Special Proceeding Notes

REMEDIAL LAW REVIEW 2007
SPECIAL PROCEEDING
NOTE: Declaration of absence and death: There is no such thing as declaration of death…it
should be absence leading to the declaration of death.
These are the only things which we will be discussing in Special Proceedings (I will state them in
the order of importance, procedurally speaking):
1. Settlement of Estates- states the meat of special proceedings
2. Adoption- although this is already studied in civil law; it is important because of the new rule
on adoption, not the laws on adoption (R.A. 3552, the Domestic Adoption Act of 1998 as
well as R.A. 8043, the Inter Country Adoption Law of 1995)…not that because that is
substantive. I am talking of the new rule on adoption which took effect sometime in August
2004. I that’s why I think it’s the second most important thing to discuss here.
3. Rule 103 in relation to Rule 108, Change of Name and Correction of Entry..again, because of
the new law. So the possibility of being asked in the BAR is great. (Read also R.A. 9048)
4. Guardianship- practically the same rules of procedure as settlement of estate..only that in
settlement of estate, the subject is dead unlike in guardianship, the subject is still alive.
Physically alive, but mentally dead or a minor. That is the difference between the two.
5. Habeas Corpus- a peculiar kind of special proceeding
6. Escheat
7. Trust (not the trust you buy in Mercury, but relation…trust relation)
All the rest, we will not discuss anymore. Voluntary Dissolution of Corporations; Declaration of
Absence & Death; Hospitalization of Insane Persons…(but, I still advise you to read), even the
Constitution of the Family Home.
If I were an examiner, I would definitely ask in Special Proceedings, Settlement of Estate and
next to Settlement of Estate would be Adoption and next to that would be Habeas Corpus.
Note that even in last year’s BAR examination there was no question on special proceedings
because utmost you get only one question for BAR purposes, one question in Special
Proceedings. Very seldom if you find two questions in Special Proceedings. If, perhaps, the
examiner is teaching special proceedings, then perhaps he will ask you more questions in the
BAR, but ordinarily no…not that I’m demeaning its importance.
My other consolation is that you are well-versed in Special Proceedings, that remains to be seen
starting this afternoon.
Remember, Special Proceedings is different from all other actions, including Special Civil Actions.
If you are asked to define what a Special Proceeding is, A Special Proceeding is an action
other than an ordinary action, a special civil action, or a criminal action. That is a
correct definition by exclusion. To be more specific, Special Proceedings are actions geared
or directed towards the establishment of a right, status, or a particular fact. The
ordinary rules apply here and more so because there are specific provisions that distinguishes it
from special civil actions where it has a special rule. Here, no. It has its own uniqueness. Every
Special Proceeding has its own nuances. For example, because the objective is the
establishment of a right, status, or a particular fact, summons, here, is ordinarily not needed. In
special proceedings, there is no defendant, so there is no need for summons. Summons, as we
have studied is the way by which a court acquires jurisdiction over the person of the defendant
(Rule 14). The only exception is, of course, Habeas Corpus Proceedings wherein you
name a respondent but the respondent here is different from a defendant because
summons is not necessary.
Q: So, how does a court acquire jurisdiction over the case?

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE
MENDOZA and SARAH JANE CASAUAY
UNAUTHORIZED USE AND REPRODUCTION OF THIS MATERIAL IS NOT ALLOWED.
A: There is no need for the court to acquire jurisdiction over the person of the defendant
because there is no defendant. Therefore, the court should acquire jurisdiction of the case, over
the subject matter. How? Because it is an action in rem, ordinarily publication. So that is the
uniqueness of Special Proceedings. Publication is the means by which the court acquires
jurisdiction over the subject matter. It is ordinarily not initiated by Complaint, but by Petition.
NOTE: Again, unlike other actions, as a general rule, Special Proceedings do not prescribe. There
might be limitations of such periods in some instances, but ordinarily, they do not prescribe.
Q: What are the Special Proceedings?

A: Name them according to the Rules starting from Rule 73-90 Settlement of Estate; Rule 91
Escheat; Rules 92-97 General Guardians & Guardianship; Rule 98 Trustees; Rules 99-100 are no
longer applied because they are deemed repealed by the new rules on adoption, including
Rescission & Custody of Children, these Rules are no longer applied because of the adoption of
the Child & Youth Welfare Code.
SETTLEMENT OF ESTATE OF DECEASED PERSONS

When you speak of Settlement of Estate, immediately what comes to your mind is that someone
died (and that’s the beauty in law…men live forever in law…they continue in their estate…There
are those who want someone dead because of his estate. there are also those who want
somebody alive because he has no estate…but actually, even if you are a pauper or a millionaire,
you always have an estate. So you live forever through your estate. That estate must be
settled).
Q: There are two ways to Settle an Estate:

A: Extrajudicial Settlement and Judicial Settlement of Estate. In, extrajudicial settlement, the
rules speak of settlement through Affidavit of Self Adjudication and the other way to settle it is by
extrajudicial partition. Those are the extrajudicial manner of settling the estate. Extrajudicial
settlement proper is by agreement of the parties.. extrajudicial settlement is distinct from
partition. When you go to judicial settlement, you have the first which is Summary Settlement
Sec. 2, Rule 74, which is very practical and then judicial partition under Rule 61, that is a mode
of settlement and then you have the conventional mode of settlement of estate. We can even
add a fourth kind, whish is also a mode of settlement of estate…Escheat proceedings
under Rule 91.
The conventional mode settlement is either testate or intestate. The testate can either be with
the will annexed or without the will annexed. The intestate, of course, there is no will. But both
testate and intestate may also be done either in the Philippines or outside the Philippines.
Q: What are the requirements for an Affidavit of Self Adjudication?

A:
1. There is a will
2. No debts;
3. Only one heir.
Q: Suppose Mr. X, who died, was known to everyone to have one child but later on, it was
found out that he had other illegitimate children. What will happen to the affidavit of self
adjudication? Is there any finality?
A: NO. Even if the properties have already been distributed, they aer still subject to claims.
Q: How do you go about in making an Affidavit of Self Adjudication?

A: The word suggests already that it is an affidavit…so, how do you formulate an affidavit? You
simply state in your affidavit that your father or your mother died; and that he/she left the
following properties; and that you are the only heir of your parent; and that the estate are such
and such, valued accordingly; and that they are found there (location of property)..you simply
submit that to the Register of Deeds and the Register of Deeds will act on it only after you
comply with the requirement of publication and if there are personal properties belonging to the
estate, put up a bond according to the value or upon the discretion of the register of Deeds.
(extrajudicial ha…the court has no participation whatsoever here) You simply submit to the
Register of Deeds, the Register of Deeds acts on it and if there is already publication, once a
week for 3 consecutive weeks in a newspaper of general circulation, the Register of Deeds will
simply transfer the title in favor of the affiant.
The other mode of extrajudicial settlement is extrajudicial partition...that is not under Rule 69
because under Rule 69 is judicial partition…here, the parties agreed, but take note that there is
also no will and there are also no debts and even if there are debts, there is sufficient money to
answer for those debts which are reserved…the money is reserved to answer for debts…so you
can partition among and between yourselves these properties, provided all of you are of age. If
one is a minor, he is duly represented…ordinarily, you ask the court for the appointment of a
guardian ad litem. This form of extrajudicial settlement is similar to Partition…there is really no
distinguishing feature between extrajudicial partition and extrajudicial settlement. Jurisprudence
tells us that any act between and among persons that would lead to the division of property is a
form of partition or settlement…any act that would terminate indivision would be division.
In affidavit of self adjudication, of course you have to support your allegations with documentary
evidence (like for example, that you are the only heir, this can be proven through your birth
certificate and also the marriage contract and the properties you wish to adjudicate unto yourself
should be established by Titles or muniments of titles).
Judicial Settlement refers to Conventional: Rules 73-90. Summary Settlement of Estate

is very impractical because up to now the value of the estate is still P10T (P10,000) but you will
note that there is still a requirement for publication (so if you have it published once a week for 3
consecutive weeks, ubos na yung ten thousand mo).
RULE 91 ESCHEAT
Is another form of Judicial Settlement, Escheat tells us that if a person dies without a will,
without an heir, and no debts, then the Office of the Solicitor General will file, under the directive
of the President of the Philippines, will file an Escheat Proceeding. But if it happens that during
the pendency of the proceeding, a will pops up, then the proceeding is discontinued. If an heir
pops up, then the proceeding may be suspended and establish your right…otherwise, after the
hearing, the property will go to the government. This escheat proceeding is founded on the
theory that all lands belong to the State…the Regalian Doctrine that you studied under LTD
(Land Titles & Deeds)… all lands belong to the State and he who claims otherwise has the
burden of proof so after the escheat proceedings, the property belonging to the estate will go to
the city or municipality where it is found.
So if the proceeding is in Manila, but the property escheated is in Calamba, the property
escheated located in Calamba will go to the City of Calamba and not to the City of Manila. The
same thing with personal property…where it may be found and the Rule is very specific that the
property will be spent for charitable purposes, for educational purposes, so on and so forth. So
that is Rule 91.
Under Rule 91, Sec.5 is another form of escheat because that was given in the BAR 5 years ago
(sa dami daming pwedeng ibigay sa Special Proceedings, yun lang ang binigay). This speaks of
REVERSION. In other words, the property was acquired by an individual in violation of the
Constitution. Under the Constitution, any person, even foreigners who were former Filipinos, can
now acquire property in the Philippines and that was given more strength because of the Dual
Citizenship Law.
Q: Which court has jurisdiction over Petitions for Settlement of Estate?

A: Under RA 7691, inferior courts now have jurisdiction over settlement of estate, whether
testate or intestate. So it is not under the provision which speaks of actions involving title to or
any interest in property but it is a direct provision of the law that settlement of estate, whether
testate or intestate, may be taken cognizance of by inferior courts, depending on the gross value
(hindi assessed). Remember, there is another provision under BP 129, the basis of which is the
“assessed value”…dito, gross value of the estate and the location is determinative somehow of
jurisdiction because if it is outside Metro Manila, less that P300T and within Metro Manila,
P400T…so suppletory character lang yun.
The old books speak of Courts of First Instance (RTC), exclusively…hindi na yun.
RULE 73 VENUE AND PROCESS.
Q: Is settlement of estate limited to the estate of Filipino Citizen?

A: No.
Q: If an American was in the Philippines because he was a member of the Armed Forces, who
joined the Balikatan Forces in Mindanao and he died here, where should the settlement of estate
be done? Is it the place of one’s death which is determinative of the venue? Suppose one had 5
residences because he had 5 wives?
A: This is a very confusing provision because the title is “Venue & Process” but the word ‘venue’
is never mentioned. On the other hand, the word jurisdiction is mentioned three (3) times.
Q: So, is the last residence of the decedent a matter of jurisdiction or a matter of venue?
A: It is a matter of venue so you cannot question it.
Q: Suppose Mr. X, a Filipino citizen residing in Cebu City died at St. Luke’s Hospital, Quezon City,
where should his estate be settled?
A: In Cebu because it is the place of the final residence of the decedent.
Q: Suppose the heirs filed a petition for settlement of the estate in Quezon City, is the venue
properly laid?
A: No.
Q: So, what happens to the case?

A: The settlement must continue because venue is not jurisdictional.
Let me emphasize to you that in civil cases, including special proceedings, venue is not
jurisdictional, unlike in criminal cases, venue is jurisdictional and from what we have learned
under Rule 4 of the Rules of Court, venue may be waived.
So, if there is no opposition, there is no question as to the petition filed by anybody for the
settlement of the estate of Mr. X who is a resident of Cebu, the petition is filed in Quezon City,
the issue is not jurisdiction but only of venue. But considering that there was no opposition, then
the petition for settlement must continue.
Sec. 1 there does not speak of jurisdiction. Jurisdiction here is conferred by law and
RA 7691 confers that depending on the value of the gross estate, which can either be
the MTC or the RTC.
Q: What is Residence?
(You must have come across the leading case, Cuenco, et. al vs. Cuenco, cited in your book (it
has to cited in your book) because that is a very leading case, also the case of Fule, et al. vs.
CA, these are the cases about venue and jurisdiction…emphasizes these cases cited in all books.
Eusebio vs. Eusebio, that is also cited in your book… These are questions about the conflicting
rules on venue and jurisdiction.)
A: It is now settled (because of there cases) that residence is only a matter of venue. It is not a
matter of jurisdiction.
This case of Cuenco is about Senator Cuenco. That Cuenco Street in Quezin City, parallel to
España or Quezon Blvd. He was a resident of Cebu but also had a house in Qezon City because
he was a member the Senate. When he died in Quezon City, his residence was in Cebu. When
he died, he was already a widower at the time, so he had two families. The first family with his
first wife, and the second family with his second wife. His second wife, staying with him in
Quezon City, filed a petition for the settlement of his estate in the RTC (Then CFI) of Q.C. After
the 9- day novena for his demise, the heirs of Senator Cuenco, filed a petition for settlement of
his estate in Cebu. This reached the SC. The issue was in fact wrong: Which court has
jurisdiction? Mali. It is not a matter of jurisdiction but only of venue. But the greater error here
is not the error of the petitioners but the error of the Court. Why? Because the Q.C. Court on its
own (motu propio) said “we are going to give way to the court in Cebu to settle the estate.”
That cannot be done because under the Rule, the court which first takes cognizance of a petition
for settlement of estate, takes it to the exclusion of all other courts. And so, which court has
jurisdiction? Both courts have jurisdiction actually, but because of the Rule, since it was first filed
with the Q.C. Court, it was already taken cognizance of by said court in Q.C. to the exclusion of
all other courts, including the Cebu Court. That is why if ever the court cedes its authority in
favor of the Cebu Court, that is wrong. It should have been correct if anybody interested in the
petition files a motion to dismiss on the ground of improper venue but there was none.
In one of the Bar Exams using Cuenco vs. Cuenco, way back in 1992, this was treated by the
examiner saying that a motion to dismiss was filed with the Cebu Court and the Cebu Court
granted it. Wrong. Why? Because the Cebu court did not acquire jurisdiction because the
petition was first filed in Q. C. and there can be no dual jurisdiction here because the Rule says:
the court acquires jurisdiction to the exclusion of all other courts.
This case was followed by the case of Eusebio vs. Eusebio and finally settled in the case of Fule
vs. CA, a 1975 case. Philippine reports pa ito. If you want to read it, you can find it in the
Philippine Reports. But Fule, you find it already in the SCRA. Is that clear? Take note of that
doctrine because that is very basic in Settlement of Estate. Sec. 1 of the Rule there does not
speak of jurisdiction but only of venue. In Fule it has been settled that the residence is
the actual place of habitation.
So that if a person has two (well nagayon, hindi lang two, marami, apat, lima, anim..tingnan nyo
si Pacquiao, hindi na malaman kung saan sya resident, Manila, Gensan.. hindi na malaman.. But
if only Pacquiao studied law, he would not have run for any position in the first place… had he
studied law, he would not be a millionaire in the first place.) Fule settled that residence is the
place of actual habitation or it may not be the place of actual habitation, provided there is animus
manendi (intent to remain) and animus revertendi (intent to return). Kaya pag yung isang lalaki,
mayron legal na asawa, mayron pang kerida, mayron pang kabit, at mayron ding scholar, in
different houses, the residence is that of the original. Why? Because there is animus manendi
and animus revertendi. In all other residences, there is only animus amare (intent to love)… so
that is regarding this Section 1.
Let us go now regarding these two: It can be testate or intestate. You know testate, in other
words, there is a will. Intestate, there is no will. The distinction, regarding these two will give
you also the distinction between an executor and an administrator.
Q: What is the distinction between an executor and an administrator?

A: The executor is the one appointed by the decedent as embodied in the will. The
administrator is the one appointed by the court if there in no will, or if there is a will but does not
designate an executor, or even if there is an executor, the executor refuses to accept the trust or
fails to put up a bond… These are the requirements: He is either not qualified; he fails to accept
the trust; or he fails to put up a bond so an administrator may be appointed.
Q: An administrator is of two kinds, what are they?

A: Rule 80
1. Special Administrator ( also of two kinds): With the will or Without a will annexed;
2. Regular Administrator
Q: In what instances may the court appoint a special administrator?

A:
1. Delay in granting of Letters of Administration;
2. Sec. 8, Rule 86: The executor is a claimant of the estate he represents.
Q: So, when you go to testate, why is it here that they are of two kinds: with the will or without
a will annexed? How would you explain that? Kailan nangyayari ito? If you are a custodian of a
will of the decedent, what is your obligation?
A: To deliver to the court the will within 20 days after the death. (Sec. 2, Rule 75)
Q: Are you bound to file a petition?

A: No. The obligation there is only to deliver the will. But if you do file a petition, because you
are the custodian of the will, you must have an interest in the estate. You may either be the
named administrator, a devisee, a legatee, or a creditor, and with more reason, if you are an
heir, you have an interest. If you are in the custody of the will, and you filed a petition for
settlement of estate, you have to attach the will in your petition.. But if you are not in custody of
the will and you are interested in the settlement of the estate, you simply file a petition without
the will annexed.
In many instances, I was telling you that settlement of estate is the best example of multiple
appeals, diba? Because in the settlement of estate there are several stages.
Q: If it is a testate proceeding, what is the first stage?

A: Probate of a will.
Under this lesson on a probate of a will, there is this general proposition that the probate court
(the court probating a will) either the MTC or the RTC, is a court of limited jurisdiction.
Q: What does it mean when the Rule says that a probate court is a court of limited jurisdiction?
A: A probate court can only rule on the due execution of the will and not as to its intrinsic
validity.
This is what you have to understand. Even lawyers do not realize this. Sabi nila probate court
yan so you cannot question, you cannot raise the issue of ownership. The probate court ceases
to be a probate court upon allowance or disallowance of a will but it remains to be a court no
longer of limited jurisdiction. That is why I was emphasizing on the petition as settlement of
estate and not as a petition for the probate of a will. Why? Once a will has been probated,
that’s the end of it? No. It is only the first stage in the testate proceedings. So when the Rule
says that the probate court is a court of limited jurisdiction, only as far as the probate of a will is
concerned. Pagkatapos nun, the court is no longer of limited jurisdiction because it has to go…
appointment of the administrator or executor, approval of the accounting, approval of the
inventory, then payment of debts..papaano limited pa yun? No longer.
So as a probate court, the court is limited to the issue of authenticity and due execution, but you
do not transfer courts after the will has been probated, after the will has been allowed or
disallowed which is a final resolution which is a final order or resolution of the court which is
appealable. But the appeal here is by record on appeal because it is multiple appeal. The court
now is no longer of limited jurisdiction because it is no longer a probate court.
Q: Ano ba ang end of settlement of estate?

A: Distribution under Rule 90. The first stage of settlement of estate, if it is a testate proceeding
is the probate of the will. That is where the court has limited jurisdiction.
Q: Why is this so? Why does this issue pop up here?

A: This is because during probate of the will, in the very petition, the jurisdictional requirement is
that you have to state what constitutes the estate and the value of the estate. Jurisdictional
facts.
Q: If an oppositor enters the picture, the oppositor says mali yan because what constitutes the
estate are these properties, but what is stated in the petition do not belong to the estate, now,
can the court decide the ownership of those properties?
A: No. That is where the limited jurisdiction comes into the picture. It cannot because the court
has only the duty of discussing whether the will has been duly executed so this is only as to the
extrinsic validity of a will. The intrinsic will come much, much later, the disposition of the will.
The issue of ownership is outside the jurisdiction of the probate court. But if the probate court
cannot continue without deciding the issue of ownership, the issue of ownership being incidental
(intimately related to the issue of probate) to the probate of the will, must be decided, but the
decision here is not final. It is only provisional and it can be contested in other proceedings and
the rule on res judicata will not apply.
In the case of Balaraw which was assigned to you, that was also the issue involved.
In the beginning, there is no defendant. The equivalent of a defendant in a probate proceeding

is the oppositor. The oppositor is not only opposing the probate of the will, but also settlement
of the estate, for one reason or another.
The objective of the settlement of the estate is the distribution of the estate among the heirs or
those entitled thereto, although not heirs (those persons named in the will).
Once the court allows or disallows a will, as the case may be, the nature of the court as a
probate court ceases. Therefore, the issue of limited jurisdiction no longer applies. Limited
jurisdiction applies only to the authenticity and due execution of the will.
Q: Once the will is allowed, What does it mean?

A: Rule 76: Allowance of the Will
If Mr. A is accused of a crime of falsification of documents by forging the signature allegedly of a

testator and during the pendency of the criminal action, the will allegedly forged by Mr. A was
probated and allowed, the criminal case should be dismissed because the probate of the court is
final and if not appealed becomes conclusive. Wala na yung forgery because the probate of a
will only avows the fact that the signature there is authentic; that there was due execution of the
will. The case against A for falsification should be dismissed. Suppose he has been convicted,
he shall be released. Supposing he is not released, your remedy is to file a petition for habeas
corpus because the basis .for restraining his liberty no longer exists. (So kita nyo ang
correlations.)
We are talking here of allowance of the will within the Philippines.
Q: Suppose a will was executed and allowed (probated) outside the Philippines, what happens?
A: Go to the next Rule, Rule 77: Allowance of Will proved Outside of the Philippines and
Administration of Estate thereunder.
Q: An American citizen residing in California died in California, his will was probated in the county
state of San Bernardino. That will has been allowed in the U.S. Should that will be also allowed
in the Philippines?
A: No.
Q: What should anyone interested in the allowance of the will in the Philippines do because the
deceased had property in the Philippines?
A: It should be re-probated here and the venue is in the proper court of any province where the
decedent had property.
This rule shall be read in conjunction with Sec. 48, Rule 39: Foreign Judgment.
Q: What are you supposed to establish or prove in the re-probate of a will?

A:
1. The due execution of the will in accordance with the foreign law;
2. That the testator had his domicile in the foreign country and not in the Philippines;
3. That the will has been admitted to probate in such country;
4. The fat that the foreign tribunal is a probate court;
5. That the laws of a foreign country on procedure and allowance of wills.
6. The fact of death (jurisdictional fact) of the testator in a place within the territorial
jurisdiction of the court.
These are mandatory requirements. These must all be established in the Philippine courts. That
is how to re-probate a will which has already been allowed. Thereafter, the court should appoint
an administrator. The foreign allowance of a will leads to the appointment of a domiciliary
administrator. Once it is probated in the Philippines, the court appoints an ancillary
administrator.
Q: Who may petition for the allowance of the will or who may oppose thereto?
A: Anybody who has an interest in the estate or in the disposition of the estate of the decedent
Q: What are the qualifications for one to be appointed as administrator of the estate?
A: Any competent person may serve as executor or administrator. He is incompetent if:
1. a minor
2. a non-resident
3. one who in the opinion of the court is unfit to exercise the duties of the trust by reason of :
a. drunkenness
b. improvidence
c. want of understanding and integrity
d. conviction for an offense involving moral turpitude.
Q: If a man cannot sleep without drinking at least 3 beers before he goes to sleep, can he be
appointed as administrator?
A: Yes. He is not a drunkard.
Q: Suppose in the very will, the testator named an executor of his estate, may the court appoint
another one other than the one named in the will?
A: Yes, when such person:
1. refuses to accept the trust ( ang gusto nya kasi is he would accept the trust if it is
candy flavored);
2. fails to give a bond; and
3. is incompetent.
Q: In the course of the administratorship, when one has already be appointed, can he be
removed? On what grounds?
A: Yes. Rule 82: Revocation of Administration, Death, Resignation and Removal of Executor or
Administrator.
Sec. 2. Grounds:
1. neglect to render accounts within 1 year or when the court directs;
2. neglect to settle the estate according to the Rules;
3. neglect to perform an order or judgment of the court or a duty expressly provided by these
rule;
4. absconding; or
5. insanity or incapability or unsuitability to discharge the trust.
Q: If a special administrator is appointed because the regular administrator has a claim against
the estate, what happens to the regular administrator?
A: The regular administrator is not removed by the appointment of the special administrator
because the regular administrator has a claim under Sec. 8 of Rule 86. The special administrator
only has a specific function which is only to work on the claim of the regular administrator.
The executor of an executor cannot be appointed as executor of the principal testator.
Example: Richard is the testator. He appointed Piolo as his executor. Later on Piolo died. In
the will of Piolo, he appointed Sam as his executor. Sam cannot be the executor of the estate of
Richard.
Reason: An executor takes charge of the estate. If you are an executor and you died and you
have an own estate and the executor of your own estate will now execute the estate of your
testator that appointed you, there will be conflict of interest (Magkakaroon ng sama sama yung
estate. Magkaka halo halo). To avoid possible corruption in the administration of one’s estate.
Q: What are the duties of a special administrator?

A: Sec. 2, Rule 80:
1. possession and charge of the properties;
2. preserve the properties;
3. commence and maintain a suit for the estate;
4. sell only:
a. perishable property; and
b. those ordered by the court
5. pay debts only as may be ordered by the court.
Q: Can he encumber the property of the estate through lease?

A: It depends. If the lease is not for more than one (1) year, he can because it would fall under
acts of administration. Beyond that, it is already an act of disposition
Q: If the court appoints Mr. X as special administrator, is the order final and appealable?
A: No. It is only interlocutory and unappealable because if you appeal the appointment of a
special administrator, there will be no end to the settlement of the estate.
The special administrator is likewise required to put up a bond.
Q: Suppose the testator in naming an executor of his estate specifically states there that he
should serve as administrator without a bond. Can the court nonetheless require a bond?
A: Yes. The court has a very wide discretion.
Once a regular administrator is appointed, the continuation of the duties and functions of a
special administrator will now reside in the special administrator. But always remember that if it
is an act of disposition or conveyance, which cannot be done by an appointed executor or
administrator without permission of the court. You always file a motion for leave of court to sell
a specific property and this is part of your accounting one year after.

Accounting is one of the principal duties of an administrator. His first duty is to prepare an
inventory within three (3) months from appointment and within one (1) year, prepare an
accounting of his administratorship and the bond that he put up is precisely to answer for the
misadministration .
RULE 83 INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF FAMILY
Q: Who are entitled to allowance during proceedings?

A:
1. legitimate surviving spouse; and
2. children of the decedent (legitimate & illegitimate children)
Relate to Art. 194, Family Code: Children, even if 18 years of age are still entitled to support
from the estate.
Read Ruiz Case

RULE 86 CLAIMS AGAINST ESTATE
Q: What may be claimed against the estate?

A:
1. Contractual money claims;
2. funeral expenses;
3. expenses for the last illness; and
4. judgments for money.
Q: Suppose they are not due yet, can they be filed against the estate?
A: Yes.
Q: Suppose they are not yet due?

A: Yes…whether due, not yet due, or contingent, you can file against the estate.
Q: When do you file it?

A: Not more than 12 months nor less than 6 months after the date of first publication.
Otherwise it is deemed waived. (STATUTE OF NON- CLAIMS)
STATUTE OF LIMITATIONS: prescriptive period in the Civil Code.
FCC vs Santibanez
Q: What were the issues assigned as errors before the CA?

A: Issues
1. Whether or not estoppel applies
2. Whether or not the extra judicial partition bet among the heirs were valid
3. Whether or not it is necessary for a partition to be approved by the probate court
4. Whether or not the respondent could be held jointly liable with Santibanez.
Testate Proceeding.
Provisions on a holographic will. It wasn’t clearly stated in this case.
The parties entered into an agreement.
Q. Can prospective heirs whether under the testate or intestate enter into a partition over the
properties belonging to the estate?
A. There can be no partition until and unless the will is allowed or probated.
Q. Was it really a partition?

A: According to the SC they may act to put an end in any indivision is considered and deemed to
be a partition.
There can be no partition in a testate proceeding before the will is allowed.
Q: What is the rationale behind that?

A: Because the SC said if it is allowed then you are divesting the court of its jurisdiction over the
property partition. Bec it is partition, it amounts to distribution. Distribution is the final stage in a
settlement proceeding and there will be no distribution of the estate until and unless all debts has
been paid. The court looks into it as an act of divesting of its jurisdiction.
Q: Can principle of estoppel be applied?

A: The SC said the principle of estoppel will not apply because the basis which is the extra
judicial partition is in fact void, a void act of declaration or omission of a party cannot be used as
evidence against the party. If the act is null and void, estoppel will not arise therefrom.
Q: Are the heirs liable?

A: The SC said he did not even established the fact that you are the proper party in interest
because Union Bank did not show any evidence to prove that you are really the affiny.
Settlement of Estate
Sec 7. Mortgage debt due from estate
Remedy
1. Claim against the estate
- after all the debts has been paid; upon distribution
2. Foreclose the mortgage - judicial

- deficiency judgement – by motion only in the same action
3. Extrajudicial foreclosure
- you solely rely on his mortgage, you don’t get any deficiency judgement
Q: Sec 9 How to file a claim

A: In form of a simple application form
1. Deliver the claim to the clerk of court
2. Serve a copy on the executor or administrator

3. if the claim is due, it must be supported by affidavit stating the amount due and the fact
that there has been no effects.
4. if the claim is not due or contingent, it must be accompanied by affidavit stating the
particulars
Sec 10 Answer of executor or administrator

1. Executor may file answer within 15 days from the service of claim
2. Answer must set forth claims which decedent has against claimant or else it will be barred
forever.
Q. What is a statute of non-claims?

A. A claim against the estate shall be filed within a period of not less than 6 mos and not more
than 12mos from the date of first publication.
Q. What is the relationship bet a statute of non-claims and limitations?

A. A statute of non claims supersedes a statute of limitations. The statute of limitation is a period
provided for in the Civil Code where actions prescribe. An ordinary prescriptive period in a civil
case is 10 years from accrual.
Q: Mr. A took the bus, Philippine Rabbit, owned by Mr. B to Baguio. He never reached his
destination because the bus fell over a ravine on January 5, 1990. That is the date of the accrual
of the cause of action (Jan. 5, 1990). Can Mr. A file a case against Mr. B on March 2001?
A: No because the action is barred by the statute of limitations.
Q: Suppose Mr. B died in 1995. (yung owner ng bus, Mr. B, not Mr. Bean) What should A do?
A: File a claim against the estate within a period of not less than 6 mos. and not more than
12mos from the date of first publication. So, the presumption here is that there is a settlement
of the estate of B. Otherwise the statute of non-claims will not apply.
Q: Suppose notice was given on March 1, 1995. So you have 6 months and it was published
March 20, you have not less than 6 months from March 20, nor more than up to the 19 th of
March 1996. Can you file it in 1998?
A: No because it is beyond the statute of non-claims. Even if it is within the statute of
limitations, you can no longer file it because it is beyond the statute of non-claims.
That is the meaning of the “statute of non-claims supersedes the statute of limitations.”
On the other hand, if B died in 1999 of December, you have only have up to January of 2000
because the action has already prescribed, the ordinary action.
The statute of non-claims prevails over the statute of limitations. However, the statute of non-
claims will not apply if there is no settlement proceedings.

RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS
We have limited claims against the estate to the following:

1. Contractual money claims;
2. funeral expenses;
3. expenses for the last illness; and
4. judgments for money.
These are considered as contractual money claims under Rule 86. When you go to Rule 87, you
will note that you cannot file a claim against the estate if it is claimable under Rule 86. So
contractual money claims, hindi. That is why in Rule 87, you are also limited to the following
claims or actions:
1. Recovery of real or personal property;
2. Recovery of interest or lien therein;
3. Judgment arising from injuries
Q: In actions by and against executors and administrators, where will the executor or
administrator get his money to satisfy your prayer in your action? Hindi ba from the estate? So
why not against the estate, bakit against the executor or administrator?
A: Rule 86 is not an action… tapos na dyan yung action, it is already through. In 87, it is a
separate and distinct action, so that if it is a complaint, you always file it against the executor or
administrator. Pero dito, tapos na yan. Hence, dahil tapos na, it is urgent… urgency of the
subject matter… so the presumption in 86, that there must an estate proceeding, whether testate
or intestate… without that , you cannot file any claim. Suppose wala, ano gagawin mo? Iinitiate
the testate or intestate proceeding so that you file a claim. It is not an independent action here.
But in 87, it is an independent action. Meron bang testate or intestate proceeding? Not
necessarily. You might say, bakit executor, administrator? Kaya nga ‘or’ because when you say
executor, meron yan. Kung walang executor, administrator. You mean to say that there can be
no administrator without an estate proceeding? No. There can be an administrator even if there
is no estate proceeding because you can even undertake extrajudicial settlement of the estate.
In extrajudicial settlement there can be an agreement by and between the parties as to the
administrator of the estate. The estate does not have a separate and distinct personality. It is
only an entity authorized by law in special cases.
As a general rule, the estate cannot sue and be sued. It can only be sued in certain instances. It
cannot be sued because under Sec.1, Rule 3 (Who may be parties), it is only an entity authorized
by law. That is why you file against the executor or administrator. Remember that an executor
or administrator is a natural person. Iba yun sa Guardian ha? A guardian can be a juridical
person.. only guardianship over the property of the ward. In guardianship over the ward, the
guardian cannot be an artificial being or corporation.
Q: Compare Sec. 7, Rule 86 ( Mortgage debt due from estate) with Sec. 5, Rule 87 (Mortgage
due estate may be foreclosed).
A: The parties under Sec. 7, Rule 86 are the estate of the decedent and the creditor. The
creditors may have affirmative remedies as to their claims against the decedent such as going
after his estate. The estate is the debtor, the mortgagor (‘mortgage due from the estate’). As
compared to Sec. 5, Rule 87, the estate is the mortgagee.
Q: Is the estate, under Sec. 5, Rule 87 allowed the alternative remedies in Sec 7, Rule 86?
A: NO. He is only allowed one remedy which is foreclosure.

After all these claims have been settled, all debts have been paid, you go now to distribution.
This is the last stage. But in the distribution of the estate, what Rule should be followed? First,
before distribution, there shall be payment of debts.
Q: What are these debts? There are only 5 specific kinds of debts.
A:
1. Debts of the decedent;
2. Funeral expenses;
3. Expenses for administration;
4. Allowance for the widow; and
5. Taxes.
Q: Under the rules on preference of credit, taxes are given priority. Is there an
exception? What did you Labor Law teacher teach you about that?
A: PNB vs. NLRC case (March 1990): In case of liquidation of the assets of the corporation, even
taxes give way to unpaid salaries and wages. But in all other instances, palaging ang gobyerno
ang uunahin. Sabi nga sa mga Reviewers, pag wala ka na daw maisasagot sa question sa
taxation, taxation is the lifeblood of the government.
Pag hindi mo mabayaran avail of Rule 89: Sales, Mortgages, and other Encumbrances of the
Property of the Deceased. The fundamental reason for sales, mortgages, and other
encumbrances is to pay off debts.
Q: The estate is worth one million (P1M). After payment of debts, all that had been paid
amounted to P500T. How much is left for distribution?
A: Only P500T.
Q: If there are 5 compulsory heirs, devisees and legatees, A, B, C, D, E, and under the will, A
should receive P500T; B- P100T; C- P100T; D and E- P50T each and what remains is only P500T,
how will you distribute the estate?
A: Distribute the estate by ratio and proportion.
Q: Suppose the asset was P10M gross value and the obligation was only P1M. You have P900T
left but the will says to distribute only P500T; P100T; P100T and P50T to the last two, may sobra
ka, (that goes to the pocket of the lawyer?) it should be distributed in accordance with intestate
succession but also pro rata. A: Remember we are talking here of the remainder, wala nang
babayaran. We have also studied the Rules on contingent claims, under Sec. 4, Rule 74
( Liability of Distributees and Etate), the two-year lien.
Q: Can the estate be distributed even before payment of debts?

A: General Rule: No.
Exception: Assets may be distributed even prior to payment of debts provided the distributee first
gives a bond.
The remedy is to give a bond. If the asset to be distributed is quite important, such as real
property, then you give the asset.

RULE 92 GUARDIANSHIP
Madali lang itong guardianship. You know why? Because the Rules are practically the same.
The fundamental difference is that in guardianship, the subject is still alive. In settlement of
estate, the subject matter is already dead.
Three Kinds of Guardians:

1. Judicial guardian – that appointed by the court in a judicial proceeding for legal guardianship
2. Legal guardian— guardian by operation of law; not just appointed by any court. (ex.:
parents of minor children)
3. Guardian ad litem- that which is appointed by the court not necessarily in a guardianship
proceeding, because this guardian ad litem is only on a temporary basis with a specific duty
to perform.
Q: Which court has jurisdiction over a petition for guardianship?

A: Exclusively and originally cognizable by the Family Court (RTC specifically designated as a
Family Court because of RA 8369 ). There is no inferior court here.
However, in settlement of estate, jurisdiction may be lodged in inferior courts depending on the
gross value of the estate.
The venue is the residence of the ward. If the ward has no residence and the
guardianship application is over the property of the ward, the venue is where the
property is situated/ located.
Take note that the venue here is the residence of the ward as distinguished from the venue in
adoption, which is the residence of the adopter. Bakit? Because in adoption, the result is that
the adoptee will become the child of the adopter for all legal intents and purposes. But here, it is
the guardian that goes to the ward as the relation here is only of a temporary character.
You file a guardianship proceeding only on 2 grounds:

1. Minority; and
2. Incompetency.
The term “incompetent” here is different from that in settlement of estate. Here,
“incompetent” refers to:
Sec. 2. Meaning of the word “incompetent”. Incompetent includes:
1. Those suffering from the penalty of civil interdiction (a penalty attached to conviction);
2. Hospitalized lepers;
3. Prodigals (one who is a spendthrift; wastes money or property on things without reserving
any for himself and before you know it, he is not only a prodigal son but also a grasa man.);
4. Deaf and Dumb unable to read and write;
5. Those of unsound mind although they have lucid intervals;
6. Persons not of unsound mind but by reason of age, disease, weak mind, and other similar
causes, cannot, without outside aid, take care of themselves or manage their property.
A minor, under the age of 18, can be the subject of guardianship.
Case of Evangelista: The petition for guardianship was granted by the court and Caniza was
appointed as the guardian of Evangelista. As a guardian, remember the rights, the guardian can
sue and be sued, can collect debts, can manage the properties of the ward. So one of his
actions here was to ask the Estradas to vacate the premises owned by the ward. Judgment was
rendered in favor of plaintiff, but on appeal, it was reversed and on appeal again from the order
of reversal, it was sustained. That is why it went up to the Supreme Court. But pending the
appeal with the CA, the ward died. This is a case for ejectment. The issue here is that
considering that there is no more guardianship because death terminates guardianship, hence,
the case must be dismissed because the party appellant is not the proper party-in-interest. The
SC said No. Even if death terminates guardianship, in this particular case, it is contrary to the
principle of equity of justice if we have to start all over again. The case is already with us, so
remand of the case to the lower court would be a waste of time and more importantly, they
found from the record that Caniza was one of the heirs of the ward. Hence, there is still a party-
in-interest even if there is no settlement of the estate. Ang importante ay pag guardian ka tapos
heir ka din, there is no need for the settlement of the estate.
NOTE: Remember that you find that also in Sec. 16 of Rule 3: Substitution of Parties (“without a
need of appointing an administrator or executor of the estate in the substitution of parties.”).
That is the doctrine laid down in this case.
Q: Who can initiate a petition for guardianship?

A: Anybody who has interest in the person of or property of the ward. If you cannot establish
any interest in the person of or in the property of the ward, you cannot file a petition for
guardianship.
Buyena vs. Ledesma: In this case, they were able to establish interest. They were both
single and they were living together.
You have to establish interest. The Rule says, friends, relatives, or any person who has interest.
Q: What is the procedure?

A: File a petition with a court of competent jurisdiction in the proper venue. And the court will
issue an order setting the case for hearing. If there are oppositors, then they can file their
opposition. Remember, this is a special proceeding and jurisdiction is always acquired through
publication. After trial, there will be decision either allowing or disallowing guardianship. In
other word, appointing a guardian or not appointing a guardian.
The guardian now enters into the guardianship after he has filed the necessary bond. The duties
and responsibilities of a guardian are similar to that of an executor or administrator .
Q: Can he sell the properties of his ward?

A: Yes. Even without permission from the court if the property involved is personal property.
But, if it is real property, just like, an executor or administrator, he has to get permission from
the court. Only with the permission of the court will the sale of real property be considered a
valid sale. It is not only permission of the court which is required, but also notice to all interested
parties. In guardianship, the absence of notice, even with permission of the court, still renders
the sale void.
Q: In what instances may guardianship be terminated?

A: Death also terminates guardianship, but the general rule is that if the ground for the
appointment of the guardian ceases, then guardianship ceases as well.. If the minor is already of
age (remember, even the minor himself can ask for guardianship). This is an exception
regarding lack of a minor’s legal personality to sue. If the ground is based on incompetency and
it is established that the ward is already competent, or that he was insane, but now, he is no
longer insane; a petition for termination of guardianship may be filed.
Q: Should the legal guardian file guardianship proceedings over the person and property of their
minor children?
A: Yes if the property of the war, which is their own children, is worth more than P50T. If they
sell the property of their ward, even if they are the legal guardians, the sale of the property is
void.
Q: Distinction between a guardian and a trustee

A: The distinction between a guardian and a trustee is that the latter has the legal title while the
guardian has no legal title of the property. So that the trustee can negotiate and encumber the
property under trust. Although the same trustee may either be a trustee and a beneficiary at the
same time.
A trust relationship can either be express if there is a trust agreement between parties or implied
if it is by operation of law. Examples of trust by operation of law is when parents die without a
will and then some children are still minors, whoever is the guardian of the minor holds the
property for and in behalf of the minors in trust. So that you will note that the guardian here,
being the trustee, may not be a party to a written trust agreement but he cannot dispose the
minor's property without consent of the court for the reason that he is only in trust for the ces
qui trust. Even in the absence of a written contract, there is a trust relationship by operation of
law.
ADOPTION
Background of adoption: The rule on adoption has been amended several times and even the
rules on procedure, which you find in 99 and 100 are no longer applicable. They have been
repealed expressly. As early as the mid-70s when the Child and Youth Welfare Code (PD 603)
was enacted, it already amended the rules on adoption. PD 603 was also amended by the Family
Code. But all these are no longer applicable in toto because of the new laws on adoption which
should be the subject matter of today's section. The laws applicable now is not even the Civil
Code per se, but rather it should be RA 8562, the Domestic Adoption Law of 1998 and the Inter
Country Adoption Law of 1995 (RA 8043). These are the substantive law governing adoption. Our
concern is the rule on adoption.
AM 02-6-02SC, dated July 2002, is the new rule on Adoption.
Q: Who may be adopted only?

A: General Rule: one who is legally available for adoption.
Q: Who are legally available for adoption?

A: Those who are voluntarily committed and/or involuntarily committed.
The parents or guardians of these persons have voluntarily surrendered their parental or
guardianship authority to the DSWD.
Q: Who are those involuntarily committed?

A: Judicially or administratively deprived. Minors, whose parents or guardians are administratively
or judicially deprived of their authority over these persons. They are involuntarily committed. And
within that concept, you have the abandoned, the dependents, and neglected children.
Q: What is a child-placement agency as distinguished from a child-caring agency?

A: The distinction is in the services that they cater. Pag placement, it is to provide
comprehensive child welfare services including, but not limited to, receiving applications for
adoption, evaluating the prospective adoptive parents, and preparing the adoption home study
while pag caring, it is like Hospicio de San Jose, which provides 24 hour residential care services
for abandoned, orphaned, neglected or voluntarily committed therein.
Q: Which court has jurisdiction over a petition for adoption?

A: It is the Family Court. RTC is not even a totally and perfectly correct answer because it may
be another RTC.
Q: What is the venue?

A: The place where the adoptive parents reside.
NOTE: Here, the meaning of residence is the actual habituation of the petitioner.
We are only going to study 2 fundamental questions on adoption. Who may be adopted and who
may adopt. Once you perfect that we can go to another lesson.
Q: Who may adopt? Or who is a qualified prospective adopter?

A:
1. Any Filipino Citizen
2. Any alien
3. Guardian, with respect to the ward. And remember, there is no qualification as to the
citizenship of the guardian. The only qualification is that the guardianship must have ended
AND his accountability as a guardian has been completed. Yun lang ang qualification.
Q: Now let's go to the Filipino, what are the qualifications?

A:
1. of legal age;
2. he must possess full civil capacity and legal rights;
3. of good moral character;
4. has not been convicted of any crime involving moral turpitude;
5. emotionally and psychologically capable of caring or children;
6. financially capable or economically capable;
7. at least 16 years older than the adoptee.
NOTE: When one is of legal age, a minor cannot adopt. Because he must be capable of
unquestionable demonstration. Under the Rules on Evidence, the court can either take judicial
notice of that because he is capable of unquestionable demonstration.
Q: What does possession of full civil capacity and legal rights mean?
A: Give me a person who is not possessed of full civil capacity and legal right. A convicted person
which has received an additional penalty of civil interdiction.
Q: How about a deaf-mute? Is a deaf-mute in possession of full civil capacity?

A: Under the rules, a deaf-mute who is not able to read and write is not in possession of full civil
capacity, thus it is incapable of contracting obligations.
Q: A person caught urinating, and charged of urinating in public. Is this not moral turpitude?
A: Urinating or defecating in public is an offense and not a crime. The requirement speaks of one
who has not been convicted of a crime, which is punishable by the Revised Penal Code.
Q: But if you are charged of Rape, can you not adopt?

A: No. Because it speaks of conviction. You must first be convicted.
But if you are convicted of homicide, recent jurisprudence say, you can still adopt because it is
not a crime of moral turpitude. So tatlo, there must be a crime, there must be conviction,
and it must be of moral turpitude.
Q: How do you establish your emotional and psychological capacity?

A: Clearances to show that you have not been convicted from a crime of moral turpitude.
Clearances from RTC, police, PNP, barangay, MTC, etc. And these clearances will ought to show
that you are of good moral character, that you are emotionally and psychologically capacitated,
subject of course to presentation of evidence and cross-examination. Wala namang summons sa
adoption.
Q: How do you establish your financial capacity?

A: Certificate of employment, income tax returns.
Q: When we speak of age gap, the miracle number is 16, why? What is sought to be avoided by
this age gap?
A: To avoid temptation. You look at the history of the Civil Code of the Philippines which was
adopted from the Civil Code of Spain. And being of European origin, there is that also a 16 year
old gap. Malalaking bulas ang mga european and they seek adoption as a means of having
mistresses.
Q: Who may be adopted?

A: General Rule: one who is legally available for adoption.
Q: Who are legally available for adoption?

A: There are 7. So that minority is not an absolute requirement to be adopted. Relationship is not
even a disqualification on the part of the adoptee. because they can be adopted.
What I would like to emphasize is the doctrine laid down in Cang v CA, which is that consent
must be given either by the prospective adoptee, if he is at least 10 years old, or parents, or
guardians, or the DSWD. Without that consent, as laid down in this doctrine, adoption is null and
void.
So you can adopt even your own child. You can even adopt your own grandchildren just like
what Juan Ponce Enrile did to his grandchildren.
Q: Another person who may adopt is a foreigner, and he may adopt under the domestic adoption
law or the inter-country adoption law. What are the requirements?
A: So all the requirements applied to a Filipino prospective adopter are also required of an alien.
Therefore, he must be of legal age, in possession of full civil capacity and legal rights, of good
moral character, not convicted of a crime involving moral turpitude, etc.

Over and above this, an alien is also required:
1. he must have continuously resided in the Philippines 3 years prior to the filing of the
adoption;
2. he must have a certification from his consular official that he is in possession of full civil
capacity;
3. his country of origin must have diplomatic relations with our country;
4. his country of origin must allow the adoptee to become a citizen of his country;
5. that his country of origin allows the adoptee to enter the country of origin of the adopter;
Q: Where should he file this petition for adoption? (Section 28)

A:
1. It 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;
2. It may be filed directly with the Inter-Country Adoption Board.
When an alien files a petition before the Inter-Country Adoption Board, the alien will come here
in the Philippines and will bring the adoptee and the social worker back to his country of origin
for the trial custody of 6 months will happen there.
This is purposely done by the law, because there is an objective of discouragement. To

discourage the adoption of Filipino citizens by aliens. In fact that is only allowed if the
prospective adoptee cannot be adopted by a Filipino. Filipinos have the preference of adopting.
Q: What constitutes the allegations?

A:
1. Jurisdictional facts;
2. legal capacity of the prospective adopter and the adoptee;
In the case of Republic v. Hernandez (1997), the SC said that the petition for adoption does
not carry with it the change of name of the adoptee. With the present rules on adoption
specifically under Section 10, this doctrine does not apply anymore. This is a good bar question.
So you can now have joinder of causes of action in special proceedings, in effect. Dati wala. So
you can now join in your prayer, asking for a change of name and for adoption. Let me
emphasize, it is a change of name and not a change of surname because change of surname is
an automatic effect of adoption.
Q: After you have filed a petition for adoption, what happens now?
A: There would be a case study, where it is immediately assigned to a social worker. Under
present dispensation in our jurisdiction, every family courts is now provided with a social worker.
Because a petition for adoption is exclusively cognizable by the Family Courts.
Q: For what purpose is this?

A: One is the home study report and the other is the case study report. The home study report
is about assigning to the social worker of the respective adoptee and the case study report is
about the prospective adopter.
The general objective of adoption, why it is allowed under the rules, is that which leads to the
benefit of the adoptee.
Under the rules, it is mandatory that the petitioner must appear and testify. Similar to an
annulment of marriage case, there can be no stipulation of facts here or confessions of

judgment. There must be actual presentation of evidence here. And basic requirement here is the
consent given by the adoptee, the parents or the guardians of the adoptee.
Q: After the hearing, may the court render judgment now?

A: The judgment referred to here is not similar to the judgment that we have ordinarily because
the judgment here is always subject to the issuance of another decree of adoption. Ang finality
dito is not the finality of the judgment but rather the finality of the decree of adoption.
Q: When is the decree of adoption issued?

A: After complying with the 6 month trial custody. Again, this is another undertaking of the
DSWD. Tignan niyo, the home or case study report is before the decision is rendered, but before
a decree of adoption is rendered kailangan pa ng isa pang report which is the trial custody
report.
Q: For how long?

A: General Rule: 6 months.
Exception: when it is in the best interest of the child; the petition during the hearing is that the
prospective adoptee is already living with the adopter.
Q: After the decree of adoption has become final and executory, what is the next?
A: There should be a new birth certificate issued. Remember that one of the rights of a party in
litigation is the right to a speedy and public trial. But this adoption proceeding is exceptional
because even the documents there are public records but are not open to the public, not
anybody can get it including the new birth certificate issued to the adopter.
NOTE: But take note that under the rule on rescission of adoption, the issued certificate of the
civil registrar's office is cancelled in favor of the old birth certificate, which means that the old
birth certificate is not deleted, but remains in the record. And this is the reason of the
confidential nature of the proceedings.
Q: What is adoption?
A: It is a judicial proceeding whereby the relationship of paternity and filiation is established. AS
simple as that.
According to a noted professor, when a decree of adoption is final and executory, there is the
total and absolute cut of any legal relationship between the natural parent and the child.
Under the new rules, the adopter cannot rescind the adoption but only disinherit the adopted
child. An adopted child has all the rights of a legitimate child.

HABEAS CORPUS
Q: What is the constitutional provision about habeas corpus?
A: The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion
or when public safety requires it. It is not the writ which is suspended but the privilege.
Q: What is a writ of habeas corpus?

A: It is an order or judicial process directed to the person to show cause for the reason of
detention.
Q: By that definition, it is directed in two conditions, which are:

A:
1. illegal detention or confinement;
2. illegal withholding of custody from a person entitled thereto.
It is directed to someone who commits an act of either illegal detention or confinement or illegal
withholding of custody from a person entitled thereto.
Q: What is an example of the first instance?

A: Violation of the constitution, whereby a person is deprived or restrained of his liberty or not
afforded a right to due process, or an order from an authority which has no jurisdiction.
Q: What is an example of the second instance?

A: Malimit itong mangyari within the family, where the mother or father fights over for the
custody of the child.
Q: If a woman leaves the parental home in order to stay with her paramour, can the parents file
a petition for a writ of habeas corpus?
A: It depends. If the child is a minor, a writ of habeas corpus is available. But when a child
comes of age, the writ of habeas corpus is not available.
Q: Suppose a judge renders a judgment penalizing a person with imprisonment of 6 years 1

month and 1 day, and then the convict has already stayed for more than that period of time, is
the writ available?
A: Yes, the writ is available because that is the immediate remedy. Although you can also file
certiorari but it is no longer immediate here. Because what do you intend to annul there? wala.
Q: What is a preliminary citation as compared to the writ of habeas corpus or the peremptory
writ?
A: Preliminary citation is a citation to the government officer having the person in his custody to
show cause why the writ of habeas corpus should not issue (detention not patently illegal).
Preemptory writ is issued when the cause of the detention appears to be patently illegal and the
non-compliance wherewith is punishable.
In preliminary citation, it is not mandatory where the court may dispense with the issuance of the
preliminary citation and go directly to the issuance of the writ of habeas corpus.
A person in custody of another, restraining the liberty of another, must give a return upon receipt
of the writ of habeas corpus. That return can either be prima facie evidence of the detention or a
plea of the facts stated therein, in the return.
Q: Ano ang ibig sabihin nito? (Section 13)

A: The content of the return as to whether it is a plea only or prima facie evidence of detention,
they distinguish as to who has burden of proof. If the return contains prima facie evidence of the
detention, then petitioner has the burden of proof to show that the detention is illegal. But if it is
only a plea of the facts stated in the return, then the one who has the custody of the person has
the burden of proof.
So a writ of habeas corpus is directed to a jail warden. When the jail warden prepares the return,
which is brought to the court, he says that this person is under a commitment order, merong
desisyon ang korte that this one should be imprisoned because he was denied bail although is
appeal is still pending. That is prima facie evidence of the cause of his detention, and when that
is submitted to the court, the applicant has the burden to establish that that commitment order is
illegal.
But if the return, it says well i am taking custody of this child because i am the father, that is not
a commitment order or judicial order, that is coming from a private person. Therefore, that is not
prima facie evidence but only a plea of the facts stated therein. Hence, the father will show that
he has the right to take custody of the child and not anymore the petitioner.

RULE 103 (CHANGE OF NAME) and 108 (CORRECTION OF ENTRIES) are still applicable.
They have only been amended but are not yet repealed by RA 9048. Therefore, an affected
person can avail of Rule 103 or Rule 108 without RA 9048 being violated.
RA 9048 is known as administrative procedure of changing one's name or nick name or

administrative procedure of correcting an entry in a document. Therefore, being administrative, it
is extrajudicial. In case of Rules 103 and 108, they are judicial processes.
Q: Which courts have jurisdiction over Rules 103 and 108?

A: RTC, specifically the Family Courts.
Q: Venue?
A: Residence in case of change of name. Where the registry is located in case of correction of
entries.
Q: What are the amendments to these two rules brought about by RA 9048?
A: Remember that RA 9048 speaks only of names and nickname but when Rule 103 says change
of name, it does not only refer to name or nick name but also to family name. So if you want to
change the family name you cannot avail of RA 9048.
Q: What are the grounds?

A:
The same grounds. Under RA 9048, the same grounds:
1. That the name is ridiculous. If your name is Lucifer, you can have it changed under Rule 103
or RA 9048.
2. Tainted with dishonor. If your name is Osama Bin Laden, you can have it changed.
3. Your name is very difficult to pronounce or write. If your name is
supercalifragilisticexpialidocious.
4. That you are known by the name in the community.
5. To avoid confusion.
6. To avoid foreign alienage.
So the same grounds either under Rule 103 or RA 9048.
Under Rule 108, you have to correct entries in a document. And the enumerated public
documents where entries have had are as many as possible. Those which are in the custody of
the register of deeds. If the change are substantial, you cannot avail RA 9048 but Rule 108. You
can only avail of RA 9048 if the change sought is clerical or typographical in nature.
Q: Name is Maria Cecilia when in her birth certificate it shows as Ma. Cecilia, is that typographical
or clerical error?
A: There is no error there. What you have to seek is change of name because Ma is different
from Maria Cecilia. There is no error there.
You cannot avail of RA 9048 if it will change sex, status, or nationality. If there is error you can
change it under Rule 108 and not RA 9048.
Q: Suppose you do it under Rule 108, and it was denied. Where do you appeal or what is the
remedy?
A: The remedy is to go to the Civil Registrar General who is the Manager of the National Census
Administrative Office. It is not an appeal but a motion for reconsideration. If the civil registrar
affirms the denial, you file a PETITION under Rule 108.
Q: Going back to RA 9048, A was born in Quezon City, he now resides in Baguio City. Should he
go to Quezon City in order to file under RA 9048?
A: No, he has to file it in Baguio and under the rules the two civil registrar, that of Baguio and
Quezon city will coordinate. It also can be done abroad, by filing the same with the Philippine
Consulate, it is a matter of communication.
NOTE: Appeal in RA 9048 is with the Civil Registrar General. Although it is not really an appeal, it
is a motion for reconsideration. Appeal under Rule 103 or 108 is ordinary/ regular appeal. In RA
9048, it is not really an appeal, wala naman kasi appeal sa administrative remedies, you use the
word appeal for facilitation of better understanding. But that is not an appeal, motion for
reconsideration siguro.


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REMEDIAL LAW REVIEW 2007

Q: So, how does a court acquire jurisdiction over the case?

Q: What are the Special Proceedings?

SETTLEMENT OF ESTATE OF DECEASED PERSONS

Q: There are two ways to Settle an Estate:

Q: What are the requirements for an Affidavit of Self Adjudication?

Q: How do you go about in making an Affidavit of Self Adjudication?

Judicial Settlement refers to Conventional: Rules 73-90. Summary Settlement of Estate

Q: Which court has jurisdiction over Petitions for Settlement of Estate?

RULE 73 VENUE AND PROCESS.

Q: Is settlement of estate limited to the estate of Filipino Citizen?

Q: So, what happens to the case?

Q: What is the distinction between an executor and an administrator?

Q: An administrator is of two kinds, what are they?

Q: In what instances may the court appoint a special administrator?

Q: Are you bound to file a petition?

Q: If it is a testate proceeding, what is the first stage?

Q: Ano ba ang end of settlement of estate?

Q: Why is this so? Why does this issue pop up here?

In the beginning, there is no defendant. The equivalent of a defendant in a probate proceeding

Q: Once the will is allowed, What does it mean?

If Mr. A is accused of a crime of falsification of documents by forging the signature allegedly of a

We are talking here of allowance of the will within the Philippines.

Q: What are you supposed to establish or prove in the re-probate of a will?

The executor of an executor cannot be appointed as executor of the principal testator.

Q: What are the duties of a special administrator?

Q: Can he encumber the property of the estate through lease?

The special administrator is likewise required to put up a bond.

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

RULE 83 INVENTORY AND APPRAISAL PROVISION FOR SUPPORT OF FAMILY

Q: Who are entitled to allowance during proceedings?

Read Ruiz Case

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

RULE 86 CLAIMS AGAINST ESTATE

Q: What may be claimed against the estate?

Q: Suppose they are not yet due?

Q: When do you file it?

STATUTE OF LIMITATIONS: prescriptive period in the Civil Code.

Q: What were the issues assigned as errors before the CA?

Q. Was it really a partition?

Q: What is the rationale behind that?

Q: Can principle of estoppel be applied?

Q: Are the heirs liable?

2. Foreclose the mortgage - judicial

Q: Sec 9 How to file a claim

2. Serve a copy on the executor or administrator

Sec 10 Answer of executor or administrator

Q. What is a statute of non-claims?

Q. What is the relationship bet a statute of non-claims and limitations?

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

We have limited claims against the estate to the following:

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

Q: Can the estate be distributed even before payment of debts?

ANGELO NIÑO SANTOS, CRESENTE BERNADOS, IRVIN BAUTISTA, IVY MINETTE

Three Kinds of Guardians:

Q: Which court has jurisdiction over a petition for guardianship?

You file a guardianship proceeding only on 2 grounds: