Special Proceedings

GENERAL PROVISIONS
Rule 72 Subject Matter and Applicability of General Rules
In view of the interpretation given to the words "action" and "special
proceeding" by the Legislature itself, we are driven to the conclusion that
there is a distinction between an "action" and a "special proceeding," and
that when the Legislature used the word "action" it did not mean "special
proceeding." There is a marked distinction between an "action" and a
"special proceeding" (Hagans v. Wislizemus, 42 Phil. 880)
o An action is a formal demand of one's legal rights in a court of
justice in the manner prescribed by the court or by the law. It is the
method of applying legal remedies according to definite established
rules.
o The term "special proceeding" may be defined as an application or
proceeding to establish the status or right of a party, or a particular
fact. Usually, in special proceedings, no formal pleadings are
required, unless the statute expressly so provides. The remedy in
special proceedings is generally granted upon an application or
motion. Illustrations of special proceedings, in contradistinction to
actions, may be given: Proceedings for the appointment of an
administrator, guardians, tutors; contest of wills; to perpetuate
testimony; to change the name of persons; application for
admission to the bar, etc., etc. Coca v. Borromeo, 81 SCRA 278
(1978)
Actions include those proceedings which are instituted and prosecuted
according to the ordinary rules and provisions relating to actions at law or
suits in equity. Special proceedings include those proceedings which are
not ordinary in this sense, but is instituted and prosecuted according to
some special mode as in the case of proceedings commenced without
summons and prosecuted without regular pleadings, which are
characteristics of ordinary actions. (Natcher v. CA, 366 SCRA 385)
o Whether a matter should be resolved by the RTC in the exercise of
its general jurisdiction or its limited probate jurisdiction is not a
jurisdictional issue but a mere procedural one which may be
waived. There is no waiver in the case at bar inasmuch as the six
children of the decedent even assailed the authority of the trial
court;
o Although generally, a probate court may not decide a question of
title or ownership, yet if the interested parties are all heirs, or the
question is one of collation or advancement, or the parties consent
to the assumption of jurisdiction by the probate court and the rights
of third parties are not impaired , then the probate court is
competent to decide the question of ownership.

 A petition for liquidation of an insolvent corporation should be classified a

special proceeding and not an ordinary action. Such petition does not
seek the enforcement or protection of a right nor the prevention or redress
of a wrong against a party. It does not pray for affirmative relief for injury
arising from a partys wrongful act or omission nor state a cause of action
that can be enforced against any person. (Pacific Banking Corporation
Employees Organization v. CA 242 SCRA 492)
o What it seeks is merely a declaration by the trial court of the
corporations insolvency so that its creditors may be able to file their
claims in the settlement of the corporations debts and obligations.
Put in another way, the petition only seeks a declaration of the
corporations state of insolvency and the concomitant right of
creditors and the order of payment of their claims in the disposition
of the corporations assets.
o Rather, a liquidation proceeding resembles the proceeding for the
settlement of estate of deceased persons under Rules 73 to 91 of
the Rules of Court. The two have a common purpose: the
determination of all the assets and the payment of all the debts and
liabilities of the insolvent corporation or the estate. The Liquidator
and the administrator or executor are both charged with the assets
for the benefit of the claimants. In both instances, the liability of the
corporation and the estate is not disputed. The courts concern is
with the declaration of creditors and their rights and the
determination of their order of payment. Furthermore, as in the
settlement of estates, multiple appeals are allowed in proceedings
for liquidation of an insolvent corporation.
o A liquidation proceeding is commenced by the filing of a single
petition by the Solicitor General with a court of competent
jurisdiction. All claims against the insolvent are required to be filed
with the liquidation court. Although the claims are litigated in the
same proceeding, the treatment is individual. Each claim is heard
separately. And the Order issued relative to a particular claim
applies only to said claim, leaving the other claims unaffected, as
each claim is considered separate and distinct from the others
SETTLEMENT OF ESTATE OF DECEASED PERSONS
Rule 73- Venue and Process
That a special proceeding for the settlement of an estate is filed and
intended to settle the entire estate of the deceased is obvious and
elementary. It would be absurd for the heirs to intentionally excluded or
leave a parcel of land or a portion thereof undistributed or undivided
because the proceeding is precisely designed to end the community of
interests in properties held by co-partners pro indiviso without designation
or segregation of shares. (Vda. De Reyes v. CA, 169 SCRA 524)
o The Judiciary Act concededly confers original jurisdiction upon all

Courts of First Instance over all matters of probate, both of testate

and intestate estates. On the other hand, Rule 73, section of the
Rules of Court lays down the rule of venue, as the very caption of
the Rule indicates, and in order to prevent conflict among the
different courts which otherwise may properly assume; jurisdiction
from doing so, the Rule specifies that the court first taking
cognizance of the settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all other courts. (Cuenco v.
CA, 53 SCRA 360)
It is equally conceded that the residence of the deceased or the
location of his estate is not an element of jurisdiction over the
subject matter but merely of venue. procedure is one thing and
jurisdiction over the subject matter is another;
The law of jurisdiction Act No. 136,11 Section 56, No. 5confers
upon Courts of First Instance jurisdiction over all probate cases
independently of the place of residence of the deceased. Since,
however, there are many courts of First Instance in the Philippines,
the Law of Procedure, Act No. 190, section 600, fixes the venue or
the place where each case shall be brought. Thus, the place of
residence of the deceased is not an element of jurisdiction over the
subjectmatter but merely of venue. And it is upon this ground that in
the new Rules of Court the province where the estate of a
deceased person shall be settled is properly called venue;
A fair reading of the Rulesince it deals with venue and comity
between courts of equal and coordinate jurisdiction indicates that
the court with whom the petition is first filed, must also first take
cognizance of the settlement of the estate in order to exercise
jurisdiction over it to the exclusion of all other courts;
Conversely, such court, may upon learning that a petition for
probate of the decedents last will has been presented in another
court where the decedent obviously had his conjugal domicile and
resided with his surviving widow and their minor children, and that
the allegation of the intestate petition before it stating that the
decedent died intestate may be actually false, may decline to take
cognizance of the petition and hold the petition before it in
abeyance, and instead defer to the second court which has before
it the petition for probate of the decedents alleged last will.
The relatively recent case of Uriarte vs. Court of First Instance of
Negros Occidental upheld the doctrine of precedence of probate
proceedings over intestate proceedings. Thus it has been held
repeatedly that, if in the course of intestate proceedings pending
before a court of first instance it is found that the decedent had left
a last will, proceedings for the probate of the latter should replace
the intestate proceedings even if at that state an administrator had
already been appointed, the latter being required to render final
account and turn over the estate in his possession to the executor

subsequently appointed.
The fact of death of the intestate and his last residence within the country
are foundation facts upon which all subsequent proceedings in the
administration of the estate rest. The aforequoted Section 1, Rule 73
(formerly Rule 75, Section 1), specifically the clause so far as it depends
on the place of residence of the decedent, or of the location of the estate,
is in reality a matter of venue, as the caption of the Rule indicates:
Settlement of Estate of Deceased Persons, Venue and Processes.
(Garcia Fule v. CA, 74 SCRA 189)
o It could not have been intended to define the jurisdiction over
the subject matter, because such legal provision is contained
in a law of procedure dealing merely with procedural matters.
Procedure is one thing; jurisdiction over the subject matter is
another. The power or authority of the court over the subject matter
existed and was fixed before procedure in a given cause began.
Power or authority is not altered or changed by procedure, which
simply directs the manner in which the power or authority shall be
fully and justly exercised. There are cases though that if the
power is not exercised conformably with the provisions of the
procedural law, purely, the court attempting to exercise it
loses the power to exercise it legally. However, this does not
amount to a loss of jurisdiction over the subject matter. Rather,
it means that the court may thereby lose jurisdiction over the
person or that the judgment may thereby be rendered defective for
lack of something essential to sustain it. It is just a matter of
method, of convenience to the parties.
o The place of residence of the deceased in settlement of
estates, probate of will, and issuance of letters of
administration does not constitute an element of jurisdiction
over the subject matter. It is merely constitutive of venue. And it
is upon this reason that the Revised Rules of Court properly
considers the province where the estate of a deceased person shall
be settled as venue.
o We lay down the doctrinal rule that the term resides connotes
ex vi termini actual residence as distinguished from legal
residence or domicile. This term resides, like the terms
residing and residence, is elastic and should be interpreted in
the light of the object or purpose of the statute or rule in which it is
employed. Even where the statute uses the word domicile still it is
construed as meaning residence and not domicile in the technical
sense. In other words, resides should be viewed or
understood in its popular sense, meaning, the personal, actual
or physical habitation of a person, actual residence or place of
abode. It signifies physical presence in a place and actual stay
thereat. In this popular sense, the term means merely residence,
that is, personal residence, not legal residence or domicile.

Residence simply requires bodily presence as an inhabitant in a

given place, while domicile requires bodily presence in that place
and also an intention to make it ones domicile. No particular
length of time of residence is required though; however, the
residence must be more than temporary.
It is well-settled rule that a probate court or one in charge of proceedings
whether testate or intestate cannot adjudicate or determine title to
properties claimed to be a part of the estate and which are equally claimed
to belong to outside parties. All that the said court could do as regards
said properties is to determine whether they should or should not be
included in the inventory or list of properties to be administered by the
administrator. If there is no dispute, well and good; but if there is, then the
parties, the administrator, and the opposing parties have to resort to an
ordinary action for a final determination of the conflicting claims of title
because the probate court cannot do so. (Reyes v. Mosqueda, 187 SCRA
661)
o For the purpose of determining whether a certain property should or
should not be included in the inventory, the probate court may pass
upon the title thereto but such determination is not conclusive and
is subject to the final decision in a separate action regarding
ownership which may be instituted by the parties.
The probate courts limited jurisdiction and the principle that
questions of title or ownership, which result to inclusion in or
exclusion from the inventory of the property, can only be settled in a
separate action. Hence, even if the probate court presumed all the way
that the properties sold by Drepin to Moslares were part of Drepins estate,
that would not prevent nor defeat Moslares remedy in a separate
suit. (Pio Barretto Realty Development, Inc. v. CA)
o Any ruling by the probate court to include those properties is only
provisional in character and is without prejudice to a judgment
in a separate action on the issue of title or ownership.
As a general rule, the question as to title to property should not be
passed upon in the estate or intestate proceeding. That question
should be ventilated in a separate action. That general rule has
qualifications or exceptions justified by expediency and
convenience. Thus, the probate court may provisionally pass upon in an
intestate or testate proceeding the question of inclusion in, or exclusion
from, the inventory of a piece of property without prejudice to its final
determination in a separate action. (Coca v. Borromeo, 81 SCRA 278)
Qualification provisional determination. Exception the 3, final
determination.
o Although generally, a probate court may not decide a question
of title or ownership, yet if (1) the interested parties are all
heirs or (2) the question is one of collation or advancement, or
(3) the parties consent to the assumption of jurisdiction by the
probate court and the rights of 'third parties are not impaired,

then the probate court is competent to decide the question of

ownership.
Probate courts, or those in charge of proceedings whether testate or
intestate, cannot adjudicate or determine title to properties claimed to
be part of the estate and which are claimed to belong to outside
parties. Claims for title to, or right of possession of, personal or real
property, made by the heirs themselves, by title adverse to that of the
deceased, or made by third persons, cannot be entertained by the
(probate) court. (Cortes v. CA, 340 SCRA 715)
o By way of exception when the parties are all heirs of the
decedent, it is optional upon them to submit to the probate court the
question of title to property.
o When the controversy is whether the property in issue belongs to
the conjugal partnership or exclusively to the decedent, it is within
the jurisdiction of the probate court, which necessarily has to
liquidate the conjugal partnership in order to determine the
estate of the decedent. The case at bar falls squarely under Rule
73, Section 2 of the Revised Rules of Court.
Rule 74- Summary Settlement of Estates
As a general rule that when a person dies living property in the Philippine
Islands, his property should be judicially administered and the competent
court should appoint a qualified administrator, in the order established in
the section, in case the deceased left no will, or in case he had left one
should he fail to name an executor therein. This rule, however, is subject
to the exceptions established by sections 596 and 597 of the Code of Civil
Procedure, as finally amended. (Utulo v. Pasion Vda. De Garcia, 66 Phil.
303)
o According to the first, when all the heirs are of lawful age and
there are no debts due from the estate, they may agree in
writing to partition the property without instituting the judicial
administration or applying for the appointment of an
administrator;
o According to the second, if the property left does not exceed six
thousand pesos, the heirs may apply to the competent court,
after the required publications, to proceed with the summary
partition and, after paying all the known obligations, to
partition all the property constituting the inheritance among
themselves pursuant to law, without instituting the judicial
administration and the appointment of an administrator;
o When there are no debts existing against the estate, there is
certainly no occasion for the intervention of an administrator
in the settlement and partition of the estate among the heirs.
When the heirs are all of lawful age and there are no debts,
there is no reason why the estate should be burdened with the

costs and expenses of an administrator. The property belonging

absolutely to the heirs, in the absence of existing debts against the
estate, the administrator has no right to intervene in any way
whatever in the division of the estate among the heirs. They are
co-owners of an undivided estate and the law offers them a
remedy for the division of the same among themselves.
The general rule is that when a person dies leaving property, the
same should be judicially administered and the competent court
should appoint a qualified administrator, in the order established in
Section 6, Rule 78, in case the deceased left no will, or in case he had left
one, should he fail to name an executor therein. An exception to this rule
is established in Section 1 of Rule 74. Under this exception, when all
the heirs are of lawful age and there are no debts due from the
estate, they may agree in writing to partition the property without
instituting the judicial administration or applying for the appointment
of an administrator. (Pereira v. CA, 174 SCRA 154)
o Section 1, Rule 74 of the Revised Rules of Court, however, does
not preclude the heirs from instituting administration proceedings,
even if the estate has no debts or obligations, if they do not desire
to resort for good reasons to an ordinary action for partition .
While Section 1 allows the heirs to divide the estate among
themselves as they may see fit, or to resort to an ordinary action for
partition, the said provision does not compel them to do so if they
have good reasons to take a different course of action. It should
be noted that recourse to an administration proceeding even if
the estate has no debts is sanctioned only if the heirs have
good reasons for not resorting to an action for partition. Where
partition is possible, either in or out of court, the estate should not
be burdened with an administration proceeding without good and
compelling reasons.
o Bad Reasons Dispute as to corpus of estate; multiplicity of suits;
heirs not on good terms.
Rule 75- Production of Will; Allowance of Will Necessary
Probate of Will is mandatory.
o The law enjoins the probate of the Will and public policy requires it,
because unless the Will is probated and notice thereof given to the
whole world, the right of a person to dispose of his property by Will
may be rendered nugatory. (Maninang v. CA)
Probate does not look into intrinsic validity
o As a general rule, courts authority in probate proceedings are
limited only to passing upon the extrinsic validity of the will sought
to be probated, the due execution thereof, the testators
testamentary capacity and the compliance with the requisites

or solemnities prescribed by law. Said court at this stage of the

proceedings is not called upon to rile on the intrinsic validity or
efficacy of the provisions of the will. (Acain v. IAC)
General Rule for Probate: Extrinsic Validity Only
o Substantial compliance is sufficient
The court has held in a number of occasions that in
determining the extrinsic validity of the will, substantial
compliance is acceptable where the purpose of the law has
been satisfied, the reason being that the solemnities
surrounding the execution of wills are intended to protect the
testator from all kinds of fraud and trickery but never
intended to be so rigid and inflexible as to destroy the
testamentary privilege. (Icasiano v. Icasiano, Abangan v.
Abangan, Rey v. Cartagena, etc.)
o Formal imperfections to be brushed aside
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore, the laws on the subject
should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will.
So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and
frustrative of the testators will must be disregarded.
(Abangan v. Abangan)
EXCEPTION to the General Rule: Principle of Practical Consideration
o If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for
naught that appears in the record, in the evend of probate or if the
court rejects the will, probability exists that the case will come up
once again before us on the same issue of intrinsic validity or nullity
of the will. Result: waste of time, effort, expense, plus added
anxiety. These are practical considerations that induce us to a
belief that we might as well meet head-on the issue of validity of the
provisions of the will in question. After all there exists a justifiable
controversy crying for solution. (Nuguid v. Nuguid)
o This exception is not applicable where meat of controversy is not
intrinsic validity. The Supreme Court has clarified that the passing
on the issue of intrinsic validity is the exception rather than the
general rule, as can be seen in Maninang wherein the Court did not
entertain looking into the provisions of the will but stating that it will

only pass on the extrinsic validity of such.

Difference between preterition and disinheritance in effects
o Preterition under Article 854 of the New Civil Code shall annul the
institution of heir. This annulment is in toto, unless in the will there
are, in addition, testamentary dispositions in the form of devises or
legacies. In ineffective disinheritance under Article 918 of the same
Code, such disinheritance shall also annul the institution of heirs,
but only insofar as it may prejudice the person disinherited, which
last phrase was omitted in the case of preterition. Better stated yet,
in disinheritance the nullity is limited to that portion of the estate of
which the disinherited heirs have been illegally deprived. (Justice
Oscar Herrera, CA [ret.] 2005)
It would therefore seem that the probate court may only disregard passing
on the extrinsic invalidity of the Will where the intrinsic invalidity is
apparent on the face of the Will. (Herrera, 2005)
Decree of probate is conclusive as to its due execution.
Rule 76- Allowance or Disallowance of Will
In order that a person may be allowed to intervene in a probate
proceeding he must have an interest in the estate, or in the will, or in the
property to be affected by it either as executor or as a claimant of the
estate and an interested party is one who would be benefited by the estate
such as an heir or one who has a claim against the estate like a creditor.
(Sumilang v. Ramagosa)
The Court ruled that it is not necessary that the original of the will be
attached to the petition. (Santos v. Castillo and Salazar v. CFI Laguna)
Three facts should be proved in order that a lost or destroyed will may be
allowed.
o The will has been duly executed by the testator
o The will was in existence when the testator died ORit has been
fraudulently or accidentally destroyed in the lifetime of the testator
without his knowledge.
o The provisions of the will are clearly established by at least two
credible witnesses.
Before secondary evidence may be admitted, the loss of the will should be
proved. (Lim Billian v. Suntay)
Separate wills may be probated jointly
o In Vda. De Perez v. Tolete, the wills of the Cunanan couple (their
family perished in a fire), were probated separately in New York
where they were making a living, but were probated jointly by the
RTC Bulacan. This is in accordance with Sec. 6, Rule 1 of the RoC
which provides for a liberal construction of the Rules to promote

their object.
o Also, the Court said that Since the two wills contain essentially the
same provisions and pertain to property in which all probability are
conjugal in nature. Practical considerations dictate their joint
probate.
o A literal application of the Rules should be avoided if they would
only result in the delay in the administration of justice. (Acain v.
IAC)
As to the date, the general rule and accepted practice is usually that the
month, day, and year is indicated. The Supreme Court decided however in
Roxas v. De Jesus, Jnr. that a holographic will which contained a date
FEB./61 was in valid compliance. The Court also pointed out that the
specific provision in the old Civil Code which required the month, date,
year, was omitted in the new code which merely stated that the date is
necessary.
Rule 77- Allowance of Will Proved Outside of the Philippines and
Administration of Estate Thereunder
The evidence necessary for the reprobate or allowance of wills which have
been probated outside of the Philippines are as follows:
o The due execution of the will in accordance with the foreign laws;
o The testator has his domicile in the foreign country and not in the
Philippines;
o The will has been admitted to probate in such country;
o The fact that the foreign tribunal is a probate court; and
o The laws of a foreign country on procedure and allowance of wills.
(Suntay v. Suntay)
Article 816 of the Civil Code provides:
o The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the
place in which he resides, or according to the formalities observed
in his country, or in conformity with those which this Code
prescribes.
Rule 78- Letters Testamentary And of Administration, When and to Whom
Issued
Suffice it to state, temporary absence in the state does not disqualify one
to be an administrator of the estate. Temporary residence outside of the
state, maintained for the benefit of the health of the executors family, is
not such a removal from the state as to necessitate his removal as
executor. It seems quite clear that a temporary absence from the state on
account of ill health, or on account of business, or for purposes of travel
pleasure, would not necessarily establish the fact that an executor has

removed from the estate, within the intent of the statute. (Gonzales v.
Aguinaldo)
For Section 1 of this Rule, the Court cannot add new causes of
Disqualification.
Mere failure to apply for letters of administration does not remove
preference. (Herrera, 2005 citing 1 ALR 1247)
For the benefit of the estate and those interested therein, more than one
administrator may be appointed this is legally permissible and sanctioned
in practice. (Matute v. CA)
Court may reject order of preference
o Administration may be granted to such other person as the court
may appoint in case the persons who have the preferential right to
be appointed are not competent or are unwilling to serve. (Villamor
v. CA)

Rule 79- Opposing Issuance of Letters Testamentary, Petition and Contest

for Letters of Administration
Jurisdictional Facts
o Death of testator
o Residence at the time of 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.
Interested party is one who would be benefitted by the estate, such as an
heir, or one who has a claim against the estate, such as a creditor; this
interest must be material and direct, not merely indirect or contingent.
(Trilliana v. Crisostomo)
In Pilipinas Shell v. Dumlao, the Court discusses that being an interested
person is not a jurisdictional requirement.
In Saguinsin v. Lindayag, the dismissal of a petition for letters of
administration was affirmed because the petitioner is not an heir of her
deceased sister and, therefore, has no material and direct interest in her
estate.
Lack of interest barred by estoppel; omnibus motion rule
o Where private respondents did not file a motion to dismiss the
petition filed on the ground of lack of capacity to sue; but instead
filed an opposition which, undfortunately, did not ask for the
dismissal of the petition but merely opposed the issuance of letters
of administration in favor of Gonzalez because, among other
reasons, he is a stranger to the estate and the opposition also
proposed that Bonifacio Canonoy, one of the children of the
deceased Regino Canonoy, be appointed administrator of the
latters intestate estate. It was held that the failure to move for a
dismissal amounted to the waiver of the above-mentioned ground.
Defects in the petition may be cured by failure to make timely objection.
(Herrera 2005)

Rule 80- Special Administrator

In one case, the issue is whether or not a probate court may appoint a
special administrator and issue a writ of possession of alleged properties
of a decedent for the preservation of the estate in a petition for settlement
of the intestate estate of the said deceased person even before the
probate court causes notice to be served upon all interested parties
pursuant to Sec 3, Rule 79 of RoC
o The Supreme Court held the notice through publication of the
petition is a jurisdictional requirement even in the appointment of a
special administrator. A special administrator has been defined as
the representative of decedent appointed by the probate court to
care for and preserve his estate until an executor or general
administrator is appointed. The petitioner as creditor of the estate
has a similar interest in the preservation of the estate as the private
respondent who happens to be the widow of the deceased. Hence
the necessity of notice as mandated by the Rules of Court. (De
Guzman v. Angeles)
The executrix choice of Special Administrator is entitled to the highest
consideration. (Corona v. CA)
The appointment of a special administrator is justified only when there is
delay in granting letters testamentary or of administration occasioned by
an appeal from the allowance or disallowance of a will or some other
cause. (Reynoso v. Santiago)
Appointment of special administrator lies entirely in the sound discretion of
the court. (De Gala v. Gonzales)
The special administrators are reminded that while they may have
respective interests to protect, they are officers of the Court subject to the
supervision and control of the Probate Court. (Corona v. CA and Vda. De
Dayrit v. Ramolete)
Rule 81 Bonds of Executors and Administrators
Rule 82 Revocation of Administration, Death, Resignation, and Removal
of Executors and Administrators
Rule 83 Inventory and Appraisal; Provisions for Support of Family
Rule 84 General Powers and Duties of Executors and Administrators
Rule 85 Accountability and Compensation of Executors and
Administrators
Rule 86 Claims Against Estate
The proper remedy in case where a decision in favor of a claimant in a
civil case against the other was rendered but before payment, the debtor
died, would not be to execute enforcement of payment. Rather, the
ordinary procedure by which to settle claims of indebtedness against the

estate of the deceased person, is for the claimant to present a claim

before the probate court so that said court may order the administrator to
pay the amount thereof. (Echaus v. Blanco)
o A judgment against the executor or administrator shall be that he
pay, in due course of administrator, the amount ascertained to be
due and it shall not create a lien upon the property of the estate, or
give the judgment creditor any priority in payment
A creditor cannot sue the surviving spouse of a decedent in an ordinary
proceeding for the collection of a sum of money chargeable against the
conjugal partnership and that the proper remedy is for him to file a claim in
the settlement of the estate of the decedent. (Alipio v. CA)
o After the death of either of the spouses, no complaint for the
collection of indebtedness chargeable against the conjugal
partnership can be brought against the surviving spouse. Instead
the claim must be made in the proceedings for the liquidation and
settlement of the conjugal property. The reason for this is that upon
the death of one spouse, the powers of administration of the
surviving spouse ceases and is passed to the administrator
appointed by the court having jurisdiction over the settlement of the
estate proceedings. The surviving spouse is not even a de facto
administrator such that conveyances made by him of any property
belonging to the partnership prior to the liquidation of the mass of
conjugal partnership property is void.
o The conjugal partnership terminates upon the death of either
spouse. Where a complaint is brought against the surviving spouse
for the recovery of an indebtedness chargeable against said
conjugal partnership, any judgment obtained thereby is void. The
proper action should be in the form of a claim to be filed in the
testate or intestate proceedings of the deceased spouse.
o In many cases, even after the death of one of the spouses, there is
no liquidation of the conjugal partnership. This does not mean
however, that the conjugal partnership continues.
The correct procedure for the collection of attorneys fees of counsel in
probate proceedings, is for the counsel to request the administrator to
make payment, and should he fail to pay, to file an action against him
in his personal capacity and not as an administrator. (Aldamiz v.
Luna)
o The attorney also may, instead of bringing such an action, file a
petition in the testate or intestate proceeding asking that the
court, after notice to all persons interested, allow his claim and
direct the administrator to pay it as an expense of
administration.
o In one case, the counsel filed a petition to have his professional
fees fixed without notice to all interested parties, which the court
granted. It was held that the decision was void since no written
petition for the payment of attorneys fees has ever been filed by

the respondent attorney and the interested parties had not been
previously notified thereof, nor of the hearing held by the court
With regard to mortgage debts due from estate, Section 7 of Rule 86
provides that a creditor holding a claim against the deceased secured by
the mortgage or other collateral security, may abandon the security and
prosecute his claim in the manner provided in this rule, and share in the
general distribution of the assets of the estate; or he may foreclose his
mortgage or realize upon his security, by action in court, making the
executor or administrator a party defendant, and if there is a judgment for
a deficiency, after the sale of the mortgaged premises, or the property
pledged, in the foreclosure or other proceeding to realize upon the
security, he may claim his deficiency judgment in the manner provided in
the preceding section; or he may rely upon his mortgage or other security
alone, and foreclose the same at any time within the period of the statute
of limitations, and in that event he shall not be admitted as a creditor and
shall receive no share in the distribution of the other assets of the estate;
but nothing herein contained shall prohibit the executor or administrator
from redeeming the property mortgaged or pledged, by paying the debt for
which it is held as security, under the direction of the court, if the court
shall adjudge it to be for the best interest of the estate that such
redemption shall be made.
It is clear from the text of Section 7, Rule 86, that once the deed of real
estate mortgage is recorded in the proper Registry of Deeds, together with
the corresponding court order authorizing the administrator to mortgage
the property, said deed shall be valid as if it has been executed by the
deceased himself. (PNB v. CA)
o Case law holds that this rule grants to the mortgagee three
distinct, independent and mutually exclusive remedies that can
be alternatively pursued by the mortgage creditor for the
satisfaction of his credit in case the mortgagor dies. He may choose
to:
waive the mortgage and claim the entire debt from the
estate of the mortgagor as an ordinary claim
foreclose the mortgage judicially and prove any deficiency
as an ordinary claim
rely on the mortgage exclusively, foreclosing the same
at any time before it is barred by prescription without right to
file a claim for any deficiency
o The plain result of adopting the last mode of foreclosure is that
the creditor waives his right to recover any deficiency from the
estate.
o Following the ruling in Perez v. PNB that the third mode includes
extrajudicial foreclosure sales, the result of extrajudicial
foreclosure is that the creditor waives any further deficiency claim.