eNNo SITY OF THE PHILIPPINES Cu. CeCe OF LAW LIBRARY Sitman, Quezon City SPECIAL PROCEEDINGS A foresight to the bar exam and the practice of law — “QUESTION AND ANSWER NOTES* *UPDATED LAWS AND RULES* "BAR QUESTIONS* *DOCTRINES* “CASES* “LEGAL FORMS* “STATISTICS OF FREQUENTLY ASKED BAR TOPICS* DEAN GEMY LiTO L. FESTIN, LLM. Dean, Polytechnic University ofthe Philippines, College of Law: Professorial Lecturer in Special Proceedings and other Remejeb ay suber, CrinsinglaLau Bovew, minal Leg gra B Seal Penal Lau ‘San Sebastian College = eclat iuta* Polptechnie Universit} of the Phtpindss Collet of Law; Professorial Lecturer in Criminal Law atthe Univeraty of Santo Tomas Faculty of Cut Lau: ‘Mandatory Continuing Legal Rducation (MCLE) Lecturer University ofthe East Law Center Former President, Integrated Bar of the Philippines, Mania ? Chapter; ‘oncering President, ocully Association, San Sebastin College Recoeto, Collegeof Las Master of Laws, San Sebactian College ~ Recoltoy, (conferred with bone merits, an honor equivalent to magna tum taude) ‘Bachelor of Laws, San Sebastian College Recoletog THIRD EDITION 2015 Published & Distributec by REX Book Store 856 Nleanor Reyes, 8 St, Tel Nos, 3605-67 = F951084 “1977 CAL Recto Avenue Tel Now. 735-6-27 735558 tanita, Pilppines www republishing com phSam tiny. Festty Gey ‘Lire 1. mesTiN ISBN 978-971-23-7798-3 XN No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of | the authorized representative of the publisher except, brief passages in books, articles, reviews, legal papers, and judicial or other official proceedings with proper citation. ‘Any copy of this book swithout-the corresponding number gnd the authorized signature of axthoron this page either, progecds from an illegitimate source or is Jn possession of one who has no authority to dispose of the same. ALL RIGHTS RESERVED BY THE AUTHOR No. 0791 Printed by REX pRiNTing company, inc. Tipestaphy Chee tinetanhy 20? rie Sour OY ee and you can fight battles with no danger of defeat. When you are ignorant of the enemy but know yourself, ‘Your chances of winning and losing are equal. Ifignorant both of your enemy and of yourself, you are sure to be defeated in every battle.” “SUN TZU The Art of WarPREFACE TO THE THIRD EDITION New year brings new hope, new excitement and renewed strength to conquer our fears and win our battles. It is in this note that the author finished the final draft of this comprehensive but simplified latest edition of the book in his endiering desire to equip students, bar reviewees, law professors, practicing lawyers, and common people with the latest laws, rules and jurisprudence related to special proceedings. ‘The pattern used by the author in this book is similar to the other books that he wrote, to wit: “Special Penal Laws Volumes I cand Il." They are all part of the foresight to the bar exam series. The style is concise, simple but comprehensive, undated with relevant and landmark decisions of the Supreme Court and with illustrations of bar questions and suggested answers. More particularly, this edition featured the following: 1. Statistical data of remedial law questions in the bar examinations to give readers a glimpse ofthe frequent topics that were asked in the bar. By this, the students, especially the reviewees, can easily identify the topics that they should give emphasis in studying 50 that they will be able to spend their remaining precious time in studying other bar subjects; 2 A chapter on Republic Act No. 10172 which amended the application of Republic Act No. 9048 (otherwise known as “The Clerical Error Act’). The new law, in addition to correction and change of first name in an administrative proceeding, now includes the correction of both the day and month of one's birth and the gender of a person in the certificate of live birth; 3. A chapter on Alternative Dispute Resolution (ADR). ADR is an efficient tool and an alternative procedure for the resolution. of appropriate cases. Italso encourages active private sector participation. in the settlement of disputes; 4. Acchapter on Writ of Kalikasan. (As destructions of the en- vironment are proliferating in our country.) The writ is a powerful tool of environmental advocates and members of the community to protect their right to a balanced and healthful ecoloxy;5. Inclusion of the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors into the Chapter on Habeas Corpus because ofits relevance to the latter; 6 Integration in each chapter of the latest jurisprudence issued by the Supreme Court. A great support to bar reviewees as it has been a trend for years that bar examinations questions /problems were patterned from latest decisions of the Supreme Court. The inclu: sion of latest jurisprudence in the book also provides convenience to students in their study of special proceedings and lawyers in their practice since references age readily available In particular, misunderstanding in the proceedings relating to the change or correction of names by lawyers and law students may now be avoided. The proper application are clearly explained in the recently decided cases relating to Rule 103 on Change of Name, Rule 108 on Cancellation and Correction of Entries in the Civil Registry, and Republic Act No. 9048 on the Clerical Error Act, as amended; Indication of doctrinal pronouncements of the Supreme Court iust before the facts and the issues of the digested cases are discussed. This ensures better retention by the students and reviewees of the most important principles which they may later need when they hurdle the bar examinations; Incorporation of legal forms into relevant chapters as it has been observed by the author that most bar reviewees were unable to thoroughly study the same, if not completely overlooked. Inclusion of egal forms in the book will also provide quick reference to practicing lawyers; and 7, Incorporation of all relevant bar questions in special pro- ceedings since 1990. In this manner, readers will have idea on how Special Proceedings are asked in the bar examinations. This will also result to their familiarization with each and every topic. The title: “Special Proceedings: A foresight to the bar exam” is ‘modified to include the term “practice of law.” Now it reads “Special Proceedings: A foresight to the bar exam and the practice of law.” Legal practitioners will find this book helpful in handling special proceedings cases. The book may aid judges in arriving at decisions. Itis with a prayer that the landmark and relevant jurisprudence, and the corresponding doctrinal pronouncements mentioned in this book, ‘as well as the amendments to the laws, the illustrations showing how the laws were applied and the legal forms and pleadings included at the end of each chapters will assist our officers of the court in their endeavor to seek the truth and administer what is fur, equal and just to all concern. The author hopes that the book will be a guide to all readers in studying Special Proceedings, The author also hopes that whatever readers will gain from this book will be intelligently used in their everyday lif Finally, the author hopes that this book will inspire others to also share their knowledge in whatever field of law that they may have their expertise GEMY LITO L. FESTIN 1 February 2015 ManilaPREFACE TO THE SECOND EDITION Despite its limitations, the heartwarming response to the first edition of this book and the encouragement of students and friends to come out with an updated version, were the reasons why this revised edition is published. Since the release of the first edition, new doctrinal decisions have been established by the Supreme Court in special proceedings, particularly in the grant of petitions for writ of amparo and habeas data, Several landmark cases in settlement of the estate, as well as correction /change of name, like the concept of Congenital Adrenal Hyperplasia (CAH) or known. as biological intersex condition, found its way in our jurisdiction. The author deemed it necessary t0 include the Supreme Court’s significant decisions rendered from the year 2008 to 2010, A new chapter, ‘The Clerical Error Act’ or R.A. No. 9048, was added s0 reviewees, who find difficulty in differentiating the same from Rule 103, Change of Name and Rule 108, Cancellation or Correction of Entries in the Civil Registry, may fully comprehend their narrow distinction. Incorporated in this edition are the various pleadings in special proceedings that are helpful to reviewees and practitioners as it provides a readily available reference to legal forms used in court proceedings. . Bar questions, question and answer presentation form, inclu sion of recent cases and amendments, and revision of laws and regu: lations are maintained in this edition. In some chapters, however, presentations were necessarily modified and errors were rectified to provide readers betier understanding of the topics. It is believed that with the release of the new edition, students and reviewees would continue to gain clear foresight of the bar exare invatuing speciat proceedings, as well as for practitioners and judges to find this book an indispensable tool in their quest to administer justice GEMY LITO L. FESTIN 01 February 2011 ManilaPREFACE TO THE FIRST EDITION The study of special proceedings is not an easy task. With too many amendments, repeal, revision and enactment of laws, as well as implementation of new rules and regulations, one should be careful not to be confused in the process of reading and absorbing the same. For this reason, the author incorporates these changes with diagrams and question and answer commentaries. For students to better appreciate and understand the concepts, and for the bar examinees who have no time to research on the recent decisions of the Supreme Court, the author took time to digest and include them with a foresight that it may help the examinees as they constitute a rich source of bar questions. As observed, among the subjects under remedial law, Special Proceedings is the least given priority by not a few bar reviewees. For this reason, the author came up with a book where a reviewee, or even a law student, can have an easy access to bar questions previously asked in Special Proceedings arranged according to codal provision 0 he can familiarize himself with the type of bar questions and give them an idea of what topics are commonly asked therein. Bar questions incorporated and cited in this book cover a period of twenty Bar questions. Question and answer presentation. Recent cases ‘and recent amendments, revision, and new laws and regulations. It bia the author's prayer to would-be lawyers that this book help them gain confidence and a foresight of what lies ahead. This book would likewise be of help to lawyers as it covers updated laws, Supreme Court Administrative Circulars, Supreme Court recent decisions and further discusses amendments to the Rules of Court on Special Proceedings. Topics such as Adoption, Guardianship, Correction of Entry and Change of Name, are given emphasis because of the many changes that were introduced in the past, Writs of Amparo and Habeas Data which recently made its way in our judicial system. GEMY LITO L. FESTINACKNOWLEDGMENT ‘The author expresses his deepest gratitude to his ever suppor- tive family; to Daniel Joseph — my little angel; Jaime —my inspiration; Jirah ~ my protégée; my wife, Vanessa, ever hardworking and moti vator of my life My parents: Captain Tomas Millares Festin (+) and Mama Leonida Lontoc Festin; the author's family: Simplicio, Lynor, Shirley, Alfredo, and Ma. Theresa; : ‘The Integrated Bar of the Philippines Greater Manila Region and the Manila I Chapter; Dean Nilo Divina and Dean Ferdinand Tan; ‘The Philippine Association of Law Schools; The staff of Rex Bookstore, Inc.; The officers and faculty members of the Law Faculty Association of Polytechnic University of the Philippines and San Sebastian College — Recoletos College of Law; ‘Ms, Alleth Fernando; The law students and staff of Polytechnic University of the Philippines College of Law, San Sebastian College-Recoletos College of Law, and the University of Santo Tomas Faculty of Civil Law, who continue to serve as the author's inspiration in his teaching career; To Jesus Christ, the Shepherd of my Soul. THE AUTHORDEDICATION To God, my Healer. The unfailing love of the Lora never ends! By His mercies we have been kept from complete destruction. Great is His faithfulness; His mercies begin afresh each day. I say to myself, “the Lord is my inheritance; Therefore, | will hope in Him!” The Lord is wonderfully good to those who wait for Him and seek Him. So it is good to those who wait quietly For salvation from the Lord. Lamentations 3:25A, STATISTICAL DATA PER YEAR: 2000-2014 REMEDIAL LAW BAR EXAMS ‘2002 | 2003 | 2008 | 2005 | 2006 seit [Civ Procedure o.on | 44.00% | 44.2% | 20 6%4| 45.00% | «7.00% | 75.00% jiminalProcedure | 19.23%| 15.00%| 26.47% [31.09% 35.00% | 17.00% 20.00% | |General Principles 15.38%} 24.00% 0.00% [13-79%| 5.00% | 0.00% | n.00% | B. STATISTICAL DATA PER TOPIC: 2000-2014 BAR QUESTIONS aor | 2008 [ a0ou | 2010 [ som | aoi2 | soi | ane [Tora fcwitPrecotare | soe] encrs| aoccn| arc] wenn] ssrox| snore] wsa0¥] so viniaal Procedure | 28076| x8o0%] roo] aa0c| raons| zasee| saoax| asoox) 220% videnee aon] scx] vs00%| asc soos] resen| zane] ron] ts0r Special Precedings | 20604] t200%| 1300s rane] so0| asm] a] r2ane| ey feaeral Preps | coon| ono] oo0x| cor] aos] isaxs| ase] son] 12s oval nim ona| 10 07 | onan | opaes| eas f ooo] ooo] ears] NOTES: 1 General Principles include Juviadition, Barangay Law end other special laws relate remedial lw 2 Diserepaney on 2002s due to 1 Bonus question (2.94% ofthe entire Bar em.) IN SPECIAL PROCEEDINGS a £ Rule 72 i. See. 1 - General [BAR Q. 2012] ji, Sec. 2— Application [BAR Q. 2008] Rule 73 i. Sec. 1 Venue [BAR @. 2003, 2005, 2011] Sec. 3 ~ Process [BAR Q. 2011] Rule 74 i, See. 1 — Extra judicial settlement (BAR Q. 2001, 2005, 2007, 2009] Rule 75 i, Sec, 1 ~ Allowance of Will [BAR Q. 2005, 2006, 2010, 2014] Rule 76 i, Custodian of Will [BAR Q. 2012] ji, See. 9—Grounds for Disallowance [BAR Q. 2011] Rule 77 i, Sec. 4~ Bstate, how administered [BAR Q. 2010] Rule 78 i, Letter of Testamentary [BAR Q. 2011] ii, Sec. 1 —Incompetent to serve [BAR Q. 2014] Rule 79 i. Petition for Letters of Administration [BAR Q. 2008] i, Sec, 1 - Opposition [BAR Q. 2010] Rule 80 i, Sec. 1 ~ Special Administrator [BAR Q. 2012] Rule 82 i, Revocation of Administration [RAR Q. 2002] Rule 86 i, Sec, 2 Statute of Non-Claims [BAR Q. 2012]u. i, See, 5 — Claims with Notice [BAR Q. 2009] iii, See. 10 Offset [BAR @, 2002 Rule 90 See. 1 —Distribution of Residue [BAR Q. 2002, 2011] Rule 91 i, Sec, 1 ~ When and by whom [BAR Q. 2002, 2012] Rule i. Sec. 1 ~ Appointment of Guardian [BAR Q. 2012] o. Rule 94 Sec. 1 ~ Bonds of Guardians [BAR Q. 2011] p. Rule 102 i. Seo, 1 Extent (BAR Q. 2003, 2005, 2007, 2011] fi, Sec. d~ When writ not allowed [BAR Q. 2003, 2008] aq. Rule 107 i, Sec, 2-Declaration of Absence [BAR Q. 2009] Rule 108 i, See, 2—Subject [BAR Q. 2005] fi, Sec, 8 ~ Parties [BAR Q. 2007] s. Rule 109 i, See, 1 Appeals in Special Proceedings [BAR Q. 2012] t. Domestic Adoption [BAR Q. 2012, 2014} 2, Writ of Amparo (BAR Q. 2009, 2010, 2011, 2012), v. Writ of Habeas Data [BAR Q. 2009, 2010, 2012] CIVIL PROCEDURE Rule 2 i, Joinder of Causes of Action [BAR Q. 2002, 2005, 2008, 2012, 2012} ii, Single Cause of Action [BAR @. 2000, 2002] iii, Splitting Causes of Action [BAR Q. 2005, 2010] iv, ‘Totality Rule [BAR @. 2008] v. Rules i. Real Parties in Interest [BAR Q. 2013] i, Misjoinder/Non-joinder of Parties [BAR Q. 2009, 2010, 2011) iii, Alternative Defendants [BAR Q. 2011] iv. Transfer of Interest [BAR Q. 2008] ¥. Action that survives [BAR Q. 2000, 2011] Rule 4 i. Venue [BAR @. 2009, 2011, 2022) Rule 6 i. Third, (fourth, etc.)-party complaint [BAR Q. 2012] ii, Counterclaim [BAR Q. 2004, 2007] iii, Permissive Counterclaim [BAR Q, 2011] iy, Reply [BAR Q. 2000} Rule7 i Signature, effect [BAR Q, 2012, 2013] i. Verification [BAR Q. 2011] iii, Forum Shopping [BAR Q. 2000, 2006, 2007, 2010, 2012) Rule 8 i. Specific Denial [BAR Q. 2004, 2011] fi, Actionable Document [BAR Q. 2010} Rule 9 i, Motu proprio Dismissal [BAR Q. 2012] ii. Default [BAR Q. 2000, 2001, 2002, 2006, 2007, 2011, 2012) Rule 10 i, Amendment as a matter of right [BAR Q. 2005, 2008] ii, By Leave of Court [BAR Q. 2013] iii, To conform to evidence (BAR Q. 2004, 2013] iv. Filing of Amended pleading [BAR @. 2000]Rule 12 n i. Bill of Particulars [BAR Q. 2003, 2008, 2012] Rule 18 i. Filing and service [BAR Q. 2011, 2012] Rule 14 i, Substituted Service of Summons [BAR Q. 2004, 2006, 2009, 2013) ii, Service upon entity without juridical capacity [BAR Q. 2013] iii, Extra-territorial Service [BAR @. 2008, 2013] iv. Proof of Service [BAR Q. 2008, 2013] . Rule 15 i, Motion, Requirements [BAR Q. 2000, 2007, 2012] t ii, Omnibus Motion [BAR @. 2010, 2011] Rule 16 a i. Grounds [BAR Q. 2009] ii, Resolution of Motion [BAR Q. 2012] ” iii Effects [BAR Q. 2010, 2011, 2012] Rule 17 w. i. Dismissal by Notice of Plaintiff [BAR @. 2011, 2012] ii, Dismissal by Motion of Plaintiff [BAR Q. 2010] x ii, Dismiseal due to fault of Plaintiff [BAR Q. 2008, 2013] y Rule 18 i, Pre-trial, When Conducted [BAR Q. 2001, 2009, 2011] Rule 19 5 i, Who may Intervene [BAR @. 2000, 2011] Rule 21 i, Subpoena [BAR Q. 2009] aa. ii Quashal [BAR Q. 2008] Rules 23-29 (Modes of Discovery) i, Deposition [BAR Q. 2022} ii, Interrogatories to Parties 1, Objections [BAR Q. 2012] 2. Scope and Use [BAR Q. 2008] fii. Admission by Adverse Party 1. Request [BAR Q. 2012] 2. Implied Admissicn [BAR Q. 2012} iv, Production or Inspection [BAR Q. 2002, 2009] ¥. _ Bifect of Refusal to Comply [BAR Q. 2010] Rule 30 i. Delegation to clerk of court [BAR Q, 2011, 2012] Rule 31 i, Consolidation [BAR Q. 2011] Rule 33 i, Demurrer [BAR Q. 2001, 2004, 2007] Rule 34 i, Judgment on the Pleadings [BAR Q. 2005, 2009] Rule 35 i, Cases not fully Adjudicated [BAR Q. 2004, 2011] Rule 36 i Judgment [BAR @. 2004, 2012] Rule 37 [BAR Q. 2011, 2013} i, New Trial ii, Reconsideration Rule 38 [BAR Q. 2009] i, Relief/Annulment of Judgment ii, Petition for Reliot Rule 39 i. Execution [BAR Q. 2002, 2007]ii, Satisfaction by levy [BAR Q. 2010] Terceria (BAR Q. 2000, 2011] iv, Judgment Obligee as purchaser [BAR Q. 2009] v. Examination of Judgment Obligor [BAR Q. 2002] vi, Bffect of judgment or final order [BAR Q. 2012] vii, Effect of Foreign Judgment [BAR Q. 2005, 2007, 2011] bb, Rule 40 i. Appeals from orders IBAR Q. 2026] ce. Rule 41 i. Modes of Appeals [BAR Q. 2009] ii, Period of Ordinary Appeal [BAR Q. 2009] iii, Notice of Appeal [BAR Q. 2008] iv. Perfection of Appeal [BAR Q. 2009] dd, Rule 43 i. Appeal for Quasi-judicial agency [BAR Q. 2012] ee. Rule 45 i. Petition for Review (BAR Q. 2002, 2009] ff, Rule 57 i, Preliminary Attachment [BAR Q. 2001, 2002, 2005, \ ismissing case without trial 2011, 2012] ii, Condition for applicant’s bond [BAR Q. 2008] gg. Rule 58 Preliminary Injunction [BAR Q. 2001, 2003, 2006, 2012] hh, Rule 59 i, Receivership [BAR Q. 2001, 2011) ii, Rule 60 i, Replevin [BAR Q. 2011] ii, Disposition of Property [BAR Q. 2011] Rule 61 i. Support pendente lite [BAR Q. 2001] Ik. Rule 62 Interpleader [BAR Q. 2012] IL Rule 63 i, Declaratory Relief [BAR Q. 2012] mm, Rule 64 [BAR Q. 2011] an, Rule 65 i. Certiorari [BAR Q. 2005, 2006, 2008, 2009, 2012, 2013) ii, Mandamus [BAR Q. 2001, 2006, 2011, 2012] 00, Rule 66 i, Venue [BAR Q. 2001] pp. Rule 67 i, Expropriation [BAR @. 2006, 2009, 2011] aq. Rule 68 i, Judgment on Foreclosure (BAR Q. 2000] fi, Sale of Mortgage [BAR @. 2003, 2011] iii, Deficiency Judgment [BAR Q. 2011] iv. Registration [BAR Q. 2012, 2013] rr, Rule 69 i. Partition [BAR Q. 2011] ss. Rule 70 i, Who and When [BAR Q. 2008} ii, Preliminary Conference [BAR Q. 2007] iii, Immediate Execution [BAR Q. 2009} ts, Rute TI i. Direct Contempt (BAR Q. 2011, 2012, 2013] ii, Indirect Contempt [BAR Q. 2012] uu. Small Claims [BAR Q. 2001, 2012, 2013] vv, Summary Procedure [BAR Q. 2004, 2012, 2013]mL. CRIMINAL PROCEDURE a, Rule 110 i. Institution of Criminal Action [BAR Q. 2010, 2013] ii, Who must Prosecute [BAR Q. 2000, 2012, 2013] iii, Designation of Offense [BAR Q. 2001] iv, Duplicity of the Offense [BAR @. 2011] v. Amendmgnt [BAR Q. 2001, 2002, 2005, 2011, 2013] vi, Venue [BAR Q. 2012, 2023] b, Rule 111 i. Civil Action; Prosecution [BAR Q. 2002, 2010] i. Institution [BAR Q. 2001] iii, Prejudicial Question [BAR Q. 2000, 2011] iv, Independent Civil Action [BAR Q. 2010, 2013] Rule 112 i. Preliminary Investigation [BAR Q. 2005] ii, Determination of Probable Cause [BAR Q. 2011] iii, Resolution and Review [BAR Q. 2009, 2012] iv. Warrant of Arrest [BAR @. 2003, 2004] v. Lawful arrest without warrant [BAR Q. 2011, 2012] vi, Exception to PI [BAR Q. 2012] Rule 113 i. Arrest without warrant [BAR Q, 2004, 2007, 2010] Rule 114 i. Matter of Right [BAR Q. 2006, 2011, 2013] fi, Discretionary [BAR Q. 2006, 2011, 2012] Capital Offense [BAR Q. 2011] iv, Burden of Proof [BAR Q. 2002] v. When not required [BAR @. 2011] vi, Where to file [BAR Q. 2002] i vii. Forfeiture [BAR Q. 2011] Cancellation [BAR Q. 2011] ix. Bail after judgment [BAR Q. 2008] Rule 115 i, Rights of the Accused [BAR Q. 2002, 2004, 2005, 2006, 2007, 2010, 2012, 2013] Rule 116 i, Arraignment, under preventive detention [BAR Q. 2012) ii, Plea to lesser offense [BAR Q. 2012] iii, Production or Inspection [BAR Q. 2009] iv. Suspension of Arraignment [BAR Q. 2012] Rule 117 i, Motion to Quash [BAR Q. 2012, 2013] ii, Grounds of Motion to Quash [BAR Q. 2005, 2009] iii, Double Jeopardy [BAR Q. 2002, 2003, 2004, 2010] iv. Provisional Dismissal [BAR Q. 2002, 2003, 2011, 2013) v, Failure of Move to quash [BAR Q. 2000, 2011] Rule 118 Admission in Pre-trial [BAR'Q. 2004, 2008] Rule 119 i, Time to prepare for trial [BAR Q. 2012] ii, State Witness [BAR Q. 2006, 2011, 2013) ili, Demurrer [BAR Q. 2001, 2003, 2004, 2007, 2009, 2013] Rule 120 i, Judgment of offense which includes another [BAR Q. 2004) ii, Promulgation of Judgment [BAR Q. 2012] iii, Modification [BAR Q. 2012]1 Rule 126 i iii, Search Warrant, definition [BAR Q. 2012] ‘Where to apply [BAR Q. 2008, 2012) Requisites [BAR Q. 2005, 2011, 2012] Issuance and Form [BAR Q. 2012] Validity of Searches [BAR Q. 2012] Validity.gf Search Warrant [BAR Q. 2012] Incidental to Arrest [BAR Q. 2003] Quashal of Search warrant [BAR Q. 2012] m, Rule 127 Attachment [BAR Q. 2013] IV. EVIDENCE a. General Principles [BAR Q. 2002, 2004] b. Rule 128 Admissibility [BAR Q. 2010] © Rule 129 Judicial Notice, Mandatory [BAR Q. 2005, 2011, 2012) Judicial Notice, Discretionary [BAR Q. 2005] a. Rule 130 Admissibility [BAR Q. 2000, 2013] Multiple Admissibility [BAR Q. 2005] Adoptive Admission [BAR Q. 2009] Independently Relevant Statement [BAR Q. 2009] Best Evidence [BAR Q. 2000] ‘Testimonial Evidence [BAR Q. 2012] |. Documentary Evidence [BAR Q. 2001, 2003] Parol Evidence [BAR Q. 2001, 2012] Witness, qualification [BAR Q. 2011, 2012, 2013] Marital Disqualification [BAR Q. 2000, 2004, 2006] xi, Dead Man’s Statute [BAR Q. 2001, 2007, 2011] xii, Privilege Communication [BAR Q. 2010, 2013] xiii, Admissions [BAR @. 2011, 2012] xiv. Res inter alios acta [BAR Q. 2003, 2008] xv. Admissions by Conspirator [BAR Q. 2011] xvi. Extrajudicial Confession [BAR Q. 2008, 2009] xvii, Previous Conduct [BAR Q. 2011] xviii, Hearsay Rule [BAR Q. 2002, 2011] xix. Hearsay, Exceptions [BAR Q. 2005, 2007, 2011, 2012) xx. Opinion Rule [BAR @. 2011] xxi, Character Evidence [BAR Q. 2002, 2010, 2011, 2013] Rule 181 i, Conclusive Presumptions [BAR Q. 2012] ii, Disputable Presumptions [BAR Q. 2011] Rule 132 i. Offer and Objections [BAR Q. 2011] ii, Public Document [BAR Q. 2011] fii, Official Records [BAR Q. 2009] iv, Lack of Record [BAR Q. 2003] ¥. Offer of Evidence [BAR Q. 2003, 2007, 2012] vi, When to offer [BAR @. 2012] vii, Objections, unnecessary repetition [BAR Q. 2012] viii, Striking out Answer [BAR Q. 2012] Rule 133 i. Quantum of Evidence [BAR Q. 2011] ii, Preponderance of Evidence [BAR Q. 2003] iii, Circumstantial Evidence [BAR @. 2011] vi, Substantial Evidence [BAR Q. 2003]Rules on Electronic Evidence [BAR Q. 2003, 2009, 2010, 2012) Child Witness Rule [BAR Q. 2005, 2012] Chain of Custody [BAR Q. 2011, 2012] DNA Evidence [BAR Q. 2004, 2009, 2010, 20121 CONTENTS CHAPTER 4 GENERAL PROVISION RULE 72 SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES CASES Montafier v. Shari’a District Court Sheker v. Estate of Alice Sheker Hilado v. Court of Appeals CHAPTER 2 RULE 73 eee SUBJECT OF ESTATE OF DECEAS CASES Quizon v. Belen Saludo, Jr. v. American Express International, Ine. RULE 74 SUMMARY SETTLEMENT OF ESTATES CASES Rebusquillo and Oroseo v. Sps. Gualvez... ‘Avelino v. Court of Appeals Sps. Benatiro v. Heirs of Cuyos RULE 75: ssininnnnsnnnnnnnnei ssn PRODUCTION OF WILL; ALLOWANCE OF WILL NECESSARY a CASE Pacioles, Jr. v. Chuatoco-Ching wee 39 39 61RULE 76 ... ALLOWANCE OR DISALLOWANCE OF WILL CASE Alaban v, Court of Appeals. RULE TT ALLOWANCE OF WILL PROVED OUTSIDE OF THE PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER. RULE 78 : LBTTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED .. : RULE 79 OPPOSING ISSUANCE OF LETTERS TESTAMENTARY PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION ee CASE Gaxcia-Quiazon v. Belen ...... RULE 80 SPECIAL ADMINISTRATOR CASE Tan v. Gedorio, Jr. RULE S81 BONDS OF EXECUTORS AND ADMINISTRATORS RULE 82 .... REVOCATION OF ADMINISTRATION, DEATH. RESIGNATION AND REMOVAL OF EXECUTORS AND ADMINISTRATORS RULE 83 INVENTORY AND APPRAISAL; PROVISION FOR SUPPORT OF FAMILY. : CASES ‘Aranas v. Mercado... = Heirs of Jose Sy Bang ¥- SY 1. 89 93 93 94 96 RULE 84 GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS — RULE 85 ACCOUNTABILITY AND COMPENSATION OF EXECUTORS AND ADMINISTRATORS RULE 86 CLAIMS AGAINST ESTATE... CASE Union Bank v. Ariola RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS CASE Rioferio v. Court of Appeals RULE 88 o : PAYMENT OF THE DEBTS OF THE STATE RULE 89 SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT... CASE Pahamotang v. PNB (RULE 90 freee eee ene DISTRIBUTION AND PARTITION OF THE ESTATE CASES Silverio, Jr. v. Court of Appeals Gregorio v. Madarang Royes-Mesugas v. Reyes .. Pacioles, Jr. v. Chnatoeo-Ching CHAPTER 3 RULESI ESCHEAT . 100 100 102 102 105 105 113 116 9 122 122 124 124 124 126 126 . 127 129 132 134 137 137CASES Republic v. Registry of deeds of Roxas City Republic v. Court of Appeals .. : CHAPTER 4 GUARDIANSHIP... PART I. AS PROVIDED UNDER THE RULES OF COURT . GENERAL GUARDIAN AND GUARDIANSHIP ... RULE 92 VENUE RULE 93 APPOINTMENT OF GUARDIANS CASES Alamayri v. Pabale Vaneil v, Belmes ... RULE 95 SELLING AND ENCUMBERING PROPERTY OF WARD RULE 96 GENERAL POWERS AND DUTIES OF GUARDIANS. RULE 97 . ‘TERMINATION OF GUARDIANSHIP CASES ‘Tonog v. Court of Appeals. Pablo-Gualberto v. Gualberto. Caiiiza v. Court of Appeals PART I. UNDER ADMINISTRATIVE CIRCULAR NO. 03-02-05-8C RULE ON GUARDIANSHIP OF MINORS CHAPTER 5 RULE 98 ‘TRUSTEES... 142 43 148 48 4s. 1438 152 152 156 187 160 160 161 161 163 163 163 165 166 167 4q7 a7 CHAPTER 6 ADOPTION PART I, INTRODUCTION AND GENERAL PRINCIPLES OF ADOPTION PART II, GOVERNING RULES AND LAWS... A. The Rules on Adoption. B. Distinctions between R.A. No. 8552 and R.A. No, 8043. PART IIL CASES CASES In re: Petition for Adoption of Michelle P. Lim Landingin v. Republic osssnnot In the Matter of the Adoption of Stephanie Garcia . Lahom v. Sibulo CHAPTER 7 PART I. RULE 102 HABEAS CORPUS CASES Kini v. The BID Salientes v. Abanilla. Gov. Ramos, PART II. THE RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION ‘TO CUSTODY OF MINORS. — CHAPTER 8 ‘THE WRIT OF AMPARO. A. DISTINCTION BETWEEN WRITS OF HABEAS CORPUS, AMPARO, AND DATA... B. BRIEF BACKGROUND ON THE WRIT OF AMPARO. ‘THE RULE ON THE WRIT OF AMPARO D. AMENDMENTS TO THE RULE ON THE WRIT OF AMPARO ee ° 179 179 185 185 185 191 191 194 196 198 203 208 203 21 . 216 222, 26 235 247 248, . 262,E. CASES In re: Petition for change of name and/or In the matter of the Petition for the Writ of Amparo correction/cancellation of entry in Civil and Habeas Data in Favor of Registry of Wang v. Cebu City Civil Rodriguez v. Macapagal-Arroyo... 264 Registrar... — . 325 Rubrico v. Macapagal-Arroyo : 266 Reyes v. Court of Appeals 269 CHAPTER 12 Tapuz v. Del Rosario 270 RULE 106. 327 ‘The Secretary of National Defense v. Manao ve 278 JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION Canlas v. Napico Hgmeowners A882 wooonnnnnene B14 OF MINOR NATURAL CHILDREN... ssssne B27 Caram v. Segui ... eee 275 Sps. Pador v. Argayan .... : 277 Co) ‘Aguilar v. DOJ = oa Ligaya Gapusan-Chua v. Court of Appeals. Lozada v. Macapagal-Arroyo =. ee a10 Uyguangeo v. Court of Appeals .. CHAPTER 9 CHAPTER 13 ‘THE WRIT OF HABEAS DATA ssn 284 ae 335 ene bas CONSTITUTION OF FAMILY HOME wncscscssonees 985 BL THE RULE ON THE WRIT OF HABEAS DATA. 286 Cuarrenta CASES RULE 107. 340 {in the matter of the Petition for the Writ of Habeas ABSENTEES 310 Data in favor of Saez. Macapagal-Arroyo soe 298 Meralco v. Lim sone see 295 CASES Roxas v. Macapagal-Arroyo. 297 Republic v. Cantor 346 Republic v. Court of Appeals, 346 CHAPTER 10 ‘THE WRIT OF KALIKASAN...... 299 Aes CASES RULE 108 349 Oposa v. Factoran .. 303 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY. 349 CHAPTER 11 CASES RULE 108 eranneneanonnne eee aoe 207) Silverio V. Republic woeniunnnnninnninnnennnenenene 856 CHANGE OF NAME. 307 Republic v. Cagandahan..... : 358 CASES Republic v. Labrador. Grande v. Antonio 2 319 ae Republic v. Coseteng-Mag 19 eee epube Kiernan oat Republic y. Olstar Republic v. Capote .. 323 Dela Cruz v. Garcia.CHAPTER 16 RULE 308.... APPEALS IN SPECIAL PROCEEDINGS... CASES Pefia v. LCN Construction Corp. Aranas ¥. Mercado.. Sps. Lebin v, Mirasol \ CHAPTER 17 ‘THE CLERICAL ERROR ACT, R.A. NO. 9048. CHAPTER 18 REPUBLIC ACT NO. 10172 CHAPTER 19 SPECIAL RULES OF COURT ON ALTERNATIVE DISPUTE RESOLUTION ........ . CASES: Koppel, Inc. v. Makati Rotary Club Foundation, Ine, J Plus Asia Development Com. v. Utility Assurance Corp. _ se APPENDICES APPENDIX A~ AM, NO. 02-11-12-8C ... Rule on Provisional Orders APPENDIX B - REPUBLIC ACT NO. 9255 An act allowing illegitimate children to use the surname of their father, amending for the purpose Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines’ APPENDIX C - REPUBLIC ACT NO. 8369 ‘The law establishing Family Courts and other Issuances APPENDIX D ~ A.M, NO. 02-11-10-SC Rule on declaration of absolute nullity of void marriages and annulment of voidable marriages 386 392 395, 418 429 433 437 438 443 APPENDIX D-1 - Dissenting opinion of Justice Panganiban on the Rule on Declaration of Absolute Nullty of Void Marriages and Annulment of Voidable Marriages 452 APPENDIX E ~ A.M. NO. 02-1.19-SC 459 Rule on Commitment of Children APPENDIX F — A.M. NO. 08-02-05-$C 469 ‘The Rule on Guardianship of Minors APPENDIX G ~ A.M. NO, 08-04-08 o.oo 476 ‘The Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors APPENDIX H — A.M. NO, 07-9-12-8€ 483 The Rule on the Writ of Amparo APPENDIX I — A.M. NO. 08-1-16-SC.... ‘The Writ of Habeas Data APPENDIX 5 ~ A.M, NO. 07-11-08-8C : Special Rules of Court on Alternative Dispute Resolution 495, APPENDIX K — A.M. NO. 09-6-8-5C... Rule 7~ "The Writ of Kalikasan 563 INDEX 559CHAPTER 1 GENERAL PROVISION RULE 72 SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES (BAR QUESTIONS: 1996, 1998, 2008, 2012) 1.01 DEFINE SPECIAL PROCEEDING. It is an application to establish the status or right of a party or a particular fact or any remedy other than an ordinary suit in a court of justice. 1.02 ARE THE LIST OF SUBJECT MATTERS UNDER SEC- ‘TION I OF RULE 72 EXCLUSIVE? No. Any petition which has for its main purpose the establish- ment of a status, right or a particular fact may be included as special proceeding. An example of this is a petition for declaration of nullity of marriage. It seeks to establish a status, a right, or a particular fact. 1.03 BAR Q. [2012] Which of the following is not a Spécial Proceeding? (A) Absentees (B) Escheat (©) Change of First Name (D) Constitution of Family Home 1.04 A. BAR Q. [1996, 1998] Distinguish civil action from special proceeding. SUGGESTED ANSWER: ‘The following are the distinctions: 1. A special proceeding under the same rule provides that it is a remedy by which a party seeks to establish a status, a 12 SPECIAL PROCEEDINGS right or a particular fact. Pursuant to Section 3, Rule 1 of the 1997 Rules of Civil Procedure, a civil action is one by which a party sues another for the enforcement or protec- tion of o right, or the prevention or redress of a wrong. 2, Unlike actions, a special proceeding is generally com ‘menced by application, petition or special form of pleading as may be prided for by the particular rule ot law. 3, In special proceedings, it does not pray for affirmative relief for injury arising from a party's wrongful act or ‘omission nor state a cause of action that can be enforced against any person. B. CASE MONTANER, et al. v. SHART'A DISTRICT COURT, 4TH SHARIA JUDICIAL DISTRICT, MARAWI CITY, DISANGCOPAN, et al. January 20, 2009 DOCTRINE: Unlike a civil action which has definite adverse parties, a special proceeding has no definite adverse party. ‘The Supreme Court held: ‘The prohibition against a decedent or his estate from being 2 party defendant in an ordinary civil action does not apply to a special proceeding such as the settlement of the estate of the deceased. ‘The definitions of a civil action and a special proceeding, res- poctively, in the Rules ilustrate this difference. A civil action, 2 which “a party sues another for the enforcement or protection ofa ght, or the prevention or redress of a wrong” necessarily has definite adverse parties, who are either the plaintiff or defendant. On the other hand, a special proceeding, “by which a party seeks to establish @ status, right, or a particular fact,” has one definite party, who petitions or applies for a declaration of a status, right, or particular fact, but no definite adverse party It bears emphasis that the estate of the decedent is not being sued for any cause of action. As a special proceeding, the purpose of the settlement of the estate of the decedent is to determine all the assets of the estate, pay its liabilities, and to distribute the residual ‘to those entitled to the same. RULE 22 3 Subject Matter and Applicgbility of Genera! Rules 1.05 SHOULD THE DETERMINATION OF THE LEGAL HEIRS OF THE DECRASED PERSON BE MADE IN THE SPECIAL PROCEEDINGS? ‘Yes, jurisprudence dictates that the determination of who are the legal heirs of the deceased must be made in the proper special proceedings in court, and not in an ordinary suit for recovery of own- ership and possession of property and this must take precedence over the action for recovery of possession and ownership. In this case, the Supreme Court had the occasion to explain why the trial court canuot make a declaration of heirship in an ordinary action. ‘The Court has consistently ruled that the trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding, Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong while a special proceeding is a remedy by which a party seeks to establish a status, right, of a particular fact. It is then decisively clear that the declaration of heitship ean be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right. (Heirs of Teofilo Gabatan v. CA and Lourdes Evero Pacana, G.R. No. 150206, March 13, 2009) 1.06 IS THERE AN EXCEPTION TO THE RULE ON THE NEED TO INSTITUTE A SEPARATE PROCEEDING FOR THE DETERMINATION OF HEIRSHIP? Jurisprudence dictates that the determination of who are the legal heirs of the deceased must be made in the proper special pro- ceedings on court, and not in an ordinary suit for recovery of owner- ship and possession of property. This must take precedence over the action for recovery of possession and ownership. By way of exception, the need to institute a separate special proceeding for the determination of heirship may be dispensed with for the sake of practicality, as when the parties in the civil case had voluntarily submitted the issue to the trial court and already pre- sented their evidence regarding the issue of heirship, and the RTC ‘had consequently rendered judgment thereon, or when a special pro: ceeding had been instituted but had been finally closed and termi-4 SPECIAL PROCEEDINGS nated, and hence, cannot be re-opened. (Heirs of Ypon v. Ricajorte, GAR. No. 198680, July 8, 2013) 1.07 IS LIQUIDATION PROCEEDING AN ORDINARY ACTION OR A SPECIAL PROCEEDING? [A petition for liquidation of an insolvent corporation should be classified as a special proggeding and not as an ordinary action. Such petition does not seek the enforcement or protection of a right nor the prevention or redress of a wrong against « party. It does not pray for affirmative relief for injury arising from a party's wrongful act or omission nor state a cause of action that can be enforced against any person. (Pacifie Banking Corporation Employees Organization v. CA, 242 SCRA 492 [1995)) 1.08 IS A PROCEEDING BEFORE THE SHARIA DISTRICT COURT AGAINST A DECEASED PERSON AN ORDI- NARY CIVIL ACTION OR A SPECIAL PROCEEDING? _Aproceeding before the Shari'a District Court for the settlement of the estate is deemed a special proceeding. MONTANER v. SHART'A DISTRICT COURT GR, No, 174975, January 20, 2009 DOCTRINE: The Court reiterates that the proceedings before the court a quo are for the issuance of letters of administration, settlement, and distribution of the estate of the deceased, which is a special proceeding. Section 8(c) of the Rules of Court (Rules) defines a special proceeding as “a remedy by which a party seeks to establish a status, a right, or a particular fact.” This Court has applied the Rules, particularly the rules on special proceedings, for the settlement of the estate of @ deceased Muslim. FACTS: In May 1995, Alejandro Montaiter, Sr. died leaving peti: tioners Laisa Kho, his wife, and his three children as heirs to his estate. Five years later, a complaint for judicial partition of properties of Alejandro, Sr. was filed before the Shari'a District Court by Liling Disangeopan and Almahleen Liling $. Montafier, who claimed that ‘Alejandro, Sr. was a Muslim and that they were his Grst family, Petitioners filed a Motion to Dismiss the complaint on the ground of lack of jurisdiction of the Shari'a Court, alleging that the decedent was a Roman Catholic. They also argued that the proceed: RULE 72 5 Subject Matter and Applicability of General Rules ing before the district court is an ordinary civil action against a deceased person. Said court dismissed the complaint, holding that the deceased was not a Muslim and the court's jutisdiction extends only to settlement of estate of deceased Muslims, Private respondent Liling filed a Motion for Reconsideration which was granted by the Shari'a District Court. It reconsidered its dismissal and allowed the respondents to adduce further evidence, Later, it ordered the continuation of the trial on merits. This was questioned by the petitioners. ISSUE: Whether or not the complaint filed by the respondents in the Shari’a District Court for the settlement of the estate is an ordinary civil action. RULING: The complaint filed by the respondents before the Sharia District Court for the settlement of the estate is a special proceeding. ‘The underlying assumption in petitioners’ argument that the proceeding before the Shari'a District Court is an ordinary civil action against a deceased person, rests on an erroneous understanding of the proceeding before the court a quo. Part of the confusion may be attributed to the proceeding before the Shari'a District Court where the parties were designated either es plaintiffs or defendants and the case was denominated as a special civil action. ‘The Court reiterates that the proceedings before the court a. quo are for the issuance of letters of administration, settlement, and dis- tribution of the estate of the deceased, which is a special proceeding. Section 3(¢) of the Rules of Court (Rules) defines a special proceeding, as “a remedy by which a party seeks to establish a status, a right, or a particular fact.” This Court has applied the Rules, particularly the rules on special proceedings, for the settlement of the estate of a deceased Muslim. Ina petition for the issuance of letters of administration, settle- ment, and distribution of estate, the applicants seek to establish the fact of death of the decedent and later to be duly recognized as among the decedent's heirs, which would allow them to exercise their right to participate in the settlement and liquidation of the estate of the decedent. Here, the respondents seek to establish the fact of Alejandro Montafier, Sr.’s death and, subsequently, for private respondent Almahleen Liling 8. Montaiier to be recognized as among his heirs, if evch is the case in fact.6 SPECIAL PROCEEDINGS |As a special proceeding, the purpose of the settlement of the estate of the decedent is to determine all the assets of the estate, pay its liabilities, and distribute the residue to those entitled to the same. 2.01 ARE THE RULES IN CIVIL ACTIONS APPLICABLE IN SPECIAL PROCEEDINGS? Yes, in the absence'ef special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. (Sec. 2, Rule 72 of the Rules of Court) A. BAR Q. [2008] ‘An heir/oppositor in a probate proceeding filed a motion to remove the administrator on the grounds of neglect of duties as administrator and absence from the country. On his part, the heir/oppositor served written interrogatories to the administrator preparatory to presenting the latter as a witness. The administrator objected, insisting that the modes of discovery apply only to ordinary civil actions, not special proceedings. Rule on the master. SUGGESTED ANSWER: I will deny the objection raised by the administrator. Under Section 2 of Rule 72, in the absence of special provisions, the rules provided for in ordinary actions shalll be, as far as practicable, appli cable in special proceedings. Hence, the provisions on modes of dis- ‘covery under the Rules of Court shall apply to special proceedings. B. CASE ALAN JOSEPH A. SHEKER v. ESTATE OF ALICE 0, SHEKER, VICTORIA S, MEDINA G.R. No. 157912, December 13, 2007 DOCTRINE: Provisions of the Rules of Court requiring a certi- fication of non-forum shopping for complaints and initiatory pleadings, a written explanation for non-personal service and filing, and the payment of filing fees for money claims against ‘an estate would not in any way obstruct probate proceedings, thus, they are applicable to special proceedings such as the settlement of the estate of a deceased person as in the present case. RULE 72 7 Subject Matter and Applicability of General Rules FACTS: The RTC admitted to probate the holographic will of Alice O. Sheker and thereafter issued an order for all the creditors to file their respective claims against the estate. In compliance therewith, petitioner filed a contingent claim for agent's commission due him amounting to approximately ®206,250.00 as reimbursement for ex- penses incurred and/or to be incurred by petitioner in the course of negotiating the sale of said realties ‘The respondent executrix moved for the dismissal of said money claim against the estate on the grounds that (1) the requisite docket fee, as prescribed in Section 7(a), Rule 141 of the Rules of Court, had not been paid; (2) petitioner failed to attach a certification against non-forum shopping; and (3) petitioner failed to attach a written explanation why the money claim was not filed and served personally. RTC issued the assailed Order dismissing without prejudice the money claim based on the grounds advanced by respondent. Petitioner insists that Section 2, Rule 72 of the Rules of Court provides that rules in ordinary aetions are applicable to special proceedings only in a suppletory manner ISSUE: Whether or not the RTC erred in dismissing petitioner's contingent money claim against respondent estate for failure of the petitioner to attach in his motion a certification against non-forum shopping. SC RULING: Section 2, Rule 72, Part Il of the same Rules of Court provides that in the absence of special provisions, the rules pro- vided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. Stated differently, special provisions under Part Il of the Rules of Court govern special proceedings; but in the absence of special provisions, the rules provided for in Part [ of the Rules governing ordinary civil actions shall be applicable to special proceedings, a8, far as practicable, The word “practicable” is defined as: possible to practice or per- orm; capable of being put into practice, done or accomplished. This means that in the absence of special provisions, rules in ordinary actions may be applied in special proceedings as much as. possible and where doing 80 would not pose an obstacle to said proceedings. Nowhore in the Rules of Court does it categorically say that rules in ordinary actions are inapplicable or merely suppletory to special proceedings8 SPECIAL PROCEEDINGS Provisions ofthe Rules of Court requiring a certification of on forum shopping for complaints and initiatory pleadings, a written ilunstien for non-personal service and filing, and the payment of filing fees for money claims against an estate would not in any way obstruet probate proceedings, thus, they are applicable to special proceedings such as the settlement of the estate of a deceased person as in the present case. \ 2.02 CASE ALFREDO HILADO, et al. v. COURT OF APPEALS G.R. No. 164108, May 8, 2009 DOCTRINE: Notwithstanding Section 2 of Rule 72, Interven- tion as set forth under Rule 19 does not extend to creditars of a decedent whose credit is based on contingent claim. FACTS: The well-known sugar magnate Roberto 8. Benedicto died intestate on May 18, 2000. He was survived by his wife, private respondent Julita Campos Benedicto (administratrix Benedicto), and his only daughter, Francisca Benedicto-Paulino. At the time of his death, there were two pending civil cases against Benedicto involving the petitioners. The first was then pending with the Regional Trial Court (RTC) of Bacolod City with petitioner Alfredo Hilado as one of the plaints. The second was then pending with the same RTC ‘of Bacolod City with petitioners Lopez Sugar Corporation and First Farmers Holding Corporation as among the plaintiffs. ‘Thereafter, private respondent Julita Campos Benedicto filed with the RTC of Manila a petition for the issuance of letters of administration in her favor, pursuant to Section 6, Rule 78 of the Revised Rules of Court. The Manila RTC issued an order appointing private respondent as administrator of the estate of her deceased husband. In January 2001, private respondent submitted an Inven: tory of the Estate, Lists of Personal and Real Properties, and Liabi lities of the Estate which included as among the liabilities, the above mentioned two pending claims then being litigated before the Bacolod City eourts. subsequently, petitioners filed with the Manila RTC » Mani furnished with copies of all processes and orders pertaining to the intestate proceedings. They also filed an omnibus motion praying that the Manila RTC set a deadline for the submission by private RULE 72 9 Subjeot Mattar and Applicabi 1 of General Rules respondent of the required inventory of the decedent's estate. In addition, the petitioners also filed other pleadings or motions with the Manila RTC, alleging lapses on the part of private respondent in her administration of the estate, and assailing the inventory that had been submitted as unverified, incomplete and inaccurate, ‘The Manila RTC denied the Manifestation/Motion, onthe ground that petitioners are not interested parties within the contemplation of the Rules of Court to intervene in the intestate proceedings. The Court of Appeals likewise dismissed the petition ISSUE 1: Whether or not creditors whose credit is based on contingent claim have the right to participate in the settlement proceedings by way of intervention under Rule 19 of the Rules of Court. ISSUE #: Whether or not petitioners, as persons interested in the intestate estate of the deceasesl person, are entitled to cop- ies of all processes and orders pertaining to the intestate pro- ceedings. RULING ON THE Ist ISSUE: Notwithstanding Section 2 of Rule 72, intervention as set forth under Rule 19 does not extend to creditors of a decedent whose credit is based on a contingent claim, The definition of “intervention” under Rule 19 simply does not accommodate contingent claims. Section 1, Rule 19 of the 1997 Rules of Civil Procedure requires that an intervenor “has a \egal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is 50 situated as to be adversely affected by a distribution or other disposition of property in the custody of the court x x x” While the anguage of Section 1 of Rule 19 does not literally preclude peti- tioners from intervening in the intestate proceedings, case law has, consistently held that the legal interest required of an intervenor “must be actual and material, direct and immediate, and not simply contingent and expectant.” Civil actions for tort or quasi-deliet where the claims of the petitioners are based do not fall within the class of claims to be filed lunder the notice to creditors requived under Rule 86. These actions, being as they are civil, survive the death of the decedent and may be commenced against the administrator pursuant to Section 1 of Rule 87.10 SPECIAL PROCEEDINGS RULING ON THE 2nd ISSUE: In the same manner that the Rules on Special Proceedings do not provide a creditor or any person interested in the estate the right to participate in every aspect of the testate or intestate proceedings, but instead provides for specific instances when such persons may accordingly act in those proceedings. The Court deems that while there is no general rightgo intervene on the part of the petitioners, they may be allowed to seek certain prayers or reliefs from the intestate court not explicitly provided for under the Rules, if the prayer or relief sought is necessary to protect their interest in the estate, and there is no other modality under the Rules by which such interests can be protected. Allowing creditors, contingent or otherwise, access to the records of the intestate proceedings is an eminently preferable precedent than mandating the service of court processes and pleadings upon them. In either case, the interest of the creditor in seeing to it that the assets are being preserved and disposed of in accordance with the rules will be duly satisfied. Nonetheless, in the instances that the Rules on Special Pro: ceedings do require notice to any or ail “interested parties,” the petitioners, as “interested parties,” will be entitled to such notice. ‘The instances when notice has to be given to interested parties are provided in: (1) Section 10 of Rule 85 in reference to the time and place of examining and allowing the account of the executor or administrator; (2) Section 7() of Rule 89 concerning the petition to authorize the executor or administrator to sell personal estate, or to sell, mortgage or otherwise encumber real estates; and (8) Section 1 of Rule 90 regarding the hearing on the application for an order to distribute the estate residue. After all, even the administratrix has acknowledged in her submitted inventory, the existence of the pending cases filed by the petitioners. CHAPTER 2 RULE 73 SUBJECT OF ESTATE OF DECEASED PERSONS (BAR QUESTIONS: 2003, 2005, 2009) 1.01 EXPLAIN SPECIAL PROCEEDING RELATIVE TO THE SETTLEMENT OF ESTATE,OF DECEASED PERSON. Special proceeding relative to the settlement of the estate of a deceased person may eitherbettestate or intestate, Wherethe deceased person left no will, the proceeding shall be intestate and where there is a will, the proceeding is testate. In which case, the probate of a will is mandatory. The same takes precedence over intestate proceedings. This being so, the institution of intestate proceeding in another place ‘may not proceed while the probate of a purported will of the deceased is pending in another place. 1.02 WHEN MUST THE CLAIMS AGAINST THE DECEASED PERSONS BE FILED? Claims against deceased persons should be filed during the settlement proceedings of their estate. Such proceedings are primarily governed by special rules found under Rules 73 to 90 of the Rules, although rules governing ordinary actions may, as fay as practicable, apply suppletorily. (Heirs of the Late Sps. Flaviano Maglasang and Salud Adaza-Maglasang, et al. v. Manila Banking Corporation, G.R. ‘No. 171206, September 23, 2013) 1.03 WHICH COURT HAS JURISDICTION OVER PROBATE, PROCEEDING? Pursuant to R.A. No. 7691, the question as to which court shall exercise jurisdiction over probate proceedings depends upon the gross value of the estate of the decedent, In Metro Manila, the Municipal ‘Trial Court has jurisdiction on the said proceeding if the value of the estate does not exceed 400,000.00, otherwise, the Regional ‘Trial Court has jurisdiction over the same. Outside Metro Manila, u2 SPECIAL PROCEEDINGS Municipal Trial Courts, Metropolitan Trial Courts and Municipal Circuit Trial Courts have jurisdiction over probate proceedings if the gross value of the estate left by the decedent does not exceed 300,000.00 beginning April 16, 2004 (before the said date, it was 200,000.00). 1.04 WHERE IS THR VENUE OF THE SETTLEMENT OF ESTATE PROCEEDING? ‘The residence of the decedent at the time of his death is deter minative of the venue of the proceeding. It is only where the decedent was a non-resident of the Philippines at the time of his death that venue lies in any province in which he had estate. 1.05 WHAT IS THE MEANING OF THE TERM “RESIDES? “Resides” should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence of place of abode. It signifies physical presence in & place and actual stay thereat. In this popular sense, the term means, merely residence, that is, personal residence, not legal residence or domicile, Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that particular place and also an intention to make one’s domicile. No particular length of time of residence is required though; however, the residence must be more than temporary. (Garcia Flule v. CA, 74 SCRA 189) ‘Venue for ordinary civil actions and that for special proceedings have one and the same meaning. As thus defined, “residence,” in the context of venue provisions, means nothing more than a person’s actual residence or place of abode, provided he resides therein with continuity and consistency. (Quiazon v. Belen, G.R. No. 189121, July 31, 2013) 1.06 COMPARATIVE TABLE ON JURISDICTION AND VENUE, IN SPECIAL PROCEEDINGS Kind of Special Proceedings ‘Jurisdiction and Venue 1. Settlement of Estate 1. RTC or MTC (depending on the (Rule 73) gross value of the estate) of the province where the deceased last resided. RULE 73 18 ‘Subject of Hetate of Deceased Persons 2, Bacheat ule 91) 2 incase the decedent is a non- resident of the Philippines at the time of his death, venue lies in any province in which he had an estate. RTC of province where the deceased last resided. In case the decedent is a non- resident of the Philippines at the ‘time of his death, venue lies in any province in which he he ceatate, 3. Guardianship a. Rule on Guardianship of Minors (AM. No. 03-02-05-8C) b, Guardianship over incompetent persons who are not minors under the Rules of Court (Rules 92-97) Family Court of province or city where the minor actually resides. Ifthe minor resides in a foreign country, in the Family Court of the province or city where his property or any part thereof is situated. RIC of the province or city where incompetent person last resided, Ifthe incompetent person resides in a foreign country, in the Family Court of the provinee or city where his property or any part thereof is situated. 4. The Rules of Adoption (AM. No. 02-6-02-8C) a. Effiled under the Domestie Adoption ‘Act (R.A. No. 8552) b. Iffiled under the Inter-Country Adoption Act (RA. No. 8043) Family Court of province or city where prospective adoptive parents reside, If the petition ta for Rescission of ‘Adoption of the Adoptee—Famnily Court of the city or province where the adoptee resides. (See, 19) Family Court having jurisdiction ‘over the place where the child resides or may be found (filed by a foreign national or Filipino citizen permanently residing abroad). It may be filed directly with the Inter-Country Adoption Board.“ SPECIAL PROCEEDINGS RULE? 16 Subject of Bstate of Deeoased Persons ‘Habeas Corpus a. Habeas Corpus for legal confinement or detention (Rule 102) N b, Habeas Corpus for custody of minors (AM, No, 03-04-04 80) 1. If filed with RTC, where the person is detained, SC, CA, and RTC have concurrent jurisdiction, *The writ of habeas corpus issued by the RTC shall be enforceable only within its judicial region Gee. 21, BP. Big. 129), 1. Family courts have exclusive jurisdiction (Family Courts Act ‘of 1997 [R.A. No. 8309). 2, Under the Rule on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors (A.M, No, 03:04-04-80), the petition may be filed with SC, CA or any of its members, and, if so granted, the writ shall bbe enforceable anywhere in the Philippines. 6 Amparo (AM. No, 07-9120) ‘SC, CA and Sandiganbayan, RTC If with the RTC: ‘The place where the threat, act or omission was committed or any of its elements occurred. (See. 3) 7. Habeas Data (AM. No, 08:1-16-80) ‘SC, CA and Sandiganbayan when the action concerns public data or files of government offices Ie with the RTC: 1, where petitioner resides; or 2, where respondent resides; or 3. that which has jurisdiction over the place where data or information is gathered, collected or stored, at the option of petitioner. (See. 3) & Change of Name (Rule 108) RIC of the province where the petitioner resides. (Sec. 1) 9, Absentees (Rule 107) RTC of place where absentee resided before his disappearance. (See. 1) RTC of the province where the corres. ponding Local Civil Registrar of place (Rule 108) is located. (See. 1) [iL The Clerical Error Aet | 1. Local eivil registry office of the city (RA. No. 9048) or municipality where the record being sought to be corrected o changed is kept; 2, Local civil registrar of the place ‘where the interested party is presently residing or domiciled 8. Philippine Consulates 1.07 WHAT ARE THE POSSIBLE CONSEQUENCES IF, IN THE COURSE OF INTESTATE PROCEEDING, A WILL IS LATER DISCOVERED? Whether the intestate proceeding already commenced should be discontinued and a new proceeding under a separate number and. title should be constituted is entirely a matter of form and lies within the sound discretion of the court. In no matter does it prejudice the substantial rights of any of the heirs or creditors. (Reynoso v. Santiago, 85 Phil. 268, 270) It has been held that the probate of the will is mandatory. It is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases. (Roberts v. Leonidas, 129 SCRA 33) fin the course of the intestate proceedings, itis found that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage, an administrator had already been appointed, the latter being required to render a final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice that the proceeding shall continue as an intestacy. (Uriate v. CFL of Negros, 33 SCRA 252, 259) However, the mere discovery of a document purporting to be the last will and testament of the decedent after appointment of an administrator and assumption that the decedent died intestate does, not, however, ipso facto nullify the letters of administration already16 SPECIAL PROCEEDINGS issued or even authorize their revocation until the will has been proved and allowed. (Advincula v. Teodoro, 99 Phil. 413) 1.08 WHAT IS THE NATURE OF THE SETTLEMENT OF ESTATE PROCEEDINGS? ‘The settlement of a decedent's estate is a proceeding in rem which is binding againstthe whole world. All persons having interest in the subject matter involved, whether they were notified or not, are equally bound. (Philippine Savings Bank v. Lantin, 124 SCRA 483) 1.09 WHAT MUST BE DONE IF THE NOTARIAL WILL IS CONTESTED? For notarial wills, Section 11 of Rule 76 provides that if the will is contested, all the subscribing witnesses, and the notary in thecase of wills executed under the Civil Code of the Philippines, if present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of such witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be taken, If any or all of them testify against the due execution of will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may nevertheless, be allowed if the court is satis: fied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. It is an established rule that “fal testament may not be disallowed just because the attesting witnesses declare against its due execution; neither does it have to be necessarily allowed just because all attesting witnesses declare in favor of its legalization; what is decisive is that the court is convinced by evidence before it, not necessarily from the attesting witnesses, although they must testify, that the will was or was not duly executed in the manner required by law.” (Baltazar v. Laxa, G.R. No. 174489, April 11, 2012) 1.10 WHAT IF A HOLOGRAPHIC WILL IS CONTESTED? ‘The possibility of false document being adjudged as the will of the testator cannot be eliminated, which is why if the holographic RULE 73, 1" Subject of state of Deceased Persons will is contested, the law requires three witnesses to declare that the will was in the handwriting of the deceased. (Codoy v. Calugay, G.R. No. 123486, August 12, 1999) It should be noted that 2nd paragraph of Section 11, Rule 76 provides that, “If a holographic will is contested, the same shall be allowed if at least three witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witness, and if the court deem it necessary, expert testimony may be resorted to” 1.11 CAN THE PROBATE COURT ISSUE WRITS OF EXECU- TION? No. Asa rule, the probate court cannot issue writs of execution because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the need of executor processes. 1.12 ARE THERE EXCEPTIONS? ‘The court may issue writs of execution on the following: 1. To satisfy the contributive shares of the devisees, legates and heirs on possession of the decedent's assets as laid down in Rule 88, Section 6; 2. To enforce payment of the expenses of partition under Rule 90, Section 3; 3. To satisfy the cost when a person is cited for examination in probate proceedings under Rule 142, Section 12. 1.18 BAR Q. [2005] x xx (3) State the rule on venue in judicial settlement of estate of deceased person. SUGGESTED ANSWER: Rule 73 of the Rules of Court expressly declares that if the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Regional Trial Court in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Regional Trial8 SPECIAL PROCEEDINGS Court of any province in which he had estate. The court first taking cognizance of the settlement of the estate of the decedent, shall exercise jurisdiction to the exclusion of all other courts. In case the marriage is dissolved by the death of the husband or wife, Section 2 of the said rule provides that the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testataor intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either. Note the changes made by R.A. No, 7691 on jurisdiction. 1.14 BAR Q. [2003} A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth P200,000.00. In what court, taking into consideration the nature of jurisdiction and venue, should probate proceeding on the estate of A be instituted? SUGGESTED ANSWER: : ‘The Municipal ‘Trial Court of Malolos, Bulacan has jurisdiction of the probate proceeding on the estate of A taking into account the amount of the estate involved valued at P200,000.00, (Sec. 33, B.P. Big. 129 as amended, Sec. 1, Rules of Court and R.A. No. 7691). Venue is in Bulacan as A is a resident of Malolos, Bulacan at the time of his death, Note: The determination of which court exercises jurisdiction over matters of probate depends upon the gross value of the estate of the decedent. R.A. No. 7691 provides that a municipal court has exclu- sive original jurisdiction over probate proceedings, where the value of the estate does not exceed P200,000.00 in places other than Metro Manila (Beginning April 16, 2004 however, the jurisdictional amount. other than in Metro Manila is adjusted to 300,000.00). 2.01 SECTION 4, RULE 73 OF THE RULES OF COURT PRO- VIDES FOR PRESUMPTION OF DEATH FOR PUR- POSES OF SETTLEMENT OF ESTATE. CITE RELATED PROVISIONS OF THE CIVIL CODE. Some of the related Civil Code provisions are the following: ARTICLE 390. Ajter an absence of seven years, it being unknown whether or not the absentee stil lives, he shail be presumed dead for all purposes, except for succession, RULE 73 9 Subject of Estate of Desoased Persons The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disap- pears after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. ARTICLE 391. The following shall be presumed dead for all ‘purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the lost ofthe vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (8) Apperson who has been in danger of death under other cir cumstances and his existence has not been known for four years. ARTICLE $92. If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rent. 2.02 BAR Q. [2009] Frank and Gina were married on June 12, 1987 in Manila, Barely a year after the wedding, Frank exhibited a violent temperament, forcing Gina, for reasons of personal safety, to live with her parents. A year thereafter, Gina found employ- ment as a domestic helper in Singapore, where she worked for ten consecutive years, All the time she was abroad, Gina had absolately no communications with Frank, nor did she hear any news about him. While in Singapore, Gina met and fell in love with Willie. On July 4, 2007, Gina filed a petition with the RTC of Manila to declare Frank presumptively dead, so thatshe could marry Willie. The RTC granted Gina’s petition. The Office of the Solicitor General (OSG) filed # Notice of Appeal with the RTC, stating that it was appealing the decision to the Court of Appeals on questions of fact and law. Is a petition for Declaration of Presumptive Death a special proceeding? Why or why not?20 ‘SPECIAL PROCEEDINGS SUGGESTED ANSWER: A petition for declaration of presumptive death is not included in the enumerations falling as a subject matter of a special proceed- ing under Section 1 of Rule 72. Such petition under Article 41 of the Family Code is a summary proceeding for the purpose of remarriage of the present spouse. However, it is in a nature of a special proceed- ing because it is an application that seeks to establish a status or @ particular fact. 2.03 IS PARTITION PROPER WHEN THERE REMAINS AN ISSUE AS TO THE EXPENSES CHARGEABLE TO THE ESTATE? No, in a situation where there remains an issue as to the expenses chargeable to the estate, partition is inappropriate. In the case of Gerilla v. Carolina uda. de Figuracion, et al., G.R. No. 154822, August 22, 2006, while petitioner points out that the estate is allegedly without any debt and she and respondents are the only legal heirs, she does not dispute the finding of the CA that “certain expenses” including those related to her father’s final illness and burial have not been properly settled, ‘The heirs, petitioner and respondents in this case, have to sub- mit their father’s estate to settlement because the determination of these expenses cannot be done in an action for partition. In estate settlement proceedings, there is a proper procedure for the accounting of all expenses for which the estate must answer. If there is any consolation at all to petitioner, the heirs or distributees of the properties may take possession thereof even before the settle- ‘ment of accounts, as long as they first file a bond conditioned on the payment of the estate's obligations. 2.04 CASES 1 QUIAZON v. BELEN G.R. No, 189121, July 31, 2013 DOCTRINES: 1. Under Section 1, Rule 73 of the Rules of Court, the petition for letters of administration of the estate of a decedent should be filed in the RTC of the province where the decedent resides at the time of his death. RULE 7S a ‘Subject of Bstate of Deceased Persons 2 As thus defined, “residence,” in the context of venue provisions, means nothing more than a person’s actual residence or place of abode, provided he resides therein with continuity and consistency. FACTS: Eliseo Quiazon died intestate. A petition for Letters of Administration of his estate was filed by his common-law wife Lourdes and his daughter Blise. This was opposed by the decedent's wife Amelia and children Jenneth and Jennifer on the ground of improper venue, The latter claimed that it should have been filed in Capas, Tarlac where Bliseo is a resident of and not in Las Pifias where he lived at the time of his death. ISSUE: Whether or not the proper venue for the filing of the Letters of Administration is in Las Pinas City or in Capas, Tarlac. SUPREME COURT'S RULING: The case was properly filed in Las, Pifias City, the place where the decedent resides at the time of his, death, Under Section 1, Rule 73 of the Rules of Court, the petition for letters of administration of the estate of a decedent should be filed in the RTC of the province where the decedent resides at the time of his death: “See. 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance now Regional Trial Court in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance now Regional Trial Court of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.” The term “resides” connotes ex ui termini “actual residence” as distinguished from “legal residence or domicile.” The term “resides,” interpreted in the light of the object or purpose of the statute or \ like the terms “residing” and “residence,” is elastic and should be I22 SPECIAL PROCEEDINGS rule in which it is employed. In the application of venue statutes and rules - Section 1, Rule 78 of the Revised Rules of Court is of such nature ~ residence rather than domicile is the significant factor. Even when the statute uses the word “domicile” still it is eonstruest to mean residence and not domicile in the technical sense. In other ‘words, “resides” should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place w abode. It signifies physical presence in a place and actual stay thereat. Venue for ordinary civil actions and that for special proceedings have one and the same meaning. As thus defined, “residence” in the context of venue provisions, means nothing more than a person's actual residence or place of abode, provided he resides therein with continuity and consistency. 2. SALUDO, JR. v. AMERICAN EXPRESS INTERNATIONAL, INC. GR. No. 159507, April 19, 2006 DOCTRINE: Section 1, Rule 73 of the Revised Rules of Court states that residence rather than domicile is the significant factor in determining venue. FACTS: Aniceto G. Saludo, Jr. filed a complaint for damages against AMEX and/orits officers with the RTC of Maasin City, Southern Leyte ‘The complaint alleged, inter alia, that plaintiff (herein petitioner Saludo) “is a Filipino citizen, of legal age, and a member of the House of Representatives and a resident of Ichon, Macrohon, Southern Leyte, Philippines.” The complaint’s cause of action stemmed from the alleged wrongful dishonor of petitioner Saludo's AMEX credit card and the supplementary card issued to his daughter. Respondents averred that the complaint should be dismissed on the ground that venue was improperly laid because none of the parties was a resident of Leyte. They alleged that respondents were not residents of Southern Leyte. Moreover, notwithstanding the claim in his complaint, petitioner Saludo was not allegedly a resident thereof as evidenced by the fact that his community tax certificate, which was presented when he executed the complaint’s verification and certification of non-forum shopping, was issued in Pasay City. ISSUE: Whether or not the appellate court committed rever- sible error in holding that venue was improperly laid because not one of the parties, including petitioner Saludo was a resident of Southern Leyte at the time of filing of the complaint. RULE 72 28 Subject of Batate of Deceased Persons SUPREME COURT'S RULING: The Court lays down the doctrinal rule that the term ‘resides? connotes ex vi termini ‘actual residence’ as distinguished from ‘legal residence or domicile’ This term ‘resides,’ like the terms ‘residing’ and ‘residence’ is elastic and should be interpreted in the light of the object or purposes of the statute or rule in which it is employed. Section 1, Rule 73 of the Revised Rules of Court states that residence rather than domicile is the significant factor in determining venue. Even where the statute uses the word ‘domicile’ still, it is construed as residence and not domicile in the technical sense, Some cases make a distinction between the terms ‘residence’ and ‘domicile’ but as generally used in statutes fixing venue, the terms are syno- nymous, and convey the same meaning as the term ‘inhabitant’ In other words, ‘resides’ should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make itone’s domicile. No particular length of time of residence is required though; however, the residence must be more than “temporary.”Pn SPECIAL PROCEEDINGS FORM: PETITION FOR THE SETTLEMENT OF THE INTESTATE ESTATE Republic of the Philippines National Capital Judicial Region Regional Trial Court, Branch 224 Quezon City In the Matter of the SettIament Of the Intestate Estate of X and the Issuance of Letters of Administration Juan Dela Cruz, Petitioner, PETITION COMES NOW, the Petitioner, by counsel and to this to this Honorable Court, most respectfully alleges: 1. Petitioner is of legal age, Filipino, married and with residence address at He is one of the principal creditors of the deceased. 2, On November 10, 2009, X died without leaving any will. At the time of his death, he was a resident of No. 8, ‘The deceased was survived by the following compulsory heirs, namely: G, surviving spouse and legitimate children R, W and B, all of legal ‘age and residents of No. x x x Tandang Sora Ave., Quezon City. 4. The deceased left several properties ut the time of his death, consisting primarily of real estate properties in Quezon City with a total market value of six million (P6,000,000.00) pesos and assessed value of four million (P4,000,000.00) pesos. 5. The deceased also left several obligations and personal debts at the time of his death, which needed to be settled before the estate is finally distributed to the heirs. Part of this debt include various mortgage loans ‘annotated in the titles and the sum of two million four pesos (P2,000,004.00), ‘which the deceased owed the petitioner as of 5 October 2008, as evidenced by the statement of account prepared by the accountant of the deceased hereto attached as Annex “A” and forms an integral part of this petition. 6, To finally settle the estate of the deceased, petitioner, being one of the principal creditors of the deceased, would like to aeok for the iseuance by this Honorable Court of Letters of Administration in order to make a full inventory and accounting of his estate, administer such estate, and RULE Ta 25 Sulbjoct of Bata of Deceased Persons settle any or all claims for and against such estate during the pendency of the estate proceedings prior to the distribution of the net estate to the compulsory heirs in view ofthe apparent neglect and/or continuing refusal of the compulsory heirs to settle such estate to the great damage and prejudice of the creditors like herein petitioner. A copy of the demand letter sent by petitioner, through counsel, to the heirs of the deceased is hereto attached as Annex “B” and forms an integral part of this petition, 7. Petitioner is not personally aware of any judicial proceeding commenced by the heirs or by the ather interested parties to settle the estate of the deceased since the death of X on November 10, 2009, Petitioner, as creditor, may therefore, be appointed as an administrator of the estate. Sec 6, Rule 78 of the Rules of Court provides: “IF no exocutor is named in the will, or the executor or executors are incompetent, refuse the trust or fail to give bond, or a person dies intestate, administration shall be granted: (@) To the surviving husband or wife, ae the case may be, or next of kin, or both, in the discretion of the court, or to stich person tas such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve, @®) euch surviving husband or wife, as he ease may beor next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve, xxx" (emphasis ours) 8. _ Petitioner has none of the diequalifications under Section 1, Rule 78 of the Rules of Court, as amended. 9. Petitioner is thus qualified under the Iaw, and is competent and willing to assume such solemn duty of administering the estate of the deceased, whom he considers as his best friend and brother anyway during his lifetime. And for this purpose, petitioner is willing to post a bond that may be fixed by this Honorable Court conditioned upon the circumstances enumerated under Section I, Rule 81 of the Rules of Court, as amended, WHEREFORE, promises considered, itis most respectfully prayed of this Honorable Court, that after due notice, settlement and partition of the intestate estate of X for the benefit of all the compulsory heirs be rendered by this Court in accordance with law. Petitioner prays for such other reliefs just and equitable in the premises 10 January 2011, Quezon City.26 ‘SPECIAL PROCEEDINGS SUAN DELA CRUZ Roll No. 40328 PTR No, 6332143 1/14/2015 TBP No, 690130 1/8/2015 ‘MCLE Compliance IV-0008269-02/28/10 "Tel. No. (02) 416-9900 Cell Phone No. 0920 1294567 E-Mail Adress: jhimfes2@yahoo.com ‘No 222 Wheels Executive Suites Wheels Blag., E. Rodriguez Sr. Avenue, Quezon City, 1102 VERIFICATION AND CERTIFICATE OF NON-FORUM SHOPPING RULE 74 SUMMARY SETTLEMENT OF ESTATES (BAR QUESTIONS: 1994 (Sections 1 and 2], 1998, 2001, 2005, 2009) 1.01 WHAT IS THE RULE WITH RESPECT TO THE ESTATE, LEFT BY THE DECEDENT? ‘The general rule is that when a person dies leaving property, the same should be judicially administered and the competent court should appoint 4 qualified administrator, in the order established in Section 6 of Rule 78, in case the deceased left no will, or in case he had left one, should he fail to name an executor therein. (Utulo v Pasion Vda. de Garcia, 66 Phil. 303) 1.02 ARE THERE EXCEPTIONS TO THE RULE THAT THE ESTATE SHOULD BE JUDICIALLY ADMINISTERED? Yes. This Rule provides two exceptions, namely: (1) Extrajudicial settlement (See. 1); and (Summary settlement of estates of small value (See. 2). 1.08 BAR Q. (2001] : The rules on special proceedings ordinarily require that the estate of the deceased should be judicially administered through an administrator or executor. What are the two ex- ceptions to the said requirement? SUGGESTED ANSWER: ‘The two exceptions to the rule that the estate of the deceased should be judicially administered through an administrator or exe- cutor are the following: 1) If the decedent left:no will and no debts and the heirs are all of legal age, the parties may, without securing letters of admin- istration, divide the estate among themselves by means of public ins- trument or by stipulation in a pending action for partition and shall a28 SPECIAL PROCEEDINGS file a bond with the register of deeds in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned. The fact of extrajudicial settlement shall be published in a newspaper of general cireulation once a week for three consecutive weeks in the province. 2) Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed tent thousand pesos, and that fact is made to appear to the Regional Trial Court having jurisdiction of the estate by the petition of an interested person and upon hearing, which shall be held not less than (1) month nor more than three (8) months from the date of the last publication ofa notice which shall be published once a week for three consecutive weeks in a newspaper of general circuletion in the province, and after such other notice to interested persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, to settle the estate. 1.04 DISTINGUISH EXTRAJUDICIAL SETTLEMENT UN- DER SECTION 1 FROM SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE UNDER SECTION 2 OF RULE 74. ‘The distinctions are as follows: [ EXTRAJUDICIAL SUMMARY ‘SETTLEMENT SETTLEMENT ‘Requires summary court 1. Does not require court intervention. adjudication, 2, ‘The value of the estate is Applicable where the gross immaterial. value of the estate is P10,000.00. ‘The amount is jurisdictional. 3, Allowed only in intestate Allowed in both testate and succession, intestate estates. 4. Proper when there areno _| Available even if there are outstanding debts of the estate | debts. at the time of the settlement, 5, Instituted by agreement of all | Instituted by any interested heirs. party and even by a creditor of the estate, without the consent of all the heirs. RULE M4 29 Summary Settlement of Hstates 1.05 WHAT ARE THE REQUISITES OF A VALID EXTRA- JUDICIAL SETTLEMENT? The following are the requisites of a valid extrajudicial settle ment: (1) The decedent died intestate; (®) The estate has no outstanding debts at the time of the settlement; (3) The heirs are all of age, or the minors are represented by their judicial guardians or legal representatives; (4) The settlement is made in a public instrument, stipulation or affidavit duly filed with the register of deed; and (6) The fact of such judicial settlement must be published in ‘a newspaper of general circulation in the province once a week for three consecutive weeks. ©) Incase of personal property, a bond equivalent to the value of personal property posted with the Register of Deeds is required. 1.06 WHAT IS SUMMARY SETTLEMENT OF ESTATE OF SMALL VALUE? It is a summary proceeding for the settlement of the estate of ‘a deceased person whether he died testate or intestate if the gross value of the estate is 10,000.00 without need of an appointment of an administrator or executor. 1.07 BAR Q. [2005] x x x 2, Nestor died intestate in 2003, leaving no debts. How may his estate be settled by his heirs who are of legal age and have legal capacity? Explain. SUGGESTED ANSWER: ‘The Rules of Court particularly Section 1 of Rule 74 is applicable on the matter. If the decedent left no will and no debts, as in the case of Nestor, and the heirs are all of legal age, his heirs may without securing letters of administration, divide the estate among themselves by means of public instrument or by stipulation in a pending action for partition and shall file a bond with the register of deeds in an amount equivalent to the value of the personal property20 SPRCIAL PROCEEDINGS involved as certified to under oath by the parties concerned. ‘The fact of extrajudicial settlement shall be published in a newspaper of general circulation once a week for three consecutive weeks in the province. 1.08 WHAT IS AN AFFIDAVIT OF SELF-ADJUDICATION? It is an affidavit required by Section 1 of Rule 74 that is to be executed by the sole heir of a deceased person in adjudicating to himself the entire estate left by the decedent. It is filed with the Registry of Deeds. ‘The Rule provides that the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a 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 concerned and conditioned upon the payment of any just claim that may be filed under Section 4 of this rule Adjudication by an heir of the decedent's entire estate to him- self by means of an affidavit is allowed only if he is the sole heir to the estate. (Delgado Vda. de De la Rosa v. Heirs of Marciana Vda. de Damian, 480 SCRA 334) 1.09 RECENT CASE REBUSQUILLO and OROSCO v. SPS. GUALVEZ G.R. No, 204029, June 4, 2014 SUPREME COURT'S RULING: ‘The Court cited the case of Portugal v. Portugal-Beltran where it held that the respondent, believing rightly or wrongly that she was the sole heir to Portugal's estate, executed on February 15, 1988 the questioned Affidavit of Adjudication under the second sentence of Section 1, Rule 74 of the Revised Rules of Court. Said rule is an exception to the general rule that when a person dies leaving a property, it should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Section 6 of Rule 78 in case the deceased left no will, or in case he did, he failed to name an executor therein. RULE 1 at Summary Settlement of Estates In light of the admission of respondent-spouses Gualvez, the court a quo had properly rendered judgment on the validity of the Affidavit of Self-Adjudication executed by Avelina. As pointed out by the trial court, an Affidavit of Self-Adjudication is only proper when the affiant is the sole heir of the decedent, The second sentence of Section 1, Rule 74 of the Rules of Court is patently clear that self: adjudication is only warranted when there is only one heir: Section 1. Estrajudicial settlement by agreement between heirs — x xx If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. x x x (emphasis supplied) As admitted by respondents, Avelina was not the sole heir of Bulalio, In fact, petitioner Salvador is one of the co-heirs by right of representation of his mother. Without a doubt, Avelina had per- jured herself when she declared in the affidavit that she is “the only daughter and sole heir of spouses EULALIO ABARIENTOS AND VICTORIA VILLAREAL.” The falsity of this claim renders her act of adjudicating to herself the inheritance left by her father invalid, 1.10 WHEN DOES THE PRESUMPTION THAT THE DECE- DENT LEFT NO DEBTS ARISE? It shall be presumed that the decedent left no debts if no eredi- tor files a petition for letters of administration within two years after the death of the decedent. 1.11 BAR Q. [1994] Rene died intestate, leaving several heirs and substan- tial property here in the Philippines. 1) Assuming Rene left no debts, as counsel for Rene’s heirs, what steps would you suggest to settle Rene's estate in the least expensive manner? 2) Assuming Rene left only one heir and no debt, as counsel for Rene’s lone heir, what steps would you suggest? SUGGESTED ANSWER: 1) Itis humbly submitted that to settle Rene’s estat least expensive manner, an extrajudicial settlement of estate by agreement of the parties should be made through a publie instrument to be filed with the register of deeds together with a bond in an in the32 SPECIAL PROCEEDINGS amount equivalent to the value of the personal property involved as certified under oath by the parties concerned and conditioned upon payment of any just claim that may be filed within two years by an heir or other person unduly deprived of participation in the state. 2) Rene’s lone heir may adjudicate to himself the entire estate by executing an affidavit of self-adjudication to be filed with the Register of Deods andupon submission of other requirements 1.12 BAR Q. [1998] A, claiming to be an illegitimate child of the deceased D, instituted an intestate proceeding to settle the estate of the latter. He also prayed that he be appointed administrator of said estate. S, the surviving spouse, opposed the petition and A’s application to be appointed the administrator on the ground that he was not the child of her deceased husband D. The court, however, appointed A as the administrator of said estate, Subsequently, S, claiming to be the sole heir of D, executed an affidavit of self-adjudication, adjudicating unto herself the entire estate of her deceased husband D.S sold the entire estate to X. 1 xxx 2. Was the action of S in adjudicating the entire estate of her late husband to herself legal? SUGGESTED ANSWER: ‘The action of S in adjudicating the entire estate af her late husband to herself is not legal because under the Rules of Court, an affidavit of self-adjudication is allowed only if the affiant is the sole heir of the deceased. In this case, it appears that there is someone ‘who also claims to be an heir. The fact that there is a pending judicial proceeding for the settlement of the estate would suggest that there is doubt as to whether she ia indeed the sole heir to the estate. § action therefore, is not proper. 1.13 BAR Q. [1994] Rene died intestate, leaving several heirs and substantial property here in the Philippines. xxx 2) xxx RULE 74 33 Summasy Settlement of Bstates 3) Assuming that the value of Rene’s estate does not exceed P10,000.00, what remedy is available to obtain a speedy settlement of his estate? SUGGESTED ANSWER: 1D xxx 2 xxx 3) To obtain a speedy settlement of his estate, the remedy available is to proceed to undertake a summary settlement of estate of small value under Section 2, Rule 74 of the Rules of Court since Rene's estate does not exceed P10,000.00. The hearing shall be held not less than one month nor more than three months from the date of the last publication of « notice which shail bo published once a week for three consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, to settle the estate, 2.01 THE RULE BARS DISTRIBUTEES OR HEIRS FROM OBJECTING TO AN EXTRAJUDICIAL PARTITION AFTER, ‘TWO YEARS FROM SUCH PARTITION. IS THE RULE APPLICABLE TO PERSONS WHO HAD NO KNOWLEDGE OF IT? No, the limitations are not applicable. The provisions of Sec- tion 4 of Rule 74 barring distributee or heirs from objecting to an ‘extrajudicial partition after the expiration of two years from such extrajudicial partition, is applieable only to: (1) persons who have participated or taken part or had notice of the extrajudicial partition; and, in addition, (2) when the provisions of Section 1 of Rule 74, have been strictly complied with. (Sampio v. CA, 103 Phil. 71) 2.02 IF A PERSON HAD NO KNOWLEDGE OR HAD NOT PARTICIPATED IN THE EXTRAJUDICIAL SETTLI MENT, IS HE BOUND THEREBY BY REASON OF CON- STRUCTIVE NOTICE OF PUBLICATION? No. Publication in this case does not constitute constructive notice. Extrajudicial Settlement of Estates under Section 1 af Rule 744 SPECIAL PROCEEDINGS is an ex parte proceeding, and the rule plainly states that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby, and contemplates a notice that has been sent outor issued before any deed of settlement or partition is agreed tupon, and not after such an agreement has already been executed. ‘The publication ofthe settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it beeause the same was notice afte™the fact of execution. The requirement of publieation is geared for the protection of creditors and was never {intended to deprive heirs of their lawful participation in the decedent's estate, (Benatiro v. Heirs of Cuyos, 560 SCRA 478) 2.03 BAR @. {2008} Pinoy died without a will. His wife, Rosie, and three child- ren executed a deed of extrajudicial settlement of his estate. ‘The deed was properly published and registered with the Office of the Register of Deeds, Three years thereafter, Suzy appeared, claiming to be the illegitimate child of Pinoy. She sought to annul the settlement alleging that she was deprived ofher rightful share in the estate. Rosie and the three children contended that (1) the publication of the deed constituted constructive notice to the whole world, and should therefore bind Suzy; and (2) Suzy’s action had already prescribed. Are Rosie and the three children correct? Explain. SUGGESTED ANSWE! No, the publication of the deed of extrajudicial partition does not constitute constructive notice to the whole world since Rule 74, Section 1 provides that “no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof” Suzy's action has not prescribed. She can file the action ‘therefore within four years after the settlement was registered. 2.04 IF THE CLAIMANT IS 4 MINOR OR AN INCAPACITATED PERSON, WHAT IS THE PERIOD TO FILE THE CLAIM? Section 8 provides that if on the date of the expiration of the period of two years prescribed in Section 4 the person authorized to ‘tle wdlaimnis a minor or mentally incapacitated, oF is in prison or ou wide the Philippines, he may present his claim within one year after such disability is removed. RULE 74 35 Summary Settlement of Batatos 2.05 MAY A PETITION FOR ISSUANCE OF LETTERS OF ADMINISTRATION BE CONVERTED INTO AN ACTION FOR JUDICIAL PARTITION? Yes, when the more expeditious remedy of partition is available to the heirs, then the heirs or the majority of them may not be compelled to submit to administration proceedings. In this case, all the heirs, with the exception of one, agreed to judicial partition as they see it to be the more convenient method. There is no merit to the contention that a partition cannot be had because the extent of the estate is not yet determined. (Maria Socorro v. Court of Appeals, GR. No, 115181, March 31, 2000) It must be noted that the basis for converting the action is Sec- tion 1, Rule 74 of the Rules of Court. It provides that in eases where the heirs disagree as ta the partition of the estate and no extrajudi- cial settlement is possible, then an ordinary action for partition may be resorted to. This is exemplified in the case of — MARIA SOCORRO AVELINO v. COURT OF APPEALS G.R. No. 115181, March 31, 2000 FACTS: Petitioner Maria Socorro Avelino is a daughter and com- pulsory heir of the late Antonio Avelino, Sr., and the private respon- dent is his wife, Angelina Avelino. Petitioner filed before the RTC a petition for the issuance of letters of administration of the estate of Antonio Avelino, Sr., who died intestate on April 10, 1989. She acked that she be appointed the administrator of the estate. Respondents Angelina and the siblings filed their opposition by filing a motion to convert the said judicial proceedings to en action for judicial partition which petitioner duly opposed. Public respondent judge granted the partition. Thus, petitioner Seda motion for reconsideretion which wae denied, Petitioner went. the Court of Appeals and questioned the grant of private respondents’ motion to convert the judicial proceeding for the issuance of letters of administration to an action for judicial partition ISSUE: Whether or not respondent appellate court committed an error of law and gravely abused its discretion in upholding the trial court’s finding that a judicial partition ie proper. SUPREME COURT'S RULING: The heirs succeed immediately to ‘ll the rights and properties of the deceased at the moment of the36 SPECIAL PROCEEDINGS latter's death, Section 1, Rule 74 of the Rules of Court, allows heirs to divide the estate among themselves without need of delay and risks of being dissipated. When a person dies without leaving pend- ing obligations, his heirs, are not required to submit the property for judicia) administration, nor apply for the appointment of an admin. istrator by the court, ‘The Court of Appeal committed no reversible error when it rruled that the lower court did not err in converting petitioner's action for letters of administration into an action for judicial partition. Nor can the Court sustain petitioner's argument that the Order of the trial court converting an action for letters of administration to one for judicial partition has no basis in the Rules of Court, hence procedurally infirm. The basis for the trial court's Order is Section 1, Rule 74 of the Rules of Court. It provides that in cases where the heirs disagree as to the partition of the estate and no extrajudicial settlement is possible, then an ordinary action for partition may be resorted to, as in this case, 3.02 CASE SPS. BENATIRO v. HEIRS OF EVARISTO CUYOS G.R. No. 161220, July 80, 2008 DOCTRINE: The publication of the settlement does not consti- tute constructive notice to the heirs who had no knowledge or did not take part in it because the same was natice after the fact of execution. FACTS: When Evaristo Cuyos died in 1966, he left six parcels of land in Daanbantayan, Cebu, Gloria, one of Evaristo's nine children, was appointed as administrator of his estate. Subsequently, Atty. ‘Taneo, the Clerk of Court of the CFI which granted the letters of administration to Gloria, was appointed to act as Commissioner in charge to effect the agreement of the heirs and to prepare the project of partition of the estate. In his report, Atty. Tanco stated that in a conference to arrive at an agreement for partition attended by six out of nine heirs, it was agreed that the properties of the estate would be sold to one of the Columba Cuyos Benatiro, one of the heirs of the decedent. Finding the terms of the agrooment in order, the CFI approved the compro- mise agreement embodied in the Commissioner's Report. Thus, to implement the agreement, Lope, the new administrator, executed a RULE 74 a ‘Summany Settlement of Estates Deed of Absolute Sale in favor of Columba. Later, the titles to the parcels of land acquired by Columba were subsequently transferred to Sps. Renato and Rosie Benatiro, also herein petitioners, _, 10 February 1998, or nearly 20 years later, four of the heirs, Gloria, Patrocenia, Numeriano and Enrique, fled with the CA a peti tion for the annulment of the CFI order which approved the compro: mise agreement, claiming that the Commisioner's Report practically deprived them of due process, in that no meeting between the heirs ever took place and that they never received any payment from the sale of their share in the inheritance, CA granted the petition and annulled the CFI order, concluding that the conference was not held accordingly. It rationalized that the Report never mentioned any of the names of those present, but only mentioned the names of those who were absent; that the report did not contain the signatures of those present; and that no evidence of notice ofthe conference to the respondents was presented. CA held that since the order stemmed from a void compromise ngreement, the annulled order had no legal effect. ISSUE: Whether or not the order of the trial court approving the Commissioner's Report (on compromise agreement without notice) is valid. SUPREME COURT'S RULING: No. The assailed order, which approved a void Commissioner's Report, is void far lack of due process. In Cua v, Vargas, in which the issue was whether heirs were deemed constructively notified of and bound by an extrajudicial settlement and partition of the estate, regardless of their failure to participate therein, when the extrajudicial settlement and partition has been duly published, the Court held The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not Participate or had no notice of an extrajudicial settlement will not be bound thereby. It contemplates a notice that has been sent out or issued before any deed of settlement and /or partition is agreed upon (ie, a notice calling all interested parties to participate in the said deed of extrajudicial settlement and partition), and not after such an agreement has already been executed as what happened in the instant case with the publication of the first deed of extrajudicial settlement among heirs.8 SPECIAL PROCEEDINGS ‘The publication of the settlement does not constitute construe: tive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution. The requirement of publication is geared for the protection of creditors ‘and was never intended to deprive heirs of their lawful participation in the decedent's estate. In this connection, the records of the present case confirm that respondents never signed either of the settlement documents, having discovered their existence only shortly before the filing of the present complaint. Following Rule 74, these extrajudicial settlements do not bind respondents, and the partition made without their knowledge and consent is invalid insofar as they are concerned. [Applying the above-mentioned case by analogy, what matters is whether the heirs were indeed notified before the compromise agree- trent was arrived at, which was not established, and not whether They wore notified of the Commissioner's Report embodying the alleged agreement afterwards ‘The Court also finds nothing in the records that would show that the heirs wore called to a hearing to validate the Report. The CFI adopted and approved the Report despite the absence of the signatures of all the heirs showing conformity thereto. The CFI adopted the Report despite the statement therein that only six out of the nine heirs attended the conference, thus, effectively depriving the other heirs of their chance to be heard. The CFT’s action was tantamount to a violation of the constitutional guarantee that no person shall be deprived of property without due process of law. The Court finds that the assailed Order dated December 16, 1976, which ‘approved a void Commissioner's Report, is a void judgment for lack cof due process. RULE 75 PRODUCTION OF WILL ALLOWANCE OF WILL NECESSARY (BAR QUESTIONS: 1990, 1992, 1999, 2005, 2006, 2007, 2010, 2041) 1.01 EXPLAIN PROBATE OR ALLOWANCE OF WILLS. Its the act of proving in court a document, court ent purporting to be the last will and testament of a certain deceased person for the purpose of its official recognition, registration and carrying out its provision in so far as they are in accordance with law. (Black's Law Dictionary) 1.02 IS ALLOWANCE OF A WILL NECESSARY? ene slawonce of a will is necessary. Section 1 of Rule 75 is, explicit, “No will shall pass either real or personal estate unle: proved and allowed in the proper court.” eunesis 1.03 IS THE PROBATE OF A WILL MANDATORY? Yes. The probate of a will is mandatory. (Baluyot v. Panio, ‘No. L-42088, 71 SCRA 86) aaa 1.04 DOES A WILL HAVE FORCE AND EFFECT EVE! NOT PROBATED? eek No. Until admitted ta probate, a will has no effect and no right os claimed thereunder. (Pascual v. Court of Appeals, 409 SCRA 1.05 BAR Q. [2007] a xxx b. ‘The heirs of H agree among themselves that i mon; ives that th will honor the division of I's estate as indicated in her Last Will and Testament. To avoid the expense of going to court in a Petition for Probate of the Will, can they instead execute an extrajudicial settlement agreement among themselves? 2p gxtrajudicia es it among themselves? 390 SPRCIAL PROCEEDINGS SUGGESTED ANSWER: ‘tis submitted that the heirs cannot extrajudicially enter into any settlement without the will being probated. The law expressly provides that no will hall pass either real or personal property unless itis proved and allowed in court. The will must first be probated before parties may enter into any extrajudicial agreement. x 1.06 BAR Q, [2006] Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang Village. Muntinlupa City, of sound land disposing mind, executed a last will and testament in English, a language spoken and written by him proficiently. He disposed of his estate consisting of a parcel of land in Makati City and cash deposit at the City Bank in the sum of P300 million. He bequeathed P50 million each to his 3 sons and P150 million to Susan, his favorite daughter-in-law. He named his best friend, Cancio Vidal, as executor of the will without bond. 1 xxx 2 xxx Bo xxx 4, Canthewidow andherchildrensettleextrajudicially among themselves the estate of the deceased? SUGGESTED ANSWER: No. The widow and her children cannot settle extrajudicially ‘among themselves the estate of the deceased without the will being probated. Section 1 of Rule 75 of the Rules of Court expressly provides that, “No will shall pass either real or personal estate unless it is proved and allowed in the proper court.” 5. Can the widow and her children initiate a separate tition for partition of the estate pending the probate of the .st will and testament by the court? SUGGESTED ANSWER: Pending the probate ofthe last will, the widow and her children cannot initiate a separate petition for partition of the estate. The Rule provides that the will must first be probated before the property may be settied or partitioned. RULE 75 a Production of Wall Allowance of Will Necessary 1.07 BAR Q. [2005] After Lulu’s death, her heirs htought her last will to lawyer to obtain their respective shares in the estate. The law- yer prepared a deed of partition distributing Lulu’s estate in ‘accordance with the terms of her will. Is the act of the lawyer correct? Why? SUGGESTED ANSWER: ft is eubmitted that the act of the lawyer is not correct. ‘The Rules of Court is clear on the matter. No will shall pass either real or personal estate unless it is proved and allowed in the proper court. 1.08 BAR Q. [1992] The last will and testament of te deceased was presented in the proceeding tosettle his estate and in due course hearing was set for the probate of the will, Before evidence thereon could be presented, the legal heirs of the deceased, his widow and his two surviving daughters, Gled a manifestation that the probate of the will would no longer be necessary since they had already agreed to divide the net estate differently in accordance with a project of partition attached to their manifestation. Consequently, they moved that the project of partition be approved and forthwith implemented without probate of the decedent's will. : Should the court grant the heirs’ motion and accordingly approve their project of partition without probate of the will? Explain. SUGGESTED ANSWER: No, the court cannot approve a project of partition without the probate of the will because under the Rules of Court, “No will shall pass either real or personal property unless it is proved and allowed in the proper court.” 1,09 IS A DECREE OF PROBATE CONCLUSIVE AS TO ITS DUE EXECUTION? ‘Yes, such allowance of the will shall be conclusive as to its due execution as stated in Section 1 of Rule 75.2 ‘SPECIAL PROCEEDINGS ‘A decree of probate is conclusive with respect to the due exeeu- tion of the will and it cannot be impugned on any grounds except that of fraud, in any separate or independent action or proceeding, (Manahan v. Manahan, 58 Phil, 448, 45) 1.10 DUE EXECUTION CONNOTES THAT THE WILL WAS EXECUTED IN AGCORDANCE WITH THE FORMALI- ‘TIES PRESCRIBED BY LAW. CITE THESE LAWS. Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind, freely executed the will in ‘accordance with the formalities prescribed by law. These formalities ‘are enshrined in Articles 805 and 806 of the New Civil Code, fo wit: Article 805, Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his pres. cence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testa- tor and of one another. ‘The testator or the person requested by him to write his name and the instrumental witnesses ofthe will, shall also sign, as aforesaid, each and every page thereof, except the last, on the Jeft margin, and all the pages shall be numbered correlatively in Jetters placed on the upper part of each page. ‘The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Article 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. (M. Mateo, Nenita A. Pacheco, Virgilio Regala, Jr., and Rafael Titeo v. Lorenzo ‘Laxa, G.R, No. 174489, April 11, 2012) RULE 75 4 Production of Wil Allowance of Will Necessary 1.11 GIVE THE CONCEPT AND EXTENT OF “DUE EXECU- TION” Due execution covers the following: 1, ‘The will was executed in aceordance with the strict forma- lities of the law; 2, The testator was of sound and disposing mind at the time of the execution of the will; ” 3. Consent is not vitiated by any duress, fear or threats; 4. ‘The will was not procured by any undue influence from the beneficiary or by some other person for his benefit; and 5. ‘The signature of the testator is genuine, 1.12 MAY A PROBATE COURT PASS UPON THE INTRINSIC VALIDITY OF A WILL? No, in a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will, ie. whether the testator, being of sound mind, frecly executed the will in accor- dance with the formalities prescribed by law. As a rule, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. (Pastor, Jr. v. CA, 122 SCRA 185) 1.18 THE RULE PROVIDES THAT “SUCH ALLOWANCE OF THE WILL SHALL BE CONCLUSIVE AS TO ITS DUE EXECUTION.” EXPLAIN ITS MEANING. ‘The allowance of the will precludes any interested person from questioning the due execution of the will but not the intrinsic validity ofits testamentary provisions. Matters relating to intrinsic validity of a will are governed by substantive law on inheritance and partition (Estate of Johnson, 39 Phil. 156) 1.14 BAR Q. [2010] Czarina died single. She left all her properties by will to her friend Duqueza. In the will, Czarina stated that she did not recognize Marco as an adopted son because of his disres- pectful conduct towards her. Duqueza soon instituted an action for probate of Czari- na’s will. Marco, on the other hand, instituted intestate pro- ceedings. Both actions were consolidated before the RTC of4 ‘SPECIAL PROCEEDINGS Pasig. On motion of Marco, Duqueza’s petition was ordered dismissed on the ground that the will is void for depriving him of his legitime. Argue for Duqueza. SUGGESTED ANSWER: The dismissal of Duqueza’s action for probate is not valid. The probate court may only pags upon the extrinsic validity of the will, i.e,, whether the testator, betng of sound mind, freely executed the will in accordance with the formalities prescribed by law. The issue as to whether the will is void because an adopted child eannot be deprived of his legitime involves intrinsic validity of the will Itis « settled rule that probate court is a court of limited jurisdiction. As such, it may only determine and rule upon iscues that relate to settlement of the estate of deceased person such as the administration, liquidation and distribution of the estate, Matters relating to intrinsic validity of a will are governed by substantive law on inheritance and partition. 1.15 BAR Q. [1999] a) xxx b) A's will was allowed by the Court, No appeal was taken from its allowance. Thereafter, Y, who was interested in the estate of A, discovered that the will was not genuine because A’s signature was forged by X. A criminal action for forgery was instituted against X. May the due execution of the Will be validly questioned in such criminal action? SUGGESTED ANSWE) It is submitted that the due execution of the will cannot be validly questioned in such criminal action since allowance of the will from which no appeal was taken is conclusive as to its due execution. Due execution includes a finding that the will is genuine and not a forgery. Thus, the due execution of the will cannot again be questioned in subsequent proceeding, not even in a criminal action for forgery of the will, 116 IS THE DOCTRINE OF ESTOPPEL APPLICABLE IN PROBATE PROCEEDINGS? No, the doctrine of estoppel is not applicable in probate pro: ceedings since the presentation and the probate of a will are required by public policy. (Fernandez, et al. v. Dimagiba, L-23638, October 12, 1967) RULE 15 4 Production of Will Allowance of Will Necessary 1.17 WHAT ARE THE ISSUES THAT MAY BE BROUGHT BEFORE THE PROBATE COURT? ‘The determination of whether a property should be included in the inventory is within the jurisdiction of a probate court. (Munsayac- De Villa v. Court of Appeals, 414 SCRA 436) It may also include the determination of who are the heirs of the decedent; the validity of a waiver of hereditary rights; the status of each heir and all other matters incidental to the administration, settlement and distribution of the estate. 1.18 BAR @. [2011] Apart from the case for the settlement of her parents? estate, Betty filed an action against her sister, Sigma, for seconveyance of title to a piece of land. Betty claimed that Sigma forged the signatures of their late parents to make it appear that they sold the land to her when they did not, thus prejudicing Betty’s legitime. Sigma moved to dismiss the action on the ground that the dispute should be resolved in the estate proceedings. Is Sigma correct? (A) Yes. questions of collation should be re proceedings, not in a separate civil ease (B) No, since questions of ownership of property cannot be resolved in the estate proceedings. (©) Yes, in the sense that Betty needs to wait until the estate case has been terminated. (D) No, the filing of the separate action is proper; but the estate proceeding must be suspended meantime. 1.19 IS A PROBATE COURT A COURT OF LIMITED JURIS- DICTION? ‘Yes. A probate court is a court of limited jurisdiction. As such, it may only determine and rule upon issues that relate to settlement of, the estate of deceased person such as the administration, liquidation and distribution of the estate. A probate court is a tribunal of limited jurisdiction. It acts on ‘matters pertaining to the estate but never on the rights to property arising from contract. (Pio Barreto Realty Dev., Inc. v. CA, L-62431, 131 SORA 606)6 SPECIAL PROCEEDINGS ‘When questions arise as to ownership of property alleged to be part of the estate of a deceased person, but claimed by some other person to be his property, not by virtue of any right of inheritance from the deceased and his estate, such questions cannot be determined in the courts of administration proceedings. The trial court, acting fs probate court, has no jurisdiction to adjudicate such contentions, which must be submitted,to the trial court in the exercise of its general jurisdiction. (Ongsimgeo v. Tan, 97 Phil. 330, 884-385) 2.01 THE GENERAL RULE PROVIDES THAT A PROBATE COURT CANNOT DECIDE A QUESTION OF TITLE OF OWNERSHIP. ARE THERE EXCEPTIONS TO THE RULE? ‘The probate court may pass upon the question of title to property on the following cases: (a) The interested parties who are all heirs of the deceased consent thereto and the interests of third parties are not prejudiced; () Ina provisional manner, to determine whether said pro- perty should be included in or excluded from the inventory, without prejudice to the final determination of title in a separate action. In Valera v, Inserto, 149 SCRA 533 (1987), the Supreme Court declared that where the determination by the probate court was merely provisional, it cannot be the subject of execution, especially so, where the Torrens Title to the property is not in the decedent's name but in others. Likewise in Coca, et al. v. Pangilinan, et al., L-27082, January 81, 1978 and in Munsayac-De Villa v. Court of Appeals, 414 SCRA 436, the Supreme Court ruled that although, generally, a probate court may not decide a question of title or ownership, yet if the interested parties are all heirs, or the question is one of collation or advancement, or the parties consont to the assumption of jurisdiction by the probate court and the rights of third persons are not impaired, the probate court is competent to decide the question of ownership, 2.02 BAR Q. [2011] In proceedings for the settlement of the estate of deceased persons, the court in which the action is pending may properly (A) pase upon question of ownership of a real property in the name of the deceased claimed by a stranger. RULE 75 a Production of Will Allowance of Will Necesssry (B) pass upon with the consent of all the heirs the issue of ownership of estate asset, contested by an heir if no third person is affected. (© rule on aclaim by one of the heirs that an estate asset was held in trust for him by the deceased, (D) rescind a contract of lease entered into by the deceased before death on the ground of contractual breach by the lessee. 2.03 DISCUSS THE PRINCIPLE OF EXCLUSIONARY RULE IN PROBATE PROCEEDINGS. The rule provides that when a probate court first takes cogni- zance and jurisdiction over the settlement of the estate of a deceased person, it shall continue to exercise jurisdiction over the same to the exclusion of other courts. Hence, upon assumption, it cannot there- after be divested of such jurisdiction by the subsequent acts of the parties as when they enter into extrajudicial partition or by filing {nother petition for settlement ina proper cour of concurrent juris tion. 2.04 BAR Q. [1990] Sammy Magdalo, executor of the estate of the deceased Rolando Aceron, submitted an inventory which includes a ten- hectare lot occupied by Carlos Domingo. Domingo opposed inclusion in the inventory of the property claiming ownership thereof. The probate court directed the executor and Domingo to present evidence of ownership. Domingo refused to par- ticipate in the proceedings, asserting lack of jurisdiction on the part of the probate court. The probate court nonetheless proceeded with the hearing and rendered judgment declaring, the deceased to be the owner of the questioned property. The probate court directed Domingo to vacate the premises. Is the judgment correct? Explain your answer. SUGGESTED ANSWER: ‘The judgment is incorrect since the court has no jurisdiction to adjudicate title to the properties claimed to be part of the estate of the deceased and by third parties. However, it may make a provisional determination for the purpose of including the same in the inventory of the estate48 ‘SPECIAL PROCEEDINGS 2.05 IF A NOTARIAL WILL IS FOUND 70 BE DEFECTIVE, WILL ITS PROBATE BE DENIED? Yes, a will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is, fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is Sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection. ‘There is a distinct and consequential reason the Civil Code pro: vides a comprehensive catalog of imperatives for the proper execution, of a notarial will, Full and faithful compliance with all the detailed requisites under Article 805 of the Code leave little room for doubt 1s to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills — that they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opene itself to nagging questions as to its legitimacy. (Felix Azuela v. CA, G.R. No. 122880, April 12, 2006) 3.01 WHAT IS THE DUTY OF A CUSTODIAN OF A WILL UPON KNOWLEDGE OF THE DEATH OF THE TESTATOR? Section 2 of Rule 75 provides that the person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will tothe court having jurisdiction, or to the executor named in the will. 3.02 BAR Q. [2006] Sergio Punzalan, Filipino, 50 years old, married, and resi- ding at Ayala Alabang Village, Muntinlupa City, of sound and disposing mind, executed a last will and testament in English, a language spoken and written by him proficiently. He disposed of his estate consisting of a parcel of land in Makati City and cash deposit at the City Bank in the sum of P300 million. He bequeathed P50 million each to his three sons and P150 million to Susan, his favorite daughter-in-law. He named his best friend, Cancio Vidal, as executor of the will without bond. Loxxx 2. Supposing the original copy of the last will and tes- tament was lost, can Cancio compel Susan to produce a copy in her possession to be submitted to the probate court? RULE 75 9 Production of WEL Allowance of Will Neceseaty Boxxx SUGGESTED ANSWER: Yes. Section 2, Rule 78 of the Rules of Court expressly provides that the person who has custody of the will shall deliver the same to the court having jurisdiction. Considering the fact that Susan has a copy of the will in her possession, she, therefore, can be compelled to submit the same to the court. 4.01 WHAT IS THE DUTY OF AN EXECUTOR UPON KNOW- LEDGE OF THE DEATH OF THE TESTATOR? ‘The executor must present the will to the court and must accept or refuse the trust. Section 3 of Rule 75 expressly states that a person named as, executor in a will shall, within 20 days after he knows of the death of the testator, or within 20 days after he knows that he is named executor if he obtained such knowledge after the death of the testa- tor, present such will to the court having jurisdiction, unless the will has reached the court in any other manner, and shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept it. 4.02 BAR Q. [2006] Same facts as that of 2.02 1 xxx 2 xxx Boxxx 4 xxx 5. Is Cancio Vidal, after learning of Sergio’s death, obliged to file with the proper court a petition for probate of the latter's will and testament? SUGGESTED ANSWER: Yes. Section 3, Rule 75 of the Rules of Court is explicit. A person named as executor in a will shall, within 20 days after he knows of50 ‘SPECIAL PROCEEDINGS the death of the testator, or within 20 days after he knows that he is named executor if he obtained such knowledge after the death of the testator, present such will to the court having jurisdiction, Consider- ing the fact that Cancio Vidal is named as executor in the will, he is, therefore, obliged to file a petition for probate of the will 5.01 MAY MANDAMUS IE TO COMPEL THE PRODUCTION OF THE ORIGINAL WILL? No, as held in the case of Uy Kiao Eng v. Nixon Lee, G.R. No. 1176831, January 6, 2010, the Supreme Court, without unnecessarily ascertaining whether the obligation involved here ~ the production of ‘the original holographic will —is in the nature of a public or a private duty, rules that the remedy of mandamus cannot be availed of by the respondent because there lies another plain, speedy and adequate remedy in the ordinary course of law. It should be noted in this case that the respondent has a photocopy of the will and that he seeks the production of the original for purposes of probate. The Rules of Court, however, does not prevent him from ins- tituting probate proceedings for the allowance of the will whether the same is in his possession or not. Section 1 of Rule 76 relevantly provides: See. 1. Who may petition for the allowance of will. — Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. ‘An adequate remedy is further provided in Sections 2 to 5 of Rule 75 for the production of the original holographic will. Thus ~ Sec. 2. Custodian of will to deliver. — ‘The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the will. See. 8. Executor to present will and accept or refuse trust —A person named as executor in a will shall, within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after he knows that he is named executor if he obtained such knowledge after the death of the testator, present RULE TS 8 Production of Will Allowance of Wil Necessary such will to the court having jurisdiction, unless the will has reached the court in any other manner, and shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept it. See. 4. Custodian and executor subject to fine for neglect. —A person who neglects any of the duties required in the two last preceding sections without excuse satisfactory to the court shal] be fined not exceeding two thousand pesos. Soc. 5. Person retaining will may be committed. — A per- son having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be com mitted to prison and there kept until he delivers the will, ‘There being a plain, speedy and adequate remedy in the ordi- nary course of law for the production of the subject will, the remedy of mandamus cannot be availed of, 6.01 CASE PACIOLES, JR. v. CHUATOCO-CHING G.R. No. 127920, August 9, 2005 ISSUE: May a trial court, acting as an intestate court, hear and pass upon questions of ownership involving properties claimed to be part of the decedent's estate? SUPREME COURT'S RULING: The general rule is that the juris. diction of the trial court either as an intestate or a probate court, relates only to matters having to do with the settlement of the estate and probate of will of deceased persons but does not extend to the determination of questions of ownership that arise during the proceedings. (Sanchez v. Court of Appeals, G.R. No. 108947, September 29, 1997) The patent rationale for this rule is that such court exercises special and limited jurisdiction. (Heirs of Oscar R. Reyes v. Reyes, G.R. No. 139587, November 22, 2000) A well-recognized deviation to the rule is the principle that an intestate or a probate court may hear and pass upon questions of ownership when its purpose is to determine whether or not a pro- perty should be included in the inventory, In such a situation, the adjudication is merely incidental and provisional.se ‘SPECIAL PROCEEDINGS FORM: PETITION FOR THE PROBATE OF A WILL Republic of the Philippin National Capital Judicial Region Regional Trial Court of Manila Branch __ Petition for the Probate of the last will and testantunt and settlement of the estate of the Inte H. 4J.0. in his capacity as the named Executor in the last will and testament of the late H. Petitioner, Spee. Pro. Case No. PETITION COMES NOW, the Petitioner in his capacity as the named executor in the last will and testament of the deceased H before this Honorable Court, most respectfully avers the following: 1. The testator H (hereinafter referred to as the “Testator”), a Filipino, of legal age, passed away last June 10, 2009 at the Medical City Hospital, in Pasig City, Philippines. Attached herewith and made an inte ral part of this pleading is a copy of the testator's Certificate of Death as Annex “A.” 2 The testator, at the time of her death, was a resident of 3. When Ms. H passed away, she was unmarried and had no children of her own, Both her parents had long passed away prior to her death. She is survived by the following persons as her next of kin and heirs. Her siblings: a. Rmarried to L, parents of Jos, and M with postal address at b. Dr. married to Dra., parents of Mi, Er, Vi, and Be with postal adaress at ei © Rimarried to C. However soon after the demise of the testator E also passed away. He left his children namely: R, S and T with postal ‘address at 4, ‘The testator left « last will and testament executed on February 14, 2008. It is under the care and custody of Attorney V for safekeeping. RULES 88 Production of Will Allowance of Will Necessary ‘As soon as practicable and when necessary, the executor will cause the production of original of the will before the Honorable Court. Attached herewith and made an integral part of this pleading is a {faithful copy of the last will and testament of Has Annex “B.” 5. That the petitioner, as executor named in said will, consents to act as such, 6. ‘The testator left a real property-in Manila and the following expenses: Assets House and Lot in Manila P2,600,000.00 Less: Bad debts 500,000.00 (600,000.00) Hospital Expense 1P150,000.00 150,000.00) Net Estate 71,850.00 1ST CAUSE OF ACTION: PROBATE OF THE WILL 7. Petitioner reepectfully seeks the probate of the aforesaid will in accordance with the requisites of the laws of the Philippines. 2ND CAUSE OF ACTION: PARTITION OF THE ESTATE IN ACCOR- DANCE WITH THE INSTRUCTIONS OF THE WILL 8 If the Willis allowed in this probate, the properties of the late H be distributed in accordance with the provisions and instructions in the Will. PRAYER WHEREFORE, premises considered, it is most respectfully prayed that: a, A place and time be set for proving the last will and testa- ment of the late H. b. That due notice be provided in accordance with the Rules of Court ©. That after proper hearing, said will and testament be admitted to probate and letters testamentary be issued to herein petitioner. 4. Inthe ovent that the willis allowed, the estate be distributed in accordance with the said Will Other remedies just and equitable and necessary in order to achieve the ends of justice under the premises are likewise prayed for. Respectfully submitted. Quezon City for City of Manila, December 10, 2010.54 SPECIAL PROCEEDINGS JUAN DELA CRUZ Roll No. 40123 PTR No. 8992143 1/14/2015, SP No, 690130 1/8/2015 MOLE Compliance TV-0008269-02/28/10 Tel. No. (02) 416-8900 Cell Phone No, 0920 1284567 E-Mail Add¥ess:jhimfes2@yahoo.com No, 222 Wheels Executive Suite Wheels Bldg., B. Rodrigues Sr. Avenue, Quezon City, 1102 VERIFICATION AND CERTIFICATE OF NON-FORUM SHOPPING 1, J.0,, Filipino, of legal age, with residence address at after having been sworn to in accordance with law hereby states: 1. Lam the petitioner in the above-entitled ease. 2, Teaused the preparation of the aforementioned petition, 3. Thereby certify that I have not commenced any other, action or proceeding involving the same issues as are now raised in the petition, before the Supreme Court, Court of Appeals or any other court, tribunal or agency. To the best of my knowledge, no such action or proceeding is pending before the Supreme Court, Court of Appeals, or any other court, tribunal or agency. Should I learn that a similar action or proceeding has, been filed or is pending before the Supreme Court, Court of Appeals, or any other court, tribunal or agency, I shall personally notify this Honorable Court of such fact within five (6) days from said notice Affant SUBSCRIBED AND SWORN to before me, this__day of. affiant exhibiting to me his LTO Driver's License Identifieation Card wi no. issued at on NOTARY PUBLIC DOC. NO. PAGE NO. BOOK NO. SERIES OF i i RULE 76 ALLOWANCE OR DISALLOWANCE OF WILL (BAR QUESTIONS: 1999, 2002, 2011, 2012) 1.01 WHO MAY PETITION FOR THE ALLOWANCE OF WILL? Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed, The testator himself may, during his lifetime, petition the court, for the allowance of his will. 1.02 WHO IS A “PERSON INTERESTED IN THE ESTATE”. As a rule, in order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it either as executor or asa claimant of the estate. An interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor. (Sumilang v. Ramagosa, 21 SCRA 1369 1967) 1.03 DEFINE PROBATE OF A WILL. It is an act of proving in court a document purporting to be the Jast will and testament of a deceased person in order that it may be officially recognized, registered and its provisions carried insofar as they are in accordance with law. 1.04 IS PROBATE OF A WILLSUBJECT TO PRESCRIPTION? No, The petition for probate of the will is not subject to the statute of limitations and does not prescribe, as such petition may be filed “at any time” and is required by public policy. (Guevara v. Guevara, et al., 98 Phil. 249)86 ‘SPECIAL PROCEEDINGS 1.05 WHAT MUST THE PETITION FOR THE ALLOWANCE OF A WILL SHOW? Our rule requires merely that the petition for the allowance of a will must show, so far as known to the petitioner: 8) the jurisdictional facts; b) the names, ageg and residences of the heirs, legatees and devisees of the testator or Wecedent; ©) the probable value and character of the property of the estate; 4) the name of the person for whom letters are prayed; and ©) if the will has not been delivered to the court, the name of the person having custody of it. (In the Matter of the Petition to Approve the Will of Ruperta Palaganas, G.R. No, 169144, January 26, 2011) 1.06 DO THE RULES REQUIRE PROOF THAT THE FOR- EIGN WILL HAS BEEN PROBATED IN THE FOREIGN COUNTRY? No, the rules do not require proof that the foreign will has already been allowed and probated in the country of its exeeution. (In the matter of the petition to approve the will of Ruperta Palaganas, G.R, No. 169144, January 26, 2011) 1.07 BAR Q. [2012] ‘What are the jurisdictional facts that must be alleged in a petition for probate of a will? SUGGESTED ANSWER: ‘The jurisdictional facts in probate proceedings are the death of the decedent, his residence at the time of his death in the province of where the probate court is sitting, or if he is an inhabitant of a foreign country, his leaving his estate in such province. (Cuenco v. CA, 53 SCRA 360) 1.08 WHAT IS THE NATURE OF PROBATE PROCEEDINGS? Probate proceedings is in rem. The notice by publication as « prerequisite to the allowance of a will, is a constructive notice to the whole world, and when probate is granted the judgment is binding RULES 57 Allowance or Disallowance of Wil ‘upon everybody, even against the State. The probate of a will of the court having jurisdiction thereof is conclusive as to its due execution and validity. (Cuenco v, CA, 53 SCRA 360) 1.09 HOW MAY A LOST WILL BE PROVED? ‘The Rule declares that no will shall be proved as a lost or destroyed will uniess the execution and validity of the same be established, and 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, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is 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 as other wills are filed and recorded. 1.10 WHAT KIND OF PROOF DOES THE EXISTENCE OF ‘THE WILL ESTABLISH? ‘The very existence of [the Will] isin itself prima facie proof that the supposed [testatrix] has willed that [her] estate be distributed in the manner therein provided, and it is incumbent upon the State that, if legelly tenable, such desire be given full effect independent of the attitude of the parties affected thereby. (In the matter of the petition to approve the will of Ruperta Palaganas, G.R. No. 169144, January 26, 2011) 2.01 BAR Q. [1999] a) What are the requisites in order that a lost or des- troyed will may be allowed? SUGGESTED ANSWER: In order that a lost or destroyed will may be allowed, the follow: ing must be, in a subsequent proceeding, complied with: 1. Execution and validity of the will must be established; 2, ‘The will must have been in existence at the time of the death of the testator, or shown to have been fraudulently or acciden- tally destroyed in the lifetime of the testator without his knowledge; 3. ‘The provisions are clearly and distinetly proved by at least two cxedible witnesses,2.02 BAR Q. [2011] Which of the following is sufficient to disallow a will on the ground of mistake? (A) Anerror in the description of the land devised in the will. (B) The inclusion for distribution among the heirs of properties not belonging tg the testator. (©) Thetestatorintended a donation inter vivosbutunwittingly executed a will (D) Anerror in the name of the person nominated as executor. 2.03 BAR Q. [2002] May an order denying the probate of a will still be over- turned after the period to appeal therefrom has lapsed? Why? SUGGESTED ANSWER: ‘Yes, an order denying the probate of a will may be overturned after the period to appeal therefrom has lapsed. A petition for reltef may be filed on the grounds of fraud, accident, mistake or excusable negligence within a period of 60 days after the petitioner learns of the judgment or final order and not more than six months after such judgment or final order was entered Rule 38, Secs. 1 and 3; Soriano v. Asi, 100 Phil. 785 (1957). An aetion for annulment may also be filed on the ground of extrinsic fraud within four years from its discovery, and if based on lack of jurisdiction, before it is barred by laches or estoppel. Rule 47, Sees. 2 and 3) 2.04 WHO ARE ENTITLED TO NOTICE OF TIME AND PLACE OF PROBATE PROCEEDINGS? Section 4 of Rule 76 provides that known heirs, legatees, and devisees of the testator are entitled to notices, It provides: “Sec. 4. Heirs, devisees, legatees, and executors to be notified ‘by mail or personally. — The court shall also cause copies of the notice of the time and place fized for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon. prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he RULE 76 50 Allowance or Disallowance of Will be not be petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing. If the testator asks for the allowance of his own will, notice shalll be sent only to his compulsory heirs.” In the case of Alaban u. CA, G.R. Nb, 156021, September 23, 2006, a perusal of the will instituted by the testator shows that res- pondent was instituted as the sole heir of the decedent. Petitioners, as nephews and nieces of the decedent, are neither compulsory nor testate heirs who are entitled to be notified of the probate proceed: ings under the Rules. Respondent had no legal obligation to mention petitioners in the petition for probate, or to personally notify them of the same, 8.01 CASE ALABAN, et al. vu. COURT OF APPEALS GR. No. 156021, September 23, 2005 FACTS: Respondent Francisco Provide filed a petition for the probate of the Last Will and Testament of the late Soledad Provido Eleven- cionado. Respondent alleged that he was the heir of the decedent and the executor of her will. The RTC in P.D. Monfort North, Dumangas, oilo allowed the probate of the will of the decedent and directed the issuance of letters testamentary to respondent. Petitioners filed a motion for the reopening of the probate proceedings. Likewise, they filed an opposition to the allowance of the will of the decedent, as well as the issuance of letters testamentary to respondent, claiming that they are the intestate heirs of the decedent. Petitioners claimed that the RTC did not acquire jurisdiction over the petition due to non-payment of the correct docket fees, defective publication, and lack of notice to the other heirs, RIC issued an Order denying petitioners’ motion for being unmeritorious holding that petitioners were deemed notified of the hearing by publication and that the deficiency in the payment of docket fees is not a ground for the outright dismissal of the petition. It merely required respondent to pay the deficiency. ISSUE: Whether or not petitioners have become parties to the probate proceedings by virtue of a notice by publication.6 SPECIAL PROCEEDINGS SUPREME COURT'S RULING: It has been held that a proceeding for the probate of a willis one in rem, such that with the corresponding publication of the petition the court’s jurisdiction extends to all persons interested in said will or in the settlement of the estate of the decedent. Publication is notice to the whole world that the proceeding has for its object to bar indefimiely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it. Thus, even though petitioners were not mentioned in the petition for probate, they eventually became parties thereto as a consequence of the publication of the notice of hearing. Assuming arguendo that petitioners are entitled to be 80 noti fied, the purported infirmity is cured by the publication of the notice. After all, personal notice upon the heirs is a matter of procedural convenience and not a jurisdictional requisite, RULE 77 ALLOWANCE OF WILL PROVED OUTSIDE OF THE PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER (BAR QUESTIONS: 2011, 2014) 1.01 A WILL WAS PROBATED IN A FOREIGN COUNTRY. MUST IT BE RE-PROBATED IN THE PHILIPPINES? Yes, Section 1 of Rule 77 provides that a will proved and allowed in a foreign country must be re-probated in the Philippines. If the decedent owns properties in different countries, separate proceedings must be had to cover the same. 1.02 WHAT MUST THE PROPONENT PROVE DURING A REPROBATE PROCEEDING? At the re-probate proceedings in the Philippines, the proponent must prave (a) that the testator was domiciled in the foreign country, (b) that the will has been admitted to probate in such country, (°) that the foreign court was, under the laws of said foreign country, @ probate court with jurisdiction over the proceedings, (d) the law on probate procedure in said foreign country and proof of compliance therewith, and (e) the legal requirements in said foreign country for the valid execution of the will. (Fluemer v. Hix, 54 Phil. 610) 2.01 WHAT ARE THE EFFECTS OF ALLOWANCE OF A WILL UNDER THIS RULE? ‘The effects are as follows: 1. The will shall be treated as if originally proved and allowed in Philippine courts; 2. Letters testamentary oradministration with a will annexed shall extend to all estates of 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. 616 SPECIAL PROCEEDINGS 2,02 MAY A WILL EXECUTED BY FOREIGNERS ABROAD BE PROBATED IN THE PHILIPPINES EVEN IF NOT YET PROVED AND ALLOWED IN THE COUNTRY OF EXECUTION? Yes, our laws do not prohibit the probate of wills executed by foreigners abroad although the same have not as yet been probated and allowed in the countrigs of their execution. A foreign will can be given legal effects in our jurisdiction. Article 816 of the Civil Code states that the will of an alien who is abroad produces effect in the Philippines if made in accordance with the formalities prescribed by the law of the place where he resides, or according to the formalities observed in his country. Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the decedent is an inhabitant of a foreign country, the RTC of the province where he has an estate may take cognizance of the settlement of such estate. Sections 1 and 2 of Rule 76 further state that the executor, devisee, or legatee named in the will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. ‘The rules require merely that the petition for the allowance of a will must show, so far as known to the petitioner: (a) the jurisdictional facts; (b) the names, ages, and residences of the heirs, legatees, and devises of the testator or decedent; (©) the probable value and character of the property of the estate; (d) the name of the person for whom letters are prayed; and (e) if the will has not been delivered to the court, the name of the person having custody to it, Jurisdictional facts refar to the fact of death of the decedent, his residence at the time of his death in the province where the probate court is sitting, or if he is an inhabitant of a foreign country, the estate he left in such province, The rules do not require proof that the foreign will has already been allowed and probated in the country of its execution. (In Re: In the Matter of the Petition to Approve the Will of Ruperta Palaganas v. Palaganas, G.R. No. 169144, January 26, 2011) 2.08 BAR Q. [2014] Johnny, a naturalized citizen of the United States of America (USA) but formerly a Filipino citizen, executed a notarial will in accordance with the laws of the State of Cali- fornia, USA. Johnny, at the time of his death, was survived RULBT? 63 Allowance of Will Proved Outside ofthe Philippines ‘and Administration of Bstate Phereunder by his niece Anastacia, an American citizen residing at the condominium unit of Johnny located at Fort Bonifacio, Taguig City; a younger brother, Bartolome, who manages Johnny's fish pond in Lingayen, Pangasinan; and a younger sister, Christina, who manages Johnny's rental condominium units in Makati City. Johnny's entire estate which he inherited from his parents is valued at #200 million. Johnny appointed Anastacia as executrix of his will. (A) Can Johnny’s notarial will be probated before the proper court in the Philippines? (B) xxx SUGGESTED ANSWER: Yes, Johnny's notarial will can be probated before the proper court in the Philippines. It is a settled jurisprudential doctrine that our laws do not prohibit the probate of wills executed by foreigners abroad although the same have not yet been probated and allowed in the countries of their execution. Article 816 of the Civil Code expressly provides that the will of an alien who is abroad produces effect in the Philippines if made in accordance with the formalities prescribed by the law of the place where he resides or according to the formalities observed in his country. In the case at bar, Johnny's notarial will was executed in accordance with the laws of California, U.S.A. Hence, his will may be probated in the Philippines. 2.04 BAR Q. [2011] Pedrillo, a Fil-Am permanent resident of Los Angeles, California at the time of his death, bequeathed to Winston & sum of money to purchase an annuity. Upon Pedrillo’s demise, his will was duly probated in Los Angeles and the specified sum in the will was in fact used to purchase an annuity with XYZ of Hong Kong so that Winston would receive the equivalent of US$1,000 per month for the next 15 years. Wanting to receive the principal amount of the annuity, Winston files for the probate of Pedrillo’s will in Makati RTC. As prayed for, the court names Winston as administrator of the estate.o ‘SPECIAL PROCEEDINGS Winston now files in the Makati RTC a motion to compel XYZ to account for all sums in its possession forming part of Pedrillo’s estate. Rule on the motion. SUGGESTED ANSWER: ‘The motion must be denied. When a will is allowed, the letters of administration grantedby the court shall extend to all the estate of the testator in the Philippines. Rule 77, Sec. 4) Hence, RTC of ‘Makati has no jurisdiction over XYZ of Hongkong. 2.05 CAN OUR COURTS TAKE JUDICIAL NOTICE OF FOREIGN LAWS? No, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Hence, executors or administrators of the decedent's estate are duty-bound to introduce in evidence the pertinent law of the foreign court which admitted to probate the will of the decedent. (Ancheta v. Dalaygon, GR. No, 139868, June 8, 2006) 2.06 WHAT IS THE DUTY OF THE PETITIONER IN A REPRO- BATE PROCEEDINGS? While foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notie of them; how: ever, petitioner, as ancillary administrator of Audrey's estate, was duty-bound to introduce the pertinent law of the State of Maryland. (Ancheta v. Guersey-Dalaygon, G.R. No. 139868, June 8, 2006) RULE 78 LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED (BAR QUESTIONS: 1998, 2006, 2011, 2014) 1.01 WHO MAY ADMINISTER THE ESTATE OF A DECEASED PERSON? ‘The following may administer the estate: 1) executor; 2) admin- istrator. 1.02 WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS? Under the Rule, no person is competent to serve as executor or administrator who: (@) Isa minor; (b) Is not a resident of the Philippines; and (©) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of eanvietion of an offense involving moral turpitude, 1.03 BAR Q. [2014] Johnny, a naturalized citizen of the United States of America (USA) but formerly a Filipino citizen, executed a notarial will in accordance with the laws of the State of Cali- fornia, USA. Johnny, at the time of his death, was survived by his niece Anastacia, an American citizen residing at the con- dominium unit of Johnny located at Fort Bonifacio, Taguig City; a younger brother, Bartolome, who manages Johnny's fish pond in Lingayen, Pangasinan; and a younger sister, Christina, who manages Johnny’s rental condominium units in Makati City. Johnny’s entire estate which he inherited from his parents is valued at P200 million. Johnny appointed Anastacia as executrix of his will. 6568 ‘SPECIAL PROCEEDINGS (A) xxx (B) Is Anastacia qualified to be the executrix of Johnny's notarial will? SUGGESTED ANSWER: Anastacia is qualified to be the executrix of Johnny's notarial < Although she is an American citizen, she, however, resides in the Philippines, more particularly in Fort Bonifacio, Taguig City. ‘There is no law that prohibits an alien from becoming an executor oF administrator for as long as the person is a resident of the Philippines. ‘Moreover, she does not possess the other grounds for disqualification as enumerated under Rule 78. Hence, the appointment of Anastacia as executrix of Johnny's will is valid 1.04 DIFFERENTIATE AN EXECUTOR AND AN ADMINIS- ‘TRATOR. An executor is a person named expressly by the deceased per- son in his will to administer, settle and liquidate his estate, while an administrator is a person appointed by the intestate court to admin- ister the estate of a deceased person who: a) dies without leaving a will; b) or did not name any executnr even if there was a will; ¢) or if there be one named, he is incompetent, refuses the trust or fails to give a bond, or that the will subsequently, is declared null and void. 2.01 MAY THE EXECUTOR OF AN EXECUTOR BE ALLOWED TO ADMINISTER THE ESTATE? No. Under Section 2, the executor of an executor shall not, as such, administer the estate of the first testator, 2,02 MAY A MARRIED WOMAN SERVE AS EXECUTRIX OR ADMINISTRATRIX? ‘Yes, she may serve as provided under Section S hereof, Likewise, {he marriage of a single woman shall not affect her authority so to serve under a previous appointment. 2.03 DEFINE LETTERS TESTAMENTARY. It is an authority issued to an executor named in the will to administer the estate. RULE 75 67 Letters Testamentary and of Administration ‘When and to Whom Iesued 2.04 DEFINE LETTERS OF ADMINISTRATION. It is an authority issued by the court to a competent person to administer the estate of the deceased who died intestate. | 05 WHAT IS THE RULE IF SOME CO-EXECUTORS ARE DISQUALIFIED? Section 5 of Rule 78 provides that ‘when all of the executors named in a will eannot act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them, letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the duties and discharge the trust required by the will Inother words, where some co-executors are disqualified, others who are qualified may thereby act. 3.01 GIVE THE ORDER OF PREFERENCE IN GRANTING LETTERS OF ADMINISTRATION UNDER SECTION 6 IF NO EXECUTOR IS NAMED IN THE WILL OR THE EXECUTOR IS INCOMPETENT, REFUSES THE TRUST, OR FAILS TO GIVE BOND, OR A PERSON DIES INTESTATE? If no executor is named in the wil, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (@) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; () If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for 30 days after the death of the person to apply for administration or to ‘equest that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (©) _Ifthere is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.6s SPECIAL PROCEEDINGS 3,02 WHAT IS THE RATIONALE BEHIND THE RULE ON ‘THE ORDER OF PREFERENCE? ‘Textually, the rule lists a sequence to be observed, an order of preference, in the appointment of an administrator. This order of preference, which categorically seeks out the surviving spouse, the next of kin and the creditors on the appointment of an administrator, has been reinforced in jurisprudence. ‘The paramount consideration in the appointment of an admin- istrator over the estate of a decedent is the prospective administra- tor’s interest in the estate, This is the same consideration which Section 6 of Rule 78 takes into account in establishing the order of preference in the appointment of administrator for the estate. The rationale behind the rule is that those who will reap the benefit of a wise, speedy and economical administration of the estate, or, in the alternative, suffer the consequences of waste, improvidence or mis- management, have the highest interest and most influential motive to administer the estate correctly. In all, given that the rule speaks of an order of preference, the person to be appointed administrator of a decedent's estate must demonstrate not only an interest in the estate, but an interest therein greater than any other candidate. ‘To illustrate, the preference bestowed by law to the surviving spouse in the administration of a decedent's estate presupposes the surviving spouse's interest in the conjugal partnership or community property forming part of the decedent’s estate. Likewise, a surviving spouse is a compaleary heir of a decedent which evinces as much, ifnot more, interest in administering the entire estate af a decedent, aside from her share in the conjugal partnership or absolute community property. (Suntay III v. Cojuangco-Suntay, G.R. No. 183053, October 10, 2012) 3.03 1S THE RULE ON ORDER OF PREFERENCE ABSOLUTE? ‘As a general rule, the court cannot set aside the order of preference. The Rules of Court provides for the order of preference in the appointment of an administrator. (Ventura v. Ventura, 160 SCRA 810) However, the atder of preference is not absolute for it depends on the attendant facts and cireumstances of each case. In the ‘appointment of an administrator, the principal consideration is tue 4 interest in the estate of the one to be appointed RULES 6 Letters Testamentary and of Administration When and to Whom Issued ‘The order of preference does not rule out the appointment of co: administrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates, a situation which obtains here. (In. the Matter of the Intestate Estate of Cristina Aguinaldo-Suntay v. Isabel Cojuangeo- Suntay, G.R. No, 133053, October 10, 2012) 3.04 EXPLAIN THE REASON WHY THE APPOINTMENT OF CO-ADMINISTRATORS HAS BEEN ALLOWED DESPITE THE RULE ON THE ORDER OF PREFERENCE. ‘The paramount consideration in the appointment of an admin- istrator over the estate ofa decedent. the prospective administrator's interest in the estate. It is to this requirement of observation of the order of profer- ence in the appointment of administrator of a decedent's estate that the appointment of co-administrators has been allowed, but as an exception. Reference must be made to Section 6(a) of Rule 78 of the Rules of Court which specifically states that letters of administration may be issued to both the surviving spouse and the next of kin. In addition and impliedly, the Supreme Court in its discussion, pointed to Section 2 of Rule 82 of the Rules of Court whieh say that “x x x when an executor or administrator dies, resigns or is removed, the remaining executor or administrator may administer the trust alone, xx x" (In the Matter of the Intestate Estate of Cristina Aguinaldo. Suntay v. Isabel Cojuangeo-Suntay, G.R. No. 182053, October 10, 2012) 3.05 WHAT OTHER INSTANCES MAY THE COURT SET ASIDE THE ORDER OF PREFERENCE? In case the persons who have the preferential right to be appointed under the Rules are not competent or are unwilling to serve, administration may be granted to such other person as the court may appoint. (Villamor v. Court of Appeals, 162 SCRA 574) 3.06 WHAT IS THE SCOPE OR LIMIT OF ADMINISTRATION? ‘The general rule universally recognized is that administration extends only to the assets of a decedent found within the state or country where it was granted, so that an administrator appointed in ane state or country has no power over the property in another state or country. This is specifically embodied in Section 4, Rule 78 of the Rules of Court. (Leon v- Manufacturers Life Insurance Co., 90 Phil. p 158, 463)