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SPECIAL PROCEEDINGS
NOTE: Declaration of absence and death: There is no such thing as declaration of deathit should be absence leading
to the declaration of death.
These are the only things, which we will be discussing in Special Proceedings (I will state them in the order of importance,
procedurally speaking):
1.
Settlement of Estates- states the meat of special proceedings
2.
Adoption- although this is already studied in civil law; it is important because of the new rule on adoption, not the
laws on adoption (R.A. 3552, the Domestic Adoption Act of 1998 as well as R.A. 8043, the Inter Country Adoption
Law of 1995)not that because that is substantive. I am talking of the new rule on adoption which took effect
sometime in August 2004. I thats why I think its the second most important thing to discuss here.
3.
Rule 103 in relation to Rule 108, Change of Name and Correction of Entry..again, because of the new law. So the
possibility of being asked in the BAR is great. (Read also R.A. 9048)
4.
Guardianship- practically the same rules of procedure as settlement of estate..only that in settlement of estate, the
subject is dead unlike in guardianship, the subject is still alive. Physically alive, but mentally dead or a minor. That
is the difference between the two.
5.
Habeas Corpus- a peculiar kind of special proceeding
6.
Escheat
7.
Trust (not the trust you buy in Mercury, but relationtrust relation)
All the rest, we will not discuss anymore. Voluntary Dissolution of Corporations; Declaration of Absence & Death;
Hospitalization of Insane Persons(but, I still advise you to read), even the Constitution of the Family Home.
If I were an examiner, I would definitely ask in Special Proceedings, Settlement of Estate and next to Settlement of Estate
would be Adoption and next to that would be Habeas Corpus.
Note that even in last years BAR examination there was no question on special proceedings because utmost you get only
one question for BAR purposes, one question in Special Proceedings. Very seldom if you find two questions in Special
Proceedings. If, perhaps, the examiner is teaching special proceedings, then perhaps he will ask you more questions in
the BAR, but ordinarily nonot that Im demeaning its importance.
My other consolation is that you are well-versed in Special Proceedings, that remains to be seen starting this afternoon.
Remember, Special Proceedings is different from all other actions, including Special Civil Actions. If you are asked to
define what a Special Proceeding is, A Special Proceeding is an action other than an ordinary action, a special civil
action, or a criminal action. That is a correct definition by exclusion. To be more specific, Special Proceedings are
actions geared or directed towards the establishment of a right, status, or a particular fact. The ordinary rules
apply here and more so because there are specific provisions that distinguishes it from special civil actions where it has a
special rule. Here, no. It has its own uniqueness. Every Special Proceeding has its own nuances. For example,
because the objective is the establishment of a right, status, or a particular fact, summons, here, is ordinarily not needed.
In special proceedings, there is no defendant, so there is no need for summons. Summons, as we have studied is the way
by which a court acquires jurisdiction over the person of the defendant (Rule 14). The only exception is, of course,
Habeas Corpus Proceedings wherein you name a respondent but the respondent here is different from a
defendant because summons is not necessary.
Q: So, how does a court acquire jurisdiction over the case?
A: There is no need for the court to acquire jurisdiction over the person of the defendant because there is no defendant.
Therefore, the court should acquire jurisdiction of the case, over the subject matter. How? Because it is an action in rem,
ordinarily publication. So that is the uniqueness of Special Proceedings. Publication is the means by which the court
acquires jurisdiction over the subject matter. It is ordinarily not initiated by Complaint, but by Petition.
NOTE: Again, unlike other actions, as a general rule, Special Proceedings do not prescribe. There might be limitations of
such periods in some instances, but ordinarily, they do not prescribe.
Q: What are the Special Proceedings?
A: Name them according to the Rules starting from Rule 73-90 Settlement of Estate; Rule 91 Escheat; Rules 92-97
General Guardians & Guardianship; Rule 98 Trustees; Rules 99-100 are no longer applied because they are deemed

repealed by the new rules on adoption, including Rescission & Custody of Children, these Rules are no longer applied
because of the adoption of the Child & Youth Welfare Code.
Definition of Special Proceeding
Under Rule 1, Section 3, a special proceeding is a remedy by which a person seeks to establish a status, right or
particular fact. In civpro/crimpro,the right is established. The status or particular fact is the source of such right. In special
proceedings, the right is not yet legally established.
Why Special?
Because primarily, the rules mandating Special Proceedings are governed not by the ordinary civil action rules, but has its
own nuances. For example, because the objective is the establishment of a right, status, or a particular fact, summons,
here, is ordinarily not needed. In special proceedings, there is no defendant, so there is no need for summons.
Publication, is the means through which the court can acquire jurisdiction over the case. Summons, as we have studied is
the way by which a court acquires jurisdiction over the person of the defendant (Rule 14). The only exception is, of
course, Habeas Corpus Proceedings wherein you name a respondent but the respondent here is different from a
defendant because summons is not necessary.

The law on prescription will not apply. In that, the probate of the will can still be done anytime because
what the law only requires for period to apply is on the duty to show/present the will within 10 days
from knowledge of death.
SETTLEMENT OF ESTATE OF DECEASED PERSONS
When you speak of Settlement of Estate, immediately what comes to your mind is that someone died (and thats the
beauty in lawmen live forever in lawthey continue in their estateThere are those who want someone dead because
of his estate. there are also those who want somebody alive because he has no estatebut actually, even if you are a
pauper or a millionaire, you always have an estate. So you live forever through your estate. That estate must be settled).
What is an estate?
It is the totality of assets and liabilities of the decedent.
Why is that that the Settlement of Estate is complex?
It is because in this case, the person whose estate is subject to controversy is already NOT around.
2 Modes of Settlement of Estate
1.
Judicial
a.
Summary Settlement of Estate of small value
b.
Judicial partition (Rule 69)
c.
Escheat (Rule 91)
d.
Administrative/Conventional Settlement of Estate (Rule 73-90)
2.
Extrajudicial
a.
Extrajudicial partition
b.
Affidavit of Self-Adjudication
A. Extrajudicial Partition
Situation: When X, the decedent left A, B, C, and D as heirs. The four of them enter into extrajudicial partition of the estate
left by X. They had it published, and proceeded to the Register of Deeds, and finally, the distribution of the estate in
accordance with the partition entered into. This pertains to an estate composing real properties. However, if the estate
composes personal properties, the four of the heirs can right away distribute among themselves the personal properties
left by X.
B. Affidavit of Self-Adjudication
The requirements include the following:
1.
The decedent dies without a will.
2.
There is only one heir left by the decedent.
3.
Whether or not there is a debt left by the decedent so long as if there is debt, the estate can make good of it.
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How do you undergo with the Affidavit of Self-Adjudication?


The word suggests already that it is an affidavit, which in there, you have to state that your father or your mother died;
and that he/she left the following properties; and that you are the only heir of your parent ( evidenced by the marriage
contract of your parents and your birth certificate); and that the estate are such and such (describe with particularity if the
property happens to be a real property), valued accordingly; and that they are found there (location of property). After
complying with the same, you simply submit that to the Register of Deeds and the Register of Deeds will act on it only
after you comply with the requirement of publication and if there are personal properties belonging to the estate,
you have to put up a bond according to the value or upon the discretion of the register of Deeds. This is extrajudicial;
hence, the court has no participation whatsoever. You simply submit to the Register of Deeds, the Register of Deeds acts
on it and if there is already publication, once a week for 3 consecutive weeks in a newspaper of general circulation, the
Register of Deeds will simply transfer the title in favor of the affiant.
Q: Suppose Mr. X, who died, was known to everyone to have one child but later on, it was found out that he had other
illegitimate children. What will happen to the affidavit of self adjudication? Is there any finality?
A: NO. Even if the properties have already been distributed, they aer still subject to claims.
Q: How do you go about in making an Affidavit of Self Adjudication?
A: The word suggests already that it is an affidavitso, how do you formulate an affidavit? You simply state in your
affidavit that your father or your mother died; and that he/she left the following properties; and that you are the only heir of
your parent; and that the estate are such and such, valued accordingly; and that they are found there (location of
property)..you simply submit that to the Register of Deeds and the Register of Deeds will act on it only after you comply
with the requirement of publication and if there are personal properties belonging to the estate, put up a bond according to
the value or upon the discretion of the register of Deeds. (extrajudicial hathe court has no participation whatsoever here)
You simply submit to the Register of Deeds, the Register of Deeds acts on it and if there is already publication, once a
week for 3 consecutive weeks in a newspaper of general circulation, the Register of Deeds will simply transfer the title in
favor of the affiant.
The other mode of extrajudicial settlement is extrajudicial partition...that is not under Rule 69 because under Rule 69 is
judicial partitionhere, the parties agreed, but take note that there is also no will and there are also no debts and even if
there are debts, there is sufficient money to answer for those debts which are reservedthe money is reserved to answer
for debtsso you can partition among and between yourselves these properties, provided all of you are of age. If one is a
minor, he is duly representedordinarily, you ask the court for the appointment of a guardian ad litem. This form of
extrajudicial settlement is similar to Partitionthere is really no distinguishing feature between extrajudicial partition and
extrajudicial settlement. Jurisprudence tells us that any act between and among persons that would lead to the division of
property is a form of partition or settlementany act that would terminate indivision would be division.
In affidavit of self adjudication, of course you have to support your allegations with documentary evidence (like for
example, that you are the only heir, this can be proven through your birth certificate and also the marriage contract and the
properties you wish to adjudicate unto yourself should be established by Titles or muniments of titles).
Judicial Settlement refers to Conventional: Rules 73-90. Summary Settlement of Estate is very impractical because up to
now the value of the estate is still P10T (P10,000) but you will note that there is still a requirement for publication (so if you
have it published once a week for 3 consecutive weeks, ubos na yung ten thousand mo).
Requirements of both Extrajudicial Settlement of Estate
1.
The necessary filing of public instrument or by stipulation in pending action for partition or the sole heir in the
latters affidavit of self-adjudication.
2.
Bond with the said Register of Deeds in an amount equivalent to the value of the personal property
involved as certified to under oath by the parties.
3.
Conditioned upon payment of any just claim charged with a liability to creditors, heirs, or other persons for
the full period of 2 years after such distribution, notwithstanding any transfers of real estate that may have
been made.
4.
This shall be published in a newspaper of general circulation once a week for 3 consecutive weeks.
Rules regarding Extrajudicial Settlement of Estates
1.
It shall be presumed that the decedent left no debts if NO creditor files a petition for letters administration
within 2 years after the death of the decedent.
2.
No extrajudicial settlement shall be binding upon any person who has not participated therein or had no
notice thereof.

RULE 73 VENUE AND PROCESS.


Q: Is settlement of estate limited to the estate of Filipino Citizen?
A: No.
Q: If an American was in the Philippines because he was a member of the Armed Forces, who joined the Balikatan
Forces in Mindanao and he died here, where should the settlement of estate be done? Is it the place of ones death which
is determinative of the venue? Suppose one had 5 residences because he had 5 wives?
A: This is a very confusing provision because the title is Venue & Process but the word venue is never mentioned. On
the other hand, the word jurisdiction is mentioned three (3) times.
Q: So, is the last residence of the decedent a matter of jurisdiction or a matter of venue?
A: It is a matter of venue so you cannot question it.
Q: Suppose Mr. X, a Filipino citizen residing in Cebu City died at St. Lukes Hospital, Quezon City, where should his
estate be settled?
A: In Cebu because it is the place of the final residence of the decedent.
Q: Suppose the heirs filed a petition for settlement of the estate in Quezon City, is the venue properly laid?
A: No.
Q: So, what happens to the case?
A: The settlement must continue because venue is not jurisdictional.
Let me emphasize to you that in civil cases, including special proceedings, venue is not jurisdictional, unlike in criminal
cases, venue is jurisdictional and from what we have learned under Rule 4 of the Rules of Court, venue may be waived.
So, if there is no opposition, there is no question as to the petition filed by anybody for the settlement of the estate of Mr. X
who is a resident of Cebu, the petition is filed in Quezon City, the issue is not jurisdiction but only of venue. But
considering that there was no opposition, then the petition for settlement must continue.
Sec. 1 there does not speak of jurisdiction. Jurisdiction here is conferred by law and RA 7691 confers that
depending on the value of the gross estate, which can either be the MTC or the RTC.
Q: What is Residence?
(You must have come across the leading case, Cuenco, et. al vs. Cuenco, cited in your book (it has to cited in your book)
because that is a very leading case, also the case of Fule, et al. vs. CA, these are the cases about venue and
jurisdictionemphasizes these cases cited in all books. Eusebio vs. Eusebio, that is also cited in your book These are
questions about the conflicting rules on venue and jurisdiction.)
A: It is now settled (because of there cases) that residence is only a matter of venue. It is not a matter of jurisdiction.
In this Rule, the word VENUE never appeared. But the word jurisdiction appears three times.
What court has jurisdiction over settlement of estate cases?
The jurisdiction is determined based on the GROSS VALUE of the property subject to settlement. It is in RTC, if the gross
value exceeds 300,000 outside Metro Manila or if it exceeds 400,000 within Metro Manila. However, it is in MTC if the
otherwise appears.
What will be the relevance of VENUE in this Rule?
This is provided for in the long line of cases starting from Cuenco vs. Cuenco, Fule vs. CA and latest is San Luis vs. San
Luis. It is now settled (because of these cases) that residence is only a matter of venue. It is not a matter of jurisdiction.
Cuenco vs. Cuenco
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This case of Cuenco is about Senator Cuenco. That Cuenco Street in Quezon City, parallelled to Espaa or Quezon Blvd.
He was a resident of Cebu but also had a house in Quezon City because he was a member the Senate. When he died in
Quezon City, his residence was in Cebu. When he died, he was already a widower at the time, so he had two families: the
first family with his first wife and the second family with his second wife. His second wife, staying with him in Quezon City,
filed a petition for the settlement of his estate in the RTC (Then CFI) of Q.C. After the 9- day novena for his demise,
the heirs of Senator Cuenco in Cebu City, filed a petition for settlement of his estate in Cebu. This reached the SC. The
issue was in fact wrong: Which court has jurisdiction? It is not a matter of jurisdiction but only of venue. But the
greater error here is not the error of the petitioners but the error of the Court. Why? Because the Q.C. Court on its own
initiative (motu propio) said we are going to give way to the court in Cebu to settle the estate. That cannot be done
because under the Rule, the court which first takes cognizance of a petition for settlement of estate, takes it to
the exclusion of all other courts. (Exclusionary Rule in Special Proceedings) And so, which court has jurisdiction?
Both courts have jurisdiction actually, but because of the Rule, since it was first filed with the Q.C. Court, it was
already taken cognizance of by said court in Q.C. to the exclusion of all other courts, including the Cebu Court .
That is why if ever the court cedes its authority in favor of the Cebu Court, that is wrong. It should have been correct if
anybody interested in the petition files a motion to dismiss on the ground of improper venue but there was none in
Quezon City court NOT in Cebu court.
In one of the Bar Exams using Cuenco vs. Cuenco, way back in 1992, this was treated by the examiner saying that a
motion to dismiss was filed with the Cebu Court and the Cebu Court granted it. Wrong. Why? Because the Cebu court
did not acquire jurisdiction because the petition was first filed in Q. C. and there can be no dual jurisdiction here
because the Rule says: the court acquires jurisdiction to the exclusion of all other courts.

1.
2.

3.

If within 2 years after settlement and distribution of an estate, an heir or other person has been
unduly deprived of his lawful participation in the estate- such heir or such other person may compel the
settlement of the estate in the courts for the purpose of satisfying such lawful participation.
If within 2 years, it shall appear that there are debts outstanding against the estate which have not
been paid or that an heir or other person has been unduly deprived of his lawful participation
payable in money- the court may by order for that purpose, after hearing settle the amount of such debts or
lawful participation and order how much and in what manner each distribute shall contribute in the payment
thereof and may issue execution, if circumstances require, against the bond or against the real estate
belonging to the deceased or both.
When can minor or incapacitated person file a claim against estate in this Rule? If on the date of the
expiration of the period of 2 years, the person authorized to file a claim is a minor, mentally incapacitated, or
is in prison or outside of the Philippines, he may present his claim within one (1) year after such disability is
REMOVED.

Judicial Partition
This is provided for under Rule 69 on Partition.
Escheat

This case was followed by the case of Eusebio vs. Eusebio and finally settled in the case of Fule vs. CA, a 1975 case.
Take note of that doctrine because that is very basic in Settlement of Estate under Sec. 1 of the Rule, there does not
speak of jurisdiction but only of venue. In Fule it has been settled that the residence is the actual place of habitation.

So that if a person has two residences, the Fule case settled that residence is the place of actual habitation or it may
not be the place of actual habitation, provided there is animus manendi (intent to remain) and animus revertendi
(intent to return).

1.

RULE 74: SUMMARY ESTATE


Requirements under the Rule:
1.
The gross value of the estate of a deceased person, (testate or intestate) DOES NOT EXCEED P10,000.
2.
A petition alleging the 1st requirement must be filed by an interested person.
3.
This can only be done upon hearing which shall be held not less than 1 month nor more than 3 months
from the date of the last publication of a notice.
4.
The notice must be published once a week for 3 consecutive weeks in a newspaper of general circulation.
5.
Notice to other interested persons as the court may direct.
6.
This can be proceeded to by the court summarily and even without the appointment of executor or
administrator, and without delay to grant, if proper, allowance of will. The purpose will be.
a.
To determine who are persons legally entitled to participate in the estate.
b.
To apportion and divide among the heirs after payment of such debts of the estate as the court
shall then find to be due, to persons in their own right, if they are of lawful age and legal
capacity or by their guardians or trustees legally appointed and qualified, if otherwise, shall
thereupon be entitled to receive and enter into the possession of the portions of the estate so
awarded to them respectively.
c.
To also make such other orders as may be just respecting the costs of the proceedings and all
other orders and judgments made or rendered in the course thereof shall be recorded in the
office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded
in the proper registers office.
7.
Distributees shall be required to file a bond in an amount to be fixed by the court for personal property,
conditioned for the payment of any just claim.
Rules regarding Summary Settlement of Estate of Small Value

In another form of Judicial Settlement, Escheat tells us that if a person dies without a will, without an
heir, and no debts, then the Office of the Solicitor General or his representative (such as the
provincial or city prosecutor) may file a petition, under the directive of the President of the
Philippines, an Escheat Proceeding.
Requirements before filing:
a.
Person dies intestate

Is there a possibility to still file an escheat proceeding despite the


presence of a will? Yes. Even if the decedent died testate but his will
was NOT PROBATED, it is as if he has no known heirs and there are no
persons entitled to his property.
b.
Seized of real or personal properties in the Philippines
c.
Left no heir or person by law entitled to the same
Where to file?
a.
If resident, RTC where the deceased last resided or in which he had estate.
b.
If non-resident, RTC of the place where his estate is located.
But if it happens that during the pendency of the proceeding, a will pops up, and then the proceeding
is discontinued.
If an heir, devisee, legatee, widow, widower or other person entitled to such estate (PERSON WITH
INTEREST) pops up and files a claim thereto with the court within 5 years from the date of such
judgment, then the proceeding may be suspended and such appearing person with interest shall
establish his right otherwise, after the hearing, the property will go to the government. This escheat
proceeding is founded on the theory that all lands belong to the State known as the Regalian
Doctrine that you studied under LTD (Land Titles & Deeds and he who claims otherwise has the
burden of proof so after the escheat proceedings, the property belonging to the estate will go to the
city or municipality where it is found) and so as the Order of Succession in Civil Code.
The period of filing claims is WITHIN 5 YEARS FROM DATE OF JUDGMENT, and such 5 years shall
be reckoned from the DATE THE PROPERTY WAS DELIVERED TO THE STATE. However, if the
property has been sold, the municipality or city shall be accountable only for such part of the proceeds
as may NOT HAVE BEEN LAWFULLY SPENT.
The court, at the instance of an interested party, or on its own motion, may ORDER THE
ESTABLISHMENT OF A PERMANENT TRUST, so only the income from the property shall be
used.
So if the proceeding is in Manila, but the property escheated is in Calamba, the property escheated
located in Calamba will go to the City of Calamba and not to the City of Manila. The same thing with
personal property, where it may be found and the Rule is very specific that the property will be spent
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for the benefit of public schools, and public charitable institutions and centers in said municipalities or
cities.
What are the orders of the court after a petition is sufficient in form and substance?
1.
Make an order of hearing and such shall NOT be more than 6 months after entry of order.
2.
Direct the publication of a copy of the order at least once a week for 6 consecutive weeks.
What will be the remedy of the Respondent?
When the petition does not state facts which entitle the petitioner to the remedy prayed for, the respondent may file a
MOTION TO DISMISS the petition.
To whom will the property escheated be assigned?

1. If personal property- to the Municipality or city where he last resided.


2. If real property- to the Municipality or city where the property is situated.
3. If the deceased never resided in the Philippines- to the Municipality of city where the property may be
found.

Under Rule 91, Sec.5 is another form of escheat because that was given in the BAR 5 years ago. This
speaks of REVERSION. In other words, the property was acquired by an individual in violation of the
Constitution. Under the Constitution, any person, even foreigners who were former Filipinos, can now
acquire property in the Philippines and that was given more strength because of the Dual Citizenship
Law. Actions for REVERSION are proper in illegal sales of land to disqualified aliens. This will in no
way apply to properties taken from enemy nationals after WORLD WAR II and which were reacquired
by the Republic because such reacquisition was in pursuant to the Philippine Property Act of 1946 and
not by virtue of an ESCHEAT PROCEEDING. The action must be instituted in the province where the
land lies in whole or in part.
Even if title thereto was not transferred to the Government, can it be escheated to local
government? No.
The thirds instance of escheat is that of unclaimed dormant accounts for 10 years under the
Unclaimed Balance Act which shall be filed at the RTC of the place where the dormant deposits are
found.
The right to escheat may be waived expressly or impliedly.
The proceedings in Escheat CANNOT BE CONVERTED INTO SETTLEMENT OF ESTATE. For the
distribution of the estate of the decedent to be instituted, the proper petitions must be presented and
the proceedings should comply with the requirements of the Rule. This is so because, an escheat
proceeding does not have the power to order or proceed with the distribution of the estate of a
decedent in escheat proceedings and adjudicate the properties to the oppositor. (Municipality of
Magalloon, Negros Occidental vs. Ignatius Henry, Oct. 26, 1960)

D. Administrative/Conventional Settlement of Estate


This is provided for under Rule 73-90 of the Rules of Court.

RULE 75: PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY


Under the Rule, it says that, No will shall pass either real or personal property unless proved and allowed in the property
court. And that subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.
Are you bound to file a petition?
No. The obligation there is only to deliver the will. But if you do file a petition, because you are the custodian of the will,
you must have an interest in the estate. You may either be the named administrator, a devisee, a legatee, or a creditor,
and with more reason, if you are an heir, you have an interest. If you are in the custody of the will, and you filed a

petition for settlement of estate, you have to attach the will in your petition. But if you are not in custody of the will and
you are interested in the settlement of the estate, you simply file a petition without the will annexed.
This can also be evidenced by the provision under Rule 76 Section 3 that, upon presentation of the will to the court having
jurisdiction, the court will now set the date for hearing thereof with the exception when the testator on its own initiative
probated his will during his lifetime, in which case, no publication is required and notice will only be required to be
made to compulsory heirs. Hence, SURRENDER here is tantamount to a petition.
Situation: H is a resident of Caloocan and he executed a will. He gave it to his kumpadre as a custodian who lived in
Baguio. H died in Caloocan. The kumpadre surrendered to RTC of Baguio City which is the court of proper jurisdiction, the
will executed by H.
May the heir still file a petition? No, because of the EXCLUSIONARY RULE under Rule 73 in that mere surrender of the
will commences the settlement of the estate.
What court has jurisdiction? Again, it depends on the gross value of the estate involved.
What if all the heirs resided in Caloocan City, and they filed petition for probate in RTC of Caloocan, given that the
surrender of the will was done in RTC of Baguio where the custodian resided, can the heir move to dismiss the
case in Baguio? Yes, because RTC of Caloocan has no jurisdiction since the commencement of the settlement was
already done in RTC of Baguio which is understood to be to the exclusion of other courts.
What if the petition now was filed in RTC Baguio City, and you move for its dismissal in yet another RTC branch,
how will you rule on the same? The same thing, you cannot do so because once a branch of RTC takes cognizance of
the case, it is still understood that it is to the exclusion of the other branches of such RTC, if any.
If you are a custodian of a will of the decedent, what is your obligation?
To deliver to the court the will within 20 days after the death. (Sec. 2, Rule 75)
Rules under this Rule:
1.
There is a corresponding sanctions to custodian and executor and also to persons retaining the will when not
heeding to the mandate/order of the court, which are:
a.
A person who neglects any of the duties of a custodian without excuse satisfactory - fined not
exceeding 2,000.
b.
A person having custody of a will who neglects without reasonable cause to deliver the same
when ordered to do so- committed to prison and there kept until delivery.

RULE 76- ALLOWANCE OR DISALLOWANCE OF WILL


What is Probate?
It is the act of proving in a court a document purporting to be the last will and testament of a deceased in order that it may
be officially recognized, registered and its provisions carried out insofar as they are in accordance with the law or also
known as allowance of the will.
What will be the contents of the Petition?
The following must be shown on the petition as far as known to the petitioner:

1.

The Jurisdictional Facts:


a.
b.

2.
3.
4.
5.

Death of the testator


His residence at the time of death or the province where estate was left by the decedent who is
non-resident
Names, ages and residences of the heirs, legatees and devisees of the testator or decedent
Probate value and character of the property of the estate
Name of the person for whom letters are prayed for
Name of the person having custody of the will if it has not been delivered to the court
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*No defect in the petition shall render VOID the allowance of the will or the issuance of letters testamentary
or of administration with the will annexed.

What is the effect of the probate of the will?


It is conclusive as to the execution and validity of the will (even against the State). Thus, a criminal case against the forger
may not lie after the will has been probated because the probate of the will is conclusive as to its execution and validity.
What is the issue in probate of the will?
It is with respect only to the determination of the extrinsic validity (due execution), not the intrinsic validity of testamentary
dispositions.
Exceptions:
1.
On Principle of Practical Consideration
a.
The waste of time, effort, expense, plus added anxiety are the practical considerations that
induce us to a belief that we might as well meet head on the issues of the validity of the
provisions of the will in question.
b.
Where the entire or all testamentary dispositions are VOID and where the defect is apparent on
its face.
Let us go now regarding these two: It can be testate or intestate. You know testate, in other words, there is a will.
Intestate, there is no will. The distinction, regarding these two will give you also the distinction between an executor and
an administrator.
Q: What is the distinction between an executor and an administrator?
A: The executor is the one appointed by the decedent as embodied in the will. The administrator is the one appointed by
the court if there in no will, or if there is a will but does not designate an executor, or even if there is an executor, the
executor refuses to accept the trust or fails to put up a bond These are the requirements: He is either not qualified; he
fails to accept the trust; or he fails to put up a bond so an administrator may be appointed.
Q: An administrator is of two kinds, what are they?
A: Rule 80
1.
Special Administrator ( also of two kinds): With the will or Without a will annexed;
2.
Regular Administrator
Q: In what instances may the court appoint a special administrator?
1.
Delay in granting of Letters of Administration;
2.
Sec. 8, Rule 86: The executor is a claimant of the estate he represents.
Q: So, when you go to testate, why is it here that they are of two kinds: with the will or without a will annexed? How
would you explain that? Kailan nangyayari ito? If you are a custodian of a will of the decedent, what is your obligation?
A: To deliver to the court the will within 20 days after the death. (Sec. 2, Rule 75)
Q: Are you bound to file a petition?
A: No. The obligation there is only to deliver the will. But if you do file a petition, because you are the custodian of the
will, you must have an interest in the estate. You may either be the named administrator, a devisee, a legatee, or a
creditor, and with more reason, if you are an heir, you have an interest. If you are in the custody of the will, and you filed a
petition for settlement of estate, you have to attach the will in your petition.. But if you are not in custody of the will and you
are interested in the settlement of the estate, you simply file a petition without the will annexed.
In many instances, I was telling you that settlement of estate is the best example of multiple appeals, diba? Because in
the settlement of estate there are several stages.
Q: If it is a testate proceeding, what is the first stage?
A: Probate of a will.

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Under this lesson on a probate of a will, there is this general proposition that the probate court (the court probating a will)
either the MTC or the RTC, is a court of limited jurisdiction.
Q: What does it mean when the Rule says that a probate court is a court of limited jurisdiction?
A: A probate court can only rule on the due execution of the will and not as to its intrinsic validity.
This is what you have to understand. Even lawyers do not realize this. Sabi nila probate court yan so you cannot
question, you cannot raise the issue of ownership. The probate court ceases to be a probate court upon allowance or
disallowance of a will but it remains to be a court no longer of limited jurisdiction. That is why I was emphasizing on the
petition as settlement of estate and not as a petition for the probate of a will. Why? Once a will has been probated, thats
the end of it? No. It is only the first stage in the testate proceedings. So when the Rule says that the probate court is a
court of limited jurisdiction, only as far as the probate of a will is concerned. Pagkatapos nun, the court is no longer of
limited jurisdiction because it has to goappointment of the administrator or executor, approval of the accounting,
approval of the inventory, then payment of debts..papaano limited pa yun? No longer.
So as a probate court, the court is limited to the issue of authenticity and due execution, but you do not transfer courts
after the will has been probated, after the will has been allowed or disallowed which is a final resolution which is a final
order or resolution of the court which is appealable. But the appeal here is by record on appeal because it is multiple
appeal. The court now is no longer of limited jurisdiction because it is no longer a probate court.
Q: Ano ba ang end of settlement of estate?
A: Distribution under Rule 90. The first stage of settlement of estate, if it is a testate proceeding is the probate of the will.
That is where the court has limited jurisdiction.
Q: Why is this so? Why does this issue pop up here?
A: This is because during probate of the will, in the very petition, the jurisdictional requirement is that you have to state
what constitutes the estate and the value of the estate. Jurisdictional facts.
Q: If an oppositor enters the picture, the oppositor says mali yan because what constitutes the estate are these properties,
but what is stated in the petition do not belong to the estate, now, can the court decide the ownership of those properties?
A: No. That is where the limited jurisdiction comes into the picture. It cannot because the court has only the duty of
discussing whether the will has been duly executed so this is only as to the extrinsic validity of a will. The intrinsic will
come much, much later, the disposition of the will.
The issue of ownership is outside the jurisdiction of the probate court. But if the probate court cannot continue without
deciding the issue of ownership, the issue of ownership being incidental (intimately related to the issue of probate) to the
probate of the will, must be decided, but the decision here is not final. It is only provisional and it can be contested in
other proceedings and the rule on res judicata will not apply.
In the case of Balaraw which was assigned to you, that was also the issue involved.
In the beginning, there is no defendant. The equivalent of a defendant in a probate proceeding is the oppositor. The
oppositor is not only opposing the probate of the will, but also settlement of the estate, for one reason or another.
The objective of the settlement of the estate is the distribution of the estate among the heirs or those entitled thereto,
although not heirs (those persons named in the will).
Once the court allows or disallows a will, as the case may be, the nature of the court as a probate court ceases.
Therefore, the issue of limited jurisdiction no longer applies. Limited jurisdiction applies only to the authenticity and due
execution of the will.
Q: Once the will is allowed, What does it mean?
A: Rule 76: Allowance of the Will
If Mr. A is accused of a crime of falsification of documents by forging the signature allegedly of a testator and during the
pendency of the criminal action, the will allegedly forged by Mr. A was probated and allowed, the criminal case should be
dismissed because the probate of the court is final and if not appealed becomes conclusive. Wala na yung forgery
because the probate of a will only avows the fact that the signature there is authentic; that there was due execution of the
will. The case against A for falsification should be dismissed. Suppose he has been convicted, he shall be released.

Supposing he is not released, your remedy is to file a petition for habeas corpus because the basis .for restraining his
liberty no longer exists. (So kita nyo ang correlations.)
We are talking here of allowance of the will within the Philippines.
Q: Suppose a will was executed and allowed (probated) outside the Philippines, what happens?
A: Go to the next Rule, Rule 77: Allowance of Will proved Outside of the Philippines and Administration of Estate
thereunder.
Q: An American citizen residing in California died in California, his will was probated in the county state of San Bernardino.
That will has been allowed in the U.S. Should that will be also allowed in the Philippines?
A: No.
Q: What should anyone interested in the allowance of the will in the Philippines do because the deceased had property in
the Philippines?
A: It should be re-probated here and the venue is in the proper court of any province where the decedent had property.
This rule shall be read in conjunction with Sec. 48, Rule 39: Foreign Judgment.
Q: What are you supposed to establish or prove in the re-probate of a will?
A:

The due execution of the will in accordance with the foreign law;

That the testator had his domicile in the foreign country and not in the Philippines;

That the will has been admitted to probate in such country;

The fat that the foreign tribunal is a probate court;

That the laws of a foreign country on procedure and allowance of wills.

The fact of death (jurisdictional fact) of the testator in a place within the territorial jurisdiction of the court.
These are mandatory requirements. These must all be established in the Philippine courts. That is how to re-probate a
will which has already been allowed. Thereafter, the court should appoint an administrator. The foreign allowance of a will
leads to the appointment of a domiciliary administrator. Once it is probated in the Philippines, the court appoints an
ancillary administrator.
Q: Who may petition for the allowance of the will or who may oppose thereto?
A: Anybody who has an interest in the estate or in the disposition of the estate of the decedent
Q: What are the qualifications for one to be appointed as administrator of the estate?
A: Any competent person may serve as executor or administrator. He is incompetent if:
1.
a minor
2.
a non-resident
3.
one who in the opinion of the court is unfit to exercise the duties of the trust by reason of :
a.
drunkenness
b.
improvidence
c.
want of understanding and integrity
d.
conviction for an offense involving moral turpitude.
Q: If a man cannot sleep without drinking at least 3 beers before he goes to sleep, can he be appointed as administrator?
A: Yes. He is not a drunkard.
Q: Suppose in the very will, the testator named an executor of his estate, may the court appoint another one other than
the one named in the will?
A: Yes, when such person:
1.
refuses to accept the trust ( ang gusto nya kasi is he would accept the trust if it is candy flavored);
2.
fails to give a bond; and
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3.
is incompetent.
Q: In the course of the administratorship, when one has already be appointed, can he be removed? On what grounds?
A: Yes. Rule 82: Revocation of Administration, Death, Resignation and Removal of Executor or Administrator.
Sec. 2. Grounds:
1.
neglect to render accounts within 1 year or when the court directs;
2.
neglect to settle the estate according to the Rules;
3.
neglect to perform an order or judgment of the court or a duty expressly provided by these rule;
4.
absconding; or
5.
insanity or incapability or unsuitability to discharge the trust.
Q: If a special administrator is appointed because the regular administrator has a claim against the estate, what happens
to the regular administrator?
A: The regular administrator is not removed by the appointment of the special administrator because the regular
administrator has a claim under Sec. 8 of Rule 86. The special administrator only has a specific function which is only to
work on the claim of the regular administrator.
The executor of an executor cannot be appointed as executor of the principal testator.
Example: Richard is the testator. He appointed Piolo as his executor. Later on Piolo died. In the will of Piolo, he
appointed Sam as his executor. Sam cannot be the executor of the estate of Richard.
Reason: An executor takes charge of the estate. If you are an executor and you died and you have an own estate and
the executor of your own estate will now execute the estate of your testator that appointed you, there will be conflict of
interest (Magkakaroon ng sama sama yung estate. Magkaka halo halo). To avoid possible corruption in the
administration of ones estate.
Q: What are the duties of a special administrator?
A: Sec. 2, Rule 80:
1.
possession and charge of the properties;
2.
preserve the properties;
3.
commence and maintain a suit for the estate;
4.
sell only:
a.
perishable property; and
b.
those ordered by the court
5.
pay debts only as may be ordered by the court.
Q: Can he encumber the property of the estate through lease?
A: It depends. If the lease is not for more than one (1) year, he can because it would fall under acts of administration.
Beyond that, it is already an act of disposition
Q: If the court appoints Mr. X as special administrator, is the order final and appealable?
A: No. It is only interlocutory and unappealable because if you appeal the appointment of a special administrator, there
will be no end to the settlement of the estate.
The special administrator is likewise required to put up a bond.
Q: Suppose the testator in naming an executor of his estate specifically states there that he should serve as administrator
without a bond. Can the court nonetheless require a bond?
A: Yes. The court has a very wide discretion.
Once a regular administrator is appointed, the continuation of the duties and functions of a special administrator will now
reside in the special administrator. But always remember that if it is an act of disposition or conveyance, which cannot be
done by an appointed executor or administrator without permission of the court. You always file a motion for leave of court
to sell a specific property and this is part of your accounting one year after.
Accounting is one of the principal duties of an administrator. His first duty is to prepare an inventory within three (3)
months from appointment and within one (1) year, prepare an accounting of his administratorship and the bond that he put
up is precisely to answer for the misadministration.

Who may file for the allowance of will?


Any party who has direct and material interest in the will or estate consisting of:
D- Devisee
E- Executor
L- Legatee
T- Testator
A- Any other person interested in the estate
Why may be disqualified?
Here, you have to consider the last person allowed filing, Any other person INTERESTED IN THE ESTATE which
means any person who would be benefited by the estate such as an HEIR or one who has a claim against the estate,
such as CREDITOR. Hence, those not having such qualification may be disqualified to file for the allowance of the will.
Situation: If A executed the will and in his will, he named B as devisee, C as legatee and spurious son D, so as W as
sister.
Who among the persons stated in the will may file a petition?
All except W because the latter cannot file because under the Rule on Succession, a sister is not one in which will be
inherited by the decedent unless the spurious son is not included in the facts.
What are these concepts referring to?
1.
No witness rule
a.
This is only applicable in case there is a lost or destroyed holographic will or the testator
probated his own holographic will. General rule: A holographic will if destroyed CANNOT be
probated. Except: If there exists a photostatic or Xerox copy thereof.
2.
One witness rule
a.
In probating holographic will or notarial will and there is no contest thereof.
3.
Two witness rule
a.
In case of a loss or destruction of notarial will, for the purpose of establishing the execution and
validity thereof, NO NOTARIAL WILL SHALL BE PROVED in circumstances mentioned, when
the will is proved to have been in existence at the time of death of the testator or is shown to
have been fraudulently or accidentally destroyed in the lifetime of the testator without his
knowledge, UNLESS its provisions are clearly and distinctly proved by at least 2 credible
witnesses. If proved, the provisions thereof must be distinctly stated and certified by the Judge
under the seal of the court and the certificate must be filed and recorded.
4.
Three witness rule
a.
Required if someone else filed the probate of the will. If a holographic will is contested, the
same shall be allowed if at least three (3) witnesses who know the handwriting of the
testator and signature. Otherwise, an expert witness is required.
5.
Four witness rule
a.
In case of notarial will to be probated, whether contested or not, referring to the number of
subscribing witnesses. It is required that all the subscribing witnesses and the notary in case
wills executed under Civil Code.
What are the grounds for Disallowing Wills?
F- If the will is not executed and attested as required by law; formalities thereof
I- If the testator was insane or otherwise mentally incapable to make a will, at the time of its execution
D- If it was executed under duress, or the influence of fear or threats
U- If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person
for his benefit
S- If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will
at the time of fixing his signature thereto
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RULE 78- LETTERS TESTAMENTARY AND LETTERS OF ADMINISTRATION, WHEN AND TO WHOM ISSUED
RULE 77- ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE
THEREUNDER
What is the rationale for the re-probate?
This is because the Philippine courts do not recognize foreign judgment, and such that probate of the will abroad is one
kind of a foreign judgment.
How will this be enforced in our jurisdiction?
In relation to Rule 39, Section 48, the effect of a judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order will be;

1.
2.

Conclusive upon the title to the thing- in case of a judgment or final order upon specific thing;
Presumptive evidence of a right as between the parties and their successors in interest by subsequent titlein case of judgment against a person.

In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or fact.

What if the probated will abroad is not established as a fact of such probate, what laws will apply?
The doctrine on processual presumption will be applicable, in a sense that foreign law is considered as the same as that
of the domestic law
Which court has jurisdiction for re-probate of will?
It is in the RTC because the subject matter, that is, probate of will (considered as foreign judgment), is incapable of
pecuniary estimation.
Where is the venue?
It is in the place of final, and actual abode of the decedent. In the absence of residence, the place where any of the
property is located to the exclusion of other venues. EXCLUSIONARY RULE STILL APPLIES HERE.
Who may file?
Any person interested in the estate.
In the petition for re-probate, what should be alleged?
1.
That the testator was domiciled in a foreign country.
2.
That the will has been admitted to probate in such country.
3.
That the foreign court was, under the laws of said foreign country, a probate court with jurisdiction over
the proceedings.
4.
The law on probate procedure in said foreign country proof of compliance therewith.
5.
The legal requirements in said foreign country for the valid execution of the will.
There should be appointment of ancillary administrator (The administrator appointed to take charge of the properties
in the Philippines, domestic) and domiciliary administrator (The administrator domiciled in foreign country)
Effects of the allowance of a will under this Rule:
1.
The will shall be treated as if originally proved and allowed in Philippine courts.
2.
Letters testamentary or administration with a will annexed shall extend to all estates in the Philippines.
3.
After payment of just debts and expenses of administration, the residue of the estate shall be disposed of as
provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another
state or country.

What is Letter Testamentary and Letter of Administration?


Letter Testamentary- It is a process in which there is an appointment of an executor.
Letter of Administration- It is a process in which there is no appointment of an executor
Can a letter of administration be issued even if a will provides for executor?
Yes. Section 4 hereto provides that a letter of administration may be issued even if there exist a will designating an
executor, if the latter is incompetent, refuses to accept the trust and fails to give a bond.
When letters of administration be granted?
1.
If no executor is named in the will,
2.
or the executor/s are incompetent, refuse to accept the trust or fails to give a bond,
3.
or a person dies intestate.
To whom letters of administration granted?
There is preference of persons allowed by Rules, as follows:
1.
To the surviving spouse, or next of kin, or both, in the discretion of the court, or their nominee, if competent
and willing to serve.
2.
In default of the foregoing, to one or more of the principal creditors, if competent and willing to serve.
3.
In default of the preceding, to such other person as the court may select.
Who are incompetent to serve as executor or administrator?
They could be either of the following:

1.
2.
3.

A minor (Obviously, a minor is incapacitated to manage the trust)


A non-resident of the Philippines (The reason for disqualifying such is because it would be impossible for
such person not residing therein to administer the estate of the deceased or be around to satisfy for the
duties of an executor or administrator)
A person in the opinion of the court is unfit to execute the duties of the trust by reason of:
a.
Drunkenness (Such extent as would affect the capacity of a person by reason thereto, in
managing the trust with respect to such estate)
b.
Improvidence
c.
Want of Understanding or Integrity

d.

By reason of conviction of an offense involving moral turpitude (Remember that this ground
pertains only to an OFFENSE, not a CRIME unlike in Adoption, in this case, it will pertain to
some offenses relating to immorality, say, urinating in public)
The executor of an executor shall not administer the estate of the first testator (This disqualification is in order to prevent
possible conflict of interest or commingling of estates of the two testators. An illustration will be in that, if A is the first
testator, who appointed B as his executor in the formers will, B died with an estate appointing C as his executor. In this
case, C cannot be allowed to administer the estate of A because he is now managing the estate of B as the testator)
Upon, issuance of those letters (Letters testamentary and Letters of administration), what will courts do?
Under Rule 86 (Claims Against Estate), immediately after granting letters, the court shall issue a notice requiring all
persons having money claims against the decedent to file them in the office of the clerk of court of said court. And it will
now be the duty of every executor or administrator, after the notice to creditors is issued, to cause the same to be
published in 3 WEEKS SUCCESSIVELY in a newspaper of general circulation in the province and to be posted for the
same period in 4 public places in the province and 2 public places in the municipality where the decedent last resided.
Can Letters testamentary be objected to?
Yes, it may be objected and whatever resolution or resolution with that respect is FINAL AND APPEALABLE. Hence, this
made true the existence of MULTIPLE APPEALS in Special Proceedings. In that case, a RECORD ON APPEAL is
required to be filed since each part is complete in itself, say the Settlement, Probate or Appointment of Administrator. But
with respect to SPECIAL ADMINISTRATOR, it would be a different remedy, because the appointment of the same is held
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INTERLOCUTORY, hence, UNAPPEALABLE and the remedy therefrom is PETITION FOR CERTIORARI alleging grave
abuse of discretion.
RULE 79- OPPOSING ISSUANCE OF LETTERS TESTAMENTARY. PETITION AND CONTEST FOR LETTERS OF
ADMINISTRATION.
What is a Petition for Probate with a Will Annexed?
In this situation, there are two (2) petitions involved:

1.
2.

Petition filed by any interested person in a will stating the grounds why letters testamentary should not issue
to the persons named therein executors, or any of them, and at the same time,
Filing of Petition for Letters of Administration with the will annexed.

Who will file a Petition with a will annexed?


It is that person who has NO custody of the will or any person interested in a will.
What are the requirements for opposition to petition for administration?
1.
Filing of a written opposition by any interested person, contesting the petition on the ground of:
a.
Incompetency of the person for whom letters are prayed therein, or
b.
On the ground of the contestants own right to the administration.
2.
And may pray that the letters issue to himself, or to any competent person or persons named in the
opposition.
Can Letters of Administration be granted to stranger?
Yes. Letters of Administration may be granted to any qualified applicant, though it appears that there are other competent
persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of
letters to themselves.
RULE 80- SPECIAL ADMINISTRATOR
An administrator is of two kinds, what are they?
Special Administrator ( also of two kinds): With the will or Without a will annexed;
Regular Administrator
What is the distinction between an executor and an administrator?
The executor is the one appointed by the decedent as embodied in the will. The administrator is the one appointed by the
court if there in no will, or if there is a will but does not designate an executor, or even if there is an executor, the executor
refuses to accept the trust or fails to put up a bond. These are the requirements: He is either not qualified; he fails to
accept the trust; or he fails to put up a bond so an administrator may be appointed
When may a Special Administrator appointed?
A special administrator may be appointed when:
1. There is delay in granting letters testamentary or of administration by any cause including appeal from the allowance or
there is disallowance of the will.
2. The executor is a claimant of the estate he represents (Rule 86 Section 8)
What are the duties of Special Administrator?
He shall have the following duties:
1.
He shall take possession and charge of goods, chattels, credits, and estate of the deceased,
2.
He shall preserve the same for the executor or administrator afterwards appointed and for that purpose may
commence and maintain suits as administrator,
3.
He may sell only such,
a.
Perishable properties
b.
As the court orders to be sold.
4.
He shall be liable to pay any debts of the deceased is ordered by the court.

When will Special Administrator ceases to be such?


When questions causing the delay are decided and executors or administrators are appointed.
RULE 81- BONDS OF EXECUTORS AND ADMINISTRATORS
The bonds under Section 4 thereto for Special Administrator, shall be in a sum as the court directs conditioned that he will
make and return a true inventory of the properties in possession while in case of regular administrator, the bond will be
conditioned to the entire estate for its preservation. The regular executor may serve without a bond as directed by the
testator in the latters will or with only his individual bond conditioned only to payment of debts of the testator, but the
court may require such executor the filing of a further bond in case a change in his circumstances or for other
sufficient cause. Such latter bond is called STATUTORY BOND, as prescribed for by statutes and will continue so long
as the court has jurisdiction over the case.
What are the duties of executors and administrators?
1.
To make and return to the court, within 3 months, a true and complete inventory of all goods, chattels,
rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the
possession of any other person for him.
2.
To administer according to these Rules the estate, and from proceeds, to pay and discharge all debts,
legacies and charges on the same or such dividends declared.
3.
To render a true and just account of his administration to the court within 1 year and at any other time when
required by the court.
4.
To perform all orders of the court.
5.
Duty to sell, encumber or mortgage
6.
Duty for distribution of the estate remaining.

RULE 82- REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND
ADMINISTRATORS
When will administration be revoked?
Administration is revoked if a will is discovered.
When may a court remove an executor or administrator or accepts his resignation?
1.
If an executor or administrator neglects to render his account within 1 year and when required by court,
2.
If he neglects to settle estate according to the Rules,
3.
If he neglects to perform an order or judgment of the court or a duty expressly provided by Rules,
4.
When he absconds, or
5.
When becomes insane, or otherwise incapable or unsuitable to discharge the trust.
*When an executor or administrator dies, resigns or is removed, the remaining executor or administrator may
administer the trust alone UNLESS the court grants letters to someone to act with him. If there is no remaining
executor or administrator, administration may be granted to any suitable person.
The acts before revocation, resignation or removal are considered valid.

RULE 83- INVENTORY AND APPRAISAL; PROVISION FOR SUPPORT OF FAMILY


What are the other duties of executors or administrators?
1.
When 3 months after his appointment, he shall return to the court a true inventory and appraisal of all real
and personal estate of the deceased which has come to his possession or knowledge. In such
appraisement, the court may order one or more inheritance tax appraisers to give his or their assistance.
2.
To make an inventory of the assets of the administered estate, to the exclusion of wearing apparels of the
surviving husband or wife and minor children, the marriage bed and beddings and such provisions
and other articles for the subsistence of the family of the deceased.
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3.

To give allowance to widow and minor children, NOT TO GRANDCHILDREN.

What will be done if such allowance has to be given but there isnt enough cash by the estate?
This time, a sale can be done, say to pay taxes.
Q: Who are entitled to allowance during proceedings?
1.
legitimate surviving spouse; and
2.
children of the decedent (legitimate & illegitimate children)
Relate to Art. 194, Family Code: Children, even if 18 years of age are still entitled to support from the estate. Read Ruiz
Case
RULE 84- GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS
What are the powers of executors or administrators of the estate?

1.
2.
3.

To have access to and examine and take copies of books and papers relating to partnership in case of a
deceased partner.
To examine and make invoices of the property belonging to partnership in case of deceased partner.
To maintain in tenantable repairs, houses and other structures and fences and to deliver the same in such
repair to the heirs or devisees when directed so to do by the court.

4.

To make improvements on the properties under administration with necessary court approval except for
necessary repairs.
5.
To possess and manage the estate when necessary for:
a.
Payment of debts
b.
Payment of expenses of administration.
What are the restrictions on the Power of an Administrator or Executor?
1.
Cannot acquire by purchase the property under administration.
2.
Cannot borrow money without authority of the court.
3.
Cannot speculate with fund under administration.
4.
Cannot lease the property for more than 1 year.
5.
Cannot continue the business of the deceased unless authorized by court.
6.
Cannot profit by the increase or decrease in the value of the property under administration. (Rule 85, Section
2)
RULE 85- ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS
Case: Lacson vs. Hon. Reyes (RTC of Cavite), and Atty. Ephraim Serquina, February 26, 1990, J. Sarmiento.
Facts: Atty. Ephraim Serquina petitioned the respondent court for the probate of the last will and testament of Carmelita
Farlin, the same having been allowed without opposition. Serquina filed a motion for attorneys fees against petitioners,
herein heirs of Farlin alleging that the heirs agreed to pay for his legal services rendered the sum worth 68,000. It was
granted; hence, Serquina moved for its execution. Petitioners filed a notice of appeal in appealing to such decision. But
trial court dismissed the same arguing that a record on appeal is required and not a notice of appeal. Petitioner, on the
other hand that it should be admitted as an appeal although it falls short of the requirements by the Rules and that the trial
court gravely abused discretion in granting such motion for attorneys fees being contrary to Rule 85, Section 7 of the
Rules of Court. However, Atty Serquina opposed such allegation and opined that in collecting attorneys fees, he was
not acting as executor of Farlins will because there was no letters testamentary that has been issued.
Issues:
(1) Whether a notice of appeal will do in this case.
(2) Whether Atty. Serquina can be granted his motion for attorneys fees.

Held:
(1) Yes. It has been held that in appeals arising from an incident in a special proceeding, a record on appeal is necessary,
otherwise, the appeal faces a dismissal. It has likewise been held, however, that in the interest of justice, an appeal,
brought without a record on appeal, may be reinstated under exceptional circumstances. Thus:
xxx xxx xxx
It is noted, however, that the question presented in this case is one of first impression; that the petitioner
acted in honest, if mistaken, interpretation of the applicable law; that the probate court itself believed that the
record on appeal was unnecessary; and that the private respondent herself apparently thought so, too, for
she did not move to dismiss the appeal and instead impliedly recognized its validity by filing the appellee's
brief.
In view of these circumstances, and in the interest of justice, the Court feels that the petitioner should be
given an opportunity to comply with the above-discussed rules by submitting the required record on appeal
as a condition for the revival of the appeal. The issue raised in his appeal may then be fully discussed and, in
the light of the briefs already filed by the parties, resolved on the merits by the respondent court.
In the instant case, the Court notes the apparent impression by the parties at the outset, that a record on appeal was
unnecessary, as evidenced by: (1) the very holding of the respondent court that "[i]t is now easy to appeal as there is no
more need for a record on appeal . . . [b]y merely filing a notice of appeal, the appellant can already institute his
appeal . . . ;" (2) in its order to amend notice of appeal, it did not require the appellants to submit a record on appeal; and
(3) Atty. Serquina interposed no objection to the appeal on that ground.
(2) No. It is pointed out that an attorney who is concurrently an executor of a will is barred from recovering attorney's fees
from the estate. The rule is therefore clear that an administrator or executor may be allowed fees for the necessary
expenses he has incurred as such, but he may not recover attorney's fees from the estate. His compensation is fixed by
the rule but such a compensation is in the nature of executor's or administrator's commissions, and never as attorney's
fees. In one case, 18 we held that "a greater sum [other than that established by the rule] 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.'" It is also left to the sound discretion of the court. With respect to
attorney's fees, the rule, as we have seen, disallows them. Accordingly, to the extent that the trial court set aside the sum
of P65,000.00 as and for Mr. Serquina's attorney's fees, to operate as a "lien on the subject properties," the trial judge
must be said to have gravely abused its discretion (apart from the fact that it never acquired jurisdiction, in the first place,
to act on said Mr. Serquina's "motion for attorney's fees").
The next question is quite obvious: Who shoulders attorney's fees? We have held that a lawyer of an administrator or
executor may not charge the estate for his fees, but rather, his client. Mutatis mutandis, where the administrator is himself
the counsel for the heirs, it is the latter who must pay therefor.
The records also reveal that Atty. Serquina has already been paid the sum of P6,000.00. It is our considered opinion that
he should be entitled to P15,000.00 for his efforts on a quantum meruit basis. Hence, we hold the heirs liable for
P9,000.00 more.
General rule: The executor or administrator is accountable for the whole estate of the deceased.
Exception: He is not accountable for properties which never came to his possession.
Exception to the exception: When through untruthfulness to the trust or his own fault or for lack of necessary action, the
executor or administrator failed to recover part of the estate which came to his possession.
What will be the compensation for executor or administrator if there is no provision in the Will?

1.
2.

3.

P4.00 a day for the time actually and necessarily employed; OR


Commission
a.
2%- first 5,000
b.
1%- >5,000 but not >30,000
c.
1%- >30,000 but not >100,000
d.
%- >100,000
Greater sum may be allowed if:
a.
The estate is large;
b.
The settlement has been attended with great difficulty;
c.
The settlement has required a high degree of capacity of the executor or administrator.
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When will the executor or administrator render account?


General rule: Within 1 year from the time of receiving letters testamentary or of administration.
Exception: An extension of time is allowed by the court for presenting claims against or paying debts or for disposing of
the estate, he shall render the same as the court may require until the estate is wholly settled.
Will an examination with respect to account on oath be mandatorily done?
No. Because it can be dispensed with when:
1.
No objection is made to the allowance of the account.
2.
Its correctness is satisfactorily established by competent proof.
*The heirs, legatees, devisees and creditors have the same privilege of being examined.

RULE 86- CLAIMS AGAINST ESTATE


What may be claimed against the estate?
1.
Contractual money claims;
2.
Funeral expenses;
3.
Expenses for the last illness; and
4.
Judgments for money.
Situation: A was hospitalizing at St. Lukes Hospital and finally died leaving behind lots of hospital expenses.
How will St. Lukes collect that? It has to file a claim against the estate of A.
Is this claim a separate and distinct petition from settlement of the estate of A? No, it is ancillary to testate or
intestate proceeding. Hence, if there is settlement, you can file it in that court having jurisdiction. However, if there was
none or there was no testate or intestate proceeding instituted yet, then you can file for the settlement of estate of A as a
CREDITOR, well under Any person interested in the estate.
Judgment for money
This is illustrated in a scenario wherein H, in his lifetime, had incurred obligation against, or he is obliged to do something,
but died eventually. The person entitled to any against H cannot sue H personally, as the latter already died. But what can
he do is to file a claim against the estate of H.
*Pertinent provision- Section 20, Rule 3 of the Rules of Court
When the action is for recovery of money arising from contract, express or implied, and the defendant dies before entry
of final judgment in the court in which the action was pending at the time of such death, it shall not dismissed but shall
instead be allowed to continue UNTIL ENTRY OF FINAL JUDGMENT. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of a
deceased person.
Illustrate: A files B for a sum of money based on a contract between them as parties. B, however died. The case was not
dismissed but instead proceeded up until entry of judgment. In entry of judgment, no more appeal is required, much
more, Motion for Reconsideration or Motion for New Trial. With that period of time, judgment already becomes executory.
However, instead of proceeding to Rule 39 which is execution of an executory judgment, in this case, a claim
against the estate under Rule 86 applies, falling under JUDGMENT FOR MONEY.
How will you distinguish money claims under Section 5 of Rule 86 from judgment for money? For money claims
under Rule 86 Section 5, it could be filed even if not due or contingent, much more those already due. However, for
judgment for money, it presupposes that the same has already been adjudicated.
What are contingent claims?
These are conditional claims that are subject to the happening of a future uncertain event. *Claims not yet due or
contingent may be approved at their present value.

What is a deficiency judgment in this respect?


It is a contingent judgment and therefore, must be filed with the probate court where the settlement of the deceased is
pending, within the period fixed for the filing of claims.
Example: You have a millionaire uncle, and before he died he made a promise to give you something when you complied
with his condition. However, before the happening of the condition, he died. The condition was for you to pass the bar.
What happens to contingent claim then?
You can pursue the same by mere affidavit, showing the oral contract you had with your uncle, although the same is
unenforceable, being not in writing.
Is this a valid claim against the estate?
Yes, because the money claim against the estate could be due, undue or even contingent.
Suppose they are not due yet, can they be filed against the estate?
Yes, since whether due, not yet due, or contingent, you can file against the estate.
Statute of Non-claims
What is Statute of Non-Claims?
It is the period fixed by the Rule for the filing of the claims against the estate.
When do you file it?
You can file it not more than 12 months nor less than 6 months after the date of first publication. Otherwise it is deemed
waived which is also known as the STATUTE OF NON- CLAIMS.
Is there an exception to this strict period rule?
Yes, with respect to BELATED CLAIMS. These are claims not filed within the original period fixed by the court. However,
on application of a creditor who has failed to file his claim within the time previously limited at ANY TIME BEFORE AN
ORDER OF DISTRIBUTION IS ENTERED, the court may, for cause shown and on such terms as are equitable, allow
such claim to be filed within a time NOT exceeding 1 month from the order allowing belated claims. This is also in the
form of COUNTERCLAIM. The obligation by reason of mortgage due from estate is distinguished between Rule 86,
Section 7, in which the estate is a mortgagor while in Rule 87 Section 5, the estate is a mortgagee.
What is the relationship between a statute of non-claims and limitations?
A statute of non claims supersedes a statute of limitations. The statute of limitation is a period provided for in the Civil
Code where actions prescribe. An ordinary prescriptive period in a civil case is 10 years from accrual. A statute of
limitation is not applicable if in conflict with statute of non-claim. This is precedence of statute of non-claims than statute of
limitations. The statute of non-claims prevails over the statute of limitations. However, the statute of non- claims will not
apply if there is no settlement proceedings.
Illustration: Mr. A took the bus, Philippine Rabbit, owned by Mr. B to Baguio. He never reached his destination because the
bus fell over a ravine on January 5, 1990. That is the date of the accrual of the cause of action (Jan. 5, 1990).
Can Mr. A file a case against Mr. B on March 2001?
No, because the action is barred by the statute of limitations.
Suppose Mr. B died in 1995. What should A do?
File a claim against the estate within a period of not less than 6 mos. and not more than 12mos from the date of first
publication. So, the presumption here is that there is a settlement of the estate of B. Otherwise, the statute of non-claims
will not apply.
Suppose notice was given on March 1, 1995. So you have 6 months and it was published March 20, you have not
less than 6 months from March 20, nor more than up to the 19th of March 1996. Can you file it in 1998?
No, because it is beyond the statute of non-claims. Even if it is within the statute of limitations, you can no longer file it
because it is beyond the statute of non-claims. That is the meaning of the statute of non-claims supersedes the statute of
limitations.

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On the other hand, if B died in 1999 of December, you have only have up to January of 2000 because the action has
already prescribed, the ordinary action. The statute of non-claims prevails over the statute of limitations. However, the
statute of non- claims will not apply if there is no settlement proceeding.

What is the time-frame in Section 2 of Rule 86?


The court is bound to give notice to those who have claims against the estate. The notice here is a sort of publication
which is NOT the same as publication in probate since in the latter the notice refers to NOTICE OF HEARING.
How will you pursue your money claim?
It is provided for under Section 7 thereto, which a claim must be filed with the clerk of court with affidavit supported by
vouchers. The clerk of court will now relay to executor or administrator who has duty to file his answer within 15 days
whether he agrees or not.
How was this treated by the court?
If there is no opposition or with admission, pay 50,000 to set aside the claim. While pay 150,000 to the court
and send the 150,000 the notice of hearing with respect to 150,000.The court will then decide if valid or not.
If there is contest by any other heir, payment of 50,000 should be made but WILL IN NO WAY CREATE
PREFERENTIAL RIGHT NOR LIEN ON ESTATE.
What happens next?
The distribution will commence at the proper time, in due course of administration. This is so because distribution only
arises when everything else is paid.
STATUTE OF LIMITATIONS: prescriptive period in the Civil Code.
FCC vs Santibanez
Q: What were the issues assigned as errors before the CA?
A: Issues
1.
Whether or not estoppel applies
2.
Whether or not the extra judicial partition bet among the heirs were valid
3.
Whether or not it is necessary for a partition to be approved by the probate court
4.
Whether or not the respondent could be held jointly liable with Santibanez.
Testate Proceeding.
Provisions on a holographic will. It wasnt clearly stated in this case.
The parties entered into an agreement.
Q.
A.

Can prospective heirs whether under the testate or intestate enter into a partition over the properties belonging to
the estate?
There can be no partition until and unless the will is allowed or probated.

Q. Was it really a partition?


A: According to the SC they may act to put an end in any indivision is considered and deemed to be a partition.
There can be no partition in a testate proceeding before the will is allowed.
Q: What is the rationale behind that?
A: Because the SC said if it is allowed then you are divesting the court of its jurisdiction over the property partition. Bec it
is partition, it amounts to distribution. Distribution is the final stage in a settlement proceeding and there will be no
distribution of the estate until and unless all debts has been paid. The court looks into it as an act of divesting of its
jurisdiction.

Q: Can principle of estoppel be applied?


A: The SC said the principle of estoppel will not apply because the basis which is the extra judicial partition is in fact void,
a void act of declaration or omission of a party cannot be used as evidence against the party. If the act is null and void,
estoppel will not arise therefrom.
Q: Are the heirs liable?
A: The SC said he did not even established the fact that you are the proper party in interest because Union Bank did not
show any evidence to prove that you are really the affiny.
Settlement of Estate
Sec 7. Mortgage debt due from estate
Remedy
1.
Claim against the estate
after all the debts has been paid; upon distribution
2.
-

Foreclose the mortgage - judicial


deficiency judgement by motion only in the same action

3.
-

Extrajudicial foreclosure
you solely rely on his mortgage, you dont get any deficiency judgement

Q: Sec 9 How to file a claim


A: In form of a simple application form
1.
Deliver the claim to the clerk of court
2.
Serve a copy on the executor or administrator
3.
if the claim is due, it must be supported by affidavit stating the amount due and the fact that there has been no
effects.
4.
if the claim is not due or contingent, it must be accompanied by affidavit stating the particulars
Sec 10 Answer of executor or administrator
1.
Executor may file answer within 15 days from the service of claim
2.
Answer must set forth claims which decedent has against claimant or else it will be barred forever.

RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS


Claims that survive
Rule 87, Section 1
Actions that may be commenced directly against the
executor and administrator
1.
Recovery of real/personal property (or any
interest therein)
2.
Enforcement of lien thereon
3.
Action to recover damages arising from tort
4.
Action for revival of money judgment may be
filed against administrator to preempt
prescription of judgment

Claims that do not survive


Rule 86, Section 5
Actions that may be commenced against the estate of the
deceased
1.
Money claims, debts incurred by the
deceased during his last illness arising from
contract
2.
Claims for funeral expenses or for the last
illness of the decedent
3.
Judgment for money against decedent

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We have limited claims against the estate to the following:


1. Contractual money claims;
2. funeral expenses;
3. expenses for the last illness; and
4. judgments for money.
These are considered as contractual money claims under Rule 86. When you go to Rule 87, you will note that you cannot
file a claim against the estate if it is claimable under Rule 86. So contractual money claims, hindi. That is why in Rule 87,
you are also limited to the following claims or actions:
1.
Recovery of real or personal property;
2.
Recovery of interest or lien therein;
3.
Judgment arising from injuries
When can the heirs sue on behalf of the estate of the deceased?
It is when an order of the court assigning such lands to such heir or devisee or until the time allowed for paying debts has
expired although an executor or administrator is appointed and assigned the trust.
When can an executor or administrator compound with the debtor of the deceased?
Within the approval of the court, an executor or administrator may compound with the debtor of the deceased for a debt
due, and may give a discharge of such debt on receiving a just dividend of the estate of the debtor.
Q: In actions by and against executors and administrators, where will the executor or administrator get his money to
satisfy your prayer in your action? Hindi ba from the estate? So why not against the estate, bakit against the executor or
administrator?
A: Rule 86 is not an action tapos na dyan yung action, it is already through. In 87, it is a separate and distinct action,
so that if it is a complaint, you always file it against the executor or administrator. Pero dito, tapos na yan. Hence, dahil
tapos na, it is urgent urgency of the subject matter so the presumption in 86, that there must an estate proceeding,
whether testate or intestate without that , you cannot file any claim. Suppose wala, ano gagawin mo? Iinitiate the
testate or intestate proceeding so that you file a claim. It is not an independent action here.
But in 87, it is an independent action. Meron bang testate or intestate proceeding? Not necessarily. You might say, bakit
executor, administrator? Kaya nga or because when you say executor, meron yan. Kung walang executor, administrator.
You mean to say that there can be no administrator without an estate proceeding? No. There can be an administrator
even if there is no estate proceeding because you can even undertake extrajudicial settlement of the estate. In
extrajudicial settlement there can be an agreement by and between the parties as to the administrator of the estate. The
estate does not have a separate and distinct personality. It is only an entity authorized by law in special cases.
What will the court do when an executor or administrator, heir or other interested in the estate of the deceased
complains of a person being suspected of having concealed, embezzled, or conveyed away any of the property of
the deceased, or when such person is in possession or has knowledge of any deed, conveyance, bond, contract
or other writing which contains evidence of or tends to disclose the right, titled, interest or claim of the deceased
to real or personal property or the will of the deceased?
The court may cite such suspected person to appear before it any may examine him on oath on the matter of such
complaint; and if the person so cited refuses to appear, or to answer on such examination or such interrogatories as are
put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court.
The interrogatories put any such person, and his answers thereto, shall be in writing and shall be filed in the clerk's office.
What if that person in the above scenario, embezzled or alienates any part of the estate before letters are issued,
what will be his liability?
Such person shall be liable to an action in favor of the executor or administrator of the estate for double the value of the
property sold, embezzled, or alienated, to be recovered for the benefit of such estate.
What if the person who fraudulently conveyed the property of the estate is the deceased in his lifetime with intent
to defraud his creditors that time of alienation, what will the executor or administrator do?
When the following appears:

1.

When there is a deficiency of assets in the hands of an executor or administrator for the payment of debts
and expenses of administration, and
2.
The deceased in his lifetime had conveyed real or personal property, or a right or interest therein, or an debt
or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or
3.
Had so conveyed such property, right, interest, debt or credit that by law the conveyance would be void as
against his creditors, and the subject of the attempted conveyance would be liable to attachment by any of
them in his lifetime,
The executor or administrator may commence and prosecute to final judgment an action for the recovery of such property,
right, interest, debt, or credit for the benefit of the creditors; but he shall not be bound to commence the action unless on
application of the creditors of the deceased, not unless the creditors making the application pay such part of the costs and
expenses, or give security therefor to the executor or administrator, as the court deems equitable.
With respect to the above scenario, when may creditor bring an action?
It is when there is such a deficiency of assets, and the deceased in his lifetime had made or attempted such a
conveyance, as is stated in the last preceding section, and the executor or administrator has not commenced the action
therein provided for, any creditor of the estate may, with the permission of the court, commence and prosecute to final
judgment, in the name of the executor or administrator, a like action for the recovery of the subject of the conveyance or
attempted conveyance for the benefit of the creditors.
In relation to the above prosecution by creditor, are there any requirements with that respect?
Yes. The following must be complied with by the creditor:
1.
The creditor must file in a court a bond executed to the executor or administrator, in an amount approved by
the judge,
2.
This bond must be conditioned to indemnify the executor or administrator against the costs and expenses
incurred by reason of such action.
3.
Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other
expenses incurred therein as the court deems equitable.
4.
Where the conveyance or attempted conveyance had been made by the deceased in his lifetime in favor of
the executor or administrator, the action which a creditor may bring shall be in the name of all the creditors,
and permission of the court and filing of bond as above prescribed, are not necessary.
What about if there is complaint by the executor or administrator against person entrusted with the estate to be
compelled in rendering account for the estate, what will the action of the court with that respect?
The court may cite a person entrusted by an executor or administrator with any part of the estate of the deceased to
appear before it, and may require such person to render a full account, on oath, of the money, goods, chattels, bonds,
account, or other papers belonging to such estate as came to his possession in trust for such executor or administrator,
and of his proceedings thereon; and if the person so cited refuses to appear to render such account, the court may
punish him for contempt as having disobeyed a lawful order of the court.
In actions by and against executors and administrators, where will the executor or administrator get his money to
satisfy your prayer in your action? Is it not from the estate also? Hence, why not make it filed BY THE ESTATE
and not BY THE EXECUTOR OR ADMINISTRATOR?
The reason is this, since Rule 86 is not an action, it presupposes that the action was already done in this Rule. However,
in Rule 87, it is a separate and distinct action, so that if it is a complaint, you always file it against the executor or
administrator. Rule 87 is but an independent action. It is not even necessary here if there is testate or intestate
proceeding. Hence, why by executor OR administrator?
You mean to say that there can be no administrator without an estate proceeding?
No. There can be an administrator even if there is no estate proceeding because you can even undertake extrajudicial
settlement of the estate. In extrajudicial settlement, there can be an agreement by and between the parties as to the
administrator of the estate. The estate does not have a separate and distinct personality. It is only an entity authorized by
law in special cases.
SUE AND BE SUED
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As a general rule, the estate cannot sue and be sued. It can only be sued in certain instances. It cannot be sued because
under Sec.1, Rule 3 (Who may be parties), it is only an entity authorized by law. That is why you file against the executor
or administrator. Remember that an executor or administrator is a natural person. Iba yun sa Guardian ha? A guardian
can be a juridical person.. only guardianship over the property of the ward. In guardianship over the ward, the guardian
cannot be an artificial being or corporation.

The remedy is to give a bond. If the asset to be distributed is quite important, such as real property, then you give the
asset.

Q: Compare Sec. 7, Rule 86 ( Mortgage debt due from estate) with Sec. 5, Rule 87 (Mortgage due estate may be
foreclosed).
A: The parties under Sec. 7, Rule 86 are the estate of the decedent and the creditor. The creditors may have affirmative
remedies as to their claims against the decedent such as going after his estate. The estate is the debtor, the mortgagor
(mortgage due from the estate). As compared to Sec. 5, Rule 87, the estate is the mortgagee.
Q: Is the estate, under Sec. 5, Rule 87 allowed the alternative remedies in Sec 7, Rule 86?
A: NO. He is only allowed one remedy which is foreclosure.
After all these claims have been settled, all debts have been paid, you go now to distribution. This is the last stage. But in
the distribution of the estate, what Rule should be followed? First, before distribution, there shall be payment of debts.
Q: What are these debts? There are only 5 specific kinds of debts.
A:
1.
Debts of the decedent;
2.
Funeral expenses;
3.
Expenses for administration;
4.
Allowance for the widow; and
5.
Taxes.
Q: Under the rules on preference of credit, taxes are given priority. Is there an
exception? What did you Labor Law teacher teach you about that?
A: PNB vs. NLRC case (March 1990): In case of liquidation of the assets of the corporation, even taxes give way to
unpaid salaries and wages. But in all other instances, palaging ang gobyerno ang uunahin. Sabi nga sa mga Reviewers,
pag wala ka na daw maisasagot sa question sa taxation, taxation is the lifeblood of the government.
Pag hindi mo mabayaran avail of Rule 89: Sales, Mortgages, and other Encumbrances of the Property of the Deceased.
The fundamental reason for sales, mortgages, and other encumbrances is to pay off debts.
Q: The estate is worth one million (P1M). After payment of debts, all that had been paid amounted to P500T. How much
is left for distribution?
A: Only P500T.
Q: If there are 5 compulsory heirs, devisees and legatees, A, B, C, D, E, and under the will, A should receive P500T; BP100T; C- P100T; D and E- P50T each and what remains is only P500T, how will you distribute the estate?
A: Distribute the estate by ratio and proportion.
Q: Suppose the asset was P10M gross value and the obligation was only P1M. You have P900T left but the will says to
distribute only P500T; P100T; P100T and P50T to the last two, may sobra ka, (that goes to the pocket of the lawyer?) it
should be distributed in accordance with intestate succession but also pro rata. A: Remember we are talking here of the
remainder, wala nang babayaran. We have also studied the Rules on contingent claims, under Sec. 4, Rule 74 ( Liability
of Distributees and Etate), the two-year lien.
Q: Can the estate be distributed even before payment of debts?
A: General Rule: No.
Exception: Assets may be distributed even prior to payment of debts provided the distributee first gives a bond.
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RULE 88- PAYMENT OF THE DEBTS OF THE ESTATE


When should executor or administrator pay debts of the estate?
It is after hearing all the money claims against the estate, and after ascertaining the amount of such claims, it appears that
there are sufficient assets to pay the debts. Before the expiration of the time limited for the payment of the debts, the court
shall order the payment thereof.
What if an appeal was duly taken from the decision of the court concerning a claim, what will be its effect for
such order of payment and distribution of assets?
The court may suspend the order for the payment of the debts or may order the distributions among the creditors whose
claims are definitely allowed, leaving in the hands of the executor or administrator sufficient assets to pay the claim
disputed and appealed. When a disputed claim is finally settled the court having jurisdiction of the estate shall order the
same to be paid out of the assets retained to the same extent and in the same proportion with the claims of other
creditors.
What if the testator makes provision in his will about payment of debts, will this be respected and followed
accordingly?
Yes. If the testator makes provision by his will, or designates the estate to be appropriated for the payment of his debts,
the expenses of administration, or the family expenses, they shall be paid according to the provisions of the will.
However, when will this provision not used and what is the remedy if deficiency with respect to such provision in
the estate accrues?
If the provision made by the will or the estate appropriated, is not sufficient for that purpose, such part of the estate of the
testator, real or personal, as is not disposed of by will, if any shall be appropriated for that purpose.
What is the preferred part of estate of the deceased to be chargeable for debts of the deceased?
It is the personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and
expenses meaning, the decedents FREE PORTION shall first be chargeable for debts of the estate.
What if such free portion is not sufficient for payment of debts or if its sale would redound to the detriment of the
participants of the estate, what will be the remedy therefrom?
Now, the whole of the real estate not dispose of by will, or so much thereof as is necessary, may be sold, mortgaged, or
otherwise encumbered for that purpose by the executor or administrator, after obtaining the authority of the court therefor.
What if this will not be sufficient, what is then the remedy to pay all the debts of the estate?
Any deficiency shall be met by contributions in accordance with the respective contributive shares of the devisees,
legatees or heirs in possession of portions of the estate BEFORE THE DEBTS AND EXPENSES HAVE BEEN SETTLED
AND PAID and have become liable to contribute for the payment of such debts and expenses. The court may issue
execution if the case may require.
In Rule 86, we come to know that contingent claims exist and could be filed against the estate, how will the
executor or administrator allot for such claim?
The executor or administrator must retain in his hands sufficient estate to pay such contingent claim when the same
becomes absolute,
What if the estate becomes INSOLVENT, what will be the remedy?
1.
Preference of Credit shall be resorted to.
2.
However, if there are no assets sufficient to pay the credits of any one class of creditors after paying the
credits entitled to preference over it, each creditor within such class shall be paid a dividend in proportion to
his claim. *However, no creditor of any one class shall receive any payment until those of the preceding class
are paid.

3.

4.

If the insolvency pertains to a nonresident who has properties in the Philippines, the same shall be so
disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their
respective credits. (PRO-RATA)
If the insolvency pertains to a resident person in the Philippines but the claims has duly proved outside, the
court shall receive a certified list of such claims, when perfected in such country, and add the same to the list
of claims proved against the deceased person in the Philippines so that a just distribution of the whole estate
may be made equally among all its creditors according to their respective claims.
a.
* But the benefit of this and the preceding sections shall not be extended to the creditors in
another country if the property of such deceased person there found is not equally
apportioned to the creditors residing in the Philippines and the other creditor, according to their
respective claims.

What is the rule with respect to contingent claim becoming ABSOLUTE in 2 years allowed and paid?
1.
If such contingent claim becomes absolute and is presented to the court, or to the executor or administrator,
within two (2) years from the time limited for other creditors to present their claims:
a.
It may be allowed by the court if not disputed by the executor or administrator and,
b.
If disputed, it may be proved and allowed or disallowed by the court as the facts may warrant.
c.
If the contingent claim is allowed, the creditor shall receive payment to the same extent as the
other creditors if the estate retained by the executor or administrator is sufficient.
2.
But if the claim is not so presented, after having become absolute, within said two (2) years, and allowed, the
assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall
be distributed by the order of the court to the persons entitled to the same;
a.
But the assets so distributed may still be applied to the payment of the claim when established,
and the creditor may maintain an action against the distributees to recover the debt, and such
distributees and their estates shall be liable for the debt in proportion to the estate they have
respectively received from the property of the deceased.
What if after the first distribution of assets, the whole of the debts are not paid and if the whole assets are not yet
distributed or afterwards other assets come to the hands of the executor or administrator, what will the court do?
The court may from time to time make further orders for the distributions of assets.
What is the basis of payment to creditors?
It must be in accordance with the terms of such order by the court for such payment of debts.
Is the time for payment of debts and legacies fixed, or subject to extension, for how long, if any?
1.
If the payment of debts is done personally by the executor or administrator:
a.
On granting letters testamentary or administration, the court shall allow to the executor or
administrator a time for disposing of the estate and paying the debts and legacies of the
deceased, which shall not, in the first instance, exceed one (1) year; but the court may, on
application of the executor or administrator and after hearing on such notice of the time and
place therefor given to all persons interested as it shall direct, extend the time as the
circumstances of the estate require not exceeding six (6) months for a single extension not so
that the whole period allowed to the original executor or administrator shall exceed two (2)
years.
2.
If the executor or administrator dies, and the new administrator of the same estate is appointed:
a.
An application is still required and notice to be given of the time and place for hearing such
application so that the court may extend the time allowed for the payment of the debts or
legacies beyond the time allowed to the original executor or administrator, not exceeding six (6)
months at a time and not exceeding six (6) months beyond the time which the court might have
allowed to such original executor or administrator

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RULE 89- SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF THE DECEDENT
The fundamental reason for sales, mortgages, and other encumbrances is to pay off debts.
When will sale of personal estate of the deceased be allowed?
Upon the application of the executor or administrator, and on written notice to the heirs and other persons interested, the
court may order the whole or a part of the personal estate to be sold, if it appears necessary for the purpose of:
1.
paying debts,
2.
expenses of administration, or
3.
legacies, or
4.
preservation of the property.
When may the court authorize sale, mortgage or other encumbrance of REALTY of the estate for payment of debts
and legacies though PERSONALTY is not yet exhausted?
When any of the following appears:
1.
When the personal estate of the deceased is not sufficient to pay the debts, expenses of administration, and
legacies, or
2.
Where the sale of such personal estate may injure the business or other interests of those interested in the
estate, and
3.
Where a testator has not otherwise made sufficient provision for the payment of such debts, expenses, and
legacies,
The court, on the application of the executor or administrator and on written notice of the heirs, devisees, and legatees
residing in the Philippines, may:
a.
Authorize the executor or administrator to sell, mortgage, or otherwise encumber so much as may be
necessary of the real estate, in lieu of personal estate, for the purpose of paying such debts,
expenses, and legacies,
b.
If it clearly appears that such sale, mortgage, or encumbrance would be beneficial to the persons
interested; and
c.
If a part cannot be sold, mortgaged, or otherwise encumbered without injury to those interested in the
remainder, the authority may be for the sale, mortgage, or other encumbrance of the whole of such
real estate, or so much thereof as is necessary or beneficial under the circumstances.
What if the person in X, interested in the estate of H, wanted to prevent such sale, mortgage or encumbrance, can
he do so?
Yes. If that person does:
1.
Gives a bond, in a sum to be fixed by the court, conditioned to pay the debts, expenses of administration,
and legacies within such time as the court directs; and
2.
Such bond shall be for the security of the creditors, as well as of the executor or administrator, and may be
prosecuted for the benefit of either.
When may court authorize the sale of estate as beneficial to interested persons?
It is authorized upon application of the executor or administrator and on written notice to the heirs, devisees, and legatees
who are interested in the estate to be sold, authorize the executor or administrator to sell the whole or a part of said
estate, although not necessary to pay debts, legacies, or expenses of administration. However, such authority shall not be
granted if inconsistent with the provisions of a will. In case of such sale, the proceeds shall be assigned to the persons
entitled to the estate in the proper proportions.
What if there is an existing debt of such deceased to other countries, what will our court do?
The court here may authorize the executor or administrator to sell the personal estate or to sell, mortgage, or otherwise
encumber the real estate for the payment of debts or legacies in the other country, in same manner as for the payment of
debts or legacies in the Philippines.

Can our court also authorize sale, mortgage or other encumbrance of realty acquired on execution or
foreclosure?
Yes. The court may authorize an executor or administrator to sell mortgage, or otherwise encumber real estate acquired
by him on execution or foreclosure sale, under the same cicumstances and under the same regulations as prescribed in
this rule for the sale, mortgage, or other encumbrance of other real estate.
Regulations for granting authority to sell, mortgage or otherwise encumber estate.
(a) The executor or administrator shall file a written petition setting forth the debts due from the deceased,
the expenses of administration, the legacies, the value of the personal estate, the situation of the estate to be
sold, mortgaged, or otherwise encumbered, and such other facts as show that the sale, mortgage, or other
encumbrance is necessary or beneficial.
(b) The court shall thereupon fix a time and place for hearing such petition, and cause notice stating the
nature of the petition, the reasons for the same, and the time and place of hearing, to be given personally or
by mail to the persons interested, and may cause such further notice to be given, by publication or otherwise,
as it shall deem proper;
(c) If the court requires it, the executor or administrator shall give an additional bond, in such sum as the
court directs, conditioned that such executor or administrator will account for the proceeds of the sale,
mortgage, or other encumbrance;
(d) If the requirements in the preceding subdivisions of this section have been complied with, the court, by
order stating such compliance, may authorize the executor or administrator to sell, mortgage, or otherwise
encumber, in proper cases, such part of the estate as is deemed necessary, and in case of sale the court
may authorize it to be public or private, as would be most beneficial to all parties concerned. The executor or
administrator shall be furnished with a certified copy of such order;
(e) If the estate is to be sold at auction, the mode of giving notice of the time and place of the sale shall be
governed by the provisions concerning notice of execution sale;
(f) There shall be recorded in the registry of deeds of the province in which the real estate thus sold,
mortgage, or otherwise encumbered is situated, a certified copy of the order of the court, together with the
deed of the executor or administrator for such real estate, which shall be as valid as if the deed had been
executed by the deceased in his lifetime.
What if the deceased during his lifetime entered into a contract, binding in law, with respect to a deed of real
property or an interest therein, what will the court do?
On application for that purpose, the court may authorize the executor or administrator to convey such property according
to such contract, or with such modifications as are agreed upon by the parties and approved by the court. If the contract is
to convey real property to the executor or administrator, the clerk of court shall execute the deed. The deed executed by
such executor, administrator, or clerk of court shall be as affectual to convey the property as if executed by the deceased
in his lifetime. However, no such conveyance shall be authorized until notice of the application for that purpose has been
given personally or by mail to all persons interested, and such further notice has been given, by publication or otherwise,
as the court deems proper; nor if the assets in the hands of the executor or administrator will thereby be reduced so as to
prevent a creditor from receiving his full debt or diminish his dividend.
What if the deceased H, had held real property in trust for another person, what will the court do with the same?
The court may after notice given as the same in the above scenario, authorize the executor or administrator to deed such
property to the person, or his executor or administrator, for whose use and benefit it was so held. Also, the court may order
the execution of such trust, whether created by deed or by law.

RULE 90- DISTRIBUTION AND PARTITION OF THE ESTATE


After all these claims have been settled, all debts have been paid, you go now to distribution. This is the last stage.
But in the distribution of the estate, what Rule should be followed?
First, before distribution, there shall be payment of debts.

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What are these debts?


There are only 5 specific kinds of debts.
1. Debts of the decedent;
2. Funeral expenses;
3. Expenses for administration;
4. Allowance for the widow; and
5. Taxes.

Suppose the asset was P10M gross value and the obligation was only P1M. You have P900T left but the will says
to distribute only P500T; P100T; P100T and P50T to the last two, where will that excess go?
It should be distributed in accordance with intestate succession but also pro rata. Remember we are talking here of the
remainder, hence, no more debts to be paid. We have also studied the Rules on contingent claims, under Sec. 4, Rule 74
(Liability of Distributees and Estate), and the two-year lien.

When will the ORDER FOR DISTRIBUTION of residue made?


When all of the following have been paid and done:
1.
the debts, funeral charges, and expenses of administration,
2.
the allowance to the widow,
3.
and inheritance tax, if any, chargeable to the estate in accordance with law,
The court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing
upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions,
or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor
or administrator, or any other person having the same in his possession.

RULE 91 ESCHEAT
Is another form of Judicial Settlement, Escheat tells us that if a person dies without a will, without an heir, and no debts,
then the Office of the Solicitor General will file, under the directive of the President of the Philippines, will file an Escheat
Proceeding. But if it happens that during the pendency of the proceeding, a will pops up, then the proceeding is
discontinued. If an heir pops up, then the proceeding may be suspended and establish your rightotherwise, after the
hearing, the property will go to the government. This escheat proceeding is founded on the theory that all lands belong to
the Statethe Regalian Doctrine that you studied under LTD (Land Titles & Deeds) all lands belong to the State and
he who claims otherwise has the burden of proof so after the escheat proceedings, the property belonging to the estate
will go to the city or municipality where it is found.

What if there is a controversy as to who are lawful owners of the shares/residues, what will be done?
The controversy shall be heard and decided as in ordinary cases. Also, questions as to advancement made or alleged to
have been made by the deceased to any heir may be heard and determined by the court and the final order of the court
shall be binding on the persons raising the questions and on the heir.
Is the above procedure always absolute as to the payment first of all the expenses/debts of the deceased?
No. Distribution shall be allowed if the distributees, or any of them, give a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations within such time as the court directs.
When may executor or administrator pay for the expenses of partition?
If at the time of distribution the executor or administrator has retained sufficient effects in his hands which may lawfully be
applied for the expenses of partition of the properties distributed, such expenses of partition may be paid by such executor
or administrator when it appears equitable to the court and not inconsistent with the intention of the testator . Otherwise,
they shall be paid by the parties in proportion to their respective shares or interest in the premises, and the apportionment
shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share,
the court may issue an execution in the name of the executor or administrator against the party not paying the sum
assessed.
Where will the recording of these final orders and judgments of the court relating to the real estate or the partition
are done?
Certified copies of final orders and judgments of the court relating to the real estate or the partition thereof shall be
recorded in the registry of deeds of the province where the property is situated.

So if the proceeding is in Manila, but the property escheated is in Calamba, the property escheated located in Calamba
will go to the City of Calamba and not to the City of Manila. The same thing with personal propertywhere it may be
found and the Rule is very specific that the property will be spent for charitable purposes, for educational purposes, so on
and so forth. So that is Rule 91.
Under Rule 91, Sec.5 is another form of escheat because that was given in the BAR 5 years ago (sa dami daming
pwedeng ibigay sa Special Proceedings, yun lang ang binigay). This speaks of REVERSION. In other words, the
property was acquired by an individual in violation of the Constitution. Under the Constitution, any person, even foreigners
who were former Filipinos, can now acquire property in the Philippines and that was given more strength because of the
Dual Citizenship Law.
Q: Which court has jurisdiction over Petitions for Settlement of Estate?
A: Under RA 7691, inferior courts now have jurisdiction over settlement of estate, whether testate or intestate. So it is not
under the provision which speaks of actions involving title to or any interest in property but it is a direct provision of the law
that settlement of estate, whether testate or intestate, may be taken cognizance of by inferior courts, depending on the
gross value (hindi assessed). Remember, there is another provision under BP 129, the basis of which is the assessed
valuedito, gross value of the estate and the location is determinative somehow of jurisdiction because if it is outside
Metro Manila, less that P300T and within Metro Manila, P400Tso suppletory character lang yun.
The old books speak of Courts of First Instance (RTC), exclusivelyhindi na yun.

Under the rules on preference of credit, taxes are given priority. Is there an exception? What did your Labor Law
teacher teach you about that?
Under PNB vs. NLRC case (March 1990): In case of liquidation of the assets of the corporation, even taxes give way to
unpaid salaries and wages. But in all other instances, its always the taxes that will prevail.
The estate is worth one million (P1M). After payment of debts, all that had been paid amounted to P500T. How
much is left for distribution?
Only P500T.
If there are 5 compulsory heirs, devisees and legatees, A, B, C, D, E, and under the will, A should receive P500T;
B- P100T; C- P100T; D and E- P50T each and what remains is only P500T, how will you distribute the estate?
Distribute the estate by ratio and proportion.
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RULE 92 TO 97: GUARDIANS AND GUARDIANSHIP


Madali lang itong guardianship. You know why? Because the Rules are practically the same. The fundamental difference
is that in guardianship, the subject is still alive. In settlement of estate, the subject matter is already dead.
Three Kinds of Guardians:
1.
Judicial guardian that appointed by the court in a judicial proceeding for legal guardianship
2.
Legal guardian guardian by operation of law; not just appointed by any court. (ex.: parents of minor children)
3.
Guardian ad litem- that which is appointed by the court not necessarily in a guardianship proceeding, because
this guardian ad litem is only on a temporary basis with a specific duty to perform.
Q: Which court has jurisdiction over a petition for guardianship?
A: Exclusively and originally cognizable by the Family Court (RTC specifically designated as a Family Court because of
RA 8369 ). There is no inferior court here.
However, in settlement of estate, jurisdiction may be lodged in inferior courts depending on the gross value of the estate.
The venue is the residence of the ward. If the ward has no residence and the guardianship application is over the
property of the ward, the venue is where the property is situated/ located.
Take note that the venue here is the residence of the ward as distinguished from the venue in adoption, which is the
residence of the adopter. Bakit? Because in adoption, the result is that the adoptee will become the child of the adopter
for all legal intents and purposes. But here, it is the guardian that goes to the ward as the relation here is only of a
temporary character.
You file a guardianship proceeding only on 2 grounds:
1.
Minority; and
2.
Incompetency.
The term incompetent here is different from that in settlement of estate. Here,
incompetent refers to:
Sec. 2. Meaning of the word incompetent. Incompetent includes:
1.
Those suffering from the penalty of civil interdiction (a penalty attached to conviction);
2.
Hospitalized lepers;
3.
Prodigals (one who is a spendthrift; wastes money or property on things without reserving any for himself and
before you know it, he is not only a prodigal son but also a grasa man.);
4.
Deaf and Dumb unable to read and write;
5.
Those of unsound mind although they have lucid intervals;
6.
Persons not of unsound mind but by reason of age, disease, weak mind, and other similar causes, cannot, without
outside aid, take care of themselves or manage their property.

time and more importantly, they found from the record that Caniza was one of the heirs of the ward. Hence, there is still a
party-in-interest even if there is no settlement of the estate. Ang importante ay pag guardian ka tapos heir ka din, there is
no need for the settlement of the estate.
NOTE: Remember that you find that also in Sec. 16 of Rule 3: Substitution of Parties (without a need of appointing an
administrator or executor of the estate in the substitution of parties.). That is the doctrine laid down in this case.
Q: Who can initiate a petition for guardianship?
A: Anybody who has interest in the person of or property of the ward. If you cannot establish any interest in the person of
or in the property of the ward, you cannot file a petition for guardianship.
Buyena vs. Ledesma: In this case, they were able to establish interest. They were both single and they were living
together.
You have to establish interest. The Rule says, friends, relatives, or any person who has interest.
Q: What is the procedure?
A: File a petition with a court of competent jurisdiction in the proper venue. And the court will issue an order setting the
case for hearing. If there are oppositors, then they can file their opposition. Remember, this is a special proceeding and
jurisdiction is always acquired through publication. After trial, there will be decision either allowing or disallowing
guardianship. In other word, appointing a guardian or not appointing a guardian.
The guardian now enters into the guardianship after he has filed the necessary bond. The duties and responsibilities of a
guardian are similar to that of an executor or administrator .
Q: Can he sell the properties of his ward?
A: Yes. Even without permission from the court if the property involved is personal property. But, if it is real property, just
like, an executor or administrator, he has to get permission from the court. Only with the permission of the court will the
sale of real property be considered a valid sale. It is not only permission of the court which is required, but also notice to
all interested parties. In guardianship, the absence of notice, even with permission of the court, still renders the sale void.
Q: In what instances may guardianship be terminated?
A: Death also terminates guardianship, but the general rule is that if the ground for the appointment of the guardian
ceases, then guardianship ceases as well.. If the minor is already of age (remember, even the minor himself can ask for
guardianship). This is an exception regarding lack of a minors legal personality to sue. If the ground is based on
incompetency and it is established that the ward is already competent, or that he was insane, but now, he is no longer
insane; a petition for termination of guardianship may be filed.
Q: Should the legal guardian file guardianship proceedings over the person and property of their minor children?
A: Yes if the property of the war, which is their own children, is worth more than P50T. If they sell the property of their
ward, even if they are the legal guardians, the sale of the property is void.

A minor, under the age of 18, can be the subject of guardianship.

Q: Distinction between a guardian and a trustee


A: The distinction between a guardian and a trustee is that the latter has the legal title while the guardian has no legal title
of the property. So that the trustee can negotiate and encumber the property under trust. Although the same trustee may
either be a trustee and a beneficiary at the same time.

Case of Evangelista: The petition for guardianship was granted by the court and Caniza was appointed as the guardian
of Evangelista. As a guardian, remember the rights, the guardian can sue and be sued, can collect debts, can manage
the properties of the ward. So one of his actions here was to ask the Estradas to vacate the premises owned by the ward.
Judgment was rendered in favor of plaintiff, but on appeal, it was reversed and on appeal again from the order of reversal,
it was sustained. That is why it went up to the Supreme Court. But pending the appeal with the CA, the ward died. This
is a case for ejectment. The issue here is that considering that there is no more guardianship because death terminates
guardianship, hence, the case must be dismissed because the party appellant is not the proper party-in-interest. The SC
said No. Even if death terminates guardianship, in this particular case, it is contrary to the principle of equity of justice if
we have to start all over again. The case is already with us, so remand of the case to the lower court would be a waste of

A trust relationship can either be express if there is a trust agreement between parties or implied if it is by operation of law.
Examples of trust by operation of law is when parents die without a will and then some children are still minors, whoever is
the guardian of the minor holds the property for and in behalf of the minors in trust. So that you will note that the guardian
here, being the trustee, may not be a party to a written trust agreement but he cannot dispose the minor's property without
consent of the court for the reason that he is only in trust for the ces qui trust. Even in the absence of a written contract,
there is a trust relationship by operation of law.

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RULES 99 TO 100: ADOPTION & CUSTODY OF MINORS


Background of adoption: The rule on adoption has been amended several times and even the rules on procedure, which
you find in 99 and 100 are no longer applicable. They have been repealed expressly. As early as the mid-70s when the
Child and Youth Welfare Code (PD 603) was enacted, it already amended the rules on adoption. PD 603 was also
amended by the Family Code. But all these are no longer applicable in toto because of the new laws on adoption which
should be the subject matter of today's section. The laws applicable now is not even the Civil Code per se, but rather it
should be RA 8562, the Domestic Adoption Law of 1998 and the Inter Country Adoption Law of 1995 (RA 8043). These
are the substantive law governing adoption. Our concern is the rule on adoption.
AM 02-6-02SC, dated July 2002, is the new rule on Adoption.
Q: What is adoption?
A: It is a judicial proceeding whereby the relationship of paternity and filiation is established. AS simple as that.
According to a noted professor, when a decree of adoption is final and executory, there is the total and absolute cut of any
legal relationship between the natural parent and the child.
Under the new rules, the adopter cannot rescind the adoption but only disinherit the adopted child. An adopted child has
all the rights of a legitimate child.
Q: Who may be adopted only?
A: General Rule: one who is legally available for adoption.
Q: Who are legally available for adoption?
A: Those who are voluntarily committed and/or involuntarily committed.
The parents or guardians of these persons have voluntarily surrendered their parental or guardianship authority to the
DSWD.
Q: Who are those involuntarily committed?
A: Judicially or administratively deprived. Minors, whose parents or guardians are administratively or judicially deprived of
their authority over these persons. They are involuntarily committed. And within that concept, you have the abandoned,
the dependents, and neglected children.
Q: What is a child-placement agency as distinguished from a child-caring agency?
A: The distinction is in the services that they cater. Pag placement, it is to provide comprehensive child welfare services
including, but not limited to, receiving applications for adoption, evaluating the prospective adoptive parents, and preparing
the adoption home study while pag caring, it is like Hospicio de San Jose, which provides 24 hour residential care services
for abandoned, orphaned, neglected or voluntarily committed therein.
Q: Which court has jurisdiction over a petition for adoption?
A: It is the Family Court. RTC is not even a totally and perfectly correct answer because it may be another RTC.
Q: What is the venue?
A: The place where the adoptive parents reside.
NOTE: Here, the meaning of residence is the actual habituation of the petitioner.
We are only going to study 2 fundamental questions on adoption. Who may be adopted and who may adopt. Once you
perfect that we can go to another lesson.
Q: Who may adopt? Or who is a qualified prospective adopter?
A:
1.
Any Filipino Citizen

2.
3.

Any alien
Guardian, with respect to the ward. And remember, there is no qualification as to the citizenship of the guardian.
The only qualification is that the guardianship must have ended AND his accountability as a guardian has been
completed. Yun lang ang qualification.

Q: Now let's go to the Filipino, what are the qualifications?


A:
1. of legal age;
2. he must possess full civil capacity and legal rights;
3. of good moral character;
4. has not been convicted of any crime involving moral turpitude;
5. emotionally and psychologically capable of caring or children;
6. financially capable or economically capable;
7. at least 16 years older than the adoptee.
NOTE: When one is of legal age, a minor cannot adopt. Because he must be capable of unquestionable demonstration.
Under the Rules on Evidence, the court can either take judicial notice of that because he is capable of unquestionable
demonstration.
Q: What does possession of full civil capacity and legal rights mean?
A: Give me a person who is not possessed of full civil capacity and legal right. A convicted person which has received an
additional penalty of civil interdiction.
Q: How about a deaf-mute? Is a deaf-mute in possession of full civil capacity?
A: Under the rules, a deaf-mute who is not able to read and write is not in possession of full civil capacity, thus it is
incapable of contracting obligations.
Q: A person caught urinating, and charged of urinating in public. Is this not moral turpitude?
A: Urinating or defecating in public is an offense and not a crime. The requirement speaks of one who has not been
convicted of a crime, which is punishable by the Revised Penal Code.
Q: But if you are charged of Rape, can you not adopt?
A: No. Because it speaks of conviction. You must first be convicted.
But if you are convicted of homicide, recent jurisprudence say, you can still adopt because it is not a crime of moral
turpitude. So tatlo, there must be a crime, there must be conviction, and it must be of moral turpitude.
Q: How do you establish your emotional and psychological capacity?
A: Clearances to show that you have not been convicted from a crime of moral turpitude. Clearances from RTC, police,
PNP, barangay, MTC, etc. And these clearances will ought to show that you are of good moral character, that you are
emotionally and psychologically capacitated, subject of course to presentation of evidence and cross-examination. Wala
namang summons sa adoption.
Q: How do you establish your financial capacity?
A: Certificate of employment, income tax returns.
Q: When we speak of age gap, the miracle number is 16, why? What is sought to be avoided by this age gap?
A: To avoid temptation. You look at the history of the Civil Code of the Philippines which was adopted from the Civil Code
of Spain. And being of European origin, there is that also a 16 year old gap. Malalaking bulas ang mga european and they
seek adoption as a means of having mistresses.

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Q: Who may be adopted?


A: General Rule: one who is legally available for adoption.
Q: Who are legally available for adoption?
A: There are 7. So that minority is not an absolute requirement to be adopted. Relationship is not even a disqualification
on the part of the adoptee. because they can be adopted.
What I would like to emphasize is the doctrine laid down in Cang v CA, which is that consent must be given either by the
prospective adoptee, if he is at least 10 years old, or parents, or guardians, or the DSWD. Without that consent, as laid
down in this doctrine, adoption is null and void.
So you can adopt even your own child. You can even adopt your own grandchildren just like what Juan Ponce Enrile did to
his grandchildren.
Q: Another person who may adopt is a foreigner, and he may adopt under the domestic adoption law or the inter-country
adoption law. What are the requirements?
A: So all the requirements applied to a Filipino prospective adopter are also required of an alien. Therefore, he must be of
legal age, in possession of full civil capacity and legal rights, of good moral character, not convicted of a crime involving
moral turpitude, etc.
Over and above this, an alien is also required:
1.
he must have continuously resided in the Philippines 3 years prior to the filing of the adoption;
2.
he must have a certification from his consular official that he is in possession of full civil capacity;
3.
his country of origin must have diplomatic relations with our country;
4.
his country of origin must allow the adoptee to become a citizen of his country;
5.
that his country of origin allows the adoptee to enter the country of origin of the adopter;

Q: For what purpose is this?


A: One is the home study report and the other is the case study report. The home study report is about assigning to the
social worker of the respective adoptee and the case study report is about the prospective adopter.
The general objective of adoption, why it is allowed under the rules, is that which leads to the benefit of the adoptee.
Under the rules, it is mandatory that the petitioner must appear and testify. Similar to an annulment of marriage case,
there can be no stipulation of facts here or confessions of judgment. There must be actual presentation of evidence here.
And basic requirement here is the consent given by the adoptee, the parents or the guardians of the adoptee.
Q: After the hearing, may the court render judgment now?
A: The judgment referred to here is not similar to the judgment that we have ordinarily because the judgment here is
always subject to the issuance of another decree of adoption. Ang finality dito is not the finality of the judgment but rather
the finality of the decree of adoption.
Q: When is the decree of adoption issued?
A: After complying with the 6 month trial custody. Again, this is another undertaking of the DSWD. Tignan niyo, the home
or case study report is before the decision is rendered, but before a decree of adoption is rendered kailangan pa ng isa
pang report which is the trial custody report.
Q: For how long?
A: General Rule: 6 months.
Exception: when it is in the best interest of the child; the petition during the hearing is that the prospective adoptee is
already living with the adopter.

Q: Where should he file this petition for adoption? (Section 28)


A:
1.
It may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having
jurisdiction over the place where the child resides or may be found;
2.
It may be filed directly with the Inter-Country Adoption Board.

Q: After the decree of adoption has become final and executory, what is the next?
A: There should be a new birth certificate issued. Remember that one of the rights of a party in litigation is the right to a
speedy and public trial. But this adoption proceeding is exceptional because even the documents there are public records
but are not open to the public, not anybody can get it including the new birth certificate issued to the adopter.

When an alien files a petition before the Inter-Country Adoption Board, the alien will come here in the Philippines and will
bring the adoptee and the social worker back to his country of origin for the trial custody of 6 months will happen there.

NOTE: But take note that under the rule on rescission of adoption, the issued certificate of the civil registrar's office is
cancelled in favor of the old birth certificate, which means that the old birth certificate is not deleted, but remains in the
record. And this is the reason of the confidential nature of the proceedings.

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

RULE 102: HABEAS CORPUS


Q: What is the constitutional provision about habeas corpus?
A: The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or when public safety
requires it. It is not the writ which is suspended but the privilege.
Q: What is a writ of habeas corpus?
A: It is an order or judicial process directed to the person to show cause for the reason of detention.
Q: By that definition, it is directed in two conditions, which are:
A:
1.
illegal detention or confinement;
2.
illegal withholding of custody from a person entitled thereto.
It is directed to someone who commits an act of either illegal detention or confinement or illegal withholding of custody
from a person entitled thereto.
Q: What is an example of the first instance?
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A: Violation of the constitution, whereby a person is deprived or restrained of his liberty or not afforded a right to due
process, or an order from an authority which has no jurisdiction.
Q: What is an example of the second instance?
A: Malimit itong mangyari within the family, where the mother or father fights over for the custody of the child.
Q: If a woman leaves the parental home in order to stay with her paramour, can the parents file a petition for a writ of
habeas corpus?
A: It depends. If the child is a minor, a writ of habeas corpus is available. But when a child comes of age, the writ of
habeas corpus is not available.
Q: Suppose a judge renders a judgment penalizing a person with imprisonment of 6 years 1 month and 1 day, and then
the convict has already stayed for more than that period of time, is the writ available?
A: Yes, the writ is available because that is the immediate remedy. Although you can also file certiorari but it is no longer
immediate here. Because what do you intend to annul there? wala.
Q: What is a preliminary citation as compared to the writ of habeas corpus or the peremptory writ?
A: Preliminary citation is a citation to the government officer having the person in his custody to show cause why the writ
of habeas corpus should not issue (detention not patently illegal).
Preemptory writ is issued when the cause of the detention appears to be patently illegal and the non-compliance
wherewith is punishable.
In preliminary citation, it is not mandatory where the court may dispense with the issuance of the preliminary citation and
go directly to the issuance of the writ of habeas corpus.
A person in custody of another, restraining the liberty of another, must give a return upon receipt of the writ of habeas
corpus. That return can either be prima facie evidence of the detention or a plea of the facts stated therein, in the return.
Q: Ano ang ibig sabihin nito? (Section 13)
A: The content of the return as to whether it is a plea only or prima facie evidence of detention, they distinguish as to who
has burden of proof. If the return contains prima facie evidence of the detention, then petitioner has the burden of proof to
show that the detention is illegal. But if it is only a plea of the facts stated in the return, then the one who has the custody
of the person has the burden of proof.
So a writ of habeas corpus is directed to a jail warden. When the jail warden prepares the return, which is brought to the
court, he says that this person is under a commitment order, merong desisyon ang korte that this one should be
imprisoned because he was denied bail although is appeal is still pending. That is prima facie evidence of the cause of his
detention, and when that is submitted to the court, the applicant has the burden to establish that that commitment order is
illegal.
But if the return, it says well i am taking custody of this child because i am the father, that is not a commitment order or
judicial order, that is coming from a private person. Therefore, that is not prima facie evidence but only a plea of the facts
stated therein. Hence, the father will show that he has the right to take custody of the child and not anymore the petitioner.

RULE 103 (CHANGE OF NAME) and 108 (CORRECTION OF ENTRIES)


These are still applicable. They have only been amended but are not yet repealed by RA 9048. Therefore, an affected
person can avail of Rule 103 or Rule 108 without RA 9048 being violated.
RA 9048 is known as administrative procedure of changing one's name or nick name or administrative procedure of
correcting an entry in a document. Therefore, being administrative, it is extrajudicial. In case of Rules 103 and 108, they
are judicial processes.

A: RTC, specifically the Family Courts.


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

Q: Which courts have jurisdiction over Rules 103 and 108?


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RULES ON EVIDENCE
TESTIMONIAL EVIDENCE
The weakest of all kinds of evidences precisely because it emanates from man who can always try to controvert matters.
What are the qualifications?
You better memorize the qualifications. It's very simple because almost all problems of the qualification of a witness can
be answered through these basic characteristics of a witness.
A witness is one who can perceive and perceiving and can make known his perception. So anybody.
Can a deaf-mute testify? Can a blind testify?
If he can perceive and perceiving and can make known his perception, he can testify. Even if you don't get a perfect score,
you will not get a zero for that because that is a correct answer.
Can a child of tender age testify?
If he can perceive and perceiving can make known his perception, he can testify.
In one and recent case wherein a child was asked to testify, the SC allowed the child to testify because they find out that
what is the criteria for ability to perceive is not just perceiving but making known your perception to others. This is the case
of People v. Bulimlit (not sure), they spoke of the ability to perceive, then ability of communication. And they added the
other one, the ability to know the difference between what is right from wrong. In other words, some cases use it as the
ability to understand the nature of an oath.
In another case, the SC said that the child was not qualified to testify because he cannot perceive and cannot make
known his perception. The child was 2 1/2 years old.
Can a retardate testify?
She was the only witness in a rape case where she was a victim, the defendant's counsel was able to destroy the
testimony to the point of even getting an answer that she likes the act of rape. But the SC convicted the accused
nonetheless on the sole testimony of the retardate. Rationale: the retardate is qualified because she can perceive and
perceiving can make known his perception.
Disqualification?
Basic exception to the general rule (one can perceive and perceiving can make known his perception) is if the law
disqualifies him. So if there is a law disqualifying a person, even if he can perceive and perceiving can make known his
perception, he is disqualified. You get that from other laws, substantive laws. We have studied in Rule 119 regarding a
state witness. One of the qualifications of a state witness is that he must not have been convicted of a crime involving
moral turpitude. If you are convicted of a crime of moral turpitude, you cannot testify as a state witness because the law
disqualifies you to testify.
If you have been convicted of perjury, defamation or misrepresentation, or forgery, you cannot be a witness to a will under
your wills and successions law. And remember, before you authenticate a will, you must present the three instrumental
witnesses. If one witness is convicted of perjury etc. then he cannot testify as a witness.
Other disqualifications:
1.
Mental incapacity or Immaturity.
When you speak of maturity, it does not go with age. You may be of age but still immature. You may not be of age but
already mature. One who cannot decipher what is good and right. One who does not appreciate the sanctity of an oath.
These are signs of immaturity. In other words, you are irresponsible. Who is irresponsible? One who cannot live up to
situations. Who is responsible? If he has the ability to respond. So you are irresponsible if the incident calls for a correct
response and you did not.

But if you are pronounced to be insane or psychotic, you are disqualified.


Children, under the Rule on Section 21, because of their maturity but remember that the children may even be more
mature than the adults. So this is a case-to-case basis. And because of the Child Witness Rule it has demasculated or
efeminated, wherein children cannot testify. Because under the Child Witness Rule, there are a lot of exceptions where a
child can testify. There are a lot of what you call testimonial aids. If a child is testifying in a crime of rape, you can give her
a doll, then she would testify. What are your parts in the body which are similar to the parts of this doll. Or she can ask to
be held by the hand of her grandmother, mother, brother, sister, etc. In fact, two years ago in the bar exams, there was a
question about fiddling testimony, this is under the Child Witness Rule.

2.
Marital disqualification rule.
You often confuse that with marital privilege rule. A very important guide here is that the marital privilege rule, the
statements in the testimony which are not allowed are those of communications which are confidential. But this is not so in
marital disqualification rule. And in the marital disqualification rule, the time frame is within or during marriage. But this is
not in the marital privilege rule. These are the things. but what are the waivers here? The waiver is upon consent. Another
waiver is one against another. Example is for annulment of marriage, the witness in chief is the party involved.
3.
The Dead Man's Statute
So if A files a case against the estate of B, or the property belonging to B being insane, then A cannot testify on matters
ante litem motam (before the controversy). The rationale behind is that when law closes the lips of someone, the adverse
party's lips must likewise be closed. But you might be given certain problems, remember that the action here is limited to
actions against the estate in case of a deceased and the property of the insane in case the defendant is insane. So if it is
the estate, it must be an action against Rule 87 (action by or against the executor or administrator), which are recovery of
real or personal property, recovery of decedent's interest or lien thereon or recovery for damages arising from an offense
or action. So it will not be a contractual money claim, because it is a claim against the estate. This one is against the
executor or administrator.
Exceptions: If there is a waiver, if one consents to the other. But an implied waiver here is if the defendant
executor or administrator interposes a counterclaim. The dead man's statute does not apply because who will establish
the counterclaim. How will you oppose the counterclaim. And remember that the subject matter are those before the
controversy, ante litem motam.
4.
Privilege Rule
Basic characteristic here in these instances is the confidential nature of the communication between one party and the
other. So you start with husband and wife. It is not stated there but this husband and wife relationship can only be invoked
by those who are legally married. Although it is not stated in the Rules. Because if you give that privilege to those who are
not legally married, you are giving a premium to illegality. Therefore, if you are only a common law wife, this rule will not
apply to you.
5.
Lawyer and Client relationship
It is not the client who is privileged here but rather the lawyer who cannot be compelled to testify on matters which he
receives from the client or regarding matters he gave as advices to the client. How about the client testifying? Of course,
the client can testify, but not the lawyer. But, together with the lawyer and the alter ego of the lawyer which is the secretary
or his stenographer. So that would even be sui generis, that would even include his clerk in the office. Because, practically,
the secretary or his stenographer knows everything. But this has something to do in the course of the practice of the
profession. For example: a client goes to you and communicate matters regarding her amorous affairs and starts
insinuating something, this has nothing to do with the case. And of course if there is consent, this is another waiver.
6.
Doctor and Patient relationship
Look, there is a peculiarity there. The disqualification is only in civil cases and not in criminal cases. Because in many
instances, the doctor is even required to testify in criminal cases. The term doctor expands also to his alter ego, or similar,
sui generis also. But how about the quack doctor? No. It is not within the privilege because that would again be giving
premium to an illegal practice of medicine. And also the matters privileged are those within the communication within the
confidential nature of the communication in relation to the medical practice of the person.

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against the other.


7.
Priest and Penitent relationship
At least in the catholic church, this has never been violated. A lot of priests have fallen and got out of their priestly ministry
but had never broken this confession.
8.
Public Officer
But here what you have to look into is the public interest. If in disclosing matters, it would be detrimental or prejudicial to
public interest, then you cannot force. Example is military secrets. But not the testimony of oakland mutineers.
Parental and Filial Privilege
Parental is with regard to the Parent who cannot be compelled to testify against their children. Filial is with regard to the
child who cannot be compelled to testify against their parents. This is not a disqualification per se. That's why it is
privilege. It is more of legal incompetency. Parental privilege and Filial privilege. Compulsion. But if parents would like to
testify against children, then go ahead. And if the children would like to testify against their parents, there is no prohibition.
You cannot force them if they do not want to. This is where the prohibition lies. There are many jurisprudence where the
accused is the father in the crime of rape. The daughter can definitely testify against the father. Even the mother can
testify against the father. This is not a marital disqualification.
ADMISSIONS AND CONFESSIONS
When we speak of admission, this is a statement of a fact. There is no admission of liability here, necessarily. But when
you speak of a confession, it is always an acknowledgment of guilt. It is an admission of liability.
So an admission, as a general rule, is admissible as against the admitter but not against other people. While in
confession, it must definitely be against the confessant and never against other people.
What is the exception to that?
Inter-locking confession.
What is the doctrine of inter-locking confession?
If 6 are accused and 4 of them executed an affidavit detailing how the crime was committed and pointing to the other 2,
that extrajudicial confession is admissible as against the other 2 who did not confess, pursuant to the doctrine of
interlocking confession.
NOTE: When you speak of confession, personal yan. It refers only to the confessant. But when you speak of admission,
ordinarily it is admissible as against the admitter. That is not absolute as it can be admissible as against other persons. So
Section 26 says act, declaration or omission of a person is admissible as to him. So even in the negative it is admissible
as to him.
The act referred to there refers to a physical act. Declaration refers to a statement. Omission is the failure to do something
which the law calls you to do or provides that you do it but you did not do it. So that is always admissible as to the
declarant, actor, or omitter.
Don't confuse this with the res inter alios acta rule. That is provided for in Section 28. These following sections must be
read together. Section 26, 28 and 34 (other side of the res inter alios acta rule).
Section 26, the act, declaration, or omission of a party is admissible as to the actor, declarant or omitter. Self-explanatory.
If you do it, then you are liable. But remember that the admissibility of the declaration must be against their interest.
Because under the Rules of Evidence, a declaration which is self-serving is inadmissible. So if i declare that I did not steal
the car, it is a self-serving declaration. It is in fact a denial. And a denial, although stronger than affirmative statement
cannot always be taken in your favor. So the act, declaration, or omission must all be positive. The declaration must be
against one's own interest. So when you declare, for example, that I was with Mr. A when he robbed the bank that is a
declaration against interest. That can be taken against you. But when you speak of the res inter alios acta rule, it's
different. The rights of a party cannot be prejudiced by the act, declaration or omission of another. So if Pedro acts,
declares or omits, that act, declaration, or omission cannot be taken against Juan. Yung kay Pedro kay Pedro. Yung kay
Juan kay Juan. So don't confuse Section 26 with Section 28. The act, declaration or omission of a party cannot be taken

What is the general rule?


If you do something, you are responsible for it. If you do something, another is not responsible for it. Ganun lang yan.
Although, what you have to look into are the exceptions in the res inter alios acta rule. So when you speak of an
exception, the keyword there is privity. Pag may privity of relationships, then that is an exception. So when A does
something, that act, declaration, or omission is not admissible as against B.
Exceptions:
1.
If there is privity in their relationship. What is that relationship? It can be a relation of partnership, agency, coownership, co-debtorship. So yan ang exception. B can be liable for the act of A, if B and A are partners, agents of
each other, co-owners, or co-debtors. But in establishing the exception, you have to establish the existence of the
agency, partnership, co-ownership by evidence other than the act, declaration or omission of a party. So that is
where the difficulty lies because you have to get other evidence other than the act, declaration or omission. So for
example, A says, I entered into a contract with X together with B who is my partner, the contract or the act of
contracting cannot establish partnership. You have to establish partnership by other evidence other than the act of
contracting. And that holds true with agency, co-ownership, and co-debtorship.
2.
Conspiracy. In criminal law, the act of one is the act of all. you have to establish conspiracy by evidence other than
the act, declaration or omission of the party.
3.
Admission by privies. So these relationships that we have exemplified are actually legal relationships. But when
you speak of privies, they are other forms of relationship. For example, the relationship between the successor-ininterest and predecessor-in-interest, father and son relationship, by succession. That is also privity in relationship.
4.
Admission by silence. If A, B, C, D, and E, were the accused of robbery and they were put in jail. They were
confronted by the private complainant. Private complainant pointed them as the accused and A, B, and C admitted
their guilt reasoning poverty, D and E kept silent. That is an admission by silence. Because they could have
reacted. Silence means consent. Exceptions to admissions by silence, if you are supposed to react and you did not
react, your silence is admissible against you. If you are under advisement by your counsel or if you invoke your
right to remain silent. If your answer would be self-incriminatory.
The other side of res inter alios acta rule is found in Section 34. This is the flip side of res inter alios acta rule doctrine. And
you will note that Section 34 says, that declaration cannot be admissible as to others except that if Pedro does something
or does not do anything on this particular occasion, it does not follow that he did or did not do the same thing in another
occasion. So, you emphasize again there the exceptions. It is an evidence, nonetheless, of intent, knowledge, scheme,
plot, habit, custom. Yun ang ginagamit ng mga police investigators.
EXAMPLE: There is a complainant who goes to the police precinct and said ninakaw ang kanyang cellphone. Saang
parte ka ninakawan? Dun ho sa kanto ng extramadura at espanya. Kukuha ng file yung pulis and points out to the person.
Parang Ocean Eleven.
HEARSAY RULE
General Rule: You can only testify on what you know. Kaya nga, in connection with the general guideline i gave you
regarding qualification, one who can perceive and perceiving can make known his perception, that is the general rule.
Someone must personally perceive and not on what others perceive.
What is the rationale behind the prohibition?
There is no opportunity on the part of the party to cross-examine the witness. So, this is the general rule. You only testify
on what you personally know.
What are the exceptions? Memorize.
Hindi na lang 11 ito. Kundi 12 na. And what is the 12th exception? Child Witness Rule.
1.
Dying Declaration;
2.
Declaration against interest;
3.
Act or declaration about pedigree;
4.
Family reputation or tradition regarding pedigree;
5.
Common reputation;
6.
Res Gestae;
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7.
8.
9.
10.
11.
12.

Entries in the ordinary course of business;


Entries in official records;
Commercial lists;
Learned treatises;
Testimony or deposition at a former proceeding; and
Child Witness Rule

Dying Declaration
Bugbog na bugbog na yang dying declarations, in relation to the res gestae.. Just look at the qualifications.
In res gestae, the declarant does not have to die. But in dying declaration, kaya nga dying, namatay. Kung buhay pa
yan, hindi dying declaration yan. Remember that these exceptions to the hearsay rule, there is a basic requirement of
unavailability of the witness. Because if the witness is available, let him testify orally. The declarant must be conscious
upon pending death.
Requirements of dying declarations:
a.
That death is imminent and the declarant is conscious of that fact;
b.
That the declaration refers to the cause and the surrounding circumstances of such death;
c.
That the declaration relates to the facts which the victim is competent to testify;
d.
That the declaration is offered in a case wherein the declarant's death is subject of the inquiry (the victim
necessarily must have died);
e.
That the statement is complete in itself.

OPINION RULE
Going back to the general formulation, one who can perceive and perceiving can make known his perception. So what are
you suppose to testify on? What you perceive and not what you think about what you perceive because that is already a
matter of opinion. Opinions are not allowed in testimonies.
Exceptions:
1.
Expert Witness
2.
Ordinary Witness
a.
identity of a person about whom he has adequate knowledge
b.
handwriting with which he has sufficient familiarity
c.
mental sanity of a person with whom he is sufficiently acquainted
An expert witness must testify on his experties. Example is in a case of annulment of marriage, mandatorily, the law says
that an expert witness must testify when the ground is Psychological incapacity.
An ordinary witness may testify on his opinion but limited only to 3 instances.
Doctrine of independently relevant statement
You are not trying to establish the content whether it is true or not but you are only trying to establish the fact that
someone (C) told you that X went with A. As to the existence of the fact and not as to the truth or veracity of the issue.

RULE 131: BURDEN OF PROOF AND PRESUMPTIONS


Declaration against interest. We discussed that partly.
Pedigree
Pedigree is a kind of relationship. If one testifies about the relationship of another because it is known by him, then that is
not hearsay. If I testify, I know Mr. X to be the illegitimate child of Mr. Y. That is not hearsay. But when I say that it is well
known in the community that Mr. X is not legally married to Y. It can be about pedigree of marriage. Common reputation
about pedigree.
Res Gestae
Two kinds. It can either be statements during an occurrence or spontaneous articulation in the course of an event. If you
are on top of a building, and you are looking over on the road and you see both men coming at each other armed with a
bolo. These are all part of the res gestae yung reactions. Multiple admissibility, a witness or a testimony can be admitted
because of a res gestae or a dying declaration.
Treatises
It refers to publications and the witness who testifies is not the author. Because if the author testifies on his own
writing, then it is not hearsay. It is someone else who testified on a treaty or a publication by a well-known author or
write in specialized fields, this is considered hearsay but admissible. But another qualification, the one who testifies on that
must be knowledgeable on the subject matter. Suppose there is a book by Gerardo Sicat. He is well-known Economist,
then the one who is testifying about his book is Bernardo Villegas, another well-known economist. Definitely, even if that is
hearsay as far as the witness is concerned but this is considered as an exception because it is learned treatises. Another
example is a doctoral thesis. So you tie this up with expert witnesses.
Entries or commercial lists
Just go over the requirements of each.
Testimony at a former proceeding or deposition
We have extensively studied deposition.

Who has the burden of proof?


Burden of proof must first be distinguished from burden of evidence. While burden of proof does not shift, burden of
evidence shifts. Burden of proof means, the you need to establish a claim. Now that claim may be propounded by the
plaintiff or the defendant in the case of counterclaim in civil cases or in the case of defense on the part of the accused in
criminal cases. So burden of proof lies thereof on the claimant. He who claims something must establish his claim by
proof.
There is a peculiarity of burden of proof as distinguished from burden of evidence in criminal cases. Because in criminal
cases, the quantum of evidence being proof beyond reasonable doubt, the burden is always with the prosecution. It never
shifts from the beginning to the end. What shifts is the burden of evidence. So when the prosecution has already
established its claim that the accused killed the victim, it is incumbent upon the accused to disprove the claim. What is the
burden of evidence? Putting forward the evidence. This is the literal meaning.
That is clear in civil cases. Because the plaintiff presents evidence to establish his claim (sum of money), demand letters,
contract of loan. After he has established his burden of proof, comes now the burden of evidence. Meaning to say, who
has now the burden of presenting of evidence to disprove the proof presented by the plaintiff is now the defendant. But
when the defendant would like to establish now his defense (affirmative relief), he has the burden of proof. The defendant
has to establish his proof. This is not burden of evidence but proof.
What are the two kinds of presumptions?
They are Conclusive and Disputable Presumptions.
What is a conclusive presumption?
Conclusive presumption is such kind of presumption which can never be controverted. No amount of evidence can destroy
or overturn conclusive presumption.
What are the two kinds of conclusive presumptions?
Estoppel in pais and the title of the landlord. Kaya memorize niyo na.

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What is this estoppel in pais?


When by my act, declaration, or omission, i make someone believe that such a thing is true, I cannot deny my actuation
anymore. I am conclusively presumed. I am estopped from denying facts. A, vendor, sells his real property, consisting of
100sq. m. lot to B. B would not want to buy it, but A says, I have a special power of attorney because the title is not titled
to A. So B agreed. On that basis of that declaration, later on he cannot deny otherwise. It is estoppel in pais.
In the same kind of example, we give the second kind of conclusive presumption. If A, as the seller, says that I am going to
sell this to you which I also bought from Mr. X, therefore, I had a title to the property. Then if B, later on, says wala ka
naman palang titulo sa property. No. B is now bound by the claim of title of A. Malimit yang mangyari sa contract of lease.
A and B entered into a contract of lease over a parcel of land. Then B being the lessee, 3 years after, realized that A is
really not the owner but the government. You cannot deny now. It must be before the act, declaration, or omission or
before they entered into a contract.
As to disputable presumptions
There are 37 disputable presumptions. You go over these disputable presumptions.
The evidence willfully suppressed would be adversed if produced. The emphasis is based on the ground that there are a
lot of cases relative to this presumption. So remember that this has something to do with suppression of evidence.
And what are the requisites?
1.
That the evidence suppressed is at the disposal only of the suppressing party.
2.
That the suppression is willful.
3.
That the evidence suppressed is not merely corroborative or cumulative.
4.
And that the suppression is not in the exercise of a privilege.
Letter E. The first two are the most important requisites. These suppression of evidence are of any kind. Real,
documentary and even testimonial evidence is covered. Suppose it is a prosecution for rape, and then the prosecution
says, I would no longer put in the witness stand the police investigator. And then the other party says, it is suppression of
evidence because if the evidence will be presented, it will be adverse to the prosecution. No, the courts would say that is
not suppression of evidence because the police investigator is available to both of you. Bakit? Pwede mo namang ipresent
ang police investigator by any party. The first requisite has not been complied with because the evidence suppressed is
not only at the disposal of the suppressing party.
But suppose the evidence that I would like to present is x-ray which is a medical record. I asked for the subpoena duces
tecum. The hospital did not produce it. The court sustained and said that this is suppression of evidence.
If it is not willfully suppressed then the presumption would not apply.
Letter M. That official duty has been regularly performed. Maraming kaso ito. Accused was charged of selling 980 grams
of shabu in a buy-bust operation. During his trial, the prosecution relied mainly on the testimony of a policeman who acted
as a buyer. Can the court rely on the presumption that official duty has been regularly performed in convicting the
accused? No. Why? To determine whether there was a valid entrapment or where entrapment procedures were
undertaken in effecting the buy-bust operation, it is incumbent upon the court to make sure that the details of the operation
are clearly and adequately laid out, relevant, material and competent evidence. The court cannot rely but must study these
things.
People v. Ong 432 SCRA (2004). If you want to apply this presumption, you have to outline the rules and regulations
governing performance of such obligation. If you don't outline, there is no presumption that it was regularly performed. So
it was more of a defense. If there is a sweeping statement that there is a presumption, then establish that the following are
the functions, for example a clerk of court in the issuance of a writ of execution. Outline first the functions of a clerk of
court, kumbaga ba e is it the duty of the clerk of court or is it the judge.
Letter W. You have studied this already. The presumption of death. Amendment, if there is presumption of death.
Example: where a mother files damages against an airline, where she contends that her son died in the crash. The

defense of the airline was that no body was recovered. So the mother also filed for presumption of death. The SC, there is
a provision for the presumption of death. Since the death only happened last year then she must wait for 4 years before
she can apply for the presumption of death.
I'm talking of presumption ha. But if you have the body already, then this presumption would not apply.
Letter Double A (aa). That a man and woman deporting themselves as husband and wife had entered into a lawful
contract of marriage.
Letter Double B (bb). That property acquired by a man and a woman who are capacitated to marry each other and who
live exclusively each other as husband and wife without the benefit of marriage or under a void marriage has been
obtained by their joint efforts, work or industry.
Letter Double J (jj). Succession. When two persons perish in the same calamity.
1.
Both are under the age of 15 years - older
2.
Both are over the age of 60 years - younger
3.
One is under 15 and the other is above 60 - former
4.
One is over 15 and the other is under 60, different sex - male
5.
One is over 15 and the other is under 60, same sex - older
6.
One is under 15 or over 60 and the other between those ages - latter

RULE 132 - PRESENTATION OF EVIDENCE


To have a bird's eye view, you divide it into three parts:
1.
Examination of witness - Section 1-18
2.
Authentication and proof of documents - Sections 19 - 33
3.
Offer and objection - Sections 34 - 40
Examination of a witness presented in a trial or hearing shall be done in open court and under oath or affirmation.
The opposition of open court is in chamber.
But all these examinations of witness is in the presence of a judge whether in open court or in chambers.
The entire proceedings must be recorded. The official record is what you call the transcript of stenographic notes. And
the contents of the stenographic notes is prima facie correct.
For practical purposes, when you are now trying a case, in the next hearing, be sure that you have already the copy of the
transcript of the last hearing. Why? The only time to correct errors in the transcript of the stenographic notes is before the
trial of the case. If you don't correct the transcript of the stenographic notes, the basis of the judgment would always be the
transcript of the stenographic notes. In fact, a judge who did not hear the case at all can still render judgment solely based
on the transcript of the stenogrpahic notes. Before the 1997 Rules of Court, some courts are not courts of record, like the
inferior courts. Under the present rules, all courts are already courts of record. How about quasi-judicial agencies, are they
courts of record? Yes they are at present even though the rules do not so provide but as a matter of practice.
Section 4. Order in the examination of an individual witness
We distinguished that from order in the presentation of evidence which we under Rule 30 Section 5 and Rule 119, Section
11. So in Civil Procedure, the order of trial is found in Section 5 of Rule 30. In criminal cases, Section 11 of Rule 119. That
is order of trial. In the order of trial, in criminal cases, we start with the prosecution's evidence. Then accused's evidence.
In civil cases, we start with plaintiff's evidence. Then followed by defendant's evidence. And followed by 3rd party, 4th
party defendant and the intervenor. But here it is the order of examination. Direct, Cross, Re-Direct, and then Re-Cross.
Is there a re re-direct or re re-cross examination?
Technically there is none. But in practice you ask for additional re-direct examination or additional re-cross examination.
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In direct examination, you can have an examination in chief. Your cross-examination is limited to the subject matter of the
direct. The re-direct is limited to the cross. Then the re-cross is limited to the re-direct.
What happens now to the testimony of the witness whose cross-examination was not undertaken for one reason
or the other, should it be deleted from the record or remain?
It all depends upon the reason for the failure to cross-examine. If after the direct examination, the defense counsel said
your honor I have another hearing in another court, so i would not undertake my cross-examination. I move for
continuance. By next week i will undertake my cross-examination. It was granted. 3 days after the witness died. So what
was taken under the stenographic notes was only the direct examination without re-cross. Here comes now the defense
counsel, Your honor i move that the direct testimony be stricken from the record for failure or without giving the chance to
cross-examine. The court should deny it. It should remain in the records because the motion for continuance was on the
part of the defendant. If it was due to the plaintiff's counsel, then the examination may be stricken off the record. Example:
after the direct examination, the defense's counsel undertook to cross-examine. If the continuance was moved by the
plaintiff's counsel.
Section 10. Leading and Misleading Questions
A leading question is not allowed. Rationale: Because you already suggest the answer. So parang ikaw na ang sumasagot
din. They say that ordinarily, questions answerable by yes or no are leading questions. But take note of exceptions.
1.
Preliminary matters - example, mr. witness are you the plaintiff in this case?
2.
On cross examination - Rationale: because katunggali yan. He will never answer questions in your favor.
3.
Of an unwilling or hostile witness and witness who is an adverse party - same reason.
But you have to distinguish an adverse witness from a hostile or unwilling witness. As to adverse witness, you don't have
to qualify him because that can be taken judicial notice of by the court. But if you present an unwilling witness or a hostile
witness, you have to lay down the predicate. You have to establish that he is unwilling or a hostile witness.
4.
Difficulty in getting direct and intelligible answers from a witness - leading question is allowed on a child.
A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that
which he has previously stated. It is not allowed. In all instances, a misleading question is not allowed. Because
you are deceitful, you prevaricate (beat around the bush) actually. You intend to tell a lie.
Example: Mr. Witness you stated that on such a date you were in that particular place. Objection your honor, there was no
testimony to that effect. That is misleading. Another example: Or he testified already. On april 5, 1995, i was watching TV.
Then during cross examination he asked, Mr. Witness you testified that on April 5, 1995 you were watching the basketball
game. Misleading question.
Section 11 - IMPEACHMENT OF ADVERSE PARTY'S WITNESS
How do you impeach?
1.
By contradictory evidence
2.
By evidence that his general reputation for truth, honesty, or integrity is bad
3.
By evidence that he has made at other times statements inconsistent with his present testimony.
What is the very common way of impeachment?
Contradictory evidence. Recall your deposition. The deposition of a witness may be used against him.
Mahirap ang 2nd. Ordinarily, you cannot establish the bad character of the witness unless it is testified to or is the subject
matter or issue, otherwise you cannot do that.
Section 15. Exclusion and Separation of Witnesses
This is an exception to the general right to a public, speedy and impartial trial. This is exception. But if you are a party to
the case, you can never be excluded.

Section 16. When witnesses may refer to memorandum


There are two doctrines in this section.
Present Recollection Revived and Past Recollection Recorded.
General Rule is that you testify only on what you personally know, perceive on your own and without kodigo.
Exception: this section.
Example: Suppose a witness, on his way home, may hinoholdap. Pagdating niya sa bahay, since he has the habit of
writing a diary, he wrote down what he witnessed from the hold-up. For one reason or the other, he was asked to testify.
Then he said, I recall that I witness an occasion of a hold-up, but i cannot recall really the exact incident. The counsel
would say, your honor we are invoking the doctrine on present recollection revived, may he refer to a memorandum. The
court may allow that under this rule.
What is not allowed is to have the diary marked in evidence as testimonial evidence. Never, that is not allowed. So he
testifies on his own, the diary is used only to refresh his memory. It is not evidence in itself but the evidence here is
testimonial and not documentary.
That is present recollection revived.
Have you come across Estrada v. Desierto. The Angara Diary. This is a present recollection revived. A new term is
coined, Adoptive Evidence.
What is Past recollection recorded?
An example of this would be let's say a medico legal case is being prosecuted. The medico legal officer has a lot of cases
already examined, thus when he is put to the witness stand, he may be allowed to consult with his examination records or
autopsy records of Mr. X. Now that can be marked in evidence. Because that is an entry of official records in hearsay rule.
That can be considered. Certification from a government agency is hearsay in itself but it is an exception to the hearsay
rule.

SECOND PART OF RULE 132 - AUTHENTICATION AND PROOF OF DOCUMENTS


Classes of documents:
Public or private
If you are asked what are public documents.
There is no definition. There is but an enumeration. So enumerate public documents.
If you are asked what are private documents.
Your correct answer is that which is not public. Tama yun by exclusion. The definition is all other writings are private.
What are public documents?
1.
The written official acts or records of the official acts of the sovereign authority, official bodies and
tribunals, and public officers, whether of the Philippines or of a foreign country;
Written official act - E.O., Records of laws passed in congress. Take note of this foreign country when we talked
mandatory judicial notice. As a general rule, our courts cannot take judicial notice of foreign laws. That must be
established by evidence.
2.
Documents acknowledged before a notary public except last wills and testaments; and
An affidavit is not contemplated here. Because it must be acknowledged. An affidavit is only subscribed and sworn to, or
jurat. What is acknowledged? A deed of conveyance or a deed of sale. When you find an acknowledgment in the
document, it does not require authentication because that is a public document.
Except last wills and testaments because under the laws on succession, there is a different way of establishing the
authenticity and due execution of a last will and testament. 3 instrumental witness.
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3.
Public records, kept in the Philippines, of private documents required by law to be entered therein.
Birth certificates when submitted to the National Census or the Civil Registrar. Marriage contract. Death Certificate.
NOTE: Do you recall when we studied correction of entries under Rule 108. 15 items. All other writings are private. So pag
private writing lang ang dapat iauthenticate.
I told you the 6 requirements for the admissibility of evidence. Yung isa ay authentication. And exception to that would be
public documents because it need not be authenticated.
How do you authenticate private documents? (Section 20)
1.
By anyone who saw the document executed.
2.
By evidence of the genuineness of the signature or handwriting of the maker.
3.
Any other private document need only be identified as that which it is claimed to be.
Ano ba ang ibig sabihin nito? Yung mga hindi material. You need not authenticate it anymore. If you want to establish, for
example, that on your way home you got a letter from the mailbox which happens to be a love letter.
Section 21. Evidence of Authenticity Not Necessary
1. It is more than 30 years old;
2. It is found in the proper custody as its nature requires; and
3. It is unblemished by any alterations or by any circumstance of suspicion.
Example: birth certificate. Sino pa ba ang magtatago ng birth certificate kung hindi ikaw din lang. It must be unblemished
by any alterations or by any circumstance of suspicion.
Section 29. How Judicial Record impeached
1.
By evidence of want of jurisdiction in the court or judicial officer;
2.
Collusion between the parties; or
3.
Fraud in the party offering the record, in respect to the proceedings.
Please connect this with Section 47 of Rule 39 on Foreign Judgments because the way to impeach it is also by lack of
jurisdiction, collusion or fraud.

All jurisprudence says, as a general rule, that when you don't make an offer the testimony is inadmissible. But latest
jurisprudence says that even if you did not make an offer at the beginning of your testimonial evidence that can be
corrected. That's the latest jurisprudence now. It can be corrected by making the offer at the middle or after. So the SC is
not strict as to the time. But the rule says that you must offer it before the testimonial evidence.
In case of documentary evidence, you make the offer in writing, as a general rule. You can only make it orally if the court
allows it, if there are only few documentary evidences.
You make the objections during the offer. In the case of the testimonial, after the offer. In the case of documentary, you
make objections upon receipt of a copy of the formal offer of evidence.
The objections referred to here is not only regarding objections to the offer of evidence. During the testimony or in the
course of the proceeding, you can also make objections.
How many kinds of objections are there?
Substantial and Formal objection
What is substantial objection?
It goes into the substance of what is being objected to.
What is formal objection?
It only goes into the form, the way it is at.
Objection to the leading question is only a formal objection
Section 40. Tender of excluded evidence
What is proffer of evidence?
It is also known as offer of proof. But the correct term is tender of excluded evidence.
When a witness has been declared as incompetent witness, the adverse counsel may ask for the proffer of evidence. If
the witness were allowed to testify, he would have established the following. So in the case of appeal, the appellate court
will see and determine the grounds why it was objected to and may reverse the trial court.

Third Part - Offer and Objection


The courts shall not consider any evidence which has not been formally offered.
So what are the requirements again for admissibility?
Relevancy, competency, identification, marking, authentication, offer.
When do you make an offer?
It depends.
1.
Real evidence - you offer it right there and then.
2.
Documentary evidence - you offer it before you rest your case or presentation of evidence.
3.
Testimonial evidence - you offer it before the witness testifies.
So you call on a party, an LRA case, cancellation of adverse claim. The witness is the petitioner himself. You lay down the
foundations before the testimony be taken. Your honor, the witness is called upon to establish the truth that he is the
petitioner of the case, that he is the owner of the TCT, that such title carries an encumbrance or annotation of adverse
claim, and that he seeks to have it cancelled before this court and that she will identify documents relative to this case.
Yan ang formal offer of testimonial evidence.
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RULE 133 WEIGHT AND SUFFICIENCY OF EVIDENCE


Quantum of evidence:
1.
Overwhelming evidence strongest, that which can never be contradicted.
2.

Proof beyond reasonable doubt - this is necessary in criminal cases, it does not absolute certainty but only moral
certainty. Moral certainty is that which an unprejudiced mind would believe that the thing or that that exist. That the
accused is guilty thereof based on the circumstances or evidence.

What is evidence on motion?


When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions
presented by the respective parties, but the court may direct that the matters be heard wholly or partly on oral testimony or
depositions.
What is a good example of this?
The one we were discussing about search warrants. Because if you file a motion to quash the search warrant in a court
which did not issue the search warrant (like the case of Washington Distillers v. CA) then it is evidence on motion. In other
words, the basis of the motion are not parts of the records, so you have to establish those parts.

3.

Preponderance of evidence - that which has heavier evidence wins. The graphical illustration is the lady justice
with a scale. Pag balanced yun, there is no preponderance. You apply the equipoise doctrine. This doctrine is if the
scale is balanced, status quo. Defendant wins. Accused acquitted.
But preponderance means that one side is weightier than the other side. How do you determine? It is not a matter of
number or nature of testimony, but it is a matter of many circumstances lumped together, credibility of the witness, the
nature of the testimonies. Jurisprudence has given us the basic doctrine, which is that the witness must not only be
credible but his testimony be credible as well.
Example, if you put on the witness stand a priest to testify, he is a very credible witness. But suppose the priest testified
and said that he was on the moon on that date. Then his testimony is incredible. Or you took someone who is an exconvict. He testified in a very credible manner. The ex-convict is not a credible witness but had a credible testimony.
4.

Substantial evidence - clear and convincing evidence. This is necessary only in administrative hearing or
procedure. Labor cases for example. It is similar to probable cause. That which an unprejudiced mind would
consider true based on the facts and circumstances on the evidence presented based on those facts and
circumstances.

5.

Probable cause - is the quantum of evidence also, that is the required in preliminary investigations and preliminary
examination.

6.

Prima Facie Evidence - that evidence which is not so controverted becomes conclusive. Can prima facie evidence
convict? Yes, solely by it, if the evidence was never controverted, it becomes conclusive.

7.

Iota of evidence - is one circumstantial evidence. Lightest form of evidence. It can never convict. Because under
the rule, there must be more than one circumstance. And the conclusion arrived at must have been established.
And that these several circumstances establish only one conclusion.

People v. Ador - 432 SCRA June 14, 2004


Ganito yun, in convicting an accused for murder, the trial court relied on the circumstances namely:
1.
He was seen fleeing from the crime;
2.
That he allegedly surrendered a hand gun;
3.
That the slug taken from the head of the victim was fired from the gun surrendered;
4.
That the victim made a dying declaration identifying him; and
5.
That the paraffin tests show that he was positive for gun powder.
Is the conviction proper?
The SC said no. For circumstantial evidence to suffice there must be more than one circumstance. The facts from which
the inferences derived are proven. They were not all proven. The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. So the second and the third requirements were not complied with.
Accordingly, the following are the guidelines in appreciating circumstantial evidence, so please go over it.
You distinguish that from People v. Mansueto 336 SCRA 715 July 31, 2006, Chief Justice Davide considered the
circumstantial evidence valid to convict the accused. So tingnan niyo diperensya dun in these two cases.

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