REMREV2 NOTES || BRONDIAL 2014
SPECIAL PROCEEDINGS NOTE: Declaration of absence and death: There is no such thing as declaration of death…it should be absence leading to the declaration of death. These are the only things, which we will be discussing in Special Proceedings (I will state them in the order of importance, procedurally speaing!: ". %.
*. /.
+. 8. 9.
Settlement ement of #states #states$$ states states the meat of of special special procee proceeding dingss &doption$ &doption$ althoug althoughh this is already already studied studied in ci'il law it is important important because of the new rule on adoptio adoption, n, not the laws on adoption ().&. *++%, the Domestic &doption &ct of "- as well as ).&. -/*, the Inter 0ountry &doption 1aw of "+!…not that because that is substanti'e. I am taling of the new rule on adoption which too effect sometime in &ugust %/. I that2s why I thin it2s the second most important thing to discuss here. )ule "* in relation ation to )ule "-, 0hange 0hange of 3ame and 0orrectio 0orrectionn of #ntry..ag #ntry..again, ain, because because of the new law. law. So the possibility of being ased in the 4&) is great. ()ead also ).&. /-! 5uardianship$ practically the same rules of procedure as settlement settlement of estate..only ate..only that that in settlement settlement of estate, the the sub6ect is dead unlie in guardianship, guardianship, the sub6ect is still ali'e. Physically ali'e, but mentally dead or a minor. That is the difference between the two. 7abeas 7abeas 0orpus$ 0orpus$ a peculia peculiarr ind of special special proceedi proceeding ng #scheat Trust Trust (not the the trust trust you buy in ercury ercury,, but relation…trus ation…trustt relation! relation!
&ll the rest, we will not discuss anymore. ;oluntary Dissolution of 0orporations Declaration of &bsence < Death 7ospitali=ation 7ospitali=ation of Insane Persons…(but, I still ad'ise you to read!, e'en the 0onstitution of the >amily 7ome.
repealed by the new rules on adoption, including )escission < 0ustody of 0hildren, these )ules are no longer applied because of the adoption of the 0hild < Couth Belf are 0ode. De%inition o% *Special Proceeding+ nder nder )ule ", Section Section *, a special proceeding is a remedy by which a person seeks to establish a status, right or particular fact. In ci'proEcrimpro,the right is established. The status or particular fact is the source of such right. In special proceedings, proceedings, the right is not yet legally established. hy -Special./ 4ecause primarily, primarily, the rules mandating Special Proceedings are go'erned not by the ordinary ci'il action rules, but has its own nuances. >or e?ample, because the ob6ecti'e is the establishment of a right, status, or a particular fact, summons, here, is ordinarily not needed. In special proceedings, proceedings, there is no defendant, so there is no need for summons. Publication, is the means through which the court can ac@uire 6urisdiction o'er the case. Summons, as we ha'e studied is the way by which a court ac@uires 6urisdiction o'er the person of the defendant ()ule "/!. The only e'ception is, o% co&rse, (a$eas Corp&s Proceedings #herein yo& na!e a respondent $&t the respondent here is di%%erent %ro! a de%endant $eca&se s&!!ons is not necessary" •
The law on prescription will not apply. In that, the probate of the will can still be done anytime what the law only requires for period to apply is on the duty to show/present the will within from knowledge of death.
because 10 days
SETTLE0ENT O1 ESTATE O1 DECEASED PERSONS
If I were an e?aminer, e?aminer, I would definitely as in Special Proceedings, Settlement of #state and ne?t to Settlement of # state would be &doption and ne?t ne?t to that would be 7abeas 0orpus. 0orpus.
Bhen you spea of Settlement of #state, immediately what comes to your mind is that someone died (and that2s the beauty in law…men li'e fore'er in law…they continue in their estate…There are those who want someone dead because of his estate. there are also those who want somebody ali'e because he has no estate…but actually, e'en if you are a pauper or a millionaire, you always ha'e an estate. So you li'e fore'er through your estate. That estate must be settled!.
3ote that e'en in last year2s 4&) e?amination there was no @uestion on special proceedings because utmost you get only one @uestion for 4&) purposes, one @uestion in Special Proceedings. ;ery seldom if you find two @uestions in Special Proceedings. If, perhaps, the e?aminer is teaching special proceedings, proceedings, then perhaps he will as you more @uestions in the 4&), but ordinarily no…not that I2m demeaning its importance.
It is the totality of assets and liabilities of the decedent.
hat is an *estate+/
y other consolation is that you are well$'ersed in Special Proceedings, that remains to be seen starting this afternoon. )emember, Special Proceedings Proceedings is different from all other actions, including Special 0i'il &ctions. &ctions. If you are ased to define what a Special Proceeding is, A Special Proceeding is an action other than an ordinary action, a special ciil action, or a cri!inal cri!inal action" That action" That is a correct definition by e?clusion. To be more specific, Special Proceedings are actions geared or directed to#ards the esta$lish!ent o% a right, stat&s, stat&s, or a partic&lar %act. %act. The ordinary ordinary rules apply here and more so because there are specific pro'isions that distinguishes it from special ci'il actions where it has a special rule. rule. 7ere, no. It has its own uni@ueness. uni@ueness. #'ery Special Proceeding has has its own nuances. nuances. >or e?ample, because the ob6ecti'e is the establishment of a right, status, or a particular fact, summons, here, is ordinarily not needed. In special proceedings, proceedings, there is no defendant, so there is no need for summons. Summons, as we ha'e studied is the way by which a court ac@uires 6urisdiction o'er the person of the defendant ()ule "/!. The only e'ception is, o% co&rse, (a$eas Corp&s Proceedings Proceedings #herein yo& na!e a respondent respondent $&t the respondent respondent here is di%%erent di%%erent %ro! a de%endant $eca&se s&!!ons is not necessary" ): So, how does a court ac@uire 6urisdiction o'er the caseA A: There is no need for the court to ac@uire 6urisdiction o'er the person of the defendant because because there is no defendant. Therefore, the court should should ac@uire 6urisdiction 6urisdiction of the case, o'er the sub6ect matter. matter. 7owA 4ecause it is an action in rem, ordinarily publication. publication. So that is the uni@ueness of Special Special Proceedings. Publication is the means by which which the court ac@uires 6urisdiction 6urisdiction o'er the sub6ect matter. It is ordinarily not initiated by 0omplaint, but by Petition. NOTE: &gain, unlie other actions, as a general rule, Special Proceedings do not prescribe. There might be limitations of such periods in some instances, but ordinarily, ordinarily, they do not prescribe.
hy is that that the Settle!ent o% Estate is co!ple'/ It is because in this case, the person whose estate is sub6ect to contro'ersy is already 3FT around. 2 0odes o% Settle!ent o% Estate ". Gudicial a. Summar Summaryy Settle Settlemen mentt of #state a te of of small small 'alue 'alue b. Gudi Gudici c ial a l part partit itio ionn ( Rule 69) c. #scheat ( Rule 91) d. &dministr &dministrati'e ati'eE0on' E0on'entio entional nal Settlement ement of #state #state ( Rule !"9#) %. # ?t ?t ra ra6 ud ud ici al al a. #?tr #?tra6 a6udic u dicia iall parti partiti tion on b. &ffid &ffida'i a'it of of Self Self$&d $&d6ud 6udica icatio tionn A" E'tra3&dicial Partition Situation: Bhen H, the decedent left &, 4, 0, and D as heirs. The four of them enter into e?tra6udicial partition of the estate left by H. They had it published, and proceeded to the )egister of Deeds, and finally, the distribution of the estate in accordance accordance with the partition entered into. This pertains to an estate co!posing real properties" 7owe'er, if the estate composes personal properties, the four of the heirs can right away distribute among themsel'es the personal properties left by H. 4" A%%idait o% Sel%5Ad3&dication
): Bhat are the Special ProceedingsA
The re@uirements include the following:
REMREV2 NOTES || BRONDIAL 2014
(o# do yo& &ndergo #ith the A%%idait o% Sel%5Ad3&dication/ The word suggests already that it is an affidavit, which in there, you ha'e to state that your father or your mother died and that heEshe left the following properties and that you are the only heir of your parent ( e'idenced by the marriage contract of your parents and your birth certificate) and that the estate are such and such ( describe with particularity if the property happens to be a real property) , 'alued accordingly and that they are found there (location of property!. &fter complying with the same, you simply submit that to the )egister of Deeds and the )egister of Deeds will act on it only after you comply with the requirement of publication and if there are personal properties belonging properties belonging to the estate, you ha'e to put up a bond according to the 'alue or upon the discretion of the register of Deeds. This is e?tra6udicial hence, the court has no participation whatsoe'er. whatsoe'er. Cou simply submit to the )egister of Deeds, the )egister of Deeds acts on it and if there is already publication, once a wee for * consecuti'e wees in a newspaper of general circulation, the )egister of Deeds will simply transfer the title in fa'or of the affiant. ): Suppose r. H, who died, was nown to e'eryone to ha'e one child but later on, it was found out that he had other illegitimate children. children. Bhat will happen to the affida'it of self ad6udicationA ad6udicationA Is there any finalityA A: 3F. #'en if the properties ha'e already been distributed, distributed, they aer still sub6ect to claims. ): 7ow do you go about in maing an &ffida'it of Self &d6udicationA A: The word suggests already already that it is an affida'it…so, affida'it…so, how do you formulate an affida'itA affida'itA Cou simply state state in your affida'it that your father or your mother died and that heEshe left the following properties and that you are the only heir of your parent and that the estate are such and such, 'alued accordingly and that they are found there (location of property!..you simply submit that to the )egister of Deeds and the )egister of Deeds will act on it only after you comply with the re@uirement re@uirement of publication publication and if there are are personal properties properties belonging belonging to the estate, estate, put up a bond bond according to the 'alue or upon the discretion of the register of Deeds. (e?tra6udicial ha…the court has no participation whatsoe'er here! Cou simply submit to the )egister of Deeds, the )egister of Deeds acts on it and if there is already publication, once a wee for * consecuti'e wees in a newspaper newspaper of general circulation, circulation, the )egister of Deeds will simply transfer the title in fa'or of the affiant. The other mode of e?tra6udicial settlement is e?tra6udicial partition...that is not under )ule 8 because under )ule 8 is 6udicial partition…here, partition…here, the parties agreed, agreed, but tae note that there is also no will and there there are also no debts and e'en if there are debts, there is sufficient money to answer for those debts which are reser'ed…the money is reser'ed to answer for debts…so you can partition among and between between yoursel'es these properties, properties, pro'ided all of you are of age. If one is a minor, he is duly represented…ordinarily represented…ordinarily,, you as the court for the appointment of a guardian ad litem. This form of e?tra6udicial e?tra6udicial settlement is similar to Partition…there is really no distinguishing feature between e?tra6udicial partition and e?tra6udicial e?tra6udicial settlement. Gurisprudence Gurisprudence tells us that any act between and among persons that would lead to the di'ision of property is a form of partition or settlement…any act that would terminate indi'ision would be di'ision. In affida'it of self ad6udication, of course you ha'e to support your allegations with documentary e'idence (lie for e?ample, that you are the only heir, this can be pro'en through your birth certificate and also the marriage contract and the properties you wish to ad6udicate unto yourself should be established by Titles or muniments of titles!. Gudicial Settlement refers to 0on'entional: 0on'entional: )ules 9*$. Summary Settlement of #state is 'ery impractical because up to now the 'alue of the estate is still P"T (P",! but you will note that there is still a re@uirement for publication (so if you ha'e it published once a wee for * consecuti'e wees, ubos ubos na yung ten thousand mo!. Re6&ire!ents o% $oth E'tra3&dicial Settle!ent o% Estate 1. %. !.
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$he necessary necessary filing of of public instrument instrument or by by stipulation in pending action for partition partition or the sole heir heir in the latter(s affida'it of self"adudication. self"adudication. Bond with the said Register of *eeds in an amount equivalent to the value of the personal property involved as certified to under oath by the parties. +ond +ondit itio i one nedd upo uponn payment of any just claim charged with a liability to creditors, heirs, or other persons for the full period of % years after such distribution, notwithstanding any transfers of real estate that may ha'e been made. $his shall be published in a newspaper of general general circulation circulation once once a week week for ! consecuti'e consecuti'e weeks. weeks.
R&les regarding E'tra3&dicial Settle!ent o% Estates 1.
-t shall be be presumed presumed that the decedent left left no debts debts if creditor creditor files a petition for letters administration within % years after the death of the decedent.
R7LE 89 E N7E AND PROCESS" ): Is settlement of estate limited to the estate of >ilipino 0iti=enA A: 3o. ): If an &merican was in the Philippines because he was a member of the &rmed >orces, who 6oined the 4aliatan >orces in indanao and he died here, where should the settlement settlement of estate be doneA Is it the place of one2s death which is determinati'e of the 'enueA Suppose one had + residences because because he had + wi'esA A: This is a 'ery confusing pro'ision pro'ision because the title is ;enue ;enue < ProcessJ but the word K'enue2 K'enue2 is ne'er mentioned. mentioned. Fn the other hand, the word 6urisdiction is mentioned three (*! times. ): So, is the last residence of the decedent a matter of 6urisdiction or a matter of 'enueA A: It is a matter of 'enue so you cannot cannot @uestion it. ): Suppose r. H, a >ilipino citi=en residing residing in 0ebu 0ity died at St. 1ue2s 7ospital, Lue=on 0ity, 0ity, where should his estate be settledA A: In 0ebu because it is the place of the final residence of the decedent. ): Suppose the heirs filed a petition for settlement of the estate in Lue=on 0ity, 0ity, is the 'enue properly laidA A: A: 3o. ): So, what happens to the caseA caseA A: The A: The settlement must continue because 'enue is not 6urisdictional. 6urisdictional. 1et me emphasi=e to you that in ci'il cases, including special proceedings, proceedings, 'enue is not 6urisdictional, unlie in criminal cases, 'enue is 6urisdictional and from what we ha'e learned under )ule / of the )ules of 0ourt, 'enue may be wai'ed. So, if there is no opposition, there is no @uestion as to the petition filed by anybody for the settlement of the estate of r. H who is a resident of 0ebu, the petition is filed in Lue=on 0ity, the issue is not 6urisdiction but only of 'enue. 4ut considering that there was no opposition, then the petition for settlement must continue. Sec" ; there does not spea< o% 3&risdiction" 3&risdiction" =&risdiction =&risdiction here is con%erred con%erred $y la# and RA 8>?; con%ers that depending on the al&e o% the gross estate, #hich can either $e the 0TC or the RTC" ): Bhat is )esidenceA )esidenceA (Cou must ha'e come across the leading case, 0uenco, et. al 's. 0uenco, cited in your boo (it has to cited in your boo! because because that is a 'ery leading leading case, also the case of >ule, et al. 's. 0&, these are the cases about 'enue and 6urisdiction…emphasi=es 6urisdiction…emphasi=es these these cases cited in all boos. boos. #usebio 's. #usebio, that is also also cited in your boo… boo… These are @uestions about the conflicting rules on 'enue and 6urisdiction.! A: It is now settled (because of there cases! that residence residence is only a matter of 'enue. It is not a matter of 6urisdiction. In this )ule, the word ;#3# ne'er appeared. 4ut the word 6urisdiction appears three times. hat co&rt has 3&risdiction oer settle!ent o% estate cases/ The 6urisdiction is determined based on the 5)FSS ;&1# of the property sub6ect to settlement. It is in )T0, if the gross 'alue e?ceeds *, outside etro anila or if it e?ceeds /, within etro anila. 7owe'er, it is in T0 if the otherwise appears. hat #ill $e the releance o% EN7E in this R&le/ This is pro'ided for in the long line of cases starting from +uenco 's. +uenco, ule 's. +2 and latest is 3an 4uis 's. 3an
REMREV2 NOTES || BRONDIAL 2014
This case of 0uenco is about Senator 0uenco. That 0uenco Street in Lue=on 0ity, parallelled to #spaMa or Lue=on 4l'd. 7e was a resident of 0ebu but also had a house in Lue=on 0ity because he was a member the Senate. Bhen he died in Lue=on 0ity, his residence was in 0ebu. Bhen he died, he was already a widower at the time, so he had two families: the first family with his first wife and the second family with his second wife. 7is second wife, staying with him in Lue=on 0ity, filed a petition for the settlement of his estate in the R! "hen !#$% of &.! . &fter the $ day no'ena for his demise, the heirs of Senator 0uenco in 0ebu 0ity, filed a petition for settlement of his estate in 0ebu. This reached the S0. he issue was in fact wrong : Bhich court has 6urisdictionA $t is not a matter of jurisdiction but only of venue . 4ut the greater error here is not the error of the petitioners but the error of the 0ourt. &hy5 4ecause the L.0. 0ourt on its own initiati'e (motu propio! said we are going to gi'e way to the court in 0ebu to settle the estate.J That cannot $e done $eca&se &nder the R&le, the co&rt #hich %irst ta
1.
$f within + years after settlement and distribution of an estate, an heir or other person has been unduly deprived of his lawful participation in the estate such heir or such other person may compel the settlement of the estate in the courts for the purpose of satisfying such lawful participation.
2.
$f within + years, it shall appear that there are debts outstanding against the estate which have not been paid or that an heir or other person has been unduly deprived of his lawful participation payable in money the court may by order for that purpose, after hearing settle the amount of such debts or lawful participation and order how much and in what manner each distribute shall contribute in the payment thereof and may issue e0ecution, if circumstances re@uire, against the bond or against the real estate belonging to the deceased or both.
3.
hen can !inor or incapacitated person %ile a clai! against estate in this R&le/ -f on the date of the e0piration of the period of % years, the person authori:ed to file a claim is a minor, mentally incapacitated, or is in prison or outside of the ;hilippines, he may present his claim within one 1) year after such disability is R7<=7*.
=&dicial Partition This is pro'ided for under Rule 69 on ;artition. Escheat •
This case was followed by the case of #usebio 's. #usebio and finally settled in the case of >ule 's. 0&, a "9+ case. Tae note of that doctrine because that is 'ery basic in Settlement of #state under Sec. " of the )ule, there does not spea of 6urisdiction but only of 'enue. In 1&le it has $een settled that the residence is the act&al place o% ha$itation" •
So that if a person has two residences, the >ule case settled that residence is the place o% act&al ha$itation or it !ay not $e the place o% act&al ha$itation, proided there is ani!&s !anendi intent to re!ainB and ani!&s reertendi intent to ret&rnB"
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st
%.
2 petition alleging the 1 requirement must be filed by an interested person.
!.
$his can only be done upon hearing which shall be held not less than 1 month nor more than * months from the date of the last publication of a notice.
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$he notice must be published once a week for ! consecuti'e weeks in a newspaper of general circulation.
. 6.
otice to other interested persons as the court may direct. $his can be proceeded to by the court summarily and e'en without the appoin tment of e0ecutor or administrator, and without delay to grant, if proper, allowance of will. $he purpose will be. a.
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$o determine who are persons legally entitled to participate in the estate.
b.
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$o apportion and di'ide among the heirs after payment of such debts of the estate as the court shall then find to be due, to persons in their own right, if they are of lawful age and legal capacity or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to recei'e and enter into the possession of the portions of the estate so awarded to them respecti'ely. c. $o also make such other orders as may be ust respecting the costs of the proceedings and all other orders and udgments made or rendered in the course thereof shall be recorded in the office of the clerk, and the order of partition or award, if it in'ol'es real estate, shall be recorded in the proper register(s office. *istrib utees shall be required to fil e a bond in an amount to be fi0ed by the court for personal property,
;erson die s intestate
1.
Re6&ire!ents &nder the R&le: $he gross 'alue of the estate of a deceased person, testate or intestate) *73 $ 78+77* )10,000.
Re6&ire!ents $e%ore %iling: a.
R7LE 8: S700AR ESTATE
1.
In another form of Gudicial Settlement, -scheat tells us that if a person dies without a will, without an heir, and no debts, then the ffice of the /olicitor eneral or his representative such as the pro'incial or city prosecutor) may file a petition, under the directive of the )resident of the )hilippines, an -scheat )roceeding .
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Is there a possi$ility to still %ile an escheat proceeding despite the presence o% a #ill/ Ces. #'en if the decedent died testate but his will was 3FT P)F4&T#D, it is as if he has no nown heirs and there are no persons entitled to his property. b. 3ei:ed of real or personal properties in the ;hilippines c. 4eft no heir or person by law entitled to the same here to %ile/ a. -f resident, R$+ where the deceased last resided or in which he had estate. b. -f non"resident, R$+ of the place where his estate is located. 4ut if it happens that during the pendency of the proceeding, a will pops up, and then the proceeding is discontinued. If an heir, de'isee, legatee, widow, widower or other person entitled to such estate (P#)SF3 BIT7 I3T#)#ST! pops up and files a claim thereto with the court #ithin years %ro! the date o% s&ch 3&dg!ent, then the proceeding may be suspended and such appearing person with interest shall establish his right otherwise, after the hearing, the property will go to the go'ernment. This escheat proceeding is founded on the theory that all lands belong to the State nown as the Regalian Doctrine that you studied under 1TD (1and Titles < Deeds and he who claims otherwise has the burden of proof so after the escheat proceedings, the property belonging to the estate will go to the city or municipality where it is found! and so as the Order o% S&ccession in 0i'il 0ode. The period of filing claims is BIT7I3 + C# &)S >)F D&T# F> GD5#3T, and such + years shall be reconed from the D&T# T7# P)FP#)TC B&S D#1I;#)#D TF T7# ST&T#. 7owe'er, if the property has been sold, the municipality or city shall be accountable only for such part of the proceeds as may 3FT 7&;# 4##3 1&B>11C SP#3T. The co&rt, at the instance o% an interested party, or on its o#n !otion, !ay ORDER T(E ESTA4LIS(0ENT O1 A PER0ANENT TR7ST, so only the inco!e %ro! the property shall $e &sed"
REMREV2 NOTES || BRONDIAL 2014
for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities. hat are the orders o% the co&rt a%ter a petition is s&%%icient in %or! and s&$stance/ 1.
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*irect the publication of a copy of the order at least once a week for 6 consecuti'e weeks.
hat #ill $e the re!edy o% the Respondent/
petition for settlement of estate, you ha'e to attach the will in your petition. 4ut if you are not in custody of the will and you are interested in the settlement of the estate , you simply file a petition without the will anne?ed. This can also be e'idenced by the pro'ision under )ule 98 Section * that, upon presentation of the will to the court ha'ing 6urisdiction, the court will now set the date for hearing thereof with the e?ception when the testator on its own initiati'e probated his will during his lifetime, in which case, no p&$lication is re6&ired and notice #ill only $e re6&ired to $e !ade to co!p&lsory heirs. 7ence, S))#3D#) here is tantamount to a petition.
Bhen the petition does not state facts which entitle the petitioner to the remedy prayed for, the respondent may file a FTIF3 TF DISISS the petition.
Situation: 7 is a resident of 0aloocan and he e?ecuted a will. 7e ga'e it to his umpadre as a custodian who li'ed in 4aguio. 7 died in 0aloocan. The umpadre surrendered to )T0 of 4aguio 0ity which is the court of proper 6urisdiction, the will e?ecuted by 7.
To #ho! #ill the property escheated $e assigned/
0ay the heir still %ile a petition/ 3o, because of the #H01SIF3&)C )1# under )ule 9* in that mere surrender of the will commences the settlement of the estate.
1. $f personal property to the
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nder )ule ", Sec.+ is another form of escheat because that was gi'en in the 4&) + years ago. This speas of REERSION. In other words, the property was ac@uired by an indi'idual in 'iolation of the 0onstitution. nder the 0onstitution, any person, e'en foreigners who were former >ilipinos, can now ac@uire property in the Philippines and that was gi'en more strength because of the Dual 0iti=enship 1aw. &ctions for )#;#)SIF3 are proper in illegal sales o% land to dis6&ali%ied aliens" This will in no way apply to properties taen from enemy nationals after BF)1D B&) II and which were reac@uired by the )epublic because such reac@uisition was in pursuant to the Philippine Property &ct of "/8 and not by 'irtue of an #S07#&T P)F0# #DI35. The action must be instituted in the pro'ince where the land lies in whole or in part.
hat co&rt has 3&risdiction/ &gain, it depends on the gross 'alue of the estate in'ol'ed. hat i% all the heirs resided in Caloocan City, and they %iled petition %or pro$ate in RTC o% Caloocan, gien that the s&rrender o% the #ill #as done in RTC o% 4ag&io #here the c&stodian resided, can the heir !oe to dis!iss the case in 4ag&io/ Ces, because )T0 of 0aloocan has no 6urisdiction since the commencement of the settlement was already done in )T0 of 4aguio which is understood to be to the e?clusion of other courts. hat i% the petition no# #as %iled in RTC 4ag&io City, and yo& !oe %or its dis!issal in yet another RTC $ranch, ho# #ill yo& r&le on the sa!e/ The same thing, you cannot do so because once a branch of R$+ takes cogni:ance of the case, it is still understood that it is to the e0clusion of the other branches of such R$+, if any. I% yo& are a c&stodian o% a #ill o% the decedent, #hat is yo&r o$ligation/ To deli'er to the court the will w ithin % days after the death. (Sec. %, )ule 9+! R&les &nder this R&le: 1.
$here is a corresponding sanctions to custodian and e0ecutor and also to persons retaining the will when not heeding to the mandate/order of the court, which are>
Een i% title thereto #as not trans%erred to the Goern!ent, can it $e escheated to local goern!ent/ 3o.
a.
The thirds instance of escheat is that of unclaimed dormant accounts for " years under the 7nclai!ed 4alance Act which shall be filed at the )T0 of the place where the dormant deposits are found.
b.
& person who neglects any of the duties of a custodian without e?cuse satisfactory$ fined not e?ceeding %,. & person ha'ing custody of a will who neglects without reasonable cause to deli'er the same when ordered to do so " committed to prison and there ept until deli'ery.
The right to escheat !ay $e #aied e'pressly or i!pliedly" The proceedings in Escheat CANNOT 4E CONERTED INTO SETTLE0ENT O1 ESTATE">or the distribution of the estate of the decedent to be instituted, the proper petitions must be presented and the proceedings should comply with the re@uirements of the )ule. This is so because, an escheat proceeding does not ha'e the power to order or proceed with the distribution of the estate of a decedent in escheat proceedings and adudicate the properties to the oppositor. (unicipality of agalloon, 3egros Fccidental 's. Ignatius 7enry, Fct. %8, "8!
R7LE 8>5 ALLOANCE OR DISALLOANCE O1 ILL hat is Pro$ate/ It is the act of pro'ing in a court a document purporting to be the last will and testament of a deceased in order that it may be officially recogni=ed, registered and its pro'isions carried out insofar as they are in accordance with the law or also nown as allo#ance o% the #ill"
D" Ad!inistratieFConentional Settle!ent o% Estate This is pro'ided for under Rule !"9# of the )ules of 0ourt.
hat #ill $e the contents o% the Petition/ The following must be shown on the petition as far as nown to the petitioner:
R7LE 8: PROD7CTION O1 ILL ALLOANCE O1 ILL NECESSAR nder the )ule, it says that, o will shall pass either real or personal property unless pro'ed and allowed in the property court. 2nd that subect to the right of appeal, such allowance of the will shall be conclusi'e as to its due e(ecution. Are yo& $o&nd to %ile a petition/
1.
%. !.
$he urisdictional #acts2 a.
*eath of the testator
b.
?is residence at the time of death or the pro'ince where estate was left by the decedent who is non"resident
ames, ages and residences of the heirs, legatees and de'isees of the testator or decedent ;robate 'alue and character of the property of the estate
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@ 3o defect in the petition shall render 4$5 the allowance of the will or the issuance of letters testamentary or of administration with the will anne(ed.
hat is the e%%ect o% the pro$ate o% the #ill/ It is conclusi'e as to the e?ecution and 'alidity of the will (e'en against the S tate!. $hus, a criminal case against the forger may not lie after the will has been probated because the probate of the will is conclusi'e as to its e0ecution and 'alidity. hat is the iss&e in pro$ate o% the #ill/ It is with respect only to the determination of the e?trinsic 'alidity ( due e0ecution) , not the intrinsic 'alidity of testamentary dispositions. E'ceptions: 1.
n ;rin cip le of ;ractical +onsideration a. The waste of time, effort, e?pense, plus added an?iety are the practical considerations that induce us to a belief that we might as well meet head on the issues of the 'alidity of the pro'isions of the will in @uestion. b.
Bhere the entire or all testamentary dispositions are ;FID and where the defect is apparent on its face.
1et us go now regarding these two: It can be testate or intestate. Cou now testate, in other words, there is a will. Intestate, there is no will. The distinction, regarding these two will gi'e you also the distinction between an e?ecutor and an administrator. ): Bhat is the distinction between an e?ecutor and an administratorA A: The e?ecutor is the one appointed by the decedent as embodied in the will. The administrator is the one appointed by the court if there in no will, or if there is a will but does not designate an e?ecutor, or e'en if there is an e?ecutor, the e?ecutor refuses to accept the trust or fails to put up a bond… These are the re@uirements: 7e is either not @ualified he fails to accept the trust or he fails to put up a bond so an administrator may be appointed. ): &n administrator is of two inds, what are theyA A: )ule - ".
Special &dministrator ( also of two inds!: Bith the will or Bithout a will anne?ed
%.
)egular &dminis trator
): In what instances may the court appoint a special administratorA ".
Delay in granting of 1etters of &dministration
%.
Sec. -, )ule -8: The e?ecutor is a claimant of the estate he represents.
): So, when you go to testate, why is it here that they are of two inds: with the will or without a will anne?edA 7ow would you e?plain thatA Nailan nangyayari itoA If you are a custodian of a will of the decedent, what is your obligationA A: To deli'er to the court the will within % days after the death. (Sec. %, )ule 9+! ): &re you bound to file a petitionA A: 3o. The obligation there is only to deli'er the will. 4ut if you do file a petition, because you are the custodian of the will, you must ha'e an interest in the estate. Cou may either be the named administrator, a de'isee, a legatee, or a creditor, and with more reason, if you are an heir, you ha'e an interest. If you are in the custody of the will, and you filed a petition for settlement of estate, you ha'e to attach the will in your petition.. 4ut if you are not in custody of the will and you are interested in the settlement of the estate, you simply file a petition without the will anne?ed. In many instances, I was telling you that settlement of estate is the best e?ample of multiple appeals, dibaA 4ecause in the settlement of estate there are se'eral stages. ): If it is a testate proceeding, what is the first stageA A: Probate of a will.
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nder this lesson on a probate of a will, there is this general proposition that the probate court (the court probating a will! either the T0 or the )T0, is a court of limited 6urisdiction.
Supposing he is not released, your remedy is to file a petition for habeas corpus because the basis .for restraining his liberty no longer e?ists. (So ita nyo ang correlations.! Be are taling here of allowance of the will within the Philippines.
): Bhat does it mean when the )ule says that a probate court is a court of limited 6urisdictionA A: & probate court can only rule on the due e?ecution of the will and not as to its intrinsic 'alidity. This is what you ha'e to understand. #'en lawyers do not reali=e this. Sabi nila probate court yan so you cannot @uestion, you cannot raise the issue of ownership. The probate court ceases to be a probate court upon allowance or disallowance of a will but it remains to be a court no longer of limited 6urisdiction. That is why I was emphasi=ing on the petition as settlement of estate and not as a petition for the probate of a will. BhyA Fnce a will has been probated, that2s the end of itA 3o. It is only the first stage in the testate proceedings. So when the )ule says that the probate court is a court of limited 6urisdiction, only as far as the probate of a will is concerned. Pagatapos nun, the court is no longer of limited 6urisdiction because it has to go…appointment of the administrator or e?ecutor, appro'al of the accounting, appro'al of the in'entory, then payment of debts..papaan o limited pa yunA 3o longer. So as a probate court, the court is limited to the issue of authenticity and due e?ecution, but you do not transfer courts after the will has been probated, after the will has been allowed or disallowed which is a final resolution which is a final order or resolution of the court which is appealable. 4ut the appeal here is by record on appeal because it is multiple appeal. The court now is no longer of limited 6urisdiction because it is no longer a probate court. ): &no ba ang end of settlement of estateA A: Distribution under )ule . The first stage of settlement of estate, if it is a testate proceeding is the probate of the will. That is where the court has limited 6urisdiction.
): Suppose a will was e?ecuted and allowed (probated! outside the Philippines, what happensA A: 5o to the ne?t )ule, )ule 99: &llowance of Bill pro'ed Futside of the Philippines and &dministration of #state thereunder. ): &n &merican citi=en residing in 0alifornia died in 0alifornia, his will was probated in the county state of San 4ernardino. That will has been allowed in the .S. Should that will be also allowed in the PhilippinesA A: 3o. ): Bhat should anyone interested in the allowance of the will in the Philippines do because the deceased had property in the PhilippinesA A: It should be re$probated here and the 'enue is in the proper court of any pro'ince where the decedent had property. This rule shall be read in con6unction with Sec. /-, )ule *: >oreign Gudgment. ): Bhat are you supposed to establish or pro'e in the re$probate of a willA A: • • •
): Bhy is this soA Bhy does this issue pop up hereA
•
A: This is because during probate of the will, in the 'ery petition, the 6urisdictional re@uirement is that you ha'e to state what constitutes the estate and the 'alue of the estate. Gurisdictional facts. ): If an oppositor enters the picture, the oppositor says mali yan because what constitutes the estate are these properties, but what is stated in the petition do not belong to the estate, now, can the court decide the ownership of those propertiesA A: 3o. That is where the limited 6urisdiction comes into the picture. It cannot because the court has only the duty of discussing whether the will has been duly e?ecuted so this is only as to the e?trinsic 'alidity of a will. The intrinsic will come much, much later, the disposition of the will. The issue of ownership is outside the 6urisdiction of the probate court. 4ut if the probate court cannot continue without deciding the issue of ownership, the issue of ownership being incidental (intimately related to the issue of probate! to the probate of the will, must be decided, but the decision here is not final. It is only pro'isional and it can be contested in other proceedings and the rule on res 6udicata will not apply.
• •
The due e?ecution of the will in accordance with the foreign law That the testator had his domicile in the foreign country and not in the P hilippines That the will has been admitted to probate in such country The fat that the foreign tribunal is a probate court That the laws of a foreign country on procedure and allowance of wills. The fact of death (6urisdictional fact! of the testator in a place within the territorial 6urisdiction of the court.
These are mandatory re@uirements. These must all be established in the Philippine courts. That is how to re$probate a will which has already been allowed. Thereafter, the court should appoint an administrator. The foreign allowance of a will leads to the appointment of a domiciliary administrator. Fnce it is probated in the Philippines, the court appoints an ancillary administrator. ): Bho may petition for the allowance of the will or who may oppose theretoA A: &nybody who has an interest in the estate or in the disposition of the estate of the decedent ): Bhat are the @ualifications for one to be appointed as administrator of the estateA
In the case of 4 alaraw which was assigned to you, that was also the issue in'ol'ed.
A: &ny competent person may ser'e as e?ecutor or administrator. 7e is incompetent if:
In the beginning, there is no defendant. The e@ui'alent of a defendant in a probate proceeding is the oppositor. The oppositor is not only opposing the probate of the will, but also settlement of the estate, for one reason or another.
". %. *.
The ob6ecti'e of the settlement of the estate is the distribution of the estate among the heirs or those entitled thereto, although not heirs (those persons named in the will!. Fnce the court allows or disallows a will, as the case may be, the nature of the court as a probate court ceases. Therefore, the issue of limited 6urisdiction no longer applies. 1imited 6urisdiction applies only to the authenticity and due e?ecution of the will. ): Fnce the will is allowed, Bhat does it meanA A: )ule 98: &llowance of the Bill If r. & is accused of a crime of falsification of documents by forging the signature allegedly of a testator and during the pendency of the criminal action, the will allegedly forged by r. & was probated and allowed, the criminal case should be
a minor a non$resident one who in the opinion of the court is unfit to e?ercise the duties of the trust by reason of : a. dr un en nes s b. i mpr o' iden ce c. want of understanding and integrity d. con'iction for an offense in'ol'ing moral turpitude.
): If a man cannot sleep without drining at least * beers before he goes to sleep, can he be appointed as administratorA A: Ces. 7e is not a drunard. ): Suppose in the 'ery will, the testator named an e?ecutor of his estate, may the court appoint another one other than the one named in the willA
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*. is incompetent. ): In the course of the administratorship, when one has already be appointed, can he be remo'edA Fn what groundsA A: Ces. )ule -%: )e'ocation of &dministration, Death, )esignation and )emo'al of #?ecutor or &dministrator. Sec. %. 5rounds: ". %. *. /. +.
neglect to render accounts within " year or when the court directs neglect to settle the estate according to the )ules neglect to perform an order or 6udgment of the court or a duty e?pressly pro'ided by these rule ab sc on di ng or insanity or incapability or unsuitability to discharge the trust.
): If a special administrator is appointed because the regular administrator has a claim against the estate, what happens to the regular administratorA A: The regular administrator is not remo'ed by the appointment of the special administrator because the regular administrator has a claim under Sec. - of )ule -8. The special administrator only has a specific function which is only to wor on the claim of the regular administrator.
ho !ay %ile %or the allo#ance o% #ill/ &ny party who has direct and material interest in the will or estate consisting of: D5 De'isee E5 #?ecutor L5 1egatee T5 Testator A5 &ny other person interested in the estate hy !ay $e dis6&ali%ied/ 7ere, you ha'e to consider the last person allowed filing, A2ny other person $3-R-/-5 $3 6- -/7-8 which means any person who would be benefited by the estate such as an 7#I) or one who has a claim against the estate, such as 0)#DITF). 7ence, those not ha'ing such @ualification may be dis@ualified to file for the allowance of the will.
The e?ecutor of an e?ecutor cannot be appointed as e?ecutor of the principal testator.
Situation: If & e?ecuted the will and in his will, he named 4 as de'isee, 0 as legatee and spurious son D, so as sister.
E'a!ple: )ichard is the testator. 7e appointed Piolo as his e?ecutor. 1ater on Piolo died. In the will of Piolo, he appointed Sam as his e?ecutor. Sam cannot be the e?ecutor of the estate of )ichard.
ho a!ong the persons stated in the #ill !ay %ile a petition/
Reason: &n e?ecutor taes charge of the estate. If you are an e?ecutor and you died and you ha'e an own estate and the e?ecutor of your own estate will now e?ecute the estate of your testator that appointed you, there will be conflict of interest (agaaroon ng sama sama yung estate. agaa halo halo!. To a'oid possible corruption in the administration of one2s estate.
&ll e?cept B because the latter cannot file because under the )ule on Succession, a sister is not one in which will be inherited by the decedent unless the spurious son is not included in the facts. hat are these concepts re%erring to/ ;"
N o # itn es s r& le a"
): Bhat are the duties of a special administratorA A: Sec. %, )ule -: ". %. *. /.
+.
possessio n and charge of the propertie s preser'e the properties commence and main tain a suit for the estate sell only: a. peris hable property and b. those ordered by the court pay debts only as may be ordered by the court.
O ne #it ne ss r& le
9"
T# o # itn es s r& le
a" a"
A: It depends. If the lease is not for more than one ("! year, he can because it would fall under acts of administration. 4eyond that, it is already an act of disposition "
): Suppose the testator in naming an e?ecutor of his estate specifically states there that he should ser'e as administrator without a bond. 0an the court nonetheless re@uire a bondA A: Ces. The court has a 'ery wide discretion. Fnce a regular administrator is appointed, the continuation of the duties and functions of a special administrator will now reside in the special administrator. 4ut always remember that if it is an act of disposition or con'eyance, which cannot be done by an appointed e?ecutor or administrator without permission of the court. Cou always file a motion for lea'e of court to sell a specific property and this is part of your accounting one year after.
"
In probating holographic will or notarial will and there is no contest thereof. In case of a loss or destruction of notarial will, for the purpose of establishing the e?ecution and 'alidity thereof, 3F 3FT&)I&1 BI11 S7&11 4# P)F;#D in circumstances mentioned, when the will is pro'ed to ha'e been in e?istence at the time of death of the testator or is shown to ha'e been fraudulently or accidentally destroyed in the lifetime of the testator without his nowledge, 31#SS its proisions are clearly and distinctly proed $y at least 2 credi$le #itnesses" If pro'ed, the pro'isions thereof must be distinctly stated and certified by the Budge under the seal of the court and the certificate must be filed and recorded.
Three #itness r&le a"
): If the court appoints r. H as special administrator, is the order final and appealableA
The special administrator is liewise re@uired to put up a bond.
This is only applicable in case there is a lost or destroyed holographic will or the testator probated his own holographic will. 5eneral rule: & holographic will if destroyed 0&33FT be probated. #?cept: If there e?ists a photostatic or Hero? copy thereof.
2"
): 0an he encumber the property of the estate through leaseA
A: 3o. It is only interlocutory and unappealable because if you appeal the appointment of a special administrator, there will be no end to the settlement of the estate.
9 as
)e@uired if someone else filed the probate of the will. If a holographic will is contested, the same shall be allowed if at least three 9B #itnesses #ho
1 o& r # it ne ss r& le a"
In case of notarial will to be probated, whether contested or not, referring to the number of subscribing witnesses. It is re@uired that all the subscribing witnesses and the notary in case wills e0ecuted under +i'il +ode.
hat are the gro&nds %or Disallo#ing ills/ 15 If the will is not e?ecuted and attested as re@uired by law %ormalities thereof I5 If the testator was insane or otherwise mentally incapable to mae a will, at the time of its e?ecution D5 If it was e?ecuted under duress, or the influence of fear or threats 75 If it was procured by &ndue and improper pressure and influence, on the part of the beneficiary or of some other person for his benefit
REMREV2 NOTES || BRONDIAL 2014
R7LE 85 LETTERS TESTA0ENTAR AND LETTERS O1 AD0INISTRATION, (EN AND TO (O0 ISS7ED R7LE 885 ALLOANCE O1 ILL PROED O7TSIDE O1 P(ILIPPINES AND AD0INISTRATION O1 ESTATE T(ERE7NDER hat is the rationale %or the re5pro$ate/ This is because the Philippine courts do not recogni=e foreign 6udgment, and such that probate of the will abroad is one ind of a foreign 6udgment. (o# #ill this $e en%orced in o&r 3&risdiction/ In relation to )ule *, Section /-, the effect of a 6udgment or final order of a tribunal of a foreign country, ha'ing 6urisdiction to render the 6udgment or final order will be
1.
+onclusi'e upon the title to the thing" in case of a 6udgment or final order upon specific thing
2.
;resumpti'e e'idence of a right as between the parties and their successors in interest by subsequent title" in case of 6udgment against a person. •
$n either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud or clear mistake of law or fact.
hat is Letter Testa!entary and Letter o% Ad!inistration/ 1etter Testamentary$ It is a process in which there is an appointment of an e?ecutor. 1etter of &dministration$ It is a process in which there is no appointment of an e?ecutor Can a letter o% ad!inistration $e iss&ed een i% a #ill proides %or e'ec&tor/ Ces. Section / hereto pro'ides that a letter of administration may be issued e'en if there e?ist a will designating an e?ecutor, if the latter is inco!petent, re%&ses to accept the tr&st and %ails to gie a $ond" hen letters o% ad!inistration $e granted/ 1. %. !.
To #ho! letters o% ad!inistration granted/ There is preference of persons allowed by Rules, as follows> 1.
hat i% the pro$ated #ill a$road is not esta$lished as a %act o% s&ch pro$ate, #hat la#s #ill apply/ The doctrine on processual presumption will be applicable, in a sense that foreign law is considered as the same as that of the domestic law hich co&rt has 3&risdiction %or re5pro$ate o% #ill/ It is in the )T0 because the sub6ect matter, that is, probate of will ( considered as foreign udgment) , is incapable of pecuniaryestimation. here is the en&e/ It is in the place of final, and actual abode of the decedent. In the absence of residence, the place where any of the property is located to the e?clusion of other 'enues. EHCL7SIONAR R7LE STILL APPLIES (ERE" ho !ay %ile/
-f no e0ecutor is named in th e will, or the e0ecutor/s are incompetent, refuse to accept the trust or fails to gi'e a bond, or a person die s in testate.
%. !.
$o the sur'i'ing spouse, or ne0t of kin, or both, in the discretion of the court, or their nominee, if competent and willing to ser'e. -n default of the foregoing, to one or more of the principal creditors, if competent and willing to ser'e. -n default of the preceding, to such other person as the court may select.
ho are inco!petent to sere as e'ec&tor or ad!inistrator/ They could be either of the following:
1. 2 minor (Fb'iously, a minor is incapacitated to manage the trust! 2. 2 non"resident of the ;hilippines (The reason for dis@ualifying such is because it would be impossible for such person not residing therein to administer the estate of the deceased or be around to satisfy for the duties of an e?ecutor or administrator!
3. 2 person in the opinion of the court is unfit to e0ecute the duties of the trust by reason of> a.
&ny person interested in the estate.
b. c.
In the petition %or re5pro$ate, #hat sho&ld $e alleged/
d.
1.
$hat the testator was domiciled in a foreign country.
%.
$hat the will has been admitted to probate in such country.
!.
$hat the foreign court was, under the laws of said foreign country, a probate court with jurisdiction over the proceedings.
.
$he law on probate procedure in said foreign country proof of compliance therewith.
.
$he legal requirements in said foreign country for the valid e(ecution of the will.
Drunenness (Such e?tent as would affect the capacity of a person by reason thereto, in managing the trust with respect to such estate! Impro'idence Bant of nderstanding or Integrity
4y reason of coniction o% an o%%ense in'ol'ing moral turpitude ()emember that this ground pertains only to an F>>#3S#, not a CRI0E unlie in &doption, in this case, it will pertain to some offenses relating to immorality, say, urinating in public! $he e0ecutor of an e0ecutor shall not administer the estate of the first testator (This dis@ualification is in order to pre'ent possible conflict of interest or commingling of estates of the two testators. &n illustration will be in that, if & is the first testator, who appointed 4 as his e?ecutor in the former2s will, 4 died with an estate appointing 0 as his e?ecutor. In this case, 0 cannot be allowed to administer the estate of & because he is now managing the estate of 4 as the testator! 7pon, iss&ance o% those letters Letters testa!entary and Letters o% ad!inistrationB, #hat #ill co&rts do/
There sho&ld $e appoint!ent o% ancillary ad!inistrator $he administrator appointed to take charge of the properties in the ;hilippines, domestic) and do!iciliary ad!inistrator $he administrator domiciled in foreign country) E%%ects o% the allo#ance o% a #ill &nder this R&le: 1. $he will shall be treated as if originally pro'ed and allowed in ;hilippine courts. %. 4etters testamentary or administration with a will anne0ed shall e0tend to all estates in the ;hilippines. !.
2fter payment of ust debts and e0penses of administration, the residue of the estate shall be disposed of as
nder Rule C6 +laims 2gainst 7state), immediately after granting letters, the court shall issue a notice re@uiring all persons ha'ing money claims against the decedent to file them in the office of the cler of court of said court. &nd it will now be the duty of e'ery e?ecutor or administrator, after the notice to creditors is issued, to cause the same to be published in * B##NS S00#SSI;#1C in a newspaper of general circulation in the pro'ince and to be posted for the same period in / public places in the pro'ince and % public places in the municipality where the decedent last resided. Can Letters testa!entary $e o$3ected to/ Ces, it may be ob6ected and whate'er resolution or resolution with that respect is >I3&1 &3D &PP#&1&41#. 7ence, this
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INTERLOC7TOR, hence, 7NAPPEALA4LEand the remedy therefrom is P#TITIF3 >F) 0#)TIF)&)I alleging gra'e abuse of discretion. R7LE 8?5 OPPOSING ISS7ANCE O1 LETTERS TESTA0ENTAR" PETITION AND CONTEST 1OR LETTERS O1 AD0INISTRATION" hat is a Petition %or Pro$ate #ith a ill Anne'ed/ In this situation, there are two (%! petitions in'ol'ed:
1.
;etition filed by any interested person in a will stating the grounds why letters testamentary should not issue to the persons named therein e0ecutors, or any of them, and at the same time,
%.
iling of ;etition for 4etters of 2dministration with the will anne0ed.
ho #ill %ile a Petition #ith a #ill anne'ed/ It is that person who has 3F custody of the will or any person interested in a will. hat are the re6&ire!ents %or opposition to petition %or ad!inistration/ 1.
%.
iling of a written opposition by any interested person, contesting the petition on the ground of> a. Incompetency of the person for whom letters are prayed therein, or b. Fn the ground of the contestant2s own right to the administration. 2nd may pray that the letters issue to himself, or to any competent person or persons named in the opposition.
hen #ill Special Ad!inistrator ceases to $e s&ch/ Bhen @uestions causing the delay are decided and e?ecutors or administrators are appointed. R7LE ;5 4ONDS O1 EHEC7TORS AND AD0INISTRATORS The bonds under Section / thereto for Special &dministrator, shall be in a sum as the court directs conditioned that he will mae and return a true in'entory of the properties in possession while in case of regular administrator, the bond will be conditioned to the entire estate for its preser'ation. The regular e?ecutor may ser'e without a bond as directed by the testator in the latter2s will or with only his indi'idual bond conditioned only to pay!ent o% de$ts o% the testator, $&t the co&rt !ay re6&ire s&ch e'ec&tor the %iling o% a %&rther $ond in case a change in his circ&!stances or %or other s&%%icient ca&se" Such latter bond is called STAT7TOR 4OND, as prescribed for by statutes and will continue so long as the court has 6urisdiction o'er the case. hat are the d&ties o% e'ec&tors and ad!inistrators/ 1.
%. !. . . 6.
$o make and return to the court, within * months, a true and complete in'entory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of any other person for him. $o administer according to these Rules the estate, and from proceeds, to pay and discharge all debts, legacies and charges on the same or such di'idends declared. $o render a true and ust account of his administration to the court within 1 year and at any other time when required by the court. $o perform all orders of the court. *uty to sell , encumber or mortgage *uty for distribution of the estate remaining.
Can Letters o% Ad!inistration $e granted to stranger/ Ces. 1etters of &dministration may be granted to any @ualified applicant, though it appears that there are other competent persons ha'ing better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themsel'es. R7LE J5 SPECIAL AD0INISTRATOR An ad!inistrator is o% t#o &ith the will or &ithout a will anne0edD Regular2dministrator
R7LE 25 REOCATION O1 AD0INISTRATION, DEAT(, RESIGNATION, AND RE0OAL O1 EHEC7TORS AND AD0INISTRATORS hen #ill ad!inistration $e reo
-f he neglects to settle estate according to the Rules,
hat is the distinction $et#een an e'ec&tor and an ad!inistrator/
!.
-f he neglects to perform an order or udgment of the court or a duty e0pressly pro'ided by Rules,
The e?ecutor is the one appointed by the decedent as embodied in the will. The administrator is the one appointed by the court if there in no will, or if there is a will but does not designate an e?ecutor, or e'en if there is an e?ecutor, the e?ecutor refuses to accept the trust or fails to put up a bond. These are the re@uirements: 7e is either not @ualified he fails to accept the trust or he fails to put up a bond so an administrator may be appointed
.
&hen he absconds, or
.
&hen becomes insane, or otherwise incapable or unsuitable to discharge the trust.
hen !ay a Special Ad!inistrator appointed/ & special administrator may be appointed when: 1. $here is delay in granting letters testamentary or of administration by any cause including appeal from the allowance or there is disallowance of the will. %. $he e0ecutor is a claimant of the estate he represents Rule C6 3ection C)
@ 9hen an e(ecutor or administrator dies, resigns or is removed, the remaining e(ecutor or administrator may administer the trust alone :3;-// the court grants letters to someone to act with him. $f there is no remaining e(ecutor or administrator, administration may be granted to any suitable person. The acts $e%ore reocation, resignation or re!oal are considered alid"
R7LE 95 INENTOR AND APPRAISAL PROISION 1OR S7PPORT O1 1A0IL
hat are the d&ties o% Special Ad!inistrator/ 7e shall ha'e the following duties: 1. ?e shall take possession and charge of goods, chattels, credits, and estate of the deceased, %. ?e shall preser'e the same for the e0ecutor or administrator afterwards appointed and for that purpose may commence and maintain suits as administrator, !. ?e may sell only such,
hat are the other d&ties o% e'ec&tors or ad!inistrators/ 1.
&hen ! months after his appointment, he shall return to the court a true in'entory and appraisal of all real and personal estate of the deceased which has come to his possession or knowledge. -n such appraisement, the court may order one or more inheritance ta0 appraisers to gi'e his or their assistance.
REMREV2 NOTES || BRONDIAL 2014
!.
$o gi'e allowance to widow and minor children, $ $ ER2*+?-4*R7.
(eld: ;B es" It has been held that in appeals arising from an incident in a special proceeding, a record on appeal is necessary, otherwise, the appeal faces a dismissal. It has liewise been held, howe'er, that in the interest of 6ustice, an appeal, brought without a record on appeal, may be reinstated under e?ceptional circumstances. Thus:
hat #ill $e done i% s&ch allo#ance has to $e gien $&t there isn+t eno&gh cash $y the estate/ This time, a sale can be done, say to pay ta?es.
??? ??? ??? It is noted, howe'er, that the @uestion presented in this case is one of first impression that the petitioner acted in honest, if mistaen, interpretation of the applicable law that the probate court itself belie'ed that the record on appeal was unnecessary and that the pri'ate respondent herself apparently thought so, too, for she did not mo'e to dismiss the appeal and instead impliedly recogni=ed its 'alidity by filing the appelleeOs brief.
): Bho are entitled to allowance during proceedingsA ".
legitim ate sur'i' ing spouse and
%.
children of the decedent (legitimate < illegitimate children!
)elate to &rt. "/, >amily 0ode: 0hildren, e'en if "- years of age are still entitled to support from the estate. Case
Read R&i@
R7LE 5 GENERAL POERS AND D7TIES O1 EHEC7TORS AND AD0INISTRATORS hat are the po#ers o% e'ec&tors or ad!inistrators o% the estate/
1.
$o ha'e access to and e0amine and take copies of books and papers relating to partnership in deceased partner.
2.
$o e0amine and make in'oices of the property belonging to partnership in case of deceased partner.
!.
$o maintain in tenantable repairs, houses and other structures and fences and to deli'er the same in such repair to the heirs or de'isees when directed so to do by the court.
4.
$o make impro'ements on the properties under administration with necessary court appro'al necessary repairs.
.
$o possess and manage the estate when necessary for> a. ;ayment of debts b.
case of a
e(cept for
;ayment of e0penses of administration.
hat are the restrictions on the Po#er o% an Ad!inistrator or E'ec&tor/ 1.
+annot acquire by purchase the property under administration.
%.
+annot borrow money without authority of the court.
!.
+annot speculate with fund under administration.
.
+annot lease the property for more than 1 year.
.
+annot continue the business of the deceased unless authori'ed by court.
6.
+annot profit by the increase or decrease in the 'alue of the property under administration. Rule C, 3ection %) R7LE 5 ACCO7NTA4ILIT AND CO0PENSATION O1 EHEC7TORS AND AD0INISTRATORS
0ase: Lacson s" (on" Reyes RTC o% CaiteB, and Atty" Ephrai! Ser6&ina, >ebruary %8, " , =" Sar!iento" 1acts: &tty. #phraim Ser@uina petitioned the respondent court for the probate of the last will and testament of 0armelita >arlin, the same ha'ing been allowed without opposition. Ser@uina filed a motion for attorney(s fees against petitioners, herein heirs of >arlin alleging that the heirs agreed to pay for his legal ser'ices rendered the sum worth 8-,. It was granted hence, Ser@uina mo'ed for its e?ecution. Petitioners filed a notice of appeal in appealing to such decision. 4ut trial court dismissed the same arguing that a record on appeal is re@uired and not a notice of appeal. Petitioner, on the other hand that it should be admitted as an appeal although it falls short of the re@uirements by the )ules and that the trial court gra'ely abused discretion in granting such motion for attorney2s fees being contrary to R&le , Section 8 o% the R&les o% Co&rt" 7owe'er, &tty Ser@uina opposed such allegation and opined that in collecting attorney+s %ees, he #as not acting as e'ec&tor o% 1arlin+s #ill $eca&se there #as no letters testa!entary that has $een iss&ed"
In 'iew of these circumstances, and in the interest of 6ustice, the 0ourt feels that the petitioner should be gi'en an opportunity to comply with the abo'e$discussed rules by submitting the re@uired record on appeal as a condition for the re'i'al of the appeal. The issue raised in his appeal may then be fully discussed and, in the light of the briefs already filed by the parties, resol'ed on the merits by the respondent court. In the instant case, the 0ourt notes the apparent impression by the parties at the outset, that a record on appeal was unnecessary, as e'idenced by: ("! the 'ery holding of the respondent court that QiRt is now easy to appeal as there is no more need for a record on appeal . . . QbRy merely filing a notice of appeal, the appellant can already institute his appeal . . . (%! in its order to amend notice of appeal, it did not re@uire the appellants to submit a record on appeal and (*! &tty. Ser@uina interposed no ob6ection to the appeal on that ground. 2B No" It is pointed out that an attorney who is concurrently an e?ecutor of a will is barred from reco'ering attorneyOs fees from the estate. The rule is therefore clear that an administrator or e?ecutor may be allowed fees for the necessary e?penses he has incurred as such, but he may not reco'er attorneyOs fees from the estate. 7is compensation is fi?ed by the rule but such a compensation is in the nature of e?ecutorOs or administratorOs commissions, and ne'er as attorneyOs fees. In one case, ; we held that a greater sum Qother than that established by the ruleR may be allowed Oin any special case, where the estate is large, and the settlement has been attended with great difficulty, and has re@uired a high degree of capacity on the part of the e?ecutor or administrator.O It is also left to the sound discretion of the court. Bith respect to attorneyOs fees, the rule, as we ha'e seen, disallows them. &ccordingly, to the e?tent that the trial court set aside the sum of P8+,. as and for r. Ser@uinaOs attorneyOs fees, to operate as a lien on the sub6ect properties, the trial 6udge must be said to ha'e gra'ely abused its discretion (apart from the fact that it ne'er ac@uired 6urisdiction, in the first place, to act on said r. Ser@uinaOs motion for attorneyOs fees!. The ne?t @uestion is @uite ob'ious: Bho shoulders attorneyOs feesA Be ha'e held that a lawyer of an administrator or e?ecutor may not charge the estate for his fees, but rather, his client.
1.
P/. a day for the time actually and necessarily employedD F)
%.
+ommission a. %$ first +, b. "$ +, but not *, c. "$ *, but not ", d. U$ ", 5reater sum may be allo wed if : a. $he estate is largeD
*.
REMREV2 NOTES || BRONDIAL 2014
hen #ill the e'ec&tor or ad!inistrator render acco&nt/ 5eneral rule: Bithin " year from the time of recei'ing letters testamentary or of administration.
hat is a de%iciency 3&dg!ent in this respect/
#?ception: &n e?tension of time is allowed by the court for presenting claims against or paying debts or for disposing of the estate, he shall render the same as the court may require until the estate is wholly settled .
It is a contingent 6udgment and therefore, must be filed with the probate court where the settlement of the deceased is pending, within the period fi?ed for the filing of claims.
ill an e'a!ination #ith respect to acco&nt on oath $e !andatorily done/
#?ample: Cou ha'e a millionaire uncle, and before he died he made a promise to gi'e you something when you complied with his condition. 7owe'er, before the happening of the condition, he died. The condition was for you to pass the bar.
3o. 4ecause it can be dispensed with when: 1.
o obection is made to the allowance of the account.
hat happens to contingent clai! then/
%.
-ts correctness is satisfactorily established by competent proof.
Cou can pursue the same by mere affida'it, showing the oral contract you had with your uncle, although the same is unenforceable, being not in writing.
@$he heirs, legatees, de'isees and creditors ha'e the same pri'ilege of being e0amined.
Is this a alid clai! against the estate/ Ces, because the money claim against the estate could be due, undue or e'en contingent.
R7LE >5 CLAI0S AGAINST ESTATE hat !ay $e clai!ed against the estate/
S&ppose they are not d&e yet, can they $e %iled against the estate/ Ces, since whether due, not yet due, or contingent, you can file against the estate.
". %.
Contractual money claims 1uneral e?penses
Stat&te o% Non5clai!s
*. /.
E?penses for the last illness and =udgments for money.
It is the period fi?ed by the )ule for the filing of the claims against the estate.
Situation: & was hospitali=ing at St. 1ue2s 7ospital and finally died lea'ing behind lots of hospital e?penses. (o# #ill St" L& applies, %alling &nder =7DG0ENT 1OR 0ONE" (o# #ill yo& disting&ish !oney clai!s &nder Section o% R&le > %ro! 3&dg!ent %or !oney/ >or money claims under )ule -8 Section +, it could be filed e'en if not due or contingent, much more those already due. 7owe'er, for 6udgment for money, it presupposes that the same has already been ad6udicated.
hat is Stat&te o% Non5Clai!s/
hen do yo& %ile it/ Cou can file it not more than "% months nor less than 8 months after the date of first publication . Ftherwise it is deemed wai'ed which is also nown as the STAT7TE O1 NON5 CLAI0S" Is there an e'ception to this strict period r&le/ Ces, with respect to 4#1&T#D 01&IS. These are claims not filed within the original period fi?ed by the court. 7owe'er, on application of a creditor who has failed to file his claim within the time pre'iously limited at &3C TI# 4#>F)# &3 F)D#) F> DIST)I4TIF3 IS #3T#)#D, the court may, for cause shown and on such terms as are e@uitable, allow such claim to be filed within a time 3FT e?ceeding " month from the order allo#ing $elated clai!s" This is also in the form of CO7NTERCLAI0" The obligation by reason of mortgage due from estate is distinguished between )ule -8, Section 9, in which the estate is a mortgagor while in )ule -9 Section +, the estate is a mortgagee. hat is the relationship $et#een a stat&te o% non5clai!s and li!itations/ & statute of non claims supersedes a statute of limitations. The statute of limitation is a period pro'ided for in the 0i'il 0ode where actions prescribe. &n ordinary prescripti'e period in a ci'il case is " years from accrual. & statute of limitation is not applicable if in conflict with statute of non$claim. This is precedence of statute of non$claims than statute of limitations. The statute of non$claims pre'ails o'er the statute of limitations. 7owe'er, the statute of non$ claims will not apply if there is no settlement proceedings. Illustration: r. & too the bus, Philippine )abbit, owned by r. 4 to 4aguio. 7e ne'er reached his destination because the bus fell o'er a ra'ine on Ganuary +, ". That is the date of the accrual of the cause of action (Gan. +, "!. Can 0r" A %ile a case against 0r" 4 on 0arch 2JJ;/ 3o, because the action is barred by the statute of limitations. S&ppose 0r" 4 died in ;??" ha t sho&ld A do/ >ile a claim against the estate within a period of not less than 8 mos. and not more than "%mos from the date of first publication. So, the presumption here is that there is a settlement of the estate of 4. Ftherwise, the statute of non$claims will not apply. S&ppose notice #as gien on 0arch ;, ;??" So yo& hae > !onths and it #as p&$lished 0arch 2J, yo& hae not less than > !onths %ro! 0arch 2J, nor !ore than &p to the ;? th o% 0arch ;??>" Can yo& %ile it in ;??/ 3o, because it is beyond the statute of non$claims. #'en if it is within the statute of limitations, you can no longer file it because it is beyond the statute of non$claims. That is the meaning of the Astatute of non"claims supersedes the statute of
REMREV2 NOTES || BRONDIAL 2014
Fn the other hand, if 4 died in " of December, you ha'e only ha'e up to Ganuary of % because the action has already prescribed, the ordinary action. The statute of non$claims pre'ails o'er the statute of limitations. 7owe'er, the statute of non$ claims will not apply if there is no settlement proceeding.
): 0an principle of estoppel be appliedA A: The S0 said the principle of estoppel will not apply because the basis which is the e?tra 6udicial partition is in fact 'oid, a 'oid act of declaration or omission of a party cannot be used as e'idence against the party. If the act is null and 'oid, estoppel will not arise therefrom.
hat is the ti!e5%ra!e in Section 2 o% R&le >/ The court is bound to gi'e notice to those who ha'e claims against the estate. The notice here is a sort of publication which is 3FT the same as publication in probate since in the latter the notice refers to 3FTI0# F> 7#&)I35.
): &re the heirs liableA A: The S0 said he did not e'en established the fact that you are the proper party in interest because nion 4an did not show any e'idence to pro'e that you are really the affiny.
(o# #ill yo& p&rs&e yo&r !oney clai!/ It is pro'ided for under Section 9 thereto, which a claim must be filed with the cler of court with affida'it supported by 'ouchers. The cler of court will now relay to e?ecutor or administrator who has duty to file his answer within "+ days whether he agrees or not. (o# #as this treated $y the co&rt/ If there is no opposition or with admission, pay +, to set aside the claim. Bhile pay "+, to the court and send the "+, the notice of hearing with respect to "+,.The court will then decide if 'alid or not. If there is contest by any other heir, payment of +, should be made but BI11 I3 3F B&C 0)#&T# P)#>#)#3TI&1 )I57T 3F) 1I#3 F3 #ST&T#. hat happens ne't/ The distribution will commence at the proper time, in due course of administration. This is so because distribution only arises when e'erything else is paid.
Settle!ent o% Estate Sec 9. ortgage debt due from estate Re!edy ".
0laim against the estate
-
after all the debts has been paid upon distribution
%.
>oreclo se the mortgage $ 6udicia l
-
deficiency 6udgement W by motion only in the same action
*.
#?tra6udicia l foreclo sure
-
you solely rely on his m ortgage, you don2t get any deficiency 6udgement
): Sec ? (o# to %ile a clai! STAT7TE O1 LI0ITATIONS: prescriptie period in the Ciil Code" >00 's Santibane=
A: In form of a simple application form ".
Deli 'er the claim to the cler of court
%.
Ser'e a copy on the e?ecutor or adminis trator
*.
if the claim is due, it must be supported by affida'it stating the amount due and the fact that there has been no effects. if the claim is not due or contingent, it must be accompanied by affida'it stating the particulars
): Bhat were the issues assigned as errors before the 0&A A: Issues ".
/. Bhether or not estoppel appli es
%.
Bhether or not the e?tra 6udicial partition bet among the heirs were 'alid
Sec ;J Ans#er o% e'ec&tor or ad!inistrator
*. /.
Bhether or not it is necessary for a partition to be appro'ed by the probate court Bhether or not the respondent could be held 6ointly liable with Santibane=.
". %.
#?ecutor may file answer within "+ days from the ser'ice of claim &nswer must set forth claims which decedent has against claimant or else it will be barred fore'er.
Testate Proceeding" R7LE 8 ACTIONS 4 AND AGAINST EHEC7TORS AND AD0INISTRATORS
Pro'isions on a holographic will. It wasn2t clearly stated in this case. The parties entered into an agreement.
Clai!s that s&rie )" A"
0an prospecti'e heirs whether under the testate or intestate enter into a partition o'er the properties belonging to the estateA There can be no partition until and unless the will is allowed or probated.
Clai!s that do not s&rie
)ule -9, Section " 2ctions that may be commenced directly against the e0ecutor and administrator ".
)eco'ery of realEpersonal property (or any interest therein!
A: &ccording to the S0 they may act to put an end in any indi'ision is considered and deemed to be a partition. There can be no partition in a testate proceeding before the will is allowed.
%. *.
): Bhat is the rationale behind thatA A: 4ecause the S0 said if it is allowed then you are di'esting the court of its 6urisdiction o'er the property partition. 4ec it
/.
)" Bas it really a partitionA
)ule -8, Section + &ctions that may be commenced against the estate of the deceased ".
#nforcement of lien thereon &ction to reco'er damages arising from tort
oney claim s, debts incurred by the deceased during his last illness arising from contract
%.
&ction for re'i'al of money 6u dgment may be filed against administrator to preempt prescription of 6udgment
*.
0laims for funeral e?penses or for the la st illness of the decedent Gudgment for money again st decedent
REMREV2 NOTES || BRONDIAL 2014
e hae li!ited clai!s against the estate to the %ollo#ing:
".
". 0ontractual money claims %. funeral e?penses
%.
*. e?penses for the last illness and /. 6 udgments for money.
*.
These are considered as contractual money claims under )ule -8. Bhen you go to )ule -9, you will note that you cannot file a claim against the estate if it is claimable under )ule -8. So contractual money claims, hindi. That is why in )ule -9, you are also limited to the following claims or actions: ". %.
)eco'ery of real or personal property )eco'ery of interest or lien therein
*.
Gudgment aris ing from in6uries
Bhen there is a deficiency of assets in the hands of an e?ecutor or administrator for the payment of debts and e?penses of administration, and The deceased in his lifetime had con'eyed real or personal property, or a right or interest therein, or an debt or credit, with intent to defraud his creditors or to a'oid any right, debt, or duty or 7ad so con'eyed such property, right, interest, debt or credit that by law the con'eyance would be 'oid as against his creditors, and the sub6ect of the attempted con'eyance would be liable to attachment by any of them in his lifetime,
The e0ecutor or administrator may commence and prosecute to final udgment an action for the reco'ery of such property, right, interest, debt, or credit for the benefit of the creditors but he shall not be bound to commence the action unless on application of the creditors of the deceased, not unless the creditors maing the application pay such part of the costs and e?penses, or gi'e security therefor to the e?ecutor or administrator, as the court deems e@uitable. ith respect to the a$oe scenario, #hen !ay creditor $ring an action/
hen can the heirs s&e on $ehal% o% the estate o% the deceased/ It is when an order of the court assigning such lands to such heir or de'isee or until the time allowed for paying debts has e?pired although an e?ecutor or administrator is appointed and assigned the trust. hen can an e'ec&tor or ad!inistrator co!po&nd #ith the de$tor o% the deceased/ &ithin the appro'al of the court , an e?ecutor or administrator may compound with the debtor of the deceased for a debt due, and may gi'e a discharge of such debt on recei'ing a ust di'idend of the estate of the debtor. ): In actions by and against e?ecutors and administrators, where will the e?ecutor or administrator get his money to satisfy your prayer in your actionA 7indi ba from the estateA So why not against the estate, bait against the e?ecutor or administratorA A: )ule -8 is not an action… tapos na dyan yung action, it is already through. In -9, it is a separate and distinct action, so that if it is a complaint, you always file it against the e?ecutor or administrator. Pero dito, tapos na yan. 7ence, dahil tapos na, it is urgent… urgency of the sub6ect matter… so the presumption in -8, that there must an estate proceeding, whether testate or intestate… without that , you cannot file any claim. Suppose wala, ano gagawin moA Iinitiate the testate or intestate proceeding so that you file a claim. It is not an independent action here. 4ut in -9, it is an independent action. eron bang testate or intestate proceedingA 3ot necessarily. Cou might say, bait e?ecutor, administratorA Naya nga Kor2 because when you say e?ecutor, meron yan. Nung walang e?ecutor, administrato r. Cou mean to say that there can be no administrator without an estate proceedingA 3o. There can be an administrator e'en if there is no estate proceeding because you can e'en undertae e?tra6udicial settlement of the estate. In e?tra6udicial settlement there can be an agreement by and between the parties as to the administrator of the estate. The estate does not ha'e a separate and distinct personality. It is only an entity authori=ed by law in special cases. hat #ill the co&rt do #hen an e'ec&tor or ad!inistrator, heir or other interested in the estate o% the deceased co!plains o% a person $eing s&spected o% haing concealed, e!$e@@led, or coneyed a#ay any o% the property o% the deceased, or #hen s&ch person is in possession or has
It is when there is such a deficiency of assets , and the deceased in his lifetime had made or attempted such a con'eyance , as is stated in the last preceding section, and the e0ecutor or administrator has not commenced the action therein pro'ided for , any creditor of the estate may, with the permission of the court, commence and prosecute to final 6udgment, in the name of the e?ecutor or administrator, a lie action for the reco'ery of the sub6ect of the con'eyance or attempted con'eyance for the benefit of the creditors. In relation to the a$oe prosec&tion $y creditor, are there any re6&ire!ents #ith that respect/ Ces. The following must be complied with by the creditor: ".
The creditor must file in a court a bond e?ecuted to the e?ecutor or administrator, in an amount appro'ed by the 6udge,
%.
This bond must be conditioned to indemnify the e0ecutor or administrator against the costs and e0penses incurred by reason of such action.
*.
Such creditor shall ha'e a lien upon any udgment reco'ered by him in the action for such costs and other e0penses incurred therein as the court deems e@uitable.
/.
Bhere the con'eyance or attempted con'eyance had been made by the deceased in his lifetime in fa'or of the e?ecutor or administrator, the action which a creditor may bring shall be in the name of all the creditors, and permission of the court and filing of bond as abo'e prescribed, are not necessary"
hat a$o&t i% there is co!plaint $y the e'ec&tor or ad!inistrator against person entr&sted #ith the estate to $e co!pelled in rendering acco&nt %or the estate, #hat #ill the action o% the co&rt #ith that respect/ The court may cite a person entrusted by an e0ecutor or administrator with any part of the estate of the deceased to appear before it, and may require such person to render a full account, on oath , of the money, goods, chattels, bonds, account, or other papers belonging to such estate as came to his possession in trust for such e?ecutor or administrator, and of his proceedings thereon and if the person so cited re%&ses to appear to render s&ch acco&nt, the court may punish him for contempt as ha'ing disobeyed a lawful order of the court. In actions $y and against e'ec&tors and ad!inistrators, #here #ill the e'ec&tor or ad!inistrator get his !oney to satis%y yo&r prayer in yo&r action/ Is it not %ro! the estate also/ (ence, #hy not !a
The court may cite such suspected person to appear before it any may e0amine him on oath on the matter of such complaint and if the person so cited refuses to appear, or to answer on such e?amination or such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court. The interrogatories put any such person, and his answers thereto, shall be in writing and shall be filed in the clerOs office.
The reason is this, since )ule -8 is not an action, it presupposes that the action was already done in this )ule. 7owe'er, in Rule C, it is a separate and distinct action , so that if it is a complaint, you always file it against the e?ecutor or administrator. )ule -9 is but an independent action. It is not e'en necessary here if there is testate or intestate proceeding. 7ence, #hy -$y e'ec&tor OR ad!inistrator./
hat i% that person in the a$oe scenario, e!$e@@led or alienates any part o% the estate $e%ore letters are iss&ed, #hat #ill $e his lia$ility/
o& !ean to say that there can $e no ad!inistrator #itho&t an estate proceeding/ 3o. There can be an administrator e'en if there is no estate proceeding because you can e'en undertae e?tra6udicial settlement of the estate. In e?tra6udicial settlement, there can be an agreement by and between the parties as to the administrator of the estate. The estate does not ha'e a separate and distinct personality. It is only an entity authori:ed by law in special cases.
Such person shall be liable to an action in fa'or of the e?ecutor or administrator of the estate for double the 'alue of the property sold, embe==led, or alienated, to be reco'ered for the benefit of such estate.
REMREV2 NOTES || BRONDIAL 2014
&s a general rule, the estate cannot sue and be sued. It can only be sued in certain instances. It cannot be sued because under Sec.", )ule * (Bho may be parties!, it is only an entity authori=ed by law. That is why you file against the e?ecutor or administrator. )emember that an e?ecutor or administrator is a natural person. Iba yun sa 5uardian haA & guardian can be a 6uridical person.. only guardianship o'er the property of the ward. In guardianship o'er the ward, the guardian cannot be an artificial being or corporation. ): 0ompare Sec. 9, )ule -8 ( ortgage debt due from estate! with Sec. +, )ule -9 (ortgage due estate may be foreclosed!. A: The parties under Sec. 9, )ule -8 are the estate of the decedent and the creditor. The creditors may ha'e affirmati'e remedies as to their claims against the decedent such as going after his estate. The estate is the debtor, the mortgagor (Kmortgage due from the estate2!. &s compared to Sec. +, )ule -9, the estate is the mortgagee. ): Is the estate, under Sec. +, )ule -9 allowed the alternati'e remedies in Sec 9, )ule -8A A: 3F. 7e is only allowed one remedy which is foreclosure. &fter all these claims ha'e been settled, all debts ha'e been paid, you go now to distribution. This is the last stage. 4ut in the distribution of the estate, what )ule should be followedA >irst, before distribution, there shall be payment of debts. ): Bhat are these debtsA There are only + specific inds of debts. A: ". %.
Debts of the decedent >uneral e?penses
*.
#?penses for adminis tratio n
/.
&llowance for the wid ow and
+.
Ta?es.
): nder the rules on preference of credit, ta?es are gi'en priority. Is there an e?ceptionA Bhat did you 1abor 1aw teacher teach you about thatA A: P34 's. 31)0 case (arch "!: In case of li@uidation of the assets of the corporation, e'en ta?es gi'e way to unpaid salaries and wages. 4ut in all other instances, palaging ang gobyerno ang uunahin. Sabi nga sa mga )e'iewers, pag wala a na daw maisasagot sa @uestion sa ta?ation, ta?ation is the lifeblood of the go'ernment. Pag hindi mo mabayaran a'ail of )ule -: Sales, ortgages, and other #ncumbrances of the Property of the Deceased. The fundamental reason for sales, mortgages, and other encumbrances is to pay off debts. ): The estate is worth one million (P"!. &fter payment of debts, all that had been paid amounted to P+T. 7ow much is left for distributionA A: Fnly P+T. ): If there are + compulsory heirs, de'isees and legatees, &, 4, 0, D, #, and under the will, & should recei'e P+T 4$ P"T 0$ P"T D and #$ P+T each and what remains is only P+T, how will you distribute the estateA A: Distribute the estate by ratio and proportion. ): Suppose the asset was P" gross 'alue and the obligation was only P". Cou ha'e PT left but the will says to distribute only P+T P"T P"T and P+T to the last two, may sobra a, (that goes to the pocet of the lawyerA! it should be distributed in accordance with intestate succession but also pro rata. A: )emember we are taling here of the remainder, wala nang babayaran. Be ha'e also studied the )ules on contingent claims, under Sec. /, )ule 9/ ( 1iability of Distributees and #tate!, the two$year lien. ): 0an the estate be distributed e'en before payment of debtsA
The remedy is to gi'e a bond. If the asset to be distributed is @uite important, such as real property, then you gi'e the asset.
REMREV2 NOTES || BRONDIAL 2014
R7LE 5 PA0ENT O1 T(E DE4TS O1 T(E ESTATE hen sho&ld e'ec&tor or ad!inistrator pay de$ts o% the estate/ It is after hearing all the money claims against the estate, and after ascertaining the amount of such claims, it appears that there are sufficient assets to pay the debts. 4efore the e?piration of the time limited for the payment of the debts, the court shall order the payment thereof.
*.
If the insol'ency pertains to a nonresident who has properties in the Philippines, the same shall be so disposed of that his creditors here and elsewhere may recei'e each an equal share, in proportion to their respecti'e credits. (P)F$)&T&!
/.
If the insol'ency pertains to a resident person in the Philippines but the claims has duly pro'ed outside, the court shall recei'e a certified list of such claims , when perfected in such country, and add the same to the list of claims pro'ed against the deceased person in the Philippines so that a 6ust distribution of the whole estate may be made e@ually among all its creditors according to their respecti'e claims. a.
hat i% an appeal #as d&ly ta
V 4ut the benefit of this and the preceding sections shall not $e e'tended to the creditors in another co&ntry if the property of such deceased person there found is not e@ually apportioned to the creditors residing in the Philippines and the other creditor, according to their respecti'e claims.
hat is the r&le #ith respect to contingent clai! $eco!ing A4SOL7TE in 2 years allo#ed and paid/ ".
hat i% the testator !a
If such contingent claim becomes absolute and is presented to the court, or to the e?ecutor or administrator, within two (%! years from the time limited for other creditors to present their claims: a.
It may be allowed by the court if not disputed by the e?ecutor or administrator and,
b.
If disputed, it may be pro'ed and allowed or disallowed by the court as the facts may warrant.
c.
If the conti ngent claim is all owed, the creditor shall recei'e payment to the same e0tent as the other creditors if the estate retained by the e0ecutor or administrator is sufficient.
4ut if the claim is not so presented, after ha'ing become absolute, within said two (%! years, and allowed, the assets retained in the hands of the e?ecutor or administrator, not e0hausted in the payment of claims , shall be distributed by the order of the court to the persons entitled to the same a.
4ut the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distri$&tees to reco'er the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they ha'e respecti'ely recei'ed from the property of the deceased.
hat is the pre%erred part o% estate o% the deceased to $e chargea$le %or de$ts o% the deceased/ It is the personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and e?penses meaning, the decedent2s >)## PF)TIF3 shall first be chargeable for debts of the estate.
hat i% a%ter the %irst distri$&tion o% assets, the #hole o% the de$ts are not paid and i% the #hole assets are not yet distri$&ted or a%ter#ards other assets co!e to the hands o% the e'ec&tor or ad!inistrator, #hat #ill the co&rt do/ The court may from time to time make further orders for the distributions of assets.
hat i% s&ch %ree portion is not s&%%icient %or pay!ent o% de$ts or i% its sale #o&ld redo&nd to the detri!ent o% the participants o% the estate, #hat #ill $e the re!edy there%ro!/ 3ow, the whole of the real estate not dispose of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwiseencumbered for that purpose by the e?ecutor or administrator, after obtaining the authority of the court therefor. hat i% this #ill not $e s&%%icient, #hat is then the re!edy to pay all the de$ts o% the estate/ &ny deficiency shall be met by contributions in accordance with the respecti'e contributi'e shares of the de'isees, legatees or heirs in possession of portions of the estate 4#>F)# T7# D#4TS &3D #HP#3S#S 7&;# 4##3 S#TT1#D &3D P&ID and ha'e become liable to contribute for the payment of such debts and e?penses. The court may issue e?ecution if the case may re@uire. In R&le >, #e co!e to
7owe'er, if there are no assets sufficient to pay the credits of any one class of creditors after paying the credits entitled to preference o'er it, each creditor within such class shall be paid a di'idend in proportion to his claim. V7owe'er, no creditor of any one class shall recei'e any payment until those of the preceding class are paid.
hat is the $asis o% pay!ent to creditors/ It must be in accordance with the terms of such order by the court for such payment of debts. Is the ti!e %or pay!ent o% de$ts and legacies %i'ed, or s&$3ect to e'tension, %or ho# long, i% any/ ".
If the payment of debts is done personally by the e?ecutor or administrator: a.
%.
Fn granting letters testamentary or administration, the court shall allow to the e?ecutor or administrator a time for disposing of the estate and paying the debts and legacies of the deceased, which shall not, in the first instance, e?ceed one ("! year but the court may, on application of the e0ecutor or administrator and after hearing on such notice of the time and place therefor gi'en to all persons interested as it shall direct, e?tend the time as the circumstances of the estate re@uire not e?ceeding si? (8! months for a single e?tension not so that the whole period allowed to the original e?ecutor or administrator shall e?ceed two (%! years. If the e?ecutor or administrator dies, and the new administrator of the same estate is appointed: a. &n application is still re@uired and notice to be gi'en of the time and place for hearing such application so that the court may e0tend the time allowed for the payment of the debts or legacies beyond the time allowed to the original e0ecutor or administrator , not e?ceeding si? (8! months at a time and not e?ceeding si? (8! months beyond the time which the court might ha'e allowed to such original e?ecutor or administrator
REMREV2 NOTES || BRONDIAL 2014
R7LE ?5 SALES, 0ORTGAGES, AND OT(ER ENC704RANCES O1 PROPERT O1 T(E DECEDENT The fundamental reason for sales, mortgages, and other encumbrances is to pay off debts. hen #ill sale o% personal estate o% the deceased $e allo#ed/ pon the application of the e?ecutor or administrator, and on written notice to the heirs and other persons interested, the court may order the whole or a part of the personal estate to be sold, if it appears necessary for the purpose of: ".
paying debts,
%.
e?penses of administration, or
*.
legacies, or
/.
preser'ation of the property.
hen !ay the co&rt a&thori@e sale, mortgage or other encumbrance of )#& 1TC o% the estate %or pay!ent o% de$ts and legacies tho&gh PERSONALT is not yet e'ha&sted/
Can o&r co&rt also a&thori@e sale, !ortgage or other enc&!$rance o% realty ac6&ired on e'ec&tion or %oreclos&re/ Ces. The court may authori:e an e0ecutor or administrator to sell mortgage, or otherwise encumber real estate acquired by him on e0ecution or foreclosure sale , under the same cicumstances and under the same regulations as prescribed in this rule for the sale, mortgage, or other encumbrance of other real estate. Reg&lations %or granting a&thority to sell, !ortgage or other#ise enc&!$er estate" (a! The e?ecutor or administrator shall file a written petition setting forth the debts due from the deceased, the e?penses of administration, the legacies, the 'alue of the personal estate, the situation of the estate to be sold, mortgaged, or otherwise encumbered, and such other facts as show that the sale, mortgage, or other encumbrance is necessary or beneficial. (b! The court shall thereupon fi? a time and place for hearing such petition, and cause notice stating the nature of the petition, the reasons for the same, and the time and place of hearing, to be gi'en personally or by mail to the persons interested, and may cause such further notice to be gi'en, by publication or otherwise, as it shall deem proper
".
Bhen the personal estate of the deceased is not sufficient to pay the debts, e?penses of administration, and legacies, or
%.
Bhere the sale of such personal estate may in6ure the business or other interests of those interested in the estate, and
*.
Bhere a testator has not otherwise made sufficient pro'ision for the payment of such debts, e?penses, and legacies,
(c! If the court re@uires it, the e?ecutor or administrator shall gi'e an additional bond, in such sum as the court directs, conditioned that such e?ecutor or administrator will account for the proceeds of the sale, mortgage, or other encumbrance (d! If the re@uirements in the preceding subdi'isions of this section ha'e been complied with, the court, by order stating such compliance, may authori=e the e?ecutor or administrator to sell, mortgage, or otherwise encumber, in proper cases, such part of the estate as is deemed necessary, and in case of sale the court may authori=e it to be public or pri'ate, as would be most beneficial to all parties concerned. The e?ecutor or administrator shall be furnished with a certified copy of such order
The court, on the application of the e0ecutor or administrator and on written notice of the heirs, de'isees, and legatees residing in the ;hilippines , may:
(e! If the estate is to be sold at auction, the mode of gi'ing notice of the time and place of the sale shall be go'erned by the pro'isions concerning notice of e?ecution sale
Bhen any of the following appears:
a.
&uthori=e the e?ecutor or administrator to sell, mortgage, or otherwise encumber so much as may be necessary of the real estate, in lieu of personal estate, for the purpose of paying such debts, e?penses, and legacies,
b.
If it clearly appears that such sale, mortgage, or encumbrance would be beneficial to the persons interested and
c.
If a part cannot be sold, mortgaged, or otherwise encumbered without inury to those interested in the remainder , the authority may be for the sale, mortgage, or other encumbrance of the #hole o% s&c h real estate, or so much thereof as is necessary or beneficial under the circumstances.
hat i% the person in H, interested in the estate o% (, #anted to preent s&ch sale, !ortgage or enc&!$rance, can he do so/ Ces. If that person does: ". %.
5i'es a bond, in a sum to be fi?ed by the court, conditioned to pay the debts, e?penses of administration, and legacies within such time as the court directs and Such bond shall be for the security of the creditors, as well as of the e?ecutor or administrator, and may be prosecuted for the benefit of either.
hen !ay co&rt a&thori@e the sale o% estate as $ene%icial to interested persons/ It is authori=ed upon application of the e0ecutor or administrator and on written notice to the heirs, de'isees, and legatees who are interested in the estate to be sold , authori=e the e?ecutor or administrator to sell the whole or a part of said estate, although not necessary to pay debts, legacies, or e?penses of administration. 7owe'er, such authority shall not be granted if inconsistent with the pro'isions of a will. In case of such sale, the proceeds shall be assigned to the persons entitled to the estate in the proper proportions.
(f! There shall be recorded in the registry of deeds of the pro'ince in which the real estate thus sold, mortgage, or otherwise encumbered is situated, a certified copy of the order of the court, together with the deed of the e?ecutor or administrator for such real estate, which shall be as 'alid as if the deed had been e?ecuted by the deceased in his lifetime. hat i% the deceased d&ring his li%eti!e entered into a contract, $inding in la#, #ith respect to a deed o% real property or an interest therein, #hat #ill the co&rt do/ Fn application for that purpose, the court may authori=e the e?ecutor or administrator to con'ey such property according to such contract, or with such modifications as are agreed upon by the parties and appro'ed by the court. If the contract is to con'ey real property to the e?ecutor or administrator, the clerk of court shall e0ecute the deed. The deed e?ecuted by such e?ecutor, administrator, or cler of court shall be as affectual to con'ey the property as if e?ecuted by the deceased in his lifetime. 7owe'er, no such con'eyance shall be authori=ed until notice of the application for that purpose has been gi'en personally or by mail to all persons interested, and such further notice has been gi'en, by publication or otherwise , as the court deems proper nor if the assets in the hands of the e0ecutor or administrator will thereby be reduced so as to pre'ent a creditor from recei'ing his full debt or diminish his di'idend . hat i% the deceased (, had held real property in tr&st %or another person, #hat #ill the co&rt do #ith the sa!e/ The court may after notice gi'en as the same in the abo'e scenario, authori=e the e?ecutor or administrator to deed such property to the person, or his e?ecutor or administrator, for whose use and benefit it was so held. &lso, the court may order the e?ecution of such trust, whether created by deed or by law.
R7LE ?J5 DISTRI47TION AND PARTITION O1 T(E ESTATE
hat i% there is an e'isting de$t o% s&ch deceased to other co&ntries, #hat #ill o&r co&rt do/
&fter all these claims ha'e been settled, all debts ha'e been paid, you go now to distribution. This is the last stage.
The court here may authori=e the e?ecutor or administrator to sell the personal estate or to sell, mortgage, or otherwise encumber the real estate for the payment of debts or legacies in the other country, in same manner as for the payment of
4&t in the distri$&tion o% the estate, #hat R&le sho&ld $e %ollo#ed/
REMREV2 NOTES || BRONDIAL 2014
hat are these de$ts/ There are only + specific inds of debts. ". %. *. /. +.
Debts of the decedent >uneral e?penses #?penses for administration &llo wance for the widow and Ta?es.
hen #ill the ORDER 1OR DISTRI47TION o% resid&e !ade/ Bhen all of the following ha'e been paid and done: ". %.
the debts, funeral charges, and e?penses of administration, the allo wance to the widow,
*.
and inheritance ta?, if any, chargeable to the estate in accordance with law,
The court, on the application of the e0ecutor or administrator, or of a person interested in the estate, and after hearing upon notice , shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and reco'er their respecti'e shares from the e?ecutor or administrator, or any other person ha'ing the same in his possession. hat i% there is a controersy as to #ho are la#%&l o#ners o% the sharesFresid&es, #hat #ill $e done/ The contro'ersy shall be heard and decided as in ordinary cases. &lso, @uestions as to ad'ancement made or alleged to ha'e been made by the deceased to any heir may be heard and determined by the court and the final order of the court shall be binding on the persons raising the @uestions and on the heir. Is the a$oe proced&re al#ays a$sol&te as to the pay!ent %irst o% all the e'pensesFde$ts o% the deceased/ 3o. Distribution shall be allowed if the distributees, or any of them, gi'e a bond, in a sum to be fi?ed by the court, conditioned for the payment of said obligations within such time as the court directs.
S&ppose the asset #as P;J0 gross al&e and the o$ligation #as only P;0" o& hae P?JJT le%t $&t the #ill says to distri$&te only PJJT P;JJT P;JJT and PJT to the last t#o, #here #ill that e'cess go/ It should be distributed in accordance with intestate succession but also pro rata. )emember we are taling here of the remainder, hence, no more debts to be paid. Be ha'e also studied the )ules on contingent claims, under Sec. /, )ule 9/ (1iability of Distributees and #state!, and the two$year lien.
R7LE ?; ESC(EAT Is another form of Gudicial Settlement, #scheat tells us that if a person dies without a will, without an heir, and no debts, then the Fffice of the Solicitor 5 eneral will file, under the directi'e of the President of the Philippines, will file an # scheat Proceeding. 4ut if it happens that during the pendency of the proceeding, a will pops up, then the proceeding is discontinued. If an heir pops up, then the proceeding may be suspended and establish your right…otherwise, after the hearing, the property will go to the go'ernment. This escheat proceeding is founded on the theory that all lands belong to the State…the Regalian Doctrine that you studied under 1TD (1and Titles < Deeds!… all lands belong to the State and he who claims otherwise has the burden of proof so after the escheat proceedings, the property belonging to the estate will go to the city or municipality where it is found. So if the proceeding is in anila, but the property escheated is in 0alamba, the property escheated located in 0alamba will go to the 0ity of 0alamba and not to the 0ity of anila. The same thing with personal property…where it may be found and the )ule is 'ery specific that the property will be spent for charitable purposes, for educational purposes, so on and so forth. So that is )ule ". nder )ule ", Sec.+ is another form of escheat because that was gi'en in the 4&) + years ago (sa dami daming pwedeng ibigay sa Special Proceedings, yun lang ang binigay!. This speas of REERSION. In other words, the property was ac@uired by an indi'idual in 'iolation of the 0onstitution. nder the 0onstitution, any person, e'en foreigners who were former >ilipinos, can now ac@uire property in the Philippines and that was gi'en more strength because of the Dual 0iti=enship 1aw.
hen !ay e'ec&tor or ad!inistrator pay %or the e'penses o% partition/ If at the time of distribution the e0ecutor or administrator has retained sufficient effects in his hands which may lawfully be applied for the e0penses of partition of the properties distributed , such e?penses of partition may be paid by such e?ecutor or administrator when it appears equitable to the court and not inconsistent with the intention of the testator . Ftherwise, they shall be paid by the parties in proportion to their respecti'e shares or interest in the premises, and the apportionment shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share, the court may issue an e?ecution in the name of the e?ecutor or administrator against the party not paying the sum assessed.
): Bhich court has 6urisdiction o'er Petitions for Settlement of #stateA A: nder )& 98", inferior courts now ha'e 6urisdiction o'er settlement of estate, whether testate or intestate. So it is not under the pro'ision which speas of actions in'ol'ing title to or any interest in property but it is a direct pro'ision of the law that settlement of estate, whether testate or intestate, may be taen cogni=ance of by inferior courts, depending on the gross 'alue (hindi assessed!. )emember, there is another pro'ision under 4P "%, the basis of which is the assessed 'alueJ…dito, gross 'alue of the estate and the location is determinati'e somehow of 6urisdiction because if it is outside etro anila, less that P*T and within etro anila, P/T…so suppletory character lang yun.
here #ill the recording o% these %inal orders and 3&dg!ents o% the co&rt relating to the real estate or the partition are done/
The old boos spea of 0ourts of >irst Instance ()T0!, e?clusi'ely…hindi na yun.
0ertified copies of final orders and 6udgments of the court relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the pro'ince where the property is situated. 7nder the r&les on pre%erence o% credit, ta'es are gien priority" Is there an e'ception/ hat did yo&r La$or La# teacher teach yo& a$o&t that/ nder ;G 's. 4R+ case (arch "!: In case of li@uidation of the assets of the corporation, e'en ta?es gi'e way to unpaid salaries and wages. 4ut in all other instances, it2s always the ta?es that will pre'ail. The estate is #orth one !illion P;0B" A%ter pay!ent o% de$ts, all that had $een paid a!o&nted to PJJT" (o# !&ch is le%t %or distri$&tion/ Fnly P+T. I% there are co!p&lsory heirs, deisees and legatees, A, 4, C, D, E, and &nder the #ill, A sho&ld receie PJJT
REMREV2 NOTES || BRONDIAL 2014
R7LE ?2 TO ?8: G7ARDIANS AND G7ARDIANS(IP adali lang itong guardianship. Cou now whyA 4ecause the )ules are practically the same. The fundamental difference is that in guardianship, the sub6ect is still ali'e. In settlement of estate, the sub6ect matter is already dead. Three inds o% G&ardians: ".
Gudicial guardian W that appointed by the court in a 6udicial proceeding for legal guardianship
%.
1egal guardianX guardian by operation of law not 6ust appointed by any court. (e?.: parents of minor children!
*.
5uardian ad litem$ that which is appointed by the court not necessarily in a guardianship proceeding, because this guardian ad litem is only on a temporary basis with a specific duty to perform.
): Bhich court has 6urisdiction o'er a petition for guardianshipA A: #?clusi'ely and originally cogni=able by the >amily 0ourt ()T0 specifically designated as a >amily 0ourt because of )& -*8 !. There is no inferior court here. 7owe'er, in settlement of estate, 6urisdiction may be lodged in inferior courts depending on the gross 'alue of the estate. The en&e is the residence o% the #ard. I% the #ard has no residence and the g&ardianship application is oer the property o% the #ard, the en&e is #here the property is sit&atedF located" Tae note that the 'enue here is the residence of the ward as distinguished from the 'enue in adoption, which is the residence of the adopter. 4aitA 4ecause in adoption, the result is that the adoptee will become the child of the adopter for all legal intents and purposes. 4ut here, it is the guardian that goes to the ward as the relation here is only of a temporary character. o& %ile a g&ardianship proceeding only on 2 gro&nds: ".
ino ri ty and
%.
Incompetency.
The term incompetentJ here is different from that in settlement of estate. 7ere, incompetentJ refers to: Sec. %. eaning of the word incompetentJ. Incompetent includes: ".
Those suffering from the penalty of ci'il interdiction (a penalty attached to con'iction!
%.
7ospitali =ed lepers
*.
Prodigals (one who is a spendthrift wastes money or property on things without reser'ing any for himself and before you now it, he is not only a prodigal son but also a grasa man.!
/. +.
Deaf and Dumb unable to read and writ e Those of unsound mind although they ha'e lucid inter'als
8.
Persons not of unsound mind but by reason of age, disease, wea mind, and other similar causes, cannot, without outside aid, tae care of themsel'es or manage their property.
A !inor, &nder the age o% ;, can $e the s&$3ect o% g&ardianship" Case o% Eangelista: The petition for guardianship was granted by the court and 0ani=a was appointed as the guardian of #'angelista. &s a guardian, remember the rights, the guardian can sue and be sued, can collect debts, can manage the properties of the ward. So one of his actions here was to as the #stradas to 'acate the premises owned by the ward. Gudgment was rendered in fa'or of plaintiff, but on appeal, it was re'ersed and on appeal again from the order of re'ersal, it was sustained. That is why it went up to the Supreme 0ourt. 4ut pending the appeal with the 0&, the ward died. This is a case for e6ectment. The issue here is that considering that there is no more guardianship because death terminates
time and more importantly, they found from the record that 0ani=a was one of the heirs of the ward. 7ence, there is still a party$in$interest e'en if there is no settlement of the estate. &ng importante ay pag guardian a tapos heir a din, there is no need for the settlement of the estate. NOTE: )emember that you find that also in Sec. "8 of )ule *: Substitution of Parties (without a need of appointing an administrator or e?ecutor of the estate in the substitution of parties.J!. That is the doctrine laid down in this case. ): Bho can initiate a petition for guardianshipA A: &nybody who has interest in the person of or property of the ward. If you cannot establish any interest in the person of or in the property of the ward, you cannot file a petition for guardianship. 4¥a s" Ledes!a: In this case, they were able to establish interest. They were both single and they were li'ing together. Cou ha'e to establish interest. The )ule says, friends, relati'es, or any person who has interest. ): Bhat is the procedureA A: >ile a petition with a court of competent 6urisdiction in the proper 'enue. &nd the court will issue an order setting the case for hearing. If there are oppositors, then they can file their opposition. )emember, this is a special proceeding and 6urisdiction is always ac@uired through publication. &fter trial, there will be decision either allowing or disallowing guardianship. In other word, appointing a guardian or not appointing a guardian. The guardian now enters into the guardianship after he has filed the necessary bond. The duties and responsibilities of a guardian are similar to that of an e?ecutor or administrator . ): 0an he sell the properties of his wardA A: Ces. #'en without permission from the court if the property in'ol'ed is personal property. 4ut, if it is real property, 6ust lie, an e?ecutor or administrator, he has to get permission from the court. Fnly with the permission of the court will the sale of real property be considered a 'alid sale. It is not only permission of the court which is re@uired, but also notice to all interested parties. In guardianship, the absence of notice, e'en with permission of the court, still renders the sale 'oid. ): In what instances may guardianship be terminatedA A: Death also terminates guardianship, but the general rule is that if the ground for the appointment of the guardian ceases, then guardianship ceases as well.. If the minor is already of age (remember, e'en the minor himself can as for guardianship!. This is an e?ception regarding lac of a minor2s legal personality to sue. If the ground is based on incompetency and it is established that the ward is already competent, or that he was insane, but now, he is no longer insane a petition for termination of guardianship may be filed. ): Should the legal guardian file guardianship proceedings o'er the person and property of their minor childrenA A: Ces if the property of the war, which is their own children, is worth more than P+T. If they sell the property of their ward, e'en if they are the legal guardians, the sale of the property is 'oid. ): Distinction between a guardian and a trustee A: The distinction between a guardian and a trustee is that the latter has the legal title while the guardian has no legal title of the property. So that the trustee can negotiate and encumber the property under trust. <hough the same trustee may either be a trustee and a beneficiary at the same time. & trust relationship can either be e?press if there is a trust agreement between parties or implied if it is by operation of law. #?amples of trust by operation of law is when parents die without a will and then some children are still minors, whoe'er is the guardian of the minor holds the property for and in behalf of the minors in trust. So that you will note that the guardian here, being the trustee, may not be a party to a written trust agreement but he cannot dispose the minorOs property without consent of the court for the reason that he is only in trust for the ces @ui trust. #'en in the absence of a written contract,
REMREV2 NOTES || BRONDIAL 2014
R7LES ?? TO ;JJ: ADOPTION M C7STOD O1 0INORS 4acground of adoption: The rule on adoption has been amended se'eral times and e'en the rules on procedure, which you find in and " are no longer applicable. They ha'e been repealed e?pressly. &s early as the mid$9s when the 0hild and Couth Belfare 0ode (PD 8*! was enacted, it already amended the rules on adoption. PD 8* was also amended by the >amily 0ode. 4ut all these are no longer applicable in toto because of the new laws on adoption which should be the sub6ect matter of todayOs section. The laws applicable now is not e'en the 0i'il 0ode per se, but rather it should be )& -+8%, the Domestic &doption 1aw of "- and the Inter 0ountry &doption 1aw of "+ ()& -/*!. These are the substanti'e law go'erning adoption. Fur concern is the rule on adoption. A0 J25>5J2SC, dated =&ly 2JJ2, is the ne# r&le on Adoption" ): Bhat is adoptionA A: It is a 6udicial proceeding whereby the relationship of paternity and filiation is established. &S simple as that. &ccording to a noted professor, when a decree of adoption is final and e?ecutory, there is the total and absolute cut of any legal relationship between the natural parent and the child. nder the new rules, the adopter cannot rescind the adoption but only disinherit the adopted child. &n adopted child has all the rights of a legitimate child. ): Bho may be adopted onlyA
%. *.
&ny alien 5uardian, with respect to the ward. &nd remember, there is no @ualification as to the citi=enship of the guardian. The only @ualification is that the guardianship must ha'e ended AND his accountability as a guardian has been completed. Cun lang ang @ualification.
): 3ow letOs go to the >ilipino, what are the @ualificationsA A: ". of le gal age %. he must possess full ci'il capacity and legal rights *. of good moral character /. has not been con'icted of any crime in'ol'ing moral turpitude +. emotionally and psychologically capable of caring or children 8. financially capable or economically capable 9. at least "8 years older than the adoptee. NOTE: Bhen one is of legal age, a minor cannot adopt. 4ecause he must be capable of un@uestionable demonstration. nder the )ules on #'idence, the court can either tae 6udicial notice of that because he is capable of un@uestionable demonstration. ): Bhat does possession of full ci'il capacity and legal rights meanA A: 5i'e me a person who is not possessed of full ci'il capacity and legal right. & con'icted person which has recei'ed an additional penalty of ci'il interdiction.
A: 5eneral )ule: one who is legally a'ailable for adoption. ): 7ow about a deaf$muteA Is a deaf$mute in possession of full ci'il capacityA ): Bho are legally a'ailable for adoptionA A: Those who are 'oluntarily committed andEor in'oluntarily committed. The parents or guardians of these persons ha'e 'oluntarily surrendered their parental or guardianship authority to the DSBD.
A: nder the rules, a deaf$mute who is not able to read and write is not in possession of full ci'il capacity, thus it is incapable of contracting obligations. ): & person caught urinating, and charged of urinating in public. Is this not moral turpitudeA A: rinating or defecating in public is an offense and not a crime. The re@uirement speas of one who has not been con'icted of a crime, which is punishable by the )e'ised Penal 0ode.
): Bho are those in'oluntarily committedA A: Gudicially or administrati'ely depri'ed. inors, whose parents or guardians are administrati'ely or 6udicially depri'ed of their authority o'er these persons. They are in'oluntarily committed. &nd within that concept, you ha'e the abandoned, the dependents, and neglected children.
): 4ut if you are charged of )ape, can you not adoptA A: 3o. 4ecause it speas of con'iction. Cou must first be con'icted.
): Bhat is a child$placement agency as distinguished from a child$caring agencyA
4ut if you are con'icted of homicide, recent 6urisprudence say, you can still adopt because it is not a crime of moral turpitude. So tatlo, there !&st $e a cri!e, there !&st $e coniction, and it !&st $e o% !oral t&rpit&de.
A: The distinction is in the ser'ices that they cater. Pag placement, it is to pro'ide comprehensi'e child welfare ser'ices including, but not limited to, recei'ing applications for adoption, e'aluating the prospecti'e adopti'e parents, and preparing the adoption home study while pag caring, it is lie 7ospicio de San Gose, which pro'ides %/ hour residential care ser'ices for abandoned, orphaned, neglected or 'oluntarily committed therein.
): 7ow do you establish your emotional and psychological capacityA
): Bhich court has 6urisdiction o'er a petition for adoptionA A: It is the >amily 0ourt. )T0 is not e'en a totally and perfectly correct answer because it may be another )T0. ): Bhat is the 'enueA A: The place where the adopti'e parents reside. NOTE: 7ere, the meaning of residence is the actual habituation of the petitioner. Be are only going to study % fundamental @uestions on adoption. Bho may be adopted and who may adopt. Fnce you perfect that we can go to another lesson.
A: 0learances to show that you ha'e not been con'icted from a crime of moral turpitude. 0learances from )T0, police, P3P, barangay, T0, etc. &nd these clearances will ought to show that you are of good moral character, that you are emotionally and psychologically capacitated, sub6ect of course to presentation of e'idence and cross$e?amination. Bala namang summons sa adoption. ): 7ow do you establish your financial capacityA A: 0ertificate of employment, income ta? returns. ): Bhen we spea of age gap, the miracle number is "8, whyA Bhat is sought to be a'oided by this age gapA A: To a'oid temptation. Cou loo at the history of the 0i'il 0ode of the Philippines which was adopted from the 0i'il 0ode of Spain. &nd being of #uropean origin, there is that also a "8 year old gap. alalaing bulas ang mga european and they
REMREV2 NOTES || BRONDIAL 2014
): Bho may be adoptedA A: 5eneral )ule: one who is legally a'ailable for adoption. ): Bho are legally a'ailable for adoptionA A: There are 9. So that minority is not an absolute re@uirement to be adopted. )elationship is not e'en a dis@ualification on the part of the adoptee. because they can be adopted.
): >or what purpose is thisA A: Fne is the home study report and the other is the case study report. The home study report is about assigning to the social worer of the respecti'e adoptee and the case study report is about the prospecti'e adopter. The general ob6ecti'e of adoption, why it is allowed under the rules, is that which leads to the benefit of the adoptee.
Bhat I would lie to emphasi=e is the doctrine laid down in Cang CA, which is that consent must be gi'en either by the prospecti'e adoptee, if he is at least " years old, or parents, or guardians, or the DSBD. Bithout that consent, as laid down in this doctrine, adoption is null and 'oid.
nder the rules, it is mandatory that the petitioner must appear and testify. Similar to an annulment of marriage case, there can be no stipulation of facts here or confessions of 6udgment. There must be actual presentation of e'idence here. &nd basic re@uirement here is the consent gi'en by the adoptee, the parents or the guardians of the adoptee.
So you can adopt e'en your own child. Cou can e'en adopt your own grandchildren 6ust lie what Guan Ponce #nrile did to his grandchildren.
): &fter the hearing, may the court render 6udgment nowA
): ¬her person who may adopt is a foreigner, and he may adopt under the domestic adoption law or the inter$country adoption law. Bhat are the re@uirementsA
A: The 6udgment referred to here is not similar to the 6udgment that we ha'e ordinarily because the 6udgment here is always sub6ect to the issuance of another decree of adoption. &ng finality dito is not the finality of the 6udgment but rather the finality of the decree of adoption.
A: So all the re@uirements applied to a >ilipino prospecti'e adopter are also re@uired of an alien. Therefore, he must be of legal age, in possession of full ci'il capacity and legal rights, of good moral character, not con'icted of a crime in'ol'ing moral turpitude, etc. F'er and abo'e this, an alien is also re@uired:
): Bhen is the decree of adoption issuedA A: &fter complying with the 8 month trial custody. &gain, this is another undertaing of the DSBD. Tignan niyo, the home or case study report is before the decision is rendered, but before a decree of adoption is rendered ailangan pa ng isa pang report which is the trial custody report.
".
he must ha'e continuously resided in the Philippines * years prior to the filing of the adoption
%.
he must ha'e a certification from his consular official that he is in possession of full ci'il capacity
*.
his country of origin must ha'e diplomatic relations with our country
): >or how longA
/.
his country of origin must allow the adoptee to become a citi=en of his country
A: 5eneral )ule: 8 months.
+.
that his country of origin allows the adoptee to enter the country of origin of the adopter
#?ception: when it is in the best interest of the child the petition during the hearing is that the prospecti'e adoptee is already li'ing with the adopter.
): Bhere should he file this petition for adoptionA (Section %-! ): &fter the decree of adoption has become final and e?ecutory, what is the ne?tA
A: ".
It may be filed by a foreign national or >ilipino citi=en permanently residing abroad with the >amily 0ourt ha'ing 6urisdiction o'er the place where the child resides or may be found
%.
It may be filed directly with the Inter$0ountry &doption 4oard.
Bhen an alien files a petition before the Inter$0ountry &doption 4oard, the alien will come here in the P hilippines and will bring the adoptee and the social worer bac to his country of origin for the trial custody of 8 months will happen there.
A: There should be a new birth certificate issued. )emember that one of the rights of a party in litigation is the right to a speedy and public trial. 4ut this adoption proceeding is e?ceptional because e'en the documents there are public records but are not open to the public, not anybody can get it including the new birth certificate issued to the adopter. NOTE: 4ut tae note that under the rule on rescission of adoption, the issued certificate of the ci'il registrarOs office is cancelled in fa'or of the old birth certificate, which means that the old birth certificate is not deleted, but remains in the record. &nd this is the reason of the confidential nature of the proceedings.
This is purposely done by the law, because there is an ob6ecti'e of discouragement. To discourage the adoption of >ilipino citi=ens by aliens. In fact that is only allowed if the prospecti'e adoptee cannot be adopted by a >ilipino. >ilipinos ha'e the preference of adopting.
R7LE ;J2: (A4EAS CORP7S ): Bhat is the constitutional pro'ision about habeas corpusA
): Bhat constitutes the allegationsA ".
Guris dictional facts
%.
legal capacity of the prospecti'e adopter and the adoptee
In the case of Rep&$lic " (ernande@ ("9!, the S0 said that the petition for adoption does not carry with it the change of name of the adoptee. Bith the present rules on adoption specifically under Section ", this doctrine does not apply anymore. This is a good bar @uestion. So you can now ha'e 6oinder of causes of action in special proceedings, in effect. Dati wala. So you can now 6oin in your prayer, asing for a change of name and for adoption. 1et me emphasi=e, it is a change of name and not a change of surname because change of surname is an automatic effect of adoption. ): &fter you ha'e filed a petition for adoption, what happens nowA
A: The pri'ilege of the writ of habeas corpus shall not be suspended e?cept in cases of in'asion or when public safety re@uires it. It is not the writ which is suspended but the pri'ilege. ): Bhat is a writ of habeas corpusA A: It is an order or 6udicial process directed to the person to show cause for the reason of detention. ): 4y that definition, it is directed in two conditions, which are: A: ". ille gal detention or confinement %.
illegal withholding of custody from a person entitled thereto.
It is directed to someone who commits an act of either illegal detention or confinement or illegal withholding of custody
REMREV2 NOTES || BRONDIAL 2014
A: ;iolation of the constitution, whereby a person is depri'ed or restrained of his liberty or not afforded a right to due process, or an order from an authority which has no 6urisdiction.
A: )T0, specifically the >amily 0ourts. ): ;enueA
): Bhat is an e?ample of the second instanceA
A: )esidence in case of change of name. Bhere the registry is located in case of correction of entries.
A: alimit itong mangyari within the family, where the mother or father fights o'er for the custody of the child. ): If a woman lea'es the parental home in order to stay with her paramour, can the parents file a petition for a writ of habeas corpusA A: It depends. If the child is a minor, a writ of habeas corpus is a'ailable. 4ut when a child comes of age, the writ of habeas corpus is not a'ailable.
): Bhat are the amendments to these two rules brought about by )& /-A A: )emember that )& /- speas only of names and nicname but when )ule "* says change of name, it does not only refer to name or nic name but also to family name. So if you want to change the family name you cannot a'ail of ) & /-. ): Bhat are the groundsA
): Suppose a 6udge renders a 6udgment penali=ing a person with imprisonment of 8 years " month and " day, and then the con'ict has already stayed for more than that period of time, is the writ a'ailableA A: Ces, the writ is a'ailable because that is the immediate remedy. <hough you can also file certiorari but it is no longer immediate here. 4ecause what do you intend to annul thereA wala. ): Bhat is a preliminary citation as compared to the writ of habeas corpus or the peremptory writA A: Preliminary citation is a citation to the go'ernment officer ha'ing the person in his custody to show cause why the writ of habeas corpus should not issue (detention not patently illegal!.
The same grounds. nder )& /-, the same grounds: ". That the name is ridiculous. If your name is 1ucifer, you can ha'e it changed under )ule "* or )& /-. %.
Tainted with dishonor. If your name is Fsama 4in 1aden, you can ha'e it changed.
*.
Cour name is 'ery difficult to pronounce or write. If your name is supercalifragilistice?pialidocious.
/.
That you are nown by the name in the community.
+.
To a'oid confusion.
8.
To a'oid foreign alienage.
Preemptory writ is issued when the cause of the detention appears to be patently illegal and the non$compliance wherewith is punishable.
So the same grounds either under )ule "* or )& /-.
In preliminary citation, it is not mandatory where the court may dispense with the issuance of the preliminary citation and go directly to the issuance of the writ of habeas corpus.
nder )ule "-, you ha'e to correct entries in a document. &nd the enumerated public documents where entries ha'e had are as many as possible. Those which are in the custody of the register of deeds. If the change are substantial, you cannot a'ail )& /- but )ule "-. Cou can only a'ail of )& /- if the change sought is clerical or typographical in nature.
& person in custody of another, restraining the liberty of another, must gi'e a return upon receipt of the writ of habeas corpus. That return can either be prima facie e'idence of the detention or a plea of the facts stated therein, in the return.
): 3ame is aria 0ecilia w hen in her birth certificate it shows as a. 0ecilia, is that typographical or clerical errorA ): &no ang ibig sabihin nitoA (Section "*! A: The content of the return as to whether it is a plea only or prima facie e'idence of detention, they distinguish as to who has burden of proof. If the return contains prima facie e'idence of the detention, then petitioner has the burden of proof to show that the detention is illegal. 4ut if it is only a plea of the facts stated in the return, then the one who has the custody of the person has the burden of proof. So a writ of habeas corpus is directed to a 6ail warden. Bhen the 6ail warden prepares the return, which is brought to the court, he says that this person is under a commitment order, merong desisyon ang orte that this one should be imprisoned because he was denied bail although is appeal is still pending. That is prima facie e'idence of the cause of his detention, and when that is submitted to the court, the applicant has the burden to establish that that commitment order is illegal. 4ut if the return, it says well i am taing custody of this child because i am the father, that is not a commitment order or 6udicial order, that is coming from a pri'ate person. Therefore, that is not prima facie e'idence but only a plea of the facts stated therein. 7ence, the father will show that he has the right to tae custody of the child and not anymore the petitioner.
R7LE ;J9 C(ANGE O1 NA0EB and ;J CORRECTION O1 ENTRIESB These are still applicable. They ha'e only been amended but are not yet repealed by person can a'ail of )ule "* or )ule "- without )& /- being 'iolated.
RA ?J. Therefore, an affected
RA ?J is nown as administrati'e procedure of changing oneOs name or nic name or administrati'e procedure of correcting an entry in a document. Therefore, being administrati'e, it is e?tra6udicial. In case of R&les ;J9 and ;J, they
A: There is no error there. Bhat you ha'e to see is change of name because a is different from aria 0ecilia. There is no error there. Cou cannot a'ail of )& /- if it will change se?, status, or nationality. If there is error you can change it under )ule "and not )& /-. ): Suppose you do it under )ule "-, and it was denied. Bhere do you appeal or what is the remedyA A: The remedy is to go to the 0i'il )egistrar 5eneral who is the anager of the 3ational 0ensus &dministrati'e Fffice. It is not an appeal but a motion for reconsideration. If the ci'il registrar affirms the denial, you file a P#TITIF3 under )ule "-. ): 5oing bac to )& /-, & was born in Lue=on 0ity, he now resides in 4aguio 0ity. Should he go to Lue=on 0ity in order to file under )& /-A A: 3o, he has to file it in 4aguio and under the rules the two ci'il registrar, that of 4aguio and Lue=on city will coordinate. It also can be done abroad, by filing the same with the Philippine 0onsulate, it is a matter of communication. NOTE: &ppeal in )& /- is with the 0i'il )egistrar 5eneral. <hough it is not really an appeal, it is a motion for reconsideration. &ppeal under )ule "* or "- is ordinaryE regular appeal. In )& /-, it is not really an appeal, wala naman asi appeal sa administrati'e remedies, you use the word appeal for facilitation of better understanding. 4ut that is not an appeal, motion for reconsideration siguro.
REMREV2 NOTES || BRONDIAL 2014
R7LES ON EIDENCE TESTI0ONIAL EIDENCE The weaest of all inds of e'idences precisely because it emanates from man who can always try to contro'ert matters. hat are the 6&ali%ications/ Cou better memori=e the @ualifications. ItOs 'ery simple because almost all problems of the @ualification of a witness can be answered through these basic characteristics of a witness. A #itness is one #ho can perceie and perceiing and can !a
4&t i% yo& are prono&nced to $e insane or psychotic, yo& are dis6&ali%ied" 0hildren, under the )ule on Section %", because of their maturity but remember that the children may e'en be more mature than the adults. So this is a case$to$case basis. &nd because of the Child itness R&le it has demasculated or efeminated, wherein children cannot testify. 4ecause under the 0hild Bitness )ule, there are a lot of e?ceptions where a child can testify. There are a lot of what you call testimonial aids. If a child is testifying in a crime of rape, you can gi'e her a doll, then she would testify. Bhat are your parts in the body which are similar to the parts of this doll. Fr she can as to be held by the hand of her grandmother, mother, brother, sister, etc. In fact, two years ago in the bar e?ams, there was a @uestion about fiddling testimony, this is under the 0hild Bitness )ule.
2"
0arital dis6&ali %ication r&le"
If he can percei'e and percei'ing and can mae nown his perception, he can testify. #'en if you donOt get a perfect score, you will not get a =ero for that because that is a correct answer.
o& o%ten con%&se that #ith !arital priilege r&le. & 'ery important guide here is that the marital pri'ilege rule, the statements in the testimony which are not allowed are those of communications which are confidential. 4ut this is not so in marital dis@ualification rule. &nd in the marital dis@ualification rule, the time frame is within or during marriage. 4ut this is not in the marital pri'ilege rule. These are the things. but what are the wai'ers hereA The wai'er is upon consent. ¬her wai'er is one against another. #?ample is for annulment of marriage, the witness in chief is the party in'ol'ed.
Can a child o% tender age testi%y/
9"
If he can percei'e and percei'ing can mae nown his perception, he can testify.
So if & files a case against the estate of 4, or the property belonging to 4 being insane, then & cannot testify on matters ante litem motam (before the contro'ersy!. The rationale behind is that w hen law closes the lips of someone, the ad'erse partyOs lips must liewise be closed. 4ut you might be gi'en certain problems, remember that the action here is limited to actions against the estate in case of a deceased and the property of the insane in case the defendant is insane. So if it is the estate, it must be an action against )ule -9 (action by or against the e?ecutor or administrator!, which are reco'ery of real or personal property, reco'ery of decedentOs interest or lien thereon or reco'ery for damages arising from an offense or action. So it will not be a contractual money claim, because it is a claim against the estate. This one is against the e?ecutor or administrator.
Can a dea%5!&te testi%y/ Can a $lind testi%y/
In one and recent case wherein a child was ased to testify, the S0 allowed the child to testify because they find out that what is the criteria for ability to percei'e is not 6ust percei'ing but maing nown your perception to others. This is the case of People '. 4ulimlit (not sure!, they spoe of the ability to percei'e, then ability of communication. &nd they added the other one, the ability to now the difference between what is right from wrong. In other words, some cases use it as the ability to understand the nature of an oath. In another case, the S0 said that the child was not @ualified to testify because he cannot percei'e and cannot mae nown his perception. The child was % "E% years old.
The Dead 0an s Stat&te
#?ceptions: If there is a wai'er, if one consents to the other. 4ut an implied wai'er here is if the defendant e?ecutor or administrator interposes a counterclaim. The dead manOs statute does not apply because who will establish the counterclaim. 7ow will you oppose the counterclaim. &nd remember that the sub6ect matter are those before the contro'ersy, ante litem motam.
Can a retardate testi%y/ She was the only witness in a rape case where she was a 'ictim, the defendantOs counsel was able to destroy the testimony to the point of e'en getting an answer that she lies the act of rape. 4ut the S0 con'icted the accused nonetheless on the sole testimony of the retardate. )ationale: the retardate is @ualified because she can percei'e and percei'ing can mae nown his perception. Dis6&ali%ication/ 4asic e?ception to the general rule (one can percei'e and percei'ing can mae nown his perception! is if the law dis@ualifies him. So if there is a law dis@ualifying a person, e'en if he can percei'e and percei'ing can mae nown his perception, he is dis@ualified. Cou get that from other laws, substanti'e laws. Be ha'e studied in )ule "" regarding a state witness. Fne of the @ualifications of a state witness is that he must not ha'e been con'icted of a crime in'ol'ing moral turpitude. If you are con'icted of a crime of moral turpitude, you cannot testify as a state witness because the law dis@ualifies you to testify.
"
P ri i le ge R &le
4asic characteristic here in these instances is the confidential nature of the communication between one party and the other. So you start with husband and wife. It is not stated there but this husband and wife relationship can only be in'oed by those who are legally married. <hough it is not stated in the )ules. 4ecause if you gi'e that pri'ilege to those who are not legally married, you are gi'ing a premium to illegality. Therefore, if you are only a common law wife, this rule will not apply to you. "
La#yer and Client relationship
If you ha'e been con'icted of per6ury, defamation or misrepresentation, or forgery, you cannot be a witness to a will under your wills and successions law. &nd remember, before you authenticate a will, you must present the three instrumental witnesses. If one witness is con'icted of per6ury etc. then he cannot testify as a witness.
It is not the client who is pri'ileged here but rather the lawyer who cannot be compelled to testify on matters which he recei'es from the client or regarding matters he ga'e as ad'ices to the client. 7ow about the client testifyingA Ff course, the client can testify, but not the lawyer. 4ut, together with the lawyer and the alter ego of the lawyer which is the secretary or his stenographer. So that would e'en be sui generis, that would e'en include his cler in the office. 4ecause, practically, the secretary or his stenographer nows e'erything. 4ut this has something to do in the course of the practice of the profession. >or e?ample: a client goes to you and communicate matters regarding her amorous affairs and starts insinuating something, this has nothing to do with the case. &nd of course if there is consent, this is another wai'er.
Other dis6&ali%ications:
>"
;"
1oo, there is a peculiarity there. The dis@ualification is only in ci'il cases and not in criminal cases. 4ecause in many instances, the doctor is e'en re@uired to testify in criminal cases. The term doctor e?pands also to his alter ego, or similar, sui generis also. 4&t ho# a$o&t the 6&ac< doctor/ 3o. It is not within the pri'ilege because that would again be gi'ing premium to an illegal practice of medicine. &nd also the matters pri'ileged are those within the communication within the confidential nature of the communication in relation to the medical practice of the person.
0ental incapacity or I!!at&rity"
Bhen you spea of maturity, it does not go with age. Cou may be of age but still immature. Cou may not be of age but already mature. Fne who cannot decipher what is good and right. Fne who does not appreciate the sanctity of an oath. These are signs of immaturity. In other words, you are irresponsible. Bho is irresponsibleA Fne who cannot li'e up to situations. Bho is responsibleA If he has the ability to respond. So you are irresponsible if the incident calls for a correct
Doctor and Patient relationship
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against the other. 8"
Priest and Penitent relationship
&t least in the catholic church, this has ne'er been 'iolated. & lot of priests ha'e fallen and got out of their priestly ministry but had ne'er broen this confession. "
P &$ lic O %% ic er
4ut here what you ha'e to loo into is the public interest. If in disclosing matters, it would be detrimental or pre6udicial to public interest, then you cannot force. #?ample is military secrets. 4ut not the testimony of oaland mutineers.
hat is the general r&le/ If you do something, you are responsible for it. If you do something, another is not responsible for it. 5anun lang yan. <hough, what you ha'e to loo into are the e?ceptions in the res inter alios acta rule. So when you spea of an e?ception, the eyword there is pri'ity. Pag may pri'ity of relationships, then that is an e?ception. So when & does something, that act, declaration, or omission is not admissible as against 4. E'ceptions: ".
If there is pri'ity in their relationship. Bhat is that relationshipA It can be a relation of partnership, agency, co$ ownership, co$debtorship. So yan ang e?ception. 4 can be liable for the act of &, if 4 and & are partners, agents of each other, co$owners, or co$debtors. 4ut in establishing the e?ception, you ha'e to establish the e?istence of the agency, partnership, co$ownership by e'idence other than the act, declaration or omission of a party. So that is where the difficulty lies because you ha'e to get other e'idence other than the act, declaration or omission. So for e?ample, & says, I entered into a contract with H together with 4 who is my partner, the contract or the act of contracting cannot establish partnership. Cou ha'e to establish partnership by other e'idence other than the act of contracting. &nd that holds true with agency, co$ownership, and co$debtorship.
%.
Conspiracy. In criminal law, the act of one is the act of all. you ha'e to establish conspiracy by e'idence other than the act, declaration or omission of the party. Ad!ission $y priies. So these relationships that we ha'e e?emplified are actually legal relationships. 4ut when you spea of pri'ies, they are other forms of relationship. >or e?ample, the relationship between the successor$in$ interest and predecessor$in$interest, father and son relationship, by succession. That is also pri'ity in relationship. Ad!ission $y silence. If &, 4, 0, D, and #, were the accused of robbery and they were put in 6ail. They were confronted by the pri'ate complainant. Pri'ate complainant pointed them as the accused and &, 4, and 0 admitted their guilt reasoning po'erty, D and # ept silent. That is an admission by silence. 4ecause they could ha'e reacted. Silence means consent. #?ceptions to admissions by silence, if you are supposed to react and you did not react, your silence is admissible against you. If you are under ad'isement by your counsel or if you in'oe your right to remain silent. If your answer would be self$incriminatory.
Parental and 1ilial Priilege Parental is with regard to the Parent who cannot be compelled to testify against their children. >ilial is with regard to the child who cannot be compelled to testify against their parents. This is not a dis@ualification per se. ThatOs why it is pri'ilege. It is more of legal incompetency. Parental pri'ilege and >ilial pri'ilege. 0ompulsion. 4ut if parents would lie to testify against children, then go ahead. &nd if the children would lie to testify against their parents, there is no prohibition. Cou cannot force them if they do not want to. This is where the prohibition lies. There are many 6urisprudence where the accused is the father in the crime of rape. The daughter can definitely testify against the father. #'en the mother can testify against the father. This is not a marital dis@ualification. AD0ISSIONS AND CON1ESSIONS Bhen we spea of admission, this is a statement of a fact. There is no admission of liability here, necessarily. 4ut when you spea of a confession, it is always an acnowledgment of guilt. It is an admission of liability. So an admission, as a general rule, is admissible as against the admitter but not against other people. Bhile in confession, it must definitely be against the confessant and ne'er against other people. hat is the e'ception to that/ Inter$locing confession. hat is the doctrine o% inter5loc
*.
/.
The other side of res inter alios acta rule is found in Section */. This is the flip side of res inter alios acta rule doctrine. &nd you will note that Section */ says, that declaration cannot be admissible as to others e?cept that if Pedro does something or does not do anything on this particular occasion, it does not follow that he did or did not do the same thing in another occasion. So, you emphasi=e again there the e?ceptions. It is an e'idence, nonetheless, of intent, nowledge, scheme, plot, habit, custom. Cun ang ginagamit ng mga police in'estigators. EHA0PLE: There is a complainant who goes to the police precinct and said ninaaw ang anyang cellphone. Saang parte a ninaawanA Dun ho sa anto ng e?tramadura at espanya. Nuuha ng file yung pulis and points out to the person. Parang Fcean #le'en. (EARSA R7LE 5eneral )ule: Cou can only testify on what you now. Naya nga, in connection with the general guideline i ga'e you regarding @ualification, one who can percei'e and percei'ing can mae nown his perception, that is the general rule. Someone must personally percei'e and not on what others percei'e. hat is the rationale $ehind the prohi$ition/ There is no opportunity on the part of the party to cross$e?amine the witness. So, this is the general rule. Cou only testify on what you personally now. hat are the e'ceptions/ 0e!ori@e" 7indi na lang "" ito. Nundi "% na. &nd what is the "%th e?ceptionA 0hild Bitness )ule. ". Dying Decla ration %. Declaratio n against interest *. &ct or decla ratio n about pedig ree
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9. -. . ". "". "%.
#ntries in the ordin ary course of business #ntries in official records 0ommercia l lis ts 1earned treatis es Testimony or deposition at a former proceeding and 0hild Bitness )ule
OPINION R7LE 5oing bac to the general formulation, one who can percei'e and percei'ing can mae nown his perception. So what are you suppose to testify onA Bhat you percei'e and not what you thin about what you percei'e because that is already a matter of opinion. Fpinions are not allowed in testimonies. #?ceptions:
Dying Declaration
;"
E 'p ert i tn es s
4ugbog na bugbog na yang dying declarations, in relation to the res gestae.. Gust loo at the @ualifications.
2"
O rd in ary itn es s
In res gestae, the declarant does not hae to die. 4ut in dying declaration, aya nga dying, na!atay. Nung buhay pa yan, hindi dying declaration yan. )emember that these e?ceptions to the hearsay rule, there is a basic re@uirement of una'ailability of the witness. 4ecause if the witness is a'ailable, let him testify orally. The declarant !&st $e conscio&s &pon pending death" Re6&ire!ents o% dying declarations:
a. b.
identity of a person about whom he has ade@uate nowledge hand#riting with which he has sufficient familiarity
c.
mental sanity of a person with whom he is sufficiently ac@uainted
&n e?pert witness must testify on his e?perties. #?ample is in a case of annulment of marriage, mandatorily, the law says that an e?pert witness must testify when the ground is Psychological incapacity. &n ordinary witness may testify on his opinion but limited only to * instances.
a.
That death is i!!inent and the declarant is conscio&s of that fact
b.
That the declaration re%ers to the ca&se and the s&rro&nding circ&!stances of such death
Doctrine o% independently releant state!ent
c.
That the declaration rela tes to the %acts #hich the icti! is co!petent to testi%y
d.
That the declaratio n is o%%ered in a case #herein the declarants death is s&$3ect o% the in6&iry (the 'ictim necessarily must ha'e died!
Cou are not trying to establish the content whether it is true or not but you are only trying to establish the fact that someone (0! told you that H went with &. &s to the e?istence of the fact and not as to the truth or 'eracity of the issue.
e.
That the statement is co!plete in itsel%. R7LE ;9;: 47RDEN O1 PROO1 AND PRES70PTIONS
Declaration against interest" Be discussed that partly. ho has the $&rden o% proo%/ Pedigree Pedigree is a ind of relationship. If one testifies about the relationship of another because it is nown by him, then that is not hearsay. If I testify, I now r. H to be the illegitimate child of r. C. That is not hearsay. 4ut when I say that it is well nown in the community that r. H is not legally married to C. It can be about pedigree of marriage. 0ommon reputation about pedigree. Res Gestae Two inds. It can either be statements during an occurrence or spontaneous articulation in the course of an e'ent. If you are on top of a building, and you are looing o'er on the road and you see both men coming at each other armed with a bolo. These are all part of the res gestae yung reactions. ultiple admissibility, a witness or a testimony can be admitted because of a res gestae or a dying declaration. Treatises It refers to p&$lications and the witness who testifies is not the author. 4ecause i% the a&thor testi%ies on his o#n #riting, then it is not hearsay. It is someone else who testified on a treaty or a publication by a well$nown author or write in speciali=ed fields, this is considered hearsay but admissible. 4ut another @ualification, the one who testifies on that !&st $e
4urden of proof must first be distinguished from burden of e'idence. Bhile burden of proof does not shift, burden of e'idence shifts. 4urden of proof means, the you need to establish a claim. 3ow that claim may be propounded by the plaintiff or the defendant in the case of counterclaim in ci'il cases or in the case of defense on the part of the accused in criminal cases. So burden of proof lies thereof on the claimant. 7e who claims something must establish his claim by proof. There is a peculiarity of burden of proof as distinguished from burden of e'idence in criminal cases. 4ecause in criminal cases, the @uantum of e'idence being proof beyond reasonable doubt, the burden is always with the prosecution. It ne'er shifts from the beginning to the end. Bhat shifts is the burden of e'idence. So when the prosecution has already established its claim that the accused illed the 'ictim, it is incumbent upon the accused to dispro'e the claim. Bhat is the burden of e'idenceA Putting forward the e'idence. This is the literal meaning. That is clear in ci'il cases. 4ecause the plaintiff presents e'idence to establish his claim (sum of money!, demand letters, contract of loan. &fter he has established his burden of proof, comes now the burden of e'idence. eaning to say, who has now the burden of presenting of e'idence to dispro'e the proof presented by the plaintiff is now the defendant. 4ut when the defendant would lie to establish now his defense (affirmati'e relief!, he has the burden of proof. The defendant has to establish his proof. This is not burden of e'idence but proof. hat are the t#o
Testi!ony at a %or!er proceeding or deposition Be ha'e e?tensi'ely studied deposition.
#stoppel in pais and the title of the landlord. Naya memori=e niyo na.
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hat is this estoppel in pais/ Bhen by my act, declaration, or omission, i mae someone belie'e that such a thing is true, I cannot deny my actuation anymore. I am conclusi'ely presumed. I am estopped from denying facts. &, 'endor, sells his real property, consisting of "s@. m. lot to 4. 4 would not want to buy it, but & says, I ha'e a special power of attorney because the title is not titled to &. So 4 agreed. Fn that basis of that declaration, later on he cannot deny otherwise. It is estoppel in pais. In the same ind of e?ample, we gi'e the second ind of conclusi'e presumption. If &, as the seller, says that I am going to sell this to you which I also bought from r. H, therefore, I had a title to the property. Then if 4, later on, says wala a naman palang titulo sa property. 3o. 4 is now bound by the claim of title of &. alimit yang mangyari sa contract of lease. & and 4 entered into a contract of lease o'er a parcel of land. Then 4 being the lessee, * years after, reali=ed that & is really not the owner but the go'ernment. Cou cannot deny now. It must be before the act, declaration, or omission or before they entered into a contract. As to disp&ta$le pres&!ptions There are *9 disputable presumptions. Cou go o'er these disputable presumptions. The e'idence willfully suppressed would be ad'ersed if produced. The emphasis is based on the ground that there are a lot of cases relati'e to this presumption. So remember that this has something to do with suppression of e'idence.
defense of the airline was that no body was reco'ered. So the mother also filed for presumption of death. The S0, there is a pro'ision for the presumption of death. Since the death only happened last year then she must wait for / years before she can apply for the presumption of death. IOm taling of presumption ha. 4ut if you ha'e the body already, then this presumption would not apply. Letter Do&$le A aaB" That a man and woman deporting themsel'es as husband and wife had entered into a lawful contract of marriage. Letter Do&$le 4 $$B" That property ac@uired by a man and a woman who are capacitated to marry each other and who li'e e?clusi'ely each other as husband and wife without the benefit of marriage or under a 'oid marriage has been obtained by their 6oint efforts, wor or industry. Letter Do&$le = 33B" Succession. Bhen two persons perish in the same calamity. ".
4oth are under the age of "+ years $ older
%.
4oth are o'er the age of 8 years $ younger
*.
Fne is under "+ and the other is abo'e 8 $ former
/.
Fne is o'er "+ and the other is under 8, different se? $ male
+.
Fne is o'er "+ and the other is under 8, same se? $ older
8.
Fne is under "+ or o'er 8 and the other between those ages $ latter
And #hat are the re6&isites/ ".
That the e'idence suppressed is at the disposal only of the suppressing party.
%.
That the suppressio n is wil lful.
*.
That the e'idence suppressed is not merely corroborati'e or cumulati'e.
/.
&nd that the suppression is not in the e?ercise of a pri'ilege.
Letter E" The first two are the most important re@uisites. These suppression of e'idence are of any ind. )eal, documentary and e'en testimonial e'idence is co'ered. Suppose it is a prosecution for rape, and then the prosecution says, I would no longer put in the witness stand the police in'estigator. &nd then the other party says, it is suppression of e'idence because if the e'idence will be presented, it will be ad'erse to the prosecution. 3o, the courts would say that is not suppression of e'idence because the police in'estigator is a'ailable to both of you. 4aitA Pwede mo namang ipresent ang police in'estigator by any party. The first re@uisite has not been complied w ith because the e'idence suppressed is not only at the disposal of the suppressing party.
R7LE ;92 5 PRESENTATION O1 EIDENCE To ha'e a birdOs eye 'iew, you di'ide it into three parts: ". %.
#?aminatio n of witness $ Section "$"&uthentication and proof of documents $ Sections " $ **
*.
Fffer and ob6ectio n $ Sections */ $ /
#?amination of a witness presented in a trial or hearing shall be done in open co&rt and &nder oath or a%%ir!ation. The opposition o% open co&rt is in cha!$er. 4ut all these e?aminations of witness is in the presence of a 6udge whether in open court or in chambers.
4ut suppose the e'idence that I would lie to present is ?$ray which is a medical record. I ased for the subpoena duces tecum. The hospital did not produce it. The court sustained and said that this is suppression of e'idence.
The entire proceedings must be recorded. The official record is what you call the the contents of the stenographic notes is prima facie correct.
If it is not willfully suppressed then the presumption would not apply.
>or practical purposes, when you are now trying a case, in the ne?t hearing, be sure that you ha'e already the copy of the transcript of the last hearing. BhyA The only time to correct errors in the transcript of the stenographic notes is before the trial of the case. If you donOt correct the transcript of the stenographic notes, the basis of the 6udgment would always be the transcript of the stenographic notes. In fact, a 6udge who did not hear the case at all can still render 6udgment solely based on the transcript of the stenogrpahic notes. 4efore the "9 )ules of 0ourt, some courts are not courts of record, lie the inferior courts. nder the present rules, all courts are already courts of record. 7ow about @uasi$6udicial agencies, are they courts of recordA Ces they are at present e'en though the rules do not so pro'ide but as a matter of practice.
Letter 0" That official duty has been regularly performed. araming aso ito. &ccused was charged of selling - grams of shabu in a buy$bust operation. During his trial, the prosecution relied mainly on the testimony of a policeman who acted as a buyer. 0an the court rely on the presumption that official duty has been regularly performed in con'icting the accusedA 3o. BhyA To determine whether there was a 'alid entrapment or where entrapment procedures were undertaen in effecting the buy$bust operation, it is incumbent upon the court to mae sure that the details of the operation are clearly and ade@uately laid out, rele'ant, material and competent e'idence. The court cannot rely but must study these things. People " Ong 92 SCRA 2JJB" If you want to apply this presumption, you ha'e to outline the rules and regulations go'erning performance of such obligation. If you donOt outline, there is no presumption that it was regularly performed. So it was more of a defense. If there is a sweeping statement that there is a presumption, then establish that the following are the functions, for e?ample a cler of court in the issuance of a writ of e?ecution. Futline first the functions of a cler of court, umbaga ba e is it the duty of the cler of court or is it the 6udge.
transcript o% stenographic notes. &nd
Section " Order in the e'a!ination o% an indiid&al #itness Be distinguished that from order in the presentation of e'idence which we under )ule * Section + and )ule "", Section "". So in 0i'il Procedure, the order of trial is found in Section + of )ule *. In criminal cases, Section "" of )ule "". That is order of trial. In the order of trial, in criminal cases, we start with the prosecutionOs e'idence. Then accusedOs e'idence. In ci'il cases, we start with plaintiffOs e'idence. Then followed by defendantOs e'idence. &nd followed by *rd party, /th party defendant and the inter'enor. 4ut here it is the order of e?amination. Direct, 0ross, )e$Direct, and then )e$0ross.
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Section ;>" hen #itnesses !ay re%er to !e!orand&! In direct e?amination, you can ha'e an e?amination in chief. Cour cross$e?amination is limited to the sub6ect matter of the direct. The re$direct is limited to the cross. Then the re$cross is limited to the re$direct.
There are two doctrines in this section. Present Recollection Reied and Past Recollection Recorded" General R&le is that yo& testi%y only on #hat yo& personally
hat happens no# to the testi!ony o% the #itness #hose cross5e'a!ination #as not &nderta
Preli!inary !atters $ e?ample, mr. witness are you the plaintiff in this caseA On cross e'a!ination $ )ationale: because atunggali yan. 7e will ne'er answer @uestions in your fa'or.
*.
O% an &n#illing or hostile #itness and witness who is an ad'erse party $ same reason.
#?ception: this section. E'a!ple: Suppose a witness, on his way home, may hinoholdap. Pagdating niya sa bahay, since he has the habit of writing a diary, he wrote down what he witnessed from the hold$up. >or one reason or the other, he was ased to testify. Then he said, I recall that I witness an occasion of a hold$up, but i cannot recall really the e?act incident. The counsel would say, your honor we are in'oing the doctrine on present recollection re'i'ed, may he refer to a memorandum. The court may allow that under this rule. Bhat is not allowed is to ha'e the diary mared in e'idence as testimonial e'idence. 3e'er, that is not allowed. So he testifies on his own, the diary is used only to refresh his memory. It is not e'idence in itself but the e'idence here is testimonial and not documentary. That is present recollection reied. 7a'e you come across Estrada " Desierto. The &ngara Diary. This is a present recollection re'i'ed. & new term is coined, &dopti'e #'idence. hat is Past recollection recorded/
4ut you ha'e to distinguish an ad'erse witness from a hostile or unwilling witness. &s to ad'erse witness, you donOt ha'e to @ualify him because that can be taen 6udicial notice of by the court. 4ut if you present an unwilling witness or a hostile witness, you ha'e to lay down the predicate. Cou ha'e to establish that he is unwilling or a hostile witness. /.
Di%%ic<y in getting direct and intelligi$le ans#ers %ro! a #itness $ leading @uestion is allowed on a child.
&n e?ample of this would be letOs say a medico legal case is being prosecuted. The medico legal officer has a lot of cases already e?amined, thus when he is put to the witness stand, he may be allowed to consult with his e?amination records or autopsy records of r. H. 3ow that can be mared in e'idence. 4ecause that is an entry of official records in hearsay rule. That can be considered. 0ertification from a go'ernment agency is hearsay in itself but it is an e?ception to the hearsay rule.
A !isleading 6&estion is one #hich ass&!es as tr&e a %act not yet testi%ied to $y the #itness, or contrary to that #hich he has preio&s ly stated. It is not allowed. In all instances, a !isleading 6&estion is not allo#ed. 4ecause you are deceitful, you pre'aricate (beat around the bush! actually. Cou intend to tell a lie. E'a!ple: r. Bitness you stated that on such a date you were in that particular place. Fb6ection your honor, there was no testimony to that effect. That is misleading. ¬her e?ample: Fr he testified already. Fn april +, "+, i was watching T;. Then during cross e?amination he ased, r. Bitness you testified that on &pril +, "+ you were watching the basetball game. isleading @uestion.
S#0F3D P&)T F> R7LE ;92 $ A7T(ENTICATION AND PROO1 O1 DOC70ENTS Classes o% doc&!ents: Public or pri'ate I% yo& are as
Section ;; 5 I0PEAC(0ENT O1 ADERSE PARTS ITNESS 7ow do you impeachA ". 4y contradictory e'idence %.
4y e'idence that his general reputation for truth, honesty, or integrity is bad
*.
4y e'idence that he has made at other times statements inconsistent with his present testimony.
I% yo& are as
hat is the ery co!!on #ay o% i!peach!ent/ 0ontradictory e'idence. )ecall your deposition. The deposition of a witness may be used against him. ahirap ang %nd. Frdinarily, you cannot establish the bad character of the witness unless it is testified to or is the sub6ect matter or issue, otherwise you cannot do that. Section ;" E'cl&sion and Separation o% itnesses
The written official acts or records of the official acts of the so'ereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country
Britten official act $ #.F., )ecords of laws passed in congress. Tae note of this foreign country when we taled mandatory 6udicial notice. &s a general rule, our courts cannot tae 6udicial notice of foreign laws. That must be established by e'idence. %. Documents acnowledged before a notary public e?cept last wills and testaments and &n affida'it is not contemplated here. 4ecause it must be acnowledged. &n affida'it is only subscribed and sworn to, or 6urat. Bhat is acnowledgedA & deed of con'eyance or a deed of sale. Bhen you find an acnowledgment in the
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*.
Public records, ept in the Philippines, of pri'ate documents re@uired by law to be entered therein.
4irth certificates when submitted to the 3ational 0ensus or the 0i'il )egistrar. arriage contract. Death 0ertificate. NOTE: Do you recall when we studied correction of entries under )ule "-. "+ items. &ll other writings are pri'ate. So pag pri'ate writing lang ang dapat iauthenticate. I told you the 8 re@uirements for the admissibility of e'idence. Cung isa ay authentication. &nd e?ception to that would be public documents because it need not be authenticated. (o# do yo& a&thenticate priate doc&!ents/ Section 2JB ".
4y anyone who saw the document e?ecuted.
%. *.
4y e'idence of the genuineness of the signature or handwriting of the maer. &ny other pri'ate document need only be identified as that which it is claimed to be.
&ll 6urisprudence says, as a general rule, that when you donOt mae an offer the testimony is inadmissible. 4ut latest 6urisprudence says that e'en if you did not mae an offer at the beginning of your testimonial e'idence that can be corrected. ThatOs the latest 6urisprudence now. It can be corrected by maing the offer at the middle or after. So the S0 is not strict as to the time. 4ut the rule says that you must offer it before the testimonial e'idence. In case of documentary e'idence, you mae the offer in writing, as a general rule. Cou can only mae it orally if the court allows it, if there are only few documentary e'idences. Cou mae the ob6ections during the offer. In the case of the testimonial, after the offer. In the case of documentary, you mae ob6ections upon receipt of a copy of the formal offer of e'idence. The ob6ections referred to here is not only regarding ob6ections to the offer of e'idence. During the testimony or in the course of the proceeding, you can also mae ob6ections. (o# !any
&no ba ang ibig sabihin nitoA Cung mga hindi material. Cou need not authenticate it anymore. If you want to establish, for e?ample, that on your way home you got a letter from the mailbo? which happens to be a lo'e letter.
Substantial and >ormal ob6ection
Section 2;" Eidence o% A&thenticity Not Necessary
hat is s&$stantial o$3ection/ It goes into the substance of what is being ob6ected to.
". It is more than * years old %. It is found in the proper custody as its nature re@uires and *. It is unblemished by any alterations or by any circumstance of suspicion. E'a!ple: birth certificate. Sino pa ba ang magtatago ng birth certificate ung hindi iaw din lang. It must be unblemished by any alterations or by any circumstance of suspicion. Section 2?" (o# =&dicial Record i!peached ".
4y e'idence of want of 6urisdiction in the court or 6udicial officer
%. *.
0oll usion between the parties or >raud in the party offering the record, in respect to the proceedings.
Please connect this with Section 8 o% R&le 9? on 1oreign =&dg!ents because the way to impeach it is also by lac of 6urisdiction, collusion or fraud. Third Part $ O%%er and O$3ection The courts shall not consider any e'idence which has not been formally offered. So #hat are the re6&ire!ents again %or ad!issi$ility/ )ele'ancy, competency, identification, maring, authentication, offer. hen do yo& !a
)eal e'idence $ you offer it right there and then. Documentary e'idence $ you offer it before you rest your case or presentation of e'idence.
*.
Testimonial e'idence $ you offer it before the witness testifies.
So you call on a party, an 1)& case, cancellation of ad'erse claim. The witness is the petitioner himself. Cou lay down the foundations before the testimony be taen. Cour honor, the witness is called upon to establish the truth that he is the petitioner of the case, that he is the owner of the T0T, that such title carries an encumbrance or annotation of ad'erse
hat is %or!al o$3ection/ It only goes into the form, the way it is at. Fb6ection to the leading 6&estion is only a %or!al o$3ection Section J" Tender o% e'cl&ded eidence hat is pro%%er o% eidence/ It is also nown as offer of proof. 4ut the correct term is tender of e?cluded e'idence. Bhen a witness has been declared as incompetent witness, the ad'erse counsel may as for the proffer of e'idence. If the witness were allowed to testify, he w ould ha'e established the following. So in the case of appeal, the appellate court will see and determine the grounds why it was ob6ected to and may re'erse the trial court.
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R7LE ;99 EIG(T AND S711ICIENC O1 EIDENCE Luantum of e'idence: ".
Oer#hel!ing eidence W strongest, that which can ne'er be contradicted.
%.
Proo% $eyond reasona$le do&$t $ this is necessary in criminal cases, it does not absolute certainty but only moral certainty. oral certainty is that which an unpre6udiced mind would belie'e that the thing or that that e?ist. That the accused is guilty thereof based on the circumstances or e'idence.
*.
Preponderance o% eidence $ that which has hea'ier e'idence wins. The graphical illustration is the lady 6ustice with a scale. Pag balanced yun, there is no preponderance. Cou apply the e@uipoise doctrine. This doctrine is if the scale is balanced, status @uo. Defendant wins. &ccused ac@uitted.
4ut preponderance means that one side is weightier than the other side. 7ow do you determineA It is not a matter of number or nature of testimony, but it is a !atter o% !any circ&!stances l&!ped together, credibility of the witness, the nature of the testimonies. Gurisprudence has gi'en us the basic doctrine, which is that the witness must not only be credible but his testimony be credible as well. E'a!ple, if you put on the witness stand a priest to testify, he is a 'ery credible witness. 4ut suppose the priest testified and said that he was on the moon on that date. Then his testimony is incredible. Fr you too someone who is an e?$ con'ict. 7e testified in a 'ery credible manner. The e?$con'ict is not a credible witness but had a credible testimony. /.
S&$stantial eidence $ clear and con'incing e'idence. This is necessary only in administrati'e hearing or procedure. 1abor cases for e?ample. It is similar to probable cause. That which an unpre6udiced mind would consider true based on the facts and circumstances on the e'idence presented based on those facts and circumstances.
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Pro$a$le ca&se $ is the @uantum of e'idence also, that is the re@uired in preliminary in'estigations and preliminary e?amination.
8.
Pri!a 1acie Eidence $ that e'idence which is not so contro'erted becomes conclusi'e. 0an prima facie e'idence con'ictA Ces, solely by it, if the e'idence was ne'er contro'erted, it becomes conclusi'e.
9.
Iota o% eidence $ is one circumstantial e'idence. 1ightest form of e'idence. It can ne'er con'ict. 4ecause under the rule, there must be more than one circumstance. &nd the conclusion arri'ed at must ha'e been established. &nd that these se'eral circumstances establish only one conclusion.
People " Ador $ /*% S0)& Gune "/, %/ 5anito yun, in con'icting an accused for murder, the trial court relied on the circumstances namely: ".
7e was seen fleeing from the crime
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That he all egedly surrendered a hand gun
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That the slug taen from the head of the 'ictim was fired from the gun surrendered
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That the 'ictim made a dying declaration identifying him and
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That the paraffin tests show that he was positi'e for gun powder.
Is the coniction proper/ The S0 said no. >or circumstantial e'idence to suffice there must be more than one circumstance. The facts from which the inferences deri'ed are pro'en. They were not all pro'en. The combination of all the circumstances is such as to produce a con'iction beyond reasonable doubt. So the second and the third re@uirements were not complied with. &ccordingly, the following are the guidelines in appreciating circumstantial e'idence, so please go o'er it. Cou distinguish that from People " 0ans&eto **8 S0)& 9"+ Guly *", %8, 0hief Gustice Da'ide considered the
hat is eidence on !otion/ Bhen a motion is based on facts not appearing of record the court may hear the matter on affida'its or depositions presented by the respecti'e parties, but the court may direct that the matters be heard wholly or partly on oral testimony or depositions. hat is a good e'a!ple o% this/ The one we were discussing about search #arrants. 4ecause if you file a motion to @uash the search warrant in a court which did not issue the search warrant (lie the case of Bashington Distillers '. 0&! then it is e'idence on motion. In other words, the basis of the motion are not parts of the records, so you ha'e to establish those parts.
