ *+e ,%#* s+$ll /e &ee3e& *+e "e%s ' #'*e'&e&< ?cB T+e "l$ce ,+e%e +e #s s #3"%#s 'e& % %es*%$#'e&0 #! 6' ,'<

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

?&B A copy of the commitment or cause of detention of such person, if it can be procured ithout impairing the efficiency of the remedy; or, if the imprisonment or restraint is ithout any legal authority, suc+ !$c* s+$ll $""e$%. Re:u#s#*es-

1. 2. 3. 4.

.he .he .he .he

person in hose behalf the application is made is imprisoned or restrained of his liberty; name of the person detaining another; place here he is imprisoned or restrained of his liberty; cause of his detention.

(ommon la ife has the personality of institute on behalf of her common la husband. .he rit of habeas corpus ought not to issue if the restraint is voluntary because unnecessary.
Sec. ;. When writ not allowed or discharge authori5ed. - )f 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 or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the rit shall not be allo ed; % #! *+e 8u%#s&#c*# ' $""e$%s $!*e% *+e ,%#* #s $ll ,e&0 *+e "e%s ' s+$ll ' * /e &#sc+$%(e& /1 %e$s ' ! $'1 #'! %3$l#*1 % &e!ec* #' *+e "% cess0 8u&(3e'*0 % %&e%. ,or shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the +hilippines, or of a person suffering imprisonment under lawful judgment.

4hat is to be in&uired into is the legality of his detention as of, at the earliest, the filing of the application for a rit of habeas corpus, for even if the detention is at its inception illegal, it may by reason of some supervening events such as the issuance of a judicial process be no longer illegal at the time of the filing of the application. A petition for the rit ill not prosper because his detention has become legal by virtue of the filing before the court of the complaint against him and by the issuance of the order denying the accuseds '.- and granting the prosecutions hold departure order. ;iling of information or complaint bars the availability of the rit.

)mproper arrest or lack of preliminary investigation is not a valid ground for issuance of rit; motion for reinvestigation or motion to &uash arrant is the remedy and then ask for preliminary investigation. Absence of the latter ill not affect the jurisdiction of the court. 5abeas corpus proceedings are not meant to determine criminal responsibility. A rit of habeas corpus ill not be granted here relief may be had or could have been procured by resort to another general remedy, such as appeal or rit of error. 4hen an alien is detained by the =) for deportation pursuant to an order of deportation by the board, (;) have no po er to release such alien on bail even in habeas corpus proceedings because there is no la authorizing it. 4here the petitioner is held upon a judicial order, the rit ill lie here the order is void because the court issuing it had not jurisdiction over the crime charged, or of the person of the accused here the latter had challenged on time the jurisdiction over his person. %erson discharged on bail is not entitled to the rit.

Sec. =. When the writ must be granted and issued. - A c u%* % 8u&(e $u*+ %#4e& * (%$'* *+e ,%#* 3us*0 ,+e' $ "e*#*# ' *+e%e! % #s "%ese'*e& $'& #* $""e$%s *+$* *+e ,%#* u(+* * #ssue0 (%$'* *+e s$3e ! %*+,#*+0 and immediately thereupon the clerk of the court shall issue the rit under the seal of the court; % #' c$se ! e3e%(e'c10 *+e 8u&(e 3$1 #ssue *+e ,%#* u'&e% +#s ,' +$'&0 $'& 3$1 &e"u*e $'1 !!#ce% % "e%s ' * se%)e #*. %etitioners temporary release does not render petition fro involuntary restraints. rit moot and academic if there are still

Sec. >. 1o whom writ directed& and what to re-uire. - I' c$se ! #3"%#s '3e'* % %es*%$#'* /1 $' !!#ce%, the rit shall be directed to him, and shall command him to have the body of the person

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

restrained of his liberty before the court or judge designated in the rit at the time and place *+e%e#' s"ec#!#e&. I' c$se ! #3"%#s '3e'* % %es*%$#'* /1 $ "e%s ' ' * $' !!#ce%0 *+e ,%#* s+$ll /e &#%ec*e& * $' !!#ce%0 $'& s+$ll c 33$'& +#3 * *$6e $'& +$)e *+e / &1 ! *+e "e%s ' %es*%$#'e& ! +#s l#/e%*1 /e! %e *+e c u%* % 8u&(e &es#('$*e& #' *+e ,%#* $* *+e *#3e $'& "l$ce *+e%e#' s"ec#!#e&0 $'& * su33 ' *+e "e%s ' /1 ,+ 3 +e #s %es*%$#'e& *+e' $'& *+e%e * $""e$% /e! %e s$#& c u%* % 8u&(e * s+ , *+e c$use ! *+e #3"%#s '3e'* % %es*%$#'*. Sec. 7. )ow prisoner designated and writ served. - .he person to be produced should be designated in the rit by his name, if kno n, but if his name is not kno n he may be other ise described or identified. T+e ,%#* 3$1 /e se%)e& #' any province by the sheriff or other proper officer& or by a person deputed by the court or judge. /ervice of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service 'f that person cannot be found, or has not the prisoner in his custody, then the service shalpl be made on any other person having or exercising such custody Sec. @. )ow writ executed and returned. - T+e !!#ce% * ,+ 3 *+e ,%#* #s &#%ec*e& s+$ll c ')e1 *+e "e%s ' s #3"%#s 'e& % %es*%$#'e&0 $'& '$3e& #' *+e ,%#*0 /e! %e *+e 8u&(e $ll ,#'( *+e ,%#*0 %0 #' c$se ! +#s $/se'ce % &#s$/#l#*10 /e! %e s 3e *+e% 8u&(e ! *+e s$3e c u%*0 ' *+e &$1 s"ec#!#e& #' *+e ,%#*0 unless, from sickness or infirmity of the person directed to be produced, such person cannot, ithout danger, be brought before the court or judge; and the officer shall make due return of the rit, together ith the day and the cause of the caption and restraint of such person according to the command thereof. Sec. A. 3efect of form. - 3o rit of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in hose custody or under hose restraint the party imprisoned or restrained is held $'& *+e c u%* % 8u&(e /e! %e ,+ 3 +e #s * /e /% u(+*. %eremptory rit: commanding the respondent to have the body of the detained person before the court at a time and place specified. %reliminary citation: re&uiring the respondent to appear and sho not be granted. cause hy the peremptory rit should

Sec. 1C. (ontents of return. - 9+e' *+e "e%s ' * /e "% &uce& #s #3"%#s 'e& % %es*%$#'e& /1 $' !!#ce%0 the person ho makes the return shall state therein, and in other cases the person in hose custody the prisoner is found shall state, in riting to the court or judge before hom the rit is returnable, "l$#'l1 $'& u'e:u#) c$/l1?$B 9+e*+e% +e +$s % +$s ' * *+e "$%*1 #' +#s cus* &1 % " ,e%0 % u'&e% %es*%$#'*<

?/B I! +e +$s *+e "$%*1 #' +#s cus* &1 % " ,e%0 % u'&e% %es*%$#'*0 *+e $u*+ %#*1 $'& *+e *%ue $'& ,+ le c$use *+e%e !0 se* ! %*+ $* l$%(e0 ,#*+ $ c "1 ! *+e ,%#*0 %&e%0 e7ecu*# '0 % *+e% "% cess0 #! $'10 u" ' ,+#c+ *+e "$%*1 #s +el&< ?cB I! *+e "$%*1 #s #' +#s cus* &1 % " ,e% % #s %es*%$#'e& /1 +#30 $'& #s ' * "% &uce&0 "$%*#cul$%l1 *+e '$*u%e $'& (%$)#*1 ! *+e s#c6'ess % #'!#%3#*1 ! suc+ "$%*1 /1 %e$s ' ! ,+#c+ +e c$'' *0 ,#*+ u* &$'(e%0 /e /% u(+* /e! %e *+e c u%* % 8u&(e< ?&B I! +e +$s +$& *+e "$%*1 #' +#s cus* &1 % " ,e%0 % u'&e% %es*%$#'*0 $'& +$s *%$'s!e%%e& suc+ cus* &1 % %es*%$#'* * $' *+e%0 "$%*#cul$%l1 * ,+ 30 $* ,+$* *#3e0 ! % ,+$* c$use0 $'& /1 ,+$* $u*+ %#*1 suc+ *%$'s!e% ,$s 3$&e. Sec. 11. 7eturn to be signed and sworn to. - .he return or statement shall be signed by the person ho makes it; and shall also be s orn to by him if the prisoner is not produced, $'& #' $ll *+e% c$ses unless the return is made and signed by a sworn public officer in his official capacity Sec. 12. )earing on return' Adjournments. - 9+e' *+e ,%#* #s %e*u%'e& /e! %e 'e 8u&(e0 $* $ *#3e ,+e' *+e c u%* #s #' sess# '0 +e 3$1 ! %*+,#*+ $&8 u%' *+e c$se #'* *+e c u%*0 *+e%e * /e +e$%& $'& &e*e%3#'e&. T+e c u%* % 8u&(e /e! %e ,+ 3 *+e ,%#* #s %e*u%'e& % $&8 u%'e& 3us* #33e&#$*el1 "% cee& * +e$% $'& e7$3#'e *+e %e*u%'0 $'& suc+ *+e% 3$**e%s $s $%e "% "e%l1 su/3#**e& ! % c 's#&e%$*# '0 u'less ! % ( & c$use s+ ,' *+e +e$%#'( #s $&8 u%'e&0 #' ,+#c+ e)e'* *+e c u%* % 8u&(e s+$ll 3$6e suc+ %&e% ! % *+e s$!e6ee"#'( ! *+e "e%s ' #3"%#s 'e& % %es*%$#'e& $s *+e '$*u%e ! *+e c$se %e:u#%es. I! *+e "e%s ' #3"%#s 'e& % %es*%$#'e& #s ' * "% &uce& /ec$use ! +#s $lle(e& s#c6'ess % #'!#%3#*10 *+e c u%* % 8u&(e 3us* /e s$*#s!#e& *+$* #* #s s (%$)e *+$* suc+ "e%s ' c$'' * /e "% &uce& ,#*+ u* &$'(e%0 /e! %e

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

"% cee&#'( * +e$% $'& &#s" se ! *+e 3$**e%. O' *+e +e$%#'( *+e c u%* &#s%e($%& 3$**e%s ! ! %3 $'& *ec+'#c$l#*#es #' %es"ec* * $'1 ,$%%$'* % %&e% ! $ c u%* % !!#ce% $u*+ %#4e& * c 33#* /1 l$,. % 8u&(e s+$ll ! c 33#*3e'*

Sec. 12. When the return evidence& and when only a plea. - I! #* $""e$%s *+$* *+e "%#s 'e% #s #' cus* &1 u'&e% $ ,$%%$'* ! c 33#*3e'* #' "u%su$'ce ! l$,0 *+e %e*u%' s+$ll /e c 's#&e%e& "%#3$ !$c#e e)#&e'ce ! *+e c$use ! %es*%$#'*< /u* #! +e #s %es*%$#'e& ! +#s l#/e%*1 /1 $'1 $lle(e& "%#)$*e $u*+ %#*10 *+e %e*u%' s+$ll /e c 's#&e%e& 'l1 $s $ "le$ ! *+e !$c*s *+e%e#' se* ! %*+0 $'& *+e "$%*1 cl$#3#'( *+e cus* &1 3us* "% )e suc+ !$c*s. ;ailure of the petitioners to file a reply to the return of the rit arrants the dismissal of the petition. =urden of proving release is on respondent. 4here ho ever there are grounds for grave doubts about the alleged release of the detainees, here the standard and prescribed procedure in affecting the release has not been follo ed, then the burden of proving by clear and convincing evidence the alleged release is shifted to the respondents. *elease is an affirmative defense and each party must prove his o n affirmative allegations.

Sec. 1;. When person lawfully imprisoned recommitted& and when let to bail. - I! #* appears that the prisoner as la fully committed, and is plainly and specifically charged in the arrant of commitment ith an offense punishable by death, he shall not be released, discharged, or bailed. I! +e #s l$,!ull1 #3"%#s 'e& % %es*%$#'e& ' $ c+$%(e ! +$)#'( c 33#**e& $' !!e'se ' * s "u'#s+$/le0 +e 3$1 /e %ec 33#**e& * #3"%#s '3e'* % $&3#**e& * /$#l #' *+e &#sc%e*# ' ! *+e c u%* % 8u&(e. I! +e /e $&3#**e& * /$#l0 +e s+$ll ! %*+,#*+ !#le $ / '& #' suc+ su3 $s *+e c u%* % 8u&(e &ee3s %e$s '$/le0 c 's#&e%#'( *+e c#%cu3s*$'ces ! *+e "%#s 'e% $'& *+e '$*u%e ! *+e !!e'se c+$%(e&0 c '&#*# 'e& ! % +#s $""e$%$'ce /e! %e *+e c u%* ,+e%e *+e !!e'se #s "% "e%l1 c ('#4$/le * $/#&e #*s %&e% % 8u&(3e'*< $'& *+e c u%* % 8u&(e s+$ll ce%*#!1 *+e "% cee&#'(s0 * (e*+e% ,#*+ *+e / '&0 ! %*+,#*+ * *+e "% "e% c u%*. I! suc+ / '& #s ' * s !#le&0 *+e "%#s 'e% s+$ll /e %ec 33#**e& * c '!#'e3e'*. 5abeas corpus ould not lie after the information filed against the accused. arrant of commitment is issued by the court on the basis of the

Sec. 1=. When prisoner discharged if no appeal. - 9+e' *+e c u%* % 8u&(e +$s e7$3#'e& #'* *+e c$use ! c$"*# ' $'& %es*%$#'* ! *+e "%#s 'e%0 $'& #s s$*#s!#e& *+$* +e #s u'l$,!ull1 #3"%#s 'e& % %es*%$#'e&0 +e s+$ll ! %*+,#*+ %&e% +#s &#sc+$%(e !% 3 c '!#'e3e'*0 /u* suc+ &#sc+$%(e s+$ll ' * /e e!!ec*#)e u'*#l $ c "1 ! *+e %&e% +$s /ee' se%)e& ' *+e !!#ce% % "e%s ' &e*$#'#'( *+e "%#s 'e%. I! *+e !!#ce% % "e%s ' &e*$#'#'( *+e "%#s 'e% & es ' * &es#%e * $""e$l0 *+e "%#s 'e% s+$ll /e ! %*+,#*+ %ele$se&. Appeals in 5abeas (orpus (ases: 8F hours from the notice of judgment appealed from. .he date on hich the decision as promulgated and>or served is not counted and the period starts to run the follo ing day unless the same be a !unday or legal holiday in hich case the period of appeal is to be considered from the succeeding day. 3otice of appeal is re&uired to be filed ith the clerk of court or judge ho rendered the judgment. Appeals from *.( shall be taken to (A here it involves factual &uestions and directly to !( on pure &uestions of la .

Sec. 1>. Penalty for refusing to issue writ& or for disobeying the same. - A cle%6 ! $ c u%* ,+ %e!uses * #ssue *+e ,%#* $!*e% $ll ,$'ce *+e%e ! $'& &e3$'& *+e%e! %0 % $ "e%s ' * ,+ 3 $ ,%#* #s &#%ec*e&0 ,+ 'e(lec*s % %e!uses * /e1 % 3$6e %e*u%' ! *+e s$3e $cc %&#'( * *+e c 33$'& *+e%e !0 % 3$6es !$lse %e*u%' *+e%e !0 % ,+ 0 u" ' &e3$'& 3$&e /1 % ' /e+$l! ! *+e "%#s 'e%0 %e!uses * &el#)e% * *+e "e%s ' &e3$'&#'(0 ,#*+#' s#7 ?>B + u%s $!*e% *+e &e3$'& *+e%e! %0 $ *%ue c "1 ! *+e ,$%%$'* % %&e% ! c 33#*3e'*0 s+$ll ! %!e#* * *+e "$%*1 $((%#e)e& *+e su3 ! 'e *+ us$'& "es s0 * /e %ec )e%e& #' $ "% "e% $c*# '0 $'& 3$1 $ls /e "u'#s+e& /1 *+e c u%* % 8u&(e $s ! % c '*e3"*. Sec. 17. Person discharged not to be again imprisoned. - A "e%s ' ,+ #s se* $* l#/e%*1 u" ' $ ,%#* ! +$/e$s c %"us s+$ll ' * /e $($#' #3"%#s 'e& ! % *+e s$3e !!e'se u'less /1 *+e l$,!ul %&e% % "% cess ! $ c u%* +$)#'( 8u%#s&#c*# ' ! *+e c$use % !!e'se< $'& $ "e%s ' ,+ 6' ,#'(l10 c '*%$%1 * *+e "% )#s# 's ! *+#s %ule0 %ec 33#*s % #3"%#s 's0 % c$uses * /e c 33#**e& % #3"%#s 'e&0 ! % *+e s$3e !!e'se0 % "%e*e'&e& !!e'se0 $'1 "e%s ' s se* $* l#/e%*10 % 6' ,#'(l1 $#&s % $ss#s*s *+e%e#'0 s+$ll forfeit to the party aggrieved the sum of one

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

thousand pesos, to be recovered in a proper action, not ithstanding any colorable pretense or variation in the arrant of commitment, and may also be punished by the court or judge granting rit as for contempt. !tate ithout po er to reserve re+arrest.

Sec. 1@. When prisoner may be removed from one custody to another. - A "e%s ' c 33#**e& * "%#s '0 % #' cus* &1 ! $' !!#ce%0 ! % $'1 c%#3#'$l 3$**e%0 s+$ll ' * /e %e3 )e& *+e%e!% 3 #'* *+e cus* &1 ! $' *+e% !!#ce% u'less /1 le($l "% cess0 % *+e "%#s 'e% /e &el#)e%e& * $' #'!e%# % !!#ce% * c$%%1 * 8$#l0 %0 /1 %&e% ! *+e "% "e% c u%* % 8u&(e0 /e %e3 )e& !% 3 'e "l$ce * $' *+e% ,#*+#' *+e P+#l#""#'es ! % *%#$l0 % #' c$se ! !#%e0 e"#&e3#c0 #'su%%ec*# '0 % *+e% 'ecess#*1 % "u/l#c c$l$3#*1< $'& $ "e%s ' ,+ 0 $!*e% suc+ c 33#*3e'*0 3$6es0 s#('s0 % c u'*e%s#('s $'1 %&e% ! % suc+ %e3 )$l c '*%$%1 * *+#s sec*# '0 s+$ll ! %!e#* * *+e "$%*1 $((%#e)e& *+e su3 ! 'e *+ us$'& "es s0 * /e %ec )e%e& #' $ "% "e% $c*# '. Sec. 1A. 7ecord of writ& fees and costs. - .he proceedings upon a rit of habeas corpus shall be recorded by the clerk of the court, and upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case re&uires. T+e !ees ! !!#ce%s $'& ,#*'esses s+$ll /e #'clu&e& #' *+e c s*s *$7e&0 /u* ' !!#ce% % "e%s ' s+$ll +$)e *+e %#(+* * &e3$'& "$13e'* #' $&)$'ce ! $'1 !ees * ,+#c+ +e #s e'*#*le& /1 )#%*ue ! *+e "% cee&#'(s. 4hen a person confined under color of proceedings in a criminal case is discharged, the costs shall be ta$ed against the *epublic of the %hilippines, and paid out of its .reasury; hen a person in custody by virtue or under color of proceedings in a civil case is discharged, the costs shall be ta$ed against him, or against the person ho signed the application for the rit, or both, as the court shall direct.

RULE 1C2 C.ANGE OF NAME Sec. 1. :enue. - A "e%s ' &es#%#'( * c+$'(e +#s '$3e s+$ll present the petition to the (ourt of ;irst )nstance of the province in hich he resides, or, in the (ity of 'anila, to the 1uvenile and -omestic *elations (ourt.

o *ead in accordance

ith *A E08F on administrative correction of names for clerical or typographical errors and change of first name or nickname. ith the local civil registrar of the place party is presently residing or domiciled. ;ilipino citizens residing or domiciled abroad may file the petition .his may be availed of only once. Articles /A8 to /F0 regulates the use of names. here the interested

o !uch petition may be filed in person

o o o

ith the nearest consulates.

3ature of proceedings for change of name: )n rem .o establish the status of a person involving his relation ith others %ublication is a jurisdictional re&uirement 2nly the true or official name recorded in the civil register Art. /IA and *ule #0/ involve substantial changes Art. 8#9 and *ule #0F do not involve substantial changes %hilippine citizenship is not necessary, it is enough that the petition be verified, signed by the petitioner or some other person in his behalf and set forth: .hat the petitioner has been a bona fide resident of the province here the petition is filed for at least three years to the date of filing; .he cause for hich the change of name is sought .he name asked for. (hange of name is not a matter of right but of judicial discretion. Aliens may be allo ed to file the same but only alien domiciled in the %hilippines may apply for change of name in the courts thereof. %etition for (hange of 3ame: prays for correction of names and>or make the necessary corrections in the respective birth certificates 1udicial authority is needed in change of name, but not in continued use of surname.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. 2. (ontents of petition. - A "e*#*# ' ! % c+$'(e ! '$3e s+$ll /e s#('e& $'& )e%#!#e& /1 *+e "e%s ' &es#%#'( +#s '$3e c+$'(e&0 % s 3e *+e% "e%s ' ' +#s /e+$l!0 $'& s+$ll se* ! %*+-

?a# 1hat the petitioner has been a bona fide resident of the province where the petition is filed for at least three !;# years prior to the date of such filing' !b# 1he cause for which the change of the petitioner6s name is sought' !c# 1he name as+ed for.

3o age re&uirement. Berification by the person asking for the change, or somebody in his behalf, is mandatory but only a #. 9.
formal re&uisite, not jurisdictional. 3oncompliance ith it does not necessarily render the pleading defective. "ven the lack of verification is not a ground for dismissing the petition. 1urisdictional re&uirements: %ublication for / successive eeks in some ne spaper of general circulation in the province =oth title or caption of the petition and its body shall recite:

.he name or names or aliases of the applicant; .he cause for hich the change of name is sought .he ne name asked for. All names and aliases must appear in the title or caption of the petition, other ise, such omission is
fatal to the petition. .his privilege is granted only upon sho ing of a proper or reasonable cause or compelling reasons therefor. !ome valid grounds are: 4hen the name is ridiculous, dishonorable or e$tremely difficult to rite or pronounce; 4hen the change results as a legal conse&uence, as in legitimation 4hen the change ill avoid confusion 5aving continuously used and been kno n since childhood by a ;ilipino name, una are of her alien parentage A sincere desire to adopt a ;ilipino name to erase signs of fore alienage, all in good faith. 3ame in civil register is the official name, not the one in the church records. <se of aliases is prohibited ithout court authorization. Sec. 2. 0rder for hearing. - I! *+e "e*#*# ' !#le& #s su!!#c#e'* #' ! %3 $'& su/s*$'ce0 *+e c u%*0 /1 $' %&e% %ec#*#'( *+e "u%" se ! *+e "e*#*# '0 s+$ll !#7 $ &$*e $'& "l$ce ! % *+e +e$%#'( *+e%e !0 and shall direct that a copy of the order be published before the hearing at least once a eek for three (/) successive eeks in some ne spaper of general circulation published in the province, as the court shall deem best. T+e &$*e se* ! % *+e +e$%#'( s+$ll ' * /e ,#*+#' *+#%*1 ?2CB &$1s "%# % * $' elec*# ' ' % ,#*+#' ! u% ?;B 3 '*+s $!*e% *+e l$s* "u/l#c$*# ' ! *+e ' *#ce. %urpose of publication: to apprise the public of the pendency of the petition so that those ho may kno of any legal objection to it might come for ard ith the information in order to determine the fitness of the petitioner for %hilippine citizenship. 1urisdiction to hear and determine the petition for change of name is ac&uired after due publication of the order containing the name sought to be adopted hich should be indicated in the title of the petition. ;or the publication to be valid, the order should reproduce the data in the petition. -efect in the petition and the order, as to the spelling of the name of the petitioner, is substantial, because it did not correctly identify the party to said proceedings. 3oncompliance of the publication re&uirement renders the entire proceeding in the court to be null and void. ;ailure to include the name sought to be adopted in the title of the petition nor in the title of the caption of the notices published in the ne spapers renders the trial court ithout jurisdiction to hear and determine the petition. .he non+inclusion of all the name or aliases of the applicant in the caption of the order or in the title of the petition defeats the very purpose of the re&uired publication.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. ;. )earing. - Any interested person may appear at the hearing and oppose the petition. )he /olicitor 0eneral or the proper provincial or city fiscal shall appear on behalf of the 0overnment of the 1epublic Sec. =. 4udgment. - U" ' s$*#s!$c* %1 "% ! #' "e' c u%* ' *+e &$*e !#7e& #' *+e %&e% *+$* suc+ %&e% +$s /ee' "u/l#s+e& $s &#%ec*e& $'& *+$* *+e $lle($*# 's ! *+e "e*#*# ' $%e *%ue0 *+e c u%* s+$ll0 #! "% "e% $'& %e$s '$/le c$use $""e$%s ! % c+$'(#'( *+e '$3e ! *+e "e*#*# 'e%0 $&8u&(e *+$* suc+ '$3e /e c+$'(e& #' $cc %&$'ce ,#*+ *+e "%$1e% ! *+e "e*#*# '. %etition must be supported by eighty reasons. .he general rule is that a change of name should not be permitted if it ill give a false impression of family relationship to another here none actually e$ists. ?egitimate children cannot adopt the surname of a person not their father, for to allo them to adopt the surname of their mothers husband, ho is not their father, can result in confusion of their paternity. !ome insufficient grounds for change of names: #. !eparation of spouses 9. 3o proof of prejudice by use of official name; /. 'ere use and kno n by different name; 8. 3o proof that true name evokes derisive laughter )t is the policy of the court to deny the application in the absence of clear proof that the change is really necessary and ill not in any ay serve any unla ful purpose. Sec. >. Service of judgment. - 2udgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the court issuing the same is situated 0 ,+ s+$ll ! %*+,#*+ e'*e% *+e s$3e #' *+e c#)#l %e(#s*e%.

RULE 1C; VOLUNTARY DISSOLUTION OF CORPORATIONS Sec. 1. Where& by whom and on what showing application made. - A "e*#*# ' ! % &#ss lu*# ' ! $ c %" %$*# ' s+$ll /e !#le& #' *+e C u%* ! F#%s* I's*$'ce ! *+e "% )#'ce ,+e%e *+e "%#'c#"$l !!#ce ! $ c %" %$*# ' #s s#*u$*e&. T+e "e*#*# ' s+$ll /e s#('e& /1 $ 3$8 %#*1 ! #*s / $%& ! &#%ec* %s % *+e% !!#ce%s +$)#'( *+e 3$'$(e3e'* ! #*s $!!$#%s0 )e%#!#e& /1 #*s "%es#&e'* % sec%e*$%1 % 'e ! #*s &#%ec* %s0 $'& s+$ll se* ! %*+ $ll cl$#3s $'& &e3$'&s $($#'s* #*0 $'& *+$* #*s &#ss lu*# ' ,$s %es l)e& u" ' /1 $ 3$8 %#*1 ! *+e 3e3/e%s0 %0 #! $ s* c6 c %" %$*# '0 /1 *+e $!!#%3$*#)e ) *e ! *+e s* c6+ l&e%s + l&#'( $'& %e"%ese'*#'( *, -*+#%&s ! $ll s+$%es ! s* c6 #ssue& % su/sc%#/e&0 $* $ 3ee*#'( ! #*s 3e3/e%s % s* c6+ l&e%s c$lle& ! % *+$* "u%" se. Sec. 2. 0rder thereupon for filing objections. - I! *+e "e*#*# ' #s su!!#c#e'* #' ! %3 $'& su/s*$'ce0 *+e c u%*0 /1 $' %&e% %ec#*#'( *+e "u%" se ! *+e "e*#*# '0 s+$ll !#7 $ &$*e ' % /e! %e ,+#c+ /8ec*# 's *+e%e* 3$1 /e !#le& /1 $'1 "e%s '0 ,+#c+ &$*e s+$ll ' * /e less *+$' *+#%*1 ?2CB ' % 3 %e *+$' s#7*1 ?>CB &$1s $!*e% *+e e'*%1 ! *+e %&e%. Be! %e suc+ &$*e $ c "1 ! *+e %&e% s+$ll /e "u/l#s+e& $* le$s* 'ce $ ,ee6 ! % ! u% ?;B success#)e ,ee6s #' s 3e 'e,s"$"e% ! (e'e%$l c#%cul$*# ' "u/l#s+e& #' *+e 3u'#c#"$l#*1 % c#*1 ,+e%e *+e "%#'c#"$l !!#ce ! *+e c %" %$*# ' #s s#*u$*e&0 %0 #! *+e%e /e ' suc+ 'e,s"$"e%0 *+e' #' s 3e 'e,s"$"e% ! (e'e%$l c#%cul$*# ' #' *+e P+#l#""#'es0 $'& $ s#3#l$% c "1 s+$ll /e " s*e& ! % ! u% ?;B ,ee6s #' *+%ee "u/l#c "l$ces #' suc+ 3u'#c#"$l#*1 % c#*1. Sec. 2. )earing& dissolution& and disposition of assets' 7eceiver. - U" ' !#)e ?=B &$1sF ' *#ce (#)e' $!*e% *+e &$*e ' ,+#c+ *+e %#(+* * !#le /8ec*# 's $s !#7e& #' *+e %&e% e7"#%e&0 *+e c u%* s+$ll "% cee& * +e$% *+e "e*#*# ' $'& *%1 $'1 #ssue 3$&e /1 /8ec*# 's !#le&< $'& #! ' suc+ /8ec*# ' #s su!!#c#e'*0 $'& *+e 3$*e%#$l $lle($*# 's ! *+e "e*#*# ' $%e *%ue0 #* s+$ll %e'&e% 8u&(3e'* &#ss l)#'( *+e c %" %$*# ' $'& &#%ec*#'( suc+ &#s" s#*# ' ! #*s $sse*s $s 8us*#ce %e:u#%es0 $'& 3$1 $"" #'* $ %ece#)e% * c llec* suc+ $sse*s $'& "$1 *+e &e/*s ! *+e c %" %$*# '. Sec. ;. What shall constitute record. - T+e "e*#*# '0 %&e%s0 "% ! ! "u/l#c$*# ' $'& " s*#'(0 /8ec*# 's !#le&0 &ecl$%$*# ' ! &#ss lu*# '0 $'& $'1 e)#&e'ce *$6e'0 s+$ll c 's*#*u*e *+e %ec %& #' *+e c$se.

RULE 1C=

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL C.ILDREN Sec. 1. :enue. - 9+e%e judicial approval of a voluntary recognition of a minor natural child is re&uired, such child or his parents shall obtain the same by filing a petition to that effect ith the (ourt of ;irst )nstance of the province in hich the child resides. I' *+e C#*1 ! M$'#l$0 *+e "e*#*# ' s+$ll /e !#le& #' *+e Ju)e'#le $'& D 3es*#c Rel$*# 's C u%*. Boluntary recognition+ admission of the fact of paternity or maternity by the presumed parent, e$pressed in the form prescribed by the (ivil (ode. )t is provided in Art. 9IF of (( that it shall be made in the record of birth, a of record, or in any authentic riting. ill, a statement before a court

.he action shall be brought ithin the time in Art. #I/: .he action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. )n these cases, the heirs shall have a period of five years ithin hich to institute the action. "$ception: Art. #I9. .he filiation of legitimate children is established by any of the follo ing: (#) .he record of birth appearing in the civil register or a final judgment; or (9) An admission of legitimate filiation in a public document or a private hand ritten instrument and signed by the parent concerned. An action based on voluntary ackno ledgement may be brought after the death of the father.

Sec. 2. (ontents of petition. - T+e "e*#*# ' ! % 8u&#c#$l $""% )$l 3#' % '$*u%$l c+#l& s+$ll c '*$#' *+e ! ll ,#'( $lle($*# 's?a) .he jurisdictional facts;

! $ ) lu'*$%1 %ec ('#*# '

! $

(b) .he names and residences of the parents ho ackno ledged the child, or of either of them, and their compulsory heirs, and the person or persons ith hom the child lives; (c) .he fact that the recognition made by the parent or parents took place in a statement before a court of record or in an authentic riting0 copy of the statement or writing being attached to the petition 1udicial approval is needed if the recognition of the minor is effected, not through a record of birth or in a ill but through a statement in a court of record or an authentic document. Sec. 2. 0rder for hearing. - U" ' *+e !#l#'( ! *+e "e*#*# '0 *+e c u%*0 /1 $' %&e% %ec#*#'( *+e "u%" se ! *+e s$3e0 s+$ll !#7 *+e &$*e $'& "l$ce ! % *+e +e$%#'( *+e%e !0 ,+#c+ &$*e s+$ll ' * /e 3 %e *+$' s#7 ?>B 3 '*+s $!*e% *+e e'*%1 ! *+e %&e%0 $'& s+$ll0 3 %e )e%0 cause a copy of the order to be served personally or by mail upon the interested parties, and published once a eek for three (/) consecutive eeks, in a ne spaper or ne spapers of general circulation in the province. Sec. ;. 0pposition. - A'1 interested party must, ithin fifteen (#D) days from service, or from the last date of publication, of the order referred to in the ne$t preceding section, file his opposition to the petitio '0 s*$*#'( *+e (% u'&s % %e$s 's *+e%e! %. Sec. =. 4udgment. - I!0 !% 3 *+e e)#&e'ce "%ese'*e& &u%#'( *+e +e$%#'(0 the court is satisfied that the recognition of the minor natural child as illingly and voluntarily made by the parent or parents concerned, and that the recognition is for the best interest of the child, #* s+$ll %e'&e% 8u&(3e'* (%$'*#'( 8u&#c#$l $""% )$l ! suc+ %ec ('#*# '. 4ays of recognition: Boluntary, made in:

*ecords of birth, =y ill and by any other public instrument.

)nvoluntary, enforced by either civil or criminal action, or made in:

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

=y an incontrovertible paper ritten by the parent e$pressly recognizing his paternity; =y giving such child the status of a natural child of the father, justified by direct act of the child of the father or his family; =y a criminal action for rape, seduction or abduction. .he putative parent should thus be given the opportunity to affirm or deny the childs filiation, and this, he or she cannot do if he or she is already dead. (onsent re&uired of persons of age implicitly. ho has been voluntarily recognized may be given e$pressly or

;or minors, judicial approval is needed to protect her from prejudice. ?ack or insufficiency of judicial approval is not a defect available to the recognizing parent but one hich the minor may raise or aive.

Sec. >. Service of judgment upon civil registrar. - A copy of the judgment %e'&e%e& #' $cc %&$'ce ,#*+ *+e "%ece&#'( sec*# ' s+$ll /e se%)e& u" ' *+e civil registrar hose duty it shall be to enter the same in the register.

RULE 1C> CONSTITUTION OF FAMILY .OME Sec. 1. Who may constitute. " .he head of a family o ning a house and the land on hich it is situated may constitute the same into a family home by filing a verified petition to that effect ith the (ourt of ;irst )nstance of the province or city ere the property is located. )n the (ity of 'anila, the petition shall be filed in the 1uvenile and -omestic *elations (ourt. 9+e' *+e%e #s danger that a person obliged to give support may lose his or her fortune because of grave mismanagement or on account of riotous living0 his or her spouse, if any, and a majority of those entitled to be supported by him or by her may petition the (ourt of ;irst )nstance for the creation of the family home. Sec. 2. C '*e'*s ?$B Desc%#"*# ' ?/B A' es*#3$*e ! "e*#*# '. T+e "e*#*# ' s+$ll c '*$#' *+e ! ll ,#'( "$%*#cul$%s! *+e "% "e%*1< ! #*s $c*u$l )$lue<

?cB A s*$*e3e'* *+$* *+e "e*#*# 'e% #s $c*u$ll1 %es#&#'( #' *+e "%e3#ses< ?&B T+e e'cu3/%$'ces *+e%e '< ?eB T+e '$3es $'& $&&%esses ! $ll *+e c%e&#* %s ! "e*#*# 'e% % +e$& 3 %*($(ees $'& *+e% "e%s 's ,+ +$)e $' #'*e%es* #' *+e "% "e%*1< ?!B T+e '$3es ! $ll *+e /e'e!#c#$%#es ! *+e !$3#l1 + 3e. ! *+e !$3#l1 $'& ! $ll

Sec. 2. .otice and publication. - T+e c u%* s+$ll ' *#!1 *+e c%e&#* %s0 3 %*($(ees $'& $ll *+e% "e%s 's ,+ +$)e $' #'*e%es* #' *+e es*$*e0 ! *+e !#l#'( ! *+e "e*#*# '0 c$us#'( c "#es *+e%e ! * /e se%)e& u" ' *+e30 $'& "u/l#s+e& 'ce $ ,ee6 ! % *+%ee ?2B c 'secu*#)e ,ee6s #' $ 'e,s"$"e% ! (e'e%$l c#%cul$*# '. T+e "e*#*# ' s+$ll0 3 %e )e%0 /e c$use& * /e " s*e& #' $ c 's"#cu us "l$ce #' *+e "$%cel ! l$'& 3e'*# 'e& *+e%e#'0 $'& $ls #' $ c 's"#cu us "l$ce ! *+e 3u'#c#"$l /u#l&#'( ! *+e 3u'#c#"$l#*1 % c#*1 #' ,+#c+ *+e l$'& #s s#*u$*e&0 ! % $* le$s* ! u%*ee' ?1;B &$1s "%# % * *+e &$1 ! *+e +e$%#'(. Sec. ;. 0bjection and date of hearing. - I' *+e ' *#ce $'& "u/l#c$*# ' %e:u#%e& #' *+e "%ece&#'( sec*# '0 *+e c u%* s+$ll %e:u#%e *+e #'*e%es*e& "$%*#es * !#le *+e#% /8ec*# ' * *+e "e*#*# ' ,#*+#' $ "e%# & ! ' * less *+$' *+#%*1 ?2CB &$1s !% 3 %ece#"* ! ' *#ce % !% 3 *+e &$*e ! l$s* "u/l#c$*# '0 $'& s+$ll !#7 *+e &$*e $'& *#3e ! *+e +e$%#'( ! *+e "e*#*# '.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. =. 0rder. - A!*e% +e$%#'(0 #! *+e c u%* !#'&s *+$* *+e $c*u$l )$lue ! *+e "% " se& !$3#l1 + 3e & es ' * e7cee& *,e'*1 *+ us$'& "es s0 % *+#%*1 *+ us$'& "es s #' c+$%*e%e& c#*#es0 $'& *+$* ' *+#%& "e%s ' #s "%e8u&#ce& *+e%e/10 % *+$* c%e&#* %s +$)e /ee' (#)e' su!!#c#e'* secu%#*1 ! % *+e#% c%e&#*s0 *+e "e*#*# ' s+$ll /e $""% )e&. Sec. >. 7egistration of order. - A ce%*#!#e& c "1 ! *+e %&e% ! *+e c u%* $""% )#'( *+e es*$/l#s+3e'* ! *+e !$3#l1 + 3e s+$ll /e !u%'#s+e& *+e %e(#s*e% ! &ee&s ,+ s+$ll %ec %& *+e s$3e #' *+e %e(#s*%1 ! "% "e%*1.

*epealed by the ;(: 3o need to file verified petition. *elevant provisions of ;(. !rt &(* )he family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated (**3a) Art. #D/. T+e !$3#l1 + 3e #s &ee3e& c 's*#*u*e& ' $ + use $'& l * !% 3 *+e *#3e #* #s ccu"#e& $s $ !$3#l1 %es#&e'ce. F% 3 *+e *#3e ! #*s c 's*#*u*# ' $'& s l '( $s $'1 ! #*s /e'e!#c#$%#es $c*u$ll1 %es#&es *+e%e#'0 *+e !$3#l1 + 3e c '*#'ues * /e suc+ $'& #s e7e3"* !% 3 e7ecu*# '0 ! %ce& s$le % $**$c+3e'* e7ce"* $s +e%e#'$!*e% "% )#&e& $'& * *+e e7*e'* ! *+e )$lue $ll ,e& /1 l$,. (99/a) -eemed constituted as a family home upon effectivity of the ;( on Aug./, #EFF not Aug. 8 one year after its publication in the 'anila (hronicle on Aug. 8, #EFI.

Art. #D8. .he beneficiaries of a family home are: (#) .he husband and ife, or an unmarried person ho is the head of a family; and

(9) .heir parents, ascendants, descendants, brothers and sisters, hether the relationship be legitimate or illegitimate, ho are living in the family home and ho depend upon the head of the family for legal support. (99Aa) Art. #DD. .he family home shall be e$empt from e$ecution, forced sale or attachment e$cept: (#) ;or nonpayment of ta$es; (9) ;or debts incurred prior to the constitution of the family home; (/) ;or debts secured by mortgages on the premises before or after such constitution; and (8) ;or debts due to laborers, mechanics, architects, builders, materialmen and others rendered service or furnished material for the construction of the building. (98/a) ho have

Art. #DA. .he family home must be part of the properties of the absolute community or the conjugal partnership, or of the e$clusive properties of either spouse ith the latter6s consent. )t may also be constituted by an unmarried head of a family on his or her o n property. 3evertheless, property that is the subject of a conditional sale on installments here o nership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (99Ia, 99Fa) Art. #DI. .he actual value of the family home shall not e$ceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and t o hundred thousand pesos in rural areas, or such amounts as may hereafter be fi$ed by la . )n any event, if the value of the currency changes after the adoption of this (ode, the value most favorable for the constitution of a family home shall be the basis of evaluation. ;or purposes of this Article, urban areas are deemed to include chartered cities and municipalities hose annual income at least e&uals that legally re&uired for chartered cities. All others are deemed to be rural areas. (9/#a)

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

!rt &(3 )he family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter#s spouse, and a majority of the beneficiaries of legal age 'n case of conflict, the court shall decide (*3(a) A%*. 1=A. T+e !$3#l1 + 3e s+$ll c '*#'ue &es"#*e *+e &e$*+ ! 'e % / *+ s" uses % ! *+e u'3$%%#e& +e$& ! *+e !$3#l1 ! % $ "e%# & ! *e' 1e$%s % ! % $s l '( $s *+e%e #s $ 3#' % /e'e!#c#$%10 $'& *+e +e#%s c$'' * "$%*#*# ' *+e s$3e u'less *+e c u%* !#'&s c 3"ell#'( %e$s 's *+e%e! %. T+#s %ule s+$ll $""l1 %e($%&less ! ,+ e)e% ,'s *+e "% "e%*1 % c 's*#*u*e& *+e !$3#l1 + 3e. ?22@$B Art. #A0. 4hen a creditor hose claims is not among those mentioned in Article #DD obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually orth more than the ma$imum amount fi$ed in Article #DI, +e 3$1 $""l1 * *+e c u%* ,+#c+ %e'&e%e& *+e 8u&(3e'* ! % $' %&e% &#%ec*#'( *+e s$le ! *+e "% "e%*1 u'&e% e7ecu*# '. T+e c u%* s+$ll s %&e% #! #* !#'&s *+$* *+e $c*u$l )$lue ! *+e !$3#l1 + 3e e7cee&s *+e 3$7#3u3 $3 u'* $ll ,e& /1 l$, $s ! *+e *#3e ! #*s c 's*#*u*# '. I! *+e #'c%e$se& $c*u$l )$lue e7cee&s *+e 3$7#3u3 $ll ,e& #' A%*#cle 1=7 $'& %esul*s !% 3 su/se:ue'* ) lu'*$%1 #3"% )e3e'*s #'*% &uce& /1 *+e "e%s ' % "e%s 's c 's*#*u*#'( *+e !$3#l1 + 3e0 /1 *+e ,'e% % ,'e%s ! *+e "% "e%*10 % /1 $'1 ! *+e /e'e!#c#$%#es0 *+e s$3e %ule $'& "% ce&u%e s+$ll $""l1. At the e$ecution sale, no bid belo the value allo ed for a family home shall be considered. .he proceeds shall be applied first to the amount mentioned in Article #DI, and then to the liabilities under the judgment and the costs. .he e$cess, if any, shall be delivered to the judgment debtor. (98Ia, 98Fa) Art. #A#. ;or purposes of availing of the benefits of a family home as provided for in this (hapter, a person may constitute, or be the beneficiary of, only one family home. A%*. 1>2. T+e "% )#s# 's #' *+#s C+$"*e% s+$ll $ls s$#& "% )#s# 's $%e $""l#c$/le. ( )e%' e7#s*#'( !$3#l1 %es#&e'ces #'s !$% $s

.his does not mean that Arts. #D9 and #D/ of the said code have a retroactive effect such that all e$isting family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the ;( and are e$empt from e$ecution for the payment of obligations incurred before the effectivity of the ;(.

RULE 1C7 ABSENTEES Sec. 1. Appointment of representative. - 9+e' $ person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired0 $'1 #'*e%es*e& "$%*10 %el$*#)e % !%#e'&0 3$1 "e*#*# ' *+e C u%* ! F#%s* I's*$'ce ! *+e "l$ce ,+e%e *+e $/se'*ee %es#&e& /e! %e +#s &#s$""e$%$'ce ! % *+e $"" #'*3e'* ! $ "e%s ' * %e"%ese'* +#3 "% )#s# '$ll1 #' $ll *+$* 3$1 /e 'ecess$%1. I' *+e C#*1 ! M$'#l$0 *+e "e*#*# ' s+$ll /e !#le& #' *+e Ju)e'#le $'& D 3es*#c Rel$*# 's C u%*. A%*. 2@1. 9+e' $ person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, a* *+e #'s*$'ce ! $' #'*e%es*e& "$%*10 $ %el$*#)e0 % $ !%#e'&0 3$1 $"" #'* $ "e%s ' * %e"%ese'* +#3 #' $ll *+$* 3$1 /e 'ecess$%1. T+#s s$3e %ule s+$ll /e /se%)e& ,+e' u'&e% s#3#l$% c#%cu3s*$'ces *+e " ,e% c '!e%%e& /1 *+e $/se'*ee +$s e7"#%e&. A%*. 2@2. T+e $"" #'*3e'* %e!e%%e& * #' *+e "%ece&#'( $%*#cle +$)#'( /ee' 3$&e0 *+e 8u&(e s+$ll *$6e *+e 'ecess$%1 3e$su%es * s$!e(u$%& *+e %#(+*s $'& #'*e%es*s ! *+e $/se'*ee $'& s+$ll s"ec#!1 *+e " ,e%s0 /l#($*# 's $'& %e3u'e%$*# ' ! +#s %e"%ese'*$*#)e0 %e(ul$*#'( *+e30 $cc %&#'( * *+e c#%cu3s*$'ces0 /1 *+e %ules c 'ce%'#'( (u$%&#$'s.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

Sec. 2. 3eclaration of absence' who may petition. - !fter the lapse of two (*) years from his disappearance and without any news about the absentee or since the receipt of the last news, % of five (D) years in case the absentee has left a person in charge of the administration of his property0 *+e &ecl$%$*# ' ! +#s $/se'ce $'& $"" #'*3e'* ! $ *%us*ee % $&3#'#s*%$* % 3$1 /e $""l#e& ! % /1 $'1 ! *+e ! ll ,#'(?$B T+e s" use "%ese'*< ?/B T+e +e#%s #'s*#*u*e& #' $ ,#ll0 ,+ ?cB T+e %el$*#)es ,+ 3$1 "%ese'* $' $u*+e'*#c c "1 ! #'*es*$c1< $'& *+e ! *+e s$3e<

, ul& succee& /1 *+e l$,

?&B T+ se ,+ +$)e )e% *+e "% "e%*1 c '&#*# ' ! +#s &e$*+.

! *+e $/se'*ee s 3e %#(+* su/ %&#'$*e& *

!rt 334 )wo years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared (&34) !rt 33( )he following may ask for the declaration of absence5 (&) )he spouse present; (*) )he heirs instituted in a will, who may present an authentic copy of the same; (3) )he relatives who may succeed by the law of intestacy; (4) )hose who may have over the property of the absentee some right subordinated to the condition of his death (&3() %etition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the ife could be combined and adjudicated in the same proceedings.

Sec. 2. (ontents of petition. - T+e "e*#*# ' ! % *+e $"" #'*3e'* ! $ %e"%ese'*$*#)e0 % ! % *+e &ecl$%$*# ' ! $/se'ce $'& *+e $"" #'*3e'* ! $ *%us*ee % $' $&3#'#s*%$* %0 3us* s+ , *+e ! ll ,#'((a) .he jurisdictional facts; (b) .he names, ages, and residences of the heirs instituted in the and of the relatives ho ould succeed by the la of intestacy; (c) .he names and residences of creditors and others property of the absentee; ill, copy of hich shall be presented,

ho may have any adverse interest over the

(d) .he probable value, location and character of the property belonging to the absentee. Sec. ;. 1ime of hearing' notice and publication thereof. - 9+e' $ "e*#*# ' ! % *+e $"" #'*3e'* ! $ %e"%ese'*$*#)e0 % ! % *+e &ecl$%$*# ' ! $/se'ce $'& *+e $"" #'*3e'* ! $ *%us*ee % $&3#'#s*%$* %0 #s !#le&0 *+e c u%* s+$ll !#7 $ &$*e $'& "l$ce ! % *+e +e$%#'( *+e%e ! ,+e%e $ll c 'ce%'e& 3$1 $""e$% * c '*es* *+e "e*#*# '. (opies of the notice of the time and place fi$ed for the hearing shall be served upon the kno n heirs, legatees, devisees, creditors and other interested persons, at least ten (#0) days before the day of the hearing0 $'& shall be published once a wee+ for three !;# consecutive wee+s prior to the time designated for the hearing& in a newspaper of general circulation in the province or city where the absentee resides0 $s *+e c u%* s+$ll &ee3 /es*. Sec. =. 0pposition. - A'1 'e $""e$%#'( * contest the petition shall state in riting his grounds therefor0 $'& served a copy thereof on the petitioner and other interested parties on or before the date designated for the hearing. Sec. >. Proof at hearing' order. - A* *+e hearing, compliance ith the provisions of section 8 of this rule must first be sho n. U" ' s$*#s!$c* %1 "% ! ! *+e $lle($*# 's #' *+e "e*#*# '0 *+e c u%* s+$ll #ssue $' %&e% (%$'*#'( *+e s$3e $'& $"" #'*#'( *+e %e"%ese'*$*#)e0 *%us*ee % $&3#'#s*%$* % ! % *+e $/se'*ee. T+e 8u&(e s+$ll *$6e *+e 'ecess$%1 3e$su%es * s$!e(u$%& *+e %#(+*s $'& #'*e%es*s ! *+e $/se'*ee $'& s+$ll s"ec#!1 *+e " ,e%s0 /l#($*# 's $'& %e3u'e%$*# ' ! +#s %e"%ese'*$*#)e0 *%us*ee % $&3#'#s*%$* %0 %e(ul$*#'( *+e3 /1 *+e %ules c 'ce%'#'( (u$%&#$'s.

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

)n case of declaration of absence, the same shall not take effect until si$ (A) months after its publication in a ne spaper of general circulation designated by the court and in the 2fficial :azette. Art. ;<=. 1he judicial declaration of absence shall not ta+e effect until six months after its publication in a newspaper of general circulation. Sec. 7. Who may be appointed. - I' *+e $"" #'*3e'* ! $ %e"%ese'*$*#)e0 the spouse present shall be preferred hen there is no legal separation. )f the absentee left no spouse, or if the spouse present is a minor or other ise incompetent, any competent person may be appointed by the court.

I' c$se ! &ecl$%$*# ' ! $/se'ce0 *+e *%us*ee % $&3#'#s*%$* % /e $"" #'*e& #' $cc %&$'ce ,#*+ *+e "%ece&#'( "$%$(%$"+.

! *+e $/se'*eeFs "% "e%*1 s+$ll

Art. ;<;. n the appointment of a representative& the spouse present shall be preferred when there is no legal separation. f the absentee left no spouse& or if the spouse present is a minor& any competent person may be appointed by the court.

Sec. @. 1ermination of administration. - T+e trusteeship or administration of the property of the absentee shall cease upon order of the court #' $'1 ! *+e ! ll ,#'( c$ses(a) 4hen the absentee appears personally or by means of an agent; (b) 4hen the death of the absentee is proved and his testate or intestate heirs appear; (c) 4hen a third person appears, sho ing by a proper document that he has ac&uired the absentee6s property by purchase or other title. I' *+ese c$ses the trustee or administrator shall cease in the performance of his office, and the property shall be placed at the disposal of those ho may have a right thereto. Art. ;<>. 1he administration shall cease in any of the following cases? !@# When the absentee appears personally or by means of an agent' !"# When the death of the absentee is proved and his testate or intestate heirs appear' !;# When a third person appears& showing by a proper document that he has ac-uired the absentee6s property by purchase or other title. n these cases the administrator shall cease in the performance of his office& and the property shall be at the disposal of those who may have a right thereto. -eclaration of absence is unnecessary here there are no properties. 3o independent action or special proceeding for presumption of death. "$ception: As provided in the ;(, for the purpose of contracting a second valid marriage, he or she must file a summary proceeding for the declaration of the presumptive death of the absentee ithout prejudice to the latters reappearance. .his is to prevent bigamy; good faith is then established. Absent spouse: missing spouse for at least 8 years, it being unkno n hether or not he or she is still alive, and the present spouse having a ell+founded belief that the missing spouse is already dead. 8 years is reduced to 9 years if there as danger of death, to it: .he missing person as on board a vessel (all kinds of ater>aircraft) lost during a sea voyage, or an aeroplane hich is missing; .he missing person as in the armed forces and had taken part in ar (military operations, armed fighting, includes nurses, doctors, reporters); .he missing person as in danger of death under other circumstances (earth&uakes, fires,landslides,etc). 9 years is computed from the occurrence of the event from hich death is presumed. (larify the other periods like the D+I+#0 rule in successionJKJ

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

!( ruled in several cases here due to circumstances a person ithout aiting for the period to e$pire and be presumed dead. RULE 1C@ CANCELLATION OR CORRECTION OF ENTRIES IN T.E CIVIL REGISTRY Sec. 1. Who may file petition. - Any person interested in any act, event, order or decree concerning the civil status of persons hich has been recorded in the civil register0 3$1 !#le $ )e%#!#e& "e*#*# ' ! % *+e c$'cell$*# ' % c %%ec*# ' ! $'1 e'*%1 %el$*#'( *+e%e* 0 with the .ourt of -irst 'nstance of the province where the corresponding civil registry is located as already considered as dead

Sec. 2. Entries subject to cancellation or correction. - U" ' ( & $'& )$l#& (% u'&s0 *+e ! ll ,#'( e'*%#es #' *+e c#)#l %e(#s*e% 3$1 /e c$'celle& % c %%ec*e&- ? a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) ackno ledgments of natural children; (j) naturalization (k) election, loss or recovery of citizenship (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name. Sec. 2. Parties. - 9+e' c$'cell$*# ' % c %%ec*# ' ! $' e'*%1 #' *+e c#)#l %e(#s*e% #s s u(+* , the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding Sec. ;. .otice and publication. - 6pon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition .he court shall also cause the order to be published once a eek for three (/) consecutive eeks in a ne spaper of general circulation in the province. Sec. =. 0pposition. - T+e civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may0 ithin fifteen (#D) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto. Sec. >. Expediting proceedings. - T+e c u%* #' ,+#c+ *+e "% cee&#'( #s /% u(+* 3$1 3$6e %&e%s e7"e&#*#'( *+e "% cee&#'(s0 $'& 3$1 $ls (%$'* "%el#3#'$%1 #'8u'c*# ' ! % *+e "%ese%)$*# ' ! *+e %#(+*s ! *+e "$%*#es "e'&#'( suc+ "% cee&#'(s. Sec. 7. 0rder. - A!*e% +e$%#'(0 the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. I' e#*+e% c$se0 $ ce%*#!#e& c "1 ! *+e 8u&(3e'* s+$ll /e se%)e& u" ' *+e c#)#l %e(#s*%$% c 'ce%'e& ,+ s+$ll $'' *$*e *+e s$3e #' +#s %ec %&.

RULE 1CA APPEALS IN SPECIAL PROCEEDINGS Sec. 1. 0rders or judgments from which appeals may be ta+en. - A' interested person may appeal in special proceedings !% 3 $' %&e% % 8u&(3e'* %e'&e%e& /1 $ C u%* ! F#%s* I's*$'ce % $ Ju)e'#le $'& D 3es*#c Rel$*# 's C u%*0 ,+e%e suc+ %&e% % 8u&(3e'*?$B All ,s % &#s$ll ,s $ ,#ll< ?/B De*e%3#'es ,+ $%e *+e l$,!ul +e#%s es*$*e * ,+#c+ suc+ "e%s ' #s e'*#*le&< ! $ &ece$se& "e%s '0 % *+e &#s*%#/u*#)e s+$%e ! *+e

?cB All ,s % &#s$ll ,s0 #' ,+ le % #' "$%*0 $'1 cl$#3 $($#'s* *+e es*$*e ! $ &ece$se& "e%s '0 % $'1 cl$#3 "%ese'*e& ' /e+$l! ! *+e es*$*e #' !!se* * $ cl$#3 $($#'s* #*< ?&B Se**les *+e $cc u'* ! $' e7ecu* %0 $&3#'#s*%$* %0 *%us*ee % (u$%&#$'<

?eB C 's*#*u*es0 #' "% cee&#'(s %el$*#'( * *+e se**le3e'* ! *+e es*$*e ! $ &ece$se& "e%s '0 % *+e $&3#'#s*%$*# ' ! $ *%us*ee % (u$%&#$'0 $ !#'$l &e*e%3#'$*# ' #' *+e l ,e% c u%* ! *+e %#(+*s ! *+e "$%*1 $""e$l#'(0 e7ce"* *+$* ' $""e$l s+$ll /e $ll ,e& !% 3 *+e $"" #'*3e'* ! $ s"ec#$l $&3#'#s*%$* %< $'&

N *s +e$)e'l1 ' *es 555

Remedial Law: Special Proceedings Herrera Abridged

?!B Is *+e !#'$l %&e% % 8u&(3e'* %e'&e%e& #' *+e c$se0 $'& $!!ec*s *+e su/s*$'*#$l %#(+*s "e%s ' $""e$l#'(0 u'less #* /e $' %&e% (%$'*#'( % &e'1#'( $ 3 *# ' ! % $ 'e, *%#$l %ec 's#&e%$*# '. ! *+e % ! %

Sec. 2. Advance distribution in special proceedings. - N *,#*+s*$'&#'( $ "e'&#'( c '*% )e%s1 % $""e$l #' "% cee&#'(s * se**le *+e es*$*e ! $ &ece&e'*0 *+e c u%* 3$10 #' #*s &#sc%e*# ' $'& u" ' suc+ *e%3s $s #* 3$1 &ee3 "% "e% $'& 8us*0 "e%3#* *+$* suc+ "$%* ! *+e es*$*e $s 3$1 ' * /e $!!ec*e& /1 *+e c '*% )e%s1 % $""e$l /e &#s*%#/u*e& $3 '( *+e +e#%s % le($*ees0 u" ' c 3"l#$'ce ,#*+ *+e c '&#*# 's se* ! %*+ #' Rule AC ! *+ese %ules.

N *s +e$)e'l1 ' *es 555