RULE 98
TRUSTEES CONSTITUTION OF FAMILY HOME
Trust is a confidence reposed in one person
called the trustee for the benefit of another
person called the cestui que trust, with respect
to the property held by the former for the
benefit of the latter.
Express Trust is one created by the direct and
positive acts of the parties, by some writing,
deed or will, or by the words evidencing an
intention to create a trust.
Implied Trust is one which, without being
express, is deducible from the nature of the
transaction as a matter of intent, or which are
super induced on the transaction by operation of
law as matters of equity, independent of the
particular intention of the parties.
Note: Rule 98 only applies to express trust.
When trust is necessary:
a) To carry into effect a will where the
testator omitted appointing a trustee in
the Philippines; and
b) To carry into effect other written
instruments where the trustee declines,
resigns, dies or is removed before the
accomplishment of trust.
Note: A trustee cannot buy property held in
trust by him, whether by purchase, even in
public judicial action, either in person or through
the mediation of another.
Note: A trustee cannot acquire property by
prescription.
General Rule: An action to compel a trustee to
convey property registered in his name in trust
for benefit of the cestui que trust does not
prescribe. The trustee’s possession is not
adverse, therefore, cannot ripen into a title by
possession.
Exception: In case of adverse possession of the
property, prescription may arise.
Requisites to constitute adverse possession.
(1) The trustee has performed unequivocal
acts of repudiation amounting to the
ouster of the cestui que trust;
(2) That such positive acts of repudiation
have been known to the cestui que trust;
and
(3) That the evidence thereon should be
clear and conclusive.
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RULE 106
The family home constituted by husband and
wife, or an unmarried head of the family, is the
dwelling house where they and their family
resides, and the land on which it is situated.
When deemed constituted. – It is automatically
constituted from the time of its occupation as a
family residence, without need for the judicial or
extrajudicial constitution of the same.
Exemption of family home from execution. –
Family home shall be exempt from execution,
forced sale, and attachment, as a general rule.
Exceptions:
(1) Non-payment of taxes;
(2) Debts incurred prior to the constitution
of the family home;
(3) Debts accrued by mortgages on the
premises before or after such
constitution; and
(4) Debts due to laborers, mechanics,
architects, builders, material men and
others who have rendered service or
furnished material for the construction
of the building.
Restrictions on partition of family home.
(1) 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 (10) years or for as long as
there is a minor beneficiary;
(2) The heirs cannot partition the same
unless the court finds compelling
reasons therein.
Note: This rule shall apply regardless of whoever
owns the property or constituted the family
home.
A family house cannot be established on
property held in co-ownership with third
persons. The family home must be established
on the properties of the:
(1) absolute community; or
(2) conjugal partnership; or
(3) exclusive property of either spouse with
the consent of the other.
Summary of Rules on Constitution of Family
Homes for Purposes of Exemption from
Execution
First. Family residences constructed before 3
April 1988 must be constituted as a family home
either judicially or extra judicially in order to be
exempt from execution;
Second. Family residences constructed after the
effectivity of the Family Code on 3 August 1988
are automatically deemed to be family homes,
and thus exempt from execution from the time
it was constituted and lasts as along as any of its
beneficiaries actually reside therein; and
Third. Family residences which were not
judicially or extra-judicially constituted as family
home prior to the effectivity of the Family Code,
but were existing thereafter, are considered as
family homes by operation of law and are
prospectively entitled to benefits accorded to a
family home under the Family Code.
RULE 107
ABSENTEES
Who may be appointed as representative of the
absentee. – When a person disappears from his
domicile, his whereabouts being unknown, and
having not left an agent to administer his
property, or the power conferred upon the agent
has expired, any interested party, relative, or
friend, may petition the Regional Trial Court
where the absentee resided before his
disappearance for the appointment of a person
to represent him provisionally in all that may be
necessary.
Who may file a petition for declaration of
absence. – After a lapse of two (2) years from his
disappearance and without any news about the
absentee, or since the receipt of the last news,
or of five (5) years in case the absentee has left
a person in charge of the administration of his
property, the declaration of absence and
appointment of a trustee or administration may
be applied for by any of the following:
(1) The spouse present;
(2) The heirs instituted in the will, who may
present authenticated copy of the same;
(3) The relatives who would succeed by the
law of intestacy; and
(4) Those who have over the property of the
absentee some right subordinated to
the condition of his death.
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Note: In the appointment of a representative,
the spouse present shall be preferred when
there is no legal separation.
Exception: The court may appoint any
competent person, if:
(1) There is no spouse; or
(2) The spouse present is a minor.
Effectivity of judicial declaration of absence. –
The judicial declaration of absence shall not take
effect until six months after its publication in a
newspaper of general publication.
Termination of administration. – The
administration shall cease in any of the following
cases:
(1) The absentee appears personally or by
means of an agent;
(2) The death of the absentee is proved, and
the testate and intestate heirs appear;
(3) A third person appears showing by a
proper document that he has acquired
the absentee’s property by purchase or
other title.
Necessity of judicial declaration of the
presumptive death for purpose of remarriage. –
Marriage contracted by any person during the
subsistence of a previous marriage shall be null
and void, unless before the celebration of the
subsequent marriage, the prior spouse had been
declared presumptively dead.
Requisites for the declaration of presumptive
death.
(1) That the absent spouse had been
missing for four (4) consecutive years, or
two (2) years if the disappearance
occurred where there is danger of death;
(2) That the present spouse wishes to
remarry;
(3) That the present spouse has a well-
founded belief that the absentee is
dead; and
(4) That the present spouse files a summary
proceeding for the declaration of
presumptive death of the absentee.
Note: Burden of proof lies with the present
spouse.
Basis of well-founded belief that the absent
spouse is dead. – The belief of the present
spouse must be the result of proper and honest
to goodness inquiries and efforts to ascertain the
whereabouts of the absent spouse and whether
the absent spouse is still alive or is already dead.
Judgment in a petition for declaration of
presumptive death is IMMEDIATELY FINAL AND
EXECUTORY. Family Code provides that
judgment by the trial courts in summary
proceedings shall be immediately final and
executory, thus there is no reglementary period
within which to perfect an appeal.
However, an aggrieved party may file a petition
for certiorari to question abuse of discretion
amounting to lack of jurisdiction with the Court
of Appeals (observing doctrine of hierarchy of
courts).
RULE 105
JUDICIAL APPROVAL OF FILIATION
Voluntary recognition is an admission of the fact
of paternity or maternity by the presumed
parent, expressed in the form prescribed by the
Civil Code.
Its essence lies in the avowal of the parent that
the child is his; the formality is added to make
the admission incontestable, in view of the
consequences.
Compulsory recognition is sometimes also
called judicial recognition, to distinguish it from
that which is a purely voluntary act of the parent.
It is a recognition decreed by final judgment of a
competent court.
It is governed by Articles 283 and 284 setting
forth the cases in which the father or mother,
respectively, is obliged to recognize a natural
child, and Article 285 providing that generally,
the action for recognition of natural children
may be brought only during the lifetime of the
presumed parents.
Changes in the Judicial Approval of Voluntary
Recognition of Minors under the Family Code.
Article 172 of the Family Code provides that the
filiation of legitimate (and illegitimate) children
is established by any of the following:
(1) The record of birth appearing in a civil
register or a final judgment; or
(2) An admission of legitimate filiation in a
public document or a private
handwritten instrument and signed by
the parent concerned.
In the absence of the foregoing evidence, the
legitimate filiation shall be proved by:
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(1) The open and continuous possession of
the status of a legitimate child; or
(2) Any other means allowed by the Rules of
Court and special laws.
Note: Judicial approval of voluntary recognition
is required ONLY in these two (2) preceding
instances.
No further court action is required, if the due
recognition of an illegitimate child is in a record
of birth, or in a will, or in a statement before the
court of record, or in any authentic writing, for it
is itself a consummated act of acknowledgment
of a child.
Judicial approval for the efficacy of voluntary
recognition. – The matter of whether or not
judicial approval is needed for the efficacy of
voluntary recognition is dealt with in Article 281
of the Civil Code.
Article 281. A child who is of age cannot be
recognized without his consent.
When recognition of a minor does not take place
in a record of birth or in a will, judicial approval
shall be necessary.
A minor can in any case impugn the recognition
within four (4) years following the attainment of
his majority.
In other words, judicial approval is not needed if
a recognition is voluntarily made:
(1) Of a person who is of age, only his
consent being necessary; or
(2) Of a minor whose acknowledgment is
effected in a record of birth or in a will.
On the other hand, judicial approval is needed if
the recognition of the minor is effected, NOT
through a record of birth or in a will, but through
a statement in a court of record or an authentic
document. In any case, the individual recognized
can impugn the recognition within four years
following the attainment of his majority.
Illegitimate Child Using the Surname of the
Father.
General Rule: Illegitimate child shall use the
surname of the mother.
Exception: The illegitimate child may use the
surname of the father, as a consequence of the
Judicial Recognition of the paternity by the
father.
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.
A father may NOT petition the court to have his
illegitimate children use his surname. Article
176 gives illegitimate children the right to decide
if they want to use the surname of their father or
not, and neither the father nor the mother may
dictate the surname of their illegitimate
children.
RULE 101
HOSPITALIZATION OF INSANE PERSON
Insanity is a condition of the mind which is so
impaired in function or so deranged as to induce
a deviation from normal conduct on the person
so afflicted.
Application of the rule. The rule is applicable
only when the hospitalization of the insane
person is for the public welfare or for the welfare
of said person, who in the judgment of the
Director of Health, is insane, provided that the
one who has charge of him is opposed to such
confinement (Herrera. P. 462).
Hospitalization of Guardianship
Insane Person
For the protection of For the purpose of
protecting the protecting the person
community at large and the estate of the
and in the nature of insane (Herrera, p.
police regulations 463).
(Herrera, p. 463).
SECTION 1. VENUE.
PETITION FOR COMMITMENT
Venue: RTC of province where the person
alleged to be insane is found.
Who files: Director of Health with the assistance
of city or provincial prosecutor.
Requisites:
(1) Director of Health is of the opinion that
the commitment of the person alleged
to be insane is for public welfare or for
the welfare of said person;
(2) Such person or the one having charge of
him is opposed to his being taken to a
hospital or asylum.
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SECTION 2. ORDER FOR HEARING
(1) The court shall fix a date and place for
hearing where all concerned may appear
to contest the petition;
(2) Copies of the notice of hearing shall be
served upon:
a. The person alleged to be insane; and
b. The one having charge of him, or on
such of his relatives residing in the
province/city as the judge may
deem proper.
(3) The court shall order the sheriff to
produce the alleged insane person (if
possible) on the date of hearing;
(4) Upon satisfactory proof that the
commitment is necessary and that his
relatives are unable to take proper
custody and care of him, the court shall
order his commitment in a
hospital/asylum;
(5) The court shall make proper provisions
for the custody of the ward’s property
until a guardian is properly appointed.
Right of the insane person to notice and
hearing:
Ordinarily, the person whose liberty is sought to
be restrained is entitled by law to proper notice
to such proceeding and by force of statute other
persons may be entitled to notice. While it has
been held that want of notice does not render
the proceedings invalid and that the
commitment is not subject to collateral attack, it
has also been held that want of notice renders
the proceeding void or at least, is good ground
for vacating the order of commitment (Herrera,
p. 464).
SECTION 3. HEARING AND JUDGMENT
Burden of proof: In all actions and proceedings,
the burden of proving insanity is on the plaintiff
who alleges it; but where it is set up as an
affirmative defense, the burden of proving rests
on the defendant.
Estate of the insane person: Pending an appeal
from the judgment declaring a person to be
insane, the trial court has jurisdiction to order a
third party to appear and show cause why the
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).
SECTION 4. DISCHARGE OF INSANE

Director of Health may file this petition in the

RTC which ordered the commitment, when he is
of the opinion that the person is permanently or
temporarily cured or may be released without
danger.

The Health Secretary cannot order release

without the approval of the RTC. On the other
hand, the RTC cannot order release without
recommendation from the Health Secretary
(Chin Ah Foo v. Concepcion, G.R. No. L-33281,
March 31, 1930).

SECTION 5. ASSISTANCE OF FISCAL IN THE

PROCEEDING

It shall be the duty of the provincial fiscal or in

the City of Manila the fiscal of the city, to prepare
the petition for the Director of Health and
represent him in court in all proceedings arising
under the provisions of this rule.

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