Professional Documents
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Trust is a confidence reposed in one person The family home constituted by husband and
called the trustee for the benefit of another wife, or an unmarried head of the family, is the
person called the cestui que trust, with respect dwelling house where they and their family
to the property held by the former for the resides, and the land on which it is situated.
benefit of the latter.
When deemed constituted. – It is automatically
Express Trust is one created by the direct and constituted from the time of its occupation as a
positive acts of the parties, by some writing, family residence, without need for the judicial
deed or will, or by the words evidencing an or extrajudicial constitution of the same.
intention to create a trust.
Exemption of family home from execution. –
Implied Trust is one which, without being Family home shall be exempt from execution,
express, is deducible from the nature of the forced sale, and attachment, as a general rule.
transaction as a matter of intent, or which are
super induced on the transaction by operation Exceptions:
of law as matters of equity, independent of the
particular intention of the parties. (1) Non-payment of taxes;
Note: Rule 98 only applies to express trust. (2) Debts incurred prior to the constitution
of the family home;
When trust is necessary:
(3) Debts accrued by mortgages on the
a) To carry into effect a will where the premises before or after such
testator omitted appointing a trustee in constitution; and
the Philippines; and
b) To carry into effect other written (4) Debts due to laborers, mechanics,
instruments where the trustee declines, architects, builders, material men and
resigns, dies or is removed before the others who have rendered service or
accomplishment of trust. furnished material for the construction
of the building.
Note: A trustee cannot buy property held in
trust by him, whether by purchase, even in Restrictions on partition of family home.
public judicial action, either in person or
through the mediation of another. (1) The family home shall continue despite
the death of one or both spouses or of
Note: A trustee cannot acquire property by the unmarried head of the family for a
prescription. period of ten (10) years or for as long as
there is a minor beneficiary;
General Rule: An action to compel a trustee to
convey property registered in his name in trust (2) The heirs cannot partition the same
for benefit of the cestui que trust does not unless the court finds compelling
prescribe. The trustee’s possession is not reasons therein.
adverse, therefore, cannot ripen into a title by
possession. Note: This rule shall apply regardless of
whoever owns the property or constituted the
Exception: In case of adverse possession of the family home.
property, prescription may arise.
A family house cannot be established on
Requisites to constitute adverse possession. property held in co-ownership with third
persons. The family home must be established
(1) The trustee has performed unequivocal on the properties of the:
acts of repudiation amounting to the
ouster of the cestui que trust; (1) absolute community; or
(2) That such positive acts of repudiation (2) conjugal partnership; or
have been known to the cestui que (3) exclusive property of either spouse with
trust; and the consent of the other.
(3) That the evidence thereon should be
clear and conclusive.
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Summary of Rules on Constitution of Family
Homes for Purposes of Exemption from Note: In the appointment of a representative,
Execution the spouse present shall be preferred when
there is no legal separation.
First. Family residences constructed before 3
April 1988 must be constituted as a family home Exception: The court may appoint any
either judicially or extra judicially in order to be competent person, if:
exempt from execution;
(1) There is no spouse; or
Second. Family residences constructed after the (2) The spouse present is a minor.
effectivity of the Family Code on 3 August 1988
are automatically deemed to be family homes, Effectivity of judicial declaration of absence. –
and thus exempt from execution from the time The judicial declaration of absence shall not
it was constituted and lasts as along as any of its take effect until six months after its publication
beneficiaries actually reside therein; and in a newspaper of general publication.
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spouse must be the result of proper and honest
to goodness inquiries and efforts to ascertain In the absence of the foregoing evidence, the
the whereabouts of the absent spouse and legitimate filiation shall be proved by:
whether the absent spouse is still alive or is (1) The open and continuous possession of
already dead. the status of a legitimate child; or
(2) Any other means allowed by the Rules
Judgment in a petition for declaration of of Court and special laws.
presumptive death is IMMEDIATELY FINAL AND
EXECUTORY. Family Code provides that Note: Judicial approval of voluntary recognition
judgment by the trial courts in summary is required ONLY in these two (2) preceding
proceedings shall be immediately final and instances.
executory, thus there is no reglementary period
within which to perfect an appeal. No further court action is required, if the due
recognition of an illegitimate child is in a record
However, an aggrieved party may file a petition of birth, or in a will, or in a statement before the
for certiorari to question abuse of discretion court of record, or in any authentic writing, for
amounting to lack of jurisdiction with the Court it is itself a consummated act of
of Appeals (observing doctrine of hierarchy of acknowledgment of a child.
courts).
Judicial approval for the efficacy of voluntary
recognition. – The matter of whether or not
RULE 105 judicial approval is needed for the efficacy of
JUDICIAL APPROVAL OF FILIATION voluntary recognition is dealt with in Article 281
of the Civil Code.
Voluntary recognition is an admission of the
fact of paternity or maternity by the presumed Article 281. A child who is of age cannot be
parent, expressed in the form prescribed by the recognized without his consent.
Civil Code.
When recognition of a minor does not take
Its essence lies in the avowal of the parent that place in a record of birth or in a will, judicial
the child is his; the formality is added to make approval shall be necessary.
the admission incontestable, in view of the
consequences. A minor can in any case impugn the recognition
within four (4) years following the attainment of
Compulsory recognition is sometimes also his majority.
called judicial recognition, to distinguish it from
that which is a purely voluntary act of the In other words, judicial approval is not needed if
parent. It is a recognition decreed by final a recognition is voluntarily made:
judgment of a competent court.
(1) Of a person who is of age, only his
It is governed by Articles 283 and 284 setting consent being necessary; or
forth the cases in which the father or mother, (2) Of a minor whose acknowledgment is
respectively, is obliged to recognize a natural effected in a record of birth or in a will.
child, and Article 285 providing that generally,
the action for recognition of natural children On the other hand, judicial approval is needed if
may be brought only during the lifetime of the the recognition of the minor is effected, NOT
presumed parents. through a record of birth or in a will, but
through a statement in a court of record or an
Changes in the Judicial Approval of Voluntary authentic document. In any case, the individual
Recognition of Minors under the Family Code. recognized can impugn the recognition within
four years following the attainment of his
Article 172 of the Family Code provides that the majority.
filiation of legitimate (and illegitimate) children
is established by any of the following: Illegitimate Child Using the Surname of the
Father.
(1) The record of birth appearing in a civil
register or a final judgment; or General Rule: Illegitimate child shall use the
(2) An admission of legitimate filiation in a surname of the mother.
public document or a private
handwritten instrument and signed by Exception: The illegitimate child may use the
the parent concerned. surname of the father, as a consequence of the
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Judicial Recognition of the paternity by the (2) Such person or the one having charge of
father. him is opposed to his being taken to a
hospital or asylum.
Note: The illegitimate children have the option
whether to continue to use the surname of the
mother of change it to the surname of the
father. SECTION 2. ORDER FOR HEARING
A father may NOT petition the court to have his (1) The court shall fix a date and place for
illegitimate children use his surname. Article hearing where all concerned may
176 gives illegitimate children the right to appear to contest the petition;
decide if they want to use the surname of their (2) Copies of the notice of hearing shall be
father or not, and neither the father nor the served upon:
mother may dictate the surname of their
illegitimate children. a. The person alleged to be insane;
and
b. The one having charge of him, or on
RULE 101 such of his relatives residing in the
HOSPITALIZATION OF INSANE PERSON province/city as the judge may
deem proper.
Insanity is a condition of the mind which is so
impaired in function or so deranged as to (3) The court shall order the sheriff to
induce a deviation from normal conduct on the produce the alleged insane person (if
person so afflicted. possible) on the date of hearing;
(4) Upon satisfactory proof that the
Application of the rule. The rule is applicable commitment is necessary and that his
only when the hospitalization of the insane relatives are unable to take proper
person is for the public welfare or for the custody and care of him, the court shall
welfare of said person, who in the judgment of order his commitment in a
the Director of Health, is insane, provided that hospital/asylum;
the one who has charge of him is opposed to (5) The court shall make proper provisions
such confinement (Herrera. P. 462). for the custody of the ward’s property
until a guardian is properly appointed.
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property of the insane should not be delivered
to the guardian. It is the duty of the court to
protect the property of the insane pending the
appeal (Mercader v. Wislizenus, G.R. No. L-
11739, August 25, 1916).
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