DAM - Special Proceedings

NOTES OF THE
DARK ART MASTER

SPECIAL PROCEEDINGS
Administrator: Princess KT
Special Proceedings
Determination of who are the legal heirs must be made in special proceedings.
The declaration of heirship must be made in an administration proceeding, and not in

an independent civil action. (Litam, etc., et. al. v. Rivera)
The trial court in the civil case declared that the spouse was the only heir.
This Court ruled that such declaration is improper, it being within the exclusive
competence of the court in Special Proceedings. (Solivio v. Court of Appeals)
Trial courts cannot make a declaration of heirship in the civil action for the reason
that such a declaration can only be made in a special proceeding.
A civil action is defined as one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
A special proceeding is a remedy by which a party seeks to establish a status, a right,

or a particular fact.
The declaration of heirship can be made only in a special proceeding; petitioners are
seeking the establishment of a status or right.
The case should be dismissed for lack of cause of action.
If the suit is not brought in the name of or against the real party in interest, a motion
to dismiss may be filed on the ground that the complaint states no cause of action.
(Travel Wide Associated Sales (Phils.), Inc. v. Court of Appeals)
Special Proceeding and Summary Proceeding under Article 41 of the Family

Code
Republic v. Court of Appeals, 458 SCRA 200 (2005)
The principal issue is whether a petition for declaration of the presumptive death is in
the nature of a special or summary proceeding.
A civil action is one by which a party sues another for the enforcement or protection
of a right, or the prevention of redress of a wrong. (Sec. 3, Rule 1, ROC)
A special proceeding is a remedy by which a party seeks to establish a status, a

right or a particular fact. (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R. No.
124320, March 2, 1999)
Allegations:
The instant petition is in the nature of a special proceeding and not an ordinary
action.
The petition merely seeks for a declaration of the presumptive death.
It does not seek the enforcement or protection of a right or the prevention or redress of
a wrong.
It does not involve a demand of right or a cause of action that can be enforced against
any person.
For special proceedings, Notice of Appeal and Record on Appeal must be filed
SPECIAL PROCEEDINGS FOCUS NOTE |

Section 1. Subject matter of special proceedings. Rules of special proceedings are
provided for in the following:
a. Settlement of estate of deceased persons;
b. Escheat;
c. Guardianship and custody of children;
d. Trustees;
e. Adoption;
f. Rescission and revocation of adoption;
g. Hospitalization of insane persons;
h. Habeas corpus;
i. Change of name;
j. Voluntary dissolution of corporations;
k. Judicial approval of voluntary recognition of minor natural children;
l. Constitution of family home;
m. Declaration of absence and death;
n. Cancellation or correction of entries in the civil registry.
Petitioner insists that declaration of presumptive death under Article 41 of the Family
Code is not a special proceeding.
For the purpose of subsequent marriage, the spouses present must institute
a summary proceeding for the declaration of presumptive death of the absentee.
(Article 41, Family Code)
Article 41, par. 2 of the Family Code provides that for the purpose of contracting a
valid subsequent marriage the spouse present must institute summary
proceedings for the declaration of presumptive death of the absentee spouse.
By the citation of Article 41, it is gathered that the petition to have her absent spouse
declared presumptively dead had for its purpose her desire to contract a valid
subsequent marriage.
Ergo, the petition for that purpose is a summary proceeding.
In special proceeding, the filing of a Record on Appeal is necessary.
In summary ordinary proceeding, filing of a Notice of Appeal from the trial courts order
sufficed.
Jurisdiction of Probate Court
GRACE F. MUNSAYAC-DE VILLA, LILY F. MUNSAYAC-SUNGA and ROY MUNSAYAC

v. COURT OF APPEALS; Judge ANTONIO C. REYES; NORA F. MUNSAYAC-VISPERAS
(Represented by Her Heirs); and GELACIO F. MUNSAYAC JR.
G.R. No. 148597. October 24, 2003; PANGANIBAN, J.:
The long-standing principle is that a probate court exercises limited jurisdiction.
The determination of whether a property should be included in the inventory is within

its probate jurisdiction.
Such determination is only provisional -- not conclusive -- in character and subject to

the final decision in a separate action that may be instituted by the parties.
Questions on an advance made by the deceased to any heir may be heard and
determined by the court that has jurisdiction over the estate proceedings.
The final order of the court shall be binding on the person raising the questions and
on the heirs.
GR: A probate court may not decide a question of title or ownership.

XPN: It may do so if:
1. The interested parties are all heirs;
2. The question is one of collation or advancement; or
3. The parties consent to its assumption of jurisdiction and the rights of third
parties are not impaired.
IN THE MATTER OF THE INTESTATE ESTATE OF DECEASED ISMAEL REYES, THE

HEIRS OF OSCAR R. REYES v. CESAR R. REYES
G.R. No. 139587. November 22, 2000; GONZAGA-REYES, J.:
Petitioners argue that a probate court’s jurisdiction is not limited to the determination
of who the heirs are and what shares are due them as regards the estate.
Petitioners argue that probate court has the power and competence to determine
whether a property should be excluded from the inventory of the estate or not.
The jurisdiction of the probate court merely relates to:

1. Matters relating settlement of the estate;
2. The probate of wills; and
3. Appointment and removal of administrators, executors, guardians and trustees.
The question of ownership is as a rule, an extraneous matter which the Probate

Court cannot resolve with finality.
In determining whether a property should or should not be included in the inventory,

the probate court may pass upon the title thereto.
But such determination is provisional, not conclusive, and is subject to the final
decision in a separate action to resolve title.
Petitioners claim the probate court has jurisdiction to resolve the issue of ownership
when the parties interested are all heirs of the deceased and they submitted the
question of title to the property, without prejudice to third persons.
Rule: RTC acting as a probate court exercises limited jurisdiction.
It has no power to take cognizance of and determine the issue of title to property
claimed by a third person adversely to the decedent.
XPN:
1. The claimant and parties having legal interest in the property consent, expressly or
impliedly, to the submission of the question to the Probate Court for adjudgment;
and
2. The interests of third persons are not prejudiced.
SINFOROSO PASCUAL v. PONCIANO S. PASCUAL, ET AL.,

G.R. No. L-48140; May 4, 1942 ; EN BANC; MORAN, J.:
The general rule is that questions as to title to property cannot be passed upon in
testate proceedings. (Bauermann vs. Casas, 10 Phil., 386; Devesa vs.Arbes, 13 Phil.,
273; Guzman vs. Anog, 37 Phil., 61; Lunsod vs. Ortega, 46 Phil., 664;
Adapon vs. Maralit)
XPN: When the parties interested are all heirs claiming title, questions as to title may
properly be brought in the testate or intestate proceedings.
This procedure is optional to the parties concerned.

CONVEYANCE OF PROPERTY CONTRACTED BY DECEDENT IN HIS LIFETIME
Liu v. Loy, 405 SCRA 316 (2003)
The Rules of Court specifically requires notice to all interested parties in any
application for court approval to convey property contracted by the decedent in his
lifetime.
The failure to notify the administratrix and other interested persons rendered the sale
void.
Probate court can authorize the administrator to convey property only after notice
given.
No conveyance shall be authorized until notice of the application for that purpose has
been given to all persons interested.
It is mandatory that notice be served on the heirs and other interested persons of the
application for approval of any conveyance, absence of such, the order authorizing the
conveyance, as well as the conveyance itself, is completely void.
In this case, the administratrix, the wife of the deceased, was not notified of the
motion and hearing to approve the sale of the lots.
The issuance of new titles did not vest title because the conveyance itself was
completely void.
The consequences for the failure to notify the administratrix and other interested
parties must be borne by the buyers.
Necessity of court approval of sales
An heir can sell his interest in the estate of the decedent, or even his interest in
specific properties of the estate.
However, for such disposition to take effect against third parties, the court must
approve to protect the rights of creditors of the estate.
Deceased can transfer only the net estate.
In Opulencia v. Court of Appeals, the seller-heir resisted on the ground that there was
no approval of the contract by the probate court.
The Court ruled that the contract to sell was binding between the parties, but subject
to the outcome of the testate proceedings.
The sale of the lot needs the approval of the probate court.
Sale of an immovable property belonging to an estate of a decedent, in a special

proceeding, should be made with the approval of the probate court.
As a rule, no sale or transfer of registered land shall be made by an executor or by an

administrator for the payment of debts or for any other purpose, except upon order of
a court.
Clearly, both the law and jurisprudence expressly require court approval before any
sale of estate property by an executor or administrator can take effect.

In Dolar v. Sundiam an heir sold parcels of land part of the estate of the decedent. The
probate court approved the sale. Thereafter, the probate court authorized the
administrator to sell again the same parcels of land to another.
The Court ruled that the probate court had already lost jurisdiction to authorize the
further sale of the parcels of land to another person because such property no longer
formed part of the estate of the decedent.
DETERMINATION OF THE TITLE OF THE PROPERTIES PART OF THE ESTATE
Pacioles v. Chuatoco-Ching, 466 SCRA 90 (2005)
May a trial court, acting as an intestate court, hear and pass upon questions of
ownership involving properties claimed to be part of the decedents estate?
GR: Jurisdiction of the trial court either as an intestate or a probate court relates
only to matters having to do with the settlement of the estate and probate of will of
deceased persons but does not extend to the determination of questions of ownership
that arise during the proceedings.
Rationale: Such court exercises special and limited jurisdiction.
XPN: An intestate or a probate court may hear and pass upon questions of ownership
when its purpose is to determine whether or not a property should be included in the
inventory.
The adjudication is merely incidental and provisional.
In Pastor, Jr. vs. Court of Appeals, we held, as a rule, that question of ownership is an
extraneous matter which the probate court cannot resolve with finality.
Thus, whether a certain property should or should not be included in the inventory of
estate properties, the probate court may pass upon the title thereto, but such is
provisional, not conclusive; subject to the final decision in a separate action to
resolve title.
The key consideration is that the purpose of the intestate or probate court in hearing
and passing upon questions of ownership is merely to determine whether or not a
property should be included in the inventory.
Obviously, respondent purpose here was not to know whether properties should be
included in the inventory.
She wanted something else, i.e., to secure from the intestate court a final
determination of her claim of ownership.
Although, she made it appear that her only intent was to determine the accuracy of
petitioners inventory, however, a close review of the facts and the pleadings reveals her
real intention.
Clearly, the RTC, acting as an intestate court, had overstepped its jurisdiction.
When a question arises as to ownership of property alleged to be a part of the estate of

the deceased person, but claimed by some other person to be his, not by virtue of any
right of inheritance from the deceased but by title adverse to that of the estate, such
question cannot be determined in the course of an intestate or probate proceedings.
The case must be submitted to the court in the exercise of its general jurisdiction.
Probate court cannot adjudicate title to properties claimed to be a part of the estate
and which are claimed to belong to outside parties.

All the court could do is to determine its inclusion in the inventory to be administered
by the administrator.
If there is dispute 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.
Recourse is to file a separate action with a court of general jurisdiction.
The intestate court is not the appropriate forum for the resolution of her adverse claim
of ownership over properties.
CLAIMS AGAINST AN ESTATE OF A PARTNER
Primelink Properties and Development Corp. v. Lazatin-Magat, 493 SCRA 444 (2006)
Where a partner has become insolvent or his estate is insolvent, the claims against his
separate property shall rank in the following order:
1. Those owing to separate creditors;
2. Those owing to partnership creditors;
3. Those owing to partners by way of contribution.
CLAIMS FOR LEASE RENTALS AFTER THE DEATH
Chan v. Court of Appeals, 424 SCRA 127 (2004)
Petitioners denied owing private respondent the rentals claimed.
They alleged that the late original lessee had paid all the rentals due.
Private respondent pointed to their (principal-original-lessee and agent) continuous

dealings with him relating to the lease even after death the original lessee.
The court found that the unpaid rentals sought to be claimed were for the periods
after death of the original lessee.
As the unpaid rentals did not accrue during his lifetime, his estate might not be held
liable for them.
SALE OF REAL PROPERTY SHOULD HAVE THE CONSENT OF THE PROBATE

COURT
LEO C. ROMERO and DAVID AMANDO C. ROMERO v. HON. COURT OF APPEALS,

AURORA C. ROMERO and VITTORIO C. ROMERO; G.R. No. 188921; April 18, 2012;
SERENO, J.:
Petitioners contend that the submission of the issues to the probate court is merely
optional, and not mandatory upon them.
They argue, they still have the right to bring these issues in a separate civil action, if
they so choose.
They argue further that Section 3, Rule 87 of the Revised Rules of Court is not
applicable to the present case.
Heir may not sue until share assigned. When an executor assumes the trust, no action
to recover the title or possession of lands or for damages done to such lands shall be
maintained against him by an heir until there is an order of the court assigning such
lands to such heir or devisee or until the time allowed for paying debts has expired.
(Sec. 3, Rule 87)
Petitioners believe that the above rule is subject to certain exceptions.

They invoke the doctrine that while heirs cannot sue for the recovery of property of the
estate represented by an administrator, these heirs may maintain such action if:
1. The administrator is unwilling to bring the suit; or
2. Has allegedly participated in the act complained of.
Section 3, Rule 87 bars petitioners from filing the present action.
Nothing proves that administrator defied the orders of the probate court or entered
into sale agreements in violation of her trust.
Acts of the administrator of the estate are subject to the sole jurisdiction of the
probate court.
It is within the jurisdiction of the probate court to approve the sale of properties of a
deceased person by his prospective heirs before final adjudication. (Acebedo v.
Abesamis)
It is error to say that this matter should be threshed out in a separate action.
The Rules of Court do not specifically state that the sale of an immovable property
belonging to an estate should be made with the approval of the probate court.
However, this authority is necessarily included in its capacity as a probate court.
Petitioners do not pose issues pertaining to title or ownership.
They are questioning the validity of the sales made by the administrator, an issue that
can only be properly threshed out by the probate court.
Probate court has the power to rescind or nullify the disposition of a property
under administration that was effected without its authority.
That petitioner has the prerogative of choosing where to file their action for
nullification whether with the probate court or the regular court is erroneous.
The following are within the jurisdiction of the probate court:

1. Approve the sale of properties of a deceased person by his prospective heirs
before final adjudication;
2. Determine who are the heirs of the decedent;
3. Recognition of a natural child;
4. Determine the status of a woman claiming to be the legal wife of the decedent;
5. Legality of disinheritance of an heir by the testator; and
6. Pass upon the validity of a waiver of hereditary rights. (Marcos, II v. Court of
Appeals)
The validity of the sales can only be determined by the probate court.
The probate court is empowered to identify the nature of the property, and has
jurisdiction over the administrator’s actions and dispositions.
The Court even adjudged petitioners guilty of forum-shopping for filing a separate civil
action despite the pendency of the said petitioners own case seeking that letters of
administration be granted to them. (Peaverde v. Peaverde)
SPECIAL ADMINISTRATOR
Heirs of Belinda Dahlia A. Castillo v. Lacuata-Gabriel, 474 SCRA 747 (2005)
The assigned errors in this case boil down to the propriety of the appointment of
respondent as special administratrix of the estate.

The petitioners argue that since the respondent does not have any right to inherit from
their grandmother she is not qualified to be appointed as administratrix of the estate.
They allege that the since respondent is not naturally related to the decedent by blood
in the direct descending line makes it unfair to appoint her as the special
administratrix.
Citing jurisprudence, the petitioners explain that the principal consideration in the
appointment of administrator is the applicants interest therein.
This is the same consideration which Section 6, Rule 78 of the Rules of Court takes
into account in establishing the order of preference in the appointment of such
administrators.
Behind this rule, the petitioners insist, is that those who will reap the benefit of a
wise, speedy, economical administration of the estate, or suffer the consequences of
waste, improvidence or mismanagement, have the highest interest and most
influential motive to administer the estate correctly.
Lastly, the petitioners posit that since a prior case had long been dismissed by the CA,
a regular administrator of the said estate should now be appointed.
In ruling against the petitioners and dismissing their petition, the CA ratiocinated as
follows:
The appointment of a “special” administrator lies entirely in the discretion of

the court.
The order of preference in the appointment of a regular administrator under Section

6, Rule 78 of the ROC does not apply to the selection of a special administrator.
Such appointment is temporary.
It subsists only until a regular administrator is appointed.
The court determines who is entitled to the administration of the estate of the
decedent.
Private respondent is entitled to the administration of the said estate because she is
an heir of her husband Roberto (decedent), whose estate is the estate of his adopting
mother Crisanta (decedent in issue).
The Court has repeatedly held that the appointment of a special administrator lies in
the sound discretion of the probate court.
A special administrator is a representative of a decedent appointed by the probate

court to care for and preserve his estate until an executor or general administrator is
appointed.
The principal object of appointment of temporary administrator is to preserve the

estate until it can pass into hands of person fully authorized to administer it for the
benefit of creditors and heirs.
When there is delay in granting letters of administration by any cause including an

appeal from the allowance or disallowance of a will, the court may appoint a special
administrator until:
1. The delay are decided; and
2. Executors or administrators appointed. (Section 1, Rule 80 of the Revised Rules of
Court)

The new Rules have broadened the basis for the appointment of an administrator,
such is allowed when there is delay by any cause, e.g., parties cannot agree among
themselves.
The discretion to appoint a special administrator lies in the probate court.
The probate court may appoint a special administrator should there be a delay in
granting letters testamentary or of administration occasioned by any cause including
an appeal from the allowance or disallowance of a will.
Cause or reason for the delay includes:

1. As where a contest as to the will is being carried on in the same or in another
court;
2. Where there is an appeal pending as to the proceeding on the removal of an
executor or administrator;
3. In cases where the parties cannot agree among themselves.
The appointment of a special administrator lies in the discretion of the Court.
This discretion, however, must be sound, that is, not whimsical, or contrary to reason,
justice, equity or legal principle. (De Guzman v. Guadiz, Jr.)
In the appointment of a special administrator the probate court does not determine
the shares in the decedent’s estate, but merely appoints who is entitled to administer
the estate.
Invocation of Section 6, Rule 78 of the Rules of Court is misplaced.
The rule refers to the appointment of regular administrators.
Section 1, Rule 80, on the other hand, applies to the appointment of a special
administrator.
Appointment of special administrators is not governed by the rules regarding the

appointment of regular administrators.
ESCHEAT
Republic v. Court of Appeals, 375 SCRA 484
Petitioner argues that the lower court had jurisdiction when it escheated the
properties and the filing of a petition for annulment of judgment on the ground of
subsequent discovery of the deeds of donation did not divest the lower court of its
jurisdiction on the matter.
It further contends that Rule 47 of the 1997 Rules of Civil Procedure only provides for
two (2) grounds for the annulment of judgment, namely: extrinsic fraud and lack of
jurisdiction.
As such the discovery of the deeds of donation seven (7) years after the finality of the
escheat proceedings is an extraneous matter which is clearly not an instance of
extrinsic fraud nor a ground to oust the lower court of its jurisdiction.
Petitioner also insists that notwithstanding the execution of the deeds of donation in
favor of private respondent, the 5-year statute of limitations to file claims before the
court a quo as set forth in Rule 91 of the Revised Rules of Court has set in.
Petitioner is correct.

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."
Escheat is one of the incidents of sovereignty.
The State prescribes 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.
A claimant to an escheated property must file within 5 years from the date of such
judgment.
Remedies:
1. Such claimant shall have possession of and title to the same; or
2. If sold, the municipality or city shall be accountable to him for the proceeds, after
deducting the estate.
A claim not made within such period shall be barred forever.
Incidentally, the question may be asked: Does private respondent, not being an heir but
a donee, have the personality to be a claimant within the purview of Sec. 4, Rule 91, of
the Revised Rules of Court?
Any person alleging to have a direct right or interest in the property sought to be
escheated is an interested party and may appear and oppose the petition for escheat.
(Municipal Council of San Pedro, Laguna v. Colegio de San Jose, Inc.,)
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. (Hamilton v. Brown)
With the lapse of the 5-year period, private respondent has lost her right to claim.
The supposed "discovery of the deeds of donation" is not enough justification to nullify
the escheat judgment which has long attained finality.
The lower court was not divested of its jurisdiction to escheat them notwithstanding
an allegation that they had been previously donated.
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.
GUARDIANSHIP AND CUSTODY OF CHILDREN
Vancil v. Belmes, 358 SCRA 707 (2001)
The basic issue for our resolution is who between the mother and grandmother should
be his guardian.
Being the natural mother of the minor, she has the preferential right over that of
petitioner to be his guardian.

The father and the mother shall jointly exercise parental authority over the persons of
their common children. In case of disagreement, the fathers decision shall prevail,
unless there is a judicial order to the contrary. (Article 211 of the Family Code)
The right of parents to the custody of their minor children is one of the natural rights
incident to parenthood, a right supported by law and sound public policy. (Sagala-
Eslao vs. Court of Appeals)
The right is an inherent one, not created by the state or decisions of the courts, but
derives from the nature of the parental relationship.
The grandparents claim to have better right through substitute parental authority.
Art. 214. In case of death, absence or unsuitability of the parents, substitute parental
authority shall be exercised by the surviving grandparent.
Only in case of the parents’ death, absence or unsuitability may substitute parental
authority be exercised by the surviving grandparent. (Santos, Sr. vs. Court of Appeals)
Surviving grandparent can exercise substitute parental authority only in case of death,
absence or unsuitability of respondent.
Respondent-mother is alive and has exercised parental authority.
Petitioner-grandparent has to prove, in asserting guardianship, respondents’

unsuitability.
Petitioner has not proffered convincing evidence showing that respondent is not suited
to be the guardian.
Petitioner merely insists that respondent is morally unfit as guardian considering that
her live-in partner raped Valerie several times.
But Valerie, being now of major age, is no longer a subject of this guardianship.
Even assuming that the mother is unfit as guardian of minor, still the grandparent
cannot qualify as a substitute guardian.
She is an American citizen and a resident of Colorado.
Obviously, she will not be able to perform the responsibilities and obligations required
of a guardian.
She admitted the difficulty of discharging the duties of a guardian by an expatriate.
Petitioner is of old age and her conviction of libel will give her a second thought of
staying here.
Indeed, her coming back to this country just to fulfill the duties of a guardian to for
only two years is not certain.
Courts should not appoint persons as guardians who are not within the jurisdiction
of our courts for they will find it difficult to protect the wards.
A guardian was removed upon the theory that her appointment was void because she
did not reside in the Philippine Islands. (Guerrero vs. Teran)
However, there is nothing in the law which requires the courts to appoint residents
only as administrators or guardians.

Nevertheless, the courts, charged with the responsibilities of protecting the estates of
deceased persons, wards of the estate, etc., will find much difficulty in complying with
this duty by appointing administrators and guardians who are not personally subject
to their jurisdiction.
The courts should not consent to the appointment of persons as administrators and
guardians who are not personally subject to the jurisdiction of our courts here.
GUARDIANSHIP COURT IS A COURT OF LIMITED JURISDICTION; PAYMENT OF

WIDOW'S ALLOWANCE
Heirs of Jose Sy Bang v. Sy, 603 SCRA 534 (2009)
Petitioners allege that the Guardianship Court have exceeded its jurisdiction in
directing the deposit of the widows allowance in Special Proceedings No. 96-34.
We find merit in petitioner’s contention.
The court hearing the petition for guardianship had limited jurisdiction.
It had no jurisdiction to enforce payment of the widows allowance ordered by this

Court.
SEC. 3. Allowance to widow and family. The widow and minor or incapacitated
children of a deceased person, during the settlement of the estate, shall receive
therefrom, under the direction of the court, such allowance as are provided by law.
The court referred to in Rule 83, Sec. 3 is the court hearing the settlement of the
estate.
Correlatively, Article 188 of the Civil Code states:
From the common mass of property support shall be given to the surviving spouse
and to the children during the liquidation of the inventoried property and until what
belongs to them is delivered; but from this shall be deducted that amount received for
support which exceeds the fruits or rents pertaining to them.
The widow’s allowance is to be taken from the common mass of property forming part
of the estate of the decedent.
The amount the widow receives for support, which exceeds the fruits or rents
pertaining to her, will be deducted from her share of the estate.
The probate court hearing the settlement of the estate should effect the
payment of widow’s allowance.
The properties of the estate are within its jurisdiction, to the exclusion of all other
courts.
Guardianship Court has special and limited jurisdiction.
GR: The guardianship court cannot order the delivery of the property of the ward
found to be embezzled, concealed, or conveyed.
XPN: Only in extreme cases may the court direct its delivery to the guardian:
1. Where property clearly belongs to the ward; or
2. Where his title thereto has been already judicially decided.
There can only be return of the embezzled, concealed or conveyed property, where the
right or title of said ward is clear and undisputable.

Where the title itself is in dispute, the determination of said title must be made in a
separate ordinary action and not in guardianship proceedings.
The non-determination of extent of the entire estate is no excuse from complying with
the payment of allowance.
Properties that have been identified should be made to answer for the widow’s
allowance.
PETITION FOR APPOINTMENT OF A GUARDIAN IS A SPECIAL PROCEEDING,

WITHOUT THE USUAL PARTIES
Alamayri v. Pabale, 553 SCRA 146 (2008)
A guardian may be appointed by the RTC over the person and estate of a minor or an
incompetent.
Rule 93 of the Rules of Court governs the proceedings for the appointment of a
guardian.
Who may petition for appointment of guardian for resident?
1. Any relative;
2. Friend; or
3. Other person on behalf of a resident minor or incompetent who has no parent or
lawful guardian.
The minor himself, fourteen years of age or over, may petition the court having
jurisdiction for the appointment of a general guardian for the person or estate, or both,
of such minor or incompetent.
What are the contents of petition?
1. The jurisdictional facts;

2. The minority or incompetency rendering the appointment necessary or convenient;
3. The names, ages, and residences of the relatives of the minor or incompetent, and
of the persons having him in their care;
4. The probable value and character of his estate;
5. The name of the person for whom letters of guardianship are prayed.
The petition shall be verified.
No defect in the petition or verification shall render void the issuance of letters of
guardianship.
Court should set time for hearing and give notice thereof.
When a petition for guardianship is filed, the court shall:

1. Fix a time and place for hearing; and
2. Give notice to the persons mentioned in the petition residing in the province.
Who may oppose to the petition?
Any interested person may, by filing a written opposition, contest the petition on the
ground of:
1. Majority of the alleged minor;
2. Competency of the alleged incompetent; or
3. Unsuitability of the person for whom letters are prayed.

Final orders shall be served upon the civil registrar of the municipality or city where
the minor or incompetent person resides or where his property or part thereof is
situated.
A petition for appointment of a guardian is a “special proceeding”, without the

usual parties, i.e., petitioner versus respondent, in an ordinary civil case.
The objectives of an RTC hearing a petition for appointment of a guardian is to

determine:
1. Whether a person is indeed a minor or an incompetent; and
2. Who is most qualified to be appointed as his guardian.
The rules do not necessitate that creditors of the minor or incompetent be likewise
identified and notified.
The reason is simple: their presence is not essential to the proceedings for
appointment of a guardian.
JURISDICTION OF PROBATE COURT INCLUDES QUESTIONS AS TO

ADVANCEMENT MADE OR ALLEGED TO HAVE BEEN MADE BY THE DECEASED
TO ANY HEIRS
Natcher v. Court of Appeals, 366 SCRA 385 (2001)
Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special
proceedings, in this wise:
A civil action is one by which a party sues another for the enforcement or protection
of a right, or the prevention or redress of a wrong.
A civil action may either be ordinary or special.
Both are governed by the rules for ordinary civil actions, subject to specific rules
prescribed for a special civil action.
A special proceeding is a remedy by which a party seeks to establish a status, a right

or a particular fact.
There lies a marked distinction between an action and a special proceeding.
An action is a formal demand of one's right.
It is the method of applying legal remedies according to definite established rules.
Special proceeding is an application or proceeding to establish the status or right of a

party, or a particular fact.
In special proceedings, no formal pleadings are required unless the statute expressly
so provides.
In special proceedings, the remedy is granted generally upon an application or

motion.
Special proceedings are not ordinary proceedings.
There are some special modes, as in the case of:

1. Proceedings commenced without summons; and
2. Prosecuted without regular pleadings, which are characteristics of ordinary
actions.

A special proceeding must be in the nature of a distinct and independent proceeding
for particular relief.
Such may be instituted independently of a pending action, by petition or motion upon

notice.
Action for reconveyance and annulment of title is a civil action.
Matters relating to settlement of the estate such as advancement of property made by

the decedent, partake of the nature of a special proceeding.
Matters of settlement and distribution of the estate fall within the province of the
probate court acting on its limited jurisdiction.
Questions as to advancement made by the deceased to any heir may be heard by

the court having jurisdiction of the estate proceedings.
The final order of the court shall be binding only on the person raising the questions
and on the heir.
The Regional Trial Court, acting in its general jurisdiction, is devoid of authority to
render adjudication and resolve the issue of advancement of the real property.
The ordinary civil cases for re-conveyance and annulment of title with damages are
not, to our mind, the proper vehicle to thresh out said question.
The RTC was not properly constituted as a probate court so as to validly pass upon
the question of advancement.
Before a court can make a partition and distribution of the estate of a deceased, it
must first settle the estate in a special proceeding instituted for the purpose.
Trial courts trying an ordinary action cannot resolve to perform acts pertaining to a
special proceeding because it is subject to specific prescribed rules.
This Court is aware of the pronouncement in Coca vs. Borromeo and Mendoza vs.
Teh that whether a particular matter should be resolved by the RTC in the exercise of
its general jurisdiction or its limited probate jurisdiction is not a jurisdictional issue
but a mere question of procedure.
It is procedural question involving a mode of practice "which may be waived".
We do not see any waiver inasmuch as the authority of the trail court, acting in its
general jurisdiction, was assailed to rule on this specific issue of advancement.
GR: Probate court may not decide a question of title or ownership.
XPNs:
1. If the interested parties are all heirs;
2. The question is one of collation or advancement; or
3. The parties consent to the assumption of jurisdiction and the rights of third parties
are not impaired, then the probate court is competent to decide the question of
ownership.
Appointment of estate administratrix does not necessarily involve settlement of

estate, hence, would not invite the exercise of the limited jurisdiction of a
probate court. (Mendoza vs. Teh)
Adelia C. Mendoza v. Hon. Angelito C. Teh; G.R. No. 122646; March 14, 1997;
Francisco, J.:

The issue is whether or not in an action for reconveyance, an allegation seeking
appointment as administratrix of an estate, would oust the RTC of its jurisdiction over
the whole case.
We rule in the negative.
An action for Reconveyance is cognizable by the RTC.
Falling within its jurisdiction are actions "incapable of pecuniary estimation," such as
the appointment of an administratrix for an estate.
The Rules on venue of estate proceedings impliedly recognizes the jurisdiction of the
RTC over petitions for granting of letters of administration.
Probate proceedings for the settlement of estate are within the ambit of either the RTC
or MTC depending on the net worth of the estate.
By arguing that the allegation seeking such appointment as administratrix ousted the
RTC of its jurisdiction, they confuse jurisdiction with venue.
Actions involving title to property shall be tried in the province where the property is
located.
No settlement of estate is involved, only appointment of estate administratrix.
This does not necessarily involve settlement of estate that would have invited the
exercise of the limited jurisdiction of a probate court.
The above allegation is not even a jurisdictional fact which must be stated in an action
for reconveyance.
The Court, should have at least, proceeded with the reconveyance suit rather than
dismiss the entire case.
The RTC of Batangas was not acting as a probate court.
Whether a particular matter should be resolved by the RTC in the exercise of its
general jurisdiction or its limited probate jurisdiction, is not a jurisdictional issue
but a mere question of procedure.
The instant action for reconveyance does not invoke the limited jurisdiction of a
probate court.
The RTC has jurisdiction on the reconveyance suit and to the appointment of an
administratrix.
ADOPTION
Lahom v. Sibulo, 406 SCRA 135 (2003) While R.A. No. 8552
Salient features of R.A. No. 8552:

1. Affirmed the legitimate status of the adopted child;
2. Withdrew the right of an adopter to rescind the adoption decree; and
3. Gave to the adopted child the sole right to sever the legal ties.
Petitioner insist that R.A. No. 8552 should not adversely affect her right to annul the
adoption, nor deprive the trial court of its jurisdiction, both being vested under the
Civil Code and the Family Code, the laws then in force.
The concept of vested right is a consequence of the constitutional guaranty of due

process.

A protection against arbitrary state action;
Vested right includes:

1. Legal or equitable title to the enforcement of a demand;
2. Exemptions from new obligations created after the right has become vested.
Rights are considered vested when the right to enjoyment is a present interest,
absolute, unconditional, and perfect or fixed and irrefutable.
In Republic vs. Court of Appeals, pending on appeal on adoption, the Family

Code, mandating joint adoption by the husband and wife, took effect.
Petitioner Republic argued that the case should be dismissed for having been filed by
Mrs. Bobiles alone and without being joined by the husband.
The Court concluded that the jurisdiction of the court is determined by the statute in
force at the time of the commencement of the action.
The petition, without being joined by husband, according to the Court had become
vested.
In Republic vs. Miller, a petition was filed while P.D. No. 603 allowed aliens to adopt;
thereafter Family Code was enacted disqualifying aliens from adopting Filipino
children.
The Republic then prayed for the withdrawal of the adoption decree.
The Supreme Court ruled that the controversy should be resolved in the light of the
law governing at the time the petition was filed.
Presently, it was months after the effectivity of R.A. No. 8552 that petitioner filed an
action to revoke the decree of adoption granted in 1975.
By then, the new law, had already repealed the right of an adopter under the Civil
Code and the Family Code to rescind a decree of adoption.
Note: Find the cross of the timing of an action and the prevailing policy. The prevailing
policy will be used to an issue filed within its effectivity.
The action for rescission, having been initiated after R.A. No. 8552, is unwarranted.
Even before RA 8552, the rescission is subject to the five year bar rule under Rule
100 of the Rules of Court.
The adopter would lose the right to revoke the adoption after the lapse of 5 years.
A person has no vested right in statutory “privileges”.
While adoption has often been referred to as a right, the privilege to adopt is not
inherent or but rather a right merely created by statute.
It is a privilege that is governed by the states determination on what it may deem to be

for the best interest and welfare of the child.
Adoption matters, including withdrawal of the right of an adopter to nullify the

adoption decree, are subject to regulation by the State.
A right of action given by statute may be taken away at anytime before it is exercised.

RECEPTION OF EVIDENCE IN ADOPTION CASES
Munsayac v. Reyes, 492 SCRA 404 (2006)
All RTC Judges are to personally hear all adoption cases and not to delegate to the
clerk of court the reception of evidence.
Ex-parte reception of evidence by non-lawyers/employees of RTC judges is not

allowed.
In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, 454 SCRA 541
(2005)
May an illegitimate child, upon adoption by her natural father, use the surname of
her natural mother as her middle name? This is the issue raised in the instant case.
Petitioner submits that the trial court erred in depriving Stephanie of a middle name
as a consequence of adoption because:
1. There is no law prohibiting an adopted child from having a middle name in case
there is only one adopting parent;
2. It is customary for every Filipino to have as middle name the surname of the
mother;
3. The middle name or initial is a part of the name of a person;
4. Adoption is for the benefit and best interest of the adopted child, hence, her right
to bear a proper name should not be violated;
5. Permitting stephanie to use the middle name garcia (her mothers surname) avoids
the stigma of her illegitimacy; and;
6. Her continued use of garcia as her middle name is not opposed by either the
catindig or garcia families.
The Republic, through the OSG, agrees to the use, as her middle name, the surname
of her natural mother for the following reasons:
1. To preserve and maintain Stephanies filiation with her natural mother because
under Article 189 of the Family Code, she remains to be an “intestate” heir of
the latter.
To prevent any confusion and hardship in the future, proof of that relationship
with her natural mother should be maintained.
2. There is no law expressly prohibiting Stephanie to use the surname of her natural
mother as her middle name. What the law does not prohibit, it allows.
3. It is customary for every Filipino to have a middle name, which is ordinarily the
surname of the mother.
This custom has been recognized by the Civil Code and Family Code.
We find merit in the petition.
Use of Surname is Fixed By Law
Name is defined as the word or combination of words by which a person is

distinguished from other individuals.
Name has two parts:

1. The given or proper name; and
2. The surname or family name.
The proper name is that which is given at birth or at baptism.

The surname identifies the family to which he belongs and is continued from parent to
child.
The proper name may be freely selected by the parents for the child.
The surname is fixed by law.
Articles 364 to 380 of the Civil Code regulate the use of surname, whether he may be
legitimate or illegitimate, an adopted child, a married woman or a previously married
woman, or a widow, thus:
1. Art. 364. Legitimate and legitimated children shall principally use the surname of
the father.
2. Art. 365. An adopted child shall bear the surname of the adopter.
3. Art. 369. Children conceived before the decree annulling a voidable marriage shall
principally use the surname of the father.
4. Art. 370. A married woman may use:
1. Her maiden first name and surname and add her husband's surname, or
2. Her maiden first name and her husband's surname or
3. Her husband's full name, but prefixing a word indicating that she is his wife,
such as Mrs.
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall
resume her maiden name and surname.
If she is the innocent spouse, she may resume her maiden name and surname.
However, she may choose to continue employing her former husband's surname,
unless:
1. The court decrees otherwise, or
2. She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall continue using her
name and surname employed before the legal separation.
Art. 373. A widow may use the deceased husband's surname as though he were still
living, in accordance with Article 370.
Art. 374. In case of identity of names and surnames, the younger person shall be
obliged to use such additional name or surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between ascendants and
descendants, the word Junior can be used only by a son. Grandsons and other direct
male descendants shall either:
1. Add a middle name or the mother's surname,
2. Add the Roman numerals II, III, and so on.
Law is Silent as to the Use of Middle Name
There is no law regulating the use of a middle name.
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.
The members of the Civil Code and Family Law Committees recognized the Filipino
custom of adding the surname of the child’s mother as his middle name.
The initial or surname of the mother should immediately precede the surname of the
father.

Justice Caguioa: There is a difference between the use by the wife of the surname and
that of the child because the fathers surname indicates the family to which he
belongs, for which reason he would insist on the use of the fathers surname by the
child but that, if he wants to, the child may also use the surname of the mother.
Justice Puno posed the question: If the child chooses to use the surname of the mother,
how will his name be written?
Justice Caguioa: It is up to him but that his point is that it should be mandatory that
the child uses the surname of the father and permissive in the case of the surname
of the mother.
Prof. Baviera remarked that Justice Caguioas point is covered by the present Article
364, which reads:
Legitimate and legitimated children shall principally use the surname of the father.
Justice Puno pointed: Many names change through no choice of the person himself
precisely because of this misunderstanding.
Example: Alfonso Ponce Enrile correct surname is Ponce since the mothers surname is
Enrile but everybody calls him Atty. Enrile.
Justice Jose Gutierrez Davids family name is Gutierrez and his mother’s surname is
David but they all call him Justice David.
Justice Caguioa: The Article should be modified so it shall be mandatory on the

child to use the surname of the father but he may use the surname of the
mother by way of an initial or a middle name.
Justice Puno: Initial or surname of the mother should immediately precede the
surname of the father so that the second name, if any, will be before the surname of
the mother.
Prof. Balane: This is really the Filipino way.
In the case of an adopted child, the adopted shall bear the surname of the adopters.
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.
The Underlying Intent of Adoption is in Favor of the Adopted Child
Adoption is defined as the process of making a child, whether related or not to the
adopter, possess in general, the rights accorded to a legitimate child.
It is a juridical act, a proceeding in rem which creates between two persons a

relationship similar to that which results from legitimate paternity and filiation.
Adoption is an act to establish a relationship of paternity and filiation.
It is also an act which endows the child with a legitimate status.
Convention of the Rights of the Child by the United Nations: Adoption is impressed
with social and moral responsibility, and that its underlying intent is geared to favor
the adopted child.
Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998,
secures these rights and privileges for the adopted.

One of the effects of adoption is that the adopted is deemed to be a legitimate child.
Being a legitimate child through adoption, it follows that Stephanie is entitled to all
the rights provided by law to a legitimate child, including the right to bear the
surname of her father and her mother.
Customarily the initial or surname of the mother should immediately precede the
surname of the father.
Continued use of the middle name will maintain her maternal lineage.
The adoptee remains an intestate heir of his/her biological parent. (Article 189(3) FC
and Section 18[24], Article V of RA 8552)
Stephanie can assert her hereditary rights from her natural mother in the future.
Liberal Construction of Adoption Statutes in Favor of Adoption
Adoption statutes, being humane and salutary, should be liberally construed to carry
out the beneficent purposes of adoption.
Every reasonable intendment should be sustained to promote and fulfill these noble
and compassionate objectives of the law.
The interests and welfare of the adopted child are of primary and paramount
consideration.
In case of doubt in the interpretation or application of laws, it is presumed that the

lawmaking body intended right and justice to prevail. (Art. 10 of the New Civil Code)
Tip the scales in favor of right and justice when the law is doubtful or obscure.
Since there is no law prohibiting an illegitimate child adopted by her natural father,
to use, as middle name her mother’s surname, she should be allowed to do so.
HABEAS CORPUS
Martinez v. Mendoza, 499 SCRA 234 (2006)
Propriety of Habeas Corpus
Petitioners anchor for the present case is the disappearance of Michael.
The matter of his alleged detention is, at best, merely consequential to his
disappearance.
Habeas corpus proceeding is not for disappearance, but on his illegal “detention.”
Habeas corpus generally applies to all cases of illegal “confinement” or

“detention.”
Ultimate purpose: To relieve a person from unlawful restraint.
It is devised as a speedy relief from unlawful restraint.
It is a remedy intended to determine whether person under detention is held under

lawful authority.
This remedy has one objective -- to “inquire” into the cause of detention of a
person.

The purpose is to determine whether a person is being illegally deprived of his
liberty.
If the inquiry reveals that the detention is illegal, the court orders the release of the
person.
If the detention is proven lawful, then the habeas corpus proceedings terminate.
The use of habeas corpus is thus very limited.
Habeas corpus may not be used as a means of:

1. Obtaining evidence on the whereabouts of a person; or
2. As a means of finding out who has specifically abducted or caused the
disappearance of a certain person.
Respondent: They never had custody over the person, the petition must be dismissed.
Forcible Taking and Disappearance
When forcible taking and disappearance -- not arrest and detention -- have been
alleged, the proper remedy is not habeas corpus proceedings, but criminal
investigation and proceedings.
Abduction or kidnapping is a crime punishable by law.
Investigations of crimes are the duty of the PNP and the NBI, not the courts.
There are instances when members of the PNP -- the agency tasked with investigating
crimes -- are suspected of being responsible for the disappearance of a person, who is
the subject of habeas corpus proceedings.
In fine, this proceeding for habeas corpus cannot be used as a substitute for a
criminal investigation.
Instead of rendering justice to all, it may render injustice if it resorts to shortcuts

through habeas corpus.
The DILG, specifically the Peoples Law Enforcement Board (PLEB, is tasked to
investigate abuses or wrongdoings by members of the PNP.
CEZARI GONZALES and JULIUS MESA v. Gen. EFREN ABU; G.R. No. 170924; EN
BANC ; July 4, 2007
When a person is “released”, the Petition for the issuance of the writ becomes
moot and academic.
With the release, the Petition for Habeas Corpus is rendered of no practical value.
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS, SSGT. EDGARDO L.

OSORIO v. ASSISTANT STATE PROSECUTOR JUAN PEDRO C. NAVERA
G.R. No. 223272, February 26, 2018; LEONEN, J.:
The "great writ of liberty" of habeas corpus "was devised and exists as a speedy and
effectual remedy to relieve persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom."
Habeas corpus is an
1. Extraordinary,
2. Summary; and
3. Equitable writ consistent with the law's zealous regard for personal liberty.

Primary purpose: Inquire into all manner of involuntary restraint, not voluntary,
and to relieve a person if such restraint is illegal.
Any restraint which will preclude freedom of action is sufficient.
The restraint of liberty need not be confined to any offense so as to entitle a person to
the writ.
Habeas corpus may be availed of:

1. As a post-conviction remedy; or
2. When there is an alleged violation of the liberty of abode.
Court allowed the issuance of the writ due to mistaken identity. (In re: Saliba v.
Warden)
A writ of habeas corpus may no longer be issued if the person is restrained under
a lawful order of the court.
The restraint then has become legal.
Therefore, the remedy of habeas corpus is rendered moot and academic.
The arrest warrants were issued by the court that has jurisdiction over the offense
charged, the restraint has become legal.
The proper remedy is to pursue the orderly course of trial and exhaust the usual
remedies, the first of which would be a motion to quash, filed before arraignment,
on the following grounds:
1. The facts charged do not constitute an offense;
2. The court trying the case has no jurisdiction over the offense charged; and
3. The officer who filed the information had no authority to do so.
HABEAS DATA
MARYNETTE R. GAMBOA v. P/SSUPT. MARLOU C. CHAN

G.R. No. 193636, July 24, 2012, Sereno, C.J.
In case of conflict between the right to privacy and compelling state interest, a
balancing act is required to weigh both notions.
The right to privacy may nevertheless succumb to an opposing or overriding state

interest deemed legitimate and compelling.
The writ of habeas data is an independent and summary remedy designed to protect
the image, privacy, honor, information, and freedom of information of an individual,
and to provide a forum to enforce one’s right to the truth and to informational
privacy.
It seeks to protect a person’s right to control information regarding oneself,

particularly in instances in which such information is being collected through
unlawful means in order to achieve unlawful ends.
Privilege of the writ to be granted, there must exist a nexus between the right to
privacy on the one hand, and the right to life, liberty or security on the other.
State interest of dismantling private army groups far outweighs the alleged intrusion
on the private life especially when the collection of information was pursuant to a
lawful mandate.

SPECIAL PROCEEDINGS; HABEAS CORPUS; CONCURRENT JURISDICTION OF
THE COURT OF APPEALS AND SUPREME COURT WITH THE FAMILY COURTS IN
HABEAS CORPUS CASES WHERE CUSTODY OF MINORS IS CONCERNED
Thornton v. Thornton, 436 SCRA 550 (2004)
The petition is granted.
Petitioner filed petition for habeas corpus in the Court of Appeals which could issue a
writ of habeas corpus enforceable in the entire country.
The issue is whether the CA has jurisdiction to issue writs of habeas corpus in cases
involving custody of minors as RA 8369 giving family courts exclusive original
jurisdiction over petitions for habeas corpus.
Solicitor General points out that Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors has rendered the issue moot.
The rule provides that a petition for habeas corpus may be filed in the Supreme
Court, Court of Appeals, or with any of its members and shall be enforceable
anywhere in the Philippines.
Nothing in RA 8369 revokes CA’s jurisdiction to issue writs of habeas corpus involving
the custody of minors.
CA opines that family courts has exclusive jurisdiction over habeas corpus cases, the
lawmakers intended it to be the sole court which can issue writs of habeas corpus.
CA: The word exclusive apparently cannot be construed any other way.
We disagree.
It will leave individuals without legal recourse in obtaining custody of their children.
Individuals who do not know the whereabouts of minors they are looking for would be
helpless.
Family courts’ writs are enforceable only in territorial jurisdictions.
RA 8369 (The Family Courts Act of 1997) did not divest the Court of Appeals and the
Supreme Court of their jurisdiction over habeas corpus cases involving the custody
of minors.
CA and SC exercise jurisdiction in petition for habeas corpus involving a minor

whose whereabouts are uncertain and transient.
This is not the first time that SC construed the word exclusive as not foreclosing
resort to another jurisdiction.
In Floresca vs. Philex Mining Corporation, the heirs of miners killed in a work-related
accident were allowed to file suit in the regular courts even if, under the Workmens
Compensation Act, the Workmens Compensation Commissioner had exclusive
jurisdiction over such cases.
Floresca supports that the word exclusive in the Family Courts Act of 1997 may not
connote automatic foreclosure of the jurisdiction of other courts over habeas corpus
cases involving minors.
What is controlling is the spirit and intent, not the letter.

The Family Court can issue writs of habeas corpus enforceable only within its
territorial jurisdiction.
Where the territorial jurisdiction for the enforcement of the writ cannot be determined
with certainty, the Court of Appeals can issue the same writ enforceable throughout
the Philippines.
The Writ of Habeas Corpus may be granted by:

1. The Supreme Court, or any member thereof, on any day and at any time;
2. The Court of Appeals or any member thereof.
It shall be enforceable anywhere in the Philippines.
3. It may also be granted by a Court of First Instance, or a judge thereof, on any day
and at any time.
It shall be enforceable only within his judicial district.
The Court of Appeals and Supreme Court have concurrent jurisdiction with family
courts in habeas corpus cases where the custody of minors is involved.
Language is rarely so free from ambiguity as to be incapable of being used in more than
one sense.
What the legislature actually had in mind is not accurately reflected in the language of a
statute, and its literal interpretation may render it meaningless, lead to absurdity,
injustice or contradiction.
Moreover, implied repeals are not favored.
The two laws must be absolutely incompatible, and a clear finding thereof must
surface, before implied repeal may be drawn.
All doubts must be resolved against any implied repeal.
All efforts should be exerted in order to harmonize and give effect to all laws on the
subject.
RA 8369 reveals no manifest intent to revoke the jurisdiction of the Court of Appeals
and Supreme Court to issue writs of habeas corpus relating to the custody of minors.
Veluz v. Villanueva, 543 SCRA 63 (2008)
Petition denied.
Court of Appeals: Petitioner failed to present any convincing proof that respondents
were unlawfully restraining their mother of her liberty.
CA: He failed to establish his legal right to the custody as he was not her legal
guardian.
Petitioner: In determining whether or not a writ of habeas corpus should issue, a court
should limit itself to determining whether or not a person is unlawfully being deprived
of liberty.
Petitioner: There is no need to consider legal custody or custodial rights.
Petitioner: The writ is available:

1. If the rightful custody of a person is being withheld from the person entitled
thereto;

2. If the person who disappears or is illegally being detained is of legal age and is not
under guardianship.
Petitioner: A writ of habeas corpus can cover persons who are not under the legal
custody of another.
Petitioner: As long as one is illegally deprived of liberty, the writ may issue so that his
physical body may be brought before the court to determine deprivation of liberty.
Respondent: Mother willingly went with them.
We rule for the respondents.
The writ of habeas corpus “extends” to:

1. All cases of illegal detention by which any person is deprived of his liberty; or
2. The rightful custody of a person is being withheld from the one entitled thereto.
It is issued when:
1. One is either deprived of liberty; or
2. Wrongfully being prevented from exercising legal custody.
It contemplates two instances:

1. Deprivation of liberty; and
2. Withholding of the custody of any person from someone entitled to such custody.
The issue is not whether there is withholding of custody but whether there is
restriction of liberty.
What is important is Eufemia’s personal freedom.
To grant the writ, the restraint of liberty must be in the nature of an:
1. Illegal; and
2. Involuntary deprivation of freedom of action.
The purpose of the writ is to determine whether a particular person is legally held.
Restraint of liberty must be actual and effective, not merely nominal or moral.
Judicial discretion is called for in its issuance and it must be clear to the judge to
whom the petition is presented that, prima facie, the petitioner is entitled to the writ.
Camara v. Pagayatan, 520 SCRA 182 (2007)
Camara was detained under a warrant of arrest arising from a contempt citation.
A writ of habeas corpus does not lie if it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a
court or judge, and that the court or judge had jurisdiction to issue the process.
(Section 4, Rule 102 of the Rules of Court)
Petitioner does not question the trial court’s jurisdiction.
What is assailed is judge’s refusal to release Camara from detention despite

compliance of the preliminary order.
The issue is whether the judge acted with grave abuse of discretion amounting to lack
or in excess of his jurisdiction.
The office of the writ is to inquire into the legality of deprivation of liberty.

Seven days after such deposit, respondent judge ordered Camara to remain in
detention until further compliance.
This is grave abuse of contempt powers, amounting to lack or excess of his

jurisdiction.
Contempt powers is a drastic and extraordinary attribute of courts.
It must be exercised in the interest of justice and only when there is clear and
contumacious refusal to obey orders.
CHANGE OF NAME
Republic v. Bolante, 495 SCRA 729 (2006)
Non-compliance with the procedural requirements would be fatal to the jurisdiction of

the lower court to hear and determine a petition for change of name. (Republic v. Hon.
Judge of Branch III of the CFI of Cebu)
SEC. 2. Contents of petition. - A petition for change of name shall be signed and
verified by the person desiring his name changed, or some other person on his behalf,
and shall set forth:
1. That the petitioner has been a bona fide resident of the province where the petition
is filed for at least 3 years prior to the date of such filing;
2. The cause for change of the petitioner's name is sought;
3. The name asked for.
SEC. 3. Order for hearing. - If the petition filed is sufficient in form and substance, the
court, by an order reciting the purpose of the petition:
1. Shall fix a date;
2. Fix the place for the hearing; and
3. Direct publication before the hearing at least once a week for 3 successive weeks
in provincial newspaper.
The date set for the hearing shall not be within 30 days prior to an election.
The date for hearing shall not be within 4 months after the last publication.
Petitioner: The initial hearing of a petition for a change of name cannot be set within 4
months.
Petitioner: Trial court did not acquire jurisdiction over the case for want or defective
publication.
We are not persuaded.
Basic petition for change of name: Filed October 18, 2000.
Hearing: February 20, 200.
Notice of Hearing Publication: November 23, and 30, 2000 and December 7, 2000.
Counted from the last day, December 7, 2000, of publication: Initial hearing on
February 20, 2001 is within the four-month prohibited period.
Realizing the error committed respecting the 4-month limitation, the court rectified
and rescheduled the hearing to September 25, 2001.
Petitioner: The fact that the hearing took place on September 25, 2001, did not cure
the jurisdictional defect since notice of the September 25, 2001 setting went
unpublished.

Petitioner: State – and correctly so – that the in rem nature of a change of name
proceeding necessitates strict compliance with all jurisdictional requirements,
particularly on publication, in order to vest the court with jurisdiction.
The required publication serves as notice to the whole world.
It is the publications of such notice that:

1. Brings in the whole world as a party; and
2. Vests the court with jurisdiction to hear and decide it.
Publication is valid if the following requisites concur:

1. The petition, copy of the order with date and place for hearing must be published;
2. The publication must be at least once a week for three successive weeks; and
3. The publication must be in some newspaper of general circulation published in the
province. (Section 3, Rule 103 of the Rules)
Other prohibitions:
1. Being heard within 30 days prior to an election; or
2. Within 4 months after the last publication of the notice of the hearing.
In a petition for change of name, any interested person may appear at the hearing and
oppose the petition.
The Solicitor General or his deputy shall appear on behalf of the Government,
effectively representing the public.
The Solicitor General deputized the provincial prosecutor of Abra on his behalf.
The prosecutor was fully apprised of the new dates of the initial hearing.
There was no actual need for a “republication” of the initial notice of the
hearing.
During the initial hearing, prosecutor interposed no objection as to the genuineness,

authenticity, relevancy or sufficiency of the exhibits presented to prove the
jurisdictional requirements exacted by the Rules.
Republic fully and knowingly acquiesced in the jurisdiction of the trial court.
The peculiar circumstances obtaining in this case and the requirements of fair
dealing demand that we accord validity to the proceedings.
Notes (peculiarity of the case):

1. The prosecutor was fully apprised of the new dates; and
2. There was failure to timely interpose objection to the jurisdictional defects.
Changing one's name is a privilege and not a right.
The State has an interest in the names borne by individuals for purposes of
identification,
A person can be authorized to change his name upon showing of:

1. Reasonable cause or any compelling reason which may justify such change; and
2. That he will be prejudiced by the use of his true and official name.
Jurisprudence has recognized certain justifying grounds to warrant a change of name:

1. When the name is ridiculous, dishonorable or extremely difficult to write or
pronounce;
2. When the change will avoid confusion;

3. When one has been continuously used and been known since childhood by a
Filipino name, and was unaware of alien parentage;
4. When the surname causes embarrassment; not for fraudulent purpose or will not
prejudice public interest.
Granting or denying such petitions rests on the sound discretion of the court.
Evidence need only be satisfactory to the court; it need not be the best evidence
available.
Change of name is a special proceedings.
Change of name is not a mere matter of allowance or disallowance of the petition, but
a judicious evaluation of the sufficiency and propriety of the justifications. (Republic v.
Court of Appeals)
The sole prerogative for making such determination is lodged in the courts.
OSG: Bare testimony is insufficient to show that the requested name is not sought for
any illegal purpose.
Respondent's testimony, given under pain of perjury and for which she was cross-
examined, is sufficient.
Change of registered name to avoid confusion having used a different name all her
life is a valid ground.
OSG: There was failure to prove that the petition is not resorted to for an illegal
purpose due to inability to present NBI as well as police clearance to the effect that
she has no derogatory records.
Rule 103 does not so require such a quantum of proof to establish the fact that a
petitioner has no derogatory records.
The purpose is served upon the declaration and affirmation of the petitioner in open
court that the petition is not to further fraud but for a legitimate purpose, coupled by
the absence of any oppositor to the petition.
Jurisprudence does not yet require presentment of NBI and police clearances to prove
that petition is not resorted to for purpose of fraud.
In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil

Registry of Julian Lin Carulasan Wang, 454 SCRA 155 (2005)
Trial Court: The change sought is merely for the convenience of the child.
Since the State has an interest in the name of a person, names cannot be changed to
suit the convenience of the bearers.
Legitimate children have the right to bear the surnames of the father and the mother.
(Article 174 of the Family Code)
Trial Court: When petitioner reaches the age of majority, he could then decide whether
he will change his name by dropping his middle name.
We affirm the decision of the trial court.
Change of name is a privilege and not a right.
The touchstone for the grant is a proper and reasonable cause for the change.

To justify a request for change of name petitioner must show:
1. Proper or compelling reason; and
2. Prejudice by the use of his true and official name.
Some valid grounds:

1. When the name is ridiculous, dishonorable or extremely difficult to write or
pronounce;
2. When the change results as a legal consequence, as in legitimation;
3. When the change will avoid confusion;
4. When one has continuously used and been known since childhood by a Filipino
name, and was unaware of alien parentage;
5. A sincere desire to adopt a Filipino name to erase signs of former alienage, all in
good faith and without prejudicing anybody; and
6. When the surname causes embarrassment and there is no showing that the
desired change of name was for a fraudulent purpose or that the change of name
would prejudice public interest.
The question of proper and reasonable cause is left to the sound discretion of the
court.
The evidence presented need only be satisfactory to the court and not all the best
evidence available.
What is involved is a judicious evaluation of the sufficiency and propriety of the

justifications.
Making of such determination is lodged in the courts.
The petition before us seek to change the name of the minor petitioner and to drop
the middle name altogether.
Does the law allow one to “drop” the “middle name” from his registered name?
We have to answer in the negative.
A name has the following characteristics:

1. It is absolute, intended to protect the individual from being confused with others.
2. It is obligatory in certain respects, for nobody can be without a name.
3. It is fixed, unchangeable, or immutable, at least at the start, and may be changed
only for good cause and by judicial proceedings.
4. It is outside the commerce of man, and, therefore, inalienable and intransmissible
by act inter vivos or mortis causa.
5. It is imprescriptible.
This citation does not refer to middle names.
This does not mean that middle names have no practical or legal significance.
Middle names serve to identify the maternal lineage or filiation of a person as well as
further distinguish him from others who may have the same given name and surname
as he has.
Legitimate and legitimated children shall principally use the surname of the father.
The Family Code gives legitimate children the right to bear the surnames of the
father and the mother.
Illegitimate children shall use the surname of their mother, unless their father
recognizes their filiation, in which case they may bear the fathers surname.

An illegitimate child whose filiation is not recognized by the father bears only a
given name and his mother’s surname, and does not have a middle name.
The name of the unrecognized illegitimate child therefore identifies him as such.
The registered name of a legitimate, legitimated and recognized illegitimate child thus
contains a given or proper name, a middle name, and a surname.
Petitioner: It would be for his best interest to drop his middle name as this would help
him to adjust more easily to and integrate himself into Singaporean society.
In Oshita, petitioner sought to change her name from Antonina B. Oshita to Antonina
Bartolome.
The Court granted her petition based on the following considerations:

1. She had elected Philippine citizenship upon reaching the age of majority;
2. Her other siblings who had also elected Philippine citizenship have been using their
mothers surname;
3. She was embarrassed to bear a Japanese surname there still being ill feeling
against the Japanese due to the last World War; and
4. There was no showing that the change of name was motivated by a fraudulent
purpose or that it will prejudice public interest.
In Calderon, the Court allowed an illegitimate minor child to change her name, taking
the surname of her stepfather, Romeo C. Calderon, her mothers husband.
Petition for change of name of an infant should be granted where to do is clearly for
the best interest of the child.
Petitioner: In Alfon v. Republic, Article 174 of the Family Code gives the legitimate child
the right to use the surnames of the father and the mother, it is not mandatory such
that the child could use only one family name, even the family name of the mother.
In Alfon, the legitimate daughter sought to change her name from Maria Estrella
Veronica Primitiva Duterte (father’s SN)to Estrella S. Alfon (mother’s SN).
The latter name she had been using since childhood, in her school records and in her
voters registration.
GR: As a legitimate child, one should principally use the surname of the father.
(Article 364 of the Civil Code)
XPN: There is no legal obstacle for one to choose to use the surname of the mother to
which she is entitled.
There was ample justification to grant her petition, i.e., to avoid confusion.
The instant case is clearly distinguishable from the cases of Oshita and Alfon, where
the petitioners were already of age when they filed their petitions for change of name.
Being of age, they are considered to have exercised their discretion and judgment, fully
knowing the effects of their decision to change their surnames.
The grant of the petitions in these two cases was the presence of reasonable or
compelling grounds.
In Oshita, the Court recognized the tangible animosity most Filipinos had during that
time against the Japanese as a result of World War II, in addition to the fact of therein
petitioners election of Philippine citizenship.
In Alfon, the Court granted the petition:

1. Since the petitioner had been known since childhood by a name different from her
registered name; and
2. She had not used her registered name in her school records and voter’s registration
records; thus, denying the petition would only result to confusion.
The Court in Calderon granted the petition for change of name filed by a mother in
behalf of her illegitimate minor child.
Petitioner: He does not have to reach the age of majority to petition for change of
name.
In Calderon the petition was granted due to paramount consideration to the best
interests of the minor.
Presently, the only reason for the dropping of his middle name is convenience.
How such change of name would make his integration into Singaporean society easier
and convenient is not clearly established.
That the continued use of his middle name would cause confusion and difficulty does
not constitute proper and reasonable cause to drop it. (?)
In addition, petitioner is only a minor.
It is best that the matter of change of his name be left to his judgment and discretion
when he reaches the age of majority.
Republic v. Cagandahan, 565 SCRA 72 (2008)
Respondent has simply let nature take its course and has not taken unnatural steps
to arrest or interfere with what he was born with.
He has already ordered his life to that of a male.
Nature has instead taken its due course to reveal more fully his male characteristics.
Court will not force respondent to undergo treatment and to take medication in order
to fit the mold of a female.
To him belongs the human right to the “pursuit of happiness” and of “health.”
To him should belong the primordial choice of what courses of action to take along the
path of his sexual development and maturation.
In the absence of evidence to show that classifying respondent as a male will harm
other members of society who are equally entitled to protection under the law, the
Court affirms as valid and justified the respondents position and his personal
judgment of being a male.
In so ruling we do no more than give respect to

1. The diversity of nature; and
2. How an individual deals with what nature has handed out.
Life is already difficult for the ordinary person.
As for Respondents Change of Name
A change of name is not a matter of right but of judicial discretion
Only to be exercised:
1. In the light of the reasons adduced; and

2. The consequences that will follow.
The trial courts grant of respondent’s change of name from Jennifer to Jeff implies a
change of a feminine name to a masculine name.
Considering the consequence that respondent’s change of name merely recognizes

his preferred gender, change of name is allowed
Such a change will conform with the change of the entry in his birth certificate from
female to male.
Rommel Silverio v. Republic, 537 SCRA 373 (2007)
Petitioner filed a petition for the change of his first name and sex in his birth
certificate in the RTC.
The petition, docketed as SP Case.
The trial court rendered a decision in favor of petitioner.
Petitioner filed the present petition solely for the purpose of making his birth records
compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief asked for.
The court opined that:

1. Granting the petition would be more in consonance with the principles of justice
and equity;
2. With his sexual re-assignment, petitioner now possesses the physique of a female.
3. Petitioner’s misfortune to be trapped in a man’s body is not his own doing and
should not be in any way taken against him.
4. No harm, injury or prejudice will be caused to anybody or the community in
granting the petition.
5. Granting the petition would bring the much-awaited happiness on the part of the
petitioner and her fiancé and the realization of their dreams.
6. No evidence was presented to show any ground to deny the petition despite due
notice and publication.
Petitioner OSG: There is no law allowing the change of entries in the birth certificate
by reason of sex alteration.
Court of Appeals: There is no law allowing the change of either name or sex in the
certificate of birth on the ground of sex reassignment through surgery.
Petitioner: The change of his name and sex in his birth certificate is allowed under
Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA
9048.
The petition lacks merit.
A Person’s First Name Cannot Be changed on the Ground of Sex “Reassignment”
The State has an interest in the names for purposes of identification.
A change of name is a privilege, not a right.
Petitions for change of name are controlled by statutes.
No person can change his name or surname without judicial authority. (Article 376 of
the Civil Code)

This Civil Code was amended by RA 9048 (Clerical Error Law): Authority to Correct
Clerical or Typographical Error and Change of First Name or Nickname
No entry in a civil register shall be changed or corrected without a judicial order,

except for clerical or typographical errors and change of first name or nickname
which can be corrected or changed by the concerned city or municipal civil registrar
or consul general in accordance with the provisions of this Act and its implementing
rules and regulations.
RA 9048 now governs the change of first name.
It vests the power and authority to entertain petitions for change of first name to the
city or municipal civil registrar or consul general concerned.
The law excludes the change of first name from Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the Civil Registry).
Until and unless an administrative petition for change of name is first filed and
subsequently denied.
It likewise lays down the corresponding venue, form and procedure.
In sum, the remedy and the proceedings regulating change of first name are primarily
administrative in nature, not judicial.
Grounds for change of first name:

1. First name or nickname is ridiculous, tainted with dishonor or extremely difficult
to write or pronounce;
2. The new first name or nickname has been habitually and continuously used and
he has been publicly known in the community; or
3. To avoid confusion. (RA 9048)
Petitioner’s basis in praying for the change of his first name was his sex
reassignment.
A change of name does not alter one’s legal capacity or civil status.
RA 9048 does not sanction a change of first name on the ground of sex reassignment.
Rather than avoiding confusion, changing the first name may only create grave
complications in the civil registry and the public interest.
Before change is allowed:

1. Compelling reason must justify such change; and
2. There will be prejudice by the use of his true and official name.
He failed to show, or even allege, any prejudice that he might suffer as a result of
using his true and official name.
The petition in the RTC for the change of first name was not within that court’s
primary jurisdiction.
The petition should have been filed with the local civil registrar, assuming it
could be legally done.
The proper remedy was administrative under RA 9048.
Proper venue: Office of the Civil Registrar of Manila where his birth certificate is
kept.
The use of his true and official name does not prejudice him at all.

No law allows the change of entry in the birth certificate as to sex on the ground
of sex reassignment.
The determination of a person’s sex appearing in his birth certificate is a legal issue
and the court must look to the statutes.
No “entry” in the civil register shall be changed or corrected without a judicial

order. (Article 412 of the Civil Code)
Clerical or typographical error refers to a mistake committed in the performance of

clerical work in writing, copying, transcribing or typing an entry in the civil register
that is harmless and innocuous, such as misspelled name or misspelled place of birth
or the like, which is visible to the eyes or obvious to the understanding, and can be
corrected or changed only by reference to other existing record or records: Provided,
however, That no correction must involve the change of nationality, age, status
or sex of the petitioner.
Change of sex is not a mere clerical or typographical error.
It is a substantial change for which the applicable procedure is Rule 108.
The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108
of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code.
No interpretation can justify the conclusion that it covers the correction on the ground
of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or error from."
To change means "to replace something with something else of the same kind or with
something that serves as a substitute."
As no law recognizes sex reassignment, the determination of a person’s sex made at

the time of his or her birth, if not attended by error, is immutable.
While one succeeded in altering appearance through the intervention of modern

surgery, no law authorizes the change of sex in the civil registry.
Neither may entries in the birth certificate as to first name or sex be changed on
the ground of “equity.”
RTC: Grant of the petition was in consonance with the principles of justice and equity.
RTC: Allowing the petition would cause no harm, injury or prejudice to anyone.
This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and public
policy consequences.
The petition was but petitioner’s first step towards his eventual marriage to his male
fiancé.
Marriage, one of the most sacred social institutions, is a special contract of permanent
union between a man and a woman.
To grant the changes will substantially alter the laws on marriage and family relations.
It will allow the union of a man with another man who has undergone sex
reassignment (a male-to-female post-operative transsexual).

PARTIES TO CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL
REGISTRY
Ceruila v. Delantar, 477 SCRA 13 (2005)
Is the petition for annulment and cancellation of the birth certificate of Rosilyn an
ordinary civil action or a special proceeding?
The petition does not question the fact of birth of Rosilyn.
All matters assailing any entry in the birth certificate, including date of birth, fall
under Rule 108 which governs cancellation or correction of entries in the Civil
Registry.
The petition, alleging falsification in the material entries in the certificate, is properly
considered as a special proceeding. (Section 3(c), Rule 1 and Rule 108 of the Rules of
Court)
Did the Ceruilas comply with the requirements of Rule 108?
We answer in the negative.
Parties
When cancellation or correction of an entry in the civil register is sought, the civil
registrar and all persons who have or claim any interest which would be affected
thereby shall be made parties to the proceeding. (Sec. 3, Rule 108)
Not only the civil registrar but also all other interested persons who would be affected
by the cancellation or correction proceeding must be made parties thereto.
Unless all possible indispensable parties were duly notified of the proceedings, the
same shall be considered as falling much too short of the requirements of the rules.
(Republic vs. Benemerito)
Here, no party could be more interested in the cancellation of Rosilyns birth certificate
than Rosilyn herself.
Her filiation, legitimacy, and date of birth are at stake.
Petitioners: Even though Rosilyn was never made a party to the proceeding, it is
enough that her name was included in the caption of the petition.
Such reasoning is without merit.
In Labayo-Rowe vs. Republic where the mother sought changes in the entries of her
two children’s birth certificates:
Only the OSG was notified, representing the Republic as the only respondent.
The proceeding, which is summary in nature, is short of what is required in cases

where substantial alterations are sought.
Aside from the OSG, all other indispensable parties should have been made
respondents, to wit:
1. Father;
2. Child;
3. Paternal grandparents, as their hereditary rights would be affected thereby.

Presently, only the Civil Registrar of Manila was served summons, who, did not
participate in the proceedings.
This alone is not sufficient to comply with the requirements laid down by the rules.
Petitioners: The lack of summons on Rosilyn was cured by the publication of the
order of the trial court for hearing for three consecutive weeks in a newspaper of
general circulation.
We do not agree.
Summons must still be served.
Not for the purpose of vesting the courts with jurisdiction, but to comply with the
requirements of fair play and due process.
This is proper; to afford the person concerned the opportunity to protect her interest.
There were instances that even though an interested party was not impleaded, such
defect was cured by compliance with Sec. 4, Rule 108 on publication.
However, earnest efforts were made by the petitioners in bringing to court all possible
interested parties.
Such is not the case at bar.
Petitioners did not make any effort to summon the Solicitor General.
Rosilyn was never made a party at all to the proceedings seeking the cancellation of
her birth certificate.
It does not take much to deduce the real motive of petitioners in seeking the
cancellation of Rosilyns birth certificate and in not making her, her guardian, the
DSWD, and the Republic of the Philippines, through the Solicitor General, parties to
the petition.
Rosilyn was involved in the rape case against Romeo Jalosjos, where her father, as
appearing in the birth certificate, was said to have pimped her into prostitution.
In the criminal case, the defense contended that the birth certificate of Rosilyn should
not have been considered by the trial court to prove Rosilyn’s age and thus find basis
for statutory rape, as said birth certificate has been cancelled by the RTC of Manila, in
the special proceeding antecedent to this petition.
Their efforts in this regard, however, were thwarted when the CA overturned Branch
38s decision, and the Court, in G.R. Nos. 132875-76 considered other evidence as
proof of Rosilyns age at the time of the commission of the crime.
There is no merit is saying that because of the false entries in the birth certificate of
Rosilyn, the same is void ab initio, hence should be nullified under Art. 5 of the Civil
Code, or should be nullified by the CA in exercise of its peremptory power to declare
null and void the said certificate.
DECLARATION OF ABSENCE AND DEATH
Manuel v. People, 476 SCRA 461 (2005)
Petitioner: Prosecution failed to prove the second element of the felony, i.e., that the
marriage has not been legally dissolved or, in case his/her spouse is absent, the
absent spouse could not yet be presumed dead under the Civil Code.

Petitioner: When he married Gandalera in 1996, the first spouse had been absent for
21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as
a matter of law.
One who has been absent for seven years, whether or not he/she is still alive, shall
be presumed dead for all purposes except for succession. (Article 390 of the Civil Code)
Petitioner: The presumptive death of the absent spouse arises by operation of law
upon the satisfaction of two requirements:
1. The specified period; and
2. The present spouses reasonable belief that the absentee is dead.
Petitioner: Under Article 41 of the Family Code, the presumptive death had arisen by
operation of law, as the two requirements of Article 390 of the Civil Code are present.
Petitioner: He should thus be acquitted of the crime of bigamy.
Petitioner: Except for the period of absences provided for in Article 390 of the Civil
Code, the legal presumptions remains valid and effective.
Nowhere in the Civil Code does it require that there must first be a judicial declaration
of death before the rule on presumptive death would apply.
Petitioner: The requirement of a judicial declaration of presumptive death under

Article 41 of the Family Code is only a requirement for the validity of the subsequent
or second marriage.
The petition is denied for lack of merit.
Art. 349: Bigamy
The penalty of prision mayor shall be imposed upon any person who shall contract a
second or subsequent marriage before the former marriage has been legally dissolved,
or before the absent spouse has been declared presumptively dead by means of a
judgment rendered in the proper proceedings.
The phrase “or before the absent spouse had been declared presumptively dead by
means of a judgment rendered in the proper proceedings” was incorporated in the RPC
because the drafters were of the impression that in consonance with the civil law
which provides for the presumption of death after an absence of a number of
years, the judicial declaration of presumed death like annulment of marriage should
be a justification for bigamy.
Viada avers that a third element of the crime is that the second marriage must be
entered into with fraudulent intent.
Cuello Calon is of the view that there are only two elements of bigamy: (1) the
existence of a marriage; and (2) the celebration of a second marriage.
It does not matter whether the first marriage is void or voidable because such
marriages have juridical effects until lawfully dissolved by a court of competent
jurisdiction.
In Domingo v. Court of Appeals and Mercado v. Tan, under the Family Code of the
Philippines, the judicial declaration of nullity of a “previous” marriage is a
defense.
Albert is of the same view as Viada and declared that there are 3 elements of bigamy:
1. An undissolved marriage;
2. A new marriage; and
3. Fraudulent intention constituting the felony of the act.

This last element is not stated in Article 349, because it is incorporated in the
principle antedating all codes, that, where there is no willfulness there is no crime.
There is no willfulness if the subject believes that the former marriage has been
dissolved.
This must be supported by very strong evidence, and if this be produced, the act shall
be deemed not to constitute a crime.
Thus, a person who contracts a second marriage in the reasonable and well-founded
belief that his first wife is dead, because of the many years that have elapsed since
he has had any news of her whereabouts, in spite of his endeavors to find her,
cannot be deemed guilty of the crime of bigamy, because there is no fraudulent
intent which is one of the essential elements of the crime.
Here, the first marriage was not judicially declared a nullity; hence, the marriage is
presumed to subsist.
Petitioner married the private complainant in 1996, long after the effectivity of the
Family Code.
The petitioner is presumed to have acted with malice or evil intent when he married
the private complainant.
It was the burden of the petitioner to prove that when he married the private
complainant in 1996, he was of the well-grounded belief that his first wife was already
dead.
He should have adduced in evidence a decision of a competent court declaring

the presumptive death of his first wife.
This is required by Article 349 of the RPC, in relation to Article 41 of the Family Code.
Such judicial declaration also constitutes proof that the petitioner acted in good faith.
The petitioner, however, failed to discharge his burden.
The requirement of judicial declaration is also for the benefit of the State.
Under Article II, Section 12 of the Constitution, the State shall protect and strengthen
the family as a basic autonomous social institution.
In a real sense, there are three parties to every civil marriage; two willing spouses and
an approving State.
To sustain a second marriage and to vacate a first because one of the parties believed
the other to be dead would make the existence of the marital relation determinable,
not by certain extrinsic facts, but by the subjective condition of individuals.
Article 349 of the RPC has made the dissolution of marriage dependent on a judgment
of the presumptive death of the absent spouse, not upon the personal belief of parties.
The petitioner’s sole reliance on Article 390 of the Civil Code is misplaced.
After an absence of seven years, it being unknown whether or not, the absentee still
lives, he shall be presumed dead for all purposes, except for those of succession. (Art.
390)
The presumption of death of the spouse who had been absent for seven years is
created by law and arises without any necessity of judicial declaration.

However, Article 41 of the Family Code requires that for the purpose of contracting the
subsequent marriage, declaration of presumptive death of the absentee must be
instituted.
With the Family Code, the period of 7 years was reduced to 4 consecutive years.
Before the spouse present may contract a subsequent marriage, he or she must
institute summary proceedings for the declaration of the presumptive death.
For bigamous marriage to be considered valid, these elements must concur, viz.:
1. Absence for 4 or 2 consecutive years;
2. Well-founded belief that the absent spouse is already dead; and
3. Unlike the old rule, a judicial declaration of presumptive death. (Armas v.
Calisterio)
Declaration of presumptive death is designed to:

1. Enable the spouse present to contract a valid second marriage; and
2. For the acquittal of one charged with bigamy.
Such provision was designed to harmonize civil law and Article 349 of the RPC.
Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to
require judicial decree of dissolution or judicial declaration of absence but even with
such decree, a second marriage in good faith will not constitute bigamy.
He posits that a second marriage, if not illegal, even if it be annullable, should not give
rise to bigamy.
Former Justice Luis B. Reyes, on the other hand, was of the view that in the case of an
absent spouse who could not yet be presumed dead according to the Civil Code, the
spouse present cannot be charged and convicted of bigamy in case he/she contracts a
second marriage.
Former Justice Alicia Sempio-Diy: Such judgment is proof of the good faith; thus, the
present spouse, he cannot be convicted of the crime. As explained by:
Dean Ernesto L. Pineda: Judicial declaration of presumptive death is now authorized

for purposes of remarriage.
For institution of a summary proceeding for declaration of presumptive death of the

absentee, the ordinary rules of procedure in trial will not be followed.
Affidavits will suffice.
Dean Pineda further states that with the new law, there is a need to institute a
summary proceeding for the declaration of the presumptive death of the absentee,
otherwise, there is bigamy.
According to Retired Supreme Court Justice Florenz D. Regalado: Where an absentee

spouse is believed to be dead, there must be a judicial declaration of presumptive
death, which could then be made only in the proceedings for the settlement of his
estate.
Before such declaration, remarriage is bigamous even if done in good faith.

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NOTES OF THE

DARK ART MASTER

The declaration of heirship must be made in an administration proceeding, and not in

A special proceeding is a remedy by which a party seeks to establish a status, a right,

The case should be dismissed for lack of cause of action.

Special Proceeding and Summary Proceeding under Article 41 of the Family

Republic v. Court of Appeals, 458 SCRA 200 (2005)

A special proceeding is a remedy by which a party seeks to establish a status, a

The petition merely seeks for a declaration of the presumptive death.

SPECIAL PROCEEDINGS FOCUS NOTE |

Ergo, the petition for that purpose is a summary proceeding.

In special proceeding, the filing of a Record on Appeal is necessary.

Jurisdiction of Probate Court

GRACE F. MUNSAYAC-DE VILLA, LILY F. MUNSAYAC-SUNGA and ROY MUNSAYAC

The long-standing principle is that a probate court exercises limited jurisdiction.

The determination of whether a property should be included in the inventory is within

Such determination is only provisional -- not conclusive -- in character and subject to

GR: A probate court may not decide a question of title or ownership.

SPECIAL PROCEEDINGS FOCUS NOTE |

IN THE MATTER OF THE INTESTATE ESTATE OF DECEASED ISMAEL REYES, THE

The jurisdiction of the probate court merely relates to:

The question of ownership is as a rule, an extraneous matter which the Probate

In determining whether a property should or should not be included in the inventory,

Rule: RTC acting as a probate court exercises limited jurisdiction.

SINFOROSO PASCUAL v. PONCIANO S. PASCUAL, ET AL.,

This procedure is optional to the parties concerned.

SPECIAL PROCEEDINGS FOCUS NOTE |

Liu v. Loy, 405 SCRA 316 (2003)

Necessity of court approval of sales

Deceased can transfer only the net estate.

Sale of an immovable property belonging to an estate of a decedent, in a special

As a rule, no sale or transfer of registered land shall be made by an executor or by an

SPECIAL PROCEEDINGS FOCUS NOTE |

DETERMINATION OF THE TITLE OF THE PROPERTIES PART OF THE ESTATE

Pacioles v. Chuatoco-Ching, 466 SCRA 90 (2005)

Rationale: Such court exercises special and limited jurisdiction.

The adjudication is merely incidental and provisional.

When a question arises as to ownership of property alleged to be a part of the estate of

SPECIAL PROCEEDINGS FOCUS NOTE |

Recourse is to file a separate action with a court of general jurisdiction.

CLAIMS AGAINST AN ESTATE OF A PARTNER

CLAIMS FOR LEASE RENTALS AFTER THE DEATH

Chan v. Court of Appeals, 424 SCRA 127 (2004)

Petitioners denied owing private respondent the rentals claimed.

Private respondent pointed to their (principal-original-lessee and agent) continuous

SALE OF REAL PROPERTY SHOULD HAVE THE CONSENT OF THE PROBATE

LEO C. ROMERO and DAVID AMANDO C. ROMERO v. HON. COURT OF APPEALS,

Petitioners believe that the above rule is subject to certain exceptions.

SPECIAL PROCEEDINGS FOCUS NOTE |

Section 3, Rule 87 bars petitioners from filing the present action.

However, this authority is necessarily included in its capacity as a probate court.

Petitioners do not pose issues pertaining to title or ownership.

The following are within the jurisdiction of the probate court:

Heirs of Belinda Dahlia A. Castillo v. Lacuata-Gabriel, 474 SCRA 747 (2005)

SPECIAL PROCEEDINGS FOCUS NOTE |

The appointment of a “special” administrator lies entirely in the discretion of

The order of preference in the appointment of a regular administrator under Section

Such appointment is temporary.

It subsists only until a regular administrator is appointed.

A special administrator is a representative of a decedent appointed by the probate

The principal object of appointment of temporary administrator is to preserve the

When there is delay in granting letters of administration by any cause including an

SPECIAL PROCEEDINGS FOCUS NOTE |

The discretion to appoint a special administrator lies in the probate court.