SPECIAL PROCEEDINGS

(Part IX of IX)

I. Special Proceedings A. Subject Matter and Applicabilit o! General Rules "Rule #$%
Sec. &. Subject matter of special proceedings. Rules o! special proceedings are pro'ided !or in t(e !ollo)ing cases* "a% Settle+ent o! estate o! deceased persons, "b% Esc(eat, "c% Guardians(ip and custod o! c(ildren, "d% -rustees, "e% Adoption, "!% Rescission and re'ocation o! adoption, "g% .ospitali/ation o! insane persons, "(% .abeas corpus, "i% C(ange o! na+e, "j% 0oluntar dissolution o! corporations, "1% 2udicial appro'al o! 'oluntar recognition o! +inor natural c(ildren, "l% Constitution o! !a+il (o+e, "+% Declaration o! absence and deat(, "n% Cancellation or correction o! entries in t(e ci'il registr . Sec. $. Applicability of rules of civil actions. In t(e absence o! special pro'isions3 t(e rules pro'ided !or in ordinar actions s(all be3 as !ar as practicable3 applicable in special proceedings. Special proceedings are special because they are not adversarial. A special proceeding is a remedy to establish the status or right of a party or a particular fact. An ordinary action is one by which one party prosecutes another for the enforcement or protection of a right or the prevention or redress of a wrong. ( ! " of #ule ")

4. Settle+ent o! Estate o! Deceased Persons &. Su++ar Settle+ent o! Estates a. Rule #5

Sec. &. Extrajudicial settlement by agreement between heirs. I! t(e decedent le!t no )ill and no debts and t(e (eirs are all o! age3 or t(e +inors are represented b t(eir judicial or legal representati'es dul aut(ori/ed !or t(e purpose3 t(e parties +a 3 )it(out securing letters o! ad+inistration3 di'ide t(e estate a+ong t(e+sel'es as t(e see !it b +eans o! a public instru+ent !iled in t(e o!!ice o! t(e register o! deeds3 and s(ould t(e disagree3 t(e +a do so in an ordinar action o! partition. I! t(ere is onl one (eir3 (e +a adjudicate to (i+sel! t(e entire estate b +eans o! an a!!ida'it !iled in t(e o!!ice o! t(e register o! deeds.

-(e parties to an e6trajudicial settle+ent3 )(et(er b public instru+ent or b stipulation in a pending action !or partition3 or t(e sole (eir )(o adjudicates t(e entire estate to (i+sel! b +eans o! an a!!ida'it s(all !ile3 si+ultaneousl )it( and as a condition precedent to t(e !iling o! t(e public instru+ent3 or stipulation in t(e action !or partition3 or o! t(e a!!ida'it in t(e o!!ice o! t(e register o! deeds3 a bond )it( t(e said register o! deeds3 in an a+ount e7ui'alent to t(e 'alue o! t(e personal propert in'ol'ed as certi!ied to under oat( b t(e parties concerned and conditioned upon t(e pa +ent o! an just clai+ t(at +a be !iled under section 5 o! t(is rule. It s(all be presu+ed t(at t(e decedent le!t no debts i! no creditor !iles a petition !or letters o! ad+inistration )it(in t)o "$% ears a!ter t(e deat( o! t(e decedent. -(e !act o! t(e e6trajudicial settle+ent or ad+inistration s(all be publis(ed in a ne)spaper o! general circulation in t(e +anner pro'ided in t(e ne6t succeeding section, but no e6trajudicial settle+ent s(all be binding upon an person )(o (as not participated t(erein or (ad no notice t(ereo!.

Modes o! Settle+ent o! Estate

. %&tra'udicial (odes .a Agreement of the heirs (#ule )*+ ) .b Affidavit of self,ad'udication (#ule )*+ ) ." -udicial (odes .a Partition (#ule )* .ordinary action of partition/) .b Stipulation in a pending action (#ule )*+ ) .c Interventions in a pending action (#ule )*+ ) .d Summary settlement of estates of small value (#ule )*+ ") .e Probate (Petition for 0etters) ) )" 1estate Intestate

If there is a will and there are no debts+ a probate is mandatory. A petition for letters can2t be opposed simply because it is e&pensive.

Ad'antages o! e6tra8judicial settle+ent

. less e&pensive ." faster

Ad'antages o! judicial settle+ent

. res 'udicata .a 45 Proceedings when property concealed+ embe66led+ or fraudulently conveyed ." availability of remedies (#ule 3))

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.b )5 Persons entrusted with estate compelled to render an account .c 35 %mbe66lement before letters issued .d $5 Property fraudulently conveyed by deceased may be recovered. :hen e&ecutor or administrator must bring action.

Modes o! Attac1ing an %&tra'udicial Settle+ent

. #ule )*+ *5 ;laim of an heir+ creditor+ or other person (within " years after distribution)
Sec. *. Liability of distributees and estate. If it shall appear at any time within two (") years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule+ that an heir or other person has been unduly deprived of his lawful participation in the estate+ such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. And if within the same time of two (") years+ it shall appear that there are debts outstanding against the estate which have not been paid+ or that an heir or other person has been unduly deprived of his lawful participation payable in money+ the court having 'urisdiction of the estate may+ by order for that purpose+ after hearing+ settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof+ and may issue e&ecution+ if circumstances re<uire+ against the bond provided in the preceding section or against the real estate belonging to the deceased+ or both. Such bond and such real estate shall remain charged with a liability to creditors+ heirs+ or other persons for the full period of two (") years after such distribution+ notwithstanding any transfers of real estate that may have been made.

." =ile for letters of administration .> Arts. 9$) ? 9@+ A;;5 Brounds for rescinding a partition (within * years from the time the partition was made)
Art. 9$). A partition may be rescinded or annulled for the same causes as contracts. ( 9)>a) Art. 9$3. A partition+ 'udicial or e&tra,'udicial+ may also be rescinded on account of lesion+ when any one of the co,heirs received things whose value is less+ by at least one,fourth+ than the share to which he is entitled+ considering the value of the things at the time they were ad'udicated. ( 9)*a) Art. 9$$. 1he partition made by the testator cannot be impugned on the ground of lesion+ e&cept when the legitime of the compulsory heirs is thereby pre'udiced+ or when it appears or may reasonably be presumed+ that the intention of the testator was otherwise. ( 9)@) Art. 99. 1he action for rescission on account of lesion shall prescribe after four years from the time the partition was made. ( 9)4) Art. 9 . 1he heir who is sued shall have the option of indemnifying the plaintiff for the loss+ or consenting to a new partition. Indemnity may be made by payment in cash or by the delivery of a thing of the same 7ind and <uality as that awarded to the plaintiff. If a new partition is made+ it shall affect neither those who have not been pre'udiced nor those have not received more than their 'ust share. ( 9))a) Art. 9". An heir who has alienated the whole or a considerable part of the real property ad'udicated to him cannot maintain an action for rescission on the ground of lesion+ but he shall have a right to be indemnified in cash. ( 9)3a) Art. 9>. 1he omission of one or more ob'ects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion+ but the partition shall be completed by the distribution of the ob'ects or securities which have been omitted. ( 9)$a)

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Art. 9*. A partition made with preterition of any of the compulsory heirs shall not be rescinded+ unless it be proved that there was bad faith or fraud on the part of the other persons interestedC but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him. ( 939) Art. 9@. A partition which includes a person believed to be an heir+ but who is not+ shall be void only with respect to such person. ( 93 a)

Modes o! Attac1ing a -udicial Settle+ent

. #ule >)5 (otion for Aew 1rial or #econsideration ( @ days) ." #ule *"+ 5 Appeal (a total of >9 daysC 1here is an initial period of @ days. Dnder #ule *" + a motion for e&tension may grant up to @ days of e&tension.) .> #ule >35 #elief from -udgments+ Erders or Ether Proceedings (within 49 days after the petitioner learns of the 'udgment+ final order or other proceeding to be set aside+ and not more than 4 months after such 'udgment or final order was entered+ or such proceeding was ta7en) .* #ule 4@5 ;ertiorari (49 days) .@ #ule *)5 Annulment of -udgments or =inal Erders and #esolutions .a %&trinsic fraud5 within * years from its discovery .b 0ac7 of 'urisdiction5 before it is barred by laches or estoppel

Re7uisites !or a 'alid e6tra8judicial partition

. decedent left no will and no debts ." the heirs are all of age+ or represented by their authori6ed 'udicial or legal representatives .> Public instrument .* Publication .@ Fond+ in case personal property is to be distributed+ conditioned for the payment of any 'ust claim of an heir or any other person unduly deprived of his lawful participation in the estate. (#ule )*+ >) .4 #egistration with the #o8+ in case of real property

Re7uisites !or settle+ent b sel!8adjudication

. only one heir ." affidavit filed with the #o8 Ao e&tra'udicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. Sec. $. Summary settlement of estates of small value. 9(ene'er t(e gross 'alue o! t(e estate o! a deceased person3 )(et(er (e died testate or intestate3 does not e6ceed ten t(ousand pesos3 and t(at !act is +ade to appear to t(e Court o! :irst Instance (a'ing jurisdiction o! t(e estate b t(e petition o! an interested person and upon (earing3 )(ic( s(all be (eld not less t(an "&% +ont( nor +ore t(an t(ree ";% +ont(s !ro+ t(e date o! t(e last publication o! a notice )(ic( s(all be publis(ed once a )ee1 !or t(ree ";% consecuti'e )ee1s in a ne)spaper o! general circulation in t(e pro'ince3 and a!ter suc( ot(er notice to interested persons as t(e court +a direct3 t(e court +a proceed su++aril 3 )it(out t(e
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appoint+ent o! an e6ecutor or ad+inistrator3 and )it(out dela 3 to grant3 i! proper3 allo)ance o! t(e )ill3 i! an t(ere be3 to deter+ine )(o are t(e persons legall entitled to participate in t(e estate3 and to apportion and di'ide it a+ong t(e+ a!ter t(e pa +ent o! suc( debts o! t(e estate as t(e court s(all t(en !ind to be due, and suc( persons3 in t(eir o)n rig(t3 i! t(e are o! la)!ul age and legal capacit 3 or b t(eir guardians or trustees legall appointed and 7uali!ied3 i! ot(er)ise3 s(all t(ereupon be entitled to recei'e and enter into t(e possession o! t(e portions o! t(e estate so a)arded to t(e+ respecti'el . -(e court s(all +a1e suc( order as +a be just respecting t(e costs o! t(e proceedings3 and all orders and judg+ents +ade or rendered in t(e course t(ereo! s(all be recorded in t(e o!!ice o! t(e cler13 and t(e order o! partition or a)ard3 i! it in'ol'es real estate3 s(all be recorded in t(e proper register<s o!!ice.

Re7uisites !or Su++ar settle+ent o! estates o! s+all 'alue ")(et(er testate or intestate%
. gross value of the estate does not e&ceed P 9+999 ." that fact is made to appear to the #1; having 'urisdiction of the estate by the petition of an interested person .> publication of a notice which once a wee7 for > consecutive wee7s in a newspaper of general circulation in the province .* notice to interested persons as the court may direct .@ upon hearing+ which shall be held not less the last publication month nor more than > months from the date of

1he advantage of summary settlement of estate is not e&ecutor or administrator is appointed. Sec. ;. Bond to be filed by distributees. -(e court3 be!ore allo)ing a partition in accordance )it( t(e pro'isions o! t(e preceding section3 +a re7uire t(e distributees3 i! propert ot(er t(an real is to be distributed3 to !ile a bond in an a+ount to be !i6ed b court3 conditioned !or t(e pa +ent o! an just clai+ )(ic( +a be !iled under t(e ne6t succeeding section. If personal property is to be distributed+ the court may re<uire the distributees to file a bond+ conditioned for the payment of any 'ust claim which may be filed within " years from settlement of the estate. Sec. 5. Liability of distributees and estate. I! it s(all appear at an ti+e )it(in t)o "$% ears a!ter t(e settle+ent and distribution o! an estate in accordance )it( t(e pro'isions o! eit(er o! t(e !irst t)o sections o! t(is rule3 t(at an (eir or ot(er person (as been undul depri'ed o! (is la)!ul participation in t(e estate3 suc( (eir or suc( ot(er person +a co+pel t(e settle+ent o! t(e estate in t(e courts in t(e +anner (ereina!ter pro'ided !or t(e purpose o! satis! ing suc( la)!ul participation. And i! )it(in t(e sa+e ti+e o! t)o "$% ears3 it s(all appear t(at t(ere are debts outstanding against t(e estate )(ic( (a'e not been paid3 or t(at an (eir or ot(er person (as been undul depri'ed o! (is la)!ul participation pa able in +one 3 t(e court (a'ing jurisdiction o! t(e estate +a 3 b order !or t(at purpose3 a!ter (earing3 settle t(e a+ount o! suc( debts or la)!ul participation and order (o) +uc( and in )(at +anner eac( distributee s(all contribute in t(e pa +ent t(ereo!3 and +a issue e6ecution3 i! circu+stances re7uire3 against t(e bond pro'ided in t(e
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preceding section or against t(e real estate belonging to t(e deceased3 or bot(. Suc( bond and suc( real estate s(all re+ain c(arged )it( a liabilit to creditors3 (eirs3 or ot(er persons !or t(e !ull period o! t)o "$% ears a!ter suc( distribution3 not)it(standing an trans!ers o! real estate t(at +a (a'e been +ade. Sec. =. Period for claim of minor or incapacitated person. I! on t(e date o! t(e e6piration o! t(e period o! t)o "$% ears prescribed in t(e preceding section t(e person aut(ori/ed to !ile a clai+ is a +inor or +entall incapacitated3 or is in prison or outside t(e P(ilippines3 (e +a present (is clai+ )it(in one "&% ear a!ter suc( disabilit is re+o'ed.

Re+edies o! e6cluded (eir>creditor in an e6trajudicial partition

. :ithin " years from distribution .a claim against the bond .b file for letters of administration ." #escind the partition under the A;; (within * years from the time the partition was made) 1he bond and real estate remains charged with a liability to creditors+ heirs+ or other persons for " years after the distribution+ despite any transfers that may have been made.

Instances )(en t(e probate court +a issue )rits o! e6ecution

. In the e&ercise of probate 'urisdiction+ #1; may issue warrants and processes necessary to carry into effect their orders and 'udgments. (#ule )> >)

." If within " years after the summary settlement and distribution of an estate+ it shall appear that there are debts outstanding against the estate which have not been paid+ or that a person has been unduly deprived of his lawful participation payable in money+ the court having 'urisdiction of the estate may+ by order for that purpose+ after hearing+ settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof+ and may issue e&ecution+ if circumstances re<uire+ against the bond or against the real estate belonging to the deceased+ or both. (#ule )* *) AE1%5 1he ",year periods in #ule )*+ and * are different. #ule )*+ 2s .two year period from death of the decedent/ refers to a presumption of a Gno debt2 situation in the absence of any claim by a creditor within such period. En the other hand+ #ule )*+ *2s .two years from the settlement of the estate/ refers to the period allowed to a creditor and omitted heir to file a claim against the estate.

E6ceptions* I! on t(e date o! t(e e6piration o! $ ears !ro+ distribution3 t(e clai+ant is
. minor ." mentally incapacitated .> in prison or .* outside the Philippines+ he may present his claim within year after such disability is removed.

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b. Cases Arcillas v. ontejo3 $? SCRA &@# "&@?A%

1he fact that an intestate estate has no debts does not preclude from instituting administration proceedings. %&tra'udicial settlement of estate is merely discretionary on the part of the heirs. 8elay and e&penses are not grounds to deny a petition for administration. Probate still can be useful because the truth or veracity of claims relating to other properties can be more ade<uately ascertained in administration proceedings.

!e "arces v. Broce# $% S&'A ()$ *)+(,1he effectivity between the heirs of an e&tra'udicial settlement is not dependent on the registration of the agreement. #egistration is necessary only to affect >rd parties and creditors and to protect creditors and the heirs against tardy claims. As between the heirs+ an unregistered st partition prevails over a "nd partition even if registered. 1he re<uirement of a public instrument instrment is merely evidentiary against >rd parties.

c ic.ing v. Sy &onbieng# $) Phil. $)) *)+)$After partition+ the administrator is stripped of all responsibility to the estate+ its creditors+ the heirs and the court. ;oncurrently+ his surety is completely discharged. 1he only re<uisite for a partition is that the estate has no debts. =inally+ after partition+ a claim is allowed only if discovered within " years from partition and the claimant moves for appointment of a new administrator.

Lajom v. /iola# 0% Phil. 1(% *)+2$A 'udicial partition does not bind the heirs who were not parties thereto. 1he heir who has been deprived of his share may bring an action for reinvidication within 9 years. Similarly+ an heir who had 7nowledge of the partition+ but was deceived by a participating heir into not <uestioning the partition may bring an action for reinvidication within 9 years.

3ere4 v. 5ietes# %6 S&'A +61 *)+(+An approved pro'ect of partition may be reopened upon motion for intervention (not an independent action) by a preterited heir. However+ such a motion must be supported by proof+ and not 'ust allegations+ of the interest of the movants to 'ustify reopening of the probate proceedings.

"erona v. de "u4man# )) 1&'A )1% *)+(2=raud in the e&ecution of a deed of e&tra,'udicial settlement is demed to have been discovered from its registration.

7ernande4 v. Andal# 0, Phil. )+( *)+20Fetween the parties+ an oral partition is valid and may be proved by parol evidence. Partition is not covered by the statute of frauds because it is not a convweyance but simply a separation and desitnation of that part of the land which belongs to each tenant in common. Fesides+ the statute of frauds does not apply to e&ecuted contracts+ whether complete or partial.

8orres v. 8orres# )6 S&'A ),1 *)+(2:here the estate had no debts and the heirs have entered into an e&tra'udicial settlement of estate+ but are unable to agree on the physical segregation of the property+ the remedy is not estate proceedings but an action for partition.

&arreon v. Agcaoili# ) S&'A 1$) *)+():here more than " years have passed since the estate was settled by an affidavit of self, ad'udication+ the lien of unduly e&cluded heirs on property of the estate becomes functus oficio.

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Any annotation of such lien on titles to property is rendered ineffective. 1he title of a good faith buyer of such property who bought the property after " year period can not be <uestioned.

Sampilo v. &A# )6% Phil. 06 *)+1,1he " year period for unduly e&cluded persons to <uestion an e&tra'udicial settlement of an estate applies only to those who participated in the settlement. de 0eon5 Aote that in Carreon+ the court ruled that the buyer of the property was in good faith. In Sampilo+ there was a finding that the buyer was aware that there had been e&cluded heirs. I thin7 the Sampilo ruling is the prevailing doctrine because #ule )* Sec. states that5
Sec. . &&& no e&tra'udicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.

$. Production o! 9ill. Allo)ance o! 9ill Necessar a. Rule #=

Sec. &. Allowances necessary. &onclusive as to execution. No )ill s(all pass eit(er real or personal estate unless it is pro'ed and allo)ed in t(e proper court. Subject to t(e rig(t o! appeal3 suc( allo)ance o! t(e )ill s(all be conclusi'e as to its due e6ecution. Probate of a will is mandatory. An e&tra'udicial partition or settlement is legally possible only if there was no will. However+ a pro'ect of partition which does not follow the will is admissible+ based on the principles that .future inheritance cannot be waived/ and .inheritance passes at decedent2s death./ 1he heirs may waive the benefits given them. Sec. $. &ustodian of will to deliver. -(e person )(o (as custod o! a )ill s(all3 )it(in t)ent "$B% da s a!ter (e 1no)s o! t(e deat( o! t(e testator3 deli'er t(e )ill to t(e court (a'ing jurisdiction3 or to t(e e6ecutor na+ed in t(e )ill. Sec. ;. Executor to present will and accept or refuse trust. A person na+ed as e6ecutor in a )ill s(all3 )it(in t)ent "$B% da s a!ter (e 1no)s o! t(e deat( o! t(e testator3 or )it(in t)ent "$B% da s a!ter 1no)s t(at (e is na+ed e6ecutor i! (e obtained suc( 1no)ledge a!ter t(e deat( o! t(e testator3 present suc( )ill to t(e court (a'ing jurisdiction3 unless t(e )ill (as reac(ed t(e court in an ot(er +anner3 and s(all3 )it(in suc( period3 signi! to t(e court in )riting (is acceptance o! t(e trust or (is re!usal to accept it. Sec. 5. &ustodian and executor subject to fine for neglect. A person )(o neglects an o! t(e duties re7uired in t(e t)o last preceding sections )it(out e6cuse satis!actor to t(e court s(all be !ined not e6ceeding t)o t(ousand pesos. Sec. =. Person retaining will may be committed. A person (a'ing custod o! a )ill a!ter t(e deat( o! t(e testator )(o neglects )it(out reasonable cause to deli'er t(e sa+e3 )(en ordered so to do3 to t(e court (a'ing jurisdiction3 +a be co++itted to prison and t(ere 1ept until (e deli'ers t(e )ill.

b. Cases Palacios v. &atimbang Palacios# )6( Phil. 0%+ *)+1+:here the testator himself petitioned for probate+ the court can not deny probate of a will on the ground of preterition. Aote that the will was allowed in Palacios because it was the testator himself who petitioned for probate and can therefore subse<uently institute the preterited heir. In Maninang+ the will was
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allowed probate because there was an issue of defective disinheritance or preterition. In Acain+ preterition was not in dispute+ hence+ the will was denied probate.

"uevarra v. "uevarra# +, Phil. $2+ *)+1(A petition to allow a will does not prescribe.

ercado v. Santos# (( Phil. $)1 *)+%,Probate renders conclusive the due e&ecution of the will. A subse<uent prosecution for forgery of the testator2s signature of a probated will will not prosper. 1he remedy is file an appeal+ declaratory relief (#ule 4>) or special civil action for certiorari (#ule 4@).

anahan v.

anahan# 1, Phil. 22, *)+%%-

An intestate non,compulsory uninstituted heir is not entitled to be notified of the probate proceedings. Probate is conclusive as to the due e&ecution of the will.

9ernande4 v. !imagiba# $) S&'A 2$, *)+(0Allowance of a will to probate if a final and appealable 'udgment. 1he opponent should not await resolution of other issues before appealing the decision. =ailure to appeal renders the probate as conclusive as to the due e&ecution of the will. 1he issue of revocation is irrelevant in the probate proceedings. Enly a total and absolute revocation of the will itself can preclude probate. Probate of a will is mandatory+ hence it can not be precluded by the fact that the proponent was in estoppel.

'iera v. Palmori# 26 Phil. )61 *)+)+1o <uestion allowance of a will via relief from 'udgment (#ule >3+ $$) #ules of ;ivil Procedure) there must have been =A(% committed and the petition should be filed within 49 days from discovery mut not more than 4 months from entry of 'udgment.

:n re; 3ohnson# %+ Phil. )1( *)+),1o <uestion allowance of a will via relief from 'udgment (#ule >3+ $$) #ules of ;ivil Procedure) there must have been =A(% committed and the petition should be filed within 49 days from discovery mut not more than 4 months from entry of 'udgment.

<.S. v. &hiu "uimco# %( Phil. +)0 *)+)01he penalty imposable on a person who fails to produce a will depends on the manner in which the court is acting. If it is acting as a criminal court+ then it can impose only a fine. If it is acting as a probate court+ then it can impose only imprisonment.

;. Initiation o! Proceedings a. 9(ose estate +a be settled

does not have to be a residentC does not have to be a citi6en (#ule )> )

b. 9(ere petition +a be !iled

-urisdiction of the #1; has e&clusive original 'urisdiction over matters of probate where the gross value of the estate e&ceeds . P"99+999 outside (etro (anila (P>99+999 by "99*) ." P*99+999 in (etro (anila

&% Rule #;
Sec. &. =here estate of deceased person settled. I! t(e decedent is an in(abitant o! t(e P(ilippines at t(e ti+e o! (is deat(3 )(et(er a citi/en or an alien3 (is )ill s(all be pro'ed3

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or letters o! ad+inistration granted3 and (is estate settled3 in t(e Court o! :irst Instance in t(e pro'ince in )(ic( (e resides at t(e ti+e o! (is deat(3 and i! (e is an in(abitant o! a !oreign countr 3 t(e Court o! :irst Instance o! an pro'ince in )(ic( (e (ad estate. -(e court !irst ta1ing cogni/ance o! t(e settle+ent o! t(e estate o! a decedent3 s(all e6ercise jurisdiction to t(e e6clusion o! all ot(er courts. -(e jurisdiction assu+ed b a court3 so !ar as it depends on t(e place o! residence o! t(e decedent3 or o! t(e location o! (is estate3 s(all not be contested in a suit or proceeding3 e6cept in an appeal !ro+ t(at court3 in t(e original case3 or )(en t(e )ant o! jurisdiction appears on t(e record. Ienue5 If the decedent+ at the time of his death+ is a . Philippine inhabitant ? #1; in the province in which he resides at the time of his death+ and .a #1; of any province in which he had estate .b 1he court first ta7ing cogni6ance shall e&ercise 'urisdiction to the e&clusion of all other courts. A determination of venue may be <uestioned only . in an appeal (of the main case+ not 'ust the issue of venue J#ule 9$+ #ule 4>K+ or ." when the want of 'urisdiction appears on record. Sec. $. =here estate settled upon dissolution of marriage. 9(en t(e +arriage is dissol'ed b t(e deat( o! t(e (usband or )i!e3 t(e co++unit propert s(all be in'entoried3 ad+inistered3 and li7uidated3 and t(e debts t(ereo! paid3 in t(e testate or intestate proceedings o! t(e deceased spouse. I! bot( spouses (a'e died3 t(e conjugal partners(ip s(all be li7uidated in t(e testate or intestate proceedings o! eit(er. 1he property regime is li<uidated in the probate proceedings of the deceased spouse. If both spouses have died+ it can be li<uidated in the probate proceedings of either. Sec. ;. Process. In t(e e6ercise o! probate jurisdiction3 Court o! :irst Instance +a issue )arrants and processes necessar to co+pel t(e attendance o! )itnesses or to carr into e!!ect t(eir orders and judg+ents3 and all ot(er po)ers granted t(e+ b la). I! a person does not per!or+ an order o! judg+ent rendered b a court in t(e e6ercise o! its probate jurisdiction3 it +a issue a )arrant !or t(e appre(ension and i+prison+ent o! suc( person until (e per!or+s suc( order or judg+ent3 or is released. Powers of the probate court . issue warrants and processes necessary to compel the attendance of witnesses or to carry into effect their orders and 'udgments+ and all other powers granted them by law ." =oreign inhabitant

." If a person defies a probate order+ it may issue a warrant for the apprehension and imprisonment of such person until he performs such order or 'udgment+ or is released. Sec. 5. Presumption of death. :or purposes o! settle+ent o! (is estate3 a person s(all be presu+ed dead i! absent and un(eard !ro+ !or t(e periods !i6ed in t(e Ci'il Code. 4ut i! suc( person pro'es to be ali'e3 (e s(all be entitled to t(e balance o! (is estate a!ter pa +ent o! all (is debts. -(e balance +a be reco'ered b +otion in t(e sa+e proceeding. cf Arts. >$9,>$" A;;+ and #ule > Sec. > (w) #o;
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3 Art. >$9. After an absence of seven years+ it being un7nown whether or not the absentee still lives+ he shall be presumed dead for all purposes+ e&cept for those of succession. 1he absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy,five years+ an absence of five years shall be sufficient in order that his succession may be opened. (n) Art. >$ . 1he following shall be presumed dead for all purposes+ including the division of the estate among the heirs5 ( ) A person on board a vessel lost during a sea voyage+ or an aeroplane which is missing+ who has not been heard of for four years since the loss of the vessel or aeroplaneC (") A person in the armed forces who has ta7en part in war+ and has been missing for four yearsC (>) A person who has been in danger of death under other circumstances and his e&istence has not been 7nown for four years. (n) #ule > + Sec. >. &&& (w) 1hat after an absence of seven years+ it being un7nown whether or not the absentee still lives+ he is considered dead for all purposes+ e&cept for those of succession. 1he absentee shall not be considered dead for the purposeof opening his succession till after an absence of ten years. If he disappeared after the age of seventy,five years+ an absence of five years shall be sufficient in order that his succession may be opened. 1he following shall be considered dead for all purposes including the division of the estate among the heirs5 ( ) A person on board a vessel lost during a sea voyage+ or an aircraft which is missing+ who has not been heard of for four years since the loss of the vessel or aircraftC (") A member of the armed forces who has ta7en part in armed hostilities+ and has been missing for four yearsC (>) A person who has been in danger of death under other circumstances and whose e&istence has not been 7nown for four yearsC (*) If a married person has been absent for four consecutive years+ the spouse present may contract a subse<uent marriage if he or she has a well,founded belief that the absent spouse is already dead. In case of disappearance+ where there is danger of death under the circumstances hereinabove provided+ an absence of only two years shall be sufficient for the purpose of contracting a subse<uent marriage. However+ in any case+ before marrying again+ the spouse present must institute a summary proceeding as provided in the =amily ;ode and in the rules for a declaration of presumptive death of the absentee+ without pre'udice to the effect of reappearance of the absent spouse.

If the absentee proves to be alive+ he shall be entitled to the balance of his estate after payment of all his debts. 1he balance may be recovered by motion in the same proceeding. cf Art. >$" A;;
Art. >$". If the absentee appears+ or without appearing his e&istence is proved+ he shall recover his property in the condition in which it may be found+ and the price of any property that may have been alienated or the property ac<uired therewithC but he cannot claim either fruits or rents. ( $*)

$% Cases :n re >aw Singco# 02 Phil. $%, *)+2%#esidence of deceased in probate proceedings is a matter of venue and not of 'urisdiction over the sub'ect matter. All #1;s have 'urisdiction over probate cases+ but not all have the proper venue. 1he S; had to resolve this issue because it can ta7e cogni6ance of the case only if the court2s 'urisdiction+ not venue+ is being <uestioned.

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"arcia 9ule v. &ourt of Appeals# 02 S&'A ),+ *)+0(#esidence should be understood in its popular sense as the personal+ actual or physical presence in a place and actual stay thereat. It is not to be understood as domicile or legal residence.

&uenco v. &ourt of Appeals# 1% S&'A %(6 *)+0%1he court with whom the petition is first filed+ must also first ta7e cogni6ance of the settlement of the estate in order to e&ercise 'urisdiction over it to the e&clusion of all other courts. Luestions on venue are resolved by the court ta7ing first cogni6ance of the case. Such court+ may also decline to ta7e cogni6ance of the petition and hold the petition before it in abeyance+ and instead defer to the second court. =urthermore+ probate proceedings ta7e precedence over intestate proceedings. 0astly+ the #ules re<uire that the petition for allowance of a will must show the 'urisdictional facts5 ) death of the decedent+ ") his residence at the time of his death in the province where the probate court is sitting+ or if he is an inhabitant of a foreign country+ his having left his estate in such province.

an4anero v. &9: of Batangas# () Phil. ,16 *)+%11he determination of venue may be <uestioned only if the want of 'urisdiction appears on record+ or on appeal+ AE1 through a special civil action of certiorari. ;ertiorari is available only where want of 'urisdiction appears on the record.

Eusebio v. Eusebio# )66 Phil. 1+% *)+1(1o establish residence sufficient to confer venue+ there must have been an intention of the decedent to live there indefinitely. 1he provision that the court first ta7ing cogni6ance of the case e&cludes all other courts applies mainly to non,resident decedents who have properties in several provinces. de 0eon5 Fule said residence means actual presence. Eusebio <ualified this by saying actual presence must also be accompanied by an intent to stay there indefinitely. In Cuenco+ the "nd court had venue because the st court deferred to it. It is best to ignore Cuenco2s application of the principle on e&clusion because Eusebio said this principle applies to cases where there are courts of concurrent venue+ i.e. when the decedent is not a resident of the Philippines and has left properties in different provinces.

<riarte v. &9: of 5eg. ?cc.# %% S&'A $1$ *)+061hough testate proceedings ta7e precedence over intestate proceedings+ if the intestate court too7 cogni6ance of the estate before the testate court+ the will should be submitted to the intestate court for probate. However+ ob'ections to venue may be waived and lost by laches.

c. 9(o +a !ile petition "Rule #? Sec. &%

Sec. &. =ho may petition for the allowance of will. An e6ecutor3 de'isee3 or legatee na+ed in a )ill3 or an ot(er person interested in t(e estate3 +a 3 at an ti+e a!ter t(e deat( o! t(e testator3 petition t(e court (a'ing jurisdiction to (a'e t(e )ill allo)ed3 )(et(er t(e sa+e be in (is possession or not3 or is lost or destro ed. -(e testator (i+sel! +a 3 during (is li!eti+e3 petition t(e court !or t(e allo)ance o! (is )ill.

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%&ecutor+ devisee or legatee in the will+ or any other person interested in the estate (#ule )4+ ) may petition for probate. Aote that any interested person may apply for probate+ with or witout possession of the will. Aote there is no deadline in filing a petition for probate. However+ an e&ecutor should present a will within "9 days from 7nowledge of the testator2s death. Special rules when the testator applies for probate himself . notice sent only to his compulsory heirs (#ule )4 Sec. *) ." no witnesses re<uired even if the will is contested (#ule )4 Sec. ") .> probate may not be denied on the ground of preterition JPalacios v. Catimbang Palacios+ 94 Phil. )>$ ( $@$)K

d. 9(o +a oppose petition "Rule #? Sec. &B%

Sec. &B. &ontestant to file grounds of contest. An one appearing to contest t(e )ill +ust state in )riting (is grounds !or opposing its allo)ance3 and ser'e a cop t(ereo! on t(e petitioner and ot(er parties interested in t(e estate. :hether testsate or intestate+ the only persons who may oppose the petition are those who may inherit by intestacy.

e. Grounds !or opposition "Rule #?3 C@%

Sec. @. "rounds for disallowing will. -(e )ill s(all be disallo)ed in an o! t(e !ollo)ing cases, I! not e6ecuted and attested as re7uired b la), I! t(e testator )as insane3 or ot(er)ise +entall incapable to +a1e a )ill3 at t(e ti+e o! its e6ecution, I! it )as e6ecuted under duress3 or t(e in!luence o! !ear3 or t(reats, I! it )as procured b undue and i+proper pressure and in!luence3 on t(e part o! t(e bene!iciar 3 or o! so+e ot(er person !or (is bene!it, I! t(e signature o! t(e testator )as procured b !raud or tric13 and (e did not intend t(at t(e instru+ent s(ould be (is )ill at t(e ti+e o! !i6ing (is signature t(ereto.

5. 2urisdictional Re7uire+ents !or Probate o! 9ill a. Rule #? Sec. ;

Sec. ;. &ourt to appoint time for proving will. 5otice thereof to be published. 9(en a )ill is deli'ered to3 or a petition !or t(e allo)ance o! a )ill is !iled in3 t(e court (a'ing jurisdiction3 suc( court s(all !i6 a ti+e and place !or pro'ing t(e )ill )(en all concerned +a appear to contest t(e allo)ance t(ereo!3 and s(all cause notice o! suc( ti+e and place to be publis(ed t(ree ";% )ee1s successi'el 3 pre'ious to t(e ti+e appointed3 in a ne)spaper o! general circulation in t(e pro'ince. 4ut no ne)spaper publication s(all be +ade )(ere t(e petition !or probate (as been !iled b t(e testator (i+sel!.

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-urisdictional re<uirements for probate of will . hearing ." publication+ unless petition for probate has been filed by the testator himself

b. Cases Santos v. &astillo# (2 Phil. $)) *)+%01he applicant for probate should be the e&ecutor+ or a person who has custody of the will to be probated. ? 1his had been abrogated by the rules (p. @ 3,@ $ (oran)

'odrigue4 v. Borja# )0 S&'A 2), *)+((Probate 'urisdiction vests upon delivery of the will to the court+ even if no petition for its allowance was filed until later+ because by then the ;ourt could+ motu proprio+ have ta7en steps to fi& the time and place for proving the will. de 0eon5 Rodriguez said mere delivery of the will vests the court with 'urisdiction to the e&clusion of other courts+ while ;uenco said it is when the court ta7es cogni6ance that it e&cludes other courts. =urthermore+ Eusebio said the principle of e&clusion applies only to estates of non,inhabitants.

Pere4 v. Pere4# )61 Phil. ))%$ *)+1+;ourt ac<uires 'urisdiction over all persons interested in the estate through publication. =ailure to serve notice on distributees is a mere procedural+ not a 'urisdictional+ error.

Basa v.

ercado# () Phil. (%$ *)+%1-

Publication for > wee7s does not re<uire " days to pass. Publication need only be on > separate wee7s. 1o de deemed a newspaper of general circulation+ such newspaper should . Aot be for a particular class+ profession+ trade+ calling+ race or religious denomination. ." Fe published for dissemination of local news and general information. .> Fe published at regular intervals. 1he custodian of the will should li7ewise be stated.

=. Contents o! petition
Rule #?3 Sec. $. &ontents of petition. A petition !or t(e allo)ance o! a )ill +ust s(o)3 so !ar as 1no)n to t(e petitioner* "a% -(e jurisdictional !acts, "b% -(e na+es3 ages3 and residences o! t(e (eirs3 legatees3 and de'isees o! t(e testator or decedent, "c% -(e probable 'alue and c(aracter o! t(e propert o! t(e estate, "d% -(e na+e o! t(e person !or )(o+ letters are pra ed,

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"e% I! t(e )ill (as not been deli'ered to t(e court3 t(e na+e o! t(e person (a'ing custod o! it. 4ut no de!ect in t(e petition s(all render 'oid t(e allo)ance o! t(e )ill3 or t(e issuance o! letters testa+entar or o! ad+inistration )it( t(e )ill anne6ed. Fautista5 Prayer for relief

?. Notice and Process "Rule #? Sec. 5%

Sec. 5. 7eirs# devisees# legatees# and executors to be notified by mail or personally. -(e court s(all also cause copies o! t(e notice o! t(e ti+e and place !i6ed !or pro'ing t(e )ill to be addressed to t(e designated or ot(er 1no)n (eirs3 legatees3 and de'isees o! t(e testator resident in t(e P(ilippines at t(eir places o! residence3 and deposited in t(e post o!!ice )it( t(e postage t(ereon prepaid at least t)ent "$B% da s be!ore t(e (earing3 i! suc( places o! residence be 1no)n. A cop o! t(e notice +ust in li1e +anner be +ailed to t(e person na+ed as e6ecutor3 i! (e be not be petitioner, also3 to an person na+ed as co8e6ecutor not petitioning3 i! t(eir places o! residence be 1no)n. Personal ser'ice o! copies o! t(e notice at least ten "&B% da s be!ore t(e da o! (earing s(all be e7ui'alent to +ailing. I! t(e testator as1s !or t(e allo)ance o! (is o)n )ill3 notice s(all be sent onl to (is co+pulsor (eirs.

a. 9(at notices to be sent

Aotice of time and place of hearing. -urisdiction over the parties is ac<uired by mere publication in a newspaper of general circulation because it is proceeding in rem.

b. -o )(o+ notices to be sent

:here the testator is a resident+ notices are sent to . non,petitioning e&ecutors ." designated heirs .> other 7nown heirs .* legatees+ and devisees .@ only compulsory heirs+ if the testator is the applicant de 0eon5 :hat is the point of notifying the compulsory heirs when the testator is the applicant if they can2t not oppose on the ground of preterition J Palacios v. Catimbang Palacios+ 94 Phil. )>$ ( $@$)K M de 0eon5 In case the testator is not a resident and his will had been probated abroad+ the notice re<uirements are provided by #ule )) Sec. "
Sec. ". otice of !earing for allo"ance. :hen a copy of such will and of the order or decree of the allowance thereof+ both duly authenticated+ are filed with a petition for allowance in the Philippines+ by the e&ecutor or other person interested+ in the court having 'urisdiction+ such court shall fi& a time and place for the hearing+ and cause notice thereof to be given as in case of an original will presented for allowance.

c. .o) notices to be sent

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">

Aotices may be sent . by mail with the postage prepaid at least "9 days before hearing+ if such places of residence be 7nown+ or

." Personal service at least 9 days before hearing

#. .earing on Petition a. Proo!s re7uired on Probate .earing &% Rule #? Secs. =3 ?3 #3 A3 &&3 &$
Sec. =. Proof at hearing. =hat sufficient in absence of contest. At t(e (earing co+pliance )it( t(e pro'isions o! t(e last t)o preceding sections +ust be s(o)n be!ore t(e introduction o! testi+on in support o! t(e )ill. All suc( testi+on s(all be ta1en under oat( and reduced to )riting. I! no person appears to contest t(e allo)ance o! t(e )ill3 t(e court +a grant allo)ance t(ereo! on t(e testi+on o! one o! t(e subscribing )itnesses onl 3 i! suc( )itness testi! t(at t(e )ill )as e6ecuted as is re7uired b la). In t(e case o! a (olograp(ic )ill3 it s(all be necessar t(at at least one )itness )(o 1no)s t(e (and)riting and signature o! t(e testator e6plicitl declare t(at t(e )ill and t(e signature are in t(e (and)riting o! t(e testator. In t(e absence o! an suc( co+petent )itness3 and i! t(e court dee+ it necessar 3 e6pert testi+on +a be resorted to. Sec. ?. Proof of lost or destroyed will. &ertificate thereupon. No )ill s(all be pro'ed as a lost or destro ed )ill unless t(e e6ecution and 'alidit o! t(e sa+e be establis(ed3 and t(e )ill is pro'ed to (a'e been in e6istence at t(e ti+e o! deat( o! t(e testator3 or is s(o)n to (a'e been !raudulentl or accidentall destro ed in t(e li!eti+e o! t(e testator )it(out (is 1no)ledge3 nor unless its pro'isions are clearl and distinctl pro'ed b at least t)o "$% credible )itnesses. 9(en a lost )ill is pro'ed3 t(e pro'isions t(ereo! +ust be distinctl stated and certi!ied b t(e judge3 under t(e seal o! t(e court3 and t(e certi!icate +ust be !iled and recorded as ot(er )ills are !iled and recorded. Sec. #. Proof when witnesses do not reside in province. I! it appears at t(e ti+e !i6ed !or t(e (earing t(at none o! t(e subscribing )itnesses resides in t(e pro'ince3 but t(at t(e deposition o! one or +ore o! t(e+ can be ta1en else)(ere3 t(e court +a 3 on +otion3 direct it to be ta1en3 and +a aut(ori/e a p(otograp(ic cop o! t(e )ill to be +ade and to be presented to t(e )itness on (is e6a+ination3 )(o +a be as1ed t(e sa+e 7uestions )it( respect to it3 and to t(e (and)riting o! t(e testator and ot(ers3 as )ould be pertinent and co+petent i! t(e original )ill )ere present. Sec. A. Proof when witnesses dead or insane or do not reside in the Philippines. I! it appears at t(e ti+e !i6ed !or t(e (earing t(at t(e subscribing )itnesses are dead or insane3 or t(at none o! t(e+ resides in t(e P(ilippines3 t(e court +a ad+it t(e testi+on o! ot(er )itnesses to pro'e t(e sanit o! t(e testator3 and t(e due e6ecution o! t(e )ill, and as e'idence o! t(e e6ecution o! t(e )ill3 it +a ad+it proo! o! t(e (and)riting o! t(e testator and o! t(e subscribing )itnesses3 or o! an o! t(e+. Sec. &&. Subscribing witnesses produced or accounted for where will contested. I! t(e )ill is contested3 all t(e subscribing )itnesses3 and t(e notar in t(e case o! )ills e6ecuted under t(e Ci'il Code o! t(e P(ilippines3 i! present in t(e P(ilippines and not insane3 +ust be

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produced and e6a+ined3 and t(e deat(3 absence3 or insanit o! an o! t(e+ +ust be satis!actor s(o)n to t(e court. I! all or so+e o! suc( )itnesses are present in t(e P(ilippines but outside t(e pro'ince )(ere t(e )ill (as been !iled3 t(eir deposition +ust be ta1en. I! an or all o! t(e+ testi! against t(e due e6ecution o! t(e )ill3 or do not re+e+ber (a'ing attested to it3 or are ot(er)ise o! doubt!ul credibilit 3 t(e )ill +a 3 ne'ert(eless3 be allo)ed i! t(e court is satis!ied !ro+ t(e testi+on o! ot(er )itnesses and !ro+ all t(e e'idence presented t(at t(e )ill )as e6ecuted and attested in t(e +anner re7uired b la). I! a (olograp(ic )ill is contested3 t(e sa+e s(all be allo)ed i! at least t(ree ";% )itnesses )(o 1no) t(e (and)riting o! t(e testator e6plicitl declare t(at t(e )ill and t(e signature are in t(e (and)riting o! t(e testator, in t(e absence o! an co+petent )itness3 and i! t(e court dee+ it necessar 3 e6pert testi+on +a be resorted to. Sec. &$. Proof where testator petitions for allowance of holographic will. 9(ere t(e testator (i+sel! petitions !or t(e probate o! (is (olograp(ic )ill and no contest in !iled3 t(e !act t(at (e a!!ir+s t(at t(e (olograp(ic )ill and t(e signature are in (is o)n (and)riting3 s(all be su!!icient e'idence o! t(e genuineness and due e6ecution t(ereo!. I! t(e (olograp(ic )ill is contested3 t(e burden o! dispro'ing t(e genuineness and due e6ecution t(ereo! s(all be on t(e contestant. -(e testator +a 3 in (is turn3 present suc( additional proo! as +a be necessar to rebut t(e e'idence !or t(e contestant.

9itnesses re7uired
. Aotarial will .a uncontested5 only one subscribing witness is re<uired (#ule )4+ @) .b contested5 all subscribing witnesses+ plus the notary is re<uired (#ule )4+ ) .c if the testator as7s for the allowance of is own will5 notice should be given only to the compulsory heirs (#ule )4+ *)C no need to present other witnesses even if will is contested (#ule )4+ ") If the subscribing witness is not in the province+ have hisNher deposition ta7en. ." Holographic will .a uncontested5 at least one witness who 7nows the handwriting and signature of the testator e&plicitly declare that the will and signature are in the handwriting of the testatorC in hisNher absence+ introduce a handwriting e&pert (#ule )4+ @) .b contested5 at least three witnesses who 7now the handwriting of the testatorC in their absence+ introduce a handwriting e&pert (#ule )4+ ) .> 0ost or destroyed will ? At least " credible witnesses should prove that .a %&ecution and validity of the will .b 1he will2s e&istence at the time of testator2s death+ or its fraudulent or accidental destruction in the lifetime of the testator without his 7nowledge .c ;lear and distinct proof of the will2s provisions .d A copy+ if the lost will was holographic

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$% Cases &abang v. !elfinado# %2 Phil. $+) *)+)(If the will is contested+ the proponent is obligated to present all subscribing witnesses able to testify. =ailure to do so will be fatal to probate.

Aldanese v. Salutillo# 20 Phil. 12, @)+$1It is testimony+ not physical presence+ that is re<uired of subscribing witnesses. 8epositions will suffice.

/da. de 'amos v. &A# ,) S&'A %+% *)+0,1he declaration of the subscribing witness+ being forced witnesses+ against the probate of a will is not conclusive on the proponent. 1he proponent may present other proof of due e&ecution+ e.g. testimony of the notary public and another lawyer. Although the attesting witnesses are the best witnesses as to the due e&ecution of the will+ their testimony may be overcome by competent and more credible evidence. de 0eon5 Aote that this is an additional e&ception to the general rule in evidence that an offeror is bound by the testimony of his witness (#ule >" Sec. "). de 0eon5 In case of contest+ Cabang ruled that any competent subscribing witness must testify. Aldanese ruled that testimony need not be at the probate hearing+ but may be through depositions. #da. de Ramos ruled that in case any or all of them testified against the proponent+ the proponent may resort to other evidence to prove the due e&ecution of the will.

"ago v.

amuyac# 2+ Phil. +6$ *)+$0-

1he proponent has the burden to prove the e&istence of the will if he see7s to have a carbon copy of a holographic will was admitted to probate.

"an v. Aap# )62 Phil. 16+ *)+1,;ontents of a holographic will may not be proved by parole evidence.

'odelas v. Aran4a# ))+ S&'A )( *)+,$;ontents of a holographic will may be proved by a copy. In Rodelas+ there was a copy of the holographic will. In $an+ there was no such copy. In fact+ a footnote in $an ac7nowledged that the lost holographic will may be proved had there been a copy.

b. Scope o! In7uir on Proceeding to Probate a 9ill "Rule #?% aninang v. &A# ))2 S&'A 206 *)+,$:here a compulsory heir in the direct line was alleged to have been preterited+ but the proponent insists on a ruling on the e&trinsic validity of a will+ the court can not rule on the issue of preterition. In this case+ the general rule that in a probate of a will+ the court is limited to the e&trinsic validity of the will+ applies. 1he e&ception applies only if practical considerations so demanded+ e.g. the parties shunted aside the issue of whether or not the will should be allowed

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probate. =urthermore+ if the issue is whether there was preterition or a defective disinheritance+ the court must first rule on the e&trinsic validity of the will. If there was intentional preterition of a compulsory heir in the direct line+ -ustice Herrera says this is an act of disinheritance. If there is a preterition+ the legitimes would be given and the legacies would remain. If there was an invalid disinheritance+ the .disinherited/ heir would get the e&tent of the portion of his supposed inheritance.

Acain v. :A&# )11 S&'A )66 *)+,0Standing to intervene in a will is dependent on interest in the estate. A legatee in a void will has no standing to intervene in the intestate proceedings if he is not an intestate heir. :here a compulsory heir was not at all mentioned in+ the will will be denied probate. 1he institution of heir is annulled only if a compulsory heir in the direct line is not mentioned in the will at all. Hence+ if only the widow was preterited+ then the nephew would have standing. If the petition is for letters of administration+ the petitioner need not be an heir. %ven a creditor may file such petition.

A. 4inding :orce o! -rial Court Order Allo)ing or Disallo)ing a 9ill a. Rule #?3 Sec. &;
Sec. &;. &ertificate of allowance attached to proved will. 8o be recorded in the ?ffice of 'egister of !eeds. I! t(e court is satis!ied3 upon proo! ta1en and !iled3 t(at t(e )ill )as dul e6ecuted3 and t(at t(e testator at t(e ti+e o! its e6ecution )as o! sound and disposing +ind3 and not acting under duress3 +enace3 and undue in!luence3 or !raud3 a certi!icate o! its allo)ance3 signed b t(e judge3 and attested b t(e seal o! t(e court s(all be attac(ed to t(e )ill and t(e )ill and certi!icate !iled and recorded b t(e cler1. Attested copies o! t(e )ill de'ising real estate and o! certi!icate o! allo)ance t(ereo!3 s(all be recorded in t(e register o! deeds o! t(e pro'ince in )(ic( t(e lands lie.

b. Cases analo v. Paredes# 20 Phil. +%, *)+$1A will can not be submitted for probate if a withdrawal of a previous petition had been approved by the court+ even if the withdrawal was based on an agreement by the parties. Fautista5 In this case+ the S; impliedly held that the parties may stipulate as to the testamentary capacity of the testator. 1he court impliedly recogni6ed that the parties may disregard the will.

@. Allo)ance o! 9ill Pro'ed Outside o! P(ilippines and Ad+inistration o! Estate t(ereunder a. Rule ##
Sec. &. =ill proved outside Philippines may be allowed here. 9ills pro'ed and allo)ed in a !oreign countr 3 according to t(e la)s o! suc( countr 3 +a be allo)ed3 !iled3 and recorded b t(e proper Court o! :irst Instance in t(e P(ilippines.

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Sec. $. 5otice of hearing for allowance. 9(en a cop o! suc( )ill and o! t(e order or decree o! t(e allo)ance t(ereo!3 bot( dul aut(enticated3 are !iled )it( a petition !or allo)ance in t(e P(ilippines3 b t(e e6ecutor or ot(er person interested3 in t(e court (a'ing jurisdiction3 suc( court s(all !i6 a ti+e and place !or t(e (earing3 and cause notice t(ereo! to be gi'en as in case o! an original )ill presented !or allo)ance. Sec. ;. =hen will allowed# and effect thereof. I! it appears at t(e (earing t(at t(e )ill s(ould be allo)ed in t(e P(ilippines3 t(e court s(all so allo) it3 and a certi!icate o! its allo)ance3 signed b t(e judge3 and attested b t(e seal o! t(e court3 to )(ic( s(all be attac(ed a cop o! t(e )ill3 s(all be !iled and recorded b t(e cler13 and t(e )ill s(all (a'e t(e sa+e e!!ect as i! originall pro'ed and allo)ed in suc( court. Sec. 5. Estate# how administered. 9(en a )ill is t(us allo)ed3 t(e court s(all grant letters testa+entar 3 or letters o! ad+inistration )it( t(e )ill anne6ed3 and suc( letters testa+entar or o! ad+inistration3 s(all e6tend to all t(e estate o! t(e testator in t(e P(ilippines. Suc( estate3 a!ter t(e pa +ent o! just debts and e6penses o! ad+inistration3 s(all be disposed o! according to suc( )ill3 so !ar as suc( )ill +a operate upon it, and t(e residue3 i! an 3 s(all be disposed o! as is pro'ided b la) in cases o! estates in t(e P(ilippines belonging to persons )(o are in(abitants o! anot(er state or countr .

b. Cases Suntay v. Suntay# +1 Phil. 166 *)+12=or a will probated abroad be allowed probate here+ must prove5 . the foreign court was a probate court ." the probate procedure in the foreign 'urisdiction .> legal re<uirements for the e&ecution of a will had been complied. Since there was no proof of the foreign law in this case+ it was presumed to be the same as in #P. Since the will failed to comply with the Philippine re<uirements for probate of a will (notice to all interested parties)+ the S; disallowed the will previously probated abroad. de 0eon5 Fut it has been ruled that failure to notify is merely a procedural error which does not affect the 'urisdiction of the court. It is publication which confers probate 'urisdiction+ failure of which is fatal to the probate.

Leon B "he44ie v.

anufacturers Life :ns. &o.# +6 Phil. 21+ *)+1)-

Administration e&tends 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 property in another state or country. Fautista5 :hat is the difference between a domiciliary (principal administration) and anciliary administratorM

&B.Letters -esta+entar Issued a. Rule #A

and o! Ad+inistration3 )(en and to )(o+

Sec. &. =ho are incompetent to serve as executors or administrators. No person is co+petent to ser'e as e6ecutor or ad+inistrator )(o* "a% Is a +inor,
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"b% Is not a resident o! t(e P(ilippines, and "c% Is in t(e opinion o! t(e court un!it to e6ecute t(e duties o! t(e trust b reason o! drun1enness3 i+pro'idence3 or )ant o! understanding or integrit 3 or b reason o! con'iction o! an o!!ense in'ol'ing +oral turpitude.

Dis7uali!ications o! an e6ecutor>ad+inistrator
. ." .> .* .@ .4 .) minority non,resident drun7enness (habitual or e&cessive to an e&tent as to cloud the mind) improvidence want of understanding want of integrity conviction of an offense involving moral turpitude. (something immoral in itself despite the fact that it is punishable under the #P;+ must not only be mala prohibitum but also mala in se) (estafa with FP""+ murder+ drug addiction+ drug possession+ ! drug pushing)

Sec. $. Executor of executor not to administer estate. -(e e6ecutor o! an e6ecutor s(all not3 as suc(3 ad+inister t(e estate o! t(e !irst testator. Sec. ;. arried women may serve. A +arried )o+an +a ser'e as e6ecutri6 or ad+inistratri63 and t(e +arriage o! a single )o+an s(all not a!!ect (er aut(orit so to ser'e under a pre'ious appoint+ent. Sec. 5. Letters testamentary issued when will allowed. 9(en a )ill (as been pro'ed and allo)ed3 t(e court s(all issue letters testa+entar t(ereon to t(e person na+ed as e6ecutor t(erein3 i! (e is co+petent3 accepts t(e trust3 and gi'es bond as re7uired b t(ese rules. Sec. =. =here some coexecutors disCualified others may act. 9(en all o! t(e e6ecutors na+ed in a )ill can not act because o! inco+petenc 3 re!usal to accept t(e trust3 or !ailure to gi'e bond3 on t(e part o! one or +ore o! t(e+3 letters testa+entar +a issue to suc( o! t(e+ as are co+petent3 accept and gi'e bond3 and t(e +a per!or+ t(e duties and disc(arge t(e trust re7uired b t(e )ill. Sec. ?. =hen and to whom letters of administration granted. I! no e6ecutor is na+ed in t(e )ill3 or t(e e6ecutor or e6ecutors are inco+petent3 re!use t(e trust3 or !ail to gi'e bond3 or a person dies intestate3 ad+inistration s(all be granted* "a% -o t(e sur'i'ing (usband or )i!e3 as t(e case +a be3 or ne6t o! 1in3 or bot(3 in t(e discretion o! t(e court3 or to suc( person as suc( sur'i'ing (usband or )i!e3 or ne6t o! 1in3 re7uests to (a'e appointed3 i! co+petent and )illing to ser'e, "b% I! suc( sur'i'ing (usband or )i!e3 as t(e case +a be3 or ne6t o! 1in3 or t(e person selected b t(e+3 be inco+petent or un)illing3 or i! t(e (usband or )ido)3 or ne6t o! 1in3 neglects !or t(irt ";B% da s a!ter t(e deat( o! t(e person to appl !or ad+inistration or to re7uest t(at ad+inistration be granted to so+e ot(er person3 it +a be granted to one or +ore o! t(e principal creditors3 i! co+petent and )illing to ser'e, "c% I! t(ere is no suc( creditor co+petent and )illing to ser'e3 it +a be granted to suc( ot(er person as t(e court +a select.

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0%11%#S 1%S1A(%A1%#O ? issued only to the e&ecutor. 1here is a valid will and a valid e&ecutor. 0%11%#S E= A8(IAIS1#A1IEA ? issued to the administrator. 1here is no valid will. 0%11%#S E= A8(IAIS1#A1IEA :I1H A :I00 A11A;H%8 ? issued to the administrator. 1here is a valid will but no valid e&ecutor.

Priorit in selecting an ad+inistrator

. surviving spouse+ or ne&t of 7in+ or both+ or person as such surviving spouse+ or ne&t of 7in+ re<uests

." one or more of the principal creditors ? if such surviving spouse+ or ne&t of 7in+ or the person selected+ be incompetent or unwilling+ or if they neglect for >9 days after the death of the decedent to apply for administration or to re<uest that administration be granted to some other person+ it may be granted to+ if competent and willing to serveC .> such other person as the court may select.

b. Cases ?4aeta v. Pecson# +% Phil. 2)( *)+1%Pending appeal of a decision admitting the will to probate+ the e&ecutor named in the will should be appointed special administrator. 1he order of preference for choosing a Special Administrator is same as that of a regular administrator. It is also not mandatory.

5go 8he 7ua v. &hung >iat 7ua# + S&'A ))% *)+(%If there is issue as to validity of marriage or filiation+ there should be a provisional determination of relationship between the deceased and parties claiming the right to be appointed an administrator before an administrator is actually appointed.

8orres v. 3avier# %2 Phil. %,$ *)+)(:here there is a dispute as to who between " people is the surviving spouse+ the court is authori6ed to appoint a disinterested >rd person as administrator.

8orres v. Sicat# +% Phil. )11 *)+1%1he order of preference is not mandatory. However+ mere re<uiring proof of credit before paying it is not enough reason to disregard the order of preference.

!e "u4man v. Limcolioc# (0 Phil. 262 *)+%+=acts5 8ecedent2s child from a st marriage was appointed administrator. "nd wife and widow opposed on the ground that she has preference. Held5 Preference for the widow fails in the e&istence of another person with more interest. 1he presumed interest of the widow is based on the assumption that she has a share in the con'ugal partnership. In this case+ the decedent ac<uired all of his property during his st marriage and none during the "nd. 1herefore+ a child from the st marriage will have more interest in the estate than the widow. 1he child should therefore be appointed administrator.

"abriel v. &A# $)$ S&'A 2)% *)++$(ere failure of the surviving spouse or ne&t of 7in to apply for letters of administration within >9 days after the decedent2s death is not sufficient ground to negate his preference in the selection

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of administrator. An admininstrator may be removed only for 'ust cause. (ere opportunity for mischief is not ground for removal of an administrator. 1he appointment of co,administrators has been upheld for various reasons+ vi65 ( ) to have the benefit of their 'udgment and perhaps at all times to have different interests representedC (") where 'ustice and e<uity demand that opposing parties or factions be represented in the management of the estate of the deceasedC (>) where the estate is large or+ from any cause+ an intricate and perple&ing one to settleC (*) to have all interested persons satisfied and the representatives to wor7 in harmony for the best interests of the estateC and (@) when a person entitled to the administration of an estate desires to have another competent person associated with him in the office.

&&.Opposing Issuance o! Letters -esta+entar . Petition and Contest !or Letters o! Ad+inistration a. Rule #@
Sec. &. ?pposition to issuance of letters testamentary. Simultaneous petition for administration. An person interested in a )ill +a state in )riting t(e grounds )( letters testa+entar s(ould not issue to t(e persons na+ed t(erein e6ecutors3 or an o! t(e+3 and t(e court3 a!ter (earing upon notice3 s(all pass upon t(e su!!icienc o! suc( grounds. A petition +a 3 at t(e sa+e ti+e3 be !iled !or letters o! ad+inistration )it( t(e )ill anne6ed. Sec. $. &ontents of petition for letters of administration. A petition !or letters o! ad+inistration +ust be !iled b an interested person and +ust s(o)3 so !ar as 1no)n to t(e petitioner* "a% -(e jurisdictional !acts, (death of the testator "b% -(e na+es3 ages3 and residences o! t(e (eirs3 and t(e na+es and residences o! t(e creditors3 o! t(e decedent "c% -(e probable 'alue and c(aracter o! t(e propert o! t(e estate, "d% -(e na+e o! t(e person !or )(o+ letters o! ad+inistration are pra ed. 4ut no de!ect on t(e petition s(all render 'oid t(e issuance o! letters o! ad+inistration. Sec. ;. &ourt to set time for hearing. 5otice thereof. 9(en a petition !or letters o! ad+inistration is !iled in t(e court (a'ing jurisdiction3 suc( court s(all !i6 a ti+e and place !or (earing t(e petition3 and s(all cause notice t(ereo! to be gi'en to t(e 1no)n (eirs and creditors o! t(e decedent3 and to an ot(er persons belie'ed to (a'e an interest in t(e estate3 in t(e +anner pro'ided in section ; and 5 o! Rule #?. Sec. 5. ?pposition to petition for administration. An interested person +a 3 b !iling a )ritten opposition3 contest t(e petition on t(e ground o! t(e inco+petenc o! t(e person !or )(o+ letters are pra ed t(erein3 or on t(e ground o! t(e contestant<s o)n rig(t to t(e ad+inistration3 and +a pra t(at letters issue to (i+sel!3 or to an co+petent person or persons na+ed in t(e opposition. Sec. =. 7earing and order for letters to issue. At t(e (earing o! t(e petition3 it +ust !irst be s(o)n t(at notice (as been gi'en as (ereinabo'e re7uired3 and t(erea!ter t(e court s(all (ear t(e proo!s o! t(e parties in support o! t(eir respecti'e allegations3 and i! satis!ied t(at t(e decedent le!t no )ill3 or t(at t(ere is no co+petent and )illing e6ecutor3 it s(all order t(e issuance o! letters o! ad+inistration to t(e part best entitled t(ereto.
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Sec. ?. =hen letters of administration granted to any applicant. Letters o! ad+inistration +a be granted to an 7uali!ied applicant3 t(oug( it appears t(at t(ere are ot(er co+petent persons (a'ing better rig(t to t(e ad+inistration3 i! suc( persons !ail to appear )(en noti!ied and clai+ t(e issuance o! letters to t(e+sel'es.

b. Case !uran v. !uran# $6 S&'A %0+ *)+(0An oppositor to issuance of letters of administration should have an interest in the intestate estate. 1he special administrator should be an interested party.

9ilipinas Shell Petroleum &orp. v. !umlao# $6( S&'A 26 *)++$Interest in the estate of a person who initiates probate proceedings is not a 'urisdictional fact. It is a ground for a motion to dismiss not on the ground of lac7 of 'urisdiction+ but lac7 of legal capacity to institute the proceedings. =urthermore+ ob'ection to the petition for letters of administration on that ground may be barred by estoppel or waiver+ e.g. see7ing favorable rulings from the probate court.

&$.Rule AB* Special Ad+inistrator

Regular Administrator Special Administrator the prescriptive period to pay debts does not run until a regular (general) administrator is appointed. The powers to sell are not limited to perishable property only. may be sued by creditors.

a. Circu+stances Ad+inistrator &% Rule AB Sec. &

9arranting

Appoint+ent

o!

Special

Sec. &. Appointment of special administrator. 9(en t(ere is dela in granting letters testa+entar or o! ad+inistration b an cause including an appeal !ro+ t(e allo)ance or disallo)ance o! a )ill3 t(e court +a appoint a special ad+inistrator to ta1e possession and c(arge o! t(e estate o! t(e deceased until t(e 7uestions causing t(e dela are decided and e6ecutors or ad+inistrators appointed. Note5 Special Administrators are officers of the court. 1hus+ government employees+ li7e cler7 of courts are not <ualified as special administrators.

Grounds !or appointing a special ad+inistrator

. delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will ." regular administrator has claims against the estate (#ule 34+ Sec. 3)
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$% Cases !e "u4man v. "uadi4# +( 1&'A +%, *)+,68elay in granting letters testamentary for .any cause/ which would warrant appointment of a general admininstrator includes delay caused by an opposition to the probate on the ground that the properties of the estate were allegedly donated to the oppositor. Ether e&amples of delay are5 . ." .> .* ;ontest to the will is pending Appeal regarding the removal of an administratorNe&ecutor is pending Parties can2t agree as to administrator Beneral administration can2t be granted for any cause

1he order appointing a #egular Administrator is appealable. 1he order appointing a Special Administrator is a mere interlocutory orderC therefore+ it is not appealable. However+ it is a proper sub'ect for a special civil action for certiorari.

'elucio v. San 3ose# +) Phil. %(1 *)+1$:here the appointment of a regular administrator is appealed+ a special administrator should be appointed. :here an order removing an administrator appealed+ the administrator remains pending appeal+ unless the court appoints a special administrator or orders e&ecution pending appeal.

Alcasid v. Samson# )6$ Phil. 0%1 *)+10Pending the appeal of an order for removal of a special administrator and appointment of a regular administrator+ another special administrator should be appointed. de 0eon5 %zaeta ruled that pending appeal of an order allowing probate (not the order appointing regular administrator)+ the e&ecutor or regular administrator should be appointed special administrator. In #elucio and Alcasid+ if the pending appeal is the choice of the adminstrator+ a different special administrator should be appointed.

!e "u4man v. Angeles# )($ S&'A %20 *)+,,A hearing and notice of such hearing for appointment of a special administrator is re<uired. de 0eon5 Aotice is always re<uired to confer probate 'urisdiction. 1o confer 'urisdiction over the probate proceedings the form of notice is publication. 1o confer 'urisdiction over matters within the probate proceedings (e.g. appointment of a special adminstrator) individual notice to the parties is re<uired.

b. 9(o3 and .o) Man 3 +a be Appointed Special Ad+inistrator &% Circu+stances )(ic( )arrant t(e appoint+ent o! +ore t(an & ad+inistrator
. the properties of the decedent are in different places ." there is more than faction among the heirs .> there is more than 7ind of property (i.e.+ capital and con'ugal)

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$% Cases "arcia 9ule v. &A# 02 S&'A ),+ *)+0(1he preference in appointing regular administrators is the same as appointing special administrators. 1he surviving spouse is still preferred.

Pijuan v. /da. de "urrea# ), S&'A ,+, *)+((1he preference accorded to the surviving spouse operates only if there is not e&ecutor named in the will who is willing and <ualified. =urthermore+ the preference applies only to his appointment as regular administrator. 1he order in appointing a special admininstrator lies within the discretion of te probate court and is not appealable.

&orona v. &A# ))( S&'A %)( *)+,$1he purpose that the side of the decedent and that of the surviving spouse be represented in the management of the estate is sufficient ground to appoint another special administrator.

?4aeta v. Pecson# +% Phil. 2)( *)+1%1he person named e&ecutor in the will should be appointed as special administrator pending an appeal of the probate court2s order or 'udgment admitting a will to probate and appointing a 'udicial administrator.

atias v. "on4ales# )6) Phil. ,1$ *)+101he court has the power to appoint multiple special administrators for the whole of the estate.

'oxas v. Pecson# ,$ Phil. 260 *)+2,1he court can not appoint one special administrator for a set of properties+ and another special administrator for another set of properties. Fautista5 1he order of preference is mandatory for the appointment of the regular administrator+ but is merely a guideline in the appointment of a special administrator. Although the court has the discretion to appoint the special administrator+ such discretion should be e&ercised within reasonable limits. de 0eon5 Fut in &orres v. Sicat+ $> Phil. @@ ( $@>)+ the S; ruled that the order of preference for appointing regular administrator is not mandatory.

c. Po)ers and Liabilities o! Special Ad+inistrator &% Rule AB Sec. $

Sec. $. Powers and duties of special administrator. Suc( special ad+inistrator s(all ta1e possession and c(arge o! goods3 c(attels3 rig(ts3 credits3 and estate o! t(e deceased and preser'e t(e sa+e !or t(e e6ecutor or ad+inistrator a!ter)ards appointed3 and !or t(at purpose +a co++ence and +aintain suits as ad+inistrator. .e +a sell onl suc( peris(able and ot(er propert (personal property only. He cannot sell real property even if ordered by the court. Such orders are null ! void) as t(e court orders sold. A special ad+inistrator s(all not be liable to pa an debts o! t(e deceased unless so ordered b t(e court. (debts ordered by the court to be paid need not be ratified by the regular administrator)

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$% Cases Anderson v. Per.ins# ) S&'A %,0 *)+()1he power of the special administrator to sell is not limited to perishable properties only. He can also sell .other property as the court orders sold./

Liwanag v. 'eyes# )$ S&'A 2% *)+(2A special administrator may be made a defendant 'ust li7e a regular administrator.

d. Re+o'al o! Special Ad+inistrator &% Rule AB Sec. ;

Sec. ;. =hen powers of special administrator cease. 8ransfer of effects. Pending suits. 9(en letters testa+entar or o! ad+inistration are granted on t(e estate o! t(e deceased3 t(e po)ers o! t(e special ad+inistrator s(all cease3 and (e s(all !ort()it( deli'er to t(e e6ecutor or ad+inistrator t(e goods3 c(attels3 +one 3 and estate o! t(e deceased in (is (ands. -(e e6ecutor or ad+inistrator +a prosecute to !inal judg+ent suits co++enced b suc( special ad+inistrator.

$% Cases Alcasid v. Samson# )6$ Phil. 0%1 *)+10Pending the appeal of an order for removal of a special administrator and appointment of a regular administrator+ another special administrator should be appointed.

3unCuera v. Borromeo# ++ Phil. $0( *)+1(=ailure to file an inventory of the estate within a reasonable period is a ground for removal of a special administrator.

&;.4onds o! E6ecutors and Ad+inistrators a. Rule A&

Sec. &. Bond to be given before issuance of letters. Amount. &onditions. 4e!ore an e6ecutor or ad+inistrator enters upon t(e e6ecution o! (is trust3 and letters testa+entar or o! ad+inistration issue3 (e s(all gi'e a bond3 in suc( su+ as t(e court directs3 conditioned as !ollo)s* "a% -o +a1e and return to t(e court3 )it(in t(ree ";% +ont(s3 a true and co+plete in'entor o! all goods3 c(attels3 rig(ts3 credits3 and estate o! t(e deceased )(ic( s(all co+e to (is possession or 1no)ledge or to t(e possession o! an ot(er person !or (i+, "b% -o ad+inister according to t(ese rules3 and3 i! an e6ecutor3 according to t(e )ill o! t(e testator3 all goods3 c(attels3 rig(ts3 credits3 and estate )(ic( s(all at an ti+e co+e to (is possession or to t(e possession o! an ot(er person !or (i+3 and !ro+ t(e proceeds to pa and disc(arge all debts3 legacies3 and c(arges on t(e sa+e3 or suc( di'idends t(ereon as s(all be decreed b t(e court, "c% -o render a true and just account o! (is ad+inistration to t(e court )it(in one "&% ear3 and at an ot(er ti+e )(en re7uired b t(e court, "d% -o per!or+ all orders o! t(e court b (i+ to be per!or+ed.

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Conditions o! t(e ad+inistratorDs bond > duties o! an ad+inistrator

. to ma7e and return to the court+ within > months+ a true and complete inventory of the estate which shall come to his possession or 7nowledge or to the possession of any other person for himC ." to administer the estate+ and from the proceeds to pay and discharge all debts+ legacies+ and charges+ or such dividends thereon as shall be decreed by the courtC .> to render a true and 'ust account of his administration to the court within year+ and at any other time when re<uired by the courtC .* to perform all orders of the court by him to be performed. Sec. $. Bond of executor where directed in will. =hen further bond reCuired. I! t(e testator in (is )ill directs t(at t(e e6ecutor ser'e )it(out bond3 or )it( onl (is indi'idual bond3 (e +a be allo)ed b t(e court to gi'e bond in suc( su+ and )it( suc( suret as t(e court appro'es conditioned onl to pa t(e debts o! t(e testator, but t(e court +a re7uire o! t(e e6ecutor a !urt(er bond in case a c(ange in (is circu+stances3 or !or ot(er su!!icient cause3 )it( t(e conditions na+ed in t(e last preceding section.

9(en bond +a be conditioned onl to pa t(e debts o! t(e testator E testator directs in (is )ill t(at t(e e6ecutor ser'e
. without bond+ or ." with only his individual bond Aote that the testator2s wishes is not mandatory. 1he court may re<uire of the e&ecutor a further bond in case a change in his circumstances+ or for other sufficient cause+ with the other conditions of an administrator2s bond. AE1%5 bond in Sec is in the concept of penalty for non,performance of dutiesC while bond in Sec" is in the concept of compensation. Sec. ;. Bonds of joint executors and administrators. 9(en t)o or +ore persons are appointed e6ecutors or ad+inistrators t(e court +a ta1e a separate bond !ro+ eac(3 or a joint bond !ro+ all. Sec. 5. Bond of special administrator. A special ad+inistrator be!ore entering upon t(e duties o! (is trust s(all gi'e a bond3 in suc( su+ as t(e court directs3 conditioned t(at (e )ill +a1e and return a true in'entor o! t(e goods3 c(attels3 rig(ts3 credits3 and estate o! t(e deceased )(ic( co+e to (is possession or 1no)ledge3 and t(at (e )ill trul account !or suc( as are recei'ed b (i+ )(en re7uired b t(e court3 and )ill deli'er t(e sa+e to t(e person appointed e6ecutor or ad+inistrator3 or to suc( ot(er person as +a be aut(ori/ed to recei'e t(e+.

Conditions o! special ad+inistratorDs bond

. he will ma7e and return a true inventory of the estate which come to his possession or 7nowledge+ and ." he will truly account for such as are received by him when re<uired by the court+ and .> will deliver the estate to the person appointed e&ecutor or administrator+ or to such other person as may be authori6ed to receive them. de 0eon5 Aote that the special administrator2s bond is not bound to inventory property of the estate .in the possession of any other person for him/ unli7e a regular administrator2s bond.

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b. Cases &osme de endo4a v. Pacheco# (2 Phil. )%2 *)+%01he probate court has to power to e&ecute on the administrator2s bond. 1he administrator2s bond may held liable in the proceedings for the accounting of the administrator. A separate action need not be filed.

=arner# Barnes B &o.# Ltd. v. Lu4on Surety &o.# +1 Phil. +$2 *)+121hough Mendoza v. Pac!eco ruled that the probate court has 'urisdiction to e&ecute on the bond+ it did not rule that a claim on an administrator2s bond may not be litigated in a separate action. Although the probate court has 'urisdiction over the forfeiture or enforcement of an administratorPs bond+ the same matter may be litigated in an separate ordinary civil action. Although an administratorPs bond is e&ecuted in favor of the #epublic of the Philippines+ it is e&pressly for the benefit of the heirs+ legatees and creditors. A creditor may directly in his name enforce said bond in so far as he is concerned. :here there are no proceedings for the administration of the estate of the deceased administrator+ the creditor may enforce the administrator2s bond against the surety which bound itself 'ointly and severally in the case where the bond was filed.

Lu4on Surety &o.# :nc. v. Duebrar# )$0 S&'A $+1 *)+,2=acts5 Administrator2s bond was renewable every year with indemnity agreement for all e&penses. #enewal fees and indemnifications were unpaid since the "nd year. After distribution and on motion+ court cancelled the bonds. Surety sues for the renewal fees and indemnifications from the "nd year until the bonds were cancelled. %&ecutor claims that the administrator2s bond ceased to be effective from the approval of the pro'ect of partition and the indemnification agreement ceased to be effective from the failure to pay the renewal fees. Held5 1he surety is liable under the administrator2s bond for as long as the administrator has duties to do as such e&ecutor or administrator. Hence+ the administrator is still duty bound to respect the indemnity agreements entered into by him in consideration of the suretyship. 1he e&ecutor still had duties to perform even after the approval of the pro'ect of partition. 1here were still debts and e&penses to be paid after then. An estate may be partitioned even before the termination of the administration proceedings. Partition does not terminate the administration proceedings. 1he sureties of an administration bond are liable only for matters occurring during the term covered by the bond. 1he term of a bond does not usually e&pire until the administration has been closed and terminated. As long as the probate court retains 'urisdiction of the estate+ the bond contemplates a continuing liability notwithstanding the non,renewal of the bond. Payment of the premiums and documentary stamps are not conditions precedent for the effectivity of the bonds. 1here is no provision or condition in the bond to the effect that it will terminate at the end of the st year if the premium for continuation thereafter is not paid. 1here is no clause by which its obligation is avoided or even suspended by the failure of the obligee to pay an annual premium. Fottomline5 Subse<uent default of premium does not e&onerate the surety. Aevertheless+ the administrator is still liable for the premiums. Aeither does e&piration of the term of the bond

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e&onerate the surety. 1he #ules are deemed written into the bond contract+ i.e. for the duration of the adminstration proceedings.

&5.Re'ocation o! Ad+inistration3 Deat(3 Resignation3 and Re+o'al o! E6ecutors and Ad+inistrators a. Rule A$
Sec. &. Administration revo.ed if will discovered. Proceedings thereupon. I! a!ter letters o! ad+inistration (a'e been granted on t(e estate o! a decedent as i! (e (ad died intestate3 (is )ill is pro'ed and allo)ed b t(e court3 t(e letters o! ad+inistration s(all be re'o1ed and all po)ers t(ereunder cease3 and t(e ad+inistrator s(all !ort()it( surrender t(e letters to t(e court3 and render (is account )it(in suc( ti+e as t(e court directs. Proceedings !or t(e issuance o! letters testa+entar or o! ad+inistration under t(e )ill s(all be as (ereinbe!ore pro'ided. Sec. $. &ourt may remove or accept resignation of executor or administrator. Proceedings upon death# resignation# or removal. I! an e6ecutor or ad+inistrator neglects to render (is account and settle t(e estate according to la)3 or to per!or+ an order or judg+ent o! t(e court3 or a dut e6pressl pro'ided b t(ese rules3 or absconds3 or beco+es insane3 or ot(er)ise incapable or unsuitable to disc(arge t(e trust3 t(e court +a re+o'e (i+3 or3 in its discretion3 +a per+it (i+ to resign. 9(en an e6ecutor or ad+inistrator dies3 resigns3 or is re+o'ed t(e re+aining e6ecutor or ad+inistrator +a ad+inister t(e trust alone3 unless t(e court grants letters to so+eone to act )it( (i+. I! t(ere is no re+aining e6ecutor or ad+inistrator3 ad+inistration +a be granted to an suitable person.

9(en ad+inistration re'o1ed

. (when administrator was appointed in intestate proceedings) a will is subse<uently probated ." neglects to render his account and settle the estate .> absconds+ or becomes insane+ or otherwise incapable or unsuitable to discharge the trust Sec. ;. Acts before revocation# resignation# or removal to be valid. -(e la)!ul acts an e6ecutor or ad+inistrator be!ore t(e re'ocation o! (is letters testa+entar or o! ad+inistration3 or be!ore (is resignation or re+o'al3 s(all (a'e t(e li1e 'alidit as i! t(ere (ad been no suc( re'ocation3 resignation3 or re+o'al. Sec. 5. Powers of new executor or administrator. 'enewal of license to sell real estate. -(e person to )(o+ letters testa+entar or o! ad+inistration are granted a!ter t(e re'ocation o! !or+er letters3 or t(e deat(3 resignation3 or re+o'al o! a !or+er e6ecutor or ad+inistrator3 s(all (a'e t(e li1e po)ers to collect and settle t(e estate not ad+inistered t(at t(e !or+er e6ecutor or ad+inistrator (ad3 and +a prosecute or de!end actions co++enced b or against t(e !or+er e6ecutor or ad+inistrator3 and (a'e e6ecution on judg+ents reco'ered in t(e na+e o! suc( !or+er e6ecution or ad+inistrator. An aut(orit granted b t(e court to t(e !or+er e6ecutor or ad+inistrator !or t(e sale or +ortgage o! real estate +a be rene)ed in !a'or o! suc( person )it(out !urt(er notice or (earing.

b. Case Borroeo v. Borromeo# +0 Phil. 12+ *)+11=acts5 %&ecutor fails to account for proceeds of the estate and claims as his own shares that are in the name of the decedent. He secures a postponement of the hearing of a motion to remove him.
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Fefore the postponed hearing ta7es place+ he withdraws money from the decedent2s 'oint account with him. Held5 1he withdrawal+ the failure to account for the proceeds+ and claim over the shares are enough ground to remove the e&ecutor.

endiola v. &A# )+6 S&'A 2$) *)++6=ailure to pay estate ta&+ failure to render an accounting of the estate+ and causing the estate to be sub'ect to needless litigation is sufficient ground to remove an e&ecutor. d

"on4ales v. Aguinaldo# )+6 S&'A ))$ *)++6(ere temporary absence andNor disagreements with co,administrators+ without misconduct+ is not sufficient ground for removal of a co,administrator. 1he removal of an administrator does not lie on the whims+ caprices and dictates of the heirs or beneficiaries of the estate.

&=.In'entor and Appraisal. Pro'ision !or Support o! :a+il a. Rule A;

Sec. &. :nventory and appraisal to be returned within three months. 9it(in t(ree ";% +ont(s a!ter (is appoint+ent e'er e6ecutor or ad+inistrator s(all return to t(e court a true in'entor and appraisal o! all t(e real and personal estate o! t(e deceased )(ic( (as co+e into (is possession or 1no)ledge. In t(e appraise+ent o! suc( estate3 t(e court +a order one or +ore o! t(e in(eritance ta6 appraisers to gi'e (is or t(eir assistance. Administrator should return an inventory and appraisal of the estate within > months from his appointment. Sec. $. &ertain articles not to be inventoried. -(e )earing apparel o! t(e sur'i'ing (usband or )i!e and +inor c(ildren3 t(e +arriage bed and bedding3 and suc( pro'isions and ot(er articles as )ill necessaril be consu+ed in t(e subsistence o! t(e !a+il o! t(e deceased3 under t(e direction o! t(e court3 s(all not be considered as assets3 nor ad+inistered as suc(3 and s(all not be included in t(e in'entor . Sec. ;. Allowance to widow and family. -(e )ido) and +inor or incapacitated c(ildren o! a deceased person3 during t(e settle+ent o! t(e estate3 s(all recei'e t(ere!ro+3 under t(e direction o! t(e court3 suc( allo)ance as are pro'ided b la). (the basis in substantive law is Art >> =amily ;ode)

b. Cases "arcia v. "arcia# (0 Phil. %1% *)+%+=or the purpose of determining whether a certain property should or should not be included in the inventory+ the probate court may pass upon the title thereto+ but such determination is not conclusive and is sub'ect to the final decision in a separate action to be instituted between the parties.

&ui4on v. 'amolete# )$+ S&'A 2+1 *)+,2:hen the property in <uestion was in the possession of > rd parties and more important+ covered by a 1;1 issued in the name of such > rd parties+ the court should have denied the motion of the administrator and e&cluded the property in <uestion from the inventory of the property of the

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estate. It had no authority to deprive such >rd persons of their possession and ownership of the property.

"uinguing v. Abuton# 2, Phil. )22 *)+$1:here the claims of ownership is between the adminstrator and > rd persons+ such should be settled in a separate proceeding. :here the dispute is between the administrator and an heir+ the issue may be resolved in the same proceedings. 1he inclusion of a property in the inventory does not deprive the occupant of possession. Fottomline5 If the claimiant of the party is an heir and the parties agree+ the probate court can determine the issue of ownership conclusively between them. However+ if the claimant is a stranger to the probate proceeding+ the court can resolve the issue of ownership only provisionally. (p. 3> (oran)

Sebial v. Sebial# (2 S&'A %,1 *)+011he >,month period to file an inventory is not mandatory. After the filing of a petition for the issuance of letters of administration and the publication of the notice of hearing+ the probate court ac<uires 'urisdiction over a decedentPs estate and retains that 'urisdiction until the proceeding is closed. 1he fact that an inventory was filed after the >,month period would not deprive the probate court of 'urisdiction to approve it. However+ an administratorPs une&plained delay in filing the inventory may be a ground for his removal

Pio Barretto 'ealty !evelopment# :nc. v. &A# )%) S&'A (6( *)+,2Luestions of title or ownership+ which result to inclusion in or e&clusion from the inventory can only be settled conclusively in a separate action.

Santero v. &9: of &avite# )1% S&'A 0$, *)+,0:hile the rules of court limit allowances to the widow and minor or incapacitated children+ the ;ivil ;ode (now =amily ;ode) gives the surviving spouse and his children support without distinction. Hence+ the fact that the children are of ma'ority age+ gainfully employed+ or already married is irrelevant in determining entitlement to support while the estate proceedings are being settled.

Estate of 7ilario 'ui4 v. &A# $1$ S&'A 126 *)++(Support pending estate proceedings should not be limited to minor or incapacitated children of the decedent+ but should be given to all children entitled to support (e.g. education) even those of ma'ority age. However+ substantive law (Art. 33 A;;+ now Art. >> =;) limits such support to only the surviving spouse and children. It does not e&tend to grandchildren. cf Art. >> =;
Art. >>. =rom the common mass of property support shall be given to the surviving spouse and to the children during the li<uidation of the inventoried property and until what belongs to them is deliveredC but from this shall be deducted that amount received for support which e&ceeds the fruits or rents pertaining to them. ( 33a)

&?.General Po)ers and Duties o! E6ecutors and Ad+inistrators a. Rule A5

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Sec. &. Executor or administrator to have access to partnership boo.s and property. 7ow right enforced. -(e e6ecutor or ad+inistrator o! t(e estate o! a deceased partner s(all at all ti+es (a'e access to3 and +a e6a+ine and ta1e copies o!3 boo1s and papers relating to t(e partners(ip business3 and +a e6a+ine and +a1e in'oices o! t(e propert belonging to suc( partners(ip, and t(e sur'i'ing partner or partners3 on re7uest3 s(all e6(ibit to (i+ all suc( boo1s3 papers3 and propert in t(eir (ands or control. On t(e )ritten application o! suc( e6ecutor or ad+inistrator3 t(e court (a'ing jurisdiction o! t(e estate +a order an suc( sur'i'ing partner or partners to !reel per+it t(e e6ercise o! t(e rig(ts3 and to e6(ibit t(e boo1s3 papers3 and propert 3 as in t(is section pro'ided3 and +a punis( an partner !ailing to do so !or conte+pt. Sec. $. Executor or administrator to .eep buildings in repair. An e6ecutor or ad+inistrator s(all +aintain in tenantable repair t(e (ouses and ot(er structures and !ences belonging to t(e estate3 and deli'er t(e sa+e in suc( repair to t(e (eirs or de'isees )(en directed so to do b t(e court. Sec. ;. Executor or administrator to retain whole estate to pay debts# and to administer estate not willed. An e6ecutor or ad+inistrator s(all (a'e t(e rig(t to t(e possession and +anage+ent o! t(e real as )ell as t(e personal estate o! t(e deceased so long as it is necessar !or t(e pa +ent o! t(e debts and t(e e6penses o! ad+inistration.

b. Cases alahacan v. :gnacio# )+ Phil. 2%2 *)+))1he e&ecutor or administrator has the right to ta7e possession of the estate so long as it is necessary for the payment of debts and e&penses of administration. :here there are no debts to be paid+ there is no reason for the e&ecutor2 or administrator2 ta7ing possession of the estate which should pass to the heir. If other heirs have not received their participation+ their remedy is an action for partition.

San !iego v. 5ombre# )) S&'A )(1 *)+(2Administrator has the power of administration over the estate. He may therefore enter into acts of administration li7e leasing estate property without securing any permission from the probate court. :here the lease has formally been entered into+ the court can not+ in the same proceeding+ annul and lease. :hile the duties of a 'udicial administrator and an agent are in some respects identical+ the provision on agency which limits the activity of the agent to lease real property for more than year without special power from the principal does not apply to 'udicial administrators who may lease properties without any special authority from the court. A 'udicial admininstrator is appointed by the court and is the representative not only of the court+ but also the heirs and creditors of the estate. A 'udicial administrator before entering into his duties+ is re<uired to file a bond. 1hese circumstances is not true in cases of agency. 1he agent is only answerable to his principal. 1he protection which the law gives the principal+ in limiting the powers and rights of an agent+ stems from the fact that control by the principal can only be through agreements+ whereas the acts of a 'udicial administrator are sub'ect to specific provisions of law and orders of the appointing court.

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3aroda v. &usi# $, S&'A )66, *)+(+An administrator can not appoint himself as attorney,in,fact to sell property of the estate. An order of the probate court approving such appointment is void.

=ilson v. 'ear# 11 Phil. 22 *)+%6An administrator+ without an order of the court+ has no authority to continue the business in which the deceased was engaged at the time of his death. If he does so with the funds of the estate+ he is chargeable with all the losses incurred thereby without allowing him to receive the benefit of any profits that he may ma7e. %&ecutors and administrators who do not actively labor to close the estate within " months can be deprived of compensation. Harsher measures may be his removal or his liability for damage. 1he law does not impose upon the e&ecutor or administrator a high degree of care+ but it does impose upon him ordinary and usual care+ for the want of which he is personally liable.

9abie v. Aulo# $2 Phil. $26 *)+)%1he e&ecutor or administrator can not borrow money without authority of the court+ even if it is for the benefit of the estate. In case he does+ he alone will be responsible with his own property for the debts and obligations he has contracted. 1he fact that the money was used for the benefit and improvement of the estate cannot affect a creditorPs rights+ nor is he obliged to direct his action against the estate+ but it lies directly against the administrator or e&ecutor who is alone personally responsible for the payment of the debt he contracted.

&#.Accountabilit and Co+pensation o! E6ecutors and Ad+inistrators a. Rule A=

Sec. &. Executor or administrator chargeable with all estate and income. E6cept as ot(er)ise e6pressl pro'ided in t(e !ollo)ing sections3 e'er e6ecutor or ad+inistrator is c(argeable in (is account )it( t(e )(ole o! t(e estate o! t(e deceased )(ic( (as co+e into (is possession3 at t(e 'alue o! t(e appraise+ent contained in t(e in'entor , )it( all t(e interest3 pro!it3 and inco+e o! suc( estate, and )it( t(e proceeds o! so +uc( o! t(e estate as is sold b (i+3 at t(e price at )(ic( it )as sold. Sec. $. 5ot to profit by increase or lose by decrease in value. No e6ecutor or ad+inistrator s(all pro!it b t(e increase3 or su!!er loss b t(e decrease or destruction3 )it(out (is !ault3 o! an part o! t(e estate. .e +ust account !or t(e e6cess )(en (e sells an part o! t(e estate !or +ore t(an appraise+ent3 and i! an is sold !or less t(an t(e appraise+ent3 (e is not responsible !or t(e loss3 i! t(e sale (as been justl +ade. I! (e settles an clai+ against t(e estate !or less t(an its no+inal 'alue3 (e is entitled to c(arge in (is account onl t(e a+ount (e actuall paid on t(e settle+ent. Sec. ;. =hen not accountable for debts due estate. No e6ecutor or ad+inistrator s(all be accountable !or debts due t(e deceased )(ic( re+ain uncollected )it(out (is !ault. Sec. 5. Accountable for income from realty used by him. I! t(e e6ecutor or ad+inistrator uses or occupies an part o! t(e real estate (i+sel!3 (e s(all account !or it as +a be agreed upon bet)een (i+ and t(e parties interested3 or adjusted b t(e court )it( t(eir assent, and i! t(e parties do not agree upon t(e su+ to be allo)ed3 t(e sa+e +a be ascertained b t(e court3 )(ose deter+ination in t(is respect s(all be !inal.

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Sec. =. Accountable if he neglects or delays to raise or pay money. 9(en an e6ecutor or ad+inistrator neglects or unreasonabl dela s to raise +one 3 b collecting t(e debts or selling t(e real or personal estate o! t(e deceased3 or neglects to pa o'er t(e +one (e (as in (is (ands3 and t(e 'alue o! t(e estate is t(ereb lessened or unnecessar cost or interest accrues3 or t(e persons interested su!!er loss3 t(e sa+e s(all be dee+ed )aste and t(e da+age sustained +a be c(arged and allo)ed against (i+ in (is account3 and (e s(all be liable t(ere!or on (is bond. Sec. ?. =hen allowed money paid as costs. -(e a+ount paid b an e6ecutor or ad+inistrator !or costs a)arded against (i+ s(all be allo)ed in (is ad+inistration account3 unless it appears t(at t(e action or proceeding in )(ic( t(e costs are ta6ed )as prosecuted or resisted )it(out just cause3 and not in good !ait(. Sec. #. =hat expenses and fees allowed executor or administrator. 5ot to charge for services as attorney. &ompensation provided by will controls unless renounced. An e6ecutor or ad+inistrator s(all be allo)ed t(e necessar e6penses in t(e care3 +anage+ent3 and settle+ent o! t(e estate3 and !or (is ser'ices3 !our pesos per da !or t(e ti+e actuall and necessaril e+plo ed3 or a co++ission upon t(e 'alue o! so +uc( o! t(e estate as co+es into (is possession and is !inall disposed o! b (i+ in t(e pa +ent o! debts3 e6penses3 legacies3 or distributi'e s(ares3 or b deli'er to (eirs or de'isees3 o! t)o per centu+ o! t(e !irst !i'e t(ousand pesos o! suc( 'alue3 one per centu+ o! so +uc( o! suc( 'alue as e6ceeds !i'e t(ousand pesos and does not e6ceed t(irt t(ousand pesos3 one8(al! per centu+ o! so +uc( o! suc( 'alue as e6ceeds t(irt t(ousand pesos and does not e6ceed one (undred t(ousand pesos and one87uarter per centu+ o! so +uc( o! suc( 'alue as e6ceed one (undred t(ousand pesos. 4ut in an special case3 )(ere t(e estate is large3 and t(e settle+ent (as been attended )it( great di!!icult 3 and (as re7uired a (ig( degree or capacit on t(e part o! t(e e6ecutor or ad+inistrator3 a greater su+ +a be allo)ed. I! objection to t(e !ees allo)ed be ta1en3 t(e allo)ance +a be re8e6a+ined on appeal. I! t(ere are t)o or +ore e6ecutors or ad+inistrators3 t(e co+pensation s(all be apportioned a+ong t(e+ b t(e court according to t(e ser'ices actuall rendered b t(e+ respecti'el . 9(en t(e e6ecutor or ad+inistrator is an attorne 3 (e s(all not c(arge against t(e estate an pro!essional !ees !or legal ser'ices rendered b (i+. 9(en t(e deceased b )ill +a1es so+e ot(er pro'ision !or t(e co+pensation o! (is e6ecutor3 t(at pro'ision s(all be a !ull satis!action !or (is ser'ices unless b a )ritten instru+ent !iled in t(e court (e renounces all clai+ to t(e co+pensation pro'ided b t(e )ill.

Conditions )(en greater co+pensation +a be gi'en to t(e ad+instrator

. estate is large ." settlement has been attended with great difficulty+ and .> settlement has re<uired a high degree or capacity on the part of the e&ecutor or administrator B#5 %&ecutor2s compensation provided in the will shall be a full satisfaction for his services. %&ception5 %&ecutor files a written renunciation of all claim to the compensation provided in the will.
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Sec. A. =hen executor or administrator to render account. E'er e6ecutor or ad+inistrator s(all render an account o! (is ad+inistration )it(in one "&% ear !ro+ t(e ti+e o! recei'ing letters testa+entar or o! ad+inistration3 unless t(e court ot(er)ise directs because o! e6tensions o! ti+e !or presenting clai+s against3 or pa ing t(e debts o!3 t(e estate3 or !or disposing o! t(e estate, and (e s(all render suc( !urt(er accounts as t(e court +a re7uire until t(e estate is )(oll settled. Sec. @. Examination on oath with respect to account. -(e court +a e6a+ine t(e e6ecutor or ad+inistrator upon oat( )it( respect to e'er +atter relating to an account rendered b (i+3 and s(all so e6a+ine (i+ as to t(e correctness o! (is account be!ore t(e sa+e is allo)ed3 e6cept )(en no objection is +ade to t(e allo)ance o! t(e account and its correctness is satis!actoril establis(ed b co+petent proo!. -(e (eirs3 legatees3 distributees3 and creditors o! t(e estate s(all (a'e t(e sa+e pri'ilege as t(e e6ecutor or ad+inistrator o! being e6a+ined on oat( o! an +atter relating to an ad+inistration. Sec. &B. Account to be settled on notice. 4e!ore t(e account o! an e6ecutor or ad+inistrator is allo)ed3 notice s(all be gi'en to persons interested o! ti+e and place o! e6a+ining and allo)ing t(e sa+e, and suc( notice +a be gi'en personall to suc( persons interested or b ad'ertise+ent in a ne)spaper or ne)spapers3 or bot(3 as t(e court directs. Sec. &&. Surety on bond may be party to accounting. Fpon t(e settle+ent o! t(e account o! an e6ecutor or ad+inistrator3 a person liable as suret in respect to suc( account +a 3 upon application3 be ad+itted as part to suc( accounting.

b. Cases 3oson v. 3oson# $ S&'A ,$ *)+()%&tra'udicial settlement and partition of the estate is not a waiver of the ob'ections of the heirs to the accounts submitted by the adminstrator or a release of the latter2s obligation to prove his accounts. 1his is more so when according to the oppositors+ the administrator has committed in his accounts a shortage which certainly can not 'ust be brushed aside by a mere technicality.

'odrigue4 v. Silva# +6 Phil. 01$ *)+1$1he amount of commission an e&ecutor or administrator may be allowed may be greater where the estate is large+ and the settlement has been attended with great difficulty+ and has re<uired a high degree of capacity on the part of the e&ecutor or administrator. 1he fact that the e&ecutor or administrator is a lawyer+ or other person especially <ualified to deal with intricate and difficult matters of law or business+ is of itself insufficient ground for increasing the compensation e&cept where the e&ecutor,lawyer or administrator,lawyer was able to stop what appeared to be an improvident disbursement of a substantial amount without having to employ outside legal help at an additional e&pense to the estate. :here an administrator is a lawyer+ his legal services while not compensable as such+ is to be considered in the award of e&tra compensation.

Albino v. Borromeo# )( S&'A $20 *)+((1he attorney who assists the e&ecutor or administrator in the e&ecution of his trust can not hold the estate directly liable for his fees+ the liability for payment resting primarily on the e&ecutor or administrator. If the e&ecutor or administrator has paid the fees+ he is entitled to reimbursement from the estate. 1he payments made by the administrator should be allowed upon notice.

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Phil. 8rust &o. v. Lu4on Surety &o.# $ S&'A )$$ *)+()Sureties (of the e&ecutor2s or administrator2s bond) are not entitled to notice but may be allowed to intervene in the settlement of the account of the e&ecutor or administrator if they as7 for leave to do so in due time.

Lim >alaw v. :A&# $)% S&'A $,+ *)++$1he rendering of an accounting by an administrator of his administration within one year from his appointment is mandatory. 1he only e&ception is when the court otherwise directs because of e&tensions of time for presenting claims against+ or paying the debts of the estate. =ailure to do so is ground for removal as administrator.

&A.Clai+s Against Estate a. Rule A?

Sec. &. 5otice to creditors to be issued by court. I++ediatel a!ter granting letters testa+entar or o! ad+inistration3 t(e court s(all issue a notice re7uiring all persons (a'ing +one clai+s against t(e decedent to !ile t(e+ in t(e o!!ice o! t(e cler1 o! said court. Sec. $. 8ime within which claims shall be filed. In t(e notice pro'ided in t(e preceding section3 t(e court s(all state t(e ti+e !or t(e !iling o! clai+s against t(e estate3 )(ic( s(all not be +ore t(an t)el'e "&$% nor less t(an si6 "?% +ont(s a!ter t(e date o! t(e !irst publication o! t(e notice. .o)e'er3 at an ti+e be!ore an order o! distribution is entered3 on application o! a creditor )(o (as !ailed to !ile (is clai+ )it(in t(e ti+e pre'iousl li+ited3 t(e court +a 3 !or cause s(o)n and on suc( ter+s as are e7uitable3 allo) suc( clai+ to be !iled )it(in a ti+e not e6ceeding one "&% +ont(. Period which the court is allowed to set for presentation of money claims "ONLG MONEG CLAIMS%5 4, " months from st publication. %&tension5 Aot e&ceeding month if . before an order of distribution is entered ." an application of a creditor who has failed to file his claim within the period .> for cause shown de 0eon5 :hat is the remedy if an order for distribution had already been enteredM Sec. ;. Publication of notice to creditors. E'er e6ecutor or ad+inistrator s(all3 i++ediatel a!ter t(e notice to creditors is issued3 cause t(e sa+e to be publis(ed t(ree ";% )ee1s successi'el in a ne)spaper o! general circulation in t(e pro'ince3 and to be posted !or t(e sa+e period in !our public places in t(e pro'ince and in t)o public places in t(e +unicipalit )(ere t(e decedent last resided. Sec. 5. 9iling copy of printed notice. 9it(in ten "&B% da s a!ter t(e notice (as been publis(ed and posted in accordance )it( t(e preceding section3 t(e e6ecutor or ad+inistrator s(all !ile or cause to be !iled in t(e court a printed cop o! t(e notice acco+panied )it( an a!!ida'it setting !ort( t(e dates o! t(e !irst and last publication t(ereo! and t(e na+e o! t(e ne)spaper in )(ic( t(e sa+e is printed. Sec. =. &laims which must be filed under the notice. :f not filed# barredE exceptions. All clai+s !or +one against t(e decedent3 arising !ro+ contract3 e6press or i+plied3 )(et(er

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t(e sa+e be due3 not due3 or contingent3 all clai+s !or !uneral e6penses and e6penses !or t(e last sic1ness o! t(e decedent3 and judg+ent !or +one against t(e decedent3 +ust be !iled )it(in t(e ti+e li+ited in t(e notice, ot(er)ise t(e are barred !ore'er3 e6cept t(at t(e +a be set !ort( as counterclai+s in an action t(at t(e e6ecutor or ad+inistrator +a bring against t(e clai+ants. 9(ere an e6ecutor or ad+inistrator co++ences an action3 or prosecutes an action alread co++enced b t(e deceased in (is li!eti+e3 t(e debtor +a set !ort( b ans)er t(e clai+s (e (as against t(e decedent3 instead o! presenting t(e+ independentl to t(e court as (erein pro'ided3 and +utual clai+s +a be set o!! against eac( ot(er in suc( action, and i! !inal judg+ent is rendered in !a'or o! t(e de!endant3 t(e a+ount so deter+ined s(all be considered t(e true balance against t(e estate3 as t(oug( t(e clai+ (ad been presented directl be!ore t(e court in t(e ad+inistration proceedings. Clai+s not et due or contingent3 +a be appro'ed at t(eir present 'alue.

Re7uire+ents !or t(e statute o! non8clai+s to appl

. ." .> .* .@ money claims (arising from contract whether due or not+ funeral e&penses+ e&penses for the last sic7ness of the decedent+ money 'udgment) property of the estate inventoried commissioner on claims regularly appointed publication of notice duly made no fraud in the proceedings.

E6ception*
(oney claims otherwise barred by the statute of non,claims may be set as a counterclaim against the estate.

9(en +one clai+s need not be presented be!ore t(e probate court
. can be set,up as a counterclaim in an action by the estate ." already commenced at the time of the decedent2s death (#ule >+ Sec. "9) ;laims not yet due or contingent+ may be approved at their present value. Sec. ?. Solidary obligation of decedent. 9(ere t(e obligation o! t(e decedent is solidar )it( anot(er debtor3 t(e clai+ s(all be !iled against t(e decedent as i! (e )ere t(e onl debtor3 )it(out prejudice to t(e rig(t o! t(e estate to reco'er contribution !or+ t(e ot(er debtor. In a joint obligation o! t(e decedent3 t(e clai+ s(all be con!ined to t(e portion belonging to (i+. Aote that this does not prevent the creditor from claiming the whole debt against the surviving debtor. J'mperial 'ns. Co. v. (avid+ >> S;#A > ) ( $3*)K Sec. #. ortgage debt due from estate. A creditor (olding a clai+ against t(e deceased secured b +ortgage or ot(er collateral securit 3 +a abandon t(e securit and prosecute (is clai+ in t(e +anner pro'ided in t(is rule3 and s(are in t(e general distribution o! t(e assets o! t(e estate, or (e +a !oreclose (is +ortgage or reali/e upon (is securit 3 b action in court3 +a1ing t(e e6ecutor or ad+inistrator a part de!endant3 and i! t(ere is a judg+ent !or a de!icienc 3 a!ter t(e sale o! t(e +ortgaged pre+ises3 or t(e propert pledged3 in t(e !oreclosure or ot(er proceeding to reali/e upon t(e securit 3 (e +a clai+ (is de!icienc judg+ent in t(e +anner pro'ided in t(e preceding section, or (e +a rel
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upon (is +ortgage o! ot(er securit alone3 and !oreclose t(e sa+e at an ti+e )it(in t(e period o! t(e statute o! li+itations3 and in t(at e'ent (e s(all not be ad+itted as a creditor3 and s(all recei'e no s(are in t(e distribution o! t(e ot(er assets o! t(e estate, but not(ing (erein contained s(all pro(ibit t(e e6ecutor or ad+inistrator !ro+ redee+ing t(e propert +ortgaged or pledged3 b pa ing t(e debt !or )(ic( it is (eld as securit 3 under t(e direction o! t(e court3 i! t(e court s(all adjudge it to be !or t(e best interest o! t(e estate t(at suc( rede+ption s(all be +ade.

Options o! a +ortgagee in case o! +ortgagorDs deat(

. abandon the security and prosecute his claim in the estate proceedings+ and share in the general distribution of the assets of the estateC or ." foreclose the mortgage+ and if there is a 'udgment for a deficiency+ claim his deficiency 'udgment in the estate proceedingsC or .> 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 Sec. A. &laim of executor or administrator against an estate. I! t(e e6ecutor or ad+inistrator (as a clai+ against t(e estate (e represents3 (e s(all gi'e notice t(ereo!3 in )riting3 to t(e court3 and t(e court s(all appoint a special ad+inistrator3 )(o s(all3 in t(e adjust+ent o! suc( clai+3 (a'e t(e sa+e po)er and be subject to t(e sa+e liabilit as t(e general ad+inistrator or e6ecutor in t(e settle+ent o! ot(er clai+s. -(e court +a order t(e e6ecutor or ad+inistrator to pa to t(e special ad+inistrator necessar !unds to de!end suc( clai+. 1his provides for the other ground for appointing a special administrator. Sec. @. 7ow to file a claim. &ontents thereof. 5otice to executor or administrator. A clai+ +a be !iled b deli'ering t(e sa+e )it( t(e necessar 'ouc(ers to t(e cler1 o! court and b ser'ing a cop t(ereo! on t(e e6ecutor or ad+inistrator. I! t(e clai+ be !ounded on a bond3 bill3 note or an ot(er instru+ent3 t(e original need not be !iled3 but a cop t(ereo! )it( all indorse+ents s(all be attac(ed to t(e clai+ and !iled t(ere)it(. On de+and3 (o)e'er3 o! t(e e6ecutor or ad+inistrator3 or b order o! t(e court or judge3 t(e original s(all be e6(ibited3 unless it be lost or destro ed3 in )(ic( case t(e clai+ant +ust acco+pan (is clai+ )it( a!!ida'it or a!!ida'its containing a cop or particular description o! t(e instru+ent and stating its loss or destruction. 9(en t(e clai+ is due3 it +ust be supported b a!!ida'it stating t(e a+ount justl due3 t(at no pa +ents (a'e been +ade t(ereon )(ic( are not credited3 and t(at t(ere are no o!!sets to t(e sa+e3 to t(e 1no)ledge o! t(e a!!iant. I! t(e clai+ is not due3 or is contingent3 )(en !iled3 it +ust also be supported b a!!ida'it stating t(e particulars t(ereo!. 9(en t(e a!!ida'it is +ade b a person ot(er t(an t(e clai+ant3 (e +ust set !ort( t(erein t(e reason )( it is not +ade b t(e clai+ant. -(e clai+ once !iled s(all be attac(ed to t(e record o! t(e case in )(ic( t(e letters testa+entar or o! ad+inistration )ere issued3 alt(oug( t(e court3 in its discretion3 and as a +atter o! con'enience3 +a order all t(e clai+s to be collected in a separate !older. Sec. &B. Answer of executor or administrator. ?ffsets. 9it(in !i!teen "&=% da s a!ter ser'ice o! a cop o! t(e clai+ on t(e e6ecutor or ad+inistrator3 (e s(all !ile (is ans)er ad+itting or den ing t(e clai+ speci!icall 3 and setting !ort( t(e substance o! t(e +atters )(ic( are relied upon to support t(e ad+ission or denial. I! (e (as no 1no)ledge su!!icient

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to enable (i+ to ad+it or den speci!icall 3 (e s(all state suc( )ant o! 1no)ledge. -(e e6ecutor or ad+inistrator in (is ans)er s(all allege in o!!set an clai+ )(ic( t(e decedent be!ore deat( (as against t(e clai+ant3 and (is !ailure to do so s(all bar t(e clai+ !ore'er. A cop o! t(e ans)er s(all be ser'ed b t(e e6ecutor or ad+inistrator on t(e clai+ant. -(e court in its discretion +a e6tend t(e ti+e !or !iling suc( ans)er. Aote that failure of the e&ecutor or administrator to raise even a permissive counterclaim in his answer bars such counterclaim forever. Sec. &&. !isposition of admitted claim. An clai+ ad+itted entirel b t(e e6ecutor or ad+inistrator s(all i++ediatel be sub+itted b t(e cler1 to t(e court )(o +a appro'e t(e sa+e )it(out (earing, but t(e court3 in its discretion3 be!ore appro'ing t(e clai+3 +a order t(at 1no)n (eirs3 legatees3 or de'isees be noti!ied and (eard. I! upon (earing3 an (eir3 legatee3 or de'isee opposes t(e clai+3 t(e court +a 3 in its discretion3 allo) (i+ !i!teen "&=% da s to !ile an ans)er to t(e clai+ in t(e +anner prescribed in t(e preceding section. Sec. &$. 8rial of contested claim. Fpon t(e !iling o! an ans)er to a clai+3 or upon t(e e6piration o! t(e ti+e !or suc( !iling3 t(e cler1 o! court s(all set t(e clai+ !or trial )it( notice to bot( parties. -(e court +a re!er t(e clai+ to a co++issioner. Sec. &;. 3udgment appealable. -(e judg+ent o! t(e court appro'ing or disappro'ing a clai+3 s(all be !iled )it( t(e record o! t(e ad+inistration proceedings )it( notice to bot( parties3 and is appealable as in ordinar cases. A judg+ent against t(e e6ecutor or ad+inistrator s(all be t(at (e pa 3 in due course o! ad+inistration3 t(e a+ount ascertained to be due3 and it s(all not create an lien upon t(e propert o! t(e estate3 or gi'e to t(e judg+ent creditor an priorit o! pa +ent. 1he remedy from a 'udgment allowing a claim is appeal. Sec. &5. &osts. 9(en t(e e6ecutor or ad+inistrator3 in (is ans)er3 ad+its and o!!ers to pa part o! a clai+3 and t(e clai+ant re!uses to accept t(e a+ount o!!ered in satis!action o! (is clai+3 i! (e !ails to obtain a +ore !a'orable judg+ent3 (e cannot reco'er costs3 but +ust pa to t(e e6ecutor or ad+inistrator costs !ro+ t(e ti+e o! t(e o!!er. 9(ere an action co++enced against t(e deceased !or +one (as been discontinued and t(e clai+ e+braced t(erein presented as in t(is rule pro'ided3 t(e pre'ailing part s(all be allo)ed t(e costs o! (is action up to t(e ti+e o! its discontinuance.

b. Cases Afan v. !e "u4man# )60 Phil. ,%+ *)+(6Aegotiating with of the heirs for payment is not a ground for e&tension of the period to file a claim+ more so if the claimant was aware that estate proceedings were underway. #e<uirements for an e&tension to be granted5 ) application+ ") show cause why it should be granted+ >) e&tension not greater than month+ and *) order of distribution has not been entered.

Santos v.

anarang# $0 Phil. $6+ *)+)2-

%ven a debt ac7nowledged and ordered paid in the will must be presented as a claim+ otherwise it will be barred by the statute of nonclaims.

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Estate of ?lave v. 'eyes# )$% S&'A )(0 *)+6%:here a claim against a deceased arises from contract+ it may be pursued only by filing the same in the estate proceedings within the period prescribed. :here the estate is sub'ect of a proceeding+ administrator can not enter into any transaction without prior approval from the courts.

"utierre4 v. BarrettoF!atu# 1 S&'A 010 *)+($1he administrator can not be sued for damages for breach of a contract committed by the decedent. In such a case+ the claim should be filed before the estate proceedings. 1he administrator may be sued only to recover property or an interest therein+ to enforce a lien on property+ to recover damages for in'ury to persons or property (now #ule 3) Sec. ).

Aguas v. Llemos# 1 S&'A +1+ *)+($An action for damages from tort is not a money claim but an action to recover damages for in'ury to property. Such damage suit survives defendant2s death and need not be separately filed in the estate proceedings. 1he remedy is to substitute the deceased with the administrator or e&ecutor of his estate. de 0eon5 Note t(at action !or +one de!endant "Rule ;3 Sec. $B%. clai+s are no) not abated b t(e deat( o! t(e

E. "as.ell B &o. v. 8an Sit# 2% Phil. ,)6 *)+$$A claim that has been discharged in ban7ruptcy proceedings can not be recovered in the estate proceedings.

:mperial :ns. &o. v. !avid# )%% S&'A %)0 *)+,2If a solidary debtor dies+ the creditor may sue the surviving solidary debtor. He need not file his claim in the estate proceedings+ even if the solidary debtors were married.

Ban. of P.:. v. &oncepcion B 7ijos# :nc.# 1% Phil. ,6( *)+$,=or a mortgagee to claim a deficiency 'udgment on the estate+ he must file a claim for the deficiency within the period provided+ even if the foreclosure proceedings have not yet been terminated.

Bayot v. Gurbito# %+ Phil. (16 *)+)+1he probate court has no 'urisdiction to entertain a claim in favor of the estate against a > rd person+ e&cept when such claim is made in the form of a counterclaim. 1his counterclaim is proper in an answer by the e&ecutor or administrator to a claim of a creditor. 1he probate court can resolve the counterclaim even if the original claim is denied.

/illanueva v. 'amos# )() S&'A *)+,,:ntestate Estate of !ominador !anan v. Buencamino# ))6 S&'A %1$ *)+,)1he court has discretion to entertain a claim filed beyond the period prescribed in the notice+ provided it is filed within month from e&piration of such period but in no case beyond the date of entry of the order of distribution Eb'ection as to timeliness of a claim is waived by laches and estoppel (e.g. by filing of an answer+ by as7ing for a postponement of hearings on the claim)

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3aucian v. Duerol# %+ Phil. 060 *)+),:here two persons are bound in solidum for the same debt and one of them dies+ the whole indebtedness must be proved against the estate of the deceased. If the claim is not thus presented+ the same will be barred as against that estate.

Buan. v. Laya# )6$ Phil. (,$ *)+10A contingent properly filed before the probate court subsists until the contingency has been finally decided or determined. 8ismissal of the contingent claim prior to such final determination is premature.

/da. de 3acob v. &A# ),2 S&'A $+2 *)++6(ortgagee does not lose its right to e&tra'udicially foreclose the mortgage even after the death of the mortgagor. =iling a claim with the probate court is merely an option+ not a re<uirement+ for the mortgagee to recover his credit.

&@.Actions 4 and Against E6ecutors and Ad+inistrators a. Rule A#

Sec. &. Actions which may and which may not be brought against executor or administrator. No action upon a clai+ !or t(e reco'er o! +one or debt or interest t(ereon s(all be co++enced against t(e e6ecutor or ad+inistrator, but actions to reco'er real or personal propert 3 or an interest t(erein3 !ro+ t(e estate3 or to en!orce a lien t(ereon3 and actions to reco'er da+ages !or an injur to person or propert 3 real or personal3 +a be co++enced against (i+. cf #ule >+ Sec. 4 and "9+ #o;
Sec. 4. (eat! of party) duty of counsel. Q :henever a party to a pending action dies+ and the claim is not thereby e&tinguished+ it shall be the duty of his counsel to inform the court within thirty (>9) days after such death of the fact thereof+ and to give the name and address of his legal representative or representatives. =ailure of counsel to comply with this duty shall be a ground for disciplinary action. 1he heirs of the deceased may be allowed to be substituted for the deceased+ without re<uiring the appointment of an e&ecutor or administrator and the court may appoint a guardian ad litem for the minor heirs. 1he court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (>9) days from notice. If no legal representative is named by the counsel for the deceased party+ or if the one so named shall fail to appear within the specified period+ the court may order the opposing party+ within a specified time+ to procure the appointment of an e&ecutor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. 1he court charges in procuring such appointment+ if defrayed by the opposing party+ may be recovered as costs. ( 4a+ )a) Sec. "9. Action on contractual money claims. Q :hen the action is for recovery of money arising from contract+ e&press or implied+ and the defendant dies before entry of final 'udgment 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 'udgment. A favorable 'udgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these #ules for prosecuting claims against the estate of a deceased person. (" a)

I! t(e clai+ against a deceased is

. a money claim (li<uidated)

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.a already instituted ? the decedent is substituted+ case continues until final 'udgment+ then the 'udgment is presented as a claim before the estate proceedings (de 0eon5 1he creditor must file a contingent claim under the statute of non,claims) .b not yet instituted ? file a claim in the estate proceedings within the statute of non,claims ." 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 in'ury to person or property+ real or personal .a already instituted ? the decedent is substituted+ case continues until final 'udgment+ then the 'udgment is presented as a claim before the estate proceedings (de 0eon5 1he creditor must file a contingent claim under the statute of non,claims) .b not yet instituted ? sue the e&ecutor or administrator in a separate action (de 0eon5 1he creditor must file a contingent claim under the statute of non,claims) de 0eon5 Aote that under the $$) #ules of ;ivil Procedure+ there is now no distinction between money claims and non,money claims already instituted before the death of the decedent. In both cases+ the action survives+ the decedent is substituted+ the claim is filed as a contingent claim+ and the final 'udgment is claimed in the estate proceedings. 1he difference lies when the action has not yet been instituted. In money claims+ it should be presented under the statute of non,claims. In non,money claims+ the claimant must sue the e&ecutor or administrator in a separate action+ but he must file a contingent claim under the statute of non,claims Sec. $. Executor or administrator may bring or defend actions which survive. :or t(e reco'er or protection o! t(e propert or rig(ts o! t(e deceased3 an e6ecutor or ad+inistrator +a bring or de!end3 in t(e rig(t o! t(e deceased3 actions !or causes )(ic( sur'i'e. Sec. ;. 7eir may not sue until share assigned. 9(en an e6ecutor or ad+inistrator is appointed and assu+es t(e trust3 no action to reco'er t(e title or possession o! lands or !or da+ages done to suc( lands s(all be +aintained against (i+ b an (eir or de'isee until t(ere is an order o! t(e court assigning suc( lands to suc( (eir or de'isee or until t(e ti+e allo)ed !or pa ing debts (as e6pired. Sec. 5. Executor or administrator may compound with debtor. 9it( t(e appro'al o! t(e court3 an e6ecutor or ad+inistrator +a co+pound )it( t(e debtor (to compound means to compromise) o! t(e deceased !or a debt due3 and +a gi'e a disc(arge o! suc( debt on recei'ing a just di'idend o! t(e estate o! t(e debtor. Sec. =. ortgage due estate may be foreclosed. A +ortgage belonging to t(e estate o! a deceased person3 as +ortgagee or assignee o! t(e rig(t o! a +ortgagee3 +a be !oreclosed b t(e e6ecutor or ad+inistrator. Sec. ?. Proceedings when property concealed# embe44led# or fraudulently conveyed. I! an e6ecutor or ad+inistrator3 (eir3 legatee3 creditor3 or ot(er indi'idual interested in t(e estate o! t(e deceased3 co+plains to t(e court (a'ing jurisdiction o! t(e estate t(at a person is suspected o! (a'ing concealed3 e+be//led3 or con'e ed a)a an o! t(e +one 3 goods3 or c(attels o! t(e deceased3 or t(at suc( person (as in (is possession or (as 1no)ledge o! an deed3 con'e ance3 bond3 contract3 or ot(er )riting )(ic( contains e'idence o! or tends to disclose t(e rig(t3 title3 interest3 or clai+ o! t(e deceased to real or personal estate3 or t(e last )ill and testa+ent o! t(e deceased3 t(e court +a cite suc( suspected person to appear

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be!ore it and +a e6a+ine (i+ on oat( on t(e +atter o! suc( co+plaint, and i! t(e person so cited re!uses to appear3 or to ans)er on suc( e6a+ination or suc( interrogatories as are put to (i+3 t(e court +a punis( (i+ !or conte+pt3 and +a co++it (i+ to prison until (e sub+its to t(e order o! t(e court. -(e interrogatories put to an suc( person3 and (is ans)ers t(ereto3 s(all be in )riting and s(all be !iled in t(e cler1<s o!!ice. Aote that the court may not order the witness to deliver property in his possession to the court unless the witness does not assert a claim adverse to the estate and e&press willingness to deliver the property to the court. Absent these conditions+ the administrator must file a separate ation to recover the property. J#alera v. 'nserto+ *$ S;#A @>> ( $3))K Sec. #. Person entrusted with estate compelled to render account. -(e court3 on co+plaint o! an e6ecutor or ad+inistrator3 +a cite a person entrusted b an e6ecutor or ad+inistrator )it( an part o! t(e estate o! t(e deceased to appear be!ore it3 and +a re7uire suc( person to render a !ull account3 on oat(3 o! t(e +one 3 goods3 c(attels3 bonds3 accounts3 or ot(er papers belonging to suc( estate as ca+e to (is possession in trust !or suc( e6ecutor or ad+inistrator3 and o! (is proceedings t(ereon, and i! t(e person so cited re!uses to appear to render suc( account3 t(e court +a punis( (i+ !or conte+pt as (a'ing disobe ed a la)!ul order o! t(e court. Sec. A. Embe44lement before letters issued. I! a person3 be!ore t(e granting o! letters testa+entar or o! ad+inistration on t(e estate o! t(e deceased3 e+be//les or alienates an o! t(e +one 3 goods3 c(attels3 or e!!ects o! suc( deceased3 suc( person s(all be liable to an action in !a'or o! t(e e6ecutor or ad+inistrator o! t(e estate !or double t(e 'alue o! t(e propert sold3 e+be//led3 or alienated3 to be reco'ered !or t(e bene!it o! suc( estate. Sec. @. Property fraudulently conveyed by deceased may be recovered. =hen executor or administrator must bring action. 9(en t(ere is de!icienc o! assets in t(e (ands o! an e6ecutor or ad+inistrator !or t(e pa +ent o! debts and e6penses o! ad+inistration3 and t(e deceased in (is li!eti+e (ad con'e ed real or personal propert 3 or a rig(t or interest t(erein3 or a debt or credit3 )it( intent to de!raud (is creditors or to a'oid an rig(t3 debt3 or dut , or (ad so con'e ed suc( propert 3 rig(t3 interest3 debt3 or credit t(at b la) t(e con'e ance )ould be 'oid as against (is creditors3 and t(e subject o! t(e atte+pted con'e ance )ould be liable to attac(+ent b an o! t(e+ in (is li!eti+e3 t(e e6ecutor or ad+inistrator +a co++ence and prosecute to !inal judg+ent an action !or t(e reco'er o! suc( propert 3 rig(t3 interest3 debt3 or credit !or t(e bene!it o! t(e creditors, but (e s(all not be bound to co++ence t(e action unless on application o! t(e creditors o! t(e deceased3 nor unless t(e creditors +a1ing t(e application pa suc( part o! t(e costs and e6penses3 or gi'e securit t(ere!or to t(e e6ecutor or ad+inistrator3 as t(e court dee+s e7uitable. Sec. &B. =hen creditor may bring action. Lien for costs. 9(en t(ere is suc( a de!icienc o! assets3 and t(e deceased in (is li!eti+e (ad +ade or atte+pted suc( a con'e ance3 as is stated in t(e last preceding section3 and t(e e6ecutor or ad+inistrator (as not co++enced t(e action t(erein pro'ided !or3 an creditor o! t(e estate +a 3 )it( t(e per+ission o! t(e court3 co++ence and prosecute to !inal judg+ent3 in t(e na+e o! t(e e6ecutor or ad+inistrator3 a li1e action !or t(e reco'er o! t(e subject o! t(e con'e ance or atte+pted con'e ance !or t(e bene!it o! t(e creditors. 4ut t(e action s(all not be co++enced until t(e creditors (as !iled in a court a bond e6ecuted to t(e e6ecutor or ad+inistrator3 in an a+ount appro'ed b t(e judge3 conditioned to inde+ni! t(e e6ecutor or ad+inistrator

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against t(e costs and e6penses incurred b reason o! suc( action. Suc( creditor s(all (a'e a lien upon an judg+ent reco'ered b (i+ in t(e action !or suc( costs and ot(er e6penses incurred t(erein as t(e court dee+s e7uitable. 9(ere t(e con'e ance or atte+pted con'e ance (as been +ade b t(e deceased in (is li!eti+e in !a'or o! t(e e6ecutor or ad+inistrator3 t(e action )(ic( a creditor +a bring s(all be in t(e na+e o! all t(e creditors3 and per+ission o! t(e court and !iling o! bond as abo'e prescribed3 are not necessar .

b. Cases Lope4 v. "arcia Lope4# 26 Phil# ),2 *)+)+An administrator may be compelled by the probate court to account for the period prior to her appointment when she was then an e&tra'udicial administrator.

Pascual v. Pascual# 0% Phil. 1() *)+2$1he general rule is+ it is the e&ecutor or adminstrator+ not the heirs+ who has standing in court to recover estate property. 1he e&ception is if the e&ecutor or administrator refuses to act+ e.g. the e&ecutor is a defendant.

/elasCue4 v. "eorge# )$1 S&'A 21( *)+,%1he heirs have standing to <uestion the action of the Fo8 of a corporation owned by the estate if the the administrator himself had participated in the <uestioned act.

!e la &ru4 v. &amon# )( S&'A ,,( *)+((1he remedy to collect from a debtor of the estate (who is a stranger to the proceedings) is by independent action+ not motion in the probate proceedings. de 0eon5 cf with *ayot v. +urbito+ >$ Phil. 4@9 ( $ $) where the estate may collect from a claimant through a counterclaim even if the original claim was denied.

odesto v.

odesto# )61 Phil. )6(( *)+1+-

1he probate court has no authority to decide whether or not properties belong to the estate or to the persons e&amined (to determine if they have concealed any property of the estate). 1his is true even if the witness admitted possession of the properties. If+ after such e&amination there is good reason to believe that said person or persons e&amined are 7eeping properties belonging to the estate+ then the ne&t step to be ta7en should be for the administrator to file an ordinary action in court to recover the same. 1he estate may not recover the property by mere motion.

Leon B "he44i v.

anufacturers Life :ns. &o# +6 Phil. 21+ *)+1)-

1he >rd person who may be compelled to render an account is a person who had in possession of estate property entrusted to him by+ or in trust for+ the e&ecutor or administrator. de 0eon5 Aote the court was apparently invo7ing the now #ule 3) Sec. ). However+ #ule 3) Sec. 4 does not re<uire that the witness was a trustee. ;ould Bhe66i have used such provision insteadM

7eirs of "regoire v. Ba.er# 1) Phil. 01 *)+$0:here the decendent e&ecuted a transaction in fraud of creditors+ and the administrator refuses to sue to recover the property+ the remedy is for the creditors to sue for recovery themselves after posting a bond to indemnify the administrator.

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de 0eon5 Aote that #ule 3) Sec. 9 provides that if the defendant is the administrator+ the creditors need not post a bond.

/alera v. :nserto# )2+ S&'A 1%% *)+,0A probate court has no power to ta7e cogni6ance of and determine the issue of title to property claimed by a >rd person adversely to the decedent+ unless the claimant and all the other parties having legal interest in the property consent+ e&pressly or impliedly+ to the submission of the <uestion to the probate court for ad'udgment+ or the interests of > rd persons are not thereby pre'udiced. 1he e&amination of >rd persons is intended merely to elicit evidence relevant to property of the decedent from persons suspected of having possession or 7nowledge thereof+ or of having concealed+ embe66led+ or conveyed away the same. If he lays no claim to the property and manifests willingness to turn it over to the estate+ the probate court simply issues the appropriate direction for the delivery of the property to the estate. However+ if he asserts a right to the property contrary to the decedentPs+ the probate court would have no authority to resolve the issue and a separate action must be instituted by the administrator to recover the property.

Bernardo v. &A# 0 S&'A %(0 *)+(%:hen the parties interested are all heirs of the deceased+ it is optional to them to submit to the probate court a <uestion as to title to property+ and when so submitted+ said probate court may definitely pass 'udgment thereon. :ith the consent of the parties+ matters affecting property under 'udicial administration may be ta7en cogni6ance of by the court in the course of intestate proceeding provided interests of third persons are not pre'udiced.

<y v. !i4onF&apulong# $$) S&'A ,0 *)++%:hen <uestions arise as to ownership of property alleged to be part of the estate of a deceased person+ but claimed by some other person to be his property+ not by virtue of any right of inheritance from the deceased but by title adverse to that of the deceased and his estate+ such <uestions cannot be determined in the courts of administration proceedings. 1he probate court+ has no 'urisdiction to ad'udicate such contentions+ which must be submitted to the trial court in the e&ercise of its general 'urisdiction.

&ui4on v. 'amolete# )$+ S&'A 2+1 *)+,2:hen the property in <uestion was in the possession of > rd parties and more important+ covered by a 1;1 issued in the name of such > rd parties+ the court should have denied the motion of the administrator and e&cluded the property in <uestion from the inventory of the property of the estate. It had no authority to deprive such >rd persons of their possession and ownership of the property.

&irca 5ila !evt &orp. v. Baylen# )10 S&'A (6+ *)+,,1hough the probate court has the power to approve contracts entered into by the estate+ it has no 'urisdiction to compel the other contracting party to abide contract. 1he remedy is to file a specific performance with a court of general 'urisdiction.

Aguas v. Llemos# 1 S&'A +1+ *)+($An action for damages from tort is not a money claim but an action to recover damages for in'ury to property. Such damage suit survives defendant2s death and need not be separately filed in the estate proceedings. 1he remedy is to substitute the deceased with the administrator or e&ecutor of his estate.

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&limaco v. Siy <y# )+ S&'A ,1, *)+(0An action for damages from tort is for a sum of money which does not survive the death of the defendant. Aeither could the action be directed against the administrator because it is not for recovery of real or personal property+ or an interest therein+ or to enforce a lien thereon or to recover damages for an in'ury to person or property. de 0eon5 1here is an irreconcilable conflict between Aguas and Climaco. 1hough Climaco is the later case+ I would side with Aguas because it cites an authority for its ruling that damages from tort is damage to property and that an action for damages from tort is similar to recovery of property+ enforcing a lien on property and to recover damages+ an action for damages from tort see7s to recover an unli<uidated amount+ unli7e money claims which are specific in amount.

"uanco v. P5B# 12 Phil. $22 *)+%6A proceeding for e&amining persons suspected of having concealed+ embe66led+ or conveyed away property of the estate is to elicit evidence. It does not authori6e the court to enforce delivery of possession of the things involved. 1he remedy is to file an separate action.

$B.Pa +ent o! t(e Debts o! t(e Estate a. Rule AA

Sec. &. !ebts paid in full if estate sufficient. I!3 a!ter (earing all t(e +one clai+s against t(e estate3 and a!ter ascertaining t(e a+ount o! suc( clai+s3 it appears t(at t(ere are su!!icient assets to pa debts3 t(e e6ecutor or ad+inistrator s(all pa t(e sa+e )it(in t(e ti+e li+ited !or t(at purpose. Sec. $. Part of estate from which debt paid when provision made by will. I! t(e testator +a1es pro'ision b (is )ill3 or designates t(e estate to be appropriated !or t(e pa +ent o! debts3 t(e e6penses o! ad+inistration3 or t(e !a+il e6penses3 t(e s(all be paid according to t(e pro'isions o! t(e )ill, but i! t(e pro'isions +ade b t(e )ill or t(e estate appropriated3 is not su!!icient !or t(at purpose3 suc( part o! t(e estate o! t(e testator3 real or personal3 as is not disposed o! b )ill3 i! an 3 s(all be appropriated !or t(at purpose. Sec. ;. Personalty first chargeable for debts# then realty. -(e personal estate o! t(e deceased not disposed o! b )ill s(all be !irst c(argeable )it( t(e pa +ent o! debts and e6penses, and i! said personal estate is not su!!icient !or t(at purpose3 or its sale )ould redound to t(e detri+ent o! t(e participants o! t(e estate3 t(e )(ole o! t(e real estate not disposed o! b )ill3 or so +uc( t(ereo! as is necessar 3 +a be sold3 +ortgaged3 or ot(er)ise encu+bered !or t(at purpose b t(e e6ecutor or ad+inistrator3 a!ter obtaining t(e aut(orit o! t(e court t(ere!or. An de!icienc s(all be +et b contributions in accordance )it( t(e pro'isions o! section ? o! t(is rule. Sec. 5. Estate to be retained to meet contingent claims. I! t(e court is satis!ied t(at a contingent clai+ dul !iled is 'alid3 it +a order t(e e6ecutor or ad+inistrator to retain in (is (ands su!!icient estate to pa suc( contingent clai+ )(en t(e sa+e beco+es absolute3 or3 i! t(e estate is insol'ent3 su!!icient to pa a portion e7ual to t(e di'idend o! t(e ot(er creditors. Sec. =. 7ow contingent claim becoming absolute in two years allowed and paid. Action against distributees later. I! suc( contingent clai+ beco+es absolute and is presented to t(e court3 or to t(e e6ecutor or ad+inistrator3 )it(in t)o "$% ears !ro+ t(e ti+e li+ited !or

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ot(er creditors to present t(eir clai+s3 it +a be allo)ed b t(e court i! not disputed b t(e e6ecutor or ad+inistrator3 and3 i! disputed3 it +a be pro'ed and allo)ed or disallo)ed b t(e court as t(e !acts +a )arrant. I! t(e contingent clai+ is allo)ed3 t(e creditor s(all recei'e pa +ent to t(e sa+e e6tent as t(e ot(er creditors i! t(e estate retained b t(e e6ecutor or ad+inistrator is su!!icient. 4ut i! t(e clai+ is not so presented3 a!ter (a'ing beco+e absolute3 )it(in said t)o "$% ears3 and allo)ed3 t(e assets retained in t(e (ands o! t(e e6ecutor or ad+inistrator3 not e6(austed in t(e pa +ent o! clai+s3 s(all be distributed b t(e order o! t(e court to t(e persons entitled to t(e sa+e, but t(e assets so distributed +a still be applied to t(e pa +ent o! t(e clai+ )(en establis(ed3 and t(e creditor +a +aintain an action against t(e distributees to reco'er t(e debt3 and suc( distributees and t(eir estates s(all be liable !or t(e debt in proportion to t(e estate t(e (a'e respecti'el recei'ed !ro+ t(e propert o! t(e deceased.

.o) +aturing contingent clai+ settled

. matures and presented to the probate court within " years from the time provided for filing claims ? paid with assets ordered by the court to be retained by the e&ecutor or administrator

." matures and presented to the probate court after " years from the time provided for filing claims .a assets that had been retained by the e&ecutor or administrator may still be applied to the payment of the claim even if already distributed to the distributees in the meantime .b 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 respectively received from the property of the deceased Sec. ?. &ourt to fix contributive shares where devisees# legatees# or heirs have been in possession. 9(ere de'isees3 legatees3 or (eirs (a'e entered into possession o! portions o! t(e estate be!ore t(e debts and e6penses (a'e been settled and paid3 and (a'e beco+e liable to contribute !or t(e pa +ent o! suc( debts and e6penses3 t(e court (a'ing jurisdiction o! t(e estate +a 3 b order !or t(at purpose3 a!ter (earing3 settle t(e a+ount o! t(eir se'eral liabilities3 and order (o) +uc( and in )(at +anner eac( person s(all contribute3 and +a issue e6ecution as circu+stances re7uire. Sec. #. ?rder of payment if estate insolvent. I! t(e assets )(ic( can be appropriated !or t(e pa +ent o! debts are not su!!icient !or t(at purpose3 t(e e6ecutor or ad+inistrator s(all pa t(e debts against t(e estate3 obser'ing t(e pro'isions o! Articles &B=@ and $$;@ to $$=& o! t(e Ci'il Code. cf Arts. 9@$ and "">$ to ""@ A;;
Art. 9@$. If the assets of the estate of a decedent which can be applied to the payment of debts are not sufficient for that purpose+ the provisions of articles "">$ to ""@ on Preference of ;redits shall be observed+ provided that the e&penses referred to in article ""**+ Ao. 3+ shall be those involved in the administration of the decedentPs estate. (n) Art. "">$. If there is property+ other than that mentioned in the preceding article+ owned by two or more persons+ one of whom is the insolvent debtor+ his undivided share or interest therein shall be among the assets to be ta7en possession of by the assignee for the payment of the insolvent debtorPs obligations. (n) Art. ""*9. Property held by the insolvent debtor as a trustee of an e&press or implied trust+ shall be e&cluded from the insolvency proceedings. (n)

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@4 ;HAP1%# " ;0ASSI=I;A1IEA E= ;#%8I1S Art. ""* . :ith reference to specific movable property of the debtor+ the following claims or liens shall be preferred5 ( ) 8uties+ ta&es and fees due thereon to the State or any subdivision thereofC (") ;laims arising from misappropriation+ breach of trust+ or malfeasance by public officials committed in the performance of their duties+ on the movables+ money or securities obtained by themC (>) ;laims for the unpaid price of movables sold+ on said movables+ so long as they are in the possession of the debtor+ up to the value of the sameC and if the movable has been resold by the debtor and the price is still unpaid+ the lien may be enforced on the priceC this right is not lost by the immobili6ation of the thing by destination+ provided it has not lost its form+ substance and identityC neither is the right lost by the sale of the thing together with other property for a lump sum+ when the price thereof can be determined proportionallyC (*) ;redits guaranteed with a pledge so long as the things pledged are in the hands of the creditor+ or those guaranteed by a chattel mortgage+ upon the things pledged or mortgaged+ up to the value thereofC (@) ;redits for the ma7ing+ repair+ safe7eeping or preservation of personal property+ on the movable thus made+ repaired+ 7ept or possessedC (4) ;laims for laborersP wages+ on the goods manufactured or the wor7 doneC ()) =or e&penses of salvage+ upon the goods salvagedC (3) ;redits between the landlord and the tenant+ arising from the contract of tenancy on shares+ on the share of each in the fruits or harvestC ($) ;redits for transportation+ upon the goods carried+ for the price of the contract and incidental e&penses+ until their delivery and for thirty days thereafterC ( 9) ;redits for lodging and supplies usually furnished to travellers by hotel 7eepers+ on the movables belonging to the guest as long as such movables are in the hotel+ but not for money loaned to the guestsC ( ) ;redits for seeds and e&penses for cultivation and harvest advanced to the debtor+ upon the fruits harvestedC ( ") ;redits for rent for one year+ upon the personal property of the lessee e&isting on the immovable leased and on the fruits of the same+ but not on money or instruments of creditC ( >) ;laims in favor of the depositor if the depositary has wrongfully sold the thing deposited+ upon the price of the sale. In the foregoing cases+ if the movables to which the lien or preference attaches have been wrongfully ta7en+ the creditor may demand them from any possessor+ within thirty days from the unlawful sei6ure. ( $""a) Art. ""*". :ith reference to specific immovable property and real rights of the debtor+ the following claims+ mortgages and liens shall be preferred+ and shall constitute an encumbrance on the immovable or real right5 ( ) 1a&es due upon the land or buildingC (") =or the unpaid price of real property sold+ upon the immovable soldC (>) ;laims of laborers+ masons+ mechanics and other wor7men+ as well as of architects+ engineers and contractors+ engaged in the construction+ reconstruction or repair of buildings+ canals or other wor7s+ upon said buildings+ canals or other wor7sC (*) ;laims of furnishers of materials used in the construction+ reconstruction+ or repair of buildings+ canals or other wor7s+ upon said buildings+ canals or other wor7sC (@) (ortgage credits recorded in the #egistry of Property+ upon the real estate mortgagedC

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@) (4) %&penses for the preservation or improvement of real property when the law authori6es reimbursement+ upon the immovable preserved or improvedC ()) ;redits annotated in the #egistry of Property+ in virtue of a 'udicial order+ by attachments or e&ecutions+ upon the property affected+ and only as to later creditsC (3) ;laims of co,heirs for warranty in the partition of an immovable among them+ upon the real property thus dividedC ($) ;laims of donors or real property for pecuniary charges or other conditions imposed upon the donee+ upon the immovable donatedC ( 9) ;redits of insurers+ upon the property insured+ for the insurance premium for two years. ( $">a) Art. ""*>. 1he claims or credits enumerated in the two preceding articles shall be considered as mortgages or pledges of real or personal property+ or liens within the purview of legal provisions governing insolvency. 1a&es mentioned in Ao. + article ""* + and Ao. + article ""*"+ shall first be satisfied. (n) Art. ""**. :ith reference to other property+ real and personal+ of the debtor+ the following claims or credits shall be preferred in the order named5 ( ) Proper funeral e&penses for the debtor+ or children under his or her parental authority who have no property of their own+ when approved by the courtC (") ;redits for services rendered the insolvent by employees+ laborers+ or household helpers for one year preceding the commencement of the proceedings in insolvencyC (>) %&penses during the last illness of the debtor or of his or her spouse and children under his or her parental authority+ if they have no property of their ownC (*) ;ompensation due the laborers or their dependents under laws providing for indemnity for damages in cases of labor accident+ or illness resulting from the nature of the employmentC (@) ;redits and advancements made to the debtor for support of himself or herself+ and family+ during the last year preceding the insolvencyC (4) Support during the insolvency proceedings+ and for three months thereafterC ()) =ines and civil indemnification arising from a criminal offenseC (3) 0egal e&penses+ and e&penses incurred in the administration of the insolventPs estate for the common interest of the creditors+ when properly authori6ed and approved by the courtC ($) 1a&es and assessments due the national government+ other than those mentioned in articles ""* + Ao. + and ""*"+ Ao. C ( 9) 1a&es and assessments due any province+ other than those referred to in articles ""* + Ao. + and ""*"+ Ao. C ( ) 1a&es and assessments due any city or municipality+ other than those indicated in articles ""* + Ao. + and ""*"+ Ao. C ( ") 8amages for death or personal in'uries caused by a <uasi,delictC ( >) Bifts due to public and private institutions of charity or beneficenceC ( *) ;redits which+ without special privilege+ appear in (a) a public instrumentC or (b) in a final 'udgment+ if they have been the sub'ect of litigation. 1hese credits shall have preference among themselves in the order of priority of the dates of the instruments and of the 'udgments+ respectively. ( $"*a) Art. ""*@. ;redits of any other 7ind or class+ or by any other right or title not comprised in the four preceding articles+ shall en'oy no preference. ( $"@) ;HAP1%# > E#8%# E= P#%=%#%A;% E= ;#%8I1S

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@3 Art. ""*4. 1hose credits which en'oy preference with respect to specific movables+ e&clude all others to the e&tent of the value of the personal property to which the preference refers. Art. ""*). If there are two or more credits with respect to the same specific movable property+ they shall be satisfied pro rata+ after the payment of duties+ ta&es and fees due the State or any subdivision thereof. ( $"4a) Art. ""*3. 1hose credits which en'oy preference in relation to specific real property or real rights+ e&clude all others to the e&tent of the value of the immovable or real right to which the preference refers. Art. ""*$. If there are two or more credits with respect to the same specific real property or real rights+ they shall be satisfied pro rata+ after the payment of the ta&es and assessments upon the immovable property or real right. ( $")a) Art. ""@9. 1he e&cess+ if any+ after the payment of the credits which en'oy preference with respect to specific property+ real or personal+ shall be added to the free property which the debtor may have+ for the payment of the other credits. ( $"3a) Art. ""@ . 1hose credits which do not en'oy any preference with respect to specific property+ and those which en'oy preference+ as to the amount not paid+ shall be satisfied according to the following rules5 ( ) In the order established in article ""**C (") ;ommon credits referred to in article ""*@ shall be paid pro rata regardless of dates. ( $"$a)

Sec. A. !ividends to be paid in proportion to claims. I! t(ere are no assets su!!icient to pa t(e credits o! an one class o! creditors a!ter pa ing t(e credits entitled to pre!erence o'er it3 eac( creditor )it(in suc( class s(all be paid a di'idend in proportion to (is clai+. No creditor o! an one class s(all recei'e an pa +ent until t(ose o! t(e preceding class are paid. Sec. @. Estate of insolvent nonresident# how disposed of. In case ad+inistration is ta1en in t(e P(ilippines o! t(e estate o! a person )(o )as at t(e ti+e o! (is deat( an in(abitant o! anot(er countr 3 and )(o died insol'ent3 (is estate !ound in t(e P(ilippines s(all3 as !ar as practicable3 be so disposed o! t(at (is creditors (ere and else)(ere +a recei'e eac( an e7ual s(are3 in proportion to t(eir respecti'e credits. Sec. &B. =hen and how claim proved outside the Philippines against insolvent residentHs estate paid. I! it appears to t(e court (a'ing jurisdiction t(at clai+s (a'e been dul pro'en in anot(er countr against t(e estate o! an insol'ent )(o )as at t(e ti+e o! (is deat( an in(abitant o! t(e P(ilippines3 and t(at t(e e6ecutor or ad+inistrator in t(e P(ilippines (ad 1no)ledge o! t(e presentation o! suc( clai+s in suc( countr and an opportunit to contest t(eir allo)ance3 t(e court s(all recei'e a certi!ied list o! suc( clai+s3 )(en per!ected in suc( countr 3 and add t(e sa+e to t(e list o! clai+s pro'ed against t(e deceased person in t(e P(ilippines so t(at a just distribution o! t(e )(ole estate +a be +ade e7uall a+ong all its creditors according to t(eir respecti'e clai+s, but t(e bene!it o! t(is and t(e preceding sections s(all not be e6tended to t(e creditors in anot(er countr i! t(e propert o! suc( deceased person t(ere !ound is not e7uall apportioned to t(e creditors residing in t(e P(ilippines and t(e ot(er creditors3 according to t(eir respecti'e clai+s.

.o) !oreign clai+s against insol'ent resident decedent settled

. the foreign claims have been duly proven in another country ." the e&ecutor or administrator in the Philippines had .a 7nowledge of the presentation of such claims in such country and .b an opportunity to contest their allowance+
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.> the court shall receive a certified list of such claims+ when perfected in such country+ and .* add the same to the list of local claims proved .@ a 'ust distribution of the whole estate e<ually among all its creditors according to their respective claimsC 1he benefit of this and the preceding sections shall not be e&tended to the creditors in another country if the property of such deceased person there found is not e<ually apportioned to the creditors residing in the Philippines and the other creditors+ according to their respective claims. Sec. &&. ?rder for payment of debts. 4e!ore t(e e6piration o! t(e ti+e li+ited !or t(e pa +ent o! t(e debts3 t(e court s(all order t(e pa +ent t(ereo!3 and t(e distribution o! t(e assets recei'ed b t(e e6ecutor or ad+inistrator !or t(at purpose a+ong t(e creditors3 as t(e circu+stances o! t(e estate re7uire and in accordance )it( t(e pro'isions o! t(is rule. Sec. &$. ?rders relating to payment of debts where appeal is ta.en. I! an appeal (as been ta1en !ro+ a decision o! t(e court concerning a clai+3 t(e court +a suspend t(e order !or t(e pa +ent o! t(e debts or +a order t(e distribution a+ong t(e creditors )(ose clai+s are de!initel allo)ed3 lea'ing in t(e (ands o! t(e e6ecutor or ad+inistrator su!!icient assets to pa t(e clai+ disputed and appealed. 9(en a disputed clai+ is !inall settled t(e court (a'ing jurisdiction o! t(e estate s(all order t(e sa+e to be paid out o! t(e assets retained to t(e sa+e e6tent and in t(e sa+e proportion )it( t(e clai+s o! ot(er creditors. Sec. &;. =hen subseCuent distribution of assets ordered. I! t(e )(ole o! t(e debts are not paid on t(e !irst distribution3 and i! t(e )(ole assets are not distributed3 or ot(er assets a!ter)ards co+e to t(e (ands o! t(e e6ecutor or ad+inistrator3 t(e court +a !ro+ ti+e to ti+e +a1e !urt(er orders !or t(e distribution o! assets. Sec. &5. &reditors to be paid in accordance with terms of order. 9(en an order is +ade !or t(e distribution o! assets a+ong t(e creditors3 t(e e6ecutor or ad+inistrator s(all3 as soon as t(e ti+e o! pa +ent arri'es3 pa t(e creditors t(e a+ounts o! t(eir clai+s3 or t(e di'idend t(ereon3 in accordance )it( t(e ter+s o! suc( order. Sec. &=. 8ime for paying debts and legacies fixed# or extended after notice# within what periods. On granting letters testa+entar or ad+inistration t(e court s(all allo) to t(e e6ecutor or ad+inistrator a ti+e !or disposing o! t(e estate and pa ing t(e debts and legacies o! t(e deceased3 )(ic( s(all not3 in t(e !irst instance3 e6ceed one "&% ear, but t(e court +a 3 on application o! t(e e6ecutor or ad+inistrator and a!ter (earing on suc( notice o! t(e ti+e and place t(ere!or gi'en to all persons interested as it s(all direct3 e6tend t(e ti+e as t(e circu+stances o! t(e estate re7uire not e6ceeding si6 "?% +ont(s !or a single e6tension nor so t(at t(e )(ole period allo)ed to t(e original e6ecutor or ad+inistrator s(all e6ceed t)o "$% ears. Sec. &?. Successor of dead executor or administrator may have time extended on notice within certain period. 9(en an e6ecutor or ad+inistrator dies3 and a ne) ad+inistrator o! t(e sa+e estate is appointed3 t(e court +a e6tend t(e ti+e allo)ed !or t(e pa +ent o! t(e debts or legacies be ond t(e ti+e allo)ed to t(e original e6ecutor or ad+inistrator3 not e6ceeding si6 "?% +ont(s at a ti+e and not e6ceeding si6 "?% +ont(s be ond t(e ti+e )(ic( t(e court +ig(t (a'e allo)ed to suc( original e6ecutor or ad+inistrator, and notice s(all be gi'en o! t(e ti+e and place !or (earing suc( application3 as re7uired in t(e last preceding section.

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b. Cases Aldami4 v. 3udge of &9:F indoro# ,1 Phil. $$, *)+2+=or legal services rendered for the estate+ it is the administrator who is liable in his personal capacity+ not as administrator of the estate. =urthermore+ writ of e&ecution is not the proper remedy for payment of debts and e&penses of administration. 1he proper procedure is for the court to order the sale of property of the estate and use the proceeds to pay for the debts and e&penses. %&ecution may issue only where the devisees+ legatees or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of debts and e&penses.

Buan. v. Laya# )6$ Phil. (,$ *)+10A contingent properly filed before the probate court subsists until the contingency has been finally decided or determined. 8ismissal of the contingent claim prior to such final determination is premature.

:gnacio v. Elchico# $6 S&'A )66 *)+(0:here the distributees have ta7en possession of the estate before the debts and e&penses are settled and paid+ the probate court may+ after hearing+ settle the amount of liability corresponding to distributee and order how much and in what manner each of them shall contribute+ and may issue e&ecution against them or their bond+ if any. :ithout hearing+ any order for return of property distributed is premature.

!inglasan v. Ang &hia# ,, Phil. 20( *)+1)Administration proceedings may not be closed if there is an action by > rd persons against the administrator and the heirs for recovery of property involved in the proceedings+ and in such case+ the closure must wait until the ordinary civil action is finally terminated.

:ntestate of 3anuaria "on4ales# 0$ Phil. $21 *)+2)Sales ordered by the probate court for payment of debts are final and not sub'ect to legal redemption.

Echaus v. Blanco# )0+ S&'A 062 *)+,+Dnder the $4* #ules of ;ivil Procedure action for money claims pending against a deceased should be dismissed and instituted as a money claim in the estate proceedings. =ailure of the estate to move to dismiss is a waiver of its ob'ections. 1he money 'udgment may be claimed in the estate proceedings+ even outside the statute of non,claims. =urthermore+ the court has discretion to entertain a claim beyond the statute of non,claims provided an order of distribution is yet to be entered. Pendency of a case is good e&cuse for tardiness in the filing of the claim. However+ e&ecution is not proper to enforce a claim against the estate. 1he remedy is for the probate court to order the slae of property of the estate and all debts should be paid out of the proceeds of the sale.

$&.Sales3 Mortgages3 and Ot(er Encu+brances o! Propert o! Decedent a. Rule A@

Sec. &. ?rder of sale of personalty. Fpon t(e application o! t(e e6ecutor or ad+inistrator3 and on )ritten notice to t(e (eirs and ot(er persons interested3 t(e court +a order t(e )(ole or a part o! t(e personal estate to be sold3 i! it appears necessar !or

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t(e purpose o! pa ing debts3 e6penses o! ad+inistration3 or legacies3 or !or t(e preser'ation o! t(e propert . Sec. $. =hen court may authori4e sale# mortgage# or other encumbrance of realty to pay debts and legacies through personalty not exhausted. 9(en t(e personal estate o! t(e deceased is not su!!icient to pa t(e debts3 e6penses o! ad+inistration3 and legacies3 or )(ere t(e sale o! suc( personal estate +a injure t(e business or ot(er interests o! t(ose interested in t(e estate3 and )(ere a testator (as not ot(er)ise +ade su!!icient pro'ision !or t(e pa +ent o! suc( debts3 e6penses3 and legacies3 t(e court3 on t(e application o! t(e e6ecutor or ad+inistrator and on )ritten notice to t(e (eirs3 de'isees3 and legatees residing in t(e P(ilippines3 +a aut(ori/e t(e e6ecutor or ad+inistrator to sell3 +ortgage3 or ot(er)ise encu+ber so +uc( as +a be necessar o! t(e real estate3 in lieu o! personal estate3 !or t(e purpose o! pa ing suc( debts3 e6penses3 and legacies3 i! it clearl appears t(at suc( sale3 +ortgage3 or encu+brances )ould be bene!icial to t(e persons interested, and i! a part cannot be sold3 +ortgaged3 or ot(er)ise encu+bered )it(out injur to t(ose interested in t(e re+ainder3 t(e aut(orit +a be !or t(e sale3 +ortgage3 or ot(er encu+brance o! t(e )(ole o! suc( real estate3 or so +uc( t(ereo! as is necessar or bene!icial under t(e circu+stances.

9(en real propert +a be sold a(ead o! personal propert to pa debts and legacies "instances )(en application !or aut(orit to sell re7uires )ritten notice onl to resident distributees%
. personal estate of the deceased is not sufficient to pay the debts+ e&penses of administration+ and legacies+ or ." where the sale of such personal estate may in'ure the business or other interests of those interested in the estate+ and .> where a testator has not otherwise made sufficient provision for the payment of such debts+ e&penses+ and legacies Fut if the sale is purportedly .beneficial/ to the distributees (i.e. not among the above instances)+ notice must be to all the distributees and creditors+ whether resident or not. (#ule 3$ Sec. *) Sec. ;. Persons interested may prevent such sale# etc.# by giving bond. No suc( aut(orit to sell3 +ortgage3 or ot(er)ise encu+ber real or personal estate s(all be granted i! an person interested in t(e estate gi'es a bond3 in a su+ to be !i6ed b t(e court3 conditioned to pa t(e debts3 e6penses o! ad+inistration3 and legacies )it(in suc( ti+e as t(e court directs, and suc( bond s(all be !or t(e securit o! t(e creditors3 as )ell as o! t(e e6ecutor or ad+inistrator3 and +a be prosecuted !or t(e bene!it o! eit(er. Enly a person interested in the estate may oppose the sale of estate property+ but he must post a bond. Sec. 5. =hen court may authori4e sale of estate as beneficial to interested persons. !isposal of proceeds. 9(en it appears t(at t(e sale o! t(e )(ole or a part o! t(e real or personal estate3 )ill be bene!icial to t(e (eirs3 de'isees3 legatees3 and ot(er interested persons3 t(e court +a 3 upon application o! t(e e6ecutor or ad+inistrator and on )ritten notice to t(e (eirs3 de'isees and legatees )(o are interested in t(e estate to be sold3 aut(ori/e t(e e6ecutor or ad+inistrator to sell t(e )(ole or a part o! said estate3 alt(oug(
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not necessar to pa debts3 legacies3 or e6penses o! ad+inistration, but suc( aut(orit s(all not be granted i! inconsistent )it( t(e pro'isions o! a )ill. In case o! suc( sale3 t(e proceeds s(all be assigned to t(e persons entitled to t(e estate in t(e proper proportions. Sec. =. =hen court may authori4e sale# mortgage# or other encumbrance of estate to pay debts and legacies in other countries. 9(en t(e sale o! personal estate3 or t(e sale3 +ortgage3 or ot(er encu+brance o! real estate is not necessar to pa t(e debts3 e6penses o! ad+inistration3 or legacies in t(e P(ilippines3 but it appears !ro+ records and proceedings o! a probate court in anot(er countr t(at t(e estate o! t(e deceased in suc( ot(er countr is not su!!icient to pa t(e debts3 e6penses o! ad+inistration3 and legacies t(ere3 t(e court (ere +a aut(ori/e t(e e6ecutor or ad+inistrator to sell t(e personal estate or to sell3 +ortgage3 or ot(er)ise encu+ber t(e real estate !or t(e pa +ent o! debts or legacies in t(e ot(er countr 3 in t(e sa+e +anner as !or t(e pa +ent o! debts or legacies in t(e P(ilippines. Sec. ?. =hen court may authori4e sale# mortgage# or other encumbrance of realty acCuired on execution or foreclosure. -(e court +a aut(ori/e an e6ecutor or ad+inistrator to sell3 +ortgage3 or ot(er)ise encu+ber real estate ac7uired b (i+ on e6ecution or !oreclosure sale3 under t(e sa+e circu+stances and under t(e sa+e regulations as prescribed in t(is rule !or t(e sale3 +ortgage3 or ot(er encu+brance o! ot(er real estate. Sec. #. 'egulations for granting authority to sell# mortgage# or otherwise encumber estate. -(e court (a'ing jurisdiction o! t(e estate o! t(e deceased +a aut(ori/e t(e e6ecutor or ad+inistrator to sell personal estate3 or to sell3 +ortgage3 or ot(er)ise encu+ber real estate, in cases pro'ided b t(ese rules and )(en it appears necessar or bene!icial3 under t(e !ollo)ing regulations* "a% -(e e6ecutor or ad+inistrator s(all !ile a )ritten petition setting !ort( t(e debts due !ro+ t(e deceased3 t(e e6penses o! ad+inistration3 t(e legacies3 t(e 'alue o! t(e personal estate3 t(e situation o! t(e estate to be sold3 +ortgaged3 or ot(er)ise encu+bered3 and suc( ot(er !acts as s(o) t(at t(e sale3 +ortgage3 or ot(er encu+brance is necessar or bene!icial, "b% -(e court s(all t(ereupon !i6 a ti+e and place !or (earing suc( petition3 and cause notice stating t(e nature o! t(e petition3 t(e reason !or t(e sa+e3 and t(e ti+e and place o! (earing3 to be gi'en personall or b +ail to t(e persons interested3 and +a cause suc( !urt(er notice to be gi'en3 b publication or ot(er)ise3 as it s(all dee+ proper, "c% I! t(e court re7uires it3 t(e e6ecutor or ad+inistrator s(all gi'e an additional bond3 in suc( su+ as t(e court directs3 conditioned t(at suc( e6ecutor or ad+inistrator )ill account !or t(e proceeds o! t(e sale3 +ortgage3 or ot(er encu+brance, "d% I! t(e re7uire+ents in t(e preceding subdi'isions o! t(is section (a'e been co+plied )it(3 t(e court3 b order stating suc( co+pliance3 +a aut(ori/e t(e e6ecutor or ad+inistrator to sell3 +ortgage3 or ot(er)ise encu+ber3 in proper cases3 suc( part o! t(e estate as is dee+ed necessar 3 and in case o! sale t(e court +a aut(ori/e it to be public or pri'ate3 as )ould be +ost bene!icial to all parties concerned. -(e e6ecutor or ad+inistrator s(all be !urnis(ed )it( a certi!ied cop o! suc( order, "e% I! t(e estate is to be sold at auction3 t(e +ode o! gi'ing notice o! t(e ti+e and place o! t(e sale s(all be go'erned b t(e pro'isions concerning notice o! e6ecution sale,

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"!% -(ere s(all be recorded in t(e registr o! deeds o! t(e pro'ince in )(ic( t(e real estate t(us sold3 +ortgaged3 or ot(er)ise encu+bered is situated3 a certi!ied cop o! t(e order o! t(e court3 toget(er )it( t(e deed o! t(e e6ecutor or ad+inistrator !or suc( real estate3 )(ic( s(all be as 'alid as i! t(e deed (ad been e6ecuted b t(e deceased in (is li!eti+e. Sec. A. =hen a court may authori4e conveyance or realty which deceased contracted to convey. 5otice. Effect of deed. 9(ere t(e deceased )as in (is li!eti+e under contract3 binding in la)3 to deed real propert 3 or an interest t(erein3 t(e court (a'ing jurisdiction o! t(e estate +a 3 on application !or t(at purpose3 aut(ori/e t(e e6ecutor or ad+inistrator to con'e suc( propert according to suc( contract3 or )it( suc( +odi!ications as are agreed upon b t(e parties and appro'ed b t(e court, and i! t(e contract is to con'e real propert to t(e e6ecutor or ad+inistrator3 t(e cler1 o! t(e court s(all e6ecute t(e deed. -(e deed e6ecuted b suc( e6ecutor3 ad+inistrator3 or cler1 o! court s(all be as e!!ectual to con'e t(e propert as i! e6ecuted b t(e deceased in (is li!eti+e, but no suc( con'e ance s(all be aut(ori/ed until notice o! t(e application !or t(at purpose (as been gi'en personall or b +ail to all persons interested3 and suc( !urt(er notice (as been gi'en3 b publication or ot(er)ise3 as t(e court dee+s proper, nor i! t(e assets in t(e (ands o! t(e e6ecutor or ad+inistrator )ill t(ereb be reduced so as to pre'ent a creditor !ro+ recei'ing (is !ull debt or di+inis( (is di'idend. Sec. @. =hen court may authori4e conveyance of lands which deceased held in trust. 9(ere t(e deceased in (is li!eti+e (eld real propert in trust !or anot(er person3 t(e court +a 3 a!ter notice gi'en as re7uired in t(e last preceding section3 aut(ori/e t(e e6ecutor or ad+inistrator to deed suc( propert to t(e person3 or (is e6ecutor or ad+inistrator3 !or )(ose use and bene!it it )as so (eld, and t(e court +a order t(e e6ecution o! suc( trust3 )(et(er created b deed or b la).

b. Cases "odoy v. ?rellano# 2$ Phil. %20 *)+$)1he court has e&clusive 'urisdiction to authori6e the sale of properties of the estate. A power of attorney e&ecuted by the heirs in favor of the administrator+ without authority of court+ has no legal effect. A sale by an administrator of the personal property of the estate+ without the authority of an order of court+ or of a will+ or under an order of court which is void for want of 'urisdiction+ does not confer on the purchaser a title.

Estate of "amboa v. 9loran4a# )$ Phil. )+) *)+6,1he probate court has no power to order the sale of a specific piece of real estate for the purpose of paying a mortgage debt which is a lien thereon. It may be that the court would have authority to sell the property+ sub'ect to the mortgage lien+ for the purpose of paying other debts of the estate+ but there is nothing giving the court authority to sell it for the purpose of paying that specific debt. An order made by the probate court for the sale of real property of the estate is void when no notice of the hearing upon the petition for such sale is given. 1he sale made pursuant to such order is also void.

&9: of 'i4al v. &A# )6( S&'A ))2 *)+,)Sale of estate property may not be disapproved on the sole ground that there is a higher offer. =or a person to be able to intervene in an administration proceeding concerning the estate of a

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deceased person+ it is necessary for him to have an interest in such estate. A prospective buyer of estate property is not an interested party in the estate and has no right to intervene either in the proceedings brought in connection with the estate or in the settlement of the succession. 0astly+ to prevent sale of estate property+ the oppositor must post a bond.

3aroda v. &usi# $, S&'A )66, *)+(+If even to sell for valuable consideration property of the estate re<uires prior written notice of the application to the distributees+ such notice is e<ually+ if not more+ indispensable for disposing gratuitously of assets of the decedent in favor of strangers. An order approving a contract without notice to the distributees is void.

Bonaga v. Soler# $ S&'A 011 *)+()=acts5 Administrator sells land without notice to the heirs of the hearing of the application to sell. Some of the heirs were in Spain and never got their share of the proceeds. After the ::II+ new administrator is appointed who <uestions the sale. Held5 A sale of properties of an estate as beneficial to the interested parties must comply with the re<uisites of the fi&ing of the time and place of hearing for an application to sell+ and the notice thereof to the heirs. :ithout them+ the authority to sell+ the sale itself+ and the order approving it+ would be null and void ab initio. 1he rule does not distinguish between heirs residing in and residing outside the Philippines. Its re<uirements should apply regardless of the place of residence of those re<uired to be notified under said rule. 1he contention that the sale was made under now "+ #ule 3$ (wherein notice is re<uired only to those heirs+ etc.+ residing in the Philippines)+ is not substantiated by the record. Aeither the deed of sale+ nor the orders issued by the probate court in connection therewith+ show whether+ as re<uired by said "+ the personal properties were insufficient to pay the debts and e&penses of administration. 1here is not even a showing that the sale was made for the purpose of paying debts or e&penses of administration (or legacies)+ a condition which circumscribes the applicability of that section. En the face of the reamended complaint at any rate+ it does not appear that the contested sale was one under said "C and the same can not be invo7ed to sustain the motion to dismiss. A decedentPs representative (administrator) is not estopped from <uestioning the validity of his own void deed purporting to convey landC and if this be true of the administrator as to his own acts+ a fortiori+ his successor can not be estopped to <uestion the acts of hie predecessor that are not conformable to law.

$$.Distribution and Partition o! t(e Estate a. Rule @B

Sec. &. =hen order for distribution of residue made. 9(en t(e debts3 !uneral c(arges3 and e6penses o! ad+inistration3 t(e allo)ance to t(e )ido)3 and in(eritance ta63 i! an 3 c(argeable to t(e estate in accordance )it( la)3 (a'e been paid3 t(e court3 on t(e application o! t(e e6ecutor or ad+inistrator3 or o! a person interested in t(e estate3 and a!ter (earing upon notice3 s(all assign t(e residue o! t(e estate to t(e persons entitled to t(e sa+e3 na+ing t(e+ and t(e proportions3 or parts3 to )(ic( eac( is entitled3 and suc( person +a de+and and reco'er t(eir respecti'e s(ares !ro+ t(e e6ecutor or ad+inistrator3 or an ot(er person (a'ing t(e sa+e in (is possession. I! t(ere is a

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contro'ers be!ore t(e court as to )(o are t(e la)!ul (eirs o! t(e deceased person or as to t(e distributi'e s(ares to )(ic( eac( person is entitled under t(e la)3 t(e contro'ers s(all be (eard and decided as in ordinar cases. No distribution s(all be allo)ed until t(e pa +ent o! t(e obligations abo'e +entioned (as been +ade or pro'ided !or3 unless t(e distributees3 or an o! t(e+3 gi'e a bond3 in a su+ to be !i6ed b t(e court3 conditioned !or t(e pa +ent o! said obligations )it(in suc( ti+e as t(e court directs. Sec. $. Duestions as to advancement to be determined. Huestions as to ad'ance+ent +ade3 or alleged to (a'e been +ade3 b t(e deceased to an (eir +a be (eard and deter+ined b t(e court (a'ing jurisdiction o! t(e estate proceedings, and t(e !inal order o! t(e court t(ereon s(all be binding on t(e person raising t(e 7uestions and on t(e (eir. Sec. ;. By whom expenses of partition paid. I! at t(e ti+e o! t(e distribution t(e e6ecutor or ad+inistrator (as retained su!!icient e!!ects in (is (ands )(ic( +a la)!ull be applied !or t(e e6penses o! partition o! t(e properties distributed3 suc( e6penses o! partition +a be paid b suc( e6ecutor or ad+inistrator )(en it appears e7uitable to t(e court and not inconsistent )it( t(e intention o! t(e testator, ot(er)ise3 t(e s(all be paid b t(e parties in proportion to t(eir respecti'e s(ares or interest in t(e pre+ises3 and t(e apportion+ent s(all be settled and allo)ed b t(e court3 and3 i! an person interested in t(e partition does not pa (is proportion or s(are3 t(e court +a issue an e6ecution in t(e na+e o! t(e e6ecutor or ad+inistrator against t(e part not pa ing !or t(e su+ assessed. Sec. 5. 'ecording the order of partition of estate. Certi!ied copies o! !inal orders and judg+ents o! t(e court relating to t(e real estate or t(e partition t(ereo! s(all be recorded in t(e registr o! deeds o! t(e pro'ince )(ere t(e propert is situated.

b. Cases "atmaitan v. edina# )6+ Phil. )6, *)+(6Partial partition and distribution may be had only after posting of a bond and after the inventory and appraisal must has been approved+ notices for presentation of claims have been published+ the period for presentation of claims elapsed.

8orres v. Encarnacion# ,+ Phil. (0, *)+1)=acts5 Pro'ect of partition includes land possessed and claimed by the heirs of an heir. Such heirs won an e&ecution of the partition before the S;. Such heirs now see7 to e&clude the land in their possession. Held5 :here a partition had not only been approved and thus become a 'udgment of the court+ but distribution of the estate in pursuance of such partition had fully been carried out+ and the heirs had received the property assigned to them+ they are precluded from subse<uently attac7ing its validity or any part of it. :here a piece of land has been included in a partition+ and there is no allegation that the inclusion was effected through improper means or without the claimantPs 7nowledge+ the partition barred any further litigation on the title to said land+ and operated to bring the property under the control and 'urisdiction of the court for proper disposition according to the tenor of the partition.

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44

Lope4 v. Lope4# (, Phil. $$0 *)+%+=acts5 A person filed a petition in the intestate proceedings to be ad'udged as the universal heiress of the deceased. 1here were allegations that she was an ac7nowledged natural child of a deceased+ but there was no specific prayer that she be declared an heir. 1his petition was opposed by the nephews and nieces. Probate court eventually declares her as an heir. Held5 A person claiming to be an ac7nowledged natural child of a deceased need not maintain a separate action for recognition but may simply intervene in the intestate proceedings+ by alleging and proving therein his or her status as such+ and claiming accordingly the right to share in the inheritance. Inasmuch as the recognition of the status of the petitioner as a natural child is a prere<uisite to her right or heirship+ her prayer that she be declared universal heirs implies a li7e prayer that she be recogni6ed as an ac7nowledged natural child. =urthermore+ the prayer for relief+ though part of the pleading+ is not part of the cause of action or defense alleged therein+ and the pleader is entitled to as much relief as the facts duly pleaded may warrant. Eppositors claim that they had no notice either of the petition for the declaration of heirs or of the date set for the hearing thereof. :e find in the record no evidence affirmatively showing that they had no such noticeC therefore+ the presumption of regularity of proceedings should stand. In the motion for reconsideration filed by them+ the lac7 of notice is allegedC but the motion is not even verified. Fesides+ according to the record Attorney Simplicio F. PeRa was the counsel for both the administrator and the oppositors. 1he petition for declaration of heirs+ although signed by Attorney Simplicio F. PeRa as Sabogado del administradorS+ was+ in fact+ a petition filed in behalf of the oppositors as their right to succession is therein asserted and prayed for. Dnder these circumstances+ there e&ists sufficient ground for holding+ as we do hold+ that the oppositors had notice of the petition as well as of the hearing where the said attorney was present.

:mperial v.

uIo4# 1, S&'A (0, *)+02-

=acts5 Probate court approved pro'ect of partition where widower awarded @N3 of the estate+ and adopted daughter+ >N3. Aearly " months later+ administrator,widower see7s to correct the sharing to T widower and U adopted daughter. Probate court grants the correction. Held5 An order which determines the distributive shares of the heirs is appealable and not interlocutory. If not appealed within the >9,day reglementary period+ it becomes final. An erroneous decree or 'udgment although granted without legal authority and contrary to the e&press provision of the statute+ is not void. Here+ as no appeal was ta7en+ the decree must be conceded to have full force and effect. An erroneous decree is not a void decree.

8imbol v. &ano# ) S&'A )$0) *)+()1he probate court loses 'urisdiction of an estate only after the payment of all the debts and the remainder delivered to the distributees. 1he probate court approving a contract has the power to order its revocation or reduction.

Solivio v. &A# ),$ S&'A ))+ *)++6It is the order of distribution directing the delivery of the residue of the estate to the distributees+ not approval of pro'ect of partition+ that brings to a close the estate proceedings. Prior to this+ an e&cluded heir can and should move to set aside the declaration of heirs. A separatee action is improper. 1he remedy in case of denial of the motion for reopening is review on certiorari to the ;A.
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de 0eon5 I thin7 the proper remedy is appeal (#ule 9$ Sec.

JbK)

$;.Esc(eats a. Rule @&

Sec. &. =hen and by whom petition filed. 9(en a person dies intestate3 sei/ed o! real or personal propert in t(e P(ilippines3 lea'ing no (eir or person b la) entitled to t(e sa+e3 t(e Solicitor General or (is representati'e in be(al! o! t(e Republic o! t(e P(ilippines3 +a !ile a petition in t(e Court o! :irst Instance o! t(e pro'ince )(ere t(e deceased last resided or in )(ic( (e (ad estate3 i! (e resided out o! t(e P(ilippines3 setting !ort( t(e !acts3 and pra ing t(at t(e estate o! t(e deceased be declared esc(eated. Sec. $. ?rder for hearing. I! t(e petition is su!!icient in !or+ and substance3 t(e court3 b an order reciting t(e purpose o! t(e petition3 s(all !i6 a date and place !or t(e (earing t(ereo!3 )(ic( date s(all be not +ore t(an si6 "?% +ont(s a!ter t(e entr o! t(e order3 and s(all direct t(at a cop o! t(e order be publis(ed be!ore t(e (earing at least once a )ee1 !or si6 "?% successi'e )ee1s in so+e ne)spaper o! general circulation publis(ed in t(e pro'ince3 as t(e court s(all dee+ best. Sec. ;. 7earing and judgment. Fpon t(e satis!actor proo! in open court on t(e date !i6ed in t(e order t(at suc( order (as been publis(ed as directed and t(at t(e person died intestate3 sei/ed o! real or personal propert in t(e P(ilippines3 lea'ing no (eir or person entitled to t(e sa+e3 and no su!!icient cause being s(o)n to t(e contrar 3 t(e court s(all adjudge t(at t(e estate o! t(e deceased in t(e P(ilippines3 a!ter t(e pa +ent o! just debts and c(arges3 s(all esc(eat, and s(all3 pursuant to la)3 assign t(e personal estate to t(e +unicipalit or cit )(ere (e last resided in t(e P(ilippines3 and t(e real estate to t(e +unicipalities or cities3 respecti'el 3 in )(ic( t(e sa+e is situated. I! t(e deceased ne'er resided in t(e P(ilippines3 t(e )(ole estate +a be assigned to t(e respecti'e +unicipalities or cities )(ere t(e sa+e is located. Suc( estate s(all be !or t(e bene!it o! public sc(ools3 and public c(aritable institutions and centers in said +unicipalities or cities. -(e court3 at t(e instance o! an interested part 3 or on its o)n +otion3 +a order t(e establis(+ent o! a per+anent trust3 so t(at onl t(e inco+e !ro+ t(e propert s(all be used. Sec. 5. =hen and by whom claim to estate filed. I! a de'isee3 legatee3 (eir3 )ido)3 )ido)er or ot(er person entitled to suc( estate appears and !iles a clai+ t(ereto )it( t(e court )it(in !i'e "=% ears !ro+ t(e date o! suc( judg+ent3 suc( person s(all (a'e possession o! and title to t(e sa+e3 or i! sold3 t(e +unicipalit or cit s(all be accountable to (i+ !or t(e proceeds3 a!ter deducting reasonable c(arges !or t(e care o! t(e estate, but a clai+ not +ade )it(in said ti+e s(all be !ore'er barred. Sec. =. ?ther actions for escheat. Fntil ot(er)ise pro'ided b la)3 actions !or re'ersion or esc(eat o! properties alienated in 'iolation o! t(e Constitution or o! an statute s(all be go'erned b t(is rule3 e6cept t(at t(e action s(all be instituted in t(e pro'ince )(ere t(e land lies in )(ole or in part.

b. Cases

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!e "u4man v. Sevilla# 20 Phil. ++) *)+$2=acts5 8ecedent was an ac7nowledged natural child (father was married to someone else). 1he law at that time provides that the intestate heirs of an ac7nowledged natural child are the parents or the siblings. Petitioners and oppositors are neither parents nor siblings of the decedent. 1hus+ the probate court awarded the estate to the state. Held5 Although there are no relatives entitled to succeed the deceased+ it is+ however+ premature to award the estate to the State before the re<uirements of sections )@9 to )@" of the ;ode of ;ivil Procedure are complied with. (;ase didn2t say what sections )@9 to )@" of the ;ode of ;ivil Procedure re<uired) de 0eon5 I thin7 it was referring to the filing of the petition and publication of the notice of hearing.

:n re estate of Lao Sayco# $) Phil. 221 *)+)$=acts5 (unicipal ;ouncil see7s to succeed to the intestate estate. Epposed by nephew. Held5 1he ;ode of ;ivil Procedure provides for the procedure in escheat proceedings . municipality files a petition for an in<uisition in the premisesC ." the court appoints a time and place of hearing+ cause a notice to be published .> 1he notice shall recite the substance of the facts and re<uest set forth in the petition+ the time and place at which persons claiming the estate may appear and be heard before the court+ and shall be published at least 4 successive wee7s En record+ there was no such in<uisition conducted+ there was no certified copy of the inventory. Aeither was there any showing that no will was e&ecuted+ or that there are no relatives entitled to inherit from him. 1he notice was published only for >+ not 4+ wee7s It is indispensable that the re<uisites under the ;ode are met.

'epublic v. &9: of

anila# )(1 S&'A )) *)+,,-

1he depositary ban7 of dormant accounts is a real party in interest in the escheat proceedings. It was the personality to file a motion to dismiss the escheat proceedings on the ground of improper venue. %scheat proceedings are actions in rem which must be brought in the province or city where the rem is located. 1he rule concerning venue of personal actions in civil procedure (where any of the principal defendants resides) is inapplicable.

C. Guardians(ip &. Rule @$* 0enue

Sec. &. =here to institute proceedings. Guardians(ip o! t(e person or estate o! a +inor "-(ere is a special rule on guardians(ip o! +inors. Please re!er to AM B;8B$8B=8SC )(ic( +odi!ied Rules on Guardians(ip )it( respect to +inors.% or inco+petent +a be instituted in t(e Court o! :irst Instance o! t(e pro'ince3 or in t(e justice o! t(e peace court o! t(e +unicipalit 3 or in t(e +unicipal court o! t(e c(artered cit )(ere t(e +inor or inco+petent person resides3 and i! (e resides in a !oreign countr 3 in t(e Court o! :irst Instance o! t(e pro'ince )(erein (is propert or part t(ereo! is situated, pro'ided3 (o)e'er3 t(at )(ere t(e 'alue o! t(e propert o! suc( +inor or inco+petent e6ceeds t(e

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4$

jurisdiction o! t(e justice o! t(e peace or +unicipal court3 t(e proceedings s(all be instituted in t(e Court o! :irst Instance. In t(e Cit o! Manila t(e proceedings s(all be instituted in t(e 2u'enile and Do+estic Relations Court.

0enue o! guardians(ip proceedings

. resident ward ? where the ward resides ." non,resident ward ? where ward2s property is situated

2urisdiction
. depends on the value of the ward2s property ." if in (anila ? instituted -uvenile and 8omestic #elations ;ourt de 0eon5 Aote that in estate proceedings .residence/ is the physical presence of the decedent with intent to stay indefinitely. In guardianship .residence/ is domicile (p. $3 Herrera). Sec. $. eaning of word Jincompetent.J Fnder t(is rule3 t(e )ord Iinco+petentI includes persons su!!ering t(e penalt o! ci'il interdiction or )(o are (ospitali/ed lepers3 prodigals3 dea! and du+b )(o are unable to read and )rite3 t(ose )(o are o! unsound +ind3 e'en t(oug( t(e (a'e lucid inter'als3 and persons not being o! unsound +ind3 but b reason o! age3 disease3 )ea1 +ind3 and ot(er si+ilar causes3 cannot3 )it(out outside aid3 ta1e care o! t(e+sel'es and +anage t(eir propert 3 beco+ing t(ereb an eas pre !or deceit and e6ploitation.

JInco+petentK includes persons )(o are

. ." .> .* .@ .4 suffering civil interdiction or hospitali6ed lepers prodigals deaf and dumb who are unable to read and write of unsound mind+ even though they have lucid intervals+ and by reason of age+ disease+ wea7 mind+ and other similar causes+ cannot+ without outside aid+ ta7e care of themselves and manage their property+ becoming thereby an easy prey for deceit and e&ploitation.

Sec. ;. 8ransfer of venue. -(e court ta1ing cogni/ance o! a guardians(ip proceeding3 +a trans!er t(e sa+e to t(e court o! anot(er pro'ince or +unicipalit )(erein t(e )ard (as ac7uired real propert 3 i! (e (as trans!erred t(ereto (is bona8!ide residence3 and t(e latter court s(all (a'e !ull jurisdiction to continue t(e proceedings3 )it(out re7uiring pa +ent o! additional court !ees.

$. Rule @;* Appoint+ent o! Guardians

Sec. &. =ho may petition for appointment of guardian for resident. An relati'e3 !riend3 or ot(er person on be(al! o! a resident +inor or inco+petent )(o (as no parent or la)!ul guardian3 or t(e +inor (i+sel! i! !ourteen ears o! age or o'er3 +a petition t(e court (a'ing jurisdiction !or t(e appoint+ent o! a general guardian !or t(e person or estate3 or bot(3 o! suc( +inor or inco+petent. An o!!icer o! t(e :ederal Ad+inistration o! t(e Fnited States in t(e P(ilippines +a also !ile a petition in !a'or o! a )ard t(ereo!3 and t(e Director o! .ealt(3 in !a'or o! an insane person )(o s(ould be (ospitali/ed3 or in !a'or o! an isolated leper.

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cf #ule $> Sec. 4 for non,resident wards

Sec. 4. ,!en and !o" guardian for nonresident appointed. otice. :hen 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 e&pectancy or otherwise+ may petition a court having 'urisdiction for the appointment of a guardian for the estate+ and if+ after notice given to such person and in such manner as the court deems proper+ by publication or otherwise+ 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.

9(o +a petition !or appoint+ent o! guardian*

. for resident ward .a Any relative+ friend+ or other person on behalf of a ward who has no parent or lawful guardian .b the minor himself if * years of age or over .c an officer of the =ederal Administration of the DS in the Philippines may also file a petition in favor of a ward thereof .d the 8irector of Health+ in favor of an insane person who should be hospitali6ed+ or in favor of an isolated leper. ." for non,resident ward .a any relative or friend of such person+ or .b any one interested in his estate+ in e&pectancy or otherwise Sec. $. &ontents of petition. A petition !or t(e appoint+ent o! a general guardian +ust s(o)3 so !ar as 1no)n to t(e petitioner* "a% -(e jurisdictional !acts, "b% -(e +inorit or inco+petenc rendering t(e appoint+ent necessar or con'enient, "c% -(e na+es3 ages3 and residences o! t(e relati'es o! t(e +inor or inco+petent3 and o! t(e persons (a'ing (i+ in t(eir care, "d% -(e probable 'alue and c(aracter o! (is estate, "e% -(e na+e o! t(e person !or )(o+ letters o! guardians(ip are pra ed. -(e petition s(all be 'eri!ied, but no de!ect in t(e petition or 'eri!ication s(all render 'oid t(e issuance o! letters o! guardians(ip. Sec. ;. &ourt to set time for hearing. 5otice thereof. 9(en a petition !or t(e appoint+ent o! a general guardian is !iled3 t(e court s(all !i6 a ti+e and place !or (earing t(e sa+e3 and s(all cause reasonable notice t(ereo! to be gi'en to t(e persons +entioned in t(e petition residing in t(e pro'ince3 including t(e +inor i! abo'e &5 ears o! age or t(e inco+petent (i+sel!3 and +a direct ot(er general or special notice t(ereo! to be gi'en. de 0eon5 Aote that there is no publication re<uirement for guardianship proceedings unli7e in estate and adoption proceedings. However+ in guardianship proceedings for non,resident wards+ publication of notice is an option (#ule $> Sec. 4). Sec. 5. ?pposition to petition. An interested person +a 3 b !iling a )ritten opposition3 contest t(e petition on t(e ground o! +ajorit o! t(e alleged +inor3 co+petenc o! t(e alleged inco+petent3 or t(e unsuitabilit o! t(e person !or )(o+ letters are pra ed3 and

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+a pra t(at t(e petition be dis+issed3 or t(at letters o! guardians(ip issue to (i+sel!3 or to an suitable person na+ed in t(e opposition.

Grounds !or opposition

. ma'ority of the alleged minor ." competency of the alleged incompetent+ or .> unsuitability of the person for whom letters are prayed Sec. =. 7earing and order for letters to issue. At t(e (earing o! t(e petition t(e alleged inco+petent +ust be present i! able to attend3 and it +ust be s(o)n t(at t(e re7uired notice (as been gi'en. -(ereupon t(e court s(all (ear t(e e'idence o! t(e parties in support o! t(eir respecti'e allegations3 and3 i! t(e person in 7uestion is a +inor3 or inco+petent it s(all appoint a suitable guardian o! (is person or estate3 or bot(3 )it( t(e po)ers and duties (ereina!ter speci!ied. Aote that it is the incompetent wards+ if able+ who is re<uired to attend the guardianship hearings. (inors wards are not re<uired to attend. Sec. ?. =hen and how guardian for nonresident appointed. 5otice. 9(en a person liable to be put under guardians(ip resides )it(out t(e P(ilippines but (as estate t(erein3 an relati'e or !riend o! suc( person3 or an one interested in (is estate3 in e6pectanc or ot(er)ise3 +a petition a court (a'ing jurisdiction !or t(e appoint+ent o! a guardian !or t(e estate3 and i!3 a!ter notice gi'en to suc( person and in suc( +anner as t(e court dee+s proper3 b publication or ot(er)ise3 and (earing3 t(e court is satis!ied t(at suc( nonresident is a +inor or inco+petent rendering a guardian necessar or con'enient3 it +a appoint a guardian !or suc( estate. Sec. #. Parents as guardians. 666 (repealed by the Arts. ""@ and ""9 of the =amily ;ode)
Art. ""@. 1he father and the mother shall 'ointly e&ercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement+ the fatherPs decision shall prevail+ unless there is a 'udicial order to the contrary. :here the mar7et value of the property or the annual income of the child e&ceeds P@9+999+ the parent concerned shall be re<uired to furnish a bond in such amount as the court may determine+ but not less than ten per centum ( 9V) 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. 1he petition shall be doc7eted as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved. 1he ordinary rules on guardianship shall be merely suppletory e&cept when the child is under substitute parental authority+ or the guardian is a stranger+ or a parent has remarried+ in which case the ordinary rules on guardianship shall apply. (>"9a) Art. ""9. 1he parents and those e&ercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties5 ( ) 1o 7eep them in their company+ to support+ educate and instruct them by right precept and good e&ample+ and to provide for their upbringing in 7eeping with their meansC (") 1o give them love and affection+ advice and counsel+ companionship and understandingC

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)" (>) 1o provide them with moral and spiritual guidance+ inculcate in them honesty+ integrity+ self,discipline+ self,reliance+ industry and thrift+ stimulate their interest in civic affairs+ and inspire in them compliance with the duties of citi6enshipC (*) 1o furnish them with good and wholesome educational materials+ supervise their activities+ recreation and association with others+ protect them from bad company+ and prevent them from ac<uiring habits detrimental to their health+ studies and moralsC (@) 1o represent them in all matters affecting their interestsC (4) 1o demand from them respect and obedienceC ()) 1o impose discipline on them as may be re<uired under the circumstancesC and (3) 1o perform such other duties as are imposed by law upon parents and guardians. (> 4a)

Parents are the 'oint legal guardians over the property of the child+ without the necessity of a court appointment. In case of disagreement+ the fatherPs decision shall prevail+ unless there is a 'udicial order to the contrary. If the value of the child2s property or annual income e&ceeds P@9+999+ the parents are still the guardians without necessity of court appointment+ but they must post a bond to guarantee the performance of the obligations prescribed for general guardians. 1he ordinary rules on guardianship shall be merely suppletory e&cept when the child is under substitute parental authority+ or the guardian is a stranger+ or a parent has remarried+ in which case the ordinary rules on guardianship shall apply. Sec. A. Service of judgment. :inal orders or judg+ents under t(is rule s(all be ser'ed upon t(e ci'il registrar o! t(e +unicipalit or cit )(ere t(e +inor or inco+petent person resides or )(ere (is propert or part t(ereo! is situated.

;. Rule @5* 4onds o! Guardians

Sec. &. Bond to be given before issuance of letters. Amount. &onditions. 4e!ore a guardian appointed enters upon t(e e6ecution o! (is trust3 or letters o! guardians(ip issue3 (e s(all gi'e a bond3 in suc( su+ as t(e court directs3 conditioned as !ollo)s* "a% -o +a1e and return to t(e court3 )it(in t(ree ";% +ont(s3 a true and co+plete in'entor o! all t(e estate3 real and personal3 o! (is )ard )(ic( s(all co+e to (is possession or 1no)ledge or to t(e possession or 1no)ledge o! an ot(er person !or (i+, "b% -o !ait(!ull e6ecute t(e duties o! (is trust3 to +anage and dispose o! t(e estate according to t(ese rules !or t(e best interests o! t(e )ard3 and to pro'ide !or t(e proper care3 custod 3 and education o! t(e )ard, "c% -o render a true and just account o! all t(e estate o! t(e )ard in (is (ands3 and o! all proceeds or interest deri'ed t(ere!ro+3 and o! t(e +anage+ent and disposition o! t(e sa+e3 at t(e ti+e designated b t(ese rules and suc( ot(er ti+es as t(e court directs, and at t(e e6piration o! (is trust to settle (is accounts )it( t(e court and deli'er and pa o'er all t(e estate3 e!!ects3 and +one s re+aining in (is (ands3 or due !ro+ (i+ on suc( settle+ent3 to t(e person la)!ull entitled t(ereto, "d% -o per!or+ all orders o! t(e court b (i+ to be per!or+ed.

Conditions o! t(e guardianDs bond

. to ma7e and return an inventory to the court+ within > months
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." to faithfully e&ecute the duties of his trust+ to manage and dispose of the estate for the best interests of the ward+ and to provide for the proper care+ custody+ and education of the wardC .> to render an 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 times as the court directs+ and at the e&piration 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 entitled theretoC .* to perform all orders of the court by him to be performed. Sec. $. =hen new bond may be reCuired and old sureties discharged. 9(ene'er it is dee+ed necessar 3 t(e court +a re7uire a ne) bond to be gi'en b t(e guardian3 and +a disc(arge t(e sureties on t(e old bond !ro+ !urt(er liabilit 3 a!ter due notice to interested persons3 )(en no injur can result t(ere!ro+ to t(ose interested in t(e estate. Sec. ;. Bonds to be filed. Actions thereon. E'er bond gi'en b a guardian s(all be !iled in t(e o!!ice o! t(e cler1 o! t(e court3 and3 in case o! t(e breac( o! a condition t(ereo!3 +a be prosecuted in t(e sa+e proceeding or in a separate action !or t(e use and bene!it o! t(e )ard or o! an ot(er person legall interested in t(e estate. 1he guardian2s bond may be held liable in the same proceeding or in a separate action.

5. Selling and Encu+bering Propert o! 9ard a. Rule @=

Sec. &. Petition of guardian for leave to sell or encumber estate. 9(en t(e inco+e o! an estate under guardians(ip is insu!!icient to +aintain t(e )ard and (is !a+il 3 or to +aintain and educate t(e )ard )(en a +inor3 or )(en it appears t(at it is !or t(e bene!it o! t(e )ard t(at (is real estate or so+e part t(ereo! be sold3 or +ortgaged or ot(er)ise encu+bered3 and t(e proceeds t(ereo! put out at interest3 or in'ested in so+e producti'e securit 3 or in t(e i+pro'e+ent or securit o! ot(er real estate o! t(e )ard3 t(e guardian +a present a 'eri!ied petition to t(e court b )(ic( (e )as appointed setting !ort( suc( !acts3 and pra ing t(at an order issue aut(ori/ing t(e sale or encu+brance.

Grounds !or allo)ing sale or encu+brance o'er propert o! t(e )ard

. the income of the estate is insufficient to .a maintain the ward and his family+ or .b to maintain 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 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 1he petition for leave to sell ward2s property must be verified. Sec. $. ?rder to show cause thereupon. I! it see+s probable t(at suc( sale or encu+brance is necessar 3 or )ould be bene!icial to t(e )ard3 t(e court s(all +a1e an order directing t(e ne6t o! 1in o! t(e )ard3 and all persons interested in t(e estate3 to

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appear at a reasonable ti+e and place t(erein speci!ied to s(o) cause )( t(e pra er o! t(e petition s(ould not be granted. Sec. ;. 7earing on return of order. &osts. At t(e ti+e and place designated in t(e order to s(o) cause3 t(e court s(all (ear t(e proo!s and allegations o! t(e petitioner and ne6t o! 1in3 and ot(er persons interested3 toget(er )it( t(eir )itnesses3 and grant or re!use t(e pra er o! t(e petition as t(e best interests o! t(e )ard re7uire. -(e court s(all +a1e suc( order as to costs o! t(e (earing as +a be just. Sec. 5. &ontents of order for sale or encumbrance# and how long effective. Bond. I!3 a!ter !ull e6a+ination3 it appears t(at it is necessar 3 or )ould be bene!icial to t(e )ard3 to sell or encu+ber t(e estate3 or so+e portion o! it3 t(e court s(all order suc( sale or encu+brance and t(at t(e proceeds t(ereo! be e6pended !or t(e +aintenance o! t(e )ard and (is !a+il 3 or t(e education o! t(e )ard3 i! a +inor3 or !or t(e putting o! t(e sa+e out at interest3 or t(e in'est+ent o! t(e sa+e as t(e circu+stances +a re7uire. -(e order s(all speci! t(e causes )( t(e sale or encu+brance is necessar or bene!icial3 and +a direct t(at estate ordered sold be disposed o! at eit(er public or pri'ate sale3 subject to suc( conditions as to t(e ti+e and +anner o! pa +ent3 and securit )(ere a part o! t(e pa +ent is de!erred3 as in t(e discretion o! t(e court are dee+ed +ost bene!icial to t(e )ard. -(e original bond o! t(e guardian s(all stand as securit !or t(e proper appropriation o! t(e proceeds o! t(e sale3 but t(e judge +a 3 i! dee+ed e6pedient3 re7uire an additional bond as a condition !or t(e granting o! t(e order o! sale. No order o! sale granted in pursuance o! t(is section s(all continue in !orce +ore t(an one "&% ear a!ter granting t(e sa+e3 )it(out a sale being (ad. A court order allowing sale of the ward2s property is effective for at most year. Sec. =. &ourt may order investment of proceeds and direct management of estate. -(e court +a aut(ori/e and re7uire t(e guardian to in'est t(e proceeds o! sales or encu+brances3 and an ot(er o! (is )ard<s +one in (is (ands3 in real estate or ot(er)ise3 as s(all be !or t(e best interest o! all concerned3 and +a +a1e suc( ot(er orders !or t(e +anage+ent3 in'est+ent3 and disposition o! t(e estate and e!!ects3 as circu+stances +a re7uire.

b. Cases Lindain v. &A# $)$ S&'A 0$1 *)++$A parent+ acting merely as the legal adminisntrator of the property of his minor children+ does not have the power to dispose of or alienate the property of said children without 'udicial approval+ regardless of amount.

aneclang v. Baun# $6, S&'A )0+ *)++$1hough parents are the legal administrator of their children+ it does not follow that notice to the parent is notice to the children. 1o properly notify minor children+ a guardian ad litem must be appointed and notice served on him.

=. General Po)ers and Duties o! Guardians a. Rule @?

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Sec. &. 8o what guardianship shall extend. A guardian appointed s(all (a'e t(e care and custod o! t(e person o! (is )ard3 and t(e +anage+ent o! (is estate3 or t(e +anage+ent o! t(e estate onl 3 as t(e case +a be. -(e guardian o! t(e estate o! a nonresident s(all (a'e t(e +anage+ent o! all t(e estate o! t(e )ard )it(in t(e P(ilippines3 and no court ot(er t(an t(at in )(ic( suc( guardian )as appointed s(all (a'e jurisdiction o'er t(e guardians(ip.

Scope o! guardians(ip3 eit(er

. person of his ward and management of the ward2s estate+ or ." management of the ward2s estate only Sec. $. "uardian to pay debts of ward. E'er guardian +ust pa t(e )ard<s just debts out o! (is personal estate and t(e inco+e o! (is real estate3 i! su!!icient, i! not3 t(en out o! (is real estate upon obtaining an order !or t(e sale or encu+brance t(ereo!. Sec. ;. "uardian to settle accounts# collect debts# and appear in actions for ward. A guardian +ust settle all accounts o! (is )ard3 and de+and3 sue !or3 and recei'e all debts due (i+3 or +a 3 )it( t(e appro'al o! t(e court3 co+pound !or t(e sa+e and gi'e disc(arges to t(e debtor3 on recei'ing a !air and just di'idend o! t(e estate and e!!ects, and (e s(all appear !or and represent (is )ard in all actions and special proceedings3 unless anot(er person be appointed !or t(at purpose. Sec. 5. Estate to be managed frugally# and proceeds applied to maintenance of ward. A guardian +ust +anage t(e estate o! (is )ard !rugall and )it(out )aste3 and appl t(e inco+e and pro!its t(ereon3 so !ar as +a be necessar 3 to t(e co+!ortable and suitable +aintenance o! t(e )ard and (is !a+il 3 i! t(ere be an , and i! suc( inco+e and pro!its be insu!!icient !or t(at purpose3 t(e guardian +a sell or encu+ber t(e real estate3 upon being aut(ori/ed b order so to do3 and appl so +uc( o! t(e proceeds as +a be necessar to suc( +aintenance. Sec. =. "uardian may be authori4ed to join in partition proceedings after hearing. -(e court +a aut(ori/e t(e guardian to join in an assent to a partition o! real or personal estate (eld b t(e )ard jointl or in co++on )it( ot(ers3 but suc( aut(orit s(all onl be granted a!ter (earing3 upon suc( notice to relati'es o! t(e )ard as t(e court +a direct3 and a care!ul in'estigation as to t(e necessit and propriet o! t(e proposed action. Sec. ?. Proceedings when person suspected of embe44ling or concealing property of ward. Fpon co+plaint o! t(e guardian or )ard3 or o! an person (a'ing actual or prospecti'e interest in t(e estate o! t(e )ard as creditor3 (eir3 or ot(er)ise3 t(at an one is suspected o! (a'ing e+be//led3 concealed3 or con'e ed a)a an +one 3 goods3 or interest3 or a )ritten instru+ent3 belonging to t(e )ard or (is estate3 t(e court +a cite t(e suspected person to appear !or e6a+ination touc(ing suc( +one 3 goods3 interest3 or instru+ent3 and +a1e suc( orders as )ill secure t(e estate against suc( e+be//le+ent3 conceal+ent or con'e ance. Aote that similar to a probate court+ the guardianshp court has no authority to order delivery of the ward2s property in the possession of another who claims an adverse interest. A separate ordinary action is re<uired JCui v. Piccio+ $ Phil ) " ( $@")K. Sec. #. :nventories and accounts of guardians# and appraisement of estates. A guardian +ust render to t(e court an in'entor o! t(e estate o! (is )ard )it(in t(ree ";% +ont(s
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a!ter (is appoint+ent3 and annuall a!ter suc( appoint+ent an in'entor and account3 t(e rendition o! an o! )(ic( +a be co+pelled upon t(e application o! an interested person. Suc( in'entories and accounts s(all be s)orn to b t(e guardian. All t(e estate o! t(e )ard described in t(e !irst in'entor s(all be appraised. In t(e appraise+ent t(e court +a re7uest t(e assistance o! one or +ore o! t(e in(eritance ta6 appraisers. And )(ene'er an propert o! t(e )ard not included in an in'entor alread rendered is disco'ered3 or succeeded to3 or ac7uired b t(e )ard3 li1e proceedings s(all be (ad !or securing an in'entor and appraise+ent t(ereo! )it(in t(ree ";% +ont(s a!ter suc( disco'er 3 succession3 or ac7uisition. Sec. A. =hen guardianHs accounts presented for settlement. Expenses and compensation allowed. Fpon t(e e6piration o! a ear !ro+ t(e ti+e o! (is appoint+ent3 and as o!ten t(erea!ter as +a be re7uired3 a guardian +ust present (is account to t(e court !or settle+ent and allo)ance. In t(e settle+ent o! t(e account3 t(e guardian3 ot(er t(an a parent3 s(all be allo)ed t(e a+ount o! (is reasonable e6penses incurred in t(e e6ecution o! (is trust and also suc( co+pensation !or (is ser'ices as t(e court dee+s just3 not e6ceeding !i!teen per centu+ o! t(e net inco+e o! t(e )ard.

b. Case &ui v. Piccio# +) Phil.0)$ *)+1$B#5 1he guardianshp court has no authority to order delivery of the ward2s property in the possession of another who claims an adverse interest. A separate ordinary action is re<uired. %&ception5 in e&treme cases where property clear and indisputable belongs to the ward+ or where his title thereto has already been 'udicially decided+ the court may direct its delivery to the guardian.

?. Rule @#* -er+ination o! Guardians(ip Instances o! ter+ination o! guardians(ip

. ." .> .* .@ 'udicial determination of the competency of the ward removal of the guardian resignation of the guardian marriage or voluntary emancipation of a minor ward 'udicial discharge upon ward2s application that the guardianship is no longer necessary

Sec. &. Petition that competency of ward be adjudged# and proceedings thereupon. A person )(o (as been declared inco+petent !or an reason3 or (is guardian3 relati'e3 or !riend3 +a petition t(e court to (a'e (is present co+petenc judiciall deter+ined. -(e petition s(all be 'eri!ied b oat(3 and s(all state t(at suc( person is t(en co+petent. Fpon recei'ing t(e petition3 t(e court s(all !i6 a ti+e !or (earing t(e 7uestions raised t(ereb 3 and cause reasonable notice t(ereo! to be gi'en to t(e guardian o! t(e person3 so declared inco+petent3 and to t(e )ard. On t(e trial3 t(e guardian or relati'es o! t(e )ard3 and3 in t(e discretion o! t(e court3 an ot(er person3 +a contest t(e rig(t to t(e relie! de+anded3 and )itnesses +a be called and e6a+ined b t(e parties or b t(e court on its o)n +otion. I! it be !ound t(at t(e person is no longer inco+petent3 (is co+petenc s(all be adjudged and t(e guardians(ip s(all cease. Petition for determination of ward2s competency must be verified.

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Sec. $. =hen guardian removed or allowed to resign. 5ew appointment. 9(en a guardian beco+es insane or ot(er)ise incapable o! disc(arging (is trust or unsuitable t(ere!or3 or (as )asted or +is+anaged t(e estate3 o! !ailed !or t(irt ";B% da s a!ter it is due to render an account or +a1e a return3 t(e court +a 3 upon reasonable notice to t(e guardian3 re+o'e (i+3 and co+pel (i+ to surrender t(e estate o! t(e )ard to t(e person !ound to be la)!ull entitled t(ereto. A guardian +a resign )(en it appears proper to allo) t(e sa+e, and upon (is resignation or re+o'al t(e court +a appoint anot(er in (is place.

Grounds !or re+o'al o! a guardian

. ." .> .* .@ insanity incapable of discharging his trust unsuitable therefore wasted or mismanaged the estate failed to render an account or ma7e a return for >9 days after it is due

Sec. ;. ?ther termination of guardianship. -(e +arriage or 'oluntar e+ancipation o! a +inor )ard ter+inates t(e guardians(ip o! t(e person o! t(e )ard3 and s(all enable t(e +inor to ad+inister (is propert as t(oug( (e )ere o! age3 but (e cannot borro) +one or alienate or encu+ber real propert )it(out t(e consent o! (is !at(er or +ot(er3 or guardian. .e can sue and be sued in court onl )it( t(e assistance o! (is !at(er3 +ot(er or guardian. -(e guardian o! an person +a be disc(arged b t(e court )(en it appears3 upon t(e application o! t(e )ard or ot(er)ise3 t(at t(e guardians(ip is no longer necessar . cf Art. ">* and ">4 =;
Art. ">*. %mancipation ta7es place by the attainment of ma'ority. Dnless otherwise provided+ ma'ority commences at the age of eighteen years (as amended by #A 439$). Art. ">4. %mancipation shall terminate parental authority over the person and property of the child who shall then be <ualified and responsible for all acts of civil life+ save the e&ceptions established by e&isting laws in special cases. ;ontracting marriage shall re<uire parental consent until the age of twenty,one. Aothing in this ;ode shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty,one years of age mentioned in the second and third paragraphs of Article " 39 of the ;ivil ;ode. (as amended by #A 439$)

Sec. 5. 'ecord to be .ept by the justice of the peace or municipal judge. 9(en a justice o! t(e peace or +unicipal court ta1es cogni/ance o! t(e proceedings in pursuance o! t(e pro'isions o! t(ese rules3 t(e record o! t(e proceedings s(all be 1ept as in t(e court o! !irst instance. Sec. =. Service of judgment. :inal orders or judg+ents under t(is rule s(all be ser'ed upon t(e ci'il registrar o! t(e +unicipalit or cit )(ere t(e +inor or inco+petent person resides or )(ere (is propert or part t(ereo! is situated.

#. Cases 9rancisco v. &A# )$0 S&'A %0) *)+,2Protection of the ward is more than sufficient reason for the immediate e&ecution pending appeal of a 'udgment for the replacement of the first guardian. :hile age alone is not a controlling

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criterion in determining a personPs fitness or <ualification to be appointed or be retained as guardian+ it may be a factor for consideration.

8avera v. El 7ogar 9il.# :nc.# +, Phil. 2,) *)+1(1he petition for the sale of real property belonging to the estate of a minor must be verified but lac7 of verification is not a 'urisdictional defect. =urthermore+ it is not necessary for a grant of authority to the guardian to sell the estate of the ward to state that the income from the property Sis insufficient to maintain the ward and his family or to maintain or educate the ward when a minor.S It is enough that it is for the benefit of the ward that his real estate should be sold+ and the proceeds thereof put out at interest+ or invested in some productive security.

Paciente v. !acuycuy# ))2 S&'A +$2 *)+,$=acts5 :idow sold land of an estate. :idow later appointed guardian of her " minor children. Iendee sells to Paciente. Paciente mortgages to ;onsolidated Fan7. #o8 notifies guardianship court of the transfers. Buardianship court orders cancellation of Paciente2s 1;1 and orders issuance of new one in favor Paciente and the " minor children with N> share each. Held5 :hile the Supreme ;ourt has ruled that where title to any property said to be embe66led+ concealed or conveyed is in <uestion+ the determination of said title or right whether in favor of the ward or in favor of the person said to have embe66led+ concealed or conveyed the property must be determined in a separate ordinary action and not in guardianship proceedings+ it was also emphasi6ed that if the right or title of the ward to the property is clear and indisputable the court may issue an order directing its delivery or return. :here title to any property said to be embe66led+ concealed or conveyed is in dispute+ the determination of said title or right whether in favor of the persons said to have embe66led+ concealed or conveyed the property must be determined in a separate ordinary action and not in a guardianship proceedings.S In the present case the right or title of the two minors to the property is clear and indisputable. 1hey inherited a part of the land in <uestion from their father. 1he sale of this land+ where they are co,owners+ by their mother without the authority of the guardianship court is illegal. 1he respondent court in issuing the order to the #egister of 8eeds to cancel the 1;1 of Paciente and to order the issuance of a new title to include the minors as co,owners with the petitioner+ did not e&ceed its 'urisdiction but merely e&ercised its duty to protect persons under disability.

"amboa v. Lope4 /ito# ($ Phil. 116 *)+%1=acts5 Buardian leases the land to the creditor without court approval. 1hereafter+ the creditor sought court approval of the lease. ;ourt awarded the lease contract to somebody else. ;reditor appeals. Pending appeal+ creditor too7 possession. ;ourt order creditor to return possession to guardian. Held5 1he leasing of a realty belonging to the guardianship of a minor forms part of the acts of administration of the guardian who+ in said administration+ is sub'ect to the direction+ supervision and 'urisdiction of the court having cogni6ance of the guardianship. Hence+ the court has 'urisdiction to pass upon the application for approval of the lease contract. 1he order denying such approval is appealable. (oran5 A guardian has no power to lease realty for more than 4 years+ for that would not be a mere act of adminstration. (p. )"3)

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de 0eon5 Among the authorities cited by (oran is $amboa v. Lopez #ito. However+ the case e&pressly stated that it was resolving the case .without anticipating whether the respondent guardian could enter into a valid contract of lease for si& (4) years without the authority or approval of the court having cogni6ance of the guardianship./

Beng4on v. P5B# % S&'A 01) *)+()=acts5 1he ward was the mother of a veteran who died in ::II. She was a beneficiary of accrued insurance benefits and to a monthly death compensation for the rest of her life+ all e&tended by the Dnited States Ieterans Administration. PAF was appointed as her guardian. " years and ) months later+ upon motion+ the court removed PAF and appointed the ward2s son+ =rancisco Fengson+ as her guardian on the grounds that the ward was living with =rancisco Fengson in the latterPs capacity as personal guardianC that the appointment of Fengson in place of the PAF would save the compensation being paid to PAFC and that the transfer to the PAF branch at San =ernando+ 0a Dnion would be more convenient to all concerned for the proper administration of the estate. PAF and Ieteran2s Administration appeals. Held5 Sec. "+ #ule $) of the current #ules provides
Sec. ". ,!en guardian removed or allo"ed to resign. e" appointment. :hen a guardian becomes insane or otherwise incapable of discharging his trust or unsuitable therefor+ or has wasted or mismanaged the estate+ of failed for thirty (>9) days after it is due to render an account or ma7e a return+ the court may+ upon reasonable notice to the guardian+ remove him+ and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto. A guardian may resign when it appears proper to allow the sameC and upon his resignation or removal the court may appoint another in his place.

A guardian cannot be legally removed from office e&cept for the cause therein mentioned. 1o the e&tent that a court uses its discretion in appraising whether or not a person is unsuitable or incapable of discharging his trust+ that much it can be said that removal is discretionary. Fut the discretion must be e&ercised within the law+ and when the latter has laid down the grounds for removal of a guardian+ discretion is limited to in<uiring as to the e&istence of any of those grounds. Ao pretense is made in this case+ and nothing in the record would indicate+ that there was any legal ground upon which the removal of the PAF as guardian was founded. Aeither in =rancisco FengsonPs manifestation nor in the orders of the lower court is it made to appear that the Philippine Aational Fan7 had become incapable of discharging its trust or was unsuitable therefor+ or that it had committed anything which the #ules includes as grounds for removal. En the contrary+ it appears incontestable that all throughout+ the PAF has discharged its trust satisfactorily. 1hat it has received commissions allowed by law for its services is no ground to remove it+ especially since the Fan7Ps commission averages no more than P 99 a year and is offset by interest on the wardPs deposit and the sum that the son would probably have to disburse in bond premiums Aeither is it sufficient to base removal on the unsubstantiated opinion that it would be more beneficial to the interests of the ward and more convenient for the administration of the estate. A guardian should not be removed e&cept for the most cogent reasonsC otherwise+ the removal is unwarranted and illegal. (oran5 ;onflict of interest is sufficient ground for the removal of a guardian+ premised on the logic that antagonistic interests would render a guardian unsuitable for the trust.

D. Rule @A* -rustees

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Sec. &. =here trustee appointed. A trustee necessar to carr into e!!ect t(e pro'isions o! a )ill or )ritten instru+ent s(all be appointed b t(e Court o! :irst Instance in )(ic( t(e )ill )as allo)ed i! it be a )ill allo)ed in t(e P(ilippines3 ot(er)ise b t(e Court o! :irst Instance o! t(e pro'ince in )(ic( t(e propert 3 or so+e portion t(ereo!3 a!!ected b t(e trust is situated.

0enue o! appoint+ent o! a trustee

. if re<uired by a probated will ? #1; where the will was probated ." Etherwise ? province where the property or some part thereof is located Sec. $. Appointment and powers of trustee under will. Executor of former trustee need not administer trust. I! a testator (as o+itted in (is )ill to appoint a trustee in t(e P(ilippines3 and i! suc( appoint+ent is necessar to carr into e!!ect t(e pro'isions o! t(e )ill3 t(e proper Court o! :irst Instance +a 3 a!ter notice to all persons interested3 appoint a trustee )(o s(all (a'e t(e sa+e rig(ts3 po)ers3 and duties3 and in )(o+ t(e estate s(all 'est3 as i! (e (ad been appointed b t(e testator. No person succeeding to a trust as e6ecutor or ad+inistrator o! a !or+er trustee s(all be re7uired to accept suc( trust. 1he e&ecutor or administrator of the estate of a deceased trustee is not re<uired to accept the trust. Sec. ;. Appointment and powers of new trustee under written instrument. 9(en a trustee under a )ritten instru+ent declines3 resigns3 dies3 or is re+o'ed be!ore t(e objects o! t(e trust are acco+plis(ed3 and no ade7uate pro'ision is +ade in suc( instru+ent !or suppl ing t(e 'acanc 3 t(e proper Court o! :irst Instance +a 3 a!ter due notice to all persons interested3 appoint a ne) trustee to act alone or jointl )it( t(e ot(ers3 as t(e case +a be. Suc( ne) trustee s(all (a'e and e6ercise t(e sa+e po)ers3 rig(ts3 and duties as i! (e (ad been originall appointed3 and t(e trust estate s(all 'est in (i+ in li1e +anner as it (ad 'ested or )ould (a'e 'ested3 in t(e trustee in )(ose place (e is substituted, and t(e court +a order suc( con'e ance to be +ade b t(e !or+er trustee or (is representati'es3 or b t(e ot(er re+aining trustees3 as +a be necessar or proper to 'est t(e trust estate in t(e ne) trustee3 eit(er alone or jointl )it( t(e ot(ers. Sec. 5. Proceedings where trustee appointed abroad. 9(en land in t(e P(ilippines is (eld in trust !or persons resident (ere b a trustee )(o deri'es (is aut(orit !ro+ )it(out t(e P(ilippines3 suc( trustee s(all3 on petition !iled in t(e Court o! :irst Instance o! pro'ince )(ere t(e land is situated3 and a!ter due notice to all persons interested3 be ordered to appl to t(e court !or appoint+ent as trustee, and upon (is neglect or re!usal to co+pl )it( suc( order3 t(e court s(all declare suc( trust 'acant3 and s(all appoint a ne) trustee in )(o+ t(e trust estate s(all 'est in li1e +anner as i! (e (ad been originall appointed b suc( court. A trustee appointed abroad for Philippine land for residents may be re<uired+ upon petition in the #1; wehre the land is situated+ to apply for court appointment as trustee. =ailure to do so when re<uired results in the trust being declared vacant and new trustee being appointed. Sec. =. 8rustee must file bond. 4e!ore entering on t(e duties o! (is trust3 a trustee s(all !ile )it( t(e cler1 o! t(e court (a'ing jurisdiction o! t(e trust a bond in t(e a+ount !i6ed b t(e judge o! said court3 pa able to t(e Go'ern+ent o! t(e P(ilippines and su!!icient and a'ailable !or t(e protection o! an part in interest3 and a trustee )(o neglects to !ile suc(

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bond s(all be considered to (a'e declined or resigned t(e trust, but t(e court +a until !urt(er order e6e+pt a trustee under a )ill !ro+ gi'ing a bond )(en t(e testator (as directed or re7uested suc( e6e+ption3 and +a so e6e+pt an trustee )(en all persons bene!iciall interested in t(e trust3 being o! !ull age3 re7uest t(e e6e+ption. Suc( e6e+ption +a be cancelled b t(e court at an ti+e and t(e trustee re7uired to !ort()it( !ile a bond. GR5 0i7e e&ecutors+ administrators and guardians+ trustees are also re<uired to post a bond. E6ceptions5 court may e&empt a a trustee under a will from giving a bond when . the testator has directed or re<uested such e&emption+ or ." all persons beneficially interested in the trust+ being of full age+ re<uest the e&emption. de 0eon5 Aote that unli7e trustees+ e&ecutors may not be wholly e&empt from posting a bond+ even if directed by the testator. 1he wishes of the testator go only so far as to lessen the conditions of the bond (#ule 3 Sec. "). Sec. ?. &onditions included in bond. -(e !ollo)ing conditions s(all be dee+ed to be a part o! t(e bond )(et(er )ritten t(erein or not* "a% -(at t(e trustee )ill +a1e and return to t(e court3 at suc( ti+e as it +a order3 a true in'entor o! all t(e real and personal estate belonging to (i+ as trustee3 )(ic( at t(e ti+e o! t(e +a1ing o! suc( in'entor s(all (a'e co+e to (is possession or 1no)ledge, "b% -(at (e )ill +anage and dispose o! all suc( estate3 and !ait(!ull disc(arge (is trust in relation t(ereto3 according to la) and t(e )ill o! t(e testator or t(e pro'isions o! t(e instru+ent or order under )(ic( (e is appointed, "c% -(at (e )ill render upon oat( at least once a ear until (is trust is !ul!illed3 unless (e is e6cused t(ere!ro+ in an ear b t(e court3 a true account o! t(e propert in (is (ands and o! t(e +anage+ent and disposition t(ereo!3 and )ill render suc( ot(er accounts as t(e court +a order, "d% -(at at t(e e6piration o! (is trust (e )ill settle (is accounts in court and pa o'er and deli'er all t(e estate re+aining in (is (ands3 or due !ro+ (i+ on suc( settle+ent3 to t(e person or persons entitled t(ereto. 4ut )(en t(e trustee is appointed as a successor to a prior trustee3 t(e court +a dispense )it( t(e +a1ing and return o! an in'entor 3 i! one (as alread been !iled3 and in suc( case t(e condition o! t(e bond s(all be dee+ed to be altered accordingl .

Conditions o! t(e trusteeDs bond

. the trustee will ma7e and return to the court+ at such time as it may order+ a true inventory of all the real and personal estate belonging to him as trustee+ which at the time of the ma7ing of such inventory shall have come to his possession or 7nowledgeC ." he will manage and dispose of all such estate+ and faithfully discharge his trust in relation thereto+ according to law and the will of the testator or the provisions of the instrument or order under which he is appointedC .> he will render upon oath at least once a year until his trust is fulfilled+ unless he is e&cused 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 orderC

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3"

.* at the e&piration of his trust he will settle his accounts in court and pay over and deliver all the estate remaining in his hands+ or due from him on such settlement+ to the person or persons entitled thereto. Fut when the trustee is appointed as a successor to a prior trustee+ the court may dispense with the ma7ing 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. #. Appraisal. &ompensation of trustee. 9(en an in'entor is re7uired to be returned b a trustee3 t(e estate and e!!ects belonging to t(e trust s(all be appraised and t(e court +a order one or +ore in(eritance ta6 appraisers to assist in t(e appraise+ent. -(e co+pensation o! t(e trustee s(all be !i6ed b t(e court3 i! it be not deter+ined in t(e instru+ent creating t(e trust. Sec. A. 'emoval or resignation of trustee. -(e proper Court o! :irst Instance +a 3 upon petition o! t(e parties bene!iciall interested and a!ter due notice to t(e trustee and (earing3 re+o'e a trustee i! suc( re+o'al appears essential in t(e interests o! t(e petitioners. -(e court +a also3 a!ter due notice to all persons interested3 re+o'e a trustee )(o is insane or ot(er)ise incapable o! disc(arging (is trust or e'identl unsuitable t(ere!or. A trustee3 )(et(er appointed b t(e court or under a )ritten instru+ent3 +a resign (is trust i! it appears to t(e court proper to allo) suc( resignation.

Grounds !or re+o'al o! a trustee

. ." .> .* essential in the interests of the petitioners (parties beneficially interested) insanity incapability of discharging his trust or evidently unsuitability

Sec. @. Proceedings for sale or encumbrance of trust estate. 9(en t(e sale or encu+brance o! an real or personal estate (eld in trust is necessar or e6pedient3 t(e court (a'ing jurisdiction o! t(e trust +a 3 on petition and a!ter due notice and (earing3 order suc( sale or encu+brance to be +ade3 and t(e rein'est+ent and application o! t(e proceeds t(ereo! in suc( +anner as )ill best e!!ect t(e objects o! t(e trust. -(e petition3 notice3 (earing3 order o! sale or encu+brance3 and record o! proceedings3 s(all con!or+ as nearl as +a be to t(e pro'isions concerning t(e sale or encu+brance b guardians o! t(e propert o! +inors or ot(er )ards.

E. Adoption
cf #A 3@@"5 8omestic (8AA) and #A 39*>5 Inter,;ountry (I;A) Adoptions Acts

&. 9(o +a be Adopted a. Do+estic Adoption "Sec. A DAA%

Sec. A. =ho ay Be Adopted. L -(e !ollo)ing +a be adopted* "a% An person belo) eig(teen "&A% ears o! age )(o (as been ad+inistrati'el or judiciall declared a'ailable !or adoption, "b% -(e legiti+ate son>daug(ter o! one spouse b t(e ot(er spouse,

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3>

"c% An illegiti+ate son>daug(ter b a 7uali!ied adopter to i+pro'e (is>(er status to t(at o! legiti+ac , "d% A person o! legal age i!3 prior to t(e adoption3 said person (as been consistentl considered and treated b t(e adopter"s% as (is>(er o)n c(ild since +inorit , "e% A c(ild )(ose adoption (as been pre'iousl rescinded, or "!% A c(ild )(ose biological or adopti'e parent"s% (as died* Pro'ided3 -(at no proceedings s(all be initiated )it(in si6 "?% +ont(s !ro+ t(e ti+e o! deat( o! said parent"s%.

-(e !ollo)ing +a be adopted do+esticall

. ." .> .* minor who has been administratively or 'udicially declared available for adoptionC legitimate child of one spouse by the other spouseC illegitimate child by a <ualified adopter to improve hisNher status to that of legitimacyC anyone who has been consistently considered and treated by the adopter as his child since minority .@ child whose adoption has been previously rescindedC or .4 a child whose biological or adoptive parent has died+ provided that no proceedings shall be initiated within 4 months from the death of said parent.

b. Inter8countr Adoption "Sec. A and ;M!N ICA%

Sec. A. =ho ay be Adopted. 8 Onl a legall !ree c(ild +a be t(e subject o! inter8 countr adoption. 666 Sec. ;. !efinition of 8erms. 8 As used in t(is Act3 t(e ter+ !% Legall 8!ree c(ild +eans a c(ild )(o (as been 'oluntaril or in'oluntaril co++itted to t(e Depart+ent3 in accordance )it( t(e C(ild and Gout( 9el!are Code.

$. Rule @@* Adoption and Custod o! Minors

Sec. &. /enue. A person desiring to adopt anot(er or (a'e t(e custod o! a +inor s(all present (is petition to t(e Court o! :irst Instance o! t(e pro'ince3 or t(e +unicipal or justice o! t(e peace court o! t(e cit or +unicipalit in )(ic( (e resides. In t(e Cit o! Manila3 t(e proceedings s(all be instituted in t(e 2u'enile and Do+estic Relations Court.

0enue o! adoption proceedings

. #1; of the prospective adopted ." In the ;ity of (anila ? -uvenile and 8omestic #elations ;ourt. Sec. $. &ontents of petition. -(e petition !or adoption s(all contain t(e sa+e allegations re7uired in a petition !or guardians(ip3 to )it* "a% -(e jurisdictional !acts, "b% -(e 7uali!ications o! t(e adopter, "c% -(at t(e adopter is not dis7uali!ied b la), "d% -(e na+e3 age3 and residence o! t(e person to be adopted and o! (is relati'es or o! t(e persons )(o (a'e (i+ under t(eir care,

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3*

"e% -(e probable 'alue and c(aracter o! t(e estate o! t(e person to be adopted. cf Sec. ) 8AA
Sec. ). ,!o May Adopt. Q 1he following may adopt5 (a) Any =ilipino citi6en of legal age+ in possession of full civil capacity and legal rights+ of good moral character+ has not been convicted of any crime involving moral turpitude+ emotionally and psychologically capable of caring for children+ at least si&teen ( 4) years older than the adoptee+ and who is in a position to support and care for hisNher children in 7eeping with the means of the family. 1he re<uirement of si&teen ( 4) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee+ or is the spouse of the adopteePs parentC (b) Any alien possessing the same <ualifications as above stated for =ilipino nationals5 Provided+ 1hat hisNher country has diplomatic relations with the #epublic of the Philippines+ that heNshe has been living in the Philippines for at least three (>) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered+ that heNshe has been certified by hisNher diplomatic or consular office or any appropriate government agency that heNshe has the legal capacity to adopt in hisNher country+ and that hisNher government allows the adoptee to enter hisNher country as hisNher adopted sonNdaughter5 Provided+ =urther+ 1hat the re<uirements on residency and certification of the alienPs <ualification to adopt in hisNher country may be waived for the following5 (i) a former =ilipino citi6en who see7s to adopt a relative within the fourth (*th) degree of consanguinity or affinityC or (ii) one who see7s to adopt the legitimate sonNdaughter of hisNher =ilipino spouseC or (iii) one who is married to a =ilipino citi6en and see7s to adopt 'ointly with hisNher spouse a relative within the fourth (*th) degree of consanguinity or affinity of the =ilipino spouseC or (c) 1he guardian with respect to the ward after the termination of the guardianship and clearance of hisNher financial accountabilities. Husband and wife shall 'ointly adopt+ e&cept in the following cases5 (i) if one spouse see7s to adopt the legitimate sonNdaughter of the otherC or (ii) if one spouse see7s to adopt hisNher own illegitimate sonNdaughter5 Provided+ However+ that the other spouse has signified hisNher consent theretoC or (iii) if the spouses are legally separated from each other. In case husband and wife 'ointly adopt+ or one spouse adopts the illegitimate sonNdaughter of the other+ 'oint parental authority shall be e&ercised by the spouses.

cf Sec. $ I;A
Sec. $. ,!o May Adopt. , An alien or a =ilipino citi6en permanently residing abroad may file an application for inter,country adoption of a =ilipino child if heNshe5 a) is at least twenty,seven (")) years of age and at least si&teen ( 4) years older than the child to be adopted+ at the time of application unless the adoptor is the parent by nature of the child to be adopted or the spouse of such parent5 b) if married+ hisNher spouse must 'ointly file for the adoptionC c) 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 hisNher countryC d) has not been convicted of a crime involving moral turpitudeC e) is eligible to adopt under hisNher national lawC f) is in a position to provide the proper care and support and to give the necessary moral values and e&ample to all his children+ including the child to be adoptedC

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3@ g) agrees to uphold the basic rights of the child as embodied under Philippine laws+ the D.A. ;onvention on the #ights of the ;hild+ and to abide by the rules and regulations issued to implement the provisions of this ActC h) comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authori6ed and accredited agency and that adoption is allowed under hisNher national lawsC and i) possesses all the <ualifications and none of the dis<ualifications provided herein and in other applicable Philippine laws.

9(o +a adopt do+esticall

. 1he guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. ." Lualifications for all non,guardian adopter .a legal age .b in possession of full civil capacity and legal rights .c good moral character .d not been convicted of any crime involving moral turpitude .e emotionally and psychologically capable of caring for children .f at least 4 years older than the adopteeC may be waived when the adopter is ) the biological parent of the adoptee+ or )" the spouse of the adopteePs parentC .g in a position to support and care for hisNher children in 7eeping with the means of the family .> Additional <ualifications for non,guardian aliens .a His country has diplomatic relations with the Philippines .b Philippine resident for at least > continuous years prior to the filing of the application for adoption until the adoption decree is entered .c has been certified by his diplomatic or consular office or any appropriate government agency that ) he has the legal capacity to adopt in his country )" his government allows the adoptee to enter his country as his adopted child .d #esidency and certification may be waived for the following5 ) a former =ilipino who see7s to adopt a relative within the * th degree of consanguinity or affinityC or )" one who see7s to adopt the legitimate child of his =ilipino spouseC or )> one who is married to a =ilipino and see7s to adopt 'ointly with his spouse a relative within the *th degree of consanguinity or affinity of the =ilipino spouse GR5 In domestic adoption+ husband and wife shall 'ointly adopt E6ceptions5 . spouse see7s to adopt the legitimate child of the otherC or ." spouse see7s to adopt his own illegitimate child5 Provided+ However+ that the other spouse has signified his consent .> spouses are legally separated from each other. In case husband and wife 'ointly adopt+ or one spouse adopts the illegitimate child of the other+ 'oint parental authority shall be e&ercised by the spouses.

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34

Huali!ications o! inter8countr adopter

. non,Philippine resident ." at least ") years old .> at least 4 years older than the child to be adopted+ unless the adoptor is the biological parent or the spouse of such parent5 .* spouses must 'ointly adopt (de 0eon5 no e&ceptions) .@ capacity to act and assume all rights and responsibilities of parental authority under his national laws .4 has undergone the appropriate counseling from an accredited counselor in his countryC .) has not been convicted of a crime involving moral turpitudeC .3 eligible to adopt under his national lawC .$ in a position to provide the proper care and support and to give the necessary moral values and e&ample to all his children+ including the child to be adoptedC . 9 agrees to uphold the basic rights of the child as embodied under .a Philippine laws .b the D.A. ;onvention on the #ights of the ;hild .c the rules and regulations issued to implement the provisions of the I;AC . comes from a country .a with whom the Philippines has diplomatic relations and .b whose government maintains a similarly authori6ed and accredited agency .c whose laws allow adoption . " possesses all the <ualifications and none of the dis<ualifications provided herein and in other applicable Philippine laws. de 0eon5 Aote that in domestic adoption+ there are e&ceptions to the rule that spouses must 'ointly adopt. In inter,country adoption+ spouses must always adopt 'ointly+ AE %X;%P1IEAS. Sec. ;. &onsent to adoption. -(ere s(all be !iled )it( t(e petition a )ritten consent to t(e adoption signed b 666 eac( o! its (the child2s) 1no)n li'ing parents )(o is not insane or (opelessl inte+perate or (as not abandoned suc( c(ild3 or i! t(ere are no suc( parents b t(e general guardian or guardian ad lite+ o! t(e c(ild3 or i! t(e c(ild is in t(e custod o! an orp(an as lu+3 c(ildren<s (o+e3 or bene'olent societ or person3 b t(e proper o!!icer or o!!icers o! suc( as lu+3 (o+e3 or societ 3 or b suc( person, but i! t(e c(ild is illegiti+ate and (as not been recogni/ed3 t(e consent o! its !at(er to t(e adoption s(all not be re7uired. I! t(e person to be adopted is o! age3 onl (is or (er consent and t(at o! t(e spouse3 i! an 3 s(all be re7uired. cf Sec. $ 8AA
Sec. $. ,!ose Consent is ecessary to t!e Adoption. Q After being properly counseled and informed of hisNher right to give or withhold hisNher approval of the adoption+ the written consent of the following to the adoption is hereby re<uired5 (a) 1he adoptee+ if ten ( 9) years of age or overC (b) 1he biological parent(s) of the child+ if 7nown+ or the legal guardian+ or the proper government instrumentality which has legal custody of the childC (c) 1he legitimate and adopted sonsNdaughters+ ten ( 9) years of age or over+ of the adopter(s) and adoptee+ if anyC

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3) (d) 1he illegitimate sonsNdaughters+ ten ( 9) years of age or over+ of the adopter if living with said adopter and the latterPs spouse+ if anyC and (e) 1he spouse+ if any+ of the person adopting or to be adopted.

Consents re7uired in do+estic adoption

. adoptee at least 9 years old ." either (in order of priority) .a biological parents who ) is not insane )" is not hopelessly intemperate or )> has not abandoned such child .b legal guardian+ or .c proper government instrumentality which has legal custody .> legitimate and adopted children of the adopter and adoptee at least 9 years old .* illegitimate children+ at least 9 years old+ of the adopter if living with said adopter and the latterPs spouse+ .@ spouse of the adopter and adopted If the adopted is illegitimate and has not been recogni6ed+ the consent of its father to the adoption shall not be re<uired. If the person to be adopted is of age+ only his or her consent and that of the spouse+ if any+ shall be re<uired. (de 0eon5 it is unclear whether these provisions have been repealed by the 8omestic Adoption Act). de 0eon5 Aote that there are no specific consent re<uirements in the Inter,country Adoption Acts. It is submitted that the consent re<uirements under the 8omestic Adoption Act applies as well. Sec. 5. ?rder for hearing. I! t(e petition and consent !iled are su!!icient in !or+ and substance3 t(e court3 b an order reciting t(e purpose o! t(e petition3 s(all !i6 a date and place !or t(e (earing t(ereo!3 )(ic( date s(all not be +ore t(an si6 "?% +ont(s a!ter t(e entr o! t(e order3 and s(all direct t(at a cop o! t(e order be publis(ed be!ore t(e (earing at least once a )ee1 !or t(ree ";% successi'e )ee1s in so+e ne)spaper o! general circulation publis(ed in t(e pro'ince3 as t(e court s(all dee+ best. cf Secs. 9, " 8AA
Sec. 9. -urried (ecisions. Q In all proceedings for adoption+ the court shall re<uire proof that the biological parent(s) has been properly counseled to prevent himNher from ma7ing hurried decisions caused by strain or an&iety to give up the child+ and to sustain that all measures to strengthen the family have been e&hausted and that any prolonged stay of the child in hisNher own home will be inimical to hisNher welfare and interest. Sec. . Case Study. Q Ao petition for adoption shall be set for hearing unless a licensed social wor7er of the 8epartment+ the social service office of the local government unit+ or any child,placing or child,caring agency has made a case study of the adoptee+ hisNher biological parent(s)+ as well as the adopter(s)+ and has submitted the report and recommendations on the matter to the court hearing such petition. At the time of preparation of the adopteePs case study+ the concerned social wor7er shall confirm with the ;ivil #egistry the real identity and registered name of the adoptee. If the birth of the adoptee was not registered with the ;ivil #egistry+ it shall be the responsibility of the concerned social wor7er to ensure that the adoptee is registered. 1he case study on the adoptee shall establish that heNshe is legally available for adoption and that the documents to support this fact are valid and authentic. =urther+ the case study of the adopter(s) shall ascertain hisNher genuine intentions and that the adoption is in the best interest of the child.

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33 1he 8epartment shall intervene on behalf of the adoptee if it finds+ after the conduct of the case studies+ that the petition should be denied. 1he case studies and other relevant documents and records pertaining to the adoptee and the adoption shall be preserved by the 8epartment. Sec. ". Supervised &rial Custody. Q Ao petition for adoption shall be finally granted until the adopter(s) has been given by the court a supervised trial custody period for at least si& (4) months within which the parties are e&pected to ad'ust psychologically and emotionally to each other and establish a bonding relationship. 8uring said period+ temporary parental authority shall be vested in the adopter(s). 1he court may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee+ stating the reasons for the reduction of the period. However+ for alien adopter(s)+ heNshe must complete the si& (4),month trial custody e&cept for those enumerated in Sec. ) (b) (i) (ii) (iii) .alien adopters "!ose residency and certification re/uirements may be "aived0 . If the child is below seven ()) years of age and is placed with the prospective adopter(s) through a pre, adoption placement authority issued by the 8epartment+ the prospective adopter(s) shall en'oy all the benefits to which biological parent(s) is entitled from the date the adoptee is placed with the prospective adopter(s).

cf Secs. 9, @ I;A
Sec. 9. ,!ere to File Application. , An application to adopt a =ilipino child shall be filed either with the Philippine #egional 1rial ;ourt having 'urisdiction over the child+ or with the Foard+ through an intermediate agency+ whether governmental or an authori6ed and accredited agency+ in the country of the prospective adoptive parents+ which application shall be in accordance with the re<uirements as set forth in the implementing rules and regulations to be promulgated by the Foard. 1he application shall be supported by the following documents written and officially translated in %nglish. a) Firth certificate of applicant(s)C b) (arriage contract+ if married+ and divorce decree+ if applicableC c) :ritten consent of their biological or adoptive children above ten ( 9) years of age+ in the form of sworn statementC d) Physical+ medical and psychological evaluation by a duly licensed physician and psychologistC e) Income ta& returns or any document showing the financial capability of the applicant(s)C f) Police clearance of applicant(s)C g) ;haracter reference from the local churchNminister+ the applicantPs employer and a member of the immediate community who have 7nown the applicant(s) for at least five (@) yearsC and h) #ecent postcard,si6e pictures of the applicant(s) and his immediate familyC 1he #ules of ;ourt shall apply in case of adoption by 'udicial proceedings. Sec. . Family Selection1Matc!ing. , Ao child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. 1he clearance+ as issued by the Foard+ with the copy of the minutes of the meetings+ shall form part of the records of the child to be adopted. :hen the Foard is ready to transmit the Placement Authority to the authori6ed and accredited inter,country adoption agency and all the travel documents of the child are ready+ the adoptive parents+ or any one of them+ shall personally fetch the child in the Philippines. Sec. ". Pre2adoptive Placement Costs. , 1he applicant(s) shall bear the following costs incidental to the placement of the childC a) 1he cost of bringing the child from the Philippines to the residence of the applicant(s) abroad+ including all travel e&penses within the Philippines and abroadC and b) 1he cost of passport+ visa+ medical e&amination and psychological evaluation re<uired+ and other related e&penses.

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3$ Sec. >. Fees3 C!arges and Assessments. , =ees+ charges+ and assessments collected by the Foard in the e&ercise of its functions shall be used solely to process applications for inter,country adoption and to support the activities of the Foard. Sec. *. Supervision of &rial Custody. , 1he governmental agency or the authori6ed and accredited agency in the country of the adoptive parents which filed the application for inter,country adoption shall be responsible for the trial custody and the care of the child. It shall also provide family counseling and other related services. 1he trial custody shall be for a period of si& (4) months from the time of placement. Enly after the lapse of the period of trial custody shall a decree of adoption be issued in the said country a copy of which shall be sent to the Foard to form part of the records of the child. 8uring the trial custody+ the adopting parent(s) shall submit to the governmental agency or the authori6ed and accredited agency+ which shall in turn transmit a copy to the Foard+ a progress report of the childPs ad'ustment. 1he progress report shall be ta7en into consideration in deciding whether or not to issue the decree of adoption. 1he 8epartment of =oreign Affairs shall set up a system by which =ilipino children sent abroad for trial custody are monitored and chec7ed as reported by the authori6ed and accredited inter,country adoption agency as well as the repatriation to the Philippines of a =ilipino child whose adoption has not been approved. Sec. @. E4ecutive Agreements. , 1he 8epartment of =oreign Affairs+ upon representation of the Foard+ shall cause the preparation of %&ecutive Agreements with countries of the foreign adoption agencies to ensure the legitimate concurrence of said countries in upholding the safeguards provided by this Act.

de 0eon5 Aote that adoption and estate proceedings are re<uired to be published+ unli7e in guardianship proceedings. Sec. =. 7earing and judgment. Fpon satis!actor proo! in open court on t(e date !i6ed in t(e order t(at suc( order (as been publis(ed as directed3 t(at t(e allegations o! t(e petition are true3 and t(at it is a proper case !or adoption and t(e petitioner or petitioners are able to bring up and educate t(e c(ild properl 3 t(e court s(all adjudge t(at t(ence!ort( t(e c(ild is !reed !ro+ all legal obligations o! obedience and +aintenance )it( respect to its natural parents3 e6cept t(e +ot(er )(en t(e c(ild is adopted b (er (usband3 and is3 to all legal intents and purposes3 t(e c(ild o! t(e petitioner or petitioners3 and t(at its surna+e is c(anged to t(at o! t(e petitioner or petitioners. -(e adopted person or c(ild s(all t(ereupon beco+e t(e legal (eir o! (is parents b adoption and s(all also re+ain t(e legal (eir o! (is natural parents. In case o! t(e deat( o! t(e adopted person or c(ild3 (is parents and relati'es b nature3 and not b adoption3 s(all be (is legal (eirs. cf Secs. > and 4, 3 8AA
Sec. >. (ecree of Adoption. Q If+ after the publication of the order of hearing has been complied with+ and no opposition has been interposed to the petition+ and after consideration of the case studies+ the <ualifications of the adopter(s)+ trial custody report and the evidence submitted+ the court is convinced that the petitioners are <ualified to adopt+ and that the adoption would redound to the best interest of the adoptee+ a decree of adoption shall be entered which shall be effective as of the date the original petition was filed. 1his provision shall also apply in case the petitioner(s) dies before the issuance of the decree of adoption to protect the interest of the adoptee. 1he decree shall state the name by which the child is to be 7nown. Sec. 4. Parental Aut!ority. Q %&cept in cases where the biological parent is the spouse of the adopter+ all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s). Sec. ). Legitimacy. Q 1he adoptee shall be considered the legitimate sonNdaughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate

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$9 sonsNdaughters born to them without discrimination of any 7ind. 1o this end+ the adoptee is entitled to love+ guidance+ and support in 7eeping with the means of the family. Sec. 3. Succession. Q In legal and intestate succession+ the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However+ if the adoptee and hisNher biological parent(s) had left a will+ the law on testamentary succession shall govern.

E!!ects o! Adoption
. 1he decree shall state the name by which the child is to be 7nown. ." all legal ties between the biological parents and the adoptee shall be severed and the same shall then be vested on the adopters+ e&cept in cases where the biological parent is the spouse of the adopter .> adoptee shall be considered the legitimate child of the adopters .* In legal and intestate succession+ the adopters and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. de 0eon5 Aote that even under the 8omestic Adoption Act+ the adopted can not represent the adopter in terms of successional rights. Sec. ?. Proceedings as to child whose parents are separated. Appeal. 9(en (usband and )i!e are di'orced or li'ing separatel and apart !ro+ eac( ot(er3 and t(e 7uestion as to t(e care3 custod 3 and control o! a c(ild or c(ildren o! t(eir +arriage is broug(t be!ore a Court o! :irst Instance b petition or as an incident to an ot(er proceeding3 t(e court3 upon (earing t(e testi+on as +a be pertinent3 s(all a)ard t(e care3 custod 3 and control o! eac( suc( c(ild as )ill be !or its best interest3 per+itting t(e c(ild to c(oose )(ic( parent it pre!ers to li'e )it( i! it be o'er ten ears o! age3 unless t(e parent so c(osen be un!it to ta1e c(arge o! t(e c(ild b reason o! +oral depra'it 3 (abitual drun1enness3 incapacit 3 or po'ert . I!3 upon suc( (earing3 it appears t(at bot( parents are i+proper persons to (a'e t(e care3 custod 3 and control o! t(e c(ild3 t(e court +a eit(er designate t(e paternal or +aternal grandparent o! t(e c(ild3 or (is oldest brot(er or sister3 or so+e reputable and discreet person to ta1e c(arge o! suc( c(ild3 or co++it it to an suitable as lu+3 c(ildren<s (o+e3 or bene'olent societ . -(e court +a in con!or+it )it( t(e pro'isions o! t(e Ci'il Code order eit(er or bot( parents to support or (elp support said c(ild3 irrespecti'e o! )(o +a be its custodian3 and +a +a1e an order t(at is just and reasonable per+itting t(e parent )(o is depri'ed o! its care and custod to 'isit t(e c(ild or (a'e te+porar custod t(ereo!. Eit(er parent +a appeal !ro+ an order +ade in accordance )it( t(e pro'isions o! t(is section. No c(ild under se'en ears o! age s(all be separated !ro+ its +ot(er3 unless t(e court !inds t(ere are co+pelling reasons t(ere!or. cf Arts. 4> (>)+ " > and " * =;
Art. 4>. 1he decree of legal separation shall have the following effects5 (>) 1he custody of the minor children shall be awarded to the innocent spouse+ sub'ect to the provisions of Article " > of this ;odeC and Art. " >. In case of separation of the parents+ parental authority shall be e&ercised by the parent designated by the ;ourt. 1he ;ourt shall ta7e into account all relevant considerations+ especially the choice of the child over seven years of age+ unless the parent chosen is unfit. (n) Ao child under seven years of age shall be separated from the mother+ unless the court finds compelling reasons to order otherwise.

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$ Art. " *. In case of death+ absence or unsuitability of the parents+ substitute parental authority shall be e&ercised by the surviving grandparent. In case several survive+ the one designated by the court+ ta7ing into account the same consideration mentioned in the preceding article+ shall e&ercise the authority. (>@@a)

Sec. #. Proceedings as to vagrant or abused child. 9(en t(e parents o! an +inor c(ild are dead3 or b reason o! long absence or legal or p( sical disabilit (a'e abandoned it3 or cannot support it t(roug( 'agranc 3 negligence3 or +isconduct3 or neglect or re!use to support it3 or treat it )it( e6cessi'e (ars(ness or gi'e it corrupting orders3 counsels3 or e6a+ples3 or cause or allo) it to engage in begging3 or to co++it o!!enses against t(e la)3 t(e proper Court o! :irst Instance3 upon petition !iled b so+e reputable resident o! t(e pro'ince setting !ort( t(e !acts3 +a issue an order re7uiring suc( parents to s(o) cause3 or3 i! t(e parents are dead or cannot be !ound3 re7uiring t(e !iscal o! t(e pro'ince to s(o) cause3 at a ti+e and place !i6ed in t(e order3 )( t(e c(ild s(ould not be ta1en !ro+ its parents3 i! li'ing, and i! upon t(e (earing it appears t(at t(e allegations o! t(e petition are true3 and t(at it is !or t(e best interest o! t(e c(ild3 t(e court +a +a1e an order ta1ing it !ro+ its parents3 i! li'ing, and co++itting it to an suitable orp(an as lu+3 c(ildren<s (o+e3 or bene'olent societ or person to be ulti+atel placed3 b adoption or ot(er)ise3 in a (o+e !ound !or it b suc( as lu+3 c(ildren<s (o+e3 societ or person. Sec. A. Service of judgment. :inal orders or judg+ents under t(is rule s(all be ser'ed b t(e cler1 upon t(e ci'il registrar o! t(e cit or +unicipalit )(erein t(e court issuing t(e sa+e is situated. cf Secs. *, @ 8AA
Sec. *. Civil Registry Record. Q An amended certificate of birth shall be issued by the ;ivil #egistry+ as re<uired by the #ules of ;ourt+ attesting to the fact that the adoptee is the child of the adopter(s) by being registered with hisNher surname. 1he original certificate of birth shall be stamped ScancelledS with the annotation of the issuance of an amended birth certificate in its place and shall be sealed in the civil registry records. 1he new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended issue. Sec. @. Confidential ature of Proceedings and Records. Q All hearings in adoption cases shall be confidential and shall not be open to the public. All records+ boo7s+ and papers relating to the adoption cases in the files of the court+ the 8epartment+ or any other agency or institution participating in the adoption proceedings shall be 7ept strictly confidential. If the court finds that the disclosure of the information to a third person is necessary for purposes connected with or arising out of the adoption and will be for the best interest of the adoptee+ the court may merit the necessary information to be released+ restricting the purposes for which it may be used.

;. Rule &BB* Rescission and Re'ocation o! Adoption

Sec. &. =ho may file petitionE grounds. 666 (repealed by Sec. $+ 8omestic Adoption Act) cf Sec. $ 8AA
Sec. $. $rounds for Rescission of Adoption. Q Dpon petition of the adoptee+ with the assistance of the 8epartment if a minor or if over eighteen ( 3) years of age but is incapacitated+ as guardianNcounsel+ the adoption may be rescinded on any of the following grounds committed by the adopter(s)5 (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counselingC (b) attempt on the life of the adopteeC (c) se&ual assault or violenceC or (d) abandonment and failure to comply with parental obligations.

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$" Adoption+ being in the best interest of the child+ shall not be sub'ect to rescission by the adopter(s). However+ the adopter(s) may disinherit the adoptee for causes provided in Article $ $ of the ;ivil ;ode.

Grounds !or re'ocation o! adoption "can onl adopted%

.

be !iled b

repeated physical and verbal maltreatment by the adopters despite having undergone counselingC ." attempt on the life of the adopteeC .> se&ual assault or violenceC or .* abandonment and failure to comply with parental obligations. 1he adopter can not rescind the adoption+ but he may disinherit the adopted. Sec. $. ?rder to answer. -(e court in )(ic( t(e petition is !iled s(all issue an order re7uiring t(e ad'erse part to ans)er t(e petition )it(in !i!teen "&=% da s !ro+ receipt o! a cop t(ereo!. -(e order and a cop o! t(e petition s(all be ser'ed on t(e ad'erse part in suc( +anner as t(e court +a direct. Sec. ;. 3udgment. I! upon trial3 on t(e da set t(ere!or3 t(e court !inds t(at t(e allegations o! t(e petition are true3 it s(all render judg+ent ordering t(e rescission or re'ocation o! t(e adoption3 )it( or )it(out costs3 as justice re7uires. cf Sec. "9 8AA
Sec. "9. Effects of Rescission. Q If the petition is granted+ the parental authority of the adopteePs biological parent(s)+ if 7nown+ or the legal custody of the 8epartment shall be restored if the adoptee is still a minor or incapacitated. 1he reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be e&tinguished. 1he court shall order the ;ivil #egistrar to cancel the amended certificate of birth of the adoptee and restore hisNher original birth certificate. Succession rights shall revert to its status prior to adoption+ but only as of the date of 'udgment of 'udicial rescission. Iested rights ac<uired prior to 'udicial rescission shall be respected. All the foregoing effects of rescission of adoption shall be without pre'udice to the penalties imposable under the Penal ;ode if the criminal acts are properly proven.

Sec. 5. Service of judgment. A certi!ied cop o! t(e judg+ent rendered in accordance )it( t(e ne6t preceding section s(all be ser'ed upon t(e ci'il registrar concerned3 )it(in t(irt ";B% da s !ro+ rendition t(ereo!3 )(o s(all !ort()it( enter t(e action ta1en b t(e court in t(e register. Sec. =. 8ime within which to file petition. A +inor or ot(er incapacitated person +ust !ile t(e petition !or rescission or re'ocation o! adoption )it(in t(e !i'e "=% ears !ollo)ing (is +ajorit 3 or i! (e )as inco+petent at t(e ti+e o! t(e adoption3 )it(in t(e !i'e "=% ears !ollo)ing t(e reco'er !ro+ suc( inco+petenc . -(e adopter +ust also !ile t(e petition to set aside t(e adoption )it(in !i'e "=% ears !ro+ t(e ti+e t(e cause or causes gi'ing rise to t(e rescission or re'ocation o! t(e sa+e too1 place.

-i+e to !ile petition to rescind adoption

. by the minor or incompetent ? within @ years from ma'ority+ or if he was incompetent at the time of the adoption+ within @ years from the recovery from such incompetency. ." by adopter ? within @ years from the cause
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5. Cases !e la &ru4 v. !e la &ru4# )$ S&'A 20 *)+(21he proceedings for adoption and revocation of adoption are separate and distinct from each other. In the first what is determined is the propriety of establishing the relationship of parent and child between two persons not so related by nature. In the other proceeding+ either the adopting parent or the adopted see7s to severe the relationship previously established+ and the in<uiry refers to the truth of the grounds upon which the revocation is sought. Ence the proper court has granted a petitioner for adoption and the decree has become final the proceedings is terminated and closed. #ule $$ designates the venue of a proceeding for adoption+ which is the place where the petitioner resides+ but is silent with respect to the venue of proceeding for rescission and revocation of adoption (#ule 99). A subse<uent petition for revocation of the adoption is neither a continuation of nor an incident in the proceeding for adoption. It is an entirely new one+ dependent on facts which have happened since the decree of adoption. 1he venue of this new case+ applying #ule $$ in a suppletory character+ is also the place of the residence of the petitioner. 1he doctrine that no court has the power to interfere by in'unction with the 'udgments or decrees of a court of coordinate 'urisdiction is not applicable. 1he validity and effectiveness of the decree of adoption is not in <uestion and such decree is not sought to be en'oined nor its e&ecution restrained but what is sought is its revocation because of circumstances subse<uently supervening which+ under the law+ render the continuation of the adoptive relationship un'ustified and impractical. de 0eon5 Aote that in de la Cruz+ it was the adopter2s residence that was considered in determining venue. At that time+ the adopter can petition for rescission of adoption. Aow+ it is only the adopted who can petition for rescission. Hence+ it is always the residence of the adopted that is considered in determining venue of rescission of adoption proceedings.

5ieto v.

agat# )%( S&'A 1%% *)+,1-

=acts5 ;ouple in Buam (husband wor7s there) see7s to adopt nephew in the Philippines. 0ower court denies because the couple are non,residents and trial custody could not be had. Held5 1he fact that the prospective adopters reside temporarily in a foreign country does not dis<ualify them from adopting a minor child. Fesides+ the law specifically authori6es the court+ either upon its own or on petitionerPs motion+ to dispense with the trial custody if it finds that it is to the best interest of the child. In this case+ the (inister of Social Services and 8evelopment suggests that trial custody is unnecessary because the child was already comfortable with the couple and the couple was capable of disciplining the child.

Bobanovic v.

ontes# )2$ S&'A 2,1 *)+,(-

=acts5 Erder granting adoption became final. Adopting parents applied for travel clearance with the (SS8 for the adopted to travel with them to Australia. (SS8 refused on the ground that it was not notified of the petition nor of the order granting adoption. Held5 1he fact that the order setting the petition for adoption was published is ground to presume that (SS8 had 7nowledge of the adoption proceedings and could have intervened.

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onserrate v. &A# )0, S&'A )1% *)+,+1here is no e&isting law or rule that re<uires notice to the Solicitor Beneral as a condition precedent or as a 'urisdicitional re<uirement for the valid e&ercise of the court2s 'urisdiction in an adoption case. (1;s and #1;s have concurrent 'urisdiction on adoption cases (de 0eon5 cf with the new adoption #As). 1he adoption court has the power to delegate reception of evidence to the cler7 of court.

:. Rule &B&* .ospitali/ation o! Insane Persons

Sec. &. /enue. Petition for commitment. A petition !or t(e co++it+ent o! a person to a (ospital or ot(er place !or t(e insane +a be !iled )it( t(e Court o! :irst Instance o! t(e pro'ince )(ere t(e person alleged to be insane is !ound. -(e petition s(all be !iled b t(e Director o! .ealt( in t(e all cases )(ere3 in (is opinion3 suc( co++it+ent is !or t(e public )el!are3 or !or t(e )el!are o! said person )(o3 in (is judg+ent3 is insane3 and suc( person or t(e one (a'ing c(arged o! (i+ is opposed to (is being ta1en to a (ospital or ot(er place !or t(e insane. 0enue !or petition !or t(e co++it+ent o! an insane person to a (ospital ? #1; of the province where the person alleged to be insane is found. ? 1he petition shall be filed by the 8irector of Health Sec. $. ?rder for hearing. I! t(e petition !iled is su!!icient in !or+ and substance3 t(e court3 b an order reciting t(e purpose o! t(e petition3 s(all !i6 a date !or t(e (earing t(ereo!3 and cop o! suc( order s(all be ser'ed on t(e person alleged to be insane3 and to t(e one (a'ing c(arge o! (i+3 or on suc( o! (is relati'es residing in t(e pro'ince or cit as t(e judge +a dee+ proper. -(e court s(all !urt(er+ore order t(e s(eri!! to produce t(e alleged insane person3 i! possible3 on t(e date o! t(e (earing. de 0eon5 Aote that there is no publication re<uirement for hospitali6ation of insane persons. Sec. ;. 7earing and judgment. Fpon satis!actor proo!3 in open court on t(e date !i6ed in t(e order3 t(at t(e co++it+ent applied !or is !or t(e public )el!are or !or t(e )el!are o! t(e insane person3 and t(at (is relati'es are unable !or an reason to ta1e proper custod and care o! (i+3 t(e court s(all order (is co++it+ent to suc( (ospital or ot(er place !or t(e insane as +a be reco++ended b t(e Director o! .ealt(. -(e court s(all +a1e proper pro'isions !or t(e custod o! propert or +one belonging to t(e insane until a guardian be properl appointed. Sec. 5. !ischarge of insane. 9(en3 in t(e opinion o! t(e Director o! .ealt(3 t(e person ordered to be co++itted to a (ospital or ot(er place !or t(e insane is te+poraril or per+anentl cured3 or +a be released )it(out danger (e +a !ile t(e proper petition )it( t(e Court o! :irst Instance )(ic( ordered t(e co++it+ent. Sec. =. Assistance of fiscal in the proceeding. It s(all be t(e dut o! t(e pro'incial !iscal or in t(e Cit o! Manila t(e !iscal o! t(e cit 3 to prepare t(e petition !or t(e Director o! .ealt( and represent (i+ in court in all proceedings arising under t(e pro'isions o! t(is rule.

G. .abeas Corpus &. Rule &B$

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Sec. &. 8o what habeas corpus extends. E6cept as ot(er)ise e6pressl pro'ided b la)3 t(e )rit o! (abeas corpus s(all e6tend to all cases o! illegal con!ine+ent or detention b )(ic( an person is depri'ed o! (is libert 3 or b )(ic( t(e rig(t!ul custod o! an person is )it((eld !ro+ t(e person entitled t(ereto.

Scope o! (abeas corpus E all cases o! illegal con!ine+ent or detention b )(ic(

. any person is deprived of his liberty+ or ." the rightful custody of any person is withheld from the person entitled thereto. Sec. $. =ho may grant the writ. -(e )rit o! (abeas corpus +a be granted b t(e Supre+e Court3 or an +e+ber t(ereo!3 on an da and at an ti+e3 or b t(e Court o! Appeals or an +e+ber t(ereo! in t(e instances aut(ori/ed b la)3 and i! so granted it s(all be en!orceable an )(ere in t(e P(ilippines3 and +a be +ade returnable be!ore t(e court or an +e+ber t(ereo!3 or be!ore t(e Court o! :irst Instance3 or an judge t(ereo! !or t(e (earing and decision on t(e +erits. It +a also be granted b a Court o! :irst Instance3 or a judge t(ereo!3 on an da and at an ti+e3 and returnable be!ore (i+sel!3 en!orceable onl )it(in (is judicial district.

9(o +a grant t(e )rit o! (abeas corpus

. enforceable anywhere in the Philippines+ and may be made returnable before the court or any member thereof+ or before the #1;+ or any 'udge thereof for the hearing and decision on the merits. .a the S; or any member thereof ? on any day and at any time+ or .b the ;A or any member thereof ? in the instances authori6ed by law ." enforceable only within the 'udicial district and returnable before himself ? the #1;+ or a 'udge thereof+ on any day and at any time Sec. ;. 'eCuisites of application therefor. Application !or t(e )rit s(all be b petition signed and 'eri!ied eit(er b t(e part !or )(ose relie! it is intended3 or b so+e person on (is be(al!3 and s(all set !ort(* "a% -(at t(e person in )(ose be(al! t(e application is +ade is i+prisoned or restrained o! (is libert , "b% -(e o!!icer or na+e o! t(e person b )(o+ (e is so i+prisoned or restrained, or3 i! bot( are un1no)n or uncertain3 suc( o!!icer or person +a be described b an assu+ed appellation3 and t(e person )(o is ser'ed )it( t(e )rit s(all be dee+ed t(e person intended, "c% -(e place )(ere (e is so i+prisoned or restrained3 i! 1no)n, "d% A cop o! t(e co++it+ent or cause o! detention o! suc( person3 i! it can be procured )it(out i+pairing t(e e!!icienc o! t(e re+ed , or3 i! t(e i+prison+ent or restraint is )it(out an legal aut(orit 3 suc( !act s(all appear.

Re7uisites o! application !or t(e )rit o! (abeas corpus

. petition signed and verified either by the party for whose relief it is intended+ or by some person on his behalf ." shall set forth5

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.a the person in whose behalf the application is made is imprisoned or restrained of his libertyC .b the officer or name of the person by whom he is so imprisoned or restrainedC or+ if both are un7nown 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 intendedC .c the place where he is so imprisoned or restrained+ if 7nownC .d a copy of the commitment or cause of detention of such person+ if it can be procured without impairing the efficiency of the remedyC or+ if the imprisonment or restraint is without any legal authority+ such fact shall appear. Sec. 5. =hen writ not allowed or discharge authori4ed. I! it appears t(at t(e person alleged to be restrained o! (is libert is in t(e custod o! an o!!icer under process issued b a court or judge or b 'irtue o! a judg+ent or order o! a court o! record3 and t(at t(e court or judge (ad jurisdiction to issue t(e process3 render t(e judg+ent3 or +a1e t(e order3 t(e )rit s(all not be allo)ed, or i! t(e jurisdiction appears a!ter t(e )rit is allo)ed3 t(e person s(all not be disc(arged b reason o! an in!or+alit or de!ect in t(e process3 judg+ent3 or order. Nor s(all an t(ing in t(is rule be (eld to aut(ori/e t(e disc(arge o! a person c(arged )it( or con'icted o! an o!!ense in t(e P(ilippines3 or o! a person su!!ering i+prison+ent under la)!ul judg+ent.

Grounds !or denial o! t(e )rit o! (abeas corpus

. the person alleged to be restrained of his liberty is in the custody of an officer .a under process issued by a court or 'udge or .b by virtue of a 'udgment or order of a court of record+ and either ) the court or 'udge had 'urisdiction to issue the process+ render the 'udgment+ or ma7e the order+ or )" the 'urisdiction appears after the writ is allowed+ or )> mere informality or defect in the process+ 'udgment+ or order ." the petitioner is charged with or convicted of an offense in the Philippines+ or of a person suffering imprisonment under lawful 'udgment. Sec. =. =hen the writ must be granted and issued. A court or judge aut(ori/ed to grant t(e )rit +ust3 )(en a petition t(ere!or is presented and it appears t(at t(e )rit oug(t to issue3 grant t(e sa+e !ort()it(3 and i++ediatel t(ereupon t(e cler1 o! t(e court s(all issue t(e )rit under t(e seal o! t(e court, or in case o! e+ergenc 3 t(e judge +a issue t(e )rit under (is o)n (and3 and +a depute an o!!icer or person to ser'e it. Sec. ?. 8o whom writ directed# and what to reCuire. In case o! i+prison+ent or restraint b an o!!icer3 t(e )rit s(all be directed to (i+3 and s(all co++and (i+ to (a'e t(e bod o! t(e person restrained o! (is libert be!ore t(e court or judge designated in t(e )rit at t(e ti+e and place t(erein speci!ied. In case o! i+prison+ent or restraint b a person not an o!!icer3 t(e )rit s(all be directed to an o!!icer3 and s(all co++and (i+ to ta1e and (a'e t(e bod o! t(e person restrained o! (is libert be!ore t(e court or judge designated in t(e )rit at t(e ti+e and place t(erein speci!ied3 and to su++on t(e person b )(o+ (e is restrained t(en and t(ere to appear be!ore said court or judge to s(o) t(e cause o! t(e i+prison+ent or restraint.

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Sec. #. 7ow prisoner designated and writ served. -(e person to be produced s(ould be designated in t(e )rit b (is na+e3 i! 1no)n3 but i! (is na+e is not 1no)n (e +a be ot(er)ise described or identi!ied. -(e )rit +a be ser'ed in an pro'ince b t(e s(eri!! or ot(er proper o!!icer3 or b a person deputed b t(e court or judge. Ser'ice o! t(e )rit s(all be +ade b lea'ing t(e original )it( t(e person to )(o+ it is directed and preser'ing a cop on )(ic( to +a1e return o! ser'ice. I! t(at person cannot be !ound3 or (as not t(e prisoner in (is custod 3 t(en t(e ser'ice s(all be +ade on an ot(er person (a'ing or e6ercising suc( custod . Sec. A. 7ow writ executed and returned. -(e o!!icer to )(o+ t(e )rit is directed s(all con'e t(e person so i+prisoned or restrained3 and na+ed in t(e )rit3 be!ore t(e judge allo)ing t(e )rit3 or3 in case o! (is absence or disabilit 3 be!ore so+e ot(er judge o! t(e sa+e court3 on t(e da speci!ied in t(e )rit3 unless3 !ro+ sic1ness or in!ir+it o! t(e person directed to be produced3 suc( person cannot3 )it(out danger3 be broug(t be!ore t(e court or judge, and t(e o!!icer s(all +a1e due return o! t(e )rit3 toget(er )it( t(e da and t(e cause o! t(e caption and restraint o! suc( person according to t(e co++and t(ereo!. Sec. @. !efect of form. No )rit o! (abeas corpus can be disobe ed !or de!ect o! !or+3 i! it su!!icientl appears t(ere!ro+ in )(ose custod or under )(ose restraint t(e part i+prisoned or restrained is (eld and t(e court or judge be!ore )(o+ (e is to be broug(t. Sec. &B. &ontents of return. 9(en t(e person to be produced is i+prisoned or restrained b an o!!icer3 t(e person )(o +a1es t(e return s(all state t(erein3 and in ot(er cases t(e person in )(ose custod t(e prisoner is !ound s(all state3 in )riting to t(e court or judge be!ore )(o+ t(e )rit is returnable3 plainl and une7ui'ocabl * "a% 9(et(er (e (as or (as not t(e part in (is custod or po)er3 or under restraint, "b% I! (e (as t(e part in (is custod or po)er3 or under restraint3 t(e aut(orit and t(e true and )(ole cause t(ereo!3 set !ort( at large3 )it( a cop o! t(e )rit3 order3 e6ecution3 or ot(er process3 i! an 3 upon )(ic( t(e part is (eld, "c% I! t(e part is in (is custod or po)er or is restrained b (i+3 and is not produced3 particularl t(e nature and gra'it o! t(e sic1ness or in!ir+it o! suc( part b reason o! )(ic( (e cannot3 )it(out danger3 be broug(t be!ore t(e court or judge, "d% I! (e (as (ad t(e part in (is custod or po)er3 or under restraint3 and (as trans!erred suc( custod or restraint to anot(er3 particularl to )(o+3 at )(at ti+e3 !or )(at cause3 and b )(at aut(orit suc( trans!er )as +ade. Sec. &&. 'eturn to be signed and sworn to. -(e return or state+ent s(all be signed b t(e person )(o +a1es it, and s(all also be s)orn to b (i+ i! t(e prisoner is not produced3 and in all ot(er cases unless t(e return is +ade and signed b a s)orn public o!!icer in (is o!!icial capacit . Sec. &$. 7earing on return. Adjournments. 9(en t(e )rit is returned be!ore one judge3 at a ti+e )(en t(e court is in session3 (e +a !ort()it( adjourn t(e case into t(e court3 t(ere to be (eard and deter+ined. -(e court or judge be!ore )(o+ t(e )rit is returned or adjourned +ust i++ediatel proceed to (ear and e6a+ine t(e return3 and suc( ot(er +atters as are properl sub+itted !or consideration3 unless !or good cause s(o)n t(e (earing is adjourned3 in )(ic( e'ent t(e court or judge s(all +a1e suc( order !or t(e sa!e1eeping o! t(e person i+prisoned or restrained as t(e nature o! t(e case re7uires. I! t(e
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person i+prisoned or restrained is not produced because o! (is alleged sic1ness or in!ir+it 3 t(e court or judge +ust be satis!ied t(at it is so gra'e t(at suc( person cannot be produced )it(out danger3 be!ore proceeding to (ear and dispose o! t(e +atter. On t(e (earing t(e court or judge s(all disregard +atters o! !or+ and tec(nicalities in respect to an )arrant or order o! co++it+ent o! a court or o!!icer aut(ori/ed to co++it b la). Sec. &;. =hen the return evidence# and when only a plea. I! it appears t(at t(e prisoner is in custod under a )arrant o! co++it+ent in pursuance o! la)3 t(e return s(all be considered pri+a !acie e'idence o! t(e cause o! restraint, but i! (e is restrained o! (is libert b an alleged pri'ate aut(orit 3 t(e return s(all be considered onl as a plea o! t(e !acts t(erein set !ort(3 and t(e part clai+ing t(e custod +ust pro'e suc( !acts. Sec. &5. =hen person lawfully imprisoned recommitted# and when let to bail. I! it appears t(at t(e prisoner )as la)!ull co++itted3 and is plainl and speci!icall c(arged in t(e )arrant o! co++it+ent )it( an o!!ense punis(able b deat(3 (e s(all not be released3 disc(arged3 or bailed. I! (e is la)!ull i+prisoned or restrained on a c(arge o! (a'ing co++itted an o!!ense not so punis(able3 (e +a be reco++itted to i+prison+ent or ad+itted to bail in t(e discretion o! t(e court or judge. I! (e be ad+itted to bail3 (e s(all !ort()it( !ile a bond in suc( su+ as t(e court or judge dee+s reasonable3 considering t(e circu+stances o! t(e prisoner and t(e nature o! t(e o!!ense c(arged3 conditioned !or (is appearance be!ore t(e court )(ere t(e o!!ense is properl cogni/able to abide its order or judg+ent, and t(e court or judge s(all certi! t(e proceedings3 toget(er )it( t(e bond3 !ort()it( to t(e proper court. I! suc( bond is not so !iled3 t(e prisoner s(all be reco++itted to con!ine+ent.

I! it appears t(at t(e prisoner )as la)!ull co++itted3 and is plainl and speci!icall c(arged in t(e )arrant o! co++it+ent )it( an o!!ense punis(able b
. death ? he shall not be released+ discharged+ or bailed ." less than death ? he may be either .a recommitted to imprisonment or .b admitted to bail ? he shall file a bond conditioned for his appearance before the court where the offense is properly cogni6able to abide its order or 'udgmentC if such bond is not so filed+ the prisoner shall be recommitted to confinement. Sec. &=. =hen prisoner discharged if no appeal. 9(en t(e court or judge (as e6a+ined into t(e cause o! caption and restraint o! t(e prisoner3 and is satis!ied t(at (e is unla)!ull i+prisoned or restrained3 (e s(all !ort()it( order (is disc(arge !ro+ con!ine+ent3 but suc( disc(arge s(all not be e!!ecti'e until a cop o! t(e order (as been ser'ed on t(e o!!icer or person detaining t(e prisoner. I! t(e o!!icer or person detaining t(e prisoner does not desire to appeal3 t(e prisoner s(all be !ort()it( released. Sec. &?. Penalty for refusing to issue writ# or for disobeying the same. A cler1 o! a court )(o re!uses to issue t(e )rit a!ter allo)ance t(ereo! and de+and t(ere!or3 or a person to )(o+ a )rit is directed3 )(o neglects or re!uses to obe or +a1e return o! t(e sa+e according to t(e co++and t(ereo!3 or +a1es !alse return t(ereo!3 or )(o3 upon de+and +ade b or on be(al! o! t(e prisoner3 re!uses to deli'er to t(e person de+anding3 )it(in si6 "?% (ours a!ter t(e de+and t(ere!or3 a true cop o! t(e )arrant or order o! co++it+ent3

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s(all !or!eit to t(e part aggrie'ed t(e su+ o! one t(ousand pesos3 to be reco'ered in a proper action3 and +a also be punis(ed b t(e court or judge as !or conte+pt. Sec. &#. Person discharged not to be given imprisoned. A person )(o is set at libert upon a )rit o! (abeas corpus s(all not be again i+prisoned !or t(e sa+e o!!ense unless b t(e la)!ul order or process o! a court (a'ing jurisdiction o! t(e cause or o!!ense, and a person )(o 1no)ingl 3 contrar to t(e pro'isions o! t(is rule3 reco++its or i+prisons3 or causes to be co++itted or i+prisoned3 !or t(e sa+e o!!ense3 or pretended o!!ense3 an person so set at libert 3 or 1no)ingl aids or assists t(erein3 s(all !or!eit to t(e part aggrie'ed t(e su+ o! one t(ousand pesos3 to be reco'ered in a proper action3 not)it(standing an colorable pretense or 'ariation in t(e )arrant o! co++it+ent3 and +a also be punis(ed b t(e court or judge granting )rit as !or conte+pt. Sec. &A. =hen prisoner may be removed from one custody to another. A person co++itted to prison3 or in custod o! an o!!icer3 !or an cri+inal +atter3 s(all not be re+o'ed t(ere!ro+ into t(e custod o! anot(er o!!icer unless b legal process3 or t(e prisoner be deli'ered to an in!erior o!!icer to carr to jail3 or3 b order o! t(e proper court or judge3 be re+o'ed !ro+ one place to anot(er )it(in t(e P(ilippines !or trial3 or in case o! !ire3 epide+ic3 insurrection3 or ot(er necessit or public cala+it , and a person )(o3 a!ter suc( co++it+ent3 +a1es3 signs3 or countersigns an order !or suc( re+o'al contrar to t(is section3 s(all !or!eit to t(e part aggrie'ed t(e su+ o! one t(ousand pesos3 to be reco'ered in a proper action. Sec. &@. 'ecord of writ# fees and costs. -(e proceedings upon a )rit o! (abeas corpus s(all be recorded b t(e cler1 o! t(e court3 and upon t(e !inal disposition o! suc( proceedings t(e court or judge s(all +a1e suc( order as to costs as t(e case re7uires. -(e !ees o! o!!icers and )itnesses s(all be included in t(e costs ta6ed3 but no o!!icer or person s(all (a'e t(e rig(t to de+and pa +ent in ad'ance o! an !ees to )(ic( (e is entitled b 'irtue o! t(e proceedings. 9(en a person con!ined under color o! proceedings in a cri+inal case is disc(arged3 t(e costs s(all be ta6ed against t(e Republic o! t(e P(ilippines3 and paid out o! its -reasur , )(en a person in custod b 'irtue or under color o! proceedings in a ci'il case is disc(arged3 t(e costs s(all be ta6ed against (i+3 or against t(e person )(o signed t(e application !or t(e )rit3 or bot(3 as t(e court s(all direct.

$. Cases "on4ales v. /iola# () Phil. ,$2 *)+%1:here the petitioner is out on bail+ habeas corpus is not available. 1he restraint of liberty which would 'ustify the issuance of the writ must be more than a mere moral restraintC it must be actual or physical. 1here must be actual confinement or the present means of enforcing it.

/illavicencio v. Lu.ban# %+ Phil. 00, *)+)+Imprisonment is not the only restraint of liberty for which a writ of habeas corpus may issue. 8eprivation of freedom of action is enough. 1he forcible ta7ing of these women from (anila by officials of that city+ who handed them over to other parties+ who deposited them in a distant region+ deprived these women of freedom of locomotion 'ust as effectively as if they had been imprisoned.

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In fact+ it is the duty of a court or 'udge to grant a writ of habeas corpus if there is evidence that within the courtPs 'urisdiction a person is un'ustly imprisoned or restrained of his liberty+ though no application be made therefor. 1he mere fact that the officer to whom the writ is addressed has illegally parted with the custody of a person prior to the filing of the application for the writ+ is no reason why the writ should not issue. He was bound to use every effort to get the person bac7. He must do much more than write letters for the purpose. He must advertise+ and even if necessary himself go after the person+ and do everything that mortal man could do in the matter. 1he court would only accept clear proof of an absolute impossibility by way of e&cuse. An officerPs failure to produce the body of a person in obedience to a writ of habeas corpus+ without legal e&cuse therefore+ when he has power to do so+ constitutes contempt.

/elasco v. &A# $21 S&'A (00 *)++11hough habeas corpus may be available when the arrest was illegal+ supervening events may bar release+ e.g. filing of a complaint or information for the offense for which the accused is detained. de 0eon5 Aote that under the "999 #ules of ;riminal Procedure+ an application for bail is not a waiver of ob'ections to the illegality of his arrest (#ule *+ Sec. "4). In this sense+ #elasco was modified.

Alimpoos v. &A# )6( S&'A )1+ *)+,):here the petitioner was arrested by virtue of a warrant was irregularly issued+ the remedy is not habeas corpus+ but to move to set aside the warrant of arrest or to petition for a reinvestigation. 1he only respondent in a habeas corpus case is the person who has legal custody of the petitioner. 1he complaining witnesses in the criminal case are not proper respondents in a habeas corpus case+ neither can they appeal. 0astly+ there can be no damages awarded in habeas corpus proceedings.

.. Correction o! clerical errors or c(ange na+e &. E6tra8judicial "RA @B5A3 appro'ed $$ Marc( $BB&%
1his act claims to amend Arts. >)4 and * " A;;
Art. >)4. Ao person can change his name or surname without 'udicial authority. Art. * ". Ao entry in a civil register shall be changed or corrected+ without a 'udicial order. (n)

Section &. Authority to &orrect &lerical or 8ypographical Error and &hange of 9irst 5ame or 5ic.name. L No entr in a ci'il register s(all be c(anged or corrected )it(out a judicial order, e6cept !or clerical or t pograp(ical errors and c(ange o! !irst na+e or nic1na+e )(ic( can be corrected or c(anged b concerned cit or +unicipal ci'il registrar or consul general in accordance )it( t(e pro'isions o! t(is Act and its i+ple+enting rules and regulations. B#5 Ao entry in a civil register shall be altered without a 'udicial order %&ceptions5 city or municipal civil registrar or consul general can alter . clerical or typographical errors and ." change of first name or nic7name
#emedial 0aw #eviewer (ar7 de 0eon+ -8 "99

Sec. $. !efinitions of 8erms. L As used in t(is Act3 t(e !ollo)ing ter+s s(all +ean* "&% J&ity or municipal civil registrarJ re!ers to t(e (ead o! t(e local ci'il registr o!!ice o! t(e cit or +unicipalit 3 as t(e case +a be3 )(o is appointed as suc( b t(e cit or +unicipal +a or in accordance )it( t(e pro'isions o! e6isting la)s. "$% JPetitionerJ re!ers to a natural person !iling t(e petition and )(o (as direct and personal interest in t(e correction o! a clerical or t pograp(ical error in an entr or c(ange o! !irst na+e or nic1na+e in t(e ci'il register. ";% J&lerical or typographical errorJ re!ers to a +ista1e co++itted in t(e per!or+ance o! clerical )or1 in )riting3 cop ing3 transcribing or t ping an entr in t(e ci'il register t(at is (ar+less and innocuous3 suc( as +isspelled na+e or +isspelled place o! birt( or t(e li1e3 )(ic( is 'isible to t(e e es or ob'ious to t(e understanding3 and can be corrected or c(anged onl b re!erence to ot(er e6isting record or records* Provided# however# -(at no correction +ust in'ol'e t(e c(ange o! nationalit 3 age3 status or se6 o! t(e petitioner.

Re7uisites !or a clerical or t pograp(ical error

. a mista7e committed in the performance of clerical wor7 in writing+ copying+ transcribing or typing

." harmless and innocuous .> visible to the eyes or obvious to the understanding .* can be corrected or changed only by reference to other e&isting record or records ;an not be sub'ect of correction , change of . nationality ." age .> status or .* se& "5% J&ivil registerJ re!ers to t(e 'arious registr boo1s and related certi!icates and docu+ents 1ept in t(e arc(i'es o! t(e local ci'il registr o!!ices3 P(ilippine Consulates and o! t(e O!!ice o! t(e Ci'il Register General. "=% J&ivil registrar generalJ re!ers to t(e ad+inistrator o! t(e National Statistics O!!ice )(ic( is t(e agenc +andated to carr out and ad+inister t(e pro'ision o! la)s on ci'il registration. "?% J9irst nameJ re!ers to a na+e or nic1na+e gi'en to a person )(ic( +a consist o! one or +ore na+es in addition to t(e +iddle and last na+es. Sec. ;. =ho may 9ile the Petition and =here. L An person (a'ing direct and personal interest in t(e correction o! a clerical or t pograp(ical error in an entr and>or c(ange o! !irst na+e or nic1na+e in t(e ci'il register +a !ile3 in person3 a 'eri!ied petition )it( t(e local ci'il registr o!!ice o! t(e cit or +unicipalit )(ere t(e record being soug(t to be corrected or c(anged is 1ept.

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In case t(e petitioner (as alread +igrated to anot(er place in t(e countr and it )ould not be practical !or suc( part 3 in ter+s o! transportation e6penses3 ti+e and e!!ort to appear in person be!ore t(e local ci'il registrar 1eeping t(e docu+ents to be corrected or c(anged3 t(e petition +a be !iled3 in person3 )it( t(e local ci'il registrar o! t(e place )(ere t(e interested part is presentl residing or do+iciled. -(e t)o "$% local ci'il registrars concerned )ill t(en co++unicate to !acilitate t(e processing o! t(e petition. Citi/ens o! t(e P(ilippines )(o are presentl residing or do+iciled in !oreign countries +a !ile t(eir petition3 in person3 )it( t(e nearest P(ilippine Consulates. -(e petitions !iled )it( t(e cit or +unicipal ci'il registrar or t(e consul general s(all be processed in accordance )it( t(is Act and its i+ple+enting rules and regulations. All petitions !or t(e correction o! clerical or t pograp(ical errors and>or c(ange o! !irst na+es or nic1na+es +a be a'ailed o! onl once.

Re7uisites !or a Petition to correct clerical error or c(ange o! &st or nic1na+es

. petitioner has direct and personal interest in the alteration ." filed in person .> verified petition .* with the local civil registry office of the city or municipality where the record being sought to be altered is 7ept. .@ availed of only once.

E6ceptions* 9(en need not be !iled in person )it( local ci'il registrar
. migration to another place in the country ? filed in person with the local civil registrar of his present residence or domicile

." Philippine citi6ens presently residing or domiciled abroad ? filed in person with the nearest Philippine ;onsulates. Sec. 5. "rounds for &hange of 9irst 5ame or 5ic.name. L -(e petition !or c(ange o! !irst na+e or nic1na+e +a be allo)ed in an o! t(e !ollo)ing cases* "&% -(e petitioner !inds t(e !irst na+e or nic1na+e to be ridiculous3 tainted )it( dis(onor or e6tre+el di!!icult to )rite or pronounce, "$% -(e ne) !irst na+e or nic1na+e (as been (abituall and continuousl used b t(e petitioner and (e (as been publicl 1no)n b t(e !irst na+e or nic1na+e in t(e co++unit , or ";% -(e c(ange )ill a'oid con!usion.

Grounds !or C(ange o! :irst Na+e or Nic1na+e

. petitioner finds the first name or nic7name to be .a ridiculous

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.b tainted with dishonor or .c e&tremely difficult to write or pronounceC ." the new first name or nic7name has been .a habitually and continuously used by the petitioner and .b publicly 7nown by the first name or nic7name in the communityC or .> change will avoid confusion. Sec. =. 9orm and &ontents of the Petition. L -(e petition s(all be in t(e !or+ o! an a!!ida'it3 subscribed and s)orn to be!ore an person aut(ori/ed b la) to ad+inister oat(s. -(e a!!ida'it s(all set !ort( !acts necessar to establis( t(e +erits o! t(e petition and s(all s(o) a!!ir+ati'el t(at t(e petitioner is co+petent to testi! to t(e +atters stated. -(e petitioner s(all state t(e particular erroneous entr or entries )(ic( are soug(t to be corrected and>or t(e c(ange soug(t to be +ade. -(e petition s(all be supported )it( t(e !ollo)ing docu+ents* "&% A certi!ied true +ac(ine cop o! t(e certi!icate or o! t(e page or o! t(e registr boo1 containing t(e entr or entries soug(t to be corrected or c(anged, "$% At least t)o "$% public or pri'ate docu+ents s(o)ing t(e correct entr or entries upon )(ic( t(e correction or c(ange s(all be based, and ";% ot(er docu+ents )(ic( t(e petitioner or t(e cit or +unicipal ci'il registrar3 or t(e consul general +a consider rele'ant and necessar !or t(e appro'al o! t(e petition. In case o! c(ange o! !irst na+e or nic1na+e3 t(e petition s(all li1e)ise be supported )it( t(e docu+ents +entioned in t(e i++ediatel preceding paragrap(. In addition3 t(e petition s(all be publis(ed at least once a )ee1 !or t)o "$% consecuti'e )ee1s in a ne)spaper o! general circulation. :urt(er+ore3 t(e petitioner s(all sub+it a certi!ication !ro+ t(e appropriate la) en!orce+ent agencies t(at (e (as no pending case or no cri+inal record. -(e petition and its supporting papers s(all be !iled in t(ree ";% copies to be distributed as !ollo)s* first cop to t(e concerned cit or +unicipal ci'il registrar3 or t(e consul general, second cop to t(e O!!ice o! t(e Ci'il Registrar General, and t(e third cop to t(e petitioner.

:or+ and Contents o! t(e Petition

. affidavit ." subscribed and sworn .> setting forth .a facts necessary to establish the merits of the petition .b show affirmatively that the petitioner is competent to testify to the matters stated .c the particular erroneous entry or entries which are sought to be corrected andNor the change sought to be made. .* accompanying documents
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.a a certified true machine copy of the certificate or of the page or of the registry boo7 containing the entry or entries sought to be corrected or changedC .b at least " public or private documents showing the correct entry or entries upon which the correction or change shall be basedC and .c 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. .@ for change of first name or nic7name .a publication .b certification from the appropriate law enforcement agencies that he has no pending case or no criminal record. Sec. ?. !uties of the &ity of unicipal &ivil 'egistrar or the &onsul "eneral. L -(e cit or +unicipal ci'il registrar or t(e consul general to )(o+ t(e petition is presented s(all e6a+ine t(e petition and its supporting docu+ents. .e s(all post t(e petition in a conspicuous place pro'ided !or t(e purpose !or ten "&B% consecuti'e da s a!ter (e !inds t(e petition and its supporting docu+ents su!!icient in !or+ and substance. -(e cit or +unicipal ci'il registrar or t(e consul general s(all act on t(e petition and s(all render a decision not later t(an !i'e "=% )or1ing da s a!ter t(e co+pletion o! t(e posting and>or publication re7uire+ent. .e s(all trans+it a cop o! (is decision toget(er )it( t(e records o! t(e proceedings to t(e O!!ice o! t(e Ci'il Registrar General )it(in !i'e "=% )or1ing da s !ro+ t(e date o! t(e decision. Sec. #. !uties and Powers of the &ivil 'egistrar "eneral. L -(e ci'il registrar general s(all3 )it(in ten "&B% )or1ing da s !ro+ receipt o! t(e decision granting a petition3 e6ercise t(e po)er to i+pugn suc( decision b )a o! an objection based on t(e !ollo)ing grounds* "&% -(e error is not clerical or t pograp(ical, "$% -(e correction o! an entr or entries in t(e ci'il register is substantial or contro'ersial as it e!!ects t(e ci'il status o! a person, or ";% -(e basis used in c(anging t(e !irst na+e or nic1na+e o! a person does not !all under Section 5. -(e ci'il registrar general s(all i++ediatel noti! t(e cit or +unicipal ci'il registrar or t(e consul general o! t(e action ta1en on t(e decision. Fpon receipt o! t(e notice t(ereo!3 t(e cit or +unicipal ci'il registrar or t(e consul general s(all noti! t(e petitioner o! suc( action. -(e petitioner +a see1 reconsideration )it( t(e ci'il registrar general or !ile t(e appropriate petition )it( t(e proper court. I! t(e ci'il registrar general !ails to e6ercise (is po)er to i+pugn t(e decision o! t(e cit or +unicipal registrar or o! t(e consul general )it(in t(e period prescribed (erein3 suc( decision s(all beco+e !inal and e6ecutor . 9(ere t(e petition is denied b t(e cit or +unicipal ci'il registrar or t(e consul general3 t(e petitioner +a eit(er appeal t(e decision to t(e ci'il registrar general or !ile t(e appropriate petition )it( t(e proper court.

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Grounds !or i+pugning decision

. error is not clerical or typographical ." correction of an entry or entries in the civil register is substantial or controversial as it effects the civil status of a personC or .> no basis for changing the first name or nic7name If the civil registrar general fails 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 e&ecutory. :here the petition is denied by the city or municipal civil registrar or the consul general+ the petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court. Sec. A. Payment of 9ees. L -(e cit or +unicipal ci'il registrar or t(e consul general s(all be aut(ori/ed to collect reasonable !ees as a condition !or accepting t(e petition. An indigent petitioner s(all be e6e+pt !ro+ t(e pa +ent o! t(e said !ee. Sec. @. Penalty &lause. L 666 Sec. &B. :mplementing 'ules and 'egulations. L 666 Sec. &&. 'etroactivity &lause. L 666 Sec. &$. Separability &lause. L 666 Sec. &;. 'epealing &lause. L 666 Sec. &5. Effectivitiy &lause. L 666

$. 2udicial a. C(ange o! Na+e &% Rule &B;

1his rule implements Arts. >)4 of the ;ivil ;ode. Aote that this has been modified by #A $9*3.
Art. >)4. Ao person can change his name or surname without 'udicial authority.

Sec. &. /enue. A person desiring to c(ange (is na+e s(all present t(e petition to t(e Court o! :irst Instance o! t(e pro'ince in )(ic( (e resides3 or3 in t(e Cit o! Manila3 to t(e 2u'enile and Do+estic Relations Court.

0enue o! c(ange o! na+e

. #1; of province of residence of petitioner for at leat the past > years ." -uvenile and 8omestic #elations ;ourt+ in the ;ity of (anila Sec. $. &ontents of petition. A petition !or c(ange o! na+e s(all be signed and 'eri!ied b t(e person desiring (is na+e c(anged3 or so+e ot(er person on (is be(al!3 and s(all set !ort(* "a% -(at t(e petitioner (as been a bona !ide resident o! t(e pro'ince )(ere t(e petition is !iled !or at least t(ree ";% ears prior to t(e date o! suc( !iling,
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"b% -(e cause !or )(ic( t(e c(ange o! t(e petitioner<s na+e is soug(t, "c% -(e na+e as1ed !or. 1he petition for change of name must be verified. Sec. ;. ?rder for hearing. I! t(e petition !iled is su!!icient in !or+ and substance3 t(e court3 b an order reciting t(e purpose o! t(e petition3 s(all !i6 a date and place !or t(e (earing t(ereo!3 and s(all direct t(at a cop o! t(e order be publis(ed be!ore t(e (earing at least once a )ee1 !or t(ree ";% successi'e )ee1s in so+e ne)spaper o! general circulation publis(ed in t(e pro'ince3 as t(e court s(all dee+ best. -(e date set !or t(e (earing s(all not be )it(in t(irt ";B% da s prior to an election nor )it(in !our "5% +ont(s a!ter t(e last publication o! t(e notice. A petition for change of name should be published. Sec. 5. 7earing. An interested person +a appear at t(e (earing and oppose t(e petition. -(e Solicitor General or t(e proper pro'incial or cit !iscal s(all appear on be(al! o! t(e Go'ern+ent o! t(e Republic. Sec. =. 3udgment. Fpon satis!actor proo! in open court on t(e date !i6ed in t(e order t(at suc( order (as been publis(ed as directed and t(at t(e allegations o! t(e petition are true3 t(e court s(all3 i! proper and reasonable cause appears !or c(anging t(e na+e o! t(e petitioner3 adjudge t(at suc( na+e be c(anged in accordance )it( t(e pra er o! t(e petition. Sec. ?. Service of judgment. 2udg+ents or orders rendered in connection )it( t(is rule s(all be !urnis(ed t(e ci'il registrar o! t(e +unicipalit or cit )(ere t(e court issuing t(e sa+e is situated3 )(o s(all !ort()it( enter t(e sa+e in t(e ci'il register.

$% Cases San 'oCue v. 'epublic# $% S&'A 222 *)+(,1he real name of a person is that given him in the ;ivil #egister+ not the name by which he was bapti6ed in his church or by which he has been 7nown in the community+ or which he has adoptedC that the only way to change that name legally is for the interested party Sto file the special proceedings embodied in #ule 9>.S 1his is+ substantially+ what San #o<ue did. 1he petition was entitled Sto correct name in the birth certificate of 0eoncia San #o<ue+S but the body of the petition affirmatively alleged that while her name appearing on her birth certificate on file was 0ucia San #o<ue+ she Ssince her birth ..+ has been using and has always been 7nown as 0eoncia San #o<ue and not as 0ucia San #o<ue+ even in the performance of important civil actions li7e marriageS. %ssentially+ therefore+ the petition admitted that San #o<uePs real name was 0ucia San #o<ue which was her true name because it was the one appearing in the ;ivil #egister+ but that this notwithstanding+ she had been using continuously since birth and had been 7nown under the name of 0eoncia San #o<ue. 1hese allegations were duly proven during the hearing. Aotwithstanding the imperfection of language employed+ the petition was+ in essence+ one to secure 'udicial authority for San #o<ue to change her name from 0ucia to 0eoncia Q a petition which falls reasonably within the provisions of #ule 9>. 1hat the petition was entitled one Sto correct name in the birth certificate of 0eoncia San #o<ueS and prayed that San #o<uePs name appearing in her birth certificate be corrected accordingly did not necessarily ma7e the petition fall under the provisions of #ule 93+ because even under the provisions of #ule 9> the
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'udgment or order rendered in connection with said #ule shall be furnished the ;ivil #egistrar of the municipality or city where the ;ourt who issued the same is situated+ who shall forthwith enter the same in the civil register.

'epublic v. ACuino# +6 S&'A )0$ *)+0+1he petition for change of name shall set forth inter alia+ the name as7ed for. 1he re<uirement is mandatory and compliance therewith is essential+ for it is by such means that the court ac<uires 'urisdiction. 1he failure to include the name sought to be adopted in the title of the petition+ and conse<uently in the notices published in the newspaper is a substantial 'urisdictional infirmity. =or publication to be effective+ it must give a correct information. 1o inform+ the publication should recite+ among others+ the following facts5 (a) the name or names of applicantC (b) the cause for which the change of name is soughtC and (c) the new name as7ed for.

'otaCuio v. 'epublic# $$ S&'A $,6 *)+(,:hen the change appears to be necessary to avoid confusion+ and there is no claim or pretense that petitioner see7s the change to achieve some unlawful purpose+ the petition must be granted.

'epublic v.

arcos# ".'. LF%)6(1# )19eb)++6# ),$ S&'A $$%

=or a publication of a petition for a change of name to be valid+ the title thereof should include+ first+ his real name+ and second+ his aliases+ if any. 1he omission of her other alias Q S(ary PangS Q in the captions of the courtPs order and of the petition defeats the purpose of the publication. In view of that defect+ the trial court did not ac<uire 'urisdiction over the sub'ect of the proceedings. All aliases of the applicant must be set forth in the title of the published petition+ for the omission of any of such aliases+ would be fatal to the petition even if such other aliases are mentioned in the body of the petition. 1he following have been considered valid grounds for a change of name5 ( ) when the name is ridiculous+ dishonorable+ or e&tremely difficult to write or pronounceC (") when the change results as a legal conse<uence+ as in legitimationC (>) when the change will avoid confusionC (*) having continuously used and been 7nown since childhood by a =ilipino name+ unaware of his alien parentageC or (@) a sincere desire to adopt a =ilipino name to erase signs of former alienage+ all in good faith and not to pre'udice anybody. 1he general rule is that a change of name should not be permitted if it will give a false impression of family relationship to another where none actually e&ists. 1he petition for change of name must be filed by the person desiring to change hisNher name+ even if it may be signed and verified by some other person in his behalf. In this case+ however+ the petition was filed by Pang ;ha Luen not by (ay Sia. Hence+ only (ay Sia herself+ alias (anman Huang+ alias (ary Pang+ when she shall have reached the age of ma'ority+ may file the petition to change her name. 1he decision to change her name+ the reason for the change+ and the choice of a new name and surname shall be hers alone to ma7e. It must be her personal decision. Ao one else may ma7e it for her.

'epublic v. Belmonte# )1, S&'A )0% *)+,,=acts5 4 year old girl+ assisted by her mother+ wanted to have her name changed from Anita Po to Ieronica Pao. She also sought to have her father2s name appearing as Po Ou changed to Pao Ou and her mother2s name recorded as Pa7iat ;han changed to Helen ;han.

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Held5 1here was no showing that all interested persons were notified of the petition. Petition dismissed for not being sufficient in form and substance. A petition for a change of name and the correction of entries in the civil registry may be 'oined in the same proceeding+ provided all the re<uirements in both proceedings must be met.

'epublic v. Gosa# )(1 S&'A $+$ *)+,,1he title of the petition for change of name+ as published+ should include ) the applicant2s real name+ ") his aliases or other names+ if any+ and >) the name sought to be adopted+ even if the data are found in the body of the petition. 1he body of the petition+ as published+ should contain ) the name or names of the applicant+ and ") the cause for the changed name+ and >) the new name as7ed for. =ailure include the name sought to be adopted in the title of the petition+ nor in the title or caption of the notices published in the newspapers renders the trial court without 'urisdiction to hear and determine the petition.

Aasin v. 3udge# ShariHa !istrict &ourt# $2) S&'A (6( *)++1A married woman has the option+ not an obligation+ to use her husband2s name or surname. A 'udicial authori6ation is not necessary. :hen the marriage is terminated (e.g. annulled or (uslim divorce) the former wife need not see7 'udicial authori6ation to revert to her maiden name. A petition for 'udicial confirmation to revert to such maiden name is a superfluity. It is not covered by #ule 9> on ;hange of Aame or its special re<uisites (e.g. inclusion in the title the names by which the petitioner has been 7nown).

b. Cancellation or Correction o! Entries in t(e Ci'il Registr &% Rule &BA

1his rule implements Arts. * " of the ;ivil ;ode. Aote that this has been modified by #A $9*3.
Art. * ". Ao entry in a civil register shall be changed or corrected+ without a 'udicial order. (n)

Sec. &. =ho may file petition. An person interested in an act3 e'ent3 order or decree concerning t(e ci'il status o! persons )(ic( (as been recorded in t(e ci'il register3 +a !ile a 'eri!ied petition !or t(e cancellation or correction o! an entr relating t(ereto3 )it( t(e Court o! :irst Instance o! t(e pro'ince )(ere t(e corresponding ci'il registr is located.

Re7uisites !or a petition !or cancellation or correction o! entries in t(e ci'il registr
. petitioner is interested in any act+ event+ order or decree concerning the civil status of persons which has been recorded in the civil register

." verified petition .> #1; of the province where the civil registry is located. Sec. $. Entries subject to cancellation or correction. Fpon good and 'alid grounds3 t(e !ollo)ing entries in t(e ci'il register +a be cancelled or corrected* "a% birt(s, "b% +arriages, "c% deat(s, "d% legal separations, "e% judg+ents o! annul+ents o! +arriage, "!% judg+ents declaring +arriages 'oid !ro+ t(e beginning, "g% legiti+ations, "(% adoptions, "i% ac1no)ledg+ents o! natural c(ildren, "j% naturali/ation "1% election3 loss or reco'er o!

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9$

citi/ens(ip "l% ci'il interdiction, "+% judicial deter+ination o! !iliation, "n% 'oluntar e+ancipation o! a +inor, and "a% c(anges o! na+e.

Entries subject to cancellation or correction

. births ." marriages .> deaths .* legal separations .@ 'udgments of annulments of marriage .4 'udgments declaring marriages void from the beginning .) legitimations .3 adoptions .$ ac7nowledgments of natural children . 9 naturali6ation . election+ loss or recovery of citi6enship . " civil interdiction . > 'udicial determination of filiation . * voluntary emancipation of a minorC and . @ changes of name. Sec. ;. Parties. 9(en cancellation or correction o! an entr in t(e ci'il register is soug(t3 t(e ci'il registrar and all persons )(o (a'e or clai+ an interest )(ic( )ould be a!!ected t(ereb s(all be +ade parties to t(e proceeding. Sec. 5. 5otice and publication. Fpon t(e !iling o! t(e petition3 t(e court s(all3 b an order3 !i6 t(e ti+e and place !or t(e (earing o! t(e sa+e3 and cause reasonable notice t(ereo! to be gi'en to t(e persons na+ed in t(e petition. -(e court s(all also cause t(e order to be publis(ed once a )ee1 !or t(ree ";% consecuti'e )ee1s in a ne)spaper o! general circulation in t(e pro'ince. Publication is re<uired in a petition for cancellation or correction of entries in the civil registry. Sec. =. ?pposition. -(e ci'il registrar and an person (a'ing or clai+ing an interest under t(e entr )(ose cancellation or correction is soug(t +a 3 )it(in !i!teen "&=% da s !ro+ notice o! t(e petition3 or !ro+ t(e last date o! publication o! suc( notice3 !ile (is opposition t(ereto. Sec. ?. Expediting proceedings. -(e court in )(ic( t(e proceeding is broug(t +a +a1e orders e6pediting t(e proceedings3 and +a also grant preli+inar injunction !or t(e preser'ation o! t(e rig(ts o! t(e parties pending suc( proceedings. Sec. #. ?rder. A!ter (earing3 t(e court +a eit(er dis+iss t(e petition or issue an order granting t(e cancellation or correction pra ed !or. In eit(er case3 a certi!ied cop o! t(e

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judg+ent s(all be ser'ed upon t(e ci'il registrar concerned )(o s(all annotate t(e sa+e in (is record.

$% Cases 'epublic v. edina# ))+ S&'A $06 *)+,$J1his ruling has been abrogated by Republic v. #alenciaK Art. * " A;; and its implementing rule+ #ule 93+ allows only for correction of clerical or innocuous mista7es in the ;ivil #egistry. Subtantial corrections may not be had in a summary procedure such as #ule 93. de ;astro5 #ule 93 re<uires publication and inclusion as parties all persons or who claim any interest which would be affected by the alteration. 1his ma7es the action in rem+ which can not be described as .summary./ Aot being summary+ substantial corrections may be had under #ule 93. (Aote5 -ustice %scolin concurred in the main opinion)

Au v. &ivil 'egistrar# )$) S&'A ,0% *)+,%:here the correction sought is substantial+ e.g. affects the names and identities of the persons+ correction in the civil registry may be allowed where the person concerned is made a party and given the opportunity to be heard.

'epublic v. Bartolome# )%, S&'A 22$ *)+,1If the changes sought in the civil registry are substantial+ #ule 93 is not the proper remedy.

'epublic v. /alencia# )2) S&'A 2($ *)+,(Enly clerical errors in the civil registry may be corrected by summary procedure. Substantial errors can be corrected only in an adversarial proceeding. However+ where the trial court has conducted proceedings where all relevant facts have been fully and properly developed+ where opposing counsel have been given opportunity to demolish the opposite partyPs case+ and where the evidence has been thoroughly weighed and considered+ the suit or proceeding is adversarial. If all the procedural re<uirements of #ule 93 (civil registrar and interested persons made parties and notified+ publication+ opposition+ hearing) have been followed+ a petition for correction andNor cancellation of entries in the record of birth even if filed and conducted under #ule 93 can no longer be described as SsummaryS. :hen an opposition to the petition is filed either by the ;ivil #egistrar or any interested person and the opposition is actively prosecuted+ the proceedings thereon become adversary proceedings. Hence+ even substantial changes may be ordered in a #ule 93 proceeding. (Aote5 -ustice %scolin again concurred in the main+ and only+ opinion) Re7uire+ents !or an ad'ersarial proceeding . Presence of opposing parties ". notice to both parties >. relevant facts have been fully and properly developed *. opposing counsel was given an opportunity to rebut the opposite party2s case @. evidence has been thoroughly weighed and considered 4. compliance with the publication re<uirement

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de 0eon5 Aote that in #alencia+ the petition see7ing substantial changes under #ule 93 was allowed because the proceedings became adversarial after an opposition was filed. In *artolome+ the proceedings remained summary because no opposition was filed. It has been held that the corrections contemplated in Article * " include only corrections of mista7es that are clerical in nature. If the purpose of the petition is merely to correct the clerical errors which are visible to the eye or obvious to the understanding+ the court may+ under a summary procedure+ issue an order for the correction of the mista7e. However+ substantial and controversial alterations can only be allowed after appropriate adversary proceedings wherein all the parties who may be affected by the entries are notified or represented and evidence is submitted to prove the allegations of the complaint+ and proof to the contrary admitted. ( Labayo2 Ro"e v. Republic+ 43 S;#A "$* J $33K).

Batbatan v. ?ffice of Local &ivil 'egistrar# )), S&'A 021 *)+,$If the civil registry entry is contrary to law+ its correction is merely a clerical error which undoubtedly may be corrected via #ule 93.

&hiao Ben Lim v. Gosa# )2( S&'A %(( *)+,(Art. * " A;; does not say that it applies only to clerical errors and that the proedure to be used is summary in nature.

'epublic v. 9lojo# )1$ S&'A 116 *)+,0#ule 93 re<uires notice to all persons who may have any interest in the change sought to be affected and that they be made parties to the proceeding. #ule 93 is therefore not summary but adversarial.

'epublic v. &A# $11 S&'A ++ *)++(=acts5 Spouses ;aranto filed a petition for the adoption of (idael along with a prayer to correct his name to .(ichael./ Solicitor opposed on the ground that the petition was for adoption+ not for correction of the civil registry. Held5 1he correction was not properly included in the petition for adoption. A separate case under #ule 93 should be filed to correct the spelling of the name. #o&as,del ;astillo5 1his case goes against the principle of multiplicity of suits because the adoption proceedings would have necessarily caused a change in the surname of the adopted. 1he spouses merely wanted to correct the misspelling along with the change in the surname.

Leonor v. &.A.# $1( S&'A (+ *)++(=acts5 1here was in fact a marriage+ but the marriage turned out to be void. Held5 A separate action for declaration of nullity of marriage should be filed. de 0eon5 In #alencia+ the change was allowed because there was no marriage at all. In Leonor+ there was a marriage which was allegedly void+ hence before a change may be effected+ a separate action for declaration of nullity should have been filed.

'epublic v. Labrador# %61 S&'A 2%, *)+++=acts5 1he aunt filed the action on behalf of the child. Aot all indispensable parties was notified. Held5 #ule 93 allows for only clerical errors. 1he proceedings were not adversarial. Substantial corrections should be in an ordinary civil action.

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#o&as,del ;astillo5 1he S; was categorical that by its very nature+ #ule 93 is summary and not adversarial. So even if you comply with all the re<uisites of adversarial proceedings+ #ule 93 is still not the proper remedy in substantial corrections in the civil registry. Fut I still thin7 the correct doctrine is the #alencia ruling. de 0eon5 1o summari6e+ if the change sought is that of the name+ and there are > remedies . change of first name or nic7name ? petition to the local civil registrar via #A $9*3 (specific grounds only and availed only once)

." change of clerical errors in the typing of the name ? petition to the #1; via #ule 93 .> change of name ? petition to the #1; via #ule 9> If the change sought is clerical errors in other entries in the civil registry . petition to the local civil registrar via #A $9*3 ." petition to the #1; via #ule 93 If the change sought is substantial+ then the only remedy is an adversarial proceeding. However+ 'urisprudence is unclear whether #ule 93 is an adversarial proceeding. Medina ( $3") ruled that only clerical errors may be corrected. #alencia ( $34) ruled that if an opposition is filed and pursued+ then #ule 93 becomes adversarial and substantial changes may be ordered. Labrador ( $$$) returned to Medina and categorically ruled that only clerical errors may be corrected under #ule 93+ but it did not rule on the effect of a filing of an opposition. 1he problem is #alencia did not e&pressly abandon Medina. Labrador did not e&pressly abandon #alencia nor did it affirm Medina. I submit that #alencia is the correct ruling+ more so with the advent of #A $9*3. It seems #A $9*3 provides for an e&tra'udicial remedy for the clerical errors that Medina and Labrador ruled to be covered under #ule 93. =or #ule 93 to be of any use+ it should cover even substantial changes. I submit that publication+ even without subse<uent filing of an opposition by anyone+ is enough to transform a #ule 93 proceeding into an adversarial proceeding+ otherwise we would,be oppositors can easily defeat a proposed substantial change by simply not filing an opposition. =urthermore+ the nature of a clerical error is that it is obvious to the eye. If truly only clerical errors are allowed under #ule 93+ how can there be oppositorsM 1he mere cogni6ance by the court of the standing of an oppositor is a ruling that the alteration sought is not innocuous. If a court recogni6es an opposition+ then it also rules that the change sought is not innocuous. #ule 93 should be the proper remedy even for substantial changes. Publication and allowance of opposition is enough safeguards for the dangers feared in Medina. Fesides+ as -ustice Abad Santos said in his dissent in Medina+ the court has 7ept ruling that Art. * " and #ule 93 is not the remedy for substantial changes+ but did not rule what the proper remedy is.

I. Rule &B5* 0oluntar Dissolution o! Corporations

Sec. &. =here# by whom and on what showing application made. 666 (repealed by ;orporation ;ode) Sec. $. ?rder thereupon for filing objections. 666 (repealed by ;orporation ;ode) Sec. ;. 7earing# dissolution# and disposition of assets. 'eceiver. 666 (repealed by ;orporation ;ode) Sec. 5. =hat shall constitute record. 666 (repealed by ;orporation ;ode)
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2. Rule &B=* 2udicial Appro'al o! 0oluntar Recognition o! Minor Natural C(ildren

Sec. &. /enue. 9(ere judicial appro'al o! a 'oluntar recognition o! a +inor natural c(ild is re7uired3 suc( c(ild or (is parents s(all obtain t(e sa+e b !iling a petition to t(at e!!ect )it( t(e Court o! :irst Instance o! t(e pro'ince in )(ic( t(e c(ild resides. In t(e Cit o! Manila3 t(e petition s(all be !iled in t(e 2u'enile and Do+estic Relations Court.

0enue o! petitions !or judicial appro'al o! a 'oluntar recognition o! a +inor natural c(ild
. #1; of the province of petitioner2s residence ." -uvenile and 8omestic #elations ;ourt in the ;ity of (anila cf Arts )", )> and )@ =;
Art. )". 1he filiation of legitimate children is established by any of the following5 ( ) 1he record of birth appearing in the civil register or a final 'udgmentC or (") 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 by5 ( ) 1he open and continuous possession of the status of a legitimate childC or (") Any other means allowed by the #ules of ;ourt and special laws. ("4@a+ "44a+ "4)a) Art. )>. 1he 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. 1he action already commenced by the child shall survive notwithstanding the death of ether or both of the parties. ("43a) Art. )@. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. 1he action must be brought within the same period specified in Article )>+ e&cept when the action is based on the second paragraph of Article )"+ in which case the action may be brought during the lifetime of the alleged parent. ("3$a)

Sec. $. &ontents of petition. -(e petition !or judicial appro'al o! a 'oluntar recognition o! a +inor natural c(ild s(all contain t(e !ollo)ing allegations* "a% -(e jurisdictional !acts, "b% -(e na+es and residences o! t(e parents )(o ac1no)ledged t(e c(ild3 or o! eit(er o! t(e+3 and t(eir co+pulsor (eirs3 and t(e person or persons )it( )(o+ t(e c(ild li'es, "c% -(e !act t(at t(e recognition +ade b t(e parent or parents too1 place in a state+ent be!ore a court o! record or in an aut(entic )riting3 cop o! t(e state+ent or )riting being attac(ed to t(e petition. Sec. ;. ?rder for hearing. Fpon t(e !iling o! t(e petition3 t(e court3 b an order reciting t(e purpose o! t(e sa+e3 s(all !i6 t(e date and place !or t(e (earing t(ereo!3 )(ic( date s(all not be +ore t(an si6 "?% +ont(s a!ter t(e entr o! t(e order3 and s(all3 +oreo'er3 cause a cop o! t(e order to be ser'ed personall or b +ail upon t(e interested parties3
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and publis(ed once a )ee1 !or t(ree ";% consecuti'e )ee1s3 in a ne)spaper or ne)spapers o! general circulation in t(e pro'ince. Petition for 'udicial approval of voluntary recognition of natural children must be published. Sec. 5. ?pposition. An interested part +ust3 )it(in !i!teen "&=% da s !ro+ ser'ice3 or !ro+ t(e last date o! publication3 o! t(e order re!erred to in t(e ne6t preceding section3 !ile (is opposition to t(e petition3 stating t(e grounds or reasons t(ere!or. Sec. =. 3udgment. I!3 !ro+ t(e e'idence presented during t(e (earing3 t(e court is satis!ied t(at t(e recognition o! t(e +inor natural c(ild )as )illingl and 'oluntaril +ade b t(e parent or parents concerned3 and t(at t(e recognition is !or t(e best interest o! t(e c(ild3 it s(all render judg+ent granting judicial appro'al o! suc( recognition. Sec. ?. Service of judgment upon civil registrar. A cop o! t(e judg+ent rendered in accordance )it( t(e preceding section s(all be ser'ed upon t(e ci'il registrar )(ose dut it s(all be to enter t(e sa+e in t(e register.

O. Rule &B?* Constitution o! :a+il .o+e

cf Art. @> =;
Art. @>. 1he family home is deemed constituted on a house and lot from the time it is occupied as a family residence. =rom the time of its constitution and so long as any of its beneficiaries actually resides therein+ the family home continues to be such and is e&empt from e&ecution+ forced sale or attachment e&cept as hereinafter provided and to the e&tent of the value allowed by law. ("">a)

Sec. &. =ho may constitute. 666 (repealed by Art. @> of the =amily ;ode) Sec. $. &ontents of petition. 666 (repealed by Art. @> of the =amily ;ode) Sec. ;. 5otice and publication. 666 (repealed by Art. @> of the =amily ;ode) Sec. 5. ?bjection and date of hearing. 666 (repealed by Art. @> of the =amily ;ode) Sec. =. ?rder. 666 (repealed by Art. @> of the =amily ;ode) Sec. ?. 'egistration of order. 666 (repealed by Art. @> of the =amily ;ode)

L. Rule &B#* Absentees Stages o! absence

. provisional absence ." declaration of absence .> presumption of death

&. Pro'isional Absence

Sec. &. Appointment of representative. 9(en a person disappears !ro+ (is do+icile3 (is )(ereabouts being un1no)n3 and )it(out (a'ing le!t an agent to ad+inister (is propert 3 or t(e po)er con!erred upon t(e agent (as e6pired3 an interested part 3 relati'e or !riend3 +a petition t(e Court o! :irst Instance o! t(e place )(ere t(e absentee resided be!ore (is disappearance !or t(e appoint+ent o! a person to represent (i+ pro'isionall in all t(at +a be necessar . In t(e Cit o! Manila3 t(e petition s(all be !iled in t(e 2u'enile and Do+estic Relations Court.
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cf Arts. >3 ,>3" A;;

Art. >3 . :hen a person disappears from his domicile+ his whereabouts being un7nown+ and without leaving an agent to administer his property+ the 'udge+ at the instance of an interested party+ a relative+ or a friend+ may appoint a person to represent him in all that may be necessary. 1his same rule shall be observed when under similar circumstances the power conferred by the absentee has e&pired. ( 3 a) Art. >3". 1he appointment referred to in the preceding article having been made+ the 'udge shall ta7e the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers+ obligations and remuneration of his representative+ regulating them+ according to the circumstances+ by the rules concerning guardians. ( 3")

0enue o! petition !or appoint+ent o! representati'e

. #1; of province where absentee resided ." -uvenile and 8omestic #elations ;ourt in the ;ity of (anila :ho may petition for appointment of a representative ? any interested party+ relative or friend

Re7uisites !or appoint+ent o! representati'e

. person disappears from his domicile ." his whereabouts un7nown .> either .a without leaving an agent or .b power conferred upon the agent has e&pired

$. Declaration o! Absence
Sec. $. !eclaration of absenceE who may petition. A!ter t(e lapse o! t)o "$% ears !ro+ (is disappearance and )it(out an ne)s about t(e absentee or since t(e receipt o! t(e last ne)s3 or o! !i'e "=% ears in case t(e absentee (as le!t a person in c(arge o! t(e ad+inistration o! (is propert 3 t(e declaration o! (is absence and appoint+ent o! a trustee or ad+inistrator +a be applied !or b an o! t(e !ollo)ing* "a% -(e spouse present, "b% -(e (eirs instituted in a )ill3 )(o +a present an aut(entic cop o! t(e sa+e, "c% -(e relati'es )(o )ould succeed b t(e la) o! intestac , and "d% -(ose )(o (a'e o'er t(e propert o! t(e absentee so+e rig(t subordinated to t(e condition o! (is deat(. cf Arts. >3*,>3@ A;;
Art. >3*. 1wo years having elapsed without any news about the absentee or since the receipt of the last news+ and five years in case the absentee has left a person in charge of the administration of his property+ his absence may be declared. ( 3*) Art. >3@. 1he following may as7 for the declaration of absence5 ( ) 1he spouse presentC (") 1he heirs instituted in a will+ who may present an authentic copy of the sameC

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4 (>) 1he relatives who may succeed by the law of intestacyC (*) 1hose who may have over the property of the absentee some right subordinated to the condition of his death. ( 3@)

Re7uired period !or declaration absence

. If absentee left a person in charge ? @ years from disappearance .a disappearance or .b receipt of last news ." If absentee left no person in charge ? " years from

9(o +a as1 !or declaration o! absence

. present spouse ." heirs instituted in a will+ who may present an authentic copy of the sameC .> intestate heirs .* those who may have over the property of the absentee some right subordinated to the condition of his death Aote that declaration of absence does not authori6e the present spouse to remarry even if the period is the same. 1he present spouse must obtain a separate 'udicial declaration of presumptive death. (Art. * =;)
Art. * A marriage contracted by any person during subsistence of a previous marriage shall be null and void+ unless before the celebration of the subse<uent marriage+ the prior spouse had been absent for four consecutive years and the spouse present has a well,founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article >$ of the ;ivil ;ode+ an absence of only two years shall be sufficient. =or the purpose of contracting the subse<uent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this ;ode for the declaration of presumptive death of the absentee+ without pre'udice to the effect of reappearance of the absent spouse. (3>a)

;. Pro'isions co++on to appoint+ent o! a representati'e and declaration o! absence

Sec. ;. &ontents of petition. -(e petition !or t(e appoint+ent o! a representati'e3 or !or t(e declaration o! absence and t(e appoint+ent o! a trustee or an ad+inistrator3 +ust s(o) t(e !ollo)ing* "a% -(e jurisdictional !acts, "b% -(e na+es3 ages3 and residences o! t(e (eirs instituted in t(e )ill3 cop o! )(ic( s(all be presented3 and o! t(e relati'es )(o )ould succeed b t(e la) o! intestac , "c% -(e na+es and residences o! creditors and ot(ers )(o +a (a'e an interest o'er t(e propert o! t(e absentee, "d% -(e probable 'alue3 location and c(aracter o! t(e propert absentee. ad'erse

belonging to t(e

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Sec. 5. 8ime of hearingE notice and publication thereof. 9(en a petition !or t(e appoint+ent o! a representati'e3 or !or t(e declaration o! absence and t(e appoint+ent o! a trustee or ad+inistrator3 is !iled3 t(e court s(all !i6 a date and place !or t(e (earing t(ereo! )(ere all concerned +a appear to contest t(e petition. Copies o! t(e notice o! t(e ti+e and place !i6ed !or t(e (earing s(all be ser'ed upon t(e 1no)n (eirs3 legatees3 de'isees3 creditors and ot(er interested persons3 at least ten "&B% da s be!ore t(e da o! t(e (earing3 and s(all be publis(ed once a )ee1 !or t(ree ";% consecuti'e )ee1s prior to t(e ti+e designated !or t(e (earing3 in a ne)spaper o! general circulation in t(e pro'ince or cit )(ere t(e absentee resides3 as t(e court s(all dee+ best. Petition for appointment of a representative or for declaration of absence must be published. Sec. =. ?pposition. An one appearing to contest t(e petition s(all state in )riting (is grounds t(ere!or3 and ser'ed a cop t(ereo! on t(e petitioner and ot(er interested parties on or be!ore t(e date designated !or t(e (earing. Sec. ?. Proof at hearingE order. At t(e (earing3 co+pliance )it( t(e pro'isions o! section 5 o! t(is rule +ust !irst be s(o)n. Fpon satis!actor proo! o! t(e allegations in t(e petition3 t(e court s(all issue an order granting t(e sa+e and appointing t(e representati'e3 trustee or ad+inistrator !or t(e absentee. -(e judge s(all ta1e t(e necessar +easures to sa!eguard t(e rig(ts and interests o! t(e absentee and s(all speci! t(e po)ers3 obligations and re+uneration o! (is representati'e3 trustee or ad+inistrator3 regulating t(e+ b t(e rules concerning guardians. In case o! declaration o! absence3 t(e sa+e s(all not ta1e e!!ect until si6 "?% +ont(s a!ter its publication in a ne)spaper o! general circulation designated b t(e court and in t(e O!!icial Ga/ette. cf Arts. >34 A;;
Art. >34. 1he 'udicial declaration of absence shall not ta7e effect until si& months after its publication in a newspaper of general circulation. ( 34a)

Sec. #. =ho may be appointed. In t(e appoint+ent o! a representati'e3 t(e spouse present s(all be pre!erred )(en t(ere is no legal separation. I! t(e absentee le!t no spouse3 or i! t(e spouse present is a +inor or ot(er)ise inco+petent3 an co+petent person +a be appointed b t(e court. In case o! declaration o! absence3 t(e trustee or ad+inistrator o! t(e absentee<s propert s(all be appointed in accordance )it( t(e preceding paragrap(. cf Arts. >3> A;;
Art. >3>. 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+ any competent person may be appointed by the court. ( 3>a)

Sec. A. 8ermination of administration. -(e trustees(ip or ad+inistration o! t(e propert o! t(e absentee s(all cease upon order o! t(e court in an o! t(e !ollo)ing cases* "a% 9(en t(e absentee appears personall or b +eans o! an agent, "b% 9(en t(e deat( o! t(e absentee is pro'ed and (is testate or intestate (eirs appear,

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"c% 9(en a t(ird person appears3 s(o)ing b a proper docu+ent t(at (e (as ac7uired t(e absentee<s propert b purc(ase or ot(er title. In t(ese cases t(e trustee or ad+inistrator s(all cease in t(e per!or+ance o! (is o!!ice3 and t(e propert s(all be placed at t(e disposal o! t(ose )(o +a (a'e a rig(t t(ereto. cf Arts. >3$ A;;
Art. >3$. 1he administration shall cease in any of the following cases5 ( ) :hen the absentee appears personally or by means of an agentC (") :hen the death of the absentee is proved and his testate or intestate heirs appearC (>) :hen a third person appears+ showing by a proper document that he has ac<uired the absenteePs property by purchase or other title. In these cases the administrator shall cease in the performance of his office+ and the property shall be at the disposal of those who may have a right thereto. ( $9)

9(en ad+ininstration ter+inates

. absentee appears personally or by means of an agentC ." death of the absentee is proved and his testate or intestate heirs appearC .> a third person appears+ showing by a proper document that he has ac<uired the absenteePs property by purchase or other title.

5. Presu+ption o! Deat( "Arts. ;@B8;@& NCC3 Art. 5& :C%

Art. ;@B. A!ter an absence o! se'en ears3 it being un1no)n )(et(er or not t(e absentee still li'es3 (e s(all be presu+ed dead !or all purposes3 e6cept !or t(ose o! succession. -(e absentee s(all not be presu+ed dead !or t(e purpose o! opening (is succession till a!ter an absence o! ten ears. I! (e disappeared a!ter t(e age o! se'ent 8!i'e ears3 an absence o! !i'e ears s(all be su!!icient in order t(at (is succession +a be opened. "n% Art. ;@&. -(e !ollo)ing s(all be presu+ed dead !or all purposes3 including t(e di'ision o! t(e estate a+ong t(e (eirs* "&% A person on board a 'essel lost during a sea 'o age3 or an aeroplane )(ic( is +issing3 )(o (as not been (eard o! !or !our ears since t(e loss o! t(e 'essel or aeroplane, "$% A person in t(e ar+ed !orces )(o (as ta1en part in )ar3 and (as been +issing !or !our ears, ";% A person )(o (as been in danger o! deat( under ot(er circu+stances and (is e6istence (as not been 1no)n !or !our ears. "n% Art. 5&. A +arriage contracted b an person during subsistence o! a pre'ious +arriage s(all be null and 'oid3 unless be!ore t(e celebration o! t(e subse7uent +arriage3 t(e prior spouse (ad been absent !or !our consecuti'e ears and t(e spouse present (as a )ell8!ounded belie! t(at t(e absent spouse )as alread dead. In case o! disappearance )(ere t(ere is danger o! deat( under t(e circu+stances set !ort( in t(e pro'isions o! Article ;@& o! t(e Ci'il Code3 an absence o! onl t)o ears s(all be su!!icient. :or t(e purpose o! contracting t(e subse7uent +arriage under t(e preceding paragrap( t(e spouse present +ust institute a su++ar proceeding as pro'ided in t(is
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Code !or t(e declaration o! presu+pti'e deat( o! t(e absentee3 )it(out prejudice to t(e e!!ect o! reappearance o! t(e absent spouse. "A;a%

Periods !or presu+ption o! deat(

. opening of succession a. Erdinary absence ) disappears at age )4 and up ? 9 years ) disappears at age )@ and below ? @ years .b Absence under dangerous circumstances ? * years ." =or remarriage .a Erdinary absence , * years .b Absence under dangerous circumstances ? " years .> all other purposes .a ordinary absence ? ) years .b Absence under dangerous circumstances ? * years Aote that it is only for the purpose of remarriage (Art. * =;) and succession ( 6ones v. -ortiguela+ 4* Phil )$) that a 'udicial declaration of presumptive death is necessary. =or all other purposes+ the presumption attaches without necessity of a court declaration.

Instances o! absence "E6traordinar absence%

. on board a lost or missing vessel or aeroplane

under

dangerous

circu+stances

." missing from the armed forces who has ta7en part in war .> in danger of death under other circumstances Art. ;@$. I! t(e absentee appears3 or )it(out appearing (is e6istence is pro'ed3 (e s(all reco'er (is propert in t(e condition in )(ic( it +a be !ound3 and t(e price o! an propert t(at +a (a'e been alienated or t(e propert ac7uired t(ere)it(, but (e cannot clai+ eit(er !ruits or rents. "&@5%

I! t(e absentee reappears a!ter (e (as been

. declared absent ? may recover property from administrator in the condition in which it may be foundC recover property disposed with court approval or its price+ but he can not recover fruits or rents or interest or damages

." presumed dead ? may recover properties already disposed+ sub'ect to the e&traordinary ac<uisitive prescriptionC he can not recover fruits or rents or interest or damages

M.Rule &B@* Appeals in Special Proceedings

Sec. &. ?rders or judgments from which appeals may be ta.en. An interested person +a appeal in special proceedings !ro+ an order or judg+ent rendered b a Court o! :irst Instance or a 2u'enile and Do+estic Relations Court3 )(ere suc( order or judg+ent*
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"9

"a% Allo)s or disallo)s a )ill, "b% Deter+ines )(o are t(e la)!ul (eirs o! a deceased person3 or t(e distributi'e s(are o! t(e estate to )(ic( suc( person is entitled, "c% Allo)s or disallo)s3 in )(ole or in part3 an clai+ against t(e estate o! a deceased person3 or an clai+ presented on be(al! o! t(e estate in o!!set to a clai+ against it, "d% Settles t(e account o! an e6ecutor3 ad+inistrator3 trustee or guardian, "e% Constitutes3 in proceedings relating to t(e settle+ent o! t(e estate o! a deceased person3 or t(e ad+inistration o! a trustee or guardian3 a !inal deter+ination in t(e lo)er court o! t(e rig(ts o! t(e part appealing3 e6cept t(at no appeal s(all be allo)ed !ro+ t(e appoint+ent o! a special ad+inistrator, and "!% Is t(e !inal order or judg+ent rendered in t(e case3 and a!!ects t(e substantial rig(ts o! t(e person appealing3 unless it be an order granting or den ing a +otion !or a ne) trial or !or reconsideration.

Appealable special proceedings orders

. Allows or disallows a willC ." 8etermines who are the lawful heirs of a deceased person+ or the distributive share of the estate to which such person is entitledC .> 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 itC .* Settles the account of an e&ecutor+ administrator+ trustee or guardianC .@ ;onstitutes+ 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+ e&cept that no appeal shall be allowed from the appointment of a special administratorC and .4 final order or 'udgment 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. Sec. $. Advance distribution in special proceedings. Not)it(standing a pending contro'ers or appeal in proceedings to settle t(e estate o! a decedent3 t(e court +a 3 in its discretion and upon suc( ter+s as it +a dee+ proper and just3 per+it t(at suc( part o! t(e estate as +a not be a!!ected b t(e contro'ers or appeal be distributed a+ong t(e (eirs or legatees3 upon co+pliance )it( t(e conditions set !ort( in Rule @B o! t(ese rules.

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