Specpro Reviewer Cha

INTRODUCTI ON BASIS AND COMPONENTS OF REMEDIAL LAW Article VIII, Section 13, Constitution The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor. The same requirements shall be observed by all lower collegiate courts. Civil Procedure (Section 3a, ROC) Ordinary Civil Action: one by which a party sues another for ...the enforcement or protection of a right, ...or the prevention or redress of a wrong Special Civil Action: similar to an ordinary civil action but subject to specific rules prescribed for it Special Proceedings -a remedy by which a party seeks to establish ...a status …a right …or a particular fact Criminal procedure -criminal Action: one by which the State …prosecutes a person …for an act or omission punishable by law Evidence R128.1 Evidence is the means Sanctioned by these rules Of ascertaining in a judicial proceedings The truth In relation to a matter of fact Importance of Procedural Rules REPUBLIC V. KENRICH DEV'T CORPORATION 498 SCRA 220 Facts: -Kenrick Development Corp built a perimeter wall which encroached upon some parcels of land occupied by ATO based on TCTs derived from TCT No. 17508 registered in the name of one Alfonso Concepcion. When ATO verified the TCTs with the Land Registration Authority (LRA), it was found that there were no record of TCT no. 17508 and its ascendant title. Land was also covered by Villamor Air Base. -so OSG, on behalf of LRA, filed a COMPLAINT FOR REVOCATION, ANNULMENT AND CANCELLATION OF CERTIFICATES OF TITLE in behalf of RP vs. Kenrick and Alfonso Concepcion -Alfonso Concepcion cannot be found so alias summon by publication done -Kenrick allegedly filed an answer signed by Atty. Onofre Garlitos, Jr as their counsel (but later on, during a Senate hearing, it was found that somebody else signed for Atty. Garlitos but he did not authorize such signing)

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-case punctuated by various incidents relative to modes of discovery, pre-trial, postponements or continuances, MTDs, Motion to declare defendant in default, et al. -Pending hearing, Senate conducted hearing in aid of legislation on the issuances of fake titles and focused on how Kenrick was able to obtain title to lands wherein it built perimeter fence. Here is where atty. Garlitos denied that he signed the answer before the RTC -with that admission before the senate, OSG filed Urgent motion to declare Kenrick in default. - answer no signature of counsel so mere scrap of paper -RTC: granted, declared defendant in default, allowed RP to present evidence ex parte -MR: Denied, so petition for certiorari -CA: reversed RTC statements of Atty. Garlitos in the Senate hearing unreliable, not subject to cross examination Acts of Atty Garlitos after the filing of the answer: although he did not sign it, he prepared the draft of the answer and even if it was signed by another person, he did not contest it and even represented Kenrick in another case - these acts supposedly cured whatever defect the answer had ISSUE: WON CA erred ? YES. Kenrick is really in default, for their answer was not signed therefore the said pleading is deemed as a mere scrap of paper and thus they are not considered to have submitted any answer at all. On the alleged blanket authority given by Atty. Garlitos for anyone to sign the draft answer he prepared -acts of Kenrick was deemed to have adopted the statements of Atty. Garlitos (that the answer submitted was not signed by him therefore, they have submitted a defective answer) - adoptive admission -SIGNED PLEADING: signed by the counsel or the party himself; counsel's signature cannot be delegated and means that he certifies that he has read the pleading; that, to the best of his knowledge, information and belief, there is a good ground to support it; and that it is not interposed for delay. Under the Rules of Court, it is counsel alone, by affixing his signature, who can certify to these matters. On liberal interpretation of rules (rules are mere technicalities….) Procedural requirements which have often been disparagingly labeled as mere technicalities have their own valid raison d’ etre in the orderly administration of justice. To summarily brush them aside may result in arbitrariness and injustice. 19 The Court’s pronouncement in Garbo v. Court of Appeals 20 is relevant: Procedural rules are [tools] designed to facilitate the adjudication of cases. Courts and litigants alike are thus [enjoined] to abide strictly by the rules. And while the Court, in some instances, allows a relaxation in the application of the rules, this, we stress, was never intended to forge a bastion for erring litigants to violate the rules with impunity. The liberality in the interpretation and application of the rules applies only in proper cases and under justifiable causes and circumstances. While it is true that litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice. Like all rules, procedural rules should be followed except only when, for the most persuasive of reasons, they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the prescribed procedure. 21 In this case, respondent failed to show any persuasive reason why it should be exempted from strictly abiding by the rules. As a final note, the Court cannot close its eyes to the acts committed by Atty. Garlitos in violation of the ethics of the legal profession. Thus, he should be made to account for his possible misconduct. SAN PABLO MANUFACTURING CORPORATION V. CIR 492 SCRA 192

San Pablo Manufacturing Corporation was assessed by the BIR for DEFICIENCY miller's tax and manufacturer's sales tax. It was imposed on the sales of corn and edible oil as manufactured products. SPMC opposed the assessment but their protest was denied. SPMC appealed to CTA. -CTA: cancelled deficiency manufacturer's tax on sales of corn and edible oils but not deficiency miller's tax. MR denied -SPMC appealed to CA BUT the attached VERIFICATION and CNFS to the appeal was WITHOUT THE CORPORATE SECRETARY'S CERTIFICATE, BOARD RESOLUTION OR POWER OF ATTORNEY but only with the SPMC's chief financial officer who did not appear to have authority to sign the verification and CNFS. MR DENIED ISSUE: WON CA should have given cognizance to the appeal? NO On SUBSTANTIAL COMPLIANCE (as the merits would allegedly show that SPMC was not liable for the miller's tax as the crude oil was sold to UNICHEM and UNICHEM exported it as an ingredient of fatty acid and glycerine) -R43.5 (appeals to CA from CTA): Needs pleading to be verified + CNFS. If w/o proper verification, treated as an unsigned pleading. If w/o CNFS, ground for dismissal. WHO MAY BE SIGNATORIES TO CORPORATION'S DOCUMENTS: only by natural persons duly authorized for the purpose by corporate by-laws or by specific acts of the board of directors. In the absence of authority from the BoD, no person, not even the officers of the corporation, can bind the corporation. Here: AS SPMC'S PETITION DID NOT INDICATE THAT THE PERSON WHO SIGNED THE VERIFICATION/CNFS WAS AUTHORIZED BY BOD. WHY: IT ONLY RELIED ON THE ALLEGED POWER OF THE CHIEF FINANCING OFFICER TO REPRESENT SPMC IN ALL MATTERS REGARDING FINANCES OF CORPORATION - INCLUDING FILING OF SUITS BUT: no power of attorney, no authorization from the BoD = unsigned pleading strict compliance with procedural rules is enjoined to facilitate the orderly administration of justice. Substantial compliance will not suffice in a matter involving strict observance such as the requirement on non-forum shopping, as well as verification. Utter disregard of the rules cannot justly be rationalized by harping on the policy of liberal construction. Even if grant substantial compliance, SPMC still is liable for miller's tax -The tax exemption applied only to the exportation of rope, coconut oil, palm oil, copra by-products and dessicated coconuts, whether in their original state or as an ingredient or part of any manufactured article or products, by the proprietor or operator of the factory or by the miller himself. -The language of the exemption proviso did not warrant the interpretation advanced by SPMC. Nowhere did it provide that the exportation made by the purchaser of the materials enumerated in the exempting clause or the manufacturer of products utilizing the said materials was covered by the exemption. Since SPMC’s situation was not within the ambit of the exemption, it was subject to the 3% miller’s tax imposed under Section 168 of the 1987 Tax Code. TRINIDAD V. ACAPULCO 493 SCRA 179 Facts Backstory: Acapulco owed Trinidad around P566k. Trinidad's version: as payment for the P566k, Acapulco gave him the Mercedez Benz she bought from Canete for P500k by way of dacion en pago. A deed of sale was executed to that effect. He did not give instructions to Acapulco to buy it from Canete, he did not borrow it from Acapulco and Acapulco did not demand for its return Acapulco's version: Acapulco was asked by Canete to sell the Mercedes Benz for P580k (but she could buy it herself for P500k). While she was finding a buyer, Trinidad borrowed the car from her and

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instructed her to buy the car from Canete herself then Trinidad would then pay her (so bayaran muna nya para mura bili then saka bibilhin ni Trinidad). However, after buying the Benz from Canete, Trinidad did not return the car and did not pay Acapulco, saying that he would just offset whatever Acapulco owes to him. As a result, the checks issued by Acapulco in favor of Canete (to pay the P500k) were not funded and bounced. Criminal charges were filed against her by Canete. -Acapulco filed Complaint for nullification of sale she made in favor of Trinidad, prayed that the car be returned to her and that Trinidad pay damages. -Trinidad alleged that there was dacion en pago between them (and alleged those above) -Pre-trial order focused on WON there was dacion en pago between them RTC: NO DACION EN PAGO because no common consent (for Acapulco); -MR :he alleged that there was implied consent on the part of Acapulco because she delivered the car herself after he threatened that he'll file an estafa case against her -Supplemental Motion: assuming no consent from Acapulco, there was legal compensation (since Acapulco owed him P566k and the cost of the car was P500k) -appealed to CA CA: affirm (1) legal compensation allegation filed too late (2) parties already agreed that the issue would only be WON there was dacion en pago (3) dacion en pago was not present - Acapulco did not give consent (4) no legal compensation (obligation in money not equivalent to delivery of car) (5) admission that the sale price of the car was not paid by him (as he wanted that the car be given as payment for Acapulco's debts) entitled Acapulco to file action for rescission of sale ISSUE: WON legal compensation argument of Trinidad should still be appreciated, though not expressly stated in his Answer to the Complaint before RTC, as his allegations in the answer and the facts proven in TC shows the presence of legal compensation HELD: For TRINIDAD. There's legal compensation On technical rules (late raising of issue of legal compensation): -Our rules recognize the broad discretionary power of an appellate court to waive the lack of proper assignment of errors and to consider errors not assigned. The interest of justice dictates that the Court consider and resolve issues even though not particularly raised if it is necessary for the complete adjudication of the rights and obligations of the parties and it falls within the issues already found by them. While it is true that petitioner failed to raise the issue of legal compensation at the earliest opportunity, this should not preclude the courts from appreciating the same especially in this case, where ignoring the same would only result to unnecessary and circuitous filing of cases. Indeed, the doctrine that higher courts are precluded from entertaining matters neither alleged in the pleadings nor raised during the proceedings below but ventilated for the first time only in a motion for reconsideration or on appeal, is subject to exceptions, such as when: a. grounds not assigned as errors but affecting jurisdiction over the subject matter; b. matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law; c. matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice; d. matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored;

e. f.

matters not assigned as errors on appeal but closely related to an error assigned; and matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent.

ON WON there was LEGAL COMPENSATION -Compensation takes effect by operation of law even without the consent or knowledge of the parties concerned when all the requisites mentioned in Article 1279 of the Civil Code are present. This is in consonance with Article 1290 of the Civil Code which provides that: Article 1290. When all the requisites mentioned in article 1279 are present, compensation takes effect by operation of law, and extinguishes both debts to the concurrent amount, even though the creditors and debtors are not aware of the compensation. Since it takes place ipso jure, when used as a defense, it retroacts to the date when all its requisites are fulfilled. Article 1279 provides that in order that compensation may be proper, it is necessary: that each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other; that both debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and also of the same quality if the latter has been stated; that the two debts be due; that they be liquidated and demandable; that over neither of them there be any retention or controversy, commenced by third persons and communicated in due time to the debtor. Here, petitioner’s stance is that legal compensation has taken place and operates even against the will of the parties because: respondent and petitioner were personally both creditor and debtor of each other; the monetary obligation of respondent was P566,000.00 and that of the petitioner was P500,000.00 showing that both indebtedness were monetary obligations the amount of which were also both known and liquidated; - of no moment if the other obligation was the delivery of the car both monetary obligations had become due and demandable—petitioner’s obligation as shown in the deed of sale and respondent’s indebtedness as shown in the dishonored checks; and neither of the debts or obligations are subject of a controversy commenced by a third person.

SPECIAL PROCEEDINGS REPUBLIC VS. COURT OF APPEALS 458 SCRA 200 (2005) Facts: -Apolinaria Malinao Jomoc wanted a declaration of the presumptive death of her husband Clemente Jomoc, who has been absent for 9 years, to be able to marry again. -RTC: granted it, declared her husband presumptively dead …basis: Article 41,par2, FC: four consecutive years only required; must institute a summary proceeding for the declaration of presumptive death of absentee spouse -Republic, through OSG, sought to appeal by filing ONLY A NOTICE OF APPEAL -TC disapporved the Notice of appeal: based on Rule 41, Section 2(a), there should also be a RECORD OF APPEAL filed and served as the present case was a special proceeding -OSG filed MR: denied -OSG filed Petition for certiorari before CA: declaration of presumptive death is NOT A SPECIAL PROCEEDING or a case of multiple or separate appeals which would require a record on appeal 3|S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

-CA: denied Petition for certiorari: (1) OSG failed to attach CTC of assailed order (TC's denial of MR) (2) OSG failed to attach a copy of the order declaring Clemente Jomoc presumptively dead ---based on (1) and (2) alone + Rule 46.3: the case should have been dismissed! (3) Declaration of presumptive death is a SPECIAL PROCEEDING as it merely seeks for a declaration of the trial court of the presumptive death of the absentee spouse. It does not seek enforcement or protection of a right or the prevention or redress of a wrong. Neither does it involve a demand of a right or a COA that can be enforced ISSUE: WON THE DECLARATION OF PRESUMPTIVE DEATH OF AN ABSENTEE SPOUSE IS A SPECIAL PROCEEDIGN OR A SUMMARY PROCEEDING (IF NOT A SPECIAL PROCEEDING, DOES NOT NEED A RECORD ON APPEAL) HELD: it is NOT A SPECIAL RPOCEEDING! RULE 72: SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES Section 1. Subject matter of special proceedings. – Rules of special proceedings are provided for in the following: a. Settlement of estate of deceased persons; b. Escheat; c. Guardianship and custody of children; d. Trustees; e. Adoption; f. Rescission and revocation of adoption; g. Hospitalization of insane persons; h. Habeas corpus; i. Change of name; j. Voluntary dissolution of corporations; k. Judicial approval of voluntary recognition of minor natural children; l. Constitution of family home; m. Declaration of absence and death; n. Cancellation or correction of entries in the civil registry. Sec. 2. Applicability of rules of civil actions. – In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. (Underscoring supplied) CIVIL CODE Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. x x x (Emphasis and underscoring supplied) FAMILY CODE Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouses had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouses was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose pf contracting the subsequent marriage under the preceding paragraph, the spouses present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of a reappearance of the absent spouse. (Emphasis and underscoring supplied) RULES OF COURT ON WHEN RECORD ON APPEAL REQUIRED Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court in disapproving petitioner’s Notice of Appeal, provides: Sec. 2. Modes of appeal. Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (Emphasis and underscoring supplied) By the trial court’s citation of Article 41 of the Family Code, it is gathered that the petition of Apolinaria Jomoc to have her absent spouse declared presumptively dead had for its purpose her desire to contract a valid subsequent marriage. Ergo, the petition for that purpose is a "summary proceeding," following above-quoted Art. 41, paragraph 2 of the Family Code.

of procedure are not to be applied in a technical sense. Given the issue raised before it by petitioner, what the appellate court should have done was to direct petitioner to comply with the rule. As for petitioner’s failure to submit copy of the trial court’s order granting the petition for declaration of presumptive death, contrary to the appellate court’s observation that petitioner was also assailing it, petitioner’s 8-page petition filed in said court does not so reflect, it merely having assailed the order disapproving the Notice of Appeal. DEFINITION: R2.2, RO C Cause of action defined: a COA -is the act or omission By which a party violates the right of another DISTINGUISHED FROM C IVIL ACTION R2.1 AND 2 .2 R2.1: Ordinary Civil Actions, basis of every civil action Must be based on a cause of action R2.2 COA SUBJECT MATTER

Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the following provision, inter alia: xxx Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Codes requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. (Emphasis and underscoring supplied) x x x, there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary proceeding under the Family Code, not a special proceeding under the Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial court’s order sufficed. That the Family Code provision on repeal, Art. 254, provides as follows: Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders, proclamations rules and regulations, or parts thereof, inconsistent therewith are hereby repealed, (Emphasis and underscoring supplied), seals the case in petitioner’s favor.

RULE 72.1, ROC Rules of Special proceedings are provided for in the following cases: a. Settlement of estate of deceased persons b. Escheat c. Guardianship and custody of children d. Trustees e. Adoption f. Rescission and revocation of adoption g. Hospitalization of insane persons h. Habeas corpus i. Change of name j. Voluntary dissolution of corporations k. Judicial approval of voluntary recognition of minor natural children l. Constitution of family home m. Declaration of absence and death n. Cancellation or correction of entries in the civil registry APPLICABILITY OF RUL ES OF CI VIL ACTIONS

*IN SHORT, SINCE THE TRIAL COURT USED THE FAMILY CODE, AND THE FAMILY CODE DESIGNATES SUCH CASES AS A SUMMARY PROCEEDING AND NOT A SPECIAL PROCEEDING, IT IS NOT A SPECIAL PROCEEDING…

RULE 12.2, ROC In the absence of special provisions The rules provided for in ordinary actions shall be As far as practicable Be applicable in special proceedings

Finally, on the alleged procedural flaw in petitioner’s petition before the appellate court. Petitioner’s failure to attach to his petition before the appellate court a copy of the trial court’s order denying its motion for reconsideration of the disapproval of its Notice of Appeal is not necessarily fatal, for the rules

II. SETTLEMENT OF ES TATE OF DECEASED PER SONS VENUE AND PROCESS – RULE 7 3, SECTIONS 1 -4

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Section 1 – Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, Whether a citizen or an alien His will shall be proved, Or letters of administration granted And his estate settled, In the Court of First Instance in the province in which he resides at the time of his death And if he is an inhabitant of a foreign country, The Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent Shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court So far as it depends on the place of residence of the decedent Or of the location of his estate Shall not be contested in a suit or proceeding Except in an appeal from that court In the original sense Or when the want of jurisdiction appears on the record. Section 2 – Where estate settled upon dissolution of marriage When the marriage is dissolved By death of the husband or wife The community property shall be …Inventoried …Administered …And liquidated …And the debts thereof paid In the testate or intestate proceedings of the deceased spouse If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either. Section 3 – Process In the exercise of probate jurisdiction, Courts of First Instance may issue warrants and process Necessary to compel the attendance of witnesses Or to carry into effect their orders and judgments And all other powers granted to them by law. If a person does not perform an order or judgment rendered by a court in the exercise of its probate jurisdiction it may issue a warrant for the apprehension and imprisonment of such person until he performs such order or judgment or is released. Section 4. Presumption of death For purposes of settlement of his estate, A person shall be presumed dead 5|S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

If absent and unheard from for the periods fixed in the Civil Code But if such person proves to be alive, He shall be entitled to the balance o his estate After payment of all his debts. The balance may be recovered by motion in the same proceeding. Civil Code Provisions relevant: Article 390: 10yr-absence for purposes of opening succession If 75 years: absence of 5 years Article 391: danger of death: 4 years a. On board a vessel lost during a sea voyage b. On board a plane which is missing c. Was in the armed forces and has taken part in war d. Has been in danger of death under other circumstances Article 392: recovery of property upon reappearance If the absentee appears Or without appearing his existence 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 acquired therewith; But he cannot claim either fruits or rents Regalado: Article 392 + Rule 73.4: conditions of recovery of absentee (a) All debts must have been paid (b) He shall recover his property in the condition in which it may have been found, together with the price of any property that may have been alienated or the property acquired therewith (c) He is not entitled to fruits or rents SAN JUAN V. CRUZ, 479 SCRA 410 SHORT SUMMARY: THIS IS THE CASE WHEREIN A DEVISEE OF A DECEASED PENDING PETITION FOR PROBATE DIED, AND HIS HEIRS WERE PRESENTED TO SUBSTITUTE HIM, BUT ONE OF THE HEIRS OF THE DECEDENT OPPOSED SAID SUBSTITUTION, INSISTING THAT A COURT-APPOINTED ADMINISTRATOR OR EXECUTOR SHOULD INSTEAD BE THE PROPER SUBSTITUTE Decedent: Loreto Samia San Juan Last will and testament: Oscar Casa as one of the devisees Death: October 25, 1988 -Atty. Teodorico Aquino filed PETITION FOR PROBATE with QC RTC -pending petition, Oscar died intestate on May 24, 1999: so Firs of Aquino et al. entered their appearances as counsel for Federico Casa, Jr. (one of Oscar's heirs) - entry of appearance DENIED: Federico Casa, Jr. was not the executor or administrator of the estate of the devisee -RTC ordered Aquino to secure appointment of administrator or executor of estate of Oscar Casa -Aquino filed pleading "Appointment of Administrator" signed by alleged heirs of Oscar Casa, praying that Federico Casa Jr. be designated as administrator of Oscar Casa's estate and that he may be substituted (Federico is the nearest accessible heir to attend the hearing of the probate of the will + most competent to assume the responsibilities and duties of the ADMINISTRATOR) -Epifanio San Juan filed MOTION TO DECLARE APPOINTMENT OF ADMINISTRATOR AS INADEQUATE OR INSUFFICIENT: heirs should present an administrator of Oscar Casa's estate as representative

>reply: (1) R3.16: heirs of Oscar may be substituted for the deceased without need for appointment of an administrator or executor of the estate (2) Court enjoined to require the representative to appear before the court -RTC: San Juan's motion DENIED: no need for appointment of administrator or executor, enough that a representative be appointed (R3.16) -San Juan filed MR, citing LAWAS V. CA: R3.16: priority still given to the legal representative of deceased (executor/administrator of estate) -in case the heirs of the deceased will be substituted, there must be a prior determination by the probate court of who the rightful heirs are, in line with A1058 NCC and R78.6 and R79.2. (so insist that there should be petition for appointment of an administrator of Oscar Casa's estate) -MR DENIED -2nd MR, append TORRES V. CA: purpose behind the rule on substitution of parties is the protection of the right of every party to due process, to ensure that the deceased party would continue to be properly represented in the suit through the duly appointed legal representative of his estate… …ONLY in the absence of an executor or administrator that the heirs may be allowed to substitute for the deceased party …2nd MR DENIED: (1) same arguments; (2) MONTANONO V. SUESA & RIERA V. PALMANORI: no need for the appointment of an administrator since a legatee is not considered either an indispensable or necessary party -MR AGAIN of San Juan: (1) cases cited did not rule on issue of WON a substitution of a legatee under the will who died during probate may be done by simply submitting an "appointment of administrator"…cases involved WON the probate court can rule on the validity of the provisions of the will >Opposition: 3rd MR prohibited by R37.3 >DENIED 3rd MR CA: dismissed (1) filed beyond the 60-day period counted from notice of denial of first MR (2) Subsequent MRs pro forma because it sought the same relief - so did not toll the running of the 60day period. -MR (only interlocutory, not final judgment so should not run 60-d period from denial of 1st MR) DENIED WON 60-day period for filing of petition for certiorari is reckoned from notice of denial of 1st MR even though a 2nd and 3rd MR of same interlocutory order had been filed and later denied YES, but different rule: -the proscription against a pro forma motion applies only to a final resolution or order and not to an interlocutory one. -2nd MR, though based on same grounds, is not pro forma BUT may still be denied on the ground that it is merely a rehash or a mere reiteration of the grounds and arguments already passed upon and resolved by the court -cannot reject 2nd MR on the ground that 2nd MR of an interlocutory order is forbidden by law Thus, there are three essential dates that must be stated in a petition for certiorari brought under Rule 65 of the Rules of Court for the nullification of a judgment, resolution or order: (1) the date when notice of the judgment, resolution or order was received; (2) when a motion for a new trial or reconsideration of the judgment, order or resolution was submitted; and (3) when notice of the denial thereof was received by petitioner.

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The requirement of setting forth the three (3) dates in a petition for certiorari under Rule 65 of the Rules of Court is for the purpose of determining its timeliness, considering that a petition is required to be filed not later than 60 days from notice of the judgment, order or resolution sought to be nullified BUT Agree with CA that Petition for certiorari should have been filed 60 days after notice of denial of 1st MR, otherwise indefinite delays will enuse WON a person nominated as "administrator" by purported heirs of a devisee or legatee may validly substitute for that devisee or legatee despite the fact that such "administrator" is not court-appointed YES. The heirs of the estate of Oscar Casa do not need to first secure the appointment of an administrator of his estate, because from the very moment of his death, they stepped into his shoes and acquired his rights as devisee/legatee of the deceased Loreto San Juan. Thus, a prior appointment of an administrator or executor of the estate of Oscar Casa is not necessary for his heirs to acquire legal capacity to be substituted as representatives of the estate.42 Said heirs may designate one or some of them as their representative before the trial court. The second paragraph of the rule is plain and explicit: the heirs may be allowed to be substituted for the deceased without requiring the appointment of an administrator or executor. However, if within the specified period a legal representative fails to appear, the court may order the opposing counsel, within a specified period, to process the appointment of an administrator or executor who shall immediately appear for the estate of the deceased. The pronouncement of this Court in Lawas v. Court of Appeals (relied upon by petitioner), that priority is given to the legal representative of the deceased (the executor or administrator) and that it is only in case of unreasonable delay in the appointment of an executor or administrator, or in cases where the heirs resort to an extrajudicial settlement of the estate that the court may adopt the alternative of allowing the heirs of the deceased to be substituted for the deceased, is no longer true. In Gochan v. Young,a case of fairly recent vintage, the Court ruled as follows: The above-quoted rules, while permitting an executor or administrator to represent or to bring suits on behalf of the deceased, do not prohibit the heirs from representing the deceased. These rules are easily applicable to cases in which an administrator has already been appointed. But no rule categorically addresses the situation in which special proceedings for the settlement of an estate have already been instituted, yet no administrator has been appointed. In such instances, the heirs cannot be expected to wait for the appointment of an administrator; then wait further to see if the administrator appointed would care enough to file a suit to protect the rights and the interests of the deceased; and in the meantime do nothing while the rights and the properties of the decedent are violated or dissipated. The Rules are to be interpreted liberally in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. They cannot be interpreted in such a way as to unnecessarily put undue hardships on litigants. For the protection of the interests of the decedent, this Court has in previous instances recognized the heirs as proper representatives of the decedent, even when there is already an administrator appointed by the court. When no administrator has been appointed, as in this case, there is all the more reason to recognize the heirs as the proper representatives of the deceased. Since the Rules do not specifically prohibit them from representing the deceased, and since no administrator had as yet been appointed at the time of the institution of the Complaint with the SEC, we see nothing wrong with the fact that it was the heirs of John D. Young, Sr. who represented his estate in the case filed before the SEC. (Emphasis supplied) VDA. DE REYES V. CA, 169 SCRA 524 (1989) Short Facts: Beatriz, (not sure if illegit or legit child) opposes the correction of judgment and the reopening of the probate proceedings to correct a alleged typographical error in the sqm of the Antipolo

land in question, claiming that there was no typographical error and the parties intended to share only that area of land. Decedent: Antonio de Zuzuarregui, Sr. Pilar Ibanez de Susuarregui: surviving spouse of decedent -administratix of the estate Illegit children: Antonio de Zuzuarregui, Jr. Enrique de Zuzuarregui Jose de Zuzuarregui *Beatriz de Zuzuarregui vda. Re reyes: daughter of Antonio Sr. by another mother Pacita Javier: niece of administratix -mother of the three illegit children Project of partition: Pilar: 12/16, inclusive of 1/2 of the assets (share of conjugal partnership) Beatriz: 1/16 Antonio, Jr.: 1/16 Enrique: 1/16 Jose: 1/16 Antipolo, Rizal property: mentioned 4x in document -adjudicated to Pilar (12/15), Antonio Jr. (1/15), Enrique (1/15) and Jose (1/15) -Pacita relinquished her right "in lieu of her bigger share in Antipolo, Rizal, real estate property" -administratix and other three distributees filed a MOTION TO REOPEN SPECIAL PROCEEDIGNS for the purpose of correcting an alleged typographical error in the description of the parcel of land (correct land area: 803,781.51, not 83,781sqm) -opposition to motion TC: (1) opened for purpose of correcting clerical error in description of land (2) correct land area to conform with description of land area in TCT (3) correction be made in the project of partition -CA: Affirm Pacita's allegation: no clerical area. The area in the project of partition is correct. She would not have relinquished her share in the Antipolo land if she new nothing would remain from the land. It was even repeated 4x in the project of partition WON there was a clerical error, which is an exemption to correcting or supplying a final judgment already entered? NONE. On correction of clerical errors: It is well settled that even if a decision has become final, clerical errors or mistakes or omission plainly due to inadvertence or negligence may be corrected or supplied even after the judgment has been entered. The correction of a clerical error is an exception to the general rule that no amendment or correction may be made by the court in its judgment once the latter had become final. The court may make this amendment ex parte and, for this purpose, it may resort to the pleadings filed by the parties, the court's findings of facts and its conclusions of law as expressed in the body of the decision.

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-TC already found that a typographical or clerical error was clearly committed by inadvertence in the project of partition -probate proceeding, nature: 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. -It is readily apparent from the project of partition that it was meant to be, as in fact it is, a full and complete adjudication and partition of all properties of the estate, necessarily including the entire area of the land covered by Transfer Certificate of Title No. 42643. Thus as perceptively posed by the queries of the respondents, if the intention of the heirs was to make only a partial adjudication and distribution of the subject parcel of land, why is it that they did not make any further disposition of the remaining balance of 720,000 square meters? What sound reason would the heirs have in holding in suspense the distribution of the difference of 720,000 square meters? -if they cannot see eye to eye, why share properties as co-owners? -weird that the parties came up with 83,781, just omitting the zeroes. So only logical reason is that they just forgot to put zero. -according to her own computation, she already received her 1/16 share in the estate. There would not be a substantial difference in value in their shares... REYNOSO V. SANTIAGO, 85 PHIL 268 Short summary: husband and eldest son wanted to reopen the probate proceedings of the deceased wife/mom and wanted the reappointment of the surviving husband as the executor Facts: Decedent: Salvadora Obispo S.Spouse: Victorio Reynoso Eldest son: Juan Reynoso -Leoncio Cadiz and other heirs of decedent Salvadora Obispo presented an application in CFI for administration of Salvadora's property (No. 2914) -Father and son opposed application and filed a document, allegedly the last will and testament of Salvadora, w/ a counter petition for probate TC: alleged last will and testament is a forgery CA: reversed -Father and son filed 2 petitions, one special proceedign (No. 2914) an another under a separate and new docket number (3107) and with different title (Testate Estate of the deceased Salvadora Obispo) 1st petition: (1) special administrator, Meliton Palabrica (2914), be ordered to turn over the properties of the deceased and proceeds of copra, nuts and other agricultural products to Victorio Reynoso, and render accounting within reasonable time; (2) render an accounting w/n a reasonable time (3) closing of intestate proceeding 2nd petition: estate be administered and settled in special proceeding, Victorio Reynoso be appointed as executor -prayer for accounting -delivery by him to the new executor of the properties -2 petitions decided separately by Judge Santiago

1st petition: substitution unnecessary, inconvenient and expensive + intestate proceeding should not be converted into a testate proceeding in the same original expediente w/o the necessity of changing its number, name or title -withheld: because of the pendency on appeal of a case in which special administrator is plaintiff and appellee and Victorio Reynoso defendant and appellant (re: parcel of coconut land) WON the intestate proceeding should be discontinued and a new proceeding should be instituted instead? -this is in the sound discretion of the court. In no manner does it prejudice the substantial rights of any heirs or creditors. Amor propio is perhaps the only thing is at stake on this phase of the controversy. WON a regular executor should be appointed? -appointment of the deceased's husband as executor or administrator: If one other than the surviving spouse is appointed, which is possible, the feared conflict will not materialize. If Victorio Reynoso is chosen, a special administrator may be named to represent the estate in the suit against him. Section 8 of Rule 87 provides that "If the executor or administrator has a claim against the estate he represents, he shall give notice thereof, in writing, to the court, and the court shall appoint a special administrator who shall, in the adjustment of such claim, have the same power and be subject to the same liability as the general administrator or executor in the settlement of the claims." The situation in which Victorio Reynoso is found with reference to the land within the spirit if not exactly within the letter of this provision. -Subject to this observation, an administrator should be appointed without delay in accordance with the final decision of the Court of Appeals. 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. The Court of Appeals having decreed the probate of the will and the appointment of an albacea, there is no valid reason for the further retention of a special administrator. The appointment of a regular administrator is necessary for the prompt settlement and distribution of the estate. There are important duties devolving on a regular administrator which a special administrator can not perform, and there are many actions to be taken by the court which could not be accomplished before a regular administrator is appointed. B. EXTRAJUDICIAL SET TLEMENT BY AGREEMENT BETWEEN HEIRS – SU MMARY SETTLEMENT OF ESTATE S Section 1. Extrajudicial settlement by agreement between heirs If the decedent left no will And no debts And the heirs are all of age Or the minors are represented by their judicial or legal representatives duly authorized for the purpose The parties may, Without securing letters of administration Divide the estate among themselves as they see fit By means of a public instrument filed in the office of the register of deeds And should they disagree They may do so in an ordinary action of partition. If there is only one heir He may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds The parties to an extrajudicial settlement, Whether by public instrument 8|S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

or by stipulation in a pending action for partition or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument or stipulation in the action for partition or the affidavit in the office of the register of deeds a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under Section 4 of this rule. It shall be presumed that the decedent left no debts If no creditor files a petition for letters of administration Within two (2) years after the death of the decedent. The fact of the extrajudicial settlement Or administration Shall be published in a newspaper of general circulation In the manner provided in the next succeeding section; But no extrajudicial settlement shall be binding upon any person Who has not participated therein Or had no notice thereof. Section 2 – Summary settlement of estates of small value Whenever the gross value of the estate of a deceased person Whether he died testate or intestate, Does not exceed Php10,000.00 And that fact is made to appear to the Court of First Instance having jurisdiction of the estate By the petition of an interested persn And upon hearing, Which shall be held not less than 1 month Nor more than 3 months From the date of the last publication of a notice which shall be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of the will, if there be, to determine who are the persons legally entitled to participate in the estate, and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due; and such persons, in their own right,

if they are of lawful age and legal capacity, or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate to be awarded to them respectively. The court shall make such orders as may be just Respecting the costs of the proceedings, And all orders and judgments made or rendered in the course thereof Shall be recorded in the office of the clerk And the order of partition or award, If it involves real estate, Shall be recorded in the proper register’s office.

Shall remain charged with a liability to Creditors, Heirs, Or other persons For the full period of 2 years after such distribution, Notwithstanding any transfers of real estate that may have been made.

Section 3 – Bond to be filed by distributees The court, Before allowing a partition in accordance with the provisions of the proceeding section, may require the distributes, if property other than real is to be distributed, to file a bond in an amount to be fixed by the court, conditioned for the payment of any just claim which may be filed under the next succeeding section.

Cases CRUZ VS. CRISTOBAL, 498 SCRA 37 Short Summary: Children of first marriage of dad found out after 60 years that the children of 2nd marriage had an EJ Partition of the only property left by their dad, excluding them, so they filed for annulment of said partition but both TC and CA ruled that their right is already barred by laches.

Section 4 – Liability of distributees and estate If it shall appear at any time within 2 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 2 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 jurisdiction 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 distribute shall contribute in the payment thereof, And may issue execution, If circumstances require, Against the bond provided in the next preceding section Or against the real estate belonging to the deceased, Or both. Such bond and such real estate 9|S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

Section 5 – Period for claim of minor or incapacitated person If on the date of the expiration of the period of 2 years prescribed in the preceding section The person authorized to file a claim is a minor or mentally incapacitated, Or is in prison Or outside of the Philippines, He may present his claim within 1 year after such disability is removed.

1st marriage children: Buenaventura Cristobal and Ignacia Cristobal >Elisa-bunso >Mercedes - eldest sister >Anselmo >Socorro (SAME) 2nd marriage children: Buenaventura Cristobal and Donata Enriquez >Norberto >Florencio >Eufrosina >Jose (JENF) Dad bought land in San Juan in 1926. He died in 1930. So children squabble over property. -Children of 2nd marriage executed an EJ partition of San Juan property w/o knowledge of 1st marriage children (1st marriage children only found out about it after 6 decades) -they attempted to settle at the barangay level but failed to do so. -1st marriage children filed COMPLAINT FOR ANNULMENT OF TITLE AND DAMAGES: (1) Annulment of deed of partition (2) cancellation of TCTs in favor of 2nd marriage children (3) re-partitioning of the subject property (4) damages -evidence presented to prove filiation (by 1st marriage children) *baptismal certificates of Elisa, Anselmo and Socorro

*Certification from Local Civil Registrar for Socorro that the records in 1909 (when she was born) were all destroyed due to ordinary wear and tear *Testimonies: >Elisa: mom (Ignacia) died when she was only 1y7m …lived with aunt Martina Cristobal because dad married again …brother Anselmo and sister Socorro lived with 2nd family in San Juan …when dad died, Anselmo lived with her and their aunt then Socorro lived with Mercedes …when Stepmom Donata died, 2nd family children lived with Elisa, Anselmo and their aunt …she is now living in the disputed San Juan property since 1948. Other houses in the area belonged to half brothers and sisters -out of the 535sqm, she only occupies 36sqm of the San Juan lot -2nd marriage children divided the property among themselves w/o giving 1st marriage children their share -she was offered by Eufrosina to choose between a portion of the land or money but said she'll have to consult the other 1st marriage children. When she inquired, she found out that the 2nd marriage children already divided amongst themselves the said property to the exclusion of the 1st marriage children CROSS: knew that the 2nd marriage children were the ones paying real estate tax due to the land >Ester Santos: corroborated what Elisa already said …said that the children had harmonious relationship, until when the 1st marriage children and their grandchildren were called squatters by the 2nd marriage children and their grandchildren CROSS: did not know the name of the 1st wife though she knew Buenaventura was married prior to marriage with Donata >Jose (presented by the 1st FC though belonging to the 2nd FC): only found out about the 1st FC when they lived with aunt Martina, and did not admit that Elisa was their sister but only offered land so that she could have a piece of property of her own Evidence of 2nd FC (respondents): *Testimonies: >Eufrosina: parents (Donata and Buenaventura) were married in 1919. They bought the San Juan property in 1926. …they lived with Aunt Martina since their parents died and knew since they were kids about the 1st FC (that they were their brothers and sisters) …admitted that they did execute an EJ Partition of the San Juan property but asserted that the 1st FC never asserted their alleged right over the property …that they were the ones paying for the real estate tax of said property TC: dismissed case: petitioners failed to prove their filiation with Buenaventura Cristobal …baptismal and birth certificates have scant evidentiary value …inaction for a long period of time amounted to laches CA: were able to prove their filiation thru "other means allowed by the Rules of Court and special laws" BUT they are barred by lachees WON LACHES APPLY WHEN IT RESULTS TO GROSS INJUSTICE AND INEQUITY SOUGHT TO BE PREVENTED BY SUCH PRINCIPLE NO.

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-PRELIMINARY MATTER: although the title of the pleading filed by the petitioners is for annulment of title and damages, they prayed for the re-partitioning of the subject land so the court would not limit their decision on the title -WON Filiation proved: A172. Filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) the open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws: may consist of the child’s baptismal certificate, a judicial admission, a family bible in which the child’s name has been entered, common reputation respecting the child’s pedigree, admission by silence, the testimony of witnesses, and other kinds of proof of admission under Rule 130 of the Rules of Court -in this case, the petitioners were able to present many evidences which would show that they were indeed children of Buenaventura. The respondents on the other hand failed to refute the claim of the petitioners that they were Buenaventura's children (some even admitted that they were their half bro and sis) -WON DEED OF PARTITION VALID: R74.1 The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. (Underscoring supplied) -here: the sole property of Buenaventura's estate is the San Juan property, thus, it is equivalent to the EJ settlement of t his estate. As the 1st MC were excluded from said partition (and did not have notice thereof), the said partition would not bind them. -WON Action has already prescribed No. *Article 494, NCC: "no co-owner shall be obliged to remain in the co-ownership. Such co-owner may demand at anytime the partition of the thing owned in common, insofar as his share is concerned." ... "No prescription shall lie in favor of a co-owner or co-heirs as long as he expressly or impliedly recognizes the co-ownership." *Budlong vs. Bondoc: action for partition is imprescriptible. It cannot be barred by prescription -how divided: Old civil code applies (as Donata and Buenaventura both died in the 1930s when the NCC was only effective 1950). Art 921 and 931: intestate succession = all children would divide the estate equally Art834: widow was only entitled to usufruct over property, which would terminate upon her death WON Laches would apply. NO. -Laches is the negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it has abandoned it or declined to assert it. It does not involve mere lapse or passage of time, but is principally an impediment to the assertion or enforcement of a right, which has become under the circumstances inequitable or unfair to permit.

-There is no evidence showing failure or neglect on their part, for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier. The doctrine of stale demands would apply only where for the reason of the lapse of time, it would be inequitable to allow a party to enforce his legal rights. Moreover, absence any strong or compelling reason, this Court is not disposed to apply the doctrine of laches to prejudice or defeat the rights of an owner. Laches is a creation of equity and its application is controlled by equitable considerations. Laches cannot be used to defeat justice or perpetuate an injustice. Neither should its application be used to prevent the rightful owners of a property from recovering what has been fraudulently registered in the name of another. *Nominal damages awarded CUA V. VARGAS, 506 SCRA 374 SHORT SUMMARY: Chua bought Catanduanes property from some of the co-heirs but when the nonsignatory co-heirs found out about it and he refused to resell the land to the latter, the latter instituted case against him, which was won in the CA (holding that the partition and sale were void and not binding on the part of the non-signatory co-heirs who were not informed of the said transactions) Mom/Decedent: Paulina Vargas Heirs: Ester Visitacion Juan Zenaida Rosario Andres Gloria Antonina Florentino Those who signed the notarized EJ Settlement: Ester Visitacion Juan Zenaida Rosario -the said EJ Settlement was published in Catanduanes Tribune for 3 consecutive weeks -they were also the ones who executed an EJ Settlement Among Heirs with Sale with Cua *the latter 4 never signed any document *all documents executed and published in 1994 -one of the heirs (Gloria Vargas, widow of Santiago Vargas) claimed that she only knew of the EJ Settlement + Sale when the original house was demolished sometime in 1995; claimed she was unaware of said settlement -tried to redeem the property from Cua but Cua refused their offer -amicable settlement not reached in barangay level

-ACTION FOR ANNULMENT OF EJ SETTLEMENT AND LEGAL REDEMPTION OF LOT, MTC: 30-d period ff a written notice by vendors to co-owners not sent to them so the EJ Settlement and Sale were null and void and had no legal effect on them MTC: DISMISS -transaction occurred after partition so the co-owners could validly dispose of their shares -written notice of sale under A1088, though not sent, was cured by the ACTUAL KNOWLEDGE OF SALE (which was more than 30d before filing of complaint) -no bad faith on part of Cua RTC, appeal: affirm MTC CA: Reversed RTC and MTC -pursuant to Section 1, Rule 74 of the Rules of Court, the extrajudicial settlement made by the other coheirs is not binding upon respondents considering the latter never participated in it nor did they ever signify their consent to the same. -MR Denied WON PUBLICATION of the EJ Partition was binding on the non-signatory heirs because it constitutes due notice and therefore, the non-signatory co-heirs were already estopped from assailing the partition and sale NO. Publication was made AFTER THE PARTITION WAS MADE, NOT BEFORE WHICH WAS REQUIRED IN R74.1 -The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby. It contemplates a notice that has been sent out or issued before any deed of settlement and/or partition is agreed upon (i.e., a notice calling all interested parties to participate in the said deed of extrajudicial settlement and partition), and not after such an agreement has already been executed as what happened in the instant case with the publication of the first deed of extrajudicial settlement among heirs. -The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent's estate. In this connection, the records of the present case confirm that respondents never signed either of the settlement documents, having discovered their existence only shortly before the filing of the present complaint. Following Rule 74, these extrajudicial settlements do not bind respondents, and the partition made without their knowledge and consent is invalid insofar as they are concerned. WON THE RESPONDENTS NON-SIGNATORY CO-HEIRS HAD RIGHT TO REDEEM? YES. -sale of pro indiviso shares allowed, subject to right of redemption of other co-heirs. This right was never lost because the non-signatory co-heirs were never notified in writing of the actual sale. NOTIFICATION IN WRITING OF THE SALE BY THE VENDOR is required to start the period of redemption (w/n 1 month from the time they were notified in writing of the sale); even if the co-heirs have actual knowledge of sale, the notification in writing is still required. As there was no such notice here, the right to redeem the shares is still with the non-signatory co-heirs. -method of notification remains exclusive, no alternative provided by law -purpose of A1088: keep strangers to the family out of a joint ownership WON Cua was a builder in GF

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-not in GF because he was very much aware that NOT ALL THE HEIRS PARTICIPATED IN THE EJ SETTLEMENT + SALE, as evident from the face of the document itself -since no valid partition yet, no sale could occur. Despite this glaring fact, and over the protests of the respondents, he still constructed improvements on the property

Section 4. Custodian and Executor subject to fine for neglect A person Who neglects any of the duties required in the two last preceding sections Without excuse satisfactory to the court Shall be fined not exceeding P2k.

WON MTC does not have jurisdiction, this being incapable of pecuniary estimation Cua estopped thru active participation in the MTC

Section 5. Person retaining will may be committed. A person Having custody of a will after the death of the testator Who neglects without reasonable cause to deliver the same, When ordered so to do, To the court having jurisdiction, May be committed to prison and there kept until he delivers the will.

WON it should still be dismissed for non-joinder of indispensable parties NO. -indispensable party: party-in-interest, without whom there can be no final determination of an action and who is required to be joined as either plaintiff or defendant. -here: prayer of complaint was that they be allowed to redeem shares in property sold. The other coheirs already relinquished their right over their shares to Cua with the alleged sale. As a result, the other co-heirs who sold him the property are not anymore needed.

VITUG V. COURT OF APPEALS Short Summary: Romarico and Dolores had a joint account with Bank of American National Trust and Savings Assn. and a SURVIVORSHIP AGREEMENT wherein it was agreed that upon death of one of them, the surviving spouse would own the proceeds of the account. Romarico withdrew the said funds and used it to pay for estate tax, and now wants to acquire authority to dispose of other properties of his wife’s estate for reimbursement of the “advance” he made. The oppositor alleged that he is not entitled to the said reimbursement as the funds used, i.e. the funds of the Joint account, was part of the conjugal property. The Court upheld the SURVIVORSHIP AGREEMENT. Digest: -Romarico Vitug and Dolores Luchangco-Vitug had a joint account in the Bank of American National Trust and Savings Associations. They also have a survivorship agreement wherein it was agreed that upon death of 1 spouse, the surviving spouse would own all the collectibles from the said account. -Dolores died. Romarico paid for the estate tax and other dues using the money in the joint savings account. Pending probate proceedings, Romarico and Rowena Faustino-Corona were appointed as cospecial administrator, the appointed executrix being in the states. -Romarico filed a motion for authority from the probate court to sell certain shares of stock and real properties belonging to the estate. -Rowena opposed, arguing that the money spent was part of the estate, it being part of the conjugal property of the spouses. TC: upheld survivorship agreement, granted Romarico's motion CA: survivorship agreement is a conveyance mortis cause, should comply with the formalities of a valid will. If it's a donation inter vivos, it is a prohibited donation.

On improper verification and CNFS Rule may be relaxed. And since the respondent share a common interest with the other respondent, her sole signature complies with the rules. C. PRODUCTION OF WIL L ; ALL OWANCE OF WILL NECESSARY – RULE 75, SECTIONS 1 -5 Section 1. Allowance necessary. Conclusive as to execution. No will shall pass Either real or personal estate Unless it is proved and allowed in the proper court. Subject to the right of appeal, Such allowance of the will shall be conclusive as to its due execution. Section 2. Custodian of will to deliver. The person who has custody of a will shall, within 20 days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the will. Section 3. Executor to present will and accept or refuse trust. A person named as executor in a will Shall, Within 20 days after he knows of the death of the testator, Or Within 20 days after he knows that he is named executor If he obtained such knowledge after the death of the testator, Present such will to the court having jurisdiction, Unless the will has reached the court in any other manner, And shall, Within such period, Signify to the court In writing His acceptance of the trust Or his refusal to accept it. 12 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

HELD: Survivorship agreement valid. Grant motion of Romarico. 1.

NOT A CONVEYANCE MORTIS CAUSA = WILL -because the property conveyed is not exclusively owned by DOLORES (decedent) A will has been defined as "a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death." 14 In other words, the bequest or device must pertain to the testator. 15 In this case, the monies subject of savings account No. 35342-038 were in the nature of conjugal funds RIVERA V. PBTC (CASE WHERE THE MAID WAS GIVEN THE PROCEEDS OF THE JOINT ACCOUNT): not a conveyance mortis causa if the property sought to be conveyed is not the exclusive property of the conveyor

MACAM V. GATMAITAN (LEONARDA OWNED THE HOUSE, JUANA OWNED THE BUICK AUTOMOBILE. ONE WOULD GET THE OTHER'S PROPERTY UPON THE OTHER'S DEATH): It's an ALEOTORY CONTRACT (article 1790) wherein 1 of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. 2. a. b.

NOT A DONATION INTER VIVOS It would take effect after death of one No conveyance of exclusive property of one spouse to the other

3.

IT'S AN ALEOTORY CONTRACT Article 2010: By an aleatory contract, one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain, or which is to occur at an indeterminate time. Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the happening of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate time." A survivorship agreement, the sale of a sweepstake ticket, a transaction stipulating on the value of currency, and insurance have been held to fall under the first category, while a contract for life annuity or pension under Article 2021, et sequentia, has been categorized under the second. In either case, the element of risk is present. In the case at bar, the risk was the death of one party and survivorship of the other.

4.

Caution: survivorship agreement may operate against the law: >mere cloak to hide an inofficious donation >to transfer property in fraud of creditors >defeat the legitime of a forced heir -but here, no such vice occurs ACAIN V. IAC Short Summary: Siblings of the deceased wanted the probate of his alleged will but the wife and adopted daughter filed MTD on the ground that they were preterited. Court held that there was preterition on the part of the adopted daughter, it being that an adopted child acquires the status of a legitimate child and thus is considered a compulsory heir in the direct line. As a result, the intestacy would ensue and the probate of the will should not have been granted, the defect in the will apparent from the start. (Exception to rules on Probate proceedings) Facts: -Allegedly, Nemesio Acain died leaving a will whereing only his brothers Antonio, Flores, and Jose and sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. His wife and adopted daughter were not mentioned in the will. -the sibling sought the probate of the will, the widow Rosa and adopted daughter Virginia opposed on the ff grounds: (1) no legal capacity to institute the proceedings (2) merely a universal heir (3) widow and adopted daughter were preterited TC: Deny motion to dismiss by oppositors -MR denied, went directly before SC on a petition for certiorari and prohibition. SC referred to IAC IAC: granted petition of widow and adopted daughter, dismiss petition for probate. WON Dismissal of the Probate Petition valid? YES

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1. Though widow not preterited (not compulsory heir in the direct line), the adopted daughter was preterited A854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devisees and legacies shall be valid insofar as they are not; inofficious. If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice to the right of representation. Requisites: 1. The heir omitted is a forced heir (in the direct line); 2. The ommission is by mistake or thru an oversight. 3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum supplied). -on widow: even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. -on adopted daughter: PD 603, Article 39: adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child. 2. When there's preterition, the will is annulled and there would be intestate succession. No legacies or devisees here so intestacy would ensue. 3. There being intestacy, the sibling cannot intervene in the probate of the will, he having no interest, thus no legal standing. -Who could intervene: *have interest in the estate *have interest in the will *have interest in the property to be affected by the will (executor or claimant) *one who would be benefited by the estate 4. Certiorari is proper, when the TC committed GAD in not dismissing the probate proceedings when it appears that the will was invalid. GR: Probate Court's authority: (1) extrinsic validity of the will (2) due execution of the will (3) testator's testamentary capcity (4) compliance w/ requisites or solemnities prescribed by law X: when the invalidity of the provisions of the will are raised. If not resolved from the start, there would be waste of time, effort, expense, plus added anxiety. D. ALLOWANCE OR DISA LLOWA NCE OF WILLS – RU LE 76 SECTION 1. WHO MAY PETITION FOR THE ALLOWANCE OF WILL Any executor, Devisee, Or legatee …Named in a will, Or any other person interested in the estate, May,

At any time after the death of the testator, Petition the court having jurisdiction to have the will allowed, Whether the same be in his possession or not, Or is lost or destroyed. The testator himself may, During his lifetime, Petition the court for the allowance of his will. SECTION 2. CONTENTS OF PETITION A petition for the allowance of a will must show, So far as known to the petitioner: (a) The jurisdictional facts; (b) the names, Ages, And residences of the heirs, legatees and devisees of the testator or decedent; (c) the probable value and character of the property of the estate (d) the name of the person for whom letters are prayed; (e) if the will has not been delivered to the court, The name of the person having custody of it. But no defect in the petition shall render void the allowance of the wil, Or the issuance of letters testamentary Or of administration with the will annexed. SECTION 3. COURT TO APPOINT TIME FOR PROVING WILL. NOTICE THEREOF TO BE PUBLISHED. When a will is delivered to, Or a petition for the allowance of a will is filed in, The court having jurisdiction, Such court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published 3 weeks successively, previous to the time appointed, in a newspaper of general circulation in the province. But no newspaper publication shall be made Where the petition for probate has been filed by the testator himself. SECTION 4. HEIRS, DEVISEES, LEGATEES, AND EXECUTORS TO BE NOTIFIED BY MAIL OR PERSONALLY. The court shall also cause copies of the notice of the time and place fixed for proving the will To be addressed to the designated or other known heirs, legatees and devisees of the testator Resident in the Philippines at their places of residence, And deposited in the post office with the postage thereon prepaid At least 20 days before the hearing, If such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also, to any person named as coexecutor not petitioning, if their places of residence be known.

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Personal service of copies of the notice at least 10 days before the day of hearing shall be equivalent to mailing. If the testator asks for the allowance of his own will, Notice shall be sent only to his compulsory heirs. SECTION 5. PROOF AT HEARING. WHAT SUFFICIENT IN ABSENCE OF CONTEST At the hearing compliance with the provisions of the last 2 preceding sections must be shown before the introduction of testimony in support of the will. All such testimony shall be taken under oath And reduced to writing. If no person appears to contest the allowance of the will, The court may grant allowance thereof on the testimony of one of the subscribing witnesses only, If such witness testify that the will was executed as is required by law. In the case of a holographic will, It shall be necessary that at least one witness …who knows the handwriting and signature of the testator Explicitly declare that the will and the signature are in the handwriting of the testator. In the absence of any such competent witness, And if the court deem it necessary, Expert testimony may be resorted to. SECTION 6. PROOF OF LOST OR DESTROYED WILL. CERTIFICATE THEREUPON. No will shall be proved as a lost or destroyed will Unless *the execution And validity of the same be established, *And the will is proved to have been >in existence at the time of the death of the testator, >Or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, *Nor unless its provisions are clearly and distinctly proved by at least 2 credible witnesses. When a lost will is proved, The provisions thereof must be distinctly stated and certified by the judge, Under the seal of the court, And the certificate must be filed and recorded as other wills are filed and recorded. SECTION 7. PROOF WHEN WITNESSES DO NOT RESIDE IN PROVINCE. If it appears at the time fixed for the hearing That none of the subscribing witnesses resides in the province, But that the deposition of one or more of them can be taken elsewhere, The court may, On motion, Direct it to be taken, And may authorize a photographic copy of the will to be made And to be presented to the witnesses on his examination, Who may be asked the same questions with respect to it, And to the handwriting of the testator and others,

As would be pertinent and competent if the original will was present. SECTION 8. PROOF WHEN WITNESSES DEAD OR INSANDE OR DO NOT RESIDE IN THE PHILIPPINES. If it appears at the time fixed for the hearing That the subscribing witnesses are dead or insane, or that none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or of any of them. SECTION 9. GROUDNS FOR DISALLOWING WILL The will shall be disallowed in any of the following cases: a. If not executed and attested as required by law; b. if the testator was insane, or otherwise mentally incapable to make a will, at the time of execution; c. If it was executed under duress, or the influence of fear, or threats; d. if it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; e. if the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto. SECTION 10. CONTESTANT TO FILE GROUNDS OF CONTEST Anyone appearing to contest the will Must state in writing his grounds for opposing its allowance, And serve a copy thereof on the petitioner and other parties interested in the estate. SECTION 11. SUBSCRIBING WITNESSES PRODUCED OR ACCOUNTED FOR WHERE WILL CONTESTED. If the will is contested, All the subscribing witnesses, And the notary in the case of wills executed under the Civil Code of the Philippines, if present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of such witnesses are present in the Philippines But outside the province where the will has been filed, Their depositions must be taken. If any or all of them testify against the due execution of the will, Or do not remember having attested to it, Or are otherwise of doubtful credibility, 15 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

The will may, nevertheless, be allowed if the court is satisfied from the testimony of other witnesses And from all the evidence presented that the will was executed And attested in the manner required by law. If a holographic will is contested, The same shall be allowed if at least 3 witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witness, and if the court deem it necessary, expert testimony may be resorted to. SECTION 12. PROOF WHERE TESTATOR PETITIONS FOR ALLOWANCE OF HOLLOGRAPHIC WILL. Where the testator himself petitions for the probate of his holographic will And no contest is filed, The fact that he affirms that the holographic will and the signature are in his own handwriting, Shall be sufficient evidence of the genuineness and due execution thereof. If the holographic will is contested, The burden of disproving the genuineness and due execution thereof shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant. SECTION 13. CERTIFICATE OF ALLOWANCE ATTACHED TO PROVE WILL. TO BE RECORDED IN THE OFFICE OF REGISTER OF DEEDS. If the court is satisfied, upon proof taken and filed, that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind, and not acting under duress, menace, and undue influence , or fraud, a certificate of its allowance, signed by the judge, and attested by the seal of the court shall be attached to the will and the will and certificate filed and recorded by the clerk. Attested copies of the will devising real estate and of certificate of allowance thereof, shall be recorded in the register of deeds of the province in which the lands lie. AZUELA V. COURT OF APPEALS Short Summary: Nephew of decedent wanted the probate of alleged will of his aunt which confers upon him the rights to land which he allegedly illegally occupies, so the other 12 heirs assailed the validity of the said will because (1) the attestation clause failed to state the number of pages; (2) the attestation clause was not signed at the margins; (3) no notarial acknowledgment; (4) decedent failed to sign on any of the pages; (5) not number correlatively in letters.

Facts -Eugenia Igslo allegedly left a will wherein the only heir mentioned were Irene Igsolo (in the states) and Felix Azuela, the nephew of the decedent. Felix sought the probate of the said will. -MTD by oppositors (12 heirs of Eugenia) alleging that the said will was forged, it's mere purpose is to serve as a defense in the forciple entry and usurpation cases filed by them against Felix. Among the defects noted by the oppositors are: (1) decedent's signature did not appear on the 2nd page of the will (2) will was not properly acknowledged RTC: admitted will to probate, taking into account the testimony of 3 witnesses + modern tendency in respect to wills -as to lack of signature: decedent signed at the end of the will - substantial compliance -lack of acknowledgment: declaration at the end of the will comprised the attestation clause and the acknowledgment -on lack of signature by witnesses on attestation clause: signature on the left-hand margin sufficient -no correlative numbering: only 2 pages so not so serious a defect -signature a forgery: testimony of witnesses to the will sufficient

Exceptions to lack of page number in the attestation clause: Singson v. Florentino: though no # of pages in the AC, the number of pages was stated in the part of the body of the will Taboada v. Rosal: the notarial acknowledgment states the number of pages 2.

On substantial compliance -it should be allowed "but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator." -what are allowed: limited to disregarding those defects that can be supplied by an examination of the will itself: -what cannot be allowed: *the total number of pages *whether all persons required to sign did so in the presence of each other

3.

On lack of signature in the AC -AC: memorandum of the facts attending the execution of the will required by law to be made by the attesting witnesses, and must necessarily bear their signatures. -signatures on the margins not enough, difference: Signature on the margins: signify that the witnesses are aware that the page they are signing forms part of the will Signature to the AC: establish that they are referring to the statements contained in the AC -pede pa if the signatures are in the AC, but no signature on the margins

4.

On lack of acknowledgement before a notary public ACKNOWLEDGEMENT: act of one who has executed a deed in going before some competent officer and and declaring it to be his act or deed. -involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed. - coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed.

5.

Other defects: *decedent failed to sign on the left-hand margins *not numbered correlatively in letters (only in arabic numerals)

CA: reversed SC: affirm CA Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the *number of pages used upon which the will is written, and *the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, *in the presence of the instrumental witnesses, and that *the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. 1.

On the number of pages: Purpose: the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended with much greater difficulty. (In re: Will of Andrada and Uy Coque v. Sioca)

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TESTATE ESTATE OF ADRIANA MALOTO V. PANFILO MALOTO Short Summary: nieces and nephews (4) thought at first that their aunt left no will so they instituted intestate proceedings but pending it, the lawyer found a copy of the will which gave 2 of the 4 bigger shares plus gave devisees almost 4 years after death. Court ruled that the petition was filed out of time and that probate proceedings should be instituted. TESTATE ESTATE OF ADRIANA MALOTO V. COURT OF APPEALS Short Summary: Continuation of the 1st case, this time probate proceedings instituted (?) but appellate court (?) found that the will was revoked, it being showed by the opponents that the will was destroyed by the 2 househelps. Court here held that the will was not destroyed because no animus revocandi, no showing that the destruction was made under the orders and in the presence of the decedent plus no res adjudicate, the ruling in the intestate proceedings should not bar probate proceedings. FACTS

- Oct.20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and Constancio Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will and testament, these four heirs commenced an intestate proceeding for the settlement of their aunt's estate. However, while the case was still in progress, the parties executed an agreement of extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate into four equal parts among the parties. The Malotos then presented the extrajudicial settlement agreement to the trial court for approval which the court did. - 3 years later, Atty. Sulpicio Palma, a former associate of Adriana's counsel (Att.Hervas), discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and purporting to be the last will and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was going through some materials inside the cabinet drawer formerly used by Atty. Hervas. - The document was submitted to the office of the clerk of the CFI of Iloilo. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what they received by virtue of the agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises and legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor. - Thus, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings therein and for the allowance of the will. When the trial court denied their motion, the petitioner came to us. We dismissed that petition and advised that a separate proceeding for the probate of the alleged will would be the appropriate vehicle. - Significantly, the appellate court while finding as inconclusive the matter on WON the document or papers allegedly burned by the househelp of Adriana, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will had been revoked. The CA stated that the presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven. The appellate court based its finding on the facts that the document was not in the two safes in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up.

Adriana's maid was not satisfactorily established to be a will at all, much less the will of Adriana. For another, the burning was not proven to have been done under the express direction of Adriana. And then, the burning was not in her presence. Both witnesses were one in stating that they were the only ones present at the place where the stove (presumably in the kitchen) was located in which the papers proffered as a will were burned. - The respondent appellate court in assessing the evidence presented by the private respondents, concluded that the testimony of the two witnesses who testified in favor of the will's revocation appear "inconclusive." We share the same view. Nowhere in the records before us does it appear that the two witnesses, Guadalupe and Eladio, both illiterates, were unequivocably positive that the document burned was indeed Adriana's will. 2. NO. The respondents claim that this bar was brought about by the petitioners' failure to appeal timely from the order of the trial court in the intestate proceeding denying their (petitioners') motion to reopen the case, and their prayer to annul the previous proceedings therein and to allow the last will and testament of the late Adriana. The doctrine of res adjudicata finds no application in the present controversy. We do not find here the presence of all the requisites of res judicata. There is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is concerned. Neither is it a judgment on the merits of the action for probate. There is likewise no Identity between the cause of action in intestate proceeding and that in an action for probate.

ISSUES 1. WON the will was revoked by Adriana. 2. WON the case is barred by res judicata.

D-1. ALLOWANCE OF WI L L PROVED OUTSIDE TH E PHILIPPINES AND AD MINIST RATION OF ESTATES THEREUNDE R

HELD 1. NO. Ratio The provisions of the NCC pertinent to the issue can be found in Article 830.[1] It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself. Reasoning In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. Animus revocandi is only one of the necessary elements for the effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his presence and under his express direction. There is paucity of evidence to show compliance with these requirements. For one, the document or papers burned by

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[1] Art. 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills: or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.

RULE 77 Section 1. Will proved outside Philippines may be allowed here. Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines. Section 2. Notice of hearing for allowance. When a copy of such will and of the order or decree of the allowance thereof,

*remainder goes to brothers and sis of surviving spouse -Mrs. Hodges died first. Mr. Hodges appointed as EXECUTOR >in Financial Statements submitted before the court, he made statements that the estate of Mrs. Hodges is 1/2 of conjugal estate >that he allegedly renounced his inheritance in a tax declaration in US >for 5 years before his death, he failed to make accounting, failed to acquire final adjudication of wife's estate -Charles died. Magno, initially administratrix of both spouse's estate, later replaced by PCIB for Charles' estate

both duly authenticated, are filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance. Section 3. When will allowed, and effect thereof. If it appears at the hearing that the will should be allowed in the Philippines, the Court shall so allow it, and a certificate of its allowance, signed by the judge, and attested by the seal of the court, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proves and allowed in such court. Section 4. Estate, how administered. – When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and such letters testamentary or of administration, shall extend to all the estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any shall be disposed of as is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country. PCIB V. ESCOLIN Short Summary: Mr. and Mrs Hodges both made in their wills provisions that upon their deaths, their whole estates should be inherited by the surviving spouse and that spouse could manage and alienate the said lands, with the exception of the Texas property. Upon death of the latter spouse, the residue of the estate inherited by the later spouse from the spouse who predeceased him would redound to the brothers and sisters. Mrs. Hodges died first then Mr. Hodges, but since there was no liquidation of Mrs. Hodges’ estate, the brothers and sisters of Mrs. Hodges wanted to determine the extent of her estate that they could inherit. (believe me, this is a short summary…case is long…) Facts -Charles & Linnie Hodges, both TEXAN nationals, provided in their respective wills that *bequeath remainder of estate to spouse…during lifetime 18 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

WON Action is prescribed? NO. 33 appeals were timely made -Court did not pass upon its timeliness WON Certiorari and Prohibition is proper? YES. Appeal insufficient remedy -many appeals, same facts, same issues = multiplicity of suits

1.

2.

WON THERE IS STILL A RESIDUE FOR MRS. HODGES' HEIRS? YES WON SPECIAL PROCEEDING FOR SETTLEMENT OF MRS. HODGES ESTATE SHOULD ALREADY BE CLOSED, BASED ON THE DECEMBER 1957 COURT ORDER ALLEGEDLY ADJUDICATING MR. HODGES AS SOLE HEIR? NO ….no final distribution to all parties concerned of the estate R90.1 (on RESIDUE): …after residue assigned to parties entitled to it, S.P. deemed ready for FINAL CLOSURE: 1. Order issued for distribution/assignment of estate among those entitled 2. Debts Funeral expenses Expenses of administration Widow allowance Taxes Etc. …should be paid already 3. Motion of party requesting the same (not motu proprio) Would include distribution of residue of estate -Here: a. No final distribution of residue of Linney's estate b. No special application made by charles/PCIB c. Merely allowed advance or partial payments/implementation of will before final liquidation d. If charles already deemed sole heir, why PCIB needed to file a motion to declare that Charles is indeed the sole heir?

3.

ON ALLEGED INTENTION OF MR. HODGES PCIB: He intended to adjudicate whole estate to himself (Thus, no residue left, thus ulit, tapos na special proceeding) BUT SC: 1. Whatever was intended, he can't deprive those who have rights over the estate 2. Order - motion filed merely for exercise of ownership pending proceeding 3. Mr. Hodges was aware that wife's siblings had rights:

      4.

1.

   2. 3.

4.

In FS, stated that 1/2 of conjugal estate belonged to Estate of Linney In Petition for will's probate, he listed the bros and sis as heirs Lawyer of Magno was initially lawyer of Charles when latter was still executor of Linney's estate - so may know hwat Charles' intended Charles admitted omitting a bro of Linney He even allegedly renounced his share of the estate (but was not proven) Charles had duty, as Surviving spouse, of trustee of wife's estate so had to act in GF

ON PROPERTIES FOR SIBLINGS: since there's still a residue, can't close SP yet >PCIB: NO LIQUIDATION OF CONJUGAL PROPERTIES YET, PCIB SHOULD SOLELY ADMINISTER EVERYTHING TO DETERMINE THE SEPARATE ESTATE OF LINNEY, OVER W/C MAGNO COULD ADMINISTER H: NO. both PCIB and Magno should administer a. It was Charles' fault why no administration of estate yet b. Admin should both be >impartial >extent of interest c. Executor (PCIB) of Executor (Charles, over Linney's) Can't administer estate of decedent (Linney) _ R78.6 d. Liquidation of conjugal partnership may be done in either spouse's probate proceedings R73.2 SUCCESSION: WON THERE'S SUBSTITUTION? None No simple or vulgar substitution (A859, NCC) …no provision for: Predecease of T for designated heir Refusal Incapacity of designated heir to accept inheritance No fideicomissary substitution …no obligation on Charles to preserve the estate There's simultaneous institution of heirs subject to resolutory condition of Charles' death -Charles was to enjoy the whole estate -but he can't dispose of property mortis causa (because it's already subject to the will made by his wife, which he agreed in the provision of his will) Charles didn't get mere usufruct: he exercises full ownership PRIL: WON RP LAW GOVERNS LEGITIME OF CHARLES? No answer yet. Remanded PCIB

Magno

Art 16,NCC: applies: law of nationality If we apply Texas PRIL law: Personal property: law of domicile Real property: law of situs (both in RP) So renvoi to RP: RP Law provides that the Surviving Spouse, being the sole heir, gets 1/2 o the conjugal property, then 1/2 goes to the estate of the spouse. If 1/2 of the estate of the spouse goes to the surviving spouse which is the sole heir, then Charles gets 1/4 of the whole conjugal property.

IF Art16 applies, then Texas law should govern; Texas law provides no legitime

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 

Court said that Texas law may apply, but since not proven as… …Courts can't take JN …should show foreign law: As certified by person holding/having custody of such law Certificate that such officer does have custody over said law Aznar can't be used to show what Texas law may contain, as there's a time difference between this case and that case, thus the Texas law might have changed in between the rulings BUT WHATEVER HAPPENS, PCIB can't claim that the estate of Linney is not entitled to at least 1/4 of conjugal property, they having argued that it is so

FROM SIR B, WITH LVE -will executed in Texas - Oklahoma -Charles made executor by Linney, but Charles had no executor - so administrator dapat -as regards foreign laws:  Should be proved as a fact R132 on Public documents SIR: Dapat use an expert witness  Prove in accordance w/rp law

SALUD TEODORO VDA DE PEREZ V. HON. ZOTICO TOLETE Short Summary: Former Filipino Sps mutually made wills with the same provisions, saying that upon death of Mr. Cunanan, his wife would inherit, and in the case that the two die at the same time, the presumption is that Mr. Cunanan died first. Both died with the rest of the family in a fire. Executor appointed in the will had the will probated abroad, but the mother of Mrs. Cunanan petitioned for the probate of the will here in RP w/o notice to the Cunanan heirs and w/o proving the foreign law applicable. The court held that the case should be remanded for the mother to show foreign law and that notice should be given to the Cunanan heirs. Facts: -DR. JOSE CUNANAN and DR. EVELYN PEREZ-CUNANAN were former Filipino doctors who were naturalized as US Citizens. -DR. JOSE CUNANAN made a will which contained stipulations as ff: o he bequeathed all his properties, wherever situated, to his wife. o If his wife dies first, he'll bequeath all his properties to their daughters. o If there's no way to tell who died first between his wife and him, he is presumed to have died first o His brother, DR. RAFAEL CUNANAN is made executor of the will -DR. EVELYN also made her will, with the same 3rd provision (that her husband is presumed to have died first) -THE WHOLE CUNANAN FAMILY DIED in a fire -DR. RAFAEL had the 2 wills probated. He was appointed as executor of the estate -the year after, MRS. PEREZ (mother of DR. EVELYN) filed petition for reprobate of the wills + prayed that she be appointed special administrator of deceased RTC Bulacan: appointed her special administratrix

-as special administratrix, she filed the ff: 1. Petition to order Philalife to deliver to her the proceeds of the life insurance policy taken by DR. JOSE with DRA. EVELYN and Jocelyn as beneficiaries. >Philamlife's manifestation: it was already delivered to her 2. Motion to order DR. RAFAEL to deliver to her the PhilTrust Passbook and the Family Saving Bank time deposit >NOTICE OF APPEARANCE for the Cunanan's: was unaware of the filing of the testate estate case, requested that the hearing for the motion be deferred and to be given notice of the proceedings >>counter-manifestation by MRS. PEREZ: a. Cunanan collaterals are not heirs nor creditors of DR. JOSE so no legal interest b.Wills of Dr. Jose and Dr. evelyn executed in accordance w/NY laws and had effects in this jurisdiction (both are US Citizens) c. under the wills it was presumed that Dr. Jose died first d. the Cunanan collaterals were not heirs, distributees… PROBATE COURT: granted Motion of Mrs. Perez that the said accounts be delivered to her >Motion to nullify proceedings filed by Cunanans: 1. They were deliberately excluded based on misrepresentation of Mrs. Perez that she was the sole heir 2. Dr. Rafael was the named executor of the estate who was not notified of the proceedings before the Bulacan court 3. Mrs. Perez unfit to be an administrator because of her misrepresentation and concealment 4. Dr. Rafael was authorized by Dr. Rafael, Sr. (Father of Dr. Jose) as his atty-in-fact 5. Dr. Rafael, Sr. is qualified to be a regular administrator of practically all the estate in the Philippines (probably Dr. Rafael lives in RP) >also filed MOTION to require Mrs. Perez to render an accounting of all monies received by her in trust for the estate -opposition by Mrs. Perez: 1. She was the sole heir of her daughter, and thus the Cunanans were complete strangers to the proceedings - not entitled notice 2. She could not conceal Dr. Rafael because he was named the executor of the will 3. That in accordance with R77, no notice required to be given to the executor, who is in fact the one who was supposed to have filed the ancillary proceedings in RP 4. If the Bulacan estate came from Dr. Jose, he already gave all his properties to his wife 5. Dr. Rafael unlawfully disbursed money belonging to the estate >reply: There was already a settlement between Mrs. Perez and the Cunanan heirs and that R77 still requires notice to be given …blah blah blah -basta there was a ruling wherein the probate decree was duly proven but still no NY law shown so the Perez's wanted to show NY law…. -now before SC… …Perez: presented evidence to show that the wills were authenticated, admitted for probatein NY court WON the wills were valid in accordance w/NY law, thus, could be admitted for probate? NO evidence yet -Will valid in RP if will valid in accordance w/ law of nationality -evidence necessary for the reprobate or allowance of wills which have been probated outside RP: 1. Due execution of the will in accordance w/ foreign law 2. Testator has his domicile in the foreign country 3. Will was admitted to probate in such country

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4. Foreign tribunal is a probate court 5. Laws of the foreign country on procedure and allowance of wills Here: Did not prove due execution of the will in accordance w/ NY law and the laws of procedure for the allowance of wills in NY WON the probate of the 2 wills should be consolidated? YES -R1.2: liberal interpretation of the ROC -what is prohibited is the making of joint wills. Here, separate wills though same provisions and concern same conjugal properties - so practical considerations dictate their joint probate WON Mrs. Perez is the sole heir of the estate, and thus the Cunanans are strangers to the proceedings and are not entitled to notice? NO -R77 provides that the will (probated abroad) should be treated as if it were an "original will" or a will that is presented for probate proceedings - so should follow R76 on publication and notice by mail or personally to the "known heirs, legatees and devisees of the testator resident in the Philippines and to the executor if he is not the petitioner. -court is of the opinion that the Cunanans are known heirs… Disposition: 1. Perez submit evidence of NY law 2. Notice should be given to the Cunanans

D-2. LETTERS TESTAME NTARY AND OF ADMINIS TRATION, WHEN AND T O WHOM ISSUED – R78 RULE 78 Section 1. Who are incompetent to serve as executors or administrators. – No person incompetent to serve as executor or administrator who: (a) Is a minor; (b) Is not a resident of the Philippines; and (c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude. Section 2. Executor of executor not to administer estate. The executor of an executor shall not, as such, administer the estate of the first testator. Section 3. Married women may serve. A married woman may serve as executrix or administratrix, and the marriage of a single woman shall not affect her authority so to serve under a previous appointment.

Section 4. Letters testamentary issued when will allowed. When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trust, and gives bond as required by these rules. Section 5. Where some coexecutors disqualified others may act. When all of the executors named in a will cannot act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will. Section 6. When and to whom letters of administration granted. – If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, 21 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. D-3. OPPOSING ISSUAN CE OF LETTERS TESTAM ENTARY, PETITION AND CON TEST OF LETTERS OF ADMINISTR ATION RULE 79 Section 1. Opposition to issuance of letters testamentary. Simultaneous petition for administration. Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the time, be filed for letters of administration with the will annexed. Section 2. Contents of petition for letters of administration. A petition for letters of administration must be filed by an interested person and must show, so far as known to the petitioner: (a) The jurisdictional facts; (b) The names, ages, and residences of the heirs, and the names and residences of the creditors, of the decedent; (c) The probable value and character of the property of the estate; (d) The name of the person for whom letters of administration are prayed. But no defect in the petition shall render void the issuance of letters of administration. Section 3. Court to set time for hearing. Notice thereof. When a petition for letters of administration is filed in the court having jurisdiction, such court shall fix a time and place for hearing the petition, and shall cause notice thereof to be given to the known heirs and creditors of the decedent, and to any other persons believed to have an interest in the estate, in the manner provided in sections 3 and 4 of Rule 76.

-they appealed via certiorari to this court Section 4. Opposition to petition for administration. Any interested person may, by filing a written opposition, contest the petition on the ground of the incompetency of the person for whom letters are prayed therein, or on the ground of the contestant's own right to the administration, and may pray that letters issue to himself, or to any competent person or person named in the opposition. Section 5. Hearing and order for letters to issue. At the hearing of the petition, it must first be shown that notice has been given as hereinabove required, and thereafter the court shall hear the proofs of the parties in support of their respective allegations, and if satisfied that the decedent left no will, or that there is no competent and willing executor, it shall order the issuance of letters of administration to the party best entitled thereto. Section 6. When letters of administration granted to any applicant. Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themselves. VDA DE MANALO V. COURT OF APPEALS Short Summary: No effort to reach settlement between relatives. Court held that Article 222 is applicable only in ordinary civil actions but here, oppositors are not being sued. This is an ordinary civil proceeding wherein only establish the status as heirs of the decedent. Longer Short summary: the decedent left 11 heirs, 8 of them initiating probate proceedings of his intestate estate. The remaining 3 heirs filed their opposition, which was denied even until court of appeals. The only point they raised on their appeal to the SC is WON the case should have dismissed based on failure to comply with a condition precedent - the absence of earnest efforts toward compromise among the members of the same family, as required by Art222, NCC. Court held that that requirement is merely for ORDINARY CIVIL ACTIONS, AND NOT FOR SPECIAL PROCEEDINGS SUCH AS THE PROBATE OF A WILL. FACTS: -Troadio Manalo died INTESTATE -he left 11 children and a wife -he left properties in Tarlac, Manila, QC and Valenzuela -8 of his children filed a petition for judicial settlement of the estate of Troadio, -the remaining 3 heirs filed an opposition, which was allowed, but their affirmative defenses were not allowed to be heard for being irrelevant -they appealed via certiorari the denial of a preliminary hearing of their affirmative defenses to CA CA: denied 22 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

WON earnest efforts towards a compromise between family members required to be made (WON this involves an ordinary civil action)? NO DETERMINE FIRST WON ORDINARY CIVIL ACTION OR SPECIAL CIVIL ACTION: -depends on: *averments *character of the relief sought …in the complaint or petition -here: a. Petition contains sufficient jurisdictional facts required in petition for settlement of estate (fact of death, residence of decedent at the time of death - foundation facts upon which all the subsequent proceedings in the administration of estate rest) b. Enumerate the names of the heirs, tentative list of properties left by the deceased sought to be settled in the probate proceedings c. Reliefs seek judicial settlement of the estate of deceased father -allegedly, there are certain features which makes the petition a complaint, and thus their opposition is merely an answer with special affirmative defenses -here, clearly a special civil action: the trial court, sitting, as a probate court, has limited and special jurisdiction and cannot hear and dispose of collateral matters and issues which may be properly threshed out only in an ordinary civil action. In addition, the rule has always been to the effect that the jurisdiction of a court, as well as the concomitant nature of an action, is determined by the averments in the complaint and not by the defenses contained in the answer. If it were otherwise, it would not be too difficult to have a case either thrown out of court or its proceedings unduly delayed by simple strategem. -on Art222, NCC: the said rule is applicable only to ordinary civil actions. "suit" (as used in the provision) refers to an action by one person or persons against another or others in a court of justice in which the plaintiff pursues the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity. -why not adversary proceedings: a. Oppositors not being sued for any COA, no defendant impleaded. b. Petition for issuance of letters of administration, settlement and distribution of estate is a special proceeding; it is a remedy whereby the petitioners seek to establish *facts: fact of death of father *status as heirs of their father

SUMILANG V. ROMAGOSA Short Summary: In Tagalog, the will of the decedent made Sumilang the sole heir. But allegedly, the decedent already sold to the oppositors the property to be inherited by Sumilang. Court held that the Inquirty into the intrinsic validity of the will (that there was already a sale of the property) is not governed by probate proceedings, citing Nuguid vs. Nuguid. Facts: -Hilarion Ramagosa died -he allegedly made a will in Tagalog, making Mariano Sumilang the sole heir of Hilarion -2 sets of oppositors opposed the petition for probate, alleging that it was made under duress and was not intended to be the will of the decedent: 1. Instead of Mariano, they were entitled to inherit the estate of the decedent 2. Next of kin, just prayed for the disallowance of the will

-the oppositors moved for the dismissal of the will: NO JURISDICTION BECAUSE THE WILL WAS ALLEGEDLY REVOKED ALREADY through the sale to some of the oppositors of the properties covered by the estate of the deceased which is sought to be disposed …at time of decedent's death, the titles to the properties were already transferred to oppositors >>>DENIED! …the allegations goes into the intrinsic validity of the will… WON the court properly dismissed the motion to dismiss (WON the court properly ignored grounds for dismissal which goes to the intrinsic validity of the will)? YES 1. Should focus on EXTRINSIC VALIDITY OF THE WILL -what are the extrinsic validity of the will (NUGUID v. NUGUID):  Testator's testamentary capacity  Compliance w/ formal requisites or solemnities prescribed by law …if INTRINSIC VALIDITY: premature  Efficacy of the provisions of the will  Legality of any device or legacy WON REVOCATION MATTERS? NO -Probate is one thing; validity of the testamentary provisions is another. PROBATE

VALIDITY OF TESTAMENTARY PROVISIONS

Decides *execution of the document *testamentary capacity of testator

Decides *descent *distribution of estate

WON they could oppose the proceedings, they being not w/n the 5th degree as provided by law? NO. should be interested parties to be allowed to intervene PILIPINAS SHELL PETROLEUM CORPORATION VS. DUMLAO Short Summary: Interest of Petitioner was assailed as supposed to be part of the jurisdictional facts to be indicated in the application for probate. Court held that interest of a party/witness involves the intrinsic validity of the will, and is not covered by probate, need not be alleged. Interest of the Petitioner who was sought to be made the administrator is irrelevant as to jurisdictional facts. Facts -Ricardo Gonzales, an employee of Shell Phlippines, filed a petition for a Letter of Administration for the Intestate Estate of Regino Canonoy -The heirs of Regino Canonoy filed an opposition, saying that Gonzales was a complete stranger to the intestate estate:  Not an heir  Not a creditor  Not a resident of Butuan, where most of the properties of the estate are located  He is an employee of Shell Philippines, one of the creditors of the estate so he would not be able to properly and effectively protect the interest of the estate …they also prayed that one of the decedent's sons be appointed as administrator (in accordance with the preference in R78.6) ---malabo ung proceedings sa gitna. I thought the suggested person to be the administrator was indeed appointed, and Shell made their claim.

...However, there's also a motion to dismiss filed by the Canonoy administrator based on the lack of jurisdiction of the court - that Gonzales was not the "interested person" contemplated in R79.2. court granted this motion to dismiss and apparently this is the reason why Pilipinas Shell is appealing. The latter set of facts also appears to be the main topic of this case. WON the petition was correctly dismissed on the ground that Gonzales was not an "interested person"? WON interest in the probate proceedings is a jurisdictional requirement? 1. What does R79.2 contain: Contents of the petition for letters of administration A. Jurisdictional facts:  Death of testator  Residence of the testator at the time of death  If resident of a foreign country: that he left his estate in the province where the court sits >>>the following facts were sufficiently showed in Gonzales' petition. >>>the allegation that a petitioner for letters of administration should be an INTERESTED PERSON is not a jurisdictional fact which is required to be shown for the court to acquire jurisdiction 2. Wrong ground: should have filed MTD based on lack of legal capacity to sue (as the provision requires that the petition for letters of administration be filed by an "interested person") -GR: Saguinsin v. Lindayag: INTERESTED PERSON DEFINED: one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor; this interest must be material and direct, not merely indirect or contingent. -X: if barred by waiver or estoppel …here, there's waiver of ground: the respondents filed an Opposition instead of a motion to dismiss, merely opposing the issuance of letters of administration in favor of Gonzales who was a stranger to the estate. Failure to raise the objection timely is a waiver, in accordance w/ R15.8 …lack of capacity to sue, however, cannot be used as an affirmative defense WON the court acquired jurisdiction over them? YES

FROM SIR B, WITH LVE  

Probate Proceedings should also include Testamentary Capacity of the Testator (understanding of the nature of acts, understands for whom the property is being given, the object of the bounty) Who would you choose to be a witness to the execution of your will? >DOCTOR: to attest to the soundness of your mind >LAWYER: to guide you in the formalities required by law

-the administrator (see, Bonifacio Canonoy was indeed made an administrator!) and the other respondents invoked jurisdiction by praying for relies and remedies in their favor in their oppositions -court acquired jurisdiction over them by voluntary appearance D-4. SPECIAL ADMINIS TRATOR RULE 8 0 SECTI ONS 1 -3 Section 1. Appointment of special administrator. -

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When there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will, the court may appoint a special administrator to take possession and charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed. Section 2. Powers and duties of special adminsitrator. Such special administrator shall take possession and charge of the goods, chattels, rights, credits, and estate of the deceased and preserve the same for the executors or administrator afterwards appointed, and for that purpose may commence and maintain suits as administrator. He may sell only such …perishable …and other property as the court orders sold. A special administrator shall not be liable to pay any debts of the deceased unless so ordered by the court. Section 3. When powers of special administrator cease. Transfer of effects. Pending suits. When letters testamentary or of administration are granted on the estate of the deceased, the powers of the special administrator shall cease, and he shall forthwith deliver to the executor or administrator the …goods, …chattels, …money, …and estate of the deceased in his hands. The executor or administrator may prosecute to final judgment suits commenced by such special administrator. DE GUZMAN V. ANGELES Short summary: This is a dispute between the surviving spouse (appointed special adminsitratrix) and the father in law as to the properties allegedly belonging to the estate of the deceased but was being claimed by, and was in the possession of, the father in law. Father in law now assails the appointment of daughter in law as special administratrix, as well as the order for writ of possession, even before notice was given to him. Court held that NOTICE is needed, even for the appointment of a special administrator, as it is a position of trust and confidence which needs notice (to inform interested parties) and hearing where the petitioner who seeks to be appointed proves his qualifications, and the oppositors contests it. Facts: -Manolito de Guzman died intestate. -Elaine de Guzman (surviving spouse) filed petition for settlement of intestate estate of the decedent before RTC Makati, alleging the following: 24 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

Manolito died in Makati, as a resident of Makati Left properties which were acquired after the marriage of Manolito and Elaine (thus Conjugal property) Possible creditors Copulsory heirs: Elaine (SS), 2 minor Children Manolito died intestate (w/o a will) Elaine most qualified to be the administrator + filed motion for writ of possession over 5 of Manolito's vehicles (who were in the possession of Manolito's father - Pedro de Guzman - the petitioner): granted! -Petitioner made appearance, sought for extension to file opposition to the Motion for writ of possession -Elaine filed EX-Parte Motion to be Appoint as the Special Administatrix. Motion set for hearing, all parties directed to be notified (BUT NO NOTICE GIVEN TO THE PETITIONER!!!) - RTC granted: * made Elaine the special administratrix * Granted motion for assistance of some military men and/or policemen to assist Elaine in preserving the estate of Manolito -Elaine tried to enforce order. Pedro de Guzman (petitioner) resisted, resulting in a "near shoot-out between members of the Makati Police and CAPCOM soldiers which was diffused by the arrival of Mayor Binay and the agreement that the bulldozer sought to be taken be placed in Mayor Binay's custody while the parties sought for clarification -CLARIFICATION: the order only covers properties of the estate, not those claimed by 3P -Pedro then filed motion, giving list of properties he claimed he owns; also filed this petition to annul the orders given WON a probate court may appoint a special administratrix and issue a writ of possession of alleged properties of a decedent for the preservation of the estate in a petition for the 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 section 3, Rule 79 of the Revised Rules of Court? DISTINGUISH BETWEEN JURISDICTION OF THE PROBATE COURT OVER THE PROCEEDINGS vs. JURISDICTION OVER THE PERSONS WHO ARE INTERESTED IN THE SETTLEMENT OF THE ESTATE The probate court, in accordance w/ R79.3, must first cause notice through publication of petition! -purpose: bring all interested persons w/n the court's jurisdiction so that the judgment therein becomes binding on all the world -if no notice: proceeding for settlement of estate is void and should be annulled. OR else, may deprive a person of his property w/o due process of law The court orders affecting other persons subsequent to the petition filed are void and subject to annulment -here: no notice before the court: acted on the motion of Elaine to be the Special Administratrix Issued a writ of possession of alleged properties of the deceased person Granted the motion for assistance to preserve the estate of Manolito -if notice was given, then the creditors and other interested persons could have participated in the proceedings, especially because Elaine immediately filed a motion to have herself appointed as administratrix; Pedro appears to be the biggest creditor of the estate who has the largest interest in it

Special administrator: representative of decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed.

---the properties are in the custody of the oppositors who claim they own the property so no need to appoint special administrator to take care of the properties where there is a considerable delay

WON the orders could have been issued w/o notice: ONLY if there's urgency -Here: no necessity/urgency for the issuance of the said orders w/o first giving notice to interested persons; no avoidable delay -emergency situations threatening the dissipation of the assets of an estate justify a court's immediately taking some kind of temporary action even without the required notice

WON a special administrator should have been issued to administer the properties allegedly of the estate when the oppositors who claim ownership over the property are in possession of the same? YES!!! *Look at R80.1* -under R80.1, the probate court may appoint a special administrator when: There is delay in granting letters testamentary/administration Irrelevant whatever caused the delay For period: until the cause of delay is decided and executors or administrators are appointed -the appointment of a special administrator lies in the DISCRETION OF THE COURT - which must be sound: not whimsical, not contrary to reason, justice, equity or legal principle *What types of delays usually considered/sufficient grounds for granting special administration: Where a contest as to the will is being carried on in the same or in another court Where there is an appeal pending as to the proceeding on the removal of an executor/administrator Where the parties cannot agree among themselves When general administration cannot be immediately granted *reasons why appoint a special administrator: *"The reason for the practice of appointing a special administrator rests in the fact that estates of decedents frequently become involved in protracted litigation, thereby being exposed to great waste and losses if there is no authorized agent to collect the debts and preserve the assets in the interim. The occasion for such an appointment usually arises where, for some cause, such as a pendency of a suit concerning the proof of the will, regular administration is delayed. No temporary administration can be granted where there is an executor in being capable of acting, however." *"Principal object of appointment of temporary administrator is to preserve estate until it can pass into hands of person fully authorized to administer it for benefit of creditors and heirs." 23

So GR: give notice X: emergency situations Why give notice even for appointment of special administrator: "The position of special administrator, by the very nature of the powers granted thereby, is one of trust and confidence. It is a fiduciary position and, therefore, requires a comprehensive determination of the suitability of the applicant to such position. Hence, under Philippine jurisprudence, it has been settled that the same fundamental and legal principles governing the choice of a regular administrator should be taken in choosing the special administrator (Francisco, Vol. VB, page 46 citing the cases of Ozaeta v. Pecson, Ibid. and Roxas v. Pecson, Ibid.) "In order to fully and correctly ascertain the suitability of the applicant to the trust, a hearing is obviously necessary wherein the applicant can prove his qualifications and at the same time affording oppositors, given notice of such hearing and application, the opportunity to oppose or contest such application. ON inhibition of judge: Judge voluntarily inhibited himself so moot DE GUZMAN VS. GUADIZ Short summary: the alleged sole universal heir of a will filed a petition for letters testamentary, he also being appointed as the executor in the will. Persons were claiming that they owned the properties through a donation made by the decedent during his lifetime, and at the same time are in possession of the properties, opposed. Petitioner filed for determination of the validity of the donation, at the same time filed for petition to be appointed as the special administrator which the lower court denied since the oppositors were already administering the property. SC held that there are sufficient grounds for appointing a special administrator, as there was delay in the probate of the will and the appointment of the executor. Should distinguish between neutral possession and partisan possession Facts: -Feliciano de Guzman filed petition for probate of a will alleged to have been executed by Catalina Bajacan -the will instituted Feliciano as Catalina's sole and universal heir -the will also named Feliciano as the executor -Respondents filed MTD/Opposition: All properties of Catalina were now owned by them y virtue of a Donation inter vivos executed by Arcadia and Catalina Bajacan in their favor -decision on motion to dismiss deferred until presentation of evidence -Feliciano filed a motion to be appointed as the special administrator (delay in the probate of the will and appointment of executor if MTD unresolved) -that the property of the decedent consists of rice land which would yield P50k worth of rice twice a year so somebody must represent the estate pending the probate of the will RTC: denied the motion for appointment of a special administrator

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Here, what are the causes of delay: The oppositors claimed that they own the properties of the estate through a donation allegedly made by the decedent. The petitioner thus filed a civil case for the annulment of the deed of donation pending the hearing of the probate of the will. The same judge was the judge in the civil case, and ruled that petitioner had no personality to sue, the will from which he claims interest in the property not yet being probated The hearings for the probate of the will has been postponed several times And upon filing of this petition, the judge postponed the hearing of the probate of the will pending the outcome of this case ON THE POSSESSION OF THE OPPOSITORS OF THE PROPERTY IN QUESTION: should have differentiated between partisan possession vs. neutral possession -when appointed, a special administrator is regarded, not as a representative of the agent of the parties suggesting the appointment, but as the administrator in charge of the estate, an officer of the court. REYNOSO V. SANTIAGO Short summary: Initially an intestate proceeding, the father and son now wants a testate proceeding to be held for the probate of the will of the decedent, it being held by the CA as a valid will. They also wanted father to be appointed as regular administrator, and the special administrator to render an accounting. Court held that it is w/n the discretion of the judge to decide WON a probate proceeding would be initiated separately or in the same proceedings and as to the appointment of an administrator, a regular administrator should be appointed but not necessarily the father.

Facts: -Salvadora Obispo died 1st proceeding (SP no. 2914): Leoncio Cadiz and other heirs of Salvadora applied for the administration of the property of the deceased - they alleged that the decedent died intestate >>>OPPOSITION by the surviving spouse (Victorio) and the eldest son (Juan): there's a will, then counterpetitioned for the probate of the will. TC: rejected the opposition: the will was forged! >>>Appointed Meliton Palabrica as Special Administrator CA: will was authentic and drawn w/ all the formalities of law; appoint albacea -in accordance with the CA decision, the father and son tandem filed 2 petitions: Petition to order Special administrator Meliton Palabrica to turn over the properties of the deceased Turn over the proceeds of the products on the properties to Victorio, the surviving spouse To render an accounting w/n reasonable time …and for the closing of the special proceedings for the Intestate estate Petition for probate of the testate estate of deceased Salvadora Obispo …prayed that Victorio be appointed as executor of Salvadora's estate …also contained prayer in the 1st petition -the 2 petitions were both heard by the same judge, but decided separately. The action on the petition should be w/held for the time being, because of the pendency on appeal of a case in which the special administrator is plaintiff and Juan and Victorio are defendants and appellants (WON the coconut land is conjugal property or exclusive property of the husband). Thus, in accordance w/R87.8, the surviving spouse cannot be appointed as administrator because he has a claim against the estate. Not necessary to open another expediente. Could have the probate of the testate estate in the same proceeding WON a separate special proceeding for the probate of the will of Salvadora necessary? It depends on the judge. -Whether the intestate proceeding already commenced should be discontinued and a new proceeding under a separate number and title should be constituted is entirely a matter of form and lies within the sound discretion of the court. In no manner does it prejudice the substantial rights of any heirs or creditors. Amor propio is perhaps the only thing is at stake on this phase of the controversy. WON a regular administrator should be appointed by the court? YES, but not automatically the husband. The lower court would determine it based on the rules -since the CA already found the will valid and it already decreed the appointment of an albacea, a regular administrator should now be already appointed. -appointment of a special administrator 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 -The appointment of a regular administrator is necessary for the prompt settlement and distribution of the estate. There are important duties devolving on a regular administrator which a special administrator can not perform, and there are many actions to be taken by the court which could not be accomplished before a regular administrator is appointed. -WHO SHOULD BE APPOINTED AS ADMINISTRATOR? While surviving spouse is entitled to preference (R79.6), circumstances might warrant his rejection and the appointment of someone else. It is proper to

command the court below to appoint a regular administrator, but it is not proper to tell it whom to appoint. D-5. BOND OF EXECUTO RS AN D ADMINISTRATOR S RULE 81 Section 1. Bond to be given issuance of letters. Amount. Conditions. Before an executor or administrator enters upon the execution of his trust, and letters testamentary or administration issue, he shall give a bond, in such sum as the court directs, conditioned as follows: (a) To make and return to the court, within three (3) months, a true and complete inventory of all ...goods, ...chattels, ...rights, ...credits, ...and estate of the deceased which shall come to his possession or knowledge or to the possession of any other person for him; (b) To administer according to these rules, and, if an executor, according to the will of the testator, all ...goods, ...chattels, ...rights, ...credits, ...and estate which shall at any time come to his possession or to the possession of any other person for him, and from the proceeds to pay and discharge all ...debts, ...legacies, ...and charges on the same, ...or such dividends thereon as shall be decreed by the court; (c) To render a true and just account of his administration to the court within one (1) years, and at any other time ...when required by the court; (d) To perform all orders of the court by him to be performed. Section 2. Bond of executor where directed in will. When further bond required. -

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If the testator in his will directs that the executors ...serve without bond, ...or with only his individual bond, he may be allowed by the court to give bond ...in such sum ...and with such surety as the court approves conditioned only to pay the debts of the testator; but the court may require of the executor a further bond in case of ...a change in his circumstance, ...or for other sufficient case, with the conditions named in the last preceding section. Section 3. Bonds of joint executors and administrators. When two or more persons are appointed executors or administrators the court may take ...a separate bond from each, ...or a joint bond from all. Section 4. Bond of special administrator. A special administrator before entering upon the duties of his trust shall give a bond, in such sum as the court directs, conditioned that ...he will make and return a true inventory of the ...goods, ...chattels, ...rights, ...credits, …and estate of the deceased which come to his possession or knowledge, ...and that he will truly account for such …as are received by him …when required by the court, ….and will deliver the same to the person appointed executor or administrator, or to such other person as may be authorized to receive them. LUZON SURETY VS. QUEBAR Short summary: Surety company entered into an indemnity agreements wherein they agreed to become sureties to 2 administrator's bond in favor of Pastor Quebar, and the latter agreed to pay them. Quebar submitted a project of partition and accounts which was approved by the court, so Quebar argues that the bond should now be cancelled (thus, not paying anything more to the surety). Surety sues the administrator for amounts due to it. Court held that the administrators bond still exists, coterminous with the probate proceedings. And even if there's already a project of partition, as long as not all of the

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debts are paid, the administrator's job is not yet done, thus, the bond still subsists and the administrator is still liable to pay the surety. Facts: -Luzon Surety Company entered into an indemnity agreement w/ Pastor Quebar: Luzon Surety Company would issue 2 administrator's bond, P15k each, for 2 Special proceedings Quebar and Kilayco would pay Luzon Surety P300 in advance as premium for every 12 months….or renewed by them Quebar and Kilayco also agrees to indemnify Luzon Surety for all damages, losses….expenses -Quebar paid for the first year, P304.50 each -Quebar submitted a Project Partition and Accounts >>>CFI approved it -when Luzon Surety demanded payment of premiums and documentary stamps for the years after the first. -Quebar and Kilayco filed a MOTION FOR CANCELLATION AND/OR REDUCTION OF EXECUTOR'S BOND: heirs already received their shares (so tapos na dapat trabaho nila, di na kelangan ng bond) >>>CFI: cancelled bonds. - As a result, Kilayco and Quebar refused to pay the amount demanded by Luzon Surety (which amounted to almost P2.5k each ~ P5k) -Luzon Surety filed for collection. CFI: allowed Luzon Surety to recover: defendants liable under terms of the Indemnity Agreements, even if they did not renew it, because they were still in force and effect until cancelled by Court order. Quebar and Kilayco appealed CA: referred case to SC, questions of law involved HELD: With the payment of the premium for the first year, the surety already assumed the risk involved, that is, in case defendant-appellant Pastor T. Quebrar defaults in his administrative duties. The surety became liable under the bond for the faithful administration of the estate by the administrator/executor. Hence, for as long as defendant-appellant Pastor T. Quebrar was administrator of the estates, the bond was held liable and inevitably, the plaintiff-appellee's liability subsists since the liability of the sureties is co-extensive with that of the administrator HOW TO INTERPRET LIABILITY FOR THE BOND: Look on the language of the bond itself -HERE: the bond is practically the same as R81.1, ROC -The statute which requires the giving of a bond becomes a part of the bond and imparts into the bond any condition prescribed by statute -PURPOSE OF BOND: indemnify creditors, heirs, legatees and the estate, conditioned upon the faithful performance of the administrator's trust - the surety is then liable under the administrator's bond, for as long as the administrator has duties to do as such administrator/executor. Since the liability of the sureties is co-extensive with that of the administrator and embraces the performance of every duty he is called upon to perform in the course of administration (Deobold vs. Oppermann, 111 NY 531, 19 NE 94), it follows that the administrator is still duty bound to respect the indemnity agreements entered into by him in consideration of the suretyship. -EFFECT OF APROVAL OF PROJECT OF PARTITION: NONE ...liquidation: the determination of all the assets of the estate and payment of all the debts and expenses - here, not all expenses were paid yet …project partition: estate may be partitioned even before the termination of the administration proceedings. Even w/ the approval of the partition, the CFI could still exercise jurisidction over the administration proceedings WHEN SURETY LIABLE: as long as probate proceedings are ongoing

The sureties of an administration bond are liable only as a rule, for matters occurring during the term covered by the bond. And the term of a bond does not usually expire until the administration has been closed and terminated in the manner directed by law -As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability (Deobold vs. Oppermann, supra) notwithstanding the non-renewal of the bond by the defendants-appellants. CAN'T INTERPRET THE TWO BONDS SEPARATELY: the terms of the bond makes them jointly and severally liable -so 1 can't claim that the bond and the indemnity agreement failed to have effect since… …approval of the project partition …nonpayment of stated premiums WON PAYMENT OF PREMIUMS AND DST ARE CONDITION PRECEDENT TO EFFECTIVITY OF BONDS? NO -no provision or condition in the bond to the effect that it will terminate at the end of the first year if the premium for continuation thereafter is not paid. And there is no clause by which its obligation is avoided or even suspended by the failure of the obligee to pay an annual premium -Even on a failure to pay an annual premium, the contract ran on until affirmative action was taken to avoid it. The obligation of the bond was therefore continuous -The payment of the annual premium is to be enforced as part of the consideration, and not as a condition -"the one-year period mentioned therein refers not to the duration or lifetime of the bond, but merely to the payment of premiums, and, consequently, does not affect at all the effectivity or efficacy of such bond. But such non-payment alone of the premiums for the succeeding years . . . does not necessarily extinguish or terminate the effectivity of the counter-bond in the absence of an express stipulation in the contract making such non-payment of premiums a cause for the extinguishment or termination of the undertaking. . . . There is no necessity for an extension or renewal of the agreement because by specific provision thereof, the duration of the counter-bond was made dependent upon the existence of the original bond." CORPORATE SURETY: Suretyship became regarded as insurance -no need to interpret the contract because NO AMBIGUITY RODRIGUEZ V. SILVA Short summary: The intestate estate of the decedent sues one of the former administrator for allegedly excessive compensation for his services and for allegedly invalidly having the administrator's bond cancelled when he had a liability during his service as administrator. As to the allegedly excessive compensation, Court held that it is w/n the discretion of the court to raise the compensation if the estate is big and there's difficulty in managing it, and it was shown that the efforts exerted by the administrator was commensurate to the compensation given. As to the bond, it was held that if ever he was liable for misappropriating a land allegedly of the estate, the bond would not cover it but it would instead be a personal liability of the administrator. Facts: -Pablo M. Silva, together with Victorio Rodriguez, were appointed as administrators of the intestate estate of HONOFRE LEYSON. -through Silva's initiative: The holdings of the estate was earning P1,300 from P900 a month The 2 parcels of land located in Rizal were paid for in full, corresponding certificates of title secured He was instrumental in gathering decedent's personal effects He filed a motion whereby Margarita Leyson Laurente (one of the appellants) was NOT authorized to w/draw advance payment of her share of the inheritance, thereby able to stop an improvident disbursement of a substantial amount w/o having to employ legal help at an additional expense

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-Silva filed a motion to resign. COURT: Cancelled his bond Authorized him to collect P600 (note: this was 1952) as administrator's fees -Appellants contested the order: A few months before the order granting the resignation of Silva, he was able to cancel TCT of Cubao property in the name of the decedent in his name, in a doubtful manner The P600 charge to the estate is unreasonable, and granting that it is reasonable, it should be apportioned between the 2 administrators, and the P100 already received by Silva should be deducted WON COURT MAY FIX AN ADMINISTRATOR'S FEE IN EXCESS OF THE FEES PRESCRIBED IN R86.7: SEC. 7. What expenses and fees allowed executor or administrator. Not to charge for services as attorney. Compensation provided by will controls unless renounced. An executor or administrator shall be allowed the necessary expenses in the care, management, and settlement of the estate, and for his services, four pesos per day for the time actually and necessarily employed, or a commission upon the value of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts, expenses, legacies, or distributive shares, or by delivery to heirs or devises, of two per centum of the first five thousand pesos of such value, one per centum of so much of such value as exceeds five thousand pesos and does not exceed thirty thousand pesos, one-half per centum of so much of such value as exceeds thirty thousand pesos and does not exceed one hundred thousand pesos, and onequarter per centum of so much of such value as exceeds one hundred thousand pesos. But in any special case, where the estate is large, and the settlement has been attended with great difficulty, and has required a high degree of capacity on the part of the executor or administrator, a greater sum may be allowed. If objection to the fees allowed be taken, the allowance may be reexamined on appeal. If there are two or more executors or administrators, the compensation shall be apportioned among them by the court according to the services actually rendered by them respectively. When the executor or administrator is an attorney he shall not charge against the estate any professional fees for legal services rendered by him. When the deceased by will makes some other provision for the compensation of his executor, that provision shall be a full satisfaction for his services unless by a written instrument filed in the court he renounces all claim to the compensation provided by the will -Court can grant greater sum: *In special cases …where estate is large …and settlement attended w/ great difficulty …and has required a high degree of capacity on part of executor -it is largely in the discretion of the probate court HERE: Appraised value of the estate is P22,116.46 The efforts of Silva mentioned in the facts merit his work *On the basis of the services thus specified, coupled with the fact that the appellee worked as coadministrator for about two years, we do not think that the probate court committed an abuse of discretion in granting him P600.00 or P700.00 as fee independent of the fee that might be allowed the other administrator.

WON CANCELLATION OF THE BOND WAS PROPER? Appellants argue that De Silva was guilty of misappropriation/ acts of commission or ommission for which bond could be held liable NO. The alleged illegal transfer was argued by De Silva as being sold to him even before he was administrator of the estate - it was in his possession before he became administrator …land did not come to his hands pursuance or in the course of administration …it was not included in the inventory prepared by De Silva If ever he had no valid title, are not chargeable for it on the bond. De Silva's liability is personal and exclusive of the sureties who are the parties mostly affected by the third assignment of error. D-6. REVOCATION OF A DMINIS TRATION, DEATH , RESIGNATION, AND R EMOVAL OF EXECUTORS OR AD MINIS TRATORS RULE 82 Section 1. Administration revoked if will discovered. Proceedings thereupon. If after letters of administration have been granted on the estate of a decedent as if he had died intestate, his will is proved and allowed by the court, the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith ...surrender the letters to the court, …and render his account with such time as the court directs. Proceeding for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided. Section 2. Court may be remove or accept resignation of executor or administrator. Proceeding upon death, resignation, or removal. If an executor or administrator ...neglects to render his account ...and settle the estate according to law, ...or to perform an order or judgment of the court, or a duty expressly provided by these rules, ...or absconds, ...or becomes insane, ...or otherwise incapable or insuitable to discharge the trust, the court may remove him, or in its discretion, may permit him to resign. When an executor or administrator ...dies, ...resign, ...or is removed the remaining executor or administrator may administer the the trust alone, unless the court grants letters to someone to act with him. If there is no remaining executor or administrator, 29 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

administration may be to any suitable person. Section 3. Acts before revocation, resignation, or removal to be valid. The lawful acts of an executor or administrator before the revocation ...of his letters testamentary or ...of administration, or before his resignation or removal, shall have the like validity as if there had been no such ...revocation, ...resignation, ...or removal. Section 4. Powers of new executor or administrator. Renewal of license to sell real estate. The person to whom letters testamentary or of administration are granted …after the revocation of former letters, …or the death, …resignation, …or removal of a former executor or administrator, shall have the like powers ...to collect ...and settle the estate not administered that the former executor or administrator had, ...and may prosecute or defend actions commenced by or against the former executor or administrator, ...and have execution on judgments recovered in the name of such former executor or administrator. An authority granted by the court to the former executor or administrator for the sale or mortgage of real estate may be renewed in favor of such person without further notice or hearing. URIARTE V. CFI Short summary: alleged natural child of the deceased filed petition for settlement of INTESTATE estate of Don Juan Uriarte y Goite in Negros Occidental Court. PNB was even appointed as special administrator, but PNB failed to qualified. MTD filed by nephew of Don Juan, alleging that while he was in Spain, the deceased made a will AND that petitioner had doubtful interest (proceeding for his recognition as a natural child not yet done). Pending this, the nephews instituted a petition for probate of the will of Don Juan in Manila. Alleged natural son opposed, contending that Negros courts already had exclusive jurisdiction of the case.But Negros court dismissed the special proceeding, and the Manila court proceeded to probate the will. Petitioner contested it. Court held that since the decedent was a non-resident, both Manila and Negros courts may be proper venues for the proceedings. But since probate proceedings enjoy priority over intestate proceedings, action by Manila court proper. Even if the venue was improper, petitioner considered to have waived the defect by laches. Lastly, the court held that if ever recognized as the natural child of the decedent, he could opt to intervene in the probate proceedings, or to have it opened if already finished. Facts:

-Don Juan Uriarte y Goite died in Spain, left properties both in Manila and Negros -The alleged natural son of Don Juan, VICENTE URIARTE, filed petition for settlement of INTESTATE ESTATE of Don Juan before the Negros Occidental court. Note that during that time, the proceedings for compulsory acknowledgment as the natural son of Don Juan was still pending -PNB also was appointed as special administrator of the estate, but PNB failed to qualify -OPPOSITION TO PETITION by HIGINIO URIARTE (nephew of Don Juan): Don Juan left a will, executed in Spain, duly authenticated - submitted before Negros court ViCENTE's capacity and interest are questionable -JUAN URIARTE ZAMACONA (di ko alam how related) commenced SPECPRO for PROBATE OF LAST WILL OF DON JUAN before Manila courts + MTD in Negros Courts Since there's a will, no need for intestate proceedings before Negros Courts Vicente had no legal personality to sue >>>OPPOSED by VICENTE: Negros Courts first took cognizance, it had acquired exclusive jurisdiction over the same NEGROS COURT: DISMISS proceedings before it -VICENTE filed OMNIBUS MOTION in Manila Court for leave to intervene + dismissal of petition for probate + annulment of proceedings - DENIED -Manila court admitted to probate the last will WON NEGROS COURT ERRED IN DISMISSING THE INTESTATE PROCEEDINGS BEFORE IT? NO. Decedent is an inhabitant of a foreign country (Spain) during the time of his death, so the courts in the province s where he left property may take cognizance of settlement of his estate -here, decedent left properties both in Manila and in Negros Even if Negros court first took cognizance of the case, still has to give way to Manila court special proceeding intended to effect the distribution of the estate of a deceased person, whether in accordance with the law on intestate succession or in accordance with his will, is a "probate matter" or a proceeding for the settlement of his estate. BUT testate proceedings, for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose. So even pending Intestate proceedings, if it is found it hat the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage 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. If will rejected or disproved, proceedings shall continue as intestacy VICENTE already waived procedural defect of VENUE IMPROPERLY LAID -He knew that there was a will when a MTD was filed in Negros court, so he should have filed a MTD in Manila court earlier: Manila court already *appointed an administrator *admitted the will to probate more than 5 months earlier -court would not annul proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the net result would be to have the same proceedings repeated in some other court of similar jurisdiction As to interest of Vicente in the case -two alternatives for an acknowledged natural child to prove his status and interest in the estate of the deceased parent: (1) to intervene in the probate proceeding if it is still open; and (2) to ask for its reopening if it has already been closed. ROBERTS V. LEONIDAS

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Short summary: Intestate proceedings already commenced and was about to be closed (there already been a project of partition) when testate proceedings initiated. The decedent left 2 wills which the petitioners for the intestate proceedings knew. Court held that probate proceedings are proper and intestate proceedings should be consolidated with the testate proceedings. Facts: -Edward Grimm died in Makati Med -Heirs 1st marriage (ended in divorce) children: Juanita Grimm Morris Ethel Grimm Roberts (McFadden) 2nd marriage 2nd wife MAXINE Son Edward Miller Grimm II (Pete) Daughter Linda Grimm -he left 2 wills: 1 for his properties in RP (conjugal property w/ 2nd wife), the other for his estate outside RP wherein the daughters in the 1st marriage were intentionally not given anything -43 days after decedent's death, ETHEL filed Intestate proceedings, was named special administrator >>>Maxine (2nd wife/stepmom) filed OPPOSITION + MTD: there's Utah proceedings for the probate of will Prayed that she be appointed special administratrix >>>w/drawn by Maxine INTESTATE COURT: since the parties wanted it, Maxine, Pete and Ethel were all appointed as joint administrators (Intestate court already knew there was a will but did not do anything about it) -Administrators submitted an inventory -Palawan Pearl Project (business owned by deceased) sold to Makiling Management Co (owned by Ethel and husband and lawyer), acquiesced by Linda (daughter in 2nd marriage) and Juanita (other daughter in 1st marriage) -PROJECT PARTITION APPROVED BY INTESTATE COURT -Ethel filed MOTION for accounting so that Estate properties can be partitioned among heirs and intestate estate be closed. TESTATE COURT: filed 2 years after intestate proceedings -sought to set aside the 1979 partition approved by intestate court -Ethel filed MTD - denied for lack of merit WON THE TESTATE COURT SHOULD HAVE DISMISSED THE PETITION FOR PROBATE? NO -A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either real or personal property unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court). -The probate of the will is mandatory. It is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases. -so dismissed Ethel's petition for certiorari ADVINCULA V. TEODORO (1956) Short summary: brothers of the deceased wanted to oust surviving spouse/brother in law as administrator of their sister's estate, after ss/bil already appointed as such and after intestate proceedings already commenced, by showing will allegedly appointing one of them as executor. Court

held that until the will is probated, the provision in the will making one of them the executor of the estate is not effective. Facts -Josefa Lacson Advincula allegedly died intestate and so her husband Emilio initiated specpro for the settlement of her intestate estate and was appointed regular administrator. -After such, brothers of deceased submitted an alleged will of Josefa and petitioned for the probate of the said will >>>Emilio contested alleging that the will was a forgery. -Enrique Lacson, one of the brothers, filed motion that he be appointed administrator of the estate, he being appointed the executor in the will, and that petitioner is "incompetent, incapable and unsuitable to the discharge of the trust, he being foreign to the estate, and without changing or removing him as such would be disastrous to the estate and to the heirs named in the will of the decedent" >>>Lawyers of Emilio filed OPPOSITION to the motion, but on the date of hearing: the main counsel of Emilio was not present, the motion for postponement of the hearing was denied Enrique Lacson was appointed as administrator, they're allegations as to competence of Emilio "wellfounded" WON THE WRIT OF CERTIORARI FILED BY EMILIO FOR GADALEJ SHOULD BE GRANTED? YES -Although Enrique was appointed in the alleged will as executor, it is not sufficient ground to annul Emilio's appointment as administrator as the provision in the will cannot be enforced until the said document has been allowed probate [R79.4: "When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trusts, and gives bond as required by these rules."] -the discovery of a document purporting to be the last will and testament of a deceased, after the appointment of an administrator of the estate of the latter, upon the assumption that he or she had died intestate, does not ipso facto nullify the letters of administration already issued or even authorize the revocation thereof, until the alleged will has been "proved and allowed by the court." R83.1: "If after letters of administration have been granted on the estate of a decedent as if he had died intestate, his will is proved and allowed by the court, the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith surrender the letters to the court, end render his account within such time as the court directs. Proceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided." -ON ALLEGATION IN THE MOTION OF ENRIQUE LACSON: It is untenable from the viewpoint of logic and experience, because a stranger to deceased may be competent, capable and fit to administer her estate, in much the same as a member of her immediate family could be incompetent, incapable and unfit to do so. …he is prima facie entitled to one-half of all property subject to the authority of the administrator of said estate, apart from his share of the other half thereof, as heir of the deceased, for "all property of the marriage is presumed to belong to the conjugal partnership" - of which he is its administrator (Article 165, Civil Code of the Philippines) - "unless it be proved that it pertains exclusively to the husband or to the wife" (See Articles 160 and 185, Civil Code of the Philippines) ...Advincula has not been found guilty of any specific act or omission constituting one of the legal grounds, enumerated in Rule 83, section 2, of the Rules of Court, for the removal of an executor or administrator. VIUDA DE BACALING V. LAGUDA Short summary: The lessees of the land were sought to be evicted but since they put up a residential house on the property, they refused to do so. The lessee, who was also the judicial administratrix of her husband co-lesee, entered into an amicable settlement w/ the owner of the property wherein she

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agreed to leave the property. She was however replaced as judicial administratrix so she now claims that the amicable settlement cannot be enforced against her. Court held that her acts bound the next administrator of the estate, thus, they should leave the property. Facts: -Hector Laguda owned a residential lot in La Paz, Iloilo -He allowed Dr. Ramon Bacaling and her wife Nelita to build a residential house on a portion of the lot, upon payment of monthly rentals -since the spouses were unable to pay the rentals, an action for ejectment was filed against Nelita (Dr. Ramon already died) as the judicial administratrix of the estate of her husband -suffering many legal setbacks and unable to have the action for ejectment dismissed, she entered (as the judicial administratrix) an compromise agreement w/ Hector where she agreed to pay the accrued rents and vacate the premises and demolish the house. -Compromise agreement approved by the courts -Nelia refused to comply with the agreement -Hector moved for execution of the compromise agreement -pending this, Nelia was discharged as the judicial administrator of her husband's estate so she was claiming in a motion to quash that the settlement was not binding on the new administrator - denied -Alias writ of execution issued by court -to stop the demolition of the house, Nelia filed certiorari proceedings w/ TRO before SC WON ACTS OF NELIA AS JUDICIAL ADMINISTRATRIX PRIOR TO HER DISCHARGE OR REMOVAL ARE VALID AND BINDING UPON HER SUCCESSOR? YES -Under Section 3, Rule 82 of the Rules of Court, petitioner's lawful acts before the revocation of her letters of administration or before her removal shall have the same validity as if there was no such revocation or removal. It is elementary that the effect of revocation of letters testamentary or of administration is to terminate the authority of the executor or administrator, but the acts of the executor or administrator, done in good faith prior to the revocation of the letters, will be protected, and a similar protection will be extended to rights acquired under a previous grant of administration. WON NELIA WAS A BUILDER IN GF? NO -Lessees, like petitioner, are not possessors in good faith, because they knew that their occupancy of the premises continues only during the life of the lease, and they cannot as a matter of right, recover the value of their improvements from the lessor, much less retain the premises until they are reimbursed. Their rights are governed by Article 1678 of the Civil Code which allows reimbursement of lessees up to one-half of the value of their improvements if the lessor so elects. WON THERE WAS DENIAL OF DUE PROCESS FOR FAILURE TO NOTIFY THE GUARDIAN AD LITEM OF THE MINOR CHILDREN OF THE DECEASED OF THE MOTION FOR EXECUTION? NO -there was evidence that the guardian ad litem has been duly apprised, as shown by the certification of the counsel for Nelia at the foot of her opposition to the motion for execution D-7. INVENTORY AND A PPRAIS AL. PROVISI ON FOR SUPPORT OF FAMILY RULE 83. Inventory and Appraisal. Provision for Support of Family Section 1. Inventory and appraisal to be returned within three months. Within three (3) months after his appointment every executor or administrator shall return to the court a true inventory and appraisal of all

...real and ...personal estate of the deceased which has come into his possession or knowledge. In the appraisement of such estate, the court may order one or more of the inheritance tax appraisers to give his or their assistance. Section 2. Certain article not to be inventoried. The wearing apparel of the surviving husband or wife and minor children, the marriage bed and bedding, and such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased, under the direction of the court, shall not be considered as assets, nor administered as such, and shall not be included in the inventory. Section 3. Allowance to widow and family. The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom, under the direction of the court, such allowance as are provided by law. Title IX. - SUPPORT (NCC) Art. 290. Support is everything that is indispensable for ...sustenance, ...dwelling, ...clothing and ...medical attendance, according to the social position of the family. Support also includes the education of the person entitled to be supported until he completes his education or training for some ...profession, ...trade or ...vocation, even beyond the age of majority. (124a) Art. 291. The following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and acknowledged natural children and the legitimate or illegitimate descendants of the latter; 32 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

(4) Parents and natural children by legal fiction and the legitimate and illegitimate descendants of the latter; (5) Parents and illegitimate children who are not natural. Brothers and sisters owe their legitimate and natural brothers and sisters, although they are only of the half-blood, the necessaries for life, when by a physical or mental defect, or any other cause not imputable to the recipients, the latter cannot secure their subsistence. This assistance includes, in a proper case, expenses necessary for elementary education and for professional or vocational training. (143a) Art. 292. During the proceedings for legal separation, or for annulment of marriage, the spouses and children, shall be supported from the conjugal partnership property. After the final judgment of legal separation, or of annulment of marriage, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, the judgment specifying the terms of such order. (n) Art. 293. In an action for legal separation or annulment of marriage, attorney's fees and expenses for litigation shall be charged to the conjugal partnership property, unless the action fails. (n) Art. 294. The claim for support, when proper and two or more persons are obliged to give it, shall be made in the following order: (1) From the spouse; (2) From the descendants of the nearest degree; (3) From the ascendants, also of the nearest degree; (4) From the brothers and sisters. Among descendants and ascendants the order in which they are called to the intestate succession of the person who has a right to claim support shall be observed. (144) Art. 295. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of ...urgent need and ...by special circumstances,

the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, and the latter should not have sufficient means to satisfy all, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the latter shall be preferred. (145) Art. 296. The amount of support, in the cases referred to in the five numbers of article 291, shall be in proportion to the resources or means of the giver and to the necessities of the recipient. (146a) Art. 297. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the needs of the recipient and the resources of the person obliged to furnish the same. (147) Art. 298. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date it is extrajudicially demanded. Payment shall be made monthly in advance, and when the recipient dies, his heirs shall not be obliged to return what he has received in advance. (148a) Art. 299. The person obliged to give support may, at his option, fulfill his obligation either ...by paying the allowance fixed, or ...by receiving and maintaining in his house the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. (149a) Art. 300. The obligation to furnish support ceases upon the death of the obligor, even if he may be bound to give it in compliance with a final judgment. (150) Art. 301. The right to receive support cannot be renounced; nor can it be transmitted to a third person. Neither can it be compensated with what the recipient owes the obligor. However, support in arrears may be compensated and renounced, and the right to demand the same may be transmitted by onerous or gratuitous title. (151) Art. 302. Neither the right to receive legal support nor any money or property obtained as such support or any pension or gratuity from the government 33 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

is subject to attachment or execution. (n) Art. 303. The obligation to give support shall also cease: (1) Upon the death of the recipient; (2) When the resources of the obligor have been reduced to the point where he cannot give the support without neglecting his own needs and those of his family; (3) When the recipient may engage in a ...trade, ...profession, ...or industry, or has obtained work, or has improved his fortune in such a way ...that he no longer needs the allowance for his subsistence; (4) When the recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance; (5) When the recipient is ...a descendant, ...brother ...or sister of the obligor and the need for support is caused ...by his or her bad conduct or ...by the lack of application to work, so long as this cause subsists. (152a) Art. 304. The foregoing provisions shall be applicable to other cases where, in virtue of this Code or of any other law, by will, or by stipulation there is a right to receive support, save what is stipulated, ordered by the testator or provided by law for the special case. (153a) SEBIAL VS. SEBIAL (1975) On R83.1: The 3-month period provided is not mandatory and the court retains jurisdiction even if the inventory is filed after said period, but such delay, if not satisfactorily explained, may be a ground for the removal of the administrator under R82.2 Short summary: child from decedent's second family filed for settlement of estate of her dad and prayed that she be made the administratrix 17 years after death of dad. Child from 1st marriage opposed, saying that the estate was already partitioned among heirs and that they had already disposed of the said properties in favor of 3P and that the estate's value was small that it can be settled amicably. CFI ruled in favor of the petitioner 2nd family child making her the administratrix, even ordering that the 3P and the children of the 1st marriage to deliver the property to the administratrix appointed. Court held that 1st, even if the appointed administratrix filed the inventory more than 3 months from appointment, the court still had jurisdiction. 2nd, it ruled that the trial court should first determine the value of the estate, receiving evidence for it, and the ownership of the said properties covered by the estate, it being argued

that 3P already own it. It being unsure of WON the properties still belonged to the heirs of the decedent, it was improper for the TC to order the delivery of said properties to the administratrix.

OPPOSITORS: registered opposition to inventory: 7 parcels of land enumerated NO LONGER formed part of decedent's estate

Facts: Intestate decedent: Gelacio Sebial (1943) -2 wives 1st marriage: w/ Leoncia Manikis (died 1919) -Had 3 children:  Roberta  Balbina  Juliano 2nd marriage: w/ Dolores Enad (allegedly married, 1927) -had 6 children:  Benjamina  Valentina  Ciriaco  Gregoria  Esperanza  Luciano

MAY 1961: administratrix filed MOTION to require Rematado, Demetrio Camillo and Roberta Sebial and spouse to deliver some of the parcels of land covered in the inventory

1960: BENJAMINA filed verified petition for settlement of Gelacio's estate -prayed that she be made Administratrix >>ROBERTA OPPOSED: 1. Gelacio's estate already partitioned 2. If ever administration proceedings necessary, Roberta was qualified and not Benjamina Roberta

Benjamina

1st family

2nd family

Resident of Guimbawian, remote town of Pinamungajan where the decedent's estate was supposedly located

Housemade working at Talisay, Cebu (70km from Pinamungajan)

3. Benjamina's only remedy was to rescind the partition TC: appointed BENJAMINA (so granted the petition of Benjamina) 1. Decedent left an estate consisting of lands21 ha, valued at more than P6k 2. The alleged partition was invalid and ineffective >>>letters of administration issued to BENJAMINA (January 19, 1961) >>>notice to creditors issued >>>Roberta et. Al filed MR: 1. Estate already partitioned on August 1945 2. Action to rescind the partition already prescribed >>>MR denied -Roberta filed MOTION TO TERMINATE ADMIN PROCEEDING 1. Estate valued at less than P6k 2. Estate already partitioned so no necessity for administration proceeding APRIL 27, 1961: BENJAMINA filed inventory and appraisal of decedent's estate -7 unregistered parcels of land w/ total value of P9k, all located in Guimbawian, Pinamungajan

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JUNE 1961: PROBATE court suspended action for possibility of amicable settlement, ordered parties to submit own inventories NOV 1961: OPPOSITORS filed own inventory -Gelacio and Leoncia (1st wife) acquired 2 parcels of land in 1912 and 1915 -the conjugal estate of Gelacio and Dolores consisted only of 1 parcel of land of 7 hectares, and this property was even bought from the conjugal assets of the 1st marriage. This land was also already bought by Cortado -2 parcels of land already partitioned among children: 3/4 to children of 1st marriage while 1/4 to children of 2nd marriage -3P already bought some of the portions of land in the estate -TC required administratrix to submit new inventory NOVEMBER 17, 1961 >>>amended inventory: included 2 houses allegedly valued at P8k - approved: prima facie evidence that 7 parcels of land and the 2 houses belonged to the decedent's estate then later ordered the delivery of certain parcels of land to the administratrix and the claimants should not disturb her in possession and administration of the same -the oppositors filed a motion for revision of partition but was not granted -ROBERTA filed for MR: 1. Court had NO JURISDICTION: inventory filed beyond 3-m period fixed in R84.1 2. Inventory is not supported by documentary evidence 3. The 2 houses included in the amended inventory were already demolished during the Japanese invasion and the materials for it were already appropriated by the children of 2nd marriage 4. Valuation in the inventory was fake (it should be P3,080 instead of P17k) 5. Since value of estate is small, it should be settled summarily as provided in R74.2 6. Ordinary action to recover lands in possession of 3P should be resorted to by child of 2nd marriage …but w/o waiting for resolution of the MR, they filed a notice of appeal w/ CA CA: certified case to SC because it involves legal issues 1.

WON COURT LOST ITS JURISDICTION TO APPROVE THE INVENTORY WHICH WAS FILED MORE THAN 3 MONTHS FROM DATE OF APPOINTMENT OF ADMINISTRATRIX? NO -here: 2nd inventory was filed November 17 but administratrix appointed January 19. *The three-month period prescribed in section 1, Rule 83 (formerly Rule 84) of the Rules of Court is not mandatory. After the filing of a petition for the issuance of letters of administration and the publication of the notice of hearing, the proper Court of First Instance acquires jurisdiction over a decedent's estate and retains that jurisdiction until the proceeding is closed. The fact that an inventory was filed after the three-month period would not deprive the probate court of jurisdiction to approve it. However, an administrator's unexplained delay in filing the inventory may be a ground for his removal (Sec. 2, Rule 82, Rules of Court).

2.

3.

WON THE SETTLEMENT OF THE ESTATE SHOULD BE DONE SUMMARILY IN ACCORDANCE W/ R74.2? Not yet sure -here, the lower court FAILED TO ASCERTAIN by preponderance of evidence THE ACTUAL VALUE OF THE ESTATE, and if there is still an estate to be administered …approval of the amended inventory is not such administration: such a determination is only PROVISIONAL in character and w/o prejudice to a judgment in a separate action on the issue of title or ownership …probate court should proceed summarily and expeditiously to terminate the proceedings should strive for an AMICABLE SETTLEMENT (using Article 222, NCC: note however that in the case of Vda de Manalo vs. CA, it was held that there was no need for effort to settle in settlement of estate because said condition precedent was only needed for ordinary civil actions WON THE ORDER TO DELIVER PROPERTIES IN QUESTION TO ADMINISTRATRIX WAS PROPER? NO -lower court did not receive evidence to determine who really owns the properties in question! *GR: if parties are ALL HEIRS, optional to submit to probate question of ownership and so probate may pass judgment on said question X: if 3P would be prejudiced -if fraudulent conveyance: these 3P may be examined under oat as to how they came into possession BUT still, a separate action would be necessary to recover said assets …here, there are 3P who allegedly already bought the said parcels of land

CHUA TAN V. DEL ROSARIO (1932) Short summary: there are 2 cases involved, the first being a suit by the administratrix of the father against the administratrix of the adoptive son for the accounting of certain funds alleged to have been delivered IN TRUST to the adopted sun, and the 2nd suit by the presumptive heirs of the father against the same administratrix of the adoptive son for partition of the same funds. SC held that since there was substantial identity of parties, identity of subject matter and COA, there was res judicata so the second proceeding was alredy barred.

Same parties Same COA Same issues which was heard on the merits

Same parties Same issue actually and directly passed upon and determined by a competent court Even if COA are totally different

Absolute bar to a subsequent action, not only as to matters offered and received but also as to any other admissible matter which might have been offered for that purpose

Estoppel only as to those matters in issue or points controverted upon the determination of wich the finding or judgment was rendered

HERE: (1) While there is no identity between the plaintiff in the former case and the plaintiffs in the present case, there is the relation of representation between them; (2) there is identity of cause of action; (3) there is identity of subject matter; and (4) there is identity of issue, upon which depends the granting or denial of the relief sought in each of said cases, and this issue has been impliedly decided in the former case. Therefore, all the elements of res judicata in accordance with the aforecited legal provisions are present. 1st case

2nd case

Identity of parties

Plaintiff: Presumptive heirs of Chua Piaco Defendant: Lucia del Rosario (same capacity)

Facts: -allegedly, Chua Piaco (father) delivered in trust to the adoptive son Chua Toco, funds. These funds were allegedly used by the adoptive son to purchase a land in Antonio Rivera Street w/c Manila Railroad Co expropriated.

Plaintiff: Benedicta Santa Juana (judicial administratrix of intestate estate of Chua Piaco) Defendant: Lucia del Rosario (administratrix of intestate estate of Chua Toco)

Identity of Subject Matter

Partition of the SAME FUNDS AND FRUITS

FIRST CASE -apparently the adoptive son died first so that during the settlement of the estate of the father, the administratrix was being impleaded to account for the funds allegedly belonging partly to the father. -1st case held that the funds were exclusively owned by the adoptive son.

Rendering of an accounting of certain FUNDS ALLEGED TO HAVE BEEN DELIVERED IN TRUST by the father to the adopted son

Identity of COA

Allegation of trust

Allegation of trust

Relief sought

Render an accounting

Partition

SECOND CASE -now the PRESUMPTIVE HEIRS of the father, the surviving spouse and other heirs of Chua Piaco, sues the administratrix of the adoptive son for partition of the funds, arguing that the same set of funds were partly of the estate of the father. The court dismissed it based on res judicata. -presumptive heirs appealed the case. WON THERE WAS RES JUDICATA HERE? YES BAR BY PRIOR JUDGMENT VS. RES JUDICATA Res judicata

Bar by prior judgment

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-As to identity of parties: Court held that since the administratrix of the estate of Chua Piaco was the legal representative not only of the estate but also of its creditors and heirs, and that the 1st case was rendered against her, the said judgment is binding upon the heirs who are suing in the 2nd case It is the duty of the administrator of the testate or intestate estate of a deceased to present an inventory of the real estate of a deceased to present an inventory of the real estate and all goods, chattels, rights, and credits of the deceased which have come into his possession or knowledge, in accordance with the provisions of section 668 of the Code of Civil Procedure, and to manage them according to section 643 of the same Code; and in order that he may have in his power and under his custody all such property, section 702 of the aforesaid Code authorizes him to bring such actions for the purpose as he may deem necessary. Section 642 in providing for the appointment of an administrator where there is no will or the will does not name an executor, seeks to protect not only the estate of the deceased but also the rights

of the creditors in order that they may be able to collect their credits, and of the heirs and legatees in order that they may receive the portion of the inheritance or legacy appertaining to them after all the debts and expenses chargeable against the deceased's estate have been paid. Under the provisions of the law, therefore, the judicial administrator is the legal representative not only of the testate or intestate estate, but also of the creditors, and heirs and legatees, inasmuch as he represents their interest in the estate of the deceased. -As to identity of subject matter: same - As to identity of COA: Same, predicted on one and the same alleged right to action arising out of an alleged trust, and the same general denial and special defense. -As to difference in relief sought: the relief sought in the 2nd proceeding necessarily involves the main question of ownership of the funds and its fruits, which , in the first case, was already ruled to be the property of the adoptive son DE LEON VS. CA (2002) Short summary: One of the children of the decedent contests the inventory made by his sister who is also the administratrix of the estate, saying that some properties of the decedent were excluded from the inventory and should thus be collated. The TC ordered the collation of said properties, but the owners (the administratrix and other siblings) contested, saying that these properties were sold to them by their father during the latter's lifetime for a consideration. CA held that the order of including these properties in the collation is already final and unappealable. SC held that the said order was merely an interlocutory order, which does not touch upon the issue of ownership of the said properties, and thus, collation is still premature. The said order is merely an order for inclusion in the inventory of the decedent's estate of the properties in question and not the final order contemplated in R90.2. Facts: Father: Rafael (+) Mother: Salud (+) Children: *Teresita de leon (administratrix of estate of father, Rafael) *Estrellita Vizconde *Antonio Nicolas (+) - represented by surviving spouse Zenaida Nicolas and the heirs) *RAMON NICOLAS: oppositor -RAMON filed MOTION FOR COLLATION: Rafael Nicolas given some of the properties to his children (including him) during his lifetime by gratuitous title and administratrix Teresita failed to include it in the inventory >RTC: ORDER directing Ramon to submit pertinent documents of the alleged transfer , set his motion for hearing w/ notice to present registered owners to show cause why their properties should not be included in the collation -Ramon filed amended motion for collation, adding several other lands that were allegedly not included in the inventory (additional lots allegedly received by Antonio) >RTC (Nov11, 1994 order): granted that some of the properties be included in the collation and the inventory >>Teresita filed MR: Properties subject to the Order were already titled in the names of the children a few years ago (for a consideration) and may not be collaterally attacked in a motion for collation >>>DENIED >>>Teresita filed MR of the denial, opposed by Ramon >>>TC: ordered Ramon to prove that the disposition made by Rafael during his lifetime was gratuitously made and not for consideration -TC ordered (Nov4, 1996 Order) Teresita's removal as administratrix: CONFLICT of INTEREST

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-Teresita contested order: a. Prayed that she be maintained as administratrix b. Properties that Ramon wanted for collation be declared as exclusive properties of registered owners and not subject to collation >>>TC denied; appealed to CA CA: Affirmed WON THE NOVEMBER 11, 1994 ORDER ORDERING THE INCLUSION OF THE PROPERTIES IN QUESTION IN THE INVENTORY OF THE ADMINISTRATRIX IS FINAL? NO -it's merely an interlocutory order, not final and ultimate in nature as to ownership of said properties; Any aggrieved party, or a third person for that matter, may bring an ordinary action for a final determination of the conflicting claims -Garcia vs. Garcia: The court which acquires jurisdiction over the properties of a deceased person through the filing of the corresponding proceedings, has supervision and control over the said properties, and under the said power, it is its inherent duty to see that the inventory submitted by the administrator appointed by it contains all the properties, rights and credits which the law requires the administrator to set out in his inventory. In compliance with this duty the court has also inherent power to determine what properties, rights and credits of the deceased should be included in or excluded from the inventory. Should an heir or person interested in the properties of a deceased person duly call the court’s attention to the fact that certain properties, rights or credits have been left out in the inventory, it is likewise the court’s duty to hear the observations, with power to determine if such observations should be attended to or not and if the properties referred to therein belong prima facie to the intestate, but no such determination is final and ultimate in nature as to the ownership of the said properties -Probate court can only pass upon questions of title provisionally, because: (1) limited jurisdiction (2) questions of title or ownership, which result in inclusion or exclusion from the inventory of the property, can only be settled in a separate action -JIMENEZ V. CA: All that the said court could do as regards said properties is 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 a dispute as to the ownership, then the opposing parties and the administrator have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so. WON R90.2 MAKES THE DETERMINATION OF THE COURT AS TO ADVANCEMENTS MADE BINDING ON PERSON RAISING THE QUESTION AND ON THE HEIR? The order involved here is merely an interlocutory order so merely provisional. The order merely includes subject properties to the inventory -VDA DE RODRIGUEZ VS. CA: the order of exclusion (or inclusion) is not a final order; that it is interlocutory in the sense that it did not settle once and for all the title to the subject lots; that the prevailing rule is that 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. Ruling on inclusion or exclusion in the inventory is not the same as collation, which is premature at that time -R90.2 should be interpreted in context of R90.1 -the order allegedly including properties for collation is merely an ORDER OF INCLUSION IN THE INVENTORY OF THE ESTATE which is merely an interlocutory order -issue on collation still premature: no indication that the debts of the decedents spouses have been paid and the net remainder of the conjugal estate have already been determined, and the estates of the deceased spouses at the time filing of the motion for collation were ready for partition and distribution.

EVEN GRANTING THAT THE ORDER WAS FOR COLLATION, IS IT STILL APPEALABLE FOR FAILING TO STATE THE LAW AND THE FACTS UPON WHICH IT WAS BASED? YES -Consti (ArtVIII.14) provides that the decision should be rendered expressly stating the law and the facts upon which it was based. Since the decision here did not comply with the consti provision, it should be appeable -what TC forgot: No reasons for ordering collation Did not declare the properties enumerated were given gratuitously to the children Even if Ramon presented his witnesses, their testimonies were not even mentioned in the assailed order -making it unappealable is a violation of DUE PROCESS: A void judgment is not entitled to the respect accorded to a valid judgment, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. Petitioner would have been deprived of due process as they would be divested of the opportunity of being able to point out in a motion for reconsideration or on appeal, any errors of facts and/or law considering that there were no facts or laws cited in support of the assailed Order of collation. WON THE ORDER REMOVING TERESITA AS ADMINISTRATRIX IS APPEALABLE? YES -in fact CA ordered TC to give due course to the notice of appeal WON IT IS PROPER TO ELEVATE THE RECORDS OF THE SPECPRO TO CA FOR APPEAL FROM ORDER REMOVING THE ADMINSITRATRIX IS NECESSARY? No -unnecessary where a record on appeal is allowed under the Rules of Court. The court a quo loses jurisdiction over the subject of the appeal upon the approval of the record on appeal and the expiration of the time to appeal of the other parties; but retains jurisdiction over the remaining subject matter not covered by the appeal. RUIZ VS. CA (1996) Short Summary: Hilario Ruiz left a holographic will wherein he named as his heirs his only son, his adoptive daughter and his grandchildren from his only son. His only son was also named executor of the will. Upon his death, the only son did not petition for the probate of said will, and even opposed the probate of the will. The probate court ordered that support be given to the grandchildren, and that the titles to the two apartments being rented out be released to the heirs. Court held that as to the support to be given, the rules of court provides that ONLY CHILDREN of the deceased (as well as the surviving spouse) are entitled to support, not the grandchildren. As to the release of the titles, court held that it was too early to release the titles yet as the estate has not yet been inventoried and appraised, the charges upon the estate has not yet been paid, and there is still an issue as to the intrinsic validity of the will which the court should proceed to determine first. Finally, court held that right to possession of Executor is not absolute, only as it is necessary for the payment of debts and expenses of administration. Facts: Hilario Ruiz left holographic will making the ff his heirs:  Edmond Ruiz (ONLY SON) - also named executor  Maria Pilar Ruiz Montes (adopted daughter)  Maria Cathryn (Edmond's daughter)  Candice Albertine (Edmond's daughter)  Maria Angeline (Edmond's daughter) -Hilario died. Cash component of the estate distributed among the heirs in accordance with the will -4 years after Hilario's death, Maria Pilar filed petition for probate and approval of Hilario's will + issuance of letters testamentary to Edmond >>>EDMOND OPPOSED: will was executed under undue influence 37 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

…pending this, the Valle Verde house bequethed to the daughters of Edmond were leased by Edmond to 3Ps -PROBATE COURT JAN 19, 1993 ORDER: Edmond deposit rental deposit and payments for 1 yr lease of Valle Verde property (worth P540k) >>>Edmond turned over only P348,583.56 (deducted expenses for repair and maintenance) -Edmond moved for RELEASE OF P50k to pay the REAL ESTATE TAX - approved only P7,722 -Edmond w/drew Opposition to probate of will MAY 18, 1993 ORDER: 1. WILL ADMITTED TO PROBATE 2. Edmond Ruiz issued letters testamentary (finally issued June 23, 1993), conditioned upon filing of P50k bond EX-PARTE MOTION FOR RELEASE OF FUNDS filed by Testate Estate of Hilario Ruiz, w/ Edmond as executor: prayed for release of rent payments deposited w/ Branch Clerk >>>OPPOSED by Montes (adopted daughter); filed MOTION FOR RELEASE OF FUNDS TO CERTAIN HEIRS + MOTION FOR ISSUANCE OF CERTIFICATE OF ALLOWANCE OF PROBATE WILL: prayed for 1. Release of rent payments to the daughters of Edmond (note: the property rented out by Edmond was bequeathed to his daughters) 2. Distribution of testator's properties in accordance w/ the holographic will *PROBATE COURT: 1. Denied Edmond's motion for release of rent payments 2. Granted Montes' motion for release of the rent to the daughters instead 3. Granted the delivery of the titles to and possession of the Valle Verde and Blue Ridge properties to the 3 granddaughters and to Montes, upon filing of P50k bond >>>MR by Edmond… PROBATE COURT (DEC 22, 1993 ORDER): 1. Release funds to Edmond only as may be necessary to cover the expenses of administration and allowances for support of the testator's 3 granddaughters, subject to collation and deductible from their share in the inheritance 2. Release of titles to respondents held in abeyance until lapse of 6 months from date of first publication of notice to creditors >>>Edmond filed MR for GADALEJ CA: dismissed petition, affirmed Probate court 1.

WON IT WAS PROPER FOR THE PROBATE COURT TO GRANT ALLOWANCE FROM THE FUNDS OF THE ESTATE FOR THE SUPPORT OF THE TESTATOR'S GRANDCHILDREN? NO -R83.3 (see CODAL) -Edmond argues: a. Provision only gives the WIDOW and MINOR or INCAPACITATED CHILDREN of deceased the right to receive allowances for support b. 3 GRANDCHILDREN does not qualify i. Not incapacitated ii. Not minors: of legal age, married, and gainfully employed iii. Not the "children" stated in the provision -HELD: a. Children in R83.3 not limited to MINOR or INCAPACITATED CHILDREN, following A188, NCC: during the liquidation of the conjugal partnership, the deceased's legitimate spouse and children, regardless of their age, civil status or gainful employment, are

2.

3.

entitled to provisional support from the funds of the estate. The law is rooted on the fact that the right and duty to support, especially the right to education, subsist even beyond the age of majority. b. GRANDCHILDREN are not entitled to provisional support from the funds of decedent's estate. Law is clear. WON IT WAS PROPER FOR PROBATE COURT TO ORDER THE RELEASE OF THE TITLES TO CERTAIN HEIRS? NO -order releasing titles to properties of the estate = advance distribution of the estate -when advance distribution of estate's properties allowed: (1) after all the debts, funeral charges, expenses of administration, allowance to the widow, and estate tax have been paid; or (2) before payment of said obligations only if the distributees or any of them gives a bond in a sum fixed by the court conditioned upon the payment of said obligations within such time as the court directs, or when provision is made to meet those obligations. -HERE:  probate court only gave NOTICE to creditors, not payment of debts and obligations  Estate tax not yet paid, much less ascertained  Estate has not yet been inventoried and appraised  Though will was already probated (and the probate of the will is conclusive as to its due execution, extrinsic validity, and capacity of testator to make a will, questions as to intrinsic validity and efficacy of the provisions of the will, legality of any devise or legacy may still be raised so it's too early to order the release of the titles. Here, Edmond contests the distributive shares of the devisees and legatees as his father's will included estate of his mother, allegedly impairing his legitime as intestate heir of mother. So probate court could proceed to hear and decide the same as in ordinary cases WON THE ORDER OF THE COURT DEPRIVED HIM OF HIS RIGHT TO TAKE POSSESSION AND MANAGEMENT OF ALL PROPERTIES OF THE ESTATE AS THE EXECUTOR OF THE WILL? NO -The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised "so long as it is necessary for the payment of the debts and expenses of administration (R84.3) -he should first submit an accounting of the necessary expenses for administration before he be released any more money:  he was already granted release of funds for the repair and maintenance expenses and payment of real estate taxes, w/o rendering accounting for the same.  He only deposited a portion of 1-year rental income from the Valle Verde property, but not the succeeding rents. Also no accounting of such funds -Petitioner must be reminded that his right of ownership over the properties of his father is merely inchoate as long as the estate has not been fully settled and partitioned. *As executor, he is a mere trustee of his father's estate. The funds of the estate in his hands are trust funds and he is held to the duties and responsibilities of a trustee of the highest order. *He cannot unilaterally assign to himself and possess all his parents' properties and the fruits thereof without first submitting an inventory and appraisal of all real and personal properties of the deceased, rendering a true account of his administration, the expenses of administration, the amount of the obligations and estate tax, all of which are subject to a determination by the court as to their veracity, propriety and justness.

D-8. GENERAL P OWERS AND D UTIES OF EXECUT ORS AND ADMINISTRATO RS RULE 84 General Powers and Duties of Executors and Administrators

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Section 1. Executor or administrator to have access to partnership books and property. How right enforced. The executor or administrator of the estate of a deceased partner shall at all times ...have access to, ...and may examine ...and take copies of, books and papers relating to the partnership business, ...and may examine ...and make invoices of the property belonging to such partnership; and the surviving partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or control. On the written application of such executor or administrator, the court having jurisdiction of the estate may order any such surviving partner or partners ...to freely permit the exercise of the rights, and ...to exhibit the books, papers, and property, as in this section provided, and may punish any partner failing to do so for contempt. Section 2. Executor or administrator to keep buildings in repair. An executor or administrator shall maintain in tenantable repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devisees when directed so to do by the court. Section 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed. An executor or administrator shall have the right to the possession and management of the ...real as well as the ...personal estate of the deceased so long as it is necessary for the payment of ...the debts and ...the expenses of administration. INTESTATE ESTATE OF FELIPE BUENAVENTURA VS. ILOG AGRICULTURAL CORPORATION Short Summary: The encargado of the estate (the Administratrix assigned to him the administration of the estate) authorized the swapping of the lot already assigned to an heir to another lot, without the latter’s consent. The court held that the heir was not bound by the decision of the encargado. Facts

-FELIPE BUENAVENTURA died -he left 20 parcels of land located in Negros Occidental and a building of strong materials -having married 2x, he also left 2 sets of children: 1st marriage 1. Pedro Buenaventura 2. Nicasia Buenaventura 3. Flora Buenaventura 4. Anacor[e[ta Buenaventura-FRANCISCO 5. Luz Buenaventura 6. Emilia Buenaventura 7. Simon Buenaventura, Sr. - deceased, so represented by wife and children 2nd marriage 1. Purisima Buenaventura 2. Rodolfo Buenaventura 3. Thelma Buenaventura 4. Phoebe Buenaventura 5. Jose Buenaventura 6. Antonio Buenaventura 7. Sally Buenaventura -ANACORETA was appointed as Judicial Administratrix. She left the administration of the estate to her ENCARGADO, her son MICHAEL FRANCISCO -some of the heirs sol their share in the estate, one of the vendees being ILOG AGRICULTURAL CORP (IAC) = got 18/29 including LOTS 2194 and 2380. Assignee of IAC intervened -JOINT SPECIAL ADMINISTRATORS: Arnulfo Nono and Angel Gabriel >submitted project of partition: Approved Project of Partition -to prepare the physical partition of the estate, the ff were appointed as COMMISSIONERS/SPECIAL ADMINISTRATORS: 1. Michael Francisco 2. Atty. Beethoven Buenaventura 3. Atty. Nilo Sorbito for AIC -the Commissioners recommended the Physical partition of the estate which Micheal did not sign although he actively participated in the preparation of the plan. The proposal gave NICASIA Lot No. 1871B. Court took JN that he did participate -Michael objected to the proposed partition on the ground that it was incomplete and erroneous:  IAC already occupied Lot. 2194 before the approval of the project of partition, already harvested the produce therefrom  BUT IAC agreed to cede the lots it bought (Lot 2194 and 2380) ifo ANACORETA and BEETHOVERN in exchange for LOT 1863-B -so ATTYs. BEETHOVEN and NILO made a new parcellary map -Conference was held wherein Michael manifested that the share of NICASIA in Lot 1871-B was to be swapped with LOT 2194 which IAC assigned to ANACORETA and BEETHOVEN. So what was agreed upon:  Lot 1871-A (originally to NICASIA): swapped to equivalent area in Lot 2194 (which was originally assigned to ANACORETA and BEETHOVEN by IAC)  Portion of Lot 1871-A and residue of LOT 2194 allotted to ATTY. BEETHOVEN  Lot 1871-B to IAC -but revised it again:  NICASIA was given portions of Lot 2194 and 2380 (which was assigned originally to ANACORETA and BEETHOVEN)  The rest of Lot 2194 to BEETHOVEN

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 Lot 1871-B went to IAC -NICASIA OBJETED, with BEETHOVEN as counsel, to the swapping of the 2 lots (originally owned by IAC): 1. That during the hearing for the approval of the original physical partition plan, MICHAEL FRANCISCO manifested that her (NICASIA's) share which was w/n Lot 1871-B was to be swapped to the WHOLE Lot 2194 2. When the swapping was brought to her attention, she vehemently denied that she was ever consented or ever authorized MICHAEL FRANCICO to swap her share. She wants LOT 1871-B (which went to IAC) TC: set another conference: noted that the parties agreed to the earlier partition (the last revision) except for the share of NICASIA. Later held in abeyance the distribution of Lot 1871-B and a portion of Lot 2194 -NICASIA manifested that she would agree to the swapping of lot 1871-B if IAC would lease her a portion of the said lot -TC: disposed disputed share (based substantially on the testimony of MICHAEL FRANCISCO): o Lot 1871-B = IAC o Entire share of NICASIA in Lot 1871 = ANACORETA o Lot 2194 = NICASIA -NICASIA Appealed, alleging that she did not authorize MICHAEL Francisco to represent her and she was not consulted of the swapping, and just knew about it after the revised partition CA: ifo NICASIA (would own Lot 1871-B) -ANACORETA filed petition for review (she was the JUDICIAL ADMINISTRATRIX) WON MICHAEL FRANCISCO COULD BIND NICASIA TO THE PARTITION? NO -petitioner heirs failed to prove that NICASIA knew, through BEETHOVEN (her brother) and MICHAEL FRANCISCO that Lot 1871-B (already assigned to her) was to be swapped with a portion of Lot 2194 -NO evidence that NICASIA authorized MICHAEL FRANCISCO nor BEETHOVEN to agree in her behalf to the swapping -Michael Francisco was merely the encargado of the administratrix, a member of the Joint Commissioners tasked to effect a physical partition of the estate. Any recommendation made in such capacity is still subject to the action of the court after due notice to the heirs; unless and until all the parties are notified of any report/recommendation, thereafter duly heard by the court, the heirs cannot thereby be bound. -NICASIA is not bound by BEETHOVEN's agreement to the revised partition, as he was acting as the heir of the deceased and not for NICASIA -as to MICHAEL FRANCISCO's testimony: only said that NICASIA went to him to ask for amounts as an advance of her inheritance for the death anniversary of the decedent, and that he only agreed to give NICASIA a portion of what she was asking >MICHAEL also, in opposing to the proposed physical partition, did not oppose to the allocation of Lot 1871-B to NICASIA …so affirm CA. NICASIA would own Lot 1871-B CARO VS. CA (1982) Short Summary: Property was co-owned by 3 brothers, one of which predeceased the others. His estate was administered by the surviving wife and his father. One of the co-owners sold his 1/3 undivided portion to a RP. Although the other co-owners did not want to redeem the property, the widow of the deceased co-owner (who was also 1 of the administrators of his estate) wanted to exercise such right. Court held that an administrator cannot exercise the right of legal redemption. Facts: -Sorsogon property (2 parcels of land) co-owned by:

 Alfredo Benito  Mario Benito (+)  Benjamin Benito -Mario died. Surviving wife Basilia Lahorra and father Saturnino Benito appointed as joint administrators of Mario's estate -Benjamin sold through DEED OF ABSOLUTE SALE of 1/3 undivided portion to LUZ CARO, for P10k. Registered sale. -Subdivision title issued to Luz Caro, with consent of Alfredo and Saturnino (as administrator) - both executed affidavits -almost 6 years after, Caro filed a pleading (not sure - as claimant/creditor? ) in the SPECPRO that she bought 1/3 of the property co-owned. Only then did Basilia found out about it. -Basilia offered to redeem the said share but was ignored -Basilia then intervened in case of Rosa Amador vda De Benito vs. Luz Caro for annulment of sale and mortgage and cancellation of the annotation of the sale and mortgage involving same parcels of land PRINCIPAL CASE dismissed for failure to prosecute and to pay docket fees -Basilia then filed this independent case for legal redemption: no notice of the sale as required under A1620 and 1623 of NCC (no notice to her as administrator of the estate of a co-owner) >La Luz presented secondary evidence of service of written notice to possible redemptioners (written notice sent to Alfredo and Saturnino - the best evidence - cannot be presented because they were already dead when the complaint for legal redemption brought):  Affidavit of Benjamin Benito, ante lite motam, attesting to the fact that the possible redemptioners were formally notified in writing of his intention to sell his undivided share  Deposition of Saturnino's widow (bale mother in law ni Basilia): testified that she received and gave Saturnino the written notice of intended sale and Saturnino expressed disinterest in buyingproperty >>Complaint for legal redemption DISMISSED a. Administratrix of co-owner does not have the power to exercise right of legal redemption b. Seller co-owner substantially complied w/ written notice requirement to possible redemptioners …MR denied, appealed to CA (with additional contention that Judge should have inhibited himself, his son being an associate/member of law office of Caro's lawyer CA: for Basilia 1. It is w/n the judge's discretion to disqualify himself, besides, no showing that Basilia asked for the Judge's disqualification 2. Right to redeem arose after death of Mario, so it's not part of the hereditary estate but a personal right of the heirs (which would include Basilia) 3. The deed of sale statement of the seller saying that the other co-owners declined to buy was a unilateral statement, not a proof of notice required by law 4. Registration of deed of sale did not erase right to redeem of other heirs who did not receive notice 5. Affidavits attesting to notice would not show that there was clear notice given. Saturnino's unilateral act as co-administrator can't bind his co-administrator who has right to redeem personally as heir 6. Basilia can still redeem >Caro appealed WON RIGHT OF REDEMPTION COULD STILL BE EXERCISED WHEN THE PROPERTY SOUGHT TO BE REDEEMED IS NOT CO-OWNED ANYMORE (on the theory that through the other co-owner and one of the administrators of the estate of the other co-owner already agreed to subdivide the property) 1. On the theory that there is no longer co-ownership, with partition of the property: 40 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

-CARAM vs. CA - though this case refers to conveyance made after partition:Once a property is subdivided and distributed among the co-owners, the community has terminated and there is no reason to sustain any right of legal redemption (purpose is to reduce the number of participants until the community is done away with -no difference w/ respect to conveyance before partition agreement. Basta may partition na, can't exercise right to redeem -on allegation of fraud: fraud in securing the registration of titles to the land should be supported by clear and convincing evidence -since subdivision title issued, and 1 year from date of entry of subdivision of title no claim for redemption, the Certificate of Title becomes indivisible, cannot be indirectly attacked 2.

On the assumption that there is still co-ownership and right of legal redemption still exists -as administratrix, no personality to exercise right …BUTTE vs. UY AND SONS: "While under Sec. 3, Rule 85, Rules of Court, the administrator has the right to the possession of the real and personal estate of the deceased, so far as needed for the payment of the expenses of administration, and the administrator may bring and defend action for the recovery or protection of the property or right of the deceased (Sec. 2, Rule 88), such right of possession and administration do not include the right of legal redemption of the undivided share sold to a stranger by one of the co-owners after the death of another, because in such case, the right of legal redemption only came into existence when the sale to the stranger was perfected and formed no part of the estate of the deceased co-owner; hence, that right cannot be transmitted to the heir of the deceased co-owner." -not discuss WON she could bring action as heir of a co-owner because her pleading specifically stated that she brought the action in her capacity as administratrix

WON action for enforcement of right of redemption already expired? Moot and academic -Caro argues that the tender of payment w/n 30 d from written notice of sale by co-owner already prescribed, and such being a condition precedent to file action for enforcement of right, it already prescribed -court did not rule on it, saying issue was already moot and academic ESTATE OF OLAVE VS. REYES (1983) Short Summary: Administrators of estate of decedent entered into an amicable settlement with a creditor company who wanted to collect from the estate of the decedent in a separate proceeding. This was done w/o prior approval of the probate court. SC held that prior approval of the probate court needed because (1) the claim of the creditors is a claim against the estate; and (2) probate court already acquired exclusive jurisdiction over the case, to the exclusion of the other court) Facts -there's already a special proceeding for the settlement of the estate of Amadeo Matute Olave in the Manila court. There's an order from this court providing that the co-administrators should first secure the probate court's approval before entering into any transaction involving the 17 titles of the estate -Southwest Agricultural Marketing Corporation (SAMCO) filed Civil case for collection of debt and attorney's fees in Davao court against the co-administrators of the estate of Amadeo Olave -even after order from the probate court to secure first its approval, SAMCO and the co-administrators entered into an AMICABLE SETTLEMENT wherein one of the 17 titles of the estate was ceded to SAMCO as payment for its claim. This was done w/o notice and approval of the probate court -DAVAO COURT: approved amicable settlement WON SAMCO PROPERLY FILED CLAIM IN A SEPARATE PROCEEDING? NO

1. R87.1: "no action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; . . ." 2. Claim of Samco could only be pursued by filing it in the administration proceedings and w/n the prescribed period, or else barred forever 3. Why present claims in the probate court: to protect the estate of deceased persons. That way, the executor or administrator will be able to examine each claim and determine whether it is a proper one which should be allowed. Further, the primary object of the provisions requiring presentation is to apprise the administrator and the probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or by pro-rata portion in the due course of the administration, inasmuch as upon the death of a person, his entire estate is burdened with the payment of all of his debts and no creditor shall enjoy any preference or priority; all of them shall share pro-rata in the liquidation of the estate of the deceased. 4. Manila Probate court already has exclusive jurisdiction over the proceeding and the properties claimed: R73.1 5. The law is clear that where the estate of the deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of the probate court. MANANQUIL V. VILLEGAS Short Summary: Disbarment case against the lawyer of the administrator for entering into a lease agreement with the estate he's working for, allegedly for a minimal fee and w/o court approval. Court held that no court approval is necessary for the administrator to enter into a lease agreement. But there is still sufficient grounds for disciplinary sanction, as he is prohibited under the civil code to enter into any transaction regarding the property which he is supposed to litigate. Facts: -Felomina Zerna died. Administration proceedings initiated, w/ Felix Leong appointed as administrator . Atty. Mananquil served as Leong's lawyer -Lease contract was executed between Leong (administrator) and the Heirs of Jose Villegas (to which Atty. Mananquil belonged), represented by brother in law of Atty. Mananquil involving sugar lands -2 years after, Hijos De Jose Villegas was formed among the heirs of Jose Villegas. Another lease contract entered between Leong and Hijos De Jose Villegas -as representative brother in law already dead, Atty. Mananquil was appointed manager -lease contract again renewed, but now Atty. Mananquil was the representative of the Hijos De Jose Villegas. He signed for the partnership for at least 3 times. 1. WON ATTY. MANANQUIL SHOULD HAVE 1ST SECURED THE APPROVAL OF THE COURT IN SPECPRO TO THE VARIOUS LEASE CONTRACTS? NO -a judicial executor or administrator has the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and the expenses of administration. He may, therefore, exercise acts of administration without special authority from the court having jurisdiction of the estate. For instance, it has long been settled that an administrator has the power to enter into lease contracts involving the properties of the estate even without prior judicial authority and approval 2. WON ATTY. MANANQUIL SHOULD STILL BE SUBJECTED TO DISCIPLINARY SANCTION? YES -violated Art 1646, NCC and Art 1491: prohibited from leasing, either in person or through mediation of another, … (4) Public officers and employees, the property of the State or of any subdivision thereof, or of any government owned or controlled corporation, or institution, the administration of which has been

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intrusted to them; this provision shall apply to judges and government experts who, in any manner whatsoever, take part in the sale; (5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property or rights in litigation or levied upon on execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession. -prohibited because of the fiduciary relationship involved, or the peculiar control exercised by these individuals over the properties -Thus, even if the parties designated as lessees in the assailed lease contracts were the "Heirs of Jose Villegas" and the partnership HIJOS DE JOSE VILLEGAS, and respondent signed merely as an agent of the latter, the Court rules that the lease contracts are covered by the prohibition against any acquisition or lease by a lawyer of properties involved in litigation in which he takes part. To rule otherwise would be to lend a stamp of judicial approval on an arrangement which, in effect, circumvents that which is directly prohibited by law. For, piercing through the legal fiction of separate juridical personality, the Court cannot ignore the obvious implication that respondent as one of the heirs of Jose Villegas and partner, later manager of, in HIJOS DE JOSE VILLEGAS stands to benefit from the contractual relationship created between his client Felix Leong and his family partnership over properties involved in the ongoing testate proceedings. -on alleged lack of knowledge: impossible that he would not have knowledge of transactions of his family partnership, he even participated in some of the lease contracts -on alleged acquiescence and consent of the heirs: even with that, still prohibited from having any interest in the properties under litigation under Art 1491 and 1646, NCC, and as a lawyer, should uphold the laws of the land… -on Tuason vs. Tuason (allegedly ruled that renewal of contracts do not fall w/n NCC prohibition): can't infer from that case that contracts of sale or lease where vendee/lessee is a partnership, of which a lawyer is a member, over a property involved in a litigation in which he takes part by virtue of his profession, are not covered by the prohibition under Articles 1491 and 1646. >>>SUSPENDED FOR 4 months ESTATE OF RUIZ VS. CA, SUPRA WON THE ORDER OF THE COURT DEPRIVED HIM OF HIS RIGHT TO TAKE POSSESSION AND MANAGEMENT OF ALL PROPERTIES OF THE ESTATE AS THE EXECUTOR OF THE WILL? NO -The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised "so long as it is necessary for the payment of the debts and expenses of administration (R84.3) -he should first submit an accounting of the necessary expenses for administration before he be released any more money:  he was already granted release of funds for the repair and maintenance expenses and payment of real estate taxes, w/o rendering accounting for the same.  He only deposited a portion of 1-year rental income from the Valle Verde property, but not the succeeding rents. Also no accounting of such funds -Petitioner must be reminded that his right of ownership over the properties of his father is merely inchoate as long as the estate has not been fully settled and partitioned. *As executor, he is a mere trustee of his father's estate. The funds of the estate in his hands are trust funds and he is held to the duties and responsibilities of a trustee of the highest order.

*He cannot unilaterally assign to himself and possess all his parents' properties and the fruits thereof without first submitting an inventory and appraisal of all real and personal properties of the deceased, rendering a true account of his administration, the expenses of administration, the amount of the obligations and estate tax, all of which are subject to a determination by the court as to their veracity, propriety and justness.

D-9 RULE 85 CASES PICARDAL V. LLADAS Summary: Heirs of the Estate ejected the tenant from the premises. Tenant sued for damages, the heirs claim that the tenant should claim from the Estate. Court held that the Estate is not liable for damages incurred by the heirs of the estate. Facts: -AUREA BURGOS died 1941 -her estate was under judicial administration but property was not yet partitioned among the heirs (even pending this petition for review of CAR decision!) -in 1950, BERNARDO PICARDAL (husband of Aurea) made CENON LLADAS the tenant of their conjugal partnership property consisting of a 7 ha coconut plantation -VERBAL agreement:  1/3 goes to LLADAS, 2/3 goes to PICARDAL  LLADAS would keep the coconut plantation clean -so Llardas entered into landholding, harvested the nuts, processed the copra and divided the harvest after selling it -1959: DEMETRIO SIRA was appointed as special administrator of AUREA BURGOS' estate. He wrote to Lladas that he should take good care of the plantation, and if he would fail to do so, the administrator would bring the corresponding action in accordance w/ tenancy law -1960: Lladas harvested coconuts, processed them into copra then sold to LIAN HONG COMPANY. However, LIAN HONG COMPANY informed B. PICARDAL that the copra sold to them was mixed w/ fresh coconut meat, therefore 16% of the weight was deducted for moisture content -the next month of the same year, LLADAS brought petition against B. PICARDAL, Cesar Montoya and Demetrio Sira (the special administrator) COA (PINAPAALIS SHA):  he had been a tenant since 1948  He had already planted about 800 fruit-bearing trees on Picardal's land  That he and Picardal had been sharing the proceeds of the copra sales  That February 1960 (about the time when Lian Hong informed B. Picardal of what Lladas was doing), B. Picardal thru C. Montoya and D. Sira (special administrator) served on him notice to vacate 1/2 of land in favor of another tenant  He suffered damages >>>ANSWER: 1. landholding was property of Aurea Burgos and was subject to adminstration proceedings (under custodia legis) 2. The administrator had no information about the notice of ejectment (never notified Lladas to vacate the premises) -May 1960: Lladas harvested coconuts, processed them into copra, which was sold by B. Picardal to Lian Hong Company, from which Lladas received P645 as his share (parang wala lang a…) -October: Lladas amended his petition (NAPALAYAS NA SI LLADAS):

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1.

it was SEBASTIAN PICARDAL who ejected him from the property, w/ the knowledge of B. PICARDAL 2. He planted fruit trees on the land, and the produce was shared with B. PICARDAL 50-50 3. Due to the ejectment, he suffered damages >>>>ANSWER: 1. They did not eject Lladas 2. Lladas abandoned the landholding 3. It was only after he left when S. Picardal posted the No trespassing sign -later amended the petition again to replace SIRA w/ ROSALIA PENPENA, the new administratrix CAR: for LLADAS 1. Reinstate Lladas 2. Pay P4515 to Lladas w/ interest 3. Further pay P645 every 4 months during the period that Lladas has not been actually reinstated >>>MR: Denied >>>SO NOW PICARDAL FATHER AND SON APPEALS TO THE COURT 1. WON LLADAS WAS EJECTED? YES -the findings of facts of the Court of Agrarian Relations will not be disturbed on appeal where there is substantial evidence to support them, and all that this Court is called upon to do insofar as the evidence is concerned, is to find out if the conclusion of the lower court is supported by substantial evidence -Substantial evidence has been defined to be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and its absence is not shown by stressing that there is contrary evidence on record, direct or circumstantial, as petitioners herein have done in quoting the contrary evidence consisting of the testimony of Sebastian Picardal, for the appellate court cannot substitute its own judgment or criterion for that of the trial court in determining wherein lies the weight of evidence or what evidence is entitled to belief PICARDALs allegation

COURT

Lladas was not ejected

Lladas was ejected sabi ng CAR so dapat maniwala kami

-S. Picardal testified that Cenon voluntarily abandoned the landholding w/o advise to either father or the special administrator -Lladas left because he already had another piece of land -Lladas also left because he was ashamed to the special adminstrator who forbid hi to harvest coconuts 2x in 3 months

1. Picardals had more motive to oust Lladas than Lladas to leave the plantation: ...Picardal had reason to be irked with what Lladas did - mixing fresh coconut meat w/ dried copra 2. S. Picardal put up a sign board saying: "It is prohibited to whoever he is to take or to do anything with the coconuts, especially the squatters" 3. Lladas gets ~P1,860 a year from the plantation and spent his efforts on the plants in the said plantation 4. The homestead applied by Lladas was already transferred to a certain Cuidato.

2. WON the damages assessed should be levied against the intestate estate, as the proceeds of the estate is in the hands of the administratrix? NO -at the time the petition , the entire conjugal property is under administration so the estate was the landlord of the landholding BUT THE FATHER AND SON SHOULD BE LIABLE (EVEN IF THERE ARE OTHER HEIRS): a. The estate, as the landlord, is only liable for the illegal dispossession of the tenant if the estate was responsible for the unlawful ejectment of the tenant. If it was a 3P (i.e. the father and son), the 3P would be liable (RA 1199 - Agricultural Tenancy Act) b. The act of the father and son was not an act of the estate. The father and son is not the representative of the estate - the administrator is and he is not the one who pepetrated the ejectment. c. The administrator would be liable for ANY WASTE COMMITTED IN THE ESTATE THROUGH HIS NEGLIGENCE (R85.5) BUT NOT THE ESTATE d. The estate did not benefit from the dispossession because regardless of who the tenant was, the estate would receive a 2/3 share of the sales from the produce of the land. So cannot be ordered to pay the damages e. On the argument that they are not the only heirs (thus, they have co-owners): A coownership should not suffer the consequences of the unlawful act of any of the coowners (A501, NCC) f. Art 20, NCC: "every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same." - so the Picardal father and son, not the estate who did not do anything, should be responsible to pay for the damages! DE GUZMAN V. CARILLO Summary: some of the heirs contested some of the disbursements made by the appointed administrator. Court allowed expenses for the renovation and improvement of the family residence, the lawyer's subsistence and gift to physician who attended the testator during his last days, and the irrigation fees. Disallowed expenses by one of the heirs while living in the ancestral home and some other expenses. Facts: -Felix de Guzman of Gapan, Nueva Ecija died -heirs (8 children):  Victorino  Librada  Severino  Margarita  Josefina  Honorata  Arsenio  Crispina -will was probated -letters of administration issued to his son, VICTORINO (doctor sha, baka tanungin) -one of the properties left was the residential house located in the poblacion which was to be adjudicated to the 8 children in accordance w/ the project of partition -Dr. Victorino submitted 4 accounting reports. 3 of the heirs (Crispina, Honorata, and Arsenio) contested the disbursements -the disbursements made were approved by the lower court, in accordance w/ its earlier order that before disbursements are made, Dr. Victorino should first secure approval of the court

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I. Expense for the improvement and renovation of the decedent's residential house. 1. Construction of fence — P3,082.07 2. Renovation of bathroom — P1,389.52 3. Repair of terrace and interior of house — P5,928.00 — P10,399.59 II. Living expenses of Librada de Guzman while occupying the family home without paying rent: 1. For house helper — P1,170.00 2. Light bills — 227.41 3. Water bills — 150.80 4. Gas oil, floor wax and switch nail — 54.90 — P 1,603.11 III. Other expenses: 1. Lawyer's subsistence — P 19.30 2. Gratuity pay in lieu of medical fee — 144.00 3. For stenographic notes — 100.00 4. For food served on decedent's first death anniversary — 166.65 5. Cost of publication of death anniversary of decedent — 102.00 6. Representation expenses — 26.25 — P558.20 IV. Irrigation fee P1.049.58 TOTAL P13,610.48 WON the expenses are necessary expenses that the administrator is allowed to spend? PARTIALLY YES, PARTIALLY NO (look down for more specific explanation) -An executor or administrator is allowed the necessary expenses in the care, management, and settlement of the estate:  entitled to possess and manage the decedent's real and personal estate as long as it is necessary for the payment of the debts and the expenses of administration.  accountable for the whole decedent's estate which has come into his possession, with all the interest, profit, and income thereof, and with the proceeds of so much of such estate as is sold by him, at the price at which it was sold (Sec. 3, Rule 84; Secs. 1 and 7, Rule 85, Rules of Court). -One of the Conditions of the administrator's bond is that he should render a true and just account of his administration to the court. The court may examine him upon oath With respect to every matter relating to his accounting 't and shall so examine him as to the correctness of his account before the same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof. The heirs, legatees, distributes, and creditors of the estate shall have the same privilege as the executor or administrator of being examined on oath on any matter relating to an administration account." (Sec. 1[c] Rule 81 and secs. 8 and 9, Rule 85, Rules of Court). -HEARING: A hearing is usually held before an administrator's account is approved, especially if an interested Party raises objections to certain items in the accounting report (Sec. 10, Rule 85). At that hearing, the practice is for the administrator to take the witness stand, testify under oath on his accounts and Identify the receipts, vouchers and documents evidencing his disbursements which are offered as exhibits. He may be interrogated by the court and crossed by the oppositors's counsel. The oppositors may present proofs to rebut the ad. administrator's evidence in support of his accounts.

I.

Expenses for the renovation and improvement of the family residence  Repair of the terrace  Repair of the interior of the family home  Renovation of the bathroom  Construction of fence -administration expenses: should be those which are necessary for the management of the estate, for protecting it against destruction or deterioration, and, possibly, for the production of fruits. ...expenses entailed for the preservation and productivity of the estate and its management for purposes of liquidation, payment of debts, and distribution of the residue among the persons entitled thereto. HERE: 5 of 8 heirs consented to the use of the funds of the estate for the repair and improvement of the family home. WHY SPEND FOR HOUSE RENOVATION: It is obvious that the expenses in question were incurred to preserve the family home and to maintain the family's social standing in the community. Obviously, those expenses redounded to the benefit of an the co- owners. They were necessary for the preservation and use of the family residence. As a result of those expenses, the co-owners, including the three oppositors, would be able to use the family home in comfort, convenience and security. II.

      

EXPENSES INCURRED BY LIBRADA DE GUZMAN Salaries of house helper Light Water bills Cost of gas Cost of oil Floor wax Switch nail TC: allowed income of estate to be used for those expenses on the theory that the occupancy of the house by one heir DID NOT DEPRIVE THE OTHER 7 HEIRS FROM LIVING IN IT SC: Personal expenses of an heir, incurring to her benefit, are not reasonable expenses. She occupied the house w/o paying rent, she should use her income for her living expenses while occupying the family residence

III.

Other expenses Stenographic notes expenses - disallowed  Representation expenses (not explained) - disallowed  Expenses during the celebration of 1st death anniversary of the deceased - disallowed:  no connection w/ the care, management and settlement of the decedent's estate Expenses for lawyer's subsistence - allowed  Cost of gift to the physician who attended the testator during his last years - allowed 

IV.

Irrigation Fee P1,049.58 was contested because it appeared to be a duplication of the item as  irrigation fee for crop year 66-67. - allowed because it was not contested that the amount was alloted for irrigation fees to 8 tenants who cultivated the Intan Crop and it was indeed paid by the administrator to the Penaranda Irrigation System

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Summary: Mariano was engaged by one of the heirs (Carlos) to procure the services of an administrator for the estate of one of the other heirs (Baldomero) but Carlos died. So he now claims from the replacement administrator for reimbursement. Court held that Mariano was should claim from the administrator of Carlos or from the estate of Baldomero through a petition to the court or through the current administrator. Facts -Joaquin Martinez Sy-Tiongtay executed his last will -he was engaged in the shipping business -heirs: *children with Chan-Sinnin  Carlos Pabia  Baldomero + *children with Ana Cuanci  Felipa  Manuel  Faustina -Baldomero died after Joaquin died - w/o heirs -Carlos Pabia hired Mariano Escueta - a lawyer - to procure the appointment of an administrator for BALDOMERO's ESTATE and to attend to the settlement of that estate in the CFI -so Mariano incurred expenses to procure administrator and work on the settlement of the estate -Carlos Pabia (the same person who contracted him) was appointed as the administrator of Baldomero's estate -However Carlos died. Leon Sy-Juilliong was appointed as replacement (so new administrator of Baldomero's estate) -Mariano Escueta sued the new administrator of Baldomero's estate for the services he rendered for the settlement of Baldomero's estate LC: dismissed complaint for recovery -the services rendered by the plaintiff were entirely unneccessary WON the services rendered by Mariano are necessary expenses of the estate? -his services - which was rendered to procure the administrator for Baldomero's estate - were necessary:  Baldomero left an estate of about P46k, almost all of which are interest in his father's estate  Executor refused to deliver any of the property to the administrator of the estate  Estate has not been divided and is in the hands of the executory  Question as to who are the heirs of Baldomero -his estate of P46k: it is extremely advisable that an administrator be appointed When an estate is regularly administered in the Court of First Instance, and commissioners appointed before whom claims must be presented within the time fixed in the order, they are by law, with some few exceptions, barred unless so presented. This time may be limited by the court to six months. It is important to the heirs of an estate to know as soon after the death of the intestate as possible what claims exist against it. If they then know what demands are made against it, they have an opportunity to ascertain the facts relating to such demands when evidence concerning their validity can be easily obtained. Unfounded claims in such cases can be more easily defeated than they could if they were presented several years after the death of the intestate. From which estate should he claim?

From the estate of Carlos Pabia >the claim or cause of action arose after the death of Baldomero so it was not a proper claim to be presented to his estate >if it was made w/ Carlos Pabia in his personal capacity: then sue him (kaya lang he's dedz na) >if it was made w/ Carlos Pabia as the administrator of Baldomero's Estate: the contract made between the administrator and the lawyer does not bind the estate to such an extent that the lawyer can maintain an action against it and recover a judgment which is binding upon it. …the creditor has 2 remedies: 1. Prosecute an action against the administrator as an individual - if judgment is rendered against the administrator and is paid by him, the administrator can include the amount paid as an expense of administration in the final account 2. Present a petition in the proceeding relating to the settlement of the estate, 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 >>>whatever course adopted, the heirs and other persons interested in the estate will have a right to inquire into the necessity for making the contract and the value of the work performed by the attorney SO HERE, WHAT MARIANO CAN DO: 1. claim against he person responsible therefor (the representative of Carlos Pabia) 2. Make an application in the proceeding for the settlement of the estate of Baldomero for its allowance and payment (and not claim from the administrator of the estate who just replaced Carlos Pabia) OCCENA V. MARQUEZ Summary: Petitioners prayed for partial payment of their AF since the time they worked for the executor of the estate but the respondent judge, though awarding them with AF, said that the said fees was already the fee they're going to receive for the whole estate proceedings. The Court held that the probate court, though the trustee of the estate, should not act whimsically to deprive due process to the petitioners who should be allowed to present proofs of their claimed AF. Facts: -William Ogan died leaving more than P2M to 7 heirs -the estate executrix, Mrs. Necitas Ogan Occena, had 2 lawyers - Atty. Jesus Occena and Atty. Samuel Occena (husband of the executrix Necitas). They had been representing the estate since 1963 -the 7 heirs decided to enter into a compromise w/ the claimants of the estate: o P220k in cash awarded to Atty. Isabelo Binamira (former executor?), his lawyers and his wife -by 1966, CIR already issued a tax clearance for the estate as settled by the executrix -In 1965, Petitioners filed a MOTION FOR PARTIAL PAYMENT OF ATTORNEY'S FEES of P30k as part of payment of their fees as counsel of the administratrix since 1963 >>>3 of 7 heirs (Lily, William and Ruth) moved to defer consideration of the motion until after the total amounts for the executrix's fees and attorney's fees of her counsel have been agreed upon by all the heirs >>>1966: 5 of 7 (Lily, Necitas, Federico, Liboria, and Nancy) manifested that they had no objection to the release of the P30k as PARTIAL PAYMENT OF ATTORNEY'S FEES, recommend approval of the motion >>> motion was still unresolved -2nd motion for payment of partial attorney's fees >>>deferred: William and Ruth wanted all the instituted heirs to agree IN WRITING on the total attorney's fees >>>MR Filed TC: Judge fixed TOTAL AF from 1963 to 1965 at P20k >>>MR: DENIED + fixed the P20k as the AF for the whole testate proceedings

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-so Petitioners here filed this petition, alleging GADALEJ on part of the judge -defense of Judge Marquez (among others): o it is the duty of respondent Judge not to be very liberal to the attorney representing the executrix, who is at the same time the wife of said counsel and is herself an heir to a sizable portion of the estate, for respondent Judge's duty is to see to it that the estate is administered "frugally," "as economically as possible," and to avoid "that a considerable portion of the estate is absorbed in the process of such division," in order that there may be a worthy residue for the heirs o since petitioners Samuel C. Occeña and Jesus V. Occeña are the husband and father-in-law, respectively, of executrix Necitas Ogan Occeña, the latter cannot be expected to oppose petitioners' claims for attorney's fees, thus leaving the co-executor as the lone party to represent and defend the interests of the estate, Atty. I. V. Binamira, who claims to be coexecutor of the Ogan estate, filed with this Court on July, 1967, a Motion for Leave to Intervene, which was granted in a resolution of August 9, 1967 - but BINAMIRA WAS NO LONGER THE COEXECUTOR. WON the estate is liable for the AF collected by the petitioners? INDIRECTLY -The rule is that when a lawyer has rendered legal services to the executor or administrator to assist him in the execution of his trust, his attorney's fees may be allowed as expenses of administration. -The estate is, however, not directly liable for his fees, the liability for payment resting primarily on the executor or administrator. If the administrator had paid the fees, he would be entitled to reimbursement from the estate. -The procedure to be followed by counsel in order to collect his fees is to request the administrator to make payment, ...and should the latter fail to pay, either to (a) file an action against him in his personal capacity, and not as administrator, or (b) file a petition in the testate or intestate proceedings asking the court, after notice to all the heirs and interested parties, to direct the payment of his fees as expenses of administration. Whichever course is adopted, the heirs and other persons interested in the estate will have the right to inquire into the value, of the services of the lawyer and on the necessity of his employment. HERE: Petitioners filed petition DIRECTLY to the probate court WON Probate court's act of limiting the AF was proper (based on the records of the case)? NO -he probate court acts as a trustee of the estate, and as such trustee it should jealously guard the estate under administration and see to it that it is wisely and economically administered and not dissipated. This rule, however, does not authorize the court, in the discharge of its function as trustee of the estate, to act in a whimsical and capricious manner or to fix the amount of fees which a lawyer is entitled to without according to the latter opportunity to prove the legitimate value of his services. -HERE: 5 of the 7 already consented to the granting of partial payment of AF. The other 2 did not disagree, they just wanted the payment to be recorded and agreed to in writing. -VIOLATION OF DUE PROCESS: should have allowed petitioners to adduce evidence to prove what is the proper amount of AF *BUT payment of partial AF not granted because there were allegations made by petitioners on the labor, time and trouble involved in their legal undertaking which is STILL SUBJECT TO A FORMAL JUDICIAL INQUIRY WON ATTY. BINAMIRA SHOULD BE GUILTY OF INDIRECT CONTEMPT FOR FALSE AVERMENTS IN THE COMPLAINT IN INTERVENTION? YES. -note that 21 instances were cited here as false averments made by Atty. Binamira

We find no rule of law or of ethics which would justify the conduct of a lawyer in any case, whether civil or criminal, in endeavoring by dishonest means to mislead the court, even if to do so might work to the advantage of his client. The conduct of the lawyer before the court and with other lawyers should be characterized by candor and fairness. It is neither candid nor fair for a lawyer to knowingly make false allegations in a judicial pleading or to misquote the contents of a document, the testimony of a witness, the argument of opposing counsel or the contents of a decision. Before his admission to the practice of law, he took the solemn oath that he will do no falsehood nor consent to the doing of any in court, nor wittingly or willingly promote or sue any false, groundless or unlawful suit, and conduct himself as a lawyer with all good fidelity to courts as well as to his clients. We find that Atty. Binamira, in having deliberately made these false allegations in his pleadings, has been recreant to his oath. D-10 RULE 86 CASES SALONGA V. PASCUAL Summary: Salonga et al Law offices were engaged by OLIVIA PASCUAL to be her lawyer in the settlement of the estate of DONA ADELA Pascual and agreed that the retainer fee be 3% of the WHOLE ESTATE. Salonga et al filed for provisional recognition of their AF but Notice was ony given to OLIVIA, out of the 19 other heirs and 4 other institutions who were devicees and legatees in the will of Dona Adela. Court held that since the claim was against the estate as an administration expense, notice and hearing should be conducted so that the parties interested may determine the necessity and value of the services rendered by the law firm. Facts: -2 estates involved: 1. Don Andres' Estate - INTESTATE 2. Dona Adela's Estate - Testate -Don Andres and Dona died w/o children so nephews and nieces claim to be their heirs. -Don Andres died first. -OLIVIA and HERMES Pascual, the acknowledged natural children of ELIGIO (Don Andres' brother) claimed to be heirs of Don Andres, and Dona Adela supported their claims. However, a compromise agreement was entered into by the other heirs wherein 3/4 would go to Dona Adela and the other 1/4 goes to the heirs , w/o prejudice to the claims of the OLIVIA and HERMES …claims subsequently DENIED -Dona Adela died leaving behind a will:  OLIVIA as the executrix and principal beneficiary  Other legacies and devices -OLIVIA engaged services of petitioner law firm wherein they agreed that the professional fee would be: "3% of the total gross estate as well as the fruits thereof based on the court approved inventory of the estate. Fruits shall be reckoned from the time of [Olivia Pascual's] appointment as executrix of the estate. The 3% final fee shall be payable upon approval by the court of the agreement for the distribution of the properties to the court designated heirs of the estate." -so petitioners in behalf of Olivia commenced a petition for probate of Dona Adela's last will which was opposed (oppositor showed a different will) -PROBATE allowed will showed by Olivia -Petitioner filed a NOTICE OF ATTORNEY's LIEN w/ court COURT: atty's lien noted as a lien that must be satisfied chargeable to the share of OLIVIA PASCUAL >>>also ordered that notice be given, requiring all the persons having claims for money against Dona Adela to file claims w/n 6m from Nov 1993. -petitioner filed MOTION TO ANNOTATE ATTORNEY's LIEN

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-January 1994, Intestate court approved compromise agreement on the estate of DON ANDRES, gave 1/4 to the other heirs of Don Andres then 3/4 to Dona Adela + award of AF to Atty. Jesus Santos -Petitioner filed MOTION FOR WRIT OF EXECUTION FOR THE PARTIAL PAYMENT EXECUTION OF ATTORNEY'S LIEN - based amount claimed from the Motion to submit project partition filed by Olivia where alleged gross appraised value of Dona Adela was P39,936, 567 (which includes 3/4 of Don Esteban's estate) >>>OPPOSED by OLIVIA: 1. she should be charged, not the estate 2. NOTICE should be given to several legatees des9gnated by Dona Adela 3. Premature claim as the intestate proceedings (of Don Andres) not yet done, to the prejudice of the other heirs of Don Andres entitled to 1/4 of the estate PROBATE COURT: deny motion for writ of execution >prematurely filed as proceedings for determination fo Don Andres estate not yet done -NOV 1994: Olivia filed a MOTION TO DECLARE GENERAL DEFAULT AND DISTRIBUTION OF TESTAMENTARY DISPOSITIONS W/ CANCELLATION OF ADMINISTRATOR'S BOND: 1. No creditors even after due notice given 2. Intestate proceedings terminated 3. Estate taxes already paid, with corresponding certificate from BIR 4. 2 of the conjugal properties of spouses already partitioned among heirs in accordance with the compromise agreement >>>Petitioner prayed for annotation of their lien on the properties of Dona Adela and for the partial execution for the satisfaction of the attorney's lien COURT: DISALLOWED LIEN: prematurely filed - no exact estate to be inventoried and re-appraised yet bulk has not yet been turned over tot eh executrix >>>appealed to CA CA: affirm LC 1. Claim should only be from Olivia's share, not the whole estate 2. The said payment shall be given upon approval of the court

WON a lawyer can claim against estate? YES, Indirectly -restated rule in Occena GR: it is the executor or administrator who is primarily liable for AF due to the lawyer who rendered legal services for the executor or administrator in relation to the settlement of the estate >>>administrator, in turn, may just seek reimbursement from the estate IF IT CAN BE SHOWN THAT THE SERVICES OF THE LAWYER REDOUNDED TO THE BENEFIT OF THE ESTATE X: if the executor/administrator refuses to pay 1. Claim from executor/administrator in his PERSONAL CAPACITY 2. File a petition in the testate or intestate proceedings, asking the court to direct the payment of attorney's fees as an expense of administration WITH NOTICE TO ALL THE HEIRS AND INTERESTED PARTIES TO BE MADE SO AS TO ENABLE THESE PERSONS TO INQUIRE INTO THE VALUE OF THE SERVICES OF THE LAWYER AND ON THE NECESSITY OF HIS EMPLOYMENT -AF as ADMINISTRATION EXPENSE: Administration expenses include attorney's fees incurred in connection with the administration of the estate. It is an expense attending the accomplishment of the purpose of administration growing out of the contract or obligation entered into by the personal representative of the estate, and thus the claim for reimbursement must be superior to the rights of the beneficiaries. -when estate SHOULD NOT BE CHARGED W/ AF:  if the services of the lawyer is merely to protect the interests of particular persons/heirs and not the estate



If the administrator brings on litigation for the deliberate purpose of defrauding the legitimate heirs and for his own benefit -NOTICE to all the heirs and interested parties always needed WON the AF should be obtained solely from share of OLIVIA? NO -Jurisprudence provides that AF may be obtained from share of other heirs - from the estate WON there is sufficient notice given to the heirs and interested parties? NO - Notice of Attorney's Lien only seeks to serve notice of the pendency of the claim for attorney's fees, and not the payment of such fees itself. On its own, the Notice of Attorney's Lien cannot serve as the basis for the Probate Court to authorize the payment to petitioner of attorney's fees. -The filing of the Notice of Attorney's Lien and the qualificatory character of the rulings thereon, do not preclude the resort to the mode of recovery against the estate as authorized by jurisprudence. -DONA ADELA has 19 other heirs designated and 4 different institutions as recipients of devices or legacies BUT ONLY OLIVIA was served w/ a copy of the MOTION FOR WRIT OF EXECUTION -WHY NOTICE NEEDED:  The requisite notice to the heirs, devisees, and legatees is anchored on the constitutional principle that no person shall be deprived of property without due process of law.40The fact that these persons were designated in the will as recipients of the testamentary dispositions from the decedent establishes their rights to the succession, which are transmitted to them from the moment of the death of the decedent.41 The payment of such attorney's fees necessarily diminishes the estate of the decedent, and may effectively diminish the value of the testamentary dispositions made by the decedent. These heirs, devisees, and legatees acquire proprietary rights by reason of the will upon the moment of the death of the decedent, incipient or inchoate as such rights may be. Hence, notice to these interested persons of the claims for attorney's fees is integral, so as to allow them to pose any objections or oppositions to such claim which, after all, could lead to the reduction of their benefits from the estate  NO INTENT TO HOLD FULLBLOWN MEETING: The failure to notify the other heirs, devisees or legatees, to the estate of Doña Adela likewise deprives these interested persons of the right to be heard in a hearing geared towards determining whether petitioner was entitled to the immediate payment of attorney's fees. Notably, petitioner, in filing its Motion for Writ of Execution, had initially set the hearing on the motion on 29 April 1994, but one day prior to the scheduled hearing, gave notice instead that the motion was being submitted for the consideration of the Probate Court without further argument.42 Evidently, petitioner did not intend a full-blown hearing to ensue on whether it was entitled to the payment of attorney's fees. Yet the claim for attorney's fees is hardly incontrovertible.  That the Retainer Agreement set the attorney's fees at three percent (3%) of the gross estate does not imply that the basis for attorney's fees is beyond controversy. Attorney's fees in this case are in the nature of administration expenses, or necessary expenses in the first place. Any party interested in the estate may very well, in theory, posit a myriad of objections to the attorney's fees sought, such as for example, that these fees were not necessary expenses in the care, management, and settlement of the estate. Whether or not such basis for valid objections exists in this case is not evident, but the fact remains that all the parties interested in the estate, namely the other devisees and legatees, were deprived of the opportunity to raise such objections as they were not served notice of the Motion for Writ of Execution. WON AF MAY ALREADY BE COLLECTED? PREMATURE Needs: 1. Approval of the final ascertainment of the value of the gross total estate of Dona Adela 2. Approval by the Probate court of the agreement for the distribution of the properties 47 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

-ADVANTAGES OF FILING CLAIM AGAINST THE ESTATE ITSELF (as administration expenses): claim for reimbursement is superior to the right of beneficiaries to the estate, and as such, there is need to finally determine the respective shares of the beneficiary before AF in the nature of administration expenses may be paid out -DISADVANTAGE: cannot be deemed binding n the estate, and has to await for the concurrence of the conditions of the retainer agreement to satisfy claim So what needed: notice to the heirs, devices, legatees + hearing to focus on the value of services rendered by the petitioner and the necessity of engaging petitioner as counsel Disposition: mandate the Probate Court to treat the Motion for Writ of Immediate Execution as a petition seeking a court order to direct the payment of attorney's fees as expenses of administration, but subject to the condition that petitioner give due notice to the other designated devisees and legatees so designated in the will of the claim prior to the requisite hearing thereon. Petitioner may as well seize such opportunity to formally amend or reconfigure its motion to a petition to direct payment of attorney's fees. ESTATE OF OLAVE VS. REYES (1983) Summary: Administrators of estate of decedent entered into an amicable settlement with a creditor company who wanted to collect from the estate of the decedent in a separate proceeding. This was done w/o prior approval of the probate court. SC held that prior approval of the probate court needed because (1) the claim of the creditors is a claim against the estate; and (2) probate court already acquired exclusive jurisdiction over the case, to the exclusion of the other court) Facts -there's already a special proceeding for the settlement of the estate of Amadeo Matute Olave in the Manila court. There's an order from this court providing that the co-administrators should first secure the probate court's approval before entering into any transaction involving the 17 titles of the estate -Southwest Agricultural Marketing Corporation (SAMCO) filed Civil case for collection of debt and attorney's fees in Davao court against the co-administrators of the estate of Amadeo Olave -even after order from the probate court to secure first its approval, SAMCO and the co-administrators entered into an AMICABLE SETTLEMENT wherein one of the 17 titles of the estate was ceded to SAMCO as payment for its claim. This was done w/o notice and approval of the probate court -DAVAO COURT: approved amicable settlement WON SAMCO PROPERLY FILED CLAIM IN A SEPARATE PROCEEDING? NO 1. R87.1: "no action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; . . ." 2. Claim of Samco could only be pursued by filing it in the administration proceedings and w/n the prescribed period, or else barred forever 3. Why present claims in the probate court: to protect the estate of deceased persons. That way, the executor or administrator will be able to examine each claim and determine whether it is a proper one which should be allowed. Further, the primary object of the provisions requiring presentation is to apprise the administrator and the probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or by pro-rata portion in the due course of the administration, inasmuch as upon the death of a person, his entire estate is burdened with the payment of all of his debts and no creditor shall enjoy any preference or priority; all of them shall share pro-rata in the liquidation of the estate of the deceased.

4. 5.

Manila Probate court already has exclusive jurisdiction over the proceeding and the properties claimed: R73.1 The law is clear that where the estate of the deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of the probate court.

SANTOS V. MANARANG Summary: The deceased, in his last will and testament, acknowledged his indebtedness to Santos so Santos did not file any claim against estate until the Committee convened to hear the claims had already rendered a report to the court. Court held that even if a claim is recognized in a will, the claim should still be presented to the Court to be verified and subject to inquiry of interested parties and this should be done after the period given by the lower court. NOTE DISSENT wants to allow it because the claim may be deemed a legacy in the will (and the will of the testator should be primordial) and that since the period should have been counted from the time the notice requirements had been complied with – and no compliance here shown – then the period for Santos to file his claim has not lapsed yet (also considering that there is no final accounting yet and the proceedings are still ongoing), and thus the probate court should have allowed such claim. Facts: -Don Lucas de Ocampo died on Nov 1906 but left a will -in his will, he recognized his indebtedness to ISIDRO SANTOS amounting to P7,454, to wit: "I also declare that I have contracted the debts detailed below, and it is my desire that they may be religiously paid by my wife and executors in the form and at the time agreed upon with my creditors." -will was probated in July 15, 1907. Widow was made temporary administatrix until the appointment of COSME NAVAL as the executor (as named in the will) -JULY 23, 1907: Committee of appraisal was constituted, with PEDRO ABAD SANTOS & MARCOS TANCUACO named as members. Probate court ordered that notice to creditors be published by the Committee of appraisal.  On notice given: it provided that claims should be presented w/n 6 months from date of notice at the dwelling o PEDRO A. SANTOS -September 1907: NAVAL was removed as executor, replaced by LEANDRA MANARANG (wife) -December 3: PEDRO ABAD SANTOS RESIGNED from the committee to become the attorney for the estate, replaced by DONATO ITTURALDE -January 1908: Court formally ordered that ITTURALDE replace ABAD SANTOS and re-ordered the committee to post a notice at the main door of the courthouse, and in 3 public places, and publication in "El Imparcial" -July 14, 1908: Committee filed a report (which states that the claims presented were those from the date of the first publication which is July 1907 -July 1909: Isidro Santos filed an application to reopen the sessions of the committee and permit him to present his claim as mentioned in the will TC: DENY by reason of lapse of time >MR + motion for an order to direct executor to pay the petitioner in pursuance to testator's directions (in the wil): DENY by reason of lapse of time ISSUES: WON there was proper publication (thus, proper notice)? MAIN DECISION Yes there was proper publication

DISSENT No proper publication

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"the record affirmatively shows that the committee did make the publication required by law." EVIDENCE: an AFFIDAVIT of the Publisher of "El Imparcial" setting out that the notice to creditors attached to the affidavit and signed by PEDRO ABAD SANTOS and MARCOS TANCUACO, dated July 1907 was published 3 weeks from July 25 to August 16



Publication not sufficiently

proven:

o

No proof of posting at the main door and on 3 public places As admitted by the  committee in their July 1908 report, the claims they presented were from the time of the first publication - from JULY 1907 But this  publication does not show that The  newspaper was daily, biweekly… Day of  the week or month when publication made The  notice was published 3 weeks successively (once each week for 3 successive weeks) But the court in January 1908 re-ordered the committee to give out new notices because the first notice specifies that the claims be presented before the former committee member (ABAD SANTOS), who is now the counsel for the estate No proof that notices were given out pursuant to the January 1908 order; the probate court merely believed that such notice was made, and as such, ordered the administratrix to present her inventory by August of that year, on the theory that by July, all the claims against the estate has been presented to the committee

WON the indebtedness acknowledged in the will is subject to the committee's authority? MAIN DECISION

DISSENT

YES

YES but no express provision that these claims should be presented before the committee

There is nothing in the will to indicate that any or all of the plaintiff's claims are… contingent claim claims for the possession of or title to real property damages for injury to a person or property, real or personal For the possession of specified articles of personal property …so proper to be considered by the committee

-No statute expressly requiring the presentation of debt already acknowledged in the will before the committee Provision for appointment of committee authorized to hear classes of claims does not require expressly that a creditor should present his claim before it Although there's a section which provides that if the creditor fails to present his claim w/n the time provided by law, then it is barred, there is no express provision requiring that the creditor file his claim

before committee -Only certain claims need to be presented to the committee and thus, only those certain claims are barred if not exhibited; …committee is authorized to take jurisdiction over those claims only which survive against the executor or administrator but such claims are not defined in the rules …therefore, it was the intention of the law to restrict the jurisdiction of the committee The debt is a claim w/n the meaning of the law

It is a claim which survives against the executors/administrator that needs to be exhibited before the committee

It is not a claim. It's a debt, period. CLAIM: a debt in embryo, mere evidence of a debt and must pass through the process prescribed by law before it develops to what is properly called a debt DEBT: a claim which has been favorably passed upon by the highest authority to which it can in law be submitted and has been declared to be a debt The will should be paramount!

WON the claim should be presented before the committee even if the will expressly acknowledges it? (EXPOUND THE LAST ITEM ON TABLE OF #2) MAIN DECISION Testator cannot put on his will provisions which are contrary to law or public policy 2 restrictions imposed by law upon the power of the testator to dispose of his property: a. his estate would be liable to all obligations b. he cannot dispose the legal portion due to his heirs by force of law Needs to be presented and verified to prevent o Alienation of part of estate by means of a bequest under a guise of debt o Payment of amounts which are not due (the amount specified in the will may be more than the actual amount due) o Payment of amounts which the testator only thought he owed (fictitious debt)

DISSENT in giving effect to the will, the intention of the testator as expressed in the will shall be fully and punctually observed. If by the use of clear and certain, his will explains itself, and all the court can do is to give it effect. -a will is not primarily evidence of anything; it is the thing itself. It is not much the evidence of what the testator did or intended to do; it is the testator himself. - so not a PN, not an evidence of indebtedness Subjecting the provisions of the will to the approval of the committee gives the committee the power to annul an express and mandatory provision of a will which is as binding as a provision giving legacy… There is no defense that payment was already made by the estate. And the claim was not contested There is, in effect, already an admission on the part of the testator that he owed such an

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The direction in the will for the executor to pay all just debts does not mean that he shall pay them without probate. There is nothing in the will to indicate that the testator in tended that his estate should be administered in any other than the regular way under the statute, which requires "all demands against the estates of the deceased persons," "all such demands as may be exhibited," etc. The statute provides the very means for ascertaining whether the claims against the estate or just debts. It is not a legacy, because a legacy is an act of pure beneficience and can only be claimed after all the debts have been paid; here, it is for a consideration - it is a debt

amount from SANTOS, which frees Santos the burden of finding evidence to support the alleged debt. The court therefore equates Santos with creditors who has not a scrap of written evidence to support his claim >>>The burden of the estate to show payment was made affirmatively

OTHER Doctrinal stuff that I don't know where to put: On Statute of nonclaims: It cannot be questioned that thus section supersedes the ordinary limitation of actions provided for in chapter 3 of the Code. It is strictly confined, in its application, to claims against the estate of deceased persons, and has been almost universally adopted as part of the probate law of the United States. It is commonly termed the statute of nonclaims, and its purpose is to settle the affairs of the estate with dispatch, so that residue may be delivered to the persons entitled thereto without their being afterwards called upon to respond in actions for claims, which, under the ordinary statute of limitations, have not yet prescribed. The object of the law in fixing a definite period within which claims must be presented is to insure the speedy settling of the affairs of a deceased person and the early delivery of the property of the estate in the hands of the persons entitled to receive it. (Estate of De Dios, 24 Phil. Rep., 573.) Due possibly to the comparative shortness of the period of limitation applying to such claims as compared with the ordinary statute of limitations, the statute of nonclaims has not the finality of the ordinary statute of limitations. It may be safely said that a saving provision, more or less liberal, is annexed to the statute of nonclaims in every jurisdiction where is found. In this country its saving clause is found in section 690, which reads as follows: On application of a creditor who has failed to present his claim, if *made within six months after the time previously limited, or, *if a committee fails to give the notice required by this chapter, and such application is made before the final settlement of the estate, the court may, for cause shown, and on such terms as are equitable, renew the commission and allow further time, not exceeding one month, for the committee to examine such claim, in which case it shall personally notify the parties of the time and place of hearing, and as soon as may be make the return of their doings to the court. If the committee fails to give the notice required, that is a sufficient cause for reconvening it for further consideration of claims which may not have been presented before its final report was submitted to the court. Disposition: there must be a hearing sometime before some tribunal to determine the correctness of the debts recognized in the wills of deceased persons. This hearing, in the first instance, can not be had before the court because the law does not authorize it. Such debtors must present their claims to the committee, otherwise their claims will be forever barred.

D-11 ACTION BY AND A GAINST EXECUTORS AND ADMINISTRATORS Rule 87: Actions By and Against Executors and Administrators Section 1. Actions which may and which may not be brought against executor or administrator. No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him. Section 2. Executor or administrator may bring or defend actions which survive. For the recovery or protection of the property or rights of the deceased, an executor or administrator may bring or defend, in the right of deceased, actions for causes which survive. Section 3. Heir may not sue until shall assigned When an executor or administrator is appointed and assumes the trust, no action to recover the title or possession of lands or for damages done to such lands shall be maintained against him by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee or until the time allowed for paying debts has expired. Section 4. Executor or administrator may compound with debtor. Within the approval of the court, an executor or administrator may compound with the debtor of the deceased for a debt due, and may give a discharge of such debt on receiving a just dividend of the estate of the debtor. Section 5. Mortgage due estate may be foreclosed. A mortgage belonging to the estate of a deceased person, as mortgagee or assignee of the right or a mortgage, may be foreclosed by the executor or administrator. Section 6. Proceedings when property concealed, embezzled, or fraudulently conveyed. If an executor or administrator, heir, legatee, creditor or other individual interested in the estate of the deceased, complains to the court having jurisdiction of the estate that a person is suspected of having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased, or that such person has in his possession or has knowledge of any deed, conveyance, bond, contract, or other writing which contains evidence of or tends or discloses the right, title, interest, or claim of the deceased, the court may cite such suspected person to appear before it any may examine him on oath on the matter of such complaint; and if the person so cited refuses to appear, or to answer on such examination or such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court. The interrogatories put any such person, and his answers thereto, shall be in writing and shall be filed in the clerk's office. Section 7. Person entrusted with estate compelled to render account. The court, on complaint of an executor or administrator, may cite a person entrusted by an executor or administrator with any part of the estate of the deceased to appear before it, and may require such person to render a full account, on oath, of the money, goods, chattels, bonds, account, or other papers belonging to such estate as came to his possession in trust for such executor or administrator, and of his proceedings thereon; and if the person so cited refuses to appear to render such account, the court may punish him for contempt as having disobeyed a lawful order of the court. Section 8. Embezzlement before letters issued -

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If a person, before the granting of letters testamentary or of administration on the estate of the deceased, embezzles or alienates any of the money, goods, chattels, or effects of such deceased, such person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate. Section 9. Property fraudulently conveyed by deceased may be recovered. When executor or administrator must bring action. When there is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration, and the deceased in his lifetime had conveyed real or personal property, or a right or interest therein, or an debt or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or had so conveyed such property, right, interest, debt or credit that by law the conveyance would be void as against his creditors, and the subject of the attempted conveyance would be liable to attachment by any of them in his lifetime, the executor or administrator may commence and prosecute to final judgment an action for the recovery of such property, right, interest, debt, or credit for the benefit of the creditors; but he shall not be bound to commence the action unless on application of the creditors of the deceased, not unless the creditors making the application pay such part of the costs and expenses, or give security therefor to the executor or administrator, as the court deems equitable. Section 10. When creditor may bring action. Lien for costs. When there is such a deficiency of assets, and the deceased in his lifetime had made or attempted such a conveyance, as is stated in the last preceding section, and the executor or administrator has not commenced the action therein provided for, any creditor of the estate may, with the permission of the court, commence and prosecute to final judgment, in the name of the executor or administrator, a like action for the recovery of the subject of the conveyance or attempted conveyance for the benefit of the creditors. But the action shall not be commenced until the creditor has filed in a court a bond executed to the executor or administrator, in an amount approved by the judge, conditioned to indemnify the executor or administrator against the costs and expenses incurred by reason of such action. Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable. Where the conveyance or attempted conveyance had been made by the deceased in his lifetime in favor of the executor or administrator, the action which a credit may bring shall be in the name of all the creditors, and permission of the court and filing of bond as above prescribed, are not necessary. PAULA V. ECSAY Summary: Lessee of Hacienda Puyas which was entitled too 10% of the produce from the Hacienda claims from the administrator. Court held that the 3P may claim against the administrator, who is under the court’s direct supervision, but administrator can’t claim by mere motion against 3P. *Claims against administrator may be presented in the Administrative proceeding but not against 3P Facts: -JOSE ECSAY(lessee) and RUFINA PAULA (Administratrix) entered a lease agreement wherein Administratrix was obliged to deliver 10% of the produce of the Hacienda Puyas to Ecsay, amended to close until 1942-1943 harvest. This was approved by the court. -ECSAY claimed from the Administratrix 10% -Administratrix PAULA opposed: 1. it cannot be presented as a claim because the administration proceedings were commenced since 1932 and the claim (made 1954) cannot be presented under R87.5 2. The probate court has no jurisdiction to entertain a claim against the adminsitratrix TC: claim was properly filed; claim was an offshoot of a contract approved by the probate court

WON Probate court has jurisdiction over the claim? YES - We do not have probate courts dedicated to the trial of probate cases alone; our courts of first instance have jurisdiction of probate proceedings, such as administration and distribution and guardianship, jointly with the civil or criminal actions, and when taking cognizance of probate cases they do not hold court or sessions at specified places, or periods, or terms, and their power over the same is not separate and distinct, as is the case in common law countries where the same court may at one time sit as a court of common pleas, at another as a probate court, and still at another as a court of claims. - the practice has been for demands against administrators (not by those against third parties) to be presented in the court of first instance where the special proceeding of administration is pending, if the demand has relation to an act of administration and in the ordinary course thereof. - administration is under the direct supervision of the court and the administrator is subject to its authority. -When the demand is in favor of the administrator and the party against whom it is enforced is a third party, not under the court's jurisdiction, the demand can not be by mere motion by the administrator, but by an independent action against the third person. For obvious reasons, the demand can not be made because third persons not under the jurisdiction of the court are involved. -HERE: 1. Lease contract was entered by the Administratrix w/ court approval in the ordinary coure of administration 2. the purpose of the claim is to make the Administratrix comply with the obligations contracted in the course of administration w/ the court’s consent and approval 3. court has jurisdiction of the administrator so far as the property and the contract are concerned 4. court acquired jurisdiction over 3P when he submitted himself to the court and filed the claim -though he could file an independent action, not prohibited from doing so 5. Estate would only be responsible for the amount which the Administratrix is legally entitled to receive as rentals; not for the excess of the amount collected over and above rentals due under the lease – Administratrix would be liable for the excess BAYOT V. ZURBITO Summary: the decedent in whose behalf the parties here are acting had dealt with each other during their lifetime. The plaintiff in this case filed a claim against the defendant, and defendant filed a claim for setoff. The commission disallowed the claim of defendant, and also of the plaintiff saying it had no jurisdiction over the claims. Court held that executor can independently commence an action to recover any COA which accrued to decedent during his lifetime. Facts: -FRANCISCO BAYOT during his lifetime, made business contracts with LUCAS ZURBITO during their lifetime. -ZURBITO allegedly owed BAYOT a debt worth almost P10k. Bayot’s Administratrix filed a claim against ZURBITO’s estate, which was allowed -ZURBITO’s estate now wants to claim against BAYOT for alleged amounts belonging to ZURBITO when BAYOT acted as manager for ZURBITO’s ranch. The committee on claims of the Bayot estate disallowed the same, was appealed by Zurbito but SC denied it with finality. -Since the Zurbito claim was denied, counterclaim (this is weird, di ko alam san ung counterclaim…) by BAYOT estate against ZURBITO was denied by the committee in the estate of Bayot also disallowed. BAYOT’s Administratrix did not appeal the decision so it was deemed final WON the committee on appraisal of the estate of BAYOT had jurisdiction over counterclaim? YES - A creditor who presents a claim against an estate submits himself to the jurisdiction of the committee,

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and the circumstance that his claim is found to be without merit in no wise defeats the authority of the committee to allow the set-off against him. WON the claim by Estate of Bayot is barred by res judicata? NO -decision does not exhibit the requisites essential to create the bar of res judicata: not judgment on the merits - The action of the committee on claims in the estate of Francisco Bayot was expressly based upon the idea that the jurisdiction of the committee to allow the set-off in favor of said estate was destroyed by the disallowance of the principal claim presented by Zurbito against the Bayot estate; and the Court of First Instance merely held, as this court also held, that the claim could not be allowed in the Court of First Instance because no appeal had been taken. In neither tribunal was any consideration paid to the merits of the claim; and no court has ever passed upon this point. ON the correct interpretation of Section 696, NCC: "Claims in favor of the estate and against a creditor who presents a claim for allowance against the estate shall be barred, unless so presented by the executor or administrator as an offset." - by failing to appeal from the action of the committee, the plaintiff was precluded from relying on this claim as an offset in the Court of First Instance in that proceeding. The court was not called upon to decide whether an independent action could be maintained. "SEC. 701. An Executor or Administrator may sue. - Nothing in this chapter shall prevent an executor or administrator from commencing and prosecuting an action commenced by the deceased in his lifetime, for the recovery of a debt or claim, to final judgment, . . -evidently recognizes the right of an executor or administrator, not only to continue the prosecution of an action already begun, but also to institute an action upon a cause which accrued in the lifetime of the deceased but which had not been made the subject of action by him. This of course supposes that the cause of action is such as to have survived to the estate. - Section 701 supplies general authority for the institution of an action by an executor or administrator upon any claim, in the nature of a debt, which accrued in the lifetime of the decedent; and the exception made in the opening words of Section 701 is such as to give absolute precedence to the rule therein expressed over anything to the contrary in Section 696 or any other part of chapter 38. In other words the provisions of Section 701 necessarily overrule so much of section 696 as purports to bar absolutely all claims in favor of an estate which are not made effective as offsets. - the claim on which this action is based is not barred by the failure of the plaintiff to prosecute it with effect as an offset in the former proceeding; and inasmuch as the judgment entered in that proceeding cannot, for reasons already stated, be considered binding as res judicata, the result is that the plaintiff is entitled to be heard on the merits in this action. CABUYAO V. CAGBAG Summary: the “lone compulsory heir” of the decedent spouses adjudicated upon himself the estate of his parents but since the title to the land (and occupation to some of it) were still with his uncle and cousins, he filed case against them. The defense of his uncles and cousins is that he has no legal capacity to use, he having been not yet declared as the sole heir. Court held that no need for judicial declaration in order for him to exercise the COA. An allged heir has right to assert COA, though not yet judicially declared as an heir. Facts: -PRUDENCIO and DOMINGA died (though not the same time) and left 11 parcels of land -their alleged only son, DAMASO adjudicated the 11 parcels to himself pursuant to R74.1 (had affidavit of extrajudicial adjudication in his favor)

-however, the corresponding TCTs of the 11 parcels cannot be issued because the original owner’s duplicate certificates were with his uncle, who was, with his cousins, unlawfully occupying the said property -he filed case against uncle cousins -MTD: no capacity to sue, not having been judicially declared lone compulsory heir -granted by lower court WON a judicial declaration as lone compulsory heir is required for the plaintiff to have COA to recover properties in dispute and to quiet his alleged title thereto? NO -R74.1 -requisites under R74.1: 1. decedents left no debts 2. that the heirs and legatees are all of age, or the minors are represented by their judicial guardians *if no creditors claim 2 years after the death of the decedents, then presumed that no debts - the title to property owned by a person who dies intestate passes at once to his heirs. Such transmission is, under the present law, subject to the claim of administration and the property may be taken from the heirs for the purposes of paying debts and expenses, but this does not prevent the immediate passage of the title, upon the death of the intestate, from himself to his heirs. - There is no legal precept or established rule which imposes the necessity of a previous legal declaration regarding their status as heirs to an intestate estate on those who, being of age and with legal capacity, consider themselves the legal heirs of a person, in order that they may maintain an action arising out of a right which belonged to their ancestor MARABILES V. QUITO Summary: Plaintiff filed case against the heirs of the deceased (who was named as the transferee of the title claimed by the plaintiff) but as a defense, the defendants argued that they were not yet declared as the heirs of the deceased, thus cannot be sued. Court held that no judicial declaration of heirship necessary to be made liable… Facts: -Severina Marabilles (probably the wife of Patricio) filed a complaint for recovery of a parcel of land in Camarines Sur against Alejandro Quito and Aida Quito (father and daughter of deceased who was named the transferee of the property in question). -allegations: the title which was originally ifo Patricio Marabilles was fraudulently issued in the name of Guadalupe Saralde (wife and mother of defendants) by Alejandro Quito (defendant) and had it registered in the former’s name -MTD: 1) plaintiffs had no capacity to sue; 2) no COA; 3) prescription -TC: granted MTD: 1) lack of judicial declaration of heirship ifo Severina (Patricio died, no judicial declaration that she and her children were the heirs) = lack of capacity to sue 2) no COA: Alejandro and Aida were also not yet declared as the heirs of Guadalupe in whose favor the title was transferred 3) prescription: the action already prescribed: registration was notice to the whole world, started counting from date of registration WON the TC erred in ruling ifo Quitos? NO 1. The plaintiffs had legal capacity to sue -The right to assert a cause of action as an heir, although he has not been judicially declared to be so, if duly proven, is well settled in this jurisdiction. - the property of a deceased person, both real and personal, becomes the property of the heir by the mere fact of death of his predecessor in interest, and as such he can deal with it in precisely the same

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way in which the deceased could have dealt, subject only to the limitations which by law or by contract may be imposed upon the deceased himself -There is no legal precept or established rule which imposes the necessity of a previous legal declaration regarding their status as heirs to an intestate on those who, being of age and with legal capacity, consider themselves the legal heirs of a person, in order that they may maintain an action arising out of a right which belonged to their ancestor 2. There is COA against defendants though not yet judicially declared as heirs -to determine the sufficiency of a cause of action on a motion to dismiss, only the facts alleged in the complaint should be considered - it appears in the complaint that Guadalupe Saralde is the wife of Alejandro Quito, the defendant, and as said Guadalupe has already died, under the law, the husband and his daughter Aida are the legal heirs. We have already said that in order that an heir may assert his right to the property of a deceased, no previous judicial declaration of heirship is necessary. 3. NO PRESCRIPTION YET - While legally the registration of real property serves as a constructive notice on which an action based on fraud may be predicated, however, this cannot be invoked in the present case, for there is an averment in the complaint that the issuance of such title has been accomplished by defendant Alejandro Quito through fraud, deceit and misrepresentation and not through a valid and voluntary transfer. - when a person through fraud succeeds in registering the property in his name, the law creates what is called "constructive trust" in favor of the defrauded party and grants to the latter a right to vindicate the property regardless of the lapse of time. ASSIGNMENT N. 6: PAY MENT OF THE DEBITS O F THE ESTATE Rule 88 Payment of the Debts of the Estate Section 1. Debts paid in full if estate sufficient. - If, after hearing all the money claims against the estate, and after ascertaining the amount of such claims, it appears that there are sufficient assets to pay the debts, the executor or administrator pay the same within the time limited for that purpose. Section 2. Part of estate from which debt paid when provision made by will. - If the testator makes provision by his will, or designates the estate to be appropriated for the payment of his debts, the expenses of administration, or the family expenses, they shall be paid according to the provisions of the will; but if the provision made by the will or the estate appropriated, is not sufficient for that purpose, such part of the estate of the testator, real or personal, as is not disposed of by will, if any shall be appropriated for that purpose. Section 3. Personalty first chargeable for debts, then realty. - The personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and expenses; and if said personal estate is not sufficient for tat purpose, or its sale would redound to the detriment of the participants for the estate, the whole of the real estate not dispose of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor or administrator, after obtaining the authority of the court therefor. Any deficiency shall be met by contributions in accordance with the provisions of section 6 of this rule. Section 4. Estate to be retained to meet contingent claims. - If the court is satisfied that a contingent claim duly filed is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute, or if the estate is insolvent, sufficient to pay a portion equal to the dividend of the other creditors.

Section 5. How contingent claim becoming absolute in two years allowed and paid. Action against distributees later. - If such contingent claim becomes absolute and is presented to the court, or to the executor or administrator, within two (2) years from the time limited for other creditors to present their claims, it may be allowed by the court if not disputed by the executor or administrator and, if disputed, it may be proved and allowed or disallowed by the court as the facts may warrant. If the contingent claim is allowed, the creditor shall receive payment to the same extent as the other creditors if the estate retained by the executor or administrator is sufficient. But if the claim is not so presented, after having become absolute, within said two (2) years, and allowed, the assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall be disturbed by the order of the court to the persons entitled to the same; but the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased. Section 6. Court to fix contributive shares where devisees, legalitees, or heirs have been possession. Where devisees, legalitees, or heirs have entered into possession of portions of the estate before the debts and expenses have been settled and paid, and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances require. Section 7. Order of payment if estate insolvent - If the assets which can be appropriated for the payment of debts are not sufficient for that purpose, the executor or administrator shall pay the debts against the estate, observing the provisions of Articles 1059 and 2239 to 2251 of the Civil Code. Section 8. Dividends to be paid in proportion to claims. - If there are no assets sufficient to pay the credits of any once class of creditors after paying the credits entitled to preference over it, each creditor within such class shall be paid a dividend in proportion to his claim. No creditor of any one class shall receive any payment until those of the preceding class are paid. Section 9. Estate of insolvent non-resident, how disposed of. - In case administration is taken in the Philippine of the estate of a person who was at the time of his death an inhabitant of another country, and who died insolvent, hi estate found in the Philippines shall, as far as practicable, be so disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their respective credits. Section 10. When and how claim proved outside the Philippines against insolvent resident's estate paid. - If it appears to the court having jurisdiction that claims have been duly proven in another country against the estate of an insolvent who was at the time of his death an inhabitant of the Philippines, and that the executor or administrator in the Philippines had knowledge of the presentation of such claims in such country and an opportunity to contest their allowance, the court shall receive a certified list of such claims, when perfected in such country, and add the same to the list of claims proved against the deceased person in the Philippines so that a just distribution of the whole estate may be made equally among all its creditors according to their respective claims; but the benefit of this and the preceding sections shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditor, according to their respective claims.

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Section 11. Order for payment of debts. - Before the expiration of the time limited for the payment of the debts, the court shall order the payment thereof, and the distribution of the assets received by the executor or administrator for that purpose among the creditors, as the circumstances of the estate require and in accordance with the provisions of this rule. Section 12. Orders relating to payment of debts where appeal is taken. - If an appeal has been taken from a decision of the court concerning a claim, the court may suspend the order for the payment of the debts or may order the distributions among the creditors whose claims are definitely allowed, leaving in the hands of the executor or administrator sufficient assets to pay the claim disputed and appealed. When a disputed claim is finally settled the court having jurisdiction of the estate shall order the same to be paid out of the assets retained to the same extent and in the same proportion with the claims of other creditors. Section 13. When subsequent distribution of assets ordered. - If the whole of the debts are not paid on the first distribution, and if the whole assets are not distributed, or other assets afterwards come to the hands of the executor or administrator, the court may from time to time make further orders for the distributions of assets. Section 14. Creditors to be paid in accordance with terms of order. - When an order is made for the distribution of assets among the creditors, the executor or administration shall, as soon as the time of payment arrives, pay the creditors the amounts of their claims, or the dividend thereon, in accordance with the terms of such order. Section 15. Time for paying debts and legacies fixed, or extended after notice, within what periods. On granting letters testamentary or administration the court shall allow to the executor or administrator a time for disposing of the estate and paying the debts and legacies of the deceased, which shall not, in the first instance, exceed one (1) year; but the court may, on application of the executor or administrator and after hearing on such notice of the time and place therefor given to all persons interested as it shall direct, extend the time as the circumstances of the estate require not exceeding six (6) months for a single extension not so that the whole period allowed to the original executor or administrator shall exceed two (2) years. Section 16. Successor of dead executor or administrator may have time extended on notice within certain period. - When an executor or administrator dies, and a new administrator of the same estate is appointed, the court may extend the time allowed for the payment of the debts or legacies beyond the time allowed to the original executor or administrator, not exceeding six (6) months at a time and not exceeding six (6) months beyond the time which the court might have allowed to such original executor or administrator; and notice shall be given of the time and place for hearing such application, as required in the last preceding section. PAVIA V. DELA ROSA Summary: The former executor of the will wasted the funds of the estate then died. The guardian of the minor heir of the estate sued the heirs of the executor for recovery of the amounts due. The court held that the executor/administrator of the deceased executor should be sued instead. Facts -Pablo Linart e Iturralde died, leaving minor Carmen Linart Pavia as heir. Rafaela Pavia is the guardian of Carmen -Executor Jose de la Rosa, while in possession of the property of the estate, wasted the funds of the estate. He then died

-Rafaela sued 2 of the heirs of Jose, Bibiana and Salud del a Rosa (sisters of Jose), for the amounts due to the estate of Pablo -Answer: not liable for damages caused by Jose – no settlement of his estate yet -Decision probably granted ifo defendants WON the heirs of the executor could be made liable for damages incurred through the actions of the deceased when he was still alive? NO (note: in the previous cases, it was held that even if no judicial declaration of heirship yet, the heirs may be made liable. Here, requires that the executor or administrator of the deceased be sued first – thus requires settlement of estate of deceased. What’s the difference? Note also that this is an older case compared to Cabuyao and Marabiles) - The Code of Civil Procedure now in force makes necessary the opening of a testate or intestate succession immediately after the death of the person whose estate is to be administered, the appointment of an executor or administrator, the taking of an inventory of the estate of the deceased, and the appointment of two or more commissioners for the purpose of appraising the property of the estate and deciding as to the claims against said estate (Secs. 641, 642, 656, 660, 668, 669, Code of Civil Procedure.) - after the death of a person the only entity which may lawfully represent a testate or intestate succession is the executor or administrator appointed by the court charged to care for, maintain, and administer the estate of the deceased in such of lands, or for damages done to such lands, shall be instituted or maintained against him by an heir or devisee, until such time as there is entered s decree of the court assigning such lands to the heir or devisee, or until the time or period allowed for paying the debts of the estate has expired, unless the executor or administrator surrenders the possession of the lands to the heir or devisee. - with regard to estate or intestate succession, it is deduced that the heir lawfully succeeds the deceased from whom he derives his inheritance only after the liquidation of the estate, the payment of the debts of same and the adjudication of the residue of the estate of said deceased, and in the meantime the only person in charge by law to consider all claims against the estate of the deceased and to attend to or consider the same is the executor or administrator appointed by a competent judge or court. Disposition: ifo of Bibiana and Salud BUT w/o prejudice to plaintiff’s right to institute proper action against executor/administrator of Jose (so would have to initiate settlement proceedings of estate of Jose)

-Quemada also prayed that he be made a special administrator of the estate -Probate court appointed him as special administrator of the whole estate -Since he was the special administrator, he instituted against Pastor Jr and the latter’s wife ACTION FOR RECONVEYANCE allegedly because Pastor Jr. held the properties subject of his legacy >PASTOR JR.’s defense: he holds it in his own right, not as heir of PASTOR SR. -The case was brought until SC, which remanded the case to the probate court. Probate court did not make a ruling on it -After remand to the probate court, QUemad filed a pleading asking for an advance payment of his legacy and also the seizure of the shares in the property of PASTOR JR. PROBATE COURT: Awarded the legacy to Quemada, ordered execution on the shares held by Pastor Jr. -PASTOR JR. and his wife filed petition for certiorari before CA, but CA Affirmed. Hence, they went to SC WON the probate court resolved the issue of ownership with finality? NO - In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. - for the purpose of determining whether a certain property should or should not be included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title. - Nowhere in the dispositive portion of the probate court’s order is there a declaration of ownership of specific properties. On the contrary, it is manifest therein that ownership was not resolved. For it confined itself to the question of extrinsic validity of the will, and the need for and propriety of appointing a special administrator. - the issue of impairment of legitime (an aspect of intrinsic validity) was in fact not resolved.

PASTOR VS. CA Summary: the illegitimate child of the deceased wanted the delivery of his share (allegedly a legacy) even before the probate proceedings have been terminated, and he wanted the shares of stock which was alleged by his legitimate brother to be his. Court held that a legacy is not a debt which could be paid even before the final determination of the estate of the deceased and that the determination of ownership of properties during the probate proceedings is merely provisional.

WON Quemada’s legacy could already be delivered? NO - no basis for the Probate Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to the payment of the questioned legacy. - The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts and expenses, before apportionment and distribution of the residue among the heirs and legatees. -there was no liquidation of the community property of Pastor Sr. and his wife yet -no payment of estate tax yet - it was not possible to determine whether the legacy of QUEMADA - a fixed share in a specific property rather than an aliquot part of the entire net estate of the deceased - would produce an impairment of the legitime of the compulsory heirs. -R88.6: provision clearly authorizes execution to enforce payment of debts of estate. A legacy is not a debt of the estate; indeed, legatees are among those against whom execution is authorized to be issued

Facts: -ALVARO PASTOR SR. died -he left as his heirs: * Wife SOFIA (but died months after) *2 legitimate children >Alvaro Jr. >Sofia de Midgeley *1 illegitimate child: Quemada -Quemada petitioned for probate the alleged holographic will of their father wherein a legacy in favor of Quemada consisting of 30% of Alvaro Sr.’s 42% sharein Atlas Consolidated Mining was given

D-13. SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT Rule 89 - SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT SECTION 1. Order of sale of personalty.—Upon the application of the executor or administrator, and on written notice to the heirs and other persons interested, the court may order the whole or a part of the personal estate to be sold, if it appears necessary for the purpose of paying debts, expenses of administration, or legacies, or for the preservation of the property. SEC. 2. When court may authorize sale, mortgage, or other encumbrance of realty to pay debts and legacies through personalty not exhausted.—When the personal estate of the deceased is not sufficient to pay the debts, expenses of administration, and legacies, or where the sale of such personal estate may injure the business or other interests of those interested in the estate, and where a testator has not

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otherwise made sufficient provision for the payment of such debts, expenses and legacies, the court, on the application of the executor or administrator and on written notice to the heirs, devisees, and legatees residing in the Philippines, may authorize the executor or administrator to sell, mortgage, or otherwise encumber so much as may be necessary of the real estate, in lieu of personal estate, for the purpose of paying such debts, expenses, and legacies, if it clearly appears that such sale, mortgage, or encumbrance would be beneficial to the persons interested; and if a part cannot be sold, mortgaged, or otherwise encumbered without injury to those interested in the remainder, the authority may be for the sale, mortgage, or other encumbrance of the whole of such real estate, or so much thereof as is necessary or beneficial under the circumstances. SEC. 3. Persons interested may prevent such sale, etc., by giving bond.—No such authority to sell, mortgage, or otherwise encumber real or personal estate shall be granted if any person interested in the estate gives a bond, in a sum to be fixed by the court, conditioned to pay the debts, expenses of administration, and legacies within such time as the court directs; and such bond shall be for the security of the creditors, as well as of the executor or administrator, and may be prosecuted for the benefit of either. SEC. 4. When court may authorize sale of estate as beneficial to interested persons. Disposal of proceeds.—When it appears that the sale of the whole or a part of the real or personal estate, will be beneficial to the heirs, devisees, legatees, and other interested persons, the court may, upon application of the executor or administrator and on written notice to the heirs, devisees, and legatees who are interested in the estate to be sold, authorize the executor or administrator to sell the whole or a part of said estate, although not necessary to pay debts, legacies, or expenses of administration; but such authority shall not be granted if inconsistent with the provisions of a will. In case of such sale, the proceeds shall be assigned to the persons entitled to the estate in the proper proportions. SEC. 5. When court may authorize sale, mortgage, or other encumbrance of estate to pay debts and legacies in other countries.— When the sale of personal estate, or the sale, mortgage, or other encumbrance of real estate is not necessary to pay the debts, expenses of administration, or legacies in the Philippines, but it appears from records of proceedings of a probate court in another country that the estate of the deceased in such other country is not sufficient to pay the debts, expenses and administration, and legacies there, the court here may authorize the executor or administrator to sell the personal estate or to sell, mortgage, or otherwise encumber the real estate for the payment of debts or legacies in the other country, in the same manner as for the payment of debts or legacies in the Philippines. SEC. 6. When court may authorize sale, mortgage, or other encumbrance of realty acquired on execution or foreclosure.—The court may authorize an executor or administrator to sell, mortgage, or otherwise encumber real estate acquired by him on execution or foreclosure sale, under the same circumstances and under the same regulations as prescribed in this rule for the sale, mortgage, or other encumbrance of other real estate. SEC. 7. Regulations for granting authority to sell, mortgage, or otherwise encumber estates.—The court having jurisdiction of the estate of the deceased may authorize the executor or administrator to sell personal estate, or to sell, mortgage, or otherwise encumber real estate, in cases provided by these rules and when it appears necessary or beneficial, under the following regulations: (a) The executor or administrator shall file a written petition setting forth the debts due from the deceased, the expenses of administration, the legacies, the value of the personal estate, the situation of the estate to be sold, mortgaged, or otherwise encumbered, and such other facts as show that the sale, mortgage, or other encumbrance is necessary or beneficial; (b) The court shall thereupon fix a time and place for hearing such petition, and cause notice stating the nature of the petition, the reason for the same, and the time and place of hearing, to be given personally or by mail to the persons interested, and may cause such further notice to be given, by publication or otherwise, as it shall deem proper;

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(c) If the court requires it, the executor or administrator shall give an additional bond, in such sum as the court directs, conditioned that such executor or administrator will account for the proceeds of the sale, mortgage, or other encumbrance; (d) If the requirements in the preceding subdivisions of this section have been complied with, the court, by order stating such compliance, may authorize the executor or administrator to sell, mortgage, or otherwise encumber, in proper cases, such part of the estate as is deemed necessary, and in case of sale the court may authorize it to be public or private, as would be most beneficial to all parties concerned. The executor or administrator shall be furnished with a certified copy of such order; (e) If the estate is to be sold at auction, the mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice of execution sale; (f) There shall be recorded in the registry of deeds of the province in which the real estate thus sold, mortgaged, or otherwise encumbered is situated, a certified copy of the order of the court, together with the deed of the executor or administrator for such real estate, which shall be as valid as if the deed had been executed by the deceased in his lifetime. SEC. 8. When court may authorize conveyance of realty which deceased contracted to convey. Notice. Effect of deed.—Where the deceased was in his lifetime under contract, binding in law, to deed real property, or an interest therein, the court having jurisdiction of the estate may, on application for that purpose, authorize the executor or administrator to convey such property according to such contract, or with such modifications as are agreed upon by the parties and approved by the court; and if the contract is to convey real property to the executor or administrator, the clerk of the court shall execute the deed. The deed executed by such executor, administrator, or clerk of court shall be as effectual to convey the property as if executed by the deceased in his lifetime; but no such conveyance shall be authorized until notice of the application for that purpose has been given personally or by mail to all persons interested, and such further notice has been given, by publication or otherwise, as the court deems proper; nor if the assets in the hands of the executor or administrator will thereby be reduced so as to prevent a creditor from receiving his full debt or diminish his dividend. SEC. 9. When court may authorize conveyance of lands which deceased held in trust.—Where the deceased in his lifetime held real property in trust for another person, the court may, after notice given as required in the last preceding section, authorize the executor or administrator to deed such property to the person, or his executor or administrator, for whose use and benefit it was so held; and the court may order the execution of such trust, whether created by deed or by law. GODOY V. ORELLANO Summary: Administratrix negotiated the sale of decedent’s dredge which was under the probate court’s jurisdiction w/o the probate court’s approval. The seller now wants the delivery of the dredge. The court held that since the sale was unauthorized, it is void. It is only the court that has the power to authorize the sale. A power of attorney executed by the heirs in favor of the administrator gives no legal effect to the sale made without authority of the court. Facts: -JULIO ORELLANO died -one of his properties is a DREDGE -he left as heirs the ff:  DEMETRIO  JOSE  GUILLERMO  ALFREDO  PAZ -administratrix appointed: FELISA PANGILINAN

-administratrix entered negotiation with EUSEBIO GODOY for the purchase of the DREDGE >Eusebio entered an option to buy the dredge (consideration for the option: P1k) for P10k >GODOY was given 20 days w/n which he could pay the dredge >PANGILINAN can grant the option PROVIDED the coowners (heirs) ratified the option contract >the option contract was never ratified >so when GODOY was ready to pay, PANGILINAN cannot deliver the dredge because the co-owners would not let her do so (apparently, there were other bidders for the dredge who were offering to buy it for a higher price) -GODOY now files a complaint against the co-owners and PANGILINAN -PANGILINAN's answer:  Property belongs to the intestate estate of Julio Orellano  Plaintiff and defendants knew of that such property belonged to the intestate estate so she thought she was authorized to enter the option agreement  Since she thought she was authorized to enter the option contract, she applied to the probate court for permission to sell the dredge  BUT on the day of the hearing for the allowance of the option contract, her co-defendants opposed as there were other bidders for the dredge  So she asked for authority to sell it through public auction, and it was sold through a public auction (court authorized the public auction)  That she did not refuse to deliver the dredge, the court did not allow her to deliver it  That she wanted to tender the P1k consideration for the option but plaintiff refused to accept the same TC: Defendants ordered to reimburse GODOY P2k WON the administratrix was authorized to sell the dredge? NO -it was admitted by PANGILINAN that the dredge in question is part of intestate estate of Julio Orellano and cannot be disposed of w/o proper authority of the court -A sale and conveyance by executors without an order of the probate court, under a will devising property to them in trust, but not authorizing any sale of the realty, otherwise than by a direction to pay the debts of the testator, is void, and passes no title to the purchase. (Huse vs. Den, 85 Cal., 390.) -A sale by an administrator of the personal property of the estate, without the authority of an order of court, or of a will, or under an order of court which is void for want of jurisdiction, does not confer on the purchaser a title which is available against a succeeding administrator. (Wyatt's Adm'r vs. Rambo, 29 Ala., 510.) -Under the law, the court has exclusive jurisdiction to authorize the sale of properties like the one under consideration and the power of attorney executed by the heirs of Orellano in favor of the administratrix, without authority of court, has no legal effect, and this is the more so, since two of the said heirs are under age, and the others did not ratify the option contract, as provided in the aforesaid power of attorney. MANECLANG V. BAUN Summary: When the property of the intestate estate of the decedent was sold, only the surviving spouse was given notice and the other heirs who were of legal age. No guardian ad litem was appointed to represent the minor children. The court nullified the sale, there being no complete notice to all the heirs. The notice, which must be in writing, must be given to the heirs, devisees, and legatees and that the court shall fix a time and place for hearing such petition and cause notice to be given to the interested parties. These requisites are mandatory and essential w/o them, the authority itself, as well as the sale or encumbrance is void.

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There can be no dispute that if the heirs were duly represented by counsel or by a guardian ad litem in the case of the minors, the ntice may be given to such counsel or guardian ad litem The reason behind this requirement is that the heirs, are the presumptive owners. Since they succeed to all the rights and obligations of the deceased from the moment of the latters’ death, they are the persons directly affected by the sale or mortgage and therefore cannot be deprived of the property except in the manner provided by law. Facts: -MARGARITA SURI SANTOS died intestate -she left as surviving heirs her husband SEVERO and 9 children, 7 of whom were all minors then. -2 years later, the administrator of the estate asked for authority from the probate court to dispose of so much of the estate that is necessary to meet the debts of the estate -Court granted the administrator authority to do so w/o notice to the other heirs - only to the husband SEVERO and to the counsel (SEPTEMBER 1949 ORDER) -in accordance with the said order, the new administrator (now of legal age OSCAR) sold some parcels of land belonging to the estate to the city of Dagupan, wherein the public market was built -13 years later, the new judicial administratrix ADELAIDA (was 13 when her mother died and was 15 when the 1949 order was issued) contested the validity of the sale to Dagupan, arguing no notices were given TC: partial decision against City of Dagupan >>>it was essential and mandatory that the interested parties be given notices of the application for authority to sell the estate or any protion thereof which is pending settlement in a probate court (I just focused here because it's the point why the case was assigned) WON the lack of notice is a ground for nullifying the sale to the City of Dagupan? YES -the provisions of the Civil code on which the City of Dagupan relied on (that the notice to the father was notice to the minor heirs, being assigned as the legal representative of the minor children) was impliedly repealed by the Code of Civil Procedure on guardianship -it does not follow that for purposes of complying with the requirement of notice under Rule 89 of the Rules of the Court, notice to the father is notice to the children. -Article 320 of the present Civil Code, taken from the aforesaid Article 159, incorporates the amendment that if the property under administration is worth more than two thousand pesos (P2,000.00), the father or the mother shall give a bond subject to the approval of the Court of First Instance. -Sections 2, 4 and 7 of said Rule state explicitly that the notice, which must be in be writing, must be given to the heirs, devisees, and legatees and that the court shall fix a time and place for hearing such petition and cause notice to be given to the interested parties. -There can be no dispute that if the heirs were duly represented by counsel or by a guardian ad litem in the case of the minors, the notice may be given to such counsel or guardian ad litem. In this case, however, only the surviving spouse, Severo Maneclang, was notified through his counsel. Two of the heirs, Hector Maneclang and Oscar Maneclang, who were then of legal age, were not represented by counsel. The remaining seven (7) children were still minors with no guardian ad litem having been appointed to represent them. Obviously then, the requirement of notice was not satisfied. The requisite set forth in the aforesaid sections of Rule 89 are mandatory and essential. Without them, the authority to sell, the sale itself and the order approving it would be null and void ab initio. -The reason behind this requirement is that the heirs, as the presumptive owners since they succeed to all the rights and obligations of the deceased from the moment of the latter's death, are the persons directly affected by the sale or mortage and therefore cannot be deprived of the property except in the manner provided by law. LEE VS. RTC QC

Summary: The decedent left legitimate and illegitimate children as well as his surviving spouse. His first family executed an extrajudicial partition of the estate even pending probate proceedings, w/o giving notice to the illegitimate children. The first family sold the shares of the decedent, as they partitioned it, to FLAG. The illegitimate children now contests the validity of the sale and the CA as well as the SC already ruled that the sale was void. Still, the purchasers of the shares insists that they are entitled to it. The court held that it is NULL and VOID for not giving notice to the other heirs. The intestate court has the power to execute its order with regard to the nullity of an unauthorized sale of estate property, otherwise its power to annul the unauthorized or fraudulent disposition of estate property would be meaningless. In other words, enforcement is a necessary adjunct of the intestate or probate court’s power to annul unauthorized or fraudulent transactions to prevent the dissipation of estate property before final adjudication. Although the ROC do not specifically state that the sale of an immovable property belonging to an estate of a decedent, in a special proceeding, should be made with the approval of the court, this authority is necessarily included in its capacity as a probate court. Therefore, it is clear that the probate court, acted w/n its jurisdiction in issuing the Order approving the Deed of Conditional Sale. Facts -JUVENCIO ORTANEZ died -he incorporated PHILIPPINE INTERNATIONAL LIFE INSURANCE COMPANY and owned 90% of the shares of the corporation at the time of his death -he left as heirs the ff:  Surviving spouse JULIANA  3 legitimate children:  Rafael  Jose  Antonio  5 illegitimate children by Ligaya Novicio  Ma. Divina Ortanez-Enderes  Jose  Romeo  Enrico Manuel  Cesar -Rafael filed a petition for letters of administration and was granted -pending probate proceedings, the first family (JULIANA and her children) extrajudicially partitioned the estate of JUVENCIO w/o notifying the illegitimate children -claiming that she owned 1,014 shares of Philinterlife as her share in the conjugal property, JULIANA sold the shares w/ right to repurchase ifo of Filipino Loan Assistance Group (FLAG); JOSE also sold his alleged shares to FLAG, consisting of 1,011 shares. These figures were derived from the extra-judicial partition they made to the exclusion of the illegitimate children -the illegitimate children, led by Ma. Divina filed a motion for appointment of special administrator of Philinterlife shares - granted: Ma. Divina made special administrator -Ma. Divina, as special administrator, prayed for an urgent motion to declarevoid ab inition the MOA wherein the shares were sold to FLAG Probate court: the sale to FLAG was void because a sale of a property of the estate w/o prior approval fo the probate court is void and passes no title to the purchaser. Since the sales in question were entered w/o prior approval of the court, not binding on the estate -later, Probate court annulled the sale to Lee. Annulment was affirmed up to SC -still, Lee and the rest of FLAG increased the authorized capital stock of Philinterlife so that the interest of the decedent would be diluted. Various cases arised from this in SEC but the cases are anchored on the legality of the sale of JUANA and JOSE to FLAG 57 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

-Ma. Divina petitioned for writ of execution from probate court, which the court granted -the sheriff tried to enforce the writ but was not allowed by the security guards of FLAG's premises. So Lee and his lawyer were sued for contempt … WON the sale between FLAG and the legitimate family is valid? NO -it cannot be reopened as the issue of nullity was already settled long time ago. To reopen said issue would set a bad precedent, opening the door wide open for dissatisfied parties to relitigate unfavorable decisions no end. This is completely inimical to the orderly and efficient administration of justice. -What we have here is a situation where some of the heirs of the decedent without securing court approval have appropriated as their own personal property the properties of [the] Estate, to the exclusion and the extreme prejudice of the other claimant/heirs. In other words, these heirs, without court approval, have distributed the asset of the estate among themselves and proceeded to dispose the same to third parties even in the absence of an order of distribution by the Estate Court. As admitted by petitioner’s counsel, there was absolutely no legal justification for this action by the heirs. There being no legal justification, petitioner has no basis for demanding that public respondent [the intestate court] approve the sale of the Philinterlife shares of the Estate by Juliana and Jose Ortañez in favor of the Filipino Loan Assistance Group. -An heir can sell his right, interest, or participation in the property under administration under Art. 533 of the Civil Code which provides that possession of hereditary property is deemed transmitted to the heir without interruption from the moment of death of the decedent. However, an heir can only alienate such portion of the estate that may be allotted to him in the division of the estate by the probate or intestate court after final adjudication, that is, after all debtors shall have been paid or the devisees or legatees shall have been given their shares. This means that an heir may only sell his ideal or undivided share in the estate, not any specific property therein. -Juliana Ortañez and Jose Ortañez sold specific properties of the estate, without court approval. It is wellsettled that court approval is necessary for the validity of any disposition of the decedent’s estate. -when the estate of the deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of the probate court. -the probate court can declare null and void the disposition of the property under administration, made by private respondent, the same having been effected without authority from said court. It is the probate court that has the power to authorize and/or approve the sale -Our jurisprudence is therefore clear that (1) any disposition of estate property by an administrator or prospective heir pending final adjudication requires court approval and (2) any unauthorized disposition of estate property can be annulled by the probate court, there being no need for a separate action to annul the unauthorized disposition. WON the probate court can execute an order nullifying an invalid sale? YES he intestate court has the power to execute its order with regard to the nullity of an unauthorized sale of estate property, otherwise its power to annul the unauthorized or fraudulent disposition of estate property would be meaningless. In other words, enforcement is a necessary adjunct of the intestate or probate court’s power to annul unauthorized or fraudulent transactions to prevent the dissipation of estate property before final adjudication. WON determination of WON shares are included or excluded in the inventory is merely provisional? It's not provisional, it was already determined that the shares belonged to the decedent, and was in fact from the start included in the inventory of the properties We are not dealing here with the issue of inclusion or exclusion of properties in the inventory of the estate because there is no question that, from the very start, the Philinterlife shares of stock were owned by the decedent, Dr. Juvencio Ortañez. Rather, we are concerned here with the effect of the sale

made by the decedent’s heirs, Juliana Ortañez and Jose Ortañez, without the required approval of the intestate court. This being so, the contention of petitioners that the determination of the intestate court was merely provisional and should have been threshed out in a separate proceeding is incorrect. WON the WOE should not be executed because no notice to the defendants? NO The sale of any property of the estate by an administrator or prospective heir without order of the probate or intestate court is void and passes no title to the purchaser. *** and so on... D-14 DISTRIBUTI ON AN D PARTI TION OF THE E STATE RULE 90 SECTION 1. When order for distribution of residue made.—When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs. SEC. 2. Questions as to advancement to be determined.—Questions as to advancement made, or alleged to have been made, by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings; and the final order of the court thereon shall be binding on the person raising the questions and on the heir. SEC. 3. By whom expenses of partition paid.—If at the time of the distribution the executor or administrator has retained sufficient effects in his hands which may lawfully be applied for the expenses of partition of the properties distributed, such expenses of partition may be paid by such executor or administrator when it appears equitable to the court and not inconsistent with the intention of the testator; otherwise, they shall be paid by the parties in proportion to their respective shares or interest in the premises, and the apportionment shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share, the court may issue an execution in the name of the executor or administrator against the party not paying for the sum assessed. SEC. 4. Recording the order of partition of estate.—Certified copies of final orders and judgments of the court relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the province where the property is situated. LUZON SURETY VS. QUEBRAR Short summary: Surety company entered into an indemnity agreements wherein they agreed to become sureties to 2 administrator's bond in favor of Pastor Quebar, and the latter agreed to pay them. Quebar submitted a project of partition and accounts which was approved by the court, so Quebar argues that the bond should now be cancelled (thus, not paying anything more to the surety). Surety sues the administrator for amounts due to it. Court held that the administrators bond still exists, coterminous with the probate proceedings. And even if there's already a project of partition, as long as not all of the

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debts are paid, the administrator's job is not yet done, thus, the bond still subsists and the administrator is still liable to pay the surety. Administration is for the purpose of liquidation of the estate and the distribution of the residue among the heirs and legatees. Liquidation means the determination of all the assets of the estate and payment of all debts and expenses. Approval of a project of partition does not necessarily terminate administration. Facts: -Luzon Surety Company entered into an indemnity agreement w/ Pastor Quebar: Luzon Surety Company would issue 2 administrator's bond, P15k each, for 2 Special proceedings Quebar and Kilayco would pay Luzon Surety P300 in advance as premium for every 12 months….or renewed by them Quebar and Kilayco also agrees to indemnify Luzon Surety for all damages, losses….expenses -Quebar paid for the first year, P304.50 each -Quebar submitted a Project Partition and Accounts >>>CFI approved it -when Luzon Surety demanded payment of premiums and documentary stamps for the years after the first. -Quebar and Kilayco filed a MOTION FOR CANCELLATION AND/OR REDUCTION OF EXECUTOR'S BOND: heirs already received their shares (so tapos na dapat trabaho nila, di na kelangan ng bond) >>>CFI: cancelled bonds. - As a result, Kilayco and Quebar refused to pay the amount demanded by Luzon Surety (which amounted to almost P2.5k each ~ P5k) -Luzon Surety filed for collection. CFI: allowed Luzon Surety to recover: defendants liable under terms of the Indemnity Agreements, even if they did not renew it, because they were still in force and effect until cancelled by Court order. Quebar and Kilayco appealed CA: referred case to SC, questions of law involved HELD: With the payment of the premium for the first year, the surety already assumed the risk involved, that is, in case defendant-appellant Pastor T. Quebrar defaults in his administrative duties. The surety became liable under the bond for the faithful administration of the estate by the administrator/executor. Hence, for as long as defendant-appellant Pastor T. Quebrar was administrator of the estates, the bond was held liable and inevitably, the plaintiff-appellee's liability subsists since the liability of the sureties is co-extensive with that of the administrator HOW TO INTERPRET LIABILITY FOR THE BOND: Look on the language of the bond itself -HERE: the bond is practically the same as R81.1, ROC -The statute which requires the giving of a bond becomes a part of the bond and imparts into the bond any condition prescribed by statute -PURPOSE OF BOND: indemnify creditors, heirs, legatees and the estate, conditioned upon the faithful performance of the administrator's trust - the surety is then liable under the administrator's bond, for as long as the administrator has duties to do as such administrator/executor. Since the liability of the sureties is co-extensive with that of the administrator and embraces the performance of every duty he is called upon to perform in the course of administration (Deobold vs. Oppermann, 111 NY 531, 19 NE 94), it follows that the administrator is still duty bound to respect the indemnity agreements entered into by him in consideration of the suretyship. -EFFECT OF APROVAL OF PROJECT OF PARTITION: NONE ...liquidation: the determination of all the assets of the estate and payment of all the debts and expenses - here, not all expenses were paid yet

…project partition: estate may be partitioned even before the termination of the administration proceedings. Even w/ the approval of the partition, the CFI could still exercise jurisidction over the administration proceedings WHEN SURETY LIABLE: as long as probate proceedings are ongoing The sureties of an administration bond are liable only as a rule, for matters occurring during the term covered by the bond. And the term of a bond does not usually expire until the administration has been closed and terminated in the manner directed by law -As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability (Deobold vs. Oppermann, supra) notwithstanding the non-renewal of the bond by the defendants-appellants. CAN'T INTERPRET THE TWO BONDS SEPARATELY: the terms of the bond makes them jointly and severally liable -so 1 can't claim that the bond and the indemnity agreement failed to have effect since… …approval of the project partition …nonpayment of stated premiums WON PAYMENT OF PREMIUMS AND DST ARE CONDITION PRECEDENT TO EFFECTIVITY OF BONDS? NO -no provision or condition in the bond to the effect that it will terminate at the end of the first year if the premium for continuation thereafter is not paid. And there is no clause by which its obligation is avoided or even suspended by the failure of the obligee to pay an annual premium -Even on a failure to pay an annual premium, the contract ran on until affirmative action was taken to avoid it. The obligation of the bond was therefore continuous -The payment of the annual premium is to be enforced as part of the consideration, and not as a condition -"the one-year period mentioned therein refers not to the duration or lifetime of the bond, but merely to the payment of premiums, and, consequently, does not affect at all the effectivity or efficacy of such bond. But such non-payment alone of the premiums for the succeeding years . . . does not necessarily extinguish or terminate the effectivity of the counter-bond in the absence of an express stipulation in the contract making such non-payment of premiums a cause for the extinguishment or termination of the undertaking. . . . There is no necessity for an extension or renewal of the agreement because by specific provision thereof, the duration of the counter-bond was made dependent upon the existence of the original bond." CORPORATE SURETY: Suretyship became regarded as insurance -no need to interpret the contract because NO AMBIGUITY TORRES VS. ENCARNACION Summary: The heirs of property who possessed the same did not want to give up the property when the project partition awarded it to another heir. The court held that since the property was w/n the jurisdiction of the court, and that the parties submitted themselves to the court’s power, then they cannot assail the orders of the court and allege that another action should be instituted to recover the property from them. A party is precluded from attacking the validity of the partition or any part of it in the guise of a complaint for reconveyance. A party cannot, in law and in good conscience be allowed to reap the fruite of a partition, agreement or judgment and repudiate what does not suit him. Thus, where a piece of land has been included in a partition and there is no allegation that the inclusion was effected through improper means or w/o petitioner’s knowledge, the partition barred bay further litigation on said title and operated to bring the property under the control and jurisdiction of the court for its proper disposition according to the tenor of the partition. Facts -Marcelo de Borja died -his property was subjected to intestate estate proceedings

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-the petitioners, the surviving children of Quintin de Borja (one of the children of Marcelo - thus they were Marcelo's grandchildren) occupied a portion of the land owned by the estate. -the project of partition, however, awarded to another heir - to Miguel Dayco - the portion occupied by the Quintin heirs. The latter were represented during the partition. The court approved the partition -Probate court then ordered the Quintin heirs to deliver the parcel of land to Miguel -Quintin heirs contend that the administrator of the Marcelo de Borja Estate was to recover the property in an action at law and not by motion in the intestate proceedings. WON the probate courts are authorized to order the transfer of property to another person? YES -R91.1: the probate court, having the custody and control of the entire estate, is the most logical authority to effectuate this provision within the same estate proceeding, said proceeding being the most convenient one in which this power and function of the court can be exercised and performed without the necessity if requiring the parties to undergo the inconvenience, delay and expense of having to commence and litigate an entirely different action. There can be no question of the share to be delivered the probate court would have jurisdiction within the same estate proceeding to order him to deliver that possession to the person entitled thereto, and we see no reason, legal or equitable, for denying the same power to the probate court to be exercised within the same estate proceeding if the share to be delivered happens to be in the possession of 'any other person,' especially when 'such other person' is one of the heirs themselves who are already under the jurisdiction of the probate court in the same estate proceeding -the Quintin heirs are barred by estoppel: when the administrator of their grandfather's estate refused to deliver their father's share/their share, the Quintin children asked relief from the court INTESTATE ESTATE OF MERCEDES CANO, TIMBOL VS. CANO Summary: In intestate proceedings the probate court does not lose jurisdiction of the estate until after the payment of all the debts and the remaining estate delivered to the heirs. The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of partition by itself alone does not terminate the probate proceeding. The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or judge which may thus reverse a decision or order of the probate on intestate court already final and executed and re-shuffle properties long ago distribute and disposed of.

ASSIGNMENT NO. 8 ESC HEATS RULE 91 ESCHEATS SECTION 1. When and by whom petition filed.—When a person dies intestate, seized of real or personal property in the Philippines, leaving no heir or person by law entitled to the same, the Solicitor General or his representative in behalf of the Republic of the Philippines, may file a petition in the Regional Trial Court of the province where the deceased last resided or In which he had estate, if he resided out of the Philippines, setting forth the facts, and praying that the estate of the deceased be declared escheated. SEC. 2. Order for hearing.—If the petition is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, which date shall be not more than six (6) months after the entry of the order, and shall direct that a copy of the order be

published before the hearing at least once a week for six (6) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. SEC. 3. Hearing and judgment.—Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the person died intestate, seized of real or personal property in the Philippines, leaving no heir or person entitled to the same, and no sufficient cause being shown to the contrary, the court shall adjudge that the estate of the deceased in the Philippines, after the payment of just debts and charges, shall escheat; and shall, pursuant to law, assign the personal estate to the municipality or city where he last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities. The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used. SEC. 4. When and by whom claim to estate filed.—If a devisee, legatee, heir, widow, widower, or other person entitled to such estate appears and files a claim thereto with the court within five (5) years from the date of such judgment such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable to, him for the proceeds, after deducting reasonable charges for the care of the estate; but a claim not made within said time shall be forever barred. SEC. 5. Other actions for escheat.—Until otherwise provided by law, actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be governed by this rule, except that the action shall be instituted in the province where the land lies in whole or in part. MUNICIPAL COUNCIL OF SAN PEDRO, LAGUNA V. COLEGIO DE SAN JOSE Summary: Escheat is not an ordinary civil action but a special proceeding that should be commenced not by complaint but by petition. Any person alleging to have a direct right or interest in the property sought to be escheated, likewise an interested and necessary party, may properly oppose the petition for escheat or file claim thereto with the court within the period provided in R91.4 While the ROC provisions relative e to escheat of properties do not fall in fact authorize the filing of a motion to dismiss the petition presented for that purpose, and the Rules permitting the interposition of a motion to dismiss to the complaint and answer, there is no reason of a procedural nature which prevents the filing of a motion to dismiss based upon any of the grounds provided for by law for a motion to dismiss the complaint. In such a case, the motion to dismiss plays the role of a demurrer and the court should resolve the legal questions raised therein. IN RE ESTATE OF LAO SAYCO Summary: In order that a proceeding for escheat may prosper, the following requisites must be present: 1) that a person died intestate; 2) that he left no heirs or persons by law entitled to the same; and 3) that the deceased left properties. DIVINO V. MUNICIPALITY OF GUIANGA Summary: In the absence of jurisdiction to order an escheat due to noncompliance with jurisdictional requirements provided under the Rules of Court, the court has no jurisdiction to grant the remedy enabling the devisee, legatee, heir, widow, widower, or other person entitled to the estate to appear within a specific period from the date of the decree of escheat and file a claim to the estate.

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ASSIGNMENT NO. 8 : GENERAL GUARDIANS AN D GUA RDIANSH IP RA 8369 (FAMILY COURTS ACT OF 1997) REPUBLIC ACT NO. 8369 AN ACT ESTABLISHING FAMILY COURTS, GRANTING THEM EXCLUSIVE ORIGINAL JURISDICTION OVER CHILD AND FAMILY CASES, AMENDING BATAS PAMBANSA BILANG 129,AS AMENDED, OTHERWISE KNOWN AS ACT OF 1980, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES. Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Title. - This Act shall be known as the "Family Courts Act of 1997". Sec. 2. Statement of National Policies. - The State shall protect the rights and promote the welfare of children in keeping with the mandate of the Constitution and the precepts of the United Nations Convention on the rights of the Child. The State shall provide a system of adjudication for youthful offenders which takes into account their peculiar circumstances. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. The courts shall preserve the solidarity of the family, provide procedures for the reconciliation of spouses and the amicable settlement of family controversy. Sec. 3. Establishment of Family Courts. - There shall be established a Family Court in every province and city in the country. In case where the city is the capital of the province, the Family Court shall be established in the municipality which has the highest population. Sec. 4. Qualification and Training of Family Court Judges. - Sec. 15 of Batas Pambansa Blg. 129, as amended, is hereby further amended to read as follows: "Sec. 15. (a) Qualification. - No person shall be appointed Regional Trial Judge or Presiding Judge of the Family Court unless he is a natural-born citizen of the Philippines, at least thirty-five (35) years of age, and, for at least ten (10) years, has been engaged in the practice of law in the Philippines or has held a public office in the Philippines requiring admission to the practice of law as indispensable requisite. "(b) Training of Family Court Judges. - The Presiding Judge, as well as the court personnel of the Family Courts, shall undergo training and must have the experience and demonstrated ability in dealing with child and family cases. "The Supreme Court shall provide a continuing education program on child and family laws, procedure and other related disciplines to judges and personnel of such courts." Sec. 5. Jurisdiction offamily Courts. - The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases: a) Criminal cases where one or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age but not less than nine (9) years of age or where one or more of the victims is a minor at the time of the commission of the offense: Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred. The sentence, however, shall be suspended without need of application pursuant to Ptesidential Decree No. 603, otherwise known as the "Child and Youth Welfare Code"; b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter; c) Petitions for adoption of children and the revocation thereof;

d) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains; e) Petitions for support and/or acknowledgment; f) Summary judicial proceedings brought under the provisions of Executive Order No. 209, otherwise known as the"Family Code of the Philippines"; g) Petitions for declaration of status of children as abandoned, dependent o neglected children, petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental authority and other cases cognizable under Presidential Decree No. 603, Executive Order No. 56, (Series of 1986), and other related laws; h) Petitions for the constitution of the family home; i) Cases against minors cognizable under the Dangerous Drugs Act, as amended; j) Violations of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," as amended by Republic Act No. 7658; and k) Cases of domestic violence against: 1) Women - which are acts of gender based violence that results, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman's personhood, integrity and freedom movement; and 2) Children - which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other conditions prejudicial to their development. If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties. If any question involving any of the above matters should arise as an incident in any case pending in the regular courts, said incident shall be determined in that court. Sec. 6. Use of Income. - All Family Courts shall be allowed the use of ten per cent (10%) of their income derived from filing and other court fees under Rule 141 of the Rules of Court for research and other operating expenses including capital outlay: Provided, That this benefit shall likewise be enjoyed by all courts of justice. The Supreme Court shall promulgate the necessary guidelines to effectively implement the provisions of this Sec. Sec. 7. Special Provisional Remedies. - In cases of violence among immediate family members living in the same domicile or household, the Family Court may issue a restraining order against the accused of defendant upon verified application by the complainant or the victim for relief from abuse. The court may order the temporary custody of children in all civil actions for their custody. The court may also order support pendente lite, including deduction from the salary and use of conjugal home and other properties in all civil actions for support. Sec. 8. Supervision of Youth Detention Homes. - The judge of the Family Court shall have direct control and supervision of the youth detention home which the local government unit shall establish to separate the youth offenders from adult criminals: Provided, however, That alternatives to detention and institutional care shall be made available to the accused including counseling, recognizance, bail, community continuum, or diversions from the justice system: Provided, further, That the human rights of the accused are fully respected in a manner appropriate to their well-being. 61 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

Sec. 9. Social Services and Counseling Division. - Under the guidance ofthe Department of Social Welfare and Development (DSWD), a Social Services and Counseling Division (SSCD) shall be established in each judicial region as the Supreme Court shall deem necessary based on the number of juvenile and family cases existing in such jurisdiction. It shall provide appropriate social services to all juvenile and family cases filed with the court and recommend the proper social action. It shall also develop programs, formulate uniform policies and procedures, and provide technical supervision and monitoring of all SSCD in coordination with the judge. Sec. 10. Social Services and Counseling Division Staff. - The SSCD shall have a staff composed of qualified social workers and other personnel with academic preparation in behavioral sciences to carry out the duties'of conducting intake assessment, social case studies, casework and counseling, and othersocial services that may be needed in connection with cases filed with the court: Provided, however, That in adoption cases and in petitions for declaration of abandonment, the case studies may be prepared by social workers of duly licensed child caring or child placement agencies, or the DSWD. When warranted, the division shall recommend that the court avail itself of consultative services of psychiatrists, psychologists, and other qualified specialists presently employed in other departments of the government in connection with its cases. The position of Social Work Adviser shall be created under the Office of the Court Administrator, who shall monitor and supervise the SSCD ofthe Regional Trial Court. Sec. 11. Alternative Social Services. - In accordance with Sec. 17 of this Act, in areas where no Family Court has been established or no Regional Trial Court was designated by the Supreme Court due to the limited number of cases, the DSWD shall designate and assign qualified, trained, and DSWD accredited social workers of the local government units to handle juvenile and family cases filed in the designated Regional Trial Court of the place. Sec. 12. Privacy and Confidentiality of Proceedings. - All hearings and conciliation of the child and family cases shall be treated in a manner consistent with the promotion of the child's and the family's dignity and worth, and shall respect their privacy at all stages of the proceedings. Records of the cases shall be dealt with utmost confidentiality and the identity of parties shall not be divulged unless necessary and with authority of the judge. Sec. 13. Special Rules of Procedure. - The Supreme Court shall promulgate special rules of procedure for the transfer of cases to the new courts during the transition period and for the disposition of family cases with the best interests of the child and the protection of the family as primary consideration taking into account the United Nations Convention on the Rights of the Child. Sec. 14. Appeals. - Decisions and orders of the court shall be appealed in the same manner and subject to the same conditions as appeals from the ordinary Regional Trial Courts. Sec. 15. Appropriations. - The amount necessary to carry out the provisions of this Act shall be included in the General Appropriations Act of the year following in its enactment into law and thereafter. Sec. 16. Implementing Rules and Regulations. - The Supreme Court, in coordination with the DSWD, shall formulate the necessary rules and regulations for the effective implementation of the social aspects of this Act.

Sec. 17. Transitory Provisions. - Pending the establishment of such Family Courts, the Supreme Court shall designate from among the branches ofthe Regional Trial Court at least one Family Court in each of the cities of Manila, Quezon, Pasay, Caloocan, Makati, Pasig, Mandaluyong, Muntinlupa, Laoag, Baguio, Santiago, Dagupan, Olongapo, Cabanatuan, San Jose, Angeles, Cavite, Batangas, Lucena, Naga, Iriga, Legazpi, Roxas, Iloilo, Bacolod, Dumaguete, Tacloban, Cebu, Mandaue, Tagbilaran, Surigao, Butuan, Cagayan de Oro, Davao, General Santos, Oroquieta, Ozamis, Dipolog, Zamboanga, Pagadian, Iligan, and in such other places as the Supreme Court may deem necessary. Additional cases other than those provided in Sec. 5 may be assigned to the Family Courts when their dockets permit: Provided, That such additional cases shall not be heard on the same day family cases are heard. In areas where there are no Family Courts, the cases referred to in Sec. 5 of this Act shall be adjudicated by the Regional Trial Court. Sec. 18. Separability Clause. - In case any provision of this Act is declared unconstitutional, the other provisions shall remain in effect. Sec. 19. Repealing Clause. - All other laws, decrees, executive orders, rules or regulations inconsistent herewith are hereby repealed, amended or modified accordingly. Sec. 20. Effectivity. - This Act shall take effect fifteen (15) days after its publication in at least two (2) national newspapers of general circulation. Approved October 28, 1997. [A.M. No. 03-02-05-SC 2003-05-01] RE: PROPOSED RULE ON GUARDIANSHIP OF MINORS RESOLUTION Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting for this Court’s consideration and approval the Proposed Rule on Guardianship of Minors, the Court Resolved to APPROVE the same. The Rule shall take effect on May 1, 2003 following its publication in a newspaper of general circulation not later than April 15, 2003. April 1, 2003. I>Davide, Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Moralez,Callejo Sr., Azcuna, JJ., concur RULE ON GUARDIANSHIP OF MINORS Section 1. Applicability of the Rule. – This Rule shall apply to petitions for guardianship over the person or property, or both, of a minor. The father and the mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on guardianship. 62 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

Sec. 2. Who may petition for appointment of guardian. – On grounds authorized by law, any relative or other person on behalf of a minor, or the minor himself if fourteen years of age or over, may petition the Family Court for the appointment of a general guardian over the person or property, or both, of such minor. The petition may also be filed by the Secretary of Social Welfare and Development and by the Secretary of Health in the case of an insane minor who needs to be hospitalized. Sec. 3. Where to file petition. – A petition for guardianship over the person or property, or both, of a minor may be filed in the Family Court of the province or city where the minor actually resides. If he resides in a foreign country, the petition shall be flied with the Family Court of the province or city where his property or any part thereof is situated. Sec. 4. Grounds of petition.-The grounds for the appointment of a guardian over the person or property, or both, of a minor are the following: (a) death, continued absence, or incapacity of his parents; (b) suspension, deprivation or termination of parental authority; (c) remarriage of his surviving parent, if the latter Is found unsuitable to exercise parental authority; or (d) when the best interests of the minor so require. Sec. 5. Qualifications of guardians. – In appointing a guardian, the court shall consider the guardian’s: (a) moral character; (b) physical, mental and psychological condition; (c) financial status; (d) relationship of trust with the minor; (e) availability to exercise the powers and duties of a guardian for the full period of the guardianship; (f) lack of conflict of interest with the minor; and (g) ability to manage the property of the minor. Sec. 6. Who may be appointed guardian of the person or property, or both, of a minor. – In default of parents or a court-appointed guardian, the court may appoint a guardian of the person or property, or both, of a minor, observing as far as practicable, the following order of preference: (a) the surviving grandparent and In case several grandparents survive, the court shall select any of them taking Into account all relevant considerations; (b) the oldest brother or sister of the minor over twenty-one years of age, unless unfit or disqualified; (c) the actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; and (d) any other person, who in the sound discretion of the court, would serve the best interests of the minor. Sec. 7. Contents of petition. – A petition for the appointment of a general guardian must allege the following: (a) The jurisdictional facts; (b) The name, age and residence of the prospective ward; (c) The ground rendering the appointment necessary or convenient; (d) The death of the parents of the minor or the termination, deprivation or suspension of their parental authority; (e) The remarriage of the minor’s surviving parent; (f) The names, ages, and residences of relatives within the 4th civil degree of the minor, and of persons having him in their care and custody; (g) The probable value, character and location of the property of the minor; and (h) The name, age and residence of the person for whom letters of guardianship are prayed.

The petition shall be verified and accompanied by a certification against forum shopping. However, no defect in the petition or verification shall render void the issuance of letters of guardianship. Sec. 8. Time and notice of hearing. – When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for its hearing, and shall cause reasonable notice to be given to the persons mentioned in the petition, including the minor if he is fourteen years of age or over, and may direct other general or special notice to be given. Sec. 9. Case study report. – The court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. The social worker may intervene on behalf of the minor if he finds that the petition for guardianship should be denied.

(a) To make and return to the court, within three months after the issuance of his letters of guardianship, a true and complete Inventory of all the property, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf; (b) To faithfully execute the duties of his trust, to manage and dispose of the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education; (c) To render a true and Just account of all the property 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 this rule and such other times as the court directs; and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and (d) To perform all orders of the court and such other duties as may be required by law.

Sec. 10. Opposition to petition. – Any interested person may contest the petition by filing a written opposition based on such grounds as the majority of the minor or the unsuitability of the person for whom letters are prayed, and pray that the petition be denied, or that letters of guardianship issue to himself, or to any suitable person named in the opposition. Sec. 11. Hearing and order for letters to issue. – At the hearing of the petition, it must be shown that the requirement of notice has been complied with. The prospective ward shall be presented to the court. The court shall hear the evidence of the parties in support of their respective allegations. If warranted, the court shall appoint a suitable guardian of the person or property, or both, of the minor. At the discretion of the court, the hearing on guardianship may be closed to the public and the records of the case shall not be released without its approval. Sec. 12. When and how a guardian of the property for non-resident minor is appointed; notice. – When the minor resides outside the Philippines but has property in the Philippines, any relative or friend of such minor, or any one interested in his property, in expectancy or otherwise, may petition the Family Court for the appointment of a guardian over the property. Notice of hearing of the petition shall be given to the minor by publication or any other means as the court may deem proper. The court may dispense with the presence of the non-resident minor. If after hearing the court is satisfied that such non-resident is a minor and a guardian is necessary or convenient, it may appoint a guardian over his property. Sec. 13. Service of final and executory judgment or order. – The final and executory judgment or order shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the place where his property or part thereof is situated shall annotate the same in the corresponding title, and report to the court his compliance within fifteen days from receipt of the order. Sec. 14. Bond of guardian; amount; conditions.-Before he enters upon the execution of his trust, or letters of guardianship issue, an appointed guardian may be required to post a bond in such sum as the court shall determine and conditioned as follows:

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Sec. 15. Where to file the bond; action thereon. – The bond posted by a guardian shall be filed in the Family Court and, In case of breach of any of its conditions, the guardian may be prosecuted in the same proceeding for the benefit of the ward or of any other person legally interested in the property. Whenever necessary, the court may require the guardian to post a new bond and may discharge from further liability the sureties on the old bond after due notice to interested persons, if no injury may result therefrom to those interested in the property. Sec. 16. Bond of parents as guardians of property of minor. – lf the market value of the property or the annual Income of the child exceeds P50,000.00, the parent concerned shall furnish a bond In such amount as the court may determine, but in no case less than ten per centurn of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be flied in the Family Court of the place where the child resides or, if the child resides in a foreign country, in the Family Court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding In which all incidents and issues regarding the performance of the obligations of a general guardian shall be heard and resolved. Sec. 17. General duties of guardian. – A guardian shall have the care and custody of the person of his ward and the management of his property, or only the management of his property. The guardian of the property of a nonresident minor shall have the management of all his property within the Philippines. A guardian shall perform the following duties: (a) To pay the just debts of the ward out of the personal property and the income of the real property of the ward, If the same is sufficient; otherwise, out of the real property of the ward upon obtaining an order for its sale or encumbrance; (b) To settle all accounts of his ward, and demand, sue for, receive all debts due him, or may, with the approval of the court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the property and effects; and to appear for and represent the ward in all actions and special proceedings, unless another person is appointed for that purpose; (c) To manage the property of the ward frugally and without waste, and apply the income and profits thereon, insofar as may be necessary, to the comfortable and suitable maintenance of the ward; and

if such income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court to do so; (d) To consent to a partition of real or personal property owned by the ward jointly or in common with others upon authority granted by the court after hearing, notice to relatives of the ward, and a careful investigation as to the necessity and propriety of the proposed action; (e) To submit to the court a verified inventory of the property of his ward within three months after his appointment, and annually thereafter, the rendition of which may be required upon the application of an interested person; (f) To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within three months after such discovery, succession, or acquisition; and (g) To render to the court for its approval an accounting of the property one year from his appointment, and every year thereafter or as often as may be required. Sec. 18. Power and duty of the court – The court may: (a) Request the assistance of one or more commissioners in the appraisal of the property of the ward reported in the initial and subsequent inventories; (b) Authorize reimbursement to the guardian, other than a parent, of reasonable expenses incurred in the execution of his trust, and allow payment of compensation for his services as the court may deem just, not exceeding ten per centum of the net income of the ward, if any; otherwise, in such amount the court determines to be a reasonable compensation for his services; and (c) Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the property at the ward, require any person suspected of having embezzled, concealed, or disposed of any money, goods or interest, or a written instrument belonging to the ward or his property to appear for examination concerning any thereof and issue such orders as would secure the property against such embezzlement, concealment or conveyance. Sec. 19. Petition to sell or encumber property.-When the income of a property under guardianship is insufficient to maintain and educate the ward, or when it is for his benefit that his personal or real property or any part thereof be sold, mortgaged or otherwise encumbered, and the proceeds invested in safe and productive security, or in the improvement or security of other real property, the guardian may file a verified petition setting forth such facts, and praying that an order issue authorizing the sale or encumbrance of the property. Sec. 20. Order to show cause. – If the sale or encumbrance is necessary or would be beneficial to the ward, the court shall order his next of kin and all person/s interested in the property to appear at a reasonable time and place therein specified and show cause why the petition should not be granted. Sec. 21. Hearing on return of order; costs. – At the time and place designated in the order to show cause, the court shall hear the allegations and evidence of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or deny the petition as the best interests of the ward may require. Sec. 22. Contents of order for sale or encumbrance and its duration; bond. – If, after full examination, it is necessary, or would be beneficial to the ward, to sell or encumber the property, or some portion of it, the court shall order such sale or encumbrance the proceeds of which shall be expended for the maintenance or the education of the ward, or invested as the circumstances may require. The order shall specify the grounds for the sale or encumbrance and may direct that the property ordered sold be disposed of at public sale, subject to such conditions as to the time and manner of payment, and security where a part of the payment is deferred. The original bond of the guardian shall stand as security for the

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proper appropriation of the proceeds of the sale or encumbrance, but the court may, if deemed expedient, require an additional bond as a condition for the sale or encumbrance. The authority to sell or encumber shall not extend beyond one year, unless renewed by the court. Sec. 23. Court may order investment of proceeds and direct management of property.– The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other money of his ward in his hands, in real or personal property, for the best interests of the ward, and may make such other orders for the management, investment, and disposition of the property and effects, as circumstances may warrant. Sec. 24. Grounds for removal or resignation of guardian. – When a guardian becomes insane or otherwise incapable of discharging his trust or is found thereafter to be unsuitable, or has wasted or mismanaged the property of the ward, or has failed to render an account or make a return for thirty days after it is due, the court may, upon reasonable notice to the guardian, remove him as such and require him to surrender the property of the ward to the person found to be lawfully entitled thereto. The court may allow the guardian to resign for justifiable causes. Upon the removal or resignation of the guardian, the court shall appoint a new one. No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. Sec. 25. Ground for termination of guardianship. – The court motu proprio or upon verified motion of any person allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has come of age or has died. The guardian shall notify the court of such fact within ten days of its occurrence. Sec. 26. Service of final and executory judgment or order. – The final and executory judgment or order shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the province or city where his property or any part thereof is situated. Both the Local Civil Registrar and’ the Register of Deeds shall enter the final and executory judgment or order in the appropriate books in their offices. Sec. 27. Effect of the rule. – This Rule amends Rules 92 to 97 inclusive of the Rules of Court on guardianship of minors. Guardianship of incompetents who are not minors shall continue to be under the jurisdiction of the regular courts and governed by the Rules of Court. Sec. 28. Effectivity. - This Rule shall take effect on May 1, 2003 following its publication in a newspaper of general circulation not later than April 15, 2003. Rule 92 Guardianship Venue Sec. 1. Where to institute proceedings. - Guardianship of the person or estate of a minor or incompetent may be instituted in the Court of First Instance of the province, or in the justice of the peace court of the municipality, or in the municipal court of the chartered city where the minor or incompetent person resides, and if he resides in a foreign country, in the Court of First Instance of the province wherein his property or part thereof is situated; provided, however, that where the value of the property of such minor or incompetent exceeds the jurisdiction of the justice of the peace or municipal court, the proceedings shall be instituted in the Court of First Instance. In the City of Manila, the proceedings shall be instituted in the Juvenile and Domestic Relations Court.

Sec. 2. Meaning of word "incompetent." - Under this rule, the word "incompetent" includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation. Sec. 3. Transfer of venue. - The court taking cognizance of a guardianship proceeding, may transfer the same to the court of another province or municipality wherein the ward has acquired real property, if he has transferred thereto his bona-fide residence, and the latter court shall have full jurisdiction to continue the proceedings, without requiring payment of additional court fees. Rule 93 Appointment of Guardians Sec. 1. Who may petition for appointment of guardian for resident. - Any relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen years of age or over, may petition the court having jurisdiction for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent. An officer of the Federal Administration of the United States in the Philippines may also file a petition in favor of a ward thereof, and the Director of Health, in favor of an insane person who should be hospitalized, or in favor of an isolated leper. Sec. 2. Contents of petition. - A petition for the appointment of a general guardian must show, so far as known to the petitioner: (a) The jurisdictional facts; (b) The minority or incompetency rendering the appointment necessary or convenient; (c) The names, ages, and residences of the relatives of the minor or incompetent, and of the persons having him in their care; (d) The probable value and character of his estate; (e) The name of the person for whom letters of guardianship are prayed. The petition shall be verified; but no defect in the petition or verification shall render void the issuance of letters of guardianship. Sec. 3. Court to set time for hearing; Notice thereof. - When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for hearing the same, and shall cause reasonable notice thereof to be given to the persons mentioned in the petition residing in the province, including the minor if above 14 years of age or the incompetent himself, and may direct other general or special notice thereof to be given. Sec. 4. Opposition to petition. - Any interested person may, by filing a written opposition, contest the petition on the ground of majority of the alleged minor, competency of the alleged incompetent, or the unsuitability of the person for whom letters are prayed, and may pray that the petition be dismissed, or that letters of guardianship issue to himself, or to any suitable person named in the opposition. Sec. 5. Hearing and order for letters to issue. - At the hearing of the petition the alleged incompetent must be present if able to attend, and it must be shown that the required notice has been given. Thereupon the court shall hear the evidence of the parties in support of their respective allegations, and, if the person in question is a minor, or incompetent it shall appoint a suitable guardian of his person or estate, or both, with the powers and duties hereinafter specified. Sec. 6. When and how guardian for nonresident appointed; Notice. - When a person liable to be put under guardianship resides without the Philippines but has estate therein, any relative or friend of such person, or any one interested in his estate, in expectancy or otherwise, may petition a court having jurisdiction 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. 65 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

Sec. 7. Parents as guardians. - When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the child's property, with the duties and obligations of guardians under these rules, and shall file the petition required by section 2 thereof. For good reasons the court may, however, appoint another suitable person. Sec. 8. Service of judgment. - Final orders or judgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated. FAMILY CODE Chapter 3. Effect of Parental Authority Upon the Persons of the Children Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children or wards the following rights and duties: (1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; (2) To give them love and affection, advice and counsel, companionship and understanding; (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, selfdiscipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; (4) To 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 acquiring habits detrimental to their health, studies and morals; (5) To represent them in all matters affecting their interests; (6) To demand from them respect and obedience; (7) To impose discipline on them as may be required under the circumstances; and (8) To perform such other duties as are imposed by law upon parents and guardians. (316a) Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. [2180(2)a and (4)a ] Art. 222. The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the child so requires. (317) Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. (318a) Art. 224. The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children's homes duly accredited by the proper government agency. The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper. (391a) Chapter 4. Effect of Parental Authority Upon the Property of the Children

Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special 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. The ordinary rules on guardianship shall be merely suppletory except 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. (320a) Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family. (321a, 323a) Art. 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus given in whole or in part shall not be charged to the child's legitime. GARCHITORENA V. SOTELO Summary: Creditor of the wards applied that he be made their guardians, and while he was so, he mismanaged and misappropriated the properties of the wards. Present guardian now wants to nullify the foreclosure sale which the former guardian/creditor procured allegedly through fraud. Court ruled ifo of wards and new guardian. *If the interested person is a creditor and mortgagee of the estate minor, he cannot be appointed guardian of the person and property of the latter. No man can serve two masters (Relevant to RULE 93.4) Facts: Cabildo St. Property: -Originally owned by Asuncion Jarata -Jarata mortgaged it to PERFECTO GABRIEL …to secure a loan P6k w/12%interest …2 1/2 JARATA died, left 8 minor children by her husband CELERINO GATCHALIAN …JARATA executed a will 2 days before her death  Will was prepared by PERFECTO GABRIEL  The property was devised to her 8 minor children  GABRIEL was named the guardian of the children  Husband GATCHALIAN named the executor  GABRIEL, atty for GATCHALIAN, filed will for probate  Will admitted to probate  GABRIEL presented a project of partition: 66 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

…CELERINO waived usufructuary right over his wife's estate ifo children PROBATE COURT: estate closed, GATCHALIAN relieved as executor  GATCHALIAN thereafter appointed as GUARDIAN of the minor children and their property (upon his application) >admitted in the application that he already received the minor's property, but did not disclose that it was mortgaged to him  GABRIEL acted as guardian for 6 years, when he also acted as their creditor >finances of the wards deteriorated considerably:  last accounting by Gabriel showed deficit of P3,730.10  Gabriel executed a 2nd mortgage on the property ifo Sta. Clara Monastery, of which he was the attorney in fact, to secure payment of an additional load of P2500, w/10% per annum. (P2500 was paid to Fernandez Hermanos on account of a larger sum misappropriated by Gatchalian) -PERFECTO GABRIEL foreclosed the lot, bought it in the public auction …GATCHALIAN (father of the wards) wanted to raise capital to engage in business, told Gabriel that one NAVARRO was willing to lend him P12k on the property in question …GABRIEL told GATCHALIAN that to be able to "make a transaction", GABRIEL would sue GATCHALIAN, bid for the property and then resell it to GATCHALIAN - scheme agreed to by GATCHALIAN >so GABRIEL sued GATCHALIAN for foreclosure of the mortgage as guardian of his minor children >pursuant to the scheme, GATCHALIAN filed an ANSWER admitting each and every allegation of GABRIEL >GABRIEL, as attorney for STA.CLARA filed complaint in intervention to foreclose the 2nd mortgage; GATCHALIAN also admitted each and every allegation TC: GATCHALIAN pay with interest plus sold mortgage property to GABRIEL as the highest bidder of the property -GABRIEL transferred the property to CARMEN GARCHITORENA …before the sale was approved by the court, GABRIEL agreed to sell the property to GARCHITORENA …GARCHITORENA indorsed and delivered a check to GABRIEL of P1k on account of the purchase price …GATCHALIAN attempted to intervene and file a motion for postponement of GABRIEL's motion to confirm the sale >BUT was then agreed to proceed with the sale, relying on GABRIEL's renewed promise to resell the property to him >In accordance with this promise, he looked for a broker and a prospective lender but was warned that it would have been improper for GATCHITORENA to appear as the purchaser, he being the guardian of the minors >He then went back the next day to the law office of GABRIEL but there found GARCHITORENA already executing a mortgage deed -all these were corroborated by GARCHITORENA's witnesses …SALE was approved by the court …GABRIEL executed a deed conveying the property to GARCHITORENA …GARCHITORENA mortgage lot simultaneously to STA.CLARA to secure payment of a loan w/interest. -VICENTE SOTELO: Guardian of 8 minor children of ASUNCION JARATA (original owner) …he bought action to annul the judgment obtained by GABRIEL (foreclosure and for sale): Judgment obtained through fraud -GARCHITORENA transferred it to JESUS PELLON

-PELLON was able to acquire Torrens Certificate for the said land …joined PELLON as a party defendant TC: ifo SOTELO …new title of PELLON CANCELLED and REPLACED by new one in the name of the minors …GABRIEL & GARCHITORENA appealed, PELLON did not CA (en banc): affirmed w/ modification  New title ifo of minor children of JARATA (wards of SOTELO) subject to the alleged mortgage ifo Santa Clara Monastery  Amount plaintiff shall have paid on account of mortgage be deducted from amounts due to GABRIEL or ST. CLARA MONASTERY, w/ interests  GABRIEL and GARCHITORENA shall render accounting of income derived by them from date minors were ejected until date it was placed in receivership  GARCHITORENA may sue GABRIEL in a different suit WON THE FACTS PROVEN SUFFICIENT TO ESTABLISH A COLLUSION BETWEEN GABRIEL AND GATCHALIAN IN THE FORECLOSURE SUIT INSTITUTED BY GABRIEL AGAINST GATCHALIAN? NO 1. Gabriel was the predecessor of GATCHALIAN as the guardian of the property of his wards. He was the one who executed the STA. CLARA mortgage on behalf of the minors -he had the duty to preserve the estate of his wards -he was formerly the employer and legal counselor of Gatchalian (therefore, had a Predominating influence over Gatchalian) -elements of confindence and active good faith essential in the relation of a guardian and ward. -he argues that the minors and Gatchalian would have no defense anyway if he sued him: court said that if he wanted to collect his mortgage, he should have informed the court of the situation so that the court could authorize the sale of the property to best advantage and save something for the minors 2. Gabriel should have known that he could not serve antagonistic interests, and if the court had been apprised that he was a creditor and mortgagee of the estate, he would not have been appointed as guardian 3. No man can serve two masters; for either he will hate the one, and love the other; or else he will hold to the one, and despise the other." The truth of this Divine doctrine is exemplified in the guardianship of the Gatchalian minors, wherein Perfecto Gabriel undertook to serve two masters; Perfecto Gabriel or the Santa Clara Monastery as mortgagee and the said minors as mortgagors. Of course, the latter were "despised" and had to institute a series of litigations lasting now over ten years to secure redress.

-As a matter of act, Garchitorena has completely divested herself of the title to the property in question, which now stands in the name of Jesus Pellon, who did not appeal and thereby acquiesced in the judgment ordering the cancellation of said title. Garchitorena's conduct in simulating the transfer of the property in question to Jesus Pellon after the commencement of this action was inconsistent with honesty and good faith Disposition: judgment affirmed ASSIGNMENT NO.9 : BONDS OF GUARDIANS Rule 94 Bonds of Guardians Sec. 1. Bond to be given before issuance of letters; Amount; Conditions.- Before a guardian appointed enters upon the execution of his trust, or letters of guardianship issue, he shall give a bond, in such sum as the court directs, conditioned as follows: (a) To make and return to the court, within three (3) months, a true and complete inventory of all the estate, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him; (b) To faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; (c) To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs; and at the expiration of his trust to settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; (d) To perform all orders of the court by him to be performed. Sec. 2. When new bond may be required and old sureties discharged. - Whenever it is deemed necessary, the court may require a new bond to be given by the guardian, and may discharge the sureties on the old bond from further liability, after due notice to interested persons, when no injury can result therefrom to those interested in the estate. Sec. 3. Bonds to be filed; Actions thereon. - Every bond given by a guardian shall be filed in the office of the clerk of the court, and, in case of the breach of a condition thereof, may be prosecuted in the same proceeding or in a separate action for the use and benefit of the ward or of any other person legally interested in the estate.

WON the minors were prejudiced by the foreclosure of the mortgage? YES -Gabriel bought the property at P9,600 and immediately sold it to Garchitorena for P10,367, thereby enriching himself at the expense of his former wards. Regardless of the Machuca offer to buy, or the Navarro offer to loan on, the property in question, and assuming that the sale by Gabriel to Garchitorena was genuine as contended by the petitioners, and not a mere scheme to frustrate the minors' recovery of said property as contended by the respondent, Gabriel's attempt to profit, however little, at the expense of the minors cannot be sanctioned by the Court. It was a breach of trust which the law condemns under any and all circumstances

GUERRERO V. TERAN Summary: Present guardian of the minors collects from the administrator of the estate from whom the minors had interest. However, it appears that the former guardian of the minors took over the management of their interests in the said estate for some time before being replaced. Court held that the guardian, and not the administrator of the estate from whom the minors had interest, is liable for the indebtedness collected by the present guardian of the minors, as she did give a bond and the mere fact of removal did not relieve her from any liability. *The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian (Duration of liability. R94.3)

WON there's extrinsic or collateral fraud by reason of which the judgment rendered in the foreclosure suit may be annulled in this separate action? No…mahaba…irrelevant to guardianship

Facts: -Antonio Sanchez Munoz died. His estate was administrated by LEOPOLDO TERAN from SEPT 1901, entering a bond of $10k gold for faithful compliance.

WON the sale by Gabriel to Gatchitorena was valid (WON she was a purchaser in GF)? NO 67 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

-it appears that Antonio Sanchez Munoz had the minors Maria Manuela and Maria del Carmen Sanchez Munoz as heirs. -March 1902: MARIA MUNOZ y GOMEZ was appointed, after paying bond for faithful compliance of duties, as the GUARDIAN of the 2 minors -OCT1906: MARIA MUNOZ y GOMEZ was removed as guardian because she was not a resident of the Philippines at the time of her appointment. Felix Samson was appointed as guardian for the heirs, executed a bond for faithful compliance. -March 1908: SALVADOR GUERRERO, the present guardian of the minors (though no info when he was appointed) filed action for recovery of P4,129.56 and costs from LEOPOLDO TERAN ANSWER: only admitted P188.39 plus alleged the plaintiff owed him P482.14 so the plaintiff even owes him P239.75 TC: TERAN liable to the plaintiff for only P3447.46 with 6% -TERAN appealed

principal. But to do so, they must point out property subject to seizure in an amount sufficient to satisfy the debt. (Right of Surety. R94.3)

WON TERAN, as the administrator of the estate of Antonio Sanchez Munoz from September 1901 until October 1906, is liable to the plaintiff for the items listed (comprised of loans made to different persons for different accounts)? NO -Teran was the administrator of the estate of the minors only from September 1901 when he was appointed, until March 1902, when MARIA MUNOZ y GOMEZ was appointed as guardians for the minors and the latter's estate. -as such, MARIA MUNOZ y GOMEZ was the actual guardian of the minors and their estate and therefore, is responsible to the minors for the administration of their interests in the estate -if during this time she allowed other persons to handle the property of her wards, and if any mismanagement or loss occurred thereby, the responsibility must fall upon her -The mere fact that she had been removed as said guardian did not relieve her, nor her bondsmen from liability to the minors during the time that she was duly acting as said guardian. -MARIA MUNOZ GOMEZ may have a COA against the persons to whom she entrusted the direct management of the estate. -summary of liabilities (no dates when amounts were due)  TERAN liable to plaintiffs for the fruits and profits from their interests in the estate of ANTONIO SANCHZ MUNOZ from September 1901 to March 1902 - which is only P188.39  DONA MARIA MUNOZ liable to plaintiffs for the fruits and profit resulting from the management of the estate from MARCH 1902 until OCTOBER 1906

WON bondsmen should be credited w/ P4400 and thus benefit from the principle of excusion? NO. -Surety has benefit of levy (excusion), even when the judgment is rendered against both the surety and the principal. [A1834, NCC] -BUT [A1832, NCC]: the surety must point out property of the principal creditor which can be sold and which is sufficient to cover the amount of the debt. -MANRESA EXPLANATION: property should be  Realizable  Situated w/n territory of the court/state - the attachment of property situated a great distance away would be a lengthy and extremely difficult proceeding and one that, if actually not opposed to, yet does not very well accord w/ the purpose of the bond (to insure the fulfillment of the obligation + furnish the creditor with the means of obtaining its fulfillment w/o hindrance or delays) -HILL & CO v. BOURCIER and POND: plea of excusion does not stay the proceedigns but judgment will be modified so as to require the creditor to proceed by execution against the property of the principal and to exhaust it before resorting to the property of the surety. -HERE: The property pointed out by the sureties is not sufficient to pay the indebtedness; it is not salable; it is so encumbered that third parties have, as we have indicated, full possession under claim of ownership without leaving to the absconding guardian a fractional or reversionary interest without determining first whether the claim of one or more of the occupants is well founded.

[OBITER] WON it was proper to remove DONA MARIA y MUNOZ as the guardian on the ground that she was not residing in RP? YES There is nothing in the law which requires the courts to appoint residents only as administrators or guardians. However, notwithstanding the fact that there are no statutory requirements upon this question, the courts, charged with the responsibilities of protecting the estates of deceased persons, wards of the estate, etc., will find much difficulty in complying with this duty by appointing administrators and guardians who are not personally subject to their jurisdiction. Notwithstanding that there is no statutory requirement, the courts should not consent to the appointment of persons as administrators and guardians who are not personally subject to the jurisdiction of our courts here. ARROYO V. JUNGSAY Summary: the sureties of the absconding former guardian, who is being sued for the bond he executed upon appointment, are invoking the principle of excussion to escape liability. Court held that they must first point out available properties first to be able to enjoy said principle *The sureties of a guardian against whom judgment has been entered, may demand the benefit of a levy (exclusion) of the principal’s property, even when judgment is rendered against both surety and 68 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

Facts -FLORENTINO HILARIO JUNGSAY was appointed as guardian of the imbecile TITO JOCSING. He executed a bond, secured by as surety executed by the bondsmen of JUNGSAY. -HILARIO absconded with the funds of the ward. -so new guardian of TITO, JOSE M. A. ARROYO, sued JUNGSAY and his bondsmen for the P6k absconded, plus interests and costs TC: BOTH JUNGSAY and BONDSMEN liable -bondsmen appealed: they should be afforded the benefit of excusion, thus, should be credited P4,400 (value of certain property of the absconding guardian, which is however in the exclusive possession of 3P under claim of ownership

RULE 95 SEL LING AND ENCUMBERING PROPERTY OF WARD Sec. 1. Petition of guardian for leave to sell or encumber estate. - When the income of an estate under guardianship is insufficient to maintain the ward and his family, or 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, the guardian may present a verified petition to the court by which he was appointed setting forth such facts, and praying that an order issue authorizing the sale or encumbrance. Sec. 2. Order to show cause thereupon. - If it seems probable that such sale or encumbrance is necessary, or would be beneficial to the ward, the court shall make an order directing the next of kin of the ward, and all persons interested in the estate, to appear at a reasonable time and place therein specified to show cause why the prayer of the petition should not be granted. Sec. 3. Hearing on return of order; Costs. - At the time and place designated in the order to show cause, the court shall hear the proofs and allegations of the petitioner and next of kin, and other persons

interested, together with their witnesses, and grant or refuse the prayer of the petition as the best interests of the ward require. The court shall make such order as to costs of the hearing as may be just. Sec. 4. Contents of order for sale or encumbrance, and how long effective; Bond. - If, after full examination, it appears that it is necessary, or would be beneficial to the ward, to sell or encumber the estate, or some portion of it, the court shall order such sale or encumbrance and that the proceeds thereof be expended for the maintenance of the ward and his family, or the education of the ward, if a minor, or for the putting of the same out at interest, or the investment of the same as the circumstances may require. The order shall specify the causes why the sale or encumbrance is necessary or beneficial, and may direct that estate ordered sold be disposed of at either public or private sale, subject to such conditions as to the time and manner of payment, and security where a part of the payment is deferred, as in the discretion of the court are deemed most beneficial to the ward. The original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale, but the judge may, if deemed expedient, require an additional bond as a condition for the granting of the order of sale. No order of sale granted in pursuance of this section shall continue in force more than one (1) year after granting the same, without a sale being had. Sec. 5. Court may order investment of proceeds and direct management of estate. - The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other of his ward's money in his hands, in real estate or otherwise, as shall be for the best interest of all concerned, and may make such other orders for the management, investment, and disposition of the estate and effects, as circumstances may require. ZABATE VS. PONCE [R95.1 & 2] Summary: 2nd wife of great grandfather of minor contested the orders in the guardianship proceedings because there was no notice given to her (she alleging that she owned the said properties) *NEXT OF KIN def (citing LOPEZ V. TEODORO) Facts: -Ignacia Zabate was the step-grandmother (2nd wife of minor's great grandfather). -Minor was JOSE PONCE -there was an ongoing guardianship proceeding of the minor JOSE PONCE. NO NOTICE was given to them -she thus filed a MOTION FOR ANNULMENT OF PREVIOUS ORDERS: 1. Authorizing mortgage of minor's interests in 2 lots 2. Sale of the minor's interests in the 2 lots GROUND: lack of notice TC: Denied motion The movant being merely the step-grandmother, not a relative, she is not entitled to notice of the guardianship proceedings WON a step-grand-grandmother is entitled to receive notice in a guardianship proceeding? NO. 1. only the NEXT OF KIN OF THE WARD are entitled to notice of the guardianship proceedings -NEXT OF KIN (LOPEZ v. TEODORO): those relatives whose relationship is such that they are entitled to share in the minor's estate as distributees -HERE: IGNACIA is the 2nd wife of the minor's great grandfather …so ABSOLUTELY NO INTEREST - not even a remote heir in case of the minor's death (not related by blood to the minor) 2. Even if true that the properties mortgaged and sold belonged to her and her children, she should have filed a separate action in the court of proper jurisdiction LOPEZ VS. TEODORO 69 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

Summary: Sister of incapacitated ward contested the sale of the only property of the ward, alleging that there was no notice nor hearing first conducted by the court before authorizing the said sale. The court held that she, not being an heir or a creditor prejudiced by the said sale, is not entitled to notice nor to contest the said sale. *NEXT OF KIN [R95.2]: not the next of kindred but those relatives who share in the estate according to the statute of distribution, including those claiming per stripes or by representation *Only the children have an interest in the land of their father, besides the creditors, and only they or the creditors who may have been prejudiced by the sale have a right to object thereto. [Opposition to sale or encumbrance, by whom filed, R95.2] *Appeal, not certiorari or mandamus, is the proper remedy against an order of the court authorizing the sale of the ward’s property [Remedy against order of the court authorizing the guardian to sell the ward’s property, R96.4] Facts: -Eulalio Lopez, Sr. is already incapacitated. He is under the judicial guardianship of Eulalio Lopez, Jr. But is under the actual care and custody of his sister SALVACION LOPEZ -EL Sr. owned absolutely a hacienda in SILAY, NEGROS OCCIDENTAL. -there were claims against the estate of the ward by the Gamboas (Senen and Adelaida) which amounts to P7,312 plus 12%. These loans were properly authorized by the court. TC: allowed the payment of the court, and if no funds to pay the debt, guardian was ordered to take the necessary steps for the sale of some of the property of the guardianship *said order authorized the sale of some of the property w/o notice to the next of kin of the ward and all persons interested in the estate *no hearing to show cause why the sale should not be allowed *no specification WON sale should be done privately or publicly -pursuant to the order, EL Jr. sold the hacienda, the only property of EL Sr., to JESUS JALBUENA. JALBUENA bound himself to pay the mortgage debt and other obligations of the said property. -Salvacion Lopez (sister of EL Sr. and who had actual care and custody of EL Sr.) filed MR of court's order authorizing sale: it was prejudicial to EL Sr.'s interest >>>MR DENIED >>>SO SALVACION filed PETITION FOR CERTIORARI AND MANDAMUS WON CERTIORARI AND PROHIBITION WAS THE PROPER REMEDY FOR CONTESTING THE ORDER? NO - Without deciding the legality or illegality of the sale, or whether this matter should be ventillated in an ordinary action instead of in a proceeding for certiorari, it is evident that appeal and not certiorari or mandamus is the proper remedy. Unquestionably, the court of first instance in which the guardianship proceedings were pending had jurisdiction to order the questioned sale. The court's jurisdiction is not disputed. Nor was there an abuse of discretion, judging from the averments in the answers. It appears that the outstanding indebtedness of the guardianship properly and legally incurred amounted to P36,833.66, part of which was due the petitioner for the support and maintenance of the incapacitated. WON the order of the court authorizing the sale w/o hearing the next of kin of the ward was proper? YES 1. The outstanding debt of the ward at the time of sale was P36,833.66. Part of this was due to SALVACION for support and maintenance of EL Sr. 2. SALVACION had no legal interest in her complaint. a. She is only the ward's sister - not a forced heir so not prejudiced by the sale she seeks to impugn b. Even if she was a creditor, her credit was not impaired but was in fact paid

WON SALVACION IS A "NEXT OF KIN" WHICH IS ENTITLED TO TAKE PART IN THE PROCEEDINGS FOR THE DETERMINATION OF THE PROPERNESS OF THE SALE? NO -NEXT OF KIN: -relatives whose relationship is such that they are entitled to share in the estate as distributees -not the next of kindred but those relatives who share in the estate according to the statute of distribution including those claiming stripes or by representation *here, sale was not opposed by the children nor the creditors. If ever there were creditors prejudiced, they have the right to object to the sale

RULE 96 GENERAL POWE RS AND DUTIES OF GUA RDIANS Sec. 1. To what guardianship shall extend. - A guardian appointed shall have the care and custody of the person of his ward, and the management of his estate, or the management of the estate only, as the case may be. The guardian of the estate of a nonresident shall have the management of all the estate of the ward within the Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship. Sec. 2. Guardian to pay debts of ward. - Every guardian must pay the ward's just debts out of his personal estate and the income of his real estate, if sufficient; if not, then out of his real estate upon obtaining an order for the sale or encumbrance thereof. Sec. 3. Guardian to settle accounts, collect debts, and appear in actions for ward. - A guardian must settle all accounts of his ward, and demand, sue for, and receive all debts due him, or may, with the approval of the court, compound for the same and give discharges to the debtor, on receiving a fair and just dividend of the estate and effects; and he shall appear for and represent his ward in all actions and special proceedings, unless another person be appointed for that purpose. Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. - A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereon, so far as may be necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order so to do, and apply so much of the proceeds as may be necessary to such maintenance. Sec. 5. Guardian may be authorized to join in partition proceedings after hearing. - The court may authorize the guardian to join in an assent to a partition of real or personal estate held by the ward jointly or in common with others, but such authority shall only be granted after hearing, upon such notice to relatives of the ward as the court may direct, and a careful investigation as to the necessity and propriety of the proposed action. Sec. 6. Proceedings when person suspected of embezzling or concealing property of ward. - Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the estate of the ward as creditor, heir, or otherwise, that anyone is suspected of having embezzled, concealed, or conveyed away any money, goods, or interest, or a written instrument, belonging to the ward or his estate, the court may cite the suspected person to appear for examination touching such money, goods, interest, or instrument, and make such orders as will secure the estate against such embezzlement, concealment or conveyance. Sec. 7. Inventories and accounts of guardians, and appraisement of estates. - A guardian must render to the court an inventory of the estate of his ward within three (3) months after his appointment, and annually after such appointment an inventory and account, the rendition of any of which may be compelled upon the application of an interested person. Such inventories and accounts shall be sworn to by the guardian. All the estate of the ward described in the first inventory shall be appraised. In the appraisement the court may request the assistance of one or more of the inheritance tax appraisers. And 70 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

whenever any property of the ward not included in an inventory already rendered is discovered, or succeeded to, or acquired by the ward, like proceedings shall be had for securing an inventory and appraisement thereof within three (3) months after such discovery, succession, or acquisition. Sec. 8. When guardian's accounts presented for settlement. - Expenses and compensation allowed. Upon the expiration of a year from the time of his appointment, and as often thereafter as may be required, a guardian must present his account to the court for settlement and allowance. In the settlement of the account, the guardian, other than a parent, shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and also such compensation for his services as the court deems just, not exceeding fifteen per centum of the net income of the ward. IN RE GUARDIANSHIP OF THE MINOR ROY REGINALD LELINA. SEVERO VILORIA VS. ADMINISTRATOR OF VETERANS AFFAIRS Summary: Administrator of Veteran Affairs claims that the amounts received by the ward was wrongfully issued, so sought refund (and alleging that their finding that there was erroneous issuance was final and conclusive). The court held that status quo should be observed, that the Administrator cannot make their findings binding upon RP courts when they are seeking relief from it, and the claim arguing erroneous payment should be tried separately. *Conflicts regarding the ownership or title to the property in the hands of the guardian in his capacity as such, should be litigated in a separate proceeding, the court in the guardianship proceeding being solely concerned with the ward’s care and custody and proper administration of his properties. [questions of title to property in the hands of the Guardian. R.96.1] *After a guardian has been appointed by the court for the minor child of one who is alleged to have been a member of the Armed Forces, and the guardian collects money by way of insurance benefits and unpaid salary, he becomes the lawful possessor of the amounts paid and cannot be deprived thereof on the sole allegation of the Veterans Administrator that the money was erroneously paid, the burden being upon the Administrator to satisfy the court that the alleged mistake was really committed [Lawful possession of the Ward’s Estate, R96.2] Facts: -Allegedly, CONSTANCIO LELINA served as a member of the US ARMED FORCES during the Japanese war. -CONSTANCIO had a son named ROY REGINALD LELINA. -When CONSTANCIO died, ROY REGINALD received the arrears pay, insurance, and other benefits from the US VETERANS ADMINISTRATION. -SEVERO VILORiA was appointed guardian of ROY REGINALD. The guardian was authorized to withdraw from the estate of his ward the sum of P30 a month for ROY REGINALD's support and other expenditures. -in the guardianship proceedings... ...US VETERANS ADMINISTRATION filed motion to stop further payment of monthly allowances to the minor …allegedly, they received certain letters from its central office in Washington DC to the effect that CONSTANCIO LELINA was not engaged in guerilla or other service in the armed forces of US, thus not entitled to payment of gratuitous National Service Life Insurance >>>GRANTED …ADMINISTRATOR OF VETERAN AFFAIRS filed a motion for a refund of $2,879.68, the balance of gratuitous insurance benefits allegedly wrongfully paid still in deposit with PNB >>guardian VILORIA opposed: submitted evidence to show that CONSTANCIO was duly recognized by both RP and US Armies >>>DENIED ….GUARDIAN moved to be allowed to withdraw P4k from ROY REGINALD's estate to meet his needs.

>>>OPPOSED by ADMINISTRATOR OF VETERAN AFFAIRS: NO JURISDICTION: minor's rights to NATIONAL SERVICE LIFE INSURANCE is governed exclusively by the S.S. Code Annotated, which provides that decisions of the Administrator shall be FINAL AND CONCLUSIVE ON ALL QUESTIONS OF LAW OR FACT AND NO OTHER OFFICIAL OF THE US, EXCEPT A JUDGE OR JUDGES OF THE UNITED STATES COURTS, SHALL HAVE JURISDICTION TO REVIEW SUCH DECISIONS TC: Status quo -the question of WON Constancio did render valid military service to justify payment to him or to his heirs should be determined in an appropriate action -the guardian would not be allowed to deposit any amount for the meantime -the Administrator would not be allowed refund -Administrator filed MR: DENIED -now this appeal WON theUS Code Annotated should be applied to the present case? NO (kapal face a…) -distinguish Actions against Administrator vs. Actions where Veterans Administrator seeks a remedy from our courts. When actions are filed against the Administrator, it must be filed strictly in accordance with the conditions imposed by the Veteran's Act, including exclusive review by US Courts. -HERE: no law or treaty which would make the findings of the VETERANS Administrator, in actions where he is a mere party, conclusive on our courts …this argument would deprive our tribunals of judicial discretion and render them mere subordinate instrumentalities of the veterans Administrator -in submitting itself to the jurisdiction of the court, it cannot put in issue the legality of its order -the burden lies upon the Administrator to satisfy the court that the alleged mistake was really committed -the Philippine Court's determination of the question is as binding upon the Veteran's Administrator as upon any other litigant -From the time the amounts sought to be recovered were paid to the guardian, for the ward's benefit, the latter became their lawful possessor and he cannot be deprived thereof on the sole allegation of the Veteran's Administrator that the money was erroneously paid WON a claim of improper payment to the ward (through the guardian) of benefits is properly filed in the guardianship proceedings? NO -Guardianship proceedings are solely concerned with the ward's care, custody and proper administration and management of his properties. -Conflicts regarding ownership or title to the property in the hands of the guardian, in his capacity as such, should be litigated in a separate proceeding LIM SIOK HUEY VS. LAPIZ Summary: CHUA PUA LUN died in a Jeepney collision as a passenger. The heirs through their counsel and the guardian ad litem appointed filed a claim for damages against the drivers of the colliding vehicles and its owners. Court held that the claim should be dismissed, it not being shown that the plaintiffs who are foreigners, allowed the suit to be brought. *A guardian ad litem is any competent person appointed by the court for purposes of a particular action or proceeding involving a minor. Although no express authority is required to act in a representative capacity as a negotiorum getor, one who has been appointed guardian ad litem by the court for minor heirs is not acting in that capacity and must have some express authority from the persons he purports to represent. [Guardian ad Litem. R96.2]

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*The representation therefore, by an appointed guardian ad litem of the wards in the prosecution of a case involving the latter w/o proper authority from them is ineffective. Such representation would not suffice to meet the requirement of the rule, which provides that every action must be prosecuted in the name of the real party in interest [compromise by guardian ad litem. R 96.3] -CHUA PUA LUN was riding the JAGUAR JEEPNEY when it was hit by a KAPALARAN BUS JAGUAR JEEPNEY driver: Alfredo Lapiz JAGUAR JEEPNEY owner: VICTORINO SAPIN KAPALARAN BUS driver: VICENTE REYES KAPALARAN BUS owner: LAZARO LIMJUCO -plaintiffs surviving spouse and four surviving children, represented by their counsel, filed an action to recover damages amounting to P83,701.30 -the defendants all alleged that they were neither negligent and neither the owners of the vehicles -court appointed CHUA PUA TAM (brother of deceased) as guardian ad litem to represent the 2 minor children of CHUA PUA LUN TC: dismissed complaint: no evidence on record to show that the plaintiffs have authorized much less directed the commencement of the present action:  Plaintiffs are all citizens and residents of Communist China  Plaintiffs have not communicated w/ anyone in RP in connection with the filing of an action for damages in their behalf  Brother in law of first plaintiff and uncle of the minor children testified that the plaintiffs had not written to him nor had he communicated with them  Letters supposedly sent to Lim Ping Kok did not contain any intimation much less of authorization for the filing of the claim for damages WON the plaintiffs has not authorized anyone to file case? NO the plaintiffs who are the widow and children of the deceased Chua Pua Lun are all citizens and  residents of Communist China  hey have not sent any communication to anyone in the Philippines giving authority to take whatever action may be proper to obtain an indemnity for his death other than two letters supposedly sent to Lim Ping Kok by his sister Lim Siok Huey and his mother, which do not contain any intimation nor authorization for the filing of the present action.  2 letters: at most contain an inquiry w/ regard progress of the case and the administration of the duck-raising business left by deceased  Initiated only by the counsel: while a lawyer is presumed to be properly authorized to represent any cause in which he appears, he may however be required by the court on motion of either party to produce his authority under which he appears WON court erred in finding that there was no authority to fie the case when such question was not raised in issue nor was evidence adduced on the point? NO -the question was properly raised by counsel for the defendants as otherwise the trial court would not have given proper attention to the matter. -court even made this comment: "While an attorney representing a client in a case pending in Court is presumed to be authorized for the purpose, nevertheless in the case under consideration, such presumption had been destroyed and come by the very evidence presented by counsel himself ." -the same was expressly raised by defendants Reyes and Limjuco not only in the course of the trial but in their answers. Moreover, this flaw in the case of the plaintiffs was discovered by the court in the course of the trial in view of the evidence presented by the very counsel of plaintiffs. In view of such development, the trial court could not but take notice of the matter considering the prayer in

defendants' answer that they be given "such reliefs as this Court may deem just and equitable in the premises.".

Note: Please see Republic Act 6809 which lowered the age of majority from twenty-one to eighteen years..

WON court erred in dismissing the complaint when the authority to prosecute the case stems from the appointment of Chua Pua Tam as guardian ad litem of minors Pua Sam? NO. -while this representation may only benefit the minors, and not the other plaintiffs, yet the same would not suffice to meet the requirement of the rule which provides that every action must be prosecuted in the name of the real party in interest -should show that Chua Pua Tam was authorized by the heirs abroad to act as such in behalf of the minors

Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of twenty-one years. Emancipation also takes place: (1) By the marriage of the minor; or (2) By the recording in the Civil Register of an agreement in a public instrument executed by the parent exercising parental authority and the minor at least eighteen years of age. Such emancipation shall be irrevocable. (397a, 398a, 400a, 401a) Art. 235. The provisions governing emancipation by recorded agreement shall also apply to an orphan minor and the person exercising parental authority but the agreement must be approved by the court before it is recorded. (n) Art. 236. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life. (412a)

WON court erred in dismissing the case when it could be considered prosecuted by a negotiorum gestor? NO -in the present case there is need of express authority on his part to represent the minors by virtue of an express provision of our Rules of Court. In negotiorum gestio no such authority is required. RULE 97 TERMINATION OF GUA RDIANSHIP Sec. 1. Petition that competency of ward be adjudged, and proceedings thereupon. - A person who has been declared incompetent for any reason, or his guardian, relative, or friend, may petition the court to have his present competency judicially determined. The petition shall be verified by oath, and shall state that such person is then competent. Upon receiving the petition, the court shall fix a time for hearing the questions raised thereby, and cause reasonable notice thereof to be given to the guardian of the person, so declared incompetent, and to the ward. On the trial, the guardian or relatives of the ward, and, in the discretion of the court, any other person, may contest the right to the relief demanded, and witnesses may be called and examined by the parties or by the court on its own motion. If it be found that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall cease. Sec. 2. When guardian removed or allowed to resign; New appointment. - When 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 (30) days after it is due to render an account or make 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 same; and upon his resignation or removal the court may appoint another in his place. Sec. 3. Other termination of guardianship. - The marriage or voluntary emancipation of a minor ward terminates the guardianship of the person of the ward, and shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian. The guardian of any person may be discharged by the court when it appears, upon the application of the ward or otherwise, that the guardianship is no longer necessary. Sec. 4. Record to be kept by the justice of the peace or municipal judge. - When a justice of the peace or municipal court takes cognizance of the proceedings in pursuance of the provisions of these rules, the record of the proceedings shall be kept as in the court of first instance. Sec. 5. Service of judgment. - Final orders or judgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated. Family Code on Emancipation Title X: Emancipation and the Age of Majority

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CELIS VS. CAFUIR Summary: Mother of a boy now wants to recover him from the spouses who took care of him, but the latter alleged that the mother already definitely renounced her custody and patria potestas over her child, with the execution of 2 documents. Court held that the mother merely entrusted her son to the foster mother because of circumstances beyond her control and that the designation of the foster mother as a guardian does not mean that the guardian will always assume and discharge the duties of the office or position, as guardianship is temporary. Also, the two documents contained a future condition that the foster parents could adopt the boy, but they did not so can't argue now that they are entitled to the boy. * Guardianship is always or almost invariably understood to be temporary. While one is a minor or is incompetent, a guardian is appointed; but when minority has passed or incapacity has ceased, guardianship also terminates. [temporary nature of guardianship. R97.1] Facts: -ILEANA CELIS gave birth to JOEL CAFUIR -father of JOEL seems to be an American soldier though unknown -ILEANA's father did not want ILEANA to raise JOEL, angry and extremely displeased for the alleged disgrace that ILEANA brought onto herself and the family for having maintained ilicit relations with a man to whom she had not been married -ILEANA's father also did not want her to have JOEL in their paternal home -so ILEANA decided to give the custody of JOEL to SOLEDAD CAFUIR, executing 2 documents:  1st document: entrusts JOHN/JOEL to SOLEDAD because she did not have means to bring up the child.  2nd document: designates SOLEDAD as the real guardian of JOHN/JOEL CAFUIR *both documents indicate that Mrs. Soledad could claim for adoption of Joel/John -9 days after delivery, JOEL was given to SOLEDAD -ILEANA spent several days after giving birth in SOLEDAD's house while recuperating then returned to her paternal home, merely visiting Joel every Saturday, giving him condensed milk, food and a little money -Now that ILEANA is married to AGUSTIN RIVERA, and the two are now more financially capable and want JOEL CAFUIR back with them, they demanded that JOEL be given back. SOLEDAD refused so they filed PETITION FOR HABEAS CORPUS TC: granted Habeas Corpus

WON ILEANA RENOUNCED CUSTODY OF HER CHILD IN FAVOR OF SOLEDAD? NO -DIAZ v. ESTRERA is not applicable because in that case, Diaz the mother completely renounced her custody over the child (even imposing upon herself penal sanctions should she decide to claim back her child) and custody was granted to the father of the child, though illegitimate -HERE: SOLEDAD and husband are strangers to the child, not related in any degree by consanguinity or affinity -ILEANA merely entrusted her son to SOLEDAD. ENTRUSTED cannot convey the idea of definite and permanent renunciation of the mother's custody of her child WON ILEANA, BY MAKING SOLEDAD THE REAL GUARDIAN OF JOEL, COMPLETELY RENOUNCED CUSTODY OVER HER SON? NO -The designation of one as the guardian of another cannot and does not mean that said guardian will always assume and discharge the duties of the office or position. Guardianship is always or almost invariably understood to be temporary. While one is a minor or is incompetent, a guardian is appointed; but when minority has passed or incapacity has ceased, guardianship also terminates. -While petitioner Ileana was still unable to care for and support her child and because she could not bring said child to live with her in the home of her father, she entrusted its custody and care to respondent. Now, that she has been emancipated from the parental authority of her father and now that she has already been married and is now in a position to care for and support her own child, this with the consent and desire of her husband, who joins her in the petition, there can no longer be any reason for depriving her of the custody of her boy. In her legitimate efforts, and to have her realize her natural desire in this respect, the law and this court should give her every help. -SOLEDAD had the option to adopt JOEL but she did not. The statement in the document envisages a future act: that no one else may adopt JOEL except SOLEDAD. -SOLEDAD spent for education, care, support of JOEL. She could claim in a separate proceeding for the expenses she rendered while taking care of JOEL DISSENTING, TUASON -mainly argues that ILEANA intended that JOEL would have permanent possession and custody of her son and she could not now just get the boy back CRISOSTOMO V. ENDENCIA Summary: Brother of a former ward was not given notice of the petition for termination of the guardianship, which granted the termination of the guardianship after the guardian and the ward herself testified that she can already take care of herself. Thus, the brother wanted the nullification of the order on ground of lack of notice to him. Court held that no notice to him needed, and that the judgment he sought to be annulled was already final and executory. *The court, after considering the evidence offered by the parties to the petition for the termination of guardianship and finding that the ward is no longer incompetent, shall adjudge the competency of the ward and the guardianship shall cease. [grounds for termination of guardianship. adjudgment of competency. R97.1] Facts: -PETRONA CRISOSTOMO was under guardianship f JESUS CRISOSTOMO, appointed in 1933 -when she was already released from the NATIONAL PSYCHOPATIC HOSPITAL, JESUS filed a VERIFIED PETITION TO TERMINATE THE GUARDIANSHIP, CANCEL THE BOND FILED BY THE GUARDIAN …allegedly, PETRONA

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  

recovered her mental faculties Can take care of her person Can administer her property

…evidences



Verified statement of incompetent under oath: she was in good health, she had recovered her mental faculties and was already able to take care of herself and administer her property - this was stamped with her thumbmark and made under oath before the notary public  2 medical certificates issued by the doctors of Petrona TC: approved the motion in Feb 29, 1936 -9 months passed. RAMON CRISOSTOMO filed a MOTION TO ANNUL ORDER TERMINATING THE GUARDIANSHIP PROCEEDINGS:  Order null and void because it was entered w/o notice to the nearest relatives of the incompetent + w/o hearing  PETRONA has not yet recovered her mentality >>>OBJECTION: order sough to be annulled already became final and executory TC: annulled order terminating the guardianship proceedings -appealed to CA CA: denied WON NOTICE WAS REQUIRED TO BE GIVEN TO THE BROTHER OF THE WARD, AND LACK OF IT WOULD NULLIFY THE ORDER TERMINATING THE GUARDIANSHIP PROCEEDING? NO. 1. the judge who took cognizance of and granted the petition to restore capacity had full jurisdiction -The procedure followed by virtue of a petition for restoration of competency is neither new nor independent; it is a continuation of the original guardianship proceedings 2.Not required that notice of the hearing be given to any other person except the guardian and the incompetent. -what is needed in order that a court taking cognizance of the guardianship of an incompetent may issue a valid order restoring him to capacity: (1) that a verified petition be presented by the incompetent, his guardian, or any relative of such person within the third degree, or any friend of his; (2) that said petition should allege that the incompetent has recovered his mental faculties or his legal capacity, as the case may be; and (3) that upon receiving the petition the court should set the same for hearing and notify the guardian and the incompetent thereof. At the hearing, the guardian, the relatives of the incompetent, and, in the discretion of the court, any other person may oppose the remedy sought. 3.Here, there's substantial compliance: the verified petition was signed by the guardian himself and was supported and accompanied by the sworn statement of the incompetent. In the petition it was stated that the incompetent had recovered her mental faculties and this allegation was corroborated by her in her sworn statement when she stated that she had already recovered her mental faculties. 4.The brother, RAMON CRISOSTOMO, could have appeared at the hearing and opposed the petition but this right given to him by law IS NOT ABSOLUTE THAT HE IS ENTITLED TO PERSONAL NOTICE. His situation is like that of a person who, not being a defendant in an ordinary action and not having been notified of the complaint, learns of the existence of the suit and discovers that he has a direct interest in the subject matter of the litigation; there is no question that he would be entitled to take part therein as intervener, but he cannot successfully ask for the annulment of the judgment to be

rendered on the ground that he had a right to be cited or notified and to be present at the trial because it happened that he had an interest in the case. 5. Then order sought to be nullified already became final and executory. The guardianship case was no longer before the court because the accounts of the guardian had been definitely approved, his bond had been cancelled, he had been relieved of his charge, and the incompetent had recovered her capacity before the law. 6.RAMON could have appealed the order before it became final and executory but didn't. Cannot now file appeal for certiorari because it may be successfully invoked both in cases wherein an appeal does not lie and in those wherein the right to appeal having been lost with or without the appellant's negligence IN RE GUARDIANSHIP OF INCOMPETENT JOSE DE INCHAUSTI Summary: Mother petitioned to be the guardian of her son who was allegedly demented. Friend of son instituted proceedings to terminate the guardianship and notice was given to the son who was in Spain through cablegram. TC terminated the guardianship so mother appealed. Court held that notice needed need not be personal, as the court already had jurisdiction over the person of the ward. Also, if the fear of the termination of the guardianship proceeding is that the ward may be a spendthrift, then they could institute another separate proceedings to reduce his spendings. *the notice of hearing upon the ward and the guardian as required by Section 1, Rule 97, is not intended as a personal service process in the sense necessary to give the court jurisdiction over the ward. It is therefore, of no moment that the person to be notified is living in a foreign country and thus beyond the territorial jurisdiction of the Philippine courts. Nor is the manner in which the court procured services of the notice of any importance. It is sufficient that the notice was given. The court in which guardianship was pending already had jurisdiction of the cause and the parties; and notification to the ward – a friend – is required merely as an assurance that the individual chiefly concerned shall have cognizance of what is being done. It at least, gives him an opportunity to advise the court in case action taken by the mover of the petition was officious or unauthorized. [notice of hearing of petition. R97.1] Facts: -JOSE de INCHAUSTI allegedly became demented and incapable of properly caring for himself and his estate (he inherited lots of money from his father) so his mother, MARIA CONSUELO RICO, VDA. DE INCHAUSTI, filed an application to be appointed as his guardian -granted -JOSE was brought to Barcelona, Spain upon advice of physicians -a few months later, JOSE's friend, MANUEL SOLER, filed a petition in the guardianship proceedings to REHABILITATE AND BRING THE GUARDIANSHIP TO AN END >>>Opposition of MARIA CONSUELO: (1) that the ward had not been given sufficient notice of the hearing and How notice given: the clerk, by order of the court, sent a cablegram to the United States Consult at Barcelona, requesting him to notify Jose R. de Inchausti that the petition for his restoration to capacity would be heard in the Court of First Instance of Manila on October 19, 1918. In reply to this, a cablegram was received from Barcelona on October 14, 1918, signed by the Consul General of the United States in that city, advising that Inchausti had been duly notified according to instructions. (2) that it had not been satisfactorily shown that he is now capable of taking care of himself and property. TC: JOSE is of sound mind, so terminate guardianship. Guardian should render her account w/n 30d from date upon which order should become final. MARIA CONSUELO appealed

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WON NOTICE TO JOSE DE INCHAUSTI WAS SUFFICIENTLY GIVEN? YES -The notification of the ward required is not intended as a personal service of process in the sense necessary to give the court jurisdiction over the ward. It is, therefore, of no moment that the person to be notified was living in a foreign country and thus beyond the territorial jurisdiction of the Manila court. Nor is the manner in which the court procured service of the notice of any importance. It is sufficient that the notice was given. The court in which the guardianship was pending already had jurisdiction of the cause and the parties; and notification to the ward — where the petition to rehabilitate him is presented by a friend — is required merely as an assurance that the individual chiefly concerned shall have cognizance of what is being done. It at least gives him an opportunity to advise the court in case action taken by the mover of the petition was officious or unauthorized. -SUFFICIENT NOTIFICATION: the messages were sent and received by cable, as above stated, affords sufficient evidence, in the absence of anything to the contrary, that notification was duly effected, as reported in the return of the Consul General. WON TERMINATION OF GUARDIANSHIP COULD BE PROPERLY OPPOSED BASED ON THE FEAR THAT THE WARD IS A SPENDTHRIFT? NO. -Present mental capacity being proved, he is entitled to be discharged from tutelage. -if he is, or should hereafter prove to be, a spendthrift, proper proceedings can be instituted to protect him from wasteful proclivities. ASSIGNMENT NO. 10: T RUSTEE S RULE 98: TRUSTEES SECTION 1. Where trustee appointed.—A trustee necessary to carry into effect the provisions of a will or written instrument shall be appointed by the Regional Trial Court in which the will was allowed, if it be a will allowed in the Philippines, otherwise by the Regional Trial Court of the province in which the property, or some portion thereof, affected by the trust is situated. SEC. 2. Appointment and powers of trustee under will. Executor of former trustee need not administer trust.—If a testator has omitted in his will to appoint a trustee in the Philippines, and if such appointment is necessary to carry into effect the provisions of the will, the proper Regional Trial Court may, after notice to all persons interested, appoint a trustee who shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. No person succeeding to a trust as executor or administrator of a former trustee shall be required to accept such trust. SEC. 3. Appointment and powers of new trustee under written instrument.—When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy, the proper Regional Trial Court may, after due notice to all persons interested, appoint a new trustee to act alone or jointly with the others, as the case may be. Such new trustee shall have and exercise the same powers, rights, and duties as if he had been originally appointed, and the trust estate shall vest in him in like manner as it had vested or would have vested, in the trustee in whose place he is substituted; and the court may order such conveyance to be made by the former trustee or his representatives, or by the other remaining trustees, as may be necessary or proper to vest the trust estate in the new trustee, either alone or jointly with the others. SEC. 4. Proceedings where trustee- appointed abroad.— When land in the Philippines is held in trust for persons resident here by a trustee who derives his authority from without the Philippines, such trustee shall, on petition filed in the Regional Trial Court of the province where the land is situated, and after due notice to all persons interested, be ordered to apply to the court for appointment as trustee; and upon his neglect or refusal to comply with such order, the court shall declare such trust vacant, and shall appoint a new trustee in whom the trust estate shall vest in like manner as if he had been originally appointed by such court.

SEC. 5. Trustee must file bond.—Before entering on the duties of his trust, a trustee shall file with the clerk of the court having jurisdiction of the trust a bond in the amount fixed by the judge of said court, payable to the Government of the Philippines and sufficient and available for the protection of any party in interest, and a trustee who neglects to file such bond shall be considered to have declined or resigned the trust; but the court may, until further order exempt a trustee under a will from giving a bond when the testator has directed or requested such exemption, and may so exempt any trustee when all persons beneficially interested in the trust, being of full age, request the exemption. Such exemption may be cancelled by the court at any time, and the trustee required to forthwith file a bond. SEC. 6. Conditions included in bond.—The following conditions shall be deemed to be a part of the bond whether written therein or not: (a) That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge; (b) That 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 appointed; (c) That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by the court, a true account of the property in his hands and of the management and disposition thereof, and will render such other accounts as the court may order; (d) That at the expiration of his trust he will settle his 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. But when the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory, if one has already been filed, and in such case the condition of the bond shall be deemed to be altered accordingly. SEC. 7. Appraisal. Compensation of trustee.—When an inventory is required to be returned by a trustee, the estate and effects belonging to the trust shall be appraised and the court may order one or more inheritance tax appraisers to assist in the appraisement. The compensation of the trustee shall be fixed by the court, if it be not determined in the instrument creating the trust. SEC. 8. Removal or resignation of trustee.—The proper Regional Trial Court may, upon petition of the parties beneficially interested and after due notice to the trustee and hearing, remove a trustee if such removal appears essential in the interests of the petitioners. The court may also, after due notice to all persons interested, remove a trustee who is insane or otherwise incapable of discharging his trust or evidently unsuitable therefor. A trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court proper to allow such resignation. SEC. 9. Proceedings for sale or encumbrance of trust estate.—When the sale or encumbrance of any real or personal estate held in trust is necessary or expedient, the court having jurisdiction of the trust may, on petition and after due notice and hearing, order such sale or encumbrance to be made, and the reinvestment and application of the proceeds thereof in such manner as will best effect the objects of the trust. The petition, notice, hearing, order of sale or encumbrance, and record of proceedings, shall conform as nearly as may be to the provisions concerning the sale or encumbrance by guardians of the property of minors or other wards. LORENZO VS. POSADAS (1937) Summary: CIR sues the second trustee for inheritance tax and interests which the latter paid under protest, and is now claiming it for refund. Court held that the estate is liable for inheritance tax at the time the estate is transferred to the trustee. Although the will does not name a trustee, the probate court exercises sound judgment in appointing a trustee to carry into effect the provisions of the will where a trust is actually created by the will by

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provision that certain of the property shall be kept together undisposed during a fixed period and for a stated purpose. DE LEON VS. MOLO-PECKSON (1962) Summary: The foster children on whom the properties in question were donated were being sued by the person alleged to be beneficiaries of a trust constituted by the foster parents in their favor. The Court held that there was a trust, and that the beneficiaries do not have to accept such trust to be binding. However, the revocation of that trust needs the consent of the beneficiaries. The fact that the beneficiaries were not notified of the existence of the trust or that the latter have not been given an opportunity to accept it is of no importance for it is not essential to the existence of a valid trust and to the right of the beneficiaries to enforce the same that they had knowledge thereof at the time of its creation. Neither is it necessary that the beneficiary should consent to the creation of the trust. In fact, in case of voluntary trust, the assent of the beneficiary is not necessary to render it valid because the general rule acceptance by the beneficiary is presumed. VI. ADOPTION AND CUS TODY OF MINORS: RU LE 99-100: ADOPTION (N OTE HOWEVER THAT THIS HAS BEEN E XPRESSLY REPEALED) SECTION 1. Venue.— A person desiring to adopt another or have the custody of a minor shall present his petition to the Regional Trial Court of the province, or the city or municipal court of the city or municipality in which he resides. In the City of Manila, the proceedings shall be instituted in the Juvenile and Domestic Relations Court. SEC. 2. Contents of petition.—The petition for adoption shall contain the same allegations required in a petition for guardianship, to wit: (a) The jurisdictional facts; (b) The qualifications of the adopter; (c) That the adopter is not disqualified by law; (d) The name, age, and residence of the person to be adopted and of his relatives or of the persons who have him under their care; (e) The probable value and character of the estate of the person to be adopted. SEC. 3. Consent to adoption.—There shall be filed with the petition a written consent to the adoption signed by the child, if fourteen years of age or over and not incompetent, and by the child's spouse, if any, and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned such child, or if there are no such parents by the general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan asylum, children's home, or benevolent society or person, by the proper officer or officers of such asylum, home, or society, or by such person; but if the child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be required. If the person to be adopted is of age, only his or her consent and that of the spouse, if any, shall be required. SEC. 4. Order for hearing.—If the petition and consent filed are sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, which date shall not be more than six (6) months after the entry of the order, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. SEC. 5. Hearing and judgment.—Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed, that the allegations of the petition are true, and that it is a proper case for adoption and the petitioner or petitioners are able to bring up and educate the child properly, the court shall adjudge that thenceforth the child is freed from all legal obligations of obedience and maintenance with respect to its natural parents, except the mother when the child is adopted by her husband, and is, to all legal intents and purposes, the child of the petitioner or

petitioners, and that its surname is changed to that of the petitioner or petitioners. The adopted person or child shall thereupon become the legal heir of his parents by adoption and shall also remain the legal heir of his natural parents. In case of the death of the adopted person or child, his parents and relatives by nature, and not by adoption, shall be his legal heirs. SEC. 6. Proceedings as to child whose parents are separated. Appeal.—When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody, and control of a child or children of their marriage is brought before a Regional Trial Court by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody, and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with it be over ten years of age, unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. If, upon such hearing, it appears that both parents are improper persons to have the care, custody, and control of the child, the court may either designate the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum, children's home, or benevolent society. The court may in conformity with the provisions of the Civil Code order either or both parents to support or help support said child, irrespective of who may be its custodian, and may make any order that is just and reasonable permitting the parent who is deprived of its care and custody to visit the child or have temporary custody thereof. Either parent may appeal from an order made in accordance with the provisions of this section. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor. SEC. 7. Proceedings as to vagrant or abused child.—When the parents of any minor child are dead, or by reason of long absence or legal or physical disability have abandoned it, or cannot support it through vagrancy, negligence, or misconduct, or neglect or refuse to support it, or treat it with excessive harshness or give it corrupting orders, counsels, or examples, or cause or allow it to engage in begging, or to Commit offenses against the law, the proper Regional Trial Court, upon petition filed by some reputable resident of the province setting forth the facts, may issue an order requiring such parents for show cause, or, if the parents are dead or cannot be found, requiring the fiscal of the province to show cause, at a time and place fixed in the order, why the child should not be taken from its parents, if living; and if upon the hearing it appears that the allegations of the petition are true, and that it is for the best interest of the child, the court may make an order taking it from its parents, if living; and committing it to any suitable orphan asylum, children's home, or benevolent society or person to be ultimately placed, by adoption or otherwise, in a home found for it by such asylum, children's home, society, or person. SEC. 8. Service of judgment.—Final orders or judgments under this rule shall be served by the clerk upon the civil registrar of the city or municipality wherein the court issuing the same is situated. RULE 100: RESCISSION AND REVOCATION OF ADOPTION SECTION 1. Who may file petition; grounds.—A minor or other incapacitated person may, through a guardian or guardian ad litem, petition for the rescission or revocation of his or her adoption for the same causes that authorize the deprivation of parental authority. The adopter may, likewise petition the court for the rescission or revocation of the adoption in any of these cases: (a) If the adopted person has attempted against the life of the adopter; (b) When the adopted minor has abandoned the home of the adopter for more than three (3) years; (c) When by other acts the adopted person has repudiated the adoption. SEC. 2. Order to answer.—The court in which the petition is filed shall issue and order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof. The order and a copy of the petition shall be served on the adverse party in such manner as the court may direct.

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SEC. 3. Judgment.—If upon trial, on the day set therefor, the court finds that the allegations of the petition are true, it shall render judgment ordering the rescission or revocation of the adoption, with or without costs, as justice requires. SEC. 4. Service of judgment.—A certified copy of the judg ment rendered in accordance with the next preceding section shall be served upon the civil registrar concerned; within thirty (30) days from rendition thereof, who shall forthwith enter the action taken by the court in the register. SEC. 5. Time within which to file petition.—A minor or other incapacitated person must file the petition for rescission or revocation of adoption within the five (5) years following his majority, or if he was incompetent at the time of the adoption, within the five (5) years following the recovery from such incompetency. The adopter must also file the petition to set aside the adoption within five (5) years from the time the cause or causes giving rise to the rescission or revocation of the same took place. VII.RULE 101: PROCEE DINGS F OR HOSPITALIZ ATION OF INSA NE PERS ONS SECTION 1. Venue. Petition for commitment.—A petition for the commitment of a person to a hospital or other place for the insane may be filed with the Regional Trial Court of the province where the person alleged to be insane is found. The petition shall be filed by the Director of Health in all cases where, in his opinion, such commitment is for the public welfare, or for the welfare of said person who, in his judgment, is insane, and such person or the one having charge of him is opposed to his being taken to a hospital or other place for the insane. SEC. 2. Order for hearing.—If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date for the hearing thereof, and copy of such order shall be served on the person alleged to be insane, and to the one having charge of him, or on such of his relatives residing in the province or city as the judge may deem proper. The court shall furthermore order the sheriff to produce the alleged insane person, if possible, on the date of the hearing. SEC. 3. Hearing and judgment.—Upon satisfactory proof, in open court on the date fixed in the order, that the commitment applied for is for the public welfare or for the welfare of the insane person, and that his relatives are unable for any reason to take proper custody and care of him, the court shall order his commitment to such hospital or other place for the insane as may be recommended by the Director of Health. The court shall make proper provisions for the custody of property or money belonging to the insane until a guardian be properly appointed. SEC. 4. Discharge of insane.—When, in the opinion of the Director of Health, the person ordered to be committed to a hospital or other place for the insane is temporarily or permanently cured, or may be released without danger he may file the proper petition with the Regional Trial Court which ordered the commit ment. SEC. 5. Assistance of fiscal in the proceeding.—It shall be the duty of the provincial fiscal or in the City of Manila the fiscal of the city, to prepare the petition for the Director of Health and represent him in court in all proceedings arising under the provisions of this rule.

CHIN AH FOO V. CONCEPCION (1930) Summary: Chinese convicted of murder was absolved because of plea to insanity, was confined to a mental institution. His wife and children petitioned that he be released from such mental institution and be sent to HK where he lives instead. Court granted it without the director of health’s recommendation. Court held that both director of health’s recommendation and the court’s decision are needed to grant the release of a hospitalized insane person. Where the insane person was judicially committed to the hospital or asylum, the Director of Health cannot order his release without the approval of the RTC which ordered the commitment. Also said court cannot order his release without the recommendation of the Director of Health.

VII. HABEAS CORPUS – RU LE 10 2, SECTION 1 -19 SECTION 1. To what habeas corpus extends.—Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. SEC. 2. Who may grant the writ.—The writ of habeas corpus may be granted by the Supreme Court, or any member thereof, on any day and at any time, or by the Court of Appeals or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines; and may be made returnable before the court or any member thereof, or before a Regional Trial Court, or any judge thereof for hearing and decision on the merits. It may also be granted by a Regional Trial Court, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district. SEC. 3. Requisites of application therefor.—Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth: (a) That the person in whose behalf the application is made is imprisoned or restrained of his liberty; (b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (c) The place where he is so imprisoned or restrained, if known; (d) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear. SEC. 4. When writ not allowed or discharge authorized.—If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. SEC. 5. When the writ must be granted and issued.—A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it. SEC. 6. To whom writ directed, and what to require.—In case of imprisonment or restraint by an officer, the writ shall be directed to him, and shall command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to an officer, and shall command him to take and have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint. SEC. 7. How prisoner designated and writ served.—The person to be produced should be designated in the writ by his name, if known, but if his name is not known he may be otherwise described or identified. The writ may be served in any province by the sheriff or other proper officer, or by a person deputed by the court or judge. Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service. If that person cannot be found, or

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has not the prisoner in his custody, then the service shall be made on any other person having or exercising such custody. SEC. 8. How writ executed and returned.—The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or, in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be brought before the court or judge; and the officer shall make due return of the writ, together with the day and the cause of the caption and restraint of such person according to the command thereof. SEC. 9. Defect of form.—No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in whose custody or under whose restraint the party imprisoned or restrained is held and the court or judge before whom he is to be brought. SEC. 10 Contents of return.—When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably: (a) Whether he has or has not the party in his custody or power, or under restraint; (b) If he has the party in his- custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held; (c) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; (d) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. SEC. 11. Return to be signed and sworn to.—The return or statement shall be signed by the person who makes it; and shall also be sworn to by him if the prisoner is not produced, and in all other cases unless the return is made and signed by a sworn public officer in his official capacity. SEC. 12. Hearing on return. Adjournments.—When the writ is returned before one judge, at a time when the court is in session, he may forthwith adjourn the case into the court, there to be heard and determined. The court or judge before whom the writ is returned or adjourned must immediately proceed to hear and examine the return, and such other matters as are properly submitted for consideration, unless for good cause shown the hearing is adjourned, in which event the court or judge shall make such order for the safekeeping of the person imprisoned or restrained as the nature of the case requires. If the person imprisoned or restrained is not produced because of his alleged sickness or infirmity, the court or judge must be satisfied that it is so grave that such person cannot be produced without danger, before proceeding to hear and dispose of the matter. On the hearing the court or judge shall disregard matters of form and technicalities in respect to any warrant or order of commitment of a court or officer authorized to commit by law. SEC. 13. When the return evidence, and when only a plea.— If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint; but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts. SEC. 14. When person lawfully imprisoned recommitted, and when let to bail.—If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge. If he be

admitted to bail, he shall forthwith file a bond in such sum as the court or judge deems reasonable, considering the circumstances of the prisoner and the nature of the offense charged, conditioned for his appearance before the court where the offense is properly cognizable to abide its order or judgment; and the court or judge shall certify the proceedings, together with the bond, forthwith to the proper court. If such bond is not so filed, the prisoner shall be recommitted to confinement. SEC. 15. When prisoner discharged if no appeal.—When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confine ment, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released. SEC. 16. Penalty for refusing to issue writ, or for disobeying the same.—A clerk of a court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, and may also be punished by the court or judge as for contempt. SEC. 17. Person discharged not to be again imprisoned.—A person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful order or process of a court having jurisdiction of the cause or offense; and a person who knowingly, contrary to the provisions of this rule, recommits or imprisons, or causes to be committed or imprisoned, for the same offense, or pretended offense, any person so set at liberty, or knowingly aids or assists therein, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, notwithstanding any colorable pretense or variation in the warrant of commitment, and may also be punished by the court or judge granting the writ as for contempt. SEC. 18. When prisoner may be removed from one custody to another.—A person committed to prison, or in custody of an officer, for any criminal matter, shall not be removed therefrom into the custody of another officer unless by legal process, or the prisoner be delivered to an inferior officer to carry to jail or by order of the proper court or judge, be removed from one place to another within the Philippines for trial, or in case of fire, epidemic, insurrection, or other necessity or public calamity; and a person who, after such commitment, makes, signs, or countersigns any order for such removal contrary to this section, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action. SEC. 19. Record of writ, fees and costs.—The proceedings upon a writ of habeas corpus shall be recorded by the clerk of the court, and upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires. The fees of officers and witnesses shall be included in the costs taxed, but no officer or person shall have the right to demand payment in advance of any fees to which he is entitled by virtue of the proceedings. When a person confined under color of proceedings in a criminal case is discharged, the costs shall be taxed against the Republic of the Philippines, and paid out of its Treasury; when a person in custody by virtue or under color of proceedings in a civil case is discharged, the costs shall be taxed against him, or against the person who signed the application for the writ, or both, as the court shall direct. WRIT OF AMPARO A.M. No. 07-9-12-SC (25 September 2007) THE RULE ON THE WRIT OF AMPARO

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SECTION 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. SEC. 2. Who May File. – The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: a. Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; b. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or c. Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein. SEC. 3. Where to File. – The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines. When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge. When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. SEC. 4. No Docket Fees. – The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately. SEC. 5. Contents of Petition. – The petition shall be signed and verified and shall allege the following: a. The personal circumstances of the petitioner; b. The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation; c. The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; d. The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; e. The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and f. The relief prayed for. The petition may include a general prayer for other just and equitable reliefs. SEC. 6. Issuance of the Writ. – Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it.

The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance. SEC. 7. Penalty for Refusing to Issue or Serve the Writ. – A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. SEC. 8. How the Writ is Served. – The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. Sec. 9. Return; Contents. - Within FIVE (5) WORKING DAYS after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: (a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; (b) The steps or actions taken by the possession to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; (c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and (d) If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: (i) to verify the identity of the aggrieved party; (ii) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; (iii) to identify witnesses and obtain statements from them concerning the death or disappearance; (iv) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; (v) to identify and apprehend the person or persons involved in the death or disappearance; and (vi) to bring the suspected offenders before a competent court. THE PERIOD TO FILE A RETURN CANNOT BE EXTENDED EXCEPT ON HIGHLY MERITORIOUS GROUND. The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be allowed: SEC. 10. Defenses not Pleaded Deemed Waived. — All defenses shall be raised in the return, otherwise, they shall be deemed waived. Sec. 11. Prohibited Pleadings and Motions.- The following pleadings and motion are prohibited: (a) Motion to dismiss; (b) Motion for extension of time to file opposition, affidavit, position paper and other pleadings; (c) Dilatory motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; (h) Motion to declare respondent in default; (i) Intervention; (j) Memorandum; 79 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

(k) Motion for reconsideration of interlocutory orders or interim relief orders; and (l) Petition for certiorari, mandamus or prohibition against any interlocutory order. SEC. 12. Effect of Failure to File Return. — In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte. SEC. 13. Summary Hearing. — The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. SEC. 14. Interim Reliefs. — Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs: (a) Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. (b) Inspection Order. — The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons. (c) Production Order. – The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (d) Witness Protection Order. – The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.

The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. SEC. 15. Availability of Interim Reliefs to Respondent. – Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section. A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent. SEC. 16. Contempt. – The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine. SEC. 17. Burden of Proof and Standard of Diligence Required. – The parties shall establish their claims by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. SEC. 18. Judgment. — The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. SEC. 19. Appeal. – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the same priority as in habeas corpus cases. SEC. 20. Archiving and Revival of Cases. – The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives. A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case. The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule not later than the first week of January of every year. SEC. 21. Institution of Separate Actions. — This Rule shall not preclude the filing of separate criminal, civil or administrative actions. SEC. 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. SEC. 23. Consolidation. – When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition. SEC. 24. Substantive Rights. — This Rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution. 80 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

SEC. 25. Suppletory Application of the Rules of Court. – The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. SEC. 26. Applicability to Pending Cases. – This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts. SEC. 27. Effectivity. – This Rule shall take effect on October 24, 2007, following its publication in three (3) newspapers of general circulation. WRIT OF HABEAS DATA THE RULE ON THE WRIT OF HABEAS DATA SECTION 1. Habeas Data. - The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. SEC. 2. Who May File. - Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or SEC. 3. Where to File. - The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices. SEC. 4. Where Returnable; Enforceable. - When the writ is issued by a Regional Trial Court or any judge thereof, it shall be returnable before such court or judge. When issued by the Court of Appeals or the Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its justices, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. The writ of habeas data shall be enforceable anywhere in the Philippines. Sec. 5. Docket Fees. - No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docked and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition. SEC. 6. Petition. - A verified written petition for a writ of habeas data should contain: (a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable.

SEC. 7. Issuance of the Writ. - Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from the issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance. SEC. 8. Penalty for Refusing to Issue or Serve the Writ. - A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. SEC. 9. How the Writ is Served. - The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. SEC. 10. Return; Contents. - The respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following: (a) The lawful defenses such as national security, state secrets, privileged communications, confidentiality of the source of information of media and others; (b) In case of respondent in charge, in possession or in control of the data or information subject of the petition; (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and, (iii) the currency and accuracy of the data or information held; and, (c) Other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petition shall not be allowed. SEC. 11. Contempt. - The court, justice or judge may punish with imprisonment or fine a respondent who commits contempt by making a false return, or refusing to make a return; or any person who otherwise disobeys or resist a lawful process or order of the court. SEC. 12. When Defenses May be Heard in Chambers. - A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. Sec. 13. Prohibited Pleadings and Motions. - The following pleadings and motions are prohibited: (a) Motion to dismiss; (b) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; (c) Dilatory motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; (h) Motion to declare respondent in default; (i) Intervention; (j) Memorandum; (k) Motion for reconsideration of interlocutory orders or interim relief orders; and (l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

SEC. 14. Return; Filing. - In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence. SEC. 15. Summary Hearing. - The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. SEC. 16. Judgment. - The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. Upon its finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within five (5) working days. SEC. 17. Return of Service. - The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent. The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ. SEC. 18. Hearing on Officer’s Return. - The court shall set the return for hearing with due notice to the parties and act accordingly. SEC. 19. Appeal. - Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the judgment or final order. The appeal shall be given the same priority as in habeas corpus and amparo cases. SEC. 20. Institution of Separate Actions. - The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. SEC. 21. Consolidation. - When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition. SEC. 22. Effect of Filing of a Criminal Action. - When a criminal action has been commenced, no separate petition for the writ shall be filed. The relief under the writ shall be available to an aggrieved party by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. SEC. 23. Substantive Rights. - This Rule shall not diminish, increase or modify substantive rights. SEC. 24. Suppletory Application of the Rules of Court. - The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. SEC. 25. Effectivity. - This Rule shall take effect on February 2, 2008, following its publication in three (3) newspapers of general circulation. [PUBLISHED IN THE MANILA BULLETIN, THE PHILIPPINE STAR AND THE PHILIPPINE DAILY INQUIRER ON 25 JANUARY 2008] REPUBLIC VS. CA, SUPRA (this case does not belong here)

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MARTINEZ V. MENDOZA (2006) Summary: A participant in the Nida Blanca murder case was allegedly abducted and was last seen by Philip Medel at the CIDG in Camp Crama. As the alleged mastermind Martinez has been missing, his family filed a petition for writ of habeas corpus against CIDG and PNP officers. Court held that for the petition to be granted, the petitioner must establish by competent and convincing evidence that the missing person, on whose behalf the Petition was filed, is under the custody of the respondents. As the petitioners here merely relied on the statements of Philip Medel, who the court found doubtful, the Court denied the petition. When respondents deny custody of an allegedly detained person, petitioners have the duty of establishing the fact of detention by competent and convincing evidence; otherwise, the writ of habeas corpus cannot be issued. Nonetheless, when the disappearance of a person is indubitable, the law enforcement authorities are duty-bound to investigate it with due diligence and to locate the missing person. When the wrongdoing is attributable to the police agencies and/or their agents, the aggrieved may secure the assistance of the People’s Law Enforcement Board or the Commission on Human Rights. Facts: -MICHAEL MARTINEZ, a resident of Sun Valley, Paranaque, was reported to be abducted while on his way to his mother’s house nearby. The said abductin was reported to the authorities -in the evening when MARTINEZ was abducted, the CIDG presented before the media PHILIP MEDEL, JR. who allegedly named MARTINEZ as the person who introduced him to ROD LAUREN STRUNK, the husband of Nida Blanca who was also the alleged mastermind in her killng. PHILIP MEDEL narrated that he say MARTINEZ at the CIDG at Camp Crame. -PHILIP MEDEL reiterated that he saw MARTINEZ to the brother of MARTINEZ, even describing the clothes MARTINEZ was wearing when he was abducted. -the Martinez family prayed for the release of MARTINEZ, or that they be allowed to see him, but CIDG did not grant their request -so Martinez family filed a petition for habeas corpus vs PNP and CIDG officials to produce MARTINEZ or to justify the continued detention of his liberty. -RTC set petition for hearing, directed respondents to show cause why writ should not issue -RETURN: * denied any participation or involvement in the alleged abduction or disappearance of Martinez * Martinez was never confined or detained by them or in their custody -HEARING: same stand of respondents. Petitioners presented Philip Medel: said that he even saw ESPINA (one of the defendants) boxed Martinez in the stomach RTC: granted the petition CA: reversed RTC 1. Medel’s credibility was highly suspect: contradicted himself as to material facts 2. Espina’s positive testimony that he was at home at the time when he allegedly boxed Martinez was never controverted. 3. Presumption of regularity in the performance of their official duties. 4. CIDG was equally concerned with the safety of MARTINEZ who is a vital witness to the case. WON THE DENIAL OF THE PETITION WAS PROPER? YES petitioner must establish by competent and convincing evidence that the missing person, on whose behalf the Petition was filed, is under the custody of respondents. HERE: evidence insufficient to convince Court that the respondents have MARTINEZ in their custody 1. PROPRIETY OF HABEAS CORPUS

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- can’t use habeas corpus in case of disappearances: the grant of relief in a habeas corpus proceeding is not predicated on the disappearance of a person, but on his illegal detention. Habeas corpus generally applies to "all cases of illegal confinement or detention by which any person is deprived of his liberty or by which the rightful custody of any person is withheld from the person entitled thereto." -objective of habeas corpus: * relieve a person from unlawful restraint. It is devised as a speedy relief from unlawful restraint. * to determine whether the person under detention is held under lawful authority/inquire into the cause of detention of a person: determine whether a person is being illegally deprived of his liberty. >if illegal detention: release person >if lawful detention: HC proceedings terminate. 2. FORCIBLE TAKING AND DISAPPEARANCE When forcible taking and disappearance -- not arrest and detention -- have been alleged, the proper remedy is not habeas corpus proceedings, but criminal investigation and proceedings. -even if the agency tasked with investigating crimes are suspected of being responsible for the disappearance of a person who is the subject of HC proceedings, it will not convert the courts into -- or authorize them through habeas corpus proceedings to be -- forefront investigators, prosecutors, judges and executioners all at the same time. - proceeding for habeas corpus cannot be used as a substitute for a thorough criminal investigation. - people may refer their complaints to the PLEB (People’s Law Enforcement Board, tasked to investigate abuses of PNP), which should be part of their arsenal in the battle to resolve cases in which members of the PNP are suspected of having caused the disappearance of anyone. IN THE MATTER OF PETITION FOR HABEAS CORPUS, ASHRAF KUNTING (2006) Summary: Kunting, an alleged Abu Sayyaf Group member involved in the kidnappings in Mindanao was detained by the PNP Intelligence group but the TC in Basilan where he was charged with Kidnapping for Ransom and Serious Illegal Detention ordered that he be turned over to the said TC as Kunting filed an Urgent Motion for Reinvestigation with them. The said orders were not heeded by PNP-IG, alleging that there was a pending motion for a change of venue filed as it was alleged that there would be efforts by the ASG to recover custody of Kunting if he be brought to Basilan and that this plan may succeed, due to the inadequate security facility in the municipal jail and its proximity to the area of operation of the ASG. Thus, Kunting filed petition for HC. Court initially said that Kunting should not be turned over, he being legally detained. However, as there were insufficient evidence to prove that there was a pending motion for transfer of venue, the court granted the transfer. "once the person detained is duly charged in court, he may no longer question his detention by a petition for the issuance of a writ of habeas corpus." Facts -Ashraf KUNTING was charged in RTC Basilan with 4 counts of Kidnapping for Ransom and Serious Illegal Detention. Warrants of arrest were issued by RTC Basilan -he was arrested in Malaysia for violation of Malaysian Internal Security Act, was turned over to the PNPIG and Task Force Salinglahi, flown to RP and brought to Camp Crame for booking and custodial investigation -PNP-IG requested RTC Basilan that KUNTING be temporarily detained with them due to high security risks involved and prayed for corresponding commitment order -RTC instead ordered that he be turned over to them due to the URGENT MOTION FOR REINVESTIGATION filed by KUNTING -PNP-IG wrote to Chief State Prosecutor Zuño to represent them and to file a motion for transfer of venue on the possibility that if KUNTING would be transferred to Basilan, ASG would recover his custody

-RTC denied KUNTING’s motion for reinvestigation since PNP-IG has not turned over KUNTING, and reiterated their order to turn over KUNTING -with their letter to Chief Prosecutor Zuño still unheeded, PNP OIC of Legal Affairs Division filed a Motion to defer the implementation of the Order pending the motion for the transfer of the venue. -KUNTING filed Petition for HC w/SC:  Restrained of his liberty  Never informed of the charges filed against him until he requested his family to research in Zamboanga that his name appeared in the list of accused in the Lamitan kidnapping incident  He never participated in the said kidnapping incident – led him to file URGENT MOTION FOR REINVESTIGATION  His detention was classified in the records as “for safekeeping purposes only” WON the Petition should be granted? NO but… - The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person >if illegal: release detainee >if legal: HC proceedings terminate -WRIT is NOT ALLOWED – Section 4

Nature, scope, function

Limitations Who may file

Where filed

Where enforceable

Where returnable

Habeas Corpus All cases of illegal confinement and detention which any person is deprived of his liberty; or rightful custody of any person is withheld from the person entitled (102.1) Actual violation before writ issues. Note Villavicencio v. Lukban on applicability of the writ in case of constructive restraint May be suspended in cases of invasion or rebellion when public safety requires it (Consti. Art. III Sec. 15) By a petition signed and verified by the party for whose relief it is intended, or by some person on his behalf (102.3)

Granted by: SC or any member thereof, on any day and at any time CA or any member thereof in instances authorized by law RTC or a judge thereof, on any day and at any time, enforceable only within his judicial district (102.2) MTC OR FIRST LEVEL COURTS in the absence of RTC judges in a judicial region (section 35 BP 129) If SC or CA issued, anywhere in the Philippines If granted by the RTC or judge thereof, it is enforceable in any part of the judicial region (Section 21, BP 129 which modified the term judicial district in Section 2, Rule 102 into judicial region) where the judge sits If the one that granted the writ: Is the SC or CA, or a member thereof, returnable before such court

1. Person is under process issued by a court or judge + the court or judge had jurisdiction to issue the process, render the judgment or make the order 2. Jurisdiction appears after writ is allowed 3. Person is charged with or convicted of an offense in RP 4. Person is suffering imprisonment under lawful judgment -HERE: * Kunting’s detention by the PNP-IG was under process issued by the RTC. * Kunting was charged with 4 counts of Kidnapping for Ransom and Serious Illegal Detention >>>so cannot be discharged since he was charged with a criminal offense -BUT wait, there’s more! -Kunting has been detained by PNP-IG for 2 years while awaiting that DOJ make a motion for transfer of venue - In the absence of evidence that the DOJ has indeed filed a motion for the transfer of venue, In its Comment, the Office of the Solicitor General stated that the PNP-IG is presently awaiting the resolution of the Motion for Transfer of Venue it requested from the DOJ. -so while pending action on the motion, detention of Kunting is transferred to Basilan…good luck naman.

Amparo Involves right to life, liberty and security violated or threatened with violation by an unlawful act or omission of a public official or employee or a private individual or entity It covers extralegal killings and enforced disappearances or threats thereof. (RWA Sec.1) Shall not diminish, increase or modify substantive rights (RWA Sec. 24) Petition filed by the aggrieved party or by any qualified person or entity in the following order: a. Any member of the immediate family b. Any ascendant, descendant or collateral relative of the aggrieved within the 4th civil degree of consanguinity or affinity c. Any concerned citizen, organization, association or institution Filing by the aggrieved or representative suspends the right of all others (RWA Sec. 2) Filed on any day and at any time: SB, CA, SC, or any justice of such courts RTC of place where the threat, act, or omission was committed or any element occurred (RWA Sec. 3)

Habeas Data Involves the right to privacy in life, liberty or security of the aggrieved party and covers extralegal killings and enforced disappearances (RWD Sec.1)

Shall not diminish, increase or modify substantive rights (RWD Sec. 23) Any aggrieved party may file a petition for the WHD However, in cases of extralegal killings and enforced disappearances, the petition may be filed by (also successive): a. Any member of the immediate family of the aggrieved b. Any ascendant, descendant or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity, (RWD Sec. 2)

Writ shall be enforceable anywhere in the Philippines (RWA Sec. 3)

Petition may be filed with RTC where the petitioner or respondent resides or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of petitioner If public data files of government offices, petition shall be filed with the SC, CA, or SB (RWD Sec. 3) Writ shall be enforceable anywhere in the Philippines (RWD Sec. 3)

If the one that granted the writ: SC or any of its justices: before such court or any justice thereof, or before the SB or CA or any of their justices, or to any RTC of

If issued by: The SC or any of its justices, before such Court or any justice thereof, or CA or SB or any of its justices, or the RTC of the place

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or any member thereof or an RTC An RTC, or a judge thereof, returnable before himself (102.2)

the place where the threat, act or omission was committed or any of its elements occurred The SB or CA or any of their justices, before such court or any justice thereof, or to any RTC of the place where the threat, act, or omission was committed or any of its elements occurred RTC, returnable before such court or judge (RWA Sec. 3)

Docket Fees

upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires (102.19)

Essential allegations/ Contents of petition

Signed and verified either by the party for whose relief it is intended or by some person on his behalf, setting forth: *The person in whose behalf whose the application is made is imprisoned or restrained of his liberty *Name of the person detaining another or assumed appellation *Place where he is imprisoned or restrained of his liberty *Cause of detention, or allegation that there’s none (102.3)

NONE absolutely. Petitioner shall be exempted from the payment of the docket and other lawful fees. Court, justice or judge shall docket the petition and act upon it immediately (RWA Sec 4) Signed and verified and shall allege: *The personal circumstances of the petitioner *Name or appellation and circumstances of the respondent *The right to life, liberty, and security violated or threatened with violation, *The investigation conducted, if any, plus circumstances of each *The actions and recourses taken by the petitioner *Relief prayed for *May include a general prayer for other just and equitable reliefs (RWA Sec. 5)

When proper

Court or judge must, when a petition is presented and it appears that it ought to issue, grant the same and then: >the clerk of court (CoC) shall issue the writ under the seal of the court; or >in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it (102.5)

How and who serves

Respondent

How executed and returned

Also proper to be issued when the court or judge has examined into the cause of restraint of the prisoner, and is satisfied that he is unlawfully imprisoned (102.5) Writ may be served in any province by the (a) sheriff, (b) other proper officer, or (c) or person deputed by the court or judge Service is made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service (personal service) If that person cannot be found, or has not the prisoner in his custody, service shall be made on any other person having or exercising such custody (substituted service)(102.7) May or may not be an officer

The officer to whom the writ is directed shall convey the person so imprisoned or restrained before: the judge allowing the writ, or, in his absence or disability, before some other judge of the same court

Upon the filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ if on its face it ought to issue >CoC shall issue the writ under the seal of the court; or >In case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, …and may deputize any officer or person to serve it

The writ shall be served upon the respondent *by a judicial officer or *by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply (so personally, but if di pede, substituted) (RWA Sec. 8) Respondent is a public official or employee or private individual or entity Respondent files the return

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where the petitioner or respondent resides / has jurisdiction over the place where the data or information is gathered, stored or collected The CA or SB or any of its justices, before such court or any justice thereof, or the RTC (same with scenario: SC issued and then returned in RTC) RTC, returnable before such court or judge (RWD Sec. 4) None for indigent petitioner Petition shall be docketed and acted upon immediately, w/o prejudice to subsequent submission of proof of indigency not later than 15 days from filing (RWD Sec. 5) Verified and written petition shall contain: *Personal circumstances of petitioner and respondent *Manner the right to privacy is violated or threatened and its effects *Actions and recourses taken by the petitioner to secure the data or information *The location of the files, registers, or databases, the government office, and the person in charge or control *The reliefs prayed for *Such other relevant reliefs as are just and equitable (RWD Sec. 6) Upon filing of the petition, the court, justice, or judge shall immediately order the issuance of the writ if on its face it ought to issue. >CoC shall issue the writ under the seal of the court and cause it to be served within 3 days from issuance; or >In case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it (RWD Sec. 7)

The writ shall be served upon the respondent *by a judicial officer or *by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply (so personally, but if di pede, substituted) (RWD Sec. 9) A public official or employee or a private individual or entity engaged in gathering, collecting or storing data Respondent files the return

on the day specified in the writ, unless person directed to be produced is sick or infirm, and cannot, without danger, be brought therein

When to file return Contents of return

Formalities of return

Penalties For refusing to issue or serve

For faulty return

Is period of return extendable? Is a general denial

officer shall then make due return of the writ, with the day and cause of the caption and restraint according to the command thereof (102.8) On the day specified on the writ When the person to be produced is imprisoned or restrained by an officer the person who makes the return shall state, and in other cases the person in whose custody the prisoner is found shall state in writing to the court or judge before whom the writ is returnable: *Truth of custody/power over the aggrieved *If has custody or power, or under restraint, the authority and the cause thereof, with a copy of the writ, order, execution or other process, if any upon which the party is held; *If the party is in his custody or power, and is not produced, particularly the nature and gravity of the sickness or infirmity *If he has had the party in his custody or power, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. (102.10)

Return or statement shall be signed and sworn to by the person who makes it if the prisoner is not produced, Unless the return is made and signed by a sworn public officer in his official capacity (102.11) CoC who refuses to issue the writ after allowance and demand, Or a person to whom a writ is directed, who: neglects/refuses to obey or make return of the same according to the command thereof, or makes false return, or upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within 6 hours a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of P1000, recoverable in a proper action, and may also be punished for contempt (102.16)

Yes. No prohibition in Rule.

Within 5 working days after service of the writ

Same with WA

Within 5 working days after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, , contain: *Lawful defenses *The steps or actions taken to determine the fate or whereabouts of the aggrieved party *All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party *If the respondent is a public official or employee, the return shall further state acts: >To verify identity of aggrieved party >To recover and preserve evidence >To identify and collect witness statements >To determine cause, manner, location, and time of death or disappearance >To identify and apprehend persons involved >Bring suspected offenders before a competent court (RWA Sec.9) … the respondent shall file a verified written return together with supporting affidavits… (RWA Sec. 9)

*Lawful defenses such as national security, state secrets, privileged communications, confidentiality of the source of information of media etc. *In case of respondent in charge, in possession or in control of the data or information subject of the petition: >A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection >The steps or actions taken by the respondent to ensure the security and confidentiality of the data or information >The currency and accuracy of the data or information held *Other allegations relevant to the resolution of the proceeding (RWD Sec.10)

CoC who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same,

COC who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same,

shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions (RWA Sec. 7)

shall be punished by the court, justice, or judge for contempt without prejudice to other disciplinary actions (RWD Sec. 8)

The court, justice, or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resist a lawful process or order of the court to be punished for contempt Contemnor may be imprisoned or imposed a fine (RWA Sec. 16) No, not even on highly meritorious grounds.

The court, justice, or judge may punish with imprisonment or fine a respondent who commits contempt by: Making a false return or Refusing to make a return; or Any person who otherwise disobeys or resists a lawful process or order of the court (RWD Sec. 11) Yes, by the court, for justifiable reasons (RWD Sec. 10)

No, by virtue if A.M. No. 07-9-12-SC

No, by virtue of RWD Sec. 10, last sentence.

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Respondent shall file a verified written return together with supporting … (RWD Sec. 10)

allowed? Defenses not pleaded Effect of failure to file return

If not raised in return deemed waived (RWA Sec 10) Court or justice shall proceed to hear the petition ex parte (RWA Sec. 12)

Nature of Hearing

Date and time of hearing Prohibited pleadings

As specified in the writ

Burden of Proof

Preponderance of evidence

Presumption of Official duty

Yes. Consonant wit 102.13, stating that if warrant of commitment is in pursuance with law, serves as prima facie cause of restraint

Judgment Appeals

Within 48 hours from notice of the judgment of final order appealed

Consolidation of actions Effect of filing criminal action *tables from UP LAW BAROPS REVIEWER

Summary. However, the court, justice, or judge may call for a preliminary conference to simplify the issues and look at possibility of obtaining stipulations and admissions from the parties. Hearing shall be from day to day until completed; same priority as petitions for WHC Not later than 7 days from the issuance of the writ

Court, judge, or justice shall hear the motion ex parte, granting the petitioner such reliefs as the petition may warrant Unless the court in its discretion requires the petitioner to submit evidence (RWD Sec. 14) Summary. With possibility of preliminary conference similar to the writ of amparo (RWD Sec. 14) Hearing on chambers may be conducted where respondent invokes the defense of national security or state secrets, or the data is of public or privileged character (RWD Sec. 12) Not later than 10 working days from the date of issuance writ

Motion to dismiss Motion for extension of time to file opposition Affidavit position paper and other pleadings Dilatory motion for postponement Motion for bill of particulars Counterclaims or cross-claims Third-party complaint Reply Motion to declare respondent in default Intervention Memorandum Motion for reconsideration of interlocutory orders or interim relief orders petition for certiorari, mandamus, or prohibition (RWA Sec.11) Establish claims by substantial evidence if respondent is a private individual or entity, ordinary diligence if public official or employee, extraordinary diligence Public official or employee cannot invoke the presumption that official duty has been regularly performed (RWA Sec. 17)

Same as writ of amparo (RWD Sec. 13)

The court shall render judgment within 10 days from the time the petition is submitted for decision (RWA Sec. 18) 5 working days from the date of notice of adverse judgment; Rule 45 filed with the SC May be consolidated with a criminal action filed subsequent to the petition (RWA Sec. 23) No more separate petition shall be filed. Reliefs available by motion in the criminal case (RWA Sec. 22)

Within 10 days from the time the petition is submitted for decision (RWD Sec. 16) 5 working days from the date of notice of adverse judgment; Rule 45 filed with the SC May be consolidated with a criminal action filed subsequent to the petition (RWD Sec. 21) Same as WA

ASSIGNMENT NO. 12 : CHANGE OF NAME – RU LE 103

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Substantial evidence required to prove the allegations in the petition (RWD Sec. 16)

Section 1. Venue. - A person desiring to change his name shall present the petition to the Court of First Instance of the province in which he resides, or, in the City of Manila, to the Juvenile and Domestic Relations Court.

Section 2. Contents of petition. - A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth: (a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing; (b) The cause for which the change of the petitioner's name is sought; (c) The name asked for. Section 3. Order for hearing. - If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) month after the last publication of the notice. Section 4. Hearing. - Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic. Section 5. Judgment. - Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition. Section 6. Service of judgment. - Judgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the court issuing the same is situated, who shall forthwith enter the same in the civil register. REPUBLIC ACT NO. 9048 March 22, 2001 AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER, AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL CODE OF THE PHILIPPINES. Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order; except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. Sec. 2. Definitions of Terms. - As used in this Act, the following terms shall mean:

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(1) "City or municipal civil registrar" refers to the head of the local civil registry office of the city or municipality, as the case may be, who is appointed as such by the city or municipal mayor in accordance with the provisions of existing laws. (2) "Petitioner" refers to a natural person filing the petition and who has direct and personal interest in the correction of a clerical or typographical error in an entry or change of first name or nickname in the civil register. (3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (4) "Civil register" refers to the various registry books and related certificates and documents kept in the archives of the local civil registry offices, Philippine Consulates and of the Office of the Civil Register General. (5) "Civil registrar general" refers to the administrator of the National Statistics Office which is the agency mandated to carry out and administer the provision of laws on civil registration. (6) "First name" refers to a name or nickname given to a person which may consist of one or more names in addition to the middle and last names. Sec. 3. Who may File the Petition and Where. - Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register may file, in person, a verified petition with the local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept. In case the petitioner has already migrated to another place in the country and it would not be practical for such party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed, the petition may be filed, in person, with the local civil registrar of the place where the interested party is presently residing or domiciled. The two (2) local civil registrars concerned will then communicate to facilitate the processing of the petition. Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest Philippine Consulates. The petitions filed with the city or municipal civil registrar or the consul general shall be processed in accordance with this Act and its implementing rules and regulations. All petitions for the correction of clerical or typographical errors and/or change of first names or nicknames may be availed of only once. Sec. 4. Grounds for Change of First Name or Nickname. - The petition for change of first name or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by the first name or nickname in the community; or (3) The change will avoid confusion. Sec. 5. Form and Contents of the Petition. - The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths. The affidavit shall set forth facts necessary to establish the merits of the petition and shall show affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries which are sought to be corrected and/or the change sought to be made. The petition shall be supported with the following documents: (1) A certified true machine copy of the certificate or of the page or of the registry book containing the entry or entries sought to be corrected or changed; (2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; and (3) other documents which the petitioner or the city or municipal civil registrar, or the consul general may consider relevant and necessary for the approval of the petition. In case of change of first name or nickname, the petition shall likewise be supported with the documents mentioned in the immediately preceding paragraph. In addition, the petition shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circulation. Furthermore, the petitioner shall submit a certification from the appropriate law enforcement agencies that he has no pending case or no criminal record. The petition and its supporting papers shall be filed in three (3) copies to be distributed as follows: first copy to the concerned city or municipal civil registrar, or the consul general; second copy to the Office of the Civil Registrar General; and the third copy to the petitioner. Sec. 6. Duties of the City of Municipal Civil Registrar or the Consul General. - The city or municipal civil registrar or the consul general to whom the petition is presented shall examine the petition and its supporting documents. He shall post the petition in a conspicuous place provided for the purpose for ten (10) consecutive days after he finds the petition and its supporting documents sufficient in form and substance. The city or municipal civil registrar or the consul general shall act on the petition and shall render a decision not later than five (5) working days after the completion of the posting and/or publication requirement. He shall transmit a copy of his decision together with the records of the proceedings to the Office of the Civil Registrar General within five (5) working days from the date of the decision. Sec. 7. Duties and Powers of the Civil Registrar General. - The civil registrar general shall, within ten (10) working days from receipt of the decision granting a petition, exercise the power to impugn such decision by way of an objection based on the following grounds: (1) The error is not clerical or typographical; 88 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

(2) The correction of an entry or entries in the civil register is substantial or controversial as it effects the civil status of a person; or (3) The basis used in changing the first name or nickname of a person does not fall under Section 4. The civil registrar general shall immediately notify the city or municipal civil registrar or the consul general of the action taken on the decision. Upon receipt of the notice thereof, the city or municipal civil registrar or the consul general shall notify the petitioner of such action. The petitioner may seek reconsideration with the civil registrar general or file the appropriate petition with the proper court. If the civil registrar general fails to exercise his power to impugn the decision of the city or municipal registrar or of the consul general within the period prescribed herein, such decision shall become final and executory. Where the petition is denied by the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the civil registrar general or file the appropriate petition with the proper court. Sec. 8. Payment of Fees. - The city or municipal civil registrar or the consul general shall be authorized to collect reasonable fees as a condition for accepting the petition. An indigent petitioner shall be exempt from the payment of the said fee. Sec. 9. Penalty Clause. - A person who violates any of the provisions of this Act shall, upon conviction, be penalized by imprisonment of not less than six (6) years but not more than twelve (12) years, or a fine of not less than Ten thousand pesos (P10,000.00) but not more than One hundred thousand pesos (P100,000.00), or both, at the discretion of the court. In addition, if the offender is a government official or employee, he shall suffer the penalties provided under civil service laws, rules and regulations. Sec. 10. Implementing Rules and Regulations. - The civil registrar general shall, in consultation with the Department of Justice, the Department of Foreign Affairs, the Office of the Supreme Court Administrator, the University of the Philippines Law Center and the Philippine Association of Civil Registrars, issue the necessary rules and regulations for the effective implementation of this Act not later than three (3) months from the effectivity of this law. Sec. 11. Retroactivity Clause. - This Act shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code and other laws. Sec. 12. Separability Clause. - If any portion or provision of this Act is declared void or unconstitutional, the remaining portions or provisions thereof shall not be affected by such declaration. Sec. 13. Repealing Clause. - All laws, decrees, orders, rules and regulations, other issuances, or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. Sec. 14. Effectivitiy Clause. - This Act shall take effect fifteen (15) days after its complete publication in at least two (2) national newspapers of general circulation.

Nature of Proceeding

Scope

Nature of Proceeding

Scope

RULE 103 Judicial

Substantial changes in name, including surname Rule 108 Judicial

Substantial changes in entries in the civil registry, other than name

Rule 108 Nature of Proceeding Judicial Scope Substantial changes in entries in the civil registry, other than name Who may File Any person interested in any act, event, order, or decree concerning the civil status of persons. Where and How Verified petition filed in the Filed RTC where the corresponding civil registry is located Standing of Local Civil register concerned is Civil Register made party to the proceeding as a respondent. Notice requirement The court shall cause reasonable notice to be given to persons named in the petition. *tables from UP LAW BAROPS REVIEWER

RA 9048 Administrative: Petition is filed before the local civil registrar or, for non-resident citizens, the consul general Correction of clerical or typographical errors and changes in first name or nickname RA 9048 Administrative: Petition is filed with the local civil registrar or, for non-resident citizens, the consul general Correction of clerical or typographical errors and changes in first name or nickname

RULE 103 Judicial Substantial changes in name, including surname

Person desiring to change his name or some other person on his behalf

Petition filed in the RTC where the petitioner resides

Civil register is not a party to the proceeding.

No mention of cause of notice to be sent.

YU V. REPUBLIC Summary: An alien minor wants to apply for a change of name to a name by which he was baptized and by which he is known in school but the JDRC denied his petition on the sole ground that he is an alien. Rule 103 does not say that only citizens of the Philippines may petition for a change of name. The word “peson” is a generic term which is not limited to Filipino citizens, but embraces all natural persons. The rule does not even require that the citizenship of the petitioner be stated in his petition. It is enough that the petition be verified, signed by the petitioner or some other person in his behalf, and set forth: (b) That the petitioner has been a bona fide resident of the province where the petition has been filed for at least 3 years to the date of filing; (c) The cause for which the change of name is sought; and (d) The name asked for Section 2. 89 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

The rule is clear and affords no room for interpretation. It sets forth all the requirements and Filipino citizenship is not one of them. Facts JOSELITO YU, represented by guardian ad litem JUAN SY BARRERA, filed a petition for the Change of his name from JOSELITO YU to RICARDO SY -allegations: o Minor (13 years) o Chinese Citizen o Resident of Manila for more than 3 years prior to filing of petition -cause for change of name:  He grew up under the care and custody of his guardian ad litem using the name "RICARDO SY"  He is enrolled in school under the said name  He was baptized "RICARDO SY" with his real name also stated -JDRC: DISMISSED: Rule 103 cannot be invoked by aliens >since the use of surnames is based on family rights, and since under Article 15 of the Civil Code laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines even though living abroad, the converse of the principle must be recognized, that is to say, the same matters in respect of an alien must be governed by the laws of his own country. WON the petition was correctly dismissed because the petitioner was an alien? NO. Being an Alien is not a prerequisite. -Section 1 provides that "a person desiring to change his name shall present the petition to the Court of First Instance of the province in which he resides, or, in the City of Manila, to the Juvenile and Domestic Relations Court." Here the word "person" is a generic term which is not limited to Filipino citizens, but embraces all natural persons. The rule does not even require that the citizenship of the petitioner be stated in his petition. It is enough that the petition be verified, signed by the petitioner or some other person in his behalf, and set forth (a) that the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of filing; (b) the cause for which the change of name is sought; and (c) the name asked for (section 2). The rule is clear and affords no room for interpretation. It sets forth all the requirements, and Filipino citizenship is not one of them. -On JDRC's ruling: a change of name as authorized under Rule 103 does not by itself define, or effect a change in, one's existing family relations, or in the rights and duties flowing therefrom; nor does it create new family rights and duties where none before were existing. It does not alter one's legal capacity, civil status or citizenship. What is altered is only the name, which is that word or combination of words by which a person is distinguished from others and which he bears as the label of appellation for the convenience of the world at large in addressing him, or in speaking of or dealing with him. The situation is no different whether the person whose name is changed be a citizen or an alien. -purpose of petition: to determine whether there is proper and reasonable cause for the change of name -granting of petition is discretionary: the change is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will likely follow Disposition: Remanded ONG PENG OAN V. REPUBLIC Summary: A Chinese man, convicted twice before for gambling, wants to change his name allegedly because he has been using it since his arrival in the Philippines, and it is with this name that he has been

known. Court found that he has different aliases, and uses it whenever he pleases, so this doesn’t show that his petition was justified. The change is not a matter of right but judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will likely follow. A change of name is a mere privilege and not a matter of right. A person with a criminal record will have evident interest in the use of a name other than his own, in an attempt to obliterate an unsavory record; hence, the mere fact that the applicant has been using a different name and has become known by it does not per se alone constitute “proper and reasonable cause”, or justification, to legally authorize a change of name. There being no showing that petitioner will be prejudiced by the continued use of his true name, for in fact he has been using it all along together with the other names he has assumed on different occasions, we fail to see any error or abuse of discretion on the part of the trial court in denying the petition. Where prior convictions exist, it is the court’s duty to consider carefully the consequences of the change of name, and to deny the same unless weighty reasons are shown. Facts -ONG PENG OAN:  Chinese  45 years old  Married businessman  Lived in Sampaloc -filed a petition to change his name to VICENTE CHAN BON LAY Reasons:  He has been using that name since his arrival in the country  That is the name by which he is known in both business and social circles TC: DISMISSED PETITION -convicted 2x for gambling -petitioner was not using VICENTE CHAN BON LAY because when he was convicted, his name was ONG PIN CAN and ONG PEN OAN alias VICENTE CHAN - he changes his name whenever it suits his convenience WON the dismissal of the petition was warranted? YES -A person with a criminal record will have evident interest in the use of a name other than his own, in an attempt to obliterate an unsavory record; hence, the mere fact that the applicant has been using a different name and has become known by it does not per se alone constitute "proper and reasonable cause", or justification, to legally authorize a change of name. -No prejudice by the continued use of his true name -Where prior convictions exist, it is the court's duty to consider carefully the consequences of the change of name, and to deny the same unless weighty reasons are shown. -the State has an interest in the names borne by individuals and entities for purposes of identification, and that a change of name is a privilege and not a matter of right. X. VOLUNTARY DISSOLUTION OF CORPORATIONS RULE 104 Voluntary Dissolution of Corporations Section 1. Where, by whom and on what showing application made. - A petition for dissolution of a corporation shall be filed in the Court of First Instance of the province where the principal office of a corporation is situated. The petition shall be signed by a majority of its board of directors or other officers having the management of its affairs, verified by its president or secretary or one of its directors, and shall set forth all claims and demands against it, and that its dissolution was resolved upon by a majority of the members, or, if a stock corporation, by the affirmative vote of the stockholders holding 90 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

and representing two-thirds of all shares of stock issued or subscribed, at a meeting of its members or stockholders called for that purpose. Section 2. Order thereupon for filing objections. - If the petition is sufficient in form and substance, the court by an order reciting the purpose of the petition, shall fix a date on or before which objections thereto may be filed by any person, which date shall not be less that thirty (30) nor more than sixty (60) days after the entry of the order. Before such date a copy of the order shall be published at least once a week for four (4) successive weeks in some newspaper of general circulation published in the municipality or city where the principal office of the corporation is situated, or, if there be no such newspaper, then in some newspaper of general circulation in the Philippines, and a similar copy shall be posted for four (4) weeks in three public places in such municipality or city. Section 3. Hearing, dissolution, and disposition of assets. Receiver. - Upon five (5) days notice given after the date on which the right to file objections as fixed in the order expired, the court shall proceed to hear the petition and try any issue made by objections filed; and if no such objection is sufficient, and the material allegations of the petition are true, it shall render judgment dissolving the corporation and directing such disposition of its assets as justice requires, and may appoint a receiver to collect such assets and pay the debts of the corporation. Section 4. What shall constitute record. - The petition, orders, proof of publication and posting, objections filed, declaration of dissolution, and any evidence taken, shall constitute the record in the case. JUDICIAL APPROVAL OF V OLUNTARY RECOGNITI ON OF MINOR NATURAL CHILDREN RULE 105 Judicial Approval of Voluntary Recognition of Minor Natural Children Section 1. Venue. - Where judicial approval of a voluntary recognition of a minor natural child is required, such child or his parents shall obtain the same by filing a petition to that effect with the Court of First Instance of the province in which the child resides. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court. Section 2. Contents of petition. - The petition for judicial approval of a voluntary recognition of a minor natural child shall contain the following allegations: (a) The jurisdictional facts; (b) The names and residences of the parents who acknowledged the child, or of either of them, and their compulsory heirs, and the person or persons with whom the child lives; (c) The fact that the recognition made by the parent or parents took place in a statement before a court of record or in an authentic writing, copy of the statement or writing being attached to the petition. Section 3. Order for hearing. - Upon the filing of the petition, the court, by an order reciting the purpose of the same, shall fix the date and place for the hearing thereof, which date shall not be more than six (6) months after the entry of the order, and shall, moreover, cause a copy of the order to be served personally or by mail upon the interested parties, and published once a week for three (3) consecutive weeks, in a newspaper or newspaper of general circulation in the province. Section 4. Opposition. - Any interested party must, within fifteen (15) days from the service, or from the last date of publication, of the order referred to in the next preceding section, file his opposition to the petition, stating the grounds or reasons therefor.

Section 5. Judgment. - If, from the evidence presented during the hearing, the court is satisfied that the recognition of the minor natural child was willingly and voluntarily made by he parent or parents concerned, and that the recognition is for the best interest of the child, it shall render judgment granting judicial approval of such recognition. Section 6. Service of judgment upon civil registrar. - A copy of the judgment rendered in accordance with the preceding section shall be served upon the civil registrar whose duty it shall be to enter the same in the register. Cf: Family Code provisions (kasi ung mga cases uses NCC) Chapter 2. Proof of Filiation Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a) Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. … Chapter 3. Illegitimate Children Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. (289a) BANAS V. BANAS Summary: Raymundo Banas initially had no father, but was supported by Bibiano Banas and was treated by the latter as his own son. It appeared that Bibiano’s brother Pedro was the real father of Raymundo, and thereafter, Pedro made legal amends to documents wherein Bibiano was stated as Raymundo’s father. When Bibiano died, Raymundo’s heirs (Raymundo also died) claimed share in the inheritance from Bibiano, arguing that Raymundo is Bibiano’s natural and acknowledged child, showing documents allegedly showing that Bibiano acknowledged to be the father of Raymundo, even showing a letter with “Su Padre”. Court held that the documents presented were not enough to prove that Bibiano did recognize Raymundo to be his child and that Raymundo should have initiated proceedings for acknowledgment during the lifetime of his alleged father, and even after but during his lifetime. In the Gustilo v. Gustilo, wherein the evidence submitted as proof of voluntary recognition does not only include a letter written by the alleged father to the natural child which also ends with the complimentary ending “ tu padre”, but other stronger evidence tending to show voluntary recognition, the Court held that such evidence does not prove express recognition. *warning: long digest because long case! Facts -RAYMUNDO BANAS was born out of wedlock in March 15, 1894 (haha, advance happy birthday. By the time na nadiscuss to sa class its March 13) -mother: DOLORES CASTILLO 91 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

-father: unknown earlier in his life (but later alleged that it was PEDRO BANAS) -RAYMUNDO'S education was shouldered by a surgeon, BIBIANO BANAS -one day when RAYMUNDO was 13 years old, BIBIANO finding him not home yet, wrote him a handwritten note which read: Mundo hoy a las 10 y 45. Tu no estas en casa. No requieres tu obedecer lo que te dije que en estas horas estudiar, descansar y ayudar con su madre. Que no veo mas otraves asi. 23/5/7 Su Padre (Sgd.) B. Bañas. -RAYMUNDO became a teacher. BIBIANO subsequently married FAUSTINA VECINO BANAS and had children -When RAYMUNDO was 28 years old, he met his future wife TRINIDAD VECINO (niece of BIBIANO's wife FAUSTINA, being the daughter of FAUSTINA's brother ANGEL) -RAYMUNDO and FAUSTINA subsequently got married. In the marriage certificate, BIBIANO was named as the father of RAYMUNDO and PEDRO was named a principal sponsor. -RAYMUNDO and PEDRO executed a sworn statement wherein: As for RAYMUNDO  RAYMUNDO declared that he was the natural child of DOLORES and an unknown father, who he later known to be PEDRO BANAS  That he realized that his marriage certificate had an error, stating his father to be BIBIANO instead of PEDRO  That he wanted to correct the said error As for PEDRO  RAYMUNDO is his natural son  He found that the marriage certificate erred in stating that he is not the father of his sn  That he is executing the document to ask for correction from the Justice of Peace of Pasay who where RAYMUNDO and TRINIDAD got married -both sworn statements were recorded in the Notarial book of Notary Public Andres Faustino -Both sworn statements were filed with the Office of the Justice of Peace of Pasay and the said justice of peace issued a CONSTANCIA correcting the error (I think…Spanish eh) -subsequently the marriage contract was corrected, making PEDRO the father of RAYMUNDO -PEDRO also wrote to Archibishop of Manila where he acknowledged RAYMUNDO as his natural son and asked for the correction of the baptismal certificate of RAYMUNDO as well as those of RAYMUNDO's children (to specify that he is the grandfather, not BIBIANO) -BIBIANO executed a sworn statement saying that PEDRO had a child RAYMUNDO -RAYMUNDO and his family later moved from QUIAPO to KALIMBA ST., SANTA CRUZ (owned by BIBIANO but transferred to RAYMUNDO's name) -BIBIANO died in 1954. At that time, RAYMUNDO was already 60 years old -a year later, RAYMUNDO wrote to Atty. Faustino complaining bitterly about the alleged injustices done to him by BIBIANO's wife FAUSTINA, and alleged that he had proof against Faustina -a year after BIBIANO's death, the heirs extra-judicially settled BIBIANO's estate -later that year, RAYMUNDO and TRINIDAD executed a mortgage over their house in KALIMBAS St. in favor of ANGEL BANAS (son of BIBIANO with FAUSTINA) but was later cancelled. -8 years after BIBIANO's death, RAYMUNDO died -3 years after RAYMUNDO's death (11 years after BIBIANO's), the heirs of RAYMUNDO filed a complaint for partition or recovery of hereditary share of RAYMUNDO in BIBIANO's estate, alleging that RAYMUNDO is an acknowledged natural child of BIBIANO -Evidence presented (allegedly found by TRINIDAD in RAYMUNDO's aparador after his death): *I only included some which were discussed in the decision*

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EXHIBIT A: the handwritten note by BIBIANO to RAYMUNDO when he was 13 years old "Su Padre, B. Banas"  EXHIBITS "D" & "E": matriculation certificates of RAYMUNDO in SAN BEDA wherein it was stated "RAYMUNDO BANAS is hijo de BIBIANO BANAS"  EXHIBITS "F"…RAYMUNDO's gradeschool report card wherein BIBIANO signed as the parent/guardian of RAYMUNDO (though attempted to be erased)  EXHIBIT G: Form 137 of RAYMUNDO showing that his parent-guardian is BIBIANO  EXHIBITS "K" & "L": Autobiographies of RAYMUNDO  EXHIBIT H: marriage certificate of RAYMUNDO and TRINIDAD -defendant's evidence (found in BIBIANO's safe):  Duplicate copies of sworn statements made by RAYMUNDO and PEDRO (wherein they acknowledged being father and son)  Duplicate copy of the sworn statement executed by BIBIANO (wherein he said that RAYMUNDO is his brother's son)  Duplicate copy of PEDRO's letter to the archbishop (wherein he wanted to be indicated as RAYMUNDO's father in the baptismal certificate) TC: DISMISSED COMPLAINT WON BIBIANO had voluntarily acknowledged RAYMUNDO BANAS as hs natural son through his handwritten note where he signed "Su padre" B. Banas? NO -on authenticity of handwriting: TRINIDAD testified that the handwriting on thenote is BIBIANO's, as she saw BIBIANO write. However, the note was written in 1907, but TRINIDAD saw BIBIANO write in 1917. The testimony was considered unreliable, with the lapse of time. Any testimony that the writing is the handwriting of a person no the ground that the witness is familiar with the handwriting must be considered unreliable. -even granting it's authentic, it's not sufficient as proof of valid voluntary recognition: The complimentary ending, "Su padre," taking into consideration the context of the entire letter, is not an indubitable acknowledgment of paternity. It is a mere indication of paternal solicitude. The Filipinos are known for having very close family ties. Extended families are a common set-up among them, sometimes to the extent that strangers are also considered as part of the family. In addition, Filipinos are generally fond of children, so that children of relatives or even of strangers are supported if their parents are not capable to do so. This is a manifestation of the fact that Filipinos are still living in a patriarchal society. -compared to GUSTILLO v. GUSTILLO: similar evidences presented. There, the evidence presented were not signed by the putative father. The note where the putative father addressed the alleged daughter "Queridas hijas: ... Conservanmas buenas que es siempre el desee de tu padre." was held to be not an unequivocal avowal that the alleged daughter was indeed such by the putative father. It is not uncommon in many Filipino homes that a child who is a perfect stranger to the family but who was taken under similar circumstances, is regarded as a member of the family and called "hija" or "hijo " by the head thereof.' -VOLUNTARY RECOGNITION: Article 278, NCC (taken from old civil code - Article 131) ...formalities: express, made in either:  Record of birth  Will  Statement before a court of record (n)  Any authentic writing (not public document anymore) ...express recognition (Estate of Pareja v. Pareja): must be precise, express and solemn

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WON the "Su Padre" note could be considered sufficient to apply the rule of incidental acknowledgment? NO. -the plaintiffs cite DONADO v. MENENDEZ DONADO (acknowledgment made in a public orprivate document need not be direct ): the authorities cited endorse incidental acknowledgment, in cases of voluntary recognition, if the alleged voluntary recognition were made in a PUBLIC DOCUMENT. -the authorities cited were made during the old civil code (where the voluntary recognition may be made only in a record of birth, will or other public document - no private document yet!) -the cited statement was later clarified in JAVELONA v. MONTECLARO -ratio why incidental acknowledgment allowed only in public documents: The father would ordinarily be more careful about what he says in a public document than in a private writing, so that even an incidental mention of the child as his in a public document deserves full faith and credit ... -voluntary recognition vs. express recognition: Voluntary recognition (A131)

Express recognition (A135)

Record of birth, will, public document

Private writing may be considered as "indubitable writing"

natural child merely asks for a share in the inheritance in virtue of his having been acknowledged as such, not trying to compel father or his heirs to make the acknowledgment

compel the father or his heirs to recognize the child

acknowledgment has been formally and legally accomplished because the public character of the document makes judicial pronouncement unnecessary

recognition is yet to be ordered by the courts because a private writing, lacking the stronger guaranty and higher authenticity of a public document, is not self-executory

-even if treated as an "indubitable writing", no intent to recognize sufficiently apparent in the document. It's merely an indication of paternal concern of one for the well-being of the natural son of his brother who could nto support or rear the boy. WON the other records would be sufficient to confirm the intention of Bibiano to recognize RAYMUNDO as his natural son? NO. -no evidence that Bibiano furnished the statements therein or had any participation in securing the enrollment and the marriage certificate of Raymundo nor made representations in connections therewith -the authentic writing upon which the claim to filiation rests must, to be effective, be one made by the putative father himself and that the writing must be the writing of the said alleged father -on REPORT CARD: PEDRO, RAYMUNDO and DOLORES lived with BIBIANO when RAYMUNDO was attending gradeschool: It would appear, therefore, that Pedro Bañas was unable to support himself and his wife, and it could very well be that Bibiano Bañas had sort of adopted de facto—not—legally or considered Raymundo, the son of his brother, to be his own "ampon" in Tagalog or Filipino, and had taken paternal solicitude for him - so he is a GUARDIAN If there's any acknowledgment, WON BIBIANO could validly rectify or repudiate the same by his sworn statement? YES -no law prohibiting it -if there's no law, it doesn't mean that it cannot be done. - such rectification must not be arbitrary and its purpose must be to show that the acknowledged child does not have the conditions that the law requires in order that he may be so acknowledged, or that he

has not the absolute condition of being the child of the person who acknowledged him, or that such person could not have begotten him, or that the child is the child of a third person -BIBIANO only made the rectification after RAYMUNDO and PEDRO executed sworn statements wherein they each recognized their filiation as father and son. -RAYMUNDO could have nullified or formally declared as untrue the statements he made in his sworn statements but did not: Where a party has the means in his power of rebutting and explaining the evidence adduced against him, f it does not tend to the truth, the omission to do so furnishes a strong inference against him WON RAYMUNDO could have filed for COMPULSORY RECOGNITION? NO -Raymundo should and could have filed an action for compulsory recognition during Bibiano's lifetime, alleging continuous possession of the status of a natural child by direct acts of Bibiano or of his family, and that he has in his favor proof that Bibiano is his father: Raymundo was already of age before his alleged father's death. Thus, after Bibiano's death, he cannot claim compulsory recognition as the child of Bibiano -under the provisions for COMPULSORY RECOGNITION (A135, OCC; A283 NCC): Art. 135. The father may be compelled to acknowledge his natural child in the following cases: 1. When an indubitable writing of his exists in which he expressly acknowledges his paternity; 2. When the child is in the uninterrupted possession of the status of a natural child of the defendant father, justified by the conduct of the father himself or that of his family; ... (emphasis supplied). Art. 283. In any of the following cases, the father is obliged to recognize the child as his natural child: xxx xxx xxx 2. When the child is in continuous possession of the status of a child of the alleged father by the direct acts of the latter or of his family; 3. When the child was conceived during the time when the mother cohabited with the supposed father; 4. When the child has in his favor any evidence or proof that the defendant is his father (emphasis supplied). -under A137, OCC; A285, NCC: action for compulsory recognition prescribes if not taken during the lifetime of the alleged parents, unless the case falls under the exceptions which allows the filing of such action even after the death of the alleged parents: ONE OF WHICH IS WHEN AFTER THE DEATH OF THE PUTATIVE PARENT, A DOCUMENT APPEARS OF WHICH NOTHING HAD BEEN HEARD AND IN WHICH PARENT RECOGNIZES THE CHILD …here, the alleged document is not unknown to RAYMUNDO nor to TRINIDAD ...Documents allegedly proving RAYMUNDO's filiation with BIBIANO were allegedly only discovered after RAYMUNDO's death: BUT  Trinidad should have known about these documents even during the lifetime of RAYMUNDO, as RAYMUNDO was naturally expected to share with his wife TRINIDAD his bitterness, more so because TRINIDAD was the niece of FAUSTINA who allegedly deprived him of his share. It is highly improbable that RAYMUNDO would hide from his wife whatever proofs he has in his possession to support his claim to a share n estate.  It is not normal for Trinidad to not have seen RAYMUNDO's DEATH MEMENTOs which would tend to establish his filiation to BIBIANO, it having sentimental value  TRINIDAD's testimonies conflict: in the cross, she said RAYMUNDO did not discuss with her matters pertaining to RAYMUNDO's claim in BIBIANO's estate. However, during the re-cross, she alleged that RAYMUNDO did discuss it with her (Raymundo and she allegedly went to FAUSTINA to claim their share) -RAYMUNDO was bitter because of the partition, but if he really is the natural acknowledged child, he should have filed a claim against the estate during the 8 years between BIBIANO's death and his own 93 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

WON granting RAYMUNDO could have filed an action for compulsory recognition, upon his death his heirs could file such action? NO -Right to file for compulsory recognition is NOT TRANSMISSIBLE TO THE NATURAL CHILD'S HEIRS. -the right is purely a personal one to the natural child -It is most illogical and contrary to every rule of correct interpretation that the right of action to secure acknowledgment by the natural child should be presumed to be transmitted, independently, as a rule, to his heirs, while the right to claim legitimacy from his predecessor is not, as a rule, conceded to the heirs of the legitimate child, but only relatively and as an exception. Consequently, the pretention that the right of action no the part of the child to obtain the acknowledgment of his natural filiation is transmitted to his descendants is altogether No legal provision exists to sustain such pretention, nor can an argument of presumption be based no the lesser claim when there is no basis for the greater one, and when it is only given as an exception in well-defined cases. It is placing the heirs of the natural child no a better footing than the heirs of the legitimate one, when, as a matter of fact, the position of natural child is not better than, nor even equal to, that of a legitimate child UYGUANGCO V. CA *this case explains the effect of FC on NCC provisions on proving filiation Summary: Graciano, the alleged illegitimate child of Apolinario, filed a complaint for partition, alleging that he has been left out of the partition by the heirs of his putative father. Defendants alleged that the action should be dismissed, as he is collaterally establishing his illegitimate filiation to a putative father who is already dead. Court held that even if he has shown prima facie proof that he is indeed an illegitimate son of the decedent whose estate is being partitioned, he should have established his filiation during the lifetime of his father to participate in the partition. It is clear that the private respondent can no longer be allowed at this time to introduce evidence of his open and continuous possession of the status of an illegitimate child or prove his alleged filiation through any of the means allowed by the Rules of Court or special laws. The simple reason is that Apolinario Uyguangco is already dead and can no longer be heard on the claim of his alleged son’s illegitimate filiation. In her Handbook on the Family Code, of the Philippines, Justice Alicia Sempio-Dy explains the rationale of the rule, thus: “It is a truism that unlike legitimate children who are publicly recognized, illegitimate children are usually begotten and raised in secrecy and without the legitimate family being aware of their existence. Who then can be sure of their filiation but the parents themselves? But suppose the child claiming to be the illegitimate child of a certain person is not really the child of the latter? The putative parent should thus be given the opportunity to affirm or deny the child’s filiation, and this, he or she cannot do if he or she is already dead. Facts -APOLINARIO UYGUANGCO died -heirs:  DOROTEA (wife)  4 legitimate children:  Virgilio  Apolinario, Jr.  Sulpicio  Dominador .. The heirs made an extrajudicial settlement of APOLINARIO's estate -GRACIANO BACJAO UYGUANGCO filed complaint for partition, alleging that he is an illegitimate child who was left out of the partition made:  Born to APOLINARIO UYGUANGCO and ANASTACIO BACJAO

  

At 15, moved to father's house, at urging of father and his family His education was supported by father. He uses the surname UYGUANGCO w/o objection from his father or his family. He even used it in his high school diploma  He was assigned, w/o objection from the rest of the family, as the storekeeper in the Uyguangco's store, which is strictly a family business  He even shares profits of the copra business of the family  He became director of the Alu and Sons Dev't Corporation, a family corporation  In addendum: he was given a share in deceased father's estate -MTD: Graciano could not prove filiation, applying A278, NCC:  Graciano did not have any of the 4 documents required under NCC to prove filiation (no record of birth, will, statement before a court of record or authentic writing)  Graciano's action for recognition already prescribed: must have brought during the lifetime of the putative father  Graciano's case does not fall under the exception to the prescriptive period, as stated in A285: Not a minor at the time Apolinario died, nor are there documents unknown to them which were only found after death of Apolinario -TC: Denied MTD -petition for review: such complaint for partition is actually an action for recognition as an illegitimate child, which, being already barred, is a clear attempt to circumvent the provisions of the NCC -Graciano claims that even if he did not have any of the documents required, he was"in continuous possession of the status of a child of his alleged father by the direct acts of the latter or of his family." WON an illegitimate child should be allowed to prove such illegitimate filiation when the putative father is already dead? NO -here, FC used, which became effective August 3, 1988 (probably, the petition was filed when FC became effective). -to prove filiation under FC, establish any of the ff: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. -under FC, an illegitimate child can establish a claim to filiation by "any other means allowed by the Rules of Court and special laws," like his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court. -HOWEVER, HIS ACTION IS NOW BARRED. It is clear that the private respondent can no longer be allowed at this time to introduce evidence of his open and continuous possession of the status of an illegitimate child or prove his alleged filiation through any of the means allowed by the Rules of Court or special laws. The simple reason is that Apolinario Uyguangco is already dead and can no longer be heard on the claim of his alleged son’s illegitimate filiation. In her Handbook on the Family Code, of the Philippines, Justice Alicia Sempio-Dy explains the rationale of the rule, thus: “It is a truism that unlike legitimate children who are publicly recognized, illegitimate children are usually begotten and raised in secrecy and without the legitimate family being aware of their existence. Who then can be sure of their filiation but the parents themselves? But suppose the child claiming to be the illegitimate child of a certain person is not really

the child of the latter? The putative parent should thus be given the opportunity to affirm or deny the child’s filiation, and this, he or she cannot do if he or she is already dead. -the NCC provisions on which Graciano relied on are amended by FC, thus, the said actions for recognition are now barred -his filiation cannot be established collaterally ASSIGNMENT NO. 13 RULE 106: Constitution of Family Home Section 1. Who may constitute. - The head of a family owning a house and the land on which it is situated may constitute the same into a family home by filing a verified petition to that effect with the Court of First Instance of the province or city where the property is located. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court. When there is danger that a person obliged to give support may lose his or her fortune because of grave mismanagement or on account of riotous living, his or her spouse, if any, and a majority of those entitled to be supported by him or by her may petition the Court of First Instance for the creation of the family home. Section 2. Contents of petition. - The petition shall contain the following particulars: (a) Description of the property; (b) An estimate of its actual value; (c) A statement that the petitioner is actually residing in the premises; (d) The encumbrances thereon; (e) The names and addresses of all the creditors of the petitioner or head of the family and of all mortgages and other persons who have an interest in the property; (f) The names of all the beneficiaries of the family home. Section 3. Notice and publication. - The court shall notify the creditors, mortgagees and all other persons who have an interest in the estate, of the filing of the petition, causing copies thereof to be served upon them, and published once a week for three (3) consecutive weeks in a newspaper of general circulation. The petition shall, moreover, be caused to be posted in a conspicuous place in the parcel of land mentioned therein, and also in a conspicuous place of the municipal building of the municipality or city in which the land is situated, for at least fourteen (14) days prior to the day of the hearing. Section 4. Objection and date of hearing. - In the notice and publication required in the preceding section, the court shall require the interested parties to file their objection to the petition within a period of not less than thirty (30) days from receipt of notice or from the date of last publication, and shall fix the date and time of the hearing of the petition. Section 5. Order. - After hearing, if the court finds that the actual value of the proposed family home does not exceed twenty thousand pesos, or thirty thousand pesos in chartered cities, and that no third person is prejudiced thereby, or that creditors have given sufficient security for their credits, the petition shall be approved. Section 6. Registration of order. - A certified copy of the order of the court approving the establishment of the family home shall be furnished the register of deeds who shall record the same in the registry of property. Family Code

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Chapter 2. The Family Home Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a) Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a) Art. 154. The beneficiaries of a family home are: (1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. (226a) Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (243a) Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an unmarried head of a family on his or her own property. Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (227a, 228a) Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law. In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation. For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a) Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a) Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (238a) 95 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

Art. 160. When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply. At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 248a) Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home. (n) Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. (n) MODEQUILLO V. BREVA Summary: Family home was being attached for enforcement of judgment awarding damages against Modequillo for a vehicular accident which caused the death of the victim. Court held that since the family home was not constituted in accordance to the Civil Code (which was applicable when the Judgment became final), then the family home is not exempted from execution. Family Code provisions not retroactive. Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouse or head of the family who owns the home. Facts: -Jose Modequillo and Benito Malubay were involved in a vehicular accident in March 1976, resulting to the death of AUDIE SALINAS. -Case was filed against them, and judgment was rendered in favor of Salinas heirs. Judgment became final JANUARY 1988. -Writ of execution was issued by RTC Davao. -Sheriff levied on the ff: ○ RESIDENTIAL Land in Poblacion Malalag, Davao del Sur (in Modequillo's name) ○ AGRICULTURAL land (also in Davao del Sur in the name of Modequillo) -Modequillo filed a MOTION TO QUASH/TO SET ASIDE LEVY OF EXECUTION: • The residential land is a family home built since 1969 § So under FC, it's exempt from liabilities except those enumerated in A155 - and the judgment sought to be enforced is not one of them • Agricultural land: land, though declared in Modequillo's name, is still public land, because the application for transfer from a cultural minority was not approved TC: Denied motion; MFR denied WON the Family Home can be attached? YES

Full Arguments of Modequillo: • Residential house and lot was duly constituted was occupied since 1969 in accordance with the FC, and not on AUG 1988 when FC became effective • Residential house and lot is exempt from payment § Vehicular mishap happened 1976 - after family home constituted by residence starting 1969 § Judgment became final JANUARY 1988 § The judgment is ot one of the instances enumerated under A155,FC RULING 1. The exemption provided in A155 is effective FROM THE TIME OF CONSTITUTION OF FAMILY HOME, LASTS AS LONG AS ANY OF ITS BENEFICIARIES ACTUALLY RESIDES THEREIN 2. HERE: Family Home not constituted judicially nor extrajudicially under NCC 3. Family home only constituted AUG 3 (not 4) 1988, 1 year after publication in Manila Chronicle 4. Interpretation of A162,FC: DOESN'T MEAN that a. A152 AND A153 have a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the FC and b. Family homes before (constituted by mere residence) are exempt from execution for payment of obligations before effectivity of FC -FC applies prospectively 5. SINCE both the accident and the finality of the judgment occurred BEFORE THE EFFECTIVITY OF FC, FC not yet applicable so not exempt. ABSENTEES -RULE 107 RULE 107: Absentees Section 1. Appointment of representative. - When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend may petition the Court of First Instance of the place where the absentee resided before his dis-appearance, for the appointment of a person to represent him provisionally in all that may be necessary. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court. Section 2. Declaration of absence; who may petition. - After the lapse of two (2) years from his disapperance and without any news about the absentee or since the receipt of the last news, or of five (5) years in case the absentee has left a person in charge of the administration of his property, the declaration of his absence and appointment of a trustee or administrative may be applied for by any of the following: (a) The spouse present; (b) The heirs instituted in a will, who may present an authentic copy of the same. (c) The relatives who would succeed by the law of intestacy; and (d) Those who have over the property of the absentee some right subordinated to the condition of his death. Section 3. Contents of petition. - The petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or an administrator, must show the following: (a) The jurisdictional facts; (b) The names, ages, and residences of the heirs instituted in the will, copy of which shall be presented, and of the relatives who would succeed by the law of intestacy; (c) The names and residences of creditors and others who may have any adverse interest over the property of the absentee;

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(d) The probable value, location and character of the property belonging to the absentee. Section 4. Time of hearing; notice and publication thereof. - When a petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or administrator, is filed, the court shall fix a date and place for the hearing thereof where all concerned may appear to contest the petition. Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before the day of the hearing, and shall be published once a week for three (3) consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best. Section 5. Opposition. - Anyone appearing to contest the petition shall state in writing his grounds therefor, and serve a copy thereof on the petitioner and other interested parties on or before the date designated for the hearing. Section 6. Proof at hearing; order. - At the hearing, compliance with the provisions of section 4 of this rule must first be shown. Upon satisfactory proof of the allegations in the petition, the court shall issue an order granting the same and appointing the representative, trustee or administrator for the absentee. The judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, trustee or administrator, regulating them by the rules concerning guardians. In case of declaration of absence, the same shall not take effect until six (6) months after its publication in a newspaper of general circulation designated by the court and in the Official Gazette. Section 7. Who may be appointed. - In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor or otherwise incompetent, any competent person may be appointed by the court. In case of declaration of absence, the trustee or administrator of the absentee's property shall be appointed in accordance with the preceding paragraph. Section 8. Termination of administration. - The trusteeship or administration of the property of the absentee shall cease upon order of the court in any of the following cases: (a) When the absentee appears personally or by means of an agent; (b) When the death of the absentee is proved and his testate or intestate heirs appear; (c) When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title. In these cases the trustee or administrator shall cease in the performance of his office, and the property shall be placed at the disposal of whose may have a right thereto. REYES V. ALEJANDRO Summary: Wife of absentee (after 9 years of marriage, w/o any property put up by the conjugal partnership) wanted to have her husband declared as absent. Court held that since absentee did not leave any property when he went missing, no point in declaring him absent (which is primarily done for the protection of his estate) Declaration of Absence May be Made in Administration Proceedings

It is not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for administrator. Declaration of Absence is Unnecessary Where There are NO properties The need to have a person judicially declared an absentee is when he has properties which have to be taken care of or administered by a representative appointed by the Court; the spouse of the absentee is asking for separation of property, or his wife is asking the Court that the administration of all classes of property in the marriage be transferred to her. The petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings. Hence, there is no need for such declaration if there are no properties. Facts -ROBERTO REYES and ERLINDA REYNOSO REYES got married in May 20, 1960 -due to some misunderstanding over personal matters, ROBERTO left ERLINDA in April 1962. Since then, no news about whereabouts of ROBERTO was heard -October 1969, ERLINDA filed a petition for declaration of absence of her husband. ROBERTO left no will, nor any property in his name, nor any debts: o They have not acquired any properties during their marriage o They have no outstanding obligation in favor of anyone o Filed petition just to establish the absence of her husband TC: DISMISS: no properties left WON Petition for declaration of absence would prosper? NO -SC just affirmed TC's decision o For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. o For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage (section III, paragraph 2, General Orders, No. 68)." (On page 183). -The need to have a person judicially declared an absentee is when o he has properties which have to be taken cared of or administered by a representative appointed by the Court (Article 384, Civil Code); o the spouse of the absentee is asking for separation of property (Article 191, Civil Code) o or his wife is asking the Court that the administration of all classes of property in the marriage be transferred to her (Article 196, Civil Code). -The petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings, Peyer vs. Martinez, 88 Phil. 72, 80).

DAYA MARIA TOL-NOGUERA V VILLAMOR Summary: An alleged acknowledged natural daughter wanted to petition that her putative father be declared absent and that she be appointed as administrator of his estate, citing as justification the allged fraudulent transfer of her putative father’s land to the name of his father’s relative. The petition was assailed on the ground that it is a collateral attack to a Torrens Title and that she is not an acknowledged

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natural child. Court held that no collateral attack on Torrens title, and that it is not necessary that she be an heir to be appointed as administrator. Facts: -DEC 1986: DAYA MARIA-TOL filed PETITION TO declare her the administrator of her father's (REMIGIO TOL's) properties (as well as to declare her father absent):  DAYA MARIA-TOL allegedly the acknowledged natural child of REMIGIO TOL  REMIGIO TOL has been missing since 1984  A certain DIOSDADO TOL fraudulently secured a free patent over REMIGIO's property, obtained Torrens title in his name TC: DENY  Collateral attack on Torrens Title  Useless to appoint administrator in view of the claim of a 3P that he was the owner of the property -MR denied. Appealed DAYA MARIA

DIOSDADO

No intention to collaterally attack Torrens Title (merely filed for administration of properties, would attack Title in a separate proceedings )

DAYA Maria is claiming that she is an illegitimate child of absentee - so under A992, prohibited from inheriting ab intestato from the relatives of her father Even if not collateral attack on Torrens Title, cannot now file a case to assail the title as the 1yr period to file already lapsed.

WON DAYA MARIA's petition to be appointed administrator should be granted? REMANDED Case 1. NO COLLATERAL ATTACK ON A TORREN'S TITLE -merely alleged the fraudulent issuance of title as justification for appointment as administrator (there's a need to appoint an administrator to prevent the property from being usurped) -there's no attack in this proceeding on the title's validity: DAYA even alleged that she would initiate a separate action to assail the validity of the Torren's title 2. DISQUALIFICATION AS AN HEIR TO SUPPOSED GRANDPARENTS DOES NOT INHIBIT HER FROM PETITIONING FOR A DECLARATION OF ABSENCE OR TO BE APPOINTED AS AN ADMINISTRATRIX OF THE ABSENTEE'S ESTATE -It is not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for administration. -The purpose of the cited rules is the protection of the interests and property of the absentee, not of the administrator. Thus, the question of whether the administrator may inherit the property to be administered is not controlling. -What is material is whether she is one of those allowed by law to seek the declaration of absence of Remigio Tol and whether she is competent to be appointed as administratrix of his estate. 3. ISSUE AS TO OWNERSHIP SHOULD BE RESOLVED IN ANOTHER PROCEEDING. 4. DAYA MARIA could avail of other remedies if the 1-yr period already prescribed:  Reconveyance  Complaint for damages CANCELLATION OR CORR ECTION OF ENTRIES IN THE CIVIL RE GISTRY

RULE 108: Cancellation Or Correction Of Entries In The Civil Registry Section 1. Who may file petition. - Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance of the province where the corresponding civil registry is located. Section 2. Entries subject to cancellation or correction. - Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births: (b) marriage; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name. Section 3. Parties. - When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. Section 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. Section 5. Opposition. - The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto. Section 6. Expediting proceedings. - The court in which the proceeding is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. Section 7. Order. - After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotated the same in his record. Note: The provisions of Rule 108 may be deemed modified by RA 9048 allowing corrections in the Civil Register without need of judicial order in an appropriate Summary Procedure. Section 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order; except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. Appropriate Summary Proceedings vs. Appropriate Adversary Proceedings. -Clerical or typographical errors in entries of the civil register are now to be corrected and changed w/o need of a judicial order and by the city/municipal civil registrar or consul general. -so correction or changing of clerical or typographical errors removed from R108 If substantial changes and corrections in entries of the civil register: R108 applies What are substantial changes: 98 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

• Civil status • Citizenship • Nationality of party CHIAO BEN LIM V. ZOSA Summary: Petitioner filed petition to have citizenship changed in KIM JOSEPH’s birth records from “Chinese” to “Filipino”, showing evidences which would prove so. TC dismissed it, saying it’s a substantial correction not allowed unde R108. Court held that, using Republic v. Valencia, substantial errors may be corrected using R108 as long as there is a “appropriate adversary proceeding”. Role of the Court in Hearing the Petition The court's Role in hearing the petition to correct certain entries in the civil registry is to ascertain the truth about the facts recorded therein. Under our system of administering justice, truth is best ascertained or approximated by trial conducted under the adversary system. It is worth emphasizing that proceedings for the correction of erroneous entry should not be considered as establishing one's status in a legal manner conclusively beyond dispute or controversion, for as provided by Article 410 of the Civil Code, 'the books making up the civil register and all documents relating thereto…shall be prima facie evidence of the facts therein contained.' Hence, the status as corrected would not have a superior quality for evidentiary purpose. Moreover, the correction should not imply a change of status but a mere rectification of error to make the matter corrected speak for the truth. There is, therefore, no increase or diminution of substantive right, as is the basis for holding that Rule 108 would be unconstitutional if held to allow correction of more than mere harmless and innocuous clerical errors. Cancellation or Correction of Substantial Errors Allowed Provided Proceeding is Adversary Even if the subject matter of a petition is not for the correction of clerical errors of a harmless and innocuous nature, but one involving nationality or citizenship, which is indisputably substantial as well as controverted, affirmative relief cannot be granted in a proceeding summary in nature, since a right in law may be enforced and a wrong may be remedied as the appropriate remedy is used, the Court adhered to the principle that even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. Facts: -ANTONIO CHIAO BEN LIM filed a petition to have KIM JOSEPH’s citizenship changed from “Chinese” to “Filipino” in his birth records, offering the following as evidence: * an earlier birth certificate describing KIM JOSEPH as a FILIPINO * birth certificates of the siblings of KIM JOSEPH, all describing them a FILIPINOs *CA decision recognizing their grandfather as FILIPINO TC: Dismissed outright. Only clerical errors were allowed to be corrected in the summary proceeding under R108 and A412,NCC. Substantial issues like citizenship not covered. *A412, NCC: "No entry in the civil registry shall be changed or corrected without a judicial order." WON the change of citizenship from “Chinese” to “Filipino” may be allowed under R108 and A412,NCC? YES (qualified). Remand case so there would be “adversary” proceedings -court said that with REPUBLIC V. VALENCIA, substantial errors such as entries as to citizenship may be ordered changed provided there was appropriate adversary proceedings: “even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding.” -Appropriate Adversary Proceedings: proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party's case,

and where the evidence has been thoroughly weighed and considered, the suit or proceeding is 'appropriate. -PARTIES: (1) the civil registrar (2) all persons who have or claim any interest which would be affected thereby. -UPON THE FILING OF THE PETITION, IT BECOMES THE DUTY OF THE COURT TO: (1) issue an order fixing the time and place for the hearing of the petition, and (2) cause the order for hearing to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. -WHO ARE ENTITLED TO OPPOSE: (1) the civil registrar, and (2) any persons having or claiming any interest under the entry whose cancellation or correction is sought. -allowing substantial changes such as that of citizenship in records of civil registry is NOT UNCONSTITUTIONAL: Article 412 does not limit in its express terms nor by mere implication, the correction authorized by it to that of mere clerical errors. Upon a consideration of this fact, it would be reasonable and justified to rule that Article 412 contemplates of correction of erroneous entry of whatever nature, procedural safeguards having only to be provided for, as was the manifest purpose of Rule 108. …proceedings for the correction of erroneous entry should not be considered as establishing one's status in a legal manner conclusively beyond dispute or controversion, for as provided by Article 410 of the Civil Code, 'the books making up the civil register and all documents relating thereto . . . shall be prima facie evidence of the facts therein contained.' Hence, the status as corrected would not have a superior quality for evidentiary purpose. Moreover, the correction should not imply a change of status but a mere rectification of error to make the matter corrected speak for the truth. There is, therefore, no increase or diminution of substantive right, as is the basis for holding that Rule 108 would be unconstitutional if held to allow correction of more than mere harmless and innocuous clerical errors. -The Valencia ruling has in effect adopted the above-stated views insofar as it now allows changes in the birth entry regarding a person's citizenship as long as adversary proceedings are held. Where such a change is ordered, the Court will not be establishing a substantive right but only correcting or rectifying an erroneous entry in the civil registry as authorized by law. In short, Rule 108 of the Rules of Court provides only the procedure or mechanism for the proper enforcement of the substantive law embodied in Article 412 of the Civil Code and so does not violate the Constitution. DE JESUS V. ESTATE OF DECEDENT JUAN GAMBOA DIZON Summary: Though born during the marriage of their mother and her husband (therefore, legitimate children of the latter), the petitioners alleged that they are the acknowledged illegitimate children of decedent, showing a notarized document, so that they could take part in decedent’s estate. Court held that since they were born during the marriage of their mother and the father who is indicated in their birth certificates, they cannot claim illegitimacy without first impugning their legitimacy as the legitimate children of their father. Impugning Legitimacy of Child Collaterally Not Allowed The child contrary to his birth certificate as the legitimate child of the named parents cannot claim in an action for partition that he is the illegitimate child and acknowledged as such in a notarized document of a different father and therefore entitled to inherit from the estate of the latter. There must be a separate action to impugn the legitimacy that is, a direct action for the purpose. The presumption of legitimacy fixes a civil status for the child born in wedlock, and only the father, or in exceptional circumstances the latter's heirs can contest in an appropriate ACTION TO IMPUGN THE LEGITIMACY OF A CHILD BORN TO HIS WIFE. Thus, it is only when the legitimacy of a child has been successfully impugned that the paternity of the husband can be rejected.

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Facts: -DANILO DE JESUS and CAROLINA AVES DE JESUS were married, and during their marriage, the 2 petitioners JACQUELINE and JINKIE CHRISTIE were born. -However, JUAN GAMBOA DIZON acknowledged JACQUELINE and JINKIE CHRISTIE as his own illegitimate children with CAROLINA AVES DE JESUS in a notarized document -JUAN DIZON died intestate, with considerable assets consisting of shares of stocks and real properties -petitioners filed COMPLAINT FOR PARTITION w/ Inventory and Accounting -surviving spouse and legitimate children + corporations where DIZON was a SH, filed MTD: even if PARTITION complaint, it would call for change of status of petitioners from legitimate children to illegitimate children. -MTD initially denied but later on granted by TC: the declaration of heirship could only be made in a special proceeding, as they were seeking the establishment of a status or a right -relying on DIVINAGRACIA V. BELLOSILLO, petitioners filed petition alleging that the recognition as being illegitimate children of decedent, embodied in an authentic writing, is in itself sufficient to establish their status as such, does not require a separate action for judicial approval. WON the complaint for partition of the petitioners should be granted? NO Granting it would in effect impugn their legitimacy, which should be done in a separate proceeding. 1. Filiation of illegitimate children may be made by an admission of [il]legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. The due recognition of an illegitimate child in…any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required (voluntary recognition) 2. Attempt to establish their illegitimate filiation with decedent is in effect impugning their legitimate status as children born during marriage of parents: a. Children born in wedlock are presumed to be legitimate. b. Legitimacy is conclusive presumption, provided no proof of physical impossibility of access between spouses during the first 120 days of the 300 days w/c immediately precedes the birth of child c. Action to impugn legitimacy of a child can only be contested by the FATHER, or HIS HEIRS under exceptional cases. d. Only after legitimacy successfully impugned that paternity of husband can be rejected 3. DIVINAGRACIA not applicable. Not a case of legitimate children asserting to be someone else’s illegitimate children. 4. Written acknowledgment actually irrelevant in the issue of WON petitioners are indeed acknowledged illegitimate offsprings w/o impugning legitimacy. Legitimacy cannot be collaterally attacked. CABATBAT-LIM V. IAC Summary: Respondent surviving spouse and siblings of the decedent filed an action for partition of decedent’s estate, alleging that the person in possession of the bijon factory was a merely an “ampon” of the decedent, hence not a legal heir. TC and CA (and SC) held that the petitioner is not a legal heir. Court held that she is indeed not an heir, with the evidence presented putting a cloud on her evidence and that the action she initiated is inappropriate, it being an action to impugn legitimacy. Petition under Rule 108 to Correct and/or to Cancel wrong Filiation Allowed Petitioner's recourse to Article 263 of the New Civil Code [now Art.170 of the Family Code] is not welltaken. This legal provision refers to an action to impugn legitimacy. It is inapplicable to this case because this is not an action to impugn the legitimacy of a child, but an action of the private respondents to claim their inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner Violeta Cabatbat-Lim is an illegitimate child of the deceased, but that she is not the decedent's child at all. Being neither legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir of the deceased. Facts:

-Dra. ESPERANZA CABATBAT died, leaving part of her estate the CALASIAO BIJON FACTORY which is in possession of VIOLETA CABTBAT-LIM, allegedly her legitimate daughter. -her husband (PROCESO), siblings and their children filed a complaint for partition of her estate (died intestate w/o isuse) -they alleged that VIOLETA (who was in possession of the factory) was not the offspring of ESPERANZA (merely an AMPON, not legally adopted), thus, not a legal heir. This was denied by VIOLETA, arguing that she is an heir. EVIDENCE OF RESPONDENTS EVIDENCE OF VIOLETA 1) the absence of any record that Esperanza 1) Violeta Cabatbat's birth record which was filed Cabatbat was admitted in the hospital where on June 15, 1948 showing that she was born on Violeta was born and that she gave birth to Violeta May 26, 1948 at the Pangasinan Provincial on the day the latter was born; Hospital and that she is a legitimate child of the 2) the absence of the birth certificate of Violeta spouses Proceso and Esperanza Cabatbat; Cabatbat in the files of certificates of live births of 2) testimony of Proceso Cabatbat that Violeta is the Pangasinan Provincial Hospital for the years his child with the deceased Esperanza Frianeza; 1947 and 1948, when Violeta was supposedly 3) testimony of Benita Lastimosa denying that she born; delivered a child in the Pangasinan Provincial 3) certification dated March 9, 1977, of the Civil Hospital and that Violeta Cabatbat Lim is that Registry coordinator Eugenio Venal of the Office of child; the Civil Registrar General, that his office has no 4) the marriage contract of Violeta and Lim Biak birth record of Violeta Cabatbat alleged to have Chiao where Esperanza appeared as the mother of been born on May 26, 1948 or 1949 in Calasiao, the bride; Pangasinan; 5) Deed of Sale dated May 14, 1960, wherein the 4) certification dated June 16, 1977 of Romeo vendee Violeta Cabatbat, then a minor, was Gabriana, Principal II, that when Violeta studied in represented and assisted by her "mother," Dra. the Calasiao Pilot Central School, Proceso Esperanza Cabatbat; and Cabatbat and Esperanza Cabatbat were listed as 6) another Deed of Absolute Sale dated April 21, her guardians only, not as her parents; 1961, wherein Violeta Cabatbat was assisted and 5) testimony of Amparo Reside that she was in the represented by her "father," Proceso Cabatbat. Pangasinan Provincial Hospital on May 21, 1948 to watch a cousin who delivered a child there and that she became acquainted with a patient named Benita Lastimosa who gave birth on May 26, 1948 to a baby girl who grew up to be known as Violeta Cabatbat. TC: not a child by nature of spouses ESPERANZA and PROCESO CA: Affirmed TC Decision WON Court erred in ignoring the Ancient Document Rule (R132.22)? NO -Exhibit “5” of VIOLETA (supposed birth registry record: showing that she was born on May 26, 1948 at the Pangasinan Provincial Hospital, with Proceso and Esperanza as herparents) is doubtful because: >REGISTRY BOOK OF ADMISSIONS of the hospital does not show that ESPERANZA was ever admitted to the Pangasinan Provincial Hospital during the time VIOLETA was born >The RECORDS OF THE HOSPITAL does show that a certain BENITA LASTIMOSA of Ilocos Sur gave birth on May 26, 1948 to an illegitimate child named BABY GIRL LASTIMOSA >Record of Birth Certificates of Pangasinan Provincial Hospital for May 26, 1948 is that of Baby Girl Lastimosa, not Violeta Cabatbat WON Court erred in not considering A263,NCC? No. -A263 is an action to impugn legitimacy 100 | S p e c i a l P r o c e e d i n g _ D e a n B a l b a s t r o _ b y C h a M e n d o z a

-it is inapplicable to this case because it is an action of the heirs to claim their inheritance as legal heirs of the childless deceased aunt. -no claim that Violeta was an illegitimate child of the deceased, but that she is NOT A CHILD AT ALL: not legally adopted, not an acknowledged natural child, not a child by legal fiction = not an heir APPEALS IN SPECIAL P ROCEEDINGS RULE 109: Appeals in Special Proceedings Section 1. Orders or judgments from which appeals may be taken. - An interested person may appeal in special proceedings from an order or judgment rendered by a Court of First Instance or a Juvenile and Domestic Relations Court, where such order or judgment: (a) Allows or disallows a will; (b) Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; (c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; (d) Settles the account of an executor, administrator, trustee or guardian; (e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and (f) Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing unless it be an order granting or denying a motion for a new trial or for reconsideration. Section 2. Advance distribution in special proceedings. - Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of this rules. *period of appeals: 30 days. Record on appeal required When record on appeal required: *Appeal from an award of Attorney's fees filed in the probate case *Appeals in liquidation proceedings against insolvent corporation REPUBLIC VS. COURT OF APPEALS 458 SCRA 200 (2005) Facts: -Apolinaria Malinao Jomoc wanted a declaration of the presumptive death of her husband Clemente Jomoc, who has been absent for 9 years, to be able to marry again. -RTC: granted it, declared her husband presumptively dead …basis: Article 41,par2, FC: four consecutive years only required; must institute a summary proceeding for the declaration of presumptive death of absentee spouse -Republic, through OSG, sought to appeal by filing ONLY A NOTICE OF APPEAL -TC disapporved the Notice of appeal: based on Rule 41, Section 2(a), there should also be a RECORD OF APPEAL filed and served as the present case was a special proceeding -OSG filed MR: denied -OSG filed Petition for certiorari before CA: declaration of presumptive death is NOT A SPECIAL PROCEEDING or a case of multiple or separate appeals which would require a record on appeal -CA: denied Petition for certiorari: (1) OSG failed to attach CTC of assailed order (TC's denial of MR) (2) OSG failed to attach a copy of the order declaring Clemente Jomoc presumptively dead

---based on (1) and (2) alone + Rule 46.3: the case should have been dismissed! (3) Declaration of presumptive death is a SPECIAL PROCEEDING as it merely seeks for a declaration of the trial court of the presumptive death of the absentee spouse. It does not seek enforcement or protection of a right or the prevention or redress of a wrong. Neither does it involve a demand of a right or a COA that can be enforced ISSUE: WON THE DECLARATION OF PRESUMPTIVE DEATH OF AN ABSENTEE SPOUSE IS A SPECIAL PROCEEDIGN OR A SUMMARY PROCEEDING (IF NOT A SPECIAL PROCEEDING, DOES NOT NEED A RECORD ON APPEAL)

RULES OF COURT ON WHEN RECORD ON APPEAL REQUIRED Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court in disapproving petitioner’s Notice of Appeal, provides: Sec. 2. Modes of appeal. Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (Emphasis and underscoring supplied)

HELD: it is NOT A SPECIAL RPOCEEDING! RULE 72: SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES Section 1. Subject matter of special proceedings. – Rules of special proceedings are provided for in the following: a. Settlement of estate of deceased persons; b. Escheat; c. Guardianship and custody of children; d. Trustees; e. Adoption; f. Rescission and revocation of adoption; g. Hospitalization of insane persons; h. Habeas corpus; i. Change of name; j. Voluntary dissolution of corporations; k. Judicial approval of voluntary recognition of minor natural children; l. Constitution of family home; m. Declaration of absence and death; n. Cancellation or correction of entries in the civil registry. Sec. 2. Applicability of rules of civil actions. – In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. (Underscoring supplied) CIVIL CODE Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. x x x (Emphasis and underscoring supplied) FAMILY CODE Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouses had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouses was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose pf contracting the subsequent marriage under the preceding paragraph, the spouses present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of a reappearance of the absent spouse. (Emphasis and underscoring supplied)

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By the trial court’s citation of Article 41 of the Family Code, it is gathered that the petition of Apolinaria Jomoc to have her absent spouse declared presumptively dead had for its purpose her desire to contract a valid subsequent marriage. Ergo, the petition for that purpose is a "summary proceeding," following above-quoted Art. 41, paragraph 2 of the Family Code. Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the following provision, inter alia: xxx Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Codes requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. (Emphasis and underscoring supplied) x x x, there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary proceeding under the Family Code, not a special proceeding under the Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial court’s order sufficed. That the Family Code provision on repeal, Art. 254, provides as follows: Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders, proclamations rules and regulations, or parts thereof, inconsistent therewith are hereby repealed, (Emphasis and underscoring supplied), seals the case in petitioner’s favor. *IN SHORT, SINCE THE TRIAL COURT USED THE FAMILY CODE, AND THE FAMILY CODE DESIGNATES SUCH CASES AS A SUMMARY PROCEEDING AND NOT A SPECIAL PROCEEDING, IT IS NOT A SPECIAL PROCEEDING… Finally, on the alleged procedural flaw in petitioner’s petition before the appellate court. Petitioner’s failure to attach to his petition before the appellate court a copy of the trial court’s order denying its motion for reconsideration of the disapproval of its Notice of Appeal is not necessarily fatal, for the rules of procedure are not to be applied in a technical sense. Given the issue raised before it by petitioner, what the appellate court should have done was to direct petitioner to comply with the rule. As for petitioner’s failure to submit copy of the trial court’s order granting the petition for declaration of presumptive death, contrary to the appellate court’s observation that petitioner was also assailing it,

petitioner’s 8-page petition filed in said court does not so reflect, it merely having assailed the order disapproving the Notice of Appeal.

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