SPECIAL PROCEEDINGS PROCEEDINGS PART I. PRELIMINARY MATTERS Rule 72 Section 1. Subject of matter of special proceedings Rules of special proceedings are provided for in the following cases: (a) Settlement of estate of deceased persons (b) Eschea Escheatt (c) Guardianship and custody custody of children (d) ruste rustees es (e) !dopti !doption on (f) Recession Recession and revocat revocation ion of adoption adoption (g) "ospitali#ation of insane insane persons persons (h) Habeas Habeas corpus corpus (i) $hange $hange of name name (%) &oluntary &oluntary dissolutio dissolution n of corporati corporations ons (') udicial approval of voluntary voluntary recognition of minor minor natural children (l) $onstitut $onstitution ion of famil family y home home (m)eclaration of absence and death (n) $ancellation or correction correction of entries in the the civil registry
f the decedent is an inhabitant of the 2hilippines at the time of his death+ whether whether a citi#en citi#en or an alien+ his will shall be proved+ proved+ or letters of administra administration tion granted+ granted+ and his estate estate settled+ settled+ in the $ourt of 3irst 3irst nstance in the province in which he resides at the time of his death+ and if he is an inhabitant of a foreign country+ the $ourt of 3irst nstance of any province in which he had estate. he court first ta'ing cogni#ance of the settlement of the estate of a decedent+ shall e4ercise %urisdiction to the e4clusion of all other courts. he %urisdiction assumed by a court+ so far as it depends on the place of residence residence of the decedent+ decedent+ or of the location location of his estate+ shall not be contested in a suit or proceeding+ e4cept in an appeal from that court+ in the original case+ or when the want of %urisdiction appears on the record. Nte" an! Ca"e"
efinition his proceeding is intended to settle the entire estate %01. t would be absurd for the heirs to )!a !e Ree" /". CA %01. t intentionally e4clude or leave a parcel of land or a portion thereof undistrib undistributed uted or undivided undivided because the proceedin proceeding g is precisely precisely designed to end the community of interests in properties held by parties pro indiviso without designation or segregation of shares.
Special 2roceedings for Settlement of Estate of deceased 5ay be testate+ where deceased left a will+ or intestate when there is no will 2robate of a will is mandatory and ta'es precedence over intestate proceedings f in the course of intestate proceedings+ it is found the decedent left a will+ proceedings for the probate of the latter should replace the intestate intestate proceedings+ proceedings+ regardless regardless if an administr administrator ator has already been probated+ but without pre%udice that proceeding shall continue as an intestacy
$onversion from intestate to testate proceeding Ren" /. Santia$ %03 P4il. 250. *ote that mere discovery of a docu docume ment nt purp purpor orti ting ng to be a will will of the the dece decede dent nt after after appointment of an administrator and assumption that decedent died intestate does not ipso facto nullify the letters already issued or even authori#e authori#e their revocation revocation until will has been proved proved and allowed.
*otes:
Difference between an actin an! a "#ecial #rcee!in$ % Natcher v CA) Rule 1+ Section ,. (a) ! civil action is one by which a party sues another for the enforcement or protection of a right+ or the prevention or redress of a wrong.
Rule 1+ Section ,. (c) ! special proceeding is a remedy by which a party see's to establish a status+ a right+ or a particular fact.
- Special proceedings are not limited to the cases enumerated in Section 1 of this Rule it also includes cases which see' to establish the status or right of a party or a particular fact. /0autista: here is a significant common feature in all these special proceedings. t is apparent that the State has an overriding interest in each special proceeding and that the matter is not a controversy between private parties purely. PART II & '(RISDICTION AND )EN(E* SETTLEMENT O+ ESTATE R(LE 7,. )EN(E AND PROCESSES Sec. 1. Where estate of deceased person settled.
Curt wit4 'uri"!ictin Rule Rule 6,+ Sectio Section n 1+ Rules Rules of $ourt $ourt which which substa substanti ntiall ally y conta contains ins the forego foregoing ing rules rules still still remain remain unamen unamended ded after after the passag passage e of 0atas 0atas 2ambansa 0ilang 178 902 178. Section 1 still spea's of ;$ourt of 3irst
nstance+; instead of ;Regional rial $ourt; and ;province; which in other parts of the Rules had been changed to ;place.; 0ut under 02 178+ the %urisdiction over settlement proceedings is not limited to Regional rial $ourts $ourts but include include 5etropoli 5etropolitan tan rial $ourts+ 5unicipal 5unicipal rial rial $ourts+ $ourts+ and 5unicipal 5unicipal $ircuit $ircuit rial $ourts+ $ourts+ where the value value of the estate estate does not e4ceed 2,<<+<<< outside 5etro 5anila or in 5etro 5anila+ 2=<<+<<<. >nder 2 1
)enue Ahere proceedings commenced Sec. 1+ Rule 6, prescribin prescribing g where the estate of the deceased deceased is to be settled relates to venue and not %urisdiction hus+ place of residence of the deceased does not constitute an element of %urisdiction over the the sub%ect matter but merely constitutive constitutive venue
Pwer" an! !utie" f Prbate curt
(riarte /". C+I6 Ne$r" %,, SCRA 232. Arong venue is a waivable procedural defect+ and such waiver may occur by laches where+ a party had been served notice of the filing of the probate petition for a year and allowed the proceedings to continue for such time before filing a motion to dismiss.
BresidesC he term ;resides; refers to ;actual residence; as distinguished from ;legal residence; or domicile.; 92ilipinas Shell 2etroleum $orporation vs. umlao+ G.R. *o. ==???+ 3ebruary 6+ 1887 Garcia +ule /". CA %75 .!esides" should should be viewed or understood in its popular sense+ meaning+ the personal+ actual or physical habitation of a person+ actual residence or place of abode. t signifies physical presence in a place and actually stay thereat. ! death certificate is admissible to prove the residence of the decedent at the time of his death. Eu"ebi /. Eu"ebi6 %35. %35. he venue of the probate proceeding can be Duestioned only on appeal+ but certiorari is available if the impropriety of the venue (due to residence residence or location location of the estate) appears appears on the record. f proceedings for the settlement of a decedent@s estate are filed in two or more courts+ and the Duestion of venue is raised+ the court in which the first case was filed shall have e4clusive %urisdiction to decide the issue of venue.
rders probate of the will+ grants letters of administration of the party best entitled thereto or any Dualified applicant+ supervises and controls all acts of administr administration ation++ hears and approves approves claims against against the estate+ estate+ orders orders payment of lawful debts+ authori#es sale+ mortgage or any encumbrance of real estate+ directs the delivery of the estate to those entitled thereto Ree" /. M"ue!a M"ue!a %18. $ourt may pass upon the title of a certain property for the purpose of determining whether the same should or should not be included in the inventory but such determination is not conclusive and is sub%ect to final decision in a separate action regarding ownership. $ourt cannot ad%udicate or determine title to properties claimed to be part of the estate estate and which are eDually claimed by outside outside parties cannot e4pand to collateral matters not arising out of or in any way related to the settlement of the properties of the deceased Fuestion of ownership is as a rule+ an e4traneous matter which the probate court cannot resolve with finality 'i9ene: 'i9ene: /". IAC. Res %udicata does not e4ist between an action for the recovery of possession and ownership and the settlement of estate because there is a difference in cause of action. he action for settlement of estate was lodge with the R$ acting as a probate probate court while the action for recovery of possession and ownership was lodge with the R$ acting in its general %urisdiction. he determination of the probate court of title of the property is merely provisional. $ollation v. rder of E4clusion or nclusion in nventory De Len /. CA %82 $ollation before an order of distributi distribution on is merely merely an order to $ollation include the properties in the inventory and is merely interlocutory Ahether collation e4ists or not are issues to be determined later when an order for distribution of the estate is to be made after determination of the net remainder of the estate made *o e4ecution may issue where there is an adverse claimant
E;ce#tin" t Prbate Curt<" Li9ite! 'uri"!ictin Cca /. =rr9e6 %70 Ahether %70 Ahether a particular matter should be resolved by the R$ in the e4ercise of its general %urisdiction or its limited probate %urisdiction is not a %urisdictional issue but a mere Duestion of procedure and can be waived Sec. 7. Ahere estate settled upon dissolution of marriage. Ahen the marriage is dissolved by the death of the husband or wife+ the community property shall be inventoried+ administered+ and liDuidated+ and the debts thereof paid+ in the testate or intestate proceedings of the deceased spouse. f both spouses have died+ the con%ugal partnership shall be liDuidated in the testate or intestate proceedings of either.
nstance+; instead of ;Regional rial $ourt; and ;province; which in other parts of the Rules had been changed to ;place.; 0ut under 02 178+ the %urisdiction over settlement proceedings is not limited to Regional rial $ourts $ourts but include include 5etropoli 5etropolitan tan rial $ourts+ 5unicipal 5unicipal rial rial $ourts+ $ourts+ and 5unicipal 5unicipal $ircuit $ircuit rial $ourts+ $ourts+ where the value value of the estate estate does not e4ceed 2,<<+<<< outside 5etro 5anila or in 5etro 5anila+ 2=<<+<<<. >nder 2 1
)enue Ahere proceedings commenced Sec. 1+ Rule 6, prescribin prescribing g where the estate of the deceased deceased is to be settled relates to venue and not %urisdiction hus+ place of residence of the deceased does not constitute an element of %urisdiction over the the sub%ect matter but merely constitutive constitutive venue
Pwer" an! !utie" f Prbate curt
(riarte /". C+I6 Ne$r" %,, SCRA 232. Arong venue is a waivable procedural defect+ and such waiver may occur by laches where+ a party had been served notice of the filing of the probate petition for a year and allowed the proceedings to continue for such time before filing a motion to dismiss.
BresidesC he term ;resides; refers to ;actual residence; as distinguished from ;legal residence; or domicile.; 92ilipinas Shell 2etroleum $orporation vs. umlao+ G.R. *o. ==???+ 3ebruary 6+ 1887 Garcia +ule /". CA %75 .!esides" should should be viewed or understood in its popular sense+ meaning+ the personal+ actual or physical habitation of a person+ actual residence or place of abode. t signifies physical presence in a place and actually stay thereat. ! death certificate is admissible to prove the residence of the decedent at the time of his death. Eu"ebi /. Eu"ebi6 %35. %35. he venue of the probate proceeding can be Duestioned only on appeal+ but certiorari is available if the impropriety of the venue (due to residence residence or location location of the estate) appears appears on the record. f proceedings for the settlement of a decedent@s estate are filed in two or more courts+ and the Duestion of venue is raised+ the court in which the first case was filed shall have e4clusive %urisdiction to decide the issue of venue.
rders probate of the will+ grants letters of administration of the party best entitled thereto or any Dualified applicant+ supervises and controls all acts of administr administration ation++ hears and approves approves claims against against the estate+ estate+ orders orders payment of lawful debts+ authori#es sale+ mortgage or any encumbrance of real estate+ directs the delivery of the estate to those entitled thereto Ree" /. M"ue!a M"ue!a %18. $ourt may pass upon the title of a certain property for the purpose of determining whether the same should or should not be included in the inventory but such determination is not conclusive and is sub%ect to final decision in a separate action regarding ownership. $ourt cannot ad%udicate or determine title to properties claimed to be part of the estate estate and which are eDually claimed by outside outside parties cannot e4pand to collateral matters not arising out of or in any way related to the settlement of the properties of the deceased Fuestion of ownership is as a rule+ an e4traneous matter which the probate court cannot resolve with finality 'i9ene: 'i9ene: /". IAC. Res %udicata does not e4ist between an action for the recovery of possession and ownership and the settlement of estate because there is a difference in cause of action. he action for settlement of estate was lodge with the R$ acting as a probate probate court while the action for recovery of possession and ownership was lodge with the R$ acting in its general %urisdiction. he determination of the probate court of title of the property is merely provisional. $ollation v. rder of E4clusion or nclusion in nventory De Len /. CA %82 $ollation before an order of distributi distribution on is merely merely an order to $ollation include the properties in the inventory and is merely interlocutory Ahether collation e4ists or not are issues to be determined later when an order for distribution of the estate is to be made after determination of the net remainder of the estate made *o e4ecution may issue where there is an adverse claimant
E;ce#tin" t Prbate Curt<" Li9ite! 'uri"!ictin Cca /. =rr9e6 %70 Ahether %70 Ahether a particular matter should be resolved by the R$ in the e4ercise of its general %urisdiction or its limited probate %urisdiction is not a %urisdictional issue but a mere Duestion of procedure and can be waived Sec. 7. Ahere estate settled upon dissolution of marriage. Ahen the marriage is dissolved by the death of the husband or wife+ the community property shall be inventoried+ administered+ and liDuidated+ and the debts thereof paid+ in the testate or intestate proceedings of the deceased spouse. f both spouses have died+ the con%ugal partnership shall be liDuidated in the testate or intestate proceedings of either.
)ita )ita /. Mntan Mntan >1? SCRA >08. f both spouses spouses die+ the con%ugal con%ugal partnership shall be liDuidated in the testate intestate proceedings of either. t is not necessary to file a separate proceeding in court for the proper disposition of the estate of the deceased wife where there is already a pending proceedings in settlement of the estate of the deceased husband Sec. ,. 2rocess. n the e4ercise of probate %urisdiction+ $ourt of 3irst nstance may issue warrants and processes processes necessary necessary to compel the attendance attendance of witnesses witnesses or to carry into effect their orders and %udgments+ and all other powers granted them by law.
Pa9ent f !ebt" Sale"6 9rt$a$e"6 an! t4er encu9berance" f t4e #r#ert f t4e !ece!ent After t4e c4ar$e" reuire! b law t be #ai! 4a" been "ati"fie! b t4e e"tate6 #artitin f t4e re"i!ual e"tate will be 9a!e.
f a person does not perform an order of %udgment rendered by a court in the e4ercise of its probate %urisdiction+ it may issue a warrant for the apprehension and imprison imprisonment ment of such person until he performs such order or %udgment+ %udgment+ or is released.
Sec. 1. E4tra%udicial settlement by agreement between heirs.
Sec. =. 2resumption of of death. 3or purposes of settlement of his estate+ a person shall be presumed dead if absent and unheard from for the periods fi4ed in the $ivil $ode. 0ut if such person proves to be alive+ he shall be entitled to the balance of his estate after payment of all his debts. he balance may be recovered by motion in the same proceeding.
*o independent action for declaration of presumption of death disputable disputable presumption presumption established established by the rules of evidence that a person not heard from in 6 years is dead+ may arise and be invo'ed either in an action or in a special proceeding+ which is tried and heard by+ and submitted for decision to a competent court. ndependently of such action or special proceeding+ the presumption of death cannot be invo'ed nor can it be made the sub%ect of an action or special proceeding (#n !e Nicolai S$atro% )
PART III & SETTLEMENT O+ T@E ESTATE TO better un!er"tan! t4e rule"6 re9e9ber t4at T4ere are , in!" f "ettle9ent>. E;traBu!icial "ettle9ent f e"tate" %Rule 7?.> 2. Su99ar Su99ar "ettle9ent "ettle9ent f e"tate" e"tate" f "9all "9all /alue %Rule %Rule 7?.2 ,. 'u!icial "ettle9ent "ettle9ent t4ru$4 t4ru$4 letter" letter" te"ta9entar te"ta9entar r letter" f a!9ini"tratin wit4 r wit4ut t4e will anne;e! %rule" 7301 a. Allwance Allwance r !i"allwanc !i"allwance e f will" %te"ta9entar %te"ta9entar "ucce""i "ucce""in n b. I""uance f f letter" f a!9ini"tratin a!9ini"tratin r letter" te"ta9entar te"ta9entar i. O##"in$ O##"in$ i""uanc i""uance e f letter" letter" te"ta9en te"ta9entar tar ii. =n!" f e;ecutr e;ecutr"a!9 "a!9ini"t ini"tratr ratr" " iii. General General #wer" #wer" an! !utie" !utie" i/. Accun Accuntab tabili ilit t /. Re/catin Re/catin f a!9ini"tra a!9ini"tratin tin c. Deter9inatin f t4e #r#ertie" inclu!e! in t4e e"tate i. Clai9" a$ain"t t4e e"tate
ii.
Actin b an! a$ain"t t4e e;ecutra!9ini"tratr
iii. i/.
A. E;traBu!icial an! Su99ar Settle9ent f E"tate" Rule 7? & Su99ar Settle9ent f E"tate"
f the decedent left no will and no debts and the heirs are all of age+ or the minors are represented by their %udicial or legal representatives duly authori#ed for the purpose+ the parties may+ without securing letters of administration+ divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds+ and should they disagree+ they may do so in an ordinary action of partition. f there is only one heir+ he may ad%udicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. he parties to an e4tra%udicial settlement+ whether by public instrument or by stipulation in a pending action for partition+ or the sole heir who ad%udicates the entire estate to himself by means of an affidavit shall file+ simultaneously with and as a condition precedent to the filing of the public instrument+ or stipulation in the action for partition+ or of the affidavit in the office of the register of deeds+ a bond with the said register of deeds+ in an amount eDuivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any %ust claim that may be filed under Section = of this rule. t shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (7) years af ter the death of the decedent. he fact of the e4tra%udicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the ne4t succeeding section but no e4tra%udicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. Nte" an! ca"e"H1+ Rule 6= is an e4emption to the rule that when a person dies leaving property+ it should be %udicially administered and the competent court should appoint a Dualified administrator. he different modes of transmission of the property of the decedent may be through testamentary+ legal or intestate+ or mi4ed succession. his is to be
differentiated from the different modes for the settlement of the estate of the deceased E4tra%udicial settlement of estate (Rule 6=.1) 2artition (Rule I8+ also mentioned in rule 6=.1) Summary settlement of estates of small value (6=.7) 2robate of wills (rules 6J-68) 2etition for letters of administration in cases of intestacy (rule 68) udicial administration is not favored. Ahen the heirs are all of lawful age and there are no debts+ there is no reason to burden the estate wit the costs and e4penses of an administrator. Recourse to an administration proceedings even if the estate has no debts is sanction only if the heirs have good reason for not resorting to an action for partition. #f partition is possible& no need to burden the estate %ith the costs of an administrator Ahat constitutes a Bgood reasonC depends on the circumstances of the case. ispute among the heirs is not a good reason. 5ultiplicity of suits is not a good reason. o have legal capacity to appear is not a good reason @ernan!e: /". An!al. ral partition is valid and binding. here is no reDuirement for the validity of a partition among the heirs to be in writing. he reDuirement that partition should be reduced in a public document and registered is for the protection of the creditors and the protection of the heirs against tardy claims 2artition is not covered by the statute of frauds (no reDuirement under substantive law to be in writing). t is not conveyance of property. t does not involve transfer of property from one to another+ but a confirmation or ratification of the title or right of property by the heir renouncing in favor of another heir accepting and receiving the inheritance. ! compromise agreement entered into by and between the various heirs is binding upon them as individuals even without previous authority of the court. f the court already had %urisdiction over the settlement of the estate of the deceased+ the heirs cannot divest the court of its acDuired %urisdiction by dividing and distributing the estate e4tra%udicially among themselves. !n e4tra%udicial partition of the estate submitted by the heirs after the court has acDuired %urisdiction become a %udicial partition after the approval by the court. Gue/arra /". Gue/arra. >nder section 1 of Rule 6=+ in relation to Rule 6I+ if the decedent left a will and no debts and the heirs and legatees desire to ma'e an e4tra%udicial partition of the estate+ they must first present that will to the court for probate and divide the estate in accordance with the will. hey may not disregard the provisions of the will unless those provisions are contrary to law. *either may they do away with the presentation of the will to the court for probate+ because such suppression of the will is contrary to law and public policy.
Sec. 7. Summary settlement of estates of small value. Ahenever the gross value of the estate of a deceased person+ whether he died testate or intestate+ does not e4ceed ten thousand pesos+ and that fact is made to appear to the $ourt of 3irst nstance having %urisdiction of the estate by the petition of an interested person and upon hearing+ which shall be held not less than (1) month nor more than three (,) months from the date of the last publication of a notice which shall be published once a wee' for three (,) consecutive wee's in a newspaper of general circulation in the province+ and after such other notice to interested persons as the court may direct+ the court may proceed summarily+ without the appointment of an e4ecutor or administrator+ and without delay+ to grant+ if proper+ allowance of the will+ if any there be+ to determine who are the persons legally entitled to participate in the estate+ and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due and such persons+ in their own right+ if they are of lawful age and legal capacity+ or by their guardians or trustees legally appointed and Dualified+ if otherwise+ shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively. he court shall ma'e such order as may be %ust respecting the costs of the proceedings+ and all orders and %udgments made or rendered in the course thereof shall be recorded in the office of the cler'+ and the order of partition or award+ if it involves real estate+ shall be recorded in the proper register;s office.
he 5$ has %urisdiction over summary settlement of estates of small value.
Sec. ,. 0ond to be filed by distributes. he court+ before allowing a partition in accordance with the provisions of the preceding section+ may reDuire the distributes+ if property other than real is to be distributed+ to file a bond in an amount to be fi4ed by the court+ conditioned for the payment of any %ust claim which may be filed under the ne4t section.
Sec. =. Kiability of distributees and estate. f it shall appear at any time within two (7) years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule+ that 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 in the manner hereinafter provided for the purpose of satisfying such lawful participation. !nd if within the same time of two (7) 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+
Te"tate Prcee!in$" the court having %urisdiction of the estate may+ by order for that purpose+ after hearing+ settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof+ and may issue e4ecution+ if circumstances reDuire+ against the bond provided in the preceding section or against the real estate belonging to the deceased+ or both. Such bond and such real estate shall remain charged with a liability to creditors+ heirs+ or other persons for the full period of two (7) years after such distribution+ notwithstanding any transfers of real estate that may have been made. Nte" an! Ca"e"Rule n li9itatin" nt a##licable t t4"e w4 4a! n nwle!$e f "ettle9ent Sa9#il /". CA %>8, P4il 7>. he provisions of Sec = Rule 6=+ barring distributes or heirs from ob%ecting to an e4tra%udicial partition after the e4piration of 7 years from such e4tra%udicial partition+ is applicable only: a. to persons who have participated or ta'en part or had notice of the etrajudicial partition and b. when the provisions of Sec 1 or Rule 6= have been strictly complied with+ i.e. that. !ll the persons or heirs of the decedent have ta'en part in the e4tra%udicial settlement or are represented by themselves or through their guardians. hus+ sec = Rule 6= is only a bar against the parties who had ta'en part in the e4tra%udicial proceedings+ but * against third persons not parties thereto.
2eriod to file a claim against the bond: rdinary: "eirLother person has been unduly deprived of his lawful participation in the estate ebts of the estate have remained unpaid 3raud iscovery is presumed from the time the deed is registered $laims of 5inors and other incapacitated persons =. 'u!icial Settle9ent f E"tate"
7 years from the settlement and distribution
= years from the discovery of f raud
1 year from removal of disability
Rule 73 Pr!uctin f ill Allwance f ill Nece""ar Nte" an! Ca"e"Prbate f ill Man!atr
Gue/arra /". Gue/arra. Even if the decedent left no debts and nobody raises any Duestion as to the authenticity and due e4ecution of the will+ none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court+ first+ because the law e4pressly provides that Mno will shall pass either real or personal estate unless it is proved and allowed in the proper courtM and+ second+ because the probate of a will+ which is a proceeding in rem+ cannot be dispensed with and substituted by any other proceeding+ %udicial or e4tra%udicial+ without offending against public policy designed to effectuate the testator;s right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will.
E;ce#tin !rt. 1nder e4ceptional circumstances+ the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will. Caetan /". Leni!e" %>21 SCRA ,,* Ne#9ucen /". CA. Ahere circumstances demand that the intrinsic validity of testamentary provisions be passed upon before the e4trinsic validity of the will is resolved+ the probate court should meet the issue. IMPORTANT 4en t4e will i" intrin"icall /i! ON ITS +ACE6 t4en t4e #rbate curt 9a !well n t4e i""ue f intrin"ic /ali!it %t4e FPractical Cn"i!eratin" Dctrine %Acain /. IAC Sub"tantial C9#liance Sufficient
Substantial compliance is acceptable where the purpose of the law has been satisfied+ the reason being that the solemnities surrounding the e4ecution of wills are intended to protect the testator from all 'inds of fraud and tric'ery but never intended to be so rigid and infle4ible as to destroy the testamentary privilege.
Re9e! f Certirari a/ailable - Even assuming the e4istence of the remedy of appeal+ the $ourt hear'ens to the rule that in the broader interests of %ustice+ a petition for certiorari may be entertained+ particularly where appeal would not afford speedy and adeDuate relief. Princi#le nt a##lie! w4ere 9eat f cntr/er" i" nt intrin"ic /ali!it Maninan$ /". CA %02. he *uguid and 0alanay cases provide the e4ception rather than the rule. he intrinsic validity of the wills in those cases was passed upon even before probate because the practical considerations so demanded. 5oreover+ for the parties in the *uguid case+ the Bmeat of the controversyC was the intrinsic validity of the will. Di"9i""al i9#r#er w4ere i""ue" are cntr/er"ial Maninan$ /". CA %02. 0y virtue of the dismissal of the estate $ase+ the determination of that controversial issue has not been thoroughly considered. )!a. De Precilla /". Narci". t is a matter of public interest that a purported will is not denied legali#ation on dubious grounds. Decree f Prbate i" cnclu"i/e a" t it" !ue e;ecutin Mana4an /. Mana4an %,,. Settled is the rule that the decree of probate is conclusive with respect to the due e4ecution of the will and it cannot be impugned on any of the grounds authori#ed by law+ e4cept that of fraud+ in any separate or independent action or proceeding Sec. 7. $ustodian of will to deliver. he person who has custody of a will shall+ within twenty (7<) days after he 'nows of the death of the testator+ deliver the will to the court having %urisdiction+ or to the e4ecutor named in the will. Nte" an! Ca"e"
@eir" f t4e late 'e"u" +ran /". Sala". 3ailure to attach original of the will to the petition is not critical where the will itself was adduced in evidence. t is not necessary to attach original will to petition for probate.
Sec. ,. E4ecutor to present will and accept or refuse trust. ! person named as e4ecutor in a will shall+ within twenty (7<) days after he 'nows of the death of the testator+ or within twenty (7<) days after 'nows that he is named e4ecutor
if he obtained such 'nowledge after the death of the testator+ present such will to the court having %urisdiction+ unless the will has reached the court in any other manner+ and shall+ within such period+ signify to the court in writing his acceptance of the trust or his refusal to accept it. Sec. =. $ustodian and e4ecutor sub%ect to fine for neglect. ! person who neglects any of the duties reDuired in the two last preceding sections without e4cuse satisfactory to the court shall be fined not e4ceeding two thousand pesos. Sec. J. 2erson retaining will may be committed. ! person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same+ when ordered so to do+ to the court having %urisdiction+ may be committed to prison and there 'ept until he delivers the will. Rule 75 Allwance r Di"allwance f ill Sec. 1. Aho may petition for the allowance of will. !ny e4ecutor+ devisee+ or legatee named in a will+ or any other person interested in the estate+ may+ at any time after the death of the testator+ petition the court having %urisdiction to have the will allowed+ whether the same be in his possession or not+ or is lost or destroyed. he testator himself may+ during his lifetime+ petition the court for the allowance of his will.
Nte" an! Ca"e"Meanin$ f Intere"t in E"tate Su9ilan$ /". Ra9a$"a %57. n order that a person may be allowed to intervene in a probate proceeding+ he must have an interest in: a. the estate+ or b. in the will+ or c. in the property to be affected by it either as: a. e4ecutor+ or b. a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate li'e a creditor. 'uri"!ictin6 @w acuire! !ttaching of mere copy of will sufficient Sala:ar /". C+I f La$una %,7. t has been the practice in some courts to permit attachment of mere copy of the will to the application+ without
pre%udice to producing the original thereof at the hearing or when the court so reDuires.
elivery of Aill sufficient even if no petition filed R!ri$ue: /". =rBa %55. he %urisdiction of the court becomes vested upon the delivery thereto of the will even if no petition for its allowance was filed later.
Sec. 7. $ontents of petition. ! petition for the allowance of a will must show+ so far as 'nown to the petitioner: (a) he %urisdictional facts (b) he names+ ages+ and residences of the heirs+ legatees+ and devisees of the testator or decedent (c) he probable value and character of the property of the estate (d) he name of the person for whom letters are prayed (e) f the will has not been delivered to the court+ the name of the person having custody of it. 0ut no defect in the petition shall render void the allowance of the will+ or the issuance of letters testamentary or of administration with the will anne4ed.
he %urisdictional facts in a probate proceeding are the 1) death of the decedent+ 7a)his residence at the time of death in the province where the court is sitting R 7b) if he is an inhabitant of a foreign country+ his leaving an estate in the province (also in Rule 6,.1)
e !ran# v. Galing+ (??) 5ere publication of the notice of hearing is not enough to confer %urisdiction on the court. Ahere the addresses of the heirs and legatees are 'nown+ personal and individual notice to them is mandatory. Such notice is not necessary and publication is sufficient only when the addresses are not 'nown or the address given in the petition is wrong
Sec. =. "eirs+ devisees+ legatees+ and e4ecutors to be notified by mail or personally. he court shall also cause copies of the notice of the time and place fi4ed for proving the will to be addressed to the designated or other 'nown heirs+ legatees+ and devisees of the testator resident in the 2hilippines at their places of residence+ and deposited in the post office with the postage thereon prepaid at least twenty (7<) days before the hearing+ if such places of residence be 'nown. ! copy of the notice must in li'e manner be mailed to the person named as e4ecutor+ if he be not be petitioner also+ to any person named as co-e4ecutor not petitioning+ if their places of residence be 'nown. 2ersonal service of copies of the notice at least ten (1<) days before the day of hearing shall be eDuivalent to mailing. f the testator as's for the allowance of his own will+ notice shall be sent only to his compulsory heirs.
he probate of a will is a proceeding in rem. publication is a prereDuisite which serves as constructive notice to the whole world. udgment rendered therein is binding on everybody+ even against the state. !side from publication+ notice of hearing is also reDuired to be given to the designated heirs+ legatees and devisees
*otice
Sec. ,. $ourt to appoint time for proving will. *otice thereof to be published Ahen a will is delivered to+ or a petition for the allowance of a will is filed in+ the court having %urisdiction+ such court shall fi4 a time and place for proving the will when all concerned may appear to contest the allowance thereof+ and shall cause notice of such time and place to be published three (,) wee's successively+ previous to the time appointed+ in a newspaper of general circulation in the province. 0ut no newspaper publication shall be made where the petition for probate has been filed by the testator himself.
0asa v. 5ercado+ (,J).! newspaper is of general circulation where it is published for the dissemination of local news and general information and it is not devoted to the interest or publication for the entertainment of a particular class+ profession+ trade+ calling+ race+ or religious denomination and is published at regular intervals.
!ntemortem 2robate 2ublication of date and place of hearing in a newspaper of general circulation once a wee' for , consecutive wee's *otice to all devisees+ heirs+ legatees and e4ecutor either personally or by mail
2ostmortem 2robate *o publication necessary
*otice to be sent in the same manner only to the compulsory heirs
Prf at @earin$ Sec. J. 2roof at hearing. - Ahat sufficient in absence of contest.
!t the hearing compliance with the provisions of the last two preceding sections must be shown before the introduction of testimony in support of the will. !ll such testimony shall be ta'en under oath and reduced to writing. f no person appears to contest the allowance of the will+ the court may grant allowance thereof on the testimony of one of the subscribing witnesses only+ if such witness testify that the will was e4ecuted as is reDuired by law. n the case of a holographic will+ it shall be necessary that at least one witness who 'nows the handwriting and signature of the testator e4plicitly declare that the will and the signature are in the handwriting of the testator. n the absence of any such competent witness+ and if the court deem it necessary+ e4pert testimony may be resorted to. Sec. I. 2roof of lost or destroyed will. - $ertificate thereupon. *o will shall be proved as a lost or destroyed will unless the e4ecution and validity of the same be established+ and the will is proved to have been in e4istence at the time of death of the testator+ or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his 'nowledge+ nor unless its provisions are clearly and distinctly proved by at least two (7) credible witnesses. Ahen a lost will is proved+ the provisions thereof must be distinctly stated and certified by the %udge+ under the seal of the court+ and the certificate must be filed and recorded as other wills are f iled and recorded.
hree facts to be proven in order that a lost or destroyed will be allowed: o Aill duly e4ecuted by testator o Aill in e4istence when the testator died+ or if not+ that it was accidentally or fraudulently destroyed in the lifetime of the testator without his 'nowledge o 2rovisions of will clearly established by at least two credible witnesses ArauB /. Celi". 3irst and third f acts above are secondary evidence in lieu of original Li9 =illian /. Sunta. Koss of the will should be proved before secondary evidence may be admitted. Dia: /. De Len. o preclude inference that testator destroyed his own will+ the second fact needs to be proved.
f it appears at the time fi4ed for the hearing that the subscribing witnesses are dead or insane+ or that none of them resides in the 2hilippines+ the court may admit the testimony of other witnesses to prove the sanity of the testator+ and the due e4ecution of the will and as evidence of the e4ecution of the will+ it may admit proof of the handwriting of the testator and of the subscribing witnesses+ or of any of them.
Mara/illa /. Mara/illa. he failure of the witness to identify his own signature does not bar probate.
Sec. 11. Subscribing witnesses produced or accounted for where will contested. f the will is contested+ all the subscribing witnesses+ and the notary in the case of wills e4ecuted under the $ivil $ode of the 2hilippines+ if present in the 2hilippines and not insane+ must be produced and e4amined+ and the death+ absence+ or insanity of any of them must be satisfactory shown to the court. f all or some of such witnesses are present in the 2hilippines but outside the province where the will has been filed+ their deposition must be ta'en. f any or all of them testify against the due e4ecution of the will+ or do not remember having attested to it+ or are otherwise of doubtful credibility+ the will may+ nevertheless+ be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was e4ecuted and attested in the manner reDuired by law. f a holographic will is contested+ the same shall be allowed if at least three (,) witnesses who 'now the handwriting of the testator e4plicitly declare that the will and the signature are in the handwriting of the testator in the absence of any competent witness+ and if the court deem it necessary+ e4pert testimony may be resorted to. Sec. 17. 2roof where testator petitions for allowance of holographic will. Ahere the testator himself petitions for the probate of his holographic will and no contest in filed+ the fact that he affirms that the holographic will and the signature are in his own handwriting+ shall be sufficient evidence of the genuineness and due e4ecution thereof. f the holographic will is contested+ the burden of disproving the genuineness and due e4ecution thereof shall be on the contestant. he testator may+ in his turn+ present such additional proof as may be necessary to rebut the evidence for the contestant. Su99ar n Prf t be Pre"ente!
Sec. 6. 2roof when witnesses do not reside in province. f it appears at the time fi4ed f or the hearing that none of the subscribing witnesses resides in the province+ but that the deposition of one or more of them can be ta'en elsewhere+ the court may+ on motion+ direct it to be ta'en+ and may authori#e a photographic copy of the will to be made and to be presented to the witness on his e4amination+ who may be as'ed the same Duestions with respect to it+ and to the handwriting of the testator and others+ as would be pertinent and competent if the original will were present. Sec. ?. 2roof when witnesses dead or insane or do not reside in the 2hilippines.
Ante9rte9 @l$ra#4ic ill *o $ontest estator shall affirm the holographic will and the signature are his
Aith $ontest 0urden of disproving genuineness and due e4ecution is on the contestant. estator may then present his evidence
P"t Mrte9 "olographic
*o $ontest !t least one witness who
Aith $ontest !t least , witnesses who
'nows the handwriting and signature of the testator+ or an e4pert witness
'now the handwriting and signature of the testator+ or an e4pert witness
!t least one subscribing witness testifies that will e4ecuted as reDuired by law
!ll subscribing witnesses and the notary public shall testify that will was e4ecuted as reDuired by law
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L"t ill" Pr/e 1. Aill was in e4istence at the time of death of the testator+ or 3raudulently or accidentally destroyed during his lifetime of the testator without his 'nowledge+ and 7. 2rovisions clearly and distinctly proven by at least 7 credible witnesses *ot Residents of the 2rovince where 2robate $ourt Sits
Aitnesses are ead+ nsane or *on Residents of the 2hilippines
a'e deposition of witnesses and allow them to e4amine a photographic copy of the will
$ourt may admit testimony of other witnesses to prove sanity of the testator and due e4ecution of the will
Sec. 1,. $ertificate of allowance attached to proved will. - o be recorded in the ffice of Register of eeds. f the court is satisfied+ upon proof ta'en and filed+ that the will was duly e4ecuted+ and that the testator at the time of its e4ecution was of sound and disposing mind+ and not acting under duress+ menace+ and undue influence+ or fraud+ a certificate of its allowance+ signed by the %udge+ and attested by the seal of the court shall be attached to the will and the will and certificate filed and recorded by the cler'. !ttested copies of the will devising real estate and of certificate of allowance thereof+ shall be recorded in the register of deeds of the province in which the lands lie. R(LE 77 ALLOANCE O+ ILL PRO)ED O(TSIDE O+ P@ILIPPINES AND ADMINISTRATION O+ ESTATE T@ERE(NDER Sec. 1. Aill proved outside 2hilippines may be allowed here. Aills proved and allowed in a foreign country+ according to the laws of such country+ may be allowed+ filed+ and recorded by the proper $ourt of 3irst nstance in the 2hilippines.
Sec. 1<. $ontestant to file grounds of contest. !nyone appearing to contest the will must state in writing his grounds for opposing its allowance+ and serve a copy thereof on the petitioner and other parties interested in the estate.
Sec. 8. Grounds for disallowing will. he will shall be disallowed in any of the following cases: (a) f not e4ecuted and attested as reDuired by law (b) f the testator was insane+ or otherwise mentally incapable to ma'e a will+ at the time of its e4ecution (c) f it was e4ecuted under duress+ or the influence of fear+ or threats (d) f it was procured by undue and improper pressure and influence+ on the part of the beneficiary+ or of some other person for his benefit (e) f the signature of the testator was procured by fraud or tric'+ and he did not intend that the instrument should be his will at the time of fi4ing his signature thereto.
3or holographic wills+ it is sufficient that they are truly dated+ although the date is not in its usual place. Such can even be in the main body.
f the will is e4ecuted in substantial compliance with the formalities of the law+ and the possibility of bad faith and fraud is obviated+ the will should be allowed probate. he grounds for disallowance are e4clusive. ts basis is !rticle ?,8+ *$$ )!a. De Pere: /". Tlete %1?. Separate wills may be probated %ointly especially where the two wills contain essentially the same provisions and pertain to property which in all probability are con%ugal in nature.
Art. 0>56 CC. Aills of aliens can be probated in the 2hilippines if it followed the formalities prescribed o 0y the laws of the place where he resides (le4 domicilii) o 0y the laws of his country (le4 nationalii) o 0y the laws of the 2hilippines Sunta /". Sunta %3?. Evidence necessary for the reprobate or allowance of wills o ue e4ecution of the will in accordance with the foreign laws o he testator has his domicile in the foreign country and not in the 2hilippines o he will has been admitted to probate in such country o he foreign tribunal is a probate court o he laws of a foreign country on procedure and allowance of wills
Sec. 7. *otice of hearing for allowance. Ahen a copy of such will and of the order or decree of the allowance thereof+ both duly authenticated+ are filed with a petition for allowance in the 2hilippines+ by the e4ecutor or other person interested+ in the court having %urisdiction+ such court shall fi4 a time and place for the hearing+ and cause notice thereof to be given as in case of an original
will presented for allowance.
he will probated abroad should be treated as if it were an original will that is presented for probate for the f irst time. hus+ publication and notice to interested persons are necessary
Sec. ,. Ahen will allowed+ and effect thereof. f it appears at the hearing that the will should be allowed in the 2hilippines+ the court shall so allow it+ and a certificate of its allowance+ signed by the %udge+ and attested by the seal of the court+ to which shall be attached a copy of the will+ shall be filed and recorded by the cler'+ and the will shall have the same effect as if originally proved and allowed in such court.
Len H G4e::i /. Manufacturer<" Life In"urance. !dministration of an estate e4tends only to the assets of the decedent found within the state or country where it was granted he administrator appointed in one state has no power over property in another state or country. 2rincipal administration administration granted at the decedent@s domicile. !ncillary administration any other administration proper whenever a person dies leaving in a country other than that of his domicile+ property to be administered in the nature of assets of the decedent+ liable for his individual debts or to be distributed among the heirs
Sec. =. Estate+ how administered. Ahen a will is thus allowed+ the court shall grant letters testamentary+ or letters of administration with the will anne4ed+ and such letters testamentary or of administration+ shall e4tend to all the estate of the testator in the 2hilippines. Such estate+ after the payment of %ust debts and e4penses of administration+ shall be disposed of according to such will+ so far a s such will may operate upon it and the residue+ if any+ shall be disposed of as is provided by law in cases of estates in the 2hilippines belonging to persons who are inhabitants of another state or country. =. A!9ini"tratr" an! E;ecutr" Rule 70 Letter" Te"ta9entar an! f A!9ini"tratin6 4en an! t 49 I""ue! Section 1. Who are incompetent to serve as eecutors or administrators.
*o person is competent to serve as administrator who (a) s a minor (b) s not a resident of the 2hilippines and (c) s in the opinion of the court unfit to e4ecute the duties of the trust by reason of drun'enness+ improvidence+ or want of understanding or integrity+ or by reason of conviction of an offense involving moral turpitude.
he court cannot add new causes for disDualification. hey are limited to the causes enumerated and have no authority to issue letters to a person because his interests are hostile to those of the estate and the legatees under the will. Ree" /. Ara:an". he administrator does not have to be an heir. "e may be a stranger to the estate Ta9buntin$ !e Ten$c /. Ta9buntin$. !n administrator should be able to devote his time and mind to the burden of his trust as administrator should not be in one place while the estate administered is in another place for he cannot then efficiently discharge his duties as administrator.
Ne$ati/e +actr" 1 . 5 ino rs 7. *on-residents ,. run'enness Something more gross than occasional into4ication must appear to preclude the appointment of the person entitled t is only when their habits of drin' are carried so far as to cloud he brain and wea'en their respect for honesty and integrity that the courts ta'e cogni#ance of their use of liDuor. Ahat is contemplated by this article is drun'enness that is e4cessive+ inveterate and continued use of into4icants+ to such an e4tent as to render the sub%ect of the habit as unsafe against to entrust with the care of property or the transaction of business. =. mprovidence efinition: want of care+ business capacity+ or foresight in the management of property which would be li'ely to render the estate and effects of interstate unsafe+ and liable to be lost or diminished in value. Symptoms: carelessness+ indifference+ prodigality+ wastefulness or negligence in reference to the care+ management and preservation of property J. Aant of >nderstanding t must amount to lac' of intelligence. I. Aant of ntegrity Inte$rit- soundness of moral privilege and character+ shown by a person@s dealing with others+ in ma'ing and performance of contracts+ in fidelity and honesty in the discharge of trust 6. 5oral urpitude •
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ari /. +lre" %71. Definitin- an act of baseness+ vileness or depravity in the private and social duties which a man owes others and society+ contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to %ustice+ honesty+ modesty or good morals.
Section 7. E4ecutor of E4ecutor not to administer estate. he e4ecutor of an e4ecutor shall not+ as such+ administer the estate of the first testator.
granted to some other person+ it may be granted to one or more of the principal creditors if competent and willing to serve (c) f there is no such creditor competent and willing to serve+ if may be granted to such other person as the court may select. Rule 6?.I provides an order of preference in the appointment of an administrator. Gn:ale" /. A$uinal! %18.he underlying assumption is that those who will reap the benefit of a wise+ speedy and economical administration of the estate or who will suffer the conseDuences of waste+ improvidence or mismanagement+ have the highest interest and most influential motive to administer the estate correctly. "owever+ the preference is not absolute. t may be disregarded if such action will be for the benefit of the estate he ,< day period may be waived under the permissive tone of paragraph (b) he creditor may file within a reasonable time after the death of the decedent in the estate proceedings+ and if none were had+ to petition for letters of administration. Matute /. CA %51. he appointment of a co-administrator is legally permissible and sanctioned in practice. B*e4t of 'inC persons who are entitled under the statute of distribution to the decedent@s property. !dministration may be granted to such other person as the court may appoint in case the persons who have the preferential right to be appointed are not incompetent or are unwilling to serve Arit of 5andamus will issue only to direct the court to appoint an administrator+ but not to direct the court who to appoint. !dministration e4tends only to the assets of a decedent found within the state or country where it was granted (Rule 6?.=).
Section ,. arried Women ma* serve. ! married woman may serve as e4ecutri4 or administratri4+ and the marriage of a single woman shall not affect her authority so to serve under a previous appointment. Section =. +etters ,estamentar* issued %hen %ill allo%ed. Ahen a will was been proved and allowed+ the court shall issue letters testamentary thereon to the person named as e4ecutor therein+ if o he is competent+ o accepts the trust+ and o gives bond as reDuired by the rules Section J. Where some co-eecutors disualified others ma* act. Ahen all of the e4ecutors named in a will cannot act because of o incompetency+ o refusal to accept the trust+ or o failure to give a bond+ on the part of one or more of them+ letters testamentary may issue to such of them as are competent+ accept and give bond+ and they may perform the duties and discharge the trust as reDuired by the will. Section I. When and to %hom letters of administration granted. f no e4ecutor is named in the will+ or the e4ecutor or e4ecutors are incompetent+ refuse the trust+ or fail to give bond+ or a person dies intestate+ administration shall be granted: (a) o the surviving husband or wife+ as the case may be+ or ne4t of 'in+ or both+ in the discretion of the court+ or to such person as such surviving husband or wife+ or ne4t of 'in+ reDuests to have appointed+ if competent or willing to serve (b) f such surviving husband and wife+ as the case may be+ or ne4t of 'in+ or to the person selected by them to be incompetent or unwilling+ or if the husband or widow+ ne4t of 'in+ neglects+ for ,< days after the death of the person to apply for administration or to reDuest that administration be
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=alut /". Pan. ! hearing is necessary to determine the suitability of a person to be appointed administrator by giving him the opportunity to prove his Dualifications and to afford oppositors to contest the petition. Even the directive of the testator in his will designating that a certain person should act as e4ecutor is not binding on the probate court and does not automatically entitle him to the issuance of letters testamentary. ! hearing has to be conducted to ascertain his fitness to act as e4ecutor.
Rule 71 O##"in$ I""uance f Letter" Te"ta9entar6 Petitin an! Cnte"t fr Letter" f A!9ini"tratin Section 1./pposition to issuance of letters testamentar*. Simultaneous petition for administration. !ny person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein as e4ecutors+ or any of them+ and the court+ after hearing upon notice+ shall pass upon the sufficiency of such grounds. ! petition may+ at the same time+ be filed for letters of administration with the will anne4ed.
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Section 7. Contents of petition for letters of administration ! petition for letters of administration must be filed by an interested person and must show+ so far is 'nown to the petitioner: (a) the %urisdictional facts (b) the names+ ages+ and residences of the heirs+ and the names and residences of the creditors+ of the decedent (c) the probable value and character of the property of the estate (d) the name of the person for whom letters of administration are prayed. 0ut no defect in the petition shall render void the issuance of letters of administration 'uri"!ictinal +act"- death of the decedent and of his residence within the country are foundation facts upon which all the subseDuent proceedings in the administration of the estate rest. )!a. De Manal /". CA. !rt. 777 of the $ivil $ode reDuiring a compromise between family members applies only to civil actions which are essentially adversarial and involve members of the same f amily. he petition for letters of administration is not adversarial. nterest is not a %urisdictional fact+ but a motion to dismiss (5) may be granted on the basis that a person filing a petition without any interest in the administration of the estate of the deceased lac's legal capacity (see Rule 1I+ Saguinsin v. Kindayag). Trillana /. Cri""t96 %3>. nterested person one who would be benefited by the estate (heir)+ or one who has a claim against the estate (creditor)+ this interest must be material and direct+ not merely indirect or contingent. )!a. De C4ua /. CA6 %10. nly an heir or creditor can oppose the issuance of letters of administration as they are the only ones who would be benefited by the estate. •
Section ,. Court to set time for hearing. Notice thereof. Ahen a petition for letters of administration is filed in the court having %urisdiction+ such court shall fi4 a time and place for hearing the petition+ and shall cause notice thereof to be given o to the 'nown heirs and creditors of the decedent+ and o to any other persons believed to have an interest in the estate+ o in the manner provided in Sections , and = of Rule 6I. • •
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0ut the %urisdiction of the court over the proceedings for the administration of the estate must be distinguished from the %urisdiction over the persons interested in the settlement of the estate. he latter is acDuired after proper notice to interested persons.
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Manal /". Pare!e". *otice is to bring all interested persons within the court@s %urisdiction so that the %udgment therein becomes binding on all the world Eu"ebi /. )al9re". Ahere no notice as reDuired by Rule 68., has been given to persons believed to have an interest in the estate of the deceased person+ the proceeding for the settlement of the estate is void and should be annulled. his reDuirement is essential to the validity of the proceeding in order that no person may be deprived of his right to property without due process of law.
Section =. /pposition to petition for administration. !ny interested person may+ by filing a written opposition+ contest the petition on the ground of o the incompetency of the person for whom letters are prayed therein+ or o on the ground of the contestant@s own right to the administration+ and may pray that letters issue o to himself+ or o to any competent person or persons named therein. •
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Section J. Hearing and order for letters to issue. !t the hearing of the petition+ it must first be shown that notice has been given as herein-above reDuired+ and thereafter the court shall hear the proofs of the parties in support of their respective allegations+ and if satisfied o that the decedent left no will+ or o that there is no competent and willing e4ecutor+ it shall order the issuance of letters of administration to the party best entitled thereto. •
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Section I. When letters of administration granted to an* ualified applicant. Ketters of administration may be granted to any Dualified applicant+ though it appears that there are other competent persons having better right to the administration+ if such persons fail to appear when notified and claim the issuance of letters themselves. 5ore *otes on $o-!dministrators:
wo or more administrators may be appointed for an estate+ especially when it is large and its administration comple4. $o-administration however should be resorted to in e4ceptional cases only because it may lead to conflict between or among the co-administrators and diffusion of responsibility.
he appointment of co-administrators has been upheld for various reasons: o have the benefit of their %udgment and perhaps at all time to have different interests represented Ahere %ustice and eDuity demand that opposing parties or factions be represented in the management of the estate of the deceased Ahere the estate is large+ or from any cause+ an intricate one to settle o have all interested parties satisfied and the representatives to wor' in harmony for the best interests of the estate and Ahen a person entitled to the administration of the estate desires to have another competent person associated with him in the office. Rule 08 & S#ecial A!9ini"tratr
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Sub%ect to the limitation above+ the appointment of a special administrator lies within the discretion of the court. *o temporary administration can be granted where there is a n e4ecutor capable of acting. Garcia +ule /". CA. he discretion to appoint a special administrator or not lies in the probate court. *othing is wrong for the %udge to consider the order of preference in the appointment of a regular administrator in appointing a special administrator. !fter all+ the consideration that overrides all others in this respect is the beneficial interest of the appointee in the estate of the decedent.
4 i" t be a##inte! PiBuan /. De Gurrea %55. he preference under Rule 6?.I refers to the appointment of a regular administrator+ and that the order appointing the latter lies within the discretion of the probate court and is not appealable. he appointment of a special administrator is temporary and subsists only until a regular administrator is appointed. Garcia +ule /. CA.he appointing court does not determine who are entitled to share in the estate of the decedent+ but who is entitled to the administration. he issue of heirship is determined in the decree of distribution+ and the findings of the court on the relationship of the parties in the administration+ as to be the basis of distribution. Crna /. CA. he e4ecutri4@s choice of Special !dministrator+ considering her own inability to serve and the wide latitude of discretion given her by the testratri4 in her will+ is entitled to the highest consideration. Since the wife owns N of the con%ugal properties+ and she+ too+ is a compulsory heir of her husband+ to deprive her of any hand in the administration of the estate prior to the probate of the will would be unfair to her proprietary interests. •
Section 1. Appointment of special administrator Ahen there is a delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will+ the court may appoint a special administrator to ta'e possession and charge of the estate of the deceased until the Duestion causing the delay are decided and e4ecutors or administrators are appointed. •
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S#ecial A!9ini"tratr & a representative of the decedent appointed by the probate court to care for and preserve his estate until an e4ecutor or general administrator is appointed he paramount consideration is always the best interest of the estate Ren" /. Santia$ %?1. he appointment of a regular administrator is necessary for the prompt settlement and distribution of the estate. here are important duties devolving on a regular administrator which a special administrator cannot perform+ and there are many actions to be ta'en by the court which could not be accomplished before a regular administrator is appointed. 2rincipal ob%ect of appointment of temporary administrator is to preserve the estate until it can pass into hands of persons fully authori#ed to administer it for the benefit of the creditors and the heirs. De Gu:9an /. An$ele". *otice through publication of the petition is a %urisdictional reDuirement even in the appointment of a special administrator.
4en a S#ecial A!9ini"tratr 9a be a##inte! he appointment of a special administrator is %ustified when there is a delay in granting letters testamentary or of administration because of o !n appeal from the allowance or disallowance of a will+ or o Some other cause (ground is broad enough to include: ) $ontest as to the will is being carried on in the same or in another court+ or Ahere there is a pending appeal as to the proceeding on the removal of an e4ecutor or administrator+ or n cases where the parties cannot agree among themselves •
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Section 7. 0o%ers and duties of a special administrator. Such special administrator shall ta'e possession and charge of the goods+ chattels+ rights+ credits+ and estate of the deceased and preserve the same for the e4ecutor or administrator afterwards appointed+ and for that purpose may commence and maintain suits as administrator. "e may sell only such perishable and other property as the court orders sold. ! special administrator shall not be liable to pay the debts of the deceased unless so ordered by the court. •
!lthough no period is fi4ed for the administrator to submit an inventory of the estate+ it must be done within a reasonable time+ if not as soon as practicable+ to protect the estate and to protect the heirs of the deceased (infer from rule ?<.7). ! contrary rule would open the door to irregularities and mischief which may redound to the detriment of the estate and of the heirs entitled to distribution.
Section ,. When the po%ers of special administrator cease. ,ransfer of effects. 0ending suits.
Ahen letters testamentary or of administration are granted to the estate of the deceased+ the powers of the special administrator shall cease+ and he shall forthwith deliver to the e4ecutor or administrator the goods+ chattels+ money and estate of the deceased in his hands. he e4ecutor or administrator may prosecute final %udgment suits commenced by such special administrator. •
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Garcia /. +lre". !n order appointing a special administrator is interlocutory in nature+ a mere incident to the proceedings. he court ma'ing the appointment retains control to modify+ rescind+ or revo'e the same on sufficient grounds before final %udgment. Rule >816 E"ler /. Ta!. *o appeal lies from the appointment of a special administrator. Rule 0> & =n!" f E;ecutr" an! A!9ini"tratr"
Section 1. ond given before issuance of letters. Amount. Conditions. 0efore an e4ecutor or administrator enters upon the e4ecution of his trust+ and letters testamentary or of administration issue+ he shall give a bond+ in such sum as the courts directs+ conditioned as follows: (a) o ma'e and return to the court+ within , months+ a true and complete in/entr of all the goods+ chattels+ rights+ credits+ and estate of the deceased which shall come to his possession or 'nowledge or to the possession of any other person for him (see Rule ?,.1) (b) o a!9ini"ter according to these rules+ and+ if an e4ecutor+ according to the will of the testator+ all goods+ chattels+ rights+ credits+ and estate which shall come to his possession or 'nowledge or to the possession of any other person for him and fr9 t4e #rcee!" t #a an! !i"c4ar$e all !ebt"6 le$acie"6 an! c4ar$e" on the same+ or such dividends thereon as shall be decreed by the court (c) o render a true and %ust accunt of his administration to the court within 1 year+ and at any other time when reDuired by the court (see Rule ?J.?) (d) o perform all r!er" f t4e curt by him to be performed. •
Lu:n Suret /. Juebrar. he terms and effectivity of the bond does not depend on the payment of the premium and does not e4pire until the administration is closed. !s long as the probate court retains %urisdiction of the estate+ the bond contemplates a continuing liability. !nd for long as the administrator hold his position+ the surety@s liability subsists.
Section 7. ond of eecutor %here directed in %ill. When further bond is reuired. f the testator in his will directs that the e4ecutor serve without a bond+ or with only his individual bond+ he may be allowed by the court to give bond in such some and with such surety as the court approves conditioned only to pay the debts of the
testator but the court may reDuire of the e4ecutor a further bond in case of a change in his circumstances+ or for other sufficient cause+ with the condition named in the preceding section. Section ,. onds of joint eecutors and administrators. Ahen two or more persons are appointed administrators or e4ecutors the court may ta'e separate bonds from each or a %oint bond from all. Section =. ond of a special administrator. ! special administrator before entering upon the duties of his trust shall give a bond+ in such sum as the court directs+ conditioned that he will ma'e and return a true inventory of the goods+ chattels+ rights+ credits+ and estate which shall come to his possession or 'nowledge+ and that he will truly account for such as are received by him when reDuired by the court+ and will deliver the same to the person appointed e4ecutor or administrator+ or such other person as may be authori#ed to receive them.
! bond is necessary before an e4ecutor or administrator enters his trust. o f the testator provides that the e4ecutor shall serve without a bond+ the e4ecutor will still give a bond+ but the only condition which attaches to the bond is the payment of the debts of the testator. !dditional bond may be reDuired in the following cases o Rule ?1.7+ when there is a change in circumstances of the e4ecutorLadministrator or for other sufficient cause o Rule ?8.6c+ an additional bond may be reDuired by the court in case of sale+ mortgage or encumbrance of the property of the estate conditioned that the administratorLe4ecutor account for the proceeds of the sale or encumbrance
R(LE 02. RE)OCATION O+ ADMINISTRATION6 DEAT@6 RESIGNATION6 AND REMO)AL O+ EKEC(TORS AND ADMINISTRATORS Sec. 1. !dministration revo'ed if will discovered 2roceedings thereupon. f after letters of administration have been granted on the estate of a decedent as if he had died intestate+ his will is proved and allowed by the court+ the letters of administration shall be revo'ed and all powers thereunder cease+ and the administrator shall forthwith surrender the letters to the court+ and render his account within such time as the court directs. 2roceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided. Rule n Prece!ence f Prbate f ill
f intestate proceedings had already been instituted+ the administrator must: a. render a final account b. turn over the estate to the e4ecutor named in the will (riarte / C+I. his is without pre%udice to the proceedings continuing as intestacy.
Cn/er"in f an Inte"tate int Te"tate Prcee!in$ Ren" /. Santia$. Ahether the intestate proceeding already commenced should be discontinued and a new proceeding under a separate number and title should be discontinued and a new proceeding under a separate number is entirely a matter of form and lies within the sound discretion of the court. A!/incula / Te!r. he mere discovery of a document purporting to be a will after the appointment of an administrator does not ipso facto nullify the letters of administration or even authori#e their revocation until the will has been proved and allowed. Sec. 7. $ourt may remove or accept resignation of e4ecutor or administrator 2roceedings upon death+ resignation+ or removal. f an e4ecutor or administrator neglects to render his account and settle the estate according to law+ or to perform an order or %udgment of the court+ or a duty e4pressly provided by these rules+ or absconds+ or becomes insane+ or otherwise incapable or unsuitable to discharge the trust+ the court may remove him+ or+ in its discretion+ may permit him to resign. Ahen an e4ecutor or administrator dies+ resigns+ or is removed the remaining e4ecutor or administrator may administer the trust alone+ unless the court grants letters to someone to act with him. f there is no remaining e4ecutor or administrator+ administration may be granted to any suitable person. Pur#"e f A!9ini"tratin 2urpose O a. liDuidation of the estate b. distribution of the residue among the heirs and legatees KiDuidation O determination of all the assets of the estate and payment of all debts and e4penses Lu:n Suret / Juebrar. !pproval of the pro%ect of partition does not necessarily terminate administration . Grun!" fr Re9/al *eglects to render an account and settle the estate according to law *eglects to perform an order or %udgment of the court *eglects to perform a duty e4pressly provided by these rules !bsconds+ or becomes insane+ or otherwise incapable or unsuitable to discharge the trust. Te9#rar Ab"ence nt a $run! fr Re9/al . ! temporary residence outside if the state+ In re McKnight’s Will maintained for the benefit of the health of the e4ecutor@s family+ is not such a removal from the state as to necessitate his removal as e4ecutor. emporary absence from the state on account of ill health+ or on account of business+ or
for the purpose of travel or pleasure+ would not necessarily establish the fact that an e4ecutor has removed from the state+ within the intent of the statute. Di"cretin in t4e Re9/al f A!9ini"tratr De$ala / Ceni:a an! (9#i$* Men!ila / CA. he removal of an administrator under Section 7 of Rule ?7 lies within the discretion of the court appointing him. Grun!" Enu9erate! nt E;clu"i/e Cbarrubia" / Di:n. Ahere the appointment of an administrator was procured through false representations+ the power of the probate court to revo'e the appointment is beyond Duestion. his is so because the position of administrator is one of confidence. T4ere 9u"t be E/i!ence t 'u"tif Re9/al Gabriel / CA %12. ! mere importunity by some of the heirs+ there being no factual and substantial bases therefore+ is not adeDuate ratiocination for the removal of private respondent. Suffice it to say that the removal of an administrator does not lie on the whims+ caprices and dictates of the heirs or beneficiaries of the estate. Sec. ,. !cts before revocation+ resignation+ or removal to be valid. he lawful acts an e4ecutor or administrator before the revocation of his letters testamentary or of administration+ or before his resignation or removal+ shall have the li'e validity as if there had been no such revocation+ resignation+ or removal. )!a. !e =acalin$ / La$u!a %7,. he acts of an administrator done in good faith prior to the revocation of the letters will be protected+ and similar protection will be e4tended to rights acDuired under a previous grant of administration. Sec. =. 2owers of new e4ecutor or administrator. - Renewal of license to sell real estate. he person to whom letters testamentary or of administration are granted after the revocation of former letters+ or the death+ resignation+ or removal of a former e4ecutor or administrator+ shall have the li'e powers to collect and settle the estate not administered that the former e4ecutor or administrator had+ and may prosecute or defend actions commenced by or against the former e4ecutor or administrator+ and have e4ecution on %udgments recovered in the name of such former e4ecution or administrator. !n authority granted by the court to the former e4ecutor or administrator for the sale or mortgage of real estate may be renewed in favor of such person without further notice or hearing. =rr9e / =rr9e %33. he order of removal is appealable.
R(LE 0, IN)ENTORY AND APPRAISAL* PRO)ISION +OR S(PPORT O+ +AMILY Sec. 1. nventory and appraisal to be returned within three months. Ahen three (,) months after his appointment every e4ecutor or administrator shall return to the court a true inventory and appraisal of all the real and personal estate of the deceased which has come into his possession or 'nowledge. n the appraisement of such estate+ the court may order one or more of the inheritance ta4 appraisers to give his or their assistance.
Sebial /. Sebial. he three-month period is not mandatory. he fact that an inventory was filed after the three-month period would not deprive the court of %urisdiction to approve it but may be grounds for the removal of the administrator. 2owers of the probate court: a. supervision and control over the powers of the deceased. b. e te rmi na ti on of wh at prop er tie s+ ri ght s and cre di ts of the deceased should e included in the inventory nherent duties of the probate court: a. see that the inventory submitted by the administrator contains all the properties+ rights and credits which the law reDuires the adm@r to set out b. should an heir or interested person call the court@s attention to the fact that certain properties+ rights+ etc. have been left out of the inventory+ the court must hear the observations
Sec. 7. $ertain articles not to be inventoried. he wearing apparel of the surviving husband or wife and minor children+ the marriage bed and bedding+ and such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased+ under the direction of the court+ shall not be considered as assets+ nor administered as such+ and shall not be included in the inventory. Sec. ,. !llowance to widow and family. he widow and minor or incapacitated children of a deceased person+ during the settlement of the estate+ shall receive therefrom+ under the direction of the court+ such allowance as are provided by law.
=ac4rac4 / Seifert %?1: he sale of the estate is unnecessary when the cash in the possession of the administratri4 is sufficient for the monthly allowance of the latter+ and the lower court may not order said sale especially when the heirs are opposed to it. !llowance for support is not limited to the minor or incapacitated children of the deceased. >nder !rt 1,, 3$ (1?? $$) during the liDuidation of the con%ugal partnership+ the deceased@s legitimate spouse and children+
regardless of age+ civil status or gainful employment+ are entitled to provisional support from the estate. his is because the right and duty to support subsist beyond the age of ma%ority. he allowance does not e4tend to grandchildren. R(LE 0? GENERAL POERS AND D(TIES O+ EKEC(TORS AND ADMINISTRATORS
Sec. 1. E4ecutor or administrator to have access to partnership boo's and property "ow right enforced. he e4ecutor or administrator of the estate of a deceased partner shall at all times have access to+ and may e4amine and ta'e copies of+ boo's and papers relating to the partnership business+ and may e4amine and ma'e invoices of the property belonging to such partnership and the surviving partner or partners+ on reDuest+ shall e4hibit to him all such boo's+ papers+ and property in their hands or control. n the written application of such e4ecutor or administrator+ the court having %urisdiction of the estate may order any such surviving partner or partners to freely permit the e4ercise of the rights+ and to e4hibit the boo's+ papers+ and property+ as in this section provided+ and may punish any partner failing to do so for contempt. Sec. 7. E4ecutor or administrator to 'eep buildings in repair. !n e4ecutor or administrator shall maintain in tenantable repair the houses and other structures and fences belonging to the estate+ and deliver the same in such repair to the heirs or devisees when directed so to do by the court. Sec. ,. E4ecutor or administrator to retain whole estate to pay debts+ and to administer estate not willed. !n e4ecutor or administrator shall have the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and the e4penses of administration.
Car /. CA. !n !dministrator cannot e4ercise the right of legal redemption as this is not one of the powers of administration. E"tate f Ola/e /. Ree" %0,. Ahere the estate is already the sub%ect of testateLintestate proceedings+ the adm@r cannot enter into any transaction without prior court approval. E"tate f Rui: %15. he right of the adm@r to the possession and management of the properties of the deceased is not absolute it can only be e4ercised so long as it is necessary for the payment of debts and e4penses of administration. Rule 03 Accunt Liabilit an! C9#en"atin f E;ecutr" an! A!9ini"tratr"
Sec. 1. E4ecutor or administrator chargeable with all estate and income.
E4cept as otherwise e4pressly provided in the following sections+ every e4ecutor or administrator is chargeable in his account with the whole of the estate of the deceased which has come into his possession+ at the value of the appraisement contained in the inventory with all the interest+ profit+ and income of such estate and with the proceeds of so much of the estate as is sold by him+ at the price at which it was sold. Sec. 7. *ot to profit by increase or lose by decrease in value. *o e4ecutor or administrator shall profit by the increase+ or suffer loss by the decrease or destruction+ without his fault+ of any part of the estate. "e must account for the e4cess when he sells any part of the estate for more than appraisement+ and if any is sold for less than the a ppraisement+ he is not responsible for the loss+ if the sale has been %ustly made. f he settles any claim against the estate for less than its nominal value+ he is entitled to charge in his account only the amount he actually paid on the settlement.
*o e4ecutor or administrator shall profit by the increase or lose by the decrease+ wit4ut 4i" fault6 of any part of the estate.
Sec. ,. Ahen not accountable for debts due estate. *o e4ecutor or administrator shall be accountable for debts due the deceased which remain uncollected without his fault. Sec. =. !ccountable for income from realty used by him. f the e4ecutor or administrator uses or occupies any part of the real estate himself+ he shall account for it as may be agreed upon between him and the parties interested+ or ad%usted by the court with their assent and if the parties do not agree upon the sum to be allowed+ the same may be ascertained by the court+ whose determination in this respect shall be final. f the e4ecutor or administrator uses any part of the real estate+ he shall account for it: (a) as agreed between him and interested parties+ (b) as ad%usted by court with their assent+ and (c) if the parties do not agree+ it will be ascertained by the court with finality. Sec. J. !ccountable if he neglects or delays to raise or pay money. Ahen an e4ecutor or administrator neglects or unreasonably delays to raise money+ by collecting the debts or selling the real or personal estate of the deceased+ or neglects to pay over the money he has in his hands+ and the value of the estate is thereby lessened or unnecessary cost or interest accrues+ or the persons interested suffer loss+ the same shall be deemed waste and the damage sustained may be charged and allowed against him in his account+ and he shall be liable therefor on his bond.
E4ecutor or administrator is accountable if he neglects or delays to raise or pay the money he has on his hands. he waste and the damage sustained by the estate may be charged and allowed against the administrator in his account. Picar!al / Lla!a" %57. Responsibility for damages cannot be shifted to the intestate estate.
Sec. 6. Ahat e4penses and f ees allowed e4ecutor or administrator. *ot to charge for services as attorney. $ompensation provided by will controls unless renounced !n e4ecutor or administrator shall be allowed the necessary e4penses in the care+ management+ and settlement of the estate+ and for his services+ four pesos per day for the time actually and necessarily employed+ or a commission upon the value of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts+ e4penses+ legacies+ or distributive shares+ or by delivery to heirs or devisees+ of two per centum of the first five thousand pesos of such value+ one per centum of so much of such value as e4ceeds five thousand pesos and does not e4ceed thirty thousand pesos+ one-half per centum of so much of such value as e4ceeds thirty thousand pesos and does not e4ceed one hundred thousand pesos and one-Duarter per centum of so much of such value as e4ceed one hundred thousand pesos. 0ut in any special case+ where the estate is large+ and the settlement has been attended with great difficulty+ and has reDuired a high degree or capacity on the part of the e4ecutor or administrator+ a greater sum may be allowed. f ob%ection to the fees allowed be ta'en+ the allowance may be ree4amined on appeal. f there are two or more e4ecutors or administrators+ the compensation shall be apportioned among them by the court according to the services actually rendered by them respectively. Ahen the e4ecutor or administrator is an attorney+ he shall not charge against the estate any professional fees for legal services rendered by him. Ahen the deceased by will ma'es some other provision for the compensation of his e4ecutor+ that provision shall be a full satisfaction for his services unless by a written instrument filed in the court he renounces all claim to the compensation provided by the will. Sec. I. Ahen allowed money paid as costs. he amount paid by an e4ecutor or administrator for costs awarded against him shall be allowed in his administration account+ unless it appears that the action or proceeding in which the costs are ta4ed was prosecuted or resisted without
%ust cause+ and not in good faith. C9#en"atin f an a!9ini"tratr 2=.<< per day Bfor the time actually and necessarily employedC by him as such administrator or a Bcommission upon the value of so much of the estate as comes into his possession and finally disposed of by himC or 7P of the first 2J<<<+ 1P in e4cess of 2J<<< up to 2,<<<<+ 1L7P in e4cess of 2,<' up to 21<<' and QP in e4cess of 21<<'. ! greater sum may be allowed: (a) where the estate is large+ (b) the settlement has been attended with great difficulty+ and (c) has reDuired a high degree of capacity on the part of the e4ecutor.
he court may e4amine the e4ecutor or administrator upon oath with respect to every matter relating to any account rendered by him+ and shall so e4amine him as to the correctness of his account before the same is allowed+ e4cept when no ob%ection is made to the allowance of the account and its correctness is satisfactorily established by competent proof. he heirs+ legatees+ distributees+ and creditors of the estate shall have the same privilege as the e4ecutor or administrator of being e4amined on oath of any matter relating to an administration.
Nece""ar E;#en"e" @er9an" /. Aba!a. *ecessary e4penses of administration are such e4penses as are entailed for the preservation and productivity of the estate and for its management for purposes of liDuidation+ payment of debts+ and distribution of the residue among persons entitled thereto. Gu:9an /. DeGu:9anCarill %70. E4penses for the renovation and improvement of the family home to preserve the house and maintain the family@s social standing are allowable as legitimate administration e4pense. Attrne<" +ee" !dministrator may not recover attorney@s fees from the estate. !ttorney@s fees may be allowed as e4penses of administration. f the administrator himself is the counsel for the heirs+ it is the latter who must pay therefore. "eirs and other interested persons may inDuire into the value of the services of the lawyer and the necessity of its employment. Sec. ?. Ahen e4ecutor or administrator to render account. Every e4ecutor or administrator shall render an account of his administration within one (1) year from the time of receiving letters testamentary or of administration+ unless the court otherwise directs because of e4tensions of time for presenting claims against+ or paying the debts of+ the estate+ or for disposing of the estate and he shall render such further accounts as the court may reDuire until the estate is wholly settled.
Sec. 1<. !ccount to be settled on notice. 0efore the account of an e4ecutor or administrator is allowed+ notice shall be given to persons interested of time and place of e4amining and allowing the same and such notice may be given personally to such persons interested or by advertisement in a newspaper or newspapers+ or both+ as the court directs. Sec. 11. Surety on bond may be party to accounting. >pon the settlement of the account of an e4ecutor or administrator+ a person liable as surety in respect to such account may+ upon application+ be admitted as party to such accounting. C. Settle9ent f t4e E"tate & !eter9inatin f #r#ert f t4e e"tate an! clai9" a$ain"t it R(LE 05 Clai9" a$ain"t E"tate Sec. 1. *otice to creditors to be issued by court. mmediately after granting letters testamentary or of administration+ the court shall issue a notice reDuiring all persons having money claims against the decedent to file them in the office of the cler' of said court.
Every e4ecutor or administrator shall render an account of his administration within one (1) year from the time of receiving letters testamentary or of administration. '"n / '"n %5>. he duty of an administrator to render an account is not a mere incident of an administration proceeding which can be waived or disregarded when the same is terminated+ but that it is a duty that has to be performed and duly acted upon by the court before administration is finally ordered closed and terminated.
Sec. 8. E4amination on oath with respect to account.
! hearing is usually held before an administrator@s account is approved+ especially if an interested party raises ob%ections to certain items in the accounting report. Gu:9an /. DeGu:9anCarill %70. ppositors may present proof to rebut the administrator@s evidence in support of his accounts.
E"tate f Ola/e /. Ree" %0,. 2urpose of presentation of claims against estate is to protect the estate of the deceased person. !lso+ to apprise the administrator and the probate court of the e4istence of the claim so that a proper and timely arrangement may be made f or its payment in full or pro rata portion in the due course of the administration. ! compromise in a separate civil case which is an action for collection against estate is null and void the claim must be filed with the probate court within the period prescribed.
Sec. 7. ime within which claims shall be filed. n the notice provided in the preceding section+ the court shall state the time
for the filing of claims against the estate+ which shall not be more than twelve (17) nor less than si4 (I) months after the date of the first publication of the notice. "owever+ at any time before an order of distribution is entered+ on application of a creditor who has failed to file his claim within the time previously limited+ the court may+ for cause shown and on such terms as are eDuitable+ allow such claim to be f iled within a time not e4ceeding one (1) month. T4e Statute f Nnclai9" he period fi4ed by the rule where certain creditors of a deceased person must present their claims for e4amination and allowance. 2robate court is permitted to set the period provided it is not less than I months nor more than 17 months after the date of publication of notice. Sant" /. Manaran$. 2urpose: to insure a speedy settlement of af fairs of the deceased and early delivery of the property to the person entitled to the same. E;ten"in f Peri! !t any time before an order of distribution is entered+ on application of a creditor who has failed to file his claim within the time previously limited+ the court may+ for cause shown and on such terms as are eDuitable+ allow such claim to be filed within a time not e4ceeding one (1) month. Ec4au" / =lanc. 2eriod prescribed in the notice to creditors is not e4clusive money claims against the estate may be allowed anytime before an order of distribution is entered at the discretion of the court for cause and upon such terms as are eDuitable. Pre"entatin f Mne clai9 9a be wai/e! I$naci / Pa9#an$a =u" C.6 Inc %57. hough presentment of probate claims is imperative+ it is generally understood that it may be waived by the estate@s representative. !nd waiver is to be deduced from the administrator@s acts and conduct. $ertainly the failure to plead the statute of non-claims+ the active participation and resistance to such claim+ in the civil suit+ amount to such waiver. Sec. ,. 2ublication of notice to creditors. Every e4ecutor or administrator shall+ immediately after the notice to creditors is issued+ cause the same to be published three (,) wee's successively in a newspaper of general circulation in the province+ and to be posted for the same period in four public places in the province and in two public places in the municipality where the decedent last resided. Sec. =. 3iling copy of printed notice. Aithin ten (1<) days after the notice has been published and posted in accordance with the preceding section+ the e4ecutor or administrator shall file or cause to be filed in the court a printed copy of the notice accompanied with an affidavit setting forth the dates of the first and last publication thereof and the name of the newspaper in which the same is printed.
Sec. J. $laims which must be filed under the notice. - f not filed+ barred e4ceptions. !ll claims for money against the decedent+ arising from contract+ e4press or implied+ whether the same be due+ not due+ or contingent+ all claims for funeral e4penses and e4penses for the last sic'ness of the decedent+ and %udgment for money against the decedent+ must be filed within the time limited in the notice otherwise they are barred forever+ e4cept that they may be set forth as counterclaims in any action that the e4ecutor or administrator may bring against the claimants. Ahere an e4ecutor or administrator commences an action+ or prosecutes an action already commenced by the deceased in his lifetime+ the debtor may set forth by answer the claims he has against the decedent+ instead of presenting them independently to the court as herein provided+ and mutual claims may be set off against each other in such action and if final %udgment is rendered in favor of the defendant+ the amount so determined shall be considered the true balance against the estate+ as though the claim had been presented directly before the court in the administration proceedings. $laims not yet due or contingent+ may be approved at their present value. T#e f clai 9" reuire ! t be file!a. nly money claims (that is any money+ debt+ or interest thereon)+ contracted by the decedent before his death may be presented in the testate or intestate proceedings. E4ception: 3uneral e4penses and e4penses of the last sic'ness of the decedent. b. udgment for money against decedent must be presented as a claim against the estate+ where %udgment debtor dies before levy on e4ecution of his properties. c. Pine!a /. C+I. $laims for ta4es due and assessed after death need not be presented in the form of a claim. $ourt may direct e4ecutor or administrator to pay such ta4es. 2eriod runs against all claimants+ hence claims not presented within the time provided in the notice are barred. M!ificatin f enu9eratin Sec. J+ rule ?I provides an e4clusive enumeration of what claims may be filed against the estate. !ccording to the ld rules+ money claims arising from delict do not form part of this enumeration. "ence+ there could be no legal basis in treating an a ction e4 delicto as an ordinary contractual money claim referred to in Sec. 71+ rule , and allowing it to survive by filing a claim therefore before the estate of the deceased accused. Actin" w4ic4 Sur/i/e Deat4 he following cases survive the death of a party: an action to recover (1) contractual money claims+ (7) real or personal property or an interest therein+ from the estate+ or to enforce a lien therein+ and (,) action to recover
damages for an in%ury to property+ real or personal. Such may be commenced against the administrator under rule ?6. nly when there is a f avorable %udgment that the %udgment shall be enforced in the manner provided in these rules for prosecuting claims against the estate of a deceased person. Din$la"an / An$ C4ia. he probate court case may be held in abeyance pending determination of an ordinary action wherein an e4ecutor or administrator is made a party.
Si9#le 9ne clai9" n a##eal an! !efen!ant !ie" Pare!e" /. Ma %7?. f defendant dies while appeal is pending+ appeal continues and after final %udgment+ a claim may be filed within time limits. P En$ Cn$ /. @errera %75.f death occurred prior to the levy+ %udgment creditor must file claim in probate court. Manalan"an /. Ca"tane!a %70. !ction for foreclosure of mortgage survives and may be enforced by writ of e4ecution against the administrator without filing a claim in probate court. Tanc4uec /. A$uilar %78. !ction for e%ectment may be prosecuted despite the death of defendant and may continue until final %udgment in which the Duestion of damages should be ad%udicated. Sala:ar /. CA %13. >npaid rentals are not simple money claims but may be the measure of the determination of damages. Rule inclu!e" ab"lute an! cntin$ent clai9" !bsolute claim is such claim as+ if contested between living person+ would be proper sub%ect of immediate legal action and would supply a basis of a %udgment for a sum certain. Ga"ell H C. /. Tan Sit. $ontingent claim is one+ by which+ by its nature is necessarily dependent upon an uncertain event for its e4istence and claim+ and its validity and enforceability depending upon an uncertain event. E4amples of the latter are: surety of a contract+ indorser of a negotiable instrument+ etc. 9different types of claims against the estate Sec. I. Solidary obligation of decedent. Ahere the obligation of the decedent is solidary with another debtor+ the claim shall be filed against the decedent as if he were the only debtor+ without pre%udice to the right of the estate to recover contribution form the other debtor. n a %oint obligation of the decedent+ the claim shall be confined to the portion belonging to him.
PN= /. In!e#en!entPlanter" A""ciatin6 Inc %0,. Ahere the obligation of the decedent is solidary with another debtor+ the claim shall be filed against the decedent as if he were the only debtor+ without pre%udice to the right of the estate to recover contribution from the other debtor. n a %oint obligation of the decedent+ the claim shall be confined to the portion belonging to him.
Sec. 6. 5ortgage debt due from estate. ! creditor holding a claim against the deceased secured by mortgage or other collateral security+ may abandon the security and prosecute his claim in the manner provided in this rule+ and share in the general distribution of the assets of the estate or he may foreclose his mortgage or reali#e upon his security+ by action in court+ ma'ing the e4ecutor or administrator a party defendant+ and if there is a %udgment for a deficiency+ after the sale of the mortgaged premises+ or the property pledged+ in the foreclosure or other proceeding to reali#e upon the security+ he may claim his deficiency %udgment in the manner provided in the preceding section or he may rely upon his mortgage of other security alone+ and foreclose the same at any time within the period of the statute of limitations+ and in that event he shall not be admitted as a creditor+ and shall receive no share in the distribution of the other assets of the estate but nothing herein contained shall prohibit the e4ecutor or administrator from redeeming the property mortgaged or pledged+ by paying the debt for which it is held as security+ under the direction of the court+ if the court shall ad%udge it to be for the best interest of the estate that such redemption shall be made.
O"ri / San A$u"tin %>,. ! creditor holding a claim against the deceased secured by mortgage or other collateral security+ (1) may abandon the security and prosecute his claim in the manner provided in this rule+ and share in the general distribution of the assets of the estate (7) or he may foreclose his mortgage %udicially and claim his deficiency from the estate (,) or he may foreclose e4tra%udicially and rely on his security alone 0ut the law does not provide that he may have both remedies. f he fails in one+ he fails utterly.
N ri$4t t clai9 !eficienc un!er t4e t4ir! #tin he ,rd option: he mortgagee may rely upon his mortgage or other security alone+ and foreclose the same at any time within the period of the statute of limitations without right to file a claim for any deficiency. Pere: / PN= %55. he third mode includes e4tra%udicial foreclosure sales+ the result of which is that the creditor waives any further deficiency claim. Sec. ?. $laim of e4ecutor or administrator against an estate. f the e4ecutor or administrator has a claim against the estate he represents+ he shall give notice thereof+ in writing+ to the court+ and the court shall appoint a special administrator+ who shall+ in the ad%ustment of such claim+ have the same power and be sub%ect to the same liability as the general administrator or e4ecutor in the settlement of other claims. he court may order the e4ecutor or administrator to pay to the special administrator necessary funds to defend such claim. Sec. 8. "ow to file a claim. $ontents thereof *otice to e4ecutor or administrator. ! claim may be filed by delivering the same with the necessary vouchers to the cler' of court and by serving a copy thereof on the e4ecutor or
administrator. f the claim be founded on a bond+ bill+ note or any other instrument+ the original need not be filed+ but a copy thereof with all indorsements shall be attached to the claim and filed therewith. n demand+ however+ of the e4ecutor or administrator+ or by order of the court or %udge+ the original shall be e4hibited+ unless it be lost or destroyed+ in which case the claimant must accompany his claim with affidavit or affidavits containing a copy or particular description of the instrument and stating its loss or destruction. Ahen the claim is due+ it must be supported by affidavit stating the amount %ustly due+ that no payments have been made thereon which are not credited+ and that there are no offsets to the same+ to the 'nowledge of the affiant. f the claim is not due+ or is contingent+ when filed+ it must also be supported by affidavit stating the particulars thereof. Ahen the affidavit is made by a person other than the claimant+ he must set forth therein the reason why it is not made by the claimant. he claim once filed shall be attached to the record of the case in which the letters testamentary or of administration were issued+ although the court+ in its discretion+ and as a matter of convenience+ may order all the claims to be collected in a separate action.
a. b.
c. d. e.
"ow to file a claim: ! claim may be filed by delivering the same with the necessary vouchers to the cler' of court and by serving a copy thereof on the e4ecutor or administrator. f the claim be founded on a bond+ bill+ note+ or any other instrument+ the original need not be filed+ but a copy thereof with all indorsements shall be attached to the claim and filed therewith. Ahen the claim is due+ it must be supported by affidavit stating the amount %ustly due+ that no payments have been made thereon which are not credited+ and that there are no offsets to the same+ to the 'nowledge of the affiant. f the claim is not due+ or is contingent+ when filed+ it must also be supported by affidavit stating the particulars thereof. he claim once filed shall be attached to the record of the case in which the letters testamentary or of administration were issued.
Sec. 1<. !nswer of e4ecutor or administrator ffsets. Aithin fifteen (1J) days after service of a copy of the claim on the e4ecutor or administrator+ he shall file his answer admitting or denying the claim specifically+ and setting forth the substance of the matters which are relied upon to support the admission or denial. f he has no 'nowledge sufficient to enable him to admit or deny specifically+ he shall state such want of 'nowledge. he e4ecutor or administrator in his answer shall allege in offset any claim which the decedent before death has against the claimant+ and his failure to do so shall bar the claim forever. ! copy of the answer shall be served by the e4ecutor or administrator on the claimant. he court in its discretion may e4tend the time for filing such answer. Sec. 11. isposition of admitted claim. !ny claim admitted entirely by the e4ecutor or administrator shall immediately
be submitted by the cler' to the court who may approve the same without hearing but the court+ in its discretion+ before approving the claim+ may order that 'nown heirs+ legatees+ or devisees be notified and heard. f upon hearing+ an heir+ legatee+ or devisee opposes the claim+ the court may+ in its discretion+ allow him fifteen (1J) days to file an answer to the claim in the manner prescribed in the preceding section. Sec. 17. rial of contested claim. >pon the filing of an answer to a claim+ or upon the e4piration of the time for such filing+ the cler' of court shall set the claim for trial with notice to both parties. he court may refer the claim to a commissioner. Sec. 1,. udgment appealable. he %udgment of the court approving or disapproving a claim+ shall be filed with the record of the administration proceedings with notice to both parties+ and is appealable as in ordinary cases. ! %udgment against the e4ecutor or administrator shall be that he pay+ in due course of administration+ the amount ascertained to be due+ and it shall not create any lien upon the property of the estate+ or give to the %udgment creditor any priority of payment. Sec. 1=. $osts. Ahen the e4ecutor or administrator+ in his answer+ admits and offers to pay part of a claim+ and the claimant refuses to accept the amount offered in satisfaction of his claim+ if he fails to obtain a more favorable %udgment+ he cannot recover costs+ but must pay to the e4ecutor or administrator costs from the time of the offer. Ahere an action commenced against the deceased for money has been discontinued and the claim embraced therein presented as in this rule provided+ the prevailing party shall be allowed the costs of his action up to the time of its discontinuance. R(LE 07 ACTIONS =Y AND AGAINST EKEC(TORS AND ADMINISTRATORS Sec. 1. !ctions which may and which may not be brought against e4ecutor or administrator. *o action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the e4ecutor or administrator but actions to recover real or personal property+ or an interest therein+ from the estate+ or to enforce a lien thereon+ and actions to recover damages f or an in%ury to person or property+ real or personal+ may be commenced against him.
$laims against the !dministrator may be presented in the !dministration proceedings but not against third persons. emands against the administrator are presented in the same special proceeding if the demand has relation to an act of administration and in the ordinary course thereof since the
administration is under the direct supervision of the court and the administrator is sub%ect to its authority Paula /. Ec"a6 17 P4il 5>7. 0ut if demand is in favor of the administrator+ and the party against whom it is enforced is a third party+ demand cannot be made by a mere motion+ but must be by an independent action against the third person Re#ublic /. De la Ra9a6 >2? P4il >?1,. Ahen an estate is under administration+ notice must be sent to the administrator of the estate& and not the heirs& since it is the said administrator+ as representative of the estate+ who has the legal obligation to pay and discharge all the debts of the estate and perform all the orders of the court. Mel$ar /. =uen/iaBe6 >101. !n action for damages may be brought against an e4ecutor or administrator. R9ual!e: /. Ti$la6 >83 SCRA 752. !s a general rule+ no action upon a claim for recovery of money or debt or interest shall be commenced against the e4ecutor or administrator because the creditor@s remedy is to file a proper claim in the proceeding for the settlement of the deceased@s estate. 0ut if the %udgment creditors had no alternative but to file an action for revival of money %udgment to pre-empt its e4tinguishment by prescription+ the action may be properly filed against the administrator.
Sec. 7. E4ecutor or administrator may bring or defend actions which survive. 3or the recovery or protection of the property or rights of the deceased+ an e4ecutor or administrator may bring or defend+ in the right of the deceased+ actions for causes which survive. Actin" w4ic4 "ur/i/e =at /. urbit6 ,1 P4il 538. Recogni#es the right of the e4ecutor or administrator to sue upon any cause of action which accrued to the decedent during his lifetime E4cept for money claims specified in Section J of R?Iwhich shall be file in the testate or intestate proceedings in the form of claims against the estate+ all other actions for causes of action which survive affecting the property rights of the deceased may be commenced against the e4ecutor or administrator. A$ua" /. Llen" %52. n%ury to property is not limited to in%uries to specific property but e4tends to other wrongs such as maliciously causing a party to cause unnecessary e4penses Mel$ar /. =uen/iaBe %01. !ction for damages caused by tortuous acts may be brought against the e4ecutor or administrator of the estate Sec. ,. "eir may not sue until have share assigned. Ahen an e4ecutor or administrator is appointed and assumes the trust+ no action to recover the title or possession of lands or for damages done to such lands shall be maintained against him by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee until the time allowed for paying debts has e4pired.
Pre/iu" !eclaratin f 4eir"4i# Nt nece""ar Suilin$ /. Marine In"urance6 >2 P4il >,. udicial declaration of heirship is not necessary in order that an heir may assert his right to the property of a deceased. his is based on the theory that the property of the deceased person+ becomes property of the heir by the mere fact of death of his predecessor in interest+ and as such he can deal with it precisely the same way in which by law or contract may be imposed upon the deceased himself. @eir" 9a brin$ a Rein/in!icatr actin befre !eclaratin f 4eir"i# =anaci4an /. Aliib!b!. "eirs may bring reinvindicatory action in their o%n names against the possessor or holder of a piece of land inherited by them+ it not being necessary that their status as heirs be first declared in an administration proceeding. @eir" 9a nt "ue w4en t4ere i" an a!9ini"tratr a##inte!6 until "4are i" a""i$ne! *o action to recover the title or possession of lands or for damages done to such lands may be maintained by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee or until the time allowed for paying debts has e4pired 0efore distribution is made or before any residue is 'nown+ the heirs or devisees have no cause of action against the administrator for the recovery of the property left by the deceased. Del R"ari /. Del R"ari6 2 P4il. ,2>. he prohibition does not apply to donees inter vivos+ who may file an action to compel the administrator to deliver the property. w4ere actin 9a be file! b 4eir" in curt %urisprudence recogni#es three e4ceptions to the rule that the heirs do not have legal standing to represent the rights and properties of the decedent during the pendency of administration proceedings: (a) if the e4ecutor or administrator is unwilling or refuses to bring suit %Pa"cual /. Pa"cual6 %?2* (b) when the administrator is alleged to have participated in the act complained of and he is made a party defendant %=rr9e /. =rr9e6 %35* and (c) when there is no administrator appointed %Riferi /. CA6 %8? Sec. =. E4ecutor or administrator may compound with debtor. Aith the approval of the court+ an e4ecutor or administrator may compound with the debtor of the deceased for a debt due+ and may give a discharge of such debt on receiving a %ust dividend of the estate of the debtor. Sec. J. 5ortgage due estate may be foreclosed. ! mortgage belonging to the estate of a deceased person+ as mortgagee or assignee of the right of a mortgagee+ may be foreclosed by the e4ecutor or administrator.
Cali9ba" /. Pa$ui6 ?5 P4il 355. !dministrator or e4ecutor does not need a special authority from the court to bring an action for foreclosure on behalf of the estate
Sec. I. 2roceedings when property concealed+ embe##led+ or fraudulently conveyed. f an e4ecutor or administrator+ heir+ legatee+ creditor+ or other individual interested in the estate of the deceased+ complains to the court having %urisdiction of the estate that a person is suspected of having concealed+ embe##led+ or conveyed away any of the money+ goods+ or chattels of the deceased+ or that such person has in his possession or has 'nowledge of any deed+ conveyance+ bond+ contract+ or other writing which contains evidence of or tends to disclose the right+ title+ interest+ or claim of the deceased to real or personal estate+ or the last will and testament of the deceased+ the court may cite such suspected person to appear before it and may e4amine him on oath on the matter of such complaint and if the person so cited refuses to appear+ or to answer on such e4amination 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. he interrogatories put to any such person+ and his answers thereto+ shall be in writing and shall be filed in the cler';s office.
Pur#"e f E;a9inatin Elicit information or secure evidence from the persons suspected of having possession or 'nowledge of the property or will of the deceased or of having concealed+ embe##led+ or conveyed away any of the property of the deceased n such proceeding+ court has no authority to ad%udicate titles or determine converted rights merely to investigate and ta'e testimony for use in an independent action C4ua /. Ab"lute Mana$e9ent Cr#6 %8,. f after e4amination there is good reason for believing for believing that the person so e4amined has property in his possession belonging to the estate+ it is the duty of the administrator+ by ordinary action to recover the same. Sec. 6. 2erson entrusted with estate compelled to render account. he court+ on complaint of an e4ecutor or administrator+ may cite a person entrusted by an e4ecutor or administrator with any part of the estate of the deceased to appear before it+ and may reDuire such person to render a full account+ on oath+ of the money+ goods+ chattels+ bonds+ accounts+ or other papers belonging to such estate as came to his possession in trust for such e4ecutor or administrator+ and of his proceedings thereon and if the person so cited refuses to appear to render such account+ the court may punish him for contempt as having disobeyed a lawful order of the court. Sec. ?. Embe##lement before letters issued.
f a person+ before the granting of letters testamentary or of administration on the estate of the deceased+ embe##les or alienates any of the money+ goods+ chattels+ or effects of such deceased+ such person shall be liable to an action in favor of the e4ecutor or administrator of the estate for double the value of the property sold+ embe##led+ or alienated+ to be recovered for the benefit of such estate. NOTES AND CASESouble value rule does not apply to the manager of a company who carries on the business after the death of his principal and applies the proceeds of sale to the payment of debts contracted in running the business. rule contemplates of an embe##lement or alienation which causes the estate to lose the property converted by the wrongdoer (5arshall v. !nthal#) Sec. 8. 2roperty fraudulently conveyed by deceased may be recovered Ahen e4ecutor or administrator must bring action. Ahen there is deficiency of assets in the hands of an e4ecutor or administrator for the payment of debts and e4penses of administration+ and the deceased in his lifetime had conveyed real or personal property+ or a right or interest therein+ or a debt or credit+ with intent to defraud his creditors or to avoid any right+ debt+ or duty or had so conveyed such property+ right+ interest+ debt+ or credit that by law the conveyance would be void as against his creditors+ and the sub%ect of the attempted conveyance would be liable to attachment by any of them in his lifetime+ the e4ecutor or administrator may commence and prosecute to final %udgment an action for the recovery of such property+ right+ interest+ debt+ or credit for the benefit of the creditors but he shall not be bound to commence the action unless on application of the creditors of the deceased+ nor unless the creditors ma'ing the application pay such part of the costs and e4penses+ or give security therefor to the e4ecutor or administrator+ as the court deems eDuitable. Sec. 1<. Ahen creditor may bring action Kien for costs. Ahen there is such a deficiency of assets+ and the deceased in his lifetime had made or attempted such a conveyance+ as is stated in the last preceding section+ and the e4ecutor or administrator has not commenced the action therein provided for+ any creditor of the estate may+ with the permission of the court+ commence and prosecute to final %udgment+ in the name of the e4ecutor or administrator+ a li'e action for the recovery of the sub%ect of the conveyance or attempted conveyance for the benefit of the creditors. 0ut the action shall not be commenced until the creditors has filed in a court a bond e4ecuted to the e4ecutor or administrator+ in an amount approved by the %udge+ conditioned to indemnify the e4ecutor or administrator against the costs and e4penses incurred by reason of such action. Such creditor shall have a lien upon any %udgment recovered by him in the action for such costs and other e4penses incurred therein as the court deems eDuitable. Ahere the conveyance or attempted conveyance has been made by the
deceased in his lifetime in favor of the e4ecutor or administrator+ the action which a creditor may bring shall be in the name of all the creditors+ and permission of the court and filing of bond as above prescribed+ are not necessary. ReDuisites for $reditor to file action: 1. there is a deficiency of assets in the hands of an e4ecutor or administrator for the payment of debts and e4penses of administration 7. deceased in his lifetime had made or attempted to ma'e a fraudulent conveyance of his property+ or a right or interest therein+ or debt or credit+ with intent to defraud his creditors or to avoid any right+ debt or duty or had so conveyed such property+ right+ debt or credit that by law the conveyance would be void as against his creditors ,. sub%ect of the attempted conveyance would be liable to attachment by any of them in his lifetime =. e4ecutor or administrator had shown to have no desire to file the action or failed to institute the same within reasonable time J. leave is granted by the court to the creditor to file the action I. bond is filed by the creditor as prescribed by the rule 6. action by creditor is in the name of the e4ecutor or administrator
!ccording to ustice 5oran+ the last , reDuisites is unnecessary where the grantee is the e4ecutor or administrator himself in which event the action would be in the name of all the creditors
R(LE 00 & PAYMENT O+ T@E DE=TS O+ T@E ESTATE Sec. 1. ebts paid in full if estate sufficient. f+ 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 debts+ the e4ecutor or administrator shall pay the same within the time limited for that purpose.
! writ of e4ecution is not proper to enforce payment of debts and e4penses of administration. he proper procedure is for the court to order the sale of personal estate or the sale or mortgage of real property of the deceased. o 2roceeds will be used to pay all the outstanding debts and the e4penses of administration
Sec. 7. 2art of estate from which debt paid when provision made by will. f the testator ma'es provision by his will+ or designates the estate to be appropriated for the payment of debts+ the e4penses of administration+ or the family e4penses+ they shall be paid according to the provisions of the will but if the provisions made by the will or the estate appropriated+ is not sufficient for that purpose+ such part of the estate of the testator+ real or personal+ as is not disposed of by will+ if any+ shall be appropriated for that purpose.
Sant" /. Manaran$6 27 P4il 281.Even if the testator has ac'nowledged a specific debt in his will+ the creditor must still file is claim otherwise it would be barred (see also Rule ?I)
Sec. ,. 2ersonalty first chargeable for debts+ then realty. he personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and e4penses and if said personal estate is not sufficient for that purpose+ or its sale would redound to the detriment of the participants of the estate+ the whole of the real estate not disposed of by will+ or so much thereof as is necessary+ may be sold+ mortgaged+ or otherwise encumbered for that purpose by the e4ecutor or administrator+ after obtaining the authority of the court therefor. !ny deficiency shall be met by contributions in accordance with the provisions of section I of this rule. Realty is liable for debts and e4penses only when 1. the personal estate of the decedent is not sufficient for the purpose+ or 7. sale of personalty would be detrimental to the participants of the estate Sec. =. Estate to be retained to meet contingent claims. f the court is satisfied that a contingent claim duly filed is valid+ it may order the e4ecutor or administrator to retain in his hands sufficient estate to pay such contingent claim when the same becomes absolute+ or+ if the estate is insolvent+ sufficient to pay a portion eDual to the dividend of the other creditors. Sec. J. "ow contingent claim becoming absolute in two years allowed and paid !ction against distributees later. f such contingent claim becomes absolute and is presented to the court+ or to the e4ecutor or administrator+ within two (7) years from the time limited for other creditors to present their claims+ it may be allowed by the court if not disputed by the e4ecutor or administrator+ and+ if disputed+ it may be proved and allowed or disallowed by the court as the facts may warrant. f the contingent claim is allowed+ the creditor shall receive payment to the same e4tent as the other creditors if the estate retained by the e4ecutor or administrator is sufficient. 0ut if the claim is not so presented+ after having become absolute+ within said two (7) years+ and allowed+ the assets retained in the hands of the e4ecutor or administrator+ not e4hausted in the payment of claims+ shall be distributed by the order of the court to the persons entitled to the same but the assets so distributed may still be applied to the payment of the claim when established+ and the creditor may maintain an action against the distributees to recover the debt+ and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased.
f the contingent claim matures after the e4piration of 7 years+ the creditor may sue the distributees+ whose liability is proportionate to the shares in the estate received by them Rule ??.J is the only instance wherein a creditor may file an action against the distributee of the estate he contingent claims must first have been established and allowed in the probate court before the creditors can file an action directly against the distributees
Sec. I. $ourt to fi4 contributive shares where devisees+ legatees+ or heirs have been in possession. Ahere devisees+ legatees+ or heirs have entered into possession of portions of the estate before the debts and e4penses have been settled and paid+ and have become liable to contribute for the payment of such debts and e4penses+ the court having %urisdiction of the estate may+ by order for that purpose+ after hearing+ settle the amount of their several liabilities+ and order how much and in what manner each person shall contribute+ and may issue e4ecution as circumstances reDuire.
he hereditary property is the part that remains after the settlement of all lawful claims against the estate. he heirs and distributees are liable individually for the payment of all lawful outstanding claims against the estate in proportion to the amount received by them. o Pa"tr /. CA6 %0,. Since a legacy is not a debt of the estate+ legatees are among those against whom e4ecution may issue.
Sec. 6. rder of payment if estate insolvent. f the assets which can be appropriated for the payment of debts are not sufficient for that purpose+ the e4ecutor or administrator shall pay the debts against the estate+ observing the provisions of !rticles 1
respective credits. Sec. 1<. Ahen and how claim proved outside the 2hilippines against insolvent resident;s estate paid. f it appears to the court having %urisdiction that claims have been duly proven in another country against the estate of an insolvent who was at the time of his death an inhabitant of the 2hilippines+ and that the e4ecutor or administrator in the 2hilippines had 'nowledge of the presentation of such claims in such country and an opportunity to contest their allowance+ the court shall receive a certified list of such claims+ when perfected in such country+ and add the same to the list of claims proved against the deceased person in the 2hilippines so that a %ust distribution of the whole estate may be made eDually among all its creditors according to their respective claims but the benefit of this and the preceding sections shall not be e4tended to the creditors in another country if the property of such deceased person there found is not eDually apportioned to the creditors residing in the 2hilippines and the other creditors+ according to their respective claims. Sec. 11. rder for payment of debts. 0efore the e4piration of the time limited for the payment of the debts+ the court shall order the payment thereof+ and the distribution of the assets received by the e4ecutor or administrator for that purpose among the creditors+ as the circumstances of the estate reDuire and in accordance with the provisions of this rule. Sec. 17. rders relating to payment of debts where appeal is ta'en. f an appeal has been ta'en from a decision of the court concerning a claim+ the court may suspend the order for the payment of the debts or may order the distribution among the creditors whose claims are definitely allowed+ leaving in the hands of the e4ecutor or administrator sufficient assets to pay the claim disputed and appealed. Ahen a disputed claim is finally settled the court having %urisdiction of the estate shall order the same to be paid out of the assets retained to the same e4tent and in the same proportion with the claims of other creditors. Sec. 1,. Ahen subseDuent distribution of assets ordered. f the whole of the debts are not paid on the f irst distribution+ and if the whole assets are not distributed+ or other assets afterwards come to the hands of the e4ecutor or administrator+ the court may from time to time ma'e further orders for the distribution of assets. Sec. 1=. $reditors to be paid in accordance with terms of order. Ahen an order is made f or the distribution of assets among the creditors+ the e4ecutor or administrator shall+ as soon as the time of
payment arrives+ pay the creditors the amounts of their claims+ or the dividend thereon+ in accordance with the terms of such order. Sec. 1J. ime for paying debts and legacies fi4ed+ or e4tended after notice+ within what periods. n granting letters testamentary or administration the court shall allow to the e4ecutor or administrator a time for disposing of the estate and paying the debts and legacies of the deceased+ which shall not+ in the first instance+ e4ceed one (1) year but the court may+ on application of the e4ecutor or administrator and after hearing on such notice of the time and place therefor given to all persons interested as it shall direct+ e4tend the time as the circumstances of the estate reDuire not e4ceeding si4 (I) months for a single e4tension nor so that the whole period allowed to the original e4ecutor or administrator shall e4ceed two (7) years. Sec. 1I. Successor of dead e4ecutor or administrator may have time e4tended on notice within certain period. Ahen an e4ecutor or administrator dies+ and a new administrator of the same estate is appointed+ the court may e4tend the time allowed for the payment of the debts or legacies beyond the time allowed to the original e4ecutor or administrator+ not e4ceeding si4 (I) months at a time and not e4ceeding si4 (I) months beyond the time which the court might have allowed to such original e4ecutor or administrator and notice shall be given of the time and place for hearing such application+ as reDuired in the last preceding section.
Li:arra$a /. Aba!a6 ?8 P4il >2?. he probate court must e4ert themselves to close the estates within 17 months from the time they are presented+ and they may refuse to allow any compensation to e4ecutor or administrators who do not actively labor to that end+ and may even adopt harsher measures (removal or payment of damages) 2eriod to be fi4ed by the court to settle the estate o not e4ceed 1 year in the first instance+ or o not more than 7 years where special circumstances so reDuire+ or o not more than 7 years and a half when the e4ecutor or administrator dies and a new one is appointed. E4ecution may issue only where the devisees+ legatees or heirs have entered into possession of their respective portions in the estate prior to settlement and payment of the debts and e4penses of administration and it is late ascertained that there are such debts and e4penses to be paid.
Rule 01 SALES6 MORTGAGES6 AND OT@ER ENC(M=RANCES O+ PROPERTY O+ DECEDENT Section 1. /rder of sale of personalt*
>pon the application of the e4ecutor 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+ e4penses of administration+ or legacies+ or for the preservation of the property.
@eir" f S#u"e" Re9e!i" San!eBa" an! Eli!r San!eBa" /". Lina6 %8>. !lthough Rule ?8 reDuires court approval for the disposition of the estate of the decedent+ %udicial approval cannot adversely affect the substantive rights of heirs to dispose of their own pro indiviso shares in the co-heirship or co-ownership. hey can sell their rights+ interests or participation in the property under administration. ! stipulation reDuiring court approval does not affect the validity and effectivity of the sale. t merely implies that the property may be ta'en out of custodia legis+ but only with the court@s permission.
Section 7. When the court ma* authori$e sale& mortgage& or other encumbrance of realt* to pa* debts and legacies though personalt* not ehausted Ahen the personal estate of the deceases is not sufficient to pay the debts+ e4penses of administration+ and legacies or where the sale of such personal estate may in%ure the business or other interests of those interested in the estate+ and where a testator has not otherwise made sufficient provision for the payment of such debts+ e4penses and legatees residing in the 2hilippines+ the court on the application of the e4ecutor or administrator and on written notice to the heirs+ devisees+ and legatees+ residing in the 2hilippines+ may authori#e the e4ecutor or administrator to sell+ mortgage+ or otherwise encumber so much as may be necessary of the real estate+ in lieu of the personal estate+ for the purpose of paying such debts+ e4penses and legacies+ if it clearly appears that such sale+ mortgage or encumbrance would be beneficial to the person interested and if a part cannot be sold+ mortgaged or otherwise encumbered without in%ury to those interested in the remainder+ the authority may be for the sale+ mortgage or other encumbrance of the whole of such real estate or so much thereof as is necessary or beneficial under the circumstances. Section ,. 0ersons interested ma* prevent such sale& etc.& b* giving bond *o such authority to sell+ mortgage or otherwise encumber real or personal estate shall be granted if any person interested in the estate gives a bond+ in a sum to be fi4ed by the courts+ conditioned to pay the debts+ e4penses of administration+ and legacies within such time as the court directs and such bond shall be for the security of the creditors+ as well as of the e4ecutors or administrator+ and may be prosecuted for the benefit of either. Section =. When the court ma* authori$e sale of estate as beneficial to
interested persons. 2isposal of proceeds. Ahen it appears that the sale of the whole or a pat of the real or personal estate+ will be beneficial to the heirs+ devisees+ legatees+ and other interested persons+ the court may+ upon application of the e4ecutor or administrator and on written notice to the heirs+ devisees+ and legatees who are interested in the estate to be sold+ authori#e the e4ecutor or administrator to sell the whole or part of said estate+ although not necessary to pay debts+ legacies or e4penses of administration but such authority shall not be granted if inconsistent with the provisions of a will. n case of such sale+ the proceeds shall be assigned to the persons entitled to the estate in the proper proportions. ¤
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Maneclan$ /. =aun %12. he father or mother is the administrator of the child@s property+ but notice to them alone is not sufficient. *otice to counsel or guardian ad litem+ however+ is sufficient >nder rule ?7.=+ the authority granted by the court to the former e4ecutor or administrator for the sale or mortgage of real estate may be renewed in favor of the new administrator or e4ecutor without further notice or hearing. Pi =arret Realt De/el#9ent6 Inc. /. CA6 %0?.he probate court may rescind its order authori#ing the administrator to sell realty to a third party and this third party cannot dispute such an order and ob%ect to the sale of the property to another party without putting up a bond for the security of creditors as well as the administrator. Ortali: /. Re$i"trar f Dee!" %,8. he reason for this reDuirement is that all the heirs are the presumptive owners.
Section J. When the court ma* authori$e sale& mortgage& or other encumbrance of estate to pa* debts and legacies in other countries. Ahen the sale of personal estate+ or the sale+ mortgage+ or other encumbrance of real estate is not necessary to pay the debts+ e4penses of administration+ or legacies in the 2hilippines+ but it appears from the records and proceedings of a probate court in another country that the estate of the deceased in such other country is not sufficient to pay the debts+ e4penses of administration+ and legacies there+ the court here may authori#e the e4ecutor or administrator to sell+ mortgage+ or otherwise encumber the real estate for the payment of debts or legacies in the other country+ in the same manner as for the payment of debts or legacies in the 2hil. Section I. When the court ma* authori$e sale& mortgage& or other encumbrance of realt* acuired on eecution or foreclosure.
he court may authori#e an e4ecutor or administrator to sell+ mortgage+ or otherwise encumber real estate acDuired by him on e4ecution or foreclosure sale+ under the same circumstances and under the same regulations prescribed in this rule for sale+ mortgage+ or other encumbrance of other real estate. Section 6. !egulations for granting authorit* to sell& mortgage& or other%ise encumber estate. he court having %urisdiction of the estate of the deceased may authori#e the e4ecutor or administrator to sell personal estate+ or to sell+ mortgage+ or otherwise encumber real estate+ in cases provided by these rules and when it appears necessary or beneficial under the following regulations: a. the e4ecutor or administrator shall file a written petition setting forth the debts due from the deceased+ the e4penses of administration+ the legacies+ the value of the personal estate+ the situation of the estate to be sold+ mortgaged+ or otherwise encumbered+ and such other facts to show that the sale+ mortgage+ or other encumbrance is necessary or beneficial b. the court shall thereupon fi4 a time and place for the hearing of such petition+ and cause notice stating the nature of the petition+ the reason for the same+ and the time and place for the hearing+ to be given personally or by mail to the persons interested+ and may cause such further notice to be given+ by publication or otherwise+ as it shall deem proper c.
if the court reDuires it+ the e4ecutor or administrator shall give an additional bond+ in such sum as the court directs+ conditioned that such e4ecutor or administrator will account for the proceeds of the sale+ mortgage+ or other encumbrance.
d. if the reDuirements in the preceding subdivisions of this section have been complied with the court+ by order stating such compliance+ may authori#e the e4ecutor or administrator to sell+ mortgage+ or otherwise encumber+ in proper cases+ such part of the estate as deemed necessary+ and in case of sale the court may authori#e it to be public or private as would be most beneficial to all parties concerned. he e4ecutor or administrator shall be furnished with a certified copy of such order. e. if the estate is to be sold at auction+ the mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice of e4ecution sale.
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there shall be recorded in the registry of deeds of the province in which the real estate thus sold+ mortgaged+ or otherwise encumbered is situated+ a certified copy of the order of the court+ together with the deed of the e4ecutor or administrator for such real estate+ which shall be valid as if the deed had been e4ecuted by the deceased in his lifetime.
La /. Genat6 >,7 SCRA 03. he administrator occupies a portion of the highest trust. "e should act with utmost circumspection to preserve the estate and guard against its dissipation so as not to pre%udice its creditors and the heirs. o guarantee faithful compliance with the authority granted+ the order of the court ma'es it an emphatic dut* on the part of the administrator to submit to the court for approval transactions made by him. he regulations apply to both testate and intestate proceedings and are mandator* . he order of sale and the sale made will be void if they are not complied with such authority may be validly given despite ob%ection of one or more of the heirs. !ctual 'nowledge of the application for sale may estop the heir or interested party from Duestioning the sale. Ahere a party did not ob%ect to the order of the court and participated in the sale+ he is estopped from uestioning the regularit* of the sale. Sale of land under %udicial administration needs approval of the sale b* the court to be effective. G! / Orellan. Sale by the administrator which is not authori#ed by the probate court is null and void and does not pass title to the purchaser. E"tate f Ola/e / Ree". Ahen the estate is already sub%ect to a testate or intestate proceeding+ the administrator cannot enter into any transaction involving it without prior probate court approval. "ence+ the same court can declare the sale null and void for as long as the proceedings had not been closed. Acebe! /. Abe"a9i". he heirs have the right to dispose of their ideal share in an inheritance+ even if the same is under administration+ based on the civil code: possession of hereditary property is deemed transmitted from moment of death if the inheritance is accepted+ and until it is partitioned+ it is owned in common by such heirs. Reference to %udicial approval (R?8.6) cannot adversely affect the substantive rights of the heirs to dispose of their ideal share in the co-heirship andLor co-ownership among the heirs.
Section ?. When the court ma* authori$e conve*ance of realt* %hich deceased contracted to conve*. Notice. 3ffect of deed. Ahere the deceased was in his lifetime under contract+ binding in law+ to deed real property+ or an interest therein+ the court having %urisdiction of the estate may+ on application for that purpose+ authori#e the e4ecutor or administrator to convey such property according to such contract+ or with such modifications as are agreed upon by the parties and approved by the court and if the contract is to convey real property to the e4ecutor or administrator+ the cler' of court shall
e4ecute the deed. he deed e4ecuted by such e4ecutor+ administrator+ or cler' of court shall be effectual to convey the property as if e4ecuted by the deceased in his lifetime but no such conveyance shall be authori#ed until notice of the application for that purpose has been given personally or by mail to all persons interested+ and such further notice has been given+ by publication or otherwise+ as the court deems proper nor if the assets in the hands of the e4ecutor or administrator will thereby be reduced so as to prevent a creditor from receiving his full debt or diminish his dividend.
@eir" f S#u"e" Re9e!i" R. San!eBa" an! Eli!r San!eBa" /". Lina %8>. Rule ?8.? does not prescribe that only the administratorLe4ecutor can apply for the approval of a sale of realty under administration. his provision should be differentiated from Sections 7 and = specifically reDuiring only the e4ecutor or administrator to file an application to sell+ encumber or mortgage real estate. Ahile section ? does not specify who should file the application+ it stands to reason that the proper party must be one who is to be benefitedLin%ured from the %udgment or one who is entitled to the avails of the suit.
Pi =arrett Realt De/el#9ent /". CA %8?. he probate court has authority to determine whether conditions of a particular sale would be beneficial to the estate and this is generally respected. o attac' the nullity of the order of the probate court to sell the property of the deceased+ it must be shown that the contract of sale is null and void. he validity of said order may not be attac'ed collaterally since the supposed ground for declaring it void for lac' of %urisdiction is not apparent on the face thereof. hough the order of the probate court approving sale of the decedent@s property is final+ the respondent may file a complaint in the proper court for the rescission of the sale.
Section 8. When the court ma* authori$e conve*ance of land %hich deceased held in trust. Ahere the deceased in his lifetime held real property in trust for another person+ the court may+ after notice given as reDuired in the last preceding section+ authori#e the e4ecutor or administrator to deed such property to the person+ or his e4ecutor or administrator+ for whose use and benefit it was so held and the court may order the e4ecution of such trust+ whether created by deed or by law.
2roperty to be Sold 2ersonalty
2urpose 2ay debts+ e4penses of
$onditions !pplication of e4ecutor or
2roperty to be Sold
2urpose
$onditions
administration+ or legacies o preserve the property (H1) Real 2roperty
2ay debts+ e4penses of administration+ or legacies o preserve the property
Sale+ mortgage+ encumbrance will be beneficial to interested persons 0eneficial to interested persons (H=)
2ersonal or real property
Real property
2ersonal estate is not sufficient+ or Sale of such personal estate may in%ure the business or other interests of those interested in the estate+ and testator has not otherwise made sufficient provision for such e4penses and debts (section 7)
2ay debts and legatees in foreign countries
Sale is not necessary to pay debts and e4penses within the 2hilippines but property in
2roperty to be Sold administrator Aritten *otice to heirs and other interested persons (H1) !pplication of e4ecutor or administrator Aritten *otice to heirs and other interested persons (H7)
2urpose
Realty acDuired on e4ecutionLforeclos ure
$onditions
other country is not sufficient to pay debts and e4penses in that country (HJ) Same as foregoing sections (HI)
Part III. Di"tributin an! Partitin f t4e E"tate Rule 18 Di"tributin an! Partitin f t4e E"tate Sec. 1. Ahen order for distribution of residue made. Ahen the debts+ funeral charges+ and e4penses of administration+ the allowance to the widow+ and inheritance ta4+ if any+ chargeable to the estate in accordance with law+ have been paid+ the court+ on the application of the e4ecutor 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 person may demand and recover their respective shares from the e4ecutor or administrator+ or any other person having the same in his possession. f there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law+ the controversy shall be heard and decided as in ordinary cases.
!pplication of e4ecutor or administrator Aritten *otice to heirs+ devisees and legatees. (H=) Same as payment of debts and legacies (HJ)
*o distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for+ unless the distributees+ or any of them+ give a bond+ in a sum to be fi4ed by the court+ conditioned for the payment of said obligations within such time as the court directs. Sec. 7. Fuestions as to advancement to be determined. Fuestions as to advancement made+ or alleged to have been made+ by the deceased to any heir may be heard and determined by the court having %urisdiction of the estate proceedings and the final order of the court thereon shall be binding on the person raising the Duestions and on the heir. Sec. ,. 0y whom e4penses of partition paid. f at the time of the distribution the e4ecutor or administrator has
Lu:n Suret /. Juebrar6 >27 SCRA ,8>. !pproval of the pro%ect of partition does not necessarily terminate the proceedings PCI= /. E"clin6 35 SCRA 255. 2roceedings for the settlement of estate is deemed ready for final closure when o here should have been issued already an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law o Such order shall not be issued until it is shown that the Bdebts+ funeral charges+ and e4penses of administration+ the allowance to the widow+ and inheritance ta4+ if any+ chargeable to the estate o rder is usually upon proper and specific application for the purpose of the interested parties Stages before distribution of the estate o )era /. Na/arr %77.2ayment of obligations (liDuidation of estate). istribution of the estate may be ordered under any of the following circumstances: o nheritance ta4 has been paid+ or o Sufficient bond is given to meet the payment of the inheritance ta4 and other obligations+ or o Ahen the payment of said ta4 and all other obligations have been provided for o eclaration of heirs o he probate court has %urisdiction to determine whether a person is an ac'nowledge natural child of the decedent+ but an adoption decree cannot be assailed in the settlement proceeding
(riarte /". C+I6 Ne$r". ! party claiming to be an ac'nowledged natural child of the testator is entitled to intervene in the proceedings for the probate of the will of the testator+ if still open+ or to as' for its reopening if it has already been closed+ so as to be able to submit for determination the Duestion of his ac'nowledgment as a natural child of the deceased testator+ the court having+ in its capacity as a probate court+ %urisdiction to declare who are the heirs of the testator and whether or not a particular party is or should be declared his ac'nowledged natural child. o ! %udicial declaration that a certain person is the only heir of the decedent is e4clusively within the range of administration proceedings and cannot properly be made in an independent action o ! separate action for declaration of heirs is improper
!lthough the declaration of heirship is made only af ter the payment of all the charges against the estate+ the probate court is not en%oined from ma'ing the declaration prior to the satisfaction of the obligation o he rules allow the preliminary attachment of the interest of a party in the property belonging to the estate of the decedent by serving the e4ecutorLadministratorLpersonal representative of the decedent with a copy of the order and notice that the interest is attached (Rule J6.6f) o ! pro%ect of partition is merely a proposal for distribution of the hereditary estate which the court may either accept or re%ect. he e4ecutor is not reDuired to prepare and present the same+ but the court may reDuire him to do so. he probate court does not lose %urisdiction over the estate until after the payment of all the debts and the delivery of the remaining estate to the heirs. o
retained sufficient effects in his hands which may lawfully be applied for the e4penses of partition of the properties distributed+ such e4penses of partition may be paid by such e4ecutor or administrator when it appears eDuitable to the court and not inconsistent with the intention of the testator otherwise+ they shall be paid by the parties in proportion to their respective shares or interest in the premises+ and the apportionment shall be settled and allowed by the court+ and+ if any person interested in the partition does not pay his proportion or share+ the court may issue an e4ecution in the name of the e4ecutor or administrator against the party not paying for the sum assessed.
Nature f t4e Prcee!in$- IN re9 PS= /. Lantin6 %0,. ! probate proceeding is a proceeding in rem and a decision rendered therein with respect to estate of the decedent is binding on the whole world. he only instance where a party interested in a probate proceeding may have a final liDuidation set aside is when he is left out by reason of circumstances beyond his control or through mista'e or inadvertence imputable to negligence. o )!a !e Albert /. CA %01. 0etter practice to secure relief: reopening of the probate proceedings by proper motion within the reglementary period instead of a separate action o Ree" /. =arretDatu %57. Ahere the court has validly issued a decree of distribution and the same has become final+ the validity or invalidity of the pro%ect of partition becomes irrelevant. o 5ay be set aside only if interested party is left out by reason of circumstances beyond his control or mista'e or inadvertence not imputable to negligence o Remedies : motion to reopen within the ,<-day reglementary period + then appeal from the order of denial not independent action e.g. complaint for reconveyance (since proceeding is in rem+ all interested persons have constructive notice+ and %urisdiction of probate court is e4clusive) o *ondistribution of estate is not a ground for reopening must be motion for e4ecution or if beyond the reglementary period+ separate action for recovery of shares is proper nterference of a co-eDual court with a probate court prohibited avoids confusion and conflict ssuance of writ of e4ecution o General Rule: $annot issue+ since administrator satisfies the court order ad%udicating claims without such writ o *K E4ceptions : o satisfy contributive share of heirs in possession of the decedent@s assets (R??.I) o o enforce payment of e4penses of partition (R8<.,)
o
o satisfy costs when a person is cited for e4amination in probate proceedings. (R1=7.1,)
C9#ari"n f Buri"#ru!ence 4uilas v. C5# !llowed continuation of separate action to annul pro%ect of partition 5oved for partial delivery of lots in her favor pursuant to pro%ect of partition Estate proceedings closed and terminated for over three years
Solivio v. CA isallowed separate action
3iled separate actions+ instead of filing a motion in same case
R(LE 1> ESC@EATS Sec. 1. When and b* %hom petition filed. 6 Ahen a person dies intestate+ sei#ed of real or personal property in the 2hilippines+ leaving no heir or person by law entitled to the same+ the Solicitor General or his representative in behalf of the Republic of the 2hilippines+ may file a petition in the $ourt of 3irst nstance of the province where the deceased last resided or in which he had estate+ if he resided out of the 2hilippines+ setting forth the facts+ and praying that the estate of the deceased be declared escheated.
2roceedings were still pending
Sec. =. !ecording the order of partition of estate. 6 $ertified copies of final orders and %udgments of the court relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the province where the property is situated.
after the entry of the order+ and shall direct that a copy of the order be published before the hearing at least once a wee' for si4 (I) successive wee's in some newspaper of general circulation published in the province+ as the court shall deem best.
Escheat is a proceeding whereby the real and personal property of a deceased person in the 2hilippines+ without leaving any will or legal heirs+ become property of the State upon his death t is an incident or attribute of sovereignty Rests on the principle of ultimate ownership by the state of all property within its %urisdiction ! substantial right of the state+ not charity or gratuity or unearned benefit !ny person alleging to a direct right or interest may oppose Re#ublic /. CA %00. ! depositary ban' should be %oined as respondent ( !ct ,8,I+ Section , K aw on 3orfeiture of ormant 0an' eposits) urisdiction in proceedings in escheat cannot be converted into settlement of the estate proper petitions must be filed
Sec. ,. Hearing and judgment. 6 >pon the satisfactory proof in open court on the date fi4ed in the order that such order has been published as directed and that the person died intestate+ sei#ed of real or personal property in the 2hilippines+ leaving no heir or person entitled to the same+ and no sufficient cause being shown to the contrary+ the court shall ad%udge that the estate of the deceased in the 2hilippines+ after the payment of %ust debts and charges+ shall escheat and shall+ pursuant to law+ assign the personal estate to the municipality or city where he last resided in the 2hilippines+ and the real estate to the municipalities or cities+ respectively+ in which the same is situated. f the deceased never resided in the 2hilippines+ the whole estate may be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools+ and public charitable institutions and centers in said municipalities or cities. he court+ at the instance of an interested party+ or on its own motion+ may order the establishment of a permanent trust+ so that only the income from the property shall be used.
Sec. 7. /rder for hearing. 6 f the petition is sufficient in form and substance+ the court+ by an order reciting the purpose of the petition+ shall fi4 a date and place for the hearing thereof+ which date shall be not more than si4 (I) months
General rule : 5 not allowed by R$ on escheat Re#ublic /. PN=6 %5>. "owever+ there is no procedural reason which prevents 5 upon any grounds for dismissal of a complaint e.g. when petition does not state facts which entitle the State to escheat+ or there is no ground for the court to proceed Munici#al Cuncil f San Pe!r /. Cle$i !e San '"e. 5 plays the role of a demurrer+ enabling the court to resolve the legal Duestions raised therein
udgement of escheat conclusive upon all persons notified by advertisement Kac' of dishonest intent on the part of the State to constitutes due process+ proper notice having been observed 0urden of proof rests on State to prove the property is liable in all respects to escheat prove decedent died: 1st+ intestate 7nd+without heirs ,rd+ sei#ed of the property in Duestion. R9an Cat4lic Arc4bi"4# /. Mnte !e Pie!a!6 50 P4il. >. Right to escheat may be waived+ e4pressly or impliedly e.g. right e4isted prior to registration proceedings+ and such right not asserted in said proceedings
Sec. =. When and b* %hom claim to estate filed. 6
f a devisee+ legatee+ heir+ widow+ widower or other person entitled to such estate appears and files a claim thereto with the court within five (J) years from the date of such %udgment+ such person shall have possession of and title to the same+ or if sold+ the municipality or city shall be accountable to him for the proceeds+ after deducting reasonable charges for the care of the estate but a claim not made within said time shall be forever barred.
Di/in /. Munici#alit f Guian$a6 52 P4il. 125. *oncompliance with %urisdictional reDuirements render a court without %urisdiction to grant a remedy enabling an heir to appear from the date the decree of escheat and file a claim to the estate
Sec. J. ther actions for escheat. >ntil otherwise provided by law+ actions for reversion or escheat of properties alienated in violation of the $onstitution or of any statute shall be governed by this rule+ e4cept that the action shall be instituted in the province where the land lies in whole or in part.
PART I).
G(ARDIANS@IP GENERAL PRINCIPLES Definitin" Guar!ian"4i# may be viewed either as a power or a relation t is power of protective authority given by law and imposed on an individual o who is free and in the en%oyment of his rights+ over one whose wea'ness on account of his age or other infirmity+ renders him unable to protect himself. t is a relation subsisting between the guardian and the ward. o nvolves the ta'ing possession of and management of+ the estate of another o unable to act for himself Guar!ian- person entrusted with the custody and control of the person andLor estate of a minor+ insane or other person incapable of managing his own affairs Nature f Guar!ian"4i# Sacred in character. t is designed to further the ward@s well-being and to preserve his property. Ahile custody involves immediate care and control+ guardianship includes responsibilities of loco parentis as well. =a"i" f Guar!ian"4i#- Paren" Patriae6 %Ner /. Lren:6 %72 uty of the state to protect the rights of personsLindividuals who because of ageLincapacity are in an unfavorable position vis--vis other parties. 2arens patriae is inherent in the supreme power of the state his is a most beneficent function and often necessary to be e4ercised in the interest of humanity and for the prevention of in%ury to those who cannot protect themselves. Nece""it f $uar!ian"4i# #rcee!in$" Gr"tia$a /. Sarte6 50 P4il ?.urisdiction over the person of an incompetent cannot be had unless a guardian was appointed upon whom summons and notice of the proceedings may be served. Pur#"e f Guar!ian"4i#
to safeguard the right and interests of minors and incompetent persons in!" f Guar!ian" according to scopeLe4tent guardian over the person o Guardian of the property o General Guardians custody and care of the person and of all the property of o the ward !ccording to constitution Kegal those deemed as guardian without need of court appointment (see !rt o 77J) Guardian ad litem appointed by the courts of %ustice to prosecute or defend a o minor+ insane or person declared to be incompetent+ in an action in court. udicial appointed by the court in pursuance to law+ as guardian for insane o persons+ prodigals+ minor heirs or deceased war veterans and other incompetent persons.
R(LE 12 )EN(E n view of the Rule on Guardianship of 5inors+ the following rules should be limited in application to the Guardianship of incompetents. =a"i" fr t4e "e#arate rule n Guar!ian"4i# f Minr" "ee APPENDIK FA +OR TEKT !rt T&+ §J state has a duty to defend the right of children to assistance+ proper care and nutrition+ and special protection from all forms of neglect+ abuse+ cruelty. E4ploitation and other conditions pre%udicial to their development. *ery vs. Koren#o - where minors are involved+ the state acts as parens patriae. 2 I<,+ !rt ,+ 2ar. ? provides that every child has the right to be protection against e4ploitation+ improper influences+ ha#ards+ and other conditions of circumstances pre%udicial to his physical+ mental+ emotional+ moral and social development. Sectin >. Where to institute proceedings. – Guardianship of the person or estate of [a minor] or incompetent may be instituted in the Court of First Instance of the province, or in the justice of the peace court of the municipality, or in the municipal court of the chartered city where the minor or incompetent person resides, and if he resides in a foreign country, in the Court of First Instance of the province wherein his property or part thereof is situated provided, however, that where the value of the property of such minor or incompetent e!ceeds the jurisdiction of the justice of the peace or municipal court, the proceedings shall be instituted in the Court of First Instance" 9n the $ity of 5anila+ the proceedings shall be instituted in the uvenile and omestic Relations $ourt.
he venue of guardianship proceedings is primarily the place of residence of the minorL incompetent in the 2hilippines. Ahen the minorLincompetent is a non-resident+ the petition for guardianship may be filed in the R$ of the place where the property of the minorLincompetent is situated.
his is because the powers of a guardian may be e4ercised only in the state under whose laws they were conferred. Residence O domicile >nder the 3amily $ourts !ct (R! ?,I8)+ the 3amily courts is vested with e4clusive original %urisdiction over petitions for guardianship+ custody of children+ and habeas corpus in relation to the latter.
A =ranc4 f t4e Sa9e Curt Cannt be Per9itte! t A""ert it" 'uri"!ictin in Di"re$ar! f t4e Or!er" f Ant4er =ranc4
R(LE 1, GENERAL G(ARDIANS AND G(ARDIANS@IP- APPOINTMENT O+ G(ARDIANS
Sectin 2. Meaning of word "incompetent." –
Sectin >. Who may petition for appointment of guardian for resident. –
>nder this rule+ the word 7incompetent7 includes persons suffering the penalty of civil interdiction or who are hospitali#ed lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, wea$ mind, and other similar causes, cannot, without outside aid, ta$e care of themselves and manage their property, becoming thereby an easy prey for deceit and e!ploitation"
(ny relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen years of age or over, may petition the court having jurisdiction for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent" (n officer of the Federal (dministration of the )nited *tates in the +hilippines may also file a petition in favor of a ward thereof, and the irector of -ealth, in favor of an insane person who should be hospitali#ed, or in favor of an isolated leper"
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Ci/il Inter!ictin deprives the offender of his rights of parental authority+ guardianship+ marital authority+ the right to manage his property and to dispose of it by any act inter vivos. Pr!i$alit synonymous with spendthrift or a person who by e4cessive drin'ing+ gaming+ idleness or debauchery of any 'ind shall so spend+ waste or lessen his estate as to e4pose himself or his family to want or suffering or e4pose the town to charge or e4pense for the support of himself or his family the prodigal must show a morbid mind and a disposition to waste the estate %Martine: /. Martine:6 > P4il >02. Juantu9 f e/i!ence O competent evidence demonstrating necessary o facts and the evidence must be clear and definite %Yan$c /. C+I6 21 P4il. >0,. In"anit Every adult is presumed sane. "owever+ where the Duestion of insanity is put in issue in guardianship proceedings+ and a guardian is named for the person alleged to be incapacitated+ a presumption of mental infirmity of the ward is created.
Sectin ,. Transfer of venue. – %he court ta$ing cogni#ance of a guardianship proceeding, may transfer the same to the court of another province or municipality wherein the ward has ac&uired real property, if he has transferred thereto his bona'fide residence, and the latter court shall have full jurisdiction to continue the proceedings, without re&uiring payment of additional court fees"
Pur#"e f Aut4ri:in$ C4an$e f )enue- o afford convenience to the ward such change is therefore within the e4clusive discretion of the court. Li9itatin" n t4e Tran"fer f )enue- he court may impose as a condition to the change of venue that a settlement of estate be made in the court which granted the letters of guardianship.
Pr/i"in" f t4e +a9il C!e n Guar!ian" Art. 222. he courts may appoint a guardian of the child;s property or a guardian ad litem when the best interests of the child so reDuires. (,16) Art. 22,. he parents or+ in their absence or incapacity+ the individual+ entity or institution e4ercising parental authority+ may petition the proper court of the place where the child resides+ for an order providing for disciplinary measures over the child. he child shall be entitled to the assistance of counsel+ either of his choice or appointed by the court+ and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. "owever+ if in the same proceeding the court finds the petitioner at fault+ irrespective of the merits of the petition+ or when the circumstances so warrant+ the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem %ust and proper. (,1?a) Art. 22?. he measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children;s homes duly accredited by the proper government agency. he parent e4ercising parental authority shall not interfere with the care of t he child whenever committed but shall provide for his support. >pon proper petition or at its own instance+ the court may terminate the commitment of the child whenever %ust and proper. Art. 225. he property of the unemancipated child earned or acDuired with his wor' or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted e4clusively to the latter;s support and education+ unless the title or transfer provides otherwise. he right of the parents over the fruits and income of the child;s property shall be limited primarily to the child;s support and secondarily to the collective daily needs of the family. (,71a+ ,7,a)
Art. 227. f the parents entrust the management or administration of any of their properties to an unemancipated child+ the net proceeds of such property shall belong to the owner. he child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger+ unless the owner+ grants the entire proceeds to the child. n any case+ the proceeds thus give in whole or in part shall not be charged to the child;s legitime. (,77a) Law n Parental Aut4rit oint parental authority is e4ercised by the father and the mother. n case of disagreement+ the father@s decision shall prevail. Grandparents shall be consulted on important matters but they shall not interfere in the e4ercise of parental authority by the parents (!rt. 1?+ R! 87I7) n the absence or death of parents+ the grandparents+ and in their default+ the oldest sibling who is at least 1? years old or the relative who has actual custody shall e4ercise parental authority unless a guardian has been appointed. (!rt 18+ R! 87I7) !rt.77J+ 3$ does not ma'e a distinction as to the amount of the minor@s property when it stated that the father and mother shall be the legal guardian of the property of their unemancipated children without need of court appointment 0ut+ if the mar'et value of the property or annual income U 2J
( Pnce /. Pnce %33. Ahile allegations as to the names+ ages and residences of a minor@s relatives is %urisdictional+ the same may not be necessary where the petition was filed by the minor@s relatives themselves. >nder the rules on guardianship of minors+ the phrase Bwithin the = th civil degreeC was inserted in §6e to put a limit to the number of relatives who shall be notified.
Crrectin f a Minr<" Na9e may be made by motion. Sufficienc f )erificatin *o particular form is prescribed it is sufficient if the petition is dated+ signed and sworn to and duly certified in a manner similar to the practice formerly prevailing in the case of sworn bills and answers. A Defect in t4e Petitin+ under the 3$ and the Ro$+ does not render the issuance of letters of guardianship void. Sectin ,. Court to set time for hearing; Notice thereof. – Ahen a petition for the appointment of a general guardian is filed+ the court shall fi4 a time and place for hearing the same+ and shall cause reasonable notice thereof to be given to the persons mentioned in the petition residing in the province+ including the minor if above 1= years of age or the incompetent himself+ and may direct other general or special notice thereof to be given.
Ntice f a##licatin an! 4earin$ shall be served by the court on (1) the persons mentioned in the petition residing in the 2hilippines and (7) the minor himself if above 1=L the incompetent himself.
Ntice a" a 'uri"!ictinal Reuire9ent *otice is normally essential in order to confer % urisdiction on the court where a petition for guardianship is filed+ over the person of the minorLincompetent. t has been held that lac' of notice renders the appointment of a guardian void and sub%ect to collateral attac'. Sectin ?. Opposition to petition. – (ny interested person may, by filing a written opposition, contest the petition on the ground of majority of the alleged minor, competency of the alleged incompetent, or the unsuitability of the person for whom letters are prayed, and may pray that the petition be dismissed, or that letters of guardianship issue to himself, or to any suitable person named in the opposition" Grun!" fr filin$ an ##"itin pposition must be in writing but need not be verified. Aho may file: !ny person interested in the personLproperty of the ward "owever+ a creditor and mortgagee may not be appointed a minor@s guardian as no man can serve two masters. Grounds: a. ma%ority of alleged minor b. competency of alleged incompetent c. incompetency of person for whom letters are prayed
he oppositor may pray for dismissal of petition or that letters be issued to him or another suitable person. Aith respect to minors+ the grounds stated in this section is not e4haustive since guardianship may also be opposed on the ground of non-termination of the parental authority of the parents of the minor. B!mong othersC is added to §1< of the Rules on guardianship of minors in order not to limit the grounds for filing an opposition to a petition for guardianship to those enumerated. Garc4itrena /. Stel6 7? P4il. 23. f the interested person is a creditor and mortgagee of the estate of the minor+ he cannot be appointed guardian of the person and property of the latter. *o man can serve two masters.
At w4at "ta$e f t4e #r cee!in$" an ##"itin 9a be file! hough dismissal of an opposition is appealable+ opposition must first be addressed and resolved by the lower court and not for the first time on appeal. Sectin 3. Hearing and order for etters to issue. – (t the hearing of the petition the alleged incompetent must be present if able to attend, and it must be shown that the re&uired notice has been given" %hereupon the court shall hear the evidence of the parties in support of their respective allegations, and, if the person in &uestion is a minor, or incompetent it shall appoint a suitable guardian of his person or estate, or both, with the powers and duties hereinafter specified" I""uance f letter" !i"cretinar n t4e court I""uance f letter" !urin$ #en!enc f an a##eal %+ranci"c /. CA6 %0?. !s the primary ob%ective for appointment of a guardian is protection of the ward+ e4ecution pending appeal for urgent and compelling reasons is a matter within the sound discretion of the $ and the appellate court will not interfere unless there has been grave abuse. Juantu9 f e/i!ence reuire! fr i""uance f letter" $ompetent evidence which is clear and definite+ demonstrating the facts necessary to sustain the order Cntent" f t4e r!er he order issuing letters of guardianship must be sufficient in form and substance and statutory reDuirements as to contents must e complied with. he order must identify the ward+ but the ward need not be named if he is otherwise sufficiently identified. Cn"i!eratin" in t4e a##int9ent f a $uar!ian %+ranci"c /. CA6 %0? he court may consider the financial situation+ the physical condition and sound %udgment+ prudence and trustworthiness+ the morals+ character and conduct+ and the present and past history of a prospective appointee as well as the probability of his being able to e4ercise the powers and duties of a guardian for the full period during which guardianship will be necessary. ! guardian may be removed if he becomes insane+ or otherwise incapable or unsuitable+ or has wasted the estate or failed to ma'e return or render an account ,< days from the due date.
he best interests of a ward can override procedural rules and even the rights of parents to the custody of their children.
Or!er f #reference in a##int9ent f $uar!ian he Rules on guardianship do not contain any order or preference in the appointment of guardians+ not li'e the matter of who will be administrator for the settlement or distribution of the estate. +inalit f t4e a##int9ent he e4ecution of the final %udgment or order shall issue as a matter of right only upon the e4piration of the period to appeal therefrom if no appeal has been duly perfected. Sectin 5. When and how guardian for nonresident appointed; Notice. – Ahen a person liable to be put under guardianship resides without the 2hilippines but has estate therein+ any relative or friend of such person+ or any one interested in his estate+ in e4pectancy or otherwise+ may petition a court having %urisdiction for the appointment of a guardian for the estate+ and if+ after notice given to such person and in such manner as the court deems proper+ by publication or otherwise+ and hearing+ the court is satisfied that such nonresident is a minor or incompetent rendering a guardian necessary or convenient+ it may appoint a guardian for such estate.
Ancillar $uar!ian"4i# means a guardianship in a state other than that in which guardianship is originally granted and which is subservient and subsidiary to the later" (Johannes v. Harvey, 43 Phil 175) 'uri"!ictin f t4e curt /er nnre"i!ent" ! court of a state in which an incompetent has property may appoint a guardian to ward@s estate %urisdiction may be acDuired through publication. 2roceeding to declare a person insane is in personam+ therefore personal service is necessary. 2ersonal service is also necessary when alleged incompetent is a resident who is temporarily abroad. n such a case+ publication alone is insufficient. Preference in a##int9ent of a guardian will ordinarily given, on the principles of comity, to a person already clothed with the authority of guardian in the ward/s own country" Sectin 7. !arents as guardians. – 0hen the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian" 0hen the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the child1s property, with the duties and obligations of guardians under these rules, and shall file the petition re&uired
by section 2 thereof" For good reasons however, appoint another suitable person"
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the court may,
Guardian is a stranger+ or a parent who has remarried.
Re9e! a$ain"t a $uar!ian w4 !i"#"e! f t4e #r#ert
T4i" #r/i"in 4a" been !ee9e! 9!ifie! b t4e R(LE ON G(ARDIANS@IP O+ MINORS %See A##en!i; FA fr t4e te;t Pr/i"in" f t4e +a9il C!e Art. 223. he father and the mother shall %ointly e4ercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. n case of disagreement+ the father;s decision shall prevail+ unless there is a %udicial order to the contrary. Ahere the mar'et value of the property or the annual income of the child e4ceeds 2J<+<<<+ the parent concerned shall be reDuired to furnish a bond in such amount as the court may determine+ but not less than ten per centum (1
&endees pre%udiced by the illegal transactions of a natural guardian involving the property of a minor have no cause of action against subseDuent legal owners+ only against a natural guardian but only to recover damages %)alencia /. La$!a9e Jualificatin" f Guar!ian" f 9inr"
he R$ does not have a provision on the Dualifications which the court may consider in appointing a guardian. he Rules on guardianship of minors contain a provision stating the Dualifications of guardians (§J). hese were ta'en mainly from 3rancisco vs. $!. o
Sectin 0. ervice of #udgment. – Final orders or judgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated" !rticle =<8 ($$): n cases of legal separation+ adoption+ naturali#ation and other %udicial orders mentioned in the preceding article+ it shall be the duty of the $ler' of $ourt who issued the decree to ascertain whether the same has been registered and if this has not been done+ to send a copy of the said decree to the civil registry of the city or municipality where the court is functioning.
Natural $uar!ian cannt !i"#"e f t4e #r#ert f t4e c4il! ! parent does not have the power to dispose of or encumber the property of his child. !ny disposition made by the parent is null and void. nly a %udicial guardian may dispose of his ward@s property and only with prior court approval. he new rule on the guardianship of minors will be suppletory to the 3$ on guardianship if the father and mother %ointly e4ercise legal guardianship over the property of their unemancipated common child. he Rules on guardianship of minors will apply when $hild is under substitute parental authority o
3inancial condition (c) 2hysical condition (b) o Sound %udgment+ prudence and trustworthiness (g) o 5orals (a) o $haracter and conduct (b) o 2resent and pass history of the prospective appointee o 2robability of his being able to e4ercise the powers and duties of the guardian he committee added: relationship of trust with the minor+ and his lac' of conflict of interest with the minor. o
>nder the rules on guardianship of minors+ the register of deeds of the place where the property is located should be served with a copy of the %udgment appointing a guardian of a minor. ( §1,) he annotation of the %udgmentLorder on the title will serve as a notice to third persons dealing with the property of the e4istence of the g uardianship and the limited authority of the guardian.
R(LE 1? =ONDS O+ G(ARDIANS SECTION >. Bond to be given before issuance of letters. Amount. Conditions.
0efore a guardian appointed enters upon the e4ecution of his trust+ or letters of guardianship issue+ he shall give a bond+ in such sum as the court directs+ conditioned as follows: (a) o ma'e and return to the court+ within three (,) months+ a true and complete inventory of all the estate+ real and personal+ of his ward which shall come to his possession or 'nowledge or to the possession or 'nowledge of any other person for him (b) o faithfully e4ecute the duties of his trust+ to manage and dispose of the estate according to these rules for the be st interests of the ward+ and to provide for the proper care+ custody+ and education of the ward (c) o render a true and %ust account of all the estate of the ward in his hands+ and of all proceeds or interest derived therefrom+ and of the management and disposition of the same+ at the time designated by these rules and such other times as the court directs+ and at the e4piration of his trust to settle his accounts with the court and deliver and pay over all the estate+ effects+ and moneys remaining in his hands+ or due from him on such settlement+ to the person lawfully entitled thereto (d) o perform all orders of the court by him to be performed. =OND
Pur#"e a. o protect the property of the minor to the end that he may be assured of an honest administration of his funds during his minority. b. o serve as security to those interested in the property settlement of the estate. Nece""it a guardian cannot ta'e possession of and control the property of his ward unless he has given the bond for the faithful performance of his duties. A9unt & fi4ed by the court with reference to the ward@s estate 4en bn! tae" effect - as of the day of its date and of his appointment and not when the bond was filed
SEC. 2. When new bond may be required and old sureties discharged. Ahenever it is deemed necessary+ the court may reDuire a new bond t o be given by the guardian+ and may discharge the sureties on the old bond from further liability+ after due notice to interested persons+ when no in%ury can result therefrom to those interested in the estate. A!!itinal =n! Di"cretinar & court may allow additional security when it seems proper for the protection of the ward@s e"tate. Reuire! & when first bond was insufficient+ it is the duty of the court to reDuire additional bond. SEC. ,. Bonds to be filed. Actions thereon. Every bond given by a guardian shall be filed in the office of the cler' of the court+ and+ in case of the breach of a condition thereof+ may be prosecuted in the same proceeding or in a separate action for the use and benefit of the ward or of any other person legally interested in the estate.
0onds will be construed and enforced in accordance with the intention and scope of the guardian and his surety in giving it+ to secure the wards in their individual rights. Suretie" Liabilit f t4e "uretie" must depend upon the e4tent of the obligation created by the terms of the bond and the statutes which can be read into it.
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!uratin f liabilit is a continuing one against the obligors and their estates until all of its conditions are fulfilled. %Guerrer /. Teran6 >, P4il. 2>2 Ahen %udgment is entered against the sureties+ they may demand the benefit of a levy of the principal@s property+ the a mount of which must be sufficient to satisfy the debt. It i" t4e !ut f t4e "uretie" to see that the conditions on the guardian@s bond are fulfilled by the guardian.
R(LE 13 SELLING AND ENC(M=ERING PROPERTY O+ ARD SECTION >. etition of guardian for leave to sell or encumber estate. Ahen the income of an estate under guardianship is insufficient to maintain the ward and his family+ or 9to maintain and educate the ward when a minor/+ or when it appears that it is for the benefit of the ward that is real estate or some part thereof be sold+ or mortgaged or otherwise encumbered+ and the proceeds thereof put out at interest+ or invested in some productive security+ or in the improvement or security of other real estate of the ward+ the guardian may present a verified petition to the court by which he was appointed setting forth such facts+ and praying that an order issue authori#ing the sale or encumbrance. / modified by Rule on Guardianship of 5inors A $uar!ian 9a "ell r encu9ber t4e e"tate f t4e war! w4en a. the income of an estate under guardianship is insufficient to maintain the ward and his family b. it appears that it is for the benefit of the ward that is real estate or some part thereof be sold+ or mortgaged or otherwise encumbered+ and the proceeds thereof put out at interest+ or invested in some productive security+ or in the improvement or security of other real estate of the ward he grounds enumerated in this section are e4clusive. *o order will be issued for another purpose not found in this rule. Sale of the ward@s realty without court order is /i!. %Intn /. Juintana6 0> P4il 17 SEC. 2. !rder to show cause thereu"on. f it seems probable that such sale or encumbrance is necessary+ or would be beneficial to the ward+ the court shall ma'e an order directing the ne4t of 'in of the ward+ and all persons interested in the estate+ to appear at a reasonable time and place therein specified to show cause why the prayer of the petition should not be granted.
Ne;t f in & include those relatives who share in the estate according to the statute of distribution+ including those claiming per stripes or by representation. %abate /. Pnce6 17 P4il >885 L#e /. Te!r. nly the children have an interest in the land of their o father+ besides the creditors+ and only they or the creditor who may have been pre%udiced by the sale have a right to ob%ect thereto. *otice may not be dispensed with e4cept where the ne4t of 'in and all persons interested in the estate are her mother and guardian+ uncles and aunts who agreed to ma'e the transfer of their respective shares in the property to the corporation to be organi#ed. %Sin$c /. Ln$a6 3> P4il 387* Par! !e Ta/era /. El @$ar +ili#in Inc.6 10 P4il ?0>
SEC. ,. #earing on return of order. Costs. !t the time and place designated in the order to show cause+ the court shall hear the proofs and allegations of the petitioner and ne4t of 'in+ and other persons interested+ together with their witnesses+ and grant or refuse the prayer of the petition as the best interests of the ward reDuire. he court shall ma'e such order as to costs of the hearing as may be %ust.
4et4er it i" t t4e intere"t f t4e war! t4at t4e "ale "4all be 9a!e the sole ob%ect of the inDuiry in an a##licatin to sell he court should ascertain and determine whether grounds for selling e4ist and should select the part or parts of the property which can be disposed of.
SEC. ?. Contents of order for sale or encumbrance$ and how long effective. Bond.
f+ after full e4amination+ it appears that it is necessary+ or would be beneficial to the ward+ to sell or encumber the estate+ or some portion of it+ the court shall order such sale or encumbrance and that the proceeds thereof be e4pended for the maintenance of the ward and his family+ or the education of the ward+ if a minor+ or for the putting of the same out at interest+ or the investment of the same as the circumstances may reDuire. he order shall specify the causes why the sale. or encumbrance is necessary or beneficial+ and may direct that estate ordered sold be disposed of at either public or private sale+ sub%ect to such conditions as to the time and manner of payment+ and security where a part of t he payment is deferred+ as in the discretion of the court are deemed most beneficial to the ward. he original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale+ but the %udge may+ if deemed e4pedient+ reDuire an additional bond as a condition for the granting of the order of sale. *o order of sale granted in pursuance of this section shall continue in force more than one (1) year after granting the same+ without a sale being had.
3or the ward@s title to pass to the purchaser+ the sale must first be confirmed by the court. >ntil such confirmation+ not even eDuitable title passes to the purchaser. - e4cept: authority to sell does not impose the necessity of confirmation by o the court. Grant of authority to sell is within the discretion of the court+ should it eventually find such sale unnecessary+ it may refuse to confirm the sale or encumbrance. Cnfir9atin 9a nt be nece""ar where the court@s order e4pressly authori#ed the guardian to e4ecute and deliver to the purchaser definitely named+ a deed of conveyance to a parcel of land specifically described at a price already fi4ed and it was intended to be the approval itself of the sale that was already perfected or agreed upon by the seller and the buyers+ needing only a %udicial go-ahead signal to reduce the agreement to the statutory form. T4e $uar!ian cannt acuire b #urc4a"e even at a public or %udicial auction+ the property of his ward. (!rt. 1=81 $$) Ahen authority to sell was obtained under suspicious circumstances indicative of fraud and collusion+ the guardian@s sale may subseDuently be annulled by the court. %Men!:a /. Labra!r6 51 P4il ,10 "owever+ the cancellation of the guardian@s authority to sell will not and could not affect the rights of the buyer in such a case. %Mar$ate /. Rabacal Sale of a ward@s estate cannot be attac'ed collaterally in the registration proceedings. ! separate action to avoid or rescind the sa le should be filed instead. he guardian@s authority to sell shall be not be effective for more than one year after it has been granted.
L#e: /. Te!r %38. A##eal is the proper remedy against an order of the court authori#ing the sale of the ward@s property.
it4 t4e enact9ent f t4e +a9il c!e6 the property of the minor is no longer liable for the maintenance of the 3amily. >nder !rt 77I+ the property of the child is to be devoted e4clusively for his support and education+ unless the title or transfer provides otherwise. he rights of the parents to the fruits and income of the child@s property shall be limited primarily to the child@s support and secondarily to the collective daily needs of the family. 3$ has effectively abolished parental usufruct over the child@s property and income (§77)
SEC. 3. Court may order investment of "roceeds and direct management of estate.
he court may authori#e and reDuire the guardian to invest the proceeds of sales or encumbrances+ and any other of his ward;s money in his hands+ in real estate or otherwise+ as shall be for the best interest of all concerned+ and may ma'e such other orders for the management+ investment+ and disposition of the estate and effects+ as circumstances may reDuire.
his section+ while reDuiring %udicial authority in order that a guardian may invest the ward@s money+ does not provide that said authority must always be either #rir t r e;#re""e!. P4ili##ine Tru"t C. /. =alle"ter"6 10 P4il >887. his rule see's to protect the funds of the ward against imprudent or unsafe investments by the guardian. t is the guardian@s duty to apply the proceeds to the purposes for which the land was sold. Ste$ner H P4ili##ine Tru"t C. /. Ste$ner6 >82 P4il >,>. he court@s approval of the annual inventories and accounts submitted by the guardian+ with the conformity andLor acDuiescence of the mother of the minors+ wherein the Duestioned investment was mentioned and accounted for amounts to a ratification of the acts of the guardian and compliance with the provisions of this rule.
R(LE 15 GENERAL POERS AND D(TIES O+ G(ARDIANS Sec. >. T w4at $uar!ian"4i# "4all e;ten!. ! guardian appointed shall have the care and custody of the person of his ward+ and the management of his estate+ or the management of the estate only+ as the case may be. he guardian of the estate of a nonresident shall have the management of all the estate of the ward within the 2hilippines+ and no court other than that in which such guardian was appointed shall have %urisdiction over the guardianship. %!&'( A%) CA('(*
E;tent f Guar!ian"4i# he policy of the law does not favor the award of guardianship of an infant@s person to one party and the guardianship of his estate to another+ the reason being that from the separation of these duties+ while little benefit can be anticipated+ many in conveniences and considerable increase of e4pense must necessarily follow "owever+ a separate guardian of the person and of t he estate may be appointed by the court+ for a person may be competent to discharge certain duties and incompetent to discharge others. hus+ a widow mother may be competent guardian for the person of her minor children but because of her want of business e4perience is incompetent to manage the minor@s estate ( +a%rence v. ,homas)
Ri$4t t Cu"t! he lawfully appointed guardian of the person is entitled to custody of the ward+ his right in this respect being superior to any rights of relatives Similarly+ the ward is under the legal duty to remain with and submit himself to the control of the guardian Pwer f t4e Curt /er t4e Cu"t! f t4e ar! Right of guardian to the custody of the ward is * absolute it is sub%ect to control by the court he controlling consideration in the matter of custody as in the matter of selecting the guardian+ is the best interest of the child Su##rt an! Cu"t! f t4e ar! he rights of the guardian to the custody and support of the ward+ and the services and earnings of the ward carry with them the obligation to provide for the proper support and education of the ward+ though he is not under any obligation to support the ward out of his own means. he duty of the ordinary guardian e4tends only to proper and suitable application of the means of the ward. Sub%ect to the supervisory powers of the court+ the manner and details of a ward@s education are committed to the discretion of the guardian+ whose primary duty is to decide whether or not allowance should be made for the support and education of the infant ward n the e4ecution of his inherent duty to maintain and protect the infant ward+ the guardian needs no court order 5oney properly paid by the guardian for the education of his ward cannot be recovered from the person to whom it was paid by either the guardian or the ward Guar!ian<" cntrl /er ar!<" E"tate ! lawfully appointed guardian of the estate has a general authority over the property and affairs of his ward he guardian is a trustee+ and persons dealing with him are bound to 'now his powers and duties and the rules by which he is governed Jue"tin<" f Title t Pr#ert in t4e @an!" f t4e Guar!ian he court in the guardianship proceeding is concerned solely with the ward@s care and custody and proper administration of his properties+ thus conflicts regarding t itle to property in the hands of the guardian should be litigated in a separate proceeding Guar!ian A! Lite9 %GAL ! G!K is any competent person appointed by the court for purposes of a particular action or proceeding involving a minor Li9 Si @ue /. La#i: %30. ne who has been appointed a G!K by the court for minor heirs is not acting in the capacity of a negotiorum gestor and must have some e4press authority from the person he purports to represent Sec. 2. Guar!ian t #a !ebt" f war!. Every guardian must pay the ward;s %ust debts out of his personal estate and the income of his real estate+ if sufficient if not+ then out of his real estate upon obtaining an order for the sale or encumbrance thereof. NOTES AND CASESPr4ibitin n Tain$ ar!<" Pr#ert wit4ut curt a##r/al +ernan!e: /. =ell %58. 2roperty and effects of the ward are under the control of the court and may not be ta'en or e4pended without the latter@s permission Lawful P""e""in f t4e ar!<" E"tate )ilria /. A!9ini"tratr f )eteran Affair" %37. Guardian is the lawful possessor of monies and properties received by him for and on behalf of the ward.
Sec. ,. Guar!ian t "ettle accunt"6 cllect !ebt"6 an! a##ear in actin" fr war!. ! guardian must settle all accounts of his ward+ and demand+ sue for+ and receive all debts due him+ or may+ with the approval of the court+ compound for the same and give discharges to the debtor+ on receiving a fair and %ust dividend of the estate and effects and he shall appear for and represent his ward in all actions and special proceedings+ unless another person be appointed for that purpose. NOTES AND CASES* Pwer f t4e Guar!ian t recei/e 9ne !ue t t4e war! Guardian has the right to collect all the assets of the ward+ and to reduce to possession the ward@s choses in action and collect the debts and obligation due him $ollection of assets and debts+ being a ministerial act+ guardian may employ an agent to perform the duty for him+ but such agent must be chosen with reasonable care and must be supervised by him with the same care Liabilit f t4e Guar!ian fr +ailure t Cllect f negligence is attendant+ the guardian will be liable for the assets lost thereby+ which may have been collected had he been diligent "e is not liable if he acts in good faith and in the e4ercise of reasonable diligence =rin$in$ Suit" b Guar!ian >nder R, SJ+ R$+ a minor or an insane person may sue or be sued+ in cases provided by law+ through his father+ mother+ guardian+ or if he has none+ through a G!K appointed by the court hus+ if a legal proceeding is necessary to preserve the estate of the ward the Guardian may institute the action in the name of the ward+ by himself or some other person as ne4t friend Aut4rit f t4e Guar!ian t C9#r9i"e fr ar! Guardian has authority to compromise a claim e4isting in favor of the ward 0> prior approval of the $ourt for a compromise by the guardian should be first secured. Aithout such approval+ the action by the guardian remains open for challenge C9#r9i"e b GAL General rule: G!K has no authority to act or bind the minor in any transaction with regard to his estate ET$E2: with court approval %Sant D9in$ /. Sant D9in$6 >8, P4il 7,. Sec. ?. E"tate t be 9ana$e! fru$all6 an! #rcee!" a##lie! t 9aintenance f war!. ! guardian must manage the estate of his ward frugally and without waste+ and apply the income and profits thereon+ so far as may be necessary+ to the comfortable and suitable maintenance of the ward and his family+ if there be any and if such income and profits be insufficient for that purpose+ the guardian may sell or encumber the real estate+ upon being authori#ed by order so to do+ and apply so much of the proceeds as may be necessary to such maintenance. NOTES AND CASESDut f t4e Guar!ian t Mana$e t4e e"tate fru$all Guardian must manage the ward@s property frugally and without waste Per"nal Mana$e9ent f t4e E"tate Guardian must give his personal care and attention to the maintenance of the ward@s estate and to 'eep t he funds and property of the ward under his own control ubel!ia /. @er9an"6 78 P4il ?>1. f he delegates his duties to another+ he shall be responsible for the other@s actions in the premises and for any resulting loss unless it be shown that he used reasonable care and discretion in the manner of selecting those whom he employs. De$ree f Care t be Ob"er/e! b t4e Guar!ian
Guardian must be faithful+ vigilant and competent in the management of the estate of the ward "e is bound to e4ercise such diligence and prudence as reasonable men ordinarily employ in the conduct of their own affairs and will be held liable for any loss which result from his failure to e4ercise such prudence and diligence "owever+ he is not an insurer or reDuired to e4ercise a higher degree of prudence and diligence than that stated and if his conduct measures up to his standard+ he is not liable for losses which have occurred through his errors of %udgment
Sec. 3. Guar!ian 9a be aut4ri:e! t Bin in #artitin #rcee!in$" after 4earin$. he court may authori#e the guardian to %oin in an assent to a partition of real or personal estate held by the ward %ointly or in common with others+ but such authority shall only be granted after hearing+ upon such notice to relatives of the ward as the court may direct+ and a careful investigation as to the necessity and propriety of the proposed action.
embe##led+ concealed or conveyed property belonging to the ward for the purpose of obtaining information which may be used in the separate action ET$E2: in e4treme cases where property clearly belongs to the ward or where his title thereto has been already decided
Sec. 7. In/entrie" an! accunt" f $uar!ian"6 an! a##rai"e9ent f e"tate". & ! guardian must render to the court an inventory of the estate of his ward within three (,) months after his appointment+ and annually after such appointment an inventory and account+ the rendition of any of which may be compelled upon the application of an interested person. Such inventories and accounts shall be sworn to by the guardian. !ll the estate of the ward described in the first inventory shall be appraised. n the appraisement the court may reDuest the assistance of one or more of the inheritance ta4 appraisers. !nd whenever any property of the ward not included in an inventory already rendered is discovered+ or succeeded to+ or acDuired by the ward+ li'e proceedings shall be had for securing an inventory and appraisement thereof within three (,) months after such discovery+ succession+ or acDuisition.
NOTES AND CASESGuar!ian 9a Bin Partitin Prcee!in$" ReDuirements: (a) such permission or authori#ation by the court be granted only after hearing the petition for the grant of such authority (b) there is notice of the partition to the relatives of the ward and (c) authori#ation is granted only after a careful investigation as to the necessity and propriety of the proposed action A9icable "ettle9ent 2artition may be %udicial or amicable 4en Parent" 9a Re#re"ent ar! in Partitin Ahen the interest of either parent conflicts with that of the children under his authority+ a third party will be appointed to represent then in law and in fact (!rt. 1IJ+ $$) Sec. 5. Prcee!in$" w4en #er"n "u"#ecte! f e9be::lin$ r cncealin$ #r#ert f war!. & >pon complaint of the guardian or ward+ or of any person having actual or prospective interest in the estate of the ward as creditor+ heir+ or otherwise+ that anyone is suspected of having embe##led+ concealed+ or conveyed away any money+ goods+ or interest+ or a written instrument+ belonging to the ward or his estate+ the court may cite the suspected person to appear for e4amination touching such money+ goods+ interest+ or instrument+ and ma'e such orders as will secure the estate against such embe##lement+ concealment or conveyance.
NOTES AND CASESDut f t4e Guar!ian t Sub9it In/entr 3iling of the inventory is reDuired for it will constitute the basis of subseDuent accountings and settlements +ailure f t4e Guar!ian t I nclu!e a Pr#ert f t4e ar! !ny interested person may file a petition before the court to compel the guardian to include such additional property in the inventory Crrectne"" f t4e Guar!ian<" Re#rt Guardianship court has ample discretion and is not limited to the relief prayed for in the pleadings alone but may grant whatever amount it may find the wards are entitled to as shown by the evidence Sec. 0. 4en $uar!ianQ" accunt" #re"ente! fr "ettle9ent. & E4penses and compensation allowed. >pon the e4piration of a year from the time of his appointment+ and as often thereafter as may be reDuired+ a guardian must present his account to the court for settlement and allowance. n the settlement of the account+ the guardian+ other than a parent+ shall be allowed the amount of his reasonable e4penses incurred in the e4ecution of his trust and also such compensation for his services as the court deems %ust+ not e4ceeding fifteen per centum of the net income of the ward . NOTES AND CASES-
NOTES AND CASESPur#"e f t4e Rule Cui /. Picci6 17 P4il 7>2. o secure evidence from persons suspected of embe##ling+ concealing or conveying away any property of the ward so as to enable the guardian to institute the appropriate action to obtain possession of and secure title to said property Curt cannt r!er t4e Deli/er f t4e ar!<" Pr#ert Ahere title of any property said to be embe##led+ concealed or conveyed is in Duestion+ the determination of said right+ must be determined in a separate action and not in guardianship proceedings GE*ER!K rule: he court in the separate action has the power to order t he delivery of the ward@s property found to be embe##led+ concealed and conveyed and the court in guardianship proceedings has %urisdiction only to cite persons suspected of having
Nece""it fr Accuntin$ Safety of the Guardian+ the reDuirement of business prudence and the welfare of the ward and his estate demand that so long as unaccounted property of the ward remains in the possession of the guardian+ he is reDuired to render an account and is not entitled to credit e4penditures until he has filed an account showing its terms. Sufficienc f Accunt an! Settle9ent !ccounts submitted must be complete and accurate a motion for a more specific statement may be resorted to if there is failure of accounts to state sufficient facts to ma'e a clear showing t should be rendered under oath Penalt fr +ailure t Ren!er Accunt"
Drnila /. L#e:6 , P4il ,58. Guardian may be imprisoned for failure to render his account and he can be ordered to deliver the property of the estate to his successor
E;#en"e" Per9itte! an! Allwance" $rante! t t4e Guar!ian Guardian is entitled to compensation for his services rendered with the authority of the $ourt Ra9" /. PN=6 %37. E4tra %37. E4tra allowance may be made in each case as the importance and difficulty of the management of the estate may reDuire. 4en Guar!ian 9a be !enie! c9#en"atin 3ailure to file annual accounts may call for the forfeiture of the guardian@s compensation or the allowance of an amount less than would otherwise have been considered reasonable. ET$2E: he managed the estate in good faith and neglect to file an account has not operated to the in%ury of the ward but the matter rests solely on the discretion of the $ourt Di"tin$ui"4e! fr9 C9#en"atin t E;ecutr r A!9ini"tratr E;ecutrA!9ini"tratr 2=.<
Guar!ian *ot more than 1JP of the net income of the ward
Guar!ian f t4e Per"n entitle! t C9#en"atin Guardian of the person of a minor who is not related to him but charged with the duty to see to his care and support is logically entitled to some compensation for his services where his ward has property or income from which compensation may be legally paid (!amos v. 0N)
R(LE 17 TERMINATION O+ G(ARDIANS@IP Sec. >. Petitin t4at c9#etenc f war! be a!Bu!$e!6 an! #rcee!in$" t4ereu#n. ! person who has been declared incompetent for any reason+ or his guardian+ relative+ or friend+ may petition the court to have his present competency %udicially determined. he petition shall be verified by oath+ and shall state that such person is then competent. >pon receiving the petition+ the court shall fi4 a time for hearing the Duestions raised thereby+ and cause reasonable notice thereof to be given to the guardian of the person+ so declared incompetent+ and to the ward. n the trial+ the guardian or relatives of the ward+ and+ in the discretion of the court+ any other person+ may contest the right to the relief demanded+ and witnesses may be called and e4amined by the parties or by the court on its own motion. f it be found that the person is no longer incompetent+ his competency shall be ad%udged and the guardianship shall cease. NOTES AND CASESTe9#rar nature f Guar!ian"4i# Celi" /. Cafuir6 05 P4il 33?. Guardianship terminates when minority has passed or incapacity has ceased
4 9a file #etitin 2erson previously declared incompetent+ guardian+ relative or friend Grun!" fr Ter9inatin death of guardian or ward marriage 9 or voluntary emancipation $ivil $ode guardianship over the property remains+ only guardianship over the person is terminated 3amily $ode guardianship over property and person are terminated !d%udgment of $ompetency Nature f Prcee!in$ fr Re"tratin f Ca#acit f Re9/al f Guar!ian ! continuation of the original guardianship proceeding neither new nor independent Cntent f Petitin &erified and must state that such person is competent Ntice f @earin$ f Petitin %In R e- Guar!ian"4i# f Inc9#etent '"e !e Inc4au"ti6 ?8 P4il 502 *ot intended as a personal service process in the sense necessary to give %urisdiction over the ward or to the cause and other parties ReDuired merely as assurance that the individual chiefly concerned shall have cogni#ance of what is being done O##"itin n or before the hearing of the petition+ the guardian+ relatives of the ward and in the discretion of the $ourt+ any other person may contest the right to relief demanded Sec. 2. 4en $uar!ian re9/e! r allwe! t re"i$n* New a##int9ent. Ahen a guardian becomes insane or otherwise incapable of discharging his t rust or unsuitable therefor+ or has wasted or mismanaged the estate+ of failed for thirty (,<) days after it is due to render an account account or ma'e a return+ return+ the court court may+ upon reasonable reasonable notice to the guardian+ remove him+ and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto. ! guardian may resign when it appears proper to allow the same and upon his resignation or removal the court may appoint another in his place. NOTES AND CASESGrun!" fr Re9/al wit4in t4e Di"cretin Di"cretin f t4e Guar!ian"4i# Curt Enumeration is e4clusive guardian cannot be removed from office for causes other than those enumerated Pa!illa /. PN= %5>. Removal can be deemed discretionary to the e4tent that the court uses its discretion in appraising whether a person is unsuitable or incapable of discharging his trust +elician /. Ca94rt6 22 P4il 2,3. ! large discretion must be allowed the %udge who deals directly with the parties+ and who+ for this reason+ should be e 4ceptionally well-Dualified to form a correct opinion as to the special needs of the minors+ the character and Dualification of persons whose names are proposed for appointments as guardian+ and the wise and prudent course to be adopted under all the varying circumstances to be found in each particular case. Mi"9ana$e9ent f t4e ar!<" E"tate
f a guardian is found to be negligent in his duties+ causing resulting damage to the ward or his estate+ the person must be removed and changed by the court which appointed him. $ircumstances regarded as neglect or misconduct: i. (a). e4travagant e4travagant e4penditur e4penditures es ii. (b) conversi conversion on of the ward@s ward@s property property to his own use use iii. iii. (c) use of the ward@s ward@s funds funds for the benefit benefit of the guardi guardian an iv. (d) comming commingling ling of funds funds of the the ward with with his own own v. (e) speculatin speculating g with or improperly improperly investi investing ng funds of the ward although the guardian has acted in good faith and from the best of motives vi. (f) ignorance ignorance or imprudence of of the guardian whereby whereby the ward@s interest suffers vii. (g) $onverting $onverting real estate into personality without without order order of the $ourt (5anotoc v. Smith) $onflict of nterests
I99ral cn!uct $ase of immorality or impropriety must be a very strong one in order to %ustify removal of a natural guardian hus+ where a mother+ acting as a guardian is married to a man addicted to using profanity toward her and the children+ it did not %ustify her removal Default" n In/entrie"6 Re#rt" an! Accunt" ! guardian may be removed if he fails for ,< da ys after it is due to render an account or ma'e return+ on reasonable notice to the guardian Re"i$natin b t4e Guar!ian Guardian may file a petition before the guardianship court for permission to resign his trust+ stating the grounds therefor+ and accompanied by a report of the state of his account and an offer to settle the account and deliver the estate over to t he court Partial Re9/al f Guar!ian"4i# Ahere the interest of the infant so reDuires+ the guardian may be retained as guardian of the person although removed as guardian of the estate Re9e! f Guar!ian fr9 Or!er f Re9/al Olarte /. Enriue:6 %58. rder removing a guardian is an order constituting a final determination of his rights and conseDuently said guardian may !22E!K Sec. ,. Ot4er ter9inatin f $uar!ian"4i#. he marriage or voluntary emancipation of a minor ward terminates the guardianship of the person of the ward+ and shall enable the minor to administer his property as though he were of age+ but he cannot cannot borrow borrow money or alienate alienate or encumber encumber real property without without the consent of his father or mother+ or guardian. "e can sue and be sued in court only with the assistance of his father+ mother or guardian. he guardian of any person may be discharged by the court when it appears+ appears+ upon the application application of the ward or otherwise+ otherwise+ that the guardianship is no longer necessary.
!rt. 7,=. Emancipation ta'es place by the attainment of ma%ority. >nless otherwise provided+ ma%ority commences at the age of twenty-one years. !rt. 7,I. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be Dualified and responsible for all acts of civil life+ save e4ceptions established by e4isting laws in special cases.
$ontracting marriage shall reDuire parental consent until the age of 71. *othing in this $ode shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below 71 years of age mentioned in the second and third paragraphs of !rticle 71?< of the $ivil $ode >nder the rules on guardianship of minors+ §7J+ there is only one ground for termination of guardianship emancipation or death of ward /&oluntary emancipation under the amendments introduced by R! I?<8+ is no longer recogni#ed as a ground for the termination of parental authority or guardianship
Sec. ?. Recr! t be e#t b t4e Bu"tice f t4e #eace r 9unici#al Bu!$e. & Ahen a %ustice of the peace or municipal municipal court ta'es cogni#ance cogni#ance of the proceedings proceedings in pursuance of the provisions of these rules+ the record of the proceedings shall be 'ept as in the court of first instance. Sec. 3. Ser/ice f Bu!$9ent. 3inal orders or %udgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated.
PART ). OT@ER SPECIAL PROCEEDINGS R(LE 10 TR(STEES SECTION >. Where trustee a""ointed. ! trustee necessary necessary to carry into effect effect the provisions provisions of a will or written instrument shall be appointed by the Regional rial $ourt in which the will was allowed+ if it be a will allowed in the 2hilippines+ otherwise by the Regional rial $ourt of the province in which the property+ or some portion thereof+ affected by the trust is situated. NOTES >. 4 a##int" t4e tru"tee a. f the will was allowed within the 2hilippines: - R$ in which the will was allowed b. f the Aill was allowed without the 2hilippines (in other cases): - R$ in which the property+ or some portion thereof+ affected by the trust is situated. 2. 4 Ma +ile Petitin fr A##int9ent f Tru"tee - he e4ecutor or administrator or the person appointed as trustee under the will or written instrument ,. Di"cretin f t4e Curt in t4e A##int9ent f a Tru"tee - Tian$c Tian$c /. +ranci"c +ranci"c6 6 50 P4il P4il 5,1. 5,1. he 2ower 2ower to appoin appointt a trustee trustee is !i"cretinar with !i"cretinar with the court and the appellate court will decline to interfere e4cept in cases of clear abuse. hereafter+ hereafter+ upon proper proper showing that the interest interest of %ustice %ustice would be adeDuately adeDuately served with the removal removal of the incumbent incumbent trustees+ it is li'ewise within within its discretion to do so and the appellate court will refuse to interfere in the absence of a showing of grave abuse or whimsical and capricious e4ercise of that discretion. SEC. 2. A""ointment and the "owers of trustee under will$ '+ecutor of former trustee need not administer trust.
f a testator has omitted in his will to appoint a trustee in the 2hilippines+ and if such appointment is necessary to carry into effect the provisions of a will+ the proper Regional rial $ourt may+ after notice to all persons interested+ appoint a trustee who shall have the same rights+ powers and duties and in whom the estate shall vest+ as if he had been appointed appointed by the testator. testator. *o person person succeeding to a trust as e4ecutor or administrator of a former trustee shall be reDuired to accept such trust. NOTES>.
E;erci"e t4e Sun! 'u!$9ent 'u!$9ent b t4e t4e Curt in t4e A##int9ent f a Tru"tee Lren: /. P"a!a". !lthough the will does not name a trustee+ the probate court e4ercises sound %udgment in appointing a trustee to carry into effect the provisions of the will where a trust is act ually created by the will by the provision that certain of the property shall be 'ept together undisposed during a fi4ed period for a stated purpose. 2. Ntice an! Cn"ent f =eneficiar Nt E""ential fr Creatin f Tru"t
SEC. ,. A""ointment and "owers of new trustee under written
court having %urisdiction of the trust a bond in the amount fi4ed by the %udge of said court+ payable to the Government Government of the 2hilippin 2hilippines es and sufficient sufficient and available for the protection of any party in interest+ and a trustee who neglects to file such bond shall be considered to have declined or resigned the trust but the court may+ until further order e4empt a trustee under a will from giving a bond when the testator has directed or reDuested such e4emption+ and may so e4empt any trustee when all persons beneficially interested in the trust+ being of full age+ reDuest the e4emption. Such e4emption may be cancelled by the court at any time+ and the trustee reDuired to forthwith file a bond. NOTES>. +ilin$ f =n! a" a Reuire9ent - trustee appointed by the court i" reuire! t furni"4 a bn! in bn! in order to Dualify him to administer the trust. - e;e9#tin fr9 filin$ f bn! b tru"tee un!er a will- when will- when the testators has directed or reDuested such e4emption or when all persons beneficially interested in the trust+ being of full age+ reDuest the e4emption. Such e4emption may cancelled by the court at any time+ and the trustee reDuired to forthwith file a bond. 2. Effect f +ailure t +ile =n! - he fails to Dualify as trustee.
instrument.
Ahen a trustee under a written instrument declines+ resigns+ dies+ or is removed before the ob%ects of the trust are accomplished+ and no adeDuate provision is made in such instrument for supplying the vacancy+ the proper Regional rial $ourt may+ after due notice to all persons interested+ appoint a new trustee to act alone or %ointly with the others+ as the case may be . Such new trustee shall have and e4ercise e4ercise the same powers+ rights+ rights+ and duties as if he had been originally appointed+ and the trust estate shall vest in him in li'e manner as it had vested or would have vested+ in the t rustee in whose place he is substituted and the court may order such conveyance to be made by the former trustee or his representatives+ or by the other remaining trustees+ as may be necessary or proper to vest the trust estate in the new trustee+ either alone or %ointly with the others. SEC. ?. roceedings where trustee, a""ointed abroad. Ahen land in the 2hilippines is held in trust for persons resident here by a trustee who derives his authority from without the 2hilippines+ such trustee shall+ on petition filed in the Regional rial $ourt of the province where the land is situated+ and after due notice to all persons interested+ be ordered to apply to the court for appointment as trustee and upon his neglect or refusal to comply with such order+ the court shall declare such trust vacant+ and shall appoint a new trustee in whom the trust estate shall vest in li'e manner as if he had been originally appointed by such court. NOTES>. Territrialit f Aut4rit f a Tru"tee - he #wer" of a trustee appointed by the 2hilippine court cannt e;ten! ben! t4e cnfine" f t4e territr f t4e Re#ublic f t4e P4ili##ine" based on the participle that his authority cannot e4tend beyond the %urisdiction of the Republic of the 2hilippines. SEC. 3. &rustee must file bond. 0efore entering on the duties of his trust+ a trustee shall file with the cler' of the
SEC. 5. Conditions included in bond. he following conditions shall be deemed to be a part of the bond whether written therein or not: (a) hat the trustee will ma'e and return to the court+ at at such time as it may order+ order+ a true inventory inventory of all the real and personal personal estate belonging to him as trustee+ which at the time of the ma'ing of such inventory shall have come to his possession or 'nowledge (b) hat he will will manage and dispose of all such estate+ and faithfully faithfully discharge his trust in relation thereto+ according to law and the will of the testator or the provisions of the instrument or order under which he is appointed (c) hat he will will render upon oath at least once a year until his his trust is fulfilled+ unless he is e4cused therefrom in any year by the court+ a true account account of the property property in his hands and of the management management and disposition thereof+ and will render such other accounts as the court may order (d) hat at the e4piratio e4piration n of his trust trust he will settle settle his accounts accounts in court and pay over and deliver all the estate remaining in his hands+ or due from him on such settlement+ to the person or persons entitled thereto. 0ut when the trustee is appointed as a successor successor to a prior prior trustee+ the court may dispense with the ma'ing and return return of an inventory+ inventory+ if one has already been filed+ filed+ and in such case the condition condition of the bond shall be deemed to be altered accordingly.
NOTES>. Manner f E;ecutin$ t4e Tru"t a. he trustee is bound to c9#l "trictl wit4 t4e !irectin" cntaine! in t4e tru"t in"tru9ent defining the e4tent and limits of his authority+ and the nature of his power and duties. b.
"e must carry into effect the trusts " far a" t4e are /ali! an! cn"i"tent wit4 t4e rule" f law6 unless e4empted from the literal performance by the consistent of all persons interested+ and by the sanction of the court. 2. Dutie" f Tru"tee /i"/i" E;ecutr r A!9ini"tratr
TR(STEE holds an office of trust usually governed by the intention of the trustor or the parties (if established by contract) duties of trustees may cover a wider range %Araneta /. Pere:6 %52
EKEC(TOR ADMINISTRATOR holds an office of trust duties are fi4ed andL or limited by law
,. +ilin$ In/entr rule- tru"tee "4ul! 9ae an! return t t4e curt6 a true inventory of all the real and personal estate belonging to him as trustee which at the time of the ma'ing of such inventory shall have come to his possession or 'nowledge. - w4en in/entr can be !i"#en"e! wit4- when the trustee is appointed as a successor to a prior trustee+ the court may dispense with the ma'ing and return of an inventory+ if one has already been filed. ?.
+ait4ful Di"c4ar$e f t4e Tru"t %illu"tratin" - power and duty of a t rustee to collect+ ta'e possession of+ and 'eep in his custody the trust property and assets and to hold+ manage and apply the same to effect the purposes of the trust and to ma'e pa yments and distribution to beneficiaries in accordance with the terms of the trust.(the trustee is chargeable with t he value of the asset lost through a failure in his duty to get them into possession) - must act with reasonable diligence unnecessary and unreasonable delay in securing of the trust property is at his personal ris'. he duty e4tends to income and increments of the estate. - must enforce and collect chooses in action+ debts and d emands belonging to the estate+ e4cept where such collection and enforcement will result in a loss to the estate.
3. Accuntin$ b Tru"tee he cestui ue trust is entitled to a complete accounting from the trustee. 5. Liabilit f Tru"tee fr Tru"t +un!" - R9an Cat4lic =i"4# f 'ar /. !e la Pena6 25 P4il >??. ne who+ having in his possession trust funds+ deposits them in his personal account in a ban'+ and mi4es them with his own funds+ does not thereby assume an obligation different from that under which he would have lain if such deposit had not been made nor does he thereby become liable to repay the money at a ll ha#ards and where such funds are ta'en from the ban' by fur$e ma*or (force ma%or)+ he is relieved from responsibility in relation thereto. 7. Nature f P""e""in b Tru"tee
- Rule- tru"tee cannt acuire t4e tru"t e"tate b #re"cri#tin because for the purpose of prescription+ the possession of the property by the trustee is not an adverse possession+ but only a possession in behalf of the owner of the same. *or can the trustee@s heirs ma'e use of t his possession to establish the prescription which they alleged. n such case+ the period of prescription in favor of the heirs of the trustee should be computed from the date of t he trustee@s death. %Pal9a /. Cri"tbal6 77 P4il 7>2 4en a tru"tee 9a acuire t4e tru"t e"tate b #re"cri#tin: when there is a repudiation of the trust+ such repudiation being open+ clear and uneDuivocal+ 'nown to the cestui ue trust (because in that case+ possession is no longer in behalf of the owner) %Salina" /. Tua:n6 33 P4il 721
0. =reac4 f Tru"t b Tru"tee =reac4 f Tru"t is every violation by a trustee of a duty which eDuity imposes on him+ whether willful and fraudulent or done through negligence or arising through mere oversight or forgetfulness. SEC. 7. A""raisal. Com"ensation of trustee. Ahen an inventory is reDuired to be returned by a trustee+ the estate and effects belonging to the trust shall be appraised and the court may order one or more inheritance ta4 appraisers to assist in the appraisement. he compensation of the trustee shall be fi4ed by the court+ if it be not determined in the instrument creating the trust. NOTES>. C9#en"atin f Tru"tee - shall be fi;e! b t4e curt if not determined in the instrument creating the trust. - lies in court@s discretion 2. +actr" Affectin$ Tru"tee<" C9#en"atin - ti9e t !eter9ine t4e rea"nablene"" f t4e fee" f t4e tru"tee- when he files a claim for the same (note: reasonableness cannot be decided in advance because it depends upon varied circumstances) factr"1. character W powers of the trusteeship 7. ris' and responsibility ,. time =. care W management of the estate ,. Rei9bur"e9ent f Tru"tee fr e;#en"e" - reimbursement for ALL NECESSARY an! REASONA=LE e;#en!iture" which he has made (including e4penses incurred in rendering and proving his accounts and for costs and counsel fees in connection therewith) SEC. 0. -emoval or resignation of trustee. he proper Regional rial $ourt may+ upon petition of the parties beneficially interested and after due notice to the trustee and hearing+ remove a trustee if such removal appears essential in the interests of the petitioners. he court may also+ after due notice to all persons interested+ remove a t rustee who is insane or otherwise incapable of discharging his trust or evidently unsuitable therefor. ! trustee+ whether appointed by the court or under a written instrument+ may resign his trust if it appears to t he court proper to allow such resignation.
NOTES>. @w t effect re9/al f a Tru"tee - t4ru$4 a #etitin (and not an action at law by the beneficiary to recover the property from him) in t4e curt in w4ic4 a##int9ent of the trustee was made+ 2. Grun! fr Re9/al f Tru"tee %nt e;clu"i/e a. if removal is essential in the interests of the petitioner b. trustee becomes insane or otherwise incapable of discharging the trust or evidently unsuitable c. when a trustee assumes to be holding in his own right (operates as a renunciation of the trust) %Martine: /. Gran6 ?2 P4il ,3 d. where trust property is misapplied by the trustee.
*ote: Rules 88 to 1<< have been e4pressly repealed by !5 *o. <7-I-<7+ BRule on !doptionC which became effective on !ugust 77+ 7<<7. Definitin f A!#tin- %uridical act which created between two persons a relation similar to that which results from legitimate filiation. %Pra"nic /. Re#ublic6 10 P4il 551 La4u9 /. Sibul %8,. !doption is a privilegeXnot innate or fundamental but rather a right created by statute. t is a privilege which is governed by the state@s determination of what is for the best welfare of the child. •
Nature f Prcee!in$- In Re9 Re#ublic /. Ele#an %1>. *ot an adversarial proceeding since it has no particular defendant. *o court may entertain it unless it has %urisdiction over the parties and the res the personal status of the parties. $onstructive notice is enough where the residence of the parents un'nown. Ahen the parent has abandoned the child to be adopted+ notice to the former is not reDuired. %Sant" /. Ara:an"6 %55 •
•
,. Re"i$natin b Tru"tee - a trustee is at libert t re"i$n and apply for release on the s ole grounf of unwillingness to act further in the trust. =(T - acce#tance f t4e re"i$natin of a trustee i" nt a 9atter f cur"e (due regard must be had for the interest of the parties to be affected and there must ordinarily be some ground for discharge other tha mere wish of the trustee to be relieved) SEC. 1. roceedings for sale or encumbrance of trust estate. Ahen the sale or encumbrance of any real or personal estate held in trust is necessary or e4pedient+ the court having %urisdiction of the trust may+ on petition and after due notice and hearing+ order such sale or encumbrance to be made+ and the reinvestment and application of the proceeds thereof in such manner as will best effect the ob%ects of the trust. he petition+ notice+ hearing+ order of sale or encumbrance+ and record of proceedings+ shall conform as nearly as may be to the provisions concerning the sale or encumbrance by guardians of the property of minors or other wards. NOTES>. Reuire9ent f 'u!icial Or!er f r Sale r Encu9brance f Tru"t E"tate - trustees have the duty to collect and preserve intact the trust property - they have n #wer t c4an$e the character of the trust property unless it is of a perishable or transitory nature - if a c4an$e i" nece""ar6 #er9i""in of the court should be obtained. 2. E;erci"e b t4e Curt f it" Pwer - court has power to prohibit or order sale (where such action is necessary to the e4ecution of the purposes of the trust+ for the protection of the estate and the rights of the beneficiaries) - generally+ the trust estate or the purposes of the trust must be endangered before the court will act (the mere fact that the contemplated sale will be profitable is not deemed sufficient ground for invo'ing the aid of the court). ,. Dut f Tru"tee Durin$ t4e Sale f Tru"t Pr#ert - the trustee@s conduct of bidding at a sale of trust property is governed by the cardinal principle of his duty of good faith and loyalty to the t rust.
R(LE 11 ADOPTION AND C(STODY O+ MINORS
•
Pur#"e f A!#tin- promotion of the welfare of the child and the enhancement of his opportunities for a useful and happy life. Cn"tructin f A!#tin Statute"- Sant" /. Ara:an" %55. Every reasonable intendment should be sustained to fulfill and promote the interest and welfare of the child. echnical rules of pleading should not be stringently applied to adoption proceedings. ! petition which contain the facts relating to the child and its parents substantially complies with the adoption statute. Prf f A!#tin- he decree of adoption is competent proof of the fact of adoption. he absence of such order by the court cannot be substituted by parole evidence that a child has lived with a person+ not his parent+ and has been treated as a child establish such adoption. "owever+ if it can be proved that there was a decree but was lost+ destroyed or cannot be produced in court+ secondary evidence may be admitted. Show: E4ecution+ E4istence+ loss+ contents. 2edigree testimony is not allowed. •
•
A.9. N. 82582SC 28828082 R(LE ON ADOPTION !. 5ES$ !2* Section 1. Applicabilit* of the !ule. his Rule covers the domestic adoption of 3ilipino children. Sec. 7. /bjectives. (a) he best interests of the child shall be the paramount consideration in all matters relating to his care+ custody and adoption+ in accordance with 2hilippine laws+ the >nited *ations (>*) $onvention on the Rights of the $hild+ >* eclaration on Social and Kegal 2rinciples Relating to the 2rotection and Aelfare of $hildren with Special Reference to 3oster 2lacement and !doption+ *ationally and nternationally+ and the "ague $onvention on the 2rotection of $hildren and $ooperation in Respect of nter-country !doption. (b) he State shall provide alternative protection and assistance through foster care or adoption for every child who is a foundling+ neglected+ orphaned+ or abandoned. o this end+ the State shall:
(i) (i) ensure that every child remains under the care and custody of his parents and is provided with love+ care+ understanding and security for the full and harmonious development of his personality. nly when such efforts prove insufficient and no appropriate placement or adoption within the child@s e4tended family is available shall adoption by an unrelated person be considered. (ii) safeguard the biological parents from ma'ing hasty decisions in relinDuishing their parental authority over their child
Bfoundling.C (f) (f) B!bandoned childC refers to one who has no proper parental care or guardianship or whose parents have deserted him for a period of at least si4 (I) continuous months and has been %udicially declared as such. (g) (g) Bependent childC refers to one who is without a parent+ guardian or custodian or one whose parents+ guardian or other custodian for good cause desires to be relieved of his care and custody and is dependent upon the public for support.
(iii) (iii) prevent the child from unnecessary separation from his biological parents (iv) conduct public information and educational campaigns to promote a positive environment for adoption (v) ensure that government and private sector agencies have the capacity to handle adoption inDuiries+ process domestic adoption applications and offer adoption-related services including+ but not limited to+ parent preparation and post-adoption education and counseling (vi) encourage domestic adoption so as to preserve the child@s identity and culture in his native land+ and only when this is not available shall inter-country adoption be considered as a last resort and (vii) protect adoptive parents from attempts to disturb their parental authority and custody over their adopted child.
!ny voluntary or involuntary termination of parental authority shall be administratively or %udicially declared so as to establish the status of the child as Blegally available for adoptionC and his custody transferred to the epartment of Social Aelfare and evelopment or to any duly licensed and accredited child-placing or child-caring agency+ which entity shall be authori#ed to ta'e steps for the permanent placement of the child.
Sec. ,. 2efinition of ,erms. 3or purposes of this Rule: (a) (a) B$hildC is a person below eighteen (1?) years of age at the time of the filing of the petition for adoption. (b) (b) B! child legally available for adoptionC refers to a child who has been voluntarily or involuntarily committed to the epartment or to a duly licensed and accredited child-placing or child-caring agency+ freed of the parental authority of his biological parents+ or in case of rescission of adoption+ his guardian or adopter(s). (c) (c) B&oluntarily committed childC is one whose parents 'nowingly and willingly relinDuish parental authority over him in favor of the epartment. (d) (d) Bnvoluntarily committed childC is one whose parents+ 'nown or un'nown+ have been permanently and %udicially deprived of parental authority over him due to abandonment substantial+ continuous or repeated neglect and abuse or incompetence to discharge parental responsibilities. (e) (e) B3oundlingC refers to a deserted or abandoned infant or child whose parents+ guardian or relatives are un'nown or a child committed to an orphanage or charitable or similar institution with un'nown facts of birth and parentage and registered in the $ivil Register as a
(h) (h) B*eglected childC is one whose basic needs have been deliberately not attended to or inadeDuately attended to+ physically or emotionally+ by his parents or guardian. (i) (i) B2hysical neglectC occurs when the child is malnourished+ ill-clad and without proper shelter. (%) (%) BEmotional neglectC e4ists when a child is raped+ seduced+ maltreated+ e4ploited+ overwor'ed or made to wor' under conditions not conducive to good health or made to beg in the streets or public places+ or placed in moral danger+ or e4posed to drugs+ alcohol+ gambling+ prostitution and other vices. (') (') B$hild-placement agencyC refers to an agency duly licensed and accredited by the epartment to provide comprehensive child welfare services including+ but not limited to+ receiving applications for adoption+ evaluating the prospective adoptive parents and preparing the adoption home study report. (l) (l) B$hild-caring agencyC refers to an agency duly licensed and accredited by the epartment that provides 7=-hour residential care services for abandoned+ orphaned+ neglected or voluntarily committed children. (m) (m) BepartmentC refers to the epartment of Social Aelfare and evelopment. (n) (n) Beed of &oluntary $ommitmentC refers to the written and notari#ed instrument relinDuishing parental authority and committing the child to the care and custody of the epartment e4ecuted by the child@s biological parents or in their absence+ mental incapacity or death+ by the child@s legal guardian+ to be witnessed by an authori#ed representative of the epartment after counseling and other services have been made available to encourage the biological parents to 'eep the child. (o) (o) B$hild Study ReportC refers to a study made by the court social wor'er of the child@s legal status+ placement history+ psychological+ social+ spiritual+ medical+ ethno-cultural bac'ground and that of his biological family needed in determining the most appropriate placement for him. (p) (p) B"ome Study ReportC refers to a study made by the court social wor'er of the motivation and capacity of the prospective adoptive parents to provide a home that meets the needs of a child. (D) (D) BSupervised trial custodyC refers to the period of time during which a social wor'er oversees the ad%ustment and emotional readiness of both adopters and adoptee in stabili#ing their filial relationship. (r) (r) BKicensed Social Aor'erC refers to one who possesses a degree in bachelor of science in social wor' as a minimum educational reDuirement and who has passed the government licensure e4amination for social wor'ers as reDuired by Republic !ct *o. =,6,.
(s) (s) BSimulation of birthC is the tampering of the civil registry to ma'e it appear in the birth records that a certain child was born to a person who is not his biological mother+ thus causing such child to lose his true identity and status.
(,) he guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. "usband and wife shall %ointly adopt+ e4cept in the following cases:
(t) (t) B0iological 2arentsC refer to the child@s mother and father by nature. (i) if one spouse see's to adopt the legitimate child of one spouse by the other spouse or (u) (u) B2re-!doption ServicesC refer to psycho-social services provided by professionallytrained social wor'ers of the epartment+ the social services units of local governments+ private and government health facilities+ 3amily $ourts+ licensed and accredited c hild-caring and child-placement agencies and other individuals or entities involved in adoption as authori#ed by the epartment. (v) (v) BResidenceC means a person@s actual stay in the 2hilippines for three (,) continuous years immediately prior to the filing of a petition for adoption and which is maintained until the adoption decree is entered. emporary absences for professional+ business+ health+ or emergency reasons not e4ceeding si4ty (I<) days in one (1) year does not brea' the continuity reDuirement.
(ii) if one spouse see's to adopt his own illegitimate child: 2rovided+ however+ hat the other spouse has signified his consent thereto or (iii) if the spouses are legally separated from each other.
n case husband and wife %ointly adopt or one spouse adopts the illegitimate child of the other+ %oint parental authority shall be e4ercised by the spouses.
SE$. J. Who ma* be adopted. he following may be adopted: (w) (w) B!lienC refers to any person+ not a 3ilipino citi#en+ who enters and remains in the 2hilippines and is in possession of a valid passport or travel documents and visa.
SE$. =. Who ma* adopt. he following may adopt:
(1) (1) !ny person below eighteen (1?) years of age who has been voluntarily committed to the epartment under !rticles 1J=+ 1JJ and 1JI of 2.. *o. I<, or %udicially declared available for adoption (7) (7) he legitimate child of one spouse+ by the other spouse
(1) !ny 3ilipino citi#en of legal age+ in possession of full civil capacity and legal rights+ of good moral character+ has not been convicted of any crime involving moral turpitude who is emotionally and psychologically capable of caring for c hildren+ at least si4teen (1I) years older than the adoptee+ and who is in a position to support and care for his children in 'eeping with the means of the family. he reDuirement of a 1I-year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptee@s parent (7) !ny alien possessing the same Dualifications as above-stated for 3ilipino nationals: 2rovided+ hat his country has diplomatic relations with the Republic of t he 2hilippines+ that he has been living in the 2hilippines for at least three (,) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered+ that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country+ and that his government allows the adoptee to enter his country as his adopted child. 2rovided+ further+ hat the reDuirements on residency and certification of the alien@s Dualification to adopt in his country may be waived for the following:
(i) a former 3ilipino citi#en who see's to adopt a relative within the fourth (=th) degree of consanguinity or affinity or (ii) one who see's to adopt the legitimate child of his 3ilipino spouse or (iii) one who is married to a 3ilipino citi#en and see's to adopt %ointly with his spouse a relative within the fourth (=th) degree of consanguinity or affinity of the 3ilipino spouse.
(,) (,) !n illegitimate child+ by a Dualified adopter to raise the status of the former to that of legitimacy (=) (=) ! person of legal age regardless of civil status+ if+ prior to the adoption+ said person has been consistently considered and treated by the adopters as their own child since minority (J) (J) ! child whose adoption has been previously rescinded or (I) (I) ! child whose biological or adoptive parents have died: 2rovided+ hat no proceedings shall be initiated within si4 (I) months from the time of death of said parents. (6) (6) ! child not otherwise disDualified by law or these rules.
Sec. I. 8enue. he petition for adoption shall be filed with the 3amily $ourt of the province or city where the prospective adoptive parents reside.
Sec. 6. Contents of the 0etition. he petition shall be verified and specifically state at the heading of the initiatory pleading whether the petition contains an application for change of name+ rectification of simulated birth+ voluntary or involuntary commitment of children+ or declaration of child as abandoned+ dependent or neglected. 1) 1) f the adopter is a 3ilipino citi#en+ the petition shall allege the following:
(a) (a) he %urisdictional facts (b) (b) hat the petitioner is of legal age+ in possession of full civil capacity and legal rights is of good moral character has not been convicted of any crime involving moral turpitude is emotionally and psychologically capable of caring for children is at least si4teen (1I) years older than the adoptee+ unless the adopter is the biological parent of the adoptee or is the spouse of the adoptee@s parent and is in a position to support and care for his children in 'eeping with the means of the family and has undergone pre-adoption services as reDuired by Section = of Republic !ct *o. ?JJ7.
J) J) f the adoptee is a foundling+ the petition shall allege the entries which should appear in his birth certificate+ such as name of child+ date of birth+ place of birth+ if 'nown se4+ name and citi#enship of adoptive mother and father+ and the date and place of their marriage. I) I) f the petition prays for a change of name+ it shall also state the cause or reason for the change of name.
n all petitions+ it shall be alleged: 7) 7) f the adopter is an alien+ the petition shall allege the following: (a) he first name+ surname or names+ age and residence of the adoptee as shown by his record of birth+ baptismal or foundling certificate and school records. (a) (a) he %urisdictional facts (b) hat the adoptee is not disDualified by law to be adopted. (b) (b) Sub-paragraph 1(b) above (c) he probable value and character of the estate of the adoptee. (c) (c) hat his country has diplomatic relations with the Republic of the 2hilippines (d) (d) hat he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country and his government allows the adoptee to enter his country as his adopted child and reside there permanently as an adopted child and (e) (e) hat he has been living in the 2hilippines for at least three (,) continuous years prior to the filing of the petition and he maintains such residence until the adoption decree is entered.
he reDuirements of certification of the alien@s Dualification to adopt in his country and of residency may be waived if the alien:
(d) he first name+ surname or names by which the adoptee is to be 'nown and registered in the $ivil Registry. ! certification of non-forum shopping shall be included pursuant to Section J+ Rule 6 of the 1886 Rules of $ivil 2rocedure. Sec. ?. !ectification of Simulated irth. n case t he petition also see's rectification of a simulated of birth+ it shall allege that: (a) (a) 2etitioner is applying for rectification of a simulated birth
(i) is a former 3ilipino citi#en who see's to adopt a relative within the fourth degree of consanguinity or affinity or
(b) (b) he simulation of birth was made prior to the date of effectivity of Republic !ct *o. ?JJ7 and the application for rectification of the birth registration and the petition for adoption were filed within five years from said date
(ii) see's to adopt the legitimate child of his 3ilipino spouse or
(c) (c) he petitioner made the simulation of birth for the best interests of the adoptee and
(iii) is married to a 3ilipino citi#en and see's to adopt %ointly with his spouse a relative within the fourth degree of c onsanguinity or affinity of the 3ilipino spouse.
(d) (d) he adoptee has been consistently considered and treated by petitioner as his own child.
,) ,) f the adopter is the legal guardian of the adoptee+ the petition shall allege that guardianship had been terminated and the guardian had cleared his financial accountabilities.
Sec. 8. Adoption of a foundling& an abandoned& dependent or neglected child. n case the adoptee is a foundling+ an abandoned+ dependent or neglected child+ the petition shall allege:
=) =) f the adopter is married+ the spouse shall be a co-petitioner for %oint adoption e4cept if: (a) (a) he facts showing that the child is a foundling+ abandoned+ dependent or neglected (a) one spouse see's to adopt the legitimate child of the other+ or (b) if one spouse see's to adopt his own illegitimate child and the other spouse signified written consent thereto+ or (c) if the spouses are legally separated from each other.
(b) (b) he names of the parents+ if 'nown+ and their residence. f the child has no 'nown or living parents+ then the name and residence of the guardian+ if any (c) (c) he name of the duly licensed child-placement agency or individual under whose care the child is in custody and
(d) (d) hat the epartment+ child-placement or child-caring agency is authori#ed to give its consent. Sec. 17. /rder of Hearing. f the petition and attachments are sufficient in form and substance+ the court shall issue an order which shall contain the following: Sec. 1<. Change of name. n case the petition also prays for change of name+ the title or caption must contain:
(1) the registered name of the adoptee in t he birth certificate and the names by which the adoptee has been 'nown which shall be stated in the caption
(a) (a) he registered name of the child
(7) the purpose of the petition
(b) (b) !liases or other names by which the child has been 'nown and
(,) the complete name which the adoptee will use if the petition is granted
(c) (c) he full name by which the child is to be 'nown.
(=) the date and place of hearing which shall be set within si4 (I) months from the date of the issuance of the order and shall direct that a copy thereof be published before the date of hearing at least once a wee' for three successive wee's in a newspaper of general circulation in the province or city where the court is situated 2rovided+ that in case of application for change of name+ the date set for hearing shall not be within four (=) months after the last publication of the notice nor within thirty (,<) days prior to an election.
Sec. 11. Annees to the 0etition. he following documents shall be attached to the petition: !. 0irth+ baptismal or foundling certificate+ as the case may be+ and school records showing the name+ age and residence of the adoptee 0. !ffidavit of consent of the following:
1. he adoptee+ if ten (1<) years of a ge or over 7. he biological parents of the child+ if 'nown+ or the legal guardian+ or the child-placement agency+ child-caring agency+ or the proper government instrumentality which has legal custody of the child ,. he legitimate and adopted children of the adopter and of the adoptee+ if any+ who are t en (1<) years of age or over =. he illegitimate children of the adopter living with him who are ten (1<) years of age or over and J. he spouse+ if any+ of the adopter or adoptee.
$. $hild study report on the adoptee and his biological parents . f the petitioner is an alien+ certification by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in his country and that his government allows the adoptee to enter his country as his own adopted child unless e4empted under Section =(7) E. "ome study report on the adopters. f the adopter is an alien or residing abroad but Dualified to adopt+ the home study report by a foreign adoption agency duly accredited by the nter-$ountry !doption 0oard and 3. ecree of annulment+ nullity or legal separation of the adopter as well as that of the biological parents of the adoptee+ if any.
he newspaper shall be selected by raffle under the supervision of the E4ecutive udge. (J) a directive to the social wor'er of the court+ t he social service office of the local government unit or any child-placing or child-caring agency+ or the epartment to prepare and submit child and home study reports before the hearing if such reports had not been attached to the petition due to unavailability at the time of the filing of the latter and (I) a directive to the social wor'er of the court t o conduct counseling sessions with the biological parents on the matter of adoption of the adoptee and submit her report before the date of hearing. !t the discretion of the court+ copies of the order of hearing shall also be furnished the ffice of the Solicitor General through the provincial or city prosecutor+ the epartment and the biological parents of the adoptee+ if 'nown. f a change in the name of the adoptee is prayed for in t he petition+ notice to the Solicitor General shall be mandatory. Sec. 1,. Child and Home Stud* !eports. n preparing the child study report on the adoptee+ the concerned social wor'er shall verify with the $ivil Registry the real identity and registered name of the adoptee. f t he birth of the adoptee was not registered with the $ivil Registry+ it shall be the responsibility of the social wor'er to register the adoptee and secure a certificate of foundling or late registration+ as the case may be. he social wor'er shall establish that the child is legally available for adoption and the documents in support thereof are valid and authentic+ that the adopter has sincere intentions and that the adoption shall inure to the best interests of the child. n case the adopter is an alien+ the home study report must show the legal c apacity to adopt and that his government allows the adoptee to enter his country as his adopted child in the absence of the certification reDuired under Section 6(b) of Republic !ct *o. ?JJ7.
f after the conduct of the case studies+ the social wor'er finds that there are grounds to deny the petition+ he shall ma'e the proper recommendation to the court+ furnishing a copy thereof to the petitioner.
he decree shall: !. State the name by which the child is to be 'nown and registered
Sec. 1=. Hearing. >pon satisfactory proof that the order of hearing has been published and %urisdictional reDuirements have been complied with+ the court shall proceed to hear the petition. he petitioner and the adoptee must personally appear and the former must testify before the presiding %udge of the court on the date set for hearing. he court shall verify from the social wor'er and determine whether the biological parent has been properly counseled against ma'ing hasty decisions caused by strain or an4iety to give up the child ensure that all measures to strengthen the family have been e4hausted and ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest.
0. rder: 1) the $ler' of $ourt to issue to the adopter a certificate of finality upon e4piration of the 1Jday reglementary period within which to appeal 7) the adopter to submit a certified true copy of the decree of adoption and the ce rtificate of finality to the $ivil Registrar where the child was originally registered within thirty (,<) days from receipt of the certificate of finality. n case of change of name+ the decree shall be submitted to the $ivil Registrar where the court issuing the same is situated. ,) ,) the $ivil Registrar of the place where the adoptee was registered:
Sec. 1J. Supervised ,rial Custod*. 0efore issuance of the decree of adoption+ the court shall give the adopter trial custody of the adoptee for a period of at least si4 (I) months within which the parties are e4pected to ad%ust psychologically and emotionally to each other and establish a bonding relationship. he trial custody shall be monitored by the social wor'er of the court+ the epartment+ or the social service of the local government unit+ or the childplacement or child-caring agency which submitted and prepared the case studies. uring said period+ temporary parental authority shall be vested in the adopter. he court may+ motu proprio or upon motion of any party+ reduce the period or e4empt the parties if it finds that the sa me shall be for the best interests of the adoptee+ stating the reasons therefor. !n alien adopter however must complete the I-month trial custody e4cept the following: a) a former 3ilipino citi#en who see's to adopt a relative within the fourth (=th) degree of consanguinity or affinity or b) one who see's to adopt the legitimate child of his 3ilipino spouse or c) one who is married to a 3ilipino citi#en and see's to adopt %ointly with his or her spouse the latter@s relative within the fourth (=th) degree of consanguinity or affinity. f the child is below seven (6) years of age and is placed with the prospective adopter through a pre-adoption placement authority issued by the epartment+ the court shall order that the prospective adopter shall en%oy all the benefits to which the biological parent is entitled from the date the adoptee is placed with him.
a. to annotate on the adoptee@s original certificate of birth the decree of adoption within thirty (,<) days from receipt of the certificate of finality b. to issue a certificate of birth which shall not bear any notation that it is a new or amended certificate and which shall show+ among others+ the following: registry number+ date of registration+ name of child+ se4+ date of birth+ place of birth+ name and citi#enship of adoptive mother and father+ and the date and place of their marriage+ when applicable c. to seal the original certificate of birth in the civil registry records which can be opened only upon order of the court which issued the decree of adoption and d. to submit to the c ourt issuing the decree of adoption proof of compliance with all the foregoing within thirty days from receipt of the decree. f the adoptee is a foundling+ the court shall order the $ivil Registrar where the foundling was registered+ to annotate the decree of adoption on the foundling certificate and a new birth certificate shall be ordered prepared by the $ivil Registrar in accordance with t he decree.
Sec. 16. oo' of Adoptions. he $ler' of $ourt shall 'eep a boo' of adoptions showing the date of issuance of the decree in each case+ compliance by the $ivil Registrar with Section 1I(0)(,) and all incidents arising after the issuance of the decree.
he social wor'er shall submit to the court a report on the result of the trial custody within two wee's after its termination.
Sec. 1?. Confidential Nature of 0roceedings and !ecords. !ll hearings in adoption cases+ after compliance with the %urisdictional reDuirements shall be confidential and shall not be open to the public. !ll records+ boo's and papers relating to the adoption cases in the files of the court+ the epartment+ or any other agency or institution participating in the adoption proceedings shall be 'ept strictly confidential.
Sec. 1I. 2ecree of Adoption. f the supervised trial custody is satisfactory to the parties and the court is convinced from the trial custody report and the evidence adduced that the adoption shall redound to the best interests of the adoptee+ a decree of adoption shall be issued which shall ta'e effect as of the date the original petition was filed even if the petitioners die before its issuance.
f the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee+ the court may+ upon proper motion+ order the necessary information to be released+ restricting the purposes for which it may be used.
Sec. 18. !escission of Adoption of the Adoptee. he petition shall be verified and filed by the adoptee who is over eighteen (1?) years of age+ or with the assistance of the epartment+ if he is a minor+ or if he is over eighteen (1?) years of age but is incapacitated+ by his guardian or counsel.
he court shall further order the $ivil Registrar where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate his original birth or foundling certificate.
1) repeated physical and verbal maltreatment by the adopter despite having undergone counseling
Sec. 7=. Service of 9udgment. ! certified true copy of the %udgment together with a certificate of finality issued by the 0ranch $ler' of the $ourt which rendered the decision in accordance with the preceding Section shall be served by the petitioner upon the $ivil Registrar concerned within thirty (,<) days from receipt of the certificate of finality. he $ivil Registrar shall forthwith enter the rescission decree in the register and submit proof of compliance to the court issuing the decree and the $ler' of $ourt within thirty (,<) days from receipt of the decree.
7) attempt on the life of the a doptee
he $ler' of $ourt shall enter the compliance in accordance with Section 16 hereof.
he adoption may be rescinded based on any of the following grounds committed by the adopter:
,) se4ual assault or violence or
SE$. 7J. !epeal. - his supersedes Rule 88 on !doption and Rule 1<< of the Rules of $ourt.
=) abandonment or failure to comply with parental obligations.
Salient +eature" f t4e Rule !doption+ being in the best interests of the child+ shall not be sub%ect to rescission by the adopter. "owever+ the adopter may disinherit the adoptee for causes provided in !rticle 818 of the $ivil $ode.
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Sec. 7<. 8enue. he petition shall be filed with the 3amily $ourt of the city or province where the adoptee resides.
Sec. 71. ,ime %ithin %hich to file petition. he adoptee+ if incapacitated+ must file the petition for rescission or revocation of adoption within five (J) years after he reaches the age of ma%ority+ or if he was incompetent at the time of the adoption+ within five (J) years after recovery from such incompetency.
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Sec. 77. /rder to Ans%er. he court shall issue an order reDuiring the adverse party to answer the petition within fifteen (1J) days from receipt of a copy thereof. he order and copy of the petition shall be served on the adverse party in such manner as the court may direct.
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Sec. 7,. 9udgment. f the court finds that the allegations of the petition are true+ it shall render %udgment ordering the rescission of adoption+ with or without costs+ as %ustice reDuires. •
he court shall order that the parental authority of the biological parent of the adoptee+ if 'nown+ or the legal custody of the epartment shall be restored if t he adoptee is still a minor or incapacitated and declare that the reciprocal rights and obligations of the adopter and the adoptee to each other shall be e4tinguished. he court shall further declare that successional rights shall revert to its status prior to adoption+ as of the date of % udgment of %udicial rescission. &ested rights acDuired prior to %udicial rescission shall be respected. t shall also order the adoptee to use the name stated in his original birth or foundling certificate.
he issue of simulated birth of the adoptee and the declaration that the child is abandoned+ dependent and neglected must first be ta'en up in separate proceedings+ and a favorable decision is reDuired before the adoption process can be pursued. he rule consolidates actions for declaration of abandonment+ change of name+ rectification of simulated birth. H6 specifies the form and contents of the petition. he reDuirements in the , proceedings have been laid down in the Sections ?-1< of the Rule. o Ahen the petition includes a prayer for change of name+ notice to the SG is mandatory (§17). n all other cases+ the notice to the SG is within the discretion of the court. §1, specifies the role of the social wor'er prepare the child and home study reports on the adoptee and the adopter. §1J provides for supervised trial custody of the child and grants authority to the courts to reduce the period or e4empt the parties as called for the best interests of the adoptee. §1I specifies the contents of the decree and the duties of the $$ and the office of the civil registrar §16 provides that all matters relative to the adoption and all the incidents arising after the issuance of the decree shall be recorded in a boo' of adoption 'ept by the $$ of the 3amily $ourt. §1? provides for confidentiality of records.
Reuire9ent f 'int A!#tin b @u"ban! an! ife >nder the new law+ %oint adoption by husband and wife is mandatory and this is in • consonance with the concept of %oint parental authority over the child. his rule also insures harmony between the spouses. Reuire9ent f Cn"ent t t4e A!#tin §8+ R! ?JJ7 enumerates the persons whose consent is necessary to the !doption • •
Can$ /. CA %10. *o consent is necessary when a child has been declared abandoned by an un'nown parent+ or when the parent is insane or hopelessly intemperate.
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Can$ /. CA %10. !llegations of abandonment in the petition for adoption without the written consent of the alleged parent sufficiently vested the court with %urisdiction since abandonment of the child by his natural parents is one of the circumstances which our statutes and %urisprudence dispense with the reDuirement of written consent to the adoption of their minor children. o Aban!n & forsa'e or renounce utterly. n the conte4t of adoption+ it imports any conduct of the parent which evinces a settled purpose to forgo all parental duties and relinDuish all parental claims to the child. 2hysical estrangement alone does not necessarily amount to abandonment. o he discretion to approve adoption proceedings is not to be anchored solely on best interest of the child but li'ewise+ with due regard to the natural rights of the parents over the child.
'uri"!ictinal Reuire9ent- residence and name of the adoptee %Cru: /. Re#ublic %55 t is generally held that a petition will confer %urisdiction if it substantially complies with • the adoption statute+ alleging the necessary facts to g ive the court %urisdiction Re#ublic /. CA6 %15. "owever+ a mere clerical error in the name of the adoptee is not • fatal to the decree of adoption. Parental Aut4rit !urin$ Trial Peri! 2arental authority is provisionally vested in the adopting parents during the period of trial • custody i.e. before the grant of the adoption decree. Since they have actual custody. Ta9ar$ /. CA %12. Ahere the trial custody had not yet begun or had already been • completed at the time of a Duasi-delict committed by the child to be adopted+ the adopting parents cannot assume any liability therefor. !ccordingly+ his natural parents should be %oined as indispensable parties to the suit for damages.
INTERCO(NTRY ADOPTION
foreign national or 3ilipino citi#en permanently residing abroad with the 3amily $ourt having %urisdiction over the place where the child resides or may be found. t may be filed directly with the nter-$ountry !doption 0oard.
Sec. 78. Who ma* be adopted. nly a child legally available for domestic adoption may be the sub%ect of inter-country adoption. Sec. ,<. Contents of 0etition. he petitioner must allege: a) a) his age and the age of the child to be adopted+ showing that he is at least twenty-seven (76) years of age and at least si4teen (1I) years older than the child to be adopted at the time of application+ unless the petitioner is the parent by nature of the child to be adopted or the spouse of such parent+ in which case the age difference does not apply b) b) if married+ the name of the spouse who must be %oined as co-petitioner e4cept when the adoptee is a legitimate child of his spouse c) c) that he has the capacity to act and assume all rights and responsibilities of parental authority under his national laws+ and has undergone the appropriate counseling from an accredited counselor in his country d) d) that he has not been convicted of a crime involving moral turpitude e) e) that he is eligible to adopt under his national law f) f) that he can provide the proper care and support and instill the necessary moral values and e4ample to all his children+ including the child to be adopted
=. InterCuntr A!#tin
g) g) that he agrees to uphold the basic rights of the child+ as embodied under 2hilippine laws and the >. *. $onvention on the Rights of the $hild+ and to abide by the rules and regulations issued to implement the provisions of Republic !ct *o. ?<=,
Sec. 7I. Applicabilit*. he following sections apply to inter-country adoption of 3ilipino children by foreign nationals and 3ilipino citi#ens permanently residing ab road.
h) h) that he comes from a country with which the 2hilippines has diplomatic relations and whose government maintains a similarly authori#ed and accredited agency and that adoption of a 3ilipino child is allowed under his national laws and
SE$. 76. /bjectives. he State shall:
i) i) that he possesses all the Dualifications and none of the disDualifications provided in this Rule+ in Republic !ct *o. ?<=, and in all other applicable 2hilippine laws.
%R(LES (NDER AM 82582 %A(G(ST 2262882
a) a) consider inter-country adoption as an alternative means of child care+ if the child cannot be placed in a foster or an adoptive family or cannot+ in any suitable manner+ be cared for in the 2hilippines
Sec. ,1. Annees. - he petition for adoption shall contain the following anne4es written and officially translated in English:
b) ensure that the child sub%ect of inter-country adoption en%oys the same protection accorded to children in domestic adoption and
a) a) 0irth certificate of petitioner
c) ta'e all measures to ensure that the placement arising therefrom does not result in improper financial gain for those involved.
b) b) 5arriage contract+ if married+ and+ if applicable+ the divorce decree+ or %udgment dissolving the marriage c) c) Sworn statement of consent of petitioner@s biological or adopted children above ten (1<) years of age
Sec. 7?. Where to 5ile 0etition. ! verified petition to adopt a 3ilipino child may be filed by a
d) d) 2hysical+ medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist e) e) ncome ta4 returns or any authentic document showing the current financial capability of the petitioner
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f) f) 2olice clearance of petitioner issued within si4 (I) months before the filing of the petitioner g) g) $haracter reference from the local churchLminister+ the petitioner@s employer and a member of the immediate community who have 'nown the petitioner for at least five (J) years h) h) 3ull body postcard-si#e pictures of the petitioner and his immediate family ta'en at least si4 (I) months before the filing of the petition.
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he law created the nter-$ountry !doption 0oard ($!0) to act as the central authority in matters relating to inter-country adoption. !ll matters relating to inter-country adoption must pass through the $!0. he only provision in the nter-$ountry !doption !ct which allows the courts to participate is in §1< wherein courts may receive the application+ assess the Dualification of the prospective adopter and then refer its findings+ if favorable to the $!0.
Salient +eature" f t4e Rule t clearly provides that it applies only to inter-country adoption of 3ilipino children by • foreign nationals and 3ilipino citi#ens permanently residing abroad. t clarifies a legally free adopted child to be one who was voluntarily or involuntarily • committed to the SA. he petition must specifically allege the Dualifications of the adopter. !ll documents must • be written and officially translated in English. So as not to e4pose the petitioner to unnecessary e4pense and delay+ the proposed rule • provides that the court+ after finding the petition is sufficient in form and substance and is a proper case for inter-country adoption shall immediately transmit the petition to the $!0 for appropriate action. Effect" f A!#tin >nder !rt 1?8+ 3$: • 3or civil purposes+ the adopted shall be deemed the legitimate child of the adopters and both shall acDuire the reciprocal rights and obligations arising from the relationship of parent and childL he parental authority of the parents by nature shall terminate and be vested in the adopters he adopted shall remain an intestate heir of his parents and other blood relatives. the relationship established is limited solely to the adopter and the adopted and does not • e4tend to the relatives of the adopting parents or the adopted child. Rights of a legitimate child given to an adopted person do not include the acDuisition of • the citi#enship of the adopter !cDuisition of citi#enship parta'es of the character of naturali#ation which is not regulated by the civil code he framers of the civil code does not intend to regulate political Duestions.
Re#ublic /. n$ %12. he change of surname of the adopted child is more of an incident rather than the ob%ect of an adoption. Marcai!a /. A$lubat %57. !n adoption created under the law of a foreign country is entitled to registration in the corresponding civil register of the 2hilippines. he effects of such adoption shall be governed by the law of the 2hilippines.
R(LES ON C(STODY O+ C@ILDREN %+OR COMMITMENT O+ C@ILDREN6 SEE APPENDIK F= *E: the rule on !doption did not repeal sections I and 6 of Rule 88 Sec. 5. Prcee!in$" a" t c4il! w4"e #arent" are "e#arate!* A##eal. Ahen husband and wife are divorced or living separately and apart from each other+ and the Duestion as to the care+ custody+ and control of a child or children of their marriage is brought before a $ourt of 3irst nstance by petition or as an incident to any other proceeding+ the court+ upon hearing the testimony as may be pertinent+ shall award the care+ custody+ and control of each such child as will be for its best interest+ permitting the child to choose which parent it prefers to live with if it be over ten years of age+ unless the parent so chosen be unfit to ta'e charge of the child by reason of moral depravity+ habitual drun'enness+ incapacity+ or poverty. f+ upon such hearing+ it appears that both parents are improper persons to have the care+ custody+ and control of the child+ the court may either designate the paternal or maternal grandparent of the child+ or his oldest brother or sister+ or some reputable and discreet person to ta'e charge of such child+ or commit it to any suitable asylum+ children;s home+ or benevolent society. he court may in conformity with the provisions of the $ivil $ode order either or both parents to support or help support said child+ irrespective of who may be its custodian+ and may ma'e any order that is %ust and reasonable permitting the parent who is deprived of its care and custody to visit the c hild or have temporary custody thereof. Either parent may appeal from an order made in accordance with the provisions of this section. *o child under seven years of age shall be separated from its mother+ unless the court finds there are compelling reasons therefor.
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>nder the 3amily $ourts !ct of 1886+ cases involving the custody of minors is within the orignal and e4clusive %urisdiction of 3amily $ourts.
Sub"tanti/e =a"i" !rticle I,+ 3$ • he decree of legal separation shall have the following effects: (1) the spouses shall be entitled to live separately from each other but the marriage bond shall not be severed. T44 (,) the custody of minor children shall be awarded to the innocent spouse+ sub%ect to the provisions of !rt 71, of the $ivil $ode !rt 71,+ $ivil $ode • n case of separation of parents+ parental authority shall be e4ercised by the parent designated by the court. he $ourt shall ta'e into account all relevant considerations+ especially the choice of the child over seven years of age+ unless the parent chosen is unfit.
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*o child under seven years of age shall be separated from the mother+ unless the court finds compelling reasons to order otherwise. >nder !rt. ,I,+ $$ the best interest of the child can override procedural rules and even the rights of parents to the custody of their children. he sole and foremost consideration is the physical+ education+ social and moral welfare of the child concerned+ ta'ing into account the respective resources and social and moral situations of the contending parents. he right of parents to the company and custody of their children is but ancillary to the proper discharge of parental duties to provide their children with adeDuate support+ education+ moral+ intellectual and civic training and development. 2arental authority and responsibility are inalienable and may not be transferred or renounced e4cept in cases authori#ed by law.
he verified petition shall allege t he following: (a) he personal circumstances of the petitioner and of the respondent (b) he name+ age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent (c) he material operative facts constituting deprivation of custody and (d) Such other matters which are relevant to the custody of the minor. he verified petition shall be accompanied by a certificate against forum shopping+ which the petitioner must sign personally. •
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R(LE ON C(STODY O+ MINORS AND RIT O+ @A=EAS CORP(S IN RELATION TO C(STODY O+ MINORS Ahere there are no proceedings for the annulment of marriage or declaration of nullity or legal separation+ the applicable rule would be the following: A.M. N. 8,8?8?SC Rule On Cu"t! Of Minr" An! rit Of @abea" Cr#u" In Relatin T Cu"t! Of Minr"
SEC. 3. Su99n"* #er"nal "er/ice n re"#n!ent. f the court is satisfied that the petition is sufficient in form and substance+ it shall direct the cler' f curt to issue summons+ which shall be served together with a copy of the petition personally on the respondent. •
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SECTION >. A##licabilit. his rule shall apply to petitions for custody of minors and writs of habeas corpus in relation thereto. he Rules of $ourt shall apply suppletorily. SEC. 2. Petitin fr cu"t! f 9inr"* w4 9a file. ! verified petition for the rightful custody of a minor may be filed by any person claiming such right. he party against whom it may be filed shall be designated as the respondent. •
he phrase Bany person claiming rightful custodyC is broad enough to cover the following: 1. the unlawful deprivation of the custody of a minor+ or 7. which parent shall have the care and custody of a minor+ when such parent is in the midst of nullity+ annulment or legal separation proceedings.
SEC. ,. 4ere t file #etitin. he petition for custody of minors shall be filed with the 3amily $ourt of the province or city where the petitioner resides or where the minor may be found. SEC. ?. Cntent" f #etitin.
he c9#lete fact" cn"titutin$ !e#ri/atin f cu"t! are t be alle$e! by the pleader. Pur#"e- so that the litigation does not become protracted with the unnecessary filing+ for e4ample+ of motion of dismiss+ bills of particulars and other such pleadings+ which could be elevated to the appellate courts by certiorari.
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Service of the summons with the copy of the petition is to be made n t4e re"#n!ent 4i9"elf. Pur#"e- to ensure that respondent will file the answer promptly. n any event+ Rule 1=+ 1886 Rules of $ivil 2rocedure+ as amended+ applies suppletority.
SEC. 5. Mtin t Di"9i"". ! motion to dismiss the petition is not allowed e4cept on the ground of lac' of %urisdiction over the sub%ect matter or over the parties. !ny other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer. SEC. 7. )erifie! An"wer. he respondent shall file an answer to the petition+ personally verified by him+ within five days after service of summons and a copy of the petition.
SEC. 0. Ca"e "tu!* !ut f "cial wrer. >pon the filing of the verified answer or the e4piration of the period to file it+ the court may order a social wor'er to ma'e a case study of the minor and the parties and to submit a report and recommendation to the court at least three days before the s cheduled pre-trial. •
he case study report may include the family relationships+ educations+ environmental+ emotional+ psychological and spiritual profiles of the minor+ the person claiming rightful custody of the minor and the person opposing the same.
SEC. 1. Ntice f 9an!atr #retrial.
Aithin fifteen days after the filing of the answer or the e4piration of the period to file answer+ the court shall issue an order: (1) fi4ing a date for the pre-trial conference (7) directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure receipt thereof by the adverse party at least three days before the date of pre-trial and (,) reDuiring the respondent to present the minor before the court. he notice of its order shall be served separately on both the parties and their respective counsels. he pre-trial is mandatory. SEC. >8. Cntent" f #retrial brief he pre-trial brief shall contain the following: (a) ! statement of the willingness of the parties to enter into agreements that may be allowed by law+ indicating its terms (b) ! concise statement of their respective claims together with the applicable laws and authorities (c) !dmitted facts and proposed stipulations of facts (d) he disputed factual and legal issues (e) !ll the evidence to be presented+ briefly stating or describing its nature and purpose (f) he number and names of the witnesses and their respective affidavits which shall serve as the affiant;s testimony on direct e4amination and (g) Such other matters as the court may reDuire to be included in the pre-trial brief. 3ailure to file the pre-trial brief or to comply with its reDuired contents shall have the same effect as failure to appear at the pre-trial. SEC. >>. Effect f failure t a##ear at t4e #retrial. (a) f the petitioner fails to appear personally at the pre-trial+ the case shall be dismissed+ unless his counsel or a duly authori#ed representative appears in court and proves a valid e4cuse for the non-appearance of the petitioner. (b) f the respondent has filed his answer but fails to appear at the pre-trial+ the petitioner shall be allowed to present his evidence e4 parte. he court shall then render %udgment on the basis of the pleadings and the evidence thus presented. • •
If t4e #etitiner fail" t a##ear at t4e #retrial- the case shall be dismissed If t4e re"#n!ent fail" t a##ear at t4e #retrial- the petitioner will be allowed to present his evidence e4 parte. hereafter+ the court may proceed to render %udgment based on the pleadings filed and the evidence submitted.
SEC. >2. 4at 9a be !ne at #retrial. !t the pre-trial+ the parties may agree on the custody of the minor. f the parties fail to agree+ the court may refer the matter to a mediator who shall have five days to effect an agreement between the parties. f the issue is not settled through mediation+ the court shall proceed with the pre-trial conference+ on which occasion it shall consider such other matters as may aid in the prompt disposition of the petition. •
here are two stages in pre-trial:
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n the fir"t "ta$e6 t4e #artie" 9a a$ree t t4e cu"t! f t4e 9inr. he parties may reach a settlement even before attending the pre-trial. r+ they may reach an agreement in court itself. f during the pr-trial it appears that no such settlement is forthcoming+ the trial court will direct the parties to secure the services of t he mediator.
7.
f this li'ewise does not produce an amicable settlement the court will proceed with the #retrial cnference w4ere it 9a cn"i!er "uc4 t4er 9atter" a" 9a ai! in t4e #r9#t !i"#"itin f t4e #etitin.
SEC. >,. Pr/i"inal r!er awar!in$ cu"t!. !fter an answer has been filed or after e4piration of the period to file it+ the court may issue a provisional order awarding custody of the minor. !s far as practicable+ the following order of preference shall be observed in the award of custody: (a) 0oth parents %ointly (b) Either parent+ ta'ing into account all relevant considerations+ especially the choice of the minor over seven years of age and of sufficient discernment+ unless the parent chosen is unfit (c) he grandparent+ or if there are several grandparents+ the grandparent chosen by the minor over seven years of age and of sufficient discernment+ unless the grandparent chosen is unfit or disDualified (d) he eldest brother or sister over twenty-one years of age+ unless he or she is unfit or disDualified (e) he actual custodian of the minor over twenty-one years of age+ unless the former is unfit or disDualified or (f) !ny other person or institution the court may deem suitable to provide proper care and guidance for the minor. SEC. >?. +actr" t cn"i!er in !eter9inin$ cu"t!. n awarding custody+ the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. he best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival+ protection+ and feelings of security of the minor encouraging to his physical+ psychological and emotional development. t also means the least detrimental available alternative for safeguarding the growth and development of the minor. he court shall also consider the following: (a) !ny e4tra%udicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non-custodial parent on a regular basis+ e4cept when there is an e4isting threat or danger of physical+ mental+ se4ual or emotional violence which endangers the safety and best interests of the minor (b) he desire and ability of one parent to foster an open and loving relationship between the minor and the other parent (c) he health+ safety and welfare of the minor %!) !ny history of child or spousal abuse by the person see'ing custody or who has had any filial relationship with the minor+ including anyone courting the parent (e) he nature and freDuency of contact with both parents (f) "abitual use of alcohol+ dangerous drugs or regulated substances (g) 5arital misconduct (h) he most suitable physical+ emotional+ spiritual+ psychological and educational environment for the holistic development and growth of the minor
and (i) he preference of the minor over seven years of age and of sufficient discernment+ unless the parent chosen is unfit.
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n all cases+ the be"tintere"tf&t4e&9inr is the yardstic' to be used by the court in granting custody. F=e"t intere"t" is defined to be Bthe totality of the circumstances and conditions as are most congenial to the survival+ protection+ and feelings of security of the minor and most encouraging to his physical+ psychological and emotional development.C t also means Bthe least detrimental available alternative for safeguarding the growth and development of the minor.C
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SEC. >3. Te9#rar /i"itatin ri$4t". he court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents+ unless the court finds said parent or parents unfit or disDualified. he temporary custodian shall give the court and non-custodial parent or parents at least five days; notice of any plan to change the residence of the minor or ta'e him out of his residence for more than three days provided it does not pre%udice the visitation rights of the non-custodial parent or parents. SEC. >5. @l! De#arture Or!er.
he minor child sub%ect of the petition shall not be brought out of the country without prior order from the court while the petition is pending. he court+ motu proprio or upon application under oath+ may issue e4 parte a hold departure order+ addressed to the 0ureau of mmigration and eportation+ directing it not to allow the departure of the minor from the 2hilippines without the permission of the court. he 3amily $ourt issuing the hold departure order shall furnish the epartment of 3oreign !ffairs and the 0ureau of mmigration and eportation of the epartment of ustice a copy of the hold departure order within twenty-four hours from its issuance and through the fastest available means of transmittal. he hold departure order shall c ontain the following information: (a) he complete name (including the middle name)+ the date and place of birth+ the nationality and the place of last residence of the person against whom a hold departure order has been issued or whose departure from the country has been en%oined (b) he complete title and doc'et number of the case in which the hold departure order was issued (c) he specific nature of the case (d) he date of the hold departure order and (e) ! recent photograph+ if available+ of the party against whom a hold departure order has been issued or whose departure from the country has been en%oined. he court may recall the hold departure order motu proprio+ or upon verified motion of any of the parties after summary hearing+ sub%ect to such terms and conditions as may be necessary for the best interests of the minor. SEC. >7. Prtectin Or!er. he court may issue a Protection Order reDuiring any person: (a) o stay away from the home+ school+ business+ or place of employment of the minor+ other parent or any other party+ or from any other specific place designated by the court (b)o cease and desist from harassing+ intimidating+ or threatening such minor or the other parent or any person to whom custody of the minor is awarded %c T refrain fr9 act" f c99i""in r 9i""in t4at create an unrea"nable ri" t t4e 4ealt46 "afet6 r welfare f t4e 9inr* (d) o permit a parent+ or a party entitled to visitation by a court order or a separation agreement+ to visit the minor at stated periods (e) o permit a designated party to enter the residence during a specified period of time in order to ta'e personal belongings not contested in a proceeding pending with the 3amily $ourt and (f) o comply with such other orders as are necessary for the protection of the minor. SEC. >0. 'u!$9ent.
!fter trial+ the court shall render %udgment awarding the custody of the minor to the proper party considering the best interests of the minor. f it appears that both parties are unfit to have the care and custody of the minor+ the court may designate either the paternal or maternal grandparent of the minor+ or his oldest brother or sister+ or any reputable person to ta'e charge of such minor+ or commit him to any suitable home for children. n its %udgment+ the court may order either or both parents to give an amount necessary for the support+ maintenance and education of the minor+ irrespective of who may be its custodian. n determining the amount of support+ the court may consider the following factors: (1) the financial resources of the custodial and non-custodial parent and those of the minor (7) the physical and emotional health+ special needs+ and aptitude of the minor (,) the standard of living the minor has been accustomed to and (=) the non-monetary contributions that the parents would ma'e toward the care and well-being of the minor. he court may also issue any order that is %ust and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody. SEC. >1. A##eal. & *o appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of %udgment. !n aggrieved party may appeal from the decision by filing a *otice of !ppeal within fifteen days from notice of the denial of the motion for reconsideration or new trial and serving a copy thereof on the adverse parties. SEC. 28. Petitin fr writ f 4abea" cr#u". ! verified petition for a writ of habeas corpus involving custody of minors shall be filed with the 3amily $ourt. he writ shall be enforceable within its %udicial region to which the 3amily $ourt belongs. "owever+ the petition may be filed with the regular court in the absence of the presiding %udge of the 3amily $ourt+ provided+ however+ that the regular court shall refer the case to the 3amily $ourt as soon as its presiding %udge returns to duty. he petition may also be filed with the appropriate regular courts in places where there are no 3amily $ourts. he writ issued by the 3amily $ourt or the regular court shall be enforceable in the %udicial region where they belong. he petition may li'ewise be filed with the Supreme $ourt+ $ourt of !ppeals+ or with any of its members and+ if so granted+ the writ shall be enforceable anywhere in the 2hilippines. he writ may be made returnable to a 3amily $ourt or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. >pon return of the writ+ the court shall decide the issue on custody of minors. he appellate court+ or the member thereof+ issuing the writ "4all be furni"4e! a c# f t4e !eci"in.
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Ahere it appears that a minor is being 'ept from a parent by the other parent+ or in similar situations involving other parties+ and time is of the essence+ the party see'ing rightful custody of the minor may file a /erifie! #etitin fr 4abea"
cr#u" with the 3amily court. !ny writ issued by the family court+ as a result of such filing+ is enforceable only within its territorial %urisdiction. SEC. 2>. Cnfi!entialit f #rcee!in$". he hearings on custody of minors may+ at the discretion of the court+ be closed to the public and the records of the case shall not be released to non-parties without its approval. SEC. 22. Effecti/it. his Rule shall ta'e effect on 5ay 1J+ 7<<, following its publication in a newspaper of general circulation not later than !pril ,<+ 7<<,
,. '(RISDICTION O+ CO(RT O+ APPEALS TO ISS(E RIT O+ @A=EAS CORP(S T4e +a9il Curt" Law w4ic4 /e"te! +a9il Curt" with original and e4clusive %urisdiction in the custody of children and to issue writs of habeas corpus in relation thereto 4a/e nt !i/e"te! t4e Curt f A##eal" 9uc4 le"" t4e Su#re9e Curt f it" Buri"!ictin t i""ue writ" f 4abea" cr#u" in/l/in$ t4e ri$4tful cu"t! of children. Nte- the writ is issued by a 3amily $ourt only in relation to custody of minors. !n ordinary petition for habeas corpus should be filed in the regular court. he issue of child custody may be tac'led by the 3amily $ourt without need of a separate petition for custody being filed+ following the ruling in Suare# vs. $!: Bt is worthy to note that the ground upon which respondent 5anese filed her motion to dismiss is erroneous since the Duestion as to who shall have the custody of the child c an be sufficiently resolved in the petition for writ of habeas corpus pursuant to Rule 1<7+ Revised Rules of $ourt without the necessity of filing a separate action under Rule 88 of the said rules for that purposeYC ?. RATIONALE O+ T@E R(LE ON C(STODY OI+ MINORS AND RIT O+ @A=EAS CORP(S IN RELATION TO C(STODY O+ MINORS •
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Sectin >26 Article II f t4e Cn"titutin- Fhe State recogni#es the sanctity of family life and shall protect and strengthen the family as a basic social institution. !t present however+ many marriages are being dissolved legally with other married couples being separated legally and de facto. he victims+ are of course+ the children. he State therefore steps in at this point with an array of laws to Bdefend the right of children to special protection from all forms of neglect+ abuse+ cruelty+ e4ploitation and other conditions pre%udicial to their development.
3. PROCEEDINGS AS TO )AGRANT OR A=(SED C@ILD %Rule 116 Sec. 7 Sec. 7. Prcee!in$" a" t /a$rant r abu"e! c4il!. Ahen the parents of any minor child are dead+ or by reason of long absence or legal or physical disability have abandoned it+ or cannot support it through vagrancy+ negligence+ or misconduct+ or neglect or refuse to support it+ or treat it with e4cessive harshness or give it corrupting orders+ counsels+ or e4amples+ or cause or allow it to engage in begging+ or to commit offenses against the law+ the proper $ourt of 3irst nstance+ upon petition filed by some reputable resident
of the province setting forth the facts+ may issue an order reDuiring such parents to show cause+ or+ if the parents are dead or cannot be found+ reDuiring the fiscal of the province to show cause+ at a time and place fi4ed in the order+ why the child should not be ta'en from its parents+ if living and if upon the hearing it appears that the allegations of the petition are true+ and that it is for the best interest of the child+ the court may ma'e an order ta'ing it from its parents+ if living and committing it to any suitable orphan asylum+ children;s home+ or benevolent society or person to be ultimately placed+ by adoption or otherwise+ in a home found for it by such asylum+ children;s home+ society or person. NOTES•
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his provision contemplate a situation when parents of any minor child are: a . dead+ or b. by reason of long absence or physical disability have abandoned it+ or c. cannot support it through vagrancy+ negligence or misconduct+ or neglect or refuse to supprt it+ or d. treat it with e4cessive harshness+ or e. give it corrupting orders+ counsels or e4amples+ or f. cause to allow it to engage in begging+ or to commit offenses against the law. n such cases+ t4e #r#er RTC6 upon petition filed by some reputable resident of the province setting forth the facts+ 9a i""ue an r!er a. reDuiring such parents to show cause+ or b. if such parents are dead or cannot be found+ reDuiring the fiscal of the province to show cause f upon hearing+ it appears the allegations in the petition are true+ the court may ma'e an order: a. ta'ing the child from its parents+ and b. committing it to any suitable orphan asylum+ children@s home or benevolent society or person to be ultimately placed+ by adoption or otherwise+ in a home found for it by such asylum+ children@s home+ society or person.
(1) ! dependent child is one who is without a parent+ guardian or custodian or one whose parents+ guardian or other custodian for good cause desires to be relieved of his care and custody and is dependent upon the public for support. (7) !n abandoned child is one who has no proper parental care or guardianship+ or whose parents or guardians have deserted him for a period of at least si4 continuous months. (,) ! neglected child is one whose basic needs have been deliberately unattended or inadeDuately attended. *eglect may occur in two ways: a) here is a physical neglect when the child is malnourished+ ill clad and without proper shelter. ! child is unattended when left by himself without provisions for his needs andLor without proper supervision. b) Emotional neglect e4ists: when children are maltreated+ raped or seduced when children are e4ploited+ overwor'ed or made to wor' under conditions not conducive to good health or are made to beg in the streets or public places+ or when children are in moral danger+ or e4posed to gambling+ prostitution and other vices. (=) $ommitment or surrender of a child is the legal act of entrusting a child to the care of the epartment of Social Aelfare or any duly licensed child placement agency or individual. $ommitment may be done in the following manner: a) nvoluntary commitment+ in case of a dependent child+ or through the termination of parental or guardianship rights by reason of abandonment+ substantial and continuous or repeated neglect andLor parental incompetence to discharge parental responsibilities+ and in the manner+ form and procedure hereinafter prescribed. b) &oluntary commitment+ through the relinDuishment of parental or guardianship rights in the manner and form hereinafter prescribed. Art. >?2. Petitin fr In/luntar C99it9ent f a C4il!- )enue. he epartment of Social Aelfare Secretary or his authori#ed representative or any duly licensed child placement agency having 'nowledge of a child who appears to be dependent+ abandoned or neglected+ may file a verified petition for involuntary commitment of said child to the care of any duly licensed child placement agency or individual. he petition shall be filed with the uvenile and omestic Relations $ourt+ if any+ or with the $ourt of 3irst nstance of the province or $ity $ourt in which the parents or guardian resides or the child is found.
PRESIDENTIAL DECREE NO. 58, T@E C@ILD AND YO(T@ EL+ARE CODE Art. 2>. De#en!ent6 Aban!ne! r Ne$lecte! C4il!. he dependent+ abandoned or neglected child shall be under the parental authority of a suitable or accredited person or institution that is caring for him as provided for under the four preceding articles+ after the child has been declared abandoned by either the court or the epartment of Social Aelfare. Art. 22. Tran"fer t t4e De#art9ent f Scial elfare. he dependent+ abandoned or neglected child may be transferred to the care of the epartment of Social Aelfare or a duly licensed child-caring institution or individual in accordance with !rticles 1=7 and 1J= of this $ode+ or upon the reDuest of the person or institution e4ercising parental authority over him. 3rom the time of such transfer+ the epartment of Social Aelfare or the duly licensed childcaring institution or individual shall be considered the guardian of the child for all intents and purposes. Art. 2,. Ca"e Stu!. - t shall be the duty of the epartment of Social Aelfare to ma'e a case study of every child who is the sub%ect of guardianship or custody proceedings and to submit its report and recommendations on the matter to the court for its guidance. Art. >?>. Definitin f Ter9". A" u"e! in t4i" C4a#ter-
R(LE >88 RECISSION AND RE)OCATION O+ ADOPTION •
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the court has no %urisdiction to annul+ after the period fi4ed by the rule+ a decree of adoption validity of the adoption can only be attac'ed in a direct proceeding frontally addressing the issue a finding that the reDuisite %urisdictional facts e4ists cannot be Duestioned in a collateral proceeding. he grounds for revocation provided in !rticle ,=? of the *ew $ivil $ode refer only to an adoption validly decreed+ not an adoption void from the beginning i.e.+ tainted with fraud.
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,he ne% adoption la% deleted from the la% the right of adopters to rescind a decree of adoption. No%& onl* the adoptee ma* rescind. (see §1:& A ;<-=-;<)
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he approval of adoption lies in the sound discretion of the court. he discretion should be e4ercised in accordance with the best interests of the child+ as long as the natural rights of the parents over the child are not disregarded.
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he petition to set aside the adoption must be filed with the family court of the cityLprovince where the adoptee resides. 2eriod: within J years after he reaches the age of ma%ority of within J years after the recovery from such incompetency. f the adopted is still a minor+ rescission will reinstate the parental authority of the natural parents. f they are incapacitated+ a guardian over the person and property of the minor will be appointed in the same proceeding. udicial rescission of the adoption shall e4tinguish all reciprocal rights and obligations between the adopters and the adopted. he adopted shall lose the right to use the surname of the adopters and shall resume his surname prior to the adoption. he court shall order the amendment of the records in the civil register.
R(LE >8> PROCEEDINGS +OR @OSPITALIATION O+ INSANE PERSONS Sec. >. enue/ etition for commitment. ! petition for the commitment of a person to a hospital or other place for the insane may be filed with the $ourt of 3irst nstance of the province where the person alleged to be insane is found. he petition shall be filed by the irector of "ealth in the all cases where+ in his opinion+ such commitment is for the public welfare+ or for the welfare of said person who+ in his %udgment+ is insane+ and such person or the one having charged of him is opposed to his being ta'en to a hospital or other place for the insane.
Sec. 2. !rder for hearing. f the petition filed is sufficient in form and substance+ the court+ by an order reciting the purpose of the petition+ shall fi4 a date for the hearing thereof+ and copy of such order shall be served on the person alleged to be insane+ and to the one having charge of him+ or on such of his relatives residing in the province or city as the %udge may deem proper. he court shall furthermore order the sheriff to produce the alleged insane person+ if possible+ on the date of the hearing. >. Ri$4t f in"ane #er"n t ntice an! 4earin$ - while it has been held that want of notice does not render the proceedings invalid and that the commitment is not sub%ect to collateral attac'+ it has also been held that want of notice renders the proceedings void or at least+ is good ground for vacating the order of %udgment. -
>. A##licatin f t4e rule - applicable only when the hospitali#ation of the insane person is for: a. public welfare b. welfare of person who in the %udgment of the director of health is insane+ if the insane or the one who has charge of him is opposed t o the confinement. 2. Nature f t4e act" f t4e !irectr - Ric /. )!a !e Inc4au"ti6 ?8 P4il 38?. 5ay be preliminary but is entirely independent and forms part of the %udicial proceedings ,. Nature f t4e #rcee!in$" - 2urpose: protection of the community at large (vs. appointment of guardian protection of person and estate) - *ature: police regulations ?. )enue - R$ of province where the person alleged to be insane is found 3. In"anit !efine! - condition of mind which is so impaired in function or so deranged as to induce a deviation from normal conduct - denotes a mind that is unsound+ deranged+ delirious or distracted 5. Cra:ine"" nt in"anit - the popular meaning of Zcra#y@ is not synonymous to the legal terms insane+ non compos mentis+ unsound mind+ idiot or lunatic. ntervention of the ir. of "ealth may be deemed preliminary but is entirely independent and forms part of the %udicial proceedings dealing with the guardianship of insane persons
he proceedings is primarily for the protection of the community at large+ whereas the proceedings for appointment of a guardian for the insane is to protect the person and the estate of the insane+ In"anit & condition of the mind which is so impaired in function or so deranged as to induce deviation from normal conduct in the person so afflicted. $ra#y is not synonymous with the legal terms insane+ non compos mentis+ o unsound mind+ idiot or lunatic
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time of notice: reasonable under the circumstances and gives the alleged incompetent adeDuate opportunity to be preset and be heard. he person whose liberty is sought to be restrained is entitled by law to proper notice to such proceeding and by force of statute+ other persons maybe entitled to notice. Aant of notice renders the proceedings void or at least+ is ground for vacating the order of commitment he time of notice must be reasonable under the circumstances of the particular case. he alleged incompetent must be given adeDuate opportunity to be present and to be heard in defense of his right.
Sec. ,. @earin$ an! Bu!$9ent. >pon satisfactory proof+ in open court on the date fi4ed in the order+ that the commitment applied for is for the public welfare or for the welfare of the insane person+ and that his relatives are unable for any reason to ta'e proper custody and care of him+ the court shall order his commitment to such hospital or other place for the insane as may be recommended by the irector of "ealth. he court shall ma'e proper provisions for the custody of property or money belonging to the insane until a guardian be properly appointed.
>. =ur!en f #rf - on the plaintiff who alleges insanity - if he asserts the insanity is only occasional and intermittent+ the burden is on him to prove its e4istence at the time it is alleged. - if he asserts insanity as an element of his case+ 02 rests on him to establish the fact+ although the presumption of sanity operates in his favor at the outset. 2. Prtectin f t4e e"tate f t4e in"ane #er"n - pending appeal+ the $ has %urisdiction to order a , rd party to appear and show cause why he should not deliver to the guardian property of the lunatic alleged to be unlawfully in said party@s possession. - Merca!er /. i"li:enu"6 ,? P4il 0?5. t is the duty of the court to protect the property pending appeal. Sec. ?. Di"c4ar$e f in"ane.
Ahen+ in the opinion of the irector of "ealth+ the person ordered to be committed to a hospital or other place for the insane is temporarily or permanently cured+ or may be released without danger he may file the proper petition with the $ourt of 3irst nstance which ordered the commitment.
- Lee C4in$ /. In"ular Cllectr f Cu"t9"6 ,, P4il ,21- separate and distinct from the main case from which the proceedings spring. hey rarely touch the merits of the case and deal simply with the detention of the prisoner and stop with the authority by virtue of which he is detained.
>. 'uri"!ictin an! /enue f #rcee!in$" fr re"tratin f ca#acit - probate courts or courts e4ercising probate %urisdiction - general rule: the application should be made to court in which the proceedings were had resulting in the ad%udication of incompetency
,. 4 9a a/ail f t4e writ - every person unlawfully imprisoned or restrained of his liberty under any pretense may prosecute a writ of habeas corpus - if defendant is convicted in court of record which has %urisdiction over the offense he may not avail of writ but his remedy is to appeal (the imprisonment here is not illegal but by due process of law) but if court has no %urisdiction then the writ of habeas corpus should be granted
2. Nature f t4e #rcee!in$" - special proceeding of summary character not a new proceeding but a continuance of the original guardianship proceeding ,. Relea"e f t4e in"ane #er"n - C4in A4 + /. Cnce#cin6 3? P4il 773. where the insane was %udicially committed to the hospital or asylum+ the irector of "ealth cannot order his release without approval of R$ which ordered the commitment. - R$ cannot order release without recommendation from irector of "ealth Sec. 3. Assistance of fiscal in the "roceeding. t shall be the duty of the provincial fiscal or in the $ity of 5anila the fiscal of the city+ to prepare the petition for the irector of "ealth and represent him in court in all proceedings arising under the provisions of this rule.
R(LE >82 @A=EAS CORP(S Sec. >. &o what habeas cor"us e+tends. E4cept as otherwise e4pressly provided by law+ the writ of habeas corpus shall e4tend to all cases of illegal confinement or detention by which any person is deprived of his liberty+ or by which the rightful custody of any person is withheld from the person entitled thereto. >. Pur#"e - )illa/icenci /. Luban6 ,1 P4il 770- speedy and effectual remedy to relieve persons from unlawful restraint - vital purposes: obtain immediate relief from illegal confinement+ to liberate those who may be imprisoned without sufficient cause+ and to deliver them from unlawful custody %)ela"c /. CA6 %13 - $onstitution: privilege of writ of habeas corpus cannot be suspended E4cept in cases of invasion or rebellion when the public safety reDuires it. - Juint" /. Directr f Pri"n"6 33 P4il ,8?- remedy intended to determine A* the person detained is held under lawful authority - Ali9#" /. CA6 >85 SCRA >31- sole function is to relieve from unlawful restraint cannot properly be used for any other purpose. 2. Nature - not a suit in the technical sense: not designed to obtain redress against anybody+ no %udgment can be entered against anybody+ no real plaintiff and defendant - an inDuisition by the government
?. Grun!" fr i""uance %a##lie" t all fr9" f in/luntar re"traint"6 Mncu#a /. Enrile6 %05 - where a person continues to be unlawfully denied one or more of is constitutional freedoms - where there is a present denial of due process - where the restraints are not merely involuntary but appear to be unnecessary - where a deprivation of freedom originally valid has become arbitrary 3. Petitiner<" te9#rar relea"e !e" nt ren!er #etitin fr writ 9t an! aca!e9ic - gen. rule: release+ whether permanent or temporary+ renders petition for habeas corpus moot and academic - e4cept: when there are restraints attached to his release which precludes freedom of action %Mncu#a / Enrile - e4amples of restrictions: 1. condition that petitioner gets approval of respondents for any travel outside 5etro 5anila restricts freedom of movement 7. liberty of abode restricted by need for prior approval for changing residences ,. freedom of speech muffled by prohibition that he can not give interviews =. regular reporting to respondents reDuired - it is not physical restraint alone which is inDuired into by the writ of "$ - )illa/icenci / Luban- although women were no longer under any official restraint and were free to change their domicile+ the $ourt condemned the involuntary restraints caused by the official action of transporting them out of avao. - Caunca / Sala:ar6 02 P4il 03> - employment agency has no power to curtail freedom of movement. *o physical force is reDuired freedom may be lost due to e4ternal moral compulsion. f the actual effect of such psychological spell is to place a person at the mercy of another+ the victim is entitled to court protection. - Tib / T4e Pr/incial C99an!er6 03 SCRA 35?- the moment a person is acDuitted on a criminal charge he can no longer be detained or re-arrested for the same offense. 5. Denial f cn"titutinal ri$4t - Gu9abn /. Directr6 ,7 SCRA ?28- for denial of a constitutional right to the accused+ the hearing tribunal may lose its %urisdiction and "$ would lie to obtain the release of the accused. - C4a/e: /. CA6 %50. he writ of "$ is an e4traordinary remedy must be liberally given effect so as to protect person@s liberty. Arit may issue even if another remedy which is less effective may be availed of by defendant thus+ failure of accused to perfect appeal does not preclude recourse to the writ. Arit may be granted upon a %udgment already final. 7. E;ce""i/e "entence r #enalt 9a be crrecte! b writ
0. rit a##lie! t #er"n" "entence! t life fr /ilatin f Dan$eru" Dru$" Law but #enalt re!uce! b new law - An$ele" /. =9bita %13. !ll competent courts may entertain petitions for "$ for this purpose+ although it is deficient in form as long as they are sufficient in substance. 1. T4e writ f @abea" Cr#u" i" t4e #r#er le$al re9e! t enable #arent" t re$ain cu"t! f 9inr c4il!ren - even if the child is in the custody of the , rd person of his own free will 1.a. Jue"tin f cu"t! if 9inr can be re"l/e! in #etitin fr writ %Suare: /. CA6 %1> - in custody cases involving minors+ the writ is prosecuted for the purpose of determining the right of custody if a child. - Duestions as to who shall have the custody of a child can be sufficiently resolved in petition for writ of "$ under Rue1<7+ without need of filing a separate action under Rule88 for that purpose. 1.b. 'u!icial !i"cretin in i""uance f writ - Eu$eni /. )ele:6 %18. Ahile "$ is a writ of right+ it will not issue as a matter of course or as mere perfunctory operation on the filing of the petition. 1.c. Tec4nicalit "4ul! nt "tan! in wa f $i/in$ c4il! full #rtectin - Maca: /. Nune:6 %31. 5inor@s welfare is paramount consideration what matters is not the technicalities of the case but that the immoral situation disclosed by the records be not allowed to continue. 1.!. Minr<" welfare a" #ara9unt cn"i!eratin - S9bn$ /. CA6 %15. he controversy does not involve the Duestion of personal freedom+ since an infant is presumed to be in someone@s custody until he attains ma%ority age rather the welfare of the child is the supreme consideration. "ence+ these cases are decided on the court@s view of the best interests of the child. 1.e. Reui"ite" fr i""uance f writ %S9bn$ /. CA6 %15. 1. petitioner has the right to the custody over the minor 7. the rightful custody of the minor is being withheld from the petitioner by the respondent ,. that it is to the best interest of the minor concerned to be in the custody of petitioner and not that of respondent >8. rit f 4abea" cr#u" 9a be u"e! wit4 writ f certirari fr t4e #ur#"e f re/iew %Gal/e: /. CA6 %1? - writs of "$ and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. - "$ reaches body and %urisdictional matters but not record - certiorari reaches record but not the body hus "$ [ certiorari O review >>. =ut a" a $eneral rule6 rit f @C cannt functin a" a writ f errr - "$ will not lie to correct errors of fact or of law nly e4ception: when the error affects the court@s %urisdiction or is one that would ma'e the %udgment absolutely void.
- because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court with competent %urisdiction. >,. E;ce#tinal circu9"tance" nee!e! fr $rant f t4e writ - it has to be an e4ceptional case for the writ of "$ to be available to an accused before trial. >?. Petitin fr @C nt #r#er 1. Gal/e: /. CA- for asserting or vindicating denial of right to bail 7. Stt /. Directr f Pri"n"6 %52. for correcting errors in appreciation of factsLappreciation of law >3. @C in !e#rtatin #rcee!in$" - De =i"c4# /. Galan$6 0 SCRA 2??. 2roper remedy for reviewing proceedings for deportation of aliens Sec. 2. 4 9a $rant t4e writ. he writ of habeas corpus may be granted by the Supreme $ourt+ or any member thereof+ on any day and at any time+ or by the $ourt of !ppeals or any member thereof in the instances authori#ed by law+ and if so granted it shall be enforceable anywhere in the 2hilippines+ and may be made returnable before the court or any member thereof+ or before the $ourt of 3irst nstance+ or any %udge thereof for the hearing and decision on the merits. t may also be granted by a $ourt of 3irst nstance+ or a %udge thereof+ on any day and at any time+ and returnable before himself+ enforceable only within his %udicial district. >. Cncurrent Buri"!ictin t i""ue writ - S$+ $! and R$ have concurrent %urisdiction to issue writs of "$ - writ issued by S$ and $! enforceable anywhere in 2hilippines - Arit issued by R$ or 3amily $ourt+ enforceable only within its region. 2. 'uri"!ictin f +a9il Curt" - R! ?,I8 vests 3$ with e4clusive original %urisdiction to issue writs of "$ in relation to custody of minors. ther regular courts still with %urisdiction+ but must be referred to 3$ as soon as presiding %udge returns to duty. Sec. ,. Reui"ite" f a##licatin t4erefr. !pplication for the writ shall be by petition signed and verified either by the party for whose relief it is intended+ or by some person on his behalf+ and shall set forth: (a) hat the person in whose behalf the application is made is imprisoned or restrained of his liberty (b) he officer or name of the person by whom he is so imprisoned or restrained or+ if both are un'nown or uncertain+ such officer or person may be described by an assumed appellation+ and the person who is served with the writ shall be deemed the person intended (c) he place where he is so imprisoned or restrained+ if 'nown (d) ! copy of the commitment or cause of detention of such person+ if it can be procured without impairing the efficiency of the remedy or+ if the imprisonment or restraint is without any legal authority+ such fact shall appear.
>2. rit !e" nt lie w4ere t4ere i" re9e! f a##eal >. Reui"ite" %N$aaan /. =alwe$6 %1> - in passing upon petition for "$+ the $ourt must determine whether:
1.
person in whose behalf the application is made is imprisoned or restrained of his liberty name of person detaining another place where he is imprisoned or restrained of his liberty cause of detention
Re/i"e! rule" n cri9 #r: bail is not a bar to ob%ections on illegal arrest+ lac' of or irregular preliminary investigation
2. Petitin b c99n law "#u"e - )ela"c /. CA- common law spouse may file petition as she falls within the purview of the term Bsome personC+ which means any person who has a legally %ustified interest in the freedom of the person whose liberty is restrained or who shows some authori#ation to ma'e the application
3. rit !e" nt lie w4ere t4ere i" re9e! f a##eal r certirari 5. E;ce#tinal circu9"tance" nee!e! fr $rant f writ 7. Petitin fr @C nt #r#er 1. for asserting or vindicating denial of right to bail 7. for correcting errors in appreciation of factsLappreciation of law ,. where $ with %urisdiction over cause+ person and penalty+ mista'e by $ in appreciation of factLlaw cannot be corrected by "$
7. ,. =.
,. Ma be #r"ecute! b #er"n re"traine!6 r "9e #er"n in 4i" be4alf + but if he repudiates the action ta'en+ the writ will be denied.
?. Effect f filin$ !e#rtatin ca"e" - "$+ not prohibition+ is the proper remedy for reviewing deportation proceedings.
0. rit lie" w4ere curt wit4ut Buri"!ictin t i9#"e "entence Sec. ?. When writ not allowed or discharge authori0ed. f it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or %udge or by virtue of a %udgment or order of a court of record+ and that the court or %udge had %urisdiction to issue the process+ render the %udgment+ or ma'e the order+ the writ shall not be allowed or if the %urisdiction appears after the writ is allowed+ the person shall not be discharged by reason of any informality or defect in the process+ %udgment+ or order. *or shall anything in this rule be held to authori#e the discharge of a person charged with or convicted of an offense in the 2hilippines+ or of a person suffering imprisonment under lawful %udgment. >. Su#er/enin$ e/ent" 9a bar relea"e >.a. I""uance f #rce"" - Rule: writ of "$ will * issue where the person alleged to be restrained is in custody of an officer under a process issued by competent court. %)entura /. PP6 %70 - even if arrest is illegal+ supervening events may bar his release. Ahat is to be inDuired into is the legality of his detention as of the filing of the application for a writ. -Sa / C4ief f Plice f Manila %?0- S$ ordered release of illegally restrained petitioner >*KESS they are now detained by virtue of a process issued by a competent court of %ustice. -udicial 2rocess definition: a writ+ warrant+ subpoena+ or other formal writing issued by authority of law means of accomplishing an end+ whereby court compels compliance with its demands %Malalan /. CA6 %1? >.b +ilin$ f infr9atin - applying the last sentence of Sec= Rule 1<7+ the S$ held that the writ of "$ should not be allowed after the party sought to be released had been charged before any court. 2. I9#r#er arre"t r lac f #reli9inar in/e"ti$atin nt /ali! $run! fr i""uance f writ %Ila$an /. Enrile6 >,1 SCRA ,?1 absence of preliminary investigation does not affect court@s %urisdiction over the case nor impair the validity of the information or otherwise render it defective. - remedy is not a petition for a writ of "$ but a motion before the trial court to F>!S" the warrant of arrest+ andLor nformation+ or to as' for an investigation. - "$ proceedings are not meant to determine criminal liability ,. P"tin$ f bail i" nt a wai/er - &elasco v $!: by filing for bail+ he accepted court@s %urisdiction over his person. * K*GER $*RKK*G.
1. Per"n !i"c4ar$e! n bail i" nt entitle! t t4e writ - Tan Me Ni /. Cllectr f Cu"t9"6 ,? P4il. 1??. Arit of "$ is remedy for one who is illegally detained writ will not issue in behalf of person who is not actually restrained of his liberty. 2erson discharged on bail is not imprisoned or restrained of his liberty as to entitle him to the writ. Sec. 3. 4en t4e writ 9u"t be $rante! an! i""ue! ! court or %udge authori#ed to grant the writ must+ when a petition therefor is presented and it appears that the writ ought to issue+ grant the same forthwith+ and immediately thereupon the cler' of the court shall issue the writ under the seal of the court or in case of emergency+ the %udge may issue the writ under his own hand+ and may depute any officer or person to serve it. >. Reui"ite" fr writ t i""ue 1. person must be detainedLrestrained of his liberty 7. restraint must be unlawful 2. Petitiner<" te9#rar relea"e !e" nt ren!er #etitin fr writ 9t an! aca!e9ic General Rule: release+ whether permanent or temporary+ renders petition for "$ moot and academic ET$E2 if there are restraints attached to his release which precludes freedom of action Sec. 5. T w49 writ !irecte!6 an! w4at t reuire. - n case of imprisonment or restraint by an officer+ the writ shall be directed to him+ and shall command him to have the body of the person restrained of his liberty before the court or %udge designated in the writ at the time and place therein specified. n case of imprisonment or restraint by a person not an officer+ the writ shall be directed to an officer+ and shall command him to ta'e and have the body of the person restrained of his liberty before the court or %udge designated in the writ at the time and place therein specified+ and to summon the person by whom he is restrained then and there to appear before said court or %udge to show the cause of t he imprisonment or restraint. Sec. 7. @w #ri"ner !e"i$nate! an! writ "er/e!. he person to be produced should be designated in the writ by his name+ if 'nown+ but if his name is not 'nown he may be otherwise described or identified. he writ may be served in any province by the sheriff or other proper officer+ or by a person deputed by the court or %udge. Service of the writ shall be made by
leaving the original with the person to whom it is directed and preserving a copy on which to ma'e return of service. f that person cannot be found+ or has not the prisoner in his custody+ then the service shall be made on any other person having or e4ercising such custody. Sec. 0. @w writ e;ecute! an! returne!. & he officer to whom the writ is directed shall convey the person so imprisoned or restrained+ and named in the writ+ before the %udge allowing the writ+ or+ in case of his absence or disability+ before some other %udge of the same court+ on the day specified in the writ+ unless+ from sic'ness or infirmity of the person directed to be produced+ such person cannot+ without danger+ be brought before the court or %udge and the officer shall ma'e due return of the writ+ together with the day and the ca use of the caption and restraint of such pe rson according to the command thereof.
Sec. >2. @earin$ n return* A!Burn9ent". & Ahen the writ is returned before one %udge+ at a time when the court is in session+ he may forthwith ad%ourn the case into the court+ there to be heard and determined. he court or %udge before whom the writ is returned or ad%ourned must immediately proceed to hear and e4amine the return+ and such other matters as are properly submitted for consideration+ unless for good cause shown the hearing is ad%ourned+ in which event the court or %udge shall ma'e such order for the safe'eeping of the person imprisoned or restrained as the nature of the case reDuires. f the person imprisoned or restrained is not produced because of his alleged sic'ness or infirmity+ the court or %udge must be satisfied that it is so grave that such person cannot be produced without danger+ before proceeding to hear and dispose of the matter. n the hearing the court or %udge shall disregard matters of form and technicalities in respect to any warrant or order of commitment of a court or officer authori#ed to commit by law.
Sec. 1. Defect f fr9. *o writ of habeas corpus can be disobeyed for defect of form+ if it sufficiently appears therefrom in whose custody or under whose restraint the party imprisoned or restrained is held and the court or %udge before whom he is to be brought.
Sec. >,. 4en t4e return e/i!ence6 an! w4en nl a #lea. f it appears that the prisoner is in custody under a warrant of commitment in pursuance of law+ the return shall be considered prima facie evidence of the cause of restraint but if he is restrained of his liberty by any alleged private authority+ the return shall be considered only as a plea of the facts therein set forth+ and the party claiming the custody must prove such facts.
>. rit an! Citatin !i"tin$ui"4e! - Lee Yic @n / Cllectr f Cu"t9"6 ?> P4il 3?0. $ollector of $ustoms reDuired to appear and show cause why the writ of "$ should not issue in favor of petitioner through a preliminary citation. "owever+ he allowed petitioner to be deported. S$: no contempt since preliminary citation and real habeas c orpus differ.
>. +ailure t file re#l t Return f writ warrant" !i"9i""al f #etitin6 since unless the allegations in the return are controverted+ they are deemed to be true and shall be considered prima facie evidence of cause of restraint. %+lren! /. 'a/ier6 %71 2. =ur!en f #r/in$ relea"e i" n re"#n!ent - release is an affirmative defense which must be proven by party alleging it. !lso+ evidence of release lied particularly within respondents power. %Di:n /. E!uar! %00
Sec. >8. Cntent" f return. Ahen the person to be produced is imprisoned or restrained by an officer+ the person who ma'es the return shall state therein+ and in other cases the person in whose custody the prisoner is found shall state+ in writing to the court or %udge before whom the writ is returnable+ plainly and uneDuivocably: (a) Ahether he has or has not the party in his custody or power+ or under restraint (b) f he has the party in his custody or power+ or under restraint+ the authority and the true and whole cause thereof+ set forth at large+ with a copy of the writ+ order+ e4ecution+ or other process+ if any+ upon which the party is held (c) f the party is in his custody or power or is restrained by him+ and is not produced+ particularly the nature and gravity of the sic'ness or infirmity of such party by reason of which he cannot+ without danger+ be brought before the court or %udge (d) f he has had the party in his custody or power+ or under restraint+ and has transferred such custody or restraint to another+ particularly to whom+ at what time+ for what cause+ and by what authority such transfer was made.
Sec. >?. 4en #er"n lawfull i9#ri"ne! rec99itte!6 an! w4en let t bail. & f it appears that the prisoner was lawfully committed+ and is plainly and specifically charged in the warrant of commitment with an offense punishable by death+ he shall not be released+ discharged+ or bailed. f he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable+ he may be recommitted to imprisonment or admitted to bail in the discretion of the court or %udge. f he be admitted to bail+ he shall forthwith file a bond in such sum as the court or %udge deems reasonable+ considering the circumstances of the prisoner and the nature of the offense charged+ conditioned for his appearance before the court where the offense is properly cogni#able to abide its order or %udgment and the court or %udge shall certify the proceedings+ together with the bond+ forthwith to the proper court. f such bond is not so filed+ the prisoner shall be recommitted to confinement.
Sec. >>. -eturn to be signed and sworn to. he return or statement shall be signed by the person who ma'es it and shall also be sworn to by him if the prisoner is not produced+ and in all other cases unless the return is made and signed by a sworn public officer in his official capacity.
Sec. >3. When "risoner discharged if no a""eal. Ahen the court or %udge has e4amined into the cause of caption and restraint of the prisoner+ and is satisfied that he is unlawfully imprisoned or restrained+ he shall forthwith order his discharge from confinement+ but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. f the officer or person detaining the prisoner does not desire to appeal+ the prisoner shall be forthwith released.
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S$ restored original rule that period to appeal in "$ is =? hours+ based on Sec,8 02 178+ by amending Rule =1 sec, of Rules on $iv 2ro. Saul / =ri$. Gen. Cru: %58- time prescribed for perfection of appeal is not only mandatory but %urisdictional abi$tin$ / Directr f Pri"n" %52- date on which the decisions was promulgated andLor served is not counted and the period starts to run the ff day unless it is a Sunday or legal holiday in which case it starts on succeeding day. o perfect appeal+ a notice of appeal is reDuired to be filed with the $ler' of $ourt or udge who rendered the %udgment.
Sec. >5. Penalt fr refu"in$ t i""ue writ6 r fr !i"bein$ t4e "a9e. ! cler' of a court who refuses to issue the writ after allowance thereof and demand therefor+ or a person to whom a writ is directed+ who neglects or refuses to obey or ma'e return of the same according to the command thereof+ or ma'es false return thereof+ or who+ upon demand made by or on behalf of the prisoner+ refuses to deliver to the person demanding+ within si4 (I) hours after the demand therefor+ a true copy of the warrant or order of commitment+ shall forfeit to the party aggrieved the sum of one thousand pesos+ to be recovered in a proper action+ and may also be punished by the court or %udge as for contempt. Sec. >7. Per"n !i"c4ar$e! nt t be a$ain i9#ri"ne!. ! person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful order or process of a court having %urisdiction of the cause or offense and a person who 'nowingly+ contrary to the provisions of this rule+ recommits or imprisons+ or causes to be committed or imprisoned+ for the same offense+ or pretended offense+ any person so set at liberty+ or 'nowingly aids or assists therein+ shall forfeit to the party aggrieved the sum of one thousand pesos+ to be recovered in a proper action+ notwithstanding any colorable pretense or variation in the warrant of commitment+ and may also be punished by the court or %udge granting writ as for contempt. >. State wit4ut #wer t re"er/e rearre"t - Tt /. Ra9"6 >,1 SCRA ,>1. he moment a person is acDuitted on a criminal charge he can no longer be detained or re-arrested for the same offense. Sec. >0. 4en #ri"ner 9a be re9/e! fr9 ne cu"t! t ant4er. ! person committed to prison+ or in custody of an officer+ for any criminal matter+ shall not be removed therefrom into the custody of another officer unless by legal process+ or the prisoner be delivered to an inferior officer to carry to %ail+ or+ by order of the proper court or %udge+ be removed from one place to another within the 2hilippines for trial+ or in case of fire+ epidemic+ insurrection+ or other necessity or public calamity and a person who+ after such commitment+ ma'es+ signs+ or countersigns any order for such removal contrary to this section+ shall forfeit to the party aggrieved the sum of one thousand pesos+ to be recovered in a proper action. Sec. >1. -ecord of writ$ fees and costs. he proceedings upon a writ of habeas corpus shall be recorded by the cler' of the court+ and upon the final disposition of such proceedings the court or %udge shall ma'e such order as to costs as the case reDuires. he fees of officers and witnesses shall be included in the costs ta4ed+ but no officer or person shall have the right to demand payment in advance of any fees to which he is entitled by
virtue of the proceedings. Ahen a person confined under color of proceedings in a criminal case is discharged+ the costs shall be ta4ed against the Republic of the 2hilippines+ and paid out of its reasury when a person in custody by virtue or under color of proceedings in a civil case is discharged+ the costs shall be ta4ed against him+ or against the person who signed the application for the writ+ or both+ as the court shall direct
R(LE >8, C@ANGE O+ NAME %NOTE- READ T@IS R(LE IN CON'(NCTION IT@ RA 18?0 Sec. >. enue. ! person desiring to change his name shall present the petition to the $ourt of 3irst nstance of the province in which he resides+ or+ in the $ity of 5anila+ to the uvenile and omestic Relations $ourt. >. Le$al "i$nificance f #er"n<" na9e %Re#ublic /. CA %12 - indicates the identity of a person - 7 parts: given name or proper name and surname or family name - given name may be freely selected+ but surname is fi4ed by law - characteristics: 1 . a bs olu te 7. obligator y ,. fi4ed+ unchangeable+ immutable+ and may be changed only for good cause and by %udicial proceedings =. outside the commerce of man J. imprescriptible 2. Law n a!#tin - use of surname of adopter by adopted child is both an obligation ($ivil $ode) and a right (2 I<,+ 3amily $ode+ $ivil $ode) ,. Pur#"e f rule %Re#ublic /. CA %12 - $$ !rt ,6I : *o person can change his name or surname without %udicial authority - to prevent fraud and to have+ whenever possible+ a record of the change ?. Nature f t4e #rcee!in$ - special proceeding to establish the status of a person involving his relation with others - proceeding in rem+ thus strict compliance with all %urisdictional reDuirements+ especially publication+ is essential to vest the court with %urisdiction. - only the true or official name recorded in the civil register may be changed 3. 4 9a file #etitin - all natural persons regardless of status 5. P4ili##ine citi:en"4i# nt nece""ar - Yu /. Re#ublic %55. Z2erson@ is a generic term not limited to 3ilipino citi#ens rule is clear on reDuirements (see sec7: resident for at least , years in province where the petition is filed) 7. C4an$e f na9e nt a 9atter f ri$4t
- Mre /. Re#ublic %5,. 5atter of %udicial discretion+ to be e4ercised in light of the reasons adduced and the conseDuences that will li'ely follow 0. Onl !9icile alien" allwe! t file #etitin %On$ @uan Tin /. Re#ublic6 %57 - it will not be of much benefit to him if he only stays for a short period of time -,rd persons and state is involved -change of name is not temporary in nature new name may not be shunted aside at will 1. Petitin fr c4an$e f na9e an e;ce#tin t t4e 9an!atr #r/i"in" f t4e ci/il c!e - the law fi4es the surname that may be used by the person+ and it may only be changed upon %udicial permission granted in the e4ercise of sound discretion. >8. Real na9e f #er"n in re$i"ter - the real name of a person is that given him in the $ivil Register+ not the name he was bapti#ed with or by which he has been 'nown in the community+ or which he has adopted. >>. Re#ublic /. Li9 %8?. N Bu!icial aut4rit reuire! fr cntinuu" u"e f "urna9e which a person had already been using since childhood >2. N nee! fr c4an$e f na9e b 9arrie! w9en - Ya"in /. 'u!$e %13. n the case of annulment of marriage+ or divorce+ there is no need t o file a petition for the resumption of maiden name or surname. he use of the husband@s surname is merely permissive which the wife may choose and continue to use e4cept in case of legal separation. Sec. 2. Cntent" f #etitin. ! petition for change of name shall be signed and verified by the person desiring his name changed+ or some other person on his behalf+ and shall set forth: (a) hat the petitioner has been a bona fide resident of the province where the petition is filed for at least three (,) years prior to the date of such filing (b) he cause for which the change of the petitioner;s name is s ought (c) he name as'ed for. >. Strict c9#liance wit4 reuire9ent" a. nee! fr /erificatin & T"e /. Re#ublic %57. *o reDuirement that person should be of age and that if he is a minor the verification made by him is of no legal effect b. lac f /erificatin t #etitin fr c4an$e f na9e %O"4it /. Re#ublic6 %57 verification is a formal+ not %urisdictional reDuirement+ intended to secure assurance that the contents of the petition are true and correct+ and that the pleading is filed in good faith. - court may order correction of the pleadings if verification is lac'ing+ or act on the pleading although it is not verified+ if attending circumstances are such that strict compliance may be dispensed with - lac' of verification not a ground for dismissing petition 2. Re9e! w4ere t4e #etitin fr c4an$e f na9e nt /erifie! - does not affect %urisdiction of court+ but court must have reDuired petitioner to verify petition. ,. 'uri"!ictinal reuire9ent" %Secan /. Re#ublic6 %7, 1. verified petition must be published for , successive wee's in some newspaper of general circulation in the province 7. both title or caption of the petition and the body shall recite: a. name or names or aliases of applicant
b. cause for which change of name is sought c. new name as'ed for - reason: change of name is matter of public interest - failure to comply with %urisdictional reDuirements renders proceedings a nullity ?. Nee! fr Se#arate #etitin b #r#er #art - petition must be filed by person desiring to change hisLher name+ even if it may be signed and verified by some other person in his behalf. - Re#ublic /. Marc" %18: mother files petition for minor daughter. $ourt held petition premature child must file petition when she shall have reached age of ma%ority the decision to change her name+ the reason for the change+ and the choice of a new name and surname must be her personal decision. 3. All na9e" r alia"e" 9u"t a##ear in ca#tin f #etitin - %Secan /. Re#ublic6 %7,- reader usually merely glances at the title of the petition and may only proceed to read the entire petition if the title is of interest to him - Re#ublic /. Marc"- omission is fatal to the petition 5. Nee! fr #r#er r rea"nable rea"n %Re#ublic /. CA - state has an interest in the names for purposes of identification+ and change of name not a matter of right - it is a privilege which may be granted only upon a showing of proper or reasonable cause or compelling reason thereof 7. Mu"t "4w #reBu!ice b fficial na9e petitioner must show compelling reason !* that he will be pre%udiced by the use of his true and official name %C4iu @a C4iu /. Re#ublic - valid grounds for change of name: 1. name is ridiculous+ dishonorable or e4tremely difficult to write or pronounce 7. change results as a legal conseDuence+ as in legitimation ,. change will avoid confusion %Alfn /. Re#ublic6 %08 =. having continuously used and been 'nown since childhood by a 3ilipino name+ unaware of alien parentage %An$ C4a /. Re#ublic6 %78 J. a sincere desire to adopt a 3ilipino name to erase sign of former alienage+ all in good faith and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would pre%udice public interest. %Re#ublic /. n$6 %12 7.a ("e f "urna9e "ince c4il!4! - doctrine that disallows change of name as would give the false impression of family relationship remains valid but only to the e4tent that the proposed change of name would in great probability cause pre%udice or future mischief to the family whose surname it is or to the community in general. 0. Na9e in ci/il re$i"ter i" fficial na9e - !rt =
Sec. ,. !rder for hearing. f the petition filed is sufficient in form and substance+ the court+ by an order reciting the purpose of the petition+ shall fi4 a date and place for the hearing thereof+ and shall direct that a copy of the order be published before the hearing at least once a wee' for three (,) successive wee's in some newspaper of general circulation published in the province+ as the court shall deem best. he date set for the hearing shall not be within thirty (,<) days prior to an election nor within four (=) months after the last publication of the notice. >. Pur#"e f #ublicatin - N$ =ui ui /. Re#ublic %30. to apprise public of pendency of petition so that those who may 'now of any legal ob%ection to it might come forward with the information 2. Nee! fr #ublicatin fr curt t btain Buri"!ictin Gil G /. Re#ublic %77- proceeding in rem ,. Cntent" f Petitin - title of petition must include: 1. applicant@s real name 7. his aliases or other names ,. names sought to be adopted - published order must reproduce title of petition with data already stated+ and should contain: %Secan 6 "u#ra 1. name or names of applicant 7. cause for the change of name ,. new name as'ed for ?. Effect f !i"cre#anc in #etitin an! #ubli"4e! r!er %'acb /. Re#ublic - defect is substantial+ because it did not correctly identify the party to the proceedings. - misleads court and pre%udiced the interest of the general public+ as it was impossible for anyone with adverse interest to oppose his petition. - no strict compliance with legal reDuirement regarding publication O renders entire proceedings null and void+ since c ourt has not acDuired %urisdiction. 3. Rea"n fr inclu"in f na9e "u$4t t be a!#te! a" well a" alia"e" ordinarily reader will only glance at title or caption Sec. ?. @earin$. !ny interested person may appear at the hearing and oppose the petition. he Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic. Sec. 3. 'u!$9ent. >pon satisfactory proof in open court on the date fi4ed in the order that such order has been published as directed and that the allegations of the petition are true+ the court shall+ if proper and reasonable cause appears for changing the name of the petitioner+ ad%udge that such name be changed in accordance with the prayer of the petition. >. Petitin 9u"t be "u##rte! b wei$4t rea"n" - State with interest in names for purposes of identification. $hange of name is mere privilege and not a right.
2. Curt<" !i"cretin - proper and reasonable cause is left to court@s discretion. - evidence need only be satisfactory to court and not all the best evidence available ,. Rule in c4an$in$ na9e f 9inr" - petition to change name of infant should be granted only when it is in the best interest of the child. %Cal!ern /. Re#ublic6 %57 - Gen. rule: change of name should not be permitted if it will give a false impression of family relationship to another where none actually e4ists. %Re#ublic /. Marc"6 %18 ?. In"ufficient $run!" fr c4an$e f na9e 1. separation of spouses %La#eral /. Re#ublic6 %52 7. no proof of pre%udice by use of official name %C4iu @a# /. C4iu6 %55 ,. mere use and 'nown by different name %On$ Te /. Re#ublic6 %52 =. no proof that true name evo'es derisive laughter %'acb /. Re#ublic Sec. 5. (ervice of 1udgment. 2 udgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the court issuing the same is situated+ who shall forthwith enter the same in the civil register.
R(LE >87 A=SENTEES Sec. >. A""ointment of re"resentative. Ahen a person disappears from his domicile+ his whereabouts being un'nown+ and without having left an agent to administer his property+ or the power conferred upon the agent has e4pired+ any interested party+ relative or friend+ may petition the $ourt of 3irst nstance of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. n the $ity of 5anila+ the petition shall be filed in the uvenile and omestic Relations $ourt. =a"i" : !rt. ,?1 and ,?7 of the $ivil $ode Sec. 2. Declaratin f ab"ence* w4 9a #etitin. !fter the lapse of two (7) years from his disappearance and without any news about the absentee or since the receipt of the last news+ or of five (J) years in case the absentee has left a person in charge of the administration of his property+ the declaration of his absence and appointment of a trustee or administrator may be applied for by any of the following: (a) he spouse present (b) he heirs instituted in a will+ who may present an authentic copy of the same (c) he relatives who would succeed by the law of intestacy and (d) hose who have over the property of the absentee some right subordinated to the condition of his death. =a"i" : !rts. ,?= and ,?J of the $ivil $ode eclaration may be made in:
1) administration proceedings 7) petition to place management of con%ugal properties in hands of the present spouse Sec. ,. Contents of "etition. 2 he petition for the appointment of a representative+ or for the declaration of absence and the appointment of a trustee or an administrator+ must show the following: (a) he %urisdictional facts (b) he names+ ages+ and residences of the heirs instituted in the will+ copy of which shall be presented+ and of the relatives who would succeed by the law of intestacy (c) he names and residences of creditors and others who may have any adverse interest over the property of the absentee (d) he probable value+ location and character of the property belonging to the absentee. Sec. ?. Ti9e f 4earin$* ntice an! #ublicatin t4eref. Ahen a petition for the appointment of a representative+ or for the declaration of absence and the appointment of a trustee or administrator+ is filed+ the court shall fi4 a date and place for the hearing thereof where all concerned may appear to contest the petition. $opies of the notice of the time and place fi4ed for the hearing shall be served upon the 'nown heirs+ legatees+ devisees+ creditors and other interested persons+ at least ten (1<) days before the day of the hearing+ and shall be published once a wee' for three (,) consecutive wee's prior to the time designated for the hearing+ in a newspaper of general circulation in the province or city where the absentee resides+ as the court shall deem best.
=a"i"-
!rt. ,?, of the $ivil $de
Sec. 0. Ter9inatin f a!9ini"tratin. he trusteeship or administration of the property of the absentee shall cease upon order of the court in any of the following cases: (a) Ahen the absentee appears personally or by means of an agent (b) Ahen the death of the absentee is proved and his testate or intestate heirs appear (c) Ahen a third person appears+ showing by a proper document that he has acDuired the absentee;s property by purchase or other title. n these cases the trustee or administrator shall cease in the performance of his office+ and the property shall be placed at the disposal of those who may have a right thereto. =a"i": !rt. ,?8+ $ivil $ode. 1. eclaration of absence is unnecessary when there are no properties 2resent spouse see's that administration for all classes of property be transferred to herLhim 7. *o independent action for declaration of presumptive death he disputable presumption mat arise in a ctionLspecial proceeding ,. E4ception: for purposes of marriage+ under !rt. =1+ 3amily $ode 2urpose: protect present spouse from prosecution under !rt. ,=8+ R2$ for bigamy 2resumptions under Rule 1,1.,(w) are satisfactory if uncontradicted but must yield to contradictory evidence =. $haracteristics of summary proceedings in 3amily Kaw &erified petition for truthfulness *otice of filing of petition for due process *o periods set+ discretionary on %udge+ but must be short 2reliminary conference 1) with lawyers e4cluded to remove obstructions to compromise+ 7) conducted personally by %udge in the nature of inDuisitorial hearing rial fiscal@s appearance not reDuired ecision on basis of affidavitsLdocumentary evidence *o regard to technical rules for e4pediency udgment immediately final and e4ecutory !pplication: a) separation de facto under !$2 or $2G b) declaration of presumptive death c) delivery of presumptive legitimes d) disagreement in fi4ing family domicile e) disagreement in %oint administration of !$2L$2G f) entrusting parental authority over foundlingsLabandonedLneglectedLabused children to heads of children@s homesLorpahanagesLetc. g) fi4ing of bond of parents •
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Sec. 3. O##"itin. !nyone appearing to contest the petition shall state in writing his grounds therefor+ and served a copy thereof on the pet itioner and other interested parties on or before the date designated for the hearing.
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Sec. 5. Prf at 4earin$* r!er. !t the hearing+ compliance with the provisions of section = of this rule must first be shown. >pon satisfactory proof of the allegations in the petition+ the court shall issue an order granting the same and appointing the representative+ trustee or administrator for the absentee. he %udge shall ta'e the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers+ obligations and remuneration of his representative+ trustee or administrator+ regulating them by the rules concerning guardians. n case of declaration of absence+ the same shall not ta'e effect until si4 (I) months after its publication in a newspaper of general circulation designated by the court and in the fficial Ga#ette.
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=a"i" f 2n! #ar: !rt ,?I+ $ivil $ode Sec. 7. 4 9a be a##inte!. n the appointment of a representative+ the spouse present shall be preferred when there is no legal separation. f the absentee left no spouse+ or if the spouse present is a minor or otherwise incompetent+ any competent person may be appointed by the court. n case of declaration of absence+ the trustee or administrator of the absentee;s property shall be appointed in accordance with the preceding paragraph.
R(LE >80 CANCELLATION OR CORRECTION O+ ENTRIES IN T@E CI)IL REGISTRY he provision of this Rule may be deemed modified by RE2>0K$ !$ *. 8<=? (5arch 77+ 7<<1) !* !$ !>"R\*G "E $ R 5>*$2!K $&K REGSR!R R "E $*S>K GE*ER!K $RRE$ ! $KER$!K R 2GR!2"$!K ERRR * !* E*R !*LR
$"!*GE 3 3RS *!5E R *$V*!5E * "E $&K REGSER A"> *EE 3 ! >$!K RER+ !5E**G 3R "S 2>R2SE !R$KES ,6I !* =17 3 "E $&K $E 3 "E 2"K22*ES Sec. >. Who may file "etition !ny person interested in any act+ event+ order or decree concerning the civil status of persons which has been recorded in the civil register+ may file a verified petition for the cancellation or correction of any entry relating thereto+ with the $ourt of 3irst nstance of the province where the corresponding civil registry is located. Cf. RA18?06 Sectin >. Authorit* to Correct Clerical or ,*pographical 3rror and Change of 5irst Name or Nic'name *o entry in a civil register shall be changed or corrected without a
%udicial order+ e4cept for clerical or typographical errors and change of first name or nic'name which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this !ct and its implementing rules and regulations. Effect
=arc /. CA %8?. Even though 0arco was not impleaded in the petition+ the defect was cured by compliance with §=+ Rule 1
: Such errors are removed from the ambit of Rule 1
Rule 1
$lerical or typographical errors and change of first name or nic'name
Substantial changes i.e. affects civil status+ citi#enship+ nationality and $ancellationL correction of substantial errors
Su mm ary p roc ed ure
!d ve rs aria l pro ce ed ing i .e . opp os in g pa rt ie s+ as distinguished from e parte application+ legal warning+ opportunity to contest
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mpugning legitimacy of child collaterally not allowed
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$orrectionLcancellation of wrong filiation allowed i.e. not child of entrant at all
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2eriod to file is from discovery of error
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- >pon the filing of the petition+ the court shall+ by an order+ fi4 the time and place for the hearing of the same+ and cause reasonable notice thereof to be given to the persons named in the petition. he court shall also cause the order to be published once a wee' for three (,) consecutive wee's in a newspaper of general circulation in the province.
Sec. 3. O##"itin. he civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may+ within fifteen (1J) days from notice of the petition+ or from the last date of publication of such notice+ file his opposition thereto. 'uri"#ru!ence > +ee v. CA citing !epublic 8. 8alencia Even if what was sought was the correction of the nationality and civil status of petitioners minor@ children as stated in the records+ i.e. B$hineseC to B3ilipinoC+ BlegitimateC to BillegitimateC which are not mere clerical errors+ such may be corrected as long as R1
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Separate form Rule 1<, re: change of name may not be substituted for one another for e4pediency
Sec. 2. Entrie" "ubBect t cancellatin r crrectin. >pon good and valid grounds+ the following entries in the civil register may be cancelled or corrected: (a) births (b) marriages (c) deaths (d) legal separations (e) %udgments of annulments of marriage (f) %udgments declaring marriages void from the beginning (g) legitimations (h) adoptions (i) ac'nowledgments of natural children (%) naturali#ation (') election+ loss or recovery of citi#enship (l) civil interdiction (m) %udicial determination of filiation (n) voluntary emancipation of a minor and (o) changes of name. Sec. ,. Partie". Ahen cancellation or correction of an entry in the civil register is sought+ the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. Sec. ?. Ntice an! #ublicatin.
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2etition for correction is an action in rem Entries in 0irth certificates relating to citi#enship of the father from B$hineseC to B3ilipinoC allowed under $! =6,+ Sec. 1J (e4tending 2hilippine citi#enship to minor children of those naturali#ed under K 76<) ther cases citing this rule: $o v. $ivil Registrar (<=)+ Elosida v. K$R (<7)
Sec. 5. E;#e!itin$ #rcee!in$". he court in which the proceeding is brought may ma'e orders e4pediting the proceedings+ and may also grant preliminary in%unction for the preservation of the rights of the parties pending such proceedings. Sec. 7. Or!er. !fter hearing+ the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. n either case+ a certified copy of the %udgment shall be served upon the civil registrar concerned who shall annotate the same in his record.
R(LE >81 APPEALS IN SPECIAL PROCEEDINGS
may deem proper and %ust+ permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees+ upon compliance with the conditions set forth in Rule 8< of these rules.
APPENDIK FA Sec. >. !rders or 1udgments from which a""eals may be ta3en. !n interested person may appeal in special proceedings from an order or %udgment rendered by a $ourt of 3irst nstance or a uvenile and omestic Relations $ourt+ where such order or %udgment: (a) !llows or disallows a will (b) etermines who are the lawful heirs of a deceased person+ or the distributive share of the estate to which such person is entitled (c) !llows or disallows+ in whole or in part+ any claim against the estate of a deceased person+ or any claim presented on behalf of the estate in offset to a claim against it (d) Settles the account of an e4ecutor+ administrator+ trustee or guardian (e) $onstitutes+ in proceedings relating to the settlement of the estate of a deceased person+ or the administration of a trustee or guardian+ a final determination in the lower court of the rights of the party appealing+ e4cept that no appeal shall be allowed from the appointment of a special administrator and (f) s the final order or %udgment rendered in the case+ and affects the substantial rights of the person appealing+ unless it be an order granting or denying a motion for a new trial or for reconsideration.
5ode of appeal is by record on a ppeal+ the period is ,< days ncludes an appeal in liDuidation proceedings against an insolvent corporation nly an interested person may appeal i.e. direct and material interest e.g. an e4ecutor+ lawful heirs+ surety $ertiorari and mandamus not substitute for appeal $ases appealable a) by surety from court approvalLdisapproval of accounting b) by heir approving a money claim c) order for a license to sell real estate in administration proceedings d) order against bond e) order authori#ing administrator to contract an obligationL mortgage property f) order appointing administrator g) order annulling appointment of guardian h) order removing guardian i) inventories and claim against the estate %) by a person declared incompetent ') order refusing to intervene in special proceedings l) ruling on declaration of heirs
R(LE ON G(ARDIANS@IP O+ MINORS Section 1. Applicabilit* of the !ule. 6 his Rule shall apply to petitions for guardianship over the person or property+ or both+ of a minor. he father and the mother shall %ointly e4ercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment. n such case+ this Rule shall be suppletory to the provisions of the 3amily $ode on guardianship. Sec. 7. Who ma* petition for appointment of guardian. 6 n grounds authori#ed by law+ any relative or other person on behalf of a minor+ or the minor himself if fourteen years of age or over+ may petition the 3amily $ourt for the appointment of a general guardian over the person or property+ or both+ of such minor. he petition may also be filed by the Secretary of Social Aelfare and evelopment and by the Secretary of "ealth in the case of an insane minor who needs to be hospitali#ed.
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$ases not appealable (interlocutory orders) a) directing administrator to ta'e action to recover amount due to estate b) relating to inclusion of items of property from inventory c) appointment of special administrator Sec. 2. Advance distribution in s"ecial "roceedings. *otwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent+ the court may+ in its discretion and upon such terms as it
Sec. ,. Where to file petition. 6 ! petition for guardianship over the person or property+ or both+ of a minor may be filed in the 3amily $ourt of the province or city where the minor actually resides. f he resides in a foreign country+ the petition shall be flied with the 3amily $ourt of the province or city where his property or any part thereof is situated. Sec. =. 4rounds of petition.-,he grounds for the appointment of a guardian over the person or property+ or both+ of a minor are the following: (a)
death+ continued absence+ or incapacity of his parents
(b) suspension+ deprivation or termination of parental authority (c) remarriage of his surviving parent+ if the latter s found unsuitable to e4ercise parental authority or (d)
when the best interests of the minor so reDuire.
Sec. J. ?ualifications of guardians. 6 n appointing a guardian+ the court shall consider the guardian@s: (a)
moral character
(b)
physical+ mental and psychological condition
(c)
financial status
(d)
relationship of trust with the minor
(e) availability to e4ercise the powers and duties of a guardian for the full period of the guardianship (f) lac' of conflict of interest with the minor and (g)
ability to manage the property of the minor.
Sec. I. Who ma* be appointed guardian of the person or propert*& or both& of a minor. 6 n default of parents or a court-appointed guardian+ the court may appoint a guardian of the person or property+ or both+ of a minor+ observing as far as practicable+ the following order of preference: (a) the surviving grandparent and n case several grandparents survive+ the court shall select any of them ta'ing nto account all relevant considerations (b) the oldest brother or sister of the minor over twentyone years of age+ unless unfit or disDualified (c) the actual custodian of the minor over twenty-one years of age+ unless unfit or disDualified a nd (d) any other person+ who in the sound discretion of the court+ would serve the best interests of the minor. Sec. @. Contents of petition. 6 ! petition for the appointment of a general guardian must allege the following: (a)
he %urisdictional facts
(b)
he name+ age and residence of the prospective ward
(c) he ground rendering the appointment necessary or convenient (d) he death of the parents of the minor or the termination+ deprivation or suspension of their parental authority (e)
he remarriage of the minor@s surviving parent
(h) he name+ age and residence of the person for whom letters of guardianship are prayed. he petition shall be verified and accompanied by a certification against f orum shopping. "owever+ no defect in the petition or verification shall render void the issuance of letters of guardianship. Sec. ?. ,ime and notice of hearing . Ahen a petition for the appointment of a general guardian is filed+ the court shall fi4 a time and place for its hearing+ and shall cause reasonable notice to be given to the persons mentioned in the petition+ including the minor if he is fourteen years of age or over+ and may direct other general or special notice to be given. Sec. 8. Case stud* report . he court shall order a social wor'er to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. he social wor'er may intervene on behalf of the minor if he finds that the petition for guardianship should be denied. Sec. 1<. /pposition to petition. 6 !ny interested person may contest the petition by filing a written opposition based on such grounds as the ma%ority of the minor or the unsuitability of the person for whom letters are prayed+ and pray that the petition be denied+ or that letters of guardianship issue to himself+ or to any suitable person named in the opposition. Sec. 11. Hearing and order for letters to issue. 6 !t the hearing of the petition+ it must be shown that the reDuirement of notice has been complied with. he prospective ward shall be presented to the court. he court shall hear the evidence of the parties in support of their respective allegations. f warranted+ the court shall appoint a suitable guardian of the person or property+ or both+ of the minor. !t the discretion of the court+ the hearing on guardianship may be closed to the public and the records of the case shall not be released without its approval. Sec. 17. When and ho% a guardian of the propert* for non-resident minor is appointed notice. 6 Ahen the minor resides outside the 2hilippines but has property in the 2hilippines+ any relative or friend of such minor+ or any one interested in his property+ in e4pectancy or otherwise+ may petition the 3amily $ourt for the appointment of a guardian over the property. *otice of hearing of the petition shall be given to the minor by publication or any other means as the court may deem proper. he court may dispense with the presence of the non-resident minor.
(f) he names+ ages+ and residences of relatives within the =th civil degree of the minor+ and of persons having him in their care and custody
f after hearing the court is satisfied that such non-resident is a minor and a guardian is necessary or convenient+ it may appoint a guardian over his property.
(g) he probable value+ character and location of the property of the minor and
Sec. 1,. Service of final and eecutor* judgment or order . he final and e4ecutory %udgment or order shall be served upon the Kocal $ivil Registrar of the municipality or city where the minor resides and the Register of eeds of the place
where his property or part thereof is situated shall annotate the same in the corresponding title+ and report to the court his compliance within fifteen days from receipt of the order.
he petition shall be doc'eted as a summary special proceeding n which all incidents and issues regarding the performance of the obligations of a general guardian shall be heard and resolved.
Sec. 1=. ond of guardian amount conditions.-efore he enters upon the e4ecution of his trust+ or letters of guardianship issue+ an appointed guardian may be reDuired to post a bond in such sum as the court shall determine and conditioned as follows:
Sec. 16. 4eneral duties of guardian. ! guardian shall have the care and custody of the person of his ward and the management of his property+ or only the management of his property. he guardian of the property of a nonresident minor shall have the management of all his property within the 2hilippines.
(a) o ma'e and return to the court+ within three months after the issuance of his letters of guardianship+ a true and complete nventory of all the property+ real and personal+ of his ward which shall come to his possession or 'nowledge or to the possession or 'nowledge of any other person in his behalf
! guardian shall perform the following duties:
(b) o faithfully e4ecute the duties of his trust+ to manage and dispose of the property according to this rule for the best interests of the ward+ and to provide for his proper care+ custody and education (c) o render a true and ust account of all the property of the ward in his hands+ and of all proceeds or interest derived therefrom+ and of the management and disposition of the same+ at the time designated by this rule and such other times as the court directs and at the e4piration of his trust+ to settle his accounts with the court and deliver and pay over all the property+ effects+ and monies remaining in his hands+ or due from him on such settlement+ to the person lawfully entitled thereto and (d) o perform all orders of the court and such other duties as may be reDuired by law. Sec. 1J. Where to file the bond action thereon. 6 he bond posted by a guardian shall be filed in the 3amily $ourt and+ n case of breach of any of its conditions+ the guardian may be prosecuted in the same proceeding for the benefit of the ward or of any other person legally interested in the property. Ahenever necessary+ the court may reDuire the guardian to post a new bond and may discharge from further liability the sureties on the old bond after due notice to interested persons+ if no in%ury may result therefrom to those interested in the property. Sec. 1I. ond of parents as guardians of propert* of minor . lf the mar'et value of the property or the annual ncome of the child e4ceeds 2J<+<<<.<<+ the parent concerned shall furnish a bond n such amount as the court may determine+ but in no case less than ten per centurn of the value of such property or annual income+ to guarantee the performance of the obligations prescribed for general guardians. ! verified petition for approval of the bond shall be flied in the 3amily $ourt of the place where the child resides or+ if the child resides in a foreign country+ in the 3amily $ourt of the place where the property or any part thereof is situated.
(a) o pay the %ust debts of the ward out of the personal property and the income of the real property of the ward+ f the same is sufficient otherwise+ out of the real property of the ward upon obtaining an order for its sale or encumbrance (b) o settle all accounts of his ward+ and demand+ sue for+ receive all debts due him+ or may+ with the approval of the court+ compound for the same and give discharges to the debtor on receiving a fair and %ust dividend of the property and effects and to appear for and represent the ward in all actions and special proceedings+ unless another person is appointed for that purpose (c) o manage the property of the ward frugally and without waste+ and apply the income and profits thereon+ insofar as may be necessary+ to the comfortable and suitable maintenance of the ward and if such income and profits be insufficient for that purpose+ to sell or encumber the real or personal property+ upon being authori#ed by the court to do so (d) o consent to a partition of real or personal property owned by the ward %ointly or in common with others upon authority granted by the court after hearing+ notice to relatives of the ward+ and a careful investigation as to the necessity and propriety of the proposed action (e) o submit to the court a verified inventory of the property of his ward within three months after his appointment+ and annually thereafter+ the rendition of which may be reDuired upon the application of an interested person (f) o report to the court any property of the ward not included in the inventory which is discovered+ or succeeded to+ or acDuired by the ward within three months after such discovery+ succession+ or acDuisition and (g) o render to the court for its approval an accounting of the property one year from his appointment+ and every year thereafter or as often as may be reDuired.
Sec. 1?. 0o%er and dut* of the court he court may: (a) ReDuest the assistance of one or more commissioners in the appraisal of the property of the ward reported in the initial and subseDuent inventories
deferred. he original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale or encumbrance+ but the court may+ if deemed e4pedient+ reDuire an additional bond as a condition for the sale or encumbrance. he authority to sell or encumber shall not e4tend beyond one year+ unless renewed by the court.
(b) !uthori#e reimbursement to the guardian+ other than a parent+ of reasonable e4penses incurred in the e4ecution of his trust+ and allow payment of compensation for his services as the court may deem %ust+ not e4ceeding ten per centum of the net income of the ward+ if any otherwise+ in such amount the court determines to be a reasonable compensation for his services and
Sec. 7,. Court ma* order investment of proceeds and direct management of propert*. 6 he court may authori#e and reDuire the guardian to invest the proceeds of sales or encumbrances+ and any other money of his ward in his hands+ in real or personal property+ for the best interests of the ward+ and may ma'e such other orders for the management+ investment+ and disposition of the property and effects+ as circumstances may warrant.
(c) >pon complaint of the guardian or ward+ or of any person having actual or prospective interest in the property at the ward+ reDuire any person suspected of having embe##led+ concealed+ or disposed of any money+ goods or interest+ or a written instrument belonging to the ward or his property to appear for e4amination concerning any thereof and issue such orders as would secure the property against such embe##lement+ concealment or conveyance.
Sec. 7=. 4rounds for removal or resignation of guardian. 6 Ahen a guardian becomes insane or otherwise incapable of discharging his trust or is found thereafter to be unsuitable+ or has wasted or mismanaged the property of the ward+ or has failed to render an account or ma'e a return for thirty days after it is due+ the court may+ upon reasonable notice to the guardian+ remove him as such and reDuire him to surrender the property of the ward to the person found to be lawfully entitled thereto. he court may allow the guardian to resign for %ustifiable causes.
Sec. 18. 0etition to sell or encumber propert*.- Ahen the income of a property under guardianship is insufficient to maintain and educate the ward+ or when it is for his benefit that his personal or real property or any part thereof be sold+ mortgaged or otherwise encumbered+ and the proceeds invested in safe and productive security+ or in the improvement or security of other real property+ the guardian may file a verified petition setting forth such facts+ and praying that an order issue authori#ing the sale or encumbrance of the property. Sec. 7<. /rder to sho% cause. 6 f the sale or encumbrance is necessary or would be beneficial to the ward+ the court shall order his ne4t of 'in and all personLs interested in the property to appear at a reasonable time and place therein specified and show cause why the petition should not be granted. Sec. 71. Hearing on return of order costs. 6 A t the time and place designated in the order to show cause+ the court shall hear the allegations and evidence of the petitioner and ne4t of 'in+ and other persons interested+ together with their witnesses+ and grant or deny the petition as the best interests of the ward may reDuire. Sec. 77. Contents of order for sale or encumbrance and its duration bond. f & after full e4amination+ it is necessary+ or would be beneficial to the ward+ to sell or encumber the property+ or some portion of it+ the court shall order such sale or encumbrance the proceeds of which shall be e4pended for the maintenance or the education of the ward+ or invested as the circumstances may reDuire. he order shall specify the grounds for the sale or encumbrance and may direct that the property ordered sold be disposed of at public sale+ sub%ect to such conditions as to the time and manner of payment+ and security where a part of the payment is
>pon the removal or resignation of the guardian+ the court shall appoint a new one. *o motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. Sec. 7J. 4round for termination of guardianship. 6 he court motu proprio or upon verified motion of any person allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has come of age or has died. he guardian shall notify the court of such fact within ten days of its occurrence. Sec. 7I. Service of final and eecutor* judgment or order. 6 he final and e4ecutory %udgment or order shall be served upon the Kocal $ivil Registrar of the municipality or city where the minor resides and the Register of eeds of the province or city where his property or any part thereof is situated. 0oth the Kocal $ivil Registrar and@ the Register of eeds shall enter the f inal and e4ecutory %udgment or order in the appropriate boo's in their offices. Sec. 76. 3ffect of the rule. his Rule amends Rules 87 to 86 inclusive of the Rules of $ourt on guardianship of minors. Guardianship of incompetents who are not minors shall continue to be under the %urisdiction of the regular courts and governed by the Rules of $ourt. Sec. 7?. 3ffectivit*. - his Rule shall ta'e effect on 5ay 1+ 7<<, following its publication in a newspaper of general circulation not later than !pril 1J+ 7<<,.
APPENDIK F= Rule n C99it9ent f C4il!ren SE$* 1. /bjective& -he ob%ective of this Rule is to ensure that every effort is e4erted to promote the child;s welfare and enhance his opportunities for a useful and happy life+ oward this end+ this Rule see's to protect the child from all forms of neglect+ abuse+ cruelty+ e4ploitation and other conditions pre%udicial to his development. SE$. 7. #nterpretation. -he best interests of the child shall be the paramount consideration in all actions concerning him+ whether underta'en by public or private social welfare institutions+ courts of law+ administrative authorities and legislative bodies consistent with the >nited *ations $onvention on the Rights of the $hild+ SE$. ,. 2efinition of ,erms. (a) M$hildM is a person below eighteen years of age. (b) MepartmentM refers to the epartment of Social Aelfare and evelopment+ (c) Mependent childM is one who is without a parent+ guardian or custodian+ or one whose parents+ guardian or other custodian for good cause desires to be relieved of his care and custody+ and is dependent upon the public for support. (d) M!bandoned childM is one who has no proper parental care or guardianship+ or whose parents or guardian has deserted him for a period of at least si4 (J) continuous months. (e) M*eglected childM is one whose basic needs have been deliberately unattended to or inadeDuately attended to+ physically or emotionally+ by his parents or guardian. (f) M2hysical neglectM occurs when the child is malnourished+ ill-clad and without proper shelter. (g) MEmotional neglectM occurs when a child is raped+ seduced+ mal-treated+ e4ploited+ overwor'ed or made to wor' under conditions not conducive to good health made to beg in the streets or public places+ or when placed in moral danger+ or e4posed to drugs+ alcohol+ gambling+ prostitution and other vices. (h) Misabled childM includes mentally retarded+ physically handicapped+ emotionally disturbed and mentally ill children+ children with cerebral palsy and those with similar afflictions. (i) M5entally retarded childM is one who is (1) socially incompetent+ that is+ socially
inadeDuate+ occupational] incompetent and unable to manage his own affairs (7) mentally subnormal (,) intellectually retarded from birth or early age (=) retarded at maturity (J) mentally deficient as a result of constitutional origin through heredity or diseases or (I) essentially incurable. (%) M2hysically handicapped childM is one who is crippled+ deaf-mute+ blind+ or otherwise suffers from a defect which restricts his means of action or communication with others. (') MEmotionally disturbed childM is one who+ although not afflicted with insanity or mental defect+ is unable to maintain normal social relations with others and the community in general due to emotional problems or comple4es. () M5entally ill childM is one with any behavioral disorder+ whether functional or organic+ which is of such a degree of severity as to reDuire professional help or hospitali#ation. (m) M$ommitmentM or Msurrender of a childM is the legal act of entrusting a child to the care of the epartment or any duly licensed child- placement or child-caring agency or individual by the court+ parent or guardian or any interested party. (n) Mnvoluntarily committed childM is one whose parents have been permanently and %udicially deprived of parental authority due to abandonment substantial+ continuous+ or repeated neglect abuse or incompetence to discharge parental responsibilities in accordance with Section = herein. (o) M&oluntarily committed childM is one whose parents 'nowingly and willingly relinDuished parental authority to the epartment or any duly licensed childplacement or child-caring agency or individual in accordance with Section , herein. (p) M$hild-placing or child-placement agencyM refers to a private non-profit or charitable institution or government agency duly licensed and accredited by (he epartment to provide comprehensive child welfare services+ including but not limited to+ receiving applications for adoption or foster care+ evaluating the prospective adoptive or foster parents and preparing the home study report. (D) M$hild-caring agencyM refers to a private non-profit or charitable institution or government agency duly licensed and accredited by the epartment that provides twenty-four hour residential care services for abandoned+ orphaned+ neglected+ involuntarily or voluntarily committed children. (r) MGuardian ad litem is a person appointed by the court where the case is pending for a child sought to be committed to protect his best interests. (s) M$ase Study ReportM is a written report of the result of an investigation conducted by a social wor'er as to the socio-cultural+ economic and legal status or condition of the child sought to be committed. t shall include among others his developmental age+ educational attainment+ family and social relationships+ the Duality of his peer group+ his family;s strengths and wea'nesses and parental
control over him. he report is submitted to the 3amily $ourt to aid it in its evaluation of whether the child ought to be committed to the care of the epartment or any duly licensed child-placement or child-caring agency or individual. SE$. =. (a) Who ma* file. - he Secretary of the epartment or his authori#ed representative or any duly licensed child-placement or child-caring agency having 'nowledge of a child who appears to be dependent+ abandoned or neglected+ may file a verified petition for involuntary commitment of said child to the care of any duly licensed child-placement or child-caring agency or individual. (b) 8enue. - he petition shall be filed with the 3amily $ourt of the province or city in which the parent or guardian resides or where the child is found. (c) Contents of 8erified 0etition. -he petition must state:
1. he names of the parents or guardian and their place of residence. f the child;s parents are un'nown+ petitioner must allege that diligent efforts have been e4erted to locate them. t said parents are deceased+ petitioner shall attach a certified true copy of their death certificate 7. he facts showing that the child is dependent+ abandoned+ or neglected ,. he facts showing who has custody of the child at the time of the filing of the petition and =. he name+ address and written consent of the epartment or duly licensed child-placement or child-caring agency or individual to whose care the commitment of the child is sought to be entrusted.
(d) Summons Court to Set ,ime for Hearing. - f the court is satisfied that the petition is sufficient in form and substance+ it snail direct the cler' of court to immediately issue summons which shall be served together with a copy of the petition and a notice of hearing+ upon the parents or guardian of the child and the office of the public prosecutor not less than five (J) days before the date of the hearing. he office of the public prosecutor shall be directed to immediately transmit the summons to the prosecutor assigned to the 3amily $ourt concerned. f it appears from the petition that both parents of the child are dead or that neither parent can be found in the province or city where the court is located and the child has no guardian residing therein+ summons may not be issued and the court shall thereupon appoint a guardian ad litem pursuant to Sub-section (f) below and
proceed with the hearing of the case with due notice to the provincial or city prosecutor. (e) Social Wor'er. - !fter the court sets the petition for hearing in accordance with Sub-section (d) above+ it shall direct the social wor'er to submit+ before the hearing+ a case study report of the child to aid it in evaluating whether said child should be committed to the care of the epartment or any duly licensed childplacement or child-caring agency or individual. he report shall bear the signature of the social wor'er on every page. (f) 4uardian Ad +item of Child. - f neither of the parents nor the guardian of the child can be located or does not appear in court despite due notice+ or if the court finds them incompetent to protect the best interests of the child+ it shall be the duty of the court to appoint a suitable person as guardian ad litem to represent the child. n ma'ing the appointment+ the court shall consider the bac'ground of the guardian ad litem and his familiarity with the %udicial process+ social service programs and child development. ! member of the 2hilippine 0ar may be appointed guardian ad litem. (g) ChildBs !ight to Counsel - he court+ upon reDuest of the child capable of forming his own views or upon reDuest of his guardian ad litem+ shall appoint a lawyer to represent him in the proceedings. (h) 2ut* of 0ublic 0rosecutor. - he provincial or Mcity prosecutor shall appear for the State and ascertain if there has been due notice to all parties concerned and that there is %ustification for the declaration of dependency+ abandonment or neglect. (i) Hearing. - he court shall direct the person or agency which has custody of the child to bring the latter to the court on the date of the hearing of the petition and shall ascertain the facts and determine whether the child is dependent+ abandoned+ or neglected+ and if so+ the-cause and circumstances of such condition. (%) 9udgment. - f+ after the hearing+ the court shall find the child to be dependent+ abandoned+ or neglected+ it shall render %udgment committing him to the care and custody of the epartment or any duly licensed child-placement or child-caring agency or individual until he reaches the age of eighteen (1?)+ he %udgment shall li'ewise ma'e proper provisions for the custody of the property or money belonging to the committed child. f the child is committed to the epartment+ it shall notify the court within thirty (,<) days from the order of commitment+ the name and address of the duly licensed and accredited child-placement or child-caring agency or individual where the child shall be placed. "owever+ if the court finds that the abandonment or neglect of the child may be remedied+ the child may be allowed to stay in his own home under the care and control of his parents or guardian+ sub%ect to supervision and direction of the epartment.
(') 8isitation or #nspection. - !ny duly licensed child-placement or child-caring agency or individual to whom a child has been committed by the court shall be sub%ect to visitation or inspection by a representative of the court or of the epartment+ as the case may be or of both+ to determine whether the welfare and interests of the child are being served+
the public prosecutor and the court-designated social wor'er. f the court finds after hearing that the allegations of the motion have been established and that it is for the best interests and welfare of the child+ the court shall issue an order removing him from the custody of the person or agency+ as the case may be+ and committing him to the custody of another duly licensed child-placement or childcaring agency or individual.
() !eport of 0erson or #nstitution. - !ny duly licensed child-placement or childcaring agency or individual to whom a child has been committed by %udicial order may at any time be reDuired by the court to submit a report+ containing all necessary information for determining whether the welfare of the child is being served.
n the same proceeding+ the court may suspend or revo'e the license of the agency or individual found guilty of such neglect depending upon the gravity or freDuency of the offense.
(m) ,emporar* Custod* of Child. - he duly licensed child-placement or child-caring agency or individual to whom a child has been committed may file a verified motion with the court which granted the petition for involuntary commitment of a child to place him in the care of any suitable person+ upon the latter;s reDuest+ for a period not e4ceeding one month at a time. he court may order the social wor'er to submit a case study report to aid it in evaluating whether such temporary custody shall be for the best interests of the child. he period of temporary custody of the child may be e4tended by the court for a period not e4ceeding one month at a time upon motion of the duly licensed child-placement or child-caring agency or individual to which the child has been committed.
(i) Who ma* file 4round. - he parents or guardian of a child committed to the care of a person+ agency or institution by %udicial order may file a verified motion for the restoration of his rights over the child with the court which granted the involuntary commitment on the ground that he is now able to ta'e proper care and custody of said child+ provided+ however+ that the child has not yet been adopted.
he court+ motu proprio+ or upon reDuest of the child assisted by his guardian ad litem+ or at the instance of the agency or person to whom the child was committed+ after due notice and hearing+ shall discontinue the temporary custody of the child if it appears that he is not being given proper care. !fter one month from the date temporary custody of the child was given to another suitable person+ the agency or individual shall submit to the court a verified report on whether the temporary custody of the child has promoted his best interests. (n) Change of Custod*. - f the child is committed to the epartment+ it shall have the authority to change the custody o^ a child it had placed with any duly licensed child-placement or child-caring agency or individual if it appears that such change is for the best interests of the child. he epartment shall notify the court of any change in custody of the child+ Ahen conflicting interests arise among child-placement or child-caring agencies+ the court which granted the involuntary commitment of the child+ upon motion of the epartment or any of the agencies concerned+ shall order the change of commitment of the child. (o) !emoval of Custod*. - ! motion to remove custody of a child may be filed by an authori#ed representative of the epartment with 'nowledge of the facts against a child-placement or child-caring agency or individual to whose custody a child has been committed by the court on the ground of neglect of such child as defined in Section , (e) of this Rule. he court shall set the motion for hearing with notice to
(p) !estoration of 0arental Authorit* After #nvoluntar* Commitment. -
(ii) Notice of Hearing. - he court shall fi4 the time and date for the hearing of the motion+ which shall not be earlier than thirty (,<) days nor later than si4ty (I<) days from the date of the filing of said motion and cause notice of the hearing to be sent to the person+ agency or institution to which the child has been committed+ the public prosecutor and the court-designated social wor'er+ at least five (J) days before the date of hearing. (iii) Hearing. - !t the hearing+ any person may be allowed to intervene at the discretion of the court to contest the right to the relief demanded. Aitnesses may be called and e4amined by the parties or by the court motu proprio. (iv) !esolution. - f it is found that the cause for the commitment of the child no longer e4ists and that the movant is already able to ta'e proper care and custody of the child+ the court+ after ta'ing into consideration the best interests and the welfare of the child+ shall issue a resolution terminating the parental authority of the person+ agency or institution to whom the child was committed by %udicial order and restoring parental authority to the movant+ D) 9urisdiction for 0rosecution of 0unishable Acts. - he 3amily $ourt which granted the involuntary commitment shall have %urisdiction over the prosecution of a child who left without prior permission from the person or institution to which he has been %udicially committed or the person under whose custody he has been %udicially committed in accordance with Sub-section (m) of Section = of this Rule. t shall li'ewise have %urisdiction over the person who induced the child to leave such person or institution+ e4cept in case of actual or imminent grave physical or moral danger to the child. he 3amily $ourt which granted the involuntary commitment shall also have %urisdiction over the prosecution of parents or guardians of the child who may be held liable under !rticles J8 and I< of 2.. *o. I<, and Sections 8+ 1< and ,1 of R.!. *o. 6I1<.
SE$. J. 8oluntar* Commitment of a Child to an #nstitution or #ndividual. - he parent or guardian of a dependent+ abandoned or neglected child may voluntarily commit him to the epartment or any duly licensed child- placement or child-caring agency or individual sub%ect to the rules of the epartment. "owever+ no child shall be committed unless he is surrendered in writing by his parents or guardian stating such voluntary commitment and specifically naming the office+ agency+ or individual to whose custody the child is to be committed. Such written instrument should be notari#ed and signed in the presence of an authori#ed representative of the epartment after counseling and other services have been made available to encourage the child;s parents to 'eep the child. (a) 0etition for !emoval of Custod*. (i) Who ma* file 4round. - he parents or guardian who voluntarily committed the child+ or in their absence or failure+ any person with 'nowledge of the facts+ may file a verified petition to remove custody of the child against the child-placement or child-caring agency or individual to whose custody the child has been voluntarily committed on the ground of neglect of such child as defined in Section , (e) of this Rule. ! child may also be removed from the custody of the child-placement or child-caring agency or individual on the ground that the voluntary commitment of the child was un%ustified. (ii) 8enue. - he petition shall be filed with the 3amily $ourt of the province or city where the child-placement or child-caring agency to which the child has been voluntarily committed is located or where the child may be found. Contents of 8erified 0etition - he petition must state:
he name and address of the child-placement or child-caring agency or individual to whose custody the child has been voluntarily committed he facts showing that the child has been neglected by the agency or in cases where the voluntary commitment was un%ustified+ that the parents of the child are actually capable of ta'ing care and custody of the child he name+ address and written consent of the duly licensed child-placement or child-caring agency or individual to whose care the child may be transferred. he facts showing that petitioner has e4hausted the administrative remedies available to him+ (iv) Notice of Hearing. - f the petition is sufficient in form and substance+ the court shall set the same for hearing with notice to the epartment+ the public prosecutor+ the court-designated social wor'er+ the agency or individual to whom the child has been committed and in appropriate cases+ the parents of the child. (v) 9udgment. - f after hearing the court finds that the allegations of the petition have been established and that it is for the best interests and welfare of the child+ it shall issue an order removing the child from the custody of the person or agency
concerned+ and committing him to the custody of another duly licensed childplacement or child-caring agency or individual. he court+ in the same proceeding may+ a fter hearing the comment or recommendation of the epartment+ suspend or revo'e the license of the agency or individual found guilty of such neglect depending upon the gravity or freDuency of the offense. (b) !estoration of 0arental Authorit* After 8oluntar* Commitment. - he restoration of rights of the parent or guardian over the child who has been voluntarily committed shall be governed by the rules of the epartment+ provided+ however+ that the petition for restoration is filed within si4 (I) months from the date of voluntary commitment. n case the epartment refuses to grant legal custody and parental authority to the parent or guardian over the child who has been voluntarily committed to an agency or individual+ the parent or guardian may file a petition in court for restoration of parental authority in accordance with Section = (p) of this Rule. (c) 9urisdiction for 0rosecution of 0unishable Acts. - he 3amily $ourt of the place where the child may be found or where the duly licensed child-placement or childcaring agency or individual is located shall have %urisdiction over the prosecution of a child who left without prior permission from the person or institution to which he has been voluntarily committed. t shall li'ewise have %urisdiction over the person who induced the child to leave such person or institution+ e4cept in case of grave actual or imminent physical or moral danger+ to the child. he same 3amily $ourt shall also have %urisdiction over the prosecution of parents or guardians of the child who may be held liable under !rticles J8 and I< of 2.. *o+ I<, and Sections 8+ 1< and ,1 of R.!. *o. 6I1<. SE$. I. 0etition for Commitment of a 2isabled Child. (a) Who ma* file. - Ahere a child appears to be mentally retarded physically handicapped+ emotionally disturbed+ mentally ill+ with cerebral palsy or with similar afflictions and needs institutional care but his parents or guardians are opposed thereto+ the epartment+ or any duly licensed child-placement or child-caring agency or individual may file a verified petition for commitment of the said child to any reputable institution providing care+ training and rehabilitation for disabled children. he parents or guardian of the child may file a similar petition in case no immediate placement can be arranged for the disabled child when his welfare and interests are at sta'e+ (b) 8enue. - he petition for commitment of a disabled child shall be filed with the 3amily $ourt of the place where the parent or guardian resides or where the child is found. (c) Contents of 8erified 0etition. - he petition for commitment must stale the following:
