SPECIAL PROCEEDINGS | B2015 ACADEMICS COMMITTEE

SPECIAL
PROCEEDINGS
An Introduction and a Reviewer

B2015 ACADEMICS COMMITTEE

Special Proceedings Reviewer Operations
SPECIAL PROCEEDINGS | B2015 ACADEMICS COMMITTEE

“Never give in. Never give in.

Never, never, never, never—in nothing, great or small, large or petty—never give in,
except to convictions of honour and good sense.”

Sir Winston Churchill

This is a labor of love.

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TABLE OF CONTENTS QUESTIONS .......................................................................... 25

JURISPRUDENCE ................................................................... 26
INTRODUCTION ............................................................................... 6
DUTIES AND POWERS OF EXECUTOR/ ADMINISTRATOR .............. 27
RULE 75, SECS. 1 AND 2.......................................................... 6
RULE 81 ................................................................................ 27
QUESTIONS ............................................................................ 6
RULE 83 ................................................................................ 27
JURISPRUDENCE ..................................................................... 7
RULE 84 ................................................................................ 28
NON-PROBATE MODES OF SETTLEMENT ........................................ 8
RULE 85 ................................................................................ 28
RULE 1, SEC. 3(C) .................................................................... 8
RULE 87 ................................................................................ 29
SETTLEMENT OF ESTATE OF DECEASED PERSON ........................ 8
RULE 89 ................................................................................ 30
QUESTIONS ............................................................................ 8
QUESTIONS .......................................................................... 32
SUMMARY SETTLEMENT OF ESTATES ......................................... 9
JURISPRUDENCE ................................................................... 34
RULE 74, SEC. 1 ...................................................................... 9
CLAIMS AGAINST THE ESTATE ....................................................... 35
QUESTIONS ............................................................................ 9
RULE 86 ................................................................................ 35
AFFIDAVIT OF SELF-ADJUDICATION .......................................... 10
RULE 88 ................................................................................ 37
QUESTIONS .......................................................................... 11
RULE 3, SEC. 16, 20 .............................................................. 38
PARTITION ................................................................................ 11
RULE 39, SEC. 7 .................................................................... 39
QUESTIONS .......................................................................... 11
QUESTIONS .......................................................................... 39
JUDICIAL PARTITION ................................................................. 11
JURISPRUDENCE ................................................................... 40
RULE 69 ................................................................................ 11
DISTRIBUTION AND CLOSURE OF ESTATE ..................................... 42
EXTRAJUDICIAL PARTITION ....................................................... 13
RULE 90 ................................................................................ 42
QUESTIONS .......................................................................... 13
QUESTIONS .......................................................................... 43
JURISPRUDENCE ................................................................... 13
JURISPRUDENCE ................................................................... 43
INITIATION OF PROBATE PROCEEDINGS ....................................... 14
ESCHEATS ...................................................................................... 44
JURISDICTION AND VENUE ....................................................... 15
RULE 91 ................................................................................ 44
BP 129, SECS. 19(4), SECS. 33(1) .......................................... 15
QUESTIONS .......................................................................... 45
RULE 73, SEC. 1 .................................................................... 15
JURISPRUDENCE ................................................................... 45
QUESTIONS .......................................................................... 15
GUARDIANSHIP ............................................................................. 45
PETITION FOR THE ALLOWANCE OF WILL ................................. 16
RULE 92 ................................................................................ 45
RULE 75 ................................................................................ 16
RULE 93 ................................................................................ 45
RULE 76 ................................................................................ 16
RULE 94 ................................................................................ 46
RULE 77 ................................................................................ 18
RULE 95 ................................................................................ 47
QUESTIONS .......................................................................... 19
RULE 96 ................................................................................ 47
PETITION FOR LETTERS TESTAMENTARY .................................. 20
RULE 97 ................................................................................ 48
RULE 79 ................................................................................ 20
FAMILY CODE, ARTS. 222-227 .............................................. 49
PETITION FOR LETTERS OF ADMINISTRATION .......................... 21
QUESTIONS .......................................................................... 51
JURISPRUDENCE ................................................................... 21
RULE ON GUARDIANSHIP OF MINORS [SC A.M. NO. 03-02-05] 51
APPOINTMENT AND REMOVAL OF ................................................ 23
BREAKDOWN OF SC A.M. NO. 03-02-05 .............................. 51
EXECUTOR OR ADMINISTRATOR ................................................... 23
QUESTIONS .......................................................................... 53
RULE 78 ................................................................................ 23
JURISPRUDENCE ................................................................... 54
RULE 80 ................................................................................ 24
TRUSTEES ...................................................................................... 55
RULE 82, SECS 2-4 ................................................................ 24

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RULE 98 ................................................................................ 55 FAMILY HOME ............................................................................... 97

CIVIL CODE, ARTS. 1440, 1443-1446 .................................... 56 FAMILY CODE, ARTS. 152-162 .............................................. 97
QUESTIONS .......................................................................... 56 NIRC ..................................................................................... 98
JURISPRUDENCE ................................................................... 57 JURISPRUDENCE ................................................................... 99
ADOPTION ..................................................................................... 57 ABSENTEES .................................................................................... 99
FAMILY CODE ARTS 183-193 ................................................ 57 RULE 107 .............................................................................. 99
QUESTIONS .......................................................................... 60 JURISPRUDENCE ................................................................. 100
JURISPRUDENCE ................................................................... 60 APPEALS IN SPECIAL PROCEEDINGS ............................................ 101
DISTINCTIONS BETWEEN RA 8552 AND RA 8043 ...................... 61 RULE 109 ............................................................................ 101
PROCEEDINGS FOR THE HOSPITALIZATION OF INSANE PERSONS . 64 JURISPRUDENCE ................................................................. 101
RULE 101 .............................................................................. 64
JURISPRUDENCE ................................................................... 65
THE WRIT OF HABEAS CORPUS (WHC) .......................................... 65
RULE 102 .............................................................................. 65
BP 129, SECS. 21(1), SEC. 39 ................................................. 67
QUESTIONS .......................................................................... 69
THE WRIT OF AMPARO (WOA) ...................................................... 70
QUESTIONS .......................................................................... 72
THE WRIT OF HABEAS DATA (WHD) .............................................. 72
QUESTIONS .......................................................................... 73
JURISPRUDENCE ................................................................... 74
DIAGRAM DISTINCTION BETWEEN WRITS OF HABEAS CORPUS,
AMPARO AND DATA: ................................................................ 79
CHANGE OF NAME & CORRECTION/CANCELLATION OF ENTRIES IN
THE CIVIL REGISTRY ....................................................................... 85
RULE 103 .............................................................................. 85
RULE 108 .............................................................................. 85
CIVIL CODE, ART. 412 ........................................................... 86
CHANGE OF NAME [RULE 103, RULES OF COURT] .................... 86
CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL
REGISTRY [RULE 108, RULES OF COURT] .................................. 87
CLERICAL ERROR ACT ................................................................ 87
QUESTIONS .......................................................................... 87
JURISPRUDENCE ................................................................... 92
JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR
CHILDREN ...................................................................................... 95
RULE 105 .............................................................................. 95
FAMILY CODE, ARTS. 172, 173, AND 175 ............................. 95
QUESTIONS .......................................................................... 96
JURISPRUDENCE ................................................................... 96

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SPECIAL PROCEEDINGS | B2015 ACADEMICS COMMITTEE

SPECIAL
PROCEEDINGS
An Introduction and a Reviewer

B2015 ACADEMICS COMMITTEE

SPECIAL PROCEEDINGS REVIEW OPERATIONS

SOURCES:

Basic Special Proceedings by Professor Antonio R. Bautista

Special Proceedings: A Foresight to the Bar Exam by Atty. Gemy Lito L. Festin
Class Notes

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INTRODUCTION Civil Actions Special Proceedings

Generally commenced by ap-
plication, petition or special
RULE 75, SECS. 1 AND 2 form of pleading.

Sec. 1. Subject matter of special proceedings. - Rules of spe- Significant Common Feature in Special Proceedings
cial proceedings are provided for in the following cases: 1. State’s overriding interest
a. Settlement of estate of deceased persons; 2. Matter is not controversy purely between private per-
b. Escheat; sons
c. Guardianship and custody of children; 3. Examples of state interest:
d. Trustees; a. In settlement of estate – Expeditious and fair distri-
e. Adoption; bution of estate’s residue after asset liquidation and
f. Rescission and revocation of adoption; debt payment.
g. Hospitalization of insane persons; b. Name – Identification
h. Habeas corpus; c. Adoption – Observation of adoption procedure, es-
i. Change of name; pecially as regards qualifications and disqualifica-
j. Voluntary dissolution of corporations; tions of adopter and adoptee
k. Judicial approval of voluntary recognition of minor nat-
ural children; Applicability of Procedure for Ordinary Actions in Special
l. Constitution of family home; Proceedings.
m. Declaration of absence and death; Applicable as far as practicable [citing §2, Rule 72]
n. Cancellation or correction of entries in the civil registry.
Number of Special Proceedings
Sec. 2. Applicability of rules of civil actions. - In the absence Reduced to 10 [citing §1, Rule 72]:
of special provisions, the rules provided for in ordinary ac- 1. Settlement of estate of deceased persons
tions shall be, as far as practicable, applicable in special pro- 2. Escheat
ceedings. 3. Guardianship and custody of children
4. Trustees
Special Proceeding – an application to establish the status or 5. Adoption
right of a party or a particular fact or any remedy other than 6. Hospitalization of insane persons
an ordinary suit in a court of justice. 7. Habeas corpus
8. Change of name
General Definition of Special Proceedings [citing Natcher v. 9. Declaration of absence and death
CA, 2001] 10. Cancellation or correction of entries in the civil registry
1. Application or proceeding
2. To establish: Other matters formerly Special Proceedings
a. Party’s status or right a. Rescission and revocation of adoption
b. Or particular fact Now in 2002 Rule on Adoption
b. Voluntary dissolution
Nature of Special Proceedings Now governed by §119, Corporation Code
Generally: In rem c. Judicial approval of voluntary recognition of minor nat-
Therefore, jurisdiction over all interested parties is acquired ural children
by: Obsolete because there are no more natural chil-
1. Newspaper publication dren under the Family Code
2. Of the notice of hearing d. Constitution of Family Home
Obsolete because deemed automatically consti-
Except: Habeas corpus tuted under the Family Code

Civil Actions Special Proceedings QUESTIONS

One by which a party sues
another for the enforce-
ment or protection of a
right, or the prevention of
A remedy by which a party
seeks to establish a status, a Q:
right, or a particular fact.
A:
Are the list of subject matters under Sec. 1, Rule 72 ex-
clusive?
No. Any petition which has for its main purpose the es-
tablishment of a status, right, or a particular fact may
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be included as special proceeding (e.g. petition for dec-
laration of marriage).
Q: Are liquidation proceedings ordinary actions or special
proceedings?
A: A petition for liquidation should be classified as a spe-
cial proceeding and not an ordinary action.
1. It does not seek the enforcement or protection of a
right nor the prevention or redress of a wrong
against a party.
2. It does not pray for affirmative relief for injury aris-
ing from a party’s wrongful actor omission nor state
a cause of action that can be enforced against any
person [Pacific Banking Corp. Employees Organiza-
tion v. CA].
Q: Is a proceeding before the Shari’a district court against
a deceased person an ordinary civil action or a special
proceeding?
A: The same is a special proceeding.
Q: Are the rules in civil actions applicable in special pro-
ceedings?
A: In the absence of special provisions, the rules pro-
vided for in ordinary actions shall be, as far as practi-
cable, applicable in special proceedings. [Sec 2, Rule
72, RoC]
Q: An heir/oppositor in a probate proceeding filed a mo-
tion to remove the administrator on the grounds of ne-
glect of duties as administrator and absence from the
country. On his part the heir/oppositor served written
interrogatories to the administrator preparatory to
presenting the latter as witness. The administrator ob-
jected, insisting that the modes of discovery apply only
to ordinary civil actions, not special proceedings. Rule
on the matter.
A: I will deny the objection. As provided under Sec. 2, Rule
72, in the absence of special provisions, the rules pro-
vided for in ordinary actions, shall be, as far as practi-
cable, applicable in special proceedings. Hence, the
modes of discovery under the RoC are applicable to
special proceedings.
JURISPRUDENCE
NATCHER V. CA
SUMMARY: Upon the death of his 1st wife, Graciano entered
into an extrajudicial settlement of his wife’s estate with his 6
children adjudicating and dividing a parcel of land among
themselves. Griaciano then donated a large portion of his
share to his children. The portion that remained in his name
was divided into 2 lots, the bigger of which was sold to Patri-
cia Natcher, his 2nd wife. The 6 children filed a complaint for
reconveyance and annulment of title against Patricia, alleg-
ing fraud and misrepresentation. The RTC ruled that alt-
hough the deed of sale was a nullity, it may be regarded as
an extension of advance inheritance of Patricia as a compul-
sory heir. The CA reversed, ruling that the RTC had no juris-
diction to rule on the advance inheritance. The SC affirmed.
DOCTRINE: An action is a formal demand of one’s right in a
court of justice in the manner prescribed by the court or by
the law. It is the method of applying legal remedies according
to definite established rules. A special proceeding may be de-
fined as an application or proceeding to establish the status
or right of a party or a particular fact. Usually, no formal
pleadings are required unless the statute expressly so pro-
vides; the remedy is granted generally upon an application
or motion.
PACIFIC BANKING CORP. EMPLOYEES ORGANIZA-
TION V. COURT OF APPEALS
SUMMARY: The PaBC was placed under liquidation. The Un-
ion of such company and several stockholders filed claims
against the Liquidator. The RTC granted the complaints of the
Union and stockholders. The Liquidator filed a notice of ap-
peal after 15 days from receipt of the RTC orders. The RTC
judge denied the notice of appeal arguing that the action is
an ordinary action. Thus, the period for filing the notice of
appeal is only 15 days. The Liquidator argues that the pro-
ceeding is a special proceeding. Thus, the period for filing is
30 days from the receipt of the decision or final order.
DOCTRINE: Action is the act by which one sues another in a
court of justice for the enforcement or protection of a right,
or the prevention or redress of a wrong while special pro-
ceeding is the act by which one seeks to establish the status
or right of a party, or a particular fact. Hence, action is distin-
guished from special proceeding in that the former is a for-
mal demand of a right by one against another, while the lat-
ter is but a petition for a declaration of a status, right or fact.
Where a party litigant seeks to recover property from an-
other, his remedy is to file an action. Where his purpose is to
seek the appointment of a guardian for an insane, his remedy
is a special proceeding to establish the fact or status of insan-
ity calling for an appointment of guardianship. Considering
this distinction, a petition for liquidation of an insolvent cor-
poration should be classified a special proceeding and not an
ordinary action. Such petition does not seek the enforce-
ment or protection of a right nor the prevention or redress
of a wrong against a party. What it seeks is merely a declara-
tion by the trial court of the corporation's insolvency so that
its creditors may be able to file their claims in the settlement
of the corporation's debts and obligations. A liquidation pro-
ceeding resembles the proceeding for the settlement of
state of deceased persons under Rules 73 to 91 of the Rules
of Court.
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ALAN SHEKER VS. ESTATE OF ALICE SHEKER
SUMMARY: Alan Sheker is trying to collect money from the
Estate of Alice Sheker
DOCTRINE: The proper reading of Section 2, Rule 72 of the
Rules of Court is that special provisions under Part II of the
Rules of Court govern special proceedings. In the absence of
special provisions, the rules provided for in Part I of the Rules
governing ordinary civil actions shall be applicable to special
proceedings, as far as practicable. Another way to put it
would be that rules in ordinary actions may be applied in spe-
cial proceedings as much as possible and where doing so
would not pose an obstacle to said proceedings. However, if
there is a specific rule provided for governing a special pro-
ceeding, that rule will govern.
NON-PROBATE MODES OF SETTLEMENT
RULE 1, SEC. 3(C)
Sec. 3. Cases governed.
These Rules shall govern the procedure to be observed in ac-
tions, civil or criminal, and special proceedings.
c. A special proceeding is a remedy by which a party seeks
to establish a status, a right, or a particular fact.
Purpose of Settlement of Estate
Recognition of owner’s right to control disposition of prop-
erty even after death.
Rationale for Classifying Modes of Estate Settlement into
Probate and Non-Probate:
Some judicial modes of settlement involve court action but
do not have the formality of regular probate procedure.
Examples of these modes:
a. Judicial Partition
b. Summary Settlement of Estates of Small Value
More common modes of Non-Probate Settlement
a. Extra-Judicial Partition
b. Affidavit of Self-Adjudication by Sole Heir
SETTLEMENT OF ESTATE OF DECEASED
PERSON
Special Proceeding on the Settlement of Estate of Deceased
Person
1. Could be testate or intestate.
a. Where the deceased left no will, the proceeding shall
be intestate.
b. If there is a will, the proceeding is testate.
i. Probate of a will in this case is mandatory.
ii. This also takes precedence over intestate proceed-
ings.
Consequences of discovering a will in the course of intestate
proceedings.
Whether the intestate proceeding already commenced
should be discontinued and a new proceeding under a sepa-
rate number and title should be constituted is entirely a mat-
ter of form and lies within the sound discretion of the court.
In no matter does it prejudice the substantial rights of any of
the heirs or creditors. [Reynoso v. Santiago].
It has been held that the probate of the will is mandatory. It
is anomalous that the estate of a person who died testate
should be settle in an intestate proceeding. Therefore, the
intestate case should be consolidated with the testate pro-
ceeding and the judge assigned shall continue hearing the
two cases [Roberts v. Leonidas]
If in the course of the intestate proceedings, it is found out
that the decedent had left a last will, proceedings for the pro-
bate of the latter should replace the intestate proceedings
even if at that stage, an administrator had already been ap-
pointed, the latter being required to render a final account
and turn over the estate to his possession to the executor
subsequently appointed. This, however, is understood to be
without prejudice that the proceeding shall continue as in-
testacy [Uriate v. CFI of Negros].
However, the mere discovery of a document purporting to
be the last will and testament of the decedent after the ap-
pointment of an administrator and assumption that the de-
cedent died intestate does not, however, ipso facto nullify
the letters of administration already issued or even authorize
their revocation until the will had been proved and allowed
[Advincula v. Teodoro]
QUESTIONS
Q: What is the nature of the proceedings of settlement
of the estate?
A: The settlement of a decedent’s estate is a proceeding
in rem which is binding against the whole world. All
persons having interest in the subject matter involved,
whether they were notified or not, are equally bound
[Philippine Savings Bank v. Lantin].
Q: Can the probate court issue writs of execution?
A: No. As a rule, the probate court cannot issue writs of
execution because its orders usually refer to the adju-
dication of claims against the estate which the execu-
tor or administrator may satisfy without the need of
executor processes.
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Exceptions:
1. To satisfy the contributive shares of the devisees,
legatees and heirs on possession of the dece-
dent’s assets [Rule 88, Sec. 6].
2. To enforce payment of the expenses of partition
[Rule 90, Sec. 2].
3. To satisfy the cost when a person is cited for ex-
amination in probate proceedings [Rule 142, Sec.
13].
SUMMARY SETTLEMENT OF ESTATES
This is an archaic rule, considering the Philippine peso’s de-
valuation.
RULE 74, SEC. 1
Sec. 1. Extrajudicial settlement by agreement between
heirs. - If the decedent left no will and no debts and the heirs
are all of age, or the minors are represented by their judicial
or legal representatives duly authorized for the purpose, the
parties may, without securing letters of administration, di-
vide the estate among themselves as they see fit by means
of a public instrument filed in the office of the register of
deeds, and should they disagree, they may do so in an ordi-
nary action of partition. If there is only one heir, he may ad-
judicate to himself the entire estate by means of an affidavit
filed in the office of the register of deeds. The parties to an
extrajudicial settlement, whether by public instrument or by
stipulation in a pending action for partition, or the sole heir
who adjudicates the entire estate to himself by means of an
affidavit shall file, simultaneously with and as a condition
precedent to the filing of the public instrument, or stipula-
tion in the action for partition, or of the affidavit in the office
of the register of deeds, a bond with the said register of
deeds, in an amount equivalent to the value of the personal
property involved as certified to under oath by the parties
concerned and conditioned upon the payment of any just
claim that may be filed under Section 4 of this rule. It shall be
presumed that the decedent left no debts if no creditor files
a petition for letters of administration within two (2) years
after the death of the decedent.
Distinction between extrajudicial settlement and summary
settlement of estates of small value
Extrajudicial Settlement Summary Settlement
Requires court interven- Requires court intervention
tion. by summary proceeding
The value of the estate is Applicable where the gross
immaterial. value of the estate is
P10,000.00. The amount is
jurisdictional.
Extrajudicial Settlement Summary Settlement
Allowed only in intestate Allowed in both testate and
succession. intestate estates.
Proper when there are no Available even if there are
outstanding debts of the debts.
estate at the time of the
settlement.
Instituted by agreement of Instituted by any interested
all heirs. party and even by a credi-
tor of the estate, without
the consent of all the heirs.
Requisites of a valid extrajudicial settlement
1. The decedent died intestate;
2. The estate has no outstanding debts at the time of the
settlement;
3. The heirs are all of age, or the minors are represented
by their judicial guardians or legal representatives;
4. The settlement is made in a public instrument, stipula-
tion or affidavit duly filed with the register of deed; and
5. The fact of such judicial settlement must be published in
a newspaper of general circulation in the province once
a week for three consecutive weeks.
Summary settlement of estates of small value
It is a summary proceeding for the settlement of the estate
of a deceased person whether he died testate or intestate if
the gross value of the estate is P10,000.00 without need of
an appointment of an administrator or executor.
QUESTIONS
Q: What is the rule with respect to the estate left by the
decedent?
A: The general rule is that when a person dies leaving
property, the same should be judicially administered
and the competent court should appoint a qualified ad-
ministrator, in the order established in Sec, 6, Rule 78,
in case the deceased left no will, or in case he had left
one, should he fail to name an executor therein [Utulo
v. Pasion vda. De Garcia].
Exceptions:
1. Extrajudicial settlement [Sec. 1];
If the decedent left no will and no debts and the
heirs are all of legal age, the parties may, with-
out securing letters of administration, divide
the estate among themselves by means of pub-
lic instrument or by stipulation in a pending ac-
tion for partition and shall file a bond with the
register of deeds in an amount equivalent to
the value of the personal property involved as
certified to under oath by the parties con-
cerned. The fact of extrajudicial settlement
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shall be published in a newspaper of general
circulation once a week for the three consecu-
tive weeks in the province.
2. Summary settlement of estates of small value [Sec.
2].
Whenever the gross value of the estate of a de-
ceased person, whether he dies testate or in-
testate, does not exceed P10,000.00, and that
fact is made to appear to the RTC having juris-
diction of the estate by the petition of an inter-
ested person and upon hearing, which shall be
held not less than one month nor more than
three months from the date of the last publica-
tion of a notice which shall be published once a
week for three consecutive weeks in a newspa-
per of general circulation in the province, and
after such notice to interested persons as the
court may direct, the court may proceed sum-
marily, without the appointment of an execu-
tor or administrator, to settle the estate.
Q: xxx 2. Nestor dies intestate in 2003, leaving no debts.
How may his estate be settled by his heirs who are of
legal age and have legal capacity? Explain.
A: Rule 74, Sec. 1 is applicable in this case. If the dece-
dent left no will and no debts, as in the case of Nestor,
and the heirs are all of legal age, his heirs may, without
securing letters of administration, divide the estate
among themselves by means of public instrument or
by stipulation in a pending action for partition and
shall file a bond with the register of deeds in an
amount equivalent to the value of the personal prop-
erty involved as certified to under oath by the parties
concerned. The fact of extrajudicial settlement shall
be published in a newspaper of general circulation
once a week for three consecutive weeks in the prov-
ince.
Q: When does the presumption that the decedent left no
debts arise?
A: It shall be presumed that the decedent left no debts if
no creditor files a petition for letters of administration
within two (2) years after the death of the decedent.
Q: Rene died intestate, leaving several heirs and substan-
tial property here in the Philippines.
1. Assuming Rene left no debts, as counsel for
Rene’s heirs, what steps would you suggest to
settle Rene’s estate in the least expensive man-
ner?
2. Assuming Rene left only one heir and no debt, as
counsel for Rene’s lone heir, what steps would
you suggest?
A: To settle Rene’s estate in the least expensive manner,
an extrajudicial settlement of estate by agreement of
the parties should be made through a public instru-
ment to be filed with the register of deeds together
with a bond in an amount equivalent to the value of
the personal property involved as certified under oath
by the parties concerned and conditioned upon pay-
ment of any just claim that may be filed within 2 years
y an heir or other person unduly deprived of partici-
pation in the state.
Q: Assuming that the value of Rene’s estate does not ex-
ceed P10,000.00, what remedy is available to obtain a
speedy settlement of his estate?
A: The remedy available is to proceed to undertake a
summary settlement of estate of small value [Rule 74,
Sec.2]. The hearing shall not be held not less than one
(1) month nor more than three (3) months from the
date of last publication of a notice which shall be pub-
lished once a week for three consecutive weeks in a
newspaper of general circulation in the province, and
after such other notice to interested persons as the
court may direct, the court may proceed summarily,
without the appointment of an executor or adminis-
trator to settle the estate.
Q: If a person who had no knowledge or had not partici-
pated in the extrajudicial settlement, is he bound
thereby by reason of constructive notice of publica-
tion?
A: No. Publication in this case does not constitute con-
structive notice. Extrajudicial settlement of Estates
[Sec. 1, Rule 74] is an ex parte proceeding, and the rule
states that persons who do not participate or had no
notice of extrajudicial settlement will not be bound
thereby, and contemplates a notice that has been sent
out or issued before any deed of settlement or parti-
tion is agreed upon, and not after such an agreement
has already been executed [Benatiro v. Heirs of
Cuyos].
Q: If the claimant is a minor or an incapacitated person,
what is the period to file a claim?
A: If on the date of the expiration of the period of two (2)
years prescribed in the preceding section the person
authorized to file a claim is a minor or mentally inca-
pacitated, or is in prison or outside the Philippines, he
may present his claim within one (1) year after such
disability is removed [Sec. 5, Rule 74]
AFFIDAVIT OF SELF -ADJUDICATION
It is an affidavit required by Rule 74, Sec. 1 to be executed by
the sole heir of a deceased person in adjudicating to himself
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the entire estate left by the decedent. It is filed with the Reg-
istry of Deeds [Festin].
The rule provides that the sole heir who adjudicates the en-
tire estate to himself by means of an affidavit shall file, sim-
ultaneously with and as a condition precedent to the filing of
the public instrument, or stipulation in the action for parti-
tion, or of the affidavit in the office of the register of deeds,
a bond with the said register of deeds, in an amount equiva-
lent to the value of the personal property involved as certi-
fied to under oath by the parties concerned and conditioned
upon the payment of any just claim that may be filed under
Sec. 4 of this rule.
QUESTIONS
Q: A, claiming to be an illegitimate child of the deceased
D, instituted an intestate proceeding to settle the es-
tate of the latter. He also prayed that he be appointed
administrator of said estate. S, the surviving spouse,
opposed the petition and A’s application to be ap-
pointed the administrator on the ground that he was
not the child of her deceased husband D. The court,
however, appointed A as the administrator of said es-
tate. Subsequently, S, claiming to be the sole heir of
D, executed an affidavit of adjudication, adjudicating
unto herself the entire estate of her deceased hus-
band D. S sold the entire estate to X. Was the action
of S in adjudicating the entire estate of her late hus-
band to herself legal?
A: No. Under the RoC, an affidavit of self-adjudication is
allowed only if the affiant is the sole heir of the de-
ceased. In this case, it appears that there is someone
who claims to be an heir. The fact that there is a pend-
ing judicial proceeding for the settlement of the estate
would suggest that there is doubt as to whether she is
indeed the sole heir to the estate.
PARTITION
QUESTIONS
Q: A, claiming to be an illegitimate child of the deceased
D, instituted an intestate proceeding to settle the es-
tate of the latter. He also prayed that he be appointed
administrator of said estate. S, the surviving spouse,
opposed the petition and A’s application to be ap-
pointed the administrator on the ground that he was
not the child of her deceased husband D. The court,
however, appointed A as the administrator of said es-
tate. Subsequently, S, claiming to be the sole heir of
D, executed an affidavit of adjudication, adjudicating
unto herself the entire estate of her deceased hus-
band D. S sold the entire estate to X. Was the action
of S in adjudicating the entire estate of her late hus-
band to herself legal?
A: No. Under the RoC, an affidavit of self-adjudication is
allowed only if the affiant is the sole heir of the de-
ceased. In this case, it appears that there is someone
who claims to be an heir. The fact that there is a pend-
ing judicial proceeding for the settlement of the estate
would suggest that there is doubt as to whether she is
indeed the sole heir to the estate.
JUDICIAL PARTITION
RULE 69
Section 1. Complaint in action for partition of real estate.
A person having the right to compel the partition of real es-
tate may do so as provided in this Rule, setting forth in his
complaint the nature and extent of his title and an adequate
description of the real estate of which partition is demanded
and joining as defendants all other persons interested in the
property.
Sec. 2. Order for partition, and partition by agreement
thereunder.
If after the trial the court finds that the plaintiff has the right
thereto, it shall order the partition of the real estate among
all the parties in interest. Thereupon the parties may, if they
are able to agree, make the partition among themselves by
proper instruments of conveyance, and the court shall con-
firm the partition so agreed upon by all the parties, and such
partition, together with the order of the court confirming the
same, shall be recorded in the registry of deeds of the place
in which the property is situated.
A final order decreeing partition and accounting may be ap-
pealed by any party aggrieved thereby.
Sec. 3. Commissioners to make partition when parties fail
to agree.
If the parties are unable to agree upon the partition, the
court shall appoint not more than three (3) competent and
disinterested persons as commissioners to make the parti-
tion, commanding them to set off to the plaintiff and to each
party in interest such part and proportion of the property as
the court shall direct.
Sec. 4. Oath and duties of commissioners.
Before making such partition, the commissioners shall take
and subscribe an oath that they will faithfully perform their
duties as commissioners, which oath shall be filed in court
with the other proceedings in the case. In making the parti-
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tion, the commissioners shall view and examine the real es-
tate, after due notice to the parties to attend at such view
and examination, and shall hear the parties as to their pref-
erence in the portion of the property to be set apart to them
and the comparative value thereof, and shall set apart the
same to the parties in lots or parcels as will be most advan-
tageous and equitable, having due regard to the improve-
ments, situation and quality of the different parts thereof.
Sec. 5. Assignment or sale of real estate by commissioners.
When it is made to appear to the commissioners that the real
estate, or a portion thereof, cannot be divided without prej-
udice to the interests of the parties, the court may order it
assigned to one of the parties willing to take the same, pro-
vided he pays to the other parties such amounts as the com-
missioners deem equitable, unless one of the interested par-
ties asks that the property be sold instead of being so as-
signed, in which case the court shall order the commissioners
to sell the real estate at public sale under such conditions and
within such time as the court may determine.
Sec. 6. Report of commissioners; proceedings not binding
until confirmed.
The commissioners shall make a full and accurate report to
the court of all their proceedings as to the partition, or the
assignment of real estate to one of the parties, or the sale of
the same. Upon the filing of such report, the clerk of court
shall serve copies thereof on all the interested parties with
notice that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire. No
proceeding had before or conducted by the commissioners
shall pass the title to the property or bind the parties until
the court shall have accepted the report of the commission-
ers and rendered judgment thereon.
Sec. 7. Action of the court upon commissioners’ report.
Upon the expiration of the period of ten (10) days referred
to in the preceding section, or even before the expiration of
such period but after the interested parties have filed their
objections to the report or their statement of agreement
therewith, the court may, upon hearing, accept the report
and render judgment in accordance therewith; or, for cause
shown, recommit the same to the commissioners for further
report of facts; or set aside the report and appoint new com-
missioners; or accept the report in part and reject it in part;
and may make such order and render such judgment as shall
effectuate a fair and just partition of the real estate, or of its
value, if assigned or sold as above provided, between the
several owners thereof.
Sec. 8. Accounting for rent and profits in action for partition.
In an action for partition in accordance with this Rule, a party
shall recover from another his just share of rents and profits
received by such other party from the real estate in question,
and the judgment shall include an allowance for such rents
and profits.
Sec. 9. Power of guardian in such proceedings.
The guardian or guardian ad litem of a minor or person judi-
cially declared to be incompetent may, with the approval of
the court first had, do and perform on behalf of his ward any
act, matter, or thing respecting the partition of real estate,
which the minor or person judicially declared to be incompe-
tent could do in partition proceedings if he were of age or
competent.
Sec. 10. Costs and expenses to be taxed and collected.
The court shall equitably tax and apportion between or
among the parties the costs and expenses which accrue in
the action, including the compensation of the commission-
ers, having regard to the interests of the parties, and execu-
tion may issue therefor as in other cases.
Sec. 11. The judgment and its effect; copy to be recorded in
registry of deeds.
If actual partition of property is made, the judgment shall
state definitely, by metes and bounds and adequate descrip-
tion, the particular portion of the real estate assigned to each
party, and the effect of the judgment shall be to vest in each
party to the action in severalty the portion of the real estate
assigned to him. If the whole property is assigned to one of
the parties upon his paying to the others the sum or sums
ordered by the court, the judgment shall state the fact of
such payment and of the assignment of the real estate to the
party making the payment, and the effect of the judgment
shall be to vest in the party making the payment the whole
of the real estate free from any interest on the part of the
other parties to the action. If the property is sold and the sale
confirmed by the court, the judgment shall state the name of
the purchaser or purchasers and a definite description of the
parcels of real estate sold to each purchaser, and the effect
of the judgment shall be to vest the real estate in the pur-
chaser or purchasers making the payment or payments, free
from the claims of any of the parties to the action. A certified
copy of the judgment shall in either case be recorded in the
registry of deeds of the place in which the real estate is situ-
ated, and the expenses of such recording shall be taxed as
part of the costs of the action.
Sec. 12. Neither paramount rights nor amicable partition af-
fected by this Rule.
Nothing in this Rule contained shall be construed so as to
prejudice, defeat, or destroy the right or title of any person
claiming the real estate involved by title under any other per-
son, or by title paramount to the title of the parties among
whom the partition may have been made; nor so as to re-
strict or prevent persons holding real estate jointly or in com-
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mon from making an amicable partition thereof by agree-
ment and suitable instruments of conveyance without re-
course to an action.
Sec. 13. Partition of personal property.
The provisions of this Rule shall apply to partitions of estates
composed of personal property, or of both real and personal
property, in so far as the same may be applicable.
EXTRAJUDICIAL PARTITION
Notes
1. Common
2. Favored by state policy for being speedy and inexpen-
sive [citing McMicking v. Sy Conbieng, 1912]
3. Optional
4. Heirs may institute probate/administration proceedings
even if decedent left no will [citing Arcillas v. Martejo,
1968]
5. Allows for adequate ascertainment of true extent of es-
tate [citing Fereira v. CA, 1989]
6. Generally, should be in public instrument filed with
Register of Deeds [citing De Garces v. Broce, 1968]
a. But may still be enforceable as among the parties
per se even if oral.
b. Public instrument merely evidences the partition.
7. Not covered by Statute of Frauds because it is not ex-
actly a conveyance of real property, but rather, a con-
firmation or ratification of title or right [citing Vda. De
Reyes v. CA, 1991]
8. 2-year statute of limitations does not apply to heir who
had no knowledge of and consent to the EJP if EJP as-
sailed on Fraud [citing Pedrosa v. CA, 2001]
9. Remedies of Excluded Heir:
a. Seek probate proceedings and demand payment of
share (w/in 2 years from registration of Register of
Deeds) [citing Pedrosa v. CA, 2001]
b. Sue for rescission or annulment based on lesion
within 4 years. [CC 1098, 1100, 1104, 1105]
c. Reinvidicatory action against co-heirs for recovery
of shares based on constructive or implied trust.
[citing Lajom v. Viola, 1942]
i. Ex.: Some heirs promised to give legitimate
share of co-heir but did not.
ii. within 10 years of discovery of fraud
1. If Torrens titles secured, 4 years from dis-
covery of fraud (registration, as construc-
tive notice) [citing Gerona v. De Guzman,
1964]
2. Discovery = Knowledge of facts which
would put ordinary prudent man on in-
quiry, which, if followed up, would result in
discovery [citing Villamor v. CA, 1988]
3. If no adverse possession among partition-
ing heirs, does not prescribe [citing Vil-
lamor v. CA, 1988]
QUESTIONS
Q: The rule bars distributes or heirs from objecting to an
extrajudicial partition after two (2) years from such
partition. Is this rule applicable to persons who had no
knowledge of it?
A: No. Sec. 4, Rule 74 barring distributes or heirs from
objecting to an extrajudicial partition after the expira-
tion of two years from such, is applicable only to: (1)
persons who have participated or taken part or had
notice of the extrajudicial partition; and, in addition,
(2) when the provisions of Sec. 1, Rule 74, have been
strictly complied with [Sampio v. CA].
JURISPRUDENCE
CEASE V. CA
SUMMARY: Forrest Cease established Tiaong Milling Com-
pany. His children became stockholders. When the charter of
the company expired, no liquidation was made. After the
death of Forrest, some of his children demanded liquidation,
while others wanted reincorporation. The latter group then
incorporated FL Cease Company and made it a trustee of the
properties of Tiaong Milling. The first group initiated special
proceedings for settlement of the estate and another civil
case for recovery of the properties. The RTC granted the pe-
titions. The CA and SC affirmed, ruling that (1) the dismissal
of the administration proceedings was proper, even if or-
dered in the decision for the civil case, in view of the policy
favoring partition, rather than administration, (2) the prop-
erties of Tiaong Milling are properties of Forrest, and (3) the
issue of whether the judgment of the RTC is interlocutory or
not has become moot.
DOCTRINE: The general rule of partition that an appeal will
not lie until the partition or distribution proceedings are ter-
minated will not apply where appellant claims exclusive own-
ership of the whole pro-perty and denies the adverse party's
right to any partition.
PEREIRA V. COURT OF APPEALS
SUMMARY: Rita Nagac, the sister of the deceased Andres de
Guzman Pereira, instituted a Special Proceeding before the
RTC of Bacoor, Cavite for the issuance of letters of admin-
istration in her favor pertaining to the estate of the de-
ceased. Rita Nagac alleged that she and Victoria Pereira, the
wife of the deceased, are the only surviving heirs of the de-
ceased. Victoria opposed and filed her motion to dismiss
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Rita’s petition, alleging that there exists no estate of the de-
ceased for purposes of administration. The RTC ruled in favor
of Rita Nagac. The CA upheld the decision, holding Rita as ad-
ministratrix of the deceased’s estate. The Supreme Court
held that in issuing letters of administration, the RTC was not
justified. The Court saw no good reason for not resorting to
an action for partition.
DOCTRINE: The general rule is that when a person dies leav-
ing property, the same should be judicially administered and
the competent court should appoint a qualified administra-
tor, in the order established in Section 6, Rule 78, in case the
deceased left no will, or in case he had left one, should he fail
to name an executor therein.
However, if the decedent left no will and no debts and the
heirs are all of legal age, the parties may, without securing
letters of administration, divide the estate among them-
selves by means of public instrument or by stipulation in a
pending action for partition. While Section 1 of Rule 74 al-
lows the heirs to divide the estate among themselves as they
may see fit, or to resort to an ordinary action for partition,
the said provision does not compel them to do so if they have
good reasons to take a different course of action. However,
recourse to an administration proceeding even if the state
has no debts is sanctioned only if the heirs have good reasons
for not resorting to an action for partition.
PORTUGAL V PORTUGAL-BELTRAN
SUMMARY: Jose Portugal contracted two marriages in his
lifetime and had two sets of children. The siblings of Portugal
waived their rights, interests, and participation over a parcel
of land located in Caloocan in favor of Portugal. Portugal died
intestate and his daughter from his first marriage, Leonila
Portugal-Beltran (respondent in this case) executed an Affi-
davit of Adjudication by Sole Heir of Estate of Deceased Per-
son adjudicating to herself the parcel of land located in
Caloocan. Portugal’s second wife and their children (peti-
tioners in this case) filed a complaint for annulment of the
Affidavit of Adjudication against respondent. In the said com-
plaint, it was alleged that Portugal-Beltran was not related to
the deceased and is therefore not entitled to inherit the par-
cel of land in Caloocan. The trial court dismissed the case for
lack of cause of action on the ground that the right and status
of petitioners as putative heirs had not been established be-
fore a probate court and lack of jurisdiction because their
status and rights as putative heirs must first be established
in a special proceeding. The CA affirmed the RTC. The SC re-
versed and ruled that to require a special proceeding is im-
practical considering that the only property involved is the
parcel of land in Caloocan. The status and rights of the puta-
tive heirs may be proved in the present civil action.
DOCTRINE: The general rule is that where the adverse parties
are putative heirs to the estate of a decedent or parties to
the special proceedings for its settlement and the special
proceedings are pending, or if there are no special proceed-
ings filed but there is, under the circumstances of the case, a
need to file one, then the determination of, among other is-
sues, heirship should be raised and settled in said special pro-
ceedings. Where special proceedings had been instituted but
had been finally closed and terminated, however, or if a pu-
tative heir has lost the right to have himself declared in the
special proceedings as co-heir and he can no longer ask for
its re-opening, then an ordinary civil action can be filed for
his declaration as heir in order to bring about the annulment
of the partition or distribution or adjudication of a property
or properties belonging to the estate of the deceased.
AVELINO V. CA
SUMMARY: Ma. Socorro Avelino filed a petition for the issu-
ance of letters of administration of the estate of Antonio
Avelino, Sr., her father. This was opposed by her mother and
her siblings who filed their opposition by filing a motion to
convert the said judicial proceedings to an action for judicial
partition. The RTC granted the motion which was affirmed by
the CA. The SC agreed in the conversion of the case to one of
partition as it was available to the heirs under Sec. 1, Rule 74.
DOCTRINE:
General Rule: When a (1) dies intestate, or (2a) if testate
failed to name an executor in his will, or (2b) executor so
named is incompetent or (2c) refuses the trust or (2d) fails to
furnish the bond required by the ROC, then the decedent’s
estate shall be judicially administered and the competent
court shall appoint a qualified administrator in the order es-
tablished in Sec. 6, Rule 78
Exceptions: Sec. 1, Rule 74 (Extrajudicial settlement by agree-
ment between heirs) and Sec. 2, Rule 74 (Summary settle-
ment of estates of small value)
The heirs succeed immediately to all of the rights and prop-
erties of the deceased at the moment of the latter’s death.
Sec. 1, Rule 74 allows heirs to divide the estate among them-
selves without need of delay and risks of being dissipated.
When a person dies without leaving pending obligations, his
heirs are not required to submit the property for judicial ad-
ministration, nor apply for the appointment of an adminis-
trator by the court.
Where the more expeditious remedy of partition is available
to the heirs, then the heirs or the majority of them cannot be
compelled to submit to administration proceedings
INITIATION OF PROBAT E PROCEEDINGS
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Definition of Probate Mode of Settlement [citing Uriarte v. whether the causes of action arose out of the same or differ-
CFI of Negros Occidental, 1970] ent transactions;
a. Special proceeding
b. Effecting the distribution RULE 73, SEC. 1
c. Of the estate of a deceased person
d. Whether in accordance with the law on intestate suc-
Sec. 1. Where estate of deceased person settled. - If the de-
cession, or the deceased’s will.
cedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, his will shall be proved,
Brief Overview of Probate Proceedings
or letters of administration granted, and his estate settled, in
a. Newspaper publication of notice to heirs
the Court of First Instance in the province in which he resides
b. Appointment of executor/administrator
at the time of his death, and if he is an inhabitant of a foreign
c. Filing, allowance and disallowance of claims against es-
country, the Court of First Instance of any province in which
tate
he had estate. The court first taking cognizance of the settle-
d. Payment of taxes, debts, legacies, and distribution of
ment of the estate of a decedent, shall exercise jurisdiction
residue
to the exclusion of all other courts. The jurisdiction assumed
e. Closure
by a court, so far as it depends on the place of residence of
the decedent, or of the location of his estate, shall not be
Nature of Probate Proceedings [citing Solivio v. CA, 1990]
contested in a suit or proceeding, except in an appeal from
In rem, so publication of notice of hearing is constructive
that court, in the original case, or when the want of jurisdic-
notice to whole world.
tion appears on the record.

JURISDICTION AND VENUE Jurisdiction over Probate Proceedings

Under RA 7691, the question as to which court shall exercise
BP 129, SECS. 19(4), SECS. 33(1) jurisdiction over probate proceedings depend upon the gross
value of the estate of the decedent [Festin].
Section 19. Jurisdiction in civil cases. – Regional Trial Courts
shall exercise exclusive original jurisdiction: Location Value Court
Does not exceed Municipal Trial
(4) In all matters of probate, both testate and intestate, P400,000 Court
where the gross value of the estate exceeds One hundred Metro Manila Exceeds P400,000 Regional Trial
thousand pesos (P300,000.00) or, in probate matters in Court
Metro Manila, where such gross value exceeds Two hundred Does not exceed Municipal Trial
thousand pesos (400,000.00); P300,000 Courts, Metro-
politan Trial
Section 33. Jurisdiction of Metropolitan Trial Courts, Munic- Outside Metro Courts, Munici-
ipal Trial Courts and Municipal Circuit Trial Courts in civil Manila pal Circuit Trial
cases. – Metropolitan Trial Courts, Municipal Trial Courts, Courts
and Municipal Circuit Trial Courts shall exercise: Exceeds P300,000 Regional Trial
Court
(1) Exclusive original jurisdiction over civil actions and pro-
bate proceedings, testate and intestate, including the grant QUESTIONS
of provisional remedies in proper cases, where the value of
the personal property, estate, or amount of the demand Q: What is the importance of the decedent’s residence?
does not exceed One hundred thousand pesos (P300,000.00) A: The residence of the decedent at the time of his death
or, in Metro Manila where such personal property, estate, or is determinative of the venue of the proceeding. It is
amount of the demand does not exceed Two hundred thou- only where the decedent was a non-resident of the
sand pesos (P400,000.00) exclusive of interest damages of Philippines at the time of his death that venue lies in
whatever kind, attorney's fees, litigation expenses, and any province in which he had estate.
costs, the amount of which must be specifically alleged: Pro-
vided, That where there are several claims or causes of ac- Q: What is the meaning of the term “resides”?
tion between the same or different parties, embodied in the A: “Resides” should be viewed or understood in its pop-
same complaint, the amount of the demand shall be the to- ular sense, meaning, the personal, actual or physical
tality of the claims in all the causes of action, irrespective of habitation of a person, actual residence of place of

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abode. It signifies physical presence in a place and ac-
tual stay thereat. In this popular sense, the term
means merely residence, that is, personal residence,
not legal residence or domicile. Residence simply re-
quires bodily presence as an inhabitant in a given
place, while domicile required bodily presence in that
particular place and also an intention to make one’s
domicile. No particular length of time of residence is
required though; however, the residence must be
more than temporary [Garcia Fule v. CA].
Q: What is the rule on venue in judicial settlement of es-
tate of deceased person?
A: Rule 73 expressly declares that if the decedent is an
inhabitant of the Philippines at the time of his death,
whether a citizen or an alien, his will shall be proved,
or letters of administration be granted, and his estate
settled, in the RTC in the province in which he resides
at the time of his death, and if he is an inhabitant of a
foreign country, the RTC of any province in which he
had estate. The country first taking cognizance of the
settlement of the estate of the decedent, shall exer-
cise jurisdiction to the exclusion of all other courts.
In case the marriage is dissolved by the death of the
husband or wife, Sec. 2 of the said rule provides that
the community property shall be inventoried, admin-
istered, and liquidated, and the debts thereof paid, in
the testate or intestate proceedings of the deceased
spouse. If both spouses have died, the conjugal part-
nership shall be liquidated in the testate or intestate
proceedings of either.
Note: Take note of the changes made by R.A. 7691 on
jurisdiction.
PETITION FOR THE ALLOWANCE OF WILL
RULE 75
Sec. 1. Allowances necessary; Conclusive as to execution. -
No will shall pass either real or personal estate unless it is
proved and allowed in the proper court. Subject to the right
of appeal, such allowance of the will shall be conclusive as to
its due execution. chanrobles virtua law library
Sec. 2. Custodian of will to deliver. - The person who has cus-
tody of a will shall, within twenty (20) days after he knows of
the death of the testator, deliver the will to the court having
jurisdiction, or to the executor named in the will.
Sec. 3. Executor to present will and accept or refuse trust. -
A person named as executor in a will shall, within twenty (20)
days after he knows of the death of the testator, or within
twenty (20) days after knows that he is named executor if he
obtained such knowledge after the death of the testator,
present such will to the court having jurisdiction, unless the
will has reached the court in any other manner, and shall,
within such period, signify to the court in writing his ac-
ceptance of the trust or his refusal to accept it.
Sec. 4. Custodian and executor subject to fine for neglect. -
A person who neglects any of the duties required in the two
last preceding sections without excuse satisfactory to the
court shall be fined not exceeding two thousand pesos.
Sec. 5. Person retaining will may be committed. - A person
having custody of a will after the death of the testator who
neglects without reasonable cause to deliver the same, when
ordered so to do, to the court having jurisdiction, may be
committed to prison and there kept until he delivers the will.
RULE 76
Sec. 1. Who may petition for the allowance of will. - Any ex-
ecutor, devisee, or legatee named in a will, or any other per-
son interested in the estate, may, at any time after the death
of the testator, petition the court having jurisdiction to have
the will allowed, whether the same be in his possession or
not, or is lost or destroyed.
The testator himself may, during his lifetime, petition the
court for the allowance of his will.
Sec. 2. Contents of petition. - A petition for the allowance of
a will must show, so far as known to the petitioner:
a. The jurisdictional facts;
b. The names, ages, and residences of the heirs, legatees,
and devisees of the testator or decedent;
c. The probable value and character of the property of the
estate;
d. The name of the person for whom letters are prayed;
e. If the will has not been delivered to the court, the name
of the person having custody of it.
b. But no defect in the petition shall render void the allow-
ance of the will, or the issuance of letters testamentary
or of administration with the will annexed.
Sec. 3. Court to appoint time for proving will. - Notice
thereof to be published. When a will is delivered to, or a pe-
tition for the allowance of a will is filed in, the court having
jurisdiction, such court shall fix a time and place for proving
the will when all concerned may appear to contest the allow-
ance thereof, and shall cause notice of such time and place
to be published three (3) weeks successively, previous to the
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time appointed, in a newspaper of general circulation in the
province.
But no newspaper publication shall be made where the peti-
tion for probate has been filed by the testator himself.
Sec. 4. Heirs, devisees, legatees, and executors to be noti-
fied by mail or personally. - The court shall also cause copies
of the notice of the time and place fixed for proving the will
to be addressed to the designated or other known heirs, leg-
atees, and devisees of the testator resident in the Philippines
at their places of residence, and deposited in the post office
with the postage thereon prepaid at least twenty (20) days
before the hearing, if such places of residence be known. A
copy of the notice must in like manner be mailed to the per-
son named as executor, if he be not be petitioner; also, to
any person named as co-executor not petitioning, if their
places of residence be known. Personal service of copies of
the notice at least ten (10) days before the day of hearing
shall be equivalent to mailing.
If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs.
Sec. 5. Proof at hearing. - What sufficient in absence of con-
test. At the hearing compliance with the provisions of the last
two preceding sections must be shown before the introduc-
tion of testimony in support of the will. All such testimony
shall be taken under oath and reduced to writing. If no per-
son appears to contest the allowance of the will, the court
may grant allowance thereof on the testimony of one of the
subscribing witnesses only, if such witness testify that the
will was executed as is required by law.
In the case of a holographic will, it shall be necessary that at
least one witness who knows the handwriting and signature
of the testator explicitly declare that the will and the signa-
ture are in the handwriting of the testator. In the absence of
any such competent witness, and if the court deem it neces-
sary, expert testimony may be resorted to.
Sec. 6. Proof of lost or destroyed will. - Certificate there-
upon. No will shall be proved as a lost or destroyed will un-
less the execution and validity of the same be established,
and the will is proved to have been in existence at the time
of death of the testator, or is shown to have been fraudu-
lently or accidentally destroyed in the lifetime of the testator
without his knowledge, nor unless its provisions are clearly
and distinctly proved by at least two (2) credible witnesses.
When a lost will is proved, the provisions thereof must be
distinctly stated and certified by the judge, under the seal of
the court, and the certificate must be filed and recorded as
other wills are filed and recorded.
Sec. 7. Proof when witnesses do not reside in province. - If
it appears at the time fixed for the hearing that none of the
subscribing witnesses resides in the province, but that the
deposition of one or more of them can be taken elsewhere,
the court may, on motion, direct it to be taken, and may au-
thorize a photographic copy of the will to be made and to be
presented to the witness on his examination, who may be
asked the same questions with respect to it, and to the hand-
writing of the testator and others, as would be pertinent and
competent if the original will were present.
Sec. 8. Proof when witnesses dead or insane or do not reside
in the Philippines. - If it appears at the time fixed for the
hearing that the subscribing witnesses are dead or insane, or
that none of them resides in the Philippines, the court may
admit the testimony of other witnesses to prove the sanity
of the testator, and the due execution of the will; and as ev-
idence of the execution of the will, it may admit proof of the
handwriting of the testator and of the subscribing witnesses,
or of any of them.
Sec. 9. Grounds for disallowing will. - The will shall be disal-
lowed in any of the following cases:
a. If not executed and attested as required by law;
b. If the testator was insane, or otherwise mentally incapa-
ble to make a will, at the time of its execution;
c. If it was executed under duress, or the influence of fear,
or threats;
d. If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some
other person for his benefit;
e. If the signature of the testator was procured by fraud or
trick, and he did not intend that the instrument should
be his will at the time of fixing his signature thereto.
Sec. 10. Contestant to file grounds of contest. - Anyone ap-
pearing to contest the will must state in writing his grounds
for opposing its allowance, and serve a copy thereof on the
petitioner and other parties interested in the estate.
Sec. 11. Subscribing witnesses produced or accounted for
where will contested. - If the will is contested, all the sub-
scribing witnesses, and the notary in the case of wills exe-
cuted under the Civil Code of the Philippines, if present in the
Philippines and not insane, must be produced and examined,
and the death, absence, or insanity of any of them must be
satisfactory shown to the court. If all or some of such wit-
nesses are present in the Philippines but outside the prov-
ince where the will has been filed, their deposition must be
taken. If any or all of them testify against the due execution
of the will, or do not remember having attested to it, or are
otherwise of doubtful credibility, the will may, nevertheless,
be allowed if the court is satisfied from the testimony of
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other witnesses and from all the evidence presented that the
will was executed and attested in the manner required by
law.
If a holographic will is contested, the same shall be allowed
if at least three (3) witnesses who know the handwriting of
the testator explicitly declare that the will and the signature
are in the handwriting of the testator; in the absence of any
competent witness, and if the court deem it necessary, ex-
pert testimony may be resorted to.
Sec. 12. Proof where testator petitions for allowance of hol-
ographic will. - Where the testator himself petitions for the
probate of his holographic will and no contest in filed, the
fact that he affirms that the holographic will and the signa-
ture are in his own handwriting, shall be sufficient evidence
of the genuineness and due execution thereof. If the holo-
graphic will is contested, the burden of disproving the genu-
ineness and due execution thereof shall be on the contest-
ant. The testator may, in his turn, present such additional
proof as may be necessary to rebut the evidence for the con-
testant.
Sec. 13. Certificate of allowance attached to proved will. -
To be recorded in the Office of Register of Deeds. If the court
is satisfied, upon proof taken and filed, that the will was duly
executed, and that the testator at the time of its execution
was of sound and disposing mind, and not acting under du-
ress, menace, and undue influence, or fraud, a certificate of
its allowance, signed by the judge, and attested by the seal
of the court shall be attached to the will and the will and cer-
tificate filed and recorded by the clerk. Attested copies of the
will devising real estate and of certificate of allowance
thereof, shall be recorded in the register of deeds of the
province in which the lands lie.
RULE 77
Sec. 1. Will proved outside Philippines may be allowed here.
- Wills proved and allowed in a foreign country, according to
the laws of such country, may be allowed, filed, and recorded
by the proper Court of First Instance in the Philippines.
Sec. 2. Notice of hearing for allowance. - When a copy of
such will and of the order or decree of the allowance thereof,
both duly authenticated, are filed with a petition for allow-
ance in the Philippines, by the executor or other person in-
terested, in the court having jurisdiction, such court shall fix
a time and place for the hearing, and cause notice thereof to
be given as in case of an original will presented for allowance.
Sec. 3. When will allowed, and effect thereof. - If it appears
at the hearing that the will should be allowed in the Philip-
pines, the court shall so allow it, and a certificate of its allow-
ance, signed by the judge, and attested by the seal of the
court, to which shall be attached a copy of the will, shall be
filed and recorded by the clerk, and the will shall have the
same effect as if originally proved and allowed in such court.
Sec. 4. Estate, how administered. - When a will is thus al-
lowed, the court shall grant letters testamentary, or letters
of administration with the will annexed, and such letters tes-
tamentary or of administration, shall extend to all the estate
of the testator in the Philippines. Such estate, after the pay-
ment of just debts and expenses of administration, shall be
disposed of according to such will, so far as such will may op-
erate upon it; and the residue, if any, shall be disposed of as
is provided by law in cases of estates in the Philippines be-
longing to persons who are inhabitants of another state or
country.
Probate or Allowance of Wills
It is the act of proving in a court a document purporting to
be the last will and testament of a certain deceased person
for the purpose of its official recognition, registration, and
carrying out its provision in so far as they are in accordance
with law [Black’s Law Dictionary].
Due Execution
1. The will was executed in accordance with the strict for-
malities of the law;
2. The testator was of sound and disposing mind at the
time of the execution of the will.
3. Consent is not vitiated by any duress, fear, or threats;
4. The will was not procured by any undue influence from
the beneficiary or by some other person for his benefit.
5. The signature of the testator is genuine.
“Such allowance of the will shall be conclusive as to its due
execution.”
The allowance of the will precludes any interested person
from questioning the due execution of the will but not the
intrinsic validity of its testamentary provisions. Matters re-
lating to intrinsic validity of the will are governed by substan-
tive law on inheritance and partition [Estate of Johnson].
Issues that may be brought up before the probate court
1. Determination of whether a property should be included
in the inventory [Munsayac De Villa v. CA].
2. Determination of who are the heirs of the decedent.
3. Validity of a waiver of hereditary rights.
4. The status of each heir.
5. All other matters incidental to the administration, set-
tlement and distribution of the estate.
Note: This is not an exclusive list.
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The exclusionary rule in probate proceedings
When a probate court first takes cognizance and jurisdiction
over the settlement of the estate of a deceased person, it
shall continue to exercise jurisdiction over the same to the
exclusion of other courts. Upon assumption, therefore, it
cannot thereafter be divested of such jurisdiction by the sub-
sequent acts of the parties as when tey enter into extrajudi-
cial partition or by filing another petition for settlement in a
proper court of concurrent jurisdiction [Festin].
Who may petition for the allowance of the will
1. Any executor, devisee, or legatee named in a will;
2. Or any person interested in the estate.
3. The testator himself may, during his lifetime, petition
the court for the allowance of his will.
“Person interested in the estate”
One who would be benefited by the estate such as an heir or
one who has a claim against the estate like a creditor [Su-
milang v. Ramagosa].
Jurisdictional facts of probate proceedings
1. Death of the decedent;
2. Residence at the time of his death in the province of
there the probate court is sitting;
3. If he is an inhabitant of a foreign country, his leaving his
estate in such province [Cuenco v. CA].
Nature of Probate Proceedings
It is in rem. Therefore, the notice by publication as a prereq-
uisite to the allowance of a will, is a constructive notice to
the whole world, and hen probate is granted the judgment is
binding upon everybody, even against the state. The probate
of a will having jurisdiction thereof is conclusive as to its due
execution and validity [Cuenco v. CA].
Requisites for proving a lost or destroyed will
1. Execution and validity of the will must be established;
2. The will must have been in existence at the time of death
of testator, or shown to have been fraudulently or acci-
dentally destroyed in the lifetime of the testator without
his knowledge;
3. The provisions are clearly and distinctly proved by at
least two credible witnesses.
When a lost will is proved, its provisions must be distinctly
stated and certified by the judge, under the seal of the court,
and the certificate must be filed and recorded as other wills
are filed and recorded.
QUESTIONS
Q: Is the allowance of a will necessary?
A: Yes. Rule 75, Sec. 1 states that no will shall pass ei-
ther real or personal estate unless it is proved and al-
lowed in the proper court.
Q: Is the probate of a will mandatory?
A: Yes, according to Baluyot v. Panio.
Q: Does a will have force and effect even if not pro-
bated?
A: No. Until admitted to probate, a will has no effect
and no right can be claimed thereunder [Pascual v.
CA].
Q: Can a separate petition for partition of the estate be
initiated pending the probate of the last will and tes-
tament by the court?
A: No. The will must first be probated.
Q: Is a decree of probate conclusive as to its due execu-
tion?
A: Yes, as per Rule 75, Sec. 1. Also, under Manahan v.
Manahan, a decree of probate is conclusive with re-
spect to the due execution of the will and cannot be
impugned on any grounds except that of fraud, in any
separate or independent action or proceeding.
Q: May a probate court pass upon the intrinsic validity of
a will?
A: No. In a special proceeding for the probate of a will,
the issue by and large is restricted to the extrinsic va-
lidity of the will, i.e. whether the testator, being of
sound mind, freely executed the will in accordance
with the formalities prescribed by law. As a rule, the
question of ownership is an extraneous matter which
the probate court cannot resolve with finality [Pastor
Jr. v. CA].
Q: Is estoppel applicable in probate proceedings?
A: No, since the presentation and the probate of a will
are required by public policy [Fernandez, et al v. Di-
magiba].
Q: Is a probate court a court of limited jurisdiction?
A: Yes. It may only determine and rule upon issues that
relate to settlement if the estate of the deceased per-
son such as the administration, liquidation and distri-
bution of the estate.
A probate court acts on matters pertaining to the es-
tate but never on the rights to property arising from
contract [Pio Barreto Realty Dev., Inc. v. CA].
Exceptions:
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The probate court may pass upon the question of title
to the property on the following:
1. The interested parties who are all heirs of the de-
ceased consent thereto and the interests of third
parties are not prejudiced;
2. In a provisional manner, to determine whether
said property should be included in or excluded
from the inventory, without prejudice to the final
determination of title in a separate action [Fes-
tin].
Where the determination by the probate court is
merely provisional, it cannot be the subject of execu-
tion, especially where the Torrens title to the property
is not in the decedent’s name but in others [Valera v.
Inserto].
If the interested parties are all heirs, or the question is
one of collation or advancement, or the parties con-
sent to assumption of jurisdiction by the probate
court and the rights of third persons are not impaired,
the probate court is competent to decide the question
of ownership [Coca, et al. v. Pangilinan, Munsayac-De
Villa v. CA].
Q: If a notarial will is found defective, will its probate be
denied?
A; Yes. A will whose attestation clause does not contain
the number of pages on which the will is written is fa-
tally defective. A will whose attestation clause is not
signed by the instrumental witnesses is fatally defec-
tive as well. A will which does not contain an acknowl-
edgment, but a mere jurat, is fatally defective. Any
one of these defects is sufficient to deny probate.
Note: Look at Arts. 805 and 806 of the Civil Code. Re-
view the case of Felix Azuela v. CA.
Q: What is the duty of a custodian of a will upon
knowledge of the death of the testator?
A: The person who has custody of a will shall, within
twenty (2) days after he knows the death of the testa-
tor, deliver the will to the court having jurisdiction, or
to the executor named in the will [Rule 75, Sec. 2].
Q: In relation to the preceding question, what about the
executor?
A: The executor must present the will to the court and
must accept or refuse the trust.
A person named as executor in a will shall, within
twenty (20) days after he knows the death of the tes-
tator, or within twenty (20) days after he knows that
he is named executor if he obtained such knowledge
after the death of the testator, present such ill to the
court having jurisdiction, unless the will has reached
the court in any other manner, and shall, within such
period, signify to the court in writing his acceptance of
the trust or his refusal to accept it [Rule 75, Sec. 3].
Q: Is probate of a will subject to prescription?
A: No. Such petition may be filed “at any time” and is re-
quired by public policy [Guevara v. Guevara].
Q: A will was probated in a foreign country. Must it be re-
probated in the Philippines?
A: Yes. A will proved and allowed in a foreign country
must be re-probated in the Philippines. If the dece-
dent owns properties in different countries, separate
proceedings must be had to cover the same [Rule 77,
Sec. 1].
Q: What must be proven in a re-probate proceeding?
A: (1) That the testator was domiciled in the foreign
country;
(2) That the will has been admitted to probate in such
country;
(3) That the foreign court was, under the laws of said
foreign country, a probate court with jurisdiction over
the proceedings;
(4) The law on probate pcocedure in said country
proof of compliance therewith;
(5) The legal requirements in said foreign country for
the valid execution of the will [Fleumer v. Hix].
Q: What are the effects of allowance of a will under Rule
77?
A: (1) The will shall be treated as if originally proved and
allowed in Philippine courts;
(2) Letters testamentary or administration with a will
annexed shall extend to all estates of the Philippines;
(3) After payment of just debts and expenses o admin-
istration, the residue of the estate shall be disposed of
as provided by law in cases of estates in the Philip-
pines belonging to persons who are inhabitants of an-
other state or country.
PETITION FOR LETTERS TESTAMENTARY
RULE 79
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Sec. 1. Opposition to issuance of letters testamentary; Sim-
ultaneous petition for administration. - Any person inter-
ested in a will may state in writing the grounds why letters
testamentary should not issue to the persons named therein
executors, or any of them, and the court, after hearing upon
notice, shall pass upon the sufficiency of such grounds. A pe-
tition may, at the same time, be filed for letters of admin-
istration with the will annexed.
Sec. 2. Contents of petition for letters of administration. - A
petition for letters of administration must be filed by an in-
terested person and must show, so far as known to the peti-
tioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, and the
names and residences of the creditors, of the decedent
(c) The probable value and character of the property of the
estate;
(d) The name of the person for whom letters of administra-
tion are prayed.
But no defect on the petition shall render void the issuance
of letters of administration.
Sec. 3. Court to set time for hearing. Notice thereof. - When
a petition for letters of administration is filed in the court
having jurisdiction, such court shall fix a time and place for
hearing the petition, and shall cause notice thereof to be
given to the known heirs and creditors of the decedent, and
to any other persons believed to have an interest in the es-
tate, in the manner provided in Sections 3 and 4 of Rule 76.
Sec. 4. Opposition to petition for administration. - Any inter-
ested person may, by filing a written opposition, contest the
petition on the ground of the incompetency of the person for
whom letters are prayed therein, or on the ground of the
contestant's own right to the administration, and may pray
that letters issue to himself, or to any competent person or
persons named in the opposition.
Sec. 5. Hearing and order for letters to issue. - At the hearing
of the petition, it must first be shown that notice has been
given as hereinabove required, and thereafter the court shall
hear the proofs of the parties in support of their respective
allegations, and if satisfied that the decedent left no will, or
that there is no competent and willing executor, it shall order
the issuance of letters of administration to the party best en-
titled thereto.
Sec. 6. When letters of administration granted to any appli-
cant. - Letters of administration may be granted to any qual-
ified applicant, though it appears that there are other com-
petent persons having better right to the administration, if
such persons fail to appear when notified and claim the issu-
ance of letters to themselves.
Letters Testamentary
It is an authority issued to an executor named in the will to
administer the estate.
Who may file opposition to issuance of letters testamentary
Any person interested in a will may state in writing the
grounds why letters testamentary should not issue to the
persons named therein as executors, or any of them.
PETITION FOR LETTERS OF ADMINISTRATION
Letters of Administration
It is an authority issued by the court to a competent person
to administer the estate of the deceased who died intes-
tate.
Who may file a petition for letters of administration
A petition for letters of administration must be filed by an
interested person.
Contents of the Petition
1. The jurisdictional facts;
2. The names, ages, and residences of the heirs, and the
names and residences of the creditors, of the dece-
dent;
3. The probable value and character of the property of
the estate;
4. The name of the person for whom letters of admin-
istration are prayed
Note: No defect on the petition shall render void the issu-
ance of letters of administration.
JURISPRUDENCE
VIRGINIA FULE V. PRECIOSA GARCIA
SUMMARY: Virginia filed a petition with the CFI of Laguna for
her to be appointed as special administratrix of the estate of
the decedent Amado Garcia. In her petition, she stated that
Amado Garcia was a property owner in Calamba, Laguna.
Preciosa, who was the surviving spouse of Amado, assailed
the appointment of Virginia as the special administratrix. She
alleged that Virginia was merely an illegitimate sister of the
decedent and not a successor. Hence, Virginia, not being a
interested party, cannot be a special administratrix. Preciosa
further alleged that CFI of Laguna was not a proper venue for
the petition, not being the last residence of the decedent.
Preciosa also filed a petition with the CFI of Quezon City to
have her declared as the administratrix. CA dismissed the
proceeding before CFI of Laguna. SC ruled that the proper
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venue was CFI of Quezon City and appointed Preciosa as the
special adminitratrix of Amado’s estate.
DOCTRINE: "Resides" should be viewed or understood in its
popular sense—the personal, actual or physical habitation of
a person, actual residence or place of abode. It signifies phys-
ical presence in a place and actual stay thereat. In this popu-
lar sense, the term means merely residence, that is, personal
residence, not legal residence or domicile. Residence simply
requires bodily presence as an inhabitant in a given place,
while domicile requires bodily presence in that place and
also an intention to make it one's domicile. No particular
length of time of residence is required though; however, the
residence must be more than temporary.
FIGURACION-GERILLA V. VDA DE FIGURACION
SUMMARY: One sibling returned from the US and claimed
her share in her father’s estate. Among other things, she filed
a complaint for partition. Her siblings argue that the estate
should first undergo settlement proceedings before partition
among the heirs could happen. They claim that an account-
ing of expenses chargeable to the estate was necessary for
such settlement. RTC: reliefs prayed for cannot be granted
without any prior settlement proceedings. CA: RTC upheld as
to the partition. SC: RTC, CA upheld as to the partition.
DOCTRINE: Where there remains an issue as to the expenses
chargeable to the estate, partition is inappropriate.
Partition is premature when ownership of the property is still
in dispute.
ARBOLARIO V. CA
SUMMARY: Spouses Anselmo and Macaria owns a lot which
was partitioned by their children in a declaration of Heirship.
Purificacion, the daughter of one of the spouse’s children
took possession of the portion of the lot allotted to her until
her death. When she died, her cousins executed a Declara-
tion of Heirship and Partition agreement. Turns out Purifica-
cion had half siblings with her father (the Arlbolarios). The
Arbolarios filed a civil case seeking the cancellation of title
alleging that the Declaration issued by the cousins were null
and void. RTC ruled in favor of Arbolarios. CA and SC re-
versed.
DOCTRINE: Questions as to the determination of the Heirs of
a decedent, proof of filiation and the determination of the
estate of the decedent and claims thereto should be brought
up before the proper probate court or in special proceedings
instituted for the purpose. Such issues cannot be adjudicated
in an ordinary civil action for the recovery of ownership and
possession.
FELIX AZUELA V. CA
SUMMARY: Felix Azuela presented Igsolo’s will for probate,
opposed by Castillo. The RTC allowed probate, while the CA
disallowed on the ground that the attestation clause failed
to state the number of pages of the will. The SC agreed with
the CA, and found other violations of the articles under wills
in the New Civil Code.
DOCTRINE: Not in the case, but related to Sec 9 Rule 76 of
the Rules of Court, several circumstances in this case led to
the disallowance of the will sought to be probated by Azuela,
such as “(a) if not executed and attested as required by law”.
When the attestation clause does not state the number of
pages of the will, and not signed by the instrumental wit-
nesses at the end, and the will was not acknowledged before
a notary public, and not numbered correlatively in words,
and also the testator failed to sign all pages of the will, it
should be disallowed probate.
ALABAN V. CA
SUMMARY: Soledad Provido Elevencionado died. Francisco
Provido filed a petition for the probate of her will wherein he
alleged that he is her heir and executor. The RTC allowed its
probate. Four months after the allowance, the petitioners
who are collateral relatives of the deceased filed a motion
for the reopening of the probate. They also filed an opposi-
tion to its allowance, saying that the property of the de-
ceased should be distributed following intestate succession.
Since they were not made parties to the probate of the will,
the order of the RTC should be annulled. The RTC and the CA
ruled in favor of respondent Provido, saying that the peti-
tioners failed to resort to the ordinary remedies in law, and
even if they did their claim has no substantial basis. The SC
affirmed this, saying that the petitioners should have availed
of a motion for new trial or reconsideration, or a petition for
relief of judgment. The petitioners, contrary to what they
claim, became parties to the probate proceedings because it
is a proceeding in rem. The publication of the petition ex-
tended the court’s jurisdiction over all persons interested in
the will or in the settlement of the estate of the deceased.
Also, only compulsory or testate heirs are entitled to be no-
tified of the probate proceedings under the Rules, so Provido
had no legal obligation to notify them.
DOCTRINE: A proceeding for the probate of a will is one in
rem, such that with the corresponding publication of the pe-
tition the court's jurisdiction extends to all persons inter-
ested in said will or in the settlement of the estate of the de-
cedent.
FLEUMER V. HIX
SUMMARY: Fleumer is the administrator of the estate of Hix.
He submitted for probate the alleged will of Hix which was
denied by the CFI judge. It is alleged that the will was duly
executed according the laws of West Virginia. The SC ruled
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that it was necessary to prove the laws of West Virginia and
that Hix domiciled in the said place which Fleumer failed to
establish. Hence, the CFI was correct.
DOCTRINE: no hearing on the question of the allowance of a
will said to have been proved and allowed in West Virginia
has been requested.
(from the syllabus: Where it is desired to prove the probate
of a will in another jurisdiction and the appointment in that
jurisdiction of an administrator of estate of the deceased, the
moving party must comply with the provisions of sec. 637,
638, and 639 of the Code of Civil Procedure by requesting a
hearing on the question of the allowance of a will said to
have been proved and allowed in another jurisdiction)
ANCHETA V. GUERSEY-DALAYGON
SUMMARY: Audrey and Richard were married. They had a
son, Kyle. They are American Citizens, domiciled therein but
has been residing in the Philippines for 30 years. When
Audrey died she left a will bequeathing ALLHER PROPERTIES
(including the Makati property, shares in a company and sav-
ings account) to her husband. Richard remarried to herein
respondent. When Richard died, he left a will bequeathing
also, all his properties to respondent except the shares which
he gave to his son. The will of Audrey was duly probated in
Maryland. The same is true with that of Richard. Ancheta was
appointed as the ancillary administrator of the estate. The
latter filed probate proceedings here in the Philippines and
filed a PROJECT PARTITION whereby he did not apply the
LAW OF MARYLAND but instead applied the Philippine Law.
Hence, instead of bequeathing all the Makati property to re-
spondent, he only awarded ¾ thereof and gave the ¼ to Kyle.
Respondent alleged that the latter violated his fiduciary duty
because he did not apply the Maryland Law and also, he dis-
regarded the wills of Richard and Audrey
DOCTRINE: Section 4, Rule 77 of the Rules of Court states:
Estate, how administered. - When a will is thus allowed, the
court shall grant letters testamentary or letters of admin-
istration with the will annexed, and such letters testamen-
tary or of administration, shall extend to all the estate of the
testator in the Philippines. Such estate, after the payment of
just debts and expenses of administration, shall be disposed
of according to such will, so far as such will may operate upon
it; and the residue, if any, shall be disposed of as is provided
bylaw in cases of estates in the Philippines belonging to per-
sons who are inhabitants of another state or country.
While foreign laws do not prove themselves in our jurisdic-
tion and our courts are not authorized to take judicial notice
of them; however, petitioner, as ancillary administrator [of
Audrey’s estate], was duty-bound to introduce in evidence
the pertinent law of the State of Maryland.
APPOINTMENT AND REMOVAL OF
EXECUTOR OR ADMINISTRATOR
RULE 78
Sec. 1. Who are incompetent to serve as executors or ad-
ministrators. - No person is competent to serve as executor
or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of
the trust by reason of drunkenness, improvidence, or want
of understanding or integrity, or by reason of conviction of
an offense involving moral turpitude.
Sec. 2. Executor of executor not to administer estate. - The
executor of an executor shall not, as such, administer the es-
tate of the first testator.
Sec. 3. Married women may serve. - A married woman may
serve as executrix or administratrix, and the marriage of a
single woman shall not affect her authority so to serve under
a previous appointment.
Sec. 4. Letters testamentary issued when will allowed. -
When a will has been proved and allowed, the court shall is-
sue letters testamentary thereon to the person named as ex-
ecutor therein, if he is competent, accepts the trust, and
gives bond as required by these rules.
Sec. 5. Where some coexecutors disqualified others may
act. - When all of the executors named in a will can not act
because of incompetency, refusal to accept the trust, or fail-
ure to give bond, on the part of one or more of them, letters
testamentary may issue to such of them as are competent,
accept and give bond, and they may perform the duties and
discharge the trust required by the will.
Sec. 6. When and to whom letters of administration
granted. - If no executor is named in the will, or the executor
or executors are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, administration shall be
granted:
(a) To the surviving husband or wife, as the case may be, or
next of kin, or both, in the discretion of the court, or to such
person as such surviving husband or wife, or next of kin, re-
quests to have appointed, if competent and willing to serve;
b) If such surviving husband or wife, as the case may be, or
next of kin, or the person selected by them, be incompetent
or unwilling, or if the husband or widow, or next of kin, ne-
glects for thirty (30) days after the death of the person to
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apply for administration or to request that administration be
granted to some other person, it may be granted to one or
more of the principal creditors, if competent and willing to
serve;
(c) If there is no such creditor competent and willing to serve,
it may be granted to such other person as the court may se-
lect.
RULE 80
Sec. 1. Appointment of special administrator.- When there
is delay in granting letters testamentary or of administration
by any cause including an appeal from the allowance or dis-
allowance of a will, the court may appoint a special adminis-
trator to take possession and charge of the estate of the de-
ceased until the questions causing the delay are decided and
executors or administrators appointed.
Sec. 2. Powers and duties of special administrator. - Such
special administrator shall take possession and charge of
goods, chattels, rights, credits, and estate of the deceased
and preserve the same for the executor or administrator af-
terwards appointed, and for that purpose may commence
and maintain suits as administrator. He may sell only such
perishable and other property as the court orders sold. A
special administrator shall not be liable to pay any debts of
the deceased unless so ordered by the court.
Sec. 3. When powers of special administrator cease; Trans-
fer of effects; Pending suits. - When letters testamentary or
of administration are granted on the estate of the deceased,
the powers of the special administrator shall cease, and he
shall forthwith deliver to the executor or administrator the
goods, chattels, money, and estate of the deceased in his
hands. The executor or administrator may prosecute to final
judgment suits commenced by such special administrator.
RULE 82, SECS 2 -4
Sec. 2. Court may remove or accept resignation of executor
or administrator; Proceedings upon death, resignation, or
removal. - If an executor or administrator neglects to render
his account and settle the estate according to law, or to per-
form an order or judgment of the court, or a duty expressly
provided by these rules, or absconds, or becomes insane, or
otherwise incapable or unsuitable to discharge the trust, the
court may remove him, or, in its discretion, may permit him
to resign. When an executor or administrator dies, resigns,
or is removed the remaining executor or administrator may
administer the trust alone, unless the court grants letters to
someone to act with him. If there is no remaining executor
or administrator, administration may be granted to any suit-
able person.
Sec. 3. Acts before revocation, resignation, or removal to be
valid. - The lawful acts an executor or administrator before
the revocation of his letters testamentary or of administra-
tion, or before his resignation or removal, shall have the like
validity as if there had been no such revocation, resignation,
or removal.
Sec. 4. Powers of new executor or administrator. - Renewal
of license to sell real estate. The person to whom letters tes-
tamentary or of administration are granted after the revoca-
tion of former letters, or the death, resignation, or removal
of a former executor or administrator, shall have the like
powers to collect and settle the estate not administered that
the former executor or administrator had, and may prose-
cute or defend actions commenced by or against the former
executor or administrator, and have execution on judgments
recovered in the name of such former execution or adminis-
trator. An authority granted by the court to the former exec-
utor or administrator for the sale or mortgage of real estate
may be renewed in favor of such person without further no-
tice or hearing.
Who may administer the estate of a deceased person
1. Executor
2. Administrator
Who are incompetent to serve as executors
1. Minor;
2. Not a resident of the Philippines; and
3. Is, in the opinion of the court, unfit to execute the duties
of the trust by reason of drunkenness, improvidence, or
want of understanding or integrity, or by reason of con-
viction of an offense involving moral turpitude
Executor vis-à-vis Administrator
Executor Administrator
A person expressly named A person appointed by the in-
by the deceased person in testate court to administer
his will to administer, set- the estate of a deceased per-
tle, and liquidate his es- son who:
tate. 1. Dies without leaving a
will;
2. Did not name any execu-
tor even if there was a
will;
3. Or if there be one
named, he is incompe-
tent, refuses the trust or
fails to give a bond, or
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Executor Administrator
that the will subse-
quently is declared null
and void.
Order of Preference in Granting Letters of Administration
under Sec. 6
If no executor is named in the will, or the executor or execu-
tors are incompetent, refuse the trust, or fail to give bond, or
a person dies intestate, administration shall be granted:
1. To the surviving husband or wife, as the case may be, or
next of kin, or both, in the discretion of the court, or to
such person as such surviving husband or wife, or next
of kin, requests to have appointed, if competent and
willing to serve;
2. If such surviving husband or wife, as the case may be, or
next of kin, or the person selected by them, be incom-
petent or unwilling, or if the husband or widow, or next
of kin, neglects for thirty (30) days after the death of the
person to apply for administration or to request the ad-
ministration be granted to some other person, it may be
granted to one or more of the principal creditors, if com-
petent and willing to serve;
3. If there is no such creditor competent and willing to
serve, it may be granted to such other person as the
court may select.
Note: As a general, the court cannot set aside the order of
preference [Ventura v. Ventura]. However, if the persons
who have the referential right to be appointed under the
Rule are not competent or are unwilling to serve, administra-
tion may be granted to such other person as the court may
appoint [Villamor v. CA].
Special Administrator
A special administrator is a representative of the decedent
appointed by the probate court to care for and preserve his
estate until an executor or general administrator is ap-
pointed.
When a special administrator is appointed
When there is delay in granting letters testamentary or of
administration, occasioned by an appeal from the allowance
or disallowance of a will or some other cause, the court may
appoint one.
Administrator Special Administrator
When Appointed
Appointed when a dece- Appointed when there is is
dent died intestate or did delay in granting letters tes-
not appoint any executor tamentary or administration.
in his will or the will is sub-
sequently disallowed.
Obliged to pay the debts of the estate?
Administrator Special Administrator
Yes No
Can appointment be subject of an appeal?
Yes Regarded as an interlocutory
order, so no.
Note: Order of preference in Sec. 6, Rule 78 is not applicable
to the appointment of a special administrator. The appoint-
ment of the latter lies in the sound discretion of the court
[Pijuan v. De Gurrea].
Liquidation and Administration
The purpose of administration is the liquidation of the estate
and distribution of the residue among the heirs and legatees.
Liquidation means the determination of all the assets of the
estate and the payment of all debts and expenses [Luzon
Surety v. Quebrar].
Grounds under Rule 82, Sec.2 where a court may remove or
accept resignation of an executor or administrator
1. Neglects to render an account and settle the estate ac-
cording to law;
2. Neglects to perform an order or judgment of the court, or
a duty expressly provided by the rules;
3. Absconds;
4. Becomes insane;
5. Or otherwise incapable or unsuitable to discharge the
trust.
Note: The grounds above are not exclusive. Also, a special
administrator may be removed on other grounds upon the
court’s discretion.
QUESTIONS
Q: May the executor of an executor be allowed to admin-
ister the estate?
A: No. Rule 78, Sec. 2 states that the executor of an exec-
utor shall not administer the estate of the first testa-
tor.
Q: May a married woman serve as executrix or adminis-
tratrix?
A: Yes, Sec. 3 of Rule 78 allows such. Likewise, the mar-
riage of a single woman shall not affect her authority
so to serve under a previous appointment.
Q: What is the rule if some co-executors are disqualified?
A: Sec. 5, Rule 78 states that when all of the executors
named in a will cannot act because of incompetency,
refusal to accept the trust, or failure to give bond, on
the part of one or more of them, letters testamentary
may issue to such of them as are competent, accept
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and give bond, and they may perform the duties and
discharge the trust required by the will.
In other words, where some co-executors are disqual-
ified, others who are qualified may thereby act.
Q: What is the scope or limit of administration?
A: The general rule universally recognized is that admin-
istration extends only to the assets of a decedent
found within the state or country where it was
granted, so that an administrator appointed in one
state or country has no power over the property in an-
other state or country. This is specifically embodied in
Sec. 4, Rule 78 [Leon v. Manufacturers Life Insurance
Co.].
Q: When a will is later discovered, what will happen to
the letters of administration previously granted?
A: It shall be revoked. The administrator will have to sur-
render the letters to the court, and render his account
within such time as the court directs.
Q: What happens if a will is later discovered during the
intestate proceeding?
A: Proceedings for the probate of the will should replace
the intestate proceedings, even if an administrator
had already been appointed. The latter will be re-
quired to render a final account and turn over the es-
tate in his possession to the executor subsequently
appointed. This, however, is understood to be without
prejudice that the proceeding shall continue as intes-
tacy [Uriate v. CFI of Negros Occidental].
Q: Would the discovery of the will ipso facto nullify the
letters of administration already issued?
A: No. It is only when the newly-discovered will has been
admitted to probate that the letters of administration
may be revoked.
Q: Is the order of removal appealable?
A: Yes, according to [Borromeo v. Borromeo].
JURISPRUDENCE
TESTATE ESTATE OF GREGORIO VENTURA V.
GREGORIA VENTURA
SUMMARY: Decedent Gregorio was survived by his second
wife, Juana; legitimate daughters, Mercedes and Gregoria
and illegitimate children, Maria and Miguel. He appointed
Maria as the executrix of his will and administratix of his es-
tate, to the prejudice of his legitimate daughters Mercedes
and Gregoria. The administration of Gregorio’s estate was
opposed by Mercedes and Gregoria. The Court held that un-
der Section 6 of Rule 78, the person or persons to be ap-
pointed administrator are Juana Cardona, as the surviving
spouse, or Mercedes and Gregoria Ventura as nearest of kin,
or Juana Cardona and Mercedes and Gregoria Ventura in the
discretion of the Court, in order to represent both interests.
DOCTRINE: The "next of kin" has been defined as those per-
sons who are entitled under the statute of distribution to the
decedent's property. It is generally said that "the nearest of
kin, whose interest in the estate is more preponderant, is
preferred in the choice of administrator. Among members of
a class the strongest ground for preference is the amount or
preponderance of interest. As between next of kin, the near-
est of kin is to be preferred.
VILLAMOR V. CA
SUMMARY: The RESPONDENT is Fr. Nicanor Cortes (who
chose Father Camomot as his administrator, who is in no way
related to him, but a good friend) and represented by Dan-
iela Ceniza Urot as administratix of his estate. The PETITION-
ERS on the other hand who are successors-in-interest of Ire-
neo and Paula Cortes Villamor – the CASE IS NOT CLEAR WHO
THEY APPOINTED AS ADMINISTRATOR, but it is assumed that
he was a complete stranger to the decedents (Ireneo and
Paula)
DOCTRINE: The Supreme Court does not find “intriguing the
fact that the administrators appointed were complete
strangers to the decedents. There is nothing repulsive in this
nor is this an indicium of fraud and collusion as found by the
courts. Section 642 of the Code of Civil Procedure enumer-
ates the persons who can act as executors and administra-
tors. It provides that in case the persons who have the pref-
erential right to be appointed are not competent or are un-
willing to serve, administration may be granted to such other
person as the court may appoint
PIJUAN V. VDA DE GURREA
SUMMARY: Carlos Gurrea married Manuela Ruiz in Spain
and had a son. Carlos abandoned Manuela and left for the
PH with their son in 1945. He lived with Rizalina Perez with
whom he had two children. Manuela eventually went to the
PH and sued Carlos for support, which was granted by the
Court Pendente Lite. Carlos died and his will was admitted
probate. Marcelo Pijuan, who was indicated therein as the
Executor petitioned and was appointed by the Probate Court
as Special Administrator of the estate. Manuela filed a mo-
tion arguing that the support given to her be continued and
that she be appointed administratrix of the estate instead of
Pijuan. The Trial Court denied both her prayers. SC affirmed
the lower court.
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DOCTRINE: Sec 6, Rule 78, ROC provides a Right of Prefer-
ence in favor of the widow of the deceased only under the ff
conditions:
• The deceased died intestate
• The deceased did not name an executor in his will
• The executor/s named are incompetent, refuse the trust
or fail to give a bond
This Right of Preference is applicable only to the appoint-
ment of an Administrator and not to the appointment of Spe-
cial Administrator. Moreover, such appointment lies within
the discretion of the Probate Court and is not appealable.
LUZON SURETY COMPANY, INC. V. QUEBRAR
AND KILAYKO
SUMMARY: In 1954, Luzon Surety issued 2 administrator’s
bonds in behalf of Quebrar. In return, Quebrar and Kilayko
executed indemnity agreements containing an undertaking
to pay annual premiums for the bond. In 1957, Quebrar se-
cured the approval of the court regarding a project of parti-
tion and accounts. In 1962, Luzon Surety demanded for un-
paid premiums from 1955 to 1962, but Quebrar and Kilayko
refused to pay so Luzon Surety filed a case. Quebrar and Ki-
layko alleged that the bonds were cancelled when the court
approved the project of partition. CFI of Manila ruled in favor
of Luzon Surety. SC affirmed. The bond was subsisting as long
as Quebrar is the administrator of the estate in the special
proceedings in which the bonds were issued.
DOCTRINE: The surety is then liable under the administra-
tor's bond, for as long as the administrator has duties to do
as such administrator/executor. The liability of the sureties
is co-extensive with that of the administrator and embraces
the performance of every duty he is called upon to perform
in the course of administration.
An estate may be partitioned even before the termination of
the administration proceedings. The approval of the project
of partition did not necessarily terminate the administration
proceedings. Administration is for the purpose of liquidation
of the estate and distribution of the residue among the heirs
and legatees and liquidation means the determination of all
the assets of the estate and payment of all the debts and ex-
penses
DUTIES AND POWERS OF EXECUTOR/
ADMINISTRATOR
RULE 81
Sec. 1. Bond to be given before issuance of letters; Amount;
Conditions. - Before an executor or administrator enters
upon the execution of his trust, and letters testamentary or
of administration issue, he shall give a bond, in such sum as
the court directs, conditioned as follows:
(a) To make and return to the court, within three (3) months,
a true and complete inventory of all goods, chattels, rights,
credits, and estate of the deceased which shall come to his
possession or knowledge or to the possession of any other
person for him;
(b) To administer according to these rules, and, if an execu-
tor, according to the will of the testator, all goods, chattels,
rights, credits, and estate which shall at any time come to his
possession or to the possession of any other person for him,
and from the proceeds to pay and discharge all debts, lega-
cies, and charges on the same, or such dividends thereon as
shall be decreed by the court;
(c) To render a true and just account of his administration to
the court within one (1) year, and at any other time when
required by the court;
(d) To perform all orders of the court by him to be per-
formed.
Sec. 2. Bond of executor where directed in will. When fur-
ther bond required. - If the testator in his will directs that the
executor serve without bond, or with only his individual
bond, he may be allowed by the court to give bond in such
sum and with such surety as the court approves conditioned
only to pay the debts of the testator; but the court may re-
quire of the executor a further bond in case a change in his
circumstances, or for other sufficient cause, with the condi-
tions named in the last preceding section. chan robles virtual
law library
Sec. 3. Bonds of joint executors and administrators. - When
two or more persons are appointed executors or administra-
tors the court may take a separate bond from each, or a joint
bond from all.
Sec. 4. Bond of special administrator. - A special administra-
tor before entering upon the duties of his trust shall give a
bond, in such sum as the court directs, conditioned that he
will make and return a true inventory of the goods, chattels,
rights, credits, and estate of the deceased which come to his
possession or knowledge, and that he will truly account for
such as are received by him when required by the court, and
will deliver the same to the person appointed executor or ad-
ministrator, or to such other person as may be authorized to
receive them.
RULE 83
Sec. 1. Inventory and appraisal to be returned within three
months. - When three (3) months after his appointment
every executor or administrator shall return to the court a
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true inventory and appraisal of all the real and personal es-
tate of the deceased which has come into his possession or
knowledge. In the appraisement of such estate, the court
may order one or more of the inheritance tax appraisers to
give his or their assistance.
Sec. 2. Certain articles not to be inventoried. - The wearing
apparel of the surviving husband or wife and minor children,
the marriage bed and bedding, and such provisions and other
articles as will necessarily be consumed in the subsistence of
the family of the deceased, under the direction of the court,
shall not be considered as assets, nor administered as such,
and shall not be included in the inventory.
Sec. 3. Allowance to widow and family. - The widow and mi-
nor 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
RULE 84
Sec. 1. Executor or administrator to have access to partner-
ship books and property; How right enforced. - The executor
or administrator of the estate of a deceased partner shall at
all times have access to, and may examine and take copies
of, books and papers relating to the partnership business,
and may examine and make invoices of the property belong-
ing to such partnership; and the surviving partner or part-
ners, on request, shall exhibit to him all such books, papers,
and property in their hands or control. On the written appli-
cation of such executor or administrator, the court having ju-
risdiction of the estate may order any such surviving partner
or partners to freely permit the exercise of the rights, and to
exhibit the books, papers, and property, as in this section
provided, and may punish any partner failing to do so for
contempt.
Sec. 2. Executor or administrator to keep buildings in repair.
- An executor or administrator shall maintain in tenantable
repair the houses and other structures and fences belonging
to the estate, and deliver the same in such repair to the heirs
or devisees when directed so to do by the court.
Sec. 3. Executor or administrator to retain whole estate to
pay debts, and to administer estate not willed. - An executor
or administrator shall have the right to the possession and
management of the real as well as the personal estate of the
deceased so long as it is necessary for the payment of the
debts and the expenses of administration.
RULE 85
Sec. 1. Executor or administrator chargeable with all estate
and income. - Except as otherwise expressly provided in the
following sections, every executor or administrator is charge-
able in his account with the whole of the estate of the de-
ceased which has come into his possession, at the value of
the appraisement contained in the inventory; with all the in-
terest, profit, and income of such estate; and with the pro-
ceeds of so much of the estate as is sold by him, at the price
at which it was sold.
Sec. 2. Not to profit by increase or lose by decrease in value.
- No executor or administrator shall profit by the increase, or
suffer loss by the decrease or destruction, without his fault,
of any part of the estate. He must account for the excess
when he sells any part of the estate for more than appraise-
ment, and if any is sold for less than the appraisement, he is
not responsible for the loss, if the sale has been justly made.
If he settles any claim against the estate for less than its nom-
inal value, he is entitled to charge in his account only the
amount he actually paid on the settlement.
Sec. 3. When not accountable for debts due estate. - No ex-
ecutor or administrator shall be accountable for debts due
the deceased which remain uncollected without his fault.
Sec. 4. Accountable for income from realty used by him. - If
the executor or administrator uses or occupies any part of
the real estate himself, he shall account for it as may be
agreed upon between him and the parties interested, or ad-
justed by the court with their assent; and if the parties do not
agree upon the sum to be allowed, the same may be ascer-
tained by the court, whose determination in this respect
shall be final.
Sec. 5. Accountable if he neglects or delays to raise or pay
money. - When an executor or administrator neglects or un-
reasonably delays to raise money, by collecting the debts or
selling the real or personal estate of the deceased, or ne-
glects to pay over the money he has in his hands, and the
value of the estate is thereby lessened or unnecessary cost
or interest accrues, or the persons interested suffer loss, the
same shall be deemed waste and the damage sustained may
be charged and allowed against him in his account, and he
shall be liable therefor on his bond.
Sec. 6. When allowed money paid as costs. - The amount
paid by an executor or administrator for costs awarded
against him shall be allowed in his administration account,
unless it appears that the action or proceeding in which the
costs are taxed was prosecuted or resisted without just
cause, and not in good faith.
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Sec. 7. What expenses and fees allowed executor or admin-
istrator. - Not to charge for services as attorney. Compensa-
tion provided by will controls unless renounced. An executor
or administrator shall be allowed the necessary expenses in
the care, management, and settlement of the estate, and for
his services, four pesos per day for the time actually and nec-
essarily employed, or a commission upon the value of so
much of the estate as comes into his possession and is finally
disposed of by him in the payment of debts, expenses, lega-
cies, or distributive shares, or by delivery to heirs or devisees,
of two per centum of the first five thousand pesos of such
value, one per centum of so much of such value as exceeds
five thousand pesos and does not exceed thirty thousand pe-
sos, one-half per centum of so much of such value as exceeds
thirty thousand pesos and does not exceed one hundred
thousand pesos and one-quarter per centum of so much of
such value as exceed one hundred thousand pesos. But in
any special case, where the estate is large, and the settle-
ment has been attended with great difficulty, and has re-
quired a high degree or capacity on the part of the executor
or administrator, a greater sum may be allowed. If objection
to the fees allowed be taken, the allowance may be re-exam-
ined on appeal.
If there are two or more executors or administrators, the
compensation shall be apportioned among them by the
court according to the services actually rendered by them re-
spectively.
When the executor or administrator is an attorney, he shall
not charge against the estate any professional fees for legal
services rendered by him.
When the deceased by will makes some other provision for
the compensation of his executor, that provision shall be a
full satisfaction for his services unless by a written instru-
ment filed in the court he renounces all claim to the compen-
sation provided by the will.
Sec. 8. When executor or administrator to render account. -
Every executor or administrator shall render an account of
his administration within one (1) year from the time of re-
ceiving letters testamentary or of administration, unless the
court otherwise directs because of extensions of time for
presenting claims against, or paying the debts of, the estate,
or for disposing of the estate; and he shall render such fur-
ther accounts as the court may require until the estate is
wholly settled.
Sec. 9. Examination on oath with respect to account. - The
court may examine the executor or administrator upon oath
with respect to every matter relating to any account ren-
dered by him, and shall so examine him as to the correctness
of his account before the same is allowed, except when no
objection is made to the allowance of the account and its
correctness is satisfactorily established by competent proof.
The heirs, legatees, distributees, and creditors of the estate
shall have the same privilege as the executor or administra-
tor of being examined on oath of any matter relating to an
administration.
Sec. 10. Account to be settled on notice. - Before the account
of an executor or administrator is allowed, notice shall be
given to persons interested of time and place of examining
and allowing the same; and such notice may be given per-
sonally to such persons interested or by advertisement in a
newspaper or newspapers, or both, as the court directs.
Sec. 11. Surety on bond may be party to accounting. - Upon
the settlement of the account of an executor or administra-
tor, a person liable as surety in respect to such account may,
upon application, be admitted as party to such accounting.
RULE 87
Sec. 1. Actions which may and which may not be brought
against executor or administrator. - No action upon a claim
for the recovery of money or debt or interest thereon shall
be commenced against the executor or administrator; but
actions to recover real or personal property, or an interest
therein, from the estate, or to enforce a lien thereon, and
actions to recover damages for an injury to person or prop-
erty, real or personal, may be commenced against
him.chanrobles virtualawlibrary
Sec. 2. Executor or administrator may bring or defend ac-
tions which survive. - For the recovery or protection of the
property or rights of the deceased, an executor or adminis-
trator may bring or defend, in the right of the deceased, ac-
tions for causes which survive.
Sec. 3. Heir may not sue until have share assigned. - When
an executor or administrator is appointed and 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 or devisee until there is an order of the court
assigning such lands to such heir or devisee until the time al-
lowed for paying debts has expired. chan robles virtual law
library
Sec. 4. Executor or administrator may compound with
debtor. - With the approval of the court, an executor or ad-
ministrator may compound with the debtor of the deceased
for a debt due, and may give a discharge of such debt on re-
ceiving a just dividend of the estate of the debtor.
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Sec. 5. Mortgage due estate may be foreclosed. - A mort-
gage belonging to the estate of a deceased person, as mort-
gagee or assignee of the right of a mortgagee, may be fore-
closed by the executor or administrator.
Sec. 6. Proceedings when property concealed, embezzled, or
fraudulently conveyed. - If an executor or administrator, heir,
legatee, creditor, or other individual interested in the estate
of the deceased, complains to the court having jurisdiction
of the estate that a person is suspected of having concealed,
embezzled, or conveyed away any of the money, goods, or
chattels of the deceased, or that such person has in his pos-
session or has knowledge of any deed, conveyance, bond,
contract, or other writing which contains evidence of or
tends to disclose the right, title, interest, or claim of the de-
ceased to real or personal estate, or the last will and testa-
ment of the deceased, the court may cite such suspected
person to appear before it and may examine him on oath on
the matter of such complaint; and if the person so cited re-
fuses to appear, or to answer on such examination or such
interrogatories as are put to him, the court may punish him
for contempt, and may commit him to prison until he sub-
mits to the order of the court. The interrogatories put to any
such person, and his answers thereto, shall be in writing and
shall be filed in the clerk's office. chanrobles virtua law library
Sec. 7. Person entrusted with estate compelled to render ac-
count. - The court, on complaint of an executor or adminis-
trator, may cite a person entrusted by an executor or admin-
istrator with any part of the estate of the deceased to appear
before it, and may require such person to render a full ac-
count, on oath, of the money, goods, chattels, bonds, ac-
counts, or other papers belonging to such estate as came to
his possession in trust for such executor or administrator,
and of his proceedings thereon; and if the person so cited
refuses to appear to render such account, the court may pun-
ish him for contempt as having disobeyed a lawful order of
the court.
Sec. 8. Embezzlement before letters issued. - If a person, be-
fore the granting of letters testamentary or of administration
on the estate of the deceased, embezzles or alienates any of
the money, goods, chattels, or effects of such deceased, such
person shall be liable to an action in favor of the executor or
administrator of the estate for double the value of the prop-
erty sold, embezzled, or alienated, to be recovered for the
benefit of such estate.
Sec. 9. Property fraudulently conveyed by deceased may be
recovered; When executor or administrator must bring ac-
tion. - When there is deficiency of assets in the hands of an
executor or administrator for the payment of debts and ex-
penses of administration, and the deceased in his lifetime
had conveyed real or personal property, or a right or interest
therein, or a debt or credit, with intent to defraud his credi-
tors or to avoid any right, debt, or duty; or had so conveyed
such property, right, interest, debt, or credit that by law the
conveyance would be void as against his creditors, and the
subject of the attempted conveyance would be liable to at-
tachment by any of them in his lifetime, the executor or ad-
ministrator may commence and prosecute to final judgment
an action for the recovery of such property, right, interest,
debt, or credit for the benefit of the creditors; but he shall
not be bound to commence the action unless on application
of the creditors of the deceased, nor unless the creditors
making the application pay such part of the costs and ex-
penses, or give security therefor to the executor or adminis-
trator, as the court deems equitable.
Sec. 10. When creditor may bring action; Lien for costs. -
When there is such a deficiency of assets, and the deceased
in his lifetime had made or attempted such a conveyance, as
is stated in the last preceding section, and the executor or
administrator has not commenced the action therein pro-
vided for, any creditor of the estate may, with the permission
of the court, commence and prosecute to final judgment, in
the name of the executor or administrator, a like action for
the recovery of the subject of the conveyance or attempted
conveyance for the benefit of the creditors. But the action
shall not be commenced until the creditors has filed in a
court a bond executed to the executor or administrator, in
an amount approved by the judge, conditioned to indemnify
the executor or administrator against the costs and expenses
incurred by reason of such action. Such creditor shall have a
lien upon any judgment recovered by him in the action for
such costs and other expenses incurred therein as the court
deems equitable. Where the conveyance or attempted con-
veyance has been made by the deceased in his lifetime in fa-
vor of the executor or administrator, the action which a cred-
itor may bring shall be in the name of all the creditors, and
permission of the court and filing of bond as above pre-
scribed, are not necessary.
RULE 89
Sec. 1. Order of sale of personalty. - Upon the application of
the executor or administrator, and on written notice to the
heirs and other persons interested, the court may order the
whole or a part of the personal estate to be sold, if it appears
necessary for the purpose of paying debts, expenses of ad-
ministration, or legacies, or for the preservation of the prop-
erty.
Sec. 2. When court may authorize sale, mortgage, or other
encumbrance of realty to pay debts and legacies through
personalty not exhausted. - When the personal estate of the
deceased is not sufficient to pay the debts, expenses of ad-
ministration, and legacies, or where the sale of such personal
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estate may injure the business or other interests of those in-
terested in the estate, and where a testator has not other-
wise made sufficient provision for the payment of such
debts, expenses, and legacies, the court, on the application
of the executor or administrator and on written notice to the
heirs, devisees, and legatees residing in the Philippines, may
authorize the executor or administrator to sell, mortgage, or
otherwise encumber so much as may be necessary of the real
estate, in lieu of personal estate, for the purpose of paying
such debts, expenses, and legacies, if it clearly appears that
such sale, mortgage, or encumbrances would be beneficial
to the persons interested; and if a part cannot be sold, mort-
gaged, or otherwise encumbered without injury to those in-
terested in the remainder, the authority may be for the sale,
mortgage, or other encumbrance of the whole of such real
estate, or so much thereof as is necessary or beneficial under
the circumstances.
Sec. 3. Persons interested may prevent such sale, etc., by
giving bond. - No such authority to sell, mortgage, or other-
wise encumber real or personal estate shall be granted if any
person interested in the estate gives a bond, in a sum to be
fixed by the court, conditioned to pay the debts, expenses of
administration, and legacies within such time as the court di-
rects; and such bond shall be for the security of the creditors,
as well as of the executor or administrator, and may be pros-
ecuted for the benefit of either.
Sec. 4. When court may authorize sale of estate as benefi-
cial to interested persons; Disposal of proceeds. - When it
appears that the sale of the whole or a part of the real or
personal estate, will be beneficial to the heirs, devisees, leg-
atees, and other interested persons, the court may, upon ap-
plication of the executor or administrator and on written no-
tice to the heirs, devisees and legatees who are interested in
the estate to be sold, authorize the executor or administrator
to sell the whole or a part of said estate, although not neces-
sary to pay debts, legacies, or expenses of administration;
but such authority shall not be granted if inconsistent with
the provisions of a will. In case of such sale, the proceeds
shall be assigned to the persons entitled to the estate in the
proper proportions.
Sec. 5. When court may authorize sale, mortgage, or other
encumbrance of estate to pay debts and legacies in other
countries. - When the sale of personal estate, or the sale,
mortgage, or other encumbrance of real estate is not neces-
sary to pay the debts, expenses of administration, or legacies
in the Philippines, but it appears from records and proceed-
ings of a probate court in another country that the estate of
the deceased in such other country is not sufficient to pay
the debts, expenses of administration, and legacies there,
the court here may authorize the executor or administrator
to sell the personal estate or to sell, mortgage, or otherwise
encumber the real estate for the payment of debts or lega-
cies in the other country, in the same manner as for the pay-
ment of debts or legacies in the Philippines.
Sec. 6. When court may authorize sale, mortgage, or other
encumbrance of realty acquired on execution or foreclo-
sure. - The court may authorize an executor or administrator
to sell, mortgage, or otherwise encumber real estate ac-
quired by him on execution or foreclosure sale, under the
same circumstances and under the same regulations as pre-
scribed in this rule for the sale, mortgage, or other encum-
brance of other real estate.
Sec. 7. Regulations for granting authority to sell, mortgage,
or otherwise encumber estate. - The court having jurisdic-
tion of the estate of the deceased may authorize the execu-
tor or administrator to sell personal estate, or to sell, mort-
gage, or otherwise encumber real estate; in cases provided
by these rules and when it appears necessary or beneficial,
under the following regulations:
(a) The executor or administrator shall file a written petition
setting forth the debts due from the deceased, the expenses
of administration, the legacies, the value of the personal es-
tate, the situation of the estate to be sold, mortgaged, or
otherwise encumbered, and such other facts as show that
the sale, mortgage, or other encumbrance is necessary or
beneficial;
(b) The court shall thereupon fix a time and place for hearing
such petition, and cause notice stating the nature of the pe-
tition, the reason for the same, and the time and place of
hearing, to be given personally or by mail to the persons in-
terested, and may cause such further notice to be given, by
publication or otherwise, as it shall deem proper;
(c) If the court requires it, the executor or administrator shall
give an additional bond, in such sum as the court directs, con-
ditioned that such executor or administrator will account for
the proceeds of the sale, mortgage, or other encumbrance;
(d) If the requirements in the preceding subdivisions of this
section have been complied with, the court, by order stating
such compliance, may authorize the executor or administra-
tor to sell, mortgage, or otherwise encumber, in proper
cases, such part of the estate as is deemed necessary, and in
case of sale the court may authorize it to be public or private,
as would be most beneficial to all parties concerned. The ex-
ecutor or administrator shall be furnished with a certified
copy of such order;
(e) If the estate is to be sold at auction, the mode of giving
notice of the time and place of the sale shall be governed by
the provisions concerning notice of execution sale;
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(f) There shall be recorded in the registry of deeds of the
province in which the real estate thus sold, mortgaged, or
otherwise encumbered is situated, a certified copy of the or-
der of the court, together with the deed of the executor or
administrator for such real estate, which shall be as valid as
if the deed had been executed by the deceased in his life-
time.
Sec. 8. When a court may authorize conveyance or realty
which deceased contracted to convey; Notice; Effect of
deed. - Where the deceased was in his lifetime under con-
tract, binding in law, to deed real property, or an interest
therein, the court having jurisdiction of the estate may, on
application for that purpose, authorize the executor or ad-
ministrator to convey such property according to such con-
tract, or with such modifications as are agreed upon by the
parties and approved by the court; and if the contract is to
convey real property to the executor or administrator, the
clerk of the court shall execute the deed. The deed executed
by such executor, administrator, or clerk of court shall be as
effectual to convey the property as if executed by the de-
ceased in his lifetime; but no such conveyance shall be au-
thorized until notice of the application for that purpose has
been given personally or by mail to all persons interested,
and such further notice has been given, by publication or
otherwise, as the court deems proper; nor if the assets in the
hands of the executor or administrator will thereby be re-
duced so as to prevent a creditor from receiving his full debt
or diminish his dividend.
Sec. 9. When court may authorize conveyance of lands
which deceased held in trust. - Where the deceased in his
lifetime held real property in trust for another person, the
court may, after notice given as required in the last preced-
ing section, authorize the executor or administrator to deed
such property to the person, or his executor or administra-
tor, for whose use and benefit it was so held; and the court
may order the execution of such trust, whether created by
deed or by law.
General powers and duties of executors and administra-
tors
1. Shall at all times have access to, and may examine and
take copies of, books and papers relating to the partner-
ship business,
2. May examine and make invoices of the property belong-
ing to such partnership,
3. Shall maintain in tenantable repair the houses and other
structures and fences belonging to the estate, and de-
liver the same in such repair to the heirs or devisees
when directed so to do by the court,
4. Shall have the right to the possession and management
of the real as well as the personal estate of the deceased
so long as it is necessary for the payment of the debts
and the expenses of administration.
Administration Expenses
Those which are necessary for the management of the es-
tate, for protecting it against destruction or feterioration,
and, possibly, the production of fruits. They are expenses and
its management for purposes of liquidation, payment of
debts, and distribution of the residue among the persons en-
titled to thereto [Estate of Olave v. Reyes].
Necessary expenses
Such expenses as are entailed for the preservation and
productivity of the estate and for its management for pur-
poses of liquidation, payment of debts, and distribution of
the residue among persons entitled thereto [Lizarraga Her-
manos v. Abada].
Duty to Render an Accounting
The administrator or executor is under obligation to render
a true and just account of his administration to the court.
Hearing is held before an administrator’s account is ap-
proved, especially if an interested party raises objections to
certain items in the accounting report. At that hearing, the
practice is for the administrator to take the witness stand,
testify under oath on his accounts and identify the receipts,
vouchers, and documents evidencing his disbursements
which are offered as exhibits. He may be interrogated by the
court and cross-examined by the oppositor’s counsel. The
oppositors may present proofs to rebut the administrator’s
evidence in support of his accounts [De Guzman v. De Guz-
man-Carillo].
Note: The rendering if an accounting within (1) year from the
appointment of an administrator is mandatory as shown by
the use of “shall” in the rule [Kalaw v. IAC].
Actions that may be commenced against executors and ad-
ministrators
1. Recovery of real or personal property or any interest
therein from the estate;
2. Enforcement of a lien thereon;
3. Action to recover damages for any injury to person or
property, real, or personal.
QUESTIONS
Q: Is the executor or administrator required to post
bond?
A: Yes. Before an executor or administrator enter upon
the execution of his trust, and letters testamentary or
of administration issue, he shall give a bond, in such
sum as the court directs, conditioned as follows:
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(1) To make and return to the court, within three (3)
months, a true and complete inventory of all
goods, chattels, rights, credits, and estate of the
deceased which shall come to his possession or
knowledge or to the possession of any other per-
son for him;
(2) To administer according to these rules, and, if an
executor, according to the will of the testator, all
goods, chattels, rights, credits, and estate which
shall at any time come to his possession or to the
possession of any other person for him, and from
the proceeds to pay and discharge all debts, lega-
cies, and charges on the same, or such dividends
thereon as shall be decreed by the court;
(3) To render a true and just account of his admin-
istration to the court within one (1) year, and at
any other time when required by the court;
(4) To perform all orders of the court by him to be
performed.
Q: What is the bond for?
A: The bond is intended as an indemnity to creditors, the
heirs, and the estate. The court shall fix the amount
thereof and hold it accountable for any breach of
duty. The liability may be enforced by motion in a sep-
arate civil action.
Q: Is a special administrator required to post a bond?
A: Yes. Sec. 4 states that, before entering upon the duties
of his trust, the special administrator shall give a bond,
in such sum as the court directs, conditioned that he
will make and return a true inventory of the goods,
chattels, rights, credits, and estate of the deceased
which come to his possession or knowledge, and that
he will truly account for such as a re received by him
when required by the court, and will deliver the same
to the person appointed executor or administrator, or
to such other person as may be authorized to receive
them.
Q: Is the executor or administrator duty bound to make
a return of the inventory and appraisal of the estate?
A: Yes. Rule 83, Sec. 1 states that, three (3) months after
his appointment, every executor or administrator
shall return to the court a true inventory and appraisal
of all the real and personal estate of the deceased
which has come into his possession.
Q: Is the abovementioned three (3) month period man-
datory?
A: No. The court is not divested of jurisdiction even if the
inventory is filed beyond the period. The delay, how-
ever, may be a ground for removal [Sebial v. Sebial et
al.].
Q: May a property claimed by a third person be included
in the inventory?
A: Yes. The order of the probate court including such is
only a prima facie determination and does not pre-
clude the claimants from maintaining an ordinary civil
action for the determination of title [Vda. De Paz v.
Vda. De Madrigal].
Q: May the widow and family of a deceased person re-
ceive an allowance during the settlement of the es-
tate? How about the grandchildren?
A: Sec. 3 states that the widow and minor or incapaci-
tated children of a deceased person may receive such
under the discretion of the court.
HOWEVER, the grandchildren are not entitled to such
allowance [Ruiz v. CA].
Q: Is the right of an executor or administrator to the pos-
session and management of the properties left by the
deceased absolute?
A: No. It can only be exercised “so long as it is necessary
for the payment of the debts and expenses of admin-
istration” [Estate of Hilario Ruiz v. CA].
Q: In the exercise of the powers of administration by the
executor or administrator, must there be leave of
court?
A: No. An administrator or executor has all the powers
necessary for the administration of the estate and
which powers he can exercise without leave of court.
It has long been held that the constitution of a lease
over property of the estate is an act of administration
and leave of court is not required [San Diego v. Nom-
bre].
Note: There are, however, some cases where leave of
court is necessary as the acts involved therein are not
within the powers of administration.
Q: What are the remedies to collect attorney’s fees in es-
tate proceedings?
A: When an attorney renders services to the administra-
tor or executor personally to aid in the execution of
his trust, the administrator or executor is liable for the
fees, but he can move for the reimbursement and
charge such fees as expenses of administration where
the same is reasonable and proved beneficial to the
estate [Uy Tioco v. Imperial, et al.].
On the other hand, where the attorney’s services
were rendered to a litigation involving such adminis-
trator or executor in his capacity as trustee and for the
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protection of the interests of such estate, the attor-
ney’s fee is chargeable to the estate [Rodriguez v.
Ynza].
To recover attorney’s fees, the attorney may either
bring an independent action personally against the ex-
ecutor or administrator, or file a petition in the admin-
istration proceedings for the probate court to allow
the same and to direct the payment of his fee as an
expense of administration [Aldamiz v. Judge of the CFI
of Mindoro].
Q: When shall an executor or administrator render an ac-
count?
A: An account shall be rendered within one (1) year from
the time of receiving letters testamentary or of admin-
istration, unless the court otherwise directs because
the extensions of time for presenting claims against,
or paying the debts of, the estate, or for disposing of
the estate; and he shall render such further accounts
as the court may require until the estate is wholly set-
tled.
Q: Generally, heirs have no standing in court to sue for
the recovery of the estate represented by an executor
or administrator during pendency of administrative
proceedings. What are the exceptions?
A: (1) If the executor or administrator is unwilling to
bring the suit.
(2) When the executor or administrator is made a
party defendant where he is alleged to have partici-
pated in the acts complained of.
(3) When there is no appointed administrator, as in
the case of Teodora Rioferio, et al. v. CA.
Q: Is a judicial declaration of heirship necessary for an
heir to assert his right to the estate of the deceased?
A: No. According to Art. 777 of the NCC, the rights to the
succession are transmitted from the moment of the
death of the decedent.
Q: Does the prohibition in Rule 87 apply to a done inter
vivos?
A: No. Only to heirs and devisees, not to a done inter vi-
vos who may sue the administration for the delivery
of the property donated [Lopez v. Olbes].
Q: Is notice a mandatory requirement to effect the au-
thority if the sale or encumbrance of real property?
A: Yes. Failure to give such would invalidate the authority
granted by the court.
JURISPRUDENCE
ESTATE OF HILARIO RUIZ V. CA
SUMMARY: Petitioner Edmond Ruiz is the executor of the es-
tate of Hilario Ruiz. In compliance with a court order, he de-
posited with the clerk of court rental deposits and payments
for the lease of one of the estate properties. He subsequently
filed a motion for release of the funds deposited with the
clerk of court. Respondent Monts opposed the motion and
prayed for the release of the rent payments to Hilario’s three
grandchildren and the distribution of the estate properties in
accordance with the will. The probate court ordered the re-
lease of the funds to Edmond but only "such amount as may
be necessary to cover the expenses of administration and al-
lowances for support" of the testator's three granddaugh-
ters. The court, however, held in abeyance the release of the
titles to respondent Montes and the three granddaughters
until the lapse of six months from the date of first publication
of the notice to creditors. Petitioner questioned the propri-
ety of this order. The CA affirmed the order but it was modi-
fied by the SC.
DOCTRINE: The right of an executor and administrator to the
possession and management of the real and personal prop-
erties of the deceased is not absolute and can only be exer-
cised "so long as it is necessary for the payment of the debts
and expenses of administration"
ANA LIM KALAW V. IAC
SUMMARY: Ana Lim Kalaw was appointed judicial adminis-
trator of her deceased father’s estate. After more than six
years, she had still not rendered an accounting of her admin-
istration, as required by Section 8, Rule 85 of the Rules of
Court. For this violation, Jose Lim filed a motion that she be
replaced as administratix by her sister Rosa Lim Kalaw. This
was granted. The appellate court and the SC both agreed that
this was proper.
DOCTRINE: "SEC. 8. When executor or administrator to ren-
der account. — Every executor or administrator shall render
an account of his administration within one (1) year from the
time of receiving letters testamentary or of administration,
unless the court otherwise directs because of extensions of
time for presenting claims against, or paying the debts of, the
estate, or for disposing of the estate; and he shall render
such further accounts as the court may require until the es-
tate is wholly settled."
JOSEPHINE PAHAMOTANG V. PNB
SUMMARY: The father of petitioners, without informing his
daughters (petitioners), filed many motions before the intes-
tate court to sell/ mortgage the properties of the estate of
his deceased wife (petitioners’ mother). The intestate court
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granted these. When mortgagor PNB filed to extrajudicially
foreclose the properties, petitioners filed a complaint with
the regular court to nullify the mortgage contracts and fore-
closure proceedings. RTC found for the petitioners. CA re-
versed, holding that the orders of the intestate court cannot
be collaterally attacked in a civil case. SC reversed the CA,
reinstating the RTC for the reason that petitioners never con-
sented to/ were notified of their father’s motions before the
intestate court, and the intestate court’s orders
DOCTRINE: When an order authorizing the sale or encum-
brance of real property is issued by the testate or intestate
court without previous notice to the heirs, devisees, and leg-
atees as required by the Rules, it is not only the contract itself
which is null and void but also the order of the court author-
izing the same
TEODORA RIOFERO V. CA
SUMMARY: Alfonso Jr died without a will leaving his wife Es-
peranca and 7 children and also his paramour and 3 children.
The paramour with her children executed Extrajudicial Set-
tlement of Estate of a Deceased Person with Quitclaim in-
volving the properties of the decedent lin Dagupan and had
Certificates of Titles issued to them. They were also able to
obtain a loan of P700k because of the properties. Alfonso
"Clyde" filed a petition praying that letters of administration
of the estate of decedent be issued to him. Subsequently,
they filed a Complaint for the Annulment/Rescission of Extra
Judicial Settlement of Estate of a Deceased Person with Quit-
claim, Real Estate Mortgage and Cancellation of Transfer Cer-
tificate of Titles with Damages against the paramour and her
children. Paramour set up the defense that this was her ex-
clusive property and that the real party in interest is the es-
tate of deceased .
DOCTRINE: Pending the filing of administration proceedings,
the heirs without doubt have legal personality to bring suit
in behalf of the estate of the decedent in accordance with
the provision of Article 777 of the New Civil Code "that the
rights to succession are transmitted from the moment of the
death of the decedent." The provision in turn is the founda-
tion of the principle that the property, rights and obligations
to the extent and value of the inheritance of a person are
transmitted through his death to another or others by his will
or by operation of law.Even if administration proceedings
have already been commenced, the heirs may still bring the
suit if an administrator has not yet been appointed. The heirs
cannot be expected to wait for the appointment of an admin-
istrator; then wait further to see if the administrator ap-
pointed would care enough to file a suit to protect the rights
and the interests of the deceased; and in the meantime do
nothing while the rights and the properties of the decedent
are violated or dissipated.
CLAIMS AGAINST THE ESTATE
RULE 86
Sec. 1. Notice to creditors to be issued by court. - Immedi-
ately after granting letters testamentary or of administra-
tion, the court shall issue a notice requiring all persons hav-
ing money claims against the decedent to file them in the of-
fice of the clerk of said court.chanrobles virtualawlibrary
Sec. 2. Time within which claims shall be filed. - In the notice
provided in the preceding section, the court shall state the
time for the filing of claims against the estate, which shall not
be more than twelve (12) nor less than six (6) months after
the date of the first publication of the notice. However, at
any time before an order of distribution is entered, on appli-
cation of a creditor who has failed to file his claim within the
time previously limited, the court may, for cause shown and
on such terms as are equitable, allow such claim to be filed
within a time not exceeding one (1) month.
Sec. 3. Publication of notice to creditors. - Every executor or
administrator shall, immediately after the notice to creditors
is issued, cause the same to be published three (3) weeks
successively in a newspaper of general circulation in the
province, and to be posted for the same period in four public
places in the province and in two public places in the munic-
ipality where the decedent last resided. chanrobles virtua
law library
Sec. 4. Filing copy of printed notice. - Within ten (10) days
after the notice has been published and posted in accord-
ance with the preceding section, the executor or administra-
tor shall file or cause to be filed in the court a printed copy
of the notice accompanied with an affidavit setting forth the
dates of the first and last publication thereof and the name
of the newspaper in which the same is printed.
Sec. 5. Claims which must be filed under the notice. - If not
filed, barred; exceptions. All claims for money against the de-
cedent, arising from contract, express or implied, whether
the same be due, not due, or contingent, all claims for fu-
neral expenses and expenses for the last sickness of the de-
cedent, and judgment for money against the decedent, must
be filed within the time limited in the notice; otherwise they
are barred forever, except that they may be set forth as
counterclaims in any action that the executor or administra-
tor may bring against the claimants. Where an executor or
administrator commences an action, or prosecutes an action
already commenced by the deceased in his lifetime, the
debtor may set forth by answer the claims he has against the
decedent, instead of presenting them independently to the
court as herein provided, and mutual claims may be set off
against each other in such action; and if final judgment is ren-
dered in favor of the defendant, the amount so determined
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shall be considered the true balance against the estate, as
though the claim had been presented directly before the
court in the administration proceedings. Claims not yet due
or contingent, may be approved at their present value.
Sec. 6. Solidary obligation of decedent. - Where the obliga-
tion of the decedent is solidary with another debtor, the
claim shall be filed against the decedent as if he were the
only debtor, without prejudice to the right of the estate to
recover contribution form the other debtor. In a joint obliga-
tion of the decedent, the claim shall be confined to the por-
tion belonging to him.
Sec. 7. Mortgage debt due from estate. - A creditor holding
a claim against the deceased secured by mortgage or other
collateral security, may abandon the security and prosecute
his claim in the manner provided in this rule, and share in the
general distribution of the assets of the estate; or he may
foreclose his mortgage or realize upon his security, by action
in court, making the executor or administrator a party de-
fendant, and if there is a judgment for a deficiency, after the
sale of the mortgaged premises, or the property pledged, in
the foreclosure or other proceeding to realize upon the se-
curity, he may claim his deficiency judgment in the manner
provided in the preceding section; or he may rely upon his
mortgage of other security alone, and foreclose the same at
any time within the period of the statute of limitations, and
in that event he shall not be admitted as a creditor, and shall
receive no share in the distribution of the other assets of the
estate; but nothing herein contained shall prohibit the exec-
utor or administrator from redeeming the property mort-
gaged or pledged, by paying the debt for which it is held as
security, under the direction of the court, if the court shall
adjudge it to be for the best interest of the estate that such
redemption shall be made.
Sec. 8. Claim of executor or administrator against an estate.
- If the executor or administrator has a claim against the es-
tate he represents, he shall give notice thereof, in writing, to
the court, and the court shall appoint a special administrator,
who shall, in the adjustment of such claim, have the same
power and be subject to the same liability as the general ad-
ministrator or executor in the settlement of other claims. The
court may order the executor or administrator to pay to the
special administrator necessary funds to defend such claim.
Sec. 9. How to file a claim. Contents thereof; Notice to exec-
utor or administrator. - A claim may be filed by delivering the
same with the necessary vouchers to the clerk of court and
by serving a copy thereof on the executor or administrator.
If the claim be founded on a bond, bill, note or any other in-
strument, the original need not be filed, but a copy thereof
with all indorsements shall be attached to the claim and filed
therewith. On demand, however, of the executor or admin-
istrator, or by order of the court or judge, the original shall
be exhibited, unless it be lost or destroyed, in which case the
claimant must accompany his claim with affidavit or affida-
vits containing a copy or particular description of the instru-
ment and stating its loss or destruction. When the claim is
due, it must be supported by affidavit stating the amount
justly due, that no payments have been made thereon which
are not credited, and that there are no offsets to the same,
to the knowledge of the affiant. If the claim is not due, or is
contingent, when filed, it must also be supported by affidavit
stating the particulars thereof. When the affidavit is made by
a person other than the claimant, he must set forth therein
the reason why it is not made by the claimant. The claim once
filed shall be attached to the record of the case in which the
letters testamentary or of administration were issued, alt-
hough the court, in its discretion, and as a matter of conven-
ience, may order all the claims to be collected in a separate
folder.
Sec. 10. Answer of executor or administrator; Offsets. -
Within fifteen (15) days after service of a copy of the claim
on the executor or administrator, he shall file his answer ad-
mitting or denying the claim specifically, and setting forth the
substance of the matters which are relied upon to support
the admission or denial. If he has no knowledge sufficient to
enable him to admit or deny specifically, he shall state such
want of knowledge. The executor or administrator in his an-
swer shall allege in offset any claim which the decedent be-
fore death has against the claimant, and his failure to do so
shall bar the claim forever. A copy of the answer shall be
served by the executor or administrator on the claimant. The
court in its discretion may extend the time for filing such an-
swer.
Sec. 11. Disposition of admitted claim. - Any claim admitted
entirely by the executor or administrator shall immediately
be submitted by the clerk to the court who may approve the
same without hearing; but the court, in its discretion, before
approving the claim, may order that known heirs, legatees,
or devisees be notified and heard. If upon hearing, an heir,
legatee, or devisee opposes the claim, the court may, in its
discretion, allow him fifteen (15) days to file an answer to the
claim in the manner prescribed in the preceding section.
Sec. 12. Trial of contested claim. - Upon the filing of an an-
swer to a claim, or upon the expiration of the time for such
filing, the clerk of court shall set the claim for trial with notice
to both parties. The court may refer the claim to a commis-
sioner.
Sec. 13. Judgment appealable. - The judgment of the court
approving or disapproving a claim, shall be filed with the rec-
ord of the administration proceedings with notice to both
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parties, and is appealable as in ordinary cases. A judgment
against the executor or administrator shall be that he pay, in
due course of administration, the amount ascertained to be
due, and it shall not create any lien upon the property of the
estate, or give to the judgment creditor any priority of pay-
ment.
Sec. 14. Costs. - When the executor or administrator, in his
answer, admits and offers to pay part of a claim, and the
claimant refuses to accept the amount offered in satisfaction
of his claim, if he fails to obtain a more favorable judgment,
he cannot recover costs, but must pay to the executor or ad-
ministrator costs from the time of the offer. Where an action
commenced against the deceased for money has been dis-
continued and the claim embraced therein presented as in
this rule provided, the prevailing party shall be allowed the
costs of his action up to the time of its discontinuance.
RULE 88
Sec. 1. Debts paid in full if estate sufficient. - If, after hearing
all the money claims against the estate, and after ascertain-
ing the amount of such claims, it appears that there are suf-
ficient assets to pay debts, the executor or administrator
shall pay the same within the time limited for that purpose.
Sec. 2. Part of estate from which debt paid when provision
made by will. - If the testator makes provision by his will, or
designates the estate to be appropriated for the payment of
debts, the expenses of administration, or the family ex-
penses, they shall be paid according to the provisions of the
will; but if the provisions made by the will or the estate ap-
propriated, is not sufficient for that purpose, such part of the
estate of the testator, real or personal, as is not disposed of
by will, if any, shall be appropriated for that purpose.
Sec. 3. Personalty first chargeable for debts, then realty. -
The personal estate of the deceased not disposed of by will
shall be first chargeable with the payment of debts and ex-
penses; and if said personal estate is not sufficient for that
purpose, or its sale would redound to the detriment of the
participants of the estate, the whole of the real estate not
disposed of by will, or so much thereof as is necessary, may
be sold, mortgaged, or otherwise encumbered for that pur-
pose by the executor or administrator, after obtaining the
authority of the court therefor. Any deficiency shall be met
by contributions in accordance with the provisions of section
6 of this rule.
Sec. 4. Estate to be retained to meet contingent claims. - If
the court is satisfied that a contingent claim duly filed is valid,
it may order the executor or administrator to retain in his
hands sufficient estate to pay such contingent claim when
the same becomes absolute, or, if the estate is insolvent, suf-
ficient to pay a portion equal to the dividend of the other
creditors.
Sec. 5. How contingent claim becoming absolute in two
years allowed and paid; Action against distributees later. If
such contingent claim becomes absolute and is presented to
the court, or to the executor or administrator, within two (2)
years from the time limited for other creditors to present
their claims, it may be allowed by the court if not disputed
by the executor or administrator, and, if disputed, it may be
proved and allowed or disallowed by the court as the facts
may warrant. If the contingent claim is allowed, the creditor
shall receive payment to the same extent as the other credi-
tors if the estate retained by the executor or administrator is
sufficient. But if the claim is not so presented, after having
become absolute, within said two (2) years, and allowed, the
assets retained in the hands of the executor or administrator,
not exhausted in the payment of claims, shall be distributed
by the order of the court to the persons entitled to the same;
but the assets so distributed may still be applied to the pay-
ment of the claim when established, and the creditor may
maintain an action against the distributees to recover the
debt, and such distributees and their estates shall be liable
for the debt in proportion to the estate they have respec-
tively received from the property of the deceased.
Sec. 6. Court to fix contributive shares where devisees, leg-
atees, or heirs have been in possession. - Where devisees,
legatees, or heirs have entered into possession of portions of
the estate before the debts and expenses have been settled
and paid, and have become liable to contribute for the pay-
ment of such debts and expenses, the court having jurisdic-
tion of the estate may, by order for that purpose, after hear-
ing, settle the amount of their several liabilities, and order
how much and in what manner each person shall contribute,
and may issue execution as circumstances require.
Sec. 7. Order of payment if estate insolvent. - If the assets
which can be appropriated for the payment of debts are not
sufficient for that purpose, the executor or administrator
shall pay the debts against the estate, observing the provi-
sions of Articles 1059 and 2239 to 2251 of the Civil Code.
Sec. 8. Dividends to be paid in proportion to claims. - If there
are no assets sufficient to pay the credits of any one class of
creditors after paying the credits entitled to preference over
it, each creditor within such class shall be paid a dividend in
proportion to his claim. No creditor of any one class shall re-
ceive any payment until those of the preceding class are paid.
Sec. 9. Estate of insolvent nonresident, how disposed of. - In
case administration is taken in the Philippines of the estate
of a person who was at the time of his death an inhabitant of
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another country, and who died insolvent, his estate found in
the Philippines shall, as far as practicable, be so disposed of
that his creditors here and elsewhere may receive each an
equal share, in proportion to their respective credits.
Sec. 10. When and how claim proved outside the Philippines
against insolvent resident's estate paid. - If it appears to the
court having jurisdiction that claims have been duly proven
in another country against the estate of an insolvent who
was at the time of his death an inhabitant of the Philippines,
and that the executor or administrator in the Philippines had
knowledge of the presentation of such claims in such country
and an opportunity to contest their allowance, the court shall
receive a certified list of such claims, when perfected in such
country, and add the same to the list of claims proved against
the deceased person in the Philippines so that a just distribu-
tion of the whole estate may be made equally among all its
creditors according to their respective claims; but the benefit
of this and the preceding sections shall not be extended to
the creditors in another country if the property of such de-
ceased person there found is not equally apportioned to the
creditors residing in the Philippines and the other creditors,
according to their respective claims.
Sec. 11. Order for payment of debts. - Before the expiration
of the time limited for the payment of the debts, the court
shall order the payment thereof, and the distribution of the
assets received by the executor or administrator for that pur-
pose among the creditors, as the circumstances of the estate
require and in accordance with the provisions of this rule.
Sec. 12. Orders relating to payment of debts where appeal
is taken. - If an appeal has been taken from a decision of the
court concerning a claim, the court may suspend the order
for the payment of the debts or may order the distribution
among the creditors whose claims are definitely allowed,
leaving in the hands of the executor or administrator suffi-
cient assets to pay the claim disputed and appealed. When a
disputed claim is finally settled the court having jurisdiction
of the estate shall order the same to be paid out of the assets
retained to the same extent and in the same proportion with
the claims of other creditors.
Sec. 13. When subsequent distribution of assets ordered. -
If the whole of the debts are not paid on the first distribution,
and if the whole assets are not distributed, or other assets
afterwards come to the hands of the executor or administra-
tor, the court may from time to time make further orders for
the distribution of assets.
Sec. 14. Creditors to be paid in accordance with terms of or-
der. - When an order is made for the distribution of assets
among the creditors, the executor or administrator shall, as
soon as the time of payment arrives, pay the creditors the
amounts of their claims, or the dividend thereon, in accord-
ance with the terms of such order.
Sec. 15. Time for paying debts and legacies fixed, or ex-
tended after notice, within what periods. - On granting let-
ters testamentary or administration the court shall allow to
the executor or administrator a time for disposing of the es-
tate and paying the debts and legacies of the deceased,
which shall not, in the first instance, exceed one (1) year; but
the court may, on application of the executor or administra-
tor and after hearing on such notice of the time and place
therefor given to all persons interested as it shall direct, ex-
tend the time as the circumstances of the estate require not
exceeding six (6) months for a single extension nor so that
the whole period allowed to the original executor or admin-
istrator shall exceed two (2) years.
Sec. 16. Successor of dead executor or administrator may
have time extended on notice within certain period. - When
an executor or administrator dies, and a new administrator
of the same estate is appointed, the court may extend the
time allowed for the payment of the debts or legacies be-
yond the time allowed to the original executor or administra-
tor, not exceeding six (6) months at a time and not exceeding
six (6) months beyond the time which the court might have
allowed to such original executor or administrator; and no-
tice shall be given of the time and place for hearing such ap-
plication, as required in the last preceding section.
RULE 3, SEC. 16, 20
Sec. 16. Death of party; duty of counsel.
Whenever a party to a pending action dies, and the claim is
not thereby extinguished, it shall be the duty of his counsel
to inform the court within thirty (30) days after such death
of the fact thereof, and to give the name and address of his
legal representative or representatives. Failure of counsel to
comply with this duty shall be a ground for disciplinary ac-
tion.
The heirs of the deceased may be allowed to be substituted
for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period
of thirty (30) days from notice.
If no legal representative is named by the counsel for the de-
ceased party, or if the one so named shall fail to appear
within the specified period, the court may order the oppos-
ing party, within a specified time, to procure the appoint-
ment of an executor or administrator for the estate of the
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deceased and the latter shall immediately appear for and on
behalf of the deceased. The court charges in procuring such
appointment, if defrayed by the opposing party, may be re-
covered as costs.
Sec. 20. Action on contractual money claims.
When the action is for recovery of money arising from con-
tract, express or implied, and the defendant dies before en-
try of final judgment in the court in which the action was
pending at the time of such death, it shall not be dismissed
but shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially provided
in these Rules for prosecuting claims against the estate of a
deceased person.
RULE 39, SEC. 7
Sec. 7. Execution in case of death of party.
In case of the death of party, execution may issue or be en-
forced in the following manner:
(a) In case of the death of the judgment obligee, upon the
application of his executor or administrator, or successor in
interest;
(b) In case of the death of the judgment obligor, against his
executor or administrator or successor in interest, if the judg-
ment be for the recovery of real or personal property, or the
enforcement of the lien thereon;
(c) In case of the death of the judgment obligor, after execu-
tion is actually levied upon any of his property, the same may
be sold for the satisfaction of the judgment obligation, and
the officer making the sale shall account to the corrsponding
executor or administrator for any surplus in his hands.
Statute of Claims
Period fixed by Sec.2, Rule 86 for the filing of claims against
the estate. The rule mandates certain creditors of a deceased
person to present their claims for examination and allow-
ance within a specified period, the purpose thereof being to
settle the estate with dispatch, so that the residue may be
delivered to the persons entitled thereto without their being
afterwards called to respond in actions for claims, which, un-
der the ordinary statute of limitations, have not yet pre-
scribed [Santos v. Manarang].
The range of the period is intended to give the court discre-
tion to fix the period for filing of claims. The probate court is
permitted to set the period that should not be less than six
(6) months nor more than twelve (12) months from the day
of the first publication of the notice thereof. Such period
when fixed by the court becomes mandatory.
Publication of Notice to Creditors
Publication of notice is constructive notice to all [Villanueva
v. PNB].
Types of Claims that must be filed with the Probate Court
1. All money claims against the decedent arising from con-
tract, express or implied, whether the same be due, not
due, or contingent;
2. All claims for funeral expenses and expenses for the last
sickness of the decedent; and
3. Judgment for money against the decedent. The judg-
ment must be presented as a claim against the estate,
where the judgment debtor dies before levy on execu-
tion of his properties.
Note: The enumeration is exclusive.
Money claims
These are claims for money, debt or interest thereon upon a
liability contracted by the decedent before his death.
Contingent claim
It is one by which, by its nature is necessarily dependent
upon an uncertain event for its existence and claim, and its
validity and enforceability depending upon an uncertain
event [Gasket and Co. v. Tan Sit].
Note: A deficiency judgment is a contingent claim [First City
Bank of New York v. Cheng Tan].
Three (3) distinct, alternative remedies available to a mort-
gage creditor upon the death of the mortgagor
1. To waive the security mortgage and claim the entire
debt from the estate as an ordinary claim. By filing a
money claim against the estate, he is deemed to have
abandoned the mortgage and thereafter cannot file a
foreclosure suit if he fails to recover his money claim
against the estate;
2. To foreclose the mortgage judicially and prove any defi-
ciency as an ordinary claim. The foreclosure suit should
be against the executor or administrator as party de-
fendant. In the event that a creditor fails to fully recover
his claim, he may obtain deficiency judgment and file it
as a claim against the estate in the manner provided by
this Rule.
3. To rely solely on the mortgage and foreclose the same
at any time before it is barred by prescription without
right to claim for any deficiency. This mode includes ex-
trajudicial foreclosure of sale and its exercise precludes
one from recovery any balance of indebtedness against
the estate and frees the estate from further liability.
QUESTIONS
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Q: Is the estate of the deceased person burdened with the
lien of creditors?
A: Yes. Upon the death of a person, all his property is bur-
dened with all his debts, his death creating an equitable
lien thereon for the benefit of creditors. Such lien con-
tinues until the debts are extinguished either by pay-
ment, prescription, or satisfaction in one of the modes
recognized by law [Suiliong and Co. v. Chio-Taysan].
Q: What is the rationale in fixing the period to file a claim
against the estate?
A: To insure a speedy settlement of the affairs of the de-
ceased person and the early delivery of the property to
the person entitled to the same [Santos v. Manarang].
Q: Is an extension of the given period allowed?
A: Yes. The period is not exclusive. Money claims against
the estate may be allowed any time before an order of
distribution is entered, at the discretion of the court for
cause and upon such terms as are equitable [Qui-
sumbing v. Guison].
Q: What is the consequence if the claims are not filed
within the time in the notice?
A: If the said claims are not filed within the time limited in
the notice, they are barred forever from presenting
them.
Exception: Under Sec. 5, Rule 86, these claims may be
set forth as counterclaims in any action that the execu-
tor or administrator may bring against the claimants.
Q: What about claims which are not yet due, must they
likewise be filed within the limited time?
A: Yes. Not only claims due, but also claims not due or
contingent should be filed otherwise they too are
barred forever.
Q: As a general rule, a probate court has no jurisdiction to
entertain a claim in favor of the estate against a third
person as the same must be the subject of an ordinary
action. What is the exception?
A: Rule 86, Sec. 10 authorizes the executor or administra-
tor to interpose any counterclaim in offset of a claim
against the estate. Said counterclaim is regarded as a
compulsory counterclaim as the failure to file the same
shall bar the claim forever.
Q: Does the probate court have the power to issue writ of
execution to pay claims?
A: Generally, no. A writ of execution is not the proper pro-
cedure for the payment of debts and expenses of ad-
ministration, according to Aldamiz v. Judge of CFI of
Mindoro. The proper procedure is for the court to order
the sale of personal estate or the sale or mortgage of
real property of the deceased and all debts and ex-
penses of the administration should be paid out of the
proceeds of such sale or mortgage. The order fr the sale
or mortgage should be issued upon motion of the ad-
ministrator and with the written notice to all the heirs,
legatees, and devisees residing in the Philippines, ac-
cording to Sec. 3, Rule 88, and Sec. 2, Rule 89. And when
sale or mortgage is to be made, the regulations con-
tained in Rule 89, Sec. 7, should be complied with.
Exceptions:
1. To satisfy the distributive share of devisees, lega-
tees, and heirs to possession of the decedent’s as-
sets;
2. To enforce payment of the expenses of partition;
and
3. To satisfy the costs when a person is cited for ex-
amination in probate proceedings.
Q: Is an heir or distribute liable for outstanding claims
against the estate?
A: Heirs are not required to respond with their own prop-
erty for the debts of their deceased ancestors. But even
after the partition of the estate, the heirs and distrib-
utes are liable individually for the payment of all lawful
outstanding claims against the estate in proportion to
the amount or value of the property they have respec-
tively received from the estate. The hereditary prop-
erty consists only of that part which remains after the
settlement of all lawful claims against the estate, for
the settlement of which the entire estate is first liable.
The heirs cannot by any act of their own or by agree-
ment among themselves, reduce the creditors’ security
for the payment of their claims [Pavis v. De la Raja].
JURISPRUDENCE
UNION BANK OF THE PHILIPPINES V. EDMUND
SANTIBAÑEZ AND FLORENCE SANTIBAÑEZ ARI-
OLA
SUMMARY: Edmund Santibañez with his father obtained
various loans from FCCC to buy 3 tractors at the same time
executing promissory notes. His father died leaving a holo-
graphic will which he submitted for probate. During the pen-
dency of the probate proceeding, Edmund executed a Joint
Agreement with his sister, Florence, dividing between them-
selves the properties of their late father with assumption of
indebtedness. FCCC through a deed of assignment assigned
the credit of Edmund and his father to Union Bank. Union
Bank now filed a case to collect on the debt of Edmund and
his father. RTC, CA and SC held that Florence cannot be liable
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on the debt because their Joint Agreement was invalid be-
cause there can be no partition until after the will has been
probated, therefore, they cannot be held liable based on the
Joint Aggreement. Also, Union Bank should have filed its
money claim with the probate court in accordance with Sec-
tion 5, Rule 86 of the Revised Rules of Court.
DOCTRINE:
• In testate succession, there can be no valid partition
among the heirs until after the will has been probated.
The law enjoins the probate of a will and the public re-
quires it, because unless a will is probated and notice
thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory.
The authentication of a will decides no other question
than such as touch upon the capacity of the testator and
the compliance with those requirements or solemnities
which the law prescribes for the validity of a will.
• BUT the properties to be partitioned must be the same
properties embraced in the will.
• To dispose of the properties in any way without the pro-
bate court’s approval is tantamount to divesting it with
jurisdiction which the Court cannot allow.
• The filing of a money claim against the decedent’s estate
in the probate court is mandatory.
The law strictly requires the prompt presentation and dispo-
sition of the claims against the decedent's estate in order
to settle the affairs of the estate as soon as possible, pay
off its debts and distribute the residue.
PNB V. CA
SUMMARY: Spouses Antonio and Asuncion Chua owns a par-
cel of land. When Antonio died, the probate court appointed
their son Allan as special administrator of Antonio's estate.
Allan was authorized by the court to obtain a loan from PNB,
to be secured by a real estate mortgage over the said parcel
of land. Allan obtained such loan. Since there was failure to
pay, PNB extrajudicially foreclosed the REM. In the public
auction, PNB was the highest bidder but the loan still had a
payable balance. To claim this deficiency, PNB instituted an
action against both Mrs. Chua and Allan (in his capacity as
administrator). Although the Chuas were in default, the RTC
dismissed PNB's complaint. The CA affirmed this dismissal. In
the SC, PNB argues that under prevailing jurisprudence and
Act 3135, the mortgagee has the right to recover the defi-
ciency from the debtor. SC disagreed and applied instead
Sec. 7, Rule 86 of the ROC, considering that what was in-
volved was a foreclosure of mortgage arising out of a settle-
ment of estate.
DOCTRINE: Sec. 7, Rule 86 ROC grants to the mortgagee 3
distinct, independent and mutually exclusive remedies that
can be alternatively pursued by the mortgage creditor for the
satisfaction of his credit in case the mortgagor dies, among
them:
1. to waive the mortgage and claim the entire debt from
the estate of the mortgagor as an ordinary claim;
2. to foreclose the mortgage judicially and prove any defi-
ciency as an ordinary claim; and
3. to rely on the mortgage exclusively, foreclosing the
same at any time before it is barred by prescription with-
out right to file a claim for any deficiency.
A creditor who elects to foreclose by extrajudicial sale (3rd
mode) waives all right to recover against the estate of the
deceased debtor for any deficiency remaining unpaid after
the sale.
ALDAMIZ V. CFI JUDGE
SUMMARY: The heirs of the decedent instituted probate
proceedings for the settlement of the decedent’s estate.
Gavino was appointed as administrator and he was assisted
by Atty. Luna for the ten years they were settling the estate.
Atty Luna never took the trouble of charging them for his
professional services showing extreme liberality due to
friendship and other personal considerations toward his cli-
ents. After ten years, the administrator through Atty. Luna,
filed a partition project which was disapproved by the court
ordering them to pay all the expenses of administration first,
including attorney’s fees. Hence, Atty. Luna submitted proof
of his professional standing so that the court might fix the
amount of his compensation. The court awarded him
P28,000 in attorney’s fees but the administrator paid only
P5,000 prompting him to apply for a writ of execution which
was granted. Some properties belonging to the partnership
of the decedent and the administrator was sold at a public
auction. The issue in the present case is the propriety of the
award of compensation to Atty. Luna and the propriety of
the writ of execution.
The SC held that the award of compensation and the writ of
execution are null and void.
DOCTRINE: A writ of execution is not the proper procedure
allowed by the Rules of Court for the payment of debts and
expenses of administration. The proper procedure is for the
court to order the sale of personal estate, or the sale or mort-
gage of real property of the deceased.
Execution may issue only where the devisees, legatees or
heirs have entered into possession of their respective por-
tions in the estate prior to settlement and payment of the
debts and expenses of administration and it is later ascer-
tained that there are such debts and expenses to be paid, in
which case "the court having jurisdiction of the estate may,
by order for that purpose, after hearing, settle the amount
of their several liabilities, and order how much and in what
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manner each person shall contribute, and may issue execu-
tion if circumstances require".
DISTRIBUTION AND CLOSURE OF ESTATE
RULE 90
Sec. 1. When order for distribution of residue made. - When
the debts, funeral charges, and expenses of administration,
the allowance to the widow, and inheritance tax, if any,
chargeable to the estate in accordance with law, have been
paid, the court, on the application of the executor or admin-
istrator, or of a person interested in the estate, and after
hearing upon notice, shall assign the residue of the estate to
the persons entitled to the same, naming them and the pro-
portions, or parts, to which each is entitled, and such person
may demand and recover their respective shares from the
executor or administrator, or any other person having the
same in his possession. If there is a controversy before the
court as to who are the lawful heirs of the deceased person
or as to the distributive shares to which each person is enti-
tled under the law, the controversy shall be heard and de-
cided as in ordinary cases.
No distribution shall be allowed until the payment of the ob-
ligations above mentioned has been made or provided for,
unless the distributees, or any of them, give a bond, in a sum
to be fixed by the court, conditioned for the payment of said
obligations within such time as the court directs.
Sec. 2. Questions as to advancement to be determined. -
Questions as to advancement made, or alleged to have been
made, by the deceased to any heir may be heard and deter-
mined by the court having jurisdiction of the estate proceed-
ings; and the final order of the court thereon shall be binding
on the person raising the questions and on the heir.
Sec. 3. By whom expenses of partition paid. - If at the time
of the distribution the executor or administrator has re-
tained sufficient effects in his hands which may lawfully be
applied for the expenses of partition of the properties dis-
tributed, such expenses of partition may be paid by such ex-
ecutor or administrator when it appears equitable to the
court and not inconsistent with the intention of the testator;
otherwise, they shall be paid by the parties in proportion to
their respective shares or interest in the premises, and the
apportionment shall be settled and allowed by the court,
and, if any person interested in the partition does not pay his
proportion or share, the court may issue an execution in the
name of the executor or administrator against the party not
paying for the sum assessed. chan robles virtual law library
Sec. 4. Recording the order of partition of estate. - Certified
copies of final orders and judgments of the court relating to
the real estate or the partition thereof shall be recorded in
the registry of deeds of the province where the property is
situated.
Instances of proper exercise of powers of the probate court
The probate court, in the exercise of its jurisdiction to distrib-
ute the estate, has the power to determine to proportion or
parts to which each distributes is entitled [Vda. De Kilayko v.
Tengco].
Included in the jurisdiction of the probate court to make a
declaration of heirs is the power to entertain the question
whether or not a person is an acknowledged natural child of
the decedent [Conde v. Abaya].
Effect of a final decree of distribution
A final decree of distribution of the estate of a deceased per-
son vests the title to the land of the estate in the distributees.
If the decree is erroneous, it should be corrected by oppor-
tune appeal, for once it is final, its binding effect is like any
other judgment in rem, unless properly set aside for lack of
jurisdiction or fraud. Where the court has validly issued a de-
cree of distribution and the same has become final, the va-
lidity of the project of partition becomes irrelevant [Vda. De
Kilayko v. Tengco].
Loss of Jurisdiction
The probate court loses jurisdiction of an estate under ad-
ministration only after the payment of all debts and the re-
maining estate delivered to the heirs entitled to receive the
same. The finality of the approval of the project of partition
by itself alone does not terminate the proceeding. As long as
the order of the distribution has not been complied with, the
probate proceedings cannot be deemed closed and termi-
nated [Guilas v. Judge of CFI Pampanga].
Remedies of an heir who has not received his share
If an heir has not received his share, his proper remedy is to
file a motion with the probate court for delivery to him of his
share or if the estate proceedings had been closed, he should
file a motion for reopening of the proceeding, within the pre-
scriptive period, and not to file an independent action for an-
nulment of the project of partition [Guilas v. Judge of CFI
Pampanga].
However, where the order closing the intestate proceeding
was already final and executory, the same cannot be reo-
pened on a motion therefore filed after the lapse of the
reglementary period [Divinagracia, et al. v. Rovira].
As long as the order of distribution of the estate has not been
complied with, the probate proceedings cannot be deemed
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closed and terminated, because a judicial partition is not fi-
nal and conclusive and does not prevent the heirs from bring-
ing an action to obtain his share, provided the prescriptive
period therefore has not elapsed. The better practice, how-
ever, for the heir who has not received his share, is to de-
mand his share through proper motion in the same probate
or administrative proceedings, or for the reopening of the
probate or administrative proceedings if it had already been
closed, and not through an independent action, which would
be tried tried by another court or judge which may thus re-
verse a decision or order of the probate or intestate court
already final and executed and reshuffle properties long ago
distributed and disposed of [Timbol v. Cano].
QUESTIONS
Q: When must the order for distribution of residue be
made?
A: When the debts, funeral charges, and expenses of ad-
ministration, the allowance of the widow, and inher-
itance tax, if any, chargeable to the estate in accord-
ance with law, have been paid, the court shall assign
the residue of the estate to the persons entitled to the
same, naming them and the proportions, or parts, to
which each is entitled.
No distribution shall be allowed until the payment of
the abovementioned obligations have been made or
provided for, unless the distributes, or any one of
them, give a bond in ta sum to be fixed by the court,
conditioned for the payment of said obligations within
such time as the court directs.
Q: May the court hear and determine questions as to ad-
vancement made by the decedent?
A: Yes. Questions as to advancement made, or alleged to
have been made, by the deceased to any heir may be
heard and determined by the court having jurisdiction
of the estate proceedings; and the final order of the
court thereon shall be binding on the person raising
the questions and on the heir.
Q: Who pays the expenses of partition?
A: (1) The executor or administrator if at the time of the
distribution he has retained sufficient effects in his
hands for as long as it appears equitable to the court
and not inconsistent with the intention of the testa-
tor; otherwise,
(2) by the parties in proportion to their respective
shares or interest in the premises.
Q: What shall be done with the court’s order of partition
of the estate?
A: The Rule provides that certified copies of final orders
and judgments relating to the real estate or the parti-
tion thereof shall be recorded in the registry of deeds
of the province where the property is situated.
JURISPRUDENCE
FE D. QUITA V. CA
SUMMARY: Fe and Arturo were Filipinos who married in the
Philippines in 1941. They never had children with each other.
In 1947, Arturo married Blandina (his marriage with Fe was
subsisting at the time). In California, Fe sued Arturo for di-
vorce. She submitted a private writing dated 1950 showing
their agreement to live separately, as well as a settlement of
their conjugal properties. By 1954, Fe was an American citi-
zen. In that same year, she obtained a final judgment of di-
vorce. Three weeks later, she married another man (that
marriage ended in divorce as well.) She married a third time.
Arturo died intestate in 1972. In proceedings for the issuance
of letters of administration for Arturo’s estate, Blandina and
her children with Arturo opposed. The RTC found for Blan-
dina and co. Fe moved for the immediate declaration of Ar-
turo’s heirs and the distribution of his estate. Blandina’s chil-
dren were not able to submit their records of birth so the RTC
declared Arturo’s brother and Fe as his heirs, finding that the
divorce was not recognized in this jurisdiction so the mar-
riage subsisted until Arturo’s death. On motion for reconsid-
eration, the children were allowed to present proof as to Ar-
turo’s recognition of them. All but one of the children were
found by the court to have been recognized by Arturo as his
legitimate children, so the children and Fe were declared as
Arturo’s heirs. On appeal, the CA remanded the case to the
trial court for further proceedings citing §1 of Rule 90. Fe pe-
titioned the SC for review on certiorari, which the SC denied:
the SC also cited §1, Rule 90, because Fe’s citizenship at the
time of her divorce was an issue which had to be heard and
decided on since it affects the recognition of that divorce in
this jurisdiction.
DOCTRINE:
If there is a controversy before the court as to who are the
lawful heirs of the deceased person or as to the distributive
shares to which each person is entitled under the law, the
controversy shall be heard and decided as in ordinary cases.
(citing §1, Rule 90)
(implied): A person’s citizenship at the time a divorce is ob-
tained in a foreign jurisdiction is an example of a matter in-
volving that person’s right to inherit from a decedent ,which
must be heard and decided as in ordinary cases, requiring
findings of fact by the lower court.
EMILIO PACIOLES, JR. V. MIGUELA CHUATCO-
CHING
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SUMMARY: Miguelita died intestate leaving real properties,
stock investments and bank deposits. She was survived by
her husband and their 2 minor children. Her husband filed a
petition for the settlement of her estate, however, Mi-
guelita’s mother opposed and prayed that letters of admin-
istration be issued to her instead, alleging that Miguelita’s
estate is composed of paraphernal properties. When Paci-
oles argued that Miguela has no interest in the estate, not
being a compulsory heir, Miguela countered that she gave
half of her inherited properties to Miguelita to be used in a
business venture. The RTC appointed Miguelita’s husband
and brother as joint regular administrators of the estate, and
later on declared the husband and the 2 minor children as
the compulsory heirs. RTC denied the prayer for partition
and distribution for being premature. The CA affirmed. The
SC reversed, ruling that the RTC, as intestate court, had no
jurisdiction to hear and pass upon questions of ownership in-
volving properties claimed to be part of the decedent’s es-
tate.
DOCTRINE: The general rule is that the 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 dur-
ing the proceedings. The rational for this rule is that such
court exercises special and limited jurisdiction. A deviation to
the rule is the principle that 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. In such situations, the adjudication
is merely incidental and provisional and is subject to the final
decision in a separate action to resolve title.
ESCHEATS
RULE 91
Sec. 1. When and by whom petition filed. - When a person
dies intestate, seized of real or personal property in the Phil-
ippines, leaving no heir or person by law entitled to the same,
the Solicitor General or his representative in behalf of the Re-
public of the Philippines, may file a petition in the Court of
First Instance of the province where the deceased last re-
sided or in which he had estate, if he resided out of the Phil-
ippines, setting forth the facts, and praying that the estate of
the deceased be declared escheated.chanrobles virtualawli-
brary
Sec. 2. Order for hearing. - If the petition is sufficient in form
and substance, the court, by an order reciting the purpose of
the petition, shall fix a date and place for the hearing thereof,
which date shall be not more than six (6) months after the
entry of the order, and shall direct that a copy of the order
be published before the hearing at least once a week for six
(6) successive weeks in some newspaper of general circula-
tion published in the province, as the court shall deem best.
Sec. 3. Hearing and judgment. - Upon the satisfactory proof
in open court on the date fixed in the order that such order
has been published as directed and that the person died in-
testate, seized of real or personal property in the Philippines,
leaving no heir or person entitled to the same, and no suffi-
cient cause being shown to the contrary, the court shall ad-
judge that the estate of the deceased in the Philippines, after
the payment of just debts and charges, shall escheat; and
shall, pursuant to law, assign the personal estate to the mu-
nicipality or city where he last resided in the Philippines, and
the real estate to the municipalities or cities, respectively, in
which the same is situated. If the deceased never resided in
the Philippines, the whole estate may be assigned to the re-
spective municipalities or cities where the same is located.
Such estate shall be for the benefit of public schools, and
public charitable institutions and centers in said municipali-
ties or cities.
The court, at the instance of an interested party, or on its
own motion, may order the establishment of a permanent
trust, so that only the income from the property shall be
used.
Sec. 4. When and by whom claim to estate filed. - If a devi-
see, legatee, heir, widow, widower or other person entitled
to such estate appears and files a claim thereto with the
court within five (5) years from the date of such judgment,
such person shall have possession of and title to the same,
or if sold, the municipality or city shall be accountable to him
for the proceeds, after deducting reasonable charges for the
care of the estate; but a claim not made within said time shall
be forever barred.
Sec. 5. Other actions for escheat. - Until otherwise provided
by law, actions for reversion or escheat of properties alien-
ated in violation of the Constitution or of any statute shall be
governed by this rule, except that the action shall be insti-
tuted in the province where the land lies in whole or in part.
Escheat - It is a proceeding, unlike that of succession or as-
signment, whereby the state, by virtue of 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-timers” [Republic v. CA].
Rationale for five (5) year time limitation to bar a person
from claiming property already escheated
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Since escheat is one of the incidents of sovereignty, the state
may, and usually does, prescribe the conditions and limits
the time within a claim to such property may be made. The
procedure by which the escheated property may be recov-
ered is generally prescribed by statute, and a time limit is im-
posed within which such action must be brought [Republic v.
CA].
The 5-year period is not a device capriciously conjured by the
state to defraud any claimant; on the contrary, it is decidedly
prescribed to encourage would-be claimants to be punctili-
ous in asserting their claims, otherwise they may lose them
forever in final judgment [Republic v. CA].
QUESTIONS
Q: Who is the real party in interest in all actions for the
reversion to the government of lands of the public do-
main?
A: The Republic of the Philippines is the real party in in-
terest. The action shall be instituted by the Solicitor
General or other officer acting in his stead, in behalf
of the Republic [Luis B. Manese, et al. v. Spouses Ve-
lasco, et al.].
Q: Is there an instance where escheat is proper even if
the decedent died testate?
A: If his will was not allowed.
Q: What happens if the claim on the escheated property
is made after the lapse of the five (5) year period?
A: The right to claim the property is lost and the escheat
judgment can no longer be nullified.
Q: Can the trial court convert an escheat proceeding into
an ordinary special proceeding?
A: No. The two actions are different from each other and
the requirements in vesting jurisdiction are likewise
different. In special proceedings, publication is once a
week for three (3) consecutive weeks while in escheat,
once a week for six (6) weeks.
JURISPRUDENCE
REPUBLIC V. CA AND AMADA SOLANO
SUMMARY: After the death of Hankins, the City Government
of Pasay escheated 2 parcels of land belonging to Hankins’
estate. 7 years later, Solano, Hankins’ domestic helper for 3
decades, filed a petition to annul the escheat proceedings ar-
guing that she had found the deed of donations made by
Hankins giving Solano the 2 parcels of land.
DOCTRINE: Escheat is a proceeding, unlike that of succession
or assignment, whereby the state, by virtue of its sover-
eignty, steps in and claims the real or personal property of a
person who dies intestate leaving no heir. A claimant to an
escheated property must file his claim within 5 years from
the date of such judgment, such person shall have possession
of and title to the same, or if sold, the municipality or city
shall be accountable to him for the proceeds, after deducting
the estate; but a claim not made shall be barred forever.
GUARDIANSHIP
RULE 92
Sec. 1. Where to institute proceedings. - Guardianship of the
person or estate of a minor or incompetent may be instituted
in the Court of First Instance of the province, or in the justice
of the peace court of the municipality, or in the municipal
court of the chartered city where the minor or incompetent
person resides, and if he resides in a foreign country, in the
Court of First Instance of the province wherein his property
or part thereof is situated; provided, however, that where
the value of the property of such minor or incompetent ex-
ceeds the jurisdiction of the justice of the peace or municipal
court, the proceedings shall be instituted in the Court of First
Instance.
In the City of Manila, the proceedings shall be instituted in
the Juvenile and Domestic Relations Court.
Sec. 2. Meaning of word "incompetent." - Under this rule,
the word "incompetent" includes persons suffering the pen-
alty of civil interdiction or who are hospitalized lepers, prod-
igals, deaf and dumb who are unable to read and write, those
who are of unsound mind, even though they have lucid in-
tervals, and persons not being of unsound mind, but by rea-
son of age, disease, weak mind, and other similar causes,
cannot, without outside aid, take care of themselves and
manage their property, becoming thereby an easy prey for
deceit and exploitation.
Sec. 3. Transfer of venue. - The court taking cognizance of a
guardianship proceeding, may transfer the same to the court
of another province or municipality wherein the ward has ac-
quired real property, if he has transferred thereto his bona-
fide residence, and the latter court shall have full jurisdiction
to continue the proceedings, without requiring payment of
additional court fees.
RULE 93
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Sec. 1. Who may petition for appointment of guardian for
resident. - Any relative, friend, or other person on behalf of
a resident minor or incompetent who has no parent or lawful
guardian, or the minor himself if fourteen years of age or
over, may petition the court having jurisdiction for the ap-
pointment of a general guardian for the person or estate, or
both, of such minor or incompetent. An officer of the Federal
Administration of the United States in the Philippines may
also file a petition in favor of a ward thereof, and the Director
of Health, in favor of an insane person who should be hospi-
talized, or in favor of an isolated leper.
Sec. 2. Contents of petition. - A petition for the appointment
of a general guardian must show, so far as known to the pe-
titioner:
(a) The jurisdictional facts;
(b) The minority or incompetency rendering the appoint-
ment necessary or convenient;
(c) The names, ages, and residences of the relatives of the
minor or incompetent, and of the persons having him in their
care;
(d) The probable value and character of his estate;
(e) The name of the person for whom letters of guardianship
are prayed.
The petition shall be verified; but no defect in the petition or
verification shall render void the issuance of letters of guard-
ianship.
Sec. 3. Court to set time for hearing; Notice thereof. - When
a petition for the appointment of a general guardian is filed,
the court shall fix a time and place for hearing the same, and
shall cause reasonable notice thereof to be given to the per-
sons mentioned in the petition residing in the province, in-
cluding the minor if above 14 years of age or the incompe-
tent himself, and may direct other general or special notice
thereof to be given.
Sec. 4. Opposition to petition. - Any interested person may,
by filing a written opposition, contest the petition on the
ground of majority of the alleged minor, competency of the
alleged incompetent, or the unsuitability of the person for
whom letters are prayed, and may pray that the petition be
dismissed, or that letters of guardianship issue to himself, or
to any suitable person named in the opposition.
Sec. 5. Hearing and order for letters to issue. - At the hearing
of the petition the alleged incompetent must be present if
able to attend, and it must be shown that the required notice
has been given. Thereupon the court shall hear the evidence
of the parties in support of their respective allegations, and,
if the person in question is a minor, or incompetent it shall
appoint a suitable guardian of his person or estate, or both,
with the powers and duties hereinafter specified. chan ro-
bles virtual law library
Sec. 6. When and how guardian for nonresident appointed;
Notice. - When a person liable to be put under guardianship
resides without the Philippines but has estate therein, any
relative or friend of such person, or any one interested in his
estate, in expectancy or otherwise, may petition a court hav-
ing jurisdiction for the appointment of a guardian for the es-
tate, and if, after notice given to such person and in such
manner as the court deems proper, by publication or other-
wise, and hearing, the court is satisfied that such nonresident
is a minor or incompetent rendering a guardian necessary or
convenient, it may appoint a guardian for such estate.
Sec. 7. Parents as guardians. - When the property of the
child under parental authority is worth two thousand pesos
or less, the father or the mother, without the necessity of
court appointment, shall be his legal guardian. When the
property of the child is worth more than two thousand pe-
sos, the father or the mother shall be considered guardian of
the child's property, with the duties and obligations of guard-
ians under these rules, and shall file the petition required by
section 2 thereof. For good reasons the court may, however,
appoint another suitable person.
Sec. 8. Service of judgment. - Final orders or judgments un-
der this rule shall be served upon the civil registrar of the
municipality or city where the minor or incompetent person
resides or where his property or part thereof is situated.
RULE 94
Sec. 1. Bond to be given before issuance of letters; Amount;
Conditions. - Before a guardian appointed enters upon the
execution of his trust, or letters of guardianship issue, he
shall give a bond, in such sum as the court directs, condi-
tioned as follows:
(a) To make and return to the court, within three (3) months,
a true and complete inventory of all the estate, real and per-
sonal, of his ward which shall come to his possession or
knowledge or to the possession or knowledge of any other
person for him;
(b) To faithfully execute the duties of his trust, to manage
and dispose of the estate according to these rules for the
best interests of the ward, and to provide for the proper care,
custody, and education of the ward;
(c) To render a true and just account of all the estate of the
ward in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the
same, at the time designated by these rules and such other
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times as the court directs; and at the expiration of his trust
to settle his accounts with the court and deliver and pay over
all the estate, effects, and moneys remaining in his hands, or
due from him on such settlement, to the person lawfully en-
titled thereto;
(d) To perform all orders of the court by him to be per-
formed.
Sec. 2. When new bond may be required and old sureties
discharged. - Whenever it is deemed necessary, the court
may require a new bond to be given by the guardian, and
may discharge the sureties on the old bond from further lia-
bility, after due notice to interested persons, when no injury
can result therefrom to those interested in the estate.
Sec. 3. Bonds to be filed; Actions thereon. - Every bond given
by a guardian shall be filed in the office of the clerk of the
court, and, in case of the breach of a condition thereof, may
be prosecuted in the same proceeding or in a separate action
for the use and benefit of the ward or of any other person
legally interested in the estate.
RULE 95
Sec. 1. Petition of guardian for leave to sell or encumber es-
tate. - When the income of an estate under guardianship is
insufficient to maintain the ward and his family, or to main-
tain and educate the ward when a minor, or when it appears
that it is for the benefit of the ward that his real estate or
some part thereof be sold, or mortgaged or otherwise en-
cumbered, and the proceeds thereof put out at interest, or
invested in some productive security, or in the improvement
or security of other real estate of the ward, the guardian may
present a verified petition to the court by which he was ap-
pointed setting forth such facts, and praying that an order
issue authorizing the sale or encumbrance.
Sec. 2. Order to show cause thereupon. - If it seems probable
that such sale or encumbrance is necessary, or would be ben-
eficial to the ward, the court shall make an order directing
the next of kin of the ward, and all persons interested in the
estate, to appear at a reasonable time and place therein
specified to show cause why the prayer of the petition should
not be granted.
Sec. 3. Hearing on return of order; Costs. - At the time and
place designated in the order to show cause, the court shall
hear the proofs and allegations of the petitioner and next of
kin, and other persons interested, together with their wit-
nesses, and grant or refuse the prayer of the petition as the
best interests of the ward require. The court shall make such
order as to costs of the hearing as may be just.
Sec. 4. Contents of order for sale or encumbrance, and how
long effective; Bond. - If, after full examination, it appears
that it is necessary, or would be beneficial to the ward, to sell
or encumber the estate, or some portion of it, the court shall
order such sale or encumbrance and that the proceeds
thereof be expended for the maintenance of the ward and
his family, or the education of the ward, if a minor, or for the
putting of the same out at interest, or the investment of the
same as the circumstances may require. The order shall spec-
ify the causes why the sale or encumbrance is necessary or
beneficial, and may direct that estate ordered sold be dis-
posed of at either public or private sale, subject to such con-
ditions as to the time and manner of payment, and security
where a part of the payment is deferred, as in the discretion
of the court are deemed most beneficial to the ward. The
original bond of the guardian shall stand as security for the
proper appropriation of the proceeds of the sale, but the
judge may, if deemed expedient, require an additional bond
as a condition for the granting of the order of sale. No order
of sale granted in pursuance of this section shall continue in
force more than one (1) year after granting the same, with-
out a sale being had.
Sec. 5. Court may order investment of proceeds and direct
management of estate. - The court may authorize and re-
quire the guardian to invest the proceeds of sales or encum-
brances, and any other of his ward's money in his hands, in
real estate or otherwise, as shall be for the best interest of
all concerned, and may make such other orders for the man-
agement, investment, and disposition of the estate and ef-
fects, as circumstances may require.
RULE 96
Sec. 1. To what guardianship shall extend. - A guardian ap-
pointed shall have the care and custody of the person of his
ward, and the management of his estate, or the manage-
ment of the estate only, as the case may be. The guardian of
the estate of a nonresident shall have the management of all
the estate of the ward within the Philippines, and no court
other than that in which such guardian was appointed shall
have jurisdiction over the guardianship.chanrobles virtu-
alawlibrary
Sec. 2. Guardian to pay debts of ward. - Every guardian must
pay the ward's just debts out of his personal estate and the
income of his real estate, if sufficient; if not, then out of his
real estate upon obtaining an order for the sale or encum-
brance thereof. chan robles virtual law library
Sec. 3. Guardian to settle accounts, collect debts, and appear
in actions for ward. - A guardian must settle all accounts of
his ward, and demand, sue for, and receive all debts due him,
or may, with the approval of the court, compound for the
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same and give discharges to the debtor, on receiving a fair within three (3) months after such discovery, succession, or
and just dividend of the estate and effects; and he shall ap- acquisition.
pear for and represent his ward in all actions and special pro-
ceedings, unless another person be appointed for that pur- Sec. 8. When guardian's accounts presented for settlement.
pose. chan robles virtual law library - Expenses and compensation allowed. Upon the expiration
of a year from the time of his appointment, and as often
Sec. 4. Estate to be managed frugally, and proceeds applied thereafter as may be required, a guardian must present his
to maintenance of ward. - A guardian must manage the es- account to the court for settlement and allowance. In the
tate of his ward frugally and without waste, and apply the settlement of the account, the guardian, other than a parent,
income and profits thereon, so far as may be necessary, to shall be allowed the amount of his reasonable expenses in-
the comfortable and suitable maintenance of the ward and curred in the execution of his trust and also such compensa-
his family, if there be any; and if such income and profits be tion for his services as the court deems just, not exceeding
insufficient for that purpose, the guardian may sell or encum- fifteen per centum of the net income of the ward.
ber the real estate, upon being authorized by order so to do,
and apply so much of the proceeds as may be necessary to RULE 97
such maintenance. chan robles virtual law library
Sec. 1. Petition that competency of ward be adjudged, and
Sec. 5. Guardian may be authorized to join in partition pro-
proceedings thereupon. - A person who has been declared
ceedings after hearing. - The court may authorize the guard-
incompetent for any reason, or his guardian, relative, or
ian to join in an assent to a partition of real or personal estate
friend, may petition the court to have his present compe-
held by the ward jointly or in common with others, but such
tency judicially determined. The petition shall be verified by
authority shall only be granted after hearing, upon such no-
oath, and shall state that such person is then competent.
tice to relatives of the ward as the court may direct, and a
Upon receiving the petition, the court shall fix a time for
careful investigation as to the necessity and propriety of the
hearing the questions raised thereby, and cause reasonable
proposed action.
notice thereof to be given to the guardian of the person, so
declared incompetent, and to the ward. On the trial, the
Sec. 6. Proceedings when person suspected of embezzling or
guardian or relatives of the ward, and, in the discretion of the
concealing property of ward. - Upon complaint of the guard-
court, any other person, may contest the right to the relief
ian or ward, or of any person having actual or prospective
demanded, and witnesses may be called and examined by
interest in the estate of the ward as creditor, heir, or other-
the parties or by the court on its own motion. If it be found
wise, that anyone is suspected of having embezzled, con-
that the person is no longer incompetent, his competency
cealed, or conveyed away any money, goods, or interest, or
shall be adjudged and the guardianship shall cease.
a written instrument, belonging to the ward or his estate, the
court may cite the suspected person to appear for examina-
Sec. 2. When guardian removed or allowed to resign; New
tion touching such money, goods, interest, or instrument,
appointment. - When a guardian becomes insane or other-
and make such orders as will secure the estate against such
wise incapable of discharging his trust or unsuitable therefor,
embezzlement, concealment or conveyance.
or has wasted or mismanaged the estate, of failed for thirty
(30) days after it is due to render an account or make a re-
turn, the court may, upon reasonable notice to the guardian,
Sec. 7. Inventories and accounts of guardians, and appraise-
remove him, and compel him to surrender the estate of the
ment of estates. - A guardian must render to the court an
ward to the person found to be lawfully entitled thereto. A
inventory of the estate of his ward within three (3) months
guardian may resign when it appears proper to allow the
after his appointment, and annually after such appointment
same; and upon his resignation or removal the court may ap-
an inventory and account, the rendition of any of which may
point another in his place.
be compelled upon the application of an interested person.
Such inventories and accounts shall be sworn to by the
Sec. 3. Other termination of guardianship. - The marriage or
guardian. All the estate of the ward described in the first in-
voluntary emancipation of a minor ward terminates the
ventory shall be appraised. In the appraisement the court
guardianship of the person of the ward, and shall enable the
may request the assistance of one or more of the inheritance
minor to administer his property as though he were of age,
tax appraisers. And whenever any property of the ward not
but he cannot borrow money or alienate or encumber real
included in an inventory already rendered is discovered, or
property without the consent of his father or mother, or
succeeded to, or acquired by the ward, like proceedings shall
guardian. He can sue and be sued in court only with the as-
be had for securing an inventory and appraisement thereof
sistance of his father, mother or guardian. The guardian of
any person may be discharged by the court when it appears,
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upon the application of the ward or otherwise, that the
guardianship is no longer necessary.
Sec. 4. Record to be kept by the justice of the peace or mu-
nicipal judge. - When a justice of the peace or municipal
court takes cognizance of the proceedings in pursuance of
the provisions of these rules, the record of the proceedings
shall be kept as in the court of first instance.
Sec. 5. Service of judgment. - Final orders or judgments un-
der this rule shall be served upon the civil registrar of the
municipality or city where the minor or incompetent person
resides or where his property or part thereof is situated
FAMILY CODE, ARTS. 222-227
Art. 222. The courts may appoint a guardian of the child's
property or a guardian ad litem when the best interests of
the child so requires. (317)
Art. 223. The parents or, in their absence or incapacity, the
individual, entity or institution exercising parental authority,
may petition the proper court of the place where the child
resides, for an order providing for disciplinary measures over
the child. The child shall be entitled to the assistance of coun-
sel, either of his choice or appointed by the court, and a sum-
mary hearing shall be conducted wherein the petitioner and
the child shall be heard.
However, if in the same proceeding the court finds the peti-
tioner at fault, irrespective of the merits of the petition, or
when the circumstances so warrant, the court may also order
the deprivation or suspension of parental authority or adopt
such other measures as it may deem just and proper. (318a)
Art. 224. The measures referred to in the preceding article
may include the commitment of the child for not more than
thirty days in entities or institutions engaged in child care or
in children's homes duly accredited by the proper govern-
ment agency.
The parent exercising parental authority shall not interfere
with the care of the child whenever committed but shall pro-
vide for his support. Upon proper petition or at its own in-
stance, the court may terminate the commitment of the child
whenever just and proper. (391a)
Art. 225. The father and the mother shall jointly exercise le-
gal guardianship over the property of the unemancipated
common child without the necessity of a court appointment.
In case of disagreement, the father's decision shall prevail,
unless there is a judicial order to the contrary.
Where the market value of the property or the annual in-
come of the child exceeds P50,000, the parent concerned
shall be required to furnish a bond in such amount as the
court may determine, but not less than ten per centum (10%)
of the value of the property or annual income, to guarantee
the performance of the obligations prescribed for general
guardians.
A verified petition for approval of the bond shall be filed in
the proper court of the place where the child resides, or, if
the child resides in a foreign country, in the proper court of
the place where the property or any part thereof is situated.
The petition shall be docketed as a summary special proceed-
ing in which all incidents and issues regarding the perfor-
mance of the obligations referred to in the second paragraph
of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely supple-
tory except when the child is under substitute parental au-
thority, or the guardian is a stranger, or a parent has remar-
ried, in which case the ordinary rules on guardianship shall
apply. (320a)
Art. 226. The property of the unemancipated child earned or
acquired with his work or industry or by onerous or gratui-
tous title shall belong to the child in ownership and shall be
devoted exclusively to the latter's support and education,
unless the title or transfer provides otherwise.
The right of the parents over the fruits and income of the
child's property shall be limited primarily to the child's sup-
port and secondarily to the collective daily needs of the fam-
ily. (321a, 323a)
Art. 227. If the parents entrust the management or admin-
istration of any of their properties to an unemancipated
child, the net proceeds of such property shall belong to the
owner. The child shall be given a reasonable monthly allow-
ance in an amount not less than that which the owner would
have paid if the administrator were a stranger, unless the
owner, grants the entire proceeds to the child. In any case,
the proceeds thus give in whole or in part shall not be
charged to the child's legitime. (322a)
*For the full text of AMC No. 03-02-05-SC, please refer to the
compilation of laws.
Guardianship – It is a trust relation of the most sacred char-
acter, in which one person, called a “guardian,” acts for an-
other called the “ward” whom the law regards as incapable
of managing his own affairs [Festin].
A guardianship is designed to further the ward’s well-being,
not that of the guardian. It is intended to preserve the ward’s
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property as well as to render any assistance that the ward
may personally require [Festin].
Basis
Where minors are involved, the State acts as parens patriae.
It is the duty of protecting the rights of persons or individuals
who because of age or incapacity are in an unfavorable posi-
tion vis-à-vis other parties. Unable as they are to take care
due care of what concerns them, they have the political com-
munity to look after their welfare [Nery de Leon v. Rosario
Lorenzo, et al.].
Guardian – a person in whom the law has entrusted the cus-
tody and control of the person or estate or both of an infant,
insane or other person incapable of managing his own af-
fairs.
Classification and Kinds of Guardians
(a) According to scope of powers;
(1) General – one whose responsibility is over the person
of the ward.
(2) Limited – one whose responsibility is over the prop-
erty of the ward.
(b) According to constitution;
(1) General guardian – see above definition
(2) Legal guardian – a person who, without need of judi-
cial appointment, is designated as such by provision
of law (e.g. parents over minor children).
(3) Guardian ad litem – any competent person ap-
pointed by the court to prosecute or defend a minor,
insane or person declared to be incompetent, in an
action in court.
Jurisdiction of the Courts
In guardianship proceedings involving incompetents who are
not minors, the RTC where he resides have jurisdiction pur-
suant to the provisions of BP 129 as amended.
In guardianship of minors, it is the Family Courts where the
minor resides.
Venue of guardianship cases
Place of residence of the minor or incompetent person is the
venue for such. However, if the minor or incompetent re-
sides outside the Philippines (non-resident), the petition may
be filed in the RTC of the place where the property of such
minor or incompetent may be situated.
Incompetency of Guardian vis-à-vis Incompetency of Person
under Guardianship
From the fact that a person may be incompetent to act as
executor or administrator, it does not follow that he could be
placed under guardianship [Encarnacion Lopez v. Vda De
Baluyot].
Persons who may petition for appointment of a guardian
under the RoC
1. Any relative; or
2. Friend; or
3. Other person on behalf of the resident incompetent who
has no parents or lawful guardian; or
4. The Director of Health in favor of an insane person who
should be hospitalized or in favor of an isolated leper;
5. Anyone interested in the estate of a non-resident incom-
petent [Rule 93, Sec. 6].
Contents of the Petition for appointment of a guardian un-
der the RoC
1. The jurisdictional facts;
2. The incompetency of the person rendering the appoint-
ment of a guardian necessary or convenient;
3. The probable value and character of his estate;
4. The names, ages, and residences of the relatives of the
incompetent as well as the persons having him under
their care;
5. The names of the persons for whom letters of guardian-
ship are prayed.
Factors considered in appointing a guardian
1. Financial situation
2. Physical condition;
3. Sound judgment;
4. Prudence and trustworthiness;
5. Moral character and conduct;
6. Present and past history of a prospective appointee; and
7. Probability of being able to exercise the powers and duties
of guardian for the full period during which guardianship
is necessary [Francisco v. CA]
When guardian may file petition with leave of court to sell
or encumber estate
Sec. 1, Rule 95 enumerates the grounds:
1. When the income of an estate under guardianship is in-
sufficient to maintain the ward and his family;
2. To maintain and educate the ward when a minor; or
3. When it appears that it is for the benefit of the word that
his real estate or some part thereof be sold, or mortgaged
or otherwise encumbered, and the proceeds thereof put
out at interest, or invested in some productive security,
or in the improvement or security of other real estate of
the ward.
General Powers and Duties of a Guardian
Rule 96 outlines the general powers and duties of a guardian.
1. Have the care and custody of the person of the ward, and
the management of his estate, or the management of the
estate only, as the case may be [Sec. 1].
2. Pay the debts of the ward [Sec. 2];
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3. Settle accounts, collect debts, and appear in actions for Q: May a guardian make a donation of the properties en-
ward [Sec. 4]; trusted to him?
4. Manage the estate of the ward frugally, and apply the A: No. a guardian, just like a trustee, is prohibited under
proceeds to maintenance of the ward [Sec. 4]; Art. 736 of the Civil Code from making a donation of
5. Render verified inventory within three (3) months after the properties entrusted to him [Araneta v. Perez].
his appointment and annually thereafter upon applica-
tion of interested persons [Sec. 7]; Q: Is the provision on emancipation under Rule 97 re-
6. Must present his account to the court for settlement and pealed?
allowance [Sec. 8] A: Yes. Emancipation is governed by RA 6809 in connec-
tion with Arts. 234, 236 of the Family Code.
Grounds for Termination of Guardianship
1. Competency of the ward has been judicially determined; RULE ON GUARDIANSHIP OF MINORS [SC A.M. NO.
or 03-02-05]
2. Guardianship is no longer necessary; or
3. Death of the ward; or
This rule amends Rules 92-97 of the RoC on guardianship of
4. Death of the guardian.
minors. Guardianship of incompetents who are not minors is
still governed by the RoC.
QUESTIONS
BREAKDOWN OF SC A.M. NO. 03-02-05
Q: Does the guardianship court have jurisdiction to settle
the controversy if an issue arises as to who has a bet-
Who shall exercise guardianship over minor without ap-
ter right or title to properties conveyed in the course
pointment [Sec. 1]
of guardianship proceedings?
The father and the mother shall jointly exercise legal guardi-
A: No. The controversy should be threshed out in a sep-
anship over the person and property of their unemancipated
arate ordinary action as [Parco et al., v. CA].
common child without the necessity of a court appointment.
HOWEVER, where the right or title of the ward to the
Persons who may petition for appointment of guardian to a
property is clear and indisputable, the guardianship
resident minor [Sec. 2]
court may issue an order directing its delivery or re-
1. Any relative; or
turn [Paciente v. Dacuycuy].
2. Other person on behalf of the minor; or
3. The minor himself if 14 years of age or over; or
Q: Is notice to a minor who is above 14 years of age juris-
4. The Secretary of Social Welfare and by the Secretary of
dictional?
Health in case of an insane minor who needs to be hospi-
A: Yes. Non-compliance with required notice as provided
talized [Sec. 2, SC AM 03-02-05].
under Sec. 3, Rule 93 of the RoC renders the guardian-
ship proceedings null and void [Nery, et al v. Lorenzo].
Venue [Sec. 3]
Filed in the Family Court of the province or city where the
Q: The rule provides that when there is a necessity to sell
minor actually resides. If he resides in a foreign country, the
or encumber the property of the ward, or it would
petition shall be filed with the Family Court of the province
otherwise be beneficial to him, notice would be given
or city where his property or any part thereof is situated.
to the next of kin of the ward and all the persons in-
terested in the estate. Who is the “next of kin of the
Grounds for appointment [Sec. 4]
ward referred to?”
1. Death, continued absence, or incapacity of his parents;
A: The next of kin referred to does mean the next of kin-
2. Suspension, deprivation or termination of parental au-
dred, but the relatives whose relationships are such as
thority;
to entitle them to shares in the real estate as distrib-
3. Remarriage of his surviving parent, if the latter Is found
utes [Lopez v. Teodoro].
unsuitable to exercise parental authority; or
4. When the best interests of the minor so require.
Q: What is the effect if no notice is given to the next of
kin of the ward?
Factors to consider in appointing a guardian [Sec. 5]
A: The case will be dismissed. The notice to the next of
1. Moral character;
kin required by Sec. 2, Rule 95 is jurisdictional [Singco,
2. Physical, mental and psychological condition;
et al. v. Longa, et al.]
3. Financial status;
4. Relationship of trust with the minor;
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5. Availability to exercise the powers and duties of a guard-
ian for the full period of the guardianship;
6. Lack of conflict of interest with the minor; and
7. Ability to manage the property of the minor.
Order of preference in appointing a guardian, in default of
parents or a court-appointed guardian [Sec. 6]
1. the surviving grandparent and In case several grandpar-
ents survive, the court shall select any of them taking Into
account all relevant considerations;
2. the oldest brother or sister of the minor over twenty-one
years of age, unless unfit or disqualified;
3. the actual custodian of the minor over twenty-one years
of age, unless unfit or disqualified; and
4. any other person, who in the sound discretion of the
court, would serve the best interests of the minor.
Contents of the Petition [Sec. 7]
1. The jurisdictional facts;
2. The name, age, and residence of the prospective ward;
3. The ground rendering the appointment necessary or con-
venient;
4. The death of the parents of the minor or the termination,
deprivation, or suspension of their parental authority;
5. The marriage of the minor’s surviving parent;
6. The names; ages, and residences of relatives within the
fourth (4th) civil degree of minor and of persons having
him in their custody;
7. The probable value, character, and location of the prop-
erty of the minor; and
8. The name, age and residence of the person for whom let-
ters of guardianship are prayed.
Who can file opposition [Sec. 10]
Any interested person may contest the petition by filing a
written opposition based on such grounds as the majority of
the minor or the unsuitability of the person for whom letters
are prayed, and pray that the petition be denied, or that let-
ters of guardianship issue to himself, or to any suitable per-
son named in the opposition.
When and How Guardian of the Property for Non-resident
Minor is appointed [Sec. 12]
When the minor resides outside the Philippines but has prop-
erty in the Philippines, any relative or friend of such minor,
or anyone interested in his property, in expectancy or other-
wise, may petition the Family Court for the appointment of a
guardian over the property.
Notice of hearing of the petition shall be given to the minor
by publication or any other means as the court may deem
proper. The court may dispense with the presence of the
non-resident minor.
If after hearing the court is satisfied that such non-resident is
a minor and a guardian is necessary or convenient, it may ap-
point a guardian over his property.
Conditions set in the filing of a bond [Sec. 14]
1. To make and return to the court, within three months af-
ter the issuance of his letters of guardianship, a true and
complete Inventory of all the property, real and personal,
of his ward which shall come to his possession or
knowledge or to the possession or knowledge of any
other person in his behalf;
2. To faithfully execute the duties of his trust, to manage
and dispose of the property according to this rule for the
best interests of the ward, and to provide for his proper
care, custody and education;
3. To render a true and Just account of all the property of
the ward in his hands, and of all proceeds or interest de-
rived therefrom, and of the management and disposition
of the same, at the time designated by this rule and such
other times as the court directs; and at the expiration of
his trust, to settle his accounts with the court and deliver
and pay over all the property, effects, and monies re-
maining in his hands, or due from him on such settlement,
to the person lawfully entitled thereto; and
4. To perform all orders of the court and such other duties
as may be required by law.
Duties of a Guardian [Sec. 17]
A guardian shall have the care and custody of the person of
his ward and the management of his property, or only the
management of his property. The guardian of the property
of a nonresident minor shall have the management of all his
property within the Philippines.
A guardian shall perform the following duties:
a. To pay the just debts of the ward out of the personal
property and the income of the real property of the ward,
If the same is sufficient; otherwise, out of the real prop-
erty of the ward upon obtaining an order for its sale or
encumbrance;
b. To settle all accounts of his ward, and demand, sue for,
receive all debts due him, or may, with the approval of
the court, compound for the same and give discharges to
the debtor on receiving a fair and just dividend of the
property and effects; and to appear for and represent the
ward in all actions and special proceedings, unless an-
other person is appointed for that purpose;
c. To manage the property of the ward frugally and without
waste, and apply the income and profits thereon, insofar
as may be necessary, to the comfortable and suitable
maintenance of the ward; and if such income and profits
be insufficient for that purpose, to sell or encumber the
real or personal property, upon being authorized by the
court to do so;
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d. To consent to a partition of real or personal property
owned by the ward jointly or in common with others
upon authority granted by the court after hearing, notice
to relatives of the ward, and a careful investigation as to
the necessity and propriety of the proposed action;
e. To submit to the court a verified inventory of the property
of his ward within three months after his appointment,
and annually thereafter, the rendition of which may be
required upon the application of an interested person;
f. To report to the court any property of the ward not in-
cluded in the inventory which is discovered, or succeeded
to, or acquired by the ward within three months after
such discovery, succession, or acquisition; and
g. To render to the court for its approval an accounting of
the property one year from his appointment, and every
year thereafter or as often as may be required.
Grounds for Removal or Resignation of Guardian [Sec. 24]
1. When a guardian becomes insane or otherwise incapable
of discharging his trust or is
2. found thereafter to be unsuitable, or
3. has wasted or mismanaged the property of the ward, or
4. has failed to render an account or make a return for thirty
days after it is due,
The court may allow the guardian to resign for justifiable
causes.
Upon the removal or resignation of the guardian, the court
shall appoint a new one.
Grounds for Termination [Sec. 25]
1. The ward has come of age; or
2. Death of the ward; or
3. Death of the guardian.
Note: Take note of the differences in the persons who may
petition for appointment, contents of the petition and the
grounds for termination under the administrative matter and
the Rules of Court [Rule 92-97].
QUESTIONS
Q: What is the difference between the administrative
matter and the rules on guardianship in the RoC.
A: The former covers the person and property or both of
the minor ward. The latter now only deals with inca-
pacitated persons who are 18 years old and above. If
the person is an incapacitated minor, the administra-
tive matter will apply.
Q: What is the sole concern of the court of guardianship?
A: It is solely concerned with the ward’s custody and
proper administration of his properties. Conflicts re-
garding ownership or title to property in the hands of
a guardian, in his capacity as such, should be litigated
in a separate proceeding.
Q: Can the court order the delivery of property of the
ward found to be embezzled or concealed?
A: Generally, the guardianship court exercising special
and limited jurisdiction cannot actually order the de-
livery of the property of the ward found to be embez-
zled or concealed. In categorical language by the
Court, only in extreme cases, where property clearly
belongs to the ward or where his title thereto has
been judicially decided, may the court direct its deliv-
ery to the guardian.
Q: Can a hearing on guardianship be closed to the public?
A: Yes. Sec. 11 provides that the court may do so in its
discretion.
Q: When are the parents of the minor required to post
bond?
A: Only when the market value of the property or the an-
nual Income of the child exceeds P50,000.00, the par-
ent concerned shall furnish a bond In such amount as
the court may determine, but in no case less than ten
per centurn of the value of such property or annual in-
come, to guarantee the performance of the obliga-
tions prescribed for general guardians [Sec. 16]
Q: Can the guardian sell the property of the ward?
A: Yes. When the income of a property under guardian-
ship is insufficient to maintain and educate the ward,
or when it is for his benefit that his personal or real
property or any part thereof be sold, mortgaged or
otherwise encumbered, and the proceeds invested in
safe and productive security, or in the improvement
or security of other real property, the guardian may
file a verified petition setting forth such facts, and
praying that an order issue authorizing the sale or en-
cumbrance of the property [Sec. 19].
Q: May the court order an investment of proceeds and
direct management of property?
A: Yes. Under Sec. 23, the court may authorize and re-
quire the guardian to invest the proceeds of sales or
encumbrances, and any other money of his ward in his
hands, in real or personal property, for the best inter-
ests of the ward, and may make such other orders for
the management, investment, and disposition of the
property and effects, as circumstances may warrant.
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Q: What is the requirement before a motion for re-
moval or resignation be granted?
A: Under Sec. 24, no motion for removal or resignation
shall be granted unless the guardian has submitted
the proper accounting of the property of the ward and
the court has approved the same.
JURISPRUDENCE
VANCIL V. BELMES
SUMMARY: Bonifacia (the grandmother) and Helen (the
mother) are fighting over who should have guardianship over
the kids of Reeder.
DOCTRINE: The surviving natural parent of a minor is pre-
ferred as the minor’s guardian. If the parent is dead, absent,
or unsuitable, substitute parental authority will be exercised
by the surviving grandparent.
PARCO V. CA
SUMMARY: Guardianship proceedings were originally filed
in Branch I of CFI of Quezon. Due to clogged dockets, how-
ever, Judge Kayanan of Branch IV took cognizance of the
case. It ordered reconveyance of properties claimed by the
guardian to be transferred to Parco, et al., under a loan
agreement. Parco, et al., on the other hand, claimed that the
sale was absolute. Meanwhile, Branch I issued orders assert-
ing jurisdiction over the case. Judge Kayanan ordered trans-
mittal of the records of the case to Branch I. However, he still
issued orders concerning the case. Parco, et al., assailed the
jurisdiction of Branch IV (1) over the case, and (2) over the
issue of ownership of the properties. Judge Kayanan and the
CA dismissed the challenge. The SC reversed, ruling that, un-
der the peculiar circumstances of the case, (1) Branch I had
jurisdiction, and (2) in any case, Branch IV, as a guardianship
court, had no authority to determine the ownership of the
properties and order their reconveyance.
DOCTRINE: The jurisdiction of the court in guardianship pro-
ceedings, ordinarily, is to cite persons suspected of having
embezzled, concealed or conveyed the property belonging
to the ward for the purpose of obtaining information which
may be used in an action later to be instituted by the guard-
ian to protect the right of the ward. Only in extreme cases,
where property clearly belongs to the ward or where his title
thereto has been already judicially decided, may the court
direct its delivery to the guardian.
PABLO-GUALBERTO V. GUALBERTO V
SUMMARY: Crisanto Gualberto V filed before the RTC a pe-
tition for declaration of nullity of his marriage to Joycelyn
with an ancillary prayer for custody pendente lite of their al-
most 4 year old son, Rafaello, whom her wife took away with
her from their conjugal home and his school when she left
him. The RTC granted the ancillary prayer for custody pen-
dente lite, since the wife failed to appear despite notice. A
house helper of the spouses testified that the mother does
not care for the child as she very often goes out of the house
and even saw her slapping the child. Another witness testi-
fied that after surveillance he found out that the wife is hav-
ing lesbian relations. Subsequently, the judge issued an Or-
der reversing her previous Order, and this time awarded the
custody of the child to the mother. RTC found that the reason
stated by Crisanto were not compelling to deny Joycelyn of
the custody. The Supreme Court ruled in favor of Joycelyn.
(custody awarded to the mother)
DOCTRINE: The BEST INTEREST of the Child is a Primary Con-
sideration. The principle of “best interest of the child” per-
vades Philippine cases involving adoption, guardianship, sup-
port, personal status, minors in conflict with the law, and
child custody. In these cases, it has long been recognized
that in choosing the parent to whom custody is given, the
welfare of the minors should always be the paramount con-
sideration. Courts are mandated to take into account all rel-
evant circumstances that would have a bearing on the chil-
dren’s well-being and development. Aside from the material
resources and the moral and social situations of each parent,
other factors may also be considered to ascertain which one
has the capability to attend to the physical, educational, so-
cial and moral welfare of the children. Among these factors
are the previous care and devotion shown by each of the par-
ents; their religious background, moral uprightness, home
environment and time availability; as well as the children’s
emotional and educational needs.
The TENDER-AGE Presumption. The so-called “tender-age
presumption” under Article 213 of the Family Code may be
overcome only by compelling evidence of the mother’s un-
fitness. The mother has been declared unsuitable to have
custody of her children in one or more of the following in-
stances: neglect, abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment of the
child, insanity or affliction with a communicable disease.
But sexual preference or moral laxity alone does not prove
parental neglect or incompetence. Not even the fact that a
mother is a prostitute or has been unfaithful to her husband
would render her unfit to have custody of her minor child. To
deprive the wife of custody, the husband must clearly estab-
lish that her moral lapses have had an adverse effect on the
welfare of the child or have distracted the offending spouse
from exercising proper parental care.
CAÑIZA V. COURT OF APPEALS
SUMMARY: Carmen Cañiza was declared incompetent by
judgment of the RTC of Quezon City and Amparo Evangelista,
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her niece, was appointed the legal guardian of her person
and estate. Cañiza was the owner of a house and lot and her
guardian commenced a suit in the MeTC of QC to eject the
spouses Pedro and Leonora Estrada, who were allowed to
stay there out of kindness. It was alleged in the complaint
that several demands were made for the spouses to vacate
the premises because Cañiza is in urgent need of the house
so funds could be raised to meet her expenses for support,
maintenance, and medical treatment. The MeTC ordered the
spouses Estrada to vacate the house. The RTC reversed the
decision and held that the action by which possession should
have been resolves was accion publiciana that is cognizable
in the first instance by the RTC. The CA affirmed. Cañiza died
during the pendency of the appeal and questions were raised
as to whether Evangelista, as Cañiza’s legal guardian had au-
thority to bring the action and whether Evangelista may con-
tinue to represent Cañiza after the latter’s death. The SC re-
versed and said jurisdiction was properly laid with the MeTC.
DOCTRINE: The general rule is that the relationship of guard-
ian and ward is necessarily terminated by the death of either
the guardian or the ward. However, in this case, the legal
guardian is also one of the surviving heirs and they were sub-
stituted as parties in the appeal at bar in place of the de-
ceased.
TRUSTEES
RULE 98
Sec. 1. Where trustee appointed. - A trustee necessary to
carry into effect the provisions of a will or written instrument
shall be appointed by the Court of First Instance in which the
will was allowed if it be a will allowed in the Philippines, oth-
erwise by the Court of First Instance of the province in which
the property, or some portion thereof, affected by the trust
is situated.
Sec. 2. Appointment and powers of trustee under will; Exec-
utor of former trustee need not administer trust. - If a testa-
tor has omitted in his will to appoint a trustee in the Philip-
pines, and if such appointment is necessary to carry into ef-
fect the provisions of the will, the proper Court of First In-
stance may, after notice to all persons interested, appoint a
trustee who shall have the same rights, powers, and duties,
and in whom the estate shall vest, as if he had been ap-
pointed by the testator. No person succeeding to a trust as
executor or administrator of a former trustee shall be re-
quired to accept such trust.
Sec. 3. Appointment and powers of new trustee under writ-
ten instrument. - When a trustee under a written instrument
declines, resigns, dies, or is removed before the objects of
the trust are accomplished, and no adequate provision is
made in such instrument for supplying the vacancy, the
proper Court of First Instance may, after due notice to all per-
sons interested, appoint a new trustee to act alone or jointly
with the others, as the case may be. Such new trustee shall
have and exercise the same powers, rights, and duties as if
he had been originally appointed, and the trust estate shall
vest in him in like manner as it had vested or would have
vested, in the trustee in whose place he is substituted; and
the court may order such conveyance to be made by the for-
mer trustee or his representatives, or by the other remaining
trustees, as may be necessary or proper to vest the trust es-
tate in the new trustee, either alone or jointly with the oth-
ers.
Sec. 4. Proceedings where trustee appointed abroad. -
When land in the Philippines is held in trust for persons resi-
dent here by a trustee who derives his authority from with-
out the Philippines, such trustee shall, on petition filed in the
Court of First Instance of province where the land is situated,
and after due notice to all persons interested, be ordered to
apply to the court for appointment as trustee; and upon his
neglect or refusal to comply with such order, the court shall
declare such trust vacant, and shall appoint a new trustee in
whom the trust estate shall vest in like manner as if he had
been originally appointed by such court.
Sec. 5. Trustee must file bond. Before entering on the duties
of his trust, a trustee shall file with the clerk of the court hav-
ing jurisdiction of the trust a bond in the amount fixed by the
judge of said court, payable to the Government of the Philip-
pines and sufficient and available for the protection of any
party in interest, and a trustee who neglects to file such bond
shall be considered to have declined or resigned the trust;
but the court may until further order exempt a trustee under
a will from giving a bond when the testator has directed or
requested such exemption, and may so exempt any trustee
when all persons beneficially interested in the trust, being of
full age, request the exemption. Such exemption may be can-
celled by the court at any time and the trustee required to
forthwith file a bond.
Sec. 6. Conditions included in bond. - The following condi-
tions shall be deemed to be a part of the bond whether writ-
ten therein or not:
(a) That the trustee will make and return to the court, at such
time as it may order, a true inventory of all the real and per-
sonal estate belonging to him as trustee, which at the time
of the making of such inventory shall have come to his pos-
session or knowledge;
(b) That he will manage and dispose of all such estate, and
faithfully discharge his trust in relation thereto, according to
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law and the will of the testator or the provisions of the in-
strument or order under which he is appointed;
(c) That he will render upon oath at least once a year until his
trust is fulfilled, unless he is excused therefrom in any year
by the court, a true account of the property in his hands and
of the management and disposition thereof, and will render
such other accounts as the court may order;
(d) That at the expiration of his trust he will settle his ac-
counts in court and pay over and deliver all the estate re-
maining in his hands, or due from him on such settlement, to
the person or persons entitled thereto.
But when the trustee is appointed as a successor to a prior
trustee, the court may dispense with the making and return
of an inventory, if one has already been filed, and in such
case the condition of the bond shall be deemed to be altered
accordingly.
Sec. 7. Appraisal; Compensation of trustee. - When an in-
ventory is required to be returned by a trustee, the estate
and effects belonging to the trust shall be appraised and the
court may order one or more inheritance tax appraisers to
assist in the appraisement. The compensation of the trustee
shall be fixed by the court, if it be not determined in the in-
strument creating the trust.
Sec. 8. Removal or resignation of trustee. - The proper Court
of First Instance may, upon petition of the parties beneficially
interested and after due notice to the trustee and hearing,
remove a trustee if such removal appears essential in the in-
terests of the petitioners. The court may also, after due no-
tice to all persons interested, remove a trustee who is insane
or otherwise incapable of discharging his trust or evidently
unsuitable therefor. A trustee, whether appointed by the
court or under a written instrument, may resign his trust if it
appears to the court proper to allow such resignation.
Sec. 9. Proceedings for sale or encumbrance of trust estate.
- When the sale or encumbrance of any real or personal es-
tate held in trust is necessary or expedient, the court having
jurisdiction of the trust may, on petition and after due notice
and hearing, order such sale or encumbrance to be made,
and the reinvestment and application of the proceeds
thereof in such manner as will best effect the objects of the
trust. The petition, notice, hearing, order of sale or encum-
brance, and record of proceedings, shall conform as nearly
as may be to the provisions concerning the sale or encum-
brance by guardians of the property of minors or other
wards.
CIVIL CODE, ARTS. 1440, 1443-1446
Art. 1440. A person who establishes a trust is called the trus-
tor; one in whom confidence is reposed as regards property
for the benefit of another person is known as the trustee;
and the person for whose benefit the trust has been created
is referred to as the beneficiary.
Art. 1443. No express trusts concerning an immovable or any
interest therein may be proved by parol evidence.
Art. 1444. No particular words are required for the creation
of an express trust, it being sufficient that a trust is clearly
intended.
Art. 1445. No trust shall fail because the trustee appointed
declines the designation, unless the contrary should appear
in the instrument constituting the trust.
Art. 1446. Acceptance by the beneficiary is necessary. Nev-
ertheless, if the trust imposes no onerous condition upon the
beneficiary, his acceptance shall be presumed, if there is no
proof to the contrary.
Trust – a trust is a confidence reposed in one person, called
the trustee, for the benefit of another, called the cestui que
trust, with respect to property held by the former for the
benefit of the latter. The person in whom confidence is re-
posed as regards property for the benefit of another is
known as the trustee.
Express Trust vis-à-vis Implied Trust [O’ Lao v. Co Cho Chit]
Express Trust Implied Trust
One created by the direct One which, without being
and positive acts of the par- express, is deducible from
ties, by some writing, deed, the nature of the transac-
or will, or by the words evi- tion as a matter of intent,
dencing an intention to cre- or which are super induced
ate a trust. on the transaction by oper-
ation of law as matters of
equity, independent of the
particular intention of the
parties.
QUESTIONS
Q: Does Rule 98 apply to implied trust?
A: No. It only applies to express trust.
Q: When is a trustee necessary?
A: A trustee is necessary:
1. To carry into effect a will where the testator omit-
ted appointing a trustee in the Philippines;
2. To carry into effect other written instruments
where the trustee declines, resigns, dies, or is re-
moved before the accomplishment of trust.
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Q: May a trustee buy property held in trust by him?
A: No, he cannot do so whether by purchase, even in
public or judicial action, either in person or through
the mediation of another. A trustee is not allowed to
take advantage for himself of trust property under the
pretense of serving the beneficiary.
Q: Can a trustee acquire property by prescription?
A: No. The general rule is that an action to compel a trus-
tee to convey property registered in his name in trust
for the benefit of the cestui que trust does not pre-
scribe. The trustee’s possession is not adverse and
therefore cannot ripen into a title by prescription.
However, prescription may arise where there is ad-
verse possession of the property. To constitute ad-
verse possession, the following must concur:
1. That the trustee has performed an unequivocal
acts of repudiation amounting to ouster of the
cestui que trust;
2. That such positive acts of repudiation have been
known to the cestui que trust; and
3. That the evidence thereon should be clear and
conclusive [Ceniza v. CA].
JURISPRUDENCE
SOCIAL SECURITY SYSTEM V. COMMISSION ON
AUDIT
SUMMARY: A Collective Negotiation Agreement was en-
tered into by the SS Commission, in behalf of SSS, and the
negotiating agent for SSS employees. The CNA provided for
a signing bonus of P5,000 to each official and employee of
SSS. The DBM and COA disallowed the bonus for being illegal.
The SC agreed. It first said that under the SC charter and rel-
evant laws, the SSC has no power to fix compensation. Fur-
thermore, the SC held that the funds of SSS are held in trust
so the rules on compensation of trustees apply.
DOCTRINE: The funds being administered by SSS is a trust
fund for the welfare and benefit of workers and employees
in the private sector
Funds contributed to the SSS by compulsion of law as funds
belonging to the members which were merely held in trust
by the government, and resolutely imposed the duty upon
the trustees to desist from any and all acts which would di-
minish the property rights of owners and beneficiaries of the
trust fund (United Christian Missionary v. SSC)
Thus, it would be very reasonable to construe the authority
of SSC to provide for compensation of SSS personnel in ac-
cordance with the established rules governing remuneration
of trustees:
The modern rule is to give the trustee a reasonable remuner-
ation for his skill and industry. In deciding what is a reasona-
ble compensation for a trustee the court will consider the
amount of income and capital received and disbursed, the
pay customarily given to agents or servants for similar work,
the success or failure of the work of the trustee, any unusual
skill which the trustee had and used, the amount of risk and
responsibility, the time consumed, the character of the work
done (whether routine or of unusual difficulty) and any other
factors which prove the worth of the trustee’s services to the
cestuis x x x x. The court has power to make extraordinary
compensation allowances, but will not do so unless the trus-
tee can prove that he has performed work beyond the ordi-
nary duties of his office and has engaged in especially ardu-
ous work
ADOPTION
Rule 99 on Adoption and Rule 100 on Rescission and Revoca-
tion of Adoption had been repealed by the new Rules on
Adoption effective August 22, 2002. Look at RA 8552 “Do-
mestic Adoption Act of 1995” and RA 8043 “Inter-Country
Adoption Act of 1995.”
FAMILY CODE ARTS 183 -193
Art. 183. A person of age and in possession of full civil capac-
ity and legal rights may adopt, provided he is in a position to
support and care for his children, legitimate or illegitimate,
in keeping with the means of the family.
Only minors may be adopted, except in the cases when the
adoption of a person of majority age is allowed in this Title.
In addition, the adopter must be at least sixteen years older
than the person to be adopted, unless the adopter is the par-
ent by nature of the adopted, or is the spouse of the legiti-
mate parent of the person to be adopted. (27a, E. O. 91 and
PD 603)
Art. 184. The following persons may not adopt:
(1) The guardian with respect to the ward prior to the ap-
proval of the final accounts rendered upon the termination
of their guardianship relation;
(2) Any person who has been convicted of a crime involving
moral turpitude;
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(3) An alien, except:
(a) A former Filipino citizen who seeks to adopt a relative by
consanguinity;
(b) One who seeks to adopt the legitimate child of his or her
Filipino spouse; or
(c) One who is married to a Filipino citizen and seeks to adopt
jointly with his or her spouse a relative by consanguinity of
the latter.
Aliens not included in the foregoing exceptions may adopt
Filipino children in accordance with the rules on inter-coun-
try adoptions as may be provided by law. (28a, E. O. 91 and
PD 603)
Art. 185. Husband and wife must jointly adopt, except in the
following cases:
(1) When one spouse seeks to adopt his own illegitimate
child; or
(2) When one spouse seeks to adopt the legitimate child of
the other. (29a, E. O. 91 and PD 603)
Art. 186. In case husband and wife jointly adopt or one
spouse adopts the legitimate child of the other, joint paren-
tal authority shall be exercised by the spouses in accordance
with this Code. (29a, E. O. and PD 603)
Art. 187. The following may not be adopted:
(1) A person of legal age, unless he or she is a child by nature
of the adopter or his or her spouse, or, prior to the adoption,
said person has been consistently considered and treated by
the adopter as his or her own child during minority.
(2) An alien with whose government the Republic of the Phil-
ippines has no diplomatic relations; and
(3) A person who has already been adopted unless such
adoption has been previously revoked or rescinded. (30a, E.
O. 91 and PD 603)
Art. 188. The written consent of the following to the adop-
tion shall be necessary:
(1) The person to be adopted, if ten years of age or over,
(2) The parents by nature of the child, the legal guardian, or
the proper government instrumentality;
(3) The legitimate and adopted children, ten years of age or
over, of the adopting parent or parents;
(4) The illegitimate children, ten years of age or over, of the
adopting parent, if living with said parent and the latter's
spouse, if any; and
(5) The spouse, if any, of the person adopting or to be
adopted. (31a, E. O. 91 and PD 603)
Art. 189. Adoption shall have the following effects:
(1) For civil purposes, the adopted shall be deemed to be a
legitimate child of the adopters and both shall acquire the
reciprocal rights and obligations arising from the relationship
of parent and child, including the right of the adopted to use
the surname of the adopters;
(2) The parental authority of the parents by nature over the
adopted shall terminate and be vested in the adopters, ex-
cept that if the adopter is the spouse of the parent by nature
of the adopted, parental authority over the adopted shall be
exercised jointly by both spouses; and
(3) The adopted shall remain an intestate heir of his parents
and other blood relatives. (39(1)a, (3)a, PD 603)
Art. 190. Legal or intestate succession to the estate of the
adopted shall be governed by the following rules:
(1) Legitimate and illegitimate children and descendants and
the surviving spouse of the adopted shall inherit from the
adopted, in accordance with the ordinary rules of legal or in-
testate succession;
(2) When the parents, legitimate or illegitimate, or the legit-
imate ascendants of the adopted concur with the adopter,
they shall divide the entire estate, one-half to be inherited
by the parents or ascendants and the other half, by the
adopters;
(3) When the surviving spouse or the illegitimate children of
the adopted concur with the adopters, they shall divide the
entire estate in equal shares, one-half to be inherited by the
spouse or the illegitimate children of the adopted and the
other half, by the adopters.
(4) When the adopters concur with the illegitimate children
and the surviving spouse of the adopted, they shall divide the
entire estate in equal shares, one-third to be inherited by the
illegitimate children, one-third by the surviving spouse, and
one-third by the adopters;
(5) When only the adopters survive, they shall inherit the en-
tire estate; and
(6) When only collateral blood relatives of the adopted sur-
vive, then the ordinary rules of legal or intestate succession
shall apply. (39(4)a, PD 603)
Art. 191. If the adopted is a minor or otherwise incapaci-
tated, the adoption may be judicially rescinded upon petition
of any person authorized by the court or proper government
instrumental acting on his behalf, on the same grounds pre-
scribed for loss or suspension of parental authority. If the
adopted is at least eighteen years of age, he may petition for
judicial rescission of the adoption on the same grounds pre-
scribed for disinheriting an ascendant. (40a, PD 603)
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Art. 192. The adopters may petition the court for the judicial privileges coming to it as a result of the adoption [Republic v.
rescission of the adoption in any of the following cases: CA].

(1) If the adopted has committed any act constituting ground Venue of Adoption Proceedings vis-à-vis Guardianship Pro-
for disinheriting a descendant; or ceedings
In domestic adoption proceedings, venue is laid in the resi-
(2) When the adopted has abandoned the home of the dence of the petitioner or the adopter whereas in guardian-
adopters during minority for at least one year, or, by some ship, it is filed before the RTC of the place where the minor
other acts, has definitely repudiated the adoption. (41a, PD or incompetent resides.
603)
Domestic Adoption Inter-Country Adoption
Art. 193. If the adopted minor has not reached the age of Jurisdiction
majority at the time of the judicial rescission of the adoption, Under the family court Under the family court hav-
the court in the same proceeding shall reinstate the parental where the adopter resides ing jurisdiction over the
authority of the parents by nature, unless the latter are dis- place where the child re-
qualified or incapacitated, in which case the court shall ap- sides or may be found.
point a guardian over the person and property of the minor.
If the adopted person is physically or mentally handicapped, It may be filed directly with
the court shall appoint in the same proceeding a guardian the Inter-Country Adoption
over his person or property or both. Board.
How application made
Judicial rescission of the adoption shall extinguish all recipro- Made only by filing a peti- May be made through the
cal rights and obligations between the adopters and the tion with the family court in agency located in the for-
adopted arising from the relationship of parent and child. the Philippines eign country.
The adopted shall likewise lose the right to use the surnames Trial Custody
of the adopters and shall resume his surname prior to the Shall be made in the Philip- Mandatory in the country
adoption. pines for six (6) months of the adopter
Publication
The court shall accordingly order the amendment of the rec- Necessary No requirement for publi-
ords in the proper registries. (42a, PD 603) cation.

*For the full texts of AM No. 02-6-02-SC, 03-04-04-SC, RA
852, RA 8043, and RA 9523, please refer to the compilation
of laws.
Adoption
Adoption is a juridical act, a proceeding in rem which creates
between two persons a relationship similar to that which re-
sults from legitimate paternity and filiation. Only an adop-
tion made through the court, or in pursuance with the pro-
cedure laid down under Rule 99 of the Rules of Court is valid
in this jurisdiction. It is not of natural law at all, but is wholly
and entirely artificial. To establish the relation, the statutory
requirements must be strictly carried out, otherwise, the
adoption is an absolute nullity. The fact of adoption is never
presumed, but must be affirmatively proved by the person
claiming its existence [Lazatin v. Campos]
Liberal Construction of Adoption Statutes
It is a settled rule that adoption statutes, as well as matters
of procedure leading up to adoption, should be liberally con-
strued to carry out the beneficent purposes of the adoption
institution and to protect the adopted child in the rights and
Other prayers allowed
Prayers for change of No other prayers are al-
name, rectification of simu- lowed.
lated birth or declaration
that the child is a foundling,
abandoned dependent or
neglected child are allowed
to accompany the petition.
Inter-Country Adoption – a socio-legal process of adopting a
Filipino child by a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the supervised
trial custody is undertaken, and the decree of adoption is
outside the Philippines.
Inter-country Adoption Board – it is a body created to act as
the central authority in matters relating to inter-country
adoption. It acts as the policy-making body for the purposes
of carrying out provisions of the Inter-Country Adoption Act,
in consultation and coordination with the DSWD, the differ-
ent child-care and placement agencies, adoptive agencies, as
well as NGOs engaged in child-care and placement activities.

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QUESTIONS cause there is no law or case allowing it. SC: TC decision mod-
ified, Stephanie is allowed to use her mother’s surname as a
Q: Which court has jurisdiction and venue over domestic middle name.
adoption cases?
A: According to Sec. 6 of the Rules of Adoption, the peti- DOCTRINE: An adopted child is entitled to all the rights pro-
tion for the adoption shall be filed with the family vided by law to a legitimate child without discrimination of
court of the province or city where the prospective par- any kind, including the right to bear the surname of her fa-
ents reside. ther and her mother.

Q: What about inter-country adoption cases? An adopted child is permitted to use the surname of the nat-
A: According to Sec. 28 of the Rules of Adoption, a veri- ural mother as a middle name. (In this case there is only 1
fied petition to adopt a Filipino child may be filed by a adopter- the father)
foreign national or Filipino citizen permanently resid-
ing abroad with the family court having jurisdiction LAHOM V. SIBULO
over the place where the child resides or may be found. SUMMARY: Spouses Lahom legally adopted Jose Sibulo.
It may be filed directly with the Inter-Country Adoption Sibulo refused to change his surname and acted callously and
Board. indifferently towards his adopters. Mrs. Lahom filed a peti-
tion to rescind the adoption. In CC and FC, the adopter could
JURISPRUDENCE rescind the adoption. But before Mrs. Lahom filed the peti-
tion, RA 8552 came into effect that gave the adopted the sole
right to rescind. RTC and SC denied Mrs. Lahom’s petition.
LANDINGIN V. REPUBLIC
SUMMARY: Landingin filed a petition to adopt the minor
DOCTRINE: While adoption has often been referred to in the
children of her brother. After the death of Landingin’s
context of a "right," the privilege to adopt is itself not natu-
brother, the mother of the children went to Italy to work.
rally innate or fundamental but rather a right merely created
Eventually, the mother had a family with 2 children in Italy.
by statute. It is a privilege that is governed by the state's de-
The children were left under the custody of their paternal
termination on what it may deem to be for the best interest
grandmother and were financially supported by their rela-
and welfare of the child.26 Matters relating to adoption, in-
tives abroad. The grandmother died, hence, Landingin
cluding the withdrawal of the right of an adopter to nullify
sought to adopt the children. During the adoption proceed-
the adoption decree, are subject to regulation by the State.
ings, Landingin failed to present evidence showing that the
Concomitantly, aright of action given by statute may be
biological mother gave her consent to the adoption. SC ruled
taken away at anytime before it has been exercised.
that consent of the biological parents is indispensable for the
validity of the decree of adoption.
IN THE MATTER OF ADOPTION OF MINOR EDWIN
DOCTRINE: The written consent of the biological parents is VILLA Y MENDOZA
indispensable for the validity of a decree of adoption. SUMMARY: Petitioner spouses Santos filed a petition to
adopt the brother of one of the spouses. The JDRC disal-
As can be adduced from RA 8552, if the biological mother of lowed this, saying that it would create an incongruous situa-
the minors had indeed abandoned them, she should, thus tion of the brother also being the son of one of the petitioner
have adduced the written consent of their legal guardian. spouses, creating a dual relationship status. The SC said that
there is no law prohibiting this type of adoption, hence it
should be allowed, and also that the dual relationship is not
IN THE MATTER OF THE ADOPTION OF STEPHA-
illegal, since one is by nature and the other by law.
NIE GARCIA
SUMMARY: Catindig petitioned to adopt his minor illegiti-
DOCTRINE: There is no provision of law which prohibits the
mate daughter Stephanie because he is now a widower and
adoption between those who are already blood relatives,
qualified to be her adoptive parent. Catindig also petitioned
hence it should not be prevented.
that Stephanie’s middle name be changed to the surname of
her mother, and her surname be changed to Catindig’s sur-
name. TC: Petition for adoption granted, and Stephanie will
now carry adopter Catindig’s surname, but she cannot use
the surname of the biological mother as middle name be-

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DISTINCTIONS BETWEEN RA 8552 AND RA 8043

Republic Act No. 8552 Republic Act No. 8043

Adoption Laws
Short Title Domestic Adoption Act of 1998 Inter-Country Adoption Act of 1995

What Kind Judicial Adoption Extrajudicial Adoption

Promulgation February 25, 1998 June 7, 1995

What it governs R.A. 8552 amended Articles 183 – 193 of the Family Code and is the gov-
erning law for Filipino citizens adopting other Filipinos, whether relatives
or strangers, with some exceptions. Rescission of adoption is no longer
allowed under R.A. 8552
Definition of Child Child is a person below 18 years of age
Who may adopt 1) Any Filipino citizen;
2) Any Alien possessing the same qualifications as above stated for Filipino
nationals;
3) The guardian with respect to the ward.
Qualifications Filipino Citizen
1) Legal age, in possession of full civil capacity and legal rights;
2) of good moral character, has not been convicted of any crime involving
moral turpitude;
3) emotionally and psychologically capable of caring for children;
4) at least 16 years older than the adoptee(waived when the adopter is
the parent of the adoptee, or is the spouse of the adoptee’s parent)
Alien
1) Same as the qualifications of Filipino Citizens;
2) His/Her country has diplomatic relations with the Republic of the Phil-
ippines;
3) the he/she has been living in the Philippines for at least 3 continuous
years prior to the filing of the application for adoption and maintains
such residence until the adoption decree is entered;
4) He/She has been certified b his/her diplomatic or consular office or any
appropriate government agency that he/she has the legal capacity to
adopt on his/her country; and
5) His/Her government allows the adoptee to enter his/her country as
his/her adopted son/daughter.
R.A. 8043 governs the adoption of Filipinos by foreigners and is implemented
by the Inter-Country Adoption Board.
Child means a person below 15 years of age unless sooner emancipated by
law
An Alien or a Filipino Citizen permanently residing abroad may file an applica-
tion for inter-country adoption of a Filipino Child.
1) is at least 27 years of age and at least 16 years older than the child to be
adopted at the time of application unless the adopter is the parent by na-
ture of the child or the spouse of such parent;
2) if married, his/her spouse must jointly file for the adoption;
3) has the capacity to act and assume all rights and responsibilities of parental
authority under his national laws, and has undergone the appropriate
counseling from an accredited counselor in his/her country;
4) has not been convicted of a crime involving moral turpitude;
5) is eligible to adopt under his/her national law;
6) is in a position to provide for the proper care and support and to give the
necessary moral values and example to all his children, including the child
to be adopted;
7) agrees to uphold the basic rights of the child as embodied under Philippine
laws, the U.N. Convention on the Rights of the Child, and to abide by the
rules and regulations issued to implement the provisions of this Act;
8) comes from a country with whom the Philippines has diplomatic relations
and whose government maintains a similarly authorized and accredited
agency and that adoption is allowed under his/her national laws; and
9) Possesses all the qualifications and none of the disqualifications provided
herein and in other applicable Philippine laws. (Section 9)

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Republic Act No. 8552 Republic Act No. 8043

Adoption Laws
* Residency and certification of the alien’s qualification to adopt in his/her
country may be waived for the following:
i) a former Filipino Citizen who seeks to adopt a relative within the 4 th
degree of consanguinity or affinity; or
ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino
spouse; or
iii) one who is married to a Filipino citizen and seeks to adopt jointly with
his/her spouse a relative within the 4th degree of consanguinity or af-
finity of the Filipino spouse;

* Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other;
or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter:
Provided, However, that the other spouse has signified his/her con-
sent thereto; or
(iii) if the spouses are legally separated from each other.

* In case husband and wife jointly adopt or one spouse adopts the illegiti-
mate son/daughter of the other, joint parental authority shall be exercised
by the spouses.

Guardian
Only after the termination of the guardianship and clearance of his/her
financial accountabilities (Section 7)
Who may be adopted 1) Any person below 18 years of age who has been administratively or ju-
dicially declared available for adoption;
2) The legitimate son/daughter of one spouse by the other spouse;
3) An illegitimate son/daughter by a qualified adopter to improve his/her
status to that of legitimacy;
4) A person of legal age if, prior to the adoption, said person has been
consistently considered and treated by the adopter(s) as his/her own
child since minority;
5) A child whose adoption has been previously rescinded; or
6) A child whose biological or adoptive parent(s) has died: Provided, That
no proceedings shall be initiated within 6 months from the time of
death of said parent(s). (Section 8)
Only a legally free child may be the subject of inter-country adoption In order
that such child may be considered for placement, the following documents
must be submitted to the Board:
(a) Child study;
(b) Birth certificate/foundling certificate;
(c) Deed of voluntary commitment/decree of abandonment/death certificate
of parents;
(d) Medical evaluation /history;
(e) Psychological evaluation, as necessary; and
(f) Recent photo of the child.(Section 8)
*Legally-free child means a child who has been voluntarily or involuntarily
committed to the Department, in accordance with the Child and Youth Welfare
Code.

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Republic Act No. 8552 Republic Act No. 8043

Adoption Laws
Where to file applica- Family Court of the place where the adopter resides RTC having jurisdiction over the child, or with the Inter-Country Adoption
tion Board, through an intermediate agency, whether governmental or an author-
ized and accredited agency, in the country of the prospective adoptive par-
ents. (Section 10)
What petition for May include prayer for change of name, rectification of simulated birth or Only petition for adoption.
adoption may include declaration that the child is a foundling, abandoned, dependent or ne-
glected child.
Is there a need to in- Not required Required to be annexed to the petition.
clude income tax re-
turns, police clear-
ance, character refer-
ence, family picture,
birth certificate of
adopter.
What law will apply R.A. 8552 will apply R.A. 8043 does not apply
when a foreigner who
is married to a Filipino
citizen seeks to adopt
jointly with his/her
spouse, a relative
within the 4th degree
of consanguinity or af-
finity of the Filipino
spouse
Supervised Trial Cus- Supervised Trial Custody period in the Philippines for at least 6 Supervised Trial Custody period in the Philippines for at least 6 months. (Sec-
tody months(Court may reduce the period or exempt parties from trial custody) tion 14)
(Section 12)
Penalty for any gov- Shall automatically suffer suspension until the resolution of the case Same. (Section 17)
ernment official, em-
ployee or functionary
who shall be found
guilty of violating any
of the provisions of
this adoption laws

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Summary of the procedure a petition for domestic adop-
tion under RA 8552
1. A lawyer prepares the petition for the person or persons
wanting to adopt. It includes documents like:
a. Birth certificates;
b. Marriage certificates;
c. Proof of financial capacity;
d. Clearances; and
e. Other proof of good moral character, good health,
etc.
2. Upon payment of the docket fee, the petition is raffled
to a family court (of the city nearest the place where the
petitioner resides).
a. If the petition is sufficient in form and substance, the
court issues an order, usually within a month after
filing of the petition, setting the case for initial hear-
ing and ordering the court social worker to conduct a
case study and home visit.
3. The court order is published in a newspaper of general
circulation once a week for three weeks. The newspaper
is chosen by raffle conducted by the Office of the Clerk
of Court, in compliance with a SC circular.
4. Before the initial hearing, the social worker conducts a
case study and home visit. The social worker submits his
investigation report and recommendations to the court
before the initial hearing.
5. On the date of the initial hearing, the petitioner and the
prospective adoptee must be present. The lawyer pre-
sents what are known as jurisdictional facts (petition,
proof of publication in newspaper, notice to the OSG,
etc.).
6. If there is no opposition to the petition for adoption by
any party, then the lawyer asks the court permission for
an ex parte presentation of evidence, done before only
the court stenographer and the court appointed com-
missioner (the branch clerk of court). The court, how-
ever, can require presentation of evidence in open
court.
7. If the court decision is favorable and there is no appeal
by any party, then the court issues a Certificate of Final-
ity. The lawyer then coordinates with the Local Civil Reg-
istrar (of the town or city where the court is located, and
the adoptee’s birthplace and the NSO for the issuance of
a new birth certificate bearing the petitioner’s surname.
Notes:
Essential effect: For civil purposes, adoptee becomes
adopter’s child.
Whom may adopt: Qualified citizens and aliens.
Overriding consideration: Best interest of the child as
long as parent’s natural rights are respected [citing La-
hom v. Sibulo, 2003]
Compliance with statutory requirements:
o Substantial, not strictly technical [citing Republic v.
CA, 1992]
New rule on adoption: 2002 Rule on Adoption
Matters considered:
o May include petition for change of name.
Requisites:
o Includes social worker’s reports
o 6 month trial custody
Nature of petition:
o Separate and distinct from petition for rescission
and revocation of adoption.
Petition for Rescission and Revocation of Adoption:
o Neither continuation nor incident of petition for
adoption.
o May be filed in court other than court which issued
adoption (citing De la Cruz v. De la Cruz, 1964)
PROCEEDINGS FOR THE
HOSPITALIZATION OF INSANE PERSONS
RULE 101
Sec. 1. Venue; Petition for commitment. - A petition for the
commitment of a person to a hospital or other place for the
insane may be filed with the Court of First Instance of the
province where the person alleged to be insane is found. The
petition shall be filed by the Director of Health in the all cases
where, in his opinion, such commitment is for the public wel-
fare, or for the welfare of said person who, in his judgment,
is insane, and such person or the one having charged of him
is opposed to his being taken to a hospital or other place for
the insane.chanrobles virtualawlibrary
Sec. 2. Order for hearing. - If the petition filed is sufficient in
form and substance, the court, by an order reciting the pur-
pose of the petition, shall fix a date for the hearing thereof,
and copy of such order shall be served on the person alleged
to be insane, and to the one having charge of him, or on such
of his relatives residing in the province or city as the judge
may deem proper. The court shall furthermore order the
sheriff to produce the alleged insane person, if possible, on
the date of the hearing.
Sec. 3. Hearing and judgment. - Upon satisfactory proof, in
open court on the date fixed in the order, that the commit-
ment applied for is for the public welfare or for the welfare
of the insane person, and that his relatives are unable for any
reason to take proper custody and care of him, the court
shall order his commitment to such hospital or other place
for the insane as may be recommended by the Director of
Health. The court shall make proper provisions for the cus-
tody of property or money belonging to the insane until a
guardian be properly appointed.
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Sec. 4. Discharge of insane. - When, in the opinion of the Di-
rector of Health, the person ordered to be committed to a
hospital or other place for the insane is temporarily or per-
manently cured, or may be released without danger he may
file the proper petition with the Court of First Instance which
ordered the commitment.
Sec. 5. Assistance of fiscal in the proceeding. - It shall be the
duty of the provincial fiscal or in the City of Manila the fiscal
of the city, to prepare the petition for the Director of Health
and represent him in court in all proceedings arising under
the provisions of this rule.
JURISPRUDENCE
CHIN AH FOO V. CONCEPCION
SUMMARY: Cham Sam (alias Chin Ah Woo) was charged with
the murder of Chin Ah Kim. He was acquitted on the plea of
insanity and was confined as an insane person in the San
Lazaro Hospital. He was released upon order of the CFI judge
Concepcion pursuant to Art. 8 of the RPC without the acqui-
escence of the Director of Health. The family of the mur-
dered Chin Ah Kim questioned Cham Sam’s release, arguing
that Sec. 1048 of the Administrative Code, which has super-
seded or supplemented the RPC, requires the opinion of the
Director of Health before the release of an insane person.
The Court held that the judge exceeded his authority in or-
dering the release and that the opinion of the Director of
Health should have been sought.
DOCTRINE: The powers of the courts and the Director of
Health are complementary with each other. Any person con-
fined by order of the court in an asylum in accordance with
Art. 8 of the RPC cannot be discharged from custody in an
insane asylum until the views of the Director of Health have
been ascertained as to whether or not the person is tempo-
rarily or permanently cured or may be released without dan-
ger.
THE WRIT OF HABEAS CORPUS (WHC)
RULE 102
Section 1. To what habeas corpus extends. — Except as oth-
erwise expressly provided by law, the writ of habeas cor-
pus shall extend to all cases of illegal confinement or deten-
tion by which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld from the
person entitled thereto.
Section 2. Who may grant the writ. — The writ of habeas
corpus may be granted by the Supreme Court, or any mem-
ber thereof in the instances authorized by law, and if so
granted it shall be enforceable anywhere in the Philippines,
and may be made returnable before the court or any mem-
ber thereof, or before a Court of First Instance, or any judge
thereof for the hearing and decision on the merits. It may
also be granted by a Court of First Instance, or a judge
thereof, on any day and at any time, and returnable before
himself, enforceable only within his judicial district.
Section 3. Requisites of application therefor. — Application
for the writ shall be by petition signed and verified either by
the party for whose relief it is intended, or by some person
on his behalf, and shall set forth:
(a) That the person in whose behalf the application is made
is imprisoned or restrained on his liberty;
(b) The officer or name of the person by whom he is so im-
prisoned or restrained; or, if both are unknown or uncertain,
such officer or person may be described by an assumed ap-
pellation, and the person who is served with the writ shall be
deemed the person intended;
(c) The place where he is so imprisoned or restrained, if
known;
(d) A copy of the commitment or cause of detention of such
person, if it can be procured without impairing the efficiency
of the remedy; or, if the imprisonment or restraint is without
any legal authority, such fact shall appear.
Section 4. When writ not allowed or discharge authorized.
— 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 or by virtue of a judgment or order of a court
of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the
writ shall not be allowed; or if the jurisdiction appears after
the writ is allowed, the person shall not be discharged by rea-
son of any informality or defect in the process, judgment, or
order. Not shall anything in this rule be held to authorize the
discharge of a person charged with or convicted of an of-
fense in the Philippines, or of a person suffering imprison-
ment under lawful judgment.
Section 5. When the writ must be granted and issued. — A
court or judge authorized to grant the writ must, when a pe-
tition therefor is presented and it appears that the writ ought
to issue, grant the same forthwith, and immediately there-
upon the clerk of the court shall issue the writ under the seal
of the court; or in case of emergency, the judge may issue
the writ under his own hand, and may depute any officer or
person to serve it.
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Section 6. To whom writ directed, and what to require. — In
case of imprisonment or restraint by an officer, the writ shall
be directed to him, and shall command him to have the body
of the person restrained of his liberty before the court or
judge designated in the writ at the time and place therein
specified. In case of imprisonment or restraint by a person
not an officer, the writ shall be directed to an officer, and
shall command him to take and have the body of the person
restrained of his liberty before the court or judge designated
in the writ at the time and place therein specified, and to
summon the person by whom he is restrained then and there
to appear before said court or judge to show the cause of the
imprisonment or restraint.
Section 7. How prisoner designated and writ served. — The
person to be produced should be designated in the writ by
his name, if known, but if his name is not known he may be
otherwise described or identified. The writ may be served in
any province by the sheriff or other proper officer, or by a
person deputed by the court or judge. Service of the writ
shall be made by leaving the original with the person to
whom it is directed and preserving a copy on which to make
return or service. If that person cannot be found, or has not
the prisoner in his custody, then the service shall be made on
any other person having or exercising such custody.
Section 8. How writ executed and returned. — The officer to
whom the writ is directed shall convey the person so impris-
oned or restrained, and named in the writ, before the judge
allowing the writ, or in case of his absence or disability, be-
fore some other judge of the same court, on the day speci-
fied in the writ, unless, from sickness or infirmity of the per-
son directed to be produced, such person cannot, without
danger, be bought before the court or judge; and the officer
shall make due return of the writ, together with the day and
the cause of the caption and restraint of such person accord-
ing to the command thereof.
Section 9. Defect of form. — No writ of habeas corpus can be
disobeyed for defect of form, if it sufficiently appears there-
from in whose custody or under whose restraint the party
imprisoned or restrained is held and the court or judge be-
fore whom he is to be bought.
Section 10. Contents of return. — When the person to be
produced is imprisoned or restrained by an officer, the per-
son who makes the return shall state therein, and in other
cases the person in whose custody the prisoner is found shall
state, in writing to the court or judge before whom the writ
is returnable, plainly and unequivocally:
(a) Whether he has or has not the party in his custody or
power, or under restraint;
(b) If he has the party in his custody or power, or under re-
straint, the authority and the true and whole cause thereof,
set forth at large, with a copy of the writ, order execution, or
other process, if any, upon which the party is held;
(c) If the party is in his custody or power or is restrained by
him, and is not produced, particularly the nature and gravity
of the sickness or infirmity of such party by reason of which
he cannot, without danger, be bought before the court or
judge;
(d) If he has had the party in his custody or power, or under
restraint, and has transferred such custody or restraint to an-
other, particularly to whom, at what time, for what cause,
and by what authority such transfer was made.
Section 11. Return to be signed and sworn to. — The return
or statement shall be signed by the person who makes it; and
shall also be sworn by him if the prisoner is not produced,
and in all other cases unless the return is made and signed
by a sworn public officer in his official capacity.
Section 12. Hearing on return. Adjournments. — When the
writ is returned before one judge, at a time when the court
is in session, he may forthwith adjourn the case into the
court, there to be heard and determined. The court or judge
before whom the writ is returned or adjourned must imme-
diately proceed to hear and examine the return, and such
other matters as are properly submitted for consideration,
unless for good cause shown the hearing is adjourned, in
which event the court or judge shall make such order for the
safekeeping of the person imprisoned or restrained as the
nature of the case requires. If the person imprisoned or re-
strained is not produced because of his alleged sickness or
infirmity, the court or judge must be satisfied that it is so
grave that such person cannot be produced without danger,
before proceeding to hear and dispose of the matter. On the
hearing the court or judge shall disregard matters of form
and technicalities in respect to any warrant or order of com-
mitment of a court or officer authorized to commit by law.
Section 13. When the return evidence, and when only a
plea. — If it appears that the prisoner is in custody under a
warrant of commitment in pursuance of law, the return shall
be considered prima facie evidence of the cause of restraint,
but if he is restrained of his liberty by any alleged private au-
thority, the return shall be considered only as a plea of the
facts therein set forth, and the party claiming the custody
must prove such facts.
Section 14. When person lawfully imprisoned recommitted,
and when let to bail. — If it appears that the prisoner was
lawfully committed, and is plainly and specifically charged in
the warrant of commitment with an offense punishable by
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death, he shall not be released, discharged, or bailed. If he is
lawfully imprisoned or restrained on a charge of having com-
mitted an offense not so punishable, he may be recommitted
to imprisonment or admitted to bail in the discretion of the
court or judge. If he be admitted to bail, he shall forthwith
file a bond in such sum as the court or judge deems reason-
able, considering the circumstances of the prisoner and the
nature of the offense charged, conditioned for his appear-
ance before the court where the offense is properly cogniza-
ble to abide its order of judgment; and the court or judge
shall certify the proceedings, together with the bond, forth-
with to the proper court. If such bond is not so filed, the pris-
oner shall be recommitted to confinement.
Section 15. When prisoner discharged if no appeal. — When
the court or judge has examined into the cause of caption
and restraint of the prisoner, and is satisfied that he is un-
lawfully imprisoned or restrained, he shall forthwith order
his discharge from confinement, but such discharge shall not
be effective until a copy of the order has been served on the
officer or person detaining the prisoner. If the officer or per-
son detaining the prisoner does not desire to appeal, the
prisoner shall be forthwith released.
Section 16. Penalty for refusing to issue writ, or for disobey-
ing the same. — A clerk of a court who refuses to issue the
writ after allowance thereof and demand therefor, or a per-
son to whom a writ is directed, who neglects or refuses to
obey or make return of the same according to the command
thereof, or makes false return thereof, or who, upon demand
made by or on behalf of the prisoner, refuses to deliver to
the person demanding, within six (6) hours after the demand
therefor, a true copy of the warrant or order of commitment,
shall forfeit to the party aggrieved the sum of one thousand
pesos, to be recorded in a proper action, and may also be
punished by the court or judge as for contempt.
Section 17. Person discharged not to be again imprisoned.
— A person who is set at liberty upon a writ of habeas cor-
pus shall not be again imprisoned for the same offense un-
less by the lawful order or process of a court having jurisdic-
tion of the cause or offense; and a person who knowingly,
contrary to the provisions of this rule, recommits or impris-
ons, or causes to be committed or imprisoned, for the same
offense, or pretended offense, any person so set at liberty,
or knowingly aids or assists therein, shall forfeit to the party
aggrieved the sum of one thousand pesos, to be recovered
in a proper action, notwithstanding any colorable pretense
or variation in the warrant of commitment, and may also be
punished by the court or judge granting the writ as for con-
tempt.
Section 18. When prisoner may be removed from one cus-
tody to another. — A person committed to prison, or in cus-
tody of an officer, for any criminal matter, shall not be re-
moved therefrom into the custody of another unless by legal
process, or the prisoner be delivered to an inferior officer to
carry to jail, or, by order of the proper court or judge, be re-
moved from one place to another within the Philippines for
trial, or in case of fire epidemic, insurrection, or other neces-
sity or public calamity; and a person who, after such commit-
ment, makes signs, or counter-signs any order for such re-
moval contrary to this section, shall forfeit to the party ag-
grieved the sum of one thousand pesos, to be recovered in a
proper action.
Section 19. Record of writ, fees and costs. — The proceed-
ings upon a writ of habeas corpus shall be recorded by the
clerk of the court, and upon the final disposition of such pro-
ceedings the court or judge shall make such order as to costs
as the case requires. The fees of officers and witnesses shall
be included in the costs taxed, but no officer or person shall
have the right to demand payment in advance of any fees to
which he is entitled by virtue of the proceedings. When a per-
son confined under color of proceedings in a criminal case is
discharged, the costs shall be taxed against the Republic of
the Philippines, and paid out of its Treasury; when a person
in custody by virtue or under color of proceedings in a civil
case is discharged, the costs shall be taxed against him, or
against the person who signed the application for the writ,
or both, as the court shall direct.
BP 129, SECS. 21(1), SEC. 39
Section 21. Original jurisdiction in other cases. – Regional
Trial Courts shall exercise original jurisdiction:
(1) In the issuance of writs of certiorari, prohibition, manda-
mus, quo warranto, habeas corpus and injunction which may
be enforced in any part of their respective regions;
Section 39. Appeals. – The period for appeal from final or-
ders, resolutions, awards, judgments, or decisions of any
court in all cases shall be fifteen (15) days counted from the
notice of the final order, resolution, award, judgment, or de-
cision appealed from: Provided however, That in habeas cor-
pus cases, the period for appeal shall be forty-eight (48)
hours from the notice of the judgment appealed from.
No record on appeal shall be required to take an appeal. In
lieu thereof, the entire record shall be transmitted with all
the pages prominently numbered consecutively, together
with an index of the contents thereof.
This section shall not apply in appeals in special proceedings
and in other cases wherein multiple appeals are allowed un-
der applicable provisions of the Rules of Court.
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*For the full texts of AM No. 03-04-04-SC, 7-9012-SC, and
08-1-16-SC, please refer to the compilation of laws.
Cases covered by Habeas Corpus
All cases of illegal confinement or detention
a. by which any person is deprived of his liberty, or
b. by which the rightful custody of any person is withheld
from the person entitled thereto.
Definition of Habeas Corpus – A writ directed to the person
detaining another and commanding him to produce the body
of the prisoner at a certain time and place, with the day and
the cause of his caption and detention, to do, and receive
whatsoever the court or judge awarding the writ shall con-
sider in that behalf. It requires the determination of whether
his detention of confinement Is illegal or not or whether by
his detention, another person is deprived of his legal custody
over him.
Purpose of the Writ - may be availed of where, as a conse-
quence of a judicial proceeding:
a. there has been a deprivation of a constitutional right re-
sulting in the restraint of a person
b. the court has no jurisdiction to impose the sentence, or
c. an excessive penalty has been imposed, as such is void as
to such excess[Feria v. CA]
Concept of Restraint
Actual and effective, and not merely nominal or moral, re-
straint is required [Zagala v. Ilustre]
Construction of formalities required for petitions for habeas
corpus under Section 3 of Rule 102
It must be construed liberally. Strict compliance with the
technical requirements for habeas corpus petition in the
Rules of Court may be dispensed with where the allegations
in the application are sufficient to make out a case for habeas
corpus.[Fletcher v. Director of Bureau of Corrections]
Nature of the Petition for Habeas Corpus
1. Like a proceeding in rem as it is an inquisition by the gov-
ernment at the suggestion and instance of an individual
but still in the name and capacity of the sovereign.
2. Not in the nature of a writ of error; nor intended as a
substitute for the trial court’s function
3. Cannot take the place of appeal, certiorari or writ of er-
ror
4. Cannot be used to investigate and consider questions of
error that might be raised relating to procedure or on
the merits
5. The inquiry in a habeas corpus proceeding is addressed
to the question of whether the proceedings and the as-
sailed order are null and void
6. Not ordinarily granted where the law provides for other
remedies in the regular course and in the absence of ex-
ceptional circumstances
7. Not granted in advance of trial
8. A summary remedy
9. Does not act upon the prisoner who seeks relief but
upon the person who holds him in what is alleged to be
the unlawful authority,
10. A prerogative writ which does not issue as a matter of
right but in the sound discretion of the court or judge. It
is however a writ of right on proper formalities being
made by proof.
Factors to consider in granting the writ
A court or judge must first inquire into whether the peti-
tioner is being restrained of his liberty. If not, the writ will be
refused. Inquiry into the cause of detention will proceed only
where such restrain exists. If the alleged cause is thereafter
found to be unlawful, then the writ should be granted and
the petitioner discharged. If otherwise, the writ will be re-
fused.
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. [In the mat-
ter of the petition for habeas corpus of Eufemia Rodriguez v.
Villanueva]
Cases where writ may be extended
1. To test the legality of an alien’s detention and proposed
deportation from the Philippines
2. To enable parents to regain the custody of a minor child
even if the latter be in the custody of a third person of
his own free will. Generally cases where the rightful cus-
tody of a person is withheld from the person entitled
thereto.
Effect of release of the person in whose behalf the applica-
tion for the writ of habeas corpus was filed
The petition for the issuance of the writ becomes moot and
academic.[Pulido v. General Abu]
Exception: The court may not dismiss a petition for writ of
habeas corpus on the ground that the minor had already
been produced in court. In cases involving minors, the main
purpose is to determine who has the rightful custody over
the child. [Tijing v. CA]
Requisites for the grant of the WHC involving custody of mi-
nors
1. The petitioner has the right of custody over the minor
child;
2. The rightful custody over the minor is being withheld by
the respondent;
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3. it serves the best interest of the minor child to be in the
custody of the petitioner rather than with the respond-
ent.
Preliminary Citation vis-à-vis Peremptory writ
Where the person is detained under governmental authority
and the illegality of his detention is not patent from the pe-
tition for the writ, the court may issue a citation to the gov-
ernment officer having the person in his custody to show
cause why the writ of habeas corpus should not issue. This is
known as a preliminary citation, as distinguished from a per-
emptory writ. This is issued when the cause of the detention
appears to be patently illegal, and the non-compliance
wherewith is punishable. [Lee Yick Hon v. Insular Collector of
Customs]
Implication of the Return
The allegation in the return is deemed admitted if the allega-
tions in the return are not controverted. The failure to file a
return, notwithstanding an order requiring petitioner to re-
ply thereto, amounts to an admission of the truth of the facts
stated in the return and justifies dismissal of the petition for
habeas corpus.
Period to appeal in Habeas Corpus
48 hours from notice of the judgment appealed from.
When prisoner is allowed to post bail
If it appears that the prisoner was lawfully committed, and is
plainly and specifically charged in the warrant of commit-
ment with an offense punishable by death, he shall not be
released, discharged, or bailed.
If he is lawfully imprisoned or restrained on a charge of hav-
ing committed an offense not so punishable, he may be re-
committed to imprisonment or admitted to bail in the discre-
tion of the court or judge.
If he be admitted to bail, he shall forthwith file a bond in such
sum as the court or judge deems reasonable, considering the
circumstances of the prisoner and the nature of the offense
charged, conditioned for his appearance before the court
where the offense is properly cognizable to abide its order of
judgment; and the court or judge shall certify the proceed-
ings, together with the bond, forthwith to the proper court.
If such bond is not so filed, the prisoner shall be recommitted
to confinement. [Rule 102, Sec. 14]
Notes:
Remedy for:
o Illegal confinement/detainment or deprivation of
liberty
o Withholding of rightful custody
Procedural requirements: not stringent.
Available of “other collateral remedies” (certiorari, man-
damus) is not a constricting factor.
Essential requisite: Restriction in personal liberty [citing
Bautista, 2001)
Nature of the suit [citing Bautista, 2001]:
Not a suit between private parties.
No real plaintiff and defendant.
Benefits the person restrained.
Suit by the state at an individual’s instance.
Analogous to proceeding in rem to fix a person’s status.
The “custody” requirement
Restraint of liberty.
Where not applicable:
o Person released on bail (citing Bautista, 2001)
Rationale:
Actual, physical restraint is necessary.
Not mere moral nor nominal restraint.
Example of case where the writ does not apply:
Suit to compel husband to live with wife
[citing Ilusorio v. Bildner, 2000]
o Where the committing court committed errors
within its jurisdiction [citing Calvan v. CA, 2000]
Where applicable:
o Lack of jurisdiction in issuing order/judgment de-
taining/restraining a person’s liberty [citing Calvan
v. CA, 2000]
QUESTIONS
Q: Does the CA have jurisdiction to issue writs of habeas
corpus in cases involving custody of minors in light of
the provisions of R.A. 8369 giving family courts exclu-
sive original jurisdiction over such petitions?
A: Yes. R.A. 8369 did not divest the CA and the SC of their
jurisdiction over habeas corpus cases involving cus-
tody of minors. Whatever uncertainty was settled by
A.M. No. 03-03-04-SC which provides that such peti-
tion may likewise be filed with the SC, CA or with any
of its members, and if so granted, the writ shall be en-
forceable anywhere in the Philippines. [Thornton v.
Thornton]
Q: May a wife secure a writ of habeas corpus (WHC) to
compel her husband to live with her in conjugal bliss?
A: No, marital rights including coverture and living in
conjugal dwelling may not be enforced by WHC. To
justify the grant of the petition, the restraint of liberty
must be an illegal and involuntary deprivation of free-
dom of action. [Ilusorio v. Bildner]
Q: Can a WHC be issued if the detention is by virtue of
valid judgments?
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A: No, Rule 102 Section 4 applies.
Exception: The writ may be allowed as a post-convic-
tion remedy when the proceedings leading to the con-
viction were attended by any of the following excep-
tional circumstances:
1. There was a deprivation of a constitutional right
resulting in the restraint of a person
2. The court had no jurisdiction to impose the sen-
tence or
3. The imposed penalty was excessive thus voiding
the sentence as to such excess [Barredo v. Vinarao]
Q: May WHC be granted if the prisoner had served the
minimum of his sentence?
A: No, he must serve his sentence up to its maximum
term [Office of the Court Administrator v. Perello]
Q: May a petition for WHC be filed together with a peti-
tion for Certiorari?
A: The 2 writs may be ancillary to each other where nec-
essary to give effect to the supervisory powers of the
higher courts. A WHC reaches the body and jurisdic-
tional matters. A writ of certiorari reaches the record
but not the body. Hence, a WHC may be used with the
writ of certiorari for the purpose of review. However,
habeas corpus does not lie where the petitioner has
the remedy of appeal or certiorari because it will not
be permitted to perform the functions of a writ of er-
ror or appeal for the purpose of reviewing errors or
irregularities in the proceedings of a court having ju-
risdiction over the person and the subject matter[Gal-
vez v. CA]
Q: Who may grant the writ?
A: (1) The Supreme Court – enforceable throughout the
Philippines
(2) The Court of Appeals - enforceable throughout the
Philippines
(3) The RTC – enforceable within its respective Judicial
Region
(4) When there is no available RTC judge, the Munici-
pal Trial Court
(5) Sandiganbayan, only if it is in aid of its appellate
jurisdiction
Q: What must be alleged in the petition for WHC?
A: (1) That the person in whose behalf the application is
made is imprisoned or restrained of his liberty;
(2) The officer or name of the person by whom he is
so imprisoned or restrained; or, if both are unknown
or uncertain, such officer or person may be described
by an assumed appellation, and the person who is
served with the writ shall be deemed the person in-
tended;
(3) The place where he is so imprisoned or restrained,
if known;
(4) A copy of the commitment or cause of detention
of such person, if it can be procured without impairing
the efficiency of the remedy; or, if the imprisonment
or restraint is without any legal authority, such fact
shall appear.
Q: Who has the burden of proving illegal restraint?
A: General rule is that the burden rests on the petitioner
who attaches such restraints. [Jackson v. Macalino]
Q: When is a writ not allowed or when is discharge not
authorized?
A: (1) If it appears that the person alleged to be re-
strained of his liberty is in the custody of an officer un-
der process issued by a court or by virtue of a judg-
ment or order of a court of record, and that the court
had jurisdiction to issue the process, render the judg-
ment, or make the order.
(2) A person charged with or convicted of an offense
in the Philippines or of a person suffering imprison-
ment under lawful judgment.
(3) If the jurisdiction appears after the writ is allowed,
the person shall not be discharged by reason of any
informality or defect in the process, judgment or or-
der.
Q: Can a detention prisoner avail of the writ to post bail?
A: Prisoner can avail of the habeas corpus proceeding to
post bail to ensure his appearance before the court if
the offense charged is bailable and if he has been de-
tained and held without bail. However, if the offense
is non-bailable, he cannot obtain his provisional lib-
erty on bail by habeas corpus proceeding.
THE WRIT OF AMPARO (WOA)
Definition of Writ of Amparo
It is a remedy available to any person whose right to life, lib-
erty, and security has been violated or is threatened with vi-
olation by an unlawful act or omission of a public official or
employee, or of a private individual or entity. The writ covers
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extralegal killings and enforced disappearances or threats
thereof.
Contents of petition for WoA
1. The personal circumstances of the petitioner;
2. The name and personal circumstances of the respond-
ent responsible for the threat, act or omission, or, if the
name is unknown or uncertain, the respondent may be
described by an assumed appellation;
3. The right to life, liberty and security of the aggrieved
party violated or threatened with violation by an unlaw-
ful act or omission of the respondent, and how such
threat or violation is committed with the attendant cir-
cumstances detailed in supporting affidavits;
4. The investigation conducted, if any, specifying the
names, personal circumstances, and addresses of the in-
vestigating authority or individuals, as well as the man-
ner and conduct of the investigation, together with any
report;
5. The actions and recourses taken by the petitioner to de-
termine the fate or whereabouts of the aggrieved party
and the identity of the person responsible for the threat,
act or omission; and
6. The relief prayed for.
The petition may include a general prayer for other just and
equitable reliefs.
Service of WoA
The writ shall be served upon the respondent by a judicial
officer or by a person deputized by the court, justice or judge
who shall retain a copy on which to make a return of service.
In case the writ cannot be served personally on the respond-
ent, the rules on substituted service shall apply.[Sec. 8]
After Service of the Writ, what respondent must do
Within seventy-two (72) hours after service of the writ, the
respondent shall file a verified written return together with
supporting affidavits which shall, among other things, con-
tain the following:
1. The lawful defenses to show that the respondent did not
violate or threaten with violation the right to life, liberty
and security of the aggrieved party, through any act or
omission;
2. The steps or actions taken by the respondent to deter-
mine the fate or whereabouts of the aggrieved party and
the person or persons responsible for the threat, act or
omission;
3. All relevant information in the possession of the re-
spondent pertaining to the threat, act or omission
against the aggrieved party; and
4. If the respondent is a public official or employee, the re-
turn shall further state the actions that have been or will
still be taken:
a. to verify the identity of the aggrieved party;
b. to recover and preserve evidence related to the
death or disappearance of the person identified in
the petition which may aid in the prosecution of the
person or persons responsible;
c. to identify witnesses and obtain statements from
them concerning the death or disappearance;
d. to determine the cause, manner, location and time
of death or disappearance as well as any pattern or
practice that may have brought about the death or
disappearance;
e. to identify and apprehend the person or persons in-
volved in the death or disappearance; and
f. to bring the suspected offenders before a compe-
tent court.
The return shall also state other matters relevant to the in-
vestigation, its resolution and the prosecution of the case.
A general denial of the allegations in the petition shall not be
allowed. [Sec. 9]
Nature of the hearing on the petition of the writ
The hearing on the petition shall be summary. However, the
court, justice, or judge may call for a preliminary conference
to simplify the issues and determine the possibility of obtain-
ing stipulations and admissions from the parties. The hearing
shall be from day to day until completed and given the same
priority as petitions for habeas corpus.
Interim Reliefs available to petitioner
Upon filing of the petition or at anytime before final judg-
ment, the court, justice or judge may grant any of the follow-
ing reliefs:
1. Temporary Protection Order
2. Inspection Order
3. Production Order
4. Witness Protection Order [Sec. 14]
These are provisional reliefs that the courts may grant in or-
der to, inter alia, protect the witnesses and the rights of the
parties, and preserve all relevant evidence. These provisional
reliefs are intended to assist the court before it arrives at a
judicious determination of the Amparo petition.
Burden of Proof required in a petition for WoA
The parties shall establish their claims by substantial evi-
dence. The respondent who is a private individual or entity
must prove that ordinary diligence as required by applicable
laws, rules and regulations was observed in the performance
of duty. The respondent who is a public official or employee
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must prove that extraordinary diligence as required by appli-
cable laws, rules and regulations was observed in the perfor-
mance of duty.
Substantial Evidence
Speaks of the clear intent of the rule to have the equivalent
of an administrative proceeding, albeit judicially conducted,
in resolving amparo petitions. It is the quantum of evidence
which a reasonable mind might accept as adequate to sup-
port a conclusion.[Gen. Yano, et al. v. Sanchez and Medina]
Importance of Extraordinary Diligence required upon a pub-
lic official or employee
The requirement for a government official or employee to
observe extraordinary diligence in the performance of duty
stresses the extraordinary measures expected to be taken in
safeguarding every citizen’s constitutional rights as well as in
the investigation of cases of extrajudicial killings and en-
forced disappearances [Gen. Yano, et al. v. Sanchez and Me-
dina]
Duration in deciding the petition for WoA
The court shall render the judgment within 10 days from the
time the petition is submitted for decision. If the allegations
in the petition are proven by substantial evidence, the court
shall grant the privilege of the writ and such reliefs as may be
proper and appropriate; otherwise, the privilege shall be de-
nied.
QUESTIONS
Q: Can the WoA be filed on Saturdays and Sundays?
A: Yes, the petition may be filed on any day and also any
time, considering that such is the protection of the
mother of all rights, the right to life.
Q: If the respondent fails to file a return, what will hap-
pen to the proceeding?
A: The court, justice, or judge shall proceed to hear the
petition ex parte or even without the appearance of
respondent
Q: What if the ground for a motion to dismiss is lack of
jurisdiction over the subject matter and the parties?
A: Such is proscribed by the rules on writ of amparo so
as to avoid undue delay
Q: Are the interim reliefs available to the respondent?
A: Yes, but only Inspection Order and Production Order.
These may be issued only after a verified motion is
filed by the respondent, supported by affidavits or tes-
timonies of witnesses having personal knowledge of
the defenses of the respondent and after due hearing.
Q: Will the failure to observe extraordinary diligence by
the public official ipso facto grant the writ of amparo?
A: No. It does not relieve the petitioners from establish-
ing his or her claim by substantial evidence. The omis-
sion or inaction on the part of the public official pro-
vides, however, some basis for the petitioner to move
and for the court to grant interim reliefs. [Gen. Yano,
et al. v. Sanchez and Medina]
Q: Pursuant to Sec. 17, can the respondent public official
or employee invoke presumption of regular perfor-
mance of duty to evade liability?
A: No, he must prove that the extraordinary diligence re-
quired by applicable laws was observed.
Q: Can a party appeal from the final judgment under rule
45 by not only raising questions of law but also of
facts?
A: Yes, Sec. 19 provides that the appeal may raise ques-
tions of law and fact.
Q: May the court dismiss the petition when there is fail-
ure on the part of the petitioner or witnesses to ap-
pear due to threats on their lives?
A: Under Sec. 20, the court shall not dismiss the petition,
but shall archive it. The amparo court may, on its own
or upon motion by any party, order the revival of the
petition when ready for further proceedings. The pe-
tition shall be dismissed with prejudice upon failure to
prosecute the case after the lapse of 2 years form no-
tice to the petitioner of the order archiving the case.
Q: Does the rule preclude the filing of separate criminal,
civil or administrative actions?
A: No, under Sec. 21. However, when a criminal action
has been commenced, no separate petition for the
writ shall be filed, but the reliefs under the writ shall
be available by motion in the criminal case, and the
procedure under this Rule shall govern the disposition
of the reliefs available under the writ of amparo.
Q: What is the effect when a criminal action is filed sub-
sequent to the filing of a petition for the WoA?
A: The petition shall be consolidated with the criminal
action. When a criminal actions and a separate civil ac-
tion are filed subsequent to a petition for a writ of am-
paro, the latter shall be consolidated with the criminal
action. After consolidation, the procedure under this
Rule shall continue to apply to the disposition of the
reliefs in the petition.
THE WRIT OF HABEAS D ATA (WHD)
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Definition
It is a remedy available to any person whose right to privacy
in life, liberty, or security is violated or threatened by an un-
lawful act or omission of a public official or employee, or of
a private individual or entity engaged in the gathering, col-
lecting or storing of data or information regarding the per-
son, family, home, and correspondence of the aggrieved
party.
Writ of Habeas Data Compared with Writ of Amparo
Habeas Data essentially allows families of victims of enforced
disappearance to petition the courts to compel government
and security officials to allow access to documents about the
missing.
The Writ of Amparo, on the other hand, denies state officials
the defense of denial with which they normally evade peti-
tions for habeas corpus that families of missing persons file,
and compels them instead to exert efforts to find these miss-
ing persons or face sanctions.
Contents of the petition for WHD
a. The personal circumstances of the petitioner and the re-
spondent;
b. The manner the right to privacy is violated or threatened
and how it affects the right to life, liberty or security of
the aggrieved party;
c. The actions and recourses taken by the petitioner to se-
cure the data or information;
d. The location of the files, registers or databases, the gov-
ernment office, and the person in charge, in possession
or in control of the data or information, if known;
e. The reliefs prayed for, which may include the updating,
rectification, suppression or destruction of the database
or information or files kept by the respondent.
In case of threats, the relief may include a prayer for an
order enjoining the act complained of; and
f. Such other relevant reliefs as are just and equitable.
[Sec. 6]
Service of WHD
The writ shall be served upon the respondent by a judicial
officer or by a person deputized by the court, justice or judge
who shall retain a copy on which to make a return of service.
In case the writ cannot be served personally on the respond-
ent, the rules on substituted service shall apply.
Contents of Return
a. The lawful defenses such as national security, state se-
crets, privileged communications, confidentiality of the
source of information of media and others;
b. In case of respondent in charge, in possession or in con-
trol of the data or information subject of the petition;
i. a disclosure of the data or information about the pe-
titioner, the nature of such data or information, and
the purpose for its collection;
ii. the steps or actions taken by the respondent to en-
sure the security and confidentiality of the data or in-
formation; and,
iii. the currency and accuracy of the data or information
held; and,
c. Other allegations relevant to the resolution of the pro-
ceeding.
A general denial of the allegations in the petition shall not be
allowed. [Sec. 10]
Concept of Contempt under Sec. 11
The court, justice or judge may punish with imprisonment or
fine a respondent who commits contempt by making a false
return, or refusing to make a return; or any person who oth-
erwise disobeys or resist a lawful process or order of the
court.
It bears stressing that when the respondent fails to file a re-
turn, the court, justice or judge shall proceed to hear the pe-
tition ex parte, granting the petitioner such relief as the pe-
tition may warrant unless the court in its discretion requires
the petitioner to submit evidence.
When the Court may hear the petition in the chambers
A hearing in chambers may be conducted where the re-
spondent invokes the defense that the release of the data or
information in question shall compromise national security
or state secrets, or when the data or information cannot be
divulged to the public due to its nature or privileged charac-
ter. [Sec. 12]
Nature of the petition on the petition for WHD
The hearing on the petition shall be summary. However, the
court, justice, or judge may call for a preliminary conference
to simplify the issues and determine the possibility of obtain-
ing stipulations and admissions from the parties. [Sec.15]
QUESTIONS
Q: After the writ is served, what should the respondent
file?
A: The respondent shall file a verified written return to-
gether with supporting affidavits within five (5) work-
ing days from service of the writ, which period may be
reasonably extended by the Court for justifiable rea-
sons. [Sec.10]
Q: When should the court render judgment?
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A: The court shall render judgment within ten (10) days
from the time the petition is submitted for decision. If
the allegations in the petition are proven by substan-
tial evidence, the court shall enjoin the act com-
plained of, or order the deletion, destruction, or recti-
fication of the erroneous data or information and
grant other relevant reliefs as may be just and equita-
ble; otherwise, the privilege of the writ shall be de-
nied. [Sec. 16]
Q: Upon finality of judgment, when shall the same be en-
forced?
A: Upon its finality, the judgment shall be enforced by
the sheriff or any lawful officers as may be designated
by the court, justice or judge within five (5) working
days. [Sec. 16]
The officer who executed the final judgment shall,
within three (3) days from its enforcement, make a
verified return to the court. The return shall contain a
full statement of the proceedings under the writ and
a complete inventory of the database or information,
or documents and articles inspected, updated, recti-
fied, or deleted, with copies served on the petitioner
and the respondent. [Sec. 17]
Q: What is the obligation of the officer who executed the
final judgment?
A: The officer shall state in the return how the judgment
was enforced and complied with by the respondent,
as well as all objections of the parties regarding the
manner and regularity of the service of the writ. [Sec.
17]
The court shall set the return for hearing with due no-
tice to the parties and act accordingly.[Sec. 18]
Q: Does the filing of the petition preclude the filing of
separate criminal, civil, or administrative actions?
A: No, However, when a criminal action has been com-
menced, no separate petition for the writ shall be
filed, but the reliefs under the writ shall be available
by motion in the criminal case, and the procedure un-
der this Rule shall govern the disposition of the reliefs
available under the writ of habeas data. [Sec. 20]
JURISPRUDENCE
MONCUPA V. ENRILE
SUMMARY: Efren Moncupa was arrested and detained for
allegedly being a staff member of the National Democratic
Front. The 2 investigations conducted reported that he is not
a member of the NDC but recommended filing a case for ille-
gal possession of firearms and violation of PD 33. He re-
mained in detention without the arraignment or the pro-
ceedings moving. He filed for a petition of habeas corpus be-
fore the SC but during the pendency of the petition, he was
temporarily released. The respondents argue that the re-
lease made the petition moot and academic. The SC ruled
that the release did not render the petition moot as it was
merely temporary and it imposed conditions.
DOCTRINE: A release that renders a petition for a writ of ha-
beas corpus moot and academic must be one which is free
from involuntary restraints. Where a person continues to be
unlawfully denied one or more of his constitutional free-
doms, where there is present a denial of due process, where
the restraints are not merely involuntary but appear to be
unnecessary, and where a deprivation of freedom originally
valid has, in the light of subsequent developments, become
arbitrary, the person concerned or those applying in his be-
half may still avail themselves of the privilege of the writ.
GLENN CABALLES Y CHUA V. CA
SUMMARY: On November 19, 2001, Glenn Chua Caballes
was charged with rape of minor in the RTC of Malabon City.
Because the petitioner was charged with a non-bailable of-
fense, he was detained. On May 5, 2003, the petitioner filed
a motion seeking an earlier trial date, invoking his right to
speedy trial Act of 1998. On July 4, 2003, the petitioner filed
a motion for reconsideration of the order denying his peti-
tion for bail. However, the petitioner prompted the resolu-
tion of his motion for reconsideration and filed a motion to
dismiss on the ground that his right to speedy and trial has
been violated. The trial court reasoned that there was no vi-
olation of the petitioner’s right to speedy trail, considering
that the apparent delays could not be attributed to the peti-
tioner also sought post moments of the trials. The petitioner
then filed with CA a petition for Habeas Corpus and/or certi-
orari and prohibition. The CA denied the petition. The SC af-
firmed the CA.
DOCTRINE: Habeas corpus is not in the nature of a writ of
error; nor intended as substitute for the trial court’s func-
tion. It cannot take the place of appeal, certiorari or writ of
error. The writ cannot be used to investigate and consider
questions of error that might be raised relating to procedure
or on the merits. The inquiry in a habeas corpus proceeding
is addressed to the question of whether the proceedings and
the assailed order are, for any reason, null and void. The writ
is not ordinarily granted where the law provides for other
remedies in the regular course, and in the absence of excep-
tional circumstances. Moreover, habeas corpus should not
be granted in advance of trial. The orderly course of trial
must be pursued and the usual remedies exhausted before
resorting to the writ where exceptional circumstances are
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extant. In another case, it was held that habeas corpus can-
not be issued as a writ of error or as a means of reviewing
errors of law and irregularities not involving the questions of
jurisdiction occurring during the course of the trial, subject
to the caveat that constitutional safeguards of human life
and liberty must be preserved, and not destroyed. It has also
been held that where restraint is under legal process, mere
errors and irregularities, which do not render the proceed-
ings void, are not grounds for relief by habeas corpus be-
cause in such cases, the restraint is not illegal.
IN THE MATTER OF APPLICATION FOR THE ISSU-
ANCE OF A WRIT OF HABEAS CORPUS
THORNTON V. THORNTON
SUMMARY: Petitioner Richard Brian Thornton married Ad-
elfa and had a daughter named Sequiera with her. After
three years of marriage, Adelfa grew restless. One day, she
left their family home, taking their daughter with her. Rich-
ard filed a petition for habeas corpus in the Family Court in
Makati, this was dismissed based on the allegation that Se-
quiera was in Basilan Province,. Consequently, Richard filed
a petition for habeas corpus with the Court of Appeals. The
CA denied the petition on the gorund that the family courts
have exclusive original jurisdiction over petitions for habeas
corpus in relation to the custody of children. The Court held
otherwise, stating that the CA has concurrent jurisdiction
with family courts for such petitions. Otherwise, individuals
who do not know the whereabouts of minors they are look-
ing for would be helpless since they cannot seek redress from
family courts whose writs are enforceable only in their re-
spective territorial jurisdictions.
DOCTRINE: The Court of Appeals should take cognizance of
the case since there is nothing in RA 8369 that revoked its
jurisdiction to issue writs of habeas corpus involving the cus-
tody of minors. The Court of Appeals and Supreme Court
have concurrent jurisdiction with family courts in habeas cor-
pus cases where the custody of minors is involved.
Whatever uncertainty there was has been settled with the
adoption of A.M. No. 03-03-04-SC Re: Rule on Custody of Mi-
nors and Writ of Habeas Corpus in Relation to Custody of Mi-
nors. Section 20 of the rule provides that:
Section 20. Petition for writ of habeas corpus.- A verified pe-
tition for a writ of habeas corpus involving custody of minors
shall be filed with the Family Court. The writ shall be enforce-
able within its judicial region to which the Family Court be-
longs.
xxx xxx xxx
The petition may likewise be filed with the Supreme Court,
Court of Appeals, or with any of its members and, if so
granted, the writ shall be enforceable anywhere in the Phil-
ippines. The writ may be made returnable to a Family Court
or to any regular court within the region where the petitioner
resides or where the minor may be found for hearing and de-
cision on the merits.
MARDINAN V. MADRINAN
SUMMARY: The husband petitioner took 3 of his children
from their home so the wife files for a writ of habeas corpus
with the CA. The husband is questioning the jurisdiction of
the CA because according to him under Section 5(b) of RA
8369, family courts have exclusive original jurisdiction to
hear and decide the petition for habeas corpus filed by re-
spondent wife. The Supreme Court ruled in a previous juris-
prudence that the Court of Appeals should have cognizance
of this case since there is nothing in RA 8369 that revoked its
jurisdiction to issue writs of habeas corpus involving the cus-
tody of minors. RA 8369 did not divest the Court of Appeals
and the Supreme Court of their jurisdiction over habeas cor-
pus cases involving the custody of minors.
DOCTRINE: Court of Appeals and Supreme Court has concur-
rent jurisdiction with the family courts of Habeas Corpus in-
volving custody of minors.
BARREDO Y GOLANI V. VINARAO
SUMMARY: Samuel Barredo y Golani was found guilty in two
criminal cases, one for carnapping and the other for illegal
possession of firearms. He is currently serving his sentence
in the meaximum security compound of the New Bilibid
Prison (NBP), Muntinlupa. Barredo now files this Pet for Writ
of Habeas Corpus (WHC) to ask for his release from NBP on
the ground that he has already served a total of 18 years in
prison when he should only serve 14 years, 9 months and 18
days based on the Bureau of Corrections’ (BuCor) revised
computation table. The SC disagreed.
DOCTRINE:
General Rule: The WHC is not available when the person in
custody is under a judicial process or by virtue of a valid judg-
ment.
Exceptions to the General Rule:
a) There was a deprivation of a Consti right resulting in the
restraint of a person
b) The court had no jurisdiction to impose the sentence
c) The imposed penalty was excessive, thus voiding the
sentence as to such excess
In CAB, Barredo was detained by virtue of a final judgment of
QC RTC Br 103 convicting him for the crimes of carnapping
and illegal possession of firearms, as such WHC is not appli-
cable.
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IN THE MATTER OF THE PETITION FOR HABEAS
CORPUS ENGR. ASHRAF KUNTING
SUMMARY: Ashraf Kunting was arrested in Malaysia for vi-
olation of the Malaysian Internal Security. He was turned
over to the PNP Intelligence Group and Task Force pursuant
to a warrant of arrest issued by RTC of Basilan City. He was
charged with 4 counts of Kidnapping for Ransom and Serious
Illegal Detention with the RTC. He was transferred to the
Philippines. The request of the PNP IG to detain him in Camp
Crame was approved by the RTC. On Sept 15, 2003, RTC is-
sued an Order directing the PNP-IG, to immediately turn over
Kunting to the trial court since Kunting filed an Urgent Mo-
tion for Reinvestigation. PNP-IG allegedly filed a request with
the DOJ for a transfer of the venue of the trial. On Feb 11,
2005, the RTC reiterated its order to the PNP IG to turnover
Kunting to the court. This was not heeded by the PNP IG
claiming that the transfer request must first be resolved.
Kunting, through his counsel, filed a petition for the writ of
habeas corpus. He stated that he has been restrained of his
liberty since June 12, 2003 by the PNP-IG and was not in-
formed of the charges against him. SC ruled that be dis-
charged since he has been charged with a criminal offense
and his detention is based on the warrant of arrest issued by
the RTC. Thus, the petition for the issuance of a writ of ha-
beas corpus was dismissed.
DOCTRINE: The remedy of habeas corpus has one objective:
to inquire into the cause of detention of a person, and if
found illegal, the court orders the release of the detainee. If,
however, the detention is proven lawful, then the habeas
corpus proceedings terminate.
Under Section 4, Rule 102 of the Rules of Court, 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, the writ shall not be allowed. Also, it stated that noth-
ing in the rule should be held to authorize the discharge of a
person charged with or convicted of an offense in the Philip-
pines, or of a person suffering imprisonment under lawful
judgment.
Bernarte v. Court of Appeals holds that "once the person de-
tained is duly charged in court, he may no longer question
his detention by a petition for the issuance of a writ of ha-
beas corpus."
SALIENTES V. ABANILLA
SUMMARY: Loran in his personal capacity and as the repre-
sentative of his son, filed a Petition for Habeas Corpus and
Custody before the RTC alleging that he was being prevented
from seeing his son, Lorenzo, who was in the custody of his
wife and his in-laws. The RTC issued an Order requiring peti-
tioners to produce Lorenzo before the court and show cause
why the said child should not be discharged from restraint.
The petitioners filed a petition for certiorari before CA assail-
ing the said RTC Order. The CA dismissed the petition as well
as the motion for reconsideration. The SC affirmed the CA.
DOCTRINE: Habeas corpus may be resorted to in cases where
rightful custody is withheld from a person entitled thereto.
Under Article 211 of the Family Code, the father and the
mother have joint parental authority over their minor child
and consequently joint custody. In the absence of a judicial
grant of custody to one parent, both parents are still entitled
to the custody of their child. Hence, the remedy of habeas
corpus is available to the parent allegedly deprived of cus-
tody of his/her minor child.
EDITA BURGOS V. GLORIA MACAPAGAL-ARROYO
SUMMARY: Jonas Burgos – a farmer advocate and a member
of Kilusang Magbubukid sa Bulacan was abducted at Ever
Gotesco Mall, Commonwealth Avenue, Quezon City. Edita
Burgos filed a petition for the Issuance of the Writ of Habeas
Corpus, Writ of Amparo, and a petition to declare uncooper-
ative army officials in Contempt. The CA partially granted the
Write of Amparo and denied the Writ of Habeas Corpus and
petition for Contempt. CA found that the evidence failed to
establish her claimed direct connection between the abduc-
tors of Jonas and the military. It also found that the Armed
Forces of the Philippines (AFP) and the PNP did not fully exert
their effort in the conduct of investigation. The ruling of the
CA was brought to the SC. The SC ordered PNP and AFP to
cooperate with the CHR investigations, and granted the Writ
of Habeas Corpus, requiring army officials to produce the
body of Jonas Burgos. However, they were not held in con-
tempt since there was no proof beyond reasonable doubt yet
of their false returns.
DOCTRINE: Section 16 of the Rule on the Writ of Amparo pro-
vides that any person who otherwise disobeys or resists a
lawful process or order of the court may be punished for con-
tempt. Contempt is not presumed. In proceedings for crimi-
nal contempt, the defendant is presumed innocent and the
burden is on the prosecution to prove the charges beyond
reasonable doubt. The presumption of innocence can be
overcome only by proof of guilt beyond reasonable doubt.
SECRETARY OF NATIONAL DEFENSE V.
MANALO
SUMMARY: The Manalo brothers were abducted by military
men. After 18 months of detention, they escaped. Ten days
after their escape, they filed a petition to stop the military
from further depriving them of their right to liberty and other
basic rights. While the petition was pending, the writ of am-
paro took effect. The Manalo brothers filed a motion to trat
the existing petition as an amparo petition. The CA granted
the writ. The SC upheld. This is the first case decided upon by
the SC involving amparo.
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DOCTRINE: While there is no right to security expressly men-
tioned in the 1987 Constitution, the rights to be kept free
from torture and from incommunicado detention and soli-
tary detention fall under the general coverage of the right to
security of person under the writ of Amparo. Threats to lib-
erty, security, and life are actionable through a petition for
the wri
REV. FR. ROBERT REYES V. CA
SUMMARY: After the RTC dismissed charge for Rebellion
against Reyes and 17 others for lack of probable cause, his
counsel wrote a letter requesting the lifting of Hold Depar-
ture Order 45 issued by DOJ Secretary Gonzales. Subse-
quently, Reyes filed a petition for the issuance of the writ of
amparo claiming that despite the dismissal of the rebellion
case against petitioner, HDO 45 still subsists; every time he
would present himself at the NAIA for his flights abroad, he
stands to be detained and interrogated by BID officers be-
cause of the continued inclusion of his name and that the
Sec. of Justice has not acted on his request for the lifting of
HDO. CA denied the petition. SC affirmed the denial stating
that writ of amparo covers only extralegal killings and en-
forced disappearances or threats thereof.
DOCTRINE: Recourse is inappropriate because Section 22 of
the Rule on the Writ of Amparo. When a criminal action has
been commenced, no separate petition for the writ shall be
filed. The reliefs under the writ shall be available by motion
in the criminal case. Reyes should have filed with a motion to
lift HDO in the Criminal Case. Reyes In Crespo v. Mogul once
a complaint or information is filed in court, any disposition of
the case such as its dismissal or its continuation rests on the
sound discretion of the court. Despite the denial of respond-
ent’s MR of the dismissal of the case, the RTC has not lost
control over Criminal Case which is still pending before it. By
virtue of its residual power, the it retains the authority to en-
tertain incidents in the instant case to the exclusion of even
SC. Even in civil cases pending before the trial courts, the
Court has no authority to separately and directly intervene
through the writ of amparo, as elucidated in Tapuz v. Del Ro-
sario.
RAZON V. TAGITIS
SUMMARY: Engr. Morced N. Tagitis was last seen in Jolo,
Sulu. His disappearance was reported to the Jolo Police Sta-
tion. It was unacted upon for a month and hencee Mary B.
Tagitis (Tagitis), Engr. Tagitis's wife, filed a Petition for the
Writ of Amparo with the Court of Appeals against certain
members of the the PNP.
The CA issued the Writ of Amparo.
The PNP members appealed the decision of the CA to the Su-
preme Court. They mainly dispute:
1. the sufficiency in form and substance of the Amparo pe-
tition filed before the CA;
2. the sufficiency of the legal remedies the Tagitis took be-
fore petitioning for the writ;
3. the finding that the rights to life, liberty and security of
Tagitis had been violated;
4. the sufficiency of evidence supporting the conclusion that
Tagitis was abducted;
5. the conclusion that the CIDG Zamboanga was responsible
for the abduction; and,
6. generally, the ruling that the respondent discharged the
burden of proving the allegations of the petition by sub-
stantial evidence
DOCTRINE:
On the test for the sufficiency of a petition for writ of amparo:
To read the Rules of Court requirement on pleadings while
addressing the unique Amparo situation, the test in reading
the petition should be to determine whether it contains the
details available to the one filing the petition under the cir-
cumstances, WHILE presenting a cause of action showing a
violation of the victim’s rights to life, liberty and security
through State or private party action.
On whether enforced disappearance is a proper ground for a
writ of amparo:
The Amparo Rule expressly provides that the "writ shall
cover extralegal killings and enforced disappearances or
threats thereof.
However, while the Rule covers "enforced disappearances"
this concept is neither defined nor penalized in this jurisdic-
tion.
However, this not a stumbling block that will prevent the is-
suance of a writ of amparo, because UNDERLYING every en-
forced disappearance is a violation of the constitutional
rights to life, liberty and security that the Supreme Court is
mandated by the Constitution to protect through its rule-
making powers.
Furthermore, the Court has surveyed international law and
states that enforced disappearance as a State practice has
been repudiated by the international community, so that the
ban on it is now a generally accepted principle of interna-
tional law, which should be considered a part of the law of
the land, and which should act upon to the extent already
allowed under our laws and the international conventions
that bind us.
On the elements of an enforced disappearance:
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Under the definition in the UN Convention, the elements

that constitute enforced disappearance are essentially four-
fold:
i. arrest, detention, abduction or any form of deprivation of
liberty;
ii. carried out by agents of the State or persons or groups of
persons acting with the authorization, support or acqui-
escence of the State;
iii. followed by a refusal to acknowledge the detention, or a
concealment of the fate of the disappeared person; and
iv. placement of the disappeared person outside the protec-
tion of the law.

On relaxing the general rules of evidence in amparo proceed-

ings:
To give full meaning to our Constitution and the rights it pro-
tects, the Court declares that courts in amparo proceedings
should at least take a close look at the available evidence to
determine the correct import of every piece of evidence; and
this should include those usually considered inadmissible un-
der the general rules of evidence

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DIAGRAM DISTINCTION BETWEEN WRITS OF H ABEAS CORPUS, AMPARO AND DATA:

Writs of: Habeas Corpus Amparo Habeas Data

Legal Basis The rule was drafted pursuant to the SC’s constitutional power to promulgate rules for the protection and enforcement of constitutional rights[Constitution,
Art. VIII, Sec. 5(5)]
Governing Law Rule 102 A.M. No. 07-9-12-SC A.M. No. 08-1-16-SC
Definition is a Latin phrase which literally means “you have It is a remedy available to any person whose right to It is a remedy available to any person whose right to
the body.”It is a writ directed to the person de- life, liberty, and security has been violated or is threat- privacy in life, liberty, or security is violated or
taining another, commanding him to produce ened with violation by an unlawful act or omission of threatened by an unlawful act or omission of a pub-
the body of the prisoner at a designated time a public official or employee, or of a private individual lic official or employee, or of a private individual or
and place, with the day and cause of his capture or entity. The writ covers extralegal killings and en- entity engaged in the gathering, collecting or storing
and detention, to do, submit to, and receive forced disappearances or threats thereof. of data or information regarding the person, family,
whatsoever the court or judge awarding the home, and correspondence of the aggrieved party.
writ shall consider in that behalf.
Remedy for Sec. 1 - To all cases of illegal confinement or de- Sec. 1 - To any person whose right to life, liberty and Sec. 1 - To any person whose right to privacy in life,
tention: (1) by which any person is deprived of security is violated or threatened with violation by an liberty or security is violated or threatened by an un-
his liberty, or (2) by which the rightful custody unlawful act or omission of a public official or em- lawful act or omission of a public official or em-
of any person is withheld from the person enti- ployee, or of a private individual or entity. ployee, or of a private individual or entity engaged
tled thereto. in the gathering, collecting or storing of data or in-
formation regarding the person, family, home and
correspondence of the aggrieved party.
Effectivity July 1, 1997 October 24, 2007 February 2, 2008
Petitioner Sec. 3 - By the party for whose relief it is in- Sec. 2 - by the aggrieved party or by any qualified per- Sec. 2 – General Rule: Any aggrieved party
tended, or by some person on his behalf. son or entity in the following order: Except: In cases of extralegal killings and enforced
1. Any member of the immediate family, namely: the disappearances:
spouse, children and parents of the aggrieved party; (a) Any member of the immediate family of the ag-
2. Any ascendant, descendant or collateral relative of grieved party, namely: the spouse, children and par-
the aggrieved party within the fourth civil degree of ents; or
consanguinity or affinity, in default of those men- (b) Any ascendant, descendant or collateral relative
tioned in the preceding paragraph; or of the aggrieved party within the fourth civil degree
3. Any concerned citizen, organization, association or of consanguinity or affinity, in default of those men-
institution, if there is no known member of the imme- tioned in the preceding paragraph.
diate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends

the right of all other authorized parties to file similar
petitions. Likewise, the filing of the petition by an au-
thorized party on behalf of the aggrieved party sus-
pends the right of all others, observing the order es-
tablished herein.

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Writs of: Habeas Corpus
Venue Rule 4, Sec. 2 – Where the plaintiff resides or
where the defendant resides, or in the case of
non-resident defendant, where he may be
found, at the election of the plaintiff.
Extent of en- SC, CA and Sandiganbayan – anywhere in the
forceability Philippines.
RTC – only within its judicial district
When to file Sec. 2 – On any day and at any time
Docket Fees
and other Law-
ful Fees
Requisites of Sec. 3 – Signed and verified
Petition
Issuance of the Sec. 5 – When it appears it ought to be issued
writ immediately
Summary Sec. 12 – Hearing on return
Hearing
How served Sec. 7 - By leaving the original with the person
to whom it is directed and preserving a copy on
which to make return or service. If that person
cannot be found, or has not the prisoner in his
custody, then the service shall be made on any
other person having or exercising such custody.
Contents of Re- Sec. 10, Signed and shall also be sworn to if the
turn prisoner is not produced.
Penalties Sec. 16 - Clerk of a court who refuses to issue
the writ after allowance thereof and demand
therefor, or
A person to whom a writ is directed, who ne-
glects or refuses to obey or make return of the
same according to the command thereof, or
makes false return thereof, or who, upon de-
mand made by or on behalf of the prisoner, re-
fuses to deliver to the person demanding,
within six (6) hours after the demand therefor,
a true copy of the warrant or order of commit-
ment
Amparo
Sec. 3 – (1) RTC of the place where the threat, act or
omission was committed or any of its elements oc-
curred, or (2) Sandiganbayan, the (3) Court of Appeals,
(4) the Supreme Court, or any justice of such courts.
Anywhere in the Philippines
Sec. 3 - On any day and at any time
Sec. 4 - exempt
Sec. 5 – Signed and verified
Sec. 6 – When on its face, it ought to be issued imme-
diately
Sec. 6 – Not later than 7 days from the date of its issu-
ance
Sec. 8 - In case the writ cannot be served personally
on the respondent, the rules on substituted service
shall apply.
Sec. 9 – Verified written return. The period to file can-
not be extended except on highly meritorious ground
Sec. 7 – 1. Clerk of court who refuses to issue the writ
after its allowance.
2. A deputized person who refuses to serve the same.
Penalty - Contempt without prejudice to other disci-
plinary actions.
Sec. 16 – 1. Respondent who refuses to make a return,
or who makes a false return; or
2. Any person who disobeys or resists a lawful process
or order of the court
Penalties: 1. Contempt. 2. Imprisonment.
3. Fine.
Habeas Data
Sec. 3 - RTC where the petitioner or respondent re-
sides, or that which has jurisdiction over the place
where the data or information is gathered, collected
or stored. It may also be filed with the SC or CA or
the Sandiganbayan when the action concerns public
data files of government offices. All at the option of
the petitioner.
Anywhere in the Philippines
Sec. 5 – Exemption only applies to an indigent peti-
tioner only
Sec. 6 – Verified written petition
Sec. 7 – When on its face, it ought to be issued im-
mediately. However, there should be service within
3 days.
Sec. 7 – Not later than 10 days from the date of its
issuance
Sec. 9 - In case the writ cannot be served personally
on the respondent, the rules on substituted service
shall apply.
Sec. 9 - Verified written return. – may be reasonable
extended by the court for justifiable grounds
Sec. 8 and 11 – Same with writ of amparo
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Writs of: Habeas Corpus Amparo Habeas Data

Penalties: (1) forfeit to the party aggrieved the
sum of P1000, to be recorded in a proper action;
(2) Contempt.
When defenses None None Sec. 12 – May be heard in chambers
may be heard
in chambers
Prohibited Sec. 11 – 1. Motion to dismiss; Sec. 13 – Same as in Writ of Amparo
pleadings and 2. Motion for extension of time to file return, opposi-
motions tion, affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders
or interim relief orders; and
12. Petition for certiorari, mandamus or prohibition
against any interlocutory order.
Effect of failure Sec.12 - In case the respondent fails to file a return, Sec. 14 - In case the respondent fails to file a return,
to file a return the court, justice or judge shall proceed to hear the the court, justice or judge shall proceed to hear the
petition ex parte. petition ex parte, granting the petitioner such relief
as the petition may warrant unless the court in its
discretion requires the petitioner to submit evi-
dence.
Summary Sec. 13 - The hearing on the petition shall be summary. Sec.15 - The hearing on the petition shall be sum-
Hearing However, the court, justice or judge may call for a pre- mary. However, the court, justice or judge may call
liminary conference to simplify the issues and deter- for a preliminary conference to simplify the issues
mine the possibility of obtaining stipulations and ad- and determine the possibility of obtaining stipula-
missions from the parties. The hearing shall be from tions and admissions from the parties.
day to day until completed and given the same priority
as petitions for habeas corpus.
Interim Reliefs Sec. 12 – 1. Unless for good cause shown, the Sec. 14 - Upon filing of the petition or at anytime be-
hearing is adjourned, in which event the court fore final judgment, the court, justice or judge may
shall make an order for the safe keeping of the grant any of the following reliefs:
person imprisoned or restrained as the nature (a) Temporary Protection Order. – The court, justice or
of the case requires; judge, upon motion or motu proprio, may order that
2. The court or judge must be satisfied that the the petitioner or the aggrieved party and any member
person’s illness is so grave that he cannot be of the immediate family be protected in a government
produced without any danger. agency or by an accredited person or private institu-
tion capable of keeping and securing their safety. If
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Writs of: Habeas Corpus Amparo Habeas Data

the petitioner is an organization, association or insti-
tution referred to in Section 3(c) of this Rule, the pro-
tection may be extended to the officers involved. The
Supreme Court shall accredit the persons and private
institutions that shall extend temporary protection to
the petitioner or the aggrieved party and any member
of the immediate family, in accordance with guide-
lines which it shall issue. The accredited persons and
private institutions shall comply with the rules and
conditions that may be imposed by the court, justice
or judge.

(b) Inspection Order. — The court, justice or judge,

upon verified motion and after due hearing, may or-
der any person in possession or control of a desig-
nated land or other property, to permit entry for the
purpose of inspecting, measuring, surveying, or pho-
tographing the property or any relevant object or op-
eration thereon. The motion shall state in detail the
place or places to be inspected. It shall be supported
by affidavits or testimonies of witnesses having per-
sonal knowledge of the enforced disappearance or
whereabouts of the aggrieved party. If the motion is
opposed on the ground of national security or of the
privileged nature of the information, the court, justice
or judge may conduct a hearing in chambers to deter-
mine the merit of the opposition. The movant must
show that the inspection order is necessary to estab-
lish the right of the aggrieved party alleged to be
threatened or violated. The inspection order shall
specify the person or persons authorized to make the
inspection and the date, time, place and manner of
making the inspection and may prescribe other condi-
tions to protect the constitutional rights of all parties.
The order shall expire five (5) days after the date of its
issuance, unless extended for justifiable reasons.

(c) Production Order. – The court, justice or judge,

upon verified motion and after due hearing, may or-
der any person in possession, custody or control of
any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, or ob-
jects in digitized or electronic form, which constitute

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Writs of: Habeas Corpus
Judgment Sec. 15 - When the court or judge has examined
into the cause of caption and restraint of the
prisoner, and is satisfied that he is unlawfully
imprisoned or restrained, he shall forthwith or-
der his discharge from confinement, but such
discharge shall not be effective until a copy of
the order has been served on the officer or per-
son detaining the prisoner. If the officer or per-
son detaining the prisoner does not desire to
appeal, the prisoner shall be forthwith released.
Appeal Sec. 15 in relation to Sec. 3 of Rule 41 and Sec.
39 of B.P. 129: 48 hours from notice of judg-
ment appealed from by ordinary appeal
Return of Ser-
vice
Archiving and
Revival of
cases
Amparo Habeas Data
or contain evidence relevant to the petition or the re-
turn, to produce and permit their inspection, copying
or photographing by or on behalf of the movant. The
motion may be opposed on the ground of national se-
curity or of the privileged nature of the information,
in which case the court, justice or judge may conduct
a hearing in chambers to determine the merit of the
opposition. The court, justice or judge shall prescribe
other conditions to protect the constitutional rights of
all the parties.
(d) Witness Protection Order. – The court, justice or
judge, upon motion or motu proprio, may refer the
witnesses to the Department of Justice for admission
to the Witness Protection, Security and Benefit Pro-
gram, pursuant to Republic Act No. 6981. The court,
justice or judge may also refer the witnesses to other
government agencies, or to accredited persons or pri-
vate institutions capable of keeping and securing their
safety.
Sec. 18 - The court shall render judgment within ten Sec. 16 – Same with Writ of Amparo with an addi-
(10) days from the time the petition is submitted for tion that: Upon its finality, the judgment shall be en-
decision. If the allegations in the petition are proven forced by the sheriff or any lawful officers as may be
by substantial evidence, the court shall grant the priv- designated by the court, justice or judge within five
ilege of the writ and such reliefs as may be proper and (5) working days.
appropriate; otherwise, the privilege shall be denied.
Sec. 19 - Any party may appeal from the final judg- Sec. 19 – Same as Writ of Amparo
ment or order to the Supreme Court under Rule 45. The appeal shall be given the same priority as in ha-
The appeal may raise questions of fact or law or both. beas corpus and amparo cases.
The period of appeal shall be 5 working days from the
date of notice of the adverse judgment. The appeal
shall be given the same priority as in habeas corpus
cases.
Sec. 17 - The officer who executed the final judg-
ment shall, within 3 days from its enforcement,
make a verified return to the court.
Sec. 20 - The court shall not dismiss the petition, but
shall archive it, if upon its determination it cannot pro-
ceed for a valid cause such as the failure of petitioner
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or witnesses to appear due to threats on their lives.
The petition shall be dismissed with prejudice upon
failure to prosecute the case after the lapse of two (2)
years from notice to the petitioner of the order archiv-
ing the case.
Institution of Sec. 21 - This Rule shall not preclude the filing of sep- Sec. 20 – Same as Writ of Amparo
separate ac- arate criminal, civil or administrative actions.
tions
Effect of filing Sec. 22 - When a criminal action has been com- Sec. 21 - Same as Writ of Amparo
criminal action menced, no separate petition for the writ shall be
filed. The reliefs under the writ shall be available by
motion in the criminal case.
Consolidation Sec. 23 - When a criminal action is filed subsequent to Sec. 22 - Same as Writ of Amparo
the filing of a petition for the writ, the latter shall be
consolidated with the criminal action.
When a criminal action and a separate civil action are
filed subsequent to a petition for a writ of amparo, the
latter shall be consolidated with the criminal action.
Substantive Sec. 24 - This Rule shall not diminish, increase or mod- Sec. 23 – Difference is that in Writ of Amparo, the
Rights ify substantive rights recognized and protected by the Constitution provides the law from which the sub-
Constitution. stantive rights exist
Suppletory ap- Rule 72, Sec. 2 – In the absence of special provi- Sec. 25 – The Rules of Court shall apply suppletorily Sec. 24 – Same as Writ of Amparo
plication of the sions, the rules provided for in ordinary actions insofar as it is not inconsistent with this Rule.
rules of court shall be, as far as practicable, applicable in spe-
cial proceedings.

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CHANGE OF NAME &
CORRECTION/CANCELLATION OF
ENTRIES IN THE CIVIL REGISTRY
RULE 103
Section 1. Venue. — A person desiring to change his name
shall present the petition to the Court of First Instance of the
province in which he resides, or, in the City of Manila, to the
Juvenile and Domestic Relations Court.
Section 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:
(a) That the petitioner has been a bona fide resident of the
province where the petition is filed for at least three (3) years
prior to the date of such filing;
(b) The cause for which the change of the petitioner's name
is sought;
(c) The name asked for.
Section 3. Order for hearing. — If the petition filed is suffi-
cient in form and substance, the court, by an order reciting
the purpose of the petition, shall fix a date and place for the
hearing thereof, and shall direct that a copy of the order be
published before the hearing at least once a week for three
(3) successive weeks in some newspaper of general circula-
tion published in the province, as the court shall deem best.
The date set for the hearing shall not be within thirty (30)
days prior to an election nor within four (4) month after the
last publication of the notice.
Section 4. Hearing. — Any interested person may appear at
the hearing and oppose the petition. The Solicitor General or
the proper provincial or city fiscal shall appear on behalf of
the Government of the Republic.
Section 5. Judgment. — Upon satisfactory proof in open
court on the date fixed in the order that such order has been
published as directed and that the allegations of the petition
are true, the court shall, if proper and reasonable cause ap-
pears for changing the name of the petitioner, adjudge that
such name be changed in accordance with the prayer of the
petition.
Section 6. Service of judgment. — Judgments or orders ren-
dered in connection with this rule shall be furnished the civil
registrar of the municipality or city where the court issuing
the same is situated, who shall forthwith enter the same in
the civil register.
RULE 108
Section 1. Who may file petition. — Any person interested
in any act, event, order or decree concerning the civil status
of persons which has been recorded in the civil register, may
file a verified petition for the cancellation or correction of
any entry relating thereto, with the Court of First Instance of
the province where the corresponding civil registry is lo-
cated.
Section 2. Entries subject to cancellation or correction. —
Upon good and valid grounds, the following entries in the
civil register may be cancelled or corrected: (a) births: (b)
marriage; (c) deaths; (d) legal separations; (e) judgments of
annulments of marriage; (f) judgments declaring marriages
void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k)
election, loss or recovery of citizenship; (l) civil interdiction;
(m) judicial determination of filiation; (n) voluntary emanci-
pation of a minor; and (o) changes of name.
Section 3. 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 af-
fected thereby shall be made parties to the proceeding.
Section 4. Notice and publication. — Upon the filing of the
petition, the court shall, by an order, fix the time and place
for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition. The
court shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general
circulation in the province.
Section 5. Opposition. — The civil registrar and any person
having or claiming any interest under the entry whose can-
cellation or correction is sought may, within fifteen (15) days
from notice of the petition, or from the last date of publica-
tion of such notice, file his opposition thereto.
Section 6. Expediting proceedings. — The court in which the
proceeding is brought may make orders expediting the pro-
ceedings, and may also grant preliminary injunction for the
preservation of the rights of the parties pending such pro-
ceedings.
Section 7. Order. — After hearing, the court may either dis-
miss the petition or issue an order granting the cancellation
or correction prayed for. In either case, a certified copy of
the judgment shall be served upon the civil registrar con-
cerned who shall annotated the same in his record.
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CIVIL CODE, ART. 412
Art. 412. No entry in a civil register shall be changed or cor-
rected, without a judicial order.
*For the full texts of RA 9048 and 10172, please refer to the
compilation of laws.
Cancellation or Correction of Entries in the Civil Registry
The judicial proceeding under Rule 108 of the Rules of Court
may either be summary or adverary in character. It is
summary when the correction sought to be made is mrely
clerical (except first name which is governed by an
administrative proceeding under RA 9048 as amended) but
where the rectification affects the civil status, citizenship or
nationality of a party, it is deemed to be substantial and he
procedure to be adopted is adversary.
Two methods:
1. Administrative
2. Judicial
Administrative:
Sec. 4, RA 9048 outlines the grounds for change for first
name or nickname, to wit:
1. The petitioner finds the first name or nickname to be ri-
diculous, tainted with dishonor or extremely difficult to
write or pronounce.
2. The new first name or nickname has been habitually
and continuously used by the petitioner and he has
been publicly known by that by that first name or nick-
name in the community: or
3. The change will avoid confusion.
Grounds for denial
Sec. 7 of the abovementioned law, on the other hand, states
the grounds for denial:
1. The error is not clerical or typographical;
2. The correction of an entry or entries in the civil register
is substantial or controversial as it affects the civil status
of a person; or
3. The basis used in changing the first name or nickname of
a person does not fall under Section 4.
The civil registrar general shall immediately notify the city or
municipal civil registrar or the consul general of the action
taken on the decision. Upon receipt of the notice thereof, the
city or municipal civil registrar or the consul general shall no-
tify the petitioner of such action.
The petitioner may seek reconsideration with the civil regis-
trar general or file the appropriate petition with the proper
court.
If the civil registrar general fails to exercise his power to im-
pugn the decision of the city or municipal civil registrar or of
the consul general within the period prescribed herein, such
decision shall become final and executory.
Where the petition is denied by the city or municipal civil reg-
istrar or the consul general, the petitioner may either appeal
the decision to the civil registrar general or file the appropri-
ate petition with the proper court.
Judicial:
Examples of where proper:
1. Change of surname, even if clerical error and will not
affect person’s status, citizenship, or filiation (citing
Batbatan v. Office of the Local Civil Registrar, 1982)
2. Affects identity of person’s parents (citing Republic v.
Belmonte, 1988)
3. Civil status or nationality are affected (citing Yu v. Civil
Registrar of Manila, 1983)
Definition of clerical error [citing Yu v. Civil Registrar of Ma-
nila, 1983[:
1. Visible to the eye
Or obvious to the understanding
2. Error by clerk or transcriber
3. Mistake in copying or writing
4. Harmless or innocuous change
Misspelled
Misstatement of parties’ occupation
Substantial errors may also be corrected through Rule 108 if
there is a “full-dress” proceeding in accordance with the es-
tablished procedure.
Requisites:
1. Verified petition
2. Impleading civil registrar and interested persons.
CHANGE OF NAME [RULE 103, RULES OF COURT]
Nature of the petition for change of name.
A change of name is a special proceeding to establish the sta-
tus of a person involving his relation with others, that is, his
legal position in, or with regard to, the rest of the commu-
nity.
It is an action in rem. A decision binds not only the parties
thereto but the whole world. An in rem proceeding is vali-
dated through publication. Publication is notice to the whole
world that the proceeding has for its object to bar indefi-
nitely all who might be minded to make an objection. [Re-
public v. Carlito I., et al]
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SPECIAL PROCEEDINGS | B2015 ACADEMICS COMMITTEE
CANCELLATION OR CORRECTION OF ENTRIES IN THE
CIVIL REGISTRY [RULE 108, RULES OF COURT]
Who the parties must be in the proceedings
When cancellation or correction of an entry in the civil regis-
ter 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
How correction of entries effected
(1) Without judicial authority (administrative proceeding
under RA 9048 as amended)
What may be corrected:
(a) Clerical or typographical errors in the civil regis-
ter; or
(b) Change of first name or nickname
PROVIDED, that the petition may be denied if:
(i) the error is not clerical or typographical; or
(ii) it affects the civil status of a person
Where filed: With the Local Civil Registrar's Office of
the city or municipality where the record sought to be
corrected is kept. Where a citizen is residing abroad,
the petition shall be filed with the nearest Philippine
Consukate.
(2) Through judicial proceeding [under Rule 108]
What may be corrected: Clerical errors AND substan-
tial errors, PROVIDED that for substantial errors, the
proceeding must be adversarial. This means, among
others, that the petition must be verified, should im-
plead the civil registrar and all persons who have or
claim any interest which would be affected thereby
[Lee v. CA].
Where filed: The petition may be filed with the local
civil registry office of the city or municipality where
the record being sought to be corrected or changed is
kept.
In case the petitioner has already migrated to another place
in the country and it would not be practical for such party,
interms of transportation expenses, time and effort to ap-
pear in person before the local civil registrar keeping the doc-
uments to be corrected or changed, the petition may be
filed, in person, with the local civil registrar of the place
where the interested party is presently residing or domiciled.
The two (2) local civil registrars concerned will then com-
municate to facilitate the processing of the petition.
Citizens of the Philippines who are presently residing or dom-
iciled in foreign countries may file their petition, in person,
with the nearest Philippine Consulates.
CLERICAL ERROR ACT
Concept of Clerical Error [Sec. 2, par. 3, RA 9048 as amended
by RA 10172]
‘Clerical or typographical error’ has the following elements:
1. There is a mistake committed in the performance of
clerical work in writing, copying, transcribing or typing
an entry in the civil register;
2. The mistake is harmless and innocuous (i.e. misspelled
name or misspelled place of birth, mistake in the entry
of day and month in the date of birth or the sex of the
person),
3. It is visible to the eyes OR obvious to the understanding;
4. It can be corrected or changed only by reference to
other existing record or records
5. The correction must not involve the change of
nationality, age, or status of the petitioner.
Who may file the petition
Any person having direct and personal interest in the correc-
tion of a clerical or typographical error in an entry and/or
change of first name or nickname in the civil register may file
the verified petition in person
QUESTIONS
Change of Name
Q: Can a change of name be made through an
administrative proceeding?
A: Yes, but only as to matters relating to change of first
name and nickname. Change of surname constitutes a
substantial correction and may only be changed
pursuant to Rule 103 of the Rules of Court
Q: Differentiate Rule 103 of the Rules of Court from RA
9048 as amended by RA 10172
A: As to the kind of proceeding: Rule 103 is judicial while
RA 9048 as amended is administrative.
As to subject matter: Rule 103 refers to change of
one's name while RA 9048 as amended refers to
change of first name and nickname and
correction/cancellation of civil entries (only
typographical or clerical errors)
Q: Is change of name a matter of right?
A: It is not a matter of right. The State has an interest in
the names borne by individuals and entities for
purposes of identification, and that a change of name
is a privilege and not a right, so that before a person
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SPECIAL PROCEEDINGS | B2015 ACADEMICS COMMITTEE
can be authorized to change his name given him either
in his certificate of birth or civil registry, he must show
proper or reasonable cause, or any compelling reason
which may justify such change [In re: Petition of
Carulasan Wang]
Q: What are the requisites of a valid publication?
A: Under Section 3, Rule 103 of the Rules, publication is
valid if the following requisites concur:
(1) the petition and the copy of the order indicating
the date and place for the 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, as
the court shall deem best. Another validating
ingeredient relates to the caveat against the
petition being heard within 30 days prior to an
election or within four months after the last
publication of the notice of Hearing [Republic v.
Bolante]
Q: What are the consequences of a grant of change of
name?
A: A mere change of name would NOT:
(1) Cause a change in one's existing family relations
(2) Create new family rights and duties
---where NONE exist before.
(3) Affect a person's legal capacity, civil status or
citizenship
What would be altered is the word or group of words by
which he is identified and distinguish from the rest of his
fellow men [Ang Chay v. Republic].
A change of name granted by the court affects only the
petitioner.
Clerical Error Act
Q: Does the clerical error act apply to change of full
name?
A: No. Change of full name is covered by Rule 103. The
act is limited to clerical or typographical erros and
change of first name or nickname.
Q: Can the petition be availed more than once? [Sec. 3,
RA 9048 as amended]
A: No. All petition for the correction of clerical or
typographical errors and/or change of first names or
nicknames may be availed of only once.
Q: Does the civil registrar general have the power to
impugn the decision granting a petition? [Sec. 7, RA
9048 as amended]
A: Yes. The civil registrar general shall, within 10 working
days from receipt of the decision granting a petition,
exercise the power to impugn such decision by way of
an objection based on the following grounds:
(1) The error is not clerical or typographical
(2) The correction of an entry or entries in the civil
register is substantial or controversial as it affects
the civil status of a person' or
(3) The basis used in changing the first name or
nickname of a person does not fall under Section
4
The civil registrar general shall immediately notify the
city or municipal civil registrar or consul general of the
action taken on the decision. Upon receipt of the
notice thereof, the city or municipal civil registrar or
the consul general shall notify the petitioner of such
action. The petitioner may seek reconsideration with
the civil registrar general or file the appropriate
petition with the proper court.
If the civil registrar general fails to exercise his power
to impugn the decision of the city or municipal
registrar or of the consul general within the period
prescribed herein, such decision shall become final
and executory.
Where the petition is denied by the city or municipal
civil registrar or the consul general, the petition may
either appeal the decision to the civil registrar general
or file the appropriate petition with the proper court.
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COMPARATIVE TABLE OF RULE 103, RULE 108, AND RA 9048
Rule 103
Name of Law Change of Name
Subject Matter Change of full name (substantial
corrections i.e. affects civil status of
persons)
Who may File A person desiring to change his
name. (Sec.1)
Venue RTC of the province in which
petitioner resides for 3 years prior to
filing or, in the City of Manila, to the
Juvenile and Domestic Relations
Court
Contents of Petition 1. That the petitioner has been a
bona fide resident of the
province where the petition is
filed for at least three years
prior to the date of such filing;
2. The cause for which the change
of the petitioner's name is
sought;
3. The name asked for. (Sec. 2)
Rule 108
Cancellation/Correction of
Entries in the Civil Registry
Change or corrections in the civil
entries (substantial corrections
i.e. affects civil status of
persons)
Any person interested in any act,
event ,order or decree
concerning the civil status of
persons which has been
recorded in the civil register
(Sec. 1)
RTC of city or province where
the corresponding civil registry
is located
a. That the petitioner has
been a bona fide resident of
the province where the
petition is filed for at least
three years prior to the date
of such filing;
b. The cause for which the
change of the petitioner's
name is sought;
c. The name asked for. (Sec. 2)
RA 9048, as amended by RA
10172
Clerical Error Act
Change of first name and
nickname and civil entries (only
typographical or clerical errors
i.e. does not affect civil status of
persons)
Any person having direct and
personal interest in the
correction of a clerical or
typographical error in an entry
and/or change of first name or
nickname (Sec. 3)
1. Local civil registry office of
the city or municipality
where the record being
sought to be corrected or
changed is kept
2. Local civil registrar of the
place where the interested
party is presently residing or
domiciled
Philippine Consulates
(a) Facts necessary to establish
the merits of the petition
(b) Particular erroneous entry
or entries, which are sought to
be corrected and/or the change
sought to be made.
The petition shall be supported
with the following documents
1. A certified true machine
copy of the certificate or of
the page of the registry
book containing the entry
or entries sought to be
corrected or changed;
2. At least two public or
private documents showing
the correct entry or entries
upon which the correction
or change shall be based;
and
3. Other documents which the
petitioner or the city or
municipal civil registrar or
the consul general may
consider relevant and
necessary for the approval
of the petition.
Note: Correction of erroneous
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SPECIAL PROCEEDINGS | B2015 ACADEMICS COMMITTEE
Rule 103
Grounds 1. name is ridiculous, tainted with
dishonor or extremely difficult to
write or pronounce
2. Consequence of change of status
3. Necessity to avoid confusion
4. Having continuously used and
been known since childhood by a
Filipino name, unaware of her
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
What kind of Judicial Proceeding
proceeding
What to file File a signed and verified petition
Rule 108
Upon good and valid grounds,
the following entries in the civil
register may be cancelled or
corrected:
a. births:
b. marriage;
c. deaths;
d. legal separations;
e. judgments of annulments
of marriage; (f) judgments
declaring marriages void
from the beginning;
f. legitimations;
g. adoptions;
h. acknowledgments of
natural children;
i. naturalization;
j. election, loss or recovery of
citizenship;
k. civil interdiction;
l. judicial determination of
filiation;
m. voluntary emancipation of
a minor; and
n. changes of name.
Summary proceeding
Note: This can be converted into
an adversarial proceeding if
there are substantial changes
and affect the status of an
individual.
File a verified petition for the
cancellation or correction of any
entry
RA 9048, as amended by RA
10172
entry concerning the date of
birth or the sex of a person shall
be accompanied by earliest
school record or earliest school
documents such as, but not
limited to, medical records,
baptismal certificate and other
documents issued by
authorities
Change of gender shall be
accompanied by a certification
issued by an accredited
government physician attesting
to the fact that the petitioner
has not undergone sex change
or sex transplant.
1. The petitioner finds the first
name or nickname to be
ridiculous, tainted with
dishonor or extremely
difficult to write or
pronounce
2. The new first name or
nickname has been
habitually and continuously
used by the petitioner and
he has been publicly known
by that by that first name or
nickname in the community
3. The change will avoid
confusion (Section 4).
Administrative Proceeding
File an affidavit
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Rule 103 Rule 108 RA 9048, as amended by RA

10172
Notice and Publication Consecutive weeks in some At least once a week for three at least once a week for two (2)
newspaper circulation (notice of consecutive weeks in some consecutive weeks in a
hearing) newspaper of general newspaper of general
circulation (notice of hearing) circulation.
Posting No posting No posting Duty of the civil registrar or
Consul to post the petition in a
conspicuous place for 10
consecutive days

Who participates on The Solicitor General or the proper Civil Registrar City or Municipal Civil Registrar
the part of the provincial or city fiscal shall appear or Consul General
government on behalf of the Government of the
Republic
Where to appeal Appeal decision with the Court of Appeal decision with the Court Appeal decision to the Civil
Appeals of Appeals Registrar General (head of
NCSO)

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JURISPRUDENCE
REPUBLIC V. CARLITO I. KHO
SUMMARY: Carlito Kho (Kho) applied for the correction of
various details in his birth certificate, the birth certificate of
his children and his marriage certificate. The OSG opposed
saying that the changes sought were substantial in nature,
they could only be granted through an adversarial proceed-
ing in which indispensable parties, such as Marivel and re-
spondents’ parents, should have been notified or impleaded.
The TC granted the corrections and affirmed by the CA and
SC saying that the changes sought are substantial and nature
and there’s a need to notify or implead indispensable parties
but these was satisfied by the publication of the order of
hearing because a petition for correction is an action in rem,
an action against a thing and not against a person. It is the
publication of such notice that brings in the whole world as
a party in the case and vests the court with jurisdiction to
hear and decide it. As long as Rule 108 was followed.
DOCTRINE:
• The publication of the order of hearing under Section 4 of
Rule 108 cured the failure to implead an indispensable
party.
• A petition for correction is an action in rem, an action
against a thing and not against a person. The decision on
the petition binds not only the parties thereto but the
whole world. An in rem proceeding is validated essen-
tially through publication. Publication is notice to the
whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objec-
tion of any sort against the right sought to be established.
It is the publication of such notice that brings in the whole
world as a party in the case and vests the court with juris-
diction to hear and decide it.
• The purpose precisely of Section 4, Rule 108 is to bind the
whole world to the subsequent judgment on the petition.
The sweep of the decision would cover even parties who
should have been impleaded under Section 3, Rule 108,
but were inadvertently left out.
The cancellation or correction of entries involving
changes of name falls under letter "o" of Section 2 of Rule
108 and not only under Rule 103.
REPUBLIC V. TRINIDAD CAPOTE
SUMMARY: Trinidad Capote, as court-appointed guardian ad
litem, filed a petition for change of name of her 16-year old
ward from Giovanni N. Gallamaso to Giovanni Nadores. The
RTC ordered: (a) publication of the petition, (b) that the local
civil registrar be notified, and (c) that a copy of petition be
sent to the OSG. The OSG did not oppose the petition and
the motion to present evidence ex parte. RTC granted the
petition for change of name. Republic, through OSG, ap-
pealed, arguing that the petition should not have been sum-
mary in nature. CA said that the proceedings were suffi-
ciently adversarial. It affirmed RTC. In the SC, Republic argues
that there was non-joinder of indispensable parties. SC disa-
greed and affirmed the CA. SC held that the publication in a
newspaper of general circulation was sufficient notice to all
interested parties and to the whole world.
DOCTRINE: Unlike petitions for the cancellation or correction
of clerical errors in entries in the civil registry under Rule 108
ROC, a petition for change of name under Rule 103 cannot
be decided through a summary proceeding.
RATIO: There is a significant connection of a person’s name
to his identity, his status in relation to his parents and his
successional rights as a legitimate or illegitimate child. For
sure, these matters should not be taken lightly as to deprive
those who may, in any way, be affected by the right to pre-
sent evidence in favor of or against such change.
IN RE PETITION FOR CHANGE OF NAME (JULIAN
CARULASAN)
SUMMARY: Julian Lin Carulasan Wang was born in Cebu. His
family plans to move to Singapore and sought to change his
name based on the ff reasons:
The following were advanced as the reasons for the change
of name:
1. The parents they anticipate that Julian will be discrimi-
nated against in Singapore, they do not carry middle
names and Julian’s name carries a middle name.
2. Julian and his sister might ask whether they are brother
and sister since they have different surnames.
3. Carulasan sounds funny in Singapore's Mandarin language
since they do not have the letter "R" but if there is, they
pronounce it as "L."
The SC denied the petition to drop the middle name. In this
case, the only reason for the dropping his middle name is
convenience. How such change of name would make his in-
tegration into Singaporean society easier is not clearly estab-
lished. That the continued use of his middle name would
cause confusion and difficulty does not constitute proper
and reasonable cause to drop it from his registered complete
name. In addition, petitioner is only a minor. Considering the
nebulous foundation on which his petition is based, 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. As he is
of tender age, he may not yet understand and appreciate the
value of the change of his name and granting of the same at
this point may just prejudice him in his rights under our laws.
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DOCTRINE: The State has an interest in the names borne by
individuals and entities for purposes of identification, and
that a change of name is a privilege and not a right, so that
before a person can be authorized to change his name given
him either in his certificate of birth or civil registry, he must
show proper or reasonable cause, or any compelling reason
which may justify such change. Otherwise, the request
should be denied.
The touchstone for the grant of a change of name is that
there be 'proper and reasonable cause' for which the change
is sought. To justify a request for change of name, petitioner
must show not only some proper or compelling reason there-
fore but also that he will be prejudiced by the use of his true
and official name. Among the grounds for change of name
which have been held valid are:
(a) when the name is ridiculous, dishonorable or extremely
difficult to write or pronounce;
(b) when the change results as a legal consequence, as in le-
gitimation;
(c) when the change will avoid confusion;
(d) when one has continuously used and been known since
childhood by a Filipino name, and was unaware of alien
parentage;
(e) a sincere desire to adopt a Filipino name to erase signs of
former alienage, all in good faith and without prejudicing
anybody; and
(f) when the surname causes embarrassment and there is no
showing that the desired change of name was for a fraud-
ulent purpose or that the change of name would preju-
dice public interest.
In granting or denying petitions for change of name, the
question of proper and reasonable cause is left to the sound
discretion of the court.
The petition before us is unlike other petitions for change of
name, as it does not simply seek to change the name of the
minor and adopt another, but instead seeks to drop the mid-
dle name altogether. Does the law allow one to drop the mid-
dle name from his registered name? We have to answer in
the negative. (Quoted verbatim because I don’t know if this
is a fixed rule)
A name is said to have the following characteristics:
(1) It is absolute, intended to protect the individual from be-
ing confused with others.
(2) It is obligatory in certain respects, for nobody can be with-
out a name.
(3) It is fixed, unchangeable, or immutable, at least at the
start, and may be changed only for good cause and by ju-
dicial proceedings.
(4) It is outside the commerce of man, and, therefore, inal-
ienable and intransmissible by act inter vivos or mortis
causa.
(5) It is imprescriptible.
Middle names serve to identify the maternal lineage or filia-
tion of a person as well as further distinguish him from others
who may have the same given name and surname.
MARCELO LEE V. CA
SUMMARY: This case originates from petitions for the can-
cellation and/or correction of entries of birth records, as
sought by the children of Lee Tek Sheng with Keh Shiok
Cheng (Rita Lee et al.) Lee Tek Sheng and Keh Shiok Cheng
were married in China in 1931. In October of 1948, the hus-
band facilitated the arrival of Tiu Chuan, a young girl from
China, purportedly their new housemaid; in actuality, she im-
mediately became his mistress. The entries in the birth rec-
ords of children that resulted from the illicit relations were
falsified by the husband, making it appear that the wife was
the mother. In any case, it was the mistress who raised her
children. All of them lived in the same compound. When the
wife died, the husband insisted on the inclusion in her obitu-
ary of the names of the children in the first family, as well as
his children with his mistress. Acting on their suspicion, the
children of the wife requested that the NBI conduct an inves-
tigation. The report of the investigation showed that the en-
tries in the birth records of the children with the mistress
were falsified. This was based on discrepancies between the
birth records and hospital records as regards the age of the
mother, the age gaps between the children, and their birth
order. If the birth records are to be believed, the wife gave
birth to 8 children in 10 years by the time she was 48. The
children of the wife petitioned for the cancellation and/or
correction of birth record entries of the mistress’ children,
particularly that the name of the mother be changed. The
RTC, CA, and SC all found for the children of the wife. The SC
found that
DOCTRINE: A petition for the cancellation or correction of
entries in the civil registry is proper where a father falsifies
the birth records of the children of his mistress to purport
that they were born of his wife.
Substantial errors in civil register entries may be corrected in
an appropriate adversary proceeding.
There is an appropriate adversary proceeding under Rule 108
when its procedural requirements are complied with.
Procedural requirements of Rule 108:
1) Impleading of proper parties:
a. Civil registrar
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b. And all persons who have or claim any interest that
would be affected
2) Court order:
a. Fixing time and place for hearing
3) Reasonable notice:
a. To the persons named in the petition
4) Publication:
a. Once a week for 3 consecutive weeks
b. General circulation in the province.
5) Opposition, if so elected:
a. (same as proper parties)
For civil registry entries, there are 2 remedies: appropriate
adversary proceedings under Rule 108, and summary pro-
ceedings under RA 9048.
Civil status, sex, and citizenship are entries dealt with by Rule
108 Appropriate Adversary Proceedings.
Clerical errors visible to the eye or obvious to the under-
standing are contemplated by summary proceedings under
RA 9048.
The holdings in Ty Kong Tin v. Republic and Chue Wee et al.
v. Republic as to the limitation of Rule 108 to non-substan-
tive entries has been abandoned, as Art. 412 does not specify
which entries need judicial pronouncement. RA 9048 reme-
dies this confusion, and consequently, also shows what en-
tries are within the ambit of Rule 108.
BARCO V. CA
SUMMARY: Nadina filed a Petition for Correction of Entries
in the Birth Certificate of her daughter, June, with the RTC,
alleging that Gustilo, and not Maravilla, was the real father.
She sought that the full name be made June Salvacion G.
Gustilo and the name of the fater be changed to Armando
Gustilo. Maravilla gave his consent. The RTC first set the case
for hearing and directed its publication; then it granted
Nadina’s petition. Jose Vicente Gustilo and Barco filed a Pe-
tition for the Annulment of the RTC Order and Complaint-in-
Intervention, respectively, with the CA, but both were de-
nied. The SC ruled that the RTC has jurisdiction over Barco
and other indispensable parties and the cause of action. The
actual publication of the RTC Order conferred jurisdiction
upon the RTC to try and decide the case.
DOCTRINE: A petition for correction is an action in rem, an
action against a thing and not against a person. The decision
on the petition binds not only the parties thereto but the
whole world. An in rem proceeding is validated essentially
through publication. Publication is notice to the whole world
that the proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any sort
against the right sought to be established. It brings in the
whole world as a party in the case and vests the court with
jurisdiction to hear and decide it.
RA 9048 (2001) has effectively changed the nature of a pro-
ceeding under Rule 108. Under RA 9048, clerical or typo-
graphical errors and change of first name or nickname may
now be corrected or changed by the concerned city or mu-
nicipal registrar or consul general, without need of any judi-
cial order. The effect is to remove from the ambit of Rule 108
the correction or changing of such errors in the entries of the
civil register. Hence, what is left for the scope of operation of
Rule 108 are substantial changes and corrections in entries
of the civil register. RA 9048 now embodies that summary
procedure while Rule 108 is that appropriate adversary pro-
ceeding.
SILVERIO VS. REPUBLIC
SUMMARY: Silverio, born a male but has undergone sex re-
assignment surger, sought to change his name from Rommel
to Mely and his sex from male to female.
DOCTRINE: RA 9048 does not sanction a change of first name
on the ground of sex reassignment. The petition in the RTC,
in so far as it prayed for the change of Silverio’s first name,
was not within that court’s primary jurisdiction as the peti-
tion should have been filed with the local civil registrar con-
cerned, assuming it could be legally done. It was an improper
remedy because the proper remedy was administrative, that
provided under RA 9048. It was also filed in the wrong venue
as the proper venue was in the Office of the Civil Registrar of
Manila where his birth certificate is kept. Under RA 9048, a
correction in the civil registry involving the change of sex is
not a mere clerical or typographical error. It is a substantial
change for which Rule 108 of the Rules of Court is applicable.
Under the Civil Register Law, a birth certificate is a historical
record of the facts as they existed at the time of birth. Thus,
the sex of a person is determined at birth, visually done by
the birth attendant (the physician or midwife) by examining
the genitals of the infant. Since there is no law recognizing
sex reassignment, the determination of a person’s sex made
at the time of birth, if not attended by error, is immutable.
REPUBLIC V. CAGANDAHAN
SUMMARY: Jennifer Cagandahan is seeking to have the en-
tries of her name and sex in her birth certificate to be
changed. Jennifer is suffering from congenital adrenal hyper-
plasia (CAH). She alleged that, for all interests and appear-
ances, as well as in mind and emotion, she had become a
male person. Thus, she prayed that her birth certificate be
corrected such that her gender be changed from female to
male and her first name be changed from Jennifer to Jeff.
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DOCTRINE: There is substantial compliance with the rule
that the Local Civil Registrar should be named an indispensa-
ble party to cases under Rules 103 and 108 if he is served a
copy of the petition.
In the case of intersex, the determining factor in the inter-
sex's gender classification would be what the individual, hav-
ing reached the age of majority, with good reason thinks of
his or her sex. Sexual development in cases of intersex per-
sons makes the gender classification at birth inconclusive. It
is at maturity that the gender of such persons is fixed.
ALBA V. COURT OF APPEALS
SUMMARY: Armi sought to annul the decision of the RTC of
Manila directing the cancellation of certain entries in the
birth certificate of her son referring to Rosendo Herrera as
the father, who also instituted said cancellation. She alleged
that, since notice was not served upon her, the RTC lacked
jurisdiction, and, since Rosendo knew of her address, there
was extrinsic fraud. The CA and the SC ruled that (1) the pub-
lication of the order of hearing ordered by the RTC was suffi-
cient since the action is one in rem, (2) extrinsic fraud was
not proven, and (3) even on the merits, the case must fail.
DOCTRINE: Petitions directed against the “thing” itself or the
res, which concerns the status of a person, like a petition for
adoption, annulment of marriage, or correction of entries in
the birth certificate, as in the instant case, are actions in rem.
In an action in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide
the case. In a proceeding in rem or quasi in rem, jurisdiction
over the person of the defendant is not a prerequisite to con-
fer jurisdiction on the court, provided that the latter has ju-
risdiction over the res. Jurisdiction over the res is acquired
either (a) by the seizure of the property under legal process,
whereby it is brought into actual custody of the law; or (b) as
a result of the institution of legal proceedings, in which the
power of the court is recognized and made effective. The ser-
vice of summons or notice to the defendant is not for the
purpose of vesting the court with jurisdiction but merely for
satisfying the due process requirements.
JUDICIAL APPROVAL OF VOLUNTARY RECOGNI-
TION OF MINOR CHILDREN
RULE 105
Section 1. Venue. — Where judicial approval of a voluntary
recognition of a minor natural child is required, such child or
his parents shall obtain the same by filing a petition to that
effect with the Court of First Instance of the province in
which the child resides. In the City of Manila, the petition
shall be filed in the Juvenile and Domestic Relations Court.
Section 2. Contents of petition. — The petition for judicial
approval of a voluntary recognition of a minor natural child
shall contain the following allegations:
(a) The jurisdictional facts;
(b) The names and residences of the parents who acknowl-
edged the child, or of either of them, and their compulsory
heirs, and the person or persons with whom the child lives;
(c) The fact that the recognition made by the parent or par-
ents took place in a statement before a court of record or in
an authentic writing, copy of the statement or writing being
attached to the petition.
Section 3. Order for hearing. — Upon the filing of the peti-
tion, the court, by an order reciting the purpose of the same,
shall fix the date and place for the hearing thereof, which
date shall not be more than six (6) months after the entry of
the order, and shall, moreover, cause a copy of the order to
be served personally or by mail upon the interested parties,
and published once a week for three (3) consecutive weeks,
in a newspaper or newspaper of general circulation in the
province.
Section 4. Opposition. — Any interested party must, within
fifteen (15) days from the service, or from the last date of
publication, of the order referred to in the next preceding
section, file his opposition to the petition, stating the
grounds or reasons therefor.
Section 5. Judgment. — If, from the evidence presented dur-
ing the hearing, the court is satisfied that the recognition of
the minor natural child was willingly and voluntarily made by
the parent or parents concerned, and that the recognition is
for the best interest of the child, it shall render judgment
granting judicial approval of such recognition.
Section 6. Service of judgment upon civil registrar. — A copy
of the judgment rendered in accordance with the preceding
section shall be served upon the civil registrar whose duty it
shall be to enter the same in the register.
FAMILY CODE, ARTS. 172, 173, AND 175
Art. 172. The filiation of legitimate children is established by
any of the following:
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(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the par-
ent concerned.
In the absence of the foregoing evidence, the legitimate fili-
ation shall be proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and spe-
cial laws.
Art. 173. The action to claim legitimacy may be brought by
the child during his or her lifetime and shall be transmitted
to the heirs should the child die during minority or in a state
of insanity. In these cases, the heirs shall have a period of five
years within which to institute the action.
Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as legiti-
mate children.
The action must be brought within the same period specified
in Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent.
Meaning of Voluntary Recognition
It is an admission of the fact of paternity or maternity by the
presumed parent, expressed in the form prescribed by the
Civil Code. Its essence lies in the avowal of the parent that
the child is his; the formality is added to make the admission
incontestable, in view of its consequences. [Gapusan-Chua v.
CA]
QUESTIONS
Q: With the effectivity of the Family Coe, what changes
were made re: judicial approval of voluntary
recognition of minors?
A: Article 172 of the Family Code provides that filiation of
legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or
a final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument
and signed by the parent concerned.
In the absence of the foregoing evidence, the
legitimate filiation shall be proved by:
(1) The open and continuous possession of the status
of a legitimate child; or
(2) Any other means allowed by the Rules of Court and
special laws.
In effect:
Judicial approval of voluntary recognition is required
only where filiation is proved by (a) open and
continuous possession of status of a legitimate child
or (2) any other means allowed by the Rules of Court
and special laws [Gono-Javier v. CA]
JURISPRUDENCE
SOTENIA GONO-JAVIER, ET AL. V. CA
SUMMARY: Juan Casocot, the alleged grandfather of Sotenia
Gono-Javier and other petitioners, owned 5 parcels of land
in Nasipit, Agusan. Sotenia and co-petitioners filed an action
for the recovery of ownership and possession of the 5 parcels
of land which they claimed were merely held in trust for
them by the private respondents, who were Juan Casocot’s
nephews and nieces (one respondent was a grandnephew
and the other is a buyer of a parcel of land). Sotenia and co-
petitioners averred that they were the children of deceased
Catalino Gono, an acknowledged natural child of Juan Caso-
cot who, by intestate succession, should be held to be the
owners of the property. The trial court, ruling in favor of So-
tenia and co-petitioners, declared Catalino Gono to be the
acknowledged natural child of Juan Casocot because of a
statement in a deed of donation which Juan Casocot made in
favor of Eugenia Gonzales, widow of Catalino Gono, to the
effect that among the reasons for making the donation was
the fact that the done “is the surviving spouse of my son had
with my common law wife.” The CA reversed the RTC. The SC
upheld the findings of CA. The SC held that the mere posses-
sion of the status of a child does not itself constitute an ac-
knowledgment; it is only a ground for the child to compel, by
judicial action, recognition by his assumed parent.
DOCTRINE: The filiation of illegitimate children, like legiti-
mate children, is established by: (1) record of birth appearing
in the civil register or a final judgment; or (2) an admission of
legitimate filiation in a public document or a private hand-
written document and signed by the parent concerned. In
the absence thereof, filiation shall be proved by (1) the open
and continuous possession of the status of a legitimate child;
or (2) any other means allowed by the Rules of Court and
special laws. The due recognition of an illegitimate child in a
record of birth, a will, a statement before a court of record,
or an authentic writing is, in itself a consummated act of ac-
knowledgment of a child, and no further court action is re-
quired.
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Judicial approval of voluntary recognition is required only
where filiation is proved by (a) open and continuous posses-
sion of status of a legitimate child or (2) any other means al-
lowed by the Rules of Court and special laws.
GAPUSAN-CHUA V. COURT OF APPEALS
SUMMARY: Felisa Gapusan Parcon died intestate and with-
out legitimate issue. She was survived by her husband, Pros-
pero Parcon, and three sisters and a nephew. Her husband
and other relatives did not move to settle her estate judi-
cially. Ligaya Gapusan-Chua, claiming to be an acknowledged
natural daughter of the decedent, instituted judicial pro-
ceedings for the settlement of the decedent’s estate. Ini-
tially, Ligaya Gapusan-Chua was appointed Special Admin-
istratix while the hearing on Ligaya’s claimed filiation was on-
going. The probate court ruled in favor of Ligaya and ap-
pointed her as the regular administratix after finding that
Ligaya was the decedent’s acknowledged natural child. The
husband of the decedent appealed to the CA, which reversed
the ruling of the probate court and found that Ligaya was not
able to establish that she had been acknowledged by Felisa
in accordance with Art. 278 of the Civil Code. The SC reversed
the ruling of the CA and found that the evidence submitted
by Ligay were “authentic writings” sufficient to prove her fil-
iation.
DOCTRINE: Voluntary recognition is an admission of the fact
of paternity or maternity by the presumed parent, expressed
in the form prescribed by the Civil Code. Its essence lies in
the avowal of the parent that the child is his; the formality is
added to make the admission incontestable, in view of its
consequences. The form is prescribed by Art. 278 of the Civil
Code, which provides that Art. 278 of the Civil Code shall be
made in the record of birth, a will, a statement before a court
of record, or in any authentic writing. On the other hand,
compulsory recognition, also called a judicial recognition, is
decreed by final judgment of the court and must be brought
within the lifetime of the presumed parents. Judicial ap-
proval is not necessary if a recognition is voluntarily made of
a person who is of age, only his consent being necessary or
of a minor whose acknowledgement is effected in a record
of birth or in a will. On the other hand, judicial approval is
necessary if the recognition of the minor is effected, not
through a record of birth or in a will but through a statement
in a court of record od an authentic document.
The requirement of judicial approval imposed by Art. 281 is
clearly intended for the benefit of the minor.
DOROTEA, VIRGILIO, APOLINARIO, JR., SULPICIO
& DOMINADOR, ALL SURNAMED UYGUANGCO V.
CA
SUMMARY: Graciano Uyguangco filed a complaint against
the petitioners (heirs of the deceased Apolinario Uyguangco)
alleging that he is an illegitimate son of Apolinario and that
he was excluded from the extrajudicial settlement of estate.
During trial, Graciano admitted that he had none of the doc-
uments mentioned in Art. 278 of the CC to show that he was
an illegitimate son. Thus, petitioners moved to dismiss the
case on the ground that Graciano could no longer prove his
alleged filiation since the alleged father is already died, an-
choring their arguments on CC provisions. RTC and CA denied
the motion. SC reversed and granted the petition, holding
that as per FC provisions (which is the applicable law, not the
CC), for the simple reason that Apolinario is already dead and
can no longer be heard on the claim of his alleged son's ille-
gitimate filiation (Art. 172, FC, 2nd par)
DOCTRINE: Since Graciano seeks to prove his filiation under
the second paragraph of Article 172 FC, his action is now
barred because of his alleged father's death in 1975.
Art. 175 FC, 2nd paragraph reads: The action must be
brought within the same period specified in Article 173, ex-
cept when the action is based on the second paragraph of
Article 172, in which case the action may be brought during
the lifetime of the alleged parent.
Thus, Graciano can no longer be allowed at this time to in-
troduce evidence of his open and continuous possession of
the status of an illegitimate child or prove his alleged filiation
through any of the means allowed by the Rules of Court or
special laws. The simple reason is that Apolinario Uyguangco
is already dead and can no longer be heard on the claim of
his alleged son's illegitimate filiation.
Sempio-DY in her Handbook on the Family Code of the Phil-
ippines, Justice Alicia Sempio-Diy explains the rationale of
the rule, thus: "It is a truism that unlike legitimate children
who are publicly recognized, illegitimate children are usually
begotten and raised in secrecy and without the legitimate
family being aware of their existence. Who then can be sure
of their filiation but the parents themselves? But suppose the
child claiming to be the illegitimate child of a certain person
is not really the child of the latter? The putative parent
should thus be given the opportunity to affirm or deny the
child's filiation, and this, he or she cannot do if he or she is
already dead."
FAMILY HOME
FAMILY CODE, ARTS. 152-162
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Art. 152. The family home, constituted jointly by the hus-
band and the wife or by an unmarried head of a family, is the
dwelling house where they and their family reside, and the
land on which it is situated.
Art. 153. The family home is deemed constituted on a house
and lot from the time it is occupied as a family residence.
From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home con-
tinues to be such and is exempt from execution, forced sale
or attachment except as hereinafter provided and to the ex-
tent of the value allowed by law.
Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the
head of a family; and
(2) Their parents, ascendants, descendants, brothers and sis-
ters, whether the relationship be legitimate or illegitimate,
who are living in the family home and who depend upon the
head of the family for legal support.
Art. 155. The family home shall be exempt from execution,
forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the family
home;
(3) For debts secured by mortgages on the premises before
or after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders,
material men and others who have rendered service or fur-
nished material for the construction of the building.
Art. 156. The family home must be part of the properties of
the absolute community or the conjugal partnership, or of
the exclusive properties of either spouse with the latter's
consent. It may also be constituted by an unmarried head of
a family on his or her own property.
Nevertheless, property that is the subject of a conditional
sale on instalments where ownership is reserved by the ven-
dor only to guarantee payment of the purchase price may be
constituted as a family home.
Art. 157. The actual value of the family home shall not ex-
ceed, at the time of its constitution, the amount of the three
hundred thousand pesos in urban areas, and two hundred
thousand pesos in rural areas, or such amounts as may here-
after be fixed by law.
In any event, if the value of the currency changes after the
adoption of this Code, the value most favorable for the con-
stitution of a family home shall be the basis of evaluation.
For purposes of this Article, urban areas are deemed to in-
clude chartered cities and municipalities whose annual in-
come at least equals that legally required for chartered cities.
All others are deemed to be rural areas.
Art. 158. The family home may be sold, alienated, donated,
assigned or encumbered by the owner or owners thereof
with the written consent of the person constituting the
same, the latter's spouse, and a majority of the beneficiaries
of legal age. In case of conflict, the court shall decide.
Art. 159. The family home shall continue despite the death
of one or both spouses or of the unmarried head of the fam-
ily for a period of ten years or for as long as there is a minor
beneficiary, and the heirs cannot partition the same unless
the court finds compelling reasons therefor. This rule shall
apply regardless of whoever owns the property or consti-
tuted the family home.
Art. 160. When a creditor whose claims is not among those
mentioned in Article 155 obtains a judgment in his favor, and
he has reasonable grounds to believe that the family home is
actually worth more than the maximum amount fixed in Ar-
ticle 157, he may apply to the court which rendered the judg-
ment for an order directing the sale of the property under
execution. The court shall so order if it finds that the actual
value of the family home exceeds the maximum amount al-
lowed by law as of the time of its constitution. If the in-
creased actual value exceeds the maximum allowed in Article
157 and results from subsequent voluntary improvements
introduced by the person or persons constituting the family
home, by the owner or owners of the property, or by any of
the beneficiaries, the same rule and procedure shall apply.
At the execution sale, no bid below the value allowed for a
family home shall be considered. The proceeds shall be ap-
plied first to the amount mentioned in Article 157, and then
to the liabilities under the judgment and the costs. The ex-
cess, if any, shall be delivered to the judgment debtor.
Art. 161. For purposes of availing of the benefits of a family
home as provided for in this Chapter, a person may consti-
tute, or be the beneficiary of, only one family home.
Art. 162. The provisions in this Chapter shall also govern ex-
isting family residences insofar as said provisions are appli-
cable.
NIRC
§86(A)(4) - Computation of Net Estate. - Deductions Al-
lowed to the Estate of Citizen or a Resident. - The Family
Home. – An amount equivalent to the current fair market
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value of the decedent's family home: Provided, however,
That if the said current fair market value exceeds One million
pesos (P1,000,000), the excess shall be subject to estate tax.
As a sine qua non condition for the exemption or deduction,
said family home must have been the decedent's family
home as certified by the barangay captain of the locality.
Definition of a Family Home
Art. 152 of the Family Code defines the family home as that
“...constituted jointly by the husband and the wife or by an
unmarried head of a family, is the dwelling house where they
and their family reside, and the land on which it is situated”
Rule 106 is deemed repealed by the Family Code
Under Article 153 of the Family Code, a family home is
deemed constituted on a house and lot from the time it is
occupied as a family residence. There is no need to constitute
the same judicially or extrajudicially as required in the Civil
Code. If the family actually resides in the premises, it is,
therefore, a family home as contemplated by law
JURISPRUDENCE
MODEQUILLO V. HON. BREVA
SUMMARY: A vehicular accident occurred and a case was
filed against Modequillo. The CA rendered a judgement
against Modequillo. A residential land in the name of
Modequillo was sought to be executed to satisfy the judge-
ment. Modequillo alleged that the said parcel of land is a
family home, thus cannot be executed to satisfy the judge-
ment. He further alleged that it was not one of the excep-
tions provided in Art. 155, of the FC. SC ruled that the said
parcel of land became a family home only upon the effectiv-
ity of the FC which means that, at the time the accident hap-
pened and the judgement was rendered, the said residential
lot was not yet considered a Family home.
DOCTRINE: Under the Family Code, a family home is deemed
constituted on a house and lot from the time it is occupied
as a family residence. There is no need to constitute the
same judicially or extrajudicially as required in the Civil Code.
If the family actually resides in the premises, it is, therefore,
a family home as contemplated by law
ABSENTEES
RULE 107
Section 1. Appointment of representative. — When a person
disappears from his domicile, his whereabouts being un-
known, and without having left an agent to administer his
property, or the power conferred upon the agent has ex-
pired, any interested party, relative or friend may petition
the Court of First Instance of the place where the absentee
resided before his dis-appearance, for the appointment of a
person to represent him provisionally in all that may be nec-
essary. In the City of Manila, the petition shall be filed in the
Juvenile and Domestic Relations Court.
Section 2. Declaration of absence; who may petition. — Af-
ter the lapse of two (2) years from his disappearance and
without any news about the absentee or since the receipt of
the last news, or of five (5) years in case the absentee has left
a person in charge of the administration of his property, the
declaration of his absence and appointment of a trustee or
administrative may be applied for by any of the following:
(a) The spouse present;
(b) The heirs instituted in a will, who may present an authen-
tic copy of the same.
(c) The relatives who would succeed by the law of intestacy;
and
(d) Those who have over the property of the absentee some
right subordinated to the condition of his death.
Section 3. Contents of petition. — The petition for the ap-
pointment of a representative, or for the declaration of ab-
sence and the appointment of a trustee or an administrator,
must show the following:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs instituted in
the will, copy of which shall be presented, and of the rela-
tives who would succeed by the law of intestacy;
(c) The names and residences of creditors and others who
may have any adverse interest over the property of the ab-
sentee;
(d) The probable value, location and character of the prop-
erty belonging to the absentee.
Section 4. Time of hearing; notice and publication
thereof. — When a petition for the appointment of a repre-
sentative, or for the declaration of absence and the appoint-
ment of a trustee or administrator, is filed, the court shall fix
a date and place for the hearing thereof where all concerned
may appear to contest the petition.
Copies of the notice of the time and place fixed for the hear-
ing shall be served upon the known heirs, legatees, devisees,
creditors and other interested persons, at least ten (10) days
before the day of the hearing, and shall be published once a
week for three (3) consecutive weeks prior to the time des-
ignated for the hearing, in a newspaper of general circulation
in the province or city where the absentee resides, as the
court shall deem best.
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Section 5. Opposition. — Anyone appearing to contest the
petition shall state in writing his grounds therefor, and serve
a copy thereof on the petitioner and other interested parties
on or before the date designated for the hearing.
Section 6. Proof at hearing; order. — At the hearing, compli-
ance with the provisions of section 4 of this rule must first be
shown. Upon satisfactory proof of the allegations in the pe-
tition, the court shall issue an order granting the same and
appointing the representative, trustee or administrator for
the absentee. The judge shall take the necessary measures
to safeguard the rights and interests of the absentee and
shall specify the powers, obligations and remuneration of his
representative, trustee or administrator, regulating them by
the rules concerning guardians.
In case of declaration of absence, the same shall not take ef-
fect until six (6) months after its publication in a newspaper
of general circulation designated by the court and in the Of-
ficial Gazette.
Section 7. Who may be appointed. — In the appointment of
a representative, the spouse present shall be preferred when
there is no legal separation. If the absentee left no spouse,
or if the spouse present is a minor or otherwise incompetent,
any competent person may be appointed by the court.
In case of declaration of absence, the trustee or administra-
tor of the absentee's property shall be appointed in accord-
ance with the preceding paragraph.
Section 8. Termination of administration. — The trusteeship
or administration of the property of the absentee shall cease
upon order of the court in any of the following cases:
(a) When the absentee appears personally or by means of an
agent;
(b) When the death of the absentee is proved and his testate
or intestate heirs appear;
(c) When a third person appears, showing by a proper docu-
ment that he has acquired the absentee's property by pur-
chase or other title.
In these cases the trustee or administrator shall cease in the
performance of his office, and the property shall be placed
at the disposal of whose may have a right thereto.
When is there a need to appoint an absentee
The following requisites are present:
1. A person disappears from his domicile
2. His whereabouts being unknown;
3. He has not left an agent to administer his property, OR
the power conferred upon the agent has expired
Who may be appointed representative of the absentee:
1. Any interested party;
2. Relative; or
3. Friend
Where must the petition be filed
The Court of First Instance of the place where the absentee
resided before his disappearance. If the place where the
absentee resided is in the City of Manila, the petition shall be
filed in the Juvenile and Domestic Relations Court.
Who may file a petition for declaration of absence?
Any of the following [Sec. 2, Rule 107; and Art. 385 of the Civil
Code]:
a. The spouse present;
b. The heirs instituted in a will, who may present an
authentic copy of the same;
c. The relatives who would suceed by the law of intestacy;
and
d. Those who have over the poperty of the absentee some
right subordinated to the condition of his death.
When a petition for declaration of absence may be filed
[Sec. 2, Rule 107; and Art. 384 of the Civil Code]
General Rule: After the lapse of two years from his
disappearance and without any news about the absentee or
since the receipt of the last news.
Exception: In case the absentee has left a person in charge of
the administration of his property, after the lapse of five
years
Where must the petition be filed
The Court of First Instance of the place where the absentee
resided before his disappearance. If the place where the
absentee resided is in the City of Manila, the petition shall be
filed in the Juvenile and Domestic Relations Court.
When administration terminated [Sec. 8, Rule 107; and Art.
389 of the Civil Code]
1. When the absentee appears personally or by means of
an agent;
2. When the death of the absentee is proved and his
testate or intestate heirs appear;
3. When a third person appears, showing by a proper
document that he has acquired the absentee's property
by purchase or other title.
Effect of termination [Sec. 8, Rule 107]
The trustee or administrator shall cease in the performance
of his office, and the property shall be placed at the disposal
of whose may have a right thereto.
JURISPRUDENCE
REPUBLIC V. CA, MADRONA
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SUMMARY: Apolinaria filed a petition for declaration of pre-
sumptive death of his husband who left her 9 years earlier.
The petition was for the purpose of contracting a subsequent
marriage. The RTC ruled in her favor and declared her hus-
band presumptively dead. The Republic sought to appeal the
RTC order by filing a notice of appeal. RTC, CA: The petition
is not an ordinary action but a special proceeding, hence a
record on appeal must be filed in addition to the notice of
appeal. SC: CA decision reversed. The petition is a summary
ordinary proceeding under the Family Code, not the special
proceeding under the ROC. Hence the notice of appeal is suf-
ficient.
DOCTRINE: A petition for declaration of presumptive death
of an absentee spouse for the purpose of contracting a sub-
sequent marriage under Art. 41 of the Family Code is a sum-
mary proceeding under the Family Code, not a special pro-
ceeding under the Revised Rules of Court. It being a summary
ordinary proceeding, for the purpose of appealing, the filing
of a Notice of Appeal is sufficient,
APPEALS IN SPECIAL PROCEEDINGS
RULE 109
Section 1. Orders or judgments from which appeals may be
taken. — An interested person may appeal in special pro-
ceedings from an order or judgment rendered by a Court of
First Instance or a Juvenile and Domestic Relations Court,
where such order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased per-
son, or the distributive share of the estate to which such per-
son is entitled;
(c) Allows or disallows, in whole or in part, any claim against
the estate of a deceased person, or any claim presented on
behalf of the estate in offset to a claim against it;
(d) Settles the account of an executor, administrator, trustee
or guardian;
(e) Constitutes, in proceedings relating to the settlement of
the estate of a deceased person, or the administration of a
trustee or guardian, a final determination in the lower court
of the rights of the party appealing, except that no appeal
shall be allowed from the appointment of a special adminis-
trator; and
(f) Is the final order or judgment rendered in the case, and
affects the substantial rights of the person appealing unless
it be an order granting or denying a motion for a new trial or
for reconsideration.
Section 2. Advance distribution in special proceedings. —
Notwithstanding a pending controversy or appeal in pro-
ceedings to settle the estate of a decedent, the court may, in
its discretion and upon such terms as it may deem proper
and just, permit that such part of the estate may not be af-
fected by the controversy or appeal be distributed among
the heirs or legatees, upon compliance with the conditions
set forth in Rule 90 of this rules.
Who may appeal
An interested person may appeal in special proceedings from
an order or judgment rendered by the court. The interest of
the person must be material and direct, not merely indirect
or contingent. Unless the party has such material and direct
interest, he is precluded from appealing an order or judg-
ment of the court. [Teotico v. Del Val]
JURISPRUDENCE
TESTATE ESTATE OF MARIA MANUEL VDA. DE BI-
ASCAN VS. ROSALINA C. BIASCAN
SUMMARY: Rosalina filed a petition praying for her appoint-
ment as administratrix of the intestate estate of Florencio.
she was appointed such. Maria entered her appearance as
oppositor claiming that she is Florencio’s legal wife and that
she should be administratrix of his estate. TC denied Maria’s
plea to be administratrix. Maria filed an MR 58 days after her
receipt of the order. TC denied for being filed out of time. CA
and SC affirmed TC.
DOCTRINE: In special proceedings, such as the instant pro-
ceeding for settlement of estate, the period of appeal from
any decision or final order rendered therein is 30 days, a no-
tice of appeal and a record on appeal being required. The ap-
peal period may only be interrupted by the filing of a motion
for new trial or reconsideration. Once the appeal period ex-
pires without an appeal or a motion for reconsideration or
new trial being perfected, the decision or order becomes fi-
nal.
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