SPECIAL 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) Escheat(c) Guardianship and custody of children(d) Trustees(e) Adoption(f) Recession and revocation of adoption(g) Hospitalization of insane persons(h) Habeas corpus(i) Change of name(j) Voluntary dissolution of corporations(k) Judicial approval of voluntary recognition of minor natural children(l) Constitution of family home(m) Declaration of absence and death (n) Cancellation or correction of entries in the civil registry

Notes: Difference between an action and a special proceeding (Natcher v

CA)

Rule 1, Section 3. (a) 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 3. (c) A special proceeding is a remedy by which a party seeks 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 seek to establish the status or right of a party or a particular fact.

*Bautista: There is a significant common feature in all these special proceedings. It 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 – JURISDICTION AND VENUE; SETTLEMENT OF ESTATE

RULE 73. VENUE AND PROCESSES Sec. 1. Where estate of deceased person settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of

administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate.

The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts.

The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record.

Notes and Cases:

Definition This proceeding is intended to settle the entire estate

Vda de Reyes vs. CA (89). It would be absurd for the heirs to intentionally exclude or leave a parcel of land or a portion thereof undistributed or undivided because the proceeding is precisely designed to end the community of interests in properties held by parties pro indiviso without designation or segregation of shares.

Special Proceedings for Settlement of Estate of deceased May be testate, where deceased left a will, or intestate when there

is no will Probate of a will is mandatory and takes precedence over intestate

proceedings If 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 proceedings, regardless if an administrator has already been probated, but without prejudice that proceeding shall continue as an intestacy

Conversion from intestate to testate proceeding Reynoso v. Santiago (85 Phil. 268). Note that mere discovery of

a document purporting to be a will of the decedent after appointment of an administrator and assumption that decedent died intestate does not ipso facto nullify the letters already issued or even authorize their revocation until will has been proved and allowed.

Court with Jurisdiction Rule 73, Section 1, Rules of Court which substantially contains the foregoing

rules still remain unamended after the passage of Batas Pambansa Bilang 129 [BP 129]. Section 1 still speaks of 'Court of First Instance,' instead of 'Regional Trial Court' and 'province' which in other parts of the Rules had been changed to 'place.' But under BP 129, the jurisdiction over settlement proceedings is not limited to Regional Trial Courts but include Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts, where

the value of the estate does not exceed P300,000 outside Metro Manila or in Metro Manila, P400,000.

Under PD 1083 Shari’a courts have jurisdiction over the settlement of estates of Muslims.

If the value of the estate is beyond these jurisdictional amounts, the proceedings should be commenced with the proper RTC (BP 129 sections 19 and 33)

Important rule: Cuenco vs. Court of Appeals, (76). The jurisdiction assumed by

a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. This is to preclude different courts from assuming jurisdiction.

VenueWhere proceedings commenced

Sec. 1, Rule 73 prescribing where the estate of the deceased is to be settled relates to venue and not jurisdiction

Thus, place of residence of the deceased does not constitute an element of jurisdiction over the subject matter but merely constitutive venue

Uriarte vs. CFI, Negros (33 SCRA 252). Wrong 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.

“resides” The term 'resides' refers to 'actual residence' as distinguished from 'legal

residence' or domicile.' [Pilipinas Shell Petroleum Corporation vs. Dumlao, G.R. No. 44888, February 7, 1992]

Garcia Fule vs. CA (76).“Resides” should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actually stay thereat. A death certificate is admissible to prove the residence of the decedent at the time of his death.

Eusebio v. Eusebio, (56). The venue of the probate proceeding can be questioned only on appeal, but certiorari is available if the impropriety of the venue (due to residence or location of the estate) appears on the record. If proceedings for the settlement of a decedent’s estate are filed in two or more courts, and the question of venue is raised, the court in which the first case was filed shall have exclusive jurisdiction to decide the issue of venue.

Powers and duties of Probate court

Orders probate of the will, grants letters of administration of the party best entitled thereto or any qualified applicant, supervises and controls all acts of administration, hears and approves claims against the estate, orders

payment of lawful debts, authorizes sale, mortgage or any encumbrance of real estate, directs the delivery of the estate to those entitled thereto

Reyes v. Mosqueda (90). Court 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 subject to final decision in a separate action regarding ownership. Court cannot adjudicate or determine title to properties claimed to be part of the estate and which are equally claimed by outside parties cannot expand to collateral matters not arising out of or in any way related to the settlement of the properties of the deceased

Question of ownership is as a rule, an extraneous matter which the probate court cannot resolve with finality

Jimenez vs. IAC. Res judicata does not exist between an action for the recovery of possession and ownership and the settlement of estate because there is a difference in cause of action. The action for settlement of estate was lodge with the RTC acting as a probate court while the action for recovery of possession and ownership was lodge with the RTC acting in its general jurisdiction. The determination of the probate court of title of the property is merely provisional.

Collation v. Order of Exclusion or Inclusion in Inventory De Leon v. CA (02)

Collation before an order of distribution is merely an order to include the properties in the inventory and is merely interlocutory

Whether collation exists 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

No execution may issue where there is an adverse claimant

Exceptions to Probate Court’s Limited Jurisdiction Coca v. Borromeo, (78) Whether a particular matter should be

resolved by the RTC in the exercise of its general jurisdiction or its limited probate jurisdiction is not a jurisdictional issue but a mere question of procedure and can be waived

Sec. 2. Where estate settled upon dissolution of marriage.When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse.

If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either.

Vita v. Montano 194 SCRA 180. If both spouses die, the conjugal partnership shall be liquidated in the testate intestate proceedings of either. It 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. 3. Process.In the exercise of probate jurisdiction, Court of First Instance may issue warrants

and processes necessary to compel the attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted them by law.

If a person does not perform an order of judgment rendered by a court in the exercise of its probate jurisdiction, it may issue a warrant for the apprehension and imprisonment of such person until he performs such order or judgment, or is released.

Sec. 4. Presumption of death.For purposes of settlement of his estate, a person shall be presumed dead if absent and unheard from for the periods fixed in the Civil Code. But if such person proves to be alive, he shall be entitled to the balance of his estate after payment of all his debts. The balance may be recovered by motion in the same proceeding.

No independent action for declaration of presumption of death disputable presumption established by the rules of evidence that a

person not heard from in 7 years is dead, may arise and be invoked either in an action or in a special proceeding, which is tried and heard by, and submitted for decision to a competent court.

Independently of such action or special proceeding, the presumption of death cannot be invoked nor can it be made the subject of an action or special proceeding (In Re Nicolai Szatrow)

PART III – SETTLEMENT OF THE ESTATE

TO better understand the rules, remember that There are 3 kinds of settlement:

1. Extrajudicial settlement of estates (Rule 74.1)2. Summary settlement of estates of small value (Rule 74.2)3. Judicial settlement through letters testamentary or letters of

administration with or without the will annexed (rules 75-89)a. Allowance or disallowance of wills (testamentary succession)b. Issuance of letters of administration or letters testamentary

i. Opposing issuance of letters testamentary ii. Bonds of executors/administratorsiii. General powers and dutiesiv. Accountability v. Revocation of administration

c. Determination of the properties included in the estate

i. Claims against the estateii. Action by and against the

executor/administrator iii. Payment of debts iv. Sales, mortgages, and other

encumberances of the property of the decedent After the charges required by law to be paid has been satisfied by the estate, partition of the residual estate will be made.

A. Extrajudicial and Summary Settlement of Estates

Rule 74 – Summary Settlement of Estates

Sec. 1. Extrajudicial settlement by agreement between heirs. –

If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized 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. If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under Section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent.

The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.

Notes and cases: §1, Rule 74 is an exemption to the rule that when a person dies leaving

property, it should be judicially administered and the competent court should appoint a qualified administrator.

The different modes of transmission of the property of the decedent may be through testamentary, legal or intestate, or mixed succession. This is to be differentiated from the different modes for the settlement of the estate of the deceased

Extrajudicial settlement of estate (Rule 74.1) Partition (Rule 69, also mentioned in rule 74.1) Summary settlement of estates of small value (74.2) Probate of wills (rules 75-79) Petition for letters of administration in cases of intestacy (rule 79)

Judicial administration is not favored. When the heirs are all of lawful age and there are no debts, there is no reason to burden the estate wit the costs and expenses 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. If partition is possible, no need to burden the estate with the costs of an administrator

What constitutes a “good reason” depends on the circumstances of the case.

Dispute among the heirs is not a good reason. Multiplicity of suits is not a good reason. To have legal capacity to appear is not a good reason

Hernandez vs. Andal. Oral partition is valid and binding. There is no requirement for the validity of a partition among the heirs to be in writing. The requirement 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

Partition is not covered by the statute of frauds (no requirement under substantive law to be in writing). It is not conveyance of property. It 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.

A compromise agreement entered into by and between the various heirs is binding upon them as individuals even without previous authority of the court.

If the court already had jurisdiction over the settlement of the estate of the deceased, the heirs cannot divest the court of its acquired jurisdiction by dividing and distributing the estate extrajudicially among themselves. An extrajudicial partition of the estate submitted by the heirs after the court has acquired jurisdiction become a judicial partition after the approval by the court.

Guevarra vs. Guevarra. Under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither 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. 2. Summary settlement of estates of small value. – Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed ten thousand pesos, and that fact is made to appear to the Court of First Instance having jurisdiction of the estate by the petition of an interested person and upon hearing, which shall be held not less than (1) month nor more than three (3) months from the date of the last publication of a notice which shall be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, 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 qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively. The court shall make such order as may be just respecting the costs of the proceedings, and all orders and judgments made or rendered in the course thereof shall be recorded in the office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded in the proper register's office.

The MTC has jurisdiction over summary settlement of estates of small value.

Sec. 3. Bond to be filed by distributes.The court, before allowing a partition in accordance with the provisions of the preceding section, may require the distributes, if property other than real is to be distributed, to file a bond in an amount to be fixed by the court, conditioned for the payment of any just claim which may be filed under the next section.

Sec. 4. Liability of distributees and estate. If it shall appear at any time within two (2) 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. And if within the same time of two (2) years, it shall appear that there are debts outstanding against the estate which have not been paid, or that an heir or other person has been unduly deprived of his lawful participation payable in money,

the court having jurisdiction 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 execution, if circumstances require, 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 (2) years after such distribution, notwithstanding any transfers of real estate that may have been made.

Notes and Cases:

Rule on limitations not applicable to those who had no knowledge of settlement

Sampilo vs. CA (103 Phil 71). The provisions of Sec 4 Rule 74, barring distributes or heirs from objecting to an extrajudicial partition after the expiration of 2 years from such extrajudicial partition, is applicable only:

a. to persons who have participated or taken part or had notice of the extrajudicial partition; and

b. when the provisions of Sec 1 or Rule 74 have been strictly complied with, i.e. that. All the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves or through their guardians.

Thus, sec 4 Rule 74 is only a bar against the parties who had taken part in the extrajudicial proceedings, but NOT against third persons not parties thereto.

Period to file a claim against the bond:

Ordinary: Heir/other person has been

unduly deprived of his lawful participation in the estate

Debts of the estate have remained unpaid

2 years from the settlement and distribution

Fraud Discovery is presumed

from the time the deed is registered

4 years from the discovery of fraud

Claims of Minors and other incapacitated persons

1 year from removal of disability

B. Judicial Settlement of Estates

Testate Proceedings

Rule 75- Production of Will Allowance of Will Necessary

Notes and Cases:

Probate of Will Mandatory

Guevarra vs. Guevarra. Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court, first, because the law expressly provides that "no will shall pass either real or personal estate unless it is proved and allowed in the proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, 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.

ExceptionArt. 1080 Civil Code. Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. (cited by the Court in Mang-Oy vs. CA, formerly Art 1056)

Court authority limited to determine extrinsic validityThe general rule is that the probate court’s authority is limited only to:

a. the extrinsic validity of the willb. the due execution thereofc. the testator’s testamentary capacityd. the compliance with the requisites or solemnities prescribed by law

Exception The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do

what the situation constrains it to do and pass upon certain provisions of the will.

Cayetano vs. Leonides (129 SCRA 33); Nepomuceno vs. CA. Where circumstances demand that the intrinsic validity of testamentary provisions be passed upon before the extrinsic validity of the will is resolved, the probate court should meet the issue.

IMPORTANTWhen the will is intrinsically void ON ITS FACE, then the probate court may dwell on the issue of intrinsic validity (the “Practical Considerations” Doctrine (Acain v. IAC)

Substantial Compliance Sufficient Substantial compliance is acceptable where the purpose of the law has

been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but never intended to be so rigid and inflexible as to destroy the testamentary privilege.

Remedy of Certiorari available- Even assuming the existence of the remedy of appeal, the Court hearkens to the rule that in the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief.

Principle not applied where meat of controversy is not intrinsic validityManinang vs. CA (82). The Nuguid and Balanay cases provide the exception rather than the rule. The intrinsic validity of the wills in those cases was passed upon even before probate because the practical considerations so demanded. Moreover, for the parties in the Nuguid case, the “meat of the controversy” was the intrinsic validity of the will.

Dismissal improper where issues are controversial Maninang vs. CA (82). By virtue of the dismissal of the Testate Case, the

determination of that controversial issue has not been thoroughly considered.

Vda. De Precilla vs. Narciso. It is a matter of public interest that a purported will is not denied legalization on dubious grounds.

Decree of Probate is conclusive as to its due execution Manahan v. Manahan (33). Settled is the rule that the decree of probate

is conclusive with respect to the due execution of the will and it cannot be impugned on any of the grounds authorized by law, except that of fraud, in any separate or independent action or proceeding

Sec. 2. Custodian of will to deliver. – The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the will.

Notes and Cases:

Heirs of the late Jesus Fran vs. Salas. Failure to attach original of the will to the petition is not critical where the will itself was adduced in evidence. It is not necessary to attach original will to petition for probate.

Sec. 3. Executor to present will and accept or refuse trust. – A person named as executor in a will shall,

within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after knows that he is named executor if he obtained such knowledge after the death of the testator,

present such will to the court having jurisdiction, 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. 4. Custodian and executor subject to fine for neglect. – A person who neglects any of the duties required in the two last preceding sections without excuse satisfactory to the court shall be fined not exceeding two thousand pesos.

Sec. 5. Person retaining will may be committed. – A 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 jurisdiction, may be committed to prison and there kept until he delivers the will.

Rule 76 - Allowance or Disallowance of Will

Sec. 1. Who may petition for the allowance of will. –

Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed. The testator himself may, during his lifetime, petition the court for the allowance of his will.

Notes and Cases:

Meaning of Interest in EstateSumilang vs. Ramagosa (67). In 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. executor, orb. 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 like a creditor.

Jurisdiction, How acquired Attaching of mere copy of will sufficient

Salazar vs. CFI of Laguna (37). It has been the practice in some courts to permit attachment of mere copy of the will to the application, without prejudice to producing the original thereof at the hearing or when the court so requires.

Delivery of Will sufficient even if no petition filed Rodriguez vs. Borja (66). The jurisdiction of the court becomes vested

upon the delivery thereto of the will even if no petition for its allowance was filed later.

Sec. 2. Contents of petition. –A petition for the allowance of a will must show, so far as known to the petitioner: (a) The jurisdictional facts; (b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent; (c) The probable value and character of the property of the estate; (d) The name of the person for whom letters are prayed; (e) If the will has not been delivered to the court, the name of the person having custody of it.But no defect in the petition shall render void the allowance of the will, or the issuance of letters testamentary or of administration with the will annexed.

The jurisdictional facts in a probate proceeding are the 1) death of the decedent, 2a)his residence at the time of death in the province where the court is sitting OR 2b) if he is an inhabitant of a foreign country, his leaving an estate in the province (also in Rule 73.1)

Sec. 3. Court to appoint time for proving will. Notice thereof to be published – When a will is delivered to, or a petition for the allowance of a will is filed in, the court having jurisdiction, such court shall fix 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 (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province. But no newspaper publication shall be made where the petition for probate has been filed by the testator himself.

Basa v. Mercado, (35).A 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.

De Aranz v. Galing, (88) Mere publication of the notice of hearing is not enough to confer jurisdiction on the court. Where the addresses of the heirs and legatees are known, personal and individual notice to them is mandatory. Such notice is not necessary and publication is sufficient only when the addresses are not known or the address given in the petition is wrong

Sec. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. - The court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not be petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing.

If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs.

The probate of a will is a proceeding in rem. publication is a prerequisite which serves as constructive notice to

the whole world. Judgment rendered therein is binding on everybody, even against the state.

Aside from publication, notice of hearing is also required to be given to the designated heirs, legatees and devisees

Notice Antemortem Probate Postmortem Probate

Publication of date and place of hearing in a newspaper of general circulation once a week for 3 consecutive weeks

No publication necessary

Notice to all devisees, heirs, legatees and executor either personally or by mail

Notice to be sent in the same manner only to the compulsory heirs

Proof at Hearing Sec. 5. Proof at hearing. - What sufficient in absence of contest. At 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. All such testimony shall be taken under oath and reduced to writing. If 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 executed as is required by law. In the case of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. In the absence of any such competent witness, and if the court deem it necessary, expert testimony may be resorted to.

Sec. 6. Proof of lost or destroyed will. - Certificate thereupon. No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.

Three facts to be proven in order that a lost or destroyed will be allowed:o Will duly executed by testatoro Will in existence when the testator died, or if not, that it was

accidentally or fraudulently destroyed in the lifetime of the testator without his knowledge

o Provisions of will clearly established by at least two credible witnesses

Araujo v. Celis. First and third facts above are secondary evidence in lieu of original

Lim Billian v. Suntay. Loss of the will should be proved before secondary evidence may be admitted.

Diaz v. De Leon. To preclude inference that testator destroyed his own will, the second fact needs to be proved.

Sec. 7. Proof when witnesses do not reside in province. – If it appears at the time fixed for the hearing that none of the subscribing witnesses resides in the province, but that the deposition of one or more of them can be taken elsewhere, the court may, on motion, direct it to be taken, and may authorize a photographic copy of the will to be made and to be presented to the witness on his examination, who may be asked the same questions 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. 8. Proof when witnesses dead or insane or do not reside in the Philippines. – If it appears at the time fixed for the hearing that the subscribing witnesses are dead or insane, or that none of them resides in the Philippines, the court may admit the testimony of other witnesses to prove the sanity of the testator, and the due execution of the will; and as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or of any of them.

Maravilla v. Maravilla. The failure of the witness to identify his own signature does not bar probate.

Sec. 11. Subscribing witnesses produced or accounted for where will contested. – If the will is contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil Code of the Philippines, if present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactory shown to the court. If all or some of such witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be taken. If any or all of them testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of the testator; in the absence of any competent witness, and if the court deem it necessary, expert testimony may be resorted to.

Sec. 12. Proof where testator petitions for allowance of holographic will. – Where 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 execution thereof. If the holographic will is contested, the burden of disproving the genuineness and due execution thereof shall be on the contestant. The testator may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant.

Summary on Proof to be Presented

Ante-mortem Holographic WillNo Contest With Contest

Testator shall affirm the holographic will and the signature are his

Burden of disproving genuineness and due execution is on the contestant. Testator may then present his evidence

Post Mortem No Contest With Contest

Holographic At least one witness who knows the handwriting and signature of the testator, or an expert witness

At least 3 witnesses who know the handwriting and signature of the testator, or an expert witness

Notarial At least one subscribing witness testifies that will executed as required by law

All subscribing witnesses andthe notary public shall testify that will was executed as required by law

Lost Wills

Prove 1. Will was in existence at the time of death of the testator, or Fraudulently or

accidentally destroyed during his lifetime of the testator without his knowledge, and

2. Provisions clearly and distinctly proven by at least 2 credible witnesses

Not Residents of the Province where Probate Court Sits

Witnesses are Dead, Insane or Non Residents of the Philippines

Take deposition of witnesses and allow them to examine a photographic copy of the will

Court may admit testimony of other witnesses to prove sanity of the testator and due execution of the will

Sec. 10. Contestant to file grounds of contest. – Anyone 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. 9. Grounds for disallowing will. – The will shall be disallowed in any of the following cases: (a) If not executed and attested as required by law; (b) If the testator was insane, or otherwise mentally incapable to make a will, at the

time of its execution; (c) If it was executed under duress, or the influence of fear, or threats; (d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; (e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto.

For 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.

If the will is executed 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.

The grounds for disallowance are exclusive. Its basis is Article 839, NCC Vda. De Perez vs. Tolete (94). Separate wills may be probated jointly

especially where the two wills contain essentially the same provisions and pertain to property which in all probability are conjugal in nature.

Sec. 13. Certificate of allowance attached to proved will. - To be recorded in the Office of Register of Deeds. If the court is satisfied, upon proof taken and filed, that the will was duly executed, and that the testator at the time of its execution 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 judge, and attested by the seal of the court shall be attached to the will and the will and certificate filed and recorded by the clerk. Attested 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.

RULE 77 - ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER

Sec. 1. Will proved outside Philippines may be allowed here. – Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines.

Art. 816, CC. Wills of aliens can be probated in the Philippines if it followed the formalities prescribed

o By the laws of the place where he resides (lex domicilii)o By the laws of his country (lex nationalii)o By the laws of the Philippines

Suntay vs. Suntay (54). Evidence necessary for the reprobate or allowance of wills

o Due execution of the will in accordance with the foreign lawso The testator has his domicile in the foreign country and not in the

Philippines o The will has been admitted to probate in such countryo The foreign tribunal is a probate court

o The laws of a foreign country on procedure and allowance of wills

Sec. 2. Notice of hearing for allowance. – When 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 Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance.

The will probated abroad should be treated as if it were an original will that is presented for probate for the first time. Thus, publication and notice to interested persons are necessary

Sec. 3. When will allowed, and effect thereof. – If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the judge, 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 clerk, and the will shall have the same effect as if originally proved and allowed in such court.

Leon & Ghezzi v. Manufacturer’s Life Insurance. Administration of an estate extends only to the assets of the decedent found within the state or country where it was granted The administrator appointed in one state has no power over property in another state or country.

Principal administration – administration granted at the decedent’s domicile. Ancillary 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. 4. Estate, how administered. – When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and such letters testamentary or of administration, shall extend to all the estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as 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 Philippines belonging to persons who are inhabitants of another state or country.

B. Administrators and Executors

Rule 78 Letters Testamentary and of Administration, When and to Whom Issued

Section 1. Who are incompetent to serve as executors or

administrators.No person is competent to serve as administrator who

(a) Is a minor; (b) Is not a resident of the Philippines; and (c) Is in the opinion of the court unfit to execute the duties of

the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.

The court cannot add new causes for disqualification. They 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.

Reyes v. Arazanso. The administrator does not have to be an heir. He may be a stranger to the estate

Tambunting de Tengco v. Tambunting. An 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.

Negative Factors1. Minors 2. Non-residents 3. Drunkenness

Something more gross than occasional intoxication must appear to preclude the appointment of the person entitled

It is only when their habits of drink are carried so far as to cloud he brain and weaken their respect for honesty and integrity that the courts take cognizance of their use of liquor.

What is contemplated by this article is drunkenness that is excessive, inveterate and continued use of intoxicants, to such an extent as to render the subject of the habit as unsafe against to entrust with the care of property or the transaction of business.

4. Improvidence Definition: want of care, business capacity, or foresight in the

management of property which would be likely 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

5. Want of Understanding It must amount to lack of intelligence.

6. Want of Integrity Integrity: soundness of moral privilege and character, shown by a

person’s dealing with others, in making and performance of contracts, in fidelity and honesty in the discharge of trust

7. Moral Turpitude Zari v. Flores (79). Definition: 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 justice, honesty, modesty or good morals.

Section 2. Executor of Executor not to administer estate.The executor of an executor shall not, as such, administer the estate of the first testator.

Section 3. Married Women may serve.

A married woman may serve as executrix or administratrix, and the marriage of a single woman shall not affect her authority so to serve under a previous appointment.

Section 4. Letters Testamentary issued when will allowed.When a will was been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if

o he is competent, o accepts the trust, and o gives bond as required by the rules

Section 5. Where some co-executors disqualified others may act.When all of the executors 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 required by the will.

Section 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent or willing to serve

(b) If such surviving husband and wife, as the case may be, or next of kin, or to the person selected by them to be incompetent or unwilling, or if the husband or widow, next of kin, neglects, for 30 days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, if may be granted to such other person as the court may select.

Rule 78.6 provides an order of preference in the appointment of an administrator.

Gonzales v. Aguinaldo (90).The 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 consequences of waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly.

However, the preference is not absolute. It may be disregarded if such action will be for the benefit of the estate

The 30 day period may be waived under the permissive tone of paragraph (b) The 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 v. CA (69). The appointment of a co-administrator is legally permissible and sanctioned in practice.

“Next of kin” – persons who are entitled under the statute of distribution to the decedent’s property.

Administration 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

Writ of Mandamus will issue only to direct the court to appoint an administrator, but not to direct the court who to appoint.

Administration extends only to the assets of a decedent found within the state or country where it was granted (Rule 78.4).

Baluyot vs. Pano. A hearing is necessary to determine the suitability of a person to be appointed administrator by giving him the opportunity to prove his qualifications 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 executor is not binding on the probate court and does not automatically entitle him to the issuance of letters testamentary. A hearing has to be conducted to ascertain his fitness to act as executor.

Rule 79 Opposing Issuance of Letters Testamentary, Petition and Contest for Letters of Administration

Section 1.Opposition to issuance of letters testamentary. Simultaneous petition for administration. Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein as executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for letters of administration with the will annexed.

Section 2. Contents of petition for letters of administration A petition for letters of administration must be filed by an interested person and must show, so far is known to the petitioner:

(a) the jurisdictional 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.

But no defect in the petition shall render void the issuance of letters of administration

Jurisdictional Facts: death of the decedent and of his residence within the country are foundation facts upon which all the subsequent proceedings in the administration of the estate rest.

Vda. De Manalo vs. CA. Art. 222 of the Civil Code requiring a compromise between family members applies only to civil actions which are essentially adversarial and involve members of the same family. The petition for letters of administration is not adversarial.

Interest is not a jurisdictional fact, but a motion to dismiss (MTD) may be granted on the basis that a person filing a petition without any interest in the administration of the estate of the deceased lacks legal capacity (see Rule 16, Saguinsin v. Lindayag).

Trillana v. Crisostomo, (51). Interested 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.

Vda. De Chua v. CA, (98). Only 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 3. Court to set time for hearing. Notice thereof. When a petition for letters of administration is filed in the court having jurisdiction, such court

shall fix a time and place for hearing the petition, and shall cause notice thereof to be given

o to the known 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 3 and 4 of Rule 76.

But the jurisdiction of the court over the proceedings for the administration of the estate must be distinguished from the jurisdiction over the persons interested in the settlement of the estate. The latter is acquired after proper notice to interested persons.

Manalo vs. Paredes. Notice is to bring all interested persons within the court’s jurisdiction so that the judgment therein becomes binding on all the world

Eusebio v. Valmores. Where no notice as required by Rule 79.3 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. This requirement 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 4. Opposition to petition for administration. Any 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.

Section 5. Hearing and order for letters to issue. At the hearing of the petition,

it must first be shown that notice has been given as herein-above required, 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 executor,

it shall order the issuance of letters of administration to the party best entitled thereto.

Section 6. When letters of administration granted to any qualified applicant. Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of letters themselves.

More Notes on Co-Administrators:

Two or more administrators may be appointed for an estate, especially when it is large and its administration complex.

Co-administration however should be resorted to in exceptional cases only because it may lead to conflict between or among the co-administrators and diffusion of responsibility.

The appointment of co-administrators has been upheld for various reasons:- To have the benefit of their judgment and perhaps at all time to

have different interests represented;- Where justice and equity demand that opposing parties or factions

be represented in the management of the estate of the deceased;- Where the estate is large, or from any cause, an intricate one to

settle; - To have all interested parties satisfied and the representatives to

work in harmony for the best interests of the estate; and- When a person entitled to the administration of the estate desires to

have another competent person associated with him in the office.

Rule 80 – Special Administrator

Section 1. Appointment of special administrator When 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 take possession and charge of the estate of the deceased until the question causing the delay are decided and executors or administrators are appointed.

Special Administrator – a representative of the decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed

The paramount consideration is always the best interest of the estate Reynoso v. Santiago (49). The appointment of a regular administrator is

necessary for the prompt settlement and distribution of the estate. There are important duties devolving on a regular administrator which a special administrator cannot perform, and there are many actions to be taken by the court which could not be accomplished before a regular administrator is appointed.

Principal object of appointment of temporary administrator is to preserve the estate until it can pass into hands of persons fully authorized to administer it for the benefit of the creditors and the heirs.

De Guzman v. Angeles. Notice through publication of the petition is a jurisdictional requirement even in the appointment of a special administrator.

When a Special Administrator may be appointed

The appointment of a special administrator is justified when there is a delay in granting letters testamentary or of administration because of

o An appeal from the allowance or disallowance of a will, or o Some other cause (ground is broad enough to include: )

Contest as to the will is being carried on in the same or in another court, or

Where there is a pending appeal as to the proceeding on the removal of an executor or administrator, or

In cases where the parties cannot agree among themselves Subject to the limitation above, the appointment of a special administrator

lies within the discretion of the court. No temporary administration can be granted where there is an executor

capable of acting.

Garcia Fule vs. CA. The discretion to appoint a special administrator or not lies in the probate court. Nothing is wrong for the judge to consider the order of preference in the appointment of a regular administrator in appointing a special administrator. After all, the consideration that overrides all others in this respect is the beneficial interest of the appointee in the estate of the decedent.

Who is to be appointed

Pijuan v. De Gurrea (66). The preference under Rule 78.6 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.

The appointment of a special administrator is temporary and subsists only until a regular administrator is appointed.

Garcia Fule v. CA.The appointing court does not determine who are entitled to share in the estate of the decedent, but who is entitled to the administration. The 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.

Corona v. CA. The executrix’s choice of Special Administrator, considering her own inability to serve and the wide latitude of discretion given her by the testratrix in her will, is entitled to the highest consideration. Since the wife owns ½ of the conjugal 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 2. Powers and duties of a special administrator. Such special administrator shall take possession and charge of the goods, chattels, rights, credits, and estate of the deceased and preserve the same for the executor or administrator afterwards appointed, and for that purpose may commence and maintain suits as administrator. He may sell only such perishable and other property as the court orders sold. A special administrator shall not be liable to pay the debts of the deceased unless so ordered by the court.

Although no period is fixed 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 80.2). A 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 3. When the powers of special administrator cease. Transfer of effects. Pending suits. When 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 executor or administrator the goods, chattels, money and estate of the deceased in his hands. The executor or administrator may prosecute final judgment suits commenced by such special administrator.

Garcia v. Flores. An order appointing a special administrator is interlocutory in nature, a mere incident to the proceedings. The court making the appointment retains control to modify, rescind, or revoke the same on sufficient grounds before final judgment.

Rule 109, Esler v. Tady. No appeal lies from the appointment of a special administrator.

Rule 81 – Bonds of Executors and Administrators

Section 1. Bond given before issuance of letters. Amount. Conditions.

Before an executor or administrator enters upon the execution 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) To make and return to the court, within 3 months, a true and complete inventory of all the goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of any other person for him; (see Rule 83.1)

(b) To administer according to these rules, and, if an executor, according to the will of the testator, all goods, chattels, rights, credits, and estate which shall come to his possession or knowledge or to the possession of any other person for him and from the proceeds to pay and discharge all debts, legacies, and charges on the same, or such dividends thereon as shall be decreed by the court;

(c) To render a true and just account of his administration to the court within 1 year, and at any other time when required by the court; (see Rule 85.8)

(d) To perform all orders of the court by him to be performed.

Luzon Surety v. Quebrar. The terms and effectivity of the bond does not depend on the payment of the premium and does not expire until the administration is closed. As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability. And for long as the administrator hold his position, the surety’s liability subsists.

Section 2. Bond of executor where directed in will. When further bond is required. If the testator in his will directs that the executor 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 require of the executor 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 3. Bonds of joint executors and administrators.When two or more persons are appointed administrators or executors the court may take separate bonds from each or a joint bond from all.

Section 4. Bond of a special administrator. A 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 make and return a true inventory of the goods, chattels, rights, credits, and estate which shall come to his possession or knowledge, and that he will truly account for such as are received by him when required by the court, and will deliver the same to the person appointed executor or administrator, or such other person as may be authorized to receive them.

A bond is necessary before an executor or administrator enters his trust.

o If the testator provides that the executor shall serve without a bond, the executor will still give a bond, but the only condition which attaches to the bond is the payment of the debts of the testator.

Additional bond may be required in the following caseso Rule 81.2, when there is a change in circumstances of the

executor/administrator or for other sufficient causeo Rule 89.7c, an additional bond may be required by the court in case

of sale, mortgage or encumbrance of the property of the estate conditioned that the administrator/executor account for the proceeds of the sale or encumbrance

RULE 82. REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORS

Sec. 1. Administration revoked if will discovered; Proceedings thereupon. – If 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 revoked 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. Proceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided.

Rule on Precedence of Probate of Will If intestate proceedings had already been instituted, the administrator must:

a. render a final account; b. turn over the estate to the executor named in the will

Uriarte v CFI. This is without prejudice to the proceedings continuing as intestacy.

Conversion of an Intestate into Testate Proceeding Reynoso v. Santiago. Whether 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.

Advincula v Teodoro. The 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 authorize their revocation until the will has been proved and allowed.

Sec. 2. Court may remove or accept resignation of executor or administrator; Proceedings upon death, resignation, or removal. – If an executor or administrator neglects to render his account and settle the estate according to law, or to perform an order or judgment of the court, or a duty expressly 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. When an executor or administrator dies, resigns, or is removed the remaining executor or administrator may administer the trust alone, unless the court grants letters to someone to act with him. If there is no remaining executor or administrator, administration may be granted to any suitable person.

Purpose of Administration Purpose = a. liquidation of the estate; b. distribution of the residue among the

heirs and legatees Liquidation = determination of all the assets of the estate and payment of all

debts and expenses Luzon Surety v Quebrar. Approval of the project of partition does not

necessarily terminate administration .

Grounds for Removal Neglects to render an account and settle the estate according to law; Neglects to perform an order or judgment of the court; Neglects to perform a duty expressly provided by these rules; Absconds, or becomes insane, or otherwise incapable or unsuitable to

discharge the trust.

Temporary Absence not a ground for Removal In re McKnight’s Will. A temporary residence outside if the state,

maintained for the benefit of the health of the executor’s family, is not such a removal from the state as to necessitate his removal as executor. Temporary 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 executor has removed from the state, within the intent of the statute.

Discretion in the Removal of Administrator Degala v Ceniza and Umpig; Mendiola v CA. The removal of an

administrator under Section 2 of Rule 82 lies within the discretion of the court appointing him.

Grounds Enumerated not Exclusive Cobarrubias v Dizon. Where the appointment of an administrator was

procured through false representations, the power of the probate court to revoke the appointment is beyond question. This is so because the position of administrator is one of confidence.

There must be Evidence to Justify Removal

Gabriel v CA (92). A mere importunity by some of the heirs, there being no factual and substantial bases therefore, is not adequate 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. 3. Acts before revocation, resignation, or removal to be valid.The lawful acts an executor or administrator before the revocation of his letters testamentary or of administration, or before his resignation

or removal, shall have the like validity as if there had been no such revocation, resignation, or removal.

Vda. de Bacaling v Laguda (73). The acts of an administrator done in good faith prior to the revocation of the letters will be protected, and similar protection will be extended to rights acquired under a previous grant of administration.

Sec. 4. Powers of new executor or administrator. - Renewal of license to sell real estate. The 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 executor or administrator, shall have the like powers to collect and settle the estate not administered that the former executor or administrator had, and may prosecute or defend actions commenced by or against the former executor or administrator, and have execution on judgments recovered in the name of such former execution or administrator. An authority granted by the court to the former executor or administrator for the sale or mortgage of real estate may be renewed in favor of such person without further notice or hearing.

Borromeo v Borromeo (55). The order of removal is appealable.

RULE 83 INVENTORY AND APPRAISAL; PROVISION FOR SUPPORT OF FAMILY

Sec. 1. Inventory and appraisal to be returned within three months. – When three (3) months after his appointment every executor 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 knowledge. In the appraisement of such estate, the court may order one or more of the inheritance tax appraisers to give his or their assistance.

Sebial v. Sebial. The three-month period is not mandatory. The fact that an inventory was filed after the three-month period would not

deprive the court of jurisdiction to approve it but may be grounds for the removal of the administrator.

Powers of the probate court: a. supervision and control over the powers of the deceased. b. Determination of what properties, rights and credits of the deceased should e included in the inventory

Inherent duties of the probate court:a. see that the inventory submitted by the administrator

contains all the properties, rights and credits which the law requires 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. 2. Certain articles not to be inventoried. – The 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. 3. Allowance to widow and family. – The 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.

Bachrach v Seifert (49): The sale of the estate is unnecessary when the cash in the possession of the administratrix 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.

Allowance for support is not limited to the minor or incapacitated children of the deceased. Under Art 133 FC (188 CC) during the liquidation of the conjugal partnership, the deceased’s legitimate spouse and children, regardless of age, civil status or gainful employment, are entitled to provisional support from the estate. This is because the right and duty to support subsist beyond the age of majority.

The allowance does not extend to grandchildren.

RULE 84 GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS

Sec. 1. Executor or administrator to have access to partnership books and property; How right enforced. – The executor or administrator of the estate of a deceased partner shall at all times have access to, and may examine and take copies of, books and papers relating to the partnership business, and may examine and make invoices of the property belonging to such partnership; and the surviving partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or control. On the written application of such executor or administrator, the court having jurisdiction of the estate may order any such surviving partner or partners to freely permit the exercise of the rights, and to exhibit the books, papers, and property, as in this section provided, and may punish any partner failing to do so for contempt.

Sec. 2. Executor or administrator to keep buildings in repair. – An executor 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. 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed. – An executor 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 expenses of administration.

Caro v. CA. An Administrator cannot exercise the right of legal redemption as this is not one of the powers of administration.

Estate of Olave v. Reyes (83). Where the estate is already the subject of testate/intestate proceedings, the adm’r cannot enter into any transaction without prior court approval.

Estate of Ruiz (96). The right of the adm’r to the possession and management of the properties of the deceased is not absolute; it can only be exercised so long as it is necessary for the payment of debts and expenses of administration.

Rule 85Account Liability and Compensation of Executors and Administrators

Sec. 1. Executor or administrator chargeable with all estate and income. – Except as otherwise expressly provided in the following sections, every executor 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. 2. Not to profit by increase or lose by decrease in value. – No executor or administrator shall profit by the increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate. He must account for the excess when he sells any part of the estate for more than appraisement, and if any is sold for less than the appraisement, he is not responsible for the loss, if the sale has been justly made. If 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.

No executor or administrator shall profit by the increase or lose by the decrease, without his fault, of any part of the estate.

Sec. 3. When not accountable for debts due estate. – No executor or administrator shall be accountable for debts due the deceased which remain uncollected without his fault.

Sec. 4. Accountable for income from realty used by him. – If the executor 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 adjusted 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.

If the executor or administrator uses any part of the real estate, he shall account for it:

(a) as agreed between him and interested parties, (b) as adjusted by court with their assent, and (c) if the parties do not agree, it will be ascertained by the court with finality.

Sec. 5. Accountable if he neglects or delays to raise or pay money. – When an executor 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.

Executor or administrator is accountable if he neglects or delays to raise or pay the money he has on his hands.

The waste and the damage sustained by the estate may be charged and allowed against the administrator in his account.

Picardal v Lladas (67). Responsibility for damages cannot be shifted to the intestate estate.

Sec. 7. What expenses and fees allowed executor or administrator. - Not to charge for services as attorney. Compensation provided by will controls unless renounced

An executor or administrator shall be allowed the necessary expenses 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, expenses, 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 exceeds five thousand pesos and does not exceed thirty thousand pesos, one-half per centum of so much of such value as exceeds thirty thousand pesos and does not exceed one hundred thousand pesos and one-quarter per centum of so much of such value as exceed one hundred thousand pesos.

But in any special case, where the estate is large, and the settlement has been attended with great difficulty, and has required a high degree or capacity on the part of the executor or administrator, a greater sum may be allowed.

If objection to the fees allowed be taken, the allowance may be re-examined on appeal. If there are two or more executors or administrators, the compensation shall be apportioned among them by the court according to the services actually rendered by them respectively. When the executor or administrator is an attorney, he shall not charge against the estate any professional fees for legal services rendered by him. When the deceased by will makes some other provision for the compensation of his executor, 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. 6. When allowed money paid as costs. – The amount paid by an executor 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 taxed was prosecuted or resisted without just cause, and not in good faith.

Compensation of an administrator P4.00 per day “for the time actually and necessarily employed” by him as

such administrator; or a “commission upon the value of so much of the estate as comes into his

possession and finally disposed of by him”; or 2% of the first P5000, 1% in excess of P5000 up to P30000, 1/2% in excess of

P30k up to P100k and ¼% in excess of P100k. A greater sum may be allowed: (a) where the estate is large, (b) the

settlement has been attended with great difficulty, and (c) has required a high degree of capacity on the part of the executor.

Necessary Expenses Hermanos v. Abada. Necessary expenses of administration are such

expenses as are entailed for the preservation and productivity of the estate and for its management for purposes of liquidation, payment of debts, and distribution of the residue among persons entitled thereto.

Guzman v. De-Guzman-Carillo (78). Expenses 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 expense.

Attorney’s Fees Administrator may not recover attorney’s fees from the estate. Attorney’s fees may be allowed as expenses of administration. If the administrator himself is the counsel for the heirs, it is the latter who

must pay therefore. Heirs and other interested persons may inquire into the value of the services

of the lawyer and the necessity of its employment.

Sec. 8. When executor or administrator to render account. – Every executor 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 extensions 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 require until the estate is wholly settled.

Every executor or administrator shall render an account of his administration within one (1) year from the time of receiving letters testamentary or of administration.

Joson v Joson (61). The duty of an administrator to render an account is not a mere incident of an administration proceeding which can be waived or disregarded when the same is terminated, but that it is a duty that has to be performed and duly acted upon by the court before administration is finally ordered closed and terminated.

Sec. 9. Examination on oath with respect to account. – The court may examine the executor or administrator upon oath with respect to every matter relating to any account rendered by him, and shall so examine him as to the correctness of his account before the same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof. The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the executor or administrator of being examined on oath of any matter relating to an administration.

A hearing is usually held before an administrator’s account is approved, especially if an interested party raises objections to certain items in the accounting report.

Guzman v. De-Guzman-Carillo (78). Oppositors may present proof to rebut the administrator’s evidence in support of his accounts.

Sec. 10. Account to be settled on notice. – Before the account of an executor or administrator is allowed, notice shall be given to persons interested of time and place of examining 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. – Upon the settlement of the account of an executor or administrator, a person liable as surety in respect to such account may, upon application, be admitted as party to such accounting.

C. Settlement of the Estate – determination of property of the estate and claims against it

RULE 86 - Claims against Estate

Sec. 1. Notice to creditors to be issued by court. - Immediately after granting letters testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of said court.

Estate of Olave v. Reyes (83). Purpose of presentation of claims against estate is to protect the estate of the deceased person. Also, to apprise the administrator and the probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or pro rata portion in the due course of the administration. A 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. 2. Time within which claims shall be filed. – In 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 (12) nor less than six (6) months after the date of the first publication of the notice. However, 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 equitable, allow such claim to be filed within a time not exceeding one (1) month.

The Statute of Non-claims The period fixed by the rule where certain creditors of a deceased person

must present their claims for examination and allowance. Probate court is permitted to set the period provided it is not less than 6

months nor more than 12 months after the date of publication of notice. Santos v. Manarang. Purpose: to insure a speedy settlement of affairs of

the deceased and early delivery of the property to the person entitled to the same.

Extension of Period 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 equitable, allow such claim to be filed within a time not exceeding one (1) month.

Echaus v Blanco. Period prescribed in the notice to creditors is not exclusive; 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 equitable.

Presentation of Money claim may be waived Ignacio v Pampanga Bus Co., Inc (67). Though presentment of probate

claims is imperative, it is generally understood that it may be waived by the estate’s representative. And waiver is to be deduced from the administrator’s acts and conduct. Certainly 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. 3. Publication of notice to creditors. – Every executor or administrator shall, immediately after the notice to creditors is issued, cause the same to be published three (3) weeks 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. 4. Filing copy of printed notice. – Within ten (10) days after the notice has been published and posted in accordance with the preceding section, the executor 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. 5. Claims which must be filed under the notice. - If not filed, barred; exceptions. All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent, and judgment for money against the decedent, must be filed within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor 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 judgment 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. Claims not yet due or contingent, may be approved at their present value.

Type of claims required to be filed: a. Only 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.

Exception: Funeral expenses and expenses of the last sickness of the decedent.

b. Judgment for money against decedent must be presented as a claim against the estate, where judgment debtor dies before levy on execution of his properties.

c. Pineda v. CFI. Claims for taxes due and assessed after death need not be presented in the form of a claim. Court may direct executor or administrator to pay such taxes.

Period runs against all claimants, hence claims not presented within the time provided in the notice are barred.

Modification of enumeration Sec. 5, rule 86 provides an exclusive enumeration of what claims may be filed

against the estate. According to the Old rules, money claims arising from delict do not form part

of this enumeration. Hence, there could be no legal basis in treating an action ex delicto as an ordinary contractual money claim referred to in Sec. 21, rule 3; and allowing it to survive by filing a claim therefore before the estate of the deceased accused.

Actions which Survive Death The following cases survive the death of a party: an action to recover (1)

contractual money claims, (2) real or personal property or an interest therein, from the estate, or to enforce a lien therein, and (3) action to recover damages for an injury to property, real or personal. Such may be commenced against the administrator under rule 87.

Only when there is a favorable judgment that the judgment shall be enforced in the manner provided in these rules for prosecuting claims against the estate of a deceased person.

Dinglasan v Ang Chia. The probate court case may be held in abeyance pending determination of an ordinary action wherein an executor or administrator is made a party.

Simple money claims on appeal and defendant dies Paredes v. Moya (74). If defendant dies while appeal is pending, appeal

continues and after final judgment, a claim may be filed within time limits. Py Eng Cong v. Herrera (76).If death occurred prior to the levy, judgment

creditor must file claim in probate court. Manalansan v. Castaneda (78). Action for foreclosure of mortgage

survives and may be enforced by writ of execution against the administrator without filing a claim in probate court.

Tanchueco v. Aguilar (70). Action for ejectment may be prosecuted despite the death of defendant and may continue until final judgment in which the question of damages should be adjudicated.

Salazar v. CA (95). Unpaid rentals are not simple money claims but may be the measure of the determination of damages.

Rule includes absolute and contingent claims Absolute claim is such claim as, if contested between living person, would be

proper subject of immediate legal action and would supply a basis of a judgment for a sum certain.

Gaskell & Co. v. Tan Sit. Contingent claim is one, by which, by its nature is necessarily dependent upon an uncertain event for its existence and claim, and its validity and enforceability depending upon an uncertain event.

Examples of the latter are: surety of a contract, indorser of a negotiable instrument, etc.

[different types of claims against the estate]

Sec. 6. Solidary obligation of decedent. – Where 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 prejudice to the right of the estate to recover contribution form the other debtor. In a joint obligation of the decedent, the claim shall be confined to the portion belonging to him.

PNB v. Independent-Planters Association, Inc (83). Where the obliga-tion of the decedent is solidary with another debtor, the claim shall be filed against the decedent as if he were the only debtor, without prejudice to the right of the estate to recover contribution from the other debtor. In a joint obligation of the decedent, the claim shall be confined to the portion belonging to him.

Sec. 7. Mortgage debt due from estate. –A 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 realize upon his security, by action in court, making the executor or administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceeding to realize upon the security, he may claim his deficiency judgment 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 executor 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 adjudge it to be for the best interest of the estate that such redemption shall be made.

Osorio v San Agustin (13). A 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; (2) or he may

foreclose his mortgage judicially and claim his deficiency from the estate (3) or he may foreclose extrajudicially and rely on his security alone

But the law does not provide that he may have both remedies. If he fails in one, he fails utterly.

No right to claim deficiency under the third option The 3rd option: The 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.

Perez v PNB (66). The third mode includes extrajudicial foreclosure sales, the result of which is that the creditor waives any further deficiency claim.

Sec. 8. Claim of executor or administrator against an estate. – If the executor or administrator has a claim against the estate he represents, he shall give notice thereof, in writing, to the court, and the court shall appoint a special administrator, who shall, in the adjustment of such claim, have the same power and be subject to the same liability as the general administrator or executor in the settlement of other claims. The court may order the executor or administrator to pay to the special administrator necessary funds to defend such claim.

Sec. 9. How to file a claim. Contents thereof; Notice to executor or administrator. – A claim may be filed by delivering the same with the necessary vouchers to the clerk of court and by serving a copy thereof on the executor or administrator. If 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. On demand, however, of the executor or administrator, or by order of the court or judge, the original shall be exhibited, 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. When the claim is due, it must be supported by affidavit stating the amount justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. If the claim is not due, or is contingent, when filed, it must also be supported by affidavit stating the particulars thereof. When 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. The 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.

How to file a claim:a. A claim may be filed by delivering the same with the necessary vouchers to

the clerk of court and by serving a copy thereof on the executor or administrator.

b. If 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.

c. When the claim is due, it must be supported by affidavit stating the amount justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant.

d. If the claim is not due, or is contingent, when filed, it must also be supported by affidavit stating the particulars thereof.

e. The claim once filed shall be attached to the record of the case in which the letters testamentary or of administration were issued.

Sec. 10. Answer of executor or administrator; Offsets. – Within fifteen (15) days after service of a copy of the claim on the executor 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. If he has no knowledge sufficient to enable him to admit or deny specifically, he shall state such want of knowledge. The executor 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. A copy of the answer shall be served by the executor or administrator on the claimant. The court in its discretion may extend the time for filing such answer.

Sec. 11. Disposition of admitted claim. – Any claim admitted entirely by the executor or administrator shall immediately be submitted by the clerk to the court who may approve the same without hearing; but the court, in its discretion, before approving the claim, may order that known heirs, legatees, or devisees be notified and heard. If upon hearing, an heir, legatee, or devisee opposes the claim, the court may, in its discretion, allow him fifteen (15) days to file an answer to the claim in the manner prescribed in the preceding section.

Sec. 12. Trial of contested claim. – Upon the filing of an answer to a claim, or upon the expiration of the time for such filing, the clerk of court shall set the claim for trial with notice to both parties. The court may refer the claim to a commissioner.

Sec. 13. Judgment appealable. – The judgment 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. A judgment against the executor 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 judgment creditor any priority of payment.

Sec. 14. Costs. – When the executor 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 judgment, he cannot recover costs, but must pay to the executor or administrator costs from the time of the offer. Where 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.

RULE 87 ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS Sec. 1. Actions which may and which may not be brought against executor or administrator. – No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor 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 for an injury to person or property, real or personal, may be commenced against him.

Claims against the Administrator may be presented in the Administration proceedings but not against third persons.

Demands 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 subject to its authority

Paula v. Ecsay, 97 Phil 617. But 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

Republic v. De la Rama, 124 Phil 1493. When 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.

Melgar v. Buenviaje, 1989. An action for damages may be brought against an executor or administrator.

Romualdez v. Tiglao, 105 SCRA 762. As a general rule, no action upon a claim for recovery of money or debt or interest shall be commenced against the executor or administrator because the creditor’s remedy is to file a proper claim in the proceeding for the settlement of the deceased’s estate. But if the judgment creditors had no alternative but to file an action for revival of money judgment to pre-empt its extinguishment by prescription, the action may be properly filed against the administrator.

Sec. 2. Executor or administrator may bring or defend actions which survive. – For the recovery or protection of the property or rights of the deceased, an executor or administrator may bring or defend, in the right of the deceased, actions for causes which survive.

Actions which survive

Bayot v. Zurbito, 39 Phil 650. Recognizes the right of the executor or administrator to sue upon any cause of action which accrued to the decedent during his lifetime

Except for money claims specified in Section 5 of R86which 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 executor or administrator.

Aguas v. Llenos (62). Injury to property is not limited to injuries to specific property but extends to other wrongs such as maliciously causing a party to cause unnecessary expenses

Melgar v. Buenviaje (89). Action for damages caused by tortuous acts may be brought against the executor or administrator of the estate

Sec. 3. Heir may not sue until have share assigned. – When an executor 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 expired.

Previous declaration of heirship Not necessary Suiliong v. Marine Insurance, 12 Phil 13. Judicial declaration of heirship is

not necessary in order that an heir may assert his right to the property of a deceased. This 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.

Heirs may bring a Reinvindicatory action before declaration of heirsip Banacihan v. Aliibodbod. Heirs may bring reinvindicatory action in their

own 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.

Heirs may not sue when there is an administrator appointed, until share is assigned

No 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 expired

Before distribution is made or before any residue is known, the heirs or devisees have no cause of action against the administrator for the recovery of the property left by the deceased.

Del Rosario v. Del Rosario, 2 Phil. 321. The prohibition does not apply to donees inter vivos, who may file an action to compel the administrator to deliver the property.

where action may be filed by heirs in court jurisprudence recognizes three exceptions 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 executor or administrator is unwilling or refuses to bring suit (Pascual v. Pascual, (42));

(b) when the administrator is alleged to have participated in the act complained of and he is made a party defendant (Borromeo v. Borromeo, (56)); and (c) when there is no administrator appointed (Rioferio v. CA, (04))

Sec. 4. Executor or administrator may compound with debtor. – With the approval of the court, an executor or administrator may compound with the debtor of the deceased for a debt due, and may give a discharge of such debt on receiving a just dividend of the estate of the debtor.

Sec. 5. Mortgage due estate may be foreclosed. – A mortgage belonging to the estate of a deceased person, as mortgagee or assignee of the right of a mortgagee, may be foreclosed by the executor or administrator.

Calimbas v. Paguio, 46 Phil 566. Administrator or executor does not need a special authority from the court to bring an action for foreclosure on behalf of the estate

Sec. 6. Proceedings when property concealed, embezzled, or fraudulently conveyed. – If an executor or administrator, heir, legatee, creditor, or other individual interested in the estate of the deceased, complains to the court having jurisdiction of the estate that a person is suspected of having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased, or that such person has in his possession or has knowledge 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 examine him on oath on the matter of such complaint; and if the person so cited refuses to appear, or to answer on such examination or such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court. The interrogatories put to any such person, and his answers thereto, shall be in writing and shall be filed in the clerk's office.

Purpose of Examination Elicit information or secure evidence from the persons suspected of having

possession or knowledge of the property or will of the deceased or of having concealed, embezzled, or conveyed away any of the property of the deceased

In such proceeding, court has no authority to adjudicate titles or determine converted rights; merely to investigate and take testimony for use in an independent action

Chua v. Absolute Management Corp, (03). If after examination there is good reason for believing for believing that the person so examined has

property in his possession belonging to the estate, it is the duty of the administrator, by ordinary action to recover the same.

Sec. 7. Person entrusted with estate compelled to render account. – The court, on complaint of an executor or administrator, may cite a person entrusted by an executor or administrator with any part of the estate of the deceased to appear before it, and may require such person to render a full account, on oath, of the money, goods, chattels, bonds, accounts, or other papers belonging to such estate as came to his possession in trust for such executor or administrator, and of his proceedings thereon; and if the person so cited refuses to appear to render such account, the court may punish him for contempt as having disobeyed a lawful order of the court.

Sec. 8. Embezzlement before letters issued. –If a person, before the granting of letters testamentary or of administration on the estate of the deceased, embezzles 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 executor or administrator of the estate for double the value of the property sold, embezzled, or alienated, to be recovered for the benefit of such estate.

NOTES AND CASES: Double 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 embezzlement or alienation which causes the estate to lose the property converted by the wrongdoer (Marshall v. Anthalz)

Sec. 9. Property fraudulently conveyed by deceased may be recovered; When executor or administrator must bring action. – When there is deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses 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 subject of the attempted conveyance would be liable to attachment by any of them in his lifetime, the executor or administrator may commence and prosecute to final judgment an action for the recovery of such property, right, interest, debt, or credit for the benefit of the creditors; but he shall not be bound to commence the action unless on application of the creditors of the deceased, nor unless the creditors making the application pay such part of the costs and expenses, or give security therefor to the executor or administrator, as the court deems equitable.

Sec. 10. When creditor may bring action; Lien for costs. – When there is such a deficiency of assets, and the deceased in his

lifetime had made or attempted such a conveyance, as is stated in the last preceding section, and the executor or administrator has not commenced the action therein provided for, any creditor of the estate may, with the permission of the court, commence and prosecute to final judgment, in the name of the executor or administrator, a like action for the recovery of the subject of the conveyance or attempted conveyance for the benefit of the creditors. But the action shall not be commenced until the creditors has filed in a court a bond executed to the executor or administrator, in an amount approved by the judge, conditioned to indemnify the executor or administrator against the costs and expenses incurred by reason of such action. Such creditor shall have a lien upon any judgment recovered by him in the action for such costs and other expenses incurred therein as the court deems equitable. Where the conveyance or attempted conveyance has been made by the deceased in his lifetime in favor of the executor or administrator, the action which a creditor may bring shall be in the name of all the creditors, and permission of the court and filing of bond as above prescribed, are not necessary.

Requisites for Creditor to file action:1. there is a deficiency of assets in the hands of an executor or administrator

for the payment of debts and expenses of administration2. deceased in his lifetime had made or attempted to make 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

3. subject of the attempted conveyance would be liable to attachment by any of them in his lifetime

4. executor or administrator had shown to have no desire to file the action or failed to institute the same within reasonable time

5. leave is granted by the court to the creditor to file the action6. bond is filed by the creditor as prescribed by the rule7. action by creditor is in the name of the executor or administrator

According to Justice Moran, the last 3 requisites is unnecessary where the grantee is the executor or administrator himself in which event the action would be in the name of all the creditors

RULE 88 – PAYMENT OF THE DEBTS OF THE ESTATE

Sec. 1. Debts paid in full if estate sufficient. – If, 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 executor or administrator shall pay the same within the time limited for that purpose.

A writ of execution is not proper to enforce payment of debts and expenses of administration. The proper procedure is for the court to order the sale of personal estate or the sale or mortgage of real property of the deceased.

o Proceeds will be used to pay all the outstanding debts and the expenses of administration

Sec. 2. Part of estate from which debt paid when provision made by will. – If the testator makes provision by his will, or designates the estate to be appropriated for the payment of debts, the expenses of administration, or the family expenses, 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.

Santos v. Manarang, 27 Phil 209.Even if the testator has acknowledged a specific debt in his will, the creditor must still file is claim otherwise it would be barred (see also Rule 86)

Sec. 3. Personalty first chargeable for debts, then realty. – The personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and expenses; 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 executor or administrator, after obtaining the authority of the court therefor. Any deficiency shall be met by contributions in accordance with the provisions of section 6 of this rule.

Realty is liable for debts and expenses only when1. the personal estate of the decedent is not sufficient for the purpose, or 2. sale of personalty would be detrimental to the participants of the estate

Sec. 4. Estate to be retained to meet contingent claims. – If the court is satisfied that a contingent claim duly filed is valid, it may order the executor 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 equal to the dividend of the other creditors.

Sec. 5. How contingent claim becoming absolute in two years allowed and paid; Action against distributees later.If such contingent claim becomes absolute and is presented to the court, or to the executor or administrator, within two (2) years from the time limited for other creditors to present their claims, it may be allowed by the court if not disputed by the executor or administrator, and, if disputed, it may be proved and allowed or disallowed by the court as the facts may warrant. If the contingent claim is allowed, the creditor shall receive payment to the same extent as the other creditors if the estate retained by the

executor or administrator is sufficient. But if the claim is not so presented, after having become absolute, within said two (2) years, and allowed, the assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same; 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.

If the contingent claim matures after the expiration of 2 years, the creditor may sue the distributees, whose liability is proportionate to the shares in the estate received by them

Rule 88.5 is the only instance wherein a creditor may file an action against the distributee of the estate

The 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. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession. – Where devisees, legatees, or heirs have entered into possession of portions of the estate before the debts and expenses have been settled and paid, and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction 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 execution as circumstances require.

The hereditary property is the part that remains after the settlement of all lawful claims against the estate.

The 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 Pastor v. CA, (83). Since a legacy is not a debt of the estate, legatees are among those against whom execution may issue.

Sec. 7. Order of payment if estate insolvent. – If the assets which can be appropriated for the payment of debts are not sufficient for that purpose, the executor or administrator shall pay the debts against the estate, observing the provisions of Articles 1059 and 2239 to 2251 of the Civil Code.

Sec. 8. Dividends to be paid in proportion to claims. – If there are no assets sufficient to pay the credits of any one class of creditors after paying the credits entitled to preference over it, each creditor within such class shall be paid a dividend in proportion to his

claim. No creditor of any one class shall receive any payment until those of the preceding class are paid.

Sec. 9. Estate of insolvent nonresident, how disposed of. – In case administration is taken in the Philippines of the estate of a person who was at the time of his death an inhabitant of another country, and who died insolvent, his estate found in the Philippines shall, as far as practicable, be so disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their respective credits.

Sec. 10. When and how claim proved outside the Philippines against insolvent resident's estate paid. –If it appears to the court having jurisdiction 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 Philippines, and that the executor or administrator in the Philippines had knowledge 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 Philippines so that a just distribution of the whole estate may be made equally among all its creditors according to their respective claims; but the benefit of this and the preceding sections shall not be extended to the creditors in another country if the property of such deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditors, according to their respective claims.

Sec. 11. Order for payment of debts. –Before the expiration 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 executor or administrator for that purpose among the creditors, as the circumstances of the estate require and in accordance with the provisions of this rule.

Sec. 12. Orders relating to payment of debts where appeal is taken. – If an appeal has been taken 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 executor or administrator sufficient assets to pay the claim disputed and appealed. When a disputed claim is finally settled the court having jurisdiction of the estate shall order the same to be paid out of the assets retained to the same extent and in the same proportion with the claims of other creditors.

Sec. 13. When subsequent distribution of assets ordered. – If the whole of the debts are not paid on the first distribution, and if the whole assets are not distributed, or other assets afterwards come to the

hands of the executor or administrator, the court may from time to time make further orders for the distribution of assets.

Sec. 14. Creditors to be paid in accordance with terms of order. – When an order is made for the distribution of assets among the creditors, the executor 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. 15. Time for paying debts and legacies fixed, or extended after notice, within what periods. – On granting letters testamentary or administration the court shall allow to the executor or administrator a time for disposing of the estate and paying the debts and legacies of the deceased, which shall not, in the first instance, exceed one (1) year; but the court may, on application of the executor or administrator and after hearing on such notice of the time and place therefor given to all persons interested as it shall direct, extend the time as the circumstances of the estate require not exceeding six (6) months for a single extension nor so that the whole period allowed to the original executor or administrator shall exceed two (2) years.

Sec. 16. Successor of dead executor or administrator may have time extended on notice within certain period. – When an executor or administrator dies, and a new administrator of the same estate is appointed, the court may extend the time allowed for the payment of the debts or legacies beyond the time allowed to the original executor or administrator, not exceeding six (6) months at a time and not exceeding six (6) months beyond the time which the court might have allowed to such original executor or administrator; and notice shall be given of the time and place for hearing such application, as required in the last preceding section.

Lizarraga v. Abada, 40 Phil 124. The probate court must exert themselves to close the estates within 12 months from the time they are presented, and they may refuse to allow any compensation to executor or administrators who do not actively labor to that end, and may even adopt harsher measures (removal or payment of damages)

Period to be fixed by the court to settle the estate o not exceed 1 year in the first instance, or o not more than 2 years where special circumstances so require,

or o not more than 2 years and a half when the executor or

administrator dies and a new one is appointed. Execution 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 expenses of administration and it is late ascertained that there are such debts and expenses to be paid.

Rule 89 SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT

Section 1. Order of sale of personalty Upon the application of the executor or administrator, and on written notice to the heirs and other persons interested,the court may order the whole or a part of the personal estate to be sold, if it appears necessary for the purpose of paying debts, expenses of administration, or legacies, or for the preservation of the property.

Heirs of Spouses Remedios Sandejas and Eliodoro Sandejas vs. Lina, (01). Although Rule 89 requires court approval for the disposition of the estate of the decedent, judicial approval cannot adversely affect the substantive rights of heirs to dispose of their own pro indiviso shares in the co-heirship or co-ownership. They can sell their rights, interests or participation in the property under administration. A stipulation requiring court approval does not affect the validity and effectivity of the sale. It merely implies that the property may be taken out of custodia legis, but only with the court’s permission.

Section 2. When the court may authorize sale, mortgage, or other encumbrance of realty to pay debts and legacies though personalty not exhaustedWhen the personal estate of the deceases is not sufficient to pay the debts, expenses of administration, and legacies or where the sale of such personal estate may injure 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, expenses and legatees residing in the Philippines, the court on the application of the executor or administrator and on written notice to the heirs, devisees, and legatees, residing in the Philippines, may authorize the executor 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, expenses 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 injury to those interested in the remainder, the authority may be for the sale, mortgage or other encumbrance of the whole of such real estate or so much thereof as is necessary or beneficial under the circumstances.

Section 3. Persons interested may prevent such sale, etc., by giving bondNo 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 fixed by the courts, conditioned to pay the debts, expenses 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 executors or administrator, and may be prosecuted for the benefit of either.

Section 4. When the court may authorize sale of estate as beneficial to interested persons. Disposal of proceeds.When 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 executor or administrator and on written notice to the heirs, devisees, and legatees who are interested in the estate to be sold, authorize the executor or administrator to sell the whole or part of said estate, although not necessary to pay debts, legacies or expenses of administration; but such authority shall not be granted if inconsistent with the provisions of a will.In case of such sale, the proceeds shall be assigned to the persons entitled to the estate in the proper proportions.

¤ Maneclang v. Baun (92). The father or mother is the administrator of the child’s property, but notice to them alone is not sufficient. Notice to counsel or guardian ad litem, however, is sufficient

¤ Under rule 82.4, the authority granted by the court to the former executor or administrator for the sale or mortgage of real estate may be renewed in favor of the new administrator or executor without further notice or hearing.

¤ Pio Barreto Realty Development, Inc. v. CA, (84).The probate court may rescind its order authorizing the administrator to sell realty to a third party and this third party cannot dispute such an order and object to the sale of the property to another party without putting up a bond for the security of creditors as well as the administrator.

¤ Ortaliz v. Registrar of Deeds (30). The reason for this requirement is that all the heirs are the presumptive owners.

Section 5. When the court may authorize sale, mortgage, or other encumbrance of estate to pay debts and legacies in other countries.When the sale of personal estate, or the sale, mortgage, or other encumbrance of real estate is not necessary to pay the debts, expenses of administration, or legacies in the Philippines, 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, expenses of administration, and legacies there, the court here may authorize the executor 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 Phil.

Section 6. When the court may authorize sale, mortgage, or other encumbrance of realty acquired on execution or foreclosure.The court may authorize an executor or administrator to sell, mortgage, or otherwise encumber real estate acquired by him on execution or foreclosure sale, under the same circumstances and under the same regulations prescribed in this rule for sale, mortgage, or other encumbrance of other real estate.

Section 7. Regulations for granting authority to sell, mortgage, or otherwise encumber estate.The court having jurisdiction of the estate of the deceased may authorize the executor 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 executor or administrator shall file a written petition setting forth the debts due from the deceased, the expenses of administration, the legacies, the value of the personal estate, the situation of the estate to be sold, mortgaged, or otherwise encumbered, and such other facts to show that the sale, mortgage, or other encumbrance is necessary or beneficial;

b. the court shall thereupon fix 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 requires it, the executor or administrator shall give

an additional bond, in such sum as the court directs, conditioned that such executor or administrator will account for the proceeds of the sale, mortgage, or other encumbrance.

d. if the requirements in the preceding subdivisions of this section have been complied with the court, by order stating such compliance, may authorize the executor or administrator to sell, mortgage, or otherwise encumber, in proper cases, such part of the estate as deemed necessary, and in case of sale the court may authorize it to be public or private as would be most beneficial to all parties concerned.

The executor or administrator shall be furnished with a certified copy of such order.

e. if the estate is to be sold at auction, the mode of giving notice of the time and place of the sale shall be governed by the provisions concerning notice of execution sale.

f. there shall be recorded in the registry of deeds of the province in which the real estate thus sold, mortgaged, or otherwise encumbered is situated, a certified copy of the order of the court, together with the deed of the executor or administrator for such real estate, which shall be valid as if the deed had been executed by the deceased in his lifetime.

¤ Lao v. Genato, 137 SCRA 85. The administrator occupies a portion of the highest trust. He should act with utmost circumspection to preserve the estate and guard against its dissipation so as not to prejudice its creditors and the heirs. To guarantee faithful compliance with the authority granted, the order of the court makes it an emphatic duty on the part of the administrator to submit to the court for approval transactions made by him.

¤ The regulations apply to both testate and intestate proceedings and are mandatory. The order of sale and the sale made will be void if they are not complied with; such authority may be validly given despite objection of one or more of the heirs.

¤ Actual knowledge of the application for sale may estop the heir or interested party from questioning the sale.

¤ Where a party did not object to the order of the court and participated in the sale, he is estopped from questioning the regularity of the sale.

¤ Sale of land under judicial administration needs approval of the sale by the court to be effective.

¤ Godoy v Orellano. Sale by the administrator which is not authorized by the probate court is null and void and does not pass title to the purchaser.

¤ Estate of Olave v Reyes. When the estate is already subject to a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior probate court approval. Hence, the same court can declare the sale null and void for as long as the proceedings had not been closed.

¤ Acebedo v. Abesamis. The 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 judicial approval (R89.7) cannot adversely affect the substantive rights of the heirs to dispose of their ideal share in the co-heirship and/or co-ownership among the heirs.

Section 8. When the court may authorize conveyance of realty which deceased contracted to convey. Notice. Effect of deed.Where the deceased was in his lifetime under contract, binding in law, to deed real property, or an interest therein, the court having jurisdiction of the estate may, on application for that purpose, authorize the executor or administrator to convey such property according to such contract, or with such modifications as are agreed upon by the parties and approved by the court; and if the contract is to convey real property to the executor or administrator, the clerk of court shall execute the deed.

The deed executed by such executor, administrator, or clerk of courtshall be effectual to convey the property as if executed by the deceased in his lifetime; but no such conveyance shall be authorized until notice of the application for that purpose has been given personally or by mail to all persons interested, and such further notice has been given, by publication or otherwise, as the court deems proper; nor if the assets in the hands of the executor or administrator will thereby be reduced so as to prevent a creditor from receiving his full debt or diminish his

dividend.

Heirs of Spouses Remedios R. Sandejas and Eliodoro Sandejas vs. Lina (01). Rule 89.8 does not prescribe that only the administrator/executor can apply for the approval of a sale of realty under administration. This provision should be differentiated from Sections 2 and 4 specifically requiring only the executor or administrator to file an application to sell, encumber or mortgage real estate. While section 8 does not specify who should file the application, it stands to reason that the proper party must be one who is to be benefited/injured from the judgment or one who is entitled to the avails of the suit.

Pio Barretto Realty Development vs. CA (04). The probate court has authority to determine whether conditions of a particular sale would be beneficial to the estate and this is generally respected. To attack 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. The validity of said order may not be attacked collaterally since the supposed ground for declaring it void for lack of jurisdiction is not apparent on the face thereof. Though 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 9. When the court may authorize conveyance of land which deceased held in trust.Where the deceased in his lifetime held real property in trust for another person, the court may, after notice given as required in the last preceding section, authorize the executor or administrator to deed such property to the person, or his executor or administrator, for whose use and benefit it was so held; and the court may order the execution of such trust, whether created by deed or by law.

Property to be Sold

Purpose Conditions

Personalty Pay debts, expenses of administration, or legacies To preserve the property (§1)

Application of executor or administratorWritten Notice to heirs and other interested persons (§1)

Real Property Pay debts, expenses of administration, or legacies To preserve the property

Personal estate is not sufficient, or Sale of such personal estate may injure the

Application of executor or administratorWritten Notice to heirs and other

Property to be Sold

Purpose Conditions

business or other interests of those interested in the estate, and testator has not otherwise made sufficient provision for such expenses and debts (section 2)

Sale, mortgage, encumbrance will be beneficial to interested persons

interested persons (§2)

Personal or real property

Beneficial to interested persons (§4)

Application of executor or administratorWritten Notice to heirs, devisees and legatees. (§4)

Real property Pay debts and legatees in foreign countries

Sale is not necessary to pay debts and expenses within the Philippines but property in other country is not sufficient to pay debts and expenses in that country (§5)

Same as payment of debts and legacies (§5)

Realty acquired on execution/foreclosure

Same as foregoing sections (§6)

Part III. Distribution and Partition of the Estate

Rule 90 Distribution and Partition of the Estate

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

If 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.

No 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 fixed by the court, conditioned for the payment of said obligations within such time as the court directs.

Sec. 2. Questions as to advancement to be determined. – Questions as to advancement made, or alleged to have been made, by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings; and the final order of the court thereon shall be binding on the person raising the questions and on the heir.

Sec. 3. By whom expenses of partition paid. – If at the time of the distribution the executor or administrator has retained sufficient effects in his hands which may lawfully be applied for the expenses of partition of the properties distributed, such expenses of partition may be paid by such executor or administrator when it appears equitable to the court and not inconsistent with the intention of the testator; otherwise, they shall be paid by the parties in proportion to their respective shares or interest in the premises, and the apportionment shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share, the court may issue an execution in the name of the executor or administrator against the party not paying for the sum assessed.

Luzon Surety v. Quebrar, 127 SCRA 301. Approval of the project of partition does not necessarily terminate the proceedings

PCIB v. Escolin, 56 SCRA 266. Proceedings for the settlement of estate is deemed ready for final closure wheno There 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 “debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate

o Order is usually upon proper and specific application for the purpose of the interested parties

Stages before distribution of the estate o Vera v. Navarro (77).Payment of obligations (liquidation of

estate). Distribution of the estate may be ordered under any of the following circumstances:

o Inheritance tax has been paid, oro Sufficient bond is given to meet the payment of the inheritance tax

and other obligations, or o When the payment of said tax and all other obligations have been

provided foro Declaration of heirs

o The probate court has jurisdiction to determine whether a person is an acknowledge natural child of the decedent, but an adoption decree cannot be assailed in the settlement proceeding

* Uriarte vs. CFI, Negros. A party claiming to be an acknowledged 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 ask for its reopening if it has already been closed, so as to be able to submit for determination the question of his acknowledgment as a natural child of the deceased testator, the court having, in its capacity as a probate court, jurisdiction to declare who are the heirs of the testator and whether or not a particular party is or should be declared his acknowledged natural child.

o A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of administration proceedings and cannot properly be made in an independent action

o A separate action for declaration of heirs is impropero Although the declaration of heirship is made only after the payment

of all the charges against the estate, the probate court is not enjoined from making the declaration prior to the satisfaction of the obligation

o The rules allow the preliminary attachment of the interest of a party in the property belonging to the estate of the decedent by serving the executor/administrator/personal representative of the decedent with a copy of the order and notice that the interest is attached (Rule 57.7f)

o A project of partition is merely a proposal for distribution of the hereditary estate which the court may either accept or reject. The executor is not required to prepare and present the same, but the court may require him to do so.

The probate court does not lose jurisdiction over the estate until after the payment of all the debts and the delivery of the remaining estate to the heirs.

Nature of the Proceeding: IN rem

PSB v. Lantin, (83). A 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. The only instance where a party interested in a probate

proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence imputable to negligence.

o Vda de Alberto v. CA (89). Better practice to secure relief: reopening of the probate proceedings by proper motion within the reglementary period instead of a separate action

o Reyes v. Barreto-Datu (67). Where the court has validly issued a decree of distribution and the same has become final, the validity or invalidity of the project of partition becomes irrelevant.

o May be set aside only if interested party is left out by reason of circumstances beyond his control or mistake or inadvertence not imputable to negligence

o Remedies : motion to reopen within the 30-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 jurisdiction of probate court is exclusive)

o Nondistribution of estate is not a ground for reopening must be motion for execution or if beyond the reglementary period, separate action for recovery of shares is proper

Interference of a co-equal court with a probate court prohibited avoids confusion and conflict

Issuance of writ of executiono General Rule: Cannot issue, since administrator satisfies the

court order adjudicating claims without such writo ONLY Exceptions : To satisfy contributive share of heirs in

possession of the decedent’s assets (R88.6)o To enforce payment of expenses of partition (R90.3)o To satisfy costs when a person is cited for examination in

probate proceedings. (R142.13)

Comparison of jurisprudenceGuilas v. CFI Solivio v. CA

Allowed continuation of separate action to annul project of partition

Disallowed separate action

Moved for partial delivery of lots in her favor pursuant to project of partition

Filed separate actions, instead of filing a motion in same case

Estate proceedings closed and terminated for over three years

Proceedings were still pending

Sec. 4. Recording the order of partition of estate. –Certified copies of final orders and judgments of the court relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the province where the property is situated.

RULE 91 ESCHEATS  Sec. 1. When and by whom petition filed. –

When a person dies intestate, seized of real or personal property in the Philippines, leaving no heir or person by law entitled to the same, the Solicitor General or his representative in behalf of the Republic of the Philippines, may file a petition in the Court of First Instance of the province where the deceased last resided or in which he had estate, if he resided out of the Philippines, setting forth the facts, and praying that the estate of the deceased be declared escheated.

Escheat is a proceeding whereby the real and personal property of a deceased person in the Philippines, without leaving any will or legal heirs, become property of the State upon his death

It is an incident or attribute of sovereignty Rests on the principle of ultimate ownership by the state of all property within

its jurisdiction A substantial right of the state, not charity or gratuity or unearned benefit Any person alleging to a direct right or interest may oppose Republic v. CA (88). A depositary bank should be joined as respondent

( Act 3936, Section 3 Law on Forfeiture of Dormant Bank Deposits) Jurisdiction in proceedings in escheat cannot be converted into settlement of

the estate; proper petitions must be filed

Sec. 2. Order for hearing. –

If the petition is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, which date shall be not more than six (6) months after the entry of the order, and shall direct that a copy of the order be published before the hearing at least once a week for six (6) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best.

General rule : MTD not allowed by ROC on escheat Republic v. PNB, (61). However, there is no procedural reason which

prevents MTD 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

Municipal Council of San Pedro v. Colegio de San Jose. MTD plays the role of a demurrer, enabling the court to resolve the legal questions raised therein

Sec. 3. Hearing and judgment. –

Upon the satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the person died intestate, seized of real or personal property in the Philippines, leaving no heir or person entitled to the same, and no sufficient cause being shown to the contrary, the court shall adjudge that the estate of the deceased in the Philippines, after the payment of just 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 Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, 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. 

The 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.

Judgement of escheat conclusive upon all persons notified by advertisement Lack of dishonest intent on the part of the State to constitutes due process,

proper notice having been observed Burden of proof rests on State to prove the property is liable in all respects to

escheat prove decedent died: 1st, intestate; 2nd,without heirs; 3rd, seized of the property in question.

Roman Catholic Archbishop v. Monte de Piedad, 68 Phil. 1. Right to escheat may be waived, expressly or impliedly e.g. right existed prior to registration proceedings, and such right not asserted in said proceedings

Sec. 4. When and by whom claim to estate filed. –

If a devisee, legatee, heir, widow, widower or other person entitled to such estate appears and files a claim thereto with the court within five (5) years from the date of such judgment, 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.

Divino v. Municipality of Guianga, 62 Phil. 926. Noncompliance with jurisdictional requirements render a court without jurisdiction to grant a remedy enabling an heir to appear from the date the decree of escheat and file a claim to the estate

PART IV.

GUARDIANSHIP GENERAL PRINCIPLES

Definitions Guardianship may be viewed either as a power or a relation

Sec. 5. Other actions for escheat. – Until otherwise provided by law, actions for reversion or escheat of properties alienated in violation of the Constitution or of any statute shall be governed by this rule, except that the action shall be instituted in the province where the land lies in whole or in part.

o It is power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other infirmity, renders him unable to protect himself.

o It is a relation subsisting between the guardian and the ward. o Involves the taking possession of and management of, the estate of another

unable to act for himself Guardian: person entrusted with the custody and control of the person and/or estate of

a minor, insane or other person incapable of managing his own affairsNature of Guardianship

Sacred in character. It is designed to further the ward’s well-being and to preserve his property. While custody involves immediate care and control, guardianship includes

responsibilities of loco parentis as well. Basis of Guardianship: Parens Patriae, (Nery v. Lorenzo, (72))

Duty of the state to protect the rights of persons/individuals who because of age/incapacity are in an unfavorable position vis-à-vis other parties.

Parens patriae is inherent in the supreme power of the state This is a most beneficent function and often necessary to be exercised in the interest of

humanity and for the prevention of injury to those who cannot protect themselves. Necessity of guardianship proceedings

Gorostiaga v. Sarte, 68 Phil 4.Jurisdiction 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.

Purpose of Guardianship to safeguard the right and interests of minors and incompetent persons

Kinds of Guardians according to scope/extent

o guardian over the persono Guardian of the property o General Guardians – custody and care of the person and of all the property of the

ward According to constitution

o Legal – those deemed as guardian without need of court appointment (see Art 225)

o Guardian ad litem – appointed by the courts of justice to prosecute or defend a minor, insane or person declared to be incompetent, in an action in court.

o Judicial – appointed by the court in pursuance to law, as guardian for insane persons, prodigals, minor heirs or deceased war veterans and other incompetent persons.

RULE 92 VENUEIn view of the Rule on Guardianship of Minors, the following rules should be limited in application to the Guardianship of incompetents.

Basis for the separate rule on Guardianship of Minors [ see APPENDIX “A” FOR TEXT]

Art XV,§5 – 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. Exploitation and other conditions prejudicial to their development.

Nery vs. Lorenzo - where minors are involved, the state acts as parens patriae. PD 603, Art 3, Par. 8 provides that every child has the right to be protection against

exploitation, improper influences, hazards, and other conditions of circumstances prejudicial to his physical, mental, emotional, moral and social development.

Section 1. 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 exceeds the jurisdiction of the justice of the peace or municipal court, the proceedings shall be instituted in the Court of First Instance.

[In the City of Manila, the proceedings shall be instituted in the Juvenile and Domestic Relations Court. ]

The venue of guardianship proceedings is primarily the place of residence of the minor/ incompetent in the Philippines.

When the minor/incompetent is a non-resident, the petition for guardianship may be filed in the RTC of the place where the property of the minor/incompetent is situated.

This is because the powers of a guardian may be exercised only in the state under whose laws they were conferred.

Residence = domicile Under the Family Courts Act (RA 8369), the Family courts is vested with exclusive

original jurisdiction over petitions for guardianship, custody of children, and habeas corpus in relation to the latter.

Section 2. Meaning of word "incompetent." – Under this rule, the word "incompetent" includes

persons suffering the penalty of civil interdiction or who are hospitalized 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, weak

mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation.

Civil Interdiction – 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.

Prodigality – synonymous with spendthrift or a person who by excessive drinking, gaming, idleness or debauchery of any kind shall so spend, waste or lessen his estate as to expose himself or his family to want or suffering or expose the town to charge or expense for the support of himself or his family; the prodigal must show a morbid mind and a disposition to waste the estate (Martinez v. Martinez, 1 Phil 182).

o Quantum of evidence = competent evidence demonstrating necessary facts and the evidence must be clear and definite(Yangco v. CFI, 29 Phil. 183).

Insanity – Every adult is presumed sane. However, where the question 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.

Section 3. Transfer of venue. – The court taking cognizance of a guardianship proceeding, may transfer the same to the court of another province or municipality wherein the ward has acquired real property, if he has transferred thereto his bona-fide residence, and the latter court shall have full jurisdiction to continue the proceedings, without requiring payment of additional court fees.

Purpose of Authorizing Change of Venue: To afford convenience to the ward; such change is therefore within the exclusive discretion of the court.

Limitations on the Transfer of Venue: The 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.

A Branch of the Same Court Cannot be Permitted to Assert its Jurisdiction in Disregard of the Orders of Another Branch

RULE 93 GENERAL GUARDIANS AND GUARDIANSHIP: APPOINTMENT OF GUARDIANS

Section 1. Who may petition for appointment of guardian for resident. – Any 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. An officer of the Federal Administration of the United States in the Philippines may also file a petition in favor of a ward thereof, and the Director of Health, in favor of an insane person who should be hospitalized, or in favor of an isolated leper.

Provisions of the Family Code on Guardians

Art. 222. The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the child so requires. (317)

Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The 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.

However, 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 just and proper. (318a)

Art. 224. The 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.

The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper.

Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise.

The 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. (321a, 323a)

Art. 227. If 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. The 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. In any case, the proceeds thus give in whole or in part shall not be charged to the child's legitime. (322a)

Law on Parental Authority Joint parental authority is exercised by the father and the mother. In case of

disagreement, the father’s decision shall prevail. Grandparents shall be consulted on important matters but they shall not interfere in the

exercise of parental authority by the parents (Art. 18, RA 9262) In the absence or death of parents, the grandparents, and in their default, the oldest

sibling who is at least 18 years old or the relative who has actual custody shall exercise parental authority unless a guardian has been appointed. (Art 19, RA 9262)

Art.225, FC does not make 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

o But, if the market value of the property or annual income > P50K, the parent concerned shall post a bond with the court to guarantee the performance of his/her obligation (incorporated in §16)

Incompetence of Guardian v Incompetence of Person Under Guardianship A person who is incompetent to act as an executor/administrator does not necessarily

need to be placed under guardianship. But if a person is incompetent to act as executor or administrator, then he is not the incompetent person envisaged in the law of guardianship. (Lopez Vda. De Baluyot vs. Ines-Luciano (76))

Grounds of petition in case of a minor (see Appendix “A”

Section 2. Contents of petition. – A petition for the appointment of a general guardian must show, so far as known to the petitioner:

(a) The jurisdictional facts; (b) The minority or incompetency rendering the appointment necessary or convenient; (c) The names, ages, and residences of the relatives of the minor or incompetent, and of the persons having him in their care; (d) The probable value and character of his estate; (e) The name of the person for whom letters of guardianship are prayed.

The petition shall be verified; but no defect in the petition or verification shall render void the issuance of letters of guardianship.

Jurisdictional Factsa. minority/incompetency of person to be placed under guardianship (see Appendix A

for minority)b. his domicile

The actual existence of a ward is a jurisdictional fact. A person who is of full age and sui juris cannot be placed under guardianship, either of another person or of the court, nor can he make himself a ward of the court.

When Certain Jurisdictional Facts may be Dispensed With Uy Ponce v. Ponce (55). While allegations as to the names, ages and residences of a

minor’s relatives is jurisdictional, the same may not be necessary where the petition was filed by the minor’s relatives themselves.

Under the rules on guardianship of minors, the phrase “within the 4 th civil degree” was inserted in §7e to put a limit to the number of relatives who shall be notified.

Correction of a Minor’s Name may be made by motion.

Sufficiency of Verification

No 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 the Petition, under the FC and the RoC, does not render the issuance of letters of guardianship void.

Section 3. Court to set time for hearing; Notice thereof. – When a petition for the appointment of a general guardian is filed, the court shall fix 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 14 years of age or the incompetent himself, and may direct other general or special notice thereof to be given.

Notice of application and hearing shall be served by the court on (1) the persons mentioned in the petition residing in the Philippines and (2) the minor himself if above 14/ the incompetent himself.

Notice as a Jurisdictional Requirement Notice is normally essential in order to confer jurisdiction on the court where a petition

for guardianship is filed, over the person of the minor/incompetent. It has been held that lack of notice renders the appointment of a guardian void and subject to collateral attack.

Section 4. Opposition to petition. – Any 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.

Grounds for filing an opposition Opposition must be in writing but need not be verified. Who may file: Any person interested in the person/property of the ward; However, a

creditor and mortgagee may not be appointed a minor’s guardian as no man can serve two masters.

Grounds:a. majority of alleged minorb. competency of alleged incompetentc. incompetency of person for whom letters are prayed

The oppositor may pray for dismissal of petition or that letters be issued to him or another suitable person.

With respect to minors, the grounds stated in this section is not exhaustive since guardianship may also be opposed on the ground of non-termination of the parental authority of the parents of the minor.

“Among others” is added to §10 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.

Garchitorena v. Sotelo, 74 Phil. 25. If 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. No man can serve two masters.

At what stage of the proceedings an opposition may be filed Though 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.

Section 5. Hearing and order for letters to issue. – At the hearing of the petition the alleged incompetent must be present if able to attend, and it must be shown that the required notice has been given. Thereupon the court shall hear the evidence of the parties in support of their respective allegations, and, if the person in question 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.

Issuance of letters discretionary on the court

Issuance of letters during pendency of an appeal (Francisco v. CA, (84)). As the primary objective for appointment of a guardian is

protection of the ward, execution pending appeal for urgent and compelling reasons is a matter within the sound discretion of the TC and the appellate court will not interfere unless there has been grave abuse.

Quantum of evidence required for issuance of letters Competent evidence which is clear and definite, demonstrating the facts necessary to

sustain the order

Contents of the order The order issuing letters of guardianship must be sufficient in form and substance and

statutory requirements as to contents must e complied with. The order must identify the ward, but the ward need not be named if he is otherwise

sufficiently identified.

Considerations in the appointment of a guardian (Francisco v. CA, (84)) The court may consider the financial situation, the physical condition and sound

judgment, prudence and trustworthiness, the morals, character and conduct, and the present and past history of a prospective appointee as well as the probability of his being able to exercise the powers and duties of a guardian for the full period during which guardianship will be necessary.

A guardian may be removed if he becomes insane, or otherwise incapable or unsuitable, or has wasted the estate or failed to make return or render an account 30 days from the due date.

The best interests of a ward can override procedural rules and even the rights of parents to the custody of their children.

Order of preference in appointment of guardian The Rules on guardianship do not contain any order or preference in the appointment of

guardians, not like the matter of who will be administrator for the settlement or distribution of the estate.

Finality of the appointment The execution of the final judgment or order shall issue as a matter of right only upon

the expiration of the period to appeal therefrom if no appeal has been duly perfected.

Section 6. When and how guardian for nonresident appointed; Notice. –

When a person liable to be put under guardianship resides without the Philippines but has estate therein, any relative or friend of such person, or any one interested in his estate, in expectancy or otherwise, may petition a court having jurisdiction 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.

Ancillary guardianship 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)

Jurisdiction of the court over non-residents A court of a state in which an incompetent has property may appoint a guardian to

ward’s estate; jurisdiction may be acquired through publication. Proceeding to declare a person insane is in personam, therefore personal service is

necessary. Personal service is also necessary when alleged incompetent is a resident who is

temporarily abroad. In such a case, publication alone is insufficient.

Preference in appointment 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.

Section 7. Parents as guardians. – When 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. When the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the child's property, with the duties and obligations of guardians under these rules, and shall file the petition required by section 2 thereof. For good reasons the court may, however, appoint another suitable person.

This provision has been deemed modified by the RULE ON GUARDIANSHIP OF MINORS (See Appendix “A” for the text)

Provisions of the Family Code

Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved. The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. (320a)

Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties:

(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; (2) To give them love and affection, advice and counsel, companionship and understanding;

(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; (4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; (5) To represent them in all matters affecting their interests; (6) To demand from them respect and obedience; (7) To impose discipline on them as may be required under the circumstances; and (8) To perform such other duties as are imposed by law upon parents and guardians. (316a)

Natural guardian cannot dispose of the property of the child A parent does not have the power to dispose of or encumber the property of his child.

Any disposition made by the parent is null and void. Only a judicial guardian may dispose of his ward’s property and only with prior court approval.

The new rule on the guardianship of minors will be suppletory to the FC on guardianship if the father and mother jointly exercise legal guardianship over the property of their unemancipated common child.

The Rules on guardianship of minors will apply when o Child is under substitute parental authority o Guardian is a stranger, or a parent who has remarried.

Remedy against a guardian who disposed of the property Vendees prejudiced by the illegal transactions of a natural guardian involving the

property of a minor have no cause of action against subsequent legal owners, only against a natural guardian but only to recover damages (Valencia v. Lagdameo)

Qualifications of Guardians of minors The ROC does not have a provision on the qualifications which the court may consider

in appointing a guardian. The Rules on guardianship of minors contain a provision stating the qualifications of

guardians (§5). These were taken mainly from Francisco vs. CA.o Financial condition (c)o Physical condition (b) o Sound judgment, prudence and trustworthiness (g)o Morals (a)o Character and conduct (b) o Present and pass history of the prospective appointee o Probability of his being able to exercise the powers and duties of the

guardian The committee added: relationship of trust with the minor, and his lack of conflict of

interest with the minor.

Section 8. Service of judgment. – 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.

Article 409 (CC): In cases of legal separation, adoption, naturalization and other judicial orders mentioned in the preceding article, it shall be the duty of the Clerk of Court 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.

Under 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 judgment appointing a guardian of a minor. (§13)

The annotation of the judgment/order on the title will serve as a notice to third persons dealing with the property of the existence of the guardianship and the limited authority of the guardian.

RULE 94 BONDS OF GUARDIANS

SECTION 1. Bond to be given before issuance of letters. Amount. Conditions.—Before a guardian appointed enters upon the execution of his trust, or letters of guardianship issue, he shall give a bond, in such sum as the court directs, conditioned as follows:

(a) To make and return to the court, within three (3) months, a true and complete inventory of all the estate, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him;(b) To faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward;(c) To render a true and just 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 expiration 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) To perform all orders of the court by him to be performed.

BOND Purpose

a. To 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. To serve as security to those interested in the property settlement of the estate. Necessity – a guardian cannot take possession of and control the property of his

ward unless he has given the bond for the faithful performance of his duties. Amount – fixed by the court with reference to the ward’s estate When bond takes 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.Whenever it is deemed necessary, the court may require a new bond to 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 injury can result therefrom to those interested in the estate.

Additional Bond Discretionary – court may allow additional security when it seems proper for the

protection of the ward’s estate. Required – when first bond was insufficient, it is the duty of the court to require

additional bond.

SEC. 3. Bonds to be filed. Actions thereon.Every bond given by a guardian shall be filed in the office of the clerk 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.

Bonds 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.

Sureties- Liability of the sureties must depend upon the extent of the obligation

created by the terms of the bond and the statutes which can be read into it.- duration of liability is a continuing one against the obligors and their

estates until all of its conditions are fulfilled. (Guerrero v. Teran, 13 Phil. 212)

- When judgment is entered against the sureties, they may demand the benefit of a levy of the principal’s property, the amount of which must be sufficient to satisfy the debt.

- It is the duty of the sureties to see that the conditions on the guardian’s bond are fulfilled by the guardian.

RULE 95 SELLING AND ENCUMBERING PROPERTY OF WARD

SECTION 1. Petition of guardian for leave to sell or encumber estate.When the income of an estate under guardianship is insufficient to maintain the ward and his family, or [to 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 authorizing the sale or encumbrance.* modified by Rule on Guardianship of Minors

A guardian may sell or encumber the estate of the ward when:a. the income of an estate under guardianship is insufficient to maintain the ward and

his familyb. 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 grounds enumerated in this section are exclusive. No order will be issued for another purpose not found in this rule. Sale of the ward’s realty without court order is void. (Inton v. Quintana, 81 Phil 97)

SEC. 2. Order to show cause thereupon.If it seems probable that such sale or encumbrance is necessary, or would be beneficial to the ward, the court shall make an order directing the next of kin 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.

Next of kin – include those relatives who share in the estate according to the statute of distribution, including those claiming per stripes or by representation. (Zabate v. Ponce, 97 Phil 1006)

o Lope v. Teodoro. Only the children have an interest in the land of their father, besides the creditors, and only they or the creditor who may have been prejudiced by the sale have a right to object thereto.

Notice may not be dispensed with except where the next of kin and all persons interested in the estate are her mother and guardian, uncles and aunts who agreed to make the transfer of their respective shares in the property to the corporation to be organized. (Singco v. Longa, 51 Phil 507; Pardo de Tavera v. El Hogar Filipino Inc., 98 Phil 481)

SEC. 3. Hearing on return of order. Costs.At the time and place designated in the order to show cause, the court shall hear the proofs and allegations of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or refuse the prayer of the petition as the best interests of the ward require. The court shall make such order as to costs of the hearing as may be just.

Whether it is to the interest of the ward that the sale shall be made – the sole object of the inquiry in an application to sell

The court should ascertain and determine whether grounds for selling exist and should select the part or parts of the property which can be disposed of.

SEC. 4. Contents of order for sale or encumbrance, and how long effective. Bond.If, after full examination, 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 expended 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 require. The 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, subject to such conditions as to the time and manner of payment, and security where a part of the payment is deferred, as in the discretion of the court are deemed most beneficial to the ward. The original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale, but the judge may, if deemed expedient, require an additional bond as a condition for the granting of the order of sale. No 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.

For the ward’s title to pass to the purchaser, the sale must first be confirmed by the court. Until such confirmation, not even equitable title passes to the purchaser.

o - except: authority to sell does not impose the necessity of confirmation by 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.

Confirmation may not be necessary where the court’s order expressly authorized the guardian to execute and deliver to the purchaser definitely named, a deed of conveyance to a parcel of land specifically described at a price already fixed 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 judicial go-ahead signal to reduce the agreement to the statutory form.

The guardian cannot acquire by purchase even at a public or judicial auction, the property of his ward. (Art. 1491 CC)

When authority to sell was obtained under suspicious circumstances indicative of fraud and collusion, the guardian’s sale may subsequently be annulled by the court. (Mendoza v. Labrador, 69 Phil 398) – However, the cancellation of the guardian’s authority to sell will not and could not affect the rights of the buyer in such a case. (Margate v. Rabacal)

Sale of a ward’s estate cannot be attacked collaterally in the registration proceedings. A separate action to avoid or rescind the sale should be filed instead.

The guardian’s authority to sell shall be not be effective for more than one year after it has been granted.

Lopez v. Teodoro (50). Appeal is the proper remedy against an order of the court authorizing the sale of the ward’s property.

With the enactment of the Family code, the property of the minor is no longer liable for the maintenance of the Family.

Under Art 226, the property of the child is to be devoted exclusively for his support and education, unless the title or transfer provides otherwise. The 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.

FC has effectively abolished parental usufruct over the child’s property and income (§22)

SEC. 5. Court may order investment of proceeds and direct management of estate.The court may authorize and require 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 make such other orders for the management, investment, and disposition of the estate and effects, as circumstances may require.

This section, while requiring judicial authority in order that a guardian may invest the ward’s money, does not provide that said authority must always be either prior to or expressed.

Philippine Trust Co. v. Ballesteros, 98 Phil 1007. This rule seeks to protect the funds of the ward against imprudent or unsafe investments by the guardian.

It is the guardian’s duty to apply the proceeds to the purposes for which the land was sold.

Stegner & Philippine Trust Co. v. Stegner, 102 Phil 131. The court’s approval of the annual inventories and accounts submitted by the guardian, with the conformity and/or acquiescence of the mother of the minors, wherein the questioned investment was mentioned and accounted for amounts to a ratification of the acts of the guardian and compliance with the provisions of this rule.

RULE 96 GENERAL POWERS AND DUTIES OF GUARDIANS Sec. 1. To what guardianship shall extend. A 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. The guardian of the estate of a nonresident shall have the management of all the estate of the ward within the Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship.

NOTES AND CASES:Extent of Guardianship

The 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 expense must necessarily follow

However, a separate guardian of the person and of the estate may be appointed by the court, for a person may be competent to discharge certain duties and incompetent to discharge others.

Thus, a widow mother may be competent guardian for the person of her minor children but because of her want of business experience is incompetent to manage the minor’s estate (Lawrence v. Thomas)

Right to Custody The 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 guardianPower of the Court over the Custody of the Ward

Right of guardian to the custody of the ward is NOT absolute; it is subject to control by the court

The controlling consideration in the matter of custody as in the matter of selecting the guardian, is the best interest of the child

Support and Custody of the Ward The 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.

The duty of the ordinary guardian extends only to proper and suitable application of the means of the ward.

Subject 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

In the execution of his inherent duty to maintain and protect the infant ward, the guardian needs no court order

Money 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

Guardian’s control over Ward’s Estate A lawfully appointed guardian of the estate has a general authority over the property

and affairs of his ward The guardian is a trustee, and persons dealing with him are bound to know his

powers and duties and the rules by which he is governed Question’s of Title to Property in the Hands of the Guardian

The court in the guardianship proceeding is concerned solely with the ward’s care and custody and proper administration of his properties, thus conflicts regarding title to property in the hands of the guardian should be litigated in a separate proceeding

Guardian Ad Litem (GAL) A GAL is any competent person appointed by the court for purposes of a particular

action or proceeding involving a minor Lim Siok Huey v. Lapiz (58). One who has been appointed a GAL by the court for

minor heirs is not acting in the capacity of a negotiorum gestor and must have some express authority from the person he purports to represent

Sec. 2. Guardian to pay debts of ward.Every guardian must pay the ward's just 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 CASES: Prohibition on Taking Ward’s Property without court approval

Fernandez v. Bello (60). Property and effects of the ward are under the control of the court and may not be taken or expended without the latter’s permission

Lawful Possession of the Ward’s Estate Viloria v. Administrator of Veteran Affairs (57). Guardian is the lawful possessor

of monies and properties received by him for and on behalf of the ward.

Sec. 3. Guardian to settle accounts, collect debts, and appear in actions for ward. A 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 just 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:Power of the Guardian to receive money due to the ward

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

Collection 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

Liability of the Guardian for Failure to Collect If negligence is attendant, the guardian will be liable for the assets lost thereby,

which may have been collected had he been diligent He is not liable if he acts in good faith and in the exercise of reasonable diligence

Bringing Suits by Guardian Under R3 S5, ROC, 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 GAL appointed by the court

Thus, 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 next friend

Authority of the Guardian to Compromise for Ward Guardian has authority to compromise a claim existing in favor of the ward BUT prior approval of the Court for a compromise by the guardian should be first

secured. Without such approval, the action by the guardian remains open for challenge

Compromise by GAL General rule: GAL has no authority to act or bind the minor in any transaction with

regard to his estate EXCEPT: with court approval (Santo Domingo v. Santo Domingo, 103 Phil 73).

Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward.A 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 authorized by order so to do, and apply so much of the proceeds as may be necessary to such maintenance.

NOTES AND CASES:Duty of the Guardian to Manage the estate frugally

Guardian must manage the ward’s property frugally and without wastePersonal Management of the Estate

Guardian must give his personal care and attention to the maintenance of the ward’s estate and to keep the funds and property of the ward under his own control

Zubeldia v. Hermanos, 70 Phil 419. If 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.

Degree of Care to be Observed by the Guardian Guardian must be faithful, vigilant and competent in the management of the estate of

the ward

He is bound to exercise 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 exercise such prudence and diligence

However, he is not an insurer or required to exercise 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 judgment

Sec. 5. Guardian may be authorized to join in partition proceedings after hearing.The court may authorize the guardian to join in an assent to a partition of real or personal estate held by the ward jointly 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.

NOTES AND CASES:

Guardian may join Partition Proceedings Requirements: (a) such permission or authorization 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) authorization is granted only after a careful investigation as to the necessity and propriety of the proposed action

Amicable settlement Partition may be judicial or amicable

When Parents may Represent Ward in Partition When 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 (Art. 165, CC)

Sec. 6. Proceedings when person suspected of embezzling or concealing property of ward. – Upon 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 embezzled, 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 examination touching such money, goods, interest, or instrument, and make such orders as will secure the estate against such embezzlement, concealment or conveyance.

NOTES AND CASES:

Purpose of the Rule Cui v. Piccio, 97 Phil 712. To secure evidence from persons suspected of

embezzling, 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

Court cannot order the Delivery of the Ward’s Property Where title of any property said to be embezzled, concealed or conveyed is in

question, the determination of said right, must be determined in a separate action and not in guardianship proceedings

GENERAL rule: The court in the separate action has the power to order the delivery of the ward’s property found to be embezzled, concealed and conveyed and the court in guardianship proceedings has jurisdiction only to cite persons suspected of having embezzled, concealed or conveyed property belonging to the ward for the purpose of obtaining information which may be used in the separate action

EXCEPT: in extreme cases where property clearly belongs to the ward or where his title thereto has been already decided

Sec. 7. Inventories and accounts of guardians, and appraisement of estates. – A guardian must render to the court an inventory of the estate of his ward within three (3) 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. All the estate of the ward described in the first inventory shall be appraised. In the appraisement the court may request the assistance of one or more of the inheritance tax appraisers. And whenever any property of the ward not included in an inventory already rendered is discovered, or succeeded to, or acquired by the ward, like proceedings shall be had for securing an inventory and appraisement thereof within three (3) months after such discovery, succession, or acquisition.

NOTES AND CASES:Duty of the Guardian to Submit Inventory

Filing of the inventory is required for it will constitute the basis of subsequent accountings and settlements

Failure of the Guardian to Include a Property of the Ward Any interested person may file a petition before the court to compel the guardian to

include such additional property in the inventory

Correctness of the Guardian’s Report 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. 8. When guardian's accounts presented for settlement. – Expenses and compensation allowed. Upon the expiration of a year from the time of his appointment, and as often thereafter as may be required, a guardian must present his account to the court for settlement and allowance. In the settlement of the account, the guardian, other than a parent, shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and also such compensation for his services as the court deems just, not exceeding fifteen per centum of the net income of the ward. NOTES AND CASES:

Necessity for Accounting Safety of the Guardian, the requirement 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 required to render an account and is not entitled to credit expenditures until he has filed an account showing its terms.

Sufficiency of Account and Settlement Accounts 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 make a clear showing

It should be rendered under oath

Penalty for Failure to Render Accounts Doronila v. Lopez, 3 Phil 360. 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

Expenses Permitted and Allowances granted to the Guardian Guardian is entitled to compensation for his services rendered with the authority of

the Court

Ramos v. PNB, (57). Extra allowance may be made in each case as the importance and difficulty of the management of the estate may require.

When Guardian may be denied compensation Failure 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.

EXCPET: he managed the estate in good faith and neglect to file an account has not operated to the injury of the ward; but the matter rests solely on the discretion of the Court

Distinguished from Compensation to Executor or Administrator

Executor/Administrator GuardianP4.00/day or a commission on the value of such estate as has come to the possession of the executor/administrator and had been disposed by him in payment of debts, etc, or in any amount that the court may deem just

Not more than 15% of the net income of the ward

Guardian of the Person entitled to Compensation 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 (Ramos v. PNB)

RULE 97 TERMINATION OF GUARDIANSHIP Sec. 1. Petition that competency of ward be adjudged, and proceedings thereupon. A person who has been declared incompetent for any reason, or his guardian, relative, or friend, may petition the court to have his present competency judicially determined. The petition shall be verified by oath, and shall state that such person is then competent. Upon receiving the petition, the court shall fix a time for hearing the questions raised thereby, and cause reasonable notice thereof to be given to the guardian of the person, so declared incompetent, and to the ward. On 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 examined by the parties or by the court on its own motion. If it be found that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall cease.

NOTES AND CASES:

Temporary nature of Guardianship Celis v. Cafuir, 86 Phil 554. Guardianship terminates when minority has passed or

incapacity has ceased

Who may file petition Person previously declared incompetent, guardian, relative or friend

Grounds for Termination death of guardian or ward marriage [ or voluntary emancipation] Civil Code – guardianship over the property remains, only guardianship over the

person is terminated Family Code – guardianship over property and person are terminated

Adjudgment of Competency

Nature of Proceeding for Restoration of Capacity of Removal of Guardian A continuation of the original guardianship proceeding; neither new nor independent

Content of Petition Verified and must state that such person is competent

Notice of Hearing of Petition (In Re: Guardianship of Incompetent Jose de Inchausti, 40 Phil 682)

Not intended as a personal service process in the sense necessary to give jurisdiction over the ward or to the cause and other parties

Required merely as assurance that the individual chiefly concerned shall have cognizance of what is being done

Opposition On or before the hearing of the petition, the guardian, relatives of the ward and in the

discretion of the Court, any other person may contest the right to relief demanded

Sec. 2. When guardian removed or allowed to resign; New appointment. When a guardian becomes insane or otherwise incapable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, of failed for thirty (30) days after it is due to render an account or make a return, the court may, upon 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. A 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 CASES:

Grounds for Removal within the Discretion of the Guardianship Court Enumeration is exclusive; guardian cannot be removed from office for causes other

than those enumerated Padilla v. PNB (61). Removal can be deemed discretionary to the extent that the

court uses its discretion in appraising whether a person is unsuitable or incapable of discharging his trust

Feliciano v. Camhort, 22 Phil 235. A large discretion must be allowed the judge who deals directly with the parties, and who, for this reason, should be exceptionally well-qualified to form a correct opinion as to the special needs of the minors, the character and qualification 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.

Mismanagement of the Ward’s Estate If 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.

Circumstances regarded as neglect or misconduct:i. (a). extravagant expendituresii. (b) conversion of the ward’s property to his own useiii. (c) use of the ward’s funds for the benefit of the guardianiv. (d) commingling of funds of the ward with his ownv. (e) speculating with or improperly investing funds of the ward

although the guardian has acted in good faith and from the best of motives

vi. (f) ignorance or imprudence of the guardian whereby the ward’s interest suffers

vii. (g) Converting real estate into personality without order of the Court (Manotoc v. Smith)

Conflict of Interests

Immoral conduct Case of immorality or impropriety must be a very strong one in order to justify

removal of a natural guardian Thus, where a mother, acting as a guardian is married to a man addicted to using

profanity toward her and the children, it did not justify her removal

Defaults on Inventories, Reports and Accounts A guardian may be removed if he fails for 30 days after it is due to render an account

or make return, on reasonable notice to the guardian

Resignation by the Guardian 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 the court

Partial Removal of Guardianship Where the interest of the infant so requires, the guardian may be retained as

guardian of the person although removed as guardian of the estate

Remedy of Guardian from Order of Removal Olarte v. Enriquez, (60). Order removing a guardian is an order constituting a final

determination of his rights and consequently said guardian may APPEAL

Sec. 3. Other termination of guardianship. The 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 borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian. The guardian of any person may be discharged by the court when it appears, upon the application of the ward or otherwise, that the guardianship is no longer necessary.

Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of twenty-one years.

Art. 236. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save exceptions established by existing laws in special cases.

Contracting marriage shall require parental consent until the age of 21. Nothing in this Code shall be construed to derogate from the duty or responsibility of

parents and guardians for children and wards below 21 years of age mentioned in the second and third paragraphs of Article 2180 of the Civil Code

Under the rules on guardianship of minors, §25, there is only one ground for termination of guardianship – emancipation or death of ward

*Voluntary emancipation under the amendments introduced by RA 6809, is no longer recognized as a ground for the termination of parental authority or guardianship

Sec. 4. Record to be kept by the justice of the peace or municipal judge. – When a justice of the peace or municipal court takes cognizance of the proceedings in pursuance of the provisions of these rules, the record of the proceedings shall be kept as in the court of first instance.

Sec. 5. Service of judgment.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.

PART V. OTHER SPECIAL PROCEEDINGS

RULE 98 - TRUSTEES

SECTION 1. Where trustee appointed.A trustee necessary to carry into effect the provisions of a will or written instrument shall be appointed by the Regional Trial Court in which the will was allowed, if it be a will allowed in the Philippines, otherwise by the Regional Trial Court of the province in which the property, or some portion thereof, affected by the trust is situated.

NOTES1. Who appoints the trustee

a. If the will was allowed within the Philippines:- RTC in which the will was allowed

b. If the Will was allowed without the Philippines (in other cases):- RTC in which the property, or some portion thereof, affected by the trust is situated.

2. Who May File Petition for Appointment of Trustee- The executor or administrator or the person appointed as trustee under the will or written instrument

3. Discretion of the Court in the Appointment of a Trustee - Tiangco v. Francisco, 68 Phil 639. The Power to appoint a trustee is

discretionary with the court and the appellate court will decline to interfere except in cases of clear abuse. Thereafter, upon proper showing that the interest of justice would be adequately served with the removal of the incumbent trustees, it is likewise 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 exercise of that discretion.

SEC. 2. Appointment and the powers of trustee under will, Executor of former trustee need not administer trust. If a testator has omitted in his will to appoint a trustee in the Philippines, and if such appointment is necessary to carry into effect the provisions of a will, the proper Regional Trial Court 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 by the testator. No person succeeding to a trust as executor or administrator of a former trustee shall be required to accept such trust.

NOTES:

1. Exercise the Sound Judgment by the Court in the Appointment of a TrusteeLorenzo v. Posadas. Although the will does not name a trustee, the probate court exercises sound judgment in appointing a trustee to carry into effect the provisions of the will where a trust is actually created by the will by the provision thatcertain of the property shall be kept together undisposed during a fixed periodfor a stated purpose.

2. Notice and Consent of Beneficiary Not Essential for Creation of Trust

SEC. 3. Appointment and powers of new trustee under written instrument.When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy, the proper Regional Trial Court may, after due notice to all persons interested, appoint a new trustee to act alone or jointly with the others, as the case may be. Such new trustee shall have and exercise the same powers, rights, and duties as if he had been originally appointed, and the trust estate shall vest in him in like manner as it had vested or would have vested, in the trustee 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 jointly with the others.

SEC. 4. Proceedings where trustee- appointed abroad.When land in the Philippines is held in trust for persons resident here by a trustee who derives his authority from without the Philippines, such trustee shall, on petition filed in the Regional Trial Court 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 like manner as if he had been originally appointed by such court.

NOTES:1. Territoriality of Authority of a Trustee

- The powers of a trustee appointed by the Philippine court cannot extend beyond the confines of the territory of the Republic of the Philippines based on the participle that his authority cannot extend beyond the jurisdiction of the Republic of the Philippines.

SEC. 5. Trustee must file bond.Before entering on the duties of his trust, a trustee shall file with the clerk of the court having jurisdiction of the trust a bond in the amount fixed by the judge of said court, payable to the Government of the Philippines and 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 exempt a trustee under a will from giving a bond when the testator has directed or requested such exemption, and may so exempt any trustee when all persons beneficially interested in the trust, being of full age, request the exemption. Such exemption may be cancelled by the court at any time, and the trustee required to forthwith file a bond.

NOTES:1. Filing of Bond as a Requirement

- trustee appointed by the court is required to furnish a bond in order to qualify him to administer the trust.- exemption from filing of bond by trustee under a will: when the testators has directed or requested such exemption or when all persons beneficially interested in the trust, being of full age, request the exemption. Such exemption may cancelled by the court at any time, and the trustee required to forthwith file a bond.

2. Effect of Failure to File Bond - he fails to qualify as trustee.

SEC. 6. Conditions included in bond.

The following conditions shall be deemed to be a part of the bond whether written therein or not:

(a) That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge;

(b) That he will manage and dispose of all such estate, and 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) That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by the court, a true account of the property in his hands and of the management and disposition thereof, and will render such other accounts as the court may order;

(d) That at the expiration of his trust he will settle his 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.

But when the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory, if one has already been filed, and in such case the condition of the bond shall be deemed to be altered accordingly.

NOTES:1. Manner of Executing the Trust

a. The trustee is bound to comply strictly with the directions contained in the trust instrument defining the extent and limits of his authority, and the nature of his power and duties.

b. He must carry into effect the trusts so far as they are valid and consistent with the rules of law, unless exempted from the literal performance by the consistent of all persons interested, and by the sanction of the court.

2. Duties of Trustee vis-à-vis Executor or Administrator

TRUSTEE EXECUTOR / ADMINISTRATORholds an office of trust holds an office of trustusually governed by the intention of the trustor or the parties (if established by contract)

duties are fixed and/ or limited by law

duties of trustees may cover a wider range (Araneta v. Perez, (62))

3. Filing Inventory- rule: trustee should make and return to the court, a true inventory of all the

real and personal estate belonging to him as trustee which at the time of the making of such inventory shall have come to his possession or knowledge.

- when inventory can be dispensed with: when the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory, if one has already been filed.

4. Faithful Discharge of the Trust (illustrations)- power and duty of a trustee to collect, take possession of, and keep 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 make payments and distribution to beneficiaries in accordance with the terms of the trust.(the trustee is chargeable with the 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 risk. The duty extends to income and increments of the estate. - must enforce and collect chooses in action, debts and demands belonging to the estate, except where such collection and enforcement will result in a loss to the estate.

5. Accounting by TrusteeThe cestui que trust is entitled to a complete accounting from the trustee.

6. Liability of Trustee for Trust Funds- Roman Catholic Bishop of Jaro v. de la Pena, 26 Phil 144. One who, having in his possession trust funds, deposits them in his personal account in a bank, and mixes 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 all hazards; and where such funds are taken from the bank by furze mayor (force major), he is relieved from responsibility in relation thereto.

7. Nature of Possession by Trustee- Rule: trustee cannot acquire the trust estate by prescription 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. Nor can the trustee’s heirs make use of this possession to establish the prescription which they alleged. In such case, the period of prescription in favor of the heirs of the trustee should be computed from the date of the trustee’s death. (Palma v. Cristobal, 77 Phil 712)

- When a trustee may acquire the trust estate by prescription: when there is a repudiation of the trust, such repudiation being open, clear and unequivocal, known to the cestui que trust (because in that case, possession is no longer in behalf of the owner) (Salinas v. Tuazon, 55 Phil 729)

8. Breach of Trust by TrusteeBreach of Trust is every violation by a trustee of a duty which equity imposes on him, whether willful and fraudulent or done through negligence or arising through mere oversight or forgetfulness.

SEC. 7. Appraisal. Compensation of trustee.When an inventory is required 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 tax appraisers to assist in the appraisement. The compensation of the trustee shall be fixed by the court, if it be not determined in the instrument creating the trust.

NOTES:1. Compensation of Trustee

- shall be fixed by the court if not determined in the instrument creating the trust.- lies in court’s discretion

2. Factors Affecting Trustee’s Compensation- time to determine the reasonableness of the fees of the trustee: when he files a claim for the same (note: reasonableness cannot be decided in advance because it depends upon varied circumstances)- factors:

1. character & powers of the trusteeship2. risk and responsibility3. time 4. care & management of the estate

3. Reimbursement of Trustee for expenses- reimbursement for ALL NECESSARY and REASONABLE expenditures which he has made (including expenses incurred in rendering and proving his accounts and for costs and counsel fees in connection therewith)

SEC. 8. Removal or resignation of trustee.—The proper Regional Trial Court 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. The court may also, after due notice to all persons interested, remove a trustee who is insane or otherwise incapable of discharging his trust or evidently unsuitable therefor. A trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court proper to allow such resignation.

NOTES:1. How to effect removal of a Trustee

- through a petition (and not an action at law by the beneficiary to recover the property from him) in the court in which appointment of the trustee was made,

2. Ground for Removal of Trustee (not exclusive)a. if removal is essential in the interests of the petitionerb. trustee becomes insane or otherwise incapable of discharging the trust or

evidently unsuitablec. when a trustee assumes to be holding in his own right (operates as a

renunciation of the trust) (Martinez v. Grano, 42 Phil 35) d. where trust property is misapplied by the trustee.

3. Resignation by Trustee- a trustee is at liberty to resign and apply for release on the sole grounf of unwillingness to act further in the trust. BUT- acceptance of the resignation of a trustee is not a matter of course (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. 9. Proceedings for sale or encumbrance of trust estate.When the sale or encumbrance of any real or personal estate held in trust is necessary or expedient, the court having jurisdiction 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 objects of the trust. The 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:

1. Requirement of Judicial Order for Sale or Encumbrance of Trust Estate- trustees have the duty to collect and preserve intact the trust property- they have no power to change the character of the trust property unless it is of a perishable or transitory nature - if a change is necessary, permission of the court should be obtained.

2. Exercise by the Court of its Power- court has power to prohibit or order sale (where such action is necessary to the execution 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 invoking the aid of the court).

3. Duty of Trustee During the Sale of Trust Property- 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 trust.

RULE 99ADOPTION AND CUSTODY OF MINORS

Note: Rules 99 to 100 have been expressly repealed by AM No. 02-6-02, “Rule on Adoption” which became effective on August 22, 2002.

Definition of Adoption: juridical act which created between two persons a relation similar to that which results from legitimate filiation. (Prasnick v. Republic, 98 Phil 669) Lahum v. Sibulo (03). Adoption is a privilege—not innate or fundamental but rather a

right created by statute. It is a privilege which is governed by the state’s determination of what is for the best welfare of the child.

Nature of Proceeding: In Rem Republic v. Elepano (91). Not an adversarial proceeding since it has no particular

defendant. No court may entertain it unless it has jurisdiction over the parties and the res – the

personal status of the parties. Constructive notice is enough where the residence of the parents unknown. When the

parent has abandoned the child to be adopted, notice to the former is not required. (Santos v. Arazanso, (66))

Purpose of Adoption: promotion of the welfare of the child and the enhancement of his opportunities for a useful and happy life.

Construction of Adoption Statutes: Santos v. Arazanso (66). Every reasonable intendment should be sustained to fulfill and promote the interest and welfare of the child. Technical rules of pleading should not be stringently applied to adoption proceedings. A petition which contain the facts relating to the child and its parents substantially complies with the adoption statute.

Proof of Adoption: The decree of adoption is competent proof of the fact of adoption. The 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. However, 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: Execution, Existence, loss, contents.

Pedigree testimony is not allowed.

[A.m. No. 02-6-02-SC 2002-08-02]RULE ON ADOPTION

A. DOMESTIC ADOPTION

Section 1. Applicability of the Rule. – This Rule covers the domestic adoption of Filipino children.

Sec. 2. Objectives. – (a) The best interests of the child shall be the paramount consideration in all matters relating to his care, custody and adoption, in accordance with Philippine laws, the United Nations (UN) Convention on the Rights of the Child, UN Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally, and the Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption.

(b) The State shall provide alternative protection and assistance through foster care or adoption for every child who is a foundling, neglected, orphaned, or abandoned. To 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. Only when such efforts prove insufficient and no appropriate placement or adoption within the child’s extended family is available shall adoption by an unrelated person be considered.

(ii) safeguard the biological parents from making hasty decisions in relinquishing their parental authority over their child;

(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 inquiries, 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.

Any voluntary or involuntary termination of parental authority shall be administratively or judicially declared so as to establish the status of the child as “legally available for adoption” and his custody transferred to the Department of Social Welfare and Development or to any duly licensed and accredited child-placing or child-caring agency, which entity shall be authorized to take steps for the permanent placement of the child.

Sec. 3. Definition of Terms. – For purposes of this Rule:

(a) (a) “Child” is a person below eighteen (18) years of age at the time of the filing of the petition for adoption.

(b) (b) “A child legally available for adoption” refers to a child who has been voluntarily or involuntarily committed to the Department 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) “Voluntarily committed child” is one whose parents knowingly and willingly relinquish parental authority over him in favor of the Department.

(d) (d) “Involuntarily committed child” is one whose parents, known or unknown, have been permanently and judicially deprived of parental authority over him due to abandonment; substantial, continuous or repeated neglect and abuse; or incompetence to discharge parental responsibilities.

(e) (e) “Foundling” refers to a deserted or abandoned infant or child whose parents, guardian or relatives are unknown; or a child committed to an orphanage or charitable or similar institution with unknown facts of birth and parentage and registered in the Civil Register as a “foundling.”

(f) (f) “Abandoned child” refers to one who has no proper parental care or guardianship or whose parents have deserted him for a period of at least six (6) continuous months and has been judicially declared as such.

(g) (g) “Dependent child” 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.

(h) (h) “Neglected child” is one whose basic needs have been deliberately not attended to or inadequately attended to, physically or emotionally, by his parents or guardian.

(i) (i) “Physical neglect” occurs when the child is malnourished, ill-clad and without proper shelter.

(j) (j) “Emotional neglect” exists when a child is raped, seduced, maltreated, exploited, overworked or made to work under conditions not conducive to good health or made to beg in the streets or public places, or placed in moral danger, or exposed to drugs, alcohol, gambling, prostitution and other vices.

(k) (k) “Child-placement agency” refers to an agency duly licensed and accredited by the Department 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) “Child-caring agency” refers to an agency duly licensed and accredited by the Department that provides 24-hour residential care services for abandoned, orphaned, neglected or voluntarily committed children.

(m) (m) “Department” refers to the Department of Social Welfare and Development.

(n) (n) “Deed of Voluntary Commitment” refers to the written and notarized instrument relinquishing parental authority and committing the child to the care and custody of the Department executed 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 authorized representative of the Department after counseling and other services have been made available to encourage the biological parents to keep the child.

(o) (o) “Child Study Report” refers to a study made by the court social worker of the child’s legal status, placement history, psychological, social, spiritual, medical, ethno-cultural

background and that of his biological family needed in determining the most appropriate placement for him.

(p) (p) “Home Study Report” refers to a study made by the court social worker of the motivation and capacity of the prospective adoptive parents to provide a home that meets the needs of a child.

(q) (q) “Supervised trial custody” refers to the period of time during which a social worker oversees the adjustment and emotional readiness of both adopters and adoptee in stabilizing their filial relationship.

(r) (r) “Licensed Social Worker” refers to one who possesses a degree in bachelor of science in social work as a minimum educational requirement and who has passed the government licensure examination for social workers as required by Republic Act No. 4373.

(s) (s) “Simulation of birth” is the tampering of the civil registry to make 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.

(t) (t) “Biological Parents” refer to the child’s mother and father by nature.

(u) (u) “Pre-Adoption Services” refer to psycho-social services provided by professionally-trained social workers of the Department, the social services units of local governments, private and government health facilities, Family Courts, licensed and accredited child-caring and child-placement agencies and other individuals or entities involved in adoption as authorized by the Department.

(v) (v) “Residence” means a person’s actual stay in the Philippines for three (3) continuous years immediately prior to the filing of a petition for adoption and which is maintained until the adoption decree is entered. Temporary absences for professional, business, health, or emergency reasons not exceeding sixty (60) days in one (1) year does not break the continuity requirement.

(w) (w) “Alien” refers to any person, not a Filipino citizen, who enters and remains in the Philippines and is in possession of a valid passport or travel documents and visa.

SEC. 4. Who may adopt. – The following may adopt:

(1) Any Filipino citizen 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 children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his children in keeping with the means of the family. The requirement of a 16-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;

(2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) 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. Provided, further, That the requirements on residency and certification of the alien’s qualification to adopt in his country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate child of his Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.

(3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or

(ii) if one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses.

SEC. 5. Who may be adopted. – The following may be adopted:

(1) (1) Any person below eighteen (18) years of age who has been voluntarily committed to the Department under Articles 154, 155 and 156 of P.D. No. 603 or judicially declared available for adoption;

(2) (2) The legitimate child of one spouse, by the other spouse;

(3) (3) An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy;

(4) (4) A 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;

(5) (5) A child whose adoption has been previously rescinded; or

(6) (6) A child whose biological or adoptive parents have died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parents.

(7) (7) A child not otherwise disqualified by law or these rules.

Sec. 6. Venue. – The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside.

Sec. 7. Contents of the Petition. – The 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) If the adopter is a Filipino citizen, the petition shall allege the following:

(a) (a) The jurisdictional facts;

(b) (b) That 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 sixteen (16) 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 keeping with the means of the family and has undergone pre-adoption services as required by Section 4 of Republic Act No. 8552.

2) 2) If the adopter is an alien, the petition shall allege the following:

(a) (a) The jurisdictional facts;

(b) (b) Sub-paragraph 1(b) above;

(c) (c) That his country has diplomatic relations with the Republic of the Philippines;

(d) (d) 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 his government allows the adoptee to enter his country as his adopted child and reside there permanently as an adopted child; and

(e) (e) That he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition and he maintains such residence until the adoption decree is entered.

The requirements of certification of the alien’s qualification to adopt in his country and of residency may be waived if the alien:

(i) is a former Filipino citizen who seeks to adopt a relative within the fourth degree of consanguinity or affinity; or

(ii) seeks to adopt the legitimate child of his Filipino spouse; or

(iii) is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth degree of consanguinity or affinity of the Filipino spouse.

3) 3) If 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.

4) 4) If the adopter is married, the spouse shall be a co-petitioner for joint adoption except if:

(a) one spouse seeks to adopt the legitimate child of the other, or

(b) if one spouse seeks 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.

5) 5) If 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 known; sex, name and citizenship of adoptive mother and father, and the date and place of their marriage.

6) 6) If the petition prays for a change of name, it shall also state the cause or reason for the change of name.

In all petitions, it shall be alleged:

(a) The 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.

(b) That the adoptee is not disqualified by law to be adopted.

(c) The probable value and character of the estate of the adoptee.

(d) The first name, surname or names by which the adoptee is to be known and registered in the Civil Registry.

A certification of non-forum shopping shall be included pursuant to Section 5, Rule 7 of the 1997 Rules of Civil Procedure.

Sec. 8. Rectification of Simulated Birth. – In case the petition also seeks rectification of a simulated of birth, it shall allege that:

(a) (a) Petitioner is applying for rectification of a simulated birth;

(b) (b) The simulation of birth was made prior to the date of effectivity of Republic Act No. 8552 and the application for rectification of the birth registration and the petition for adoption were filed within five years from said date;

(c) (c) The petitioner made the simulation of birth for the best interests of the adoptee; and

(d) (d) The adoptee has been consistently considered and treated by petitioner as his own child.

Sec. 9. Adoption of a foundling, an abandoned, dependent or neglected child. – In case the adoptee is a foundling, an abandoned, dependent or neglected child, the petition shall allege:

(a) (a) The facts showing that the child is a foundling, abandoned, dependent or neglected;

(b) (b) The names of the parents, if known, and their residence. If the child has no known or living parents, then the name and residence of the guardian, if any;

(c) (c) The name of the duly licensed child-placement agency or individual under whose care

the child is in custody; and

(d) (d) That the Department, child-placement or child-caring agency is authorized to give its consent.

Sec. 10. Change of name. – In case the petition also prays for change of name, the title or caption must contain:

(a) (a) The registered name of the child;

(b) (b) Aliases or other names by which the child has been known; and

(c) (c) The full name by which the child is to be known.

Sec. 11. Annexes to the Petition. – The following documents shall be attached to the petition:

A. Birth, baptismal or foundling certificate, as the case may be, and school records showing the name, age and residence of the adoptee;

B. Affidavit of consent of the following:

1. The adoptee, if ten (10) years of age or over;

2. The biological parents of the child, if known, or the legal guardian, or the child-placement agency, child-caring agency, or the proper government instrumentality which has legal custody of the child;

3. The legitimate and adopted children of the adopter and of the adoptee, if any, who are ten (10) years of age or over;

4. The illegitimate children of the adopter living with him who are ten (10) years of age or over; and

5. The spouse, if any, of the adopter or adoptee.

C. Child study report on the adoptee and his biological parents;

D. If 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 exempted under Section 4(2);

E. Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; and

F. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any.

Sec. 12. Order of Hearing. – If the petition and attachments are sufficient in form and substance, the court shall issue an order which shall contain the following:

(1) the registered name of the adoptee in the birth certificate and the names by which the adoptee has been known which shall be stated in the caption;

(2) the purpose of the petition;

(3) the complete name which the adoptee will use if the petition is granted;

(4) the date and place of hearing which shall be set within six (6) 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 week for three successive weeks in a newspaper of general circulation in the province or city where the court is situated; Provided, that in case of application for change of name, the date set for hearing shall not be within four (4) months after the last publication of the notice nor within thirty (30) days prior to an election.

The newspaper shall be selected by raffle under the supervision of the Executive Judge.

(5) a directive to the social worker of the court, the social service office of the local government unit or any child-placing or child-caring agency, or the Department 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

(6) a directive to the social worker of the court to conduct counseling sessions with the biological parents on the matter of adoption of the adoptee and submit her report before the date of hearing.

At the discretion of the court, copies of the order of hearing shall also be furnished the Office of the Solicitor General through the provincial or city prosecutor, the Department and the biological parents of the adoptee, if known.

If a change in the name of the adoptee is prayed for in the petition, notice to the Solicitor General shall be mandatory.

Sec. 13. Child and Home Study Reports. – In preparing the child study report on the adoptee, the concerned social worker shall verify with the Civil Registry the real identity and registered name of the adoptee. If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the social worker to register the adoptee and secure a certificate of foundling or late registration, as the case may be.

The social worker 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.

In case the adopter is an alien, the home study report must show the legal capacity to adopt and that his government allows the adoptee to enter his country as his adopted child in the absence of the certification required under Section 7(b) of Republic Act No. 8552.

If after the conduct of the case studies, the social worker finds that there are grounds to deny the petition, he shall make the proper recommendation to the court, furnishing a copy thereof to the petitioner.

Sec. 14. Hearing. – Upon satisfactory proof that the order of hearing has been published and jurisdictional requirements have been complied with, the court shall proceed to hear the petition. The petitioner and the adoptee must personally appear and the former must testify before the presiding judge of the court on the date set for hearing.

The court shall verify from the social worker and determine whether the biological parent has been properly counseled against making hasty decisions caused by strain or anxiety to give up the child; ensure that all measures to strengthen the family have been exhausted; and ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest.

Sec. 15. Supervised Trial Custody. – Before issuance of the decree of adoption, the court shall give the adopter trial custody of the adoptee for a period of at least six (6) months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. The trial custody shall be monitored by the social worker of the court, the Department, or the social service of the local government unit, or the child-placement or child-caring agency which submitted and prepared the case studies. During said period, temporary parental authority shall be vested in the adopter.

The court may, motu proprio or upon motion of any party, reduce the period or exempt the parties if it finds that the same shall be for the best interests of the adoptee, stating the reasons therefor.

An alien adopter however must complete the 6-month trial custody except the following:

a) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or

b) one who seeks to adopt the legitimate child of his Filipino spouse; or

c) one who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse the latter’s relative within the fourth (4th) degree of consanguinity or affinity.

If the child is below seven (7) years of age and is placed with the prospective adopter through a pre-adoption placement authority issued by the Department, the court shall order that the prospective adopter shall enjoy all the benefits to which the biological parent is entitled from the date the adoptee is placed with him.

The social worker shall submit to the court a report on the result of the trial custody within two weeks after its termination.

Sec. 16. Decree of Adoption. – If 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 take effect as of the date the original petition was filed even if the petitioners die before its issuance.

The decree shall:

A. State the name by which the child is to be known and registered;

B. Order:

1) the Clerk of Court to issue to the adopter a certificate of finality upon expiration of the 15-day reglementary period within which to appeal;

2) the adopter to submit a certified true copy of the decree of adoption and the certificate of finality to the Civil Registrar where the child was originally registered within thirty (30) days from receipt of the certificate of finality. In case of change of name, the decree shall be submitted to the Civil Registrar where the court issuing the same is situated.

3) 3) the Civil Registrar of the place where the adoptee was registered:

a. to annotate on the adoptee’s original certificate of birth the decree of adoption within thirty (30) 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, sex, date of birth, place of birth, name and citizenship 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 court issuing the decree of adoption proof of compliance with all the foregoing within thirty days from receipt of the decree.

If the adoptee is a foundling, the court shall order the Civil 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 Civil Registrar in accordance with the decree.

Sec. 17. Book of Adoptions. – The Clerk of Court shall keep a book of adoptions showing the date of issuance of the decree in each case, compliance by the Civil Registrar with Section 16(B)(3) and all incidents arising after the issuance of the decree.

Sec. 18. Confidential Nature of Proceedings and Records. – All hearings in adoption cases, after compliance with the jurisdictional requirements shall be confidential and shall not be open to the public. All records, books and papers relating to the adoption cases in the files of the court, the Department, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential.

If 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. 19. Rescission of Adoption of the Adoptee. – The petition shall be verified and filed by the adoptee who is over eighteen (18) years of age, or with the assistance of the Department, if he is a minor, or if he is over eighteen (18) years of age but is incapacitated, by his guardian or counsel.

The adoption may be rescinded based on any of the following grounds committed by the adopter:

1) repeated physical and verbal maltreatment by the adopter despite having undergone counseling;

2) attempt on the life of the adoptee;

3) sexual assault or violence; or

4) abandonment or failure to comply with parental obligations.

Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code.

Sec. 20. Venue. – The petition shall be filed with the Family Court of the city or province where the adoptee resides.

Sec. 21. Time within which to file petition. – The adoptee, if incapacitated, must file the petition for rescission or revocation of adoption within five (5) years after he reaches the age of majority, or if he was incompetent at the time of the adoption, within five (5) years after recovery from such incompetency.

Sec. 22. Order to Answer. – The court shall issue an order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof. The order and copy of the petition shall be served on the adverse party in such manner as the court may direct.

Sec. 23. Judgment. – If the court finds that the allegations of the petition are true, it shall render judgment ordering the rescission of adoption, with or without costs, as justice requires.

The court shall order that the parental authority of the biological parent of the adoptee, if known, or the legal custody of the Department shall be restored if the 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 extinguished.

The court shall further declare that successional rights shall revert to its status prior to adoption, as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected.

It shall also order the adoptee to use the name stated in his original birth or foundling certificate.

The court shall further order the Civil Registrar where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate his original birth or foundling certificate.

Sec. 24. Service of Judgment. – A certified true copy of the judgment together with a certificate of finality issued by the Branch Clerk of the Court which rendered the decision in accordance with the preceding Section shall be served by the petitioner upon the Civil Registrar concerned within thirty (30) days from receipt of the certificate of finality. The Civil Registrar shall forthwith enter the rescission decree in the register and submit proof of compliance to the court issuing the decree and the Clerk of Court within thirty (30) days from receipt of the decree.

The Clerk of Court shall enter the compliance in accordance with Section 17 hereof.

SEC. 25. Repeal. - This supersedes Rule 99 on Adoption and Rule 100 of the Rules of Court.

Salient Features of the Rule

The issue of simulated birth of the adoptee and the declaration that the child is abandoned, dependent and neglected must first be taken up in separate proceedings, and a favorable decision is required before the adoption process can be pursued.

The rule consolidates actions for declaration of abandonment, change of name, rectification of simulated birth.

§7 specifies the form and contents of the petition. The requirements in the 3 proceedings have been laid down in the Sections 8-10 of the Rule.

o When the petition includes a prayer for change of name, notice to the OSG is mandatory (§12). In all other cases, the notice to the OSG is within the discretion of the court.

§13 specifies the role of the social worker – prepare the child and home study reports on the adoptee and the adopter.

§15 provides for supervised trial custody of the child and grants authority to the courts to reduce the period or exempt the parties as called for the best interests of the adoptee.

§16 specifies the contents of the decree and the duties of the COC and the office of the civil registrar

§17 provides that all matters relative to the adoption and all the incidents arising after the issuance of the decree shall be recorded in a book of adoption kept by the COC of the Family Court.

§18 provides for confidentiality of records.

Requirement of Joint Adoption by Husband and Wife Under the new law, joint adoption by husband and wife is mandatory and this is in

consonance with the concept of joint parental authority over the child. This rule also insures harmony between the spouses.

Requirement of Consent to the Adoption §9, RA 8552 enumerates the persons whose consent is necessary to the Adoption Cang v. CA (98). No consent is necessary when a child has been declared abandoned by

an unknown parent, or when the parent is insane or hopelessly intemperate. Cang v. CA (98). Allegations of abandonment in the petition for adoption without the

written consent of the alleged parent sufficiently vested the court with jurisdiction since abandonment of the child by his natural parents is one of the circumstances which our statutes and jurisprudence dispense with the requirement of written consent to the adoption of their minor children.

o Abandon – forsake or renounce utterly. In the context of adoption, it imports any conduct of the parent which evinces a settled purpose to forgo all parental duties and relinquish all parental claims to the child. Physical estrangement alone does not necessarily amount to abandonment.

o The discretion to approve adoption proceedings is not to be anchored solely on best interest of the child but likewise, with due regard to the natural rights of the parents over the child.

Jurisdictional Requirement: residence and name of the adoptee (Cruz v. Republic (66)) It is generally held that a petition will confer jurisdiction if it substantially complies with

the adoption statute, alleging the necessary facts to give the court jurisdiction

Republic v. CA, (96). However, a mere clerical error in the name of the adoptee is not fatal to the decree of adoption.

Parental Authority during Trial Period Parental 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. Tamargo v. CA (92). Where the trial custody had not yet begun or had already been

completed at the time of a quasi-delict committed by the child to be adopted, the adopting parents cannot assume any liability therefor. Accordingly, his natural parents should be joined as indispensable parties to the suit for damages.

INTERCOUNTRY ADOPTION

RULES UNDER AM 02-6-02 (AUGUST 22,2002)B. Inter-Country Adoption

Sec. 26. Applicability. – The following sections apply to inter-country adoption of Filipino children by foreign nationals and Filipino citizens permanently residing abroad.

SEC. 27. Objectives. – The State shall:

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 Philippines;

b) ensure that the child subject of inter-country adoption enjoys the same protection accorded to children in domestic adoption; and

c) take all measures to ensure that the placement arising therefrom does not result in improper financial gain for those involved.

Sec. 28. Where to File Petition. – A verified petition to adopt a Filipino child may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found.

It may be filed directly with the Inter-Country Adoption Board.

Sec. 29. Who may be adopted. – Only a child legally available for domestic adoption may be the subject of inter-country adoption.

Sec. 30. Contents of Petition. – The petitioner must allege:

a) a) his age and the age of the child to be adopted, showing that he is at least twenty-seven (27) years of age and at least sixteen (16) 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 joined as co-petitioner except 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 example to all his children, including the child to be adopted;

g) g) that he agrees to uphold the basic rights of the child, as embodied under Philippine laws and the U. N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of Republic Act No. 8043;

h) h) that he comes from a country with which the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption of a Filipino child is allowed under his national laws; and

i) i) that he possesses all the qualifications and none of the disqualifications provided in this Rule, in Republic Act No. 8043 and in all other applicable Philippine laws.

Sec. 31. Annexes. - The petition for adoption shall contain the following annexes written and officially translated in English:

a) a) Birth certificate of petitioner;

b) b) Marriage contract, if married, and, if applicable, the divorce decree, or judgment dissolving the marriage;

c) c) Sworn statement of consent of petitioner’s biological or adopted children above ten (10) years of age;

d) d) Physical, medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist;

e) e) Income tax returns or any authentic document showing the current financial capability of the petitioner;

f) f) Police clearance of petitioner issued within six (6) months before the filing of the petitioner;

g) g) Character reference from the local church/minister, the petitioner’s employer and a member of the immediate community who have known the petitioner for at least five (5) years;

h) h) Full body postcard-size pictures of the petitioner and his immediate family taken at least six (6) months before the filing of the petition.

The law created the Inter-Country Adoption Board (ICAB) to act as the central authority in matters relating to inter-country adoption. All matters relating to inter-country adoption must pass through the ICAB.

The only provision in the Inter-Country Adoption Act which allows the courts to participate is in §10 wherein courts may receive the application, assess the qualification of the prospective adopter and then refer its findings, if favorable to the ICAB.

Salient Features of the Rule: It clearly provides that it applies only to inter-country adoption of Filipino children by

foreign nationals and Filipino citizens permanently residing abroad. It clarifies a legally free adopted child to be one who was voluntarily or involuntarily

committed to the DSWD. The petition must specifically allege the qualifications of the adopter. All documents must

be written and officially translated in English. So as not to expose the petitioner to unnecessary expense 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 ICAB for appropriate action.

Effects of Adoption Under Art 189, FC:

For civil purposes, the adopted shall be deemed the legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child/

The parental authority of the parents by nature shall terminate and be vested in the adopters

The 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

extend 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 acquisition of

the citizenship of the adopter Acquisition of citizenship partakes of the character of naturalization which is not

regulated by the civil code The framers of the civil code does not intend to regulate political questions.

Republic v. Wong (92). The change of surname of the adopted child is more of an incident rather than the object of an adoption.

Marcaida v. Aglubat (67). An adoption created under the law of a foreign country is entitled to registration in the corresponding civil register of the Philippines. The effects of such adoption shall be governed by the law of the Philippines.

RULES ON CUSTODY OF CHILDREN (FOR COMMITMENT OF CHILDREN, SEE APPENDIX “B”)

NOTE: the rule on Adoption did not repeal sections 6 and 7 of Rule 99

Sec. 6. Proceedings as to child whose parents are separated; Appeal.

When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance 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 take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. If, 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 take charge of

such child, or commit it to any suitable asylum, children's home, or benevolent society. The court may in conformity with the provisions of the Civil Code order either or both parents to support or help support said child, irrespective of who may be its custodian, and may make any order that is just and reasonable permitting the parent who is deprived of its care and custody to visit the child or have temporary custody thereof. Either parent may appeal from an order made in accordance with the provisions of this section. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor.

Under the Family Courts Act of 1997, cases involving the custody of minors is within the orignal and exclusive jurisdiction of Family Courts.

Substantive Basis Article 63, FC

The 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.

Xxx(3) the custody of minor children shall be awarded to the innocent spouse, subject to the provisions of Art 213 of the Civil Code

Art 213, Civil Code In case of separation of parents, parental authority shall be exercised by the parent designated by the court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

Under Art. 363, CC the best interest of the child can override procedural rules and even the rights of parents to the custody of their children.

The sole and foremost consideration is the physical, education, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents.

The 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 adequate support, education, moral, intellectual and civic training and development.

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law.

RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS

Where 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. No. 03-04-04-SCRule On Custody Of Minors And Writ Of Habeas Corpus In Relation To Custody Of

Minors

SECTION 1. Applicability.

This rule shall apply to petitions for custody of minors and writs of habeas corpus in relation thereto. The Rules of Court shall apply suppletorily.

SEC. 2. Petition for custody of minors; who may file.A verified petition for the rightful custody of a minor may be filed by any person claiming such right. The party against whom it may be filed shall be designated as the respondent.

The phrase “any person claiming rightful custody” is broad enough to cover the following:

1. the unlawful deprivation of the custody of a minor, or2. 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. 3. Where to file petition.The petition for custody of minors shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may be found.

SEC. 4. Contents of petition.The verified petition shall allege the following:

(a) The personal circumstances of the petitioner and of the respondent;(b) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent;(c) The material operative facts constituting deprivation of custody; and(d) Such other matters which are relevant to the custody of the minor.

The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner must sign personally.

The complete facts constituting deprivation of custody are to be alleged by the pleader.

Purpose: so that the litigation does not become protracted with the unnecessary filing, for example, of motion of dismiss, bills of particulars and other such pleadings, which could be elevated to the appellate courts by certiorari.

SEC. 5. Summons; personal service on respondent. If the court is satisfied that the petition is sufficient in form and substance, it shall direct the clerk of court to issue summons, which shall be served together with a copy of the petition personally on the respondent.

Service of the summons with the copy of the petition is to be made on the respondent himself.

Purpose: to ensure that respondent will file the answer promptly. In any event, Rule 14, 1997 Rules of Civil Procedure, as amended, applies

suppletority.

SEC. 6. Motion to Dismiss.A motion to dismiss the petition is not allowed except on the ground of lack of jurisdiction over the subject matter or over the parties. Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer.

SEC. 7. Verified Answer.The 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. 8. Case study; duty of social worker.Upon the filing of the verified answer or the expiration of the period to file it, the court may order a social worker to make 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 scheduled pre-trial.

The 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. 9. Notice of mandatory pre-trial.Within fifteen days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order: (1) fixing a date for the pre-trial conference; (2) 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 (3) requiring the respondent to present the minor before the court.

The notice of its order shall be served separately on both the parties and their respective counsels. The pre-trial is mandatory.

SEC. 10. Contents of pre-trial briefThe pre-trial brief shall contain the following:(a) A statement of the willingness of the parties to enter into agreements that may be allowed by law, indicating its terms;(b) A concise statement of their respective claims together with the applicable laws and authorities;(c) Admitted facts and proposed stipulations of facts;(d) The disputed factual and legal issues;(e) All the evidence to be presented, briefly stating or describing its nature and purpose;(f) The number and names of the witnesses and their respective affidavits which shall serve as the affiant's testimony on direct examination; and(g) Such other matters as the court may require to be included in the pre-trial brief.

Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial.

SEC. 11. Effect of failure to appear at the pre-trial.-(a) If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed, unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner.

(b) If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner shall be allowed to present his evidence ex parte. The court shall then render judgment on the basis of the pleadings and the evidence thus presented.

If the petitioner fails to appear at the pre-trial: the case shall be dismissed If the respondent fails to appear at the pre-trial: the petitioner will be allowed

to present his evidence ex parte. Thereafter, the court may proceed to render judgment based on the pleadings filed and the evidence submitted.

SEC. 12. What may be done at pre-trial. At the pre-trial, the parties may agree on the custody of the minor. If 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. If 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.

There are two stages in pre-trial:1. In the first stage, the parties may agree to the custody of the minor. The

parties may reach a settlement even before attending the pre-trial. Or, they may reach an agreement in court itself.

If during the pr-trial it appears that no such settlement is forthcoming, the trial court will direct the parties to secure the services of the mediator.

2. If this likewise does not produce an amicable settlement the court will proceed with the pre-trial conference where it may consider such other matters as may aid in the prompt disposition of the petition.

SEC. 13. Provisional order awarding custody. After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody:(a) Both parents jointly;(b) Either parent, taking 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) The 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 disqualified;(d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;(e) The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or(f) Any other person or institution the court may deem suitable to provide proper care and guidance for the minor.

SEC. 14. Factors to consider in determining custody. In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. The 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. It also means the least detrimental available alternative for safeguarding the growth and development of the minor.The court shall also consider the following:(a) Any extrajudicial 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, except when there is an existing threat or danger of physical, mental, sexual or emotional violence which endangers the safety and best interests of the minor;(b) The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent;(c) The health, safety and welfare of the minor; (d) Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the

parent;(e) The nature and frequency of contact with both parents;(f) Habitual use of alcohol, dangerous drugs or regulated substances;(g) Marital misconduct;(h) The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and(i) The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit.

In all cases, the best-interest-of–the–minor is the yardstick to be used by the court in granting custody.

“Best interests” is defined to be “the 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.” It also means “the least detrimental available alternative for safeguarding the growth and development of the minor.”

SEC. 15. Temporary visitation rights. The 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 disqualified.

The 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 take him out of his residence for more than three days provided it does not prejudice the visitation rights of the non-custodial parent or parents.

SEC. 16. Hold Departure Order.The minor child subject of the petition shall not be brought out of the country without prior order from the court while the petition is pending.The court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the minor from the Philippines without the permission of the court.The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order within twenty-four hours from its issuance and through the fastest available means of transmittal.The hold departure order shall contain the following information:

(a) The 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 enjoined;(b) The complete title and docket number of the case in which the hold departure order was issued;(c) The specific nature of the case;(d) The date of the hold departure order; and(e) A recent photograph, if available, of the party against whom a hold departure order has been issued or whose departure from the country has been enjoined.

The court may recall the hold departure order motu proprio, or upon verified motion of any of the parties after summary hearing, subject to such terms and

conditions as may be necessary for the best interests of the minor.

SEC. 17. Protection Order.The court may issue a Protection Order requiring any person:(a) To 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)To 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) To refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the minor;(d) To 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) To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; and (f) To comply with such other orders as are necessary for the protection of the minor.

SEC. 18. Judgment.After trial, the court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor.If 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 take charge of such minor, or commit him to any suitable home for children.In its judgment, 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. In 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; (2) the physical and emotional health, special needs, and aptitude of the minor; (3) the standard of living the minor has been accustomed to; and (4) the non-monetary contributions that the parents would make toward the care and well-being of the minor.

The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody.

SEC. 19. Appeal. – No 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 judgment.

An aggrieved party may appeal from the decision by filing a Notice of Appeal 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. 20. Petition for writ of habeas corpus.A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs.However, the petition may be filed with the regular court in the absence of the presiding judge of the Family Court, provided, however, that the regular court

shall refer the case to the Family Court as soon as its presiding judge returns to duty.The petition may also be filed with the appropriate regular courts in places where there are no Family Courts.The writ issued by the Family Court or the regular court shall be enforceable in the judicial region where they belong.The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court 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.

Upon return of the writ, the court shall decide the issue on custody of minors. The appellate court, or the member thereof, issuing the writ shall be furnished a copy of the decision.

Where it appears that a minor is being kept from a parent by the other parent, or in similar situations involving other parties, and time is of the essence, the party seeking rightful custody of the minor may file a verified petition for habeas corpus with the Family court. Any writ issued by the family court, as a result of such filing, is enforceable only within its territorial jurisdiction.

SEC. 21. Confidentiality of proceedings.The 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. Effectivity. This Rule shall take effect on May 15, 2003 following its publication in a newspaper of general circulation not later than April 30, 2003

3. JURISDICTION OF COURT OF APPEALS TO ISSUE WRIT OF HABEAS CORPUS

The Family Courts Law which vested Family Courts with original and exclusive jurisdiction in the custody of children and to issue writs of habeas corpus in relation thereto have not divested the Court of Appeals much less the Supreme Court of its jurisdiction to issue writs of habeas corpus involving the rightful custody of children.

Note: the writ is issued by a Family Court only in relation to custody of minors. An ordinary petition for habeas corpus should be filed in the regular court.

The issue of child custody may be tackled by the Family Court without need of a separate petition for custody being filed, following the ruling in Suarez vs. CA:

“It is worthy to note that the ground upon which respondent Manese filed her motion to dismiss is erroneous since the question as to who shall have the custody of the child can be sufficiently resolved in the petition for writ of habeas corpus pursuant to Rule 102, Revised Rules of Court without the necessity of filing a separate action under Rule 99 of the said rules for that purpose…”

4. RATIONALE OF THE RULE ON CUSTODY OIF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS

Section 12, Article II of the Constitution: “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic social institution.

At present however, many marriages are being dissolved legally with other married couples being separated legally and de facto. The victims, are of course, the children.

The State therefore steps in at this point with an array of laws to “defend the right of children to special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development.

5. PROCEEDINGS AS TO VAGRANT OR ABUSED CHILD (Rule 99, Sec. 7)

Sec. 7. Proceedings as to vagrant or abused child. When 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 excessive harshness or give it corrupting orders, counsels, or examples, or cause or allow it to engage in begging, or to commit offenses against the law, the proper Court of First Instance, upon petition filed by some reputable resident of the province setting forth the facts, may issue an order requiring such parents to show cause, or, if the parents are dead or cannot be found, requiring the fiscal of the province to show cause, at a time and place fixed in the order, why the child should not be taken 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 make an order taking 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: This provision contemplate a situation when parents of any minor child are:

a. dead, orb. by reason of long absence or physical disability have abandoned it, orc. cannot support it through vagrancy, negligence or misconduct, or neglect or

refuse to supprt it, ord. treat it with excessive harshness, ore. give it corrupting orders, counsels or examples, orf. cause to allow it to engage in begging, or to commit offenses against the law.

In such cases, the proper RTC, upon petition filed by some reputable resident of the province setting forth the facts, may issue an ordera. requiring such parents to show cause, orb. if such parents are dead or cannot be found, requiring the fiscal of the province

to show cause

If upon hearing, it appears the allegations in the petition are true, the court may make an order:a. taking the child from its parents, andb. 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.

PRESIDENTIAL DECREE NO. 603 THE CHILD AND YOUTH WELFARE CODE

Art. 21. Dependent, Abandoned or Neglected Child. - The 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 Department of Social Welfare.

Art. 22. Transfer to the Department of Social Welfare. - The dependent, abandoned or neglected child may be transferred to the care of the Department of Social Welfare or a duly licensed child-caring institution or individual in accordance with Articles 142 and 154 of this Code, or upon the request of the person or institution exercising parental authority over him. From the time of such transfer, the Department of Social Welfare or the duly licensed child-caring institution or individual shall be considered the guardian of the child for all intents and purposes.

Art. 23. Case Study. - It shall be the duty of the Department of Social Welfare to make a case study of every child who is the subject of guardianship or custody proceedings and to submit its report and recommendations on the matter to the court for its guidance.

Art. 141. Definition of Terms. - As used in this Chapter: (1) A 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. (2) An 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 six continuous months. (3) A neglected child is one whose basic needs have been deliberately unattended or inadequately attended. Neglect may occur in two ways: a) There is a physical neglect when the child is malnourished, ill clad and without proper shelter. A child is unattended when left by himself without provisions for his needs and/or without proper supervision. b) Emotional neglect exists: when children are maltreated, raped or seduced; when children are exploited, overworked or made to work 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 exposed to gambling, prostitution and other vices.(4) Commitment or surrender of a child is the legal act of entrusting a child to the care of the Department of Social Welfare or any duly licensed child placement agency or individual. Commitment may be done in the following manner: a) Involuntary 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 and/or parental incompetence to discharge parental responsibilities, and in the manner, form and procedure hereinafter prescribed. b) Voluntary commitment, through the relinquishment of parental or guardianship rights in the manner and form hereinafter prescribed.

Art. 142. Petition for Involuntary Commitment of a Child: Venue. - The Department of Social Welfare Secretary or his authorized representative or any duly licensed child placement agency having knowledge 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. The petition shall be filed with the Juvenile and Domestic Relations Court, if any, or with the Court of First Instance of the province or City Court in which the parents or guardian resides or the child is found.

RULE 100 RECISSION AND REVOCATION OF ADOPTION

the court has no jurisdiction to annul, after the period fixed by the rule, a decree of adoption

validity of the adoption can only be attacked in a direct proceeding frontally addressing the issue

a finding that the requisite jurisdictional facts exists cannot be questioned in a collateral proceeding.

The grounds for revocation provided in Article 348 of the New Civil Code refer only to an adoption validly decreed, not an adoption void from the beginning i.e., tainted with fraud.

The new adoption law deleted from the law the right of adopters to rescind a decree of adoption. Now, only the adoptee may rescind. (see §19, AM 02-6-02)

The approval of adoption lies in the sound discretion of the court. The discretion should be exercised in accordance with the best interests of the child, as long as the natural rights of the parents over the child are not disregarded.

The petition to set aside the adoption must be filed with the family court of the city/province where the adoptee resides. Period: within 5 years after he reaches the age of majority of within 5 years after the recovery from such incompetency.

If the adopted is still a minor, rescission will reinstate the parental authority of the natural parents. If they are incapacitated, a guardian over the person and property of the minor will be appointed in the same proceeding.

Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted. The adopted shall lose the right to use the surname of the adopters and shall resume his surname prior to the adoption.

The court shall order the amendment of the records in the civil register.

RULE 101  PROCEEDINGS FOR HOSPITALIZATION OF INSANE PERSONS

Sec. 1. Venue; Petition for commitment.A petition for the commitment of a person to a hospital or other place for the insane may be filed with the Court of First Instance of the province where the person alleged to be insane is found. The petition shall be filed by the Director of Health 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 judgment, is insane, and such person or the one having charged of him is opposed to his being taken to a hospital or other place for the insane.

1. Application of the rule- applicable only when the hospitalization of the insane person is for:

a. public welfareb. welfare of person who in the judgment of the director of health is insane, if the

insane or the one who has charge of him is opposed to the confinement.

2. Nature of the acts of the director- Rico v. Vda de Inchausti, 40 Phil 504. May be preliminary but is entirely independent and forms part of the judicial proceedings

3. Nature of the proceedings- Purpose: protection of the community at large (vs. appointment of guardian – protection of person and estate)- Nature: police regulations

4. Venue- RTC of province where the person alleged to be insane is found

5. Insanity defined- 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

6. Craziness not insanity- the popular meaning of ‘crazy’ is not synonymous to the legal terms insane, non compos mentis, unsound mind, idiot or lunatic.

Intervention of the Dir. of Health may be deemed preliminary but is entirely independent and forms part of the judicial proceedings dealing with the guardianship of insane persons

The 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,

Insanity – 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.

o Crazy is not synonymous with the legal terms insane, non compos mentis, unsound mind, idiot or lunatic

Sec. 2. Order for hearing.If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix 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 judge may deem proper. The court shall furthermore order the sheriff to produce the alleged insane person, if possible, on the date of the hearing.

1. Right of insane person to notice and hearing- while it has been held that want of notice does not render the proceedings invalid and that the commitment is not subject to collateral attack, it has also been held that want of notice renders the proceedings void or at least, is good ground for vacating the order of judgment.

- time of notice: reasonable under the circumstances and gives the alleged incompetent adequate opportunity to be preset and be heard.

- The 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.

- Want of notice renders the proceedings void or at least, is ground for vacating the order of commitment

- The time of notice must be reasonable under the circumstances of the particular case. The alleged incompetent must be given adequate opportunity to be present and to be heard in defense of his right.

-Sec. 3. Hearing and judgment. Upon satisfactory proof, in open court on the date fixed 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 take 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 Director of Health. The court shall make proper provisions for the custody of property or money belonging to the insane until a guardian be properly appointed.

1. Burden of proof- on the plaintiff who alleges insanity- if he asserts the insanity is only occasional and intermittent, the burden is on him to prove its existence at the time it is alleged.- if he asserts insanity as an element of his case, BOP rests on him to establish the fact, although the presumption of sanity operates in his favor at the outset.

2. Protection of the estate of the insane person

- pending appeal, the TC has jurisdiction to order a 3rd 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.- Mercader v. Wislizenus, 34 Phil 846. It is the duty of the court to protect the property pending appeal.

Sec. 4. Discharge of insane. When, in the opinion of the Director of Health, 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 Court of First Instance which ordered the commitment.

1. Jurisdiction and venue of proceedings for restoration of capacity- probate courts or courts exercising probate jurisdiction- general rule: the application should be made to court in which the proceedings were had resulting in the adjudication of incompetency

2. Nature of the proceedings- special proceeding of summary character; not a new proceeding but a continuance of the original guardianship proceeding

3. Release of the insane person - Chin Ah Foo v. Concepcion, 54 Phil 775. where the insane was judicially committed to the hospital or asylum, the Director of Health cannot order his release without approval of RTC which ordered the commitment.- RTC cannot order release without recommendation from Director of Health

Sec. 5. Assistance of fiscal in the proceeding.It shall be the duty of the provincial fiscal or in the City of Manila the fiscal of the city, to prepare the petition for the Director of Health and represent him in court in all proceedings arising under the provisions of this rule.

RULE 102 HABEAS CORPUS

Sec. 1. To what habeas corpus extends.Except as otherwise expressly provided by law, the writ of habeas corpus shall extend 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.

1. Purpose- Villavicencio v. Lukban, 39 Phil 778: 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 (Velasco v. CA, (95))- Constitution: privilege of writ of habeas corpus cannot be suspended

Except in cases of invasion or rebellion when the public safety requires it.- Quintos v. Director of Prisons, 55 Phil 304: remedy intended to determine WON the person detained is held under lawful authority- Alimpoos v. CA, 106 SCRA 159: 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 judgment can be entered against anybody, no real plaintiff and defendant- an inquisition by the government- Lee Ching v. Insular Collector of Customs, 33 Phil 329: separate and distinct from the main case from which the proceedings spring. They 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.

3. Who may avail of the 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 jurisdiction 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 jurisdiction then the writ of habeas corpus should be granted

4. Grounds for issuance (applies to all forms of involuntary restraints, Moncupa v. Enrile, (86))- 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

5. Petitioner’s temporary release does not render petition for writ moot and academic- gen. rule: release, whether permanent or temporary, renders petition for habeas corpus moot and academic- except: when there are restraints attached to his release which precludes freedom of action (Moncupa v Enrile)- examples of restrictions:

1. condition that petitioner gets approval of respondents for any travel outside Metro Manila restricts freedom of movement

2. liberty of abode restricted by need for prior approval for changing residences3. freedom of speech muffled by prohibition that he can not give interviews4. regular reporting to respondents required

- it is not physical restraint alone which is inquired into by the writ of HC- Villavicencio v Lukban: although women were no longer under any official restraint and were free to change their domicile, the Court condemned the involuntary restraints caused by the official action of transporting them out of Davao.- Caunca v Salazar, 82 Phil 851 : employment agency has no power to curtail freedom of movement. No physical force is required; freedom may be lost due to external moral compulsion. If the actual effect of such psychological spell is to place a person at the mercy of another, the victim is entitled to court protection.- Tibo v The Provincial Commander, 85 SCRA 564: the moment a person is acquitted on a criminal charge he can no longer be detained or re-arrested for the same offense.

6. Denial of constitutional right- Gumabon v. Director, 37 SCRA 420: for denial of a constitutional right to the accused, the hearing tribunal may lose its jurisdiction and HC would lie to obtain the release of the accused.- Chavez v. CA, (68). The writ of HC is an extraordinary remedy must be liberally given effect so as to protect person’s liberty. Writ 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. Writ may be granted upon a judgment already final.

7. Excessive sentence or penalty may be corrected by writ

8. Writ applied to persons sentenced to life for violation of Dangerous Drugs Law but penalty reduced by new law- Angeles v. Bombita (95). All competent courts may entertain petitions for HC for this purpose, although it is deficient in form as long as they are sufficient in substance.

9. The writ of Habeas Corpus is the proper legal remedy to enable parents to regain custody of minor children - even if the child is in the custody of the 3rd person of his own free will

9.a. Question of custody if minor can be resolved in petition for writ (Suarez v. CA, (91))- in custody cases involving minors, the writ is prosecuted for the purpose of determining the right of custody if a child.- questions as to who shall have the custody of a child can be sufficiently resolved in petition for writ of HC under Rue102, without need of filing a separate action under Rule99 for that purpose.

9.b. Judicial discretion in issuance of writ- Eugenio v. Velez, (90). While HC 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.

9.c. Technicality should not stand in way of giving child full protection- Macazo v. Nunez, (59). Minor’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.

9.d. Minor’s welfare as paramount consideration- Sombong v. CA, (96). The controversy does not involve the question of personal freedom, since an infant is presumed to be in someone’s custody until he attains majority age; rather the welfare of the child is the supreme consideration. Hence, these cases are decided on the court’s view of the best interests of the child.

9.e. Requisites for issuance of writ (Sombong v. CA, (96).)1. petitioner has the right to the custody over the minor2. the rightful custody of the minor is being withheld from the petitioner by the respondent3. that it is to the best interest of the minor concerned to be in the custody of petitioner and not that of respondent

10. Writ of habeas corpus may be used with writ of certiorari for the purpose of review (Galvez v. CA, (94))- writs of HC and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts.- HC reaches body and jurisdictional matters but not record- certiorari reaches record but not the body

Thus HC + certiorari = review

11. But as a general rule, Writ of HC cannot function as a writ of error- HC will not lie to correct errors of fact or of law

Only exception: when the error affects the court’s jurisdiction or is one that would make the judgment absolutely void.

12. Writ does not lie where there is remedy of appeal- 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 jurisdiction.

13. Exceptional circumstances needed for grant of the writ

- it has to be an exceptional case for the writ of HC to be available to an accused before trial.

14. Petition for HC not proper1. Galvez v. CA: for asserting or vindicating denial of right to bail2. Sotto v. Director of Prisons, (62). for correcting errors in appreciation of

facts/appreciation of law

15. HC in deportation proceedings- De Bischop v. Galang, 8 SCRA 244. Proper remedy for reviewing proceedings for deportation of aliens

Sec. 2. Who may grant the writ.The writ of habeas corpus may be granted by the Supreme Court, or any member thereof, on any day and at any time, or by the Court of Appeals or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before the Court of First Instance, or any judge thereof for the hearing and decision on the merits. It may also be granted by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district.

1. Concurrent jurisdiction to issue writ- SC, CA and RTC have concurrent jurisdiction to issue writs of HC- writ issued by SC and CA – enforceable anywhere in Philippines- Writ issued by RTC or Family Court, enforceable only within its region.

2. Jurisdiction of Family Courts- RA 8369 vests FC with exclusive original jurisdiction to issue writs of HC in relation to custody of minors. Other regular courts still with jurisdiction, but must be referred to FC as soon as presiding judge returns to duty.

Sec. 3. Requisites of application therefor.Application 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) That the person in whose behalf the application is made is imprisoned or restrained of his liberty; (b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown 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) The place where he is so imprisoned or restrained, if known; (d) A 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.

1. Requisites (Ngaya-an v. Balweg, (91))- in passing upon petition for HC, the Court must determine whether:

1. person in whose behalf the application is made is imprisoned or restrained of his liberty

2. name of person detaining another3. place where he is imprisoned or restrained of his liberty4. cause of detention

2. Petition by common law spouse

- Velasco v. CA: common law spouse may file petition as she falls within the purview of the term “some person”, which means any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application

3. May be prosecuted by person restrained, or some person in his behalf, but if he repudiates the action taken, the writ will be denied.

Sec. 4. When writ not allowed or discharge authorized.If 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 judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.

1. Supervening events may bar release1.a. Issuance of process- Rule: writ of HC will NOT issue where the person alleged to be restrained is in custody of an officer under a process issued by competent court. (Ventura v. PP, (78))- even if arrest is illegal, supervening events may bar his release. What is to be inquired into is the legality of his detention as of the filing of the application for a writ.-Sayo v Chief of Police of Manila (48): SC ordered release of illegally restrained petitioner UNLESS they are now detained by virtue of a process issued by a competent court of justice.-Judicial Process 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 (Malaloan v. CA, (94))

1.b Filing of information- applying the last sentence of Sec4 Rule 102, the SC held that the writ of HC should not be allowed after the party sought to be released had been charged before any court.

2. Improper arrest or lack of preliminary investigation not valid ground for issuance of writ (Ilagan v. Enrile, 139 SCRA 349)- absence of preliminary investigation does not affect court’s jurisdiction over the case nor impair the validity of the information or otherwise render it defective.- remedy is not a petition for a writ of HC but a motion before the trial court to QUASH the warrant of arrest, and/or Information, or to ask for an investigation.- HC proceedings are not meant to determine criminal liability

3. Posting of bail is not a waiver- Velasco v CA: by filing for bail, he accepted court’s jurisdiction over his person. NO LONGER CONTROLLING.- Revised rules on crim pro: bail is not a bar to objections on illegal arrest, lack of or irregular preliminary investigation

4. Effect of filing deportation cases- HC, not prohibition, is the proper remedy for reviewing deportation proceedings.

5. Writ does not lie where there is remedy of appeal or certiorari6. Exceptional circumstances needed for grant of writ7. Petition for HC not proper

1. for asserting or vindicating denial of right to bail2. for correcting errors in appreciation of facts/appreciation of law

3. where TC with jurisdiction over cause, person and penalty, mistake by TC in appreciation of fact/law cannot be corrected by HC

8. Writ lies where court without jurisdiction to impose sentence

9. Person discharged on bail is not entitled to the writ- Tan Me Nio v. Collector of Customs, 34 Phil. 944. Writ of HC is remedy for one who is illegally detained; writ will not issue in behalf of person who is not actually restrained of his liberty. Person discharged on bail is not imprisoned or restrained of his liberty as to entitle him to the writ. Sec. 5. When the writ must be granted and issued A court or judge authorized 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 clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it.

1. Requisites for writ to issue1. person must be detained/restrained of his liberty2. restraint must be unlawful

2. Petitioner’s temporary release does not render petition for writ moot and academic- General Rule: release, whether permanent or temporary, renders petition for HC moot and academic

EXCEPT if there are restraints attached to his release which precludes freedom of actionSec. 6. To whom writ directed, and what to require. - In 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 judge designated in the writ at the time and place therein specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to an officer, and shall command him to take and have the body of the person restrained of his liberty before the court or judge 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 judge to show the cause of the imprisonment or restraint.

Sec. 7. How prisoner designated and writ served. The person to be produced should be designated in the writ by his name, if known, but if his name is not known he may be otherwise described or identified. The writ may be served in any province by the sheriff or other proper officer, or by a person deputed by the court or judge. 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 make return of service. If 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 exercising such custody.

Sec. 8. How writ executed and returned. – The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or, in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be brought before the court or judge; and the officer shall make due return of the writ, together

with the day and the cause of the caption and restraint of such person according to the command thereof.

Sec. 9. Defect of form. No 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 judge before whom he is to be brought.

1. Writ and Citation distinguished- Lee Yick Hon v Collector of Customs, 41 Phil 548. Collector of Customs required to appear and show cause why the writ of HC should not issue in favor of petitioner through a preliminary citation. However, he allowed petitioner to be deported. SC: no contempt since preliminary citation and real habeas corpus differ.

Sec. 10. Contents of return.When the person to be produced is imprisoned or restrained by an officer, the person who makes 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 judge before whom the writ is returnable, plainly and unequivocably: (a) Whether he has or has not the party in his custody or power, or under restraint; (b) If 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, execution, or other process, if any, upon which the party is held; (c) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; (d) If 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. 11. Return to be signed and sworn to. The return or statement shall be signed by the person who makes 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. 12. Hearing on return; Adjournments. – When the writ is returned before one judge, at a time when the court is in session, he may forthwith adjourn the case into the court, there to be heard and determined. The court or judge before whom the writ is returned or adjourned must immediately proceed to hear and examine the return, and such other matters as are properly submitted for consideration, unless for good cause shown the hearing is adjourned, in which event the court or judge shall make such order for the safekeeping of the person imprisoned or restrained as the nature of the case requires. If the person imprisoned or restrained is not produced because of his alleged sickness or infirmity, the court or judge 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. On the hearing the court or judge shall disregard matters of form and technicalities in respect to any warrant or order of commitment of a court or officer authorized to commit by law.

Sec. 13. When the return evidence, and when only a plea.If 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.

1. Failure to file reply to Return of writ warrants dismissal of petition, 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. (Florendo v. Javier, (79))

2. Burden of proving release is on respondent- release is an affirmative defense which must be proven by party alleging it. Also, evidence of release lied particularly within respondents power. (Dizon v. Eduardo (88))

Sec. 14. When person lawfully imprisoned recommitted, and when let to bail. – If 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. If 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 judge. If he be admitted to bail, he shall forthwith file a bond in such sum as the court or judge 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 cognizable to abide its order or judgment; and the court or judge shall certify the proceedings, together with the bond, forthwith to the proper court. If such bond is not so filed, the prisoner shall be recommitted to confinement.

Sec. 15. When prisoner discharged if no appeal.When the court or judge has examined 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. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released.

- SC restored original rule that period to appeal in HC is 48 hours, based on Sec39 BP 129, by amending Rule 41 sec3 of Rules on Civ Pro.

- Saulo v Brig. Gen. Cruz (60): time prescribed for perfection of appeal is not only mandatory but jurisdictional

- Kabigting v Director of Prisons (62): date on which the decisions was promulgated and/or 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.

- To perfect appeal, a notice of appeal is required to be filed with the Clerk of Court or Judge who rendered the judgment.

Sec. 16. Penalty for refusing to issue writ, or for disobeying the same. A clerk 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 make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) 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 judge as for contempt.

Sec. 17. Person discharged not to be again imprisoned.A 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 jurisdiction of the cause or offense; and a person who knowingly, 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 knowingly 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 judge granting writ as for contempt.

1. State without power to reserve re-arrest

- Toyoto v. Ramos, 139 SCRA 319. The moment a person is acquitted on a criminal charge he can no longer be detained or re-arrested for the same offense.Sec. 18. When prisoner may be removed from one custody to another.A 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 jail, or, by order of the proper court or judge, be removed from one place to another within the Philippines for trial, or in case of fire, epidemic, insurrection, or other necessity or public calamity; and a person who, after such commitment, makes, 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. 19. Record of writ, fees and costs. The proceedings upon a writ of habeas corpus shall be recorded by the clerk of the court, and upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires. The fees of officers and witnesses shall be included in the costs taxed, 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. When a person confined under color of proceedings in a criminal case is discharged, the costs shall be taxed against the Republic of the Philippines, and paid out of its Treasury; when a person in custody by virtue or under color of proceedings in a civil case is discharged, the costs shall be taxed against him, or against the person who signed the application for the writ, or both, as the court shall direct

RULE 103  CHANGE OF NAME

(NOTE: READ THIS RULE IN CONJUNCTION WITH RA 9048)

Sec. 1. Venue. A person desiring to change his name shall present the petition to the Court of First Instance of the province in which he resides, or, in the City of Manila, to the Juvenile and Domestic Relations Court.

1. Legal significance of person’s name (Republic v. CA (92))

- indicates the identity of a person- 2 parts: given name or proper name and surname or family name- given name may be freely selected, but surname is fixed by law- characteristics:

1. absolute2. obligatory3. fixed, unchangeable, immutable, and may be changed only for good cause and

by judicial proceedings4. outside the commerce of man5. imprescriptible

2. Law on adoption- use of surname of adopter by adopted child is both an obligation (Civil Code) and a right (PD 603, Family Code, Civil Code)

3. Purpose of rule (Republic v. CA (92))- CC Art 376 : No person can change his name or surname without judicial authority- to prevent fraud and to have, whenever possible, a record of the change

4. Nature of the proceeding- special proceeding to establish the status of a person involving his relation with others- proceeding in rem, thus strict compliance with all jurisdictional requirements, especially publication, is essential to vest the court with jurisdiction.- only the true or official name recorded in the civil register may be changed

5. Who may file petition- all natural persons regardless of status

6. Philippine citizenship not necessary- Yu v. Republic (66). ‘Person’ is a generic term not limited to Filipino citizens; rule is clear on requirements (see sec2: resident for at least 3 years in province where the petition is filed)

7. Change of name not a matter of right- Moore v. Republic (63). Matter of judicial discretion, to be exercised in light of the reasons adduced and the consequences that will likely follow

8. Only domicile aliens allowed to file petition (Ong Huan Tin v. Republic, (67))- it will not be of much benefit to him if he only stays for a short period of time-3rd persons and state is involved-change of name is not temporary in nature; new name may not be shunted aside at will

9. Petition for change of name an exception to the mandatory provisions of the civil code- the law fixes the surname that may be used by the person, and it may only be changed upon judicial permission granted in the exercise of sound discretion.

10. Real name of person in register- the real name of a person is that given him in the Civil Register, not the name he was baptized with or by which he has been known in the community, or which he has adopted.

11. Republic v. Lim (04). No judicial authority required for continuous use of surname which a person had already been using since childhood

12. No need for change of name by married women- Yasin v. Judge (95). In the case of annulment of marriage, or divorce, there is no need to file a petition for the resumption of maiden name or surname. The use of the husband’s surname is merely permissive which the wife may choose and continue to use except in case of legal separation.

Sec. 2. Contents of petition.A 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) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing; (b) The cause for which the change of the petitioner's name is sought; (c) The name asked for.

1. Strict compliance with requirementsa. need for verification – Tse v. Republic (67). No requirement that person should be of age and that if he is a minor the verification made by him is of no legal effectb. lack of verification to petition for change of name (Oshito v. Republic, (67)) – verification is a formal, not jurisdictional requirement, 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 lacking, or act on the pleading although it is not verified, if attending circumstances are such that strict compliance may be dispensed with- lack of verification not a ground for dismissing petition2. Remedy where the petition for change of name not verified - does not affect jurisdiction of court, but court must have required petitioner to verify petition.

3. Jurisdictional requirements (Secan Kok v. Republic, (73))1. verified petition must be published for 3 successive weeks in some newspaper of

general circulation in the province;2. both title or caption of the petition and the body shall recite:

a. name or names or aliases of applicantb. cause for which change of name is soughtc. new name asked for

- reason: change of name is matter of public interest- failure to comply with jurisdictional requirements renders proceedings a nullity

4. Need for Separate petition by proper party- petition must be filed by person desiring to change his/her name, even if it may be signed and verified by some other person in his behalf.- Republic v. Marcos (90): mother files petition for minor daughter. Court held petition premature; child must file petition when she shall have reached age of majority; 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.

5. All names or aliases must appear in caption of petition - (Secan Kok v. Republic, (73)): 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- Republic v. Marcos: omission is fatal to the petition

6. Need for proper or reasonable reason (Republic v. 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. Must show prejudice by official name- petitioner must show compelling reason AND that he will be prejudiced by the use of his true and official name (Chiu Ha Chiu v. Republic)

- valid grounds for change of name:1. name is ridiculous, dishonorable or extremely difficult to write or pronounce2. change results as a legal consequence, as in legitimation3. change will avoid confusion (Alfon v. Republic, (80))4. having continuously used and been known since childhood by a Filipino name,

unaware of alien parentage (Ang Chay v. Republic, (70))5. a sincere desire to adopt a Filipino 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 prejudice public interest. (Republic v. Wong, (92))

7.a Use of surname since childhood- doctrine that disallows change of name as would give the false impression of family relationship remains valid but only to the extent that the proposed change of name would in great probability cause prejudice or future mischief to the family whose surname it is or to the community in general.

8. Name in civil register is official name- Art 408 CC person’s birth must be entered in the civil register. - civil register is an official record of civil status of persons.- for purposes of an application for change of name under Art 376 CC, the only name that may be changed is the true or official name recorded in the civil register.

9. Prohibition Use of Aliases- CA 142: An Act to regulate the use of aliases – name must be a pseudonym for literary purposes or a name by which he had been known since his childhood or authorized by a competent court. Violation of CA 142 is punishable with imprisonment for 1-6 months.

Sec. 3. Order for hearing. If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix 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 week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice.

1. Purpose of publication- Ng Bui Kui v. Republic (58). to apprise public of pendency of petition so that those who may know of any legal objection to it might come forward with the information

2. Need for publication for court to obtain jurisdiction- Gil Go v. Republic (77): proceeding in rem

3. Contents of Petition- title of petition must include:

1. applicant’s real name2. his aliases or other names3. names sought to be adopted

- published order must reproduce title of petition with data already stated, and should contain: (Secan Kok, supra)

1. name or names of applicant2. cause for the change of name3. new name asked for

4. Effect of discrepancy in petition and published order (Jacobo v. Republic)

- defect is substantial, because it did not correctly identify the party to the proceedings.- misleads court and prejudiced the interest of the general public, as it was impossible for anyone with adverse interest to oppose his petition.- no strict compliance with legal requirement regarding publication = renders entire proceedings null and void, since court has not acquired jurisdiction.

5. Reason for inclusion of name sought to be adopted as well as aliases- ordinarily reader will only glance at title or caption

Sec. 4. Hearing. Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.

Sec. 5. Judgment. Upon satisfactory proof in open court on the date fixed 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, adjudge that such name be changed in accordance with the prayer of the petition.

1. Petition must be supported by weighty reasons- State with interest in names for purposes of identification. Change of name is mere privilege and not a right.

2. Court’s discretion- proper and reasonable cause is left to court’s discretion.- evidence need only be satisfactory to court and not all the best evidence available

3. Rule in changing name of minors- petition to change name of infant should be granted only when it is in the best interest of the child. (Calderon v. Republic, (67))- Gen. rule: change of name should not be permitted if it will give a false impression of family relationship to another where none actually exists. (Republic v. Marcos, (90))

4. Insufficient grounds for change of name1. separation of spouses (Laperal v. Republic, (62))2. no proof of prejudice by use of official name (Chiu Hap v. Chiu, (66))3. mere use and known by different name (Ong Te v. Republic, (62))4. no proof that true name evokes derisive laughter (Jacobo v. Republic)

Sec. 6. Service of judgment. – Judgments 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.

RULE 107  ABSENTEES

Sec. 1. Appointment of representative. When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power

conferred upon the agent has expired, any interested party, relative or friend, may petition the Court of First Instance 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. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court.

Basis : Art. 381 and 382 of the Civil Code

Sec. 2. Declaration of absence; who may petition.After the lapse of two (2) years from his disappearance and without any news about the absentee or since the receipt of the last news, or of five (5) 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) The spouse present; (b) The heirs instituted in a will, who may present an authentic copy of the same; (c) The relatives who would succeed by the law of intestacy; and (d) Those who have over the property of the absentee some right subordinated to the condition of his death.

Basis : Arts. 384 and 385 of the Civil Code Declaration may be made in:1) administration proceedings 2) petition to place management of conjugal properties in hands of the present spouse

Sec. 3. Contents of petition. – The 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) The jurisdictional facts; (b) The 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) The names and residences of creditors and others who may have any adverse interest over the property of the absentee; (d) The probable value, location and character of the property belonging to the absentee.

Sec. 4. Time of hearing; notice and publication thereof.When 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 fix a date and place for the hearing thereof where all concerned may appear to contest the petition. Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before the day of the hearing, and shall be published once a week for three (3) consecutive weeks 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.

Sec. 5. Opposition. Anyone appearing to contest the petition shall state in writing his grounds therefor, and served a copy thereof on the petitioner and other interested parties on or before the date designated for the hearing.

Sec. 6. Proof at hearing; order. At the hearing, compliance with the provisions of section 4 of this rule must first be shown. Upon 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. The judge shall take 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. In case of declaration of absence, the same shall not take effect until six (6) months after its publication in a newspaper of general circulation designated by the court and in the Official Gazette.

Basis of 2nd par: Art 386, Civil CodeSec. 7. Who may be appointed.In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If 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. In case of declaration of absence, the trustee or administrator of the absentee's property shall be appointed in accordance with the preceding paragraph.

Basis: Art. 383 of the Civil COdeSec. 8. Termination of administration. The trusteeship or administration of the property of the absentee shall cease upon order of the court in any of the following cases:

(a) When the absentee appears personally or by means of an agent; (b) When the death of the absentee is proved and his testate or intestate heirs appear; (c) When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title.

In 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.

Basis: Art. 389, Civil Code. 1. Declaration of absence is unnecessary when there are no properties Present spouse seeks that administration for all classes of property be transferred to

her/him2. No independent action for declaration of presumptive death The disputable presumption mat arise in a ction/special proceeding3. Exception: for purposes of marriage, under Art. 41, Family Code Purpose: protect present spouse from prosecution under Art. 349, RPC for bigamy Presumptions under Rule 131.3(w) are satisfactory if uncontradicted but must yield

to contradictory evidence4. Characteristics of summary proceedings in Family Law

Verified petition for truthfulness Notice of filing of petition for due process No periods set, discretionary on judge, but must be short Preliminary conference 1) with lawyers excluded to remove obstructions to

compromise,; 2) conducted personally by judge in the nature of inquisitorial hearing

Trial fiscal’s appearance not required Decision on basis of affidavits/documentary evidence No regard to technical rules for expediency Judgment immediately final and executory

Application: a) separation de facto under ACP or CPGb) declaration of presumptive deathc) delivery of presumptive legitimesd) disagreement in fixing family domicilee) disagreement in joint administration of ACP/CPGf) entrusting parental authority over foundlings/abandoned/neglected/abused

children to heads of children’s homes/orpahanages/etc.g) fixing of bond of parents

RULE 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL

REGISTRY

  The provision of this Rule may be deemed modified by REPUBLIC ACT NO. 9048 (March 22, 2001) AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE

OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER, AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL CODE OF THE PHILIPPINESSec. 1. Who may file petition Any 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 Court of First Instance of the province where the corresponding civil registry is located.

Cf. RA9048, Section 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname – No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations.

Effect : Such errors are removed from the ambit of Rule 108RA 9048 Rule 108

Clerical or typographical errors and change of first name or nickname

Substantial changes i.e. affects civil status, citizenship, nationality and Cancellation/ correction of substantial errors

Summary procedure Adversarial proceeding i.e. opposing parties, as distinguished from ex parte application, legal warning, opportunity to contest

Impugning legitimacy of child collaterally not allowed

Correction/cancellation of wrong filiation allowed i.e. not child of entrant at all

Period to file is from discovery of error

Separate form Rule 103 re: change of name; may not be substituted for one another for expediency

Sec. 2. Entries subject to cancellation or correction. Upon 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) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization (k) election, loss or recovery of citizenship (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.

Sec. 3. Parties. When 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. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix 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. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province.

Barco v. CA (04). Even though Barco was not impleaded in the petition, the defect was cured by compliance with §4, Rule 108, which requires notice by publication.The purpose of this section is to bind the whole world to the subsequent judgment on the petition. The sweep of the decision would cover even parties who should have been impleaded under §3, Rule 108, but were inadvertently left out.

A petition for correction is an action in rem, an action against a thing and not against a person. The decision on the petition binds not only the parties thereto but the whole world. It is validated essentially through publication which serves as a notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established.

Sec. 5. Opposition. The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto.

Jurisprudence : Lee v. CA citing Republic V. Valencia 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. “Chinese” to “Filipino”, “legitimate” to “illegitimate” which are not mere clerical errors, such may be corrected as long as R108, Secs. 3-5 are complied with, and the aggrieved parties have availed themselves of the appropriate adversary proceedings

Petition for correction is an action in rem

Entries in Birth certificates relating to citizenship of the father from “Chinese” to “Filipino” allowed under CA 473, Sec. 15 (extending Philippine citizenship to minor children of those naturalized under LOI 270)

Other cases citing this rule: Co v. Civil Registrar (04), Elosida v. LCR (02)

Sec. 6. Expediting proceedings.The court in which the proceeding is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings.

Sec. 7. Order.After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record.

 

RULE 109  APPEALS IN SPECIAL PROCEEDINGS

Sec. 1. Orders or judgments from which appeals may be taken. An interested person may appeal in special proceedings from an order or judgment rendered by a Court of First Instance or a Juvenile and Domestic Relations Court, where such order or judgment: (a) Allows or disallows a will; (b) Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; (c) Allows 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 executor, administrator, trustee or guardian; (e) Constitutes, 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, except that no appeal shall be allowed from the appointment of a special administrator; and (f) Is the final order or judgment 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.

Mode of appeal is by record on appeal, the period is 30 days Includes an appeal in liquidation proceedings against an insolvent corporation Only an interested person may appeal i.e. direct and material interest e.g. an

executor, lawful heirs, surety Certiorari and mandamus not substitute for appeal

Cases appealable a) by surety from court approval/disapproval of accountingb) by heir approving a money claimc) order for a license to sell real estate in administration proceedingsd) order against bonde) order authorizing administrator to contract an obligation/ mortgage propertyf) order appointing administratorg) order annulling appointment of guardianh) order removing guardian

i) inventories and claim against the estatej) by a person declared incompetentk) order refusing to intervene in special proceedingsl) ruling on declaration of heirs

Cases not appealable (interlocutory orders)a) directing administrator to take action to recover amount due to estateb) relating to inclusion of items of property from inventoryc) appointment of special administrator

Sec. 2. Advance distribution in special proceedings. Notwithstanding 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 may deem proper and just, 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 90 of these rules.

APPENDIX “A”

RULE ON GUARDIANSHIP OF MINORS

Section 1. Applicability of the Rule. – This Rule shall apply to petitions for guardianship over the person or property, or both, of a minor.

The father and the mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on guardianship.

Sec. 2. Who may petition for appointment of guardian. – On grounds authorized 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 Family Court for the appointment of a general guardian over the person or property, or both, of such minor. The petition may also be filed by the Secretary of Social Welfare and Development and by the Secretary of Health in the case of an insane minor who needs to be hospitalized.

Sec. 3. Where to file petition. – A petition for guardianship over the person or property, or both, of a minor may be filed in the Family Court of the province or city where the minor actually resides. If he resides in a foreign country, the petition shall be flied with the Family Court of the province or city where his property or any part thereof is situated.

Sec. 4. Grounds of petition.-The 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 Is found unsuitable to exercise parental authority; or

(d)            when the best interests of the minor so require.

Sec. 5. Qualifications of guardians. – In 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 exercise the powers and duties of a guardian for the full period of the guardianship;

(f) lack of conflict of interest with the minor; and

(g)           ability to manage the property of the minor.

Sec. 6. Who may be appointed guardian of the person or property, or both, of a minor. – In 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 In case several grandparents survive, the court shall select any of them taking Into account all relevant considerations;

(b)           the oldest brother or sister of the minor over twenty-one years of age, unless unfit or disqualified;

(c)           the actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; and

(d)           any other person, who in the sound discretion of the court, would serve the best interests of the minor.

Sec. 7. Contents of petition. – A petition for the appointment of a general guardian must allege the following:

(a)           The jurisdictional facts;

(b)           The name, age and residence of the prospective ward;

(c)           The ground rendering the appointment necessary or convenient;

(d)           The death of the parents of the minor or the termination, deprivation or suspension of their parental authority;

(e)           The remarriage of the minor’s surviving parent;

(f) The names, ages, and residences of relatives within the 4th civil degree of the minor, and of persons having him in their care and custody;

(g)           The probable value, character and location of the property of the minor; and

(h)           The name, age and residence of the person for whom letters of guardianship are prayed.

The petition shall be verified and accompanied by a certification against forum shopping. However, no defect in the petition or verification shall render void the issuance of letters of guardianship.

Sec. 8. Time and notice of hearing. – When a petition for the appointment of a general guardian is filed, the court shall fix 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. 9. Case study report. – The court shall order a social worker 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. The social worker may intervene on behalf of the minor if he finds that the petition for guardianship should be denied.

Sec. 10. Opposition to petition. – Any interested person may contest the petition by filing a written opposition based on such grounds as the majority 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. – At the hearing of the petition, it must be shown that the requirement of notice has been complied with. The prospective ward shall be presented to the court. The court shall hear the evidence of the parties in support of their respective allegations. If warranted, the court shall appoint a suitable guardian of the person or property, or both, of the minor.

At 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. 12. When and how a guardian of the property for non-resident minor is appointed; notice. – When the minor resides outside the Philippines but has property in the Philippines, any relative or friend of such minor, or any one interested in his property, in expectancy or otherwise, may petition the Family Court for the appointment of a guardian over the property.

Notice of hearing of the petition shall be given to the minor by publication or any other means as the court may deem proper. The court may dispense with the presence of the non-resident minor.

If 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.

Sec. 13. Service of final and executory judgment or order. – The final and executory judgment or order shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds 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.

Sec. 14. Bond of guardian; amount; conditions.-Before he enters upon the execution of his trust, or letters of guardianship issue, an appointed guardian may be required to post a bond in such sum as the court shall determine and conditioned as follows:

(a)     To make and return to the court, within three months after the issuance of his letters of guardianship, a true and complete Inventory of all the property, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf;

(b)     To faithfully execute 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)     To render a true and Just 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 expiration 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)     To perform all orders of the court and such other duties as may be required by law.

Sec. 15. Where to file the bond; action thereon. – The bond posted by a guardian shall be filed in the Family Court and, In 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.

Whenever necessary, the court may require 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 injury may result therefrom to those interested in the property.

Sec. 16. Bond of parents as guardians of property of minor. – lf the market value of the property or the annual Income of the child exceeds P50,000.00, the parent concerned shall furnish a bond In 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.

A verified petition for approval of the bond shall be flied in the Family Court of the place where the child resides or, if the child resides in a foreign country, in the Family Court of the place where the property or any part thereof is situated.

The petition shall be docketed as a summary special proceeding In which all incidents and issues regarding the performance of the obligations of a general guardian shall be heard and resolved.

Sec. 17. General duties of guardian. – A 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. The guardian of the property of a nonresident minor shall have the management of all his property within the Philippines.

A guardian shall perform the following duties:

(a)            To pay the just debts of the ward out of the personal property and the income of the real property of the ward, If the same is sufficient; otherwise, out of the real property of the ward upon obtaining an order for its sale or encumbrance;

(b)            To 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 just 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)            To 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 authorized by the court to do so;

(d)            To consent to a partition of real or personal property owned by the ward jointly 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)            To 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 required upon the application of an interested person;

(f) To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by

the ward within three months after such discovery, succession, or acquisition; and

(g)            To 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 required.

Sec. 18. Power and duty of the court – The court may:

(a)            Request the assistance of one or more commissioners in the appraisal of the property of the ward reported in the initial and subsequent inventories;

(b)            Authorize reimbursement to the guardian, other than a parent, of reasonable expenses incurred in the execution of his trust, and allow payment of compensation for his services as the court may deem just, not exceeding 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

(c)            Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the property at the ward, require any person suspected of having embezzled, concealed, or disposed of any money, goods or interest, or a written instrument belonging to the ward or his property to appear for examination concerning any thereof and issue such orders as would secure the property against such embezzlement, concealment or conveyance.

Sec. 19. Petition to sell or encumber property.-When 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 authorizing the sale or encumbrance of the property.

Sec. 20. Order to show cause. – If the sale or encumbrance is necessary or would be beneficial to the ward, the court shall order his next of kin and all person/s 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. 21. Hearing on return of order; costs. – At the time and place designated in the order to show cause, the court shall hear the allegations and evidence of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or deny the petition as the best interests of the ward may require.

Sec. 22. Contents of order for sale or encumbrance and its duration; bond. – If, after full examination, 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 expended for the maintenance or the

education of the ward, or invested as the circumstances may require. The order shall specify the grounds for the sale or encumbrance and may direct that the property ordered sold be disposed of at public sale, subject to such conditions as to the time and manner of payment, and security where a part of the payment is deferred. The 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 expedient, require an additional bond as a condition for the sale or encumbrance. The authority to sell or encumber shall not extend beyond one year, unless renewed by the court.

Sec. 23. Court may order investment of proceeds and direct management of property. – The court may authorize and require 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 make such other orders for the management, investment, and disposition of the property and effects, as circumstances may warrant.

Sec. 24. Grounds for removal or resignation of guardian. – When 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 make a return for thirty days after it is due, the court may, upon reasonable notice to the guardian, remove him as such and require him to surrender the property of the ward to the person found to be lawfully entitled thereto.

The court may allow the guardian to resign for justifiable causes.

Upon the removal or resignation of the guardian, the court shall appoint a new one.

No 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. 25. Ground for termination of guardianship. – The 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. The guardian shall notify the court of such fact within ten days of its occurrence.

Sec. 26. Service of final and executory judgment or order. – The final and executory judgment or order shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the province or city where his property or any part thereof is situated. Both the Local Civil Registrar and’ the Register of Deeds shall enter the final and executory judgment or order in the appropriate books in their offices.

Sec. 27. Effect of the rule. – This Rule amends Rules 92 to 97 inclusive of the Rules of Court on guardianship of minors. Guardianship of incompetents who are not minors shall continue to be under the jurisdiction of the regular courts and governed by the Rules of Court.

Sec. 28. Effectivity. -  This Rule shall take effect on May 1, 2003 following its publication in a newspaper of general circulation not later than April 15, 2003.

APPENDIX “B”

Rule on Commitment of Children

SECTION 1. Objective, -The objective of this Rule is to ensure that every effort is exerted to promote the child's welfare and enhance his opportunities for a useful and happy life, Toward this end, this Rule seeks to protect the child from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to his development.

SEC. 2. Interpretation. -The best interests of the child shall be the paramount consideration in all actions concerning him, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities and legislative bodies consistent with the United Nations Convention on the Rights of the Child,

SEC. 3. Definition of Terms. -

(a) "Child" is a person below eighteen years of age.

(b) "Department" refers to the Department of Social Welfare and Development,

(c) "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.

(d) "Abandoned child" is one who has no proper parental care or guardianship, or whose parents or guardian has deserted him for a period of at least six (5) continuous months.

(e) "Neglected child" is one whose basic needs have been deliberately unattended to or inadequately attended to, physically or emotionally, by his parents or guardian.

(f) "Physical neglect" occurs when the child is malnourished, ill-clad and without proper shelter.

(g) "Emotional neglect" occurs when a child is raped, seduced, mal-treated, exploited, overworked or made to work under conditions not conducive to good health; made to beg in the streets or public places, or when placed in moral danger, or exposed to drugs, alcohol, gambling, prostitution and other vices.

(h) "Disabled child" includes mentally retarded, physically handicapped,

emotionally disturbed and mentally ill children, children with cerebral palsy and those with similar afflictions.

(i) "Mentally retarded child" is one who is (1) socially incompetent, that is, socially

inadequate, occupational^ incompetent and unable to manage his own affairs; (2) mentally subnormal; (3) intellectually retarded from birth or early age; (4) retarded at maturity; (5) mentally deficient as a result of constitutional origin through heredity or diseases or (6) essentially incurable.

(j) "Physically handicapped child" is one who is crippled, deaf-mute, blind, or otherwise suffers from a defect which restricts his means of action or communi-cation with others.

(k) "Emotionally disturbed child" 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 complexes.

(I) "Mentally ill child" is one with any behavioral disorder, whether functional or organic, which is of such a degree of severity as to require professional help or hospitalization.

(m) "Commitment" or "surrender of a child" is the legal act of entrusting a child to the care of the Department or any duly licensed child- placement or child-caring agency or individual by the court, parent or guardian or any interested party.

(n) "Involuntarily committed child" is one whose parents have been permanently and judicially deprived of parental authority due to abandonment; substantial, continuous, or repeated neglect; abuse; or incompetence to discharge parental responsibilities in accordance with Section 4 herein.

(o) "Voluntarily committed child" is one whose parents knowingly and willingly relinquished parental authority to the Department or any duly licensed child-placement or child-caring agency or individual in accordance with Section 3 herein.

(p) "Child-placing or child-placement agency" refers to a private non-profit or charitable institution or government agency duly licensed and accredited by (he Department 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.

(q) "Child-caring agency" refers to a private non-profit or charitable institution or government agency duly licensed and accredited by the Department that provides twenty-four hour residential care services for abandoned, orphaned, neglected, involuntarily or voluntarily committed children.

(r) "Guardian 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) "Case Study Report" is a written report of the result of an investigation conducted by a social worker as to the socio-cultural, economic and legal status or condition of the child sought to be committed. It shall include among others his developmental age, educational attainment, family and social relationships, the quality of his peer group, his family's strengths and weaknesses and parental control over him. The report is submitted to the Family Court to aid it in its evaluation of whether the child ought to be committed to the care of the

Department or any duly licensed child-placement or child-caring agency or individual.

SEC. 4. –

(a) Who may file. - The Secretary of the Department or his authorized representative or any duly licensed child-placement or child-caring agency having knowledge 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) Venue. - The petition shall be filed with the Family Court of the province or city in which the parent or guardian resides or where the child is found.

(c) Contents of Verified Petition. -The petition must state:

1. The names of the parents or guardian and their place of residence. If the child's parents are unknown, petitioner must allege that diligent efforts have been exerted to locate them. It said parents are deceased, petitioner shall attach a certified true copy of their death certificate;

2. The facts showing that the child is dependent, abandoned, or neglected;

3. The facts showing who has custody of the child at the time of the filing of the petition; and

4. The name, address and written consent of the Department 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 Time for Hearing. - If the court is satisfied that the petition is sufficient in form and substance, it snail direct the clerk 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 (5) days before the date of the hearing. The office of the public prosecutor shall be directed to immediately transmit the summons to the prosecutor assigned to the Family Court concerned.

If 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 Worker. - After the court sets the petition for hearing in accordance with

Sub-section (d) above, it shall direct the social worker 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 Department or any duly licensed child-placement or child-caring agency or individual. The report shall bear the signature of the social worker on every page.

(f) Guardian Ad Litem of Child. - If 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. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs and child development. A member of the Philippine Bar may be appointed guardian ad litem.

(g) Child's Right to Counsel - The court, upon request of the child capable of forming his own views or upon request of his guardian ad litem, shall appoint a lawyer to represent him in the proceedings.

(h) Duty of Public Prosecutor. - The provincial or "city prosecutor shall appear for the State and ascertain if there has been due notice to all parties concerned and that there is justification for the declaration of dependency, abandonment or neglect.

(i) Hearing. - The 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.

(j) Judgment. - If, after the hearing, the court shall find the child to be dependent, abandoned, or neglected, it shall render judgment committing him to the care and custody of the Department or any duly licensed child-placement or child-caring agency or individual until he reaches the age of eighteen (18), The judgment shall likewise make proper provisions for the custody of the property or money belonging to the committed child.

If the child is committed to the Department, it shall notify the court within thirty (30) 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.

However, 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, subject to supervision and direction of the Department.

(k) Visitation or Inspection. - Any duly licensed child-placement or child-caring agency or individual to whom a child has been committed by the court shall be subject to visitation or inspection by a representative of the court or of the Department, as the case may be or of both, to determine whether the welfare and interests of the child are being served,

(I) Report of Person or Institution. - Any duly licensed child-placement or child-caring agency or individual to whom a child has been committed by judicial order may at any time be required by the court to submit a report, containing all necessary information for determining whether the welfare of the child is being served.

(m) Temporary Custody of Child. - The 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 request, for a period not exceeding one month at a time. The court may order the social worker to submit a case study report to aid it in evaluating whether such temporary custody shall be for the best interests of the child. The period of temporary custody of the child may be extended by the court for a period not exceeding 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.

The court, motu proprio, or upon request 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.

After 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 Custody. - If the child is committed to the Department, 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. The Department shall notify the court of any change in custody of the child,

When conflicting interests arise among child-placement or child-caring agencies, the court which granted the involuntary commitment of the child, upon motion of the Department or any of the agencies concerned, shall order the change of commitment of the child.

(o) Removal of Custody. - A motion to remove custody of a child may be filed by an authorized representative of the Department with knowledge 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 3 (e) of this Rule. The court shall set the motion for hearing with notice to the public prosecutor and the court-designated social worker. If 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 child-caring agency or individual.

In the same proceeding, the court may suspend or revoke the license of the agency or individual found guilty of such neglect depending upon the gravity or frequency

of the offense.

(p) Restoration of Parental Authority After Involuntary Commitment. -

(i) Who may file; Ground. - The parents or guardian of a child committed to the care of a person, agency or institution by judicial 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 take proper care and custody of said child, provided, however, that the child has not yet been adopted.

(ii) Notice of Hearing. - The court shall fix the time and date for the hearing of the motion, which shall not be earlier than thirty (30) days nor later than sixty (60) 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 worker, at least five (5) days before the date of hearing.

(iii) Hearing. - At the hearing, any person may be allowed to intervene at the discretion of the court to contest the right to the relief demanded. Witnesses may be called and examined by the parties or by the court motu proprio.

(iv) Resolution. - If it is found that the cause for the commitment of the child no longer exists and that the movant is already able to take proper care and custody of the child, the court, after taking 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 judicial order and restoring parental authority to the movant,

q) Jurisdiction for Prosecution of Punishable Acts. - The Family Court which granted the involuntary commitment shall have jurisdiction over the prosecution of a child who left without prior permission from the person or institution to which he has been judicially committed or the person under whose custody he has been judicially committed in accordance with Sub-section (m) of Section 4 of this Rule. It shall likewise have jurisdiction over the person who induced the child to leave such person or institution, except in case of actual or imminent grave physical or moral danger to the child. The Family Court which granted the involuntary commitment shall also have jurisdiction over the prosecution of parents or guardians of the child who may be held liable under Articles 59 and 60 of P.D. No. 603 and Sections 9, 10 and 31 of R.A. No. 7610.

SEC. 5. Voluntary Commitment of a Child to an Institution or Individual. - The parent or guardian of a dependent, abandoned or neglected child may voluntarily commit him to the Department or any duly licensed child- placement or child-caring agency or individual subject to the rules of the Department. However, 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 notarized and signed in the presence of an authorized representative of the Department after counseling and other services have been made available to encourage the child's parents to keep the child.

(a) Petition for Removal of Custody. -

(i) Who may file; Ground. - The parents or guardian who voluntarily committed the child, or in their absence or failure, any person with knowledge 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 3 (e) of this Rule. A 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 unjustified.

(ii) Venue. - The petition shall be filed with the Family Court 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 Verified Petition - The petition must state:

The name and address of the child-placement or child-caring agency or individual to whose custody the child has been voluntarily committed;

The facts showing that the child has been neglected by the agency or in cases where the voluntary commitment was unjustified, that the parents of the child are actually capable of taking care and custody of the child;

The 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.

The facts showing that petitioner has exhausted the administrative remedies available to him,

(iv) Notice of Hearing. - If the petition is sufficient in form and substance, the court shall set the same for hearing with notice to the Department, the public prosecutor, the court-designated social worker, the agency or individual to whom the child has been committed and in appropriate cases, the parents of the child.

(v) Judgment. - If 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 child-placement or child-caring agency or individual.

The court, in the same proceeding may, after hearing the comment or recommendation of the Department, suspend or revoke the license of the agency or individual found guilty of such neglect depending upon the gravity or frequency of the offense.

(b) Restoration of Parental Authority After Voluntary Commitment. - The restoration of rights of the parent or guardian over the child who has been voluntarily committed shall be governed by the rules of the Department, provided, however, that the petition for restoration is filed within six (6) months from the date of voluntary commitment. In case the Department 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 4 (p) of this Rule.

(c) Jurisdiction for Prosecution of Punishable Acts. - The Family Court of the place where the child may be found or where the duly licensed child-placement or child-caring agency or individual is located shall have jurisdiction over the prosecution of a child who left without prior permission from the person or institution to which he has been voluntarily committed. It shall likewise have jurisdiction over the person who induced the child to leave such person or institution, except in case of grave actual or imminent physical or moral danger, to the child. The same Family Court shall also have jurisdiction over the prosecution of parents or guardians of the child who may be held liable under Articles 59 and 60 of P.O. No, 603 and Sections 9, 10 and 31 of R.A. No. 7610.

SEC. 6. Petition for Commitment of a Disabled Child. -

(a) Who may file. - Where 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 Department, 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.

The 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 stake,

(b) Venue. - The petition for commitment of a disabled child shall be filed with the Family Court of the place where the parent or guardian resides or where the child is found.

(c) Contents of Verified Petition. - The petition for commitment must stale the following:

(1) The facts showing that the child appears to be mentally retarded, physically handicapped, emotionally disturbed, mentally ill, with cerebral 'palsy or with similar afflictions and needs institutional care;

(2) The name of the parents and their residence, if known, or if the child has no living parent, the name and residence of the guardian, if any; and

(3) The fact that the parents or guardian or any duty licensed disabled child-placement or child-caring agency, as the case may be, has opposed the commitment of such child;

(4) The name and written conformity of the institution where the child is to be committed.

(5) An estimate of the costs and other expenses of maintaining the child in the institution.

The verified petition shall be sufficient if based upon the personal knowledge of the petitioner.

(d) Order of Hearing; Notice. - If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix the date of the hearing thereof, and a copy of such order shall be served on the child alleged to be mentally retarded, physically handicapped, emotionally disturbed, mentally ill, with cerebral palsy or with similar afflictions and on the person having charge of him or any of his relatives residing in the province or city as the court may deem proper.

The order shall also direct the sheriff or any other officer of the court to produce, if necessary, the alleged disabled child on the date of the hearing.

(e) Hearing and Judgment. - If the court finds that the allegations of the petition have been established and that institutional care of the child is for his best interests or the public welfare and that his parents, or guardian or relatives are unable for any reason whatsoever to take proper care of him, the court shall order his commitment to the proper institution for disabled children. The court shall likewise make proper provisions for the custody of the property or money belonging to the committed child.

The expense of maintaining a disabled child in the institution to which he has been committed shall be borne primarily by the parents or guardian and secondarily, by such disabled child, if he has property of his own.

In all cases where the expenses for the maintenance of the disabled child cannot be paid in accordance with the immediately preceding paragraph, the Department shall bear the expenses, or such part thereof as may remain unpaid.

The court shall furnish the institution to which the child has been committed with a copy of its judgment, together with ail the reports and other data pertinent to the case.

(f) Discharge of Judicially Committed Disabled Child. - Upon motion of the parent, guardian or institution to which the child has been judicially committed under this Rule, the court, after hearing, shall order the discharge of such child if it is established and certified by the Department that:

(1) He is no longer a danger to himself and the community;

(2) He has been sufficiently rehabilitated from his physical handicap or if of working age, is already fit to engage in gainful occupation; or

(3) He has been sufficiently relieved of his psychological, mental and emotional problems and is ready to assume normal social relations,

SEC. 7. Effectivity. - This rule shall take effect on April 15, 2002 after its publication in a newspaper of general circulation not later than March 15, 2002.