University of Cebu

College of Law
SPECIAL PROCEEDINGS

READING ASSIGNMENT
[For November 18, 2014]

A. TOPIC: Rule 72-73

B. CASES:

Pacific Banking Corp. v. CA, G.R. No. 109373, March 20, 1995 (242
SCRA 492)
Ordinary Civil Action is the act by which one sues another in a court of
justice for the enforcement or protection of a right, or the prevention or
redress of a wrong while special proceeding is the act by which one
seeks to establish the status or right of a party, or a particular fact.
Hence, action is distinguished from special proceeding in that the
former is a formal demand of a right by one against another, while the
latter is but a petition for a declaration of a status, right or fact.
Where a party litigant seeks to recover property from another,
his remedy is to file an action. Where his purpose is to seek
the appointment of a guardian for an insane, his remedy is a
special proceeding to establish the fact or status of insanity
calling for an appointment of guardianship.
A petition for liquidation of an insolvent corporation should be
classified a special proceeding and not an ordinary action. Such
petition does not seek the enforcement or protection of a right nor the
prevention or redress of a wrong against a party. It does not pray for
affirmative relief for injury arising from a party's wrongful act or
omission nor state a cause of action that can be enforced against any
person.
What it seeks is merely a declaration by the trial court of the
corporation's insolvency so that its creditors may be able to
file their claims in the settlement of the corporation's debts
and obligations. Put in another way, the petition only seeks a
declaration of the corporation's debts and obligations. Put in another
way, the petition only seeks a declaration of the corporation's state of
insolvency and the concomitant right of creditors and the order of
payment of their claims in the disposition of the corporation's assets.
Contrary to the rulings of the Fourteenth Division, liquidation
proceedings do not resemble petitions for interpleader. For one, an
action for interpleader involves claims on a subject matter against a
person who has no interest therein. This is not the case in a
liquidation proceeding where the Liquidator, as representative
of the corporation, takes charge of its assets and liabilities for
the benefit of the creditors. He is thus charged with insuring
that the assets of the corporation are paid only to rightful
claimants and in the order of payment provided by law.
Rather, a liquidation proceeding resembles the proceeding for the
settlement of state of deceased persons under Rules 73 to 91 of the
Rules of Court. The two have a common purpose: the determination
of all the assets and the payment of all the debts and liabilities
of the insolvent corporation or the estate. The Liquidator and the
administrator or executor are both charged with the assets for the

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 benefit of the claimants. In both instances, the liability of the
corporation and the estate is not disputed. The court's concern is with
the declaration of creditors and their rights and the determination of
their order of payment.
In G.R. No. 112991 (the case of the Stockholders/Investors), the
Liquidator's notice of appeal was filed on time, having been filed on the
23rd day of receipt of the order granting the claims of the
Stockholders/Investors. However, the Liquidator did not file a record on
appeal with the result that he failed to perfect his appeal. As already
stated a record on appeal is required under the Interim Rules
and Guidelines in special proceedings and for cases where
multiple appeals are allowed. The reason for this is that the
several claims are actually separate ones and a decision or
final order with respect to any claim can be appealed.
Necessarily the original record on appeal must remain in the
trial court where other claims may still be pending.
The Union's contention is untenable. In liquidation proceedings, the
function of the trial court is not limited to assisting in the
implementation of the orders of the Monetary Board. Under the same
section (29) of the law invoked by the Union, the court has authority
to set aside the decision of the Monetary Board "if there is a convincing
proof that the action is plainly arbitrary and made in bad faith."

Republic v. CA, G.R. No. 163604, May 6, 2005

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
courts order sufficed.
There is no need to file a record on appeal to appeal the decision
declaring the presumptive death of the absent spouse for purposes of
contracting a subsequent marriage.
A petition for declaration of the presumptive death of a person
which requires a summary proceeding is an ordinary action. In
which case, period to appeal is 15 days from notice or decision
or final order appealed from and the appeal is perfected by
filing a notice of appeal. There is no need to file with the trial
court a record on appeal to perfect its appeal.

Vda. de Reyes v. CA, G.R. No. L-47027, January 27, 1989 (169 SCRA
524)-
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.
As a rule, no amendment or correction may be made by the
court in its judgment once the latter had become final. The
correction of a clerical error is an exception, in which case,
clerical errors or mistakes or omission plainly due to
inadvertence or negligence may be corrected or supplied even

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 after the judgment has been entered. 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.
If there are remaining estates undistributed, parties may re-open the
case.
Establish: fact of death, residence, if not a resident, the location of the
properties, the debts, liabilities, credits, heirs.

Uriarte v. CFI, G.R. Nos. L-21938-39, October 29, 1970 (33 SCRA
252)-
Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of
First Instance have original exclusive jurisdiction over "all matters of
probate," that is, over special proceedings for the settlement of the
estate of deceased persons whether they died testate or intestate.
The matter of venue, or the particular Court of First Instance where the
special proceeding should be commenced, is regulated by former Rule
75, Section 1 of the Rules of Court, now Section 1, Rule 73 of the
Revised Rules of Court, which provides that the estate of a decedent
inhabitant of the Philippines at the time of his death, whether a citizen
or an alien, shall be in the court of first instance 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.
In accordance with settled jurisprudence in this jurisdiction,
testate proceedings, for the settlement of the estate of a
deceased person take precedence over intestate proceedings
for the same purpose. Thus it has been held repeatedly that, 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, the
latter being required to render final account and turn over the estate in
his possession to the executor subsequently appointed. This, however,
is understood to be without prejudice that should the alleged last will
be rejected or is disapproved, the proceeding shall continue as an
intestacy.
Where intestate proceedings before a court of first instance
the probate of the will
had already been commenced,
should be filed in the same court, either in a
separate special proceeding or in an appropriate motion for
said purpose filed in the already pending intestate proceeding.
This is especially true where the party seeking the probate of the will
had been informed or had knowledge of the pendency of the intestate
proceedings. It is not in accord with public policy and the orderly and
inexpensive administration of justice to unnecessarily multiply
litigation, especially if several courts would be involved, which would
be the result if the probate of will were filed in another court. (Convert
the intestate into testate proceeding praying that the will be allowed
probate.)
It is well-settled in this jurisdiction that wrong venue is merely
a waiveable procedural defect, and such waiver may occur by

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 laches where, a party had been served notice of the filing of
the probate petition for about a year and allowed the
proceedings to continue for such time before filing a motion to
dismiss the same.
We can not accept petitioner's contention in this regard that
the latter court had no jurisdiction to consider said petition,
albeit we say that it was not the proper venue therefor.
A party claiming to be an acknowledged natural child of testator is
entitled to intervene in proceedings for the probate of will of testator 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 a natural child of 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.

Roberts v. Leonidas, G.R. No. L-55509, April 27, 1984 (129 SCRA 33)
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"
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.

Advincula v. Teodoro, G.R. No. L-9282, May 31, 1956, (99 Phil 413)-
The provision of Section 4 of Rule 70 of the Rules of Court which
provides that 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, cannot be
enforced, until after said document has been allowed to
probate.
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.
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. At any rate, Advincula is not a stranger, either to her or to her
estate, he bring her surviving spouse and, as such, one of her forced
heirs (Arts. 887, 888, 892, 893, 894, 897 to 900, and 995 to 1001, Civil
Code of the Philippines), whether she died testate or intestate. What is
more, he is prima facie entitled to one-half of all property subject to
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 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.

Lim vs. CA, G.R. No. 124715, January 24, 2000 (323 SCRA 102)-
The determination of which court exercises jurisdiction over
matters of probate depends upon the gross value of the estate
of the decedent.
Inasmuch as the real properties included in the inventory of the estate
of the Late Pastor Y. Lim are in the possession of and are registered
in the name of private respondent corporations, which under the law
possess a personality separate and distinct from their stockholders,
and in the absence of any cogency to shred the veil of corporate
fiction, the presumption of conclusiveness of said titles in favor of
private respondents should stand undisturbed.
Mere ownership by a single stockholder or by another corporation of all
or nearly all of the capital stock of a corporation is not of itself a
sufficient reason for disregarding the fiction of separate corporate
personalities
Granting arguendo that the Regional Trial Court in this case was not
merely acting in a limited capacity as a probate court, petitioner
nonetheless failed to adduce competent evidence that would have
justified the court to impale the veil of corporate fiction. Truly, the
reliance reposed by petitioner on the affidavits executed by Teresa Lim
and Lani Wenceslao is unavailing considering that the aforementioned
documents possess no weighty probative value pursuant to the
hearsay rule. Besides it is imperative for us to stress that such
affidavits are inadmissible in evidence inasmuch as the affiants were
not at all presented during the course of the proceedings in the lower
court. To put it differently, for this Court to uphold the admissibility of
said documents would be to relegate from Our duty to apply such basic
rule of evidence in a manner consistent with the law and
jurisprudence.
PRELIMINARY DETERMINATION OWNERSHIP: The settlement court may
pass upon the title only for purposes of determining whether the
property may or may not be included in the inventory.

Consolidated Bank v. IAC, G.R. No. 75017, June 3, 1991 (198 SCRA
34)-
Questions or issues relating to venue of actions are basically governed
by Rule 4 of the Revised Rules of Court. It is said that the laying of
venue is procedural rather than substantive. It relates to the
jurisdiction of the court over the person rather than the subject matter.
Provisions relating to venue establish a relation between the
plaintiff and the defendant and not between the court and the
subject matter. Venue relates to trial not to jurisdiction,
touches more of the convenience of the parties rather than the
substance of the case.
The action in the present case pertains to the probate of the
intestate estate of the late Don Vicente Madrigal, in which

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 case a regional trial court properly has jurisdiction over the
case, both under the Judiciary Act of 1948, Sec. 44 (e) and
under BP 129, Sec. 19(4).
Objection to improper venue should be made in a motion to dismiss.
Until this is done, venue cannot truly be said to have been improperly
laid.
Regrettably, therefore, while We agree with the petitioner that
venue in this case should have been laid in Quezon City,
petitioner's inaction has worked against it: It is well-settled in
this jurisdiction that wrong venue is merely a waiveable
procedural defect, and such waiver may occur by laches . .
The submission of pleadings before Pasay Court is deemed a waiver on
the questions of improper venue.

Jao v. CA, G.R. No. 128314, May 29, 2002 (382 SCRA 407)
The main issue before us is: where should the settlement proceedings
be had --- in Pampanga, where the decedents had their permanent
residence, or in Quezon City, where they actually stayed before their
demise.
Clearly, the estate of an inhabitant of the Philippines shall be settled or
letters of administration granted in the proper court located in the
province where the decedent resides at the time of his death.
Venue for ordinary civil actions and that for special
proceedings have one and the same meaning.
Residence means nothing more than a persons actual residence or
place of abode, provided he resides therein with continuity and
consistency.
The recitals in the death certificates, which are admissible in evidence,
were thus properly considered and presumed to be correct by the
court a quo. We agree with the appellate courts observation that since
the death certificates were accomplished even before petitioner and
respondent quarreled over their inheritance, they may be relied upon
to reflect the true situation at the time of their parents death.
The death certificates thus prevailed as proofs of the decedents
residence at the time of death, over the numerous documentary
evidence presented by petitioner. To be sure, the documents presented
by petitioner pertained not to residence at the time of death, as
required by the Rules of Court, but to permanent residence or
domicile.
It does not necessarily follow that the records of a persons properties
are kept in the place where he permanently resides. Neither can it be
presumed that a persons properties can be found mostly in the place
where he establishes his domicile. It may be that he has his domicile in
a place different from that where he keeps his records, or where he
maintains extensive personal and business interests. No
generalizations can thus be formulated on the matter, as the question
of where to keep records or retain properties is entirely dependent
upon an individuals choice and peculiarities.
What if it was filed in Pampanga, the permanent residence: PLAUSIBLE
(Rodolfo may question: pwedi bikilon, lalisonon). This is a MATTER OF
VENUE.

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Heirs of Sandejas v. Lina, G.R. No. 141634, February 5, 2001 (351
SCRA 183)
Issue: WON the CA erred in modifying the trial courts Decision
and in obligating petitioners to sell 3/5 of the disputed
properties to respondent, even if the suspensive condition had
not been fulfilled.
No. The agreement between the deceased Eliodoro Sandejas Sr.
and respondent was not a contract to sell but a conditional sale.
In a contract to sell, the payment of the purchase price is a
positive suspensive condition. The vendors obligation to convey
the title does not become effective in case of failure to pay. The
agreement between Eliodoro Sr. and respondent is subject to a
suspensive condition -- the procurement of a court approval, not
full payment. There was no reservation of ownership in the
agreement. In accordance with paragraph 1 of the Receipt,
petitioners were supposed to deed the disputed lots over to
respondent. This they could do upon the courts approval, even
before full payment. Hence, their contract was a conditional
sale, rather than a contract to sell as determined by the CA.
When a contract is subject to a suspensive condition, its birth or
effectivity can take place only if and when the condition happens
or is fulfilled. Thus, the intestate courts grant of the Motion for
Approval of the sale filed by respondent resulted in petitioners
obligation to execute the Deed of Sale of the disputed lots in his
favor. The condition having been satisfied, the contract was
perfected. Henceforth, the parties were bound to fulfill what
they had expressly agreed upon.
Court approval is required in any disposition of the decedent s
estate per Rule 89 of the Rules of Court. Reference to judicial
approval, however, cannot adversely affect the substantive
rights of heirs to dispose of their own pro indiviso shares in the
co-heirship or co-ownership. In other words, they can sell their
rights, interests or participation in the property under
administration.
A stipulation requiring court approval does not affect the validity
and the effectivity of the sale as regards the selling heirs. It
merely implies that the property may be taken out of custodia
legis, but only with the courts permission.
Thus, we are not persuaded by petitioners argument that the
obligation was converted into a mere monetary claim since the
sale was approved by the intestate court.
Because petitioners did not consent to the sale of their ideal
shares in the disputed lots, the CA correctly limited the scope of
the Receipt to the pro-indiviso share of Eliodoro Sr. Thus, it
correctly modified the intestate courts ruling by excluding their
shares from the ambit of the transaction.
Issue: WON the CA erred in clothing the settlement court with
the jurisdiction to approve the sale and to compel petitioners
to execute the Deed of Sale.
No. Section 8 of Rule 89 allows this action to proceed. Probate
jurisdiction covers all matters relating to the settlement of
estates (Rules 74 & 86-91) and the probate of wills (Rules 75-77)
of deceased persons, including the appointment and the removal
of administrators and executors (Rules 78-85). It also extends to
matters incidental and collateral to the exercise of a probate

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 courts recognized powers such as selling, mortgaging or
otherwise encumbering realty belonging to the estate. Indeed,
the rules on this point are intended to settle the estate in a
speedy manner, so that the benefits that may flow from such
settlement may be immediately enjoyed by the heirs and the
beneficiaries.
In the present case, the Motion for Approval was meant to settle
the decedents obligation to respondent; hence, that obligation
clearly falls under the jurisdiction of the settlement court. To
require respondent to file a separate action -- on whether
petitioners should convey the title to Eliodoro Sr. s share of the
disputed realty -- will unnecessarily prolong the settlement of the
intestate estates of the deceased spouses.
The suspensive condition did not reduce the conditional sale
between Eliodoro Sr. and respondent to one that was not a
definite, clear and absolute document of sale, as contended by
petitioners. Upon the occurrence of the condition, the
conditional sale became a reciprocally demandable obligation
that is binding upon the parties.
WON the settlement court allegedly erred in entertaining and granting
respondents Motion for Approval by arguing that only the executor or
administrator is authorized to apply for the approval of a sale of realty
under administration.
We read no such limitation. Section 8 of Rule 89 mentions only
an application to authorize the conveyance of realty under a
contract that the deceased entered into while still alive. While
this Rule does not specify who should file the application, it
stands to reason that the proper party must be one who is to be
benefited or injured by the judgment, or one who is to be entitled
to the avails of the suit.
This provision should be differentiated from Sections 2 and 4 of
the same Rule, specifically requiring only the executor or
administrator to file the application for authority to sell,
mortgage or otherwise encumber real estate for the purpose of
paying debts, expenses and legacies (Section 2); or for authority
to sell real or personal estate beneficial to the heirs, devisees or
legatees and other interested persons, although such authority is
not necessary to pay debts, legacies or expenses of
administration (Section 4).
WON Eliodoro Sr. was in bad faith.
No. Eliodoro Sr. did not misrepresent these lots to respondent as
his own properties to which he alone had a title in fee simple.
The fact that he failed to obtain the approval of the conditional
sale did not automatically imply bad faith on his part.
WON Eliodoros share is 11/20 or 3/5 of the disputed lots.
Eliodoros share should be 11/20 of the entire property. As the
conjugal partner of Remedios, he owned one half of these lots
plus a further one tenth of the remaining half, in his capacity as a
one of her legal heirs. The CA erred when it computed Eliodoros
share as an heir based on one tenth of the entire disputed
property. It should be based only on the remaining half, after
deducting the conjugal share.
The rights of the heirs to succession accrued at the moment of death.
However, there shall first a settlement of the estate.

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 Vda. de Manalo v. CA, G.R. No. 129242, January 16, 2001
Issue: WON the respondent Court of Appeals erred in upholding the
questioned orders of the respondent trial court which denied their
motion for the outright dismissal of the petition for judicial settlement
of estate despite the failure of the petitioners therein to aver that
earnest efforts toward a compromise involving members of the same
family have been made prior to the filing of the petition but that the
same have failed.
It is a fundamental rule that in the determination of the nature of
an action or proceeding, the averments15 and the character of
the relief sought 16 in the complaint, or petition, as in the case
at bar, shall be controlling. A careful srutiny of the Petition for
Issuance of Letters of Administration, Settlement and Distribution
of Estatein SP. PROC. No. 92-63626 belies herein petitioners'
claim that the same is in the nature of an ordinary civil action.
The said petition contains sufficient jurisdictional facts required
in a petition for the settlement of estate of a deceased person
such as (1) the fact of death of the late Troadio Manalo on
February 14, 1992, as well as his (2) residence in the City of
Manila at the time of his said death. The fact of death of the
decedent and of his residence within he country are foundation
facts upon which all the subsequent proceedings in the
administration of the estate rest. The petition is SP.PROC No. 92-
63626 also contains an (3)enumeration of the names of his legal
heirs including (4) a tentative list of the properties left by the
deceased which are sought to be settled in the probate
proceedings. In addition, the relief's prayed for in the said
petition leave no room for doubt as regard the intention of the
petitioners therein (private respondents herein) to seek judicial
settlement of the estate of their deceased father, Troadio Manalo.
So it should be in the instant petition for settlement of estate.
Private respondents merely seek to establish the fact of death of
their father and subsequently to be duly recognized as among
the heirs of the said deceased so that they can validly exercise
their right to participate in the settlement and liquidation of the
estate of the decedent consistent with the limited and special
jurisdiction of the probate court.
It is our view that herein petitioners may not be allowed to defeat
the purpose of the essentially valid petition for the settlement of
the estate of the late Troadio Manalo by raising matters that are
irrelevant and immaterial to the said petition.
Claims for damages cannot be filed-limited jurisdiction.
WON earnest efforts toward a compromise have been made
involving members of the same family prior to the filing of the
petition pursuant to Article 222 of the Civil Code of the
Philippines is applicable to special proceeding for the
settlement of estate of a deceased person.
Herein petitioners may not validly take refuge under the
provisions of Rule 1, Section 2, of the Rules of Court to justify the
invocation of Article 222 of the Civil Code of the Philippines for
the dismissal of the petition for settlement of the estate of the
deceased Troadio Manalo inasmuch as the latter provision is
clear enough

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 Art. 222 is applicable only to ordinary civil actions. This is clear
from the term 'suit' that it refers to an action by one person or
persons against another or other 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. A civil action is thus an action filed in a court of
justice, whereby a party sues another for the enforcement of a
right, or the prevention or redress of a wrong.24 Besides, an
excerpt form the Report of the Code Commission unmistakably
reveals the intention of the Code Commission to make that legal
provision applicable only to civil actions which are essentially
adversarial and involve members of the same family.

Reyes v. Reyes, G.R. No. 139587, November 22, 2000 (354 SCRA
541)
Issue: WON the Court a quo committed a reversible error when
it included the Arayat properties in the inventory of the estate
of Ismael Reyes despite the overwhelming evidence presented
by petitioner-oppositor Oscar Reyes proving his claim of
ownership.
The title of the property is still in name of the decedent. The
Court has the jurisdiction to include. The claim
The respondent Court did not err in affirming the provisional
inclusion of the subject properties to the estate of the deceased
Ismael Reyes without prejudice to the outcome of any action to
be brought thereafter in the proper court on the issue of
ownership considering that the subject properties are still titled
under the torrens system in the names of spouses Ismael and
Felisa Revita Reyes which under the law is endowed with
incontestability until after it has been set aside in the manner
indicated in the law. The declaration of the provisional character
of the inclusion of the subject properties in the inventory as
stressed in the order is within the jurisdiction of the Probate
Court.
Thus, for the purpose of determining whether a certain property
should or should not be included in the inventory of estate
proceeding, 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.
WON the claimant and all other parties having legal interest in
the property consent, expressly or impliedly, to the submission
of the question to the Probate Court for adjudgment.
GR: Settled is the rule that the Regional Trial Court acting as a
probate court exercises but limited jurisdiction, thus it has no
power to take cognizance of and determine the issue of title to
property claimed by a third person adversely to the decedent.
EXCEPTION: The claimant and all 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.
The facts obtaining in this case, however, do not call for the
application of the exception to the rule. Notably, the Probate
Court stated, from the start of the hearing, that the hearing was

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 for the merits of accounting and inventory, thus it had
jurisdiction to hear the opposition of Oscar Reyes to the
inventory as well as the respective evidence of the parties to
determine for purposes of inventory alone if they should be
included therein or excluded therefrom. In fact, the probate court
in its Order stated that for resolution is the matter of the
inventory of the estate, mainly to consider what properties
should be included in the inventory and what should not be
included. There was nothing on record that both parties
submitted the issue of ownership for its final resolution.

PCIB v. CA, G.R. No. 103149, November 15, 2000

Sec. 7, Rule 86
Issue: WON petitioner was not given sufficient opportunity to
fill an answer in opposition to the application for preliminary
injunction due to its belated receipt of the complaint in
intervention.
No. Since PCIB received a copy of the complaint-in intervention
on November 23, 1990, there was ample time to prepare an
answer for the hearing set on December 4, 1990.
Issue: WON the hearing on the application for injunctive writ
should not proceed due to the non-joinder of issues.
No. The Rules of Court do not require that issues be joined before
preliminary injunction may issue. Preliminary injunction may
be granted at any stage of an action or proceeding prior to the
judgment or final order, ordering a party or a court, agency or a
person to refrain from a particular act or acts. For as long as the
requisites for its issuance are present in the case, such issuance
is valid.
Issue: WON the writ of injunction issued by the trial court
effectively adjudicated ownership of the mortgaged property
in favor of respondent Blanquita Ang.
No. It is only upon expiration of the redemption period,
without the judgment debtor having made use of his
right of redemption, that ownership of the land sold in a
foreclosure sale becomes consolidated in the purchaser.
The probate court issued the writ to enjoin petitioner and other
concerned parties from performing any act which would directly
or indirectly enforce the effects of the extra-judicial foreclosure
of decedents property caused by petitioner bank, in order to
preserve the estate of the decedent. Consolidation of title would
have the consequence of transferring ownership since the buyer
in a foreclosure sale becomes the absolute owner of the property
purchased if it is not redeemed during the period of one year
after the registration of the sale. Therefore, at the time the
writ was issued there was yet no issue regarding
ownership because the period for redemption had not
lapsed.
Nevertheless, the probate court may pass upon and determine
the title or ownership of a property which may or may not be
included in the estate proceedings, but such determination is
provisional in character and is subject to final decision in a

11
 separate action to resolve title. Thus, the allegations of Blanquita
Ang that her signatures on the real estate mortgage documents
were forged may be ventilated in a separate proceeding,
requiring the presentation of clear and convincing evidence.
Issue: WON the writ may not issue because of the prior
issuance of a temporary restraining order by the Court of
Appeals.
No, the Court of Appeals, however, later on withdrew its
temporary restraining order and sustained the injunction issued
by the trial court. The grant or denial of an injunction rests in
the sound discretion of the court. Considering that there were
factual reasons necessitating the issuance of the writ, we find
that the Court of Appeals did not err in affirming the issuance of
an injunction.

De Leon v. CA, G.R. No. 128781, August 6, 2002 (386 SCRA 216)-
The Order to include certain property in the inventory is
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.
A probate court, whether in a testate or intestate proceeding, can only
pass upon questions of title provisionally. The rationale therefor and
the proper recourse of the aggrieved party are expounded in Jimenez v.
Court of Appeals:
"The patent reason is the probate courts limited jurisdiction and the
principle that 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.
"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.
The Court held in Valero Vda. de Rodriguez v. Court of Appeals that 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.
The Order of Collation can only be considered final when all the debts
and expenses have been paid.

Uy v. Capulong, A.M. No. RTJ-91-776, April 7, 1993 (221 SCRA 87)

Probate Court has no jurisdiction over question of ownership where
property allegedly belonging to the estate is claimed by another
person. When questions arise as to ownership of property alleged to
be part of the estate of a deceased person, but claimed by some other
12
 person to be his property, not by virtue of any right of inheritance from
the deceased but by title adverse to that of the deceased and his
estate, such questions cannot be determined in the courts of
administration proceedings. The trial court, acting as probate court,
has no jurisdiction to adjudicate such contentions, which must be
submitted to the trial court in the exercise of its general jurisdiction.
In cancelling the titles of complainants over their properties on mere
motion of a party and without affording them due process, respondent
Judge violated her sworn obligation to uphold the law and promote the
administration of justice.
What if there is a separate proceeding filed but it was raffled to the
same judge? The hearing may be done or calendared at the same time
for purposes of convenience but they should not be consolidated for
they still have separate records.

Enderes v. CA, G.R. No. 128525, December 17, 1999 (321 SCRA 178)
Issue: WON the Court of Appeals erred in upholding the SEC
when it ruled that petitioners had not established clear
existing legal rights to entitle them to a writ of injunction to
enjoin private respondents from exercising their rights as
stockholders on record of Philinterlife.
No. We agree with the findings of the SEC as affirmed by the
Court of Appeals that petitioners failed not only to establish a
threatened violation of a right but they also failed to discharge
the burden of clearly showing the right to be protected. On the
mere contention that the shareholdings of private respondents
belong to the estate of the late Dr. Ortaez which is still the
subject of settlement before the Regional Trial Court of Quezon
City, petitioners had not established their clear legal rights to
obtain injunctive relief against private respondents. Injunction,
whether preliminary or final, is not designed to protect
contingent or future rights.
Records show that neither the estate of Dr. Ortaez nor the
Special Administratrix Ma. Divina Enderes was a party in the
main case docketed as SEC Case No. 11-94-49099 before the
Securities and Exchange Commission. Not being a party in the
proceedings below, the Special Administratrix does not have any
legal personality to seek a review by this court of the decisions of
the SEC and the Court of Appeals
Injunction may issue pendente lite only in cases of extreme
urgency, where the right to the possession, during the pendency
of the main case, of the property involved is very clear; where
considerations of relative inconvenience bear strongly in favor of
the complainant seeking the possession of the property
pendente lite; where there was willful and unlawful invasion on
plaintiffs right, over his protest and remonstrance, the injury
being a continuing one.
Before an injunction can be issued, it is essential that the
following requisites be present: (1) there must be a right in esse
or the existence of a right to be protected; and (2) the act
against which injunction is to be directed is a violation of such
right.

13
 Notwithstanding the proceedings being conducted by the
intestate court, the petitioners rights or interests over the
estate or over the assailed shareholdings in the name of private
respondents are still future and unsettled rights which cannot be
protected by the writ of injunction. The rule is well settled that
the jurisdiction of the regional trial court as a probate or intestate
court relates only to matters having to do with the settlement of
the estate and probate of will of deceased persons but does not
extend to the determination of questions of ownership that arise
during the proceedings. The intestate court may pass upon the
title to a certain property for the purpose of determining whether
the same should or should not be included in the inventory but
such determination is not conclusive and is subject to final
decision in a separate action regarding ownership which may be
constituted by the parties. The court in charge of the intestate
proceedings 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. Therefore, the possibility of
irreparable damage without proof of violation of an actually
existing right of petitioners over the shareholdings presently in
the possession of private respondents is no ground for an
injunction being a mere damnum absque injuria.
Records show that they have been stockholders of Philinterlife
since 1983 up to the present. It was only in 1994 that petitioners
sought the annulment of the shareholdings of private
respondents before the SEC. The grant of the writ of injunction
against private respondents by restraining them from exercising
their rights as stockholders would in effect dispose of the main
case without a trial.

Cortes v. CA, G.R. No. 117417, September 21, 2000 (340 SCRA 715)
The long standing rule is that probate courts or those in
charge of proceedings whether testate or intestate, cannot
adjudicate or determine title to properties claimed to be part
of the estate and which are claimed to belong to outside
parties. Stated otherwise, "claims for title to, or right of possession of,
personal or real property, made by the heirs themselves, by title
adverse to that of the deceased, or made by third persons, cannot be
entertained by the (probate) court."
In the present case, however, private respondent Menandro A. Reselva,
who refused to vacate the house and lot being eyed as part of the
estate of the late Teodoro T. Reselva, cannot be considered an "outside
party" for he is one of the three compulsory heirs of the former. As
such, he is very much involved in the settlement of Teodoro's estate.
By way of exception to the above-mentioned rule, when the
parties are all heirs of the decedent, it is optional upon them
to submit to the probate court the question of title to
property. Here, the probate court is competent to decide the
question of ownership. More so, when the opposing parties
belong to the poor stratum of society and a separate action
would be most expensive and inexpedient.
In the same way, when the controversy is whether the property in
issue belongs to the conjugal partnership or exclusively to the
decedent, the same is properly within the jurisdiction of the probate
court, which necessarily has to liquidate the conjugal partnership in

14
 order to determine the estate of the decedent which is to be
distributed among the heirs.
Consequently, this case before us should be returned to the probate
court for the liquidation of the conjugal partnership of Teodoro and
Lucrecia Reselva prior to the settlement of the estate of Teodoro.
The controversy may be settled by the Settlement Court by liquidating
the conjugal properties of their parents.

Solivio v. CA, G.R. No. 83484, February 12, 1990

Issue: WON Branch 26 of the RTC of Iloilo had jurisdiction to
entertain Civil Case No. 13207 for partition and recovery of
Concordia Villanueva's share of the estate of Esteban
Javellana, Jr. even while the probate proceedings (Spl. Proc.
No. 2540) were still pending in Branch 23 of the same court.
The orders of the Regional Trial Court, Branch 26, in Civil Case
No. 13207 setting aside the probate proceedings in Branch 23
(formerly Branch 11) on the ground of extrinsic fraud, and
declaring Concordia Villanueva to be a co-heir of Celedonia to the
estate of Esteban, Jr., ordering the partition of the estate, and
requiring the administratrix, Celedonia, to submit an inventory
and accounting of the estate, were improper and officious, to
say the least, for these matters he within the exclusive
competence of the probate court.
We find merit in the petitioner's contention that the Regional Trial
Court, Branch 26, lacked jurisdiction to entertain Concordia
Villanueva's action for partition and recovery of her share of the
estate of Esteban Javellana, Jr. while the probate proceedings
(Spl, Proc. No. 2540) for the settlement of said estate are still
pending in Branch 23 of the same court, there being as yet no
orders for the submission and approval of the administratix's
inventory and accounting, distributing the residue of the estate
to the heir, and terminating the proceedings.
In the interest of orderly procedure and to avoid confusing and
conflicting dispositions of a decedent's estate, a court should not
interfere with probate proceedings pending in a co-equal court.
Her remedy when the court denied her motion, was to
elevate the denial to the Court of Appeals for review on
certiorari. However, instead of availing of that remedy,
she filed more than one year later, a separate action for
the same purpose in Branch 26 of the court. We hold that
the separate action was improperly filed for it is the probate
court that has exclusive jurisdiction to make a just and legal
distribution of the estate.
Pimentel v. Palanca, 5 Phil. 436: A separate action for the
declaration of heirs is not proper.
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 , 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.
The decision of the trial court and the Court of Appeals are hereby SET
ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban

15
 Javellana, Jr. entitled to one-half of his estate. However, comformably
with the agreement between her and her co-heir, Celedonia Solivio, the
entire estate of the deceased should be conveyed to the "Salustia
Solivio Vda. D Javallana Foundation," of which both the petitioner and
the private respondent shall be trustees, and each shall be entitled to
nominate an equal number of trustees to constitute th Board of
Trustees of the Foundation which shall administer the same for the
purposes set forth in its charter. The petitioner, as administratrix of the
estate, shall submit to the probate court an inventory and accounting
of the estate of the deceased preparatory to terminating the
proceedings therein.

Vita v. Montano, G.R. No. L-50553 February 19, 1991 (194 SCRA 180)
We are in conformity with the finding of the trial court that the three
(3) parcels of land mentioned in the complaint were paraphernal
properties of Isidra Montanano, being supported by documentary and
testimonial evidence.
In this connection, contrary to the trial court's ruling, it is not necessary
to file a separate proceeding in court for the proper disposition of the
estate of Isidra Montanano. Under Rule 73, Section 2 of the Rules of
Court, if both spouses have died, the conjugal partnership shall be
liquidated in the testate or intestate proceedings of either. In the
present case, therefore, the conjugal partnership of Isidra Montanano
and Edilberto Vita should be liquidated in the testate proceedings of
the latter.

Eastern Shipping v. Lucero, G.R. No. L-60101, August 31, 1983

There is thus enough evidence to show the circumstances attending
the loss and disappearance of the M/V Eastern Minicon and its crew.
The foregoing facts, quite logically, are sufficient to lead Us to a moral
certainty that the vessel had sunk and that the persons aboard had
perished with it. Upon this premise, the rule on presumption of
death under Article 391 (1) of the Civil Code must yield to the
rule of preponderance of evidence. As this Court said in Joaquin vs.
Navarro: Where there are facts, known or knowable, from which
a rational conclusion can be made, the presumption does not
step in, and the rule of preponderance of evidence controls.
If in the foregoing criminal cases, where the proof required for
conviction must be beyond reasonable doubt, the rule of presumption
was not applied and the fact of death was deemed established, with
more reason is this Court justified in entering a finding of death.
Indeed, We cannot permit Article 391 to override, or be substituted for,
the facts established in this case which logically indicate to a moral
certainty that Capt. Lucero died shortly after he had sent his last radio
message at 9:50 p.m. on February 16, 1980.

RULE 74 CASES (de Leon Notes)

Arcillas v. Montejo, 26 SCRA 197 (1968)

The fact that an intestate estate has no debts does not preclude from
instituting administration proceedings. Extrajudicial settlement of

16
 estate is merely discretionary on the part of the heirs. Delay and
expenses are not grounds to deny a petition for administration.
Probate still can be useful because the truth or veracity of claims
relating to other properties can be more adequately ascertained in
administration proceedings.

De Garces v. Broce, 23 SCRA 612 (1968

The effectivity between the heirs of an extrajudicial settlement is not
dependent on the registration of the agreement. Registration is
necessary only to affect 3rd parties and creditors and to protect
creditors and the heirs against tardy claims. As between the heirs, an
unregistered 1st partition prevails over a 2nd partition even if
registered. The requirement of a public instrument instrment is merely
evidentiary against 3rd parties.

McMicking v. Sy Conbieng, 21 Phil. 211 (1912)

After partition, the administrator is stripped of all responsibility to the
estate, its creditors, the heirs and the court. Concurrently, his surety is
completely discharged. The only requisite for a partition is that the
estate has no debts. Finally, after partition, a claim is allowed only if
discovered within 2 years from partition and the claimant moves for
appointment of a new administrator.

Lajom v. Viola, 73 Phil. 563 (1942)

A judicial partition does not bind the heirs who were not parties
thereto. The heir who has been deprived of his share may bring an
action for reinvidication within 10 years. Similarly, an heir who had
knowledge of the partition, but was deceived by a participating heir
into not questioning the partition may bring an action for reinvidication
within 10 years.

Jerez v. Nietes, 30 SCRA 905 (1969)

An approved project of partition may be reopened upon motion for
intervention (not an independent action) by a preterited heir. However,
such a motion must be supported by proof, and not just allegations, of
the interest of the movants to justify reopening of the probate
proceedings.

Gerona v. de Guzman, 11 5CRA 153 (1964)

Fraud in the execution of a deed of extra-judicial settlement is demed
to have been discovered from its registration.

Hernandez v. Andal, 78 Phil. 196 (1947)

Between the parties, an oral partition is valid and may be proved by
parol evidence. Partition is not covered by the statute of frauds
because it is not a convweyance but simply a separation and
designation of that part of the land which belongs to each tenant in

17
 common. Besides, the statute of frauds does not apply to executed
contracts, whether complete or partial.

Torres v. Torres, 10 SCRA 185 (1964)

Where the estate had no debts and the heirs have entered into an
extrajudicial settlement of estate, but are unable to agree on the
physical segregation of the property, the remedy is not estate
proceedings but an action for partition.

Carreon v. Agcaoili, 1 SCRA 521 (1961)

Where more than 2 years have passed since the estate was settled by
an affidavit of self-adjudication, the lien of unduly excluded heirs on
property of the estate becomes functus oficio. Any annotation of such
lien on titles to property is rendered ineffective. The title of a good
faith buyer of such property who bought the property after 2 year
period can not be questioned.

Sampilo v. CA, 103 Phil. 70 (1958)

The 2 year period for unduly excluded persons to question an
extrajudicial settlement of an estate applies only to those who
participated in the settlement.
de Leon: Note that in Carreon, the court ruled that the buyer of the
property was in good faith. In Sampilo, there was a finding that the
buyer was aware that there had been excluded heirs. I think the
Sampilo ruling is the prevailing doctrine because Rule 74 Sec. 1 states
that: Sec. 1. xxx no extrajudicial settlement shall be binding upon any
person who has not participated therein or had no notice thereof.

RULE 74- 76

Rodriguez v. Tan, G.R. No. L-6044, November 24, 1952 (92 Phil 273)
Section 1 does not preclude the heirs from instituting administration
proceedings, even if the estate has no debts or obligations, if they do
not desire to resort for good reasons to an ordinary action of partition.
While section 1 allows the heirs to di vide the estate among
themselves as they may see fit, or to resort to an ordinary
action of partition, it does not compel them to do so if they
have good reasons to take a different course of action. Said
section is not mandatory or compulsory as may be gleaned from the
use made therein of the word may. If the intention were otherwise the
framer of the rule would have employed the word shall as was done in
other provisions that are mandatory in character. Note that the word
may is used not only once but in the whole section which indicates an
intention to leave the matter entirely to the discretion of the heirs.

Pereira v. CA, G.R. No. L-81147 June 20, 1989 (174 SCRA 154)

18
 The trial court is in the best position to receive evidence on the
discordant contentions of the parties as to the assets of the decedent's
estate, the valuations thereof and the rights of the transferees of some
of the assets, if any. The function of resolving whether or not a certain
property should be included in the inventory or list of properties to be
administered by the administrator is one clearly within the competence
of the probate court. However, the court's determination is only
provisional in character, not conclusive, and is subject to the final
decision in a separate action which may be instituted by the parties.
Judicial administration and appointment of an administrator are
superfluous when the deceased died without debts.
It should be noted that recourse to an administration proceeding even
if the estate has no debts is sanctioned only if the heirs have good
reasons for not resorting to an action for partition. Where partition is
possible, either in or out of court, the estate should not be burdened
with an administration proceeding without good and compelling
reasons.
The only conceivable reason why private respondent seeks
appointment as administratrix is for her to obtain possession of the
alleged properties of the deceased for her own purposes, since these
properties are presently in the hands of petitioner who supposedly
disposed of them fraudulently. We are of the opinion that this is
not a compelling reason which will necessitate a judicial
administration of the estate of the deceased.
We, therefore, hold that the court below before which the
administration proceedings are pending was not justified in issuing
letters of administration, there being no good reason for burdening the
estate of the deceased Andres de Guzman Pereira with the costs and
expenses of an administration proceeding.
The sister may file a civil action for partition.

Cease v. CA,G.R. No. L-33172 October 18, 1979 (93 SCRA 483)
Issue: WON there was an irregular and arbitrary termination and
dismissal of the special proceedings for judicial administration
simultaneously ordered in the lower court s decision in Civil Case No.
6326 adjudicating the partition of the estate, without categorically,
reasoning the opposition to the petition for administration.
No. The propriety of the dismissal and termination of the special
proceedings for judicial administration must be affirmed inspite
of its rendition in another related case in view of the established
jurisprudence which favours partition when judicial
administration become, unnecessary.
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. 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.
In the records of this case, We find no indication of any
indebtedness of the estate. No creditor has come up to charge
the estate within the two-year period after the death of Forrest L.
Cease, hence, the presumption under Section 1, Rule 74 that the
estate is free from creditors must apply.

19
 That legal fiction of separate corporate personality shall have been
used to delay and ultimately deprive and defraud the respondents of
their successional rights to the estate of their deceased father. For
Tiaong Milling and Plantation Company shall have been able to extend
its corporate existence beyond the period of its charter which lapsed in
June, 1958 under the guise and cover of F. L, Cease Plantation
Company, Inc. As Trustee which would be against the law, and as
Trustee shall have been able to use the assets and properties for the
benefit of the petitioners, to the great prejudice and defraudation. of
private respondents Hence, it becomes necessary and imperative
to pierce that corporate veil.
Issue: WON the lower court in the partition case is not interlocutory but
rather final for it consists of final and determinative dispositions of the
contentions of the parties.
If there were a valid genuine claim of Exclusive ownership of the
inherited properties on the part of petitioners to respondents'
action for partition, then under the Miranda ruling, petitioners
would be sustained, for as expressly held therein " the general
rule of partition that an appeal will not lie until the partition or
distribution proceedings are terminated will not apply where
appellant claims exclusive ownership of the whole property and
denies the adverse party's right to any partition."
But this question has now been rendered moot and academic for
the very issue of exclusive ownership claimed by petitioners to
deny and defeat respondents' right to partition - which is the
very core of their rejected appeal - has been squarely resolved
herein against them, as if the appeal had been given due course.
The Court has herein expressly sustained the trial court's
findings, as affirmed by the Court of Appeals, that the assets or
properties of the defunct company constitute the estate of the
deceased proprietor and the defunct company's assertion of
ownership of the properties is a legal contradiction and would but
thwart the liquidation and final distribution and partition of the
properties among the parties hereof as children of their deceased
father Forrest L. Cease. There is therefore no further hindrance to
effect the partition of the properties among the parties in
implementation of the appealed judgment.

Sampilo v. CA, G.R. No. L-10474, February 28, 1958 (103 Phil 71)
WON Court of Appeals erred in affirming that respondent Felisa
Sinopera's right of action to recover her and her co-heirs' participation
to the lands in question had not prescribed at the time the action to
recover was filed.
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
applicable only (1) to persons who have participated or taken
part or had notice of the extrajudicial partition, and, in addition,
(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. The case at bar fails to
comply with both requirements because not all the heirs
interested have participated in the extrajudicial settlement, the

20
 Court of Appeals having found that the decedent left aside from
his widow, nephews and nieces living at the time of his death.
There is nothing is Section 4 of Rule 74, or in its source which
shows clearly a statute of limitations and a bar of action against
third person's. It is only a bar against the parties who had taken
part in the extrajudicial proceedings but not against third persons
not Parties thereto.
Only those who have been notified; constructive is sufficient.
WON the appellants are innocent purchasers for value.
No. y. It is well -settled rule in this jurisdiction that a purchaser of
registered lands who has knowledge of facts which should put
him upon inquiry and investigate as to the possible defects of the
title of the vendor and fails to make such inquiry and
investigation cannot claim that he as a purchaser in good faith
for value and he had acquired a valid title thereto.
As regards defendant Benny Sampilo, it is an admitted fact that
he is a nephew of Leoncia de Leon and he had been living with
the latter. Both Benny Sampilo and the heirs of the deceased
who are claiming the property are residents of San Manuel,
Pangasinan. It is hard, therefore, to believe that Benny Sampilo
did not know the existence of said heirs, and that he was not
aware that they were nephews and nieces, children of the
deceased brothers, of the deceased Teodoro Tolete.

Amerol v. Bagumbaran, G.R. No. September 30, 1987 (154 SCRA

396)
When property is acquired through mistake or fraud, an implied trust is
created in favor of the actual possessor. Indubitably, the act of
respondent in misrepresenting that he was in actual possession and
occupation of the property in question, obtaining a patent and Original
Certificate of Title No. P- 466 in his name, created an implied trust in
favor of the actual possessor of the said property. The Civil Code
provides: ARTICLE 1456. If property is acquired through mistake or
fraud, the person obtaining it is by force of law, considered a trustee of
an implied trust for the benefit of the person from whom the property
comes. In this case, the land in question was patented and titled in
respondent's name by and through his false pretenses. Molok
Bagumbaran fraudulently misrepresented that he was the occupant
and actual possessor of the land in question when he was not because
it was Liwalug Datomanong. Bagumbaran falsely pretended that there
was no prior applicant for a free patent over the land but there was
Liwalug Datomanong. By such fraudulent acts, Molok Bagumbaran is
deemed to hold the title of the property in trust and for the benefit of
petitioner Liwalug Datomanong
Trustee can be compelled by law to reconvey property fraudulently
acquired notwithstanding the irrevocability of the Torrens Title.
10 years from the time of the issuance of the certificate of Title.
If no Title
Marquez v. CA, G.R. No. 125715, December 29, 1998 (300 SCRA 653)
As such, when Rafael Marquez Sr., for one reason or another,
misrepresented in his unilateral affidavit that he was the only heir of
his wife when in fact their children were still alive, and managed to
secure a transfer of certificate of title under his name, a constructive

21
 trust under Article 1456 was established. Constructive trusts are
created in equity in order to prevent unjust enrichment. They arise
contrary to intention against one who, by fraud, duress or abuse of
confidence, obtains or holds the legal, right to property which he ought
not, in equity and good conscience, to hold.
It is settled that an action for reconveyance based on an implied or
constructive trust prescribes in ten years from the isuance of the
Torrens title over the property. For the purpose of this case, the
prescriptive period shall start to run when TCT No. 33350 was issued,
which was on June 16, 1982. Thus, considering that the action for
reconveyance was filed on May 31, 1991, or approximately nine years
later, it is evident that prescription had not yet barred the action.
In Amerol v. Bagumbaran, we ruled that the doctrine laid down in the
earlier Gerona case was based on the old Code of Civil Procedure which
provided that an action based on fraud prescribes within four years
from the date of discovery. However, with the effectivity of the present
Civil Code on August 30, 1950, the provisions on prescriptive periods
are now governed by Articles 1139 to 1155. Since implied or
constructive trusts are obligations created by law then the prescriptive
period to enforce the same prescribes in ten years.
Rafael Marquez Sr. can validly donate the other half of the property
since under the law, he is entitled to one half of the property from the
death of his wife.
However, as a trustee of his wifes share, he cannot validly donate as
expressly provided by Article 736 of the Civil Code.

GSIS v. Santiago, G.R. No. 155206, October 28, 2008 (414 SCRA 563)
GENERAL RULE: An action for reconveyance based on implied
or constructive trust prescribes in ten years from the alleged
fraudulent registration or date of issuance of the certificate of
title over the property because it is "considered a constructive
notice to all persons.
EXCEPTION: The prescriptive period for the filing of the action for
reconveyance based on implied trust is reckoned from the actual
discovery of fraud even if titles over the lots had been issued in the
name of the defendant-appellant. The holder in bad faith could not
legally claim ownership and absolute dominion over them because
indefeasibility of title under the Torrens system does not attach to
titles secured by fraud or misrepresentation.
It is well-settled that a holder in bad faith of a certificate of title is not
entitled to the protection of the law for the law cannot be used as a
shield for fraud.
In this case, the fraud committed by GSIS in the form of concealment
of the existence of said lots and failure to return the same to the real
owners after their exclusion from the foreclosure sale made defendant-
appellant holders in bad faith.
In this case, respondent Santiago came to know that there were 91
excluded lots in Antonio Village which were foreclosed by the GSIS and
included in its consolidation of ownership in 1975 when, in 1989, he
and Antonio Vic Zulueta discussed it and he was given by Zulueta a
special power of attorney to represent him to recover the subject
properties from GSIS. The complaint for reconveyance was filed barely
a year from the discovery of the fraud.

22
 Having acted in bad faith in securing titles over the subject lots, the
petitioner is a holder in bad faith of certificates of title over the subject
lots. The petitioner is not entitled to the protection of the law for the
law cannot be used as a shield for frauds.

RULE 75. PRODUCTION OF WILL. ALLOWANCE OF WILL

NECESSARY

Mang-oy v. CA, G.R. No. L-27421, September 12, 1986 (144 SCRA 33)
The will, not having been probated as required by law, was inoperative
as such. The settled principle, as announced in a long line of decisions
in accordance with the Rules of Court, is that no will shall pass either
real or personal property unless it is proved or allowed in court.
The validity of a will as to its form depends upon the observance of the
law in force at the time the will is made. The document may be
sustained on the basis of Article 1056 of the Civil Code of 1899, which
was in force at the time the said document was executed by Old Man
Tumpao in 1937.

The appellants evidently fail to realize that Article 1056 of the Civil
Code of 1889 authorizes a testator to partition inter vivos his property,
and distribute them among his heirs, and that this partition is not
necessarily either a donation nor a testament, but an instrument of a
special character, sui generis, which is revocable at any time by the
causante during his lifetime, and does not operate as a conveyance of
title until his death. It derives its binding force on the heirs from the
respect due to the will of the owner of the property, limited only by his
creditors and the intangibility of the legitime of the forced heirs.
That such partition is not governed by the rules of wills or donations
inter vivos is a consequence of its special nature.
There is no difference in legal effect between Agustin Albela's deed of
partition and Old Man Tumpao's "last will and testament." Both are
sustainable under Article 1056 of the Civil Code, which was in force at
the time they were executed Even as Agustin Albela's partition was
signed by the two daughters themselves, so was Old Man Tumpao's
"will" affirmed by the beneficiaries in their agreement of September 7,
1937, which reiterated and recognized the terms of such "will." While
not valid as a partition inter vivos under Articles 816 and 1271 of the
old Civil Code, it was nevertheless binding on the parties as proof of
their conformity to the dispositions made by Old Man Tumpao in his
"last will and testament."
We may add that the agreement entered into by the parties in
implementation of Old Man Tumpao's "will" did not have to be
approved by the Director of the Bureau of Non-Christian Tribes because
the Administrative Code of Mindanao and Sulu was not extended to the
Mountain Province. Moreover, the document was not a conveyance of
properties or property right.
It remains to state that the property in dispute having been registered
in 1917, the presumption is that it was acquired during the second
marriage and so cannot be claimed by the respondents as the conjugal

23
 property of their mother and Old Man Tumpao. Hence, they are not
entitled to retain the entire land as their exclusive inheritance or to
collect rentals for the lots occupied by the petitioners.
The trial judge, the Hon. Feliciano Belmonte, was correct in ordering
the reconveyance to the petitioners of their respective shares.

Nufable v. Nufable, G.R. No. 126950, July 2, 1999 (309 SCRA 692)
Issue: WON the probate of the Last Will and Testament of Esdras
Nufable did not determine the ownership of the land in question as
against third parties.
JURISDICTION; PROBATE COURTS; LIMITED ONLY TO PASSING
UPON THE EXTRINSIC VALIDITY OF THE WILL SOUGHT TO BE
PROBATED: As a general rule, courts in probate proceedings are
limited only to passing upon the extrinsic validity of the will
sought to be probated, the due execution thereof, the testators
testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. Said court at this stage of the
proceedings is not called upon to rule on the intrinsic validity or
efficacy of the provision of the will. The question of the
intrinsic validity of a will normally comes only after the
court has declared that the will has been duly
authenticated.
It should likewise be noted that the late Esdras Nufable died on
August 9, 1965. When the entire property located at Manjuyod
was mortgaged on March 15, 1966 by his son Angel Custodio
with DBP, the other heirs of Esdras - namely: Generosa, Vilfor and
Marcelo - had already acquired successional rights over the said
property. This is so because of the principle contained in Article
777 of the Civil Code to the effect that the rights to the
succession are transmitted from the moment of death of the
decedent. Accordingly, for the purpose of transmission of rights,
it does not matter whether the Last Will and Testament of the
late Esdras Nufable was admitted on March 30, 1966 or
thereafter or that the Settlement of Estate was approved on June
6, 1966 or months later.
Thus, when Angel Nufable and his spouse mortgaged the subject
property to DBP on March 15, 1966, they had no right to
mortgage the entire property. Angels right over the subject
property was limited only to pro indiviso share. As co-owner of
the subject property, Angels right to sell, assign or mortgage is
limited to that portion that may be allotted to him upon
termination of the co-ownership. Well-entrenched is the rule that
a co-owner can only alienate his pro indiviso share in the co-
owned property.
The Court of Appeals did not err in ruling that Angel Custodio
Nufable had no right to mortgage the subject property in its
entirety. His right to encumber said property was limited only to
pro indiviso share of the property in question. Article 493 of
the Civil Code spells out the rights of co-owners over a co-owned
property. Pursuant to said Article, a co-owner shall have full
ownership of his part and of the fruits and benefits pertaining
thereto. He has the right to alienate, assign or mortgage it, and
even substitute another person in its enjoyment. As a mere part
owner, he cannot alienate the shares of the other co-owners.

24
 The prohibition is premised on the elementary rule that no one
can give what he does not have.
Moreover, respondents stipulated that they were not aware of
the mortgage by petitioners of the subject property. This being
the case, a co-owner does not lose his part ownership of a co-
owned property when his share is mortgaged by another co-
owner without the formers knowledge and consent as in the
case at bar. It has likewise been ruled that the mortgage of the
inherited property is not binding against co-heirs who never
benefitted.
WON Court of Appeals erred in not considering the fact that the
Development Bank of the Philippines became the absolute, exclusive,
legal, and rightful owner of the land in question, from whom petitioner
Nelson Nufable acquired the same by purchase and that, therefore, no
award can be made in favor of private respondents unless and until the
Development Bank of the Philippines title thereto is first declared null
and void by the court.
When the subject property was mortgaged by Angel Custodio, he
had no right to mortgage the entire property but only with
respect to his pro indiviso share as the property was subject to
the successional rights of the other heirs of the late Esdras.
Moreover, in case of foreclosure, a sale would result in the
transmission of title to the buyer which is feasible only if the
seller can be in a position to convey ownership of the things sold.
Therefore, as regards the remaining pro indiviso share, the
same was held in trust for the party rightfully entitled thereto.
Pursuant to Article 1451 of the Civil Code, when land passes by
succession to any person and he causes the legal title to be put
in the name of another, a trust is established by implication of
law for the benefit of the true owner. Likewise, under Article
1456 of the same Code, if property is acquired through mistake
or fraud, the person obtaining it is, by force of law, considered a
trustee of an implied trust for the benefit of the person from
whom the property comes.
Neither does the fact that DBP succeeded in consolidating
ownership over the subject property in its name terminate the
existing co-ownership. Registration of property is not a means of
acquiring ownership. When the subject property was sold to and
consolidated in the name of DBP, it being the winning bidder in
the public auction, DBP merely held the portion in trust for the
private respondents. When petitioner Nelson purchased the said
property, he merely stepped into the shoes of DBP and acquired
whatever rights and obligations appertain thereto.
WON the DBP should have been impleaded as party defendant in the
case at bar.
Private respondents do not question the legality of the
foreclosure of the mortgaged property and the subsequent sale
of the same to DBP. The subject property was already purchased
by petitioner Nelson from DBP and the latter, by such sale,
transferred its rights and obligations to the former. Clearly,
petitioners interest in the controversy is distinct and separable
from the interest of DBP and a final determination can be had of
the action despite the non-inclusion of DBP as party-defendant.
Hence, DBP, not being an indispensable party, did not have to be
impleaded in this case.

25
 Nuguid v. Nuguid, G.R. No. L-23445, June 23, 1966 (17 SCRA 449)
GENERAL RULE: In a proceeding for the probate of a will, the Court's
area of inquiry is limited to an examination of, and resolution on, the
extrinsic validity of the will, the due execution thereof, the testatrix's
testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally
comes only after the court has declared that the will has been duly
authenticated.
EXCEPTION: However, where practical considerations demand
that the intrinsic validity of the will be passed upon, even
before it is probated, the Court should meet that issue. Simply
put, if the will is utterly void on its face, the court may pass
upon on the intrinsic validity.
Where the deceased left no descendants, legitimate or illegitimate, but
she left forced heirs in the direct ascending line - her parents, and her
holographic will does not explicitly disinherit them but simply omits
their names altogether, the case is one of preterition of the parents,
not a case of ineffective disinheritance.
Preterition "consists in the omission in the testator's will of the forced
heirs or anyone of them, either because they are not mentioned
therein, or, though mentioned, they are neither instituted as heirs nor
are expressly disinherited. Disinheritance, in turn, "is a testamentary
disposition depriving any compulsory heirs of his share in the
legitimate for a cause authorized by law."
Disinheritance is always "voluntary", preterition upon the other hand,
is presumed to be "involuntary.
AS TO EFFECT: Pretrition shall annul the institution of heir. This
annulment is in toto, unless in the wail there are, in addition,
testamentary dispositions in the form of devises or legacies. In
ineffective disinheritance, such disinheritance shall also "annul the
institution of heirs", but only "insofar as it may prejudice the person
disinherited", which last phrase was omitted in the case of preterition.
Better stated yet, in disinheritance the nullity is limited to that portion
of the estate of which the disinherited heirs have been illegally
deprived.
Where the one-sentence will institutes petitioner as the sole, universal
heir and preterits the parents of the testatrix, and it contains no
specific legacies or bequests, such universal institution of petitioner, by
itself, is void. And intestate succession ensues.
Legacies and devises merit consideration only when they are so
expressly given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will void because of
preterition would give the heir so instituted a share in the
inheritance. As to him, the will is inexistent. There must be, in
addition to such institution, a testamentary disposition
granting him bequests or legacies apart and separate from the
nullified institution of heir.
Institution of heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property bequeathed by a
particular or special title. ... But again an institution of heirs cannot be
taken as a legacy.

26
Alvarado v. Gaviola, G.R. No. 74695, September 14, 1993 (226 SCRA 347)
Clear from the foregoing is that Art. 808 applies not only to blind
testators but also to those who, for one reason or another, are
"incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor," "defective," or
"blurred" vision, there can be no other course for us but to conclude
that Brigido Alvarado comes within the scope of the term "blind" as it is
used in Art. 808. Unless the contents were read to him, he had no way
of ascertaining whether or not the lawyer who drafted the will and
codicil did so confortably with his instructions.
Article 808 requires that in case of testators like Brigido Alvarado, the
will shall be read twice; once, by one of the instrumental witnesses
and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated
testator the contents of the document before signing and to give him
an opportunity to object if anything is contrary to his instructions.
This Court has held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has been
satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of
fraud and trickery but are never intended to be so rigid and inflexible
as to destroy the testamentary privilege.
In the case at bar, private respondent read the testator's will and
codicil aloud in the presence of the testator, his three instrumental
witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and petitioner
does not so allege, that the contents of the will and codicil were not
sufficiently made known and communicated to the testator. On the
contrary, with respect to the "Huling Habilin," the day of the execution
was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony
of Atty. Rino is that Brigido Alvarado already acknowledged that the will
was drafted in accordance with his expressed wishes even prior to 5
November 1977 when Atty. Rino went to the testator's residence
precisely for the purpose of securing his conformity to the draft.

Pastor v. CA, G.R. No. L-56340, June 24, 1983 (122 SCRA 85)
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.
As a rule, the question of ownership is an extraneous matter which the
Probate Court cannot resolve with finality. Thus, 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

27
 conclusive, and is subject to the final decision in a separate action to
resolve title.
Nowhere in the dispositive portion 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. Thus it allowed and approved the
holographic win "with respect to its extrinsic validity, the same having
been duly authenticated pursuant to the requisites or solemnities
prescribed by law." It declared that the intestate estate administration
aspect must proceed " subject to the outcome of the suit for
reconveyance of ownership and possession of real and personal
properties in Civil Case 274-T before Branch IX of the CFI of Cebu."
[Parenthetically, although the statement refers only to the "intestate"
aspect, it defies understanding how ownership by the estate of some
properties could be deemed finally resolved for purposes of testate
administration, but not so for intestate purposes. Can the estate be the
owner of a property for testate but not for intestate purposes?] Then
again, the Probate Order (while indeed it does not direct the
implementation of the legacy) conditionally stated that the intestate
administration aspect must proceed "unless . . . it is proven . . . that
the legacy to be given and delivered to the petitioner does not exceed
the free portion of the estate of the testator," which clearly implies that
the issue of impairment of legitime (an aspect of intrinsic validity) was
in fact not resolved. Finally, the Probate Order did not rule on the
propriety of allowing QUEMADA to remain as special administrator of
estate properties not covered by the holographic will, "considering that
this (Probate) Order should have been properly issued solely as a
resolution on the issue of whether or not to allow and approve the
aforestated will.
It was, therefore, error for the assailed implementing Orders to
conclude that the Probate Order adjudged with finality the question of
ownership of the mining properties and royalties, and that, premised
on this conclusion, the dispositive portion of the said Probate Order
directed the special administrator to pay the legacy in dispute.
When PASTOR, SR. died in 1966, he was survived by his wife, aside
from his two legitimate children and one illegitimate son. There is
therefore a need to liquidate the conjugal partnership and set apart the
share of PASTOR, SR.'s wife in the conjugal partnership preparatory to
the administration and liquidation of the estate of PASTOR, SR. which
will include, among others, the determination of the extent of the
statutory usufructuary right of his wife until her death. When the
disputed Probate order was issued on December 5, 1972, there had
been no liquidation of the community properties of PASTOR, SR. and
his wife.
Therefore, the Order of Execution of August 20, 1980 and the
subsequent implementing orders for the payment of QUEMADA's
legacy, in alleged implementation of the dispositive part of the Probate
Order of December 5, 1972, must fall for lack of basis.
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. (Bernardo vs. Court of Appeals, 7 SCRA 367.)

28
 Maninang v. CA, G.R. No. L-57848, June 19, 1982 (114 SCRA 473)
Generally, the probate of a Will is mandatory. The law enjoins the
probate of the Will and public policy requires it, because unless the Will
is probated and notice thereof given to the whole world, the right of a
person to dispose of his property by Will may be rendered nugatory.
Normally, the probate of a Will does not look into its intrinsic validity.
The Nuguid and the Balanay cases provide the exception rather than
the rule. The intrinsic validity of the Wills in those cases was passed
upon even before probate because "practical considerations" so
demanded.
In the instant case, a crucial issue that calls for resolution is whether
under the terms of the decedent's Will, private respondent had been
preterited or disinherited, and if the latter, whether it was a valid
disinheritance. By virtue of the dismissal of the Testate Case, the
determination of that controversial issue has not been thoroughly
considered.
We find that the Court a quo a quo acted in excess of its jurisdiction
when it dismissed the Testate Case.

Coronado v. CA, G.R. No. 78778, December 3, 1990 (191 SCRA 894)
Issue: WON the respondent appellate court erred in finding that Dr.
Dalmacio Monterola could not have acquired the subject land by
acquisitive prescription.
No. As found by the respondent appellate court, Monterola never
claimed ownership over the property in question. As a matter of
fact, one of the deeds of donation executed by Monterola in favor
of Leonida Coronado acknowledged that the boundary owner on
the property conveyed to her is JUANA. This is precisely the
reason why during the lifetime of the late Dalmacio Monterola,
JUANA had always been allowed to enter and reap the benefits or
produce of the said property. It was only after the death of said
Monterola in 1970 that Leonida Coronado prohibited JUANA from
entering it.
Even assuming arguendo that Monterola was indeed in continued
possession of the said property for over ten years since 1934,
said possession is insufficient to constitute the fundamental basis
of the prescription. Possession, under the Civil Code, to
constitute the foundation of a prescriptive right, must be
possession under claim of title (en concepto de dueno), or to use
the common law equivalent of the term, it must be adverse. Acts
of possessory character performed by one who holds by mere
tolerance of the owner are clearly not en concepto de dueno, and
such possessory acts, no matter how long so continued, do not
start the running of the period of prescription.
WON the will under which JUANA inherited the property in question
from her grandfather and which was never probated was valid.
While it is true that no will shall pass either real or personal
property unless it is proved and allowed in the proper court (Art.
838, Civil Code), the questioned will, however, may be sustained
on the basis of Article 1056 of the Civil Code of 1899, which was
in force at the time said document was executed by Melecio
Artiaga in 1918. The said article read as follows: Article 1056. If

29
 the testator should make a partition of his properties by an act
inter vivos, or by will, such partition shall stand in so far as it
does not prejudice the legitime of the forced heir.
WON JUANA is estopped from questioning the ownership of Leonida
Coronado over the land in question having failed to raise the same in
the estate proceedings in the trial court and even on appeal,
No. The probate of a will does not look into its intrinsic validity. It
does not determine nor even by implication prejudge the validity
or efficiency of the provisions of the will, thus may be impugned
as being vicious or null, notwithstanding its authentication. The
question relating to these points remain entirely unaffected, and
may be raised even after the will has been authenticated
(Maninang, et al., v. Court of Appeals, 114 SCRA 473 [1982]).
Consequently, JUANA is not estopped from questioning the
ownership of the property in question, notwithstanding her
having objected to the probate of the will executed by Monterola
under which Leonida Coronado is claiming title to the said
property.
The fact that JUANA failed to identify the property in question and to
explain the discrepancy in the boundary of said property, assuming
they are true, is immaterial, in view of the findings of the lower court
as to the identity of the property in question. Moreover, the lower court
found sufficient evidence to support the conclusion that the property in
question is the same property adjudicated to JUANA under the will of
Melecio Artiaga, and that CORONADO has no right whatsoever to said
property. Such findings are conclusive upon this Court.

Balanay v. Martinez, G.R. No. L-39247, June 27, 1975

The trial court acted correctly in passing upon the will's intrinsic
validity even before its formal validity had been established. The
probate of a will might become an idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand
that the intrinsic validity of the will be passed upon, even before it is
probated, the court should meet the issue.
But the probate court erred in declaring, in its order of February 28,
1974 that the will was void and in converting the testate proceeding
into an intestate proceeding notwithstanding the fact that in its order
of June 18, 1973 , it gave effect to the surviving husband's conformity
to the will and to his renunciation of his hereditary rights which
presumably included his one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained
in a will does not result in the invalidity of the other dispositions, unless
it is to be presumed that the testator would not have made such other
dispositions if the first invalid disposition had not been made
The statement of the testatrix that she owned the "southern half
of the conjugal lands is contrary to law because, although she
was a coowner thereof, her share was inchoate and pro indiviso.
But That illegal declaration does not nullify the entire
will. It may be disregarded.
The provision of the will that the properties of the testatrix should not
be divided among her heirs during her husband's lifetime but should be
kept intact and that the legitimes should be paid in cash is contrary to

30
 article 1080 of the Civil Code. The testatrix in her will made a partition
of the entire conjugal estate among her six children (her husband had
renounced his hereditary rights and his one-half conjugal share). She
did not assign the whole estate to one or more children as envisaged in
article 1080. Hence, she had no right to require that the legitimes be
paid in cash. On the other hand, her estate may remain undivided only
for a period of twenty years.
Felix Balanay, Sr. could validly renounce his hereditary rights and his
one-half share of the conjugal partnership (Arts. 179[1] and 1041, Civil
Code) but insofar as said renunciation partakes of a donation of his
hereditary rights and his one-half share in the conjugal estate (Art.
1060[1] Civil Code), it should be subject to the limitations prescribed in
articles 750 and 752 of the Civil Code. A portion of the estate should be
adjudicated to the widower for his support and maintenance. Or at
least his legitime should be respected.
In the instant case, the preterited heir was the surviving spouse. His
preterition did not produce intestacy. Moreover, he signified his
conformity to his wife's will and renounced his hereditary rights. .
Testacy is favored. Doubts are resolved in favor of testacy especially
where the will evinces an intention on the part of the testator to
dispose of practically his whole estate. So compelling is the principle
that intestacy should be avoided and that the wishes of the testator
should prevail that sometimes the language of the will can be varied
for the purpose of giving it effect.
The lower court erred in issuing a notice to creditors although no
executor or regular administrator has been appointed. The record
reveals that it appointed a special administrator. A notice to creditors is
not in order if only a special administrator has been appointed. Section
1, Rule 86 of the Rules of Court, in providing that "immediately after
granting letters of testamentary or of administration, the court shall
issue a notice requiring all persons having money claims against the
decedent to file them in the office of the clerk of said court" clearly
contemplates the appointment of an executor or regular administrator
and not that of a special administrator.

Ajero v. CA, G.R. No. 106720, September 15, 1994 (236 SCRA 488)
Section 9, Rule 76 of the Rules of Court provides the cases in which
wills shall be disallowed. In the same vein, Article 839 of the New Civil
Code enumerates the grounds for disallowance of wills. These lists
are exclusive; no other grounds can serve to disallow a will.
Thus, in a petition to admit a holographic will to probate, the only
issues to be resolved are: (1) whether the instrument submitted is,
indeed, the decedent's last will and testament; (2) whether said will
was executed in accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary capacity at the
time the will was executed; and, (4) whether the execution of the will
and its signing were the voluntary acts of the decedent.
In the case of holographic wills, on the other hand, what assures
authenticity is the requirement that they be totally autographic or
handwritten by the testator himself, as provided under Article 810 of
the New Civil Code, thus: A person may execute a holographic will
which must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed.

31
 Failure to strictly observe other formalities will not result in the
disallowance of a holographic will that is unquestionably
handwritten by the testator.
Art. 813. When a number of dispositions appearing in a holographic
will are signed without being dated, and the last disposition has a
signature and a date, such date validates the dispositions preceding it,
whatever be the time of prior disposition. A reading of Article 813 of
the New Civil Code shows that its requirement affects the validity of
the dispositions contained in the holographic will, but not its probate.
If the testator fails to sign and date some of the dispositions,
the result is that these dispositions cannot be effectuated.
Such failure, however, does not render the whole testament
void.
Art. 814. In case of any insertion, cancellation, erasure or alteration in
a holographic will, the testator must authenticate the same by his full
signature. Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article 814.
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
testator's signature, their presence does not invalidate the will
itself. The lack of authentication will only result in
disallowance of such changes.
It is also proper to note that the requirements of authentication of
changes and signing and dating of dispositions appear in provisions
(Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article
810). This separation and distinction adds support to the interpretation
that only the requirements of Article 810 of the New Civil Code and
not those found in Articles 813 and 814 of the same Code are
essential to the probate of a holographic will.
The Court of Appeals was correct in holding that decedent Annie Sand
could not validly dispose of the house and lot located in Cabadbaran,
Agusan del Norte, in its entirety.
As a general rule, courts in probate proceedings are limited to
pass only upon the extrinsic validity of the will sought to be
probated.
However, in exceptional instances, courts are not powerless to
do what the situation constrains them to do, and pass upon
certain provisions of the will.
In the case at bench, decedent herself indubitably stated in her
holographic will that the Cabadbaran property is in the name of
her late father, John H. Sand (which led oppositor Dr. Jose Ajero
to question her conveyance of the same in its entirety). Thus, as
correctly held by respondent court, she cannot validly dispose of
the whole property, which she shares with her father's other
heirs.

Acain v. IAC, G.R. No. 72706, October 27, 1987

Preterition consists in the omission in the testator's will of the
forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited.

32
 Insofar as the widow is concerned, Article 854 of the Civil Code may
not apply as she does not ascend or descend from the testator,
although she is a compulsory heir. Stated otherwise, 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.
However, the same thing cannot be said of the other respondent
Virginia A. Fernandez, whose legal adoption by the testator has not
been questioned by petitioner. Under Article 39 of P.D. No. 603, known
as the Child and Youth Welfare Code, 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.
The universal institution of petitioner together with his brothers and
sisters to the entire inheritance of the testator results in totally
abrogating the will because the nullification of such institution of
universal heirs-without any other testamentary disposition in the will-
amounts to a declaration that nothing at all was written.
In order that a person may be allowed to intervene in a probate
proceeding he must have an interest iii the estate, or in the will, or in
the property to be affected by it either as executor or as a claimant of
the estate and an interested party is one who would be benefited by
the estate such as an heir or one who has a claim against the estate
like a creditor.
Petitioner is not the appointed executor, neither a devisee or a
legatee there being no mention in the testamentary disposition
of any gift of an individual item of personal or real property he is
called upon to receive. At the outset, he appears to have an
interest in the will as an heir, defined under Article 782 of the
Civil Code as a person called to the succession either by the
provision of a will or by operation of law. However, intestacy
having resulted from the preterition of respondent adopted child
and the universal institution of heirs, petitioner is in effect not an
heir of the testator. He has no legal standing to petition for the
probate of the will left by the deceased and Special Proceedings
No. 591 A-CEB must be dismissed.
GENERAL RULE: Special Proceedings No. 591 ACEB is for the probate of
a will. As stated by respondent Court, the general rule is that the
probate court's authority is limited only to the extrinsic validity of the
will, the due execution thereof, the testator's testamentary capacity
and the compliance with the requisites or solemnities prescribed by
law. The intrinsic validity of the will normally comes only after the
Court has declared that the will has been duly authenticated. Said
court at this stage of the proceedings is not called upon to rule on the
intrinsic validity or efficacy of the provisions of the will.
EXCEPTION: Under exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do and pass upon
certain provisions of the will.
IN THE CASE AT BAR: For private respondents to have tolerated the
probate of the will and allowed the case to progress when on its face
the will appears to be intrinsically void as petitioner and his brothers
and sisters were instituted as universal heirs coupled with the obvious
33
 fact that one of the private respondents had been preterited
would have been an exercise in futility. The trial court could have
denied its probate outright or could have passed upon the intrinsic
validity of the testamentary provisions before the extrinsic validity of
the will was resolved.

Vda. de Bacang v. CA, G.R. No. L-50143, October 24, 1983

We hold that the appeal is palpably bereft of merit. Petitioners' 1975
action is clearly barred by valid prior judgments and prescription.
Private respondents' Torrens titles over the hacienda have long become
indefeasible.
CASE AT BAR: On September 26, 1912, the three children by the
second wife, Manuel, Carmen, and Hermenegildo, sold their
hereditary shares in the said hacienda for P10,500 to Pilar Lajato
and her children.
Intestate proceedings for the settlement of Emilio Teves' estate
were pending in the lower court from 1912 to 1919. No claim
against the said estate or its administrator was filed during that
period by the said three children.
In 1920, the same three children in Civil Case No. 576 sued the
vendees, Pilar Lajato and her children for the annulment of the
said deed of sale and the recovery of their shares in the
hacienda. The trial court sustained the validity of the sale and
dismissed the action. This Court dismissed the appeal of the
three children on February 1, 1924. In the cadastral proceeding,
the hacienda was claimed by the five children of Emilio Teves.
Original Certificates of Title Nos. 9162 and 13742 were issued in
their names on February 16 and December 19, 1931.
Since the grounds for dismissal are indubitable, the defendants had the
right to resort to the more speedy and adequate remedies of certiorari
and prohibition to correct a grave abuse of discretion, amounting to
lack of jurisdiction, committed by the trial court in not dismissing the
case.

Manahan v. Manahan, G.R. No. 38050, September 22, 1933 (58 Phil 448)
The appellant was not entitled to notification of the probate of the will
and neither had she the right to expect it, inasmuch as she was not an
interested party, not having filed an opposition to the petition for the
probate thereof. Her allegation that she had the status of an heir, being
the deceased's sister, did not confer on her the right to be notified on
the ground that the testatrix died leaving a will in which the appellant
has not been instituted heir. Furthermore, not being a forced heir, she
did not acquire any successional right.
In the phraseology of the procedural law, there is no essential
difference between the authentication of a will and the probate thereof.
The words authentication and probate are synonymous in this case. All
the law requires is that the competent court declared that in the
execution of the will the essential external formalities have been
complied with and that, in view thereof, the document, as a will, is
valid and effective in the eyes of the law.
The decree admitting a will to probate is conclusive with respect to the
due execution thereof and it cannot be impugned on any of the

34
 grounds authorized by law, except that of a fraud, in any separate or
independent action or proceeding.
The proceedings followed in a testamentary case being in rem, the
decree admitting the will to probate was effective and conclusive
against her, in accordance with the provisions of section 306 of the
said Code of Civil Procedure.
The appellant could not appeal from the trial courts order denying the
motion for reconsideration and a new trial in view of the fact that said
order was interlocutory in character.

Heirs of Fran v. Salas, G.R. No. L-53546, June 25, 1992 (210 SCRA 303)
After the probate court rendered its decision on 13 November 1972,
and there having been no claim presented despite publication of notice
to creditors, petitioner Fran submitted a Project of Partition which
private respondent Maria M. Vda. de Gandiongco voluntarily signed
and to which private respondent Espina expressed her conformity
through a certification filed with the probate court. Assuming for the
sake of argument that private respondents did not receive a formal
notice of the decision as they claim in their Omnibus Motion for
Reconsideration, these acts nevertheless constitute indubitable proof
of their prior actual knowledge of the same. A formal notice would
have been an idle ceremony. In testate proceedings, a decision
logically precedes the project of partition, which is normally an
implementation of the will and is among the last operative
acts to terminate the proceedings. If private respondents did not
have actual knowledge of the decision, they should have desisted from
performing the above acts and instead demanded from petitioner Fran
the fulfillment of his alleged promise to show them the will. The same
conclusion refutes and defeats the plea that they were not notified of
the order authorizing the Clerk of Court to receive the evidence and
that the Clerk of Court did not notify them of the date of the reception
of evidence. Besides, such plea must fail because private respondents
were present when the court dictated the said order.
This Court in Laluan vs. Malpaya recognized and upheld the practice of
delegating the reception of evidence to Clerks of Court.
The alternative claim that the proceedings before the Clerk of Court
were likewise void because said official did not take an oath is likewise
untenable. The Clerk of Court acted as such when he performed the
delegated task of receiving evidence. It was not necessary for him to
take an oath for that purpose; he was bound by his oath of office as a
Clerk of Court. Private respondents are obviously of the impression that
by the delegation of the reception of evidence to the Clerk of Court,
the latter became a commissioner as defined under Rule 33 of the
Rules of Court entitled Trial by Commissioner.
It is not necessary that the original of the will be attached to
the petition.
It is not likewise disputed that the original of the will was submitted in
evidence and marked as Exhibit "F". It forms part of the records of the
special proceedings a fact which private respondents admit in their
Omnibus Motion for Reconsideration.
Granting for the sake of argument that the non-fulfillment of said
promise constitutes fraud, such fraud is not of the kind which provides
sufficient justification for a motion for reconsideration or a petition for
relief from judgment under Rule 37 and Rule 38, respectively, of the
Rules of Court, or even a separate action for annulment of judgment. It
35
 is settled that for fraud to be invested with, sufficiency, it must be
extrinsic or collateral to the matters involved in the issues raised
during the trial which resulted in such judgment.
In Our jurisdiction, the following courses of action are open to an
aggrieved party to set aside or attack the validity of a final judgment:
1. Petition for relief under Rule 38 of the Rules of Court which must
be filed within sixty (60) days after learning of the decision, but
not more than six (6) months after such decision is entered;
2. By direct action, via a special civil action for certiorari, or by
collateral attack, assuming that the decision is void for want of
jurisdiction;
3. By an independent civil action under Article 1114 of the Civil
Code, assuming that the decision was obtained through fraud
and Rule 38 can not be applied.
The probate judgment of 13 November 1972, long final and
undisturbed by any attempt to unsettle it, had inevitably passed
beyond the reach of the court below to annul or set the same aside, by
mere motion, on the ground that the will is a forgery. Settled is the rule
that the decree of probate is conclusive with respect to the due
execution of the will and it cannot be impugned on any of the grounds
authorized by law, except that of fraud, in any separate or independent
action or proceeding. We wish also to advert to the related doctrine
which holds that final judgments are entitled to respect and should not
be disturbed; otherwise, there would be a wavering of trust in the
courts.
The non-distribution of the estate, which is vigorously denied by the
petitioners, is not a ground for the re-opening of the testate
proceedings. A seasonable motion for execution should have been
filed. In De Jesus vs. Daza, 57 this Court ruled that if the executor or
administrator has possession of the share to be delivered, the probate
court would have jurisdiction within the same estate proceeding to
order him to transfer that possession to the person entitled thereto.
This is authorized under Section 1, Rule 90 of the Rules of Court.
However, if no motion for execution is filed within the reglementary
period, a separate action for the recovery of the shares would be in
order.

RULE 76. ALLOWANCE OR DISALLOWANCE OF WILL

Leviste v. CA, G.R. No. L-29184, January 30, 1989 (169 SCRA 580)
Petitioner argues that by virtue of his contract of services with Del
Rosario, he is a creditor of the latter, and that under Article 1052 of the
Civil Code he has a right to accept for his client Del Rosario to the
extent of 35% thereof the devise in her favor to protect his contingent
attorney's fees. The argument is devoid of merit. Article 1052 of the
Civil Code does not apply to this case. That legal provision
protects the creditor of a repudiating heir. Petitioner is not a
creditor of Rosa del Rosario. The payment of his fees is
contingent and dependent upon the successful probate of the
holographic will. Since the petition for probate was dismissed
by the lower court, the contingency did not occur. Attorney
Leviste is not entitled to his fee.

36
 Article 1052 presupposes that the obligor is an heir. Rosa del Rosario is
not a legal heir of the late Maxima C. Reselva. Upon the dismissal of
her petition for probate of the decedent's will, she lost her right to
inherit any part of the latter's estate. There is nothing for the petitioner
to accept in her name.
The contract (for contingent attorney's fees) neither gives, nor
purports to give, to the appellee (lawyer) any right
whatsoever, personal or real, in and to her (clients) aforesaid
share in the conjugal partnership. The amount thereof is
simply a basis for the computation of said fees.
The Court of Appeals did not err in dismissing the petition for
mandamus, for while it is true that public policy favors the
probate of a will, it does not necessarily follow that every will
that is presented for probate, should be allowed. The law lays
down procedures which should be observed and requisites that should
be satisfied before a will may be probated. Those procedures and
requirements were not followed in this case resulting in the
disallowance of the will. There being no valid will, the motion to
withdraw the probate petition was inconsequential.
Petitioner was not a party to the probate proceeding in the
lower court. He had no direct interest in the probate of the
will. His only interest in the estate is an indirect interest as former
counsel for a prospective heir. One who is only indirectly interested in a
will may not interfere in its probate.

Rodriguez v. Borja, G.R. No. L-21993, June 21, 1966 (17 SCRA 418)
The jurisdiction of a probate court became vested upon the
delivery thereto of the will, even if no petition for its allowance
was filed until later, because upon the will being deposited the
court could, motu proprio, have taken steps to fix the time and
place for proving the will, and issued the corresponding
notices conformably to what is prescribed by section 3, Rule 76, of the
Revised Rules of Court.
The use of the disjunctive in the words "when a will is delivered to OR a
petition for the allowance of a will is filed" plainly indicates that the
court may act upon the mere deposit therein of a decedent's
testament, even if no petition for its allowance is as yet filed.
Where the petition for probate is made after the deposit of the will, the
petition is deemed to relate back to the time when the will was
delivered.
The power to settle decedents' estates is conferred by law
upon all courts of first instance, and the domicile of the
testator only affects the venue but not the jurisdiction of the
Court.
Where the estate proceedings were initiated in the Bulacan
Court of First Instance ahead of any other, that court is
entitled to assume jurisdiction to the exclusion of all other
courts, even if it were a case of wrong venue. (Sec.1, Rule 73,
Revised Rules of Court)
Intestate succession is only subsidiary or subordinate to the testate,
since intestacy only takes place in the absence of a valid operative
will. Only after final decision as to the nullity of testate succession
could an intestate succession be instituted. The institution of intestacy

37
 proceedings in Rizal may not thus proceed while the probate of the
purported will of Father Rodriguez is pending.

Maravilla v. Maravilla, G.R. No. L-23225, February 27, 1971 (37 SCRA
672)
A will may be allowed even if some witnesses not remember having
attested it, if other evidence satisfactorily show due execution, and
that failure of witness to identify his signature does not bar probate.
It should be remembered, in this connection, that the test is
not whether a witness did see the signing of the will but
whether he was in a position to see if he chose to do so.
In weighing the testimony of the attesting witnesses to a will, the
statements of a competent attorney, who has been charged with the
responsibility of seeing to the proper execution of the instrument, is
entitled to greater weight than the testimony of a person casually
called to participate in the act, supposing of course that no motive is
revealed that should induce the attorney to prevaricate. The reason is
that the mind of the attorney, being conversant with the requisites of
proper execution of the instrument, is more likely to become fixed on
details, and he is more likely than other persons to retain those
incidents in his memory.
To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties or that his mind be wholly
unbroken, unimpaired or unshattered by disease, injury or other cause.

Labrador v. CA, G.R. Nos. 83843-44, April 5, 1990 (184 SCRA 170)
The law does not specify a particular location where the date
should be placed in the will. The only requirements are that
the date be in the will itself and executed in the hand of the
testator. These requirements are present in the subject will.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810. It is worthy of note to quote the first
paragraph of the second page of the holographic will, viz: And this is
the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this
being in the month of March, 17th day, in the year 1968, and this
decision and or instruction of mine is the matter to be followed. And
the one who made this writing is no other than MELECIO LABRADOR,
their father.
Respondents are in error. The intention to show 17 March 1968 as
the date of the execution of the will is plain from the tenor of
the succeeding words of the paragraph. As aptly put by petitioner,
the will was not an agreement but a unilateral act of Melecio
Labrador who plainly knew that what he was executing was a
will. The act of partitioning and the declaration that such partitioning
as the testator's instruction or decision to be followed reveal that
Melecio Labrador was fully aware of the nature of the estate property
to be disposed of and of the character of the testamentary act as a
means to control the disposition of his estate.
When private respondents sold the property (fishpond) with right to
repurchase to Navat for P5,000, they were actually selling property
belonging to another and which they had n authority to sell, rendering
38
 such sale null and void. Petitioners, thus "redeemed" the property from
Navat for P5,000, to immediately regain possession of the property for
its disposition in accordance with the will. Petitioners therefore deserve
to be reimbursed the P5,000.

De Jesus v. De Jesus, G.R. No. L-38338, January 28, 1985 (134 SCRA
245)
As a general rule, the date in a holographic Will should
include the day, month, and year of its execution.
However, when as in the case at bar, there is no appearance of fraud,
bad faith, undue influence and pressure and the authenticity of the
Will is established and the only issue is whether or not the date
"FEB./61" appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.
We have carefully reviewed the records of this case and found no
evidence of bad faith and fraud in its execution nor was there any
substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely
written, dated, and signed by the testatrix herself and in a language
known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of
the holographic Will of their mother and that she had the testamentary
capacity at the time of the execution of said Will.

Kalaw v. Relova, G.R. No. L-40207 September 28, 1984 (132 SCRA
237)
Ordinarily, when a number of erasures, corrections, and interlineations
made by the testator in a holographic Will have not been noted under
his signature, . . . the Will is not thereby invalidated as a whole, but at
most only as respects the particular words erased, corrected or
interlined.
However, when as in this case, the holographic Will in dispute had
only one substantial provision, which was altered by
substituting the original heir with another, but which
alteration did not carry the requisite of full authentication by
the full signature of the testator, the effect must be that the
entire Will is voided or revoked for the simple reason that
nothing remains in the Will after that which could remain valid.
To state that the Will as first written should be given efficacy is to
disregard the seeming change of mind of the testatrix. But that change
of mind can neither be given effect because she failed to authenticate
it in the manner required by law by affixing her full signature.
As it is, with the erasures, cancellations and alterations made by the
testatrix herein, her real intention cannot be determined with
certitude.
The net result is that the testatrix left no valid will and both Rosa and
Gregorio as her next of kin succeed to her intestate estate.

Vda. de Perez v. Tolete, G.R. No. 76714, June 2, 1994

The respective wills of the Cunanan spouses, who were American
citizens, will only be effective in this country upon compliance with the
following provision of the Civil Code of the Philippines: Art. 816. The
39
 will of an alien who is abroad produces effect in the Philippines if made
with the formalities prescribed by the law of the place in which he
resides, or according to the formalities observed in his country, or in
conformity with those which this Code prescribes. Thus, proof that
both wills conform with the formalities prescribed by New York
laws or by Philippine laws is imperative.
The evidence necessary for the reprobate or allowance of wills
which have been probated outside of the Philippines are as
follows: (1) the due execution of the will in accordance with
the foreign laws; (2) the testator has his domicile in the
foreign country and not in the Philippines; (3) the will has
been admitted to probate in such country; (4) the fact that the
foreign tribunal is a probate court, and (5) the laws of a
foreign country on procedure and allowance of wills.
The necessity of presenting evidence on the foreign laws upon which
the probate in the foreign country is based is impelled by the fact that
our courts cannot take judicial notice of them.
There is merit in petitioners insistence that the separate wills
of the Cunanan spouses should be probated jointly. Respondent
Judges view that the Rules on allowance of wills is couched in singular
terms and therefore should be interpreted to mean that there should
be separate probate proceedings for the wills of the Cunanan spouses
is too literal and simplistic an approach. Such view overlooks the
provisions of Section 2, Rule 1 of the Revised Rules of Court, which
advise that the rules shall be "liberally construed in order to promote
their object and to assist the parties in obtaining just, speedy, and
inexpensive determination of every action and proceeding.
What the law expressly prohibits is the making of joint wills either for
the testators reciprocal benefit or for the benefit of a third person
(Civil Code of the Philippines, Article 818). In the case at bench, the
Cunanan spouses executed separate wills. Since the two wills
contain essentially the same provisions and pertain to
property which in all probability are conjugal in nature,
practical considerations dictate their joint probate. As this Court
has held a number of times, it will always strive to settle the entire
controversy in a single proceeding leaving no root or branch to bear
the seeds of future litigation
The rule that the court having jurisdiction over the reprobate of a will
shall "cause notice thereof to be given as in case of an original will
presented for allowance means that with regard to notices, the will
probated abroad should be treated as if it were an "original will" or a
will that is presented for probate for the first time. Accordingly,
compliance with Sections 3 and 4 of Rule 76, which require 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, are required.
The brothers and sisters of Dr. J ose F. Cunanan, contrary to
petitioner's claim are entitled to notices of the time and place
for proving the wills. Under Section 4 of Rule 76 of the Revised Rules
of Court, 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.
Respondent Judge shall allow petitioner reasonable time within which
to submit evidence needed for the joint probate of the wills of the
Cunanan spouses and see to it that the brothers and sisters of Dr. J ose

40
 F. Cunanan are given all notices and copies of all pleadings pertinent to
the probate proceedings.

Cases for Rules 77-85

Ventura v. Ventura, G.R. No. L-26306 April 27, 1988 (160 SCRA 810)
Under Article 854 of the Civil Code, "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 devises and legacies
shall be valid insofar as they are not inofficious," and as a result,
intestacy follows, thereby rendering the previous appointment of Maria
Ventura as executrix moot and academic. This would now necessitate
the appointment of another administrator Section 6, Rule 78 of the
Rules of Court.
It is generally said that "the nearest of kin, whose interest in the estate
is more preponderant, is preferred in the choice of administrator.
In the case at bar, the surviving spouse of the deceased Gregorio
Ventura is J uana Cardona while the next of kin are: Mercedes and
Gregoria Ventura and Maria and Miguel Ventura.
As decided by the lower court and sustained by the Supreme
Court, Mercedes and Gregoria Ventura are the legitimate
children of Gregorio Ventura and his wife, the late Paulina
Simpliciano. Therefore, as the nearest of kin of Gregorio
Ventura they are entitled to preference over the illegitimate
children of Gregorio Ventura, namely: Maria and Miguel
Ventura.
Hence, under the aforestated preference provided in Section 6 of Rule
78, the person or persons to be appointed administrator are J uana
Cardona, as the surviving spouse, or Mercedes and Gregoria Ventura as
nearest of kin, or J uana Cardona and Mercedes and Gregoria Ventura
in the discretion of the Court, in order to represent both interests.

Corona v. CA, G.R. No. L-59821 August 30, 1982 (116 SCRA 316)
EXECUTRIX'S CHOICE OF SPECIAL ADMINISTRATOR TO BE HIGHLY
RESPECTED. The executrix's choice of Special Administrator,
considering her own inability to serve and the wide latitude of
discretion given her by the testratix in her will, is entitled to the
highest consideration. Objection to Nenita Alonte's appointment on
grounds of impracticality and lack of kinship are overshadowed by the
fact that justice and equality demand that the side of the deceased
wife and the faction of the surviving husband be represented in the
management of the decedent's estate.
SPECI AL ADMI NI STRATORS SUBJ ECT TO SUPERVI SI ON OF THE
PROBATE COURT I N THE PERFORMANCE OF THEI R DUTI ES. Special
Administrators, while they may have respective interests to protect,
are officers of the Court subject to the supervision and control of the
Probate Court and are expected to work for the best interests of the
entire estate, its smooth administration, and its earliest settlement.

Gabriel v. CA, G.R. No. 101512 August 7, 1992 (212 SCRA 413)
Order of preference cannot be imperiously set aside and
insouciantly ignored by probate court without any valid and
41
 sufficient reason. Section 6 of Rule 78 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.
In the appointment of the administrator of the estate of a deceased
person, the principal consideration reckoned with is the interest in said
estate of the one to be appointed as administrator. The underlying
assumption behind this rule is that those who will reap the benefit of a
wise, speedy and economical administration of the estate, or, on the
other hand, suffer the consequences of waste, improvidence or
mismanagement, have the highest interest and most influential motive
to administer the estate correctly.
This is likewise the same consideration which the law takes into
account in establishing the preference of the widow to administer the
estate of her husband upon the latter's death, because she is supposed
to have an interest therein as a partner in the conjugal partnership.
Under the law, 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. For such reason, she would have as much,
if not more, interest in administering the entire estate correctly than
any other next of kin.
It is true that Section 6(b) of Rule 78 provides that the preference given
to the surviving spouse or next of kin may be disregarded by the court
where said persons neglect to apply for letters of administration for
thirty (30) days after the decedent's death.
Such failure is not sufficient to exclude the widow from the
administration of the estate of her husband. There must be a very
strong case to justify the exclusion of the widow from the
administration. I n the case at bar, there is no compelling reason
sufficient to disqualify Felicitas J ose- Gabriel from appointment as
administratrix of the decedent's estate.
In the case at bar, there is no compelling reason sufficient to
disqualify Felicitas J ose- Gabriel from appointment as
administratrix of the decedent's estate. Moreover, just as the
order of preference is not absolute and may be disregarded for valid
cause despite the mandatory tenor in the opening sentence of Rule 78
for its observance, so may the 30-day period be likewise waived under
the permissive tone in paragraph (b) of said rule which merely provides
that said letters, as an alternative, "may be granted to one or more of
the principal creditors."
On the other hand, we feel that we should not nullify the
appointment of private
respondent as administrator. 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. In the instant case, a mere
importunity by some of the heirs of the deceased, there being no
factual and substantial bases therefor, is not adequate ratiocination for
the removal of private respondent.
Letters of appointment may be issued to two persons. Under the
circumstances obtaining herein. we deem it just, equitable and
advisable that there be a co-administration of the estate of the
42
 deceased by petitioner Felicitas J ose- Gabriel and private respondent
Roberto Dindo Gabriel.
RATIONALE FOR APPOINTMENT OF CO-ADMINISTRATOR: (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; (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.
WHEREFORE, the judgment of respondent Court of Appeals is MODI FI
ED by AFFI RMI NG the validity of the appointment of respondent
Roberto Dindo Gabriel as judicial administrator and ORDERI NG the
appointment of petitioner Felicitas J ose Gabriel as co-administratrix in
Special Proceeding No. 88-4458 of Branch XI , Regional Trial Court of
Manila.

Reyes v. Arazanso, G.R. No. L-27657, August 30, 1992 (116 SCRA 157)
Regular administrator may be removed from her office but only
for a cause or causes provided by law. The decision of this Court,
cited in the appealed order that she, among other persons, is without
right to intervene as heir in the settlement of the estate in question is
not one of the grounds provided by the Rules of Court.
The intervention of Gregoria Aranzanso in the settlement proceedings
is not in the capacity of heir although she might be one if her direct
attack on the adoption of the two girls should succeed.
The decision denied to appellant the right to intervene in the
settlement proceedings as an heir of J uliana Reyes. But an
administrator does not have to be an heir. He can be a stranger to the
deceased. Her intervention in the settlement proceedings is not in the
capacity of heir although she might be one if her direct attack on the
adoptions of the two girls should succeed. The order removing
appellant as administrator is set aside and she is reinstated as
administrator of the intestate estate in question.
The order removing Gregoria Aranzanso as administrator was set aside

Vda. de Manalo v. CA, 349 SCRA 135

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.
A careful scrutiny of the Petition for Issuance of Letters of
Administration, Settlement and Distribution of Estate in SP. PROC. NO.
92-63626 belies herein petitioner's claim that the same is in the nature
of an ordinary civil action. The said petition contains sufficient
jurisdictional facts required in a petition for the settlement of estate of
a deceased person such as the fact of death of the late Troadio Manalo
on February 14, 1992, as well as his residence in the City of Manila at
the time of his said death. The fact of death of the decedent and of his
residence within the country are foundation facts upon which all the
subsequent proceedings in the administration of the estate rest. The
petition in SP. PROC. No. 92-63626 also contains as enumeration of the
names of his legal heirs including a tentative list of the properties left
43
 by the deceased which are sought to be settled in the probate
proceedings. I n addition, the relief prayed for in the said petition leave
no room for doubt as regard the intention of the petitioners therein
(private respondents herein) to seek judicial settlement of the estate of
their deceased father, Troadio Manalo.
Parties may not be allowed to defeat the purpose of the
essentially valid petition for the settlement of the estate by
raising matters that are irrelevant and immaterial to the said
petition. It must be emphasized that 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.
Earnest effort toward a compromise involving members of the same
family prior to the filing of any suit is applicable only to ordinary civil
actions. This is a clear from the term "suit" that it 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.
The Petition for Issuance of Letters of Administration, Settlement and
Distribution of Estate in SP. PROC. No. 92-63626 is a special proceeding
and as such, it is a remedy whereby the petitioners therein seek to
establish a status, a right, or a particular fact. The petitioners therein
(private respondents herein) merely seek to establish the fact of death
of their father and subsequently to be duly recognized as among the
heirs of the said deceased so that they can validly exercise their right
to participate in the settlement and liquidation of the estate of the
decedent consistent with the limited and special jurisdiction of the
probate court.

Saguisin v. Lindayag, G.R. No. L-17759, December 17, 1962 (6 SCRA 874)
Where it is undisputed that the decedent left a husband and
three legally adopted children, a petition for issuance of
letters of administration in favour of the sister of said
decedent was properly dismissed for lack of interest in the
estate, she being neither an heir nor a creditor thereof.
An interest party has been defined in this connection as 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. And it is well settled in this
jurisdiction that in civil actions as well as special proceedings, the
interest required in order that a person may be a party thereto must be
material and direct, and not merely indirect or contingent.
Consequently, where the motion to discuss the petition was
grounded on the petitioner's lack of legal capacity to institute
the proceedings, (not failure for it would be similar to OCA) the
argument of the petitioner that only the facts alleged in the petition
should be considered in determining its sufficiency was properly
overruled and the lower court was correct in considering the evidence
presented during the hearing of said motion to prove petitioner's lack
of legal capacity to commence the proceedings.

44
 Pilipinas Shell v. Dumlao, February 7, 1992
The allegation that a petitioner seeking letters of
administration is an interested person, does not fall within the
enumeration of jurisdictional facts. 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. These facts are amply enumerated in the petition filed by
Gonzalez.
Since the opening sentence of the section requires that the
petition must be filed by an interested person, it goes without
saying that 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.
An interested person is 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.
General Rule: The petition must be filed by an interested person;
otherwise, the dismissal of a petition for letters of administration is
proper.
Exception: An objection to the petition on the ground that it
was not filed by an interested person may be barred by waiver
or estoppel. Private respondents herein did not file a motion to
dismiss the petition filed by Gonzalez on the ground of lack of capacity
to sue; they instead filed an Opposition which, unfortunately,
did not ask for the dismissal of the petition but merely
opposed the issuance of letters of administration in favor of
Gonzalez because, among other reasons, he is a stranger to
the estate. The failure to move for a dismissal amounted to a waiver
of the above-mentioned ground. Section 8, Rule 15 of the Rules of
Court provides that: "A motion attacking a pleading or a proceeding
shall include all objections then available, and all objections not so
included shall be deemed waived." By proposing that Bonifacio
Canonoy be appointed as administrator instead of Mr. Gonzalez,
private respondents have in fact approved or ratified the filing of the
petition by the latter.
A party who has affirmed or invoked jurisdiction of a court cannot
afterwards deny that same jurisdiction.
THERE MUST BE A BOARD RES OF THE SHELL- AS AN AGENT

De Guzman v. Angeles, 162 SCRA 347

May a probate court act on and/or grant motions for the appointment
of a special administrator, for the issuance of a writ of possession of
alleged properties of the deceased person, and for assistance to
preserve the estate in a petition for the settlement of the intestate
estate even before the court has caused notice to be served upon all
interested parties pursuant to section 3, Rule 79 of the Revised Rules
of Court?
NO.
Facts to be alleged in the application before a court may acquire
jurisdiction over the case for probate of will. Before a court may
acquire jurisdiction over the case for the probate of a will and the

45
 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.
In the instant case, there is no doubt that the respondent court
acquired jurisdiction over the proceedings upon the filing of a
petition for the settlement of an intestate estate by the
private respondent since the petition had alleged all the
jurisdictional facts, the residence of the deceased person, the
possible heirs and creditors and the probable value of the
estate of the deceased Manolito de Guzman pursuant to Section
2, Rule 79 of the Revised Rules of Court.
There is a need to differentiate between jurisdiction of the probate
court over the proceedings for administration of an estate and
its jurisdiction over the persons interested in the settlement of
the estate of the deceased person. The court may also have
jurisdiction over the "estate" of the deceased person but the
determination of the properties comprising that estate must follow
established rules. Section 3, Rule 79 of the Revised Rules of Court
provides: "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.
It is very clear from this provision that 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 as
required by Section 3, Rule 79 of the Rules of Court 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 order that no
person may be deprived of his right to property without due process of
law.
Verily, 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.
In the instant case, no notice as mandated by section 3, Rule 79 of the
Revised Rules of Court was caused to be given by the probate court
before it acted on the motions of the private respondent to be
appointed as special administratrix, to issue a writ of possession of
alleged properties of the deceased person in the widow's favor, and to
grant her motion for assistance to preserve the estate of Manolito de
Guzman.
Explanation of respondent judge while seemingly plausible does not
sufficiently explain the disregard of the Rule.
WHEREFORE, the instant petition is GRANTED. The questioned orders
of the Regional Trial Court, Branch 58 of Makati are hereby set aside.
The case is ordered remanded to the lower court for the hearing of the

46
 petition with previous notice to all interested parties as required by
law.
The question is WERE they KNOWN- IF KNOWN, There must be notice
NOTICE IS MANDATORY. If there is KNOWN INTERESTED PARTIES, notice
must be personally served.
WHAT IS THE REMEDY OF THE UNKNOWN CREDITOR, WILL IT NULLIFY THE
WHOLE PROCEEDING?

Cuenco v. CA, G.R. No. L-24742, October 26, 1973 (53 SCRA 360)
The Court finds under the above-cited facts that the appellate court
erred in law in issuing the writ of prohibition against the Quezon City
court from proceeding with the testate proceedings and annulling and
setting aside all its orders and actions, particularly its admission to
probate of the deceased's last will and testament and appointing
petitioner-widow as executrix thereof without bond pursuant to the
deceased testator's express wish
For purposes of determining what court has jurisdiction in the
settlement of a deceaseds estate, 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.
Court first taking cognizance of settlement of the estate of the
decedent. The Rule on venue does not state that the court with whom
the estate or intestate petition is first filed acquires exclusive
jurisdiction. 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. A fair reading of the Rule since it deals with venue and
comity between courts of equal and co-ordinate jurisdiction
indicates that the court with whom the petition is first filed, must also
first take cognizance of the settlement of the estate in order to
exercise jurisdiction over it to the exclusion of all other courts.
Conversely, such court, may upon learning that a petition for
probate of the 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.
This exactly what the Cebu court did. Upon petitioner-widow's filing
with it a motion to dismiss Lourdes' intestate petition, it issued its
order holding in abeyance its action on the dismissal motion and
deferred to the Quezon City court, awaiting its action on the petition
for probate before that court. I mplicit in the Cebu court's order was
that if the will was duly admitted to probate by the Quezon City court,
then it would definitely decline to take cognizance of Lourdes' intestate
petition which would thereby be shown to be false and improper, and
leave the exercise of jurisdiction to the Quezon City court, to the
exclusion of all other courts.
Quezon City court did not act without jurisdiction in admitting to
probate the will of the decedent. Under these facts, the Cebu court
could not be held to have acted without jurisdiction or with grave

47
 abuse of jurisdiction in declining to take cognizance of the intestate
petition and deferring to the Quezon City court. Necessarily, neither
could the Quezon City court be deemed to have acted without
jurisdiction in taking cognizance of and acting on the probate petition
since under Rule 73, section 1, the Cebu court must first take
cognizance over the estate of the decedent and must exercise
jurisdiction to exclude all other courts, which the Cebu court
declined to do. Furthermore, as is undisputed, said rule only lays
down a rule of venue and the Quezon City court indisputably had at
least equal and coordinate jurisdiction over the estate. Since the
Quezon City court took cognizance over the probate petition before it
and assumed jurisdiction over the estate, with the consent and
deference of the Cebu court, the Quezon City court should be left now,
by the same rule of venue of said Rule 73, to exercise jurisdiction to
the exclusion of all other courts. Under the facts of the case and where
respondents submitted to the Quezon City court their opposition to
probate of the will, but failed to appear at the scheduled hearing
despite due notice, the Quezon City court cannot be declared, as the
appellate court did, to have acted without jurisdiction in admitting to
probate the decedent's will and appointing petitioner-widow as
executrix thereof in accordance with the testator's testamentary
disposition.
I n the case at bar, however, the Cebu court declined to take
cognizance of the intestate petition first filed with it and deferred to
the testate proceedings filed with Quezon City court and in effect
asked the Quezon City court to determine the residence of the
decedent and whether he did leave a last will and testament upon
which would depend the proper venue of the estate proceedings, Cebu
or Quezon City.
The Quezon City court acted regularly within its jurisdiction (even if it
were to be conceded that Quezon City was not the proper venue
notwithstanding the Cebu court's giving way and deferring to it,) in
admitting the decedent's last will to probate and naming petitioner-
widow as executrix thereof. Hence, the Quezon city court's action
should not be set aside by a writ of prohibition for supposed lack of
jurisdiction as per the appellate court's appealed decision, and should
instead be sustained.
I f the question of jurisdiction were to be made to depend only on who
of the decedent's relatives gets first to file a petition for settlement of
the decedent's estate, then the established jurisprudence of the Court
that Rule 73, section 1 provides only a rule of venue in order to
preclude different courts which may properly assume jurisdiction from
doing so and creating confl icts between them to the detriment of the
administration of justice, and that venue is waivable, would be set at
naught.
Testate proceedings for the settlement of the estate of a deceased
person take precedence over intestate proceedings for the same
purpose. Thus it has been held repeatedly that, if in the course of
intestate proceedings pending before a court of first instance it is
found that the decedent had left a last will, proceedings for the probate
of the latter should replace the intestate proceedings even if at that
state an administrator had already been appointed.xxx This, however,
is understood to be without prejudice that should the alleged last will
be rejected or is disapproved, the proceeding shall continue as an
intestacy.
SINCE THE CEBU CITY DEFERRED THE CASE TO MANILA, TERMINATED

48
 Roberts v. Leonidas, 129 SCRA 33
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". The intestate must be held in abeyance
pending the probate of the will. If the will is allowed, proceed. If not, go
back to the intestate proceedings.
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.

Ruiz v. CA, G.R. No. 118671, January 29, 1996

It is settled that allowances for support under Section 3 of Rule 83
should not be limited to the "minor or incapacitated" children of the
deceased. Article 188 of the Civil Code of the Philippines, the
substantive law in force at the time of the testator's death, provides
that during the liquidation of the conjugal partnership, deceased's
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.
The law clearly limits the allowance to "widow and children" and does
not extend it to the deceased's grandchildren, regardless of their
minority or incapacity.
WHEN DISTRIBUTION OF ESTATE PROPERTIES CAN BE MADE. In
settlement of estate proceedings, the distribution of the
estate properties 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.
Respondent courts also erred when they ordered the release of the
titles of the bequeathed properties to private respondents six months
after the date of first publication of notice to creditors.
GR: Estate tax must be paid before the 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.
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. I t was correct

49
 for the probate court to require him to submit an accounting of the
necessary expenses for administration before releasing any further
money in his favor.
AFTER THE PROBATE OF THE WILL BUT BEFORE OF OBLIGATION, THE
COURT MAY GRANT ALLOWANCE ONLY TO HEIRS PAYMENT (surviving
spouse, children even of age, and incapacitated) BUT NOT EXTENDED
ON GRANDCHIDREN; The heirs may
WHAT IS VESTED IS ONLY THE RESIDUE of the estate after the payment
of the obligation. Gross estate less obligation

Mananquil v. Villegas, 189 SCRA 335

Administrator may exercise acts of administration without special
authority from the court. Pursuant to Section 3 of Rule 84 of the
Revised Rules of Court, 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 of the settlement
court.
Thus, considering that administrator Felix Leong was not required
under the law and prevailing jurisprudence to seek prior authority from
the probate court in order to validly lease real properties of the estate,
respondent, as counsel of Felix Leong, cannot be taken to task for
failing to notify the probate court of the various lease contracts
involved herein and to secure its judicial approval thereto.
The Court finds sufficient evidence to hold respondent subject to
disciplinary sanction for having, as counsel of record for the
administrator in Special Proceedings No. 460, participated in the
execution in 1975 and 1978 of renewals of the lease agreement
involving properties of the estate in favor of the partnership HIJOS DE J
OSE VI LLEGAS, of which respondent is a member and in 1968 was
appointed managing partner.
Even if the parties designated as lessees in the assailed lease
contracts were the "Heirs of J ose Villegas" and the partnership HIJOS
DE J OSE VI LLEGAS, 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.
Thus, the law makes the prohibition absolute and permanent.
Participation in the execution of the prohibited contracts such as those
referred to in Articles 1491 and 1646 of the new Civil Code has been
held to constitute breach of professional ethics on the part of the
lawyer for which disciplinary action may be brought against him.

Kalaw v. IAC, G.R. No. 74618, September 2, 1992

50
 The rendering of an accounting by an administrator of his
administration within one year from his appointment is
mandatory, as shown by the use of the word "shall" in said rule. The
only exception is when the Court otherwise directs because of
extensions of time for presenting claims against the estate or
for paying the debts or disposing the assets of the estate,
which do not exist in the case at bar.
Likewise, her subsequent compliance in rendering an accounting report
did not purge her of her negligence in not rendering an
accounting for more than six years, which justifies petitioner's
removal as administratrix and the appointment of private respondent
in her place as mandated by Section 2 of Rule 82 of the Rules of Court.
Appellate tribunals are disinclined to interfere with the action taken by
a probate court in the matter of the removal of an executor or
administrator unless positive error or gross abuse of discretion is
shown.
In the case at bar, the removal of petitioner as administratrix
was on the ground of her failure for 6 years and 3 months from
the time she was appointed as administratrix to render an
accounting of her administration as required by Section 8 of
Rule 85 of the Rules of Court.

De Guzman v. De Guzman-Carillo, G.R. No. L-29276 May 18, 1978

An executor or administrator is allowed the necessary expenses in the
care, management, and settlement of the estate. He is 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. He is 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 "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."
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).
ALLOWABLE EXPENSES. Disbursements made by a duly appointed
administrator out of the funds of the estate of a decedent which are
necessary for the care, management, and settlement of the estate and
which redounded to the benefit of all the heirs such as expenses
to cover (1) the improvement and necessary repairs of the family
residence which was partitioned among the eight heirs, five of whom
consented to the disbursement; (2) the lawyer's subsistence; (3) the
cost of the gift to the physician who attended to the testator during his
last illness; and (4) irrigation fees, are allowable.
NON-ALLOWABLE EXPENSES. Disbursements made by an
administrator out of the funds of the estate of a decedent which are
not in connection with the care, management, and settlement of the

51
 estate and which did not inure to the benefit of all the heirs such as
expenses for (1) the living allowance of an heir as occupant of the
family residence without paying rent; (2) stenographic notes; (3) the
celebration of the first death anniversary of the deceased; and (4)
unexplained representation are not allowable.

______________________________________________________________________________

Dizon v. CA, 210 SCRA 107 (1992)

If the defendant dies after final judgment of the Regional Trial Court,
the action (for money, debt or interest thereon) is not dismissed, and
an appeal may be taken by or against the administrator; but if that
judgment against the deceased becomes final and executory, it shall
be enforced, not by execution under Rule 39, but in accordance with
Section 5 of Rule 86, i.e., by presenting the same as a claim against
the estate.
NO PROHIBITION ON FI LI NG OF SECOND MOTI ON FOR RECONSI
DERATI ON OF AN I NTERLOCUTORY ORDER

Peneyra v. IAC, 181 SCRA 244 (1990)

The management of a canteen, even if awarded to a
stockholder, is outside or merely incidental to the central
operations of an educational institution. Petitioners thus
convincingly argue that "the controversy is not one where petitioners
are bringing the action as stockholders but rather as operators of the
canteen under an agreement with said Board. In short, the cause of
action here is for damages arising from a violation of a
contract of management operation of the College canteen by
defendant Dizon." Certainly, the present controversy cannot
qualify as an intracorporate controversy, its root being a
contractual breach separate and distinct from the corporate
relationship between petitioners and Corregidor College, Inc.
The jurisdiction of the SEC is limited to matters intrinsically connected
with the regulation of corporations, partnerships and associations and
those dealing with the internal affairs of such entities. P.D. 902-A does
not confer in the SEC absolute jurisdiction and control over all matters
affecting corporations.
The amendment to include Corregidor College I nc. as additional
defendant cannot be permitted inasmuch as the motion to amend was
made only after petitioners had already rested their case on February
20, 1981. To permit such amendment would obviously delay the
proceedings of the trial court. Needless to say, at that point in the
proceedings, substantial issues have already been joined.
An action for the recovery of damages for injury to personal
property is not extinguished by the death of the defendant.
This is because such action may still be brought against the
executor or administrator of the estate of the defendant. Since
the demolition of petitioners' canteen is a ground for the recovery of
damages arising from injury to personal property, then, as provided in
Section 1 of Rule 87 of the Rules of Court, the deceased defendant

52
 should now be substituted by the executor, administrator or legal
representative of his estate as party-defendant.

Salazar v. CA, 250 SCRA 305 (1995)

The need for substitution of heirs is based on the right to due
process accruing to every party in any proceeding.
GENERAL RULE: A party having died in an action that survives, the trial
held by the court without appearance of the deceased's legal
representative or substitution of heirs and the judgment rendered after
such trial, are null and void because the court acquired no jurisdiction
over the persons of the legal representatives or of the heirs upon
whom the trial and the judgment would be binding.
EXCEPTION: Formal substitution of heirs is not necessary when
the heirs themselves voluntarily appeared, participated in the
case and presented evidence in defense of deceased
defendant.
Consequently, we rule that, as in the case at bench, the defendant in
an ejectment case having died before the rendition by the trial court of
its decision therein, its failure to effectuate a formal substitution
of heirs before its rendition of judgment does not invalidate
such judgment where the heirs themselves appeared before
the trial court, participated in the proceedings therein, and
presented evidence in defense of deceased defendant, it
undeniably being evident that the heirs themselves sought
their day in court and exercised their right to due process.
Ejectment, being an action involving recovery of real property,
is a real action which as such, is not extinguished by the
defendant's death. There is no dispute that an ejectment case
survives the death of a party, which death did not extinguish the
deceased's civil personality. More significantly, a judgment in an
ejectment case is conclusive between the parties and their successors
in interest by title subsequent to the commencement of the action.

Benavidez v. CA, 313 SCRA 715 (1999)

The allegation that an agricultural tenant tilled the land in
question does not automatically make the case an agrarian
dispute which calls for the application of the Agricultural
Tenancy Act and the assumption of jurisdiction by the
Department of Agrarian Reform Adjudication Board (DARAB). It
is necessary to first establish the existence of a tenancy
relationship between the party litigants.
The following essential requisites must concur in order to establish a
tenancy relationship: (a) the parties are the landowner and the tenant;
(b) the subject matter is agricultural land; (c) there is consent; (d) the
purpose is agricultural production; (e) there is personal cultivation by
the tenant; and (f) there is a sharing of harvests between the parties. I
n the instant case, there is no showing that there exists any tenancy
relationship between petitioner and private respondent. Thus, the case
falls outside the coverage of the Agricultural Tenancy Act;
consequently, it is the Municipal Trial Court and not the DARAB which
has jurisdiction over the controversy between petitioner and private
respondent.

53
 The Municipal Trial Court now retains jurisdiction over
ejectment cases even if the question of possession cannot be
resolved without passing upon the issue of ownership
provided that such issue of ownership shall be resolved only
for the purpose of determining possession. In other words, the
fact that the issues of ownership and possession de facto are
intricately interwoven will not cause the dismissal of the ejectment
case on jurisdictional grounds. Thus, the Municipal Trial Court of
Tanay, Rizal, retained its jurisdiction over the case.
Petitioner maintains that the forcible entry case is barred by the DARAB
decision dated 4 March 1992. This contention has no merit. Felino
Mendez, the plaintiff in the DARAB case, is not a party in the forcible
entry case filed before the Municipal Trial Court. His status as private
respondent's tenant and his alleged forcible ejectment from the subject
property is not an issue raised in the forcible entry case. Instead, the
question is the right of private respondent to be restored to
the physical possession of the subject property. Thus, we see
no reason why the DARAB decision should bar the instant case
before us.
It is well settled that the failure of counsel to comply with his
duty under Sec. 16 to inform the court of the death of his
client and no substitution of such party is effected, will not
invalidate the proceedings and the judgment thereon if the
action survives the death of such party. THIS CASE IS REAL
ACTION. Moreover, the decision rendered shall bind his successor in
interest. The instant action for forcible entry, like any action for
recovery of real property, is a real action and as such survives the
death of Ariston Melendres. Thus, the decision rendered by the inferior
court is conclusive between the parties and their successors in interest
by title subsequent to the commencement of the action despite failure
of private respondent's counsel to inform the court of his client's death
and the consequent failure of the court to effectuate a substitution of
heirs before its rendition of judgment.
INFORM THE COURT OF THE FACT OF DEATH AND THE NAME OF
THE LEGAL REPRESENTATIVES, IF NO ADMINISTRATORS YET,
THE NAME AND ADDRESSES OF HEIRS.
The COURT SHALL ISSUE AN ORDER TO SUBSTITUTE
WHAT IS THE LEGAL EFFECT OF THE PROCEEDING IF THERE HAS
BEEN A FAILURE OF THE LAWYER TO INFORM?

Mendoza v. CA, 201 SCRA 675 (1991)

The subsequent death of the father is not a bar to the action
commenced during his lifetime by one who pretended to be his natural
son. It may survive against the executor, administrator, or any other
legal representative of the testate or intestate succession.
We hereby allow the substitution of Casimiro Mendoza pro hac vice and
nunc pro tunc by Vicente Toring, who appears to be the former's
illegitimate son. This disposes of the private respondent's contention
that the lawyer-client relationship terminated with Casimiro's death
and that Vicente has no personality now to substitute him.
Continuous" does not mean that the concession of status shall
continue forever but only that it shall not be of an intermittent
character while it continues. The possession of such status means
that the father has treated the child as his own, directly and not

54
 through others, spontaneously and without concealment though
without publicity (since the relation is illegitimate). There must be a
showing of the permanent intention of the supposed father to consider
the child as his own, by continuous and clear manifestation of paternal
affection and care.
Teopista has not been in continuous possession of the status of a
recognized illegitimate child of Casimiro Mendoza, under both Article
283 of the Civil Code and Article 172 of the Family Code.
But although Teopista has failed to show that she was in open
and continuous possession of the status of an illegitimate child
of Casimiro, we find that she has nevertheless established that
status by another method.
An illegitimate child is allowed to establish his claimed filiation by "any
other means allowed by the Rules of Court and special laws," according
to the Civil Code, or "by evidence or proof in his favor that the
defendant is her father," according to the Family Code. Such evidence
may consist of 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.
REQUISITES FOR PEDIGREE:
1. The declarant is dead or unable to testify;
2. The pedigree must be in issue;
3. The declarant must be a relative of the person whose pedigree is
in issue;
4. The declaration must be made before the controversy arose;
5. The relationship between the declarant and the person whose
pedigree is in question must be shown by evidence other than
such declaration
All the above requisites are present in the case at bar. The persons who
made the declarations about the pedigree of Teopista, namely, the
mother of Casimiro, Brigida Mendoza, and his brother, Hipolito, were
both dead at the time of I saac's testimony. The declarations referred
to the filiation of Teopista and the paternity of Casimiro, which were the
very issues involved in the complaint for compulsory recognition. The
declarations were made before the complaint was filed by Teopista or
before the controversy arose between her and Casimiro. Finally, the
relationship between the declarants and Casimiro has been established
by evidence other than such declaration, consisting of the extrajudicial
partition of the estate of Florencio Mendoza, in which Casimiro was
mentioned as one of his heirs.
The said declarations have not been refuted. Casimiro could have done
this by deposition if he was too old and weak to testify at the trial of
the case.
We hold that by virtue of the above-discussed declarations, and in view
of the other circumstances of this case, Teopista Toring Tuacao has
proved that she is the illegitimate daughter of Casimiro Mendoza and is
entitled to be recognized as such. I n so holding, we give effect to the
policy of the Civil code and the Family Code to liberalize the rule on the
investigation of the paternity of illegitimate children, without prejudice
to the right of the alleged parent to resist the claimed status with his
own defenses, including evidence now obtainable through the facilities
of modern medicine and technology.
THE ACKNOWLEDGE ILLEGITIMATE CHILD HAS THE CAPACITY TO SUE.

55
 PRO HAC VICE

Alipio v. CA, 341 SCRA 441 (2000)

A creditor cannot sue the surviving spouse of a decedent in an
ordinary proceeding for the collection of a sum of money
chargeable against the conjugal partnership and that the
proper remedy is for him to file a claim in the settlement of
estate of the decedent.
The Rule on non-survival of the action does not apply where the action
was filed after the death of the defendant.
As already noted, Rule 3, 20 of the 1997 Rules of Civil
Procedure now provides that the case will be allowed to
continue until entry of final judgment. A favorable judgment
obtained by the plaintiff therein will then be enforced in the
manner especially provided in the Rules for prosecuting claims
against the estate of a deceased person.
Petitioner and her late husband, together with the Manuel spouses,
signed the sublease contract binding themselves to pay the amount of
stipulated rent. Under the law, the Alipios' obligation (and also that of
the Manuels) is one which is chargeable against their conjugal
partnership.
When petitioner's husband died, their conjugal partnership
was automatically dissolved and debts chargeable against it
are to be paid in the settlement of estate proceedings in
accordance with Rule 73, 2. As held in Calma v. Taedo , after the
death of either of the spouses, no complaint for the collection of
indebtedness chargeable against the conjugal partnership can be
brought against the surviving spouse. Instead, the claim must be made
in the proceedings for the liquidation and settlement of the conjugal
property. The reason for this is that upon the death of one
spouse, the powers of administration of the surviving spouse
ceases and is passed to the administrator appointed by the
court having jurisdiction over the settlement of estate
proceedings. ALTHOUGH, THE WIFE MAY BE APPOINTED BUT THERE
HAS TO BE AN APPROVAL BY THE COURT AS A SINE QUA NON. Indeed,
the surviving spouse is not even a de facto administrator such that
conveyances made by him of any property belonging to the
partnership prior to the liquidation of the mass of conjugal partnership
property is void.
It must be noted that for marriages governed by the rules of conjugal
partnership of gains, an obligation entered into by the husband and
wife is chargeable against their conjugal partnership and it is the
partnership which is primarily bound for its repayment. Thus, when
the spouses are sued for the enforcement of an obligation
entered into by them, they are being impleaded in their
capacity as representatives of the conjugal partnership and
not as independent debtors such that the concept of joint or
solidary liability, as between them, does not apply.
THIS IS A COLLECTION CASE AFTER THE DEATH OF THE HUSBAND.
UPON THE DEATH OF EITHER SPOUSE, THE REGIME OF
PROPERTY IS AUTOMATICALLY DISSOLVED.
RULE 73, SEC. 2 applies. THE LIQUIDATION SHALL BE DONE IN
THE SETTLEMENT OF THE ESTATE OF THE DECEASED PERSON.

56
 THE OBLIGATION IN THIS CASE IS THE DEBT OF THE CONJUGAL
PARTNERSHIP. THIS SHOULD BE FILED AS A MONEY CLAIM
AGAINST THE CONJUGAL PARTNERSHIP DURING THE
LIQUIDATION. AFTER THE LIQUIDATION, THE REMAINING SHALL
BE DIVIDED BETWEEN THE SPOUSES.
LIQUIDATE FIRST (PAYMENT OF ALL DEBTS) THEN THE
REMAINING SHALL BE DIVIDED BETWEEN THEM AND SHALL BE
LIABLE FOR THE INDIVIDUAL LIABILITY.

Cerna v. CA, 220 SCRA 517 (1993)

Only Delgado signed the promissory note and accordingly, he
was the only one bound by the contract of loan. Nowhere did it
appear in the promissory note that petitioner was a co-debtor. The law
is clear that "(c)ontracts take effect only between the parties . . ." But
by some stretch of the imagination, petitioner was held solidarily liable
for the debt allegedly because he was a co-mortgagor of the principal
debtor, Delgado. This ignores the basic precept that "(t)here is
solidarily liability only when the obligation expressly so states, or when
the law or the nature of the obligation requires solidarity." The contract
of loan, as evidenced by the promissory note, was signed by Delgado
only. Petitioner had no part in the said contract. Thus, nowhere could it
be seen from the agreement that petitioner was solidarily bound with
Delgado for the payment of the loan.
Signatory to the principal contract of loan is primarily liable;
Third party mortgagor is not solidarily liable. There is no legal
provision nor jurisprudence in our jurisdiction which makes a third
person who secures the fulfillment of another's obligation by
mortgaging his own property to be solidarily bound with the principal
obligor. A chattel mortgage may be "an accessory contract" to a
contract of loan, but that fact alone does not make a third-
party mortgagor solidarily bound with the principal debtor in
fulfilling the principal obligation that is, to pay the loan. The
signatory to the principal contract loan remains to be primarily
bound. I t is only upon the default of the latter that the creditor may
have been recourse on the mortgagors by foreclosing the mortgaged
properties in lieu of an action for the recovery of the amount of the
loan. And the liability of the third-party mortgagors extends
only to the property mortgaged. Should there be any
deficiency, the creditors has recourse on the principal debtor.
A special power of attorney authorizing the mortgage of certain
properties did not make the attorney-in-fact a mortgagor. The
mortgage contract was also signed only by Delgado as mortgagor. The
Special Power of Attorney did not make petitioner a mortgagor. All it
did was to authorized Delgado to mortgage certain properties
belonging to petitioner. And this is in compliance with the requirement
in Article 2085 of the Civil Code which states that: "Art. 2085. The
following requisites are essential to the contracts of pledge and
mortgage: (3) That the persons constituting the pledge or mortgage
have the free disposal of their property, and in the absence thereof,
that they be legally authorized for the purpose." I n effect, petitioner
lent his car to Delgado so that the latter may mortgage the same to
secure his debt. Thus, from the contract itself, it was clear that only
Delgado was the mortgagor regardless of the fact the he used
properties belonging to a third person to secure his debt.

57
 The filing of the collection suit barred the foreclosure of the
mortgage. Thus: "A mortgage who files a suit for collection abandons
the remedy of foreclosure of the chattel mortgage constituted over the
personal property as security for the debt or value of the promissory
note which he seeks to recover in the said collection suit." The reason
for this rule is that: ". . . when, however, the mortgage elects to file a
suit for collection, not foreclosure, thereby abandoning the chattel as
basis for relief, he clearly manifest his lack of desire and interest
to go after the mortgaged property as security for the
promissory note.
Leviste, having chosen to file the collection suit, could not now run
after petitioner for the satisfaction of the debt.

De Jacob v. CA, 184 SCRA 294 (1990)

Section 7, Rule 86 of the Rules of Court clearly recognized that a
mortgagee has three remedies that may be alternately availed of in
case the mortgagor dies, to wit: (1) to waive the mortgage and claim
the entire debt from the estate of the mortgagor as an ordinary
claim (AS MONEY CLAIM AGAINST THE ESTATE); (2) to foreclose the
mortgage judicially and prove the deficiency as an ordinary claim (AS
MONEY CLAIM AGAINST THE ESTATE); and (3) to rely on the mortgage
exclusively, or other security and foreclose the same at anytime,
before it is barred by prescription, without the right to file a claim for
any deficiency. From the foregoing it is clear that the mortgagee
does not lose its right to extrajudicially foreclose the mortgage
even after the death of the mortgagor as a third alternative
under Section 7, Rule 86 of the Rules of Court.
(1) The power to foreclose a mortgage is not an ordinary
agency that contemplated exclusively the representation of
the principal by the agent but is primarily an authority
conferred upon the mortgagee for the latter's own protection.
That power survives the death of the
mortgagor, acting through his attorney-in-fact,
did not depend on the authority in the deed of
mortgage executed by the latter. That right existed
independently of said stipulation and is clearly recognized in Section 7,
Rule 86 of the Rules of Court.
The petition is premised on the assumption that the extrajudicial
foreclosure and auction sale was patently void and was without
basis. On the contrary the appellate court found and so does
this Court, that the extrajudicial foreclosure and auction sale
was regular and in accordance with law. While it is true that the
question of the validity of said mortgage and consequently the
extrajudicial foreclosure thereof was raised in a separate proceeding
before the trial court, the pendency of such separate civil suit can be
no obstacle to the issuance of the writ of possession which is a
ministerial act of the trial court after a title on the property has been
consolidated in the mortgagee.

Maglaque v. PDB, 307 SCRA 156 (1999)

58
 A secured creditor holding a real estate mortgage has three
(3) options in case of death of the debtor. These are: "(1) to
waive the mortgage and claim the entire debt from the estate
of the mortgagor as an ordinary claim; "(2) to foreclose the
mortgage judicially and prove any deficiency as an ordinary
claim; and "(3) to rely on the mortgage exclusively, foreclosing
the same at anytime before it is barred by prescription,
without right to file a claim for any deficiency.
Here, respondent Bank availed itself of the third option.

PNB v. CA, 360 SCRA 370 (2001)

Case law now holds that Section 7, Rule 86 of the Rules of Court grants
to the mortgagee three distinct, independent and mutually exclusive
remedies that can be alternatively pursued by the mortgage creditor
for the satisfaction of his credit in case the mortgagor dies, among
them: (1) to waive the mortgage and claim the entire debt from the
estate of the mortgagor as an ordinary claim; (2) to foreclose the
mortgage judicially and prove any deficiency as an ordinary claim; and
(3) to rely on the mortgage exclusively, foreclosing the same at any
time before it is barred by prescription without right to file a claim for
any deficiency.
The plain result of adopting the last mode of foreclosure is
that the creditor waives his right to recover any deficiency
from the estate. The third mode includes extrajudicial foreclosure
sales, the result of extrajudicial foreclosure is that the creditor waives
any further deficiency claim. "When account is further taken of the fact
that a creditor who elects to foreclose by extrajudicial sale waives all
right to recover against the estate of the deceased debtor for any
deficiency remaining unpaid after the sale.
Clearly, in our view, petitioner herein has chosen the mortgage
creditor's option of extrajudicially foreclosing the mortgaged property
of the Chuas. This choice now bars any subsequent deficiency
claim against the estate of the deceased, Antonio M. Chua.
Petitioner may no longer avail of the complaint for the
recovery of the balance of indebtedness against said estate,
after petitioner foreclosed the property securing the mortgage
in its favor. It follows that this case no further liability remains on the
part of respondents and the late Antonio M. Chua's estate.
EVEN IF THE MORTGAGE IS ENTERED BY THE EXECUTOR AND THE
SAME IS RECORDED IN THE REGISTER OF DEEDS- THE SAME LEGAL
EFFECT; THAT IS THE DEED IS VALID AS IF EXECUTED BY THE
DECEDENT AND THUS THE THREEE OPTIONS REMAIN UNDER RULE 86,
SEC. 7

Gochan v. Young, 354 SCRA 207 (2001)

Where corporate directors have committed a breach of trust either by
their frauds, ultra vires acts, or negligence, and the corporation is
unable or unwilling to institute suit to remedy the wrong, a single
stockholder may institute that suit, suing on behalf of himself and
other stockholders and for the benefit of the corporation, to bring

59
 about a redress of the wrong done directly to the corporation and
indirectly to the stockholders."
Where the shares of stocks are in the name of a deceased person, no
final determination can be had without his estate being impleaded in
the suit dealing with the registration of the shares in the name of the
heirs. It would be useful to point out at this juncture that one of the
causes of action stated in the Complaint filed with the SEC refers to the
registration, in the name of the other heirs of Alice Gochan Young, of
6/14th of the shares still registered under the name of John D. Young
Sr. Since all the shares that belonged to Alice are still in his name, no
final determination can be had without his estate being impleaded in
the suit. His estate is thus an indispensable party with respect to the
cause of action dealing with the registration of the shares in the names
of the heirs of Alice.
Section 3 of Rule 3 and Section 2 of Rule 87, 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.
When no administrator has been appointed, there is all the
more reason to recognize the heirs as the proper
representatives of the deceased. 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.[15] 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[16] 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.

Legal bases of the personality of heirs: acquired by the moment of

death of the decedent
GR: if there is already an administrator, the heirs have no capacity
EXCEPTIONS:

Rioferio v. CA, 419 SCRA 59 (2004)

60
 GENERAL RULE: The heirs have no legal standing to sue for the
recovery of property of the estate during the pendency of
administration proceedings.
EXCEPTIONS:
1. If the administrator is unwilling or refuses to bring the suit;
2. When the administrator is alleged to have participated in the act
complained of and he is made a party defendant;
3. When there is no appointed administrator. In such instance, 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.
Thus, the heirs have legal standing to represent the rights and
properties of the decedent under administration pending the
appointment of an administrator.
WHAT HAPPENS IF DURING THE PENDENCY OF THE CIVIL ACTION
INSTITUTED BY HEIRS AND THEN IN THE INTERIM THE COURT APPOINTS
AN ADMINISTRATOR IN THE SPEC PROC.,CAN THE ADMINISTRATOR
INTERVENE? HE MAY INTERVENE FOR PURPOSES OF PROTECTING THE
ESTATE ONLY TO THAT EXTENT. THE INTEREST OF THE ADMINISTRATOR
IS TO PROTECT THE ESTATE.

Chua v. Absolute Management Corp., 413 SCRA 547 (2003)

Section 6 of Rule 87 seeks to secure evidence from persons
suspected of having possession or knowledge of the properties
left by a deceased person, or of having concealed, embezzled
or conveyed any of the properties of the deceased.
An heir or person interested in the properties of a deceased may call
the court's attention that certain properties, rights or credits are left
out from the inventory. I n such a case, it is likewise the court's duty to
hear the observations of such party. The court has the power to
determine if such observations deserve attention and if such properties
belong prima facie to the estate
In case the shares are eventually included in the estate, this
inventory is merely provisional and is not determinative of the
issue of ownership because a separate action is necessary for
determination of ownership and recovery of possession
However, in such proceedings the trial court has no authority to
decide whether the properties, real or personal, belong to the
estate or to the persons examined. If after such examination
there is good reason to believe that the person examined is
keeping properties belonging to the estate, then the
administrator should file an ordinary action in court to recover
the same. Inclusion of certain shares of stock by the administrator in
the inventory does not automatically deprive the assignees of their
shares. They have a right to be heard on the question of ownership,
when that property is properly presented to the court. TO COMPEL THE
PERSON SUSPECTED TO APPEAR BEFORE THE COURT AND SIT IN THE
WITNESS STAND IN ORDER TO EXAMINE WON THERE IS CONCEALMENT
OR FRAUDULENT CONVEYANCE.

61
 AFTER THE SKILLFUL EXAMINATION IT IS FOUND OUT THAT THERE IS
FRAUDULENT CONVEYANCE: SEPARATE PROCEEDINGS
THE MOTION FOR EXAMINATION WAS DENIED, REMEDY: RULE 65
BECAUSE IT IS INTERLOCUTORY ORDER
In the present case, some of the transferees of the shares of stock do
not appear to be heirs of the decedent. Neither do they appear to be
parties to the intestate proceedings. Third persons to whom the
decedent's assets had been conveyed may be cited to appear in court
and examined under oath as to how they came into possession of the
decedent's assets.
In case of fraudulent conveyances, a separate action is necessary to
recover these assets. Taken in this light, there is no reason why the
trial court should disallow the examination of the alleged transferees of
the shares of stocks. This is only for purposes of eliciting information or
securing evidence from persons suspected of concealing or conveying
some of the decedent's properties to the prejudice of creditors.
Petitioners' admission that these persons are the decedent's assignees
does not automatically negate concealment of the decedent's assets
on their part. The assignment might be simulated so as to place the
shares beyond the reach of creditors. In case the shares are eventually
included in the estate, this inventory is merely provisional and is not
determinative of the issue of ownership. A separate action is necessary
for determination of ownership and recovery of possession.

Maneclang v. Baun, 208 SCRA 179 (1992)

Under Article 1431 of the Civil Code, through estoppel ad admission or
representation is rendered conclusive upon the person making it, and
cannot be denied or disproved as against the person relying thereon.
ESTOPPEL BY PAI S; REQUI SI TES. I n estoppel by pais, as related to
the party sought to be estopped, it is necessary that there be a
concurrence of the following requisites: (a) conduct amounting to false
representation or concealment of material facts or at least calculated
to convey the impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently attempts to
assert; (b) intent, or at least expectation that this conduct shall be
acted upon, or at least infl uenced by the other party; and (c)
knowledge, actual or constructive, of the actual facts.
ESTOPPEL BY CONDUCT; REQUI SI TES. I n estoppel by conduct, on
the other hand, (a) there must have been a representation or
concealment of material facts; (b) the representation must have been
with knowledge of the facts; (c) the party to whom it was made must
have been ignorant of the truth of the matter; and (d) it must have
been made with the intention that the other party would act upon it.
DECEDENT'S REPRESENTATI VE NOT ESTOPPED TO QUESTI ON VALI DI
TY OF HI S OWN AND HI S PREDECESSOR'S ACTS. Not being the party
who petitioned the court for authority to sell and who executed the
sale, she cannot be held liable for any act or omission which could give
rise to estoppel.
As to the heirs, considering that, except as to Oscar Maneclang who
executed the deed of sale in his capacity as judicial administrator, the
rest of the heirs did not participate in such sale, and considering
further that the action was filed solely by the administratrix without the
children being impleaded as parties plaintiffs or intervenors, there is

62
 neither rhyme nor reason to hold these heirs in estoppel. For having
executed the deed of sale, Oscar Maneclang is deemed to have
assented to both the motion for and the actual order granting the
authority to sell. Estoppel operates solely against him.
POSSESSOR I N GOOD FAITH IS ENTI TLED TO FRUI TS RECEI VED
BEFORE POSSESSI ON IS LEGALLY I NTERRUPTED; ENTI TLED TO RETAIN
POSSESSI ON OF PROPERTY UNTI L REI MBURSED FOR USEFUL
EXPENSES
SPECI AL PROCEEDI NGS; SETTLEMENT OF ESTATES OF
DECEASED PERSONS; NOTI CE OF APPLI CATI ON TO SELL PROPERTY OF
DECEDENT
MANDATORY AND ESSENTI AL; EFFECT OF FAI LURE TO COMPLY WI TH
REQUI SI TE; CASE AT BAR. It does not follow that for purposes
of complying with the requirement of notice under Rule 89 of
the Rules of Court, notice to the father is notice to the
children. Sections 2, 4 and 7 of said Rule state explicitly that 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. 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. I n 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.
Consequently, for want of notice to the children, the Order of
September 1949 granting the application, the sale in question
of 4 October 1952 and the Order of 15 March 1954 approving
the sale are all void ab initio as against said children. Severo
Maneclang, however, stands on di fferent ground altogether.
Having been duly notified of the application, he was bound by
the said order, sale and approval of the latter. However, the only
interest which Severo Maneclang would have over the property is his
right of usufruct which is equal to that corresponding by way of
legitime pertaining to each of the surviving children pursuant to Article
834 of the Civil Code of Spain, the governing law at that time since
Margarita Suri Santos died before the effectivity of the Civil Code of the
Philippines.
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 mortgage and therefore
cannot be deprived of the property except in the manner provided by
law.
The parent is a legal guardian. But if the property of the minor exceeds
for 50k, the parents must file a petition in court for the approval of the
guardians bond. Notice to the father is not necessary a notice to the
children.
What is the remedy when there is no guardian ad litem?

63
 The requirement of notice is necessary to bind the heirs. Notice to
counsel binds the clients. If there are known creditors, they must also
be notified.

Lee v. RTC, Quezon City, 423 SCRA 494 (2004)

Where the appropriation of estate properties is invalid, the subsequent
sale thereof to a third party without court approval is likewise
invalid.------ From the above decision, it is clear that Juliana Ortaez,
and her three sons, Jose, Rafael and Antonio, all surnamed Ortaez,
invalidly entered into a memorandum of agreement extrajudicially
partitioning the intestate estate among themselves, despite their
knowledge that there were other heirs or claimants to the estate and
before final settlement of the estate by the intestate court. Since the
appropriation of the estate properties by Juliana Ortaez and her
children (Jose, Rafael and Antonio Ortaez) was invalid, the subsequent
sale thereof by Juliana and Jose to a third party (FLAG), without court
approval, was likewise void.
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.----
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.[20]
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.[21] This means that an heir may only sell his ideal or undivided
share in the estate, not any specific property therein. In the present
case, Juliana Ortaez and Jose Ortaez sold specific properties of the
estate (1,014 and 1,011 shares of stock in Philinterlife) in favor of
petitioner FLAG. This they could not lawfully do 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, as what
happened in the present case.
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,
and any unauthorized disposition of the estate property can be
annulled by the probate court, there being no need for a separate
action to annul the unauthorized disposition.------ Juliana Ortaez and
Jose Ortaez sold specific properties of the estate, without court
approval. It is well-settled that court approval is necessary for the
validity of any disposition of the decedents estate.
The question now is: can the intestate or probate court execute its
order nullifying the invalid sale? We see no reason why it cannot. 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 courts power to annul unauthorized

64
 or fraudulent transactions to prevent the dissipation of estate property
before final adjudication.
Where the issue is the effect of the sale made by the decedents heirs
without the required approval of the intestate court, not with the issue
of inclusion or exclusion of properties in the inventory of the estate, the
determination thereon by the intestate court is not merely
provisional.---- 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 Ortaez. Rather, we are
concerned here with the effect of the sale made by the
decedents heirs, Juliana Ortaez and Jose Ortaez, 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.
The title of a purchaser of an estate property can be struck down by
the intestate court after a clear showing of the nullity of the alienation.
---- The petitioners Jose Lee and Alma Aggabao next contend that the
writ of execution should not be executed against them because they
were not notified, nor they were aware, of the proceedings nullifying
the sale of the shares of stock.

We are not persuaded. The title of the purchaser like herein petitioner
FLAG can be struck down by the intestate court after a clear showing
of the nullity of the alienation. This is the logical consequence of our
ruling in Godoy and in several subsequent cases.[26] 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. Thus, in Juan Lao et al. vs. Hon. Melencio Geneto, G.R. No.
56451, June 19, 1985, we ordered the probate court to cancel the
transfer certificate of title issued to the vendees at the instance of the
administrator after finding that the sale of real property under probate
proceedings was made without the prior approval of the court.
PURPOSE OF THE COURT ORDER:

Acebedo v. Abesamis, 217 SCRA 180 (1993)

In the case of Dillena vs. Court of Appeals (163 SCRA 30 (1988), this
Court made a pronouncement that it is within the jurisdiction of the
probate court to approve the sale of properties of a deceased person
by his prospective heirs before final adjudication. Hence, it is error to
say that this matter should be threshed out in a separate action. The
Court further elaborated that although the Rules of Court 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
in the case at bar, acted within its jurisdiction in issuing the Order
approving the Deed of Conditional Sale.
Petitioners herein anchor their claim on Section 7, Rule 89 of the Rules
of Court. I t is settled that court approval is necessary for the validity of
any disposition of the decedent's estate. However, reference to judicial
approval cannot adversely affect the substantive rights of the heirs to
dispose of their ideal share in the co-heirship and/or co-ownership

65
 among the heirs. This Court had the occasion to rule that there is no
doubt that an heir can sell whatever right, interest, or participation he
may have in the property under administration. This is a matter which
comes under the jurisdiction of the probate court.
CO-OWNERSHIP; RI GHT OF A CO-OWNER TO SELL, ALI ENATE
OR MORTGAGE HI S SHARE I N THE PROPERTY HELD I N
COMMON. The effect of the alienation or the mortgage, with respect
to the co-owners, shall be limited to the portion which be allotted to
him in the division upon the termination of the co-ownership. In other
words, the law does not prohibit a co-owner from selling, alienating or
mortgaging his ideal share in the property held in common.
PURPOSE OF COURT ORDER: RULE 89- FOR LIMITED PURPOSE- THAT
IS

Heirs of Sandejas v. Lina, G.R. No. 141634, February 5, 2001 (351

SCRA 183)
Issue: WON the CA erred in modifying the trial courts Decision
and in obligating petitioners to sell 3/5 of the disputed
properties to respondent, even if the suspensive condition had
not been fulfilled.
No. The agreement between the deceased Eliodoro
Sandejas Sr. and respondent was not a contract to sell
but a conditional sale. In a contract to sell, the payment of the
purchase price is a positive suspensive condition. The vendors
obligation to convey the title does not become effective in case
of failure to pay. The agreement between Eliodoro Sr. and
respondent is subject to a suspensive condition -- the
procurement of a court approval, not full payment. There was
no reservation of ownership in the agreement. In accordance
with paragraph 1 of the Receipt, petitioners were supposed to
deed the disputed lots over to respondent. This they could do
upon the courts approval, even before full payment. Hence,
their contract was a conditional sale, rather than a contract to
sell as determined by the CA. When a contract is subject to a
suspensive condition, its birth or effectivity can take place only if
and when the condition happens or is fulfilled. Thus, the intestate
courts grant of the Motion for Approval of the sale filed by
respondent resulted in petitioners obligation to execute the
Deed of Sale of the disputed lots in his favor. The condition
having been satisfied, the contract was perfected. Henceforth,
the parties were bound to fulfill what they had expressly agreed
upon.
Court approval is required in any disposition of the decedent s
estate per Rule 89 of the Rules of Court. Reference to judicial
approval, however, cannot adversely affect the substantive
rights of heirs to dispose of their own pro indiviso shares
in the co-heirship or co-ownership. In other words,
they can sell their rights, interests or participation in the
property under administration.
A stipulation requiring court approval does not affect the validity
and the effectivity of the sale as regards the selling heirs. It

66
 merely implies that the property may be taken out of custodia
legis, but only with the courts permission.
Thus, we are not persuaded by petitioners argument that the
obligation was converted into a mere monetary claim since the
sale was approved by the intestate court.
Because petitioners did not consent to the sale of their ideal
shares in the disputed lots, the CA correctly limited the scope
of the Receipt to the pro-indiviso share of Eliodoro Sr.
Thus, it correctly modified the intestate courts ruling by
excluding their shares from the ambit of the transaction.
Issue: WON the CA erred in clothing the settlement court with
the jurisdiction to approve the sale and to compel petitioners
to execute the Deed of Sale.
No. Section 8 of Rule 89 allows this action to proceed. Probate
jurisdiction covers all matters relating to the settlement of
estates (Rules 74 & 86-91) and the probate of wills (Rules 75-77)
of deceased persons, including the appointment and the removal
of administrators and executors (Rules 78-85). It also extends to
matters incidental and collateral to the exercise of a probate
courts recognized powers such as selling, mortgaging or
otherwise encumbering realty belonging to the estate. Indeed,
the rules on this point are intended to settle the estate in a
speedy manner, so that the benefits that may flow from such
settlement may be immediately enjoyed by the heirs and the
beneficiaries.
In the present case, the Motion for Approval was meant to settle
the decedents obligation to respondent; hence, that obligation
clearly falls under the jurisdiction of the settlement court. To
require respondent to file a separate action -- on whether
petitioners should convey the title to Eliodoro Sr. s share of the
disputed realty -- will unnecessarily prolong the settlement of the
intestate estates of the deceased spouses.
The suspensive condition did not reduce the conditional sale
between Eliodoro Sr. and respondent to one that was not a
definite, clear and absolute document of sale, as contended by
petitioners. Upon the occurrence of the condition, the
conditional sale became a reciprocally demandable obligation
that is binding upon the parties.
WON the settlement court allegedly erred in entertaining and granting
respondents Motion for Approval by arguing that only the executor or
administrator is authorized to apply for the approval of a sale of realty
under administration.
We read no such limitation. Section 8 of Rule 89 mentions only
an application to authorize the conveyance of realty under a
contract that the deceased entered into while still alive. While
this Rule does not specify who should file the application,
it stands to reason that the proper party must be one
who is to be benefited or injured by the judgment, or one
who is to be entitled to the avails of the suit.
This provision should be differentiated from Sections 2 and 4 of
the same Rule, specifically requiring only the executor or
administrator to file the application for authority to sell,
mortgage or otherwise encumber real estate for the purpose of
paying debts, expenses and legacies (Section 2); or for authority
to sell real or personal estate beneficial to the heirs, devisees or

67
 legatees and other interested persons, although such authority is
not necessary to pay debts, legacies or expenses of
administration (Section 4).
WON Eliodoro Sr. was in bad faith.
No. Eliodoro Sr. did not misrepresent these lots to respondent as
his own properties to which he alone had a title in fee simple.
The fact that he failed to obtain the approval of the conditional
sale did not automatically imply bad faith on his part.
WON Eliodoros share is 11/20 or 3/5 of the disputed lots.
Eliodoros share should be 11/20 of the entire property. As the
conjugal partner of Remedios, he owned one half of these lots
plus a further one tenth of the remaining half, in his capacity as a
one of her legal heirs. The CA erred when it computed Eliodoros
share as an heir based on one tenth of the entire disputed
property. It should be based only on the remaining half, after
deducting the conjugal share.
The rights of the heirs to succession accrued at the moment of death.
However, there shall first a settlement of the estate.
LINA IS ONLY AN INTERVENOR YET IT IS STILL OKAY.
IF NO COURT APPROVAL, RESTITUTION.

Natcher v. CA, 366 SCRA 385 (2001)

SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE OF DECEASED
PERSON; JURISDICTION OF PROBATE COURT; INCLUDES QUESTIONS AS
TO ADVANCEMENT MADE OR ALLEGED TO HAVE BEEN MADE BY THE
DECEASED TO ANY HEIRS; APPLI CATI ON IN CASE AT BAR.
The Regional Trial Court in the instant case, acting in its general
jurisdiction, was devoid of authority to render an adjudication and
resolve the issue of advancement of the real property in favor of herein
petitioner. In this case, the RTC of Manila was not properly constituted
as a probate court so as to validly pass upon the question of
advancement made by the decedent to his wife, herein petitioner. The
petition was, therefore, dismissed.
Action for reconveyance and annulment of title with damages is a civil
action, whereas matters relating to settlement of the estate of a
deceased person such as advancement of property made by the
decedent, partake of the nature of a special proceeding, which
concomitantly requires the application of specific rules as provided for
in the Rules of Court.
The long standing principle that although generally, a probate court
may not decide a question of title or ownership, yet if the interested
parties are all heirs, or the question is one of collation or advancement
or the parties consent to the assumption of jurisdiction by the probate
court and the rights of third parties are not impaired, then the probate
court is competent to decide the question of ownership.
Of equal importance is that before any conclusion about the legal
share due to a compulsory heir may be reached, it is necessary that a
certain steps be taken first. The net estate of the decedent must be
ascertained, by deducing all payable obligations and charges from the
value of the property owned by the deceased at the time of his death;
then, all donations subject to collation would be added to it. With the
partible estate thus determined, the legitime of the compulsory heir or

68
 heirs can be established; and only thereafter can it be ascertained
whether or not a donation had prejudiced the legitimes.
THE SECOND WIFE IS STILL ENTITLED TO AN HEIR BUT NOT A BUYER
OR A DONEE. THE PROCEDURE IS NOT TO CONSIDER AS AN
ADVANCEMENT. BUT A SEPARATE SPECIAL PROCEEDINGS.

Estate of Ruiz v. CA, 252 SCRA 541 (1996)

It is settled that allowances for support under Section 3 of Rule 83
should not be limited to the "minor or incapacitated" children of the
deceased. Article 188 of the Civil Code of the Philippines, the
substantive law in force at the time of the testator's death, provides
that during the liquidation of the conjugal partnership, deceased's
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.
The law clearly limits the allowance to "widow and children" and does
not extend it to the deceased's grandchildren, regardless of their
minority or incapacity.
WHEN DISTRIBUTION OF ESTATE PROPERTIES CAN BE MADE. In
settlement of estate proceedings, the distribution of the
estate properties 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.
Respondent courts also erred when they ordered the release of the
titles of the bequeathed properties to private respondents six months
after the date of first publication of notice to creditors.
GR: Estate tax must be paid before the 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.
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. I t was correct
for the probate court to require him to submit an accounting of the
necessary expenses for administration before releasing any further
money in his favor.
AFTER THE PROBATE OF THE WILL BUT BEFORE OF OBLIGATION, THE
COURT MAY GRANT ALLOWANCE ONLY TO HEIRS PAYMENT (surviving
spouse, children even of age, and incapacitated) BUT NOT EXTENDED
ON GRANDCHIDREN; The heirs may

69
 WHAT IS VESTED IS ONLY THE RESIDUE of the estate after the payment
of the obligation. Gross estate less obligation.
RESIDUE: When all the obligations have been paid, the remaining
property is the residue which the court may order to deliver to the
heirs.
AT WHAT STAGE OF THE PROCEEDINGS THAT THE COURT WILL
DETERMINE WHO ARE THE LAWFUL HEIRS. (Determination first before
distribution.)

Solivio v. CA, 182 SCRA 119 (1990)

It is the order of distribution directing the delivery of the residue of the
estate to the person entitled thereto that brings to a close the intestate
proceedings, puts an end to the administration and thus far relieves
the administrator from his duties. The assailed order of Judge Adil in
Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of
Esteban Javellana, Jr. did not toll the end of the proceedings

Issue: WON Branch 26 of the RTC of Iloilo had jurisdiction to

entertain Civil Case No. 13207 for partition and recovery of
Concordia Villanueva's share of the estate of Esteban
Javellana, Jr. even while the probate proceedings (Spl. Proc.
No. 2540) were still pending in Branch 23 of the same court.
The orders of the Regional Trial Court, Branch 26, in Civil Case
No. 13207 setting aside the probate proceedings in Branch 23
(formerly Branch 11) on the ground of extrinsic fraud, and
declaring Concordia Villanueva to be a co-heir of Celedonia to the
estate of Esteban, Jr., ordering the partition of the estate, and
requiring the administratrix, Celedonia, to submit an inventory
and accounting of the estate, were improper and officious, to
say the least, for these matters he within the exclusive
competence of the probate court.
We find merit in the petitioner's contention that the Regional Trial
Court, Branch 26, lacked jurisdiction to entertain Concordia
Villanueva's action for partition and recovery of her share of the
estate of Esteban Javellana, Jr. while the probate proceedings
(Spl, Proc. No. 2540) for the settlement of said estate are still
pending in Branch 23 of the same court, there being as yet no
orders for the submission and approval of the administratix's
inventory and accounting, distributing the residue of the estate
to the heir, and terminating the proceedings.
In the interest of orderly procedure and to avoid confusing and
conflicting dispositions of a decedent's estate, a court should not
interfere with probate proceedings pending in a co-equal court.
Her remedy when the court denied her motion, was to
elevate the denial to the Court of Appeals for review on
certiorari. However, instead of availing of that remedy,
she filed more than one year later, a separate ordinary
action for the same purpose in Branch 26 of the court. We
hold that the separate action was improperly filed for it is the
probate court that has exclusive jurisdiction to make a just and
legal distribution of the estate.
Pimentel v. Palanca, 5 Phil. 436: A separate action for the
declaration of heirs is not proper.

70
 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, 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.

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 The probate court, in the exercise of its
jurisdiction to make distribution, has power to determine the proportion
or parts to which each distributed is entitled. ... The power to
determine the legality or illegality of the testamentary provision is
inherent in the jurisdiction of the court making a just and legal
distribution of the inheritance. ... To hold that a separate and
independent action is necessary to that effect, would be contrary to
the general tendency of the jurisprudence of avoiding multiplicity of
suits; and is further, expensive, dilatory, and impractical.
The decision of the trial court and the Court of Appeals are hereby SET
ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban
Javellana, Jr. entitled to one-half of his estate. However, comformably
with the agreement between her and her co-heir, Celedonia Solivio, the
entire estate of the deceased should be conveyed to the "Salustia
Solivio Vda. D Javallana Foundation," of which both the petitioner and
the private respondent shall be trustees, and each shall be entitled to
nominate an equal number of trustees to constitute th Board of
Trustees of the Foundation which shall administer the same for the
purposes set forth in its charter. The petitioner, as administratrix of the
estate, shall submit to the probate court an inventory and accounting
of the estate of the deceased preparatory to terminating the
proceedings therein.
Her admission may not be taken lightly as the lower court did. Being a
judicial admission, it is conclusive and no evidence need be presented
to prove the agreement.
WHAT IS THE EFFECT OF INAPPROPRIATE REMEDY? SHE LOST
IS ACTUAL DELIVERY NECESSARY TO CONSIDER AS DEEMED
TERMINATED? (Project of partition and then the court approved the
project, then the court will ISSUE and order to deliver the property
based on the project.
While the proceedings are not yet close, any person interested may
join.
RE-open

Vda. Kilayco v. Tengco, 207 SCRA 600 (1992)

Her admission may not be taken lightly as the lower court did. Being a
judicial admission, it is conclusive and no evidence need be presented
to prove the agreement.
The probate court, having the custody and control of the entire estate,
is the most logical authority to effectuate this provision, within the
estate proceeding, proceeding being the most convenient one in which
this power and function of the court can be exercised and performed

71
 without the necessity of requiring the parties to undergo the
inconvenience and litigate an entirely different action.
Any any challenge to the validity of a will, any objection to the
authentication thereof, and every demand or claim which any heir,
legatee or party interested in a testate or intestate succession may
make, must be acted upon and decided within the same special
proceedings, not in a separate action, and the same judge having
jurisdiction in the administration of the estate shall take cognizance of
the question raised, inasmuch as when the day comes he will be called
upon to make distribution and adjudication of the property to the
interested parties.
The probate court, in the exercise of its jurisdiction to distribute the
estate, has the power to determine the proportion or parts to which
each distributee is entitled.
A project of partition is merely a proposal for the distribution of the
hereditary estate whic the court may accept or reject. It is the court
that makes that distribution of the estate and determines the persons
entitled thereto.
In the instant case, the records will show that in the settlement of the
testate estate of Maria Lizares, the executrix, Eustaquia Lizares
submitted on J anuary 8, 1971, a project of partition in which the
parcels of land, subject matters of the complaint for reconveyance,
were included as property of the estate and assigned exclusively to
Eustaquia as a devisee of Maria Lizares. I n accordance with said
project of partition which was approved by the probate court,
Encarnacion Lizares Vda. de Panlilio, Remedios Lizares Vda. de Guinto,
Felicidad Paredes Llopez, Rosario Paredes Mendoza and Eustaquia
Lizares executed an Agreement of Partition and Subdivision on
November 28, 1972, whereby they agreed to terminate their
coownership over Lots Nos. 550, 514, 553, 1287-C of SWO-7446 and
552 covered by Transfer Certificates of Title Nos. T-65004, T-65005, T-
65006, T-65007 and T65008. These facts taken altogether show that
the Lizares sisters recognized the decree of partition sanctioned by the
probate court and in fact reaped the fruits thereof.
Hence, they are now precluded from attacking the validity of the
partition or any part of it in the guise of a complaint for reconveyance.
The partition barred any 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. The
question of private respondents' title over the lots in question has been
concluded by the partition and became a closed matter.
Moreover, it cannot be denied that when Celsa L. Vda. de Kilay ko, et
al. moved for the reopening of the testate estate proceedings of Maria
Lizares, the judicial decree of partition and order of closure of such
proceedings was already final and executory, the then reglementary
period of thirty (30) days having elapsed from the time of its issuance,
with no timely appeal having been filed by them. Therefore, they
cannot now be permitted to question the adjudication of the properties
left by will of Maria Lizares, by filing an independent action for the
reconveyance of the very same properties subject of such partition.
A final decree of distribution of the estate of a deceased person vests
the title to the land of the estate in the distributees. I f the decree is
erroneous, it should be corrected by opportune appeal, for once it
becomes final, its binding effect is like any other judgment in rem,
unless properly set aside for lack of jurisdiction or fraud. Where the
court has validly issued a decree of distribution and the same has

72
 become final, the validity or invalidity of the project of partition
becomes irrelevant.
Even then, the better practice to secure relief is the opening of the
same by proper motion within the reglementary period, instead of an
independent action, the effect of which if successful, would be for
another court or judge to throw out a decision or order already final
and executed and reshuffle properties long ago distributed and
disposed of.
I t should be remembered that when a testator merely names an heir
and provides that if such heir should die a second heir also designated
shall succeed, there is no fideicommissary substitution since there was
no obligation to preserve the estate.
The substitution should then be construed as a vulgar or simple
substitution under Art. 859 of the Civil Code but it shall be effective
only if the first heir dies before the testator. I n this case, the
instituted heir, Eustaquia, survived the testatrix, Maria Lizares. Hence,
there can be no substitution of heirs for, upon Maria Lizares death, the
properties involved unconditionally devolved upon Eustaquia.
With respect to the cancellation of the notice of lis pendens on the
properties involved, there is no merit in the contention of Celsa L. Vda.
de Kilay ko, et al., that the lower court acted contrary to law and/or
gravely abused its discretion in cancelling the notice of lis pendens.
More so in this case where it turned out that their claim to the
properties left by Eustaquia is without any legal basis.
PROJECT OF PARTITION BY THE ADMINISTRATOR IS NOT CONCLUSIVE
THE COURT MAY REFUSE TO ACCEPT & REQUEST FOR AMENDMENT.
MERE PROPOSAL;

Pagkatipunan v. IAC, 198 SCRA 719 (1991)

It is a basic rule that before any conclusion about the legal share due
to the heirs may be reached, it is necessary that certain steps be taken
first. The trial court failed to consider among others, Articles 908 and
1061 of the Civil Code . I t is undeniable that numerous donations inter
vivos were made by J ose Velasquez, Sr. in favor of some of his
compulsory heirs. Likewise, no collation of the donations he executed
during his lifetime was undertaken by the trial court. With the avowed
specific provisions of the laws respecting collation, which are ruled
controlling even in intestate succession, this Court finds that the lower
court's ruling adjudicating the remaining portion of the conjugal estate
to the private respondents is purely speculative and conjectural.
The fact that they had succeeded in securing title over the said parcels
of land does not warrant the reversal of the trial court's ruling that the
sales and assignments were sham and fictitious. A Torrens title does
not furnish a shield for fraud notwithstanding the long-standing rule
that registration is a constructive notice of title binding upon the whole
world. The legal principle is that if the registration of the land is
fraudulent and the person in whose name the land is registered thus
holds it as a mere trustee, the real owner is entitled to file an action for
reconveyance of the property within a period of ten years. Since
petitioners asserted claims of exclusive ownership over the said
parcels of land but acted in fraud of the private respondents, the
former may be held to act as trustees for the benefit of the latter,
pursuant to the provision of Article 1456 of the Civil Code.
The properties were acquired on November 19, 1918 by the
spouses Jose Velasquez, Sr. and Victoria Real from Estanislao
73
 Balasoto (Exh. H-5, Commissioner). Said property was originally
declared for taxation purposes in the names of said spouses.
Relative to the sale executed by Canuta Pagkatipunan to the
spouses Magdalena Pagkatipunan and Moises Santos; the resale
of the same property to her; and the subsequent deeds of
assignment she executed in favor of her children, the trial court
had clearly established that Canuta Pagkatipunan employed
fraudulent acts to acquire title over the said properties. Hence,
the trial court, as well as the respondent court are correct in
ruling that the said sales and assignments are null and void,
sham and fictitious.
But while the trial court has the authority to order the
reconveyance of the questioned titles, We cannot agree that
the reconveyance should be made in favor of the private
respondents. The reason is that it is still unproven whether or
not the private respondents are the only ones entitled to the
conjugal properties of J ose Velasquez, Sr. and Victorina Real. I
t is to be noted that as the lawful heirs of J ose Velasquez, Sr. the
herein petitioners are also entitled to participate with his conjugal
share. To reconvey said property in favor of the private respondents
alone would not only be improper but will also make the situation more
complicated. There are still things to be done before the legal share of
all the heirs can be properly adjudicated.
No conclusion as to the legal share due to the compulsory heirs can be
reached in this case without (1) determining first the net value of the
estate of J ose Velasquez, Sr.; (2) collating all the donations inter vivos
in favor of some of the heirs; and (3) ascertaining the legitime of the
compulsory heirs.

ACCORDINGLY, the decision of the trial court as modified by the respondent appellate court is
hereby SET ASIDE except insofar as it:

(a) declared the properties listed in the Inventory submitted by the commissioners
on May 9, 1975 as belonging to the estate of the conjugal partnership of the
spouses Jose Velasquez, Sr. and Victorina Real;

(b) declared null and void, sham and fictitious, the following sales, transfers,
assignments or conveyances:

1) the sale executed by Canuta Pagkatipunan in favor of her sister

Magdalena Pagkatipunan; 2) the resale of the same property
executed in favor of Canuta Pagkatipunan; and 3) the deeds of
assignments executed by Canuta Pagkatipunan in favor of her 13
children; covering the properties listed in Items 7 and 8;

(c) declared as null and void all the other conveyances made by
Canuta Pagkatipunan with respect to Item No. 13 of the inventory;
and

d) dismissed the case against the other defendants except Canuta

Pagkatipunan and her children and the spouses Moises Santos and
Magdalena Pagkatipunan.

Civil Case No. SC-894 is hereby remanded to the Regional Trial Court of Laguna, for further
proceedings and the same Court is directed to:

a) follow the procedure for partition herein prescribed;

b) expand the scope of the trial to cover other possible illegal dispositions of the
first conjugal partnership properties not only by Canuta Pagkatipunan but also by
the other heirs as can be shown in the records;

74
 c) include the one-fourth (1/4) share of Jose Velasquez, Sr. in the residential house
in Quezon City with his conjugal share under his first marriage, if any, to
determine his net estate at the time of his death.

Heirs of Fran v. Salas, 210 SCRA 303 (1992)

We do not hesitate to rule that the respondent Judge committed grave
abuse of discretion amounting to lack of jurisdiction when he granted
the Omnibus Motion for Reconsideration and thereafter set aside the
probate judgment of 13 November 1972 in Sp. Proc. No. 3309-R,
declared the subject will of the testatrix a forgery, nullified the
testamentary dispositions therein and ordered the conversion of the
testate proceedings into one of intestacy.
After the probate court rendered its decision on 13 November 1972,
and there having been no claim presented despite publication of notice
to creditors, petitioner Fran submitted a Project of Partition
which private respondent Maria M. Vda. de Gandiongco
voluntarily signed and to which private respondent Espina
expressed her conformity through a certification filed with the
probate court. Assuming for the sake of argument that private
respondents did not receive a formal notice of the decision as they
claim in their Omnibus Motion for Reconsideration, these acts
nevertheless constitute indubitable proof of their prior actual
knowledge of the same. A formal notice would have been an idle
ceremony. In testate proceedings, a decision logically precedes
the project of partition, which is normally an implementation
of the will and is among the last operative acts to terminate
the proceedings. If private respondents did not have actual
knowledge of the decision, they should have desisted from performing
the above acts and instead demanded from petitioner Fran the
fulfillment of his alleged promise to show them the will. The same
conclusion refutes and defeats the plea that they were not notified of
the order authorizing the Clerk of Court to receive the evidence and
that the Clerk of Court did not notify them of the date of the reception
of evidence. Besides, such plea must fail because private respondents
were present when the court dictated the said order.
This Court in Laluan vs. Malpaya recognized and upheld the practice of
delegating the reception of evidence to Clerks of Court.
The alternative claim that the proceedings before the Clerk of Court
were likewise void because said official did not take an oath is likewise
untenable. The Clerk of Court acted as such when he performed the
delegated task of receiving evidence. It was not necessary for him to
take an oath for that purpose; he was bound by his oath of office as a
Clerk of Court. Private respondents are obviously of the impression that
by the delegation of the reception of evidence to the Clerk of Court,
the latter became a commissioner as defined under Rule 33 of the
Rules of Court entitled Trial by Commissioner.
It is not necessary that the original of the will be attached to
the petition. That the annexing of the original will to the
petition is not a jurisdictional requirement is clearly evident in
Section 1, Rule 76 of the Rules of Court which allows the filing
of a petition for probate by the person named therein
regardless of whether or not he is in possession of the will, or
the same is lost or destroyed

75
 It is not likewise disputed that the original of the will was submitted in
evidence and marked as Exhibit "F". It forms part of the records of the
special proceedings a fact which private respondents admit in their
Omnibus Motion for Reconsideration.
Granting for the sake of argument that the non-fulfillment of said
promise constitutes fraud, such fraud is not of the kind which provides
sufficient justification for a motion for reconsideration or a petition for
relief from judgment under Rule 37 and Rule 38, respectively, of the
Rules of Court, or even a separate action for annulment of judgment. It
is settled that for fraud to be invested with, sufficiency, it must be
extrinsic or collateral to the matters involved in the issues raised
during the trial which resulted in such judgment.
It is not difficult to see that private respondents had lost their right to
file a petition for relief from judgment, it appearing that their omnibus
motion for reconsideration was filed exactly six (6) years, ten (10)
months and twenty-two (22) days after the rendition of the decision,
and six (6) years, one (1) month and thirteen (13) days after the court
issued the order approving the Project of Partition, to which they
voluntarily expressed their conformity through their respective
certifications, and closing the testate proceedings.
In Our jurisdiction, the following courses of action are open to an
aggrieved party to set aside or attack the validity of a final judgment:
4. Petition for relief under Rule 38 of the Rules of Court which must
be filed within sixty (60) days after learning of the decision, but
not more than six (6) months after such decision is entered;
5. By direct action, via a special civil action for certiorari, or by
collateral attack, assuming that the decision is void for want of
jurisdiction;
6. By an independent civil action under Article 1114 of the Civil
Code, assuming that the decision was obtained through fraud
and Rule 38 can not be applied.
The probate judgment of 13 November 1972, long final and
undisturbed by any attempt to unsettle it, had inevitably
passed beyond the reach of the court below to annul or set the
same aside, by mere motion, on the ground that the will is a
forgery. Settled is the rule that the decree of probate is conclusive
with respect to the due execution of the will and it cannot be impugned
on any of the grounds authorized by law, except that of fraud, in any
separate or independent action or proceeding. We wish also to advert
to the related doctrine which holds that final judgments are
entitled to respect and should not be disturbed; otherwise,
there would be a wavering of trust in the courts.
The non-distribution of the estate, which is vigorously denied by
the petitioners, is not a ground for the re-opening of the testate
proceedings. A seasonable motion for execution should have
been filed. In De Jesus vs. Daza, this Court ruled that if the executor
or administrator has possession of the share to be delivered,
the probate court would have jurisdiction within the same
estate proceeding to order him to transfer that possession to
the person entitled thereto. This is authorized under Section 1, Rule
90 of the Rules of Court. However, if no motion for execution is
filed within the reglementary period, a separate action for the
recovery of the shares would be in order.

76
 GUARDIANSHIP
Nery v. Lorenzo, G.R. No. L-23376, April 1, 1972
Service of the notice upon the minor if above 14 years of age or upon
the incompetent, is jurisdictional. Without such notice, the court
acquires no jurisdiction to appoint a guardian. Respondent Court of
Appeals cannot therefore be sustained in its assumption that the
probate court could have authorized the sale in question. The
jurisdictional infirmity was too patent to be overcome.
The Lorenzo children would have been better protected if they were
notified as is required by law.
Where minors are involved, the State acts as parens patriae. To it is
cast the duty of protecting the rights of persons or individual who
because of age or incapacity are in an unfavorable position, vis-a-vis
other parties. Unable as they are to take due care of what concerns
them, they have the political community to look after their welfare.
This obligation the state must live up to. It cannot be recreant to such
a trust.
As a member of the bar, he could not have been unaware that his
vendor could not sell to him more than she rightfully could dispose of.
It is much too late in the day to depart from the well-settled principle
as to a trustee being incapable of acquiring interest opposed to that of
his principal.
That Dionisio, Perfecto, Maria Rebecca, Asuncion, Mauro and Lourdes,
all surnamed Lorenzo, children of the deceased Leoncio Lorenzo and
Bienvenida de la Isla are adjudged co-owners to the extent of one-half
of the three-fourths of the property in question, as was decreed by the
lower court, the appealed decision of the Court of Appeals is affirmed.
THERE IS NO NEED TO FILE BECAUSE THE PARENTS ARE
AUTOMATICALLY THE GUARDIAN EXCEPT WHEN THE VALUE IS 50K OR
MORE- APPROVAL OF GUARDIANS BOND

Francisco v. CA, G.R. No. L-57438, January 3, 1984 (127 SCRA 371)
A guardianship is a trust relation of the most sacred character, in which
one person, called a "guardian" acts for another called the "ward"
whom the law regards as incapable of managing his own affairs. A
guardianship is designed to further the ward's well-being, not that of
the guardian.
Having in mind that guardianship proceeding is instituted for the
benefit and welfare of the ward, the selection of a guardian
must, therefore, suit this very purpose. Thus, in determining the
selection of a guardian, the court may consider the financial situation,
the physical condition, the sound judgment, prudence and
trustworthiness, the morals, character and conduct, and the present
and past history of a prospective appointee, as well as the probability
of his, being able to exercise the powers and duties of guardian for the
full period during which guardianship will be necessary.

77
 A guardian is or becomes incompetent to serve the trust if he is so
disqualified by mental incapacity, conviction of crime, moral
delinquency or physical disability as to be prevented from properly
discharging the duties of his office. A guardian, once appointed
may be removed in case he becomes insane or otherwise
incapable of discharging his trust or unsuitable therefor, or
has wasted or mismanaged the estate, or failed for thirty (30)
days after it is due to render an account or make a return.
Replacement of petitioner as guardian is proper.---- We agree
with the trial court and the appellate court that there is need for
petitioner Feliciano Francisco to be retired from the guardianship over
the person and property of incompetent Estefania San Pedro. The
conclusion reached by the trial court about the "rather
advanced age" of petitioner at 72 years old (petitioner is now
76 years old) finding him unfit to continue the trust cannot be
disturbed. As correctly pointed out by the appellate court, this finds
direct support in the delay of the accounting and inventory made by
petitioner. To sustain petitioner as guardian would, therefore, be
detrimental to the ward. While age alone is not a control criterion
in determining a person's fitness or qualification to be
appointed or be retained as guardian, it may be a factor for
consideration.
Execution pending appeal of an order appointing a new
guardian is proper where there are compelling reasons
therefor.--- With respect to the issue of execution pending appeal in
appointing respondent Pelagio Francisco as guardian to succeed
petitioner while the latter's appeal was still pending, We hold and rule
that respondent appellate court correctly sustained the propriety of
said execution pending appeal. Upon urgent and compelling reasons,
execution pending appeal is a matter of sound discretion on the part of
the trial court, and the appellate court will not interfere, control or
inquire into the exercise of this discretion, unless there has been an
abuse thereof, which We find none herein.
Inasmuch as the primary objective for the institution of
guardianship is for the protection of the ward, there is more
than sufficient reason for the immediate execution of the
lower court's judgment for the replacement of the first
guardian. An indefinite continuance in office would defeat the intent
and purpose of the order of September 12, 1980, relieving the present
guardian (Feliciano Francisco).
The rule is well-established that appellate courts may not entertain
issues brought before it for the first time on appeal.
THERE IS DELAY IN RENDERING AN ACOUNTING,
THE ISSUE WON HE IS OLDER IS INDEPENDENT; THE FACT THAT NEW
ONE IS OLDER THIS DOES NOT MEAN THAT HE WILL BE REAPPOINTED.

Uy v. CA, G.R. No. 109557, November 29, 2000

WON petitioner Gilda L. Jardeleza as the wife of Ernesto Jardeleza, Sr.
who suffered a stroke, a cerebrovascular accident, rendering him
comatose, without motor and mental faculties, and could not manage
their conjugal partnership property may assume sole powers of
administration of the conjugal property under Article 124 of the Family
Code and dispose of a parcel of land with its improvements.
78
 No. In regular manner, the rules on summary judicial proceedings
under the Family Code govern the proceedings under Article 124
of the Family Code. The situation contemplated is one
where the spouse is absent, or separated in fact or has
abandoned the other or consent is withheld or cannot be
obtained. Such rules do not apply to cases where the
non-consenting spouse is incapacitated or incompetent to
give consent.
In this case, the trial court found that the subject spouse "is an
incompetent" who was in comatose or semi-comatose condition,
a victim of stroke, cerebrovascular accident, without motor and
mental faculties, and with a diagnosis of brain stem infarct. In
such case, the proper remedy is a judicial guardianship
proceedings under Rule 93.
Even assuming that the rules of summary judicial proceedings
under the Family Code may apply to the wife's administration of
the conjugal property, the law provides that the wife who
assumes sole powers of administration has the same powers and
duties as a guardian under the Rules of Court. Consequently, a
spouse who desires to sell real property as such
administrator of the conjugal property must observe the
procedure for the sale of the wards estate required of
judicial guardians under Rule 95, 1964 Revised Rules of
Court, not the summary judicial proceedings under the
Family Code.
In the case at bar, the trial court did not comply with the
procedure under the Revised Rules of Court. Indeed, the trial
court did not even observe the requirements of the summary
judicial proceedings under the Family Code. Thus, the trial court
did not serve notice of the petition to the incapacitated spouse; it
did not require him to show cause why the petition should not be
granted.
Hence, we agree with the Court of Appeals that absent an opportunity
to be heard, the decision rendered by the trial court is void for lack of
due process. The doctrine consistently adhered to by this Court is that
a denial of due process suffices to cast on the official act taken by
whatever branch of the government the impress of nullity.[11] A
decision rendered without due process is void ab initio and may be
attacked directly or collaterally.[12] A decision is void for lack of due
process if, as a result, a party is deprived of the opportunity of being
heard.[13] A void decision may be assailed or impugned at any time
either directly or collaterally, by means of a separate action, or by
resisting such decision in any action or proceeding where it is invoked.
PETITION FOR INCOMPETENT- DETERMINE THE VALUE; EITHER MTC OR
RTC
PETITON WHEN THE CHILD IS A MINOR- FAMILY COURT REGARDLESS OF
THE VALUE OF THE PROPERTY

Vda. de Baluyot v. Luciano, G.R. No. L-42215, July 13, 1976

79
 On matters determining a persons competency to manage her affairs,
a guardianship proceeding may be suspended to await
resolution of that issue in the proceeding for the settlement of a
decedents estate in connection with the appointment of the
administrator of the estate.
From the fact that a person may be incompetent to act as
executor or administrator, it does not follow that he could be
placed under guardianship. But if a person is competent to act as
executor or administrator, then he is not the incompetent person
envisaged in the law of guardianship.
Where guardianship court is apprised of an order in the
settlement of estate proceedings that alleged incompetent is
competent to be an administrator, the guardianship court
should avoid issuance of a conflicting pronouncement. The
lower court, upon being apprised of the foregoing conclusion of the
probate judge, should have at least tried to take judicial notice of what
was happening in the administration proceeding.
A finding that a person is incompetent should be anchored on clear,
positive and definite evidence. That kind of proof has not yet been
presented to the guardianship court to justify its precipitate conclusion
that Mrs, Baluyut is an incompetent.
A court errs in declaring a person incompetent before it sets
the psychiatrist report for cross-examination and before it has
examined the alleged incompetent in open court. ---- What the
guardianship court did (as the saying goes) was to take the second
step before having taken the first step. It declared Mrs. Baluyut as an
incompetent and then scheduled the cross-examination of the
psychiatrist so that the parties could ascertain whether the declaration
of incompetency is correct or not. In the nature of things, the
guardianship court should have first set for hearing the psychiatrist's
report and examined Mrs. Baluyut before prematurely adjudging that
she is an incompetent. Its hasty and premature pronouncement, with
its derogatory implications, was not the offspring of fundamental
fairness which is the essence of due process.
Moreover, the lower court should have adhered strictly to the
procedure laid down in Rule 93 of the Rules of Court for
appointment of guardians. Rule 93 provides that after the
filing of the petition, the court should fix a time and place for
hearing and give the proper notices. At the hearing, "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" (Sec. 5, Rule 93).
In the instant case, the lower court before hearing the evidence of the
parties, particularly Mrs. Baluyutm immediately subjected her to a
psychiatric examination. That unorthodox procedure was not
warranted.
In guardianship proceeding, the court must first hear the
evidence of the parties and examine the perspective ward
before subjecting the latter to psychiatric examination.
Guardianship court should resolve first whether filing and legal
research fees were paid by the petitioners in the guardianship
proceedings.

80
 Panlilio v. Salonga, G.R. No. 113087, June 27, 1994
The doctrine of judicial stability or non-interference in the regular
orders or judgments of a co-equal court, as an accepted axiom in
adjective law, serves as an insurmountable barrier to the competencia
of the Makati court to entertain the habeas corpus case on account of
the previous assumption of jurisdiction by the Cavite court, and the
designation of petitioners as guardians ad litem of the ward.
While habeas corpus is the proper remedy to regain custody of
minor children, yet this principle is understood to presuppose
that there is no other previous case whose issue is necessarily
interwoven with the nature of a habeas corpus proceeding.
Verily, the existence of an anterior suit, such as the termination of
private respondent's parental authority in the Cavite court, coupled
with the order appointing principal petitioners as guardians ad litem of
the ward, is sufficient to momentarily stave off private respondent's
short-cut and subtle attempt to regain custody of her son at another
forum, by reason of the corollary principle that initial acquisition of
jurisdiction by a court of concurrent jurisdiction divests another of its
own jurisdiction.
And certainly, given the propensity of the Makati court to intrude and
render nugatory an order or decision of another co-equal court,
certiorari is the appropriate relief against deviation from the doctrine of
judicial comity.
Of course, we are not unmindful of private respondent's
protestations on the manner the order of petitioners'
appointment as guardian ad litem was effected but her
insinuations on this score should be first addressed to, and
resolved by, the Cavite court, not to mention the availability of
appeal therefrom in the event an unfavorable decision is
finally made.
Not to be ignored too, is private respondent's reliance on Articles 176
and Article 213 of the Family Code, with reference to the parental
authority of the mother over her illegitimate child and the general
proscription that no child under 7 years shall be separated from the
mother except under certain cases. Again, these matters would be
relevant in and capable of resolution in the case filed in Cavite, but
may not now be utilized by herein private respondent to assail the
authority of the Cavite court for the simple, nay, obvious reason that
these considerations are matters of defense which may be availed of
by private respondent to ward off the suit for termination of her
parental authority.
WHEREFORE, the petition is hereby granted and the Honorable Josefina
G. Salonga, Presiding Judge of Branch 149 of the Regional Trial Court of
Makati is hereby directed to dismiss the habeas corpus case.
THE PETITION FOR HABEAS CORPUS IS NOT PROPER BECAUSE the
grandparents CUSTODY over the CHILD has A LEGAL BASIS SINCE
THEY WERE APPOINTED GUARDIAN AD LITEM before the Cavite Court.

Luna v. IAC, G.R. No. 68374, June 18, 1985

Issue: WON procedural rules more particularly the duty of lower courts
to enforce a final decision of appellate courts in child custody cases,
should prevail over and above the desire and preference of the child, to
81
 stay with her grandparents instead of her biological parents and who
had signified her intention Up kill herself or run away from home if she
should be separated from her grandparents and forced to live with her
biological parents.
General Rule: It is a well-known doctrine that when a judgment
of a higher court is returned to the lower court, the only
function of the latter court is the ministerial one of
issuing the order of execution. The lower court cannot
vary the mandate of the superior court, or examine it, for
any other purpose than execution; nor review it upon any
matter decided on appeal or error apparent; nor
intermeddle with it further than to settle so much as has
been demanded.
However, it is also equally well-known that a stay of execution
of a final judgment may be authorized whenever it is
necessary to accomplish the ends of justice as when
there had been a change in the situation of the parties
which makes such execution inequitable; or when it appears
that the controversy had never been submitted to the judgment
of the court; or when it appears that the writ of execution has
been improvidently issued; or that it is defective in substance; or
is issued against the wrong party; or that the judgement debt
has been paid or otherwise satisfied; or when the writ has been
issued without authority.
In the instant case, the manifestation of the child Shirley that
she would kill herself or run away from home if she should be
taken away from the herein petitioners and forced to live with
the private respondents, made during the hearings on the
petitioners' motion to set aside the writ of execution and
reiterated in her letters to the members of the Court dated
September 19, 1984 and January 2, 1985, 5 and during the
hearing of the case before this Court, is a circumstance that
would make the execution of the judgment rendered in Spec.
Proc. No. 9417 of the Court of First Instance of Rizal
inequitable, unfair and unjust, if not illegal.
Article 363 of the Civil Code provides that in all questions relating to
the care, custody, education and property of the children, the latter's
welfare is paramount. This means that the best interest of the
minor can override procedural rules and even the rights of
parents to the custody of their children. Since, in this case, the
very life and existence of the minor is at stake and the child is
in an age when she can exercise an intelligent choice, the
courts can do no less than respect, enforce and give meaning
and substance to that choice and uphold her right to live in an
atmosphere conducive to her physical, moral and intellectual
development. The threat may be proven empty, but Shirley has a
right to a wholesome family life that will provide her with love, care
and understanding, guidance and counseling. and moral and material
security.
To return her to the custody of the private respondents to face the
same emotional environment which she is now complaining of would
be indeed traumatic and cause irreparable damage to the child. As
requested by her, let us not destroy her future.
BEST INTEREST OF THE CHILD

82
 Inton v. Quintana, G.R. No. L-1236, May 26, 1948
The difference in the ages and in the legal capacity to contract of the
four brothers and sisters created distinct liabilities on their part. The
court below disregarded or overlooked this distinction, and to this
extent it erred.
The first proposition formulated in the stipulation by the parties can
affect only the signers of the deed of conveyance, Marcelo and Fe
Sevara. Antonio and Olimpia, who were under age and took no part in
the sale, are not bound by the agreement, regardless of its term and
its intention of the contracting parties, unless the minors' action is
barred by the statue of limitations, or the defendants possession has
ripened into title by prescription, or estoppel has intervened.
Although the mother was said to be the minor children's guardian an
allegation on which there is not the slightest evidence it does not
appear that she was autorized to enter into this transaction or that the
sale was appraoved by the competent court. Without the court's
authority or approval, the sale was ineffective as to the minor children
even if she were the minors' judicial guardian. A guardian has no
authority to sell real estate of his ward, merely by reason of his general
powers, and in the absence of any special authority to sell conferred by
will, statue, or order of court. A sale of the wards realty of guardian
without authority of the court is void.
It follows that if what the mother stipulated is immaterial, and this
branch of the case can affect only Marcelo Inton and Fe Severa Inton
and their shares in the land.
The reasonable interpretation of the condition of ratification seems
therefore to be that it was in the nature of an option extended to the
buyers either to call off the whole transaction or to stick to the sale
with reference to the shares of the adult children who had full capacity
to dispose of their property independently of the minor children's
future action.
In the case of executory interest, the doctrine of laches applies fully,
and in order to obtain relief plaintiff must come into court without
unreasonable delay. Where however, plaintiff come into equity,
not for the creation or establishment of the executory right,
but for the mere protection of an executed or vested legal
right, the doctrine of laches has little if any, application. The
rule here applied is that, unless the statutory period of limitations has
run or sufficient time has elapsed to create a presumption of grant, no
mere delay is a bar to equitable relief in support of a legal right, and
that plaintiff is precluded from relief only by such conduct as create an
abandonment of the legal right itself, or an estoppel to assert it against
defendants.
The plaintiffs Antonio and Olimpia E. Inton are not trying to protect an
executory right but to vindicate a legal right.
In conclusion, we hold void in sale as to the shares of Antonio Inton and
Olimpia Inton, and valid as to Marcelo's and Fe Severa's shares.
Antonio and Olimpia shall refund to the defendant the sum paid by the
Quintanas for the former's shares P400.

Margate v. Rabacal, G.R. No. L-14302, April 30, 1963

83
 The cancellation of the authority to sell did not, and could not, affect,
the rights of the buyer, because "at the time that the order cancelling
the authority to sell was entered, the guardian, Julia Rabacal, had
already acted in accordance with authority, Exhibit C, and sold the land
to Jose F. Margate.The authority of the Court had already been
exhausted, after it was fulfilled by the guardian, and there was nothing
to cancel.
With respect to the lack of approval of the sale by the court, His Honor
held that the law merely requiresthat the guardian should be
authorized, and that the authority to sell did not impose the condition
that the deed of sale executed by the guardian shouldbe approved by
the Court. The approval of the sale by the court, under the facts and
circumstances obtaining in this case, would then be merely pro-forma,
since the appellants were not able to show any reason why the
guardianship could would have refused to approved the sale which was
already a fait accompli and within the authority given by said court.
The appellants should be the last to impugn the lack of approval of the
sale. The defeat was not substantial so as to render the sale invalid or
void. Being the petitioners-vendors in Exhibit B, appellants cannot
validly attack the proceedings had in the sale, on certain formal
technicalities, considering the fact that they were the very persons
who requested, obliged and prayed the court in the guardianship
proceedings to approve the said sale, and that they had derived the
utmost advantage and benefit out of the proceeds thereof. They are
not estopped from asserting a fact inconsistent with their previous
acts.
Under the old Civil Code (whose provisions should apply), Julia Rabacal
was entitled to one-half (1/2) as her share in the conjugal property. This
being the case, at least, the one-half portion belonging to her which
was included in the sale of the entire property to the appellee, could
stand as legal and valid. In her behalf, she could dispose of her share,
even without the benefit of judicial approval which merely goes to
show that, the sale of the entire or whole property in question, was not
altogether null and void.
The rules alleged to have been violated, (Secs. 2, 3 and 4, of Rule 96,
Rules of Court) refer to the proceedings in the guardianship court and
not to the proceedings in the registration court, where the Registration
Law.
There being a presumption that the sale in question is valid, the same
can not be attacked collaterally in the registration proceedings.
Appellants should have filed a separate action to avoid or rescind the
said sale, on the ground specified by law.
IT CANNOT PREJUDICE THE BUYER

San Diego v. Nombre, G.R. No. L-19265, May 29, 1964

Issue: Whether a judicial administrator can validly lease property of the
estate without prior judicial authority and approval.
We believe that the Court of Appeals was correct in sustaining
the validity of the contract of lease in favor of Escanlar,
notwithstanding the lack of prior authority and approval.
The Rules provides that an executor or administrator shall have
the right to the possession of the real as well as the personal
estate of the deceased so long as it is necessary for the payment

84
 of the debts and the expenses of administration, and shall
administer the estate of the deceased not disposed of by his will.
Lease has been considered an act of administration,
While it may be admitted that the duties of a judicial administrator and
an agent (petitioner alleges that both act in representative capacity),
are in some respects, identical, the provisions on agency (Art. 1878,
C.C.), should not apply to a judicial administrator.
A judicial administrator is appointed by the Court. He is not only the
representative of said Court, but also the heirs and creditors of the
estate (Chua Tan v. Del Rosario, 57 Phil. 411). A judicial administrator
before entering into his duties, is required to file a bond. These
circumstances are not true in case of agency. The agent is only
answerable to his principal. The protection which the law gives the
principal, in limiting the powers and rights of an agent, stems from the
fact that control by the principal can only be thru agreements, whereas
the acts of a judicial administrator are subject to specific provisions of
law and orders of the appointing court. The observation of former Chief
Justice Moran, as quoted in the decision of the Court of Appeals, is
indeed sound, and We are not prone to alter the same, at the moment.
Moran: The executor or administrator has the power of
administering the estate of the deceased for purposes of
liquidation and distribution. He may, therefore, exercise all
acts of administration without special authority of the Court.
For instance, he may lease the property without securing
previously any permission from the court. And where the lease
has formally been entered into, the court cannot, in the same
proceeding, annul the same, to the prejudice of the lessee,
over whose person it had no jurisdiction. The proper remedy
would be a separate action by the administrator or the heirs to
annul the lease. ... .
NOT AN ORIDINARY AGENCY

Viloria v. Administrator of Veterans Affairs, G.R. No. L-9620, June 28, 1957
The provisions of the U.S. Code, invoked by the appellant, make the
decisions of the U.S. Veteran Administrator final and conclusive when
made on claims properly submitted to him for resolution; but they are
not applicable to the present case, where the Administrator is not
acting as a judge but as a litigant. There is a great difference between
actions against the Administrator (which must be filed strictly in
accordance with the conditions that are imposed by the Veterans' Act,
including the exclusive review by United States courts), and those
actions where the veterans' Administrator seeks a remedy from our
courts and submits to their jurisdiction by filing actions therein. Our
attention has not been called to any law or treaty that would make the
findings of the Veterans' Administrator, in actions where he is a party,
conclusive on our courts. That in effect, would deprive our tribunals or
judicial discretion and render them mere subordinate instrumentalities
of the veterans' Administrator.
From the time the amounts now sought to be recovered where paid to
the appellee guardian, for the ward's benefit, the latter became their
lawful possessor and he can not be deprived thereof on the sole
allegation of the Veterans' Administrator that the money was
erroneously paid. The burden lies upon him to satisfy the court that the
alleged mistake was really committed; and the Philippine courts'
85
 determination of the question is as binding upon the Veterans'
Administrator as upon any other litigant.
Concerning the claim itself, we agree with the court below that
it was not properly filed in the guardianship proceedings, since
the latter are solely concerned with the ward's care a custody
and the proper administration or 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.
FILE A SEPARATE ACTION

Liom [Lim] Siok Huey v. Lapiz, G.R. No. L-12289, May 28, 1958
find no error in the findings made by the trial court. Indeed, the same
is supported by the record and the evidence. Thus, it appears that the
plaintiffs who are the widow and children of the deceased Chua Pua
Lun are all citizens and residents of Communist China and
notwithstanding the fact that they have been informed of the death of
the deceased, they 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. The most that they contain was an inquiry with regard
to the progress of the case and the administration of the duck-raising
business which the deceased left in the Philippines. Such certainly
cannot be considered as an authority to the present counsel to
file and prosecute the present case in behalf of the widow and
children now residing in Communist China.
It should be noted that the present action was initiated by
plaintiffs represented merely by their counsel and the question arose
as to whether the latter had the proper authority to represent the
former in view of the fact that they are all residents of a foreign
country. And the question was properly raised in view of the rule that,
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. "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 ."
It is true that one Chua Pua Tam was appointed as guardian ad litem of
two of plaintiffs who allegedly are minors to represent them in the
prosecution of the present case, but 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.
need hereto show that Chua Pua Tam was authorized by the heirs
abroad to act as such in behalf of the minors for it was in this belief
that he was so appointed by the trial court. But when in the course of
the," trial it developed that he never had any communication with any
of the heirs and much less received any authority from them either to
prosecute this case or to act, as such guardian in behalf of the minors,
the trial court lost no time in disauthorizing him and considering his
representation ineffective.

86
 The contention that the trial court considered the issue regarding the
lack of authority on the part of counsel to represent plaintiffs in this
case or of Chua Pua Tam to act as guardian ad litem of the minors even
if the same was not raised by any of the opposing parties or their
counsel, cannot be entertained, it appearing that 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.".
THE DEFECT WAS NOT CURED; SINCE THE CASE ITSELF IS NOT
FILED BY PARTIES IN INTEREST

Cui v. Piccio, G.R. No. L-5131, July 31, 1952

WON the trial court in the guardianship proceedings lacked jurisdiction
to issue the order directing the petitioners herein to deliver to the
guardian Victorino Reynes the rentals collected by them from the
building and authorizing said guardian to collect future rentals.
Neither in gaurdianship 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. We believe that the purpose of these two rules, Rule 97,
section 6 and Rule 88, section 6 of the Rules of Court is merely to
secure evidence from persons suspected of embezzling,
concealing or conveying away any property of the ward or of the
deceased so as to enable said guardian or administrator to
institute the appropriate action to obtain the possession of and
secure title to said property, all for the protection of the interests
of the ward and the estate of the deceased.
The court may issue an order directing the delivery or return of
any property embezzled, concealed or conveyed which belongs
to a ward, where the right or title of said ward is clear and
indisputable.
We believe, however, that where title to any property said to be
embezzled, concealed or conveyed is in question as in the
present case, the determination of said title or right whether in
favor of the ward or in favor of the persons said to have
embezzled, concealed or conveyed the property must be
determined in a separate ordinary action and not in guardianship
proceedings.
In the present case, is the right of the ward, Don Mariano,
to the rentals of the 12-door building, clear and
indisputable? The answer is definitely in the negative.
Without any attempt or desire to determine the rights or lack of
right of the ward to said rentals and prejudge the civil action No.
R-1720 brought by the guardian in the Court of First Instance of

87
 Cebu to recover said rentals, on the basis only of the documents
involved or presented in this certiorari proceedings and without
any additional evidence, these are reasons to believe that the
scales of title instead of favoring the ward, incline more in favor
of and point to the owners of the building. We need not estate
those reasons here.
In conclusion, we hold that the respondent Judge had no
jurisdiction to issue his order of September 5, 1951, in
the guardianship proceedings requiring the petitioners to
deliver the rentals collected by them to the guardian and
authorizing the latter to collect rentals in the future, for
the reason that the jurisdiction of the court guardianship
proceedings, ordinarily, is to cite persons suspected of
having embezzled, concealed or conveyed property
belonging to the ward for the purpose of obtaining
information which may be used in an action later to be
instituted by the guardian to protect the right of the
ward; and that only in extreme cases, where property
clearly belongs to the ward or where his title thereto has
already been judicially decided, may the court direct its
delivery to the guardian.
Except when it is so clear that it belongs to one party. In
this case, not yet clear.

Vancil v. Helmes, G.R. No. 132223, June 19, 2001

Vda. de Chua v. CA, G.R. No. 116835. March 5, 1998
Pineda v. CA, G.R. No. 105562 September 27, 1993
It is clear from Article 225 of the Family Code that regardless of the
value of the unemancipated common child's property, the father and
mother ipso jure become the legal guardian of the child's property.
However, if the market value of the property or the annual income of
the child exceeds P50,000.00, a bond has to be posted by the parents
concerned to guarantee the performance of the obligations of a
general guardian.
It must, however, be noted that the second paragraph of Article 225 of
the Family Code speaks of the "market value of the property or the
annual income of the child," which means, therefore, the aggregate of
the child's property or annual income; if this exceeds P50,000.00, a
bond is required. There is no evidence that the share of each of the
minors in the proceeds of the group policy in question is the minor's
only property. Without such evidence, it would not be safe to conclude
that, indeed, that is his only property.

DEFECT; NEGLIGENT ANG INSURANCE COMPANY; ASSUMING THAT THE SPA IS

VALID IN FORM- HOWEVER, THE BENEFICIARIES ARE CHILDREN
REPRESENTED BY THE PARENTS AND THE PARENTS GIVE SPA TO THE
CAPTAIN.
THERE MUST BE A BOND.

88
 ADOPTION
Lahom v. Sibulo, G.R. No. 143989, July 14, 2003

It was months after the effectivity of R.A. No. 8552 that herein
petitioner filed an action to revoke the decree of adoption granted in
1975. By then, the new law,22 had already abrogated and repealed the
right of an adopter under the Civil Code and the Family Code to rescind
a decree of adoption. Consistently with its earlier pronouncements, the
Court should now hold that the action for rescission of the adoption
decree, having been initiated by petitioner after R.A. No. 8552 had
come into force, no longer could be pursued.
While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a
consequential right to rescind the adoption decree even in cases where
the adoption might clearly turn out to be undesirable, it remains,
nevertheless, the bounden duty of the Court to apply the law. Dura lex
sed lex would be the hackneyed truism that those caught in the law
have to live with. It is still noteworthy, however, that an adopter, while
barred from severing the legal ties of adoption, can always for valid
reasons cause the forfeiture of certain benefits otherwise accruing to
an undeserving child. For instance, upon the grounds recognized by
law, an adopter may deny to an adopted child his legitime and, by a
will and testament, may freely exclude him from having a share in the
disposable portion of his estate.

The cause of action is governed by the law enforce at the time.

WHEREFORE, the assailed judgment of the court a quo is AFFIRMED.

Republic v. Elepano, G.R. No. 92542, October 15, 1991

In brief, the argument of the OSG is that depositions should not be

allowed in adoption proceedings until the publication requirement has
been fully complied with.
The petition has no merit.

While it is true that in an action in personam, personal service of

summons within the forum or voluntary appearance in the case is
essential for the court to acquire jurisdiction over the person of the
defendant, in an adoption case which involves the status of a
person, there is no particular defendant to speak of since the
action is one in rem. In such case, jurisdiction over the person
of the defendant is a non-essential condition for the taking of
a deposition for the jurisdiction of the court is based on its
power over the res, to render judgment with respect to such
"thing" (or status, as in this case) so as to bar indifferently all
who might be minded to make an objection against the right
so established.

89
 Indeed, publication of the scheduled hearing for the petition
for adoption is necessary for the validity of a decree of
adoption but not for the purpose merely of taking a deposition.
In taking a deposition, no substantial rights are affected since
depositions may or may not be presented or may even be objected to
when formally offered as evidence at the trial of the main case later
on.

THERE IS NO NEED FOR THE COURT TO ACQUIRE THE JURISIDICTION

OVER THE DEFENDANT PRECISELY BECAUSE THERE IS NO DEFENDANTS
TO SPEAK OF.

THE PURPOSE OF

In the instant case, We find no abuse of discretion committed by the

respondent judge in allowing the taking of private respondent's
deposition. Due to urgent and compelling reasons beyond her control,
private respondent could not be present to testify at the trial of the
main case for adoption. The OSG, however, was notified of the
scheduled taking of the deposition, as well as of all the hearings of the
petition for adoption, but the OSG chose not to attend ALL the said
hearings, without explanation. The OSG, therefore, has no reason to
invoke lack of procedural due process. Finally, it must not be forgotten
that the philosophy behind adoption statutes is to promote the welfare
of the child and every reasonable intendment should be sustained to
promote that objective. In the instant case, the record shows that
private respondent's adoption of the minors shall redound to the best
interests of the latter.

Cang v. CA, G.R. No. 105308,September 25, 1998 (re: construction of

adoption laws; substantial compliance rule; parental consent in adoption
proceedings; meaning of abandonment)

In the instant case, only the affidavit of consent of the natural mother was attached to the petition
for adoption. Petitioner's consent, as the natural father is lacking. Nonetheless, the petition
sufficiently alleged the fact of abandonment of the minors for adoption by the natural father. The
allegations of abandonment in the petition for adoption, even absent the written consent of
petitioner, sufficiently vested the lower court with jurisdiction since abandonment of the child by
his natural parents is one of the circumstances under which our statutes and jurisprudence 16
dispense with the requirement of written consent to the adoption of their minor children.However,
in cases where the father opposes the adoption primarily because his consent thereto was not
sought, the matter of whether he had abandoned his child becomes a proper issue for
determination. The issue of abandonment by the oppositor natural parent is a preliminary issue
that an adoption court must first confront.

Jurisdiction being a matter of substantive law, the established rule is

that the statute in force at the time of the commencement of the
action determines the jurisdiction of the court. As such, when private
respondents filed the petition for adoption on September 25, 1987, the
applicable law was the Child and Youth Welfare Code, as amended by
Executive Order No. 91.

90
 Notwithstanding the amendments to the law, the written consent of the
natural parent to the adoption has remained a requisite for its validity.
Notably, such requirement is also embodied in Rule 99 of the Rules of
Court. As clearly inferred from the foregoing provisions of law, the written
consent of the natural parent is indispensable for the validity of the decree
of adoption. ||

Nevertheless, the requirement of written consent can be dispensed with if

the parent has abandoned the child or that such parent is "insane or
hopelessly intemperate." The court may acquire jurisdiction over the case
even without the written consent of the parents or one of the parents
provided that the petition for adoption alleges facts sufficient to warrant
exemption from compliance therewith. This is in consonance with the
liberality with which this Court treats the procedural aspect of adoption.
The allegations of abandonment in the petition for adoption, even absent
the written consent of petitioner, sufficiently vested the lower court with
jurisdiction since abandonment of the child by his natural parents is one of
the circumstances under which our statutes and jurisprudence dispense
with the requirement of written consent to the adoption of their minor
children |||

In the instant case, only the affidavit of consent of the natural mother was
attached to the petition for adoption. Petitioner's consent, as the natural father is
lacking|||

WHO MUST GIVE CONSENT:

1. NATURAL PARENTS
2. LEGITIMATE AND ILLEGITIMATE CHILDREN (PROVIDED LIVING)
AND BOTH ARE OF 10 AGE OR MORE
3. LEGAL GUARDIAN IF ANY
4. PERSONNEL FROM DSWD IN CASE IN CUSTODY OF THE GOVT

WON THE PETITIONER HAS ABANDONED THE CHILDREN, THEREBY

MAKING HIS CONSENT TO THE ADOPTION UNNECESSARY:
In reference to abandonment of a child by his parent, the act of
abandonment imports "any conduct of the parent which evinces
a settled purpose to forego all parental duties and relinquish all
parental claims to the child." It means "neglect or refusal to
perform the natural and legal obligations of care and support
which parents owe their children.
This Court finds that both the lower court and the Court of Appeals failed to
appreciate facts and circumstances that should have elicited a different
conclusion on the issue of whether petitioner has so abandoned his
children, thereby making his consent to the adoption unnecessary. In the
instant case records disclose that petitioner's conduct did not manifest a
settled purpose to forego all parental duties and relinquish all parental
claims over his children as to constitute abandonment. Physical

91
 estrangement alone, without financial and moral desertion, is not
tantamount to abandonment. While admittedly, petitioner was physically
absent as he was then in the United States, he was not remiss in his
natural and legal obligations of love, care and support for his children. He
maintained regular communication with his wife and children through
letters and telephone. He used to send packages by mail and catered to
their whims. Indeed, it would be against the spirit of the law if financial
consideration were to be the paramount consideration in deciding whether
to deprive a person of parental authority over his children. There should be
a holistic approach to the matter, taking into account the physical,
emotional, psychological, mental, social and spiritual needs of the child.
The conclusion of the courts below that petitioner abandoned his family
needs more evidentiary support other than his inability to provide them the
material comfort that his admittedly affluent in-laws could provide. There
should be proof that he had so emotionally abandoned them that his
children would not miss his guidance and counsel if they were given to
adopting parents. The letters he received from his children prove that
petitioner maintained the more important emotional tie between him and
his children. The children needed him not only because he could cater to
their whims but also because he was a person they could share with their
daily activities, problems and triumphs. The law is clear that either parent
may lose parental authority over the child only for a valid reason. No such
reason was established in the legal separation case. In the instant case for
adoption, the issue is whether or not petitioner had abandoned his children
as to warrant dispensation of his consent to their adoption. Deprivation of
parental authority is one of the effects of a decree of adoption. But there
cannot be a valid decree of adoption in this case precisely because, as this
Court has demonstrated earlier, the finding of the courts below on the issue
of petitioner's abandonment of his family was based on a misappropriation
that was tantamount to non-appreciation, of facts on record. Said petition
must be denied as it was filed without the required consent of their father
who, by law and under the facts of the case at bar, has not abandoned
them.|||

In a number of cases, this Court has held that parental authority cannot be
entrusted to a person simply because he could give the child a larger
measure of material comfort than his natural parent. (Cang v. Court of
C|||

Appeals, G.R. No. 105308, September 25, 1998)

The actuality that petitioner carried on an affair with a paramour cannot be
taken as sufficient basis for the conclusion that petitioner was necessarily
an unfit father. Conventional wisdom and common human experience show
that a "bad" husband does not necessarily make a "bad" father. That a
husband is not exactly an upright man is not, strictly speaking, a sufficient

92
 ground to deprive him as a father of his inherent right to parental authority
over the children. (Cang v. Court of Appeals, G.R. No. 105308, September
|||

25, 1998)
The discretion to approve adoption proceedings is not to be
anchored solely on best interests of the child but likewise, with due
regard to the natural rights of the parent over the child. (countervailing
|||

standard)
The transfer of custody over the children to Anna Marie by virtue of the decree of
legal separation did not, of necessity, deprive petitioner of parental authority for
the purpose of placing the children up for adoption. As such, in instant case,
petitioner may not be deemed as having been completely deprived of
parental authority, notwithstanding the award of custody to Anna Marie in
the legal separation case. To reiterate, that award was arrived at by the
lower court on the basis of the agreement of the spouses | (Cang v. Court
.||

of Appeals, G.R. No. 105308, September 25, 1998)

AT THE FIRST INSTANCE, THE COURT ACQUIRES JURISDICTION
DESPITE THE NON-PRESENTATION OF AFFIDAVIT OF CONSENT,
THERE WAS SUFFICIENT ALLEGATION OF ABANDONMENT;
HOWEVER, THE HUSBAND APPEAR QUESTIONING
ABANDONMENT. SO IT MUST BE SETTLED.

Badua v. CA, G.R. No. 105625, January 24, 1994 (re: effect of non-observance
or non-conduct of adoption proceedings)
Petitioner's insistence on the applicability of Articles 164, 166, 170 and
171 of the Family Code to the case at bench cannot be sustained. 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 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,
petitioner is not a legal heir of the deceased.
The mere registration of a child in his or her birth certificate
as the child of the supposed parents is not a valid adoption,
does not confer upon the child the status of an adopted child
and the legal rights of such child, and even amounts of
simulation of the child's birth or falsification of his or her birth
certificate, which is a public document.
The Certificate of Live Birth registered on December 28, 1954 appears
to have been signed by the deceased Vicente Benitez. Under Article
410 of the New Civil Code, however, "the books making up the Civil
Registry and all documents relating thereto shall be
considered public documents and shall be prima facie evidence
of the facts therein stated."
As related above, the totality of contrary evidence, presented by the
private respondents sufficiently rebutted the truth of the content
of petitioner's Certificate of Live Birth of said rebutting

93
 evidence, the most telling was the Deed of Extra-Judicial
Settlement of the Estate of the Deceased Isabel Chipongian
(Exh. "E") executed on July 20, 1982 by Vicente Benitez, and Dr.
Nilo Chipongian, a brother of Isabel. In their notarized document,
they stated that "(they) are the sole heirs of the deceased Isabel
Chipongian because she died without descendants or ascendants". In
executing this Deed, Vicente Benitez effectively repudiated the
Certificate of Live Birth of petitioner where it appeared that he was
petitioner's father. The repudiation was made twenty-eight years after
he signed petitioner's Certificate of Live Birth.

Republic v. Toledano, G.R. No. 94147, June 8, 1994 (re: joint adoption by
husband and wife)
THE HW SHALL ADOPT JOINTLY

Under Articles 184 and 185 of Executive Order (E.O.) No. 209,
otherwise known as "The Family Code of the Philippines", private
respondents spouses Clouse are clearly barred from adopting Solomon
Joseph Alcala.
Article 184, paragraph (3: An alien, except:
(a) A former Filipino citizen who seeks to adopt a relative by
consanguinity;
(b) One who seeks to adopt the legitimate child of his or her Filipino
spouse; or
(c) One who is married to a Filipino citizen and seeks to adopt jointly
with his or her spouse a relative by consanguinity of the latter. NO
LONGER CONTROLLING

Aliens not included in the foregoing exceptions may adopt Filipino

children in accordance with the rules on inter-country adoption as may
be provided by law.
There can be no question that private respondent Alvin A. Clouse is not
qualified to adopt Solomon Joseph Alcala under any of the exceptional
cases in the aforequoted provision. In the first place, he is not a former
Filipino citizen but a natural born citizen of the United States of
America. In the second place, Solomon Joseph Alcala is neither his
relative by consanguinity nor the legitimate child of his spouse. In the
third place, when private respondents spouses Clouse jointly filed the
petition to adopt Solomon Joseph Alcala on February 21, 1990, private
respondent Evelyn A. Clouse was no longer a Filipino citizen. She lost
her Filipino citizenship when she was naturalized as a citizen of the
United States in 1988.
Private respondent Evelyn A. Clouse, on the other hand, may appear to
qualify pursuant to paragraph 3(a) of Article 184 of E.O. 209. She was a
former Filipino citizen. She sought to adopt her younger brother.
Unfortunately, the petition for adoption cannot be granted in her favor
alone without violating Article 185 which mandates a joint adoption by
the husband and wife.

94
 Article 185. Husband and wife must jointly adopt, except in the
following cases:
(1) When one spouse seeks to adopt his own illegitimate child; or (BUT
WITH CONSENT OF THE SPOUSE)
(2) When one spouse seeks to adopt the legitimate child of the other.
Since Evelyn does not fall on any of the exceptions, the GR applies.

Republic v. CA, G.R. No. 103695, March 15, 1996 (re: jurisdictional
requirements in petition for adoption)
THE PRAYER IS ALSO TO EFFECT THAT THE CHILD IS THE CHILD OF THE
ADOPTER; THE NAME BE CHANGED.
WON the RTC acquired jurisdiction over the private respondents'
petition for adoption when the notice by publication did not state the
true name of the minor child.
In Cruz v. Republic, there the petition for adoption and the notice
published in the newspaper gave the baptismal name of the child
("Rosanna E. Cruz") instead of her name in the record of birth
("Rosanna E. Bucoy"). It was held that this was a "substantial
defect in the petition and the published order of hearing." Indeed
there was a question of identity involved in that case. Rosanna E.
Cruz could very well be a different person from Rosanna E.
Bucoy, as common experience would indicate.
The present case is different. It involves an obvious clerical error
in the name of the child sought to be adopted. In this case the
correction involves merely the substitution of the letters "ch" for
the letter "d," so that what appears as "Midael" as given name
would read "Michael." Even the Solicitor General admits that
the error is a plainly clerical one. Changing the name of
the child from "Midael C. Mazon" to "Michael C. Mazon"
cannot possibly cause any confusion, because both
names "can be read and pronounced with the same
rhyme (tugma) and tone (tono, tunog, himig)." The
purpose of the publication requirement is to give notice so that
those who have any objection to the adoption can make their
objection known. That purpose has been served by publication of
notice in this case.
For this reason we hold that the RTC correctly granted the
petition for adoption of the minor Midael C. Mazon and the Court
of Appeals, in affirming the decision of the trial court, correctly
did so.
WON the correction of names can be effected in the same proceeding
for adoption.
Both the Court of Appeals and the trial court erred in granting
private respondents' prayer for the correction of the name of the
child in the civil registry.
Contrary to what the trial court thought, Rule 108 of the Rules of
Court applies to this case and because its provision was not
complied with, the decision of the trial court, insofar as it ordered
the correction of the name of the minor, is void and without force
or effect.
The trial court was clearly in error in holding Rule 108 to be
applicable only to the correction of errors concerning the civil status
95
 of persons. This case falls under letter "(o)," referring to
"changes of name." Rule 108 thus applies to the present
proceeding.
Failure to implead the civil registrar as an indispensable party and to
give notice by publication of the petition for correction of entries
renders the proceeding of the trial court null and void.
The local civil registrar is thus required to be made a party to the
proceeding. He is an indispensable party, without whom no final
determination of the case can be had. As he was not impleaded in
this case much less given notice of the proceeding, the decision of
the trial court, insofar as it granted the prayer for the correction of
entry, is void. The absence of an indispensable party in a case
renders ineffectual all the proceedings subsequent to the filing of the
complaint including the judgment. (Republic v. Court of Appeals,
|||

G.R. No. 103695, March 15, 1996)

While there was notice given by publication in this case, it was notice
of the petition for adoption made in compliance with Rule 99, 4. In
that notice only the prayer for adoption of the minor was stated.
Nothing was mentioned that in addition the correction of his name in
the civil registry was also being sought. The local civil registrar was
thus deprived of notice and, consequently, of the opportunity to be
heard.
WHEREFORE, in view of the foregoing, the decision of the Court
of Appeals is MODIFIED by deleting from the decision of the
Regional Trial Court the order to the local civil registrar to change
the name "MIDAEL" to "MICHAEL" in the birth certificate of the
child. In other respects relating to the adoption of Midael C.
Mazon, the decision appealed from is AFFIRMED

Republic v. CA, G.R. No. 92326, January 24, 1992 (re: jurisdictional
requirements in petition for adoption)
WHEN WAS THE PETITION FILED?
WON THE FAMILY CODE SHALL BE APPLIED RETROACTIVELY TO
THE CASE AT BAR.
Article 246 of the Family Code provides for retroactive effect of
appropriate relevant provisions thereof, subject to the qualification
that such retrospective application will not prejudice or impair vested
or acquired rights in accordance with the Civil Code or other laws. ||

Vested rights include not only legal or equitable title to the

enforcement of a demand, but also an exemption from new
obligations created after the right has vested. (Republic v. Court of
|||

Appeals, G.R. No. 92326, January 24, 1992)

96
 A petition cannot be dismissed by reason of failure to comply
with a law which was not yet in force and effect at the time. As
long as the petition for adoption was sufficient in form and
substance in accordance with the law in governance at the time
it was filed, the court acquires jurisdiction and retains it until it
fully disposes of the case.
To repeat, the jurisdiction of the court is determined by the
statute in force at the time of the commencement of the action.
Such jurisdiction of a court, whether in criminal or civil cases,
once it attaches cannot be ousted by subsequent happenings or
events, although of a character which would have prevented
jurisdiction from attaching in the first instance. IN THE CASE AT
BAR, when private respondent filed her petition in Special
Proceeding No. 1386, the trial court acquired jurisdiction
thereover in accordance with the governing law. Under the Child
and Youth Welfare Code, private respondent had the right to file
a petition for adoption by herself, without joining her husband
therein. When Mrs. Bobiles filed her petition, she was exercising
her explicit and unconditional right under said law. Upon her
filing thereof, her right to file such petition alone and to have the
same proceed to final adjudication, in accordance with the law in
force at the time, was already vested and cannot be prejudiced
or impaired by the enactment of a new law.
WON THE GRANT OF ADOPTION SHOULD Y BE IN FAVOR OF THE WIFE
ONLY, HER HUSBAND NOT BEING A PETITIONER.
NO. Accordingly, it is generally held that a petition will confer
jurisdiction if it substantially complies with the adoption statute,
alleging all facts necessary to give the court jurisdiction.
Written consent and confirmatory statement is sufficient
to make husband a co-petitioner. Although Dioscoro Bobiles
was not named as one of the petitioners in the petition for
adoption filed by his wife, his affidavit of consent, attached to the
petition as Annex "B" and expressly made an integral part
thereof, shows that he himself actually joined his wife in adopting
the child. The foregoing declarations, and his subsequent
confirmatory testimony in open court, are sufficient to make him
a co-petitioner.
In the case at bar, the rights concomitant to and conferred by the
decree of adoption will be for the best interests of the child. His
adoption is with the consent of his natural parents. 25 The
representative of the Department of Social Welfare and
Development unqualifiedly recommended the approval of the
petition for adoption 26 and the trial court dispensed with the
trial custody for several commendatory reasons, especially since
the child had been living with the adopting parents since infancy.
27 Further, the said petition was with the sworn written consent
of the children of the adopters.

Tamargo v. CA, G.R. No. 85044, June 3, 1992 (re: parental authority during
trial period)
In the instant case, the shooting of Jennifer by Adelberto with an air rifle
occurred when parental authority was still lodged in respondent Bundoc

97
 spouses, the natural parents of the minor Adelberto. It would thus follow
that the natural parents who had then actual custody of the minor
Adelberto, are the indispensable parties to the suit for damages. (Tamargo
|||

v. Court of Appeals, G.R. No. 85044, June 03, 1992)

We do not believe that parental authority is properly regarded as having
been retroactively transferred to and vested in the adopting parents, the
Rapisura spouses, at the time the air rifle shooting happened. We do not
consider that retroactive effect may be given to the decree of
adoption so as to impose a liability upon the adopting parents
accruing at a time when the adopting parents had no actual or
physical custody over the adopted child. Retroactive effect may
perhaps be given to the granting of the petition for adoption where
such is essential to permit the accrual of some benefit or advantage
in favor of the adopted child.
In the instant case, however, to hold that parental authority had been
retroactively lodged in the Rapisura spouses so as to burden them with
liability for a tortious act that they could not have foreseen and which they
could not have prevented (since they were at the time in the United States
and had no physical custody over the child Adelberto) would be unfair and
unconscionable. Such a result, moreover, would be inconsistent with the
philosophical and policy basis underlying the doctrine of vicarious liability.
Put a little differently, no presumption of parental dereliction on the part of
the adopting parents, the Rapisura spouses, could have arisen since
Adelberto was not in fact subject to their control at the time the tort was
committed. (Tamargo v. Court of Appeals, G.R. No. 85044, June 03, 1992)
|||

Under Article 35 of the Child and Youth Welfare Code, parental authority is
provisionally vested in the adopting parents during the period of trial
custody, i.e., before the issuance of a decree of adoption, precisely
because the adopting parents are given actual custody of the child during
such trial period. In the instant case, the trial custody period either had not
yet begun or had already been completed at the time of the air rifle
shooting; in any case, actual custody of Adelberto was then with his natural
parents, not the adopting parents. Accordingly, we conclude that
respondent Bundoc spouses, Adelberto's natural parents, were
indispensable parties to the suit for damages brought by petitioners, and
that the dismissal by the trial court of petitioners' complaint, the
indispensable parties being already before the court, constituted grave
abuse of discretion amounting to lack or excess of jurisdiction. (Tamargo v.
|||

Court of Appeals, G.R. No. 85044, June 03, 1992)

98
Republic v. Valencia, G.R. No. L-32181, March 5, 1986 (re: adoption strictly
personal between adopter and adoptee
It is undoubtedly true that 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 (Republic v. Valencia, G.R. No. L-32181,
|||

March 05, 1986)

his Court adheres 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. (Republic v. Valencia, G.R. No. L-32181, March 05,
|||

1986)
Thus, the persons who must be made parties to a proceeding concerning
the cancellation or correction of an entry in the civil register are (1) the
civil registrar, and (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. The following are likewise entitled to oppose the
petition: (1) the civil registrar, and (2) any person having or claiming any
interest under the entry whose cancellation or correction is
sought. (Republic v. Valencia, G.R. No. L-32181, March 05, 1986)
|||

If all these procedural requirements have been followed, a petition for

correction and/or cancellation of entries in the record of birth even if filed
and conducted under Rule 108 of the Revised Rules of Court can no
longer be described as "summary". There can be no doubt that when an
opposition to the petition is filed either by the Civil Registrar or any person
having or claiming any interest in the entries sought to be cancelled and/or
corrected and the opposition is actively prosecuted, the proceedings
thereon become adversary proceedings. (Republic v. Valencia, G.R. No. L-
|||

32181, March 05, 1986)

IN THE CASE AT BAR: In the instant case, a petition for cancellation
and/or correction of entries of birth of Bernardo Go and Jessica Go in the
Civil Registry of the City of Cebu was filed by respondent Leonor Valencia
on January 27, 1970, and pursuant to the order of the trial court dated
February 4, 1970, the said petition was published once a week for three (3)
consecutive weeks in the Cebu Advocate, a newspaper of general
circulation in the City of Cebu. Notice thereof was duly served on the
Solicitor General, the Local Civil Registrar and Go Eng. The order likewise
set the case for hearing and directed the local civil registrar and the other

99
 respondents or any person claiming any interest under the entries whose
corrections were sought, to file their opposition to the said petition. An
opposition to the petition was consequently filed by the Republic on
February 26, 1970. Thereafter a full blown trial followed with respondent
Leonor Valencia testifying and presenting her documentary evidence in
support of her petition. The Republic on the other hand cross-examined
respondent Leonor Valencia (Republic v. Valencia, G.R. No. L-32181,
|||

March 05, 1986)

To follow the petitioner's argument that Rule 108 is not an appropriate
proceeding without in any way intimating what is the correct proceeding or
if such a proceeding exists at all, would result in manifest injustice.

Dela Puerta v. CA, G.R. No. 77867 February 6, 1990

CAN INTERFERE IN THE PROCEEDINGS- OPPOSE, ENTER IN APPEARANCE AS A
PARTY SINCE HE IS THE SOLE HEIR OF HIS FATHER.

Republic v. CA, G.R. No. L-97906, May 21, 1992 ( re: name of the adopted
child; adopted child may revert to original surname through Petition for
Change of Name under Rule 103)
A name is said to have the following characteristics: (1) It is absolute,
intended to protect the individual from being confused with others. (2)
It is obligatory in certain respects, for nobody can be without a name.
(3) It is fixed, unchangeable, or immutable, at least at the start, and
may be changed only for good cause and by judicial proceedings. (4) It
is outside the commerce of man, and, therefore, inalienable and
intransmissible by act inter vivos or mortis causa. (5) It is
imprescriptible.
Under Article 376 by the Civil Code, "(n)o person can change his name
or surname without judicial authority." The application for change of
name thereunder involves a special proceeding governed by and
conducted under the strictures of Rule 103 of the Rules of Court and
one which involves substantial changes, with the declared objective of
such judicial proceedings being the prevention of fraud. The purpose of
the statutory procedure authorizing a change of personal name is
simply to have, wherever possible, a record of the change, and in
keeping with the object of the statute, court to which application is
made should normally make its decree recording such change of name.
To digress a little for purposes of clarification, the change of name
contemplated under Article 376 and reglementarily implemented by
Rule 103 must not be confused with and cannot be effected through
the summary proceeding proposed in Article 412 of the some Code, as
procedurally regulated by Rule 108 of the Rules, which refers only to
correction of clerical errors, such as those which are visible to the eye
or obvious to the understanding, or an error made by a clerk or
transcriber, or a mistake in copying or writing, or some harmless or
innocuous change, 17 and not those which will involve substantial
changes
It bears stressing at this point that to justify a request for
change of name, petitioner must show not only some proper or

100
 compelling reason therefor but also that he will be prejudiced
by the use of his true and official name.
Among the grounds for change of name which have been held valid
are: (a) When the name is ridiculous, dishonorable or extremely
difficult to write or pronounce; (b) When the change results as a legal
consequence, as in legitimation; (c) When the change will avoid
confusion; 25 (d) Having continuously used and been known since
childhood by a Filipino name, unaware of her alien parentage; 26 (e) A
sincere desire to adopt a Filipino name to erase signs of former
alienage, all in good faith and without prejudicing anybody; 27 and (f)
When the surname causes embarrassment and there is no showing
that the desired change of name was for a fraudulent purpose or that
the change of name would prejudice public interest
While it is true that the statutory fiat under Article 365 of the Civil Code is to the effect that an
adopted child shall bear the surname of the adopter, it must nevertheless be borne in mind that
the change of the surname of the adopted child is more an incident rather than the object of
adoption proceedings. 30 The act of adoption fixes a status, viz., that of parent and child. More
technically, it is an act by which relations of paternity and affiliation are recognized as legally
existing between persons not so related by nature. It has been defined as the taking into one's
family of the child of another as son or daughter and heir and conferring on it a title to the rights
and privileges of such. The purpose of an adoption proceeding is to effect this new status of
relationship between the child and its adoptive parents, the change of name which frequently
accompanies adoption being more an incident than the object of the proceeding. 31 The welfare of
the child is the primary consideration in the determination of an application for adoption. On this
point, there is unanimous agreement.
ADOPTION WILL STILL BE VALID NOTWITHSTANDING THE ABSENCE OF THE CHANGE OF
SURNAME. The act of adoption fixes a status, viz., that of parent and child. NOR THE ACT OF
REVERTING BACK TO THE ORIGINAL SURNAME CAUSES CONFUSION. It bears
stressing at this point that to justify a request for change of
name, petitioner must show not only some proper or
compelling reason therefor but also that he will be prejudiced
by the use of his true and official name and THE ADOPTER
GRANTED.
Petition for change of name is a remedy allowed under our law only by way of exception to the
mandatory provisions of the Civil Code on the use of surnames. The law fixes the surname that
may be used by a person, at least inceptively, and it may be changed only upon judicial
permission granted in the exercise of sound discretion. Section 1 of Rule 103, in specifying the
parties who may avail of said remedy, uses the generic term "persons" to signify all natural
persons regardless of status. If a legitimate person may, under certain judicially accepted
exceptional circumstances, petition the court for a change of name, we do not see any legal basis
or logic in discriminating against the availment of such a remedy by an adopted child. In other
words, Article 365 is not an exception, much less can it bar resort, to Rule 103.

HABEAS CORPUS
Feria v. CA, G.R. No. 122954, February 15, 2000 (purpose of writ; HC not
substitute for lost appeal)
The mere loss or destruction of the records of a criminal case
subsequent to conviction of the accused will not render the judgment
of conviction void, nor will it warrant the release of the convict by
virtue of a writ of habeas corpus. The proper remedy is the
reconstitution of judicial records which is as much a duty of the
prosecution as of the defense. |||

101
 SPECIAL PROCEEDINGS; HABEAS CORPUS; PURPOSE THEREOF;
WHEN NOT AVAILABLE. The high prerogative writ of habeas corpus,
whose origin is traced to antiquity, 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. It secures to a prisoner
the right to have the cause of his detention examined and determined by a
court of justice, and to have the issue ascertained as to whether he is held
under lawful authority. Consequently, the writ may also be availed of
where, as a consequence of a judicial proceeding, (a) there has been
a deprivation of a constitutional right resulting in the restraint of a
person, (b) the court had no jurisdiction to impose the sentence, or
(c) an excessive penalty has been imposed, as such sentence is void
as to such excess. . . .(POST CONVICTION REMEDY) In the present
case, there is also no showing that petitioner duly appealed his conviction
of the crime of Robbery with Homicide, hence for all intents and purposes,
such judgment has already become final and executory. When a court has
jurisdiction of the offense charged and of the party who is so charged, its
judgment, order, or decree is not subject to collateral attack by habeas
corpus. Put another way, in order that a judgment may be subject to
collateral attack by habeas corpus, it must be void for lack of
jurisdiction | (Feria y Pacquing v. Court of Appeals, G.R. No. 122954,
.||

February 15, 2000)

Petitioner's declarations as to a relevant fact may be given in evidence
against him under Section 23 of Rule 130 of the Rules of Court. This rule is
based upon the presumption that no man would declare anything against
himself, unless such declaration were true, particularly with respect to such
grave matter as his conviction for the crime of Robbery with Homicide.
Further, under Section 4 of Rule 129, "[a]n admission, verbal or written,
made by a party in the course of the proceedings in the same case, does
not require proof. The admission may be contradicted only by a showing
that it was made through palpable mistake or that no such admission was
made." Petitioner does not claim any mistake nor does he deny making
such admissions. In this case, petitioner made judicial admissions,
both verbal and written, that he was charged with and convicted of
the crime of Robbery with Homicide, and sentenced to suffer
imprisonment "habang buhay". |||

Newspaper articles amount to "hearsay evidence, twice removed" and are

therefore not only inadmissible but without any probative value at all
whether objected to or not, unless offered for a purpose other than proving
the truth of the matter asserted. In this case, the news article is admissible
only as evidence that such publication does exist with the tenor of the news

102
 therein stated. (Feria y Pacquing v. Court of Appeals, G.R. No. 122954,
|||

February 15, 2000)

As a general rule, the burden of proving illegal restraint by the respondent
rests on the petitioner who attacks such restraint. In other words, where the
return is not subject to exception, that is, where it sets forth process which
on its face shows good ground for the detention of the prisoner, it is
incumbent on petitioner to allege and prove new matter that tends to
invalidate the apparent effect of such process. If the detention of the
prisoner is by reason of lawful public authority, the return is
consideredprima facie evidence of the validity of the restraint and the
petitioner has the burden of proof to show that the restraint is illegal. (Feria
|||

y Pacquing v. Court of Appeals, G.R. No. 122954, February 15, 2000)

The proper remedy in this case is for either petitioner or public respondents
to initiate the reconstitution of the judgment of the case under either Act
No. 3110, the general law governing reconstitution of judicial records, or
under the inherent power of courts to reconstitute at any time the records
of their finished cases in accordance with Section 5 (h) of Rule 135 of the
Rules of Court. Judicial records are subject to reconstitution without
exception, whether they refer to pending cases or finished cases. There is
no sense in limiting reconstitution to pending cases; finished cases are just
as important as pending ones, as evidence of rights and obligations finally
adjudicated. The records were lost after petitioner, by his own admission,
was already convicted by the trial court of the offense charged. Further, the
same incident which gave rise to the filing of the Information for Robbery
with Homicide also gave rise to another case for Illegal Possession of
Firearms, the records of which could be of assistance in the reconstitution
of the present case. (Feria y Pacquing v. Court of Appeals, G.R. No.
|||

122954, February 15, 2000)

Ilusorio v. Bildner, G.R. No. 139789, May 12, 2000 (purpose of writ; wife may
not compel husband to live with her thru HC)
"Habeas corpus is a writ directed to the person detaining another, commanding
him to produce the body of the prisoner at a designated time and place, with the
day and cause of his capture and detention, to do, submit to, and receive
whatsoever the court or judge awarding the writ shall consider in that behalf
May a wife secure a writ of habeas corpus to compel her husband to
live with her in conjugal bliss? The answer is no. Marital rights including
coverture and living in conjugal dwelling may not be enforced by the
extra-ordinary writ of habeas corpus.
The evidence shows that there was no actual and effective detention
or deprivation of lawyer Potenciano Ilusorios liberty that would justify
the issuance of the writ. The fact that lawyer Potenciano Ilusorio is
about 86 years of age, or under medication does not necessarily
render him mentally incapacitated. Soundness of mind does not hinge

103
 on age or medical condition but on the capacity of the individual to
discern his actions.
With his full mental capacity coupled with the right of choice,
Potenciano Ilusorio may not be the subject of visitation rights against
his free choice. Otherwise, we will deprive him of his right to privacy.
Needless to say, this will run against his fundamental constitutional
right.
The Court of Appeals exceeded its authority when it awarded visitation
rights in a petition for habeas corpus where Erlinda never even prayed
for such right. The ruling is not consistent with the finding of subjects
sanity. When the court ordered the grant of visitation rights, it also
emphasized that the same shall be enforced under penalty of
contempt in case of violation or refusal to comply. Such assertion of
raw, naked power is unnecessary.
No court is empowered as a judicial authority to compel a husband to
live with his wife. Coverture cannot be enforced by compulsion of a writ
of habeas corpus carried out by sheriffs or by any other mesne
process. That is a matter beyond judicial authority and is best left to
the man and womans free choice.
The law provides that the husband and the wife are obliged to live together,
observe mutual love, respect and fidelity. The sanction therefor is the
"spontaneous, mutual affection between husband and wife and not any
legal mandate or court order" to enforce consortium. (In re of the Petition
|||

for Habeas Corpus of Ilusorio v. Ilusorio-Bildner, G.R. No. 139789, 139808

(Resolution), July 19, 2001)
The fact of illegal restraint has not been proved during the hearing at the
Court of Appeals on March 23, 1999. 16 Potenciano himself declared that
he was not prevented by his children from seeing anybody and that he had
no objection to seeing his wife and other children whom he loved. (In re of
|||

the Petition for Habeas Corpus of Ilusorio v. Ilusorio-Bildner, G.R. No.

139789, 139808 (Resolution), July 19, 2001)
We were not convinced that Potenciano Ilusorio was mentally incapacitated
to choose whether to see his wife or not. Again, this is a question of fact
that has been decided in the Court of Appeals.
As to whether the children were in fact taking control of the corporation,
these are matters that may be threshed out in a separate proceeding,
irrelevant in habeas corpus.

De Villa v. Director of New Bilibid Prisons, G.R. No. 158802, November 17,
2004 (HC as post-conviction remedy
The extraordinary writ of habeas corpus has long been a haven of relief for
those seeking liberty from any unwarranted denial of freedom of
movement. Very broadly, the writ applies "to all cases of illegal confinement
or detention by which a person has been deprived of his liberty, or by which
the rightful custody of any person has been withheld from the person

104
 entitled thereto". 22Issuance of the writ necessitates that a person be
illegally deprived of his liberty.
|||

The most basic criterion for the issuance of the writ, therefore, is that the
individual seeking such relief be illegally deprived of his freedom of
movement or placed under some form of illegal restraint. If an individual's
liberty is restrained via some legal process, the writ of habeas corpus is
unavailing.|||

The writ of habeas corpus cannot be used to directly assail a judgment

rendered by a competent court or tribunal which, having duly acquired
jurisdiction, was not deprived or ousted of this jurisdiction through some
anomaly in the conduct of the proceedings.
Thus, notwithstanding its historic function as the great writ of liberty,
the writ of habeas corpus has very limited availability as a post-
conviction remedy. |||

In the recent case of Feria v. Court of Appeals, 25 we ruled that review of a

judgment of conviction is allowed in a petition for the issuance of the writ
of habeas corpus only in very specific instances, such as when, as a
consequence of a judicial proceeding, (a) there has been a deprivation of a
constitutional right resulting in the restraint of a person; (b) the court had
no jurisdiction to impose the sentence; or (c) an excessive penalty has
been imposed, as such sentence is void as to such excess.
The review of findings of fact long passed upon with finality is far outside
the scope of habeas corpus proceedings- a record must be allowed to
remain extant, and cannot be revised, modified, altered or amended by the
simple expedient of resort to habeas corpus proceedings.
Mere errors of fact or law, which did not have the effect of depriving the trial
court of its jurisdiction over the case and the person of the defendant, are
not correctible in a petition for the issuance of the writ of habeas corpus; if
at all, these errors must be corrected oncertiorari or on appeal, in the form
and manner prescribed by law. (De Villa v. The Director, New Bilibid
|||

Prisons, G.R. No. 158802, November 17, 2004)

Upon a perusal of the records not merely of this case but of People v. de
Villa, we find that the remedy of the writ of habeas corpusis unavailing. |||

First, the denial of a constitutional right has not been alleged by petitioner.
As such, this Court is hard-pressed to find legal basis on which to anchor
the grant of a writ of habeas corpus. Much as this Court sympathizes with
petitioner's plea, a careful scrutiny of the records does not reveal any
constitutional right of which the petitioner was unduly deprived. |||

In this instance, we note that the record is replete with errors committed by
counsel, and it can be alleged that the petitioner was, at trial, denied the
effective aid of counsel. |||

105
 A motion for new trial based on newly-discovered evidence may be granted
only if the following requisites are met: (a) that the evidence was
discovered after trial; (b) that said evidence could not have been
discovered and produced at the trial even with the exercise of reasonable
diligence; (c) that it is material, not merely cumulative, corroborative or
impeaching; and (d) that the evidence is of such weight that, if admitted, it
would probably change the judgment. 52 It is essential that the offering
party exercised reasonable diligence in seeking to locate the evidence
before or during trial but nonetheless failed to secure it. (De Villa v. The
|||

Director, New Bilibid Prisons, G.R. No. 158802, November 17, 2004)
In this instance, although the DNA evidence was undoubtedly discovered
after the trial, we nonetheless find that it does not meet the criteria for
"newly-discovered evidence" that would merit a new trial. Such evidence
disproving paternity could have been discovered and produced at trial with
the exercise of reasonable diligence. (De Villa v. The Director, New Bilibid
|||

Prisons, G.R. No. 158802, November 17, 2004)

The DNA evidence presented by petitioner-relator is not material and
relevant to the crime of rape. Even assuming petitioner is not the father of
the child that was conceived within the period of the rape, such fact does
not prove that petitioner could not have committed the crime. The remedies
of habeas corpus and new trial are thus unavailing in this case. (De Villa v.
|||

The Director, New Bilibid Prisons, G.R. No. 158802, November 17, 2004)

CONCURRING:
Even in the absence of a law allowing post-conviction DNA testing, the Court
under its constitutional mandate may order a new trial if the post-conviction DNA
testing will establish that the convicted felon could not have possibly committed
the crime. This is the case when the post-conviction DNA testing shows that the
semen in the victim's vagina does not match that of the convicted felon. (De Villa
|||

v. The Director, New Bilibid Prisons, G.R. No. 158802, November 17, 2004)

De Guzman v. Vinarao, G.R. No. L-117376 December 8, 1994 (HC when

imposable penalty for an offense is reduced by law)
The writ of habeas corpus extends to all cases of illegal confinement or
detention by which any person is deprived of his liberty upon a verified
petition setting forth:
1. that the person in whose behalf the application is made is
imprisoned or restrained of his liberty;.
2. the officer or name of the person by whom he is so imprisoned
or restrained;
3. the place where he is imprisoned or restrained of his liberty; and
4. a copy of the commitment or cause of detention of such person
(Section 3, Rule 102, Revised Rules of Court)

106
 Petitioners allege that since de Guzman has been serving sentence
since July 1984 or for more than ten (10) years now, his continued
detention in the National Penitentiary is a violation of his basic human
rights and that, therefore, he should be released from prison without
further delay
Clearly, de Guzman is entitled to benefit from the reduction of penalty
introduced by the new law.

Tijing v. CA, G.R. No. 125901, March 8, 2001 (HC in relation to custody of
minor children)
The writ of habeas corpus is a proper legal remedy to enable parents to
regain the custody of a minor child even if the latter be in the custody
of a third person of his own free will.
It may even be said that in custody cases involving minors, the question of
illegal and involuntary restraint of liberty is not the underlying rationale for
the availability of the writ as a remedy. Rather, it is prosecuted for the
purpose of determining the right of custody over a child. 13 It must be
stressed too that in habeas corpus proceedings, the question of identity is
relevant and material, subject to the usual presumptions including those as
to identity of the person.
Petitioners must convincingly establish that the minor in whose behalf the
application for the writ is made is the person upon whom they have rightful
custody, and if there is doubt on the identity of the minor in whose behalf
the application for the writ is made, petitioners cannot invoke with certainty
their right of custody over the said minor.
Based on the facts of the case (evidence that Angelita could no longer
bear a child; her husband is no longer capable of siring a child due to an
accident; the fact the that the birth certificate was filed by the husband and
not by the midwife; strong similarities of the child and of the petitioner;
testimony of the midwife as to the birth of the child), we are constrained to
rule that subject minor is indeed the son of petitioners. The writ of habeas
corpus is proper to regain custody of said child. (Spouses Tijing v. Court of
|||

Appeals, G.R. No. 125901, March 08, 2001)

Resemblance between a minor and his alleged parent is competent and
material evidence to establish parentage. |||

Calvan v. CA, G.R. No. 140823, October 3, 2000 (writs of HC and certiorari as
ancillary remedies)
Indeed, a writ of habeas corpus could be so employed as a remedy
ancillary to a proceeding in certiorari for purposes of review. (Calvan v.
|||

Court of Appeals, G.R. No. 140823 (Resolution), October 03, 2000)

In habeas corpus, the concern is not merely whether an error has been
committed in ordering the petitioner in custody but also on whether the
proceeding or judgment under which the person has been restrained is a

107
 complete nullity. Evidently, the objectivity required of the judge could not be
assured in this case since the preliminary investigation was wrongfully
conducted and he is related to the complainant within the third civil
degree. Habeas corpus, which furnishes an extraordinary remedy, may
thus be invoked in this case, due to the attendance of special
circumstances which require immediate attention. |||

SPECIAL PROCEEDINGS; HABEAS CORPUS; SCOPE OF INQUIRY.

The inquiry on a writ of habeas corpus is addressed, not to errors
committed by a court within its jurisdiction, but to the question of whether
the proceeding or judgment under which the person has been restrained is
a complete nullity. The probe may thus proceed to check on the power and
authority, itself an equivalent test of jurisdiction, of the court or the judge to
render the order that so serves as the basis of imprisonment or detention.
Keeping in mind the limitation that in habeas corpus the concern is
not merely whether an error has been committed in ordering or
holding the petitioner in custody, but whether such error is sufficient
to render void the judgment, order, or process, an inquiry into the
validity of the proceedings or process can be crucial in safeguarding
the constitutional right of a potential accused against an obvious and
clear misjudgment. (Calvan v. Court of Appeals, G.R. No. 140823
|||

(Resolution), October 03, 2000)

AN EXTRAORDINARY REMEDY FOR WRONGFUL PROSECUTION AND
UNWARRANTED DETENTION; CASE AT BAR. Habeas corpus, is a
high prerogative writ, which furnishes an extraordinary remedy and may
not thus be invoked under normal circumstances but, as the Court of
Appeals has so aptly explained, the illegal order and warrant of arrest
issued by petitioner Judge subsists and private respondent is offered no
speedy, adequate remedy or appeal in the ordinary course of law. The writ
ofhabeas corpus, although not designed to interrupt the orderly
administration of justice, can be invoked, in fine, by the attendance of a
special circumstance that requires immediate action. Such a special
circumstance is here present considering that respondent cannot resort to
the remedy of a motion to quash, the case no longer being with petitioner
judge, and neither could he ask for a reinvestigation because the
preliminary investigation for purposes of filing the information has already
been taken over by the Provincial Prosecutor. The latter, upon the other
hand, does not have the authority to lift the warrant of arrest issued by the
disqualified judge. Meantime, respondent is being held and detained under
an illegal order and warrant of arrest which has no legal standing. (Calvan
|||

v. Court of Appeals, G.R. No. 140823 (Resolution), October 03, 2000)

CONSTRUCTIVE CUSTODY

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Martin v. Guerrero, A.M. No. RTJ-99-1499, October 22, 1999 (application for
HC to be acted by MTC judge in absence of RTC judge)
Regional trial courts have jurisdiction to issue writs of habeas corpus
only when such writs can be enforced within their respective judicial
districts, as extraordinary writs issued by them are limited to and
operative only within such areas.[6] Clearly then, respondent judge
had no authority to issue a writ of habeas corpus against herein
complainant, who was a resident of Paraaque, an area outside his
judicial jurisdiction.

Thornton v. Thornton, G.R. No. 154598, August 16, 2004 (temporary custody
of minor awarded in HC proceedings)
There is nothing in RA 8369 that revoked CAs jurisdiction to issue writs of
habeas corpus involving the custody of minors.
The word "exclusive" in the Family Courts Act of 1997 may not connote
automatic foreclosure of the jurisdiction of other courts over habeas corpus
cases involving minors
Individuals who do not know the whereabouts of minors they are looking
for would be helpless since they cannot seek redress from the family courts
whose writs are enforceable only in their respective territorial jurisdiction.
The primordial consideration is the welfare and best interests of the child.
RA 8369 did not divest the Court of Appeals and the Supreme Court
of their jurisdiction over habeas corpus cases involving the custody
of minors. |||

The jurisdiction of the Court of Appeals and Family Court in the case at bar
is concurrent. The Family Court can issue writs of habeas corpus
enforceable only within its territorial jurisdiction. On the other hand, in
cases where the territorial jurisdiction for the enforcement of the writ cannot
be determined with certainty, the Court of Appeals can issue the same writ
enforceable throughout the Philippines.
Family courts have concurrent jurisdiction with the CA and the SC in
petitions for habeas corpus where the custody of the minors is at issue.

Velasco v. CA, G.R. No. 118644 July 7, 1995 (petition for HC filed by common-
law spouse; supervening events may bar release of detained person;
meaning of process that justifies denial of HC)
The private respondent (common law wife of the detainee) has the
personality to institute on behalf of her common-law spouse, Lawrence
Larkins, the habeas corpus aspect of the petition, as she falls within
the purview of the term "some person" under Section 3, Rule 102 of
the Rules of Court, which means any person who has a legally justified
interest in the freedom of the person whose liberty is restrained or who
shows some authorization to make the application. 20 She is not,

109
 however, the real party in interest in the certiorari aspect of the
petition. Only Larkins could institute a petition for certiorari to set aside
the order denying his motions for bail and for the dismissal of the
complaint against him.
It does not, however, follow that if certiorari is available to Larkins, an
application for a writ of habeas corpus will absolutely be barred. While
ordinarily, the writ of habeas corpus will not be granted when there is
an adequate remedy by writ of error or appeal or by writ of certiorari, it
may, nevertheless, be available in exceptional cases, for the writ
should not be considered subservient to procedural limitations which
glorify form over substance. 21 It must be kept in mind that although
the question most often considered in both habeas corpus and
certiorari proceedings is whether an inferior court has exceeded its
jurisdiction, the former involves a collateral attack on the judgment
and "reaches the body but not the record," while the latter assails
directly the judgment and "reaches the record but not the body."
The filing of the application for a writ of habeas corpus, for
even if the detention is at its inception illegal, it may, by
reason of some supervening events be no longer illegal at the
time of the filing of the application.---
The writ of habeas corpus should not be allowed after the
party sought to be released had been charged before any
court
Invariably a judicial process is defined as a writ, warrant, subpoena, or
other formal writing issued by authority of law; also, the means of
accomplishing an end, including judicial proceedings, or all writs,
warrants, summonses and orders of courts of justice or judicial officers.
It is likewise held to include a writ, summons or order issued in a
judicial proceeding to acquire jurisdiction of a person or his property, to
expedite the cause or enforce the judgment, or a writ, warrant,
mandate or other process issuing from a court of justice.
AFTER THE FILING, WARRANT OF ARREST BUT IF ALREADY DETAINED-
COMMITMENT ORDER.
While it may be true that on 6 December 1994, or four days after the filing of the Urgent Motion
for Bail, Larkins, thru a new counsel, filed an Urgent Omnibus Motion for Dismissal of the
Complaint and for Immediate Release based on the alleged illegality of his warrantless arrest, the
said motion was a mere afterthought which came too late in the day. By then, the trial court had
firmly acquired jurisdiction over his person.

Moreover, the trial court's order of 5 January 1995 denying the urgent motion for bail was an
unequivocal assertion of its authority to keep in custody the person of Larkins. This order comes
under the purview of the word order under the first sentence of Section 4 of Rule 102 reading: "If
it appears that the person alleged to be restrained of his liberty is in the custody of an officer . . .
by virtue of [an] order of a court of record, and that the court or judge had jurisdiction to . . . make
the order, the writ shall not be allowed.

Jackson v. Macalino, G.R. No. 139255, November 23, 2003 (HC as remedy for
reviewing proceedings for deportation of aliens)-BALANAG
In dismissing the petition, the Court ruled that Section 13 of Rule 102
of the Rules of Court, as amended; provides that if it appears that the
detained person 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. In this case, based on the return of the writ by
the respondents, the petitioner was arrested and detained at the CID
detention center at Bicutan, Paranaque City, under Mission Order No.

110
 RBR-99-164 dated May 21, 1999 based on the Order of the BOC dated
December 11, 1997 which had become final and executory. Thus, the
petitioner's arrest and detention are in accord with Section 45(d) in
relation to Section 37 (a)(9) of the Philippine Immigration Act of 1940.
Moreover, the petitioner, in his motion for reconsideration filed with the
CID, offered to post a bail bond for his provisional release to enable
him to secure the necessary documents to establish the appropriate
grounds for his permanent stay in the Philippines. By offering to post a
bail bond, the petitioner thereby admitted that he was under the
custody of the CID and voluntarily accepted the jurisdiction of the CID.
SUPERVENING EVENTS: Even if the arrest of a person is illegal,
supervening events may bar his release or discharge from custody. What is
to be inquired into is the legality of his detention as of, at the earliest, the
filing of the application for a writ of habeas corpus, for even if the
detention is at its inception illegal, it may, by reason of same supervening
events such as the instances mentioned in Section 4, Rule 102, be no
longer illegal at the time of the filing of the application. Any such
supervening events are the issuance of a judicial process preventing the
discharge of the detained person.
The TERM COURT INCLUDES,
THE ISSUANCE OF THE MISSION ORDER WAS A SUPERVENING
EVENT

Republic v. CA and Wong, G.R. No. 97906, May 21, 1992, 209 SCRA 189 (re:
legal significance of persons name; nature of proceeding under Rule 103;
person who may file petition under Rule 103; need for publication for court to
acquire jurisdiction)-BATUCAN

Republic v. Lim, G.R. No. 15388, January 13, 2004, 419 SCRA 123 (re: no
judicial authority required for continued use of surname SINCE USING IT
BIRTH)BAUTISTA
CHANGE OF NAME OR SURNAME- 103: ONE NAME TO ANOTHETR
108: CORRECTION- CHANGE OF NAME ONLY ON A PARTICULAR ERROR
MISPELLED SURNAME-
NOT CHANGE BUT ONLY A CORRECTION OF NAME-
PROHIBTED ONLY TO THE EXTENT THAT IT PREJUDICES OR
CONFUSION; IN THIS CASE, THERE IS NO SHOWING THAT THE
CHANGE OF YOU-TO YU IS PREJUDICIAL

Yasin v. Hon. Judge, Sharia District Court, G.R. No. 94986, February 23, 1995,
241 SCRA 606 (re: no need for change of name for married woman whose
marriage is annulled, or who obtains divorce)-BASIG

VENUE 103: - RTC PLACE OF RESIDENCE

108- LCR WHERE THE ENTRIES ARE TO BE CORRECTED.

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IF ANNULED: GO BACK TO THE ORIGINAL NAME DURING SINGLE
IT IS NOT A CHANGE OF PERSON BUT A CHANGE OF CIVIL STATUS

Republic v. Zosa, G.R. No. L-48762, September 12, 1988 (re: inclusion of all
names and aliases in petition; in petition for change of name, title of 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 even if these data are found in
the body of the petition)-CATAYEN

FAILURE TO INCLUDE ALIASES IS DEFECTIVE

Republic v. Marcos, G.R. No. L-31065, February 15, 1990, 182 SCRA 223 (re:
proper party to file petition under Rule 103; rule in change of name of
minors)
Petitioner himself admits that he is known by all these names. This gives rise
to the necessity of including his aliases in the title of the petition not only in
the body thereof. xxxx We accordingly hold that for a publication of a petition
for a change of name to be valid, the title thereof should include, first, his
real name, and second, his aliases, if any
In Republic vs. Zosa, G.R. No. 48762, September 12, 1988, this Court
explained the reason for the rule requiring the inclusion of the name sought
to be adopted and the other names or aliases of the applicant in the title of
the petition, or in the caption of the published order. It is that the ordinary
reader only glances fleetingly at the caption of the published order or the title
of the petition in a special proceeding for a change of name. Only if the
caption or the title strikes him because one or all of the names mentioned are
familiar to him, does he proceed to read the contents of the order. The
probability is great that he will not notice the other names or aliases of the
applicant if they are mentioned only in the body of the order or petition.

In the case at bar, the caption of both the verified petition dated March
30,1968, and the published order of the trial court dated April 4, 1968 read,
thus: IN RE: PETITION FOR CHANGE OF NAME OF THE MINOR MAY SIA ALIAS
MANMAN HUANG TO MARY PANG DE LA CRUZ, PANG CHA QUEN, Petitioner. (P.
15, Rollo.) The omission of her other alias-- "Mary Pang"-- in the captions of
the court's order and of the petition defeats the purpose of the publication.

In view of that defect, the trial court did not acquire jurisdiction over the
subject of the proceedings, i.e., the various names and aliases of the
petitioner which she wished to change to "Mary Pang De la Cruz."

In Go Chin Beng vs. Republic, L-29574, August 18, 1972, we held that 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 (Haw Liong vs. Republic, L-
21194, April 29,1966; Chill Hap Chin vs. Republic, L-20018, April 30,
1966; Republic vs. Tanada, et al., L-31563, November 29, 1971; Alfon
vs. Republic, I,51201, May 29, 1980);
4. having continuously used and been known since childhood by a Filipino
name, unaware of his alien parentage (Josefina Ang Chay vs. Republic,
L-28507, July 31, 1980); or

112
 5. a sincere desire to adopt a Filipino name to erase signs of former
alienage all in good faith and not to prejudice anybody
As may be gleaned from the petition filed in the lower court, the reasons
offered for changing the name of petitioner's daughter are: (1) that "her
daughter grew up with, and learned to love and recognize Alfredo de la Cruz
as her own father" (p. 23, Rollo); (2) to afford her daughter a feeling of
security (pp. 23-24, Rollo); and (3) that "Alfredo de la Cruz agrees to this
petition, and has signified his conformity at the foot of this pleading" Clearly,
these are not valid reasons for a change of name.

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. In Padilla vs. Republic, 113 SCRA 789, we specifically held that our
laws 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.

Another reason for disallowing the petition for change of name is that it was
not filed by the proper party. Clearly, 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. In this case, however, the
petition was filed by Pang Cha Quen not by May Sia. Hence, only May Sia
herself, alias Manman Huang, alias Mary Pang, when she shall have reached
the age of majority, may file the petition to change her name. The decision to
change her name, the reason for the change, and the choice of a new name
and surname shall be hers alone to make. It must be her personal decision.
No one else may make it for her. The reason is obvious. When she grows up
to adulthood, she may not want to use her stepfather's surname, nor any of
the aliases chosen for her by her mother.

As pointed out by the Solicitor General, the State has an interest in the name
borne by each individual for purposes of identification and the same should
not be changed for trivial reasons like the instant case (Ty vs. Republic L-
18669, November 29, 1965). A change of name is a mere privilege and not a
matter of right (Ong Peng Oan vs. Republic, L-8035, November 29, 1957; Yu
vs. Republic, L- 22040, November 29, 1965) and because the petition to
change the name of the minor May Sia is not supported by weighty reasons,
the trial court erred in granting it.

GR no enetires Can be changed when there is no court order

Except :clerical- administrative RA 10172

Luardo

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