8

SPECIAL PROCEEDINGS (n) Cancellation or

correction of entries in the civil
(Part IX of IX)
registry.
Sec. 2. Applicability of rules
I. Special Proceedings of civil actions. In the absence
A. Subject Matter and of special provisions, the rules
provided for in ordinary actions
Applicability of shall be, as far as practicable,
General Rules (Rule applicable in special
72) proceedings.
Sec. 1. Subject matter of Special proceedings are special
special proceedings. Rules of because they are not adversarial.
special proceedings are
A special proceeding is a remedy
provided for in the following
to establish the status or right of a
cases:
party or a particular fact. An
(a) Settlement of estate of ordinary action is one by which
deceased persons; one party prosecutes another for
(b) Escheat; the enforcement or protection of a
right or the prevention or redress
(c) Guardianship and of a wrong. (§§1 & 2 of Rule 2)
custody of children;
B.Settlement of Estate
(d) Trustees;
of Deceased Persons
(e) Adoption;
1. Summary
(f) Rescission and revocation Settlement of
of adoption;
Estates
(g) Hospitalization of insane
persons; a. Rule 74
(h) Habeas corpus; Sec. 1. Extrajudicial
settlement by agreement
(i) Change of name; between heirs. If the decedent
(j) Voluntary dissolution of left no will and no debts and
corporations; the heirs are all of age, or the
minors are represented by their
(k) Judicial approval of
judicial or legal representatives
voluntary recognition of minor
duly authorized for the
natural children;
purpose, the parties may,
(l) Constitution of family without securing letters of
home; administration, divide the
(m) Declaration of absence estate among themselves as
and death; they see fit by means of a
public instrument filed in the
office of the register of deeds,
and should they disagree, they

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may do so in an ordinary action participated therein or had no

of partition. If there is only one notice thereof.
heir, he may adjudicate to Modes of Settlement of Estate
himself the entire estate by
means of an affidavit filed in .1 Extrajudicial Modes
the office of the register of .a Agreement of the heirs (Rule
deeds. The parties to an 74, §1)
extrajudicial settlement,
whether by public instrument .b Affidavit of self-adjudication
or by stipulation in a pending (Rule 74, §1)
action for partition, or the sole .2 Judicial Modes
heir who adjudicates the entire
.a Partition (Rule 74 §1
estate to himself by means of
“ordinary action of
an affidavit shall file,
partition”)
simultaneously with and as a
condition precedent to the .b Stipulation in a pending
filing of the public instrument, action (Rule 74, §1)
or stipulation in the action for .c Interventions in a pending
partition, or of the affidavit in action (Rule 74, §1)
the office of the register of
deeds, a bond with the said .d Summary settlement of
register of deeds, in an amount estates of small value (Rule
equivalent to the value of the 74, §2)
personal property involved as .e Probate (Petition for Letters)
certified to under oath by the
)1 Testate
parties concerned and
conditioned upon the payment )2 Intestate
of any just claim that may be If there is a will and there are no
filed under section 4 of this debts, a probate is mandatory.
rule. It shall be presumed that
the decedent left no debts if no A petition for letters can’t be
creditor files a petition for opposed simply because it is
letters of administration within expensive.
two (2) years after the death of Advantages of extra-judicial
the decedent. settlement
The fact of the extrajudicial .1 less expensive
settlement or administration
shall be published in a .2 faster
newspaper of general
circulation in the manner
Advantages of judicial settlement
provided in the next succeeding
section; but no extrajudicial .1 res judicata
settlement shall be binding .2 availability of remedies (Rule
upon any person who has not 87)

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.a §6: Proceedings when distributee shall contribute in the

property concealed, payment thereof, and may issue
execution, if circumstances
embezzled, or fraudulently require, against the bond provided
conveyed in the preceding section or against
the real estate belonging to the
.b §7: Persons entrusted with deceased, or both. Such bond and
estate compelled to render such real estate shall remain
an account charged with a liability to
creditors, heirs, or other persons
.c §8: Embezzlement before for the full period of two (2) years
letters issued after such distribution,
notwithstanding any transfers of
.d §9: Property fraudulently real estate that may have been
conveyed by deceased may made.
be recovered. When
executor or administrator .2 File for letters of administration
must bring action. .3 Arts. 1097 – 1105, NCC:
Modes of Attacking an Grounds for rescinding a
Extrajudicial Settlement partition (within 4 years from
the time the partition was
.1 Rule 74, §4: Claim of an heir, made)
creditor, or other person (within
Art. 1097. A partition may be
2 years after distribution) rescinded or annulled for the same
Sec. 4. Liability of distributees and causes as contracts. (1073a)
estate. If it shall appear at any Art. 1098. A partition, judicial or
time within two (2) years after the extra-judicial, may also be
settlement and distribution of an rescinded on account of lesion,
estate in accordance with the when any one of the co-heirs
provisions of either of the first two received things whose value is
sections of this rule, that an heir or less, by at least one-fourth, than
other person has been unduly the share to which he is entitled,
deprived of his lawful participation considering the value of the things
in the estate, such heir or such at the time they were adjudicated.
other person may compel the (1074a)
settlement of the estate in the
courts in the manner hereinafter Art. 1099. The partition made by
provided for the purpose of the testator cannot be impugned
satisfying such lawful on the ground of lesion, except
participation. And if within the when the legitime of the
same time of two (2) years, it shall compulsory heirs is thereby
appear that there are debts prejudiced, or when it appears or
outstanding against the estate may reasonably be presumed, that
which have not been paid, or that the intention of the testator was
an heir or other person has been otherwise. (1075)
unduly deprived of his lawful Art. 1100. The action for rescission
participation payable in money, the on account of lesion shall
court having jurisdiction of the prescribe after four years from the
estate may, by order for that time the partition was made.
purpose, after hearing, settle the (1076)
amount of such debts or lawful
participation and order how much Art. 1101. The heir who is sued
and in what manner each shall have the option of

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indemnifying the plaintiff for the .2 Rule 42, §1: Appeal (a total of
loss, or consenting to a new 30 days; There is an initial
partition.
period of 15 days. Under Rule
Indemnity may be made by 42 §1, a motion for extension
payment in cash or by the delivery
may grant up to 15 days of
of a thing of the same kind and
quality as that awarded to the extension.)
plaintiff. .3 Rule 38: Relief from
If a new partition is made, it shall Judgments, Orders or Other
affect neither those who have not Proceedings (within 60 days
been prejudiced nor those have not
after the petitioner learns of the
received more than their just
share. (1077a) judgment, final order or other
proceeding to be set aside, and
Art. 1102. An heir who has
alienated the whole or a
not more than 6 months after
considerable part of the real such judgment or final order
property adjudicated to him cannot was entered, or such
maintain an action for rescission proceeding was taken)
on the ground of lesion, but he
shall have a right to be .4 Rule 65: Certiorari (60 days)
indemnified in cash. (1078a)
.5 Rule 47: Annulment of
Art. 1103. The omission of one or Judgments or Final Orders and
more objects or securities of the
Resolutions
inheritance shall not cause the
rescission of the partition on the .a Extrinsic fraud: within 4
ground of lesion, but the partition years from its discovery
shall be completed by the
distribution of the objects or .b Lack of jurisdiction: before
securities which have been it is barred by laches or
omitted. (1079a)
estoppel
Art. 1104. A partition made with
preterition of any of the Requisites for a valid extra-judicial
compulsory heirs shall not be partition
rescinded, unless it be proved that
there was bad faith or fraud on the .1 decedent left no will and no
part of the other persons debts
interested; but the latter shall be
proportionately obliged to pay to
.2 the heirs are all of age, or
the person omitted the share represented by their authorized
which belongs to him. (1080) judicial or legal representatives
Art. 1105. A partition which .3 Public instrument
includes a person believed to be an
heir, but who is not, shall be void .4 Publication
only with respect to such person.
(1081a) .5 Bond, in case personal property
is to be distributed, conditioned
Modes of Attacking a Judicial for the payment of any just
Settlement claim of an heir or any other
.1 Rule 37: Motion for New Trial person unduly deprived of his
or Reconsideration (15 days) lawful participation in the
estate. (Rule 74, §3)

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.6 Registration with the RoD, in
case of real property
Requisites for settlement by self-
adjudication
.1 only one heir
.2 affidavit filed with the RoD
No extrajudicial settlement shall
be binding upon any person who
has not participated therein or had
no notice thereof.
Sec. 2. Summary settlement
of estates of small value.
Whenever the gross value of
the estate of a deceased
person, whether he died testate
or intestate, does not exceed
ten thousand pesos, and that
fact is made to appear to the
Court of First Instance having
jurisdiction of the estate by the
petition of an interested person
and upon hearing, which shall
be held not less than (1) month
nor more than three (3) months
from the date of the last
publication of a notice which
shall be published once a week
for three (3) consecutive weeks
in a newspaper of general
circulation in the province, and
after such other notice to
interested persons as the court
may direct, the court may
proceed summarily, without the
appointment of an executor or
administrator, and without
delay, to grant, if proper,
allowance of the will, if any
there be, to determine who are
the persons legally entitled to
participate in the estate, and to
apportion and divide it among
them after the payment of such
Remedial Law Reviewer
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debts of the estate as the court
shall then find to be due; and
such persons, in their own
right, if they are of lawful age
and legal capacity, or by their
guardians or trustees legally
appointed and qualified, if
otherwise, shall thereupon be
entitled to receive and enter
into the possession of the
portions of the estate so
awarded to them respectively.
The court shall make such
order as may be just respecting
the costs of the proceedings,
and all orders and judgments
made or rendered in the course
thereof shall be recorded in the
office of the clerk, and the
order of partition or award, if it
involves real estate, shall be
recorded in the proper
register's office.
Requisites for Summary settlement
of estates of small value (whether
testate or intestate)
.1 gross value of the estate does
not exceed P10,000
.2 that fact is made to appear to
the RTC having jurisdiction of
the estate by the petition of an
interested person
.3 publication of a notice which
once a week for 3 consecutive
weeks in a newspaper of
general circulation in the
province
.4 notice to interested persons as
the court may direct
.5 upon hearing, which shall be
held not less 1 month nor more
than 3 months from the date of
the last publication
Mark de Leon, JD 2001
 13

The advantage of summary the estate which have not been

settlement of estate is not executor paid, or that an heir or other
or administrator is appointed. person has been unduly
Sec. 3. Bond to be filed by deprived of his lawful
distributees. The court, before participation payable in money,
allowing a partition in the court having jurisdiction of
accordance with the provisions the estate may, by order for
of the preceding section, may that purpose, after hearing,
require the distributees, if settle the amount of such debts
property other than real is to or lawful participation and
be distributed, to file a bond in order how much and in what
an amount to be fixed by court, manner each distributee shall
conditioned for the payment of contribute in the payment
any just claim which may be thereof, and may issue
filed under the next succeeding execution, if circumstances
section. require, against the bond
provided in the preceding
If personal property is to be section or against the real
distributed, the court may require estate belonging to the
the distributees to file a bond, deceased, or both. Such bond
conditioned for the payment of any and such real estate shall
just claim which may be filed remain charged with a liability
within 2 years from settlement of to creditors, heirs, or other
the estate. persons for the full period of
Sec. 4. Liability of two (2) years after such
distributees and estate. If it distribution, notwithstanding
shall appear at any time within any transfers of real estate that
two (2) years after the may have been made.
settlement and distribution of Sec. 5. Period for claim of
an estate in accordance with minor or incapacitated person.
the provisions of either of the If on the date of the expiration
first two sections of this rule, of the period of two (2) years
that an heir or other person prescribed in the preceding
has been unduly deprived of his section the person authorized
lawful participation in the to file a claim is a minor or
estate, such heir or such other mentally incapacitated, or is in
person may compel the prison or outside the
settlement of the estate in the Philippines, he may present his
courts in the manner claim within one (1) year after
hereinafter provided for the such disability is removed.
purpose of satisfying such
lawful participation. And if Remedies of excluded heir/creditor
within the same time of two (2) in an extrajudicial partition
years, it shall appear that there .1 Within 2 years from distribution
are debts outstanding against
.a claim against the bond

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.b file for letters of NOTE: The 2-year periods in Rule

administration 74, §§1 and 4 are different. Rule
74, §1’s “two year period from
.2 Rescind the partition under the
death of the decedent” refers to a
NCC (within 4 years from the
presumption of a ‘no debt’
time the partition was made)
situation in the absence of any
The bond and real estate remains claim by a creditor within such
charged with a liability to period. On the other hand, Rule
creditors, heirs, or other persons 74, §4’s “two years from the
for 2 years after the distribution, settlement of the estate” refers to
despite any transfers that may the period allowed to a creditor
have been made. and omitted heir to file a claim
Instances when the probate court against the estate.
may issue writs of execution Exceptions: If on the date of the
.1 In the exercise of probate expiration of 2 years from
jurisdiction, RTC may issue distribution, the claimant is
warrants and processes .1 minor
necessary to carry into effect
.2 mentally incapacitated
their orders and judgments.
(Rule 73 §3) .3 in prison or
.2 If within 2 years after the .4 outside the Philippines,
summary settlement and he may present his claim within 1
distribution of an estate, it shall year after such disability is
appear that there are debts removed.
outstanding against the estate
which have not been paid, or b. Cases
that a person has been unduly
Arcillas v. Montejo, 26 SCRA 197
deprived of his lawful
(1968) The fact that an intestate
participation payable in money,
estate has no debts does not
the court having jurisdiction of
preclude from instituting
the estate may, by order for that
administration proceedings.
purpose, after hearing, settle
Extrajudicial settlement of estate
the amount of such debts or
is merely discretionary on the part
lawful participation and order
of the heirs. Delay and expenses
how much and in what manner
are not grounds to deny a petition
each distributee shall
for administration. Probate still
contribute in the payment
can be useful because the truth or
thereof, and may issue
veracity of claims relating to other
execution, if circumstances
properties can be more adequately
require, against the bond or
ascertained in administration
against the real estate
proceedings.
belonging to the deceased, or
both. (Rule 74 §4) De Garces v. Broce, 23 SCRA 612
(1968) The effectivity between the
heirs of an extrajudicial settlement

Remedial Law Reviewer Mark de Leon, JD 2001


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 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 property after 2 year period can
preterited heir. However, such a
motion must be supported by
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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 desitnation of that
part of the land which belongs to
each tenant in 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
not be questioned.
Mark de Leon, JD 2001

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.
2. Production of Will.
Allowance of Will
Necessary
a. Rule 75
Sec. 1. Allowances necessary.
Conclusive as to execution. No
will shall pass either real or
personal estate unless it is
proved and allowed in the
proper court. Subject to the
right of appeal, such allowance
of the will shall be conclusive
as to its due execution.
Probate of a will is mandatory. An
extrajudicial partition or
settlement is legally possible only
if there was no will.
However, a project of partition
which does not follow the will is
admissible, based on the principles
that “future inheritance cannot be
waived” and “inheritance passes at
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decedent’s death.” The heirs may
waive the benefits given them.
Sec. 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.
Sec. 3. Executor to present
will and accept or refuse trust.
A person named as executor in
a will shall, within twenty (20)
days after he knows of the
death of the testator, or within
twenty (20) days after knows
that he is named executor if he
obtained such knowledge after
the death of the testator,
present such will to the court
having jurisdiction, unless the
will has reached the court in
any other manner, and shall,
within such period, signify to
the court in writing his
acceptance of the trust or his
refusal to accept it.
Sec. 4. Custodian and
executor subject to fine for
neglect. A person who neglects
any of the duties required in
the two last preceding sections
without excuse satisfactory to
the court shall be fined not
exceeding two thousand pesos.
Sec. 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
Mark de Leon, JD 2001

committed to prison and there
kept until he delivers the will.
b. Cases
Palacios v. Catimbang Palacios,
106 Phil. 739 (1959) Where the
testator himself petitioned for
probate, the court can not deny
probate of a will on the ground of
preterition.
Note that the will was allowed in
Palacios because it was the
testator himself who petitioned for
probate and can therefore
subsequently institute the
preterited heir. In Maninang, the
will was allowed probate because
there was an issue of defective
disinheritance or preterition. In
Acain, preterition was not in
dispute, hence, the will was denied
probate.
Guevarra v. Guevarra, 98 Phil. 249
(1956) A petition to allow a will
does not prescribe.
Mercado v. Santos, 66 Phil. 215
(1938) Probate renders conclusive
the due execution of the will. A
subsequent prosecution for forgery
of the testator’s signature of a
probated will will not prosper. The
remedy is file an appeal,
declaratory relief (Rule 63) or
special civil action for certiorari
(Rule 65).
Manahan v. Manahan, 58 Phil. 448
(1933) An intestate non-
compulsory uninstituted heir is not
entitled to be notified of the
probate proceedings. Probate is
conclusive as to the due execution
of the will.
Fernandez v. Dimagiba, 21 SCRA
428 (1967) Allowance of a will to
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probate if a final and appealable
judgment. The opponent should
not await resolution of other issues
before appealing the decision.
Failure to appeal renders the
probate as conclusive as to the due
execution of the will. The issue of
revocation is irrelevant in the
probate proceedings. Only a total
and absolute revocation of the will
itself can preclude probate.
Probate of a will is mandatory,
hence it can not be precluded by a
the fact that the proponent was in
estoppel.
Riera v. Palmori, 40 Phil. 105
(1919) To question allowance of a
will via relief from judgment (Rule
38, 1997 Rules of Civil Procedure)
there must have been FAME
committed and the petition should
be filed within 60 days from
discovery mut not more than 6
months from entry of judgment.
In re: Johnson, 39 Phil. 156 (1918)
To question allowance of a will via
relief from judgment (Rule 38,
1997 Rules of Civil Procedure)
there must have been FAME
committed and the petition should
be filed within 60 days from
discovery mut not more than 6
months from entry of judgment.
U.S. v. Chiu Guimco, 36 Phil. 917
(1917) The penalty imposable on a
person who fails to produce a will
depends on the manner in which
the court is acting. If it is acting as
a criminal court, then it can
impose only a fine. If it is acting as
a probate court, then it can impose
only imprisonment.
3. Initiation of
Proceedings
Mark de Leon, JD 2001

a. Whose estate may
be settled
does not have to be a resident;
does not have to be a citizen (Rule
73 §1)
b. Where petition
may be filed
Jurisdiction of the RTC has
exclusive original jurisdiction over
matters of probate where the gross
value of the estate exceeds
.1 P200,000 outside Metro Manila
(P300,000 by 2004)
.2 P400,000 in Metro Manila
1) Rule 73
Sec. 1. Where estate of
deceased person settled. If the
decedent is an inhabitant of the
Philippines at the time of his
death, whether a citizen or an
alien, his will shall be proved,
or letters of administration
granted, and his estate settled,
in the Court of First Instance in
the province in which he
resides at the time of his death,
and if he is an inhabitant of a
foreign country, the Court of
First Instance of any province
in which he had estate. The
court first taking cognizance of
the settlement of the estate of
a decedent, shall exercise
jurisdiction to the exclusion of
all other courts. The
jurisdiction assumed by a shall be liquidated in the
court, so far as it depends on
the place of residence of the
decedent, or of the location of
his estate, shall not be
contested in a suit or
proceeding, except in an appeal
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from that court, in the original
case, or when the want of
jurisdiction appears on the
record.
Venue: If the decedent, at the time
of his death, is a
.1 Philippine inhabitant – RTC in
the province in which he resides
at the time of his death, and
.2 Foreign inhabitant
.a RTC of any province in which
he had estate
.b The court first taking
cognizance shall exercise
jurisdiction to the exclusion
of all other courts.
A determination of venue may be
questioned only
.1 in an appeal (of the main case,
not just the issue of venue [Rule
109, Rule 63], or
.2 when the want of jurisdiction
appears on record.
Sec. 2. Where estate settled
upon dissolution of marriage.
When the marriage is dissolved
by the death of the husband or
wife, the community property
shall be inventoried,
administered, and liquidated,
and the debts thereof paid, in
the testate or intestate
proceedings of the deceased
spouse. If both spouses have
died, the conjugal partnership
testate or intestate proceedings
of either.
The property regime is liquidated
in the probate proceedings of the
deceased spouse. If both spouses
Mark de Leon, JD 2001

have died, it can be liquidated the
probate proceedings of either.
Sec. 3. Process. In the
exercise of probate jurisdiction,
Court of First Instance may
issue warrants and processes
necessary to compel the
attendance of witnesses or to
carry into effect their orders
and judgments, and all other
powers granted them by law. If
a person does not perform an
order of judgment rendered by
a court in the exercise of its
probate jurisdiction, it may
issue a warrant for the
apprehension and
imprisonment of such person
until he performs such order or
judgment, or is released.
Powers of the probate court
.1 issue warrants and processes
necessary to compel the
attendance of witnesses or to
carry into effect their orders
an\d judgments, and all other
powers granted them by law
.2 If a person defies a probate
order, it may issue a warrant for
the apprehension and
imprisonment of such person
until he performs such order or
judgment, or is released.
Sec. 4. Presumption of
death. For purposes of
settlement of his estate, a
person shall be presumed dead
if absent and unheard from for
the periods fixed in the Civil
Code. But if such person proves
to be alive, he shall be entitled
to the balance of his estate
after payment of all his debts.
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The balance may be recovered
by motion in the same
proceeding.
cf Arts. 390-392 NCC, and Rule
131 Sec. 3 (w) RoC
Art. 390. After an absence of seven
years, it being unknown whether
or not the absentee still lives, he
shall be presumed dead for all
purposes, except for those of
succession.
The absentee shall not be
presumed dead for the purpose of
opening his succession till after an
absence of ten years. If he
disappeared after the age of
seventy-five years, an absence of
five years shall be sufficient in
order that his succession may be
opened. (n)
Art. 391. The following shall be
presumed dead for all purposes,
including the division of the estate
among the heirs:
(1) A person on board a vessel lost
during a sea voyage, or an
aeroplane which is missing, who
has not been heard of for four
years since the loss of the vessel or
aeroplane;
(2) A person in the armed forces
who has taken part in war, and has
been missing for four years;
(3) A person who has been in
danger of death under other
circumstances and his existence
has not been known for four years.
(n)
Rule 131, Sec. 3. xxx (w) That after
an absence of seven years, it being
unknown whether or not the
absentee still lives, he is
considered dead for all purposes,
except for those of succession.
The absentee shall not be
considered dead for the purposeof
opening his succession till after an
absence of ten years. If he
disappeared after the age of
Mark de Leon, JD 2001

seventy-five years, an absence of
five years shall be sufficient in
order that his succession may be
opened.
The following shall be considered
dead for all purposes including the
division of the estate among the
heirs:
(1) A person on board a vessel lost
during a sea voyage, or an aircraft
which is missing, who has not been
heard of for four years since the
loss of the vessel or aircraft;
(2) A member of the armed forces
who has taken part in armed
hostilities, and has been missing
for four years;
(3) A person who has been in
danger of death under other
circumstances and whose
existence has not been known for
four years;
(4) If a married person has been
absent for four consecutive years,
the spouse present may contract a
subsequent marriage if he or she
has a well-founded belief that the
absent spouse is already dead. In
case of disappearance, where
there is danger of death under the
circumstances hereinabove
provided, an absence of only two
years shall be sufficient for the
purpose of contracting a Cuenco v. Court of Appeals, 53
subsequent marriage. However, in
any case, before marrying again,
the spouse present must institute a
summary proceeding as provided
in the Family Code and in the rules
for a declaration of presumptive
death of the absentee, without
prejudice to the effect of
reappearance of the absent
spouse.
If the absentee proves to be alive,
he shall be entitled to the balance
of his estate after payment of all
his debts. The balance may be
recovered by motion in the same
proceeding. cf Art. 392 NCC
Remedial Law Reviewer
20
Art. 392. If the absentee appears,
or without appearing his existence
is proved, he shall recover his
property in the condition in which
it may be found, and the price of
any property that may have been
alienated or the property acquired
therewith; but he cannot claim
either fruits or rents. (194)
2) Cases
In re Kaw Singco, 74 Phil. 238
(1943) Residence of deceased in
probate proceedings is a matter of
venue and not of jurisdiction over
the subject matter. All RTCs have
jurisdiction over probate cases, but
not all ave the proper venue. The
SC had to resolve this issue
because it can take cognizance of
the case only if the court’s
jurisdiction, not venue, is being
questioned.
Garcia Fule v. Court of Appeals, 74
SCRA 189 (1976) Residence should
be understood in its popular sense
as the personal, actual or physical
presence in a place and actual stay
thereat. It is not to be understood
as domicile or legal residence.
SCRA 360 (1973) 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. Questions on venue are
resolved by the court taking first
cognizance of the case. Such court,
may also decline to take
cognizance of the petition and hold
the petition before it in abeyance,
and instead defer to the second
court. Furthermore, probate
proceedings take precedence over
Mark de Leon, JD 2001

intestate proceedings. Lastly, the
Rules require that the petition for
allowance of a will must show the
jurisdictional facts: 1) death of the
decedent, 2) 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.
Manzanero v. CFI of Batangas, 61
Phil. 850 (1935) The determination
of venue may be questioned only if
the want of jurisdiction appears on
record, or on appeal, NOT through
a special civil action of certiorari.
Certiorari is available only where
want of jurisdiction appears on the
record.
Eusebio v. Eusebio, 100 Phil. 593
(1956) To establish residence
sufficient to confer venue, there
must have been an intention of the
decedent to live there indefinitely.
The provision that the court first
taking cognizance of the case
excludes all other courts applies
mainly to non-resident decedents
who have properties in several
provinces.
de Leon: Fule said residence
means actual presence. Eusebio
qualified this by saying actual
presence must also be
accompanied by an intent to stay
there indefinitely. In Cuenco, the
2nd court had venue because the 1 st
court deferred to it. It is best to
ignore Cuenco’s application of the
principle on exclusion because
Eusebio said this principle applies
to cases where there are courts of
concurrent venue, i.e. when the
decedent is not a resident of the
Remedial Law Reviewer
21
Philippines and has left properties
in different provinces.
Uriarte v. CFI of Neg. Occ., 33
SCRA 252 (1970) Though testate
proceedings take precedence over
intestate proceedings, if the
intestate court took cognizance of
the estate before the testate court,
the will should be submitted to the
intestate court for probate.
However, objections to venue may
be waived and lost by laches.
c. Who may file
petition (Rule 76
Sec. 1)
Sec. 1. Who may petition for
the allowance of will. Any
executor, devisee, or legatee
named in a will, or any other
person interested in the estate,
may, at any time after the death
of the testator, petition the
court having jurisdiction to
have the will allowed, whether
the same be in his possession
or not, or is lost or destroyed.
The testator himself may,
during his lifetime, petition the
court for the allowance of his
will.
Executor, devisee or legatee in the
will, or any other person interested
in the estate (Rule 76, §1) may
petition for probate.
Note that any interested person
may apply for probate, with or
witout possession of the will.
Note there is not deadline in filing
a petition for probate. However, an
executor should present a will
within 20 days from knowledge of
the testator’s death.
Mark de Leon, JD 2001
 22

Special rules when the testator make a will, at the time of its
applies for probate himself execution;
.1 notice sent only to his If it was executed under
compulsory heirs (Rule 76 Sec. duress, or the influence of fear,
4) or threats;
.2 no witnesses required even if If it was procured by undue
the will is contested (Rule 76 and improper pressure and
Sec. 12) influence, on the part of the
.3 probate may not be denied on beneficiary, or of some other
the ground of preterition person for his benefit;
[Palacios v. Catimbang Palacios, If the signature of the
106 Phil. 739 (1959)] testator was procured by fraud
or trick, and he did not intend
d. Who may oppose
that the instrument should be
petition (Rule 76 his will at the time of fixing his
Sec. 10) signature thereto.
Sec. 10. Contestant to file 4. Jurisdictional
grounds of contest. Anyone
Requirements for
appearing to contest the will
must state in writing his Probate of Will
grounds for opposing its a. Rule 76 Sec. 3
allowance, and serve a copy
thereof on the petitioner and Sec. 3. Court to appoint time
other parties interested in the for proving will. Notice thereof
estate. to be published. When a will is
delivered to, or a petition for
Whether testsate or intestate, the the allowance of a will is filed
only persons who may oppose the in, the court having
petition are those who may inherit jurisdiction, such court shall fix
by intestacy. a time and place for proving
e. Grounds for the will when all concerned
may appear to contest the
opposition (Rule
allowance thereof, and shall
76, §9) cause notice of such time and
Sec. 9. Grounds for place to be published three (3)
disallowing will. The will shall weeks successively, previous to
be disallowed in any of the the time appointed, in a
following cases; newspaper of general
circulation in the province.
If not executed and attested
as required by law; But no newspaper
publication shall be made
If the testator was insane, or
where the petition for probate
otherwise mentally incapable to
has been filed by the testator
himself.

Remedial Law Reviewer Mark de Leon, JD 2001


Jurisdictional requirements for
probate of will
.1 hearing
.2 publication, unless petition for
probate has been filed by the
testator himself
b. Cases
Santos v. Castillo, 64 Phil. 211
(1937) The applicant for probate
should be the executor, or a person
who ahs custody of the will to be
probated. – This had been
abrogated by the rules (p. 518-519
Moran)
Rodriguez v. Borja, 17 SCRA 418
(1966) Probate jurisdiction vests
upon delivery of the will to the
court, even if no petition for its
allowance was filed until later,
because by then the Court could,
motu proprio, have taken steps to
fix the time and place for proving
the will.
de Leon: Rodriguez sad mere
delivery of the will vests the court
with jurisdiction to the exclusion of
other courts, while Cuenco said it
is when the court takes cognizance
that it excludes other courts.
Furthermore, Eusebio said the
principle of exclusion applies only
to estates of non-inhabitants.
Perez v. Perez, 105 Phil. 1132
(1959) Court acquires jurisdiction
over all persons interested in the
estate through publication. Failure
to serve notice on distributees is a
mere procedural, not a
jurisdictional, error.
Basa v. Mercado, 61 Phil. 632
(1935) Publication for 3 weeks
does not require 21 days to pass.
Remedial Law Reviewer
23
Publication need only be on 3
separate weeks.
To de deemed a newspaper of
general circulation, such
newspaper should
.1 Not be for a particular class,
profession, trade, calling, race
or religious denomination.
.2 Be published for dissemination
of local news and general
information.
.3 Be published at regular
intervals.
The custodian of the will should
likewise be stated.
5. Contents of petition
Rule 76, Sec. 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
Mark de Leon, JD 2001

administration with the
annexed.
Bautista: Prayer for relief
6. Notice and Process
(Rule 76 Sec. 4)
Sec. 4. Heirs, devisees,
legatees, and executors to be
notified by mail or personally.
The court shall also cause
copies of the notice of the time
and place fixed for proving the
will to be addressed to the
designated or other known
heirs, legatees, and devisees of
the testator resident in the
Philippines at their places of
residence, and deposited in the
post office with the postage
thereon prepaid at least twenty
(20) days before the hearing, if
such places of residence be
known. A copy of the notice
must in like manner be mailed
to the person named as
executor, if he be not be
petitioner; also, to any person
named as co-executor not
petitioning, if their places of
residence be known. Personal
service of copies of the notice
at least ten (10) days before the
day of hearing shall be
equivalent to mailing.
If the testator asks for the
allowance of his own will,
notice shall be sent only to his
compulsory heirs.
a. What notices
be sent
Notice of time and place
hearing.
Remedial Law Reviewer
24
will Jurisdiction over the parties is
acquired by mere publication in a
newspaper of general circulation
because it is proceeding in rem.
b. To whom notices
to be sent
Where the testator is a resident,
notices are sent to
.1 non-petitioning executors
.2 designated heirs
.3 other known heirs
.4 legatees, and devisees
.5 only compulsory heirs, if the
testator is the applicant
de Leon: What is the point of
notifying the compulsory heirs
when the testator is the applicant
if they can’t not oppose on the
ground of preterition [Palacios v.
Catimbang Palacios, 106 Phil. 739
(1959)] ?
de Leon: In case the testator is not
a resident and his will had been
probated abroad, the notice
requirements are provided by Rule
77 Sec. 2
Sec. 2. Notice of hearing for
allowance. When a copy of such
will and of the order or decree of
the allowance thereof, both duly
authenticated, are filed with a
petition for allowance in the
Philippines, by the executor or
other person interested, in the
court having jurisdiction, such
court shall fix a time and place for
the hearing, and cause notice
to thereof to be given as in case of an
original will presented for
allowance.
of c. How notices to be
sent
Mark de Leon, JD 2001
 25

Notices may be sent expert testimony may be

.1 by mail with the postage resorted to.
prepaid at least 20 days before Sec. 6. Proof of lost or
hearing, if such places of destroyed will. Certificate
residence be known, or thereupon. No will shall be
.2 Personal service at least 10 proved as a lost or destroyed
days before hearing will unless the execution and
validity of the same be
7. Hearing on Petition established, and the will is
proved to have been in
a. Proofs required existence at the time of death
on Probate of the testator, or is shown to
Hearing have been fraudulently or
accidentally destroyed in the
1) Rule 76 Secs. 5,
lifetime of the testator without
6, 7, 8, 11, 12 his knowledge, nor unless its
Sec. 5. Proof at hearing. provisions are clearly and
What sufficient in absence of distinctly proved by at least two
contest. At the hearing (2) credible witnesses. When a
compliance with the provisions lost will is proved, the
of the last two preceding provisions thereof must be
sections must be shown before distinctly stated and certified
the introduction of testimony in by the judge, under the seal of
support of the will. All such the court, and the certificate
testimony shall be taken under must be filed and recorded as
oath and reduced to writing. If other wills are filed and
no person appears to contest recorded.
the allowance of the will, the Sec. 7. Proof when witnesses
court may grant allowance do not reside in province. If it
thereof on the testimony of one appears at the time fixed for
of the subscribing witnesses the hearing that none of the
only, if such witness testify that subscribing witnesses resides
the will was executed as is in the province, but that the
required by law. deposition of one or more of
In the case of a holographic them can be taken elsewhere,
will, it shall be necessary that the court may, on motion,
at least one witness who knows direct it to be taken, and may
the handwriting and signature authorize a photographic copy
of the testator explicitly declare of the will to be made and to be
that the will and the signature presented to the witness on his
are in the handwriting of the examination, who may be asked
testator. In the absence of any the same questions with
such competent witness, and if respect to it, and to the
the court deem it necessary, handwriting of the testator and
others, as would be pertinent

Remedial Law Reviewer Mark de Leon, JD 2001


and competent if the original
will were present.
Sec. 8. Proof when witnesses
dead or insane or do not reside
in the Philippines. If it appears
at the time fixed for the
hearing that the subscribing
witnesses are dead or insane,
or that none of them resides in
the Philippines, the court may
admit the testimony of other
witnesses to prove the sanity of
the testator, and the due
execution of the will; and as
evidence of the execution of the
will, it may admit proof of the
handwriting of the testator and
of the subscribing witnesses, or
of any of them.
Sec. 11. Subscribing
witnesses produced or
accounted for where will
contested. If the will is
contested, all the subscribing
witnesses, and the notary in the
case of wills executed under the
Civil Code of the Philippines, if
present in the Philippines and
not insane, must be produced
and examined, and the death,
absence, or insanity of any of
them must be satisfactory
shown to the court. If all or
some of such witnesses are
present in the Philippines but
outside the province where the
will has been filed, their
deposition must be taken. If
any or all of them testify
against the due execution of
the will, or do not remember
having attested to it, or are
otherwise of doubtful
credibility, the will may,
nevertheless, be allowed if the
Remedial Law Reviewer
26
court is satisfied from the
testimony of other witnesses
and from all the evidence
presented that the will was
executed and attested in the
manner required by law.
If a holographic will is
contested, the same shall be
allowed if at least three (3)
witnesses who know the
handwriting of the testator
explicitly declare that the will
and the signature are in the
handwriting of the testator; in
the absence of any competent
witness, and if the court deem
it necessary, expert testimony
may be resorted to.
Sec. 12. Proof where testator
petitions for allowance of
holographic will. Where the
testator himself petitions for
the probate of his holographic
will and no contest in filed, the
fact that he affirms that the
holographic will and the
signature are in his own
handwriting, shall be sufficient
evidence of the genuineness
and due execution thereof. If
the holographic will is
contested, the burden of
disproving the genuineness and
due execution thereof shall be
on the contestant. The testator
may, in his turn, present such
additional proof as may be
necessary to rebut the evidence
for the contestant.
Witnesses required
.1 Notarial will
Mark de Leon, JD 2001

.a uncontested: only one
subscribing witness is
required (Rule 76, §5)
.b contested: all subscribing
witnesses, plus the notary is
required (Rule 76, §11)
.c if the testator asks for the
allowance of is own will:
notice should be given only
to the compulsory heirs
(Rule 76, §4); no need to
present other witnesses even
if will is contested (Rule 76,
§12)
If the subscribing witness is not in
the province, have his/her
deposition taken.
.2 Holographic will
.a uncontested: at least one
witness who knows the
handwriting and signature of
the testator explicitly declare
that the will and signature
are in the handwriting of the
testator; in his/her absence,
introduce a handwriting
expert (Rule 76, §5)
.b contested: at least three
witnesses who know the
handwriting of the testator;
in their absence, introduce a
handwriting expert (Rule 76,
§11)
.3 Lost or destroyed will – At least
2 credible witnesses should
prove that
.a Execution and validity of the
will
.b The will’s existence at the
time of testator’s death, or
its fraudulent or accidental
destruction in the lifetime of
Remedial Law Reviewer
27
the testator without his
knowledge
.c Clear and distinct proof of
the will’s provisions
.d A copy, if the lost will was
holographic
2) Cases
Cabang v. Delfinado, 34 Phil. 291
(1916) If the will is contested, the
proponent is obligated to present
all subscribing witnesses able to
testify. Failure to do so will be fatal
to probate.
Aldanese v. Salutillo, 47 Phil. 548
{1925) It is testimony, not physical
presence, that is required of
subscribing witnesses. Depositions
will suffice.
Vda. de Ramos v. CA, 81 SCRA 393
(1978) The declaration of the
subscribing witness, being forced
witnesses, against the probate of a
will is not conclusive on the
proponent. The proponent may
present other proof of due
execution, e.g. testimony of the
notary public and another lawyer.
Although the attesting witnesses
are the best witnesses as to the
due execution of the will, their
testimony may be overcome by
competent and more credible
evidence.
de Leon: Note that this is an
additional exception to the general
rule in evidence that an offeror is
bound by the testimony of his
witness (Rule 132 Sec. 12).
de Leon: In case of contest,
Cabang ruled that any competent
subscribing witness must testify.
Aldanese ruled that testimony
Mark de Leon, JD 2001

need not be at the probate
hearing, but may be through
depositions. Vda. de Ramos ruled
that in case any or all of them
testified against the proponent, the
proponent may resort to other
evidence to prove the due
execution of the will.
Gago v. Mamuyac, 49 Phil. 902
(1927) The proponent has the
burden to prove the existence of
the will if he seeks to have a
carbon copy of a holographic will
was admitted to probate.
Gan v. Yap, 104 Phil. 509 (1958)
Contents of a holographic will may
not be proved by parole evidence.
Rodelas v. Aranza, 119 SCRA 16
(1982) Contents of a holographic
will may be proved by a copy.
In Rodelas, there was a copy of the
holographic will. In Gan, there was
no such copy. In fact, a footnote in
Gan acknowledged that the lost
holographic will may be proved
had there been a copy.
b. Scope of Inquiry
on Proceeding to
Probate a Will
(Rule 76)
Maninang v. CA, 114 SCRA 470
(1982) Where a compulsory heir in
the direct line was alleged to have
been preterited, but the proponent
insists on a ruling on the extrinsic
validity of a will, the court can not
rule on the issue of preterition. In
this case, the general rule that in a
probate of a will, the court is
limited to the extrinsic validity of
the will, applies. The exception
applies only if practical
considerations so demanded, e.g.
Remedial Law Reviewer
28
the parties shunted aside the issue
of whether or not the will should
be allowed probate. Furthermore,
if the issue is whether there was
preterition or a defective
disinheritance, the court must first
rule on the extrinsic validity of the
will.
If there was intentional preterition
of a compulsory heir in the direct
line, Justice Herrera says this is an
act of disinheritance.
If there is a preterition, the
legitimes would be given and the
legacies would remain. If there
was an invalid disinheritance, the
“disinherited” heir would get the
extent of the portion of his
supposed inheritance.
Acain v. IAC, 155 SCRA 100
(1987): Standing to intervene in a
will is dependent on interest in the
estate. A legatee in a void will has
no standing to intervene in the
intestate proceedings if he is not
an intestate heir. Where a
compulsory heir was not at all
mentioned in, the will will be
denied probate.
The institution of heir is annulled
only if a compulsory heir in the
direct line is not mentioned in the
will at all. Hence, if only the widow
was preterited, then the nephew
would have standing.
If the petition is for letters of
administration, the petitioner need
not be an heir. Even a creditor may
file such petition.
8. Binding Force of
Trial Court Order
Allowing or
Disallowing a Will
Mark de Leon, JD 2001

a. Rule 76, Sec. 13
Sec. 13. Certificate of
allowance attached to proved
will. To be recorded in the
Office of Register of Deeds. If
the court is satisfied, upon
proof taken and filed, that the
will was duly executed, and that
the testator at the time of its
execution was of sound and
disposing mind, and not acting
under duress, menace, and
undue influence, or fraud, a
certificate of its allowance,
signed by the judge, and
attested by the seal of the court
shall be attached to the will
and the will and certificate filed
and recorded by the clerk.
Attested copies of the will
devising real estate and of
certificate of allowance thereof,
shall be recorded in the
register of deeds of the
province in which the lands lie.
b. Cases
Manalo v. Paredes, 47 Phil. 938
(1925) A will can not be submitted
for probate if a withdrawal of a
previous petition had been
approved by the court, even if the
withdrawal was based on an
agreement by the parties.
Bautista: In this case, the SC
impliedly held that the parties may
stipulate as to the testamentary
capacity of the testator. The court
impliedly recognized that the
parties may disregard the will.
9. Allowance of Will
Proved Outside of
Philippines and
Remedial Law Reviewer
29
Administration of
Estate thereunder
a. Rule 77
Sec. 1. Will proved outside
Philippines may be allowed
here. Wills proved and allowed
in a foreign country, according
to the laws of such country,
may be allowed, filed, and
recorded by the proper Court of
First Instance in the
Philippines.
Sec. 2. Notice of hearing for
allowance. When a copy of such
will and of the order or decree
of the allowance thereof, both
duly authenticated, are filed
with a petition for allowance in
the Philippines, by the executor
or other person interested, in
the court having jurisdiction,
such court shall fix a time and
place for the hearing, and
cause notice thereof to be given
as in case of an original will
presented for allowance.
Sec. 3. When will allowed,
and effect thereof. If it appears
at the hearing that the will
should be allowed in the
Philippines, the court shall so
allow it, and a certificate of its
allowance, signed by the judge,
and attested by the seal of the
court, to which shall be
attached a copy of the will,
shall be filed and recorded by
the clerk, and the will shall
have the same effect as if
originally proved and allowed
in such court.
Sec. 4. Estate, how
administered. When a will is
Mark de Leon, JD 2001

thus allowed, the court shall
grant letters testamentary, or
letters of administration with
the will annexed, and such
letters testamentary or of
administration, shall extend to
all the estate of the testator in
the Philippines. Such estate,
after the payment of just debts
and expenses of administration,
shall be disposed of according
to such will, so far as such will
may operate upon it; and the
residue, if any, shall be
disposed of as is provided by
law in cases of estates in the
Philippines belonging to
persons who are inhabitants of
another state or country.
b. Cases
Suntay v. Suntay, 95 Phil. 500
(1954) For a will probated abroad
be allowed probate here, must
prove
.1 the foreign court was a probate
court
.2 the probate procedure in the
foreign jurisdiction
.3 legal requirements for the
execution of a will had been
complied.
Since there was no proof of the
foreign law in this case, it was
presumed to be the same as in RP.
Since the will failed to comply with
the Philippine requirements for
probate of a will (notice to all
interested parties), the SC
disallowed the will previously
probated abroad.
de Leon: But it has been ruled that
failure to notify is merely a
Remedial Law Reviewer
30
procedural error which does not
affect the jurisdiction of the court.
It is publication which confers
probate jurisdiction, failure of
which is fatal to the probate.
Leon & Ghezzie v. Manufacturers
Life Ins. Co., 90 Phil. 459 (1951)
Administration extends only to the
assets of a decedent found within
the state or country where it was
granted, so that an administrator
appointed in one state or country
has no power over property in
another state or country.
Bautista: What is the difference
between a domiciliary and
anciliary administrator?
10. Letters
Testamentary and of
Administration,
when and to whom
Issued
a. Rule 78
Sec. 1. Who are incompetent
to serve as executors or
administrators. No person is
competent to serve as executor
or administrator who:
(a) Is a minor;
(b) Is not a resident of the
Philippines; and
(c) Is in the opinion of the
court unfit to execute the
duties of the trust by reason of
drunkenness, improvidence, or
want of understanding or
integrity, or by reason of
conviction of an offense
involving moral turpitude.
Disqualifications of an
executor/administrator
Mark de Leon, JD 2001
 31

.1 minority of them as are competent,

.2 non-resident accept and give bond, and they
may perform the duties and
.3 drunkenness discharge the trust required by
.4 improvidence the will.
.5 want of understanding Sec. 6. When and to whom
letters of administration
.6 want of integrity granted. If no executor is
.7 conviction of an offense named in the will, or the
involving moral turpitude. executor or executors are
incompetent, refuse the trust,
Sec. 2. Executor of executor
or fail to give bond, or a person
not to administer estate. The
dies intestate, administration
executor of an executor shall
shall be granted:
not, as such, administer the
estate of the first testator. (a) To the surviving husband
or wife, as the case may be, or
Sec. 3. Married women may
next of kin, or both, in the
serve. A married woman may
discretion of the court, or to
serve as executrix or
such person as such surviving
administratrix, and the
husband or wife, or next of kin,
marriage of a single woman
requests to have appointed, if
shall not affect her authority so
competent and willing to serve;
to serve under a previous
appointment. (b) If such surviving
husband or wife, as the case
Sec. 4. Letters testamentary
may be, or next of kin, or the
issued when will allowed. When
person selected by them, be
a will has been proved and
incompetent or unwilling, or if
allowed, the court shall issue
the husband or widow, or next
letters testamentary thereon to
of kin, neglects for thirty (30)
the person named as executor
days after the death of the
therein, if he is competent,
person to apply for
accepts the trust, and gives
administration or to request
bond as required by these
that administration be granted
rules.
to some other person, it may be
Sec. 5. Where some granted to one or more of the
coexecutors disqualified others principal creditors, if
may act. When all of the competent and willing to serve;
executors named in a will can
(c) If there is no such
not act because of
creditor competent and willing
incompetency, refusal to accept
to serve, it may be granted to
the trust, or failure to give
such other person as the court
bond, on the part of one or
may select.
more of them, letters
testamentary may issue to such

Remedial Law Reviewer Mark de Leon, JD 2001


Priority in selecting an
administrator
.1 surviving spouse, or next of kin,
or both, or person as such
surviving spouse, or next of kin,
requests
.2 one or more of the principal
creditors – if such surviving
spouse, or next of kin, or the
person selected, be
incompetent or unwilling, or if
they neglect for 30 days after
the death of the decedent to
apply for administration or to
request that administration be
granted to some other person, it
may be granted to, if competent
and willing to serve;
.3 such other person as the court
may select.
b. Cases
Ozaeta v. Pecson, 93 Phil. 416
(1953) Pending appeal of a
decision admitting the will to
probate, the executor named in the
will should be appointed special
administrator. The order of
preference for choosing a Special
Administrator is same as that of a
regular administrator. It is also not
mandatory.
Ngo The Hua v. Chung Kiat Hua, 9
SCRA 113 (1963) If there is issue
as to validity of marriage or
filiation, there should be a
provisional determination of
relationship between the deceased
and parties claiming the right to
be appointed an administrator
before an administrator is actually
appointed.
Torres v. Javier, 34 Phil. 382 (1916)
Where there is a dispute as to who
Remedial Law Reviewer
32
between 2 people is the surviving
spouse, the court is authorized to
appoint a disinterested 3rd person
as administrator.
Torres v. Sicat, 93 Phil. 155 (1953)
The order of preference is not
mandatory. However, mere
requiring proof of credit before
paying it is not enough reason to
disregard the order of preference.
De Guzman v. Limcolioc, 67 Phil.
404 (1939)
Facts: Decedent’s child from a 1st
marriage was appointed
administrator. 2 wife and widow
nd
opposed on the ground that she
has preference.
Held: Preference for the widow
fails in the existence of another
person with more interest. The
presumed interest of the widow is
based on the assumption that she
has a share in the conjugal
partnership. In this case, the
decedent acquired all of his
property during his 1st marriage
and none during the 2nd. Therefore,
a child from the 1st marriage will
have more interest in the estate
than the widow. The child should
therefore be appointed
administrator.
Gabriel v. CA, 212 SCRA 413
(1992) Mere failure of the
surviving spouse or next of kin to
apply for letters of administration
within 30 days after the decedent’s
death is not sufficient ground to
negate his preference in the
selection of administrator. An
admininstrator may be removed
only for just cause. Mere
opportunity for mischief is not
ground for removal of an
Mark de Leon, JD 2001

administrator. The appointment of
co-administrators has been upheld
for various reasons, viz: (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.
11. Opposing
Issuance of Letters
Testamentary.
Petition and Contest
for Letters of
Administration
a. Rule 79
Sec. 1. Opposition to
issuance of letters
testamentary. Simultaneous
petition for administration. Any
person interested in a will may
state in writing the grounds
why letters testamentary
should not issue to the persons
named therein executors, or
any of them, and the court,
after hearing upon notice, shall
pass upon the sufficiency of
such grounds. A petition may,
at the same time, be filed for
Remedial Law Reviewer
33
letters of administration with
the will annexed.
Sec. 2. Contents of petition
for letters of administration. A
petition for letters of
administration must be filed by
an interested person and must
show, so far as known to the
petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and
residences of the heirs, and the
names and residences of the
creditors, of the decedent
(c) The probable value and
character of the property of the
estate;
(d) The name of the person
for whom letters of
administration are prayed.
But no defect on the petition
shall render void the issuance
of letters of administration.
Sec. 3. Court to set time for
hearing. Notice thereof. When
a petition for letters of
administration is filed in the
court having jurisdiction, such
court shall fix a time and place
for hearing the petition, and
shall cause notice thereof to be
given to the known heirs and
creditors of the decedent, and
to any other persons believed
to have an interest in the
estate, in the manner provided
in section 3 and 4 of Rule 76.
Sec. 4. Opposition to
petition for administration. Any
interested person may, by filing
a written opposition, contest
the petition on the ground of
Mark de Leon, JD 2001
 34

the incompetency of the person Filipinas Shell Petroleum

for whom letters are prayed Corporation v. Dumlao, 206 SCRA
therein, or on the ground of the 40 (1992) Interest in the estate of
contestant's own right to the a person who initiates probate
administration, and may pray proceedings is not a jurisdictional
that letters issue to himself, or fact. It is a ground for a motion to
to any competent person or dismiss not on the ground of lack
persons named in the of jurisdiction, but lack of legal
opposition. capacity to institute the
proceedings. Furthermore,
Sec. 5. Hearing and order
objection to the petition for letters
for letters to issue. At the
of administration on that ground
hearing of the petition, it must
may be barred by estoppel or
first be shown that notice has
waiver, e.g. seeking favorable
been given as hereinabove
rulings from the probate court.
required, and thereafter the
court shall hear the proofs of
the parties in support of their
respective allegations, and if
satisfied that the decedent left
no will, or that there is no
competent and willing
executor, it shall order the
issuance of letters of
administration to the party best
entitled thereto.
Sec. 6. When letters of
12. Rule 80: Special
administration granted to any Administrator
applicant. Letters of Regular Special
administration may be granted Administrator Administrator
to any qualified applicant,
the
though it appears that there
prescriptive
are other competent persons
period to pay
having better right to the
debts does
administration, if such persons
not run until a
fail to appear when notified and
regular
claim the issuance of letters to
(general)
themselves.
administrator
b. Case is appointed.
Duran v. Duran, 20 SCRA 379 The powers to
(1967) An oppositor to issuance of sell are not
letters of administration should limited to
have an interest in the intestate perishable
estate. The special administrator property only.
should be an interested party.

Remedial Law Reviewer Mark de Leon, JD 2001

 35

may be sued admininstrator includes delay

by creditors. caused by an opposition to the
probate on the ground that the
properties of the estate were
a. Circumstances allegedly donated to the oppositor.
Warranting Other examples of delay are
Appointment of .1 Contest to the will is pending
Special .2 Appeal regarding the removal
Administrator of an administrator/executor is
pending
1) Rule 80 Sec. 1
.3 Parties can’t agree as to
Sec. 1. Appointment of administrator
special administrator. When
there is delay in granting .4 General administration can’t be
letters testamentary or of granted for any cause
administration by any cause The order appointing a Regular
including an appeal from the Administrator is appealable. The
allowance or disallowance of a order appointing a Special
will, the court may appoint a Administrator is a mere
special administrator to take interlocutory order; therefore, it is
possession and charge of the not appealable. However, it is a
estate of the deceased until the proper subject for a special civil
questions causing the delay are action for certiorari.
decided and executors or
Relucio v. San Jose, 91 Phil. 365
administrators appointed.
(1952) Where the appointment of a
Grounds for appointing a special regular administrator is appealed,
administrator a special administrator should be
.1 delay in granting letters appointed. Where an order
testamentary or of removing an administrator
administration by any cause appealed, the administrator
including an appeal from the remains pending appeal, unless
allowance or disallowance of a the court appoints a special
will administrator or orders execution
pending appeal.
.2 regular administrator has
claims against the estate (Rule Alcasid v. Samson, 102 Phil. 735
86, Sec. 8) (1957) Pending the appeal of an
order for removal of a special
2) Cases administrator and appointment of
De Guzman v. Guadiz, 96 5CRA a regular administrator, another
938 (1980) Delay in granting special administrator should be
letters testamentary for “any appointed.
cause” which would warrant de Leon: Ozaeta ruled that
appointment of a general pending appeal of an order

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 36

allowing probate (not the order administrators. The surviving

appointing regular administrator), spouse is still preferred.
the executor or regular Pijuan v. Vda. de Gurrea, 18 SCRA
administrator should be appointed 898 (1966) The preference
special administrator. In Relucio accorded to the surviving spouse
and Alcasid, if the pending appeal operates only if there is not
is the choice of the adminstrator, a executor named in the will who is
different special administrator willing and qualified. Furthermore,
should be appointed. the preference applies only to his
De Guzman v. Angeles, 162 SCRA appointment as regular
347 (1988) A hearing and notice of administrator. The order in
such hearing for appointment of a appointing a special
special administrator is required. admininstrator lies within the
discretion of te probate court and
de Leon: Notice is always required
is not appealable.
to confer probate jurisdiction. To
confer jurisdiction over the Corona v. CA, 116 SCRA 316
probate proceedings the form of (1982) The purpose that the side of
notice is publication. To confer the decedent and that of the
jurisdiction over matters within surviving spouse be represented in
the probate proceedings (e.g. the management of the estate is
appointment of a special sufficient ground to appoint
adminstrator) individual notice to another special administrator.
the parties is required. Ozaeta v. Pecson, 93 Phil. 416
b. Who, and How (1953) The person named executor
Many, may be in the will should be appointed as
special administrator pending an
Appointed Special
appeal of the probate court’s order
Administrator or judgment admitting a will to
Circumstances which warrant the probate and appointing a judicial
appointment of more than 1 administrator.
administrator Matias v. Gonzales, 101 Phil. 852
.1 the properties of the decedent (1957) The court has the power to
are in different places appoint multiple special
administrators for the whole of the
.2 there is more than 1 faction
estate.
among the heirs
Roxas v. Pecson, 82 Phil. 407
.3 there is more than 1 kind of
(1948) The court can not appoint
property (i.e., capital and
one special administrator for a set
conjugal)
of properties, and another special
Garcia Fule v. CA, 74 SCRA 189 administrator for another set of
(1976) The preference in properties.
appointing regular administrators
Bautista: The order of preference
is the same as appointing special
is mandatory for the appointment

Remedial Law Reviewer Mark de Leon, JD 2001

 37

of the regular administrator, but is can also sell “other property as the
merely a guideline in the court orders sold.”
appointment of a special Liwanag v. Reyes, 12 SCRA 43
administrator. Although the court (1964) A special administrator may
has the discretion to appoint the be made a defendant just like a
special administrator, such regular administrator.
discretion should be exercised
within reasonable limits. d. Removal of
de Leon: But in Torres v. Sicat, 93 Special
Phil. 155 (1953), the SC ruled that Administrator
the order of preference for
appointing regular administrator is
1) Rule 80 Sec. 3
not mandatory. Sec. 3. When powers of
special administrator cease.
c. Powers and Transfer of effects. Pending
Liabilities of suits. When letters
Special testamentary or of
Administrator administration are granted on
the estate of the deceased, the
1) Rule 80 Sec. 2 powers of the special
Sec. 2. Powers and duties of administrator shall cease, and
special administrator. Such he shall forthwith deliver to the
special administrator shall take executor or administrator the
possession and charge of goods, chattels, money, and
goods, chattels, rights, credits, estate of the deceased in his
and estate of the deceased and hands. The executor or
preserve the same for the administrator may prosecute to
executor or administrator final judgment suits
afterwards appointed, and for commenced by such special
that purpose may commence administrator.
and maintain suits as
2) Cases
administrator. He may sell only
such perishable and other Alcasid v. Samson, 102 Phil. 735
property as the court orders (1957) Pending the appeal of an
sold. A special administrator order for removal of a special
shall not be liable to pay any administrator and appointment of
debts of the deceased unless so a regular administrator, another
ordered by the court. special administrator should be
appointed.
2) Cases
Junquera v. Borromeo, 99 Phil. 276
Anderson v. Perkins, 1 SCRA 387 (1956) Failure to file an inventory
(1961) The power of the special of the estate within a reasonable
administrator to sell is not limited period is a ground for removal of a
to perishable properties only. He special administrator.

Remedial Law Reviewer Mark de Leon, JD 2001


13. Bonds of
Executors and
Administrators
a. Rule 81
Sec. 1. Bond to be given
before issuance of letters.
Amount. Conditions. Before an
executor or administrator
enters upon the execution of
his trust, and letters
testamentary or of
administration issue, he shall
give a bond, in such sum as the
court directs, conditioned as
follows:
(a) To make and return to
the court, within three (3)
months, a true and complete
inventory of all goods, chattels,
rights, credits, and estate of
the deceased which shall come
to his possession or knowledge
or to the possession of any
other person for him;
(b) To administer according
to these rules, and, if an
executor, according to the will
of the testator, all goods,
chattels, rights, credits, and
estate which shall at any time
come to his possession or to
the possession of any other
person for him, and from the
proceeds to pay and discharge
all debts, legacies, and charges
on the same, or such dividends
thereon as shall be decreed by
the court;
(c) To render a true and just
account of his administration
to the court within one (1) year,
and at any other time when
required by the court;
Remedial Law Reviewer
38
(d) To perform all orders of
the court by him to be
performed.
Conditions of the administrator’s
bond / duties of an administrator
.1 to make and return to the court,
within 3 months, a true and
complete inventory of the estate
which shall come to his
possession or knowledge or to
the possession of any other
person for him;
.2 to administer the estate, and
from the proceeds to pay and
discharge all debts, legacies,
and charges, or such dividends
thereon as shall be decreed by
the court;
.3 to render a true and just
account of his administration to
the court within 1 year, and at
any other time when required
by the court;
.4 to perform all orders of the
court by him to be performed.
Sec. 2. Bond of executor
where directed in will. When
further bond required. If the
testator in his will directs that
the executor serve without
bond, or with only his
individual bond, he may be
allowed by the court to give
bond in such sum and with
such surety as the court
approves conditioned only to
pay the debts of the testator;
but the court may require of
the executor a further bond in
case a change in his
circumstances, or for other
sufficient cause, with the
Mark de Leon, JD 2001

conditions named in the last
preceding section.
When bond may be conditioned
only to pay the debts of the
testator – testator directs in his
will that the executor serve
.1 without bond, or
.2 with only his individual bond
Note that the testator’s wishes is
not mandatory. The court may
require of the executor a further
bond in case a change in his
circumstances, or for other
sufficient cause, with the other
conditions of an administrator’s
bond.
Sec. 3. Bonds of joint
executors and administrators.
When two or more persons are
appointed executors or
administrators the court may
take a separate bond from
each, or a joint bond from all.
Sec. 4. Bond of special
administrator. A special
administrator before entering
upon the duties of his trust
shall give a bond, in such sum
as the court directs,
conditioned that he will make
and return a true inventory of
the goods, chattels, rights,
credits, and estate of the
deceased which come to his
possession or knowledge, and
that he will truly account for
such as are received by him
when required by the court,
and will deliver the same to the
person appointed executor or
administrator, or to such other
person as may be authorized to
receive them.
Remedial Law Reviewer
39
Conditions of special
administrator’s bond
.1 he will make and return a true
inventory of the estate which
come to his possession or
knowledge, and
.2 he will truly account for such as
are received by him when
required by the court, and
.3 will deliver the estate to the
person appointed executor or
administrator, or to such other
person as may be authorized to
receive them.
de Leon: Note that the special
administrator’s bond is not bound
to inventory property of the estate
“in the possession of any other
person for him” unlike a regular
administrator’s bond.
b. Cases
Cosme de Mendoza v. Pacheco, 64
Phil. 134 (1937) The probate court
has to power to execute on the
administrator’s bond. The
administrator’s bond may held
liable in the proceedings for the
accounting of the administrator. A
separate action need not be filed.
Warner, Barnes & Co., Ltd. v.
Luzon Surety Co., Inc., 95 Phil.
924 (1954) Though Mendoza v.
Pacheco ruled that the probate
court has jurisdiction to execute on
the bond, it did not rule that a
claim on an administrator’s bond
may not be litigated in a separate
action. Although the probate court
has jurisdiction over the forfeiture
or enforcement of an
administrator's bond, the same
Mark de Leon, JD 2001

matter may be litigated in an
separate ordinary civil action.
Although an administrator's bond
is executed in favor of the Republic
of the Philippines, it is expressly
for the benefit of the heirs,
legatees and creditors. A creditor
may directly in his name enforce
said bond in so far as he is
concerned. Where there are no
proceedings for the administration
of the estate of the deceased
administrator, the creditor may
enforce the administrator’s bond
against the surety which bound
itself jointly and severally in the
case where the bond was filed.
Luzon Surety Co., Inc. v. Quebrar,
127 SCRA 295 (1984)
Facts: Administrator’s bond was
renewable every year with
indemnity agreement for all
expenses. Renewal fees and
indemnifications were unpaid since
the 2nd year. After distribution and
on motion, court cancelled the
bonds. Surety sues for the renewal
fees and indemnifications from the
2nd year until the bonds were
cancelled. Executor claims that the
administrator’s bond ceased to be
effective from the approval of the
project of partition and the
indemnification agreement ceased
to be effective from the failure to
pay the renewal fees.
Held: The surety is liable under
the administrator’s bond for as
long as the administrator has
duties to do as such executor or
administrator. Hence, the
administrator is still duty bound to
respect the indemnity agreements
entered into by him in
consideration of the suretyship.
Remedial Law Reviewer
40
The executor still had duties to
perform even after the approval of
the project of partition. There were
still debts and expenses to be paid
after then. An estate may be
partitioned even before the
termination of the administration
proceedings. Partition does not
terminate the administration
proceedings.
The sureties of an administration
bond are liable only for matters
occurring during the term covered
by the bond. The term of a bond
does not usually expire until the
administration has been closed
and terminated. As long as the
probate court retains jurisdiction
of the estate, the bond
contemplates a continuing liability
notwithstanding the non-renewal
of the bond.
Payment of the premiums and
documentary stamps are not
conditions precedent for the
effectivity of the bonds. There is no
provision or condition in the bond
to the effect that it will terminate
at the end of the 1st year if the
premium for continuation
thereafter is not paid. There is no
clause by which its obligation is
avoided or even suspended by the
failure of the obligee to pay an
annual premium.
Bottomline: Subsequent default of
premium does not exonerate the
surety. Nevertheless, the
administrator is still liable for the
premiums. Neither does expiration
of the term of the bond exonerate
the surety. The Rules are deemed
written into the bond contract, i.e.
for the duration of the
adminstration proceedings.
Mark de Leon, JD 2001
 41

14. Revocation of may remove him, or, in its

Administration, discretion, may permit him to
resign. When an executor or
Death, Resignation,
administrator dies, resigns, or
and Removal of is removed the remaining
Executors and executor or administrator may
Administrators administer the trust alone,
unless the court grants letters
a. Rule 82 to someone to act with him. If
Sec. 1. Administration there is no remaining executor
revoked if will discovered. or administrator,
Proceedings thereupon. If after administration may be granted
letters of administration have to any suitable person.
been granted on the estate of a When administration revoked
decedent as if he had died
intestate, his will is proved and .1 (when administrator was
allowed by the court, the letters appointed in intestate
of administration shall be proceedings) a will is
revoked and all powers subsequently probated
thereunder cease, and the .2 neglects to render his account
administrator shall forthwith and settle the estate
surrender the letters to the
court, and render his account .3 absconds, or becomes insane,
within such time as the court or otherwise incapable or
directs. Proceedings for the unsuitable to discharge the
issuance of letters trust
testamentary or of Sec. 3. Acts before
administration under the will revocation, resignation, or
shall be as hereinbefore removal to be valid. The lawful
provided. acts an executor or
Sec. 2. Court may remove or administrator before the
accept resignation of executor revocation of his letters
or administrator. Proceedings testamentary or of
upon death, resignation, or administration, or before his
removal. If an executor or resignation or removal, shall
administrator neglects to have the like validity as if there
render his account and settle had been no such revocation,
the estate according to law, or resignation, or removal.
to perform an order or Sec. 4. Powers of new
judgment of the court, or a executor or administrator.
duty expressly provided by Renewal of license to sell real
these rules, or absconds, or estate. The person to whom
becomes insane, or otherwise letters testamentary or of
incapable or unsuitable to administration are granted
discharge the trust, the court after the revocation of former

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 42

letters, or the death, to be subject to needless litigation

resignation, or removal of a is sufficient ground to remove an
former executor or executor. d
administrator, shall have the Gonzales v. Aguinaldo, 190 SCRA
like powers to collect and settle 112 (1990) Mere temporary
the estate not administered absence and/or disagreements
that the former executor or with co-administrators, without
administrator had, and may misconduct, is not sufficient
prosecute or defend actions ground for removal of a co-
commenced by or against the administrator. The removal of an
former executor or administrator does not lie on the
administrator, and have whims, caprices and dictates of the
execution on judgments heirs or beneficiaries of the estate.
recovered in the name of such
former execution or 15. Inventory and
administrator. An authority Appraisal. Provision
granted by the court to the for Support of
former executor or Family
administrator for the sale or
mortgage of real estate may be a. Rule 83
renewed in favor of such person
Sec. 1. Inventory and
without further notice or
appraisal to be returned within
hearing.
three months. Within three (3)
b. Case months after his appointment
every executor or administrator
Borroeo v. Borromeo, 97 Phil. 549
shall return to the court a true
(1955)
inventory and appraisal of all
Facts: Executor fails to account for the real and personal estate of
proceeds of the estate and claims the deceased which has come
as his own shares that are in the into his possession or
name of the decedent. He secures knowledge. In the
a postponement of the hearing of a appraisement of such estate,
motion to remove him. Before the the court may order one or
postponed hearing takes place, he more of the inheritance tax
withdraws money from the appraisers to give his or their
decedent’s joint account with him. assistance.
Held: The withdrawal, the failure Administrator should return an
to account for the proceeds, and inventory and appraisal of the
claim over the shares are enough estate within 3 months from his
ground to remove the executor. appointment.
Mendiola v. CA, 190 SCRA 421 Sec. 2. Certain articles not
(1990) Failure to pay estate tax, to be inventoried. The wearing
failure to render an accounting of apparel of the surviving
the estate, and causing the estate husband or wife and minor

Remedial Law Reviewer Mark de Leon, JD 2001


children, the marriage bed and
bedding, and such provisions
and other articles as will
necessarily be consumed in the
subsistence of the family of the
deceased, under the direction
of the court, shall not be
considered as assets, nor
administered as such, and shall
not be included in the
inventory.
Sec. 3. Allowance to widow
and family. The widow and
minor or incapacitated children
of a deceased person, during
the settlement of the estate,
shall receive therefrom, under
the direction of the court, such
allowance as are provided by
law.
b. Cases
Garcia v. Garcia, 67 Phil. 353
(1939) 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 to be
instituted between the parties.
Cuizon v. Ramolete, 129 SCRA 495
(1984) When the property in
question was in the possession of
3rd parties and more important,
covered by a TCT issued in the
name of such 3rd parties, the court
should have denied the motion of
the administrator and excluded the
property in question from the
inventory of the property of the
estate. It had no authority to
deprive such 3rd persons of their
Remedial Law Reviewer
43
possession and ownership of the
property.
Guinguing v. Abuton, 48 Phil. 144
(1925) Where the claims of
ownership is between the
adminstrator and 3rd persons, such
should be settled in a separate
proceeding. Where the dispute is
between the administrator and an
heir, the issue may be resolved in
the same proceedings. The
inclusion of a property in the
inventory does not deprive the
occupant of possession.
Bottomline: If the claimiant of the
party is an heir and the parties
agree, the probate court can
determine the issue of ownership
conclusively between them.
However, if the claimant is a
stranger to the probate
proceeding, the court can resolve
the issue of ownership only
provisionally. (p. 83 Moran)
Sebial v. Sebial, 64 SCRA 385
(1975) The 3-month period to file
an inventory is not mandatory.
After the filing of a petition for the
issuance of letters of
administration and the publication
of the notice of hearing, the
probate court acquires jurisdiction
over a decedent's estate and
retains that jurisdiction until the
proceeding is closed. The fact that
an inventory was filed after the 3-
month period would not deprive
the probate court of jurisdiction to
approve it. However, an
administrator's unexplained delay
in filing the inventory may be a
ground for his removal
Pio Barretto Realty Development,
Inc. v. CA, 131 SCRA 606 (1984)
Mark de Leon, JD 2001

Questions of title or ownership,
which result to inclusion in or
exclusion from the inventory can
only be settled conclusively in a
separate action.
Santero v. CFI of Cavite, 153 SCRA
728 (1987) While the rules of court
limit allowances to the widow and
minor or incapacitated children,
the Civil Code (now Family Code)
gives the surviving spouse and his
children support without
distinction. Hence, the fact that
the children are of majority age,
gainfully employed, or already
married is irrelevant in
determining entitlement to support
while the estate proceedings are
being settled.
Estate of Hilario Ruiz v. CA, 252
SCRA 540 (1996) Support pending
estate proceedings should not be
limited to minor or incapacitated
children of the decedent, but
should be given to all children
entitled to support (e.g. education)
even those of majority age.
However, substantive law (Art. 188
NCC, now Art. 133 FC) limits such
support to only the surviving
spouse and children. It does not
extend to grandchildren.
cf Art. 133 FC
Art. 133. From the common mass
of property support shall be given
to the surviving spouse and to the
children during the liquidation of
the inventoried property and until
what belongs to them is delivered;
but from this shall be deducted
that amount received for support
which exceeds the fruits or rents
pertaining to them. (188a)
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44
16. General Powers
and Duties of
Executors and
Administrators
a. Rule 84
Sec. 1. Executor or
administrator to have access to
partnership books and
property. How right enforced.
The executor or administrator
of the estate of a deceased
partner shall at all times have
access to, and may examine and
take copies of, books and
papers relating to the
partnership business, and may
examine and make invoices of
the property belonging to such
partnership; and the surviving
partner or partners, on request,
shall exhibit to him all such
books, papers, and property in
their hands or control. On the
written application of such
executor or administrator, the
court having jurisdiction of the
estate may order any such
surviving partner or partners to
freely permit the exercise of
the rights, and to exhibit the
books, papers, and property, as
in this section provided, and
may punish any partner failing
to do so for contempt.
Sec. 2. Executor or
administrator to keep buildings
in repair. An executor or
administrator shall maintain in
tenantable repair the houses
and other structures and fences
belonging to the estate, and
deliver the same in such repair
Mark de Leon, JD 2001

to the heirs or devisees when
directed so to do by the court.
Sec. 3. Executor or
administrator to retain whole
estate to pay debts, and to
administer estate not willed. An
executor or administrator shall
have the right to the possession
and management of the real as
well as the personal estate of
the deceased so long as it is
necessary for the payment of
the debts and the expenses of
administration.
b. Cases
Malahacan v. Ignacio, 19 Phil. 434
(1911) The executor or
administrator has the right to take
possession of the estate so long as
it is necessary for the payment of
debts and expenses of
administration. Where there are no
debts to be paid, there is no reason
for the executor’ or administrator’
taking possession of the estate
which should pass to the heir. If
other heirs have not received their
participation, their remedy is an
action for partition.
San Diego v. Nombre, 11 SCRA
165 (1964) Administrator has the
power of administration over the
estate. He may therefore enter
into acts of administration like
leasing estate property without
securing any permission from the
probate court. Where the lease has
formally been entered into, the
court can not, in the same
proceeding, annul and lease.
While the duties of a judicial
administrator and an agent are in
some respects identical, the
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45
provision on agency which limits
the activity of the agent to lease
real property for more than 1 year
without special power from the
principal does not apply to judicial
administrators who may lease
properties without any special
authority from the court. A judicial
admininstrator is appointed by the
court and is the representative not
only of the court, but also the heirs
and creditors of the estate. A
judicial administrator before
entering into his duties, is required
to file a bond. These circumstances
is not true in cases 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 through
agreements, whereas the acts of a
judicial administrator are subject
to specific provisions of law and
orders of the appointing court.
Jaroda v. Cusi, 28 SCRA 1008
(1969) An administrator can not
appoint himself as attorney-in-fact
to sell property of the estate. An
order of the probate court
approving such appointment is
void.
Wilson v. Rear, 55 Phil. 44 (1930)
An administrator, without an order
of the court, has no authority to
continue the business in which the
deceased was engaged at the time
of his death. If he does so with the
funds of the estate, he is
chargeable with all the losses
incurred thereby without allowing
him to receive the benefit of any
profits that he may make.
Executors and administrators who
Mark de Leon, JD 2001

do not actively labor to close the
estate within 12 months can be
deprived of compensation. Harsher
measures may be his removal or
his liability for damage. The law
does not impose upon the executor
or administrator a high degree of
care, but it does impose upon him
ordinary and usual care, for the
want of which he is personally
liable.
Fabie v. Yulo, 24 Phil. 240 (1913)
The executor or administrator can
not borrow money without
authority of the court, even if it is
for the benefit of the estate. In
case he does, he alone will be
responsible with his own property
for the debts and obligations he
has contracted. The fact that the
money was used for the benefit
and improvement of the estate
cannot affect a creditor's rights,
nor is he obliged to direct his
action against the estate, but it lies
directly against the administrator
or executor who is alone
personally responsible for the
payment of the debt he contracted.
17. Accountability
and Compensation
of Executors and
Administrators
a. Rule 85
Sec. 1. Executor or
administrator chargeable with
all estate and income. Except
as otherwise expressly provided
in the following sections, every
executor or administrator is
chargeable in his account with
the whole of the estate of the
deceased which has come into
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46
his possession, at the value of
the appraisement contained in
the inventory; with all the
interest, profit, and income of
such estate; and with the
proceeds of so much of the
estate as is sold by him, at the
price at which it was sold.
Sec. 2. Not to profit by
increase or lose by decrease in
value. No executor or
administrator shall profit by
the increase, or suffer loss by
the decrease or destruction,
without his fault, of any part of
the estate. He must account for
the excess when he sells any
part of the estate for more than
appraisement, and if any is sold
for less than the appraisement,
he is not responsible for the
loss, if the sale has been justly
made. If he settles any claim
against the estate for less than
its nominal value, he is entitled
to charge in his account only
the amount he actually paid on
the settlement.
Sec. 3. When not
accountable for debts due
estate. No executor or
administrator shall be
accountable for debts due the
deceased which remain
uncollected without his fault.
Sec. 4. Accountable for
income from realty used by
him. If the executor or
administrator uses or occupies
any part of the real estate
himself, he shall account for it
as may be agreed upon between
him and the parties interested,
or adjusted by the court with
Mark de Leon, JD 2001

their assent; and if the parties
do not agree upon the sum to
be allowed, the same may be
ascertained by the court, whose
determination in this respect
shall be final.
Sec. 5. Accountable if he
neglects or delays to raise or
pay money. When an executor
or administrator neglects or
unreasonably delays to raise
money, by collecting the debts
or selling the real or personal
estate of the deceased, or
neglects to pay over the money
he has in his hands, and the
value of the estate is thereby
lessened or unnecessary cost or
interest accrues, or the persons
interested suffer loss, the same
shall be deemed waste and the
damage sustained may be
charged and allowed against
him in his account, and he shall
be liable therefor on his bond.
Sec. 6. When allowed money
paid as costs. The amount paid
by an executor or administrator
for costs awarded against him
shall be allowed in his
administration account, unless
it appears that the action or
proceeding in which the costs
are taxed was prosecuted or
resisted without just cause, and
not in good faith.
Sec. 7. What expenses and
fees allowed executor or
administrator. Not to charge
for services as attorney.
Compensation provided by will
controls unless renounced. An
executor or administrator shall
be allowed the necessary
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47
expenses in the care,
management, and settlement of
the estate, and for his services,
four pesos per day for the time
actually and necessarily
employed, or a commission
upon the value of so much of
the estate as comes into his
possession and is finally
disposed of by him in the
payment of debts, expenses,
legacies, or distributive shares,
or by delivery to heirs or
devisees, of two per centum of
the first five thousand pesos of
such value, one per centum of
so much of such value as
exceeds five thousand pesos
and does not exceed thirty
thousand pesos, one-half per
centum of so much of such
value as exceeds thirty
thousand pesos and does not
exceed one hundred thousand
pesos and one-quarter per
centum of so much of such
value as exceed one hundred
thousand pesos. But in any
special case, where the estate
is large, and the settlement has
been attended with great
difficulty, and has required a
high degree or capacity on the
part of the executor or
administrator, a greater sum
may be allowed. If objection to
the fees allowed be taken, the
allowance may be re-examined
on appeal.
If there are two or more
executors or administrators,
the compensation shall be
apportioned among them by the
court according to the services
Mark de Leon, JD 2001
 48

actually rendered by them of extensions of time for

respectively. presenting claims against, or
paying the debts of, the estate,
When the executor or
or for disposing of the estate;
administrator is an attorney, he
and he shall render such
shall not charge against the
further accounts as the court
estate any professional fees for
may require until the estate is
legal services rendered by him.
wholly settled.
When the deceased by will
Sec. 9. Examination on oath
makes some other provision for
with respect to account. The
the compensation of his
court may examine the
executor, that provision shall
executor or administrator upon
be a full satisfaction for his
oath with respect to every
services unless by a written
matter relating to any account
instrument filed in the court he
rendered by him, and shall so
renounces all claim to the
examine him as to the
compensation provided by the
correctness of his account
will.
before the same is allowed,
Conditions when greater except when no objection is
compensation may be given to the made to the allowance of the
adminstrator account and its correctness is
.1 estate is large satisfactorily established by
competent proof. The heirs,
.2 settlement has been attended legatees, distributees, and
with great difficulty, and creditors of the estate shall
.3 settlement has required a high have the same privilege as the
degree or capacity on the part executor or administrator of
of the executor or administrator being examined on oath of any
matter relating to an
GR: Executor’s compensation
administration.
provided in the will shall be a full
satisfaction for his services. Sec. 10. Account to be
settled on notice. Before the
Exception: Executor files a written
account of an executor or
renunciation of all claim to the
administrator is allowed, notice
compensation provided in the will.
shall be given to persons
Sec. 8. When executor or interested of time and place of
administrator to render examining and allowing the
account. Every executor or same; and such notice may be
administrator shall render an given personally to such
account of his administration persons interested or by
within one (1) year from the advertisement in a newspaper
time of receiving letters or newspapers, or both, as the
testamentary or of court directs.
administration, unless the
court otherwise directs because

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Sec. 11. Surety on bond may
be party to accounting. Upon
the settlement of the account
of an executor or administrator,
a person liable as surety in
respect to such account may,
upon application, be admitted
as party to such accounting.
b. Cases
Joson v. Joson, 2 SCRA 82 (1961)
Extrajudicial settlement and
partition of the estate is not a
waiver of the objections of the
heirs to the accounts submitted by
the adminstrator or a release of
the latter’s obligation to prove his
accounts. This is more so when
according to the oppositors, the
administrator has committed in his
accounts a shortage which
certainly can not just be brushed
aside by a mere technicality.
Rodriguez v. Silva, 90 Phil. 752
(1952) The amount of commission
an executor or administrator may
be allowed may be greater where
the estate is large, and the
settlement has been attended with
great difficulty, and has required a
high degree of capacity on the part
of the executor or administrator.
The fact that the executor or
administrator is a lawyer, or other
person especially qualified to deal
with intricate and difficult matters
of law or business, is of itself
insufficient ground for increasing
the compensation except where
the executor-lawyer or
administrator-lawyer was able to
stop what appeared to be an
improvident disbursement of a
substantial amount without having
to employ outside legal help at an
Remedial Law Reviewer
49
additional expense to the estate.
Where an administrator is a
lawyer, his legal services while not
compensable as such, is to be
considered in the award of extra
compensation.
Albino v. Borromeo, 16 SCRA 247
(1966) The attorney who assists
the executor or administrator in
the execution of his trust can not
hold the estate directly liable for
his fees, the liability for payment
resting primarily on the executor
or administrator. If the executor or
administrator has paid the fees, he
is entitled to reimbursement from
the estate. The payments made by
the administrator should be
allowed upon notice.
Phil. Trust Co. v. Luzon Surety Co.,
2 SCRA 122 (1961) Sureties (of the
executor’s or administrator’s bond)
are not entitled to notice but may
be allowed to intervene in the
settlement of the account of the
executor or administrator if they
ask for leave to do so in due time.
Lim Kalaw v. IAC, 213 SCRA 289
(1992) The rendering of an
accounting by an administrator of
his administration within one year
from his appointment is
mandatory. The only exception is
when the court otherwise directs
because of extensions of time for
presenting claims against, or
paying the debts of the estate.
Failure to do so is ground for
removal as administrator.
18. Claims Against
Estate
a. Rule 86
Mark de Leon, JD 2001
 50

Sec. 1. Notice to creditors to .3 for cause shown

be issued by court. Immediately de Leon: What is the remedy if an
after granting letters order for distribution had already
testamentary or of been entered?
administration, the court shall
issue a notice requiring all Sec. 3. Publication of notice
persons having money claims to creditors. Every executor or
against the decedent to file administrator shall,
them in the office of the clerk immediately after the notice to
of said court. creditors is issued, cause the
same to be published three (3)
Sec. 2. Time within which weeks successively in a
claims shall be filed. In the newspaper of general
notice provided in the circulation in the province, and
preceding section, the court to be posted for the same
shall state the time for the period in four public places in
filing of claims against the the province and in two public
estate, which shall not be more places in the municipality
than twelve (12) nor less than where the decedent last
six (6) months after the date of resided.
the first publication of the
notice. However, at any time Sec. 4. Filing copy of printed
before an order of distribution notice. Within ten (10) days
is entered, on application of a after the notice has been
creditor who has failed to file published and posted in
his claim within the time accordance with the preceding
previously limited, the court section, the executor or
may, for cause shown and on administrator shall file or cause
such terms as are equitable, to be filed in the court a
allow such claim to be filed printed copy of the notice
within a time not exceeding one accompanied with an affidavit
(1) month. setting forth the dates of the
first and last publication
Period which the court is allowed thereof and the name of the
to set for presentation of money newspaper in which the same is
claims: 6-12 months from 1st printed.
publication.
Sec. 5. Claims which must be
filed under the notice. If not
Extension: Not exceeding 1 month filed, barred; exceptions. All
if claims for money against the
.1 before an order of distribution decedent, arising from
is entered contract, express or implied,
whether the same be due, not
.2 an application of a creditor who due, or contingent, all claims
has failed to file his claim within for funeral expenses and
the period expenses for the last sickness

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 51

of the decedent, and judgment .4 publication of notice duly made

for money against the .5 no fraud in the proceedings.
decedent, must be filed within
the time limited in the notice; Exception: Money claims
otherwise they are barred otherwise barred by the statute of
forever, except that they may be non-claims may be set as a
set forth as counterclaims in counterclaim against the estate.
any action that the executor or When money claims need not be
administrator may bring presented before the probate court
against the claimants. Where
an executor or administrator .1 can be set-up as a counterclaim
commences an action, or in an action by the estate
prosecutes an action already .2 already commenced at the time
commenced by the deceased in of the decedent’s death (Rule 3,
his lifetime, the debtor may set Sec. 20)
forth by answer the claims he
Claims not yet due or contingent,
has against the decedent,
may be approved at their present
instead of presenting them
value.
independently to the court as
herein provided, and mutual Sec. 6. Solidary obligation of
claims may be set off against decedent. Where the obligation
each other in such action; and of the decedent is solidary with
if final judgment is rendered in another debtor, the claim shall
favor of the defendant, the be filed against the decedent as
amount so determined shall be if he were the only debtor,
considered the true balance without prejudice to the right
against the estate, as though of the estate to recover
the claim had been presented contribution form the other
directly before the court in the debtor. In a joint obligation of
administration proceedings. the decedent, the claim shall be
Claims not yet due or confined to the portion
contingent, may be approved at belonging to him.
their present value. Note that this does not prevent the
Requirements for the statute of creditor from claiming the whole
non-claims to apply debt against the surviving debtor.
[Imperial Ins. Co. v. David, 133
.1 money claims (arising from SCRA 317 (1984)]
contract whether due or not,
funeral expenses, expenses for Sec. 7. Mortgage debt due
the last sickness of the from estate. A creditor holding
decedent, money judgment) a claim against the deceased
secured by mortgage or other
.2 property of the estate
collateral security, may
inventoried
abandon the security and
.3 commissioner on claims prosecute his claim in the
regularly appointed manner provided in this rule,

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 52

and share in the general .2 foreclose the mortgage, and if

distribution of the assets of the there is a judgment for a
estate; or he may foreclose his deficiency, claim his deficiency
mortgage or realize upon his judgment in the estate
security, by action in court, proceedings; or
making the executor or .3 rely upon his mortgage of other
administrator a party security alone, and foreclose
defendant, and if there is a the same at any time within the
judgment for a deficiency, after period of the statute of
the sale of the mortgaged limitations, and in that event he
premises, or the property shall not be admitted as a
pledged, in the foreclosure or creditor, and shall receive no
other proceeding to realize share in the distribution of the
upon the security, he may claim other assets of the estate
his deficiency judgment in the
manner provided in the Sec. 8. Claim of executor or
preceding section; or he may administrator against an
rely upon his mortgage of other estate. If the executor or
security alone, and foreclose administrator has a claim
the same at any time within the against the estate he
period of the statute of represents, he shall give notice
limitations, and in that event thereof, in writing, to the court,
he shall not be admitted as a and the court shall appoint a
creditor, and shall receive no special administrator, who
share in the distribution of the shall, in the adjustment of such
other assets of the estate; but claim, have the same power and
nothing herein contained shall be subject to the same liability
prohibit the executor or as the general administrator or
administrator from redeeming executor in the settlement of
the property mortgaged or other claims. The court may
pledged, by paying the debt for order the executor or
which it is held as security, administrator to pay to the
under the direction of the special administrator necessary
court, if the court shall adjudge funds to defend such claim.
it to be for the best interest of This provides for the other ground
the estate that such for appointing a special
redemption shall be made. administrator.
Options of a mortgagee in case of Sec. 9. How to file a claim.
mortgagor’s death Contents thereof. Notice to
.1 abandon the security and executor or administrator. A
prosecute his claim in the claim may be filed by delivering
estate proceedings, and share the same with the necessary
in the general distribution of vouchers to the clerk of court
the assets of the estate; or and by serving a copy thereof
on the executor or

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 53

administrator. If the claim be Sec. 10. Answer of executor

founded on a bond, bill, note or or administrator. Offsets.
any other instrument, the Within fifteen (15) days after
original need not be filed, but a service of a copy of the claim
copy thereof with all on the executor or
indorsements shall be attached administrator, he shall file his
to the claim and filed answer admitting or denying
therewith. On demand, the claim specifically, and
however, of the executor or setting forth the substance of
administrator, or by order of the matters which are relied
the court or judge, the original upon to support the admission
shall be exhibited, unless it be or denial. If he has no
lost or destroyed, in which case knowledge sufficient to enable
the claimant must accompany him to admit or deny
his claim with affidavit or specifically, he shall state such
affidavits containing a copy or want of knowledge. The
particular description of the executor or administrator in his
instrument and stating its loss answer shall allege in offset any
or destruction. When the claim claim which the decedent
is due, it must be supported by before death has against the
affidavit stating the amount claimant, and his failure to do
justly due, that no payments so shall bar the claim forever. A
have been made thereon which copy of the answer shall be
are not credited, and that there served by the executor or
are no offsets to the same, to administrator on the claimant.
the knowledge of the affiant. If The court in its discretion may
the claim is not due, or is extend the time for filing such
contingent, when filed, it must answer.
also be supported by affidavit Note that failure of the executor or
stating the particulars thereof. administrator to raise even a
When the affidavit is made by a permissive counterclaim in his
person other than the claimant, answer bars such counterclaim
he must set forth therein the forever.
reason why it is not made by
the claimant. The claim once Sec. 11. Disposition of
filed shall be attached to the admitted claim. Any claim
record of the case in which the admitted entirely by the
letters testamentary or of executor or administrator shall
administration were issued, immediately be submitted by
although the court, in its the clerk to the court who may
discretion, and as a matter of approve the same without
convenience, may order all the hearing; but the court, in its
claims to be collected in a discretion, before approving
separate folder. the claim, may order that
known heirs, legatees, or
devisees be notified and heard.

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If upon hearing, an heir,
legatee, or devisee opposes the
claim, the court may, in its
discretion, allow him fifteen
(15) days to file an answer to
the claim in the manner
prescribed in the preceding
section.
Sec. 12. Trial of contested
claim. Upon the filing of an
answer to a claim, or upon the
expiration of the time for such
filing, the clerk of court shall
set the claim for trial with
notice to both parties. The
court may refer the claim to a
commissioner.
Sec. 13. Judgment
appealable. The judgment of
the court approving or
disapproving a claim, shall be
filed with the record of the
administration proceedings
with notice to both parties, and
is appealable as in ordinary
cases. A judgment against the
executor or administrator shall
be that he pay, in due course of
administration, the amount
ascertained to be due, and it
shall not create any lien upon
the property of the estate, or
give to the judgment creditor
any priority of payment.
The remedy from a judgment
allowing a claim is appeal.
Sec. 14. Costs. When the
executor or administrator, in
his answer, admits and offers to
pay part of a claim, and the
claimant refuses to accept the
amount offered in satisfaction
of his claim, if he fails to obtain
a more favorable judgment, he
Remedial Law Reviewer
54
cannot recover costs, but must
pay to the executor or
administrator costs from the
time of the offer. Where an
action commenced against the
deceased for money has been
discontinued and the claim
embraced therein presented as
in this rule provided, the
prevailing party shall be
allowed the costs of his action
up to the time of its
discontinuance.
b. Cases
Afan v. De Guzman, 107 Phil. 839
(1960) Negotiating with 1 of the
heirs for payment is not a ground
for extension of the period to file a
claim, more so if the claimant was
aware that estate proceedings
were underway. Requirements for
an extension to be granted: 1)
application, 2) show cause why it
should be granted, 3) extension
not greater than 1 month, and 4)
order of distribution has not been
entered.
Santos v. Manarang, 27 Phil. 209
(1914) Even a debt acknowledged
and ordered paid in the will must
be presented as a claim, otherwise
it will be barred by the statute of
nonclaims.
Estate of Olave v. Reyes, 123 SCRA
167 (1903) Where a claim against
a deceased arises from contract, it
may be pursued only by filing the
same in the estate proceedings
within the period prescribed.
Where the estate is subject of a
proceeding, administrator can not
enter into any transaction without
prior approval from the courts.
Mark de Leon, JD 2001

Gutierrez v. Barretto-Datu, 5 SCRA
757 (1962) The administrator can
not be sued for damages for
breach of a contract committed by
the decedent. In such a case, the
claim should be filed before the
estate proceedings. The
administrator may be sued only to
recover property or an interest
therein, to enforce a lien on
property, to recover damages for
injury to persons or property (now
Rule 87 Sec. 1).
Aguas v. Llemos, 5 SCRA 959
(1962) An action for damages from
tort is not a money claim but an
action to recover damages for
injury to property. Such damage
suit survives defendant’s death
and need not be separately filed in
the estate proceedings. The
remedy is to substituted the
deceased with the administrator or
executor of his estate.
de Leon: Note that action for
money claims are now not abated
by the death of the defendant
(Rule 3, Sec. 20).
E. Gaskell & Co. v. Tan Sit, 43 Phil.
810 (1922) A claim that has been
discharged in bankruptcy
proceedings can not be recovered
in the estate proceedings.
Imperial Ins. Co. v. David, 133
SCRA 317 (1984) If a solidary
debtor dies, the creditor may sue
the surviving solidary debtor. He
need not file his claim in the estate
proceedings, even if the solidary
debtors were married.
Bank of P.I. v. Concepcion & Hijos,
Inc., 53 Phil. 806 (1928) For a
mortgagee to claim a deficiency
judgment on the estate, he must
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file a claim for the deficiency
within the period provided, even if
the foreclosure proceedings have
not yet been terminated.
Bayot v. Zurbito, 39 Phil. 650
(1919) The probate court has no
jurisdiction to entertain a claim in
favor of the estate against a 3rd
person, except when such claim is
made in the form of a
counterclaim. This counterclaim is
proper in an answer by the
executor or administrator to a
claim of a creditor. The probate
court can resolve the counterclaim
even if the original claim is denied.
Villanueva v. Ramos, 161 SCRA
(1988)
Intestate Estate of Dominador
Danan v. Buencamino, 110 SCRA
352 (1981) The court has
discretion to entertain a claim filed
beyond the period prescribed in
the notice, provided it is filed
within 1 month from expiration of
such period but in no case beyond
the date of entry of the order of
distribution Objection as to
timeliess of a claim is waived by
laches and estoppel (e.g. by filing
of an answer, by asking for a
postponement of hearings on the
claim)
Jaucian v. Querol, 39 Phil. 707
(1918) Where two persons are
bound in solidum for the same
debt and one of them dies, the
whole indebtedness must be
proved against the estate of the
deceased. If the claim is not thus
presented, the same will be barred
as against that estate.
Buan. v. Laya, 102 Phil. 682 (1957)
A contingent properly filed before
Mark de Leon, JD 2001

the probate court subsists until the
contingency has been finally
decided or determined. Dismissal
of the contingent claim prior to
such final determination is
premature.
Vda. de Jacob v. CA, 184 SCRA 294
(1990) Mortgagee does not lose its
right to extrajudicially foreclose
the mortgage even after the death
of the mortgagor. Filing a claim
with the probate court is merely an
option, not a requirement, for the
mortgagee to recover his credit.
19. Actions By and
Against Executors
and Administrators
a. Rule 87
Sec. 1. Actions which may
and which may not be brought
against executor or
administrator. No action upon a
claim for the recovery of money
or debt or interest thereon
shall be commenced against
the executor or administrator;
but actions to recover real or
personal property, or an
interest therein, from the
estate, or to enforce a lien
thereon, and actions to recover
damages for an injury to person
or property, real or personal,
may be commenced against
him.
cf Rule 3, Sec. 16 and 20, RoC
Sec. 16. Death of party; duty of
counsel. — Whenever a party to a
pending action dies, and the claim
is not thereby extinguished, it shall
be the duty of his counsel to
inform the court within thirty (30)
days after such death of the fact
thereof, and to give the name and
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address of his legal representative
or representatives. Failure of
counsel to comply with this duty
shall be a ground for disciplinary
action.
The heirs of the deceased may be
allowed to be substituted for the
deceased, without requiring the
appointment of an executor or
administrator and the court may
appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order
said legal representative or
representatives to appear and be
substituted within a period of
thirty (30) days from notice.
If no legal representative is named
by the counsel for the deceased
party, or if the one so named shall
fail to appear within the specified
period, the court may order the
opposing party, within a specified
time, to procure the appointment
of an executor or administrator for
the estate of the deceased and the
latter shall immediately appear for
and on behalf of the deceased. The
court charges in procuring such
appointment, if defrayed by the
opposing party, may be recovered
as costs. (16a, 17a)
Sec. 20. Action on contractual
money claims. — When the action
is for recovery of money arising
from contract, express or implied,
and the defendant dies before
entry of final judgment in the court
in which the action was pending at
the time of such death, it shall not
be dismissed but shall instead be
allowed to continue until entry of
final judgment. A favorable
judgment obtained by the plaintiff
therein shall be enforced in the
manner especially provided in
these Rules for prosecuting claims
against the estate of a deceased
person. (21a)
If the claim against a deceased is
.1 a money claim (liquidated)
Mark de Leon, JD 2001

.a already instituted – the
decedent is substituted, case
continues until final
judgment, then the judgment
is presented as a claim
before the estate
proceedings (de Leon: The
creditor must file a statute of non-claims. In non-
contingent claim under the
statute of non-claims)
.b not yet instituted – file a
claim in the estate
proceedings within the
statute of non-claims
.2 to recover real or personal
property, or an interest therein,
from the estate, or to enforce a
lien thereon, and actions to
recover damages for an injury
to person or property, real or
personal
.a already instituted – the
decedent is substituted, case
continues until final
judgment, then the judgment
is presented as a claim
before the estate
proceedings (de Leon: The
creditor must file a recover the title or possession
contingent claim under the
statute of non-claims)
.b not yet instituted – sue the
executor or administrator in
a separate action (de Leon:
The creditor must file a
contingent claim under the
statute of non-claims)
de Leon: Note that under the 1997
Rules of Civil Procedure, there is
now no distinction between money
claims and non-money claims
already instituted before the death
of the decedent. In both cases, the
action survives, the decedent is
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substituted, the claim is filed as a
contingent claim, and the final
judgment is claimed in the estate
proceedings. The difference lies
when the action has not yet been
instituted. In money claims, it
should be presented under the
money claims, the claimant must
sue the executor or administrator
in a separate action, but he must
file a contingent claim under the
statute of non-claims
Sec. 2. Executor or
administrator may bring or
defend actions which survive.
For the recovery or protection
of the property or rights of the
deceased, an executor or
administrator may bring or
defend, in the right of the
deceased, actions for causes
which survive.
Sec. 3. Heir may not sue
until have share assigned.
When an executor or
administrator is appointed and
assumes the trust, no action to
of lands or for damages done to
such lands shall be maintained
against him by an heir or
devisee until there is an order
of the court assigning such
lands to such heir or devisee or
until the time allowed for
paying debts has expired.
Sec. 4. Executor or
administrator may compound
with debtor. With the approval
of the court, an executor or
administrator may compound
with the debtor of the deceased
for a debt due, and may give a
Mark de Leon, JD 2001

discharge of such debt on
receiving a just dividend of the
estate of the debtor.
Sec. 5. Mortgage due estate
may be foreclosed. A mortgage
belonging to the estate of a
deceased person, as mortgagee
or assignee of the right of a
mortgagee, may be foreclosed
by the executor or
administrator.
Sec. 6. Proceedings when
property concealed, embezzled,
or fraudulently conveyed. If an
executor or administrator, heir,
legatee, creditor, or other
individual interested in the
estate of the deceased,
complains to the court having
jurisdiction of the estate that a
person is suspected of having
concealed, embezzled, or
conveyed away any of the
money, goods, or chattels of the
deceased, or that such person
has in his possession or has
knowledge of any deed,
conveyance, bond, contract, or
other writing which contains
evidence of or tends to disclose
the right, title, interest, or
claim of the deceased to real or
personal estate, or the last will
and testament of the deceased,
the court may cite such
suspected person to appear
before it and may examine him
on oath on the matter of such
complaint; and if the person so
cited refuses to appear, or to
answer on such examination or
such interrogatories as are put
to him, the court may punish
him for contempt, and may
commit him to prison until he
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submits to the order of the
court. The interrogatories put
to any such person, and his
answers thereto, shall be in
writing and shall be filed in the
clerk's office.
Note that the court may not order
the witness to deliver property in
his possession to the court unless
the witness does not assert a claim
adverse to the estate and express
willingness to deliver the property
to the court. Absent these
conditions, the administrator must
file a separate ation torecover the
property. [Valera v. Inserto, 149
SCRA 533 (1987)]
Sec. 7. Person entrusted
with estate compelled to render
account. The court, on
complaint of an executor or
administrator, may cite a
person entrusted by an
executor or administrator with
any part of the estate of the
deceased to appear before it,
and may require such person to
render a full account, on oath,
of the money, goods, chattels,
bonds, accounts, or other
papers belonging to such estate
as came to his possession in
trust for such executor or
administrator, and of his
proceedings thereon; and if the
person so cited refuses to
appear to render such account,
the court may punish him for
contempt as having disobeyed a
lawful order of the court.
Sec. 8. Embezzlement before
letters issued. If a person,
before the granting of letters
testamentary or of
Mark de Leon, JD 2001

administration on the estate of
the deceased, embezzles or
alienates any of the money,
goods, chattels, or effects of
such deceased, such person
shall be liable to an action in
favor of the executor or
administrator of the estate for
double the value of the
property sold, embezzled, or
alienated, to be recovered for
the benefit of such estate.
Sec. 9. Property fraudulently
conveyed by deceased may be
recovered. When executor or
administrator must bring
action. When there is deficiency
of assets in the hands of an
executor or administrator for
the payment of debts and
expenses of administration, and
the deceased in his lifetime had
conveyed real or personal
property, or a right or interest
therein, or a debt or credit,
with intent to defraud his
creditors or to avoid any right,
debt, or duty; or had so
conveyed such property, right,
interest, debt, or credit that by
law the conveyance would be
void as against his creditors,
and the subject of the
attempted conveyance would be
liable to attachment by any of
them in his lifetime, the
executor or administrator may
commence and prosecute to
final judgment an action for the
recovery of such property,
right, interest, debt, or credit
for the benefit of the creditors;
but he shall not be bound to
commence the action unless on
application of the creditors of
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59
the deceased, nor unless the
creditors making the
application pay such part of the
costs and expenses, or give
security therefor to the
executor or administrator, as
the court deems equitable.
Sec. 10. When creditor may
bring action. Lien for costs.
When there is such a deficiency
of assets, and the deceased in
his lifetime had made or
attempted such a conveyance,
as is stated in the last
preceding section, and the
executor or administrator has
not commenced the action
therein provided for, any
creditor of the estate may, with
the permission of the court,
commence and prosecute to
final judgment, in the name of
the executor or administrator, a
like action for the recovery of
the subject of the conveyance
or attempted conveyance for
the benefit of the creditors. But
the action shall not be
commenced until the creditors
has filed in a court a bond
executed to the executor or
administrator, in an amount
approved by the judge,
conditioned to indemnify the
executor or administrator
against the costs and expenses
incurred by reason of such
action. Such creditor shall have
a lien upon any judgment
recovered by him in the action
for such costs and other
expenses incurred therein as
the court deems equitable.
Where the conveyance or
attempted conveyance has been
Mark de Leon, JD 2001

made by the deceased in his
lifetime in favor of the executor
or administrator, the action
which a creditor may bring
shall be in the name of all the
creditors, and permission of
the court and filing of bond as
above prescribed, are not
necessary.
b. Cases
Lopez v. Garcia Lopez, 40 Phil, 184
(1919) An administrator may be
compelled by the probate court to
account for the period prior to her
appointment when she was then an
extrajudicial administrator.
Pascual v. Pascual, 73 Phil. 561
(1942) The general rule is, it is the
executor or adminstrator, not the
heirs, who has standing in court to
recover estate property. The
exception is if the executor or
administrator refuses to act, e.g.
the executor is a defendant.
Velasquez v. George, 125 SCRA
456 (1983) The heirs have
standing to question the action of
the BoD of a corporation owned by
the estate if the the administrator
himself had participated in the
questioned act.
De la Cruz v. Camon, 16 SCRA 886
(1966) The remedy to collect from
a debtor of the estate (who is a
stranger to the proceedings) is by
independent action, not motion in
the probate proceedings.
de Leon: cf with Bayot v. Zurbito,
39 Phil. 650 (1919) where the
estate may collect from a claimant
through a counterclaim even if the
original claim was denied.
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Modesto v. Modesto, 105 Phil.
1066 (1959) The probate court has
no authority to decide whether or
not properties belong to the estate
or to the persons examined (to
determine if they have concealed
any property of the estate). This is
true even if the witness admitted
possession of the properties. If,
after such examination there is
good reason to believe that said
person or persons examined are
keeping properties belonging to
the estate, then the next step to be
taken should be for the
administrator to file an ordinary
action in court to recover the
same. The estate may not recover
the property by mere motion.
Leon & Ghezzi v. Manufacturers
Life Ins. Co, 90 Phil. 459 (1951)
The 3rd person who may be
compelled to render an account is
a person who had in possession of
estate property entrusted to him
by, or in trust for, the executor or
administrator.
de Leon: Note the court was
apparently invoking the now Rule
87 Sec. 7. However, Rule 87 Sec. 6
does not require that the witness
was a trustee. Could Ghezzi have
used such provision instead?
Heirs of Gregoire v. Baker, 51 Phil.
75 (1927) Where the decendent
executed a transaction in fraud of
creditors, and the administrator
refuses to sue to recover the
property, the remedy is for the
creditors to sue for recovery
themselves after posting a bond to
indemnify the administrator.
de Leon: Note that Rule 87 Sec. 10
provides that if the defendant is
Mark de Leon, JD 2001

the administrator, the creditors
need not post a bond.
Valera v. Inserto, 149 SCRA 533
(1987) A probate court has no
power to take cognizance of and
determine the issue of title to
property claimed by a 3rd person
adversely to the decedent, unless
the claimant and all the other
parties having legal interest in the
property consent, expressly or
impliedly, to the submission of the
question to the probate court for
adjudgment, or the interests of 3rd
persons are not thereby
prejudiced. The examination of 3rd
persons is intended merely to elicit
evidence relevant to property of
the decedent from persons
suspected of having possession or
knowledge thereof, or of having
concealed, embezzled, or conveyed
away the same. If he lays no claim
to the property and manifests
willingness to turn it over to the
estate, the probate court simply
issues the appropriate direction for
the delivery of the property to the
estate. However, if he asserts a
right to the property contrary to
the decedent's, the probate court
would have no authority to resolve
the issue and a separate action
must be instituted by the
administrator to recover the
property.
Bernardo v. CA, 7 SCRA 367
(1963) When the parties interested
are all heirs of the deceased, it is
optional to them to submit to the
probate court a question as to title
to property, and when so
submitted, said probate court may
definitely pass judgment thereon.
With the consent of the parties,
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61
matters affecting property under
judicial administration may be
taken cognizance of by the court in
the course of intestate proceeding
provided interests of third persons
are not prejudiced.
Uy v. Dizon-Capulong, 221 SCRA
87 (1993) When questions arise as
to ownership of property alleged to
be part of the estate of a deceased
person, but claimed by some other
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
probate court, has no jurisdiction
to adjudicate such contentions,
which must be submitted to the
trial court in the exercise of its
general jurisdiction.
Cuizon v. Ramolete, 129 SCRA 495
(1984) When the property in
question was in the possession of
3rd parties and more important,
covered by a TCT issued in the
name of such 3rd parties, the court
should have denied the motion of
the administrator and excluded the
property in question from the
inventory of the property of the
estate. It had no authority to
deprive such 3rd persons of their
possession and ownership of the
property.
Circa Nila Development
Corporation v. Baylen, 157 SCRA
609 (1988) Though the probate
court has the power to approve
contracts entered into by the
estate, it has no jurisdiction to
compel the other contracting party
to abide contract. The remedy is to
Mark de Leon, JD 2001

file a specific performance with a
court of general jurisdiction.
Aguas v. Llemos, 5 SCRA 959
(1962) An action for damages from
tort is not a money claim but an
action to recover damages for
injury to property. Such damage
suit survives defendant’s death
and need not be separately filed in
the estate proceedings. The
remedy is to substitute the
deceased with the administrator or
executor of his estate.
Climaco v. Siy Uy, 19 SCRA 858
(1967) An action for damages from
tort is for a sum of money which
does not survive the death of the
defendant. Neither could the
action be directed against the
administrator because it is not for
recovery of real or personal
property, or an interest therein, or
to enforce a lien thereon or to
recover damages for an injury to
person or property.
de Leon: There is an irreconcilable
conflict between Aguas and
Climaco. Though Climaco is the
later case, I would side with Aguas
because it cites an authority for its
ruling that damages from tort is
damage to property and that an
action for damages from tort is
similar to recovery of property,
enforcing a lien on property and to
recover damages, an action for
damages from tort seeks to
recover an unliquidated amount,
unlike money claims which are
specific in amount.
Guanco v. PNB, 54 Phil. 244 (1930)
A proceeding for examining
persons suspected of having
concealed, embezzled, or conveyed
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away property of the estate is to
elicit evidence. It does not
authorize the court to enforce
delivery of possession of the things
involved. The remedy is to file an
separate action.
20. Payment of the
Debts of the Estate
a. Rule 88
Sec. 1. Debts paid in full if
estate sufficient. If, after
hearing all the money claims
against the estate, and after
ascertaining the amount of
such claims, it appears that
there are sufficient assets to
pay debts, the executor or
administrator shall pay the
same within the time limited
for that purpose.
Sec. 2. Part of estate from
which debt paid when provision
made by will. If the testator
makes provision by his will, or
designates the estate to be
appropriated for the payment of
debts, the expenses of
administration, or the family
expenses, they shall be paid
according to the provisions of
the will; but if the provisions
made by the will or the estate
appropriated, is not sufficient
for that purpose, such part of
the estate of the testator, real
or personal, as is not disposed
of by will, if any, shall be
appropriated for that purpose.
Sec. 3. Personalty first
chargeable for debts, then
realty. The personal estate of
the deceased not disposed of by
will shall be first chargeable
Mark de Leon, JD 2001

with the payment of debts and
expenses; and if said personal
estate is not sufficient for that
purpose, or its sale would
redound to the detriment of the
participants of the estate, the
whole of the real estate not
disposed of by will, or so much
thereof as is necessary, may be
sold, mortgaged, or otherwise
encumbered for that purpose
by the executor or
administrator, after obtaining
the authority of the court
therefor. Any deficiency shall be
met by contributions in
accordance with the provisions
of section 6 of this rule.
Sec. 4. Estate to be retained
to meet contingent claims. If
the court is satisfied that a
contingent claim duly filed is
valid, it may order the executor
or administrator to retain in his
hands sufficient estate to pay
such contingent claim when the
same becomes absolute, or, if
the estate is insolvent,
sufficient to pay a portion equal
to the dividend of the other
creditors.
Sec. 5. How contingent claim
becoming absolute in two years
allowed and paid. Action
against distributees later. If
such contingent claim becomes
absolute and is presented to
the court, or to the executor or
administrator, within two (2)
years from the time limited for
other creditors to present their
claims, it may be allowed by the
court if not disputed by the
executor or administrator, and,
if disputed, it may be proved
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and allowed or disallowed by
the court as the facts may
warrant. If the contingent
claim is allowed, the creditor
shall receive payment to the
same extent as the other
creditors if the estate retained
by the executor or
administrator is sufficient. But
if the claim is not so presented,
after having become absolute,
within said two (2) years, and
allowed, the assets retained in
the hands of the executor or
administrator, not exhausted in
the payment of claims, shall be
distributed by the order of the
court to the persons entitled to
the same; but the assets so
distributed may still be applied
to the payment of the claim
when established, and the
creditor may maintain an
action against the distributees
to recover the debt, and such
distributees and their estates
shall be liable for the debt in
proportion to the estate they
have respectively received from
the property of the deceased.
How maturing contingent claim
settled
.1 matures and presented to the
probate court within 2 years
from the time provided for filing
claims – paid with assets
ordered by the court to be
retained by the executor or
administrator
.2 matures and presented to the
probate court after 2 years from
the time provided for filing
claims
Mark de Leon, JD 2001

.a assets that had been
retained by the executor or
administrator may still be
applied to the payment of the
claim even if already
distributed to the
distributees in the meantime
.b the creditor may maintain an
action against the
distributees to recover the
debt, and such distributees
and their estates shall be
liable for the debt in
proportion to the estate they
have respectively received
from the property of the
deceased
Sec. 6. Court to fix
contributive shares where
devisees, legatees, or heirs
have been in possession. Where
devisees, legatees, or heirs
have entered into possession of
portions of the estate before
the debts and expenses have
been settled and paid, and have
become liable to contribute for
the payment of such debts and
expenses, the court having
jurisdiction of the estate may,
by order for that purpose, after
hearing, settle the amount of
their several liabilities, and
order how much and in what
manner each person shall
contribute, and may issue
execution as circumstances
require.
Sec. 7. Order of payment if
estate insolvent. If the assets
which can be appropriated for
the payment of debts are not
sufficient for that purpose, the
executor or administrator shall
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pay the debts against the
estate, observing the provisions
of Articles 1059 and 2239 to
2251 of the Civil Code.
cf Arts. 1059 and 2239 to 2251
NCC
Art. 1059. If the assets of the
estate of a decedent which can be
applied to the payment of debts
are not sufficient for that purpose,
the provisions of articles 2239 to
2251 on Preference of Credits
shall be observed, provided that
the expenses referred to in article
2244, No. 8, shall be those
involved in the administration of
the decedent's estate. (n)
Art. 2239. If there is property,
other than that mentioned in the
preceding article, owned by two or
more persons, one of whom is the
insolvent debtor, his undivided
share or interest therein shall be
among the assets to be taken
possession of by the assignee for
the payment of the insolvent
debtor's obligations. (n)
Art. 2240. Property held by the
insolvent debtor as a trustee of an
express or implied trust, shall be
excluded from the insolvency
proceedings. (n)
CHAPTER 2
CLASSIFICATION OF CREDITS
Art. 2241. With reference to
specific movable property of the
debtor, the following claims or
liens shall be preferred:
(1) Duties, taxes and fees due
thereon to the State or any
subdivision thereof;
(2) Claims arising from
misappropriation, breach of trust,
or malfeasance by public officials
committed in the performance of
their duties, on the movables,
money or securities obtained by
them;
Mark de Leon, JD 2001

(3) Claims for the unpaid price of
movables sold, on said movables,
so long as they are in the
possession of the debtor, up to the
value of the same; and if the
movable has been resold by the
debtor and the price is still unpaid,
the lien may be enforced on the
price; this right is not lost by the
immobilization of the thing by
destination, provided it has not
lost its form, substance and
identity; neither is the right lost by
the sale of the thing together with
other property for a lump sum,
when the price thereof can be
determined proportionally;
(4) Credits guaranteed with a
pledge so long as the things
pledged are in the hands of the
creditor, or those guaranteed by a
chattel mortgage, upon the things
pledged or mortgaged, up to the
value thereof;
(5) Credits for the making, repair,
safekeeping or preservation of
personal property, on the movable
thus made, repaired, kept or
possessed;
(6) Claims for laborers' wages, on
the goods manufactured or the
work done;
(7) For expenses of salvage, upon
the goods salvaged;
(8) Credits between the landlord
and the tenant, arising from the
contract of tenancy on shares, on
the share of each in the fruits or
harvest;
(9) Credits for transportation,
upon the goods carried, for the
price of the contract and incidental
expenses, until their delivery and
for thirty days thereafter;
(10) Credits for lodging and
supplies usually furnished to
travellers by hotel keepers, on the
movables belonging to the guest as
long as such movables are in the
hotel, but not for money loaned to
the guests;
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65
(11) Credits for seeds and
expenses for cultivation and
harvest advanced to the debtor,
upon the fruits harvested;
(12) Credits for rent for one year,
upon the personal property of the
lessee existing on the immovable
leased and on the fruits of the
same, but not on money or
instruments of credit;
(13) Claims in favor of the
depositor if the depositary has
wrongfully sold the thing
deposited, upon the price of the
sale.
In the foregoing cases, if the
movables to which the lien or
preference attaches have been
wrongfully taken, the creditor may
demand them from any possessor,
within thirty days from the
unlawful seizure. (1922a)
Art. 2242. With reference to
specific immovable property and
real rights of the debtor, the
following claims, mortgages and
liens shall be preferred, and shall
constitute an encumbrance on the
immovable or real right:
(1) Taxes due upon the land or
building;
(2) For the unpaid price of real
property sold, upon the immovable
sold;
(3) Claims of laborers, masons,
mechanics and other workmen, as
well as of architects, engineers
and contractors, engaged in the
construction, reconstruction or
repair of buildings, canals or other
works, upon said buildings, canals
or other works;
(4) Claims of furnishers of
materials used in the construction,
reconstruction, or repair of
buildings, canals or other works,
upon said buildings, canals or
other works;
Mark de Leon, JD 2001

(5) Mortgage credits recorded in
the Registry of Property, upon the
real estate mortgaged;
(6) Expenses for the preservation
or improvement of real property
when the law authorizes
reimbursement, upon the
immovable preserved or improved;
(7) Credits annotated in the
Registry of Property, in virtue of a
judicial order, by attachments or
executions, upon the property
affected, and only as to later
credits;
(8) Claims of co-heirs for warranty
in the partition of an immovable
among them, upon the real
property thus divided;
(9) Claims of donors or real
property for pecuniary charges or
other conditions imposed upon the
donee, upon the immovable
donated;
(10) Credits of insurers, upon the
property insured, for the insurance
premium for two years. (1923a)
Art. 2243. The claims or credits
enumerated in the two preceding
articles shall be considered as
mortgages or pledges of real or
personal property, or liens within
the purview of legal provisions
governing insolvency. Taxes
mentioned in No. 1, article 2241,
and No. 1, article 2242, shall first
be satisfied. (n)
Art. 2244. With reference to other
property, real and personal, of the
debtor, the following claims or
credits shall be preferred in the
order named:
(1) Proper funeral expenses for the
debtor, or children under his or
her parental authority who have no
property of their own, when
approved by the court;
(2) Credits for services rendered
the insolvent by employees,
laborers, or household helpers for
one year preceding the
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66
commencement of the proceedings
in insolvency;
(3) Expenses during the last illness
of the debtor or of his or her
spouse and children under his or
her parental authority, if they have
no property of their own;
(4) Compensation due the laborers
or their dependents under laws
providing for indemnity for
damages in cases of labor
accident, or illness resulting from
the nature of the employment;
(5) Credits and advancements
made to the debtor for support of
himself or herself, and family,
during the last year preceding the
insolvency;
(6) Support during the insolvency
proceedings, and for three months
thereafter;
(7) Fines and civil indemnification
arising from a criminal offense;
(8) Legal expenses, and expenses
incurred in the administration of
the insolvent's estate for the
common interest of the creditors,
when properly authorized and
approved by the court;
(9) Taxes and assessments due the
national government, other than
those mentioned in articles 2241,
No. 1, and 2242, No. 1;
(10) Taxes and assessments due
any province, other than those
referred to in articles 2241, No. 1,
and 2242, No. 1;
(11) Taxes and assessments due
any city or municipality, other than
those indicated in articles 2241,
No. 1, and 2242, No. 1;
(12) Damages for death or
personal injuries caused by a
quasi-delict;
(13) Gifts due to public and private
institutions of charity or
beneficence;
(14) Credits which, without special
privilege, appear in (a) a public
Mark de Leon, JD 2001

instrument; or (b) in a final
judgment, if they have been the
subject of litigation. These credits
shall have preference among
themselves in the order of priority
of the dates of the instruments and
of the judgments, respectively.
(1924a)
Art. 2245. Credits of any other
kind or class, or by any other right
or title not comprised in the four
preceding articles, shall enjoy no
preference. (1925)
CHAPTER 3
ORDER OF PREFERENCE OF
CREDITS
Art. 2246. Those credits which
enjoy preference with respect to
specific movables, exclude all
others to the extent of the value of
the personal property to which the
preference refers.
Art. 2247. If there are two or more
credits with respect to the same
specific movable property, they
shall be satisfied pro rata, after the
payment of duties, taxes and fees
due the State or any subdivision
thereof. (1926a)
Art. 2248. Those credits which
enjoy preference in relation to
specific real property or real
rights, exclude all others to the
extent of the value of the
immovable or real right to which
the preference refers.
Art. 2249. If there are two or more
credits with respect to the same
specific real property or real
rights, they shall be satisfied pro
rata, after the payment of the
taxes and assessments upon the
immovable property or real right.
(1927a)
Art. 2250. The excess, if any, after
the payment of the credits which
enjoy preference with respect to
specific property, real or personal,
shall be added to the free property
which the debtor may have, for the
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67
payment of the other credits.
(1928a)
Art. 2251. Those credits which do
not enjoy any preference with
respect to specific property, and
those which enjoy preference, as
to the amount not paid, shall be
satisfied according to the following
rules:
(1) In the order established in
article 2244;
(2) Common credits referred to in
article 2245 shall be paid pro rata
regardless of dates. (1929a)
Sec. 8. Dividends to be paid
in proportion to claims. If there
are no assets sufficient to pay
the credits of any one class of
creditors after paying the
credits entitled to preference
over it, each creditor within
such class shall be paid a
dividend in proportion to his
claim. No creditor of any one
class shall receive any payment
until those of the preceding
class are paid.
Sec. 9. Estate of insolvent
nonresident, how disposed of.
In case administration is taken
in the Philippines of the estate
of a person who was at the time
of his death an inhabitant of
another country, and who died
insolvent, his estate found in
the Philippines shall, as far as
practicable, be so disposed of
that his creditors here and
elsewhere may receive each an
equal share, in proportion to
their respective credits.
Sec. 10. When and how
claim proved outside the
Philippines against insolvent
resident's estate paid. If it
Mark de Leon, JD 2001

appears to the court having
jurisdiction that claims have
been duly proven in another
country against the estate of an
insolvent who was at the time
of his death an inhabitant of
the Philippines, and that the
executor or administrator in
the Philippines had knowledge
of the presentation of such
claims in such country and an
opportunity to contest their
allowance, the court shall
receive a certified list of such
claims, when perfected in such
country, and add the same to
the list of claims proved
against the deceased person in
the Philippines so that a just
distribution of the whole estate
may be made equally among all
its creditors according to their
respective claims; but the
benefit of this and the
preceding sections shall not be
extended to the creditors in
another country if the property
of such deceased person there
found is not equally
apportioned to the creditors
residing in the Philippines and
the other creditors, according
to their respective claims.
How foreign claims against
insolvent resident decedent settled
.1 the foreign claims have been
duly proven in another country
.2 the executor or administrator in
the Philippines had
.a knowledge of the
presentation of such claims
in such country and
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.b an opportunity to contest
their allowance,
.3 the court shall receive a
certified list of such claims,
when perfected in such country,
and
.4 add the same to the list of local
claims proved
.5 a just distribution of the whole
estate equally among all its
creditors according to their
respective claims;
The benefit of this and the
preceding sections shall not be
extended to the creditors in
another country if the property of
such deceased person there found
is not equally apportioned to the
creditors residing in the
Philippines and the other
creditors, according to their
respective claims.
Sec. 11. Order for payment
of debts. Before the expiration
of the time limited for the
payment of the debts, the court
shall order the payment
thereof, and the distribution of
the assets received by the
executor or administrator for
that purpose among the
creditors, as the circumstances
of the estate require and in
accordance with the provisions
of this rule.
Sec. 12. Orders relating to
payment of debts where appeal
is taken. If an appeal has been
taken from a decision of the
court concerning a claim, the
court may suspend the order
for the payment of the debts or
may order the distribution
Mark de Leon, JD 2001

among the creditors whose
claims are definitely allowed,
leaving in the hands of the
executor or administrator
sufficient assets to pay the
claim disputed and appealed.
When a disputed claim is finally
settled the court having
jurisdiction of the estate shall
order the same to be paid out
of the assets retained to the
same extent and in the same
proportion with the claims of
other creditors.
Sec. 13. When subsequent
distribution of assets ordered.
If the whole of the debts are
not paid on the first
distribution, and if the whole
assets are not distributed, or
other assets afterwards come to
the hands of the executor or
administrator, the court may
from time to time make further
orders for the distribution of
assets.
Sec. 14. Creditors to be paid
in accordance with terms of
order. When an order is made
for the distribution of assets
among the creditors, the
executor or administrator shall,
as soon as the time of payment
arrives, pay the creditors the
amounts of their claims, or the
dividend thereon, in
accordance with the terms of
such order.
Sec. 15. Time for paying
debts and legacies fixed, or
extended after notice, within
what periods. On granting
letters testamentary or
administration the court shall
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69
allow to the executor or
administrator a time for
disposing of the estate and
paying the debts and legacies
of the deceased, which shall
not, in the first instance,
exceed one (1) year; but the
court may, on application of the
executor or administrator and
after hearing on such notice of
the time and place therefor
given to all persons interested
as it shall direct, extend the
time as the circumstances of
the estate require not
exceeding six (6) months for a
single extension nor so that the
whole period allowed to the
original executor or
administrator shall exceed two
(2) years.
Sec. 16. Successor of dead
executor or administrator may
have time extended on notice
within certain period. When an
executor or administrator dies,
and a new administrator of the
same estate is appointed, the
court may extend the time
allowed for the payment of the
debts or legacies beyond the
time allowed to the original
executor or administrator, not
exceeding six (6) months at a
time and not exceeding six (6)
months beyond the time which
the court might have allowed to
such original executor or
administrator; and notice shall
be given of the time and place
for hearing such application, as
required in the last preceding
section.
b. Cases
Mark de Leon, JD 2001

Aldamiz v. Judge of CFI-Mindoro,
85 Phil. 228 (1949) For legal
services rendered for the estate, it
is the administrator who is liable
in his personal capacity, not as
administrator of the estate.
Furthermore, writ of execution is
not the proper remedy for payment
of debts and expenses of
administration. The proper
procedure is for the court to order
the sale of property of the estate
and use the proceeds to pay for
the debts and expenses. Execution
may issue only where the devisees,
legatees or heirs have entered into
possession of their respective
portions in the estate prior to
settlement and payment of debts
and expenses.
Buan. v. Laya, 102 Phil. 682 (1957)
A contingent properly filed before
the probate court subsists until the
contingency has been finally
decided or determined. Dismissal
of the contingent claim prior to
such final determination is
premature.
Ignacio v. Elchico, 20 SCRA 100
(1967) Where the distributees
have taken possession of the estate
before the debts and expenses are
settled and paid, the probate court
may, after hearing, settle the
amount of liability corresponding
to distributee and order how much
and in what manner each of them
shall contribute, and may issue
execution against them or their
bond, if any. Without hearing, any
order for return of property
distributed is premature.
Dinglasan v. Ang Chia, 88 Phil. 476
(1951) Administration proceedings
may not be closed if there is an
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70
action by 3rd persons against the
administrator and the heirs for
recovery of property involved in
the proceedings, and in such case,
the closure must wait until the
ordinary civil action is finally
terminated.
Intestate of Januaria Gonzales, 72
Phil. 245 (1941) Sales ordered by
the probate court for payment of
debts are final and not subject to
legal redemption.
Echaus v. Blanco, 179 SCRA 704
(1989) Under the 1964 Rules of
Civil Procedure action for money
claims pending against a deceased
should be dismissed and instituted
as a money claim in the estate
proceedings. Failure of the estate
to move to dismiss is a waiver of
its objections. The money
judgment may be claimed in the
estate proceedings, even outside
the statute of non-claims.
Furthermore, the court has
discretion to entertain a claim
beyond the statute of non-claims
provided an order of distribution is
yet to be entered. Pendency of a
case is good excuse for tardiness
in the filing of the claim. However,
execution is not proper to enforce
a claim against the estate. The
remedy is for the probate court to
order the slae of property of the
estate and all debts should be paid
out of the proceeds of the sale.
21. Sales, Mortgages,
and Other
Encumbrances of
Property of
Decedent
a. Rule 89
Mark de Leon, JD 2001

Sec. 1. Order of sale of
personalty. Upon the
application of the executor or
administrator, and on written
notice to the heirs and other
persons interested, the court
may order the whole or a part
of the personal estate to be
sold, if it appears necessary for
the purpose of paying debts,
expenses of administration, or
legacies, or for the preservation
of the property.
Sec. 2. When court may
authorize sale, mortgage, or
other encumbrance of realty to
pay debts and legacies through
personalty not exhausted.
When the personal estate of the
deceased is not sufficient to
pay the debts, expenses of
administration, and legacies, or
where the sale of such personal
estate may injure the business
or other interests of those
interested in the estate, and
where a testator has not
otherwise made sufficient
provision for the payment of
such debts, expenses, and
legacies, the court, on the
application of the executor or
administrator and on written
notice to the heirs, devisees,
and legatees residing in the
Philippines, may authorize the
executor or administrator to
sell, mortgage, or otherwise
encumber so much as may be
necessary of the real estate, in
lieu of personal estate, for the
purpose of paying such debts,
expenses, and legacies, if it
clearly appears that such sale,
mortgage, or encumbrances
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71
would be beneficial to the
persons interested; and if a
part cannot be sold,
mortgaged, or otherwise
encumbered without injury to
those interested in the
remainder, the authority may
be for the sale, mortgage, or
other encumbrance of the
whole of such real estate, or so
much thereof as is necessary or
beneficial under the
circumstances.
When real property may be sold
ahead of personal property to pay
debts and legacies (instances when
application for authority to sell
requires written notice only to
resident distributees)
.1 personal estate of the deceased
is not sufficient to pay the
debts, expenses of
administration, and legacies, or
.2 where the sale of such personal
estate may injure the business
or other interests of those
interested in the estate, and
.3 where a testator has not
otherwise made sufficient
provision for the payment of
such debts, expenses, and
legacies
But if the sale is purportedly
“beneficial” to the distributees (i.e.
not among the above instances),
notice must be to all the
distributees and creditors,
whether resident or not. (Rule 89
Sec. 4)
Sec. 3. Persons interested
may prevent such sale, etc., by
giving bond. No such authority
to sell, mortgage, or otherwise
Mark de Leon, JD 2001

encumber real or personal
estate shall be granted if any
person interested in the estate
gives a bond, in a sum to be
fixed by the court, conditioned
to pay the debts, expenses of
administration, and legacies
within such time as the court
directs; and such bond shall be
for the security of the
creditors, as well as of the
executor or administrator, and
may be prosecuted for the
benefit of either.
Only a person interested in the
estate may oppose the sale of
estate property, but he must post a
bond.
Sec. 4. When court may
authorize sale of estate as
beneficial to interested
persons. Disposal of proceeds.
When it appears that the sale
of the whole or a part of the
real or personal estate, will be
beneficial to the heirs,
devisees, legatees, and other
interested persons, the court
may, upon application of the
executor or administrator and
on written notice to the heirs,
devisees and legatees who are
interested in the estate to be
sold, authorize the executor or
administrator to sell the whole
or a part of said estate,
although not necessary to pay
debts, legacies, or expenses of
administration; but such
authority shall not be granted
if inconsistent with the
provisions of a will. In case of
such sale, the proceeds shall be
assigned to the persons
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72
entitled to the estate in the
proper proportions.
Sec. 5. When court may
authorize sale, mortgage, or
other encumbrance of estate to
pay debts and legacies in other
countries. When the sale of
personal estate, or the sale,
mortgage, or other
encumbrance of real estate is
not necessary to pay the debts,
expenses of administration, or
legacies in the Philippines, but
it appears from records and
proceedings of a probate court
in another country that the
estate of the deceased in such
other country is not sufficient
to pay the debts, expenses of
administration, and legacies
there, the court here may
authorize the executor or
administrator to sell the
personal estate or to sell,
mortgage, or otherwise
encumber the real estate for
the payment of debts or
legacies in the other country, in
the same manner as for the
payment of debts or legacies in
the Philippines.
Sec. 6. When court may
authorize sale, mortgage, or
other encumbrance of realty
acquired on execution or
foreclosure. The court may
authorize an executor or
administrator to sell, mortgage,
or otherwise encumber real
estate acquired by him on
execution or foreclosure sale,
under the same circumstances
and under the same regulations
as prescribed in this rule for
the sale, mortgage, or other
Mark de Leon, JD 2001
 73

encumbrance of other real (c) If the court requires it,

estate. the executor or administrator
shall give an additional bond,
Sec. 7. Regulations for
in such sum as the court
granting authority to sell,
directs, conditioned that such
mortgage, or otherwise
executor or administrator will
encumber estate. The court
account for the proceeds of the
having jurisdiction of the estate
sale, mortgage, or other
of the deceased may authorize
encumbrance;
the executor or administrator
to sell personal estate, or to (d) If the requirements in
sell, mortgage, or otherwise the preceding subdivisions of
encumber real estate; in cases this section have been complied
provided by these rules and with, the court, by order stating
when it appears necessary or such compliance, may
beneficial, under the following authorize the executor or
regulations: administrator to sell, mortgage,
or otherwise encumber, in
(a) The executor or
proper cases, such part of the
administrator shall file a
estate as is deemed necessary,
written petition setting forth
and in case of sale the court
the debts due from the
may authorize it to be public or
deceased, the expenses of
private, as would be most
administration, the legacies,
beneficial to all parties
the value of the personal
concerned. The executor or
estate, the situation of the
administrator shall be
estate to be sold, mortgaged, or
furnished with a certified copy
otherwise encumbered, and
of such order;
such other facts as show that
the sale, mortgage, or other (e) If the estate is to be
encumbrance is necessary or sold at auction, the mode of
beneficial; giving notice of the time and
place of the sale shall be
(b) The court shall
governed by the provisions
thereupon fix a time and place
concerning notice of execution
for hearing such petition, and
sale;
cause notice stating the nature
of the petition, the reason for (f) There shall be recorded in
the same, and the time and the registry of deeds of the
place of hearing, to be given province in which the real
personally or by mail to the estate thus sold, mortgaged, or
persons interested, and may otherwise encumbered is
cause such further notice to be situated, a certified copy of the
given, by publication or order of the court, together
otherwise, as it shall deem with the deed of the executor or
proper; administrator for such real
estate, which shall be as valid

Remedial Law Reviewer Mark de Leon, JD 2001


as if the deed had been
executed by the deceased in his
lifetime.
Sec. 8. When a court may
authorize conveyance or realty
which deceased contracted to
convey. Notice. Effect of deed.
Where the deceased was in his
lifetime under contract,
binding in law, to deed real
property, or an interest therein,
the court having jurisdiction of
the estate may, on application
for that purpose, authorize the
executor or administrator to
convey such property according
to such contract, or with such
modifications as are agreed
upon by the parties and
approved by the court; and if
the contract is to convey real
property to the executor or
administrator, the clerk of the
court shall execute the deed.
The deed executed by such
executor, administrator,
clerk of court shall be as
effectual to convey the property
as if executed by the deceased
in his lifetime; but no such
conveyance shall be authorized
until notice of the application
for that purpose has been given
personally or by mail to all
persons interested, and such
further notice has been given,
by publication or otherwise, as
the court deems proper; nor if
the assets in the hands of the
executor or administrator will
thereby be reduced so as to
prevent a creditor from
receiving his full debt or
diminish his dividend.
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Sec. 9. When court may
authorize conveyance of lands
which deceased held in trust.
Where the deceased in his
lifetime held real property in
trust for another person, the
court may, after notice given as
required in the last preceding
section, authorize the executor
or administrator to deed such
property to the person, or his
executor or administrator, for
whose use and benefit it was so
held; and the court may order
the execution of such trust,
whether created by deed or by
law.
b. Cases
Godoy v. Orellano, 42 Phil. 347
(1921) The court has exclusive
jurisdiction to authorize the sale of
properties of the estate. A power
of attorney executed by the heirs
in favor of the administrator,
without authority of court, has no
or
legal effect. A sale by an
administrator of the personal
property of the estate, without the
authority of an order of court, or of
a will, or under an order of court
which is void for want of
jurisdiction, does not confer on the
purchaser a title.
Estate of Gamboa v. Floranza, 12
Phil. 191 (1908) The probate court
has no power to order the sale of a
specific piece of real estate for the
purpose of paying a mortgage debt
which is a lien thereon. It may be
that the court would have
authority to sell the property,
subject to the mortgage lien, for
the purpose of paying other debts
of the estate, but there is nothing
Mark de Leon, JD 2001

giving the court authority to sell it
for the purpose of paying that
specific debt. An order made by
the probate court for the sale of
real property of the estate is void
when no notice of the hearing
upon the petition for such sale is
given. The sale made pursuant to
such order is also void.
CFI of Rizal v. CA, 106 SCRA 114
(1981) Sale of estate property may
not be disapproved on the sole
ground that there is a higher offer.
For a person to be able to
intervene in an administration
proceeding concerning the estate
of a deceased person, it is
necessary for him to have an
interest in such estate. A residing outside the Philippines.
prospective buyer of estate
property is not an interested party
in the estate and has no right to
intervene either in the proceedings
brought in connection with the
estate or in the settlement of the
succession. Lastly, to prevent sale
of estate property, the oppositor
must post a bond.
Jaroda v. Cusi, 28 SCRA 1008
(1969) If even to sell for valuable
consideration property of the
estate requires prior written notice
of the application to the
distributees, such notice is equally,
if not more, indispensable for
disposing gratuitously of assets of
the decedent in favor of strangers.
An order approving a contract
without notice to the distributees
is void.
Bonaga v. Soler, 2 SCRA 755
(1961)
Facts: Administrator sells land
without notice to the heirs of the
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75
hearing of the application to sell.
Some of the heirs were in Spain
and never got their share of the
proceeds. After the WWII, new
administrator is appointed who
questions the sale.
Held: A sale of properties of an
estate as beneficial to the
interested parties must comply
with the requisites of the fixing of
the time and place of hearing for
an application to sell, and the
notice thereof to the heirs. Without
them, the authority to sell, the sale
itself, and the order approving it,
would be null and void ab initio.
The rule does not distinguish
between heirs residing in and
Its requirements should apply
regardless of the place of
residence of those required to be
notified under said rule.
The contention that the sale was
made under now §2, Rule 89
(wherein notice is required only to
those heirs, etc., residing in the
Philippines), is not substantiated
by the record. Neither the deed of
sale, nor the orders issued by the
probate court in connection
therewith, show whether, as
required by said §2, the personal
properties were insufficient to pay
the debts and expenses of
administration. There is not even a
showing that the sale was made
for the purpose of paying debts or
expenses of administration (or
legacies), a condition which
circumscribes the applicability of
that section. On the face of the
reamended complaint at any rate,
it does not appear that the
contested sale was one under said
Mark de Leon, JD 2001

§2; and the same can not be
invoked to sustain the motion to
dismiss.
A decedent's representative
(administrator) is not estopped
from questioning the validity of his
own void deed purporting to
convey land; and if this be true of
the administrator as to his own
acts, a fortiori, his successor can
not be estopped to question the
acts of hie predecessor that are
not conformable to law.
22. Distribution and
Partition of the
Estate
a. Rule 90
Sec. 1. When order for
distribution of residue made.
When the debts, funeral
charges, and expenses of
administration, the allowance
to the widow, and inheritance
tax, if any, chargeable to the
estate in accordance with law,
have been paid, the court, on
the application of the executor
or administrator, or of a person
interested in the estate, and
after hearing upon notice, shall
assign the residue of the estate
to the persons entitled to the
same, naming them and the
proportions, or parts, to which
each is entitled, and such
person may demand and
recover their respective shares
from the executor or
administrator, or any other
person having the same in his
possession. If there is a equitable to the court and not
controversy before the court as
to who are the lawful heirs of
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76
the deceased person or as to
the distributive shares to which
each person is entitled under
the law, the controversy shall
be heard and decided as in
ordinary cases.
No distribution shall be
allowed until the payment of
the obligations above
mentioned has been made or
provided for, unless the
distributees, or any of them,
give a bond, in a sum to be
fixed by the court, conditioned
for the payment of said
obligations within such time as
the court directs.
Sec. 2. Questions as to
advancement to be determined.
Questions as to advancement
made, or alleged to have been
made, by the deceased to any
heir may be heard and
determined by the court having
jurisdiction of the estate
proceedings; and the final
order of the court thereon shall
be binding on the person
raising the questions and on
the heir.
Sec. 3. By whom expenses of
partition paid. If at the time of
the distribution the executor or
administrator has retained
sufficient effects in his hands
which may lawfully be applied
for the expenses of partition of
the properties distributed, such
expenses of partition may be
paid by such executor or
administrator when it appears
inconsistent with the intention
of the testator; otherwise, they
Mark de Leon, JD 2001

shall be paid by the parties in
proportion to their respective
shares or interest in the
premises, and the
apportionment shall be settled
and allowed by the court, and,
if any person interested in the
partition does not pay his
proportion or share, the court
may issue an execution in the
name of the executor or
administrator against the party
not paying for the sum
assessed.
Sec. 4. Recording the order
of partition of estate. Certified
copies of final orders and
judgments of the court relating
to the real estate or the
partition thereof shall be
recorded in the registry of
deeds of the province where the
property is situated.
b. Cases
Gatmaitan v. Medina, 109 Phil. 108
(1960) Partial partition and
distribution may be had only after
posting of a bond and after the
inventory and appraisal must has
been approved, notices for
presentation of claims have been
published, the period for
presentation of claims elapsed.
Torres v. Encarnacion, 89 Phil. 678
(1951)
Facts: Project of partition includes
land possessed and claimed by the
heirs of an heir. Such heirs won an
execution of the partition before
the SC. Such heirs now seek to
exclude the land in their
possession.
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77
Held: Where a partition had not
only been approved and thus
become a judgment of the court,
but distribution of the estate in
pursuance of such partition had
fully been carried out, and the
heirs had received the property
assigned to them, they are
precluded from subsequently
attacking its validity or any part of
it. Where a piece of land has been
included in a partition, and there is
no allegation that the inclusion
was effected through improper
means or without the claimant's
knowledge, the partition barred
any further litigation on the title to
said land, and operated to bring
the property under the control and
jurisdiction of the court for proper
disposition according to the tenor
of the partition.
Lopez v. Lopez, 68 Phil. 227 (1939)
Facts: A person filed a petition in
the intestate proceedings to be
adjudged as the universal heiress
of the deceased. There were
allegations that she was an
acknowledged natural child of a
deceased, but there was no
specific prayer that she be
declared an heir. This petition was
opposed by the nephews and
nieces. Probate court eventually
declares her as an heir.
Held: A person claiming to be an
acknowledged natural child of a
deceased need not maintain a
separate action for recognition but
may simply intervene in the
intestate proceedings, by alleging
and proving therein his or her
status as such, and claiming
accordingly the right to share in
the inheritance.
Mark de Leon, JD 2001

Inasmuch as the recognition of the
status of the petitioner as a natural
child is a prerequisite to her right
or heirship, her prayer that she be
declared universal heirs implies a
like prayer that she be recognized
as an acknowledged natural child.
Furthermore, the prayer for relief,
though part of the pleading, is not
part of the cause of action or
defense alleged therein, and the
pleader is entitled to as much
relief as the facts duly pleaded
may warrant.
Oppositors claim that they had no
notice either of the petition for the
declaration of heirs or of the date
set for the hearing thereof. We find
in the record no evidence
affirmatively showing that they
had no such notice; therefore, the
presumption of regularity of
proceedings should stand. In the
motion for reconsideration filed by
them, the lack of notice is alleged;
but the motion is not even verified.
Besides, according to the record
Attorney Simplicio B. Peña was the
counsel for both the administrator
and the oppositors. The petition
for declaration of heirs, although
signed by Attorney Simplicio B.
Peña as "abogado del
administrador", was, in fact, a
petition filed in behalf of the
oppositors as their right to
succession is therein asserted and
prayed for. Under these
circumstances, there exists
sufficient ground for holding, as
we do hold, that the oppositors had
notice of the petition as well as of
the hearing where the said
attorney was present.
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78
Imperial v. Muñoz, 58 SCRA 678
(1974)
Facts: Probate court approved
project of partition where widower
awarded 5/8 of the estate, and
adopted daughter, 3/8. Nearly 2
months later, administrator-
widower seeks to correct the
sharing to ¾ widower and ¼
adopted daughter. Probate court
grants the correction.
Held: An order which determines
the distributive shares of the heirs
is appealable and not interlocutory.
If not appealed within the 30-day
reglementary period, it becomes
final. An erroneous decree or
judgment although granted
without legal authority and
contrary to the express provision
of the statute, is not void. Here, as
no appeal was taken, the decree
must be conceded to have full
force and effect. An erroneous
decree is not a void decree.
Timbol v. Cano, 1 SCRA 1271
(1961) The probate court loses
jurisdiction of an estate only after
the payment of all the debts and
the remainder delivered to the
distributees. The probate court
approving a contract has the
power to order its revocation or
reduction.
Solivio v. CA, 182 SCRA 119 (1990)
It is the order of distribution
directing the delivery of the
residue of the estate to the
distributees, not approval of
project of partition, that brings to
a close the estate proceedings.
Prior to this, an excluded heir can
and should move to set aside the
declaration of heirs. A separatee
Mark de Leon, JD 2001

action is improper. The remedy in
case of denial of the motion for
reopening is review on certiorari
to the CA.
de Leon: I think the proper remedy
is appeal (Rule 109 Sec. 1 [b])
23. Escheats
a. Rule 91
Sec. 1. When and by whom
petition filed. When a person
dies intestate, seized of real or
personal property in the
Philippines, leaving no heir or
person by law entitled to the
same, the Solicitor General or
his representative in behalf of
the Republic of the Philippines,
may file a petition in the Court
of First Instance of the
province where the deceased
last resided or in which he had
estate, if he resided out of the
Philippines, setting forth the
facts, and praying that the
estate of the deceased be
declared escheated.
Sec. 2. Order for hearing. If
the petition is sufficient in
form and substance, the court,
by an order reciting the
purpose of the petition, shall fix
a date and place for the
hearing thereof, which date
shall be not more than six (6)
months after the entry of the
order, and shall direct that a
copy of the order be published
before the hearing at least once
a week for six (6) successive
weeks in some newspaper of
general circulation published
in the province, as the court
shall deem best.
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Sec. 3. Hearing and
judgment. Upon the
satisfactory proof in open court
on the date fixed in the order
that such order has been
published as directed and that
the person died intestate,
seized of real or personal
property in the Philippines,
leaving no heir or person
entitled to the same, and no
sufficient cause being shown to
the contrary, the court shall
adjudge that the estate of the
deceased in the Philippines,
after the payment of just debts
and charges, shall escheat; and
shall, pursuant to law, assign
the personal estate to the
municipality or city where he
last resided in the Philippines,
and the real estate to the
municipalities or cities,
respectively, in which the same
is situated. If the deceased
never resided in the
Philippines, the whole estate
may be assigned to the
respective municipalities or
cities where the same is
located. Such estate shall be
for the benefit of public
schools, and public charitable
institutions and centers in said
municipalities or cities.
The court, at the instance of
an interested party, or on its
own motion, may order the
establishment of a permanent
trust, so that only the income
from the property shall be
used.
Sec. 4. When and by whom
claim to estate filed. If a
devisee, legatee, heir, widow,
Mark de Leon, JD 2001
 80

widower or other person premature to award the estate to

entitled to such estate appears
and files a claim thereto with
the court within five (5) years
from the date of such
judgment, such person shall
have possession of and title to
the same, or if sold, the
municipality or city shall be
accountable to him for the
proceeds, after deducting
reasonable charges for the care
of the estate; but a claim not
made within said time shall be
forever barred.
Sec. 5. Other actions for
escheat. Until otherwise
provided by law, actions for
reversion or escheat of
properties alienated in
violation of the Constitution or
of any statute shall be governed
by this rule, except that the
action shall be instituted in the
province where the land lies in
whole or in part.
b. Cases
De Guzman v. Sevilla, 47 Phil. 991
(1924)
Facts: Decedent was an
acknowledged natural child (father
was married to someone else). The
law at that time provides that the
intestate heirs of an acknowledged
natural child are the parents or the
siblings. Petitioners and oppositors
are neither parents nor siblings of
the decedent. Thus, the probate
court awarded the estate to the
state.
Held: Although there are no
relatives entitled to succeed the
deceased, it is, however,
the State before the requirements
of sections 750 to 752 of the Code
of Civil Procedure are complied
with. (Case didn’t say what
sections 750 to 752 of the Code of
Civil Procedure required)
de Leon: I think it was referring to
the filing of the petition and
publication of the notice of
hearing.
In re estate of Lao Sayco, 21 Phil.
445 (1912)
Facts: Municipal Council seeks to
succeed to the intestate estate.
Opposed by nephew.
Held: The Code of Civil Procedure
provides for the procedure in
escheat proceedings
.1 municipality files a petition for
an inquisition in the premises;
.2 the court appoints a time and
place of hearing, cause a notice
to be published
.3 The notice shall recite the
substance of the facts and
request set forth in the petition,
the time and place at which
persons claiming the estate may
appear and be heard before the
court, and shall be published at
least 6 successive weeks
On record, there was no such
inquisition conducted, there was
no certified copy of the inventory.
Neither was there any showing
that no will was executed, or that
there are no relatives entitled to
inherit from him. The notice was
published only for 3, not 6, weeks
It is indispensable that the
requisites under the Code are met.

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Republic v. CFI of Manila, 165
SCRA 11 (1988) The depositary
bank of dorman accounts is a real
party in interest in the escheat
proceedings. It was the personality
to file a motion to dismiss the
escheat proceedings on the ground
of improper venue. Escheat
proceedings are actions in rem
which must be brought in the
province or city where the rem is
located. The rule concerning venue
of personal actions in civil
procedure (where any of the
principal defendants resides) is
inapplicable.
C. Guardianship
1. Rule 92: Venue
Sec. 1. Where to institute
proceedings. Guardianship of
the person or estate of a minor
or incompetent may be
instituted in the Court of First
Instance of the province, or in
the justice of the peace court of
the municipality, or in the
municipal court of the
chartered city where the minor
or incompetent person resides,
and if he resides in a foreign
country, in the Court of First
Instance of the province
wherein his property or part
thereof is situated; provided,
however, that where the value
of the property of such minor
or incompetent exceeds the
jurisdiction of the justice of the
peace or municipal court, the
proceedings shall be instituted
in the Court of First Instance.
In the City of Manila the
proceedings shall be instituted
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81
in the Juvenile and Domestic
Relations Court.
Venue of guardianship proceedings
.1 resident ward – where the ward
resides
.2 non-resident ward – where
ward’s property is situated
Jurisdiction
.1 depends on the value of the
ward’s property
.2 if in Manila – instituted Juvenile
and Domestic Relations Court
de Leon: Note that in estate
proceedings “residence” is the
physical presence of the decedent
with intent to stay indefinitely. In
guardianship “residence” is
domicile (p. 198 Herrera).
Sec. 2. Meaning of word
"incompetent." Under this rule,
the word "incompetent"
includes persons suffering the
penalty of civil interdiction or
who are hospitalized lepers,
prodigals, deaf and dumb who
are unable to read and write,
those who are of unsound
mind, even though they have
lucid intervals, and persons not
being of unsound mind, but by
reason of age, disease, weak
mind, and other similar causes,
cannot, without outside aid,
take care of themselves and
manage their property,
becoming thereby an easy prey
for deceit and exploitation.
“Incompetent” includes persons
who are
.1 suffering civil interdiction or
.2 hospitalized lepers
Mark de Leon, JD 2001

.3 prodigals
.4 deaf and dumb who are unable
to read and write
.5 of unsound mind, even though
they have lucid intervals, and
.6 by reason of age, disease, weak
mind, and other similar causes,
cannot, without outside aid,
take care of themselves and
manage their property,
becoming thereby an easy prey
for deceit and exploitation.
Sec. 3. Transfer of venue.
The court taking cognizance of
a guardianship proceeding,
may transfer the same to the
court of another province or
municipality wherein the ward
has acquired real property, if
he has transferred thereto his
bona-fide residence, and the
latter court shall have full
jurisdiction to continue the
proceedings, without requiring
payment of additional court
fees.
2. Rule 93:
Appointment of
Guardians
Sec. 1. Who may petition for
appointment of guardian for
resident. Any relative, friend, or
other person on behalf of a
resident minor or incompetent
who has no parent or lawful
guardian, or the minor himself
if fourteen years of age or over,
may petition the court having
jurisdiction for the
appointment of a general
guardian for the person or
estate, or both, of such minor
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or incompetent. An officer of
the Federal Administration of
the United States in the
Philippines may also file a
petition in favor of a ward
thereof, and the Director of
Health, in favor of an insane
person who should be
hospitalized, or in favor of an
isolated leper.
cf Rule 93 Sec. 6 for non-resident
wards
Sec. 6. When and how guardian
for nonresident appointed. Notice.
When a person liable to be put
under guardianship resides
without the Philippines but has
estate therein, any relative or
friend of such person, or any one
interested in his estate, in
expectancy or otherwise, may
petition a court having jurisdiction
for the appointment of a guardian
for the estate, and if, after notice
given to such person and in such
manner as the court deems proper,
by publication or otherwise, and
hearing, the court is satisfied that
such nonresident is a minor or
incompetent rendering a guardian
necessary or convenient, it may
appoint a guardian for such estate.
Who may petition for appointment
of guardian for
.1 resident ward
.a Any relative, friend, or other
person on behalf of a ward
who has no parent or lawful
guardian
.b the minor himself if 14 years
of age or over
.c an officer of the Federal
Administration of the US in
the Philippines may also file
a petition in favor of a ward
thereof
Mark de Leon, JD 2001

.d the Director of Health, in
favor of an insane person
who should be hospitalized,
or in favor of an isolated
leper.
.2 non-resident ward
.a any relative or friend of such
person, or
.b any one interested in his
estate, in expectancy or
otherwise
Sec. 2. Contents of petition.
A petition for the appointment
of a general guardian must
show, so far as known to the
petitioner:
(a) The jurisdictional facts;
(b) The minority or
incompetency rendering the
appointment necessary or
convenient;
(c) The names, ages, and
residences of the relatives of
the minor or incompetent, and
of the persons having him in
their care;
(d) The probable value and
character of his estate;
(e) The name of the person
for whom letters of
guardianship are prayed.
The petition shall be
verified; but no defect in the
petition or verification shall
render void the issuance of
letters of guardianship.
Sec. 3. Court to set time for
hearing. Notice thereof. When
a petition for the appointment
of a general guardian is filed,
the court shall fix a time and
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place for hearing the same, and
shall cause reasonable notice
thereof to be given to the
persons mentioned in the
petition residing in the
province, including the minor if
above 14 years of age or the
incompetent himself, and may
direct other general or special
notice thereof to be given.
de Leon: Note that there is no
publication requirement for
guardianship proceedings unlike in
estate and adoption proceedings.
However, in guardianship
proceedings for non-resident
wards, publication of notice is an
option (Rule 93 Sec. 6).
Sec. 4. Opposition to
petition. Any interested person
may, by filing a written
opposition, contest the petition
on the ground of majority of
the alleged minor, competency
of the alleged incompetent, or
the unsuitability of the person
for whom letters are prayed,
and may pray that the petition
be dismissed, or that letters of
guardianship issue to himself,
or to any suitable person
named in the opposition.
Grounds for opposition
.1 majority of the alleged minor
.2 competency of the alleged
incompetent, or
.3 unsuitability of the person for
whom letters are prayed
Sec. 5. Hearing and order
for letters to issue. At the
hearing of the petition the
alleged incompetent must be
present if able to attend, and it
Mark de Leon, JD 2001

must be shown that the
required notice has been given.
Thereupon the court shall hear
the evidence of the parties in
support of their respective
allegations, and, if the person
in question is a minor, or
incompetent it shall appoint a
suitable guardian of his person
or estate, or both, with the
powers and duties hereinafter
specified.
Note that it is the incompetent
wards, if able, who is required to
attend the guardianship hearings.
Minors wards are not required to
attend.
Sec. 6. When and how
guardian for nonresident
appointed. Notice. When a
person liable to be put under
guardianship resides without
the Philippines but has estate
therein, any relative or friend
of such person, or any one
interested in his estate, in
expectancy or otherwise, may
petition a court having
jurisdiction for the
appointment of a guardian for
the estate, and if, after notice
given to such person and in
such manner as the court
deems proper, by publication or
otherwise, and hearing, the
court is satisfied that such
nonresident is a minor or
incompetent rendering a Art. 220. The parents and those
guardian necessary or
convenient, it may appoint a
guardian for such estate.
Sec. 7. Parents as guardians.
xxx (repealed by the Arts. 225 and
220 of the Family Code)
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84
Art. 225. The father and the
mother shall jointly exercise legal
guardianship over the property of
the unemancipated common child
without the necessity of a court
appointment. In case of
disagreement, the father's decision
shall prevail, unless there is a
judicial order to the contrary.
Where the market value of the
property or the annual income of
the child exceeds P50,000, the
parent concerned shall be required
to furnish a bond in such amount
as the court may determine, but
not less than ten per centum (10%)
of the value of the property or
annual income, to guarantee the
performance of the obligations
prescribed for general guardians.
A verified petition for approval of
the bond shall be filed in the
proper court of the place where
the child resides, or, if the child
resides in a foreign country, in the
proper court of the place where
the property or any part thereof is
situated.
The petition shall be docketed as a
summary special proceeding in
which all incidents and issues
regarding the performance of the
obligations referred to in the
second paragraph of this Article
shall be heard and resolved.
The ordinary rules on guardianship
shall be merely suppletory except
when the child is under substitute
parental authority, or the guardian
is a stranger, or a parent has
remarried, in which case the
ordinary rules on guardianship
shall apply. (320a)
exercising parental authority shall
have with the respect to their
unemancipated children on wards
the following rights and duties:
(1) To keep them in their company,
to support, educate and instruct
them by right precept and good
example, and to provide for their
Mark de Leon, JD 2001

upbringing in keeping with their
means;
(2) To give them love and affection,
advice and counsel, companionship
and understanding;
(3) To provide them with moral and
spiritual guidance, inculcate in
them honesty, integrity, self-
discipline, self-reliance, industry
and thrift, stimulate their interest
in civic affairs, and inspire in them
compliance with the duties of
citizenship;
(4) To furnish them with good and
wholesome educational materials,
supervise their activities,
recreation and association with
others, protect them from bad
company, and prevent them from
acquiring habits detrimental to
their health, studies and morals;
(5) To represent them in all
matters affecting their interests;
(6) To demand from them respect
and obedience;
(7) To impose discipline on them as
may be required under the
circumstances; and
(8) To perform such other duties as
are imposed by law upon parents
and guardians. (316a)
Parents are the joint legal
guardians over the property of the
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.
If the value of the child’s property
or annual income exceeds
P50,000, the parents are still the
guardians without necessity of
court appointment, but they must
post a bond to guarantee the
performance of the obligations
prescribed for general guardians.
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85
The ordinary rules on guardianship
shall be merely suppletory except
when the child is under substitute
parental authority, or the guardian
is a stranger, or a parent has
remarried, in which case the
ordinary rules on guardianship
shall apply.
Sec. 8. Service of judgment.
Final orders or judgments
under this rule shall be served
upon the civil registrar of the
municipality or city where the
minor or incompetent person
resides or where his property or
part thereof is situated.
3. Rule 94: Bonds of
Guardians
Sec. 1. Bond to be given
before issuance of letters.
Amount. Conditions. Before a
guardian appointed enters
upon the execution of his trust,
or letters of guardianship issue,
he shall give a bond, in such
sum as the court directs,
conditioned as follows:
(a) To make and return to
the court, within three (3)
months, a true and complete
inventory of all the estate, real
and personal, of his ward which
shall come to his possession or
knowledge or to the possession
or knowledge of any other
person for him;
(b) To faithfully execute
the duties of his trust, to
manage and dispose of the
estate according to these rules
for the best interests of the
ward, and to provide for the
Mark de Leon, JD 2001

proper care, custody, and
education of the ward;
(c) To render a true and
just account of all the estate of
the ward in his hands, and of
all proceeds or interest derived
therefrom, and of the
management and disposition of
the same, at the time
designated by these rules and
such other times as the court
directs; and at the expiration of
his trust to settle his accounts
with the court and deliver and
pay over all the estate, effects,
and moneys remaining in his
hands, or due from him on such
settlement, to the person
lawfully entitled thereto;
(d) To perform all orders of
the court by him to be
performed.
Conditions of the guardian’s bond
.1 to make and return an
inventory to the court, within 3
months
.2 to faithfully execute the duties
of his trust, to manage and
dispose of the estate for the
best interests of the ward, and
to provide for the proper care,
custody, and education of the
ward;
.3 to render an account of all the
estate of the ward in his hands,
and of all proceeds or interest
derived therefrom, and of the
management and disposition of
the same, at the time
designated by these rules and
such other times as the court
directs, and at the expiration of
his trust to settle his accounts
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with the court and deliver and
pay over all the estate, effects,
and moneys remaining in his
hands, or due from him on such
settlement, to the person
lawfully entitled thereto;
.4 to perform all orders of the
court by him to be performed.
Sec. 2. When new bond may
be required and old sureties
discharged. Whenever it is
deemed necessary, the court
may require a new bond to be
given by the guardian, and may
discharge the sureties on the
old bond from further liability,
after due notice to interested
persons, when no injury can
result therefrom to those
interested in the estate.
Sec. 3. Bonds to be filed.
Actions thereon. Every bond
given by a guardian shall be
filed in the office of the clerk of
the court, and, in case of the
breach of a condition thereof,
may be prosecuted in the same
proceeding or in a separate
action for the use and benefit
of the ward or of any other
person legally interested in the
estate.
The guardian’s bond may be held
liable in the same proceeding or in
a separate action.
4. Selling and
Encumbering
Property of Ward
a. Rule 95
Sec. 1. Petition of guardian
for leave to sell or encumber
estate. When the income of an
Mark de Leon, JD 2001

estate under guardianship is
insufficient to maintain the
ward and his family, or to
maintain and educate the ward
when a minor, or when it
appears that it is for the benefit
of the ward that his real estate
or some part thereof be sold, or
mortgaged or otherwise
encumbered, and the proceeds
thereof put out at interest, or
invested in some productive
security, or in the improvement
or security of other real estate
of the ward, the guardian may
present a verified petition to
the court by which he was
appointed setting forth such
facts, and praying that an order
issue authorizing the sale or
encumbrance.
Grounds for allowing sale or
encumbrance over property of the
ward
.1 the income of the estate is
insufficient to
.a maintain the ward and his
family, or
.b to maintain and educate the
ward when a minor, or
.2 when it appears that it is for the
benefit of the ward that his real
estate or some part thereof be
sold, or mortgaged or otherwise
encumbered, and the proceeds
thereof put out at interest, or
invested in some productive
security, or
.3 in the improvement or security
of other real estate of the ward
The petition for leave to sell ward’s
property must be verified.
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Sec. 2. Order to show cause
thereupon. If it seems probable
that such sale or encumbrance
is necessary, or would be
beneficial to the ward, the
court shall make an order
directing the next of kin of the
ward, and all persons
interested in the estate, to
appear at a reasonable time
and place therein specified to
show cause why the prayer of
the petition should not be
granted.
Sec. 3. Hearing on return of
order. Costs. At the time and
place designated in the order to
show cause, the court shall
hear the proofs and allegations
of the petitioner and next of
kin, and other persons
interested, together with their
witnesses, and grant or refuse
the prayer of the petition as the
best interests of the ward
require. The court shall make
such order as to costs of the
hearing as may be just.
Sec. 4. Contents of order for
sale or encumbrance, and how
long effective. Bond. If, after
full examination, it appears
that it is necessary, or would be
beneficial to the ward, to sell or
encumber the estate, or some
portion of it, the court shall
order such sale or
encumbrance and that the
proceeds thereof be expended
for the maintenance of the
ward and his family, or the
education of the ward, if a
minor, or for the putting of the
same out at interest, or the
investment of the same as the
Mark de Leon, JD 2001

circumstances may require.
The order shall specify the
causes why the sale or
encumbrance is necessary or
beneficial, and may direct that
estate ordered sold be disposed
of at either public or private
sale, subject to such conditions
as to the time and manner of
payment, and security where a
part of the payment is deferred,
as in the discretion of the court
are deemed most beneficial to
the ward. The original bond of
the guardian shall stand as
security for the proper
appropriation of the proceeds
of the sale, but the judge may,
if deemed expedient, require an
additional bond as a condition
for the granting of the order of
sale. No order of sale granted
in pursuance of this section
shall continue in force more
than one (1) year after granting
the same, without a sale being
had.
A court order allowing sale of the
ward’s property is effective for at
most 1 year.
Sec. 5. Court may order
investment of proceeds and
direct management of estate.
The court may authorize and
require the guardian to invest
the proceeds of sales or
encumbrances, and any other
of his ward's money in his
hands, in real estate or
otherwise, as shall be for the
best interest of all concerned,
and may make such other
orders for the management,
investment, and disposition of
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88
the estate and effects, as
circumstances may require.
b. Cases
Lindain v. CA, 212 SCRA 725
(1992) A parent, acting merely as
the legal adminisntrator of the
property of his minor childrent,
does not have the power to dispose
of or alienate the property of said
children without judicial approval,
regardless of amount.
Maneclang v. Baun, 208 SCRA 179
(1992) Though parents are the
legal administrator of their
children, it does not follow that
notice to the parent is notice to the
children. To properly notify minor
children, a guardian ad litem must
be appointed and notice served on
him.
5. General Powers and
Duties of Guardians
a. Rule 96
Sec. 1. To what guardianship
shall extend. A guardian
appointed shall have the care
and custody of the person of his
ward, and the management of
his estate, or the management
of the estate only, as the case
may be. The guardian of the
estate of a nonresident shall
have the management of all the
estate of the ward within the
Philippines, and no court other
than that in which such
guardian was appointed shall
have jurisdiction over the
guardianship.
Scope of guardianship, either
Mark de Leon, JD 2001

.1 person of his ward and
management of the ward’s
estate, or
.2 management of the ward’s
estate only
Sec. 2. Guardian to pay
debts of ward. Every guardian
must pay the ward's just debts
out of his personal estate and
the income of his real estate, if
sufficient; if not, then out of his
real estate upon obtaining an
order for the sale or
encumbrance thereof.
Sec. 3. Guardian to settle
accounts, collect debts, and
appear in actions for ward. A
guardian must settle all
accounts of his ward, and
demand, sue for, and receive all
debts due him, or may, with the
approval of the court,
compound for the same and
give discharges to the debtor,
on receiving a fair and just
dividend of the estate and
effects; and he shall appear for
and represent his ward in all
actions and special
proceedings, unless another
person be appointed for that
purpose.
Sec. 4. Estate to be managed
frugally, and proceeds applied
to maintenance of ward. A
guardian must manage the
estate of his ward frugally and
without waste, and apply the
income and profits thereon, so
far as may be necessary, to the
comfortable and suitable
maintenance of the ward and
his family, if there be any; and
if such income and profits be
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insufficient for that purpose,
the guardian may sell or
encumber the real estate, upon
being authorized by order so to
do, and apply so much of the
proceeds as may be necessary
to such maintenance.
Sec. 5. Guardian may be
authorized to join in partition
proceedings after hearing. The
court may authorize the
guardian to join in an assent to
a partition of real or personal
estate held by the ward jointly
or in common with others, but
such authority shall only be
granted after hearing, upon
such notice to relatives of the
ward as the court may direct,
and a careful investigation as
to the necessity and propriety
of the proposed action.
Sec. 6. Proceedings when
person suspected of
embezzling or concealing
property of ward. Upon
complaint of the guardian or
ward, or of any person having
actual or prospective interest
in the estate of the ward as
creditor, heir, or otherwise,
that anyone is suspected of
having embezzled, concealed,
or conveyed away any money,
goods, or interest, or a written
instrument, belonging to the
ward or his estate, the court
may cite the suspected person
to appear for examination
touching such money, goods,
interest, or instrument, and
make such orders as will secure
the estate against such
embezzlement, concealment or
conveyance.
Mark de Leon, JD 2001

Note that similar to a probate
court, the guardianshp court has
no authority to order delivery of
the ward’s property in the
possession of another who claims
an adverse interest. A separate
ordinary action is required [Cui v.
Piccio, 91 Phil 712 (1952)].
Sec. 7. Inventories and
accounts of guardians, and
appraisement of estates. A
guardian must render to the
court an inventory of the estate
of his ward within three (3)
months after his appointment,
and annually after such
appointment an inventory and
account, the rendition of any of
which may be compelled upon
the application of an interested
person. Such inventories and
accounts shall be sworn to by
the guardian. All the estate of
the ward described in the first
inventory shall be appraised. In
the appraisement the court
may request the assistance of
one or more of the inheritance
tax appraisers. And whenever
any property of the ward not
included in an inventory
already rendered is discovered,
or succeeded to, or acquired by
the ward, like proceedings shall
be had for securing an
inventory and appraisement
thereof within three (3) months
after such discovery,
succession, or acquisition.
Sec. 8. When guardian's
accounts presented for
settlement. Expenses and
compensation allowed. Upon
the expiration of a year from
the time of his appointment,
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and as often thereafter as may
be required, a guardian must
present his account to the
court for settlement and
allowance. In the settlement of
the account, the guardian,
other than a parent, shall be
allowed the amount of his
reasonable expenses incurred
in the execution of his trust
and also such compensation for
his services as the court deems
just, not exceeding fifteen per
centum of the net income of
the ward.
b. Case
Cui v. Piccio, 91 Phil.712 (1952)
GR: The guardianshp court has no
authority to order delivery of the
ward’s property in the possession
of another who claims an adverse
interest. A separate ordinary
action is required. Exception: in
extreme cases wehre property
clear and indisputable belongs to
the ward, or where his title thereot
has already been judicially
decided, may the court direct its
delivery to the guardian.
6. Rule 97:
Termination of
Guardianship
Instances of termination of
guardianship
.1 judicial determination of the
competency of the ward
.2 removal of the guardian
.3 resignation of the guardian
.4 marriage or voluntary
emancipation of a minor ward
Mark de Leon, JD 2001
 91

.5 judicial discharge upon ward’s guardian becomes insane or

application that the otherwise incapable of
guardianship is no longer discharging his trust or
necessary unsuitable therefor, or has
Sec. 1. Petition that wasted or mismanaged the
competency of ward be estate, of failed for thirty (30)
adjudged, and proceedings days after it is due to render an
thereupon. A person who has account or make a return, the
been declared incompetent for court may, upon reasonable
any reason, or his guardian, notice to the guardian, remove
relative, or friend, may petition him, and compel him to
the court to have his present surrender the estate of the
competency judicially ward to the person found to be
determined. The petition shall lawfully entitled thereto. A
be verified by oath, and shall guardian may resign when it
state that such person is then appears proper to allow the
competent. Upon receiving the same; and upon his resignation
petition, the court shall fix a or removal the court may
time for hearing the questions appoint another in his place.
raised thereby, and cause Grounds for removal of a guardian
reasonable notice thereof to be
.1 insanity
given to the guardian of the
person, so declared .2 incapable of discharging his
incompetent, and to the ward. trust
On the trial, the guardian or .3 unsuitable therefore
relatives of the ward, and, in
the discretion of the court, any .4 wasted or mismanaged the
other person, may contest the estate
right to the relief demanded, .5 failed to render an account or
and witnesses may be called make a return for 30 days after
and examined by the parties or it is due
by the court on its own motion.
Sec. 3. Other termination of
If it be found that the person is
guardianship. The marriage or
no longer incompetent, his
voluntary emancipation of a
competency shall be adjudged
minor ward terminates the
and the guardianship shall
guardianship of the person of
cease.
the ward, and shall enable the
Petition for determination of minor to administer his
ward’s competency must be property as though he were of
verified. age, but he cannot borrow
money or alienate or encumber
real property without the
Sec. 2. When guardian consent of his father or mother,
removed or allowed to resign. or guardian. He can sue and be
New appointment. When a sued in court only with the

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assistance of his father, mother
or guardian. The guardian of
any person may be discharged
by the court when it appears,
upon the application of the
ward or otherwise, that the
guardianship is no longer
necessary.
cf Art. 234 and 236 FC
Art. 234. Emancipation takes place
by the attainment of majority.
Unless otherwise provided,
majority commences at the age of
eighteen years (as amended by RA
6809).
Art. 236. Emancipation shall
terminate parental authority over
the person and property of the
child who shall then be qualified
and responsible for all acts of civil
life, save the exceptions
established by existing laws in
special cases.
Contracting marriage shall require
parental consent until the age of
twenty-one.
Nothing in this Code shall be
construed to derogate from the
duty or responsibility of parents
and guardians for children and
wards below twenty-one years of
age mentioned in the second and
third paragraphs of Article 2180 of
the Civil Code. (as amended by RA
6809)
Sec. 4. Record to be kept by
the justice of the peace or
municipal judge. When a his real estate should be sold, and
justice of the peace or
municipal court takes
cognizance of the proceedings
in pursuance of the provisions
of these rules, the record of the
proceedings shall be kept as in
the court of first instance.
Sec. 5. Service of judgment.
Final orders or judgments
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under this rule shall be served
upon the civil registrar of the
municipality or city where the
minor or incompetent person
resides or where his property or
part thereof is situated.
7. Cases
Francisco v. CA, 127 SCRA 371
(1984) Protection of the ward is
more than sufficient reason for the
immediate execution pending
appeal of a judgment for the
replacement of the first guardian.
While age alone is not a
controlling criterion in
determining a person's fitness or
qualification to be appointed or be
retained as guardian, it may be a
factor for consideration.
Tavera v. El Hogar Fil., Inc., 98
Phil. 481 (1956) The petition for
the sale of real property belonging
to the estate of a minor must be
verified but lack of verification is
not a jurisdictional defect.
Furthermore, it is not necessary
for a grant of authority to the
guardian to sell the estate of the
ward to state that the income from
the property "is insufficient to
maintain the ward and his family
or to maintain or educate the ward
when a minor." It is enough that it
is for the benefit of the ward that
the proceeds thereof put out at
interest, or invested in some
productive security.
Paciente v. Dacuycuy, 114 SCRA
924 (1982)
Facts: Widow sold land of an
estate. Widow later appointed
guardian of her 2 minor children.
Mark de Leon, JD 2001

Vendee sells to Paciente. Paciente
mortgages to Consolidated Bank.
RoD notifies guardianship court of
the transfers. Guardianship court
orders cancellation of Paciente’s
TCT and orders issuance of new
one in favor Paciente and the 2
minor children with 1/3 share
each.
Held: While the Supreme Court
has ruled that where title to any
property said to be embezzled,
concealed or conveyed is in
question, the determination of said
title or right whether in favor of
the ward or in favor of the person
said to have embezzled, concealed
or conveyed the property must be
determined in a separate ordinary
action and not in guardianship
proceedings, it was also
emphasized that if the right or title
of the ward to the property is clear
and indisputable the court may
issue an order directing its
delivery or return. Where title to
any property said to be embezzled,
concealed or conveyed is in
dispute, the determination of said
title or right whether 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 a guardianship
proceedings."
In the present case the right or
title of the two minors to the
property is clear and indisputable.
They inherited a part of the land in
question from their father. The sale
of this land, where they are co-
owners, by their mother without
the authority of the guardianship
court is illegal. The respondent
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court in issuing the order to the
Register of Deeds to cancel the
TCT of Paciente and to order the
issuance of a new title to include
the minors as co-owners with the
petitioner, did not exceed its
jurisdiction but merely exercised
its duty to protect persons under
disability.
Gamboa v. Lopez Vito, 62 Phil. 550
(1935)
Facts: Guardian leases the land to
the creditor without court
approval. Thereafter, the creditor
sought court approval of the lease.
Court awarded the lease contract
to somebody else. Creditor
appeals. Pending appeal, creditor
took possession. Court order
creditor to return possession to
guardian.
Held: The leasing of a realty
belonging to the guardianship of a
minor forms part of the acts of
administration of the guardian
who, in said administration, is
subject to the direction,
supervision and jurisdiction of the
court having cognizance of the
guardianship. Hence, the court has
jurisdiction to pass upon the
application for approval of the
lease contract. The order denying
such approval is appealable.
Moran: A guardian has no power
to lease realty for more than 6
years, for that would not be a mere
act of adminstration. (p. 728)
de Leon: Among the authorities
cited by Moran is Gamboa v. Lopez
Vito. However, the case expressly
stated that it was resolving the
case “without anticipating whether
the respondent guardian could
Mark de Leon, JD 2001
 94

enter into a valid contract of lease reasonable notice to the guardian,

for six (6) years without the remove him, and compel him to
surrender the estate of the ward to
authority or approval of the court the person found to be lawfully
having cognizance of the entitled thereto. A guardian may
guardianship.” resign when it appears proper to
allow the same; and upon his
Bengzon v. PNB, 3 SCRA 751 resignation or removal the court
(1961) may appoint another in his place.
Facts: The ward was the mother of A guardian cannot be legally
a veteran who died in WWII. She removed from office except for the
was a beneficiary of accrued cause therein mentioned. To the
insurance benefits and to a extent that a court uses its
monthly death compensation for discretion in appraising whether or
the rest of her life, all extended by not a person is unsuitable or
the United States Veterans incapable of discharging his trust,
Administration. PNB was that much it can be said that
appointed as her guardian. 2 years removal is discretionary. But the
and 7 months later, upon motion, discretion must be exercised
the court removed PNB and within the law, and when the latter
appointed the ward’s son, has laid down the grounds for
Francisco Bengson, as her removal of a guardian, discretion
guardian on the grounds that the is limited to inquiring as to the
ward was living with Francisco existence of any of those grounds.
Bengson in the latter's capacity as
No pretense is made in this case,
personal guardian; that the
and nothing in the record would
appointment of Bengson in place
indicate, that there was any legal
of the PNB would save the
ground upon which the removal of
compensation being paid to PNB;
the PNB as guardian was founded.
and that the transfer to the PNB
Neither in Francisco Bengson's
branch at San Fernando, La Union
manifestation nor in the orders of
would be more convenient to all
the lower court is it made to
concerned for the proper
appear that the Philippine National
administration of the estate. PNB
Bank had become incapable of
and Veteran’s Administration
discharging its trust or was
appeals.
unsuitable therefor, or that it had
Held: Sec. 2, Rule 97 of the committed anything which the
current Rules provides Rules includes as grounds for
Sec. 2. When guardian removed or removal. On the contrary, it
allowed to resign. New appears incontestable that all
appointment. When a guardian throughout, the PNB has
becomes insane or otherwise discharged its trust satisfactorily.
incapable of discharging his trust
or unsuitable therefor, or has
That it has received commissions
wasted or mismanaged the estate, allowed by law for its services is
of failed for thirty (30) days after it no ground to remove it, especially
is due to render an account or since the Bank's commission
make a return, the court may, upon

Remedial Law Reviewer Mark de Leon, JD 2001


averages no more than P100 a
year and is offset by interest on
the ward's deposit and the sum
that the son would probably have
to disburse in bond premiums
Neither is it sufficient to base
removal on the unsubstantiated
opinion that it would be more
beneficial to the interests of the
ward and more convenient for the
administration of the estate. A
guardian should not be removed
except for the most cogent
reasons; otherwise, the removal is
unwarranted and illegal.
Moran: Conflict of interest is
sufficient ground for the removal
of a guardian, premised on the
logic that antagonistic interests
would render a guardian
unsuitable for the trust.
D. Rule 98: Trustees
Sec. 1. Where trustee
appointed. A trustee necessary
to carry into effect the
provisions of a will or written
instrument shall be appointed
by the Court of First Instance
in which the will was allowed if
it be a will allowed in the
Philippines, otherwise by the
Court of First Instance of the
province in which the property,
or some portion thereof,
affected by the trust is situated.
Venue of appointment of a trustee
.1 if required by a probated will –
RTC wqhere the will was
probated
.2 Otherwise – province where the
property or some part thereof is
located
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Sec. 2. Appointment and
powers of trustee under will.
Executor of former trustee
need not administer trust. If a
testator has omitted in his will
to appoint a trustee in the
Philippines, and if such
appointment is necessary to
carry into effect the provisions
of the will, the proper Court of
First Instance may, after notice
to all persons interested,
appoint a trustee who shall
have the same rights, powers,
and duties, and in whom the
estate shall vest, as if he had
been appointed by the testator.
No person succeeding to a trust
as executor or administrator of
a former trustee shall be
required to accept such trust.
The executor or administrator of
the estate of a deceased trustee is
not required to accept the trust.
Sec. 3. Appointment and
powers of new trustee under
written instrument. When a
trustee under a written
instrument declines, resigns,
dies, or is removed before the
objects of the trust are
accomplished, and no adequate
provision is made in such
instrument for supplying the
vacancy, the proper Court of
First Instance may, after due
notice to all persons interested,
appoint a new trustee to act
alone or jointly with the others,
as the case may be. Such new
trustee shall have and exercise
the same powers, rights, and
duties as if he had been
originally appointed, and the
trust estate shall vest in him in
Mark de Leon, JD 2001

like manner as it had vested or
would have vested, in the
trustee in whose place he is
substituted; and the court may
order such conveyance to be
made by the former trustee or
his representatives, or by the
other remaining trustees, as
may be necessary or proper to
vest the trust estate in the new
trustee, either alone or jointly
with the others.
Sec. 4. Proceedings where
trustee appointed abroad.
When land in the Philippines is
held in trust for persons
resident here by a trustee who
derives his authority from
without the Philippines, such
trustee shall, on petition filed
in the Court of First Instance of
province where the land is
situated, and after due notice
to all persons interested, be
ordered to apply to the court
for appointment as trustee; and
upon his neglect or refusal to
comply with such order, the
court shall declare such trust
vacant, and shall appoint a new
trustee in whom the trust
estate shall vest in like manner
as if he had been originally
appointed by such court.
A trustee appointed abroad for
Philippine land for residents may
be required, upon petition in the
RTC wehre the land is situated, to
apply for court appointment as
trustee. Failure to do so when
required results in the trust being
declared vacant and new trustee
being appointed.
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Sec. 5. Trustee must file
bond. Before entering on the
duties of his trust, a trustee
shall file with the clerk of the
court having jurisdiction of the
trust a bond in the amount
fixed by the judge of said court,
payable to the Government of
the Philippines and sufficient
and available for the protection
of any party in interest, and a
trustee who neglects to file
such bond shall be considered
to have declined or resigned
the trust; but the court may
until further order exempt a
trustee under a will from giving
a bond when the testator has
directed or requested such
exemption, and may so exempt
any trustee when all persons
beneficially interested in the
trust, being of full age, request
the exemption. Such exemption
may be cancelled by the court
at any time and the trustee
required to forthwith file a
bond.
GR: Like executors, administrators
and guardians, trustees are also
required to post a bond.
Exceptions: court may exempt a a
trustee under a will from giving a
bond when
.1 the testator has directed or
requested such exemption, or
.2 all persons beneficially
interested in the trust, being of
full age, request the exemption.
de Leon: Note that unlike trustees,
executors may not be wholly
exempt from posting a bond, even
if directed by the testator. The
Mark de Leon, JD 2001

wishes of the testator go only so
far as to lessen the conditions of
the bond (Rule 81 Sec. 2).
Sec. 6. Conditions included
in bond. The following
conditions shall be deemed to
be a part of the bond whether
written therein or not:
(a) That the trustee will
make and return to the court,
at such time as it may order, a
true inventory of all the real
and personal estate belonging
to him as trustee, which at the
time of the making of such
inventory shall have come to
his possession or knowledge;
(b) That he will manage
and dispose of all such estate,
and faithfully discharge his
trust in relation thereto,
according to law and the will of
the testator or the provisions of
the instrument or order under
which he is appointed;
(c) That he will render
upon oath at least once a year
until his trust is fulfilled,
unless he is excused therefrom
in any year by the court, a true
account of the property in his
hands and of the management
and disposition thereof, and
will render such other accounts
as the court may order;
(d) That at the expiration
of his trust he will settle his
accounts in court and pay over
and deliver all the estate
remaining in his hands, or due
from him on such settlement,
to the person or persons
entitled thereto.
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But when the trustee is
appointed as a successor to a
prior trustee, the court may
dispense with the making and
return of an inventory, if one
has already been filed, and in
such case the condition of the
bond shall be deemed to be
altered accordingly.
Conditions of the trustee’s bond
.1 the trustee will make and
return to the court, at such time
as it may order, a true inventory
of all the real and personal
estate belonging to him as
trustee, which at the time of the
making of such inventory shall
have come to his possession or
knowledge;
.2 he will manage and dispose of
all such estate, and faithfully
discharge his trust in relation
thereto, according to law and
the will of the testator or the
provisions of the instrument or
order under which he is
appointed;
.3 he will render upon oath at
least once a year until his trust
is fulfilled, unless he is excused
therefrom in any year by the
court, a true account of the
property in his hands and of the
management and disposition
thereof, and will render such
other accounts as the court may
order;
.4 at the expiration of his trust he
will settle his accounts in court
and pay over and deliver all the
estate remaining in his hands,
or due from him on such
Mark de Leon, JD 2001

settlement, to the person or
persons entitled thereto.
But when the trustee is appointed
as a successor to a prior trustee,
the court may dispense with the
making and return of an inventory,
if one has already been filed, and
in such case the condition of the
bond shall be deemed to be altered
accordingly.
Sec. 7. Appraisal.
Compensation of trustee. When
an inventory is required to be
returned by a trustee, the
estate and effects belonging to
the trust shall be appraised and
the court may order one or
more inheritance tax appraisers
to assist in the appraisement.
The compensation of the
trustee shall be fixed by the
court, if it be not determined in
the instrument creating the
trust.
Sec. 8. Removal or
resignation of trustee. The
proper Court of First Instance
may, upon petition of the
parties beneficially interested
and after due notice to the
trustee and hearing, remove a
trustee if such removal appears
essential in the interests of the
petitioners. The court may also,
after due notice to all persons
interested, remove a trustee
who is insane or otherwise
incapable of discharging his
trust or evidently unsuitable
therefor. A trustee, whether
appointed by the court or under
a written instrument, may
resign his trust if it appears to
Remedial Law Reviewer
98
the court proper to allow such
resignation.
Grounds for removal of a trustee
.1 essential in the interests of the
petitioners (parties beneficially
interested)
.2 insanity
.3 incapability of discharging his
trust or
.4 evidently unsuitability
Sec. 9. Proceedings for sale
or encumbrance of trust estate.
When the sale or encumbrance
of any real or personal estate
held in trust is necessary or
expedient, the court having
jurisdiction of the trust may, on
petition and after due notice
and hearing, order such sale or
encumbrance to be made, and
the reinvestment and
application of the proceeds
thereof in such manner as will
best effect the objects of the
trust. The petition, notice,
hearing, order of sale or
encumbrance, and record of
proceedings, shall conform as
nearly as may be to the
provisions concerning the sale
or encumbrance by guardians
of the property of minors or
other wards.
E. Adoption
Mark de Leon, JD 2001
 99

cf RA 8552: Domestic (DAA) and .1 minor who has been

RA 8043: Inter-Country (ICA) administratively or judicially
Adoptions Acts declared available for adoption;
1. Who may be .2 legitimate child of one spouse
Adopted by the other spouse;
.3 illegitimate child by a qualified
a. Domestic
adopter to improve his/her
Adoption (Sec. 8 status to that of legitimacy;
DAA)
.4 anyone who has been
Sec. 8. Who May Be consistently considered and
Adopted. — The following may treated by the adopter as his
be adopted: child since minority
(a) Any person below .5 child whose adoption has been
eighteen (18) years of age who previously rescinded; or
has been administratively or
.6 a child whose biological or
judicially declared available for
adoptive parent has died
adoption;
No proceedings shall be initiated
(b) The legitimate
within 6 months from the death of
son/daughter of one spouse by
said parent.
the other spouse;
(c) An illegitimate b. Inter-country
son/daughter by a qualified Adoption (Sec. 8
adopter to improve his/her and 3 [f]ICA)
status to that of legitimacy; Sec. 8. Who May be Adopted.
(d) A person of legal age if, - Only a legally free child may
prior to the adoption, said be the subject of inter-country
person has been consistently adoption. xxx
considered and treated by the Sec. 3. Definition of Terms. -
adopter(s) as his/her own child As used in this Act, the term
since minority;
f) Legally-free child means a
(e) A child whose adoption child who has been voluntarily
has been previously rescinded; or involuntarily committed to
or the Department, in accordance
(f) A child whose biological with the Child and Youth
or adoptive parent(s) has died: Welfare Code.
Provided, That no proceedings
shall be initiated within six (6)
2. Rule 99: Adoption
months from the time of death and Custody of
of said parent(s). Minors
The following may be adopted Sec. 1. Venue. A person
domestically desiring to adopt another or

Remedial Law Reviewer Mark de Leon, JD 2001


have the custody of a minor
shall present his petition to the
Court of First Instance of the
province, or the municipal or
justice of the peace court of the
city or municipality in which he
resides.
In the City of Manila, the
proceedings shall be instituted
in the Juvenile and Domestic
Relations Court.
Venue of adoption proceedings
.1 RTC of the prospective adopted
.2 In the City of Manila – Juvenile
and Domestic Relations Court.
Sec. 2. Contents of petition.
The petition for adoption shall
contain the same allegations
required in a petition for
guardianship, to wit:
(a) The jurisdictional facts;
(b) The qualifications of
the adopter;
(c) That the adopter is not
disqualified by law;
(d) The name, age, and
residence of the person to be
adopted and of his relatives or
of the persons who have him
under their care;
(e) The probable value and
character of the estate of
the person to be adopted.
cf Sec. 7 DAA
Sec. 7. Who May Adopt. — The
following may adopt:
(a) Any Filipino citizen of legal
age, in possession of full civil
capacity and legal rights, of good
moral character, has not been
convicted of any crime involving
Remedial Law Reviewer
100
moral turpitude, emotionally and
psychologically capable of caring
for children, at least sixteen (16)
years older than the adoptee, and
who is in a position to support and
care for his/her children in keeping
with the means of the family. The
requirement of sixteen (16) year
difference between the age of the
adopter and adoptee may be
waived when the adopter is the
biological parent of the adoptee, or
is the spouse of the adoptee's
parent;
(b) Any alien possessing the same
qualifications as above stated for
Filipino nationals: Provided, That
his/her country has diplomatic
relations with the Republic of the
Philippines, that he/she has been
living in the Philippines for at least
three (3) continuous years prior to
the filing of the application for
adoption and maintains such
residence until the adoption
decree is entered, that he/she has
been certified by his/her
diplomatic or consular office or
any appropriate government
agency that he/she has the legal
capacity to adopt in his/her
country, and that his/her
government allows the adoptee to
enter his/her country as his/her
adopted son/daughter: Provided,
Further, That the requirements on
residency and certification of the
alien's qualification to adopt in
his/her country may be waived for
the following:
(i) a former Filipino citizen who
seeks to adopt a relative within the
fourth (4th) degree of
consanguinity or affinity; or
(ii) one who seeks to adopt the
legitimate son/daughter of his/her
Filipino spouse; or
(iii) one who is married to a
Filipino citizen and seeks to adopt
jointly with his/her spouse a
relative within the fourth (4th)
degree of consanguinity or affinity
of the Filipino spouse; or
Mark de Leon, JD 2001

(c) The guardian with respect to
the ward after the termination of
the guardianship and clearance of
his/her financial accountabilities.
Husband and wife shall jointly
adopt, except in the following
cases:
(i) if one spouse seeks to adopt the
legitimate son/daughter of the
other; or
(ii) if one spouse seeks to adopt
his/her own illegitimate
son/daughter: Provided, However,
that the other spouse has signified
his/her consent thereto; or
(iii) if the spouses are legally
separated from each other.
In case husband and wife jointly
adopt, or one spouse adopts the
illegitimate son/daughter of the
other, joint parental authority shall
be exercised by the spouses.
cf Sec. 9 ICA
Sec. 9. Who May Adopt. - An alien
or a Filipino citizen permanently
residing abroad may file an
application for inter-country
adoption of a Filipino child if
he/she:
a) is at least twenty-seven (27)
years of age and at least sixteen
(16) years older than the child to
be adopted, at the time of
application unless the adoptor is
the parent by nature of the child to
be adopted or the spouse of such
parent:
b) if married, his/her spouse must
jointly file for the adoption;
c) has the capacity to act and
assume all rights and
responsibilities of parental
authority under his national laws,
and has undergone the appropriate
counseling from an accredited
counselor in his/her country;
d) has not been convicted of a
crime involving moral turpitude;
Remedial Law Reviewer
101
e) is eligible to adopt under his/her
national law;
f) is in a position to provide the
proper care and support and to
give the necessary moral values
and example to all his children,
including the child to be adopted;
g) agrees to uphold the basic
rights of the child as embodied
under Philippine laws, the U.N.
Convention on the Rights of the
Child, and to abide by the rules
and regulations issued to
implement the provisions of this
Act;
h) comes from a country with
whom the Philippines has
diplomatic relations and whose
government maintains a similarly
authorized and accredited agency
and that adoption is allowed under
his/her national laws; and
i) possesses all the qualifications
and none of the disqualifications
provided herein and in other
applicable Philippine laws.
Who may adopt domestically
.1 The guardian with respect to
the ward after the termination
of the guardianship and
clearance of his financial
accountabilities.
.2 Qualifications for all non-
guardian adopter
.a legal age
.b in possession of full civil
capacity and legal rights
.c good moral character
.d not been convicted of any
crime involving moral
turpitude
.e emotionally and
psychologically capable of
caring for children
Mark de Leon, JD 2001

.f at least 16 years older than
the adoptee; may be waived
when the adopter is
)1 the biological parent of
the adoptee, or
)2 the spouse of the
adoptee's parent;
.g in a position to support and
care for his/her children in
keeping with the means of
the family
.3 Additional qualifications for
non-guardian aliens
.a His country has diplomatic
relations with the Philippines
.b Philippine resident for at
least 3 continuous years
prior to the filing of the
application for adoption until
the adoption decree is
entered
.c has been certified by his
diplomatic or consular office
or any appropriate
government agency that
)1 he has the legal
capacity to adopt in his
country
)2 his government allows
the adoptee to enter his
country as his adopted
child
.d Residency and certification
may be waived for the
following:
)1 a former Filipino who
seeks to adopt a relative
within the 4th degree of
consanguinity or affinity;
or
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102
)2 one who seeks to adopt
the legitimate child of his
Filipino spouse; or
)3 one who is married to
a Filipino and seeks to
adopt jointly with his
spouse a relative within
the 4th degree of
consanguinity or affinity
of the Filipino spouse
GR: In domestic adoption, husband
and wife shall jointly adopt
Exceptions:
.1 spouse seeks to adopt the
legitimate child of the other; or
.2 spouse seeks to adopt his own
illegitimate child: Provided,
However, that the other spouse
has signified his consent
.3 spouses are legally separated
from each other.
In case husband and wife jointly
adopt, or one spouse adopts the
illegitimate child of the other, joint
parental authority shall be
exercised by the spouses.
Qualifications of inter-country
adopter
.1 non-Philippine resident
.2 at least 27 years old
.3 at least 16 years older than the
child to be adopted, unless the
adoptor is the biological parent
or the spouse of such parent:
.4 spouses must jointly adopt (de
Leon: no exceptions)
.5 capacity to act and assume all
rights and responsibilities of
parental authority under his
national laws
Mark de Leon, JD 2001

.6 has undergone the appropriate
counseling from an accredited
counselor in his country;
.7 has not been convicted of a
crime involving moral
turpitude;
.8 eligible to adopt under his
national law;
.9 in a position to provide the
proper care and support and to
give the necessary moral values
and example to all his children,
including the child to be
adopted;
.10 agrees to uphold the basic
rights of the child as embodied
under
.a Philippine laws
.b the U.N. Convention on the
Rights of the Child
.c the rules and regulations
issued to implement the
provisions of the ICA;
.11 comes from a country
.a with whom the Philippines
has diplomatic relations and
.b whose government maintains
a similarly authorized and
accredited agency
.c whose laws allow adoption
.12 possesses all the
qualifications and none of the
disqualifications provided
herein and in other applicable
Philippine laws.
de Leon: Note that in domestic
adoption, there are exceptiosn to
the rule that spouses must jointly
adopt. In inter-country adoption,
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103
spouses must always adopt jointly,
NO EXCEPTIONS.
Sec. 3. Consent to adoption.
There shall be filed with the
petition a written consent to
the adoption signed by xxx each
of its (the child’s) known living
parents who is not insane or
hopelessly intemperate or has
not abandoned such child, or if
there are no such parents by
the general guardian or
guardian ad litem of the child,
or if the child is in the custody
of an orphan asylum, children's
home, or benevolent society or
person, by the proper officer or
officers of such asylum, home,
or society, or by such person;
but if the child is illegitimate
and has not been recognized,
the consent of its father to the
adoption shall not be required.
If the person to be adopted
is of age, only his or her
consent and that of the spouse,
if any, shall be required.
cf Sec. 9 DAA
Sec. 9. Whose Consent is
Necessary to the Adoption. — After
being properly counseled and
informed of his/her right to give or
withhold his/her approval of the
adoption, the written consent of
the following to the adoption is
hereby required:
(a) The adoptee, if ten (10) years of
age or over;
(b) The biological parent(s) of the
child, if known, or the legal
guardian, or the proper
government instrumentality which
has legal custody of the child;
(c) The legitimate and adopted
sons/daughters, ten (10) years of
Mark de Leon, JD 2001
 104

age or over, of the adopter(s) and been repealed by the Domestic

adoptee, if any; Adoption Act).
(d) The illegitimate
sons/daughters, ten (10) years of
de Leon: Note that there are no
age or over, of the adopter if living specific consent requirements in
with said adopter and the latter's the Inter-country Adoption Acts. It
spouse, if any; and is submitted that the consent
(e) The spouse, if any, of the requirements under the Domestic
person adopting or to be adopted. Adoption Act applies as well.
Consents required in domestic Sec. 4. Order for hearing. If
adoption the petition and consent filed
.1 adoptee at least 10 years old are sufficient in form and
substance, the court, by an
.2 either (in order of priority) order reciting the purpose of
.a biological parents who the petition, shall fix a date and
place for the hearing thereof,
)1 is not insane which date shall not be more
)2 is not hopelessly than six (6) months after the
intemperate or entry of the order, and shall
)3 has not abandoned direct that a copy of the order
such child be published before the
hearing at least once a week for
.b legal guardian, or three (3) successive weeks in
.c proper government some newspaper of general
instrumentality which has circulation published in the
legal custody province, as the court shall
deem best.
.3 legitimate and adopted children
of the adopter and adoptee at cf Secs. 10-12 DAA
least 10 years old Sec. 10. Hurried Decisions. — In
all proceedings for adoption, the
.4 illegitimate children, at least 10 court shall require proof that the
years old, of the adopter if biological parent(s) has been
living with said adopter and the properly counseled to prevent
latter's spouse, him/her from making hurried
decisions caused by strain or
.5 spouse of the adopter and anxiety to give up the child, and to
adopted sustain that all measures to
strengthen the family have been
If the adopted is illegitimate and exhausted and that any prolonged
has not been recognized, the stay of the child in his/her own
consent of its father to the home will be inimical to his/her
welfare and interest.
adoption shall not be required. If
the person to be adopted is of age, Sec. 11. Case Study. — No petition
only his or her consent and that of for adoption shall be set for
hearing unless a licensed social
the spouse, if any, shall be worker of the Department, the
required. (de Leon: it is unclear social service office of the local
whether these provisions have government unit, or any child-

Remedial Law Reviewer Mark de Leon, JD 2001


placing or child-caring agency has
made a case study of the adoptee,
his/her biological parent(s), as well
as the adopter(s), and has
submitted the report and
recommendations on the matter to
the court hearing such petition.
At the time of preparation of the
adoptee's case study, the
concerned social worker shall
confirm with the Civil Registry the
real identity and registered name
of the adoptee. If the birth of the
adoptee was not registered with
the Civil Registry, it shall be the
responsibility of the concerned
social worker to ensure that the
adoptee is registered.
The case study on the adoptee
shall establish that he/she is
legally available for adoption and
that the documents to support this
fact are valid and authentic.
Further, the case study of the
adopter(s) shall ascertain his/her
genuine intentions and that the
adoption is in the best interest of
the child.
The Department shall intervene on
behalf of the adoptee if it finds,
after the conduct of the case
studies, that the petition should be
denied. The case studies and other
relevant documents and records
pertaining to the adoptee and the
adoption shall be preserved by the
Department.
Sec. 12. Supervised Trial Custody.
— No petition for adoption shall be
finally granted until the adopter(s)
has been given by the court a
supervised trial custody period for
at least six (6) months within
which the parties are expected to
adjust psychologically and
emotionally to each other and
establish a bonding relationship.
During said period, temporary
parental authority shall be vested
in the adopter(s).
The court may motu proprio or
upon motion of any party reduce
the trial period if it finds the same
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105
to be in the best interest of the
adoptee, stating the reasons for
the reduction of the period.
However, for alien adopter(s),
he/she must complete the six (6)-
month trial custody except for
those enumerated in Sec. 7 (b) (i)
(ii) (iii) [alien adopters whose
residency and certification
requirements may be waived].
If the child is below seven (7)
years of age and is placed with the
prospective adopter(s) through a
pre-adoption placement authority
issued by the Department, the
prospective adopter(s) shall enjoy
all the benefits to which biological
parent(s) is entitled from the date
the adoptee is placed with the
prospective adopter(s).
cf Secs. 10-15 ICA
Sec. 10. Where to File Application.
- An application to adopt a Filipino
child shall be filed either with the
Philippine Regional Trial Court
having jurisdiction over the child,
or with the Board, through an
intermediate agency, whether
governmental or an authorized and
accredited agency, in the country
of the prospective adoptive
parents, which application shall be
in accordance with the
requirements as set forth in the
implementing rules and
regulations to be promulgated by
the Board.
The application shall be supported
by the following documents
written and officially translated in
English.
a) Birth certificate of applicant(s);
b) Marriage contract, if married,
and divorce decree, if applicable;
c) Written consent of their
biological or adoptive children
above ten (10) years of age, in the
form of sworn statement;
d) Physical, medical and
psychological evaluation by a duly
Mark de Leon, JD 2001

licensed physician and
psychologist;
e) Income tax returns or any
document showing the financial
capability of the applicant(s);
f) Police clearance of applicant(s);
g) Character reference from the
local church/minister, the
applicant's employer and a the activities of the Board.
member of the immediate
community who have known the
applicant(s) for at least five (5)
years; and
h) Recent postcard-size pictures of
the applicant(s) and his immediate
family;
The Rules of Court shall apply in
case of adoption by judicial
proceedings.
Sec. 11. Family
Selection/Matching. - No child
shall be matched to a foreign
adoptive family unless it is
satisfactorily shown that the child
cannot be adopted locally. The
clearance, as issued by the Board,
with the copy of the minutes of the
meetings, shall form part of the
records of the child to be adopted.
When the Board is ready to
transmit the Placement Authority
to the authorized and accredited
inter-country adoption agency and
all the travel documents of the
child are ready, the adoptive
parents, or any one of them, shall
personally fetch the child in the
Philippines.
Sec. 12. Pre-adoptive Placement
Costs. - The applicant(s) shall bear
the following costs incidental to
the placement of the child;
a) The cost of bringing the child
from the Philippines to the
residence of the applicant(s)
abroad, including all travel
expenses within the Philippines
and abroad; and
b) The cost of passport, visa,
medical examination and
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106
psychological evaluation required,
and other related expenses.
Sec. 13. Fees, Charges and
Assessments. - Fees, charges, and
assessments collected by the
Board in the exercise of its
functions shall be used solely to
process applications for inter-
country adoption and to support
Sec. 14. Supervision of Trial
Custody. - The governmental
agency or the authorized and
accredited agency in the country
of the adoptive parents which filed
the application for inter-country
adoption shall be responsible for
the trial custody and the care of
the child. It shall also provide
family counseling and other
related services. The trial custody
shall be for a period of six (6)
months from the time of
placement. Only after the lapse of
the period of trial custody shall a
decree of adoption be issued in the
said country a copy of which shall
be sent to the Board to form part
of the records of the child.
During the trial custody, the
adopting parent(s) shall submit to
the governmental agency or the
authorized and accredited agency,
which shall in turn transmit a copy
to the Board, a progress report of
the child's adjustment. The
progress report shall be taken into
consideration in deciding whether
or not to issue the decree of
adoption.
The Department of Foreign Affairs
shall set up a system by which
Filipino children sent abroad for
trial custody are monitored and
checked as reported by the
authorized and accredited inter-
country adoption agency as well as
the repatriation to the Philippines
of a Filipino child whose adoption
has not been approved.
Sec. 15. Executive Agreements. -
The Department of Foreign Affairs,
upon representation of the Board,
Mark de Leon, JD 2001

shall cause the preparation of
Executive Agreements with
countries of the foreign adoption
agencies to ensure the legitimate
concurrence of said countries in
upholding the safeguards provided
by this Act.
de Leon: Note that adoption and
estate proceedings are required to
be published, unlike in
guardianship proceedings.
Sec. 5. Hearing and
judgment. Upon satisfactory
proof in open court on the date
fixed in the order that such
order has been published as
directed, that the allegations of
the petition are true, and that
it is a proper case for adoption
and the petitioner or
petitioners are able to bring up
and educate the child properly,
the court shall adjudge that
thenceforth the child is freed
from all legal obligations of
obedience and maintenance
with respect to its natural
parents, except the mother
when the child is adopted by
her husband, and is, to all legal
intents and purposes, the child
of the petitioner or petitioners,
and that its surname is
changed to that of the
petitioner or petitioners. The
adopted person or child shall
thereupon become the legal
heir of his parents by adoption
and shall also remain the legal
heir of his natural parents. In
case of the death of the
adopted person or child, his
parents and relatives by nature,
and not by adoption, shall be
his legal heirs.
Remedial Law Reviewer
107
cf Secs. 13 and 16-18 DAA
Sec. 13. Decree of Adoption. — If,
after the publication of the order
of hearing has been complied with,
and no opposition has been
interposed to the petition, and
after consideration of the case
studies, the qualifications of the
adopter(s), trial custody report and
the evidence submitted, the court
is convinced that the petitioners
are qualified to adopt, and that the
adoption would redound to the
best interest of the adoptee, a
decree of adoption shall be
entered which shall be effective as
of the date the original petition
was filed. This provision shall also
apply in case the petitioner(s) dies
before the issuance of the decree
of adoption to protect the interest
of the adoptee. The decree shall
state the name by which the child
is to be known.
Sec. 16. Parental Authority. —
Except in cases where the
biological parent is the spouse of
the adopter, all legal ties between
the biological parent(s) and the
adoptee shall be severed and the
same shall then be vested on the
adopter(s).
Sec. 17. Legitimacy. — The
adoptee shall be considered the
legitimate son/daughter of the
adopter(s) for all intents and
purposes and as such is entitled to
all the rights and obligations
provided by law to legitimate
sons/daughters born to them
without discrimination of any kind.
To this end, the adoptee is entitled
to love, guidance, and support in
keeping with the means of the
family.
Sec. 18. Succession. — In legal and
intestate succession, the
adopter(s) and the adoptee shall
have reciprocal rights of
succession without distinction
from legitimate filiation. However,
if the adoptee and his/her
biological parent(s) had left a will,
Mark de Leon, JD 2001
 108

the law on testamentary its best interest, permitting the

succession shall govern. child to choose which parent it
Effects of Adoption prefers to live with if it be over
ten years of age, unless the
.1 The decree shall state the name
parent so chosen be unfit to
by which the child is to be
take charge of the child by
known.
reason of moral depravity,
.2 all legal ties between the habitual drunkenness,
biological parents and the incapacity, or poverty. If, upon
adoptee shall be severed and such hearing, it appears that
the same shall then be vested both parents are improper
on the adopters, except in cases persons to have the care,
where the biological parent is custody, and control of the
the spouse of the adopter child, the court may either
.3 adoptee shall be considered the designate the paternal or
legitimate child of the adopters maternal grandparent of the
child, or his oldest brother or
.4 In legal and intestate sister, or some reputable and
succession, the adopters and discreet person to take charge
the adoptee shall have of such child, or commit it to
reciprocal rights of succession any suitable asylum, children's
without distinction from home, or benevolent society.
legitimate filiation. The court may in conformity
de Leon: Note that even under the with the provisions of the Civil
Domestic Adoption Act, the Code order either or both
adopted can not represent the parents to support or help
adopter in terms of successional support said child, irrespective
rights. of who may be its custodian,
and may make any order that is
Sec. 6. Proceedings as to
just and reasonable permitting
child whose parents are
the parent who is deprived of
separated. Appeal. When
its care and custody to visit the
husband and wife are divorced
child or have temporary
or living separately and apart
custody thereof. Either parent
from each other, and the
may appeal from an order made
question as to the care,
in accordance with the
custody, and control of a child
provisions of this section. No
or children of their marriage is
child under seven years of age
brought before a Court of First
shall be separated from its
Instance by petition or as an
mother, unless the court finds
incident to any other
there are compelling reasons
proceeding, the court, upon
therefor.
hearing the testimony as may
be pertinent, shall award the cf Arts. 63 (3), 213 and 214 FC
care, custody, and control of
each such child as will be for

Remedial Law Reviewer Mark de Leon, JD 2001


Art. 63. The decree of legal
separation shall have the following
effects:
(3) The custody of the minor
children shall be awarded to the
innocent spouse, subject to the
provisions of Article 213 of this
Code; and
Art. 213. In case of separation of
the parents, parental authority
shall be exercised by the parent
designated by the Court. The
Court shall take into account all
relevant considerations, especially
the choice of the child over seven
years of age, unless the parent
chosen is unfit. (n)
No child under seven years of age
shall be separated from the
mother, unless the court finds
compelling reasons to order
otherwise.
Art. 214. In case of death, absence
or unsuitability of the parents,
substitute parental authority shall
be exercised by the surviving
grandparent. In case several
survive, the one designated by the
court, taking into account the
same consideration mentioned in
the preceding article, shall
exercise the authority. (355a)
Sec. 7. Proceedings as to
vagrant or abused child. When
the parents of any minor child
are dead, or by reason of long
absence or legal or physical
disability have abandoned it, or
cannot support it through
vagrancy, negligence, or
misconduct, or neglect or
refuse to support it, or treat it
with excessive harshness or
give it corrupting orders,
counsels, or examples, or cause
or allow it to engage in
begging, or to commit offenses
against the law, the proper
Court of First Instance, upon
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109
petition filed by some reputable
resident of the province setting
forth the facts, may issue an
order requiring such parents to
show cause, or, if the parents
are dead or cannot be found,
requiring the fiscal of the
province to show cause, at a
time and place fixed in the
order, why the child should not
be taken from its parents, if
living; and if upon the hearing
it appears that the allegations
of the petition are true, and
that it is for the best interest of
the child, the court may make
an order taking it from its
parents, if living; and
committing it to any suitable
orphan asylum, children's
home, or benevolent society or
person to be ultimately placed,
by adoption or otherwise, in a
home found for it by such
asylum, children's home,
society or person.
Sec. 8. Service of judgment.
Final orders or judgments
under this rule shall be served
by the clerk upon the civil
registrar of the city or
municipality wherein the court
issuing the same is situated.
cf Secs. 14-15 DAA
Sec. 14. Civil Registry Record. —
An amended certificate of birth
shall be issued by the Civil
Registry, as required by the Rules
of Court, attesting to the fact that
the adoptee is the child of the
adopter(s) by being registered
with his/her surname. The original
certificate of birth shall be
stamped "cancelled" with the
annotation of the issuance of an
amended birth certificate in its
Mark de Leon, JD 2001

place and shall be sealed in the
civil registry records. The new
birth certificate to be issued to the
adoptee shall not bear any
notation that it is an amended
issue.
Sec. 15. Confidential Nature of
Proceedings and Records. — All
hearings in adoption cases shall be
confidential and shall not be open
to the public. All records, books,
and papers relating to the
adoption cases in the files of the
court, the Department, or any
other agency or institution
participating in the adoption
proceedings shall be kept strictly
confidential.
If the court finds that the
disclosure of the information to a
third person is necessary for
purposes connected with or arising
out of the adoption and will be for
the best interest of the adoptee,
the court may merit the necessary
information to be released,
restricting the purposes for which
it may be used.
3. Rule 100:
Rescission and
Revocation of
Adoption
Sec. 1. Who may file
petition; grounds. xxx (repealed
by Sec. 19, Domestic Adoption Act)
cf Sec. 19 DAA
Sec. 19. Grounds for Rescission of
Adoption. — Upon petition of the
adoptee, with the assistance of the
Department if a minor or if over
eighteen (18) years of age but is
incapacitated, as
guardian/counsel, the adoption
may be rescinded on any of the
following grounds committed by
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110
the adopter(s): (a) repeated
physical and verbal maltreatment
by the adopter(s) despite having
undergone counseling; (b) attempt
on the life of the adoptee; (c)
sexual assault or violence; or (d)
abandonment and failure to
comply with parental obligations.
Adoption, being in the best
interest of the child, shall not be
subject to rescission by the
adopter(s). However, the
adopter(s) may disinherit the
adoptee for causes provided in
Article 919 of the Civil Code.
Grounds for revocation of adoption
(can only be filed by adopted)
.1 repeated physical and verbal
maltreatment by the adopters
despite having undergone
counseling;
.2 attempt on the life of the
adoptee;
.3 sexual assault or violence; or
.4 abandonment and failure to
comply with parental
obligations.
The adopter can not rescind the
adoption, but he may disinherit the
adopted.
Sec. 2. Order to answer. The
court in which the petition is
filed shall issue an order
requiring the adverse party to
answer the petition within
fifteen (15) days from receipt of
a copy thereof. The order and a
copy of the petition shall be
served on the adverse party in
such manner as the court may
direct.
Sec. 3. Judgment. If upon
trial, on the day set therefor,
the court finds that the
Mark de Leon, JD 2001

allegations of the petition are
true, it shall render judgment
ordering the rescission or
revocation of the adoption, with
or without costs, as justice
requires.
cf Sec. 20 DAA
Sec. 20. Effects of Rescission. — If
the petition is granted, the
parental authority of the adoptee's
biological parent(s), if known, or
the legal custody of the
Department shall be restored if the
adoptee is still a minor or
incapacitated. The reciprocal
rights and obligations of the
adopter(s) and the adoptee to each
other shall be extinguished.
The court shall order the Civil
Registrar to cancel the amended
certificate of birth of the adoptee
and restore his/her original birth
certificate.
Succession rights shall revert to its
status prior to adoption, but only
as of the date of judgment of
judicial rescission. Vested rights
acquired prior to judicial
rescission shall be respected.
All the foregoing effects of
rescission of adoption shall be
without prejudice to the penalties
imposable under the Penal Code if
the criminal acts are properly
proven.
Sec. 4. Service of judgment.
A certified copy of the
judgment rendered in
accordance with the next
preceding section shall be
served upon the civil registrar
concerned, within thirty (30)
days from rendition thereof,
who shall forthwith enter the
action taken by the court in the
register.
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111
Sec. 5. Time within which to
file petition. A minor or other
incapacitated person must file
the petition for rescission or
revocation of adoption within
the five (5) years following his
majority, or if he was
incompetent at the time of the
adoption, within the five (5)
years following the recovery
from such incompetency.
The adopter must also file
the petition to set aside the
adoption within five (5) years
from the time the cause or
causes giving rise to the
rescission or revocation of the
same took place.
Time to file petition to rescind
adoption
.1 by the minor or incompetent –
within 5 years from majority, or
if he was incompetent at the
time of the adoption, within 5
years from the recovery from
such incompetency.
.2 by adopter – within 5 years
from the cause
4. Cases
De la Cruz v. De la Cruz, 12 SCRA
47 (1964) The proceedings for
adoption and revocation of
adoption are separate and distinct
from each other. In the first what
is determined is the propriety of
establishing the relationship of
parent and child between two
persons not so related by nature.
In the other proceeding, either the
adopting parent or the adopted
seeks to severe the relationship
previously established, and the
inquiry refers to the truth of the
Mark de Leon, JD 2001

grounds upon which the revocation
is sought. Once the proper court
has granted a petitioner for
adoption and the decree has
become final the proceedings is
terminated and closed. §1 Rule 99
designates the venue of a proceedings.
proceeding for adoption, which is
the place where the petitioner
resides, but is silent with respect
to the venue of proceeding for
rescission and revocation of
adoption (Rule 100). A subsequent
petition for revocation of the
adoption is neither a continuation
of nor an incident in the
proceeding for adoption. It is an
entirely new one, dependent on
facts which have happened since
the decree of adoption. The venue
of this new case, applying Rule 99
in a suppletory character, is also
the place of the residence of the
petitioner.
The doctrine that no court has the
power to interfere by injunction
with the judgments or decrees of a
court of coordinate jurisdiction is
not applicable. The validity and
effectiveness of the decree of
adoption is not in question and
such decree is not sought to be
enjoined nor its execution
restrained but what is sought is its
revocation because of
circumstances subsequently
supervening which, under the law,
render the continuation of the
adoptive relationship unjustified
and impractical.
de Leon: Note that in de la Cruz, it
was the adopter’s residence that
was considered in determining
venue. At that time, the adopter
can petition for rescission of
Remedial Law Reviewer
112
adoption. Now, it is only the
adopted who can petition for
rescission. Hence, it is always the
residence of the adopted that is
considered in determining venue
of rescission of adoption
Nieto v. Magat, 136 SCRA 533
(1985)
Facts: Couple in Guam (husband
works there) seeks to adopt
nephew in the Philippines. Lower
court denies because the couple
are non-residents and trial custody
could not be had.
Held: The fact that the prospective
adopters reside temporarily in a
foreign country does not disqualify
them from adopting a minor child.
Besides, the law specifically
authorizes the court, either upon
its own or on petitioner's motion,
to dispense with the trial custody if
it finds that it is to the best
interest of the child. In this case,
the Minister of Social Services and
Development suggests that trial
custody is unnecessary because
the child was already comfortable
with the couple and the couple was
capable of disciplining the child.
Bobanovic v. Montes, 142 SCRA
485 (1986)
Facts: Order granting adoption
became final. Adopting parents
applied for travel clearance with
the MSSD for the adopted to travel
with them to Australia. MSSD
refused on the ground that it was
not notified of the petition nor of
the order granting adoption.
Held: The fact that the order
setting the petition for adoption
Mark de Leon, JD 2001

was published is ground to
presume that MSSD had
knowledge of the adoption
proceedings and could have
intervened.
Monserrate v. CA, 178 SCRA 153
(1989) There is no existing law or
rule that requires notice to the
Solicitor General as a condition
precedent or as a jurisdicitional
requirement for the valid exercise
of the court’s jurisdiction in an
adoption case. MTCs and RTCs
have concurrent jurisdiction on
adoption cases (de Leon: cf with
the new adoption RAs). The
adoption court has the power to
delegate reception of evidence to
the clerk of court.
F. Rule 101:
Hospitalization of
Insane Persons
Sec. 1. Venue. Petition for
commitment. A petition for the
commitment of a person to a
hospital or other place for the
insane may be filed with the
Court of First Instance of the
province where the person
alleged to be insane is found.
The petition shall be filed by
the Director of Health in the all
cases where, in his opinion,
such commitment is for the
public welfare, or for the
welfare of said person who, in
his judgment, is insane, and
such person or the one having
charged of him is opposed to
his being taken to a hospital or
other place for the insane.
Venue for petition for the
commitment of an insane person to
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113
a hospital – RTC of the province
where the person alleged to be
insane is found
The petition shall be filed by the
Director of Health
Sec. 2. Order for hearing. If
the petition filed is sufficient in
form and substance, the court,
by an order reciting the
purpose of the petition, shall fix
a date for the hearing thereof,
and copy of such order shall be
served on the person alleged to
be insane, and to the one
having charge of him, or on
such of his relatives residing in
the province or city as the
judge may deem proper. The
court shall furthermore order
the sheriff to produce the
alleged insane person, if
possible, on the date of the
hearing.
de Leon: Note that there is no
publication requirement for
hospitalization of insane persons.
Sec. 3. Hearing and
judgment. Upon satisfactory
proof, in open court on the date
fixed in the order, that the
commitment applied for is for
the public welfare or for the
welfare of the insane person,
and that his relatives are
unable for any reason to take
proper custody and care of him,
the court shall order his
commitment to such hospital or
other place for the insane as
may be recommended by the
Director of Health. The court
shall make proper provisions
for the custody of property or
money belonging to the insane
Mark de Leon, JD 2001

until a guardian be properly
appointed.
Sec. 4. Discharge of insane.
When, in the opinion of the
Director of Health, the person
ordered to be committed to a
hospital or other place for the
insane is temporarily or
permanently cured, or may be
released without danger he may
file the proper petition with the
Court of First Instance which
ordered the commitment.
Sec. 5. Assistance of fiscal in
the proceeding. It shall be the
duty of the provincial fiscal or
in the City of Manila the fiscal
of the city, to prepare the
petition for the Director of
Health and represent him in
court in all proceedings arising
under the provisions of this
rule.
G. Habeas Corpus
1. Rule 102
Sec. 1. To what habeas
corpus extends. Except as
otherwise expressly provided by
law, the writ of habeas corpus
shall extend to all cases of
illegal confinement or
detention by which any person
is deprived of his liberty, or by
which the rightful custody of
any person is withheld from the
person entitled thereto.
Scope of habeas corpus – all cases
of illegal confinement or detention
by which
.1 any person is deprived of his
liberty, or
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114
.2 the rightful custody of any
person is withheld from the
person entitled thereto.
Sec. 2. Who may grant the
writ. The writ of habeas corpus
may be granted by the Supreme
Court, or any member thereof,
on any day and at any time, or
by the Court of Appeals or any
member thereof in the
instances authorized by law,
and if so granted it shall be
enforceable anywhere in the
Philippines, and may be made
returnable before the court or
any member thereof, or before
the Court of First Instance, or
any judge thereof for the
hearing and decision on the
merits. It may also be granted
by a Court of First Instance, or
a judge thereof, on any day and
at any time, and returnable
before himself, enforceable
only within his judicial district.
Who may grant the writ of habeas
corpus
.1 enforceable anywhere in the
Philippines, and may be made
returnable before the court or
any member thereof, or before
the RTC, or any judge thereof
for the hearing and decision on
the merits.
.a the SC or any member
thereof – on any day and at
any time, or
.b the CA or any member
thereof – in the instances
authorized by law
.2 enforceable only within the
judicial district and returnable
before himself – the RTC, or a
Mark de Leon, JD 2001
 115

judge thereof, on any day and at .2 shall set forth:

any time .a the person in whose behalf
Sec. 3. Requisites of the application is made is
application therefor. imprisoned or restrained of
Application for the writ shall be his liberty;
by petition signed and verified .b the officer or name of the
either by the party for whose person by whom he is so
relief it is intended, or by some imprisoned or restrained; or,
person on his behalf, and shall if both are unknown or
set forth: uncertain, such officer or
(a) That the person in person may be described by
whose behalf the application is an assumed appellation, and
made is imprisoned or the person who is served
restrained of his liberty; with the writ shall be
deemed the person intended;
(b) The officer or name of
the person by whom he is so .c the place where he is so
imprisoned or restrained; or, if imprisoned or restrained, if
both are unknown or uncertain, known;
such officer or person may be .d a copy of the commitment or
described by an assumed cause of detention of such
appellation, and the person person, if it can be procured
who is served with the writ without impairing the
shall be deemed the person efficiency of the remedy; or,
intended; if the imprisonment or
(c) The place where he is restraint is without any legal
so imprisoned or restrained, if authority, such fact shall
known; appear.
(d) A copy of the Sec. 4. When writ not
commitment or cause of allowed or discharge
detention of such person, if it authorized. If it appears that
can be procured without the person alleged to be
impairing the efficiency of the restrained of his liberty is in
remedy; or, if the imprisonment the custody of an officer under
or restraint is without any legal process issued by a court or
authority, such fact shall judge or by virtue of a
appear. judgment or order of a court of
record, and that the court or
Requisites of application for the judge had jurisdiction to issue
writ of habeas corpus the process, render the
.1 petition signed and verified judgment, or make the order,
either by the party for whose the writ shall not be allowed; or
relief it is intended, or by some if the jurisdiction appears after
person on his behalf the writ is allowed, the person
shall not be discharged by

Remedial Law Reviewer Mark de Leon, JD 2001


reason of any informality or
defect in the process,
judgment, or order. Nor shall
anything in this rule be held to
authorize the discharge of a
person charged with or
convicted of an offense in the
Philippines, or of a person
suffering imprisonment under
lawful judgment.
Grounds for denial of the writ of
habeas corpus
.1 the person alleged to be
restrained of his liberty is in the
custody of an officer
.a under process issued by a
court or judge or
.b by virtue of a judgment or
order of a court of record,
and either
)1 the court or judge
jurisdiction to issue
process, render
judgment, or make
order, or
)2 the jurisdiction
appears after the writ is
allowed, or
)3 mere informality or
defect in the process,
judgment, or order
.2 the petitioner is charged with
or convicted of an offense in the
Philippines, or of a person
suffering imprisonment under
lawful judgment.
Sec. 5. When the writ must
be granted and issued. A court
or judge authorized to grant
the writ must, when a petition
therefor is presented and it
appears that the writ ought to
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116
issue, grant the same forthwith,
and immediately thereupon the
clerk of the court shall issue
the writ under the seal of the
court; or in case of emergency,
the judge may issue the writ
under his own hand, and may
depute any officer or person to
serve it.
Sec. 6. To whom writ
directed, and what to require.
In case of imprisonment or
restraint by an officer, the writ
shall be directed to him, and
shall command him to have the
body of the person restrained
of his liberty before the court
or judge designated in the writ
at the time and place therein
specified. In case of
imprisonment or restraint by a
person not an officer, the writ
had shall be directed to an officer,
the and shall command him to take
the and have the body of the person
the restrained of his liberty before
the court or judge designated
in the writ at the time and
place therein specified, and to
summon the person by whom
he is restrained then and there
to appear before said court or
judge to show the cause of the
imprisonment or restraint.
Sec. 7. How prisoner
designated and writ served. The
person to be produced should
be designated in the writ by his
name, if known, but if his name
is not known he may be
otherwise described or
identified. The writ may be
served in any province by the
sheriff or other proper officer,
or by a person deputed by the
Mark de Leon, JD 2001

court or judge. Service of the
writ shall be made by leaving
the original with the person to
whom it is directed and
preserving a copy on which to
make return of service. If that
person cannot be found, or has
not the prisoner in his custody,
then the service shall be made
on any other person having or
exercising such custody.
Sec. 8. How writ executed
and returned. The officer to
whom the writ is directed shall
convey the person so
imprisoned or restrained, and
named in the writ, before the
judge allowing the writ, or, in
case of his absence or
disability, before some other
judge of the same court, on the
day specified in the writ,
unless, from sickness or
infirmity of the person directed
to be produced, such person
cannot, without danger, be
brought before the court or
judge; and the officer shall
make due return of the writ,
together with the day and the
cause of the caption and
restraint of such person
according to the command
thereof.
Sec. 9. Defect of form. No
writ of habeas corpus can be
disobeyed for defect of form, if
it sufficiently appears
therefrom in whose custody or
under whose restraint the party
imprisoned or restrained is
held and the court or judge
before whom he is to be
brought.
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117
Sec. 10. Contents of return.
When the person to be
produced is imprisoned or
restrained by an officer, the
person who makes the return
shall state therein, and in other
cases the person in whose
custody the prisoner is found
shall state, in writing to the
court or judge before whom the
writ is returnable, plainly and
unequivocably:
(a) Whether he has or has
not the party in his custody or
power, or under restraint;
(b) If he has the party in
his custody or power, or under
restraint, the authority and the
true and whole cause thereof,
set forth at large, with a copy of
the writ, order, execution, or
other process, if any, upon
which the party is held;
(c) If the party is in his
custody or power or is
restrained by him, and is not
produced, particularly the
nature and gravity of the
sickness or infirmity of such
party by reason of which he
cannot, without danger, be
brought before the court or
judge;
(d) If he has had the party
in his custody or power, or
under restraint, and has
transferred such custody or
restraint to another,
particularly to whom, at what
time, for what cause, and by
what authority such transfer
was made.
Mark de Leon, JD 2001
 118

Sec. 11. Return to be signed commitment of a court or

and sworn to. The return or officer authorized to commit by
statement shall be signed by law.
the person who makes it; and Sec. 13. When the return
shall also be sworn to by him if evidence, and when only a plea.
the prisoner is not produced, If it appears that the prisoner
and in all other cases unless is in custody under a warrant of
the return is made and signed commitment in pursuance of
by a sworn public officer in his law, the return shall be
official capacity. considered prima facie
Sec. 12. Hearing on return. evidence of the cause of
Adjournments. When the writ is restraint; but if he is restrained
returned before one judge, at a of his liberty by any alleged
time when the court is in private authority, the return
session, he may forthwith shall be considered only as a
adjourn the case into the court, plea of the facts therein set
there to be heard and forth, and the party claiming
determined. The court or judge the custody must prove such
before whom the writ is facts.
returned or adjourned must Sec. 14. When person
immediately proceed to hear lawfully imprisoned
and examine the return, and recommitted, and when let to
such other matters as are bail. If it appears that the
properly submitted for prisoner was lawfully
consideration, unless for good committed, and is plainly and
cause shown the hearing is specifically charged in the
adjourned, in which event the warrant of commitment with an
court or judge shall make such offense punishable by death, he
order for the safekeeping of the shall not be released,
person imprisoned or discharged, or bailed. If he is
restrained as the nature of the lawfully imprisoned or
case requires. If the person restrained on a charge of
imprisoned or restrained is not having committed an offense
produced because of his not so punishable, he may be
alleged sickness or infirmity, recommitted to imprisonment
the court or judge must be or admitted to bail in the
satisfied that it is so grave that discretion of the court or judge.
such person cannot be If he be admitted to bail, he
produced without danger, shall forthwith file a bond in
before proceeding to hear and such sum as the court or judge
dispose of the matter. On the deems reasonable, considering
hearing the court or judge shall the circumstances of the
disregard matters of form and prisoner and the nature of the
technicalities in respect to any offense charged, conditioned
warrant or order of for his appearance before the

Remedial Law Reviewer Mark de Leon, JD 2001


court where the offense is
properly cognizable to abide its
order or judgment; and the
court or judge shall certify the
proceedings, together with the
bond, forthwith to the proper
court. If such bond is not so
filed, the prisoner shall be
recommitted to confinement.
If it appears that the prisoner was
lawfully committed, and is plainly
and specifically charged in the
warrant of commitment with an
offense punishable by
.1 death – he shall not be released,
discharged, or bailed
.2 less than death – he may be
either
.a recommitted to
imprisonment or
.b admitted to bail – he shall
file a bond conditioned for
his appearance before the
court where the offense is
properly cognizable to abide
its order or judgment; if such
bond is not so filed, the
prisoner shall be
recommitted to confinement.
Sec. 15. When prisoner
discharged if no appeal. When
the court or judge has
examined into the cause of
caption and restraint of the
prisoner, and is satisfied that
he is unlawfully imprisoned or
restrained, he shall forthwith
order his discharge from
confinement, but such
discharge shall not be effective
until a copy of the order has
been served on the officer or
person detaining the prisoner.
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If the officer or person
detaining the prisoner does not
desire to appeal, the prisoner
shall be forthwith released.
Sec. 16. Penalty for refusing
to issue writ, or for disobeying
the same. A clerk of a court
who refuses to issue the writ
after allowance thereof and
demand therefor, or a person to
whom a writ is directed, who
neglects or refuses to obey or
make return of the same
according to the command
thereof, or makes false return
thereof, or who, upon demand
made by or on behalf of the
prisoner, refuses to deliver to
the person demanding, within
six (6) hours after the demand
therefor, a true copy of the
warrant or order of
commitment, shall forfeit to
the party aggrieved the sum of
one thousand pesos, to be
recovered in a proper action,
and may also be punished by
the court or judge as for
contempt.
Sec. 17. Person discharged
not to be given imprisoned. A
person who is set at liberty
upon a writ of habeas corpus
shall not be again imprisoned
for the same offense unless by
the lawful order or process of a
court having jurisdiction of the
cause or offense; and a person
who knowingly, contrary to the
provisions of this rule,
recommits or imprisons, or
causes to be committed or
imprisoned, for the same
offense, or pretended offense,
any person so set at liberty, or
Mark de Leon, JD 2001

knowingly aids or assists
therein, shall forfeit to the
party aggrieved the sum of one
thousand pesos, to be
recovered in a proper action,
notwithstanding any colorable
pretense or variation in the
warrant of commitment, and
may also be punished by the
court or judge granting writ as
for contempt.
Sec. 18. When prisoner may
be removed from one custody
to another. A person committed
to prison, or in custody of an
officer, for any criminal matter,
shall not be removed therefrom
into the custody of another
officer unless by legal process,
or the prisoner be delivered to
an inferior officer to carry to
jail, or, by order of the proper
court or judge, be removed
from one place to another
within the Philippines for trial,
or in case of fire, epidemic,
insurrection, or other necessity
or public calamity; and a
person who, after such
commitment, makes, signs, or
countersigns any order for such
removal contrary to this
section, shall forfeit to the
party aggrieved the sum of one
thousand pesos, to be
recovered in a proper action.
Sec. 19. Record of writ, fees
and costs. The proceedings
upon a writ of habeas corpus
shall be recorded by the clerk
of the court, and upon the final
disposition of such proceedings
the court or judge shall make
such order as to costs as the
case requires. The fees of
Remedial Law Reviewer
120
officers and witnesses shall be
included in the costs taxed, but
no officer or person shall have
the right to demand payment in
advance of any fees to which he
is entitled by virtue of the
proceedings. When a person
confined under color of
proceedings in a criminal case
is discharged, the costs shall be
taxed against the Republic of
the Philippines, and paid out of
its Treasury; when a person in
custody by virtue or under
color of proceedings in a civil
case is discharged, the costs
shall be taxed against him, or
against the person who signed
the application for the writ, or
both, as the court shall direct.
2. Cases
Gonzales v. Viola, 61 Phil. 824
(1935) Where the petitioner is out
on bail, habeas corpus is not
available. The restraint of liberty
which would justify the issuance of
the writ must be more than a mere
moral restraint; it must be actual
or physical. There must be actual
confinement or the present means
of enforcing it.
Villavicencio v. Lukban, 39 Phil.
778 (1919) Imprisonment is not
the only restraint of liberty for
which a writ of habeas corpus may
issue. Deprivation of freedom of
action is enough. The forcible
taking of these women from
Manila by officials of that city, who
handed them over to other parties,
who deposited them in a distant
region, deprived these women of
freedom of locomotion just as
Mark de Leon, JD 2001

effectively as if they had been
imprisoned.
In fact, it is the duty of a court or
judge to grant a writ of habeas
corpus if there is evidence that
within the court's jurisdiction a
person is unjustly imprisoned or
restrained of his liberty, though no
application be made therefor.
The mere fact that the officer to
whom the writ is addressed has
illegally parted with the custody of
a person prior to the filing of the
application for the writ, is no
reason why the writ should not
issue. He was bound to use every
effort to get the person back. He
must do much more than write
letters for the purpose. He must
advertise, and even if necessary
himself go after the person, and do
everything that mortal man could
do in the matter. The court would
only accept clear proof of an
absolute impossibility by way of
excuse.
An officer's failure to produce the
body of a person in obedience to a
writ of habeas corpus, without
legal excuse therefore, when he
has power to do so, constitutes
contempt.
Velasco v. CA, 245 SCRA 677
(1995) Though habeas corpus may
be available when the arrest was
illegal, supervening events may
bar release, e.g. filing of a
complaint or information for the
offense for which the accused is
detained.
de Leon: Note that under the 2000
Rules of Criminal Procedure, an
application for bail is not a waiver
of objections to the illegality of his
Remedial Law Reviewer
121
arrest (Rule 114, Sec. 26). In this
sense, Velasco was modified.
Alimpoos v. CA, 106 SCRA 159
(1981) Where the petitioner was
arrested by virtue of a warrant was
irregularly issued, the remedy is
not habeas corpus, but to move to
set aside the warrant of arrest or
to petition for a reinvestigation.
The only respondent in a habeas
corpus case is the person who has
legal custody of the petitioner. The
complaining witnesses in the
criminal case are not proper
respondents in a habeas corpus
case, neither can they appeal.
Lastly, there can be no damages
awarded in habeas corpus
proceedings.
H. Correction of
clerical errors or
change name
1. Extra-judicial (RA
9048, approved 22
March 2001)
This act claims to amend Arts. 376
and 412 NCC
Art. 376. No person can change his
name or surname without judicial
authority.
Art. 412. No entry in a civil
register shall be changed or
corrected, without a judicial order.
(n)
Section 1. Authority to
Correct Clerical or
Typographical Error and
Change of First Name or
Nickname. — No entry in a civil
register shall be changed or
corrected without a judicial
order; except for clerical or
typographical errors and
Mark de Leon, JD 2001
 122

change of first name or writing, copying, transcribing

nickname which can be or typing an entry in the civil
corrected or changed by register that is harmless and
concerned city or municipal innocuous, such as misspelled
civil registrar or consul general name or misspelled place of
in accordance with the birth or the like, which is
provisions of this Act and its visible to the eyes or obvious to
implementing rules and the understanding, and can be
regulations. corrected or changed only by
GR: No entry in a civil register reference to other existing
shall be altered without a judicial record or records: Provided,
order however, That no correction
must involve the change of
Exceptions: city or municipal civil nationality, age, status or sex of
registrar or consul general can the petitioner.
alter
Requisites for a clerical or
.1 clerical or typographical errors typographical error
and
.1 a mistake committed in the
.2 change of first name or performance of clerical work in
nickname writing, copying, transcribing
Sec. 2. Definitions of Terms. or typing
— As used in this Act, the .2 harmless and innocuous
following terms shall mean:
.3 visible to the eyes or obvious to
(1) "City or municipal civil the understanding
registrar" refers to the head of
.4 can be corrected or changed
the local civil registry office of
only by reference to other
the city or municipality, as the
existing record or records
case may be, who is appointed
as such by the city or municipal Can not be subject of correction -
mayor in accordance with the change of
provisions of existing laws. .1 nationality
(2) "Petitioner" refers to a .2 age
natural person filing the
petition and who has direct and .3 status or
personal interest in the .4 sex
correction of a clerical or
typographical error in an entry (4) "Civil register" refers to
or change of first name or the various registry books and
nickname in the civil register. related certificates and
documents kept in the archives
(3) "Clerical or of the local civil registry
typographical error" refers to a offices, Philippine Consulates
mistake committed in the and of the Office of the Civil
performance of clerical work in Register General.

Remedial Law Reviewer Mark de Leon, JD 2001

 123

(5) "Civil registrar general" Citizens of the Philippines

refers to the administrator of who are presently residing or
the National Statistics Office domiciled in foreign countries
which is the agency mandated may file their petition, in
to carry out and administer the person, with the nearest
provision of laws on civil Philippine Consulates.
registration. The petitions filed with the
(6) "First name" refers to a city or municipal civil registrar
name or nickname given to a or the consul general shall be
person which may consist of processed in accordance with
one or more names in addition this Act and its implementing
to the middle and last names. rules and regulations.
Sec. 3. Who may File the All petitions for the
Petition and Where. — Any correction of clerical or
person having direct and typographical errors and/or
personal interest in the change of first names or
correction of a clerical or nicknames may be availed of
typographical error in an entry only once.
and/or change of first name or Requisites for a Petition to correct
nickname in the civil register clerical error or change of 1st or
may file, in person, a verified nicknames
petition with the local civil
registry office of the city or .1 petitioner has direct and
municipality where the record personal interest in the
being sought to be corrected or alteration
changed is kept. .2 filed in person
In case the petitioner has .3 verified petition
already migrated to another
place in the country and it .4 with the local civil registry
would not be practical for such office of the city or municipality
party, in terms of where the record being sought
transportation expenses, time to be altered is kept.
and effort to appear in person .5 availed of only once.
before the local civil registrar
Exceptions: When need not be filed
keeping the documents to be
in person with local civil registrar
corrected or changed, the
petition may be filed, in person, .1 migration to another place in
with the local civil registrar of the country – filed in person
the place where the interested with the local civil registrar of
party is presently residing or his present residence or
domiciled. The two (2) local domicile
civil registrars concerned will .2 Philippine citizens presently
then communicate to facilitate residing or domiciled abroad –
the processing of the petition.

Remedial Law Reviewer Mark de Leon, JD 2001


filed in person with the nearest
Philippine Consulates.
Sec. 4. Grounds for Change
of First Name or Nickname. —
The petition for change of first
name or nickname may be
allowed in any of the following
cases:
(1) The petitioner finds the
first name or nickname to be
ridiculous, tainted with
dishonor or extremely difficult
to write or pronounce;
(2) The new first name or
nickname has been habitually
and continuously used by the
petitioner and he has been
publicly known by the first
name or nickname in the
community; or
(3) The change will avoid
confusion.
Grounds for Change of First Name
or Nickname
.1 petitioner finds the first name
or nickname to be
.a ridiculous
.b tainted with dishonor or
.c extremely difficult to write or
pronounce;
.2 the new first name or nickname
has been
.a habitually and continuously
used by the petitioner and
.b publicly known by the first
name or nickname in the
community; or
.3 change will avoid confusion.
Sec. 5. Form and Contents of
the Petition. — The petition
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124
shall be in the form of an
affidavit, subscribed and sworn
to before any person authorized
by law to administer oaths. The
affidavit shall set forth facts
necessary to establish the
merits of the petition and shall
show affirmatively that the
petitioner is competent to
testify to the matters stated.
The petitioner shall state the
particular erroneous entry or
entries which are sought to be
corrected and/or the change
sought to be made.
The petition shall be
supported with the following
documents:
(1) A certified true machine
copy of the certificate or of the
page or of the registry book
containing the entry or entries
sought to be corrected or
changed;
(2) At least two (2) public or
private documents showing the
correct entry or entries upon
which the correction or change
shall be based; and
(3) other documents which
the petitioner or the city or
municipal civil registrar, or the
consul general may consider
relevant and necessary for the
approval of the petition.
In case of change of first
name or nickname, the petition
shall likewise be supported
with the documents mentioned
in the immediately preceding
paragraph. In addition, the
petition shall be published at
least once a week for two (2)
Mark de Leon, JD 2001
 125

consecutive weeks in a .b at least 2 public or private

newspaper of general
circulation. Furthermore, the
petitioner shall submit a which the correction or
certification from the
appropriate law enforcement
agencies that he has no
pending case or no criminal
record.
The petition and its
supporting papers shall be filed
in three (3) copies to be
distributed as follows: first copy
to the concerned city or
municipal civil registrar, or the
consul general; second copy to
the Office of the Civil Registrar
General; and the third copy to
the petitioner.
Form and Contents of the Petition
.1 affidavit
.2 subscribed and sworn
.3 setting forth
.a facts necessary to establish
the merits of the petition
.b show affirmatively that the
petitioner is competent to
testify to the matters stated
.c the particular erroneous
entry or entries which are
sought to be corrected
and/or the change sought to
be made.
.4 accompanying documents
.a a certified true machine copy
of the certificate or of the
page or of the registry book
containing the entry or
entries sought to be
corrected or changed;
documents showing the
correct entry or entries upon
change shall be based; and
.c other documents which the
petitioner or the city or
municipal civil registrar, or
the consul general may
consider relevant and
necessary for the approval of
the petition.
.5 for change of first name or
nickname
.a publication
.b certification from the
appropriate law enforcement
agencies that he has no
pending case or no criminal
record.
Sec. 6. Duties of the City of
Municipal Civil Registrar or the
Consul General. — The city or
municipal civil registrar or the
consul general to whom the
petition is presented shall
examine the petition and its
supporting documents. He shall
post the petition in a
conspicuous place provided for
the purpose for ten (10)
consecutive days after he finds
the petition and its supporting
documents sufficient in form
and substance.
The city or municipal civil
registrar or the consul general
shall act on the petition and
shall render a decision not
later than five (5) working days
after the completion of the
posting and/or publication
requirement. He shall transmit

Remedial Law Reviewer Mark de Leon, JD 2001


a copy of his decision together
with the records of the
proceedings to the Office of the
Civil Registrar General within
five (5) working days from the
date of the decision.
Sec. 7. Duties and Powers of
the Civil Registrar General. —
The civil registrar general
shall, within ten (10) working
days from receipt of the
decision granting a petition,
exercise the power to impugn
such decision by way of an
objection based on the
following grounds:
(1) The error is not clerical
or typographical;
(2) The correction of an
entry or entries in the civil
register is substantial or
controversial as it effects the
civil status of a person; or
(3) The basis used in
changing the first name or
nickname of a person does not
fall under Section 4.
The civil registrar general
shall immediately notify the
city or municipal civil registrar
or the consul general of the
action taken on the decision.
Upon receipt of the notice
thereof, the city or municipal
civil registrar or the consul
general shall notify the
petitioner of such action.
The petitioner may seek
reconsideration with the civil
registrar general or file the
appropriate petition with the
proper court.
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126
If the civil registrar general
fails to exercise his power to
impugn the decision of the city
or municipal registrar or of the
consul general within the
period prescribed herein, such
decision shall become final and
executory.
Where the petition is denied
by the city or municipal civil
registrar or the consul general,
the petitioner may either
appeal the decision to the civil
registrar general or file the
appropriate petition with the
proper court.
Grounds for impugning decision
.1 error is not clerical or
typographical
.2 correction of an entry or entries
in the civil register is
substantial or controversial as it
effects the civil status of a
person; or
.3 no basis for changing the first
name or nickname
If the civil registrar general fails to
impugn the decision of the city or
municipal registrar or of the
consul general within the period
prescribed herein, such decision
shall become final and executory.
Where the petition is denied by the
city or municipal civil registrar or
the consul general, the petitioner
may either appeal the decision to
the civil registrar general or file
the appropriate petition with the
proper court.
Sec. 8. Payment of Fees. —
The city or municipal civil
registrar or the consul general
Mark de Leon, JD 2001

shall be authorized to collect
reasonable fees as a condition
for accepting the petition. An
indigent petitioner shall be
exempt from the payment of
the said fee.
Sec. 9. Penalty Clause. — xxx
Sec. 10. Implementing Rules
and Regulations. — xxx
Sec. 11. Retroactivity
Clause. — xxx
Sec. 12. Separability Clause.
— xxx
Sec. 13. Repealing Clause. —
xxx
Sec. 14. Effectivitiy Clause.
— xxx
2. Judicial
a. Change of Name
1) Rule 103
This rule implements Arts. 376 of
the Civil Code. Note that this has
been modified by RA 9048.
Art. 376. No person can change his
name or surname without judicial
authority.
Sec. 1. Venue. A person
desiring to change his name
shall present the petition to the
Court of First Instance of the
province in which he resides,
or, in the City of Manila, to the
Juvenile and Domestic
Relations Court.
Venue of change of name
Remedial Law Reviewer
127
.1 RTC of province of residence of
petitioner for at leat the past 3
years
.2 Juvenile and Domestic Relations
Court, in the City of Manila
Sec. 2. Contents of petition.
A petition for change of name
shall be signed and verified by
the person desiring his name
changed, or some other person
on his behalf, and shall set
forth:
(a) That the petitioner has
been a bona fide resident of the
province where the petition is
filed for at least three (3) years
prior to the date of such filing;
(b) The cause for which the
change of the petitioner's name
is sought;
(c) The name asked for.
The petition for change of name
must be verified.
Sec. 3. Order for hearing. If
the petition filed is sufficient in
form and substance, the court,
by an order reciting the
purpose of the petition, shall fix
a date and place for the
hearing thereof, and shall
direct that a copy of the order
be published before the
hearing at least once a week for
three (3) successive weeks in
some newspaper of general
circulation published in the
province, as the court shall
deem best. The date set for the
hearing shall not be within
thirty (30) days prior to an
election nor within four (4)
months after the last
publication of the notice.
Mark de Leon, JD 2001

A petition for change of name
should be published.
Sec. 4. Hearing. Any
interested person may appear
at the hearing and oppose the
petition. The Solicitor General
or the proper provincial or city
fiscal shall appear on behalf of
the Government of the
Republic.
Sec. 5. Judgment. Upon
satisfactory proof in open court
on the date fixed in the order
that such order has been
published as directed and that
the allegations of the petition
are true, the court shall, if
proper and reasonable cause
appears for changing the name
of the petitioner, adjudge that
such name be changed in
accordance with the prayer of
the petition.
Sec. 6. Service of judgment.
Judgments or orders rendered
in connection with this rule
shall be furnished the civil
registrar of the municipality or
city where the court issuing the
same is situated, who shall
forthwith enter the same in the
civil register.
2) Cases
San Roque v. Republic, 23 SCRA
444 (1968)
The real name of a person is that
given him in the Civil Register, not
the name by which he was
baptized in his church or by which
he has been known in the
community, or which he has
adopted; that the only way to
change that name legally is for the
Remedial Law Reviewer
128
interested party "to file the special
proceedings embodied in Rule
103." This is, substantially, what
San Roque did.
The petition was entitled "to
correct name in the birth
certificate of Leoncia San Roque,"
but the body of the petition
affirmatively alleged that while her
name appearing on her birth
certificate on file was Lucia San
Roque, she "since her birth .., has
been using and has always been
known as Leoncia San Roque and
not as Lucia San Roque, even in
the performance of important civil
actions like marriage". Essentially,
therefore, the petition admitted
that San Roque's real name was
Lucia San Roque which was her
true name because it was the one
appearing in the Civil Register, but
that this notwithstanding, she had
been using continuously since
birth and had been known under
the name of Leoncia San Roque.
These allegations were duly
proven during the hearing.
Notwithstanding the imperfection
of language employed, the petition
was, in essence, one to secure
judicial authority for San Roque to
change her name from Lucia to
Leoncia — a petition which falls
reasonably within the provisions of
Rule 103. That the petition was
entitled one "to correct name in
the birth certificate of Leoncia San
Roque" and prayed that San
Roque's name appearing in her
birth certificate be corrected
accordingly did not necessarily
make the petition fall under the
provisions of Rule 108, because
even under the provisions of Rule
Mark de Leon, JD 2001

103 the judgment or order
rendered in connection with said
Rule shall be furnished the Civil
Registrar of the municipality or
city where the Court who issued
the same is situated, who shall
forthwith enter the same in the
civil register.
Republic v. Aquino, 90 SCRA 172
(1979) The petition for change of
name shall set forth inter alia, the
name asked for. The requirement
is mandatory and compliance
therewith is essential, for it is by
such means that the court acquires
jurisdiction. The failure to include
the name sought to be adopted in
the title of the petition, and
consequently in the notices
published in the newspaper is a
substantial jurisdictional infirmity.
For publication to be effective, it
must give a correct information. To
inform, the publication should
recite, among others, the following
facts: (a) the name or names of
applicant; (b) the cause for which
the change of name is sought; and
(c) the new name asked for.
Rotaquio v. Republic, 22 SCRA 280
(1968) When the change appears
to be necessary to avoid confusion,
and there is no claim or pretense
that petitioner seeks the change to
achieve some unlawful purpose,
the petition must be granted.
Republic v. Marcos, G.R. L-31065,
Feb. 15, 1990, 182 SCRA 223
(1990) 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. The
omission of her other alias —
"Mary Pang" — in the captions of
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129
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. All aliases of the
applicant must be set forth in the
title of the published petition, for
the omission of any of such aliases,
would be fatal to the petition even
if such other aliases are mentioned
in the body of the petition.
The following have been
considered valid grounds for a
change of name: (1) when the
name is ridiculous, dishonorable,
or extremely difficult to write or
pronounce; (2) when the change
results as a legal consequence, as
in legitimation; (3) when the
change will avoid confusion; (4)
having continuously used and been
known since childhood by a
Filipino name, unaware of his alien
parentage; or (5) a sincere desire
to adopt a Filipino name to erase
signs of former alienage, all in
good faith and not to prejudice
anybody.
The general rule is that a change
of name should not be permitted if
it will give a false impression of
family relationship to another
where none actually exists.
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
Mark de Leon, JD 2001

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.
Republic v. Belmonte, 158 SCRA
173 (1988)
Facts: 16 year old girl, assisted by
her mother, wanted to have her
name changed from Anita Po to
Veronica Pao. She also sought to
have her father’s name appearing
as Po Yu changed to Pao Yu and
her mother’s name recorded as
Pakiat Chan changed to Helen
Chan.
Held: There was no showing that
all interested persons were
notified of the petition. Petition
dismissed for not being sufficient
in form and substance.
A petition for a change of name
and the correction of entries in the
civil registry may be joined in the
same proceeding, provided all the
requirements in both proceedings
must be met.
Republic v. Zosa, 165 SCRA 292
(1988) The title of the petition for
change of name, as published,
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 the
data are found in the body of the
petition. The body of the petition,
as published, should contain 1) the
name or names of the applicant,
and 2) the cause for te changed
name, and 3) the new name asked
for. Failure include the name
Remedial Law Reviewer
130
sought to be adopted in the title of
the petition, nor in the title or
caption of the notices published in
the newspapers renders the trial
court without jurisdiction to hear
and determine the petition.
Yasin v. Judge, Shari'a District
Court, 241 SCRA 606 (1995) A
married woman has the option, not
an obligation, to use her husband’s
name or surname. A judicial
authorization is not necessary.
When the marriage is terminated
(e.g. annulled or Muslim divorce)
the former wife need not seek
judicial authorization to revert to
her maiden name. A petition for
judicial confirmation to revert to
such maiden name is a superfluity.
It is not covered by Rule 103 on
Change of Name or its special
requisites (e.g. inclusion in the
title the names by which the
petitioner has been known).
b. Cancellation or
Correction of
Entries in the
Civil Registry
1) Rule 108
This rule implements Arts. 412 of
the Civil Code. Note that this has
been modified by RA 9048.
Art. 412. No entry in a civil
register shall be changed or
corrected, without a judicial order.
(n)
Sec. 1. Who may file
petition. Any person interested
in any act, event, order or
Mark de Leon, JD 2001
 131

decree concerning the civil .1 births

status of persons which has .2 marriages
been recorded in the civil
register, may file a verified .3 deaths
petition for the cancellation or .4 legal separations
correction of any entry relating
thereto, with the Court of First .5 judgments of annulments of
Instance of the province where marriage
the corresponding civil registry .6 judgments declaring marriages
is located. void from the beginning
Requisites for a petition for .7 legitimations
cancellation or correction of
.8 adoptions
entries in the civil registry
.9 acknowledgments of natural
.1 petitioner is interested in any
children
act, event, order or decree
concerning the civil status of .10 naturalization
persons which has been .11 election, loss or recovery of
recorded in the civil register citizenship
.2 verified petition .12 civil interdiction
.3 RTC of the province where the .13 judicial determination of
civil registry is located. filiation
Sec. 2. Entries subject to .14 voluntary emancipation of a
cancellation or correction. minor; and
Upon good and valid grounds,
the following entries in the civil .15 changes of name.
register may be cancelled or Sec. 3. Parties. When
corrected: (a) births; (b) cancellation or correction of an
marriages; (c) deaths; (d) legal entry in the civil register is
separations; (e) judgments of sought, the civil registrar and
annulments of marriage; (f) all persons who have or claim
judgments declaring marriages any interest which would be
void from the beginning; (g) affected thereby shall be made
legitimations; (h) adoptions; (i) parties to the proceeding.
acknowledgments of natural
children; (j) naturalization (k) Sec. 4. Notice and
election, loss or recovery of publication. Upon the filing of
citizenship (l) civil interdiction; the petition, the court shall, by
(m) judicial determination of an order, fix the time and place
filiation; (n) voluntary for the hearing of the same,
emancipation of a minor; and and cause reasonable notice
(a) changes of name. thereof to be given to the
persons named in the petition.
Entries subject to cancellation or The court shall also cause the
correction order to be published once a

Remedial Law Reviewer Mark de Leon, JD 2001

 132

week for three (3) consecutive correction of clerical or innocuous

weeks in a newspaper of mistakes in the Civil Registry.
general circulation in the Subtantial corrections may not be
province. had in a summary procedure such
as Rule 108.
Publication is required in a
petition for cancellation or de Castro: Rule 108 requires
correction of entries in the civil publication and inclusion as
registry. parties all persons or who claim
any interest which would be
Sec. 5. Opposition. The civil
affected by the alteration. This
registrar and any person having
makes the action in rem, which
or claiming any interest under
can not be described as
the entry whose cancellation or
“summary.” Not being summary,
correction is sought may,
substantial corrections may be had
within fifteen (15) days from
under Rule 108. (Note: Justice
notice of the petition, or from
Escolin concurred in the main
the last date of publication of
opinion)
such notice, file his opposition
thereto. Yu v. Civil Registrar, 121 SCRA
873 (1983) Where the correction
Sec. 6. Expediting
sought is substantial, e.g. affects
proceedings. The court in
the names and identities of the
which the proceeding is
persons, correction in the civil
brought may make orders
registry may be allowed where the
expediting the proceedings,
person concerned is made a party
and may also grant preliminary and given the opportunity to be
injunction for the preservation heard.
of the rights of the parties
pending such proceedings. Republic v. Bartolome, 138 SCRA
442 (1985) If the changes sought
Sec. 7. Order. After hearing, in the civil registry are substantial,
the court may either dismiss Rule 108 is not the proper remedy.
the petition or issue an order
granting the cancellation or Republic v. Valencia, 141 SCRA
correction prayed for. In either 462 (1986) Only clerical errors in
case, a certified copy of the the civil registry may be corrected
judgment shall be served upon by summary procedure.
the civil registrar concerned Substantial errors can be
who shall annotate the same in corrected only in an adversarial
his record. proceeding. However, where the
trial court has conducted
2) Cases proceedings where all relevant
Republic v. Medina, 119 SCRA 270 facts have been fully and properly
(1982) [This ruling has been developed, where opposing
abrogated by Republic v. Valencia] counsel have been given
Art. 412 NCC and its implementing opportunity to demolish the
rule, Rule 108, allows only for opposite party's case, and where

Remedial Law Reviewer Mark de Leon, JD 2001


the evidence has been thoroughly
weighed and considered, the suit
or proceeding is adversarial. If all
the procedural requirements of
Rule 108 (civil registrar and
interested persons made parties
and notified, publication,
opposition, hearing) 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 can no
longer be described as "summary".
When an opposition to the petition
is filed either by the Civil Registrar
or any interested person and the
opposition is actively prosecuted,
the proceedings thereon become
adversary proceedings. Hence,
even substantial changes may be
ordered in a Rule 108 proceeding.
(Note: Justice Escolin again
concurred in the main, and only,
opinion)
Requirements for an adversarial
proceeding
1. Presence of opposing parties
2. notice to both parties
3. relevant facts have been fully
and properly developed
4. opposing counsel was given an
opportunity to rebut the
opposite party’s case
5. evidence has been thoroughly
weighed and considered
6. compliance with the publication
requirement
de Leon: Note that in Valencia, the
petition seeking substantial
changes under Rule 108 was
allowed because the proceedings
became adversarial after an
Remedial Law Reviewer
133
opposition was filed. In Bartolome,
the proceedings remained
summary because no opposition
was filed.
It has been held that the
corrections contemplated in Article
412 include only corrections of
mistakes that are clerical in
nature. If the purpose of the
petition is merely to correct the
clerical errors which are visible to
the eye or obvious to the
understanding, the court may,
under a summary procedure, issue
an order for the correction of the
mistake. However, substantial and
controversial alterations can only
be allowed after appropriate
adversary proceedings wherein all
the parties who may be affected by
the entries are notified or
represented and evidence is
submitted to prove the allegations
of the complaint, and proof to the
contrary admitted. (Labayo-Rowe
v. Republic, 168 SCRA 294 [1988]).
Batbatan v. Office of Local Civil
Registrar, 118 SCRA 745 (1982) If
the civil registry entry is contrary
to law, its correction is merely a
clerical error which undoubtedly
may be corrected via Rule 108.
Chiao Ben Lim v. Zosa, 146 SCRA
366 (1986) Art. 412 NCC does not
say that it applies only to clerical
errors and that the proedure to be
used is summary in nature.
Republic v. Flojo, 152 SCRA 550
(1987) Rule 108 requires notice to
all persons who may have any
interest in the change sought to be
affected and that they be made
parties to the proceeding. Rule
Mark de Leon, JD 2001

108 is therefore not summary but
adversarial.
Republic v. CA, 255 SCRA 99
(1996)
Facts: Spouses Caranto filed a
petition for the adoption of Midael
along with a prayer to correct his
name to “Michael.” Solicitor
opposed on the ground that the
petition was for adoption, not for
correction of the civil registry.
Held: The correction was not
properly included in the petition
for adoption. A separate case
under Rule 108 should be filed to
correct the spelling of the name.
Roxas-del Castillo: This case goes
against the principle of multiplicity
of suits because the adoption
proceedings would have
necessarily caused a change in the
surname of the adopted. The
spouses merely wanted to correct
the misspelling along with the
change in the surname.
Leonor v. C.A., 256 SCRA 69
(1996)
Facts: There was in fact a
marriage, but the marriage turned
out to be void.
Held: A separate action for
declaration of nullity of marriage
should be filed.
de Leon: In Valencia, the change
was allowed because there was no
marriage at all. In Leonor, there
was a marriage which was
allegedly void, hence before a
change may be effected, a
separate action for declaration of
nullity should have been filed.
Remedial Law Reviewer
134
Republic v. Labrador, 305 SCRA
438 (1999)
Facts: The aunt filed the action on
behalf of the child. Not all
indispensable parties was notified.
Held: Rule 108 allows for only
clerical errors. The proceedings
were not adversarial. Substantial
corrections should be in an
ordinary civil action.
Roxas-del Castillo: The SC was
categorical that by its very nature,
Rule 108 is summary and not
adversarial. So even if you comply
with all the requisites of
adversarial proceedings, Rule 108
is still not the proper remedy in
substantial corrections in the civil
registry. But I still think the
correct doctrine is the Valencia
ruling.
de Leon: To summarize, if the
change sought is that of the name,
and there are 3 remedies
.1 change of first name or
nickname – petition to the local
civil registrar via RA 9048
(specific grounds only and
availed only once)
.2 change of clerical errors in the
typing of the name – petition to
the RTC via Rule 108
.3 change of name – petition to the
RTC via Rule 103
If the change sought is clerical
errors in other entries in the civil
registry
.1 petition to the local civil
registrar via RA 9048
.2 petition to the RTC via Rule 108
Mark de Leon, JD 2001
 135

If the change sought is substantial, oppositor is a ruling that the

then the only remedy is an alteration sought is not innocuous.
adversarial proceeding. However, If a court recognizes an opposition,
jurisprudence is unclear whether then it also rules that the change
Rule 108 is an adversarial sought is not innocuous. Rule 108
proceeding. Medina (1982) ruled should be the proper remedy even
that only clerical errors may be for substantial changes.
corrected. Valencia (1986) ruled Publication and allowance of
that if an opposition is filed and opposition is enough safeguards
pursued, then Rule 108 becomes for the dangers feared in Medina.
adversarial and substantial Besides, as Justice Abad Santos
changes may be ordered. Labrador said in his dissent in Medina, the
(1999) returned to Medina and court has kept ruling that Art. 412
categorically ruled that only and Rule 108 is not the remedy for
clerical errors may be corrected substantial changes, but did not
under Rule 108, but it did not rule rule what the proper remedy is.
on the effect of a filing of an
opposition. The problem is I. Rule 104: Voluntary
Valencia did not expressly abandon Dissolution of
Medina. Labrador did not Corporations
expressly abandon Valencia nor did Sec. 1. Where, by whom and
it affirm Medina. I submit that on what showing application
Valencia is the correct ruling, more made. xxx (repealed by
so with the advent of RA 9048. It Corporation Code)
seems RA 9048 provides for an
extrajudicial remedy for the Sec. 2. Order thereupon for
clerical errors that Medina and filing objections. xxx (repealed
Labrador ruled to be covered by Corporation Code)
under Rule 108. For Rule 108 to be Sec. 3. Hearing, dissolution,
of any use, it should cover even and disposition of assets.
substantial changes. I submit that Receiver. xxx (repealed by
publication, even without Corporation Code)
subsequent filing of an opposition
by anyone, is enough to transform Sec. 4. What shall constitute
a Rule 108 proceeding into an record. xxx (repealed by
adversarial proceeding, otherwise Corporation Code)
we would-be oppositors can easily J. Rule 105: Judicial
defeat a proposed substantial
Approval of Voluntary
change by simply not filing an
opposition. Furthermore, the Recognition of Minor
nature of a clerical error is that it Natural Children
is obvious to the eye. If truly only Sec. 1. Venue. Where judicial
clerical errors are allowed under approval of a voluntary
Rule 108, how can there be recognition of a minor natural
oppositors? The mere cognizance child is required, such child or
by the court of the standing of an

Remedial Law Reviewer Mark de Leon, JD 2001


his parents shall obtain the
same by filing a petition to that
effect with the Court of First
Instance of the province in
which the child resides. In the
City of Manila, the petition
shall be filed in the Juvenile
and Domestic Relations Court.
Venue of petitions for judicial
approval of a voluntary recognition
of a minor natural child
.1 RTC of the province of
petitioner’s residence
.2 Juvenile and Domestic Relations
Court in the City of Manila
cf Arts 172-173 and 175 FC
Art. 172. The filiation of legitimate
children is established by any of
the following:
(1) The record of birth appearing
in the civil register or a final
judgment; or
(2) An admission of legitimate
filiation in a public document or a
private handwritten instrument
and signed by the parent
concerned.
In the absence of the foregoing
evidence, the legitimate filiation
shall be proved by:
(1) The open and continuous
possession of the status of a
legitimate child; or
(2) Any other means allowed by
the Rules of Court and special
laws. (265a, 266a, 267a)
Art. 173. The action to claim
legitimacy may be brought by the
child during his or her lifetime and
shall be transmitted to the heirs
should the child die during
minority or in a state of insanity. In
these cases, the heirs shall have a
period of five years within which to
institute the action.
Remedial Law Reviewer
136
The action already commenced by
the child shall survive
notwithstanding the death of ether
or both of the parties. (268a)
Art. 175. Illegitimate children may
establish their illegitimate filiation
in the same way and on the same
evidence as legitimate children.
The action must be brought within
the same period specified in
Article 173, except when the
action is based on the second
paragraph of Article 172, in which
case the action may be brought
during the lifetime of the alleged
parent. (289a)
Sec. 2. Contents of petition.
The petition for judicial
approval of a voluntary
recognition of a minor natural
child shall contain the
following allegations:
(a) The jurisdictional facts;
(b) The names and
residences of the parents who
acknowledged the child, or of
either of them, and their
compulsory heirs, and the
person or persons with whom
the child lives;
(c) The fact that the
recognition made by the parent
or parents took place in a
statement before a court of
record or in an authentic
writing, copy of the statement
or writing being attached to the
petition.
Sec. 3. Order for hearing.
Upon the filing of the petition,
the court, by an order reciting
the purpose of the same, shall
fix the date and place for the
hearing thereof, which date
shall not be more than six (6)
Mark de Leon, JD 2001
 137

months after the entry of the K.Rule 106: Constitution

order, and shall, moreover, of Family Home
cause a copy of the order to be
served personally or by mail cf Art. 153 FC
upon the interested parties, Art. 153. The family home is
and published once a week for deemed constituted on a house
three (3) consecutive weeks, in and lot from the time it is occupied
as a family residence. From the
a newspaper or newspapers of time of its constitution and so long
general circulation in the as any of its beneficiaries actually
province. resides therein, the family home
continues to be such and is exempt
Petition for judicial approval of from execution, forced sale or
voluntary recognition of natural attachment except as hereinafter
children must be published. provided and to the extent of the
value allowed by law. (223a)
Sec. 4. Opposition. Any
interested party must, within Sec. 1. Who may constitute.
fifteen (15) days from service, xxx (repealed by Art. 153 of the
or from the last date of Family Code)
publication, of the order Sec. 2. Contents of petition.
referred to in the next xxx (repealed by Art. 153 of the
preceding section, file his Family Code)
opposition to the petition,
Sec. 3. Notice and
stating the grounds or reasons
publication. xxx (repealed by Art.
therefor.
153 of the Family Code)
Sec. 5. Judgment. If, from
Sec. 4. Objection and date of
the evidence presented during
hearing. xxx (repealed by Art.
the hearing, the court is
153 of the Family Code)
satisfied that the recognition of
the minor natural child was Sec. 5. Order. xxx (repealed by
willingly and voluntarily made Art. 153 of the Family Code)
by the parent or parents Sec. 6. Registration of order.
concerned, and that the xxx (repealed by Art. 153 of the
recognition is for the best Family Code)
interest of the child, it shall
render judgment granting L. Rule 107: Absentees
judicial approval of such Stages of absence
recognition.
.1 provisional absence
Sec. 6. Service of judgment
upon civil registrar. A copy of .2 declaration of absence
the judgment rendered in .3 presumption of death
accordance with the preceding
section shall be served upon 1. Provisional Absence
the civil registrar whose duty it Sec. 1. Appointment of
shall be to enter the same in representative. When a person
the register. disappears from his domicile,

Remedial Law Reviewer Mark de Leon, JD 2001


his whereabouts being
unknown, and without having
left an agent to administer his
property, or the power
conferred upon the agent has
expired, any interested party,
relative or friend, may petition
the Court of First Instance of
the place where the absentee
resided before his
disappearance for the
appointment of a person to
represent him provisionally in
all that may be necessary. In
the City of Manila, the petition
shall be filed in the Juvenile
and Domestic Relations Court.
cf Arts. 381-382 NCC
Art. 381. When a person
disappears from his domicile, his
whereabouts being unknown, and
without leaving an agent to
administer his property, the judge,
at the instance of an interested
party, a relative, or a friend, may
appoint a person to represent him
in all that may be necessary.
This same rule shall be observed
when under similar circumstances
the power conferred by the
absentee has expired. (181a)
Art. 382. The appointment referred
to in the preceding article having
been made, the judge shall take
the necessary measures to
safeguard the rights and interests
of the absentee and shall specify
the powers, obligations and
remuneration of his
representative, regulating them,
according to the circumstances, by
the rules concerning guardians.
(182)
Venue of petition for appointment
of representative
.1 RTC of province where
absentee resided
Remedial Law Reviewer
138
.2 Juvenile and Domestic Relations
Court in the City of Manila
Who may petition for appointment
of a representative – any
interested party, relative or friend
Requisites for appointment of
representative
.1 person disappears from his
domicile
.2 his whereabouts unknown
.3 either
.a without leaving an agent or
.b power conferred upon the
agent has expired
2. Declaration of
Absence
Sec. 2. Declaration of
absence; who may petition.
After the lapse of two (2) years
from his disappearance and
without any news about the
absentee or since the receipt of
the last news, or of five (5)
years in case the absentee has
left a person in charge of the
administration of his property,
the declaration of his absence
and appointment of a trustee or
administrator may be applied
for by any of the following:
(a) The spouse present;
(b) The heirs instituted in
a will, who may present an
authentic copy of the same;
(c) The relatives who
would succeed by the law of
intestacy; and
(d) Those who have over
the property of the absentee
Mark de Leon, JD 2001

some right subordinated to the
condition of his death.
cf Arts. 384-385 NCC
Art. 384. Two years having elapsed
without any news about the
absentee or since the receipt of
the last news, and five years in
case the absentee has left a person
in charge of the administration of
his property, his absence may be
declared. (184)
Art. 385. The following may ask for
the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will,
who may present an authentic
copy of the same;
(3) The relatives who may succeed
by the law of intestacy;
(4) Those who may have over the
property of the absentee some
right subordinated to the condition
of his death. (185)
Required period for declaration
absence
.1 If absentee left a person in
charge – 5 years from
disappearance
.2 If absentee left no person in
charge – 2 years from
.a disappearance or
.b receipt of last news
Who may ask for declaration of
absence
.1 present spouse
.2 heirs instituted in a will, who
may present an authentic copy
of the same;
.3 intestate heirs
.4 those who may have over the
property of the absentee some
Remedial Law Reviewer
139
right subordinated to the
condition of his death
Note that declaration of absence
does not authorize the present
spouse to remarry even if the
period is the same. The present
spouse must obtain a separate
judicial declaration of presumptive
death. (Art. 41 FC)
Art. 41 A marriage contracted by
any person during subsistence of a
previous marriage shall be null
and void, unless before the
celebration of the subsequent
marriage, the prior spouse had
been absent for four consecutive
years and the spouse present has a
well-founded belief that the absent
spouse was already dead. In case
of disappearance where there is
danger of death under the
circumstances set forth in the
provisions of Article 391 of the
Civil Code, an absence of only two
years shall be sufficient.
For the purpose of contracting the
subsequent marriage under the
preceding paragraph the spouse
present must institute a summary
proceeding as provided in this
Code for the declaration of
presumptive death of the absentee,
without prejudice to the effect of
reappearance of the absent
spouse. (83a)
3. Provisions common
to appointment of a
representative and
declaration of
absence
Sec. 3. Contents of petition.
The petition for the
appointment of a
representative, or for the
declaration of absence and the
appointment of a trustee or an
Mark de Leon, JD 2001
 140

administrator, must show the province or city where the

following: absentee resides, as the court
shall deem best.
(a) The jurisdictional facts;
Petition for appointment of a
(b) The names, ages, and
representative or for declaration of
residences of the heirs
absence must be published.
instituted in the will, copy of
which shall be presented, and Sec. 5. Opposition. Anyone
of the relatives who would appearing to contest the
succeed by the law of intestacy; petition shall state in writing
his grounds therefor, and
(c) The names and
served a copy thereof on the
residences of creditors and
petitioner and other interested
others who may have any
parties on or before the date
adverse interest over the
designated for the hearing.
property of the absentee;
Sec. 6. Proof at hearing;
(d) The probable value,
order. At the hearing,
location and character of the
compliance with the provisions
property belonging to the
of section 4 of this rule must
absentee.
first be shown. Upon
Sec. 4. Time of hearing; satisfactory proof of the
notice and publication thereof. allegations in the petition, the
When a petition for the court shall issue an order
appointment of a granting the same and
representative, or for the appointing the representative,
declaration of absence and the trustee or administrator for the
appointment of a trustee or absentee. The judge shall take
administrator, is filed, the court the necessary measures to
shall fix a date and place for safeguard the rights and
the hearing thereof where all interests of the absentee and
concerned may appear to shall specify the powers,
contest the petition. obligations and remuneration
Copies of the notice of the of his representative, trustee or
time and place fixed for the administrator, regulating them
hearing shall be served upon by the rules concerning
the known heirs, legatees, guardians.
devisees, creditors and other In case of declaration of
interested persons, at least ten absence, the same shall not
(10) days before the day of the take effect until six (6) months
hearing, and shall be published after its publication in a
once a week for three (3) newspaper of general
consecutive weeks prior to the circulation designated by the
time designated for the court and in the Official
hearing, in a newspaper of Gazette.
general circulation in the

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 141

cf Arts. 386 NCC (c) When a third person

Art. 386. The judicial declaration appears, showing by a proper
of absence shall not take effect document that he has acquired
until six months after its the absentee's property by
publication in a newspaper of purchase or other title.
general circulation. (186a)
In these cases the trustee or
Sec. 7. Who may be
administrator shall cease in the
appointed. In the appointment
performance of his office, and
of a representative, the spouse
the property shall be placed at
present shall be preferred when
the disposal of those who may
there is no legal separation. If
have a right thereto.
the absentee left no spouse, or
if the spouse present is a minor cf Arts. 389 NCC
or otherwise incompetent, any Art. 389. The administration shall
competent person may be cease in any of the following cases:
appointed by the court. (1) When the absentee appears
personally or by means of an
In case of declaration of
agent;
absence, the trustee or
administrator of the absentee's (2) When the death of the absentee
is proved and his testate or
property shall be appointed in intestate heirs appear;
accordance with the preceding
(3) When a third person appears,
paragraph.
showing by a proper document
cf Arts. 383 NCC that he has acquired the
absentee's property by purchase or
Art. 383. In the appointment of a other title.
representative, the spouse present
shall be preferred when there is no In these cases the administrator
legal separation. shall cease in the performance of
his office, and the property shall
If the absentee left no spouse, or if be at the disposal of those who
the spouse present is a minor, any may have a right thereto. (190)
competent person may be
appointed by the court. (183a) When admininstration terminates
Sec. 8. Termination of .1 absentee appears personally or
administration. The trusteeship by means of an agent;
or administration of the .2 death of the absentee is proved
property of the absentee shall and his testate or intestate
cease upon order of the court heirs appear;
in any of the following cases:
.3 a third person appears, showing
(a) When the absentee by a proper document that he
appears personally or by means has acquired the absentee's
of an agent; property by purchase or other
(b) When the death of the title.
absentee is proved and his
4. Presumption of
testate or intestate heirs
appear; Death (Arts. 390-

Remedial Law Reviewer Mark de Leon, JD 2001

 142

391 NCC, Art. 41 and void, unless before the

FC) celebration of the subsequent
marriage, the prior spouse had
Art. 390. After an absence of been absent for four
seven years, it being unknown consecutive years and the
whether or not the absentee spouse present has a well-
still lives, he shall be presumed founded belief that the absent
dead for all purposes, except spouse was already dead. In
for those of succession. case of disappearance where
The absentee shall not be there is danger of death under
presumed dead for the purpose the circumstances set forth in
of opening his succession till the provisions of Article 391 of
after an absence of ten years. If the Civil Code, an absence of
he disappeared after the age of only two years shall be
seventy-five years, an absence sufficient.
of five years shall be sufficient For the purpose of
in order that his succession contracting the subsequent
may be opened. (n) marriage under the preceding
Art. 391. The following shall paragraph the spouse present
be presumed dead for all must institute a summary
purposes, including the proceeding as provided in this
division of the estate among Code for the declaration of
the heirs: presumptive death of the
absentee, without prejudice to
(1) A person on board a the effect of reappearance of
vessel lost during a sea voyage, the absent spouse. (83a)
or an aeroplane which is
missing, who has not been Periods for presumption of death
heard of for four years since .1 opening of succession
the loss of the vessel or
aeroplane; a. Ordinary absence

(2) A person in the armed 1) disappears at age 76 and

forces who has taken part in up – 10 years
war, and has been missing for )1 disappears at age 75
four years; and below – 5 years
(3) A person who has been .b Absence under dangerous
in danger of death under other circumstances – 4 years
circumstances and his
.2 For remarriage
existence has not been known
for four years. (n) .a Ordinary absence - 4 years
Art. 41. A marriage .b Absence under dangerous
contracted by any person circumstances – 2 years
during subsistence of a .3 all other purposes
previous marriage shall be null

Remedial Law Reviewer Mark de Leon, JD 2001


.a ordinary absence – 7 years
.b Absence under dangerous
circumstances – 4 years
Note that it is only for the purpose
of remarriage (Art. 41 FC) and
succession (Jones v. Hortiguela, 64
Phil 179) that a judicial declaration
of presumptive death is necessary.
For all other purposes, the
presumption attaches without
necessity of a court declaration.
Instances of absence under
dangerous circumstances
(Extraordinary absence)
.1 on board a lost or missing
vessel or aeroplane
.2 missing from the armed forces
who has taken part in war
.3 in danger of death under other
circumstances
Art. 392. If the absentee
appears, or without appearing
his existence is proved, he shall
recover his property in the
condition in which it may be
found, and the price of any
property that may have been
alienated or the property
acquired therewith; but he
cannot claim either fruits or
rents. (194)
If the absentee reappears after he
has been
.1 declared absent – may recover
property from administrator in
the condition in which it may be
found; recover property
disposed with court approval or
its price, but he can not recover
fruits or rents or interest or
damages
Remedial Law Reviewer
143
.2 presumed dead – may recover
properties already disposed,
subject to the extraordinary
acquisitive prescription; he can
not recover fruits or rents or
interest or damages
M. Rule 109: Appeals
in Special Proceedings
Sec. 1. Orders or judgments
from which appeals may be
taken. An interested person
may appeal in special
proceedings from an order or
judgment rendered by a Court
of First Instance or a Juvenile
and Domestic Relations Court,
where such order or judgment:
(a) Allows or disallows a
will;
(b) Determines who are the
lawful heirs of a deceased
person, or the distributive
share of the estate to which
such person is entitled;
(c) Allows or disallows, in
whole or in part, any claim
against the estate of a deceased
person, or any claim presented
on behalf of the estate in offset
to a claim against it;
(d) Settles the account of
an executor, administrator,
trustee or guardian;
(e) Constitutes, in
proceedings relating to the
settlement of the estate of a
deceased person, or the
administration of a trustee or
guardian, a final determination
in the lower court of the rights
of the party appealing, except
that no appeal shall be allowed
Mark de Leon, JD 2001
 144

from the appointment of a a motion for a new trial or for

special administrator; and reconsideration.
(f) Is the final order or Sec. 2. Advance distribution
judgment rendered in the case, in special proceedings.
and affects the substantial Notwithstanding a pending
rights of the person appealing, controversy or appeal in
unless it be an order granting proceedings to settle the estate
or denying a motion for a new of a decedent, the court may, in
trial or for reconsideration. its discretion and upon such
terms as it may deem proper
Appealable special proceedings
and just, permit that such part
orders
of the estate as may not be
.1 Allows or disallows a will; affected by the controversy or
.2 Determines who are the lawful appeal be distributed among
heirs of a deceased person, or the heirs or legatees, upon
the distributive share of the compliance with the conditions
estate to which such person is set forth in Rule 90 of these
entitled; rules.
.3 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;
.4 Settles the account of an
executor, administrator, trustee
or guardian;
.5 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
.6 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

Remedial Law Reviewer Mark de Leon, JD 2001