enforcement of an administrator's bond, it was not held therein that the same matter may

Rule 81: Bonds of Executors not be litigated in an ordinary civil action brought before the court of first instance.

Though nominally payable to the Republic of the Philippines, the bond is expressly for the
Conditions of the Bond
benefit of the heirs, legatees and creditors of the Estate of the deceased Aguedo Gonzaga.
Cosme de Mendoza v. Pacheco (1937)
There is no valid reason why a creditor may not directly in his name enforce said bond in so
Before an administrator, or an executor, enters upon the execution of his trust, and letters
far as he is concerned.
testamentary or of administration are issued, the person to whom they are issued is required
to give a bond in such reasonable sum as the court directs, with one or more sufficient sureties,
Luzon Surety Co, Inc., v. Quebrar (1984)
conditioned upon the faithful performance of his trust. The administrator is accountable on
The proper determination of the liability of the surety and of the principal on the bond must
his bond along with the sureties for the performance of certain legal obligations.
depend primarily upon the language of the bond itself. While a bond is nonetheless a contract
because it is required by statute (Midland Co. vs. Broat 52 NW 972), said statutory bonds are
It is clear that a Court of First Instance, exercising probate jurisdiction, is empowered to
construed in the light of the statute creating the obligation secured and the purposes for
require the filing of the administrator's bond, to fix the amount thereof, and to hold it
which the bond is required, as expressed in the statute. The statute which requires the giving
accountable for any breach of the administrator's duty. Possessed, as it is, with an all-
of a bond becomes a part of the bond and imparts into the bond any conditions prescribed by
embracing power over the administrator's bond and over administration proceedings, a Court
the statute.
of First Instance in a probate proceeding cannot be devoid of legal authority to execute and
make that bond answerable for the very purpose for which it was filed. xxx When the
Section 1 of Rule 81 of the Rules of Court requires the administrator/executor to put up a bond
accountability of an administrator's bond is spoken of in the very provisions dealing with and
for the purpose of indemnifying the creditors, heirs, legatees and the estate. It is conditioned
bearing directly on administration proceedings, it would involve a strained construction to
upon the faithful performance of the administrator's trust. Having in mind the purpose and
hold, as appellants would have us do, that where an administrator is held liable for a
intent of the law, the surety is then liable under the administrator's bond, for as long as the
devastravit for having squandered and misapplied property which he was in duty bound to
administrator has duties to do as such administrator/executor. Since the liability of the
marshal and conserve, the estate is without a remedy to go against the administrator's bond
sureties is co-extensive with that of the administrator and embraces the performance of every
in the same probate proceedings, but in an action outside of and separate from it. xxx There
duty he is called upon to perform in the course of administration, it follows that the
is here afforded to a person who may be held liable as surety in respect to an administrator's
administrator is still duty bound to respect the indemnity agreements entered into by him in
account the right, upon application, to be admitted as a party to their accounting, from which
consideration of the suretyship.
we may not unreasonably infer that a surety, like the appellants in the case before us, may be
charged with liability upon the bond during the process of accounting, that is, within the
Administration is for the purpose of liquidation of the estate and distribution of the residue
recognized confines of probate proceedings, and not in an action apart and distinct from such
among the heirs and legatees. And liquidation means the determination of all the assets of
proceedings.
the estate and payment of all the debts and expenses.
The execution of an administrator's bond, unlike the questions involved in the cited cases,
The sureties of an administration bond are liable only as a rule, for matters occurring during
clearly stands upon a different footing, and is as necessary a part and incident of the
the term covered by the bond. And the term of a bond does not usually expire until the
administration proceeding as the filing of such bond or the fixing of its amount.
administration has been c.osed and terminated in the manner directed by law. Thus, as long
as the probate court retains jurisdiction of the estate, the bond contemplates a continuing
Probate and like courts have a special jurisdiction only, and their powers as to ancillary or
liability notwithstanding the non-renewal of the bond by the defendants-appellants.
incidental questions must of necessity to exercise within certain limitations; but such powers
include the right to try questions which arise incidentally in a cause over which such courts
It must be remembered that the probate court possesses an all-embracing power over the
have jurisdiction and the determination of which are necessary to a lawful exercise of the
administrator's bond and over the administration proceedings and it cannot be devoid of legal
powers expressly conferred in arriving at a decision.
authority to execute and make that bond answerable for the every purpose for which it was filed.
It is the duty of the courts of probate jurisdiction to guard jealously the estate of the deceased
Warner, Barnes and Co., Ltd., v. Luzon Surety Co. Inc. (1954)
persons by intervening in the administration thereof in order to remedy or repair any injury
Under the first assignment of error, the appellant contends that the lower court had no
that may be done thereto.
jurisdiction to pass upon its liability under the bond in question, because it is only the probate
court that can hold a surety accountable for any breach by the administratrix of her duty,
There is no provision or condition in the bond to the effect that it will terminate at the end of
citing the case of Mendoza vs. Pacheco, 64 Phil., 134. It is, however, noteworthy that while the
the first year if the premium for continuation thereafter is not paid. And there is no clause by
citation is to the effect that the probate court has jurisdiction over the forefeiture or
which its obligation is avoided or even suspended by the failure of the obligee to pay an annual
premium.
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 1

At the end of the first year, the bond went on, whether or not the premium was paid or not ...
Even on a failure to pay an annual premium, the contract ran on until affirmative action was
taken to avoid it. The obligation of the bond was therefore continuous. Under a surety bond
securing faithful performance of duties by postal employee, liability for default of employee
occurring in any one year would continue, whether or not a renewal premium was paid for a
later year. The payment of the annual premium is to be enforced as part of the consideration,
and not as a condition; for the payment was not made a condition to the attaching or
continuing of the contract. The premium is the consideration for furnishing the bonds and the
obligation to pay the same subsists for as long as the liability of the surety shall exist. The
"premium is the consideration for furnishing the bond or the guaranty. While the liability of
the surety subsists the premium is collectible from the principal.
The one-year period mentioned therein refers not to the duration or lifetime of the bond, but
merely to the payment of premiums, and, consequently, does not affect at all the effectivity
or efficacy of such bond. But such non- payment alone of the premiums for the succeeding
years ... does not necessarily extinguish or terminate the effectivity of the counter-bond in the
absence of an express stipulation in the contract making such non-payment of premiums a
cause for the extinguishment or termination of the undertaking. ...There is no necessity for an
extension or renewal of the agreement because by specific provision thereof, the duration of
the counter-bond was made dependent upon the existence of the original bond.
Rule 82: Revocation of Administration, Death, Resignation and Removal
of Executors and Administrators
Borromeo v. Borromeo (1955)
Conflict between the interest of the executor and the interest of the deceased is ground for
removal or resignation of the former, who was thereby become unsuitable to discharge the
trust.
An executor or administrator should be removed where his personal interests conflict with his
official duties, but a mere hostile feeling towards persons interested in the estate is not
ground for removal unless it prevents the management of the estate according to the dictates
of prudence.
Reasons for rule.—"An executor is a quasi trustee, who should be indifferent between the
estate and claimant of the property, except to preserve it for due administration, and when
his interest conflicts with such right and duty the country court, in the exercise of a sound
discretion, may remove him."
An executor will be removed where it appears that he asserts claims against the estate of the
testator to the extent of two-thirds of the value of the estate, and such claims are disputed by
the beneficiary under the will.
Claim of gifts from decedents.—Where an executor, in answer to a petition for his removal on
the ground of maladministration in claiming property of the estate, alleged a gift by decedent
to him of the property, he manifested an interest adverse to the beneficiaries, authorizing his
removal; but the country court had no jurisdiction to determine the question of gift.
Ocampo v. Ocampo (2010)
While the RTC considered that respondents were the nearest of kin to their deceased parents
in their appointment as joint special administrators, this is not a mandatory requirement for
the appointment. It has long been settled that the selection or removal of special
administrators is not governed by the rules regarding the selection or removal of regular
administrators. The probate court may appoint or remove special administrators based on
grounds other than those enumerated in the Rules at its discretion, such that the need to first
pass upon and resolve the issues of fitness or unfitness and the application of the order of
preference under Section 6 of Rule 78, as would be proper in the case of a regular
administrator, do not obtain. As long as the discretion is exercised without grave abuse, and
is based on reason, equity, justice, and legal principles, interference by higher courts is
unwarranted. The appointment or removal of special administrators, being discretionary, is
thus interlocutory and may be assailed through a petition for certiorari under Rule 65 of the
Rules of Court.
Pursuant to Section 1 of Rule 81, the bond secures the performance of the duties and
obligations of an administrator namely: (1) to administer the estate and pay the debts; (2) to
perform all judicial orders; (3) to account within one (1) year and at any other time when
required by the probate court; and (4) to make an inventory within three (3) months. More
specifically, per Section 4 of the same Rule, the bond is conditioned on the faithful execution
of the administration of the decedents estate requiring the special administrator to (1) make
and return a true inventory of the goods, chattels, rights, credits, and estate of the deceased
which come to his possession or knowledge; (2) truly account for such as received by him
when required by the court; and (3) deliver the same to the person appointed as executor or
regular administrator, or to such other person as may be authorized to receive them.
Verily, the administration bond is for the benefit of the creditors and the heirs, as it compels
the administrator, whether regular or special, to perform the trust reposed in, and discharge
the obligations incumbent upon, him. Its object and purpose is to safeguard the properties of
the decedent, and, therefore, the bond should not be considered as part of the necessary
expenses chargeable against the estate, not being included among the acts constituting the
care, management, and settlement of the estate. Moreover, the ability to post the bond is in
the nature of a qualification for the office of administration.
Rule 83: Inventory and Appraisal, Provision for Support of Family
Period
Sebial v. Sebial (1975)
The three-month period prescribed in section 1, Rule 83 (formerly Rule 84) of the Rules of
Court is not mandatory. After the filing of a petition for the issuance of letters of
administration and the publication of the notice of hearing, the proper Court of First Instance
acquires jurisdiction over a decedent's estate and retains that jurisdiction until the proceeding
is closed. The fact that an inventory was filed after the three-month period would not deprive
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 2
the probate court of jurisdiction to approve it. However, an administrator's unexplained delay
in filing the inventory may be a ground for his removal (Sec. 2, Rule 82, Rules of Court).
Inasmuch as a regular administrator had been appointed and a notice to creditors had been
issued and no claims were filed, the probate court could still proceed summarily and
expeditiously to terminate the proceeding. With the cooperation of the lawyers of the parties,
it should strive to effect an amicable settlement of the case (See arts. 222 and 2029, Civil
Code).
Provisional Inclusion in Inventory
Garcia v. Garcia (1939)
It is the duty of every administrator, whether special or regular, imposed by section 668 of the
Code of Civil Procedure, to return to the court within three months after his appointment a
true inventory of the real estate and all the goods, chattels, rights, and credits of the deceased
which come into his possession or knowledge, unless he is residuary legatee and has given the
prescribed bond. The court which acquires jurisdiction over the properties of a deceased
person through the filing of the corresponding proceedings, has supervision and control over
the said properties, and under the said power, it is its inherent duty to see that the inventory
submitted by the administrator appointed by it contains all the properties, rights and credits
which the law requires the administrator to set out in his inventory. In compliance with this
duty the court has also inherent power to determine what properties, rights and credits of the
deceased should be included in or excluded from the inventory. Should an heir or person
interested in the properties of a deceased person duly call the court’s attention to the fact that
certain properties, rights or credits have been left out in the inventory, it is likewise the court’s
duty to hear the observations. with power to determine if such observations should be
attended to or not and if the properties referred to therein belong prima facie to the intestate,
but no such determination is final and ultimate in nature as to the ownership of the said
properties.
A court which takes cognizance of testate or intestate proceedings has power and jurisdiction
to determine whether or not the properties included therein or excluded therefrom belong
prima facie to the deceased, although such a determination is not final or ultimate in nature,
and without prejudice to the right of the interested parties, in a proper action, to raise the
question bearing on the ownership or existence of the right or credit.
Cuizon v. Ramolete (1984)
A probate court or one in charge of proceedings whether testate or intestate cannot
adjudicate or determine title to properties claimed to be a part of the estate and which are
equally (claimed to belong to outside parties. All that the said court could do as regards said
properties is to determine whether they should or should not be included in the inventory or
list of properties to be administered by the administrator. If there is no dispute, well and good;
but if there is, then the parties, the administrator, and the opposing parties have to resort to
an ordinary action for a final determination of the conflicting claims of title because the
probate court cannot do so.
For the purpose of determining whether a certain property should or should not be included
in the inventory the probate court may pass upon the title thereto but such determination is
not conclusive and is subject to the final decision in a separate a petition regarding ownership
which may be instituted by the parties.
The petitioners therein sought to annul the order of the respondent court in a special
proceeding which in effect ruled that notwithstanding that the subject property was duly
titled in the name of petitioners, the administratrix of the intestate estate involved in said
proceeding had the right to collect the rentals of said property over the objection of the titled
owners just because it was included in the inventory of said estate and there was an ordinary
action in the regular court over the ownership thereof and the estate was one of the parties
therein. This Court viewed the petition as one seeking for a prima facie determination and not
a final resolution of the claim of ownership.
The probate court should resolve the issue before it provisionally, as basis for its inclusion in
or exclusion from the inventory. It does not even matter that the issue is raised after approval
of the inventory because apparently, it is not necessary that the inventory and appraisal be
approved by the Court.
If a property covered by Torrens Title is involved, the presumptive conclusiveness of such title
should be given due weight, and in the absence of strong compelling evidence to the contrary,
the holder thereof should be considered as the owner of the property in controversy until his
title is nullified or modified in an appropriate ordinary action, particularly, when as in the case
at bar, possession of the property itself is in the persons named in the title.
Guinguing v. Abuton (1925)
It was not error, in our opinion, for the trial court to look to the recitals of the legalized will for
the purpose of determining prima facie whether a certain piece of property should or should
not be included in the inventory, without prejudice of course to any person who may have an
adverse title to dispute the point of ownership. The use made of the superseded will (Exhibit
1) in the appealed order is of more questionable propriety, but we are of the opinion that the
facts stated by the court can be sufficiently made out from the other evidence submitted at
the hearing.
There is nothing to show that the land covered by title No. 11658 was not acquired by the
spouses during their marriage, and the circumstance that the title was taken in the name of
the wife does not defeat its presumed character as ganacial property. Therefore, in liquidating
the ganacial property of the first marriage it was within the power of the surviving husband to
assign other property to the first set of children as their participation in the estate of their
mother and to retain in his own hands the property for which a composition title had been
issued in the name of the wife.
Rule 84: General Powers and Duties of Executors and Administrators
Powers
Wilson v. Rear (1930)
The law does not impose upon an administrator a high degree of care in the administration of
an estate, but it does impose upon him ordinary and usual care, for want of which he is
personally liable. In the instant case there were no complications of any kind and in the usual
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 3
and ordinary course of business, the administrator should have wound up and settled the
estate within eight months from the date of his appointment.
Winding up Business. — An executors or administrator ordinarily has no power to continue
the business in which the decedent was engaged at the time of his death; and this is true
although he acts in the utmost good faith and believes that he is proceeding for the best
interests of the estate. The penalty for continuing a business of the decedent without
authority is the imposition of a personal liability on the executor or administrator so doing for
all debts of the business. The normal duty of the personal representative in reference to such
business is limited to winding it up, and even where the beneficiaries are infants the court
cannot authorize the administrator to carry on the trade of the decedent. However, an
exception to the general rule is sometimes recognized; and so it has been held that in order
to settle an estate the personal representative may, in some cases, be permitted to continue
a business for a reasonable time. For example, such personal representative when authorized
to postpone the sale of the testator’s effects may generally carry on the business for a
reasonable time with a view to its sale as a going concern. Even in such cases the personal
representatives are not, however, entitled to embark in the business more of the testator’s
property than was employed in it at his death.
C. Engaging in Business — 1. GENERAL RULE. The general rule is that neither an executor nor
an administrator is justified in placing or leaving assets in trade, for this is a hazardous use to
permit of trust moneys; and trading lies outside the scope of administrative functions. So
great a breach of trust is it for the representative to engage in business with the funds of the
estate that the law charges him with all the losses thereby incurred without on the other hand
allowing him too receive the benefit of any profits that he may make, the rule being that the
persons beneficially interested in the estate may either hold the representative liable for the
amount so used with interest, or at their election take all the profits which the representative
has made by such unauthorized use of the funds of the estate.
It is the duty of the administrator of an estate to represent and protect in interests of all
interested persons, including the heirs of the deceased. To entitle the administrator to credit
for money paid out in the course of administration, he should submit and file with the court a
corresponding receipt or voucher.
San Diego v. Nombre (1964)
While it may be admitted that the duties of a judicial administrator and an agent (petitioner
alleges that both act in representative capacity), are in some respects, identical, the provisions
on agency (Art. 1878, C.C.), should not apply to a judicial administrator. A judicial
administrator is appointed by the Court. He is not only the representative of said Court, but
also the heirs and creditors of the estate. A judicial administrator before entering into his
duties, is required to file a bond. These circumstances are not true in case of agency. The agent
is only answerable to his principal. The protection which the law gives the principal, in limiting
the powers and rights of an agent, stems from the fact that control by the principal can only
be thru agreements, whereas the acts of a judicial administrator are subject to specific
provisions of law and orders of the appointing court.
Conflict of Interest
Jaroda v. Cusi (1969)
An administrator is not permitted to deal with himself as an individual in any transaction
concerning trust property.
It is well settled that an executrix holds the property of her testator's estate as a trustee. It is
equally well settled that an executrix will not be permitted to deal with herself as an individual
in any transaction concerning the trust property. In respect to a transaction wherein a trustee
sought to deal with trust property: 'Courts will not permit any investigation into the fairness
of the transaction, or allow the trustee to show that the dealing was for the best interest of
the beneficiary.
As a general rule, auto-contracts are permissible if not expressly prohibited and that there is
no express provision of law prohibiting an administrator from appointing himself as his own
agent, even if correct, cannot and should not apply to administrator of decedent's estates, in
view of the fiduciary relationship that they occupy with respect to the heirs of the deceased
and their responsibilities toward the probate court. A contrary ruling would open the door to
fraud and maladministration, and once the harm is done, it might be too late to correct it.
Mananquil v. Villegas (1990)
Pursuant to Section 3 of Rule 84 of the Revised Rules of Court, a judicial executor or
administrator has the right to the possession and management of the real as well as the
personal estate of the deceased so long as it is necessary for the payment of the debts and
the expenses of administration. He may, therefore, exercise acts of administration without
special authority from the court having jurisdiction of the estate. For instance, it has long been
settled that an administrator has the power to enter into lease contracts involving the
properties of the estate even without prior judicial authority and approval.
The above disqualification imposed on public and judicial officers and lawyers is grounded on
public policy considerations which disallow the transactions entered into by them, whether
directly or indirectly, in view of the fiduciary relationship involved, or the peculiar control
exercised by these individuals over the properties or rights covered.
By virtue of Article 1646 of the new Civil Code, the persons referred to in Article 1491 are
prohibited from leasing, either in person or through the mediation of another, the properties
or things mentioned in that article, to wit:
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other
officers and employees connected with the administration of justice, the property or rights in
litigation or levied upon on execution before the court within whose jurisdiction or territory
they exercise their respective functions; this prohibition includes the act of acquiring by
assignment and shall apply to lawyers, with respect to the property and rights which may be the
object of any litigation in which they may take part by virtue of their profession.
xxx
Accordingly, the Court must reiterate the rule that the claim of good faith is no defense to a
lawyer who has failed to adhere faithfully to the legal disqualifications imposed upon him,
designed to protect the interests of his client.
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 4
Rule 85: Accountability and Compensation of Executors and
Administrators
Duty to Account
Joson v. Joson (1961)
Section 1 of Rule 86 categorically charges an administrator "with the whole of the estate of
the deceased which has come into his possession at the value of appraisement contained in
the inventory; with all the interest, profit, and income of such a estate; and with the proceeds
of so much of the estate as is sold by him, at the price at which sold." Section 8 of the same
rule imposes upon him the duty to render an account of his administration within one year
from his appointment, unless the court otherwise directs, as well as to render such further
accounts as the courts may require until the estate is fully settled. Section 10 likewise provides
that before an account of the administrator is allowed notice shall be given to all persons
interested of the time and place of examining and allowing the same. And finally Section 9
expressly directs that the court shall examine the administrator upon oath with respect to
every matter relating to his account except when no objection is made to the allowance of the
account and its correctness is satisfactorily established by competent testimony.
It thus appears that the duty of an administrator to render an account is not a mere incident
of an administration proceeding which can be waived or disregarded when the same is
terminated, but that it is a duty that has to be performed and duly acted upon by the court
before the administration is finally ordered closed and terminated. Here the administrator has
submitted his accounts for several years not only motu proprio but upon requirement of the
court, to which accounts the heirs have seasonably submitted their opposition. And when the
administrator moved the court to close the proceedings and relieve him of his administration
and of his accounts, the heirs who objected thereto objected likewise to the closing of the
proceedings invoking their right to be heard but the court ignored their opposition and
granted the motion setting forth as reasons therefore what we quoted in the early part of this
decision. Verily, the trial court erred in acceding to the motion for in doing so it disregarded
the express provisions of our rules relative to the settlement of accounts of a judicial
administrator.
The fact that all the heirs of the estate have entered into an extrajudicial settlement and
partition in order to put an end to their differences cannot in any way be interpreted as a
waiver of the objections of the heirs to the accounts submitted by the administrator not only
because to so hold would be a derogation of the pertinent provisions of our rules but also
because there is nothing provided in said partition that the aforesaid accounts shall be
deemed waived or condoned. While the attitude of the heirs in concluding said extrajudicial
settlement is plausible and has contributed to the early settlement of the estate, the same
cannot however be considered as a release of the obligation of the administrator to prove his
accounts.
Tumang v. Laguio (1980)
Section 8 of Rule 85 provides that the "executor or administrator shall render an account of
his administration within one (1) year from the time of receiving letters testamentary or of
administration ..., and he shall render such further accounts as the court may requite until the
estate is wholly settled."
In the instant case, further accounts by the executrix appear to be in order, in view of the fact
that the dividends sought to be accounted for are not included in the final accounts rendered
by the executrix. It appears that the interests of all the parties will be better served and the
conflict between petitioners and respondent will be resolved if such additional accounting is
made. Further, "it has been held that an executor or administrator who receives assets of the
estate after he has filed an account should file a supplementary account thereof, and may be
compelled to do so, but that it is only with respect to matters occuring after the settlement of
final account that representatives will be compelled to file supplementary account." It is only
in a case where the petition to compel an executor to account after he has accounted and has
been discharged fails to allege that any further sums came into the hands of the executor, and
the executor specifically denies the receipt of any further sums that the accounting should be
denied.
There is no question that in the instant case, the fact that the executrix received funds of the
estate after the approval of her final accounts and before the issuance of an order finally
closing the proceedings is admitted. She must, therefore, account for the same, in
consonance with her duty to account for all the assets of the decedent's estate which have
come into her possession by virtue of her office. An executor should account for all his receipts
and disbursements since his last accounting.
The duty of an executor or administrator to render an account is not a mere incident of an
administration proceeding which can be waived or disregarded. It is a duty that has to be
performed and duly acted upon by the court before the administration is finally ordered
closed and terminated, to the end that no part of the decedent's estate be left unaccounted
for. The fact that the final accounts had been approved does not divest the court of jurisdiction
to require supplemental accounting for, aside from the initial accounting, the Rules provide
that "he shall render such further accounts as the court may require until the estate is wholly
settled."
Charges and Expenses of the Administrator
Rodriguez v. Silva (1952)
It will be seen from this provision that a greater sum may be allowed "in any special case,
where the estate is large, and the settlement has been attended with great difficulty, and has
required a high degree of capacity on the part of the executor or administrator." And so it has
been held that "the amount of an executor's fee allowed by the Court of first Instance in any
special case under the provisions of Section 680 of the Code of Civil Procedure is a matter
largely in the discretion of the probate court, which will not be disturbed on appeal, except for
an abuse of discretion.
The fact that the appellee is an attorney-at-law has served the estate in good stead, has
served the estate in good stead, and this ought not be lost sight it. Although being a lawyer is
by itself not a factor in the assessment of an administrator's fee, it should be otherwise as in
this case the administrator was able to stop what appeared to be an improvident
disbursement of a substantial amount without having to employ outside legal help at an
additional expense to estate.
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 5
Phil Trust Co. v. Luzon Surety Co. (1961) giving of a bond in order to qualify for the office of executor or administrator is a necessary
Whatever may be the rule prevailing in other jurisdictions, in ours probate court is possessed expense in the care, management, and settlement of the estate within the meaning of section
with an all-embracing power not only in requiring but also in fixing the amount, and executing 680 of the Code of Civil Procedure, for these are expenses incurred after the executor of
or forfeiting an administrator's bond. The execution or forfeiture of an administrator's bond, administrator has met the requirements of the law and has entered upon the performance of
is deemed be a necessary part and incident of the administration proceedings as much as its his duties.
filing and the fixing of its amount. The rule, therefore, is that the probate court may have said
bond executed in the same probate proceeding. A person may accept the position of executor or administrator with all the incident
appertaining thereto having in mind the compensation which the law allows for the purpose,
From the nature of the obligation entered into by the surety on an administrator's bond — but he may waive this compensation in the same manner as he may refuse to serve without
which makes him privy to the proceedings against his principal — he is bound and concluded, it.
in the absence of fraud and collusion, by a judgment against his principal, even though said
surety was not a party to the proceeding. The sureties on the administrator's bond were held Uy Tiaco v. Imperial (1928)
liable thereon although they were not parties to the proceeding against the administrator, nor The attorney can therefore not hold the estate directly liable for his fees; such fees are allowed
were they notified in connection therewith prior to the issuance of the court order for the to the executor or administrator and not to the attorney. The liability for the payment rests
confiscation of the bond. Lastly, according to Section 11, Rule 86 of the Rules of Court, upon on the executor or administrator, but if the fees paid are beneficial to the estate and
the settlement of the account of an executor or administrator, his sureties "may upon reasonable, he is entitled to the reimbursement from the estate. Such payment should be
application, be admitted as a party to such accounting." The import of this provision is that included in his accounts and the reimbursement therefore settled upon the notice prescribed
the sureties are not entitled to notice but may be allowed to intervene in the settlement of in section 682 of the Code of Civil Procedure.
the accounts of the executor or administrator if they ask for leave to do so in due time.
Rule 86: Claims Against the Estate
Quasha Pena v. LCN Const. (2008)
Only an order of distribution directing the delivery of the residue of the estate to the proper
Period to File Claims
distributees brings the intestate proceedings to a close and, consequently, puts an end to the
Afan v. De Guzman (1960)
administration and relieves the administrator of his duties.
Failure to file a claim within the time provided therefor upon the sole ground that the claimant
was negotiating with one of the heirs for payment, is not sufficient to justify extension and
Although it is within the discretion of the RTC whether or not to permit the advance
that, where a claimant knew of the death of the decedent and for four (4) or five (5) months
distribution of the estate, its exercise of such discretion should be qualified by the following:
thereafter he did nothing to present his claim, this can hardly be considered as a good excuse
[1] only part of the estate that is not affected by any pending controversy or appeal may be
for such neglect.
the subject of advance distribution (Section 2, Rule 109); and [2] the distributees must post a
bond, fixed by the court, conditioned for the payment of outstanding obligations of the estate
Heirs of Pizarro v. Consolacion (1988)
(second paragraph of Section 1, Rule 90).
The range of the period specified in the rule is intended to give the probate court the
discretion to fix the period for the filing of claims. The probate court is permitted by the rule
Improper Charges
to set the period provided it is not less than six (6) months nor more than twelve (12) months
Sison v. Teodoro (1957)
from the date of the first publication of the notice thereof. Such period once fixed by the court
The "expense incurred by an executor or administrator to produce a bond is not a proper
is mandatory.
charge against the estate. Section 680 of the Code of Civil Procedure (similar to section 7, Rule
86) does not authorize the executor or administrator to charge against the estate the money
The purpose of the law, in fixing a period within which claims against an estate must be
spent for the presentation, filing, and substitution of a bond.
presented, is to insure a speedy settlement of the affairs of the deceased person and the early
delivery of the property to the person entitled to the same.
The position of an executor or administrator is one of trust. In fact, the Philippine Code of Civil
Procedure so mentions it. It is proper for the law to safeguard the estate of deceased persons
The speedy settlement of the estate of deceased persons for the benefit of creditors and those
by requiring the executor or administrator to give a suitable bond. The ability to give this bond
entitled to the residue by way of inheritance or legacy after the debts and expenses of
is in the nature of a qualification for the office. The execution and approval of the bond
administration have been paid is the ruling spirit of our probate law. However, in this case the
constitute a condition precedent to acceptance of the responsibilities of the trust. If an
trial court set the period for the filing of the claims within six (6) months from the date of the
individual does not desire to assume the position of executor of administrator, he may refuse
first publication of the notice. It was obviously short of the minimum limit of six (6) months
to do so. On the other hand, when the individual prefers an adequate bond and has it
provided for by the law. Petitioner correctly observed that the trial court thereby shortened
approved by the probate court, he thereby admits the adequacy of the compensation which
the period set by the law.
is permitted him pursuant to law. It would be a very far-fetched construction to deduce the
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Since the notice issued and the period set by the trial court was not in accordance with the
requirements of Section 2, Rule 86 of the Rules of Court, what should then apply is the period
as provided for by the rules which is not less than six months nor more than twelve (12) months
from the date of first publication of notice.
Nature of Claims
Gutierrez v. Berreto-Datu (1962)
The word "claims" as used in statutes requiring the presentation of claims against a decedent's
estate is generally construed to mean debts or demands of a pecuniary nature which could
have been enforced against the deceased in his lifetime and could have been reduced to
simple money judgments; and among these are those founded upon contract. The claim in
this case is based on contract — specifically, on a breach thereof. It falls squarely under section
5 of Rule 87 "Upon all contracts by the decedent broken during his lifetime, even though they
were personal to the decedent in liability, the personal representative is answerable for the
breach out of the assets." A claim for breach of a covenant in a deed of the decedent must be
presented under a statute requiring such presentment of all claims grounded on contract.
The only actions that may be instituted against the executor or administrator are those to
recover real or personal property from the estate, or to enforce a lien thereon, and actions to
recover damages for an injury to person or property, real or personal.
Aguas v. Llemos (1962)
Under Rule 87, section 5, the actions that are abated by death are: (1) claims for funeral
expenses and those for the last sickness of the decedent; (2) judgments for money; and (3) "all
claims for money against the decedent, arising from contract express or implied". None of
these includes that of the plaintiffs-appellants; for it is not enough that the claim against the
deceased party be for money, but it must arise from "contract express or implied", and these
words (also used by the Rules in connection with attachments and derived from the common
law) were construed in Leung Ben vs. O'Brien, 38 Phil., 182, 189-194.
to include all purely personal obligations other than those which have their source
in delict or tort.
Upon the other hand, Rule 88, section 1, enumerates actions that survive against a decedent's
executors or administrators, and they are: (1) actions to recover real and personal property
from the estate; (2) actions to enforce a lien thereon; and (3) actions to recover damages for
an injury to person or property. The present suit is one for damages under the last class, it
having been held that "injury to property" is not limited to injuries to specific property, but
extends to other wrongs by which personal estate is injured or diminished. To maliciously
cause a party to incur unnecessary expenses, as charged in this case, is certainly injurious to
that party's property.
BPI v. Concepcion & Hijos Inc. (1928)
Counsel for the appellee also argue that the bank, having failed to present its claim to the
committee on claims and appraisal, it must be regarded as having elected to rely on its
mortgage alone and therefore can have no personal judgement against the Elser estate. That
is good law.
The mortgagee has the election of one out of three courses: (1) He may abandon his security
and share in the general distribution of the assets of the estate, or (2) he may foreclose, secure
a deficiency judgment and prove his deficiency judgment before the committee, or (3) he may
rely upon his security alone, in which case he can receive no share in the distribution of the
assets of the estate.
In this case the bank did not abandon the security and took no steps of any sort before the
committee within the time limit provided by the sections 689 and 690 of the Code of Civil
Procedure. The committed ceased to function long ago, and the bank has now nothing to rely
on except the mortgage. Internationally or not, it has bought itself within the third course
provided for in section 708; it has no alternative.
If the court "from the report of the committee" or from "the proofs exhibited to it" is satisfied
that the contingent claim is valid, the executor or administrator may be required to retain in
his possession sufficient assets to pay the claim when it becomes absolute, or enough to pay
the creditor his proportionate share if the assets of the estate are insufficient to pay the debts.
When the contingent claim has become absolute, its amount may be ascertained and
established in the manner indicated by sections 748 and 749.
Imperial Ins. Co. v. David (1984)
When the obligation is a solidary one, the creditor may bring his action in toto against any of
the debtors obligated in solidum. Thus, if husband and wife bound themselves jointly and
severally, in case of his death her liability is independent of and separate from her husband s;
she may be sued for the whole debt and it would be error to hold that the claim against her as
well as the claim against her husband should be made in the decedent's estate.
The Rules of Court provide the procedure should the creditor desire to go against the.
deceased debtor, "but there is noting in the aid provision making compliance with such
procedure a condition precedent an ordinary action against the solidary debtors. should the
creditor choose to demand payment from the latter, could be entertained to the extent that
failure to observe the same would deprive the court jurisdiction to make cognizance of the
action against the surviving debtors. Upon lie other hand, the Civil Code expressly allows the
creditor to proceed against any one of the solidary debtors or some or all of them
simultaneously. Hence, there is nothing improper in the creditor's filing of an action against
the surviving solidary debtors alone, instead of instituting a proceeding for the settlement of
the estate of the deceased debtor wherein his claim could be filed.
Stronghold v. Republic (2006)
As a general rule, the death of either the creditor or the debtor does not extinguish the
obligation. Obligations are transmissible to the heirs, except when the transmission is
prevented by the law, the stipulations of the parties, or the nature of the obligation. Only
obligations that are personal or are identified with the persons themselves are extinguished
by death.
Section 5 of Rule 86 of the Rules of Court expressly allows the prosecution of money claims
arising from a contract against the estate of a deceased debtor. Evidently, those claims are
not actually extinguished. What is extinguished is only the obligee’s action or suit filed before
the court, which is not then acting as a probate court.
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In the present case, whatever monetary liabilities or obligations Santos had under his
contracts with respondent were not intransmissible by their nature, by stipulation, or by
provision of law. Hence, his death did not result in the extinguishment of those obligations or
liabilities, which merely passed on to his estate. Death is not a defense that he or his estate
can set up to wipe out the obligations under the performance bond. Consequently, petitioner
as surety cannot use his death to escape its monetary obligation under its performance bond.
Under the law and jurisprudence, respondent may sue, separately or together, the principal
debtor and the petitioner herein, in view of the solidary nature of their liability. The death of
the principal debtor will not work to convert, decrease or nullify the substantive right of the
solidary creditor. Evidently, despite the death of the principal debtor, respondent may still sue
petitioner alone, in accordance with the solidary nature of the latter’s liability under the
performance bond.
Procedure
Santos v. Manarang (1914)
Section 689 provides:
That court shall allow such time as the circumstances of the case require for the creditors to
present their claims the committee for examination and allowance; but not, in the first
instance, more than twelve months, or less than six months; and the time allowed shall be
stated in the commission. The court may extend the time as circumstances require, but not
so that the whole time shall exceed eighteen months.
It is commonly termed the statute of nonclaims, and its purpose is to settle the affairs of the
estate with dispatch, so that residue may be delivered to the persons entitled thereto without
their being afterwards called upon to respond in actions for claims, which, under the ordinary
statute of limitations, have not yet prescribed. The object of the law in fixing a definite period
within which claims must be presented is to insure the speedy settling of the affairs of a
deceased person and the early delivery of the property of the estate in the hands of the
persons entitled to receive it.
Due possibly to the comparative shortness of the period of limitation applying to such claims
as compared with the ordinary statute of limitations, the statute of nonclaims has not the
finality of the ordinary statute of limitations. It may be safely said that a saving provision,
more or less liberal, is annexed to the statute of nonclaims in every jurisdiction where is found.
In this country its saving clause is found in section 690, which reads as follows:
On application of a creditor who has failed to present his claim, if made within six months after
the time previously limited, or, if a committee fails to give the notice required by this chapter,
and such application is made before the final settlement of the estate, the court may, for
cause shown, and on such terms as are equitable, renew the commission and allow further
time, not exceeding one month, for the committee to examine such claim, in which case it
shall personally notify the parties of the time and place of hearing, and as soon as may be
make the return of their doings to the court.
If the committee fails to give the notice required, that is a sufficient cause for reconvening it
for further consideration of claims which may not have been presented before its final report
was submitted to the court. But, as stated above, this is not the case made by the plaintiff, as
the committee did give the notice required by law. Where the proper notice has been given
the right to have the committee recalled for the consideration of a belated claim appears to
rest first upon the condition that it is presented within six months after the time previously
limited for the presentation of claims.
It is evident from the brief outline of the sections referred to above that the Code of Civil
Procedure has established a system for the allowance of claims against the estates of
decedents. Those are at least two restrictions imposed by law upon the power of the testator
to dispose of his property, and which pro tanto restrict the maxim that "the will of the testator
law: (1) His estate is liable for all legal obligations incurred by him; and (2) he can not dispose
of or encumber the legal portion due his heirs by force of law. The former take precedence
over the latter. In case his estate is sufficient they must be paid. In case the estate is insolvent
they must be paid in the order named in section 735. It is hardly necessary to say that a
provision in an insolvent's will that a certain debt be paid would not entitle it to preference
over other debts. But, if the express mention of a debt in the will requires the administrator to
pay it without reference to the committee, what assurance is there, in the case of an insolvent
estate, that it will not take precedence over preferred debts?
Section 706 of the Code of Civil Procedure provides that an executor may, with the approval
of the court, compound with a debtor of deceased for a debt due the estate, But he is nowhere
permitted or directed to deal with a creditor of the estate. On the contrary, he is the advocate
of the estate before an impartial committee with quasi-judicial power to determine the
amount of the claims against the estate, and, in certain cases, to equitably adjust the amounts
due. The administrator, representing the debtor estate, and the creditor appear before this
body as parties litigant and, if either is dissatisfied with its decision, an appeal to the court is
their remedy. To allow the administrator to examine and approve a claim against the estate
would put him in the dual role of a claimant and a judge. The law in this jurisdiction has been
so framed that this may not occur. The most important restriction, in this jurisdiction, on the
disposition of property by will are those provisions of the Civil Code providing for the
preservation of the legal portions due to heirs by force of law, and expressly recognized and
continued in force by sections 614, 684, and 753 of the Code of Civil Procedure. But if a debt is
expressly recognized in the will must be paid without its being verified, there is nothing to
prevent a partial or total alienation of the legal portion by means of a bequest under a guise
of a debt, since all of the latter must be paid before the amount of the legal portion can be
determined.
We are aware that in some jurisdictions executors and administrators are, by law, obligated
to perform the duties which, in this jurisdiction, are assign to the committee on claims; that
in some other jurisdictions it is the probate court itself that performs these duties; that in
some jurisdictions the limitation upon the presentment of claims for allowance is longer and,
possibly, in some shorter; and that there is a great divergence in the classification of actions
which survive and actions which do not survive the death of the testator. It must be further
remembered that there are but few of the United States which provide for heirs by force of
law. These differences render useless as authorities in this jurisdiction many of the cases
coming from the United States. The restriction imposed upon the testator's power to dispose
of his property when they are heirs by force of law is especially important. The rights of these
heirs by force law pass immediately upon the death of the testator. The state intervenes and
guarantees their rights by many stringent provisions of law to the extent mentioned in article
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 8
818 of the Civil Code. Having undertaken the responsibility to deliver the legal portion of the
net assets of the estate to the heirs by force of law, it is idle to talk of substituting for the
procedure provided by law for determining the legal portion, some other procedure provided
in the will of the testator. The state cannot afford to allow the performance of its obligations
to be directed by the will of an individual. There is but one instance in which the settlement of
the estate according to the probate procedure provided in the Code of Civil Procedure may be
dispense with, and it applies only to intestate estates. A partial exemption from the lawful
procedure is also contained in section 644, when the executor or administrator is the sole
residuary legatee. Even in such case, and although the testator directs that no bond be given,
the executor is required to give a bond for the payment of the debts of the testator. The facts
of the present case do not bring it within either of this sections. We conclude that the claims
against the estate in the case at bar were enforceable only when the prescribed legal
procedure was followed.
Estate of Olave v. Reyes (1983)
Section 1, Rule 87 of the Rules of Court, provides that "no action upon a claim for the recovery
of money or debt or interest thereon shall be commenced against the executor or
administrator; ..." The claim of private respondent SAMCO being one arising from a contract
may be pursued only by filing the same in the administration proceedings in the Court of First
Instance of Manila (Sp. Proc. No. 25876) for the settlement of the estate of the deceased
Amadeo Matute Olave; and the claim must be filed within the period prescribed, otherwise,
the same shall be deemed "barred forever."
The purpose of presentation of claims against decedents of the estate in the probate court is
to protect the estate of deceased persons. That way, the executor or administrator will be
able to examine each claim and determine whether it is a proper one which should be allowed.
Further, the primary object of the provisions requiring presentation is to apprise the
administrator and the probate court of the existence of the claim so that a proper and timely
arrangement may be made for its payment in full or by pro-rata portion in the due course of
the administration, inasmuch as upon the death of a person, his entire estate is burdened with
the payment of all of his debts and no creditor shall enjoy any preference or priority; all of
them shag share pro-rata in the liquidation of the estate of the deceased.
Section 1, Rule 73 of the Rules of Court, expressly provides that "the court first taking
cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts." The law is clear that where the estate of the deceased person
is already the subject of a testate or intestate proceeding, the administrator cannot enter into
any transaction involving it without prior approval of the probate court.
Attorney’s Fees
Salonga Hernandez v. Pascual (2006)
As a general rule, it is the executor or administrator who is primarily liable for attorney’s fees
due to the lawyer who rendered legal services for the executor or administrator in relation to
the settlement of the estate. The executor or administrator may seek reimbursement from
the estate for the sums paid in attorney’s fees if it can be shown that the services of the lawyer
redounded to the benefit of the estate. However, if the executor or administrator refuses to
pay the attorneys fees, the lawyer has two modes of recourse. First, the lawyer may file an
action against the executor or administrator, but in his/her personal capacity and not as
administrator or executor. Second, the lawyer may file a petition in the testate or intestate
proceedings, asking the court to direct the payment of attorneys fees as an expense of
administration. If the second mode is resorted to, it is essential that notice to all the heirs and
interested parties be made so as to enable these persons to inquire into the value of the
services of the lawyer and on the necessity of his employment.
The character of such claim for attorneys fees bears reiteration. As stated in Escueta, it
partakes the nature of an administration expense. Administration expenses include attorneys
fees incurred in connection with the administration of the estate. It is an expense attending
the accomplishment of the purpose of administration growing out of the contract or
obligation entered into by the personal representative of the estate, and thus the claim for
reimbursement must be superior to the rights of the beneficiaries.
Notwithstanding, there may be instances wherein the estate should not be charged with
attorneys fees. If the costs of counsels fees arise out of litigation among the beneficiaries
thereof themselves or in the protection of the interests of particular persons, the estate
generally cannot be held liable for such costs, although when the administrator employs
competent counsel on questions which affect his/her duties as the administrator and on which
he/she is in reasonable doubt, reasonable expenses for such services may be charged against
the estate subject to the approval of the court. It has also been held that an administrator
who brings on litigation for the deliberate purpose of defrauding the legitimate heirs and for
his own benefit is not entitled to reimbursement for counsels fees incurred in such litigation.
Clearly then, while the direct recovery of attorneys fees from the estate may be authorized if
the executor refuses to pay such fees, and claimed through the filing of the proper petition
with the probate court, such claim remains controvertible. This is precisely why Escueta and
its progenies require that the petition be made with notice to all the heirs and interested
parties.
The fact that the prayer for attorneys fees was cast in a motion and not a petition should not
impede such claim, considering that the motion was nonetheless filed with the Probate
Court. However, the record bears that the requisite notice to all heirs and interested
parties has not been satisfied. Such notice is material to the other heirs
to Doa Adelas estate.
The requisite notice to the heirs, devisees, and legatees is anchored on the constitutional
principle that no person shall be deprived of property without due process of law. The fact
that these persons were designated in the will as recipients of the testamentary dispositions
from the decedent establishes their rights to the succession, which are transmitted to them
from the moment of the death of the decedent. The payment of such attorneys fees
necessarily diminishes the estate of the decedent, and may effectively diminish the value of
the testamentary dispositions made by the decedent. These heirs, devisees, and legatees
acquire proprietary rights by reason of the will upon the moment of the death of the decedent,
incipient or inchoate as such rights may be. Hence, notice to these interested persons of the
claims for attorneys fees is integral, so as to allow them to pose any objections or oppositions
to such claim which, after all, could lead to the reduction of their benefits from the estate.
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 9
Escueta itself provides for two alternative approaches through which counsel may proceed
with his claim for attorneys fees. The first involves a separate suit against the executor or
administrator in the latters personal capacity. The second approach is a direct claim against
the estate itself, with due notice to all interested persons, filed with the probate court.
The second or alternative recourse is the direct claim for attorneys fees against the estate, as
authorized under Escueta. The character of this claim is not contractual in nature, but
rather, as a reimbursement for a necessary expense of administration, and it will be
allowed if it satisfies the criteria for necessary expenses of administration. Its entitlement
can be established by the actual services rendered by the lawyer necessary to the
accomplishment of the purposes of administration, and not necessarily by the contract of
engagement of the attorneys services.
In any event, whether the claim for attorneys fees was pursued through a separate suit against
Olivia Pascual (in her personal capacity) for the enforcement of the Retainer Agreement, or
against the estate of Doa Adela as reimbursement for necessary administration expenses, it
remains essential that a hearing be conducted on the claim. In either case too, the hearing will
focus on the value of the services of the petitioner and the necessity of engaging petitioner as
counsel.
The Probate Court, within its discretion, is capacitated to render the award of attorneys fees
as administration expenses either partially or provisionally, depending on the particular
circumstances and its ultimate basis for the determination of the appropriate attorneys fees.
Rule 87: Actions by and Against Executors and Administrators
Recovery of Real Estate Property
Heirs of Gregoire v. Baker (1927)
The remedy of the appellants is, therefore, to indemnify the administrator against costs and,
by leave of court, to institute an action in the name of the administrator to set aside the
assignment or other conveyance believed to have been made in fraud of creditors.
Orders made by a court with reference to the inclusion of items of property in the inventory
or the exclusion of items therefrom are manifestly of a purely discretionary, provisional, and
interlocutory nature and are subject to modification or change at any time during the course
of the administration proceedings. Such order in question not final in the sense necessary to
make it appealable.
Pascual v. Pascual (1942)
Under Rule 86, section 1, of the new Rules of Court, actions for the recovery or protection of
the property or rights of the deceased for causes which survive may be prosecuted or
defended by his executor or administrator. Upon the commencement of the testate or
intestate proceedings the heirs have no standing in court in actions of the above character,
except when the executor or administrator is unwilling or fails or refuses to act, in which event
to heirs may act in his place. Here, the fictitious sale is alleged to have been made to the
defendants, one of them, Miguel S. Pascual, being the executor appointed by the probate
court. Such executor naturally would not bring an action against himself for recovery of the
fishpond. His refusal to act may, therefore, be implied. And this brings the case under the
exception. It should be noted that in the complaint the prayer is that the fishpond be delivered
not to the plaintiff but to the executor, thus indicating that the action is brought in behalf of
the estate of the deceased.
It appearing, however, that the sale is alleged to be fictitious, with absolutely no
consideration, it should be regarded as a non-existent, not merely null, contract. (8
Manresa, Comentarios al Codigo Civil Español, 2nd ed., pp. 766-770.) And there being no
contract between the deceased and the defendants, there is in truth nothing to annul by
action. The action brought cannot thus be for annulment of contract, but is one for recovery
of a fishpond, a real action that should be, as it has been, brought in Pampanga, where the
property is located.
The general rule is that questions as to title to property cannot be passed upon in testate
proceedings. The court is, however, of the opinion and so holds that, when as in the instant
case, the parties interested are all heirs of the deceased claiming title under him, the question
as to whether the transfer made by the latter to the former is or is not fictitious, may properly
be brought by motion in the testate or intestate proceedings on or before the distribution of
the estate among the heirs. This procedure is optional to the parties concerned who may
choose to bring a separate action as a matter of convenience in the preparation or
presentation of evidence, and accordingly, the action brought by the appellant is not
improper.
Velasquez v. George (1983)
What the complaint sought to annul were documents of title which vested ownership over the
three parcels of land in question to defendant-mortgagee Villanueva, who is neither an
officer, a stockholder nor a director of the corporation, but a third party. Clearly, the lower
court had jurisdiction over the controversy. The fact that the plaintiffs-appellants
subsequently questioned the legality of the constitution of the board of directors of the
corporation did not divest the court of its jurisdiction to take cognizance of the case. What
determines jurisdiction of the court are the allegations in the complaint. If from the same, the
court has already acquired jurisdiction over the subject-matter, jurisdiction is retained up to
the end of the litigation.
Whether or not the mortgage contract, with an unusual provision whereby the mortgagors
waived their right to redeem the mortgaged property, could be executed without proper
approval of the probate court and without notice to the widow and legitimate children of the
deceased is a matter clearly within the authority of a trial court to decide. If in the course of
trial, the court believes that the validity of the composition of the board of directors is
absolutely necessary for resolution of the issues before it, the remedy is, at most, to require
that one issue to be threshed out before the Securities and Exchange Commission and to hold
in abeyance, the trial on the merits of the principal issues in the meantime. Certainly, the
solution is not for the lower court to surrender its judicial questions to an administrative
agency for resolution.
Since the ground for the present action to annul the aforesaid foreclosure proceedings is the
fraud resulting from such insidious machinations and collusion in which the administrator has
allegedly participated, it would be far fetched to expect the said administrator himself to file
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 10
the action in behalf of the estate. And who else but the heirs, who have an interest to assert
and to protect, would bring the action? Inevitably, this case should fall under the exception,
rather than the general rule that pending proceedings for the settlement of the estate, the
heirs have no right to commence an action arising out of the rights belonging to the
deceased." The case at bar falls under such an exception.
Rioferio et. al. v. CA (2004)
The issue presented by the petitioners before this Court is whether the heirs have legal
standing to prosecute the rights belonging to the deceased subsequent to the
commencement of the administration proceedings.
Pending the filing of administration proceedings, the heirs without doubt have legal
personality to bring suit in behalf of the estate of the decedent in accordance with the
provision of Article 777 of the New Civil Code that (t)he rights to succession are transmitted
from the moment of the death of the decedent. The provision in turn is the foundation of the
principle that the property, rights and obligations to the extent and value of the inheritance
of a person are transmitted through his death to another or others by his will or by operation
of law.
Even if administration proceedings have already been commenced, the heirs may still bring
the suit if an administrator has not yet been appointed. This is the proper modality despite
the total lack of advertence to the heirs in the rules on party representation, namely Section
3, Rule 3 and Section 2, Rule 87 of the Rules of Court. In fact, in the case of Gochan v. Young,
this Court recognized the legal standing of the heirs to represent the rights and properties of
the decedent under administration pending the appointment of an administrator.
The above-quoted rules, while permitting an executor or administrator to represent or to
bring suits on behalf of the deceased, do not prohibit the heirs from representing the
deceased. These rules are easily applicable to cases in which an administrator has already
been appointed. But no rule categorically addresses the situation in which special
proceedings for the settlement of an estate have already been instituted, yet no
administrator has been appointed. In such instances, the heirs cannot be expected to wait
for the appointment of an administrator; then wait further to see if the administrator
appointed would care enough to file a suit to protect the rights and the interests of the
deceased; and in the meantime do nothing while the rights and the properties of the decedent
are violated or dissipated.
Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz: (1)
if the executor or administrator is unwilling or refuses to bring suit; and (2) when the
administrator is alleged to have participated in the act complained of and he is made a party
defendant. Evidently, the necessity for the heirs to seek judicial relief to recover property of
the estate is as compelling when there is no appointed administrator, if not more, as where
there is an appointed administrator but he is either disinclined to bring suit or is one of the
guilty parties himself.
All told, therefore, the rule that the heirs have no legal standing to sue for the recovery of
property of the estate during the pendency of administration proceedings has three
exceptions, the third being when there is no appointed administrator such as in this case.
Provisional Authority of Probate Court
Modest v. Modesto (1959)
The purpose of the section above-reproduced (Sec. 6, Rule 88), which section was taken from
Section 709 of Act 190, is merely to elicit information or to secure evidence from those persons
suspected of having possessed or having knowledge of the properties left by a deceased
person, or of having concealed, embezzled or conveyed any of the said properties of the
deceased. In such proceedings the trial court has no authority to decide whether or not said
properties, real or personal, belong to the estate or to the persons examined. if, after such
examination there is good reason to believe that said person or persons examined are keeping
properties belonging to the estate, then the next step to be taken should be for the
administrator to file an ordinary action in court to recover the same.
The order requiring Cirilo to deliver the properties and cash stated in the order, as belonging
to the estate, said that Cirilo was supposed to have admitted having received or taken
possession of said properties after the death of Bruno. This statement or findings of the lower
court is not supported by the evidence on record. As a matter of fact, in the answer of Cirilo
to the motion of the administrator, he claimed that although he held the aparador mentioned
in Item 4 in the list properties, nevertheless, said furniture belonged to their parents and so
Bruno Modesto had only 1/6 share; that he, Cirilo, did not have the looking glass mentioned
in the motion because the same had been taken by Jesus himself, neither did he have the desk
in question; that though he held a trunk, it was empty and only contained clothes which were
torn; that the bicycle in question was in the possession of Mauricio Modesto, the nephew of
Bruno; that he, Cirilo, did not keep the 11 pieces of steel matting; neither did he ever receive
the amount of P1,700.00 supposed to have been deposited in the office of the Chief of Police.
But, even if Cirilo had admitted possession of the properties which he was required by the
court to deliver to Jesus, still it was necessary for the ordinary courts, not the probate court,
to determine the title and ownership of said properties.
Valera v. Inserto (1987)
A Court of First Instance (now Regional Trial Court), acting as a Probate Court, exercises but
limited jurisdiction, and thus has no power to take cognizance of and determine the issue of
title to property claimed by a third person adversely to the decedent, unless the claimant and
all the Other parties having legal interest in the property consent, expressly or impliedly, to
the submission of the question to the Probate Court for adjudgment, or the interests of third
persons are not thereby prejudiced, the reason for the exception being that the question of
whether or not a particular matter should be resolved by the Court in the exercise of its
general jurisdiction or of its limited jurisdiction as a special court (e.g., probate, land
registration, etc., is in reality not a jurisdictional but in essence of procedural one, involving a
mode of practice which may be waived.
The facts obtaining in this case, however, do not call for the application of the exception to
the rule. As already earlier stressed, it was at all times clear to the Court as well as to the
parties that if cognizance was being taken of the question of title over the fishpond, it was not
for the purpose of settling the issue definitely and permanently, and writing "finis" thereto,
the question being explicitly left for determination "in an ordinary civil action," but merely to
determine whether it should or should not be included in the inventory. This function of
resolving whether or not property should be included in the estate inventory is, to be sure,
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 11
one clearly within the Probate Court's competence, although the Court's determination is
only provisional in character, not conclusive, and is subject to the final decision in a separate
action that may be instituted by the parties.
The same norm governs the situation contemplated in Section 6, Rule 87 of the Rules of Court,
expressly invoked by the Probate Court in justification of its holding a hearing on the issue
arising from the parties' conflicting claims over the fishpond. The examination provided in
the cited section is intended merely to elicit evidence relevant to property of the decedent
from persons suspected of having possession or knowledge thereof, or of having concealed,
embezzled, or conveyed away the same. Of course, if the latter lays no claim to the property
and manifests willingness to tum it over to the estate, no difficulty arises; the Probate Court
simply issues the appropriate direction for the delivery of the property to the estate. On the
other hand, if the third person asserts a right to the property contrary to the decedent's, the
Probate Court would have no authority to resolve the issue; a separate action must be
instituted by the administrator to recover the property.
Since the determination by the Probate Court of the question of title to the fishpond was
merely provisional, not binding on the property with any character of authority, definiteness
or permanence, having been made only for purposes of in. conclusion in the inventory and
upon evidence adduced at the hearing of a motion, it cannot and should not be subject of
execution, as against its possessor who has set up title in himself (or in another) adversely to
the decedent, and whose right to possess has not been ventilated and adjudicated in an
appropriate action. These considerations assume greater cogency where, as here, the Torrens
title to the property is not in the decedents' names but in others, a situation on which this
Court has already had occasion to rule.
In regard to such incident of inclusion or exclusion, We hold that if a property covered by
Torrens title is involved, the presumptive conclusiveness of such title should be given due
weight, and in the absence of strong compelling evidence to the contrary, the holder thereof
should be consider as the owner of the property in controversy until his title is nullified or
modified in an appropriate ordinary action, particularly, when as in the case at bar, possession
of the property itself is in the persons named in the title.
Since, too, both the Probate Court and the estate administrators are one in the recognition of
the proposition that title to the fishpond could in the premises only be appropriately
determined in a separate action, the actual firing of such a separate action should have been
anticipated, and should not therefore have come as a surprise, to the latter. And since
moreover, implicit in that recognition is also the acknowledge judgment of the superiority of
the authority of the court in which the separate action is filed over the issue of title, the estate
administrators may not now be heard to complain that in such a separate action, the court
should have issued orders necessarily involved in or flowing from the assumption of that
jurisdiction. Those orders cannot in any sense be considered as undue interference with the
jurisdiction of the Probate Court. Resulting from the exercise of primary jurisdiction over the
question of ownership involving estate property claimed by the estate, they must be deemed
superior to otherwise contrary orders issued by the Probate Court in the exercise of what may
be, regarded as merely secondary, or provisional, jurisdiction over the same question.
Damages Arising from Crime
ABS-CBN v. Office of Ombudsman (2010)
Rules on the extinguished and subsisting liabilities of an accused who dies:
1. Death of an accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based solely thereon. As opined by Justice
Regalado, in this regard, the death of the accused prior to final judgment terminates
his criminal liability and only the civil liability directly arising from and based solely
on the offense committed, i.e., civil liability ex delicto in senso strictiore.
2. Corollarily, the claim for civil liability survives notwithstanding the death of accused,
if the same may also be predicated on a source of obligation other than delict.
Article 1157 of the Civil Code enumerates these other sources of obligation from
which the civil liability may arise as a result of the same act or omission:
a. Law
b. Contracts
c. Quasi-contracts
d. xxx xxx
e. Quasi-delicts
3. Where the civil liability survives, as explained in Number 2 above, an action for
recovery thereof may be pursued but only by filing a separate civil action and subject
to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This
separate civil action may be enforced either against the executor/administrator or
the estate of the accused, depending on the source of obligation upon which the
same is based as explained above.
4. Finally, the private offended party need not fear a forfeiture of his right to file this
separate civil action by prescription, in cases where during the prosecution of the
criminal action and prior to its extinction, the private offended party instituted
together therewith the civil action. In such case, the statute of limitations on the
civil liability is deemed interrupted during the pendency of the criminal case,
conformably with provisions of Article 1155 of the Civil Code, that should thereby
avoid any apprehension on a possible [de]privation of right by prescription.
The Rules of Court has separate provisions for different claims against the estate of a
decedent under Section 5 of Rule 86 and Section 1 of Rule 87. If, as insisted by petitioners,
respondents committed felonies in forcing them to sign the letter-agreement, petitioners
should have filed an action against the executor or administrator of Benedictos estate based
on Section 1, Rule 87 of the Rules of Court. But they did not. Instead they filed a claim against
the estate based on contract, the unambiguous letter-agreement, under Section 5, Rule 86 of
the Rules of Court. The existence of this claim against the estate of Benedicto as opposed to
the filing of an action against the executor or administrator of Benedictos estate forecloses all
issues on the circumstances surrounding the execution of this letter- agreement.
Rule 88: Payment of the Debts of the Estate
Aldamiz v. Judge of CFI Mindoro (1949)
The correct procedure for the collection of attorney's fees, is for the counsel to request the
administrator to make payment and file an action against him in his personal capacity and not
as an administrator should he fail to pay. f the judgment is rendered against the administrator
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and he pays, he may include the fees so paid in his account to the court. The attorney also
may, instead of bringing such an action, file a [petition in the testate or intestate proceeding
"asking that the court, after notice to all persons interested, allow his claim and direct the
administrator to pay it as an expense of administration."
A writ of execution is not the proper procedure allowed by the Rules of the Court for the
payment of debts and expenses of administration. The proper procedure is for the court to
order the sale of personal estate or the sale of mortgaged of real property of the deceased
and all debts or expenses of administration should be paid out of the proceeds of the sale or
mortgage. The order for the sale or mortgage should be issued upon motion of the
administrator and with the written notice to all the heirs, legatees and devisees residing in the
Philippines, according to Rule 89, section 3, and Rule 90, section 2. And when sale or mortgage
of real estate is to be made, the regulations contained in Rule 90, section 7, should be
complied with.
Execution may issue only where the devisees, legatees or heirs have entered into possession
of their respective portions in the estate prior to settlement and payment of the debts and
expenses of administration and it is later ascertained that there are such debts and expenses
to be paid, in which case "the court having jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of their several liabilities, and order how much and
in what manner each person shall contribute, and may issue execution if circumstances
require."
Buan v. Laya (1957)
A contingent claim is one which, by its nature, is necessarily dependent upon an uncertain
event for its existence or validity. It may or may not develop into a valid and enforceable claim,
and its validity and enforceability depending upon an uncertain event.
A contingent claim does not follow the temporary orders of dismissal of an action upon which
it is based; it awaits the final outcome thereof and only said final result can cause its
termination. The rules provide that a contingent claim is to be presented in the administration
proceedings in the same manner as any ordinary claim, and that when the contingency arises
which converts the contingent claim into a valid claim, the court should then be informed that
the claim had already matured.
Dinglasan v. Ang Chia (1951)
The act of the lower court in taking cognizance of civil case No. V-331 is not tantamount to
assuming jurisdiction over said case nor does it violate the ruling of this court which says that
"when questions arise as to the ownership of property, alleged to be part of the estate of a
deceased person, but claimed by some other person to be his property, not by virtue of any
right of inheritance from the deceased, but by title adverse to that of the deceased and his
estate, such questions cannot be determined in the course of administration proceedings. The
Court of First Instance, acting as probate court, has no jurisdiction to adjudicate such
contentions, which must be submitted to the court in the exercise of its general jurisdiction as
a Court of First Instance to try and determine ordinary actions.
If the appellants filed a claim in intervention in the intestate proceedings it was only pursuant
to their desire to protect their interests it appearing that the property in litigation is involved
in said proceedings and in fact is the only property of the estate left subject of administration
and distribution; and the court is justified in taking cognizance of said civil case because of the
unavoidable fact that whatever is determined in said civil case will necessarily reflect and have
a far reaching consequence in the determination and distribution of the estate. In so taking
cognizance of civil case No. V-331 the court does not assume general jurisdiction over the case
but merely makes of record its existence because of the close interrelation of the two cases
and cannot therefore be branded as having acted in excess of its jurisdiction.
Section 1, Rule 88, of the Rules of Court, expressly provides that "action to recover real or
personal property from the estate or to enforce a lien thereon, and actions to recover
damages for an injury to person or property, real or personal, may be commenced against the
executor or administrator". What practical value would this provision have if the action
against the administrator cannot be prosecuted to its termination simply because the heirs
desire to close the intestate proceedings without first taking any step to settle the ordinary
civil case? This rule is but a corollary to the ruling which declares that questions concerning
ownership of property alleged to be part of the estate but claimed by another person should
be determined in a separate action and should be submitted to the court in the exercise of its
general jurisdiction. These rules would be rendered nugatory if we are to hold that an intestate
proceedings can be closed by any time at the whim and caprice of the heirs. Another rule of
court provides that "after a party dies and the claim is not thereby extinguished, the court
shall order, upon proper notice, the legal representative of the deceased to appear and to be
substituted for the deceased, within a period of thirty (30) days, or within such time as may be
granted. If the legal representative fails to appear within said time, the court may order the
opposing party to procure the appointment of a legal representative of the deceased within a
time to be specified by the court, and the representative shall immediately appear for and on
behalf of the interest of the deceased." This rule also implies that a probate case may be held
in abeyance pending determination of an ordinary case wherein an administrator is made a
party. To hold otherwise would be also to render said rule nugatory.
Rule 89: Sale, Mortgages and Other Encumbrances of Property of
Decedent
Authority to Sell/Mortgage Estate Property
Godoy v. Orellano (1921)
In the sale of the property of an intestate estate for the benefit of the heirs, it is necessary to
comply with the provisions of sections 717, 718, and 722 of the Code of Civil Procedure. The
said sections prescribed the proceedings to be had before an administrator of an intestate or
testate estate may sell personal or real property and also the conditions under which the
personal or real property pertaining to an estate may be sold or disposed of by the
administrator. Unless compliance is had with the provisions of these sections, the sale of the
aforesaid dredge by the administratrix, or her promise to sell it is null and void.
A sale and conveyance by executors without an order of the probate court, under a will
devising property to them in trust, but not authorizing any sale of the realty, otherwise than
by a direction to pay the debts of the testator, is void, and passes no title to the purchase.
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A sale by an administrator of the personal property of the estate, without the authority of an
order of court, or of a will, or under an order of court which is void for want of jurisdiction, does
not confer on the purchaser a title which is available against a succeeding administrator.
Under the law, the court has exclusive jurisdiction to authorize the sale of properties like the
one under consideration and the power of attorney executed by the heirs of Orellano in favor
of the administratrix, without authority of court, has no legal effect, and this is the more so,
since two of the said heirs are under age, and the others did not ratify the option contract, as
provided in the aforesaid power of attorney.
CFI Rizal v. CA (1981)
Whether or not FELIX Ong had offered P450,000.00 for the property is of little importance. It
appears that the sale sought to be annulled is a private sale duly authorized by the probate
court and not a public auction sale, although the executrix had offered the property to
different persons, so that FELIX Ong, who merely offered to buy the property, has no legal
personality to impugn the validity of the said sale. It is well-settled that for a person to be able
to intervene in an administration proceeding concerning the estate of a deceased person, it is
necessary for him to have an interest in such estate. An interested party in the estate of a
decedent has been defined as one who would be benefited by the estate, such as an heir, or
one who has a claim against the estate, such as a creditor. FELIX Ong does not claim to be a
creditor of the estate of Ponciano Ong Lacson. Neither is he an heir of the decedent.
Consequently, he has no right to intervene either in the proceedings brought in connection
with the estate or in the settlement of the succession.
At any rate, in a special proceeding for administration of an estate, the probate court enjoys
ample discretion in determining under what conditions a particular sale would be most
beneficial to all persons interested, and appellate courts are wont not to interfere with or
attempt to replace the action taken by it unless it be shown that there has been positive abuse
of discretion. 6 In the instant case, the offer of FELIX Ong to buy the property at a higher price
would not make the approval of the sale a grave abuse of discretion because the difference in
the prices was not the only factor taken into consideration by the probate court in approving
the sale.
The subsequent increase in the value of the property is not sufficient reason for turning down
a conveyance made by an administrator of an estate.
Jaroda v. Cusi (1969)
Bank withdrawal is foreign to the powers and duties of a special administrator, which, as
Section 2 of Rule 80 of the Rules of Court provides, are to take possession and charge of the
goods, chattels, rights, credits and estate of the decease and preserve the same for the
executor or administrator afterwards appointed, and for that purpose may commence and
maintain suits as administrator. He may sell only such perishable and other property as the
court orders sold. A special administrator shall not be liable to pay any debts of the deceased
unless so ordered by the court.
The withdrawal of the bank deposits may be viewed as a taking of possession and charge of
the credits of the estate, and apparently within the powers and duties of a special
administrator; but actually, said withdrawal is a waiver by the special administrator of a prima
facie exclusive right of the intestate estate to the bank deposits in favor of the co-owners of
the Juna Subdivision, who were allegedly claiming the same as alleged by the administrator
in his motion. The bank deposits were in the name of the deceased; they, therefore,
belong prima facie to his estate after his death. And until the contrary is shown by proper
evidence at the proper stage, when money claims may be filed in the intestate proceedings,
the special administrator is without power to make the waiver or to hand over part of the
estate, or what appears to be a prima facie part of the estate, to other persons on the ground
that the estate is not the owner thereof. If even to sell for valuable consideration property of
the estate requires prior written notice of the application to the heirs, legatees, or devisees
under Rule 89 of the Rules of Court, such notice is equally, if not more, indispensable for
disposing gratuitously of assets of the decedent in favor of strangers. Admittedly, no such
notice was given, and without it the court's authority is invalid and improper.
The very rule, Section 4 of Rule 89 of the Rules of Court, relied on by respondent Tan to sustain
the power of attorney for the sale of the pro-indiviso share of the estate in the subdivision
requires "written notice to the heirs, devisees, and legatees who are interested in the estate
to be sold" and, admittedly, administrator Tan did not furnish such notice. Without such
notice, the order of the court authorizing the sale is void.
It has been broadly stated that an administrator is not permitted to deal with himself as an
individual in any transaction concerning trust property. It is well settled that an executrix holds
the property of her testator's estate as a trustee. The law, for wise reasons, will not permit one
who acts in a fiduciary capacity thus to deal with himself in his individual capacity.
As a general rule, auto-contracts are permissible if not expressly prohibited and that there is
no express provision of law prohibiting an administrator from appointing himself as his own
agent, even if correct, cannot and should not apply to administrator of decedent's estates, in
view of the fiduciary relationship that they occupy with respect to the heirs of the deceased
and their responsibilities toward the probate court. A contrary ruling would open the door to
fraud and maladministration, and once the harm is done, it might be too late to correct it.
This dual agency of the respondent Tan rendered him incapable of independent defense of
the estate's interests against those of the majority co-owners. It is highly undesirable, if not
improper, that a court officer and administrator, in dealing with property under his
administration, should have to look to the wishes of strangers as well as to those of the court
that appointed him. A judicial administrator should be at all times subject to the orders of the
appointing Tribunal and of no one else.
Pahamotang v. PNB (2005)
As we see it, the determinative question is whether or not petitioners can obtain relief from
the effects of contracts of sale and mortgage entered into by Agustin without first initiating a
direct action against the orders of the intestate court authorizing the challenged contracts.
We answer the question in the affirmative.
The trial court acquired jurisdiction over the subject matter of the case upon the allegations
in the complaint that said contracts were entered into despite lack of notices to the heirs of
the petition for the approval of those contracts by the intestate court.
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The trial court made the correct conclusion of law that the challenged orders of the intestate
court granting Agustins petitions were null and void for lack of compliance with the
mandatory requirements of Rule 89 of the Rules of Court, particularly Sections 2, 4, 7 thereof.
Settled is the rule in this jurisdiction that when an order authorizing the sale or encumbrance
of real property was issued by the testate or intestate court without previous notice to the
heirs, devisees and legatees as required by the Rules, it is not only the contract itself which is
null and void but also the order of the court authorizing the same.
Without compliance with Sections 2, 4 and 7 of Rule 89 of the Rules of Court, the authority to
sell, the sale itself and the order approving it would be null and void ab initio. The requirements
of Rule 89 of the Rules of Court are mandatory and failure to give notice to the heirs would
invalidate the authority granted by the intestate/probate court to mortgage or sell estate
assets.
Rule 90: Distribution and Partition of Estate
Partial Distribution
Gatmaitan v. Medina (1960)
No bond was fixed by the court as a condition precedent to the partial distribution ordered by
it, a bond which, because of the reasons already adduced, becomes all the more imperative.
While the wording of the appealed order seem to indicate that it was rendered with the
conformity of the heirs, there is reason to believe that it was just a mistaken impression on
the part of the court. Soon after the order was rendered, the administrator-appellant filed a
motion for reconsideration, among other things, calling the attention of the court that he
never agreed to the partial distribution of the estate in the manner ordained in the appealed
order. Although said motion was denied for lack of merit, the court did not deny categorically
appellant's imputation, which could have been easily averred to by it; nor did the appellees at
any time prior to this appeal controvert the aforesaid allegation of the administrator. There is
plausibility in appellant's statement that the agreement referred to in the order was actually
one between the appellees among themselves.
The bond required by the Rules is not solely for the protection of the heirs then appearing, but
also for the benefit of creditors and subsequent claimants who have not agreed to the
advances.
Since the purpose of the bond required by section 1, paragraph 2, of Rule 91 is to protect not
only the appellant but also the creditors and subsequent claimants to the estate, in order that
they may not be prejudiced by the partial distribution, the amount of the bond could not be
fixed without hearing such interested parties, and there is no showing that they were
consulted. Hence, the bond offered could not affect the merits of this appeal, although the
Court below is not precluded for approving a new bond.
Quasha Pena v. LCN Const. (2008)
Partial distribution of the decedent's estate pending final termination of the testate or
intestate proceeding should as much as possible be discouraged by the courts, and, except in
extreme cases, such form of advances of inheritance should not be countenanced. The reason
for this rule is that courts should guard with utmost zeal and jealousy the estate of the
decedent to the end that the creditors thereof be adequately protected and all the rightful
heirs be assured of their shares in the inheritance.
Order of Partition/Distribution
Torres v. Encarnacion (1951)
The question of the petitioners' title and possession has been concluded by the partition and
become a closed matter. All they could prove if allowed to call witnesses would be that the
aforesaid property belonged to them or to their father's estate and that they are in possession
of it to the exclusion of Marcelo de Borja's personal representative. Granting all such proofs
to be true, as indeed we may for the purpose of this decision, yet they would not detract from
the authority of the court to make the order under consideration. The court had only the
partition to examine, to see if the questioned land was included therein. The inclusion being
shown, and there being no allegation that the inclusion was effected through improper means
or without the petitioners' knowledge, the partition barred any further litigation on said title
and operated to bring the property under the control and jurisdiction of the court for proper
disposition according to the tenor of the partition. To all intents and purposes, the property
was in custodia legis. What the petitioners could have done was to ask for a reconsideration or
modification of the partition on the grounds of fraud, excusable mistake, inadvertence, etc. if
they could substantiate such allegations. They can not attack the partition collaterally, as they
are trying to do in this case.
Imperial v. Monoz (1974)
Appeal in special proceedings; Order of court determining distributive share of heirs
appealable. — An order of the Court of First Instance which determines the distributive shares
of the heirs of a deceased-person is appealable.
It is clear that the order of the lower court is final and, therefore, appealable to this Court.
Under Rule 109, section 1, a person may appeal in special proceedings from an order of the
Court of First Instance where such order "determines ... the distributive share of the estate to
which such person is entitled. The two (2) questioned orders, being final in character, should
have been appealed by the party adversely affected within the 30-day reglementary period
provided for appeal. This was not done.
Recognition of Heirship
Lopez v. Lopez (1939)
A person claiming to be an acknowledged natural child of a deceased need not maintain a
separate action for recognition but may simply intervene in the intestate proceedings, by
alleging and proving therein his or her status as such, and claiming accordingly the right to
share in the inheritance.
The petition filed by Concepcion Lopez in the intestate proceedings is alleged to be
insufficient. It is said that there is no prayer therein that she be declared an acknowledged
natural child, but only that she be adjudged universal heiress, of the deceased. In the body of
the petition there is an allegation that she is a natural child of the deceased and has been in
an uninterrupted possession of such status. And inasmuch as the recognition of her status is
a prerequisite to her right to heirship, her prayer that she be declared universal heiress implies
a like prayer that she be recognized as an acknowledged natural child. Furthermore, it is a
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 15
well-settled rule of pleadings, applicable to motions or petitions, that the prayer for relief,
though part of the pleading, is no part of the cause of action or defense alleged therein, and
the pleader is entitled to as much relief as the facts duly pleaded may warrant.
Guy v. CA (2006)
Illegitimate children who were still minors at the time the Family Code took effect and whose
putative parent died during their minority are given the right to seek recognition for a period
of up to four years from attaining majority age. This vested right was not impaired or taken
away by the passage of the Family Code.
Under the Family Code, when filiation of an illegitimate child is established by a record of birth
appearing in the civil register or a final judgment, or an admission of filiation in a public
document or a private handwritten instrument signed by the parent concerned, the action for
recognition may be brought by the child during his or her lifetime. However, if the action is
based upon open and continuous possession of the status of an illegitimate child, or any other
means allowed by the rules or special laws, it may only be brought during the lifetime of the
alleged parent.
A natural child having a right to compel acknowledgment, but who has not been in fact
acknowledged, may maintain partition proceedings for the division of the inheritance against
his coheirs and the same person may intervene in proceedings for the distribution of the
estate of his deceased natural father, or mother.
Rule 91: Escheats
In re: Estate of Lao Sayco (1912)
Section 750 of the Code of Civil Procedure, applicable to the case, reads as follows:
When a person dies intestate, seized of real or personal property in the Philippine Islands,
leaving no heir or person by law entitled to the same, the president and municipal council of
the municipality where the deceased last resided, if he was an inhabitant of these Islands, or
of the municipality in which he had estate, if he resided out of the Islands, may, on behalf of
the municipality, file a petition with the Court of First Instance of the province for an
inquisition in the premises; the court shall thereupon appoint a time and place of hearing and
deciding on such petition, and cause a notice thereof to be published in some newspaper of
general circulation in the province of which the deceased was last an inhabitant, if within the
Philippine Islands, and if not in some newspaper of general circulation in the province in which
he had estate. The notice shall recite the substance of the facts and request set forth in the
petition, the time and place at which persons claiming the estate may appear and be heard
before the court, and shall be published at least six weeks successively, the last of which
publications shall be at least six weeks before the time appointed by the court to make
inquisition.
In order that the property which belonged to the decedent Bernardo Rafanan Lao Sayco,
situated in these Islands, may be decreed to have reverted to the Senate, pursuant to the
provisions of section 751 of the Code of Civil Procedure, it is indispensable that the
requirements contained in the above-quoted section of the said code should have been
complied with by making the inquisition with regard to the matters specified, at the instance
of the interested municipality. Furthermore, the person who lays claim to the property left by
the decedent at death, as the latter's successor or heir, must prove his identity and rights.
Counsel for the municipality of Mambajao merely prayed for an order of reversion and for the
adjudication in behalf of the municipality of the property aforementioned; he did not comply
with the provisions of the law by furnishing the required proofs in regard to the matters
hereinabove indicated, which must be the subject of an investigation.
Republic v. CA & Solano (2002)
Escheat is a proceeding, unlike that of succession or assignment, whereby the state, by virtue
of its sovereignty, steps in and claims the real or personal property of a person who dies
intestate leaving no heir. In the absence of a lawful owner, a property is claimed by the state
to forestall an open "invitation to self-service by the first comers." Since escheat is one of the
incidents of sovereignty, the state may, and usually does, prescribe the conditions and limits
the time within which a claim to such property may be made. The procedure by which the
escheated property may be recovered is generally prescribed by statue, and a time limit is
imposed within which such action must be brought.
In this jurisdiction, a claimant to an escheated property must file his claim "within five (5) years
from the date of such judgment, such person shall have possession of and title to the same,
or if sold, the municipality or city shall be accountable to him for the proceeds, after deducting
the estate; but a claim not made shall be barred forever." The 5-year period is not a device
capriciously conjured by the state to defraud any claimant; on the contrary, it is decidedly
prescribed to encourage would-be claimants to be punctilious in asserting their claims,
otherwise they may lose them forever in a final judgment.
In a special proceeding for escheat under sections 750 and 751 the petitioner is not the sole
and exclusive interested party. Any person alleging to have a direct right or interest in the
property sought to be escheated is likewise an interested party and may appear and oppose
the petition for escheat.
A judgment in escheat proceedings when rendered by a court of competent jurisdiction is
conclusive against all persons with actual or constructive notice, but not against those who
are not parties or privies thereto. A judgment of escheat was held conclusive upon persons
notified by advertisement to all persons interested. Absolute lack on the part of petitioners of
any dishonest intent to deprive the appellee of any right, or in any way injure him, constitutes
due process of law, proper notice having been observed."With the lapse of the 5-year period
therefore, private respondent has irretrievably lost her right to claim and the
supposed "discovery of the deeds of donation" is not enough justification to nullify the
escheat judgment which has long attained finality.
In the mind of this Court the subject properties were owned by the decedent during the time
that the escheat proceedings were being conducted and the lower court was not divested of
its jurisdiction to escheat them in favor of Pasay City notwithstanding an allegation that they
had been previously donated. We recall that a motion for intervention was earlier denied by
the escheat court for failure to show "valid claim or right to the properties in question. Where
a person comes into an escheat proceeding as a claimant, the burden is on such intervenor to
establish his title to the property and his right to intervene. A fortiori, the certificates of title
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 16
covering the subject properties were in the name of the decedent indicating that no transfer
of ownership involving the disputed properties was ever made by the deceased during her
lifetime. In the absence therefore of any clear and convincing proof showing that the subject
lands had been conveyed by Hankins to private respondent Solano, the same still remained,
at least before the escheat, part of the estate of the decedent and the lower court was right
not to assume otherwise. The Court of Appeals therefore cannot perfunctorily presuppose
that the subject properties were no longer part of the decedent's estate at the time the lower
court handed down its decision on the strength of a belated allegation that the same had
previously been disposed of by the owner. It is settled that courts decide only after a close
scrutiny of every piece of evidence and analyze each case with deliberate precision and
unadulterated thoroughness, the judgment not being diluted by speculations, conjectures
and unsubstantiated assertions.

Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 17

Other Special Proceedings
Rules 99-100: Adoption and Custody of Minors
Domestic Adoption
Jurisdiction and Venue (Secs 6, 7, 20, BP 129; Sec 5, RA 8369)
Eligible Parties (Secs 4-5, 7-8, RA 8552; Sec 2, 3-8, RA 9523)
Republic v. CA and Bobiles (1992)
Although Dioscoro Bobiles was not named as one of the petitioners in the petition for
adoption filed by his wife, his affidavit of consent, attached to the petition as Annex "B" and
expressly made an integral part thereof, shows that he himself actually joined his wife in
adopting the child.
The foregoing declarations, and his subsequent confirmatory testimony in open court, are
sufficient to make him a co-petitioner. Under the circumstances then obtaining, and by
reason of his foreign residence, he must have yielded to the legal advice that an affidavit of
consent on his part sufficed to make him a party to the petition. This is evident from the text
of his affidavit. Punctiliousness in language and pedantry in the formal requirements should
yield to and be eschewed in the higher considerations of substantial justice. The future of an
innocent child must not be compromised by arbitrary insistence of rigid adherence to
procedural rules on the form of pleadings.
Adoption statutes, as well as matters of procedure leading up to adoption, should be liberally
construed to carry out the beneficent purposes of the adoption institution and to protect the
adopted child in the rights and privileges coming to it as a result of the adoption. The modern
tendency of the courts is to hold that there need not be more than a substantial compliance
with statutory requirements to sustain the validity of the proceeding; to refuse would be to
indulge in such a narrow and technical construction of the statute as to defeat its intention
and beneficial results or to invalidate proceedings where every material requirement of the
statute was complied with.
In determining whether or not to set aside the decree of adoption the interests and welfare of
the child are of primary and paramount consideration. The welfare of a child is of paramount
consideration in proceedings involving its custody and the propriety of its adoption by
another, and the courts to which the application for adoption is made is charged with the duty
of protecting the child and its interests and, to bring those interests fully before it, it has
authority to make rules to accomplish that end. Ordinarily, the approval of the adoption rests
in the sound discretion of the court. This discretion should be exercised in accordance with
the best interests of the child, as long as the natural rights of the parents over the child are
not disregarded. In the absence of a showing of grave abuse, the exercise of this discretion by
the approving official will not be disturbed.
Adoption statutes, being humane and salutary, hold the interests and welfare of the child to
be of paramount consideration. They are designed to provide homes, parental care and
education for unfortunate, needy or orphaned children and give them the protection of
society and family in the person of the adopted, as well as to allow childless couples or persons
to experience the joys of parenthood and give them legally a child in the person of the adopted
for the manifestation of their natural parental instincts. Every reasonable intendment should
be sustained to promote and fulfill these noble and compassionate objectives of the law.
Republic v. Toledano and Sps. Clouse (1994)
Article 184, paragraph (3) of Executive Order No. 209 expressly enumerates the persons who
are not qualified to adopt, viz.:
(3) An alien, except:
(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;
(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or
(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a
relative by consanguinity of the latter.
Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with
the rules on inter-country adoption as may be provided by law.
There can be no question that private respondent Alvin A. Clouse is not qualified to adopt
Solomon Joseph Alcala under any of the exceptional cases in the aforequoted provision. In
the first place, he is not a former Filipino citizen but a natural born citizen of the United States
of America. In the second place, Solomon Joseph Alcala is neither his relative by
consanguinity nor the legitimate child of his spouse. In the third place, when private
respondent’s spouses Clouse jointly filed the petition to adopt Solomon Joseph Alcala on
February 21, 1990, private respondent Evelyn A. Clouse was no longer a Filipino citizen. She
lost her Filipino citizenship when she was naturalized as a citizen of the United States in 1988.
Article 185. Husband and wife must jointly adopt, except in the following cases:
(1) When one spouse seeks to adopt his own illegitimate child; or
(2) When one spouse seeks to adopt the legitimate child of the other.
Article 185 requires a joint adoption by the husband and wife, a condition that must be read
along together with Article 184.
The historical evolution of this provision is clear. Presidential Decree 603 (The Child and Youth
Welfare Code), provides that husband and wife "may" jointly adopt. Executive Order No. 91
issued on December 17, 1986 amended said provision of P.D. 603. It demands that both
husband and wife "shall" jointly adopt if one of them is an alien. It was so crafted to protect
Filipino children who are put up for adoption. The Family Code reiterated the rule by requiring
that husband and wife "must" jointly adopt, except in the cases mentioned before. Under the
said new law, joint adoption by husband and wife is mandatory. This is in consonance with the
concept of joint parental authority over the child, which is the ideal situation. As the child to
be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses
to adopt jointly. The rule also insures harmony between the spouses.
Republic v. Miller (1999)
An alien qualified to adopt under the Child and Youth Welfare Code, which was in force at the
time of the filing of the petition, acquired a vested right which could not be affected by the
subsequent enactment of a new law disqualifying him.
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 18
Consequently, the enactment of the Family Code, effective August 3, 1988, will not impair the
right of respondents who are aliens to adopt a Filipino child because the right has become
vested at the time of filing of the petition for adoption and shall be governed by the law then
in force. "A vested right is one whose existence, effectivity and extent does not depend upon
events foreign to the will of the holder. The term expresses the concept of present fixed
interest which in right reason and natural justice should be protected against arbitrary State
action, or an innately just and imperative right which enlightened free society, sensitive to
inherent and irrefragable individual rights, cannot deny." "Vested rights include not only legal
or equitable title to the enforcement of a demand, but also an exemption from new
obligations created after the right has vested."
"As long as the petition for adoption was sufficient in form and substance in accordance with
the law in governance at the time it was filed, the court acquires jurisdiction and retains it until
it fully disposes of the case. To repeat, the jurisdiction of the court is determined by the
statute in force at the time of the commencement of the action. Such jurisdiction of a court,
whether in criminal or civil cases, once it attaches cannot be ousted by a subsequent
happenings or events, although of a character which would have prevented jurisdiction from
attaching in the first instance."[
Therefore, an alien who filed a petition for adoption before the effectivity of the Family code,
although denied the right to adopt under Art. 184 of said Code, may continue with his petition
under the law prevailing before the Family Code.
In re: Michelle Lim (2009)
The use of the word shall in the above-quoted provision means that joint adoption by the
husband and the wife is mandatory. This is in consonance with the concept of joint parental
authority over the child which is the ideal situation. As the child to be adopted is elevated to
the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule
also insures harmony between the spouses.
The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does
not suffice. There are certain requirements that Olario must comply being an American
citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must
prove that his country has diplomatic relations with the Republic of the Philippines; (2) he
must have been living in the Philippines for at least three continuous years prior to the filing
of the application for adoption; (3) he must maintain such residency until the adoption decree
is entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed
to enter the adopters country as the latters adopted child. None of these qualifications were
shown and proved during the trial.
These requirements on residency and certification of the aliens qualification to adopt cannot
likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the
fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees
the legitimate children of petitioner.
Parental authority includes caring for and rearing the children for civic consciousness and
efficiency and the development of their moral, mental and physical character and well-being.
The father and the mother shall jointly exercise parental authority over the persons of their
common children. Even the remarriage of the surviving parent shall not affect the parental
authority over the children, unless the court appoints another person to be the guardian of
the person or property of the children.
It is true that when the child reaches the age of emancipation that is, when he attains the age
of majority or 18 years of age emancipation terminates parental authority over the person and
property of the child, who shall then be qualified and responsible for all acts of civil life.
However, parental authority is merely just one of the effects of legal adoption.
Adoption has, thus, the following effects: (1) sever all legal ties between the biological
parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2)
deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee
reciprocal rights and obligations arising from the relationship of parent and child, including
but not limited to: (i) the right of the adopter to choose the name the child is to be known; and
(ii) the right of the adopter and adoptee to be legal and compulsory heirs of each other.
Therefore, even if emancipation terminates parental authority, the adoptee is still considered
a legitimate child of the adopter with all the rights of a legitimate child such as: (1) to bear the
surname of the father and the mother; (2) to receive support from their parents; and (3) to be
entitled to the legitime and other successional rights. Conversely, the adoptive parents shall,
with respect to the adopted child, enjoy all the benefits to which biological parents are
entitled such as support and successional rights.
The filing of a case for dissolution of the marriage between petitioner and Olario is of no
moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is a
judicial decree for the dissolution of the marriage between petitioner and Olario, the marriage
still subsists. That being the case, joint adoption by the husband and the wife is required. We
reiterate our ruling above that since, at the time the petitions for adoption were filed,
petitioner was married to Olario, joint adoption is mandatory.
Consent to Adoption (Secs 9, RA 8552; Art 2(2), RA 9253)
Cang v. Clavano (1998)
As amended by the Family Code, the statutory provision on consent for adoption now reads:
Art. 188. The written consent of the following to the adoption shall be necessary:
(1) The person to be adopted, if ten years of age or over;
(2) The parents by nature of the child, the legal guardian, or the proper government
instrumentality;
(3) The legitimate and adopted children, ten years of age or over, of the adopting parent or
parents;
(4) The illegitimate children, ten years of age or over, of the adopting parents, if living with
said parent and the latters spouse, if any; and
(5) The spouse, if any, of the person adopting or to be adopted. (Underscoring supplied)
Based on the foregoing, it is thus evident that notwithstanding the amendments to the law,
the written consent of the natural parent to the adoption has remained a requisite for its
validity. Notably, such requirement is also embodied in Rule 99 of the Rules of Court.
As clearly inferred from the foregoing provisions of law, the written consent of the natural
parent is indispensable for the validity of the decree of adoption. Nevertheless, the
requirement of written consent can be dispensed with if the parent has abandoned the child
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 19
or that such parent is insane or hopelessly intemperate. The court may acquire jurisdiction
over the case even without the written consent of the parents or one of the parents provided
that the petition for adoption alleges facts sufficient to warrant exemption from compliance
therewith. This is in consonance with the liberality with which this Court treats the procedural
aspect of adoption.
In the instant case, only the affidavit of consent of the natural mother was attached to the
petition for adoption. Petitioners consent, as the natural father is lacking. Nonetheless, the
petition sufficiently alleged the fact of abandonment of the minors for adoption by the natural
father. The allegations of abandonment in the petition for adoption, even absent the written
consent of petitioner, sufficiently vested the lower court with jurisdiction since abandonment
of the child by his natural parents is one of the circumstances under which our statutes and
jurisprudence dispense with the requirement of written consent to the adoption of their minor
children.
However, in cases where the father opposes the adoption primarily because his consent
thereto was not sought, the matter of whether he had abandoned his child becomes a proper
issue for determination.The issue of abandonment by the oppositor natural parent is a
preliminary issue that an adoption court must first confront. Only upon failure of the
oppositor natural father to prove to the satisfaction of the court that he did not abandon his
child may the petition for adoption be considered on its merits.
In the instant case, records disclose that petitioners conduct did not manifest a settled
purpose to forego all parental duties and relinquish all parental claims over his children as to
constitute abandonment. Physical estrangement alone, without financial and
moral desertion, is not tantamount to abandonment.[ While admittedly, petitioner was
physically absent as he was then in the United States, he was not remiss in his natural and
legal obligations of love, care and support for his children. He maintained regular
communication with his wife and children through letters and telephone. He used to send
packages by mail and catered to their whims.
Article 213 of the Family Code states: . . . in case of legal separation of parents, parental
authority shall be exercised by the parent designated by the court. In awarding custody, the
court shall take into account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit.
It should be noted, however, that the law only confers on the innocent spouse the exercise of
parental authority. Having custody of the child, the innocent spouse shall implement the sum
of parental rights with respect to his rearing and care. The innocent spouse shall have the right
to the childs services and earnings, and the right to direct his activities and make decisions
regarding his care and control, education, health and religion
Parental authority and responsibility are inalienable and may not be transferred or renounced
except in cases authorized by law. The right attached to parental authority, being purely
personal, the law allows a waiver of parental authority only in cases of adoption, guardianship
and surrender to a children’s home or an orphan institution. When a parent entrusts the
custody of a minor to another, such as a friend or godfather, even in a document, what is given
is merely temporary custody and it does not constitute a renunciation of parental
authority. Even if a definite renunciation is manifest, the law still disallows the same.
The father and mother, being the natural guardians of unemancipated children, are duty-
bound and entitled to keep them in their custody and company.
While parental authority may be waived, as in law it may be subject to a compromise, there
was no factual finding in the legal separation case that petitioner was such an irresponsible
person that he should be deprived of custody of his children or that there are grounds under
the law that could deprive him of parental authority.
Parents have the natural right, as well as the moral and legal duty, to care for their children,
see to their upbringing and safeguard their best interest and welfare. This authority and
responsibility may not be unduly denied the parents; neither may it be renounced by them.
Even when the parents are estranged and their affection for each other is lost, the attachment
and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts
allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-
being of the child.
Procedure (Secs 7-18, 21-24, RA 8552)
DSWD v. Belen (1997)
Circular No. 12, as a complementary measure, was issued by this Court precisely to obviate
the mishandling of adoption cases by judges, particularly in respect to the aforementioned
case study to be conducted in accordance with Article 33 of Presidential Decree No. 603 by
the DSWD itself and involving the child to be adopted, its natural parents, and the adopting
parents. It definitively directs Regional Trial Courts hearing adoption cases:
"(1) to NOTIFY the Ministry of Social Services and Development, thru its local agency, of the
filing of adoption cases or the pendency thereof with respect to those cases already filed;
(2) to strictly COMPLY with the requirement in Article 33 of the aforesaid decree x x x
xxx
The Staff Assistant V (Social Worker) of the Regional Trial Courts, if any, shall coordinate with
the Ministry of Social Services and Development representatives in the preparation and
submittal of such case study. x x x
The error on the part of both respondent judge and social worker is thus all too
evident.Pursuant to Circular No. 12, the proper course that respondent judge should have
taken was to notify the DSWD at the outset about the commencement of Special Proceeding
No. 5830 so that the corresponding case study could have been accordingly conducted by said
department which undoubtedly has the necessary competence, more than that possessed by
the court social welfare officer, to make the proper recommendation. Moreover, respondent
judge should never have merely presumed that it was routinary for the social welfare officer
to coordinate with the DSWD regarding the adoption proceedings. It was his duty to exercise
caution and to see to it that such coordination was observed in the adoption proceedings,
together with all the other requirements of the law.
Adoption, after all, is in a large measure a legal device by which a better future may be
accorded an unfortunate child like Zhedell Bernardo Ibea in this case. Treading on equally
sensitive legal terrain, the social welfare officer concerned, respondent Elma P. Vedaa,
arrogated unto herself a matter that pertained exclusively to the DSWD, her task being to
coordinate with the DSWD in the preparation and submission of the relevant case study
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 20
reports, and not to make the same and recommend by herself the facts on which the court
was to act.
Effects of Adoption (Secs 7-18, 21-24, RA 8552)
Republic v. Hernandez (1996)
Art. 189 of the Family Code enumerates in no uncertain terms the legal effects of adoption:
(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters
and both shall acquire the reciprocal rights and obligations arising from the relationship of
parent and child, including the right of the adopted to use the surname of the adopters;
(2) The parental authority of the parents by nature over the adopted shall terminate and be
vested in the adopters, except that if the adopter is the spouse of the parent by nature of the
adopted, parental authority over the adopted shall be exercised jointly by both spouses; and
(3) The adopted shall remain an intestate heir of his parents and other blood relatives.
Clearly, the law allows the adoptee, as a matter of right and obligation, to bear the surname
of the adopter, upon issuance of the decree of adoption. It is the change of the
adoptees surname to follow that of the adopter which is the natural and necessary
consequence of a grant of adoption and must specifically be contained in the order of the
court, in fact, even if not prayed for by petitioner.
However, the given or proper name, also known as the first or Christian name, of the adoptee
must remain as it was originally registered in the civil register. The creation of an adoptive
relationship does not confer upon the adopter a license to change the adoptees registered
Christian or first name. The automatic change thereof, premised solely upon the adoption
thus granted, is beyond the purview of a decree of adoption. Neither is it a mere incident in
nor an adjunct of an adoption proceeding, such that a prayer therefor furtively inserted in a
petition for adoption, as in this case, cannot properly be granted.
The name of the adoptee as recorded in the civil register should be used in the adoption
proceedings in order to vest the court with jurisdiction to hear and determine the same, and
shall continue to be so used until the court orders otherwise. Changing the given or proper
name of a person as recorded in the civil register is a substantial change in ones official or legal
name and cannot be authorized without a judicial order. The purpose of the statutory
procedure authorizing a change of name is simply to have, wherever possible, a record of the
change, and in keeping with the object of the statute, a court to which the application is made
should normally make its decree recording such change).
The official name of a person whose birth is registered in the civil register is the name
appearing therein/ If a change in one’s name is desired, this can only be done by filing and
strictly complying with the substantive and procedural requirements for a special proceeding
for change of name under Rule 103 of the Rules of Court, wherein the sufficiency of the
reasons or grounds therefor can be threshed out and accordingly determined.
While the right of a natural parent to name the child is recognized, guaranteed and protected
under the law, the so-called right of an adoptive parent to re-name an adopted child by virtue
or as a consequence of adoption, even for the most noble intentions and moving
supplications, is unheard of in law and consequently cannot be favorably considered. To
repeat, the change of the surname of the adoptee as a result of the adoption and to follow
that of the adopter does not lawfully extend to or include the proper or given
name.Furthermore, factual realities and legal consequences, rather than sentimentality and
symbolisms, are what are of concern to the Court.
In re: Stephanie Garcia (2005)
Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365
of the Civil Code merely provides that an adopted child shall bear the surname of the adopter.
Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise
silent on the matter, thus:
"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the
adopters and both shall acquire the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of the adopted to use the surname of
the adopters;
xxx
However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law
Committees that drafted the Family Code recognized the Filipino custom of adding the
surname of the childs mother as his middle name. In the Minutes of the Joint Meeting of the
Civil Code and Family Law Committees, the members approved the suggestion that the
initial or surname of the mother should immediately precede the surname of the father.
In the case of an adopted child, the law provides that the adopted shall bear the surname of the
adopters. Again, it is silent whether he can use a middle name. What it only expressly allows,
as a matter of right and obligation, is for the adoptee to bear the surname of the adopter,
upon issuance of the decree of adoption.
One of the effects of adoption is that the adopted is deemed to be a legitimate child of the
adopter for all intents and purposes pursuant to Article 189 of the Family Code and Section
17, Article V of RA 8552.
Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to
all the rights provided by law to a legitimate child without discrimination of any kind,
including the right to bear the surname of her father and her mother, as discussed above.
This is consistent with the intention of the members of the Civil Code and Family Law
Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of
the mother should immediately precede the surname of the father.
Additionally, as aptly stated by both parties, Stephanie’s continued use of her mothers
surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that
Article 189(3) of the Family Code and Section 18, Article V of RA 8552 (law on adoption)
provide that the adoptee remains an intestate heir of his/her biological parent. Hence,
Stephanie can well assert or claim her hereditary rights from her natural mother in the future.
Rescission and Revocation (Secs 19-20, RA 8552)
Briones v. Miguel (2004)
Having been born outside a valid marriage, the minor is deemed an illegitimate child of
petitioner and Respondent Loreta. Article 176 of the Family Code of the Philippines explicitly
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 21
provides that illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code. This
is the rule regardless of whether the father admits paternity.
Parental authority over recognized natural children who were under the age of majority was
vested in the father or the mother recognizing them. If both acknowledge the child, authority
was to be exercised by the one to whom it was awarded by the courts; if it was awarded to
both, the rule as to legitimate children applied. In other words, in the latter case, parental
authority resided jointly in the father and the mother.
Now, there are only two classes of children -- legitimate (and those who, like the legally
adopted, have the rights of legitimate children) and illegitimate. All children conceived and
born outside a valid marriage are illegitimate, unless the law itself gives them legitimate
status.
Article 54 of the Code provides these exceptions: Children conceived or born before the
judgment of annulment or absolute nullity of the marriage under Article 36 has become final
and executory shall be considered legitimate. Children conceived or born of the subsequent
marriage under Article 53 shall likewise be legitimate.
Under Article 176 of the Family Code, all illegitimate children are generally placed under one
category, without any distinction between natural and spurious. The concept of natural child
is important only for purposes of legitimation. Without the subsequent marriage, a natural
child remains an illegitimate child.
the recognition of an illegitimate child by the father could be a ground for ordering the latter
to give support to, but not custody of, the child. The law explicitly confers to the mother sole
parental authority over an illegitimate child; it follows that only if she defaults can the father
assume custody and authority over the minor. Of course, the putative father may adopt his
own illegitimate child; n such a case, the child shall be considered a legitimate child of the
adoptive parent.
There is thus no question that Respondent Loreta, being the mother of and having sole
parental authority over the minor, is entitled to have custody of him. She has the right to keep
him in her company. She cannot be deprived of that right, and she may not even renounce or
transfer it except in the cases authorized by law.
Not to be ignored in Article 213 of the Family Code is the caveat that, generally, no child under
seven years of age shall be separated from the mother, except when the court finds cause to
order otherwise. Only the most compelling of reasons, such as the mother’s unfitness to
exercise sole parental authority, shall justify her deprivation of parental authority and the
award of custody to someone else. In the past, the following grounds have been considered
ample justification to deprive a mother of custody and parental authority: neglect or
abandonment, unemployment, immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity, and affliction with a communicable disease.
The Court sustained the visitorial right of an illegitimate father over his children in view of the
constitutionally protected inherent and natural right of parents over their children. Even when
the parents are estranged and their affection for each other is lost, their attachment to and
feeling for their offspring remain unchanged. Neither the law nor the courts allow this affinity
to suffer, absent any real, grave or imminent threat to the well-being of the child.
However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This provision
contemplates a situation in which the parents of the minor are married to each other, but are
separated either by virtue of a decree of legal separation or because they are living separately
de facto. In the present case, it has been established that petitioner and Respondent Loreta
were never married. Hence, that portion of the CA Decision allowing the child to choose which
parent to live with is deleted, but without disregarding the obligation of petitioner to support
the child.
Sy v. CA (2007)
In case of legal separation of the parents, the custody of the minor children shall be awarded
to the innocent spouse, unless otherwise directed by the court in the interest of the minor
children. But when the husband and wife are living separately and apart from each other,
without decree of the court, the court shall award the care, custody, and control of each child
as will be for his best interest, permitting the child to choose which parent he prefers to live
with if he is over seven (7) years of age unless the parent so chosen be unfit to take charge of
the child by reason of moral depravity, habitual drunkenness or poverty.
In all controversies regarding the custody of minors, the sole and foremost consideration is
the physical, educational, social and moral welfare of the child concerned, taking into account
the respective resources and social and moral situations of the contending parents. However,
the law favors the mother if she is a fit and proper person to have custody of her children so
that they may not only receive her attention, care, supervision but also have the advantage
and benefit of a mother’s love and devotion for which there is no substitute. Generally, the
love, solicitude and devotion of a mother cannot be replaced by another and are worth more
to a child of tender years than all other things combined.
Furthermore, the determination of whether the mother is fit or unfit to have custody over the
children is a matter well within the sound discretion of the trial court, and unless it is shown
that said discretion has been abused the selection will not be interfered with.
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 22
Inter-Country Adoption (RA No. 8043 and IRR)
Custody of Minors
RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS
IN RELATION TO CUSTODY OF MINORS
SECTION 1. Applicability. - This rule shall apply to petitions for custody of minors and writs
of habeas corpus in relation thereto.
The Rules of Court shall apply suppletorily.
Section 2. Petition for custody of minors; who may file.- A verified petition for the rightful
custody of a minor may be filed by any person claiming such right. The party against whom it
may be filed shall be designated as the respondent.
Section 3. Where to file petition. - The petition for custody of minors shall be filed with the
Family Court of the province or city where the petitioner resides or where the minor may be
found.
Section 4. Contents of petition. - The verified petition shall allege the following:
(a) The personal circumstances of the petitioner and of the respondent;
(b) The name, age and present whereabouts of the minor and his or her relationship to the
petitioner and the respondent;
(c) The material operative facts constituting deprivation of custody; and
(d) Such other matters which are relevant to the custody of the minor.
The verified petition shall be accompanied by a certificate against forum shopping, which the
petitioner must sign personally.
Section 5. Summons; personal service on respondent. - If the court is satisfied that the
petition is sufficient in form and substance, it shall direct the clerk of court to issue summons,
which shall be served together with a copy of the petition personally on the respondent.
Section 6. Motion to Dismiss. - A motion to dismiss the petition is not allowed except on the
ground of lack of jurisdiction over the subject matter or over the parties. Any other ground
that might warrant the dismissal of the petition may be raised as an affirmative defense in the
answer.
Section 7. Verified Answer. - The respondent shall file an answer to the petition, personally
verified by him, within five days after service of summons and a copy of the petition.
Section 8. Case study; duty of social worker. - Upon the filing of the verified answer or the
expiration of the period to file it, the court may order a social worker to make a case study of
the minor and the parties and to submit a report and recommendation to the court at least
three days before the scheduled pre-trial.
Section 9. Notice of mandatory pre-trial. - Within fifteen days after the filing of the answer
or the expiration of the period to file answer, the court shall issue an order: (1) fixing a date for
the pre-trial conference; (2) directing the parties to file and serve their respective pre-trial
briefs in such manner as shall ensure receipt thereof by the adverse party at least three days
before the date of pre-trial; and (3) requiring the respondent to present the minor before the
court.
The notice of its order shall be served separately on both the parties and their respective
counsels. The pre-trial is mandatory.
Section 10. Contents of pre-trial brief. - The pre-trial brief shall contain the following:
(a) A statement of the willingness of the parties to enter into agreements that may be allowed
by law, indicating its terms;
(b) A concise statement of their respective claims together with the applicable laws and
authorities;
(c) Admitted facts and proposed stipulations of facts;
(d) The disputed factual and legal issues;
(e) All the evidence to be presented, briefly stating or describing its nature and purpose;
(f) The number and names of the witnesses and their respective affidavits which shall serve as
the affiant's testimony on direct examination; and
(g) Such other matters as the court may require to be included in the pre-trial brief.
Failure to file the pre-trial brief or to comply with its required contents shall have the same
effect as failure to appear at the pre-trial.
Section 11. Effect of failure to appear at the pre-trial.-(a) If the petitioner fails to appear
personally at the pre-trial, the case shall be dismissed, unless his counsel or a duly authorized
representative appears in court and proves a valid excuse for the non-appearance of the
petitioner.
(b) If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall
be allowed to present his evidence ex parte. The court shall then render judgment on the basis
of the pleadings and the evidence thus presented.
Section 12. What may be done at pre-trial. - At the pre-trial, the parties may agree on the
custody of the minor. If the parties fail to agree, the court may refer the matter to a mediator
who shall have five days to effect an agreement between the parties. If the issue is not settled
through mediation, the court shall proceed with the pre-trial conference, on which occasion
it shall consider such other matters as may aid in the prompt disposition of the petition.
Section 13. Provisional order awarding custody. - After an answer has been filed or after
expiration of the period to file it, the court may issue a provisional order awarding custody of
the minor. As far as practicable, the following order of preference shall be observed in the
award of custody:
(a) Both parents jointly;
(b) Either parent, taking into account all relevant considerations, especially the choice of the
minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit;
(c) The grandparent, or if there are several grandparents, the grandparent chosen by the
minor over seven years of age and of sufficient discernment, unless the grandparent chosen
is unfit or disqualified;
(d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit or
disqualified;
(e) The actual custodian of the minor over twenty-one years of age, unless the former is unfit
or disqualified; or
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 23
(f) Any other person or institution the court may deem suitable to provide proper care and
guidance for the minor.
Section 14. Factors to consider in determining custody. - In awarding custody, the court shall
consider the best interests of the minor and shall give paramount consideration to his material
and moral welfare. The best interests of the minor refer to the totality of the circumstances
and conditions as are most congenial to the survival, protection, and feelings of security of
the minor encouraging to his physical, psychological and emotional development. It also
means the least detrimental available alternative for safeguarding the growth and
development of the minor.
The court shall also consider the following:
(a) Any extrajudicial agreement which the parties may have bound themselves to comply with
respecting the rights of the minor to maintain direct contact with the non custodial parent on
a regular basis, except when there is an existing threat or danger of physical, mental, sexual
or emotional violence which endangers the safety and best interests of the minor;
(b) The desire and ability of one parent to foster an open and loving relationship between the
minor and the other parent;
(c) The health, safety and welfare of the minor;
(d) Any history of child or spousal abuse by the person seeking custody or who has had any
filial relationship with the minor, including anyone courting the parent;
(e) The nature and frequency of contact with both parents;
(f) Habitual use of alcohol, dangerous drugs or regulated substances;
(g) Marital misconduct;
(h) The most suitable physical, emotional, spiritual, psychological and educational
environment for the holistic development and growth of the minor; and
(i) The preference of the minor over seven years of age and of sufficient discernment, unless
the parent chosen is unfit.
Section 15. Temporary visitation rights. - The court shall provide in its order awarding
provisional custody appropriate visitation rights to the non-custodial parent or parents, unless
the court finds said parent or parents unfit or disqualified.
The temporary custodian shall give the court and non custodial parent or parents at least five
days' notice of any plan to change the residence of the minor or take him out of his residence
for more than three days provided it does not prejudice the visitation rights of the non-
custodial parent or parents.
Section 16. Hold Departure Order. - The minor child subject of the petition shall not be
brought out of the country without prior order from the court while the petition is pending.
The court, motu proprio or upon application under oath, may issue ex parte a hold departure
order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the
departure of the minor from the Philippines without the permission of the court.
The Family Court issuing the hold departure order shall furnish the Department of Foreign
Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy
of the hold departure order within twenty-four hours from its issuance and through the fastest
available means of transmittal.
The hold departure order shall contain the following information:
(a) The complete name (including the middle name), the date and place of birth, the
nationality and the place of last residence of the person against whom a hold departure order
has been issued or whose departure from the country has been enjoined;
(b) The complete title and docket number of the case in which the hold departure order was
issued;
(c) The specific nature of the case;
(d) The date of the hold departure order; and
(e) A recent photograph, if available, of the party against whom a hold departure order has
been issued or whose departure from the country has been enjoined.
The court may recall the hold departure order motu proprio, or upon verified motion of any of
the parties after summary hearing, subject to such terms and conditions as may be necessary
for the best interests of the minor.
Section 17. Protection Order. - The court may issue a Protection Order requiring any person:
(a) To stay away from the home, school, business, or place of employment of the minor, other
parent or any other party, or from any other specific place designated by the court;
(b) To cease and desist from harassing, intimidating, or threatening such minor or the other
parent or any person to whom custody of the minor is awarded;
(c) To refrain from acts of commission or omission that create an unreasonable risk to the
health, safety, or welfare of the minor;
(d) To permit a parent, or a party entitled to visitation by a court order or a separation
agreement, to visit the minor at stated periods;
(e) To permit a designated party to enter the residence during a specified period of time in
order to take personal belongings not contested in a proceeding pending with the Family
Court; and
(f) To comply with such other orders as are necessary for the protection of the minor.
Section 18. Judgment. - After trial, the court shall render judgment awarding the custody of
the minor to the proper party considering the best interests of the minor.
If it appears that both parties are unfit to have the care and custody of the minor, the court
may designate either the paternal or maternal grandparent of the minor, or his oldest brother
or sister, or any reputable person to take charge of such minor, or commit him to any suitable
home for children.
In its judgment, the court may order either or both parents to give an amount necessary for
the support, maintenance and education of the minor, irrespective of who may be its
custodian. In determining the amount of support, the court may consider the following
factors: (1) the financial resources of the custodial and non-custodial parent and those of the
minor; (2) the physical and emotional health, special needs, and aptitude of the minor; (3) the
standard of living the minor has been accustomed to; and (4) the non-monetary contributions
that the parents would make toward the care and well-being of the minor.
The court may also issue any order that is just and reasonable permitting the parent who is
deprived of the care and custody of the minor to visit or have temporary custody.
Section 19. Appeal. - No appeal from the decision shall be allowed unless the appellant has
filed a motion for reconsideration or new trial within fifteen days from notice of judgment.
An aggrieved party may appeal from the decision by filing a Notice of Appeal within fifteen
days from notice of the denial of the motion for reconsideration or new trial and serving a
copy thereof on the adverse parties.
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 24

Section 20. Petition for writ of habeas corpus. - A verified petition for a writ of habeas corpus
involving custody of minors shall be filed with the Family Court. The writ shall be enforceable
within its judicial region to which the Family Court belongs.
However, the petition may be filed with the regular court in the absence of the presiding judge
of the Family Court, provided, however, that the regular court shall refer the case to the
Family Court as soon as its presiding judge returns to duty.
The petition may also be filed with the appropriate regular courts in places where there are no
Family Courts.
The writ issued by the Family Court or the regular court shall be enforceable in the judicial
region where they belong.
The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of
its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The
writ may be made returnable to a Family Court or to any regular court within the region where
the petitioner resides or where the minor may be found for hearing and decision on the merits.
Upon return of the writ, the court shall decide the issue on custody of minors. The appellate
court, or the member thereof, issuing the writ shall be furnished a copy of the decision.
Section 21. Confidentiality of proceedings. - The hearings on custody of minors may, at the
discretion of the court, be closed to the public and the records of the case shall not be released
to non-parties without its approval.
Section 22. Effectivity. - This Rule shall take effect on May 15, 2003 following its publication
in a newspaper of general circulation not later than April 30, 2003.
RULE ON PROVISIONAL ORDERS
Section 1. When Issued, - Upon receipt of a verified petition for declaration of absolute nullity
of void marriage or for annulment of voidable marriage, or for legal separation, and at any
time during the proceeding, the court, motu proprio or upon application under oath of any of
the parties, guardian or designated custodian, may issue provisional orders and protection
orders with or without a hearing. These orders may be enforced immediately, with or without
a bond, and for such period and under such terms" and conditions as the court may deem
necessary.
Section 4. Child Custody. - In determining the right party or person to whom the custody of
the child of the parties may be awarded pending the petition, the court shall consider the best
interests of the child and shall give paramount consideration to the material and moral
welfare of the child.
The court may likewise consider the following factors: (a) the agreement of the parties;
(b) the desire and ability of each parent to foster an open and loving relationship between the
child and the other parent; (c) the child's health, safety, and welfare; (d) any history of child or
spousal abase by the person seeking custody or who has had any filial relationship with the
child, including anyone courting the parent; (e) the nature and frequency of contact with both
parents; (f) habitual use of alcohol or regulated substances; (g) marital misconduct; (h) the
most suitable physical, emotional, spiritual, psychological and educational environment; and
(i) the preference of the child, if over seven years of age and of sufficient discernment, unless
the parent chosen is unfit.
The court may award provisional custody in the following order of preference: (1) to both
parents jointly; (2) to either parent taking into account all relevant considerations under the
foregoing paragraph, especially the choice of the child over seven years of age, unless the
parent chosen is unfit; (3} to the surviving grandparent, or if there are several of them, to the
grandparent chosen by the child over seven years of age and of sufficient discernment, unless
the grandparent is unfit or disqualified; (4) to the eldest brother or sister over twenty-one
years of age, unless he or she is unfit or disqualified; (5) to the child's actual custodian over
twenty-one years of age, unless unfit or disqualified; or (6) to any other person deemed by the
court suitable to provide proper care and guidance for the child.
The custodian temporarily designated by the" court shall give the court and the parents
five days notice of any plan to change the residence of the child or take him out of his
residence for more than three days provided it does not prejudice the visitation rights of the
parents.
Section 5. Visitation Rights. - Appropriate visitation rights shall be provided to the parent who
is not awarded provisional custody unless found unfit or disqualified by the court. .
Section 6. Hold Departure Order. - Pending resolution of the petition, no child of the parties
shall be brought out of the country without prior order from the court.
The court, motu proprio or upon application under oath, may issue ex-parte a hold
departure order, addressed to the Bureau of Immigration and Deportation, directing it not to
allow the departure of the child from the Philippines without the permission of the court.
The Family Court issuing the hold departure order shall furnish the Department of Foreign
Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy
of the hold departure order issued within twenty-four hours from the time of its issuance and
through the fastest available means of transmittal.
The hold-departure order shall contain the following information:
(a) the complete name (including the middle name), the date and place of birth, and the place
of last residence of the person against whom a hold-departure order has been issued or whose
departure from the country has been enjoined;
(b) the complete title and docket number of the case in which the hold departure was issued;
(c) the specific nature of the case; and
(d) the date of the hold-departure order.
If available, a recent photograph of the person against whom a hold-departure order has
been issued or whose departure from the country has been enjoined should also be included.
The court may recall the order. motu proprio or upon verified motion of any of the parties
after summary hearing, subject to such terms and conditions as may be necessary for the best
interests of the child.
RULE ON COMMITMENT OF CHILDREN
Section 4. –
(a) Who may file. - The Secretary of the Department or his authorized representative or any
duly licensed child-placement or child-caring agency having knowledge of a child who
appears to be dependent, abandoned or neglected, may file a verified petition for involuntary
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 25
commitment of said child to the care of any duly licensed child-placement or child-caring
agency or individual.
(b) Venue. - The petition shall be filed with the Family Court of the province or city in which
the parent or guardian resides or where the child is found.
(c) Contents of Verified Petition. - The petition must state:
The names of the parents or guardian and their place of residence. If the child's parents are
unknown, petitioner must allege that diligent efforts have been exerted to locate them. It said
parents are deceased, petitioner shall attach a certified true copy of their death certificate;
The facts showing that the child is dependent, abandoned, or neglected;
The facts showing who has custody of the child at the time of the filing of the petition; and
The name, address and written consent of the Department or duly licensed child-placement
or child-caring agency or individual to whose care the commitment of the child is sought to
be entrusted.
(d) Summons; Court to Set Time for Hearing. - If the court is satisfied that the petition is
sufficient in form and substance, it snail direct the clerk of court to immediately issue
summons which shall be served together with a copy of the petition and a notice of hearing,
upon the parents or guardian of the child and the office of the public prosecutor not less than
five (5) days before the date of the hearing. The office of the public prosecutor shall be
directed to immediately transmit the summons to the prosecutor assigned to the Family
Court concerned.
If it appears from the petition that both parents of the child are dead or that neither parent
can be found in the province or city where the court is located and the child has no guardian
residing therein, summons may not be issued and the court shall thereupon appoint a
guardian ad litem pursuant to Sub-section (f) below and proceed with the hearing of the case
with due notice to the provincial or city prosecutor.
(e) Social Worker. - After the court sets the petition for hearing in accordance with Sub-
section (d) above, it shall direct the social worker to submit, before the hearing, a case study
report of the child to aid it in evaluating whether said child should be committed to the care
of the Department or any duly licensed child-placement or child-caring agency or individual.
The report shall bear the signature of the social worker on every page.
(f) Guardian Ad Litem of Child. - If neither of the parents nor the guardian of the child can be
located or does not appear in court despite due notice, or if the court finds them incompetent
to protect the best interests of the child, it shall be the duty of the court to appoint a suitable
person as guardian ad litem to represent the child. In making the appointment, the court shall
consider the background of the guardian ad litem and his familiarity with the judicial process,
social service programs and child development. A member of the Philippine Bar may be
appointed guardian ad litem.
(g) Child's Right to Counsel - The court, upon request of the child capable of forming his own
views or upon request of his guardian ad litem, shall appoint a lawyer to represent him in the
proceedings.
(h) Duty of Public Prosecutor. - The provincial or "city prosecutor shall appear for the State
and ascertain if there has been due notice to all parties concerned and that there is
justification for the declaration of dependency, abandonment or neglect.
(i) Hearing. - The court shall direct the person or agency which has custody of the child to bring
the latter to the court on the date of the hearing of the petition and shall ascertain the facts
and determine whether the child is dependent, abandoned, or neglected, and if so, the-cause
and circumstances of such condition.
(j) Judgment. - If, after the hearing, the court shall find the child to be dependent, abandoned,
or neglected, it shall render judgment committing him to the care and custody of the
Department or any duly licensed child-placement or child-caring agency or individual until he
reaches the age of eighteen (18), The judgment shall likewise make proper provisions for the
custody of the property or money belonging to the committed child.
If the child is committed to the Department, it shall notify the court within thirty (30) days
from the order of commitment, the name and address of the duly licensed and accredited
child-placement or child-caring agency or individual where the child shall be placed.
However, if the court finds that the abandonment or neglect of the child may be remedied,
the child may be allowed to stay in his own home under the care and control of his parents or
guardian, subject to supervision and direction of the Department.
(k) Visitation or Inspection. - Any duly licensed child-placement or child-caring agency or
individual to whom a child has been committed by the court shall be subject to visitation or
inspection by a representative of the court or of the Department, as the case may be or of
both, to determine whether the welfare and interests of the child are being served,
(l) Report of Person or Institution. - Any duly licensed child-placement or child-caring agency
or individual to whom a child has been committed by judicial order may at any time be
required by the court to submit a report, containing all necessary information for determining
whether the welfare of the child is being served.
(m) Temporary Custody of Child. - The duly licensed child-placement or child-caring agency
or individual to whom a child has been committed may file a verified motion with the court
which granted the petition for involuntary commitment of a child to place him in the care of
any suitable person, upon the latter's request, for a period not exceeding one month at a time.
The court may order the social worker to submit a case study report to aid it in evaluating
whether such temporary custody shall be for the best interests of the child. The period of
temporary custody of the child may be extended by the court for a period not exceeding one
month at a time upon motion of the duly licensed child-placement or child-caring agency or
individual to which the child has been committed.
The court, motu proprio, or upon request of the child assisted by his guardian ad litem, or at
the instance of the agency or person to whom the child was committed, after due notice and
hearing, shall discontinue the temporary custody of the child if it appears that he is not being
given proper care.
After one month from the date temporary custody of the child was given to another suitable
person, the agency or individual shall submit to the court a verified report on whether the
temporary custody of the child has promoted his best interests.
Alegre & Bañaria | Judge Malagar | SpecPro Midterms Reviewer 26
(n) Change of Custody. - If the child is committed to the Department, it shall have the
authority to change the custody o! a child it had placed with any duly licensed child-placement
or child-caring agency or individual if it appears that such change is for the best interests of
the child. The Department shall notify the court of any change in custody of the child,
When conflicting interests arise among child-placement or child-caring agencies, the court
which granted the involuntary commitment of the child, upon motion of the Department or
any of the agencies concerned, shall order the change of commitment of the child.
(o) Removal of Custody. - A motion to remove custody of a child may be filed by an authorized
representative of the Department with knowledge of the facts against a child-placement or
child-caring agency or individual to whose custody a child has been committed by the court
on the ground of neglect of such child as defined in Section 3 (e) of this Rule. The court shall
set the motion for hearing with notice to the public prosecutor and the court-designated
social worker. If the court finds after hearing that the allegations of the motion have been
established and that it is for the best interests and welfare of the child, the court shall issue an
order removing him from the custody of the person or agency, as the case may be, and
committing him to the custody of another duly licensed child-placement or child-caring
agency or individual.
In the same proceeding, the court may suspend or revoke the license of the agency or
individual found guilty of such neglect depending upon the gravity or frequency of the
offense.
(p) Restoration of Parental Authority After Involuntary Commitment. -
(i) Who may file; Ground. - The parents or guardian of a child committed to the care of a
person, agency or institution by judicial order may file a verified motion for the restoration of
his rights over the child with the court which granted the involuntary commit¬ment on the
ground that he is now able to take proper care and custody of said child, provided, however,
that the child has not yet been adopted.
(ii) Notice of Hearing. - The court shall fix the time and date for the hearing of the motion,
which shall not be earlier than thirty (30) days nor later than sixty (60) days from the date of
the filing of said motion and cause notice of the hearing to be sent to the person, agency or
institution to which the child has been committed, the public prosecutor and the court-
designated social worker, at least five (5) days before the date of hearing.
(iii) Hearing. - At the hearing, any person may be allowed to intervene at the discretion of the
court to contest the right to the relief demanded. Witnesses may be called and examined by
the parties or by the court motu proprio.
(iv) Resolution. - If it is found that the cause for the commitment of the child no longer exists
and that the movant is already able to take proper care and custody of the child, the court,
after taking into consideration the best interests and the welfare of the child, shall issue a
resolution terminating the parental authority of the person, agency or institution to whom
the child was committed by judicial order and restoring parental authority to the movant,
q) Jurisdiction for Prosecution of Punishable Acts. - The Family Court which granted the
involuntary commitment shall have jurisdiction over the prosecution of a child who left
without prior permission from the person or institution to which he has been judicially
committed or the person under whose custody he has been judicially committed in
accordance with Sub-section (m) of Section 4 of this Rule. It shall likewise have jurisdiction
over the person who induced the child to leave such person or institution, except in case of
actual or imminent grave physical or moral danger to the child. The Family Court which
granted the involuntary commitment shall also have jurisdiction over the prosecution of
parents or guardians of the child who may be held liable under Articles 59 and 60 of P.D. No.
603 and Sections 9, 10 and 31 of R.A. No. 7610.
Section 5. Voluntary Commitment of a Child to an Institution or Individual. - The parent or
guardian of a dependent, abandoned or neglected child may voluntarily commit him to the
Department or any duly licensed child- placement or child-caring agency or individual subject
to the rules of the Department. However, no child shall be committed unless he is surrendered
in writing by his parents or guardian stating such voluntary commitment and specifically
naming the office, agency, or individual to whose custody the child is to be committed. Such
written instrument should be notarized and signed in the presence of an authorized
representative of the Department after counseling and other services have been made
available to encourage the child's parents to keep the child.
(a) Petition for Removal of Custody. -
(i) Who may file; Ground. - The parents or guardian who voluntarily committed the child, or in
their absence or failure, any person with knowledge of the facts, may file a verified petition to
remove custody of the child against the child-placement or child-caring agency or individual
to whose custody the child has been voluntarily committed on the ground of neglect of such
child as defined in Section 3 (e) of this Rule. A child may also be removed from the custody of
the child-placement or child-caring agency or individual on the ground that the voluntary
commitment of the child was unjustified.
(ii) Venue. - The petition shall be filed with the Family Court of the province or city where the
child-placement or child-caring agency to which the child has been voluntarily committed is
located or where the child may be found.
Contents of Verified Petition - The petition must state:
The name and address of the child-placement or child-caring agency or individual to whose
custody the child has been voluntarily committed;
The facts showing that the child has been neglected by the agency or in cases where the
voluntary commitment was unjustified, that the parents of the child are actually capable of
taking care and custody of the child;
The name, address and written consent of the duly licensed child-placement or child-caring
agency or individual to whose care the child may be transferred.
The facts showing that petitioner has exhausted the administrative remedies available to him,
(iv) Notice of Hearing. - If the petition is sufficient in form and substance, the court shall set
the same for hearing with notice to the Department, the public prosecutor, the court-
designated social worker, the agency or individual to whom the child has been committed and
in appropriate cases, the parents of the child.
(v) Judgment. - If after hearing the court finds that the allegations of the petition have been
established and that it is for the best interests and welfare of the child, it shall issue an order
removing the child from the custody of the person or agency concerned, and committing him
to the custody of another duly licensed child-placement or child-caring agency or individual.
The court, in the same proceeding may, after hearing the comment or recommendation of
the Department, suspend or revoke the license of the agency or individual found guilty of such
neglect depending upon the gravity or frequency of the offense.
(b) Restoration of Parental Authority After Voluntary Commitment. - The restoration of rights
of the parent or guardian over the child who has been voluntarily committed shall be governed
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by the rules of the Department, provided, however, that the petition for restoration is filed
within six (6) months from the date of voluntary commitment. In case the Department refuses
to grant legal custody and parental authority to the parent or guardian over the child who has
been voluntarily committed to an agency or individual, the parent or guardian may file a
petition in court for restoration of parental authority in accordance with Section 4 (p) of this
Rule.
(c) Jurisdiction for Prosecution of Punishable Acts. - The Family Court of the place where the
child may be found or where the duly licensed child-placement or child-caring agency or
individual is located shall have jurisdiction over the prosecution of a child who left without
prior permission from the person or institution to which he has been voluntarily committed.
It shall likewise have jurisdiction over the person who induced the child to leave such person
or institution, except in case of grave actual or imminent physical or moral danger, to the
child. The same Family Court shall also have jurisdiction over the prosecution of parents or
guardians of the child who may be held liable under Articles 59 and 60 of P.O. No, 603 and
Sections 9, 10 and 31 of R.A. No. 7610.
Section 6. Petition for Commitment of a Disabled Child. -
(a) Who may file. - Where a child appears to be mentally retarded physically handicapped,
emotionally disturbed, mentally ill, with cerebral palsy or with similar afflictions and needs
institutional care but his parents or guardians are opposed thereto, the Department, or any
duly licensed child-placement or child-caring agency or individual may file a verified petition
for commitment of the said child to any reputable institution providing care, training and
rehabilitation for disabled children.
The parents or guardian of the child may file a similar petition in case no immediate placement
can be arranged for the disabled child when his welfare and interests are at stake,
(b) Venue. - The petition for commitment of a disabled child shall be filed with the Family
Court of the place where the parent or guardian resides or where the child is found.
The order shall also direct the sheriff or any other officer of the court to produce, if necessary,
the alleged disabled child on the date of the hearing.
(e) Hearing and Judgment. - If the court finds that the allegations of the petition have been
established and that institutional care of the child is for his best interests or the public welfare
and that his parents, or guardian or relatives are unable for any reason whatsoever to take
proper care of him, the court shall order his commitment to the proper institution for disabled
children. The court shall likewise make proper provisions for the custody of the property or
money belonging to the committed child.
The expense of maintaining a disabled child in the institution to which he has been committed
shall be borne primarily by the parents or guardian and secondarily, by such disabled child, if
he has property of his own.
In all cases where the expenses for the maintenance of the disabled child cannot be paid in
accordance with the immediately preceding paragraph, the Department shall bear the
expenses, or such part thereof as may remain unpaid.
The court shall furnish the institution to which the child has been committed with a copy of
its judgment, together with ail the reports and other data pertinent to the case.
(f) Discharge of Judicially Committed Disabled Child. - Upon motion of the parent, guardian
or institution to which the child has been judicially committed under this Rule, the court, after
hearing, shall order the discharge of such child if it is established and certified by the
Department that:
(1) He is no longer a danger to himself and the community;
(2) He has been sufficiently rehabilitated from his physical handicap or if of working age, is
already fit to engage in gainful occupation; or
(3) He has been sufficiently relieved of his psychological, mental and emotional problems and
is ready to assume normal social relations,

(c) Contents of Verified Petition. - The petition for commitment must stale the following:
(1) The facts showing that the child appears to be mentally retarded, physically handicapped,
emotionally disturbed, mentally ill, with cerebral 'palsy or with similar afflictions and needs
institutional care;
(2) The name of the parents and their residence, if known, or if the child has no living parent,
the name and residence of the guardian, if any; and
(3) The fact that the parents or guardian or any duty licensed disabled child-placement or
child-caring agency, as the case may be, has opposed the commitment of such child;
(4) The name and written conformity of the institution where the child is to be committed.
(5) An estimate of the costs and other expenses of maintaining the child in the institution.
The verified petition shall be sufficient if based upon the personal knowledge of the petitioner.

(d) Order of Hearing; Notice. - If the petition filed is sufficient in form and substance, the court,
by an order reciting the purpose of the petition, shall fix the date of the hearing thereof, and
a copy of such order shall be served on the child alleged to be mentally retarded, physically
handicapped, emotionally disturbed, mentally ill, with cerebral palsy or with similar afflictions
and on the person having charge of him or any of his relatives residing in the province or city
as the court may deem proper.
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