SPECIAL PROCEEDINGS

NOV. 11, 2010

Rule 72
Sec. 1
- Sec. 1 enumerates the subject matter. This enumeration is not exclusive.
- There are other special proceedings found in substantive laws, like:
o 1. Summary judicial proceedings under the Family Code
o 2. Declaration of status of children as abandoned, dependent or neglected under
PD 603.
o 3. Suspension, termination or restoration of parental authority
o 4. Voluntary rehabilitation of a drug dependent under RA 9165 (Dangerous Drugs
Law)
o 5. Writ of amparo
o 6. Writ of habeas data
Sec. 2
- Do you apply the rules applicable to ordinary actions?
o Yes, as far as practicable.
- What is a special proceeding?
o It is an application or proceeding to establish status or right of a party or a
particular fact
o STATUS for example: annulment of marriage
o RIGHT OF PARTY for example: right to be free (habeas corpus); right not to be
threatened, that is threat to life or liberty (writ of amparo); right to privacy (writ
of habeas data)
- In special proceedings, the remedy is granted generally upon application of motion.
- Liquidation of an insolvent corporation is a special proceeding.
- Petition for declaration of nullity is a special proceeding.
- Nature proceeding in rem. So almost always, there is publication. And the judgment is
juridically binding against the whole world.
- How do you distinguish special proceedings from ordinary action?
o Ordinary action or special action one sues another in a court of justice for the
enforcement or protection of a right or the redress or prevention of a wrong;
special proceeding establish a status or right of a party or a particular fact
o In ordinary action we talk about cause of action (Elements: rights of the
plaintiff, obligation on the part of the defendant, violation of the right of plaintiff
by the defendant, causing damage or prejudice to the plaintiff); not so in special
proceeding
o In ordinary there must be a formal demand; not so in special proceeding
o A special action falls within the jurisdiction of a court of general jurisdiction,
that is ordinary civil actions; special proceeding within a court of limited
jurisdiction, e.g. probate court a court of limited jurisdiction
o In ordinary action if the suit involves members of the same family, plaintiff
must allege earnest efforts to have the case amicably settled among the heirs;
that is not applicable to special proceedings
In a recently decided case, one of the heirs filed a petition for issuance of
letter of administration intestate/testate. The co-heirs filed a motion to
dismiss because the petitioner failed to allege earnest efforts as required
by law. SC said, not required because a special proceeding,
intestate/testate, is not a suit. So the rule on earnest efforts applies to
ordinary civil actions only.
o Special proceeding is commenced by application, motion or petition. Action
by complaint.
o Special proceeding is as a rule, not an adversarial action (no plaintiff, no
defendant); action an adversarial action
o Special proceeding terminated either by decision, like change of name, or
order, like rehabilitation of a drug dependent, if not, decreed, like decree of

adoption; action is terminated by judgment or decision

Rule 73
-

Rule 73 is venue not jurisdictional.

GR: There must be judicial administration when the court issues letters of
administration because if no administration, the creditors might cause chaos (levies
any kinds of properties), thus, there must be judicial administration.

Sec. 1
-

Where is the estate of the deceased person settled?

o It depends upon whether the deceased is a resident or non-resident, inhabitant
or non-inhabitant.
o If decedent is inhabitant, whether citizen or alien, his will shall be proved or
letters of administration granted and his estate settled in the proper court
because of RA 7691 (the law expanding the jurisdiction of the MTC). RA 7691, if
the gross value of the estate is more than 400K, RTC. Less or 400K, MTC. In the
proper court in the province in which the decedent resides at the time of his
death.
o If he is an inhabitant of a foreign country, then, province in which he had stayed.
Now, there is a rule of exclusion. The first court taking cognizance of the proceedings
excludes all other courts. The rule says that jurisdiction assumed by a court, so far as it
depends on the place of residence of the decedent or location of the estate, shall not
be contested in a suit or proceeding except in appeal from that court in the original
case or when the want of jurisdiction appears on the record.
Residence here is actual residence, not domicile. Domicile applies only to election law.
The estate is a distinct personality separate and distinct from the heirs. If there are
suits between the heirs, the estate should not be included.
The estate of a deceased person is a juridical entity that has a personality of its own,
independent of the heirs, and considered a person. So that the death of the
administrator or administrators does not have the effect of divesting the court of
jurisdiction. Jurisdiction subsists because the proper party is the estate of the decedent.
The administrator or executor is only a representative of the estate. So the estate of
the decedent is an indispensable party. It is the real-party-in-interest.
Proceedings for settlement of estate, generally, are proceedings to the settlement of a
deceased person for the benefit of the creditors and those entitled to the residue,
meaning the heirs, after paying debts, expenses, taxes, so kung unsay nahabilin,
residue shall be distributed to the heirs.
Nature of administration proceedings in rem. Probate court acquires jurisdiction over
the heirs, legatees, devisees, and other interest persons, like creditors, by means of
publication or notice to the interested parties. Kung in rem gani, usually, publication
gyud nah to bind the whole world, just like application for land title.
The phrase here so far as it depends on the place of residence of the decedent or the
location of his estate is in reality a matter of venue. So if not one of the heirs,
legatees, devisees, interested persons, like creditors, object to venue, then the
objection is waived. It is also a rule of law in our jurisdiction that the court cannot motu
proprio dismiss an action or special proceeding on the ground that venue is improperly
laid there must be a motion.
Upon the allowance of the will, proceedings are terminated. But after the allowance of
the will, which settles only the extrinsic validity of the will, the case is terminated and
the probate court loses jurisdiction.
The petition for settlement of estate is different and distinct from and is not a
continuation of the petition for probate of the will. So that the probate court, which
earlier probated the will, in the case of holographic will, cannot claim jurisdiction over
the settlement of the estate filed after the death of the testator. The probate court,
which probates the will, and the probate court which settles the estate, will be one and
the same only when the probate of a will is made after the testator dies.
Apply the doctrine of exclusion the court which first acquires jurisdiction by the filing

of the petition excludes all other courts.

NOTE: If a testator dies and there is a custodian of the will and the custodian delivers
the will to the court without filing a petition for probate, it is the task of the court to fix
the time and date of probing the will. Mu-file lng ka, imo lng gdeliver sa court without
proper pleadings, the court has already acquired jurisdiction to probate the will. But you
have to pay docket and other lawful fees.
If a will is delivered to the court, there shall be no separate filing of probate because
the rule is the court first acquiring jurisdiction excludes other courts. With more
reason, there shall be no petition for intestacy.
Proceedings for the settlement of the estate of a decedent may be testate where
there is a will, intestate if there is no will.
Jurisdiction depends upon the gross value. Now 400K.
A probate court is a court of limited jurisdiction.
The question of ownership or title to property is extraneous in the probate proceedings.
Probate court cannot decide with finality the issue of ownership or title to property. It
can provisionally settle the issue of title of ownership for purposes only of including the
real estate in the inventory.
The long standing rule is that probate courts or those in charge of proceedings, whether
testate or intestate, cannot adjudicate or determine title to properties claiming to be
part of the estate and is claimed to belong to outside parties. (Cortes vs CA) Exception:
o 1. When the parties are all heirs of the decedent, then they have the option to
submit the issue of title or ownership to the probate court. Kung naay third
persons nga ma prejudice, dli puydi. But if all of them agreed that the probate
court shall, with finality, resolve the issue of ownership, then the probate court
may take cognizance of the case.
o
2. When the claimant of the property and all other parties having interests
(heirs, devisees, legatees, creditors), expressly or impliedly, submit the question
of ownership to the probate court for the interest of third persons are not thereby
prejudiced. Although generally, a probate court may not decide the question of
title or ownership, yet if the interested parties are all heirs or the question is one
of probation or advancement or the parties consent to the assumption of
jurisdiction by the probate court and rights of third parties are not prejudices,
then the probate court is competent to decide the question of ownership.
Now an incident which might arise in connection with special proceedings such as the
following:
o 1. Impugning the validity of the will;
o 2. Objecting to the authentication thereof;
o 3. And all demands and claims filed by an heir, legatee, devisee, or party-ininterest to the testate or intestate succession
shall be acted upon and decided in the same proceeding
GR: Probate court cannot issue a writ of execution. Walay executory process ang special
proceedings probate. Writ of execution, general rule, ari rani sa ordinary civil actions.
o REASON: Because its orders usually refer to the adjudication of claims against
the estate which the executor or administrator may satisfy without the necessity
of resorting to a writ of execution.
o Exceptions where a writ of execution in special proceedings may be issued:
1. To satisfy distributive shares of devisees, legatees and heirs in
possession of decedents assets.
ex. na distribute na adto sa mga heirs ang properties, naay nikalit tunga nga creditor or
one heir who was excluded. So, mo contribute sila kato nakadawat na.
Suppose nabaligya na nila? What is the remedy. recovery. so writ of execution will issue
another exception
2. to enforce payment of expenses of partition
illustration: ang mga heirs nag partition sa property, they hired a geodetic engineer,
unya notarized man, notary public, naa gyuy bayranan, so mag amot. ang katong dili
mu amot, WRET OF EXECUTION (lolz)

3. then to satisfy the cost when a person is cited for examination in probate
proceedings
sec. 2
Where estate or property upon death of spouse settled
If marriage is dissolved then community property shall be inventoried, administered,
and liquidated and the debts paid, etc. in the testate/intestate proceedings of the
deceased spouse
If both have died, then in the testate or intestate proceedings of either
Husband and Wife, X and Y, borrowed money, 500k, the wife died. The creditor filed an
action for sum of money against the husband. Puyde ba? NO!
It must be in the testate/intestate proceedings of the deceased spouse. Remember
conjugal partnership ceases upon dissolution of marriage.
Where there are no debts to pay, the liquidation and partition may be made in an
ordinary action.
When the interested parties, children and the widow, have already reached a
compromise agreement for a viable consideration, the widow renounced in favor of the
children all interest and rights in the estate of the deceased, it is no longer necessary to
prepare an inventory of the conjugal properties and make a liquidation.
Sec. 3 Process
Unsa may process sa testate/intestate proceedings? Sec. 3 dili mo makabasa diha ug
writ of execution, it only says may issue warrants and processes necessary to compel
the attendance of witnesses or to carrying into effect their orders or judgment and all
other powers granted them by law
Usually kung dili ka mu tuman, contempt of court.
If the person does not perform an order or judgment it may issue warrant for the
apprehension and imprisonment of such person until he performs such order or
judgment for his release
Sec. 4 Presumption of death
Dili lang ta mag discuss kay tapos na ninyo sa sevel low, and i know u have mastered
sevel low (class: hilaw nga katawa*)
Judicial Declaration of Presumptive Death cannot become final. Of course you know
that.
Rule 74
Sec. 1, extra judicial settlement of estate between heirs and Sec. 2, summary
settlement of estates of small value
As i said, the general rule is judicial administration. So that ang mga creditors dili
magkagubot. Naay mo bira sa 6x6 truck, naay mu bira sa balay, nya gubot kaayo sa
tana. so aron hapsay, dunay testate/intestate proceedings, the executor or
administator will of course receive claims from the creditors
There are two exceptions, meaning no Judicial Administration
1. Sec. 1, extra judicial settlement by agreement between heirs
2. Sec. 2, summary settlement of estate of small value
The second seems obsolete, pero sigi lang kay naa may rules of court and it may still
apply.
Extra judicial settlement by agreement between heirs, two or heirs for example
when applicable: if the decedent left no will and no debts
Kay kaning administration as i said, kung naay utang, para dili gyud magkagubot
the heirs are all of legal age or if there are minors they are represented
So what shall be done?
The parties may without securing letters of administration divide the estate among
themselves as they see fit. By means of public instrument among themselves filed with

the office of the register of deeds.

So no will and no debts. Heirs are all of legal age.
What document shall they prepare? Deed of Extrajudicial Settlement by Agreement,
know by all men these present (ambot unsa ni)
Suppose they disagree, dili magkasabot ang igsoun. Then they shall resort to an
ordinary action of partition. Again, no judicial administration. Kay unsa may mahimo,
sila raman sad, so partition.
Suppose there is only one heir, unsa may agreement nga siya raman usa?No? What is
the procedure? He may adjudicate to himself the entire estate. How? By executing an
affidavit of self adjudication. File with the register of deeds.
Whether it is by agreement or by affidavit of self adjudication, the distributee/s shal
post a bond, filed with the register of deeds. How much? In an amount equivalent to the
value of the personal property involved. Ang bond, required lang kung personal
property. Kung real property ang gibahin, no bond, okay?
Then what is the condition of the bond? Conditioned upon the payment of any just
claim that may be filed under section 4 of this rule. Posible man paghuman sa partition
or paghuman submit sa extrajudicial settlement, naay mo tunga na creditor or naay
mutunga na heir who was not able to participate. So that is the purpose of the bond.
It shall be presumed that the decedent left no debts if no creditor files a petition or letters of
administration within two years after the death of the decedent.
Sec. 1 requires publication in a newspaper of general circulation. but no extrajudicial
shall be binding upon any person who has not participated therein or who had no notice
thereof
Now even when a coheir did not execute any affidavit recognizing extrajudicial
partition. However where he was present during the trial and did not take the witness
stand and object, then he is estoppd from denying the extrajudicial partition.
Gen. Rule : Judicial Partition
Exceptions:
1. Summary Settlement
2. Extrajudicial Partition
Gen Rule: When a person dies intestate or testate but fails to name an executor of his
will or the executor is incompetent/refuses to accept the task, or executor fails to
furnish bond required by the rules of court, the the decedents estate shall be judicially
administered and the competent court shall appoint an administrator.
Sec. 1 rule 74 does not preclude the heirs from instituting administrator proceedings,
even if the estate has no debts or obligation if for good reasons they do not resort to
ordinary action of partition.
Is oral partition valid? Yes it is valid. But of course you cannot have title to yourself. Inig
adto nimo sa Register of Deeds, inig bahin nimo, unsa man, oral?aw dili nana magsilbi.
So there must be a written partition kung gusto naka magpatitle.
The requirement that a partition be put in a public document and registered has for its
purpose protection of the creditors and of the heirs themselves against party claims.
The object of registration is to serve as constructive notice to others.
No law requires partition among heirs to be in writing and be registered in order to be
valid (Vda De Reyes vs CA)
Reason: Partition among heirs is not legally deemed conveyance of property
considering that it involves not a transfer from one to another but rather a confirmation
or ratification of title or right to property that an heir is renouncing in favor of another
heir who accepts and receives the inheritance.

Diba inig kamatay sa parents, title passes to the heirs. So there is no conveyance.
Iconfirm lang. Are you heirs?Yes. So gi confirm lang ang ownership of the heirs.(ears)
Now what are the remedies against extra judicial settlement approved by the court?
X, Y, and Z, heirs, naghimo sila ug deed of extra judicial partition. Naa d i na prejudice,
half brother or unsa. So what is the remedy of the excluded ear(heir).
Either file a petition for relief under rule 38, nakahinumdum mu? The judgment has
already become final and executory but because of fraud, accident, mistake, excusable
negligence a party is prejudiced. File a petition for relief. There are two periods, is it
not? 6 months and 60 days.
The other remedy is to file a petition to anOL(annul) the extra judicial settlement.
Annulment here is under rule 47, lack of jurisdiction and extrinsic fraud. Period
limitation is 4 years from the discovery of the fraud.
Even a petition(?) for issuance of letters of administration has been filed, the court
upon motion may convert the petition into a petition for partition, to avoid delay where
the decedent left no debts and the heirs and legatees are all of age.
What are the requirements for validity under section 1.
1. decedent left no debts
2. heirs and creditors all of legal age
3. partition by means of public instrument or affidavit
A written partition or extrajudicial settlement duly acknowledged before a notary public
is necessary to enable the heirs to register the same and secure a transfer certificate of
title of the land which has been adjudicated to them.
Of course do not forget payment of taxes. Dili gyud na ma transfer without payment of
taxes.
A judicial partition in probate or intestate proceedings bind the heirs who are not
parties thereto.
Sec. 2, summary settlement of estate of a small value
Again no judicial administrator because the gross value of the estate is 10k only. nganu
ni ingon man ko obsolete? You have to file a petition with the court. So you have to hire
a lawyer, 10k ra. Acceptance fee 20k. asa naman 10k? Publication in a newspaper of
general circulation, 3 successive weeks. Pila man per publication, kung sunstar i think
its 5k or 10k. So hain naman ang estate of e-small value? Papas. But mahitabu gihapon
ni. Even if the property is worth 10k, kung duna nay sentimental value to you, it may be
worth 1melyon to you.(char)
So what is the procedure? Determine the value. Gross value of the estate not exceeding
10k. So necessarily ani ni sya sa MTC, kaning RTC diri sayop ra ni ha.
How will you commence? File a petition.
Who will file? Interested person.
After filing, notice then hearing.
So notice to interested persons for may proceed summarily without delay.
And grant a proper allowance of the will bisag 10k ra. no?
Then to determine who are the persons entitled to participate in the estate and to
apportion and divide it among themselves. SO na distribute.
Ang distributees are required to post bond under section 3. That is before allowing the
partition or to require the distributees a property other than real (blah?), so personal na
jd ni.
File ka ug bond, what is the condition of the bond? For the payment of any just claim which
may be filed under sec. 4. So recess. One hour. hikhik
---class: ahh grabihaaaa, *laughter
mai2x: salva, ikaw daw mu transcribe

salva: diii madaaa oi

Mai2x: wa daw mo transcribe, hikhik
(pero ang ending kami ni maimai ang nag transcribe T_T)
SPECIAL PROCEEDINGS
NOV. 11, 2010 (PART 2)
Sec. 4. Liability of distributees and estate. - If it shall appear at any time within two
(2) years after the settlement and distribution of an estate in accordance with the
provisions of either of the first two sections of this rule, that an heir or other
person has been unduly deprived of his lawful participation in the estate, such heir
or such other person may compel the settlement of the estate in the courts in the
manner hereinafter provided for the purpose of satisfying such lawful
participation. And if within the same time of two (2) years, it shall appear that
there are debts outstanding against the estate which have not been paid, or that
an heir or other person has been unduly deprived of his lawful participation
payable in money, the court having jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of such debts or lawful participation and
order how much and in what manner each distributee shall contribute in the
payment thereof, and may issue execution, if circumstances require, against the
bond provided in the preceding section or against the real estate belonging to the
deceased, or both. Such bond and such real estate shall remain charged with a
liability to creditors, heirs, or other persons for the full period of two (2) years
after such distribution, notwithstanding any transfers of real estate that may have
been made.
-

Liability of distributes
o

So they sign an extrajudicial settlement. 2 years later or within 2 years,

somebody came forward and says that I am a creditor or an heir. Thats Sec. 4.

If it shall appear, at any time within 2 years after the settlement and distribution
of the estate, that an heir or other person has been unduly deprived of his
participation. So what is the right of that person who was unlawfully excluded?

Suppose within 2 years, it was discovered that there are debts outstanding
against the estate which has not been paid or that an heir or person has been
unduly deprived of his lawful participation, what shall the court do?

It shall order to settle the amount of such debts or lawful participation and
order how much and in what manner each distributee shall contribute in
payment thereof.

If the distributee failed or refused to contribute, then, a writ of execution

may be issued. That is writ against the bond or against the real estate
belonging to the deceased or both.

What is the purpose of the bond?

Answer: Compel the settlement of the estate in the courts. What is the
purpose? For the purpose of satisfying such lawful participation.

Those who have been deprived of their rights may go after the bond or file
an action to recovery of their share in the real property.

When is the 2-year-period to object not applicable?

The provision barring distributee or heirs from objecting to an extrajudicial

partition after the 2-year-prescriptive period is applicable only to persons
who have participated or taken part or had notice of the extrajudicial
partition and in addition, when the provision of Sec. 1 Rule 74 has been

complied with.

Without the participation of all persons involved in the proceedings, the

extrajudicial settlement cannot be binding on said persons.

If you buy a parcel of land, be sure to investigate because if you failed to

investigate the history of the title, you cannot claim good faith and the
sale or mortgage of the land to you may be voided.

Heirs are not required to respond with their personal property for the death of
the deceased ancestor.

Sec. 5. Period for claim of minor or incapacitated person. - If on the date of the
expiration of the period of two (2) years prescribed in the preceding section the
person authorized to file a claim is a minor or mentally incapacitated, or is in prison
or outside the Philippines, he may present his claim within one (1) year after such
disability
is
removed.
-

Period for claim of minor or incapacitated person

o

If on the date of the expiration of the 2-year-period, the person authorized to file
a claim is a minor or incapacitated person, he may present his claim within 1
year after such disability is removed.

How do you distinguish extrajudicial settlement (EJS) from summary settlement

(SS)?

1. EJS no debts; SS there may be debts, in fact, anyone may claim

within 2 years.

2. EJS no will; SS there may be a will

3. EJS no judicial proceeding; SS judicial because you have to file a

petition

Now the heirs and distributes are liable despite transfers of their shares.

RULE 75
PRODUCTION OF WILL;
ALLOWANCE OF WILL NECESSARY
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.
-

No will shall pass, real or personal property, unless it is proved and allowed. Subject to
the right of appeal, such allowance of the will shall be conclusive as to its due execution
(extrinsic).

2 kinds of wills:
o

1. Notarial will executed with the intervention of the notary public under the
Civil Code. There are also attesting witnesses.

2. Holographic will in accordance with Art. 810, one that is entirely written,
dated, and signed by the hand of the testator himself.

Purpose of probate:
o

To definitely settle all questions concerning capacity of the testator, proper

execution and witnessing of the will and testament irrespective of whether the
provisions are valid and enforceable.

Probate courts inquiry is limited to the extrinsic validity of the will.

In order that a will may take effect, it has to be probated, legalized or allowed in the
proper testamentary proceeding.

GR: Extrinsic validity of a will is not considered since consideration thereof comes only
after the will has been proved and allowed. But there is an exception.
o

E: Where the intrinsic validity was first determined as when the defect of the will
is apparent on its face and the probate of the will will become a useless
ceremony if it is intrinsically invalid.

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.
-

What is the duty of custodian of the will?

o

Duty is to deliver the will to the court or to the executor within 20 days after
knowledge of the death of the testator.

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.
-

It is the task of the executor to present the will and accept or refuse the trust. So he
shall signify 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.
-

Under Sec. 4, a custodian or an executor who neglects any of his duties under the last 2
preceding sections shall be subject to fine.

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
committed to prison and there kept until he delivers the will.
-

A person retaining the will or who neglects without reasonable cause to deliver the will
may be committed to prison and there kept until he delivers the will.

RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
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.
-

Who may petition for the allowance of the will?

o

The following:

1. Executor

2. Devisee

3. Legatee named in a will

4. Or any other person interested in the estate, like the creditor

When shall the petition be filed?

o

At any time after the death of the testator.

The rule on prescription or reglementary period does not apply because no will
shall pass either real or personal property unless the will is proved and allowed.

Now, petition must be filed whether the will is in the possession of the petitioner or
even if the will is lost or destroyed because if the will is lost or destroyed, then the
petitioner must prove its loss or destruction in accordance with the Rules.

Testator himself, during his lifetime, may petition the court for the allowance of the will.

What is the meaning of the phrase person interested in the estate?

o

This phrase refers to an heir or one who has a claim against the estate such as
the creditor.

What is the reason why probate may be allowed during the lifetime of the testator?
o

According to the SC in a case, it is far easier for the courts to determine the
mental condition of the testator during his lifetime than after his death. That
probate during the testators life will lessen the number of contests.

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 administration with the will annexed.
-

Contents of petition:
o

1. Jurisdictional facts

2. Names, ages, and residences of the heirs, legatees and devisees of the
testator or decedent

3. Probable value and character of the property of the estate

It is not actual value but probable value only because some properties
may be excluded or included. There may be collation.

Character real or personal, corporeal or incorporeal, capable of manual

delivery or not capable of manual delivery

4. Name of person for whom letters are prayed

5. If the will has not been delivered to the court, the name of the person having
custody of it

Annexing of the original of the will in the petition is not a jurisdictional requirement. The
petitioner may present a machine copy or Xerox copy only subject of course to the
presentation of the original copy under the best-evidence rule.

We have a new rule on electronic evidence. An electronic document is a functional

equivalent of a paper-based document.

What is the next step?

o

Sec. 3

Sec. 3. Court to appoint time for proving will. - Notice thereof to be published.
When a will is delivered to, or a petition for the allowance of a will is filed in, the
court having jurisdiction, such court shall fix a time and place for proving the will
when all concerned may appear to contest the allowance thereof, and shall cause
notice of such time and place to be published three (3) weeks successively,
previous to the time appointed, in a newspaper of general circulation in the
province.
But no newspaper publication shall be made where the petition for probate has
been filed by the testator himself.
-

The court shall fix the time and place for probate of the will, then, cause notices to be
sent, then publication in the newspaper of general circulation three weeks successively.
If filed by the testator himself, no publication is required.

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.
-

Services of notice on individual heirs or legatees or devisees is a matter of procedural

requirement, not a jurisdictional requirement.

How shall the heirs, devisees, legatees and executors be notified?

o

Either by mail or personally at their places of residence.

Notice must likewise be furnished the executor.

Personal service of the notice at least 10 days before the hearing, shall be equivalent
to mail.

Sec. 5. Proof at hearing. - What sufficient in absence of contest. At the hearing

compliance with the provisions of the last two preceding sections must be shown
before the introduction of testimony in support of the will. All such testimony shall
be taken under oath and reduced to writing. If no person appears to contest the
allowance of the will, the court may grant allowance thereof on the testimony of
one of the subscribing witnesses only, if such witness testify that the will was
executed as is required by law.
In the case of a holographic will, it shall be necessary that at least one witness who
knows the handwriting and signature of the testator explicitly declare that the will
and the signature are in the handwriting of the testator. In the absence of any such
competent witness, and if the court deem it necessary, expert testimony may be
resorted to.
-

Then hearing presentation of evidence

At the hearing, the lawyer must show compliance with the provisions of Secs. 3 and 4
Rule 76. Then, present testimonial evidence.

If no person appears to contest the will, meaning there is no oppositor, then only
testimony of 1 person is required if the witness testify that the will is executed as is
required by law.

How about holographic will?

o

1 witness who knows the handwriting and signature of the testator explicitly
declared that the will and the signature are in the handwriting of the testator.

The court may resort to expert testimony.

Sec. 6. Proof of lost or destroyed will. - Certificate thereupon. No will shall be

proved as a lost or destroyed will unless the execution and validity of the same be
established, and the will is proved to have been in existence at the time of death of
the testator, or is shown to have been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, nor unless its provisions are clearly
and distinctly proved by at least two (2) credible witnesses. When a lost will is
proved, the provisions thereof must be distinctly stated and certified by the judge,
under the seal of the court, and the certificate must be filed and recorded as other
wills are filed and recorded.
-

Burden of proof is on the proponent.

What is the procedure in proving lost or destroyed will? What shall the proponent do?

First, prove the execution and validity of the will and that the will is proved to
have been in existence at the time of the death of the testator. He might have
destroyed it before his death.

Or is shown to have been fraudulently or accidentally destroyed in the lifetime of

the testator without his knowledge. So there was really no intention to revoke.

Nor unless its provisions are clearly and distinctly proved by at least 2 credible
witnesses.

Suppose there is lack of opposition, will that relieve the proponent of establishing due
execution?

Answer is in the negative. He must still prove due execution of the will.

Sec. 7. Proof when witnesses do not reside in province. - If it appears at the time
fixed for the hearing that none of the subscribing witnesses resides in the
province, but that the deposition of one or more of them can be taken elsewhere,
the court may, on motion, direct it to be taken, and may authorize a photographic
copy of the will to be made and to be presented to the witness on his examination,
who may be asked the same questions with respect to it, and to the handwriting of
the testator and others, as would be pertinent and competent if the original will
were present.

Suppose the witnesses do not reside in the province, what shall be done?
o

Sec. 7. Take the deposition and the photocopy of the will may be presented to
the deponents.

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.

Suppose the witnesses are dead or insane, what shall be done?

o

The court may admit testimonies of other witnesses to prove sanity of the
testator, due execution of the will, etc.

Sec. 9. Grounds for disallowing will. - The will shall be disallowed in any of the
following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at
the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of
the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his signature
thereto.
-

Grounds for disallowance:

o

1. Not executed and attested as required by law

2. Testator was insane, or otherwise mentally incapable to make a will, at the

time of its execution

3. Executed under duress, or the influence of fear, or threats

4. Procured by undue and improper pressure and influence, on the part of the
beneficiary, or some other person for his benefit

5. Signature of the testator was procured by fraud or trick, and he did not intend

that the instrument should be his will at the time of fixing his signature thereto
-

On the issue in the probate of will, it is extrinsic validity pertaining to the testamentary
capacity and compliance with the normal requirements of solemnities as prescribed by
law.

Intrinsic validity relates to descend and distribution. It should come later.

Sec. 10. Contestant to file grounds of contest. - Anyone appearing to contest the
will must state in writing his grounds for opposing its allowance, and serve a copy
thereof on the petitioner and other parties interested in the estate.

Suppose there is an oppositor or contestant, contestant or oppositor shall state in

writing the grounds for opposing the will.

When may a person be allowed to intervene or to contest?

o

He must have an interest in the estate or in the will or in the property to be

affected by either as executor or claimant of the estate.

An interested party has been defined as one who benefited by the estate such as
an heir, or one who has a claim against the estate, like a creditor.

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
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.
-

When shall subscribing witnesses be produced?

o

If the will is contested, all the subscribing witnesses, including the notary public,
in the case of will executed under the Civil Code, if present. So they must be
produced and examined.

If they are residing out of the province, then take the deposition.

The will may be allowed if the court be satisfied from the testimony of witnesses and
from evidence presented that the will was executed and attested in the manner
required by the Civil Code.

What if the will contested is holographic will? How many witnesses?

o

At least 3 witnesses who know the handwriting of the testator and explicitly
declare that the will and the signature and the handwriting of the testator.

In the absence of competent witnesses, the court may invite expert witnesses.

Objective of solemnities of execution of will. What is the purpose of probating nonholographic will?:

To close the door against bad faith and fraud

To avoid substitution of wills and testaments

To guaranty the truth and authenticity

These formal solemnities include subscription, attestation and acknowledgment

required under Art. 805 Civil Code.

What law governs forms of will?

o

Law enforced at the time of execution of the will governs the validity of the will
as to form.

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.

Testator must affirm that the holographic will and the signature are his own
handwriting. It shall be sufficient evidence of the genuineness and due execution.

If contested, the burden of disproving genuineness and due execution shall be on the
contestant.

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.
-

When shall the certificate of allowance be issued and where shall it be recorded?
o

If court is satisfied that the will was duly executed, testator was of sound and
disposing mind, no vice of consent, then a certificate of allowance signed by the
judge, attested by the seal of the court, shall be attached to the will. And the will
and certificate filed and recorded by the clerk of court.

What are the steps in the allowance of wills? Summary:

o

First, a will is delivered to or a petition for allowance of the will is filed in the
court of proper jurisdiction. Bisan gideliver rana siya, the court will acquire
jurisdiction upon its receipt of the will, even if there is no petition.

Second, court shall fix the time and place of hearing or proving the will.

Third, notice of time and place which should be published 3 successive weeks in
the newspaper of general circulation.

Fourth, probate.

Last, allowance or disallowance.

RULE 77
ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF
ESTATE THEREUNDER
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.ch
-

This is a situation where there is a will proved and allowed abroad and the decedent
has property or properties in the Phils.

There are 2 kind of administration:

o

1. Principal administration abroad

2. Ancillary administration here in the Phils.

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.

A will proved outside the Phils. may be allowed, filed and recorded by the proper court.

What is the task of the court?

o

Copy of the will and order or decree of allowance, authenticated by the executor
or person interested. So court is required to fix the time and place of hearing.

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.

After hearing, what happens?

o

Sec. 3

If it appears that the will shall be allowed in the Phils., then the court shall allow it and
the certificate of its allowance shall be issued.

A foreign will which has been executed and probated in a foreign country in accordance
of the laws of that foreign country may be reprobated in the Phils. so kung giprobate
abroad, unya dad-on sa Phils. kay naai property dnhi sa decedent, its called reprobate.

Subject matter: property of the decedent in the country

Now, in our jurisprudence, Phil. courts cannot take judicial notice of foreign laws and
procedures. Kung unsai law sa uban country, its not a question of law here, its a
question of fact. You have to prove. The only exception perhaps is if the foreign law is a
generally accepted principle of international law which becomes part of the law of the
land because of the doctrine of incorporation. So there is a necessity of presenting
evidence on the foreign laws upon which the probate in the foreign country was done.
In the absence of proof of that probate law and procedure, it is presumed that the law
and procedure there is the same as our procedure here in the Phils.

Sec. 4. Estate, how administered. - When a will is thus allowed, the court shall
grant letters testamentary, or letters of administration with the will annexed, and
such letters testamentary or of administration, shall extend to all the estate of the
testator in the Philippines. Such estate, after the payment of just debts and
expenses of administration, shall be disposed of according to such will, so far as
such will may operate upon it; and the residue, if any, shall be disposed of as is
provided by law in cases of estates in the Philippines belonging to persons who are
inhabitants of another state or country.

So how shall the estate be administered?

o

So what is ancillary administration? Or when is it proper?

o

Sec. 4. By a principal administration tua man sa abroad, dnhi ancillary manta.

The courts shall grant letters of testamentary or administration and such letters
of testamentary or administration shall extend to all the estate of the testator in
the Phils. Then debts and expenses shall be paid and the residue shall be
disposed of according to the will.

It is proper whenever the person dies leaving in the country other than that of his
domicile, property to be administered in the nature of assets of the decedent,
liable for his individual debts or to be distributed among his heirs.

What is the distinction between principal administartion and ancillary administration?

o

If the person dies in a state owning property in the country of his domicile as well
as in a foreign country, administration shall be had in both countries. That which
is granted in the jurisdiction of the decedent or decedents last domicile is
termed principal administration. While other administration is termed ancillary
administration.

RULE 78
LETTERS TESTAMENTARY AND OF ADMINISTRATION,
WHEN AND TO WHOM ISSUED

Kung dunai will, letters testamentary. If there is no will or if there is an executor but is

incompetent or if there is an executor but refuses to accept the trust or if there is an

executor, he fails to post bond, so instead of letters testamentary, it will be letters of
administration.
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.
-

Who are competent to serve as executors or administrators?

o

The following are disqualified:

Minor

Non-resident

Unfit to execute the duties of the trust

Sec. 2. Executor of executor not to administer estate. - The executor of an executor

shall not, as such, administer the estate of the first testator.
-

Executor of executor cannot administer the estate

Sec. 3. Married women may serve. - A married woman may serve as executrix or
administratrix, and the marriage of a single woman shall not affect her authority so
to serve under a previous appointment.
-

Married woman may serve

What is the meaning of unsuitableness for appointment as administrator?

o

Unsuitableness may constitute or consists in adverse interest of some kind with

hostility to those immediately interested in the estate to such an extent as to
render the appointment inadvisable.

Sec. 4. Letters testamentary issued when will allowed. - When a will has been
proved and allowed, the court shall issue letters testamentary thereon to the
person named as executor therein, if he is competent, accepts the trust, and gives
bond as required by these rules.
-

When the will is proved and allowed, under Sec. 4, then the court shall issue letters
testamentary. That is if the executor is competent, accepts the trust and posts bond.
The 3 requirements. If usa ka requirement dili ma comply, then the executor may be
replaced by an administrator.

The rule in the Phils. is it is incumbent upon the court to respect the desire of the
testator. It is the prerogative of the testator to choose the executor of his estate.

Sec. 5. Where some coexecutors disqualified others may act. - When all of the
executors named in a will can not act because of incompetency, refusal to accept
the trust, or failure to give bond, on the part of one or more of them, letters
testamentary may issue to such of them as are competent, accept and give bond,
and they may perform the duties and discharge the trust required by the will.
-

Suppose there are several executors, some of them are disqualified, under Sec. 5,
those qualified may serve.

Sec. 6. When and to whom letters of administration granted. - If no executor is

named in the will, or the executor or executors are incompetent, refuse the trust,
or fail to give bond, or a person dies intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in
the discretion of the court, or to such person as such surviving husband or wife, or
next of kin, requests to have appointed, if competent and willing to
serve;chanrobles virtua law library
(b) If such surviving husband or wife, as the case may be, or next of kin, or the
person selected by them, be incompetent or unwilling, or if the husband or widow,
or next of kin, neglects for thirty (30) days after the death of the person to apply
for administration or to request that administration be granted to some other
person, it may be granted to one or more of the principal creditors, if competent
and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to
such other person as the court may select.
-

Sec. 6, when and to whom letters of administration granted?

o

So dili letters testamentary, kung di letters of administration. Meaning, instead of

executor, administrator. In what instances?

1. Executor or executors are incompetent

2. Executor refused the trust

3. Executor failed to give bond

4. If the person dies intestate

so letters of administration shall issue. To whom?

o

There is an order of preference. Take not that this order of

preference may be disregarded by the court if anyone or all
of them are incompetent or unsuitable:

1. Surviving husband or wife

2. Person chosen by such husband or wife

3. In their absence, one or all of the principal creditors

4. Other person as the court may select

The judicial administrator is the legal representative, not only of the estate but also of
the heirs, devisees, legatees and all persons interested in the estate.

In the appointment of administrator, the principal consideration is the interest in said

estate of one to be appointed administrator.

GR: Order of preference in the appointment of administrator.

o

E: When there are attendant facts and circumstances, the court may exercise its
discretion and may disregard the order of preference.

If the court gravely abuses its discretion in the appointment of administrator, then the
remedy of an interested party is to file a petition for certiorari under Rule 65 of the
Rules of Court.

Why is it that this order of preference may be disregarded?

o

Its because all of them have the same degree of interest in the estate.

GR: Probate court cannot arbitrarily disregard the preferential right of the surviving
spouse. The court may appoint another if the surviving spouse is unsuitable.

A person who has liabilities to the estate or to the heirs of the deceased cannot be
appointed administrator conflict of interest.

The appointment of an administrator requires that there be notice and hearing to all
known heirs and interested parties. It is essential to the validity of the appointment of
administrator.

The court is not precluded from appointing the surviving spouse and the next of kin as
co-administrators.

RULE 79
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY.
PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION
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 letters of
administration with the will annexed.

Opposition, who may oppose?

o

Any person interested in a will. They should file a written opposition.

The next step is for the court to hear the opposition. There must be prior notice.

The petitioner may at the same time pray that letters of administration be granted to
him.

An assigning heir cannot interfere or participate in settlement proceedings. Meaning, if

an heir assigns his property to a third person, hes no longer a real-part-in-interest.

Interested person is one who will be benefited by the estate such as an heir or one who
has a claim against the estate such as creditor and whose interest is material and
direct, not contingent or incidental interest. It must be present interest or interest in
esse.

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.
-

Contents of petition for letters of administration:

o

1. Jurisdictional facts

2. Facts about the heirs

3. Probable value and character of the property of the estate

4. Name of person for whom letters of administration are prayed

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 Sections 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 the incompetency
of the person for whom letters are prayed therein, or on the ground of the
contestant's own right to the administration, and may pray that letters issue to
himself, or to any competent person or persons named in the opposition.
Sec. 5. Hearing and order for letters to issue. - At the hearing of the petition, it
must first be shown that notice has been given as hereinabove required, and
thereafter the court shall hear the proofs of the parties in support of their
respective allegations, and if satisfied that the decedent left no will, or that there
is no competent and willing executor, it shall order the issuance of letters of
administration to the party best entitled thereto.
Sec. 6. When letters of administration granted to any applicant. - Letters of
administration may be granted to any qualified applicant, though it appears that
there are other competent persons having better right to the administration, if
such persons fail to appear when notified and claim the issuance of letters to
themselves.
-

During the first hearing, counsel for petitioner must establish compliance with the
jurisdictional facts. And what are these jurisdictional facts?
o

First, prove the death of the testator. (death certificate)

Second, residence at the time of death. If non-resident, then the fact of being a
resident of a foreign country but he has estate in the country.

Third, for the court to set the time for hearing. Notices shall be sent to known
heirs and creditors of the decedent or any interested party.

What is the effect of failure to give notice?

Proceedings for the settlement of the estate is void. It may be

annulled.

There may be opposition to petition for administration. Who may oppose? Any
interested person. They should file a written opposition and should state the grounds,
like incompetency of the person for whom letters are prayed, on the ground of
contestants own right to administration, or to any competent person named in the
opposition.

Hearing. The opposition may be granted or denied.

So present evidence. If the court is satisfied that the decedent left no will or that there
is no competent and willing executor, it shall order issuance of letters of administration.

Even if there is a qualified applicant but such qualified applicant failed to appear when
notified and failed to claim the issuance of letters to themselves, then the court may
grant letters of administration to any qualified person.

RULE 80
SPECIAL ADMINISTRATOR
Sec. 1. Appointment of special administrator.- When there is delay in granting
letters testamentary or of administration by any cause including an appeal from
the allowance or disallowance of a will, the court may appoint a special
administrator to take possession and charge of the estate of the deceased until the
questions causing the delay are decided and executors or administrators
appointed.
-

When shall a special administrator be granted?

o

When there is delay in granting letters of administration or letters testamentary

by any cause including a pending appeal, the court may appoint a special
administrator.

If the regular administrator has a claim against the estate, the court may likewise
appoint a special administrator until the question causing the delay are decided
and executors or administrators appoint.

What is the task of the special administrator?

o

To take possession and charge of the estate.

Now do not be confused, the rules governing appointment of a regular administrator do

not apply to appointment of special administrator such as requirement of fitness or
unfitness. What is the reason why said rules do not apply to the appointment of special
administrator?
o

Its because the appointment of a special administrator is temporary.

So also the preferential right of persons under Sec. 6 applies only to the
appointment of a regular administrator, therefore, the surviving spouse may not
claim preferential rights.

Court employees should not be appointed special administrators. There might be

conflict of interest.

Sec. 2. Powers and duties of special administrator. - Such special administrator

shall take possession and charge of goods, chattels, rights, credits, and estate of
the deceased and preserve the same for the executor or administrator afterwards
appointed, and for that purpose may commence and maintain suits as
administrator. He may sell only such perishable and other property as the court
orders sold. A special administrator shall not be liable to pay any debts of the
deceased unless so ordered by the court.
-

What are the powers and duties of special administrators?

o

Take possession and charge of goods, chattels, etc

Preserve them for the executor or administrator who may be appointed and
qualified in the future

And for that purpose, special administrator may commence and maintain suits as
administrator.

Can the special administrator sell perishable goods?

o

Yes, only if there is an order of the court.

Prohibitions:

Special administrator shall not be liable to pay any debts of the deceased,
exception:

If the court so orders

A special administrator is also required to post bond for the performance of his task.

Sec. 3. When powers of special administrator cease; Transfer of effects; Pending

suits. - When letters testamentary or of administration are granted on the estate of
the deceased, the powers of the special administrator shall cease, and he shall
forthwith deliver to the executor or administrator the goods, chattels, money, and
estate of the deceased in his hands. The executor or administrator may prosecute
to final judgment suits commenced by such special administrator.
-

When shall the power of a special administrator cease?

o

If there is already letters testamentary or administration granted to an

administrator, then the powers of the special administrator shall cease.

And what is his duty?

He shall deliver to the executor or the administrator appointed the goods,

chattels, etc.

The function of a special administrator is only to collect and preserve the property of
the estate and to return a complete inventory. He cannot pay the debts of the decedent
unless expressly ordered by the court to do so.

Rule 81. Bonds of executors and administrators. The bonds should be posted before the
issuance of letters testamentary or administration, the court shall fix the bond.
What are the conditions of the bond?
- To make and return to the court a true and complete inventory of the goods and other
property of the deceased which shall have come to his knowledge or even to the
possession of any person for him.
- To administer according to the rules of court
- To render a true and correct account of his administration within 1 year and at any time
when required by the court.
- To perform all orders the court shall direct him to perform.
Now, the purpose of the administration is liquidation of the estate and distribution of the
residue if any. Residue comes after payments of debts, charges and taxes.
If the deceased directs in his will that the executor serve without bond or only his personal
bond, then he may be allowed by court to give bond in such sum and in such surety as the
court approves. What is the condition? To pay the debts of the testator. Court may require
further bonds if there is change in circumstances of the executor or administrator or for other
sufficient cause. Two or more persons appointed as executors or as administrators may post
joint bonds or separate bonds.
Under Section 4, the special administrator is also required to post a bond. What is the
purpose? That he will make and return a true inventory account for the goods, chattels etc.
That he will truly account for such as received by him, when required by the court.
RULE 82. Revocation, Death, Resignation, Removal
What happens if a will is discovered but letters of administration is granted? Consequence,
letters of administration shall be revoked and all powers of administrator shall cease. He shall
fortwith surrender the letters of the court and render his account.

Section 2. Removal, Resignation.

What are the grounds of removal of administrator or executor?
Neglect to render account and settle the estate according to law, to perform an order or
judgment of the court, to perform an order or duty as expressly provided in the rules of
court
He absconds
Becomes insane
Or otherwise incapable or unsuitable to discharge the trust
The court may remove him. The court may also allow the executor or administrator to resign
The determination of a persons suitability in office of judicial administrator rests in the sound
discretion of the court. If the court gravely abuses its discretion amounting to lack or excess
of jurisdiction then a petition for certiorari under Rule 65 lies. Now, a judicial administrator
who holds an interest adverse to the estate or by his conduct shows his unfitness to discharge
the trust, then he should be removed from the administration of the estate.
Section 3. Acts before revocation, resignation, and removal are valid
Section 4. Assuming that there is a new executor or administrator, what are his powers?
Powers to collect and settle the estate not to administer that the former administrator have.
To prosecute and defend action. Then have the execution on judgments recovered in the
name of such former executor or administrator.
Rule 83. Inventory appraisal.
What shall be inventoried and appraised? Or in what period shall inventory and appraisal be
returned? Within 3 months after his appointment, every executor or administrator shall return
to the court of true inventory and appraisal of all the real and personal estate of the deceased
which has come into his possession or knowledge, because if it is not yet in his possession but
somebody informs him that a third person is holding the property of the deceased, he is
tasked to recover.
There are certain articles not to be inventoried. Obvious noh! Wearing apparel, marriage bed
and bedding, provisions and other articles as well necessarily be consumed in the subsistence
of the family of the deceased.
Section 3. There shall be allowance not only to widow and family. If there is conflict between
substantive law and procedural law, you follow substantive law from the common mass of
property; support shall be given to the surviving spouse and children during the liquidation of
the inventoried property. The law does not say minor children, so even those of age may be
supported from the common mass of property.
Rule 84. General powers and duties of executors and administrators. You just read the
sections those are the powers and duties of executors and administrators!
- To have access to and may examine, take copies and make invoices of partnership
books and property if the deceased was a partner during his lifetime relating to the
business. Surviving partners shall exhibit to him books, papers or properties in their
hands or control. Partner may be punished for contempt if he fails to do so.
- Under Sec. 2 he is tasked to keep buildings in repair
- Sec 3 to retain the whole estate to pay debts and to administer estate not willed. It
says, he shall have the right to the possession and management of the real and
personal property of the deceased, but please take note of this phrase, so long as it is
necessary for the payment of the debts and expenses of administration. The right
therefore of the executor or administrator to the possession and management of the
properties is not absolute, it can only be exercised so long as it necessary for the
payment of debt and expenses of administration.

Rule 85. Accountability, Compensation

Executor or administrator chargeable in his account with the whole of the estate of the
deceased which has come to his possession at the value of the appraisement contained in the
inventory. Know, the administrator shall not profit with the increase or loss by the decrease or
destruction of the property without his fault of any part of the estate.
Sec 3. No executor or administrator shall be accountable for debts which has remained
uncollected without his fault.
He is accountable for income from realty used by him. So, if he uses or occupies part of the
real estate then he shall pay for it. If the parties cannot agree on the sum to be allowed then
the court may ascertain the amount whose determination shall be final.
Sec 5. He is accountable if he neglects or delays to raise or pay money and damaged is
sustained, the damage will be charged on his account and he shall be liable thereon on his
bonds.
Sec 6. When allowed for money paid as cost or cost paid against him shall be allowed in his
administration account.
Sec 7. What expenses or fees are allowed for executor or administrator? He shall be allowed
NECESSARY expenses in the care, management, settlement of the estate and for his services.
If we follow the rules no one will allow because the compensation is only P4 per day. But in
special cases, where the estate is large and has required a high degree of capacity and
difficulty on the part of the executor or administrator then a higher sum may be given. When
the executor or administrator is a lawyer, he shall not charge against the estate any
professional fees for legal services rendered by him. Reason? Conflict of interest.
When the deceased by will makes provision for the compensation of the executor then such
provision shall be in full satisfaction for his services. Generally, what are administration
expenses allowed? Necessary expenses in the care, management and settlement of the
estate. He is entitled to possess and manage the property of the deceased as long as it is
necessary for the payment of the debts and expenses of administration. He is accountable for
the whole decedents estate which has come to his possession. Administration expenses
should be those which are necessary for the administration of the estate for protecting it
against destruction or deterioration and possibly for the production of fruits.
Now, where the administrator is the counsel for the heirs, it will be the heirs who will pay him.
Attorneys fees of a lawyer employed by the executor to secure approval of the will, if the
lawyer is successful, may properly be charged against the estate.
What is the procedure to collect attorneys fees? Ask the executor/administrator to pay him, if
the latter refuses or fails to pay him, the lawyer has 2 remedies. He may either file an
independent civil action against the executor/administrator and should judgment been
rendered and there is payment, the executor or administrator may include the amount paid in
his account with the probate court. The other remedy is to file a petition with the probate
court praying that the court after due notice, allow his claim and direct the
executor/administrator to pay his claim as expenses of administration.
Suppose the executor/administrator dies before the attorneys fees could be paid, what is the
remedy? He may file a claim against the estate of the deceased, executor/administrator or a
petition for the allowance of his claim with the probate court. The allowance of counsel fees in
estate proceedings rests largely in the sound discretion of the court.
The circumstances that the probate court has lost jurisdiction to adjudicate the matter of fees
as a result of the final closure of the estate proceeding does not prevent the lawyer from
being paid. So the lawyer may pursue his claim through an independent civil action against

the executor/administrator in his personal capacity and against the distributees of the assets
of the estate.
Sec. 8. When shall executor/administrator render his account? Within 1 year from receipt of
letters testamentary or administration. Exception: when the court otherwise directs because
of extensions. Extension is granted when he shall render further accounts as the court may
require until the estate is fully settled.
The executor/administrator may be examined on oath with respect to his account. That is, if
there is objection to the account to be presented in court. If there is no question as to the
allowance of the account and its correctness is satisfactorily established by competent court,
then no examination on oath shall be conducted.
Under section 10, the account of the executor/administrator shall be settled on notice. Who
shall be notified? Persons interested in the estate. The time and place of the examination and
allowance shall be fixed by the court. The notice may be given personally to persons
interested or through advertisement on a newspaper.
Section 11. Surety on bond may be party to accounting in a due process to the bonding
company.
RULE 86. Claims against Estate.
Section 1. The court shall issue notice to creditors requiring persons having money claims
against the decedent to file them in the office of the clerk of court.
Section 2. Time within which claim shall be filed. In the notice, the court shall state the time to
file the claim against the estate. It shall not be more than 12 nor less than 6 months, after
the date of the first publication of the notice but at any time before an order of distribution is
entered. On application of the creditor who has failed to file within the time previously limited,
the court may for cause shown and on such terms as are equitable, allow such claim to be
filed within a time not exceeding within 1 month.
Section 3. There shall be publication of notice to creditors, three of which successively in a
newspaper of general circulation. In addition to publication, posting of notices in four public
places in the province, two public places in the municipalities,then within 10 days after notice
has been published and posted, copy of printed notice shall filed
Section 5. Claims which must be filed under the notice. Please take note of section 5, this is
important! Now, which claims must be filed under the notice and what is the effect if they are
not filed?
1. All claims for money against the decedent, either arising from contract, express or
implied, due, not due, or contingent.
2. All claims for funeral expenses and expenses for the last sickness of the decedent
3. Judgment for money against the decedent
They must all be filed within the period limited in the notice. What is the effect if they are not
filed within the period in the notice? They are barred forever. Exception: they may be set
forth as counterclaim in any action that the executor may bring against the claimant, so maguna2x ganing kiha executor or administrator; the claimant may file a counterclaim or set-off if
he has a claim against the estate. The debtor may set forth by answer the claim he has
against the decedent, instead of presenting it independently to the court, and mutual claims
may be set off against each other. Claims not yet due or contingent may be approved at their
present value. What is claim? Claim means right to payment; it refers to right or demands of
a pecuniary nature which could have been enforced against the deceased during his lifetime
and could have been reduced to simple money judgments. Claims referred to in section 5, are
those arising prior to the death of the decedent, except for funeral expenses, they do not
include claims arising after the death of the decedent.
Contingent claim- it is one, which by its nature, is necessarily dependent upon uncertain
event for its existence and validity. One of which, may or may not develop into a sufficient

enforceable event, to be contingent, the happening must be wholly uncertain until the event
giving rise to obligation occurs. Deficiency judgment is a contingent claim.
Now please take note of your civil procedure, section 20, rule 3. Action for recovery of money
arising from contract, express or implied, then defendant dies while the action is in court.
Shall the action be dismissed? No the action shall be allowed to continue until entry of final
judgment. If there is favorable judgment obtained by the plaintiff, then it shall be enforced in
the manner specifically provided in this rules for prosecuting claim against the estate of a
deceased person. What does it mean? If there is a judgment, you present it to the testate or
intestate court; you need not prove the claim because the basis is the judgment. Other
claimants are required to prove their claims, so there is therefore an advantage if you have a
court decision. Purely personal actions are extinguished by the death of a party like for
support.
Section 20. Refers to an action for recovery of money, which survives the death of the
defendant. Actions which survives, involves property or property rights. Section 20 did not
distinguish which court the action is pending, then said court may refer to the MTC, RTC OR
CA. Then how about actions other than for recovery of money? Meaning real actions, one for
the recovery of personal property or to enforce a lien thereon. How about action to recover
damages for an injury to persons or property, real or personal? Do the actions also survive?
Answer is yes, they also survive the death of the decedent and may therefore be prosecuted
like an action for the recovery of money.
Now, what is the task of the lawyer if his client dies? Within 30 days inform the court of the
death of his client. Then, give the names and addresses of the heirs. The court gives an order
of substitution. Then, the last which is the more important, the court shall give an order of
the appearance of the substitutes/heirs. If the defendant dies before any action for the sum
of money is filed against him, then the plaintiff may prosecute his claim before the probate
court. With respect to injury to persons or torts or quasi-delict, he may institute necessary
action against the executor or administrator of the deceased
Section 6. Solidary obligations of the decedent. If during his lifetime, the decedent bound
himself to be solidarily liable with another, then the claim shall be filed with the decedent as if
he were the only debtor. Of course, without prejudice to the right of the estate to recover from
the other debtors. In a joint obligation, the claims shall be confined to the portion belonging
to the deceased.
Section 7. Mortgage due for the estate. What are options of the creditors who has a claim
against the estate secured by mortgage?
1. He may abandon the security and prosecute his claim and share in the general
distribution in the assets of the estate.
2. He may foreclose his mortgage and realize upon his security, making the
executor/administrator party defendant and if there is any deficiency, he may claim
deficiency judgment in the manner provided in section 6.
3. He may rely upon his mortgage and other security alone, and foreclose his mortgage
any time within the period of the statute of limitations in that case he shall not be
admitted as creditor but nothing contained herein shall prohibit the executor or
administrator from redeeming the property mortgaged or pledged for the interest of the
estate
These alternatives include extrajudicial foreclosure sale.
Section 8. Claims of executor against an estate. So what shall the court do, since the
executor is the claimant? The court shall appoint a special administrator because there is
conflict of interest.
How to file the claim? Deliver the claim with the necessary vouchers to the clerk of court,
serve copy to the executor/administrator if anchored on bond, bill, note, then the original
need not be filed but on the demand of the executor/administrator or by court order, the
original shall be exhibited unless of course if the original is lost or destroyed. In which case,

an affidavit/s shall be filed to court. When the claim is due, it must be supported by affidavits
stating the amount justly due and that no payments have been made thereon and that there
are no offsets made to the claim. If the claim is not due or contingent, it shall also be
supported with affidavits stating the particulars. When the affidavit is made by other than the
claimant, then the reason shall be stated why it was not made by the claimant.
Section 10. Answer of executor or administrator. Within what time? Within 15 days after
service of the copy of the claim. Answer shall either admit or deny the claim specifically
setting forth the substance which shall support the admission or denial of the claim. So,
denied for the truth of the matter is executor or administrator shall allege in offset any
claim which the decedent before death has for the claimant. Now, how shall admitted claims
be disposed off? First submit the claims to the clerk of court who may approve the same
without hearing, but the court in its discretion before approving the claim that the heirs,
legatees, devisees be notified and heared. If upon hearing, any of the latter opposes the
claim, the court may give him 15 days within which to file an answer to the claim.
Section 12. Contested claims shall be tried.
Section 13. Judgment of the court approving or disapproving the claim shall be appealable as
in ordinary cases.
Section 14. Cause then examination
PIECE OF PAPER! Nag-exam!
kimoy
Rule 87. Action by and Against. What are the actions which may and may not be
brought against the executor and administrator?
-

No action upon a claim for the recovery of money or interest thereon shall be
commenced against the executor or administrator. So, ipresent na as a claim sa estate.
o

Actions to recover real or personal property or interest therein from the estate to
enforce a lien thereon. Actions to recover damages for an injury to persons or
property may be commenced against the executor or administrator.

It is the task of the executor or administrator to bring and defend actions which survive.
Meaning for the recovery or protection of the property or rights of the deceased.

Action to recover real or personal property, may be prosecuted by the interested

person against the executor or administrator, independently of the testate or intestate
proceeding.
o

The only actions that may be instituted against the executor or administrator are those
to recover real or personal property from the estate or to enforce a lien thereon, or to
recover damages for an injury to person or property, they include damages for breach
of contract.
o

A probate court has no jurisdiction over money claim secured by a lien, like
mortgage.

Only when there is no special proceeding for the settlement of the estate of the
deceased may the legal heirs bring an action out of the right belonging to their
ancestor.

Prior settlement of the estate is not essential before the heirs can commence an action
originally pertaining to the decease where there is no showing that an administrator
has been appointed to settle the estate of the deceased.

But after appointment an executor or administrator, an heir has no right to file an

action to recover title or possession of land belonging to the estate of the
decedent.

Exception: if the executor or administrator, refuses to file such action and also when there is
an order of the court, assigning the land to an heir.
Section 3. Heir may not sue until a share is assigned, because he is not yet a party in interest.

No action to recover the tile or possession of land or for damages shall be maintained
against him by an heir or devisee until there is an order of the court assigning such
lands to such heirs or devisee. Executor or administrator may compromise with debtor.

Section 5. If there is any mortgage due the estate, then said mortgage may be foreclosed by
the executor/administrator.
What is the procedure when property of the estate is concealed, embezzled, or fraudulently
conveyed?
4. The administrator/executor or person interested will complain to the court having
jurisdiction, 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 knowledge of any deemed conveyance etc., containing evidence opt
or tends to disclose the right, title of interest or claim of the deceased to real and
personal estate or the last will and testament of the deceased.
5. So, the court may cite such suspected person to appear before it. So he shall be
interrogated under oath on the matter of such complaint.
Suppose the person cited, refuses to appear or refuses to be interrogated? What is the
remedy?
4. The court may punish him for contempt and may commit him to prison until
he submits to the order of the court.
Section 7. If there is a person entrusted with the estate, then he may be compelled to render
an account. What is the procedure?
The court may cite such person entrusted executor/administrator with any part of the estate
to appear before the court.
5. The court may require such person to render a full account of the money,
goods and chattels etc. or other papers belonging to the estate, in trust for
his possession in behalf of the executor/administrator.
1. And what if he refuses to appear? He may be punished for contempt.
What is the procedure if there is embezzlement before letters were issued?
6. Such person shall be liable to the executor or administrator of the estate for
double the value of the property embezzled or alienated.
Now , Section 9 is fraudulent conveyance of the property by the deceased himself. So, under
this section it is the task of the executor/administrator to bring action to recover.
Under what conditions?
7. When there is deficiency of the assets and it is for the payments of debts and
expenses of administration.
The deceased during his lifetime, conveyed a real or personal property or a right or interest
therein and there was intent to defraud his creditors committed by the deceased, if not, to
avoid any right, debt or duty or if he has so conveyed such property that by law the
conveyance would be void as against his creditors and the subject of the attempted

conveyance would be liable to attachment.

What shall the executor/administrator do?
8. Commence and prosecute for an action for the recovery for such property,
right, interest, debt or credit, for the benefit of the creditors.
Remember the executor/administrator is the representative of the creditors also not only of
the heirs.
9. But he shall not be bound to commence action unless upon application of the
creditors nor unless creditors making the application pay such part of the cost
and expenses and give security.
Section 10. When may the creditor bring the action? During his lifetime, ang deceased
fraudulently conveyed his property, the executor/administrator is supposed to protect the
interest of heirs and creditors did not bring action to recover. So, who may bring action?

The rule says, any creditor of the estate may commence and prosecute to final
judgment in the name of the prosecutor or administrator, an action for the recovery of
the subject of the conveyance or attempted conveyance for the benefit of the creditors.
o

Actions shall not however commence, until creditors shall have filed in court a
bond executed to the executor/administrator.

What is the purpose? To indemnify the executor/administrator against costs and expenses
incurred by such action.
Where the conveyance or attempted conveyance has been made by the deceased in his
lifetime, in favor of the executor or administrator:
o

the action shall be made in behalf of the name of all the creditors.

RULE 88. Payment of the debts of the estate.

Remember, before distribution of the residue, there must be payment of debts.
Under Section 1, debts shall be paid in full, if the estate is sufficient or where it appears that
there are sufficient assets to pay debts.
The general rule is that the probate court cannot issue a writ of execution because its orders
usually refer to the adjudication of claims against the estate which the executor/administrator
may satisfy without the necessity of resorting to writ of execution.
The probate court does not render judgments enforceable by execution.

Exceptions to that rule:

to satisfy the distributive shares of devisees, legatees, heirs in possession of the

decedents assets

to enforce payment of expenses of partition. XYZ, gipartition nila, ni-hire sila ug

geodetic engineer, ang2x ug tablahon, so they must contribute. If somebody fails to
contribute then the order is satisfied or enforce via execution.

To satisfy the cost when the person is cited for an examination in probate
proceeding.

Under Sec 2, part of the estate to pay the debt when there is a specific provision in the will by
the testator.

If the testator designates the estate for appropriation, for the payment of his debts,
expenses of administration, or family expenses, then it shall be paid according to that
provision in the will.

Which shall be charged for debts first?

Personal property (2) then real property.

o

The personal property of the deceased not disposed off by will shall be first
chargeable or its sale would redound to the detriment of the participants of the
estate, the whole real estate not disposed of by will, or so much thereof if
necessary, may be sold, mortgage, or encumbered.

Section 4. Portion of the estate may be retained to meet contingent claims. So court may
order the executor/administrator to retain in his hands sufficient estate to pay contingent
claims.
If contingent claims become absolute, presented in court, within 2 years, from the time
limited for other creditors to present their claims, then it may be allowed by court if not
disputed.

If disputed, it may be proved and allowed/disallowed by the court as the facts may
warrant. If the contingent claim is allowed, the creditor shall receive payment same as
to other creditors etc.

If the claim is not presented after having become absolute, within said 2 years:

the assets retained in the hands of the executor/administrator not exhausted in the
payment of the claims shall be distributed by order of the court to persons entitled to
the same.

Assets so distributed may still be applied in payment to claims when established.

Section 6. It is the duty of the court to fix contributed shares where devisees, legatees or
heirs have been in possession.
The rule says, where devisees, legatees or heirs have entered into possession of portion of
the estate before the debts or claims have been settled and paid, they shall be liable to
contribute for the payment of such debts/expenses etc.
-

By order or by hearing court shall settle the amount of several liabilities and order how
much and in what manner, each person shall contribute. To enforce contribution, a writ
of execution may be issued.

Now, order of payment if estate is insolvent.

-

The assets which can be appropriated for the payment of debt is not sufficient, then
follow articles: 1059, 2239, 2251, these are concurrence and preference of credits.
Now, dividends should be paid in proportion to claims.
o

So if there are no assets sufficient to pay credits of any one class of creditor,
after paying credits entitled to preference over it, each creditor within such class
shall be paid a dividend in proportion to its claim.

How shall the estate of the insolvent non-resident be disposed off?

-

It shall be disposed off that its creditors here and out of the Philippines will receive a
share in proportion to the respective credit.

The court here, shall receive a certified list of claims, when perfected in the foreign country
and add the same to the list of claims proved against the deceased person in the Philippines.
So that just distribution of the whole estate may be made equally among the creditors
according to the respective claims.

Section 11. Order for payment of debts. Before the expiration of the time limited for the
payment of the debts, the court shall order the payment thereof.
If there is an appeal?
-

The court may suspend the order for the payment of the debts or may order
distribution among creditors whose claims are definitely allowed.

Section 13. If the whole of the debts are not so paid on the first distribution, and if the whole
assets are not distributed, or other assets, afterwards comes to the hands of the
executor/administrator:
-

then the court may from time to time make orders for the distribution of the assets.

Creditors shall be paid in accordance with the terms of order.

-

When an order is made for the distribution of assets then the executor/administrator as
soon as the time of payment arrives, pay the creditors the amount of their claims or
the dividends thereon, in accordance with the terms of such order.

Section 15. Time for paying debts and legacies. Extension.

Court shall allow executor/administrator a time for disposing off the estate and paying the
debts and legacies which shall not exceed 1 year,
-

but the court may grant extension as the circumstances of the estate requires, not
exceeding 6 months for a single extension.
o

But extension shall not exceed 2 years.

Section 16. Successor of dead executor or administrator may have the time extended on
notice within certain period.
-

So the successor may be granted extension not exceeding 6 months beyond the time
which the court may have allowed.

Rule 89: Sales, Mortgages and other Encumbrances

Section 1.
The court may order the whole or part of the personal properties to be sold.
Under what circumstances? If it appears necessary for the purpose of the paying
debts, expenses of adminitration or legacies; or for the preservation of the property.
Section 2.
When may the court authorize the sale, mortgage or encumbrance of realty?
1. When the personal estate is not sufficient to pay the debts , expenses of
administration and legacies.
2. Where the sale of the personalty may injure the business or other interests of
those interested and where a testator has not otherwise made a sufficient
provision for the payment of debts, expenses etc.
So the court may issue an order authorizing the executor or administrator to sell,
mortgage or otherwise encumber so much as may necessary of the real estate in
lieu of personal estate again for the purpose of the payment of debts, expenses of
administration and legacies.

 The court shall issue the order if it appears beneficial to the persons interested or if
your part cannot be sold, mortgage or otherwise encumber without injury to those
interested in the remainder the authority maybe for the sale of the whole estate.
Notice is indispensable. Without the requisite notices the authority to sell , the sale
itself and the order of approving it would be null and void in so far as those not
given proper notices.
Section 3.
Any person interested in the estate may prevent the sale, encumbrance etc.
How? By posting a bond fixed by the court.
What is the purpose of the bond? To pay the debts, expenses of the administration
and legacies.
Bond should be for the security of the creditors.
Section 4.
When may the court authorize sale of estate as beneficial to interested persons?
A: When it appears that the sale will be beneficial to the heirs, devisees, legatees
and other interested persons, the court may, upon application, may authorize the
executor or administrator to sell the whole or a part of the estate..
Section 5.

When may the court authorize the sale, mortgage or other encumbrance of estate
to pay debts and legacies in other countries?
A: If it appears from records and proceedings of the 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 in the
Philippines may authorize the executor or administrator to sell personal estate or
sell, mortgage or encumber real estate for the payment of debts or legacies in other
country.
The court may authorize the sale, mortgage or other encumbrance of realty
acquired on execution or foreclosure.

Section 7.
Regulation for granting authority to sell, mortgage or encumber.
What are the regulations?
1. First, there must be a written petition alleging the debts due from the
deceased, expenses of the administration and legacies.
2. Then court shall fix the time and place for hearing the petition with notices.
3. Court may require additional bond.
4. Court may authorize the executor or administrator to sell, mortgage or
otherwise encumber in proper cases such that of the estate as may be
necessary.
5. Then modes of giving notice of the time and place of sales should be
governed by rule on execution (Rule 39).
6. Then the last step is recording in the registry of deeds of the province in
which the real estate is sold mortgaged or encumbered.
Section 8.
The court may authorize the conveyance of real property which the deceased
contracted to convey during his lifetime.

 The rule says when the deceased was in his lifetime under a contract to deed real
property or an interest therein, the court upon application may authorize the
executor or administrator to convey such property according to such contract or
with such modification agreed upon.
If the contract is to convey real property to the executor or administrator then the
clerk of court shall execute the deed.
The deed executed by the executor or administrator shall be effectual to convey the
property as if executed by the deceased during his lifetime.
No conveyance shall be authorized until notice of the application to all parties
interested and futher notice by publication. Nor if the assets in the hands of the
executor or administrator will thereby be reduced so as to prevent the creditor from
receiving his full debt or diminish his dividend. V
i library
Sec. 9.
When court may authorize conveyance of lands which the deceased held in trust during
his lifetime?
A: If the deceased in his lifetime held in trust real property for another person, the
court may, after notice 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.

RULE 90: DISTRIBUTION AND PARTITION OF THE ESTATE

Sec. 1.
When shall the court issue order for distribution of the residue?
A: After debts, funeral charges, and expenses of administration, allowance to the
widow, and inheritance taxes have been paid.
Support on the application and after hearing upon notice shall assign the residue of the
estate to the person/s entitled to the same, naming them and the portions, or parts, to
which each is entitled.
If there is a controversy relative to the question of who are the lawful heirs or there is a
dispute as to the distributive shares, the controversy shall be heard and decided as in
ordinary cases.
No distribution unless the distributees, or any of them, give a bond conditioned for the
payment of said obligations within such time as the court directs.
Declaration of heirship must be made in an administration proceeding and not in an
independent civil action.
While the estate proceeding is pending or either the estate settlement has not been
finally closed and terminated, an independent action for declaration of heirship is
improper.
His remedy being with the probate court.
If its motion is denied, remedy is to appeal and not to file a separate independent
action for the purpose.
Case: De Jesus vs. Estate of decedent Dizon
The filiation of illegitimate children, like legitimate children, is established by:
(1) record of birth appearing in a civil register or final judgment

(2) an admission of legitimate filiation in a public document or a private handwritten

and signed by the parent concerned.
In the absence thereof, affiliation shall be proven by the following:
(1) Open and continuous possession of the status of a legitimate child;
(2) Any other means allowed by the Rules of Court and special laws.
The children entitiled to the inheritance are the natural children, or either legitimate or
illegitimate.
Sec. 2.
Questions as to advancement may be made, or heard by the court and the final order
of the court thereon shall be binding on the person raising the questions and on the
heir.
Sec. 3.
If there are sufficient effects retained by the executor or administrator, this may
lawfully be applied for the expenses of partition, otherwise the parties shall pay the
expenses.
Sec. 4.
Recording the order of partition in the registry of deeds of the province where the
property is situated.
An heir during the pendency proceedings has the right to sell its undivided share
without the approval of the probate court. Approval is required only if the specific
property of the estate is sold.
In settlement of estate proceedings the distribution of estate properties can only be
made:
(1) After all the debts, funeral expenses, expenses of administration and allowance to
the widow and estate tax have been paid.
(2) before payment of the said obligations, only if the distributes or any of them gives a
bond.
When may the court lose jurisdiction of an estate under administration?
A: After the payment of all the debts and remaining estate delivered to the heirs
entitled to receive the same. As long as the order has not been complied with, the
probate court could not be deemed closed or terminated.
If an heir has not received share, then his proper remedy is to file a motion for
reopening.
Where the properties involved registered lands, and the shares have been distributed
to that who in turn absolve them to 3rd persons then the heir excluded may file a
separate action to set aside partition and to recover his share or he may file action for
reinventication.
A reopening is no longer proper if there is 3 rd party involved.
RULE 91: ESCHEATS
Sec. 1.
When and by whom petition filed. - Here a person dies intestate, seized of real or
personal property leaving no heir or person by law entitled to the same. So what should
the government do?

 The Solicitor General or his representative may file a petition in the RTC 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.
It is reversion of property to the state in consequence of a want of any individual
competent to inherit.
It indicates the preferential right of the estate left vacant without there being anyone in
existence to make a claim thereto.
The reversion of the land to the state as a consequence of either the violation of the
provisions of the Public Land Act or of the Constitution prohibiting the sale of lands to
aliens.
Escheat or reversion is available however you should not forget that in reversion the
real party in interest is the government , the Republic of the Philippines. So no private
individual intervenes.
Like in one case, there was a reversion proceedings initiated by the Solicitor General.
An occupant of the property who did not claim ownership intervenes. SC: You cannot
intervene; the real party-in-interest is the Republic.
Escheat is nothing more or less than the reversion of the property to the state which
takes place when the title fails.
It is an incident or tribute of sovereignty and rests on the principle of ultimate
ownership by the state of all property within its jurisdiction.
Section 2.
After the petition is filed, when shall the court issue an order for hearing?
A: If the petition is sufficient in form and substance, the court shall fix a time and place
for the hearing of the petition and the purpose 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 at least once a week for six (6) successive weeks.
This is the ONLY special proceeding where publication is SIX successive weeks.
Sec. 3.
-

Hearing and judgment.

Upon the satisfactory proof that such order has been published and that the person
died intestate, seized of real or personal property in the Philippines, leaving no heir or
person entitled thereto, then the court shall render judgment that the estate of the
deceased in the Philippines, after the payment of just debts and charges, shall escheat;
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, 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.
Purpose? Such estate shall be for the benefit of public schools, and public charitable
institutions and centers. Permanent trust may be established.

Sec. 4.

When and by whom claim to estate filed?

A: If a devisee, legatee, heir, widow, widower or other person entitled to such estate
appears and files a claim thereto with the court within five (5) years from the date of
such judgment, such person shall have possession of and title to the same, or if sold,
the municipality or city shall be accountable to him for the proceeds, after deducting
reasonable charges for the care of the estate; but a claim not made within said time
shall be forever barred.

Sec. 5.

 Other actions for escheat. - actions for reversion or escheat of properties alienated in
violation of the Constitution or of any statute.
2 remedies to escheat property to State:
(1) Action for reversion as a result of the violation of the provisions of the Public Land Act
(2) Escheat proceedings instituted as a consequence of a violation of the Constitution
prohibiting the transfer of lands to aliens..
Unclaimed bank balances, whose depositors or creditors are known to be dead or have not
been heard of or who have not made further deposits or withdrawals during the preceding
ten years or more: So what should government do? Solicitor General shall commence
action/s in the name of the people in the RTC, joining as parties the bamk and the creditors
and depositors. Venue is in the province or city where the principal or main office of the
bank is located.
Unclaimed bank balances, whose depositors or creditors are known to be dead or have
not been heard of or who have not made further deposits or withdrawals during the
preceding ten years or more: So what should government do? Solicitor General shall
commence action/s in the name of the people in the RTC, joining as parties the bamk
and the creditors and depositors. Venue is in the province or city where the principal or
main office of the bank is located.
GUARDIANSHIP OF MINORS

We should separate two kinds of guardianship:

(1) Guardianship of the person or property of minors
(2) Guardianship of incompetent persons who are not minors
This is exclusive rule on guardianship of minors only.
How shall it be commenced?
Petition for the guardianship of the person or property or both of minors shall be filed.
Father or Mother shall jointly exercise legal guardianship over the person and property
of their unemancipated common child without the necessity of a court appointment.
Guardianship is a trust relation in which the person called the guardian acts for another
called the ward whom the law regards as incapable of managing his own affairs.
Intention/Purpose? To preserve wards property and to give assistance to the ward.
Guardian/s stand in loco parentis.
Four types of guardians:
(1) Legal guardians/ Guardian by operation of law
(2) Judicial guardians/
(3) Guardians ad litem who is appointed to prosecute or defend an action for or against
a minor or incompetent
(4) De facto guardian
DO not confuse guardian ad litem and guardian ad litem under the rule on examination
of a child witness.
Guardian Ad litme is appointed to assist the minor who is accused of a crime or is a
complainant or is a witness.
So the function of the guardian under the rule on examination of a child witness is to
look after the welfare of the child.
De facto guardian one to whom a newly born baby is entrusted by the mother who did
not want to be identified, who had actual physical custody of the infant and who, out of
compassion and motherly instinct, extend the mantle of protection over the hapless
and helpless infant.
De facto guardian exercises patria potestas over the abandoned child.

 Please take note of Sectio 225 of Family Code. Regardless of the value of the
unemancipated common childs property, the father or mother or in his absence or
incapacity, the mother ipso facto becomes the legal guardian of the childs property.
The power or authority of the parents as legal guardians extends only to the power of
possession and management.
Power to sell, mortgage or encumber must be with approval/authority of the court.
Sec. 2.
Who may petition for appointment of guardian?
A: Any relative or other person on behalf of a minor, or the minor himself if fourteen
years of age or over, may petition the Family Court for the appointment of a general
guardian over the person or property, or both, of such minor.
DSWD Secretary and DOH Secretary may also file guardianship of insane minor.
Sec. 3.
Where to file petition? Family Court of the province or city where the minor actually
resides.
If he resides in a foreign country, the petition shall be flied with the Family Court of the
province or city where his property or any part thereof is situated.

Sec. 4.
Grounds of petition. - The grounds for the appointment of a guardian over the person or
property, or both, of a minor are the following:
(a) death, continued absence, or incapacity of his parents;
(b) suspension, deprivation or termination of parental authority;chan robles virtual law
library
(c) remarriage of his surviving parent, if the latter Is found unsuitable to exercise
parental authority; or
(d) when the best interests of the minor so require.

Sec. 5.
Qualifications of guardians. In appointing a guardian, the court shall consider the
guardians:
(a) moral character;chan robles virtual law library
(b) physical, mental and psychological condition;
(c) financial status;
(d) relationship of trust with the minor;chan robles virtual law library
(e) availability to exercise the powers and duties of a guardian for the full period of the
guardianship;
(f) lack of conflict of interest with the minor; and
(g) ability to manage the property of the minor.

Sec. 6.
Who may be appointed guardian of the person or property, or both, of a minor/ward?
Following order of preference:
(a) the surviving grandparent and In case several grandparents survive, the court shall
select any of them taking Into account all relevant considerations;
(b) the oldest brother or sister of the minor over twenty-one years of age, unless unfit
or disqualified;
(c) the actual custodian of the minor over twenty-one years of age, unless unfit or
disqualified; and
(d) any other person, who in the sound discretion of the court, would serve the best
interests of the minor.
Non-residents may not be appointed guardians because there is jurisdictional problem
besides non-resident aliens could not protect the ward.
Sec. 7.
Contents of petition. A petition for the appointment of a general guardian must allege
the following:
(a) The jurisdictional facts;
(b) The name, age and residence of the prospective ward;chan robles virtual law
library
(c) The ground rendering the appointment necessary or convenient;chan robles virtual
law library
(d) The death of the parents of the minor or the termination, deprivation or suspension
of their parental authority;
(e) The remarriage of the minors surviving parent;
(f) The names, ages, and residences of relatives within the 4th civil degree of the
minor, and of persons having him in their care and custody;
(g) The probable value, character and location of the property of the minor; and
(h) The name, age and residence of the person for whom letters of guardianship are
prayed.
The petition shall be verified and accompanied by a certification against forum
shopping.
However, no defect in the petition or verification shall render void the issuance of
letters of guardianship.
During the initial hearing for the petition of guardianship the Judge will ask counsel for
petitioner, are you ready to establish compliance with the jurisdictional requirements.
SO what do you mean by jurisdictional facts? There are facts which will show on the
face of the petition that the court has jurisdiction over the proceedings so Residence
and place where the Property is located.
Residence of minors: If he resides in another country, then the province or city where
his property or any part thereof is situated. Of course the counsel for petitioner shall
prove publication and notices.
Sec. 8.
Time and notice of hearing. The court shall fix a time and place for its hearing, and shall
cause reasonable notice which is jurisdictional.

 Court cannot proceed without notice to the proper persons or interested party.
Sec. 9.
Case study report. The court shall order a social worker to conduct a case study of the
minor and recommend to the court for its guidance before the scheduled hearing.
Social worker shall report and submit his recommendation.
Social worker may intervene if he finds the petition to be denied.
Who may oppose the petition for guardianship? Im sorry. This is adoption already.
Adoption. Any interested person.
How? File a written opposition.
What are the grounds?
1. Majority of the minor
2. Unsuitability of the person for whom letters of guardianship are prayed.
Then, if there is an opposition, then there shall be hearing for issuance of letters of
guardianship.
At the hearing, it must be shown that the requirement of notice has been complied
with. This is jurisdictional.
Prospective ward shall be presented to the Court. Ok. So, Court shall hear evidence of
both parties.
If warranted, the Court shall appoint a suitable guardian of the person or property or
both of the ward.
Hearing may be closed to the public.
Records may be considered confidential, meaning they shall not be released without
Court approval.
Sec. 12.
When and how a guardian of the property for the non-resident minor is appointed?
Here, minor resides out of the Philippines, but he has property in the Philippines. So,
relative or friend of such minor or any interested party may file a petition in the Family
Court.
Again, requirement of notice and publication or any other means as the Court may
deem proper.
If after hearing, the Court is satisfied that the non-resident is a minor and a guardian is
necessary or convenient, then the Court may appoint a guardian over his property.
Who shall be served final and executory judgment of order?
(1) Local Civil Registrar.
(2) Register of Deeds.
A report shall also be submitted to the Court within 15 days from receipt of the Order.
Sec. 14.
Bonds of Guardian. What are the conditions?
(1) To make and return to the Court, a true and complete inventory of all property of the
Ward.
(2) To faithfully execute the duties of his trust. To manage and dispose of his property
according to the Rules of Court.
(3) To render a true and just account of all the property of the ward in his hands.
Where to file the bond? Family Court, in case of breach of any of the conditions of the
bond, the guardian may be prosecuted in the same proceeding, not separate
proceeding because in this jurisdiction, split jurisdiction is not favored.
Sec. 16.
Bond of Parents as Guardians of Property of Minor.

 Bond is required if the Market Value of the property or the annual income exceeds P50T.
Bond, in no case is 10% of the value of property or annual income.
What is the purpose of the bond? To guarantee the performance of the obligations
prescribed for general guardians.
Approval of bond via verified petition filed with the Family Court.
Petition will be docketed as a Summary Special Proceeding.
Now, jurisdiction. Parents have no power to dispose of property of their minor children
worth more than P50T without having filed the required bond and without having the
authorization. There should be a petition to sell, encumber or mortgage.
Sec. 17.
Bond is General Duties of Guardian. Care and custody of the person of ward,
management of his property or management only.
Guardian of property of non-resident minor shall have the management of all his
property within the Phils.
So, these are the duties:
(1) to pay the just debts of the ward.
(2) to settle all accounts of his ward
(3) to manage the property of the ward frugally and without waste.
(4) to consent to a partition to a real or personal prop owned by the ward.
(5) to submit an inventory of the property of his ward within 3mos. Of his appointment.
(6) to report to the Court, any property of the ward not included in the inventory
(7) Last, to render to the Court, an accounting of the property one year from his
appointment.
Power and Duties of the Court:
(1) Request assistance of one or more commissioners.
(2) Authorize reimbursement to the guardian or reasonable expenses incurred in the
execution of the trust.
(3) Require any person suspected of having concealed or dispose of property of the
ward to appear for examination concerning any thereof and issue orders as would
secure the property against embezzlement, concealment, and conveyance.
Sec. 19.
Petition to sell or encumber. When is this allowed?
(1) When the income of the property under guardianship is insufficient to maintain and
educate the ward.
(2) Second, when it is for his benefit that his personal or real property of part thereof is
sold, mortgaged or encumbered and proceeds invested in safe and productive
security.
So, what shall the guardian do? File a verified petition alleging said facts and praying
that an Order issue authorizing the sale or encumbrance of that property.
Sec. 20.
If there is a petition to sell or encumber a property, then the Court shall issue an order
for the next of kin and all interested persons to appear and show cause why the
petition to sell or encumber should not be granted.
Sale will be allowed if necessary or would-be beneficial to the ward. So, any of those
grounds may be alleged.
So, who is the next of kin referred to here? Those whose relationship is such that they
are entitled to share as distributees.
The next step is hearing on return. So the Court shall hear the allegations and
evidence of the petitioner or next of kin or interested persons.
The next step is issuance of order, either denying or granting the petition for sale.
Now, if granted, Court shall issue an Order for the sale and encumbrance.

 The proceeds of the sale of which shall be expended for the maintenance or education
of the ward.
Order shall specify the grounds for the sale or encumbrance.
Sale must be public sale or public auction.
Original bond shall stand as security for the proper appropriation of the proceeds.
Authority shall not extend one year.
Guardian is prohibited to acquire wards property.
Sec. 23.
Court may order investment of proceeds and direct management if it is for the best
interest of the ward.
Court shall make such orders for the management, investment and disposition of
property and effects.
Grounds for removal of guardian:
(1) Insanity
(2) incapability of discharging his trust
(3) found unsuitable
(4) has wasted or mismanaged the property of the ward,
(5) failed to render an account or make a return for 30 days.
There must be reasonable notice if there is any motion to remove. If removed, then, the
guardian shall be required to surrender the property of the ward.
Court may allow guardian to resign for justifiable causes. A new one shall be appointed
if a guardian is removed or is allowed to resign, but no motion for removal or
resignation shall be granted, unless the guardian has submitted the proper accounting
and approval of the Court of the accounting.
Ground for termination of guardianship:
(1) ward has come of age
(2) ward has died.
Court motu propio or on motion may terminate guardianship.

Sec. 26.
Who shall be served final and executory judgment?
(1) Local Civil Registrar, and
(2) Register of Deeds where his property or any part thereof is situated.
Venue. This is guardianship of incompetent person, RTC of the place where the
incompetent resides or RTC of the province where his property or part thereof is
situated.
Meaning of incompetent: person suffering penalty of civil interdiction sentenced to
reclusion perpetua, hospitalized lepers, prodigals, deaf and dumb, etc.
Then, venue may be transferred if the ward acquired property in another province.
Rule 93 Appointment of Guardians of Incompetents

Who may file? Relative, friend and other persons.

Petition must be in writing.
It must be verified.
Prayer is for appointment of general guardian.
Contents: Jurisdictional Facts, facts of incompetency and other matters.
Factors to be considered, financial situation, physical condition, sound judgment,
prudence and trustworthiness, moral character and conduct.
Next step is for the Court to fix a time and place for hearing.
Then, reasonable notice. Notice is jurisdictional.

Sec. 4
Who may oppose? Interested person.
How? File a written opposition.
On what ground? Competency of the alleged incompetent or unsuitability of the person
for whom letters of guardianship are prayed.
Then what comes next? Hearing and order for letters to issue. Then, competent must
be present.
The Court must hear the evidence of the parties. If the person in question is
incompetent, it shall appoint a suitable guardian for his person or estate.
The order appointing guardian is executory, although the order is interlocutory.
Now, guardian for non-resident incompetent. Who may file? Relative, friend or any
person interested in the estate of the incompetent.
Sec. 8
Who may be served or who shall be served judgment of the Court? Civil Registrar
Rule 94 Bonds of Guardians (pareha ra ni sa Minors according to Judge)

Rule 95 Selling and Encumbering of Property of Ward (the same Ruleaccording

to Judge)

Rule 96 General Powers and Duties of Guardians

Sec. 4.
The estate must be managed frugally and the proceeds applied to maintenance of
ward.. (Taas kaayo ang provision, ang epigraph ra maoy importante diha, paliko-liko
lang)
Guardian may be authorized to join in partition proceedings of the hearing.
Now, what is the procedure when a person suspected or when there is a person
suspected of embezzling or concealing the prop of the ward? Anyone who is suspected
of having embezzled, concealed or conveyed away any manner a property of the ward,
the Court may cite the suspected person to appear for examination.
Sec. 7.
10.Inventories and Accounts of the Ward.
11.Duty of Guardian to render an inventory within 3 months after his appointment and
annually.
12.Rendition may be compelled upon application of an interested person. I
13.nventories and accounts shall be verified, meaning under oath.
14.All the estate of the ward shall be appraised.
Sec. 8.
When Guardians Account presented for settlement? Upon the expiration of a year
from the time of his appointment, and as often as may be required, a guardian must
present his account to the Court for settlement and allowance.
He shall be allowed reasonable expenses incurred in the execution of his trust.
He must, of course, be compensated for his services.

 After termination of the proceedings, a petition for an accounting should be filed as

a separate case in the Court of competent jurisdiction. Attys fees allowed. Court
may determine Attys fees.
Rule 97 --- Termination of Guardianship of Incompetent
A person declared incompetent or his guardian, relative or friend may petition the
Court to have his present competency judicially determined.
If he is found no longer incompetent, then his competency shall be adjudged and
the guardianship shall cease.
Guardian may be removed or allowed to resign.
An order of the trial court removing a guardian may be executed pending appeal
where there are urgent or compelling reasons therefor.
Trial court cannot motu propio order closure or termination of guardianship.
The ward should be notified of such hearing. Skip Sections 3 and 4.
Then, who shall be served judgment? LCR, Local Civil Registrar.
Rule 98 Trustees

Sec. 1.
Trustee - necessary to carry into effect the provision of a will or a written
instrument;
Appointed by RTC.
You know that trust is legal relationship between one person having equitable
ownership in property and another person owning the legal title to such property.
Two kinds:
(1) Express trusts, created by a direct and positive acts of the parties by some
writing, or deed, or will or by words evidencing an intention to create trust.
(2) Implied trust, one which without being express is deducible from the nature of
the transaction as a matter of intent.
Trust is the right to the beneficial enjoyment of property, the legal title to which is
vested in another.
Express trust is created by the intention of the trustor or of the parties.
Implied trust comes into being by operation of law..
Rule 98 applies only to Express Trust.
Trustor is the person who establishes the trust. Trustee is the person in whom
confidence is reposed, while cestui que trust is the person for whose benefit the
trust has been created.

Sec. 2.
Appointment and Powers.
When shall trustee be appointed? If testator has omitted in his will to appoint a
trustee, and if such appointment is necessary to carry into effect the provision of the
will, then RTC shall appoint trustee.
Sec. 3.
Appointment and Powers of New Trustee under Written Instrument.
When trustee under a written instrument declines, resigns, meaning refuses to
accept the trust,
dies, or is removed before the objects of the trust are
accomplished and there is no provision in the instrument for supplying the vacancy,
then RTC after due notice to all interested parties, appoint a new trustee to act
alone or jointly with others.

Sec. 4.
Proceedings where trustee appointed abroad.
When land in the Philippines is held in trust for persons resident here but the trustee
who derives his authority from without the Philippines, such trustee, on filing
petition with the RTC, will be ordered to apply to the Court for appointment of
trustee.
If he neglects or refuses to comply with such order, then the Court shall declare
such trust vacant and a new trustee shall be appointed.
Sec. 5.
Trustee must file a bond in the amount fixed by the Court, payable to the govt.,
sufficient and available for the protection of any party-in-interest.
If he neglects to file a bond or declines or resign the trust, Court may until further
order exempt a trustee under a will from giving a bond when the testator has
directed or requested such exemption.
Sec. 6.
Conditions included in the trustees bond:
1. Make and return a true inventory of all the real and personal estate belonging to
him as trustee.
2. Manage and dispose of all such estate according to law and the will of the
testator.
3. Render upon oath at least once a year a true account of the property in his
hands.
4. Then settle his accounts in Court and pay over and deliver all the estate
remaining in his hands.
Since a trustee occupies a fiduciary relation, meaning trust and confidence, with the
beneficiary is completely disabled from acquiring for his own benefit the property
committed to his custody or management, regardless of fraud. That is conflict of
interest.
General rule, an action to compel a trustee to convey a property registered in his
name in trust for the benefit of the cestui que trust does not prescribe. There are
well-recognized exceptions.
Sec. 7.
-

Appraisal. If inventory is required, the estate and effects belonging to the trust shall
be appraised.
Of course, trustee shall be compensated.
Court shall fix the compensation.

Sec. 8.
-

Trustee may be removed, he may be allowed to resign, provided, there is notice and
hearing.
Grounds:
(1) Insanity,
(2) incapability of discharging the trust,
(3) then, unsuitability.
He is allowed to resign.

Sec. 9,

Proceedings for Sale and Encumbrance of Estate.

When is it allowed? Sale or encumbrance. If necessary or expedient.
So, the Court on petition, after due notice and hearing, order the sale or
encumbrance of property and the re-investment or the application of the proceeds,
in such manner as well be best effect the objects of the trust.
Beneficiary is not entitled to income or sale of property. Again, conflict of interest.

Adoption. Domestic Adoption.

Sec. 1.
6. Meaning of adoption - Juridical act, proceedings in rem because proceeding in rem,
there is publication, theoretically, binding against the whole world.
7. It is a relationship between two persons, similar to that which results from legitimate
paternity and filiation.
8. How do construe adoption statutes? Strictissimi juris.
9. Relationship is limited to the, solely to the adopter and adopted. And does not extend
to the relatives of the adopting parents or of the adopted child.
10.Neither are the children of the adopted considered as descendants of the adopted.
11.Status of the parent and child. It may give the child a legitimate status.
12.Interest and welfare of the child is the paramount consideration. And our adoption
statues, therefore, every reasonable intendment should be sustained to promote and
fulfill this noble and compassionate objective of the law.
13.Main purpose of adoption: promotion and the welfare of children.
14.What law determines jurisdiction? It is the law in force at the time of commencement
of the action.
Sec.2.

Best interest of the child shall be the paramount consideration in all matters relating to
his CCA: care, custody, adoption in accordance with Phil. Laws, UN Convention on the
Rights of Child, etc.
One other significant objective.
State shall provide alternative protection and
assistance through foster care or adoption for every child who is a foundling,
neglected, orphan or abandoned. So, State shall:
(1) ensure that every child shall remain under the custody of the biological parents.
(2) Safeguard biological parents from making hasty decisions.
(3) Prevent child from unnecessary separation. Conduct information and educational
campaigns.
(4) Ensure that government and private sector have the capacity to handle adoption
inquiries and encourage domestic adoption.
(5) Protect adoptive parents from attempts to disturb their parental authority and
custody.
Any voluntary or involuntary termination of parental authority shall be administratively
or judicially declared to be established. Rather so as to establish the status of the child
as legally available for adoption.
Special Proceeding December 2, 2010 (Room 403) Transcription
RULE 99 - ADOPTION
Definition:
-

Child legally available for adoption a child who has been voluntarily or involuntarily
committed, freed of parental authority of his biological parents

Voluntarily committed child one whose parents knowingly and willingly relinquished
parental authority

Involuntarily committed child one whose parents had been permanently and judicially
deprived of parental authority over him due to abandonment or for other causes
including incompetence to discharge parental responsibilities

Foundling (important definition) deserted or abandonenact an infant or child whose

parents are unknown or child committed to an orphanage or charitable or unknown
institution with unknown facts and parentage

Abandoned child one who has no proper parental care or guardianship or his or whose
parents have deserted him

Dependent child one who is without a parent, guardian or custodian, for good cause
desires to be relieved of his care and custody

Neglected one whose basic needs are deliberately not attended to, inadequately
attended to, physically or emotionally

Physical neglect when the child is malnourished, or without proper shelter

Emotional neglect raped, seduced, maltreated, exploited, etc.

Child placement agency dully Licensed and accredited by the DSWD if to provide
comprehensive had child welfare services

Child caring agency duly licensed and a credited by the DSWD had that provides 24
are residential care services for a bond end, or fund, had neglected or a voluntarily
committed children

Deed of voluntary commitment if written instrument relinquishing parental authority

committing the child to the care and cost a date of the DS WT

child study report - a study and made by the child social worker had of the childs legal
status placement, history, etc. and that of his biological family, needed in determining
the most appropriate placement for him

Home study report a study made by the courts social worker had all the motivation
and the capacity of the prospective adoptive parents to provide a home that meets the
needs of a child

Supervised trial custody the period of time during which a social worker oversees the
adjustment and emotional relations had between the adopter an adoptee

Simulation of birth (remember: there is a crime of simulation of birth under the RPC, but
RPC does not define what is simulation, there is simulation under 7610, 9344- Juvenile
Justice Law and under trafficking in person law)- tampering of the civil registry to make
it appear n the birth records that a certain child was born of the person who is not his
biological mother, and thus cause the child to lose his true identity and status

Pre adoption - services refers to psycho-social services provided by a professionally

trained social workers of the DSWD

Who may legally adopt

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 moral turpitude

Alien possessing the same qualifications but 2 more conditions: his country has
diplomatic relations with the Republic of the Philippines, that he has been living in the
Philippines for at least 3 continuous years prior to the filing of the petition for adoption
and maintains such residence until the adoption decree is entered, that he has been
certified to have the legal capacity to adopt in his country, and that his government
allows the adoptee to enter his country as his adopted child

Requirement of residency may be waived in three cases

But in the respect to the ward - after the termination of guardianship and and clearance
of his financial accountabilities

Husband and wife shall jointly adopt, except in 3 cases

Who may be adopted?

person below eighteen (18) years of age

legitimate child of one spouse

Illegitimate child

Person of legal age, regardless of civil status

Child whose adoption was previously rescinded

child whose biological or adoptive parents have died

child not otherwise disqualified by law or these rules of court

Venue
15.family court
16.Province or city: where the prospective adoptive parents reside

Contents of the Petition

15.Form: Verified
16.Contents: state whether the petition contains an application for change of name,
rectification of simulated birth, voluntary or involuntary commitment of children, or
declaration of child as abandoned, dependent or neglected

If the adopter is a Filipino allege the following

jurisdictional facts

petitioner is of legal age, full civil capacity and legal rights;. etc

If the adopter is an alien

jurisdictional facts

his country has diplomatic relations with the Philippines

legal capacity to adopt

s government allows the adoptee to enter his country

residence for at least 3 years preceding the filing of his petition

The requirements of certification of the aliens qualification may be waived in 3

instances

If the adopter is the legal guardian of the adoptee that guardianship had been
terminated and the guardian had cleared his financial accountabilities

If the adopter is married t he spouse shall be a co-petitioner for joint adoption. There
are 3 exceptions.

If the adoptee is a foundling - the petition shall allege the entries which should appear in
his birth certificate

If there is a prayer for a change of name then the cause or reason for the change of
name

In all petitions, it shall also be alleged:

(3) first name, surname, etc. of adoptee
(4) adoptee is not disqualified
(5) probable value and character of the estate of the adoptee,etc.
SEC.

8. Rectification of Simulated Birth (if the adoption has the prayer for rectification)
It shall be alleged that the adopter is s applying for rectification of a simulated birth
simulation was made prior to the date of effectivity of RA 8552
that it is for best interests of the child
that adoptee has been consistently considered and treated by petitioner as his own
child

SEC. 9.
(3) Adoption of a foundling, an abandoned, dependent or neglected child.
1. State the facts showing abandonment, etc.
2. names of the parents
3. name of the duly licensed child-placement agency or individual
4. DSWD is authorized to give its consent
Sec. 10.
(4) If the petition for adoption also carries with it the petition for change of name. State the
following:
1. name of the child
2. aliases or other names
3. full name by which the child is to be known

(5) There is an old jurisprudence to the effect that you cannot lump together adoption and
change of name, for 3 reasons: (1) they have different jurisdictional facts; (2) it is not
allowed for joinder of parties
SEC. 11.
(3) Annexes to the Petition
1. Birth, baptismal or foundling certificate
2. Affidavit of consent detailing some facts under letter B (I think Judge means to refer
to Sec. 11-B of the Codal)
3. Child study report
4. If alien, certification that he has the legal capacity to adopt
5. Home study report
6. Adopters Decree of annulment, nullity or legal separation
(4) Now, the written consent of the natural parent can be dispensed with if the paren has
abandoned the child, or such parent is insane or hopelessly intemperate. Physical
estrangement alone without physical and moral desertion is not tantamount to
abandonment
(5) A person may legally adopt 2/ more children
SEC. 12
(3) The next step is order of hearing
(4) When shall the court issue the order? If the petition is sufficient in form and substance
(5) Then, it shall issue an order containing the following:
1. registered name of the adoptee
2. purpose
3. complete name which the adoptee will use if petition is granted
4. date and place of hearing
5. directive to the social worker, to prepare and submit the Child and Home study
report
6. directive to the social worker of the court to conduct counseling sessions with the
biological parents
(6) furnish the Solicitor General, DSWD, biological parents of the order
SEC. 13. Child and Home Study Reports
(3) What is the task of the social worker?
1. verify with the Civil Registry the real identity and registered name of the adoptee
2. secure a certificate of foundling or late registration
(4) The social worker shall also establish that the child is legally available for adoption
(5) In case the adopter is an alien, the home study report must show the legal capacity to
adopt
(6) If after the conduct of the case studies, the social worker finds that there are grounds to
deny the petition, then he shall make the proper recommendation to the court
SEC. 14. Hearing
(3) Next is hearing. During the hearing petitioner and the adoptee must personally appear
(4) Court shall verify whether the biological parents have been counseled
SEC. 15. Supervised Trial Custody
Before issuing of the decree of adoption. Note: its not decision, or order, its DECREE
Court shall give the adopter trial custody of the adoptee for a period of at least 6
months, within which the parties are expected to adjust psychologically and
emotionally, and also for the purpose of adopting binding relationship
Trial custody may be reduced or exempt, If the court finds that he same shall be for the
best interests of the adoptee, stating the reasons therefor
But an alien adopter however must complete the 6-month trial custody. There are 3
exceptions
SEC. 16. Decree of Adoption

 After trial custody, and the court is convinced from the trial custody report and the
evidence presented that the adoption shall redound to the best interests of the
adoptee, a decree of adoption shall be issued
Taking effect as of the date the original petition even if the petitioners die before its
issuance
Contents of the decree:
1. name by which the child is to be known and registered
2. it shall also contain an order to the clerk of court to issue to the adopeted a
certificate of finality
3. adopter to submit a certified true copy of the decree of adoption and the certificate
of finality to the Civil Registrar.
Duty of the civil registrar:
1. Annotate on the adoptees original certificate of birth the decree of adoption
2. issue a certificate of birth
3. seal the original certificate of birth
If the adoptee is a foundling, the court shall order the Civil Registrar to annotate the
decree of adoption on the foundling certificate and a new birth certificate shall be
issued
SEC. 17
Clerk of Court shall prepare book of adoptions
The validity of adoptions cannot be collaterally attacked, there must be a direct action
SEC. 18
all hearings in adoption cases, shall be confidential and shall not be open to the public
SEC. 19. Rescission of Adoption of the Adoptee
Form: verified or under oath
Filed by adoptee (not adopter)
Who is over 18 years of age. If minor he must be assisted by guardian or counsel
Grounds:
1. repeated physical and verbal maltreatment
2. attempt on the life of the adoptee
3. sexual assault or violence
4. abandonment
Adoption shall not be subject to rescission by the adopter.
Venue: Family court of the city or province where the adoptee resides
Judge: we dont have family courts yet. So, RTC designated as family courts. The family
courts will be located in the most populous municipality , not city. In Cebu, its
Consolacion

SEC. 21. Time within which to file petition for recission

within 5years after he reaches the age of majority
or if he was incompetent at the time of the adoption, within 5 years after recovery
from such incompetency

SEC. 22. Order to Answer

7. respondent shall answer the petition within 15 days from receipt of the irder

SEC. 23. Judgment

8. after trial, then judgment
9. If the court finds that the allegations of the petition for rescission are true then, it
shall render judgment ordering the rescission of adoption, with or without costs, as
justice requires
10.parerental authority of the biological parent of the adoptee, if known, or the legal
custody of the Department shall be restored if the adoptee is still a minor or
incapacitated
11.successional rights shall revert to its status prior to adoption
12.another effect: order the adoptee to use the name stated in his original birth or
foundling certificate
13.court shall order the Civil Registrar to cancel the new birth certificate of the adoptee
and reinstate his original birth or foundling certificate

INTER-COUNTRY ADOPTION
SEC. 27. Objectives
consider inter-country adoption as an alternative means of child care
ensure that the child enjoys the same protection accorded to children in domestic
adoption
take all measures to ensure that the placement arising therefrom does not result in
improper financial gains

SEC. 28. Where to File Petition

verified petition to adopt a Filipino child may be filed by a foreign national or Filipino
citizen permanently residing abroad with the Family Court having jurisdiction over the
place where the child resides or may be found

SEC. 29. Who may be adopted

child legally available for domestic adoption may be the subject of inter-country
adoption

PROCEEDINGS REGARDING CHILD CUSTODY, SEC. 6 AND 7, RULE 99

 court shall:
1. award the care, control and custody of the child as will be for its best interest
2. permitting the child to choose which parent it prefers to live with, if it be over 10
years of age, unless the parents so chosen are unfit to take care of the child
3. if both parents are improper persons, then paternal or maternal grandparents , if not
oldest brother or sister, if not, some reputable and discreet person or it may order
the commitment of the child to any suitable asylum
no child under 7 years of age shall be separated from its mother exception: unless the
court finds there are compelling reasons therefor
RTC-family court, upon petition, by some reputable resident of the province setting
forth facts, may issue an order requiring parents to show cause why the child should
not be taken from its parents
Petition for custody of a child may be petition filed for the purpose. It may also be
petition for habeas corpus or as an incident to a main proceeding
Parental authority and responsibility are inalienable and may not be transferred or
renounced. Except in cases authorized by law

Rule 101 - PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSONS

Under the proposed new rule, it is already cap[tioned as Medical commitment

SEC. 1 Venue
Venue: RTC
Who will file? Secretary of health
Grounds:

1. commitment is for the public welfare, or for the welfare of said person
2. or the one having charged of him is opposed to his being taken to a
hospital
Sec. 2
5. next step is Order for hearing
Sec. 3. Hearing and judgment
6. then, after hearing, Judgment
7. if allegations are found true, then the court shall order his commitment or other place
for the insance

Sec. 4.

 Insane may be discharged if:

1. temporarily or permanently cured

2. Or he may be released without danger

RULE

102-HABEAS CORPUS
This must be studied in connection writ of amparo and writ of habeas data
Habeas corpus: produce the body
Amparo: produce the body. Or if it cannot be produced, look for the missing person
Coverage of habeas corpus:
1. Part I: all cases of illegal confinement or detention, by which any person is deprived
of his liberty
2. Part II: By which the rightful custody of any person is withheld from the person
entitled thereto
The restraint of liberty must be illegal and involuntary deprivation fo freedom of action
Writ is proper legal remedy to enable parents to regain custody over minor child
Under second part, that is custody, there may be no illegal nor involuntary deprivation
for freedom of action of the person whose custody petitioner seeks. Al the petitioner
must show is that he is entitled to custody of the person whose release to him is
withheld by respondent
Case in point: there is this guy, more than 50 years old. His style, is he goes to towns
where there are beauty contest, and there are young girls. Nakadala siya ug isa ka
chicks. Naa isa ka beauty titlest,15 years old siya, gi-puyo niya diri. Family name G.
Although it is a public record. They filed a petition for the issuance of a writ of habeas
corpus. Iyang defense kay: ni-sugot man ang bata. Ang gago nga judge, gi-deny ang
habeas corpus kay ni-sugot ang bata. Thats not the issue. The issue is the mother or
the parents are deprived of parental authority. Not the voluntary pakigpuyo diri sa lalaki
The objective of the writ is to determine whether the confinement or detention is valid
or lawful. It if is, then the writ cannot be issued. IT is issued when one is deprived of his
liberty or is wrongfully prevented from exercising his parental authority
It is issued when a person is denied of one of more of his constitutional freedoms. When
there is denial of due process, where the restraints are not merely involuntary, but
uncessary
The essential object of habeas corpus is to inquire into all manner of involuntary
restraint and to relieve a person therefrom is such restraint is illegal
Now suppose a person is temporarily free, may he avail of the petition for habeas
corpus? The answer is in the affirmative. The case is Atty Efren Moncupa vs. Sectary of
National defense, Juan Ponce Enrile. Moncupa, a lawyer was detained during the martial
law years. He was released but he was enjoined to report to the military camp every
weekend. So he filed a petition for habeas corpus. The solicitor general filed a motion to
dismiss, it is useless, he is already free. The supreme court said Moncupa is entitled to
the issuance of the writ of habeas corpus because he is supposed to be free but his
freedom of movement was restricted. Remember, there is a constitutional right:
freedom to travel
So, in habeas corpus, the inquiry is not physical restraint alone, it includes restriction of
freedom of movement which are attached for conditions of temporary release
Where the restraints are not merely involuntary but appear to be unessary, and where
the is to deprivation of freedom held to be invalid, the person concerned applying for
the issuance of the writ may still avail himself of the privilege of the writ of habeas
corpus
Amparo: the case is Manalo Brothers vs. Secretary of national defense. Decided year
2010. What happened to the case? This is the case of involuntary disappearance ,
subject matter of amparo. In the case of the manalo brothers, there were 3 brothers
kidnapped by the military and detained in the military barracks. Missing for several
months. They were able to escape when the guard was sleeping. They were already
free. They filed a petition for a writ of amparo with the court of appeals

 The secretary of national defense filed a motion to dismiss. The petition for amparo is
moot and academic. Supreme court said No, because amparo does not cover only
deprivation of life, liberty and security, but threats, the most important, threats, there
was still a threat against the persons of the manalo brothers because they might again
be kidnapped and possibly killed. Okay, thats the case of manalo
Grounds for issuance of writ:
1. Once judicial proceedings have started the inquiry is not on the erros commited, but
whether the proceedings or judgment under which the person is restrained is a
complete nullity.
1. So the question is, may the court entertain a petition a petition for habeas
corpus if there is an order or decision of another court. General rule No, because
habeas corpus is not a writ of error. The habeas corpus court should into review
the findings of fact and law of another court with jurisdiction over the subject
matter or the offense court. Basta naa jurisdiction, habeas corpus cannot
correct. I warn you, even the decision of the other court is wrong, meaning
findings of fact wrong, conclusion of law wrong. Because of the principle of
immutability of judgment. You know this from civil procedure. Once the judgment
of court has become final, no matter how erroneous the judgment is, it cannot be
corrected. For the case has to end at some point in time.
2. 3 exceptions: to correct clerical errors, nunc pro tunc judgment, and of course if
the dispositive is vague, then you may file a motion for clarificatory judgment
2. So, the inquiry in the petition for writ of habeas corpus is addressed not to errors
committed by a court within its jurisdiction, but tot question whether the proceeding
or judgment under which the person is restrained is a complete nullity
3. Example: if a case of frustrated homicide. Is tried and judged by the MTC. Habeas
corpus is a remedy. It is not an interruption of proceedings, you are not reviewing
evidence. You are simply telling the other court that he has no jurisdiction or his
proceedings are complete nullity
4. Example: violation of due process, accused was not given opportunity to present
evidence. Habeas corpus court cannot review the findings of another court. It is not
a writ of error.
5. Because habeas corpus ia not a remedy if there are other adequate remedies. If
there is erroneous findings of fact, conclusion of law, then your remedies are the
following. You either file a motion for reconsideration within 15 dyas, you may either
file a motion for new trial FAME, etc. then you may file a petition for relief under
rule 38. If all else fails, then you may file a motion for annulment on 2 grounds: lack
of jurisdiction over the person/ offense charged OR extrinsic fraud/ fraud committed
outside of trial
6. The writ may be availed of
1. where as a consequence of judicial proceeding, there has been a deprivation of
constitutional right, resulting in restraint of a person
2. court has no jurisdiction to impose the sentence
3. excessive penalty, which is void to such exceess
7. it is settled that where the decision or conviction is already final, the appropriate
remedy of the accused who should be freed in view of the retroactive effect of a law,
is to file a petition for habeas corpus, not a motion for modification for final deicision
8. Case in point: Robin Padilla law (Amenedment to PD 1866), penalty was lowered.
Padilla has served the lower penalty. How do you free him. Retroactive man. File a
petition for habeas corpus
9. PD 582, Highway robbery. There was a decision rendered by the SC of indiscriminate
highway robbery. There was a favorable jurisprudence for their acquittal. So if you
apply the jurisprudence, their lawyers can file habeas corpus
10.Remedy is not for correction of errors. Court cannot in habeas corpus proceedings,
review the record in a criminal case, after judgment of conviction has been
rendered.
11.To ascertain whether the findings of the trial court were in accordance with the
evidence
12.Or to pass on the correctness of the conclusions of law of the trial court, based on
the facts thus found

13.Mere errors of fact and law which did not have the effect of depriving the trial court
of its jurisdiction of the court and defendant must be corrected by appeal, by the
form prescribed by law
Sec. 2. Who may grant the writ
Supreme Court, or any member
Court of Appeals or any member
RTC
If issued by the SC, returnable or enforceable anywhere, to either Court of Appeals,
Sandiganbayan or RTC
1. What does this mean: the hearing can be made by CA, Sandiganbayan or RTC
If issued by CA- returnable to RTC. RTC shall of course hear the petition
If issued by the RTC returnable or enforceable only within his judicial district
May an MTC judge entertain petions for habeas corpus? Yes, in the absence of MTC
judge
Compare: writ of amparo. Amparo, usually RTC
Sec. 3. Requisites of application
Verified
Signed, by party for whose benefit it is intended, or by some person on his behalf
Containingg the following:
1. person in whose behalf the application is made is imprisoned or restrained of his
liberty otherwise, the court will have no jurisdiction
2. officer or name of the person by whom he is so imprisoned or restrained; - may be a
public officer or employee or a private person
1. if both are unknown or uncertain, the may be described by an assumed
appellation like Station commander of Station 5
3. place where he is so imprisoned or restrained if known
4. copy of the commitment or cause of detention of such person like a warrant of
arrest, order of commitment, certificate of finality of judgment
1. or, if the imprisonment or restraint is without any legal authority, such fact shall
appear
In all petitions for habeas corpus, the court must inquire into every phase and aspect of
petioners detention.

Sec. 4. When shall the writ be denied or not allowed?

If it appears that the person alleged to be restrained of his liberty is in the custody of
an officer under process issued by a court or judge

1. Meaning, there is an order of commitement. There is a decision, especially if the

decision ahs aralredy becme final and execuory and the clerk of court has already
issued a certificate of finality
or by virtue of a judgment or order of a court of record
Purusnat to Sec. 4, ocne a person detiand is duly charged in court, he may no longer
question his detention through the petion for ths issuance of a writ of habeas corpus.
His remedy would be to quash the information or warrant of the arrest duly issued
So, the body of the accused in court already. The judge will ask the detaining officer
Why are you detaining him. Your honor, there is already a warrant of arrest and

information has already filed. Tapos! Order: since there is already an information a
warrant issued, petion has become moot and academic. So, dismissed.
The habeas corpus court cannot question the manner, legality of the issuance of the
warrant of arrest and ifnomraitn. Remember: Rules of criminal procedure. There is
executive determination of probable cause and judicial determination of probable cause
before issuing the warrant, the judge must find probable cause. If there is probable
cause, then the judge will issue the warrant of arrest. That discretion cannot be
disturbed by another court.
Now, if there is already an information. Then there is an adequate remedy, file a motion
to quash on lack of jurisdiction, etc. If there is a warrant of arrest improperly issued,
then the remedy is to file a motion to quash and set aside the warrant of arrest for lack
of jurisdiction over the person of the detainee
If the accused is out on bail, habeas corpus will be dismissed. Why? Because he is no
longer physically restrained
If there is already a judgment or order of the court with jurisdiction, then the habeas
corpus will be dismissed
Other instance of habeas corpus will not issue:

1. subsequent issuance of judicial process

2. filing of complaint or information
3. filing of motion for bail because if bail and approved, then accsued is on temporary
liberty
Illusorio vs. builder: Mrs. Filed a petition of habeas corpus, para and ban mu-adto sa iya.
SC said, dili pweded and habeas corpus, kay personal obligation na sa bana. The wife
may not secure a petition of habeas corpus to compel her husband to live with her in
conjugal bliss.
Suppose, there is a case submitted for decision, all the records were lost. Nakaon sa
anay, nasunog. Is habeas corpus a remedy? No, there is an adequate remedy which is
reconstitution of records
Habeas corpus and certiorari may be availed of, they are not incompatible and
inconsistent. They may be ancilliary to each other if necessary to give effect to the
orders of the higher court.
1. Writ of habeas corpus reaches the body and jurisdiction , but not record. A writ of
certiorari, reaches the record but not the record
2. Writ of habeas corpus may be used with certiorari for the purpose of review
3. In other words, if there is a grave abuse of discretion in the issuance of habeas
corpus, certiorari is a remedy
Habeas corpus does not lie where the petioner has the remedy of appeal or certiorari.
Neither can it grant the writ at this stage, because habeas corpus is not intended as a
substitute for the function ot the trial court

Sec. 5. When the writ must be granted and issued

(6) court or judge authorized to grant the writ, when a petition therefor is presented and it
appears that the writ ought to issue. SO, facial determination. Look at the allegations
oo the petition. Sufficient in form and substance? Then grant the petition
(7) grant the same forthwith, and immediately thereupon the clerk of the court shall issue
the writ under the seal of the court
(8) in case of emergency, the judge may issue the writ under his own hand, and may
depute any officer or person to serve it

1. its the court who issue the order, but the clerk prepares the writ of habeas corpus
2. if the clerk refuses to issue the writ then he may be liable for indirect contempt of
court, without prejudice to disciplinary action (Administrative case)

December 9
Special Proceedings
Sec. 6
To Whom writ may be directed or what to require?
-Directed to a peace officer or the respondent is a public officer or employee, maybe a private
person.
If imprisoned or restraint by officer writ shall be directed to him.
Ex. A Station Commander, 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 specified. So
you are commanded to produce the body of the subject. December 17 2010 at 9 in the
morning.
-If the subject is imprisoned or restrained by a private person.
The writ shall not be directed to him. It shall be directed to an officer 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 specified. So the person who imprisoned or restrained another
will be summoned. He will be directed to appear and to show cause as to the imprisonment or
restraint.
How prisoner designated?
By his name,
If his name is known. Ex. Produce the body of Juan Delacruz.
If not known then he shall be described and identified.
Writ may be served in the province by the sheriff or other officer designated by the
court or judge.
The original shall be left to the person whom is directed, preserving a copy to make a return
of service.
Supposed the person cannot be found.
Service shall be made on any person exercising such custody.

Sec. 8 How writ executed and returned.

If writ is directed to an officer. He shall convey the person imprisoned or restrained before the
judge. \
Ex. Station commander, You bring the body of this subject to court or in absence of the
(severity? Di ko sure) in some other judge of the same court.

The Body of the subject is not produced for the following reason:
1.)Sickness or infirmity of the person being produced and such person cannot be without
danger be brought in the court or judge. Ex. Subject is in the ICU.
No Writ may disobeyed due to defect of form.
Sec.10 Contents of return
Return is the answer or comment of the respondent officer. It must be in writing, under oath
and
plainly and unequivocally containing the body, whether he has or not the body in his custody.
Difference Amparo and Habeas Corpus.
HC:If the Officer says that the person is not in the custody, the petition will be dismissed.
A: The court will command the officer to look for him. Report to the court is there any
evidence that he is detained by somebody? If he has in his custody, then explain the
authority and true cause therein.
Ex.Yes he is detained, There is an order of commitment signed by the executive judge.
If with him and cannot produced. Must explain the non production.
Ex. Gravity of the sickness or infirmity and such person cannot be without danger be brought
in the court or judge.
If the detainee is transferred: He shall state particularly to whom and what time, cause,
authority such transfer is made.
The return shall be signed and sworn to by the officer.
If there is a return then the court will conduct a hearing. The judge shall immediately proceed
to hear and examine the return and such other matters put into consideration. If not produced
then the must prove the sickness or infirmity of the person. The court or judge must be
satisfied that the infirmity is so grave etc.
When the return evidence and when only a plea?
If the reason for the detention is the existence of the warrant of commitment pursuant to law,
Judgment is final and executor, or under the rule of warrantless arrest. It shall be stated in the
return.
The return shall be considered as prima facie evidence as the cause of restraint. Meaning the
Habeas Corpus Court as a rule cannot question the validity of the order of commitment, any
other order or final judgment of a court. HC court is not an appellate court. It shall give full
faith and credit to another court.
If private person. It shall be considered as a plea of the facts therein stated. The Private
person must prove by clear and convincing evidence of the legal and factual basis of the
detention.
The return if by an officer, need not explain. It is prima facie presumed. The petitioner needs

to overturn the presumption. If private person, the burden is on him to prove.

If the release of a detainee is an establish fact and is not in dispute, and do not constitute a
missing person, the petition becomes moot and academic. The burden of proof is on the
officer to prove the release.
Sec. 14 When person lawfully imprisoned re committed and when let to bail.
If the person detained is lawfully committed then he cannot be released for commission of the
crime punishable by death.
If committed because he committed an offense not punishable by death then he may be
recommitted to prison or admitted to bail.
An accused against whom an information has been dismissed for lack of jurisdiction may no
longer be detained. There is simply nothing to hold him answerable for. The court where the
criminal case is filed is without jurisdiction, the authority of the court to hold the accused in
confinement pending trial is a valid subject of petition of habeas corpus.
SEC 15. When a prisoner is discharged when no appeal.
If the officer after receiving the order habeas corpus case is directed to release and he does
not appeal, then the person detained must be released, but the person cannot be released if
the officer files a notice of appeal.
When the court or judge has examined into three cause of capture and restraint of the
prisoner and is satisfied that he is unlawfully imprisoned or restrained, he shall be discharged
from confinement, but such discharge shall not be effective until copy of the order has been
served on the officer or person detaining.
If the officer or person detaining does not decide to appeal, the prisoner shall be released,
otherwise stated if the officer appeals the decision of the court then the prisoner may not be
released.
Who may appeal the order granting the writ?
-

Fiscal, Prosecutor

Solicitor General

The Private party are bereft of the personality to prosecute the appeal.
Failure to appeal is 15 according to jurisprudence.
Sec. 16 Penalty of the Clerk of Court if refuses to issue the writ.
-

Fine 1000

Contempt of court.

Penalty if the writ is disobeyed.

Fine 1000

Contempt of court

A person discharged under the writ may not be imprisoned again. If imprisoned again penalty
same as above.
No prisoner may be removed from custody unless by legal process or by order of the proper
court

Writ of Amparo
Effectivity: October 24, 2007
From the word amparar or to protect, a Spanish word that originated in mexico.
A remedy available to any person whose right to life, liberty and security is violated or
threatened (take note, not found in habeas corpus) by an unlawful act or omission by a
public officer or private person or entity like a corp. .
The writ shall cover extra judicial killings and enforced disappearances( not found in the law,
but in a Bill). The writ does not define the both above, It is defined under the International
HumanitarianL law and anti torture law.
Enforced Disappearances(Characteristics):
17.Arrest, detention, abduction of a person by a government official or organized group. Or
private individuals acting in the direct or indirect acquiescence of the government.
18.Refusal of the state to disclose the fate or whereabouts of the person or refusal to
acknowledge the deprivation of liberty which places such person outside the protection
of the law.
Amparo is both
17.Preventive Relief- Breaks the expectation of impunity in the commission of the above
offenses
18.Curative relief- It facilitates the punishment of the perpetrators. It will inevitably lead to
subsequent investigation.

Applicability:

Violations or threatened violations of

Right to life, liberty, security

Extra judicial Killings

Enforced Disappearances

This may be applied retro actively.

Secretary of National defense vs. Manalo- When victims of enforced disappearances are
separated from the rest of the world behind secret walls, they are not separated from the
constitutional protection of their basic rights. Manalo bros. were kidnapped and detained in
Fort Magsaysay in 3 months. They were able to escape. There was another threat of
abduction, possible execution by the military. They filed a petition for prohibition, injunction
with TRO before the RTC. They also prayed for protective custody and inspection orders within
the camp they were detained. When they filed there was no Amparo rule yet, subsequently
the rule on Amparo took effect. The SC applied Amparo retro actively.
Case of General Razon
Case of Fr. Robert Reyes vs Secretary There was an order of hold departure order for
Fr.Reyes. He therefore alleged of his right to liberty and security were threatened by the
issuance of the order. Sc said no, Amparo does not cover this case. There is no actual violation
of the right to life liberty and security.
Who may file?

The aggrieved party himself

Any qualified person should file in the following order:

Member of Immediate family
Ascendant, descendant within the fourth degree of affinity or consanguinity.
Any concerned citizen, organization, institution

The filling of the petition by the aggrieved party suspends the right of all other parties similar
pleadings.
The purpose of order of preference is to prevent indiscriminate filing(groundless petitions)
petit and if the aggrieved party may be afraid.
May be issued at any day, morning or evening.
Issued if on its face it ought be issued.
Manner of service: Personal service is preferred, but substituted service is allowed.
No general denial allowed, because a litigation is not a game of guile, but the search of truth
which alone shall be the basis of justice.
Where to File and return?
RTC of the place where the act was committed or any of its elements occur.
Enforcibility It may be served anywhere in the Philippines.
If issued by RTC then return in RTC. If issued in Sandiganbayan or CA: Answer in Sandigan, Ca
or any justice. They may also direct the RTC to hear, meaning may also be filed with the RTC.
IF SC issued: SC may hear the return or may direct CA , Sandigan bayan, RTC to hear the
petition.
No docket and other lawful fees.

Contents
Form:

In writing

Verified

Under Oath

Contents
Personal circumstances of the petitioner
Name and personal circumstances of respondent
Right to life, security, liberty violated or threatened to be violated.
Investigation conducted if any.
Specifying the names addresses, personal circumstances etc.

 Actions and recourses taken to determine the whereabouts of the person

Relief prayed for
Note- Not found in the Habeas Corpus
When Issued?
Court justice or judge shall immediately order the issuance of the writ if on its face, it ought to
issue
Facial Determination- Meaning the writ on its face is sufficient in form and substance to be
issued by the Clerk of court or the judge.
Penalty for refusing to issue the writ?
The Clerk of court will be liable for contempt of court without prejudice to disciplinary action.
If a person refuses to serve the writ.
How writ is served?
Personal service is preferred.
Apply the rule on substituted service.
Serve in his residence to a person of legal age and must be residing therein, if not then office
with the person in charged of the office..
Served by:
(6) Judicial officer
(7) Person deputized by the court

Return of writ of Amparo.- The answer or comment of the respondent, must be verified,
meaning under oath.
What is stated in the return?
Lawful defenses.
Steps or actions taken to determine the whereabouts of the aggrieved party.( not in
Habeas C)
All relevant information in the position of respondent.
Public officer or Employee shall state the following.
(4) Verify the identity of the aggrieved party.
(5) To recover and preserve evidence
(6) To identify witnesses,
(7) To determine cause, manner, location and time of death or disappearance.
(8) Identify and apprehend the person/s involved.
(9) Bring offenders to a competent court.

(10)

State other matters relevant to the investigation.

Gen rule: Period to file a return is non extendable

Exc.: Highly meritorious grounds
General denial is not allowed. Defenses not pleaded are deemed waived( Omnibus motion
rule).
Sec. 11 Prohibited pleadings and motions
(6) Certiorari
(7) Prohibition
(8) Mandamus
(9) Motion to dismiss(even if anchored on lack of jurisdiction on subject matter)
Motions Allowed: Motion for new trial and petition for relief under rule 38
Effect of failure of officer to make a return?
Hearing shall proceed to heat the petition ex parte.
What kind of hearing? Summary- ex.Testimonial evidence is allowed
Reliefs
Reliefs in Amparo maybe availed at time of petition or any time before final judgment.
Temporary Protection Order- Need not be verified, not be under oath, maybe issued moto
proprio.
Petitioner or aggrieved party or any member of the immediate family, will be protected under
a government agency or by an accredited person or private institution capable of keeping and
securing
The Sc can accredit person or private persons.
Inspection Order- Order any person in possession or control of any designated land or
property to permit for the purpose of entry, measuring , surveying etc. Verified and under
oath there must be a hearing.
Shall state in detail the place or places to be inspected.
The motion for inspection maybe opposed by respondents.
Grounds: National Security or privileged communication.
The movants must show the inspection order is necessary to establish the rights of the
aggrieved party.
It shall specify the person or persons authorized to make the inspection.
Motion for Production of documents, papers accounts, letters, books, photgraphs
etc. Need not be underoath, moto proprio.
Entry into the witness protection program Republic Act 6981.These reliefs may also be availed of the respondent.
Sanctions failure to make a return
Contempt of court

Making a false return

(6) Perjury.
(7) Contempt of Court
Quantum of evidence- Substantial Evidence, That kind of evidence which a reasonable
mind might accept to support a conclusion less than proof reasonable doubt . Its very hard to
prove extra judicial killings as the accused are officers themselves thats why the quantum of
evidence is only Substantial evidence.

If respondent is private individual- He must prove that ordinary diligence was observed in the
performance of duty.
If public officer or employee- He must prove that extra-ordinary diligence was observed in the
performance of duty.
Do not apply the presumption that official duty has been regulary performed to evade
responsibility.
Judgment- 10 days from the time the petition is submitted for decision.
Its very hard to prove extra judicial killings as the accused are officers themselves thats why
the quantum of evidence is only Substantial evidence.
Appeal: It must be under Rule 45 Petition for review on certiorari. Raise questions of fact and
law. If issued by the RTC appeal direct to the SC under rule 45. Sandigan direct to the SC.
Sec 20. Archiving and revival Ordinarily If plaintiff and petition fails to produce a witness
and evidence case will be dismissed for failure to prosecute NOT in Amparo. The Sc will make
a periodic review of archived cases. If the petitioner fails to prosecute after the lapse of 2
years. The petition will already be dismissed for failure to prosecute.
Intsitution of Separate Action.
Amparo is not a criminal, civil, administrative action it is a special process. Even if there is an
existing petition for Amparo may file civil, admin or criminal.
Rule on Primacy of Criminal Action- when a criminal action has been commenced, no
petition for the issuance of a writ may be filed. Reliefs under the writ shall be available by
motion in the criminal case.
When a criminal action has been filed subsequent to the petition of the writ. The petition shall
be consolidated with the criminal action.
This rule shall not diminish, modify substantive rights.
The rules of court is only suppletory to Amparo regarding violations of the cases applicable to
Amparo.
Several purposes of Amparo (found in Secretary of National defense vs. Manalo):
(7) Amparo Liberted- Protection of personal freedom
(8) Amparo Contra Legis- Judicial Review of constitutionality of statutes
(9) Amparo (Cacaccion?)- Judicial Review of constitutionality and legality of judicial
decisions
(10)

Amparo Administrativo- Judicial Review of Administrative cases

(11)

Amparo Agrarian- Judicial Review of rights of agrarian reform for peasants

Constitutional Basis(7) Article VIII sec The duty of the courts of justice to settle actual controversies
(8) Grave Abuse Clause (Contra legis, Cacaccion, Administrativo)
(9) Section 5 No. 2 Power to review, revise, reverse modify or affirm on appeal or certiorari
as the rules of court may provide final judgments or orders of lower court.
(10)
Par. 8 Sec 5 No. 2 Constitutionality or validity of any treaty, law, ordinance,
executive orders, proclamations is in question.

Right to Security
(5) Freedom from threat to life, liberty and security.
(6) Protection by the government, The court cited the production order and search order by
the constitution.

Habeas Data
Produce the data, correct the data, rectify the data. You want to borrow money???( Borrow
from Judge) there are records from private banks that you lose in one civil case and you were
not able to pay. So you cannot borrow. The records in that civil case is already obsolete. You
might have appealed and to the Sc then you won. You have to rectify the record in the banks.
Who may file?
Aggrieved party
Spouse
Children
Parents
Ascendants, descendants
Collateral relatives within the fourth civil degree of consanguinity and affinity
Where to file? RTC of the place where the petitioner or respondent resides or that which has
jurisdiction over the place where the data or information gathered etc.
SC, or CA Sandiganbayan- Action concerns public data files of public offices.
It is returnable where it is filed.
No docket and other lawful fees
Can be served against these persons anywhere in the Philippines:
Private person
Public officers or employees
Entities engaged in the following: Gathering, collecting, storing of data, or info
regarding the person, family, home and correspondence of the aggrieved party.

This is a remedy available to ANY person. This is a privacy rule. Threat to Life, privacy,
liberty, security is violated or threatened with violation.
Reliefs Prayed for:
Updating
Rectification
Suppression- ex. Data na Ala Hayden Kho. E suppress ni or destroy.

Contents of Petition
Personal circumstances of petitioner and respondent.
The manner in which right to privacy is violated or threatened
Actions and recourses taken
Location of the files. Registers , Data bases.
Issuance of Relief
When on its face it is sufficient in form and in substance. It shall also set the date and time for
summary hearing. Not later than 10 days from issuance.
Penalty = Contempt and disciplinary action
How served? By the officer deputized by the courts. Preference on personal service if not then
follow the rule of substituted service.
Return= Shall be made within 5 working days from service of the writ.
Defenses, The release of the data will
Compromise National security
State secrets
Privilege communication( Lawyer client, etc)
Cannot be divulged due to its character

January 20, 2011

Caballes vs. CA
Habeas Corpus is not in the nature of a writ of error meaning habeas corpus court cannot
review the findings of fact or conclusion of law of another court even if it is a lower court. If
not satisfied with the findings and conclusion there are several remedies:
-

Motion for reconsideration

Notice of appeal

If there is already a judgment:

-

Motion for New trial

Petition for Relief (Rule 38)

If all else fails you may file Annulment of judgment on three exclusive grounds :
c.1. Lack of Jurisdiction
c. 2. Extrinsic Fraud or Fraud committed outside the trial
c. 3. Deprivation of Due Process

As long as the court rendering the decision has the jurisdiction over the person, subject
matter, cause of action, or nature of the action a habeas corpus court cannot review the
findings and conclusion of another court. It is not intended as a substitute of the trial courts
function. It cannot take the place of appeal, certiorari or writ of error. The writ cannot be use
to investigate and consider an error that maybe raise relating to procedure or on the merits. If
the error is relative to procedure then you may try certiorari to annul the order.
The inquiry in the Habeas Corpus Proceeding is address to the question of whether the
proceedings and the assail order is for any reason null and void. The writ is ordinarily granted
where the law provides, so not ordinarily granted where there are adequate remedies in the
regular courts. (so, if appeal is a remedy no habeas corpus)
Cannot be issued as:

a writ of error

reviewing error of law and

Irregularities not involving jurisdiction.

So, where the restrain is under legal process (there is warrant of arrest or order of
commitment and etc.) mere errors and irregularities which do not render the proceedings void
are not ground for relief by habeas corpus. The only question to be resolve is, whether the
custodian has authority to deprive the petitioner his liberty. A writ of habeas corpus which is
regarded as a palladium (not sure cant understand sir) of liberty is a prerogative writ, which
does not issued as a matter of right but based on the sound discretion of the court.
Habeas corpus again going back to Caballes that resorting to the writ is not to inquire into the
criminal act of which the complaint is made. Can you join the petition for habeas corpus and
certiorari?
Answer: In the case of Caballes it is stated that you cannot join the two remedies because
this are governed by different set of rules. It is also violative on the rule on joinder of causes
of action, including joinder of parties. Writ of habeas corpus is not proper remedy to assail
denial of the petitioners motion to dismiss the case, the denial of the court for bail as well as
voluntary inhibition of a judge.
Jurisdiction of probate court.
Primary concern of a Probate court:
19.Administration
20.Liquidation
21.Distribution
There can be no valid partition among heirs until the will has been probated.

Change of Name and or Correction of Entries

To justify petition for Change of Name should establish the ff:
19.Proper and compelling reason
20.Will be prejudice by the use of the true name and official name
Middle name serve to identify the linage or filiation of a person as well as to further
distinguish him from others who may have the same given name and surname.
The Registration in the Civil Registry of the birth of an individual requires that the middle
name be indicated in the certificate.
PNB vs. Sanao Marketing (foreclosure of mortgage)
Writ of possession is actually ancillary to Writ of Execution. To enforce judgment to recover
possession of land, if property is mortgage and there is foreclosure and the property is sold in
a public auction and there is a purchaser. That is the time that the purchaser will file a motion
for the issuance for the writ of possession. The issuance of the writ of possession is a
ministerial duty of the court even if there is an action for annulment of mortgage and even if
there is an action to nullify the mortgage sale.

Angeles vs. Maglaya (next of Kin as Administrator)

Next of Kin as Administrator - those who are entitled under the statute of distribution of the
decedents property. One whose relationship, that he is entitled to the share of estate as
distributed or in short an heir.
Serwela vs. Delantar (not sure sa spelling)
Not only the civil registrar but also all persons that have or claim an interest which would be
affected by the proceeding concerning cancelation or correction of an entry in the civil
register must be made parties thereto. (citing Republic vs. Henerito and Labayo Ro vs.
Republic)

Labayo Ro vs. Republic

X and Y both unmarried have a lovechild but the woman married another child. The man also
married another person. So the woman Mrs. Y married Z. The woman file a correction of entry
to the birth record of her lovechild with X. (nauwaw man xa katong nagpa.rehistro siya so sa
name of father iyang ang name sa iyang boyfriend gibutang X, married, palce of marriage,
date of marriage, kompleto). Here, who shall be made respondents?
Answer : The following:

Local Civil Registrar

NSO

Father of the child

The child

Paternal Grandparent because of hereditary succession

Castillo vs. Gabriel

The purpose of temporary administrator is to preserve the estate until it can pass into the

hand of the person fully authorize administrator known regular administrator for the
protection and benefit of the creditors and the heirs. The appointment of special administrator
is not governed by the rules governing an appointment of regular administrator.

Kiani vs. Bureau of Immigration

Habeas corpus should not be grated in advance of trial, cannot be issued as a writ of error, or
a means of reviewing errors of law and irregularities.

Martinez vs. General Mendoza

Petitioner here filed a petition for the issuance of a writ of Habeas Corpus because his relative
disappeared. SC said it is not a proper remedy if your relative disappears. Under the new Rule
its Writ of Amparo. Grant of relief is not predicated on disappearance of person but on his
illegal detention. Ultimate purpose therefore is to release a person from unlawful restraint.
The purpose is to determine whether he is illegally deprived of his liberty. Habeas Corpus is
not a means of obtaining evidence on the whereabouts of a person of or a means of finding
out who has specifically abducted or cause the disappearance of a certain person (Writ of
Amparo is proper). Proceeding of habeas corpus cannot be used as a substitute of thorough
criminal investigation (court is not to be liken to a prosecutors office)

Sallentis et. Al. vs. Abanillo

Custody of a child. In the absence of a judicial grant of custody to one parent, both parents is
entitled to the custody of the child.

Republic vs. Kho

Name is Kelly Dugmok Kho (hehehe). This is a case of correction of entry (citizenship). Cannot
be said that to change citizenship of Carlitos mother as it appeared in his birth certificate and
the marriage of Carlitos parents and the delete in the certificate in his sibling as well as
change of date of marriage of Carlito and Maribel involves correction of not just clerical errors
rather the changes entails substantial and controversial and entails adversarial proceeding.
Adversary proceeding - one having opposing parties. Contested, as distinguish from x party
proceeding or application. One of which a party seeking relief has given legal warning to other
party and afforded thereafter an opportunity to contest.
Effect of R.A. 1948 (Administrative Correction of First Name and Nickname)
Answer: Leaves rule 108 the correction of Substantial change in the Civil Registry in
appropriate adversarial proceeding. The law makes it possible for correction of clerical errors
or typographical error or change of Nickname. Publication of order and hearing cures the
failure to implead indispensable party.
Habeas corpus in behalf of Lourdes Tamara
Writ of habeas corpus does not lie if it appears that the person alleged to be restrained of his
liberty is in custody of an officer under process, issued by a court or judge unless the court or
judge has no jurisdiction in the process.

When there is no action for expropriation and the case only involve complaint for damages or
just compensation Rule 67 would not apply.

MEPZA vs. Laya

Determination of Just compensation is a Judicial Function. The presidential decree fixed a just
compensation of land. It is struck down by the SC being unconstitutional because the
determination of a just compensation is not a legislative but a judicial function. Even under
the new law, BOT law, the court may still review the compensation fixed by other agencies.
NAPOCOR vs. BongBong
Giagian iyang yuta ug wire man nangayu ug right of way ang NAPOCOR. Giingnan ang tag-iya
na ayaw namu pagguna diha sa ubos sa wire kay makuryentihan mu. The land owner where
deprived their right to use the land. There must be a just compensation similar to
expropriation.
Kilos Bayan vs. Ermita and Judge Gregory Ong
Listed to be a nominee for Supreme Court Judge, other oppose because they allege that Judge
Ong was a Chinese and not a natural born. Now the allege subsequent recognition of its
natural born status by the bureau of immigration and DOJ cannot amend the decision of the
trial court stating that this individual and his mother were naturalize along with his father.
(Immigration and DOJs record shows that they are natural born). There is a petition for
naturalization, what does that need? If mangayu ko ug recognition by a petition it means na
foreigner ka, diba? Between the opinion or record of the DOJ and Immigration and the record f
the court, record of the court prevails. No substantial change in the record of the certificate in
the civil registry can be made without judicial order. Take note, judicial order and substantial
change. Under the law change in the citizenship status is a substantial change (RA 9048). SC
said that respondent Ong has the burden of proving in court his allege ancestral tree as well
as and his citizenship under the timeline of the three constitutions 1935, 1973 and 1987 and
until he cannot prove that he is a natural born he cannot be appointed in the said position
because it will be a violation of the provision of the constitution.

Sec. Of National Defense vs. Manalo

While written of enforce disappearances are separated from the rest of the world behind
secret walls, they are not separated of the constitutional protection of their basic rights. The
constitution is an over arting sky covers all in its protection. The case at bar involves the right
to life, liberty and security in the first petition of the writ of Amparo filed in this court. Now,
when the Manalo brothers was abducted, and when the filed a petition for Habeas Corpus with
the CA, there was no Amparo yet. But later on Amparo was approved so Amparo was
retroactively applied. Can it be done? Yes because there is no vested right in procedure. The
original petition was for prohibition, injunction, and TRO. They also asked for protective
custody order, appointment of Commissioner or Fact Finding and for Access Orders or access
to records and places. While the petition was pending the Rule on Amparo took effect, so the
Manalo brothers through counsel file a manifestation and an omnibus motion to treat their
petition as Amparo. The CA then grants it and treats their petition as Amparo petition and
under the Amparo Rule. According to the brothers, for a about 3 and a half months, they were
detained in Forth Magsaysay. They were detained in a big and unfinished house inside the
compound of a certain Ccapitan. They had a conversation with Gen. Palparan and with Helario
Tecson. Then, they started to plan their escape and in fact they were able to escape. They
allege that they were torture, there testimony were corroborated with Dr. Molino. The finding
shows that the scars born by respondents were consistent with the account for physical
injuries. The Sec. of National defense disputed the abduction and torture of the Manalo
Brothers. The brothers allege that they were abducted, detained and held in Comonicado,
disappeared or under custody of the military. SC believed the story of the Manalo Brothers.
There was a return and it was explain in the return of the writ that the affidavit of Gen.
Palparan and Helario could not be secured in time. The case at bar is the first application of
the Writ of Amparo.

Amparo is derived from the extra ordinary power of the SC and the power to promulgate rules,
and protection of constitutional right. This is an exercise of the expanded power to promulgate
rules to protect peoples right from extra-legal killing and enforced disappearances. Its
coverage is confine to those two instances or the treats thereof. This two term is defined in UN
Convention on Torture.
Extra-legal killing are killing which are committed without due process of law, without legal
safeguard of judicial proceeding
Enforced Disappearances - tended with the following characteristics 1. arrest, detention or
abduction of a person by a government official or organized group or private individual acting
with the direct or indirect acquiescence of the government. 2. Refusal of the state to disclose
the faith or whereabouts of the person concern or refusal to acknowledge the deprivation of
liberty which placed such person outside the protection of law.

Amparo originated in Mexico

Means to protect

Porpuses of Amparo under our Constitution

Amparo libertad (similar to Habeas Corpus)

Amparo Contra Legis (Judicial review of Constitutionality of statutes)

Amparo Casacion (Judicial review of Constitutionality of Judicial decision)

Amparo Administratibo (Judicial review of administrative actions)

Amparo Agrario (Protection of peasants)

This are found in Article 8 section 1 or Grave abuse clause the power of the court to review if
there is grave abuse of discretion amounting to lack or in excess of the jurisdiction of any
branch of the government or instrumentality.
Habeas corpus is not an adequate remedy to solve extra-legal killing and enforced
disappearances. Why? If the person given the writ will say that he is not in our custody. The
court should say that since he disappeared so, look for him, wala na sa habeas corpus daritso
na dismiss. If amparo naa na nga remedy abante. Look for him, gather evidence, arrest
person responsible for the disappearance of the killing. Amparo rules grants interim and
permanent relief, Amparo is hybrid mixed of common law and civil law tradition. The remedy
provides proper and judicial relief as it partakes of a summary proceedings that require only
substantial evidence to make appropriate relief for the petitioner. It served as preventive and
curative laws.
Preventive - it breaks an expectation of impunity in the commission of these offences.
Curative - for it facilitate the subsequent punishment of perpetrator as it inevitable yield to
subsequent investigation and action.
In the case of Gen. Avilino Razon, SC said that extra-legal killing and enforced
disappearances are not criminal offences as define by law. Proof beyond reasonable
doubt is not required, what is required is substantial evidence only.
SC said that the testimonies of the brothers were clear and convincing. It affirmed the factual
findings of the appellate court. Reason for the abduction is that they were suspected NPA. The
participarion of Gen. Palparan was proved as well as the participation of Helario.

Why did the SC granted the writ, when they were already free? SC said that Amparo includes
treat to life, liberty and security. Even if the Manalo Brothers are free, there is a continuing
treat that they will be abducted and tortured again.
Moncopa vs. Enrile he was already release by the military but required to report every
week to the military camp. The SC granted Habeas Corpus because there was undue
restriction of his movement.
As the movement continued to be restricted for fear that people they are named in their
judicial affidavits testified against are still at large, and not been held accountable in any way,
Amparo should be granted. This people are directly connected with the AFP and are thus in
the position to threaten the Manalos right to life, liberty and security. They claim that they are
under threat and once again abducted, keep captive and even killed which constitute a direct
violation to their right to life, liberty and security of person. The right security is a guaranty to
a secured quality of life. Right to security would yield to the exercise of this right

To be secured of freedom from fear. (freedom from fear is the right to be free from
threat)

Bodily and psychological integrity or security

Protection of once life by government
The SC determined that there was a continuing violation of the right of the Manalo brothers
because there was violation of the right from security from freedom of fear to threat in their
life, liberty and security. There is also violation of the protection by the government. Here the
SC also granted the production and inspection orders.

Jason Aquino
Articles of war govern arrest and confinement of military personnel. In habeas corpus does not
make a thorough investigation is not required before charges can be filed against a person
subject to military law. Habeas corpus is not available in the allege military confinement in a
maximum security detention. The conditions of Major Aquinos confinement is not a proper
subject of a writ of habeas corpus because they are govern by their own law the articles of
war.
Federation vs. Libi
Reversion - a proceeding by which the state seeks to the return of land to the public domain
or the improvement thereon through the cancellation of private title erroneously or
fraudulently issued over it. Must be instituted in the name of the state. Intervention by a
private person even a lessee is not allowed. The only party is the government and the holder
of the title.

Rodriquez vs. Villanueva

For habeas corpus, the restrain of liberty should be in the nature of illegal and involuntary
deprivation of freedom.

Vilma Tan vs. Hon. Francisco Gedorio

The order of preference in the administration of the property does not apply to the selection
of a special administrator. The only remedy against the appointment of a special administrator
is certiorari (Rule 65).

Reyes vs. Enriquez

A person must first institute a special proceeding to determine his status as an heir before he
can file an ordinary civil action to nullify certain instrument pertaining to property of the
decedent. A declaration of heirship is improper in an ordinary civil action since the matter is
within the court in a special proceeding.

Kho vs. Rosario

Selection or removal of special administrator is not govern by the rules regarding the removal
of a regular administrator.