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BLESSED ARE THE HEARTS THAT BEND, THEY SHALL NEVER BE BROKEN St. Francis de Sales

SPECIAL CIVIL ACTION

* IN BP 129: RULE ON JURISDICTION:
- There are no deviations at all insofar as special civil actions are
concerned;
- Special Civil Actions (SCA) are also covered by the rule on
jurisdiction governing civil cases.
- The changes and deviations pertains SOLELY TO PROCEDURAL
MATTERS.
(MAST: Q: It seems that the general rule is that the rule on
jurisdiction provided in the Rules of Court applies. I am just curious
of the annotation of Regalado on the fact that Rule 64 is cognizable
only by the SC and not concurrent with the CA and RTC, it being just
a petition in the nature of Rule 65 which in BP 129 is concurrent.
Does this mean that a mere procedural rule can alter a substantive
law providing for the jurisdiction of courts?)
* General Rule: The ordinary rules of procedure also apply to
special civil actions.
- Exception: There are some deviations from the rules that apply
solely to special civil actions;
- These deviations from the Rules apply individually to each and
every special civil action that is described in the Rules of Court;
-Nota Bene (Note very well):
SO, ONE HAS TO INQUIRE INTO EACH AND EVERY SCA AND
DETERMINE THE FEATURE WHICH JUSTIFIES THEIR CLASSIFICATION
AS A SCA.
* Webster Dictionary defines special as something having a
particular purpose. Therefore, special civil actions being special
have always a procedural deviation.

RULE 62- INTERPLEADER

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* ORDINARY CIVIL ACTION FEATURES (OCAF):
- There is a plaintiff and there are defendants;
- Commences with the filing of the complaint, which is the general
rule concerning all civil actions;
- Rule 16, motion to dismiss applies of course to all civil actions as
long as any of the grounds in Rule 16 is evident;
(MAST: Do we apply the rule on lack of prior barangay conciliation;
or arbitration when stipulated; or confrontation of family members
as grounds for dismissal? Do we also invoke the ground of lack of
cause of action or extinguishment of the obligation there being no
cause of action in the first place?);
- We also apply the rules on appeal.
* SPECIAL CIVIL ACTION FEATURES (SCAF):
1. Is one civil action where the plaintiff is given the prerogative not
to allege the cause of action (SEE Rule 2), because the plaintiff does
not have a right that has been violated by the defendants, or if he
has a right that right is not disputed by the defendant;
2. We NEED at least two defendants (MAST: reason: because of the
nature of this particular SCA which is to decide who is entitled to the
property or right between two or more defendants, thus according
to JARA: the plaintiff is COMPELLED BY LAW to implead as
defendants all the claimants to the property.)
3. In interpleader the defendant declared in default automatically
loses the case unlike the situation in Rule 9 on partial default (MAST:
Note that in that Rule particularly Section 3, the requirement is that
there should be a common cause of action against the defendants)
where there are two or more defendants impleaded in the same
case: generally a decision in favor of the answering defendant will
also be favorable to the non-answering defendant although the
non-answering defendant has been previously declared in default.
(MAST: Is this regardless of whether or not there is a common cause
of action against the defendant? There should be a common cause
of action in partial default contemplated under Rule 9. This situation
is impossible in interpleader since there is actually no cause of
action in interpleader. Inquiring further, let us say that there is a
pair of defendant which claims to have a common right over a
property against another pair {meaning d1 and d2; d3 and d4} how
will that be resolved if we file an interpleader?);
NOTE:
Observe the procedural deviation in interpleader when the

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parties are plaintiff vs defendant 1 and defendant 2; and compare
this with the case of plaintiff vs defendant 1 and defendant 2 in
ordinary civil action (SEE Rule 9 Sec 3 c). One will immediately see
that in interpleader, there is no such thing as partial default as
contemplated in ordinary civil action, aside from the fact that there
is no common cause of action against defendant 1 and defendant 2
in case of interpleader. Moreover, since there is in fact no cause of
action in interpleader, it is impossible for them to share a common
defense.
4. Aside from the grounds enumerated in Rule 16, there is another
ADDITIONAL ground in interpleader, the defendant in interpleader
may file a motion to dismiss founded on the IMPROPRIETY OF THE
FILING OF THE COMPLAINT FOR INTERPLEADER;
* MAST: REGALADO: Under Sec 5, each claimant shall file an answer
and serve a copy;
* The Supreme Court has emphasized that interpleader cannot be
availed of in an independent and separate complaint AFTER one of
the claimants has filed a complaint for the recovery of possession of
the property in the custody of the warehouseman. Although the
Supreme Court said that interpleader could be set-up as a
counterclaim in the answer;
NOTE:
If there is already an ordinary civil action against the
warehouseman, he cannot thereafter file a separate interpleader
action. This is because to do so would result to the dismissal of the
separate special civil action on the ground of absence of cause of
action or impropriety of the complaint for interpleader.
- There is nothing in the Rules which prohibits the filing of a
counterclaim against the original plaintiff and also against a
stranger to a case. All that the court will do is to issue a summons to
the stranger so that this stranger will be within the jurisdiction of the
court in so far as his person is concerned.(MAST: Rule 6 Sec 12)
(MAST: What if there is already an interpleader and one or both of
the complainants {defendants in the interpleader action} then
decided to file a separate and independent action for recovery of
property can this be done? How about setting up as counterclaim in
the interpleader action the recovery of the possession of property, is
that possible? The only answer I can give is that in the first question,
there will be litis pendentia. The absence of cause of action will not
prevent the application of the rule. What is important is that in
either case of interpleader and the subsequent action for recovery
of property, the result will be the same and one will be res judicata
on the other. There is a possibility of conflicting decisions. As to the
second question, I believe that such is possible since anyway he

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may indeed be the true owner and the warehouseman has
improperly initiated the special civil action.)
* With respect to jurisdiction it is settled that interpleader is one of
the SCAs which could be cognizable by an inferior court depending
on the value of the property involved. That is in accordance with BP
129.
(MASTER: Interpleader is obviously an action in personam.)
* SEE Warehouse Receipts Law;
* SEE Appendix of Forms: FORM 5: Answer with Counterclaim for
Interpleader:
This is the justification why counterclaim for interpleader is
possible. The appendix of forms is prepared by the Supreme Court
itself.
* In case of appeal we apply the ordinary rules.
RULE 63REMEDIES

DECLARATORY

RELIEF

AND

OTHER

SIMILAR

* There are 4 special civil actions in Rule 63:

1.
2.
3.
4.

Declaratory Relief
Quieting of title (Art. 476ff NCC)
Consolidation of ownership in case of sales (Art. 1607 NCC)
Reformation of instrument (Art. 1359ff NCC)

* It is not correct to assume that the actions covered by the phrase

other similar remedies are also covered by the procedure for
declaratory relief.
* The other similar remedies are not kinds of declaratory relief.
* THE OTHER SIMILAR REMEDIES, namely: quieting of title to real
property or remove clouds therefrom, consolidation of title, and
reformation of instrument. All of them need a CAUSE OF ACTION.
* OCAF:
* SCAF:
1. The court is given the prerogative to entertain or not to entertain
this petition if the court feels that the petition is not meritorious by
simply reading the allegations therein, the court has the authority to
dismiss the petition by refusing to entertain the petition UNLIKE in

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ordinary civil actions; ( MAST: Review: summons, answer, motion to
dismiss, non-waivable defenses, rule on summary procedure)(MAST:
Can we say that the Rules on summary procedure, special civil
actions or special procedure? Summary Procedure consists partly of
an ordinary civil action, specifically those of actions governing
recovery of claims of 100k or 200k. It just happened that it is an
ordinary civil action which is summary in nature. Part of the scope of
summary procedure is a special civil action which is FEUD.);
2. There is no cause of action (basis: if you read the Rules it is
essential that the petition must be filed before there is a breach or a
violation of the law or ordinance or the will or contract involved SEE
Sec 1);
3. Rule 39 on execution is not possible because what the court does
only in declaratory relief is to declare the rights and duties of the
parties in a contract in its judgment.
* We cannot expect the petitioner to pray for damages etc.
* Declaratory relief is not conjectural or anticipatory because the
filing of the petition for declaratory relief----because there is a threat
of a violation of a right even under a contract, or another instrument
or a law or ordinance.
* The purpose of declaratory relief is to stop a possible litigation.
* So the main purpose of the petitioner in declaratory relief is only
for the declaration of rights: of his rights and duties under the
contract or will; or any other instrument or a law or ordinance.
* If it is based on contract the party-defendant should be anyone of
the contracting parties, if it involves a law or ordinance, it should be
the public official who is in charge of executing the law or ordinance.
(MAST: So it seems that we call the one who filed as petitioner and
the one who should be impleaded as party-defendant? SEE Secs 2, 3
and 4)
* We still need a defendant in this special civil action SEE Sec 2.
* The actions covered by the phrase "other similar remedies" do not
follow the procedure for a petition for declaratory relief, the court is
duty bound to observe the procedure in ordinary civil actions. (SEE
Sec 5)
* The court can outrightly dismiss the petition in declaratory relief.
(SEE Sec 5)
* Compare declaratory relief with interpleader with regard to the

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power to outrightly dismiss or refuse to entertain. In interpleader,
the court cannot do this. (SEE Sec 4 Rule 62)
* The petition for declaratory relief is EXCLUSIVELY cognizable by the
RTC because the subject matter is incapable of pecuniary
estimation.(BP 129 Sec 19)
* The complaint for the quieting of title MAY NOT be exclusively
cognizable by the RTC. Under BP 129, actions involving title to or
possession of real property could be cognizable by both an inferior
court or by a RTC depending upon the assessed value of the real
property.
* WARNING: If you are asked the jurisdiction over a petition for
declaratory relief AND other similar remedies, do not jump
IMMEDIATELY to the conclusion that these PETITIONS are cognizable
by the RTC.
(MAST: How about consolidation of ownership in case of sales and
reformation of instrument, where do we file them? I think in case of
consolidation of ownership and in case of reformation of instrument
it is clear that they are actions not capable of pecuniary estimation.)
RULE 65 - CERTIORARI, MANDAMUS AND PROHIBITION
SEE: A.M. NO. 07-7-12-SC
RE: Amendments to Rules 41, 45, 58 and 65
NOTE: MAST: THE IMPORTANT AMENDMENTS IN RULE 65
- Sec 4:
: The phrase in the old version The petition shall be filed in the
Supreme Court.. was omitted in the present amendment.
Purpose of the amendment: To further bolster the policy of the
Supreme Court of discouraging parties to directly resort to it. The
Supreme Court remains to have jurisdiction over Rule 65, however,
since it has authority over procedural matters it can regulate the
direct filing of petitions before it. It does not violate the Constitution
because our fundamental law gives the power to the SC to make
amendments. The operative word in the Constitution is as the law
or the Rules may provide.
: This paragraph was added to the former provision:
In election cases involving an act or an omission of a municipal or
regional trial court, the petition shall be filed exclusively with the
COMELEC, in aid of its appellate jurisdiction.
(MASTER: What do you mean by in aid of appellate jurisdiction? It
means that the decision in the main case must in the first place be
appealable to the appellate court or within its appellate jurisdiction.

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Rule 65 is in aid meaning the grounds provided by the Rules are
present and the said exercise of appellate jurisdiction is not the
speedy remedy. Thus, when the main case is not appealable or if
appealable, the same is within the exclusive appellate jurisdiction of
a certain court, the petition could not be instituted for example with
the COMELEC as it would not thereby be acting in aid of its appellate
jurisdiction.)
- Sec 7:
: A second paragraph was added:
The public respondent shall proceed with the principal case within
ten days from the filing of the petition for certiorari with a higher
court or tribunal, absent a TRO or a preliminary injunction, or upon
its expiration. Failure of the public respondent to proceed with the
principal case may be a ground for an administrative charge.
Purpose of amendment: I believe that this is to avoid the delay that
a petition for certiorari might cause on the pendency of the principal
case or proceeding in question.
The possible sanction on the judge, in some way, cushions the
severe penalties on the lawyer availing of the remedy and the risk
he takes when he avails of this remedy.
- Sec 8:
: An additional sentence was added to the second paragraph:
In such event, the court may award in favor of the
respondent treble costs solidarily against the petitioner and counsel,
in addition to subjecting the counsel to administrative sanctions
under Rule 139 and 139-B of the Rules of Court.
: An additional third paragraph:
The Court may impose motu propio, based on res ipsa loquitur,
other disciplinary sanctions or measures on erring lawyers for
patently dilatory and unmeritorious petitions for certiorari.
: Purpose of amendment: It is obvious.
OTHER IMPORTANT AMENDMENTS
* RULE 45
Sec 1:
- The Court of Tax Appeals was included in the enumeration of
decisions of courts that can be elevated through petition for review
on certiorari;
- Another significant amendment is the express mention of the

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applicability of provisional remedies. There are two ways to avail of
provisional remedies under the amendment:
1. The petition under Rule 45 may INCLUDE an application for a writ
of preliminary injunction or other provisional remedies; (MASTER:
the provisional remedy here is embodied in the petition itself)
2. BY VERIFIED MOTION filed in the same action or proceeding at
any time DURING ITS PENDENCY;
* RULE 41:
- This ground was omitted from the former rule:
(a) An order denying a motion for new trial or reconsideration
Purpose of amendment: It appears that the ground was omitted
for the simple reason that it was redundant. If you will look at Rule
37 Sec 9, you can arrive at the conclusion that the omission did not
make the said omitted ground appealable. It remains to be NOT
APPEALABLE. If the intention was really to make it appealable, then
the Revision Committee should have also omitted Rule 37 Sec 9.
* RULE 58:
- There was an additional 5th paragraph:
The trial court, the CA, the Sandiganbayan or the Court of Tax
Appeals that issued a writ of preliminary injunction against a lower
court, board, officer or quasi-judicial agency shall decide the main
case or petition within six months from the issuance of the writ.
Purpose of the amendment: So that there will be no indefinite
suspension of the proceedings of the main case to the prejudice of
the parties.
DIFFERENCES: Rules 65, 45 and 64
I. Rules 64, 65 and 45 envisions different factual antecedents.
II.
* Rule 45 is a mode of appeal.
* Rule 64 is a mode for review from the decisions of the COA and
COMELEC. It is also a mode of review (MAST: like appeal) ALTHOUGH
the form and the requirements to be satisfied are those given in
Rule 65.
(MAST: So it seems that Rule 64 is not strictly a special civil action?
It is still a special civil action, even if it is actually a mode of review.
That does not change the fact that it has many procedural
deviations characteristic of a special civil action.)
NOTE:
Rule 64 is a mode of review but the mechanism is Rule 65.
The period to appeal (MAST: which is 30 days) should always be

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followed, even if the appellant has mistaken the period to be 60
days as in certiorari, the court will outrightly dismiss the appeal.
* Rule 65 is a special civil action.
III.
* The questions usually allowed under Rule 45 are questions of law
not necessarily related to jurisdiction of the court, AS LONG AS the
question involved is a question of law. (MAST: So it seems that when
the question is one of jurisdiction you can avail of either or both
remedies? One can only avail either remedies, this is because before
Rule 65 can be availed of there should be no plain, speedy or
adequate remedy in the ordinary course of law. Therefore ordinarily
when there is a question on jurisdiction we appeal, unless such
order disposing the question of jurisdiction is an interlocutory order
or a final order without prejudice, as the case may be.)
* NOTE: MEMORIZE the 11 instances where questions of law may be
raised in the SC.
* In Rule 65 (certiorari) the question that could be raised is ONLY a
question of jurisdiction. A question of jurisdiction is ALWAYS a
question of law.
IV.
* In Rule 45 it is expressly provided that the period could be
extended for another 30 days. SEE Sec 2; (MAST: Note the Fresh
Period rule in Neypes Case whenever there is a motion for new trial
and reconsideration)
* There is no mention in the Rules about the extension of the 60 day
period in Rule 65. (SEE recent amendment to Sec 4) ???
V.
* Generally, the availment of Rule 45 will stop the execution of the
order subject of the appeal. (MAST: Except execution pending
appeal. SEE Sec 2 Rule 39, and analyze Sec 1 Rule 39)
* In Rule 65 the filing of the petition does not stop the trial court
from going again with the case unless the court issues the writ of
preliminary injunction.
* So, while theoretically a petitioner is given the choice as to which
court will hear his petition for certiorari, this privilege is really
delimited by another principle contained in Rule 65, the principle of
hierarchy of courts. (SEE recent amendment to Sec 4)
* The purpose of the rule on Hierarchy of Courts is to discourage the
filing of certiorari to SC (MASTER: SEE Sec 4, 2nd paragraph as

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amended that omitted the SC altogether, to implement the policy
for the petitioner to choose either RTC or CA)
* Note Sec 4 of Rule 65.
* The dismissal of the petition for violation of the principle of
hierarchy of courts will not prevent the petitioner from filing a
similar petition before the proper court.
* SCAF:
A. The court is given the authority to outrightly dismiss the petition
just like declaratory relief;
B. The court does not issue summons, what the court issues is an
ORDER TO COMMENT addressed to the respondents;
C. The period to comment is fixed in the Order.
D. There is no such thing as declaration of default, the court will just
continue hearing the petition and the court will simply render a
judgment based on the petition filed by the petitioner.
- this is because under Rule 65 there is usually no factual issues
involved, the issues refer to issues of jurisdiction; (MAST: What are
the possible instances when there can be issues of fact?)
E. The public respondent though impleaded is not allowed to defend
himself openly. The duty to defend the public respondent lies upon
the private respondent;
* The public respondent must be impleaded but only as a nominal
party.
* Certiorari, prohibition and mandamus are three DISTINCT AND
INDEPENDENT petitions.
* The introduction of Rule 41 together with Art VIII Sec 5 of the
Constitution greatly broadened the application of Rule 65 and now
covers also final orders not only interlocutory orders.
* So Rule 65 (certiorari) is no longer limited to challenging
interlocutory orders. Final orders and even judgments could be
subject now of Rule 65, as could be gleaned from Rule 41 which
enumerates the instances when there could be no appeal.
(MAST: How about prohibition and mandamus, can they assail final
orders, judgments? Yes of course as long as the requisites under
Rule 65 Sec 2 and 3 are complied with in relation to Rule 41 as may
be appropriate. Rule 41 states the appropriate special civil action
as provided in Rule 65.)

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* According to the SC: There could be an award of damages in

certiorari and prohibition even if there is no express mention in the
Rules like that in mandamus. Thus the award of damages in
certiorari and prohibition is not expressly provided by the Rules, it is
given BY VIRTUE OF A COURT DECISION.
* Even if there is no express mention in Sec 1 and 2 on the award of
damages, the SC ruled that such award for damages is
contemplated by the broad concept of "incidental relief as law and
justice may require."
* The recovery of damages arising from the wrongful acts should be
incorporated. If it is not incorporated then it is barred by res
judicata. (SEE Rule 39 Sec 47 par. b)
Thus there can be no separate action for damages because
that will be in effect a splitting of a cause of action.
* The said award of damages may be executed through the use of
Rule 39. But generally we do not use Rule 39 to enforce this special
civil action. The proper remedy is contempt.
* Rule 65 is enforced by a petition for contempt.
* Correlate Rules 64, 41 and 16, 17 and 18
* In addition to the grounds enumerated in Rule 16, another ground
for a motion to dismiss is when petitioner violates the principle of
hierarchy of courts in Sec 4 Rule 65.
* Important to determine when it is with or without prejudice, for the
correct remedy.
* One could always file a complaint if the dismissal is without
prejudice.
* QUERY: When the MOTION TO DISMISS on ground of lack
jurisdiction is denied, which is an interlocutory order, and the
defendant really believes that there is lack of jurisdiction, what is
the remedy considering that in Rule 16 he will be required to
answer?
Petition for prohibition, is the correct remedy: to prohibit the
respondent court from proceeding, that is to stop requiring an
answer from defendant. To avoid answering, a provisional remedy
for the issuance of the writ of preliminary injunction may be applied
for in the petition for prohibition. The present practice is to file an
ANSWER AD CAUTELAM together with the petition under Rule 65. It
is called ad cautelam, because the answer is filed just to avoid being
declared in default and at the same time the answer will not be

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construed as a waiver. The filing of the answer ad cautelam will in
effect be just a precautionary measure. The remedy solves this
dilemma: If the defendant does not file an answer he may be
declared in default. If however he files an answer he may be
deemed to have impliedly waived the defense of lack of jurisdiction.
If instead of filing a petition for prohibition, the defendant files
a petition for certiorari, the SC ruled that the petition for certiorari
will be considered or treated as if a petition for prohibition. This is
because the requirements of the two remedies are practically
identical, thus the error will be disregarded.
RULE 66- QUO WARRANTO (QW)
* Under our new statutes, QW is a special civil action which is
cognizable by all courts even inferior courts. (MAST: Just like
contempt under Rule 71) QW proceeding involving public officials of
the barangay level are cognizable exclusively by inferior courts.
(MAST: Sec 191 Election Code; Sec 20 BP 222 Barangay Election
Law; Sec 8 RA 3590 Revised Barangay Charter: Will these laws
adopt the procedure in Rule 66? Probably, since they seem to be the
legal basis why the inferior court has jurisdiction over QW
proceedings.)
* The petition for QW is designed for the purpose of determining
who between the contestants is entitled to hold office, either a
CORPORATE OFFICE OR A PUBLIC OFFICE.
* SCAF:
1. This is one proceeding which violates the rule on splitting the
cause of action and there is no sanction for this splitting. The basis
is that once the court has decided that the plaintiff is entitled to a
particular office and the judgment becomes final, the law authorizes
the winning party to file a subsequent complaint for the recovery of
damages arising from the usurpation of that office.
(SEE Secs 10 and 11)
2. The court is given the prerogative to reduce the period for
pleading (this is not the case even in other SCAs)(SEE Sec 8)
* The petitioner really is not given much choice. He has to comply
with the principle of hierarchy of courts mentioned in Section 4 of
Rule 65 (Note that there is nothing mentioned about the
applicability of the principle of hierarchy of courts in the Rules. The
applicability of the principle has its origin in jurisprudence.);
* The difference between mandamus and quo warranto:
- Mandamus:
damages cannot be filed in a separate complaint;
- Quo Warranto: we allow a separate complaint for damages;

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* A relator can initiate a quo warranto proceeding, even without the

assistance of the Solicitor General. (MASTER: SEE Sec 5)
RULE 67- EXPROPRIATION
* SEE BP 129 Sec 39 on Multiple Appeals;
* The issue that may be resolved in any expropriation proceeding is
whether or not the plaintiff has the right to expropriate.
If that is the first issue, then that is really incapable of
pecuniary estimation. Once that issue is decided by the court,
then the court can go to the other principal issue which could be
related to the value of the property, so that regardless of the
assessed value of the real or personal property that is the subject of
expropriation, an expropriation case will always be cognizable by
the RTC.
* SCAF:
1. There is stage 1 and stage 2:
- stage 1: the adjudication by the court, as to whether the plaintiff
has the right to expropriate, after determination that the plaintiff
has right to expropriate;
- stage 2: the determination of just compensation;
2. The decision in Stage 1 is a final order or decision and therefore
appealable. The decision as to just compensation is another final
order or judgment, which is also appealable;
3. When the rules allow multiple appeals to be taken in one and the
same proceeding that means to say that the rules on appeal will be
different from ordinary civil action. Thus, the period to appeal is
extended to 30 days and there is another requirement for the
submission of the record on appeal.
4. One civil action which is not governed by Summary Procedure but
there are prohibited pleadings.
NOTE:
Reason why there are prohibited pleadings: The court is
authorized to determine title and other issues. There is no need for
the litigants to file claims, the court will see to it that the claims are
paid by just compensation whether or not they are involved in the
litigation. (MASTER: SEE Sec 9.)
5. Even if the defendant has previously been declared in default, he

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is still allowed to participate in the trial of the issue of just
compensation.
NOTE:
In so far as the first issue (the propriety of expropriation) is
concerned he is in default, but in so far as the second issue (just
compensation) is concerned he can participate in the trial.
6. Trial by commissioner is mandatory.
* SC decision: Even if the defendant has received the money
offered by the plaintiff, there is nothing that will prevent the
defendant from elevating the matter insofar as the propriety of the
expropriation is concerned.
* There can be an immediate issuance of writ of possession in
expropriation even before the defendant gives his side or is heard,
as long as the deposit required by law is given. This is a ministerial
duty on the part of the court. (MASTER: Sec 2 Rule 67)
* After control or taking of property, it cannot be dismissed since
there is a second stage.
* Even if there is an appeal of 1st stage, the 2nd stage could still
proceed.
* QUERY: In case that the property is in the possession of the
defendant but is in reality owned by national government, what is
the proper remedy?
Expropriation is proper. It can be filed against the
occupant or unlawful possessor, not only against the owner. This
remedy is more expedient and favorable to the government because
the complainant, the owner-national government in this case, can
immediately take possession of the property.
FEUD is also another option, but this is more tedious.
* Rule 36 on Separate Judgment VS Judgments rendered in
Expropriation Proceeding:
In Expropriation, both the judgment on the right to expropriate
and the judgment on accounting are appealable.
However, in separate judgments they are not appealable, if a
party wants to appeal, he must get the consent of the court. The
remedy is Rule 65. (SEE Rule 41 (f) as amended)
* In Rule 32 appointment of commissioner is also an incident of an
ordinary civil action.
The difference from expropriation is that, in
Rule 32 it is discretionary. The court moreover may motu propio
appoint commissioners, even if the parties object under certain

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instances. (SEE Sec 2 Rule 32)
However in expropriation, whether the parties object or agree,
it is mandatory.
* Rules on appeal:
- 30 days, record on appeal
* If on appeal the SC reversed the right to expropriate, the Rules
state that the trial court will see to it that the defendant is restored
to his property and will determine the amount of damages which is
expressly provided for in Sec 11.
* According to the SC, the complaint for damages arising from the
wrongful expropriation could be subject of a separate complaint. It is
allowed. The justification is that the defendant cannot file a
counterclaim being a prohibited pleading in Sec 3. So, there is really
nothing he can do in the expropriation case if the RTC did not award
damages pursuant to Sec 11.
We follow the same rule in Quo Warranto. There is no express
mention of this remedy in Rule 66, but there is nonetheless a
Supreme Court decision to support the remedy of a separate
complaint for damages.

RULE 68- FORECLOSURE OF REAL ESTATE MORTGAGE

I. Nature
* What is contemplated in the Rules is a JUDICIAL foreclosure of real
estate mortgage.
II. Chattel Mortgage
* This Rule has nothing to do with foreclosure of Chattel Mortgage.
* QUERY: How does a mortgagee foreclose chattel mortgage?
The recourse is to file a complaint for replevin. Once the
possession of personal property is recovered, then foreclosure may
commence.

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III. Extra-judicial Foreclosure
* Extra-judicial foreclosure of real estate mortgage is allowed ONLY if
the mortgagee is given a SPECIAL POWER OF ATTORNEY to foreclose
the mortgage extra-judicially in the Deed of real estate mortgage.
* A mortgage can never be a principal contract. A mortgage is
ALWAYS an ACCESSORY contract.
IV. Jurisdiction
* It is settled that regardless of the amount sought to be recovered,
a judicial foreclosure of mortgage is always cognizable by the RTC
EXCLUSIVELY.
- REASON: The first issue that will always be resolved when it comes
to judicial foreclosure of mortgage is this: Does the plaintiff have the
right to foreclose the mortgage? By itself alone, that question is not
capable of pecuniary estimation.
(MAST: What can defeat the right of the mortgagee to foreclose?)
V. Three Stages:
- 1st: determination by the court of whether the plaintiff has right to
foreclose;
- 2nd: foreclosure itself of mortgage;
- 3rd: concerned with recovery of deficiency, IF there is any; (MAST:
It is obvious that there could be a case where there will be two
stages only, if there is no deficiency.)
* The court can render three final decisions:
A. on the right to foreclose,
B. propriety or regularity of the foreclosure itself, and
C. the recovery of deficiency if there is any after the sale of the
property;
* This is one action which admits of multiple appeals.
* The rule is the same as in expropriation on multiple appeals. The
court can render three final decisions. The special civil action of
judicial foreclosure of real estate mortgage is MULTI-STAGED.
VI. Parties
* This is one of the few civil actions where the rules themselves tell

17
the petitioner who should be sued in court.
However, the only indispensable parties are the mortgagee,
who is of course the plaintiff in the case, the debtor and the
mortgagor. The other parties identified in the Rules are only
necessary parties.
A. Indispensable parties:
The SC held that the indispensable parties are: the borrowers,
mortgagor and of course the mortgagee (plaintiff). But the persons
having or claiming an interest in the property subordinate in right to
that of the holder of the mortgage, they are only necessary parties.
(SEE Rule 68 Sec 1)
B. Necessary Party
A person who has interest inferior to the foreclosing
mortgagee is only a necessary party.
NOTE:
If the mortgagee is ordered to implead a necessary party,
there will only be a waiver of rights of the plaintiff of any claim
against a necessary party not impleaded. (SEE Rule 3 Sec 9)
C. Important: Mortgage 1, 2 and 3:
* If the owner of the piece of land was able to mortgage his property
to three different mortgagees that simply means that he is able to
obtain a loan three times from three creditors.
Usually, the rule is mortgage 1 is superior to mortgage 2 and
3. However there is nothing wrong if mortgagee 3 will foreclose
ahead of mortgagee 1 and 2. As long as the obligation secured by
mortgage 3 matures ahead of 1 and 2. The rule is that all these
mortgages are valid being merely a lien or encumbrance upon
property.
* The debtor in a contract of loan could be different from the
mortgagor of the property.
* The only reason why the law requires that mortgagees 2 and 3
should be impleaded is for them to loose their right of redemption.
(MAST: Is it important to determine whether or not the principal
obligation has become due or not?)
* If one mortgages his car, a second or several times it is a criminal
act. But if one mortgages real property several times it is just fine,
as can be implied from Sec 1 on the concept of inferior lien holders.
* If Mortgagee 3 commences a special civil action for foreclosure he
need not implead Mortgagees 1 and 2. This is so, since each
mortgage is independent from each other. The interests of
Mortgagees 1 and 2 are superior (being prior liens). Even if the

18
property is sold in public auction and
confirmed, Mortgagee 1 and 2's interests
have to be annotated in the certificate of
why there is no need to implead them.
sufficiently protected.)

the sale subsequently

or lien on the property
sale. That is the reason
(MAST: Since they are

VII. Equity of Redemption

* The court will order to pay within a fixed period of time mentioned
in the Rules. This period is referred to in substantive law as the
equity of redemption.
* The equity of redemption continues to exist even if there is already
a public auction sale, it runs until confirmation of the sale.
* Resort to judicial foreclosure is avoided because of the possible
increase in period within which an equity of redemption may be
exercised. This is in view of the multiple appeals that are allowed.
The entry of judgment is the reckoning point of the 90-120 day
period. (SEE Sec 2)
* As long as there is an appeal in the 1st and 2nd judgment
(judgment on right of foreclosure and order on confirmation of sale
respectively), equity of redemption exists. Until the issuance of the
order of confirmation of public auction sale, the equity of
redemption still exists. There is no fixed term as long as there is an
appeal pending. The third stage, which is the recovery of deficiency,
may or may not exist. (MAST: Caveat: I cannot personally
understand what is meant by this paragraph.)
NOTE:
* In extra-judicial foreclosure there is such a thing as the right of
redemption. The right of redemption is the one given at Rule 39, for
mortgagors who are natural persons: within a period of one year
from the registration of the deed of sale.
* There is no right of redemption in Rule 68, even if we follow the
procedure on levy on execution of real estate sale in Rule 39.
VIII. Deficiency
* After the sale is confirmed then the court will determine whether
or not there is a deficiency. If there is, the court will order the debtor
to pay the deficiency which can be enforced under Rule 39.
* The mortgagor may use Rule 39 to levy on execution of other
properties belonging to mortgagor to get the deficiency.

19

* What the Civil Code refers to when it says that the deficiency is
not recoverable, is when there is chattel mortgage and the subject
loan is payable in installments.(SEE Recto Law: Art. 1484 NCC)
(MAST: It is reasonable to conclude that in case of loans not payable
in installments which are secured by chattel mortgage, deficiencies
are recoverable. Only a chattel mortgage securing a loan payable in
installments that recovery of deficiency is impossible.)
IX. Judicial Intervention in Extra-judicial Foreclosure
* In extra-judicial foreclosure, there is no court intervention AT THE
OUTSET. Everything is done through the sheriff of the court or the
clerk of court although under our present system, there should be
an application for extra-judicial foreclosure to be filed with the court.
* Even if the foreclosure is extra-judicial, there will be a court
intervention when it comes to the recovery of the foreclosed
property. Thus the highest bidder will file a motion for the issuance
of the writ of possession.
* ACT 3135: Real Estate Mortgage Law:
In Extra-judicial foreclosure because of the need for SPA, it is
really the mortgagor who decides in the deed of mortgage whether
that remedy can be availed of.
The statement in textbooks that there is no judicial
intervention in extrajudicial foreclosure is inaccurate. The
mortgagee will be eventually seeking the court. The mortgagee,
after the confirmation of sale, (in case he is the highest bidder) may
ask or petition the court for the writ of possession and control of the
collateral.
* The Extra-judicial mortgagee does not have to possess the
property. If he decides, he may file a petition with clerk of court of
the RTC or seek the assistance of a notary public. The clerk will raffle
the petition among the sheriffs. The sheriff will then prepare the
notice, then there will be a public auction. There will be issuance of
certificate of sale to the highest bidder. If no right of redemption is
exercised within the prescribed period, title will be consolidated.
The mortgagee may then move or a file a petition for the issuance
of the writ of possession.
The remedy is neither a special civil action nor an ordinary
civil action. The remedy is a mere motion, a petition which is
incident of a land registration proceeding. And the court has the
MINISTERIAL duty to grant the motion. The decision should be heard
ex parte. There is thus no need to notify the mortgagor.
X. Provisional Remedy

20

* Provisional remedy: receivership of the collateral. SEE Rule 59 Sec

1 (b).
* The mortgagee can move for writ of preliminary attachment. The
rules do not exclude this possibility as long as the requirements in
Rule 57 are complied with. Not over the collateral but over the other
properties of the mortgagor, remember that one of the allegations in
the application for writ of preliminary attachment is that there is no
sufficient collateral. SEE Sec 3 of Rule 57
* A complaint for foreclosure with the prayer for receivership (SEE
Rule 59 Sec 1 b) and writ of preliminary attachment is possible.
XI. Judgment by Default
* If the parties did not answer, follow the ordinary procedure. Thus
there could be a judgment by default ultimately.

RULE 69 - PARTITION
I. Nature
* The term partition connotes the idea of CO-OWNERSHIP among
several persons.
(MAST: Review Laws on Property {Art. 484ff NCC} and Wills &
Succession {Art. 1078ff NCC})
* If one of the co-owners wants to leave or get his portion over the
objection of other co-owners, he cannot be forced to remain in the
co-ownership. The co-owner who wants to leave may file this special
civil action. (MAST: What if two co-owners want to leave and three
do not want?) He must implead all other co-owners because they
are indispensable parties.
* The co-owners can agree among themselves voluntarily, BUT if
they cannot agree among themselves voluntarily, that is the time
that a court proceeding becomes necessary.
* The Rule contemplates a situation where the co-owners cannot
agree.
II. Amicable Partition
* Even if a complaint is already filed, there is nothing that will stop
the parties from voluntarily entering into a CONTRACT for partition
of the property.

21

* After the court determines that the co-owner has right to partition,
the court may then proceed to ask if the co-owners want to agree
on a partition. If they want to agree then there will be a deed of
partition. Thereafter the court will render judgment based on that
deed of partition executed amicably by the parties.
III. Commissioners
* But if they cannot agree, then the court shall appoint
commissioners. Partition is similar to expropriation in this matter.
(SEE Sec 2) (MAST: It seems that the appointment is also mandatory
by the use of the word shall) (MAST: Is this appealable? Probably
not, being an interlocutory order. The remedy is Rule 65.)
IV. Co-Owners: Indispensable Parties
* All the co-owners or co-owners pro indiviso should be impleaded
as INDISPENSABLE PARTIES. Failure to implead one will subject the
complaint to dismissal for failure to state a cause of action.
* When it comes to partition when there is a co-owner left out, the
judgment will never become final. And the only way to follow this
procedural principle is to allow the co-owner, who has not been
impleaded, to intervene in the proceeding even after the court has
rendered judgment. (SEE Rule 19)
V. Multiple Appeals
* Just like expropriation and foreclosure of real estate mortgage,
partition is a civil action which admits of multiple appeals. The
special civil action consists also of multiple stages.
VI. Other Matters
* Up to the last centavo there can be a division
* Stage of Accounting is another final judgment.

RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER

22
(FEUD)
I. Nature
* In both cases (forcible entry and unlawful detainer), the issue is
physical possession of the property. It does not involve real
possession of the property, that is, possession as a real right. It does
not involve ownership.
* Note that accion reinvindicatoria, accion publiciana may be tried
by the inferior court depending on the assessed value of the
property; and accion interdictal, the law vests exclusive original
jurisdiction to the inferior court regardless of the value of the
property and regardless of the monetary award which the plaintiff
seeks to recover: all these three actions could be cognizable by an
inferior court
* These two actions involve ONLY real properties:
- for the recovery of personal property, an action for replevin is the
proper action which can be filed in the RTC or MTC depending on the
value of the personal property determined by the plaintiff in his
complaint.
* The SC has repeatedly emphasized that in a complaint for forcible
entry, the plaintiff must allege in the complaint that he held PRIOR
PHYSICAL POSSESSION.
II. Issue of Ownership
* The issue of ownership will not be a justification of the court to
dismiss the complaint, but it is enough justification for the court to
rule on the issue of possession as well as the issue of ownership. But
when it comes to the issue of ownership, the finding of the court will
ONLY BE PROVISIONAL (a separate accion reinvindicatoria may later
be filed).
III. Demand
* The requirement of prior demand to pay and vacate may or may
not be jurisdictional when it comes to unlawful detainer:
A. Contract Existing and There is Violation
While contract still running, and there is failure to pay rental:
until the tenant receives from the landlord the demand to pay and
to vacate, the possession is still lawful; when such demand is
ignored then the possession becomes unlawful; thus IN THIS CASE
prior demand to pay and vacate is JURISDICTIONAL;

23
B. Contract Expired
If the contract of lease has already expired: NO NEED for prior
demand, a case for unlawful detainer can be filed;
C. Implied Lease
If there is an implied lease, that is, if within 15 days the lessor
fails to file a complaint, then the filing of the complaint after this 15
day period needs a prior demand to pay and vacate;
(MAST: This last case needs a clarification. The Jara Notes is very
misleading on this matter. It seems to appear that prior demand to
pay and vacate is necessary on the 16th day onwards without
qualification. BUT upon talking with Dean Jara, I had my
enlightenment. First point, upon failure to file a complaint for
unlawful detainer within 15 days after the expiration of the contract,
an implied new lease or tacita reconduccion as contemplated in Art
1670 of NCC arises. Thus, if for example the original contract is for
one year, then the 16th day is actually the first day of the new
year-long implied lease with same terms as the original contract.
The second point to consider: filing a complaint for unlawful
detainer after the lapse of 15 days needs a prior demand is
inaccurate. Prior demand to pay and vacate is necessary only if
there is non-payment of rentals within the implied lease contract OR
there is failure to comply with the terms of the contract which would
require them to vacate the premises. Thus, without any violation of
the new implied contract of lease by the lessee while the period of
the new implied contract of lease is still running, then no prior
demand is necessary because there is no cause of action in the first
place. Third and final point, prior demand is not necessary when the
said new implied lease expires. Thus, in our example after a year or
the expiration of the new implied lease period, prior demand to pay
and vacate is not necessary for filing the unlawful detainer case,
provided that the 15-day period has not lapsed. Again within 15
days and the lessor files no complaint, a new implied lease is
created subject to the rules discussed above.
NOTE:
According to the SC, the 1 year period can be reckoned from
the time of discovery, if there is forcible entry on the ground of
stealth or strategy. In all other instances we follow the general rule,
which is from unlawful possession.
IV. Special Civil Action: Reason
* QUERY: Why are forcible entry and unlawful detainer special civil
actions? Is it because they are governed by the Rule on Summary
Procedure (RSP)?
No. We have to look for a procedural deviation aside from RSP.
This is because recovery of loans in the amount of 100K or 200K as
the case may be, is also governed by RSP. Such another action

24
governed by the RSP remains to be an ordinary civil action though it
has deviations consistent with its summary nature. (SEE Rule on
Summary Procedure Sec 1 A)
V. Rule 16 and Affirmative Defenses
* The difference between ordinary procedure and RSP when it comes
to Rule 16 is that in RSP, it is the court that will motu propio dismiss
the case if any of the grounds is evident from the face of the
complaint. (SEE RSP Sec 4; Rule 70 Sec 5)
* The Rule on Summary Procedure does not prohibit the defendant
from filing an answer and in that answer, affirmative defenses are
set up and these affirmative defenses are those found in Rule 16.
( SEE Rule 70 Sec 6; RSP Sec 5)
VI. No Declaration of Default
* Note that there should not be a declaration of default, but the
plaintiff can simply file a motion for the rendition immediately of
judgment OR the court may motu propio render such judgment if
the defendant does not answer.
- such immediate judgment is justified because the pleadings must
be VERIFIED. (SEE Rule 70 Secs 4, 7 and 13; RSP Secs 3B, 6 and 19)
VII. Examination of Witnesses Not Followed
* The ONLY Rule on Evidence that is NOT followed when it comes to
FEUD is the EXAMINATION OF WITNESSES. (SEE Rule 70 Sec 10; RSP
Sec 9)
NOTE:
However, in criminal cases under RSP, the witnesses can be
compelled to go to court for the purpose of cross-examination. (SEE
RSP Sec 15)
VIII. Immediately Executory
* In addition to actions for injunction, receivership, accounting and
support (IRAS) in Rule 39 Sec 4 which are immediately executory,
we include FEUD. Meaning, a court has the ministerial duty to
execute the judgment. FEUD is covered by the statement and such
other judgments as are now or may hereafter be declared to be
immediately executory.
* But this rule on immediate execution in case of FEUD applies only
when the judgment is in favor of the plaintiff.
(MAST: Is this principle applicable also to IRAS?)

25

IX. Supersedeas Bond

* The SC has ruled several times that a supersedeas bond covers
ONLY the back rentals and damages awarded by the court. (Thus
attorneys fees are not covered.)(SEE Sec 19)
* The filing of a superdeas bond depends on the tenor of the
decision. The bond is only a guaranty that the plaintiff will
eventually recover the back rental awarded by the court in its
judgment. Thus if there is no back rental awarded, no supersedeas
bond is needed. (MAST: only deposit is needed)
X. Damages:
As to the question of whether damages in FEUD only includes
back rentals, Dean Jara said that the old cases say that it is only
limited to back rentals agreed upon or if there is no agreement,
payment for the use and possession of the premises. In Progressive
Development Corp, Inc. vs CA (301 SCRA 637) the SC however ruled
otherwise and announced that unliquidated damages may also be
awarded. When I asked him he said, that it is good if one will cite
and apply the two views. Because the Progressive case, as it stands,
is neither affirmed nor abandoned. But of course the Progressive
case is the latest view of the SC.
XI. RTC: Appeal
* If during the appeal the defendant does not deposit the monthly
rental to the court as required by the Rules, the RTC can also order
the immediate execution of the judgment. BUT you will note that
immediate execution ordered by the RTC as an appellate court is
only PARTIAL EXECUTION. Meaning, only the eviction of the
defendant from the premises will be carried out. But in so far as the
question of payment of money is concerned, that will not be subject
to immediate execution. (SEE Rule 70 Sec 19)
* Note when the case is elevated to the RTC, the RTC is no longer
covered by summary procedure.
* The only way to avoid the immediate execution of the judgment by
the RTC is to seek from the CA a writ of preliminary injunction. (SEE
Rule 70 Sec 21)
XII. Real Action In Personam
* According the SC, FEUD is still an action in personam, it is a real
action in personam. This is an exception to the Rule that a

26
decision in an action in personam is enforceable only against the
parties to the case.(MAST: In the sense that the judgment is also
binding on the sub-tenant, the guests, the relatives and any one
who derives justification of they stay from the lawful possession of
the lessee.)
XIII. Rule 41 and Rule 40
If the defendant files a Motion to Dismiss on ground of lack of
jurisdiction for absence of demand, and the court dismisses, this is a
dismissal without prejudice.
QUERY: Can the plaintiff avail of Rule 41? But Rule 41 says it is not
appealable, can he file a petition under Rule 65?
No, there can be an appeal, this time the plaintiff should rely
on Rule 40 Sec 8 regarding ordinary appeal from the MTC.
XIV. Other Matters
* When cases involving title to property like recovery of property or
annulment of sale are filed in another court, such cannot defeat or
stop FEUD. In that case of recovery of property, the adverse party
cannot move for the issuance of a writ of preliminary injunction to
stop MTC from trying the complaint for FEUD. Any case involving
title to property and FEUD could stand together.
* It is possible to have a stipulation in the lease contract that there
will be no need to file ejection suit when the lessee violates the
terms of the agreement or refuses to pay or refuses to vacate. The
said stipulation is valid provided the premises are leased for
commercial purposes. The lessor cannot be criminally or civilly
liable. If the premises are residential, then the validity of stipulation
is doubtful.
RULE 71 - CONTEMPT
* SCAF:
1. The penalty for contempt can be imprisonment;
2. With respect to direct contempt: the plaintiff or the prosecutor
and the court are one and the same person,
- practically in direct contempt, the respondent has no chance at all
of prevailing in the case; (MAST: What could be the possible reason
for the apparent impartiality?)
3. In case especially of direct contempt, there is absence of
pleadings, the court will simply order the person guilty of direct
contempt; (SEE Sec 1)

27

NOTE:
In case of Indirect Contempt:
I. Where there is a requirement of an INDEPENDENT PETITION: there
is semblance of the application of the rules on civil actions:
A. Should comply with the Rules applicable to ordinary civil actions:
- thus filing of an independent petition, which is an INITIATORY
PLEADING, requiring the payment of docket fees.
(MAST: How about certificate on non-forum shopping? Sec 4
provides that there should be full compliance with the requirements,
so it seems there should also be certificate on non-forum shopping.
But I have a reservation, the direct contempt proceeding is taken
cognizance by the court which was disrespected. This is also true
with indirect contempt of court involving persons who disrespected
the RTC and courts of higher ranks. Please analyze the provisions of
Sec 1, 3, 4 and 5. Because of this, it is impossible for the injured
private party to file a case other than the court where the case is
pending or which decided the case. The reason for the rule being
absent, there is no need for the application of the rule on
certification against forum shopping. Cessante ratione legis, cessat
ipsa lex.
Note however that in Sec 5 of Rule 70, it seems that there is a
need for certification against forum shopping. The evil sought to be
avoided in requiring the said certification is present in the way
indirect contempt is charged against a person who disrespected an
inferior court. The charge may be filed either with the RTC where the
lower court is sitting OR in the lower court itself. Therefore, in so far
as indirect contempt against a lower court is concerned there is a
need to file a certification against forum shopping as provided under
Rule 7 Sec 5.)
B. It is HOWEVER similar to Rule 65 thus:
- there will be issuance of order to comment not necessarily
summons (MAST: Is the last phrase an indication that indeed in
order for the court to bring the respondent before it, a process like
summons may be issued as provided in Sec 3?)
- there is no default order in this special civil action;
II. Where commenced by the court MOTU PROPIO:
- this court must issue an order requiring the respondent to show
cause why he should not be cited in contempt of court, at least
there is A TRIAL here; (SEE Sec 4)
4. The court could send the respondent to jail for an indefinite
period of time, a feature not even found in criminal cases:

28
- INDEFINITELY: as long as you refuse to perform the act required of
(MAST: Does this only apply to Sec 8?);
5. REMEDIES:
A. DIRECT CONTEMPT:
- certiorari or prohibition as mandated by the Rules; (SEE Sec 2)
- Jurisprudence: special proceeding of habeas corpus, in fact there is
no prohibition from a petition for certiorari being joined together
with the prayer for the writ of habeas corpus;
(MAST: But could they be filed independently without violating
splitting a cause of action?)
- The remedy of habeas corpus can be invoked especially if
incarceration is concerned.
- In Direct contempt, there is no need for a complaint unlike the
other special civil actions. The judgment is rendered right away.
Here is a final order which is not subject to appeal but certiorari.
(MAST: Somehow of a feature the same as some of those
enumerated in Rule 41.)
B. INDIRECT CONTEMPT:
- the remedy is PLAIN APPEAL
(MAST: Why is certiorari not applicable, how about Motion for
Reconsideration or New Trial or Relief from judgment or Annulment
of judgment?);
6. Although contempt may be classified as civil and criminal: there
can be no appeal from the order absolving the respondent of the
contempt charge, reason: DOUBLE JEOPARDY; (MAST: Does this rule
apply to both direct and indirect contempt, civil and criminal
contempt? SEE the conflict with Regalado)
7. Contempt as a remedy to execute a judgment is an exception to
the general rule:
- one exceptional case is when the judgment directs the
performance of an act which is purely personal to the defendant,
meaning he alone can do this act (MAST: Rule 39 Sec 11 on
Execution of special judgments: is this direct or indirect contempt? It
appears that this is also indirect contempt under Sec 3b)
NOTE:
Rule 65 is enforced by a petition for contempt. Therefore, we
can observe that at least there are two instances (Rule 39 Sec 11

29
and Rule 65) where contempt can be a mode of enforcing a
decision. In case of Rule 65 the contempt charge will be against a
disobedient court which falls squarely under Sec 3 (a) or (b) of Rule
71.
- In unlawful detainer what is contemptuous on the part of the
defendant is his return to the premises after he has been
successfully evicted (by sheriff and the police)(MAST: Section 3b of
Rule 71 in relation to Rule 39 Sec 10c: clearly this is INDIRECT
CONTEMPT)
* Contempt is previously a provisional remedy, that is why it has
similar features with provisional remedies where there is a principal
case. At present, it is already raised or elevated to the level of an
independent special civil action. But still contempt proceedings
presume or involve a main case or action before availment of the
special civil action of contempt.
* This is similar to quo warranto because it is also cognizable by all
courts.
* In contempt proceeding there is a need for an appeal bond, if the
contemner does not want to go to prison. This is because the
judgment of contempt is immediately executory.
SALVATOR mundi! Salva mundum!

The whole world is not worth one soul St. Francis de Sales

SPECIAL PROCEEDINGS
PRELIMINARY MATTERS
* Out of 37 Rules in SPECPRO, 20 concerns with the settlement of
estate. (MAST: 72-90 Settlement of the estate proper, 91 indirectly
connected)
* Some of the Rules are no longer applicable, like the Constitution of
the Family Home which has been practically rendered useless by the
Family Code Art 152ff.
* NOTE: In Rule 1 Sec 3, there is no mention of the applicability of
ordinary rules to Special Proceedings. However SEE Rule 72 Sec 2,
which mentions this applicability;
* Barangay Conciliation is not applicable to Special Proceedings
particularly in Settlement of Estate;

30
REASON: SPECPRO is governed by its own set of Rules, the Rules do
not so state such applicability;
(MAST: One specific reason is that many of the issues that are
resolved in settlement proceedings are prohibited to be
compromised like the status of the heirs.)
* Motion to Dismiss:
A motion to dismiss may or may not occur. It is possible in
probate proceedings and petition for the issuance of letters of
administration. This is so, because grounds may be invoked to
dismiss the petitions or application.
(SEE Sec 10 Rule 76; Sec 4 Rule 79)
*NOTE: The summary special proceeding under Alternative Dispute
Resolution in case of enforcement of foreign arbitral awards as
provided in Sec 44 and 47 of RA 9285;(MAST: Analyze Sec 22 of the
Arbitration Law RA 876 on Domestic Arbitration, which states that
Arbitration is deemed a special proceeding.)

SETTLEMENT OF ESTATE
I. Testamentary Privilege
- Not embodied in the Rules but in the Civil Code specifically the
rules on Succession; (SEE Article 774ff NCC)
- This is part of the Civil Code which is implemented by the Rules on
the settlement of estate;
- Definition: refers to the right given by law to a person to dispose of
his property during his lifetime but the disposition of the property
may take effect after his death;
II. Letters testamentary:
- is the authority given by the court to an executor who has been
nominated by the testator in his will;
III. Letters of Administration:
* But if there is no will or even if there is a will but the executor
refuses to accept the trust, the court will appoint an administrator;
* The appointment of this administrator, if there is a will, is
contained in the document called letters of administration with the
will annexed;
* When the document is simply letters of administration, it means

31
that there is no will or if there is a will, it has not been duly admitted
to probate and therefore intestacy results; (SEE Sec 6 Rule 78)
IV. Ancillary Administrator
In order to have an administrator in the other country where
the decedent has left some properties, the recourse is ancillary
administration. Thus an ancillary administrator presupposes that
there is a principal administration proceeding in a foreign country
but the decedent left some properties in the Philippines. (SEE Rule
77)
V. Settlement Proceeding in General
A. The heirs become such immediately after the death of the
testator:
* Settlement proceedings can take place only after the decedent has
died. (MASTER: When the testator presents his will himself, how do
you classify that? SEE Sec 1 Rule 76; Note also Secs 3 2 nd par. and 4
2nd par., on the effect if the testator himself petitioned for probate on
the mandatory jurisdictional requirements)
* But it does not mean to say that the heirs can automatically take
possession and have ownership of the properties left by the
decedent;
* This is qualified by the absence of creditors of the decedent;
* The principal purpose therefore of settlement proceedings is to
liquidate the estate of the deceased;
* LIQUIDATION: the acts of making inventory of all the properties of
the deceased, naming all the creditors of the deceased;
* The creditors of the deceased are always given preference over his
heirs;
B. If there is no will left, the heirs have TWO OPTIONS:
(a) Settle the estate extra-judicially;
(b) Go to court:
If there is no agreement among the heirs or if there is dispute
among them:
1. Complaint for partition; OR
2. Institute settlement proceedings:
> probate proceedings
> proceeding on intestacy

32

* Even if the heirs extra-judicially settle the estate of the

predecessor-in-interest on the premise that there is a will and there
are no debts that extra-judicial settlement can never be registered
by the officers of the government unless the taxes are paid first.
(SEE Secs 94 and 95 NIRC)
VI. Extra-judicial Settlement
A. CONDITIONS BEFORE THE HEIRS OF A DECEASED PERSON CAN
EXTRA-JUDICIALLY SETTLE THE ESTATE OF THE DECEDENT:
1. The decedent must have left no will;
2. There are no debts;
3. The parties agree among themselves to the partition of the
properties left by the decedent; (SEE Sec 1 Rule 74)
* Settlement in private instrument is still valid, although this is
binding only between the parties to it;
B. Deed of Extra-judicial Partition - if there are two or more heirs;
(MAST: It seems that extra-judicial settlement and extra-judicial
partition are synonymous and have the same requisites.)
C. Affidavit of self-adjudication - only one heir;
D. Protection of Creditors:
1. State:
* If the estate consists of personal and real properties there will be a
need for the certification title to be transferred in the name of the
heirs in accordance with the partition agreed upon in the deed of
extrajudicial partition. The Register of Deeds will not register any
document extra-judicially partitioning the property unless there is a
clearance from the BIR. (Sec 95 NIRC)
* With respect to the Republic of the Philippines, there is practically
no danger that the Republic will lose the taxes. The particular
concern is with the other creditors of the deceased.
2. Creditors:
* The protection given by the Rules to the creditors is that if the
estate consists of real properties, the title that will be issued to the
heirs will carry an encumbrance that the properties will be liable for
the payment of indebtedness within a period of 2 years.
If there are no real properties involved, the protection given
by law to creditors is that these heirs will be required to file a bond,

33
equivalent to the value of the personal properties left behind. (SEE
Sec 4 Rule 74)
VII. Two Options by Way of Settlement Proceedings:
1. To settle the estate summarily in a judicial proceeding
which is practically a useless provision now (because of the value);
2. The regular settlement proceeding;
* The only difference between Summary Settlement and Ordinary
Settlement is the absence of an executor and administrator.
* Note the difference between Summary Procedure and Summary
Settlement Proceedings.
A. Regular Settlement Proceeding:
* The jurisdictional facts are: that the decedent has died; and is a
resident; and the gross value of the estate;
* Note jurisdiction lies in the RTC or MTC as the case may be; (See
BP 129)
* There should only be one court to settle the estate of the
deceased person, otherwise there is a possibility of these courts
issuing conflicting decisions and orders; (SEE Sec 1 Rule 73)
* QUERY: Where to file the settlement proceedings?
: It is the place where the decedent last resided. (MAST:
Which means in which he resides at the time of his death SEE Sec
1 Rule 73.)
: The court which first takes cognizance will do so to the
exclusion of other courts. (SEE Sec 1 Rule 73)
(MAST: Is this a principle of venue or of jurisdiction? I believe that
this is just a principle of venue, since it is just a matter of one court
giving way in favor of another, to avoid conflicting decisions.)
VIII. Limited Jurisdiction
* The Settlement Court whether the proceeding is estate or
intestate is a court which acts with a very limited jurisdiction. It has
jurisdiction only to:
1. Liquidate the estate;
2. Decide the claims against the estate;

34

3. Decide who the heirs are;

4. Distribute the estate;
* Thus they cannot resolve questions of ownership involving
properties of the decedent if these properties are claimed by
strangers. An independent action must be filed for the purpose of
adjudicating this controversy.
(MAST: What if the question involves the claim of ownership of an
heir and not of a stranger? The court may not generally also
determine this issue. However, if all the heirs agree to submit the
question to the probate court, then the court can determine the
issue. However such determination is not binding on third persons,
but only on the heirs.)
IX. When Issue of Ownership Determined
* GENERAL RULE:
The issue of ownership should be determined or raised not in
a special proceeding but in an ordinary civil action.
Exceptions:
1. When the heirs agree to submit the issue of ownership to the
probate court;
NOTE:
Even if the heirs all agreed to submit the issue of ownership to
the probate court; still, the determination of the court as to
ownership is not binding against third persons who did not
participate in the resolution of the issue.
2. Provisional ruling on ownership allowed;
* QUERY: Suppose the execad discovers that a certain bank
account and a land belong to the deceased. Can the execad file a
motion to the settlement court for the return to the estate of the
said properties? Can the settlement court validly issue an order to
the bank or the Register of Deeds to transfer the title to the estate?
In both cases the answer is NO. If there is an issue as to title
of the property, the settlement court cannot determine such issue.
This is because the settlement court is a court of limited jurisdiction.
The RTC is the only court which is a court of general jurisdiction. But
if it acts as a settlement court, it exercises only limited jurisdiction.
What is the remedy then? The executor has to file an ordinary action
or an action reinvindicatoria. Note that when an ordinary action is
filed, the RTC is not necessarily the same settlement court, we have
to follow the ordinary rules on jurisdiction and venue. Thus the court
can be an inferior court.

35

X. How to Commence the Proceeding

A. Petition
* If a person dies and has left a will, the person in custody of that
will can simply go to court, surrender the will to the court and the
act of surrendering that will to the court already commences
settlement proceedings. So there is no absolute necessity for the
filing of a petition for the allowance of the will. (MAST: According to
SC decisions there is even no need for a petition at all to be able to
commence a special proceeding; SEE Sec 3 Rule 76)
* But generally in settlement proceedings, the petition prepared by
the lawyer will be accompanied by the petition for the probate of
the will or petition for the issuance of letters of administration as the
case may be. The petition for the allowance of the will or the
issuance of letters of administration should embody:
(a) The legatees or devisees;
(b) The last residence of the decedent;
These are jurisdictional facts which should be embodied therein.
B. Bond
General Rule:
There is a need for the execad to file a bond before he
assumes office as an executor or administrator. (SEE Rule 81)
Exception:
There are certain instances provided in other laws that even if
there is no bond filed, the execad can assume office. An example is
found in General Banking Act. When a banking institution with trust
powers, or which acts as a trust corporation, was designated as the
execad, there is no bond required to be filed by the executor or
administrator bank.
REASON: Because the Central Bank already required the filing of
large amount of money, as bond, when the said bank applied to be a
trust corporation or applied for a license. Therefore the bank is not
required to file another bond when it accepts its designation as the
execad.
XI. In Rem Proceeding
* A settlement is a classic example of a proceeding in rem. There is
a petitioner but there are no respondents identified in the petition.

36
* The court does not issue summons, there is no defendant;
* The settlement court acquires jurisdiction over the petitioner when
he files the petition since this is a voluntary surrender to the
jurisdiction of the settlement court;
* QUERY: How does the court acquire jurisdiction over the heirs,
over the persons interested in the estate of the deceased?
Once a petition for probate or a petition for the issuance of
letters of administration is filed with the court, the court is
COMPELLED to issue an order setting the matter for hearing.
This order must be published in a newspaper of general
circulation once a week for three (3) weeks. It is this act of
publication which will confer jurisdiction upon the court.
MANDATORY REQUIREMENT: In addition to the publication of this
notice of hearing, the court is required to serve by personal service
or by registered mail notices to the heirs, legatees and devisees
identified in the petition.
If there is no notice given personally or by mail to the heirs
identified or named in the petition, then the court will not acquire
jurisdiction over the proceeding. (MAST: Analyze the very reason for
this mandatory requirement as compared to the earlier statement
that the publication confers the jurisdiction. From what I heard in
another recording of Jara's lecture, it is clear that the position of
Dean is that, there should be BOTH publication and personal notice.)
But remember that what is published is the notice of hearing.
It is the order of the court after the petition has been filed or after a
will has been submitted to court. (SEE Secs 3 and 4 Rule 76)
XII. Extrinsic Validity and Other Evidentiary Matters
* If there is a will left by the testator, then the hearing will first be
concentrated on the extrinsic validity of the will, that is, the court
will have to make a finding as to whether or not the formal
requirements of the will embodied in the Code have been satisfied.
* Admission to probate simply means that the will is extrinsically
valid, that the formal requirements in the Civil Code have been
satisfied by the testator and subscribing witnesses. The probate of a
will has nothing to do with the intrinsic validity of the will. It has
nothing to do with the contents of the will.
A. Impeachment of Witnesses
In the probate of a will a petitioner is free to impeach a
subscribing witness. Therefore the petitioner is not bound by the
testimony of these subscribing witnesses.
REASON: The evidentiary rule which provides that a person cannot
impeach or contradict his own witness assumes that the party

37
presenting the witness has freedom to choose who these witnesses
are. In probate proceeding, the petitioner really has no choice at all
in presenting the subscribing witness. These witnesses are in truth
not the witnesses of the petitioner. They are witnesses to be
presented in compliance with the Rules of Court, because the Rules
require that the subscribing witness be presented. (SEE Sec 12 Rule
131)
B. Notarial Will as a Public Document
General Rule in Public Documents:
There is no need for authentication, the public document is
presumed prima facie as to its due execution and authenticity. (SEE
Rule 132 Sec 23)
Exception: In case of a Notarial Will, its authenticity must be
proved;
C. Best Evidence Rule:
Generally, in case of a public document, before secondary
evidence can be presented the other original copies must be
accounted for. For example in case of a Deed of Sale which was
notarized, the vendor, the vendee and the notary public have their
respective original copies. However as an exception, due to the fact
that there is only one copy of the notarial will, upon its destruction
and loss, a xerox copy can be presented in evidence and in the
absence thereof then the testimony of a witness may be offered in
evidence; (SEE Rule 130 Sec 3)
D. Dead Man's Statute (SEE Rule 130 Sec 23)
XIII. Executor and Administrator
A. Officer of the Court
The executor or administrator appointed by the court is a
neutral party. He does not represent the heirs. The executor or
administrator is an officer of the court. The requirement is that this
executor or administrator must file a bond in addition to other duties
which are which are embodied in the Rules. (SEE Sec 1 Rule 81)
* Supreme Court Justice, appointed executor in the will, could this be
done?;
B. Order of Preference
There is an order of preference when it comes to the
appointment of an administrator.
But there is no order of preference when it comes to the
appointment of an executor.

38
REASON: An executor is a person nominated in the will by the
testator himself. (SEE Rule 78 Sec 6)
* In all proceedings where there is an element of trust that is
involved...the common obligation that the rules impose upon them
aside from the filing of the bond is that, they must submit a true and
complete inventory. They must submit an accounting within a period
of 1 year and in such other time as the court will require. And they
must obey at all times the orders issued by the court, whether it is a
settlement court or a guardianship court or a trusteeship court. (SEE
Rule 81 Sec 1; Rule 94 Sec 1; Rule 98 Sec 6)
C. Final Order
When the court appoints an executor or administrator, the
appointment is a final order. Since it is a final order it is appealable.
(SEE Rule 109 Sec 1 e)
XIV. Special Administrator
A. Appointment of General Execad Challenged
* If the appointment of the executor or administrator is challenged,
there will be a situation where nobody will be taking care of the
properties of the estate while the appeal is going on. According to
the Rules, the court can now appoint a special administrator. The
appointment of a special administrator is not appealable. (SEE Rule
109 Sec 1 e; Sec 1 Rule 80)
* There is conceivably no harm in appointing the same person as
the special administrator because there is a vast difference between
the powers and duties of a regular administrator and a special
administrator. A special administrator:
1. Cannot pay obligations;
2. All he does is to protect the property;
3. Cannot sell the properties of the estate;
4. Cannot mortgage properties of the estate;
5. He can only be a caretaker of the properties of the estate
until a regular administrator or executor is appointed by the
court. (SEE Sec 2 Rule 80)
* Note that in case of a challenge to the appointment of a special
administrator under Rule 65, the higher court may issue a writ of
preliminary injunction to stop the appointment. The grant of such

39
injunction however is seldom, since the higher court usually prefers
that there be someone to preserve the property.
B. General Administrator has a Claim against the Estate
* QUERY: How about if it is the execad who has a claim against the
estate?
A special administrator will be appointed. This is because
there would be a conflict between the duty of the general
administrator as such and his interest against the estate. (SEE Rule
86 Sec 8)

XV. Statute of Non-Claims

* Notice that there are two classifications of claims in Rule 86:
1. secured claims;
2. unsecured claims;
* After the execad submits the inventory and identifies the property
in his possession, then the settlement court issues the second order
(which is published) ordering the filing of claims.
* A rule of prescription contained in the Rules of Court, specifically
Rule 86;
* The consequence if these claims are not duly submitted to the
settlement court on time, then the creditors loses their right to
enforce collection of their claims;
* QUERY: What will the court do after the administrator has taken
an oath of office?
The court will issue another order fixing the date for the
enforcement of the Statute of Non-Claims.
The court will issue an order directing the money claimants
against the estate should file their claims within a period of not less
than six months nor more than twelve months from the date of the
first publication within which to submit their respective money
claims. OTHERWISE THESE MONEY CLAIMS ARE BARRED. So they
will no longer be enforceable against the estate of the deceased
person. (SEE Rule 86 Secs 2 and 5)
A. Rule 3 Sec 20 and Rule 39 Sec 7 in Connection with Money Claims
* Rule 3 Sec 20, the claims here are the same as the unsecured
claims in Rule 86.
* The defendant has died, there is a judgment against him and there

40
is already a levy on the property of the deceased defendant. The
levy will continue and the properties levied upon can be sold at
public auction. This should be treated as an exception to the rule
that money claims supported by a judgment cannot be enforced
against the executor or administrator under the provisions of Rule
39. (SEE Sec 7 c Rule 39)
B. Nature of Money Claims
The claims referred to in the Statute of Non-claims are PURE
MONEY CLAIMS arising from contract express or implied and do not
include claims for the recovery of personal or real property. They do
not include claims arising from tort.
* The claims could either be due or contingent (MASTER: Meaning
not yet due or still conditional)
* An unsecured creditor is one who does not hold a mortgage,
pledge or any other collateral security during the lifetime of the
defendant.
C. Jurisdiction
We do not apply the provisions of BP 129 when it comes to the
determination of whether or not the settlement court has
jurisdiction over certain money claims. The RTC has jurisdiction over
the amount of the claim, even if below the jurisdictional amount.
(MASTER: How about if the settlement court is an MTC, can a
creditor claim beyond the jurisdictional amount? I think Yes, because
it can happen that the liabilities of the decedent is more than the
assets. If we do not allow the money claim even if it is beyond the
jurisdictional amount, we would be depriving the creditor of his right
to at least recover a certain amount, and certainly he would be
getting less than what he deserves in the settlement proceeding. BP
129 applies only to the main settlement case. Anyway, the court will
be awarding to the creditor only an amount of money within its
jurisdiction nothing more, thus there is no danger that it would be
acting in excess of jurisdiction.)
D. How Commenced
*A money claim in the settlement court is not commenced with the
filing of a complaint.
* All that the claimant is required to submit is an affidavit saying
that he has a claim against the estate, and in that affidavit he will
annex supporting papers.
* Because a money claim is not in the form of an action as
contemplated in civil actions, the executor may or may not file an
answer. The executor may not contest the claim.

41

E. Trial
If there is a contest of that claim, then there will be a trial to
be conducted by the settlement court to determine whether or not
that claim submitted by the creditor is valid. In the trial of the
contested money claim, the court is not required to sit as the judge
during trial.
This is one instance where the court is given the discretion to
appoint a commissioner for the hearing of the contested claims.
(SEE Rule 86 Sec 12)
F. Notice to Creditors
Note that one cannot issue a notice to creditors before the
appointment of a regular executor or administrator. It is imperative
that a regular executor or administrator be duly appointed and
qualified first, before there could be notice to creditors. As a
consequence, there is no notice yet to creditors if it is only a special
administrator who is appointed, this is understandable because a
special administrator has limited powers which do not include
determination of the claims of creditors;
G. Appeal
* Once a claim is adjudicated by the court, that adjudication again
becomes a final order which is appealable. (SEE Rule 109 Sec 1 e)
* And while there are appeals going on, on these contested claims,
it is not possible for the administrator or the executor to distribute
the estate among the heirs because the principal purpose of the
settlement is always the liquidation of the estate- payment first of
the creditors ahead of the heirs of the decedent.
H. Contest
If the administrator decides not to contest a particular claim,
the heirs could submit their own contest to this claim. This is a
remedy to check the possibility that an executor or administrator
may have abused the authority given to him by the Rules. (SEE Rule
86 Sec 11)
I. Recognition by the Testator of the Claim in the Will
* The recognition by the testator of the existence and validity of
certain accounts will not be an excuse for these creditors not to
submit their claims within the period provided by law.
* Even if the testator in his will expressly stated that he is indebted
to creditors and commands the payment thereof, there is still a
need to file a claim in accordance with the Rules. Even if we know
that the will of the testator must be given effect, such however is

42
not true when it comes to the payment of the liabilities of his estate.
It is for the court to finally determine whose claim should be
allowed. There might be collusion between the testator and the
creditors mentioned in the will to the prejudice of the other creditors
not mentioned in the will. The settlement court prevails in
determining whose claim is to be allowed.
J. Basis of Statute of Non-Claims
The Supreme Court said that it is true that prescription is a
matter of substantive law but the provisions of the Rules of Court
pertaining to Statute of Non-claims is substantive because it is just a
reproduction of an old provision in the Code of Civil Procedure. The
Code of Civil Procedure was substantive law, that is, before the
Rules of Court took effect. It is a reproduction of an old substantive
law, which has not been repealed by the Civil Code. There is really
no conflict between the Civil Code and this provision, and the
provision of the Rules of Court should be taken as an exception to
the rules on prescription contained in the Civil Code.
K. Creditors Not Covered
* There are creditors who are not covered by the provisions of
Statute on Non-claims and they are expressly found in the Rules
namely:
creditors who hold collateral or
mortgage over the properties of the decedent. (SEE Rule 86 Sec 7)
* We are referring here to mortgages contracted by the decedent
during his lifetime;
* The rule is different with respect to mortgages that are contracted
by the executor or administrator with the permission of the court;
(SEE Rule 89)
L. Contingent Claim
* The Rules are clear in saying that money claims whether they are
contingent or absolute must be presented within the period
otherwise they are barred.
* CONTINGENT CLAIM: ... If this claim becomes certain later on, then
the executor or administrator will have to retain a part of the estate
for the payment of this contingent claim.
If the executor is ordered by the court to distribute the estate
notwithstanding the fact that this contingent claim has not matured
or has not become absolute, then the distributees of the properties
of the deceased could be held personally liable up to the limit of
their share in the estate in the payment of the contingent claim.
* According to some authors a contingent claim - includes a pending

43
case, even before there is a judgment. This is because it may
happen that the defendant dies or a party dies during the pendency
of the case. During the pendency of the case a settlement
proceeding may also be initiated and we know that it will take time
for the case of the creditors to be final and be entered. And because
of the Statute of Non-claims, the remedy of the creditors in a
pending case is to already file a claim in the settlement of the estate
to protect their interests. And since they do not have a final (and
executory judgment) yet in their favor, their claim is classified as a
contingent claim.
M. Summary of Procedure for Filing Claims against the Estate
It is not proper in case of unsecured claims to file a separate
complaint against the execad. If an ordinary action is filed for
recovery of money (unsecured) against the executor or
administrator, the case will be dismissed. Because the procedure is
to file a claim under Rule 86 with the settlement court. A claim
under Rule 86 is similar to a third party claim or terceria
under Rule 39. The claim is not a complaint, a counterclaim etc,
but it is just an affidavit which the claimant sets forth his claim and
annex the documents which will justify approval of the claim. It is
not an action where there is plaintiff or defendant. It is again only an
affidavit where the claimant outlines his claim, its brief history, the
details and where he attaches the supporting documents (like a
promissory note). The claimant submits the claim to the executor or
administrator. The executor or administrator must answer the claim
by either denying or admitting the claim. If the execad admits the
validity of the claim, then there is no dispute at all and the court
may approve the claim right away. So it is possible that the execad
may conspire with other claimants. Is there any check to this
possibility? Under the Rules even if the execad files an answer that
admits the claim, the court can ask the opinion of the heirs. Even if
the execad appears to be a very powerful person, the power could
be neutralized by the heirs who can deny the claim. What if the
execad denies, will there be a trial? Yes. Notice that the burden of
the settlement court becomes very heavy if there are several
claimants. For example if there are 10 different claimants and all the
claims are denied by the execad in his answer, the settlement court
will give opportunity to everyone to present evidence of claims; and
the execad and heirs to present rebuttal evidence. To ease the
burden, the court can appoint a commissioner solely for the
purpose of hearing the claims. In addition to expropriation
and partition, where commissioners are also appointed, we
have here another instance where a commissioner is
appointed. (MAST: Note that unlike in expropriation and partition,
the referral to commissioner here is discretionary. SEE Rule 86 Sec
12 word may) The commissioner recommends the approval of the
claim and the settlement court approves.

44
The remedy is not certiorari, the 10 final orders approving the
10 claims are appealable. So there can be 10 appeals. The mode of
appeal is by notice of appeal and record on appeal. The period to
appeal is 30 days.
Once the settlement court approves the claim, that approval is
not a guarantee of payment. The claimant must wait until the order
for paying the claims is issued. It is not practical for the creditor to
move for execution because the person handling the property, the
execad, is an officer of the court. Generally, there is no writ of
execution that can be issued for the purpose of enforcing the claim.
The remedy is to file a motion to compel the execad to pay so that
the court will issue the order for paying the claim. If the execad
ignores the order compelling him to pay, then the remedy is
contempt.
N. Solidary Obligation
QUERY: Suppose during his lifetime the deceased signed a
promissory note together with another person. The deceased
accommodated a friend and signed as a solidary debtor. Should the
creditor bank also file a claim with the settlement court against the
estate of the deceased, although it has an option of claiming against
the friend who is also solidarily liable?
Yes. The creditor bank should still file a claim as if the
deceased is the only debtor in that indebtedness. It is true that it is
the privilege of the creditor to run after any of the solidary debtors
as provided under the Civil Code. But if the creditor only runs after
the other debtor, but he fails to file a claim against the estate of the
deceased debtor, his claim will be barred as to the latter. (SEE Rule
86 Sec 6)
O. Concurrence and Preference of Credit
* To determine whether or not the estate is solvent one must look at
the inventory and accounting which is regularly submitted.
*QUERY: If the estate is insolvent, does the settlement court
possess the power to determine which claim should be paid ahead?
It has power, but it must comply with the Civil Code Provision
on Concurrence and Preference of Credits. (SEE Art. 2236ff NCC; Sec
7 Rule 88)
XVI. Options of Creditors not Covered by Statute of NonClaims
* The creditor is given three options under the Rules:
1. Abandon the mortgage and consider its loan as an

45
unsecured loan, in which case the creditor should file a claim
against the estate;
2. Rely on its mortgage- foreclose the mortgage and if there is
any deficiency, the creditor can file a claim with respect to the
deficiency;
3. Rely absolutely on the collateral that it holds, in which case
it does not have to participate in the settlement proceedings.
* As to the 2nd mode: Deficiency is contingent because there is no
guarantee that there will be a deficiency after foreclosure.
* If the decedent has died and in the contract of mortgage that is
previously contracted, there is a special power of attorney that is
given to the mortgagee to foreclose, that special power of attorney
is not extinguished by death.
REASON: This is an agency that is coupled with an interest. It is only
the agent who is given the prerogative of canceling the power of
attorney.
* The Civil Code states that death of principal or agent extinguishes
the agency. But also under the Civil Code even if the agent or
principal dies, the agency will not be extinguished if it is an agency
coupled with an interest. The agency to extra-judicially foreclose is
an agency coupled with an interest: in the sense that the agency is
created solely for protecting the interest of the agent. Besides under
Rule 86, the mortgagee can rely solely on the mortgage, and may
not participate in the judicial proceedings. In other words, Option
Number 3 gives the mortgagee the choice to extra-judicially
foreclose a mortgage created during the lifetime of the mortgagor.
The death of the borrower or mortgagor will not affect the power of
the mortgagee to extra-judicially foreclose the mortgage with
special power of attorney to do so. Of course, he may also opt to
judicially foreclose, if he chooses Option Number 2. (SEE Art. 1930
NCC)
XVII. Sale and Encumbrance of Property
* It may happen that the estate is solvent but it has no liquid funds.
The Rules give the remedy to the execad to ask the court to dispose
of or encumber the property. Theoretically, the Rules allow approval
only of the sale of personal properties. But, as to real properties
there can be sale or encumbrance. However, the Rules give the
court enough discretion whether to allow the encumbrance or sale
of personal property. The Rules do not require strict application of
the provisions of the Rules. The court could still evaluate the benefit
that the heirs or creditors will derive in the sale, conveyance or
encumbrance of either personal or real properties.
In some

46
instances the Court could require that a proper motion must be
heard first; and even require the publication of the motion for
permission or leave for sale, conveyance or encumbrance of
properties. (SEE Rule 89 Sec 7)
* When it comes to personal property the court can authorize the
executor himself for the sale of the property. In case of real property
the Rules authorize the sale or encumbrance of property to satisfy
the debts.
* The settlement court has the absolute discretion to authorize the
sale or mortgage of both real and personal properties as long as the
purpose for the conveyance or disposition of these properties is to
raise money to pay off the obligations of the estate. Court decisions
are to the effect that these provisions should NOT be interpreted
strictly.
* Even if the claim of a creditor is approved by the court, it cannot
move for the execution of such claim. The creditor must wait for the
proper time, which is when the settlement court finally issues the
order directing the executor to pay the creditors.
* Once the court issues an order directing the executor or
administrator to pay the creditors, then the executor and
administrator (execad) must pay.
* When the assets are hard assets or not liquid assets, there is a
need to liquidate said assets if the claim is pecuniary in character.
When the indebtedness or claim is in the form of money, the
settlement court should pay also in money by selling property of the
estate to satisfy the debts. Consequently, dacion en pago or
payment in kind is generally discouraged.
* QUERY: Can the court authorize a dacion en pago?
Yes. In case of an heir when he has a claim against the estate.
We allow this because dacion en pago is just a specie of a contract
of sale provided of course that the heir has previously filed said
claim within the Statute of Non-claims. (MASTER: There seems to be
a conflict between the last sentence of the preceding paragraph and
this query. The only reconciliation that can be made is to make the
prohibition or discouragement of dacion en pago in paying the
creditors of the estate as the general rule; and the payment of a
claim of the heir against the estate in this form as the exception.
Moreover, the court has a wide discretion to pay debts through
dacion en pago provided that it is beneficial for the estate and will
not reduce the assets in the hands of the executor and
administrator so as to prevent a creditor from receiving his full debt
or diminish his dividend. Possible exceptions are Sec 8 and 9 of Rule
89.)

47
XVIII. Status of a Sale without Authority of Settlement Court
* In case of a buyer of the property under administration and the
contract of sale of such property was not submitted to the court for
approval or without authority of the settlement court, such sale is
VOID. The third person or the buyer cannot argue that he is a buyer
in good faith or for value. This is not a good argument in cases of
sale between third person and the execad, if it is without the PRIOR
approval or authority of the court.
REASON: The THIRD PERSON who is the buyer cannot claim that he
is in good faith. He should know that the execad is just acting as an
officer of the court (as an officer he needs prior authority in entering
into contracts of sale involving property under administration) and
that the execad is under the authority and supervision of the court.
* Under the Rules of Evidence, the buyer is conclusively presumed
to know that execad is an officer of the court and to know the law.
(Rule 89 Sec 1ff)
* In a case, the settlement court issued an order directing the sale
of the property under administration at its minimum prize provided
that the deed of sale must be first submitted to the court for
approval. The administrator of the estate sold it at a good price to a
buyer, but neglected to submit to the court the deed of sale for
approval. The buyer having the deed of sale registered it with the
Register of Deeds. Subsequently an heir questioned the contract of
sale on the ground of the lack of court approval or disobedience of
the lawful court order. The SC ruled in favor of the heir and declared
the disputed contract of sale void.
In this case, the execad is not obeying the lawful order of the
settlement court. To cure the defect, the remedy is to submit the
questioned deed to the settlement court for approval.
The court is given enough discretion on whether to approve or
authorize the sale or encumbrance of personal property and real
property, as the case may be, if it will serve the best interests of the
estate of the deceased person.
XIX. Contract of Lease
* QUERY: Can the execad, sign a contract of lease?
Yes, but the contract must have the approval of the settlement
court.
* QUERY: If the tenant however during the pendency of the contract
does not pay the execad as lessors, can the settlement court order
the ejectment or eviction of the tenants?
No. The execad must file a separate and independent special
civil action for ejectment or unlawful detainer under Rule 70. The
settlement court has only limited jurisdiction (to liquidate the estate

48
of the deceased person), and cannot enforce the terms of the
contract of lease even if this contract is approved by the court.
XX. Deed of Mortgage with SPA to Extra-judicially Foreclose
* QUERY: Can the court authorize the execad that in the deed of
mortgage, for the purpose of paying debts, to give a special power
of attorney to mortgagee to extra-judicially foreclose the mortgage
on the property in case of non-payment of debt?
Yes, the mortgagee may go ahead with the foreclosure. A
foreclosure proceeding can proceed against the execad and the
court cannot enjoin the mortgagee from doing so.
XXI. Partition and Distribution
* The determination of an heir by the settlement court will also
constitute a final order and therefore is also appealable. (SEE Rule
109 Sec 1 b)
* In the distribution of shares of the heirs, the usual procedure
followed by the court is for the court to ask the heirs to enter
voluntarily into a project of partition.
But if the heirs could not agree among themselves as to the
manner as to how the estate will be distributed, the settlement
court again has enough discretion. It is competent to determine the
manner by which the shares are going to be distributed. (SEE Rule
90 Sec 1)
* After the debts paid and assets are still left for distribution. The
settlement court has authority to determine who the heirs are.
* How to divide the property:
The heirs will submit a project of partition. The project of
partition will then be approved; entered if no appeal is taken from
the order of the court approving the project of partition.
* The order to liquidate is the order of the court to pay off the
obligations. After all the claims are paid, the settlement court will
then determine who the heirs are. Next, the court will issue an order
of distribution. The big problem is how to divide the estate. If the
estate consists entirely of money, there is no problem as long as the
forced heirs legitime is not prejudiced. The remedy in case of
unliquid assets then is to agree on a project of partition. If there is
disagreement, then the court will determine.
* QUERY: If the execad failed to deliver their distributive shares
embodied in or pursuant to the project of partition, can the heirs
move for execution?
No. The remedy is not to move for execution under Rule 39.

49
The remedy is a special civil action for contempt under Rule 71 on
the ground of disobedience to a lawful order of the court.
Under the Rules, in a settlement proceeding, a writ of
execution cannot be directed against execad but a writ of execution
can be directed against the heirs. (SEE Sec 6 Rule 88)
* Again to compel distribution of the respective shares to the heirs,
the remedy is not Rule 39 but Rule 71 particularly the provision on
indirect contempt.
* In ordinary civil action, contempt as a general rule is not available
to enforce a final order. However in settlement proceeding, we can
have the executor or administrator cited in contempt of the
settlement court, if it does not obey a lawful order of the court.
XXII. Order of Closure
* After the order of distribution is issued and a report by the execad
that the distributive shares are already distributed, then the
settlement court will issue the order of closure which is also
appealable. The ORDER OF CLOSURE assumes that the final
accounting has been submitted and approved by the court. The
issuance of the order of closure marks the end of settlement
proceedings.
* Before the order of closure is issued by the court, usually the
administrator will submit a final accounting. And in this final
accounting, the administrator will seek the approval of the court for
the payment of administration expenses.
* If all the heirs have gotten their respective distributive shares then
the court will issue what is known as an order of closure. The ORDER
OF CLOSURE marks the end of the settlement proceedings.
* If the distributive share has been delivered, the executor will then
move for issuance of the order of closure. Every time an executor
submits an annual accounting (of the income and expenses of
administration of the estate), this must be approved by the court.
That constitutes also a final order and it is appealable. Once the
final accounting (that the payment of debts and distribution of
shares has been made) is approved this is also a final order which is
also appealable. This final accounting if entered will also release the
execad of his burden of administration.
XXIII. Multiple Appeals
* In settlement proceedings, this is one instance where several
appeals could be held in one and the same case.
(MASTER: It seems that in multiple appeals in cases of special civil

50
actions and special proceedings, there is a need for record on
appeal. Note for example that the resolution an issue in stage 1
does not have to await the resolution of another issue in stage 2
before an appeal can be made under the same multi-staged special
civil action or proceeding. This principle must be distinguished from
the situation or the rule contemplated in Rule 41 Sec 1 (g) on
judgment against several parties or separate claims etc.)
XXIV. Reopening
* It is possible that an heir is left out or certain properties are
subsequently discovered.
A. Comparison
* In criminal cases, the reopening must be done before the
judgment of conviction becomes final.
* The only difference between the civil cases and settlement
proceeding is that in civil case the reopening as a remedy is
available only after the trial has ended and the court renders
judgment.
* In ordinary procedure, reopening is also allowed, it is not expressly
recognized by the Rules of Civil procedure (except that it is
recognized in the Rules on Summary Procedure as a prohibited
motion and also an express mention of it is made in Criminal
Procedure {before it becomes final and executory}, so there is in
fact an express mention at least by the Rules of Court in general)
but jurisprudence says it is available. The time frame is from the
time trial has ended until rendition of judgment. Thus after the
judgment has been rendered, reopening is no longer available. The
remedies after rendition of judgment in ordinary procedure are Rule
37, 38, appeal and 47.
B. Reopening of Settlement Proceeding
* In settlement proceeding, reopening could take place even after
the proceedings have terminated, even after the closure issued by
the court has been entered.
- REASON: There should only be one court that should handle the
settlement proceeding.
(MAST: Is this not a violation of res judicata to allow heirs deprived
of shares to be included in the same proceeding that has been
entered?)
* QUERY: What if properties belonging to the estate are discovered
after the proceedings are entered?
Again there should only be one settlement court. The remedy

51
is to reopen. It does not violate res judicata. Because the settlement
court will not touch properties or rights already bestowed and
determined in the original settlement proceeding. The reopened
settlement proceeding will only distribute the new properties.
* An order of closure is also a final order. After entry, here comes a
creditor who tells the court he is not notified of the settlement
proceeding and thus moves for the reopening of the proceedings not
necessarily against the estate but against the heirs. If it is the
creditor who appears he is barred by the Statute of Non-claims. If it
is an heir who appears, he can move for reopening. If we do not
allow him to reopen he might file his own settlement proceeding
which is not against the principle that there should only be one
settlement court to settle the estate.
* QUERY: If the allegation of the person who claims to be an heir,
who was left out, appears to be meritorious, can he file an
independent special proceeding against the heirs? Or can the
execad file another special proceeding to liquidate the newly
discovered property?
NO. The remedy is to file a petition for the reopening of the
settlement proceeding or case.
* QUERY: Is there a time frame?
There is no period or time frame given by the Rules. It can be
held even after the order of closure is entered or has become final
executory, or even after a year or two years from the time the order
of closure was entered by the court.
XXV. Conversions
A. Conversion from Testate to Intestate
In probate proceedings when the will is disallowed, the
proceedings will not be terminated instead the testate proceeding
will be converted to intestate proceeding or there will be intestacy.
Since there will be intestacy, the purpose of settlement proceedings
being to distribute the property, the property will be liquidated and
distributed accordingly.
B. Conversion from Intestate to Testate
In case the first proceeding is intestate or for the issuance of
letters of administration and then another proceeding is instituted
which is testate or a probate proceeding, meaning the will was
subsequently discovered. The subsequent probate proceeding will
have to be terminated and the will submitted to the court where the
first proceeding was commenced. In effect the first will be converted
into a testate proceeding or probate proceeding. There is nothing

52
wrong with this procedure because both proceedings have a
common purpose which is liquidation and subsequent distribution of
the estate. Still we follow the principle that the first court which
takes cognizance of the case excludes others without prejudice to
the principle that testacy prevails over intestacy.
(MAST: How do we know that there is another proceeding initiated in
a court? Do we apply the certification of non-forum shopping in
special proceeding? I think this could easily be known since there is
publication and even notice served personally to the persons
interested and these persons interested usually are the ones who
institute the proceedings and has custody of the will. Note however
that annotations in the Book of Regalado have a contrary remedy in
the above cited case.)
XXVI. Partition VS Probate
Partition is a special civil action that is at the same time an
action quasi in rem, while probate proceedings is a proceeding in
rem.
XXVII. Rule 87
* Action reinvidicatoria or claim for damages for tortuous acts are
not covered by Rule 86 but by Rule 87
- The message in Rule 87 is: the claimant can file a complaint
directly against the execad. Thus, for example the claimant has a
claim for recovery of real property but failed to file an action
because the defendant died. The claimant can file an action
reinvindicatoria against the executor or administrator.
* Rule 87 enumerates certain actions that can be commenced
against the execad. There could be an ordinary civil action where
the execad serves as a representative party as defined under Rule
3. The complaint identifies the plaintiff. Since it is the execad who is
identified as the defendant, it is necessary that the estate must be
duly mentioned in the pleading, being the real party in interest. (SEE
Rule 3 Sec 3)
* In case of the receiver or when there is receivership. When a party
wants to file an action against the receiver or when the receiver
wants to commence an action, the approval of the court is
necessary in either or both cases. (SEE Sec 6 Rule 59)
* An execad can be made a defendant even without the permission
of the court. If the execad acts as plaintiff there is also no need to
get permission from the court. (SEE Rule 87)
XXVIII. Attorneys Fees

53
* If the executor wants to commence an action with the assistance
of lawyer, he can hire him without permission of the court. Suppose
the execad refuses to pay the attoneys fees, the lawyer may file a
complaint for recovery of attorneys fees against the execad.
Another option is that the lawyer may ask the administrator to
include his attorneys fees in the accounting as expenses (of
administration) so that the settlement court may approve it or
permit it and eventually order the payment of the attorneys fees.
(SEE Rule 90)
* The SC said that if the executor is himself a lawyer, he will not be
allowed to charge attorney's fees for his services rendered as a
lawyer and as an administrator or executor. (SEE Rule 85 Sec 7)
(MAST: What is the reason? Does the same principle apply to
administrator-lawyer?)

ESCHEAT PROCEEDINGS:
I. Nature
* It is not a continuation of settlement proceeding, but an
independent and separate special proceeding.
* Two instances under the Rules:
1. escheat proper; and
2. reversion proceeding;
* Assumes that the person has died; has not left a will; no heirs; but
may have debts. (SEE Sec 1 Rule 91)
* This is just an implementation of the Civil Code provision that the
Republic of the Philippines is always an heir of any deceased person
who dies without a will and without an heir. (SEE Art. 1011ff NCC)
* Justification of escheat: The State is an heir as provided in the Civil
Code. In the enumeration of heirs, the State is the last heir.
* Even if there is a will but that will has not been admitted to
probate because of defect in its form, the law will consider that the
deceased has died intestate. If there are no heirs, then the same
proceeding could be resorted to by the Solicitor General.

54
* It is a proceeding in rem, since there is no respondent and the
publication requirement is in fact longer than settlement
proceedings. (SEE Sec 2 Rule 91: once a week for 6 successive
weeks)
(MAST: It is also binding against the whole world, the only difference
is that the State is the sole heir, there being no other heir.)
II. Jurisdiction
QUERY: Should we not follow the jurisdiction provided in BP 129
with respect to settlement of estate which is based on the gross
value of the estate?
NO. BP 129 in vesting authority to inferior courts or RTC, as
the case may be, refers only to intestate or estate proceeding. BP
129 does not mention escheat proceeding expressly as among those
covered within the jurisdiction of any court or tribunal. In the
absence of express delegation of jurisdiction to any court or
tribunal, then we apply the general rule that the case is cognizable
by the RTC in the exercise of its general jurisdiction. Therefore the
jurisdiction lies within exclusive original jurisdiction of the RTC.
* QUERY: Do we also follow the jurisdictional principles in
settlement proceedings?
We do not follow. An escheat proceeding is cognizable by the
trial court. The subject is not capable of pecuniary estimation.
(MASTER: There appears to be two reasons, but what is important is
that the jurisdiction lies with the RTC.)
III. Limited Jurisdiction
* In escheat, the court acts in a limited jurisdiction: meaning, issues
which are not related to escheat cannot be resolved validly by the
court. The issue in escheat proceeding is: Whether the State is
authorized to take over the estate or property. Rule 10 Sec 5 on
amendment to conform to evidence is thus not applicable.
* In ordinary civil action: The does not resolve a case with a limited
jurisdiction, in the sense that amendment to conform to evidence
under Rule 10 Sec 5 is possible. For example: in an action for
recovery of a loan of 5M filed in the RTC. The issue is non-payment
of the loan. Can this court resolve a different issue of ownership of
the piece of land?
Yes. Amendment to conform to evidence under Rule 10 Sec 5.
IV. When the Owner of Property Alive
A. Unclaimed Balances Act (UBA)
* Q: Will there be escheat proceedings even if the owner of the

55
property has not died?
A: Yes. In some special laws like, the Unclaimed Balances Act,
escheat proceedings could prosper as long as the conditions
imposed by this law are met.
* The SC ruled that the Unclaimed Balances Law is founded on
police power of the State. In other words, it is not an expropriation
proceeding. It is inherent as part of the police power of the State to
take over bank deposits which have become dormant ( no
movement: no deposit, no withdrawal) for at least 10 years.
(MAST: Dean Jara asked whether we could consider the interest
given by the bank as a movement of the money deposited. I am of
the opinion that the interest here being given by the bank is not the
movement contemplated by the Unclaimed Balances Act. This is
because the interest is not initiated by the depositor but by the
bank. To be considered a movement, it must be initiated by the
depositor and not by the bank as in case of interest.)
* Basis of confiscating dormant bank deposits:
There is nothing in the Civil Code on this subject since it is a
special law. The justification is in the police power of the State. After
all, these bank deposits will be part of the National Treasury
intended for the use in economic development of the country.
* The UBA requires that all banks submit a report of all dormant
accounts of their depositors to the Central Bank. It is thus easy for
the government to know the dormant accounts. The Solicitor
General, in one and the same proceeding or petition for escheat,
may include for example all dormant accounts deposited in banks
located in Manila. The caption does not identify the depositors
because the banks are the respondents. The banks of course dont
care at all since the deposits that will be taken over are not theirs.
(MAST: Why is the bank impleaded as the respondent in Unclaimed
Balances Act? It was intimated that the bank is actually a borrower
in a contract of loan since though the money is called "deposit" the
contract is not really deposit. The bank is impleaded because in
case the money is escheated by the State, it will be deprived of the
use of the deposited money.)
B. Reversion Proceeding
* Another Escheat proceeding; (SEE Sec 5 Rule 91):
Acquisition of property by aliens if prohibited by laws or
Constitution could be reverted to the State by virtue of this escheat
or reversion proceeding.
* In this proceeding we do not assume that the respondent is dead;
or there is no will; it is possible that he is alive;

56
* The properties here are acquired in violation of the Constitution or
any statute;
* Under the present Anti-Money Laundering Law (AMLA) this is
called forfeiture procedure which is similar to reversion proceeding;
* The proceeding is not necessarily an in rem action, because there
is a plaintiff which is the Republic; or the defendant or respondent
who acquired the property in violation of laws. This is more of a civil
action with elements of escheat;
* There is a particular defendant identified, like a person accused of
having gotten wealth illegally.
III. Filing of Claim
* ... If it turns out that the deceased may have left some heirs who
were not aware of the death and therefore were not able to insist
that they be given the share in the intestate estate, the law gives
them the period of 5 years within which to make a claim for the
return of the properties that has been escheated in favor of the
government.
* Escheat proceeding is IN REM. There is a requirement of
publication, but what is peculiar is that even if after the judgment on
escheat has been entered, an interested person or an heir can ask
for the reopening or the return of the properties of the estate within
a period of 5 years from the entry of that order or decision of
escheat.
* QUERY: In Rule 91, it may turn out that the deceased have various
creditors, what is the remedy of the creditors? Can they file a
separate petition for the settlement of the estate or a petition for
the issuance of letters of administration, once the properties have
been escheated?
No. The creditor can move within the period of 5 years that
the State pay the indebtedness out of the assets inherited by the
State. If there are enough assets then it may be paid in full.
However, if the assets are not enough, the creditors cannot compel
the State to pay the deficiency. Thus in case of insufficient assets,
the creditors cannot expect full payment.
* QUERY: What if the State or local government to which the estate
of the deceased person was assigned, refuses or neglects to pay the
Creditor of his claim against the estate in the escheat proceeding
made through a motion within 5 years, what is his option?
The remedy of the creditor is to commence a settlement
proceeding. The creditor has personality to commence a settlement
proceeding because he is a person interested in the estate of the

57
deceased person.
(MAST: This remedy presupposes that a motion has been previously
filed in the escheat proceeding. This is resorted only in case of
unjustified refusal of the State to pay his claim. This is only my
opinion, but there appears to be a irreconcilable conflict with the
other query.)
(MAST: What will happen to the escheat proceedings in case a will is
discovered and an heir appears? It seems that when that happens,
the escheat proceedings will be voided if it is still pending since it
was instituted on the assumption that there is no will and that there
is no heir, it loses the basis for the institution.
However, another scenario is that when the escheat has
already become final and executory and the heir appears within the
5 year period to file his claim: Can he file a settlement proceeding?
The Jara lecture says No since there is a remedy provided by law,
that is, to file a claim in the escheat proceeding. If an heir files a
settlement proceeding, it seems that it is his right and option to do
so and in fact it is only an indication that the escheat proceeding is
already moot. However, the property is already with the State and
thus I believe that the claim within 5 years is the best remedy. At
this point, it remains unclear whether if a claim is filed by an heir or
a creditor or any interested person the escheat court will act as a
settlement court in reverting the property back to the heirs or giving
the creditor his shares. Because if the escheat court will just revert
the whole estate to an heir, without determining whether the heir is
indeed the heir and that there are no creditors, there will be
difficulty in the future if a creditor appears within the 5 year period.
Another scenario is when a will or an heir appears after the
period of 5 years within which to file a claim. Is he barred from filing
a petition for settlement of estate? There is no question that the
properties are already with the State and such is already binding on
the whole world. However another question arises: Is the bar of
claims binding on heir who has a will, considering that the right to
present a will does not prescribe? I believe that the fact that there is
already an escheat proceeding, it is somehow determined in that
court that there is reasonable ground to believe that there is no heir
and no will existing. The prescriptive period of 5 years within which
to file a claim serves as a limit on the imprescriptible character of
the right to present a will. The purpose of the Rule on escheat is to
put a rest on the status of a property when the existence of the
heirs or will is in great doubt. The remedy under this view possibly is
to file an action under Rule 38 or Rule 47 since there is already a
final and executory judgment and the prescriptive period of 5 years
to file a claim has elapsed.
There is a view, that when it is the heir who presents a will
and with or without a claim against the estate in any period, the
escheat proceedings will automatically be mooted if pending and
void if already entered. It was argued that the 5 year period is only a
prescriptive period against creditors and not against heirs who have

58
a will. This view is consistent with the imprescriptibility of presenting
the will for probate. Thus when there is a will and an heir, probate
proceedings always prevails and can always be commenced.
To reconcile the views, I believe that when it is only an heir
without a will who appears and it is belatedly only after 5 years, he
cannot institute a settlement proceeding and is barred forever. The
case is different when the heir has a will, he has the option of filing
within 5 years a claim or if that is not entertained by the escheat
court, he has the personality to file an independent settlement
proceeding. After 5 years, in consonance with the principle of
imprescriptibility he may always commence a settlement
proceeding.)

HABEAS CORPUS
I. Jurisdiction
* The jurisdiction over these petitions is given to all courts in our
system.
* In the case of inferior courts, they are given interlocutory
jurisdiction under BP 129 Sec 35: that is if there is a certification
that all the judges in of the RTC in that district are absent.
* QUERY: What courts may entertain petition for habeas corpus?
ALL the courts namely the:
1. Supreme Court: Constitution;
2. CA: BP 129 Sec 9 (1);
3. RTC: BP 129 Sec 21 (1);
4. Family Courts: Law creating Family Courts; (SEE Circular on
Custody of Minor)
5. Even inferior courts in the exercise of special jurisdiction in
certain instances (SEE Sec 35 BP 129);
*QUERY: In the Law creating Family Courts, it is provided that
Family Courts have EXCLUSIVE ORIGINAL JURISDICTION over petition
for habeas corpus involving minors. Does this mean that the SC, CA,

59
and RTC cannot take cognizance of this petition for habeas corpus
involving minors?
NO. The said courts remain to have concurrent jurisdiction
over a petition for habeas corpus involving minor children,
notwithstanding the provision of the Law creating the Family Courts
on its exclusive original jurisdiction.
REASONS:
(a) As to the Supreme Court: This petition could still be filed with the
SC because it is provided in the Constitution that the Supreme Court
cannot be deprived of its original jurisdiction provided in Sec 5 Art
VIII;
(b) As to the CA and RTC: The SC issued a CIRCULAR stating that the
CA and the RTC COULD ENTERTAIN the petition for habeas corpus
involving minors, notwithstanding the provision that the Family
Court has exclusive original jurisdiction over habeas corpus
involving minors. Moreover, the CA and RTC have jurisdiction even if
the Law creating Family Courts is more recent than BP 129.
* We do not observe the principle of hierarchy of courts when it
comes to the applications for the writ of habeas corpus. The writ
extends to all cases where the detention is illegal or there is
unlawful restraint.
* Review the applicability of the principle of hierarchy of courts in
Rule 65 (express) and in Rule 66 (no mention) in case of
concurrence of jurisdiction.
* Even if the petition is filed directly with the SC, the petition will not
be dismissed since the rule on hierarchy of courts is not applicable
(no reason was mentioned by Dean Jara). The SC can just issue an
order directing that the return should be heard by a RTC or CA as
provided in Rule 102 Sec 2.
II. Illegal Detention
* If the detention is illegal at the start but if at the time of the filing
of the petition, the detention has become lawful, the petition for
habeas corpus will be denied.
* If the detainee himself tells the court that he is not being illegally
detained, that he has voluntarily submitted himself to this unlawful
restraint that will render the petition moot and academic.
* If the detention is illegal at the time of the time of the filing of the
petition but after the filing the detainee is already released from
custody that will also render the petition moot and academicbecause the petition has already achieved its purpose.

60
III. Preliminary Citation
* The court can give due course to the petition right away, even if
the respondent is not given the chance to be heard. The court may
issue the writ of habeas corpus right away, if after evaluation of the
petition, the court finds the allegations to be true and correct, that
is, the detention is unlawful and illegal. (SEE Sec 5) If, however, the
court has doubts as to the merit of the petition, then only a
preliminary citation will be issued which is in effect a show cause
order of why the writ of habeas corpus should not issue.
* So if there is doubt arising from the contents of the application
whether the detention is illegal, the court will not issue right away a
writ of habeas corpus. The court will simply issue what is called as a
preliminary citation. It is an order issued by the court directing the
respondent to show-cause why the writ of habeas corpus will
(should) not be issued. (SEE Sec 6)
* There is no summons issued in the petition for habeas corpus just
like other special proceedings. But what is issued is a preliminary
citation requiring a respondent to make a return. The idea of a
return is peculiar to habeas corpus. The return serves as an answer.
(SEE Sec 6 and 8)

IV. Nature
A. Substantive point of view: Constitution: The SC held that restraint
for purposes of habeas corpus does not only mean physical
restraint. It could also extend to psychological or moral restraint.
B. Procedural point of view: The SC described habeas corpus as a
proceeding that is SIMILAR to an in rem proceeding, but not a
genuine in rem proceeding:
REASONS:
(a) There is a petitioner and there is a respondent;
(b) There is no requirement for publication;
COMPARE:
* The SC said that even if the petition for habeas corpus does not
have the features of the other special proceedings (absence of a
respondent, publication and service upon interested parties) IT IS A
PROCEEDING IN REM. (MASTER: The Old Magic Notes seems to be
unsure of the true nature of habeas corpus proceeding, unlike the
categorical statement in this more recent lecture.)
* The petition for writ of habeas corpus is a very peculiar
proceeding. The SC has held that it can be commenced even if he
petition is sent by telegram to a court. The SC considers this a

61
proper filing. Courts are not strict with formalities since the
proceeding pertains to a writ of liberty.
V. Return
* The respondent is required also to answer and this answer is called
the RETURN in habeas corprus.
* Two kinds of return:
(a) made by public official: if there is compliance with the
requirements of oath, verification, explain the reason for
detention and give documents authorizing the detention: his
return is PRESUMED to be an evidence of the legality of the
detention;
(b) made by a private individual: the allegations contained in
the return must be proven by the private individual; (SEE Sec
13)
* The SC said that if the petitioners denied that the detainee has
been released, that is contradictory to what the respondents have
submitted to the court in the return stating that the detainee has
been released. It is the duty or burden of the respondents to prove
that there has been actual release. (This is similar to a situation
where a defendant puts up an affirmative defense the burden shifts
to him.)
VI. Appeal
* The remedy to challenge a writ of habeas corpus issued by the
court is to appeal from this order.
(MAST: Is there an instance where Rule 65 can be used?)
* The general principle on appeals in special proceedings is found in
BP 129: which is by record on appeal within 30 days from judgment
or final order.
* PROBLEM: In case of a petition for habeas corpus, there are
Conflicting Decisions:
- Older decisions: 30 days
- Old decisions: 15 days
- Recent: 48 hrs
* UPDATE: Fortunately, a CIRCULAR was issued by the SC clarifying
the conflicting decisions. It stated that the 48-hour period is the
CORRECT period to appeal. The reason why the SC made previous

62
erroneous decisions: because the SC did not take into account Sec
39 of BP 129 providing for the 48 hour period in case of an appeal
from habeas corpus proceeding.
According to the SC there is nothing in the Rules that will
prohibit the party to file a motion for reconsideration. And if such
motion for reconsideration is filed the 48 hrs start from the receipt
of the order denying the motion for reconsideration.
The appellant is not required to file a brief. Instead, the parties
are to submit a memorandum. The period (30 days from receipt of
notice issued by the clerk that all the evidence oral and
documentary, is already attached to the record) of submission of
said memorandum is non-extendible; (SEE Rule 44 Sec 10)
* Note that the enumeration in the Rules of Court of special
proceedings is not exclusive. Among those provided by law,
particularly the Family Code, are summary special proceedings for
the annulment of marriage and declaration of nullity of marriage.
In summary special proceedings provided in the Family Code
we do not use the 30-day period or the general rule in special
proceedings.
QUERY: So what period of appeal do we use?
The SC has rendered conflicting decisions on this matter. In
one of its decisions it held that the period to appeal is 15 days. In
another decision it held that the judgments in summary special
proceedings in the Family Code are immediately executory (SEE Art.
247 of Family Code in relation to Rule 41 Sec1 f), thus the remedy is
Rule 65. (SEE Circular Rule on Declaration of Nullity of Void
Marriages and Annulment of Voidable Marriages where in so far as
appeal of actions on void and voidable marriages are concerned Sec
20 is clear on two things: (1) a motion for reconsideration and new
trial within 15 days from notice of judgment is a precondition; (2)
the appeal is by notice of appeal within 15 days from notice of
denial of MR and MNT)
* Note that as a general rule in special proceedings enumerated in
the Rules of Court, we apply the 30-day period of appeal, EXCEPT
habeas corpus and custody of children proceedings which follow
their different respective periods. (SEE Sec 19 of AM 03-04-04 SC,
which is very identical to Sec 20 of AM 02-11-10 SC)
(MAST: Add to this list are the summary special proceedings on
annulment of marriage and declaration of nullity which, like custody
of children proceedings, the period to appeal is also 15 days.)
VII. Damages
A. Recovery of Damages Prohibited

63
* QUERY: If the court finally decides that the petitioner was really
deprived of his liberty or there was unlawful detention, can it award
damages in favor of petitioner and against respondent?
NO. This is not allowed. Even if there is a finding that the
respondent is guilty for violating the right of the petitioner or that
there was indeed unlawful deprivation of liberty, the court does not
have authority in special proceedings to award damages. The court
in special proceedings is always a court of limited jurisdiction. In
case of a petition for habeas corpus, the only power of the court is
to make a finding as to whether or not there is unlawful detention or
deprivation of liberty.
REMEDY: The petitioner or aggrieved party can file an ordinary
independent action for recovery of damages. And there is no time
frame for the filing of such action for damages unlike in the case of
quo warranto. The said action is not barred by res judicata under
Rule 39 Sec 47 (b) - in the first place it is a matter that could not
have been tried or even raised because the Rules prohibit it to be
raised. (SEE Secs 16 and 18)
B. Rules 65, 66 and 102: As to the Propriety of Ordinary Independent
Action for Recovery of Damages:
(a) Rule 65, mandamus: if the court makes a finding in favor of
petitioner for recovery of damages;
- Independent action: No. The remedy is a motion in the same
special civil action for recovery of damages;
- Res judicata: Yes. The award of damages is a matter that could
have been decided;
- Time frame: None, there is no provision identical to quo warranto;
(b) Rule 66, quo warranto:
- Independent action for recovery of damages is allowed: the Rules
themselves allow;
- Res judicata: None. Since the Rules allow it;
- Time frame: Yes, within 1 year from the termination of the
proceedings;
(c) Rule 102:
- Independent action: Yes. As explained above.
- Res judicata: None. As explained above;
- Time frame: None;
VIII. Comparison: Writ of Habeas Corpus, Writ of Amparo and
Writ of Habeas Data
WRITS OF:

HABEAS CORPUS

AMPARO

DATA

LEGAL BASIS

RULE 102

AM 07-9-12 SC

AM 08-1-16-SC

Habeas
Corpus in
FC
AM 03-0404 SC: Sec

64
20
MAST:
There is no
express
ground, but I
am of the
opinion that
the ground is
provided by
Rule 102
Sec 1: by
which the
rightful
custody of
any person
is withheld
from the
person
entitled
thereto
Note: Sec 1
The Rules
of Court
shall apply
suppletorily
.

REMEDY

To all cases of illegal

confinement or detention:
1. by which any
person is
deprived of his
liberty; or
2. by which the
rightful custody
of any person is
withheld from
the person
entitled thereto
(Sec 1)

To any person whose

right to life, liberty and
security is violated or
THREATENED with
violation by an
unlawful act or
omission of a public
official or employee, or
of a private individual
or entity. (Sec 1)

To any person
whose right to
PRIVACY in life,
liberty or security is
violated
THREATENED
with violation by an
unlawful act or
omission of a public
official or
employee, or of a
private individual or
entity engaged in:
1. Gathering
2. Collecting
3. Storing
Of data or
information
regarding the
person, family,
home and
correspondence of
the aggrieved party;
(Sec 1)

PETITIONER

Sec 3:
By the party for whose
relief it is intended, or by
some other person on his
behalf

Sec 2:
By the aggrieved party,
or by any qualified
person or entity in the
order provided in Sec 2

Sec 2:
General Rule:
- the aggrieved party
Exception:
- in cases of
extralegal killings
and enforced
disappearances by:
1. immediate family
2. in default of no.
1, ascendant,
descendant or
collateral relative
within the 4th civil
degree of
consanguinity or
affinity

MAST: No
mention
again but I
think the
person
entitled to
custody or
claiming
custody Sec
3

PROPER COURTS

Sec 2:
1. SC or any member
thereof;
2. CA or any member
thereof;and
3. RTC , or any judge
thereof;
4. BP 129 Sec 35:
Special jurisdiction of
MTC;

Sec 3:
* Courts where it may
be filed:
1. RTC of the place
where the threat, act or
omission was
committed or any of its
elements occurred;
2. Sandiganbayan or
any of its justices;
3. CA or any of its
justices;
4. SC or any of its
justices;

Sec 3:
1. RTC;
2. Sandiganbayan,
SC and CA: when
action concerns
public data files of
government offices;

Sec 20
1.Family
Court;
2. RTC:
In the
absence of
the presiding
judge of the
FC,
provided
however that
the regular
court shall
refer the
case to the
Family
Court as
soon as its
presiding
judge

* Sandiganbayan, only in
aid of its appellate
jurisdiction

65

VENUE

Rule 4 Sec 2

Sec 3:
* SC, CA,
Sandiganbayan:
Manila;
* RTC: of the place
where the threat, act or
omission was
committed or any of its
elements occurred;

Sec 3:
* SC, CA,
Sandiganbayan:
Manila;
* RTC
A. Where the
petitioner resides
B. Where the
respondent resides
C. which has
jurisdiction over the
place where data or
information is
gathered etc.
All the OPTION of
the petitioner.

EXTENT OF
ENFORCEABILITY

* SC, CA and
Sandiganbayan:
anywhere in the
Philippines;
* RTC: only within his
judicial district

Anywhere in the
Philippines

Anywhere in the
Philippines

When to File

Sec 2:
On any day and at any
time
HABEAS CORPUS

Sec 3:
On any day and at any
time
AMPARO
Sec 4:
Exempt

REQUISITES OF
PETITION

Sec 3:
Signed and verified
* Vide the contents

Sec 5:
Signed and verified
* Vide the contents

ISSUANCE OF THE
WRIT

Sec 5:
When it appears ought to
issue: immediately

Sec 6:
When in its face ought
to issue: immediately

SUMMARY HEARING

Sec 12:
Hearing on return;
Adjournment
- seems to be immediate
after receipt of return
Sec 4

Sec 6:
Not later than 7 days
from the date of its
issuance

Sec 7:
Not later than 10
work days from the
date of its issuance

Sec 8:
If the writ cannot be

Sec 9:
If the writ cannot be

WRIT OF:
DOCKET FEES AND
OTHER LAWFUL
FEES

WHEN NOT
ALLOWED
TO WHOM WRIT
DIRECTED
HOW SERVED

HABEAS DATA
Sec 5:
Exemption applies
to an Indigent
petitioner only
Sec 6:
Verified written
petition
* Vide the contents
Sec 7:
When in its face
ought to issue:
immediately
* Note however that
there is a provision
of service within
three days unlike in
WOA and WHC
where there is no
such period;

Sec 6
Sec 7:
Service of the writ shall

returns to
duty;
3. SC, CA or
any of its
members;
Sec 20:
* Family
Court where
the
petitioner
resides or
where minor
may be
found;

* FC: within
its judicial
region
where the
FC belongs
* SC, CA:
Anywhere in
the Phils.

Sec 20:
Verified
petition

66

CONTENTS OF
RETURN

HOW WRIT
EXECUTED AND
RETURNED
DEFECT OF FORM
WHEN RETURN
EVIDENCE, AND
WHEN ONLY PLEA
WHEN PERSON
LAWFULLY
IMPRISONED
RECOMMITTED, AND
WHEN LET TO BAIL
WHEN PERSON
DISCHARGED IF NO
APPEAL
PENALTIES

be made by leaving the

original with the person
to whom it is directed and
preserving a copy on
which to make return of
service. If that person
cannot be found, or has
not the prisoner in
custody then the service
shall be made on any
person having or
exercising such custody.
Sec 10:
- signed; and shall also be
sworn to if the prisoner is
not produced

served personally on
the respondent, the
rules on substituted
service shall apply.

served personally on
the respondent, the
rules on substituted
service shall apply

Sec 9
- verified written
return;
- period to file cannot
be extended except on
highly meritorious
ground;
- the extension seems to
be through motion
since it is not anymore
a prohibited motion;
- general denial
disallowed

Sec 10:
- verified written
return;
- may be reasonably
extended BY THE
COURT for
justifiable grounds;
- general denial
disallowed;

Sec 7:
Clerk of court:
- refuses to issue a writ;
Deputized person:
- refuses to serve the
writ;
Penalty:
Contempt without
prejudice to other
disciplinary actions;
Sec 16:
Respondent:
- who refuses to make a
return;
- makes a false return;
Any person:
- who disobeys or
resists a lawful process
order of the court
Penalties:
1. contempt
2. imprisonment

Secs 8 and 11:

Same as WOA

NOTE: a motion to
extend to file a
return is prohibited
under Sec 13 (b)

Sec 8
Sec 9
Sec 13
Sec 14

Sec 15:
If the respondent does not
desire to appeal, the
petitioner shall be
forthwith released
Sec 16:
Clerk of court:
- refuses to issue a writ:
Person to whom the writ
is directed:
- who neglects or refuses
to obey or make return
- makes false return
- refuses to deliver within
6 hrs after demand a true
copy of the warrant or
order of commitment
* Penalties:
1. forfeit to the party
aggrieved the sum of 1K,
to be recovered in a
proper action;
2. contempt;

67
3. fine
PERSON
DISCHARGED NOT
TO BE AGAIN
IMPRISONED
WHEN PRISONER
MAY BE REMOVED
FROM ONE
CUSTODY TO
ANOTHER
RECORD OF WRIT;
FEES AND COSTS
DEFENSES NOT
PLEADED DEEMED
WAIVED
WHEN DEFENSES
MAY BE HEARD IN
CHAMBERS

PROHIBITED
PLEADINGS AND
MOTIONS

Sec 17

Sec 18

Sec 19
Sec 10:
Sec 12:
* Defenses may be
heard in chambers,
which is not
available in WOA
Except may be in
Sec 14 (b) IO & (c)
PO on Interim
Reliefs
Sec 11:
- motion for extension
of time to file return
not prohibited

Sec 13
* It appears that
motion to file a
return here is
expressly prohibited
unlike in WOA,
however it seems
that the 5 day period
may be extended
motu propio by the
court, See Sec 10
herein
* It is confirmed in
par. k, that interim
relief orders may
also be availed of in
here as may be
necessary (possibly
TPO & WPO, not
IO & PO which will
be redundant) See
and compare also
Sec 6 especially par.
E and Sec 14 of writ
of amparo;

EFFECT OF FAILURE
TO FILE A RETURN

Sec 12:
- proceed to hear the
petition ex parte

Sec 14
* If you will
compare the
provisions, in WOA
the phrase
"..granting the
petitioner such relief
as the petition may
warrant unless the
court in its

68

SUMMARY HEARING
2

Sec 13

discretion requires
the petitioner to
submit evidence" is
not found.
Sec 15
* This statement is
found in WOA: The
hearing shall be
from day to day
until completed and
given the same
priority as petitions
for habeas corpus.

INTERIM RELIEFS

AVAILABILITY OF
INTERIM RELIEFS TO
RESPONDENT
BURDEN OF PROOF
AND STANDARD OF
DILIGENCE
REQUIRED
JUDGMENT

Sec 12:
1. unless for good
cause shown the hearing
is adjourned, in which
event the court shall make
an order for the safe
keeping of the person
imprisoned or restrained
as the nature of the case
requires;
2. the court or judge must
be satisfied that the
person that the illness is
so grave that he cannot be
produced without danger;

Sec 14

Sec 15
Sec 17

Sec 15

Sec 18

Sec 16:
Substantially the
same as WOA but
with this additional
statement:
Upon its finality,
the judgment shall
be enforced by the
sheriff or any lawful
officers as may be
designated by the
court, justice or
judge within 5
working days
Sec 17:
The officer who
executed the final
judgment shall make
a verified return
within 3 days from
its enforcement
Sec 18

Sec 15 in relation to Sec 3

of Rule 41 and Sec 39 BP
129:
48 hrs from notice of
judgment appealed from

Sec 19:
Rule 45 by petition for
review on certiorari
with peculiar features:
1. appeal may raise

Sec 19:
Same as WOA

RETURN OF SERVICE

HEARING ON
OFFICERS RETURN
APPEAL

MAST: As already
opined, TRO and
WPO may be
available. We cannot
avail of IO and PO,
because this will be
absurd. The writ of
habeas data is
prayed for similar
purposes as IO and
PO.

Sec 19 of
circular and
RA 8369
Sec 14:
Decisions

69
by ordinary appeal

questions of fact or law

or both;
2. period of appeal
shall be 5 working days
from the date of notice
of the adverse
judgment;
3. same priority as
habeas corpus cases

ARCHIVING AND
REVIVAL OF CASES
INSTITUTION OF
SEPARATE ACTIONS
EFFECT OF FILING
OF A CRIMINAL
ACTION
CONSOLIDATION

Sec 20

SUBSTANTIVE
RIGHTS

Sec 24

SUPPLETORY
APPLICATION OF
THE RULES OF
COURT
APPLICABILITY TO
PENDING CASES

Sec 21
Sec 22
Sec 23

Rule 72 Sec 2

Sec 25

Sec 26

and orders
of the court
shall be
appealed in
the same
manner as
appeals from
the ordinary
RTC thus
Rule 41 by
notice of
appeal
within 15
days with
peculiar
feature as
provided in
the circular:
there must
be first a
motion for
reconsiderati
on or new
trial within
15 days
from notice
of judgment;

Sec 20
Same as WOA
Sec 22
Same as WOA
Sec 21
Same as WOA
Sec 23:
* the only difference
to Sec 24 is the
mention in WOA of
a particular law
from which the
substantive rights
arise, the
Constitution;
Sec 24
Same as WOA

70

GUARDIANSHIP
I. Jurisdiction
* The Family Courts (FC) exercise exclusive and original jurisdiction
over the petitions for guardianship.
* Substantive law provided in:
1. Family Code; and
2. Law creating Family Courts Family Courts Act, RA 8369;
* In order to update the guardianship proceedings pursuant to said
substantive laws, an Administrative Circular was issued by the SC.
(SEE AM 03-02-05 SC)
* RTC :
- has jurisdiction over guardianship proceeding involving an
incompetent who is not a minor:
- QUERY: What is the source or basis of the in circular saying that
RTC and not FC has jurisdiction over incompetents?
A: The basis is found in BP 129 Sec 19 par. 7 providing that the RTC
will be exercising exclusive original jurisdiction over all civil actions
and special proceedings that used to be cognizable by the Old or
Former Juvenile and Domestic Relations Court. BP 129 has done
away with the said OLD COURT and decided to transfer the authority
over the cases, which includes guardianship proceeding over
incompetents who are not minors, to the jurisdiction of the RTC.
- SEE definition of incompetent in the Rules:
* FAMILY COURT:
- has jurisdiction over guardianship proceeding over a minor as
provided by the Law creating the Family Court or Family Courts Act,
RA 8369 Sec 5 par. b;
- when the incompetent is also a minor then the jurisdiction must be
in the Family Court;
II. Appointment of GENERAL Guardians
* The appointment of a guardian that is exclusively given to a Family
Court is the appointment of a GENERAL GUARDIAN not the
appointment of a GUARDIAN AD LITEM, which is inherent in any
court before which a civil action is pending as long as one of the
parties is a minor who needs a guardian ad litem.
* There is no requirement of publication, simply require the court to
serve copies personally to parties named;

71
* General Rule: There is no need for publication; (SEE Rule 93 Sec
3)
Exception: In case of guardianship over the properties of the minor
or incompetent who is a non-resident, the Rules give authority to
the court to order publication. Thus in this case there is a need for
publication. (SEE Rule 93 Sec 6)
* The General Guardian could be a:
1. over the person only;
2. or over the property only; or
3. both over the property or person;
* There could be two guardians appointed by the same guardianship
court. (SEE Rule 93 Sec 1 and Circular)
NOTE:
Art. 1060 NCC: A corporation or association authorized
to conduct the business of a trust company in the Philippines
may be appointed as an executor or administrator, guardian of an
estate, or trustee, in like manner as an individual; but it shall not
be appointed guardian of the person of the ward.
* QUERY: Can this same order (appointing two guardians) be issued
in a settlement proceeding, meaning to say can the court appoint
administrators of the same estate?
A: Yes, there could be more than one executor or administrator
(execad) in a settlement proceeding. These matters are left to the
discretion of the settlement court. (SEE Sec 6 Rule 78)
* Similarities with execad:
1. an officer of the court;
2. bound to obey the orders of the court;
3. required to file a bond;
4. to submit an inventory of the properties of the ward;
5. to submit an accounting of the properties under his care
and management;
6. can also sell, dispose of, and mortgage the properties of the
ward as long as these things are done always with the
approval of the guardianship court.
* Difference with execad:
When an execad is given authority to sell or mortgage
properties of the estate, there is no time limit given for the sale and
encumbrance of these properties.
WHILE in the case of guardians, he must sell the property of a
ward within a period of one (1) year, otherwise his authority ceases
to be effective. He must ask the court for the renewal of that
authority.

72
* If the guardian sells the property of the ward without prior
authorization from the guardianship court, the same will be null and
void.
III. Circular: In Case of a Minor
* The procedure prescribed in the circular is almost an identical
procedure to the settlement of estate: petition states:
1. jurisdictional facts;
2. identity of the ward
3. value of the property of the ward
4. person asking for the issuance of letters of guardianship
* Circular recognizes classification:
1. natural,
2. judicial
3. general,
4. over property,
5. over person,
6. ad litem
7. decisions: de facto guardian?
* Administrative Circular and Rules: Factor in:
- Rule 3 Sec 5 and 18 on guardian ad litem; and
- Rule 14 how summons is served upon a minor or
incompetent
* In petition for guardianship of a minor the best evidence of
minority is the birth certificate;
IV. Guardian Ad Litem
* Appointment of Guardian Ad Litem of a minor or an incompetent
who is not a minor:
QUERY: Is the appointment of a guardian ad litem for a minor
exclusively cognizable by the Family Court? Is the appointment of a
guardian ad litem for incompetent exclusively cognizable by the
RTC?
Principle: Any court before which the principal case is
pending has the authority to appoint a guardian ad litem. The SC
ruled that the appointment of a guardian as litem is only an incident
to a principal action. It is not necessary for anyone of the litigants to
file an independent petition for appointment of a guardian ad litem.
EXAMPLE:
More particularly if the defendant is an incompetent, an
inferior court can possibly take cognizance. This is if the recovery of
damages is only for 250K for an act of negligence of a minor.

73

* The appointment of a guardian ad litem is only for a very limited

purpose for the protection of the interest in the particular case. After
case has ended then the authority also ends.
* The appointment of a guardian ad litem: assumes or presupposes
that there are no parents (natural guardians) or judicial guardians.
Thus, if there is already a judicial guardian appointed by the court, it
is improper for a court to appoint a guardian ad litem.
V. Evidentiary Matter: Rule on Object Evidence
* In the trial of a petition for guardianship over a minor or
incompetent who is not a minor, the law mandates the application
of the Rules of Evidence, particularly the RULE ON OBJECT
EVIDENCE. The law requires that the minor himself or the
incompetent himself must be present. This is for the court or judge
to easily ascertain whether the minor or ward is indeed a minor; or
the incompetent or ward is really an incompetent who is not a
minor. (SEE Rule 93 Sec 5; AM 03-02-05 SC Sec 11, and 12: in case
of non-resident minor the court may dispense with the presence)
VI. Rule 93 on Incompetents
A. Filing of the Petition:
* The petition will allege that there is an incompetence and that the
person is:
1. suffering from civil interdiction;
2. a hospitalized leper;
3. a prodigal;
4. deaf and dumb who are unable to read and write
5. insane, even though they have lucid intervals;
6. even if not insane but by reason of age, disease, weak mind,
and other similar causes, cannot without outside aid, take care
of themselves and manage their property, becoming an easy
prey for deceit and exploitation;
(SEE Rule 92 Sec 2; Civil Code Art. 38)

B. Contest as to Incompetence
* In case of petition for guardianship of an incompetent, there
should be a declaration by the court that he is an incompetent; (SEE
Sec 5 Rule 93)

74
* It is possible that nobody will appear to contest the allegation in
the petition that there is an incompetence. However, it is also
possible that an interested person will file an opposition contesting
the allegation that the proposed ward is incompetent. If there is an
issue or factum probandum as to the incompetence of the proposed
ward, it must be first adjudicated by the guardianship court. If the
court says that the proposed ward is incompetent, then the court
can proceed to the appointment of the guardian. (SEE Secs 4 and 5
Rule 93)
QUERY: Is the order of the court adjudicating that the proposed
ward is indeed an incompetent an interlocutory order?
NO. The order of the court declaring the proposed ward as
indeed incompetent is a final order, although there are other
proceedings to be taken by the court like the appointment of the
guardian. The order being a final order, it can therefore be
appealed. (SEE Sec 1 e Rule 109)
C. Rule of Evidence: Presumption that the Person is Capacitated to
Act
* The trial court is bound to follow the presumption that a person is
capacitated to act: presumption on competency.
It is the duty of the petitioner to prove to the court that the
proposed ward is really incompetent.
QUERY: What is the quantum of proof to defeat the presumption of
competence?
It is clear and convincing evidence, not preponderance of
evidence. The reason is that there is a presumption in law that the
person is competent. (SEE Rule 131 Sec 3; Art. 37 NCC)
* Just like in ordinary civil actions, when there is an allegation of
fraud or bad faith, the presumption in law is that the parties to the
contract have acted in good faith. The quantum to destroy the
presumption of good faith is always clear and convincing evidence.
VII. Issuance of Notice and Service Thereof
* QUERY: Upon the filing of petition, will the court issue summons
to acquire jurisdiction over respondent?
No. The petitioner does not implead a particular respondent. This
is because a guardianship proceeding is a proceeding in rem.
But unlike settlement proceedings where notice and publication
requirements are jurisdictional, the law does not require the court in
guardianship proceeding to issue an order setting the case for
hearing which should be published. The law only requires personal
notice which must be served upon ward himself (if he is at least 14
years of age) or persons interested. The guardianship proceedings
do not require service of summons, there is just a notice to
interested persons. (SEE Sec 3 Rule 93; AM 03-02-05 Sec 8)

75

* Guardianship is an in rem proceeding since it concerns the STATUS

of the person under Rule 39 Sec 47.
VIII. Guardian has already been Appointed
A. Comparison: Settlement Proceeding and Guardianship
(1) Settlement:
* Query: Are there substantial differences as to the duties with
respect to the settlement of indebtedness of a ward and the
settlement of indebtedness of the estate?
There is a difference.
Recall that in settlement proceedings, it is the duty of the
creditors of the estate arising from a contract express or implied, to
submit or file their claims in the intestate or estate court within the
period of Statute of Non-claims, otherwise it will be barred. It is the
estate or intestate court that determines the validity of claims. If the
court determines the claim as valid, even if the order approving the
claim has been entered, the creditor cannot move for execution. The
creditor must wait for the court to issue an order directing the
execad to pay the indebtedness. The court decides the merit of a
claim for money presented to the court within the statute of
limitations. However in case of claims for recovery of personal or
real properties, these matters must be decided in a separate
proceeding or action.
WHILE
Guardianship:
* QUERY: Can the guardianship court approve or disapprove the
claims against the ward?
NO. Although it is also the duty of the guardian to pay and
settle indebtedness against the ward, in guardianship cases there is
no such thing as Statute of Non-claims. If the creditor has a claim
against the ward, he cannot file said claim in the guardianship court.
The guardianship court has no authority to pass upon merits of the
claim. The remedy is to file an ordinary case in court against the
guardian in a court of general jurisdiction (which may also be the
same guardianship court but now in the exercise of its general
jurisdiction). If the minor or incompetent has no guardian, the
creditor may file a complaint against the minor or incompetent and
then seek for appointment of a guardian ad litem. (SEE Sec 3 Rule
96; Rule 3 Sec 18; AM 03-02-05 Sec 17 b)
NOTE:

76
The minor may be sued because he can enter valid contracts
like a contract of sale when the minor buys necessaries. (SEE Art.
1489 NCC) Most of the contracts entered into by a minor are
voidable, nonetheless he can be sued as a minor since they are
valid until annulled. (SEE Art. 1390 Sec 1 NCC)
* Under the Rules the representative party must implead the real
party-in-interest. (SEE Rule 3 Secs 3 and 5)
* The creditor can move for execution in case of final and executory
judgment against the guardian as representative of the ward in an
ordinary case of recovery of sum of money. Thus the guardian is not
immune from execution (but note the court that will execute is not a
guardianship court). In settlement proceeding, the estate is immune
from execution in case of claim for money under Rule 86. (MAST:
Note that the execad is not immune from execution when the claim
is for real or personal property or for damages arising form tort
under Rule 87)
* QUERY: If the ward is sued, the guardian must represent the ward.
And if guardian is convinced that there are properties with third
persons, can the guardian ask the guardianship court to order the
third person to appear for examination? Yes (SEE Rule 96 Sec 6; AM
03-02-05 Sec 18 c), but if the third person says he is owner can the
guardianship court conduct a trial?
No, the guardianship court is a court of limited jurisdiction. It
can only resolve incidents pertaining to guardianship. It cannot
resolve dispute over title.
(2) There is a need to compare the power of guardian and the
power of the execad to convey or dispose properties. Rule 89 vs
Rule 95, thus must be compared.
In settlement of the estate, there is always a need for the
execad to get the approval of court. The same is true with
guardianship proceedings, the guardian must ask the consent of the
guardianship court to be able to convey, dispose or encumber the
property of the ward.
But in case of conveyance, disposition or encumbrance by
execad of the properties of the estate, Rule 89 is more detailed and
specific. When properties of the estate are to be sold, personal
properties must be sold first as a general rule. Personal properties
cannot be encumbered, the rules frowns on this procedure (MAST:
but the settlement court has wide discretion to allow encumbrance
if it will benefit the estate). The personal properties must always be
disposed of thru a contract of sale. However, real properties may be
sold or mortgaged in order to raise funds for the estate. Thus, real
properties may be encumbered not necessarily sold in order raise
funds for the payment of debts.

77
In guardianship proceedings there is no such specific
requirement. The guardian may file a petition asking for authority to
convey, sell, dispose of or encumber either personal or real
properties. (Rule 95 Sec 1ff; AM 03-02-05 Secs 19-22)
(3) If the execad files a petition asking for authority to sell or
encumber property, the said petition can be defeated or stopped
right away by simple expedient of filing a bond by an heir in estate
or intestate court. (SEE Rule 89 Sec 3)
In guardianship proceeding, if the guardian files a petition
seeking authority to sell or encumber the property of the ward, this
cannot be stopped by filing a bond of an interested person.
In case of settlement of the estate, there is a need to hear this
petition for authority to sell or convey giving notice to ALL interested
parties. Even if the order setting the case for hearing at outset has
already been published, even if notice to creditors has already been
published; if the execad has a petition for authority to sell or
encumber properties of estate, the court can still require publication
of the order setting this petition or motion for hearing. If this
publication requirement is not complied with, being jurisdictional,
then the proceedings taken thereafter is void. (SEE Rule 89 Sec 7 b)
In guardianship, the guardianship court has no power to say
that said order setting the hearing for the petition for authority to
sell must be published. It is enough that personal notice of the
hearing of this petition is given to the interested parties. (SEE Rule
95 Sec 2; AM 03-02-05 Sec 20)
NOTE:
QUERY: In the care of the ward, the needs should be financed by
the assets of the ward, can the guardian sell and encumber the
properties to meet these finances?
Yes, with the permission from the guardianship court. The
guardian should file a correlative petition asking for leave to sell.
There shall be notice to ward, incompetent or next of kin. Then the
court finally issues the order. Is the guardian duty bound to sell the
property in public auction? No. There could be public sale or also
private sale, depending on the appreciation of the guardian of the
market forces. (SEE Rule 95 Sec 4; AM 03-02-05 Sec 22: there is
mention only of public sale, but there is use of the word may
which does not preclude private sale)
(4) Settlement:
In case of settlement proceeding, the authority to sell and
encumber does not have a fixed duration, it can be for an indefinite
period of time. This is as long as the execad complies with the other
requirements in the matter of conveyance or disposition of the
property of the estate. (SEE Rule 89)
WHILE

78

In guardianship proceeding, the duration of the authority

to sell or encumber properties is limited to a period of 1 year. After 1
year, the authority expires by operation of law unless the court
extends its effectivity. (SEE Rule 95 Sec 4)
NOTE:
The authority to sell is only for a period of one year, if it
expires the authority is revoked by operation of law. In such a case
the remedy is to file another petition asking for a new authority.
(MAST: There appears to be a conflict as to whether the court is
allowed to extend the one year period upon motion or a new verified
petition is necessary. But reading the Rules, I believe that a new
petition should be filed, for there is no showing that a motion to
extend is expressly allowed. Besides the petition must be verified
and if we allow that the period is extended through a mere motion,
it will defeat the purpose of the law which is to limit the authority of
the guardian.
Nonetheless, if the one year period has not yet expired and
there is a motion to extend, then the court may grant such motion
since there is a period to extend which has not yet expired. A
different case obtains when the period has expired, since by
operation of law there is no period to extend anymore.)
(5) If the interested parties do not agree with the appointment of
the guardian there can be an appeal. And unlike in settlement
proceedings there is no similar provision providing for a special
guardian. Some cases have ruled that the appointment of the
guardian is immediately executory as long as he files a bond and
other conditions complied with, and thus the guardian will undertake
his duties despite the appeal. Granting that the court believes,
(since this case is not included under Rule 39 on immediately
executory orders) that the decision is not immediately executory,
also under Rule 39 there can be an execution pending appeal. There
can be reasons that can justify this like: there must be someone to
take care of the interests of the ward and the rules of guardianship
are designed to benefit the best interests of the ward. The guardian
is of course required to file a bond. ????
* In some instances there is no need to file a bond. (MASTER: The
instance that there is no need to file a bond I think refers to a bank
which acts as a trust corporation. As a trust corporation it can be
appointed as a guardian over the property but not over the person
of the ward. The bond is not anymore necessary because the bank
has already filed a bond with the Central Bank when it applied for a
license to act as a trust corporation.) The duties of a guardian are
somewhat similar to execad or any person who occupies a fiduciary
position.
B. Summary

79

STATUTE OF NON CLAIMS

DETERMINES
THE
VALIDITY OF CLAIMS OF
CREDITORS
PERSONAL PROPERTIES
SHOULD BE SOLD FIRST
BOND
DEFEATING
A
PETITION
FOR
AUTHORITY TO SELL
PUBLICATION OF ORDER
SETTING THE HEARING
OF
PETITION
FOR
AUTHORITY TO SELL
DURATION
OF
AUTHORITY TO SELL OR
ENCUMBER PROPERTY
SPECIAL
ADMINISTRATOR

ESTATE OR INTESTATE
COURT
There is
Yes

GUARDIANSHIP COURT

Yes, generally
Yes

No requirement, it can either

be real or personal
No

Yes

No. Notice sufficient

Period is indefinite

1 year from granting of order

There is concept of Special

Administrator

There is no such thing as

Special Guardian

None
No authority

IX. Termination
* The guardianship should automatically end when the ward reaches
the age of majority. This is so even if no order is issued saying that
the guardianship is terminated. By operation of law the ward is
deemed emancipated and the guardian loses power. This does not
mean that the guardianship proceeding is already closed, the
guardian must still submit a final accounting; (AM 03-02-05 Sec 25)
* In case of guardianship by reason of incompetency, the
incompetent or the guardian files a petition with the guardianship
court to declare his competency. The petition is not a separate
proceeding but is considered as a continuation of the guardianship
proceeding. If the court declares the ward competent, the
guardianship ends. (SEE Rule 97 Sec 1)
*The quantum of evidence to declare incompetency is clear and
convincing evidence. To defeat a disputable presumption, the
evidence must be clear and convincing evidence.

X. Independent Special Summary Proceeding for Approval of

the Bond
There is a mention in the Rules of a summary special
proceeding for the approval of the bond. This applies when the
assets of the ward is worth at least 50,000. It is a separate
independent summary proceeding where the parents petition for the

80
approval of the bond so that they can manage the property of minor.
(SEE AM 03-02-05 Sec 16 and Family Code Art. 225)

ADOPTION
I. ADOPTION LAWS
* Do not rely on the Rules of Court instead rely on Domestic
Adoption Act (DAA) and the Inter-country Adoption Act (ICAA).
* As the title of the proceeding, this case generally covers only
minors. It is in exceptional circumstances that there could be an
adoption of a person who is already of age. (SEE RA 8552 Sec 8; AM

81
02-06-02 SC Sec 5)
* There is a provisional remedy now recognized by the said two laws
on adoption in relation to this proceeding. So a petition for adoption
may be filed and in that petition there could be a prayer for
TEMPORARY CUSTODY OF CHILDREN.
* Procedurally contents of petition in case of settlement proceedings
are similar with the contents of the petition for adoption:
1. jurisdictional facts;
2. identify persons involved;
3. Value of the estate;
4. Adopter;
5. Adoptee;
* QUERY: Do we allow adoption that is NON-JUDICIAL in character
that is we allow adoption even if there is no court proceeding at all?
Yes, under our present statutes. Under the Inter-country
Adoption Act, adoption may be authorized/decreed by the court.
(SEE RA 8043 Sec 10; AM 02-06-02 SC Sec 28)
* If it is judicial, the court that has exclusive original jurisdiction will
be the Family Court, because this is a family related case.
* The court relies heavily upon the report of the social worker,
without these reports the court will not resolve the petition. The
child study report and home study report and trial custody,
practically forms part of the jurisdictional requirements. (AM 02-0602 SC Secs 13, 15 and 16)
* The annexed consent documents are also required. They should
be annexed, because if they are not annexed the court will not
acquire jurisdiction; (AM 02-06-02 SC Sec 11)
* The privilege to adopt extends to aliens, can file a petition if he
continuously resides for 3 years in the Philippines until the judgment
is entered. By the phrase until the judgment is entered implies
that the alien may be compelled to stay for an undetermined
number of years. This is a strict requirement which discouraged
aliens from adopting. The government thus came out with the
administrative Inter-country Adoption. (AM 02-06-02 SC Sec 4 {2})
* Both in domestic and inter-country, we find penal provisions
governing Child trafficking and other violations and penalties. (RA
8552 Sec 21, 22; RA 8043 Sec 16)
* Comparison of Guardianship and Adoption:
GUARDIANSHIP

ADOPTION

82
VENUE
PUBLICATION

PARTY

Residence of a minor
or incompetent
Not required, only the
requirement of giving
notice to the parties

Residence
of
the
adopter
Required to enable the
court
to
acquire
jurisdiction (AM 02-0602 SC Sec 12; notice
that
furnishing
of
copies is discretionary
except in case of
change of name of the
adoptee the Solgen
must be notified
Not
necessarily
a Generally a minor,
minor, he could be a except in exceptional
person of age as long situations where our
as he is incompetent
law allows a person
who is already of age
to be adopted.

A. Domestic Adoption Act 1990:

- the procedure is always judicial in character
- the adoptee need not be a Filipino citizen; may be a minor or of
legal age, or may even have a spouse;
B. Inter-Country Adoption Act:
- purely administrative
- must be a Filipino citizen; must be a minor
- the law requires that there must be a certification that the
adoptee is a legally free child, that is available for adoption;
NOTE:
* The Inter-country Adoption Board (ICAB) is a quasi-judicial body.
* Must always be a minor, a Filipino and a legally free child: he has
no more parents, a declaration that he is a legally free child; (SEE
AM 02-06-02 SC Sec 29; RA 8043 Sec 8)
* What is filed in the ICAB is simply called an application; (RA 8043
Sec 10; SEE however AM 02-06-02 SC Sec 28 which used the word
verified petition)
* Practically the application can be filed abroad. There is no
requirement of period of stay in the Philippines. The matching will
be undertaken by the agencies of the Philippine and foreign
government. If the ICAB determines that the adoption is for the

83
benefit of the child, the adopter is given the permission to bring out
the proposed adoptee from the Philippines. The alien must go here
in the Philippines. There is no decree of adoption issued by the
ICAB. (SEE RA 8043 Sec 11)
* QUERY: The alien brings out of the country the minor. And the
alien and the minor is now the beyond jurisdiction of our courts. It is
possible that the alien might abuse the minor and we cannot do
anything about it. However, if he really takes care of the minor, then
who will issue the decree of adoption?
The foreign court issues the decree of adoption. (SEE RA 8043
Sec 14)
C. Resort to ICAA if DAA Fails is Possible
* QUERY: If in domestic adoption act the Family Court did not
render a decree of adoption, can the petitioner or adopter resort to
the provisions of Inter-Country Adoption Act?
Yes. In fact under the law, if the Family Court in a domestic
adoption proceeding denies the petition, one of the privileges given
to the Family Court is to study if adoption can be had under the
provisions of the Inter-Country Adoption Act. (AM 02-06-02 SC Sec
32; RA 8043 Sec 7 and 10)
* If an alien files a petition for adoption under the Domestic
Adoption Act and the FC analyzes and concluded that it will not
grant the petition, the FC will not dismiss the petition but will refer
the case to ICAB;
II. Publication Requirement
- must be strictly complied with otherwise the court will not acquire
jurisdiction over the petition for adoption;
- in the order to be published or at least in the caption of the case
the complete and correct name of the person to be adopted must be
specified;
- this complete and correct name is contained in the Office of the
Civil Registrar.
(SEE AM 02-06-02 SC Sec 12)
III. Policy of the State
Reading the Domestic Adoption Act and the Inter-country
Adoption Act, the trend seems to be that every interpretation of
these laws should be in favor of the adopted. So the SC has given
the rule that procedural laws should not be strictly applied and
interpreted as long as the interest of the adopted are well protected.

84
* The policy of the state is to apply the laws liberally in favor of the
adoptee that will benefit the adoptee whether under the provisions
of DAA or ICAA. (SEE RA 8552 Sec 2; RA 8043 Sec 2)
III. Revocation or Rescission of the Decree of Adoption
* The court that has given the decree of adoption is also the court
that has the authority to revoke or rescind that decree.
* Under the present law only the adoptee has the right to seek for
rescission. (SEE AM 02-06-02 SC Sec 19)
* Conflicting Jurisprudence on the Availability of Independent
Petition for Revocation of Decree of Adoption:
In some cases, the proceedings for the revocation of adoption
is considered as a continuation of the adoption case. But in other
cases, the SC said that there may be an independent petition for
revocation of a decree of adoption.
RESOLUTION: But this does not seem to be important anymore
because the Family Court has the authority to revoke or set-aside a
decree of adoption that has been previously given.
* QUERY: Should he file it with the same adoption court?
No. This is a proceeding different from the decree of adoption,
the petition should be filed in the court located at the residence of
the adoptee. (MASTER: From the reading of the AM 02-06-02 SC
Secs 19-25, it appears that the petition for rescission of adoption
decree is an independent proceeding. Therefore the conflicting
decisions have already been resolved by the Circular in favor of the
independence of a petition for revocation or rescission of adoption
decree.)
IV. Prohibition on Joinder in Case the Petitions are Governed
by Different Procedures not Followed
* But there is a provision not applicable in any other special
proceeding, or for that matter in ordinary civil action or special civil
action.
Under the AM 02-06-02 SC Sec 7, in compliance with Domestic
Adoption Act three different proceedings could be joined in the same
petition:
1. adoption;
2. change of name;
3. correction of entries;
* if the court wants: a petition for declaration of adoptee as an
abandoned or neglected child;

85
The general rule on joinder of causes of action in Rule 2, is that
joinder is allowed subject to several limitations to the privilege of
the person to have joinder of causes of action. In ordinary actions, if
the causes of action are governed by different procedures there can
be no joinder.
However, the law expressly allows joinder of different petitions
even if they are governed by different procedures. The SC and the
laws seem to have ignored the basic principle when it comes to
joinder of causes of action: that causes of action cannot be joined if
they are governed by different procedures.
V. Petitions Embodied in the Same Petition
* In a petition for change of name, embodied in the same petition,
there can be a petition for substantial change of a name, not only
change of name because of clerical error.
NOTE:
When there is a decree of adoption, the surname of the
adoptee is changed even without a specific order allowing the use of
the surname of the adopter. Note that the provisions refers only to
surname, there must be a petition for change of name as to first
name.
* In the petition for correction of entry, embodied in the same
petition, like a correction of entry in birth certificate; the correction
is allowed even if it is not simple clerical error, the change or
correction may be substantial.
* QUERY: If petition for adoption could embody different petitions
governed by different procedures, should the court comply with all
the requirements of each petition?
Yes. Otherwise if the jurisdictional requirements of the petition
for adoption are only complied with, the court acquires jurisdiction
over the petition for adoption, but not over the other petitions.
* JURISDICTIONAL AND MANDATORY REQUIREMENTS:
A. In case of adoption:
- the petitioner is mandated to submit the written conformity of the
adoptee; of the biological parent if they could be found; written
consent legitimate children and adopted children of both the
adopter and the adoptee, even the illegitimate children if they are
living with the adopted (AM 02-06-02 SC Sec 11)
- notice of hearing to be served upon the interested parties which
should be published once a week in three weeks; (SEE AM 02-06-02
SC Sec 12)

86
B. Change of Name
SAME AS 99 PLUS:
Rule 103: publication is also required in the caption of the
petition, the name that appears in the certificate of birth which is
sought to be changed and all the aliases, should be mentioned in
the caption of the case and order which is required to be published.
The court will not acquire jurisdiction in so far as change of name is
concerned, if there is any omission.
C. Correction of Entries
SAME AS 99 PLUS:
Rule 108: Expressly required that it should be filed in the place
where local civil registry is located. If not complied with, there is no
acquisition of jurisdiction is so far as this aspect. The local civil
registrar must be impleaded as a defendant and again there is a
separate publication

CUSTODY OF MINORS
I. Independent Proceeding for Custody of Minor
A. In Rule 99 the Title is: Adoption and Custody of Minor
B. In the circulars, custody of minor is treated as an independent
proceeding and it could even be treated as a provisional remedy.
(SEE A.M. No. 03-04-04 SC, Rule on Custody of Minors and Writ of
Habeas Corpus in Relation to Custody of Minors)
C. In cases of annulment of marriage and declaration of nullity, the
temporary custody of minor is treated as a provisional remedy. (SEE
A.M. No. 02-11-10-SC, Sec 5, Sec 21, Rule on Declaration of Void
Marriages and Annulment of Voidable Marriages)
D. Unlike Adoption, in petition for custody of children as an
independent proceeding:
1. there is a plaintiff and there is a defendant; (Sec 2)
2. there is no requirement of publication;
3. which seems to be that custody of minor is not a proceeding
in rem
4. the court issues a summons addressed to the respondent
requiring him to answer for a very short period of 5 days; (Sec
5)
5. there is no declaration of default; (Sec 9, ..or expiration of the
period to answer)
6. there is also a requirement for pre-trial, (Sec 9)

87
7. there is also a requirement where the parties submit the case
for mediation; Note that this topic of mediation is not
mentioned in other special proceedings; (Sec 12)
8. the rule on custody of minors also includes petition for habeas
corpus involving minors;
9. there is a provisional remedy of support pendente lite or after
trial that support be given permanently to the minor subject of
the litigation; (Sec 18)
10.
the period to appeal is only 15 days; (Sec 19)
NOTE:
That in BP 129 the general rule is 30 days. Circular also says
that in petition for custody of minor an appeal can not be had unless
an appellant files a motion for reconsideration or new trial, thus it is
a condition precedent for the perfection of an appeal. In Rule 65
there must first also be a motion for reconsideration before resorting
to Rule 65.
CHANGE OF NAME
* The SC has already settled that the remedies provided in Rule 103
and Rule 108 could be availed of in one and the same proceeding.
The only requirement is that the procedural requisites in these two
rules must be satisfied.
* For purposes of Rule 103, the name that could be changed, that is
judicially, is the name that is written on the certificate of birth at the
office of the local civil registrar.
* The SC has ruled that with respect to the first name or proper
name, that is almost subject to the discretion of the parents. But
when it comes to the surname, it is the law which determines the
surname that could be used by a person. The law requires that the
surname must be the surname of the legitimate father under our
civil law. (SEE Art. 365ff NCC)
* For purposes of Rule 103 a name that can be changed could either
be the surname or the first name, but the change must always be
with sufficient justification.
I. Jurisdictional Requirements: RULE 103
A. The first requirement is in the petition itself, in the caption of the
petition and in the caption of the order to be published, all the
names must be correctly written.
In the caption itself the name as it appears in the certificate,
new name and the aliases must appear in the caption. If this is not
met, the court acquires no jurisdiction.

88

B. Suppose the caption complies strictly with the first jurisdictional

requirement, the other essential requirement is the notice of
hearing. According to jurisprudence, the notice of hearing must
also contain all the names.
NOTE:
* If there is any error or change or difference between the caption
and the notice of hearing, the court will not acquire jurisdiction over
the petition, the birth certificate must be copied correctly (including
the error).
* Supposing that the change of name which the adopter seeks in the
petition for adoption is not a substantial change in name but a
correction of a clerical error or innocuous error in spelling, this will
now be covered by Rule 108.
II. In Rem Proceeding
* Petition for change of name is another proceeding IN REM:
REASONS:
(1) there is a requirement for publication (jurisdictional); (SEE Sec 3)
(2) although there is no respondent, the office of the Solicitor
General should always be notified and it is the practice of the
Solicitor General always to oppose any petition for the change of
name. (SEE Sec 4)
III. Grounds
* One of the grounds is if the name is dishonorable or if the name is
hard to write or pronounce. But if the only reason is given for the
change of name is that it could subject the petitioner to derision or
laughter whenever he uses the name, the SC ruled that this may not
be enough justification for the change of name.
* Name that could be changed is first name, middle name or
surname: this is just a privilege: policy is not to allow unless for
good reasons:
1. the petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to write
or pronounce;
2. The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that first name or nickname in the community; or

89
3. The change will avoid confusion;
(SEE 9048 Sec 4)
* Important condition imposed by SC: petitioner must show that the
petition will not prejudice any third person.
IV. Rule 103 VS Rule 108
* Rule 103 and Rule 108 although they could refer to the same issue
that is the change of name, there are also marked differences
between these two proceedings:
1. venue:
- 108: must be filed in the locality where the office of the local civil
registrar is located;
- 103: must be filed in the place where the petitioner has resided for
at least 3 years
2. parties:
- 108: the local civil registrar must be impleaded as defendant or
respondent
Reason: Rule 108 Sec 3 considers the local civil registrar as an
indispensable party.
V. Adversarial Proceedings
* The proceedings in 103 and 108 could be adversarial (meaning
there are parties who go to trial and will introduce evidence to
demonstrate the truth of their allegations) depending on the change
that is sought in Rule 108.
- if the change is substantial then the proceeding must be
adversarial;
- otherwise it will be summary in character;
(SEE Rule 103 Sec 4; Rule 108 Sec 7)

90

CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL

REGISTRY
I. Requirements (assuming it is embodied in a petition for
adoption)
(A) It is required that the local civil registrar must be impleaded as a
defendant and the petition must be filed in the place where the
local civil registrar holds office;
(B) It is required that this defendant must appear in the caption
notwithstanding the fact that petition for adoption does not have a
defendant;
(C) We satisfy the jurisdictional requirements of:
a. adoption: before the Family Court where the adopter
resides;
b. Rule 108: place where civil registry is located;
NOTE:
We must see to it that the venue of the petition for adoption
and Rule 108 is the same, otherwise we cannot join them. We can
join them as long as the residence of adopter and the place where
the local registrar holds office are the same. Otherwise a separate
petition must be filed.
(D) The notice of hearing is published;
(E) There is a need to give notice to the Solicitor General. Which is
not needed in a petition purely for adoption;
(F) The errors that should be taken up are innocuous or clerical
errors;

91
NOTE:
In the enumeration of entries that could be changed, we find
the word adoption: reason for SC to think that Rule 108 can be
joined with a petition for adoption;
II. Nature
* Looking at historical background, Rule 108 was originally designed
solely for the correction of clerical errors. So the SC ruled several
times in the past that when the correction involves substantial
matters, Rule 108 is not the correct remedy.
* The decisions of the SC modified effectively the principles given
under Rule 108, even substantial errors may be corrected by Rule
108. If there is a petition which seeks substantial correction of
entries, there must be an adversarial proceeding. If the correction is
only clerical or innocuous errors the summary proceeding applies
where plain affidavits are enough. In other words, there must be an
actual trial and the parties are given the opportunity to present
evidence. In such a case Rule 30 applies.
* Republic vs. Valencia (141 SCRA 462): Change of entry from
Chinese to Filipino, this is really not a substantial change in the
sense that a Chinese will become a Filipino; the start of a radical
change of Rule 108; SC held that Rule 108 can also be used in
substantial change of an entry provided there must be an
adversarial proceeding;
* Lee vs. CA (367 SCRA 110): from legitimate to illegitimate, this
is substantial change because it will affect the hereditary rights of
the parties: The SC allowed the change in accordance with the case
of Valencia:
NOTE:
Obiter Dictum: The SC said that under present conditions
there could also be change of sex in the entries. If a person is a gay
he converts himself into a true woman he can apply for change of
entry of Sex from male to female. (MASTER: During recitations, it
was intimated that there is a recent case that abandoned this obiter
dictum. Therefore a transsexual cannot petition for the correction or
cancellation of entries regarding his or her sexuality.)

RA 9048
AN ACT AUTHORIZING THE CITY OR MUNICIPAL REGISTRAR OR THE
CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL
ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME
IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER,
AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL
CODE OF THE PHILIPPINES

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I. Nature
* Allows the change of name administratively, only with respect to
clerical error. (SEE Sec 1)
* We now have here a statute authorizing non-judicial or
administrative correction of clerical errors that are contained in
documents under the control of the civil registrar. However it seems
that the fees collected by the local civil registrar are double the fees
that are going to be spent if the petitioner simply go to court and
resort to Rule 108 applying summary procedure.
* In Lee vs CA, the SC seems to be of the impression that in case of
request of clerical change of name, the local civil registrar has
exclusive authority. So it appears that the court is now deprived of
its jurisdiction under Rule 108. But if you read the law, there is
nothing mentioned that the authority of the local civil registrar is
exclusive. Thus, there is reason to believe that the party has still the
option of filing either with the courts under Rule 108 or
administratively under RA 9048. (MASTER: Note that Herrera and
Regalado have a different opinion)
(MASTER: Adopting the view of Dean Jara that with respect to
clerical or innocuous errors an applicant has two options,
implications arise:
FIRST, in case a final and executory decision is already rendered
under RA 9048 and the petitioner failed to have a favorable
decision, can he file a verified petition under Rule 108? In other
words, can there be res judicata, considering that one proceeding is
quasi-judicial and the other judicial?
In Administrative law, it is now well settled in our
jurisprudence that the decisions and orders of administrative
agencies like the local civil registrar under RA 9048 rendered
pursuant to their quasi-judicial authority have upon their finality, the
force and binding effect of a final judgment within the purview of the
doctrine of res judicata.
SECOND, there is a possibility of litis pendentia when both remedies
are availed of at the same time by the petitioner or applicant.
Rule 108 is judicial in character, while RA 9048 is
administrative in character. It may be argued that litis pendentia
cannot apply because the other forum is administrative. This
argument does not hold water because, though it is true that the
proceeding is administrative, RA 9048 gave the administrative office
of the local civil registrar the quasi-judicial authority to determine
whether or not there is a clerical error in the subject entry. In litis
pendentia, the test is not whether there is identity of proceedings
but whether as announced in HSBC vs Aldecoa the decision in one

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forum will be res judicata as to the other decision in another forum
whichever party is successful. The principle of litis pendentia avoids
the situation of conflicting decisions rendered by two fora
determining identical issues and involving the same parties. There is
indeed a possibility that the applicant or petitioner will gamble on
the results of the proceeding in Rule 108 and RA 9048 and in the
process abuse the remedies provided by law. The applicant may
decide for example to dismiss his petition under Rule 108 when it
becomes apparent that his application under Rule 9048 will succeed
or succeeds. This abuse of remedies should not be allowed, being
against public policy and the principle on litis pendentia. Note that
in case there is litis pendentia, the civil registrar or any person
having or claiming any interest under the entry may move to
dismiss one of the proceedings. Only one proceeding should remain
and continue to determine the issue.
THIRD, in case remedies are availed of at the same time by the
petitioner or applicant forum shopping could also arise.
We have learned in Civil Procedure that whenever there is litis
pendentia, there is also forum shopping. And pursuant to Rule 72
Sec 2 that the Rules on ordinary civil actions are suppletory to
special proceedings, we can thus apply the principle of forum
shopping. This is a better ground for a motion to dismiss since both
actions or proceedings will be dismissed and the dismissal may be
with prejudice if the forum shopping is willful.
Certification against forum shopping is required at least in the
verified petition under Rule 108 and even may be perhaps in the
verified petition under RA 9048. If we will look at Rule 7 Sec 5 we
find the word quasi-judicial agency, it can thus be reasonably
inferred that the requirement of certification against forum shopping
contemplates a situation that there is a pending judicial proceeding
and at the same time a similar quasi-judicial proceeding is pending.)
II. Requirements Under AO 1 Series of 2001
* If you read the Implementing Rules issued by the Civil Registrar
General, there is still a need for publication and there are several
clearances that are required to be submitted. (SEE Administrative
Order No. 1 Series of 2001, The Rules and Regulations Governing
the Implementation of RA 9048 Rules 8 and 9 thereof)
III. Exhaustion of Administrative Remedies
* If the local civil registrar approves the petition, the matter could
automatically reach the Office of the Civil Registrar General he may
affirm the approval. If however, the Civil Registrar General does not
act within a period of 10 days then it is deemed to have been
affirmed. He can also reverse the approval. (SEE AO 1 Series of 2001
Rules 12, 13, 14, 15 and 16)

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* QUERY: What is the remedy of the person after the receipt of the
decision of the Civil Registrar General?
The law states only that appropriate action may be taken, but
the law does not tell us what this specific action or remedy is.
However, if we are going to follow established principles of
governance, since this is an administrative proceeding, we have to
exhaust administrative remedies before going to court. Otherwise
the recourse to court will be dismissed for failure to state a cause of
action.
From the Office of the Civil Registrar General, the decision will be
taken to the higher administrative office which is the Office of
President. The decision of the Office of the President on the matter
may now be taken to the courts under the provisions of Rule 43
through petition for review. Note that this remedy is not mentioned
at all in the law. (SEE Secs 6 and 7)
* In case of Rule 108 the remedy is appeal from the decision of the
court where the petition for change of name was filed. There is no
requirement of exhaustion of administrative remedies since the
proceeding is judicial at the outset.
RULE 98: TRUSTEES
* A trustee also occupies the same office as a guardian or as an
executor or administrator. A trustee occupies a POSITION OF
CONFIDENCE.
* Civil Code contains the substantive provisions on trust. (TITLE V:
Articles 1440-1446 NCC)
* Trustee is one of the officers of the court who hold a fiduciary
position.
* The Rules of Court govern the express trust which is referred to in
the Civil Code. However, there are no Rules for the enforcement of
an implied trust.
* The Rules of Court are the procedural principles governing the
enforcement of a trust.
* Kinds of trusts in substantive law:
1. living trust;
2. testamentary trust; (envisioned in the Rules of Court, Sec 1)
3. contractual trust; (mentioned in the Rules of Court Sec 3: trustee
under a written instrument)
* In the Rules, the trustee is one appointed by the court (MAST: This

95
statement somehow clarifies on what really is the kind of trust
contemplated by the Rules. Both testamentary and contractual
trusts are mentioned in the Rules. However what is really provided
in the Rules is a trustee appointed by the court whether he be by
virtue of a will or when a trustee in a contract dies, resigns etc.)
* Substantive Laws:
1. Civil Code and
2. the General Banking Act (power of banking institutions to
engage in the business of trust);
* General Banking Act:
- There is no classification of whether the trust is an express or
an implied trust;
- The trust referred to in the law is of course an express trust;
- Dean Jara suggested to read Central Bank Circulars 521 and
553 governing a living trust;
I. Title of Trustee
* The difference between an execad and a guardian from the trustee
of a trust is that a trust ACQUIRES TITLE to the property held in
trust.
* A trustee of an EXPRESS TRUST, either testamentary or a living
trust will acquire title to the property under his care.
* Insofar as 3rd persons are concerned, the trustee is the legal owner
of the property held in trust. Thus the trustee holds legal title to the
property held in trust while the beneficiary holds beneficial title over
the property.
II. Testamentary Trust
* In Testamentary Trust, a trust is created in a will. After the
settlement proceedings are finished and the property that is given in
trust is not delivered to a creditor for the payment of the
indebtedness of the decedent, then it is the duty of the executor or
administrator to follow the provisions of the will creating the trust.
So it is the duty of the executor and administrator to ask the
settlement court to go ahead with the appointment of a trustee for
this testamentary trust. In that sense, a testamentary trust could be
considered as a CONTINUATION OF THE SETTLEMENT PROCEEDING.
But the property will now be transferred to the name of the trustee
unlike in the case of an executor or administrator. (SEE Secs 1 and
2)
* PROCEDURE IN CASE OF TESTAMENTARY TRUST:

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CASE: A wealthy man dies, and there is a provision in his will saying
that he is setting aside 10 M in trust for Philippine National Red
Cross (PNRC) as beneficiary.
- QUERY: If a trust is created in the last will and testament, can the
court appoint a trustee right away?
The court cannot right away appoint a trustee. Article 838 of the
Civil Code requires that the will must be submitted to the court for
probate. This is because no property can be acquired through a will
unless the will is admitted to court for probate. The executor named
in the will or the one who has custody of the will must submit the
will to probate, follow the procedure that is outlined for settlement
of estate and the court will appoint execad.
- QUERY: If there is already execad, can he already this time set
aside 10M in trust for PNRC?
NO. Execad must still follow the provisions of the will, the law or
the rules concerning liquidation of the estate. He must see to it that
the estate is managed well and the obligations are paid first, before
distributing to legatees, devisees and heirs.
While the settlement proceeding is going on, it is impossible to
set aside the 10M in trust for PNRC. Unless the court is convinced
(not necessarily an absolute certainty) that the assets are more than
the liabilities and that the trust will not prejudice the legitime of the
forced heirs.
We have to wait until the estate is finally settled. If the estate is
eventually liquidated and there is enough money to comply with the
instructions in the testamentary trust. Then, it is only the time that
the execad can set aside the 10M in trust for the PNRC. The
executor should not be the trustee at the same time, because that
could produce a situation of conflict of interest between trustee and
administrator. If there is a testamentary trust, the appointment of
the trustee is not necessarily a part of the settlement proceeding. It
could be by way of an independent proceeding for the appointment
of a trustee.
* The duty of the trustee is almost the same as the execad in
settlement proceeding.
* QUERY: Is there a difference between the execad and the trustee
(in contractual trust) with respect to the property held in
administration or trust, as the case may be?
The answer is found in the Civil Code. The execad just
manages. In express trust (particularly a contractual trust) the
trustee is effectively the owner. So that in express trust, if the
trustee sells the property, he does not need the approval of the
court (the only limitation is the document or instrument creating the
trust). Thus, the defense of innocent purchaser for value in good
faith is proper when there is a sale to a third person buyer. This is

97
because the buyer deals with someone holding title and is the
registered owner of the property as trustee.
(MASTER: A different rule applies in case of a testamentary trust or
when a trustee is appointed by the court. Unlike in contractual trust
where the authority comes from the written instrument, a trustee
appointed by the court has authority coming from the court that is
why there is a need for approval. The trustee appointed by the court
is the case contemplated by Sec 9.)
III. Contractual Trust
* It does not mean however, that only the court can appoint a
trustee. If the trust is a living trust or a contractual trust the trustee
is appointed by the parties to the agreement. The powers and duties
of the trustee in a contractual trust are contained in the agreement.
If the trustee is appointed by court, the powers and duties are
provided by the rules and the substantive laws.
*A trust also under the Rules could be CONTRACTUAL in character
and the appointment of the trustee does not need the intervention
of the court. The appointment of the trustee could be had in the
deed of trust. Thus the trust could be had purely by reason of an
agreement between the trustor and the trustee and in some
instances by the beneficiary. Ex: Trust that exists in the cemeteries.
(SEE Sec 3)
* QUERY: The Civil Code provides a trust which is created by the
parties, since it is contractual what is the business of the court?
If the trust is purely contractual, then the parties are free to
choose the trustee. There is no need to go to court for the
appointment of a trustee
* In case of banks as a trust company, a person gives money to a
bank which acts as trustee. This money is not given as savings
account deposit or a time deposit or a current savings account,
which is insured by PDIC. The money is given in trust and this is not
covered by compulsory insurance of the PDIC.
* QUERY: In contractual trust, when can the RTC approve a petition
for the appointment of a trustee?
As a general rule, there is no need to go to court to appoint a
trustee in a contractual trust. However, if a trustee dies, resigns or
becomes incapacitated (the trust continues, there is only a need to
appoint a substitute trustee) and the parties are not in a position to
name a substitute trustee, this is a proper occasion to go to court.
(SEE Sec 3)
IV. Perpetual Trust

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Unlike settlement proceedings, which are expected to
terminate at some time, we do not follow the same principle in case
of trust. There may be instances where the living or contractual
trust falls within the concept of a perpetual trust. The trust can
lapse for an indefinite period of time. In settlement proceeding
however, the policy is to terminate the proceeding as soon as
possible so that the creditors and the heirs will not be prejudiced in
so far as their interests are concerned.

RULE 107 - ABSENTEES

* There are effectively three proceedings contemplated in the Rule
on Absentees:
1. Proceeding for the appointment of a representative:
- If the person disappears and his whereabouts are unknown, during
the 1st two years, what the court can do is to appoint a
representative;
NOTE:
General Rule:
An agent is appointed by the principal pursuant to a contract
of agency.
Exception:
QUERY: Can a court appoint an agent (instead of the principal)
while the person is still alive?
Yes. The instance is found in Rule 107 on Absentees. The court does
not declare a person as absent right away. The court will still appoint
an administrator (of a person to represent him is actually the
phrase used in the Rule 107 Sec 1) (agent) of the property of a
person (principal) whose whereabouts are unknown. A principalagent relationship is thus created.
2. Proceeding for the declaration of absence:
- If the person does not turn out within this 2 year period or his
whereabouts remain to be unknown or nobody appears and shows

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that he is the duly authorized representative of this party;(SEE Sec
2)
3. Proceeding for the settlement of the estate of the absent or
presumably dead person:
- If still the person does not appear, then this is the recourse of the
heirs or the spouse or any person interested in his estate;
- This proceeding will make use of the presumptions contained in
the Civil Code that a person is dead; (SEE Articles 390, 391 NCC)
- Once the facts from which this presumption will arise are proven,
the court can apply this presumption of death and settle the estate
accordingly;
- But if later on he appears, then the court will simply order a
reversion of the properties of this person or party; (Art. 392 NCC;
Rule 73 Sec 4)
- In this matter of absence, there is no need for a prior declaration of
presumptive death for the purpose solely of settling the estate of
the absentee;
* Under our Family Code Art. 41, there is now a petition for the
declaration of presumptive death. But this is ONLY for the purpose of
allowing the spouse to remarry.
* After the appointment of the administrator, if the whereabouts of a
person is still unknown, the remedy is to file a petition for
declaration of absence. The declaration of absence cannot be the
permanent status of the absent person. If he still does not appear,
the next step is to apply the principle of presumption of death in the
Civil Code, and the proper procedure is petition for settlement of
estate making use of the presumption of death in the Civil Code.
There is no such thing as petition for the declaration of presumptive
death for the purpose of settlement of the estate.
The foregoing should be distinguished from the declaration of
presumptive death for the purpose of allowing the spouse to
remarry. The remedy in this case is a summary special proceeding
by itself in relation to remarriage.
CONSTITUTION OF THE FAMILY HOME
There is no such proceeding anymore because it has been
repealed by the Family Code particularly Articles 152 and 153:
Art. 152. The family home constituted jointly by the husband
and the wife or by an unmarried head of the family, is the
dwelling house where they and their family reside and the
land on which it is situated.
Art. 153. The family home is deemed constituted on a house
and lot from the time it is occupied as a family residence.

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From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to the
extent of the value allowed by law.
VOLUNTARY DISSOLUTION OF THE CORPORATION
We do not have to go to court. To voluntarily dissolve the
corporation, we make use of the provisions of the Corporation Code
on shortening the corporate life. We know in Corporation Law that
when the term ends, the life of the corporation also ends or is
dissolved. (SEE Sec. 120 BP 68)
In case of involuntary dissolution of a corporation, such is
governed by the special civil action of Quo Warranto under Rule 66
Sec 1. (MAST: SEE Regalado: However, voluntary and involuntary
dissolution of corporations are now governed by BP 68. SEE Secs
118, 119 and 120: voluntary dissolution; Sec 121: Involuntary
Dissolution)
(MASTER: I am of the opinion that Rule 66 is considered only for the
grounds of involuntary dissolution since no specific grounds are
expressly mentioned in Sec 121. But the SEC will take cognizance of
the verified complaint.)
HOSPITALIZATION OF INSANE PERSON
RULE 109 - APPEALS
* The Rules on appeal in special proceedings (SP) are different from
the Rules on appeal in civil cases (CC) EXCEPT in cases which admit
of multiple appeals.
1. As to period of appeal:
- SP: 30 days (generally)
- CC: 15 days;
2. As to record of appeal:
- SP: docket fee plus record on appeal needs to be approved by the
court
- CC: docket fee plus notice of appeal does not need to be approved
by the court;
Cursed are you who have eyes but cannot SEE, hands but cannot TOUCH, has a heart but
cannot LOVE! BE A BLESSING - DOMINUS

BENEDICAMUS DOMINO! LAUDEM DOMINE MISERERE

101

NOBIS!
DEO GRATIAS!!!
PAX ET VALOR
Ab Magistre, III-C; 2007-2008

CONSUMMATUM EST!

TEMPUS FUGIT