Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Ronald Chua
RULE 2
ACTIONS IN GENERAL
(OLD RULES OF COURT)
ISSUE/S:
Whether the CFI, in special proceedings is authorized under
the law to appoint assessors for the purpose of fixing the amount due to
an administrator or executor for his services and expenses in the care,
management and settlement of the estate of a deceased person.
HELD:
NO. upon an examination of Section 2 of Act no. 190, which
gives us an interpretation of the words used in said Act that a distinction is
made between an action and a special proceeding.
An action is a formal demand of ones right in a court in a
manner prescribed by the court or by the law. It is the method of applying
legal remedies according to definite established rules.
The term special proceeding may be defined as an application
or proceeding to establish the status or right of a party or a particular fact.
Usually, in special proceeding, no formal pleadings are required, unless the
1|
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
and costs, the amount of which must be specifically alleged: Provided,
That where there are several claims or causes of action between the same
or different parties, embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or
different transactions
Section 35. Special jurisdiction in certain cases. In the absence of
all the Regional Trial Judges in a province or city, any Metropolitan Trial
Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may hear and
decide petitions for a writ of habeas corpus or applications for bail in
criminal cases in the province or city where the absent Regional Trial
Judges sit.
Section 39. Appeals. The period for appeal from final orders,
resolutions, awards, judgments, or decisions of any court in all cases shall
be fifteen (15) days counted from the notice of the final order, resolution,
award, judgment, or decision appealed from: Provided however, That in
habeas corpus cases, the period for appeal shall be forty-eight (48) hours
from the notice of the judgment appealed from.
No record on appeal shall be required to take an appeal. In lieu thereof,
the entire record shall be transmitted with all the pages prominently
numbered consecutively, together with an index of the contents thereof.
This section shall not apply in appeals in special proceedings and in other
cases wherein multiple appeals are allowed under applicable provisions of
the Rules of Court.
JURISDICTION
MANGALIMAN vs. GONZALES, 36 SCRA 462 (1970)
FACTS:
Mangaliman was an illegitimate daughter of Alejandro Gonzales.
In a letter, she was given a legacy of 1/8 undivided portion of Hacienda
Evangelista, but since she was still a minor then, her share was placed
under the guardianship of her half- brother Alejandro Gonzales, Jr.
Respondent- apellee, Manuel Gonzales is a legitimate son of the testator
and the administrator of the estate
Hacienda Evangelista, however, for alleged failure of the other
heirs to pay the aforesaid amount, was levied upon and subsequently sold
by the probate court. A final deed of sale was issued to respondent a year
later after the failure of the petitioners guardian to redeem her undivided
share.
In April 1962, petitioner already of age, filed a petition before
the same probate court for the reconveyance of her 1/8 undivided share
contending that respondent had obtained the subsequent writs of
execution through fraud and misrepresentations.
Probate court ruled that respondent may not be divested of title
under a probate proceeding but in an independent suit filed with
competent court. Hence this appeal by petitioner.
ISSUE/S:
Whether CFI, as probate court, has jurisdiction to entertain a
petitioners motion for reconveyance
HELD:
NO. the CFI, acting as a probate court, has limited jurisdiction
and cognizance of matters of probate both testate and intestate. But this
should be understood to comprehend only cases related to those powers
specified by law, and cannot extend to the adjudication of collateral
matters.
The petition for reconveyance has given rise to a controversy
involving rights over a real property which would require the presentation
of evidence and the determination of legal question that should be
ventilated in a court of general jurisdiction.
2|
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Cancellation or correction of entries in the civil registry.
Q
A
Special(proceedings(are(not(limited(to(the(case(enumerated(in(
Sec.(1(but(includes(cases(the(purpose(of(which(is(to(establish(the(
status(or(right(of(a(party(or(a(particular(fact.((
(
Other&Special&Proceedings&
(a)(Liquidation(proceedings(
(b)(Corporate(Rehabilitation(
(c)(Recognition(and(enforcement(of(arbitration(clause(or(award((RA(
9285)(
(d)(Vacation,(setting(aside(correction(or(modification(of(an(arbitral(
award((RA(9285)(
(e)(Any(application(with(a(court(for(arbitration(assistance(and(
supervision((RA(9285)(
(f)(Arbitration(under(a(contract(or(submission((Sec.(22,(RA(876)(
!
Sec. 2. Applicability of rules of civil actions. - In the absence of
special provisions, the rules provided for in ordinary actions shall be,
as far as practicable, applicable in special proceedings.
!
In(the(absence(of(special(provisions,(the(rues(provided(for(in(
ordinary(actions(shall(be(as(practicable,(applicable(in(special(
proceedings.
Ordinary Civil
Action
One by which a party
sues another for the
enforcement or
protection of a right
or the prevention of a
redress or wrong
Governed by the rules
for ordinary civil
actions
Involves two or more
parties
Initiated by complaint
Based on a cause of
action
Special Proceeding
Remedy by which a
party seeks to
establish a status, a
right or a particular
fact
Governed by special
rules and ordinary
rules apply
suppletorily
May involve only one
party
Initiated by petition
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Eliezars appointment was only 90,000 more or less. The CA granted
the writ of certiorari and prohibition. Hence this appeal.
ISSUE/S:
Whether the CA has appellate jurisdiction over special proceedings.
HELD:
NO. The CA has no appellate jurisdiction as the appointment of
Eliezar was only incidental to the probate proceedings and the value of the
estate in question is more than 200,000 ( 362,000). Under Section 2,
Rule 75, the property to be administered and liquidated in in/testate
proceeding is the entire estate and not merely the part of the conjugal
property pertaining to the deceased spouse.
Not having appellate jurisdiction, as the amount is over
200,000, the CA cannot have original jurisdiction to issue the 2 above
mentioned writs as such was merely incidental.
Note that what is at issue between the parties is the annulment
of the appointment of Eliezar and is such a controversy involving a contest
for administration where amount or value of the entire estate is in
controversy. Maravillas contention is that appeals in special proceedings
are within the exclusive appellate jurisdiction of the CA as they are not
enumerated in Section 17 of the Judiciary Act. On the other hand, it has
been held that the term civil cases includes special proceedings. Such is
untenable as a special proceeding has never been held to be a civil case.
Further, Section 2, Rule 23 provides that the rules of ordinary civil action
are applicable in special proceedings if they are not inconsistent with or
serve to complement special proceedings.
RULE 73
VENUE AND PROCESS
(
BP&129,&Section&19.&Jurisdiction!in!Civil!Cases!(Regional(Trial(Courts(
shall(exercise(exclusive(original(jurisdiction:(
X(x(X(
(4)( In( all( matters( of( probate,( both( testate( and( intestate,( where( the(
gross(value(of(the(estate(exceeds(P100,000(or,(in(probate(matters(in(
Metro(Manila,(where(such(gross(value(exceeds(P200,000.(
(
Conversion&of&an&Intestate&into&Testate&Proceeding&
The(probate(of(a(will(is(mandatory(and(therefore,(takes(
precedence(over(intestate(proceedings.(
The(conversion(of(an(intestate(proceeding(into(a(testate(one(is(
entirely(a(matter(of(form(and(lies(within(the(sound(discretion(of(
the(court(
The(mere(discovery(of(s(document(purporting(to(be(the(last(will(
and(testament(of(the(decedent(after(appointment(of(an(
administrator(and(assumption(that(the(decedent(died(intestate(
4|
does(not,(however,(ipso!facto(nullify(the(letters(of(
administration(already(issued(or(even(authorize(their(
revocation(until(the(Will(has(been(proved(and(allowed.(
(
Powers&and&Duties&of&a&Probate&Court:&
(a)(The(court(orders(the(probate(of(the(wall(of(the(decedent(
(b)(Grants(letters(administration(of(the(party(best(entitled(thereto(
or(to(any(qualified(applicant(
(c)(Supervise(and(controls(all(acts(of(administration(
(d)(Hears(and(approves(claims(against(the(estate(of(the(deceased(
(e)(Orders(payment(of(lawful(debts(
(f)(Authorizes(sale,(mortgage(or(any(encumbrance(of(real(estate(
(g)(Directs(the(delivery(of(the(estate(to(those(entitled(thereto(
(
The(court(acts(as(a(TRUSTEE.(
(
Q What are the steps in determining which court has
jurisdiction over the probate of the will?
A The following must first be determined:
1. whether the decedent is a resident of the Philippines or not
2. gross value of the estate (to determine whether it is the
MTC/RTC which has jurisdiction and whether it could be
subject to summary settlement of estate under Rule 74)
3. the residence of the decedent to determine the venue
4. whether the deceased left any debts
5. whether the deceased left a will
! if there is no will and no debts, apply Rule 74 on the summary
settlement of estates
Extent&of&Jurisdiction&
Probate( courts( are( courts( of( LIMITED( jurisdiction.( It( may( only(
determine( and( rule( upon( issues( relating( to( the( settlement( of( the(
estate,(namely((LAD):&
(a)(Administration(of(the(estate(
(b)(Liquidation(of(the(estate;(and(
(c)(Distribution(of(the(estate.(
(
Q What is the jurisdiction of a probate court?
A Probate proceedings are purely statutory. Thus, a probate courts
jurisdiction is limited and special and all acts in excess of the
statutory power conferred are nugatory and do not bind those who
have invoked its authority or submitted to its decision. The authority/
jurisdiction cannot expand to collateral matters not arising out of or in
any way related to the settlement and adjudication of the properties
of the deceased.
The( jurisdiction( of( the( RTC( as( a( probate( or( intestate( court(
relates(only(to(matters(having(to(do(with(the(settlement(of(the(
estate( and( probate( of( will( of( deceased( persons( and( the(
appointment( and( removal( of( administrators,( executors,(
guardians( and( trustees( but( does( not( extend( to( the(
determination( of( questions( of( ownership( that( arise( during( the(
proceedings.( The( intestate( court( may( pass( upon( the( title( to( a(
certain( property( for( the( purpose( of( determining( whether( the(
same( should( or( should( not( be( included( in( the( inventory( but(
such( determination( is( not( conclusive( and( is( subject( to( final(
decision( in( a( separate( action( regarding( ownership( which( may(
be(constituted(by(the(parties.(
(
Jurisdiction&to&Distribute&the&Estate
It(is(the(probate(court(that(has(exclusive(jurisdiction(to(make(a(
just(and(legal(distribution(of(the(estate(
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
The(probate(court,(in(the(exercise(of(its(jurisdiction(to(make(
distribution,(has(power(to(determine(the(proportion(or(parts(to(
which(each(distributee(is(entitled((to(hold(that(a(separate(and(
independent(action(is(necessary(to(that(effect,(would(be(contrary(
to(the(general(tendency(of(the(jurisprudence(of(avoiding(
multiplicity(of(suits.(
(
Jurisdiction&to&Award&Attorneys&Fees&
The(application(to(fix(attorneys(fees(may(be(made(before(and(
passed(upon(by(the(probate(court(in(the(same(proceedings(where(
attorneys(services(were(rendered.(
(
General&Rule:(Probate(Court(cannot(determine(issue(of(ownership(
Exceptions:(
(a)(Ownership(may(be(PROVISIONALLY(determined(for(the(
purpose( of( including& property& in& inventory,( without(
prejudice(to(its(final(determination(in(a(separate(action;(or(
(b)(When(all(the(parties(are(heirs(and(they(submit(the(issue(
of(ownership(to(the(probate(court(provided(that(the(rights(
of(third(parties(are(not(prejudiced.(
(c)(Question(is(one(of(collation(or(advancement.(
An(order(to(include(properties(in(inventory(is(merely(provisional(
and(interlocutory.
Since( the( determination( of( the( probate( court( of( the( question( of(
title(was(merely(provisional,(is(not(binding(with(any(character(of(
authority,( having( been( made( only( for( purposes( of( inclusion( in(
inventory,( it, cannot, be, the, subject, of, execution,( as( against( its(
possessor( who( has( set( up( title( in( himself( or( adversely( to( the(
decedent(and(whose(right(to(possess(has(not(been(ventilated(and(
adjudicated(in(an(appropriate(action.
(
Where&the&Estate&is&of&Small&Value&
The( policy( of( the( law( is( to( terminate( proceedings( or( the(
settlement( of( estate( of( deceased( persons( with( the( least( loss( of(
time.(This(is(specially(true(with(small&estates(for(which(the(rules(
provide( precisely( summary( procedure( dispensing( with( the(
appointment( of( an( administrator( together( with( the( other(
involved( and( cumbersome( steps( ordinarily( required( in( the(
determination(of(assets(of(the(deceased(and(the(persons(entitled(
to(inherit(therefrom(and(the(payment(of(his(obligations(
It( is( not( proper( to( delay( the( summary( settlement( of( a( deceased(
person(just(because(an(heir(or(a(third(person(claims(that(certain(
properties( ( belong( to( him.( Such( claim( must( be( ventilated( in( an(
independent&action,(and(the(probate(court(should(proceed(to(the(
distribution(of(the(estate,(if(there(are(no(other(legal(obstacles(to(
it.(
For(the(protection(of(the(claimant,(the(appropriate(step(is(to(have(
the(proper(annotation(of(his(lis!pendens(entered.(
(
Jurisdiction&to&Determine&Heirs&
A(judicial(declaration(that(a(certain(person(is(an(heir((or(only(heir)(
is(exclusively(within(the(range(of(the(administration(proceedings(
and(cannot(properly(be(made(an(independent(action.(
A(separate(action(for(the(declaration(of(heirs(is(not(proper.(
&
Q When does the court acquire jurisdiction in the settlement of
the estate of a deceased person who died with a will?
A Jurisdiction of a probate court over the estate of a deceased person
attaches when its limited jurisdiction is invoked by the presentation to
5|
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
granted, and his estate settled in the M/RTC of any province in
which he resides at the time of his death;
2. if the decedent is a non- resident of the Philippines, his will shall
be proved or letter of administration granted, and his estate
settled in the M/RTC of any province and which he had estate.
Q Which court has jurisdiction to take cognizance of the
settlement of the estate of a non- resident?
A The settlement of the estate of Adoracion Campos was correctly filed
with the CFI of Manila where she had an estate since it was alleged and
proven that Adoracion at the time of her death was citizen and
permanent resident of Pennsylvania, USA and not a usual resident of
Cavite as alleged by petitioner (Cayetano vs. Leonidas)
POLLY CAYETANO vs. CFI JUDGE TOMAS T. LEONIDAS, 129 SCRA
522 (1984)
FACTS:
Adoracion C. Campos died, leaving her father, Hermogenes
Campos and her sisters, private respondent Nenita C. Paguia, Remedios C.
Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes
Campos was the only compulsory heir, he executed an Affidavit of
Adjudication whereby he adjudicated unto himself the ownership of the
entire estate of the deceased Adoracion Campos.
Eleven months after, Nenita C. Paguia filed a petition for the
reprobate of a will of the deceased, Adoracion Campos, which was
allegedly executed in the United States and for her appointment as
administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American
citizen at the time of her death and was a permanent resident of
Philadelphia, Pennsylvania, U.S.A. An opposition to the reprobate of the
will was filed by herein petitioner alleging among other things, that he has
every reason to believe that the will in question is a forgery; that the
intrinsic provisions of the will are null and void; and that even if pertinent
American laws on intrinsic provisions are invoked, the same could not
apply inasmuch as they would work injustice and injury to him.
Subsequently, he retracted his opposition and the questioned
will was admitted to and allowed probate in the Philippines and Nenita
Paquia was appointed administratrix. Sometime later, Hermogenes filed a
petition for relief on the ground that the withdrawal of his opposition was
secured through fraudulent means. Hermogenes also filed another motion
to vacate and/or set jurisdiction
ISSUE/S:
Whether respondent judge acted with grave abuse of discretion
when he allowed the withdrawal of the petitioner's opposition to the
reprobate of the will.
HELD:
NO. Under Section 1, Rule 73, if the decedent is an inhabitant of a
foreign country, his will shall be proved or letter of administration granted,
and his estate settled, in the Court of First Instance of any province in
which he had estate. Thus, the settlement of the estate of Adoracion
Campos was correctly filed with the Court of First Instance of Manila where
she had an estate since it was alleged and proven that Adoracion at the
time of her death was a citizen and permanent resident of Pennsylvania,
United States of America and not a "usual resident of Cavite" as alleged by
the petitioner. Moreover, petitioner is now estopped from questioning the
jurisdiction of the probate court in the petition for relief. It is a settled rule
that a party cannot invoke the jurisdiction of a court to secure affirmative
relief, against his opponent and after failing to obtain such relief, repudiate
or question that same jurisdiction.
Q Is the residence of the deceased in probate proceedings
jurisdictional?
A NO. the question of residence is determinative only of the venue and
does not affect the jurisdiction of the court. Thus, the institution of the
proceeding in the province wherein the decedent neither has residence
nor estate does not vitiate the action of the probate court. As venue is
waivable, the submission of all affected parties to said proceedings is aa
waiver of objection to this error.
6|
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
of his death. Z opposed on the grounds that venue has been
improperly laid as the decedent was a resident of Makati.
Resolve.
A What do you think?
! Atty. Gesmundo was mumbling about multiple appeals which we will
discuss much later in the course.
Q Can venue be waived?
A Venue is a matter of procedure, which MAY BE WAIVED expressly or
impliedly even in inferior courts. Where defendant, knowing from the
very beginning that venue was improperly laid, allows the trial to be
held against him, he CANNOT, after the rendition of an unfavourable
judgment validly appear in court and raise be deemed waived and can
no longer be pleaded.
Q What does the term resides refer to?
A The term "resides" connotes ex vi termini "actual residence" as
distinguished from "legal residence or domicile." This term "resides,"
like, the terms "residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or rule in
which it is employed. In the application of venue statutes and rules
Section 1, Rule 73 of the Revised Rules of Court is of such nature
residence rather than domicile is the significant factor. Even where the
statute uses the word "domicile" still it is construed as meaning
residence and not domicile in the technical sense. Some cases make a
distinction between the terms "residence" and "domicile" but as
generally used in statutes fixing venue, the terms are synonymous, and
convey the same meaning as the term "inhabitant." In other words,
"resides" should be viewed or understood in its popular sense, meaning,
the personal, actual or physical habitation of a person, actual residence
or place of abode. It signifies physical presence in a place and actual
stay thereat. No particular length of time of residence is required
though; however, the residence must be more than temporary. (Garcia
Fule vs. CA)
&
Residence((his(personal,(actual(or(physical(habitation,(his(actual(
residence(or(place(of(abode.((
VIRGINIA GARCIA FULE vs. CA, PRECIOSA B. GARCIA and
AGUSTINA B. GARCIA, 74 SCRA 189 (1976)
FACTS:
Virginia G. Fule filed with the CFI of Laguna a petition for letters
of administration alleging "that on April 26, 1973, Amado G. Garcia, a
property owner of Calamba, Laguna, died intestate in the City of Manila,
leaving real estate and personal properties in Calamba, Laguna, and in
other places, within the jurisdiction of the Honorable Court." At the same
time, she moved ex parte for her appointment as special administratrix
over the estate. Judge Malvar granted the motion.
A motion for reconsideration was filed by Preciosa B. Garcia, the
surviving spouse of the deceased, contending that
1) The decedent resided in QC for 3 months before his death as shown
by his death certificate.
2) The CFI of Calamba lacks jurisdiction over the petition.
CFI denied the motion. It ruled in favor of Garcia and annulled the
proceedings held before the CFI. Thus, Fule elevated the matter to the SC
on appeal by certiorari.
ISSUE/S:
What is meant by residence under Section 1, Rule 73 with respect to
the settlement of estates? Whether there was an improper venue.
HELD:
The term "resides" should be viewed or understood in its popular
sense, meaning, the personal, actual or physical habitation of a person,
actual residence or place of abode. It signifies physical presence in a place
and actual stay thereat. The term residence under Rule 73 is in reality,
merely a matter of venue, as the caption of the Rule indicates
Settlement of Estate of Deceased Persons, Venue and Processes. xxx the
place of residence of the deceased in settlement of estates, probate of a
will, and issuance of letters of administration does not constitute an
7|
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
assailing the jurisdiction of the said Quezon City court to entertain
petitioner's petition for probate and for appointment as executrix in view of
the alleged exclusive jurisdiction vested by her petition in the Cebu court.
Said respondent prayed that the special proceedings before the QC court
be dismissed for lack of jurisdiction and/or improper venue.
The QC court denied the motion to dismiss, giving as a principal
reason the "precedence of probate proceeding over an intestate
proceeding." The said court further found in said order that the residence
of the late senator at the time of his death was in Sta. Mesa Heights,
Quezon City. If a party has two residences, the one will be deemed or
presumed to his domicile which he himself selects or considers to be his
home or which appears to be the center of his affairs. Deceased stated in
his last will and testament that he is a resident of Sta. Mesa Heights,
Quezon City, and also of the City of Cebu. He made the former as his first
choice and the latter as his second choice of residence.
Subsequently, the QC court admitted the will to probate. Lourdes
filed a special civil action of certiorari and preliminary injunction with the
CA. the CA ruled in favour of Lourdes, holding that Section 1, Rule 73,
which fixes the venue in proceedings for the settlement of the estate of a
deceased person, covers both testate and intestate proceedings. The Cebu
case having been filed ahead, it is that court whose jurisdiction was first
invoked and which first attached.
ISSUE/S:
Which court has jurisdiction?
HELD:
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
the parties. More specially, said provision refers mainly to non-resident
decedents who have properties in several provinces in the Philippines, for
the settlement of their respective estates may undertaken before the court
of first instance of either one of said provinces, not only because said
courts then have concurrent jurisdiction and, hence, the one first taking
cognizance of the case shall exclude the other courts but, also, because
the statement to this effect in said section 1 of Rule 75 of the Rules of the
Court immediately follows the last part of the next preceding sentence,
which deals with non-resident decedents, whose estate may settled the
court of first instance of any province in which they have properties.
(Eusebio vs. Eusebio)
In the Matter of the Intestate of the deceased Andres Eusebio.
EUGENIO EUSEBIO, vs. AMANDA EUSEBIO, JUAN EUSEBIO,
DELFIN EUSEBIO, VICENTE EUSEBIO, and CARLOS EUSEBIO, 593
PHIL 593 (1956)
FACTS:
Eugenio Eusebio filed with the Court of First Instance of Rizal, a
petition for his appointment as administrator of the estate of his father,
Andres Eusebio, who died on November 28, 1952, residing, according to
said petition, in the City of Quezon. Amanda, Virginia, Juan, Delfin, Vicente
and Carlos, all surnamed Eusebio, objected to said petition, stating that
they are illegitimate children of the deceased and that the latter was
domiciled in San Fernando, Pampanga, and praying, therefore, that the
case be dismissed upon the ground that venue had been improperly filed.
The court overruled this objection and granted said petition. Hence, the
case is before us on appeal taken, from said order, by Amanda Eusebio,
and her aforementioned sister and brothers.
ISSUE/S:
Whether venue was properly laid in the CFI of Rizal.
HELD:
NO. In granting the court first taking cognizance of the case exclusive
jurisdiction over the same, said provision of the Rules of Court evidently
refers to cases triable before two or more courts with concurrent
jurisdiction. It could not possibly have intended to deprive a competent
court of the authority vested therein by law, merely because a similar case
had been previously filed before a court to which jurisdiction is denied by
law, for the same would then be defeated by the will of one of the parties.
More specially, said provision refers mainly to non-resident decedents who
have properties in several provinces in the Philippines, for the settlement
of their respective estates may undertaken before the court of first
instance of either one of said provinces, not only because said courts then
have concurrent jurisdiction and, hence, the one first taking cognizance
of the case shall exclude the other courts but, also, because the
statement to this effect in said section 1 of Rule 75 of the Rules of the
Court immediately follows the last part of the next preceding sentence,
which deals with non-resident decedents, whose estate may settled the
court of first instance of any province in which they have properties.
Q Once the court assumes jurisdiction, can it be deprived of its
jurisdiction?
A NO. The Judge or Court of First Instance where the deceased was
residing at the time of his death, has acquired exclusive jurisdiction to
settle the testate estate of the deceased and over the heirs and other
person interested in the estate of the deceased from the moment the
application for the probate of the decedent's will was filed with the said
court and the publication required by law were made; and the heirs of
the deceased could not divest the Court of First Instance of its already
acquired jurisdiction by the mere fact of dividing extrajudicially the
estate of the deceased among themselves.
! Jurisdiction already vested in a court may not be divested by the act of
private individual nor by the action of another court of the same rank.
LUZ MARQUEZ DE SANDOVAL vs. CFI Judge VICENTE SANTIAGO,
83 PHIL 784 (1949)
FACTS:
Sandoval instituted a special proceeding in the CFI of Quezon
Province for then probate of the will and codicil executed by the deceased
9|
Daniel Marquez in which she was designated as executrix. The will and
codicil were allowed and the petitioner was appointed executrix in
accordance with the will but before the petitioner qualified as executrix
the 3 heirs instituted in the will made an extrajudicial partition of all the
properties of he deceased and entered into the possession of their
respective share without the authority and approval of the court. One
year after the probate of the will and appointment of the petitioner as
executrix the respondent judge required the petitioner to quality as such
and file a bind of P5,000. In response thereto the petitioner informed the
respondent judge that it was not necessary for her to qualify because
the heirs had already made an extrajudicial partition in accordance with
the will as shown by the copy the copy of said partition which she
submitted to the court. In view of the answer of the petitioner the
respondent judge ordered the executrix to qualify as such within 48
hours and declared the extrajudicial agreement of partition entered into
by the heirs null and void, on the ground that the probate proceedings
having been commenced judicially it must also be terminated judicially. A
motion for reconsideration was filed by the petitioner and denied by the
court hence, the filing of the present petition for certiorari.
ISSUE/S:
Whether Judge Sandoval exceeded his jurisdiction when he did
not give to the extrajudicial partition the effect of terminating the testate
proceedings?
HELD:
NO. The respondent Judge or CFI of Quezon Province, wherein
the deceased was residing at the time of his death, has acquired
exclusive jurisdiction to settle the testate estate of the deceased Daniel
Marquez and over the heirs and other person interested in the estate of
the deceased from the moment the application for the probate of the
decedent's will was filed with the said court and the publication required
by law were made; and the heirs of the deceased Marquez could not
divest the Court of First Instance of its already acquired jurisdiction by
the mere fact of dividing extrajudicially the estate of the deceased
among themselves.
An extrajudicial partition of the estate of a deceased by the
heirs becomes a judicial partition after its approval by the court which
had previously acquired jurisdiction of the estate by the filing of an
application for the probate of the decedent's will; but as the testate
proceeding is terminated in such case without the necessary publication
of notices to creditors and other persons interested in the estate
required in a required in a regular judicial administration, the effect of
such judicial partition would be the same as if it had been effected
extrajudicially without the intervention of the court under the provisions
of section 1,of Rule 74, that is, subject to the claims against the
distributees by persons mentioned in sections 4 and 5, of the same rule.
The petition for certiorari is denied because the respondent
judge did not exceed his jurisdiction in not giving the deed of
extrajudicial settlement or partition of the estate of the deceased the
effect of terminating the testate proceeding over which the court has
acquired exclusive jurisdiction since said partition was not submitted to
said court for approval.
Q Is judgment or orders in special proceedings subject to
collateral attack?
A NO. The validity of a judgment or order of a court entered in a
proceeding CANNOT be assailed collaterally unless the ground is for
lack of jurisdiction of the court entering such judgment or order of
fraud by the party sought to be charged with its procurement. The
remedy of the aggrieved party is to appeal from such order or
judgment, or if final, to apply for relief under Rule 38, which is also
applicable to special proceedings.
Q Can jurisdiction assumed by the court be contested or
questioned?
A The jurisdiction assumed by a Court of First Instance, for the
settlement of an estate, so far as it depends on the place of residence
of a person, or of the location of his estate, shall not be contested in
a suit or proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the record.
(Vda. De Manzanero vs. CFI of Batangas)
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
REMEDIOS BONGON VIUDA DE MANZANERO vs. CFI OF
BATANGAS, FORTUNATO, BARBARA, MARCELINA and FERNANDA,
surnamed MANZANERO, and FILIPINAS LIFE ASSURANCE CO., 61
PHIL 850 (1935)
FACTS:
This is an original petition for certiorari filed by Remedios Bongon
Viuda de Manzanero against the CFI of Batangas and others, praying for
the annulment, after due process, of the proceedings of said court in the
case for the summary settlement of the estate left by deceased Esteban M.
Manzanero, for having acted without jurisdiction and committed therein
irregularities nullifying said proceedings.
The following pertinent facts are necessary for the resolution of the
question raised in this petition, to wit:
1) Esteban M. Manzanero, then assistant district engineer of the Province
of Albay, died in the provincial hospital of said province. His brother,
Fortunato Manzanero, filed in the CFI of Batangas a sworn application
alleging
2) that his deceased brother, Esteban M. Manzanero, in life, had his legal
residence in Santo Tomas, Batangas;
3) that he had left no property except a life insurance policy of P5,000
with the Filipinas Life Assurance Co., of Manila;
4) that his said deceased brother owed him the sum of P500;
5) that he was survived by a widow, the herein petitioner, Remedios
Bongon, residing in Tabaco, Albay; and
6) praying for a summary settlement of his estate.
When the application was called for hearing, only Fortunato
Manzanero appeared through his attorney, Epitacio Panganiban. As the
vacation Judge, Eduardo Gutierrez David, was holding judicial session in
Lucena, Tayabas, said applicant and his attorney requested the clerk of the
CFI of Batangas to send the record to Lucena which he did.
In an order, Judge David required the insurance company to pay the
heirs Manzanero the proceeds of the life insurance policy amounting to
4,276,03. having been informed that the proceeds of the policy have
been distributed among the heirs of her deceased husband, widow filed a
motion praying for the return and delivery of the money. The motion was
not heard as the presiding judge of the CFI of Batangas refrained from
trying the case.
ISSUE/S:
Whether the question of jurisdiction of a court to take cognizance of a
summary settlement of the estate of the deceased, by reason of residence,
may be raised by means of the extraordinary remedy of certiorari.
HELD:
NO. The jurisdiction assumed by a Court of First Instance, for the
settlement of an estate, so far as it depends on the place of residence of a
person, or of the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original case, or
when the want of jurisdiction appears on the record. When it does not
appear on the records of the case that the said court lacks jurisdiction to
take cognizance of the application for the summary settlement by reasons
of the illegal residence of the deceased, certiorari does not lie. An appeal
being specially provided in such case.
Q In the exercise of probate jurisdiction, what matters may the
court consider?
A Any incident which might arise in connection with special proceedings,
such as impugning the validity of a will, or objecting to the
authentication thereof, and every demand or claim which any heir,
legatee, or party in interest in a testate or intestate succession may
make, must be acted upon and decided within the same special
proceedings not in a separate action and the same judge having
jurisdiction in the administration of the estate shall take cognizance of
the question raised, inasmuch as when the day comes he will be called
upon to make distribution and adjudication of the property to the
interested parties. (Benedicto vs. Javellana)
EDUARDA BENEDICTO, administratrix of the estate of Maximino
Jalandoni vs.JULIO JAVELLANA, 10 PHIL 197 (1908)
10 |
FACTS:
Maximino Jalandoni passed away and left a will, which became the
subject of probate proceedings. Maximo, the brother of the deceased,
filed a petition in writing with the probate court demanding the delivery
of 985. this was the sum paid to the administrator, Javellana, after the
latter sold the property, which Maximo was supposed to inherit by
legacy. Maximo died and Eduardo Benedicto, the administrator of his
estate, represented him.
Javellana filed an answer to the petition and alleged that it was not
proper to ask by means of a motion for relief of that Maximo Jalandoni
claimed, but that a separate complaint should have been filed naming all
the parties concerned in the estate.
ISSUE/S:
Whether a separate action should be filed instead of a motion or
petition in writing.
HELD:
NO need for a separate action. Any incident which might arise in
connection with special proceedings, such as impugning the validity of a
will, or objecting to the authentication thereof, and every demand or
claim which any heir, legatee, or party in interest in a testate or intestate
succession may make, must be acted upon and decided within the same
special proceedings not in a separate action and the same judge having
jurisdiction in the administration of the estate shall take cognizance of
the question raised, inasmuch as when the day comes he will be called
upon to make distribution and adjudication of the property to the
interested parties.
Q Give examples of matters within the jurisdiction of probate
courts
A Matters within the jurisdiction of probate courts:
1. questions as to who are the heirs of the decedent
2. recognition of a natural child
3. validity of disinheritance effected by testator
4. status of a woman of hereditary rights
5. validity of a waiver of hereditary rights
6. maters incidental or collateral to the settlement and
distribution of the estate, such as the determination of the
status of each heir and whether the property in the inventory
is conjugal or exclusive property of the deceased spouse.
Q Can a probate court in an intestate proceeding entertain
petition for the probate of a will?
A The probate court had no jurisdiction to entertain the petition for the
probate of the alleged will of Adriana Maloto in an intestate
proceeding. It is not proper to make a finding in an intestate estate
proceeding that the discovered will has been revoked. The more
appropriate remedy of the petitioners in the premises stated in the
petition is for petitioners to initiate a separate proceeding for the
probate of the alleged with in question. (Casiano vs. Maloto)
TESTATE ESTATE OF THE LATE ADRIANO MALOTO: ALDINA
MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION
MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, and ASILO
DE MOLO vs. FELINO MALOTO and FELINO MALOTO,
70 SCRA 232 (1977)
FACTS:
Adriana Maloto died on October 20, 1963 in Iloilo City, her place of
residence. Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto, and
Felino Maloto, niece and nephews, respectively, of Adriana Maloto, in the
belief that decedent died intestate, commenced on November 4, 1963 in
the CFI of Iloilo an intestate proceeding. In the course of said intestate
proceeding, said nieces and nephews executed an extrajudicial Partition
of the estate of Adriana Maloto whereby they adjudicated said estate
unto themselves in the proportion of one-fourth (1/4) share for each.
The CFI of Iloilo approved the extrajudicial partition.
Subsequently, a document purporting to be the last with and
testament of Adriana Maloto was delivered to the Clerk of Court of the
CFI of Iloilo. It appears that Aldina Maloto Casiano Consent Maloto,
Panfilo Maloto, and Felino Maloto are named as heirs but Maloto Casiano
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
and Constancio Maloto allegedly have shares in said with which are bigger,
different and more valuable than what they obtained in the extrajudicial
partition. The said will also allegedly made dispositions to certain devisees
and/or legatees, among whom being the Asilo de Molo, the Roman
Catholic Church of Molo, and Purificacion Miraflor.
Aldina Maloto Casiano and Constancio Maloto filed a motion (1) for
reconsideration; (2) annulment of the proceedings; and (3) for the
allowance of the last will and testament of Adriana Maloto. The Asilo de
Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor also
filed petitions for the allowance of the will of Adriana Maloto. The presiding
judge denied the motions.
The petitioners filed a petition for certiorari and mandamus with the
Supreme Court. This Court dismissed the petition in a resolution on the
ground that the more appropriate remedy of petitioners in the premises
stated in the petition is for petitioners to initiate a separate proceeding for
the probate of the alleged will in question. Thereupon, petitioners
commenced a separate special proceeding for the probate of the alleged
last will and testament of Adriana. Panfilo and Felino filed an opposition
with a motion to dismiss alleging among others, that the will sought to be
probated had been destroyed and revoked by the testatrix.
The probate court dismissed the petition for probate of the will on the
basis of the finding in the intestate proceeding that the alleged will sought
to be probated had been destroyed and revoked by the testatrix. Hence,
the petition for probate is now barred by the order in the intestate
proceeding.
ISSUE/S:
Whether the petition for probate is barred by the finding of the
probate court in the intestate proceedings that the alleged will now being
sought to be probated had been destroyed and revoked by the testatrix.
HELD:
NO. The probate court had no jurisdiction to entertain the petition for
the probate of the alleged will of Adriana Maloto in an intestate
proceeding. It is not proper to make a finding in an intestate estate
proceeding that the discovered will has been revoked. The more
appropriate remedy of the petitioners in the premises stated in the petition
is for petitioners to initiate a separate proceeding for the probate of the
alleged with in question.
HELD:
NO. It is a well-settled rule that a probate court or one in charge of
proceedings whether testate or intestate cannot adjudicate or determine
title to properties claimed to be a part of the estate and which are
equally (claimed to belong to outside parties. All that the said court could
do as regards said properties is to determine whether they should or
should not be included in the inventory or list of properties to be
administered by the administrator. If there is no dispute, well and good;
but if there is, then the parties, the administrator, and the opposing
parties have to resort to an ordinary action for a final determination of
the conflicting claims of title because the probate court cannot do so.
The property in question being in the possession of third parties
and more important, covered by a transfer certificate of title issued in
the name of such third parties, the respondent court should have denied
the motion of the respondent administrator and excluded the property in
question from the inventory of the property of the estate. It had no
authority to deprive such third persons of their possession and
ownership of the property. Respondent court was clearly without
jurisdiction to issue the order of June 27, 1979. Thus, it was unnecessary
for the petitioners to first apply for relief with the intestate court.
FACTS:
In 1970, pending the registration of several parcels of land, Mariano
Cuizon distributed his property between his two children, Rufina and Irene.
Part of the property given to Irene consisted largely of salt beds which
eventually became the subject of this controversy.
In 1971, Irene Cuizon executed a Deed of Sale with Reservation of
Usufruct involving the said salt beds in favor of Francisco, Rosita and
Purificacion, all surnamed Cuizon. At that time, Francisco and Rosita were
minors and assisted by their mother, Rufina, only sister of Irene. However,
the sale was not registered because the petitioners felt it was unnecessary
due to the lifetime usufructuary rights of Irene. A decree of registration
and the corresponding OCT was issued only in 1976 in the name of
11 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
cognizance of by the court in the course of intestate proceeding,
provided interests of third persons are not prejudiced (Bernardo vs. CA)
DEOGRACIAS BERNARDO, executor and the instituted heirs,
namely: ARMANDO CAPILI and ARTURO BERNARDO, ET AL., vs.
CA and THE HEIRS OF THE LATE HERMOGENA REYES, namely:
FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL.,
7 SCRA 367 (1963)
FACTS:
Eusebio Capili died and a testate proceeding for the settlement of his
estate was instituted in the CFI of Bulacan by Hermogena Reyes, his
widow. His will was admitted to probate, disposing of his properties in
favor of his widow; his cousins Armando, Ursula, and Buenaventura, all
surnamed Capili; and Arturo, Deogracias and Eduardo, all surnamed
Bernardo. Hermogena Reyes subsequently died. Upon petition of
Deogracias Bernardo, executor of the estate of the deceased Eusebio
Capili, she was substituted by her collateral relatives and intestate heirs,
namely, Marcos, Vicente, Francisco and Dominga, all surnamed Reyes; and
Jose, Constancia, Raymunda and Elena, all surnamed Isidoro.
The executor filed a project of partition in the testate proceeding in
accordance with the terms of the will, adjudicating the estate of Eusebio
Capili among the testamentary heirs with the exception of Hermogena
Reyes, whose share was alloted to her collateral relatives. These collateral
relatives filed an opposition to the executor's project of partition and
submitted a counter-project of partition of their own, claiming 1/2 of the
properties mentioned in the will of the deceased Eusebio Capili on the
theory that they belonged not to the latter alone but to the conjugal
partnership of the spouses.
Bernardo and the instituted heirs of Eusebio contend that: (1) that
the properties disposed of in the will of the deceased Eusebio Capili
belonged to him exclusively and not to the conjugal partnership, because
Hermogena Reyes had donated to him her half share of such partnership;
(2) that the collateral heirs of Hermogena Reyes had no lawful standing or
grounds to question the validity of the donation; and (3) that even
assuming that they could question the validity of the donation, the same
must be litigated not in the testate proceeding but in a separate civil
action.
The oppositors and heirs of Hermogena Reyes, on their part, argued
that the deed of donation itself was determinative of the original conjugal
character to the properties, aside from the legal presumption laid down in
Article 160 of the Civil Code, and that since the donation was null and void
the deceased Eusebio Capili did not become owner of the share of his wife
and therefore could not validly dispose of it in his will.
The probate court declared the donation as void. Said court also
disapproved both projects of partition and ordered Bernardo to file another
one. On appeal, petitioners contend that the probate court had no
jurisdiction to take cognizance of the claim of the legal heirs of Hermogena
involving title to the property mentioned in the will.
ISSUE/S:
Whether the probate court, having limited and special jurisdiction,
had generally the power to adjudicate the questions as to whether the
properties involved belong to the conjugal partnership of the spouses or
the husband exclusively.
HELD:
While as a general rule, question as to title to property cannot be
passed upon on testate or intestate proceedings," except where one of the
parties prays merely for the inclusion or exclusion from the
inventory of the property, in which case the probate court may pass
provisionally upon the question without prejudice to its final determination
in a separate action. However, when the parties interested are all heirs of
the deceased, it is optional to them to submit to the probate court a
question as to title to property, and when so submitted, said probate court
may definitely pass judgment thereon; and that with the consent of the
parties, matters affecting property under judicial administration may be
taken cognizance of by the court in the course of intestate proceeding,
provided interests of third persons are not prejudiced. The jurisdiction to
try controversies between heirs of the deceased regarding the ownership
of properties alleged to belong to his estate is vested in probate courts.
This is so because the purpose of the administration proceeding is the
12 |
liquidation of the estate and distribution of the residue among the heirs
and legatees.
The matter in controversy is the question of ownership of certain of
the properties involved whether they belong to the conjugal
partnership or to the husband exclusively. This is a matter properly
within the jurisdiction of the probate court which necessarily has to
liquidate the conjugal partnership in order to determine the estate of the
decedent which is to be distributed among his heirs who are all parties
to the proceedings, including, of course, the widow, now represented
because of her death, by her heirs who have been substituted upon
petition of the executor himself and who have appeared voluntarily.
There are no third parties whose rights may be affected. It is true that
the heirs of the deceased widow are not heirs of the testator-husband,
but the widow is, in addition to her own right to the conjugal property.
And it is this right that is being sought to be enforced by her substitutes.
Therefore, the claim that is being asserted is one belonging to an heir to
the testator and, consequently, it complies with the requirement of the
exception that the parties interested (the petitioners and the widow,
represented by dents) are all heirs claiming title under the testator.
(
Exclusionary&Rule&
General&Rule(:(The(court(first(taking(cognizance(of(the(settlement(
of( the( estate( of( the( decedent( shall( exercise( jurisdiction( to( the(
exclusion(of(all(other(courts.(
(
The( probate( courts( acquires( jurisdiction( from( the(
moment(the(petition(for(the(settlement(of(estate(is(filed(with(said(
court.(It(cannot(be(divested(of(such(jurisdiction(by(the(subsequent(
acts(of(the(parties(as(by(entering(into(extrajudicial(partition(of(the(
estate.(
(
Exception,(Estoppel(by(Laches(
(
Remedy&if&Venue&is&Improperly&Laid(
General&Rule(:(ORDINARY(APPEAL(not(certiorari(or(mandamus(
(
Exception,(If(want(of(jurisdiction(appears(on(the(record(of(the(case(
(Rules(73(
Sec. 2. Where estate settled upon dissolution of marriage. When the marriage is dissolved by the death of the husband or wife, the
community property shall be inventoried, administered, and liquidated,
and the debts thereof paid, in the testate or intestate proceedings of the
deceased spouse. If both spouses have died, the conjugal partnership
shall be liquidated in the testate or intestate proceedings of either.
Related&Family&Code&Provisions:(
(
(Art.& 103.( Upon( the( termination( of( the( marriage( by( death,( the(
community(property(shall(be(liquidated(in(the(same(proceeding(for(
the(settlement(of(the(estate(of(the(deceased.(
If( no( judicial( settlement( proceeding( is( instituted,( the(
surviving( spouse( shall( liquidate( the( community( property( either(
judicially(or(extradjudicially(within(six(months(from(the(death(of(the(
deceased( spouse.( If( upon( the( lapse( of( the( six( months( period,( no(
liquidation(is(made,(any(disposition(or(encumbrance(involving(the(
community(property(of(the(terminated(marriage(shall(be(void.(
Should( the( surviving( spouse( contract( a( subsequent(
marriage( without( compliance( with( the( foregoing( requirements,( a(
mandatory(regime(of(complete(separation(of(property(shall(govern(
the(property(relations(of(the(subsequent(marriage.((n)(
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Art.&104.(Whenever(the(liquidation(of(the(community(properties(of(
two( or( more( marriages( contracted( by( the( same( person( before( the(
effectivity(of(this(Code(is(carried(out(simultaneously,(the(respective(
capital,( fruits( and( income( of( each( community( shall( be( determined(
upon( such( proof( as( may( be( considered( according( to( the( rules( of(
evidence.( In( case( of( doubt( as( to( which( community( the( existing(
properties(belong,(the(same(shall(be(divided(between(the(different(
communities( in( proportion( to( the( capital( and( duration( of(
each.((189a)((
Art.& 130.( Upon( the( termination( of( the( marriage( by( death,( the(
conjugal( partnership( property( shall( be( liquidated( in( the( same(
proceeding(for(the(settlement(of(the(estate(of(the(deceased.(
If( no( judicial( settlement( proceeding( is( instituted,( the(
surviving( spouse( shall( liquidate( the( conjugal( partnership( property(
either(judicially(or(extradjudicially(within(six(months(from(the(death(
of(the(deceased(spouse.(If(upon(the(lapse(of(the(sixdmonth(period(no(
liquidation( is( made,( any( disposition( or( encumbrance( involving( the(
conjugal( partnership( property( of( the( terminated( marriage( shall( be(
void.(
Should( the( surviving( spouse( contract( a( subsequent(
marriage( without( compliance( with( the( foregoing( requirements,( a(
mandatory( regime( of( complete( separation( of( property( shall( govern(
the(property(relations(of(the(subsequent(marriage.((n)(
Art.& 131.( Whenever( the( liquidation( of( the( conjugal( partnership(
properties(of(two(or(more(marriages(contracted(by(the(same(person(
before(the(effectivity(of(this(Code(is(carried(out(simultaneously,(the(
respective( capital,( fruits( and( income( of( each( partnership( shall( be(
determined(upon(such(proof(as(may(be(considered(according(to(the(
rules( of( evidence.( In( case( of( doubt( as( to( which( partnership( the(
existing( properties( belong,( the( same( shall( be( divided( between( the(
different( partnerships( in( proportion( to( the( capital( and( duration( of(
each.((189a)(
Art.& 132.( The(Rules( of( Court(on( the( administration( of( estates( of(
deceased( persons( shall( be( observed( in( the( appraisal( and( sale( of(
property( of( the( conjugal( partnership,( and( other( matters( which( are(
not(expressly(determined(in(this(Chapter.((187a)(
Art.&133.&From(the(common(mass(of(property(support(shall(be(given(
to(the(surviving(spouse(and(to(the(children(during(the(liquidation(of(
the( inventoried( property( and( until( what( belongs( to( them( is(
delivered;(but(from(this(shall(be(deducted(that(amount(received(for(
support(which(exceeds(the(fruits(or(rents(pertaining(to(them.((188a)((
(In(the(settlement(proceedings(of(the(estate(of(the(deceased(
spouse,(the(entire(conjugal(partnership(property(of(the(marriage(
and(not(just(the(onedhalf(portion(belonging(to(the(deceased,(is(
under(administration.(
(
13 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
died wherein he sets out all his properties and distributes them among his
widow Teopista Dolar and his heirs by both marriages. He also left a
legacy of P8,000 to be spent for the altar of the church under construction
in the Municipality of Dumangas, ordering that this be taken from the fruits
of all the properties before they are partitioned among his heirs
2 projects of partition were submitted. The first was disapproved
because of the objection of several of the heirs. The second was also
disapproved because of the objection of the representative of the church
of Dumangas. The court then ordered the administratrix, Teopista Dolar, to
take possession of the properties and deliver the legacy to the church.
From this resolution Dolar and the heirs of the second marriage appealed.
ISSUE/S:
Whether all the heirs must agree before a partition is to be effected.
HELD:
YES. Unless the widow Teopista Dolar, the heirs of the deceased by his
two marriages, the representative of the legacy for P8,000, and the
creditors of the estate, otherwise come to an agreement, the partition
should be made with the intervention of all the interested parties according
to law. The procedure for the partition of the decedents estate is as
follows:
1) All the debts and administration expenses shall first be paid.
2) The conjugal properties of the first and second marriage shall be
liquidated to determine the corresponding share of each wife in the
conjugal property.
3) The properties of the deceased both from the first and second
marriage shall be partitioned among the heirs.
4) The legacy to the church must be taken out of the free portion,
without impairment of the legitimes of the forced heirs
5) The legal usufruct of the widow must be taken from the third available
for betterment
6) Legitimes shall be distributed among the forced heirs
7) The remainder of the free portion is to be divided among the forced
heirs in equal parts.
Q Upon the death of one of the spouses, where should the
liquidation of the conjugal partnership be made? Who is
charged with such liquidation?
A When a conjugal partnership is dissolved by the death of the husband
(or wife) it must be liquidated in the proceedings charged with such
liquidation under the direction of the court and may maintain an action
against a third person to recover possession of property belonging to
the dissolved conjugal partnership. (Alfonso vs. Natividad)
HERMENEGILDO ALFONSO vs. PEDRO NATIVIDAD, ET AL.,
6 PHIL 240 (1906)
FACTS:
Angeles and Tomasa got married and during their marriage, Tomasa
acquired legal title to the tract here in question. Angeles and Tomasa
executed a document wherein they pledged this property to Natividad in
consideration of a loan. Angeles died after the execution of the document.
Tomasa followed thereafter. Natividad then took possession of the land,
allegedly to wait for one of the heirs to pay the debt due to him.
Alfonso, as administrator of the estate of Angeles, claims that the
property belonged to the conjugal partnership during the life of the
spouses and that this partnership having been dissolved by the death of
Angeles, its affairs should by law be settled by representatives of the
deceased and that he is such representative who seeks to recover the
land.
Natividad claims that the property was not the property of the
conjugal partnership, but was the separate property of Tomasa bought by
her separate money. Hence, Alfonso has no right to recover said property.
ISSUE/S:
Whether the land in question was conjugal.
HELD:
CONJUGAL. There is no evidence to show what source the money came
from which was used to buy the land. Under our laws, the conjugal
partnership ceases upon the dissolution of the marriage. Hence, upon the
14 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
made. After deductions (dowries, debts, etc.) then the remainder is to be
divided equally between the spouses.
The conjugal property which is to be eventually divided is determined
not with reference to the income or profits which may have been received
during the partnership but rather by the amount of the actual property
possessed by them at such dissolution after making the deduction and
payments aforesaid.
In liquidating a conjugal partnership, an inventory of the actual
property possessed by the spouses at the time of the dissolution
must be made. It is error to determine the amount to be divided by
adding up the profits which had been made in each year of its continuance
and saying that the result is that amount.
Q Is inventory and liquidation always necessary?
A NO. When the interested parties have already reached a compromise,
whereby for valuable consideration, the widow renounced in favor of
the children all her interest and rights in the estate of the deceased as
well as her participation in the conjugal partnership, it is no longer
necessary to prepare an inventory of the conjugal properties and make
a liquidation. (VDA. DE VILLACORTE vs. MARIANO)
CONCEPCION VDA. DE VILLACORTE, ET AL. vs. MACARIA E.
MARIANO, 89 PHIL 342 (1951)
FACTS:
During his lifetime Leon Calimon married thrice. His first marriage
with Adriana Carpio gave him 4 daughters named Canuta, Tranquilina,
Maria and Enriqueta. A widower in 1898, the next year he married
Venancia Inducil, who lived only 10 months thereafter, leaving him no
child. She had, however, a son by previous marriage: Tiburcio Villacorte. In
July 1902 Leon Calimon took a third wife, Macaria E. Mariano. She bore
him no offspring; but survived him when he passed away.
The widow and daughter of Tiburcio Villacorte filed a complaint
seeking to recover 38 parcels of land allegedly in the possession of Canuta
Calimon and her three sisters and of Macaria E. Mariano. Plaintiffs averred
that the properties belonged to their predecessor in interest, Venancia
Inducil. Defendants, in 2 separate answers, claimed that the lots were
owned exclusively by Leon Calimon.
10 months afterwards Macaria E. Mariano amended her answer to
assert that all the realties had been acquired during her coverture with
Leon Calimon, and also to interpose a crossclaim against her codefendants, the heirs of Leon Calimon by the first marriage, demanding
the recognition of her rights as surviving spouse, to such conjugal
partnership property. In this connection she affirmed that thru deceit and
intimidation she had signed three documents assigning to her codefendants (cross-defendants) her lawful participation in the conjugal
assets in exchange for certain properties alloted to her. The crossdefendants countered with the assertion that some of the properties
belonged to them, and all the rest to their father Leon Calimon, and that
Macaria E. Mariano had voluntarily and validly signed the documents
mentioned in her cross-claim.
Deciding the controversy, court reached the conclusion that the three
documents were valid and binding, and that as a consequence the Calimon
sisters were entitled to continue possessing the lands and properties
assigned to them by virtue of said Exhibit. The cross-defendants were
absolved from the cross-complaint.
Macaria now claims that it was error for the lower court to adjudge
the controversy upon the strength of the above mentioned exhibits,
without previously requiring an inventory and liquidation of the conjugal
properties of the deceased Leon Calimon and the cross-plaintiff.
ISSUE/S:
Whether the lower court should have required an inventory and
liquidation of the conjugal properties before adjudging the controversy.
provision of article 1418 of the Civil Code, inventory shall not be required
if, after the partnership has been dissolved, one of the spouses, or his or
her successors shall have renounced its effects.
Q Upon dissolution of the conjugal partnership by reason of the
death of one spouse, from whom may conjugal debts be
recovered?
A The husband, having ceased to be the administrator of the conjugal
property had with his wife, upon the latters demise, no complaint can
be brought against him in an ordinary action for the recovery of the
debt chargeable against the conjugal property and the action of this
purpose should have been instituted in the testamentary proceeding
of the deceased wife in the manner provided by law. (Calma vs.
Toledo)
MARIA CALMA vs. ESPERANZA TAEDO and BARTOLOME
QUIZON, Deputy Sheriff of Tarlac, 66 PHIL 594 (1936)
FACTS:
The spouses Eulalio Calma and Fausta Macasaquit were the owners of
the property described in the complaint, being their conjugal property.
They were also indebted to Esperanza Taedo, chargeable against the
conjugal property, in the sums of P948.34 and P247, with interest
thereon at 10 per cent per annum. On October 10, 1933, Fausta
Macasaquit died leaving a will wherein she appointed her daughter,
Maria Calma, as administratrix of her properties. Upon the
commencement of the corresponding probate proceedings in the Court
of First Instance of Tarlac, the said daughter, Maria Calma, was
appointed judicial administratrix of the properties of the deceased.
While these probate proceedings of the deceased Fausta
Macasaquit were pending, Esperanza Tanedo filed a complaint against
Eulalio Calma for the recovery of the sums of P948.34 and P247. The CFI
of Tarlac rendered judgment for the payment of this sum. In the
execution of this judgment, despite the third party claim filed by Fausta
Macasaquit, the property described in the complaint was sold by the
sheriff.
Maria Calma, as administratrix of the estate of Fausta Macasaquit,
now brings this action and asks that the sale made by the sheriff of the
property described in the complaint be annulled and that the estate of
Fausta Macasaquit be declared the sole and absolute owner thereof.
ISSUE/S:
Whether the complaint for recovery of the sums was correctly filed
against Eulalio Calma
HELD:
NO to both to interpreting the applicable law, Act no. 3176. In the
case at bar, it can be gathered that the testamentary proceeding have
been instituted the liquidation and partition of the conjugal property by
reason of her marriage to should made in the proceeding to the
exclusion of any other proceeding for the same purpose it follows
therefore that Fausta Calma having ceased to be the legal administrator
of the conjugal property had with his wifre, Fausta, upon the latters
death, no complaint can be brought against him in an ordinary action for
the recovery of the debt chargeable against the conjugal property. The
action for this purpose should have been instituted in the testamentary
proceedings of the deceased wife in the manner provided by law, filing
the claim with the committee on claims and approval.
PAZ Y. OCAMPO, JOSEFA Y. OCAMPO, ISIDRO Y. OCAMPO, GIL
Y. OCAMPO, MAURO Y. OCAMPO, and VICENTE Y. OCAMPO vs.
CONRADO POTENCIANO, VICTOR POTENCIANO and LOURDES
POTENCIANO, 89 PHIL 160 (1951)
FACTS:
HELD:
NO. It was unnecessary to prepare the inventory and make the
liquidation because the parties interested, i.e., the heirs of Leon Calimon
and his widow had already reached a compromise by means of Exhibit 1Mariano. And supposing that all those lots were community property, still
the said exhibit governs the rights of the parties. A similar documents of
renunciation was held valid and binding in Antonio vs. Aloc. And under the
15 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Several extensions were granted. The last extension granted was
for year from February 3, 1937, and the period having elapsed without the
repurchase having been made, Potenciano filed with the register of deeds
of Laguna an affidavit for the consolidation of title, on the strength which
the register of deeds issued TCT in the name of Potenciano and his wife.
This, however, did not close the avenue for settlement. With Edilberto
Ocampo and Rufina Reyes already dead, Potenciano gave Paz Yatco an
option to repurchase the property for P2,500 within 5 years, and a lease
thereon for the same period of time at annual rental of P300 which, as
may again be noted, is equivalent to 12% of the purchase price.
On February 7, 1944, Paz Yatco sought to exercise the option by
tendering to Potenciano at his clinic in Manila the sum of P4,000 an
amount sufficient to cover both principal and interest, and upon the tender
being rejected, deposited the money in court and brought an action in her
own name and as judicial administratrix of the estate of her deceased
husband to compel Potenciano to accept it and to have the title to the
property reinstated in her name and that of her husband.
Intervening in the case, Potenciano's children, Victor and
Lourdes, filed a cross-complaint, alleging that the option to purchase
granted by their father to plaintiff on February 28, 1939, was null and void
as to the share of their deceased mother Rufina Reyes in the property in
litigation, which share passed to them by right of inheritance, the
intervenors, were exercising the right of redemption accorded by law to
co-owners of property held in common
The Court of First Instance, after trial, upheld these allegations
and gave judgment in favor of the children of Edilberto Ocampo and Paz
Yatco, who had substituted the latter after her death.
ISSUE/S:
Whether CA erred in ruling that the husband had authority to
enter into such agreement as administrator of the conjugal estate.
HELD:
The Court of Appeals erred in supposing that the surviving spouse
had such authority as de facto administrator of the conjugal estate. Section
2, Rule 75, of the Rules of Court provides that when the marriage is
dissolved by the death of either husband or wife, the partnership affairs
must be liquidated in the testate or intestate proceedings of the deceased
spouse.
Also, there is ground to believe that the option agreement in question
was nothing more than mere extension of time for the payment of the
mortgagee debt. It follows from the foregoing that at the time Paz Yatco
made the tender of payment and consigned the necessary amount in
court, the said contract of loan with security was still in effect, and as the
tender was made in legal currency, the tender and consignation must be
held to produce their legal effect, which is that of relieving the debtor from
liability. Hence, since ownership in the property never passed to their
parents, these appellants (intervenors) acquired nothing.
Q What is the basis in the appraisal of real property?
A In appraising the real property of the conjugal partnership, it is NOT the
purchase price, but the market, or default thereof, the assessed
value at the time of the liquidation that must be taken into
account. (Prado vs. Natividad)
JOSE M. PRADO vs. CASIMIRO NATIVIDAD, 47 PHIL 776 (1925)
Casimiro Natividad and Maria Prado contracted marriage with Casimiro
bringing to the marriage some real properties which he had received from
his mother as his future share in her inheritance. Maria Prado did not bring
anything. During the marriage the spouses acquired on different dates real
and personal properties. On April 27, 1904, Maria Prado died from
pulmonary tuberculosis in Manila, where she had been taken for
treatment.
Jose Maria Prado, in his capacity as administrator of the estate of
Maria Prado, filed a complaint in the CFI of Camarines Sur against
Casimiro, wherein he alleged that the latter had refused to make an
liquidation of the estate of the conjugal partnership and prayed the court
for judgment, decreeing the liquidation of said partnership, adjudicating to
the plaintiff administrator one-half of the conjugal property with its
products.
16 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
HELD:
NO. The admission in evidence without objection, of an inventory
purporting to set forth the amount and value of certain property does not
bind the trial court to accept as true contents of such inventory where
other evidence as to its amount and value has been submitted. In such
case, the document is admitted for what is worth as evidence, and is not
to be held as conclusive of the truth of its contents if there is other
evidence in the records disclosing its inaccuracy.
Q When can a claim for segregation of a spouses separate
property be made?
A When the wifes own property or that brought by her to the marriage,
of the nature of paraphernalia, has been included among the property
of the conjugal partnership, a claim or demand for its segregation on
the part of its legitimate owner can only be properly made after the
making of the inventory of the property which forms the assets of the
partnership dissolved by the death of the husband if it be not
conclusively proven that certain property is paraphernalia, or that it
belongs exclusively to a widow, the same must be deemed to be
conjugal partnership property and liable for the debts and obligations of
the partnership, saving always the right of the said widow to have her
own personal property of every kind excluded. (Fulgencio vs. Gachalian)
JOSEFA FULGENCIO & FERNANDO FULGENCIO vs. BENITA
GATCHALIAN, ET AL., 21 PHIL 252 (1912)
FACTS:
Josefa Fulgencio, the administratrix of the intestate estate of Dionisio
Fulgencio, filed with the CFI of Pangasinan a written complaint against
Benita Gatchalian, Petrona Clavo, Emeteria Cristobal, Leoncia Belen, and
Gabriela Lopez alleging that
1) by virtue of letters of administration, issued in her behalf, she entered
upon the discharge of the duties of her office with full powers to take
possession of and to administer all the property of the estate of
Dionisio Fulgencio;
2) that Benita Gatchalian was appointed administratrix, conjointly with
the plaintiff, of the estate of the said deceased, the required letters of
administration having been issued to her, although Gatchalian
tendered her resignation as administratrix, which was accepted by the
court, wherefore the plaintiff was the sole party upon whom it was
incumbent by law to fulfill the said office;
3) that the defendants Petrona, Emeteria, Leoncia and Gabriela were
then incharge of a part of the estate of the deceased and were under
the care and direction of the defendant Gatchalian;
4) that Dionisio Fulgencio, legally married, in second wedlock, the Benita
Gatchalian, with whom he did not have any surviving or posthumous
child, and left only one legitimate son, by his first marriage, named
Fernando Fulgencio, on marrying Gatchalian, brought the sum of 2,500
pesos Mexican currency as shown as private property;
5) that the conjugal partnership of the deceased Fulgencio with the said
Gatchalian, and the aforementioned sum, produced, up to the time of
the husband's death, several thousands pesos, all the property of the
said partnership
6) that the property, with the exception of the said sum of 2,500 pesos
Mexican currency, was under the control and in the legal possession of
the Benita Gatchalian, Petrona Clavo, Emeteria Cristobal, Leoncia Belen
and Gabriela Lopez, and
7) that Gatchalian was, with the exception of such property, insolvent;
8) that a demand having repeatedly been made upon the defendants for
the friendly delivery by them of the said property, they categorically
refused to deliver the same
Defendants denied absolutely each and all of the facts alleged against
them in the complaint. As a special defense, Gatchalian added that Dionisio
Fulgencio, on his marriage with her, brought as property of his own only a
few articles from his drug store, amounting to the sum of 100 pesos; that
the defendant Gatchalian, on her marriage with the said deceased, brought
9,000 pesos in cash and 3,000 pesos in goods; that the profits obtained by
the widow Gatchalian, in the business in which she engaged with the said
sum, as well as with the 100 pesos brought in by her deceased husband,
were squandered by the latter in his lifetime in gambling, and that
consequently, the capital brought to the marriage by Gatchalian, far from
increasing, was considerably diminished; that all the property designated in
17 |
the complaint, was acquired by the defendant Gatchalian with her own
funds, except those which were the subject matter of current accounts,
yet unsettled, with various commercial houses in Manila.
The lower court then required Benita to surrender possession of the
properties subject of the complaint.
ISSUE/S:
Whether the wifes paraphernal property must be included in the
settlement of the husbands estate
HELD:
YES. It has not been conclusively proven that the property claimed
by the administratrix is paraphernalia and belongs exclusively to the
defendant Benita Gatchalian. As such they are deemed to be conjugal
partnership property, liable for the debts of the conjugal partnership,
and therefore, the administratrix has a right to be placed in possession
of the same for the purpose of its inventory in the special proceedings,
without prejudice to the rights of the widow Benita Gatchalian in relation
to her own property or to that of the nature of paraphernalia, for, once
the inventory of the property of the intestate estate has been
made, the latter will have the same opportunity to claim the
exclusion of the property belonging to her exclusively and that of
the nature of paraphernalia.
Sec. 3. Process. - In the exercise of probate jurisdiction, Court of First
Instance may issue warrants and processes necessary to compel the
attendance of witnesses or to carry into effect their orders and
judgments, and all other powers granted them by law. If a person does
not perform an order of judgment rendered by a court in the exercise of
its probate jurisdiction, it may issue a warrant for the apprehension and
imprisonment of such person until he performs such order or judgment,
or is released.
Q Can probate courts issue writs of execution?
A Generally, NO because said courts orders usually refer to the
adjudication of claims against the estate which the executor or
administrator may satisfy without need of executory processes. The
rules, however, specify the instance wherein the probate court
may issue a writ of execution, to wit:
1. to satisfy the contributive shares of the devisees, legatees and
heirs in the possession of the decedents assets (Section 6,
Rule 88)
2. to enforce payment of the expenses of partition (Section 3,
Rule 90); and
3. to satisfy the courts when a person is cited for examination in
probate proceedings (Section 13, Rule 142)
Under the rule of inclusion unius est exclusion alterious, these would be
the only instances when the probate court can issue a writ of execution.
Sec. 4. Presumption of death. - For purposes of settlement of his
estate, a person shall be presumed dead if absent and unheard from for
the periods fixed in the Civil Code. But if such person proves to be alive,
he shall be entitled to the balance of his estate after payment of all his
debts. The balance may be recovered by motion in the same proceeding.
Q Which can be presumed dead?
A Under the New Civil Code:
Art. 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may be opened. (n)
Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
1. A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for
four years since the loss of the vessel or aeroplane;
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
2. A person in the armed forces who has taken part in war, and has
been missing for four years;
3. A person who has been in danger of death under other
circumstances and his existence has not been known for four
years. (n)
Art. 392. If the absentee appears, or without appearing his existence
is proved, he shall recover his property in the condition in which it may be
found, and the price of any property that may have been alienated or the
property acquired therewith; but he cannot claim either fruits or rents.
(194)
(
No&Independent&Action&For&Declaration&of&Presumption&of&Death&
The(disputable(presumption(established(by(the(rules(of(evidence(
that( a( person( not( heard( from( in( seven( years( is( dead,( may( arise(
and( be( invoked( either( in( an( action( or( in( a( special( proceeding,(
which( is( tried( or( heard( by,( and( submitted( for( decision( to,( a(
competent( court.( Independently( of( such( as( action( or( special(
proceeding,(the(presumption(of(death(cannot(be(invoked(nor(can(
it(be(made(the(subject(of(an(action(or(special(proceeding.(
There( is( no& need( for( an( independent( action( for( Declaration( of(
Presumptive(Death(for(purposes(of(Succession.(
(
Q ?
A While it is true that a special proceeding is an application or
proceeding to establish the status or right of a party, or a particular
fact; but, as already said, that remedy can be invoked if the purpose is
to seek the declaration of death of the husband. A petition for
judicial declaration that petitioners husband is presumed to be
dead cannot be entertained because it is not authorized by law,
and if such declaration cannot be made in a special proceeding much
less can the court determine the status of petitioner as widow since this
matter must of necessity depend upon the fact of death of the
husband. The philosophy behind this ruling is that a judicial
pronouncement to that effect, even if final and executory, would still be
a prima facie presumption only. It is still disputable. It is for that reason
that it cannot be the subject of a judicial pronouncement of declaration,
if it is the only question or matter involved in a case, or upon which a
complement court has to pass. (Lukban vs. Republic)
In the Matter of the Declaration of the Civil Status of: LOURDES
G. LUKBAN vs. REPUBLIC OF THE PHILIPPINES,
98 PHIL. 574 (1956)
FACTS:
Lourdes G. Lukban contracted marriage with Francisco Chuidian. 17
days after their marriage, Francisco left Lourdes after a violent quarrel and
since then he has not been heard from despite diligent search made by
her. She believes that he is already dead because he had been absent for
more than 20 years, and because she intends to marry again, she desires
that her civil status be defined in order that she may be relieved of any
liability under the law.
Thus, a petition was filed in the CFI of Rizal praying for a declaration
that Petitioner is a widow of her husband Francisco Chuidian who is
presumed to be dead and has no legal impediment to contract a
subsequent marriage. The Solicitor General opposed the petition on the
ground that the same is not authorized by law. After Petitioner had
presented her evidence, the court sustained the opposition and dismissed
the petition. Hence this appeal.
ISSUE/S:
Whether the presumption of death can be the subject of judicial
pronouncement.
HELD:
NO. While it is true that a special proceeding is an application or
proceeding to establish the status or right of a party, or a particular fact;
but, as already said, that remedy can be invoked if the purpose is to seek
the declaration of death of the husband. A petition for judicial declaration
18 |
(
Extrajudicial&Settlement&Requisites:&
(1)(The(decedent(left:(
(
(a)(NO(will(
(
(b)(NO(debts(
(2)(The(heirs(are(all(of(age(or(the(minors(are(represented(by(their(
judicial(or(legal(representatives(duly!authorized!for!the!purpose.(
(
Procedure:(
(1) Division(of(estate(must(be(in(PUBLIC(INSTRUMENT(or(by(
AFFIDAVIT(of(SELFdADJUDICATION(in!case!of!a!sole!heir.(
(2) Filed(with(proper(Registry(of(Deeds.(
(3) Publication( of( notice( of( the( fact( of( extrajudicial(
settlement(once(a(week(for(3(CONSECUTIVES(
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
(4) Bond(filed(equivalent(to(the(value(of(PERSONAL(property.(
Note:(
(
The(bond(is(required(only(when(personalty(is(involved.(If(its(
is(a(real(estate,(it(shall(be(subject(to(a(lien(in(favor(of(creditors,(heirs(
or(other(persons(for(the(full(period(of(2(years(from(such(distribution(
and(such(lien(cannot(be(distributed(by(a(bond.((Rebong!vs.!Ibanez)!
(
Public( instrument( is( not( necessary( for( the( validity( of( an(
extrajudicial( settlement.( Private( instrument( or( oral( agreement( of(
partition( as( well( as( a( compromise( agreement( without( previous(
authority(of(the(court(is(valid.((See!Hernandez)(
(
Affidavit&of&SelfYAdjudication&(It(is(an(affidavit(required(by(Sec.(1(of(
rule( 74( to( be( executed( by( the( sole( heir( of( a( deceased( person( in(
adjudicating(to(himself(the(entire(estate(left(by(the(decedent.(
What( constitutes( good& reason( to( warrant( a( judicial(
administration( of( the( estate( of( the( deceased( when( the( heirs( are(
all( of( legal( age( and( there( are( no( creditors( will( depend( on( the(
circumstances(of(each(case.(
(
Q What are the different modes of settlement of intestate estate?
A
1. Intestate proceedings
2. Extrajudicial settlement by agreement among the heirs
3. Sole adjudication by means of an affidavit
4. Summary settlement of an estate of small value
5. Ordinary action for partition
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q Why must the amount of the bond be equivalent to the value of
the personal property?
A For the protection of any heir who may be unlawfully deprived. To
answer for any claim which may arise subsequent to the extrajudicial
settlement.
Q What is meant by an Ordinary Action of Partition?
A One filed by persons who are co-owners of a certain property. Pursuant
to Article 493 Title II of the New Civil Code, each co-owner may
demand at any time the partition of the thing owned in common insofar
as his share is concerned And as provided in Article 496 partition be
made byjudicial proceedings and shall be governed by the Rules of
Court
Q Are the heirs compelled by the Rules to enter into an
extrajudicial settlement if all the requisites are present?
A No. The Rules state that the parties maydivide the estate among
themselves Hence, the rule is permissive and not mandatory.
Q What is meant by Stipulation in a Pending Action?
A That there is already a pending action for settlement before the courts
yet the parties nonetheless agree to enter into an extrajudicial
settlement.
Q What is the rule with respect to the administration of the
estate of the decedent?
A The Rules of court says If
court
granted
the
judicial
ISSUE:
W/N the judicial administration of Luzs property is proper.
HELD:
NO. The Code of Civil Procedure provides: If no executor is
named in the will, or of a person dies intestate, the administration shall
be granted..etc. This provision enunciate the general rule that when a
person dies leaving property in the Philippines, his property should be
judicially administered and the competent court should appoint a
qualified administrator, in the order established in the section, in case
the deceased left no will, or in case he had left one and he fails to name
an executor therein.
This rule however, is subject to exceptions pursuant to the
CCP. According to the first, when all the heirs are of lawful age and there
are no debts due from the estate, they may agree in writing to partition
the property without instituting the judicial administration or applying for
the appointment of an administrator. According to the second, if the
property left does not exceed six thousand pesos, the heirs may apply to
the competent court after the required publications to proceed with
summary partition and, after paying all the known obligations to partition
all the property constituting the inheritance among themselves pursuant
to law without instituting the judicial administration and the appointment
of an administrator.
When a person dies without leaving pending obligations to be
paid, his heirs, whether of age or not, are not bound to submit his
property to a judicial administration which is always long and costly or to
apply for the appointment of an administrator by the court. It has been
uniformly held that in such case, the judicial administration and the
appointment of an administrator are superfluous and unnecessary
proceedings.
When there are no debts and the heirs are all adults, their relation to
the property left by their ancestor is the same as that of any other coowners in common, and they may recover their individual rights, the
same as any other co-owners of undivided property.
Q Is the requirement that the settlement should be made in a
public instrument necessary for the validity of the
extrajudicial partition?
A On general principle, independent and in spite of the Statute of
Frauds, courts of equity have enforced oral partition when it has been
completely or partly performed.
Section 1 of Rule 74 contains no express or clear declaration that the
public instrument therein required is to be constitutive of a contract or
partition or an inherent element of its effectiveness as between the
parties. And this Court had no apparent reason in adopting this rule to
make the efficacy of a partition as between the parties dependent on the
execution of a public instrument and its registration. The requirement
that a partition be put in a public instrument and registered has for its
purpose, the protection of creditors and at the same time, the protection
of the heirs themselves against tardy claims. Note that the last sentence
of the section speaks of debts and creditors. The object of registration is
to serve as constructive notice and this means notice to others. It must
follow that the intrinsic validity of partition not executed with the
prescribed formalities does not come into play when there are no
creditors or the rights of creditors are not affected. No rights of creditors
being involved, it is competent that for the heirs of an estate to enter
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
into an agreement for distribution in a manner and upon a plan different
from those provided by law. (Hernandez v. Andal)
Hernandez v. Andal
FACTS:
Plaintiff Cresencia Hernandez and her sister, intervenor in this
case, inherited a parcel of land from their father. The Intervenors sold a
portion of this land to defendant Zacarias Andal for P860. This portion
purports to be the combined shares of the intervenors allotted to them in a
verbal partition alleged to have been made by them.
Plaintiff attempted to repurchase the land for P150 but the
defendant refused to part with the property. Hence, she filed a complaint
announcing that she was willing to repurchase her sisters shares for P860
plus expenses incurred in the execution of the deed.
The sisters answer in intervention alleged that there had been a
partition among them and that plaintiff was in bad faith. (It appears that
Cresencia offered to purchase her sisters portion for P150. The sisters
wanted P850 which was the amount offered by the defendant)
Meanwhile, defendant resold the property to the vendors for
Torres v. Torres
FACTS:
Alberto Torres, one of the legitimate children of Paz E.
Siguion-Torres who died intestate, prayed for the issuance in his favor of
letters of administration in connection with the properties left by the
decedent. It was alleged therein that he was unaware of any existing
debt or obligation contracted by the deceased or her estate.
This petition was opposed by Conchita Torres, one of the heirs
of the deceased on the ground that the appointment of an administrator
is unnecessary because the heirs had already entered into an
extrajudicial partition and settlement of the estate pursuant to Sec 1
Rule 74 of the ROC.
In the petitioners answer to the opposition, he contended that
despite the extrajudicial partition attempt at the actual designation of
their respective shares have failed, thus needing the courts intervention.
It was also claimed that some properties of considerable value were not
included in said partition. In addition, the petitioner this time alleged that
the estate has an existing debt of P50,000 from third persons which
Alberto claimed was not incorporated in the petition by reason of
oversight.
P970.
The lower court declared this resale was illegal and in bad faith.
Defendant was ordered to execute a deed of sale in favor of plaintiff.
On appeal the defendant and intervenors made one assignment
of error, that the lower court erred in refusing to admit oral evidence for
proving the contract of partition on the ground that it was not admissible.
ISSUE:
Is writing the act that confers legality upon the agreement?
HELD:
On general principle, independent and in spite of the Statute of
Frauds, courts of equity have enforced oral partition when it has been
completely or partly performed.
Section 1 of Rule 74 contains no express or clear declaration that the
public instrument therein required is to be constitutive of a contract or
partition or an inherent element of its effectiveness as between the parties.
And this Court had no apparent reason in adopting this rule to make the
efficacy of a partition as between the parties dependent on the execution
of a public instrument and its registration. The requirement that a partition
be put in a public instrument and registered has for its purpose, the
protection of creditors and at the same time, the protection of the heirs
themselves against tardy claims. Note that the last sentence of the section
speaks of debts and creditors. The object of registration is to serve as
constructive notice and this means notice to others. It must follow that the
intrinsic validity of partition not executed with the prescribed formalities
does not come into play when there are no creditors or the rights of
creditors are not affected. No rights of creditors being involved, it is
competent that for the heirs of an estate to enter into an agreement for
distribution in a manner and upon a plan different from those provided by
law.
Q What is the effect of the existence of debts?
A It is only when debts exist and there is no way of collecting them
extrajudicially because the creditors have not reached an amicable
settlement with the heirs that they can compel the filing of special
proceedings before the court for the liquidation of said debts.
However, while the rule provides that the decedent must not have left
any debts, it is sufficient if any debts that may have been left have been
paid at the time the extrajudicial settlement is entered into.
The subsequent bare allegation that the estate has an existing debt
from third persons without specifying the creditor and other details in
regard thereto cannot be considered a concise statement to constitute a
cause of action nor does the unverified statement that there are other
properties not included in the deed of extrajudicial partition in the
possession of one of the heirs, justify the institution of administration
proceedings because such questions can be litigated in an ordinary action
for partition. (Torres v. Torres)
21 |
HELD:
NO. Pursuant to Sec 1 of Rule 74 of the ROC, the SC held that where
the decedent left no debts and heirs or legatees are all of age, as in this
case, there is no necessity for the institution of special proceedings and
the appointment of an administrator for the settlement of the estate
because the same can be effected either extrajudicially or through an
ordinary action for partition.
In further application of the this rule to the case at bar, The
subsequent bare allegation that the estate has an existing debt from
third persons without specifying the creditor and other details in regard
thereto cannot be considered a concise statement to constitute a cause
of action nor does the unverified statement that there are other
properties not included in the deed of extrajudicial partition in the
possession of one of the heirs, justify the institution of administration
proceedings because such questions can be litigated in an ordinary
action for partition
Q If the estate had no debts or obligations, are they precluded
from instituting administration proceedings?
A No. Sec.1 Rule 74 of the ROC does not preclude the heirs from
instituting administration proceedings even if the estate had no debts
or obligation if they do not desire to resort for good reason to an
ordinary action for partition.
While Sec 1 allows the heirs to divide the estate among themselves as
they may see fit, or to resort to an ordinary action of partition, it does
not compel them to do so if they have good reasons to take a different
course of action. Said section is not mandatory or compulsory as may be
gleaned from the word may. If the intention were otherwise, the framer
of the rule would have employed the word shall as was done in other
provisions that are mandatory in character. Note that the word may is
used not only once bit in the whole section which indicates an intention
to leave the matter entirely to the discretion of the heirs. (Arcillas v.
Montejo)
Arcillas v. Montejo
FACTS:
Eustaquio Arcillas died intestate. His children filed a petition
for the issuance of letters of administration in favor of Aurelio Arcillas
preparatory to the formal settlement of Eustaquios estate.
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Geronimo Arcillas, one of the heirs, opposed the issuance of the letters of
administration arguing that in as much as Lot 276 was the only property
left by the deceased and the deceased had no debts, the petition for
administration was improper.
Aurelio countered that there are still other properties of the
estate besides the lot and that the administration proceedings could not be
dispensed with since
(1) there was no unanimity among the heirs for extrajudicial partition and
(2) that some of the heirs had been unduly deprived of their participation
in the estate.
The lower court denied the petition for issuance of LOA on three
grounds:
1) to obviate the necessity of spending uselessly which would only
deplete the funds of the estate
2) to avoid unnecessary delay in partition and
3) by virtue of Sec 1 Rule 74 of the ROC which provides that if the
decedent left no will and no debts and the heirs and legatees are
all of age, the parties may without securing LOA divide the
estate among themselves as they see fit and should they
disagree, they may do so in an ordinary action for partition.
On petition for certiorari filed by Aurelio, the respondents Geronimo and
the CFI judge claim that in as much as the aforementioned minimum
requirements of Sec 1 Rule 74 obtain, there is no necessity for the
institution of special proceedings and the appointment of an administrator
for it is superfluous and unnecessary. In other words, they view the above
section to be mandatory upon the heirs so long as the deceased left no will
nor any pending obligations to be paid and the heirs are all of legal age.
ISSUE:
W/N the heirs are precluded from instituting administration
proceedings if the estate has no debts and obligations and the deceased
left no will and they are all of legal age.
HELD:
NO. Sec.1 Rule 74 of the ROC does not preclude the heirs from
instituting administration proceedings even if the estate had no debts or
obligation if they do not desire to resort for good reason to an ordinary
action for partition.
While Sec 1 allows the heirs to divide the estate among
themselves as they may see fit, or to resort to an ordinary action of
partition, it does not compel them to do so if they have good reasons to
take a different course of action. Said section is not mandatory or
compulsory as may be gleaned from the word may. If the intention were
otherwise, the framer of the rule would have employed the word shall as
was done in other provisions that are mandatory in character. Note that
the word may is used not only once bit in the whole section which
indicates an intention to leave the matter entirely to the discretion of the
heirs.
Having decided to institute administration proceedings instead of
resorting to the less expensive modes of settlement of estate (i.e.
extrajudicial settlement or ordinary action for partition, the heirs may not
be rebuffed in the exercise of their discretion granted under Sec 1 Rule 74
merely on the ground that the expenses usually common in administration
proceedings may deplete the funds of the estate. The resultant delay and
extraordinary expenses incurred thereafter are consequences which must
be deemed to have been voluntarily assumed by the heirs themselves so
that they may not in the future be heard to complain on these matters.
Besides, the truth or veracity of Aurelios claim as to the alleged existence
of other properties of the deceased aside from the lot in question can be
more adequately ascertained in administration proceedings rather than in
any other action.
Q Is the partition entered into by the parties final?
A Yes. The division or partition should be considered as final settlement of
the estate of the deceased and no administrator can thereafter be
appointed to take charge of and administer the estate.
Unless and until it is shown that there were debts existing against the
estate, which had not been paid, the division in conclusive so much so that
even if unpaid debts are later discovered, such discovery does not destroy
22 |
the partition made. It simply furnished ground for the application by the
creditor for the appointment of an administrator or for the payment of
his credit as provided in Section 4 Rule 74.
Further, Section 1, Rule 74 provides that it shall be presumed that
the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent.
Q What is the remedy of the aggrieved party after an
extrajudicial settlement is approved by the court?
A Filing either a petition for relief under Rule 38 or a new action to
annul the settlement within the period established by the statute of
limitations. The action to annul a deed of extrajudicial settlement on
the ground of fraud must be filed within four years from discovery of
the fraud.
Sec. 2. Summary settlement of estates of small value. - Whenever
the gross value of the estate of a deceased person, whether he died
testate or intestate, does not exceed ten thousand pesos, and that fact is
made to appear to the Court of First Instance having jurisdiction of the
estate by the petition of an interested person and upon hearing, which
shall be held not less than (1) month nor more than three (3) months
from the date of the last publication of a notice which shall be published
once a week for three (3) consecutive weeks in a newspaper of general
circulation in the province, and after such other notice to interested
persons as the court may direct, the court may proceed summarily,
without the appointment of an executor or administrator, and without
delay, to grant, if proper, allowance of the will, if any there be, to
determine who are the persons legally entitled to participate in the
estate, and to apportion and divide it among them after the payment of
such debts of the estate as the court shall then find to be due; and such
persons, in their own right, if they are of lawful age and legal capacity,
or by their guardians or trustees legally appointed and qualified, if
otherwise, shall thereupon be entitled to receive and enter into the
possession of the portions of the estate so awarded to them respectively.
The court shall make such order as may be just respecting the costs of
the proceedings, and all orders and judgments made or rendered in the
course thereof shall be recorded in the office of the clerk, and the order
of partition or award, if it involves real estate, shall be recorded in the
proper register's office.
Note( From( Herrera:( The! MTC! &! MCTC,! BP! 129! as! amended,! now!
has! probate! jurisdiction! where! the! value! of! the! estate! does! not!
exceed!P100,000!or!P200,000!in!Metro!Manila.!
(
Q What is the nature of a summary settlement?
A In a summary manner, the estate of the deceased is valued, his
debts, if any, are paid, his will, if any, is allowed; the heirs and
legatees are declared and the dissolution is made, all in a single
hearing and in a single order as far as this is practicable, without the
appointment of any administrator or executor. This is done with the
least possible delay though not necessarily in one hearing,
Q What are the requisites for a valid summary settlement of an
estate of small value?
A
1. The gross value of the estate of a deceased person does not
exceed ten thousand pesos
2. That there are no existing debts
3. That a bond has been duly filed
4. That a proper hearing is held
5. Publication of a notice once a week for three consecutive
weeks in a newspaper of general circulation.
Q When is a summary settlement proper?
A Whether testate or intestate for as long as the gross value of the
estate does not exceed ten thousand pesos.
Q Where is the petition for the summary settlement of an
estate of a small value filed?
A BP 129 has conferred exclusive jurisdiction in the inferior courts i.e
the MeTC, MuTC, MuCirTC in all matters of probate both testate and
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
intestate. Where the gross value of the estate does not exceed
P20,000 (Sec 19.4 Sec 33.1) This has resulted in investing said inferior
courts with exclusive jurisdiction in summary settlement of estate of
small value since the maximum jurisdictional limit on the gross estate
involved in said proceeding is P10,000. This is notwithstanding the fact
that the ROC promulgated in 1986 still provides that it be filed with the
RTC BP 129 enacted in 1980 is a substantive law which prevails over
the ROC which is procedural in nature.
Q What are the steps for the summary settlement of estates of
small value?
A The following are the steps for the summary settlement of estates of
small value:
1. Determine the gross value of the estate. If the gross value of the
estate is less than ten thousand pesos, file a petition with the
MTC
2. A hearing is set to determine the existence of debts. If the court
finds that there are, it orders the payment of debts.
3. If the deceased died with a will, it should be presented for
probate; and
4. Distribute the estate in accordance with the will or the rules on
intestacy as the case may be.
Q What happens after the court issues an order granting the
allowance of the will?
A The distributees in their own right if they are of age or by their
guardians or trustees legally appointed and qualified if otherwise, shall
be entitled to receive and enter into possession of the position awarded
to them.
Note: The probate court is not the best forum for the resolution of
adverse claims of ownership of any property ostensibly belonging to the
decedents estate.
It is not proper to delay the summary settlement of a deceased
person just because an heir or third person claims that certain properties
do not belong to the estate but to him. Such claim must be ventilated in an
independent action and the probate court should proceed to the
distribution of the estate if there are no legal obstacles to it, for after all
such distribution must always be subject to the results of the suit. The
remedy of the claimant is to have the proper annotation of his lis pendens
entered.
Q What happens if no appeal is taken from the order of summary
settlement?
A Where no appeal is taken from the order of summary settlement which
declares that the dispositions in the will, in so far as the shares of the
heirs, devisees and legatees are concerned, are in accordance with law,
it will no longer be disturbed if there is no showing that the procedural
requirements laid down under Sec 2, Rule 74 have not been followed.
Q What is the remedy of a person unduly deprived of his lawful
participation in the estate.
A The summary distribution of the estate of a deceased person ordered
by the competent court is final and definitive, unless within two years
after the distribution of the estate it appears that there are outstanding
debts or that an heir or other person has been unduly deprived of his
lawful participation from the estate in which case any creditor heir of
interested person may compel the judicial distribution and partition of
said estate in the ordinary manner.
Sec. 3. Bond to be filed by distributees. - The court, before allowing a
partition in accordance with the provisions of the preceding section, may
require the distributees, if property other than real is to be distributed, to
file a bond in an amount to be fixed by court, conditioned for the payment
of any just claim which may be filed under the next succeeding section.
23 |
When&Settlement&of&Estates&in&the&Courts&may&be&Compelled:(
(1)(If(there(is(an(undue(deprivation(of(lawful(participation(in(the(
estate;(
(2)(The(existence(of(debts(against(the(estate;(or(
(3)(If(there(is(an(undue(deprivation(of(lawful(participation(payable(
in(money.(
(
Note:(
The(bar(against(distributes(from(objecting(to(an(extrajudicial(
partition(after(the(expiration(of(two(years(is(applicable(only(to(the(
ff.:(
(1)(To(persons(who(have(participated(or(taken(part(or(had(notice(
of(the(extrajudicial(partition;(an(
(2)(When(all(the(persons(or(heirs(of(the(decedent(have(taken(part(
in(the(extrajudicial(settlement.(
(
Remedies&of&the&Aggrieved&Parties&After&Settlement&of&the&Estate:&
(1)(Within&2&years((claim(against(the(bond(or(the(real(estate(or(
both(
(2)(Rescission(in(case(of(preterition(of(compulsory(heir(in(partition(
tainted(with(bad(faith(
(3)(Reconveyance(of(real(property(
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
(4)(Action&to&annul&a(deed(of(extrajudicial(settlement(on(the(ground(
of(fraud(which(should(be(filed(within(4(years(from(the(discovery(of(
fraud(
(5)( Petition& for& Relief( on( the( ground( of( FAME( (fraud,( accident,(
mistake,(excusable(negligence)(60(days(after(the(petitioner(learns(of(
the( judgment,( final( order( or( other( proceeding( to( be( set( aside,( and(
not( more( than( 6( months( after( such( judgment( or( final( order( was(
entered.(
(6)( Reopening( by( intervention( within( anytime( before( rendition( of(
judgment,(as(long(as(it(is(within(the(reglementary(period(of(2(years(
(7)(New(action(to(annul(settlement(within(reglementary(period(of(2(
years.(
(
Important&Doctrines:
(An(heir(deprived(of(his(share(may(file(an(action(for(reconveyance(
based( on( an( implied( or( constructive( trust( which( prescribes( 10(
years( from( the( date( of( registration( or( date( of( issuance( of(
certificate( of( title( or( from( actual( discovery( of( fraud( if( the(
registration(was(made(in(bad(faith.(
Where(the(estate(has(been(summarily(settled,(the(unpaid(creditor(
may,(within&2&years,(file(a(motion(in(court(wherein(such(summary(
settlement(was(had,(for(the(payment(of(his(credit.(
After( the( lapse( of( 2( years,( an( ordinary( action( may( be( instituted(
against(the(distributes(within(the(statute(of(limitations(BUT(NOT(
against(the(bond.(
Such( lien( cannot( be( discharged( nor( the( annotation( be( cancelled(
within( the( 2( year( period( even( if( the( distributees( offer( to( post( a(
bond( to( answer( for( contingent( claims( from( which( lien( is(
established.(
Exception&to&prescription&of&actions:(There(is(one(instance(when(
prescription( cannot( be( invoked( in( an( action( for( reconveyance.(
That( is,( when( the( plaintiff( is( in( possession( of( the( land( to( be(
reconveyed.((The(registered(owners(were(never(in(possession(of(
the(disputed(property.(Instead,(it(was(the(legal(owners(of(the(land(
who(had(always(been(in(possession(of(the(same.(Thus,(the(Court(
allowed(the(action(for(reconveyance(to(prosper(despite(the(lapse(
of( 10( years( from( the( issuance( of( title( to( the( land.( Reason:!
registration! proceedings! could! not! be! used! as! a! shield! for! fraud!
enriching!a!person!at!the!expense!of!the!other.(
Q What is the rationale behind the rule that the property shall be
subject to an encumbrance of two years?
A 2 years is believed to be a reasonable time for creditors and other
interested partied to be on notice of the extrajudicial settlement.
Q Must the lien be annotated in the certificate of title?
A Yes. The lien must be annotated in the certificate of title for the
protection of unpaid creditors and heirs unlawfully deprived of their
participation. Otherwise, a purchaser in good faith of the property may
defeat the lien constituted for their protection.
Q What is the effectivity of the lien created by this section in
favor of unpaid creditors or heirs unduly deprived of their
lawful participation?
A The lien established is effective only for two years. After the two-year
period, such lien becomes functus officio and it may be cancelled at the
instance of the transferee of the land involved. (Carreon v. Agcaoili)
Carreon v. Agcaoili
FACTS:
Bonifacio Carreon and Celerina Dauag acquired a homestead
land during their marriage. Carreon died. Celerina executed an affidavit
wherein she declared that she was the only heiress of her husband and at
24 |
the same time, adjudicating to herself alone the said land. A TCT was
issued in her name but a lien to the effect that her title was subject to
Sec4, Rule 74 of the ROC was annotated thereon.
Celerina thereafter, borrowed P1,200 from PNB guaranteed by
a mortgage on of the land. Said mortgage was likewise annotated in
the TCT. After the maturity of said loan, she sold the land to Rufo
Agcaoili for P3,000 (Sale was approved by the Secretary of Agriculture
and Nat. Resource even though the land acquired was a homestead) The
loan from the bank was then paid, the mortgage released and the Deed
of Absolute Sale was executed and registered in favor of Agcaoili.
Subsequently, the children of Celerina with the deceased
husband filed a complaint against Spouses Agacaoili seeking to gave the
deed of sale executed by their mother declared as one of mortgage and
to recover pro indiviso of said land. Celerina also filed a motion to
intervene but the same was dismissed by the trial court.
The trial court held that plaintiffs claim has no legal basis.
On appeal, plaintiff-appellants contend that defendant
appellees were that there existed a trust relationship between them and
the appellants and that such being the case, the action against appellees
is imprescriptible.
ISSUE:
W/N the plaintiffs have a cause of action based on the
annotated statement that the land was subject to Sec4 of Rule 74
HELD:
NO. The lien created by virtue of said annotation is effective only for
a period of two years. From the time the TCT was issued to Celerina to
the moment the deed of sale in favor of Agcaoili was issued and
registered, more than two years had elapsed. The right to have such lien
cancelled became vested on appellee Agcaoili and that the same had
become functus officio. The SC found no reason to apply the proposition
that he is deemed to be holding the land in trust for the children of
Celerina Dauag.
Q When is the two year effectivity period reckoned?
A It is reckoned from the date and time inscribed is placed
Q Must you go to court to have the annotation in the certificate
of title cancelled after the lapse of two years?
A NO. The lien annotated therein becomes functus officio that is, it is
already a performed function.
Q May the lien be substituted by a bond?
A No. Such lien cannot be discharged nor the annotation cancelled
within the two year period even if the distribute offers to post a bond
to answer for the contingent claims for which the lien is established.
Q What is the remedy if fraud is alleged?
A If annulment of the Extrajudicial settlement is sought on the ground
of fraud, such action must be filed within 4 years from the
discovery of the fraud. Such discovery is deemed to have taken
place when the instrument was filed with the Register of deeds and
new certificates of title was issued, for such registration constitutes
constructive notice to the whole world.
Q What is the effect of discovery of unpaid debts after the
extrajudicial settlement has been effected?
A The partition provided for in these sections is binding and valid even
though not all of the debts outstanding were paid before the partition
was made.
The discovery of an unpaid obligation after partition does not destroy
the partition. It simply furnishes ground for the application of the
creditor for the appointment of an administrator (McMiking v. Sy
Conbieng)
Q Will entire property be under administration?
A No. The discovery of a debt after the partition does not permit the
whole property in possession of the partitioning parties to be thrown
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
into administration. Only so much of the property is subject to such
administration as is sufficient to pay the claim discovered, leaving the
partitioning persons in undisturbed possession of the remainder.
(McMiking v. Sy Conbieng)
Q Is administration the only remedy?
A Even after the discovery of a debt subsequent to a partition, the
partitioning persons may prevent any administration whatever by
paying the debt discovered, thereby preserving the partition intact in all
its parts. (McMiking v. Sy Conbieng)
Q What is the effect of an extrajudicial partition after an
administrator had already been appointed?
A Where after the appointment of an administrator, the due making of
the inventory of the property and the taking possession thereof by such
administrator and agreement is made between the owners thereof, the
delivery of the property to such partitioning owners by such
administrator, under proper proceedings and order of court and after
compliance with the provisions of such sections, is in effect, a discharge
of such administrator as to all future obligations and responsibilities in
relation to said property.
Q What is the effect of the reopening of the partition upon
discovery of unpaid debts?
A While at any time, within two years after such partition the property or
portion thereof in possession of the partitioning parties may be placed
in administration in the event of the discovery of unpaid debts, it would
not be the same estate represented by the prior administrator and he
would not be the administrator of the new estate by virtue of his
appointment in the old.
It would be necessary to appoint upon proper application and notice,
another administrator for the purposes set forth in said sections (McMiking
v. Sy Conbieng)
Mcmicking v Sy Conbieng
FACTS:
Margarita Jose died and Palanca was appointed administrator of
her estate and Lao and Cunyao became the latters sureties. A partition of
the estate of Lao was approved thus the administrator Velasco delivered to
the heirs and legatees the properties of the estate.
Later, Palanca was removed as administrator of the estate of
Jose and McMicking replaced him. It was learned that Palanca was
indebted to the estate of Jose. To satisfy such claims, the court ordered
Velasco to pay the claims as administrator of the estate of the surety Lao.
A claim was thereafter made against Barretto as surety of
Velasco.
ISSUE:
W/N the estate of Barretto is liable.
HELD:
NO. Doroteo Velasco for whom the deceased Barretto was surety
would not have been liable himself had this action been commenced
against him so that if the principal is not liable, the surety cannot be.
An administrator who has been duly appointed and has taken
possession of the property of his decedent and who upon proper
proceedings and order of court turns over the property to the owners
thereof after a partition among them in accordance with Sec 596 and 597
of the Code of Civil Procedure is approved performs his full duty and is
discharged from any liability.
The principal Velasco is not liable because the discovery of an
unpaid obligation (in this case, the claim on Velasco as surety for Palanca)
after an extrajudicial partition does not destroy the partition applied for by
Velasco. The partition is still binding and valid. It simply furnishes ground
for the application by the creditor for the appointment of an administrator.
Nature&of&Probate&Proceedings&
(1)(In&Rem((binding(on(the(whole(world(
(2)(Mandatory((No(will(shall(pass(either(real(or(personal(property(
unless(it(is(proved(and(allowed(in(the(proper(court.(
(3)(Imprecriptible((because(of(the(public(policy(to(obey(the(will(of(
the(testator(
(4)(The&doctrine&of&estoppel&does¬&apply((
(
Note:&(In(determining(the(extrinsic(validity(of(the(will,(substantial(
compliance(is(acceptable(when(the(purpose(of(the(law(has(been(
satisfied,(because(the(solemnities(surrounding(the(execution(of(
wills(are(intended(to(protect(the(testator(from(all(kinds(of(fraud(
and(trickery(but(never(intended(to(be(so(rigid(and(inflexible(as(to(
destroy(the(testamentary(privilege.((Icasiano!vs.!Icasiano)!
(
Q What is the meaning of probate of a will?
A The probate of a will is a judicial act whereby an instrument is
adjudged valid and is ordered to be recorded. It is the statutory
method of establishing the proper execution of the instrument and
giving notice of its contents.
Q What is the purpose of probate?
A The purpose of probate is to establish conclusively as against
everyone, once and for all, the fact that a will was duly executed with
the formalities required by law and that the testator was in a
condition to make a will.
Q What does due execution refer to?
A Due execution means that
1. the formalities of the law has been complied with
2. the capacity of the testator has been established (i.e. he was
of sound mind and did not act under fraud, duress,
intimidation, etc.);
3. the will is genuine
NOTE: the conclusiveness of such matters only refer to the EXTRINSIC
VALIDITY of a will. The intrinsic validity of a will is governed by the
laws of legitimes.
Q What is the nature of the probate of a will?
A The probate of a will in this jurisdiction is a proceeding in rem. The
provision of notice by publication as a prerequisite to the allowance of
a will is constructive notice to the whole world, and when the probate
25 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
is granted, the judgment of the court is binding upon everybody, even
against the State.
(b) whether the order of the Court of origin overruling the estoppel
invoked by oppositors-appellants had likewise become final
HELD:
A probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and
witnessing of his last will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise. As such, the probate
order is final and appealable.
Estoppel cannot be raised in probate proceedings. The presentation
and probate of a will are requirements of public policy, being primarily
designed to protect the testator's, expressed wishes, which are entitled
to respect as a consequence of the decedent's ownership and right of
disposition within legal limits. It would be a non sequitur to allow public
policy to be evaded on the pretext of estoppel. Whether the order
overruling the allegation of estoppel is still appealable or not, the
defense is patently unmeritorious.
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
already been probated but was overruled. Petitioner moved to dismiss the
case claiming again that the will alleged to have been forged had already
been probated and, further, that the order probating the will is conclusive
as to the authenticity and due execution thereof. The motion was
overruled and the petitioner filed with the Court of Appeals a petition
for certiorari. Court of Appeals denied the petition for certiorari, and
dissolved the writ of preliminary injunction.
ISSUE/S:
Whether criminal action will lie against a forger of a will duly admitted
to probate
HELD:
The decree of probate is conclusive with respect to the due execution
thereof and it cannot be impugned on any of the grounds authorized by
law, except that of fraud, in any separate or independent action or
proceeding. The probate of a will by the probate court having jurisdiction
thereof is usually considered as conclusive as to its due execution and
validity, and is also conclusive that the testator was of sound and disposing
mind at the time when he executed the will, and was not acting under
duress, menace, fraud, or undue influence, and that the will is genuine and
not a forgery.
The will in question having been probated by a competent court, the
law will not admit any proof to overthrow the legal presumption that it is
genuine and not a forgery.
Q Does the probate court have jurisdiction to inquire into the
intrinsic validity of the will?
A In petitions for probate, the Courts area of inquiry is limited to the
extrinsic validity of the will as the testamentary capacity and compliance
with the formal requisites or solemnities prescribed by law are the only
questions presented for the resolution of the court. Any inquiry into the
intrinsic validity or efficacy of the provision thereof or the legality of any
devise or legacy is premature. (Sumilang vs. Ramagosa)
Q Is the probate court absolutely precluded from passing upon
the intrinsic validity of the will?
A NO. In the extreme case where the provisions of the will are of dubious
legality, the probate court can pass upon the intrinsic validity of the will;
otherwise, probate may become an idle ceremony. (Balanay vs.
Martinez)
Q Can the probate court pass upon questions of ownership with
respect to properties allegedly forming part of the estate?
A In a special proceeding for the probate of a will, the issue by and large
is restricted to the extrinsic validity of the will, whether the testator,
being of sound mind, freely executed the will in accordance with the
formalities prescribed by law. As a rule, the question of ownership is an
extraneous matter which the probate court cannot resolve with finality.
Thus, for the purpose of determining whether a certain property should
or should not be included in the inventory of estate properties, the
probate court may pass upon the title thereto, but such determination is
provisional, not conclusive and is subject to the final decision in a
separate action to resolve title. (Pastor, Jr. vs. CA)
Sec. 2. Custodian of will to deliver. - The person who has custody of
a will shall, within twenty (20) days after he knows of the death of the
testator, deliver the will to the court having jurisdiction, or to the
executor named in the will.
Q Who is a custodian?
A In order to hold one liable as custodian of a will under a rule which
requires the production of a will by the person having it in custody, it
must be shown that he received the will into his custody with
knowledge or under such circumstances that he ought to have known
that he was receiving custody of a will. By accepting the custody of the
will of another, a person does not obligate himself to exercise diligence
to discover the death of the testator, so as to disclose possession of the
will and to produce it for probate within a reasonable time after such
death, unless he agreed to perform such obligation or else made
representation that he was well equipped to obtain information as to
the death or the maker of the will in his custody.
27 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q Can probate proceedings be barred by Statue of Limitations or
estoppel by laches?
A Reason and precedent reject the applicability of the Statute of
Limitations to probate proceedings because the same are established
not exclusively in the interest of the heirs but primarily for the
protection of the testators expressed wishes; which are entitled to
respect as a consequence of his ownership and rights of disposition.
Inasmuch as the probate of will is required by public policy, the State
could not have intended to defeat the same by applying thereto the
Statute of Limitations.
(
Note:&Failure(to(attach(original(of(will(to(petition(not(critical(where(
will( itself( was( adduced( in( evidence.( It( is( not( necessary( to( attach(
original(will(to(petition(for(probate.(
Sec. 3. Executor to present will and accept or refuse trust. - A
person named as executor in a will shall, within twenty (20) days after
he knows of the death of the testator, or within twenty (20) days after
knows that he is named executor if he obtained such knowledge after
the death of the testator, present such will to the court having
jurisdiction, unless the will has reached the court in any other manner,
and shall, within such period, signify to the court in writing his
acceptance of the trust or his refusal to accept it.
Q What is the duty of the executor?
A When a will has been duly executed and delivered to the one named as
executor therein, a moral obligation in the nature of a _____ is imposed
upon such person. It is a moral duty because it is more of a personal
obligation.
Sec. 4. Custodian and executor subject to fine for neglect. - A
person who neglects any of the duties required in the two last preceding
sections without excuse satisfactory to the court shall be fined not
exceeding two thousand pesos.
Q When can the fine provided for in this section be imposed?
A The act penalized in this section is a special statutory offense which
must be prosecuted upon complaint or information as other criminal
offenses created by law (US vs. Guimco)
! In this regard, it is worthy to restate what has been previously
discussed. Mere possession of a will does not constitute custody of the
instrument within the meaning of these rules. In order to hold one
liable as custodian for failure to produce a will after the decedents
death, it must be at least shown that there was a baliment.
! Atty. Gesmundo: Sectiton 4 is a usurpation of judicial powers. It is not
within legislative powers to impose such sanctions.
THE UNITED STATES vs. CHIU GUIMCO, 36 PHIL 917 (1917)
FACTS:
The testator, Joaquin Cruz had for many years, resided in the
municipality of Gingoog, Province of Misamis, where he had lived as a
Chinese merchant and had amassed a considerable estate, worth possibly
forty or fifty thousand pesos. In 1898, Joaquin Cruz visited China and was
there married to a Chinese woman, Uy Cuan, and by her had one child. In
1902, after his return from China, he was married in Gingoog to a Filipina
woman named Maria Villafranca. In the early part of the year 1910,
Joaquin Cruz again visited China, leaving his brother, Chiu Guimco, the
accused, in charge of his property and business in Gingoog as agent or
attorney in fact (apoderado). While absent on this visit to China Joaquin
Cruz died. Before his departure from the Philippine Islands he had
executed a will before Anastacio Servillon, notary public, in which Chiu
Guimco and Co-Iden were named as executors. In August 1910, Chiu
Guimco and Co-Iden appeared before Anastacio Servillo; and at their
request the latter drew up a petition for the probate of the will. This
petition was signed by Co-Iden and the accused. The will itself was not
produced before the notary public upon this occasion, and he was not
informed by them as to who then had possession of the will. Nothing
further was done in the matter of the probate of the will and Co-Iden
subsequently died.
28 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
section, EXCEPT when acting in the exercise of its jurisdiction over the
estates of deceased persons.
! The remedy provided in Section 5 is different with that provided in
Section 4. accordingly, in the prosecution under Section 4, it is not
permissible to superimpose upon the penalty of fine therein prescribed
the additional penalty of imprisonment imposed by Section 5.
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
Sec. 1. Who may petition for the allowance of will. - Any executor,
devisee, or legatee named in a will, or any other person interested in the
estate, may, at any time after the death of the testator, petition the
court having jurisdiction to have the will allowed, whether the same be
in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition the court for
the allowance of his will.
Q Who may file a petition for the probate of the will?
A The following may file a petition for the probate of the will: (DELTA)
1. devisee
2. executor
3. legatee
4. testator himself during his lifetime.
5. any person interested in the estate (creditor)
It is immaterial, as far as practice is concerned, by whom a will is
presented for probate, the only restriction being that before any person
may intervene in the proceedings had for the probate of a will, he should
be required to show an interest in the will or the property affected thereby,
either as executor or otherwise. For such purpose, it is sufficient that he
shows or produces prima facie evidence of his/her relationship to the
testator or his rights to the latters estate.
It should be noted, however, that the allegation of interest in the
estate merely entitles one to intervene in the probate of the will. Such
claim of interest does not entitle him to his claim.
Q Who may intervene in the probate of the will?
A Section 1, Rule 76 enumerates the persons who can intervene in the
probate of the will. Essentially, they are the same persons who can file
for the petition for the probate of a will.
1. devisee
2. executor
3. legatee
4. testator himself during his lifetime.
5. any person interested in the estate
Q Who is an interested party?
A An interested party has been defined as one who would be benefited by
the estate of such an heir or one who has a claim against the estate like
a creditor. The interest acquired in order that a person may be a party
thereto must be material and direct and not merely indirect or
contingent. (Teotico vs. Del Val)
Teotico v. Del Val, 13 SCRA 406 (1965)
FACTS:
Decedent Maria Mortera y Balsalobre vda. de Aguirre executed a
will leaving a legacy to Dr. Rene Teotico, husband of her neice and
universal heir Josefina Mortera. Vicente Teotico, son of Rene and Josefina,
and herein petitioner, filed a petition for the probate of the will before the
CFi of Manila. Ana Del Val Chan, claiming to be an adopted child of one of
the decedents sisters and a natural child of one of her brothers filed and
opposition alleging that the will was not executed as required by law, the
testatrix was physically and mentally incapable to execute the will, and the
will was executed under duress. The probate court allowed the opposition,
who further alleged that the legacy to Dr. Teotico was void, him being the
physician who took care of the testatrix during her last illness.
29 |
ISSUE/S:
Whether the oppositor has the right to oppose as well as the
validity of the will.
HELD:
NO. It is a well settled rule that in order that a person may be
allowed to intervene in a probate proceeding he must have an interest in
the estate, or in the will, or in the property to be affected by it either as
executor or as a claimant of the estate. An interested party has been
defined as one who would be benefited by the estate such as an heir or
one who has a claim against the estate like a creditor. Under the terms
of the will, the oppositor has no right to intervene because she has no
interest in the estate either as heir, executor, administrator, nor does
she have any claim to any property affected by the will. Even if the will is
denied probate, Del Val will not acquire any share of the estate because
she is not a legal hair of the deceased. The relationship of the adopter is
limited between such adopter and adopted.
With regard to the validity of the will, the witnesses to the will all
attest that the testatrix was physically and mentally capable during the
execution of the will and that the will conformed with the requisites of
the law. Lastly, there is no proof that Dr. Rene Teotico and his spouse
exerted any pressure upon the testatrix in order for her to execute a will
leaving them a legacy and naming the spouse as the sole heir.
Q What is the effect of an assignment of interest in the estate
upon an heirs right to petition for probate of a will?
A The mere fact that the share, title and the interest of the estate
pertaining to one of the heirs have already been assigned to another
doesnt estop said heir from asking for the probate of a will of the
deceased testator.
Q When must a will be presented for probate?
A The will must be presented for probate
1. at anytime after the death of the testator
2. during the lifetime of the testator
! since there is no express limitation to probate a will, the probate of a
will is not subject to bar by any limitations
Q Can estoppel apply to probate proceedings?
A YES. Estoppel may find application in probate proceeding. A person
by his conduct may estop himself and his privies from
subsequently procuring the probate of a will. Long delay in
propounding the will for probate during which delay, the property of
the estate might have been transferred to subsequent purchasers for
value and without notice of the will may be taken as an estoppel to
apply for probate of the will. But to raise estoppel on the ground of
delay in propounding the will, it must be shown that not obstacle to
the assertion of the right to have the will probated existed.
Q Jong made a will naming Ricky as his voluntary heir. Can
Ricky, during Jongs lifetie, file a petition to have the will
probated?
A NO since the will is to be probated during the lifetime of the testator,
then it should be testator himself, who should file the petition for
probate.
Q Why is the testator allowed to have his will probated during
his lifetime?
A In general, probate of a will during the testators lifetime is allowed so
that:
1. fraud may be avoided;
2. the testamentary capacity of the testator is easily proved if he
personally appears before the probate court.
3. connection of defects in the formalities of the will is facilitated
4. opposition is minimized.
(
(
(
(
(
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Sec. 2. Contents of petition. - A petition for the allowance of a will
must show, so far as known to the petitioner:
(1) The jurisdictional facts;
(2) The names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent;
(3) The probable value and character of the property of the estate;
(4) The name of the person for whom letters are prayed;
(5) If the will has not been delivered to the court, the name of the
person having custody of it.
But no defect in the petition shall render void the allowance of the
will, or the issuance of letters testamentary or of administration with the
will annexed.
Q What must be stated in the petition for allowance of a will?
A A petition for the allowance of a will must state the following facts:
1. The jurisdictional facts;
2. The names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent;
3. The probable value and character of the property of the estate;
4. The name of the person for whom letters are prayed;
5. If the will has not been delivered to the court, the name of the
person having custody of it.
Q What are the jurisdictional facts necessary in order for the RTC
to acquire jurisdiction to probate a will?
A The RTC acquires jurisdiction to probate a will when the following
jurisdictional facts are alleged:
1. that a person died leaving a will
2. in the case of a resident, that at the time of his death, he was a
resident within the territorial jurisdiction of the court, or in the
case of a non- resident, that he left an estate within such
territorial jurisdiction (Fernando vs. Crisostomo)
3. that the will has been delivered to the court and is in the
possession thereof (Salazar vs. CFI)
4. the value of the estate so that the proper court with jurisdiction
(whether R/MTC) may be determined.
! The law is silent as to the specific manner of bringing the jurisdictional
allegations before the court. But practice and jurisprudence have
established that they should be made in the form of an application filed
with the original of the will attached thereto. But a mere copy of the will
to the application may be attached without prejudice to producing the
original thereof at the hearing or when the court so requires. This
precaution has been adopted by some attorneys to forestall its
disappearance, which has taken place in certain cases.
Fernando vs. Crisostomo, 90 SCRA 585 (1951)
FACTS:
This case involved 2 cases.
One: Guardianship of Rufino Crisostomo and his 4 minor children. In this
case, Hermogenes Fernando was appointed guardian of Rufino and his 4
minor children. When Rufino died, the children were left under the
guardianship of Hermogenes. He then filed for the approval of an
extrajudicial settlement of the estate of the deceased parents of the
minors which was denied by the court ruling that the guardian of the
children is not the administrator of the estate until and after the said
estate has been acquired by the minors by proper proceedings.
Two: Intestate estate of Sps. Crisostomo. German Crisostomo filed a
petition as next on kin for the opening of intestate proceedings of the
estate of the deceased and the appointment of himself and Pacita
Fernando as co-administrators which was granted by the court.
ISSUE/S:
Whether the courts appointment of Crisostomo and Fernando as
co-administrators is valid
HELD:
YES! No evidence is presented why the brother and sister of the
deceased, as nearest of kin, should not be appointed co-administrators of
30 |
Meaning&of&Due&Execution(
(1)( That( the( will( was( executed( strictly( in( accordance( with( the(
formalities(required(by(law(
(2)( That( the( testator( was( of( sound( and( disposing( mind( when( he(
executed(the(will(
(3)(That(there(was(no(vitiation(of(consent(through(duress,(fear,(or(
threats(
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
(4)( That( it( was( not( produced( by( undue( or( improper( pressure( or(
influence(on(the(part(of(the(beneficiary,(or(some(other(person(for(his(
benefit(
(5)( That( the( signature( of( the( testator( is( genuine,( i.( e.( it( was( not(
procured(through(fraud(and(that(the(testator(intended(that(what(he(
executed(was(his(last(will(and(testament.
Sec. 3. Court to appoint time for proving will. - Notice thereof to
be published. When a will is delivered to, or a petition for the allowance
of a will is filed in, the court having jurisdiction, such court shall fix a
time and place for proving the will when all concerned may appear to
contest the allowance thereof, and shall cause notice of such time and
place to be published three (3) weeks successively, previous to the time
appointed, in a newspaper of general circulation in the province.
But no newspaper publication shall be made where the petition for
probate has been filed by the testator himself.
Q When does jurisdiction become vested in the RTC over the
probate of a will?
A Jurisdiction vests in the RTC over the probate of a will in two instances:
1. upon the filing of a petition for the proving a will
2. upon the delivery of a will to the court even without such
petition
Q On December 20, 1992, X, the custodian of Ys will, delivered
said will to Branch 2 of Makati RTC. On December 22, 1992, he
filed a petition for probate of said will with Branch 3. Which of
the said courts acquired jurisdiction first?
A Branch 2. The jurisdiction of the RTC becomes vested upon the delivery
thereto of the will, even if no petition for its allowance was filed until
later because upon the will being deposited, the court could moto
proprio, have taken steps to fix the time and place for proving the will
and issue the corresponding notices. Where the petition for probate is
made after the deposit of the will, the petition is deemed to relate back
to the time when the will was delivered.
Q When jurisdiction vests in the RTC over the probate of a will,
what must the court do?
A It is the duty of the court moto proprio to appoint hearing for the wills
allowance and to cause notices thereof to be given by participation. The
duty imposed by Section 3 of Rule 76 is imperative. Noncompliance
wherewith would be mockery of the law and of the last will of the
testator. Consequently, a court can moto proprio set the time and place
for proving the will delivered to it.
Q What should the notice of publication contain?
A The notice of publication should contain the following:
1. time of hearing
2. place of hearing
3. order to persons who have interest in the will to appear and
show case why the petition should/ should not be granted
Q How does the court acquire jurisdiction over persons
interested in the probate of a will?
A The court acquires jurisdiction over all persons interested in the
settlement of the estate through the publication of the petition in the
newspapers.
Q Would the probate court lose its jurisdiction over the case if
the person who filed the petition for probate withdraws from
said case?
A NO. The withdrawal from the case of one who filed the petition for
probate does not affect the jurisdiction of the court over the
proceedings over all and other persons therein, for it is well established
principle that the proceeding for probate of a will is one in rem, and the
court acquires jurisdiction over all the persons interested in the estate
of a deceased person, whether he filed the petition for probate of a will.
Q Why must the court order be published?
31 |
Persons&to&be&Given&Notice:&
(1)(Designated(or(known(heirs,(legatees(and(devisees(
(2)(Executor(and(codexecutor(if(not(the(petitioner(
(
(
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Modes&of&Notification:(
(1)(If&by&MAIL:(20(days(before(hearing(
(2)(If&through&PERSONAL&SERVICE:(10(days(before(hearing(
(
Q Is service of notice to all interested parties necessary?
A The notice to be served upon heirs, legatees and devisees is
necessary only when they and their places of residence in the
Philippines are known. In other instances, such notice is not
necessary and the court may acquire and exercise jurisdiction simply
upon the publication of the notice in a newspaper of general circulation.
What is indisputable to the jurisdiction of the court is the publication of
the notice is a newspaper of general circulation. The notice on
individual heirs, legatees and devisees is merely a matter of procedural
convenience to better satisfy in some instances the requirements of due
process.
Q Who must be furnished notices?
A Under Section 4, Rule 76, the court cause copies of the notice of the
time and place fixed for proving the will to be addressed to the
designated or other known heirs, legatees, and devisees of the testator
who are residing in the Philippines.
! Be it noted that notice is required by this rule only if the residences of
the persons, above enumerated are known.
Q If the testator himself filed the petition for probate, should he
be given notice thereof?
A Not anymore. Paragraph 2, section 4, Rule 76 provides that if the
testator asks for the allowance of his will, notice shall be sent only to
his compulsory heirs.
Q Under the civil code, who are considered the compulsory heirs?
A Under article 887 of the New Civil Code, the following
1. legitimate children and descendants with respect to their
legitimate parents and ascendants
2. in default of the foregoing, legitimate parents and ascendants
with respect to their legitimate children and descendants
3. the widow or widower
4. acknowledged natural children and natural children by legal
fiction
5. other legitimate children
Q What about the executor, is he entitled to be given notice?
A It depends. If the executor is not the petitioner, he must have
notified of the petition for probate, otherwise, he need not be notified.
Q Is service of notice on the individual heirs a jurisdictional
matter?
A Service of notice on individual heirs or legatees or devisees is a matter
of procedural convenience, not a jurisdictional requisite. So much so
that even if the names of some legatees or heirs has been omitted from
the petition for allowance of the will, and therefore were not advised,
the decree allowing the will does not ipso facto become void for want of
jurisdiction. What is indispensable to the jurisdiction of the court is the
publication of the notice in a newspaper of general circulation.
Q What is the mode of service and how do you prove that such
notice has been sent to the parties concerned?
A Notice must be sent by registered mail or by personal service. The
return card would serve as proof of service of notice by registered mail;
while if the notice was sent through personal service, the receipt as
signed by the person, who received such, will serve as proof of service
thereof
Q How would you show this to the court?
A When the court asks you to establish jurisdictional facts, you stand up
and say Your Honor, we would like to mark the following as exhibits:
1. order of notice
2. affidavit of publication
3. actual copies of the newspapers where notice was published
4. registry return card/ sheriffs return;
5. death certificate;
32 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
competent witness, and if the court deem it necessary, an expert
testimony may be resorted to.(
(
At(the(hearing,(compliance(of(publication(and(notice(must(first(be(
shown(before(introduction(of(testimony(in(support(of(the(will.(
(
Evidence&Required&in&Support&of&a&Will&
(1)(Uncontested&Will((Sec.!5)(
(a)(Notarial&Wills((Testimony(of(at(least(one(of(the(subscribing(
witnesses(may(be(allowed,(if(such(witness(testifies(that(the(will(
was(executed(as(required(by(law.(
(i)(If(all(subscribing(witnesses(reside(outside(the(province((
deposition(is(allowed((sec.!7)(
(ii)(If(the(subscribing(witnesses(are(dead,(insane(or(none(of(
them( resides( in( the( Philippines( ( The( court( may( admit(
testimony( of( other( witnesses( to( prove( the( sanity( of( the(
testator,(and(the(due(execution(of(the(will,(and(as(evidence(
of( the( execution( o( the( will,( it( may( admit( proof( of( the(
handwriting( of( the( testator( and( of( the( subscribing(
witnesses(or(of(any(of(them.((Sec.!8)(
(b)( Holographic& Wills( d( ( the( testimony( of( one( witness( who(
knows( the( handwriting( and( signature( of( the( testator.( In( the(
absence( thereof( and( if( the( court( deem( it( necessary,( expert(
testimony(may(be(resorted(to.(
(
(2)(Contested&Wills((Sec.!11)(
(a)( Notarial& Wills( ( ALL( subscribing( witnesses( AND( the( notary(
public( before( whom( the( will( was( acknowledged( must( be(
produced(and(examined.(
(
HOWEVER,(if(any(or(all(the(witnesses(
(i)(testify(against(the(execution(of(the(will,(
(ii)(do(not(remember(attesting(thereto,(
(iii)(are(of(doubtful(credibility,(
the( will( may! be! allowed( if( the( court( is( satisfied( from( the(
testimony( of( other( witnesses( and( from( all( the( evidence(
presented( that( the( will( was( executed( and( attested( in( the(
manner( required( by( law.( (An! instance! where! a! party! may!
impeach!his!own!witness)(
(
(b)( Holographic& Wills( ( 3( witnesses( who( know( he( handwriting(
of( testator.( In( the( absence( thereof( and( if( the( court( deem( it(
necessary,(testimony(of(an(expert(witness(may(be(resorted(to,(
(
Sec. 6. Proof of lost or destroyed will. - Certificate thereupon. No
will shall be proved as a lost or destroyed will unless the execution and
validity of the same be established, and the will is proved to have been
in existence at the time of death of the testator, or is shown to have
been fraudulently or accidentally destroyed in the lifetime of the testator
without his knowledge, nor unless its provisions are clearly and distinctly
proved by at least two (2) credible witnesses. When a lost will is proved,
the provisions thereof must be distinctly stated and certified by the
judge, under the seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.
Q What facts must be proved in order that a lost or destroyed
notarial will may be allowed?
A The following facts must be proved:
1. that the will has been duly executed by the testator (due
execution)
2. that the will was in existence when the testator dies or if it was
not, that it has been fraudulently or accidentally destroyed in the
lifetime of the testator, without his knowledge (loss or
33 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
ISSUE/S:
Whether secondary parol evidence is sufficient to prove Rosarios will?
HELD:
NO. The loss of the alleged original will has not been sufficiently
established. The principal witness, Calixto Delgado testified that he had
acted as procurador for Gregoria in an action brought against her by one
Jose involving the hacienda of Pangpang, and that as such there came into
his possession a copy of the will of Rosario which was introduced in
evidence in that action. However, he likewise testified that he never saw
the original of that will because the same was retained by the notary. He
likewise failed to affirm whether the copy in question was a simple or
certified copy. More importantly, he further testified that the will was
signed by two witnesses only. A will signed by two witnesses only could
not under any circumstances be valid under the law in force at the time
referred to by the witness, and legally speaking such will could not then
have been probated or recorded.
As to the loss of the will, there is nothing to show that at the time
these records were burned by the insurgents there existed in the courthouse of Pototan the copy of the will referred to. Moreover, the testimony
that all the notarial records were likewise burned as they were kept in the
same courthouse is inconclusive as the same is plainly and manifested
contrary to the royal decree concerning the organization of notaries, which
provided that: Notaries shall keep the protocols and books in the same
building where they live, in their custody, and shall be responsible
therefor.
Their testimony is absolutely insufficient to establish in a satisfactory
manner the loss of the alleged will of Rosario Darwin, and the court below
should not have, therefore, allowed the secondary evidence introduced by
her as to the contents of the will, particularly in view of the fact that, as it
appears from the record, there had been pending since 1889 an action to
declare this very will null and void.
LIM BILLLIAN vs. SUNTAY, 63 PHIL 793 (1936)
FACTS:
Jose B. Suntay died in the City of Amoy, China. He married twice, the
first time to Manuela T. Cruz with whom he had several children now
residing in the Philippines, and the second time to Maria Natividad Lim
Billian with whom he had a son.
Apolonio Suntay, eldest son of the deceased by his first marriage,
filed the latter's intestate in the Court of First Instance of Manila. In the
same court, Maria Natividad Lim Billian also instituted the present
proceedings for the probate of a will allegedly left by the deceased.
According to Maria, before the deceased died in China he left with her
a sealed envelope (Exhibit A) containing his will and, also another
document (Exhibit B of the petitioner) said to be a true copy of the original
contained in the envelope. The will in the envelope was executed in the
Philippines, with Messrs. Go Toh, Alberto Barretto and Manuel Lopez as
attesting witnesses. Go Toh, as attorney-in-fact of the petitioner, arrived in
the Philippines with the will in the envelope and its copy Exhibit B. While
Go Toh was showing this envelope to Apolonio Suntay and Angel Suntay,
children by first marriage of the deceased, they snatched and opened it
and, after getting its contents and throwing away the envelope, they fled.
Upon these allegations, Maria asks in this case that the brothers
Apolonio, Angel, Manuel and Jose Suntay, children by the first marriage of
the deceased, who allegedly have the document contained in the envelope
which is the will of the deceased, be ordered to present it in court, that a
day be set for the reception of evidence on the will, and that the petitioner
be appointed executrix pursuant to the designation made by the deceased
in the will.
In answer to the court's order to present the alleged will, the brothers
Apolonio. Angel, Manuel and Jose Suntay, stated that they did not have
the said will and denied having snatched it from Go Toh.
ISSUE/S:
Whether Exhibit B accompanying the petition is an authentic copy and
whether it has been executed with all the essential and necessary
formalities required by law for its probate.
34 |
HELD:
YES. The evidence is sufficient to establish the loss of the document
contained in the envelope. Oppositors' answer admits that, according to
Barretto he prepared a will of the deceased to which he later became a
witness together with Go Toh and Manuel Lopez, and that this will was
placed in an envelope which was signed by the deceased and by the
instrumental witnesses. In court there was presented and attached to
the case an open and empty envelope signed by Jose B. Suntay, Alberto
Barretto, Go Toh and Manuel Lopez. It is thus undeniable that this
envelope Exhibit A is the same one that contained the will executed by
the deceased drafted by Barretto and with the latter, Go Toh and
Manuel Lopez as attesting witnesses. These tokens sufficiently point to
the loss of the will of the deceased, a circumstance justifying the
presentation of secondary evidence of its contents and of whether it was
executed with all the essential and necessary legal formalities.
The trial of this case was limited to the proof of loss of the will, and
from what has taken place we deduce that it was not petitioner's
intention to raise, upon the evidence adduced by her, the other points
involved herein, namely, as we have heretofore indicated, whether
Exhibit B is a true copy of the will and whether the latter was executed
with all the formalities required by law for its probate. The testimony of
Alberto Barretto bears importantly in this connection.
Q Could a lost holographic will be probated?
A NO. Oral and/or secondary evidence cannot be introduced to prove
the existence and contents of a lost holographic will because the
authenticity of the signatures cannot be proved by oral testimony
! Note that the SC in the Rodelas case did not rule definitely on this
matter. The SC merely used the word may. Further, Atty.
Gesmundos opinion is on accord with Atty. Sebastians that a lost
holographic will cannot be admitted nor proved in probate.
! When it comes to lost wills, only a lost notarial will can be probated,
not a lost holographic will.
Q What is the effect of a lost will said to be seen last in the
possession of the testator?
A Where a will which cannot be found is shown to have been in the
possession of the testator, when last seen, the presumption is in the
absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the
testator has already access to the will and it cannot be found after his
death. It will not be presumed that such will has been destroyed by
any other person without the knowledge or authority of the testator.
(Gago vs. Mamuyac)
Q Who has the burden of proof?
A In a proceeding to probate a will, the burden of proof is upon the
proponent clearly to establish not only its execution but also its
existence. Having proved its execution by the proponents, the burden
is on the contestant to show that it has been revoked. (Gago vs.
Mamuyac)
Q What is the court supposed to do after the due execution and
contents of a lost will had been proved?
A Section 6, Rule 76 provides: When a lost will is proved, the
provisions thereof must be definitely stated and certified by the judge
under the seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.
Sec. 7. Proof when witnesses do not reside in province. - If it
appears at the time fixed for the hearing that none of the subscribing
witnesses resides in the province, but that the deposition of one or more
of them can be taken elsewhere, the court may, on motion, direct it to
be taken, and may authorize a photographic copy of the will to be made
and to be presented to the witness on his examination, who may be
asked the same questions with respect to it, and to the handwriting of
the testator and others, as would be pertinent and competent if the
original will were present.
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q What may the court do where it appears that none of the
witnesses to the will resides in the province where the hearing
is to be held?
A Where it appears that none of the witnesses to the will resides in the
province where the hearing is to be held, the taking of the deposition of
one or more of them may be directed by the court at the time fixed for
the hearing.
Q In such a case, how may the will be proved?
A A photographic copy of the will, upon authority of the court, may be
presented to the witnesses on his examination, the deponents may be
asked the same questions with respect to the will, and the handwriting
of the testator and others, as would be pertinent and competent if the
original will were present.
Q What is the nature of the will in Section 7?
A Section 7 applies only to notarial wills.
Q At what distance from the jurisdiction of the probate court
must the witness be, for the court to take his deposition?
A The witness must be at least 50 kilometers away from the territorial
jurisdiction of the court for it to order the taking of his deposition.
Q How will the deposition be taken?
A A copy of the will shall be sent along with questions drafted by both
parties and the witnesses shall be examined regarding the will as if he
had testified in court.
Sec. 8. Proof when witnesses dead or insane or do not reside in
the Philippines. - If it appears at the time fixed for the hearing that
the subscribing witnesses are dead or insane, or that none of them
resides in the Philippines, the court may admit the testimony of other
witnesses to prove the sanity of the testator, and the due execution of
the will; and as evidence of the execution of the will, it may admit proof
of the handwriting of the testator and of the subscribing witnesses, or of
any of them.
Q What if all the subscribing witnesses are dead, incompetent or
unavailable?
A It will not prevent the establishment of the due execution and
attestation of the will as long as its essentials are proved. After all, a
will may generally be admitted to probate upon other legal and
satisfactory proof, unless the law provides that depositions must be
taken. The signature and the handwriting of the testator and the
witnesses must be proved.
Q What if the proponent cannot present all the subscribing
witnesses?
A The proponent cannot establish prima facie case as long as proof of the
authenticity of the signature of the subscribing witness can be duly
proved. There would be a stronger case if the due execution can be
sufficiently established by the remaining witnesses and substantiated by
the notary public who prepared and notarized the will. The bottom line
is that if the testimony of any of the surviving subscribing witnesses can
no longer be taken even through the taking of depositions, proof of the
will by non- subscribing witnesses cannot be authorized.
Sec. 9. Grounds for disallowing will. - The will shall be disallowed in
any of the following cases:
(1) If not executed and attested as required by law;
(2) If the testator was insane, or otherwise mentally incapable to make
a will, at the time of its execution;
(3) If it was executed under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence,
on the part of the beneficiary, or of some other person for his
benefit;
(5) If the signature of the testator was procured by fraud or trick, and
he did not intend that the instrument should be his will at the time
of fixing his signature thereto.
35 |
RELATED&CIVIL&CODE&PROVISIONS:&
Art.& 787.( The( testator( may( not( make( a( testamentary(
disposition(in(such(manner(that(another(person(has(to(determine(
whether(or(not(it(is(to(be(operative.((n)(
Art.& 788.( If( a( testamentary( disposition( admits( of( different(
interpretations,(in(case(of(doubt,(that(interpretation(by(which(the(
disposition(is(to(be(operative(shall(be(preferred.((n)(
Art.&791.(The(words(of(a(will(are(to(receive(an(interpretation(
which( will( give( to( every( expression( some( effect,( rather( than( one(
which( will( render( any( of( the( expressions( inoperative;( and( of( two(
modes( of( interpreting( a( will,( that( is( to( be( preferred( which( will(
prevent(intestacy.((n)(
Art.&795.(The(validity(of(a(will(as(to(its(form(depends(upon(the(
observance(of(the(law(in(force(at(the(time(it(is(made.((n)((
Art.&796.(All(persons(who(are(not(expressly(prohibited(by(law(
may(make(a(will.((662)(
Art.& 797.( Persons( of( either( sex( under( eighteen( years( of( age(
cannot(make(a(will.((n)(
Art.&798.(In(order(to(make(a(will(it(is(essential(that(the(testator(
be(of(sound(mind(at(the(time(of(its(execution.((n)(
Art.& 802.( A( married( woman( may( make( a( will( without( the(
consent(of(her(husband,(and(without(the(authority(of(the(court.((n)(
&Art.& 804.( Every( will( must( be( in( writing( and( executed( in( a(
language(or(dialect(known(to(the(testator.((n)(
Art.& 805.( Every( will,( other( than( a( holographic( will,( must( be(
subscribed( at( the( end( thereof( by( the( testator( himself( or( by( the(
testator's(name(written(by(some(other(person(in(his(presence,(and(
by( his( express( direction,( and( attested( and( subscribed( by( three( or(
more(credible(witnesses(in(the(presence(of(the(testator(and(of(one(
another.(
The(testator(or(the(person(requested(by(him(to(write(his(name(
and( the( instrumental( witnesses( of( the( will,( shall( also( sign,( as(
aforesaid,(each(and(every(page(thereof,(except(the(last,(on(the(left(
margin,(and(all(the(pages(shall(be(numbered(correlatively(in(letters(
placed(on(the(upper(part(of(each(page.(
The( attestation( shall( state( the( number( of( pages( used( upon(
which(the(will(is(written,(and(the(fact(that(the(testator(signed(the(
will(and(every(page(thereof,(or(caused(some(other(person(to(write(
his( name,( under( his( express( direction,( in( the( presence( of( the(
instrumental( witnesses,( and( that( the( latter( witnessed( and( signed(
the( will( and( all( the( pages( thereof( in( the( presence( of( the( testator(
and(of(one(another.(
If( the( attestation( clause( is( in( a( language( not( known( to( the(
witnesses,(it(shall(be(interpreted(to(them.((n)(
Art.& 806.( Every( will( must( be( acknowledged( before( a( notary(
public( by( the( testator( and( the( witnesses.( The( notary( public( shall(
not(be(required(to(retain(a(copy(of(the(will,(or(file(another(with(the(
Office(of(the(Clerk(of(Court.((n)(
Art.& 807.( If( the( testator( be( deaf,( or( a( deafdmute,( he( must(
personally( read( the( will,( if( able( to( do( so;( otherwise,( he( shall(
designate(two(persons(to(read(it(and(communicate(to(him,(in(some(
practicable(manner,(the(contents(thereof.((n)(
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Art.& 808.( If( the( testator( is( blind,( the( will( shall( be( read( to( him(
twice;(once,(by(one(of(the(subscribing(witnesses,(and(again,(by(the(
notary(public(before(whom(the(will(is(acknowledged.((n)(
Art.&809.(In(the(absence(of(bad(faith,(forgery,(or(fraud,(or(undue(
and( improper( pressure( and( influence,( defects( and( imperfections( in(
the( form( of( attestation( or( in( the( language( used( therein( shall( not(
render(the(will(invalid(if(it(is(proved(that(the(will(was(in(fact(executed(
and(attested(in(substantial(compliance(with(all(the(requirements(of(
Article(805.((n)(
Art.&810.(A(person(may(execute(a(holographic(will(which(must(be(
entirely( written,( dated,( and( signed( by( the( hand( of( the( testator(
himself.(It(is(subject(to(no(other(form,(and(may(be(made(in(or(out(of(
the(Philippines,(and(need(not(be(witnessed.((678,(688a)(
Art.&811.(In(the(probate(of(a(holographic(will,(it(shall(be(necessary(
that(at(least(one(witness(who(knows(the(handwriting(and(signature(
of(the(testator(explicitly(declare(that(the(will(and(the(signature(are(in(
the(handwriting(of(the(testator.(If(the(will(is(contested,(at(least(three(
of(such(witnesses(shall(be(required.(
In( the( absence( of( any( competent( witness( referred( to( in( the(
preceding( paragraph,( and( if( the( court( deem( it( necessary,( expert(
testimony(may(be(resorted(to.((619a)(
Art.& 812.& In( holographic( wills,( the( dispositions( of( the( testator(
written( below( his( signature( must( be( dated( and( signed( by( him( in(
order(to(make(them(valid(as(testamentary(dispositions.((n)(
Art.& 813.( When( a( number( of( dispositions( appearing( in( a(
holographic( will( are( signed( without( being( dated,( and( the( last(
disposition( has( a( signature( and( a( date,( such( date( validates( the(
dispositions( preceding( it,( whatever( be( the( time( of( prior(
dispositions.((n)(
Art.& 814.( In( case( of( any( insertion,( cancellation,( erasure( or(
alteration( in( a( holographic( will,( the( testator( must( authenticate( the(
same(by(his(full(signature.((n)(
Art.&815.(When(a(Filipino(is(in(a(foreign(country,(he(is(authorized(
to( make( a( will( in( any( of( the( forms( established( by( the( law( of( the(
country( in( which( he( may( be.( Such( will( may( be( probated( in( the(
Philippines.((n)(
Art.&816.(The(will(of(an(alien(who(is(abroad(produces(effect(in(the(
Philippines(if(made(with(the(formalities(prescribed(by(the(law(of(the(
place(in(which(he(resides,(or(according(to(the(formalities(observed(in(
his( country,( or( in( conformity( with( those( which( this( Code(
prescribes.((n)(
Art.&817.(A(will(made(in(the(Philippines(by(a(citizen(or(subject(of(
another( country,( which( is( executed( in( accordance( with( the( law( of(
the(country(of(which(he(is(a(citizen(or(subject,(and(which(might(be(
proved( and( allowed( by( the( law( of( his( own( country,( shall( have( the(
same( effect( as( if( executed( according( to( the( laws( of( the(
Philippines.((n)(
Art.& 818.( Two( or( more( persons( cannot( make( a( will( jointly,( or( in(
the( same( instrument,( either( for( their( reciprocal( benefit( or( for( the(
benefit(of(a(third(person.((669)(
Art.& 819.( Wills,( prohibited( by( the( preceding( article,( executed( by(
Filipinos( in( a( foreign( country( shall( not( be( valid( in( the( Philippines,(
36 |
even( though( authorized( by( the( laws( of( the( country( where( they(
may(have(been(executed.(733a)((
Q What is testamentary capacity?
A Testamentary capacity is the capacity to comprehend the nature of
the transaction in which the testator is engaged at the time to
recollect the property to be disposed of and the persons who would
naturally be supposed to have claims upon the testator and to
comprehend the manner in which the instrument will distribute his
property among the objects of his bounty. To constitute a sound mind
and disposing memory, it is not necessary that the mind shall be
wholly broken, unimpaired or unshattered by disease or otherwise or
that the testator be in possession of all his reasoning faculties.
(Torres et al. vs. Lopez)
Q Is failure of memory or old age or eccentricities sufficient to
indicate lack of testamentary capacity or unsoundness of
mind?
A Neither old age, physical infirmities, feebleness of mind, weakness of
memory, nor eccentricities are sufficient singly or jointly to show lack
of testamentary capacity or unsoundness of mind if at the time of the
execution of the will, he still possesses that degree of reason and of
life and that strength of mind to form fixed intention. The question is
not so much what was the degree of memory possessed by the
testator, as he had the disposing memory? (Torres et al. vs. Lopez)
! The evidence of those present at the execution of the will and of the
attending physician may also be relied upon and generally between
the testimony of witnesses who were present at the execution of the
will and who had opportunity to personally observe the mental
condition of the testator and the testimony of expert witnesses whose
opinion is merely speculative, not being founded on facts which they
have observed in person, the former would be preferred.
Q What if a guardian is named for the testator alleged to be
incapacitated?
A When a guardian is named for the testator alleged to be
incapacitated, a presumption of his mental infirmity is created.
However, the appointment of such guardian is not conclusive with
respect to the mental condition of a ward. The presumption of mental
infirmity may still be overcome by evidence showing that the testator,
at the time he executed his will, was in fact, of sound and disposing
memory(Torres et al. vs. Lopez)
Q What is undue influence?
A Undue influence is that which compels the testator to do that which
is against his will, from fear the desire of peace or from other feeling
which he is unable to resist. (Torres et al. vs. Lopez)
Q If someone wants to oppose probate, what must he do?
A He should file an opposition in court, which would state his
objections and he should also send a copy to the proponent.
Q What happens if the will is contested?
A All subscribing witnesses, if present in the Philippines, should testify.
If anyone of them should be outside of the jurisdiction of the court,
then his deposition should be taken.
Q What if one of the witnesses opposes probate?
A The court may still allow probate if there are other evidence (i.e.
other witnesses, secondary evidence)
Q Is the proponent bound to present all the witnesses?
A YES especially when the will is contested. If the proponent presents
only one witness, while the opposition presents the other two, and
the proponent himself does not oppose, then it would clearly weaken
the cause of the proponent.
Substantial& Compliance& Rule( ( If( the( will( has( been( executed( in(
substantial( compliance( with( the( formalities( of( the( law,( and( the(
possibility( of( bad( faith( and( fraud( is( obviated,( said( will( should( be(
admitted(to(probate.(
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
(
Separate& Wills& which( contain( essentially( the( same( provision( and(
pertain( to( properties( which( in( all( probability( are( conjugal( in(
nature,(practical(considerations(dictate(their(joint(probate.(
(
Sec. 10. Contestant to file grounds of contest. - Anyone appearing
to contest the will must state in writing his grounds for opposing its
allowance, and serve a copy thereof on the petitioner and other parties
interested in the estate.
Contestant&Must:&
(1)(State(in(writing(his(grounds(for(opposing(the(allowance(of(the(
will;(and(
(2)(Serve(a(copy(thereof(to(petitioner(and(other(interested(parties.(
Sec. 11. Subscribing witnesses produced or accounted for where
will contested. - If the will is contested, all the subscribing witnesses,
and the notary in the case of wills executed under the Civil Code of the
Philippines, if present in the Philippines and not insane, must be
produced and examined, and the death, absence, or insanity of any of
them must be satisfactory shown to the court. If all or some of such
witnesses are present in the Philippines but outside the province where
the will has been filed, their deposition must be taken. If any or all of
them testify against the due execution of the will, or do not remember
having attested to it, or are otherwise of doubtful credibility, the will
may, nevertheless, be allowed if the court is satisfied from the testimony
of other witnesses and from all the evidence presented that the will was
executed and attested in the manner required by law.
If a holographic will is contested, the same shall be allowed if at
least three (3) witnesses who know the handwriting of the testator
explicitly declare that the will and the signature are in the handwriting of
the testator; in the absence of any competent witness, and if the court
deem it necessary, expert testimony may be resorted to.
Q In case the will is contested, must all the attesting witnesses
be produced and examined before the court?
A It is true that the rule prevailing in this jurisdiction is that when a will is
contested, the attesting witnesses must be called to prove the will or a
showing must be made that they cannot be had, but that does not
necessarily mean that they must be brought bodily before the court. It
is their testimony, which is needed, and not their actual personal
presence in the courtroom. Hence, when an attesting witness to a will
resides outside the province where the will is offered for probate and 30
miles (50km) or more from the place where the probate proceedings
are held, his testimony may be taken in the form of a deposition and a
photographic copy of the will may be presented to the witnesses on
their examination and that they may be asked the same questions with
respect to it as if it were the original will. (Aldanese vs. Salutillo)
No will can be proved unless all subscribing witnesses, alive and
within the control of the process of the court are produced to testify.
(Cabang vs. Delfinado)
When the petition for probate of a will is contested, the proponent
should introduce all three of the attesting witnesses, if alive and within
the reach of the process of the court; and the execution of the will
cannot be considered sufficiently proved by the testimony of only one,
without the satisfactory explanation of the failure to produce the other
two. Nevertheless, an objection to the probate of the will on such
ground cannot be made for the first time on appeal. (Avera vs. Garcia)
Note:( When( the( authenticity( of( the( will( is( not( being( questioned,(
there( is( no( necessity( of( presenting( the( three( witnesses( required(
under(Article(811(of(the(Civil(Code.(
Sec. 12. Proof where testator petitions for allowance of
holographic will. - Where the testator himself petitions for the probate
of his holographic will and no contest in filed, the fact that he affirms
that the holographic will and the signature are in his own handwriting,
shall be sufficient evidence of the genuineness and due execution
thereof. If the holographic will is contested, the burden of disproving the
37 |
It( is( a( requirement( that( a( will( that( was( probated( in( a( foreign(
country(be(redprobated(in(the(Philippines.(If(the(decedent(owns(
properties(in(different(countries,(separate(proceedings(must(be(
had(to(cover(the(same.(
(
Sec. 2. Notice of hearing for allowance. - When a copy of such
will and of the order or decree of the allowance thereof, both duly
authenticated, are filed with a petition for allowance in the Philippines,
by the executor or other person interested, in the court having
jurisdiction, such court shall fix a time and place for the hearing, and
cause notice thereof to be given as in case of an original will presented
for allowance.
(
What&should&be&Filed&
Petition(for(allowance(accompanied(with:(
(1)(Authenticated(copy(if(the(will(
(2)(Authenticated(decree(of(the(allowance(thereof.(
The( court( will( then( fix( a( time( and( place( for( hearing( and( cause(
notice(thereof(to(be(given.(
(
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Sec. 3. When will allowed, and effect thereof. - If it appears at
the hearing that the will should be allowed in the Philippines, the court
shall so allow it, and a certificate of its allowance, signed by the judge,
and attested by the seal of the court, to which shall be attached a
copy of the will, shall be filed and recorded by the clerk, and the will
shall have the same effect as if originally proved and allowed in such
court.
Q
A
The( necessity( of( presenting( evidence( on( the( foreign( laws( upon(
which( the( probate( in( the( foreign( country( is( based( is( impelled( by(
the(fact(that(our(courts(cannot(take(judicial(notice(of(them.(
In(the(absence(of(proof(of(the(foreign(law,(it(is(presumed(that(it(is(
the(same(as(that(in(the(Philippines.(
SUNTAY v. SUNTAY, 95 PHIL. 500 (1954)
FACTS:
Jose Suntay (a Filipino citizen and resident of RP) died in China,
leaving real and personal properties in the Philippines and a house in
China. He left 9 children in the first marriage and a child named Silvino in
the second marriage with Maria Natividad who survived him. Intestate
proceeding was held in the CFI of Bulacan and Federico (son from the 1st
marriage) was named administrator. Afterwards, the surviving widow filed
a petition in the court for the probate of a last will and testament claimed
to have been executed and assigned in the RP in November 1929. Jose
also executed a will in China in January 1931. This petition was denied
because of the loss of the RP will and the insufficiency of the evidence to
establish the loss. An appeal was taken and the SC held the evidence
before the probate court sufficient to prove the loss of the will and
remanded the case to the CFI of Bulacan for further proceedings.
In the meantime, the Pacific War supervened. After liberation,
Silvino filed a petition in the intestate proceedings for the probate of the
will executed in China in January 1931.
ISSUE:
Whether the China Will may be probated.
HELD:
NO. The China will may be probated if the following requisites are
established:
1. The fact that the foreign tribunal is a probate court. In the
absence of proof that the municipal district court of Amoy, China is
a probate court and on the Chinese law of procedure in probate
matters, it may be presumed that the proceedings in the manner
of probate or allowing a will in the Chinese courts are the same as
those provided in our laws. It is a proceeding in rem and for the
validity of such proceedings, personal notice or by publication, or
both to all interested parties must be made
2. The laws of a foreign country on procedure and allowance of wills.
Where it appears that the proceedings in the court of a foreign
country were held for the purpose of taking the testimony of 2
attesting witnesses to the will and the order for the probate court
did not purport to allow the will, the proceedings cannot be
deemed to be for the probate of a will, as it was not done in
accordance with the basic and fundamental concepts and
principles followed in the probate and allowance of wills.
38 |
Effects&of&the&Allowance&of&a&Will&Under&Rule&77:(
(1)( The( will( shall( be( treated( as( if( originally( proved( and( allowed( in(
Philippine(Courts(
(2)( Letters( Testamentary( or( administration( with( a( will( annexed(
shall(extend(to(all(estates(in(the(Philippines.(
(3)( After( payment( of( just( debts( and( expenses( of( administration,(
the(residue(of(the(estate(shall(be(disposed(of(as(provided(by(law(in(
cases( of( estates( in( the( Philippines( belonging( to( persons( who( are(
inhabitants(of(another(state(or(country.(
&
Note:(Venue(for(the(petition(for(redprobate(is(the(same(as(that(
provided(for(in(Rule(73.(
(
Sec. 4. Estate, how administered. - When a will is thus allowed,
the court shall grant letters testamentary, or letters of administration
with the will annexed, and such letters testamentary or of
administration, shall extend to all the estate of the testator in the
Philippines. Such estate, after the payment of just debts and expenses
of administration, shall be disposed of according to such will, so far as
such will may operate upon it; and the residue, if any, shall be
disposed of as is provided by law in cases of estates in the Philippines
belonging to persons who are inhabitants of another state or country.
Q
A
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
The estate was settled and the proceedings closed. Mercedes
began receiving her monthly allowance. With the probable intent of getting
hold of the entire sum of the annuity, Mercedes sought to have the will
probated in the CFI of Manila. She also secured the appointment of Ghezzi
as administratrix with a will annexed. Ghezzi filed a motion praying for the
citation of the manager of the MLA branch of Manufacturers to appear and
render a full accounting of certain funds which was allegedly in its
possession and claimed it belonged to the estate. The CFI judge denied
said motion contending that the funds came into the possession of the
company in due course and therefore sees no justifiable reason why an
accounting has to be made.
ISSUE/S:
Whether the administratrix is entitled to an accounting of the
annuity
HELD:
NO. Administration only extends to the assets of the decedent
found within the state or country where it is granted so that Ghezzi has no
power over the assets of Butler located outside the country. The original
administrator of the estate had invested in an annuity in Canada, under a
contract executed in that country. Hence, Canada is the situs of the
money.
When a person dies intestate owning property in the country of his
domicile as well as in a foreign country, administration shall be had in
both countries. That which is granted in the jurisdiction of the
decedents domicile is termed principal administration, while any
other administration is termed ancillary administration.
RULE 78
Letters of Testamentary and of Administration
When and To Whom Issued
Sec. 1. Who are incompetent to serve as executors or
administrators. - No person is competent to serve as executor or
administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the
trust by reason of drunkenness, improvidence, or want of
understanding or integrity, or by reason of conviction of an
offense involving moral turpitude.
Q
A
Executor
Nominated by the testator and
appointed by court
Who&Can&Administer&the&Estate:&
(a)(Executor(
(b)(Administrator(
(c)(Administrator(with(a(will(annexed(
(
Q
A
What is an executor?
An executor is a person nominated by a testator in his will to carry out
his direction and request thereof and to dispose of the property
according to his testamentary provisions after his death. If the person
named is a woman, she is properly called an executrix.
39 |
What is an administrator?
An administrator is a person appointed by the court of probate to
administer and settle intestate estates and such testate estates where
no executor is named in the will, or the executor/s is/are incompetent,
refuse the trust, or fail to give bond.
If the person appointed by the court is a woman, then she is
properly called an administratrix
Strictly speaking, when there is a will but no competent executor
was designated by the testator (or otherwise failed to qualify) or
the person designated although qualified is unwilling to serve
then the person appointed by the court is properly called
administrator with a will annexed. An administrator is the
person appointed in case there is no will.
Administrator
Appointed by the court in case the
testator did not appoint an
executor or if the executor refused
appointment (administrator with a
will annexed) or if the will was
disallowed or if a person did not
make a will (intestate succession)
No such duty.
Q
A
Q
A
Any(COMPETENT(person(may(serve(as(executor(or(administrator.(
(
Q
A
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
(b) improvidence;
(c) want of understanding;
(d) want of integrity;
(e) conviction of an offense involving moral turpitude
4. The executor of an executor cannot administer the estate of the
first testator (Beda)
Q
A
Q
A
Q
A
The(want(of(care(and(foresight(in(the(management(of(property(which(
would( be( likely( to( render( the( estate( and( effects( of( the( intestate(
unsafe,( and( liable( to( be( lost( or( diminished( in( value,( in( case( the(
administration(should(be(committed(to(the(improvident(person.(
Q
A
Q
A
(Want(of(understanding(is(a(disqualification(where(it(amounts(to(lack(
of(intelligence,(and(although(it(has(been(held(that(weakness(of(mind(
not(amounting(to(want(of(understanding(will(not(disbar(one(from(his(
right(to(administer(there(is(also(authority(for(the(view(that(weakness(
of( mind( as( well,( such( as( would( or( might( subject( one( to( sinister(
influence( or( coercion( against( the( general( interest( of( the( estate( will(
constitute(a(sufficient(objection.
FACTS:
ISSUE/S:
Whether administrators or guardians must be residents of the
Philippines to be qualified for appointment as such?
Q
A
The(drunkenness(contemplated(by(this(statute,(undoubtedly,(is(that(
excessive,( inveterate( and( continued( use( of( intoxicants,( to( such( an(
extent( as( to( render( the( subject( of( the( habits( as( unsafe( against( to(
entrust(with(the(care(of(property(or(the(transaction(of(business.(
(
40 |
To(sustain(a(judgment(of(want(of(integrity((the(accusation(should(be(
certain( and( grave( in( its( nature,( and( must( be( established( by( proof(
which(would(at(least(approach(the(certainty(required(for(conviction(
in(a(criminal(prosecution.(
Moral& Turpitude& & an( act( of( baseness,( vileness( or( depravity( in( the(
private(and(social(duties(which(a(man(owes(his(fellow(men,(to(society(
in( general,( contrary( to( the( accepted( and( customary( rule( of( right( and(
duty( between( man( and( woman( or( conduct( contrary( to( justice,(
honesty,(modesty(or(good(morals.(
(
Q
A
HELD:
NO. there is nothing in the law that requires the courts to appoint
residents only as administrators or guardians. However, notwithstanding
the fact that there are no statutory requirements upon this question, the
courts, charged with the responsibilities of protecting the estates of
deceased persons, wards of the estate, etc., will find much difficulty in
complying with this duty by appointing administrators and guardians who
are not personally subject to their jurisdiction. Notwithstanding that there
is no statutory requirement, the courts should not consent to the
appointment as administrators and guardians of person who are not
personally subject to the jurisdiction of our courts here.
Q
A
Q
A
Q
A
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q
A
41 |
Q
A
Q
A
(
Letters&Testamentary((is(an(authority(issued(to(an(executor&named(in(
the(will(to(administer(the(estate.(
(
Letters& of& Administration( ( is( an( authority( issued( by( the( court( to( a(
COMPETENT( person( to( administer( the( estate( of( the( deceased( who(
died(intestate.(
(
Letters&of&Administration&with&a&Will&Annexed((is(an(authority(issued(
by(the(court(to(a(COMPETENT(person(to(administer(the(estate(of(the(
deceased( if( the( executor( named( in( the( will( refused( to( accept( the(
office.(
(
Q
A
Q
A
A
Q
A
Q
FACTS:
Msgr. Gorordo, the retired bishop of Cebu, died leaving a will.
Said will instituted his sister, herein respondent, Maria Gorordo Vda. De
Jaen as his universal heir and in case of her death, his nieces Telesfora
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Jaen and Cesorea Gorordo. Fr. Emiliano Mercado, a parish priest of San
Nicolas, Cebu, was named as an executor and in his absence, Fr. Alejandro
Espina, parish priest of Cebu Central. The will was duly probated and the
CFI of Cebu confirmed the appointment of Fr. Mercado after the later filed
a 5000 bond.
Maria, Telesfora and Ceserea opposed the order appointing Fr. Mercado as
executor and prayed for the suspension of said order alleging that:
1. Mercado engaged the services of Atty. Alo and Veloso for the sole
purpose of repaying the obligations owed to said lawyers.
2. Mercado cannot be impartial as his parish, San Nicolas, was named
as one of the legatees in the will.
3. As the estate had no debts and since the heirs are all of age, there
is no need to incur unnecessary expenses as that of executors and
attorneys fees.
4. Appellants are better able to protect the interests of the estate
5. Atty. Reviles, husband of Cesarea, is willing to render professional
services free of charge
The LC denied said opposition.
ISSUE/S:
Whether Fr. Mercado should be appointed executor.
HELD:
YES. When Msgr. Gorordo chose Mercado as executor of his
estate after his death, he must have had good and sufficient reasons and
as such, his will must be respected. Under Section 641 of Act no. 190,
once a will is probated, the court is bound to issue letters testamentary
thereon to the person so named as executor of the will provided he
accepts the trust and files the required bond. While it may be true that
such should not be strictly interpreted, for the court may be deprived of its
power to appoint another should the executor so named is incapacitated, it
is also true that incapacity must be manifest and real and not merely
imaginary.
As to appellants allegations:
1. The reason chosen by Fr. Mercado in his engagement of said
lawyers is because of the competence and confidence he has on
said lawyers. Further, the estate is not yet prejudiced as it is yet to
be decided who is to pay to the lawyers (the estate or Fr.
Mercado?)
2. the parish of Fr. Mercado is not the legatee but the poor
ofSan Nicolas
3. Due to the numerous legacies and several claims being made on
the estate, it is absolutely necessary to appoint an executor.
4. Atty. Revilles will be a partial executor as he had previously sought
to exclude shares of Monte de Piedad from the inventory of the
estate alleging that they were not mentioned in the will.
Q
A
Q
A
Q
A
42 |
application. And where the probate court pending appeal against its
order admitting a will to probate and appointing as judicial
administrator, the person named therein as executor, appoints as
special administrator any person other than the executor named in
the will, it contains an abuse of discretion (Ozaeta, et al. vs. Pecson,
etc. and BPI)
The Rules of Court grants discretion to the probate court to
appoint or not to appoint a special administrator. Such power
of appointment is not even governed by the preference rule
governing
appointment
of
regular
administrators.
Nevertheless, this discretion should not be a whimsical one,
but one that is reasonable and logical and in accord with
fundamental legal principles and justice. The fact that a judge
is granted discretion does not authorize him to become partial,
or to make his personal likes and dislikes prevail over, or his
passions to rule his judgment. Hence, there is no reason why
the same fundamental and legal principles governing the
choice of a regular administrator should not be taken into
account in the appointment of the special administrator.
Sec. 5. Where some coexecutors disqualified others may act. When all of the executors named in a will can not act because of
incompetency, refusal to accept the trust, or failure to give bond, on
the part of one or more of them, letters testamentary may issue to
such of them as are competent, accept and give bond, and they may
perform the duties and discharge the trust required by the will.
Q
A
Q
A
Q
A
Q
A
Sec. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are
incompetent, refuse the trust, or fail to give bond, or a person dies
intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of
kin, or both, in the discretion of the court, or to such person as
such surviving husband or wife, or next of kin, requests to have
appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of
kin, or the person selected by them, be incompetent or unwilling,
or if the husband or widow, or next of kin, neglects for thirty (30)
days after the death of the person to apply for administration or
to request that administration be granted to some other person, it
may be granted to one or more of the principal creditors, if
competent and willing to serve;
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
(c)
Q
A
Q
A
Q
A
FACTS:
Proceso de Guzman married Agatona Santos, with whom he had
four children: Nicolasa (appellee), Apolinario, Ana and Tomasa. During the
marriage the couple acquired properties. After the death of Agatona,
Proceso married herein appellant Angela Limcolioc with whom he had no
child. After the death of Proceso, Nicolasa was appointed by the court as
administrator of the properties. Angela opposed, contending that as the
widow, she must be preferred.
In the case of de Guzman v. Limcolioc (same parties) this court
stated that the principal consideration reckoned with in the appointment of
the administrator of the estate of a deceased person is the interest in said
estate of the one to be appointed as such administrator. This is the same
consideration which the law takes into account in establishing the
43 |
Q
A
A
Q
A
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q
A
Q
A
Q
A
Q
A
As( a( creditor,( it( was( appellants( duty( to( present( its( claim( within( a(
reasonable( time( after( the( death( of( the( decedent( in( the( estate(
proceedings,( and( if( none( were( had,( to( file( a( petition( for( letters( of(
administration(as(authorized(by(Sec.(6(b),(Rule(78.((Rio!y!Compania!vs.!
Maslog)(
(
General&Rule:(the(court(cannot(set(aside(the(order(of(preference(under(
Sec.(6,(Rule(78(
Exception:( In( case( the( person( who( have( the( preferential( right( to( be(
appointed( under( the( Rule( are( not( competent( or( are( unwilling( to( serve(
administration(or(they(neglect(to(apply(for(letters(administration(for(30(
days( after( the( decedents( death,( the( letters( may( be( granted( to( such(
other(person(as(the(court(may(appoint.(
(
The( Order( of( Appointment( of( Regular( Administrator( is( final! and!
appealable.(
44 |
!
30Yday&Period&May&be&Waived(
Just( as( the( order( of( preference( is( not( absolute( and( may( be(
disregarded( for( valid( cause( despite( the( mandatory( tenor( in( the(
opening( sentence( of( Rule( 78( for( its( observance,( so( may( the( 30dday(
period( be( likewise( waived( under( the( permissive( tone( in( paragraph(
(b)( of( said( rule( which( merely( provides( that( said( letters( as( an(
alternative,( may( be( granted( to( one( or( more( of( the( principal(
creditors.(
Q
A
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
It is almost a universal rule to give to the surviving spouse a
preference when an administrator is to be appointed unless for strong
reasons, it is deemed advisable to name someone else. Section 642 of the
Code of Civil Procedure (now Section 6, Rule 138) leaves this to the
discretion of the court to determine, for it may be found that the surviving
spouse is unsuitable for the responsibility. Moreover, non- residence is a
factor to be considered in determining the propriety of the appointment
and in this connection, it is noted that the husband of the deceased (who
is) the administrator of the principal administration, resides in Singapore. It
is the opinion of the court that the administration of the estate of the
deceased in the philippines could best be taken cared of by the brother
who was also residing in the country rather than by the husband who was
in Singapore.
If the husband should come into this jurisdiction, the court
would give consideration to his petition that he be named ancillary
administrator for local purposes. Ancillary letters should be ordinarily be
granted to the domicillary representative if he applies therefore or to his
nominee or attorney but the absence of express statutory requirement the
country may in its discretion appoint some other person.
Q
A
Q
A
RULE 79
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY.
PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION
Sec. 1. Opposition to issuance of letters testamentary;
Simultaneous petition for administration. - Any person interested
in a will may state in writing the grounds why letters testamentary
should not issue to the persons named therein executors, or any of
them, and the court, after hearing upon notice, shall pass upon the
sufficiency of such grounds. A petition may, at the same time, be filed
for letters of administration with the will annexed.
Q Who is an interested person?
A Any interested person is one who would be benefited by the estate,
such as an heir or one who has a claim against the estate such as a
creditor.
Q Who are the heirs deemed as interested persons?
A Only forced heirs of the deceased are interested persons who are
entitled to intervene in order to protect their interest in so far as they
may have been prejudiced by the will. Heirs who were not forced heirs
of the deceased have no right to any part of the property left by the
testator once he had disposed of the same by will. (Gutierrez del
Campo vs. Varela Calderon)
45 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
does not lose her standing in the probate court. (Gutierrez vs. Villegas)
In other words, if the settlement of the estate is already pending
before the probate court, mere assignment of ones rights, interests
and participation in the estate does not have the effect of losing ones
standing or right in the probate court whether such assignment has
been judicially approved. This is so because at the time of said
assignment, the settlement court had already acquired jurisdiction over
the properties of the estate. As a result, any assignment regarding the
same has to be approved by the court. Since the approval of the court
is not deemed final until the settlement of the estate is closed, the
assigning heir remains an interested person in the proceeding even
after said approval, which can be vacated.
IN THE MATTER OF THE INTESTATE ESTATE OF THE DECEASED
IRENE SANTOS. JOSE D. VILLEGAS, Administrator, ADELA SANTOS
GUTIERREZ vs. JOSE D. VILLEGAS, and RIZALINA SANTOS
RIVERA, G.R. No. L-11848
May 31, 1962
FACTS:
Irene Santos died intestate, leaving as her only heirs her surviving
spouse Jose D. Villegas and two nieces daughters of a deceased
brother, Rizalina Santos Rivera and Adela Santos Gutierrez. Thereafter,
Jose Villegas filed with the CFI of Rizal, a petition for Letters of
Administration, and was appointed administrator of the estate. An
unverified manifestation signed by Adela Gutierrez, accompanied by a
public instrument entitled "Kasulatan ng Bilihan at Salinan" was presented
to the Probate Court whereby Adela Gutierrez assigns her rights,
participation and interest in the estate to Rizalina and that she will not take
part in the proceedings and not entitled to the service of any pleadings,
motions, orders filed in court.
Adela later averred that the deed of assignment of her rights,
participation and interest in the estate of Irene Santos and the first
manifestation were obtained thru fraud by Villegas were vitiated by
mistake or undue influence. Villegas and Rizalina filed exceptions and/or
objections to the Manifestation, denying the allegations of fraud, undue
influence and the like. Nevertheless, the lower court issued an order
declaring that although at the onset, Adela had the right to intervene as
one of the legal heirs, yet when she filed her deed of assignment, she had
ceased to have any interest in the estate and until which such is annulled,
her interest would merely be a contingent one.
ISSUE/S:
Whether Adela is an interested party
HELD:
Adela Santos Gutierrez is an indispensable party to the proceedings in
question. Her interest in the estate is not inchoate, it was established at
the time of death of Irene Santos. While it is true that she executed a deed
of assignment, it is also a fact that she asked the same to be annulled.
Although Adela had filed a manifestation dropping herself from the
proceedings and presenting therewith the supposed Deed of Assignment,
the record, nevertheless fails to show that action thereon had been taken
by the probate Court. Every act intended to put an end to indivision
among co-heirs and legatees or devisees is deemed to be a
partition, although it should purport to be a sale, an exchange, a
compromise, or any other transaction.
Q What is the effect of such assignment?
A If the assignment took place when no settlement proceeding was
pending, the properties subject matter of the assignment were not
under the jurisdiction of a settlement court. Hence, there is no necessity
of any court approval. Consequently, the assigning heir is deemed to be
left without any interest in the estate and cannot subsequently petition
for its settlement. (Duran vs. Duran)
! If the assignment is being assailed by the heir on the ground of fraud,
lesion, etc, then the proper remedy is to rescind or annul the same in
an action for that purpose. Pending the outcome of the action, his
interest is merely contingent.
46 |
In(order(to(be(a(party,(a(person(must(have(material(and(direct,(and(
not(one(that(is(only(indirect(and(contingent,(interest.(
The(opposition(may(be(accompanied(by(a(Petition(for(the(issuance(of(
Letters(of(Administration(with(the(will(annexed.(
(
Q Who is an interested person?
A An interested person is one who would be benefited by the estate,
such as an heir or one who has a claim against the estate, such as a
creditor.
Q Is it necessary for the person filing an opposition that he
himself be eligible or appointed?
A NO. Objection to the issuance of letters testamentary or of
administration can be made only by persons having interest in the
estate but where one has interest, the fact that he himself is not
eligible for appointment does not deprive him of the right to object to
the appointment of another.
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q X died and was survived by his two sons, Y and Z. in his will, X
named Y as executor. Can Z, a minor, oppose the appointment
of Y on the ground that the latter is a drunkard?
A YES. Z can oppose. His mere disqualification as a minor does not stop
him from filing an opposition if he believes reasonable grounds thereof
exist.
Publication( for( 3( weeks( and( notice( to( heirs,( creditors( and( other(
persons(believed(to(have(an(interest(in(the(estate(is(required(before(
hearing(
Sec.(3(is(Jurisdictional(
(
Q What must the court do when a petition for letters of
administration is filed?
A The court must:
1. fix the time and place for hearing the petition
2. cause the notice thereof to be given to:
(a) known heirs of the decedent
(b) known creditors of the decedent and
(c) other persons believed to have an interest in the estate.
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q Is the order fixing the date for hearing for the appointment of
an administrator appealable?
A An order of a probate court fixing the date for the hearing of an
application for appointment of an administrator of the estate of a
deceased person is NOT APPEALABLE. It is merely an interlocutory
order. It simply gives the parties an opportunity to be heard and the
court an occasion for action.
Q What kinds of notices are required to be made before the
hearing of the petition for letters of administration?
A The same notices required in the petition for probate of a will under
Sections 3 and 4 of Rule 76 are required to be made in the petition for
letters of administration. Hence, there must be notice of the time and
place of the hearing published 3 weeks successively previous to the
time appointed, in a newspaper of general circulation in the province
where the court has jurisdiction. Notice of such must also be given to
the known heirs and creditors and any other persons who have an
interest in the estate who are residents of the Philippines, either by
registered mail or by personal service.
Q Why is there a need for such notices?
A The purpose of the notices is to bring all interested persons within the
courts jurisdiction so that the judgment therein becomes binding on all
the world. Where no notice has been given to persons believed to have
an interest in the estate of the deceased person the proceeding for the
settlement of the estate is void and should be annulled. The
requirement as to notice is essential to the validity of the proceeding in
order that no person may be deprived of his right to property without
due process of law. Verily, notice through publication is jurisdictional.
The absence of which makes court orders affecting other persons,
subsequent to the petition void and subject to annulment. (De Guzman
vs. Angeles)
! We must differentiate between the jurisdiction of the probate court
over the proceeding for the over the persons who are
administration of an estate
interested in the settlement of
the estate.
FACTS: To acquire jurisdiction, the FACTS: To acquire jurisdiction,
filing of the petition before the notices
by
publication
are
court is necessary.
essential.
PEDRO DE GUZMAN vs. RTC Judge ZOSIMO Z. ANGELES; DEPUTY
SHERIFFS JOSE B. FLORA and HONORIO SANTOS and ELAINE G.
DE GUZMAN
G.R. No. 78590 June 20, 1988
FACTS:
Elaine G. de Guzman filed a petition for the settlement of the
intestate estate of Manolito de Guzman, before the RTC of Makati. The
petition alleges that: (1) Manolito de Guzman died in Makati; (2) at the
time of his death, the decedent was a resident of Makati; (3) decedent left
personal and real properties as part of his estate (4) the properties were
acquired after the marriage of the petitioner to the decedent and therefore
are included in their conjugal partnership; (5) the estate of -the decedent
has a probable net value which may be provisionally assessed at
P4,000,000.00 more or less; (6) the possible creditors of the estate, who
have accounts payable and existing claims against the firm C. SANTOS
Construction (7) the compulsory heirs of the decedent are the as the
surviving spouse and their two (2) minor children namely: Charmane Rose
de Guzman 11 years and Peter Brian de Guzman, 9 years old; (8) after
diligent search and inquiry to ascertain whether the decedent left a last will
and testament, none has been found and according to the best knowledge
information and belief of the petitioner; and (9) the petitioner as the
survey surviving spouse of the decedent, is most qualified and entitled to
the grant of letters of administration.
Elaine filed a motion for writ of possession over 5 vehicles registered
under the name of Manolito de Guzman, alleged to be conjugal properties
of the de Guzman's but which are at present in the possession of the
private respondent's father-in- law, Pedro de Guzman. The motion stated
that as co-owner and heir, the private respondent must have the
possession of said vehicles in order to preserve the assets of her late
husband. On the same day, the lower court issued an order setting for
48 |
hearing the motion and directing the deputy sheriff to notify petitioner
Pedro de Guzman at the expense of the private respondent. However,
the hearing was postponed on motion of petitioner's counsel.
In the meantime, Elaine filed her "Ex-Parte Motion to Appoint
Petitioner as Special Administratrix of the Estate of Manolito de
Guzman." RTC Judge directed that all parties in the case be notified.
However, no notice of the order was given to De Guzman. Nevertheless,
lower court granted the Elaine's motion to be appointed as special
administratrix and ordered some military men and/or policemen to assist
her in preserving the estate of Manolito de Guzman.
Trouble ensued when the respondents tried to enforce the above
order. The petitioner resisted when Deputy Sheriffs Jose B. Flora and
Honorio Santos tried to take the subject vehicles on the ground that they
were his personal properties. De Guzman contends that the order is a
patent nullity, the respondent court not having acquired jurisdiction to
appoint a special administratrix because the petition for the settlement
of the estate of Manolito de Guzman was not yet set for hearing and
published for three consecutive weeks, as mandated by the Rules of
Court. The petitioner also stresses that the appointment of a special
administratrix constitutes an abuse of discretion for having been made
without giving petitioner and other parties an opportunity to oppose said
appointment.
ISSUE/S:
Whether a probate court may appoint a special administratrix and
issue a writ of possession of alleged properties of a decedent for the
preservation of the estate in a petition for the settlement of the intestate
estate of the said deceased person even before the probate court causes
notice to be served upon all interested parties.
HELD:
NO. Notice through publication of the petition for the settlement of
the estate of a deceased person is jurisdictional, the absence of which
makes court orders affecting other persons, subsequent to the petition
void and subject to annulment. In the instant case, no notice as
mandated by section 3, Rule 79 of the Revised Rules of Court was
caused to be given by the probate court before it acted on the motions
of the private respondent to be appointed as special administratrix, to
issue a writ of possession of alleged properties of the deceased person in
the widow's favor, and to grant her motion for assistance to preserve the
estate of Manolito de Guzman.
If emergency situations threatening the dissipation of the assets of
an estate justify a court's immediately taking some kind of temporary
action even without the required notice, no such emergency is shown in
this case. The need for the proper notice even for the appointment of a
special administrator is apparent from the circumstances of this case.
Where( no( notice( as( required( by( this( section( has( been( given( to(
persons( believed( to( have( an( interest( in( the( estate( of( the( deceased(
person,(the(proceeding(for(the(settlement(of(the(estate(is( void(and(
should(be(annulled.((Eusebio!vs.!Valmores)(
(
Sec. 4. Opposition to petition for administration. - Any interested
person may, by filing a written opposition, contest the petition on the
ground of the incompetency of the person for whom letters are prayed
therein, or on the ground of the contestant's own right to the
administration, and may pray that letters issue to himself, or to any
competent person or persons named in the opposition.
Q What are the grounds for opposing a petition for
administration?
A The following are the grounds for opposing a petition for
administration:
1. incompetence of the person to whom letters are prayed; or
2. contestants right to administration;
3. the express requirement of the statute has not been complied
with.
Sec. 5. Hearing and order for letters to issue. - At the hearing of
the petition, it must first be shown that notice has been given as
hereinabove required, and thereafter the court shall hear the proofs of
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
the parties in support of their respective allegations, and if satisfied that
the decedent left no will, or that there is no competent and willing
executor, it shall order the issuance of letters of administration to the
party best entitled thereto.
RULE 80
SPECIAL ADMINISTRATOR
(
Letters(of(Administration(will(issue(if(it(is(proven(that:(
(a)(Notice(as(required(in(Sec.!3(was(given;(and(
(b)( The( decedent( left( no( will;( or( there( is( no( competent( and( willing(
executor(
(
49 |
(
NATIVIDAD I. VDA. DE ROXAS vs. CFI Judge POTENCIANO
PECSON, MARIA ROXAS and PEDRO ROXAS
G.R. No. L-2211
December 20, 1948
FACTS:
Pablo M. Roxas died leaving properties in Bulacan. Maria and Pedro
Roxas, sister and brother respectively of the deceased, filed a petition for
the administration of the latter's estate. Maria Roxas was appointed
special administratrix upon an ex-parte petition. Natividad Vda. de
Roxas, widow of Pablo M. Roxas, filed a petition for the probate of an
alleged will of her deceased husband, and for her appointment as
executrix of his estate designated is said will. In said will the deceased
bequeathed one-half of his estate to his widow, Natividad, and the other
half to Reynaldo Roxas, an adulterous child 9 years old of the decedent.
Upon agreement of both parties, the intestate proceeding was dismissed
and ordered closed by the court.
Respondents opposed to the probate of the will. Nevertheless,
Natividad was appointed, special administratrix and qualified as such
over the objection of the respondents Maria and Pedro Roxas, who
sought the appointment of Maria as such. The said respondents filed a
motion for reconsideration of the order of the court appointing the
petitioner as special administratrix, with an alternative prayer that Maria
Roxas be appointed as special co-administratrix, which motion was not
acted upon.
After hearing, respondent judge rendered a decision denying the
probate of the will presented by Natividad on the ground that the
attesting witnesses did not sign their respective names in the presence
of the testator, from which the petitioner has appealed, and the appeal
is now pending.
Maria and Pedro Roxas renewed their petition for the appointment
of Maria Roxas as special administratrix or special co-administratrix.
Respondent judge rendered his resolution appointing the petitioner
Natividad I. Vda. de Roxas as special administratrix only of all the
conjugal properties of the deceased, and Maria Roxas as special
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
administratrix of all capital or properties belonging exclusively to the
deceased Pablo M. Roxas.
ISSUE/S:
Whether the CFI judge acted in excess of its jurisdiction in appointing
two special administrators.
HELD:
Respondent judge acted in excess of the court's jurisdiction in
appointing two separate special administratices of the estate of the
decedent: one of the conjugal or community property and another of the
capital or exclusive property of the deceased Pablo M. Roxas.
The administrator appointed to administer and liquidate the exclusive
property of a deceased spouse shall also administer, liquidate and
distribute the community property, because the estate of a deceased
spouse which is to be settled, that is, administered, liquidated and
distributed, consists not only of the exclusive properties of the decedent,
but also of one-half of the assets of the conjugal partnership, if any, which
may pertain to the deceased, as determined after the liquidation thereof in
accordance with the provisions of articles 1421 to 1424 of the Civil Code.
There is absolutely no reason for appointing two separate
administrators, specially if the estate to be settled is that of a deceased
husband as in the present case. If two separate administrators are
appointed as done in the present case, in every action which one of them
may institute to recover properties or credit of the deceased, the
defendant may raise the question or set up the defense that the plaintiff
has no cause of action, because the property or credit in issue belongs to
the class which is being administered by the other administrator, which
can not be done if the administrator of the entire estate is only one.
As under the law only one general administrator may be appointed to
administer, liquidate and distribute the estate of a deceased spouse, it
clearly follows that only one special administrator may be appointed to
administer temporarily said estate, because a special administrator is but a
temporary administrator who is appointed to act in lieu of the general
administrator.
The appointment of a special administrator is of the discretion of the
court, which must sound, that is, not whimsical or contrary to reason,
justice or equity. It is well settled that the statutory provisions as to the
prior or preferred right of certain persons to the appointment of
administrator under section 1, Rule 81, as well as the statutory provisions
as to causes for removal of an executor or administrator under section 2,
Rule 83, do not apply to the selection or removal of special administrator.
Q Is the preference accorded by Section 6 of Rule 78 in the
appointment of an administrator applicable to the appointment
of a special administrator?
A Discretionary. It may not be amiss to note that the preference accorded
by the aforementioned provision of the Rules of Court to the surviving
spouse refers to the appoint of a regular administrator or administratrix,
not to that of a special administrator, and that the order appointing the
latter lies within the discretion of the probate court, and is not
appealable. (Pijuan vs. Vda. De Gurrea)
TESTATE ESTATE OF THE DECEASED CARLOS GURREA Y
MONASTERIO. MARCELO PIJUAN vs. MANUELA RUIZ VDA. DE
GURREA,
G.R. No. L-21917
November 29, 1966
FACTS:
Manuela Ruiz and Carlos Gurrea were married in Spain, where they
lived together until 1945, when he abandoned her and came, with their
son Teodoro, to the Philippines. Here he lived maritally with Rizalina Perez
by whom he had 2 children. Having been informed by her son Teodoro,
years later, that his father was residing in Pontevedra, Negros Occidental,
Manuela came to the Philippines; but, Carlos Gurrea refused to admit her
to his residence in said municipality. Hence, she stayed with their son,
Teodoro, in Bacolod City.
Days later, she instituted, against Carlos Gurrea, a civil case for
support and the annulment of some alleged donations of conjugal
property, in favor of his common-law wife, Rizalina. In due course, said
court issued an order granting Mrs. Gurrea a monthly alimony, pendente
lite, of P2,000.00 which was later reduced to P1,000.00.
50 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q What is the remedy of a party aggrieved by an order granting a
special administrator?
A A PETITION FOR CERTIORARI based on grave abuse of discretion. But
such will not hasten the settlement of the estate.
Q May the court moto proprio appoint a special administrator?
A It seems that a special administrator may be appointed upon
1. the application of any interested parties; as well as
2. by the court upon its own motion without notice to the parties.
Regular Administrator
Order of Appointment is FINAL
and is APPEALABLE
One of the obligations is to pay
the debts of the estate
Appointed when decedent died
intestate or did not appoint an
executor in the will or will was
disallowed
Special Administrator
Order
of
appointment
is
INTELOCUTORY and is NOT
APPEALABLE
Cannot pay the debts of the estate
Appointed when
granting letters
administration
executor is a
estate
there is delay in
testamentary or
or
when
the
claimant of the
(
Special( administrators( are( officers( of( the( court( and( while( they( may(
have( respective( interests( to( protect,( they( are( officers( of( the( Court(
subject( to( the( supervision( and( control( of( the( Probate( Court( and( are(
expected(to(work(for(the(best(interest(of(the(entire(estate,(its(smooth(
administration,(and(its(earliest(settlement.(
(
Q What are the powers and duties of a special administrator?
A The following are the powers and duties of a special administrator:
1. take possession and charge of the goods, chattels, rights, credits
and estate of the deceased
2. preserve the goods, etc. of the deceased for the executor or
administrator afterwards appointed
3. commence and maintain suits as administrator
4. sell such perishable and other properties AS THE COURT
ORDERS SOLD
5. prepare and submit an inventory of the estate
6. render an accounting of administration
7. Pay debts ONLY as may be ordered by the court.
While( the( ROC( does( not( fix( a( period( within( which( the( special(
administrators(should(submit(an(inventory(of(the(estate,(it(cannot(be(
denied(that(such(duty(has(to(be(performed(within(a(reasonable(period,(
if( not( as( soon( as( practicable,( in( order( to( preserve( the( estate( and(
protect(the(heirs(of(the(deceased.(
(
Q May the special administrator be sued by a creditor for the
payment of a debt of the deceased?
A The Special Administrator cannot be sued by a creditor for the payment
of a debt of the deceased and such suit must await the appointment of
a regular administrator. However, the Special Administrator may be
made a defendant in a suit against the estate where the creditor would
be prejudiced by the adverse effects of the running of the statue of
limitations against them if the appointment is delayed.
Q If you are a creditor, what is your remedy if you already have a
decision in your favor?
51 |
It(is(possible(for(the(executor(or(administrator(whose(appointment(is(
challenged( by( appeal( to( be( appointed( also( as( the( special(
administrator( pending( such( appeal.( There( is( no( hard( in( appointing(
the( same( person( as( special( administrator( because( there( is( a( vast(
difference(between(the(powers(and(duties(of(the(two(positions.(
RULE 81
BONDS OF EXECUTORS AND ADMINISTRATORS
Sec. 1. Bond to be given before issuance of letters; Amount;
Conditions. - Before an executor or administrator enters upon the
execution of his trust, and letters testamentary or of administration
issue, he shall give a bond, in such sum as the court directs, conditioned
as follows:
(a) To make and return to the court, within three (3) months, a true
and complete inventory of all goods, chattels, rights, credits, and
estate of the deceased which shall come to his possession or
knowledge or to the possession of any other person for him;
(b) To administer according to these rules, and, if an executor,
according to the will of the testator, all goods, chattels, rights,
credits, and estate which shall at any time come to his possession
or to the possession of any other person for him, and from the
proceeds to pay and discharge all debts, legacies, and charges on
the same, or such dividends thereon as shall be decreed by the
court;
(c) To render a true and just account of his administration to the court
within one (1) year, and at any other time when required by the
court;
(d) To perform all orders of the court by him to be performed.
Q Why is bond required before an executor or administrator
enters upon the execution of his trust?
A The bond posted by administrators and executors is intended as an
indemnity to the creditors, heirs and the estate. The court shall fix the
amount stated thereof and hold it accountable for breach of duty on
the part of the administrator or executor. In other words, the bond is
answerable for any failure on the part of the administrator or
executor to fulfill any conditions imposed upon him in the execution
of his trust.
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q What is the effect of the failure to give bond?
A While the failure of the duly appointed executor or administrator to give
the required bond may prevent the granting of letters testamentary or
of administration in most jurisdictions, such failure does not render void
the letters of administration granted prior to the filing of the bond. Said
letters are for this reason, only irregular and voidable and therefore, are
not subject to collateral attack, but merely give ground for appeal. The
administration of an estate is considered suspended until the person
appointed executor or administrator files the proper bond.
Q Is the executor or administrator liable for all losses suffered by
the estate under his administration?
A The standard of responsibility of the executor or administrator is best
measured as in essence the responsibility of the bailee. Like any bailee,
he must pursue his discretion honestly and in good faith, or he will
become personally liable to those who are interested in the estate for
waste, conversion or embezzlement. But where an administrator,
entrusted with the carrying on of an estate, acts in good faith and in
accordance with the usual rules and methods obtaining in such
business; he will not be held liable for losses incurred. The law does not
impose upon the administrator or executor a high degree of care in the
administration of the estate, but it does not impose upon him ordinary
and usual care, for the want of which he is personally liable.
(
When&Filed:&
Before( an( executor( or( administrator( enters( upon( the( execution( of( his(
trust.(
Amount:(
To(be(fixed(by(the(court.(
(
Q What are the duties or the conditions imposed on the executor
or administrator?
A The following are the duties or conditions imposed on the executor or
administrator:
1. To make return to the court within 3 months, a true and
complete inventory of all goods, chattels, rights and estate of
the deceased, which shall come to his possession or knowledge
or the possession of any other person for him in accordance with
the Rules of Court and in case of an executor, in accordance
with the will of the testator
2. to pay and discharge all debts, legacies and charges on the
estate, or such dividends thereon as shall be declared by the
court from the proceeds of the administration;
3. to render a true and just account of his administration within 1
year and at any other time when required by the court; and
4. to perform all orders of the court
Administrators&Bond((Statutory&Bond&
Conditions(prescribed(by(statute(forms(part(of(bond(agreement(
Terms( and( effectivity( of( bond( does( not( depend( on( payment( of(
premium( and( does( not( expire( until( the( administration( is( closed.( As(
long( as( the( probate( court( retains( jurisdiction( of( the( estate,( the( bond(
contemplates(a(continuing(liability.((luzon!surety!vs.!Quebrar).!(
(
Q What must the inventory to be made by the executor or
administrator contain?
A It must be observed that the inventory to be made and returned by an
executor or administrator must contain the following statements:
1. all the properties of the deceased which have come to his
possession
2. all the properties as may have come to his knowledge
Although he is not chargeable with the administration of the estate which
has not come to his possession, he is however accountable for a true and
complete inventory of all the properties which has come to his knowledge.
(Tan vs. Go Chiong Lee)
52 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
payment of all the debts and expenses. An efficient administration
should, therefore, consist not only in taking charge of the assets in a
manner which is safe and productive, but also in a prompt payment of
all the debts of the deceased and expenses of administration with the
view to an early distribution of the remainder amount the persons are
entitled thereto. The policy of these rules is to close up the estate as
promptly and as economically as possible.
Q In the determination of the estate, may the executor or
administrator bind the estate by borrowing money or
mortgaging any of the properties of the estate to secure a debt
or to obtain a loan?
A Neither the executors or administrators may bind the estate when they
borrow money or mortgage any of the properties of the estate to
secure a debt or to obtain a loan. UNLESS specially authorized by will.
the statute grants no power to an administrator to borrow money upon
a mortgage of the real estate of the decedent, is not controverted.
Indeed, such an act is foreign to the policy and purpose of
administration, which aims to close up, not to continue an estate.
(Sociedad de Lizzaraga Hermanos vs. Abada)
SOCIEDAD DE LIZARRAGA HERMANOS vs. FELICISIMA ABADA, ET
AL.
G.R. No. 13910
September 17, 1919
FACTS:
Francisco Caponong died, owing the plaintiffs a sum of money which
was then less than the amount allowed by the commissioners. His widow,
Felicisima Abada, was appointed administratrix of the estate,
commissioners to appraise the estate and to pass on the claims against the
estate were duly appointed, and plaintiffs presented their claim which was
allowed by the commissioners in the sum of P12,783.74.
The administratrix leased the hacienda known as "Coronacion" to
Hilario Zayco for a term of years, but afterwards she married Vicente
Alvarez, one of the defendants, and the lease was transferred to Alvarez
by Zayco.
Nearly 7 years after the death of Caponong, the plaintiffs herein filed
a suit in the CFI of Occidental Negros against Felicisima Abada personally
and as administratrix of the estate of Francisco Caponong, alleging that
Francisco Caponong owed plaintiffs P12,783.74, and that Felicisima Abada
in her own name and as administratrix, had been receiving from the
plaintiffs money and effects from 1908 to 1912 which money and effects
were used by the defendant in "the expense of cultivation and the
exploitation of the Hacienda 'Coronacion,' "and that defendant had
delivered to plaintiffs the sugar produced until the last crop which she
refused to deliver to them. And that due to drought and poor crops of the
farm and after deducting for the sugar delivered, the account of the
defendant showed a balance in favor of plaintiffs of P62,437.15; that of
this amount they were informed the defendant recognized as due from the
estate only "about P14,000" which however had not been paid; that it had
been agreed by Francisco Caponong that the "amounts" taken should draw
interest at the rate of 12% from the date of each. They also asked for
judgment for P62,437.15 with interest at 12% and P1,500 for attorney's
fee.
Defendant admits she owed P8,555.78 as administratrix, and alleges
that the balance was due by her personally. While the guardian of the
minor children of Francisco Caponong denied the claim under oath, and
alleged that the estate of Francisco Caponong did not owe plaintiffs
anything.
Nevertheless, the parties, including the guardian of the minors,
presented a motion in court stating that they had made an amicable
settlement of the litigation, and prayed the court to dismiss the action,
which was done. It was agreed upon by the parties that "Francisco
Caponong's estate was indebted to the plaintiffs, in the sum of P68,611.01,
which was to be paid with 10% interest in 7 equal annual installments;"
and to secure this debt, the defendants agreed to give plaintiffs a first
mortgage on all the property of Francisco Caponong, except the growing
sugar cane, and on all the property belonging exclusively to Felicisima
Abada, and the defendants agreed to secure judicial approval of the
settlement. The defendants also agreed to mortgage the carabaos then on
the hacienda to plaintiffs. The compromise was approved by the court as
well as the mortgage. However, the mortgage given was not recorded in
the registry of property up to time of the institution of this suit.
53 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
There can be no legal excuse for delaying the closure of administration
to more than 2 years and a half, as provided in Section 16, Rule 88.
Q In the administration of the estate, is the administrator or
executor authorized to continue the business in which the
decedent was engaged at the time of his death?
A An executor or administrator ordinarily has no power to continue the
business in which the decedent was engaged at the time of his death;
and this is true although he acts in the utmost good faith and believes
that he is proceeding for the best interests of the estate. The penalty
for continuing a business of the decedent without authority is the
imposition of a personal liability on the executor or administrator so
doing for all debts of the business. The normal duty of the personal
representative in reference to such business is limited to winding it up,
and even where the beneficiaries are infants the court cannot authorize
the administrator to carry on the trade of the decedent. So great a
breach of trust is it for the representative to engage in business with
the funds of the estate that the law charges him with all the losses
thereby incurred without on the other hand allowing him to receive the
benefit of any profits that he may make, the rule being that the persons
beneficially interested in the estate may either hold the representative
liable for the amount so used with interest, or at their election take all
the profits which the representative has made by such unauthorized use
of the funds of the estate. (Wilson vs. Rear)
In the matter of the Estate of Charles C. Rear, deceased. J.J.
WILSON, administrator- appellee vs. M. T. REAR, ET AL.,
G.R. No. L-31860
October 16, 1930
FACTS:
Charles C. Rear was murdered by some Moros on his plantation
in an isolated place in Cotabato. J.J. Wilson qualified as special
administrator of the estate. Later, the property of the estate was appraised
at P20,800, of which the commissioners filed an inventory and report,
which was also signed by Wilson. The commisioners made and filed a
report of claims against the estate, but by reasons of the fact that it was
claimed and alleged that the administrator did not have any funds to pay
the court ordered the administrator to sell a portion of the property. With
the consent of the heirs, a petition was made for authority to sell, under
sealed proposal, all the property of the estate, with a view of closing the
administration. The court granted this petition, and after due notice, the
public sale took place, and the property was sold to Wm. Mannion for
P7,600. Wilson submitted a report covering his administration to that date,
which was approved and later set aside on motion of the heirs of the
deceased. Wilson filed his final account which later was amended, to which
the heirs made numerous and specific objections, and after a hearing, the
court approved the account as filed. The heirs claimed that (1) the special
administrator disbursements far in excess of the amount required to
preserve the estate; (2) all loans or advances made to the estate were
contrary to law and not legal charges against the estate since there was no
authority granted by the court; (3) the court erred in admitting Exhibits D,
E and F; and (4) Wilson was neglectful, imprudent and wasteful.
ISSUE/S:
Whether Wilson properly performed his duties as special
administrator
HELD: NO.
1) From 1925-1927, Wilson never made any report, filed any account for
or obtain a court order of any nature. The attention of the court was
called for the first time when the commissioners filed a claim for their
fees.
2) From the final account, it appeared that at the time of Rears death,
the total amount of claims against the estate was only 3,422.58 1,655.54 for claims, interests and taxes and 1,767.04 for the costs
of administration. Had Wilson applied to the court for an order to sell
the personal property of the estate, there would have been a balance
of
2,377.42. however, it appeared that Wilson continued the
operation of the plantation and the employment of Fleming as
manager with a salary of 200 a month and a large number of men.
The net result of this was that all of the property of the estate was
54 |
3)
4)
5)
6)
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q May the testator exempt an executor from the requirement of
posting a bond by providing for such in his will?
A Even if the testator has provided in his will that his executor serve
without bond, the court may still require him to file a bond conditioned
only to pay the debts of the testator, and thereafter, based on the
circumstances, the court may require further bond from said executor
to answer for breaches in his administration.
Sec. 3. Bonds of joint executors and administrators. - When two
or more persons are appointed executors or administrators the court
may take a separate bond from each, or a joint bond from all.
Sec. 4. Bond of special administrator. - A special administrator
before entering upon the duties of his trust shall give a bond, in such
sum as the court directs, conditioned that he will make and return a true
inventory of the goods, chattels, rights, credits, and estate of the
deceased which come to his possession or knowledge, and that he will
truly account for such as are received by him when required by the
court, and will deliver the same to the person appointed executor or
administrator, or to such other person as may be authorized to receive
them.
Q What are the conditions of a special administrators bond?
A The following are the conditions of a special administrators bond:
1. he will make and return a true inventory of the estate of the
deceased which comes to his possession or knowledge;
2. he will truly account for such as are received by him when
required by the court;
3. he will deliver the same to the persons appointed executor or
administrator or to such other person as may be authorized to
receive them.
(
Note:(The(bond(is(effective(as(long(as(the(court(has(jurisdiction(over(the(
proceedings.(
(
RULE 82
REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION,
AND REMOVAL OF EXECUTORS AND ADMINISTRATORS
Sec. 1. Administration revoked if will discovered; Proceedings
thereupon. - If after letters of administration have been granted on the
estate of a decedent as if he had died intestate, his will is proved and
allowed by the court, the letters of administration shall be revoked and
all powers thereunder cease, and the administrator shall forthwith
surrender the letters to the court, and render his account within such
time as the court directs. Proceedings for the issuance of letters
testamentary or of administration under the will shall be as hereinbefore
provided.
Q When may letters of administration issued by a court be
revoked?
A The following are the circumstances when letters of administration
issued by a court can be revoked:
1. when a newly discovered will has been admitted to probate after
the issuance of letters of administration, such letters of
administration may be revoked; and
2. when letters of administration have been issued illegally or
without jurisdiction, such letters of administration may be
revoked by the probate court
When&letters&revoked&and&powers&cease:&(When(the(decedents(will(is(
allowed( and( proved( by( the( court( after( the( issuance( of( letters( of(
administration.(
(
Q What are the effects of such revocation are as provided for by
Section 1, Rule 82?
A The effects of such revocation are as provided for by Section 1, Rule 82
are the following:
1. all powers of administration shall cease;
55 |
(
Duty&of&Administrator&upon&Revocation&of&the&Letters&
(1)(Surrender(the(letters(to(the(court;(or(
(2)(Render(his(account(within(such(time(as(the(court(may(direct.(
(
(
Other&Valid&Grounds&for&Removal:&
(7)(Adverse(interest(of(an(administrator(to(that(of(the(estate(
(8)( Physical( inability( and( consequent( unsuitability( to( manage( the(
estate(
(9)( False( representation( by( an( administrator( in( securing( his(
appointment(
(
Note:,The(Order(of(Removal(is(appealable.(
(
(
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Degree&of&Diligence&Required(
An( administrator( is( required( to( exercise(reasonable& diligence( and( act(
in(entire(good(faith(in(the(performance(of(that(trust.(
(
Q How soon must the executor or administrator render his
account?
A Under Section 8, Rule 85, Every executor or administrator shall render
an account of his administration within one (1) year from the time of
receiving letters testamentary or of administration, unless the court
otherwise directs In connection with this, in one case, an
administrator filed his 1st account 2 years after his appointment as such,
and his 2nd account after the next years. The 2nd account was
disapproved and he was ordered to file an amended account within 30
days. Despite an extension of 10 days after the lapse of the 30- day
period, he still failed to file the required amended account, and he filed
the old account without change. This and some irregularities found in
his accounting were held to be sufficient grounds for his removal since
the court was convinced that such person was unfit to be administrator
since he had not in fact administered the estate with due regard to the
right of other persons in interest. (Gustillo vs. Sian)
Q Are the grounds for removal or compelling resignation under
Section 2, Rule 82 exclusive?
A NO. The grounds enumerated by this legal provision are not exclusive.
Thus, where the appointment of an administrator was procured through
false representations, the power of the court to revoke the appointment
on that ground is beyond question. This is so because the position of
administrator is one of confidence. Once the court finds the appointee
to the position not entitled to such confidence, it is justified in
withdrawing the appointment and in giving no valid efficacy thereto.
(Cobarrubias vs. Dizon) The removal of an administrator lies within the
sound discretion of the court appointing him. The sufficiency of any
ground for removal should thus be determined by said court, whose
sensibilities are, in the first place, affected by any act or omission on
the part of the administrator not conformable to or in disregard of the
rules or orders of the court
Q Give an example wherein the removal of an administrator
constitutes grave abuse of discretion
A M was appointed by the probate court in a special proceeding as one of
the administrators in the settlement of the estate of D. subsequently, C
filed a motion for the removal of M on the ground that he is
incompetent and negligent in the management of the 5 haciendas
under his charge. During the reception of the evidence conducted by
the probate court, C submitted certain exhibits in support of his motion
to oust M on January 8, 1966. M filed a motion objecting to the
admission in evidence of the exhibits presented by C on the ground that
the same were heresay, self- serving, irrelevant and/or mere
photostatic copies of supposed originals which were not identified nor
produced in court. On January 30, 1966, the court issued an order
removing M as administrator. The order of the probate court removing
M is nullity because it was issued by the judge thereof without affording
M the full benefit of a day in court, thus denying him of his cardinal
right to due process. The probate court issued said order without giving
M the opportunity to adduce evidence despite his explicit reservation
that he be afforded the chance to introduce evidence in his behalf in
the event of denial of his motion to dismiss and/or demurrer to
evidence. such act constitutes grave abuse of discretion which dooms
the order as a nullity. In fact, even without the reservation of M, it was
the bounded duty of the probate judge to schedule the presentation
and reception of evidence before disposing of the case on the merits
because only the movant C at that time had presented evidence.
Q Is adverse interest a ground for removal?
A The appointment of an administrator may be revoked by reason of his
adverse interest to that of the estate and the interested parties which
makes him unsuitable for the trust. (Degala vs. Ceniza) Conflict
between the interest of the executor and the interest of the deceased is
ground for removal or resignation of the former who has thereby
become unsuitable to discharge the trust.
56 |
Note:(The(position(of(the(administrator(is(one(of(confidence(and(when(
the( court( finds( that( the( administrator( is( not( entitled( to( such(
confidence,( it( is( justified( in( withdrawing( the( appointment( and( giving(
no(valid(efficacy(thereto.((Cobarrubias!vs.!Dizon)(
-There must be evidence of an act or omission on the part of the
administrator not conformable to or in disregard of the rules or orders of
the court which it deems sufficient or substantial to warrant the removal
of the administrator. (Gonzales vs. Aguinaldo)
SANTIAGO DEGALA vs. CFI Judge PATRICIO C. CENIZA and
VALENTIN UMIPIG, as special administrator of the estate of
Placida Mina
G.R. No. L-1320
July 30, 1947
FACTS:
Valentin Umipig was appointed special administrator of the estate of
the deceased Placida. In original action for certiorari, the petitioner
Santiago Degala complains of, and seeks relief from, the failure or
refusal of Judge Patricio C. Ceniza, to remove said special administrator.
Degala was claiming that Valentin Umipig
1) has an interest adverse to the estate under administration.
2) is a stranger to the estate, not being in any way a beneficiary under
the alleged will of Placida Mina.
3) has failed to include in his inventory some properties belonging to
the estate.
4) has failed to pay certain taxes due from the estate.
5) has failed to render an accounting in spite of orders of the court.
Degala invokes section 2 of Rule 83, which provides that "if an
executor or administrator neglects to render his account and settle the
estate according to law, or to perform an order or judgment of the court,
or a duty expressly provided by these rules, or absconds, or becomes
insane, or otherwise incapable or unsuitable to discharge the trust, the
court may remove him, or, in its discretion, may permit him to resign."
ISSUE/S:
Whether Degalas claims have bases
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
HELD:
NO. The removal of an administrator lies within the discretion of the
court appointing him. The sufficiency of any ground for removal should
thus be determined by said court, whose sensibilities are, in first place,
affected by any act or omission on the part of the administrator not
conformable to or in disregard of the rules or the orders of the court. We
cannot merely substitute our way of thinking for that of a lower court in
matters under its discretionary power. And in the case at bar, we cannot
hold that the respondent Judge gravely abused his discretion, particularly
in view of the circumstance that the alleged grounds for removal are not in
fact weighty.
Just because Jesus Q. Quintillan, former administrator removed by
the court on the ground of adverse interest, is the attorney for Umipig, the
latter is necessarily disqualified on the same ground. Any interest which
said attorney may have is exclusively personal to him, in which the
respondent Valentin Umipig can have nothing to do.
Umipig is not a stranger since he is representing his deceased father
Crisanto as a trustee.
Whether Umipig failed to include in his inventory some properties
belonging to the estate, is question of fact to be determined by the
respondent Judge after the reception of necessary evidence. Indeed, in the
order of the CFI, the clerk of said court was commissioned to receive
evidence which the oppositors, one of whom is the petitioner, may have
regarding the point.
The failure to pay all taxes due from the estate may only be due to
lack of funds, and not to a willful omission.
Regarding Umipigs alleged failure to render an accounting, it appears
that he did so on January 28, 1947. Whether the statement of accounts
was filed on time and whether the same is complete and correct, are
matters addressed to the judgment and discretion of the respondent
Judge.
57 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
death, resignation, or removal of a former executor or administrator,
shall have the like powers to collect and settle the estate not
administered that the former executor or administrator had, and may
prosecute or defend actions commenced by or against the former
executor or administrator, and have execution on judgments recovered
in the name of such former execution or administrator. An authority
granted by the court to the former executor or administrator for the sale
or mortgage of real estate may be renewed in favor of such person
without further notice or hearing.
Q What does Section 4, Rule 82 provide?
A Section 4, Rule 82 provides for the powers of a new administrator or
executor who has been appointed as such due to the revocation of
former letter or the death, resignation, or removal of the former
executor or administrator, to wit:
1. to have like power to collect and settle the estate not
administered that the former executor or administrator had;
2. to prosecute and defend actions commenced by or against the
former executor or administrator; and
3. to have execution on judgments recovered in the name of such
former execution or administrator
! However, before a new executor or administrator may exercise the
power to sell or mortgage real estate, which power had been granted to
the former executor or administrator, the same must be renewed in
favor of the new executor or administrator. In renewing such power,
further notice of hearing is no longer necessary.
Q With respect to the right of an administrator to dispose of real
properties of the estate, assuming the administrator is
removed, what is the right of the new administrator to
continue the transaction (e.g. pending negotiation for
mortgage)?
A The new administrator will continue the negotiations initiated by the
former administrator.
Q Must this new administrator secure another authority from the
court?
A YES.
Q Must there be a hearing?
A NO hearing is required if the new administrator merely continues the
acts of administration. But he must secure authority from the court to
continue these negotiations.
Inventory( and( appraisal( must( be( made( within( 3( months( from( the(
grant(of(letters(testamentary(or(of(administration.(
The(threedmonth(period(is(not(mandatory.(The(fact(that(an(inventory(
was( filed( after( the( threedmonth( period( would( not( deprive( the(
probate( court( of( jurisdiction( to( approve( it.( However,( an(
administrators( unexplained( delay( in( filing( the( inventory( may( be( a(
ground(for(his(removal.((Sebial!vs.!Sebial)(
However,(an(administrators(unexplained(delay(in(filing(the(inventory(
may(be(a(ground(for(his(removal.((id.)(
Although(the(administrator(is(not(chargeable(with(the(administration(
of(the(estate(which(has(not(come(to(his(possession,(he(is,(however,(
accountable( for( a( true( and( complete( inventory( of( all( the( property(
belonging(to(the(state(which(has(come(to(his(knowledge.((Chua!Tan.!
Vs.!Del!Rosario)(
(
Q Is inventory and appraisal conclusive of the value of the
estate?
A NO. The inventory and appraisal, when regularly returned, while
generally treated as prima facie evidence of the value of the estate, is
NOT CONLCUSIVE, either as against 3rd persons or the executor or
administrator. Even a decree of the court accepting the inventory will
not be conclusive upon the executor or administrator.
Q Who determines what property should be included in the
inventory?
A For purpose of determining whether a certain property should or
should not be included in the inventory, the probate court may pass
upon the title of such properties.
Q What is the nature of such determination by the probate
court?
A The probate court can only make a prima facie determination of
whether certain property, claimed by other persons is considered part
of the estate for the purpose of determining whether it should be
included or excluded from the inventory. Said determination is not
final in nature and cannot prejudice the right of interested parties in a
proper and separate action to determine actual title.
Q Why is such determination by the probate court provisional in
character?
A Under these rules, the probate jurisdiction of probate courts relates
only to matters having to do with the settlement of the estates and
probate of wills of deceased persons, appointment and removal of
guardians and trustees, and the powers, duties and rights of
guardians and wards, trustees, and cestuis que trust, etc. as may be
seen, the law does not extend the jurisdiction of a probate court to
the determination of questions of ownership that arise during the
proceeding. Such questions must be submitted to the court in the
exercise of its general jurisdiction, (Adapon vs. Maralit)
! The mere fact that one of the parties is the executor or administrator
of the estate does not confer upon the probate court exclusive
jurisdiction to decide all questions that may arise between said
executor or administrator and 3rd persons as to the title of a specific
property.
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
assets, nor administered as such, and shall not be included in the
inventory.
Q What should not be included in the inventory?
A The following should be included in the inventory:
1. wearing apparel of the surviving spouse
2. wearing apparel of the minor children;
3. marriage bed and bedding; and
4. such other provisions and articles as will necessarily be
consumed in the subsistence of the family of the deceased.
Sec. 3. Allowance to widow and family. - The widow and minor or
incapacitated children of a deceased person, during the settlement of the
estate, shall receive therefrom, under the direction of the court, such
allowance as are provided by law.
Allowance( ( refers( to( the( monetary( advances( which( are( subject( to(
collation( and( are( likewise( deductible( from( their( share( in( the( estate( of(
the(decedent.(
(
or
RULE 84
GENERAL POWERS AND DUTIES OF EXECUTORS
AND ADMINISTRATORS
Sec. 2. Executor or administrator to keep buildings in repair. An executor or administrator shall maintain in tenantable repair the
houses and other structures and fences belonging to the estate, and
deliver the same in such repair to the heirs or devisees when directed so
to do by the court.
Sec. 3. Executor or administrator to retain whole estate to pay
debts, and to administer estate not willed. - An executor or
administrator shall have the right to the possession and management of
the real as well as the personal estate of the deceased so long as it is
necessary for the payment of the debts and the expenses of
administration.
Q What are the general powers and duties of an executor or
administrator?
A The following are the general powers and duties of an executor or
administrator:
1. he shall, at all times, have access to and may examine and
take copies of books and papers relating to the partnership
business, and may examine and make invoices of the property
belonging to such partnership
2. maintain in tenantable repair the houses, and other structures
and fences belonging to the estate, and deliver the same in
such repair to the heirs or devisees when directed to do so by
the court;
3. to make improvements on the properties under administration
with the necessary court approval except for necessary
repairs; and
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
4. he shall have the right to the possession and management of the
real as well as the personal estate of the deceased so long as it
is necessary for the payment of the debts and the expenses of
administration.
Q In general, what acts may the executor or administrator validly
perform?
A The executor or administrator has the power of administering the estate
for the purposes of liquidation and distribution. He may, therefore,
exercise all acts of administration without special authority of the court.
Q Can the executor or administrator lease any of the properties
of the estate under his administration? Does he need court
approval to do so?
A YES. The contract of lease, being a mere act of administration, could
validly be entered into by the executor or administrator within his power
of administration even without the courts previous authority. (De
Hilado vs. Nava)
Q May the probate court interfere or annul such contract of lease
if entered into without its intervention?
A NO. The probate court has no power to annul or invalidate the contract
in the settlement proceedings wherein it had no jurisdiction over the
person of the lessee. A separate ordinary action is necessary to that
effect. (De Hilado vs. Nava)
Q If the lease is to be recorded in the Registry of Property, is
judicial approval necessary?
A NO. While it is true that under Article 1647 of the NCC, when lease is to
be recorded in the Registry of Property, it cannot be constituted without
special authority as far as the husband is concerned with respect to the
wifes paraphernal real estate, the father or guardian as to the property
of the minor or wards and manager without special power.
nevertheless, Section 3, Rule 85 grants to the executor or administrator
the power of administering the estate of the deceased and he may
exercise all acts of administration without special authority of the Court
and this includes leasing the property whether it is to be recorded in the
Registry of the Property. (San Diego vs. Nombre)
Q If the lease is for a period exceeding 1 year, is judicial approval
necessary?
A NO. Under Article 1878 of the NCC on Agency, special powers of
attorney are necessary to lease any real property to another person for
more than 1 year. But an executor or administrator is NOT AN AGENT.
While it may be admitted that the duties of a judicial administrator and
an agent are in some aspects identical, the provisions on agency should
not apply to a judicial administrator.
JUDICIAL ADMINISTRATOR
Appointed by the court.
He is not only the representative
of said court, but also the heirs
and creditors of the estate.
Before entering into his duties, he
is required to post a bond.
Acts of a judicial administrator are
subject to specific provisions of
law and orders of the appointing
court.
AGENT
By agreement
only answerable to his principal.
No bond required.
The protection which the law
grants the principal, in limiting the
powers and rights of the agent,
stems from the fact that control by
the principal can only be through
agreements
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
only the estate but also the parties interested therein, that they are
required to file a bond and that their acts are subject to specific
provisions of the law and orders of the probate court, which
circumstances are not true with respect to agents.
(
The( right( of( an( executor( or( administrator( to( the( possession( and(
management( of( the( real( and( personal( properties( of( the( deceased( is(
NOT(absolute(and(can(only(be(exercised(so(as(long(as(it(is(necessary(for(
the(payment(of(the(debts(and(expenses(of(the(administration.((Estate!
of!Hilario!Ruiz!vs.!CA)(
An( administrator( of( an( estate( cannot( exercise( the( right( pf( legal(
redemption(over(a(portion(of(the(property(owned(in(common(sold(by(
one( of( the( other( codowners( since( this( is( not( within( the( powers( of(
administration.((Caro!vs.!Court!of!Appeals)(
Where( the( estate( of( a( deceased( person( is( already( the( subject( of( a(
testate( or( intestate( proceeding,( the( administrator( cannot( enter( into(
any( transaction( involving( it( without( any( prior( approval( of( the( Court.(
(estate!of!Olave!vs.!Reyes)(
(
RULE 85
ACCOUNTABILITY AND COMPENSATION OF EXECUTORS
AND ADMINISTRATORS
Sec. 1. Executor or administrator chargeable with all estate and
income. - Except as otherwise expressly provided in the following
sections, every executor or administrator is chargeable in his account
with the whole of the estate of the deceased which has come into his
possession, at the value of the appraisement contained in the inventory;
with all the interest, profit, and income of such estate; and with the
proceeds of so much of the estate as is sold by him, at the price at
which it was sold.
Q What is the extent of an executors or administrators
accountability?
A The administrator or executor is accountable for the WHOLE OF THE
ESTATE of the deceased which has come into his possession but not for
the estate which he has never possessed.
! As distinguished from his duty to present an inventory, the
administrator or executor is accountable for a correct and complete
inventory not only of all the property of the estate which has come into
his possession but also of all the property which has come to his
knowledge.
Except,(
,
He(is(not(accountable(for(properties(which(never(came(to(his(
possession.(
Exception,to,the,exception,(
(
When( through( untruthfulness( to( the( trust( or( his( own( fault( or(
for(lack(of(necessary(caution,(the(executor(or(administrator(failed(to(
recover(part(of(the(state(which(came(to(his(knowledge.(
Q When is the administrator or executor accountable even for
properties he has never possessed?
A If the administrator or executor failed to take possession of the
property through his fault, as where through negligence, no action has
been brought for recovery, he is accountable for the property so lost.
Q If the executor is in Manila and the real property is in Cebu,
how can the executor take possession?
A The executor can take possession of the property in Cebu by an
annotation lis pendens on the TCT of the real property. Generally,
however, the court already has jurisdiction over the real property, but
the annotation of lis pendens would serve as further protection.
Sec. 2. Not to profit by increase or lose by decrease in value. No executor or administrator shall profit by the increase, or suffer loss by
the decrease or destruction, without his fault, of any part of the estate.
He must account for the excess when he sells any part of the estate for
61 |
more than appraisement, and if any is sold for less than the
appraisement, he is not responsible for the loss, if the sale has been
justly made. If he settles any claim against the estate for less than its
nominal value, he is entitled to charge in his account only the amount he
actually paid on the settlement.
Q What is the extent of the accountability of the administrator
or executor?
A The administrator or executor is chargeable with the estate in such
conditions as it is found, and not in that as the heirs and creditors
desire it to be. While on the other hand, he shall not profit by the
increase of the estate. Then again, he shall not be held liable for any
decrease which the estate, without his fault, might have sustained. In
addition, it is the duty of the administrator or executor to handle and
marshal the assets of the estate in a business like manner. He is
liable for any unreasonable or unnecessary delay in the settlement
and closing of the estate. Of course, the law does not impose upon
the administrator a high degree of care in the administration of the
estate, but it imposes upon him ordinary and usual care for the want
of which he is personally liable.
Q Is the administrator liable for loss of personal properties
under his administration through fortuitous event?
A NO. An administrator in administration proceeding is not liable for the
loss, by fortuitous event, of the property under his administration in
the absence of proof that said loss was due to his negligence. (Garcia
vs. Escudero)
Q How does one make the executor liable?
A The executor could be made liable by going against his bond.
Q How does one go against the bond filed by the executor?
A One could go against the bond by applying to the court which granted
the letters of testamentary for the application of the bond.
Sec. 3. When not accountable for debts due estate. - No executor
or administrator shall be accountable for debts due the deceased which
remain uncollected without his fault.
Q What kinds of debts are contemplated by Section 3, Rule 85?
A The debts contemplated by Section 3, Rule 85 are confined to money
claims.
Q If there is a mortgage to be foreclosed and the administrative
was not able to foreclose the same and a loss to the estate
results, is this the debt contemplated by Section 3, Rule 85?
A NO. The debts contemplated by this provision are confined to MONEY
DEBTS.
Q Is the administrator or executor accountable for uncollected
debts?
A NO. The administrator or executor shall not be accountable for
uncollected debts due to the deceased without his fault. However,
whether the debts remain uncollected without the executors or
administrators fault must be shown by him. The presumption being
that the debt could have been collected, for such is the natural course
of things, and in the absence of proof to the contrary, he is
accountable therefor.
Q Is the administrator or executor accountable for debts which
are uncollected due to his fault?
A YES because there is prima facie presumption of fault on his part.
Sec. 4. Accountable for income from realty used by him. - If the
executor or administrator uses or occupies any part of the real estate
himself, he shall account for it as may be agreed upon between him and
the parties interested, or adjusted by the court with their assent; and if
the parties do not agree upon the sum to be allowed, the same may be
ascertained by the court, whose determination in this respect shall be
final.
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q Can an administrator be a lessee of the estate he is
administering?
A YES by virtue of Section 4, Rule 95. There is, however, a qualification to
this rule. If the administrator was the original lessee before he was
named as administrator, then the lease is perfectly valid. However, if
the lease was constituted during the pendency of his administration,
then it could not be allowed because it would amount to self dealing.
This situation would now come within the realm of auto- contracts.
Furthermore, the wording of Section 4, Rule 85 is in the present tense
as can be gleaned from the use of the word uses or occupies
Q Reconcile the provisions of the NCC (Articles 1491 and 1646)
with this section.
A Contracts for occupation should not be for lease. Contracts of bailment
should not be between the administrator and himself as for the
payment of a debt to him.
! Section 4 is just a reproduction of the Code of Civil Procedure without
taking into account the provisions of the Civil Code. Atty. Gesumundo
was confusing at this point.
Sec. 5. Accountable if he neglects or delays to raise or pay
money. - When an executor or administrator neglects or unreasonably
delays to raise money, by collecting the debts or selling the real or
personal estate of the deceased, or neglects to pay over the money he
has in his hands, and the value of the estate is thereby lessened or
unnecessary cost or interest accrues, or the persons interested suffer
loss, the same shall be deemed waste and the damage sustained may be
charged and allowed against him in his account, and he shall be liable
therefor on his bond.
Q What is the liability of an administrator or executor who
neglects or delays to raise or pay money?
A It shall be deemed waste and the damage sustained may be charged
and allowed against an administrator or executor in his account and he
shall be liable therefore on his bond when
1. neglects or unreasonably delays to raise money by
(a) collecting the debts or
(b) selling the real or personal estate of the deceased, or
2. neglects to pay over the money he has in his hands, and
(a) the value of the estate is thereby lessened or
(b) unnecessary cost or interest accrues, or
(c) the person interested suffers loss.
Q Who has the right to run after the administrator or executor?
A The heirs, devisees, legatees and the creditors have a right to run after
the administrator or executor.
Sec. 6. When allowed money paid as costs. - The amount paid by
an executor or administrator for costs awarded against him shall be
allowed in his administration account, unless it appears that the action or
proceeding in which the costs are taxed was prosecuted or resisted
without just cause, and not in good faith.
Q What costs may the administrator or executor charge against
the estate?
A Generally, costs charged or allowed against an administrator or
executor in actions brought or prosecuted by or against him should be
paid out of the estate of the deceased, unless he acted in bad faith. In
other words, they are costs of litigation.
Q What costs may not be charged by the administrator or
executor against the estate?
A In actions brought by the administrator or executor which is more for
his personal benefit than for that of the estate, as when he contests the
allowance of the will or is sued for attorneys fees or brings litigation for
the deliberate purpose of defrauding the heirs for his own benefit, costs
should be personally borne by him.
Q How would money paid as costs be allowed?
A These costs must have been incurred in good faith.
62 |
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
Q What other expenses cannot be considered necessary expenses
for administration?
A The following cannot be considered as necessary expenses for
administration:
1. expenses incurred by a presumptive heir for her appearance and
that of her witnesses at the trial to oppose the probator of an
alleged will;
2. expenses for the settlement of the question as to who are
entitled to the estate left by the deceased;
3. expenses incurred by an executor or administrator to procure a
bond.
4. Personal expenses of the occupant of the heir of the family
residence, e. g. salary of the household help, light and water
bills, cost of gas, oil, etc.
5. Expenses for stenographic notes, unexplained representation
expenses.
! However, expenses for the renovation and improvement of the family
residence, incurred to preserve the family home and to maintain the
familys social standing in the community, are allowable as legitimate
administration expenses of the estate of the deceased. But the living
expenses of an heir occupying the family residence are not legitimate
administration expenses of the estate of the deceased.
Q When may attorneys fees be allowed?
A Attorneys fees may be allowed as expenses of administration when the
attorneys services have been rendered to the executor or administrator
to assist him in the execution of his trust.
Procedure&for&Collection&of&Attorneys&Fees&
(1)( Request( the( administrator( to( make( payment( and( file( an( action(
against(him(in(his(personal(capacity(and(not(as(administrator(should(he(
fail(to(pay;(or(
(2)(Petition(in(the(testate(or(intestate(proceeding(asking(the(court,(after(
notice( to( all( persons( interested,( to( allow( his( claim( and( direct( the(
administrator(to(pay(it(as(an(expense(of(administration.(
Whatever(course(is(adopted,(the(heirs(and(other(persons(interested(in(
the(estate(will(have(the(right(to(inquire(into(the(value(o(the(services(of(
the( lawyer( and( on( the( necessity( of( his( employment.( (Occena! vs.!
Marquez)(
The(award(of(the(probate(court(in(this(regard(is(appealable(by(Record(
on(Appeal.((Gonzales!vs.!Orense)(
(
Q Who is directly liable for the payment of attorneys fees when
they are due?
A Since the service for which attorneys fees are claimed are supposed to
have been rendered to the executor or administrator to assist him in
the execution of his trust, the liability for the payment of such fees rests
on the executor or administrator. They attorney cannot hold the estate
directly liable for his fees. But if said fees were paid by the
administrator or executor and are beneficial to the estate and
reasonable, he is entitled to reimbursement from the estate. (Uy Tioco
vs. Imperial and Panis)
! In other words, it is the client who must shoulder the attorneys fees.
(Lacson vs. Reyes)
! Attorneys fees are also subject to certain standards, to wit:
1. they must be reasonable, that is to say, they must have a
bearing on the importance of the subject matter in controversy;
2. the extent of services rendered; and
3. the professional standing of the lawyer (Lacson vs. Reyes)
Q Can the administrator or executor seek reimbursement for all
attorneys fees incurred by him?
A Reimbursement can be had only if the fees paid were beneficial and
reasonable. The estate cannot be held liable for the costs of counsel
fees arising out of litigation between the beneficiaries thereof among
themselves or in the protection of the interests of particular persons or
in the favor of an administrator who brings litigation for his own benefit
and for the purpose of defrauding the heirs. (Dacanay vs. Hernandez)
63 |
General&Rule:((
(
Within( one& year( from( the( time( of( receiving( letters(
testamentary(or(letters(of(administration.(
Exception,(
Special Proceedings Reviewer: Devils notes + Herrera Book + San Beda Reviewer| Atty. Ronald Chua
(
An( extension( of( time( is( allowed( by( the( court( for( presenting(
claims( against,( or( paying( debts( of( the( estate,( or( for( disposing( of( the(
estate;( and( he( shall( render( such( further( accounts( as( the( court( may(
require(until(the(estate(is(wholly(settled.(
(
The( fact( that( the( final( accounts( had( been( approved( does( not(
divest(the(court(of(jurisdiction(to(required(supplemental(accounting(for,(
aside(from(the(initial(accounting,(the(Rules(provide(that(he(shall(render(
such(further(accounts(as(the(court(may(require(until(the(estate(is(wholly(
settled.(
(
Q Is the period of 1 year mandatory?
A The provision of Section 8, Rule 85 is merely DIRECTORY. But all
courts should exert themselves to close up estates within 12 months
from the time they are presented. Furthermore, where there have been
extensions of time for presenting claims against or paying the debts of
the estate, or for disposing of the estate, the court may direct a period
longer than 1 year.
Q If the administration of the estate has ceased as the heirs have
agreed to a partition of the estate, is the administrator still
bound to render an accounting?
A YES. The duty of an administrator to render an accounting is NOT A
MERE INCIDENT of an administration proceeding, which can be waived
or disregarded when the same is terminated. It is a duty that has to be
performed and duly acted upon by the court before the administration
is finally ordered closed or terminated. The fact that all the heirs of the
estate have entered into an extrajudicial settlement and partition in
order to put an end to their differences cannot in any way be
interpreted as a waiver of the objections of the heirs to the accounts
submitted by the administrator or a release of the latters obligation to
prove his accounts. (Joson vs. Joson)
Sec. 9. Examination on oath with respect to account. - The court
may examine the executor or administrator upon oath with respect to
every matter relating to any account rendered by him, and shall so
examine him as to the correctness of his account before the same is
allowed, except when no objection is made to the allowance of the
account and its correctness is satisfactorily established by competent
proof. The heirs, legatees, distributees, and creditors of the estate shall
have the same privilege as the executor or administrator of being
examined on oath of any matter relating to an administration.
(
Examination&may&be&Dispensed&with&When:(
(1)(No(objection(is(made(to(the(allowance(of(the(account;(and(
(2)(Its(correctness(is(satisfactorily(established(by(competent(proof.(
(
Q What can the court do to verify the accounting done by the
executor or administrator?
A The court may examine the executor or administrator under oath in
order to verify the accounting he has done. The same privilege shall be
extended to the heirs, legatees, distributes, and creditors.
Q Who will conduct the examination of the executors or
administrators?
A The probate court or any lawyer or interested party may conduct the
examination.
Sec. 10. Account to be settled on notice. - Before the account of an
executor or administrator is allowed, notice shall be given to persons
interested of time and place of examining and allowing the same; and
such notice may be given personally to such persons interested or by
advertisement in a newspaper or newspapers, or both, as the court
directs.
Q How will the court call the executor or administrator?
A Notice may be sent to the executor or administrator or to the interested
parties.
Sec. 11. Surety on bond may be party to accounting. - Upon the
64 |