Albano Notes SpecPro

Special Proceedings
Rules 73-90
Before settlement of estate, there must
be:
death (actual/physical) - cessation of
life
presumptive death (See Rules in Civil
Code)
no need to file for declaration of
presumptive death
law already presumes death of
decedent
Means of settlement of estate may be:
judicial
extra-judicial
summary (estate does not exceed
10,000php)
affidavit of self-adjudication (only
heir)
Extra-Judicial Settlement- parties can
agree on the partition (with publication)
1. with movable property (money,
jewelry) - bond required to ensure
heirs who have not been given
their shares be given the same
(they can go to the court to
compel payment of obligation)
2. only real property-no need for
bond (estate: continuing lien)
Affidavit of Self-Adjudication
Exception to the rule that heirship is
determined in probate court/special
proceeding and NOT in an independent
civil action: separate civil case where
heirship was determined as an incident
to the action for annulment of the
affidavit (Rebusquillo v. Gualvez)
Court (Judicial) EJS
Petition for Settlement of Estate:
1. place of residence (NOT equivalent
to domicile for purposes of filing
such petition) of D at the time of

death
but:
2. heirs may agree to file before
another venue
-NOT a question of jurisdiction but a
question of venue; can be subject of
an agreement
Jurisdiction (testate/intestate)
-MTC: does not exceed 300/400K
(outside MM/ MM)
-RTC: exceeds amounts above
ex.
No allegation of value of gross estate
Filed before RTC lack of jurisdiction
over
subject
matter
petition:
DISMISSED
(even if you participate in all the
proceedings, there is no estoppel; this is
not like the case of Tijam)
Who may file: (check rules)
heirs
creditors
Special Administrator - appointment
within the sole discretion of the court
-no preference
-for preservation of the estate
-when there is delay in the appointment
of administrator/executor
See Rule 78.
Regular Administrator- with preference
1. surviving souse - because SS is
party to the acquisition of the
properties
Qualifications of administrator:
competence
willingness
bond
ex.
1st marriage
v.
2nd marriage
daughter
v.
SS
Q/Test: who has the greater interest to
protect in the estate? (see rules on
succession)
A:
Daughter in 1st marriage
-+oath
First
Duty:
inventorywhich
is
provisional determination (court will
decide with finality)
See Rule 81 (Within 3 months)
Property under the name of another
person:
See 1448 CC (presumption of trust)
-Remedies:
do not include in inventory (deprivation
of due process)
action for reconveyance (in favor of the
estate); present evidence that it is in the
form of trust; after reconveyance- include
in the inventory
**if donation: collate only and deduct
from share of heir/s
Testate/Intestate
Court - limited
jurisdiction
-no power to determine nature of contact
ex.
Is the property sold or donated? Probate court has no power to determine
the case; this question must be
determined by a court of general
jurisdiction (separate action/proceeding)
-Probate Court: no power to determine
ownership except if parties agree and no
third party is prejudiced
Probate Court (Powers/Remedies)
heirship
-motion for intervention (Art. 172
FC) - show proof of filiation
Lessee not paying - motion
contempt; instead: go to court
collection; action for ejectment
for
for
to sell/mortgage; instead: go to court

and ask for leave to sell; account for the
proceeds
Four Purely Monetary (but can be
contingent) Claims against the Estate:
1. (of creditors) sum of money - does
not survive
2. judgment for sum of money
3. hospital bills
4. funeral expenses
See Sec. 5, Rule 86.
Not included (and one must file an
independent action against A/E):
-Movable property
-damages
Problem:
A-owner. B-buyer in good faith.
A died. C, son of A, appropriated
improvements to the property.
B is then entitled to compensation
(QUASI-CONTRACT)
Quasi contract = implied contract
-must be claimed against the estate
Wrong remedy: complaint against C for
collection
Testate > Intestate
Intestate:
suspend/consolidate
with testate proceedings; dismiss
Sec. 3, Rule 76.
See rules on testimonies of witnesses (in
authentication)
Note: probate-extrinsic validity
Intrinsic validity- separate proceedings
except it there is apparent preterition
A
will
must
be
presented
authenticated in court.
and
Will: admitted: conclusive: best evidence

of its due execution: res judicata
--case of forgery will therefore be
dismissed
conflict: below 7 - mother; unless there is

a compelling reason
if father is also unfit: judicial discretion
(see preference listing)
Rule 91: Escheat

1. intestate: no relative within 5th civil
degree of consanguinity
:no voluntary heir
2. commercial law situation: period of 10
years: no movement in bank account
3. foreigner who acquires land in the
Philippines (disqualified)
(see
exceptions
on
nat.born
Filipinos/dual citizenship)
HC applicable:
1. When father is hindered from meeting
his child and there is no final decision
yet as to who has custody over the child
Note: probate - imprescriptible

-10 years after escheat, voluntary heir
appears: petition for probate!
But apply Sec. 4 (5 years) [JKAD:
apply if testator left no will??? Check]
Compare:
Court: permanent trust: income divided.
-versusTestator:
permanent
trust:
coownership; limited to twenty years only
(10 years if decided by co-owners
themselves).
Rule 102. Habeas Corpus.

Custody of minor
Jurisdiction:
FC (general rule)
concurrent jurisdiction with:
CA
SC
paramount
consideration:
best
interest/welfare of child OVER (and as
an exception to) Rule 39 (immutability of
judgments), such that execution of
judgment may be stopped
Illegitimate child: gen. rule: mother

2. any restraint on liberty
3. incarcerated but no charges
Rule 92. Guardianship
-minor (until becomes of age)
-incompetent
-absentee (until domicile is established)
Rule 103 v. RA 10172

RA 10172:
status
citizenship
example when error is patent and
administrative proceeding before the civil
registrar is allowed:
actual date of birth- December 15, 2015.
Recorded date of birth- December 15,
2025 (future)
Change of surname on the grounds of:
Legit illegit
Married unmarried
BOTH AFFECT STATUS
Must
be
changed
proceedings
in
adversarial
Change of first name before the civil

registrar- can be availed of only once
(see requisites)
May
they
grant
immunity
from
prosecution: YES, even if after P.I., proof
show that the witnesses also committed
the crime
Criminal Procedure:
Check jurisdiction of courts
-exceeds 6 years: RTC
General rule: Venue is jurisdictional
Libel- prision correccional
-RTC has jurisdiction regardless
penalty.
Law confers jurisdiction.
of
General rule: Venue: place of the

commission if the crime: so as not to be
prejudicial
to
the
accused
and
complainant
Exception: SC may order change of venue
to attain the ends of justice
Delicto continuado
Ex.
Lipa to the tip of Luzon
-crime: kidnap
file: ANYWHERE
Can a prosecutor file an Information

after P.I. on the basis of hearsay? YES, if
supported
with
substantial
basis;
probable
cause
is
enough
(as
differentiated from substantial evidence)
Information:
allegations
designation) are CONTROLLING
Ex.
Caption: homicide
Allegations: murder
Conviction: murder
----OK
Variance in the offense charged and

the offense proven-Proven must be necessarily included in
the offense charged
Check Art. 2 of RPC.

Check Migrant Workers Act.
A.
Charged: murder
Proven: homicide
----OK
Illegal recruitment
Venue: where crime was committed or
place of residence of the complainant at
the time of the commission of the crime
B.
Charged: homicide
Proven: murder
----NOT OK
Preliminary Investigatoon
C.
Charged: intentional offense
Proven: imprudence
----OK
COMELEC:
exclusive jurisdiction but:
concurrent jurisdiction with DOJ in P.I.
and in prosecution of electoral offenses
PGMA v. Abalos
Joint panel (Comelec and DOJ): Allowed
COMELEC, DOJ, Ombudsman--
(NOT
D.
Charged: drug pushing, trading, selling
Proven: Possession
----OK (no violation of the constitutional
mandate to be informed of the nature of
the offense charged)
Information
-elements of the crime
-territory
-time (no need for exact time)
-at or about : OK: but must not be far
separated from the time of the
commission of the crime; must not be
prescribed
Cannot be prosecuted without private

complainant:
Seduction,
Acts
of
Lasciviousness, Abduction
-NOT OK: 3,000 days ago
ex.
A.
Man raped daughter. No allegation of
minority: SIMPLE RAPE
-name of the accused: John Doe: OK

-involves formal amendment
Must be alleged:
aggravating circumstances
qualifying circumstances
special circumstances
AMENDMENTS
prior to arraignment: matter of RIGHT
after arraignment, if SUBSTANTIAL
amendment: there must be no prejudice
(as defense today may no longer be
available after amendment)
See Sec. 14, Rule 110.
Even if minority is proven, it cannot be

considered as qualifying circumstance to
convict accused of qualified rape.
Amendment to downgrade or exclude

accused from information-notice to
complainant is required
B.
Brother raped younger sister.
Do you need to allege the relationship?
No, it is implied already. No need to state
related within 2 civil degrees.
Problems:
Numerous checks bounced:
one (1) Information - remedy:
motion to quash
-procedural defect that may be
waived if there was a valid
arraignment and plea, and offense
charged was proven. CONVICTION
may be had pertaining to all
checks that bounced
However, minority/relationship may still

be proven even if not alleged for the
awarding of EXEMPLARY DAMAGES
Filing of criminal action carries filing of

civil action UNLESS theres reservation,
civil a. is filed ahead
Independent civil actions, NOT reserved:
Arts. 32, 33, 34 and 2176 of the Civil
Code
PROPER ACTION: 1 check, 1 crime, 1

Information
Reserved: Civil liability

criminal liability
Adultery: charge both unless there is

pardon
Extinction
of
criminal
liability
extinguishes civil liability except when
civil liability arises out of other sources
of obligations (contracts, quasi-contracts,
quasi-delicts)
Bigamy: charge both
arising
See rules and other exceptions
from
Acquittal:
1. beyond reasonable doubt: as a rule,
extinguishment of criminal liability
extinguishes civil liability
2. no basis upon which civil liability may
exist - exception - one cannot file a
complaint for damages
Prosecution under BP22
-no reservation allowed
-civil action deemed filed with criminal
action
Problem:
Bounced check.
Cases filed for violation of Art. 315 and
BP22.
Can complainant now file a separate civil
action? YES (but if BP22 only, no
separate civil action allowed)
Prejudicial Question
ex.
1.
X stole title, sold property to A.
Y filed a petition for reissuance (granted).
Y sold property to B.
X and Y married. Void for lack of license.

X married A in the meantime.
Y charged X of bigamy.
X filed declaration for nullity of marriage.
CRIMINAL CASE cannot be suspended.
No prejudicial question.
3.
Frustrated parricide - validity
marriage is not prejudicial question
of
4.
-Shell Phils. bought TCCs.
-TCCs were discovered to be included in
a scam.
-Mr. Cruz (of Shell Phils.) was charged
with violation of anti-graft law.
-In the meantime, BIR demanded for
payment and filed a collection for sum of
money.
-SC Ruling: Shell was a buyer in good
faith and for value. The case against Mr.
Cruz should therefore be dismissed
based on res judicata
--- but in this example, the concept
of prejudicial question could also have
been utilized.
Criminal case filed against Y.
Rule 113. Arrest
Y defense: forged signature
Determination of Probable cause:

by prosecutor (administrative) - in
filing Information; hearsay allowed
because court will determine guilt
after trial
Criminal case
suspended.
against
can
be
Civil action: declare other title void.

--If
granted:
criminal
case
dismissed
--If denied: proceed with the case.
Civil case can preempt guilt.
2.
by judge (judicial determination) in arrest

Filing a case - easier than dismissing a
case!
Issuance of warrant of arrest - NOT

ministerial
Check constitutional requirements.
If court is not satisfied that there is
probable cause:
hearing
or prosecutor may be required to
submit additional evidence
If there is still no probable cause, judge
may dismiss the Information
*motion to determine probable cause does not even have to be filed because it
is a duty of the judge!
Warrantless Arrests (See Sec. 5, Rule
113)
in flagrante
hot pursuit
escape of prisoners
citizens arrest
Personal Knowledge:
facts obtained from media
There is personal knowledge in the
following:
1.
Shooting police heard and came
police saw judge there judge escaped
police
arrested
judge:
VALID
warrantless arrest
2.
a group of task force/police in the field
and they have a monitoring team among
them--monitoring
team
saw
the
commission of the offense
-other police officers (who did not
see the commission of the offense)
made the actual arrest of the
accused
-there is still a VALID warrantless arrest
(there is personal knowledge. Knowledge
of monitoring team = knowledge of whole

group)
NO personal knowledge: arrest was made
2 years after the commission of the
crime:
NOT
...HAS
JUST
been
committed
Arrest- can be made any day, any time
Rule 114. Bail
Right -MTC
-RTC not punishable by death,
reclusion
perpetua,
life
imprisonment
Discretion- RTC punishable by death,
reclusion perpetua, life imprisonment
-RTC upon conviction
(Check rules.)
Bail where filed:
When bail is a matter of discretion or
release on recognizance: BEFORE court
where case is pending ONLY
Denied if accused does not appear
Constructive custody: hospital arrest
More than 6 years less than 20 years no bail when check rules
No requirement to be arraigned first
before bail may be granted -- otherwise,
motion to quash right shall be moot
and academic
Bail may be granted for humanitarian

reasons.
Bail: extradition

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What are the different ways to settle an estate?

What are the different ways to settle an estate?

What are the qualifications required to be an administrator of an estate?

What are the qualifications required to be an administrator of an estate?

Special Proceedings

such petition) of D at the time of

to sell/mortgage; instead: go to court

Will: admitted: conclusive: best evidence

conflict: below 7 - mother; unless there is

Rule 91: Escheat

Note: probate - imprescriptible

Rule 102. Habeas Corpus.

Illegitimate child: gen. rule: mother

Rule 103 v. RA 10172

Change of first name before the civil

General rule: Venue: place of the

Can a prosecutor file an Information

Variance in the offense charged and

Check Art. 2 of RPC.

Cannot be prosecuted without private

-NOT OK: 3,000 days ago

-name of the accused: John Doe: OK

Even if minority is proven, it cannot be

Amendment to downgrade or exclude

However, minority/relationship may still

Filing of criminal action carries filing of

PROPER ACTION: 1 check, 1 crime, 1

Reserved: Civil liability

Adultery: charge both unless there is

Bigamy: charge both

See rules and other exceptions

X and Y married. Void for lack of license.

Criminal case filed against Y.

Rule 113. Arrest

Y defense: forged signature

Determination of Probable cause:

Civil action: declare other title void.

by judge (judicial determination) in arrest

Issuance of warrant of arrest - NOT

of monitoring team = knowledge of whole

Bail may be granted for humanitarian

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