SPECIAL PROCEEDINGS

General Provision RULE 72: SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
A. Definition of Special Proceeding Vda. De Manalo v. CA In the determination of the nature of an action or proceeding, the averments and the character of the relief sought in the complaint or petition shall be controlling. The term suit refers to an action by one person or persons against another or others in a court of justice in which the plaintiff pursues the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity. A petition for issuance of letters of administration, settlement and distribution of estate is a special proceeding is a remedy whereby the petitioners therein seek to establish a status, a right or a particular fact. Natcher v. CA There lies a marked distinction between an action and a special proceeding. o An action is a formal demand of ones right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. o The term special proceeding may be defined as an application or proceeding to establish the status or right of a party or a particular fact. Usually in special proceedings, no formal pleadings are required unless the statute expressly so provides. In special proceedings, the remedy is granted generally upon an application or motion.

B. Applicability of Rules of Civil Actions Matute v. CA In the absence of special provisions the rules provided for in ordinary civil actions shall be, as far as practicable, applicable in special proceedings. o In this case rule 35 (demurrer to evidence) was applied.

SETTLEMENT OF ESTATE OF DECEASED PERSONS (73-91) RULE 73: VENUE AND PROCESS
Pereira v. CA Inasmuch as this court (SC) is not a trier of facts, we cannot order an unqualified and final exclusion or non-exclusion of the property involved from the estate of the deceased. The trial court is in the best position to receive evidence on the discordant contentions of the parties as to the assets of the decedents estate, the valuations thereof, and the rights of the transferees of some of the assets, if any.

SPECIAL PROCEEDINGS

Garcia Fule v. CA The place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. It is merely constitutive of venue. The revised rules of court properly considers the province where the estates of a deceased person shall be settled as venue. o The term resides connotes ex vi termini actual residence as distinguished from legal residence or domicile. o Resides should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat Cuenco v. CA The rule on venue does not state that the court whom the testate or intestate petition is first filed acquires exclusive jurisdiction. The court with whom the petition is first filed must also first take cognizance of the settlement of the estate in order to exercise jurisdiction over it to the exclusion of all other courts. o Conversely, such court, may upon learning that a petition for probate of decedents last will has been presented in another court where the decedent obviously had his conjugal domicile and resided with his surviving widow and their minor children, and that allegation of the intestate petition before it stating that the decedent died intestate may actually be false, may decline to take cognizance of the petition and hold petition before it in abeyance, and instead defer to the second court which has before it the petition for probate of the decedents alleged last will. Manzanero v. CFI Batangas The jurisdiction assumed by a court for the settlement of the estate so far as it depends on the place of residence of a person or of the location of his estate, cannot be contested in suit or proceeding except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. Eusebio v. Eusebio If proceedings for the settlement of the estate of a deceased resident are instituted in two or more courts and the question of venue is raised before the same, the court in which the first case was filed shall have exclusive jurisdiction to decide said issue. o Should it be decided in the proceedings before the said court that venue had been improperly laid, the case pending therein should be dismissed and the corresponding proceedings may thereafter be initiated in the proper court.

RULE 74: SUMMARY SETTLEMENT OF ESTATES

Arcillas v. Montejo 74.1 does not preclude the heirs from instituting administration proceedings even if the estate has no debts or obligation, if they do not desire to resort for good reason to an ordinary action of partition.

SPECIAL PROCEEDINGS
o

While it allows the heirs to divide the state among themselves as they may see fit or to resort to an ordinary action of partition, it does not compel them to do so if they have good reasons to take a different course of action. Said section is not mandatory or compulsory as may be gleaned from the use made therein of the word may.

De Garces v. Broce 74.1 contains no express or clear declaration that the required public instrument is to be constitutive of a contract of partition or an inherent element of its effectiveness as between the parties. Hence, such unregistered partition or settlement is valid among the heirs. The requirement that a partition be put in a public document and registered has for its purpose the protection of creditors and at the same time the protection of the heirs themselves against tardy claims. o The object of registration is to serve as constructive notice and this means notice to others. o It must follow that the intrinsic validity of a partition executed with the formalities does not come into play when there are no creditors or the rights of the creditors are not affected. No right of creditors being involved it is competent for heirs of an estate to enter into an agreement for distribution in a manner and upon a plan different from those provided by law. McMicking v. Sy Conbeing While at any time within two year after such partition the property, or a portion thereof, then in possession of the partitioning parties may be placed again in administration in the event of the discovery of unpaid debts within 2 years after such settlement and distribution of the estate, it would not be the same estate represented by the prior administrator, and he would not be the administrator of the new estate by virtue of his appointment in the old. It would be necessary to appoint, upon proper application and notice, another administrator. Before the administration after partition contemplated by said sections is proper or permissible, it is necessary that the requisite conditions be present; the unpaid debt must be discovered and the creditor must make his application. Without these conditions an administrator cannot be appointed under said sections. The partition provided for in these sections is binding and valid even though not all of the debts actually outstanding were paid before the partition was made. The discovery of an unpaid obligation after partition does not destroy the partition. It simply furnishes ground for the application of the creditor for the appointment of an administrator. Lajom v. Viola A judicial partition in probate proceedings does not bind the heir who were not parties thereto. No partition, judicial or extrajudicial, could add one iota or particle to the interest which the partitioners had during the joint possession. Partition is of the nature of a conveyance of ownership, and certainly none of the co-owners may convey to the others more than his own true right. A judicial partition in probate proceedings is not final and conclusive, and not being of such definitive character as to stop all means of redress for a co-heir who has been deprived of his lawful share, such co-heir may still, within the prescriptive period, bring an action for reinvidication in the province where any of the real property of the deceased may be situated.

SPECIAL PROCEEDINGS

Jerez v. Nietes A party interested in a probate proceeding who has been left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to his negligence, may have a final liquidation set aside and reopened by proper motion of intervention within the reglementary period, instead of an independent action in another court or judge. A motion for intervention to reopen a final liquidation in a probate proceeding must allege the interest of the movant. There must also be proof beyond allegations in such motion to show the interest of the movant. In the absence thereof, the court cannot allow the intervention and reopen the proceedings and reconsider the approval of the project of partition and final accounting. Gerona v. De Guzman Although as a general rule, as action for partition among co-heirs does not prescribe, this is true only as long as the defendants do not hold the property in question under an adverse title. The statute of limitations operates, as in other cases, from the moment such adverse title is asserted by the possessor of the property.

RULE 75: PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY

Palacios v. Catimbang Palacios Opposition to the intrinsic validity or legality of the provisions of the will cannot be entertained in probate proceedings because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law. After a will has been probated during the lifetime of a testator it does not necessarily mean that he cannot alter or revoke the same before his death. Should he make a new will, it would also be allowable on his petition, and if he should die before he had a chance to present such petition, the ordinary probate proceedings after the testators death would be in order. Guevarra v. Guevarra Reason and precedent reject the applicability of the statute of limitations to probate proceedings, because the same are established not exclusively in the interest of the heirs but primarily for the protection of the testators expressed wishes which are entitled to respect as a consequence of his ownership and right of disposition. o Inasmuch as the probate of wills is required by public policy, the State could not have intended to defeat the same by applying thereto the statute of limitations of action. Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with a will without first securing its allowance or probate by the court, first, because the law expressly provides that no will shall pass either real or personal estate unless it is proved and allowed in the proper court, and second because the probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial. Mercado v. Santos The probate of a will by the probate court having jurisdiction thereof, upon due notice, is conclusive as to its due execution against the whole world.

SPECIAL PROCEEDINGS

Conclusive presumptions are inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong. o The will in question having been probated by a competent court, the law in question will not admit any proof to overthrow the legal presumption that it is genuine and not a forgery. A criminal action will not lie in this jurisdiction against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction.

Manahan v. Manahan The appellant was not entitled to notification of the order admitting the will to probate, inasmuch as she was not an interested party, not having filed an opposition to the petition for the probate thereof. In the phraseology of the procedural law there is no essential difference between the authentication of a will and the probate thereof. The words authentication and probate are synonymous in this case. All the law requires is that the competent court declare that in the execution of the will the essential external formalities have been complied with and that, in view thereof, the document, as a will, is valid and effective in the eyes of the law. The decree admitting a will to probate is conclusive with respect to the due execution thereof and it cannot be impugned on ant of the grounds authorized by law, except that of a fraud, in any separate or independent action or proceeding. Fernandez v. Dimagiba A probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last will and testament, irrespective of whether its provisions are valid and enforceable or otherwise. As such, the probate order is final and appealable The presentation and probate of a will are requirements of public policy, being primarily designated to protect the testators expressed wishes, which are entitled to respect as a consequence of the decedents ownership and right of dispossession within legal limits. o It would not be a non sequitur to allow public policy to be evaded on the pretext of the estoppel. Whether or not the order overruling the allegation of estoppel is still appealable or not, the defense is patently unmeritorious. Reira v. Palmori The proceeding to probate a will is not a contentious litigation, and the judgment legalizing a will is not a judgment by default, even in those cases where no person appears to contest the probate of the will. While the probate of a will is conclusive as to compliance with all formal requisites necessary to the lawful execution of the will such probate does not affect the intrinsic validity of the provisions of the will. In re Johnson The fact that an heir or other interested party lives so far away as to make it impossible for such party to be present at the date appointed for the probate of the will does not render the order of probate void for lack of due process.

SPECIAL PROCEEDINGS

A court has authority upon timely application of any interested party to set aside the probate of a will and grant a rehearing, where a proper case for the exercise of this power is made to appear in the application. While the probate of a will is conclusive as to compliance with all formal requisite necessary to the lawful execution of the will, such probate does not affect the intrinsic validity of the provisions of the will.

US v. Chiu Guimco A court cannot make a valid order committing a person to jail for failure to produce the will of a deceased person except when acting in the exercise of its jurisdiction over the estates of deceased persons.

RULE 76: ALLOWANCE OR DISALLOWANCE OF WILL

A. Jurisdictional Requirements for Probate of Will Santos v. Castillo In order that the court may acquire jurisdiction over the case for the probate of a will and for the administration of the properties left by a deceased person, the application must allege, in addition to the residence of the deceased and other indispensable facts and circumstances, that the applicant is the executor named in the will or is the person who had the custody of the will to be probated. With the application the original of the will must be presented or sufficient reasons given to justify the non-presentation of said original and the acceptance of the copy or duplicate thereof. Rodriguez v. Borja The jurisdiction of the CFI vested upon the delivery thereto of the will. The use of the disjunctive words when a will is delivered to or a petition for the allowance of a will is filed plainly indicates that the court may act upon the mere deposit therein of a decedents testament, even if no petition for its allowance is not yet filed. o Where the petition for probate is made after the deposit of the will, the petition is deemed to relate back to the time when the will was delivered. Perez v. Perez The court acquires jurisdiction over all persons interested in the settlement of the estate of deceased persons through the publication of the petition in the newspapers. Service of notice on individual heirs or legatees or devisees is a matter of procedural convenience, not a jurisdictional requisite. o So much so that even if the names of some legatees or heirs had been omitted from the petition for allowance of the will and therefore were not advised the decree allowing the will does not ipso facto become void for want of jurisdiction. Basa v. Mercado The first publication of notice need not be made twenty-one days before the day appointed for the hearing.

SPECIAL PROCEEDINGS

The newspaper in question is a newspaper of general circulation in view of the fact that it is published for the dissemination of local news and general information; that it has a bona fide subscription list of paying subscribers; that it is published at regular intervals and that the trial court ordered the publication to be made in said paper precisely because it was a newspaper of general circulation in the province of Pampanga. o The law does not require that publication of the notice should be made in the newspaper with the largest number of subscribers. No fixed number of subscribers is necessary to constitute a newspaper of general circulation.

De Aranz v. Galing The requirement of the law for the allowance of will was not satisfied by mere publication of notice of hearing for 3 weeks in a newspaper of general circulation in the province. Individual notice upon heirs, legatees and devisees is necessary only when they are known or when their places of residence are known. o In other instances, such notice is not necessary and the court may acquire and exercise jurisdiction simply upon the publication of the notice in a newspaper of general circulation.

B. Scope of Inquiry in Proceeding to Probate a Will Maninang v. CA Normally the probate of a will does not look into its intrinsic validity. The authentication of a will deciedes no other question than such as touch upon the capacity of the testator and the compliance with those requisite or solemnities which the law describes for the validity of wills. o It does not determine nor even by implication prejudge the validity of the provisions, these may be impugned as being vicious or null, notwithstanding its authentication. Acain v. IAC Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do pass upon certain provisions of the will.

C. Proof Required on Probate Hearing Cabang v. Delfinado The attesting witnesses required by statute must be called to prove a contested will or a showing must be made that they cannot be had. Aldanese v. Salutillo When a will is contested the attesting witnesses must be called to prove the will or a showing must be made that they cannot be had, but that does not necessarily mean that they must be brought bodily before the court. It is their testimony which is needed and not their actual personal presence in the court room. o When an attesting witness to a will resides outside the province where the will is offered for probate and thirty miles or more from the place where the probate proceedings are held, his testimony may be taken in the form of a deposition.

SPECIAL PROCEEDINGS

Where depositions of subscribing witnesses to a will are taken, a photographic copy of the will may be presented to the witnesses on their examination and they may be asked the same questions with respect to said copy as if it were the original will and testimony as to the identity of the photographic copy shown to the witnesses is admissible in evidence.

Vda. De Ramos v. CA As a rule, if any or all of the subscribing witnesses testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. o Although subscribing witnesses to a contested will are the best witnesses in connection with its due execution, to deserve full credit, their testimony must be reasonable, and unbiased; if otherwise, it may be overcome by any competent evidence, direct or circumstantial. Gago v. Mamuyao The law does not require any evidence of the revocation or cancellation of a will to be preserved. o The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original will cannot be found. o Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. The presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. Gan v. Yap The case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof. The law regards the document itself as material proof of authenticity and as its own safeguard, since it could at any time, be demonstrated to be or not to be in the hands of the testator himself. In the probate of a holographic will it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. o If the will is contested at least three such witnesses shall be required. o In the absence of any such witness and if the court deem it necessary, expert testimony may be resorted to. Rodelas v. Aranza If the holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will.

SPECIAL PROCEEDINGS

But a photostatic copy or Xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator.

D. Binding Force of Trial Court Order Allowing or Disallowing a Will Manalo v. Paredes The proceeding for the probate of a will is a proceeding in rem and the court acquires jurisdiction over all the person interested through the publication of the notice as prescribed, and any order that may be entered is binding against all of them. o If any of them were not satisfied with the courts decision, they have the remedy of appeal to correct any injustice that might have been committed.

RULE 77: ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER
Suntay v. Suntay If a will is probated outside the country, the fact that such court is a probate court must be proved. Foreign countrys law on procedure in the probate or allowance of wills must also be proved. As well as the legal requirements for the execution of a valid will in that country. o In absence of proof of such countrys law on procedure, it may be presumed that the proceedings in the matter of probating or allowing a will in their courts are the same as those provided for in our laws on the subject. Leon & Ghezzie v. Manufacturers Life Ins. Co. The general rule universally recognized is that administration extends only to the assets of a decedent found within the state or country where it was granted, so that an administrator appointed in one state or country has no power over property in another state or country.

RULE 78: LETTERS TESTAMENTARY AND OF ADMINISTRATION; WHEN AND TO WHOM ISSUED
Ozaeta v. Pecson When a will has been admitted to probate, it is the duty of the probate court to issue letters testamentary to the person names as executor in the will upon the latters application, even if the order of probate is on appeal. o Mandamus lies to compel such appointment. o As the rights granted by will take effect from the time of the decedents death, the management of his estate by the administrator of his choice should be made as soon as practicable, when no reasonable objection to his assumption of the trust can be interposed. Ngo The Huan v. Chung Kiat Hua It was necessary for the lower court to determine the relationship of the parties to be able to appoint an administrator in accordance with the order of preference in 79.5.

SPECIAL PROCEEDINGS
o

10

What the court actually decided is the relationships between the deceased and the parties claiming the right to be appointed as administrator, to determine who among them is entitled to administration, not who are his heirs who are entitled to share in his estate, not a final determination of such relationships as basis for distribution.

Torres v. Javier The court had a right in view of the controversy between the women to name a disinterested third person as administrator and leave the controversy between them to be settled in the administration proceedings at the proper time. Torres v. Sicat In the selection of an administrator courts may exercise discretion and the person appearing in the order of preference may not be appointed where he appears to be unsuited for the trust. o But of course, the order of preference may be disregarded only when the reasons therefor are positive and clear. It is a sound juridical principle that the administrator should not adopt attitudes nor take steps inimical to the interests of the creditors. The administration of the intestate is undertaken for the benefit of both the heirs and creditors. o But by creditors we mean those declared to be so in appropriate proceedings. Before their credits are fully established they are not creditors within the purview of the above principle. So it is not improper for the administrator to oppose or to require competent proof of claims advanced against the estate. De Guzman v. Limcolioc The principal consideration reckoned with in the appointment of the administrator of the estate of a deceased person is the interest in said estate of the one to be appointed as such administrator. If under the circumstances of each case, it develops that there is another who has more interest therein than the surviving spouse, the preference established in the latters favour becomes untenable.

RULE 79: OPPOSING ISSUANCE OF LETTERS TESTAMENTARY; PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION
Duran v. Duran A legal heir who in a public instrument assigned and renounced his hereditary rights in favour of the decedents widow is not an interested party who can institute intestate proceedings and petition for the issuance of letters of administration. He has no more interest in the decedents estate. His petition should be dismissed.

SPECIAL PROCEEDINGS
RULE 80: SPECIAL ADMINISTRATOR A. Circumstances Warranting Appointment of Special Administrator

11

De Guzman v. Guadiz The basis for appointing a special administration under the Rule is broad enough to include any cause or reason for the delay in granting letters testamentary or of administration as where a contest as to the will is being carried on in the same or in another court, or where there is an appeal pending as to the proceeding on the removal of an executor or administrator or in cases where the parties cannot agree among themselves. o When from any cause general administration cannot be immediately granted, a special administrator may be appointed to collect and preserve the property of the deceased. The phrase by any cause includes those incidents which transpired in the instant case clearly showing that there is a dealt in the probate of the will and that the granting of letters testamentary will consequently be prolonged necessitating the immediate appointment of a special administrator. o The reason for the practice of appointing a special administrator rests in the fact that estates of decedents frequently become involved in protracted litigation thereby being exposed to great waste and losses if there is no authorized agent to collect the debts and preserve the assets in the interim. The occasion for such appointment usually arises where, for some cause, such as pendency of a suit concerning proof of the will, regular administration is delayed. o No temporary administration can be granted where there is an executor being capable of acting. When appointed, a special administrator is regarded, not as a representative or agent of the parties suggesting the appointment but as the administrator in charge of the estate and in fact as officer of the court. Relucio v. San Jose Where the order of the court appointing a new administrator in substitution of the original administrator is pending appeal, and in the absence of any order for the immediate execution of the order of substitution, the old administrator has the right to continue as such until the appeal is finally disposed of. The cases in which a special administrator may be appointed o (81.1) When there is delay in granting letter testamentary or of administration occasioned by an appeal from the allowance or disallowance of a will, or from any other cause, the court may appoint a special administrator to collect and take charge of the estate of the deceased and executors or administrators thereupon appointed. o (87.8) if the executor or administrator has a claim against the estate he represents, he shall give notice thereof in writing, to the court, and the courts shall appoint a special administrator who shall, in the adjustment if such claim, have the same power and subject to the same liability as the general administrator or executor in the settlement of other claims. The court may order executor or administrator to pay to the special administrator necessary funds to defend such claim. Alcasid v. Samson

SPECIAL PROCEEDINGS

12

The appointment and removal of a special administrator are interlocutory proceedings incidental to the main case, and lie in the sound discretion of the court. As the law does not say who shall be appointed as special administrator and the qualifications the appointee must have, the judge or the court has discretion in the selection of the person to be appointed, discretion which must be sound, that is, not whimsical or contrary to reason, justice or equity. o Provisions regarding administrators or executors do not apply to selection or removal of special administrators. The conditions of the estate justified the appointment and qualification of a regular administrator, because the special administration had lasted nearly two years, and prompt settlement of the estate has been unduly delayed.

De Guzman v. Angeles Probate court may not appoint a special administratix and issue a writ of possession of alleged properties of a decedent for the preservation of the estate in a petition for settlement of the intestate estate of said deceased before the probate court causes notice to be served upon all interested parties. o A special administratix is defined as the representative of decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed. o Since the position of special administrator is a very sensitive one which requires trust and confidence, it is essential that the suitability of the applicant be ascertained in a hearing with due notice to all oppositors who may object precisely to the applicants suitability to the trust.

B. Who and How Many may be appointed as Special Administrator

Garcia Fule v. CA The discretion to appoint a special administrator or not lies in the probate court. o That is however no authority for the judge to become partial, or to make his personal likes and dislikes prevail over, or his passions to rule, his judgment. Exercise of that discretion must be based on reason, equity, justice and legal principle. There is no reason why the same fundamental and legal principles governing the choice of a regular administrator should not be take into account in the appointment of a special administration. o Nothing is wrong for the judge to consider the order of preference in the appointment of a regular administrator in appointing a special administrator. o After all, the consideration that overrides all others in this respect is the beneficial interest of the appointee in the estate of the decedent. The issuance of such appointment is but temporary and subsist only until a regular administrator is appointed, the appointing court does not determine who are entitled to share in the estate of the decedent but who is entitled to the administration. Pijuan v. Vda. De Guerrera It may not be amiss to note that the preference accorded by the Rules of Court to the surviving spouse refers to the appointment of a regular administrator or adminsitratix, not to that of a

SPECIAL PROCEEDINGS

13

special administrator and that the order appointing the latter lies with the discretion of the probate court, and is not appealable. Corona v. CA The executrixs choice of Special Administrator, considering her own inability to serve and the wide latitude of discretion given her by the testatrix in her will, is entitled to the highest consideration. o Objections to appointment on grounds of impracticability and lack of kinship are overshadowed by the fact that justice and equity demand that the side of the deceased wife and the faction of the surviving husband be represented in the management of the decedents estate. It is apropos to remind the Special Administrators that while they may have respective interests to protect they are officers of the court subject to the supervision and control of the probate court and are expected to work for the best interests of the entire estate, its smooth administration, and its earliest settlement. Ozaeta v. Pecson The appointment of special administrators is not governed by the rules governing appointment of regular administrators. There is no reason why the same fundamental and legal principles governing choice of a regular administrator should not be taken into account in the appointment of a special administrator. Matias v. Gonzales In the case at bar there is only one special administration, the powers of which shall be exercised jointly by two special administrators. In short the Roxas case is not squarely in point. o Deemed best to appoint more than one special administrator, justice and equity demands that both factions be represented in the management of the estate of the deceased. Roxas v. Pecson As the law does not say who shall be appointed as special administrator and the qualifications the appointee must have, the judge or the court has discretion in the selection of the person to be appointed, discretion which must be sound, that is, not whimsical or contrary to reason, justice or equity. As under the law only one general administrator may be appointed to administer, liquidate and distribute the estate of a deceased it clearly follows that only one special administrator may be appointed to administer temporarily said estate because a special administrator is but a temporary administrator who is appointed to act in lieu of the general administrator.

C. Powers and Liabilities of Special Administrator

Anderson v. Perkins It is true that the function of a special administrator is only to collect and preserve the property of the deceased until a regular administrator is appointed.

SPECIAL PROCEEDINGS

14

But it is not alone the specific property of the estate which is to be preserved but its value as well, as shown by the legal provision for the sale by a special administrator of perishable property. Special administrators power to sell is not limited to perishable property only.

Liwanag v. Reyes The Rules of Court do not expressly prohibit making the special administratix a defendant in a suit against the estate. Otherwise, creditors would find the adverse effects of the statute of limitations running against them in cases where the appointment of a regular administrator is delayed. o So that if we are now to deny the present action on this technical ground alone, and the appointment of a regular administrator will be delayed, the very purpose for which the mortgage was constituted will be defeated.

D. Removal of Special Administrator

Alcasid v. Samson The appointment and removal of a special administrator are interlocutory proceedings incidental to the main case, and lie in the sound discretion of the court. As the law does not say who shall be appointed as special administrator and the qualifications the appointee must have, the judge or the court has discretion in the selection of the person to be appointed, discretion which must be sound, that is, not whimsical or contrary to reason, justice or equity. o Provisions regarding administrators or executors do not apply to selection or removal of special administrators. The conditions of the estate justified the appointment and qualification of a regular administrator, because the special administration had lasted nearly two years, and prompt settlement of the estate has been unduly delayed. Junquera v. Borromeo While the Rules do not fix any period within which a special administrator is required to submit an inventory of the estate, it cannot be denied that such duty has to be performed within a reasonable period, if not as soon as practicable in order to preserve the estate and protect the heirs of the deceased. For only in that manner can the court satisfy the real purpose for which the office of a special administrator is provided for. o If such were not the case the court would be opening the door to the commission of irregularities or other mischiefs which may redound to the detriment of the estate and of the heirs entitled to its distribution. o It is for this reason that the law provides for his removal in case he fails to perform a duty expressly provided by these rules or becomes insane, or otherwise incapable or unsuitable to discharge the trust. The appointment and removal of a special administrator lies entirely in the sound discretion of the court. The sufficiency of any ground for removal should thus be determined by the court, whose sensibilities are, in the first place, affected by any act or omission on part of the administrator not conformable to or in disregard of the rules or orders of the court.

SPECIAL PROCEEDINGS
RULE 81: BONDS OF EXECUTORS AND ADMINISTRATORS

15

Cosme de Mendoza v. Pacheco Before an administrator, or an executor enters upon the execution of the trust, and letters testamentary or of administration are issued, the person to whom they are issued is required to give a bond in such reasonable sum as the court directs, with one or more sufficient sureties, conditioned upon the faithful performance of his trust. o The administrator is accountable on his bond along with the sureties for the performance of certain legal obligations. CFI exercising probate jurisdiction is empowered to require the filing of the administrators bond, to fix the amount thereof, and to hold it accountable for any breach of the administrators duty. It is true that the law does not say expressly or in so many words that such court has power to execute the bond of an administrator, but by necessary and logical implication, the power is there as eloquently as if it were phrased in unequivocal terms. o When the accountability of an administrators bond is spoken of in the very provisions dealing with and bearing directly on the administration proceedings, it would involve a strained construction to hold, as appellants would have us do that where an administrator is held liable for a devastavit for having squandered and misapplied property which he was duty bound to marshal and conserve , the estate is without a remedy to go against the administrators bond in the same probate proceedings, but in an action outside of and separate from it. Warner, Barnes & Co., Ltd. v. Luzon Surety Co., Inc. Although the probate court has jurisdiction over the forfeiture or enforcement of an administrators bond, the same matter may be litigated in an ordinary civil action brought before the CFI. Although an administrators bond is executed in favour of the RP, as it is expressly for the benefit of the heirs, legatees and creditors, a creditor may directly in his name enforce said bond in so far as he is concerned. Where there are no proceedings for the administration of the estate of the deceased administrator, the creditor may enforce his bond against the surety which bound itself jointly and severally in the case where the bond was filed. Luzon Surety Co., Inc. v. Quebrar The conditions prescribed by the statute requiring the giving of bonds form part of the bond agreement. The surety is liable on the bond for as long as the estates administrator has duties to do. The liability of the sureties is coextensive with that of the administrator and embraces the performance of every duty he is called upon to perform in the course of administration. Administrators bond does not cease to be effective with the courts approval of the project of partition and statement of accounts. o Administration is for the purpose of liquidiation of the estate and distribution of the residue among the heirs and legatees. And liquidation means the determination of all the assets of the estate and payment of all debts and expenses.

SPECIAL PROCEEDINGS

16

Sureties of an administration bond are liable only as a rule, for matters occurring during the term covered by the bond. Term of the bond does not usually expire until the administration has been closed and terminated in the manner directed by law. o Thus, as long as the probate court retains jurisdiction of the state, the bond contemplates a continuing liability notwithstanding the nonrenewal of the bond by the defendant appellants. o The probate court possesses an all-embracing power over the administrators bond and over the administration proceedings and it cannot be devoid of legal authority to execute and make that bond answerable for the very purpose for which it was filed. An administrators bond and indemnity agreement does not cease to be effective by the nonpayment of premiums. Payment of premiums and documentary stamps not conditions precedent to effectivity of administrators bonds. Surety company can enforce the payment of premium as consideration for the bond and as condition for its effectivity.

RULE 82: REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORS
Borromeo v. Borromeo Conflict between the interest of the executor and the interest of the deceased is ground for removal or resignation of the former who was thereby become unsuitable to discharge the trust. o A mere hostile feeling towards persons interested in the estate is not ground for removal unless it prevents the management of the estate according to the dictates of prudence. An appellate court is disinclined to interfere with the action taken by the probate court in the matter of the removal of an executor or administrator unless positive error or gross abuse of discretion is shown.

RULE 83: INVENTORY AND APPRAISAL. PROVISION FOR SUPPORT OF FAMILY

Garcia v. Garcia A court which takes cognizance of testate or intestate proceedings has power and jurisdiction or determine whether or not the properties included therein or excluded therefrom belong prima facie to the deceased, although such a determination is not final or ultimate in nature, and without prejudice to the right of the interested parties, in a proper action, to raise the question bearing on the ownership or existence of the right or credit. Cuizon v. Ramolete It is a well settled rule that a probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties. o All that the said court do as regards said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator.

SPECIAL PROCEEDINGS
o

17

If there is no dispute, well and good, but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so.

Guinguing v. Abuton The inclusion of a property in the inventory does not deprive the occupant of possession and if it is finally determined that the property has been properly included in the estate, the occupant heir is liable for the fruits and interest only from the date when succession was opened. o Provisions of the civil code with reference to collation clearly contemplate that disputes between heirs with respect to the obligation to collate may be determined in the course of the administration proceedings. Sebial v. Sebial The 3-month period in 83.1 is not mandatory. The fact that an inventory was filed after the 3month period would not deprive the probate court of jurisdiction to approve it. o However, an administrators unexplained delay in filing the inventory may be a ground for his removal. The general rule is that questions of title to property cannot be passed upon in a testate or intestate proceeding. However, when the parties are all heirs of the decedent, it is optional upon them to submit to the probate court the question of title to property and when so submitted the probate court may definitely pass judgment thereon. The rule is that matters affecting property under administration may be taken cognizance of by the probate court in the course of the intestate proceedings provided that the interests of third persons are not prejudiced. Pio Barreto Realty Development, Inc. v. CA The probate court may provisionally pass upon the question of exclusion not should. The obvious reason is the probate courts limited jurisdiction and the principle that questions of title or ownership which result to inclusion in or exclusion from the inventory of the property, can only be settled in a separate action. The probate court has ample discretion in determining whether conditions of a particular sale would be beneficial to the estate and this is generally respected by the appellate courts. o To attack the nullity of the order of the probate court to sell property of the deceased it must be shown that the contract of sale is null and void. Though an order of the probate court approving the sale of the decedents property is final, the respondent may file a complaint in the proper court for rescission of the sale. o The initial question regarding the propriety of including the properties in question in the inventory of the probate court as he claims ownership thereof, may therein be finally and conclusively settled.

SPECIAL PROCEEDINGS
RULE 84: GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS

18

Malahacan v. Ignacio The only ground upon which an administrator can demand of the heirs at law possession of the real estate of which his intestate died seized is that such land will be required to be sold to pay the debts of the deceased. San Diego v. Nombre A judicial administrator can validly lease property of the estate without prior judicial authority and approval. o Lease has been considered an act of administration While it may be admitted that the duties of a judicial administrator and an agent are in some respects identical, the provisions on agency (1878) should not apply to a judicial administrator. Jaroda v. Cusim The special administrator is without power to make the waiver or to hand over part of the estate or what appears to be prima facie part of the estate to other persons on the ground that the estate is not the owner thereof. o If even to sell for valuable consideration property of the estate requires prior written notice of the application to the heirs, legatees, or devisees, such notice is equally if not more indispensable for disposing gratuitously of assets of the decedent in favour of strangers. An administrator is not permitted to deal with himself as an individual in any transaction concerning trust property. o The law for wise reasons will not permit one who acts in a fiduciary capacity thus to deal with himself in his individual capacity. A judicial administrator should be at all times subject to the orders of the appointing Tribunal and of no one else. Wilson v. Rear When appointed, it is the legal duty of the administrator to administer, settle, and close the administration in the ordinary course of business, without any unnecessary delay. Neither does an administrator, in particular, without a specific showing or an order of the court, have any legal right to continue the operation of the business in which the deceased was engaged or to eat up and absorb the assets of the estate in the payment of operating expenses. Fabie v. Yulo The law does not authorize an executor or administrator of the property of a deceased person to contract debts or establish obligations to the injury and prejudice of the deceaseds heirs, and in case he has so acted he alone will be responsible with his own property for the debts and obligations he has contracted. o In case of the death of an executor or administrator who has contracted debts, his own property, which he left at death, is directly liable for payment of such debts. The creditor may direct his action against said executor or administrators heirs, for until all the creditors of a deceased person have been paid there can be no net inheritance divisible among his heirs.

SPECIAL PROCEEDINGS

19

RULE 85: ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS

Joson v. Joson The duty of an administrator to render an account is not a mere incident of an administration proceeding which can be waived or disregarded when the same is terminated, but that it is a duty that has to be performed and duly acted upon by the court before the administration is finally ordered closed and terminated. Rodriguez v. Silva A greater sum may be allowed in any special case where the estate is large and the settlement has been attended with great difficulty, and has required a high degree of capacity on the part of the executor or administrator. o The amount of an executors fee allowed in any special case is a matter largely in the discretion of the probate court which will not be disturbed on appeal except for an abuse of discretion. Although being a lawyer is by itself not a factor in the assessment of an administrators fee, it should be otherwise when as in this case the administrator was able to stop what appeared to be an improvident disbursement of a substantial amount without having to employ outside legal help at an additional expense to the estate. Albino v. Borromeo The rule is that for attorneys fees for services rendered to an administrator to be chargeable against the estate such service must have been so rendered to assist him in the execution of his trust. o Even then, it has been held that the attorney cannot hold the estate directly liable for his fees; such fees are allowed to the executor or administrator and not to the attorney. o The liability for payment rests on the executor or administrator, but if the fees paid are beneficial to the estate and reasonable, he is entitled to reimbursement from the estate. Phil. Trust Co. v. Luzon Surety Co. A probate court is possessed with an all-embracing power not only in requiring but alos in fixing the amount, and executing or forfeiting an administrators bond. The execution or forfeiture of an administrators bond is deemed to be a necessary part and incident of the administration proceedings. From the nature of the obligation entered into by the surety on an administrators bond which makes him privy to the proceedings against his principal he is bound and concluded, in the absence of fraud or collusion, by a judgment against his principal even though said surety was not a party to the proceeding. o Sureties are not entitled to notice but may be allowed to intervene in the settlement of accounts of the executor or administrator if they ask for leave to do so in due time.

SPECIAL PROCEEDINGS
RULE 86: CLAIMS AGAINST ESTATE

20

Afan v. De Guzman Prior to the distribution of the estate of the deceased, on application of a creditor who has failed to file his claim within the time provided for, the court may allow such claim to be filed, subject to the following conditions: (1) there must be an application therefore, (2) a cause must be shown why the permission should be granted, and (3) the extension of time granted for the filing of the claim shall not exceed one month. Failure to file a claim within the time provided therefor upon the sole ground that the claimant was negotiating with one of the heirs for payment is not sufficient to justify extension. And where a claimant knew of the death of the decedent and for 4 or 5 months thereafter he did nothing to present his claim, this can hardly be considered as a good excuse for such neglect. Santos v. Manarang If the property of the estate has been properly inventoried, the committee on claims regularly appointed, the publication of the notice required by law duly made, and there has been no fraud in the proceedings, claims or debts which the law requires shall be presented to the committee on claims must be presented to it within the limitation of time provided or they will be barred. Directions in the testators will that such claims and debts or any of them shall be settled in some other manner are void as opposed to public policy at least where there are heirs by force of law. No action can be instituted directly against the administrator of the estate for the collection of claims and debts which the committee on claims is directed to pass on. Estate of Olave v. Reyes The purpose of presentation of claims against decedents of the estate in the probate court is to protect the estate of deceased persons. That way the executor or administrator will be able to examine each claim and determine whether it is a proper one which should be allowed. o Also to appraise the administrator and probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or by prorata portion in the due course of the administration (entire estate is burdened with payment of all debts, no creditor shall enjoy any preference or priority). The law is clear that where the estate of a deceased is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval from the probate court. Gutierrez v. Barretto-Datu The word claims is generally construed to mean debts or demands of a pecuniary nature which could have been enforced against the deceased in his lifetime and could have been reduced to simple money judgments; and among these are those founded on contract (including The only actions that may be instituted against the executor or administrator are those to recover real or personal property from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal. Aguas v Llemos

SPECIAL PROCEEDINGS

21

The actions that are abated by death are (1) claims for funeral expenses and those for the last sickness of the decedent (2) judgments for money and (3) all claims for money agains the decedent arising from contract express or implied. Actions that survive against a decedents executors or administrators (1) actions to recover real personal property from the estate (2) actions to enforce a lien thereon and (3) actions to recover damages for an injury to person or property. o Injury to property is not limited to injuries to specific property but extends to other wrongs by which personal estate is injured or diminished. o To maliciously cause a party to incur unnecessary expenses as charged in this case is certainly injurious to that partys property.

E. Gaskell & Co. v. Tan Sit When it happens that both bankruptcy proceedings and administration proceedings are simultaneously conducted over the estate of a deceased bankrupt, no claim can be proved against the administrator which is provable in bankruptcy. The proceeds of the insurance policy awarded to the administratix were not liable for any of the debts provable against deceased in the bankruptcy proceedings then pending. Imperial Ins. Co. v. David If husband and wife bound themselves jointly and severally, in case of his death her liability is independent and separate from her husbands. She may be sued for the whole debt and it would be error to hold that the claim against her as well as the claim against her husband should be made in the decedents estate. Bank of P.I. v. Concepcion & Hijos, Inc. A creditor holding a claim secured by mortgage or other collateral security against the estate of a decease person has the election of one out of three courses: (1) he may abandon his security and share in the general distribution of assets of the estate or (2) he may foreclose, secure a deficiency judgment and prove his deficiency judgment before the committee, or (3) he may rely upon his security alone, in which case he can receive no share in the distribution of the assets of the estate. In the foreclosure of a mortgage on property pertaining to the estate of a deceased person, the amount of the deficiency cannot be determined before the foreclosure sale is made, and the demand for its payment is a contingent claim. The claim for deficiency must be presented to the committee on claims and appraisals within the period fixed. If the court, from the report of the committee or from proofs exhibited to it is satisfied that the contingent claim is valid, the executor or administrator may be required to retain in his possession sufficient assets to pay the claim when it becomes absolute. Bayot v. Zurbito When a creditor of a deceased person whose estate is in course of administration presents a claim for allowance by the committee on claims, it is the duty of the executor or administrator to exhibit by way of offset any claim which may exist in favor of the creditor, and the committee will ascertain and allow the true balance in favour of either party. An executor or administrator not only has the right to continue the prosecution of an action already begun, but also to institute an action upon a cause which accrued in the lifetime of the

SPECIAL PROCEEDINGS

22

deceased but which had not been made the subject of action by him. This of course presupposed that the cause of action is such as to have survived the estate.

RULE 87: ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS

Lopez v. Garcia Lopez When the estate of a deceased person is brought into judicial administration every person having any of the property of the decedent in his hands is required to surrender it to the lawful executor or administrator and anyone who may have squandered assets of the estate or converted the same to his own use is liable to answer for the value thereof. The court in exercise of its probate authority has jurisdiction to require such administratix to account for her management of the estate during the time she acted as extrajudicial manager prior to her appointment as administratix. Pascual v. Pascual Actions for the recovery or protection of the property or rights of the deceased for causes which survive may be prosecuted or defended by his executor or administrator. Upon the commencement of the testate or intestate proceedings, the heirs have no standing in court in actions of the above character, except when the executor or administrator is unwilling or fails or refuses to act, in which even the heirs may act in his place. Velasquez v. George The general rule is that pending proceedings for settlement of estate, heirs have no right to commence an action arising out of rights which belong to the deceased which pertain to the administrator. o Exception is where the administrator had allegedly participated in the insidious machinations and conclusion to defraud the heirs. De la Cruz v. Camon When the demand is in favour of the administrator and the party against whom it is enforced is a third party, not under the courts jurisdiction, the demand cannot be by mere motion by the administrator but an independent action against the third person. Even matters affecting property under judicial administration may not be taken cognizance of by the court in the course of intestate proceedings if the interests of third persons are prejudiced. Modesto v. Modesto If an executor or administrator or any individual interested in the estate of the deceased complains to court having jurisdiction of the estate that a person or persons are suspected of having concealed, embezzled, or conveyed away any of the properties, real or personal, of the deceased, the court may cite such suspected person or persons to appear before it and may cite such suspected person or persons to appear before it and may examine him or them on oath on the matter of such complaint. o In such proceedings the trial court has no authority to decide whether or not said properties belong to the estate or to the persons examined.

SPECIAL PROCEEDINGS
o

23

If after such examination there is good reason to believe that said person or persons examined are keeping properties belonging to the estate, then the administrator should file an action in court to recover the same.

Leon & Ghezzi v. Manufacturers Life Ins. Co. Person entrusted with estate cannot be compelled to render account when the administratix did not entrust the money she wants the latter to account for, nor did the said money come to the appellees possession in trust for the administratix. In other words the administratix is a complete stranger to the subject of the motion and to the appellee. Heirs of Gregorie v. Baker Where an estate in administration appears to be insolvent, any creditor who believes that a conveyance of property executed in life by the decedent was made in fraud of creditors may, by leave of court, and upon giving bond to indemnify the executor or administrator against costs, commence an action in the name of the executor or administrator, and recover the property thus fraudulently conveyed away. The personal representative of a decedent is not under the peremptory duty of starting such action himself. Orders made by a court in reference to the inclusion of property in the inventory or the exclusion of items of property in the inventory or the exclusion of items therefrom are manifestly of a purely discretionary, provisional, and interlocutory nature and are subject to the modification or change at any time during the course of the administration proceedings. Valera v. Inserto The examination is merely to elicit evidence relevant to property of the decedent from persons suspected of having possession or knowledge thereof or of having concealed, embezzled or conveyed away the same. o Of course if the latter lays no claim to the property and manifests willingness to turn it over to the estate no difficulty arises, the probate court simply issues the appropriate direction for the delivery of the property. o On the other hand, if the third person asserts a right yto the property, contrary to the decedents the probate court would have no authority to resolve the issue a separate action must be instituted by the administrator to recover the property. Since determination by the probate court as to title of property was merely provisional, not binding on the property with any character of authority, definiteness or permanence, having been made only for purposes of inclusion in the inventory and upon evidence adduced at the hearing of a motion, it cannot and should not be subject of execution as against its possessor who has set up title in himself adversely to the decedent.

RULE 88: PAYMENT OF DEBTS OF THE ESTATE

Aldamiz v. Judge of CFI Mindoro The correct procedure for the collection of attorneys fees is for the counsel to request the administrator to make payment and file an action against him in his personal capacity and not as an administrator should he fail to pay. o If judgment is rendered against the administrator and he pays, he may include the fees so paid in his account to the court.

SPECIAL PROCEEDINGS

24

The attorney may also instead of bringing such an action file a petition in the testate or intestate proceeding asking that the court, after notice to all persons interested, allow his claim and direct the administrator to pay it as an expense of administration. A writ of execution is not the proper procedure allowed for the payment of debts and expenses of administration. The proper procedure is for the court to order the sale of personal estate or the sale or mortgage of real property of the deceased and all debts or expenses of administration should be paid out of the proceeds of the sale or mortgage. o The order for the sale or mortgage should be issued upon motion of the administrator and with the written notice to all the heirs, legatees and devisees residing in the Philippines. o Execution may only issue where the devisees, legatees or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of the debts and expenses of administration and it is later ascertained that there are such debts and expenses to be paid in which the court having jurisdiction, by order, after hearing, settle the amount of their several liabilities and order how much and in what manner each person shall contribute and may issue execution if circumstances require.

Buan v. Laya A contingent claim is one which by its nature is necessarily dependent upon an uncertain event for its existence or validity. It may or it may not develop into a valid enforceable claim, and its validity and enforceability depending upon an uncertain event. A contingent claim does not follow the temporary orders of dismissal of an action upon which it is based; it awaits the final outcome thereof and only said final result can cause its termination. o The rules provide that a contingent claim is to be presented in the administration proceedings in the same manner as an ordinary claim, and that when the contingency arises which converts the contingent claim into a valid claim, the court should be informed that the claim has already matured. Ignacio v. Elchico The probate court acted correctly in holding a hearing to determine the amount and the manner in which an heir, in possession of a portion of the decedents estate, should contribute for the payment of the creditors claims and taxes. The motion for the return of the said portion to the decedents estate is premature. Dinglasan v. Ang Chia The heirs of an estate may not demand the closing of an intestate proceeding at any time where there is a pending case against the administrator of the estate. The probate court can rightfully hold in abeyance the closing of the intestate proceedings until the civil case is settled. To hold otherwise would render the provisions of the rules of court of no practical value.

RULE 89: SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT

Godoy v. Orellano Under the law the court has exclusive jurisdiction to authorize the sale of properties, and the power of attorney executed by the heirs in favour of the administratix without authority of

SPECIAL PROCEEDINGS

25

court, has no legal effect, and this is more so since two of said heirs are under age and the others did not ratify the option contract. The judicial administratix of the estate was not legally authorized to sell, or contract to sell, any property belonging to said estate without the authority of the court, and the contract entered into by her and another without this authority is null and void.

Estate of Gamboa v. Floranza A CFI in the exercise of its probate jurisdiction has no power to allow the sale of a specific piece of real estate for the purpose of paying off a mortgage lien thereon. o It may be that the court would have authority to sell the property, subject of the mortgage lien, for the purpose of paying other debts of the estate, but there is nothing giving the court authority to sell it for the purpose of paying that specific debt. An order by a CFI in a probate proceeding for the sale of real property belonging to the estate of the deceased is void when no notice of hearing upon the petition of such sale is given. CFI Rizal v. CA Person who offered to buy property of the estate even if for a higher price is without legal personality to impugn validity of the sale already made to another although at a lower price for not being an interested party in the estate. o An interested party in the estate of a decedent has been defined as one who would be benefitted by the estate, such as an heir or one who has a claim against the estate such as a creditor. In a special proceeding for administration of an estate, the probate court enjoys ample discretion in determining under what conditions a particular sale would be most beneficial to all persons interested and appellate courts are wont not to interfere with or attempt to replace the action taken by it unless it be shown that there has been positive abuse of discretion. Jaroda v. Cusi If even to sell for valuable consideration property of the estate requires prior written notice of the application to the heirs, legatees, or devisees, such notice is equally if not more indispensable for disposing gratuitously of assets of the decedent in favour of strangers. Without such notice, the order of the court authorizing the sale is void. Boaga v. Soler A sale of properties of estate as beneficial to interested parties must comply with the requisites which are mandatory. Among these, the fixing of the time and place of hearing for an application to sell, and the notice thereof to the heirs, are essential; and without them, the authority to sell, the sale itself, and the order approving it would be null and void ab initio. o 90.4 (old rules) does not distinguish between heirs residing in and those outside the Philippines. Therefore, its requirements should apply regardless of the place of residence of those required to be notified under said rule. Where there is no showing that the sale was made for the purpose of paying debts or expenses of administration of the estate 90.2 (notice required only to this heirs residing in Philippines) does not apply. The rule is that a decedents representative is not estopped to question the validity of his own deed purporting to convey land; and if this be true of the administrator as to his own acts, a

SPECIAL PROCEEDINGS

26

fortiori, his successor cannot be estopped to question acts of his predecessor (that) are not conformable to law.

RULE 90: DISTRIBUTION AND PARTITION OF THE ESTATE

Gatmaitan v. Medina A partial distribution of the decedents estate pending the final determination of the testate or intestates estate pending the final termination of the testate or intestate proceedings should as much as possible be discouraged by the courts, and unless in extreme cases, such form of advances of inheritance should not be countenanced. The reason for this strict rule is that courts should guard with utmost zeal the estate of the decedent to the end that creditors be adequately protected and rightful heirs assured of their shares in the inheritance. The order of partial distributioin appealed from is unwarranted. o First because it was prematurely issued, the period for presentation of claims not having as yet lapsed. o Secondly, because no bond was fixed by the court as a condition precedent to the partial distribution ordered by it. Order of partial distribution is interlocutory. When the objection founded on the ground that the order appealed from is interlocutory, but the appellee, before making such objection, has allowed the record on appeal to be approved and printed, and has allowed the appellant to print his brief, such objection is too late and is deemed waived. Torres v. Encarnacion Where a partition had not only been approved and thus become a judgment of the court, but distribution of the estate in pursuance of such partition had fully been carried out, and the heirs had received the property assigned to the, they are precluded from subsequently attacking its validity or any part of it. o A party cannot in law and in good conscience be allowed to reap the fruits of a partition, agreement or judgment and repudiate what does not suit him. Where a piece of land has been included in a partition and there is no allegation that the inclusion was effected through improper means or without the claimants knowledge, the partition barred any further litigation on the title to said land, and operated to bring the property under the control and jurisdiction of the court for proper disposition according to the tenor of the partition. To all intents and purposes, the property was in custodia legis. Lopez v. Lopez A person claiming to be an acknowledged natural child of a deceased need not maintain a separate action for recognition but may simply intervene in the intestate proceedings, by alleging and proving therein his or her status as such, and claiming accordingly the right to share in the inheritance. Appellants claim that they had no notice either of the petition for the declaration of heirs or of the date set for the hearing thereof. We find in the record no evidence affirmatively showing that they had no such notice; therefore the presumption of regularity of the proceedings should stand. Imperial v. Munoz

SPECIAL PROCEEDINGS

27

An order of the CFI which determines the distributive shares of the heirs of a deceased person is appealable. The orders being final in character should have been appealed by the party adversely affected within the 30-day reglementary period provided for appeal.

RULE 91: ESCHEATS

De Guzman v. Sevilla The persons entitled to succeed a natural child in an intestate succession are the father or mother who acknowledged it, and in default of either, its natural brothers (and sisters). And with the exception of relatives mentioned, no other relative of the natural child has the right to succeed it. Although there are no relatives entitled to succeed the deceased, it is however premature to award the estate to the state before the requirements of sections 750-752 of the code of civil procedure are complied with. In re estate of Lao Sayco In order to decree reversion to the State of the property left by one who dies without heirs or relatives to inherit from him, it is indispensable that the requisites of Sec. 751 of the code of civil procedure be fulfilled by making due inquisition with regard to matters therein specified at the instance of the municipality. Furthermore the person who lays claim to the property left by the decedent as the latters successor or heir must prove his identity and rights. Municipality merely prayed for an order of reversion and for the adjudication in behalf of the municipality of the property aforementioned; he did not comply with the provisions of the law by furnishing the required proofs in regard to the matters hereinabove indicated, which must be the subject of an investigation.

GENERAL GUARDIANS AND GUARDIANSHIP RULE 92: VENUE RULE 93: APPOINTMENT OF GUARDIANS RULE 94: BONDS OF GUARDIANS RULE 95: SELLING AND ENCUMBERING PROPERTY OF WARD RULE 96: GENERAL POWERS AND DUTIES OF GUARDIANS RULE 97: TERMINATION OF GUARDIANSHIP
Francisco v. CA A guardianship is a trust relation of the most sacred character in which one person called a guardian acts for another called the ward whom the law regards as incapable of managing his own affairs. Having in mind that guardianship proceedings is instituted for the benefit and welfare of the ward, the selection of a guardian must, therefore suit this very purpose. Thus, in determining the selection of a guardian, the court may consider the financial situation, the physical condition, the sound judgment, prudence and trustworthiness, the morals, character and conduct, and the present and past history of a prospective appointee, as well as the probability of his being able to exercise the powers and duties of guardian for the full period during which guardianship is necessary.

SPECIAL PROCEEDINGS

28

Here is need for the petitioner to be retired from the guardianship over the person and property of the incompetent, as he is of rather advanced age (72 when case was instituted, 76 when decided by SC) and found by the trial court to be unfit to continue the trust. To sustain him as guardian would be detrimental to the ward. o While age alone is not a controlling criterion in determining a persons fitness or qualification to be appointed or be retained as guardian, it may be a factor for consideration.

Tavera v. El Hogar Fil. Inc. It is not necessary for a grant of authority to the guardian to sell the estate of the ward to state that the income from the property is insufficient to maintain the ward and his family or to maintain or educate the ward when a minor. It is enough that it appears to the satisfaction of the court that it is for the benefit of the ward that his real estate or some part thereof should be sold, and the proceeds thereof put out at interest or invested in some productive security. Paciente v. Dacuycoy Where title to any property said to be embezzled, concealed or conveyed is in question the determination of said title or right whether in favour of the ward or in favour of the person said to have embezzled, concealed or conveyed the property must be determined in a separate ordinary proceeding and not in guardianship proceedings. If the right or title of the ward to the property is clear and indisputable the court may issue an order for the delivery or return of the property to the ward. Gamboa v. Lopez Vito The leasing of a realty belonging to the guardianship of a minor forms part of the acts of administration, is subject to the direct supervision and jurisdiction of the court having cognizance of the guardianship. o The circumstance that the petitioner is in possession of certain portions of the hacienda under his contract of lease with the respondent guardian, does not alter the aspect of the case or deprive the respondent judge of his jurisdiction to pass upon the lease offers and to approve one of them. Bengzon v. PNB Since the rules enumerate the grounds for removal or a guardian, a guardian cannot be removed except for the causes therein mentioned. o To the extent that a court uses its discretion in appraising whether a person is insuitable or incapable of discharging his trust that much it can be said that removal is discretionary. o But discretion must be exercised within the law, and when the latter has laid down the grounds for removal of a guardian, discretion is limited to inquiring as to the existence of any of those grounds. Neither is it sufficient to base removal on the unsubstantiated opinion that it would be more beneficial to the interests of the ward and more convenient for the administration of the estate.

RULE 98: TRUSTEES

SPECIAL PROCEEDINGS
RULE 99: ADOPTION AND CUSTODY OF MINORS RULE 100: RESCISSION AND REVOCATION OF ADOPTION

29

De la Cruz v. De la Cruz The two proceedings are separate and distinct from each other (adoption and revocation). o In adoption what is determined is the propriety of establishing the relationship of parent and child between two persons not related by nature. The court inquires into the qualifications and disqualifications of the adopter, the probable value and character of his estate o In revocation of adoption the adopting parent or adopted seeks to severe the relationship previously established and the inquiry refers to the truth of the grounds upon which revocation is sought. Once the proper court has granted a petition for adoption and the decree has become final the proceeding is terminated and closed. o A subsequent petition for revocation of the adoption is neither a continuation of nor an incident in the proceeding for adoption. It is an entirely new one, dependent on facts which have happened since the decree of adoption. o The venue of this new case is also the place of the residence of the petitioner. Nieto v. Magat The fact that the prospective adopters reside temporarily in a foreign country does not disqualify them from adopting a minor child. Trial custody may be dispensed with either by the court on its own or upon petitioners motion if it finds that it is to the best interest of the child. Bobanovic v. Montes As a judgment is not confined to what appears on the face of the decision but also to those necessarily included therein or is necessary thereto, it follows, therefore as a logical effect of the decree of adoption, that the adopted minor should be allowed to travel to Australia to join his adoptive parents.

RULE 101: PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSONS RULE 102: HABEAS CORPUS
Gonzales v. Viola A person out on bail is not so restrained of his liberty as to be entitled to a writ of habeas corpus. o The restraint of liberty which should justify the issuance of the writ must be more than a mere moral restraint; it must be actual or physical. Velasco v. CA The writ of habeas corpus is essentially a writ of inquiry and is granted to test the right under which a person is detained. While ordinarily the writ will not be granted when there is an adequate remedy by writ of error or appeal or writ of certiorari, it may nevertheless be available in exceptional cases, for the writ

SPECIAL PROCEEDINGS

30

should not be considered subservient to procedural limitations which glorify form over substance. o Habeas corpus collateral attack on the judgment and reaches the body but not the record o Certiorari assails directly the judgment and reaches the record but not the body Common law spouse may institute habeas corpus petition as she falls within the purview of the term some person under 102.3. o Any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application. Even if the detention is at its inception illegal, it may, by reason of some supervening events such as 102.4 be no longer illegal at the time of the filing of the application. o Among such supervening events is the issuance of a judicial process preventing the discharge of the detained person. o Another is filing of a complaint or information for the offense for which the accused is detained.

Alimpoos v. CA Technically the proceeding by habeas corpus is in no sense a suit between private parties. It is an inquisition by the government at the instance of an individual, most probably, but still in the name and capacity of the sovereign. It may be analogized to a proceeding in rem and instituted solely for purpose of fixing the status of a person. o The person restrained is the central figure in the transaction. The proceeding is instituted solely for his benefit. As it is not designed to obtain redress against anybody and as no judgment can be entered against anybody, and as there is no real plaintiff and defendant, there can be no suit in the technical sense. Accused should limit his petition for habeas corpus to the person holding him in custody. In a habeas corpus case prayer for or award of damages is out of place. If the petition arises out of a criminal case, it is the fiscal, not the private offended parties who may appeal an order of release issued by the court. In a habeas corpus proceeding the court may not enjoin the further prosecution or the preliminary examination of the accused. o It may only order his release if the warrant issued is illegal. Where a warrant of arrest was improperly issued the proper remedy is a petition to quash it, not a petition for habeas corpus. o Habeas corpus should not be granted when there is another remedy. The costs should be adjudged against the Republic not the private defendants if the petition is meritorious. Villavicencio v. Lukban The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Where it is possible for a party to sign an application for the writ, it is proper for the writ to be submitted by some person in his behalf. It is a general rule of good practice that to avoid unnecessary expense and inconvenience petitions for habeas corpus should be presented to the nearest judge of the CFI.

SPECIAL PROCEEDINGS
o

31

The writ may be granted by the SC or any judge thereof enforceable anywhere in the Philippine islands. o Whether the writ shall be made returnable before the SC or before an inferior court rests in the discretion of the SC and is dependent on the particular circumstances. A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential objects and purpose of the writ is to inquire into all manner of involuntary restraint as distinguished from voluntary and to relieve a person therefrom if such restrain is illegal. Any restraint which will preclude freedom of action is sufficient. o The fact that the party to whom the writ is addressed has illegally parted with the custody of the person before the application of the writ is no reason why the writ should not issue. o The place of confinement is not important to the relief if the guilty party is within the reach of process so that by the power of the court he can be compelled to release his grasp. For respondents to fulfil the order granting the writ three courses were open (1) they could have produced the bodies of the persons according to the command of the writ (2) they could have shown by affidavits that on account of sickness or infirmity these persons could not safely be brought before the court (3) they could have presented affidavits to show that the parties in question or their attorney waived the right to be present. o An officers failure to produce the body of a person in obedience to a writ of habeas corpus when he has power to do so is contempt committed in the face of the court.

Bengzon v. Ocampo The judge in a habeas corpus proceeding must immediately proceed to hear and decide the case, unless for good cause shown the hearing is adjourned in which even the court or judge shall make such order for the safekeeping of the person imprisoned or restrained as the nature of the case requires. o Safekeeping of the person imprisoned or restrained cannot be construed to mean temporary release on bail because a person arrested or detained cannot be released on bail unless that right is granted by law. o Safekeeping means the act or state of keeping or being kept in safety and a person arrested is not safely kept if released on bail.

RULE 103: CHANGE OF NAME

San Roque v. Republic That the petition was entitled one to correct name in birth certificate of Leoncia San Roque and prayed that petitioners name appearing in her birth certificate did not necessarily make the petition fall under the provisions of 108. o Ultimately, notwithstanding the imperfection of the language employed, the petition was in essence one to secure judicial authority for appellee to changer her name from Lucia to Leoncia a petition which falls under 103.

SPECIAL PROCEEDINGS

32

Republic v. Aquino Failure to include the name sought to be adopted in the title of the petition, and consequently in the notices published in newspapers is a substantial jurisdictional infirmity. For publication to be effective it must give correct information. o It should recite among others: name or names of applicant; cause for which the change of name is sought; and the new name asked for. Non-compliance with the rules did not vest the court with authority to act on the petition and therefore, the questioned decision is null and void. Rotaquio v. Republic The change of name is a mere privilege and not a matter of right, but it is equally true that the authority may be granted by the courts if there is sufficient reason therefor: as when the change is necessary to avoid confusion. Republic v. Marcos All aliases of the applicant must be set forth in the title of the published petition for the omission of any of such aliases would be fatal to the petition even if such other aliases are mentioned in the body of the petition. A change of name should not be permitted if it will give a false impression of family relationship to another where none actually exists. The petition for change of name must be filed by the person desiring to change his/her name even if it may be signed and verified by some other person in his behalf. o Hence only she when she shall have reached the age of majority may file petition to changer her name. the decision to changer her name, the reason for the change, and the choice of a new name and surname shall be hers alone to make. It must be her personal decision. No one else may make it for her. o When she grows up she may not want to use her stepfathers name nor any of the aliases chosen for her by her mother.

RULE 104: VOLUNTARY DISSOLUTION OF CORPORATIONS RULE 105: JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN RULE 106: CONSTITUTION OF FAMILY HOME RULE 107: ABSENTEES RULE 108: CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY
Republic v. Valencia If the subject matter of a petition is not for the correction of clerical errors of harmless and innocuous nature, but one involving nationality or citizenship, which is indisputably substantial as well as controverted, affirmative relief cannot be granted in a proceeding summary in nature. Even substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding.

SPECIAL PROCEEDINGS
o

33

Adversary proceeding one having opposing parties, contested as distinguished from an exparte application, one of which the party seeking relief has given legal warning to the other party and afforded the latter an opportunity to contest it. Upon filing of the petition it becomes the duty of the court to (1) issue an order fixing the time and place for hearing of the petition, (2) cause the order for hearing to be published once a week for 3 consecutive weeks in a newspaper of general circulation in the province. If all the procedural requirements under rule 108 have been followed the proceeding is no anymore summary, it becomes adversary. Persons who may be made parties (or oppose) cancellation or correction of entry in civil register (1) civil registrar, and (2) all (any) persons who have a claim or interest which would be affected thereby.

Republic v. Bartolome Mistakes that are clerical in nature or changes that are harmless and innocuous are allowed to be corrected under the summary procedure under Art. 412 of civil code and rule 108 of rules of court. Change in the entry in the birth certificate from Domingo Patawaran to Domingo P. Dizon and the alteration of the word unknown after the column name of father to policarpio dizon involves an issue of paternity and filiation. o Such petition filed after 65 years, is an audacious indirect attempt to establish his filiation with the deceased through the simple expedient of changing entries in his record of birth in the civil registry and to establish his right to inherit. Yu v. Civil Registrar The petition must conform and comply with the provisions of rule 108 (108.3 required parties) and petitioners having failed to comply with the requirements thereof the trial court committed no error in dismissing the petition. The reason why non-clerical mistakes cannot be corrected under summary proceeding lies in the fact that the books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained. o And if the entries in the civil register could be corrected or changed through a mere summary proceeding and not through appropriate action wherein all parties who may be affected by the entries are notified or represented we would set wide open the door to fraud or other mischief the consequences of which might be detrimental and far reaching. Batbatan v. Office of Local Civil Registrar A clerical error implies mistakes by the clerk in copying or writing, the making of wrong entries in the public records contrary to existing facts. We have tended to be strict in the application of rule 108 to avoid this summary procedure from being unlawfully utilized to bring about a change of citizenship, paternity, status or other substantial attribute or qualification. o However where justice and equity dictate it and where no change is contemplated we have also readily sustained its use. In this case the errors committed by the clerk resulted in entries contrary to law. The changes sought would bring about compliance with the law. Thus petition is granted.

SPECIAL PROCEEDINGS

34

Chiao Ben Lim v. Zosa Changes in birth entry regarding a persons citizenship are now allowed as long as adversary proceedings are held. o Where such a change is ordered, the court will not be establishing a substantive right but only correcting or rectifying an erroneous entry in the civil registry as authorized by law. o Rule 108 provides only the procedure or mechanism for the proper enforcement of the substantive law embodied in Art. 412 and so does not violate the constitution. Republic v. Belmonte Procedure for change of name under rule 103 and for cancellation or correction of entries in the civil registry under rule 108 are separate and distinct, they may not be substituted one for the other for the sole purpose of expediency. o If both reliefs are sought in the same proceeding all the requirements of rules 103 and 108 must be complied with. A clerical error must be apparent on the face of the record and should be capable of being corrected by reference to the record alone. o Until the name of her father (Po) is shown to have been registered in her birth certificate erroneously, there is no justification for allowing the petitioner to use another surname (Pao). o Aside from the change of her name petitioner seeks a correction of entries in the civil registry for the benefit of her parents. This she may not do through a summary proceeding.

RULE 109: APPEALS IN SPECIAL PROCEEDINGS