SPECIAL PROCEEDINGS

NOTE: the court first taking cognizance excludes all other

What is a special proceeding? courts otherwise there will severable proceedings
Rule 1, section 3 (c): remedy which a party seeks to
establish a right, status, or particular fact When may you contest the assumption of jurisdiction of
the court?
What is the difference between Specpro, ordinary civil a. In an appeal from that settlement proceeding in the
action, summary procedure?
Ordinary civil action: Rule 1, section 3 (a): civil action may original case
be ordinary or special. b. When the want of jurisdiction appears on the record. In
Summary procedure: this case it is obvious, so you do not need to proceed.
If the improper venue is not patent then there must be
What special proceedings are provided in the rules? evidence presented to show that there is want of
Those in the Rules of court!! But take note that there are jurisdiction.
other special proceedings enforced by law like enforcement
of arbitration awards How do you settle of a deceased married person?
If both of them die, then their estates can be settled in either
How are special proceedings distinguished from of the proceeding.
summary judgment?
What is the nature of probate proceedings?
Are the rules in ordinary civil actions applicable in They cannot resolve collateral matters, only those matters
special proceedings? pertaining to the settlement of the estate.
Yes in some instances. Like filing and service of pleadings Example: they can only settle those liquidation and
distribution of estate
Special Proceeding v. Ordinary Civil Action
May the probate court decide on issue of ownership?
GR: NO.
Special Proceeding Ordinary Civil Action
Except:
there is only one party as a
a. When the parties to the settlement submit
general rule
commenced through a commenced through a themselves to the court to resolve issue on
petition complaint ownership
no responsive pleading is responsive pleading is called b. Provisionally for purposes of inventory
required unless there is an an answer
What are the different kinds of settlement proceedings?
oppositor
a. Principal -
limited jurisdiction
no need for cause of action, there is a cause of action b. Ancillary – decreed by foreign court or when some
you precisely go to court to which is the right violated of properties are in foreign country
establish that particular right
What is the nature of an estate?
15 day ordinary period of
It is in the nature of an artificial person however there is now
appeal a conflict in the jurisprudence that says it is not an artificial
Record on appeal is usually a record on appeal is not person.
required, multiple appeals required
are allowed What is the extent of jurisdiction of probate courts?
decree judgment Merely on the settlement of estate

NOTE: there are some special proceedings that are to be What warrants and processes may the courts may
filed in FAMILY COURTS/REGIONAL TRIAL COURT issue?
[Rule 73, section 3] In the exercise of probate jurisdiction,
SETTLEMENT OF ESTATES Courts of First Instance may issue warrants and process
Rule 86 necessary to compel the attendance of witnesses or to carry
In what courts should the estate of a deceased be into effect their orders and judgments, and all other powers
settled? granted them by law.
It depends on: The court may issue a warrant for the apprehension and
 Jurisdiction – consider the gross value of the imprisonment of a person [until s/he performs the order or
estate [exceeds 300k/400k depends if judgment] if such person does not perform the order or
outside/inside Manila  RTC] if less than that, judgment rendered by a court in the exercise of its probate
MTC (if in Manila, MetroTC) jurisdiction.
 Venue: Consideration is his residence, residence
not domicile!! Physical habitation at the time of his May the estate of an absentee be settled?
Yes!
death
What are the modes of settlement?
 If the decedent is a non-resident file in the court
a. Judicial
having jurisdiction where any of his property can
 Intestate
be found
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  Partition
 Summary – when the gross value of the
estate DOES NOT EXCEED 10k (this is
irrelevant! Wala namang estate na Php10k!!)
b. Extrajudicial Settlement
 Among several heirs
 Sole heir – self adjudication
When may there be extrajudicial settlement?
When the decedent left no will and no debts
If there are outstanding debts, what will happen?
The heirs can opt to pay debts first then proceed with
extrajudicial settlement
What do you mean of newspaper of general circulation?
Is “Bomba” included?
No! There must be a BONA FIDE subscription. But
nevertheless the SC now allows to be published in these
kinds of newspapers
There should be 21 days of publication, but if there is a total
of 15 days of publication that is sufficient <- double check
Why do you need publication?
Because the proceedings are QUASI-IN REM
When real properties are subject to extra judicial
partition, what are other requirements?
Registration of the affidavit of sole adjudication
Why is registration required?
The lis pendens is technically not a lien, it is merely in the
nature of a notice. The affidavit of sole adjudication is
required to be registered so that all other persons may be
notified, and so they have the opportunity to present their
claims before the period of prescription.
If it is a real property, the period of prescription is two
years from the date of registration. To whom does this
two year period apply?
Those unduly deprived in their participation in the estate as
an heir. This does not apply to those heirs who were
deprived of their right to participate, as this becomes an
implied trust (10years). This only applies to heirs who took
part in the settlement and cheated among themselves. Even
creditors can demand from those who took part, and they
may be bound as to the 2-year period.
After the lapse of this two-year period, do you have to
go to court to cancel the annotation? No, it becomes
functus officio
What are the modes that are in rem?
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Why is the production of wills mandatory?
a. Based on civil code on succession (article 888)
b. Against public policy
c. Imprescriptible – there is no time bar where the will
may be probated
What is the effect of probate?
 Rule 39, Section 47 – effect of judgment: res judicata in
actions in rem
 Conclusive as to its due execution
When you say that it is conclusive as to its due
execution, what do you mean by that?
That the decedent has/had testamentary capacity because
he knows/knew the nature of his estate and the persons
entitled to inherit it
What about the testamentary dispositions? Can the
probate court pass upon this?
As a general rule: NO
Exception: The practicality rule. e.g. if there is preterition, it
is obvious on the face that the will is not valid and it would
not be practical for the court to proceed with probate without
considering the validity of the testamentary disposition
What are the duties of the custodian of the will? What
kind of custody is contemplated?
Section 2. Custodian of will to deliver. — The person who
has custody of a will shall, within twenty (20) days after he
knows of the death of the testator, deliver the will to the court
having jurisdiction, or to the executor named in the will.
Section 4. Custodian and executor subject to fine for
neglect. — A person who neglects any of the duties required
in the two last preceding sections without excused
satisfactory to the court shall be fined not exceeding two
thousand pesos.
Section 5. Person retaining will may be committed. — A
person having custody of a will after the death of the testator
who neglects without reasonable cause to deliver the same,
when ordered so to do, to the court having jurisdiction, may
be committed to prison and there kept until he delivers the
will.
Not every type of possession of the will is included. The
custody must be in the nature of bailment. You have to tell
the person that he has to deliver it otherwise he will not be
held accountable. If you don’t tell him that then section 4 will
not come into place. Note that the executor should present
the will if he is in possession of it.
What is the difference between section 4 and section 5
of Rule 86? What is the nature of the proceeding?
Section 4: There is a penalty in the nature of a fine. There is
no pending probate proceeding so it is merely in the nature
of a penalty. In order to enforce the fine you have to file a
criminal action.
Section 5: There must be a prior order. Meaning there must
be a pending settlement proceeding.
When can the court hold the person who fails to deliver
the will in contempt?
Section 5  DOUBLE CHECK THIS, I’m not sure
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What are the contents of a petition for probate?
Section 2. Contents of petition. — A petition for the
allowance of a will must show, so far as known to the
petitioner:
a. The jurisdictional facts;
b. The names, ages, and residences of the heirs,
legatees, and devisees of the testator or
decedent;
c. The probable value and character of the property
of the estate;
d. The name of the person for whom letters are
prayed;
e. If the will has not been delivered to the court, the
name of the person having custody of it.
But no defect in the petition shall render void the allowance
of the will, or the issuance of letters testamentary or of
administration with the will annexed.
 Note: It is not required that you have an existing interest
to be an executor/administrator.
 Note: 6, 7, 8, and 9 – these are provisions regarding
weight and sufficiency of evidence for purposes of
allowing in the will.
What are the grounds for disallowing a will?
a. Formalities were not followed
b. Testator not of sound mind at the time he executed
the will
c. Vitiated consent
d. Signed the document without the intention of
creating a will
What is the reprobate of will?
It is a special proceeding to establish the validity of a will
previously proven in a foreign country
What are the things to be proven?
a. That the court is a probate court
b. Prove foreign law
c. Lex loci celebrationis – in accordance with the
formalities of the will
What may be probated?
Any instrument that contains testamentary disposition and
complies with the formalities of law
NOTE: a petition/motion/presentation of claims to the
probate court is not an initiatory pleading, so you don’t need
a certificate of non-forum shopping even if there is a new
matter or a new claim. Just present your claim.
What is the nature of estate of a deceased?
There are conflicting decisions! In one case, the court says
the estate has no capacity to sue, as it is not a juridical
person. In another case, the court said it is a juridical entity
that can sue and be sued.
Can you appeal summary cases under the Family Code?
No. According to a case (Republic v. Loguino? Londrino???)
Summary cases under the family ode, NO APPEAL may be
taken, specifically an action for presumptive death for
purposes of remarriage w/c are final and executory. Do NOT
confuse this situation w/ cases on summary procedure. The
remedy is CETIORARI b/c 65 says where there is no appeal
or adequate remedy under the law. Of course if you are
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presumed dead, you don’t need to re-appear, an affidavit is
sufficient to show you are still alive.
Rule 87
Do you need to file an action under Rule 87?
As a general rule, no, because you have to present the will in
Rule 86.
Exceptions:
a. Action to recover real or personal property  because
they are not money claims
b. Foreclosure of real estate
c. Damages for an injury to persons or property  earlier
we said money claims present it under Rule 86
Judgment for Money, in here, Judgment for Damages.
Example: subpoena by the decedent of those who are
in Samar, but it turned out that the subpoena was
fictitious but the decedent dies during the pending of
the case, so you can still claim this
How long may the admin/exec retain property not
distributed in the will?
For as long as there are still debts to be paid, the
admin/exec has power to retain the property in the estate.
This is why Section 3 forbids the exec/admin to sue until the
heirs are assigned. This usually happens when there is
already partition, until it is assigned the rights are inchoate.
What do you mean to compound?
Compound simply means to compromise with the debtor,
note that this should be w/ approval of the court.
How is Section 6 different from Rule 39?
The purpose of this in SpecPro is to find out if there are
properties w/ third persons. The proceeding is inquisitorial. If
these are made, and it is found that 3 rd persons are in
possession, you cannot compel the person to put the prop
back, you have to bring an action. HOWEVER in Rule 39
you can COMPEL the person to deliver to court w/o the
necessity of filing an action. This is how rule 39 and rule 87
are different. 28 Phil 137??
Under Section 7, who is the “other person” referred to?
It is someone who was designated by the
executor/administrator, which usually happens when the
executor/administrator does not live in the place where the
property is located, so he asks someone to manage for him.
When that person does not give the proceeds, apply sec 7.
To what situation does Section 8 refer?
To the period before the issuance of letters testamentary, if
there is embezzlement, the penalty is DOUBLE the value of
the property. BUT if the decedent authorized the person to
administer the property this provision does not apply (as in
the case of adminstrators). This provision only applies to
unauthorized people.
NOTE: Section 9 is similar to the provisions in Civil Law of
transactions in fraud of creditors
E.g. X is about to die, he has cancer. He alienates his
property to his friend on the condition that when his children
come of age, the friend has to give to his children (Because
his liabilities exceed assets). X dies. The admin finds out that
there was an alienation in fraud of creditors, avail of sec 9.
Under Section 10, if the executor does not bring action,
creditor may bring action to recover property fraudulently
conveyed during the lifetime of the decedent. The creditor is
a third party who is allowed to bring an action to recover the
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assets. In order to protect the estate, the creditor must put
up a bond, as it may have been a transaction at arms length.
Also, the action must be brought on behalf of all the
creditors, and there must be approval of the court. However,
if the action is by the creditor against the administrator
himself, the requirement of prior court approval may be
dispensed with.
Rule 90
When may order for distribution be made?
This procedure is preceded by an order of partition. An order
of partition is an agreement among the heirs. You cannot
have distribution if there are debts to be paid, so prior to
distribution, the heirs may agree on the “project of partition”
because sometimes it is not practical to demand physical
distribution of the property
What is the jurisdiction of the probate court?
Earlier we said probate courts have limited jurisdiction and
cannot pass on ownership. This section tells us what other
matters can be determined by the probate court. The
probate court can pass upon:
 Who are the lawful heirs of the deceased (declaration
of heirship)
 Issue of hereditary shares under the law of legitime
(how much the heirs can receive)
 Collation (see Sec 2)
NOTE: these are resolved in an ORDINARY action, but the
probate court will be the one trying the case. Since it is an
ordinary case, there must be a full blown trial w/ presentation
of evidence.
How can you effect distribution if there are contingent
claims?
If the existing claims are contigent b/c they are not due and
demandable, you can give a bond to answer to answer for
contingent liabilities, then you can have distribution.
Which properties may be subject to collation?
Art. 1061. Every compulsory heir, who succeeds with other
compulsory heirs, must bring into the mass of the estate any
property or right which he may have received from the
decedent, during the lifetime of the latter, by way of
donation, or any other gratuitous title, in order that it may be
computed in the determination of the legitime of each heir,
and in the account of the partition. (1035a)
Art. 1068. Expenses incurred by the parents in giving their
children a professional, vocational or other career shall not
be brought to collation unless the parents so provide, or
unless they impair the legitime; but when their collation is
required, the sum which the child would have spent if he had
lived in the house and company of his parents shall be
deducted therefrom. (1042a)
Art. 908. To determine the legitime, the value of the property
left at the death of the testator shall be considered,
deducting all debts and charges, which shall not include
those imposed in the will.
To the net value of the hereditary estate, shall be added the
value of all donations by the testator that are subject to
collation, at the time he made them. (818a)
Section 3 and 4 were read aloud.
VERY IMPORTANT: WRITTEN IN THE SYLLABUS
Instances when probate court can issue writ of
execution
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 Rule 74 Sec 4 Liability of distributes and estate
 Rule 88 Sec 6 Court to fix contribute shares where
devisees, legatees or heirs have been in
possession
 Rule 90 Sec 3 By whom expenses of partition paid
 Rule 142 Sec 30
 Rule 90 Sec 1
o Estate of Pran v. Salas 210 SCRA 303 
execution may be issued against
admin/exec to distribute property to the
heirs
NOTE: the probate court not limited to settlement
proceedings, also has jurisdiction over guardianship
ESCHEAT
What is escheat?
In default of heirs, the state inherits.
What are the requisites of escheat?
 Someone died
 Leaving no heir or person entitled by law to inherit (this
is INTESTATE! If he died w/ a will though an instituted
heir is not legally mandated to inherit, you follow the will
of the testator and escheat will not take place)
 Initiated by the Solicitor General
NOTE: the seizure refers to an owner in fee simple
What are the three kinds of escheat?
1. Sec. 1. No heir, no will
2. Sec. 5. Alienation in violation of law.
Republic v. Quasha: Recent jurisprudence recent when
property is illegally transferred and is already titled in
favor of a THIRD PERSON through a legal transaction,
the court cannot take the property back. Escheat is
only applicable if the transaction was illegal.
3. Act 3936. Unclaimed Balances Law. Dormant accounts.
Where the res is located
In whose name are estate actions filed?
In the name of the REPUBLIC of the Philippines not People
of the Philippines
NOTE: in FORFEITURE proceedings are criminal in nature
but effect is civil. They must be filed in the name of the
Republic of the Philippines and not by People of the
Philippines. Proceedings are now filed by the Ombudsman
not the SolGen (Cabal v. Kapunan G.R. No. L-25018)
What is the required period for publication?
See Sec 2. In escheat the publication is longer than usual,
as the law requires 6 weeks consecutive weeks for
publication. The idea is to give people a longer period to
come forward to claim the property
Can you convert a probate proceeding into an escheat
proceeding?
NO because the rules are different!! Similarly, you cannot
convert settlement proceeding into an escheat proceeding.
Who is entitled to the property escheated?
The municipalities! Ordinarily where they are located
Within what period do you have to claim the estate
escheated?
If a person entitled to the estate escheated appears and files
a claim with the court within five (5) years from the date of
the judgment, he shall obtain possession and title to the
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property. If it has already been sold, the municipality or city Sec 9 Rule 98. The powers of the trustee are limited with
shall be accountable to him for the proceeds, after deducting respect to the sale of the properties under the administration,
expenses for the care of the estate, but a claim not made as there must always be prior court approval.
with said time shall be forever barred.

TRUSTEES

This Rule only applies to express trusts NOT implied trusts.

Distinguish a trustee from an executor/administrator

Trustees are not limited to carrying out the settlement of the
estate. Even if the trustor is alive trustee may act.

Administrators/executors are limited to the settlement of the

estate, and has a limited duration.

If there is property that is supposed to be left to a minor, the

testator can provide for a specific trustee to manage this
property, because the executor has limited duration.

As a general rule the trustee must file a bond. What are

the exceptions to this rule?
 When the testator has directed or requested such
exemption; and
 When all persons beneficially interested in the trust,
being of full age, request the exemption.
NOTE: Such exemption may be cancelled by the court at
any time and the trustee required to forthwith file a bond.

What are the conditions included in the bond of the

trustee?
See Sec 6 Rule 98
a. Make a true inventory of all the real and personal estate
belonging to him as trustee;
b. Manage and dispose of all such estate, and faithfully
discharge his trust;
c. Render upon oath at least once a year until his trust is
fulfilled, unless he is excused, a true account of the
property in his hands and of the management and
disposition thereof;
d. At the expiration of his trust, settle his accounts in court
and pay over and deliver all the estate remaining in his
hands

Discussion on conditions of the bond:

 Purpose to ensure that whoever assumes the office
knows which property is included.
 He should administer the properties. The degree of care
is that of a extra-ordinary diligence
 The other condition is that he must render an
accounting. This will determine w/n there is good/bad
administration b/c it will show what you started w/ and
which properties are left.

What are the requisites for removal of a trustee?

1. File a petition
2. Notice to trustee
3. Hearing

What are the requisites for resignation of the trustee?

 Trustee must render his final account so he can be held
accountable in case anything is missing
 Don’t need the grounds for removal
 Must be approved by the court

What is the limitation on the powers of the trustee?

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 GUARDIANSHIP
NOTE: For guardianship of MINORS you have to go to
family courts. But for anyone else you can go to the regular
courts.
READ A.M. No. 03-02-05-SC [May 01, 2003] Re: Proposed
Rule on Guardianship of Minors
Sec. 27. Effect of the rule. – This Rule amends Rules 92 to
97 inclusive of the Rules of Court on guardianship of minors.
Guardianship of incompetents who are not minors shall
continue to be under the jurisdiction of the regular courts and
governed by the Rules of Court.
Who may petition for guardianship of minors?
 Any relative
 Third person on behalf of minor
 If minor over certain age, minor himself
 Secretary of health
 Secretary DSWD
Where do you file petition as to venue?
In the family court where the minor has actual residence
What are the circumstances considering in granting
guardianship?
See Family Code provisions on substitute parental authority.
Art. 222. The courts may appoint a guardian of the child's
property or a guardian ad litem when the best interests of
the child so requires. (317)
Art. 223. The parents or, in their absence or incapacity, the
individual, entity or institution exercising parental authority,
may petition the proper court of the place where the child
resides, for an order providing for disciplinary measures over
the child. The child shall be entitled to the assistance of
counsel, either of his choice or appointed by the court, and a
summary hearing shall be conducted wherein the petitioner
and the child shall be heard.
However, if in the same proceeding the court finds the
petitioner at fault, irrespective of the merits of the petition, or
when the circumstances so warrant, the court may also
order the deprivation or suspension of parental authority or
adopt such other measures as it may deem just and proper.
(318a)
Art. 220. The parents and those exercising parental authority
shall have with the respect to their unemancipated children
on wards the following rights and duties:
Art. 232. If the person exercising parental authority has
subjected the child or allowed him to be subjected to sexual
abuse, such person shall be permanently deprived by the
court of such authority. (n)
Art. 225. The father and the mother shall jointly exercise
legal guardianship over the property of the unemancipated
common child without the necessity of a court appointment.
In case of disagreement, the father's decision shall prevail,
unless there is a judicial order to the contrary.
What are the grounds for a petition of guardianship?
See Sec 4.
a. death, continued absence, or incapacity of his parents; 
b. suspension, deprivation or termination of parental
authority; 
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c. remarriage of his surviving parent, if the latter Is found
unsuitable to exercise parental authority; or 
d. when the best interests of the minor so require.
Also consider:
Art. 228. Parental authority terminates permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child. (327a)
Art. 229. Unless subsequently revived by a final judgment,
parental authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a
case filed for the purpose;
(4) Upon final judgment of a competent court divesting the
party concerned of parental authority; or
(5) Upon judicial declaration of absence or incapacity of the
person exercising parental authority. (327a)
Even if the minor has parents, if the best interest of the child
is prejudiced, the child can have a guardian. This is because
of the doctrine of parens patriae.
Who may be appointed as a guardian?
There is an order of preference, firstly the grandparents, if
none, oldest brother or sister over 21 years of age, then the
actual custodian over 21 years of age, or any person at the
discretion of the court who would serve the best interests of
the minor
What if all the grandparents survive?
There is no preference/heiarchy among the grandparents.
Is the order of preference mandatory?
NO. because the rule says so: “observing as far as
practicable”
What are the contents of the petition for guardianship?
a. Jurisdictional facts
Those that set forth facts that show the case is within
the jurisdiction of the court
b. Name, age, prospective wards
c. Ground
d. State who the relatives are w/in the 4 th civil degree, and
they should be notified
Who may oppose the petition for guardianship?
 No longer a minor
 That the person for whom letters of guardianship are
prayed is UNSUITABLE
In which case the person can ask that the petition for
guardianship be denied, or that letters of guardianship be
issued to himself or to another suitable person named in the
opposition.
What is the venue when the minor is a non-resident?
Where the properties of the minor can be found
Is the presence of the non-resident minor required?
The court may dispense with the presence of the non-
resident minor.
Does the judgment become final in guardianship?
See Sec 26 + 13 in A.M. No. 03-02-05-SC
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It becomes final, and is entered w/ civil registrar, and
annotated on the title of the property belonging on the minor.
When the the minor becomes of age, you have to go to court
to cancel the guardianship, then you have to go to the civil
registrar and have it entered again.
NOTE: Even if there is already a decree granting
guardianship, it doesn’t end there, the guardian has to report
regularly and ask permission from the court to do things like
sell/encumber the property. Guardianship only terminates
when the minor becomes of age and you go to court and
have the guardianship terminated. Under the old rule, you
had go back to same court which granted the guardianship.
However, under the present rule, you can go to any court to
have cancelled.
If reason for guardianship is not just minority but is also
incompetency, when does it terminate?
o When the ward dies! Then notify court of the
ward’s death
What about the bond requirement for parents?
If the market value of the property or the annual income of
the child exceeds P50,000, the parent should give a bond in
the amount determined by the court, but this bond cannot be
less than 10% of the value of such property.
When can the guardian sell or encumber the property?
See Sec 19. When the income of a property under
guardianship is insufficient to maintain and educate the
ward, or when it is for his benefit that his personal or real
property or any part thereof be sold etc.
Can the property of the ward be disposed or
encumbered for the benefit of the family?
NO. Family Code Art 226. The property of the
unemancipated child earned or acquired with his work or
industry or by onerous or gratuitous title shall belong to the
child in ownership and shall be devoted exclusively to the
latter's support and education, unless the title or transfer
provides otherwise.
Note that the property belongs to the child ONLY, and shall
be devoted EXCLUSIVELY for the child’s support and
education, UNLESS the title so provides. This is a deviation
from the old rule that parents enjoy usufructuary rights on the
property of the minor
Sec 24 grounds for removal or resignation:
Sec. 24. Grounds for removal or resignation of
guardian. – When a guardian becomes insane or
otherwise incapable of discharging his trust or is found
thereafter to be unsuitable, or has wasted or
mismanaged the property of the ward, or has failed to
render an account or make a return for thirty days after
it is due, the court may, upon reasonable notice to the
guardian, remove him as such and require him to
surrender the property of the ward to the person found
to be lawfully entitled thereto.
The court may allow the guardian to resign for justifiable
causes. Upon the removal or resignation of the guardian, the
court shall appoint a new one. No motion for removal or
resignation shall be granted unless the guardian has
submitted the proper accounting of the property of the ward
and the court has approved the same.
This is VERY similar to the provision on TRUSTEES. Note
the requirement of accounting.
REMEDIAL LAW REVIEW 2ND SEMESTER 2010-2011 (JUSTICE GESMUNDO)
Special Proceedings
Julia Britanico, Kevin Edrick Relopez, Caroline Tan
ADOPTION
What is adoption?
It is a juridical act, a proceeding in REM, That creates
between two persons a relationship similar to that which
results form legitimate paternity and filiation
What is filiation?
Rights and responsibilities of children with their parents
What is paternity?
Rights and responsibilities of parents to their children
What laws apply?
Domestic adoption and Inter-country adoption
DOMESTIC ADOPTION
Who may adopt?
Yes. See Sec 4. Filipinos of legal age, with full civil capacity,
of good moral character, not convicted of a crime involving
moral torpitude, emotionally and psychologically capable of
caring for child, at least 16 years older and in a position to
support and care of the child.
Can aliens adopt?
Yes. See Sec 4. They must have all the qualifications of the
Filipinos, and additional requirements:
 Resident Philippines at least 3 years prior
 Maintain residence until adoption is final
 Certified to have legal capacity to adopt by his country
 His country allows him to adopt
If aliens can adopt in the Philippines, can Filipinos adopt
aliens?
When is a child legally available for adoption?
A child voluntarily or involuntarily committed to the DSWD
What is simulation of birth?
The tampering of the civil registry making it appear in the
birth records that a certain child was born to a person who is
not his/her biological mother, causing such child to lose
his/her true identity and status
Can you be criminally prosecuted for simulation of
birth?
Yes. You can now criminally prosecuted for simulation of
birth
RPC Art. 347. Simulation of births, substitution of one child
for another and concealment or abandonment of a legitimate
child. — The simulation of births and the substitution of one
child for another shall be punished by prision mayor and a
fine of not exceeding 1,000 pesos.
The same penalties shall be imposed upon any person who
shall conceal or abandon any legitimate child with intent to
cause such child to lose its civil status.
Any physician or surgeon or public officer who, in violation of
the duties of his profession or office, shall cooperate in the
execution of any of the crimes mentioned in the two next
preceding paragraphs, shall suffer the penalties therein
prescribed and also the penalty of temporary special
disqualification.
After 2003 prosecution for simulated birth was allowed
because the amnesty in the law provides that simulation of
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birth was made prior to the date of effectivity of RA 8552,
and that the petition for adoption was filed within 5 years
from that date.

Who may be adopted?

See Sec 5

What is the rule when there are four petitions in one?

One single petition for adoption, there are several reliefs
prayed for: grant adoption, change of name….?

Who’s consent is required for adoption?

 Children of the adoptive parents
 Adopted children of the adoptive parents

Do you have to present the party giving consent?

No, a verified affidavit is sufficient

Does adoption give rise to the right to acquire

citizenship?
No, citizenship is a matter of political law, adoption is a
process in civil law. You have to go through the process to
acquire citizenship.

Note: Sec 16
The decree of adoption take effect as of the date of the filing
of the original petition. Thus, adoption retroacts to the date
of the filing the petitionThat way if even before the issuance
of the decree the adopter dies, the adopted child can inherit
from the adopter.

What is the effect of adoption?

 Legal tie between parents and child terminate
 Adopted child is considered the legitimate child of the
adopter and can inherit from the adopter
 Reserva adoptive NO LONGER EXISTS. At the death
of the adopted child, the estate goes to heirs, if none,
goes to adoptive parents
 Adoptive parents have parental authority

INTER-COUNTRY ADOPTION

Who may be adopted?

Same as in domestic adoption

Whats the role of the RTC?

The petition can be filed in the Court having jurisdiction, but it
will certify the case to the ICAB. You can also file the petition
directly with the ICAB, so really the court has no role. If you
file in the Court you need to pay filing fee.[Sec 32 A.M.
No.02-6-02-SC]

What is the “best interest of the minor” standard?

 Must have best interest of child at hard, can’t subject
child to child-trafficking etc
 Read requirements in annex: police clearance,
character ref, full body postcard-size picture

What child trafficking?

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 HABEAS CORPUS
What is habeas corpus?
Literal translation: have the body with you
What are the governing rules of HC?
Rule 102 and A.M. No. 03-04-04-SC 2003-04-22 Habeas
Corpus in relation to the Custody of Minors
Obiter: J. Abad’s expertise while at OSG was Martial law
cases
What are the two situations contemplated in S1R102?
Unlawful deprivation of liberty
Deprivation of custody from one who is entitled to it
What’s the difference between the two situtations?
Unlawful deprivation of liberty refers to public acts
Deprivation of custody refers to private acts
What is the nature of habeas corpus?
It is a special proceeding in the nature of a civil proceeding.
NOTE: Consti provisions related to HC
When does habeas corpus apply?
o Deprivation of constitutional right resulting in
restraint of a person
o Court has no jurisdiction to impose sentenc
o An excessive penalty has been imposed
o Denial of right to speedy trial
o When the law is amended, as when penalty is
lowered
Must physical restraint be the only basis?
Actual physical restraint is not required, any restraint which
will prejudice freedom of action is sufficient.
What are the requisites for the application for the writ of
habeas corpus?
The petition must be signed and verified either by the party
for whose relief it is intended, or by some person on his
behalf. It must set forth:
a) That the person in whose behalf the application is made is
imprisoned or restrained of his liberty;
b) The officer or name of the person by whom he is so
imprisoned or restrained; or, if both are unknown or
uncertain, such officer or person may be described by an
assumed appellation, and the person who is served with the
writ shall be deemed the person intended;
c) The place where he is so imprisoned or restrained, if
known;
d) A copy of the commitment or cause of detention of such
person, if it can be procured without impairing the efficiency
of the remedy; or, if the imprisonment or restraint is without
any legal authority, such fact shall appear.[Rule 102, Sec 3]
What is the responsive pleading to the writ?
Return to the writ
What is the responsive pleading to the return?
It is called a TRAVERSE TO THE RETURN
What is the nature of the return to the writ?
See: Umil v. Ramos
If it appears that the prisoner is in custody under a warrant of
commitment in pursuance of law, the return shall be
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considered prima facie evidence of the cause of restraint.
(Sec 13 Rule 102)
If he is restrained of his liberty by any alleged private
authority, the return shall be considered only as a plea of the
facts therein set forth, and the party claiming the custody
must prove such facts. (Sec 13 Rule 102)
Can you resort to HC in lieu of appeal?
NO
Can you resort to HC if the right to bail exists?
NO, because there is another remedy (the right to bail) that
exists
Distinguish preemptory writ from preliminary citation
Basically, these pertain to the stages in a HC proceeding.
 Preliminary citation  directing the person to bring the
detainee to the court and explain the detention
 Preemptory  refers to the writ already, w/n the court
will grant the release, when the court resolves the writ
itself
See G.R. No. 160792 In the Matter of HC of Alejano
When is HC not proper or applicable?
 As a substitute for appeal
 For asserting or vindicating denial of right to bail
 For correcting errors in appreciation of
facts/appreciation of law
When is the writ allowed to be discharged?
Once the person in custody is charged in court, the function
of the writ of HC is dismissed. His remedy will now be
judicial. Remember that HC has nothing to do with the
merits of a particular case.
ILAGAN V. ENRILE
Facts: Atty. Ilagan was arrested in Davao City & detained on
the basis of a mission order allegedly issued by the Ministry
of Nat’l. Defense. He was visited by 15 lawyers fr. IBP
Davao Chapter. One of the visitors was also arrested &
detained on the basis of an unsigned MO. After several
days, another IBP member was arrested. Petitioners argue
that the arrests were illegal & violative of the Consti, since
arrests cannot be made on the basis of mission orders.
Resps. Answered that the Writ was suspended as to them by
virtue of Proc. #2045-A.
Held: IF the detained attys. Question their detention bec. of
improper arrest, or that no prelim inv has been conducted,
the remedy is not a pet. for a writ of HC but a Motion for the
TC to quash the Warrant of Arrest, &/or the info on grounds
provided by the rules or to ask for an investigation/
reinvestigation of the case. This pet. is now moot &
academic bec. of criminal charges for rebellion filed vs. the
lawyers.
Distinguish between writ of habeas corpus and the writ
of amparo (A) and habeas data (HD)?
HC: Pertains to legality of detention (there must be an actual
detention, custody of the person)
A: Pertains to actual and threatened violations of right to life
liberty or security
This is unlike HC which is requires ACTUAL detention. So
A is more broad.
HD: Pertains to the right to privacy with respect to
information dealing with the individuals life security or liberty
Note there is no specific provision in our consti protecting
the right to PRIVACY.
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 WRIT OF HABEAS CORPUS IN RELATION TO
THE CUSTODY OF MINORS
[A.M. NO. 03-04-04-SC 2003-04-22]
NOTE: In order to avail of this writ, the case must be in
relation to the custody of minors
Kwento about a case:
The children were divided into 2 groups, one pro-mother, the
other pro-father, one group claims that the other group is
unlawfully detaining the father and filed for HC under this
rule. The Court held the rule did not apply to this case,
because it was about the custody of adults.
Note however that custody issues can also pertain to adults,
but cases of this nature are not covered by this rule.
Where do you file the petition under this rule?
Family Court either where the petitioner resides or where the
child may be found
What is the rule on summons? How is this different
from ordinary rules?
See Sec 5. There is NO substituted service of summons
under this rule.
What is the rule on motion to dismiss?
See Sec 6. Motion to dismiss is not allowed EXCEPT on the
ground of lack of jurisdiction over the subject matter or over
the parties.
What is the rule on verified answer?
See Sec 7. The Answer must be verified and filed within 5
days (not 15 days which is the regular period).
What is the rule on pre-trial?
See Sec 9. The notice of mandatory pre-trial shall be served
separately on both the parties and their respective counsels.
Note that pre-trial is mandatory.
What is the effect of failure to appear at the pre-trial?
See Sec 11. If PETITIONER fails to personally appear, the
case shall be dismissed, UNLESS his counsel or duly
authorized representative appears in court and provides a
valid excuse for his non-appearance.
If the RESPNDENT files his answer but fails to appear, the
petitioner shall be allowed to present evidence ex-parte.
What is the provisional order awarding custody?
After:
1. An answer is filed or
2. The period to file an answer has expired
The court may issue a provisional order awarding custody.
As far as practicable, the preference shall be:
 Both parents jointly
 Either parent (taking into account all considerations,
especially the preference of a minor older than 7,
unless the parent chosen is unfit)
 Grandparent. If there are several, the one chosen by
the minor above 7, unless unfit
 The eldest older brother or sister over 21, unless unfit
or disqualified
 Any other person or institution deemed suitable by
the court
What is the “tender years” rule?
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Art 2173 of the NCC provides that no child under 7 shall be
separated from the mother unless the court finds good
reason.
What are the exceptions to the maternal preference
rule?
If the mother is unfit or disqualified.
What are the factors to be considered in determining
who should have custody?
See Sec 14. Best interests of the child.
What is the rule on temporary visitation rights?
See Sec 15. In the order awarding provisional custody, the
court shall award visitation rights to the parent who is not
awarded custody, unless this parent is unfit or disqualified.
When is a hold departure order effective?
The moment the petition for HC is FILED, even if there is no
issuance of an actual HDO yet. The HDO is effective even
before the service of summons. See Sec 16.
May an appeal be filed?
Yes! See Sec 19. An appeal will not be allowed unless there
was a prior MR or MNT. A notice of appeal is allowed within
15 days from the denial of the MR or MNT.
NOTE: under this provision the period to appeal is only 15
days. Also note that the mode of appeal is an ordinary
appeal.
What is rule on the petition for writ of habeas corpus?
See Sec 20. The petition shall be verified and filed in the FC
where petitioner resides or where the minor may be found. It
can be enforced in the judicial region of the FC. Petition can
also be filed in the SC and CA, and in this case, can be
enforced anywhere in the Philippines.
NOTE: this rule was revised because in one case, the
respondent kept bringing the child to a different place, so
they had to keep filing for HC because it could not be
enforced since the new place was outside the judicial region
of the FC that issued the writ. Now the rule is that custody
can be filed in the CA or SC so they can be enforced
nationwide.
WRIT OF AMPARO
What is the writ of amparo?
The petition for a writ of amparo is a remedy available to any
person whose right to life, liberty and security is violated or
threatened with violation by an unlawful act or omission of a
public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof.
Who may file?
First and foremost, the aggrieved party. In default of the
aggrieved party there is an order of preference. The
immediate family (spouse, children and parents of the
aggrieved party) can then file. Note that the immediate family
can only file the petition in DEFAULT of the aggrieved party.
In default of both of these, any concerned NGO may file.
Why does the rule give preference over who may file?
There may be a case where the family does not want to go
to court because their own lives are threatened.
Against who may the writ be enforced?
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Public officers, and some private individuals or entities. This
is because the private individuals themselves may be
responsible. Entities refer to artificial persons. e.g. NPA
What are extra-legal killings?
Without legal safeguards or judicial proceedings. Such as
summary and arbitrary executions.
What are enforced disappearances?
The arrest detention or abduction of an individual by a
government agency or private person to silence the
individual.
At what time can you file?
Any time of the day, any day of the week, whether it is a
holiday or not.
Where do you file?
In the RTC where any threat, act or omission was
committed. This is not needed for the SB, CA or SC. SB was
included because they perceived that most of the petitions
would be against public officers.
What is the requirement for the return to the writ?
See Sec 9.
 Should be filed within 5 working days after service of
the writ
 Should be filed with affidavits
 The period to file a return cannot be extended except
on highly meritorious grounds
 Paragraph a is required so you know who you are
looking for.
 Paragraph c is your allegation that is your cause of
action.
 Paragraph d refers to the Commission on Human
Rights who should conduct the investigation, requiring
the standard of extraordinary diligence.
 Paragraph e is to prevent fishing expeditions on the
part of petitioners. You have to show that you exerted
effort to look for the person.
What is the manner of service?
The rule is PERSONAL service without prejudice to
substitute service.
What is the rule on defenses not pleaded?
See Sec 10. Defenses not pleaded are deemed waived.
What are the prohibited pleadings and motions?
See Sec. 11.
1. Motion to dismiss;
2. Motion for extension of time to file opposition, affidavit,
position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or
interim relief orders; and
12. Petition for certiorari, mandamus or prohibition against
any interlocutory order.
NOTE: the prohibition on Motion to Dismiss is ABSOLUTE
What is the preference given to criminal actions?
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Read Sec 13
SEC. 13. Summary Hearing. The hearing on the petition
shall be summary. However, the court, justice or judge may
call for a preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations and
admissions from the parties.
The hearing shall be from day to day until completed and
given the same priority as petitions for habeas corpus.
NOTE: This amends RULE 20, because it gives preference
to amparo proceedings. See the last paragraph.
What are these interim reliefs?
Temporary Protection Order, Inspection Order, Production
Order, Witness Protection Order
Which of the reliefs may the court effect motu propio?
Temporary Protection Order and Witness Protection Order
(because there is no need for a hearing)
Why are they required to have hearings?
To prevent fishing expeditions!
Can respondent avail of these interim reliefs? Why?
Yes, but only the Inspection Order and the Production Order.
This is because it’s possible that the person is located
elsewhere.
Read Sec 16
SEC. 16. Contempt. The court, justice or judge may order
the respondent who refuses to make a return, or who makes
a false return, or any person who otherwise disobeys or
resists a lawful process or order of the court to be punished
for contempt. The contemnor may be imprisoned or imposed
a fine.
NOTE: there is a provision on contempt even though this is
automatic in courts because this proceeding is a summary
proceeding in nature, and courts sometimes exercise only
limited jurisdiction.
Read Sec 18
SEC. 18. Judgment. The court shall render judgment within
ten (10) days from the time the petition is submitted for
decision. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the
writ and such reliefs as may be proper and appropriate;
otherwise, the privilege shall be denied
NOTE: this is a deviation from the ordinary rules which
allows 90 days for a decision
NOTE: Rule 45 questions of law or fact or both, within 5
working days. This is a deviation from the ordinary rules.
What is this archiving and revival of cases?
If the court cannot proceed, the court should NOT dismiss
the case, it should archive the case. After 2 years lapse and
no action is taken, then the court can dismiss the case.
During the 2 years, the action can be revived.
What is the rule on preclusion of action?
The Writ of Amparo is simply an inquiry to see who is
responsible. The court does not make a determination of
liability. After amparo, if responsibilities can be pinpointed,
then it is without prejudice to the filing of civil, criminal or
administrative cases. The court does not determine liability in
amparo proceedings to allow for speedy resolution, because
in these cases, there is an actual or immediate threat.
11
See Sec 22. When a criminal action has been commenced,
no separate petition for the writ shall be filed. The reliefs
under the writ shall be available by motion in the criminal
case.
What is the rule on consolidation?
See Sec 23. If a petition for the writ is filed, then a criminal
action is subsequently filed, the petition for the writ shall be
consolidated with the criminal action. When a criminal action
and a separate civil action are filed subsequent to a petition
for a writ of amparo, the writ shall be consolidated with the
criminal action. After consolidation, the procedure under this
Rule shall continue to apply to the disposition of the reliefs in
the petition.
What is meant by the term “suppletorily”?
In case there is a conflict between the ordinary rules and the
writ of amparo, the writ of amparo will prevail.
What is the quantum of proof required?
Substantial evidence.
WRIT OF HABEAS DATA
What is the writ of habeas data?
See Sec 1. The writ of habeas data is a remedy available to
any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and
correspondence of the aggrieved party.
Compare writ of HD w/ writ of amparo.
Basic distinction: the subject matter. In amparo, there is an
actual/incipient threat on life or security. HD pertains to data,
and it’s objective is for the documents to be destroyed.
When is hearing possible in chambers?
If the matter concerns national security or state secrets or
are privileged in character
How is the proceeding conducted?
It is summary in nature
The other provisions are same as writ of amparo.
CHANGE OF NAME
Rule 103 RA 9048
Change of name Correction of clerical or
typohgraphical errors
Judicial Extrajudicia(local civil
registrar or consul general if
non-resident); administrative
correction
Also includes change of Includes change of first
surname name or nickname
The SC held that with respect to the correction of first names
or nicknames, primary jurisdiction lies with the civil registrar.
Adm. Matter No. 06-7-414-RTC, October 19, 2007:
“..local civil registrar has primary, not exclusive, jurisdiction
over such petitions for correction of clerical errors and
change of first name or nickname, with R.A. No. 9048
prescribing the procedure that the petitioner and local civil
registrar should follow”
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When a petition for change of name or correction is filed
with the court, should the court dismiss the petition?
The court should not dismiss, but should continue to hear,
not withstanding RA 9048. This law gives the civil registrar
primary, but not exclusive jurisdiction. Note that if the
petition is filed w/ the court, the court should follow the
procedure provided in the Rules of Court, not in RA 9048.
READ:
Silverio v. Republic G.R.No. 174689
Republic v. Jennifer Cagandahan G.R.No. 166676
Republic v. Valencia 225 Phil 408 (198) G.R.No. L-32181
Republic v. Kho G.R.No. 170340
Although the procedure for change of name is summary in
nature, the proceeding may also be adversarial. If the
petition is filed to correct and delete the date and place of
marriage, this will change status of child, so this cannot be
done in a summary proceeding. The proceeding can be
converted to an adversarial one if all the interested parties in
the petition are notified and if they are heard. The deletion of
the place and date of marriage of the child’s parents will
affect the child’s successional rights. The Solicitor General
and the grandparents must be notified. The grandparents
should be notified because the child will become an heir of
the grandparents. As such, they are entitled to be heard.
ABSENTEES
What is the purpose of this rule?
To have a representative of the absentee appointed so that
he/she may administer the properties of the absentee. If the
absentee has no properties, the petition is unnecessary.
NOTE: Under this rule, no one has died yet. This is
preparatory. If the person is already dead then you go to
settlement of estates.
When do you file a petition for absence?
When a person disappears without leaving a representative
to administer his property
Where is it filed?
In the RTC where the absentee resided before the
disappearance
Who may file the petition?
NOTE: THERE IS NO ORDER OF PREFERENCE!!
See Rule 107 Section 2.
 The spouse present
 The heirs instituted in a will who may present an
authentic copy
 Intestate heirs
 Those who have over the property of the absentee,
some right subordinated to the condition of his death
What is an example of a right subordinated?
Creditors
Who may oppose?
Anyone who has interest to oppose. The oppositor must
state in writing the grounds for his opposition. He must
serve a copy of this on the petitioner and other interested
parties on or before the hearing. See Sec 5.
When do you file the petition for declaration?
If the person did not leave an agent to administer his
properties, 2 to 7 years after the last new received. After 7
12
years, or after 4 years under extraordinary circumstances, he
may be declared presumptively dead. If the person left an
administrator, the petition may be filed 5 years from the last
news received.
NOTE: The provisions in the Family Code are for purposes
of remarriage. The court cannot declare a person dead, only
doctors can do this. The court will merely declare that a
person is presumed dead.
Read Rule 39 section 47a
(a) In case of a judgment or final order against a specific
thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status
of a particular person or his relationship to another, the
judgment or final order is conclusive upon the title to the
thing, the will or administration, or the condition, status or
relationship of the person; however, the probate of a will or
granting of letters of administration shall only be prima facie
evidence of the death of the testator or intestate;
NOTE: There is a need for a separate proceeding.
Read: In Re: Nicolai Szatraw G.R.No. L-1780
APPEALS IN SPECIAL PROCEEDINGS
What is the rule on orders or judgments from which
appeals may be taken?
See Rule 109 Sec 1.
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased
person, or the distributive share of the estate to which
such person is entitled;
(c) Allows or disallows, in whole or in part, any claim
against the estate of a deceased person, or any claim
presented on behalf of the estate in offset to a claim
against it;
(d) Settles the account of an executor, administrator,
trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement
of the estate of a deceased person, or the administration
of a trustee or guardian, a final determination in the lower
court of the rights of the party appealing, except that no
appeal shall be allowed from the appointment of a special
administrator; and
(f) Is the final order or judgment rendered in the case, and
affects the substantial rights of the person appealing
unless it be an order granting or denying a motion for a
new trial or for reconsideration.
NOTE: This rule covers trustees and guardians. In the
course of the proceedings as in guardianship, there are
incidents w/c are immediately appealable.
What is the period to appeal?
30 days. See Rule 41 Sec 3
Why are multiple appeals allowed?
These are special cases. In these cases there are several
incidents and you cannot have the proceedings suspended
for a long time because an incident was appealed. For
example, estate settlement is the first stage is the allowance
of a will. This has to be appealed immediately within 30
days. This appeal does NOT suspend the probate
proceedings. Each stage in the proceedings is a final
adjudication, so multiple appeals are allowed. You cannot
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wait until the end distribution and partition are completed
because by then, the other incidents will have lapsed.
What is a record on appeal?
See Rule 41 Sec 6
It is a compilation of all the pleadings, evidence and
transcript presented in the original court w/ respect to that
particular incident. Unlike in an ordinary appeal where the
clerk of court should transmit everything. Obviously it is not
possible to transmit all the records in cases where multiple
appeals are allowed, otherwise the proceeding will
necessarily be stopped pending the appeal. This is why
there is a record on appeal.
NOTE: The record on appeal must be approved by the court
If you cannot complete the record on appeal w/in the 30 day
period, you can ask for an extension. What is extended is the
filing, NOT the notice of the filing. You have to give the court
notice within 30 days so that the court can review the record.
You can only file after the court gives its approval, and
sometimes the court does not decide within 30 days, and
that’s why you can ask for an extension to file the record on
appeal. If the court doesn’t approve the notice to file a
record on appeal, you don’t file the record on appeal.
NOTE: Multiple appeals are not limited to special
proceedings, can also be allowed:
Rule 36 Sec 4
Rule 39 Sec 4
Rule 69 Sec 2
What is advanced distribution?
See Rule 109 Sec 2.
Sec 2. Notwithstanding a pending controversy or appeal in
proceedings to settle the estate of a decedent, the ct may,
in its discretion and upon such terms as it may deem
proper and just, permit that such part of the estate as may
not be affected by the controversy or appeal be distributed
among the heirs or legatees upon compliance with the
conditions set forth in R. 90 of these rules.
Ideally distribution only happens when there are no more
debts. But there are certain instances that notwithstanding
certain issues that are still pending (contingent claims),
distribution may be effected as long as there is a bond and
as long as it will not effect matters finally adjudicated and
which will entitle heirs to receive property from the estate.
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