Regalado Special Proceedings

II.
SPECIAL P R O C E E D I N G S
A. THE JUDICIARY REORGANIZATION ACT

O F 1980
1. Before B.P Big. 129 became operationally effective,

R . A . 296, otherwise known as the Judiciary Act of 1948,
vested the then Courts of First Instance with original
jurisdiction in all matters of probate for both testate and
intestate estates, appointment of guardians, trustees and
receivers, all actions for annulment of marriage, and
in all such special cases and proceedings as were not
otherwise provided for (Sec. 44).
Subsequently, R . A . 644 amended Sec. 86 of the
Judiciary Act to the effect that the then justices of the peace
and judges of municipal courts, now the metropolitan,
municipal and municipal circuit trial courts, shall have
concurrent jurisdiction with the aforesaid Courts of First
Instance in the appointment of guardians and in adoption
cases.
Also, R . A . 643 amended Sec. 90 of the Judiciary Act
to confer on said justices of the peace and judges of the
then municipal courts of chartered cities concurrent
jurisdiction with the Courts of First Instance to appoint
guardians and guardians ad litem for incapacitated persons.
Under Sec. 1, Rule 92, the Courts of First Instance
and the inferior courts had concurrent jurisdiction in
guardianship proceedings over property valued at not
more than P10,000.
2. With the changes in the procedural governance
under B.P. Big. 129, said concurrent jurisdiction in
guardianship and adoption cases has been eliminated and
exclusive jurisdiction thereover is now vested in the
Regional T r i a l Courts. However, in cases within its
jurisdiction, a metropolitan, municipal, or municipal circuit
1
REMEDIAL LAW COMPENDIUM
trial court can appoint a guardian ad litem for an

incapacitated party therein in proper cases and where said
incompetent is not represented by his parents or judicial
guardian.
3. On the other hand, B.P. Big. 129 has conferred
exclusive jurisdiction on the so-called inferior courts,
i.e., the metropolitan, municipal, or municipal circuit
trial courts, in all matters of probate, both testate and
intestate, where the gross value of the estate does not
exceed P20.000 (Sec. 19[4], Sec. 33[1]). Parenthetically,
this has resulted in investing said inferior courts with
exclusive jurisdiction in summary settlement of estates of
small v a l u e (Sec. 2, Rule 74) since t h e m a x i m u m
jurisdictional limit on the gross estate involved in said
proceeding is PIO.OOO. However, such summary settlement
shall be conducted in accordance w i t h t h e regular
procedure, and not under the rule on summary procedure,
in inferior courts.
expanded the jurisdiction of lower courts from B.P. Blg. 129
As explained in Volume One of this work, Sec. 33 of
B.P. Big. 129 was amended by R . A . 7691, effective April 15,
1994, by increasing the exclusive original jurisdiction of
the so-called inferior courts in probate proceedings,
testate or intestate, where the value of the estate does
not exceed PIOO.OOO or, in M e t r o Manila, where such
estate does not exceed P200.000, exclusive of interest,
damages of whatever kind, attorney's fees, litigation
expenses and costs.
4. Under the Judiciary Act, the writ of habeas corpus

may be issued by the Supreme Court (Sec. 17), the Court
of Appeals (Sec. 30) and the Courts of First Instance
(Sec. 44[h]). However, in the absence of the District
Judge from the province, municipal judges in the capitals
of the provinces and city judges in chartered cities could
hear petitions for a writ of habeas corpus (Sec. 88).
Under B.P Big. 129, in the absence of all the Regional
Trial Judges in a province or city, special jurisdiction is
2
THE JUDICIARY REORGANIZATION ACT
granted to any metropolitan, municipal, or municipal

circuit trial judge to hear and decide petitions for a writ of
habeas corpus in the province or city where the Regional
Trial Judges sit (Sec. 35).
5. R . A . 5967, Sec. 3 ( a ) and ( b ) , conferred on the

then City Courts concurrent jurisdiction with the Courts
of First Instance over petitions for change of names of
naturalized citizens and for correction or cancellation of
typographical errors in entries in the City Civil Registry
Said law is deemed to have been repealed by B.R Big. 129
(Lee, et al. vs. Presiding Judge, etc., et al., G.R. No. 68786
Nov. 10, 1986).
6. As stated in the earlier part of this work, the former

Juvenile and Domestic Relations Courts were integrated
by B . R B i g . 129 i n t o t h e R e g i o n a l T r i a l Courts as
c o m p o n e n t b r a n c h e s t h e r e o f . A n u m b e r of special
proceedings under the Rules were under the jurisdiction
of said juvenile and domestic relations courts pursuant to
the acts or decrees creating the same. B.P Big. 129 provides
that whenever a Regional Trial Court takes cognizance of
juvenile and domestic relations cases, the special rules of
procedure applicable under present laws for such cases shall
continue to be applied, unless subsequently amended by
law or by rules of court (Sec. 24).
7. On Oct. 28, 1997, Congress enacted R.A. 8369, the

"Family Courts Act of 1997," establishing a Family Court
in every province or city, with the proviso that if the city is
the capital of the province, the Family Court shall be
established in the municipality with the highest population.
Said court shall have exclusive original jurisdiction to hear
and decide, inter alia, petitions for guardianship, custody
of children, habeas corpus in relation to the latter, and
adoption of children and the revocation thereof (Sec. 5).
Decisions and orders of the court shall be appealable in
the same manner and subject to the same conditions as
appeals from the ordinary Regional Trial Court (Sec. 14).
3
REMEDIAL LAW COMPENDIUM
8. In special proceedings, publication of judicial

orders and notices is often required for jurisdictional
purposes. P D . 1079, effective January 28, 1977, revised
and consolidated all laws and decrees regulating the
publication of notices of auction sales in extrajudicial
foreclosure of real estate mortgage, judicial notices in sale
on execution of real p r o p e r t i e s , notices in special
proceedings, court orders, summonses, and all similar
announcements arising from litigations and required by
law to be published in a newspaper or periodical of
general circulation (see Basa vs. Mercado, 61 Phil. 632).
B. THE REVISED RULES OF COURT
R U L E 72
SUBJECT MATTER AND APPLICABILITY

OF GENERAL RULES
Section 1. Subject matter of special proceedings. —

Rules of special p r o c e e d i n g s a r e p r o v i d e d for in the
f o l l o w i n g cases:
( a ) Settlement of estate of deceased persons;
( b ) Escheat;
( c ) G u a r d i a n s h i p a n d custody of children;
( d ) Trustees;
(e) Adoption;
( f ) Rescission a n d revocation of adoption;
( g ) Hospitalization of insane persons;
( h ) Habeas corpus;
( i ) C h a n g e o f name;
( j ) V o l u n t a r y dissolution of corporations;
( k ) Judicial a p p r o v a l of voluntary recognition
of m i n o r n a t u r a l children;
(1) Constitution of family home;
( m ) D e c l a r a t i o n of absence and death;
( n ) Cancellation or correction of entries in the
civil registry.
NOTES
1. As distinguished from actions, a special proceeding

is an application to establish the status or right of
a party or a particular fact (Hogan vs. Eislizemus, 42
Phil. 830), or any remedy other than an ordinary suit in
a court of justice (Sec. 3[c], Rule 1). Unlike actions,
a special proceeding is generally commenced by application,
petition or special form of pleading as may be provided for
5
RULE 72 REMEDIAL LAW COMPENDIUM SEC. 2
by the particular rule or law.

2. Although paragraph (c) refers only to "children,"
guardianship is not limited to children but extends to
"incompetents" (Sees. 1 and 2, Rule 92). Proceedings for
the custody of a child whose parents are separated may be
an independent proceeding or an incident in any other
proceeding (Sec. 6, Rule 99), but that for a vagrant or
abused child is an independent proceeding in i t s e l f
(Sec. 7, Rule 99).
3. While paragraph ( m ) speaks of declaration of

"absence and death," there can not be a special proceeding
instituted just to obtain a declaration of death. Actual or
presumptive death can not be the subject of a judicial
pronouncement or declaration if it is the only question or
matter involved in a case or upon which a competent
court has to pass (Re Nicolai Szartraw, 46 O.G., 1st Supp.,
243; Lukban vs. Republic, 52 O.G. 1441). Such declara-
tion may be made only in connection with the proceedings
for the settlement of the estate of the alleged decedent.
Thus, Rule 107 is limited only to a declaration of absence.
However, as explained in N o t e 3 under Sec. 8 of
Rule 107, the Family Code authorizes a summary proceed-
ing for the declaration of the presumptive death of the
absentee spouse to enable the spouse present to contract a
subsequent marriage, under the circumstances and con-
ditions stated therein.
Sec. 2. Applicability of rules of civil actions. — In

the absence of special provisions, the rules p r o v i d e d
for in o r d i n a r y actions shall b e , as f a r as practi-
cable, applicable to special p r o c e e d i n g s .
NOTES
1. There are certain specific provisions for special

proceedings as, for instance, the rules on the allegations
6
RULE 72 SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
required to be contained in the pleadings, venue and service

of pleadings and processes.
2. T h e distinction between final and interlocutory

orders in civil actions for purposes of determining the
issue of appealability is not strictly applicable to orders
issued in special proceedings. Rule 109 specifies the orders
from which appeals may be taken and some of those orders,
from t h e s t a n d p o i n t o f o r d i n a r y c i v i l a c t i o n s , are
interlocutory.
3. R u l e 33 r e g a r d i n g j u d g m e n t on d e m u r r e r to
evidence is applicable to special proceedings (Matute us.
CA, et al., L-26751, Jan. 31, 1969).
I. SETTLEMENT OF ESTATES
OF DECEASED PERSONS
R U L E 73
VENUE AND PROCESS
Section 1. Where estate of deceased persons settled.

— If the decedent is an inhabitant of the Philippines
at the time of his death, w h e t h e r a citizen or an
alien, his will shall be p r o v e d , or letters of admin-
istration granted, and his estate settled, in the C o u r t
of First Instance in the province in w h i c h he resides
at the time of his death, a n d if he is an i n h a b i t a n t of
a foreign country, the C o u r t of First Instance of any
p r o v i n c e i n w h i c h h e h a d estate. T h e c o u r t first
taking cognizance of the settlement of the estate of
a decedent, shall exercise j u r i s d i c t i o n to the
e x c l u s i o n o f all o t h e r c o u r t s . T h e j u r i s d i c t i o n
assumed by a court, so f a r as it d e p e n d s on the place
of residence of the decedent, or of the location of
his e s t a t e , s h a l l n o t b e c o n t e s t e d i n a s u i t o r
proceeding, except in an a p p e a l f r o m that court, in
the original case, or w h e n the w a n t of j u r i s d i c t i o n
a p p e a r s on the r e c o r d .
Sec. 2. Where estate settled upon dissolution of

marriage. — W h e n the m a r r i a g e is dissolved by the
death of the h u s b a n d or w i f e , the c o m m u n i t y
p r o p e r t y shall b e inventoried, a d m i n i s t e r e d , a n d
liquidated, and the debts thereof paid, in the testate
or intestate proceedings of the deceased spouse. If
both spouses have died, the conjugal p a r t n e r s h i p
shall be liquidated in the testate or intestate
proceedings of either.
RULE 73 V E N U E A N D PROCESS SECS. 1-2
NOTES
1. T h e residence of the decedent at the time of his

death is determinative of the venue of the proceeding.
If he was a resident ("inhabitant") of the Philippines,
venue is laid exclusively in the province of his residence,
the jurisdiction being vested in the Court of First Instance
t h e r e o f (Eusebio vs. Eusebio, et al., 100 Phil. 593).
" R e s i d e n c e " means his personal, actual or physical
habitation, his actual residence or place of abode (Fule, et
al. vs. CA, et al., L-40502, Nov. 29, 1976), and not to his
permanent legal residence or domicile (Jao vs. CA, et al..
G.R. No. 128314, May 29, 2002).
2. It is only where the decedent was a nonresident

of the Philippines at the time of his death that venue
lies in any province in which he had estate, and the then
Court of First Instance thereof first taking cognizance
of the proceeding for settlement acquires jurisdiction to
the exclusion of other courts. This is subject, however, to
the preferential jurisdiction of the court where testate
proceedings are filed, as hereinafter discussed.
3. T h e question of residence is determinative only

of the venue and does not affect the jurisdiction of the court
(Sy Ba vs. Co Ho, 74 Phil. 239; Cuenco, et al. vs. CA, et al.,
L-24742, Oct. 26, 1979; Fule, et al. vs. CA, et al, supra).
Hence, the institution of the proceeding in the province
wherein the decedent neither had residence nor estate does
not vitiate the action of the probate court. As venue may
be waived, the submission of all affected parties to said
proceeding is a waiver of objection to this error (see Malig
vs. Bush, L-22761, May 31, 1969; Rodriguez, et al. vs.
Borja, etc., et al, L-21993, June 21, 1966).
4. However, where the proceeding was commenced
with a court of improper venue, as where the decedent was
neither a resident at the time of his death nor had estate
therein, and such objection was seasonably raised in the
9
RULE 73 REMEDIAL LAW COMPENDIUM SECS. 1-2
probate court, the petition should be dismissed and the

proceedings should be instituted in the proper court
(Eusebio vs. Eusebio, et al., supra).
5. Where the proceedings were instituted in two courts
and the question of venue is seasonably raised, the
court in which the proceeding was first filed has exclusive
jurisdiction to resolve the issue (De Borja, etc. vs. Tan, etc.,
et al., 97 Phil. 872). The branch of the court first taking
c o g n i z a n c e of such p r o c e e d i n g a c q u i r e s e x c l u s i v e
jurisdiction to r e s o l v e all questions c o n c e r n i n g the
settlement of the estate to the exclusion of all other courts
or branches of the same court (Macias vs. Uy Kim, et al.,
L-31174, May 30, 1972; Intestate Estate of Wolfson,
L-28054, June IS, 1972).
This rule means that the court with which the petition
is first filed must also first take c o g n i z a n c e of the
settlement of the intestate estate of the decedent. However,
if it learns thereafter that another court has before it a
petition for the probate of the decedent's will, it may hold
the petition before it in abeyance and defer to the second
court where the probate proceedings are pending and if
the will is admitted to probate therein, it will definitely
decline to take cognizance (Cuenco, et al. vs. CA, et al.,
supra).
6. The probate court acquires jurisdiction over the

proceeding from the moment the petition for settlement is
filed with said court. It cannot be divested of such
jurisdiction by the subsequent acts of the interested parties,
as by entering into an extrajudicial partition of the estate
(Sandoval vs. Santiago, etc., 83 Phil. 784) or by filing
another petition for settlement in a proper court of
concurrent venue (De Borja, etc. vs. Tan, etc., et al.,
supra). H o w e v e r , the S u p r e m e C o u r t m a y o r d e r a
change of venue under its supervisory authority over
inferior courts (Cuenco, et al. vs. CA, et al., supra).
10
7. The conjugal partnership shall be liquidated in the
proceedings for the settlement of the estate of the deceased
spouse or, if both have died, in the proceedings for either
estate. If separate proceedings have been instituted for
each estate, both proceedings may be consolidated if they
were filed in the same court. T h e probate court has
jurisdiction to determine whether the property is conjugal
as it has to liquidate the conjugal partnership to determine
the estate of the decedent (Bernardo, et al. vs. CA, et al.,
L-18148, Feb. 28, 1963).
Since the last sentence of Sec. 2 p r o v i d e s that
liquidation may be made in either proceeding where both
are still pending, it is a matter of sound judicial discretion
in which one it should be made (Phil. Comm. & Industrial
Bank, etc. vs. Escolin, etc., et al, L-27860 & L-27896,
Mar. 29, 1974).
Ji^-Upon the death of a spouse, no action can be

maintained against the surviving spouse for the recovery
of a debt chargeable against the conjugal partnership, as
the claim should be filed in the settlement proceeding
of the estate of the deceased spouse (Calma vs. Tanedo,
66 Phil. 594). Neither may the surviving spouse, after the
death of the other, enter into an agreement novatory
of a contract executed by both of them during the lifetime
of the deceased (Ocampo, et al. vs. Potenciano, et al., 89
Phil. 159).
T^le estates of the deceased spouses may be settled in
a single proceeding (Benigno vs. De la Pena, etc., et al., 57
Phil. 305), but in all other instances, even if the deceased
persons are related as ascendants and descendants, their
separate estates must be settled in different proceedings
(Sy Hong Eng vs. Sy Lioc Suy, 10 Phil. 209).
However, if in the determination of the conjugal
nature of such property a question of title thereto is raised
by a third person, the probate court has no jurisdiction
11
to determine the title to said property (Falcatan vs.

Sanchez, et al., 101 Phil. 1238) as the issue of title should
be threshed out in a proper action (Lee, et al. vs. CA,
et al, L-37185, Dec. 28, 1973). This is especially true in
summary proceedings and to avoid delay, as the distribution
is always subject to the results of the appropriate suit and
the claimant's rights can be protected by a notice of lis
pendens (Ermac, et al. us. Medelo, et al., L-32281, June 19,
1975).
10. The probate court may pass upon the question
of title to property only where (a) the interested parties
who are all heirs of the deceased consent thereto and
the interests of third parties are not prejudiced (Cunanan
us. Amparo, 80 Phil. 287; Vda. de Mahalac vs. Ocampo,
et al., 73 Phil. 661; Marcelino vs. Antonio, 70 Phil. 388),
as where the parties are all heirs of the deceased (Sebial
vs. Sebial, et al., L-23419, June 27, 1975); and (b) in a
provisional manner, to determine whether said property
should be included in or excluded from the inventory,
without prejudice to the final determination of title in
a separate action (Bernardo, et al. vs. CA, et al., supra;
Vda. de Valera, et al. vs. Ofilada, etc., et al., L-27526,
Sept. 12, 1974; Valera, et al. vs. Inserto, et al., G.R.
No. 56504, May 7, 1987) especially where the property
is in the possession of a third party who has a certificate of
title thereto (Cuizon, et al. vs. Ramolete, et al., G.R.
No. 51291, May 29, 1984).
Although, generally, a probate court may not decide a

question of title or ownership, yet if the interested parties
are all heirs, or the question is one of c o l l a t i o n or
advancement, or the parties consent to the assumption of
jurisdiction by the probate court and the rights of third
persons are not impaired, the probate court is competent
to decide the question of ownership (Coca, et al. vs.
Pangilinan, et al., L-27082, Jan. 31, 1978).
12
Thus, where an action has been filed by strangers

to recover property involved in the settlement proceedings,
said plaintiffs may be allowed by the probate court to
intervene in the proceedings but only to protect their
interests and not for decision on their claims (Dinglasan,
et al. vs. Ang Chia, etc., et al., 88 Phil. 476; Baquial vs.
Amihan, etc., et al., 92 Phil. 501).
11. T h e probate court has the power to determine

questions as to who are the heirs of the decedent (Reyes vs.
Ysip, etc., et al., 97 Phil. 11), the r e c o g n i t i o n of a
natural child (Gaas vs. Fortich, 54 Phil. 196), the validity
of disinheritance effected by the testator (Hilado vs.
Ponce de Leon, [CA], 50 O.G. 222; see Sec. 1, Rule 90), and
the status of a woman who claims to be the lawful wife
of the decedent (Torres vs. Javier, 34 Phil. 882).
It further has the jurisdiction to pass upon the
validity of a waiver of hereditary rights (Borromeo-Herrera
vs. Borromeo, et al., L-41171, July 23, 1987, deciding 3
other cases therein). Its jurisdiction extends to matters
incidental or collateral to the settlement and distribution
of the estate, such as the determination of the status of
each heir and whether the property in the inventory is
conjugal or exclusive property of the deceased spouse.
12. T h e probate court has no jurisdiction to rule on

the validity of the redemption effected by the administrator
of the realty mortgaged during the decedent's lifetime and
thereafter sold at extrajudicial foreclosure sale to the
mortgagee who has taken possession thereof, especially
where the timeliness of such redemption and the validity
of the tender and the payment of the redemption price is
questioned by the mortgagee who is a stranger to the estate
proceeding. The validity of the redemption, if upheld, is
effectively a judgment that the property is owned by the
estate. Questions to title should be litigated in a separate
action (Morales, et al. vs. CFI of Cavite, et al, L-47125,
Dec. 29, 1986).
13
13. The probate court generally can not issue writs of

execution because its orders usually r e f e r to the
adjudication of claims against the estate which the executor
or administrator may satisfy without the need of executory
processes. The Rules, however, specify the instances
wherein the probate court may issue a writ of execution,
i.e., to satisfy the contributive shares of the devisees,
legatees and heirs in possession of the decedent's assets
(Sec. 6, Rule 88), to enforce payment of the expenses of
partition (Sec. 3, Rule 90), and to satisfy the costs when a
person is cited for examination in probate proceedings
(Sec. 13, Rule 142). Under the rule of inclusio unius est
exclusio alterius, these would be the only instances when
the probate court can issue a writ of execution (Vda. de
Valera, et al. vs. Ofilada, et al, L-27526, Sept. 12, 1974).
Sec. 3. Process. — In the e x e r c i s e of p r o b a t e

j u r i s d i c t i o n , C o u r t s o f F i r s t I n s t a n c e m a y issue
w a r r a n t s and process necessary to compel the
attendance of witnesses or to c a r r y into effect their
orders and judgments, a n d all other p o w e r s g r a n t e d
them by law. If a p e r s o n does not p e r f o r m an o r d e r
or j u d g m e n t r e n d e r e d by a court in the exercise of
its p r o b a t e jurisdiction, it may issue a w a r r a n t f o r
the apprehension a n d imprisonment of such p e r s o n
until h e p e r f o r m s such o r d e r o r j u d g m e n t , o r i s
released.
Sec. 4. Presumption of death. — F o r p u r p o s e s of

settlement of his estate, a p e r s o n shall be p r e s u m e d
d e a d if absent a n d u n h e a r d f r o m f o r the p e r i o d s
fixed in the Civil C o d e . B u t if such p e r s o n p r o v e s to
be alive, he shall be entitled to the b a l a n c e of his
estate after payment of all his debts. T h e b a l a n c e
may be recovered by motion in the same proceeding.
14
NOTES
1. U n d e r the C i v i l C o d e , the absentee shall be

presumed dead for the purpose of opening his succession
after an absence of 10 years, but if he disappeared after
the age of 75 years, an absence of 5 years is sufficient
(Art. 390). If, however, the absentee was on board a vessel
lost during a sea voyage, or an airplane which is missing,
or was in the armed forces and has taken part in war, or
has been in danger of death under other circumstances,
only 4 years is required (Art. 391).
2. A r t . 392 of the Civil Code provides as follows:

" I f the absentee appears, or without appearing
his existence is proved, he shall recover his property
in the condition in which it may be found, and the
price of any property that may have been alienated or
the property acquired therewith; but he cannot claim
either fruits or rents."
3. Taken conjointly with said A r t . 392 of the Civil

Code, the recovery by the returning absentee of his estate
is subject to the conditions that (a-) all his debts must
have been paid; (b) he shall recover his property in the
condition in which it may be found, together with the
price of any property that may have been alienated or the
property acquired therewith; and (c) he is not entitled to
fruits or rents.
15
R U L E 74
SUMMARY SETTLEMENT OF ESTATES
Section 1. Extrajudicial settlement by agreement

between heirs. — If the decedent left no w i l l and no
debts and the heirs are all of age, or the minors a r e
represented by their judicial or legal representatives
duly authorized for the purpose, the parties may,
without securing letters of administration, divide,
the estajê-among t h e m s e l v e s as they see fit"~by
means of a public m s t f u m e n ^ f i l e d in the office of
the register o f d e e d s , a n d s h o u l d they d i s a g r e e ,
they may do so in an o r d i n a r y action of partition. If
there is only one heir, he may adjudicate to himself
the entire estate by means of an affidavit filed in
the office of the register of deeds. T h e parties to
a n e x t r a j u d i c i a l settlement, w h e t h e r b y p u b l i c
instrument or by stipulation in a p e n d i n g action for
partition, or the sole heir w h o adjudicates the entire
estate to himself by means of an affidavit shall file,
simultaneously with a n d as a condition p r e c e d e n t
to the filing of the public instrument, or stipulation
in the action for partition, or of the affidavit in the
office of the register of deeds, a b o n d w i t h the said
register of deeds, in an amount equivalent to the
value of the personal p r o p e r t y involved as certified
to u n d e r oath by the p a r t i e s c o n c e r n e d a n d
conditioned u p o n the payment of any just claim that
may be filed u n d e r section 4 of this r u l e . It shall be
p r e s u m e d t h a t the d e c e d e n t left n o d e b t s i f n o
creditor files a petition for letters of administration
within two (2) years after the death of the decedent.
T h e fact o f the e x t r a j u d i c i a l s e t t l e m e n t o r
administration shall be p u b l i s h e d in a n e w s p a p e r
of general circulation in the m a n n e r p r o v i d e d in the
next succeeding section; but no e x t r a j u d i c i a l
16
RULE 74 SUMMARY SETTLEMENT OF ESTATES
settlement shall b e b i n d i n g u p o n any person w h o

has not p a r t i c i p a t e d t h e r e i n or h a d no notice
thereof.
NOTES
1. This Rule actually provides for two exceptions to

the requirement that the estate of the decedent should be
j u d i c i a l l y administered through an administrator or
executor, viz.:
(a) Extrajudicial settlement (Sec. 1); and
(b) Summary settlement of estates of small value
(Sec. 2).
2. The salient distinctions between these two methods

of settlement are as follows:
a< Extrajudicial settlement, as the term implies, does
not require court intervention, while summary settlement
involves judicial adjudication although in a summary
proceeding.
b. In the first, the value of the estate is immaterial,
while the second applies only where the gross estate does
not exceed f*10,000. This amount is jurisdictional (Del
Rosario vs. Conanan, et al., L-37903, Mar. 30, 1977).
c. Extrajudicial settlement is allowed only in intestate
succession, while summary settlement is allowed in both
testate and intestate estates.
d. T h e first is p r o p e r only w h e r e there are no
outstanding debts of the estate at the time of settlement,
while the second is available even if there are debts, as the
court will make provisions for the payment thereof.
e. Extrajudicial settlement can be resorted to only at
the instance and by agreement of all the heirs, while
summary settlement proceedings may be instituted by any
interested party and even by a creditor of the estate,
without the consent of all the heirs.
17
3. The requisites of a valid extrajudicial settlement

are:
(a) The decedent died intestate;
(b) There are no outstanding debts of the estate at
the time of the settlement;
(c) T h e heirs are all of age, or the m i n o r s are
r e p r e s e n t e d by t h e i r j u d i c i a l g u a r d i a n s or l e g a l
representatives;
(d) The settlement is made in a public instrument,
stipulation or affidavit duly filed with the register of
deeds; and
(e) The fact of such extrajudicial settlement must be
published in a newspaper of general circulation in the
province once a week for three (3) consecutive weeks.
4. Extrajudicial settlement presupposes concurrence

among all the heirs to the partition of the estate as provided
in the instrument. If they cannot agree on the manner of
partition, they may institute an action for partition unless
the same is prohibited by an agreement, by the donor or
testator, or by law (Art. 494, Civil Code). If despite the
institution of such action, they subsequently arrive at an
a g r e e m e n t , they may e n t e r i n t o the c o r r e s p o n d i n g
stipulation and register the same with the register of deeds
(see Sec. 2, Rule 69).
5. Where the case is proper for extrajudicial settle-

ment, a dissenting heir cannot insist on i n s t i t u t i n g
administration proceedings which would be superfluous
and unnecessary (Monserrat vs. Ibahez, 88 Phil. 785), unless
he can establish good reasons for not resorting to an action
for partition (Rodriguez, et al. vs. Tan, etc., et al., 92 Phil.
273).
Recourse to an administration proceeding, even if
the estate has no debts, is sanctioned only if the heirs
have good reasons for not resorting to an action for
18
partition and the claims of the heirs may be properly

ventilated and settled therein (Pereira vs. CA, et al., G R
No. 81147, June 20, 1989).
6. The present Rules require a public instrument for

purposes of extrajudicial settlement. A l t h o u g h this
requirement also appeared in the old Rules, it was held
that the partition as actually made was effective as
among.the parties thereto although it was not evidenced
by any writing, much less a public instrument (Hernandez
vs. Andal, 78 Phil. 196). Under the new Rules, however, it
would appear that a public instrument is now required for
registration. If the settlement is in a private instrument,
it is believed that the same is still valid and reformation
of the instrument may be compelled (Arts. 1359, et seq.,
Civil Code).
7. While the Rule provides that the decedent must not

have left any debts, it is sufficient if any debts he may have
left have been paid at the time the extrajudicial settlement
is entered into (Guico vs. Bautista, 110 Phil. 584). It is
presumed that the decedent left no debts if no creditor files
a petition for letters of administration within two years
after the death of the decedent. Such presumption is
rebuttable.
8. A bond is required only when personalty is involved

in the extrajudicial partition, as the real estate is subject
to a lien in favor of creditors, heirs or other persons for
the full period of two years from such distribution and such
lien cannot be substituted by a bond (Rebong vs. Ibahez,
79 Phil. 324). The value of the personal property which
must be covered by the bond is determined from the sworn
declaration of the parties in the instrument of settlement
or affidavit of adjudication or, if not mentioned therein, in
an affidavit stating such valuation which the register of
deeds shall require them to execute (LRC Circular No. 143,
Jan. 28, 1964).
19
9. The minor distributee in an extrajudicial settlement

should be represented therein by a judicial guardian, but
if the property adjudicated to him is not worth more than
P2.000 he may be represented by his legal guardian, i.e.,
his father, or in the latter's absence, his mother (Art. 320,
Civil Code; see, however, Arts. 234 and 236, Family Code,
as amended by R.A. 6809).
Sec. 2. Summary settlement of estates of small value.

— W h e n e v e r the g r o s s v a l u e of the e s t a t e of a
deceased person, whether he died testate or
intestate, does not exceed ten thousand pesos, a n d
that fact is made to a p p e a r to the C o u r t of First
Instance h a v i n g j u r i s d i c t i o n of the estate by the
petition of an interested person a n d u p o n h e a r i n g ,
which shall be held not less than one (1) month n o r
more than three (3) months f r o m the date of the last
p u b l i c a t i o n of a notice w h i c h shall be p u b l i s h e d
once a w e e k for three (3) consecutive w e e k s in a
n e w s p a p e r of general circulation in the p r o v i n c e ,
and after such other notice to interested p e r s o n s as
the court may d i r e c t , the c o u r t m a y p r o c e e d
summarily, without the appointment of an executor
or administrator, a n d w i t h o u t delay, to g r a n t , if
proper, a l l o w a n c e of the w i l l , if any t h e r e b e , to
determine w h o a r e the persons legally entitled to
participate in the estate, a n d to apportion a n d divide
it among them after the p a y m e n t of such debts of
the estate as the court shall then find to be due; a n d
such persons, in their o w n right, if they a r e of l a w f u l
age a n d l e g a l capacity, o r b y t h e i r g u a r d i a n s o r
trustees legally appointed a n d qualified, if other-
wise, shall thereupon be entitled to receive a n d enter
into the possession of the portions of the estate to
be a w a r d e d to them respectively. T h e court shall
make such o r d e r as m a y be just r e s p e c t i n g the costs
of the proceedings, a n d all o r d e r s a n d j u d g m e n t s
20
m a d e o r r e n d e r e d i n the c o u r s e thereof shall b e

r e c o r d e d in the office of the clerk, a n d the o r d e r of
p a r t i t i o n or a w a r d , if it involves r e a l estate, shall
be r e c o r d e d in the p r o p e r register's office.
Sec. 3. Bond to be filed by distributees. — T h e court,

b e f o r e a l l o w i n g a p a r t i t i o n in a c c o r d a n c e w i t h the
provisions of the p r e c e d i n g section, may r e q u i r e the
d i s t r i b u t e e s , if p r o p e r t y o t h e r t h a n r e a l is to be
d i s t r i b u t e d , to file a b o n d in an amount to be fixed
by the court, conditioned for the payment of any just
claim w h i c h m a y be filed u n d e r the next succeeding
section.
NOTES
1. In view of the amendments under B.P. Big. 129, the

summary settlement of estates of small value contemplated
in this section is now within the jurisdiction of the so-called
inferior courts. first level courts
2. T h e a m o u n t of the b o n d to be f i l e d by the
distributees of personal property in summary settlement
proceedings is determined by the court, unlike that in
extrajudicial settlement wherein the amount of the bond
is equal to the value of the personal property as established
by the instrument of adjudication.
3. Although, as a rule, the probate court cannot pass

upon the issue of title in summary proceedings when
one of the heirs asserts an adverse claim to the property
involved therein (Guzman vs. Anog, et al., 37 Pkil. 61),
where it is clear that the property really belongs to the
decedent, the probate court may determine in a summary
settlement who are the parties entitled thereto since in
such a proceeding it is directed to act summarily and
without delay (Vda. de Francisco vs. Carreon, et al.,
95 Phil. 237).
21
Sec. 4. Liability of distributees and estate. — If it

shall appear at any time within two (2) years after
the settlement a n d d i s t r i b u t i o n 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 p r o v i d e d for the p u r p o s e of
satisfying such lawful participation. A n d if w i t h i n
the same time of two (2) years, it shall a p p e a r that
there are debts outstanding against the estate w h i c h
have not been paid, or that an heir or other p e r s o n
has been unduly deprived of his lawful participation
payable in money, the court h a v i n g j u r i s d i c t i o n of
the estate may, by o r d e r f o r that p u r p o s e , a f t e r
hearing, settle the amount of such debts or l a w f u l
participation and order h o w much and in w h a t
m a n n e r each d i s t r i b u t e e shall c o n t r i b u t e i n the
payment thereof, a n d may issue execution, if
circumstances r e q u i r e , against the b o n d p r o v i d e d
in the p r e c e d i n g section or against the r e a l estate
b e l o n g i n g to the deceased, or both. Such b o n d a n d
such real estate shall r e m a i n c h a r g e d w i t h a liability
to c r e d i t o r s , heirs, or o t h e r p e r s o n s f o r the full
period of two (2) years after such distribution,
notwithstanding any transfers of r e a l estate that
may have b e e n made.
Sec. 5. Period for claim of minor or incapacitated

person. — If on the d a t e of the e x p i r a t i o n of the
p e r i o d of two (2) years p r e s c r i b e d in the p r e c e d i n g
section the p e r s o n a u t h o r i z e d to file a claim is a
minor or mentally incapacitated, or is in p r i s o n or
outside of the Philippines, he may present his claim
within one (1) y e a r after such disability is r e m o v e d .
22
RULE 74 SUMMARY SETTLEMENT OF ESTATES SECS 4-5
NOTES
1. T h e two-year lien upon the real property distri-

buted by extrajudicial or summary settlement shall be
annotated on the title issued to the distributees and, after
the lapse of the period, may be cancelled by the register of
deeds w i t h o u t need of a court order (LRC Circular
No. 143, dated Jan. 28, 1964). Such lien cannot be
discharged nor the annotation cancelled within the two-
year period even if the distributees offer to post a bond
to answer for the contingent claims for which the lien
is established (Rebong vs. Ibahez, 79 Phil. 324).
2. T h e discovery of unpaid debts after the extraju-

dicial settlement has been effected does not ipso facto
invalidate the partition. In such a case, the creditor may
ask for administration of enough property of the estate
sufficient to pay the debt, but the heirs can prevent such
administration by paying the obligation (McMicking vs.
Sy Conbieng, 21 Phil. 211); or the creditor can file an
ordinary action against the distributees for his claim.
3. Where the estate has been summarily settled, the

unpaid creditor may, within the two-year period, file a
motion in the court wherein such summary settlement was
had for the payment of his credit. After the lapse of the
two-year period, an ordinary action may be instituted
against the distributees within the statute of limitations,
but not against the bond.
4. An extrajudicial settlement, despite the publication

thereof in a newspaper, shall not be binding on any person
who has not participated therein or who had no notice
thereof (Sec. 1, last par.). A summary settlement is likewise
not binding upon heirs or creditors who were not parties
therein or had no knowledge thereof (see Sampilo, et al.
vs. CA, et al, 103 Phil. 70). jSaid heirs or creditors may
vindicate their rights either by proceeding against the
estate, the distributees or against the bond within the two-
23
year period, or even thereafter but within the statute of

limitations, but, this time, they can no longer proceed
against the bond.
5. T h e action to annul a deed of e x t r a j u d i c i a l

settlement on the ground of fraud should be filed within
four years from the discovery of the fraud (Gerona, et al.
vs. De Guzman, et al., L-19060, May 29, 1964).
R U L E 75
PRODUCTION OF WILL.
ALLOWANCE OF WILL NECESSARY
Section 1. Allowance necessary. Conclusive as to ex-

ecution. — No w i l l si ass either r e a l or personal
estate unless it isroroveji a n d a l l o w e d in the p r o p e r
court. Subject to the right of appeal, such allowance
of the w i l l shall be conclusive as to its due execution.
NOTES
1. See the antecedent provision in A r t . 838, Civil Code.

T h e probate (allowance or authentication) of a will refers
to its due execution and settles only the formal or extrinsic
validity of the will, i.e., whether the testator, being of sound
mind, freely executed the will in accordance with the
formalities prescribed by law (Pastor, et al. vs. CA, et al.,
G.R. No. 56340, June 24, 1983). It does not affect or
pertain to the intrinsic validity of the provisions thereof
(In re Estate of Johnson, 39 Phil. 156) which determi-
nation normally comes after the allowance of the will.
Such allowance in a final judgment is conclusive on that
issue and cannot be assailed in another proceeding, except
on the ground of fraud in the procurement of the decree
(Manahan vs. Manahan, 50 Phil. 448).
2. The doctrine of estoppel does not apply in probate

proceedings since the presentation and the probate of a
will are required by public policy (Fernandez, et al. vs.
Dimagiba, L-23638, Oct. 12, 1967) and they involve public
interest (Alsua-Betts, et al. vs. CA, et al., L-46430-31,
July 30, 1979).
In exceptional cases, as where the defect is apparent
on its face, the probate court may determine the intrinsic
validity of the will even before its formal validity is
established, as the probate of a will may become a useless
25
ceremony if the will is intrinsically invalid (Balanay, Jr.

vs. Martinez, et al., L-39247, June 27, 1975). In said
case, however, the will was intrinsically invalid as it
completely preterited the heirs of the testator (cf. Acain
vs. IAC, et al., G.R. No. 72706, Oct. 27, 1987). The same
procedure and doctrine were adopted in Nepomuceno vs.
CA, et al. (G.R. N o . 62952, Oct. 9, 1985), where the devise
was intrinsically invalid since the will itself stated that
the devisee was the paramour of the testator. Where,
however, there is a necessity to .resolve the issue as to
whether, under the terms of the will, an heir has been
preterited or disinherited and in the latter case, whether
the disinheritance was valid, the procedure followed in the
Balanay case cannot be allowed (Maninang, et al. vs. CA,
et al., G.R. No. 57848, June 19, 1982; cf. Cayetano vs.
Leonidas, et al., G.R. No. 54919, May 30, 1984).
Sec. 2. Custodian of will to deliver. — T h e per^crn

w h o has custody of the w i l l shall, w i t h i n t w e n t y ((20)
days after he k n o w s of the d e a t h of the testator,
deliver the w i l l to the court h a v i n g j u r i s d i c t i o n , or
to the executor n a m e d in the w i l l .
Sec. 3. Executor to present will and accept or refuse

-tru$t. — A person n a m e d in a will shall, w i t h i n twenty
(20) days after he k n o w s of the d e a t h of the testator,
or within twenty (20) days after he k n o w s that he is
named executor if he o b t a i n e d such k n o w l e d g e after
the death of the testator, present such w i l l to the
court having jurisdiction, unless the will has r e a c h e d
the court in any other manner, a n d shall, w i t h i n such
period, signify to the court in w r i t i n g his acceptance
of the trust or his refusal to accept it.
Sec. 4. Custodian and executor subject to fine for

neglect. — A p e r s o n w h o neglects any of the duties
r e q u i r e d in the t w o last p r e c e d i n g sections w i t h o u t
26
RULE 75 PRODUCTION OF WILL. SEC. 5
ALLOWANCE OF WILL NECESSARY
excuse satisfactory to the court shall be fined not

e x c e e d i n g t w o t h o u s a n d pesos.
Sec. 5. Person retaining will may be committed^

A p e r s o n h a v i n g custody of a w i l l after the death of
the testator w h o neglects w i t h o u t r e a s o n a b l e cause
to d e l i v e r the same, w h e n o r d e r e d so to d o , to the
court having jurisdiction, may be committed to
p r i s o n a n d there kept until he delivers the w i l l .
NOTES
1. If the custodian of the will delivers it to the exe-

cutor named therein, such executor must, in turn, deliver
that will to the court within twenty days therefrom and
signify whether he accepts the trust.
2. Delivery of the will is made to the Clerk of Court of

the Regional T r i a l Court having jurisdiction over the
estate.
3. Testate proceedings take precedence over intestate

proceedings for the same estate. If during the pendency of
intestate proceedings, a will of the decedent is discovered,
proceedings for the probate of the will shall replace the
intestate proceedings even if an administrator had already
been appointed therein. Should the will not be allowed to
probate, then the proceedings shall be continued as an
intestacy (Cuenco, et al. vs. CA, et al, L-24742, Oct. 26,
1973). Doubts should be resolved in favor of testacy,
especially where the will evinces the intent of the testator
to dispose of his whole estate (Balanay, Jr. vs. Martinez,
et al, supra).
4. In Roberts vs. Leonidas, et al. (G.R. N o . 55509,

April 27, 1984), intestate proceedings were instituted and
held in Manila, but a will disposing of said estate was
admitted to probate in the United States. The petition for
the probate of said will, filed thereafter in Manila, should
27
HNU TAGB
COLLEGE 1
not be dismissed but the two proceedings, intestate and

testate, should be consolidated and jointly heard.
5. It is not proper for the probate court to make a

finding in an intestate proceeding that a will, discovered
after the institution of said proceeding, had been revoked.
The court should order the filing of a petition for the
probate of said w i l l by the party interested therein
(Casiano, et al. vs. Maloto, et al, L-32328, Sept. 30, 1977).
R U L E 76
ALLOWANCE OR DISALLOWANCE OF WILL
Section 1. Who may petition for the allowance of will.

— A n y executor, devisee, or legatee n a m e d in a will,
or any o t h e r p e r s o n interested in the estate, may, at
any time aftex4hetIea1ôf the testator, petition the
court h a v i n g j u r i s d i c t i o n to have the w i l l allowed,
w h e t h e r the same be in his possession or not, or is
lost or destroyed.
T h e testator himself may, d u r i n g his lifetime,

petition the court f o r the a l l o w a n c e of his will.
NOTE
1. The petition for the probate of the will is not subject

to b a r by t h e s t a t u t e of l i m i t a t i o n s and does not
prescribe, as such petition may be filed "at any time" and
is required by public policy (Guevara vs. Guevara, et al.,
98 Phil. 249).
Sec. 2. Contents of petition. — A petition for the

a l l o w a n c e of a w i l l must show, so f a r as k n o w n to
the petitioner:
( a ) T h e jurisdictional facts;
( b ) T h e names, ages, and residences of the heirs,
legatees, a n d devisees of the testator or decedent;
( c ) T h e p r o b a b l e v a l u e a n d c h a r a c t e r o f the
p r o p e r t y of the estate;
( d ) T h e name of the person for w h o m letters are
prayed;
( e ) If the will has not been delivered to the court,
the name of the person having custody of it.
due course order
29
But no defect in the petition shall r e n d e r void

the allowance of the will, or the issuance of letters
testamentary or of a d m i n i s t r a t i o n w i t h the w i l l
annexed.
NOTES
1. The jurisdictional facts required to be alleged in the

petition for probate are:
(a) That a person died leaving a will;
(b) In the case of a resident, that he died in his
residence within the territorial jurisdiction of the court,
or, in the case of a nonresident, that he left an estate
within such territorial jurisdiction (Cuenco, et al. vs. CA,
et al., supra); and
(c) That the will has been delivered to the court
(Salazar vs. CFI ofLaguna, et al., 64 Phil. 785).
2. A creditor of the decedent may file a petition for

the settlement of the latter's estate as a preparatory step
for the filing of the former's claim therein (see notes
under Sec. 20, Rule 3), but an heir who has assigned or
renounced his hereditary rights has no legal interest as
would authorize him to initiate such proceedings (Duran,
et al. vs. Duran, L-23372, June 14, 1967).
Sec. 3. Court to appoint time for proving will. Notice

thereof to be published. — W h e n a w i l l is d e l i v e r e d to,
or a petition f o r the a l l o w a n c e of a w i l l is filed in,
the court h a v i n g jurisdiction, such court shall fix a
time and place f o r p r o v i n g the w i l l w h e n all
c o n c e r n e d m a y a p p e a r t o contest the a l l o w a n c e
thereof, and shall cause notice of such time a n d place
to be published three (3) weeks successively,
previous to the time appointed, in a n e w s p a p e r of
general circulation in the p r o v i n c e .
30
R U L E 76 ALLOWANCE OR DISALLOWANCE, ETC. SEC. 4
B u t n o n e w s p a p e r p u b l i c a t i o n shall b e made
w h e r e the petition for p r o b a t e has b e e n filed by the
testator himself.
Sec. 4. Heirs, devisees, legatees, and executors to be

notified by mail or personally. — T h e court shall also
cause copies of the notice of the time a n d place fixed
for p r o v i n g the will to be addressed to the designated
or o t h e r k n o w n heirs, legatees, a n d devisees of the
testator resident in the P h i l i p p i n e s at their places
of residence, a n d deposited in the post office with
the postage thereon p r e p a i d at least twenty (20) days
b e f o r e the h e a r i n g , if such places of residence be
k n o w n . A copy of the notice must in like m a n n e r
be m a i l e d to the p e r s o n n a m e d as executor, if he be
not the petitioner; also, to any p e r s o n n a m e d as co-
executor not petitioning, if their places of residence
be k n o w n . P e r s o n a l service of copies of the notice
at least ten $10) days b e f o r e the day of h e a r i n g shall
be equivalent to mailing.
If the testator asks f o r the a l l o w a n c e of his o w n
w i l l , notice shall be sent only to his compulsory
heirs.
NOTES
1. The probate of a will is a proceeding in rem and the

publication provided for by this Rule is a jurisdictional
requirement. The personal service of notice upon the heirs
is a m a t t e r of p r o c e d u r a l c o n v e n i e n c e and not a
jurisdictional requisite (In re Estate of Johnson, 39 Phil.
156; In Re Testate Estate of Deceased Jose B. Suntay, 95
Phil. 500; Abut, et al. vs. Abut, et al., L-26743, May 31,
1972).
However, where the names of the heirs and their
residences are known, notice of the hearing of the petition
in accordance with Sec. 4, Rule 76 must be forwarded to
31
RULE 76 REMEDIAL LAW COMPENDIUM SECS. 6, 11-12
them and such requirement cannot be satisfied by mere

publication (De Aram, et al. vs. Gating, etc., et al., G.R.
No. 77047, May 28, 1988).
2. The requirement of three successive weeks of
publication in Sec. 3 does not mean that three full weeks
or twenty-one days should intervene between the first
publication and the date of hearing. It is sufficient that
publication has been made once a week successively three
times, even if less than twenty-one days intervened between
the first publication and the hearing (Basa vs. Mercado,
61 Phil. 632).
3. Where the testator himself petitions for the probate

of his will in his lifetime, no publication is required and
notice is required only for his compulsory heirs. Such
notice should, under these circumstances, be considered a
jurisdictional requisite.
# e c . 5. Proof at hearing. What sufficient in absence

of contest. — At the h e a r i n g c o m p l i a n c e w i t h the
provisions of the last t w o p r e c e d i n g sections must
be s h o w n b e f o r e the introduction of testimony in
support of the will. A l l such testimony shall be taken
u n d e r oath a n d r e d u c e d to w r i t i n g . If no p e r s o n
a p p e a r s to contest the a l l o w a n c e of the w i l l , the
c o u r t m a y g r a n t a l l o w a n c e thereof on the testimony
o f j o n e j o f the s u b s c r i b i n g w i t n e s s e s only, if s u c h
w i t n e s s testify that the w i l l w a s e x e c u t e d a s i s
r e q u i r e d b y law.
no oppositor
In the case of a h o l o g r a p h i c w i l l , it s h a l l be
necessary that at least o n e witness w h o k n o w s the
h a n d w r i t i n g a n d signature of the testator explicitly
declare that the w i l l a n d the s i g n a t u r e a r e in the
h a n d w r i t i n g of the testator. In the absence of any
such competent witness, a n d if the court d e e m it
necessary, expert testimony may be r e s o r t e d to.
order of general default = whole world is defaulted, cannot
already opposed. before evidence is allowed to be presented.
32
RULE 76 ALLOWANCE OR DISALLOWANCE, ETC. SECS. 5, 11
Sec. 11. Subscribing witnesses produced or

accounted for-where will contested. — If the w i l l is
contested, f a l l ^ h e s u b s c r i b i n g witnesses, and the
n o t a r y in the^case of w i l l s executed u n d e r the Civil
C o d e of the Philippines, if present in the Philippines
a n d not insane, must be produced and examined, and
the death, absence, or insanity of any of them must
be satisfactorily s h o w n to the court. If all or some
of such witnesses a r e present in the P h i l i p p i n e s but
outside the p r o v i n c e w h e r e the w i l l has b e e n filed,
their deposition must be taken. If any or all of them
testify against the due execution of the will, or do
not r e m e m b e r h a v i n g attested to it, or a r e otherwise
of doubtful credibility, the w i l l may, nevertheless,
(be^dlowed if the court is satisfied from the testimony
ôr o t h e r w i t n e s s e s a n d f r o m a l l t h e e v i d e n c e
p r e s e n t e d that the w i l l w a s executed a n d attested
i n the m a n n e r r e q u i r e d b y law.
If a h o l o g r a p h i c w i l l is contested, the same shall

be a l l o w e d if at least three (3) witnesses w h o know
the h a n d w r i t i n g of the testator explicitly declare
that the w i l l a n d the s i g n a t u r e a r e in the hand-
w r i t i n g o f t h e t e s t a t o r ; i n the a b s e n c e o f any
competent witness, a n d if the court deem it
necessary, expert testimony may be resorted to.
hand writing expert
Sec. 12. Proof where testator petitions for allowance
of holographic will. — W h e r e the testator himself
petitions for the p r o b a t e of his holographic will and
no contest is filed, the fact that he affirms that the
holographic will and the signature are in his own
h a n d w r i t i n g , shall be sufficient evidence of the
g e n u i n e n e s s a n d due e x e c u t i o n thereof. If the
h o l o g r a p h i c w i l l is contested, the b u r d e n of
d i s p r o v i n g the g e n u i n e n e s s a n d d u e e x e c u t i o n
thereof shall be on the contestant. The testator may,
in his turn, present such additional proof as may be
33
REMEDIAL LAW COMPENDIUM SECS. 5, 11-12
necessary to rebut the evidence for the contestant.
NOTES
1. Sec. 5 provides for the requisite proof where the

petition for the probate of the will, notarial or hologra-
phic, is not contested. In the absence of any opposition
to such probate, the evidence for the petitioner may be
received ex parte (Cayetano vs. Leonidas, et al., G.R. No.
54919, May 30, 1984). In the case of a holographic will,
and there is no contest, only one witness is required
and, in his absence, expert evidence may be resorted to. If
the testator of the holographic will himself testifies, he need
merely affirm his handwriting and signature. See also the
provisions of A r t . 811, Civil Code, which contain
substantially the same provisions.
2. In the case of a contested notarial will, it is the duty

of the petitioner to produce all the available attesting
witnesses and the notary public, but he is not concluded
by the testimony of said witnesses, even if adverse, as the
court may still admit the will to probate on the basis of
other satisfactory evidence (Fernandez vs. Tantoco, 48 Phil.
380). This is an exception to the rule that a party is
generally bound by the testimony or evidence that he
presents, because here, unlike ordinary actions, he has no
choice in the evidence as he is duty-bound to account for
all the attesting witnesses. It has been held that the
t e s t i m o n y o f the n o t a r y b e f o r e w h o m the w i l l was
acknowledged will prevail over that of the two attesting
witnesses who claim undue execution of the will (Ramos,
et al. vs. CA, et al., L-40804, Jan. 81, 1978).
3. In the case of a holographic will, it is not mandatory

that witnesses be first presented before expert testimony
may be resorted to, unlike notarial wills wherein the
attesting witnesses must first be presented or accounted
for (Azaola vs. Singson, 109 Phil. 102; see also Sec. 8). This
34
RULE 76 ALLOWANCE OR DISALLOWANCE, ETC.
is so because holographic wills are not required to be

witnessed and the existence of a qualified witness may be
beyond the control or knowledge of the proponent of the
will.
Sec. 6. Proof of lost or destroyed will. Certificate

thereupon. — No w i l l shall be p r o v e d as a lost or
destroyed w i l l unless the execution a n d validity of
the same be established, a n d the will is p r o v e d to
h a v e b e e n in existence at the time of the death of
the testator, or is s h o w n to h a v e b e e n fraudulently
or a c c i d e n t a l l y d e s t r o y e d in the l i f e t i m e of the
t e s t a t o r w i t h o u t h i s k n o w l e d g e , n o r u n l e s s its
provisions a r e clearly a n d distinctly p r o v e d by at
least t w o (2) c r e d i b l e witnesses. W h e n a lost will is
p r o v e d , the p r o v i s i o n s thereof must be distinctly
stated a n d certified by the j u d g e , u n d e r the seal of
the c o u r t , a n d the certificate must b e filed a n d
r e c o r d e d as other wills a r e filed a n d recorded.
NOTES
1. This section provides for the requisite quantum

of evidence to prove a lost or destroyed notarial will in the
absence of contest, and constitutes an exception to the rule
on secondary evidence in Sec. 5, Rule 130. The witnesses
required here, who need not be attesting witnesses
(although the testimony of the latter would be entitled to
greater weight) must clearly establish (£) the due execution
and formal validity of the will, (b) the existence of the will
at the time of the death of the testator or its fraudulent or
accidental destruction in the lifetime of the testator and
without his knowledge, and (a) the provisions of said will,
to be testified to by at least two credible witnesses.
2. If, however, the probate of such lost or destroyed
notarial will is contested, then Sec. 11 of this Rule has
to be complied with, that is, all the subscribing witnesses
35
and the notary public must be accounted for and, if

available, their testimony must be secured, and all the facts
stated in Sec. 6 must be established by them or by two
credible witnesses.
3. Where a lost will is shown to have been in the
possession of the testator when last seen, or that the
testator had ready access to the will and it can not be found
after his death, the presumption is that he destroyed or
cancelled it and not that it was destroyed by other persons
without his knowledge or authority (Gago vs. Mamuyac, et
al., 49 Phil. 902).
4. This section applies to a lost or destroyed notarial

will and not to a holographic will. A lost or destroyed
holographic will cannot be proved by the bare testimony
of witnesses who have seen and/or read such will as the
probate thereof requires identification of the handwriting
and signature of the t e s t a t o r (Sees. 5, 11 and 12),
presupposing the availability of the holographic will in
court. T h e Supreme Court, however, intimated that
perhaps it may be proved by photographic, photostatic or
carbon copies or similar means (see Gan vs. Yap, 104
Phil. 509). In Rodelas vs. Aranza, et al. (G.R. N o . 58509,
Dec. 7,1982), it was definitely held that the lost holographic
will could be proved by photostatic or xerox copies thereof.
Sec. 7. Proof when witnesses do not reside in

province. — If it a p p e a r s at the time fixed f o r the
h e a r i n g that n o n e o f the s u b s c r i b i n g w i t n e s s e s
resides in the province, b u t that the deposition of
one or more of them can be taken e l s e w h e r e , the
court may, on motion, direct it to be taken, a n d may
a u t h o r i z e a p h o t o g r a p h i c copy of the w i l l to be
m a d e a n d to be p r e s e n t e d to the w i t n e s s on his
examination, w h o may be asked the same questions
w i t h respect to it, a n d to the h a n d w r i t i n g of the
testator a n d o t h e r s , a s w o u l d b e p e r t i n e n t a n d
36
RULE 76 ALLOWANCE OR DISALLOWANCE, ETC. SECS. 8, S
competent if the o r i g i n a l w i l l w e r e present.
Sec. 8. Proof when witnesses dead or insane or do

not reside in the Philippines. — If it a p p e a r s at the time
fixed f o r the h e a r i n g that the s u b s c r i b i n g witnesses
a r e d e a d or insane, or that none of them resides in
the P h i l i p p i n e s , the court may admit the testimony
fof other witnesses to p r o v e the sanity of the testator,
a n a the d u e execution of the will; a n d as evidence
of the execution of the w i l l , it may admit p r o o f of
the h a n d w r i t i n g of the t e s t a t o r a n d of the
s u b s c r i b i n g witnesses, or of any of them.
NOTE
1. In the case of a notarial will where none of the

attesting witnesses are available, the court may admit other
witnesses and admit proof of the handwriting of the testator
and the attesting witnesses.
Sec. 9. Grounds for disallowing will. — T h e will

shall be d i s a l l o w e d in any of the f o l l o w i n g cases:
( a ) If not executed a n d attested as r e q u i r e d by
law;
( b ) I f the t e s t a t o r w a s i n s a n e , o r o t h e r w i s e
mentally i n c a p a b l e to m a k e a will, at the time of its
execution;
( c ) I f i t w a s e x e c u t e d u n d e r d u r e s s , o r the
influence of fear, or threats;
( d ) If it w a s p r o c u r e d by undue and improper
p r e s s u r e a n d influence, on the p a r t of the bene-
ficiary, or of some other person for his benefit;
( § ) If the signature of the testator was procured
by f r a u d or trick, and he did not intend that the
instrument should be his will at the time of fixing
37
RULE 76 REMEDIAL LAW COMPENDIUM SECS. 10, 13
his signature thereto.
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 a n d other
parties interested in the estate.
Sec. 13. Certificate of allowance attached to proved

will. To be recorded in the Office of Register of Deeds. — If
the court is satisfied, u p o n p r o o f taken a n d filed,
that the will w a s duly executed, and that the testator
a t the time o f its e x e c u t i o n w a s o f s o u n d a n d
disposing mind, a n d not acting u n d e r d u r e s s ,
menace, and u n d u e influence, or f r a u d , a certificate
o f its a l l o w a n c e , s i g n e d b y t h e j u d g e , a n d
attested by the seal of the court shall be attached to
the w i l l a n d t h e w i l l a n d c e r t i f i c a t e f i l e d a n d
recorded by the clerk. Attested copies of the w i l l
devising real estate a n d of certificate of a l l o w a n c e
thereof, shall be r e c o r d e d in the register of deeds of
the province in w h i c h the lands lie.
order of allowance = declaration that
the
NOwill
TES was trulyn executed by the
testator.
1. Regarding Sec. 9 of this Rule, see the equivalent
provisions of Art. 839, Civil Code.
2. For correlation and facility of reference, Sees. 11

and 12 of this Rule have been transposed in this work and
are set out after Sec. 5 thereof.
38
R U L E 77
ALLOWANCE OF WILL PROVED OUTSIDE

OF PHILIPPINES AND ADMINISTRATION
OF ESTATE T H E R E U N D E R
Section 1. Will proved outside Philippines may be

allowed here. — W i l l s p r o v e d a n d a l l o w e d in a foreign
country, a c c o r d i n g to the l a w s of such country, may
b e a l l o w e d , filed, a n d r e c o r d e d b y the p r o p e r C o u r t
of First Instance in the P h i l i p p i n e s .
Sec. 2. Notice of hearing for allowance. — W h e n a

copy of such w i l l a n d of the o r d e r or decree of the
allowance thereof, both duly authenticated, are filed
w i t h a petition for a l l o w a n c e in the Philippines, by
the executor or other person interested, in the court
h a v i n g jurisdiction, such court shall fix a time and
place f o r the h e a r i n g , a n d cause notice thereof to
be given as in case of an original will presented for
allowance.
Sec. 3. When will allowed, and effect thereof. — If it

a p p e a r s a t the h e a r i n g t h a t the w i l l s h o u l d b e
a l l o w e d in the Philippines, the court shall so allow
it, a n d a certificate of its allowance, signed by the
j u d g e , a n d attested by the seal of the court, to which
shall be attached a copy of the will, shall be filed
a n d r e c o r d e d by the clerk, and the will shall have
the same effect as if originally proved and allowed
in such court.
NOTES
1. A will allowed to probate in a foreign country must

be re-probated in the Philippines. The venue for the
petition for re-probate is the same as that provided for in
ancillary administration = proceedings in the philippines.
principal administration = proceedings
39 in his domicile
Rule 73. If the decedent had properties in different

countries, separate administration proceedings must be had
in said countries, the proceeding in his last domicile being
the principal administration and any other administration
proceeding being termed the ancillary administration (see
Johannes, et al. vs. Harvey, etc., et al., 43 Phil. 175; Tayag
vs. Benguet Consolidated, Inc., L-23145, Nov. 29, 1968).
These two proceedings are separate and independent
of each other (Collector of Internal Revenue vs. Fisher,
et al., L-11668, Jan. 28, 1961), but a Philippine court may
grant ancillary letters to the domiciliary representative, if
the relatives of the decedent mentioned in the order of
preference are unsuitable for the trust. The court may, in
the exercise of its sound discretion, also appoint some other
person (Johannes, et al. vs. Harvey, etc., et al., supra).
2. At the proceedings for re-probate in the Philippines,

the proponent must prove (a), that the testator was
domiciled in the foreign country, (b) that the will has been
admitted to probate in such country, (e) that the foreign
court was, under the laws of said foreign country, a probate
court with jurisdiction over the proceedings, Od) the law
on probate procedure in said foreign country and proof of
compliance therewith, and ( e ) the legal requirements in
said foreign country for the valid execution of the will (see
Fluemer vs. Hix, 54 Phil. 610; In Re Testate Estate of
Deceased Jose B. Suntay, 95 Phil. 500).
In the absence of p r o o f of the f o r e i g n law, it is
presumed that it is the same as that in the Philippines (In
Re Testate Estate of Deceased Jose B. Suntay, supra;
Collector of Internal Revenue vs. Fisher, et al., supra).
Sec. 4. Estate, how administered. — W h e n a w i l l is

thus a l l o w e d , the court shall g r a n t letters
testamentary, or letters of administration w i t h the
will annexed, a n d such letters testamentary or of
administration, shall extend to all the estate of the
40
RULE 77 ALLOWANCE OF WILL PROVED SEC. 4
OUTSIDE OF PHILIPPINES, ETC.
testator in the P h i l i p p i n e s . Such estate, after the

p a y m e n t o f j u s t d e b t s a n d e x p e n s e s of adminis-
tration, shall be disposed of a c c o r d i n g to such will,
so f a r as such w i l l m a y o p e r a t e u p o n it; a n d the
residue, if any, shall be disposed of as is p r o v i d e d by
l a w in cases of estates in the P h i l i p p i n e s b e l o n g i n g
to p e r s o n s w h o a r e inhabitants of another state or
country.
NOTES
1. T h e local administrator has power only over the

property of the decedent in the Philippines (Chezzi vs.
Manufacturer's Life Ins. Co., 80 Phil. 459; Tayag vs.
Benguet Consolidated, Inc., supra). However, such property
of a foreigner in the Philippines shall be disposed of in
accordance with his national law, especially on the matter
of the order of succession, the amount of successional
rights and the intrinsic validity of the provisions thereof
(Art. 16, Civil Code).
2. A n y surplus of the estate in the hands of the

Philippine ancillary administrator shall be remitted to the
domiciliary jurisdiction, but the Supreme Court has also
noted that it would be advisable for Philippine courts to
retain in custodia legis a sufficient amount to protect
Philippine claimants with contingent claims, such as when
there are pending cases for payment thereof or for the
determination of the status or right of one who claims as
an heir to the estate (Johannes, et al. vs. D Almeida,
44 Phil. 212), since said administrator also represents the
interests of Philippine creditors, heirs or legatees (Chua
Tan vs. Del Rosario, 57 Phil. 411).
3. See Sec. 9, Rule 88 regarding the disposition of the
estate in the P h i l i p p i n e s of a nonresident who had
creditors abroad but died insolvent therein, and Sec. 10
of the same Rule where such person was a resident of
the Philippines at the time of his death.
41
R U L E 78
LETTERS TESTAMENTARY
AND OF ADMINISTRATION,
WHEN AND TO WHOM ISSUED
Section 1. Who are incompetent to serve as executors

or administrators. — No person is competent to serve
as executor or administrator w h o :
( a ) Is a minor;
( b ) Is not a resident of the Philippines; a n d
( c ) Is in the opinion of the court unfit to execute
the duties of the trust by r e a s o n of d r u n k e n n e s s ,
improvidence, or w a n t of understanding or integrity,
or by reason of conviction of an offense i n v o l v i n g
moral turpitude.
Sec. 3. Married women may serve. — A m a r r i e d

w o m a n may serve as executrix or a d m i n i s t r a t r i x ,
a n d the m a r r i a g e of a single w o m a n shall not affect
h e r authority so to serve u n d e r a p r e v i o u s appoint-
ment.
NOTES
1. An executor is the person named in the w i l l to

administer the d e c e d e n t ' s estate and carry out the
p r o v i s i o n s thereof. An administrator is t h e p e r s o n
appointed by the court to administer the estate where the
decedent died intestate, or where the will was void and not
allowed to probate, or where no executor was named in
the will, or the executor named therein is incompetent or
refuses to serve as such. Sees. 1 and 3 are jointly set out
for convenient reference.
2. A corporation or association authorized to conduct

the business of a trust company in the Philippines may be
42
RULE 78 LETTERS TESTAMENTARY, ETC. SECS. 2, 4-5
appointed as an executor or administrator of an estate in

the same manner as an individual (Art. 1060, Civil Code).
Sec. 2. Executor of executor not to administer estate.

— T h e executor of an executor shall not, as such,
administer the estate of the first testator.
after the conduct of hearing on the intrinsic validity of the will.
Sec. 4. L e t t e r s t e s t a m e n t a r y issued w h e n w i l l
allowed. — W h e n a w i l l has b e e n p r o v e d a n d allowed,
the court shall issue letters testamentary thereon
to the p e r s o n n a m e d as executor therein, if he is
c o m p e t e n t , accepts the trust, a n d gives b o n d a s
r e q u i r e d b y these rules.
Sec. 5. Where some co-executors disqualified others

may act. — W h e n all the executors n a m e d in a will
c a n not act b e c a u s e of incompetency, r e f u s a l to
accept the trust, or f o r f a i l u r e to give b o n d , on the
p a r t of one or m o r e of them, letters testamentary
may issue to such of them as a r e competent, accept
a n d give b o n d , a n d they may p e r f o r m the duties a n d
d i s c h a r g e the trust r e q u i r e d by the will.
NOTE
1. M o r e than one executor may be issued letters

testamentary in accordance with the nomination in the will.
A l s o , w h i l e as a rule the court appoints only one
a d m i n i s t r a t o r for i n t e s t a t e estates, more than one
administrator may be appointed by the court (Sison vs.
Teodoro, 98 Phil. 680). In fact, Sec. 6 provides that letters
of administration may be issued to both the surviving
spouse and the next of kin, and Sec. 3, Rule 81 and Sec. 2,
Rule 82 speak of joint executors or administrators. The
general practice is that co-executors or co-administrators
will exercise joint supervision over the entire estate, but
the court for j u s t i f i a b l e reasons may charge a co-
administrator with powers over a particular portion of the
43
estate for administration by him independent of his

co-administrator, but he must act in close cooperation with
the latter (seeMatute vs. CA, etal, L-26751, Jan. 31,1969).
Sec. 6. When and to whom letters of administration

granted. — If no executor is n a m e d in the will, or the
executor or executors are incompetent, refuse the
trust, or fail to give b o n d , or a person dies intestate,
administration shall be granted:
( a ) To the surviving h u s b a n d or w i f e , as the case
may be, or next of kin, or both, in the discretion of
the c o u r t , o r t o s u c h p e r s o n a s s u c h s u r v i v i n g
h u s b a n d or wife, or next of kin, requests to h a v e
appointed, if competent a n d w i l l i n g to serve;
( b ) If such surviving h u s b a n d or wife, as the case
may b e , or next of kin, or the p e r s o n selected by
them, be incompetent or unwilling, or if the h u s b a n d
or widow, or next of kin, neglects f o r thirty (30) days
after the d e a t h of the p e r s o n to a p p l y f o r
administration or to request that administration be
granted to some other person, it may be g r a n t e d to
one or m o r e of the p r i n c i p a l creditors, if competent
a n d w i l l i n g to serve;
( c ) If there is no such creditor competent a n d
w i l l i n g to serve, it may be g r a n t e d to such o t h e r
person as the court may select.
NOTES
1. This is the order of preference in the appointment

of an administrator but the same may be disregarded for
valid cause (see Sec. 6, Rule 79; Capistrano vs. Nadurata,
46 Phil. 726; Arevalo vs. Bustamante, 69 Phil. 656). A full-
dress hearing to determine the competence of the person
named as administrator should be conducted. The directive
of the testator in his will is not conclusive as supervening
circumstances may have rendered unfit the person named
to the trust (Baluyut vs. Paho, et al., L-42088, May 7,1976).
44
RULE 78 LETTERS TESTAMENTARY, ETC. SEC. 6
2. In the appointment of the administrator of the

estate of a deceased person, the principal consideration is
the interest in the said estate of the one to be appointed
as administrator. This is the same consideration which
Sec. 6 of the Rules takes into account in establishing the
order of preference in the appointment of an adminis-
trator. T h e underlying assumption for this rule is that
those who will reap the benefits of a wise, speedy and
economical administration of the estate or, on the other
hand, suffer the consequences of waste, improvidence or
m i s m a n a g e m e n t , have the higher interest and most
influential motive to administer the estate correctly.
However, the order of preference does not rule out the
appointment of co-administrators and the same may be
resorted to by the probate court in the exercise of sound
discretion. Thus, the appointment of co-administrators
has been upheld for various reasons, viz.: (1) to have the
benefit of their judgment and, perhaps, at all times to have
different interests represented; (2) where justice and equity
demand that opposing parties or factions be represented
in the management of the estate; (3) where the estate is
large or, from any cause, an intricate and perplexing one
to settle; (4) to have all interested persons satisfied and
the representatives to w o r k in harmony for the best
interests of the estate; and (5) when a person entitled to
the administration of an estate desires to have another
competent person associated with him in the office (Gabriel,
et al. vs. CA, et al., G.R. No. 101512, Aug. 7, 1992).
3. The term "next of kin" has been defined as those

persons who are entitled under the statute of distribution
to the decedent's property (Cooper vs. Cooper, 43 Ind. A,
620, 88 NE 341). Generally, the nearest of kin, whose
interest is more preponderant, is preferred in the choice of
administrator. Among members of a class, the strongest
ground for preference is the amount or preponderance of
interest. As between next of kin, the nearest of kin is to be
45
preferred (Cabanas, et al. vs. Enage, et al., 40 O.G. Supp.

No. 12, 227).
4. A party indebted to the decedent's estate cannot
compatibly perform the duties of an administrator and
should not be appointed as such (Lim vs. Diaz-Millarez,
L-17633, Oct. 19, 1966). Where such fact of indebtedness
was only subsequently discovered after the administrator
had been duly appointed, he should not be removed, absent
any other lawful ground (Dalisay, etc. vs. Consolacion, etc.,
et al, L-44702, July 30, 1979).
5. An administrator is not supposed to represent the

interests of any particular party and his acts are deemed
to be objectively for the protection of the rights of everybody
concerned with the estate of the decedent. On the other
hand, however, it is evidently implicit in Sec. 6, Rule 78,
fixing the p r i o r i t y a m o n g those to w h o m l e t t e r s of
administration should be granted, that the criterion in the
selection of the administrator is not his impartiality alone
but, more importantly, the extent of his interest in the
estate, so much so that the one assumed to have greater
interest is preferred to another w h o has less (Phil.
Commercial & Industrial Bank vs. Escolin, etc., et al.,
L-27860 & L-27896, Mar. 29,1974, jointly deciding therein
Testate Estate of the Late Linnie Jane Hodges, et al. vs.
Carles, et al, L-27936 & L-27937).
6. Clerks of court and other court personnel of probate

courts should not be appointed as a d m i n i s t r a t o r s or
receivers of estates of deceased persons so as not to
compromise their objectivity and i m p a r t i a l i t y in the
performance of their regular functions (Medina, et al. vs.
CA, et al., L-34760, Sept. 28, 1973; Vasquez vs. Malvar,
A.M. No. 884-CFI, Aug. 31, 1978).
46
R U L E 79
OPPOSING ISSUANCE OF LETTERS

TESTAMENTARY. PETITION A N D CONTEST
FOR LETTERS OF ADMINISTRATION
Section 1. Opposition to issuance of letters

testamentary. Simultaneous petition for administration.
— A n y p e r s o n i n t e r e s t e d in a w i l l m a y state in
w r i t i n g the g r o u n d s w h y letters testamentary should
not issue to the persons n a m e d therein as executors,
or any of them, a n d the court, after h e a r i n g upon
n o t i c e , s h a l l p a s s u p o n t h e s u f f i c i e n c y o f such
g r o u n d s . A petition may, at the same time, be filed
f o r letters of administration w i t h the will annexed.
Sec. 2. Contents of petition for letters of adminis-

tration. — A petition for letters of administration
must be filed by an interested person and must show,
so f a r as k n o w n to the petitioner:
( b ) T h e names, ages, and residences of the heirs,
a n d the names a n d residences of the creditors, of
the decedent;
( c ) T h e p r o b a b l e v a l u e a n d c h a r a c t e r o f the
p r o p e r t y of the estate;
( d ) The name of the person for w h o m letters of
administration are prayed.
B u t no defect in the petition shall render void
the issuance of letters of administration.
NOTES
1. When a petition for probate of the will has been

filed, Sec. 1 authorizes a person interested in the estate
after the will has already been
47 allowed, 2nd petition for letters of
administration.
not only to challenge the qualifications of the person

nominated therein as executor but, at the same time and
in anticipation of such disqualification, to file a petition
for administration with the will annexed. The court will
thus have two petitions pending before it, but in the event
the nomination of the executor is approved by the court
with the issuance of letters testamentary to him, the
petition for administration with the will annexed must
necessarily be denied.
2. Testate proceedings take precedence over intestate
proceedings. Hence, if intestate proceedings had been filed
and a will is discovered, probate proceedings may be
instituted in a separate proceeding or by appropriate
motion in the same court. Should the probate be denied,
the proceeding shall continue as an intestacy (Uriarte vs.
CFI ofNeg. Occ, et al., L-21938-39, May 29, 1970).
3. In order to be a party, a person must have a material

and direct, and not one that is only indirect or contingent,
interest. Hence, where the right of a claimant is dependent
on the disallowance of the second will and the incapability
to inherit of the legatees instituted by the testator in the
first will, such contingent interest does not make the
claimant an interested party (Espinosa vs. Barrios, etc.,
et al, 70 Phil. 311; Trillana vs. Crisostomo, 89 Phil. 710).
4. Where an heir has validly assigned all his rights to

the estate before the institution of settlement proceedings
thereover, he no longer has the requisite interest to
participate therein (Duran, et al. vs. Duran, L-23372,
June 14, 1967). Where the assignment is made during the
pendency of the settlement proceedings, it requires the
approval of the court for its validity. However, it has been
held that in this situation, even if that assignment has been
approved by the court, such approval is not deemed final
until the proceeding over the estate is closed, as such
approval can still be vacated, hence the assignor remains
48
RULE 79 OPPOSING ISSUANCE OF LETTERS, ETC. SECS. 3-6
as an interested party in the proceeding (Gutierrez vs.

Villegas, et al, L-11848, May 31, 1962).
Sec. 3. Court to set time for hearing. Notice thereof.

— W h e n a petition for letters of administration is
filed in the court h a v i n g j u r i s d i c t i o n , such court
shall fix a time a n d place for h e a r i n g the petition,
a n d shall cause notice thereof to be given to the
k n o w n heirs a n d creditors of the decedent, a n d to
any other persons b e l i e v e d to h a v e an interest in
the estate, in the m a n n e r p r o v i d e d in sections 3 a n d
4 of R u l e 76.
Sec. 4. Opposition to petition for administration. —

A n y i n t e r e s t e d p e r s o n may, b y f i l i n g a w r i t t e n
opposition, contest the petition on the g r o u n d of
incompetency of the p e r s o n for w h o m letters a r e
p r a y e d therein, or on the g r o u n d of the contestant's
o w n r i g h t to the administration, a n d may p r a y that
letters issue to himself, or to any competent person
or persons n a m e d in the opposition.
Sec. 5. Hearing and order for letters to issue. — At

the h e a r i n g of the petition, it must first be shown
that notice has b e e n given as h e r e i n a b o v e required,
a n d thereafter the court shall h e a r the proofs of the
parties in support of their respective allegations,
a n d if satisfied that the decedent left no will, or that
there is no competent a n d w i l l i n g executor, it shall
o r d e r the issuance of letters of administration to the
party best entitled thereto.
Sec. 6. When letters of administration granted to any

applicant. — L e t t e r s of a d m i n i s t r a t i o n m a y be
granted to any qualified applicant, though it appears
that t h e r e a r e o t h e r competent p e r s o n s h a v i n g
better right to the administration, if such persons
49
RULE 79
REMEDIAL LAW COMPENDIUM SECS. 3-6
fail to appear w h e n notified and claim the issuance

of letters to themselves.
NOTE
1. Sec. 6(b), Rule 78, provides that the preference

given to the surviving spouse or next of kin may be
disregarded by the court where said persons neglect to
apply for letters of administration for 30 days after the
decedent's death. Sec. 6 of this Rule reiterates such
provision.
R U L E 80
SPECIAL ADMINISTRATOR
Section 1. Appointment of special administrator. —

W h e n there is delay in g r a n t i n g letters testamentary
or of administration by any cause including an
a p p e a l f r o m the a l l o w a n c e or d i s a l l o w a n c e of a will,
the court may a p p o i n t a special a d m i n i s t r a t o r to
t a k e p o s s e s s i o n a n d c h a r g e o f the estate o f the
deceased until the questions causing the delay are
decided a n d executors or administrators appointed.
NOTES
1. This section authorizes the appointment of a special

a d m i n i s t r a t o r . T h e o t h e r instance when a special
administrator may be appointed is when the regular
administrator or executor has a claim against the estate,
in which case a special administrator shall be appointed
by the court with respect to such claim (Sec. 8, Rule 86).
2. Clerks of court and court employees should not be

appointed special administrators as their objectivity and
i m p a r t i a l i t y may be c o m p r o m i s e d by e x t r a n e o u s
considerations (Medina, et al. us. CA, et al., L-34760,
Sept. 28, 1973; Balanay, Jr. us. Martinez, L-39247,
June 27, 1975).
3. T h e order of preference in the appointment of

regular administrators does not apply to the appointment
of a special administrator (Roxas us. Pecson, et al., 82 Phil.
407), but such order of preference may be followed by the
judge in the exercise of sound discretion (Matias vs.
Gonzales, 101 Phil. 852).
4. T h e grounds for the r e m o v a l of the regular
a d m i n i s t r a t o r do not apply s t r i c t l y to the special
51
administrator (Roxas vs. Pecson, supra) as he may be

removed by the court on other grounds in its discretion
(Junquera vs. Borromeo, L-18498, Mar. 30, 1967).
5. The order appointing a special administrator is an

interlocutory order and is not appealable (Garcia vs. Flores,
101 Phil. 781; Alcasid, etc., et al. vs. Samson, 102 Phil.
735; see also Sec. l[e], Rule 109).
Sec. 2. Powers and duties of special administrator.

— Such special administrator shall take possession
and charge of the goods, chattels, rights, credits and
estate of the deceased a n d preserve the same for the
executor o r a d m i n i s t r a t o r a f t e r w a r d s a p p o i n t e d ,
and for that p u r p o s e may commence a n d maintain
suits a s a d m i n i s t r a t o r . H e m a y sell o n l y s u c h
perishable and other p r o p e r t y as the court o r d e r s
sold. A special administrator shall not be l i a b l e to
pay any debts of the deceased unless so o r d e r e d by
the court.
Sec. 3. When powers of special administrator cease.

Transfer of effects. Pending suits. — W h e n l e t t e r s
testamentary or of administration a r e g r a n t e d on
the estate of the deceased, the p o w e r s of the special
administrator shall cease, a n d he shall f o r t h w i t h
deliver to the executor or a d m i n i s t r a t o r the goods,
chattels, money, a n d estate of the deceased in his
hands. The executor or administrator may prosecute
to final j u d g m e n t suits commenced by such special
administrator.
NOTES
1. T h e special administrator has also the duty to

submit an inventory and to render an accounting of his
administration as required by the terms of his bond (see
Sec. 4, Rule 81).
52
RULE 80 SPECIAL ADMINISTRATOR SECS. 2-3
2. While a special administrator may commence and

maintain suits under Sec. 2, he cannot be sued by a creditor
for the payment of a debt of the deceased (De Gala vs.
Gonzales, et al., 53 Phil. 104). Such suit must await the
appointment of a regular administrator.
H o w e v e r , it was subsequently held that a special
administrator may be made a defendant in a suit against
the estate where the creditor would suffer the adverse
effects of the running of the statute of limitations against
them if the appointment is delayed (Anderson vs. Perkins,
L-15388, Jan. 31,1961). A mortgagee may bring an action
for the foreclosure of a mortgage of a property of the estate
against a special administrator (Liwanag, etc. vs. CA, et
al., L-20735, Aug. 14, 1965), otherwise the very purpose
for which the mortgage was constituted will be defeated.
Furthermore, Sec. 7 of Rule 86 provides for foreclosure as
one of the remedies of the mortgagee where the mortgagor
died (Liwanag, etc. vs. Reyes, etc., et al., L-19159, Sept. 19,
1964).
already distribution, which the special
administrator has no power to do.
53
R U L E 81
BONDS OF EXECUTORS A N D ADMINISTRATORS
Section 1. Bond to be given before issuance of letters.

Amount. Conditions. — B e f o r e an e x e c u t o r or
administrator enters upon the execution of his trust,
and letters testamentary or of administration issue,
he shall give a bond, in such sum as the court directs,
conditioned as follows:
(a) To make and return to the court, within three
(3) months, a true a n d complete i n v e n t o r y of all
goods, chattels, rights, credits, a n d estate of the
d e c e a s e d w h i c h shall come to his p o s s e s s i o n or
knowledge or to the possession of any other p e r s o n
for him;
( b ) To administer according to these rules, a n d ,
if an executor according to the w i l l of the testator,
all goods, chattels, rights, credits, a n d estate w h i c h
shall at any time come to his possession or to the
possession of any other p e r s o n for him, a n d f r o m
the proceeds to pay a n d discharge all debts, legacies,
and charges on the same, or such dividends t h e r e o n
as shall be decreed by the court;
( c ) T o r e n d e r a t r u e a n d j u s t a c c o u n t o f his
administration to the court w i t h i n one (1) y e a r a n d
at any other time w h e n r e q u i r e d by the court;
( d ) To p e r f o r m all o r d e r s of the court by him to
be performed.
Sec. 2. Bond of executor where directed in will. When

further bond required. — If the testator in his w i l l
directs that the executor serve without b o n d , or with
only his individual b o n d , he may be a l l o w e d by the
court to give b o n d in such sum a n d w i t h such surety
as the court approves conditioned only to p a y the
debts of the testator; b u t the court may r e q u i r e of
54
RULE 81 BONDS OF EXECUTORS, ETC. SECS. 3-4
the executor a f u r t h e r b o n d in case of a change in

his circumstances, or for other sufficient cause, with
the conditions n a m e d in the last p r e c e d i n g section.
NOTES
1. T h e bond posted by administrators and executors

is intended as an indemnity to the creditors, the heirs and
the estate. The court shall fix the amount thereof and hold
it accountable for breach of duty on the part of the
administrator or executor. T h e enforcement of such
liability may be sought by motion in the administration
proceedings (Mendoza vs. Pacheco, et al., 64 Phil. 134) or
in a separate civil action (Warner, Barnes & Co., Ltd. vs.
Luzon Surety Co., Inc., 95 Phil. 924).
2. Under Sec. 2, even if the testator has directed in

his will that his executor serve without bond, the court
may still require him to file a bond conditioned only to pay
the debts of the testator; and, thereafter, based on the
circumstances, the court may require further bond from
said executor to answer for breaches in his administration.
Sec. 3. Bonds of joint executors and administrators.

— W h e n two or more persons are appointed
executors or administrators the court may take a
separate b o n d f r o m each, or a joint b o n d from all.
Sec. 4. Bond of special administrator. — A special

administrator before entering upon the duties of his
trust shall give a b o n d , in such sum as the court di-
rects, conditioned that he will make and return a
true inventory of the goods, chattels, rights, cred-
its, a n d estate of the deceased which come to his
possession or knowledge, and that he will truly ac-
count for such as are received by him when required
by the court, and will deliver the same to the per-
son appointed executor or administrator, or such
other person as may be authorized to receive them.
55
R U L E 82
REVOCATION OF ADMINISTRATION,
DEATH, RESIGNATION A N D REMOVAL
OF EXECUTORS OR ADMINISTRATORS
Section 1. Administration revoked if will discovered.

Proceedings thereupon. — If a f t e r l e t t e r s of
administration have been granted on the estate of a
decedent as if he h a d d i e d intestate, his w i l l is
p r o v e d a n d a l l o w e d b y the c o u r t , the letters o f
a d m i n i s t r a t i o n shall b e r e v o k e d a n d all p o w e r s
t h e r e u n d e r cease, a n d the a d m i n i s t r a t o r s h a l l
forthwith s u r r e n d e r the letters to the court, a n d
r e n d e r his account within such time as the court
directs. P r o c e e d i n g s f o r the issuance of letters
testamentary or of administration u n d e r the w i l l
shall be as hereinbefore p r o v i d e d .
NOTE
1. It is only when the newly-discovered will has been

admitted to probate that the letters of administration may
be revoked by the probate court.
Sec. 2. Court may remove or accept resignation of

executor or administrator. Proceedings upon death,
resignation, or removal. — If an e x e c u t o r or
administrator neglects to r e n d e r his account a n d
settle the estate according to law, or to p e r f o r m an
o r d e r or j u d g m e n t of the court, or a duty expressly
p r o v i d e d by these rules, or absconds, or becomes
insane, o r o t h e r w i s e i n c a p a b l e o r u n s u i t a b l e t o
discharge the trust, the court may r e m o v e him, or,
in its discretion, may permit him to resign. W h e n
an executor or a d m i n i s t r a t o r dies, r e s i g n s , or is
removed the r e m a i n i n g executor or a d m i n i s t r a t o r
56
RULE 82 REVOCATION OF ADMINISTRATION, ETC. SECS. 3-4
m a y a d m i n i s t e r the trust a l o n e , unless the court

grants letters to someone to act w i t h him. If there
is no remaining executor or administrator,
administration may be granted to any suitable
person.
Sec. 3. Acts before revocation, resignation, or removal

to be valid. — T h e l a w f u l acts of an e x e c u t o r or
a d m i n i s t r a t o r b e f o r e the revocation of his letters
t e s t a m e n t a r y o r o f a d m i n i s t r a t i o n , o r b e f o r e his
r e s i g n a t i o n or r e m o v a l , shall have the like validity
as if there h a d b e e n no such revocation, resignation,
or removal.
Sec. 4. Powers of new executor or administrator.

Renewal of license to sell real estate. — T h e person to
w h o m letters testamentary or of administration are
g r a n t e d after the revocation of former letters, or the
death, resignation, or removal of a f o r m e r executor
o r a d m i n i s t r a t o r , s h a l l h a v e the l i k e p o w e r s t o
collect a n d settle the estate not administered that
the f o r m e r executor or administrator h a d , and may
prosecute or defend actions commenced by or
against the f o r m e r executor or administrator, and
h a v e execution of j u d g m e n t s recovered in the name
of such f o r m e r executor or administrator. An
a u t h o r i t y g r a n t e d b y t h e c o u r t t o the f o r m e r
executor or administrator for the sale or mortgage
of real estate may be r e n e w e d in favor of such person
without f u r t h e r notice or hearing.
NOTES
1. The mere fact that it was subsequently discovered

that the duly appointed administrator was indebted to the
decedent is not a ground for his removal, absent any other
circumstance indicative of bad faith or lack of integrity on
57
his part (Dalisay, etc. vs. Consolation, et al., L-44702,

July 80, 1979).
2. The fact that the administratrix was later held to
be without the right to intervene in the settlement of the
estate as an heir is not a ground for her removal as such
administratrix, since even a stranger can be appointed as
such (De Parreho vs. Aranzanso, L-27657, Aug. 30, 1982).
R U L E 83
INVENTORY AND APPRAISAL.

PROVISION FOR SUPPORT OF FAMILY
Section 1. Inventory and appraisal to be returned

within three months. — W i t h i n three (3) months after
his a p p o i n t m e n t every executor or administrator
s h a l l r e t u r n t o the c o u r t a t r u e i n v e n t o r y a n d
a p p r a i s a l of all the r e a l a n d p e r s o n a l estate of the
d e c e a s e d w h i c h h a s come into his possession o r
k n o w l e d g e . In the a p p r a i s e m e n t of such estate, the
court m a y o r d e r one or m o r e of the inheritance tax
a p p r a i s e r s to give his or their assistance.
NOTE
1. T h e 3-month p e r i o d p r o v i d e d h e r e i n is not
mandatory and the court retains jurisdiction even if the
inventory is filed after said period, but such delay, if not
satisfactorily explained, may be a ground for the removal
of the administrator under Sec. 2, Rule 82 (Sebial vs.
Sebial, et al., L-23419, June 27, 1975).
Sec. 2. Certain articles not to be inventoried. — The

w e a r i n g a p p a r e l of the surviving husband or wife
a n d minor children, the m a r r i a g e b e d and bedding,
a n d such provisions a n d other articles as will
necessarily be consumed in the subsistence of the
family of the deceased, u n d e r the direction of the
c o u r t , shall not be c o n s i d e r e d as assets, n o r
administered as such, and shall not be included in
the inventory.
Sec. 3. Allowance to widow and family. — T h e

w i d o w a n d m i n o r or incapacitated children of a
deceased person, during the settlement of the estate,
59
shall receive therefrom, under the direction of the

court, such allowance as are provided by law.
NOTES
1. Property claimed by third persons may be included

in the inventory as part of the assets of the estate and the
probate court may order such inclusion, but such order of
the probate court is only a prima facie determination and
does not preclude the claimants from maintaining an
ordinary civil action for the determination of title (Vda. de
Paz vs. Vda. de Madrigal, 100 Phil. 1085).
2. Sec. 3 allows support to be given to the surviving

spouse and the "minor or incapacitated children" of the
decedent during the settlement of the estate. On the other
hand, Art. 188 of the Civil Code permits such support to
the "children" of the deceased, without requiring that they
be minors or incapacitated. It was believed that such
allowances should include even the children of legal age as
the right and duty to support, especially the right to
education, subsist even beyond the age of majority
(Art. 290, Civil Code). This observation was subsequently
confirmed in Santero, et al. vs. CFI of Cavite, et al.
(G.R. Nos. 61700-03, Sept. 14, 1987), and is now explicitly
provided in A r t . 194 of the Family Code. At any rate, the
allowances for support are subject to c o l l a t i o n and
deductible from the share in the inheritance of said heirs
insofar as they exceed the fruits or rents pertaining to them
(see Lesaca vs. Lesaca, 91 Phil. 135).
3. The relevant provisions of the Civil Code were as

follows:
"Art. 180. T h e bed and b e d d i n g w h i c h t h e
spouses ordinarily use shall not be included in the
inventory. These effects, as well as the clothing for
their ordinary use, shall be delivered to the surviving
spouse."
60
RULE 83 INVENTORY A N D APPRAISAL. SECS 2-3
PROVISION FOR SUPPORT OF FAMILY
"Art. 188. From the common mass of property

support shall be given to the surviving spouse and to
the children during the liquidation of the inventoried
property and until what belongs to them is delivered;
but from this shall be deducted that amount received
for support which exceeds the fruits or rents pertaining
to them."
See, however, the changes effected by Arts. 102, 103,
129, 130, 132 and 133 of the Family Code.
61
R U L E 84
GENERAL POWERS A N D DUTIES

OF EXECUTORS A N D ADMINISTRATORS
Section 1. Executor or administrator to have access

to partnership books and property. How right enforced. —
The executor or administrator of the estate of a
deceased partner shall at all times have access to,
and may e x a m i n e a n d t a k e copies o f b o o k s a n d
papers relating to the partnership business, a n d may
examine and make invoices of the p r o p e r t y
belonging to such p a r t n e r s h i p ; a n d the s u r v i v i n g
partner or partners, on request, shall exhibit to him
all such books, papers, a n d p r o p e r t y in their h a n d s
o r control. O n the w r i t t e n a p p l i c a t i o n o f s u c h
executor or administrator, the court h a v i n g
j u r i s d i c t i o n o f the e s t a t e m a y o r d e r a n y s u c h
surviving p a r t n e r or p a r t n e r s to freely p e r m i t the
exercise of the rights, a n d to e x h i b i t the b o o k s ,
papers, and property, as in this section p r o v i d e d , a n d
may punish any partner failing to do so for contempt.
Sec. 2. Executor or administrator to keep buildings

in repair. — An e x e c u t o r or a d m i n i s t r a t o r s h a l l
maintain in tenantable r e p a i r the houses a n d other
structures a n d fences b e l o n g i n g to the estate, a n d
d e l i v e r the s a m e i n such r e p a i r t o the h e i r s o r
devisees w h e n directed so to do by the court.
Sec. 3. Executor or administrator to retain whole

estate to pay debts, and to administer estate not willed. —
An executor or administrator shall h a v e the r i g h t
to the possession and management of the real as well
as the personal estate of the deceased so l o n g as it
is necessary for the payment of the debts a n d the
expenses of administration.
62
RULE 84 GENERAL POWERS AND DUTIES SEC. 3
NOTES
1. An administrator or executor has all the powers

necessary for the administration of the estate and which
p o w e r s he can exercise without leave of court. T h e
constitution of a lease over property of the estate is an act
of administration and leave of court is not required (see
San Diego vs. Nombre, et al., L-19265, May 29, 1964).
A n y interested party who desires to impugn the same must
do so in an ordinary civil action as the probate court has
no jurisdiction over the lessee (Jocson de Hilado vs. Nava,
69 Phil. 1; San Diego vs. Nombre, et al., supra).
2. If the lease contract exceeds one year, the same

is no longer considered a mere act of administration
(Art. 1878, Civil Code), and leave of court should ordinarily
be required.
A view is held, however, that the aforesaid provisions
of Art. 1878 of the Civil Code on agency should not apply
to leases entered into by an executor or administrator,
under the theory that they represent not only the estate
but also the parties interested therein, that they are
required to file a bond and that their acts are subject to
specific provisions of law and orders of the probate court,
which circumstances are not true with respect to agents
(3 Moran, Comments on the Rules of Court, 1980 ed., pp.
461-462).
3. Regarding the sale, mortgage or other encumbrance

on property of the estate, the same are regulated by
Rule 89.
63
R U L E 85
ACCOUNTABILITY AND COMPENSATION

OF EXECUTORS A N D ADMINISTRATORS
Section 1. Executor or administrator chargeable

with all estate and income. — E x c e p t as o t h e r w i s e
expressly provided in the following sections, every
e x e c u t o r o r a d m i n i s t r a t o r i s c h a r g e a b l e i n his
account with the whole of the estate of the deceased
which has come into his possession, at the v a l u e of
the appraisement contained in the inventory; w i t h
all the interest, profit, a n d income of such estate;
and with the proceeds of so much of the estate as is
sold by him, at the price at w h i c h it w a s sold.
Sec. 2. Not to profit by increase or lose by decrease

in value. — No executor or administrator shall profit
by the increase, or suffer loss by the d e c r e a s e or
destruction, without his fault, of any p a r t of the
estate. He must account for the excess w h e n he sells
any p a r t of the estate for m o r e t h a n the
appraisement, a n d if any is sold f o r less t h a n the
appraisement, he is not responsible f o r the loss, if
the sale has b e e n justly made. If he settles any claim
against the estate for less than its n o m i n a l v a l u e ,
he is entitled to c h a r g e in his a c c o u n t o n l y the
amount he actually p a i d on the settlement.
Sec. 3. When not accountable for debts due the

estate. — N o e x e c u t o r o r a d m i n i s t r a t o r s h a l l b e
a c c o u n t a b l e f o r d e b t s d u e the d e c e a s e d w h i c h
r e m a i n uncollected without his fault.
Sec. 4. Accountable for income from realty used by

him. — If the e x e c u t o r or a d m i n i s t r a t o r uses or
occupies any p a r t of the r e a l estate himself, he shall
64
RULE 85 ACCOUNTABILITY AND COMPENSATION SECS. 5-6, 7
account f o r it as may be a g r e e d u p o n b e t w e e n him

a n d the parties interested, or adjusted by the court
w i t h their assent; a n d if the p a r t i e s do not a g r e e
u p o n the sum to be a l l o w e d , the same may be
a s c e r t a i n e d by the court, w h o s e determination in
this respect shall be final.
Sec. 5. Accountable if he neglects or delays to raise

or pay money. — W h e n an executor or administrator
neglects or u n r e a s o n a b l y delays to raise money, by
collecting the debts or selling the r e a l or personal
estate of the deceased, or neglects to pay over the
m o n e y he h a s in his h a n d s , a n d the v a l u e of the
estate is t h e r e b y lessened or unnecessary cost or
interest accrues, or the persons interested suffer
loss, the same shall be deemed waste a n d the damage
sustained m a y b e c h a r g e d a n d a l l o w e d against him
in his account, a n d he shall be liable therefor on his
bond.
Sec. 6. When allowed money paid as costs. — The

a m o u n t p a i d b y a n executor o r administrator for
costs a w a r d e d against him shall be a l l o w e d in his
administration account, unless it a p p e a r s that the
action or p r o c e e d i n g in w h i c h the costs are taxed
w a s prosecuted or resisted without just cause, and
not in g o o d faith.
NOTE
1. These sections provide for the accountability of

administrators or executors with respect to their omissions
or for acts performed by them in the administration of the
estate.
Sec. 7. What expenses and fees allowed executor or

administrator. Not to charge for services as attorney.
Compensation provided by will controls unless renounced.
65
— An executor or administrator shall be allowed the

necessary expenses in the care, management, and
settlement of the estate, and for his services, four
pesos per day for the time actually a n d necessarily
employed, or a commission u p o n the v a l u e of so
much of the estate as comes into his possession and
is finally disposed of by him in the payment of debts,
expenses, legacies, o r d i s t r i b u t i v e s h a r e s , o r b y
delivery to heirs or devisees, of two p e r centum of
the first five thousand pesos of such value, one p e r
centum of so much of such v a l u e as exceeds five
thousand pesos and does not exceed thirty thousand
pesos, one-half p e r centum of so much of such value
as exceeds thirty thousand pesos and does not exceed
one h u n d r e d thousand pesos, a n d o n e - q u a r t e r p e r
centum of so much of such v a l u e as exceeds one
h u n d r e d thousand pesos. B u t in any special case,
w h e r e the estate is l a r g e , a n d the settlement has
been attended with great difficulty, a n d has r e q u i r e d
a high degree of capacity on the p a r t of the executor
or administrator, a g r e a t e r sum may be a l l o w e d . If
objection to the fees a l l o w e d be taken, the allowance
may be r e e x a m i n e d on a p p e a l .
If there are two or more executors or

a d m i n i s t r a t o r s , the c o m p e n s a t i o n shall be
apportioned a m o n g them by the court a c c o r d i n g to
the services actually r e n d e r e d by them respectively.
W h e n the e x e c u t o r or a d m i n i s t r a t o r is an
attorney, he shall not c h a r g e against the estate any
professional fees for legal services r e n d e r e d by him.
W h e n the deceased by w i l l m a k e s some other
provision for the compensation of his executor, that
provision shall be a full satisfaction for his services
unless by a written instrument filed in the court he
renounces all claim to the compensation p r o v i d e d
by the will.
66
RULE 85 ACCOUNTABILITY AND COMPENSATION SEC. 7
NOTES
1. The administrator or executor is entitled to charge

in his accounts all expenses of administration incurred by
him.
T h e following items have been held not to be proper
expenses of administration and, therefore, not chargeable
against the estate:
(a) The services rendered by an administrator in favor
of an heir which services were not beneficial to the estate
(Sison vs. Teodoro, 100 Phil. 1055);
(b) Premiums for his bond (Sison us. Teodoro, supra);
(c) Expenses for the repair of property of the estate
being occupied and used by him (De Borja us. De Borja,
101 Phil. 911);
(d) Expenses for the keeping of ordinary records and
receipts involved in his administration work (De Borja vs.
De Borja, supra); and
( e ) Losses incurred in the conduct of business with
the use of the funds of the estate (Wilson vs. Rear, 55 Phil.
44).
2. W h e r e an a t t o r n e y r e n d e r s s e r v i c e s to the
administrator or executor personally to aid in the execution
of his trust, the administrator or executor is liable for the
fees, but he can move for reimbursement and charge such
fees as expenses of administration where the same is
reasonable and proved beneficial to the estate (Uy Tioco
vs. Imperial, etc., et al., 53 Phil. 802).
Where, however, the attorney's services were rendered
in a litigation involving such administrator or executor in
his capacity as trustee of the estate and for the protection
of the interests of such estate, the attorney's fee is
chargeable to the estate (Rodriguez vs. Ynza, 97 Phil. 1003).
67
3. To recover attorney's fees, the attorney may either

bring an independent action personally against the
executor or administrator, or file a p e t i t i o n in the
administration proceedings for the probate court to allow
the same and to direct the payment of his fee as an expense
of administration (Aldamiz, etc. vs. Judge of the CFI of
Mindoro, et al, 85 Phil 228).
4. The compensation of the executor shall primarily

be that fixed in the will and if there is no such provision or
he renounces the same, then it will be as provided in
Sec. 7.
Sec. 8. When executor or administrator to render

account. — E v e r y e x e c u t o r or a d m i n i s t r a t o r shall
r e n d e r an account of his administration w i t h i n one
(1) year from the time of r e c e i v i n g letters
testamentary or of administration, unless the court
otherwise directs because of extensions of time for
presenting claims against, or p a y i n g the debts of,
the estate, or for disposing of the estate; a n d he shall
r e n d e r such f u r t h e r a c c o u n t s a s t h e c o u r t m a y
r e q u i r e until the estate is w h o l l y settled.
Sec. 9. Examinations on oath with respect to

account. — T h e court may examine the executor or
administrator upon oath with respect to every
matter relating to any account r e n d e r e d by him, a n d
shall so examine him as to the c o r r e c t n e s s . o f his
account b e f o r e the same is a l l o w e d except w h e n no
objection is m a d e to the a l l o w a n c e of the account
and its correctness is satisfactorily established by
competent proof. T h e heirs, legatees, distributees,
a n d c r e d i t o r s o f the estate s h a l l h a v e the s a m e
privilege as the executor or a d m i n i s t r a t o r of b e i n g
examined on oath on any matter relating to an
administration account.
68
RULE 85 ACCOUNTABILITY AND COMPENSATION SECS. 10-11
Sec. 10. Account to be settled on notice. — B e f o r e

the a c c o u n t o f a n e x e c u t o r o r a d m i n i s t r a t o r i s
a l l o w e d , notice shall be given to persons interested
of the time a n d place of e x a m i n i n g a n d a l l o w i n g the
same; a n d such notice may be given personally to
such p e r s o n s interested or by advertisement in a
n e w s p a p e r o r n e w s p a p e r s , o r b o t h , a s the court
directs.
Sec. 11. Surety on bond may be party to accounting.

— U p o n the settlement of the account of an executor
or administrator, a p e r s o n liable as surety in respect
to such account may, u p o n application, be admitted
as p a r t y to such accounting.
NOTE
1. Even if the final accounts of the executrix had

already been approved but said executrix subsequently
received funds of the estate, she must account for the same
and this duty cannot be waived by the act of the heirs in
receiving dividends from said funds without requiring said
accounting (Tumang us. Laguio, et al., G.R. No. 50277,
Feb. 14, 1980).
69
R U L E 86
CLAIMS A G A I N S T ESTATE
not the executors or administrators
Section 1. Notice to creditors to be issued by court.
— Immediately after granting letters testamentary
or of administration, the court shall issue a notice
requiring all persons having money claims against
the decedent to file them in the office of the clerk
of said court.
Sec. 2. Time within which claims shall be filed. —

In the notice p r o v i d e d in the p r e c e d i n g section, the
court shall state the time for filing of claims against
the estate, which shall not be m o r e than twelve (12)
nor less than six (6) months after the date of the
first publication of the notice. H o w e v e r , at any time
before an order of distribution is entered, on
application of a creditor w h o has failed to file his
claim w i t h i n the time previously limited, the court
may, f o r c a u s e s h o w n a n d o n such t e r m s a s a r e
equitable, a l l o w such claim to be filed w i t h i n a time
not exceeding one (1) month.
NOTES
1. The period fixed by Sec. 2 for the filing of claims is

sometimes referred to as the "statute of non-claims" and
supersedes the ordinary statute of limitations (Santos vs.
Manarang, 27 Phil. 209). The period for the filing of such
claims starts to run from the date of the first publication
of the notice referred to in Sec. 1 and runs even against
the State (Tan Sen Guan vs. Go Siu San, 47 Phil. 89).
2. The provision in Sec. 2, Rule 86 on the period of

the statute of non-claims means that the filing of claims
contemplated therein should be during a period of six
months starting from the sixth month after the date of the
70
RULE 86 CLAIMS AGAINST ESTATE SECS. 3-4
first publication of the notice down to the twelfth month.

Within the range of said period, the probate court is
permitted to set the period for filing of claims and the
period once fixed by the court is mandatory (Heirs of
Pizarro, Sr. vs. Consolation, et al., G.R. No. 51278, May 8,
1988).
3. The court, for good cause shown, may grant a one-

month period for a creditor to file a claim which he failed
to file during the original period granted for the filing of
claims. Such motion for leave to file a claim beyond the
o r i g i n a l period may be filed at any time during the
administration proceedings provided no order of
distribution has yet been entered (Aquino, et al. vs. Aquino,
103 Phil. 1107; cf. Danan, et al. vs. Buencamino, etc.,
et al, G.R. No. 57205, Dec. 14, 1981). Sec. 2 should not be
interpreted to mean that the one-month period commences
to run from the expiration of the original period for the
filing of claims. What it means is that said claims must be
filed within a time not exceeding one month from the order
of the court allowing the filing of such particular claim
(Barredo vs. CA, et al, L-17863, Nov. 28, 1962, modifying
the rule in Edmands vs. Phil. Trust Co., 87 Phil. 405, which
held that the court could only grant an extension within
one month from the expiration of the original twelve-month
period).
Sec. 3. Publication of notice to creditors. — Every

executor or administrator shall, immediately after
the notice to creditors is issued, cause the same to
b e p u b l i s h e d t h r e e ( 3 ) w e e k s successively i n a
n e w s p a p e r of general circulation in the province,
and to be posted for the same period in four public
places in the province and in two public places in
the municipality w h e r e the decedent last resided.
Sec. 4. Filing copy of printed notice. — Within ten

(10) days after the notice has been published and
71
posted in accordance with the preceding section, the

executor or administrator shall file or cause to be
filed in the c o u r t a p r i n t e d copy of the notice
accompanied w i t h an affidavit setting f o r t h the
dates of the first and last publication thereof a n d
the name of the n e w s p a p e r in w h i c h the same is
printed. newspaper clippings
NOTES
1. A notice to creditors to file their claims is not proper

if only a special administrator has been appointed (Balanay,
Jr. vs. Martinez, et al., L-39247, June 27,1975) as a special
administrator is generally not empowered to pay the debts
of the deceased (Sec. 2, Rule 80) and his bond, unlike that
of a regular administrator, is not conditioned upon the
payment of such debts (Sec. 4, Rule 81).
2. The publication of the notice to the creditors is

constructive notice to all, hence a creditor cannot be
permitted to file his claim beyond the period fixed in said
notice on the bare ground that he had no knowledge of the
administration proceedings (Villanueva vs. PNB, L-18403,
Sept. 30,1963), since the proceeding for the filing of claims
is in rem (Bautista, et al. vs. De Guzman, et al., infra).
3. As the period for the filing of claims starts to run

from the first publication of the notice to creditors, unless
such publication is effected by the administrator or the
executor, the result would be to correspondingly extend
the time for the presentation of claims.
4. Where a claimant with a claim under a judgment

for money against the deceased files a petition for the
issuance of letters of administration over the estate of the
decedent within the ten-year period from the finality of its
judgment, and after said ten-year period filed a claim
against the estate of the deceased under administration,
said claim retroacts to the date of the filing of the petition
72
for letters of administration and, therefore, has not pre-

scribed (PNB us. De Villarin, et al., L-41036, Sept. 5,1975).
Sec. 5. Claims which must be filed under the notice.

If not filed, barred; exceptions. — A l l claims f o r money
against the decedent, arising f r o m contract, express
or implied, w h e t h e r the same be due, not due, or
c o n t i n g e n t , all c l a i m s f o r f u n e r a l e x p e n s e s a n d
expenses for the last sickness of the decedent, a n d
j u d g m e n t f o r money against the decedent, must be
filed w i t h i n the time limited in the notice; otherwise
they a r e b a r r e d forever, except that they may be set
f o r t h a s c o u n t e r c l a i m s i n a n y a c t i o n t h a t the
e x e c u t o r o r a d m i n i s t r a t o r m a y b r i n g against the
claimants. W h e r e an executor or administrator
commences an action, or prosecutes an action
a l r e a d y commenced by the deceased in his lifetime,
the d e b t o r may set forth by a n s w e r the claims he
has against the decedent, instead of presenting them
independently to the court as h e r e i n p r o v i d e d , a n d
mutual claims may be set off against each other in
such action; a n d if final j u d g m e n t is r e n d e r e d in
f a v o r of the defendant, the amount so determined
shall be c o n s i d e r e d the true b a l a n c e against the
estate, a s t h o u g h the c l a i m h a d b e e n p r e s e n t e d
d i r e c t l y b e f o r e the c o u r t i n the a d m i n i s t r a t i o n
proceedings. Claims not yet due, or contingent, may
be a p p r o v e d at their present value.
Sec. 6. Solidary obligation of decedent. — W h e r e

the o b l i g a t i o n of the d e c e d e n t is s o l i d a r y w i t h
another debtor, the claim shall be filed against the
decedent as if he w e r e the only debtor, without
p r e j u d i c e to the r i g h t of the estate to r e c o v e r
c o n t r i b u t i o n f r o m the o t h e r debtor. In a j o i n t
o b l i g a t i o n o f the d e c e d e n t , the c l a i m s h a l l b e
confined to the portion belonging to him.
73
NOTES
1. The claims referred to in Sec. 5 must be for money

which are not secured by a lien against property of the
estate (see Olave vs. Canlas, L-12709, Feb. 28, 1962). If
the claim is for the recovery of real or personal property
from the estate or the enforcement of any lien thereon, an
action should be instituted for that purpose against the
executor or administrator (Sec. 1, Rule 87; see Sec. 20,
Rule 3, and the notes thereunder). Furthermore, these
claims must have arisen from the liability contracted by
the decedent before his death and money claims arising
after his death cannot be presented, except funeral
expenses and expenses of his last illness.
2. The first type of money claims required to be filed

under this section is one arising from contract, express or
implied, which was entered into by the decedent in his
lifetime. Consequently, a money claim against the estate
arising from a crime or a quasi-delict committed by the
decedent is not included in the concept of claims which
have to be filed under this Rule (Aguas, et al. vs. Llemos,
et al., L-18107, Aug. 30, 1962), but should be the subject
of an action against the executor or administrator (see
Sec. 1, Rule 87) or against the heirs (Belamala vs. Polinar,
L-24098, Nov. 18, 1967). law
Also, claims by the Government for unpaid taxes, filed
within the period of limitations prescribed in the National
Internal Revenue Code, are not covered by the statute of
non-claims as these are monetary obligations created by
law (Vera, et al. vs. Fernandez, et al., L-31364, Mar. 30,
1979). Claims for taxes due and assessed after the death
of the decedent need not even be presented in the form of
a claim; the probate court may just direct the executor or
administrator to pay the same (Pineda vs. CFIofTayabas,
et al., 52 Phil. 802). In fact, even after the distribution of
the estate, claims for taxes may be enforced against the
distributees in proportion to their shares in the inheritance
74
(Government vs. Pamintuan, 55 Phil. 13; see Commissioner

of Internal Revenue vs. Pineda, etc., L-22734, Sept. 15
1967).
However, a claim based upon a quasi-contract shall be
deemed included in the concept of claims under Sec. 5 which
speaks of "implied" contracts. Before its amendment,
Sec. 1(a), Rule 57 on preliminary attachment also referred
to causes of action "arising from contract, express or
implied." It has been held thereunder that contracts,
express or implied, include all purely personal obligations
other than those the source of which, is a delict or a tort.
Implied contracts include liabilities both ex lege and ex
quasi contractu, hence the obligation to return money
gained at gambling is ex lege and is an implied contract
(Leung Ben vs. O'brien, et al:, 38 Phil. 182). There appears
to be no reason for not adopting the same concept for the
implied contract referred to in Sec. 5 of this Rule.
3. A contingent claim is one which depends for its

demandability upon the happening of a future uncertain
e v e n t . T h i s would include obligations subject to a
suspensive condition as understood in civil law. Claims
which are not yet due, or are contingent, may be approved
at their present value but as no payment thereof can yet
be authorized by the court until their demandability arises,
a portion of the estate may be reserved for the payment of
such claims as provided in Sees. 4 and 5, Rule 88.
4. Claims not filed within the period for the filing of

claims are barred, but if the claimant is sued by the
administrator or executor, either within the period for the
filing of claims or thereafter, such claim may be availed of
by the defendant as a counterclaim and if he proves the
same, he may recover thereon against the estate.
5. A money claim upon a liability contracted by the
deceased must be duly filed even if the deceased, in his
will, acknowledged and ordered the payment of such debt
75
(Gotamco vs. Chan Seng, et al., 46 Phil. 542). However,

under certain circumstances, such filing may be waived by
the act or conduct of the estate's representative, as where
after the death of the defendant in a civil case he was
substituted by the administrator who proceeded to trial
and even appealed from the decision therein, in which case
the estate is deemed to have notice of such claim. The fact
that plaintiffs claim should have been litigated in the
probate court does not affect the validity of the decision
since the court therein had jurisdiction over the subject
matter and the parties (Ignacio, et al. vs. Pampanga Bus
Co., Inc., L-18936, May 23, 1967).
6. Under the former Sec. 21 of Rule 3, where the

defendant dies before final judgment in the Court of First
Instance and the action is for the recovery of money, debt
or interest thereon, the action shall be dismissed and the
plaintiff should file his claim in the administration
proceeding over the estate of the defendant. Under the
present Sec. 20 of said Rule, the case shall not be dismissed
but shall continue until entry of judgment.
If at the time of the death of the decedent, an action is
pending against him but not for the primary purpose of
recovery of money, debt or interest, his heirs or other legal
representatives will merely be substituted for the decedent
in said action without the appointment of an executor or
administrator (Sec. 16, Rule 3).
If final judgment had already been rendered against
the decedent prior to his death, but without levy on
execution having been effected against his property, such
judgment for a sum of money must also be filed as a claim
against the estate in the manner provided by this Rule. If
levy had already been made before his death, execution
shall proceed (Sec. 7[c], Rule 39).
However, if the final judgment rendered against the
decedent in his lifetime is for the recovery of real or
personal property other than money, or the enforcement
76
RULE 86 CLAIMS AGAINST ESTATE SEC. 7
of a lien thereon, then the claimant has merely to obtain a

writ of execution for enforcement against the executor,
administrator or successor-in-interest of the deceased (see
Sec. 7[b], Rule 39).
7. Where the defendant dies while the action for a sum

of money against him is pending in the Court of Appeals,
he shall be substituted therein by his legal representative
but the final judgment of the appellate court cannot be
enforced by a writ of execution but should be filed in the
probate court as a money claim in accordance with Sec. 5,
Rule 86 (Paredes, et al. vs. Moya, et al., L-38051, Dec. 26,
1973).
8. An action for a sum of money based on culpa

contractual for the death of a passenger cannot be
maintained against the heirs of the bus operator who had
died thereafter. Plaintiff heirs should have filed their
claims against, and in the settlement of, the estate of the
deceased operator since such claims were based on a
contract of carriage. Even if the action was filed after the
settlement of the estate of the deceased operator, neither
can the suit be maintained against his heirs, as the
distributees of his estate, since that may be done only if a
contingent claim had been filed in the estate settlement in
accordance with Sec. 5, Rule 88 (De Bautista, et al. vs. De
Guzman, et al., L-28298, Nov. 25, 1983).
Sec. 7. Mortgage debt due from estate. — A creditor

h o l d i n g a claim against the deceased secured by
m o r t g a g e or other collateral security, may a b a n d o n
the security a n d prosecute his claim in the manner
p r o v i d e d i n this r u l e , a n d s h a r e in the g e n e r a l
distribution of the assets of the estate; or he may
foreclose his mortgage or realize upon his security,
by action in court, m a k i n g the e x e c u t o r or
administrator a party defendant, and if there is a
j u d g m e n t f o r a deficiency, after the sale of the
77
mortgaged premises, or the property pledged, in the

foreclosure or other proceedings to realize upon the
security, he may claim his deficiency j u d g m e n t in
the manner provided in the preceding section; or
he may rely upon his mortgage or other security
alone, and foreclose the same at any time w i t h i n the
period of the statute of limitations, and in that event
he shall not be admitted as a creditor, a n d shall
receive no share in the distribution of the other
assets of the estate; but nothing h e r e i n contained
shall prohibit the executor or administrator f r o m
redeeming the property m o r t g a g e d or p l e d g e d , by
paying the debt for which it is held as security, u n d e r
the direction of the court, if the court shall a d j u d g e
it to be for the best interest of the estate that such
redemption shall be m a d e .
NOTES
1. This section provides for the three alternative

remedies available to a mortgage creditor upon the death
of the mortgagor. Construing a similar provision under the
prior legislation (Sec. 708, Act No. 190 [Code of Civil
Procedure]), it was held that the mortgage creditor can avail
of only one of the three remedies and if he fails to recover
under that remedy he can not avail of any of the other two
remedies (Osorio, etc. vs. San Agustin, etc., 25 Phil. 404;
Veloso vs. Heredia, etc., 33 Phil. 306; Bachrach Motor Co.,
Inc. vs. Icarangal, et al., 68 Phil. 287).
2. The first option granted to the mortgage creditor

is to abandon his security and prosecute his claim in the
manner provided under this Rule. By filing his claim
against the estate as a money claim, he is deemed to have
abandoned the mortgage and he can not thereafter file a
foreclosure suit in the event he fails to recover his money
claim against the estate (Veloso vs. Heredia, etc., supra).
78
RULE 86 CLAIMS AGAINST ESTATE SEC. 7
3. jThe second alternative is for the mortgage creditor

to institute a foreclosure suit and recover upon the security.
T h e foreclosure suit should be against the executor or
administrator as party defendant. If the creditor fails to
obtain full recovery of his claim, he may obtain a deficiency
judgment and file it as a claim against the estate in the
manner provided by this Rule (Reyes vs. Rosenstock, 47
Phil. 784), provided that he does so within the period for
the filing of claims against the estate, otherwise it will be
barred (Bank of the Phil. Islands vs. V. Concepcion e Hijos,
Inc., et al., 53 Phil. 806). Consequently, the safer recourse
is for the mortgage creditor to file a claim, for any probable
deficiency, within the period for filing claims. It has been
held that a deficiency judgment is a contingent claim (see
First National City Bank of New York vs. Cheng Tan,
L-14234, Feb. 28, 1962; Soriano vs. Parsons Hardware Co.,
Inc., L-24008, Aug. 31, 1970).
4.-The third recourse of the mortgage creditor is to

rely solely upon his mortgage and foreclose the same at
any time within the statute of limitations. If at the time
he files the foreclosure suit the administration proceedings
are still pending, the executor or administrator shall be
made the party defendant. However, if at the time of the
foreclosure suit there has already been an order of
distribution, then the party defendants should be the heirs
to whom the mortgaged property has been awarded (see
Fernandez vs. Aninias, 57 Phil. 737). This third mode
includes extrajudicial foreclosure and with the same
consequences as a judicial foreclosure under such third
mode. In that contingency, whether the foreclosure is
judicial or extrajudicial, the mortgage creditor waives any
further deficiency claim (Phil. National Bank vs. CA, et
al., G.R. No. 121597, June 29, 2001).
5. Where the mortgagor died during the pendency of

a judicial foreclosure suit against him, the decision therein
shall be enforced by the trial court by writ of execution in
79
the foreclosure proceeding. Such enforcement cannot be

delegated to the probate court handling the settlement of
the estate of the decedent, since the probate court, as a
court of limited jurisdiction, has no authority to enforce a
mortgage lien (Manalansan, et al. vs. Castaheda, Jr., etc.,
et al., L-43607, June 27, 1978). See Note 13 under Sec. 2,
Rule 73.
6. It has been held that the mortgagee can also resort
to preliminary attachment of sufficient property of the
mortgagor where the mortgaged property is insufficient to
satisfy the mortgage account and the properties of the
mortgagor are being disposed of in fraud of creditors (Hijos
De I. De la Rama vs. Sajo, 45 Phil. 703; De los Reyes vs.
CFI ofBatangas, et al, 55 Phil. 408).
Sec. 8. Claim of executor or administrator against

an estate. — If the executor or a d m i n i s t r a t o r h a s a
claim against the estate he represents, he shall give
notice thereof, in writing, to the court, a n d the court
shall appoint a special administrator, w h o shall, in
the adjustment of such claim, h a v e the same p o w e r
a n d be subject to the same liability as the g e n e r a l
administrator or executor in the settlement of other
claims. T h e court may o r d e r the e x e c u t o r or
administrator to p a y to the special a d m i n i s t r a t o r
necessary funds to d e f e n d such claim.
NOTE
1. T h i s section provides for the second instance

wherein a special administrator may be appointed by the
court. The special administrator shall have authority to
act o n l y w i t h r e s p e c t t o t h e c l a i m o f t h e r e g u l a r
administrator or the executor.
Sec. 9. How to file a claim. Contents thereof. Notice

to executor or administrator. — A claim m a y be filed by
80
RULE 86 CLAIMS AGAINST ESTATE SEC 10
d e l i v e r i n g the same w i t h the necessary vouchers to

the clerk of court a n d by serving a copy thereof on
the e x e c u t o r o r a d m i n i s t r a t o r . I f the c l a i m b e
f o u n d e d on a b o n d , bill, note, or any other instru-
ment, the o r i g i n a l n e e d not be filed, b u t a copy
thereof w i t h all endorsements shall be attached to
the claim a n d filed therewith. On d e m a n d , however,
of the executor or administrator, or by o r d e r of the
c o u r t o r j u d g e , the o r i g i n a l s h a l l b e e x h i b i t e d ,
unless it be lost or d e s t r o y e d , in w h i c h case the
claimant must accompany his claim w i t h affidavit
or affidavits containing a copy or particular
description of the instrument a n d stating its loss or
d e s t r u c t i o n . W h e n the c l a i m i s d u e , i t must b e
supported by affidavit stating the amount justly due,
that no payments h a v e b e e n made thereon which are
not credited, a n d that there a r e no offsets to the
same to the k n o w l e d g e of the affiant. If the claim is
not d u e , or is contingent, w h e n filed, it must also be
s u p p o r t e d by affidavit stating the p a r t i c u l a r s
thereof. W h e n the affidavit is m a d e by a p e r s o n
other t h a n the claimant, he must set forth therein
the r e a s o n w h y it is not m a d e by the claimant. T h e
claim once filed shall be attached to the record of
the case in w h i c h the letters testamentary or of
administration w e r e issued, although the court, in
its discretion, a n d as a matter of convenience, may
order all the claims to be collected in a separate folder.
Sec. 10. Answer of executor or administrator. Off-

sets. — Within fifteen (15) days after service of a copy
of the claim on the executor or administrator, he
shall file his a n s w e r admitting or denying the claim
specifically, a n d setting forth the substance of the
matters which are relied upon to support the admis-
sion or denial. If he has no knowledge sufficient to
enable him to admit or deny specifically, he shall
81
tantamount to denial
state such want of knowledge. The executor or ad-
ministrator in his answer shall allege in offset any
claim which the decedent before death h a d against
the claimant, and his failure to do so shall b a r the
claim forever. A copy of the a n s w e r shall be served
by the executor or administrator on the claimant.
The court in its discretion may extend the time for
filing such answer. like a compulsory counter-claim.
not a permissive counter-claim.
Sec. 11. Disposition of admitted claim. — A claim
admitted entirely by the executor or administrator
shall immediately be submitted by the clerk to the
court w h o may a p p r o v e the same without hearing;
but the court, in its discretion, b e f o r e a p p r o v i n g the
claim, may o r d e r that k n o w n h e i r s , l e g a t e e s , o r
devisees be notified a n d h e a r d . If u p o n h e a r i n g , an
heir, legatee, or devisee opposes the claim, the court
may, in its discretion, a l l o w him fifteen (15) days to
file an a n s w e r to the claim in the m a n n e r p r e s c r i b e d
in the p r e c e d i n g section.
Sec. 12. Trial of contested claim. — U p o n the filing

of an a n s w e r to a claim, or u p o n the e x p i r a t i o n of
the time for such filing, the clerk of court shall set
the claim for trial w i t h notice to b o t h parties. T h e
court may r e f e r the claim to a commissioner.
usually the clerk of court.
Sec. 13. Judgment appealable. — T h e j u d g m e n t of
the court a p p r o v i n g or d i s a p p r o v i n g a claim, shall
be filed w i t h the r e c o r d of the a d m i n i s t r a t i o n
p r o c e e d i n g s w i t h notice t o b o t h p a r t i e s , a n d i s
appealable as in o r d i n a r y cases. A j u d g m e n t against
the executor or administrator shall be that he pay,
in due course of administration, the amount
ascertained to be due, and it shall not create any
lien u p o n the p r o p e r t y of the estate, or give to the
j u d g m e n t creditor any priority of payment.
82
CLAIMS AGAINST ESTATE
SEC. 14
RULE 86
Sec. 14. Costs. — W h e n the executor or adminis-

trator, in his answer, admits a n d offers to pay p a r t
of a claim a n d the claimant refuses to accept the
amount offered in satisfaction of his claim, if he fails
to o b t a i n a m o r e f a v o r a b l e j u d g m e n t , he cannot
r e c o v e r costs, b u t m u s t p a y t o t h e e x e c u t o r o r
administrator costs from the time of the offer. W h e n
a n a c t i o n c o m m e n c e d a g a i n s t the d e c e a s e d f o r
m o n e y has b e e n d i s c o n t i n u e d a n d the claim
e m b r a c e d therein presented as in this rule provided,
the p r e v a i l i n g p a r t y shall be a l l o w e d the costs of his
action up to the time of its discontinuance.
NOTES
1. In view of the provisions of Sec. 9 of this Rule, it

would appear that if there is no instrument evidencing the
debt of the decedent, and no writing is offered as proof
thereof, the claim cannot be proved. This appears to be
sustained by Sec. 23, Rule 130, also known as the Dead
Man Statute, which disqualifies surviving parties under
the circumstances provided therein from testifying to any
matter of fact occurring before the death of the decedent.
It is assumed, however, that said provision should not apply
to money claims for the funeral expenses or for the last
sickness of the deceased as these are claims arising after
his death.
2. A probate court has no jurisdiction to entertain a

claim in favor of the estate against a third person as the
same should be the subject of an ordinary action generally
to be prosecuted by the executor or administrator under
the provisions of Sec. 2, Rule 87. The exception to this is
provided by Sec. 10 of this Rule which authorizes the
executor or administrator to interpose any counterclaim
in offset of a claim against the estate. Such counterclaim,
regardless of its basis, is treated like a compulsory
83
counterclaim since the failure to file it shall bar the claim

forever.
3. While Sec. 13 of this Rule provides that a judgment
of the probate court approving or disapproving a claim shall
be "appealable as in ordinary cases," B.E Big. 129, although
dispensing with a record on appeal in appeals from judg-
ments in ordinary actions, still retains that requirement
in appeals in special proceedings and provides for a 30-day
reglementary period (Sees. 2[a] and 3, Rule 41).
R U L E 87
ACTIONS BY A N D AGAINST EXECUTORS

AND ADMINISTRATORS
Section 1. Actions which may and which may not be

brought against executor or administrator. — No action
u p o n a claim f o r the r e c o v e r y of money or debt or
interest t h e r e o n shall be c o m m e n c e d against the
e x e c u t o r or administrator; b u t actions to r e c o v e r
r e a l o r p e r s o n a l property, o r a n interest therein,
f r o m the estate, or to enforce a lien thereon, and
actions to r e c o v e r d a m a g e s , f o r an i n j u r y to person
o r property, r e a l o r p e r s o n a l , may b e commenced
against him.
NOTES
1. An administrator or executor may be sued in either

his personal or representative capacity. For violation of or
non-compliance with the duties of his trust, such executor
or administrator shall be sued in his personal capacity. The
actions authorized under this section are actions which
are brought against the executor or administrator in his
representative capacity, in accordance with Sec. 3, Rule 3.
The general rule is that if the action would result in a direct
charge upon the estate, the executor or administrator is to
be sued in his representative capacity.
2. T h i s section does not bar a suit against the

administratrix for the revival of a judgment for a sum of
money against the decedent whose estate she represents,
as its object is not to make the estate pay said sums of
money adjudged in that judgment but merely to keep alive
said judgment so that the sums awarded in the action for
revival may be presented as claims against the estate
(Romualdez, et al. vs. Tiglao, et al., G.R. No. 51151,
July 24, 1981).
85
3. It has been held that a legatee may bring an action

against the executor or administrator to compel the
payment of the legacy (Del Rosario vs. Del Rosario, 2 Phil.
321). This ruling still appears to be valid up to the present
since Sec. 3 of this Rule only prohibits an action against
the executor or administrator by an heir or devisee with
respect to lands. However, it should be deemed qualified
by the provisions of Sec. 15, Rule 88, under which the
probate court may allow the executor or administrator a
sufficient period of time within which to pay such legacy.
Sec. 2. Executor or administrator may bring or

defend actions which survive. — F o r the r e c o v e r y or
protection of the p r o p e r t y or rights of the deceased,
an executor or administrator may b r i n g or defend,
in the right of the deceased, actions f o r causes w h i c h
survive.
NOTES
1. While the heirs have no standing in court to sue for

the recovery of property of the estate represented by an
executor or administrator, it has been held that the heirs
may maintain such action if the executor or administrator
is unwilling or refuses to bring suit (Pascual vs. Pascual,
73 Phil. 561), or when he himself is alleged to have
participated in the act complained of (Velasquez, et al. vs.
George, et al., G.R. No. 62376, Oct. 27, 1983) and the
executor or administrator may be made a party defendant
(Borromeo vs. Borromeo, et al., 98 Phil. 432). This
procedure appears to be plausible under the provisions of
Sec. 10, Rule 3, as the executor or administrator would be
in the position of an unwilling co-plaintiff.
2. In an action by the a d m i n i s t r a t o r to r e c o v e r
properties of the estate, the judgment of the court, ordering
the possessors to surrender the property and to account
for the fruits thereof, is a final and appealable judgment,
86
RULE 87 ACTIONS BY EXECUTORS, ETC. SECS. 3-5
even before the accounting ordered therein has been

complied with. There is no danger of a second appeal from
the accounting aspect after its submission since the same
is a matter to be implemented in the execution stage and
no appeal lies from an order approving or disapproving the
accounting unless there was grave abuse of discretion, in
which case the same is correctable on certiorari (Miranda
vs. CA,et al., L-33007, June 18, 1976).
Sec. 3. Heir may not sue until share assigned. —

W h e n an executor or administrator is appointed and
assumes the trust, no action to r e c o v e r the title or
possession of l a n d s or f o r d a m a g e s d o n e to such
lands shall be m a i n t a i n e d against him by an heir or
devisee until there is an o r d e r of the court assigning
such lands to such heir or devisee or until the time
a l l o w e d for p a y i n g debts has expired.
Sec. 4. Executor or administrator may compound

with debtor. — W i t h the a p p r o v a l of the court, an
executor or administrator may compound with the
d e b t o r of the deceased for a debt due, and may give
a d i s c h a r g e of s u c h d e b t s on r e c e i v i n g a j u s t
d i v i d e n d of the estate of the debtor.
an act of ownership and dominion
Sec. 5. Mortgage due estate may be foreclosed. — A
m o r t g a g e b e l o n g i n g to the estate of a deceased
person, as mortgagee or assignee of the right of a
m o r t g a g e e , may be foreclosed by the executor or
administrator.
NOTES
1. The prohibition in Sec. 3 applies only to heirs and

devisees and not to a donee inter vivos who may sue the
administrator for the delivery of the property donated
(Lopez vs. Olbes, 15 Phil. 540) or a reservee who can sue to
87
recover the property which the deceased was bound to

reserve (Cabardo vs. Villanueva, 44 Phil. 186).
2. Where, in his lifetime, a final judgment had been
rendered in favor of the deceased, the said judgment shall
be enforced by execution on motion of the executor or
administrator (see Sec. 7[a], Rule 39).
Sec. 6. Proceedings when property concealed,

embezzled, or fraudulently conveyed. — If an executor
or administrator, heir, legatee, creditor, or other
individual interested in the estate of the deceased,
complains to the court h a v i n g jurisdiction of the
estate that a p e r s o n is suspected of h a v i n g
concealed, embezzled, or conveyed a w a y any of the
money, goods, or chattels of the deceased, or that
such person has in his possession or has k n o w l e d g e
of any deed, conveyance, b o n d , contract, or other
writing which contains evidence of or tends to
disclose the right, title, interest, or claim of the
deceased to real or personal estate, or the last w i l l
and testament of the deceased, the court m a y cite
such suspected person to a p p e a r b e f o r e it a n d may
examine him on oath on the m a t t e r of such
c o m p l a i n t a n d if the p e r s o n so cited r e f u s e s to
appear, or to a n s w e r on such e x a m i n a t i o n or such
i n t e r r o g a t o r i e s as a r e put to him, the c o u r t m a y
punish him f o r contempt, a n d commit him to p r i s o n
until he submits to the o r d e r of the c o u r t . T h e
i n t e r r o g a t o r i e s p u t t o any such p e r s o n , a n d his
answers thereto, shall be in w r i t i n g and shall be filed
in the clerk's office.
Sec. 7. Person entrusted with estate compelled to

render account. — T h e c o u r t , on c o m p l a i n t of an
executor or a d m i n i s t r a t o r , may cite a p e r s o n
entrusted by an executor or a d m i n i s t r a t o r w i t h any
part of the estate of the deceased to a p p e a r b e f o r e
4
88
RULE 87 ACTIONS BY EXECUTORS, ETC. SECS. 8. 9
it, a n d m a y r e q u i r e such p e r s o n to r e n d e r a full

a c c o u n t , on o a t h , of the money, g o o d s , chattels,
b o n d s , accounts, or other p a p e r s b e l o n g i n g to such
estate as came to his possession in trust for such
executor or administrator, a n d of his proceedings
thereon; a n d if a p e r s o n so cited refuses to a p p e a r
to r e n d e r such account, the court may punish him
f o r contempt as h a v i n g disobeyed a l a w f u l o r d e r of
the court.
Sec. 8. Embezzlement before letters issued. — If a

p e r s o n , b e f o r e the g r a n t i n g of letters testamentary
or of administration on the estate of the deceased,
e m b e z z l e s or a l i e n a t e s a n y of the money, goods,
chattels, or effects of such deceased, such person
shall be l i a b l e to an action in f a v o r of the executor
or a d m i n i s t r a t o r of the estate f o r d o u b l e the value
of the p r o p e r t y sold, embezzled, or alienated, to be
r e c o v e r e d for the benefit of such estate.
NOTE
1. These proceedings are merely in the nature of fact-

finding inquiries. If in the proceedings authorized under
this section the persons alleged to have converted property
of the estate assert title thereto, the probate court cannot
determine the issue of title. The executor or administrator
must file an ordinary action in court for the recovery of
the properties or damages thereto (see Mallari vs. Mallari,
92 Phil. 694; Modesto vs. Modesto, 105 Phil. 1066; Sebial
vs. Sebial, et al., L-23419, June 27, 1975; Valera, et al. vs.
Inserto, et al, G.R. Nos. 56504 & 59867-68, May 7, 1987).
Sec. 9. Property fraudulently conveyed by deceased

may be recovered. When executor or administrator must
bring action. — W h e n there is a deficiency of assets
in the hands of an executor or administrator for the
payment of debts and expenses of administration,
89
and the deceased in his lifetime h a d conveyed real

or personal property, or a right or interest therein,
or a d e b t or credit, w i t h intent to d e f r a u d his
creditors or to avoid any right, debt, or duty; or h a d
so conveyed such property, right, interest, debt, or
credit that by l a w the conveyance w o u l d be void as
a g a i n s t his c r e d i t o r s , a n d t h e s u b j e c t o f t h e
attempted conveyance w o u l d be liable to attachment
by any of them in his lifetime, the e x e c u t o r or
administrator may commence a n d prosecute to final
j u d g m e n t an action for the r e c o v e r y of such
property, r i g h t , interest, d e b t , o r c r e d i t f o r the
benefit of the creditors; b u t he shall not be b o u n d
to commence the action unless on application of the
creditors of the deceased, n o r unless the creditor
making the application p a y such p a r t of the costs
a n d e x p e n s e s , o r g i v e s e c u r i t y t h e r e f o r t o the
e x e c u t o r o r a d m i n i s t r a t o r , a s the c o u r t d e e m s
equitable. applies only when not enough to pay
for debts and expenses.
Sec. 10. When creditor may bring action. Lien for

costs. — W h e n there is such a deficiency of assets,
a n d the d e c e a s e d i n h i s l i f e t i m e h a d m a d e o r
attempted such a conveyance, as is stated in the last
preceding section, and the executor or administrator
has not commenced the action t h e r e i n p r o v i d e d for,
any creditor of the estate may, w i t h the p e r m i s s i o n
o f the c o u r t , c o m m e n c e a n d p r o s e c u t e t o f i n a l
j u d g m e n t , in the n a m e of the e x e c u t o r or
administrator, a like action f o r the r e c o v e r y of the
subject of the conveyance or attempted conveyance
for the benefit of the creditors. B u t the action shall
not be commenced until the c r e d i t o r h a s filed in a
court a b o n d executed to the e x e c u t o r or
administrator, in an amount a p p r o v e d by the j u d g e ,
conditioned to indemnify the e x e c u t o r or
a d m i n i s t r a t o r a g a i n s t the costs a n d e x p e n s e s
90
RULE 87 ACTIONS BY EXECUTORS, ETC. SECS. 9-10
i n c u r r e d by r e a s o n of such action. Such creditor

shall h a v e a lien u p o n any j u d g m e n t r e c o v e r e d by
him in the action for such costs a n d other expenses
i n c u r r e d t h e r e i n a s the c o u r t d e e m s e q u i t a b l e .
W h e r e the c o n v e y a n c e has b e e n m a d e b y the
deceased in his lifetime in f a v o r of the executor or
administrator, the action w h i c h a creditor may b r i n g
shall be in the n a m e of all the c r e d i t o r s , a n d
permission of the court a n d filing of b o n d as above
p r e s c r i b e d , a r e not necessary.
NOTE
1. These sections contemplate fraudulent transfers or

fictitious contracts of the decedent in fraud of creditors.
T h e executor or administrator may, on his own initiative
or on motion of the creditors and as directed by the court,
institute an action for the recovery of said property, but
since said action is for the benefit of the creditors, the court
may direct the creditors to defray part of the costs and
expenses of the suit. If the executor or administrator still
fails to bring such action, any of the creditors may bring
suit in his own name, with leave of court, upon the filing
of an indemnity bond for such costs and expenses as may
arise from the suit. Where, however, the action is against
the executor or administrator himself, the suit shall be in
the names of all the creditors and leave of court and the
indemnity bond shall not be required.
91
R U L E 88
PAYMENT OF THE DEBTS OF THE ESTATE
Section 1. Debts paid in full if estate sufficient. —

If, after hearing all the money claims against the
estate, and after ascertaining the amount of such
claims it appears that there are sufficient assets to
pay the debts, the executor or administrator shall
p a y the s a m e w i t h i n the time l i m i t e d f o r t h a t
purpose.
Sec. 11. Order for payment of debts. — B e f o r e the

expiration of the time limited for the payment of
the debts, the court shall o r d e r the payment thereof,
and the distribution of the assets received by the
executor or administrator for that p u r p o s e a m o n g
the creditors, as the circumstances of the estate
require and in accordance with the provisions of this
rule.
Sec. 12. Orders relating to payment of debts where

appeal is taken. — If an appeal has b e e n taken f r o m a
decision of the court concerning a claim, the court
may suspend the o r d e r for the payment of the debts
or may o r d e r the distribution a m o n g the creditors
whose claims a r e definitely a l l o w e d , l e a v i n g in the
hands of the executor or administrator sufficient
assets to pay the claim disputed and appealed. W h e n
a disputed claim is finally settled the court h a v i n g
jurisdiction of the estate shall o r d e r the same to be
p a i d out of the assets retained to the same extent
and in the same p r o p o r t i o n w i t h the claims of other
creditors.
Sec. 13. When subsequent distribution of assets

ordered. — If the w h o l e of the debts a r e not p a i d on
92
RULE 88 PAYMENT OF DEBTS, ETC. SECS. 14-15
the first distribution, a n d if the w h o l e assets a r e not

d i s t r i b u t e d , or other assets a f t e r w a r d s come to the
h a n d s of the executor or administrator, the court
may f r o m time to time m a k e f u r t h e r o r d e r s for the
d i s t r i b u t i o n of assets.
Sec. 14. Creditors to be paid in accordance with

terms of order. — W h e n an o r d e r is m a d e f o r the
d i s t r i b u t i o n o f assets a m o n g the c r e d i t o r s , the
e x e c u t o r or a d m i n i s t r a t o r shall, as soon as the time
of p a y m e n t a r r i v e s , p a y the creditors the amounts
of their claims, or the d i v i d e n d thereon, in
a c c o r d a n c e w i t h the terms of such order.
Sec. 15. Time for paying debts and legacies fixed, or

extended after notice, within what periods. — On granting
letters testamentary or of administration the court
shall a l l o w the executor or administrator a time for
d i s p o s i n g of the estate a n d p a y i n g the debts and
legacies of the deceased, w h i c h shall not, in the first
instance, exceed one (1) year; but the court may, on
a p p l i c a t i o n of the executor or administrator a n d
after h e a r i n g on such notice of the time and place
t h e r e f o r given to all persons interested as it shall
direct, extend the time as the circumstances of the
estate r e q u i r e not exceeding six (6) months for a
s i n g l e e x t e n s i o n n o r s o t h a t the w h o l e p e r i o d
a l l o w e d to the original executor or administrator
shall exceed two (2) years.
NOTE
1. T h e provisions of Sec. 15 for the payment of debts

and legacies is directory and extensions of the period may
be g r a n t e d by the court t a k i n g into account the
circumstances attending the distribution of the estate.
93
RULE 88 REMEDIAL LAW COMPENDIUM SECS. 2-3, 6
Sec. 2. Part of estate from which debt paid when

provision made by will. — If the t e s t a t o r m a k e s
provision by his will, or designates the estate to be
a p p r o p r i a t e d for the p a y m e n t of his d e b t s , the
expenses of administration, or the family expenses,
they shall be paid according to the provisions of the
will; but if the provision made by the w i l l or the
estate a p p r o p r i a t e d , i s not s u f f i c i e n t f o r t h a t
purpose, such part of the estate of the testator, r e a l
or personal, as is not disposed of by will, if any, shall
be appropriated for that purpose.
Sec. 3. Personalty first chargeable for debts, then

realty. — The p e r s o n a l estate of the d e c e a s e d not
disposed of by will shall be first c h a r g e a b l e w i t h the
payment of debts and expenses; a n d if said p e r s o n a l
estate is not sufficient for that p u r p o s e , or its sale
w o u l d r e d o u n d to the detriment of the participants
of the estate the whole of the real estate not disposed
of by will, or so much thereof as is necessary, may
b e sold, m o r t g a g e d , o r o t h e r w i s e e n c u m b e r e d f o r
that purpose by the executor or administrator, after
obtaining the authority of the court therefor. A n y
deficiency shall be met by c o n t r i b u t i o n s in
accordance w i t h the provisions of section 6 of this
rule.
Sec. 6. Court to fix contributive share where devisees,

legatees, or heirs have been in possession. — W h e r e
devisees, legatees, or heirs have e n t e r e d into
possession of portions of the estate b e f o r e the debts
and expenses have b e e n settled a n d p a i d , a n d h a v e
become liable to contribute f o r the p a y m e n t of such
debts and expenses, the court h a v i n g j u r i s d i c t i o n of
the estate may, b y o r d e r f o r that p u r p o s e , a f t e r
hearing, settle the amount of their several liabilities,
and order how much and in what manner each
94
RULE 88 PAYMENT OF DEBTS, ETC. SECS. 4-5
p e r s o n shall contribute, a n d may issue execution as

circumstances r e q u i r e .
NOTES
1. The payment of the debts of the estate, as a general

rule, must be taken ( a ) from the portion or property
designated in the will, (b) from the personal property, and
(c) from the real property, in that order. The court, on
petition of the interested parties, may modify such order
of disposition.
2. A legacy is not a debt of the estate, hence the probate

court cannot issue a writ of execution for the payment or
satisfaction thereof. On the other hand, Sec. 6 of this Rule
authorizes execution against the contributive shares of the
devisees, legatees and heirs in possession of the decedent's
assets to satisfy the debts of the estate (Pastor, Jr., et al.
vs. CA, et al, G.R. No. 56340, June 24, 1983).
Sec. 4. Estate to be retained to meet contingent

claims. — If the court is satisfied that a contingent
claim duly filed is valid, it may o r d e r the executor
or administrator to r e t a i n in his hands sufficient
estate to p a y such contingent claim w h e n the same
b e c o m e s a b s o l u t e , or, if the estate is insolvent,
sufficient to pay a portion equal to the dividend of
the other creditors.
Sec. 5. How contingent claim becoming absolute in

two years allowed and paid. Action against distributees
later. — If such contingent claim becomes absolute
a n d is presented to the court, or to the executor or
administrator, within two (2) years from the time
limited for other creditors to present their claims,
it may be allowed by the court if not disputed by the
executor or administrator, and if disputed, it may
be p r o v e d and allowed or disallowed by the court as
95
the facts may w a r r a n t . If the contingent claim is

allowed, the creditor shall receive payment to the
same extent as the other creditors if the estate
r e t a i n e d b y the e x e c u t o r o r a d m i n i s t r a t o r i s
sufficient. But if the claim is not so presented, after
having become absolute, within said t w o (2) years,
and allowed, the assets retained in the hands of the
executor or administrator, not e x h a u s t e d in the
payment of claims, shall be distributed by the o r d e r
of the court to the persons entitled to the same; b u t
the assets so distributed may still be a p p l i e d to the
payment of the claim w h e n e s t a b l i s h e d , a n d the
creditor may maintain an action against the
d i s t r i b u t e e s to r e c o v e r the d e b t , a n d such
distributees and their estates shall be l i a b l e f o r the
debt in p r o p o r t i o n to the estate they h a v e
r e s p e c t i v e l y r e c e i v e d f r o m the p r o p e r t y o f the
deceased.
NOTE
1. These two sections provide for the payment of

contingent claims. If the contingent claim becomes
absolute and is presented to the court as an absolute claim
within two years from the time allowed for the presentation
of claims, it will be paid in the same manner as the other
absolute claims. After said period, the creditor may proceed
against the distributees, provided said contingent claims
had been seasonably filed in and allowed by the probate
court (De Bautista, et al. vs. De Guzman, et al., supra).
The property reserved for the payment of such contingent
claims may, therefore, be retained by the administrator or
executor only within said two-year period as, thereafter,
the same shall be included among the assets for distribution
to the heirs.
Sec. 7. Order of payment if estate insolvent. — If the

assets w h i c h can be a p p r o p r i a t e d f o r the p a y m e n t
96
RULE 88 PAYMENT OF DEBTS, ETC. SECS. 8, 9-
of d e b t s a r e not sufficient f o r that p u r p o s e , the

executor or administrator shall pay the debts against
the estate, o b s e r v i n g the provisions of Articles 1059
a n d 2239 to 2251 of the Civil C o d e .
Sec. 8. Dividends to be paid in proportion to claims.

— If there a r e no assets sufficient to p a y the credits
of any one class of creditors after p a y i n g the credits
entitled to p r e f e r e n c e o v e r it, each creditor w i t h i n
such class shall be p a i d a d i v i d e n d in p r o p o r t i o n to
his claim. No creditor of any one class shall receive
any p a y m e n t until those of the p r e c e d i n g class a r e
paid.
NOTES
1. Under these provisions, the preference of credits

stated in the Civil Code has been specifically incorporated
in the Rules, to be followed in the payment of debts where
the estate is not sufficient therefor. Sec. 7 merely reiterates
the directive in Art. 1059 of the Civil Code to the effect
that such order of preference be followed.
2. For c o r r e l a t i o n , Sec. 6 of this Rule has been

transposed in this work to follow Sec. 3 thereof.
Sec. 9. Estate of insolvent nonresident, how

disposed of. — In case administration is taken in the
P h i l i p p i n e s of the estate of a person w h o w a s at the
time of his death an inhabitant of another country,
a n d w h o d i e d insolvent, his estate f o u n d in the
P h i l i p p i n e s shall, as f a r as practicable, be so
disposed of that his creditors here and elsewhere
may receive each an equal share, in proportion to
their respective credits.
Sec. 10. When and how claim proved outside the

Philippines against insolvent resident's estate paid. — If
97
it a p p e a r s to the court h a v i n g j u r i s d i c t i o n that

claims have been duly proven in another country
against the estate of an insolvent w h o w a s at the
time of his death an inhabitant of the Philippines,
a n d that the e x e c u t o r o r a d m i n i s t r a t o r i n the
Philippines h a d knowledge of the presentation of
such claims in such country and an opportunity to
contest their allowance, the court shall receive a
certified list of such claims, w h e n perfected in such
country, and add the same to the list of claims proved
against the deceased person in the P h i l i p p i n e s so
that a just distribution of the w h o l e estate may be
made equally among all its creditors a c c o r d i n g to
their respective claims; b u t the benefit of this a n d
the preceding sections shall not be extended to the
creditors in another country if the p r o p e r t y of such
deceased person there found is not e q u a l l y
a p p o r t i o n e d to the c r e d i t o r s r e s i d i n g in the
Philippines a n d the other creditors, a c c o r d i n g to
their respective claims.
Sec. 16. Successor of dead executor or administrator

may have time extended on notice within certain period. —
W h e n an executor or a d m i n i s t r a t o r dies, a n d a n e w
administrator of the same estate is a p p o i n t e d , the
court may extend the time a l l o w e d for the p a y m e n t
of the debts or legacies b e y o n d the time a l l o w e d to
the o r i g i n a l e x e c u t o r o r a d m i n i s t r a t o r , not
exceeding six (6) months b e y o n d the time w h i c h the
court might h a v e a l l o w e d to such o r i g i n a l executor
or administrator; a n d notice shall be g i v e n of the
time a n d p l a c e f o r h e a r i n g s u c h a p p l i c a t i o n a s
r e q u i r e d in the last p r e c e d i n g section.
NOTE
1. The texts of Sees. 11 to 15 of this Rule are set out

after Sec. 1 hereof.
98
R U L E 89
SALES, MORTGAGES, A N D OTHER

ENCUMBRANCES OF PROPERTY OF DECEDENT
Section 1. Order of sale of personalty. — U p o n the

application of the executor or administrator, and on
w r i t t e n notice to the heirs and other persons
interested, the court may o r d e r the w h o l e or a part
of the p e r s o n a l estate to be sold, if it appears
necessary for the p u r p o s e of p a y i n g debts,
expenses of administration, or legacies, or for the
p r e s e r v a t i o n of the property.
Sec. 2. When court may authorize sale, mortgage, or

other encumbrance of realty to pay debts and legacies
through personalty not exhausted. — W h e n the personal
estate of the deceased is not sufficient to pay the
debts, expenses of administration, and legacies, or
w h e r e the sale of such personal estate may injure
the business or other interests of those interested
in the estate, and w h e r e a testator has not otherwise
m a d e sufficient provision for the payment of such
d e b t s , e x p e n s e s , a n d legacies, the court, on the
application of the executor or administrator and on
w r i t t e n notice to the heirs, devisees, and legatees
r e s i d i n g i n the P h i l i p p i n e s , m a y a u t h o r i z e the
e x e c u t o r or a d m i n i s t r a t o r to sell, m o r t g a g e , or
otherwise encumber so much as may be necessary
of the real estate, in lieu of personal estate, for the
purpose of paying such debts, expenses, and legacies,
if it clearly a p p e a r s that such sale, mortgage, or
e n c u m b r a n c e w o u l d be beneficial to the persons
interested; and if a part cannot be sold, mortgaged,
or otherwise encumbered without injury to those
interested in the remainder, the authority may be
for the sale, mortgage, or other encumbrance of the
99
whole of such real estate, or so much thereof as is

necessary or beneficial under the circumstances.
Sec. 4. When court may authorize sale of estate as

beneficial to interested persons. Disposal of proceeds. —
When it appears that the sale of the w h o l e or a p a r t
of the real or personal estate will be beneficial to
the heirs, devisees, legatees, and other interested
persons, the court may, u p o n a p p l i c a t i o n of the
executor or administrator and on w r i t t e n notice to
the heirs, devisees, and legatees w h o a r e interested
in the estate to be sold, authorize the executor or
administrator to sell the w h o l e or a p a r t of the said
estate, although not necessary to pay debts, legacies,
or expenses of administration; b u t such authority
shall not be g r a n t e d if inconsistent w i t h the
p r o v i s i o n s of a w i l l . In case of s u c h s a l e , the
proceeds shall be assigned to the persons entitled
to the estate in the p r o p e r proportions.
Sec. 5. When court may authorize sale, mortgage, or

other encumbrance of estate to pay debts and legacies in
other countries. — W h e n the sale of p e r s o n a l estate,
or the sale, m o r t g a g e , or other e n c u m b r a n c e of r e a l
estate is not necessary to p a y the debts, expenses of
administration, or legacies in the P h i l i p p i n e s , b u t
it appears from records and proceedings of a p r o b a t e
court in a n o t h e r c o u n t r y that the estate of the
deceased in such other country is not sufficient to
p a y the d e b t s , e x p e n s e s o f a d m i n i s t r a t i o n , a n d
legacies there, the court h e r e m a y a u t h o r i z e the
executor or administrator to sell the personal estate
or to sell, mortgage, or otherwise e n c u m b e r the r e a l
estate for the payment of debts or legacies in the
o t h e r c o u n t r y , i n the s a m e m a n n e r a s f o r t h e
payment of debts or legacies in the P h i l i p p i n e s .
100
;IMU TAGBJLA&Alf
RULE 89 SALES, MORTGAGES, ETC. SEC. 6
Sec. 6. When court may authorize sale, mortgage or

other encumbrance of realty acquired on execution or
foreclosure. — T h e court may authorize an executor
o r a d m i n i s t r a t o r t o sell, m o r t g a g e , o r o t h e r w i s e
e n c u m b e r r e a l estate a c q u i r e d by him on execution
or f o r e c l o s u r e sale, u n d e r the same circumstances
a n d u n d e r the same regulations as p r e s c r i b e d in this
r u l e for the sale, m o r t g a g e , or other e n c u m b r a n c e
of other r e a l estate.
NOTES
1. The text of Sec. 3 of this Rule has been transposed

to follow these notes and to precede Sec. 7.
2. Under the foregoing provisions, the court may allow

only the sale of personal property for the purposes stated
in Sec. 1 of this Rule, and not the encumbrance thereof.
With respect to real property, the court may permit the
same to be sold, mortgaged or otherwise encumbered under
the circumstances in Sees. 2, 4, 5 and 6. It should, however,
be noted that under both Sees. 4 and 6, if it will only be for
the convenience of or beneficial to the heirs and not for
payment of debts, administration expenses and legacies,
real property of the estate can only be allowed to be sold
and not encumbered.
3. As a rule, unless the testator had made provisions

to the contrary in his will, the personal property of the
estate must first be sold for the payment of debts, expenses
of a d m i n i s t r a t i o n or l e g a c i e s . If the same is still
insufficient, the real property may be proceeded against.
Nevertheless, personalty may always be sold at any time if
it is necessary for the preservation of its value.
4. The sale or encumbrance of real property may be

allowed by the court if the petition therefor avers: (a) That
the personal estate is not sufficient to pay the debts,
expenses of administration and legacies, or that the sale of
101
such personalty may injure the business or the interests of

persons interested in the estate; (b) That the testator has
not otherwise made sufficient provisions for the payment
of such debts, expenses of administration and legacies; and
(c) That such sale or encumbrance would be beneficial to
the parties interested in the estate.
Consequently, it has been held that the averment as
to the value of the personal estate is a requisite in a petition
for the sale of real property, and without such averment
the court has no jurisdiction to authorize the sale of realty.
If the court should authorize the sale of real property
despite such defect in the petition, the sale of such real
property is null and void (De la Cruz vs. De la Cruz, et al.,
60 Phil. 577).
5. The personal property may be sold, or the real

property may be sold, mortgaged or otherwise encumbered,
for the following reasons:
(a) For the payment of debts, expenses of adminis-
tration and legacies in the Philippines;
(b) When such sale would be beneficial to the persons
interested in the estate; and
(c) For the payment of debts, expenses of adminis-
tration and legacies involved in the settlement of the estate
of a decedent in a foreign country.
6. It has been held that if the a d m i n i s t r a t o r or

executor sells property of the estate without the requisite
authority of the court, such sale is null and void (Godoy vs.
Orellano, 42 Phil. 47). This rule applies to the sale of
immovable property of the estate, although the rules do
not specifically so provide, as such authority is necessarily
vested in a probate court (Manotok Realty, Inc. vs. CA,
et al, L-35367, April 9, 1987). The same rule would apply
to encumbrances of real property without authority of the
court. A l s o , such application for authority to sell or
encumber property of the estate must be with notice to
102
the heirs, devisees and legatees; otherwise the sale is void.

Such notice is presumed to have been given absent proof
to the contrary and the order of the court granting such
authority cannot be assailed in a collateral proceeding
(Rafols, et al. vs. Barba, L-28446, Dec 13, 1982).
7. In an early case, it was held that a probate court

has no authority to order the sale of a mortgaged property
of the estate for the specific purpose of paying the mortgage
account as that would be equivalent to a foreclosure action
being adjudicated in the settlement proceeding (Estate of
Gamboa Carpizo vs. Floranza, 12 Phil. 191). On the other
hand, Sec. 7 of Rule 86 provides for the remedies of
mortgage creditors of the estate and which they can avail
of on their choice and at their own initiative in a court of
general jurisdiction should they wish to foreclose the
mortgage.
8. Executors and administrators cannot purchase the

property of the estate under administration. Also, justices,
judges, prosecuting attorneys, clerks of court and other
officers and employees connected with the administration
of justice can not purchase the property and rights in
litigation or levied upon an execution before the court
within whose jurisdiction or territory they exercise their
respective functions. T h e same prohibition applies to
lawyers with respect to the property and rights which may
be the object of any litigation in which they may take part
by virtue of their profession. Any sale covered by this
prohibition will be null and void (Art. 14091V and Art. 1491,
Civil Code).
9. A Court of First Instance has jurisdiction over a
case brought to rescind a sale made upon prior authority
of a probate court, even if the latter subsequently approved
said sale. This does not constitute an interference or review
of the order of a co-equal court since the probate court has
no jurisdiction over the question of title to the properties,
hence a separate action may be brought to determine the
103
question of ownership thereof (Pizarro, et al. vs. CA, et

al., L-31979, Aug. 6, 1980; Pio Barretto Realty Dev., Inc.
vs. CA, et al, G.R. Nos. 62431-33, Aug. 31, 1984).
Sec. 3. Persons interested may prevent such sale, etc.,

by giving bond. — No such authority to sell, mortgage,
or otherwise encumber real or personal estate shall
be granted if any person interested in the estate
gives a b o n d , in a sum to be fixed by the court,
conditioned to pay the debts, e x p e n s e s of
administration, and legacies within such time as the
court directs; and such b o n d shall be for the security
o f the c r e d i t o r s , a s w e l l a s o f the e x e c u t o r o r
administrator, and may be prosecuted for the benefit
of either.
NOTE
1. If the opposition to the sale is based on the fact

that the oppositor claims title to the property sought to be
sold, the court can hold in abeyance the authority to sell
such property until the issue of title has been settled in an
ordinary civil action, as the probate court generally has no
power to adjudicate the question of ownership in the
administration proceedings (see Baquial vs. Amihan, et al.,
92 Phil. 501; Pio Barretto Realty Dev., Inc. vs. CA, et al.,
supra).
Sec. 7. Regulations for granting authority to sell,

mortgage, or otherwise encumber estate. — T h e c o u r t
having jurisdiction of the estate of the deceased may
a u t h o r i z e the e x e c u t o r o r a d m i n i s t r a t o r t o sell
personal estate, or to sell, m o r t g a g e , or o t h e r w i s e
e n c u m b e r r e a l estate, in cases p r o v i d e d by these
rules and w h e n it a p p e a r s necessary or beneficial
u n d e r the following regulations:
104
( a ) T h e e x e c u t o r or a d m i n i s t r a t o r shall file a
w r i t t e n petition setting forth the debts due from the
d e c e a s e d , t h e e x p e n s e s o f a d m i n i s t r a t i o n , the
l e g a c i e s , t h e v a l u e o f t h e p e r s o n a l e s t a t e , the
situation of the estate to be sold, m o r t g a g e d , or
otherwise e n c u m b e r e d , a n d such other facts as show
that the sale, m o r t g a g e , or other e n c u m b r a n c e is
necessary o r beneficial;
( b ) T h e c o u r t s h a l l t h e r e u p o n fix a time a n d
p l a c e f o r h e a r i n g such petition, a n d cause notice
stating the n a t u r e of the petition, the r e a s o n for the
same, a n d the time a n d place of h e a r i n g , to be given
p e r s o n a l l y or by mail to the persons interested, and
may cause such further notice to be given, by
p u b l i c a t i o n or otherwise, as it shall deem proper;
( c ) I f t h e c o u r t r e q u i r e s it, the e x e c u t o r o r
administrator shall give an additional bond, in such
s u m as the c o u r t directs, c o n d i t i o n e d that such
e x e c u t o r o r a d m i n i s t r a t o r w i l l a c c o u n t f o r the
p r o c e e d s o f t h e s a l e , m o r t g a g e , o r o t h e r en-
cumbrance;
( d ) I f the r e q u i r e m e n t s in the p r e c e d i n g
subdivisions of this section have been complied with,
the court by o r d e r stating such compliance, may
a u t h o r i z e the e x e c u t o r or a d m i n i s t r a t o r to sell,
m o r t g a g e , or otherwise encumber, in p r o p e r cases,
such p a r t of the estate as is deemed necessary, and
in case of sale the court may authorize it to be public
or private, as w o u l d be most beneficial to all parties
concerned. T h e executor or administrator shall be
furnished w i t h a certified copy of such order;
( e ) If the estate is to be sold at auction, the mode
of giving notice of the time and place of the sale shall
be governed by the provisions concerning notice of
execution sale;
105
(f) There shall be r e c o r d e d in the registry of

deeds of the province in which the real estate thus
sold, m o r t g a g e d , or o t h e r w i s e e n c u m b e r e d is
situated, a certified copy of the o r d e r of the court,
t o g e t h e r w i t h the d e e d of the e x e c u t o r or
administrator for such real estate, w h i c h shall be
as valid as if the deed h a d b e e n executed by the
deceased in his lifetime.
NOTE
1. After the sale or encumbrance of the property is

effected in accordance with this section, the document of
sale must be submitted for the approval of the court. The
court may also require the administrator or executor to
deposit the proceeds of the sale in a banking institution.
Sec. 8. When court may authorize conveyance of

realty which deceased contracted to convey. Notice. Effect
of deed. — W h e r e the deceased w a s in his lifetime
under contract, b i n d i n g in law, to deed real property,
or an interest therein, the court h a v i n g j u r i s d i c t i o n
of, the estate may, on application f o r that p u r p o s e ,
authorize the executor or a d m i n i s t r a t o r to convey
such p r o p e r t y a c c o r d i n g to such contract, or w i t h
such modifications as a r e a g r e e d u p o n by the parties
and a p p r o v e d by the court; a n d if the contract is to
convey real p r o p e r t y to the executor or admi-
nistrator, the clerk of the court shall execute the
deed. The deed executed by such executor,
administrator, or clerk of court shall be as effectual
to convey the property as if executed by the deceased
in his lifetime; b u t no such c o n v e y a n c e shall be
authorized until notice of the a p p l i c a t i o n f o r that
purpose has b e e n given p e r s o n a l l y or by mail to all
persons interested, a n d such f u r t h e r notice has b e e n
given, b y p u b l i c a t i o n o r o t h e r w i s e , a s the c o u r t
deems p r o p e r ; n o r if the assets in the h a n d s of the
106
executor or administrator will thereby be reduced

so as to prevent a creditor f r o m receiving his full
debt or diminish his dividend.
Sec. 9. When court may authorize conveyance of

lands which deceased held in trust. — W h e r e t h e
deceased in his lifetime held p r o p e r t y in trust for
a n o t h e r person, the court may, after notice given as
r e q u i r e d in the last p r e c e d i n g section, authorize the
executor or a d m i n i s t r a t o r to deed such p r o p e r t y to
the p e r s o n , or his e x e c u t o r or administrator, for
w h o s e use a n d benefit it w a s so held; a n d the court
m a y o r d e r the e x e c u t i o n o f such trust, w h e t h e r
c r e a t e d b y d e e d o r law.
NOTES
1. T h e authority granted to the probate court by

Sec. 8 of this Rule presupposes that there is no controversy
as to the contract contemplated therein and that the assets
of the estate will not be reduced to the extent of depriving
the creditor of full payment of his claim or his just dividend.
If such objections obtain, the remedy of the person seeking
the execution of the contract is an ordinary and separate
action to compel the same.
2. Under Sec. 9 of this Rule, the court can authorize

such conveyance only if there is no controversy and even if
creditors may be affected since, unlike the situation in
Sec. 8, the properties contemplated in Sec. 9 do not form
part of the estate of the deceased who merely held the same
in trust. Notice of such application must be given to all
interested parties, otherwise both the order of the court
and the conveyance made pursuant thereto are completely
void (De Jesus vs. De Jesus, L-16553, Nov. 9, 1961). The
same requirement and legal effect in case of non-compliance
should also apply to the conveyance under Sec. 8.
107
R U L E 90
DISTRIBUTION AND PARTITION

OF THE ESTATE
Section 1. When order for distribution of residue

made. — W h e n the d e b t s , f u n e r a l c h a r g e s , a n d
expenses of administration, the a l l o w a n c e to the
widow, and inheritance tax, if any, c h a r g e a b l e to the
estate in accordance with law, have b e e n p a i d , the
court, on the a p p l i c a t i o n of the e x e c u t o r or
administrator, or of a person interested in the estate,
a n d after h e a r i n g u p o n notice, s h a l l a s s i g n the
residue of the estate to the persons entitled to the
same, naming them a n d the proportions, or parts,
to w h i c h each is entitled, a n d such p e r s o n s m a y
demand and recover their respective shares f r o m the
executor or administrator, or any other person
h a v i n g the same in his possession. If t h e r e is a
controversy before the court as to w h o a r e the lawful
heirs of the deceased person or as to the distributive
shares to w h i c h each person is entitled u n d e r the
law, the controversy shall be h e a r d a n d d e c i d e d as
in o r d i n a r y cases.
No distribution shall be a l l o w e d until the
payment of the o b l i g a t i o n s a b o v e m e n t i o n e d h a s
been made or p r o v i d e d for, unless the distributees,
or any of them, give a b o n d , in a sum to be fixed by
the c o u r t , c o n d i t i o n e d for, the p a y m e n t o f s a i d
obligations w i t h i n such time as the court directs.
NOTES
1. Rule 109 provides:

"Sec. 2. Advance distribution in special proceed-
ings. — Notwithstanding a pending controversy or
appeal in proceedings to settle the estate of a decedent,
108
RULE 90 DISTRIBUTION AND PARTITION, ETC. SEC. 1
the court may, in its discretion and upon such terms

as it may deem proper and just, permit that such part
of the estate as may not be affected by the controversy
or appeal be distributed among the heirs or legatees,
upon compliance with the conditions set forth in
Rule 90 of these rules."
2. Partial distribution of the decedent's estate pending

the final termination of the testate or intestate proceeding
should as much as possible be discouraged by the courts
and, except in extreme cases, such form of advances of
inheritance should not be countenanced. T h e reason for
this rule is that courts should guard with utmost zeal and
jealousy the estate of the decedent to the end that the
creditors thereof be adequately protected and all the
rightful heirs be assured of their shares in the inheritance.
Where, however, the estate has sufficient assets to ensure
an equitable distribution of the inheritance in accordance
with law and the final judgment in the proceedings and it
does not appear that there are unpaid obligations as
contemplated in Rule 90, for which provisions should have
been made or a bond required, such partial distribution
may be allowed (Dael, et al. vs. IAC, et al., G.R. No. 68873,
Mar. 31, 1989).
3. Before the court can issue an order of distribution,

the debts, funeral charges, expenses of administration,
allowance to the widow and inheritance tax must first have
been paid. T h e reference to "inheritance tax" must be
deemed to include both estate and inheritance taxes
(Sees. 85-107, National Internal Revenue Code), However,
if the decedent died on or after January 1, 1973, only estate
taxes shall be paid, under the rates in said Code, as
amended by P.D. N o . 69, which abolished inheritance taxes
(Sees. 99-119, National Internal Revenue Code of 1977, re-
numbered as Sees. 77-90 by E.O. 273). This matter is now
governed by Sees. 84-97 of the Tax Reform Code of 1997
(R.A. 8424), effective January 1, 1998.
109
While this section speaks only of allowances to the

widow, it should also include the allowances to the children
of the deceased as the payment of such allowances during
the pendency of the a d m i n i s t r a t i o n p r o c e e d i n g s is
specifically authorized by Sec. 3, Rule 83. See in this
connection, Art. 198 of the Family Code. Also, the legacies
must have been paid as this is directed by Sec. 15, Rule 88.
An advance or partial distribution may be allowed provided
the foregoing obligations are secured by a bond.
4. Under this section, the probate court is specifically

granted jurisdiction to determine who are the lawful heirs
of the deceased, as well as their shares, hence there is no
further need to institute an independent civil action to pass
upon the status of a person who claims to be an heir.
Consequently, the order of distribution must also be at the
same time a declaration of heirs since a separate action for
the declaration of heirs is not proper (Pimentel vs. Palanca,
5 Phil. 436). If the proceedings have been closed, the
same may be reopened to pass upon the status of one
claiming to be an heir (Uriarte us. CFI ofNeg. Occ, et al.,
L-21938-39, May 29, 1970).
5. The heirs may also, by agreement, submit a project

of partition to serve as a basis of the order of distribution.
The heirs who do not agree thereto may submit, a counter-
project of partition (Camia de Reyes vs. Reyes de llano, 63
Phil. 629). In approving a project of partition, it is not
necessary for the court to state the specific property
adjudicated to an heir (De Borja vs. De Borja, 83 Phil. 405)
but may award the same to the heirs in pro indiviso shares.
If they cannot agree on their r e s p e c t i v e specific
participations, they can thereafter resort to an action for
partition (see Rule 69). The judicial decree of distribution
vests title in the distributees and any objection thereto
should be duly raised in a seasonable appeal, otherwise it
will have binding effect like any other judgment in rem
(Reyes vs. Barretto-Datu, L-17818, Jan. 25, 1967).
110
RULE 90 DISTRIBUTION AND PARTITION, ETC. SECS. 2-3
6. After the institution of the testate or intestate

proceedings, the assignment pendente lite by one heir of
his hereditary share requires the approval of the probate
court (Duran vs. Duran, et al., L-23372, June 14, 1967).
7. T h e sale by a w i d o w of land belonging to the

conjugal partnership is valid with respect to her one-half
share therein even if the sale was made before partition,
except where there are numerous assets of the partnership
as, in that case, the particular and corporeal share of the
widow cannot be determined until after the liquidation and
partition thereof (Garcia, et al. vs. Orozco, et al., L-35213,
Aug. 31, 1978).
Sec. 2. Questions as to advancement to be deter-

mined. — Q u e s t i o n s as to a d v a n c e m e n t m a d e , or
a l l e g e d to h a v e b e e n m a d e , by the deceased to any
h e i r m a y b e h e a r d a n d d e t e r m i n e d b y the court
h a v i n g j u r i s d i c t i o n of the estate proceedings; a n d
the final o r d e r of the court thereon shall be b i n d i n g
on the p e r s o n r a i s i n g the questions and on the heir.
Sec. 3. By whom expenses of partition paid. — If

at the time of the distribution the executor or ad-
m i n i s t r a t o r has r e t a i n e d sufficient effects in his
h a n d s w h i c h m a y l a w f u l l y be a p p l i e d for the ex-
penses of p a r t i t i o n of the properties distributed,
such expenses of partition may be paid by such ex-
ecutor or administrator w h e n it appears equitable
to the court a n d not inconsistent with the intention
of the testator; otherwise, they shall be paid by the
parties in p r o p o r t i o n to their respective shares or
interest in the premises, a n d the apportionment
shall be settled and allowed by the court, and, if any
person interested in the partition does not pay his
proportion or share, the court may issue an execu-
tion in the name of the executor or administrator
against the party not paying for the sum assessed.
Ill
Sec. 4. Recording the order of partition of estate. —

Certified copies of final orders and judgments of the
court relating to the real estate or the partition
thereof shall be recorded in the registry of deeds of
the province w h e r e the property is situated.
NOTES
1. The probate court loses jurisdiction of an estate

under administration only after the payment of all debts
and the delivery of the remaining estate to the heirs. The
finality of the approval of the project of partition does not
terminate the probate proceeding (Siguion vs. Tecson,
89 Phil. 28; Timbol vs. Cano, L-15445, April 29, 1961). As
long as the order of distribution has not been complied
with, the probate proceeding can not be deemed terminated
because a judicial partition is not final and conclusive and
does not prevent the heir from bringing an action to obtain
his share within the prescriptive period (Mari, et al. vs.
Bonilla, et al., 83 Phil. 137).
2. The better practice for the heir who has not received
his share is to demand the same through a proper motion
in the same probate or administration proceedings, or for
reopening of said proceedings if already closed but still
within the reglementary period for appeal, and not through
an independent action (Guilas vs. Judge of the CFI of
Pampanga, et al., L-26695, Jan. 31, 1972; Macias vs. Uy
Kim, et al, L-31174, May 30, 1972).
In Divinagracia, et al. vs. Rovira, etc., et al. (L-42615,
Aug. 10, 1976), it was held that where the order closing
the intestate proceeding was already final and executory,
the same cannot be reopened on a motion therefor filed
after the lapse of the reglementary period.
112
R U L E 91
ESCHEATS
Section 1. When and by whom petition filed. — W h e n

a p e r s o n dies intestate, seized of r e a l or personal
p r o p e r t y i n the P h i l i p p i n e s , l e a v i n g n o h e i r o r
p e r s o n by l a w entitled to the same, the Solicitor
G e n e r a l o r his r e p r e s e n t a t i v e i n b e h a l f o f the
R e p u b l i c of the P h i l i p p i n e s , may file a petition in
the C o u r t of First Instance of the p r o v i n c e w h e r e
the deceased last r e s i d e d or in w h i c h he h a d estate,
if he resided out of the Philippines, setting forth the
facts, a n d p r a y i n g that the estate of the deceased
b e d e c l a r e d escheated.
NOTES
1. Under the revised Rules, petitions for escheat may

only be filed in the name of the Republic of the Philippines
by the Solicitor General or his representative, such as the
provincial or city prosecutor.
2. Even if the decedent died testate but his will was

not allowed to probate, it is as if he died intestate and if he
has no known heirs and there are no persons entitled to
his property, the same can still be escheated.
Sec. 2. Order of hearing. — If the p e t i t i o n is

sufficient in form and substance, the court, by an
o r d e r reciting the purpose of the petition, shall fix
a date a n d place for the h e a r i n g thereof, which date
shall be not more than six (6) months after the entry
of the order, and shall direct that a copy of the order
be published before the hearing at least once a week
for six (6) successive weeks in some newspaper of
general circulation published in the province, as the
court shall deem best.
113
Sec. 3. Hearing and judgment. — U p o n satisfac-

tory proof in open court on the date fixed in the
order that such order has been published as directed
and that the person died intestate, seized of real or
personal property in the Philippines, leaving no heir
or person entitled to the same, and no sufficient
cause being shown to the contrary, the court shall
a d j u d g e that the estate of the d e c e a s e d in the
Philippines, after the payment of j u s t debts a n d
charges, shall escheat; and shall p u r s u a n t to law,
assign the personal estate to the municipality or city
where he last resided in the Philippines, a n d the real
estate to the municipalities or cities, respectively,
in which the same is situated. If the deceased n e v e r
resided in the Philippines, the w h o l e estate may be
assigned to the respective municipalities or cities
w h e r e the same is located. Such estate shall be for
the benefit of public schools, a n d p u b l i c c h a r i t a b l e
institutions a n d centers in said municipalities or
cities.
The court, at the instance of an interested party,

or on its o w n motion, may o r d e r the establishment
of a p e r m a n e n t trust, so that only the income f r o m
the property shall be used.
Sec. 4. When and by whom claim to estate filed. —

If a devisee, legatee, heir, w i d o w , w i d o w e r , or other
person entitled to such estate a p p e a r s a n d files a
claim thereto w i t h the court w i t h i n five (5) y e a r s
from the date of such j u d g m e n t , such p e r s o n shall
have possession of a n d title to the same, or if sold,
the municipality or city shall be a c c o u n t a b l e to him
for the proceeds, after deducting r e a s o n a b l e charges
f o r the c a r e of the estate; b u t a c l a i m not m a d e
within said time shall b e f o r e v e r b a r r e d .
114
RULE 91 ESCHEATS SEC. 5
NOTE
1. In connection with Sec. 3, see Art. 1013 of the Civil

Code which is substantially to the same effect. Regarding
Sec. 4, see A r t . 1014 of the Civil Code which provides that
the 5-year period is to be reckoned "from the date the
property was delivered to the State" and further directs
that if the property had been sold, the municipality or city
shall be accountable only "for such part of the proceeds as
may not have been lawfully spent."
Sec. 5. Other actions for escheat. — U n t i l other-

wise p r o v i d e d by law, actions for reversion or
escheat of p r o p e r t i e s alienated in violation of the
Constitution or of any statute shall be g o v e r n e d by
this r u l e , except that the action shall be instituted
in the p r o v i n c e w h e r e the l a n d lies in w h o l e or in
part.
NOTES
1. Actions for reversion are proper in illegal sales of

land to disqualified aliens. Unlike a petition for escheat,
the action for reversion shall be filed in the province where
the land lies in whole or in part.
2. Rule 91 does not apply to properties taken from

enemy nationals after W o r l d War II and which were
required to be transferred to the Republic under the
Philippine Property Act of 1946. Such properties belong
to the Government not by virtue of escheat proceedings
but as required by said Act. Even if title thereto was not
transferred to the Government, said properties cannot be
escheated in favor of a local government (Republic vs. IAC,
et al., G.R. No. 73831, Feb. 27, 1987).
3. The 1987 Constitution requires that "(t)he Congress
shall provide efficacious procedures and adequate remedies
for the reversic n to the State of all lands of the public
115
2. GUARDIANSHIP
R U L E 92
VENUE
RA 8369, read!
Section 1. Where to institute proceedings. —
G u a r d i a n s h i p of the p e r s o n or estate of a m i n o r or
incompetent m a y be instituted in the C o u r t of First
I n s t a n c e of the p r o v i n c e , or in the justice of the
p e a c e court of the municipality, or in the municipal
c o u r t o f the c h a r t e r e d city w h e r e the m i n o r o r
incompetent p e r s o n resides, a n d if he resides in a
f o r e i g n country, in the C o u r t of First Instance of the
p r o v i n c e w h e r e i n his p r o p e r t y or p a r t thereof is
situated; p r o v i d e d , however, that w h e r e the value
of the p r o p e r t y of such m i n o r or incompetent
exceeds the j u r i s d i c t i o n of the justice of the peace
or m u n i c i p a l court, the p r o c e e d i n g s shall be
instituted in the C o u r t of First Instance.
In the City of M a n i l a the proceedings shall be
instituted in the Juvenile a n d Domestic Relations
Court.
NOTES
1. The provisions of Rules 92 to 97 have been amended

by the Supreme Court in its resolution of April 1, 2003 in
A . M . N o . 03-02-05-SC approving the Rule on Guardianship
of Minors. Sec. 27 thereof provides that "(t)his Rule
amends Rules 92 to 97, inclusive, of the Rules of Court on
guardianship of minors. Guardianship of incompetents
who are not minors shall continue to be under the
jurisdiction of the regular courts and governed by the
Rules of Court." The complete text of said amendatory Rule
is reproduced after Rule 97.
117
2. There are three kinds of guardians under the law:

(a) the legal guardian, who is such by provision of law
without the need of judicial appointment, as in the case of
the parents over the persons of their minor children, or
the father, or in his absence, the mother, with respect to
property of the minor children not exceeding f*2,000 in
value (Art. 320, Civil Code, et seq.; see, however, Art. 225
of the Family Code which supplanted said provisions and
increased the amount involved); (b) the guardian ad litem,
who may be any competent person appointed by the court
for purposes of a particular action or proceeding involving
a minor; and (c) the judicial guardian, who is a competent
person appointed by the court over the person and/or
property of the ward to represent the latter in all his civil
acts, and transactions, and is the one contemplated in the
aforementioned Rules.
3. Judicial guardianship may be with respect only to

the person of the ward, or of his property, or of both. Where
the ward has no property, guardianship may be only with
respect to his person; in the case of a nonresident ward,
guardianship may be with respect only to his property.
While there is no prohibition against the appointment
of different judicial guardians, one for the person and one
for the property of the ward, in the case of a resident ward
with property, the practice is to appoint only one judicial
guardian for both his person and property unless otherwise
called for by the circumstances of his case.
4. Under B.R Big. 129, the inferior courts no longer

have concurrent jurisdiction to appoint judicial guardians
over the persons or properties of minors or incompetents.
However, where the minor or incompetent is a party to an
action in an inferior court, he may be assisted by, or may
sue or be sued therein through his legal guardian or the
inferior court may appoint a guardian ad litem for him.
118
RULE 92 VENUE SECS. 2-3
5. Where, in a guardianship case an issue arises as to

who has a better right or title to properties conveyed in
the course of the guardianship proceedings, the controversy
should be threshed out in a separate ordinary action as
the dispute is beyond the jurisdiction of the guardianship
court (Parco, et al. vs. CA, et al., L-83152, Jan. 30, 1982).
However, where the right or title of the ward to the property
is clear and indisputable, the guardianship court may issue
an order directing its delivery or return (Paciente vs.
Dacuycuy, etc., et al., G.R. No. 58319, June 29, 1982).
Sec. 2. Meaning of word "incompetent." — U n d e r

this r u l e , the w o r d "incompetent" includes persons
suffering the penalty of civil interdiction or w h o are
hospitalized lepers, p r o d i g a l s , deaf a n d d u m b w h o
a r e u n a b l e t o r e a d a n d w r i t e , those w h o a r e o f
u n s o u n d mind, even though they have lucid
intervals, a n d persons not b e i n g of u n s o u n d mind,
b u t by r e a s o n of age, disease, w e a k mind, a n d other
similar causes, cannot, without outside aid, take care
of themselves a n d m a n a g e their property, becoming
t h e r e b y an easy p r e y for deceit a n d exploitation.
Sec. 3. Transfer of venue. — T h e c o u r t t a k i n g

c o g n i z a n c e of a g u a r d i a n s h i p p r o c e e d i n g , m a y
transfer the same to the court of another province
or municipality w h e r e i n the w a r d has acquired real
property, if he has transferred thereto his bona-fide
r e s i d e n c e , a n d the l a t t e r c o u r t shall h a v e full
jurisdiction to continue the proceedings, without
r e q u i r i n g payment of additional court fees.
119
R U L E 93
APPOINTMENT OF GUARDIANS
Section 1. Who may petition for appointment of

guardian for resident. — A n y relative, friend, or other
person on behalf of a resident minor or incompetent
w h o has no parent or lawful g u a r d i a n , or the minor
himself if fourteen years of age or over, may petition
the court having jurisdiction for the appointment
of a general g u a r d i a n for the person or estate, or
both, of such minor or incompetent. An officer of
the Federal Administration of the U n i t e d States in
the Philippines may also file a petition in f a v o r of a
w a r d thereof, and the Director of H e a l t h , in f a v o r
of an insane person w h o should be hospitalized or
in favor of an isolated leper.
Sec. 2. Contents of petition. — A petition f o r the

appointment of a general g u a r d i a n must show, so
far as k n o w n to the petitioner:
( a ) The jurisdictional facts;
( b ) The minority or incompetency r e n d e r i n g the
appointment necessary or convenient;
(c) T h e n a m e s , a g e s , a n d r e s i d e n c e s o f t h e
relatives of the minor or incompetent, a n d of the
persons h a v i n g him in their care;
( d ) T h e p r o b a b l e v a l u e a n d c h a r a c t e r o f his
estate;
( e ) The name of the person f o r w h o m letters of
guardianship a r e p r a y e d .
The petition shall be verified; b u t no defect in
the petition or verification shall r e n d e r v o i d the
issuance of letters of g u a r d i a n s h i p .
120
RULE 93 APPOINTMENT OF GUARDIANS SECS. 1-2, 6, 3
Sec. 6. When and how guardian for nonresident

appointed. Notice. — W h e n a p e r s o n l i a b l e to be put
u n d e r g u a r d i a n s h i p resides without the Philippines
b u t has estate therein, any relative or friend of such
p e r s o n , o r a n y o n e i n t e r e s t e d i n his e s t a t e , i n
expectancy or otherwise, may petition a court
h a v i n g j u r i s d i c t i o n f o r the a p p o i n t m e n t of a
g u a r d i a n for the estate, a n d if, after notice given to
such p e r s o n a n d in such m a n n e r as the court deems
proper, by publication or otherwise, and hearing, the
court is satisfied that such nonresident is a m i n o r
or incompetent r e n d e r i n g a g u a r d i a n necessary or
c o n v e n i e n t , it m a y a p p o i n t a g u a r d i a n f o r such
estate.
NOTES
1. The courts should not appoint as a guardian any

person who is not personally subject to their jurisdiction,
such as nonresidents of the Philippines (Guerrero, etc. vs.
Teran, 13 Phil. 212).
2. In the case of a minor, the petition may be filed

by the Department of Social Welfare and Development
(Sec. 20, P.D. 603) and in the case of an insane minor who
needs to be hospitalized, by the Secretary of Health (see
A.M. No. 03-02-05-SC).
3. Under the present Rules, notice of the petition for

the appointment of a general guardian must now be given
to all relatives of the ward, instead of only the next of kin
as required under the old Rules. The giving of notice to
said relatives is a jurisdictional requirement (see Yangco
vs. CFI of Manila, et al., 29 Phil. 183).
Sec. 3. Court to set time for hearing. Notice thereof.

— WTien a petition for appointment of a general
guardian is filed, the court shall fix a time and place
121
for hearing the same, and shall cause r e a s o n a b l e

notice thereof to be given to the persons mentioned
in the petition residing in the province, including
the minor if above 14 years of age or the incompetent
himself, and may direct other g e n e r a l or special
notice thereof to be given.
NOTE
1. Service of the above-stated notice upon the minor

more than 14 years of age or the incompetent is jurisdic-
tional (Nery, et al. vs. Lorenzo, L-28096 & L-23376,
April 27, 1972).
Sec. 4. Opposition to petition. — A n y interested

person may, by filing a w r i t t e n opposition, contest
the petition on the g r o u n d of majority of the alleged
minor, competency of the alleged incompetent, or
the unsuitability of the p e r s o n f o r w h o m letters a r e
prayed, and may p r a y that the petition be dismissed,
or that letters of g u a r d i a n s h i p issue to himself, or
to any suitable p e r s o n n a m e d in the opposition.
Sec. 5. Hearing and order for letters to issue. — At

the h e a r i n g of the petition the a l l e g e d incompetent
must be present if a b l e to attend, a n d it must be
s h o w n that the r e q u i r e d notice h a s b e e n g i v e n .
T h e r e u p o n the court shall h e a r the evidence of the
parties in support of their respective allegations,
and, if the p e r s o n in q u e s t i o n is a minor, or
incompetent it shall appoint a suitable g u a r d i a n of
his person or estate, or b o t h , w i t h the p o w e r s a n d
duties hereinafter specified.
NOTES
1. In the appointment of a guardian the courts should

take into consideration the competency, character and
122
RULE 93 APPOINTMENT OF GUARDIANS SEC. 7
financial condition of the prospective guardian. No person

should be appointed as guardian if his interests conflict
with those of the ward or if he is a nonresident of the
Philippines (see Guerrero, etc. vs. Teran, supra). The court
has no jurisdiction to appoint a guardian over the person
of a nonresident minor, but there can be guardianship over
the property of such nonresident minor (see Sec. 6 of this
Rule).
2. T h e appointment of a guardian is good until set

aside and, despite an appeal therefrom, the guardian can
do whatever is necessary, under the direction of the court,
for the protection of the ward or his property (Zafra-Sarte
vs. CA, et al., L-23976, Mar. 30, 1970).
Sec. 7. Parents as guardians. — W h e n t h e

p r o p e r t y of the child u n d e r p a r e n t a l authority is
w o r t h t w o thousand pesos or less, the father or the
mother, without the necessity of court appointment,
shall be his legal g u a r d i a n . W h e n the p r o p e r t y of
the child is w o r t h m o r e than t w o thousand pesos,
the f a t h e r o r the m o t h e r shall b e c o n s i d e r e d a s
g u a r d i a n of the child's property, with the duties a n d
obligations of guardians u n d e r these rules, and shall
file the petition r e q u i r e d by section 2 hereof. For
g o o d r e a s o n s t h e c o u r t may, h o w e v e r , a p p o i n t
another suitable person.
NOTES
1. The text of Sec. 6 of this Rule appears after Sec. 2

hereof.
2. Sec. 7 of this Rule was based on Arts. 320 and 326
of the Civil Code, but said provisions have been amended
by the Family Code, as follows:
"Art. 225. T h e father or, in his absence or
incapacity, the mother, shall be the legal guardian of
123
the property of the unemancipated child without the

necessity of a court appointment.
Where the value of the property or the annual
income of the child exceeds P50,000, the parent
concerned shall be required to furnish a bond in such
amount as the court may determine but not less than
ten per centum (10%) of the value of the property or
annual income, to guarantee the performance of the
obligations prescribed for general guardians.
A verified petition for approval of the bond shall
be filed in the proper court of the place where the child
resides, or, if the child resides in a foreign country, in
the proper court of the place where the property or
any part thereof is situated.
The petition shall be docketed as a summary
special proceeding in which all incidents and issues
regarding the performance of the obligations referred
to in the second paragraph of this Article shall be heard
and resolved. All such incidents and issues shall be
decided in an expeditious and inexpensive manner
without regard to technical rules.
T h e ordinary rules on guardianship shall be
merely suppletory except when the child is under
substitute parental authority, or the guardian is a
stranger, or a parent has remarried, in which case the
ordinary rules on guardianship shall apply."
Sec. 8. Service of judgment. — F i n a l o r d e r s or

judgments u n d e r this r u l e shall be served u p o n the
civil r e g i s t r a r of the municipality or city w h e r e the
minor or incompetent person resides or w h e r e his
property or p a r t thereof is situated.
124
R U L E 94
BOND OF GUARDIANS
Section 1. Bond to be given before issuance of letters.

Amount. Conditions. — B e f o r e a g u a r d i a n appointed
enters u p o n the execution of his trust, or letters of
g u a r d i a n s h i p issue, he shall give a b o n d , in such sum
as the court directs, conditioned as follows:
( a ) To make a n d r e t u r n to the court, within three
(3) months, a true a n d complete inventory of all the
estate, r e a l a n d personal, of his w a r d w h i c h shall
c o m e t o his p o s s e s s i o n o r k n o w l e d g e o r t o the
possession or k n o w l e d g e of any other person for him;
( b ) To faithfully execute the duties of his trust,
to m a n a g e a n d dispose of the estate according to
these rules f o r the best interests of the w a r d , and to
p r o v i d e f o r the p r o p e r care, custody, and education
of the w a r d ;
( c ) To r e n d e r a true a n d just account of all the
estate of the w a r d in his hands, and of ail proceeds
or i n t e r e s t d e r i v e d t h e r e f r o m , a n d of the
management and disposition of the same, at the time
designated by these rules a n d such other times as
the court directs, and at the expiration of his trust
to settle his accounts with the court and deliver and
p a y o v e r all the estate, effects, a n d moneys
r e m a i n i n g in his hands, or due from him on such
settlement, to the person lawfully entitled thereto;
( d ) To p e r f o r m all orders of the court by him to
b e performed.
Sec. 2. When new bond may be required and old

sureties discharged. — W h e n e v e r it is d e e m e d
necessary, the court may require a n e w b o n d to be
g i v e n b y the g u a r d i a n , a n d may d i s c h a r g e the
125
sureties on the old b o n d from further liability, after

due notice to interested persons, w h e n no injury can
result therefrom to those interested in the estate.
Sec. 3. Bonds to be filed. Actions thereon. — Every

bond given by a g u a r d i a n shall be filed in the office
of the clerk of court, and, in case of b r e a c h of a
condition thereof, may be prosecuted in the same
proceeding or in a separate action for the use and
benefit of the w a r d or of any other p e r s o n legally
interested in the estate.
126
R U L E 95
SELLING AND ENCUMBERING

PROPERTY OF WARD
Section 1. Petition of guardian for leave to sell or

encumber estate. — W h e n the income of an estate under
g u a r d i a n s h i p is insufficient to maintain the w a r d
a n d his family, or to m a i n t a i n a n d educate the w a r d
w h e n a minor, or w h e n it a p p e a r s that it is for the
benefit of the w a r d that his r e a l estate or some part
thereof be sold, or m o r t g a g e d or otherwise
e n c u m b e r e d , a n d the proceeds thereof put out at
interest, or invested in some productive security, or
in the i m p r o v e m e n t or security of other real estate
of the w a r d , the g u a r d i a n may present a verified
petition to the court by w h i c h he w a s appointed
setting forth such facts, a n d p r a y i n g that an o r d e r
issue authorizing the sale or encumbrance.
Sec. 2. Order to show cause thereupon. — If it seems

p r o b a b l e that such sale or encumbrance is necessary,
or w o u l d be beneficial to the w a r d , the court shall
m a k e an o r d e r directing the next of kin of the w a r d ,
and all persons interested in the estate, to a p p e a r
at a r e a s o n a b l e time and place therein specified to
show cause w h y the p r a y e r of the petition should
not be granted.
Sec. 3. Hearing on return of order. Cost. — At the

time a n d p l a c e d e s i g n a t e d in the o r d e r to s h o w
cause, the court shall hear the proofs and allegations
of the petitioner and next of kin and other persons
interested, together with their witnesses, and grant
or refuse the p r a y e r of the petition as the best
interests of the w a r d require. The court shall make
such o r d e r as to costs of the hearing as may be just.
127
Sec. 4. Contents of order for sale or encumbrance,

and how long effective. Bond. — If, after full exami-
nation, it appears that it is necessary or w o u l d be
beneficial to the w a r d , to sell or encumber the estate,
or some portion of it, the court shall o r d e r such sale
or encumbrance and that the proceeds thereof be
expended for the maintenance of the w a r d a n d his
family, or the education of the w a r d , if a minor, or
for the putting of the same out at interest, or the
investment of the same as the circumstances may
require. The o r d e r shall specify the cause w h y the
sale or encumbrance is necessary or beneficial, and
may direct that estate o r d e r e d sold be disposed of
at either p u b l i c or p r i v a t e sale, s u b j e c t to such
conditions as to the time a n d m a n n e r of payment,
and security w h e r e a part of the payment is deferred,
as in the discretion of the court a r e d e e m e d most
beneficial to the w a r d . T h e o r i g i n a l b o n d of the
g u a r d i a n shall s t a n d a s security f o r the p r o p e r
a p p r o p r i a t i o n of the proceeds of the sale, b u t the
j u d g e may, i f d e e m e d e x p e d i e n t , r e q u i r e a n
additional b o n d as a condition for the g r a n t i n g of
the o r d e r o f s a l e . N o o r d e r o f s a l e g r a n t e d i n
pursuance of this section shall continue in force for
m o r e than one (1) y e a r after g r a n t i n g the same,
without a sale b e i n g h a d .
Sec. 5. Court may order investment of proceeds and

direct management of estate. — The court m a y authorize
and r e q u i r e the g u a r d i a n to invest the p r o c e e d s of
sales or encumbrances, a n d any other of his w a r d ' s
money in his hands in r e a l estate or o t h e r w i s e , as
shall be for the best interest of all concerned, a n d
may make such other o r d e r s for the m a n a g e m e n t ,
investment, and disposition of the estate a n d effects
as circumstances may r e q u i r e .
128
NOTES
1. For the sale or encumbrance of property of the ward,

a verified petition therefor is required (Sec. 1 of this Rule),
but no such verification is required for that purpose
with respect to the estate of a decedent (see Sees. 1 and 4,
Rule 89) and a mere motion therein will suffice.
2. The notice to the next of kin required by Sec. 2 of

this Rule is jurisdictional (Singco, et al. vs Longa, et al.,
51 Phil. 507). T h e next of kin referred to does not mean
the next of kindred but the relatives whose relationships
are such as to entitle them to shares in the estate as
distributees (Lopez vs. Teodoro, etc., et al., 86 Phil. 499;
Pardo de Tavera vs. El Hogar Filipino, Inc., et al., 98 Phil.
481).
3. U n l i k e t h e p o w e r g r a n t e d to e x e c u t o r s and
administrators, an order empowering the guardian to sell
property of his ward shall not be effective for more than
one year after it has been granted. In the case of mortgages
and other encumbrances, the one-year period does not
apply.
4. A guardian may lease property of the ward, but if
the lease is to be recorded there must be proper authority
by the court (see Art. 1647, Civil Code). It is believed that
the same rule applies if the term of the lease is more than
one year as the same is an act of dominion (see Art. 1878,
Civil Code). Note, however, the discussion of a similar
situation involving administrators or executors in Note 2
under Sec. 3, Rule 84.
5. Appeal, not certiorari or mandamus, is the proper
remedy against an order of the court a quo authorizing the
sale of a ward's property (Lopez vs. Teodoro, etc., et al.,
supra).
129
R U L E 96
GENERAL POWERS A N D DUTIES OF GUARDIANS
Section 1. To what guardianship shall extend. — A

guardian appointed shall have the care and custody
of the person of his w a r d , and the management of
his estate, or the management of the estate only, as
the case may b e . T h e g u a r d i a n of the estate of a
nonresident shall have the management of all the
estate of the w a r d within the Philippines, a n d no
court other than that in w h i c h such g u a r d i a n w a s
a p p o i n t e d shall h a v e j u r i s d i c t i o n o v e r the
guardianship.
Sec. 2. Guardian to pay debts of ward. — E v e r y

g u a r d i a n must pay the w a r d ' s just debts out of his
personal estate a n d the income of his r e a l estate, if
sufficient; if not, then out of his r e a l estate u p o n
o b t a i n i n g a n o r d e r f o r the sale o r e n c u m b r a n c e
thereof.
Sec. 3. Guardian to settle accounts, collect debts and

appear in actions for ward. — A g u a r d i a n must settle
all accounts of his w a r d , a n d d e m a n d , sue for, a n d
receive all debts due him, or may, w i t h the a p p r o v a l
o f the c o u r t , c o m p o u n d f o r t h e s a m e a n d g i v e
discharges to the debtor, on receiving a f a i r a n d just
d i v i d e n d o f the estate a n d effects; a n d h e s h a l l
a p p e a r for a n d represent his w a r d in all actions a n d
special proceedings, unless another p e r s o n be
appointed for that p u r p o s e .
Sec. 4. Estate to be managed frugally, and proceeds

applied to maintenance of ward. — A g u a r d i a n must
m a n a g e the estate of his w a r d f r u g a l l y a n d w i t h o u t
waste, a n d apply the income a n d profits thereof, so
130
RULE 96 POWERS AND DUTIES OF GUARDIANS SECS. 5-7
f a r as m a y be necessary, to the c o m f o r t a b l e a n d
suitable maintenance of the w a r d a n d his family, if
t h e r e b e any; a n d i f such income a n d profits b e
insufficient f o r the p u r p o s e , the g u a r d i a n may sell
or e n c u m b e r the r e a l estate, u p o n b e i n g authorized
by o r d e r so to do, and a p p l y so much of the proceeds
as m a y be necessary to such maintenance.
Sec. 5. Guardian may be authorized to join in

partition proceedings after hearing. — T h e court may
a u t h o r i z e the g u a r d i a n to j o i n in an assent to a
p a r t i t i o n of r e a l or p e r s o n a l estate held by the w a r d
jointly or in common w i t h others, b u t such authority
shall only be granted after hearing, u p o n such notice
to relatives of the w a r d as the court may direct, and
a c a r e f u l i n v e s t i g a t i o n as to the necessity a n d
p r o p r i e t y of the p r o p o s e d action.
Sec. 6. Proceedings when person suspected of

embezzling or concealing property of ward. — U p o n
complaint of the g u a r d i a n or w a r d , or of any person
h a v i n g actual or prospective interest in the estate
of the w a r d as creditor, heir, or otherwise, that any
one is suspected of h a v i n g embezzled, concealed, or
conveyed a w a y any money, goods, or interest, or a
w r i t t e n instrument, b e l o n g i n g to the w a r d or his
estate, the court may cite the suspected person to
a p p e a r for examination touching such money, goods,
interest or instrument, and make such orders as will
s e c u r e the e s t a t e a g a i n s t s u c h e m b e z z l e m e n t ,
concealment, or conveyance.
Sec. 7. Inventories and account of guardians, and

appraisement of estates. — A g u a r d i a n must render to
the court an inventory of the estate of his w a r d
within three (3) months after his appointment, and
annually after such appointment an inventory and
131
account, the r e n d i t i o n of any of w h i c h may be

compelled upon the application of an interested
person. Such inventories a n d accounts shall be
sworn to by the guardian. A l l the estate of the w a r d
described in the first inventory shall be appraised.
In the a p p r a i s e m e n t , the court may r e q u e s t the
assistance of one or more of the inheritance tax
appraisers. A n d w h e n e v e r any p r o p e r t y of the w a r d
not included in an inventory a l r e a d y r e n d e r e d is
discovered, or succeeded to, or acquired by the w a r d ,
like proceedings shall be h a d for s e c u r i n g an
inventory and appraisement thereof within three (3)
months after such discovery, succession or
acquisition.
Sec. 8. When guardian's account presented for

settlement. Expenses and compensation allowed. — U p o n
the e x p i r a t i o n o f a y e a r f r o m t h e t i m e o f h i s
a p p o i n t m e n t , a n d a s often t h e r e a f t e r a s m a y b e
r e q u i r e d , a g u a r d i a n must present his account to
the c o u r t f o r s e t t l e m e n t a n d a l l o w a n c e . I n the
settlement of the account, the g u a r d i a n , o t h e r than
a p a r e n t , shall be a l l o w e d the a m o u n t of his
reasonable expenses i n c u r r e d in the execution of his
trust a n d also such compensation f o r his services as
the c o u r t d e e m s j u s t , n o t e x c e e d i n g f i f t e e n p e r
centum of the net income of the w a r d .
NOTES
1. T h e executor or administrator must render an

account of his administration within one year and at any
other time when required by the court. In the case of the
guardian, he has to render an inventory and account
annually (Sec. 7).
2. A guardian, just like a trustee, is prohibited under

Art. 736 of the Civil Code from making a donation of the
132
RULE 96 POWERS AND DUTIES OF GUARDIANS SEC. 8
properties entrusted to him (see Araneta us. Perez. L-18872,

July 15, 1966).
3. Since only the estate of the ward should be included
in the inventory, in the case of a married woman under
guardianship by reason of insanity, her half of the property
in a subsisting conjugal partnership should not be included
in the inventory (Phil. Trust Co., etc. us. Macuan, 54 Phil.
655) since the determination thereof requires the prior
liquidation of the conjugal partnership.
133
R U L E 97
TERMINATION OF GUARDIANSHIP
Section 1. Petition that competency of ward be

adjudged and proceedings thereon. — A person w h o has
been declared incompetent for any reason, or his
guardian, relative, or friend, may petition the court
t o h a v e his p r e s e n t c o m p e t e n c y j u d i c i a l l y
determined. The petition shall be verified by oath,
and shall state that such person is then competent.
Upon receiving the petition, the court shall fix a time
for h e a r i n g the questions raised thereby, a n d cause
reasonable notice thereof to be given to the g u a r d i a n
of the person so declared incompetent, a n d to the
w a r d . On the trial, the g u a r d i a n or relatives of the
w a r d , and, in the discretion of the court, any other
person, may contest the right to the relief demanded,
and witnesses may be called a n d e x a m i n e d by the
parties or by the court on its o w n motion. If it be
found that the person is no l o n g e r incompetent, his
competence shall be a d j u d g e d a n d the g u a r d i a n s h i p
shall cease.
Sec. 2. When guardian removed or allowedto resign.

New appointment. — W h e n a g u a r d i a n becomes insane
or otherwise i n c a p a b l e of d i s c h a r g i n g his trust or
unsuitable therefor, or has w a s t e d or m i s m a n a g e d
the estate, or failed for thirty (30) days after it is
due to r e n d e r an account or make r e t u r n , the court
may, upon reasonable notice to the g u a r d i a n , remove
him, and compel him to s u r r e n d e r the estate of the
w a r d to the p e r s o n f o u n d to be l a w f u l l y entitled
thereto. A g u a r d i a n may resign w h e n it a p p e a r s
p r o p e r to a l l o w the same; a n d u p o n his resignation
or removal the court may appoint a n o t h e r in his
place.
134
RULE 97 TERMINATION OF GUARDIANSHIP SEC. 3
NOTES
1. The court which appointed the guardian is also the

court competent to decide the petition for restoration to
capacity which is merely a continuation of the original
guardianship proceeding (Crisostomo vs. Endencia, etc.,
et al., 66 Phil. 1).
2. The petition for the removal of the guardian must

be filed in the same guardianship proceeding. It must be
based only on the grounds in Sec. 2 of this Rule which must
be satisfactorily proved (Vda. de Bengson vs. PNB, et al.,
L-17066, Dec. 28, 1961).
3. The notice to the guardian and the ward required

by Sec. 1 of this Rule is only procedural, not jurisdictional,
and the lack thereof affects the validity of the proceedings
only if prejudice is caused thereby (El Banco Espahol-
Filipino vs. Palanca, 37 Phil. 921).
Sec. 3. Other termination of guardianship. — The

m a r r i a g e or voluntary emancipation of a minor w a r d
terminates the g u a r d i a n s h i p of the person of the
w a r d , a n d shall e n a b l e the minor to administer his
p r o p e r t y as though he w e r e of age, but he cannot
b o r r o w money or alienate or encumber real property
w i t h o u t the consent of his f a t h e r or mother, or
g u a r d i a n . He can sue and be sued in court only with
the assistance of his father, mother or guardian. The
g u a r d i a n of any person may be discharged by the
court w h e n it appears, u p o n the application of the
w a r d o r o t h e r w i s e , that the g u a r d i a n s h i p i s n o
longer necessary.
NOTES
1. Marriage or voluntary emancipation terminates

guardianship only over the person but not the property of
the ward.
135
2. The pertinent provisions of the Civil Code were as

follows:
"Art. 399. Emancipation by marriage or by
v o l u n t a r y concession shall t e r m i n a t e parental
authority over the child's person. It shall enable the
minor to administer his property as though he were
of age but he cannot borrow money or alienate or
encumber real property without the consent of his
father or mother, or guardian. He can sue and be sued
in court only with the assistance of his father, mother
or guardian.
Art. 400. In order that emancipation by con-
cession of the father or of the mother may take place,
it is required that the minor be eighteen years of age,
and that he give his consent thereto."
Now, however, emancipation is governed by R . A . 6809 that
amended Arts. 234 and 236 of the Family Code which had
repealed the above provisions of the Civil Code.
Sec, 4. Record to be kept by the justice of the peace or

municipal judge. — W h e n a justice of the p e a c e or
municipal court takes cognizance of the proceedings
in p u r s u a n c e of the provisions of these r u l e s , the
r e c o r d of the proceedings shall be kept as in the
Court of First Instance.

judgments u n d e r this r u l e shall b e s e r v e d u p o n the
civil r e g i s t r a r of the municipality or city w h e r e the
minor or incompetent p e r s o n resides or w h e r e his
property or p a r t thereof is situated.
136
A . M . N O . 03-02-05-SC
RULE ON GUARDIANSHIP OF MINORS
S E C T I O N 1. Applicability of the Rule. — This Rule

shall apply to petitions for guardianship over the person
or property, or both, of a minor.
T h e father and the mother shall jointly exercise legal
guardianship o v e r the person and p r o p e r t y of their
unemancipated common child without the necessity of a
court appointment. In such case, this Rule shall be
suppletory to the p r o v i s i o n s of the Family Code on
guardianship.
SEC. 2. Who may petition for appointment of

guardian. — On grounds authorized by law, 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. The petition
may also be filed by the Secretary of Social Welfare and
Development and by the Secretary of Health in the case of
an insane minor who needs to be hospitalized.
SEC. 3. Where to file petition. — A petition for

guardianship over the person or property, or both, of a
minor may be filed in the Family Court of the province or
city where the minor actually resides. If he resides in a
foreign country, the petition shall be filed 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, cortinued absence, or incapacity of his
parents;
137
A.M. NO. 03-02-05-SC REMEDIAL LAW COMPENDIUM SECS. 5-6
(b) suspension, deprivation or termination of parental

authority;
(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 guardian's:
(a) moral character;
(b) physical, mental and psychological condition;
(c) financial status;
(d) relationship of trust with the minor;
(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. — In default of parents or
a court-appointed guardian, the court may appoint a
guardian of the person or property, or both, of a minor,
observing as far as practicable, the following order of
preference:
(a) the surviving grandparent and in case several
grandparents survive, the court shall select any
o f t h e m t a k i n g i n t o a c c o u n t all r e l e v a n t
considerations;
(b) the oldest brother or sister of the minor over
t w e n t y - o n e y e a r s o f a g e , unless u n f i t o r
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.
138
A.M. NO. 03-02-05-SC GUARDIANSHIP OF MINORS SECS. 7-9
SEC. 7. Contents of petition. — A petition for the

appointment of general guardian must allege the following:
(a) The jurisdictional facts;
(b) The name, age and residence of the prospective
ward;
(c) The ground rendering the appointment necessary
or convenient;
(d) T h e death of the parents of the minor or the
termination, deprivation or suspension of their
parental authority,
(e) The remarriage of the surviving parent;
(f) T h e 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.
no requirement of publication.
SEC. 8. Time and notice of hearing. — When a
petition for the appointment of a general guardian is filed,
the court shall fix a time and place for its hearing, and
shall cause reasonable notice to be given to the persons
mentioned in the petition, including the minor if he is
fourteen years of age or over, and may direct other general
or special notice to be given.
SEC. 9. Case study report. — The court shall order a

social worker to conduct a case study of the minor and all
the prospective guardians and submit his report and
recommendation to the court for its guidance before the
scheduled hearing. The social worker may intervene on
139
behalf of the minor if he finds that the petition for

guardianship should be denied.
SEC. 10. Opposition to petition. — Any interested

person may contest the petition by filing a written
opposition based on such grounds as the majority of the
minor or the unsuitability of the person for whom letters
are prayed, and pray that the petition be denied, or that
letters of guardianship issue to himself, or to any suitable
person named in the opposition.
SEC. 11. Hearing and order for letters to issue. — At

the hearing of the petition, it must be shown that the
r e q u i r e m e n t of notice has been complied w i t h . T h e
prospective ward shall be presented to the court. T h e court
shall hear the evidence of the parties in support of their
respective allegations. If warranted, the court shall appoint
a suitable guardian of the person or property, or both, of
the minor.
A t the d i s c r e t i o n o f the court, the h e a r i n g o n

guardianship may be closed to the public and the records
of the case shall not be released without its approval.
SEC. 12. When and how a guardian of the property

for nonresident minor is appointed; notice. — When the
minor resides outside the Philippines but has property in
the Philippines, any relative or friend of such minor, or
any one interested in his property, in expectancy or
o t h e r w i s e , may p e t i t i o n t h e F a m i l y C o u r t for t h e
appointment of a guardian over the property.
Notice of hearing of the petition shall be given to the
minor by publication or any other means as the court may
deem proper. T h e court may dispense with the presence of
the nonresident minor.
If after hearing the court is satisfied that such non-
resident is a minor and a guardian is necessary or
140
A.M. N O . 03-02-05-SC GUARDIANSHIP OF MINORS SECS. 13-14
convenient, it may appoint a guardian over his property.
SEC. 13. Service of final and executory judgment or

order. — T h e final and executory judgment or order shall
be served upon the Local Civil Registrar of the municipality
or city where the minor resides and the Register of Deeds
of the place where his property or part thereof is situated
shall annotate the same in the corresponding title, and
report to the court his compliance within fifteen days from
receipt of the order.
SEC. 14. Bond of guardian; amount; conditions. —

Before he enters upon the execution of his trust, or letters
of guardianship issue, an appointed guardian may be
required to post a bond in such sum as the court shall
determine and conditioned as follows:
(a) To make and return to the court, within three
m o n t h s after the issuance of his l e t t e r s of
guardianship, a true and complete inventory of
all the property, real and personal, of his ward
which shall come to his possession or knowledge
or to the possession or knowledge of any other
person in his behalf;
(b) To faithfully execute the duties of his trust, to
manage and dispose of the property, according to
this rule for the best interests of the ward, and to
provide for his proper care, custody and education;
(c) To render a true and just account of all the
property of the ward in his hands, and of all
proceeds or interest derived therefrom, and of the
management and disposition of the same, at the
time designated by this rule and such other times
as the court directs; and at the expiration of his
trust, to settle his accounts with the court and
deliver and pay over all the property, effects, and
monies remaining in his hands, or due from him
on such settlement, to the person lawfully entitled
141
thereto; and
(d) To perform all orders of the court and such other
duties as may be required by law.
SEC. 15. Whereto file the bond; action thereon. — The

bond posted by a guardian shall be filed in the Family Court
and, in case of breach of any of its conditions, the guardian
may be prosecuted in the same proceeding for the benefit
of the ward or of any other person legally interested in the
property.
W h e n e v e r necessary, the court may r e q u i r e the
guardian to post a new bond and may discharge from
further liability the sureties on the old bond after due notice
to interested persons, if no injury may result therefrom to
those interested in the property.
SEC. 16. Bond of parents as guardians of property of

minor. — If the market value of the property or the annual
income of the child exceeds r*50,000.00, t h e parent
concerned shall furnish a bond in such amount as the court
may determine, but in no case less than ten per centum of
the value of such property or annual income, to guarantee
the performance of the obligations prescribed for general
guardians.
A verified petition for approval of the bond shall be

filed in the Family Court of the place where the child resides
or, if the child resides in a foreign country, in the Family
Court of the place where the property or any part thereof
is situated.
The petition shall be docketed as a summary special

proceeding in which all incidents and issues regarding the
performance of the obligations of a general guardian shall
be heard and resolved.
SEC. 17. General duties of guardian. — A guardian

shall have the care and custody of the person of his ward
142
A.M. NO. 03-02-05-SC GUARDIANSHIP OF MINORS SEC. 17
and the management of his property, or only the manage-

ment of his property. The guardian of the property of a
nonresident minor shall have the management of his
property within the Philippines.
A guardian shall perform the following duties:

(a) To pay the just debts of the ward out of the
personal property and the income of the real
property of the ward if the same is sufficient;
otherwise, out of the real property of the ward
upon obtaining an order for its sale or encum-
brance;
( b ) To settle all accounts of his ward, and demand,
sue for, receive all debts due him, or may, with
the approval of the court, compound for the same
and give discharge to the debtor on receiving a
fair and just dividend of the property and effects;
and to appear for and represent the ward in all
actions and special proceedings, unless another
person is appointed for that purpose;
(c) To manage the property of the ward frugally and
without waste, and apply the income and profits
thereon insofar as may be necessary, to the
comfortable and suitable maintenance of the
w a r d ; and if such i n c o m e and p r o f i t s be
insufficient for that purpose, to sell or encumber
t h e r e a l or p e r s o n a l property, upon b e i n g
authorized by the court to do so;
(d) To consent to a partition of real or personal
property owned by the ward jointly or in common
with others upon authority granted by the court
after hearing, notice to relatives of the ward, and
a careful investigation as to the necessity and
propriety of the proposed action;
(e) To submit to the court a verified inventory of the
property of his ward within three months after
143
A.M. NO. 03-02-05 SC REMEDIAL LAW COMPENDIUM SEC. 18
his appointment, and annually thereafter, the

rendition of which may be required upon the
application of an interested person;
(f) To report to the court any property of the ward
not included in the inventory which is discovered,
or succeeded to, or acquired by the ward within
three months after such discovery, succession, or
acquisition; and
(g) To render to the court for its a p p r o v a l an
accounting of the property one year from his
appointment, and every year thereafter or as often
as may be required.
SEC. 18. Power and duty of the court. — T h e court

may:
(a) Request the assistance of one or more commis-
sioners in the appraisal of the property of the
ward reported in the initial and subsequent
inventories;
(b) Authorize reimbursement to the guardian, other
than a parent, of reasonable expenses incurred in
the execution of his trust, and allow payment of
compensation for his services as the court may
deem just, not exceeding ten per centum of the
net income of the ward, if any; otherwise, in such
amount the court determines to be a reasonable
compensation for his services; and
(c) Upon complaint of the guardian or ward, or of
any person having actual or prospective interest
in the property of the ward, require any person
suspected of having embezzled, concealed, or
disposed of any money, goods or interest, or a
written instrument belonging to the ward or his
property to appear for examination concerning
any thereof and issue such orders as would secure
144
A . M . NO. 03-02-05-SC GUARDIANSHIP OF MINORS SECS. 19-22
t h e p r o p e r t y a g a i n s t such e m b e z z l e m e n t ,
concealment or conveyance.
SEC. 19. Petition to sell or encumber property. —

When the income of a property under guardianship is
insufficient to maintain and educate the ward, or when it
is for his benefit that his personal or real property or any
part thereof be sold, mortgaged or otherwise encumbered,
and the proceeds invested in safe and productive security,
or in the improvement or security of other real property,
the guardian may file a verified petition setting forth such
facts, and praying that an order issue authorizing the sale
or encumbrance of the property.
SEC. 20. Order to show cause. — If the sale or

encumbrance is necessary or would be beneficial to the
ward, the court shall order his next of kin and all person/s
interested in the property to appear at a reasonable time
and place therein specified and show cause why the petition
should not be granted.
SEC. 21. Hearing on return of order; costs. — At the

time and place designated in the order to show cause, the
court shall hear the allegations and evidence of the
petitioner and next of kin, and other persons interested,
together with their witnesses; and grant or deny the
petition as the best interests of the ward may require.
SEC. 22. Contents of order for sale or encumbrance

and its duration; bond. — If, after full examination, it is
necessary or would be beneficial to the ward to sell or
encumber the property, or some portion of it, the court
shall order such sale or encumbrance the proceeds of which
shall be expended for the maintenance or the education of
the ward, or invested as the circumstances may require.
T h e order shall specify the grounds for the sale or
encumbrance and may direct that the property ordered sold
145
be disposed of at public sale, subject to such conditions as

to the time and manner of payment, and security where a
part of the payment is deferred. The original bond of the
guardian shall stand as security for the p r o p e r
appropriation of the proceeds of the sale or encumbrance,
but the court may, if deemed expedient, require an
additional bond as a condition for the sale or encumbrance.
The authority to sell or encumber shall not extend beyond
one year, unless renewed by the court.
SEC. 23. Court may order investment of proceeds and

direct management of property. — The court may authorize
and require the guardian to invest the proceeds of sales or
encumbrances, and any other money of his ward in his
hands, in real or personal property, for the best interests
of the ward, and may make such other orders for the
management, investment, and disposition of the property
and effects, as circumstances may warrant.
SEC. 24. Grounds for removal or resignation of

guardian. — When a guardian becomes insane or otherwise
incapable of discharging his trust or is found thereafter to
be unsuitable, or has wasted or mismanaged the property
of the ward, or has failed to render an account or make a
return for thirty days after it is due, the court may, upon
reasonable notice to the guardian, remove him as such and
require him to surrender the property of the ward to the
person found to be lawfully entitled thereto.
T h e court may allow the guardian to resign for
justifiable causes.
Upon the removal or resignation of the guardian, the
court shall appoint a new one.
No motion for removal or resignation shall be granted
unless the guardian has submitted the proper accounting
of the property of the ward and the court has approved the
same.
146
A . M . NO. 03-02-05-SC GUARDIANSHIP OF MINORS SECS. 25-28
SEC. 25. Ground for termination of guardianship.

The court motu proprio or upon verified motion of any
person allowed to file a petition for guardianship may
terminate the guardianship on the ground that the ward
has come of age or has died. The guardian shall notify the
court of such fact within ten days of its occurrence.
SEC. 26. Service of final and executory judgment or

order. —The final and executory judgment or order shall
be served upon the Local Civil Registrar of the municipality
or city where the minor resides and the Register of Deeds
of the province or city where his property or any part
thereof is situated. Both the Local Civil Registrar and the
Register of Deeds shall enter the final and executory
judgment or order in the appropriate books in their offices.
SEC. 27. Effect of the rule. — This Rule amends Rules

92 to 97 inclusive of the Rules of Court on guardianship of
minors. Guardianship of incompetents who are not minors
shall continue to be under the jurisdiction of the regular
courts and governed by the Rules of Court.
SEC. 28. Effectivity. — This Rule shall take effect on

May 1, 2003 following its publication in a newspaper of
general circulation not later than April 15, 2003.
147
3. T R U S T E E S
R U L E 98
TRUSTEES
Section 1. Where trustee appointed. — A trustee

necessary to carry into effect the provisions of a will
o r w r i t t e n instrument shall b e a p p o i n t e d b y the
Court of First Instance in w h i c h the w i l l w a s
allowed, if it be a will a l l o w e d in the P h i l i p p i n e s ,
o t h e r w i s e b y the C o u r t o f F i r s t I n s t a n c e o f the
province in w h i c h the property, or some p o r t i o n
thereof, affected by the trust is situated.
NOTES
1. This rule applies only to express trusts as these are

understood in Arts. 1443 to 1446 of the Civil Code, and
does not apply to implied trusts which arise by operation
of law. Express trusts necessarily involve three parties,
the trustor, the trustee and the beneficiary, also known as
the cestui que trust.
2. A petition for the appointment of a trustee may also

be filed in the administration proceedings over a testate
estate where the appointment of such a trustee is necessary
to carry into effect the provisions of a will, as where the
testator has provided therein that certain portions of his
property be placed in trust. Sec. 1, therefore, determines
the venue of the petition for the appointment of a trustee.
Sec. 2. Appointment and powers of trustee under will.

Executor of former trustee need not administer trust. — If
a testator has omitted in his will to appoint a trustee
i n the P h i l i p p i n e s , a n d i f s u c h a p p o i n t m e n t i s
necessary to c a r r y into effect the provisions of the
will, the p r o p e r C o u r t of First Instance may, after
148
RULE 98 TRUSTEES SECS. 3-4
notice to all persons interested, appoint a trustee

w h o shall h a v e the same rights, p o w e r s , a n d duties,
a n d in w h o m the estate shall vest, as if he h a d b e e n
a p p o i n t e d by the testator. No person succeeding to
a trust as e x e c u t o r or a d m i n i s t r a t o r of a f o r m e r
trustee shall be r e q u i r e d to accept such trust.
Sec. 3. Appointment and powers of new trustee under

written instrument. — W h e n a trustee u n d e r a written
i n s t r u m e n t declines, resigns, dies, or is r e m o v e d
b e f o r e the objects of the trust are accomplished, and
no a d e q u a t e p r o v i s i o n is m a d e in such instrument
f o r supplying the vacancy, the p r o p e r C o u r t of First
I n s t a n c e may, a f t e r d u e n o t i c e t o a l l p e r s o n s
interested, a p p o i n t a n e w trustee to act alone or
jointly w i t h the others, as the case may b e . Such n e w
trustee shall h a v e a n d exercise the same p o w e r s ,
rights, a n d duties as if he h a d been originally
appointed, a n d the trust estate shall vest in him in
like m a n n e r as it h a d vested or w o u l d have vested,
in the trustee in w h o s e place he is substituted; and
the court may o r d e r such conveyance to be made by
the f o r m e r trustee or his representatives, or by the
o t h e r r e m a i n i n g trustee, as may be necessary or
p r o p e r to vest the trust estate in the trustee, either
alone or jointly w i t h the others.
Sec. 4. Proceedings where trustee appointed abroad.

— W h e n l a n d in the Philippines is held in trust for
persons resident here by a trustee w h o derives his
authority from without the Philippines, such trustee
shall, on petition filed in the Court of First Instance
of the province w h e r e the land is situated, and after
due notice to all persons interested, be o r d e r e d to
apply to the court for appointment as trustee; and
u p o n his neglect or refusal to comply w i t h such
order, the court shall declare such trust vacant, and
149
shall appoint a new trustee in w h o m the trust estate

shall vest in like manner as if he had been originally
appointed by such court.
Sec. 5. Trustee must file bond. — B e f o r e entering

on the duties of his trust, a trustee shall file with
the clerk of the court having jurisdiction of the trust
a bond in the amount fixed by the j u d g e of said court,
payable to the Government of the P h i l i p p i n e s and
sufficient and available for the protection of any
party in interest, and a trustee w h o neglects to file
such b o n d shall be considered to have declined or
resigned the trust; b u t the court may until f u r t h e r
o r d e r exempt a trustee u n d e r a will f r o m giving a
b o n d w h e n the testator has directed or r e q u e s t e d
such exemption, a n d may so e x e m p t a n y trustee
when all persons beneficially interested in the trust,
b e i n g o f full a g e , r e q u e s t the e x e m p t i o n . S u c h
exemption may be cancelled by the court at any time,
and the trustee r e q u i r e d to f o r t h w i t h file a b o n d .
Sec. 6. Conditions included in bond. — T h e

following conditions shall be d e e m e d to be a p a r t of
the b o n d w h e t h e r w r i t t e n therein or not:
( a ) T h a t the trustee w i l l m a k e a n d r e t u r n to the

court, at such time as it may order, a true i n v e n t o r y
of all the r e a l and p e r s o n a l estate b e l o n g i n g to him
as trustee, w h i c h at the time of the m a k i n g of such
i n v e n t o r y s h a l l h a v e c o m e t o his p o s s e s s i o n o r
knowledge;
( b ) That he w i l l m a n a g e a n d dispose of all such

estate, and faithfully d i s c h a r g e his trust in r e l a t i o n
thereto, according to l a w a n d the w i l l of the testator
or the provisions of the instrument or o r d e r u n d e r
which he is appointed;
150
RULE 98 TRUSTEES SECS. 7-8
( c ) T h a t he will r e n d e r u p o n oath at least once

a y e a r until his trust is fulfilled, unless he is excused
t h e r e f r o m in any y e a r by the court, a true account
of the p r o p e r t y in his h a n d s and of the management
a n d disposition thereof, a n d w i l l r e n d e r such other
accounts as the court may o r d e r ;
( d ) T h a t at the e x p i r a t i o n of his trust he will

settle his accounts in court a n d p a y over a n d deliver
all the estate r e m a i n i n g in his hands, or due from
him on such settlement, to the p e r s o n or persons
entitled thereto.
B u t w h e n the trustee is appointed as a successor

to a p r i o r trustee, the court may dispense w i t h the
making and r e t u r n of an inventory, if one has already
b e e n filed, a n d in such case, the condition of the
b o n d shall be deemed to be altered accordingly.
Sec. 7. Appraisal. Compensation of trustee. — W h e n

an inventory is r e q u i r e d to be returned by a trustee,
the estate a n d effects b e l o n g i n g to the trust shall
be a p p r a i s e d and the court may o r d e r one or more
i n h e r i t a n c e tax a p p r a i s e r s to assist in the
appraisement. The compensation of the trustee shall
be fixed by the court, if it be not determined in the
instrument creating the trust.
Sec. 8. Removal or resignation of trustee. — The

p r o p e r C o u r t of First Instance may, upon petition
of the parties beneficially interested and after due
notice to the trustee and hearing, remove a trustee
if such removal appears essential in the interests of
the petitioners. The court may also, after due notice
to all persons interested, remove a trustee w h o is
insane or otherwise incapable of discharging his
trust or evidently unsuitable therefor. A trustee,
whether appointed by the court or under a written
151
instrument, may resign his trust if it appears to the

court p r o p e r to allow such resignation.
Sec. 9. Proceedings for sale or encumbrance of trust

estate. — W h e n the sale or encumbrance of any real
or p e r s o n a l estate h e l d in trust is n e c e s s a r y or
expedient, the court having jurisdiction of the trust
may, on petition and after due notice a n d hearing,
order such sale or encumbrance to be m a d e , a n d the
reinvestment and application of the proceeds
thereof in such manner as will best effect the objects
of the trust. T h e petition, notice, h e a r i n g , o r d e r of
sale o r e n c u m b r a n c e , a n d r e c o r d o f p r o c e e d i n g s
shall conform as nearly as may be to the provisions
concerning the sale or e n c u m b r a n c e by g u a r d i a n s
of the p r o p e r t y of minors or other w a r d s .
NOTES
1. An executor will not be exempted from posting a

bond even if such exemption is p r o v i d e d in the w i l l
(Sec. 2, Rule 81), but a trustee appointed in the will may
be exempted from such bond when so directed in the will
(Sec. 5 of this Rule).
2. Accounts of trustees must be under oath (Sec. 6[c])

and shall be filed annually. The latter requirement also
applies to guardians although the same need not be under
oath (Sec. l[c], Rule 94; Sec. 7, Rule 96; Sees. 14[c] and
17[g], AM. No. 03-02-05-SC), while those of administrators
or executors (Sec. l[c], Rule 81) are not required to be
under oath and, except for the initial and final submission
of their accounts, they shall be filed only at such times as
may be required by the court.
3. It is the duty of a trustee to deliver the trust

property to the cestui que trust free from liens and
encumbrances (De Leon vs. Molo-Peckson, L-17809,
Dec. 29, 1962).
152
4. A D O P T I O N A N D CUSTODY OF MINORS
R U L E 99
ADOPTION AND CUSTODY OF MINORS
Section 1. Venue. — A p e r s o n d e s i r i n g to adopt

a n o t h e r or h a v e the custody of a m i n o r shall present
his petition to the C o u r t of First Instance of the
p r o v i n c e , or the municipal or justice of the peace
court of the city or municipality in w h i c h he resides.
In the City of M a n i l a , the proceedings shall be

instituted in the J u v e n i l e a n d Domestic Relations
Court.
Sec. 2. Contents of petition. — T h e petition for

adoption shall contain the same allegations required
in a petition for g u a r d i a n s h i p , to wit:
( b ) T h e qualifications of the adopter;
( c ) T h a t the a d o p t e r is not disqualified by law;
( d ) T h e n a m e , age, a n d residence of the person
to be adopted a n d of his relatives or of the persons
w h o h a v e him u n d e r their care;
( e ) T h e p r o b a b l e v a l u e a n d c h a r a c t e r o f the
estate of the p e r s o n to be adopted.
NOTES
1. The provisions of Rule 99 on adoption and Rule 100

have been expressly repealed by the Rule on Adoption
approved by the Supreme Court in A . M . No. 02-6-02-SC
on July 31, 2002, the complete text of which is reproduced
in this work as Appendix DD thereof.
153
The aforestated Rules 99 and 100 as then constituting

parts of the 1964 Rules of Court, together with some
comments and decisions t h e r e o n , are n o n e t h e l e s s
temporarily retained in this work for referential purposes
or insofar as some extant sections of Rule 99 may still
apply.
2. One to whom a three-day old child was given by its
mother, who does not wish to be identified, is considered a
guardian of the child and can give valid consent to its
adoption, as said child may be considered an abandoned
child (Duncan, et al. vs. CFI of Rizal, L-30576, Feb. 10,
1976).
3. T h e name of the person to be adopted is that

appearing in the civil registry and the court does not
acquire jurisdiction if a different name is carried in the
notice of publication (Cruz vs. Republic, L-20927, July 26,
1966).
Sec. 3. Consent to adoption. — T h e r e shall be filed

with the petition a w r i t t e n consent to the adoption
signed by the child, if fourteen years of a g e or over
and not incompetent, a n d by the child's spouse, if
any, a n d by each of its k n o w n l i v i n g p a r e n t s w h o is
not insane or hopelessly i n t e m p e r a t e or h a s not
abandoned such child, or if there are no such parents
by the g e n e r a l g u a r d i a n or g u a r d i a n ad litem of the
child, or if the child is in the custody of an o r p h a n
asylum, children's home or b e n e v o l e n t society or
person, by the p r o p e r officer or officers of such
asylum, home, or society, or by such p e r s o n ; b u t if
the child is illegitimate a n d has not b e e n recognized,
the consent of its father to the a d o p t i o n shall not
be required.
If the p e r s o n to be a d o p t e d is of a g e , only his or

her consent a n d that of the spouse, if any, shall be
required.
154
RULE 99 ADOPTION AND CUSTODY OF MINORS SECS. 4-5
Sec. 4. Order for hearing. — If the petition and

consent filed a r e sufficient in f o r m a n d substance,
the court by an o r d e r reciting the p u r p o s e of the
petition, shall fix a date a n d place f o r the h e a r i n g
thereof, w h i c h date shall not be more than six (6)
months after the entry of the order, a n d shall direct
that a copy of the o r d e r be p u b l i s h e d b e f o r e the
h e a r i n g at least once a w e e k for three (3) successive
w e e k s i n some n e w s p a p e r o f g e n e r a l c i r c u l a t i o n
p u b l i s h e d in the province, as the court shall deem
best.

tory p r o o f in o p e n court on the date fixed in the
o r d e r that such o r d e r has been published as
directed, that the allegations of the petition are true,
a n d that it is a p r o p e r case for adoption a n d the
petitioner or petitioners a r e able to b r i n g up a n d
educate the child properly, the court shall adjudge
that t h e n c e f o r t h the c h i l d is f r e e f r o m all l e g a l
obligations of obedience and maintenance with
respect to its n a t u r a l parents, except the mother
w h e n the child is adopted by h e r h u s b a n d , and is, to
all l e g a l intents a n d p u r p o s e s , the c h i l d of the
petitioner or petitioners, a n d that its surname is
changed to that of the petitioner or petitioners. The
adopted person or child shall thereupon become the
legal heir of his parents by adoption a n d shall also
r e m a i n the legal heir of his natural parents. In case
of death of the adopted person or child, his parents
a n d relatives by nature, and not by adoption, shall
be his legal heirs.
NOTES
1. The foregoing provisions were modified by the Child

and Youth Welfare Code (P.D. 603), then by Executive Order
N o . 91, and, thereafter, by the Family Code (E.O. 209).
155
Sec. 6. Proceedings as to child whose parents are

separated. Appeal. — W h e n h u s b a n d a n d w i f e a r e
divorced or living separately and apart from each
other, and the question as to the care, custody, and
control of a child or children of their m a r r i a g e is
brought before a Court of First Instance by petition
or as an incident to any other proceeding, the court,
upon hearing the testimony as may be pertinent,
shall a w a r d the care, custody, and control of each
such child as will be for its best interest, permitting
the child to choose w h i c h p a r e n t it p r e f e r s to live
with if it be over ten years of age, unless the p a r e n t
so chosen be unfit to take c h a r g e of the child by
reason of moral depravity, habitual drunkenness,
incapacity, or poverty. If, u p o n such h e a r i n g , it
appears that both parents a r e i m p r o p e r persons to
have the care, custody, a n d control of the child, the
court may either designate the p a t e r n a l or m a t e r n a l
g r a n d p a r e n t of the child, or his oldest b r o t h e r or
sister, or some r e p u t a b l e a n d discreet p e r s o n to take
charge of such child, or commit it to any suitable
asylum, children's home, or benevolent society. T h e
court may in conformity w i t h the provisions of the
Civil C o d e o r d e r either or b o t h p a r e n t s to s u p p o r t
or help support said child, irrespective of w h o m a y
be its custodian, a n d may m a k e any o r d e r that is
just a n d r e a s o n a b l e permitting the p a r e n t w h o is
deprived of its c a r e a n d custody to visit the child or
have t e m p o r a r y custody thereof. E i t h e r p a r e n t may
appeal f r o m an o r d e r m a d e in accordance w i t h the
provisions o f this section. N o c h i l d u n d e r seven
years of age shall be s e p a r a t e d f r o m its mother,
unless the court finds there a r e compelling reasons
therefor.
156
RULE 99 ADOPTION AND CUSTODY OF MINORS SEC. 6
NOTES
1. T h i s was the authorized proceeding where the

parents of the child are separated either by virtue of a
decree of legal separation or are living separately de facto.
T h e petition may be filed by any person, or the issue may
be resolved as an incident in another proceeding, as in
legal separation wherein the decree shall provide for
custody of minor children (Art. 106[c], Civil Code). See,
however, Arts. 49, 62 and 63 of the Family Code which
changed the foregoing provision. Thus, in an action for
separation of properties wherein support for the child is
involved, the issue of the custody of the child may also be
resolved.
T h e present procedure is now governed by the Rule
on Custody of M i n o r s and W r i t of Habeas Corpus in
Relation to Custody of Minors approved by the Supreme
Court in A . M . N o . 03-04-04-SC on April 22, 2003 (Appendix
II). See also the notes under the following sections.
2. Decisions on the custody of children are always open

to adjustment as the circumstances may warrant, the
foremost consideration being the welfare of the child
(Unson III vs. Navarro, et al., G.R. No. 52242, Nov. 17,
1980).
3. If the child be below five years of age, the Child

and Youth Welfare Code (Sec. 17, P.D. 603) provided that
"(i)n case of separation of his parents, no child under five
years of age shall be separated from his mother, unless the
court finds compelling reasons to do so," repealing the
provisions of Art. 363 of the Civil Code on which the last
sentence of this section is based (see Chua Lim vs. Soa Pin
Lim, et al., L-41405, Oct. 22, 1975). If the child be five
years old or over, but not more than ten years of age, the
court shall determine in whose custody the child shall be
entrusted. If the child be ten years of age or over, it shall
be permitted to choose the parent it prefers to live with,
157
unless said parent is found by the court to be unfit. This

rule applied to parents and their recognized or adopted
children (Garcia vs. Pongan, 89 Phil. 797).
However, the Family Code repealed said Sec. 17 and
provides that in case of separation of parents, parental
authority shall be exercised by the parent designated by
the court. The court shall take into account all relevant
considerations, especially the choice of the child over seven
(7) years of age, unless the parent chosen is unfit. No child
under seven (7) years of age shall be separated from the
mother unless the court finds compelling reasons to order
otherwise (Art. 213).
Sec. 7. Proceedings as to vagrant or abused child. —

W h e n the parents of any m i n o r child a r e d e a d , or by
reason of long absence or legal or physical disability
have a b a n d o n e d it, or cannot s u p p o r t it t h r o u g h
vagrancy, negligence, or misconduct, or neglect or
r e f u s e t o s u p p o r t it, o r t r e a t i t w i t h e x c e s s i v e
harshness or give it c o r r u p t i n g o r d e r s , counsels, or
examples, or cause or a l l o w it to e n g a g e in b e g g i n g ,
or to commit offenses against the law, the p r o p e r
Court of First Instance, u p o n petition filed by some
r e p u t a b l e resident of the province setting f o r t h the
facts, may issue an o r d e r r e q u i r i n g such p a r e n t s to
show cause, or if the p a r e n t s a r e d e a d or c a n n o t be
found, r e q u i r i n g the fiscal of the p r o v i n c e to s h o w
cause, at a time a n d place fixed in the o r d e r , w h y
the child should not be taken f r o m its p a r e n t s , if
living; a n d if u p o n the h e a r i n g it a p p e a r s , that the
allegations of the petition a r e true, a n d that it is f o r
the best interest of the child, the court m a y m a k e
an o r d e r taking it f r o m its p a r e n t s , if living; a n d
committing it to any suitable o r p h a n asylum,
children's home, or benevolent society or p e r s o n to
be ultimately placed, by adoption or o t h e r w i s e , in a
158
RULE 99 ADOPTION AND CUSTODY OF MINORS SEC. 8
h o m e f o u n d f o r it by such asylum, children's home,

society, or p e r s o n .
NOTES
1. Voluntary or involuntary commitment of aban-

doned, neglected or disabled children is now regulated by
the Rule on Commitment of Children, approved by the
Resolution of the Supreme Court in A . M . N o . 02-1-19-SC
on February 28, 2002 and effective on April 15, 2002.
2. T h e case of children who have committed criminal

offenses is dealt with by the Rule on Juveniles in Conflict
with the Law which was likewise approved by the Supreme
Court in its Resolution of February 28, 2002 in A . M . N o .
02-1-18-SC and took effect on April 15, 2002. Since the
subject involves a minor's criminal acts, his criminal and
c i v i l l i a b i l i t i e s , and the p r o c e e d i n g s in connection
therewith, the subject has to be taken up in the author's
w o r k on criminal law, in relation to the other legal
provisions and jurisprudence on the matter which replaced
the former A r t . 80 of the Revised Penal Code.

j u d g m e n t s u n d e r this r u l e shall be served by the
c l e r k u p o n the civil r e g i s t r a r o f the city o r
municipality w h e r e i n the court issuing the same is
situated.
NOTES
1. The adoption shall be recorded in the local civil

register (Art. 408, Civil Code). Such registration is a
compulsory requirement. The registration of civil status
is not limited by law to local adoptions. Foreign adoptions
are registrable with the local civil registry and such an
act is not inimical to private international law (Ramirez-
Marcaida vs. Aglubat, L-24006, Nov. 25, 1967).
159
2. P.D. 603, dated December 10, 1974 expressly

repealed the provisions of Arts. 334 to 348 of the Civil Code
which constituted the main bases of the f o r e g o i n g
provisions of the 1964 Rules of Court on adoption.
However, Arts. 27, 28, 29, 32, 33 and 35 of ED. 603 were
subsequently amended by Executive Order N o . 91 on
December 17, 1986. Procedural and substantive changes
were thereafter made by Title V I I (Arts. 183 to 190) of the
Family Code (Executive Order No. 209, as amended by
Executive Order No. 227), effective August 3, 1988.
3. On June 7, 1995, R.A. 8043 established the rules

governing inter-country adoption of Filipino children
(Appendix BB).
4. R . A . 8552, known as the "Domestic Adoption Act

of 1998," was thereafter enacted on February 25,1998 and
its incorporation in the rules on special proceedings was
duly considered by the Supreme Court. See Appendix CC
for the complete text of this law.
5. On July 31, 2002, the Supreme Court promulgated

the Rule on Adoption, for both domestic and inter-country
adoptions, in A . M . N o . 02-6-02-SC (Appendix DD) and
which provides the governing rules at present.
160
R U L E 100
RESCISSION AND REVOCATION OF ADOPTION
NOTES
1. As earlier stated, this rule was repealed and its

provisions have been replaced by the Rule on Adoption
approved in A . M . N o . 02-6-02-SC by the Supreme Court,
effective August 22, 2002 (see Appendix DD).
2. The pertinent provisions of A . M . N o . 02-6-02-SC

provide:
"SEC. 19. Rescission of Adoption of the Adoptee.

- The petition shall be verified and filed by the adoptee
who is over eighteen (18) years of age, or with the
assistance of the Department, if he is a minor, or if he
is over eighteen (18) years of age but is incapacitated,
by his guardian or counsel.
The adoption may be rescinded based on any of
the following grounds committed by the adopted:
(1) repeated physical and verbal maltreatment
by the adopter despite having undergone counseling;
(2) attempt on the life of the adoptee;
(3) sexual assault or violence; or
(4) abandonment or failure to comply with
parental obligations.
Adoption, being in the best interest of the child,
shall not be subject to rescission by the adopter.
However, the adopter may disinherit the adoptee for
causes provided in Article 919 of the Civil Code.
SEC. 20. Venue. - The petition shall be filed
with the Family Court of the city or province where
the adoptee resides.
161
prescriptive period
SEC. 21. Time within which to file petition. - The
adoptee, if incapacitated, must file the petition for
rescission or revocation of adoption within five (5)
years after he reaches the age of majority, or if he was
incompetent at the time of the adoption, within five
(5) years after recovery from such incompetency.
SEC. 22. Order to Answer. - The court shall issue
an order requiring the adverse party to answer the
petition within fifteen (15) days from receipt of a copy
thereof. The order and copy of the petition shall be
served on the adverse party in such manner as the
court may direct.
SEC. 23. Judgment. - If the court finds that the
allegations of the petition are true, it shall render
judgment ordering the rescission of adoption, with or
without costs, as justice requires.
The court shall order that the parental authority
of the biological parent of the adoptee, if known, or
the legal custody of the Department shall be restored
if the adoptee is a minor or incapacitated and declare
that the reciprocal rights and obligations of the
adopter and the adoptee to each other shall be
extinguished.
T h e court shall f u r t h e r d e c l a r e t h a t t h e
successional rights shall revert to its status prior to
adoption, as of date of judgment of judicial rescission.
Vested rights prior to judicial rescission shall be
respected.
It shall also order the adoptee to use the name
stated in his original birth or foundling certificate.
The Court shall further order the Civil Register
where the adoption decree was registered to cancel the
new birth certificate of the adoptee and reinstate his
original birth or foundling certificate.
162
RULE 100 RESCISSION AND REVOCATION SECS. 1-5
OF ADOPTION
SEC. 24. Service of Judgment. - A certified true

copy of the judgment together with a certificate of
finality issued by the Branch Clerk of the court which
rendered the decision in accordance with the preceding
Section shall be served by the petitioner upon the Civil
Registrar concerned within thirty (30) days from
receipt of the certificate of finality. The Civil Registrar
shall forthwith enter the rescission decree in the
register and submit proof of compliance to the court
issuing the decree and the Clerk of Court within thirty
(30) days from receipt of the decree.
The Clerk of Court shall enter the compliance in
accordance with Section 17 hereof."
163
5. P R O C E E D I N G S F O R
HOSPITALIZATION OF INSANE PERSONS
R U L E 101
PROCEEDINGS FOR HOSPITALIZATION

OF INSANE PERSONS
Section 1. Venue. Petition for commitment. — A

petition for the commitment of a person to a hospital
or other place for the insane may be filed w i t h the
Court of First Instance of the province w h e r e the
person alleged to be insane is found. T h e petition
shall be filed by the D i r e c t o r of H e a l t h in all cases
w h e r e , in his opinion, such commitment is f o r the
public welfare, or for the w e l f a r e of said person w h o ,
in his judgment, is insane, a n d such p e r s o n or the
one having c h a r g e of him is opposed to his b e i n g
taken to a hospital or other place for the insane.
NOTE
1. T h e petition for the hospitalization of insane

persons may be filed by the person in custody or having
charge of said insane person. If he refuses to do so and
where it is required for the welfare of the insane person or
of the public, the petition shall be filed by the Director of
Health or the present authorized officer.
Sec. 2. Order of hearing. — If the petition filed is

sufficient in f o r m a n d substance, the court, by an
o r d e r reciting the p u r p o s e of the petition, shall fix
a date for the h e a r i n g thereof, a n d copy of such o r d e r
shall be served on the p e r s o n a l l e g e d to be insane,
a n d to the one h a v i n g c h a r g e of him, or on such of
his relatives residing in the p r o v i n c e or city as the
j u d g e may deem proper. T h e court shall f u r t h e r m o r e
164
RULE 101 PROCEEDINGS FOR HOSPITALIZATION SECS 3 5
OF INSANE PERSONS
o r d e r the s h e r i f f t o p r o d u c e , the a l l e g e d i n s a n e
p e r s o n , if possible, on the date of the h e a r i n g .

tory proof, in o p e n court on the date fixed in the
order, that the commitment a p p l i e d f o r is for the
p u b l i c w e l f a r e o r f o r the w e l f a r e o f the i n s a n e
p e r s o n , a n d that his relatives a r e u n a b l e f o r any
r e a s o n to take p r o p e r custody a n d c a r e of him, the
court shall o r d e r his commitment to such hospital
or other place for the insane as may be recommended
b y the D i r e c t o r o f H e a l t h . T h e court shall make
p r o p e r j s r o v i s i o n s ^ f o r the custody of p r o p e r t y or
money b e l o n g i n g to the insane until a g u a r d i a n be
p r o p e r l y appointed.
Sec. 4. Discharge of insane. — W h e n in t h e

opinion of the Director of Health, the person ordered
to be committed to a hospital or other place for the
insane is t e m p o r a r i l y or permanently cured, or may
be r e l e a s e d without d a n g e r he may file the p r o p e r
p e t i t i o n w i t h the C o u r t o f F i r s t I n s t a n c e w h i c h
o r d e r e d the commitment.
Sec. 5. Assistance of fiscal in the proceeding. — It

shall be the duty of the provincial fiscal or in the
City of M a n i l a the fiscal of the city, to p r e p a r e the
petition for the Director of Health and represent him
i n c o u r t i n a l l p r o c e e d i n g s a r i s i n g u n d e r the
provisions of this rule.
NOTES
1. Where the insane person was judicially committed

to the hospital or asylum, the Director of Health cannot
order his release without the approval of the Court of First
Instance which ordered the commitment. Also, the said
165
court cannot order his release without the recommen-

dation of the Director of Health (Chin Ah Foo, et al. vs.
Conception, etc., et al., 54 Phil. 775).
2. Aside from the procedure outlined in this Rule, an

imbecile or insane person who has committed a felony can
also be directly ordered committed by the trial court and
he cannot be released without the permission of said court
(Art. 12[1], Revised Penal Code).
166
6. H A B E A S C O R P U S
RULE 102
HABEAS CORPUS
Section 1. To what habeas corpus extends. — Except

as o t h e r w i s e expressly p r o v i d e d by law, the w r i t of
habeas corpus shall e x t e n d to all cases of illegal
confinement or detention by w h i c h any p e r s o n is
dej»rived^>f_his_Jiherty, or by w h i c h the r i g h t f u l
custody of any p e r s o n is w i t h h e l d f r o m the~persoh
entitled thereto.
NOTES
1. The writ of habeas corpus is a writ directed to the

person detaining another and commanding him to produce
the body of the prisoner at a certain time and place, with
the day and the cause of his caption and detention, to do,
submit to, and receive whatsoever the court or judge
awarding the writ shall consider in that behalf (Bouvier's
Law Dictionary).
2. Habeas corpus under this Rule is the remedy in all

cases of illegal confinement or detention or where the
rightful custody of a person is withheld from one entitled
to such custody. Actual and effective, and not merely
nominal or moral, restraint is required (Zagala vs. Ilustre,
48 Phil. 282; Gonzales vs. Viola, et al, 61 Phil. 824).
However, actual physical restraint is not always required;
any restraint which will prejudice freedom of action is
sufficient (Moncupa vs. Enrile, et al., G.R. No. 63345,
Jan. 30, 1986).
Consequently, the writ may also be availed of where,
as a consequence of a judicial proceeding, (a) there has been
a deprivation of a constitutional right resulting in the
restraint of a person, (b) the court had no jurisdiction to
167
impose the sentence, or (c) an excessive penalty has been

imposed, such sentence being void as to such excess (Cruz
vs. Director of Prisons, 17 Phil. 269; Harden vs. Director
of Prisons, 81 Phil. 741). W h e r e a deprivation of a
constitutional right is established, the court that rendered
the judgment is deemed ousted of jurisdiction and habeas
corpus is the remedy to assail the legality of the detention
(Olaguer, et al. vs. Military Commission No. 34, et al.,
G.R. Nos. 54558 & 59882, May 22, 1987, and cases
therein cited).
3. It is necessary, however, that in order that the writ
will lie, the judgment of the court which resulted in said
illegal deprivation of liberty is no longer appealable, in
which case the writ is in the nature of a collateral attack
against a final but void judgment (Chavez vs. CA, et al.,
L-29169, Aug. 19, 1968; Santiago vs. Alikpala, L-25133,
Sept. 28, 1968).
If the judgment is still appealable, then the remedy of
the person detained is to duly appeal therefrom as habeas
corpus is not a substitute for appeal (see Paguntalan vs.
Director of Prisons, 57 Phil. 141).
Where the judgment has become final and executory,
the same cannot be substantially amended in order to give
retroactive effect to a penal provision favorable to the
accused pursuant to A r t . 22 of the Revised Penal Code.
The only remedy therefor is the writ of habeas corpus
(Directo vs. Director of Prisons, 56 Phil. 692; People vs.
Simon, G.R. No. 93028, July 29, 1994).
4. The alleged circumstance that the information is

invalid because the preliminary investigation was invalid
and that the offense has already prescribed are not grounds
for the issuance of a writ of habeas corpus. If petitioner
claims that no preliminary investigation had been validly
conducted, his remedy is to ask the court which issued the
warrant of commitment for an investigation or reinves-
tigation of the case. Habeas corpus would not lie where
168
RULE 102 HABEAS CORPUS SEC. 2
the person alleged to be restrained of his liberty is in the

custody of an officer under process issued by a court which
has jurisdiction to do so. The defense of prescription of the
offense charged in the information should be pleaded in a
motion to quash before the arraignment of the accused in
the criminal action, otherwise it will be deemed waived.
Whether the crime may still be prosecuted or penalized
should be determined in the criminal case and not in a
s p e c i a l p r o c e e d i n g for habeas corpus (Paredes vs.
Sandiganbayan, G.R, No. 89989, Jxm. 28, 1991). "
5. Generally, the writ shall not issue if the restraint is

voluntary (Kelly, etc. vs. Director of Prisons, 44 Phil. 623),
but it will lie to enable the parents to recover custody of
a minor daughter although she is in the custody of a third
person on her own volition (Salvqha, et al. vs. Gaela, etc.,
55 Phil. 680), or to enable a brother exercising substitute
parental authority to regain custody of a minor younger
sister l i v i n g voluntarily in adulterous relations with
another (Macazo vs. Nunez, et al., 105 Phil. 55). However,
the writ is not available where the daughter is of legal age
and living with a married man who was not restraining
her of her liberty (Real vs. Trouthman, L-23074, May 24,
1967).
concurrent except first level courts
Sec. 2. Who may grant the writ. — T h e w r i t of
habeas corpus m a y be g r a n t e d by the S u p r e m e
C o u r t , or any m e m b e r thereof, on any day and at
any time, or by the C o u r t of A p p e a l s or any member
thereof in the instances authorized by law, and if so
g r a n t e d , it shall be e n f o r c e a b l e a n y w h e r e in the
Philippines, and may b e made: returnable before the
court or any member thereof, or before a Court of
First Instance, or any j u d g e thereof for hearing and
decision on the merits. It may also be granted by a
Court of First Instance or a j u d g e thereof on any
day and at any time, and returnable before himself
enforceable only within his judicial district.
169
NOTES
1. This provision is another exception to the rule that

processes of the then Courts of F i r s t Instance are
enforceable throughout the Philippines (Sec. 3, Rule 135).
Since the writ was enforceable only within the judicial
district, the venue of petitions in Courts of First Instance
for the writ was fixed thereby and the petition should be
filed in the Court of First Instance of the district where
it is sought to be enforced (Rafael, Sr., et al. vs. Puno, etc.,
et al., L-44861, Mar. 29, 1977). If the petition for habeas
corpus was filed with the proper Court of First Instance, it
may be heard in any place in the judicial district (Sec. 8,
Rule 135). Note, however, the change under Sec. 21, B.P.
Big. 129 which makes the writ enforceable within the
judicial region, hence the petition may now be filed in the
proper Regional Trial Court in the region.
2. Regarding the special jurisdiction of metropolitan,

municipal and municipal circuit trial courts to hear and
decide petitions for writs of habeas corpus, see Sec. 35,
B.P. Big. 129. if all the rtc judges are absent, the first level courts can.
3. A writ of habeas corpus issued by the Supreme Court

may be made returnable before a Court of First Instance.
T h e latter court does not t h e r e b y b e c o m e m e r e l y a
recommendatory body, whose findings and conclusions are
devoid of effect unless the Supreme Court acts on its
recommendation, but such l o w e r court acquires the
authority and the duty to inquire into the facts and the
law pertinent to the legality or illegality of the petitioner's
detention and to order his discharge from confinement
should it find that he is u n l a w f u l l y i m p r i s o n e d or
restrained. Such court takes the case for determination
on the merits and its findings, if not appealed on time, can
become final as in ordinary cases. The appeal from the
decision therein of the Court of First Instance shall be
taken to the Court of Appeals when it involves factual
170
RULE 102 HABEAS CORPUS SEC. 3
questions or directly to the Supreme Court on pure

questions of law (Medina vs. Yan, et al., L-30978, Sept. 30,
1974; cf. Saulo vs. Cruz, etc., 109 Phil. 378).
Sec. 3. Requisites of application therefor. —

A p p l i c a t i o n for the w r i t shall be by petition signed
a n d verified either by the p a r t y for w h o s e relief it
is intended, or by some p e r s o n on his behalf, a n d
shall set forth:
(a) T h a t the p e r s o n i n w h o s e b e h a l f the
application is m a d e is imprisoned or restrained of
his liberty;
( b ) T h e officer o r n a m e o f the person b y w h o m
he is so i m p r i s o n e d or restrained; or, if b o t h are
u n k n o w n or uncertain, such officer or person may
be d e s c r i b e d by an assumed appellation, a n d the
p e r s o n w h o is served w i t h the w r i t shall be deemed
the p e r s o n intended;
(c) The place w h e r e he is so imprisoned or
restrained, if k n o w n ;
( d ) A copy of the commitment or cause of
d e t e n t i o n of such p e r s o n , if it c a n be p r o c u r e d
without i m p a i r i n g the efficiency of the remedy; or,
if the imprisonment or restraint is without any legal
authority, such fact shall appear.
NOTE
1. The petition for the writ is required to be verified

but the defect in form will not be fatal. In fact, the
Supreme Court has held that it is the duty of a court to
issue the writ if there is evidence that a person is unjustly
restrained of his liberty within its jurisdiction £jffiJL_if_
there j s no application, t^hjerejoj- (Villavicencio vs. Lukban,
3V~Phil. 778). It is necessary, however, that the person in
whose behalf the petition is filed is under actual and
171
effective restraint or deprivation of liberty (Gonzales vs.

Viola, et al, 61 Phil. 824).
Sec. 4. When writ not allowed or discharge

authorized. — If it a p p e a r s that the p e r s o n to be
restrained of his liberty is in the custody of an officer
under process issued by a court or judge; or by virtue
of a judgment or order of a court of record, a n d that
the court or j u d g e h a d j u r i s d i c t i o n to issue the
process, render the judgment, or make the order, the
w r i t shall not be a l l o w e d ; or if the j u r i s d i c t i o n
appears after the w r i t is allowed, the p e r s o n shall
not be discharged by reason of any informality or
defect in the process, j u d g m e n t or order. N o r shall
a n y t h i n g i n this r u l e b e h e l d t o a u t h o r i z e the
discharge of a person c h a r g e d w i t h or convicted of
an offense in the Philippines, or of a person suffering
imprisonment u n d e r l a w f u l j u d g m e n t .
NOTE
1. While this section refers to restraint of a person

under process of a court of record, such process may also
be issued by a governmental agency authorized to order
his confinement, as in the case of the Deportation Board,
and the courts have no authority to release the party thus
committed even in habeas corpus proceedings (Republic,
etc. vs. Cloribel, etc., et al, L-9700, Feb. 28, 1962; see also
Tung Chin Hui vs. Rodriguez, etc., et al, G.R. No. 141938,
April 2, 2001).
Sec. 5. When the writ must be granted and issued.

— A court or j u d g e authorized to grant the w r i t must,
w h e n a petition therefor is presented a n d it a p p e a r s
that the w r i t o u g h t to issue, g r a n t the s a m e
forthwith, a n d immediately t h e r e u p o n the clerk of
the court shall issue the w r i t u n d e r the seal of the
172
RULE 102 HABEAS CORPUS SECS. 6, 7
court; or in case of emergency, the j u d g e may issue

the w r i t u n d e r his o w n h a n d , and may depute any
officer or p e r s o n to serve it.
Sec. 6. To whom writ directed, and what to require.

— In case of imprisonment or restraint by an officer,
the w r i t shall be directed to him, and shall command
h i m to h a v e the b o d y of the p e r s o n r e s t r a i n e d of his
l i b e r t y b e f o r e the court or j u d g e designated in the
w r i t at the time a n d place therein specified. In case
of i m p r i s o n m e n t or r e s t r a i n t by a p e r s o n not an
officer, the w r i t shall be directed to an officer, and
shall c o m m a n d him to take a n d have the b o d y of
the p e r s o n r e s t r a i n e d of his liberty b e f o r e the court
or j u d g e designated in the w r i t at the time and place
t h e r e i n specified, a n d t o s u m m o n the p e r s o n b y
w h o m he is r e s t r a i n e d then a n d there to a p p e a r
b e f o r e said court or j u d g e to s h o w the cause of the
imprisonment or restraint.
NOTE
1. Where the person is detained under governmental

authority and the illegality of his detention is not patent
from the petition for the writ, the court may issue a citation
to the government officer having the person in his custody
to show cause why the w r i t of habeas corpus should
not issue. This is known as ajgwliminary citation, as
distinguished from the peremptory writ which is issued
when the cause of the detention appears to be patently
illegal, and the non-compliance wherewith is punishable
(see Lee Yick Hon us. Insular Collector of Customs, 41 Phil.
548).
Sec. 7. How prisoner designated and writ served. —

T h e person to be produced should be designated in
the w r i t by h i s j i a m e , if known, but if his name is
173
not k n o w n h e m a y b e o t h e r w i s e d e s c r i b e d o r
identified. The writ may be served in any province
by the sheriff or other p r o p e r officer, or by a person
deputed by the court or j u d g e . Service of the w r i t
shall be made by leaving the original with the person
to whom it is directed and p r e s e r v i n g a copy on
which to make r e t u r n of service. If that p e r s o n
cannot be f o u n d , or has not the p r i s o n e r in his
custody, then the service shall be m a d e on any other
person having or exercising such custody.
Sec. 8. How writ executed and returned. — T h e

officer to w h o m the w r i t is directed shall convey the
person so imprisoned or restrained, a n d n a m e d in
the writ, b e f o r e the j u d g e a l l o w i n g the w r i t , or in
case of his absence or disability, b e f o r e some other
j u d g e of the same court, on the d a y specified in the
writ, unless from sickness or infirmity of the p e r s o n
directed to be p r o d u c e d , such p e r s o n cannot,
w i t h o u t d a n g e r , b e b r o u g h t b e f o r e the c o u r t o r
j u d g e ; and the officer shall m a k e d u e r e t u r n of the
w r i t , together w i t h the d a y a n d the cause of the
caption and restraint of such p e r s o n a c c o r d i n g to
the command thereof.
Sec. 9. Defect of form. — No w r i t of habeas

corpus can be d i s o b e y e d f o r defect of f o r m , if it
sufficiently a p p e a r s t h e r e f r o m in w h o s e custody or
u n d e r w h o s e r e s t r a i n t the p a r t y i m p r i s o n e d o r
r e s t r a i n e d i s h e l d a n d the c o u r t o r j u d g e b e f o r e
w h o m he is to be b r o u g h t .
made by the officer who imprisoned the subject matter of the writ of habeas corpus.
Sec. 10. Contents of return. — W h e n the p e r s o n to
be produced is imprisoned or restrained by an
officer, the person w h o makes the r e t u r n shall state
therein, a n d i n o t h e r cases the p e r s o n i n w h o s e
custody the p r i s o n e r is f o u n d shall state, in w r i t i n g ,
174
RULE 102 HABEAS CORPUS SECS. 11-12
t o the c o u r t o r j u d g e b e f o r e w h o m the w r i t i s
r e t u r n a b l e , plainly and unequivocably:
( a ) W h e t h e r he has or has not the party in his
custody or p o w e r , or u n d e r restraint;
( b ) If he has the p a r t y in his custody or power,
or u n d e r restraint, the authority and the true and
w h o l e cause thereof, set forth at l a r g e , with a copy
of the w r i t , order, execution, or other process, if any,
u p o n w h i c h the p a r t y is held;
( c ) If the p a r t y is in his custody or p o w e r or is
r e s t r a i n e d by him, a n d is not p r o d u c e d , particularly
the n a t u r e a n d gravity of the sickness or infirmity
of such p a r t y by r e a s o n of w h i c h he cannot, without
danger, he b r o u g h t b e f o r e the court or j u d g e ;
( d ) I f h e has h a d the p a r t y i n his custody o r
p o w e r or u n d e r restraint, a n d has t r a n s f e r r e d such
c u s t o d y or r e s t r a i n t to another, p a r t i c u l a r l y to
w h o m , at w h a t time, for w h a t cause, and by what
authority such transfer w a s made.
Sec. 11. Return to be signed and sworn to. — The

r e t u r n or statement shall be signed by the person
w h o makes it; a n d shall also be s w o r n to by him if
the p r i s o n e r is not produced, and in all other cases
unless the r e t u r n is made and signed by a sworn
public officer in his official capacity.
take precedence, immediately hear the case after receipt of the return.
Sec. 12..Hearing on return. Adjournments. — When
the writ is returned before one judge, at a time when
the court is in session, he may forthwith adjourn
the case into the c o u r t , t h e r e to be h e a r d a n d
determined. The court or j u d g e before w h o m the
w r i t is r e t u r n e d or a d j o u r n e d must immediately
proceed to h e a r and examine the return, and such
other matters as are p r o p e r l y submitted for
c o n s i d e r a t i o n , unless f o r good cause shown the
175
hearing is adjourned, in which event the court or

judge shall make such order for the safekeeping of
the person imprisoned or restrained as the nature
of the case requires. If the person imprisoned or
restrained is not produced because of his alleged
sickness or infirmity, the court or j u d g e must be
satisfied that it is so grave that such person cannot
be produced without danger, before p r o c e e d i n g to
hear and dispose of the matter. On the h e a r i n g the
court or j u d g e shall d i s r e g a r d matters of f o r m a n d
technicalities in respect to any w a r r a n t or o r d e r of
commitment of a c o u r t or officer a u t h o r i z e d to
commit by law.
Sec. 13. When the return evidence, and when only a

plea. — If it a p p e a r s that the p r i s o n e r is in custody
under a w a r r a n t of commitment in p u r s u a n c e of law,
the return shall be considered prima facie evidence
of the cause of restraint; b u t if he is r e s t r a i n e d of
his l i b e r t y b y any a l l e g e d p r i v a t e authority, the
return shall be considered only as a p l e a of the facts
therein set forth, and the party claiming the custody
must p r o v e such facts.
the detainee should prove to court that he had already
released the person subject of the writ of habeas corpus.

NOTE
order of release. signature on released book.
1. Sec. 13 lays down the rule on the buxdjen_of prppf
after the writ has been returned. If the detention is by
reason of public authority, the return is considered grima
facie evidence of the validity of the restraint and the
petitioner has the burden of proof to show that the restraint
is illegal. On the other hand, if the detention is by reason
of private authority, the return is considered only a plea of
the facts asserted therein and the person responsible for
the detention has the burden of proof to establish that the
detention is legal and justified.
176
RULE 102 HABEAS CORPUS SECS. 14, 15
Sec. 14. When person lawfully imprisoned recom-

mitted, and when let to bail. — If it a p p e a r s that the
p r i s o n e r w a s l a w f u l l y committed, a n d is plainly and
specifically c h a r g e d in the w a r r a n t of commitment
w i t h an offense p u n i s h a b l e by death, he shall not be
r e l e a s e d , d i s c h a r g e d , or b a i l e d . If he is l a w f u l l y
i m p r i s o n e d or r e s t r a i n e d on a c h a r g e of h a v i n g
committed an offense not so p u n i s h a b l e , he may be
recommitted to imprisonment or admitted to bail
in the discretion of the court or j u d g e . If he be
admitted to b a i l , he shall f o r t h w i t h file a b o n d in
such sum as the court or j u d g e deems reasonable,
considering the circumstances of the p r i s o n e r and
the n a t u r e of the offense c h a r g e d , conditioned for
his a p p e a r a n c e b e f o r e the court w h e r e the offense
is p r o p e r l y cognizable to abide its o r d e r or judgment;
a n d the court or j u d g e shall certify the proceedings,
t o g e t h e r w i t h the b o n d , f o r t h w i t h t o the p r o p e r
court. If such b o n d is not so filed, the prisoner shall
be recommitted to confinement.
NOTE
1. Where the prisoner has been detained and held

without bail although the offense is bailable, he may in a
habeas corpus proceeding be allowed to post bail to
ensure his appearance before the court where he was
charged with said offense. If the offense is not bailable, as
where it involves a capital offense and the evidence of
guilt is strong, he cannot obtain his provisional liberty on
bail by habeas corpus proceedings in another court.
appeal period on habeas corpus cases = 48 hours only. record of appeal is not required.
Sec. 15. When prisoner discharged if no appeal. —
W h e n the court or j u d g e has examined into the cause
of c a p t i o n a n d r e s t r a i n t of the prisoner, a n d is
satisfied that he is u n l a w f u l l y i m p r i s o n e d or
restrained, he shall forthwith order his discharge
177
REMEDIAL LAW COMPENDIUM SECS. 16-17
from confinement, but such discharge shall not be

effective until a copy of the o r d e r has been served
on the officer or person detaining the prisoner. If
the officer or person detaining the prisoner does not
desire to appeal, the prisoner shall be f o r t h w i t h
released.
NOTES
1. See, in this connection, the present provisions of

Sec. 3, Rule 41 with respect to the requisites and effects of
an appeal in habeas corpus proceedings.
2. See also Note 4 under Sec. 13 of the same Rule
explaining the changes in the appellate rules in habeas
corpus proceedings under the 1997 Revised Rules of Civil
Procedure, but which were later amended to restore the
original rules as they now appear in Sec. 3 of Rule 41.
Sec. 16. Penalty for refusing to issue writ, or for

disobeying the same. — A clerk of court w h o refuses to
issue the w r i t after a l l o w a n c e thereof a n d d e m a n d
therefor, or a person to w h o m a w r i t is directed, w h o
neglects or refuses to obey or m a k e r e t u r n of the
same according to the c o m m a n d thereof, or makes
false r e t u r n thereof, or w h o , u p o n d e m a n d m a d e by
or on b e h a l f of the prisoner, refuses to d e l i v e r to
the person demanding, within six (6) h o u r s after the
demand therefor, a true copy of the w a r r a n t or o r d e r
of commitment, shall forfeit to the p a r t y a g g r i e v e d
the sum of one thousand pesos, to be r e c o v e r e d in a
p r o p e r action, and may be p u n i s h e d by the court or
j u d g e as for contempt.
Sec. 17. Person discharged not to be again

imprisoned. — A p e r s o n w h o is set at liberty u p o n a
w r i t of habeas corpus shall not be a g a i n i m p r i s o n e d
for the same offense unless by the l a w f u l o r d e r or
178
process of a court h a v i n g jurisdiction of the cause

or offense; a n d a p e r s o n w h o knowingly, contrary to
the provisions of this r u l e , recommits or imprisons,
or causes to be committed, or imprisoned, for the
same offense, or p r e t e n d e d offense, any person so
set at liberty, or k n o w i n g l y aids or assists therein,
shall forfeit to the p a r t y a g g r i e v e d the sum of one
t h o u s a n d pesos, to be r e c o v e r e d in a p r o p e r action,
notwithstanding any colorable pretense or variation
in the w a r r a n t of commitment, a n d m a y also be
p u n i s h e d by the court or j u d g e g r a n t i n g the w r i t as
for contempt.
Sec. 18. When prisoner may be removed from one

custody to another. — A p e r s o n committed to prison,
or in custody of an officer, for any criminal matter,
shall not be r e m o v e d t h e r e f r o m into the custody of
a n o t h e r o f f i c e r u n l e s s b y l e g a l p r o c e s s , o r the
p r i s o n e r be delivered to an inferior officer to carry
to j a i l , or, by o r d e r of the p r o p e r court or j u d g e , be
r e m o v e d f r o m o n e p l a c e t o a n o t h e r w i t h i n the
P h i l i p p i n e s f o r trial, or in case of fire, epidemic,
insurrection, or other necessity or public calamity;
and a p e r s o n w h o , after such commitment, makes,
signs, or countersigns any o r d e r for such removal
contrary to this section, shall forfeit to the party
a g g r i e v e d the sum of one t h o u s a n d pesos, to be
recovered in a p r o p e r action.
Sec. 19. Record of writ, fees and costs. — T h e

proceedings upon a w r i t of habeas corpus shall be
recorded by the clerk of the court, and upon the final
disposition of such proceedings the court or j u d g e
s h a l l m a k e s u c h o r d e r as to costs as the case
requires. The fees of officers and witnesses shall be
included in the costs taxed, but no officer or person
shall have the right to demand payment in advance
179
of any fees to which he is entitled by virtue of the

proceedings. When a person confined u n d e r color
of proceedings in a criminal case is discharged, the
costs shall be taxed against the R e p u b l i c of the
Philippines, and paid out of its Treasury; w h e n a
person in custody by virtue or u n d e r color of
proceedings in a civil case is discharged, the costs
shall be taxed against him, or against the person w h o
signed the application for the writ, or both, as the
court shall direct.
NOTES
1. The release contemplated under a writ of habeas

corpus is one which is free from any involuntary restraint.
When the person so released continues to be denied one or
more of his constitutional freedoms, where there is present
a denial of due process, or where the restraints are not
merely involuntary but appear to be unnecessary, the
person concerned or those acting in his behalf may still
avail themselves again of the privilege of the writ (Moncupa
vs. Enrile, et al, G.R. No. 63345, Jan. 30, 1986).
2. The writs of habeas corpus and certiorari may be

ancillary to each other where necessary to give effect to
the supervisory powers of the higher courts. A writ of
habeas corpus reaches the body and the jurisdictional
matters, but not the record. A writ of certiorari reaches
the record but not the body. Hence, a writ of habeas corpus
may be used with the writ of certiorari for the purpose of
review. However, habeas corpus does not lie where the
petitioner has the remedy of appeal or certiorari because
it will not be permitted to perform the functions of a writ
of error or appeal for the purpose of reviewing mere errors
or irregularities in the proceedings of a court having
jurisdiction over the person and the subject matter.
T h e w r i t of habeas corpus is not i n t e n d e d as a
substitute for the functions of a trial court and in the
180
absence of exceptional circumstances, the orderly course

of trial should be pursued and the usual remedies exhausted
before the writ may be invoked. Habeas corpus is not
o r d i n a r i l y available in advance of trial to determine
jurisdictional errors that may arise. It has to be an
exceptional case for the w r i t of habeas corpus to be
available to an accused before trial. In the absence of
special circumstances, a court will not grant the writ
and discharge the prisoner in advance of a determination
of his case in court (Galvez, et al. vs. CA, et al., G.R.
No. 114046, Oct. 24, 1994).
get codal of writ of amparo and writ of habeas data.
181
7. C H A N G E OF N A M E
R U L E 103
CHANGE OF NAME
is not a matter of right but discretion of the court.
Section 1. Venue. — A person desiring to change

his name shall present the petition to the C o u r t of
First Instance of the province in w h i c h he resides,
or, i n the C i t y o f M a n i l a , t o the J u v e n i l e a n d
Domestic Relations Court.
NOTES
1. The procedure in Rule 103 regarding change of

name and in Rule 108 concerning the cancellation or
correction of entries in the civil registry are separate and
distinct. The allegations required, the issues involved and
the reliefs that may be granted in these proceedings are
different, hence they may not be substituted one for the
other for purposes of expediency. If both reliefs are to be
sought in the same proceeding, all the requirements of
Rules 103 and 108 must be complied with (Republic vs.
Belmonte, etc., et al, L-32600, Feb. 26, 1988).
2. The change of the name of a person, as recorded in

the civil registry, cannot be effected through the summary
proceeding contemplated in Article 412 of the Civil Code
which refers only to the correction of clerical errors and
not those which will involve a substantial change (see
Baybayan vs. Republic, L-20717, Mar. 18, 1966). This
special proceeding must be resorted to for such substantial
changes.
3. An alien can petition for a change of name (Yu, etc.

vs. Republic, L-20874, May 25, 1966) but he must be
domiciled in the Philippines (Ong Kuan Tin vs. Republic,
L-20997, April 27, 1967), as Sec. 2(a) requires prior bona
fide residence.
182
RULE 103 CHANGE OF NAME SEC. 2
4. T h e n a m e t h a t can be c h a n g e d u n d e r this
proceeding is the name that appears in the civil register
and not that which appears in the baptismal certificate or
that by which the person is known in the community (Ng
Yao Siong vs. Republic, L-20306, Mar. 31, 1966; Rendora
vs. Republic, L-26198, Oct. 16, 1970).
5. Where the first name appearing in the civil register

is "Baby," a petition for the change thereof to the correct
name is the proper remedy (Republic vs. Tanada, etc.,
et al., L-31563, Nov. 29, 1971).
Sec. 2. Contents of petition. — A p e t i t i o n f o r

c h a n g e of n a m e shall be signed a n d verified by the
p e r s o n d e s i r i n g his n a m e changed, or some other
p e r s o n on his behalf, a n d shall set forth: jurisdictional
( a ) T h a t the p e t i t i o n e r h a s b e e n a bona fide
resident of the province w h e r e the petition is filed
for at least three (3) years p r i o r to the date of such
filing;
( b ) T h e c a u s e f o r w h i c h t h e c h a n g e o f the
petitioner's name is sought;
( c ) T h e name asked for.
NOTES
1. Sees. 1 and 2 of Rule 103 require that the petition

for change of name must be filed by the person desiring to
change his/her name, as the proper party in the petition,
even if it may be signed and verified by some other person
in his/her behalf. Hence, the petition in this case should
be filed by the applicant here when she shall have reached
the age of majority. The decision to change her name, the
reason for the change, and the choice of a new name and
surname shall be hers alone to make. The reason for this
is that when she grows up to adulthood, she may not want
to use the surname or any of the aliases which, in this case,
183
were chosen for her by her mother (Republic vs. Marcos,

etc., et al., L-31065, Feb. 15, 1990).
2. A p e t i t i o n for c o r r e c t i o n of " n a m e in b i r t h
certificate" is actually a petition for change of name and is
covered by this Rule (San Roque vs. Republic, L-22035,
April 30, 1968) and not under Rule 108. See notes under
Sec. 2 of said Rule.
3. The following have been held to be valid grounds

for a change of name: (a) When the name is ridiculous,
dishonorable or extremely difficult to write or pronounce;
(b) When the change results as a legal consequence, as in
legitimation; (c) When the change will avoid confusion
(Haw Liong vs. Republic, L-21194, April 29, 1966; Chiu
Hap Chiu vs. Republic, L-20018, April 30, 1966; Republic
vs. Tahada, etc., et al., supra; Alfon vs. Republic, L-51201,
May 29,1980); (d) Having continuously used and been
known since childhood by a Filipino name, unaware of her
alien parentage (Ang Chay, et al. vs. Republic, L-28507,
July 31, 1970); and (e) A sincere desire to adopt a Filipino
name to erase signs of former alienage, all> in good faith
and without prejudicing anybody (Uy vs. Republic, L-22712,
Nov. 29, 1965).
4. A married woman's status is not affected by a decree

of legal separation as the vinculum is not severed, hence
she must continue to use her married name, pursuant to
Art. 372 of the Civil Code. A change of name under Rule
103 cannot be justified by said fact of legal separation
(Laperal vs. Republic, L-18008, Oct. 30, 1962).
5. A change of name should not be permitted if it

would give a false impression of family relationship to
another (Laperal vs. Republic, supra; Johnston vs. Repub-
lic, L-18284, April 30, 1963; Moore vs. Republic, L-18407,
June 26, 1963), but not if the proposed change of name
would not cause prejudice to the family whose surname it
is (Llaheta vs. Agrava, etc., L-32054, May 15, 1974).
184
RULE 103 CHANGE OF NAME SECS. 3, 4
Sec. 3. Order of hearing. — If the petition filed is

sufficient in f o r m and substance, the court, by an
o r d e r reciting the p u r p o s e of the petition, shall fix
a date a n d place f o r the h e a r i n g thereof, a n d shall
direct that a copy of the o r d e r be p u b l i s h e d b e f o r e
the h e a r i n g at least once a w e e k for three (3)
successive weeks in some n e w s p a p e r of general
circulation p u b l i s h e d in the p r o v i n c e , as the court
shall deem best. T h e date set for the h e a r i n g shall
not be w i t h i n thirty (30) days p r i o r to an election
n o r w i t h i n f o u r (4) months after the last publication
of the notice.
NOTES
1. A petition for change of a name is a proceeding in

rem and the publication of the order required under Sec. 3
is a jurisdictional requisite. To be valid and to confer
jurisdiction upon the court, such publication must give
the correct information (Ng Yao Siong vs. Republic, supra),
and a defect in such publication is fatal (Ma Ing Chao vs.
Republic, L-28051, July 28, 1970; Rendora vs. Republic,
supra; Republic vs. Aquino, etc., et al., L-32779, May 25,
1979; Republic vs. Judge of Br. Ill of the CFI of Cebu,
et al, L-35605, Oct. 11, 1984).
2. All aliases of the applicant must be set forth in the

title of the petition otherwise, although the petition has
been duly published, such defect would be fatal even if said
other aliases are contained in the body of the petition (Go
Chiu Beng vs. Republic, L-29574, Aug. 18, 1972).
Sec. 4. Hearing. — A n y interested person may

a p p e a r at the h e a r i n g and oppose the petition. The
Solicitor G e n e r a l or the p r o p e r provincial or city
fiscal shall a p p e a r on behalf of the Government of
the R e p u b l i c .
185
Sec. 5. Judgment. — U p o n satisfactory proof in

open court on the date fixed in the o r d e r that such
order has been published as directed and that the
allegations of the petition are true, the court shall,
if proper and reasonable cause appears for changing
the name of the petitioner, adjudge that such name
be changed in accordance with the p r a y e r of the
petition.
Sec. 6. Service of judgment. — J u d g m e n t s or

orders r e n d e r e d in connection w i t h this r u l e shall
be furnished the civil r e g i s t r a r of the municipality
or city w h e r e the court issuing the same is situated,
w h o shall f o r t h w i t h e n t e r the s a m e i n the civil
register.
NOTES
1. A change of name granted by the court affects only

the petitioner. A separate petition for change of name must
be filed for his wife and children (Secan Kok vs. Republic,
L-27621, Aug. 30, 1973). Inceptively, a joint petition for
all the qualified members of said family, as co-petitioners,
would have been permissible and should have been the
appropriate remedy.
2. Arts. 364 to 380, Civil Code, regulate the use of

surnames. A r t . 376 thereof provides that no person can
change his name or surname without judicial authority.
3. In Republic vs. CA, et al. (G.R. N o . 97906, May 21,

1992), the Supreme Court permitted an adopted Muslim-
F i l i p i n o , who had consequently assumed the family
name of "Wong" of his adopting parents, to reassume the
surname "Alcala" of his natural parents upon a showing
that his adopted Chinese surname was subjecting him to
ridicule and affecting his business and social life in the
Muslim community where he resides. T h i s fact was
186
RULE 103 CHANGE OF NAME SECS. 5-6
attested to by the surviving adopting mother who gave her

consent to his petition for that purpose.
The Court held that while under Art. 365 of the Civil
Code an adopted child shall bear the surname of the
adopter, the change of the surname of the adopted child is
more an incident rather than the object of adoption
proceedings wherein the welfare of the child is the primary
consideration. If a legitimate child may, under exceptional
circumstances petition for a change of name, there is no
reason why an adopted child cannot avail of the same
remedy. A r t . 365 of the Civil Code is not an exception, nor
can it bar resort to Rule 103 of the Rules of Court. After
all, a change of name does not change one's existing family
relations or the rights or duties flowing therefrom. It does
not alter one's legal capacity, status or citizenship; what is
altered is only the name.
4. A decree of adoption grants the adoptee the right

to use the adopter's surname but not to change the
former's first name which relief must be sought in a
discrete petition under this Rule (Republic vs. Hernandez,
etc., et al., G.R. No. 117209, Feb. 9, 1996). See, however,
the new rule laid down by Sees. 7(6) and 10 of A . M .
N o . 02-6-02-SC approved on July 31, 2002 (Appendix DD),
which provides:
"SEC. 7. Contents of the Petition. - x x x
(6) If the petition prays for a change of name, it
shall also state the cause or reason for the change of
name.
In all petitions, it shall be alleged:
(a) The first name, surname or surnames, age
and residence of the adoptee as shown by his record of
birth, baptismal or foundling certificate and school
records.
(b) That the adoptee is not disqualified by law
to be adopted.
187
(c) The probable value and character of the

estate of the adoptee.
(d) The first name, surname or surnames by
which the adoptee is to be known and registered in
the Civil Registry.
A certification on non-forum shopping shall be
included pursuant to Section 5, Rule 7 of the 1997
Rules of Civil Procedure.
X X X
SEC. 10. Change of name. - In case the petition

also prays for change of name, the title or caption must
contain:
(a) The registered name of the child;
(b) Aliases or other names by which the child has
been known; and
(c) The full name by which the child is to be
known."
188
8. V O L U N T A R Y D I S S O L U T I O N
OF CORPORATIONS
RULE 104
VOLUNTARY DISSOLUTION OF CORPORATIONS
Section 1. Where, by whom and on what showing

application made. — A petition for dissolution of a
c o r p o r a t i o n s h a l l b e f i l e d i n the C o u r t o f F i r s t
Instance of the p r o v i n c e w h e r e the p r i n c i p a l office
of a c o r p o r a t i o n is situated. T h e petition shall be
signed by a majority of its b o a r d of directors or other
o f f i c e r s h a v i n g t h e m a n a g e m e n t o f its a f f a i r s ,
v e r i f i e d by its president or secretary or one of its
directors, a n d shall set forth all claims a n d demands
against it, a n d that its dissolution w a s resolved upon
by a m a j o r i t y of the m e m b e r s , or, if a stock
c o r p o r a t i o n , b y the a f f i r m a t i v e v o t e o f the
stockholders holding a n d representing two-thirds of
all shares of stock issued or subscribed, at a meeting
o f its m e m b e r s o r s t o c k h o l d e r s c a l l e d f o r that
purpose.
NOTE
1. F o r m e r l y , a c o r p o r a t i o n may be dissolved
v o l u n t a r i l y and extrajudicially under Sec. 62 of A c t
N o . 1459; or voluntarily and judicially under this Rule; or
involuntarily and judicially in quo warranto proceedings
under Rule 66. However, voluntary and involuntary
dissolution of corporations are now governed by the
Corporation Code (B.P. Big. 68).
Sec. 2. Order thereupon for filing objections. — If

the petition is sufficient in form and substance, the
c o u r t , b y a n o r d e r r e c i t i n g the p u r p o s e o f the
189
p e t i t i o n , s h a l l fix a d a t e o n o r b e f o r e w h i c h
objections thereto may be filed by any person, which
date shall not be less than thirty (30) nor more than
sixty (60) days after the entry of the order. Before
such date a copy of the o r d e r shall be published at
least once a week for four (4) successive weeks in
some newspaper of general circulation p u b l i s h e d in
the municipality or city w h e r e the p r i n c i p a l office
of the corporation is situated, or, if there be no such
n e w s p a p e r , then i n some n e w s p a p e r o f g e n e r a l
circulation in the Philippines, a n d a similar copy
shall be posted for f o u r (4) weeks in three p u b l i c
places in such municipality or city.
Sec. 3. Hearing, dissolution, and disposition of

assets. Receiver. — U p o n five (5) days notice g i v e n
after the date on w h i c h the r i g h t to file objections
as fixed in the o r d e r expired, the court shall p r o c e e d
t o h e a r the p e t i t i o n a n d try a n y issue m a d e b y
objections filed; and if no such objection is
s u f f i c i e n t , a n d the m a t e r i a l a l l e g a t i o n s o f t h e
petition are true, it shall r e n d e r j u d g m e n t dissolving
the corporation and directing such disposition of its
assets as justice requires, and may appoint a receiver
t o collect s u c h assets a n d p a y t h e d e b t s o f the
corporation.
Sec. 4. What shall constitute record. — T h e

petition, orders, p r o o f of p u b l i c a t i o n a n d posting,
objections filed, d e c l a r a t i o n of dissolution, a n d any
evidence taken, shall constitute the r e c o r d in the
case.
NOTE
1. The corresponding provisions of the Corporation

Code are as follows:
190
RULE 104 DISSOLUTION OF CORPORATIONS SECS. 3-4
"SEC. 118. Voluntary dissolution where no

creditors are affected. — In case dissolution of a
corporation does not prejudice the rights of any
creditor having a claim against such corporation, then
such dissolution may be effected by majority vote of
the board of directors or trustees, and by a resolution
d u l y a d o p t e d b y t h e a f f i r m a t i v e v o t e o f the
stockholders owning at least two-thirds (2/3) of the
outstanding capital stock or of at least two-thirds
(2/3) of the members at a meeting to be held on the
call of the directors or trustees after publishing the
notice of the time, place and object of the meeting for
three (3) consecutive weeks in a newspaper published
in the place w h e r e the p r i n c i p a l office of said
corporation is located; and if no newspaper is published
in such p l a c e , t h e n in a n e w s p a p e r of g e n e r a l
circulation in the Philippines, and after sending such
notice to each stockholder or member either by
registered mail or by personal delivery at least thirty
( 3 0 ) days p r i o r to said m e e t i n g . A copy of the
resolution authorizing the dissolution shall be certified
by a majority of the board of directors or trustees and
countersigned by the secretary of the corporation. The
Securities and Exchange Commission shall thereupon
issue the certificate of dissolution.
SEC. 119. Voluntary dissolution where credi-

tors are affected. — W h e r e the dissolution of a
corporation may prejudice the rights of any creditor,
a petition for dissolution of a corporation may be filed
with the Securities and Exchange Commission. The
petition shall be signed by a majority of its board of
directors or trustees or other officers having the
management of its affairs, verified by its president or
secretary or one of its directors or trustees, and shall
set forth all claims and demands against it, and that
its dissolution was resolved upon by the affirmative
vote of the stockholders representing at least two-
191
thirds (2/3) of the outstanding capital stock or by at

least two-thirds (2/3) of the members, at a meeting of
its stockholders or members called for that purpose.
If the petition is sufficient in form and substance,
the Commission, by an order reciting the purpose of
the petition, shall fix a date on or before which
objections thereto may be filed by any person, which
date shall not be less than thirty (30) days nor more
than sixty (60) days after the entry of the order. Before
such date, a copy of the order shall be published at
least once a week for three (3) consecutive weeks in a
newspaper of general circulation published in the
municipality or city where the principal office of the
c o r p o r a t i o n is situated, or if t h e r e be no such
newspaper, then in a newspaper of general circulation
in the Philippines, and a similar copy shall be posted
for three (3) consecutive weeks in three ( 3 ) public
places in such municipality or city.
Upon five (5) days notice, given after the date on
which the right to file objections as fixed in the order
has expired, the Commission shall proceed to hear the
petition and try any issue made by the objections filed;
and if no such objection is sufficient, and the material
allegations of the petition are true, it shall render
judgment dissolving the corporation and directing such
disposition of its assets as justice requires, and may
appoint a receiver to collect such assets and pay the
debts of the corporation."
192
9. J U D I C I A L A P P R O V A L OF VOLUNTARY
RECOGNITION OF MINOR NATURAL CHILDREN
R U L E 105
JUDICIAL APPROVAL OF VOLUNTARY

RECOGNITION OF MINOR NATURAL CHILDREN
Section 1. Venue. — W h e r e j u d i c i a l a p p r o v a l of a
v o l u n t a r y recognition of a m i n o r n a t u r a l child is
r e q u i r e d , such child or his parents shall obtain the
same by filing a petition to that effect with the Court
of First Instance of the province in w h i c h the child
resides. In the City of M a n i l a , the petition shall be
filed in the Juvenile a n d Domestic Relations Court.
NOTE
1. The recognition of natural children could be made

in the record of birth, a will, a statement before a court of
record, or in any authentic writing (Art. 278, Civil Code)
and when the recognition of a minor natural child does
not take place in a record of birth or in a will, judicial
approval is necessary (Art. 281, id.). Consequently, this
proceeding was available where the recognition of a minor
natural child is made in a statement before a court of record
or in an authentic writing, hence Sec. 2 of this Rule requires
that either of said documents be attached to the petition
under this Rule.
Where the natural child who was recognized in any of
the four (4) ways provided for in the Civil Code was of age
at the time of recognition, judicial approval of such
recognition was not required, and this Rule shall not
apply to such a situation.
Now, however, the matter of the filiation of illegitimate
children and the proof thereof is governed by Arts. 172
and 173, in relation to Art. 175, of the Family Code.
193
Sec. 2. Contents of petition. — The petition for

judicial approval of a voluntary recognition of a
minor n a t u r a l child shall contain the f o l l o w i n g
allegations:
( a ) The jurisdictional facts;
( b ) The names and residences of the parents w h o
acknowledged the child, or of either of them, and
their compulsory heirs, and the person or persons
with whom the child lives;
(c) The fact that the recognition m a d e by the
parent or parents took place in a statement b e f o r e
a court of record or in an authentic w r i t i n g , copy of
the statement o r w r i t i n g b e i n g a t t a c h e d t o the
petition.
Sec. 3. Order of hearing. — U p o n the filing of the

petition, the court, by an o r d e r reciting the p u r p o s e
of the same, shall fix the date a n d p l a c e f o r the
hearing thereof, w h i c h date shall not be m o r e than
six (6) months after the entry of the order, a n d shall,
moreover, cause a copy of the o r d e r to be s e r v e d
personally or by mail u p o n the interested parties,
and published once a w e e k f o r three (3) consecutive
weeks, in a n e w s p a p e r or n e w s p a p e r s of g e n e r a l
circulation in the province.
Sec. 4. Opposition. — A n y interested p a r t y must,

within fifteen (15) days f r o m service, or f r o m the
last date of publication, of the o r d e r r e f e r r e d to in
the next p r e c e d i n g section, file his opposition to the
petition, stating the g r o u n d s or reasons therefor.
Sec. 5. Judgment. — If, f r o m t h e e v i d e n c e

presented d u r i n g the h e a r i n g , the court is satisfied
that the recognition of the m i n o r n a t u r a l child w a s
w i l l i n g l y a n d v o l u n t a r i l y m a d e b y the p a r e n t o r
194
RULE 105 JUDICIAL APPROVAL OF
VOLUNTARY RECOGNITION, ETC.
p a r e n t s concerned, and that the recognition is for

the best interest of the child, it shall r e n d e r
j u d g m e n t g r a n t i n g j u d i c i a l a p p r o v a l of such
recognition.
Sec. 6. Service of judgment upon civil registrar. —

A copy of the j u d g m e n t r e n d e r e d in accordance with
the p r e c e d i n g section shall be served u p o n the civil
r e g i s t r a r w h o s e duty it shall be to enter the same in
the register.
195
10. C O N S T I T U T I O N OF F A M I L Y H O M E
R U L E 106
C O N S T I T U T I O N OF FAMILY H O M E
Section 1. Who may constitute. — The h e a d of a

family owning a house and the l a n d on w h i c h it is
situated may constitute the same into a family home
by filing a verified petition to that effect w i t h the
Court of First Instance of the province or city w h e r e
the property is located. In the City of M a n i l a , the
petition shall be filed in the Juvenile a n d Domestic
Relations Court.
W h e n there is d a n g e r that a p e r s o n o b l i g e d to
give support may lose his or h e r fortune b e c a u s e of
grave mismanagement or on account of riotous
living, his or h e r spouse, if any, a n d a majority of
those entitled to be supported by him or h e r may
petition the C o u r t of First Instance for the creation
of the family home.
NOTES
1. In view of the provisions of the Family Code, as

reproduced in N o t e 1 under Sec. 6 of this Rule, these
provisions on the judicial constitution of a family home
are applicable only to such proceedings which took place
prior to the effectivity of the Family Code on August 3,
1988.
2. Under the Civil Code, a family home is the dwelling

house where a person and his family resides, and the land
on which it is situated (Art. 223). It may be constituted
extrajudicially (Arts. 240 to 251) or judicially, as under this
Rule, in accordance with said Code (Arts. 225 to 239).
196
RULE 106 CONSTITUTION OF FAMILY HOME SECS. 2-3
If judicially constituted, it is exempt from execution,

forced sale or attachment except for non-payment of taxes
or a m o r t g a g e debt constituted upon said property
(Art. 232).
3. A verified petition for the constitution of a family

home may be filed by (a) a married person, (b) an unmarried
person who is the head of a family, or (c) a spouse and a
majority of persons entitled to support where there is
danger that the other spouse may lose his or her fortune.
Sec. 2. Contents of petition. — T h e petition shall

contain the f o l l o w i n g particulars:
( a ) D e s c r i p t i o n of the property;
( b ) An estimate o f its actual value;
( c ) A statement that the petitioner is actually
r e s i d i n g in the premises;
( d ) T h e e n c u m b r a n c e s J^hereon;
( e ) T h e names a n d addresses of all the creditors
o f the p e t i t i o n e r o r h e a d o f the f a m i l y a n d all
m o r t g a g e e s a n d other persons w h o h a v e an interest
in the property;
( f ) T h e n a m e s of all the b e n e f i c i a r i e s of the
family home.
Sec. 3. Notice and publication. — The court shall

n o t i f y the c r e d i t o r s , m o r t g a g e e s a n d all o t h e r
persons w h o h a v e an interest in the estate, of the
filing of the petition, causing copies thereof to be
served u p o n them, and published once a week for
t h r e e ( 3 ) c o n s e c u t i v e w e e k s in a n e w s p a p e r of
general circulation. The petition shall, moreover,
be caused to be posted in a conspicuous place in the
p a r c e l of l a n d mentioned therein, a n d also in a
conspicuous place of the municipal building of the
municipality or city in which the land is situated,
197
for at least fourteen (14) days p r i o r to the day of the

hearing.
Sec. 4. Objection and date of hearing. — In the

notice and publication r e q u i r e d in the p r e c e d i n g
section, the court shall require the interested parties
to file their objection to the petition within a period
of not less than thirty (30) days from receipt of notice
or from the date of last publication, a n d shall fix
the date and time of the h e a r i n g of the petition.
Sec. 5. Order. — After hearing, if the court finds

that the actual value of the p r o p o s e d family home
does not exceed twenty thousand pesos, or thirty
thousand pesos in chartered cities, a n d that no third
person is prejudiced thereby, or that creditors h a v e
been given sufficient security for their credits, the
petition shall be a p p r o v e d .
Sec. 6. Registration of order. — A certified copy

of the o r d e r of the c o u r t a p p r o v i n g the
establishment of the family home shall be f u r n i s h e d
the register of deeds w h o shall r e c o r d the same in
the registry of property.
NOTE
1. Under Art. 153 of the Family Code, the family home

is deemed constituted on a house and lot from the time it
is occupied as a family residence. Unlike the provisions of
the Civil Code on which this Rule is based, the Family Code
does not require an extrajudicial (by registration) or judicial
constitution of the family home. Its pertinent provisions
are as follows:
"Art. 152. The family home, constituted jointly
by the husband and the wife or by an unmarried head
of a family, is the dwelling house where they and their
198
family reside, and the land on which it is situated

(223a)
A r t . 153. T h e family home is deemed consti-

tuted on a house and lot from the time it is occupied
as a family residence. From the time of its constitu-
tion and so long as any of its beneficiaries actually
resides therein, the family home continues to be such
and is e x e m p t from e x e c u t i o n , f o r c e d sale or
attachment except as hereinafter provided and to the
extent of the value allowed by law. (223a)
A r t . 154. The beneficiaries of a family home are:

(1) T h e husband and wife, or an unmarried per-
son who is the head of a family; and
(2) Their parents, ascendants, descendants, bro-
t h e r s and sisters, w h e t h e r the r e l a t i o n s h i p be
legitimate or illegitimate, who are living in the family
home and who depend upon the head of the family for
legal support. (226a)
A r t . 155. T h e family home shall be exempt from

execution, forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution
of the family home;
(3) For debts secured by m o r t g a g e s on the
premises before or after such constitution; and
(4) For debts due to l a b o r e r s , mechanics,
architects, builders, materialmen and others who have
r e n d e r e d service or furnished material for the
construction of the building. (243a)
Art. 156. The family home must be part of the
properties of the absolute community or the conjugal
partnership, or of the exclusive properties of either
spouse with the latter's consent. It may also be
199
constituted by an unmarried head of a family on his

or her own property.
Nevertheless, property that is the subject of a
conditional sale on installments where ownership is
reserved by the vendor only to guarantee payment of
the purchase price may be constituted as a family
home. (227a, 228a)
Art. 157. The actual value of the family home
shall not exceed, at the time of its constitution, the
amount of three hundred thousand pesos in urban
areas, and two hundred thousand pesos in rural areas,
or such amounts as may hereafter be fixed by law.
In any event, if the value of the currency changes

after the adoption of this Code, the value most favor-
able for the constitution of a family home shall be the
basis of evaluation.
For purposes of this A r t i c l e , urban areas are

deemed to include chartered cities and municipalities
whose annual income at least equals that legally
required for chartered cities. A l l others are deemed
to be rural areas. (231a)
A r t . 158. T h e f a m i l y h o m e m a y be s o l d ,
alienated, donated, assigned or encumbered by the
owner or owners thereof with the written consent of
the person constituting the same, the latter's spouse,
and a majority of the beneficiaries of legal age. In
case of conflict, the court shall decide. (235a)
Art. 159. The family home shall continue despite

the death of one or both spouses or of the unmarried
head of the family for a period of ten years or for as
long as there is a minor beneficiary, and the heirs
cannot partition the same unless the court finds
compelling reasons therefor. This rule shall apply
regardless of whoever owns the property or constituted
the family home. (238a)
200
A r t . 160. When a creditor whose claim is not

among those mentioned in A r t i c l e 155 obtains a
judgment in his favor, and he has reasonable grounds
to believe that the family home is actually worth more
than the maximum amount fixed in Article 157, he
may apply to the court which rendered the judgment
for an order directing the sale of the property under
execution. The court shall so order if it finds that the
actual value of the family home exceeds the maximum
allowed by law as of the time of its constitution. If
the increased actual value exceeds the maximum
allowed in Article 157 and results from subsequent
voluntary improvements introduced by the person
or persons constituting the family home, by the owner
or owners of the property, or by any of the beneficia-
ries, the same rule and procedure shall apply.
At the execution sale, no bid below the value

allowed for a family home shall be considered. The
p r o c e e d s shall be a p p l i e d first to the amount
mentioned in Article 157, and then to the liabilities
under the judgment and the costs. The excess, if any,
shall be delivered to the judgment debtor. (247a, 248a)
A r t . 161. For purposes of availing of the benefits

of a family home as provided for in this Chapter, a
person may constitute, or be the beneficiary of, only
one family home, (n)
A r t . 162. The provisions in this Chapter shall
also govern existing family residences insofar as said
provisions are applicable, ( n ) "
201
11. A B S E N T E E S
R U L E 107
ABSENTEES
Section 1. Appointment of representative. — W h e n

a p e r s o n d i s a p p e a r s f r o m his d o m i c i l e , his
whereabouts b e i n g u n k n o w n , and without h a v i n g
left an agent to a d m i n i s t e r his p r o p e r t y , or the
p o w e r c o n f e r r e d u p o n the agent h a s e x p i r e d , a n
interested party, relative or friend, may petition the
C o u r t o f F i r s t I n s t a n c e o f the p l a c e w h e r e the
absentee resided b e f o r e his d i s a p p e a r a n c e , for the
appointment of a p e r s o n to r e p r e s e n t him
provisionally in all that may be necessary. In the
City of M a n i l a , the petition shall be filed in the
Juvenile and Domestic Relations C o u r t .
Sec. 2. Declaration of absence; who may petition. —

After the lapse of two (2) years f r o m his d i s a p p e a r -
ance and without any n e w s a b o u t the absentee or
since the receipt of the last news, or of five (5) y e a r s
in case the absentee has left a p e r s o n in c h a r g e of
the administration of his property, the d e c l a r a t i o n
of his a b s e n c e a n d a p p o i n t m e n t of a t r u s t e e or
a d m i n i s t r a t o r m a y b e a p p l i e d f o r b y a n y o f the
following:
( a ) T h e spouse present;
( b ) T h e heirs instituted in a will, w h o may
present an authentic copy of the same;
(c) The relatives w h o w o u l d succeed b y the l a w
of intestacy; a n d
( d ) T h o s e w h o h a v e o v e r the p r o p e r t y o f the
absentee some right s u b o r d i n a t e d to the condition
of his death.
202
RULE 107 ABSENTEES SECS. 3-5
Sec. 3. Contents of petition. — T h e petition for the

a p p o i n t m e n t of a r e p r e s e n t a t i v e , or f o r the
d e c l a r a t i o n of absence a n d the appointment of a
t r u s t e e o r a n a d m i n i s t r a t o r , must s h o w the
following:
( b ) T h e names, ages, a n d residences of the heirs
instituted in the w i l l , copy of w h i c h shall be
presented, a n d of the relatives w h o w o u l d succeed
by the l a w of intestacy;
( c ) T h e names a n d residences of creditors and
others w h o may have any adverse interest over the
p r o p e r t y of the absentee;
( d ) T h e p r o b a b l e value, location a n d character
of the p r o p e r t y b e l o n g i n g to the absentee.
Sec. 4. Time of hearing, notice and publication

thereof. — W h e n a petition for the appointment of a
representative, or for the declaration of absence and
the appointment of a trustee or administrator is
filed, the court shall fix a date and place for the
h e a r i n g thereof w h e r e all concerned may appear to
contest the petition.
Copies of the notice of the time and place fixed

f o r the h e a r i n g shall be served u p o n the k n o w n
heirs, legatees, devisees, creditors and other
interested persons, at least ten (10) days before the
day of the hearing, and shall be published once a
w e e k for three (3) consecutive weeks p r i o r to the
time designated for the hearing, in a newspaper of
general circulation in the province or city where the
absentee resides, as the court shall deem best.
Sec. 5. Opposition. — A n y o n e a p p e a r i n g to
contest the petition shall state in writing his grounds
therefor, and serve a copy thereof on the petitioner
203
and other interested parties on or before the date

designated for the hearing.
Sec. 6. Proof at hearing; order. — At the hearing,

compliance with the provisions of section 4 of this
rule must first be shown. U p o n satisfactory proof
of the allegations in the petition, the court shall
issue an order granting the same and appointing the
representative, trustee or a d m i n i s t r a t o r f o r the
a b s e n t e e . T h e j u d g e s h a l l t a k e the n e c e s s a r y
measures to safeguard the rights and interests of
the absentee and shall specify the power, obligations
and remuneration of his representative, trustee or
administrator, r e g u l a t i n g them by the rules
concerning guardians.
In case of declaration of absence, the same shall

not t a k e e f f e c t u n t i l s i x ( 6 ) m o n t h s a f t e r its
publication in a n e w s p a p e r of general circulation
designated by the court and in the Official Gazette.
Sec. 7. Who may be appointed. — In the appoint-

ment of a representative, the spouse present shall
be p r e f e r r e d w h e n there is no legal s e p a r a t i o n . If
the absentee left no spouse, or if the spouse present
is a minor or otherwise incompetent, any competent
person may be appointed by the court.
In case of declaration of absence, the trustee or

administrator of the absentee's p r o p e r t y shall be
a p p o i n t e d in a c c o r d a n c e w i t h the p r e c e d i n g
paragraph.
Sec. 8. Termination of administration. — T h e

trusteeship or administration of the p r o p e r t y of the
absentee shall cease u p o n o r d e r of the court in any
of the following cases:
204
( a ) W h e n the absentee a p p e a r s personally o r b y

m e a n s of an agent;
( b ) W h e n the death of the absentee is p r o v e d and
his testate or intestate heirs a p p e a r ;
( c ) W h e n a t h i r d p e r s o n a p p e a r s , s h o w i n g by a
p r o p e r document that he has acquired the absentee's
p r o p e r t y b y p u r c h a s e o r other title.
In these cases the trustee or administrator shall

c e a s e i n t h e p e r f o r m a n c e o f his office, a n d the
p r o p e r t y shall be p l a c e d at the disposal of those
w h o m a y h a v e a r i g h t thereto.
NOTES
1. T h e relevant provisions of the Civil Code are as

follows:
"Art. 381. When a person disappears from his

domicile his whereabouts being unknown, and without
leaving an agent to administer his property the judge,
at the instance of an interested party, a relative, or a
friend, may appoint a person to represent him in all
that may be necessary.
This same rule shall be observed when under
similar circumstances the power conferred by the
absentee has expired.
A r t . 382. T h e appointment referred to in the
preceding article having been made, the judge shall
take the necessary measures to safeguard the rights
and interests of the absentee and shall specify
the powers, obligations and remuneration of his
representative, regulating them according to the
circumstances, by the rules concerning guardians.
Art. 383. In the appointment of a representative,

the spouse present shall be preferred when there is
205
no legal separation.
If the absentee left no spouse, or if the spouse
present is a minor, any competent person may be
appointed by the court.
Art. 384. Two years having elapsed without any
news about the absentee or since the receipt of the
last news, and five years in case the absentee has left
a person in charge of the administration of his
property, his absence may be declared.
Art. 385. The following may ask for the decla-

ration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may pre-
sent an authentic copy of the same;
(3) The relatives who may succeed by the law of
intestacy;
(4) Those who may have over the property of the
absentee some right subordinated to the condition of
his death.
A r t . 386. T h e judicial declaration of absence

shall not take effect until six m o n t h s after its
publication in a newspaper of general circulation."
2. A petition under this Rule is proper only where the

absentee has properties to be taken care of or administered
by a representative to be appointed by the court, otherwise
such petition should be dismissed. For purposes of the civil
marriage law, it is not necessary to have the former spouse
declared an absentee [Jones vs. Hortiguela, 64 Phil. 179]
(Reyes vs. Alejandro, etc., L-32026, Jan. 16, 1986).
3. See, however, Arts. 41 to 43 of the Family Code on

subsequent marriages contracted where the spouse of the
subsisting marriage had been absent for four or t w o
consecutive years, under the circumstances contemplated
206
therein, and the spouse present had a well-founded belief

that the absent spouse was already dead. For the purpose
of contracting said subsequent marriage, the spouse present
must institute a summary proceeding provided in said Code
for the declaration of presumptive death of the absentee.
This is reiterated in Sec. 3 ( w ) ( 4 ) , Rule 131.
207
12. C A N C E L L A T I O N OR C O R R E C T I O N
OF ENTRIES IN THE CIVIL REGISTRY
R U L E 108
CANCELLATION OR CORRECTION
OF ENTRIES IN THE CIVIL REGISTRY
Section 1. Who may file petition. — A n y p e r s o n

i n t e r e s t e d in an act, event, o r d e r or d e c r e e
concerning the civil status of persons which has been
r e c o r d e d in the civil register, may file a v e r i f i e d
petition for the cancellation or correction of any
entry r e l a t i n g t h e r e t o , w i t h the C o u r t o f F i r s t
Instance of the province w h e r e the c o r r e s p o n d i n g
civil registry is located.
Sec. 2. Entries subject to cancellation or correction.

— U p o n g o o d a n d v a l i d g r o u n d s , the f o l l o w i n g
entries in the civil r e g i s t e r m a y be c a n c e l l e d or
corrected: ( a ) births; ( b ) marriages; (c) deaths;
( d ) legal separations; ( e ) j u d g m e n t s of annulments
of m a r r i a g e ; (f) judgments d e c l a r i n g m a r r i a g e s void
f r o m the b e g i n n i n g ; ( g ) l e g i t i m a t i o n s ; ( h ) a d o p -
tions; ( i ) a c k n o w l e d g m e n t s o f n a t u r a l c h i l d r e n ;
( j ) n a t u r a l i z a t i o n ; ( k ) election, loss o r r e c o v e r y
of citizenship; (1) civil interdiction; ( m ) j u d i c i a l de-
termination of filiation; ( n ) voluntary emancipation
of a minor; and ( o ) change of name.
NOTES
1. The former holdings on this Rule were to the effect

that where the entry sought to be corrected is merely an
innocuous or clerical error such as misspelling or the like,
a summary proceeding may be resorted to as contemplated
in and authorized by A r t . 412 of the Civil Code (Anzaldo
208
RULE 108 CANCELLATION OR CORRECTION, ETC.
vs. Republic, 102 Phil. 1046), but this refers only to

harmless and innocuous alterations such as misspellings
or errors visible to the eye or obvious to the understanding
(Chua Wee, et al. vs. Republic, L-27731, April 21, 1971;
Vda. de Castro vs. Republic, L-28520, Jan. 17,1985). Rule
108 is the procedure for effecting the correction of such
innocuouserrors andisi limited only to the implementation
orsalcLAr_t 412 (Go, et aT."~"v~s". Civil Registrar of the
L
Municipality of Malabon, Rizal, L-29544, May 31, 1971),

otherwise it would modify or increase substantive rights
and would thereby be unconstitutional (Republic vs. De la
Cruz, et al., L-34079, Nov. 2, 1982). C h a n g i n g the
indication of the sex of the child stated in the birth
certificate from " M " to " F " is a mere correction of a clerical
error authorized under this Rule (Wing vs. Abubakar, etc.,
et al., L-25168, Jan. 31, 1981) but not those involving the
legitimacy or illegitimacy of the child (Rosales vs. Castillo
Resales, et al., L-31712, Sept. 28, 1984).
2. A petition for the "correction of names and the

certificates of birth" may be treated as a petition for change
of name under Rule 103 where it contained the necessary
allegations and evidence was presented therefor (Sison, et
al. vs. Republic, et al., G.R. No. 58087, Dec. 17, 1982).
3. While "birth" is mentioned as one of the entries

that may be corrected, this refers only to such particulars
as are attendant to birth, not details of nationality or
citizenship (Wong, et al. vs. Republic, et al., L-29376,
July 30, 1982). The entry regarding "citizenship" which
may be corrected or cancelled under this Rule refers only
to its election, loss or recovery (Chua Wee vs. Republic,
supra; Republic vs. CFIofDavao Oriental, et al., L-31748,
Aug. 20, 1979; Tan vs. Republic, L-27735, Dec. 26, 1984).
4. Art. 176 of the Family Code has been amended by

R.A. 9255, effective March 19, 2004, to the effect that
illegitimate children may use the surname of their father
if their filiation has been expressly recognized by him
209
through the record of birth in the civil register, or by an

admission in a public document or private handwritten
instrument made by the father, provided that he had the
right to institute an action in court to prove non-filiation
during his lifetime. the father.
5. An action for plaintiffs declaration as the lawful
wife of the deceased and the correction of the entry therefor
in his death certificate is a proper remedy. Publication
may be dispensed with where no other parties are affected
and this is an adversary, not a summary, proceeding
(Tolentino vs. Paras, et al., L-43905, May 30, 1983).
6. As already stated, material corrections in the record

of birth cannot be effected by a summary action. However,
it was subsequently held that such ruling does not apply
to the situation where a verified petition for change of
names entered in the civil register, although filed under
Rule 108, was duly heard w i t h copies to all parties,
publication in a newspaper of general circulation and
introduction of evidence (Republic vs. Macli-ing, et al.,
G.R. No. 57211, Mar. 18, 1985). The same doctrine was
followed where the petition was filed and conducted under
Rule 108 but all procedural rules for an appropriate
adversary proceeding were observed, hence even if the
correction sought would affect the citizenship and status
of the minors involved, such relief could be granted since
such proceeding could no longer be considered "summary"
although conducted under Rule 108 (Republic vs. Valencia,
et al., L-32181, Mar. 5, 1986; Chiao Ben Lim vs. Zosa, etc.,
L-40252, Dec. 29, 1986; cf. Republic vs. Flojo, et al.,
L-49703, July 31, 1987). In other words, the proceedings
under Rule 108 may in effect be either summary or
adversary in nature. If the correction sought to be made
in the civil register is clerical, the procedure to be adopted
is summary. If the rectification affects the civil status,
citizenship or nationality of a party, it is deemed substantial
and the procedure to be adopted is adversarial (Republic
210
vs. Bautista, et al, L-35316, Oct. 26, 1987; Eleosida, etc.

vs. Local Civil Register, etc., et al., G.R. No. 130277
May 9, 2002).
7. E v e n t u a l l y , in Lee, et al. vs. CA, et al. ( G . R .

N o . 118387, Oct. 11, 2001), the Supreme Court, noting the
conflicting decisions on Rule 108 and the emergent legal
views on the controversial issue therein, reiterated the
ruling in Republic vs. Valencia, supra, that even substantial
errors in a civil register may be corrected provided the
aggrieved parties avail themselves of the appropriate
adversary proceeding; and that the proceeding under Rule
108 ceases to be summary in nature and takes on the
character of an appropriate adversary proceeding when all
the procedural requirements therein are complied with.
It explained that if the petition filed under Rule 108

is merely to correct obvious clerical errors, the court may
conduct a summary procedure and issue an order for the
correction of that mistake. However, if the changes may
affect the substantial rights and status of a party, or
substantial entries in the civil register, the same may be
allowed only after appropriate adversary proceeding,
likewise under Rule 108, by observing the requirements
spelled out therein.
It took note of the then recently enacted R.A. 9048

which authorizes the City or Municipal Registrar or the
Consul General to correct a clerical or typographical error
in an entry and/or change of first name or nickname in the
civil register without need of a judicial order (see Appendix
J J, and the implementing rules and regulations thereof,
Appendix KK). It thus concluded that R . A . 9048 now
embodies the summary procedure, while Rule 108 provides
the appropriate adversary proceedings as contemplated in
the preceding discussion. To that extent, said law has
removed from the ambit of Rule 108 the correction of
clerical or typographical errors, leaving the operation of
211
Rule 108 to substantial changes and correction of entries

in the civil register.
8. In petitions for change of name, the venue is the
residence of the petitioner; in petitions for the correction
or cancellation of entries in the civil registry, the venue is
the place where said registry is located. In the first, the
Solicitor General must be notified by service of a copy of
the petition; in the second, the civil registrar concerned is
made a party to the proceeding as a respondent.
Sec. 3. Parties. — W h e n cancellation or correc-

tion of an entry in the civil register is sought, the
civil registrar a n d all persons w h o h a v e or claim any
interest which w o u l d be affected t h e r e b y shall be
made parties to the proceeding.
Sec. 4. Notice and publication. — U p o n the filing

of the petition, the court shall, by an order, fix the
time and place for the h e a r i n g of the same, a n d cause
reasonable notice thereof to be given to the persons
named in the petition. T h e court shall also cause
the o r d e r to be p u b l i s h e d once a w e e k f o r three (3)
consecutive weeks in a n e w s p a p e r of g e n e r a l
circulation in the province.
Sec. 5. Opposition. — T h e civil r e g i s t r a r a n d any

person h a v i n g or claiming any interest u n d e r the
entry w h o s e cancellation or c o r r e c t i o n is s o u g h t
may, w i t h i n fifteen (15) d a y s f r o m notice of the
petition, or f r o m the last date of p u b l i c a t i o n of such
notice, file his opposition thereto.
Sec. 6. Expediting proceedings. — T h e c o u r t in

which the p r o c e e d i n g is b r o u g h t may m a k e o r d e r s
e x p e d i t i n g the p r o c e e d i n g s , a n d m a y a l s o g r a n t
preliminary injunction for the p r e s e r v a t i o n of the
rights of the parties p e n d i n g such p r o c e e d i n g s .
212
Sec. 7. Order. — A f t e r h e a r i n g , the court may

either dismiss the petition or issue an o r d e r granting
the cancellation or correction p r a y e d for. In either
case, a certified copy of the j u d g m e n t shall be served
u p o n the civil r e g i s t r a r c o n c e r n e d w h o shall
annotate the same in his r e c o r d .
NOTES
1. C A . 142, which regulates the use of aliases, was

amended by R . A . 6085, effective August 4,1969, to read as
follows:
" S E C T I O N 1. Except as a pseudonym solely for

literary, cinema, television, radio or other entertain-
ment purposes and in athletic events where the use of
pseudonym is a normally accepted practice, no person
shall use any name different from the one with which
he was registered at birth in the office of the local civil
registry, or with which he was baptized for the first
t i m e , or in case of an alien, with which he was
registered in the bureau of immigration upon entry;
or such substitute name as may have been authorized
by a competent court: Provided, That persons, whose
births have not been registered in any local civil
registry and who have not been baptized, have one
year from the approval of this act within which to
register their names in the civil registry of their
residence. The name shall comprise the patronymic
name and one or two surnames.
X X X
SEC. 3. No person having been baptized with a

name different from that with which he was registered
at birth in the local civil registry, or in case of an alien,
registered in the bureau of immigration upon entry,
or any person who obtained judicial authority to use
an alias, or who uses a pseudonym, shall represent
213
himself in any public or private transaction or shall

sign or execute any public or private document without
stating or affixing his real or original name and all
names or aliases or pseudonym he is or may have been
authorized to use.
X X X
SEC. 5. A n y v i o l a t i o n of this A c t shall be

punished with imprisonment of from one year to five
years and a fine of F5,000 to PIO.OOO."
2. Under ED. 651, dated January 31, 1975, all births

and deaths occurring in the Philippines starting from
January 1, 1974 and thereafter w e r e r e q u i r e d to be
registered in the office of the local civil registrar of the
place of birth or death, with penalties for failure to report
or register the fact thereof, or for deliberately making false
statements in the forms provided therefor, consisting of a
fine of P500 to Pl.OOO and/or imprisonment of three to six
months.
214
R U L E 109
APPEALS IN SPECIAL PROCEEDINGS
Section 1. Orders or judgments from which appeals

may be taken. — An interested p e r s o n may appeal in
special proceedings from an o r d e r or judgment
r e n d e r e d by a C o u r t of First Instance or a Juvenile
a n d Domestic Relations C o u r t , w h e r e such o r d e r or
judgment:
( a ) A l l o w s or disallows a will;
( b ) D e t e r m i n e s w h o a r e the l a w f u l heirs of a
d e c e a s e d p e r s o n , or the distributive s h a r e of the
estate to w h i c h such p e r s o n is entitled;
( c ) A l l o w s or disallows, in w h o l e or in part, any
claim against the estate of a deceased person, or any
claim presented on b e h a l f of the estate in offset to a
claim against it;
( d ) Settles the account of an executor, adminis-
trator, trustee or g u a r d i a n ;
( e ) Constitutes, in proceedings relating to the
settlement of the estate of a deceased person, or the
a d m i n i s t r a t i o n of a trustee or g u a r d i a n , a final
determination in the l o w e r court of the rights of the
p a r t y a p p e a l i n g , except that no a p p e a l shall be
a l l o w e d f r o m the a p p o i n t m e n t of a special
administrator; and
(f) Is the final o r d e r or judgment rendered in
the case, and affects the substantial rights of the
person appealing unless it be an order granting or
denying a motion for a n e w trial or for reconsidera-
tion.
Sec. 2. Advance distribution in special proceedings.

— Notwithstanding a pending controversy or appeal
in proceedings to settle the estate of a decedent, the

court may, in its discretion and upon such terms as
it may deem p r o p e r and just, permit that such part
of the estate as may not be a f f e c t e d by the
controversy o r a p p e a l b e d i s t r i b u t e d a m o n g the
heirs or legatees, upon compliance w i t h the
conditions set forth in Rule 90 of these rules.
NOTES
1. While under the concept in ordinary civil actions

some of the orders stated in Sec. 1 may be considered
interlocutory, the nature of special proceedings declares
them as appealable orders, as exceptions to the provisions
of Sec. 2, Rule 41 (see Dais us. Garduizo, etc., et al., 49
Phil. 165).
2. See also Note 3 under Sec. 14, Rule 86, regarding

appeals in special proceedings under B.P Big. 129. Since
under this Rule multiple appeals from and involving the
orders stated therein are contemplated, appeals in special
proceedings necessitate a record on appeal as the original
record should remain with the trial court, hence the
r e g l e m e n t a r y period of 30 days is p r o v i d e d for the
perfection of appeals in special proceedings.
216

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II.

A. THE JUDICIARY REORGANIZATION ACT

1. Before B.P Big. 129 became operationally effective,

trial court can appoint a guardian ad litem for an

4. Under the Judiciary Act, the writ of habeas corpus

granted to any metropolitan, municipal, or municipal

5. R . A . 5967, Sec. 3 ( a ) and ( b ) , conferred on the

6. As stated in the earlier part of this work, the former

7. On Oct. 28, 1997, Congress enacted R.A. 8369, the

8. In special proceedings, publication of judicial

SUBJECT MATTER AND APPLICABILITY

Section 1. Subject matter of special proceedings. —

1. As distinguished from actions, a special proceeding

by the particular rule or law.

3. While paragraph ( m ) speaks of declaration of

Sec. 2. Applicability of rules of civil actions. — In

1. There are certain specific provisions for special

required to be contained in the pleadings, venue and service

2. T h e distinction between final and interlocutory

VENUE AND PROCESS

Section 1. Where estate of deceased persons settled.

Sec. 2. Where estate settled upon dissolution of

1. T h e residence of the decedent at the time of his

2. It is only where the decedent was a nonresident

3. T h e question of residence is determinative only

probate court, the petition should be dismissed and the

6. The probate court acquires jurisdiction over the

Ji^-Upon the death of a spouse, no action can be

to determine the title to said property (Falcatan vs.

Although, generally, a probate court may not decide a

Thus, where an action has been filed by strangers

11. T h e probate court has the power to determine

12. T h e probate court has no jurisdiction to rule on

13. The probate court generally can not issue writs of

Sec. 3. Process. — In the e x e r c i s e of p r o b a t e

Sec. 4. Presumption of death. — F o r p u r p o s e s of

1. U n d e r the C i v i l C o d e , the absentee shall be

2. A r t . 392 of the Civil Code provides as follows:

3. Taken conjointly with said A r t . 392 of the Civil

SUMMARY SETTLEMENT OF ESTATES

Section 1. Extrajudicial settlement by agreement

settlement shall b e b i n d i n g u p o n any person w h o

1. This Rule actually provides for two exceptions to

2. The salient distinctions between these two methods

3. The requisites of a valid extrajudicial settlement

4. Extrajudicial settlement presupposes concurrence

5. Where the case is proper for extrajudicial settle-

partition and the claims of the heirs may be properly

6. The present Rules require a public instrument for

7. While the Rule provides that the decedent must not

8. A bond is required only when personalty is involved

9. The minor distributee in an extrajudicial settlement

Sec. 2. Summary settlement of estates of small value.

m a d e o r r e n d e r e d i n the c o u r s e thereof shall b e

Sec. 3. Bond to be filed by distributees. — T h e court,

1. In view of the amendments under B.P. Big. 129, the

3. Although, as a rule, the probate court cannot pass

Sec. 4. Liability of distributees and estate. — If it

Sec. 5. Period for claim of minor or incapacitated

1. T h e two-year lien upon the real property distri-

2. T h e discovery of unpaid debts after the extraju-

3. Where the estate has been summarily settled, the

4. An extrajudicial settlement, despite the publication