SPECPRO CASES NOTES

RULE 71
1. URUARTE VS CFI OF NEGROSS
OCCIDENTAL
COURT OF CFI (RTC) HAVE ORIGINAL JURISDICTION
OVER ALL MATTERS OF PROBATE WHETHER THEY DIE
TESTATE OR INTESTATE:

The matter of venue, shall be in the court

of first instance (RTC) in the province in
which he resided 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.

TESTATE PROCEEDINGS, FOR THE SETTLEMENT OF THE

ESTATE OF A DECEASED PERSON TAKE PRECEDENCE
OVER INTESTATE PROCEEDINGS FOR THE SAME
PURPOSE.

If in the course of intestate proceedings

pending before a court of first instance it
is found it that 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:
O
The administrator being required to
render final account and turn over
the estate in his possession to the
executor subsequently appointed.
Without prejudice that should the alleged
last will be rejected or is disapproved, the
proceeding shall continue as an intestacy.

WHERE INTESTATE PROCEEDINGS HAD BEEN

COMMENCED, THE PROBATE OF WILL SHOULD BE FILED
IN THE SAME COURT, EITHER IN A SEPARATE SPECIAL
PROCEEDING OR IN AN APPROPRIATE MOTION OF R
SAID PURPOSE FILED IN THE ALREADY PENDING
INTESTATE PROCEEDINGS:

This is especially true where the party

seeking the probate of the will had been
informed of had knowledge of the
pendency of the intestate proceedings.

the deceased testator, said court having,

in its capacity as a probate court,
jurisdiction to declare who are the heirs of
the deceased testator and whether or not
a particular party is or should be declared
his acknowledged natural child.
WAIVER OF IMPROPER VENUE:
Wrong venue is merely waivable
procedural defect and such waiver may
occur by laches.
2. BERNARDO VS COURT OF APPEALS
EXCEPTION ON JURISDICTION OF PROBATE COURT
TO RULE ON THE ISSUE OF OWNERSHIP

DETERMINATION BY PROBATE COURT OF QUESTION AS

TO TITLE TO PROPERTY: GENERAL RULE AND
EXCEPTION:
As a general rule, question as to title to
property cannot be passed upon on
testate or intestate proceedings,"
EXCEPTION
Where one of the parties prays merely for
the inclusion or exclusion from the
inventory of the property, in which case
the probate court may pass provisionally
upon the question without prejudice to its
final determination in a separate action.
However, when the parties interested are
all heirs of the deceased, it is optional to
them to submit to the probate court a
question as to title to property, and when
so submitted, said probate court may
definitely pass judgment thereon
And that with the consent of the parties,
matters affecting property under judicial
administration may be taken cognizance
of by the court in the course of intestate
proceeding, provided interests of third
persons are not prejudiced
PROBATE COURT VESTED WITH JURISDICTION TO TRY
CONTROVERSIES BETWEEN HEIRS REGARDING
OWNERSHIP OF PROPERTIES BELONGING TO DECEASED:

QUESTION OF ACKNOWLEDGMENT AS A NATURAL CHILD

OF TESTATOR MAY BE PRESENTED TO PROBATE COURT:

A party claiming to be an acknowledge

natural child of testator is entitled to
intervene Special Proceeding if it is still
open, or to ask for its reopening if it has
already been closed, so as to be able to
submit for determination the question of
his acknowledgment as natural child of

The purpose of an administration

proceeding is the liquidation of the estate
and distribution of the residue among the
heirs and legatees.
Liquidation means determination of all the
assets of the estate and payment of all the
debts and expenses.

SPECPRO CASES NOTES

PROBATE COURT VESTED WITH JURISDICTION TO

enter into an agreement for distribution in

a manner and upon a plan different from
those provided by law.

DETERMINE IF PROPERTIES BELONG TO CONJUGAL

PARTNERSHIP:

The probate court has to liquidate the

conjugal partnership in order to determine
the estate of the decedent which is to
distribute among his heirs.

OWNERSHIP: WAIVER BY A PARTY WHO RAISES AN

OBJECTION:
Where a party by presenting their project
of partition including therein the disputed
lands, puts in issue the question of
ownership of the properties which is
well within the competence of the probate
court and just because of an opposition
thereto, they cannot thereafter withdraw
either their appearance or the issue from
the jurisdiction of the court.
RULE 74
1. HERNANDEZ VS ANDAL (MARCH 29, 1947)
SECTION 1 OF RULE 74, NOT CONSTITUTIVE BUT
MERELY EVIDENTIAL OR PARTITION.
Section 1 of Rule 74 contains no such
express or clear declaration that the
required public instruments is to be
constitutive of a contract of partition or an
inherent element of its effectiveness as
between the parties.
And this Court had no apparent reason, in
adopting this rule, to make the efficacy of
a partition as between the parties
dependent on the execution of a public
instrument and its registration.
THE REQUIREMENT THAT A PARTITION BE PUT IN
A PUBLIC DOCUMENT AND REGISTERED HAS FOR
ITS PURPOSE THE PROTECTION OF CREDITORS
AND AT THE SAME TIME THE PROTECTION OF THE
HEIRS THEMSELVES AGAINST TARDY CLAIMS:

Note that the section speaks of debts and

creditors.
The object of registration is to serve as
constructive notice, and this means notice
to others.
It must follow that the intrinsic validity
of partition not executed with the
prescribed formalities does not come into
play when there are no creditors or the
rights of creditors are not affected.
No rights of creditors being involved, it is
competent for the heirs of an estate to

FOR THIS COURT TO PRESCRIBE WHAT IS TO BE A

BINDING AGREEMENT BETWEEN CO-HEIRS IN THE
SETTLEMENT OF THEIR PRIVATE AFFAIRS WHICH IN NO
WAY AFFECT THE RIGHTS OF THIRD PARTIES WOULD BE
TO TRANSCENDS ITS RULE-MAKING POWER.

2. TORRES VS TORRES 10 SCRA 185

(J) WHERE THE PARTIES ALREADY ENTERED INTO AN
EXTRAJUDICIAL SETTLEMENT, NO JUDICIAL SETTLEMENT
MAY BE OPENED, THE REMEDY IS THAT IN SECTION 1
WHICH STATES THAT SHOULD THEY DISAGREE,
THEY MAY DO SO IN AN ORDINARY ACTION OF
PARTITION. JUDICIAL SETTLEMENT MAY ONLY BE
OPENED IF THERE IS A GOOD REASON SUCH AS
SECTION 4.
ESTATE OF DECEASED PERSONS: SUMMARY
SETTLEMENT; NO NECESSITY FOR INSTITUTION OF
SPECIAL PROCEEDING:

Where the decedent left no debts and

heirs or legatees are all of age, as in this
case, there is no necessity for the
institution of special proceedings and the
appointment of an administrator for the
settlement of the estate, because the
same can be effected either extra
judicially or through an ordinary action for
partition.

If there is an actual necessity for court

intervention, in view of the heirs' failure to
reach an agreement as to how the estate
would be divided physically, they have still
the remedy of an ordinary action for
partition.

UNVERIFIED ALLEGATION THAT ESTATE HAS

EXISTING DEBT OR OTHER PROPERTIES IN THE
POSSESSION OF ONE OF THE HEIRS ARE NOT
SUFFICIENT CAUSE FOR ADMINISTRATION
PROCEEDINGS:

FACT: the heirs had already entered into

extrajudicial partition and settlement of the
estate, on the representation that there
existed no debts, but one alleged heir petition

SPECPRO CASES NOTES

to place the estate under administration

predicate mainly on alleged inability of the
heirs to agree on a physical division of the
propertied:

persons who did not take part therein or

had no notice or knowledge thereof.
THERE CANNOT BE ANY DOUBT THAT THOSE WHO
TOOK PART OR HAD KNOWLEDGE OF THE

HELD: The bare allegation that, "the estate

has an existing debt from third persons"
cannot be considered as concise statement to
constitute a cause of action. Nor does the
unverified statement that there are other
properties not included in the deed of
extrajudicial partition in the possession of one
of the heirs, justify the institution of an
administration proceeding because the same
questions that may arise as to them, viz, the
title there and their partition, if proven to
belong to the intestate, can be properly and
expeditiously litigated in an ordinary action of
partition.

EXTRAJUDICIAL SETTLEMENT ARE BOUND

THEREBY:

If they claim to have been in any manner

deprived of their lawful right or share in
the estate by the extrajudicial settlement,
they may demand their rights or interest
within the period of two years, and both
the distributes and estate would be liable
to them for such rights or interest.

Evidently, they are the persons in

accordance with the provision, may seek
to remedy, the prejudice to their rights
within the two-year period.

But as to those who did not take part in

the settlement nor had no notice of the
death of the decedent or of the
settlement, there is no direct or express
provision and it is unreasonable and
unjust that they also be required to
assert their claims within the period of two
years.

To extend the effects of the settlement to

them, to those who did not take part or
had no knowledge thereof, without any
express legal provision to that effect,
would be violative of the fundamental
right to due process of law.

3. SAMPILO AND SALACUP VS COURT OF

APPEALS AND SINOPERA
103 P 70
(J) PRESCRIPTION DOES NOT APPLY TO A PERSON WHO
DID NOT PARTICIPATE TO THE SETTLEMENT. NO
CONSTRUCTIVE KNOWLEDGE BECAUSE IT IS NOTICE
AFTER THE FACT.

EXTRAJUDICIAL SETTLEMENT: PERSONS WHO MAY

SEEK REMEDY WITHIN TWO-YEAR PERIOD; TWO
SIGNIFICANT PROVISIONS IN

SECTIONS 1 AND 4

OF

RULE 74:

In Section 1, it is required that if there are

two or more heirs, both or all of them
should take part in the extrajudicial
settlement.

By the title of Section 4, the

"distributees and estate" are indicates
the persons to answer for rights violated
by the extrajudicial settlement.

NO mention is made expressly of the

effect of the extrajudicial settlement on

THIRD PERSON NOT AFFECTED:

The procedure outlined in Section 1 of

Rule 74 of extrajudicial settlement, or
by affidavit, is an ex parte proceeding.

It cannot by any reason or logic be

contended that such settlement or
distribution would affect third persons who

SPECPRO CASES NOTES

had no knowledge either of the death of

the decedent or of the extrajudicial
settlement or affidavit, especially as no
mention of such effect is made, either
directly or by implication.

PERSON WHO ARE BARRED AFTER

EXPIRATION OF TWO YEARS:

cancelled at the instance of the transferee

of the land involved
EVIDENCE: GOOD FAITH:
Where the buyer of the man was an
enlisted man in the Philippine
constabulary and seldom come home to
visit his relatives, a man of such a
situation cannot be expected to know the
relatives and children of his vendor even if
they are town mates. Fraud cannot be
presumed. It must be established by clear
and sufficient evidence.

THE PROVISIONS OF SECTION 4 OF RULE 74, BARRING

DISTRIBUTEES OR HEIRS FROM OBJECTING TO AN
EXTRAJUDICIAL PARTITION AFTER THE EXPIRATION OF
TWO YEARS FROM SUCH EXTRAJUDICIAL PARTITION, IS

5. SAN RUIZ V. SAN RUIZ 514 SCRS 294

(J) ON THE MEANING OF RESIDENCE AS DISTINGUISHED

APPLICABLE ONLY

1. To persons who have participated or taken

part or had notice of the extrajudicial
partition, and, in addition,

UNDER SECTION 1, RULE 73 OF THE RULES OF

COURT, THE PETITION FOR LETTERS OF
ADMINISTRATION OF THE ESTATE OF DECEASED

2. When the provisions of Section 1 of Rule

74 have been strictly complied with, i.e.,
that all the persons or heirs of the
decedent have taken part in the
extrajudicial settlement or are represented
by themselves or through guardians.

SECTION 4 RULE 74 IS NOT A STATUTE OF

LIMITATION:
It is only a bar of action parties who had
taken part in the extrajudicial proceeding,
but not against third persons not parties
thereto.
4. CARION VS AGCAOILI, 1 S 521
(J)PRESCRIPTION SUSTAINED; THE LIEN OVER THE REAL
PROPERTY HAD EXPIRED.
COMPARED TO SAMPILO: AGCAOILI IS A BUYER IN
GOOD FAITH. IN SAMPILO, THE PARTIES ARE COUSINS.
REQUISITES FOR 2 YEARS TO APPLY
SETTLEMENT OF DECEDENTS ESTATE;
SUMMARY SETTLEMENT; LIEN FOR A
PERIOD OF TWO YEARS:
The lien, establishedin case of summary
settlement of a decedents estate is
effective only for a period of two years.
After the two-year period, such lien
becomes functus oficio and it may be

SHOULD BE FILED IN THE

OF THE PROVINCE

REGIONAL TRIAL COURT

"IN WHICH HE RESIDES AT THE

TIME OF HIS DEATH."

In the application of venue statutes and

rules Section 1, Rule 73 of the Revised
Rules of Court is of such nature
residence rather than domicile is the
significant factor.

FOR PURPOSES OF FIXING VENUE UNDER THE

RULES OF COURT, THE "RESIDENCE" OF A
PERSON IS HIS PERSONAL, ACTUAL OR PHYSICAL
HABITATION, OR ACTUAL RESIDENCE OR PLACE OF
ABODE, WHICH MAY NOT NECESSARILY BE HIS
LEGAL RESIDENCE OR DOMICILE PROVIDED HE
RESIDES THEREIN WITH CONTINUITY AND
CONSISTENCY.

It signifies physical presence in a place

and actual stay thereat
It is possible that a person may have his
residence in one place and domicile in
another.

6. CUA V. VARGAS 506 SCRA 374

(J) PUBLICATION OF EXTRAJUDICIAL SETTLEMENT
EXTRAJUDICIAL SETTLEMENT OF ESTATE: THE
PROCEDURE OUTLINED IN SECTION 1 OF RULE

74 IS AN
4

SPECPRO CASES NOTES

EX PARTE PROCEEDINGPERSONS 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;

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.

THE HEIRS WHO ACTUALLY PARTICIPATED IN THE

EXECUTION OF THE EXTRAJUDICIAL SETTLEMENTS,
WHICH INCLUDED THE SALE OF THEIR PRO
INDIVISO SHARES IN THE SUBJECT PROPERTY, ARE
BOUND BY THE SAME:

Nevertheless, respondents are given the

right to redeem these shares pursuant to
Article 1088 of the Civil Code.

THE RIGHT TO REDEEM WAS NEVER LOST

ACQUIRED IN SOME OTHER MANNER BY THE

REDEMPTIONER NOTWITHSTANDING.

THE OBLIGATION TO SERVE WRITTEN NOTICE DEVOLVES

UPON THE VENDOR CO-HEIRS BECAUSE THE LATTER
ARE IN THE BEST POSITION TO KNOW THE OTHER COOWNERS WHO, UNDER THE LAW, MUST BE NOTIFIED OF
THE SALE:

7. CRISTOBAL-CRUZ V. CRISTOBAL, 498

SCRA 37
(J) ON EXTRAJUDICIAL PARTITION WHERE SOME HEIRS
WERE UNLAWFULLY DEPRIVED OF THEIR SHARE:
REMEDIES: (1) 2 YEARS (2) ANNULMENT BASED ON
FRAUD 4 YEARS (3) ACTION FOR RECONVEYANCE; FOR
PROPERTY HELD IN TRUST, POSSESSION WILL RIPEN
INTO OWNERSHIP AFTER 10 YEARS IF THERE IS CLAIM
OF OWNERSHIP AND ACTUAL POSSESSION.
EXTRAJUDICIAL PARTITION OF ESTATE:
74 OF THE RULES OF COURT:

BECAUSE RESPONDENTS WERE NEVER NOTIFIED

IN WRITING OF THE ACTUAL SALE BY THEIR COHEIRS:

There is a need for written notice to

start the period of redemption, thus:
o Should any of the heirs sell his
hereditary rights to a stranger
before the partition, any or all of
the co-heirs may be subrogated to
the rights of the purchaser by
reimbursing him for the price of the
sale, provided they do so within
the period of one month from
the time they were notified in
writing of the sale by the
vendor.

THE PERIOD OF ONE MONTH SHALL BE RECKONED

FROM THE TIME THAT A CO-HEIR IS NOTIFIED IN
WRITING BY THE VENDOR OF THE ACTUAL SALE.
WRITTEN NOTICE IS INDISPENSABLE AND
MANDATORY, ACTUAL KNOWLEDGE OF THE SALE

It cannot be counted from the time

advance notice is given of an impending
or contemplated sale.
The law gives the co-heir thirty days from
the time written notice of the actual sale
within which to make up his or her mind
and decide to repurchase or effect the
redemption.

SECTION 1, RULE

Without the participation of all persons

involved in the proceedings, the
extrajudicial settlement is not binding on
said persons.

EXTRAJUDICIAL PARTITION OF ESTATE: PRESCRIPTION:

THE ACTION FOR PARTITION IS IMPRESCRIPTIBLE:

Article 494 of the Civil Code explicitly

declares: "No prescription shall lie in favor
of a co-owner or co-heirs as long as he
expressly or impliedly recognizes the coownership."

SUPPLEMENTAL CASES TO RULE 74

1. CUENCO VS COURT OF APPEALS, 53
SCRA 360
THE RESIDENCE OF THE DECEASED OR THE
LOCATION OF HIS ESTATE IS NOT AN ELEMENT OF
JURISDICTION OVER THE SUBJECT MATTER BUT
MERELY OF VENUE:

SPECPRO CASES NOTES

sitting, or if he is an inhabitant of a foreign

country, his having left his estate in such
province."

THE COURT FIRST TAKING COGNIZANCE OF

SETTLEMENT OF THE ESTATE OF A DECEDENT:

The Rule precisely and deliberately

provides that "the court first taking
cognizance of the settlement of the
estate of a decedent, shall exercise
jurisdiction to the exclusion of all other
courts."
The court with whom the petition is first
filed, must also first take cognizance of
the settlement of the estate in order
to exercise jurisdiction over it to the
exclusion of all other courts.

2. INTESTATE ESTATE OF MERCADO VS

MAGTIBAY, 96 PHIL 383
WHEN PARTITION PROCEEDING IS
PROPER INSTEAD OF ADMINSTRAION
PROCEEDING:
WHERE THE ESTATE HAS NO DEBTS, RECOURSE MAY BE
HAD TO AN ADMINISTRATION PROCEEDING ONLY IF THE
HEIRS HAVE GOOD REASONS FOR NOT RESORTING TO
AN ACTION FOR PARTITION:

Conversely, such court, may upon learning

that a petition for probate of the
decedent's last will has been presented in
another court where the decedent
obviously had his conjugal domicile and
resided with his surviving widow and their
minor children, and that the allegation of
the intestate petition before it stating that
the decedent died intestate may be
actually false, may decline to take
cognizance of the petition and hold the
petition before it in abeyance, and instead
defer to the second court which has before
it the petition for probate of the
decedent's alleged last will.

Testate proceedings take precedence over

intestate proceedings:
Opposition to jurisdiction of trial court in
settlement proceedings should be by
appeal except when want or jurisdiction
appears on the record;
The proceedings for settlement of estate
will not be annulled even if court had
improper venue;
Supreme Court may order change of
venue under its supervisory authority over
inferior courts.
JURISDICTIONAL FACTS:
1. The death of the decedent,
2. His residence at the time of his death in
the province where the probate court is

Where partition is possible, either in or out

of court, the estate should not be
burdened with an administration
proceeding without good and compelling
reasons.
The institution of administration
proceeding cannot be justified on the
ground that the purpose is to avoid a
multiplicity f suits if the same object could
be achieved in an action for partition.

3. DURAN VS DURAN, 20 SCRA 379

JUDICIAL APPROVAL IS NOT REQUIRED FOR
ASSIGNMENT OF HEREDITARY SHARE BEFORE THE
INSTITUTION OF INTESTATE PROCEEDINGS:

Until the assignment is annulled, the

assigning heir is bound by it and he has no
more interest in the decedents estate:

A LEGAL HEIR, WHO IN A PUBLIC INSTRUMENT

ASSIGNED AND RENOUNCED HIS HEREDITARY
RIGHTS IN FAVOR OF THE DECEDENTS WIDOW, IS
NOT AN INTERESTED PARTY WHO CAN
INSTITUTE INTESTATE PROCEEDINGS AND
PETITION FOR THE ISSUANCE OF LETTERS OF
ADMINISTRATION:

The assignment pendente lite by one

heir of his hereditary share to another
coheir requires the approval of the probate
court which has jurisdiction;
Since the courts approval is not deemed
final until the estate is closed, the
assigning heir remains an interested
person in the proceeding even after the
said approval has been given.

4. GAN VS YAP, 104 PHIL 509

EXECUTION AND CONTENTS OF WILL, HOW
PROVED:

SPECPRO CASES NOTES

The execution and the contents of a lost or

destroyed holographic will may not be
proved by the bare testimony of witnesses
who have seen and/or read such will.
The will itself must be presented;
otherwise, it shall produce no effect.
The law regards the document itself as
material proof of authenticity.
5. RODELAS VS ARANZA, 119 SCRA 16
ADMISSIBILITY OF PHOTOSTATIC OR XEROX COPY
OF A LOST WILL OR DESTROYED WILL:
If the holographic will has been lost or
destroyed and no other copy is available,
the will cannot be probated because the
best and only evidence is the handwriting
of the testator in said will.
It is necessary that there be a comparison
between sample handwritten statements
of the testator and the handwritten will.
But, a photostatic copy or xerox copy of
the holographic will may be allowed
because comparison can be made with the
standard writings of the testator.
6. BALANAY, JR. VS MARTINEZ, 64 S 452

8. NEPOMUCENO VS COURT OF APPEALS

139 SCRA 206
THE FACT THAT THE PROBATE COURT DECLARED A
DEVISE MADE IN A WILL NULL AND VOID WILL BE
SUSTAINED WHERE NO USEFUL PURPOSE WILL BE
SERVED BY REQUIRING THE FILING OF A
SEPARATED CIVIL ACTION AND RESTRICTING THE
COURT ONLY TO THE ISSUE OF EXTRINSIC
VALIDITY

The probate of a will might become an idle

ceremony if on its face it appears to be
intrinsically void.
Where practical considerations demands
that the intrinsic validity of the will be
passed upon, even before it is probated,
the court should meet the issue (Nuguid
vs Nuguid, 17 SCRA 44)

RULE 76 ALLOWANCE OR DISALLOWANCE

OF WILL
1. DE GUZMAN V. JUDGE ANGELES G.R.
NO. 78590,
On publication

WHERE PRACTICAL CONSIDERATIONS DEMAND

THAT THE INTRINSIC VALIDITY OF THE WILL BE
PASSED UPON, EVEN BEFORE PROBATED, THE
COURT SHOULD MEET THE ISSUE:

A NOTICE TO CREDITORS IS NOT IN ORDER IF

ONLY A SPECIAL ADMINISTRATOR HAS BEEN
APPOINTED:

Section 1, Rule 86 (Claims against Estate)

contemplates the appointment of an
executor or regular administrator and not
that of a special administrator.
Court employee should not be appointed
as administrator of decedents title

7. MANINANG VS COURT OF APPEALS

114 S 478
PROBATE OF A WILL IS MANDATORY: Unless
the will is probated and notice thereof
given to the whole world, the right of a
person to dispose of his property by Will
may be rendered nugatory.
General Rule: Probate of will does not look
into its intrinsic validity
Will should not be denied legality based on
dubious grounds

REQUIREMENT BEFORE THE COURT MAY ACQUIRE

JURISDICTION OVER THE CASE FOR THE PROBATE
OF A WILL AND ADMINISTRATION OR PROPERTIES:

Before a court may acquire jurisdiction

over the case for the probate of a will and
the administration of the properties left by
a deceased person, the application must
allege the residence of the deceased and
other indispensable facts or circumstances
and that the applicant is the executor
named in the will or is the person who had
custody of the will to be probated

NOTICE THROUGH PUBLICATION OF THE PETITION

FOR THE SETTLEMENT OF ESTATE OF A DECEASED
PERSON IS JURISDICTIONAL:

SPECPRO CASES NOTES

The probate court must cause notice

through publication of the petition after it
receives the same.

The purpose of this notice is to bring all

the interested persons within the court's
jurisdiction so that the judgment therein
becomes binding on all the world.

Where no notice has been given to

persons believed to have an interest in
the estate of the deceased person; the
proceeding for the settlement of the
estate is void and should be annulled.
The requirement as to notice is essential
to the validity of the proceeding in that no
person may be deprived of his right to
property without due process of law.
Notice through publication of the petition
for the settlement of the estate of a
deceased person is jurisdictional, the
absence of which makes court orders
affecting other persons, subsequent to the
petition void and subject to annulment.

SPECIAL ADMINISTRATOR: THE REPRESENTATIVE OF

DECEDENT APPOINTED BY THE PROBATE COURT TO
CARE FOR AND PRESERVE HIS ESTATE UNTIL AN
EXECUTOR OR GENERAL ADMINISTRATOR IS APPOINTED.

Before acting on the motion to appoint

a special administrator, the probate
court should give proper notice to all
persons interested in the preservation
of the estate.

2. VANO VS VDA DE GARCES 95 PHIL 333

(J) FORGERY MAY BE RAISED EVEN IF NOT PLEADED; IN
THE PROBATE OF THE WILL IT IS NOT THE PARTIES
WHICH RAISE THE ISSUES BUT THE LAW ITSELF:
ISSUE IN CONTESTED WILLS; ISSUE IS FIXED BY
RULES OF COURT; ISSUE MAY NOT BE VARIED BY
PLEADINGS:

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.
AN OPPOSITOR OBJECTING TO THE PROBATE OF
THE WILL ON ONE OR TWO SPECIFIC GROUNDS
MAY, DURING THE HEARING ADD TO THE
GROUNDS AND SUBMIT EVIDENCE IN SUPPORT OF
THE SAME:

An oppositor may add other grounds

and submit evidence in support
thereof;

3. DE ARROYO V. ABAY 4 SCRA 555

(J) DISMISSAL FOR FAILURE TO PROSECUTE WILL NOT
BAR ANOTHER PETITION FOR PROBATE

DISMISSAL OF PETITION FOR PROBATE OF WILL FOR

FAILURE TO APPEAR; NOT ADJUDICATION ON MERITS:
THE PROBATE OF A WILL MAY BE THE CONCERN
OF ONE PERSON OR SEVERAL PERSONS AS
USUALLY IS THE CASE:

The fault of one such person may be

imputed to him alone who must suffer
the consequences of his act. Such fault
cannot be imputed to other persons;

Other parties interested in the probate

of a will for transmission of property
rights to them should not be prejudiced
by the act or fault of another and
because it is the policy of the State to
have such last wills and testaments
submitted to Court for their probate or
legalization, as shown or indicated or
evidenced by or in the punishment
provided for persons who are in
possession of last wills and testaments
of deceased persons and fail or neglect
to deliver or present them to Court for
probate or to deliver them to the
executor named in the will within
twenty days after they know of the
death of the testators or within the
same period of time after they know
that they were named executors of the
will.

Before the probate court can allow the

will it must be satisfied upon proof

SPECPRO CASES NOTES

4. FLORES V. MAGSUSI APRIL 28, 1959

(J) REASON FOR DE AROYO: BECAUSE OF STRONG

The Rules of Court prescribes the order of

preference in the issuance of letters of
administration, categorically seeks out the
surviving spouse, the next of kin and
the creditors, and requires that
sequence to be observed in appointing an
administrator.

It would be a grave abuse of discretion for

the probate court to imperiously set aside
and insouciantly ignore that directive
without any valid and sufficient reason
therefor.

PUBLIC POLICY IN THE LAW

RULE 77
1. SUNTAY VS SUNTAY, 95 PHIL 500
(J) 3 THINGS TO BE PROVEN DURING RE-PROBATE;
READ MEJARES V. RENADA
SIR ESCOLIN: RULING HAS NO BASIS
Assignment of interest in the estate, not a
bar to probate of a lost or foreign will.
The validity and legality of such
assignments cannot be threshed out in
the probate proceeding which is
concerned only with the probate of the
will.
Probate of a will is proceeding in rem;
notice to all parties essential for its
validity.
The lack of objection to the probate of a
lost will does not relieve the proponent
thereof or the party interested in its
probate from establishing its due
execution and proving clearly and
distinctly the provision thereof by at least
(three) credible witnesses.

IN THE APPOINTMENT OF THE ADMINISTRATOR OF

THE ESTATE OF A DECEASED PERSON, THE
PRINCIPAL CONSIDERATION RECKONED WITH IS
THE INTEREST IN THE SAID ESTATE OF THE ONE
TO BE APPOINTED AS ADMINISTRATOR:

The widow would have the right of

succession over a portion of the exclusive
property of the decedent, aside from her
share in the conjugal partnership.

2. FLUMER VS HIX, 54 PHIL 610

WHERE IT IS DESIRED TO ESTABLISH THE

For such reason, she would have as much,

if not more, interest in administering the
entire estate correctly than any other next
of kin.

On this ground alone, the widow of a

deceased has every right and is very
much entitled to the administration of the
estate of her husband since one who has
greater interest in the estate is preferred
to another who has less.

EXECUTION OF A WILL IN ANOTHER JURISDICTION,

IT IS NECESSARY TO PROVE THAT THE TESTATOR
HAD HIS DOMICILE IN THAT JURISDICTION AND
NOT IN THE PHILIPPINES:

The law of a foreign jurisdiction do not

prove themselves in our courts.
The courts of the Philippines are not
authorizes to take judicial notice of the
laws of the various States of the American
Union.
Such laws must be proved by facts.
The due execution of a will alleged to
have been executed in another
jurisdiction must be established.

RULE 78
1. GABRIEL VS COURT OF APPEALS, 212
SCRA 413
ADMINISTRATION OF DECEDENT ESTATE: ORDER
OF PREFERENCE IN THE ISSUANCE OF LETTERS OF
ADMINISTRATION TO BE OBSERVED IN
APPOINTING AN ADMINISTRATOR:

FAILURE TO APPLY FOR LETTERS OF

ADMINISTRATION FOR THIRTY DAYS AFTER
DECEDENTS DEATH IS NOT SUFFICIENT TO
EXCLUDE THE WIDOW FROM THE ADMINISTRATION
OF THE ESTATE OF HER HUSBAND:

1. There must be a very strong case to justify

the exclusion of the widow
THE ORDER OF PREFERENCE IS NOT
ABSOLUTE AND MAY BE DISREGARDED

SPECPRO CASES NOTES

FOR VALID CAUSE AS SO MAY THE 30DAY PERIOD BE LIKEWISE WAIVED:

2. The letters of administration may be
granted to one or more of the principal
creditor.

THE ALLEGATION THAT A PETITIONER SEEKING

DETERMINATION OF A PERSONS SUITABILITY FOR

A motion to dismiss may lie not on the

basis of lack of jurisdiction on the part of
the court, but rather on the ground of
lack of legal capacity to institute the
proceedings.

The jurisdictional facts alluded to are: the

death of the testator, his residence at the
time of his death in the province where
the probate court is sitting or, if he is an
inhabitant of a foreign country, his having
left his estate in such province.

If the intestate was not an inhabitant of

the state at the time of his death, and left
no assets in the state, and none came into
it afterwards, no jurisdiction is conferred
on the court to grant letters of
administration in any county.

LETTERS OF ADMINISTRATION IS AN INTERESTED

PERSON DOES NOT FALL WITHIN THE
ENUMERATION OF JURISDICTIONAL FACTS:

THE OFFICE OF JUDICIAL ADMINISTRATOR REST IN

THE SOUND JUDGMENT OF THE COURT
EXERCISING THE POWER OF APPOINTMENT:

3. Court cannot be interfered with on appeal

unless the court is clearly in error.
THE REMOVAL OF AN ADMINISTRATOR DOES NOT
LIE ON THE WHIM, CAPRICES AND DICTATES OF
THE HEIRS OR BENEFICIARIES OF THE ESTATE:

CO-ADMINISTRATOR; VARIOUS REASONS:

1. To have the benefit of their judgment and
perhaps at all times to have different
interests represented;
2. Where justice and equity demand that
opposing parties or factions be
represented in the management of the
estate of the deceased; 25
3. Where the estate is large or, from any
cause, an intricate and perplexing one to
settle;
4. To have all interested persons satisfied
and the representatives to work in
harmony for the best interests of the
estate; and
5. When a person entitled to the
administration of an estate desires to have
another competent person associated with
him in the office.

INTERESTED PARTY: 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.

IF A MOTION TO DISMISS IS NOT FILED, ANY OF

THE GROUNDS AVAILABLE FOR SUCH MOTION
EXCEPT FOR IMPROPER VENUE MAY BE PLEADED
AS AN AFFIRMATIVE DEFENSE AND A
PRELIMINARY HEARING MAY BE HAD THEREON:

RULE 79
1. PILIPINAS SHELL PETROLEUM
CORPORATION VS DUMLAO, 206 SCRA
40

Excepted from the above rules are the

following grounds: (a) failure to state a
cause of action which may be alleged in a
later pleading if one is permitted, or by a
motion for judgment on the pleadings, or
at the trial on the merits; and (b) lack of
jurisdiction over the subject matter of the
action, subject to the exception as
hereinafter discussed.

10

SPECPRO CASES NOTES

JURISDICTION MAY BE RAISED AT ANY

STAGE OF THE PROCEEDINGS:

However, a party who has affirmed and

invoked it in a particular matter to secure
an affirmative relief cannot be allowed to
afterwards deny that same jurisdiction to
escape penalty.

RULE 82

DISCOVERY OF WILL AFTER APPOINTMENT OF

ADMINISTRATOR; EFFECT OF:
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.
APPOINTMENT OF ADMINISTRATOR; SURVIVING
SPOUSE IS NOT A STRANGER TO THE ESTATE OF
THE DECEASED:

1. DEPARENO VS ARANZARENO, 116

SCRA 157
OUSTER OF A PERSON OF THE RIGHT TO
INTERVENE IN INTESTATE PROCEEDINGS AS AN
HEIR IS NOT A GROUND FOR REVOCATION OF
AUTHORITY TO ACT AS AN ADMINISTRATOR OF
THE ESTATE:

Having been appointed regular

administrator of the intestate estate, an
administrator may be removed from office
but only for a cause or causes provided by
law.

2. ADVINCULA VS TEODORO, SR., 99

PHIL 413
EXECUTOR NAMED IN THE WILL WHEN MAY BE
APPOINTED ADMINISTRATOR:

3. MENDIOLA VS COURT OF APPEALS,

190 SCRA 421

THE REMOVAL OF AN ADMINISTRATOR UNDER

SECTION 2 OF RULE 82 LIES WITHIN THE
DISCRETION OF THE COURT APPOINTING HIM:

The removal must be in accordance with

the provisions of Section 2, Rule 82 of the
Rules of Court;

The determination of a person's suitability

for the office of judicial administrator
rests, to a great extent, in the sound
judgment of the court exercising the
power of appointment and said judgment
is not to be interfered with on appeal
unless the said court is clearly in error.

The law on removal is found in Rule 82,

Section 2, of the Rules of Court

AN ADMINISTRATOR DOES NOT HAVE TO

BE AN HEIR:
He can be a stranger to the deceased.

The provision of the Rules of Court cannot

be enforced until after said document has
been allowed to probate, for the Rules
provides: 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.

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.

4. GONZALES VS AGUINALDO, 190 SCRA

112
The principal consideration is the
appointment of an administrator of the
estate of a deceased person is the interest
in said estate of the one to be appointed
as administrator.

11

SPECPRO CASES NOTES

To justify removal of an administrator,

there must be evidence of an act or
omission on the part of the administrator
not conformable to or in disregard of the
rules or the orders of the court.
Temporary residence outside of the state
does not disqualify one to be an
administrator of the estate.
Removal of an administrator does not lie
on the whims, caprices and dictates of the
heirs or beneficiaries of the estate, or on
the belief of the court that it would result
in orderly and efficient administration.

5. GABRIEL VS COURT OF APPEALS

(SUPRA)
6. SANTERO VS CFI OF CAVITE, 153
SCRA 728
Spouse interpreted to be the legitimate
spouse, not common-law spouse.

CONDITIONS BEFORE DISTRIBUTION OF ESTATE

PROPERTIES CAN BE MADE: DISTRIBUTION CAN
ONLY BE MADE:
(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.

7. ESTATEOF HILARIO M. RUIZ VS

COURT OF APPEALS, 252 SCRA 541

ALLOWANCES FOR SUPPORT UNDER

SECTION 3

RULE 83 SHOULD NOT BE LIMITED TO THE

MINOR OR INCAPACITATED CHILDREN OF THE
DECEASED:
OF

Article 188 of the Civil Code of the

Philippines, the substantive law in force at
the time of the testators death, provides
that during the liquidation of the conjugal
partnership, the deceaseds legitimate
spouse and children, regardless of their
age, civil status or gainful employment,
are 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.

Grandchildren are not entitled to

provisional support from the funds of
the decedents estate.

The estate tax is one of those

obligations that must be paid
before distribution of the estate. If
not yet paid, the rule requires that
the distributees post a bond or
make such provisions as to meet
the said tax obligation in proportion
to their respective shares in the
inheritance

THE PROBATE OF A WILL IS CONCLUSIVE AS TO ITS DUE

EXECUTION AND EXTRINSIC VALIDITY AND SETTLES
ONLY THE QUESTION OF WHETHER THE TESTATOR,
BEING OF SOUND MIND, FREELY EXECUTED IT IN
ACCORDANCE WITH THE FORMALITIES PRESCRIBED BY
LAW:

Questions as to the intrinsic validity and

efficacy of the provisions of the will, the
legality of any devise or legacy may be
raised even after the will has been
authenticated.

RULE 84 SEC. 3. AN EXECUTOR OR ADMINISTRATOR

SHALL HAVE THE RIGHT TO THE POSSESSION AND

12

SPECPRO CASES NOTES

MANAGEMENT OF THE REAL AS WELL AS THE PERSONAL

COUNTERCLAIM; NECESSARY EXPENSE;

ESTATE OF THE DECEASED SO LONG AS IT IS

COMPULSORY COUNTERCLAIM NOT SET UP

BARRED:

NECESSARY FOR THE PAYMENT OF THE DEBTS

AND EXPENSES FOR ADMINISTRATION.

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.

HEIRS RIGHT OF OWNERSHIP OVER THE

PROPERTIES OF A PARENT IS MERELY INCHOATE

Claim for necessary expense as arising

from implied contract to; to be filed in
settlement of documents estate.
Obligation arising ex lege are in the
common law system merged into the
category of obligations imposed by law
and all are denominated implied contracts;
Claims not yet due, or contingent may be
proved at their present value.

2.

VILLANUEVA VS RAMOS,
161 SCRA 363
(J) CLAIM FILED 7 YEARS AFTER

AS LONG AS THE ESTATE HAS NOT BEEN FULLY

SETTLED AND PARTITIONED:

An executor is a mere trustee of an estate.

The funds of the estate are trust funds

and held to the duties and responsibilities
of a trustee of the highest order.

An heir 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.

COURTS CAN EXTEND THE PERIOD WHICH TO

PRESENT CLAIMS AGAINST THE ESTATE EVEN
AFTER THE PERIOD LIMITED HAS LAPSED, BUT
ONLY UNDER SPECIAL CIRCUMSTANCES:
STATUTE OF NON-CLAIMS: MONEY CLAIM BARRED
BY THE STATUTE OF NON-CLAIM; PENDENCY OF
CLAIM BEFORE THE NLRC, NOT SUFFICIENT
EXCUSE FOR BELATED FILING OF CLAIM;

Appellants money claim, not seasonable

filed;
Claim was filed 7 years from notice of
publication, 2 years from approval of
project of partition and many months after
the judgment was rendered.
Absence any showing of excusable
negligence, mistake, accident or fraud
warranting interposition of a court equity,
the money claim may no longer be
allowed.

3.

ROBLEDO VS NLRC, 238

SCRA 52

(J) ER-EE RELATIONSHIP; CLAIM OF EMPLOYEE FOR

SALARY-PROBATE PROCEEDINGS
SIR ESCOLIN DOES NOT AGREE WITH THE DECISION;
RULE 86
1.

MACLAN VS GARCIA
97
PHIL 119
(J)OBLIGATION THAT ARISES FROM LAW, E.G.,
PAYMENT OF TAX; BUILDER IN GOOD FAITH-PRESENT AS
MONEY CLAIM

THE RULES CANNOT CONFER JURISDICTION TO THE

COURTS. UNDER THE LABOR CODE, MUST BE WITH
THE NLRC.
MONEY CLAIMS AGAINST AN ESTATE MUST BE
FILED IN ACCORDANCE WITH SECTION 5 OR RULE

86:
The rationale for the rule is that upon the
death of the defendant, a testate or
intestate proceeding shall be instituted in
13

SPECPRO CASES NOTES

the proper court wherein all his creditors

must appear and file their claims which
shall be paid proportionately out of the
property left by the deceased.
The objective is to avoid duplicity of
procedure.
Hence the ordinary actions must be taken
out from the ordinary courts.
Under Article 110 of the Labor Code,
money claims of laborer enjoy preference
over claims of the other creditors in case
of bankruptcy or liquidation of the
employers business.

4.

JAUCIAN VS QUEROL, 38
PHIL 707
(J) ON SOLIDARY OBLIGATION
EXECUTOR AND ADMINISTRATOR:
When two persons are bound in solidum
for the same debt and one of them dies,
the whole indebtedness can be proved
against the estate of the latter;
And if the claim is not presented to the
committee appointed to allow claims
against the estate within the time
contemplated under the Rules, the same
will be barred as against such estate.
Contingent claim must be presented to the
committee to hear claims against the
estate within the time prescribed for the
presentation of any other claim;
otherwise, they are barred.
5.

BUAN VS LAYA
682
(J) ON CONTINGENT CLAIM

NATURE IS NECESSARILY DEPENDENT UPON AN

UNCERTAIN EVENT FOR ITS EXISTENCE OR
VALIDITY:

It may or may not develop into a valid

enforceable claim and its validity and
enforceability depending upon an
uncertain event.

TEMPORARY DISMISSAL OF AN ACTION:

CONTINGENT CLAIM NOT AFFECTED:
A contingent claim does not follow the
temporary orders of dismissal of an action
upon which it is based;
It awaits the final outcome thereof and
only said final result can cause its
termination.

The rules provide that a contingent claim

is to be presented in the administration
proceedings in the same manner as any
ordinary claim, and that when the
contingency arises which converts the
contingent claim into a valid claim, the
court should then be informed that the
claim had already matured.

6.

ECHAUS VS BLANCO, 179

SCRA 704
(J) SOME PART OF THE RULING NO LONGER
APPLICABLE; OLD RULE; WHEN A PARTY DIES
DURING THE PENDENCY OF THE CASE NOW RULE
3 SECTION 16; CLAIM THAT WAS ALLOWED
CANT BE THE SUBJECT OF EXECUTION;

102 PHIL

A CONTINGENT CLAIM IS ONE WHICH, BY ITS

Money claims against a defendant who

dies before a decision could be rendered
in the civil case should have been
instituted as a money claim in the
intestate estate of the deceased.
Although the money claim was pursued in
the civil case, it does not render the
judgment null and void.
The Ruled of Court allows a creditor to file
his claim after the period set by the court
in the notice of creditor provided the
conditions stated in the Rules are present;
o The money claim against the estate
may be allowed anytime before an
order of distribution is entered at
the discretion of the court for cause
and upon such terms as are
equitable.

THE RULES ALLOW ATTACHMENT FOR PURPOSES

OF EXECUTION OF THE INTEREST OF AN HEIR IN
THE ESTATE OF THE DECEDENT:

And not the attachment of the estate itself

or any property therein for the satisfaction
of a claim against the decedent.

The ordinary procedure by which to settle

claims of indebtedness against the estate of a
deceased person is for the claimant to
present claim before the probate court so that
said court may order the administrator to pay
the amount thereof:
Issuance of an order to direct payment of the
money claim against the estate through
mandamus cannot be allowed because of the
issuance of the writ or preliminary injunction:

14

SPECPRO CASES NOTES

EVEN IF THE JUDGMENT CREDIT WERE ALLOWED

AS A CLAIM AGAINST THE ESTATE, IMMEDIATE

appellant Bank sufficient cause of action

to assert its claim against the estate of the
deceased.

PAYMENT THEREOF BY THE ADMINISTRATOR OF

THE ESTATE IS NOT A MATTER OF RIGHT:

Time for paying debts to be fixed by the

probate court;
A writ of mandamus will not issue to
compel the judge to order payment of the
money claim;
A judgment against the executor or
administrator shall be that he pay in due
course of administration, the amount
ascertained to be due, and it shall not
create a lien upon the property of the
estate, or give the judgment creditor any
priority in payment.
It is essential to the issuance of writ of
mandamus that the plaintiff should have a
clear legal right to the thing demanded
and it must be the imperative duty of the
defendant to perform the act required.

8.

VDA DE JACOB V. COURT OF

APPEALS 312 SCRA 722
(J) ON THE ALTERNATIVES OF A MORTGAGEE
9.

CUIZON VS RAMOLETE, 129

SCRA 495
(J) GENARAL RULE: ON LIMITED JURISDICTION OF
COURT, CANT DETERMINE TITLE.
A PROBATE COURT, WHETHER TESTATE OR
INTESTATE, CANNOT ADJUDICATE OR DETERMINE
TITLE TO PROPERTIES CLAIMED TO BE A PART OF
THE ESTATE AND WHICH ARE EQUALLY (CLAIMED
TO BELONG TO OUTSIDE PARTIES:

All that the said court could do as regards

said properties is to determine whether
they should or should not be included in
the inventory or list of properties to be
administered by the administrator.

If there is no dispute, well and good; but if

there is, then the parties, the
administrator, and the opposing parties
have to resort to an ordinary action for a
final determination of the conflicting
claims of title because the probate court
cannot do so.

7.

PNB VS VDA DE VILLARIN

66 PHIL 590
(J) ON REVIVAL OF JUDGMENT
JUDGMENT FOR MONEY AGAINST THE DECEDENT;
WHERE CLAIMANT FILED CLAIM AGAINST THE
DECEDENT INSTEAD OF FILING ACTION TO REVIVE
MONEY JUDGMENT; FILING OF PETITION FOR
ISSUANCE OF LETTERS OF ADMINISTRATION
WITHIN 10-YEAR PERIOD FOR REVIVAL OF
JUDGMENT:

The filing of the petition for the issuance

of letters of administration is the first
concrete step to take so that the creditors
of the estate of the deceased may be
known and recognized.

WHERE CLAIM CONSIDERED FILED WITHIN THE

10-YEAR PERIOD:
Filing of a petition for the issuance of
letters of administration in the settlement
of the intestate estate can be made to
retroact to the date when the petition for
letters of administration was filed with the
lower court because that was actually the
time a party may made known to the court
that it has a claim against the estate of
the deceased.
And thus having made known on time its
claim against the estate of the deceased
by means of its petition for the issuance of
letters of administration in the settlement
of the intestate estate this, has given

PROBATE COURT HAD NO AUTHORITY TO DEPRIVE

THIRD PERSONS OF THEIR POSSESSION AND
OWNERSHIP OF THE PROPERTY:

When a property is in the possession of a

third party and covered by a transfer
certificate of title issued in the name of
such third party, the probate court should
have excluded the property from the
inventory of the property of the estate.

Probate court is without jurisdiction and it

was unnecessary to first apply for relief
with the intestate court.

15

SPECPRO CASES NOTES

10.

BERNARDO V. CA, SUPRA

11.
ORTEGA VS CA 153 SCRA
96
(J) ON LIMITED JURISDICTION; DECLARATION OF HEIRS
WITHIN THE COMPETENCE OF THE PROBATE COURT; ON
WHETHER HEIRS ARE SIMULATED OR NOT, ONLY A
PROVISIONAL FINDING OF OWNERSHIP;
DECLARATION OF HEIRS VOID IT HAVING BEEN ALREADY
RESOLVED WITH FINALITY BY THE PROBATE COURT
WHOSE ORDER HAD ALREADY BECOME FINAL ABSENT
AN APPEAL THEREFROM:

But a probate court has not right to

determine with finality the ownership
of a parcel of land

12.
CIRCA NILA DEVELOPMENT
CORPORATION VS BAYLEN, 157 SCRA
609
(J) ON LIMITED JURISDICTION
ISSUE: Whether or not the Regional Trial
Court, sitting as a probate court, may compel
performance under a contract it had approved
incidental to its office as such a special court.

13.
GUANCO VS NATIONAL
BANK 54 PHIL 244
The purpose of the proceeding is to elicit
evidence, and the section does not, in
terms, authorize the court to enforce
delivery of possession of the things
involved.
To obtain the possession, recourse must
therefore generally be had to an ordinary
action.
The court could not compel the bank to
surrender possession of the shares upon
mere citation under the Rules.
14.
VALERA VS INSERTO, 149
SCRA 533
TO DETERMINE ISSUE OF TITLE:
1. All parties having legal interest consent
expressly or impliedly; OR
2. No prejudice to third party.
JURISDICTION OF PROBATE COURT; LIMITED AND
WITHOUT POWER TO DETERMINE THE ISSUE OF
TITLE TO PROPERTY CLAIMED BY A THIRD PERSON
ADVERSELY TO THE DECEDENT: EXCEPTION:

A PROBATE COURT IS A TRIBUNAL OF LIMITED

JURISDICTION, AND ACTS ON MATTERS
PERTAINING TO THE SETTLEMENT OF ESTATE BUT
NEVER ON RIGHT TO PROPERTY ARISING FROM
CONTRACT:

A probate court acts on matters

pertaining to the estate but never on
rights to property arising from
contract.
It approves contracts entered into for
and on behalf of the estate or the heirs
to it but this is by fiat of the Rules of
Court.
In that case, judicial approval is
necessary for the validity of such
contracts.
It cannot, however, adjudicate the
rights and obligations of the parties
thereto.
Compliance with the terms and
conditions thereof may be compelled
by specific performance, jurisdiction
over which is vested in the Regional
Trial Court, acting as a court of general
jurisdiction.

Unless the claimant and all the Other

parties having legal interest in the
property consent, expressly or impliedly,
to the submission of the question to the
Probate Court for adjudgment, or the
interests of third persons are not thereby
prejudiced;
O
The reason for the exception being
that the question of whether or not
a particular matter should be
resolved by the Court in the
exercise of its general jurisdiction
or of its limited jurisdiction as a
special court (e.g., probate, land
registration, etc.), is in reality not a
jurisdictional but in essence of
procedural one, involving a mode of
practice which may be waived.

THIS FUNCTION OF RESOLVING WHETHER OR NOT

PROPERTY SHOULD BE INCLUDED IN THE ESTATE
INVENTORY IS ONE CLEARLY WITHIN THE

PROBATE

COURT'S COMPETENCE:

But the Court's determination is only

provisional in character, not conclusive,
and is subject to the final decision in a

16

SPECPRO CASES NOTES

separate action that may be instituted by

the parties.

PAID OR THE DEVISEES OR LEGATEES SHALL HAVE

If a third person asserts a right to the

property contrary to the decedent's, the
Probate Court would have no authority to
resolve the issue; a separate action must
be instituted by the administrator to
recover the property.

An heir may only sell his ideal or

undivided share in the estate, not any
specific property therein.

Selling specific properties of the estate in

favor of a third person could not lawfully
done pending the final adjudication of the
estate by the intestate court because of
the undue prejudice it would cause the
other claimants to the estate.

BEEN GIVEN THEIR SHARES:

PROBATE COURT IS AUTHORIZED TO ADMIT A

COMPLAINT IN INTERVENTION AFTER OBTAINING THE
CONSENT OF ALL INTERESTED PARTIES TO ITS
ASSUMPTION OF JURISDICTION OVER THE QUESTION OF
TITLE TO THE PROPERTIES:

A COURT APPROVAL IS NECESSARY FOR THE

VALIDITY OF ANY DISPOSITION OF THE
DECEDENTS ESTATE:

WHEN THE DETERMINATION BY THE PROBATE COURT OF

The sale of the property of the estate by

an administrator without the order of the
probate court is void and passes no title to
the purchaser.

Jurisprudence is 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.

THE QUESTION OF TITLE TO THE PROPERTY WAS

MERELY PROVISIONAL, IT CANNOT BE THE SUBJECT OF
EXECUTION AND WHERE THE

TORRENS TITLE TO THE

PROPERTY IS NOT IN THE DECEDENTS NAME BUT IN

OTHERS;

Primary jurisdiction over title in court

taking cognizance of separate action is
deemed superior to the contrary order of
the probate court in the exercise of
provisional jurisdiction over the same
question.

16.
LEE V. RTC OF QUEZON CITY 423
SCRA 497
(J) AN HEIR CAN SELL HIS HEREDITARY RIGHTS
WITHOUT THE APPROVAL OF THE COURT

THE INTESTATE COURT HAS THE POWER TO EXECUTE

ITS ORDER WITH REGARD TO THE NULLITY OF AN

WHERE THE APPROPRIATION OF ESTATE

PROPERTIES IS INVALID, THE SUBSEQUENT SALE

UNAUTHORIZED SALE OF ESTATE PROPERTY;

THEREOF TO A THIRD PARTY WITHOUT COURT

APPROVAL IS LIKEWISE INVALID.

OR FRAUDULENT DISPOSITION OF ESTATE PROPERTY

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

OTHERWISE ITS POWER TO ANNUL THE UNAUTHORIZED

WOULD BE MEANINGLESS:

Enforcement is a necessary adjunct of the

intestate or probate courts power to
annul unauthorized or fraudulent
transactions to prevent the dissipation of
estate property before final adjudication.

17

SPECPRO CASES NOTES

"INJURY TO PROPERTY" IS NOT LIMITED TO

INJURIES TO SPECIFIC PROPERTY, BUT EXTENDS
WHERE THE ISSUE IS THE EFFECT OF THE SALE MADE
BY THE DECEDENTS HEIR WITHOUT THE REQUIRED
APPROVAL OF THE INTESTATE COURT, NOT WITH THE

TO OTHER WRONGS BY WHICH PERSONAL ESTATE

ISSUE OF INCLUSION OR EXCLUSION OF PROPERTIES IN

IS INJURED OR DIMINISHED:

THE INVENTORY OF THE ESTATE, THE DETERMINATION

THEREON BY THE INTESTATE COURT IS NOT MERELY
PROVISIONAL;

THE TITLE OF A PURCHASE OF AN ESTATE PROPERTY

CAN BE STRUCK DOWN BY THE INTESTATE COURT AFTER
A CLEAR SHOWING OF THE NULLITY OF THE
ALIENATION.

17.
AGUAS VS LLEMOS, 5 SCRA 959
(J) FACTS: P FILED ACTION TO RECOVER DAMAGES FOR
THE MALICIOUS ACT OF D. D DIED BEFORE FILING AN
ANSWER. HELD: CONCEPT OF TORT NOT LIMITED
ONLY TO NEGLIGENCE. INJURY TO PROPERTY.
CLAIM AGAINST THE ESTATE OF THE DECEASED;
ACTION THAT ARE ABATED BY DEATH:
1. Claims for funeral expenses and those
for the last sickness of the decedent;
2. Judgment for money
3. All claims for money against the
decedent, arising from contract
express of implied.
THE PHRASE CONTRACT EXPRESS OR IMPLIED
INCLUDES ALL PURELY PERSONAL OBLIGATION OTHER
THAN THOSE WHICH HAVE THEIR SOURCE IN DELICT OR
TORT.

To maliciously cause a party to incur

unnecessary expenses, as charged in this
case, is certainly injurious to that party's
property

18.
SHECKER V. ESTATE OF ALICE O.
SCHECKER 540 SCRA 111
(J) ON FILING OF MONEY CLAIM: NOT INITIATORY THAT
REQUIRES CERTIFICATION AGAINST FORUM SHOPPING

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:
Nowhere in the Rules of Court does it
categorically say that rules in ordinary
actions are inapplicable or merely
suppletory to special proceedings.
Provisions of the Rules of Court requiring a
certification of non-forum shopping for
complaints and initiatory pleadings, a
written explanation for non-personal
service and filing, and the payment of
filing fees for money claims against an
estate would not in any way obstruct
probate proceedings, thus, they are
applicable to special proceedings such as
the settlement of the estate of a deceased
person.
THE CERTIFICATION OF NON-FORUM SHOPPING IS

ACTIONS THAT SURVIVE AGAINST A DECEDENT'S

EXECUTORS OR ADMINISTRATORS:

1. Actions to recover real and personal

property from the estate;
2. Actions to enforce a lien thereon; and
3. Actions to recover damages for an injury
to person or property.

REQUIRED ONLY FOR COMPLAINTS AND OTHER

INITIATORY PLEADINGS:

A contingent money claim against the

estate of a decedent is not an initiatory
pleading;
A probate proceeding is initiated upon the
filing of the petition for allowance of the
decedents will;
A contingent claim, not being an initiatory
pleading does not require a certification
against non-forum shopping.
Non-payment of filing fees for a money
claim against the estate is not one of the

18

SPECPRO CASES NOTES

grounds for dismissing claim against the

estate.
19.
NITTSCHER V. NITTSCHER 537
SCRA 681
(J) ON FILING OF PETITION FOR LETTERS
TESTAMENTARY; NOT INITIATORY THAT REQUIRES
CERTIFICATION AGAINST FORUM SHOPPING;

the sale of property for payment of debts

of a deceased person.
2. BONAGA V. SOLER, 2 SCRA 755
(J) REQUISITES ARE MANDATORY WITHOUT THEM THE
AUTHORITY TO SALE, AS WELL AS THE SALE ITSELF,
ARE NULL AND VOID.

WHERE THE PETITION FOR THE ISSUANCE OF LETTERS

TESTAMENTARY IS BUT A MERE CONTINUATION OF THE
ORIGINAL PETITION FOR THE PROBATE OF THE
DECEDENTS WILL, IT IS NOT AN INITIATORY
PLEADINGS:

WHERE THE AUTHORITY TO SELL PROPERTY

UNDER ADMINISTRATION IS ISSUED WITHOUT
NOTICE TO ALL THE HEIRS AND HEARING OF THE
APPLICATION, SUCH AUTHORITY TO SELL AS WELL
AS THE SALE ITSELF AND THE ORDER APPROVING
IT ARE NULL AND VOID AB INITIO:

Hence, failure to include a certification

against forum shopping is not a ground for
outright dismissal of the said petition.

THE ALLOWANCE OF A WILL IS CONCLUSIVE ONLY AS TO

ITS DUE EXECUTION:
The authority of the probate court is
limited to ascertaining whether the
testator, being of sound mind, freely
executed the will in accordance with the
formalities prescribed by law.

Thus, any claim of title to the properties

forming part of an estate should be settled
in an ordinary action before the regular
courts

RULE 89
1. INTESTATE ESTATE OF JANUARIA
GONZALES V. DE GUIA 72 PHIL 245
(J) RIGHT OF REDEMPTION IF SALE IS ORDERED BY THE
PROBATE COURT; HEIRS NO RIGHT BECAUSE SALE
CONSIDERED FINAL. ONLY THE PROCEDURE FOR
SELLING UNDER RULE 39 IS APPLICABLE AND NOT THE
REDEMPTION.
SALE ORDERED BY PROBATE COURT;
REDEMPTION:
In the administration and liquidation of the
estate of a deceased person, sales
ordered by the probate court for payment
of debts are final and are not subject to
legal redemption.
Unlike in ordinary execution sales, there is
no legal provision allowing redemption in

The rules does not distinguish between

heirs residing in the Philippines and those
residing outside, its requirements apply
regardless of the place of residence of
those required to be notified.
Where there is no showing that sale was
made for the purpose of paying debts or
expenses of the administration, such rule
does not apply.
Successor of administrator is not estopped
to question the acts of his predecessor.

3. MANECLANG V. BAUN 208 SCRA 179

(J) NOTICE TO COUNSEL IS NOTICE TO HEIRS, THE 2
THAT ARE OF AGE NOT REPRESENTED BY COUNSEL. IF
MINORS, SERVE TO GUARDIAN AD LITEM NOT LEGAL
GUARDIAN.
ISSUE: The validity of a sale of a parcel of
land by the administrator of an intestate
estate made pursuant to a petition for
authority to sell and an order granting it
which were filed and entered, respectively,
without notice to the heirs of the decedents.
FOR THE PURPOSE OF COMPLYING WITH THE
REQUIREMENT OF NOTICE UNDER RULE 89 OF THE
RULES OF COURT, IT DOES NOT FOLLOW THAT NOTICE
TO THE FATHER IS NOTICE TO THE CHILDREN:

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.

19

SPECPRO CASES NOTES

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 because heirs 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.

remaining estate is delivered to the heirs

to receive the same.
The finality of the approval of the project
of partition by itself alone does not
terminate the probate proceedings.

IN PROBATE PROCEEDINGS THE COURT:

1. Orders the probate of the will of the
decedent
2. Grants letters of administration to the
party best entitled thereto or to any
qualified applicant supervises and controls
all acts of administration;

A DECEDENT'S REPRESENTATIVE IS NOT ESTOPPED

TO QUESTION THE VALIDITY OF HIS OWN VOID
DEED PURPORTING TO CONVEY LAND:

3. Hears and approves claims against the

estate of the deceased,

And if this be true of the administrator as

to his own acts, a fortiori, his successor
cannot be estopped to question the acts of
his predecessor are not conformable to
law."

4. Orders payment of lawful debts

5. Authorizes sale, mortgage or any
encumbrance of real estate, directs the
delivery of the estate to those entitled
thereto.

Not being the party who petitioned the

court for authority to sell and who
executed the sale, an heir cannot be held
liable for any act or omission which could
give rise to estoppel.

JUDICIAL REVOCATION OR MODIFICATION OF

LEASE CONTRACT:

4. MANOTOK REALTY INC. V. CA 149

SCRA 174
SALE OF IMMOVABLE PROPERTY OF DECEDENTS

If the probate court has the right to

approve the lease, so may it order its
revocation, or the reduction of the subject
of the lease.

The matter of giving the property to a

lessee is an act of administration, also
subject to the approval of the court.

ESTATE IS A SPECIAL PROCEEDINGS NEED COURT

APPROVAL.

Rule 90
1. TIMBOL V. CANO, 1 SCRA 1271
(J)EVEN IF THERE IS ALREADY ORDER OF
DISTRIBUTION, THE COURT RETAINS JURISDICTION
WHEN THERE IS NO DISTRIBUTION YET.
WHEN PROBATE COURT LOSES JURISDICTION OVER
ESTATE UNDER ADMINISTRATION:

The probate court loses jurisdiction over

an estate under administration only after
the payment of all the debts and after the

2.

SOLIVIO V. COURT OF APPEALS, 182

SCRA 119
TRIAL COURT HAS NO JURISDICTION TO
ENTERTAIN AN ACTION FOR PARTITION AND
RECOVERY OF PROPERTIES BELONGING TO THE
ESTATE OF A DECEASED PERSON WHILE THE
PROBATE PROCEEDINGS FOR THE SETTLEMENT OF

20

SPECPRO CASES NOTES

SAID ESTATE ARE STILL PENDING IN ANOTHER
BRANCH OF THE SAME COURT:

As long as the order of the distribution of

the estate has not been complied with, the
probate proceedings cannot be deemed
closed and terminated because a judicial
partition is not final and conclusive
and does not prevent the heirs from
bringing an action to obtain his share,
provided the prescriptive period therefore
has not elapsed;
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 or intestate court
already final and executed and re-shuffle
properties long ago distributed and
disposed of.

RULE 91
1. REPUBLIC VS CFI MANILA, 167 SCRA
11
(J) ON VENUE; WHERE THE RES IS SITUATED
THE BANK IS THE REAL PARTY IN INTEREST FOR THE
ESCHEAT OF DORMANT DEPOSIT IN FAVOR OF THE
GOVERNMENT:

2. MUNICIPALITY OF MAGALLON VS
BEZORE 109 PHIL 829. OCT. 26, 1960

3. DE GUZMAN V. SEVILLA 47 PHIL 991

The persons entitled to succeed a natural
child in an intestate succession are the
mother or mother who acknowledged it, and
in default of either, its natural brothers:
Although there are no relative entitled to
succeed the deceased, it is however
premature to award the estate to the
State before the requirements of the Rules
are complied.
4. DIVINO V. HILARIO 62 PHIL 926
GUARDIANSHIP
1. CUI V. PICCIO 91 P 712
(J) GUARDIANSHIP COURT HAS LIMITED JURISDICTION;
DETERMINATION OF TITLE TO A PROPERTY IN
GUARDIANSHIP PROCEEDINGS IS BEYOND ITS
JURISDICTION.

2. LINDAIN V. CA 212 S 725

(J) PARENTS SALE OF PROPERTY BELONGING TO
MINOR CHILDREN IS NULL AND VOID IF WITHOUT
COURT APPROVAL.
A PARENT, ACTING MERELY AS THE LEGAL (AS
DISTINGUISHED FROM JUDICIAL) ADMINISTRATOR
OF THE PROPERTY OF HIS/HER MINOR CHILDREN,
DOES NOT HAVE THE POWER TO DISPOSE OF, OR
ALIENATE, THE PROPERTY OF SAID CHILDREN
WITHOUT JUDICIAL APPROVAL:

The powers and duties of the widow as

legal administrator of her minor children's
property as provided in Rule 84 by the
Rules of Court entitled, "General Powers
and Duties of Executors and
Administrators" are only powers of
possession and management.

Her power to sell, mortgage, encumber or

otherwise dispose of the property of her
minor children must proceed from the

THE JURISDICTION ACQUIRED BY A COURT TO

HEAR A PETITION FOR ESCHEAT BY VIRTUE OF
PUBLICATION CANNOT BE CONVERTED INTO ONE
FOR THE DISTRIBUTION OF THE PROPERTIES OF
THE SAID DECEDENTS:

For such proceedings (for the distribution

of the estate of the decedents) to be
instituted, the proper parties must be
presented and the proceedings should
comply with the requirements of the Rules
of Court.

Neither in guardianship proceedings nor in

administration proceedings may the court
determining the ownership of property
claimed by the gurdian or administrator to
belong to the ward or to the estate of the
deceased, and order its delivery to them.

21

SPECPRO CASES NOTES

court, as provided in Rules of Court which

requires court authority and approval.

THE ORDER OR IN THE TITLE OF THE PETITION

DEFEATS THE VERY PURPOSE OF THE REQUIRED
PUBLICATION:

GOOD FAITH NEGATED BY KNOWLEDGE OF LACK

OF JUDICIAL AUTHORITY TO ENTER INTO
TRANSACTION:

RULE 103
1. REPUBLIC V. ZOSA, G.R. NO. 48762,
SEPTEMBER 12, 1988
(J) THE TITLE OF THE PETITION SHOULD INCLUDE (1)
THE APPLICANT'S REAL NAME, (2) HIS ALIASES OR
OTHER NAMES, IF ANY, AND (3) THE NAME SOUGHT TO
BE ADOPTED, OTHERWISE THE COURT WILL NOT
ACQUIRE JURISDICTION OVER THE CASE.
THE PROCEEDING FOR A CHANGE OF NAME IS A
PROCEEDING IN REM:
Jurisdiction to hear and determine the
petition for change of name is acquired
after due publication of the order
containing certain data, among which is
the name sought to be adopted, a matter
which should be indicated in the title of
the petition.
IN A PETITION FOR CHANGE OF NAME THE TITLE
OF THE PETITION SHOULD INCLUDE THE
FOLLOWING:

(1) The applicant's real name

(2) His aliases or other names, if any, and
(3) The name sought to be adopted even if
these data are found in the body of the
petition.
FOR THE PUBLICATION TO BE VALID AND
EFFECTIVE:
The published order should reproduce the
title of the petition containing the data
already stated and should contain correct
information as to (1) the name or names
of the applicant; (2) the cause for the
changed name, and (3) the new name
asked for;
The failure to include the name sought to
be adopted in the title of the petition nor
in the title or caption of the notices
published in the newspapers renders the
trial court without jurisdiction to hear and
determine the petition.
THE NON-INCLUSION OF ALL THE NAMES OR

The ordinary reader only glances fleetingly

at the caption of the published order or
the title of the petition in a special
proceeding.
Hence, only if the caption or the title
strikes him does he proceed to read the
contents of the order.
And the probability is great that he does
not at all notice the other names or aliases
of the applicant if these are mentioned
only in the body of the order or petition.
If the petition in the case and the order
setting it for hearing are defective, the
lower court did not acquire jurisdiction
over the proceeding.

2. REPUBLIC V. MARCOS, G.R. NO. L31065, FEBRUARY 15, 1990

(J) THE COURT HAS NO JURISDICTION WHERE AN ALIAS
IS OMITTED IN THE CAPTION; CHANGE OF NAME TO
ADOPT THE SURNAME OF THE STEPFATHER NOT
ALLOWED; FILING OF A PETITION FOR CHANGE OF
NAME BY A PARENT ON BEHALF OF A MINOR CHILD IS
PREMATURE.
ALL ALIASES OF THE APPLICANT MUST BE SET
FORTH IN THE TITLE OF THE PUBLISHED PETITION:

For the omission of any of such aliases,

would be fatal to the petition even if such
other aliases are mentioned in the body of
the petition.

THE FOLLOWING HAVE BEEN CONSIDERED VALID

GROUNDS FOR A CHANGE OF NAME:
(1) When the name is ridiculous,
dishonorable, or extremely difficult to
write or pronounce;
(2) When the change results as a legal
consequence, as in legitimation;
(3) When the change will avoid confusion
(4) Having continuously used and been known
since childhood by a Filipino name,
unaware of his alien parentage; or
(5) A sincere desire to adopt a Filipino name
to erase signs of former alienage all in
good faith and not to prejudice anybody
THE GENERAL RULE IS THAT A CHANGE OF NAME
SHOULD NOT BE PERMITTED IF IT WILL GIVE A
FALSE IMPRESSION OF FAMILY RELATIONSHIP TO
ANOTHER WHERE NONE ACTUALLY EXISTS:

ALIASES OF THE APPLICANT IN THE CAPTION OF

22

SPECPRO CASES NOTES

The law do not authorize legitimate

children to adopt the surname of a person
not their father, for to allow them to adopt
the surname of their mother's husband,
who is not their father, can result in
confusion of their paternity.

THE PETITION FOR CHANGE OF NAME MUST BE

FILED BY THE PERSON DESIRING TO CHANGE
HIS/HER NAME, EVEN IF IT MAY BE SIGNED AND
VERIFIED BY SOME OTHER PERSON IN HIS
BEHALF:

Only upon reaching the age of majority

that a petitioner may file the petition to
change his or her name.
The decision to change her name, the
reason for the change, and the choice of a
new name and surname shall be his/hers
alone to make.
It must be her personal decision. No one
else may make it for her. The reason is
obvious.

DOES NOT SANCTION A CHANGE OF FIRST NAME

ON THE GROUND OF SEX REASSIGNMENT.

THE PETITION IN THE TRIAL COURT IN SO FAR AS

IT PRAYED FOR THE CHANGE OF PETITIONERS
FIRST NAME WAS NOT WITHIN THAT COURTS
PRIMARY JURISDICTION AS THE PETITION SHOULD
HAVE BEEN FILED WITH THE LOCAL CIVIL
REGISTRAR CONCERNED, ASSUMING IT COULD BE
LEGALLY DONE:

Rule 108
1. SILVERIO V. REPUBLIC 537 SCRA 373
(J) CHANGE OF FIRST NAME AND SEX ON THE GROUND
OF SEX REASSIGNMENT IS NOT ALLOWED.
RA 9048 NOW GOVERNS THE CHANGE OF FIRST
NAME. IT VESTS THE POWER AND AUTHORITY TO
ENTERTAIN PETITIONS FOR CHANGE OF FIRST
NAME TO THE CITY OR MUNICIPAL CIVIL
REGISTRAR OR CONSUL GENERAL CONCERNED:

Jurisdiction over applications for change of

first name is now primarily lodged with the
aforementioned administrative officers.
The intent and effect of the law is to
exclude the change of first name from the
coverage of Rules 103 (Change of Name)
and 108 (Cancellation or Correction of
Entries in the Civil Registry) of the Rules of
Court, until and unless an administrative
petition for change of name is first filed
and subsequently denied.
It likewise lays down the corresponding
venue, form and procedure.
In sum, the remedy and the proceedings
regulating change of first name are
primarily administrative in nature, not
judicial.

A CHANGE OF NAME DOES NOT ALTER ONES

LEGAL CAPACITY OR CIVIL STATUS. RA 9048

Before a person can legally change his

given name, he must present proper or
reasonable cause or any compelling
reason justifying such change.
In addition, he must show that he will be
prejudiced by the use of his true and
official name.
In this case, he failed to show, or even
allege, any prejudice that he might suffer
as a result of using his true and official
name.

It was an improper remedy because the

proper remedy was administrative, that is,
that provided under RA 9048.
It was also filed in the wrong venue as the
proper venue was in the Office of the Civil
Registrar of Manila where his birth
certificate is kept.
More importantly, it had no merit since the
use of his true and official name does not
prejudice him at all.

NO LAW ALLOWS THE CHANGE OF ENTRY IN

THE BIRTH CERTIFICATE AS TO SEX ON THE
GROUND OF SEX REASSIGNMENT:
The determination of a persons sex
appearing in his birth certificate is a legal
issue and the court must look to the
statutes.
In this connection, Article 412 of the Civil
Code provides: ART. 412. No entry in the
civil register shall be changed or corrected
without a judicial order.
TOGETHER WITH ARTICLE 376 OF THE CIVIL
CODE, THIS PROVISION WAS AMENDED BY RA
9048 IN SO FAR AS CLERICAL OR
TYPOGRAPHICAL ERRORS ARE INVOLVED:
The correction or change of such matters
can now be made through administrative
proceedings and without the need for a
judicial order.
In effect, RA 9048 removed from the ambit
of Rule 108 of the Rules of Court the
correction of such errors.

23

SPECPRO CASES NOTES

Rule 108 now applies only to substantial

changes and corrections in entries in the
civil register.23
SECTION 2(C) OF RA 9048 DEFINES WHAT A
"CLERICAL OR TYPOGRAPHICAL ERROR" IS:
"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.
Under RA 9048, a correction in the civil
registry involving the change of sex is not
a mere clerical or typographical error.
It is a substantial change for which
the applicable procedure is Rule 108
of the Rules of Court.
THE ACTS, EVENTS OR FACTUAL ERRORS
CONTEMPLATED UNDER ARTICLE 407 OF THE CIVIL
CODE INCLUDE EVEN THOSE THAT OCCUR AFTER
BIRTH.A HOWEVER, NO REASONABLE INTERPRETATION
OF THE PROVISION CAN JUSTIFY THE CONCLUSION THAT
IT COVERS THE CORRECTION ON THE GROUND OF SEX
REASSIGNMENT.

To correct simply means "to make or set

aright; to remove the faults or error from"
while to change means "to replace
something with something else of the
same kind or with something that serves
as a substitute."
The birth certificate of petitioner
contained no error.
All entries therein, including those
corresponding to his first name and sex,
were all correct. No correction is
necessary.
"STATUS" REFERS TO THE CIRCUMSTANCES
AFFECTING THE LEGAL SITUATION (THAT IS, THE
SUM TOTAL OF CAPACITIES AND INCAPACITIES) OF
A PERSON IN VIEW OF HIS AGE, NATIONALITY AND
HIS FAMILY MEMBERSHIP:
2. REPUBLIC V. CAGANDAHAN 565 SCRA
72
CHANGE OF FIRST NAME AND SEX ON THE GROUND OF
A MEDICAL CONDITION KNOWN AS CAH IS ALLOWED.

THE DETERMINATION OF A PERSONS SEX

APPEARING IN HIS BIRTH CERTIFICATE IS A LEGAL
ISSUE AND THE COURT MUST LOOK TO THE
STATUTES. IN THIS CONNECTION, ARTICLE 412
OF THE CIVIL CODE PROVIDES:

ART. 412. No entry in a civil register shall

be changed or corrected without a judicial
order.
Together with Article 376[16] of the Civil
Code, this provision was amended by
Republic Act No. 9048[17] in so far as
clerical or typographical errors are
involved.
The correction or change of such matters
can now be made through administrative
proceedings and without the need for a
judicial order.
In effect, Rep. Act No. 9048 removed from
the ambit of Rule 108 of the Rules of Court
the correction of such errors.
Rule 108 now applies only to
substantial changes and corrections
in entries in the civil register.

UNDER REP. ACT NO. 9048, A CORRECTION IN

THE CIVIL REGISTRY INVOLVING THE CHANGE OF
SEX IS NOT A MERE CLERICAL OR TYPOGRAPHICAL
ERROR. IT IS A SUBSTANTIAL CHANGE FOR WHICH
THE APPLICABLE PROCEDURE IS RULE 108 OF
THE RULES OF COURT:

THE ENTRIES ENVISAGED IN ARTICLE 412 OF THE

CIVIL CODE AND CORRECTABLE UNDER RULE 108
OF THE RULES OF COURT ARE THOSE PROVIDED
IN ARTICLES 407 AND 408 OF THE CIVIL CODE:
ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the
civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of
name. The acts, events or factual errors
contemplated under Article 407 of the Civil
Code include even those that occur after
birth.

24

SPECPRO CASES NOTES

RULE 109
1. BRIONES V. HENSON-CRUZ 563 SCRA
69
BY THE EXPRESS TERMS OF THE RULES, THE
RULING ON THE EXTENT OF THE SPECIAL
ADMINISTRATOR'S COMMISSION - EFFECTIVELY, A
CLAIM BY THE SPECIAL ADMINISTRATOR AGAINST
THE ESTATE - IS THE LOWER COURT'S LAST WORD
ON THE MATTER AND ONE THAT IS APPEALABLE:

From an estate proceeding perspective,

the Special Administrator's commission is
no less a claim against the estate than a
claim that third parties may make.
Section 8, Rule 86 of the Rules recognizes
this when it provides for "Claim of
Executor or Administrator Against an
Estate."
Under Section 13 of the same Rule, the
action of the court on a claim against the
estate "is appealable as in ordinary
cases."
"The test to ascertain whether or not an
order is interlocutory or final is - Does it
leave something to be done in the
trial court with respect to the merits
of the case? If it does, it is
interlocutory; if it does not it is final."

2. MARINDUQUE MINING AND

INDUSTRIAL CORPORATION VS COURT
OF APPEALS 567 SCRA 483
(J) ON MULTIPLE APPEALS. WHETHER THIS DECISION
ALSO APPLIES TO SPECIAL PROCEDDINGS. NO, ALWAYS
RECORD ON APPEAL.
IN A CASE WHERE THE TRIAL COURT FULLY AND
FINALLY RESOLVED ALL CONCEIVABLE ISSUES IN
THE COMPLAINT FOR EXPROPRIATION, THERE IS
NO NEED TO FILE A RECORD ON APPEAL SINCE
THE ORIGINAL RECORDS COULD ALREADY BE SENT
TO THE APPELLATE COURT:

If the trial court had no more issue to

resolve, there was no reason why the
original records of the case must remain
with the trial court.
Hence, there is no need to file a record on
appeal because the original records could
already be sent to the appellate court.

3. REPUBLIC V. BERMUDEZ-LORINO 449 SCRA

57
(J) DECISIONS UNDER FAMILY CODE ARE FINAL AND
EXECUTORY. THERE IS NO APPEAL.

IN SUMMARY JUDICIAL PROCEEDINGS UNDER THE

FAMILY CODE, THERE IS NO REGLEMENTARY
PERIOD WITHIN WHICH TO PERFECT AN APPEAL,
PRECISELY BECAUSE JUDGMENTS RENDERED
THEREUNDER, BY EXPRESS PROVISION OF

SECTION 247, FAMILY CODE, SUPRA, ARE

"IMMEDIATELY FINAL AND EXECUTORY"

It was erroneous, therefore, on the part of

the RTC to give due course to the
Republics appeal and order the
transmittal of the entire records of the
case to the Court of Appeals.

AN APPELLATE COURT ACQUIRES NO

JURISDICTION TO REVIEW A JUDGMENT WHICH, BY
EXPRESS PROVISION OF LAW, IS IMMEDIATELY
FINAL AND EXECUTORY:

"The right to appeal is not a natural right

nor is it a part of due process, for it is
merely a statutory privilege."

Since, by express mandate of Article 247

of the Family Code, all judgments
rendered in summary judicial proceedings
in Family Law are "immediately final and
executory", the right to appeal was not
granted to any of the parties therein.

The Republic of the Philippines, as

oppositor in the petition for declaration of
presumptive death, should not be treated
differently. It had no right to appeal the
RTC decision.

HABEAS CORPUS
ON CONSTRUCTIVE RESTRAINT
A) VILLAVICENCIO V. LUKBAN 39 PHIL
7778
(J) WOMEN OF ILL REPUTE SENT TO DAVAO WHO
WERE DEPRIVED OF LOCOMOTION

THE REMEDIES OF THE UNHAPPY VICTIMS OF

OFFICIAL OPPRESSION?

THE REMEDIES OF THE

25

SPECPRO CASES NOTES

CITIZEN ARE THREE:

(1) CIVIL ACTION; (2)

CRIMINAL ACTION, AND (3) HABEAS CORPUS:
A PRIME SPECIFICATION OF AN APPLICATION FOR

That the act may be a crime and that the

persons guilty thereof can be proceeded
against, is no bar to the institution of
habeas corpus proceedings.

A WRIT OF HABEAS CORPUS IS RESTRAINT OF

LIBERTY:

The essential object and purpose of the

writ of habeas corpus is to inquire into all
manner of involuntary restraint as
distinguished from voluntary, and to
relieve a person therefrom if such restraint
is illegal.

Any restraint which will preclude

freedom of action is sufficient.

THE WRIT OF HABEAS CORPUS WAS DEVISED AND

EXISTS AS A SPEEDY AND EFFECTUAL REMEDY TO
RELIEVE PERSONS FROM UNLAWFUL RESTRAINT,
AND AS THE BEST AND ONLY SUFFICIENT DEFENSE
OF PERSONAL FREEDOM:

Any further rights of the parties are left

untouched by decision on the writ, whose
principal purpose is to set the individual at
liberty.

IF THE RESPONDENT IS WITHIN THE JURISDICTION

OF THE COURT AND HAS IT IN HIS POWER TO
OBEY THE ORDER OF THE COURT AND THUS TO
UNDO THE WRONG THAT HE HAS INFLICTED, HE
SHOULD BE COMPELLED TO DO SO:

WHERE IT IS IMPOSSIBLE FOR A PARTY TO SIGN

AN APPLICATION FOR THE WRIT OF HABEAS
CORPUS:

It was consequently proper for the writ to

be submitted by persons in their behalf.

Even if the party to whom the writ is

addressed has illegally parted with the
custody of a person before the application
for the writ is no reason why the writ
should not issue.

TO AVOID UNNECESSARY EXPENSE AND

INCONVENIENCE, PETITIONS FOR HABEAS
CORPUS SHOULD BE PRESENTED TO THE NEAREST
JUDGE OF THE COURT OF FIRST INSTANCE:

FOR THE RESPONDENTS TO HAVE FULFILLED THE

COURT'S ORDER, THREE OPTIONAL COURSES
WERE OPEN:

But this is not a hard and fast rule.

The writ of habeas corpus may be granted
by the Supreme Court or any judge
thereof enforcible anywhere in the
Philippine Islands.
Whether the writ shall be made returnable
before the Supreme Court or before an
inferior court rests in the discretion of the
Supreme Court and is dependent on the
particular circumstances.

(1) They could have produced the bodies of

the persons according to the command of
the writ; or
(2) They could have shown by affidavit that
on account of sickness or infirmity those
persons could not safely be brought
before the court; or
(3) They could have presented affidavits to
show that the parties in question or their
attorney waived the right to be present.

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SPECPRO CASES NOTES

involuntary but are unnecessary, and

where a deprivation of freedom originally
valid has later become arbitrary.

THE POWER TO PUNISH FOR CONTEMPT OF

COURT SHOULD BE EXERCISED ON THE
PRESERVATIVE AND NOT ON THE VINDICTIVE
PRINCIPLE:

Only occasionally should the court invoke

its inherent power in order to retain that
respect without which the administration
of justice must falter or fail.

When one is commanded to produce a

certain person and does not do so, and
does not offer a valid excuse, a court
must, to vindicate its authority, adjudge
the respondent to be guilty of contempt,
and must order him either imprisoned or
fined.

3. SAULO V. CRUZ 105 PHIL 315

WHEN A WRIT OF HABEAS CORPUS IS,
COMFORMABLY TO LAW, MADE RETURNABLE TO A
COURT OTHER THAN THAT ISSUING THE WRIT, THE
COURT TO WHICH THE WRIT IS RETURNED OR THE
JUDGE THEREOF POSSESSES FULL AUTHORITY TO
EXAMINE ALL ISSUES RAISED IN THE CASE AND TO
SETTLE THE SAME:
WRIT OF HABEAS CORPUS PLAYS A ROLE
SOMEWHAT COMPARABLE TO A SUMMONS, IN
ORDINARY CIVIL ACTIONS, IN THAT, BY SERVICE
OF SAID WRIT, THE COURT ACQUIRES
JURISDICTION OVER THE PERSON OF THE
RESPONDENT:

An officer's failure to produce the body of

a person in obedience to a writ of habeas
corpus when he has power to do so, is a
contempt committed in the face of the
court.

Once authority over the latter has thus

been established, the appellate court
issuing the writ, or the court of first
instance to which the writ has been made
returnable acting in place of the
appellate court may render a decision,
which like other decisions of the
Supreme Court and of courts of first
instance may be enforced anywhere in
the Philippines.

B) MONCUPA V. ENRILE, 141 SCRA 233

THE COURT OR THE JUDGE TO WHOM THE WRIT IS

RESTRAINTS ATTACHED TO TEMPORARY RELEASE OF A

DETAINED PERSON WARRANT THE SUPREME COURTS
INQUIRY INTO THE NATURE OF THE INVOLUNTARY
RESTRAINT AND RELIEVING HIM OF SUCH RESTRAINTS
AS MAY BE ILLEGAL:

MADE RETURNABLE TAKES THE CASE FOR

Reservation of the military in the form of

restriction attached to the detainees
temporary release constitutes restraint on
liberties of the detainees.
Such restriction limits the freedom of
movement of the petitioner.
It is not physical restraint alone which is
inquired into by the writ of habeas corpus.

TEMPORARY RELEASE OF DETAINEE FROM DETENTION

DOES NOT RENDER THE PETITION FOR WRIT OF HABEAS
CORPUS MOOT AND ACADEMIC:

Writ of habeas corpus is available where a

person continue to be unlawfully denied of
one or more of his constitutional
freedoms;
Where there is denial of due process,
where the restraints are not merely

DETERMINATION ON THE MERITS AND ITS

FINDINGS, EITHER FOR THE RELEASE OF THE
DETAINEE OR FOR SUSTAINING HIS CONTINUED
CUSTODY, IF NOT APPEALED ON TIME, CAN
BECOME FINAL JUST AS IT MAY IN AN ORDINARY
CASE:

While the petition for habeas corpus was

originally filed with Supreme Court, the
only question that was immediately
involved was the propriety of the issuance
of a writ that would order the respondent
to show cause why the detention of the
person in whose behalf the writ was asked
for should not be considered illegal, and
that, therefore, the petitioner be ordered
discharged from custody.

27

SPECPRO CASES NOTES

The Rules authorize that once the writ is

issued, the same may be made returnable
before a Regional Trial Court (Sec. 2, Rule
102, Rules of Court), and not necessarily
to the SUPREME COURT.
The court designated does not thereby
become merely a recommendatory body,
whose findings and conclusion are devoid
of effect, unless and until the Supreme
Court decide to act on the
"recommendation."
By filing a notice of appeal with the Court
below, the appellant impliedly admitted
that the decision appealed was not merely
recommendatory or fact-finding.

THE COURT OR JUDGE TO WHOM THE WRIT IS

RETURNED SHALL HAVE THE AUTHORITY AND THE
DUTY TO INQUIRE INTO THE FACTS AND THE LAW
PERTINENT TO THE LEGALITY OR ILLEGALITY OF
PETITIONER'S DETENTION AND TO ORDER HIS
DISCHARGE FROM CONFINEMENT, SHOULD IT
APPEAR SATISFACTORILY

"THAT HE IS

UNLAWFULLY IMPRISONED OR RESTRAINED.

When a writ of habeas corpus is,

conformably to law, made returnable to a
court other than that issuing the writ, the
court to which the writ is returned, or the
judge thereof, possesses full authority to
examine all issues raised in the case and
to settle the same.

Additional cases:
1. LACSON VS REYES, 182 SCRA 729:
Fee of executor or administrator;
attorneys fees; an administrator or
executor may be allowed fees for the
necessary expense he has incurred but he
may not recover attorneys fees from the
estate.

His compensation is fixed by the rule but

such compensation is in the nature of
executors or administrators commissions,
and never as attorneys fees.
Where the administrator is himself the
counsel of the heirs, it is the latter wh
must pay attorneys fees.

2. THE INTESTATE ESTATE OF

DOMINADOR DANAN VS BUENCAMINO,
110 SCRA 353
Filing by administratrix of an answer to
claimants contingent claims and asking
for postponement of the hearing for
presentation of her rebuttal evidence
constitutes estoppel and laches.
Probate court with discretion to allow
claims against the estate presented
beyond the period previously fixed
provided they are filed within one month
from expiration of period but not beyond
the date of entry of order of distribution.
Full dress hearing necessary to contest
contingent claims against the estate.
3. KALAW VS INTERMEDIATE APPELLATE
COURT, 213 SCRA 289
Accountability of administrator; rendering
of an accounting by an administrator of
his administration within one year from his
appointment is mandatory.
4. SAN PEDRO VS COURT OF APPEALS,
235 SCRA 145
JUDGMENTS IN EJECTMENT CASES WHICH ARE
FAVORABLE TO THE PLAINTIFF ARE IMMEDIATELY
EXECUTORY: THEY CAN BE STAYED BY THE
DEFENDANT ONLY BY:
A) Perfecting an appeal
B) Filing a supersedeas bond; and
C) Making a periodic deposit of the rental

or the reasonable compensation for the

use and occupation of the property
during the pendency of the appeal.
O
These requisites must concur.
O
Thus, even if the defendant had
appealed and filed a supersedeas
bond but failed to pay the accruing
rentals, the appellate court could,
upon motion of the plaintiff with
notice to the defendant, and upon
proof of such failure, order the
immediate execution of the
appealed decision without prejudice
to the appeal taking its course.
28

SPECPRO CASES NOTES

O

Such deposit, like the supersedeas

bond, is a mandatory requirement;
hence, if it is not complied with,
execution will issue as a matter of
right.
The only exceptions are the
existence of fraud, accident,
mistake or excusable negligence
which prevented the defendant

from making the monthly deposit,

or the occurrence of supervening
events which have brought about a
material change in the situation of
the parties and would make the
execution inequitable.

29