Spec Pro Transcription

Lecture Notes: Special Proceedings (Atty.
Leilani Yang-yang Espejo)

Transcribed by and Property of: Hanniyah Sevilla
Okay, so our subject is special proceedings and this is part of your remedial law.
Rule 72
Sec. 1. Subject matter of special proceedings. - Rules of special proceedings are provided for in the following
cases:
(a) Settlement of estate of deceased persons;
this may cover testate or intestate proceedings. In your wills and succession, we discussed probate, partition..
but those refer to the substantive law on the matter. With respect to the procedure, we have the spec. pro.
(b) Escheat;
so when a person dies without heirs, meaning no heirs in the direct line and the collateral line upto 5th degree,
his properties are escheated by the state.
(c) Guardianship and custody of children;
So the guardian over the persons and properties of the ward; how to become a guardian, who are qualified to
become guardians.
(d) Trustees;
again, covered by spec pro. although trust is covered in your Bus. Org.
(e) Adoption;
although the rules on adoption have been modified. We have the domestic adoption law and the inter-country
adoption. And also the rules under the rules of court are modified based on these laws. You have to get the updated
version.
(f) Rescission and revocation of adoption;
this has also been modified because under the laws, the adopter cannot seek the revocation of the adoption.
As we will see later on, only the adopted/adoptee can seek rescission.
(g) Hospitalization of insane persons;
still applicable, although i have not yet encountered this type of petition.
(h) Habeas corpus; -(i) Change of name;
although there are certain modifications by RA 1948 (corrections in the first name, spelling..) and RA 9255,
illegitimate child can now carry the surname of the father.
(j) Voluntary dissolution of corporations;
this will be discussed in your corpo, because the jurisdiction has been transferred.
(k) Judicial approval of voluntary recognition of minor natural children; -- no longer applicable.
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation or correction of entries in the civil registry.
again modified.
Other special proceedings are governed by other special laws, i.e. Naturalization. It is considered as spec. pro but it is not covered by the Rules of
Court.
Okay, so based on your recollection, what is Special Proceedings? Diba this was discussed in your Civ Pro.
So it is a remedy by which a party seeks to establish a status, right or a particular fact.
For example, you file a petition for adoption, so you want that child to be considered as your legitimate child. So that is status.
Or a right.. for example the will, you want that probated. And the general rule is when you seek to probate a will, you don't have an opponent, unless
of course, there are oppositors. So based on that will, the heirs or legatees or devisees are established.
So a fact.. declaration of absence, and you want that person to be declared as an absentee.
In an ordinary civil action so it means an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection
of a right or for the prevention or redress of a wrong.
For example, A and B entered into a particular contract. A is the seller and B is the buyer. Now after B paid the price, A refused to deliver the parcel of
land subject matter of sale. So B can file an action for specific performance to compel A to deliver the land. So here, you seek to enforce ur right as a
buyer of the land.
So how do you distinguish spec pro from an ordinary civil action? (aside from the definition)
1. (AS TO NATURE OF PROCEEDINGS) So special proceedings as a general rule is not adversarial in character. You have no opponent. In the
examples above, you have no opponents as a general rule. Because there may be instances where the proceedings become adversarial.
Actions are adversarial in nature. There is always an adverse party. Plaintiff, defendant, petitioner and respondent.
Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

2. (AS TO REQUIREMENT OF FORMAL PLEADINGS; PUBLICATION) In civil actions, formal pleadings are required. In spec pro, formal pleadings
are not required.
So in civil actions, you have the Complaint and then the Answer, and then the Reply. In spec pro, there are no complaints.. there is just a petition,
and usually there is no reply, no answer -- as a general rule. There is just a requirement there is a publication requirement just to constitute as notice
to the other parties who may want to intervene in the proceedings. So the publication itself is the constructive notice.
In actions, there is no publication requirement. The other party is issued a summons and based on that summons , he will file his answer.
3. (AS TO EFFECT OF DECREE OF JUDGMENT) In spec pro, as a general rule, the decree or judgment in that proceeding is in rem. It binds the
whole world. But usually in civil actions, they're not in rem, but in personam.. they bind only those who are parties in the action. But again this is just
the general rule in spec. pro.
SETTLEMENT OF ESTATE OF DECEASED PERSONS
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 (RTC now) 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
This section talks of the venue, and not the jurisdiction. So where the petition should be filed -- it depends on where the deceased is an inhabitant of
the Phil (meaning resident of the Phil) at the time of his death. So regardless of whether or not he is a citizen or not, basta he is a resident of the Phil.
Please take note of the changes brought by BP 129. It is no longer the CFI ha. As of the present, the jurisdiction of the the MTCCs (outside Metro
Manila) is upto Php. 300,000.00.. so more than that you file it in the RTC.
So the value of the estate will determine whether or not the petition should be filed in the MTCCs or in the RTC. But here we are talking of the venue.
So MTC or RTC of the place where he resided at the time of his death.
Or if he is not a resident of the Phil at the time of his death, so in the place where he has an estate.
By residence, we are talking of actual, physical residence. So there's no problem if he is a resident at the time of his death because he can only be a
resident of one place. But what about if he is a nonresident and he has several estates, in Davao, Cebu, Zamboanga.. So you can file the petition at
any of these places.
Can you file them at the same time? The rule says "he court first taking cognizance of the settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts." So first come first served. So kung asa sya ma-file ug una, kato na sya.
Now, again we discussed before in succession that if a person dies with a will, his will should be probated. Probate is mandatory. What if there is
also an instestate proceeding instituted, like in the case of RODRIGUEZ VS. BORJA which we have discussed -So here, the intestate proceedings were instituted ahead of the testate proceedings. So which proceedings should prevail? Should it be the intestate
because it was filed ahead? So we said that it should be the testate proceedings because again, if a person dies with a will, as much as possible, his
estate must be settled in accordance with his will.
So the intestate proceedings should be suspended and the testate proceedings shall be heard. Or the two cases may be consolidated but
again, the testate proceedings shall be given preference. So only when the court determines that the will cannot be admitted to probate
can the intestate proceedings continue.
What happens if the petitioner, for example the heirs of the decedent who is a resident of the Philippines, he dies, for example in DC -- so that was
his last residence, but the petition was filed in Tagum. His estate consists of 1M, so dapat RTC. But instead of filing it in DC where he last resided, it
was instead filed in Tagum City. What happens to the petition. For example, the probate court granted the probate of the will. Is the decree of that
(Tagum) court void?
No, because it is just a question of venue. Jurisdiction is with the RTC. Venue if it is not questioned, is considered waived. But if for example, the
petition was filed in MTC of DC where he last resided, and the MTC allowed the probate, the status of that decree is void for want of jurisdiction.
I know that you already know the difference between venue and jurisdiction. Diba venue can be subject to agreement of the parties, but jurisdiction
cannot be subject to stipulation of the parties because it is provided by law.
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
So if the decedent is the husband or the wife.. so he/she is married, then of course, under the Family Code, we have the Absolute Community
Property and under the Civil Code, we have the Conjugal Partnership. So the properties of the husband and wife should be liquidated upon the
death of either of them. So where should the liquidation be done?
It should be done in the in/testate proceeding of the deceased spouse. H and W they own properties worth 1M, now H dies. So, how do we compute
the estate of H? Is it 1M? It is NOT 1M because again we have to observe the rules on Absolute Community Prop. or Conjugal Pship of gains as the
case may be.

So that ACP or CPG shall be liquidated in the in/testate proceeding of H, the deceased spouse. In that case, H's share should only be 500,000. So
that is the only subject of his estate. So you compute the legitime based on that estate.
If both died already, so in the in/testate of both of them.
What happens if there is an ACP and then one of them died, and no in/testate proceedings is instituted with respect to the estate of that spouse? So
H and W, H died and wala na-settle iyang estate. Si W nag-marry ulit. What is the status of the property of W with respect to her new spouse? There
is a complete separation of property if no prior liquidation or dissolution of property is made during the first marriage.
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
Although we said that in spec pro, it is not adversarial and that it is not actually the same as civil actions wherein there is an adverse party, but even
so, the probate court may issue writs and processes to compel the attendance of witnesses. Because in the establishment of fact, status or a
particular right, you will have to require the testimony of witnesses. The Court can even issue the warrant or the imprisonment of the person who
refuse to comply.. so these are within the powers of the probate court.
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.
Again, we discussed before in succession, that death may be actual or presumed.
So with respect to a person who is presumed dead.. Again as a review, when can a person be presumed dead? It depends, if ordinary presumption
-- as a gen. rule, 7 years would suffice for a person to be considered presumed dead. But for purpose of opening his succession, meaning
distribution of his properties to the heirs, we require 10 years. But if a person disappears at the age of 75, then an absence of 5 years would be
sufficient for him to be presumed dead.
Under extraordinary presumption? 4 years. When will this arise? danger of death, war, so you review that.
Now what happens if he re-appears? The rules says that he shall be entitled to the balance of his estate after the payment of all his debts. So the
payment of his debts shall not be disturbed. Because anyway, even if he is dead or alive, he will have to pay his debts.
For a presumption of death, the court will be the one to declare a person dead. So in that same proceeding, the person who resurfaces may just file
a motion in that same court where he was presumed dead. So it should be the same court, but it is just a mere motion.
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.
So extrajudicial settlement by agreement between heirs, when can this be done?
1. If the decedent left no will and no debts, and all the heirs are of age or if there are minors, they are represented by their legal/judicial
representatives, and the extrajudicial partition is in a public instrument duly registered in the Register of Deeds (ROD). When you say public
doc, the instrument where the extrajudicial settlement is done is notarized or acknowledged before a person authorized to administer oaths.
So this is the general rule with respect to extrajudicial settlement. For example a person dies with a will? Can there be an extrajudicial
settlement? So the heirs will just disregard the will and they will just extrajudicially settle the properties? No, this cannot be done because again, the
probate of the will is mandatory. So if a person dies with a will, the will has to be probated.
2. But there are certain instances wherein SC did not disturb the extrajudicial settlement of the estate of the heirs of a person who died with a will.
And that is when the extrajudicial settlement is in accordance with the will and that no legitimes are impaired.
But in practice, the heirs do not want to probate the will anymore. Why? Because even if there are no oppositors, the probate is so expensive. The
docket fees will depend upon the gross value of the estate. So it is expensive.

3. If there is only one heir, of course there is no more need for extrajudicial settlement because this pertains to two or more heirs. If you are an only
heir, you can just execute an affidavit of self-adjudication, adjudicating to yourself the entire properties.
And the presumption is the decedent left no debts if no creditors file a petition for letters of administration within 2 years after the death of the
decedent. Would this mean that no extrajudicial settement could be done until after 2 years from the death of the decedent? No, this just gives you
the presumption, if no creditor files letters of administration within 2 years.
So if you are very sure that there are no creditors, so extra-judicially settle na lang kayo.
Now, in extrajudicial settlement, you are actually dividing or partitioning the properties among the heirs. What if the partition is not made in a public
instrument? Sa private instrument ra sya, handwritten or worse, made orally. Is that partition valid? Yes, it is still valid as long as no creditors are
prejudiced. Because the requirement of public instrument recorded in the register of deeds is to serve as constructive notice and to prevent stale of
claim. So if there are no creditors, why will you need to notify if there is no one to be notified? So this requirement and the publication is for the
protection of the creditors and the heirs against stale claims.
So aside from registration with the ROD, it has to be published in a newspaper of general circulation.
The last sentence says: "but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice
thereof. "
So meaning, an heir was not a participant of the extrajudicial partition, or for example was not notified actually or constructively, he is not bound by
that settlement. He can always seek to annul the partition. We discussed before the rescission of partition, if there is bad faith on the part of the
person who was a participant in the settlement. Or if there was no bad faith or fraud, just give to person their share entitled them and just let the
extrajudicial settlement remain.
So remember we can only resort to extrajudicial settlement or self-adjudication if there is no will, and it can be done orally if there is no creditor
affected.
Now, what happens if the decedent left no will (so there is no need for probate proceedings) but the heirs cannot agree among their selves as to how
to adjudicate the properties. So in that case, they cannot resort to extrajudicial settlement because this presupposes that the heirs are all in
agreement as to the manner of partition. If they cannot agree as to the manner of partition, even if there is no will, they have to resort to judicial
partition.
If there are personal properties involved, there is a requirement of a bond. But only if personal property, just to ensure that for example, there are
persons who were omitted in the extrajudicial settlement, they may still have something to claim in the future.
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 gross value is P10,000 - but karon, ayaw na lang mo ug file, icharge na lang na sa experience. (hehehehe) I think this has to be amended, this
is no longer practicable. Ang bayad nimo sa abogado mas dako pa sa imong gikaso. But for the purpose of spec. pro, we have 10,000.
So the petition has to be published (and now this costs around P4,000 already). So not less than 1 month nor more than 3 months from the date of
the last publication.
So you file a petition, it shall be raffled, and then as to the publisher, he has to publish, so within 3 weeks (once a week for 3 consecutive weeks, so 3
weeks), and after the last publication, not less than one month, so minimum of one month but not more than 3 months so dapat i-hear na sya, as
soon as possible without delay. So just read that.
Sec. 3. Bond to be filed by distributees. - The court, before allowing a partition in accordance with the
provisions of the preceding section, may require the distributees, if property other than real is to be distributed,
to file a bond in an amount to be fixed by court, conditioned for the payment of any just claim which may be filed
under the next succeeding section.
So take note when shall the bond apply? If there are properties other than real which are to be distributed. So meaning there are personal properties
to be distributed. The reason for this is because it is just easy to dispose of personal properties; they are easily wasted and dissipated, like cash,
they are very easy to spend.
So this bond will stand to answer for any claim which may be filed later on by heirs or creditors who are prejudiced by the partition.
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.
So here within 2 years after the settlement and the distribution of the estate -- so any claim filed within two years after the distribution of the estate. If
it is beyond 2 years, then the claim is already barred. But this Sec. 4 will apply only to creditors or those heirs who participated, because when it
comes to heirs who did not know of the partition, or were not notified, then they can claim their right at any time. So their right will not prescribe for as
long as they have not been notified.
So within 2 years after the settlement and distribution of the estate.
Ex. There was an extrajudicial settlement of the estate. So in that case, within 2 years after the extrajudicial settlement, the heir, or the creditor may
petition the court -- Kay chances are, if you demand extrajudicially, the heir will not agree -- so even if the partition itself was not in court you can ask
the court to partition the property, so you disregard the extrajudicial partition. That is within 2 years.
Ex. So what if the partition was done judicially? So in that case, you file the petition before the courts where the partition was earlier instituted.
So this is if certain creditors/heirs were not included in the partition.
If for example you want to annul the partition because of bad faith or fraud of the participants therein, then this is NOT the provision that will apply.
We will see later on that you can file for annulment of partition.
So this is not applicable if there is fraud, because for example there is fraud, then the period is extended.
And for example, the properties are no longer present, then the bond shall answer for such liabilities.
Sec. 5. Period for claim of minor or incapacitated person. - If on the date of the expiration of the period of
two (2) years prescribed in the preceding section the person authorized to file a claim is a minor or mentally
incapacitated, or is in prison or outside the Philippines, he may present his claim within one (1) year after such
disability is removed.
If for example, the 2 year period has already expired, and at the time of expiration, the heir was still a minor, or insane or imprisoned or outside the
Phil., so within one year after such disability is removed.
Again, this is another instance wherein the 2 year period is NOT applicable. The other would be if the heir was not notified of the partition. And the
third would be if in case there was fraud committed during the partition.
RULE 75
PRODUCTION OF WILL;
ALLOWANCE OF WILL NECESSARY
Sec. 1. Allowances necessary; Conclusive as to execution. - No will shall pass either real or personal estate
unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall
be conclusive as to its due execution.
So here, we will now discuss the probate of will. Remember that if a person dies with a will, then it is mandatory that his will be probated, otherwise
the right of the person to dispose of his properties mortis causa will just be rendered nugatory.
So the probate of a will is a judicial proceeding whereby an instrument is adjudged as a valid will and it is ordered recorded. Again in probate, we
only take into consideration matters which are pertaining the extrinsic validity of a will. So whether or not the testator had testamentary capacity at
the time of the execution of the will, or whether or not he was not forced or under duress at the time of the execution of the will, or whether or not the
formalities required by law were complied with by the testator. So as a general rule, these are the matters considered during the probate of a will.
So even if for example there is a will and there is a conflict/issue as to the rights of certain persons who are instituted as heirs in the will.. So for
example, A is a legatee in a will, and he is given cash, or he is a devisee and he is given a parcel of land.. and then later on there is a controversy
with respect to the parcel of land or the money (i.e. it is claimed by some other person). And as a devisee, A will say "no, I am the one entitled to the
parcel of land because I am the devisee of this land and the testator is already dead". Can you use the will as a basis that you are the owner of the
property?
Unless the will is probated, it cannot be used as evidence for the claim of any right. So the will has to be probated. Because for all we know, you are
indeed instituted as a devisee or legatee in the will but what if that will was not duly executed by the testator? So for example, the testator was
insane when he executed the will. Because in the first place, legatees and devisees exist only in a valid will. So a will cannot be used as a foundation
for the claim of any right unless it is probated.
So "subject to the right of appeal" -- So for example, the will is decreed valid by the probate court, the oppositors, of course, may still file an appeal of
that decision.
What is the effect if the will is probated? If the will is probated, then it is conclusive as to its due execution. Now, with respect to the due execution of
the will, the decree of probate is res judicata. So it is a bar to another petition or prosecution or claim basing on the same matter which was
adjudicated by the probate court.
Remember Mercado vs. Santos wherein there was already a will admitted to probate. And then subsequently there was a case for forgery filed
against the proponent of the will on the ground that the signature of the testator in that will was forged.

The SC said that the crim. case for forgery should no longer be allowed because this is already barred by the previous decree of the probate court
that the will was duly executed. When the probate court admitted the will for probate, it meant that there was no forgery in that will and that the
signature in that will was genuine. If the oppositors wanted to question the genuiness of the signature, they should have filed an appeal in that case.
Otherwise, if the decree made by the probate court became final, it would be a bar to other matters which the probate court has already ruled upon.
But of course, we've also discussed that the probate court may consider matters pertaining to the intrinsic validity of the will. Intrinsic validity again,
refers to the legality of the provisions of the will. So whether or not the institution of heirs is valid, or if the disinheritance is valid, or there was
preterition, or if this person is qualified to accept this inheritance, whether or not this person is really an illegitimate child of the testator.
So in those cases wherein the probate court may consider matters pertaining to the intrinsic validity of the will, any determination by the probate
court on that point will only be provisional so it is not conclusive. So later on, another proceeding may still be instituted questioning these matters
provisionally ruled upon by the probate court. (19:31)
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.
So the person in custody of the will has the duty within 20 days after he knows of the death of the testator to deliver the will to the court, or to the
executor named in the will.
So for example, the person who is in possession (of the will) is not the executor -- So the executor is the person named in the will by the testator to
administer his estate-- so if he (executor) is not the one in possession, then he (person in possession) has to deliver the will to the court or to the
executor within 20 days after he knows of the death. NOT 20 days after the death because he may not know of the death of the testator in the first
place, so only after he knows of the death.
So to the court which has jurisdiction -- what is the court which has jurisdiction over the probate proceeding? It depends. In jurisdiction we refer to BP
129 or the Judiciary Reorganization Act of 1983, as amended.
In that law, it establishes the jurisdiction of the different courts. So with respect to probate, we are referring to the GROSS VALUE OF THE ESTATE,
not the net value. Because in probate, it is only after distribution that you know what is the net value of the estate.
Today, MTC outside metro manila is upto P300,000. In excess of that, file the case in RTC. In Metro Manila, upto P400,000. So the basis of the
jurisdiction in probate proceedings will be the gross value of the estate.
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.
So we're talking here of the duty of the executor. He may not be the custodian of the will. So, within 20 days also after he knows of the death of the
testator, or within 20 days after he knows that he is named executor to the will-- so he has the duty to present the will to the court having jurisdiction.
And within 20 days he shall signify to the court in writing his acceptance of the trust or his refusal to accept it. So the executor is not obliged to
remain, even against his will, as an executor. So he can either express his acceptance or his refusal, but he has to signify to the court within 20 days
so that the court can appoint another administrator to perform the duties supposedly to be performed by the executor.
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.
So because it is the obligation of the custodian or the executor to deliver the will to the court, if they neglect this duty, they can be fined but not
exceeding P2,000.00. So dili kaayo sya makakurat. But again, the law says "without excuse satisfactory to the court" because of course, kung naa
sya sa coma, unsaon nya pagdeliver diba?
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.
So this refers to a person who has been ordered to deliver the will. Secs. 2 and 3, there is no such prior order to deliver but (in Sec. 4) there is
neglect to deliver.
Here, its worse because you were already ordered to deliver but you failed to deliver it to the court which has jurisdiction. So in that case, you can be
committed to prison until you deliver 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.
So who are the real parties in interest in probate proceedings? Who may petition for the allowance of the will? They are enumerated:
1. executor;
2. devisee or legatee named in the will;

3. any other person who are interested in the estate; Who are these persons? The heirs, the creditors.. so they are interested persons.
We discussed before the case of LEVISTE VS. CA, the lawyer who represented the supposed heir of the will, and then the probate was denied so
he filed an appeal. The SC ruled that he was not the proper party to participate in the proceedings. Why? First because he was not the heir, and
second, he was not a creditor of the heir, or a creditor of the estate. His fee was only contingent, subject to the successful prosecution of the case,
and since he lost, then he is not entitled. And even if he won, he is (still) not the creditor of the heir because client in that case was ruled as not an
heir of the testator.
4. the testator himself may, during his lifetime, petition the court for the allowance of the will . How about if he is dead? Pwede ba? (harhar).
Of course not. Pwede na siguro dili ibutang diri na "during his lifetime" because of course, he cannot petition the court after his death.
So again where do you file the case? In the court having jurisdiction taking into consideration of the gross value of the estate. Even if you are not in
possession of the will, you can file the petition for probate. If the will is in possession of another person, that person has to deliver the will to the
court. Again, within the period we discussed earlier.
So you can file the petition even if the will is lost or destroyed. But take note that if the will is lost, it has to be distinguished whether the will is notarial
or holographic.
If the will is a notarial will, and there is no copy of that will, as long as there's a person who knows the content of the notarial will, it can be probated.
If it is a holographic will, there has to be at least a copy. If for example there is no copy, and then another person has memorized the provisions of
that holographic will, still that will cannot be probated because in a holographic wills, the only safeguard as to the authenticity of the will is the will
itself. The court has to examine whether or not the will is really in the handwriting of the testator. So in the absence of a copy, the will cannot be
probated. So that was the ruling in ________.
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.
So your petition for the allowance of the will must state these jurisdictional facts:
1. First you have to allege that the decedent already died and he has a will. This is very important because if the person is still alive, you cannot
file the probate. The only person who can petition for the probate is the testator himself. So you must allege that he died and that he left a will. That
is the basis why you are filing the probate.
2. If the testator was a resident of the Philippines, you must allege that he died in the place where the court exercises territorial jurisdiction.
So for example he was a resident of the Philippines, you must allege that for example he last resided in Davao City and that you are filing a case in
Davao City.
Or if the testator was not a resident, then you must allege that this testator left an estate in the place where you are filing the case. Like for
example, at the time of his death, the testator was a resident of the US, and you are filing a case in Davao City, then you must allege that the testator
has an estate in Davao City.
3. And third, you must allege the gross value of the estate. Because based on that the probate court will determine if it has jurisdiction over the
case. So with respect to Number 2, we were referring to territorial jurisdiction. Here, we are talking about the value, so if less than P300,000 it has to
be filed in the MTCs.
You have to allege also the names, ages, residences of the heirs, legatees, and devisees of the testator or decedent. Because there is a
requirement that notices be sent to the known heirs, devisees, etc.
So the probable value and character of the property of the estate -- so if the estate consists of personal properties, real properties.. you have to
allege the properties of the testator. So in jurisdictional facts, the important thing there is the value of the estate [P300,000 up- RTC], but here, you
have to enumerate the properties of the estate, i.e. a parcel of land, covered by TCT No. 14344, located in etc., containing this much square meters,
because the probate court will determine whether or not these properties will be included so that the oppositors could also pray whether that certain
property should be excluded from the estate.
The name of the person for whom letters are prayed -- who are the executors in the will, and if there is no executor mentioned in the will, then
who shall be the administrator of the estate. To whom shall letters of administration be made because once you are appointed as an administrator,
you will be given letters of administration. So you will have to include therein the names of the persons who shall be appointed as administrators.
And last, If the will has not been delivered to the court, the name of the person having custody of it -- Because again, in the probate of the
will, as a general rule, a copy has to be delivered to the court. If a person who has custody of a will refuses to deliver the copy, then he can be
imprisoned.
What if gi-imprison na sya, pero dili jud sya mudeliver? What happens? Should the probate court deny the probate petition? So for example you
demanded from A the delivery of the will, but instead he ate it, so wala nang will, what happens? If the will cannot be probated (dapat produced in
court), then its contents can be proved by witnesses.

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. - Again, for as long as the defect is not jurisdictional. [read: those affecting jurisdictional facts] Because if it is
jurisdictional, i.e. it is filed with the MTC and the gross value is P1Million, then of course, the MTC has no jurisdiction to issue/order the probate. As
we have learned, jurisdiction is conferred by law and not subject to consent of the parties. So the decree of the MTC is an absolute nullity. Or for
example, it did not state that the testator left a will, and there are witnesses, again, what is there to probate if there is no will to speak of. So we are
talking here of jurisdictional facts -- and the defect affects the authority of the probate court. Remember that if a person dies without the will, the
settlement is intestate proceedings and not probate proceedings.
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.
Okay, so the next procedure once the will is delivered to the court, or there is a petiton for allowance of a will is filed. So in Sec. 3, its either there is a
petition filed, or even if the will is just delivered to the court and there is no petition, the court acquires jurisdiction over the proceedings even if there
is again no petition.
So what is the duty of the court? First, it will be raffled as to what branch will here the probate proceedings. And then the judge will issue an order for
the publication of the petition. So what is published is only the order of the court. I think you have noticed this especially in local newspapers, mga
orders nga gipublish. So petitions for adoption, settlement of estate, etc. So that is the one being published.
Once a week for three consecutive weeks in a newspaper of general circulation in the province where the case is filed.
Also, the publication, when you are already practising, it is also raffled to the publishers. So you can't say that it has to be published in Sun Star. So iraffle talaga yan sya.
EXCEPTION: If the petiton is filed by the testator himself during his lifetime, then there is no newspaper publication required. So only if it is post
mortem probate.
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
So aside from the publication requirement, there is also a requirement of notifying the heirs, legatees, devisees of the testator. But take note, when it
comes to notices, who are those entitled? The heirs, devisees and legatees. There is no requirement of notifying the creditors of the testator. And
take note, only the KNOWN heirs, legatees, or devisees. Once you file a petition for probate, you are not really required to search the whole world
for the possible heirs of the testator. Kato lang known.
So when shall you send the notices?
At least 20 days before the hearing, if by registered mail. Or if it is by personal service, it should be at least 10 days before the date of the hearing.
And also notice must be given to the executor. And only if their residences are known.
If it is the testator who petitions for the allowance of his will, then notice shall be sent only to his compulsory heirs. Why? Because if it is the testator,
the purpose here of notifying his compulsory heirs is to see to it that no legitime of these compulsory heirs are prejudiced.
So as distinguished from probate made by the testator, and probate made by his heirs or other persons:
1. As to the date of filing -- of course, if by testator, during his lifetime. If other persons, upon or after testator's death.
2. As to the publication requirement - if it is an ante mortem probate, then there is no publication requirement.
3. As to notices - If testator filed for probate, notice is required only to his compulsory heirs. With respect to post mortem probate, notices must be
sent to the known heirs, legatees, devisees and also to the executor. There is no requirement of notifying the creditors.
So when a petition for probate is filed in Sec. 4, it is not only required that there must be publication or notice, but it also must be served upon the
heirs, legatees, devisees, executor as long as they are known.

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.
Okay, so what proof must be required so that the will may be admitted to probate.
Again, let us go back to the procedure: First of course you file the petition for probate. As to the venue, it depends on the residence of the decedent.
For example, he resides in the Phil at the time of his death, so in the place where he last resided. If not, in the place where he has an estate. As to
jurisdiction whether MTC or RTC, depending upon the gross value of the estate.
Once you have filed the petition, the court shall order that notices to the heirs, devisees, etc and it shall set the date of the hearing, and the time.
And then publication, 3 consecutive weeks in a newspaper of general circulation in the province. And then notices must be sent to the heirs,
legatees, etc that are known.
So hearing na. Before you present evidence as to the authenticity of the will, you have to prove that you complied with the requirements of Sec. 4
and Sec. 3.
How do you prove that? When you go to court, (do you know what happens in the court?) your case will be called: In re: matter for the petition for the
allowance of the will of X, Special proceedings no. 1234.
So being the petitioner, you stand and enter your appearances.
Normally, the court will ask if you are ready. So you say I'm ready your honor, but you don't proceed dayon because in practice, the court will call all
the cases. That is the first call.
So during the 2nd call, that will be the time you will present your petition. You must state for the record that you have complied with secs. 3 and 4
before you can present your witnesses.
How do you prove that? "Your honor, before I present my witness, I am presenting before this honorable court, copy of the notice of this honorable
court setting the date and time for hearing. I would like to have this doc. marked as Exhibit A. Your honor, I have a copy of the newspaper wherein
the notice was published. This newspaper is dated (date of the newspaper). I would like to have this doc. marked as Exhibit B, and the page where
the notice was published be marked Exhibit B-1. Your honor, I am also presenting a copy of the registry receipt proving that notices were sent to the
known heirs, etc. So that is Exhibit C. If you have a return card to prove receipt by the heir, legatee, then that is Exhibit F.
So that is how you prove compliance with the requirements under Sec. 3 and 4.
So after that, Your honor, I am now ready to present my first witness. In evidence, you will have to state the purpose of his testimony.
So that is the procedure in court in actual practice.
So who will you present as witnesses in the probate? It depends. If we're talking of a notarial will. If the will is not contested, you present one
subscribing witness only. So the witness shall testify that the will was executed as required by law. So the subscribing witness.
How will he testify? He will testify that at the time of the execution of the will, the testator was of legal age and of sound mind. And then he will testify
that he saw the testator sign each and every page of the will and that he saw the other witnesses sign the will and each and every page thereof.
Of course, there is a presumption that once a will is notarized, it was voluntarily signed by the parties. But he can also testify that he signed the will
and the attestation clause voluntarily.
If we're talking of a holographic will, of course we know that there is no subscribing witnesses, the (court) witness required is one who can explicitly
declare that the will and the signature are in the handwriting of the testator. So he must be familiar with the handwriting of the testator and must state
categorically that this will is indeed in the handwriting of the testator. And this is really the signature of the testator.
Sec. 5 says that "if the court deems it necessary, expert testimony may be resorted to". So meaning, even if the will is not contested, expert
testimony may be resorted to. So this applies to both types of will.
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.
So how to prove lost or destroyed will.
When it comes to notarial wills, can it still be probated even if the will is lost or destroyed? Yes, if there's a copy you can present that.
How about if there is no copy? The notarial will may still be proved as provided in Sec. 6.

10
How about holographic will? If there is a copy, it can still be probated even if it is just a photocopy.
But if there's no copy at all, it cannot be probated.
So you have to specify that Sec. 6 does not at all time apply to holographic wills. Only when there is a copy of the holographic will. Its contents
cannot be proved by at least 2 credible witnesses. No amount of testimony can substitute for the will itself, in so far as proving whether or not the will
is authentic.
So what proofs are needed?
First, you have to establish the execution and validity of the will. There must be proof that even if there's no will present during the probate, there
was such a will executed by the testator, although its missing now. And such will is validly executed.
Maybe persons can testify that they saw the testator while he was executing the will. He really executed the will and that he was of sound mind and
the formalities were complied with.
Second,, the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge.
So it is either you prove that (1) at the time of the testators death, there was still a will in existence, and after his death, it was lost or missing.
What happens if at the time of the death of the testator, the will could no longer be found? Can it still be probated? Because the law says at the time
of the death of the testator, the will is in existence. But what if at the time of his death, it was already missing.
It can still be probated as long as long as you can prove that (2) it was fraudulently or accidentally destroyed in the lifetime of the testator. Why?
Because if you cannot prove that it was accidentally or fraudulently destroyed during the lifetime of the testator, the presumption is it was revoked by
the testator.
If the will was in the possession of the testator during his lifetime and no other person has access to such will and at the time of his death, there is a
presumption that such will is missing or lost because such will is already destroyed by the testator himself.
So if the will cannot be found at the time of death of the testator, you have to prove that it was fraudulently or accidentally destroyed without the
knowledge of the testator. Because remember, when we discussed revocation in wills and succession, even if the will is totally destroyed, or burned
into ashes, as long as there is no intent on the part of the testator to revoke his will, then there is no revocation. So it can still be probated. So, there
can be no revocation if it was lost or destroyed because of some act of another, or by accident without the intent of the testator.
And third, if the will is lost, its provisions are clearly and distinctly proved by:
1. the testimonies of at least 2 credible witnesses;
-- so these witnesses must be able to know the provisions of the will. OR
2. by a copy of the will.
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.
So this will be the procedure if you want to take the testimonies of the witnesses who are not residing in the province.
It is okay if at least one of the witnesses reside in the province because if the will is not contested, his testimony will be sufficient. But if none of them
reside in the province, so the deposition of one or more of them can be taken.
So, you know what a deposition already diba?
How about if the witnesses are dead, or insane of does not reside in the Philippines? Because Sec. 7 refers to those who are not residents of the
province where the petition for probate is filed, but they reside in the Philippines.
So you go to Sec. 8
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.
You will notice that in the execution of a will, one qualification of a witness is soundness of mind, diba, because he will attest to the due execution of
a will. So if he is not of sound mind, then he does not have intelligence to relay what really happened during that time. He might be hallucinating or
what.
And he must be domiciled in the Philippines because his testimony may be needed. He may be called upon to testify during the probate
proceedings.
But again, these requirement that the witness must be domiciled in the Phil. does not apply when the will is executed abroad.
Now, for example these witnesses became insane or do not anymore reside in the Philippines, still the will remains valid. So that does not affect the
validity of the will. That only affects the proceedings in the court.

11
So other witnesses may be called by the court to prove the sanity of the testator. For example, there were persons who were present during the
execution of the will (Ed -- other than the subscribing witnesses, kasi you need only 3), then they could testify as to the mental sanity of the testator.
Or even if they did not see the testator during the execution of the will but right before and after the execution of the will, they saw the testator, they
could also testify. Because again, it would be improbable that now, the testator is sane, then he went to his house and became insane while he made
the will, and then after he became sane again. Dili man na sya pwede i-on, off diba?
The court may also admit proof of the handwriting of the testator and of the subscribing witnesses or any of them. Like for example, it is a
holographic will. So diba there are no subscribing witnesses. The witness required is one who can explicitly declare that the will and the signature
are that of the testator. What if no such person exists?
So can the will still be probated? Yes, the court may resort to expert testimony or it may admit other document which are in the handwriting of the
testator, and the court on its own may make its own comparison.
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.
We discussed this also in Wills and Succession. So the same grounds for the disallowance of will.
(a) If not executed and attested as required by law
So if it is a notarial will, it must comply with the formalities of a notarial will. If it is a holographic will, with the provisions governing holographic will.
And in addition, the testator must be of sound mind and of legal age.
Also, if the will is executed under duress or threat, or improper pressure or fraud, or the will is already revoked by the testator. So these grounds are
not here but they are additional grounds to deny the probate 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.
So the oppositors must file their opposition in writing and copy furnish the petitioner and other parties interested in the estate, i.e. creditors, legatees,
devisees.
If you want to oppose the probate of a will, you cannot just go to court and say you're opposing the probate of the will. So it must be in writing.
When should opposition be filed? Within 10 days from filing of petition?
There is no specified period, as long as he must appear on the date of the specified hearing. Diba, there's a requirement of publication? That
publication is considered as notice not only to the heirs, creditors, but also to those persons who are interested in the will.
But of course, only those persons who are interested in the will may file an opposition. A person who is a total stranger to the estate or to the testator
cannot oppose the will.
For example, Marcos' died, you cannot just go to court and oppose the probate of the will, so you must also be a person interested in the estate or in
the will of the testator.
So there is no time mentioned for as long as on the time specified for the hearing, you appear with a written opposition.
In fact, some persons may appear during the trial or during the hearing and they just verbally say that they are opposing the will. In practice, the
probate court will give him opportunity to present his written opposition. So that is how to oppose the probate of the will.
It cannot be oral because the court might forget your arguments.
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.
So Sec. 5 is the procedure if the will is NOT contested. Sec. 11 is the procedure if the will is contested.
So if we're talking of the notarial will, if the will is not contested, the testimony of at least 1 subscribing witness will be sufficient.

12
But if it is contested, so ALL the subscribing witnesses, as well as the notary public shall be required to testify.
Now, what if all of them are dead, absent or insane, or they testify against the due execution of the will, or they are of doubtful credibility, what
happens to the will? Shall it be denied probate?
The court should not just immediately dismiss the petition. The court shall allow other evidence and other witnesses. Because again, testacy is
favored over intestacy. In view of that principle, the court shall exhaust all remedies available in order to establish that indeed the will was executed
in accordance with law. So it shall not stop with the absence, death or insanity of the witnesses.
If we're talking of a holographic will, again, in Sec. 5 only one witness who can categorically testify that the will and the signature are in the
handwriting of the testator.
But if the will is contested, at least 3 witnesses must be present. Now, what if the 3 witnesses cannot be presented. Again, expert testimony can be
resorted to. Is it mandatory to present these three witnesses? Again, we go back to the cases:
Azaola vs Singson -- It is not mandatory because in the first place, the execution of a holographic will does not require witnesses.
But in the case of CODOY VS. CALUGAY, the Supreme Court said it is mandatory because the word "shall" means that it is imperative, otherwise,
the admission of a holographic will despite the absence of 3 witnesses will become doubtful.
But if there are no 3 witnesses who can explicitly declare that the will is in the handwriting of the testator, then other evidence may be admitted.
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.
So this is the procedure for ante mortem probate. Of course, as long as the testator himself attests to the genuineness and due execution of his
signature and his will, then of course, the court shall honor his testimony. Alangan, he is the testator.
But for example, somebody opposes the probate of the will. So he has the burden of proving that the will was not genuine, not executed in
accordance with law. For example, the oppositor will say that the testator was insane during the execution of the will. So he should prove that the
testator was really insane.
Because, for all we know, the testator might really be insane during the execution of the will, but when he regained his sanity, he read his will and he
liked what he read. So he adopted that as his will but he did not re-execute the will. So that is a void will, diba? Because again, the law specifically
provides for the procedure in the republication of wills.
So if the will is void as to form, how should it be republished? By re-execution. So he should re-execute the entire provisions of his will.
But if the will is void but not as to its form, i.e., insane at time of execution, and he would want that will to be given effect, he shall republish it. There
is no prohibition if he will re-execute the will, but it is also sufficient if he will just execute a codicil or a document wherein he refers to the already
executed will as his will -- so by reference only. He does not have to write all the provisions. So he can just say that on this day, I executed a
holographic will and I am adopting that will as my last will and testament. So that is now republication.
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.
If the court finds that there is no ground for the disallowance of the will, then it becomes ministerial on the part of the court to allow the will. So it shall
issue a certificate of allowance of the will and shall state that the probate of the will is admitted. Usually, this is in the form of an order to be recorded
in the Reg. of Deeds.
Now, if we're talking of real properties which are devised, a copy of the will must be given to the Reg. of Deeds. Why? Because the Reg. of Deeds
will have to cancel the title of the testator. Because on the basis of the will alone, the RoD will not cancel the title of the testator. The will must first be
probated.
If the will is probated, that will with the certification of allowance must be given to the RoD. On that basis, the RoD will issue a new TCT in the name
of the heirs or devisees. The mode of transfer here is succession.
If it is intestate succession, it depends. If you file a petition for settlement of intestate estate, so the decree of the court must be presented to the
RoD. If you settled extra-judicially, a copy of the extrajudicial partition shall be given to the RoD as his basis for transferring the properties to the
heirs.

13
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.
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.
So Rule 77 talks of wills which already have been probated abroad.. proved and allowed in a foreign country, according to the laws of such country.
Article 81 states of the Civil Code which we've discussed before in Wills and Succession, if for example, the testator is an alien, and he executes his
will abroad, what rules must be complied with in the execution of his will with respect to the formal requirements? So foreigner, will executed abroad?
So he may follow his domiciliary law, his nationality law, he may follow the law of the State of execution or he may also follow Philippine laws. So
there is no problem if he follows the laws of the Philippines because our courts take judicial notice of Philippine laws.
What happens if he follows the law of the place of his nationality or his residence or the place of execution? We don't take judicial notice of foreign
laws.
And what if his will, executed in accordance with foreign laws, has already been probated abroad? Do we automatically give effect to such will? We
don't automatically give effect to such will unless it has been probated here in the Phil.
So reprobate is required in the Philippines of a will which has already been probated abroad.
REPROBATE is a special proceeding to establish the validity of a will previously proved in a foreign country.
When the will is probated abroad, i.e. will is executed abroad in accordance with the rules of that place, then the proceedings there is what we call
DOMICILIARY PROCEEDINGS. Any other proceeding outside of the domicile of the testator would be what we call ANCILLARY PROCEEDINGS.
So under Sec. 1, it may be allowed, filed and recorded by the proper court in the Philippines.
In the case of VDA. DE PEREZ VS. TOLETE (GR. 76714) when a will has already been probated abroad, diba it is supposed to be probated again
here in the Phil. but because it was already probated abroad, do we a different proceeding with respect to those wills which have already admitted to
probate abroad considering that they have already been probated abroad?
The SC said that the same proceeding as the original probate of a will. You still follow the same proceeding. So there is still the petition, the
publication requirement, requirement of notice.
Before we go to the cases, lets first discuss Sec. 2, what happens during reprobate.
So, as discussed in the case of Perez vs. Solente, it shall be considered as -- the procedure will still be the same as a will originally probated here in
the Phil. The same hearing, notice, as in a case of original allowance here in the Phil.
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.
Okay so again, same procedure of a will probated here in the Phil. There is a certificate of allowance, issued and signed by the judge, and attested
by 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.
Now, what kind of evidence will be required by the court in reprobate of wills? For example, if we talk of probate of wills executed here in the Phil in
accordance with our laws, diba we discussed before if it is a notarial will, then at least the testimony of one subscribing witness. He will testify as to
the due execution of a will. If the will is contested, all subscribing witnesses and the notary public must testify.
If it is a holographic will, at least one witness who is familiar with the handwriting of the testator. If the will is contested, 3 witnesses who should be
able to categorically say that the handwriting and signature are of the testator.
But for a will probated abroad, what kind of evidence do we require so that such will will be allowed in the Phil.
First, you have to prove the due execution of the will in accordance with the foreign laws. Now, how do we know what are the foreign laws
applicable? Of course, if the will is probated supposedly in accordance with the will of California, then evidence must be presented in the Phil Court
with respect to the execution of the will. Maybe you can present copies of their civil code wherein the requirements are mentioned.
What if for example, there is an allegation of that law but there is no evidence, what shall the probate court do? Shall it deny probate? Shall it
presume that they are the same as Phil. laws?
Again, as a general rule, as to what are those foreign laws, they have to be proved in court like any other fact. They have to be alleged. That was
decided in the case of PCIB vs. Escolin 56 SCRA 260

14
But of course in the absence of proof as to what are these laws concerning the due execution of the will, then we apply the doctrine of processual
presumption as discussed in MICIANO VS. BRIMO.
The second requirement is that the testator must have his domicile in the foreign country and not in the Phil.
So it has to be proved that he did not reside here in the Phil at the time of his death, otherwise, the probate should be here in the Phil
Third, that the will was admitted to probate in such country. In this case may be you can present an order of the court wherein the will was
admitted to probate. So a copy of that decision or order wherein the will is admitted to probate.
And fourth, you have to prove that the foreign tribunal is a probate court.
So you have to establish that the will was really tried by a probate court because for example there was a will and it was filed, for example, their
equivalent civil service commission. So that is not a probate court.
So maybe you can present an equivalent of BP 129 to prove that this foreign court has jurisdiction to hear and decide the probate proceeding.
And fifth, you have to present proof as to the laws of procedure for the allowance of wills. So this will be equivalent to our rules of court.. so
the equivalent of our special proceedings. What is the procedure in that country with respect to probate of wills? Do their rules require publication?
Was it complied with? What about notice requirement? So you have to present proof with respect to their procedure for the allowance of wills.
What is the consequence if no proof is presented with respect to this law of procedure for allowance of wills? Do we presume that their procedure is
similar as ours? Do we apply the doctrine of processual presumption?
No. When it comes to the laws on procedure in allowance of wills, we don't apply this doctrine. In the absence of proof, then the will has to be denied
probate. That was discussed in the case of SUNTAY VS. SUNTAY 95 Phil 500.
For example, you fail to prove that this will was not published and you have no proof that it is not required to be published in accordance with their
procedure, you have no proof of laws of procedure of California, then in that case, the will be denied even if you have already proved the 1st 4
requirements.
So that is the difference with the 1st requirement -- in the absence of proof, we apply the doctrine of processual presumption. But with respect to the
procedure for allowance of the will, there is no processual presumption
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.
So when the will is allowed what happens? The Court issues letters testamentary or letters of administration.
Remember, letters testamentary/administration is issued only after the will is allowed. So what do we mean by letters testamentary? Letters of
administration with will annexed?
We're talking here of testate proceedings, so meaning there is a will. The court does not declare the will to be void. It admits the will for probate. So
assuming that there is a person appointed in the will to administer the estate of the deceased person. That person is what we call the EXECUTOR.
To an executor is issued letters testamentary. That shall constitute his authority to administer the estate.
Assuming that there is no person is mentioned in the will to administer the estate and so certain persons are appointed to administer the estate. So,
the authority given to that person is letters administration with a will annexed.
But if we're talking of a proceeding where there is no will, so it is intestate proceeding, of course, it is not a probate of a will. You are filing a petition in
court to settle the estate of a deceased person who died without a will. And of course, certain person are appointed to administer the estate, and he
is what we call ADMINISTRATOR and to him are issued letters of administration.
Now what happens if a person is appointed executor or administrator? Then he shall have the power to administer all the properties, real or
personal, of the testator in the Philippines. All estate in the Philippines only, the power does not extend outside the Phil. In the same manner, if a
person is appointed executor or administrator abroad, he shall have no power over properties in the Phil.
The power granted in the testator's domicile is what we call PRINCIPAL ADMINISTRATION. Any other administration outside the domicile of the
testator is what we call ANCILLARY ADMINISTRATION.
Now, remember we discussed the duties of a person who has custody of the will. Diba he can be fined or if he refuses, he can be imprisoned. So we
have that case of GUEVARRA VS. GUEVARRA GR L-48840, DEC. 29,1943.
In this case, a certain Victorino Guevara died with a will. But his will was never presented to the court for probate. Since his death, his only legitimate
son, Ernesto Guevara was the one who possessed the land previously owned of course, by the deceased.
Subsequently, a person in the name of Rosario Guevara, petitioned that part of the estate should be given to her because she is an illegitimate
daughter of the testator. And to prove her filiation, she presented a copy of the will wherein she was acknowledged as an illegitimate child. So that
was her evidence in that probate court wherein she filed the petition.
So we go back to our early discussion that a will that has not been probated can never be a source of any right. So in this case, she was asking that
certain portions of the property be delivered to her based on that will acknowledging her as an illegitimate child. But according to the SC, it was not
probated.

15
But in that will there was a certain provision giving a property to her. So, she is basing her right not only on the fact that she was acknowledged as an
illegitimate child, but property was also given to her in that will.
Diba there's a provision in the Civil Code that an acknowledgment of an illegitimate child is effective even if the will itself is not valid because an
acknowledgement is not a testamentary disposition, so it is valid even if it is not probated. But because she based her claim on a certain disposition
to her in that will, then she cannot use that will as a basis for her claim over the property.
Even if you are named in the will as an heir of a certain property, unless this will is probated, you cannot claim any right over this property. You have
to first probate the will. So that was the ruling of the court.
Aside from that, the court also penalized her because she did not present the will for probate. Diba, you have the obligation to present the will if you
have custody of it. Again the SC here reiterated the general principle that the probate of a will is mandatory. So you cannot escape the probate of a
will. As long as there is a will, you have to probate it.
So lets proceed.. Sec. 4, Rule 77. So what happens to the estate of the testator? Of course, it shall be used to pay the debts and expenses of
administration, and if there is an excess, then the residue shall be distributed to persons who are entitled to claim from the estate of the testator, like
the heir, legatee, devisee.
RULE 78
LETTERS TESTAMENTARY AND OF ADMINISTRATION,
WHEN AND TO WHOM ISSUED
Sec. 1. Who are incompetent to serve as executors or administrators. - No person is competent to serve as
executor or 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.
So this is a continuation of Rule 77. To whom shall letters testamentary/administration issue? Or who shall be appointed as executor or
administrator?
Sec. 1 gives you the disqualifications.
1. Minor -- - on the presumption that the minor is not yet competent.
2. Not a resident of the Phil-- obviously because the executor or administrator (we're talking here of proceedings being conducted here in the
Philippines) if he resides abroad, then the purpose of administration would be defeated. You have to be present here in the Phil to oversee the
estate. Periodically, you have to render an accounting, settle certain debts, preserve the property.. so actual presence is really required.
3. In the opinion of the court unfit to execute the duties of trust by reason of drunkenness, improvidence, or want of understanding or
integrity or by reason of an offense involving moral turpitude -- Of course, again if you're drunk, what is the state of mind of a person who is
drunk? You don't have the intelligence or unsa ba (I have not been drunk hehe).. so they don't have good judgment. Okay lang siguro if usahay but if
it is habitual, then how can you administer an estate if you're always drunk?
So if you notice, all this go into the integrity (or lack thereof) of the person disqualified.
Does conviction for BP 22 involve moral turpitude? Accdg. to the SC, yes because knowing that this check has no funds, then why did you still issue
it to the prejudice of third persons? Or even if you issued a check with sufficient funds but subsequently you closed the account, that goes into the
very character of a person. If you are an honest person, you will really see to it that your obligations are honored. In that case, you lack integrity so it
involves moral turpitude.
Several cases here.. I will give you the list later on (MIA!)
Sec. 2. Executor of executor not to administer estate. - The executor of an executor shall not, as such,
administer the estate of the first testator.
So we are talking here to 2 executors. So for example, A the testator, died. B is appointed as executor of the estate of A. Now, the executor died, so
B also executed a will appointing C as an executor. So C can be the executor of B, but he cannot at the same time, be the executor of A.
Why? Because there would be a conflict of interest. Supposed to be during B's lifetime, he was in charge of administering the estate of A, the
testator. As an executor, he is supposed to set aside the properties of A from his own properties. He should not confuse his properties with A.
Now, here comes C and he administers the property of the executor of A, so si B. Again, the duty of C is to administer only the property of B, the
executor. If he is still to administer the properties of A, there might be confusion as to the administration. And there might even be a conflict of interest
because he will now be administering the properties of 2 persons whose properties are not supposed to be mixed or confused. So that is why the
executor of the executor should not administer the estate of the first testator. But he can administer the estate of the executor. There has to be
another person appointed to administer the estate of the first testator.
Sec. 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.
Sec. 4. Letters testamentary issued when will allowed. - When a will has been proved and allowed, the court shall
issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trust, and
gives bond as required by these rules.
So again, this is just a reiteration of the preceding section. So letters testamentary are issued only after the will has been probated. So to whom
issued. Again, if we're talking about letters testamentary, if we are going to be technical about it, it is the executor. But again, his appointment is not
automatic and it cannot be enforced upon him or her.

16
So even if a person is appointed to be the executor, if he is not competent (Sec. 1), then he is disqualified. In that case, an administrator shall be
appointed. So an administrator with a will annex.
Or if the executor is competent but he refuses to accept -- either because he's too busy, or the bond is too expensive.
So we now have two instances where there can be an administrator with a will annexed. First, if there's a will but no executor is appointed in a will, or
second, if there's an executor in a will but he is disqualified or incompetent or he refuses to accept the trust, or fails to furnish the bond. (2 instances
lang ba to?!)
Sec. 5. Where some coexecutors disqualified others may act. - When all of the executors named in a will can not
act because of incompetency, refusal to accept the trust, or failure to give bond, on the part of one or more of them,
letters testamentary may issue to such of them as are competent, accept and give bond, and they may perform the
duties and discharge the trust required by the will.
Now, question, for example, the administrator or executor is not disqualified, can another person be appointed as co-executor or co-administrator?
Or is it a rule that another person may only be appointed as executor or administrator if the original executor is disqualified? Or there can only be a
co-executor/co-administrator if that is provided for by the testator in his will?
Now, according to the SC in the case of Wilson Uy vs. CA, GR 167979, March 15, 2006 the appointment of the executor/administrator is left to the
sound discretion of the court. It is not required, for example, an executor/administrator is already appointed, that does not preclude the probate court
from appointing another person to be a co-administrator. The first executor/administrator does not have to be disqualified before another person may
be appointed by the Court.
Accdg. to the SC, a co-administrator/executor may be necessary in cases wherein a single executor or administrator could not possibly discharge all
the vast duties in the administration of the estate or he fails to do some acts involved in the administration of the estate. So the probate court, just to
preserve the properties of the testator, has the authority to appoint a co-executor. It is not limited to situations wherein the 1st is disqualified.
So it is an admitted principle in our jurisprudence that co-administrators/executors may be appointed. This was also discussed in an old case Gabriel
vs. CA, G.R. 101512, August 7, 1992.
What are the reasons why a co-administrator may be appointed by the court? As discussed in this case, there are several reasons:
1) to have the benefit of their judgment and perhaps at all times to have different interests represented; (Especially when the estate is so large and
there are many heirs, devisees or legatees).
(2) where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased;
(3) where the estate is large or, from any cause, an intricate and perplexing one to settle;
(4) to have all interested persons satisfied and the representatives to work in harmony for the best interests of the estate; and
(5) when a person entitled to the administration of an estate desires to have another competent person associated with him in the office.
Now, in the case of MARIA SOCORRO AVELINO VS. CA, G.R. 115181, March 31, 2000
Here, a petition for the issuance of letters administration was filed before the court. So, when you're asking for letters for administration you are
asking that you be appointed as administrator of the estate.
Now, subsequently, a motion was filed by the oppositors praying that the present petition be converted to one for partition. So they insisted that
instead of tackling the issue of whether or not this person (Ma. Socorro) shall be appointed as admin of the estate, let us convert the proceeding as
one for judicial partition of the estate.
So, is this proper? When there is a pending petition for administration is it proper to have a partition of the estate? Or is it mandatory in all
circumstances when a person dies an administrator be appointed to administer his estate?
Petitioner submits that: First, no partition of the estate is possible in the instant case as no determination has yet been made of the character and
extent of the decedent's estate. Meaning there are still certain properties which are questionable whether or not they should be included in the
estate. So how can you partition the estate in the first place if you do not know the nature and extent of the estate and it would be better if you first
appoint an administrator so that this administrator will be the one in charge in ascertaining whether or not these properties will be included.
According to the SC, there is nothing wrong when the trial court, by mere motion, converted the proceeding into one for judicial partition. An
appointment of administrator is not mandatory in all circumstances.
The SC pointed out Rule 74, Sec.1 wherein if the decedent died without a will and there is no debt, the heirs may extrajudicially settle the estate of
the decedent without need of first appointing an administrator over the property. Another is if we're talking of an estate of small value. Diba, summary
settlement of estate of small value.
So in these cases, the appointment of an administrator is really not necessary.
As held by the SC: "The basis for the trial court's order is Section 1, Rule 74 of the Rules of Court. It provides that in cases where the heirs disagree
as to the partition of the estate and no extrajudicial settlement is possible, then an ordinary action for partition may be resorted to, as in this case. We
have held that where the more expeditious remedy of partition is available to the heirs, then the heirs or the majority of them may not be compelled
to submit to administration proceedings."
So if there is a better way of settling the estate of the decedent, then you cannot force the other heirs to submit to administration. If they want
partition, then the court shall hear their clamor and resolve their petition.

17
Sec. 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 and willing to
serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (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, it may be granted to such other person as the court
may select.
So Sec. 6 gives you the order of preference in the appointment of administrators.
First, when shall there be an appointment of an administrator. In Sec. 6, you have the 5 instances:
1. if no executor is named in the will;
2. The executor/s named in the will are incompetent;
3. The executor/s named in the will refuse the trust;
4. The executors named in the will fail to give bond;
5. If a person dies intestate
In these instances, instead of letters testatmentary, letters of administration are issued to the persons who shall act as administrator.
So the order of preference is mentioned in Sec. 6.
(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 and willing to serve.
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the
husband or widow, or next of kin, neglects for thirty (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, it may be granted to such other person as the court may select.
Now, how do we know whether or not the person may be appointed as an administrator. Aside from the fact that there is an order of preference in
Sec. 6.
In the case of IN THE MATTER OF INTESTATE ESTATE OF THE LATE JUAN LOCSIN SR. VS JUAN LOCSIN JR GR. 143737, DEC. 10, 2001 The deceased died without a will. Subsequently, Juan Locsin Jr. filed a petition for letters of administration praying that he be appointed to administer
the estate of the deceased.
What are his allegations in his praying that he be appointed as administrator?
First, that he is an acknowleged natural child of the deceased. Of course that during his lifetime, the deceaseed acquired properties and that he is
the only surviving legal heir of the decedent.
The question is: Is he an interested party such that he can be appointed as administrator of the estate of the deceased?
How do we know if a person is an interested party who can file the petition?
An interested party in an intestate proceeding is one who will be benefited in the estate such as an heir, or one who has a claim against the estate,
such as a creditor.
In the same manner, it is like a real party in interest. One who will directly be benefitted or suffers loss by the outcome of the suit.
Now, in the estate proceedings, there was a discussion on who is the next of kin. Kasi diba, the rule says "to the next of kin".
So the "next of kin" refers to those whose relationship with the decedent is such that they are entitled to share in the estate as distributee.
Like for example (we are talking of intestate succession) so who are the next of kin? Those who will be entitled to receive from the decedent or the
lega heirs of the decedent -- the children, parents, grandparents, nephews and nieces. So those within the direct line (ascending, descending) and
those within the collateral line within the 5th degree of consanguinity.
However, in this case, the petition of Locsin Jr. was denied by the court because he was not able to prove that he was an interested party nor the
next of kin of the decedent. Because here, his basis in saying he was the next of kin of the decedent was his birth certificate in the records. But here,
as we will discuss later, there were two copies of his birth certificate. There was one with the Register in Manila and a different one in Iloilo.
In the copy of the register of Iloilo, it was supposedly signed by the father, but in Manila, the copy was not.
The SC said that because there was discrepancy, there was suspicion as to the genuiness of the records. Accdg. to the SC, they should give more
weight to the copy in Manila because no one in Manila will be interested in falsifying the records. But if it is the hometown of the petitioner, they have
an interest.

18
Now, in the case of HEIRS OF BELINDA DAHLIA CASTILLO VS. DOLORES LACUATA-GABRIEL GR. 162934, Nov. 11, 2005
Here, the trial court appointed as administratix in the estate of the late Crisanta Gabriel her daughter-in-law.
The decedent here was Crisanta. She had a son, Roberto but subsequently, he also died and he was survived by his wife, Dolores. So Dolores is the
daughter-in-law of Crisanta.
Now the RTC appointed Dolores as special administratrix over the estate of Crisanta. Now, the grandchildren of Crisanta complained because,
according to them, Dolores is not the next of kin of Crisanta.
According to the heirs of Crisanta, the order that must be followed is the order provided for in Sec. 6 of Rule 78. So they being the next of kin, they
should be appointed to administer the estate of their grandmother.
The SC said that Sec. 6, Rule 78, the preference or order therein would not apply if it is just for the appointment of a special administrator.
So, the reason is because a special administrator is appointed pending the appointment of a regular administrator. So in the meantime, maybe
because there is some delay in the appointment and in order to prevent the estate from being wasted, a special administrator has to be appointed.
So in that instance, the order in Sec. 6 Rule 78 is not followed.
But if we're talking of appointment of a regular administrator, then that will be the time that the order provided for in Sec. 6 will be followed.
RULE 79
OPPOSING ISSUANCE OF LETTERS TESTAMENTARY.
PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION
Sec. 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 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.
So if you want to contest the petition filed by another for the issuance of letters testamentary to him or her, then you may file your opposition.
The opposition must be in writing, stating the grounds why the letters testamentary should not issue to the persons named therein as executors in a
will, or any of them.
So there shall be a hearing after notice. So a notice shall be issued by the court -- So the court has received an opposition to the
petition for issuance of letters testamentary, an order is issued setting the date of hearing. After that a hearing shall be conducted and
the court shall determine whether or not letters testamentary shall issue or letters of administration with a will annex instead.
Sec. 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 as 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 on the petition shall render void the issuance of letters of administration.
So what are the contents of the petition for letters of administration.
Again, when can you file for letters of administration?
1. If a person dies without a will, then you can file for letters of administration;
2. Or if there's a will and it does not appoint an executor;
3. Or there's an executor appointed in a will and you are contesting the appointment of that executor. So you are opposing the appointment of that
executor, so you also file a petition for issuance for letters of administration.
So you have to allege the jurisdictional facts. So what are the jurisdictional facts referred to?
As discussed in Pilipinas Shell Petroleum Corp vs. Dumlao, G.R. L-44888, Feb. 7, 1992,
1. Death of the decedent or the testator.
2. Residence of the decedent at the time of his death in the province where the probate court is sitting or, if he is an inhabitant of a foreign country,
his having left his estate in such province.
3. The gross vaue of the estate (CF BP 129 as amended by RA 1961)
Sec. 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 to the known heirs and creditors of the decedent, and to any other persons believed to have an interest in
the estate, in the manner provided in Sections 3 and 4 of Rule 76.
So this is the procedure. Actually when you become lawyers, this provision is not addressed to you but to the clerk of court. If you
want to be the clerk of court, then you have to take note of this rule.

19
Sec. 4. Opposition to petition for administration. - Any interested person may, by filing a written opposition,
contest the petition on the ground of the incompetency of the person for whom letters are prayed therein, or on the
ground of the contestant's own right to the administration, and may pray that letters issue to himself, or to any
competent person or persons named in the opposition.
So any interested person may file a petition. Again, an interested person is one who will be benefited by the estate, such as an heir, or
one who has a claim in the estate, such as a creditor. So the oppositor himself may want to be appointed as the administrator of the
estate.
Sec. 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 hereinabove required, and thereafter the court shall hear the proofs of the parties in support of their
respective allegations, and if satisfied that the decedent left no will, or that there is no competent and willing executor,
it shall order the issuance of letters of administration to the party best entitled thereto.
This is the procedure during the hearing for the issuance of letters of administration.
So who should show that the notice mentioned in Sec. 3 was given. It is not the court which must show that notice was given but it is the person who
opposed the petition or the person who wants himself to be appointed as administrator.
The person who wants to be appointed as administrator is not necessarily the one who is opposing the issuance of letters testamentary. Because for
example, if a person dies without a will, so you can outrightly file a petition for letters administration. But if there is already a person named in the will,
and you want yourself to be appointed as the administrator, then you have to oppose the issuance of letters testamentary and file a petition for
issuance of letters of administration. So you are the oppositor of that case.
So if you are the lawyer, before you proceed to presenting your evidence, you must first prove that notice was given.
Sec. 6. When letters of administration granted to any 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 to themselves.
So long as the applicant is qualified, meaning possessing the minimum qualifications, he may be appointed notwithstanding that there are other
persons who are better qualified. The court should appoint that qualified person if those persons who are better qualified did not file a petition for
their own appointment. The court does not have to wait for these people (with better qualifications) to file their petition.
RULE 80
SPECIAL ADMINISTRATOR
Sec. 1. Appointment of special administrator.- When there is 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 questions causing the
delay are decided and executors or administrators appointed.
So when shall a special administrator be appointed? When there is a delay in granting letters testamentary or administration by any cause, including
an appeal from the allowance of disallowance of a will.
Like for example, if a will is denied probate, then of course, letters testamentary shall not issue. And instead, letters administration. So if the order of
denial of the probate is appealed, then the court cannot appoint an administrator because the question as to whether the will is valid or not is
pending. So if the will is valid, the court should appoint the person named in the will, but if it is not, the court can appoint an administrator. But since
the case is pending, a special administrator may be appointed by the court until the question of validity is decided and an executor/administrator is
appointed as the case may be.
So in this case when there is a delay, the court may appoint a special administrator. So it is discretionary on the part of the court.
But in the case of Feliciano de Guzman vs. Hon. Judge Guadiz, Jr. G.R. L-48585, March 3, 1980:
Here petitioner filed a petition for the probate of a will and at the same time petitioner wanted himself to be appointed as executor. Subsequently, the
private respondents opposed the probate on the ground that all the real property of the deceased included in the wil were already donated to them
during the lifetime of the deceased.
Accdg. to them, there is nothing to probate because the properties included in that will are not owned by the testator. Although we learned before in
Wills and Succession that such question deals with the intrinsic validity of the will.
So there was a motion to dismiss/opposition. So here, the petitioner asked the court to appoint a special administrator because of the delay caused
by the motion to dismiss. Here, the estate consisted of 80 has. and it is claimed that it would lose P50,000 worth of palay each harvest, 2x a year. So
that was the reason advanced by petitioner why the appointment of a special administrator was prayed for.
The court denied the motion requesting the appointment of a special administrator. Accdg. to the judge, there is no need for the appointment of a
special administrator because here, the respondents were already in possession of the property covered by the will. So it can be preserved already.
So the issue is whether or not the judge gravely abused his discretion in not appointing a special administrator.
As I said, the appointing of a special administrator is discretionary on the part of the judge. But here, was there a grave abuse of that discretion?
Accdg. to the SC there was a grave abuse of discretion. The judge failed to distinguish between the partisan possession of the party litigants from
that of the neutral possession of the special administrator under the Rules of Court. When appointed, a special administrator is regarded, not as a
representative of the agent of the parties suggesting the appointment, but as the administrator in charge of the estate, and in fact, as an officer of the
court. The accountability which the court. which attaches to the office of a special administrator to be appointed by the court is absent from the
personal possession of private respondents.

20
So the special administrator is supposed to be neutral. He should not represent either party. He is an officer of the court.
So in this case, the opinion of the judge that there is no more need to appoint a special administrator defeats the purpose or the function of a special
administrator. Because naturally, the possession here of the private respondent would be adverse to the possession of the petitioner. They are
conflicting parties.
Accdg. to the SC, The only way to test the validity of the alleged donation in favor of the private respondents is to appoint a special adiu
administrator who will have the personality to file the corresponding action.
So a special administrator must be appointed so that this person, who is not partisan, shall file an action to determine whether or not the deed of
donation is valid. Because here, the petitioner is interested in having the donation declared null and void. On the other hand, the private respondents
are interested in sustaining the validity of the donation.
So even if it is discretionary, if there is a grave abuse of discretion, the SC may appoint a special administrator. So the circumstances
of each case must be taken into account.
Sec. 2. Powers and duties of special administrator. - Such special administrator shall take possession and charge
of 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 any
debts of the deceased unless so ordered by the court.
Just remember the primary reason for the appointment of a special administrator is to preserve the estate of the decedent while there is delay of the
appointment of a regular administrator.
The power of the special administrator to sell properties shall be based on order of the court, also the payment of debts of the deceased.
As to the qualifications of special administrator. We discussed this before in the case of Heirs of Belinda Dahlia.
Sec. 3. When powers of special administrator cease; Transfer of effects; Pending suits. - When letters
testamentary or of administration are granted on 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 to final judgment suits commenced by such
special administrator.
So when shall the powers of special administrator cease? Of course, when there is already an appointed a regular administrator/executor. Note that
a special administrator does not co-exist with a regular administrator.
What happens to cases already filed by special administrator?
They shall be continued by the regular administrator/executor. They may prosecute these cases through final judgment.
RULE 81
BONDS OF EXECUTORS AND ADMINISTRATORS
Sec. 1. Bond to be 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 court directs, conditioned as follows:
(a) To make and return to the court, within three (3) months, a true and complete inventory of all goods, chattels,
rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of
any other person for him;
(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 at any time come to his possession 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 one (1) year, and at any other time when
required by the court;
(d) To perform all orders of the court by him to be performed.
So as provided for in Sec. 1, before the executor/administrator enters upon the execution of his trust and duties, he must give a bond. The court shall
determine the amount of the bond taking into consideration the size of the estate. That is why many people even if they are named as executor,
refuse the trust because of the requirement of the bond.
So what are the conditions of the bond? Meaning these are what the executor/administrator shall do, otherwise the bond may be forfeited. So if they
refuse or they fail to perform any of these conditions from A to D, then the bond may be used to answer for any damages/losses that the estate
suffers.
So, these are generally the conditions of the bond.
1. An inventory
2. To administer the property
3. To render an account
4. To perform all orders of the court

21
Sec. 2. Bond of executor where directed in will. When further bond required. - If the testator in his will directs
that the executor serve without bond, or with only his individual bond, he may be allowed by the court to give bond in
such sum 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 a change in his circumstances, or for other sufficient cause, with
the conditions named in the last preceding section.
Assuming that the testator provided in his will that the executor shall serve without a bond, is he exempted from payment of the bond? According to
Sec. 2, they may still be required by the court conditioned only to pay the debts of the testator. But for example there is a change in the
circumstances and the court really feels that there is a need to post a bond, the court may require these persons to furnish bond even if the testator
in his will provided otherwise.
Sec. 3. Bonds of joint executors and administrators. - When two or more persons are appointed executors or
administrators the court may take a separate bond from each, or a joint bond from all.
So 2 or more persons were appointed as executors/administrators. It depends upon the court, pwede na na this person is required to post this much
amount of money, and this person this much amount of money. So meaning the court may require separate bonds for each of them or just one bond.
Sec. 4. Bond of 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 of the deceased which 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
to
such
other
person
as.
may be authorized to receive them
So the special administrator is likewise required to furnish a bond. But what are the conditions of his bond?
1. he shall render a true inventory of the estate;
2. he will account for the estate;
3. he will deliver the estate to the regular executor/administrator who will be appointed by the court.
So there are just 3 conditions for the bond of the special administrator.
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.
This applies to a situtation wherein a person is already appointed as administrator of the estate of the decedent. So when we say administrator, this
presupposes that the person died without a will. And then subsequently a will is found and the will is allowed to probate. So when the will is allowed
for probate, that means that this person no longer has any business to act as administrator because if there is a will, and a person named in the will,
then the duty of the court is to issue letters testamentary to this executor.
Or if there is no person named in the will, then the person who will be appointed to administer the will is what we call, administrator with a will annex.
So the authority given is letters of administration with a will annexed.
So again, the administrator ceases to have such power. Now, when shall the power of the administrator be revoked? Is it upon discovery? No, it is
only if the will is admitted to probate. Because if there is a will discovered, but it is denied probate, the administrator will still have to continue as an
administrator. But if the will is allowed, then we have the executor or administrator with a will annex.
What if there are already cases instituted by the administrator? I believe that they will just be continued by the executor appointed.
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.
So these are the grounds for the removal of an administrator. So he may be removed for cause or he may just resign. IF he resigns, it need not be
for a cause. But if he is removed, what are the grounds?
1. he neglects to render his accounts and settle the estate according to law;
2. he neglects to perform an order of the court;
3. he neglects to perfomr a duty expressly provided by the rules;
4. he absconds;
5. he becomes insane, otherwise incapable or unsuitable to discharge the trust;
Again, because the duty of the administrator requires the highest form of trust.. if for example the court or maybe the majority of heirs, or in general,
the administrator is no longer capable of being trusted, then he may also be removed as an administrator.

22
The grounds provided for under Sec. 2 are not exclusive. There can be other grounds so long as these grounds show that such person is no longer
fit to administer the estate of the decedent.
There is the case of PASCUAL VS. CA, GR 120575, MARCH 8, 1999Here, the RTC in Spec Pro No. 7554 (Settlement of the Intestate Estate of the Late Don Andres Pascual), so here, attorney's fees were awarded to
Atty. Santos equivalent to 15% of the 3/4 share fo the estate of Dona Adela Pascual.
The decedent was Don Andres Pascual. So since he died without a will, the proceeding was Spec. Pro 7554. First, it was Adela Pascual who was
the administratrix of the estate of the late Don Andres. So she was the one appointed by the court in Spec. pro 7554, and she was the one who hired
the services of Atty. Santos.
But during the pendency of the case, while the estate was under settlement, Adela Pascual died. Of course, being related to the late Don Andres
Pascual, she also had a share in the estate of Don Andres as an heir.
So she died, and subsequently the intestate court awarded atty.'s fees. Because supposedly, ang dapat magbayad ng atty.'s fees is yung namatay
na administratrix. It should be charged as expenses of administration.
So the question is where should the 15% be charged. According to the oppositors, the 15% should be not be taken from Spec. Pro 7554 because it
was not for the benefit of Don Andres Pascual.
Accdg. to the SC, it was proper to assess the attorney's fees from the estate of the late Don Andres Pascual. Accdg. to the SC, it is clear that Section
2, Rule 82 of the Rules of Court was the applicable rule, as Doa Adela was merely the administratrix of the estate of Don Andres. The claim was
against the estate, not the administratrix. Extinction of a claim under Section 21, Rule 3 of the Rules occurs only when a defendant dies, therefore,
this section is not applicable to the case at bar.
Why? Because the obligation to pay the attorney's fees even if it should have been by the administratrix but only because it was by reason of spec.
pro 7554 such that when the administratrix died, the obligation did not die with her because it attached to the estate, not to the administratrix. So
Adela was merely the administratrix. Her actions were even for the benefit of the estate. So it was proper for the court to assess the 15% out of the
estate of Don Andres Pascual.
So that is one effect of the death of the administratrix. Claims which should have been assessed from the administratrix by virtue of
her functions/duties as administratrix will not die with her death. It can be continued against the estate which is the true party in the
case.
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.
So what happens to the acts executed by the executor/administrator before his removal? They shall have the same validity. So this can also be
applied to cases prosecuted because this may apply to a case wherein a person is appointed an administrator but his powers has been revoked by
the discovery and approval of a will for probate. So it is as if there is no revocation. The cases shall be continued.
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
So the powers of new executor/administrator. So they shall have the same powers exercised by the former administrator/executor. Again, like in Sec.
3, they can continue to prosecute or defend action commenced by the former executor/administrator. So it is just like a substitution of the parties.
Please take note of the case of Mendiola vs. CA, G.R. No. 92999, October 11, 1990. This is just an illustration of a case wherein the administrator
was removed because he failed to pay the estate taxes, to render an accounting and settle the estate in accordance with law.
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.
So Sec. 1 talks of inventory and appraisal to returned within 3 months -- meaning the administrator or the executor shall make an inventory and
appraisal with the assistance of the appraisers and submit it to the court.
What is an inventory? It is just a procedure to determine what properties are to be included in the estate. When you have a store diba.. you
determine that these are the numbers in the store of this kind of goods. Appraisal meaning the value of those specific items included in the inventory.
So all properties, real or personal which are
1. in the possession of the executor or administrator; or
2. even those which are not in the possession of the executor or administrator, but which has come to his knowledge.
So even if these properties are not in actual possession of the executor or administrator, he will also include in the inventory those
properties which has come to his knowledge, because later on, the court will have to determine whether the executor or administrator

23
has exercised due diligence in recovering the properties of the estate. Like for example, he knows that there are properties of the
estate in the possession of 3rd persons who are holding the properties adversely against the estate. So his obligation, as a general
rule, is to institute those actions for the recovery of those properties from third persons.
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.
So what articles should not be included in the inventory?
1. Of course the wearing apparel of the surviving spouse because again, that is not part of the estate. Of course, the clothes of the children are not
included also.
2. the marriage bed and bedding;
3. such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased, like for example katong
namatay sya naay isa ka sakong bugas, this of course will not be included in the inventory.
What power does the probate court have with respect to questions regarding the ownership of the property? We discussed before that with respect
to questions regarding ownership of the properties, these are matters originally not within the jurisdiction of the probate court because these matters
already pertain to the intrinsic matters of the will -- so during the distribution.
But, for the purpose of determining whether or not these properties are to be included in the inventory, the court may determine provisionally the
ownership of these properties, subject of course to a separate proceeding which is precisely intended to determine the real ownership of the
property.
How about teh conjugal partnerships of gain or the absolute community of spouses? Diba, we know that during the marriage, properties acquired by
the husband and wife shall be considered their absolute community or conjugal partnership. Do we include in the inventory the share of the
husband? Do we determine whether this property is the share of the surviving husband in the absolute community/conjugal partnership?
Remember that the absolute community or conjugal partnership shall be liquidated in the same proceeding of the estate.. in the intestate or testate
proceeding of the deceased spouse. So, naturally, the court will have to first determine which properties belong to the absolute community/conjugal
partnership, and after the determination of those properties, the court will liquidate. And after that they will have to divide the properties between the
estate of the deceased spouse and the share of the surviving spouse.
From the share of the deceased spouse, we also determine the inheritance of the heirs. So assuming that A and B, during their lifetime, acquired
properties worth 1 million. At the time of A's death, the absolute community shall be dissolved. So 1,000,00/2= P500,000 to the surviving spouse as
his share in the absolute community property (plus of course his/her paraphernal/capital properties).
The other 500,000-- this shall be B's estate (So si A ang namatay) plus his paraphernal properties. And then of course, we add the donations inter
vivos to arrive at the net estate. So you know this already from wills and succession.
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.
So during the settlement of the estate of the deceased, the widow and the children shall receive an allowance for their subsistence during the
proceedings.
In the case of SANTERO VS. CFI OF CAVITE 153 SCRA 728 (Sept.14, 1987):
Here, there were 2 classes of heirs.. So for example, the first family and the second family. But both families are illegitimate. Are these families
entitled to support during the pendency of the proceedings?
The SC said yes, because the law did not specifically give the allowance to the legitimate family of the deceased. So it is stated "the widow, and
minor or incapacitated children of the deceased person" without specifically saying legitimate or illegitimate.
How about the spouses? Are the spouses here entitled? No, because, these are merely common-law spouses. So the spouse ("widow")
contemplated under this section is the legal spouse. But of course the children are entitled.
Also in the case of MORE AND SONS VS. WAGNER, the SC said that if the estate is obviously insolvent, meaning the liabilities of the estate are
more than its assets such that assets are not enough to pay the taxes, debts and allowances, then the court will not allow to give subsistence
allowance to the heirs or to the spouses, children. So only if the estate can afford it.
So, meaning in the settlement of the estate of course, preference shall be given to the debts and charges. If there is an excess, the
residual value shall be given to the heirs of the decedent.
If any part of the property is given to the widow or the children as their allowance, in excess of the fruits of these properties, these shall be
considered as advances to their inheritance. Because usually the allowance will be taken -- for example, the property is a building. And the
meantime it is being leased.
So first, you get the allowance from the fruit or the income of the property. Kung wala na, it shall be taken from the property itself, but
again, it shall be considered as advances to their inheritance.

24
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.
So the executor/administrator may examine partnership books and/or properties. For example, the testator/decedent was a member of a partnership.
What happens if a partner dies? The partnership is dissolved, and naturally liquidated.
Prior to the appointment of the executor/administrator, can the heirs themselves exercise the right to copy the books, examine the books, compel the
pship to make a dissolution and liquidation of the estate? Yes, it can be done by the heirs. We discussed that in succession. Because upon the death
of the decedent, his right to compel the partnership to dissolve the liquidate, are inherited by the heirs. So prior to the appointment of
executor/administrator, the heirs may themselves, require the partnership to conduct such liquidation and winding up.
But if there's already an administrator/executor, such right now pertains to the administrator/executor.
Now what happens, for example, if the administrator/executor refuses to exercise any of the rights which mentioned under the rules of court which
are granted to him, can any of the heirs of the deceased exercise these rights?
So there is an administrator appointed and for example, he is required to bring action to recover properties of the decedent, but he refuses to
exercise this right or fails to do so. So who can exercise these rights?
Again, the heirs may exercise these rights. As a general rule, if there is already an appointed executor or administrator, all actions for and in behalf of
the estate, must be done through the administrator/executor.
But (1) if the administrator fails or refuses to exercise these rights, or (2) the heirs would want to bring such actions against the
executor/administrator -- so these are the exceptions -- the heirs may bring actions for and in behalf of the estate.
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.
So, this is part of his obligation to preserve the estate of the decedent. So he shall maintain in tenantable repair the houses and other structures and
fences belonging to the estate.. but of course, the expenses here incurred by the admin or executor shall form part of the expenses of the estate.
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.
Of course the goal here is to settle the estate of the deceased.
So how do you settle the estate? You pay the debts and after that, you deliver the residue of the estate to the heirs entitled thereto.
So if the executor possesses property, he shall use them to pay for the debts of the estate, and not his own debts. Athough in the subsequent rules,
there is here the compensation of executors. And that is of course provided by law, the executor cannot decide by himself that this is my
compensation.
RULE 85
ACCOUNTABILITY 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.
Okay, so what is the accountability of executor/administrator? He is chargeable with the whole of the estate which has come to his possession.
First of course, we know that the executor/administrator has to make an inventory of the estate. In his inventory, he shall itemize the properties which
belong to the estate. And accordingly, he shall also state the value of these properties. So for example, these are the properties of the estate and the
total value of the estate is worth 10Million.
So he is accountable for that amount. At the rendition of his account, he should itemize also the expenses incurred by the estate. Assuming that out
of the 10Million, what remains in the hands of executor/administrator is only 2Million, so he shall also account where the 8 Million went.

25
So he is chargeable with the estate which has come to his possession, at the value of his appraisement contained in the inventory. Kung unsa tong
gihatag nga value sa court, that is his accountability. If he cannot return the said amount, he should at least explain to the court the reason why the
10Million is now only 2 Million.
The law says, "and with the proceeds of so much of the estate as is sold by him, at the price at which it was sold. "
Assuming the value of the property appraised is 8Million. But the executor/administrator was able to sell that property at 16 Million, for how much
shall the executor/administrator account for such property? He should appraise it at the value for which it was sold, and not its public appraisal.
Because again, his position as executor/administrator is to preserve the estate of the deceased and to prevent it from being wasted or dissipated. He
is not there to profit or gain. His position is one with the highest form of trust and confidence.
What if the property was sold for less than 8Million. So how much shall the executor/administrator account for the property? Only 7
Million, for as long as the sale was reasonable. Because of course, you cannot always impose your price upon the buyer. For as long
as the sale was not to the prejudice of the estate.
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.
So this is just a continuation of Sec. 1. If he sells the property for more than its value, he shall account for the proceeds of the property for the value
at which the property was sold, not at its appraised value.
Now, for example, the estate has obligations for debts amounting to 10 Million. But because the executor/administrator negotiated with the creditors
of the estate, the creditors condoned 2Million. So the creditor accepted 8Million as full settlement of the debt of the estate.
Assuming that the property of the deceased was 30Million. So the executor/administrator paid debts amounting to supposedly 10Million, but since
the creditor condoned 2 million, 8 million na lang. So how much should be the net estate to be reported by the executor/administrator?
So he should report it at 22 Million. He should not profit by the performance of his duties. He shall charge in his account the actual
amount which he has paid for the settlment, otherwise, it would be easy to make money.
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.
Again, we discussed before that it is the duty of the executor/administrator to collect the debts due to the estate. What if the debtors are difficult, hard
headed and estafador and the executor/administrator is not able to collect? Of course, these debts shall not be charged to the executor/administrator
as long as he exercised due diligence in collecting these debts.
But if for example, the debtor was willing to pay, and yet the executor/administrator did not collect and then the debtor died and
nawala iyang properties, of course that is the negligence of the executor/administrator . The debt remained uncollected through his
fault, and he shall be accountable for that.
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.
Okay, so the executor or administrator uses or occupies any part of the real estate. The obligation again of the executor/administrator is to account
for the value of the occupation-- the amount agreed upon between him and the parties, or the court.
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.
So again, as discussed, it is the duty of the executor/administrator to pay the debts of the estate, to raise money for the estate, to
preserve the estate, and he is required to exercise due diligence in the performance of those duties. And if he is negligent, then he is
chargeable for the losses of the estate. And of course, we discussed before that the executor/administrator before entering his duties,
is required to furnished bond, these may be charged on his bond.
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.
So again, because the executor/administrator is acting for and in behalf of the estate, that is why any profits derived by the executor/administrator in
the performance of his duties must be reported as part of the estate. So also must all expenses be recorded.
For example, a case was filed against the executor/administrator, and he lost in that case and he was required to pay damages -- if it
is prosecuted by the executor/administrator in good faith, and diligently, those amount charged against him being an
executor/administrator may form part of the account of the estate.

26
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, onehalf 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.
So Sec. 7 talks of other expenses which were not mentioned in the preceding sections. For example, per diem of the executor because I don't know
if a person will willingly devote his time and energy in settling the estate of a deceased person for free. So naturally, he will be given a compensation
but it is very minimal.
Or pwede commission depende sa value sa estate. Or if the estate really requires effort and time and grabe jud kalisod i-settle, the court may allow
higher amounts.
Or for example, the testator in his will, provides for the compensation to be given to the executor, then that compensation shall govern. Unless of
course it is so small that the executor feels that it is not commensurate with his efforts, then he may ask the court for another amount.
What if there are two or more executors/administrators? How shall they divide the fee? So it shall be apportioned by the court based on quantum
meruit.
So what if the executor/administrator is also a lawyer, and in the course of his being an executor/administrator, he also made use of his legal skills, is
he allowed to charge attorney's fees? No, he is not allowed. So for example, he is a lawyer and he does not want to use his legal skills, then he may
hire another lawyer and may charge the expenses of this lawyer to the estate.
Question from Ms. Silva: Ma'am, even if with the consent of the heirs?
A: If with the consent of the heirs, then that shall be taken as advances from their respective shares. Sa ilaha man jud gihapon na ultimately diba?
But if it is with the creditors, and the estate is not enough to pay all the creditors, the heirs do not have any say with regard to the payment of
attorney's fees because it may prejudice the creditors. So if it is residual.. naa'y residue, pwede nila ingnon nga "sige, icharge na lang na sa estate",
pero kung naay creditors and maapektuhan ilang credit, dili na pwede.
Sec. 8. When executor or administrator to render account. - Every executor or administrator shall render an
account of his 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.
Okay, so when shall the executor/administrator render his account? Within within one (1) year from the time of receiving letters testamentary or of
administration -- so one year from his appointment, unless of course, for example, the estate is so large and it is very complicated, so it is not
enough for him to render an account, he may ask for an extension. Or the court may require him/direct him to render such account until the estate is
wholly settled.
TESTATE ESTATE OF TUMANG VS. LAGUIO - here, the executrix filed a petition to terminate the testate proceedings on the ground that she
already has finished rendering the final account of the estate. So she wants the proceedings to be declared as terminated and closed.
Now, here, the heirs of the testator opposed the motion of the executrix because accdg. to them, the executrix has not yet rendered an accounting
with respect to the cash and stock dividends which the estate received.
But accdg. to the executrix, the heirs already waived their right to an accounting because they had already received the cash and stock dividends
from the executrix and in fact, they already signed an acknowledgment receipt stating that they already received the cash and stock dividends.
So is it still required for the executrix to render an accounting when in fact she has already rendered her final account, and also she already
delivered the cash and stock dividends to the heirs who acknowledged the same. (haba ng issue ni mam)
Accdg. to the SC, she is still required to conduct an accounting. The fact that the executrix already rendered her final account does not divest the
court of its jurisdiction to require her to render account. And the requirement of rendering an account applies particularly to this case because the
cash and stock dividends were received after she rendered her final accounts. So she is still required to render an account of the other assets
received by the estate. This is covered by the last paragraph of Sec. 8.. "and he shall render such further accounts as the court may require until the
estate is wholly settled. "

27
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.
So for example the executor/administrator has already rendered an account and there is an objection to the account, or the court is not so sure as to
the correctness of such account, then the executor/administrator may be examined under oath. Meaning, he really swears to God that the account
he made is really true and correct. And he may be asked questions while he is under oath. What is the consequence of having the examination
under oath? He may be held criminally liable for false testimony/perjury.
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.
RULE 86
CLAIMS AGAINST ESTATE
Okay, so rule 86 talks about claims against the estate. What claims may be allowed as claims against the estate.
We have to distinguish between claims that can be filed against the estate itself and those which may be filed against the executor/administrator.
Because it does not mean that if the claim cannot be filed against the estate, that that claim is altogether be claimed because there are claims that
may be filed against the executor/administrator.
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.
The notices to creditors shall be issued after granting letters testamentary or of administration. Meaning after the appointment of the administrator or
the issuance of the authority to the executor appointed in the will of the testator.
So all persons having money claims against the estate to file them in the office of the clerk of court.
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.
Okay, when shall these claims against the estate be filed by the creditors? Under Sec. 2, it shall be not more than 12 months nor less than 6 months
after the publication of the notice mentioned in Sec. 1.
So, the court after the issuance of the letters testamentary or of administration, issues the notice to the creditors. So the executor/administrator will
have this notice published. So within not less than 6 months of the publication of that notice, nor more than 12 months.
What if the court will say "within 6 months, claims by the creditors against the estate must be filed"? Is that sufficient compliance with Sec. 2? Is
within 6 months the same as not less than 6 months nor more than 12 months?
No, because when you say within 6 months, that is less than 6 months. So there is to be a period of time na 6 months after the notice, wala sa'y
claim ana nga time. 6 months after upto the 12 month, then claims against the estate must be filed. So this is what we call as STATUTE OF NON
CLAIMS.
What happens if there are claims which are filed beyond 6 months? Okay lang for as long as it is within 12 months. But what if it is beyond 12
months from the first publication of the notice. What happens to the claim which is not presented within 6-12 months... for example the creditor filed it
on the 14th month, may it still be allowed?
Yes, the claim may still be allowed as long as it is before the order of distribution. " , 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 -- so there must be a
cause-- and on such terms as are equitable -- like for example the creditor was in a coma during that time, so how can he file?--, allow such claim to
be filed within a time not exceeding one (1) month"
Where should we start counting the 1 month? So he has one month to file his claim as long as it is not beyond the order of
distribution. So the one month period could be anytime within the period covered from not less than 6 months upto the order of
distribution.. so for as long as it is not beyond the order of distribution.

28
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.
So this refers to the publication of the notice by the executor/administrator. The notice which is mentioned in Sec. 1. So his obligation is to publish
the notice for 3 weeks successively in a newspaper of general circulation and at the same time to be posted for the same period (3 weeks) in 4
public places in the province and in 2 public places in the municipality where the decedent last resided.
Because again, this will set the prescriptive period for the filing of claims against the estate. So diba, not less than 6 months nor more
than 12 months from the 1st publication of the notice.
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.
This is another duty of the executor/administrator. He shall execute an affidavit-- again, the relevance of this setting the date of the
first publication and the last publication is for the determination of whether or not the claims are filed within the statute of non-claims.
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.
These are the claims which must be filed within the period prescribed in Sec. 2.. so these are those which are covered by the statute of non-claims.
So you have to file these claims before the estate, not against the executor/administrator. And the period to file these claims as provided in Sec. 2 is
not less than 6 months, nor more than 12 months from the first publication of the notice.
So what are these claims?
1. Claims for money arising from contract, express or implied, whether the same be due, not due, or contingent.
When you say claims for money arising from contract, like for example, contract of loan, sale, or any other contract express or implied. Of course,
this must be contracted by the decedent during his lifetime. Ngano, pwede ba makautang ang tao after his death? Because sometimes, this may
happen because kamo, if you are already notaries public, you should be careful in notarizing documents because you might be notarizing a
document executed by a person who died 10 years ago.
2. Claims which are not due or contingent
Due-- before the death of the decedent, the claim has already matured.
Undue claims -- what is the purpose why you have to present the claim before the estate even if it is not yet due? It is not for collection
but merely for the approval of undue claim.
Contingent claims -- those claims which may or may not happen. The purpose of having this contingent claim presented to the estate is
for approval, not for collection.
Example: A is a surety or guarantor, and B is the debtor-decedent. So now that B is dead, A is afraid that the creditors will pursue his properties for
collection. Diba as a surety or guarantor, you have the right of reimbursement from the real debtor, but in the mean time you are not yet sure if the
creditor will go first against the estate of the deceased, or will go after you. So in the meantime kay wala pa man nahitabo, so you present your claim
to the estate to have that claim approved.
3. Claims for funeral expenses
4. Claims for medical expenses of the decedent's last sickness
5. Claims for judgment for money against the decedent.
Assuming during his lifetime, A contracted a debt and he refused to pay so a case was filed against him and the creditor in that judgment won, so
that is a judgment for money against the decedent.
But remember that not all judgments for money.. only those judgments for money arising from contracts whether express or implied.
For example, A figured in an accident during his lifetime and a case for quasi-delict was filed against him. And then the victim in that case won, but A
already died. So there is also a judgment against him (A) to pay or indemnify the victim. That is not a money claim, that is a claim arising from quasidelict. Although it is still a judgment for money.
What happens if it is not for a contract express or implied? Does it mean that it cannot be collected anymore? For example, A was adjudged to pay
his victim 1 million, but he is already dead, and it cannot be filed as a claim against the estate.. so is the claim extinguished by the death of A?
No, it shall be filed against the executor/administrator, not against the estate.

29
Diba there are several stages in a case.. we're talking of money claims against the decedent (and arising from contract whether express or implied).
FIRST SCENARIO: So for example the money claims was filed against the decedent during his lifetime, and during the pendency of the case, the
decedent died. What happens to the action for collection filed against him?
So the case shall be dismissed but the claim should be filed as a claim against the estate. So it shall be part of the claims which must be filed within
the statute of non-claims.
SECOND SCENARIO: If there is already a case decided and there was an appeal, what happens to the action if the decedent died during the
appeal?
In that case, there shall be a substitution of the deceased by his legal representatives, or the heirs.
THIRD SCENARIO: The action was already decided and the action was decided against the decedent. There was already a motion for execution
against the decedent and then he died. What happens to the motion for execution? Magpadayon ba ang execution?
No, it shall be prosecuted as a claims against the estate. So the motion for execution shall be dismissed, and instead the judgment itself against the
decedent shall be filed against the estate and covered by the statute of non-claims.
FOURTH SCENARIO: What happens if naa na'y motion for execution and then nagsale na, then namatay sya, what happens to the sale? Should it
be abandoned?
In that case, you just proceed with the sale.
Now, what happens to those other expenses not mentioned under Sec. 5? Like expenses for administration for settlement of the estate of the
deceased, or for lawyer's fees hired by the executor/administrator. Diba, there are still expenses incurred after the death of the decedent, what
happens to those expenses? How can you claim those other expenses after the death of the decedent? Like taxes?
They shall be filed against the executor/administrator and not against the estate. So they may be collected from the executor/administrator
personally or by motion in the intestate/testate proceedings.
Now, for example you are the creditor of the decedent, and then you failed to file your claim within the statute of non-claims and beyond the order of
distribution by the court, do you still have any other remedy?
Yes, if for example the estate or the executor/administrator files a claim against you for money claims also. So you may set off your own claims as
creditors as your counterclaim in the case filed by the estate. Even if it is already beyond the statute of non-claims, even if it is already beyond the
order of distribution. But again remember, for as long as your claims is not barred by the statute of limitations. Although already barred by the statute
of non-claims, but for as long as it is not barred by the statute of limitations.
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.
So this talks of a decedent who was either a solidary debtor or a joint debtor. If the obligation is solidary, what is the consequence? A and B are
solidary debtors, C the creditor may proceed for the entire amount either against A or B.
So if it is a claim against the estate and the deceased is a solidary debtor, you may collect from the estate the entire amount due. It shall be the duty
of the executor/administrator to demand reimbursement from the other solidary debtors.
But if the decedent is only a joint debtor. A and B joint debtors for 1Million, A died, C can only proceed against the estate for 1/2 of 1Million because
that is A's joint liability. C can only demand from A a proportionate amount of the debt, and this applies if presented as a claims against the estate.
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.
Sec. 7 is very important because this is a favorite bar question.
Okay, so assuming it is a money claims against the estate. So it may be covered by the statute of limitations. Okay, so assuming that A during his
lifetime contracted a debt of 1Million. As a security thereof, he mortgaged a parcel of land. So namatay si A, what happens to the creditor who has
not been paid by A? So what are his remedies?
1. The creditor may abandon his security.
So meaning he may just disregard the land mortgaged to him and then if for example the claim is due and demandable, so he may present his claim
against the estate as a due claim. So he shall have no right over the security anymore.
If the obligation is not yet due, and he wants to abandon his claim against the security, then he can present his claim as an undue claim and have it
approved.

30
2. The creditor may foreclose the mortgage.

Who is the defending party in that case? The action is filed against the executor/administrator. It is not filed against the estate.
But once there is deficiency, he may file the claim for the deficiency before the estate of the decedent, within the statute of non-claims.
But how do we know if whether or not there is a deficiency? Diba magfile ka ug foreclosure against the administrator/executor and for example the
proceeds of the property are not enough to discharge the debt, you can claim the deficiency. Now, once you know there is a deficiency, you can file
that as a claim against the estate within the statute of non-claim.
What if lumampas na ang statute of non-claim? This is another instance of a contingent claim. Assuming that the creditor wants to foreclose the
mortgage and he wants to file a foreclosure against the administrator/executor, and dili pa sya sure kung naa ba'y deficiency. So in the meantime, he
already presents his contingent claim against the estate within the statute of non-claim. So he can have it approved such that if he already forecloses
the property and later on he discovered that there is a deficiency, so he can still claim the deficiency from the estate because he already had it
approved before as a contingent claim.
3. The creditor can foreclose the mortgage at any time within the statute of limitations.
For example, a mortgage contract -- so within 10 years and not necessarily within the statute of non-claims. But in this case, the creditor loses his
right to the deficiency. So he can only rely on the proceeds of the sale of the property foreclosed.
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.
So we are talking about a claim of the executor/administrator himself as against the estate. So under Sec. 8, there arises a necessity of appointing a
special administrator. So this is another instance where a special administrator is appointed because the purpose here is to avoid conflict of interest.
Diba, the executor takes charge, administers the estate, pays the debt, and then he has his own claim, so naturally he will satisfy first his claim. So a
special administrator is appointed to ensure impartiality and to prevent conflict of interest.
[Instances when special administrator is appointed: (1) When there is delay in the appointment of a (regular) administrator/executor; (2) if the
executor/administrator himself has a claim against the estate.]
The last paragraph says: "The court may order the executor/administrator to pay to the special administrator necessary funds to defend such claim."
So pwede na ang executor hatagan nya ug kwarta ang special administrator para idefend ang iyang kaugalingon nga claim. (So pwede na ang
executor bigyan nya ng pera ang special administrator to defend the claim of the executor) Because the claim is made by the executor/administrator,
so he may be ordered to give to the special administrator necessary funds to defend that claim of the special administrator. (Sa lecture ni ma'am
special administrator, but I think regular administrator lang dapat. But please check-hann)
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 folder.
So how to file the claims.. Remember that these claims are presented before the clerk of court during the testate or intestate proceeding. You need
not file a separate case for the claim. Diba, if it is a testate proceeding, so there is an executor appointed. So once the letters testamentary are
issued, there is a required notice to the creditors. So you file the claims before the Clerk of Court. So if it is an intestate proceeding, after the
appointment of an administrator.
So it is a claim against the estate. Because if we are talking about those claims which are not covered by the statute of non-claims, these are not
covered, meaning they cannot be presented before the clerk of court as money claims against the estate. So you have to file these claims against
the executor or administrator, i.e. money claims arising from quasi-delict. -- You cannot just go to the clerk of court and present the judgment ordering
the decedent to pay you. You must file a case against the decedent as represented by the executor/administrator.
So how? By delivering the same with the necessary vouches to the clerk of court within the statute of non-claims and then present a copy thereof to
the executor or administrator.
So if the claim is founded on a bond, et cetera.. so the original need not be presented except upon demand by the executor and must be
accompanied by affidavits if in case lost or destroyed.

31
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.
So here, if you are the executor or administrator, how to answer the claim presented by the creditors? So you are given 15 days after service of copy
to file your answer. So meaning, 15 days from receipt of the claim, you must file your answer. This may be extended by the courts.
So what shall the executor/administrator do with respect to the claim?
First, he may admit the claim. Second, he may specifically deny the claim, i.e. it was already paid or was never contracted by the debtor, or Third,
if he has no knowledge to admit or deny, he shall state such lack of knowledge.
If the executor/administrator knows that the deceased is entitled to offset such claim from the creditor, he should set that up as a counterclaim. He
should allege that he is entitled to offset his own claims against the creditor's claims. What is the consequence if the executor/administrator fails to
allege as a counterclaim the claim of the decedent? It shall be barred forever.
Take note ha that it is a different thing if we're talking of the creditor. As I've said before, if you are the creditor, and a claim is filed against you by the
estate and you have your own claim against the estate, but you failed to file your own claim within the statute of non-claims and later on a case is
filed against you by the estate, so you may set that up as a counterclaim even if it is beyond the statute of non-claims.
But if you are the executor/administrator and a case is filed against the estate by the creditor, and the estate itself has a claim against that creditor,
then at that time the executor/administrator should off set or should allege in the answer that he is entitled to offset, otherwise, he shall be barred
later on from claiming that from the creditor.
So this refers to a creditor who presented his claim against the estate within the statute of non-claims. So for example, later on naay creditor na mufile ug case against the estate or administrator, and then the estate itself has a counterclaim against that creditor, he can always set that off as a
counterclaim. If that certain creditor did not earlier present that claim within the statute of non-claim. Pero kung ipresent niya (creditor) within the
statute of non-claims then it should be alleged in the answer that the estate has a right to offset or to counterclaims.
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.
So if it is an admitted claim, the court may order it to be submitted without hearing but of course, if there are legatees, devisees, heirs and they
oppose, then they shall be given the opportunity to file their answers. That is if the executor/administrator himself admits, still the legatees, devisees,
or heirs must be given the opportunity to answer because they might not agree with the executor or administrator.
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.
So if the claim is not admitted, and there is an answer already filed or upon the expiration of the time to answer, it shall be subjected to trial. The
court may refer the case 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.
So the judgment with respect to the claim. For example there is a claim presented and it is approved or disapproved by the court, so the approval or
disapproval of the court of that claim is subject to appeal. But remember the filing of the claim is just part of the testate/intestate proceeding. Diba,
the claim is filed by the creditor during the testate or intestate proceeding. Diba one distinction between a civil action and a special proceeding is that
in civil actions, there is only one appeal of the judgment disposing the action. In a special civil action, there maybe multiple appeals. So this is one
example of multiple appeals.
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
So this refers to, for example, a claim was presented and the executor/administrator offered to pay but the creditor refused. And then subsequently a
case was filed and the creditor was unable to obtain a favorable judgment, he cannot recover costs but instead he must pay to the executor the cost
from the time of the offer.
We learned before that there are certain claims which must be presented as claims against the estate, otherwise, they shall be deemed barred. So
they cannot be recovered anymore, especially if they are filed beyond the statute of non-claims or beyond the order of distribution.

32
So we will discuss several cases in Rule 86

1. PNB VS ASUNCION GR L-46095, NOV. 23, 1977
Here, in this case, PNB filed a case for collection against its solidary debtors including Manuel H. Garedo. In 1975, before the case could be
decided, Baredo died. Subsequently, the court dismissed the action on the ground that Defendant Manuel Baredo, one of the solidary debtors
already died, and the suit was for money claims and does not survive the death of the defendant, so pursuant to Rule 86, Sec. 6, the claim shall be
filed against the decedent as if he was the only debtor, without prejudice to the right of the estate to recover contribution from the others.
So there were several solidary debtors and they were made defendants in a case for collection and during the pendency of the case, one of the
defendants/solidary debtor died. So the court dismissed the case on the ground that because one of the solidary debtors died, and the action was
one for collection which does not survive, it shall be presented as a claim against the estate.
Is the court correct in dismissing the case?
No. "A perusal of Sec. 6, Rule 86 of the Rules of Court reveals that nothing therein prevents the creditors from proceeding against the surviving
solidary debtors."
Sec. 6, Rule 86 merely provides the procedure wherein if the creditor would want to proceed against a deceased solidary debtor, then he should file
his claim before the deceased solidary debtor -- if he wants to proceed against the deceased solidary debtor. But nothing there prevents the creditor
from instead pursuing his claim against the surviving other solidary debtors. Just in case lang na gusto nya iproceed ang debt sa patay na nga
solidary debtor, so he has to file his case sa estate of the deceased solidary debtor. But he can proceed against the other solidary debtors. So in this
case, the choice is left to the creditor against whom he proceeds.
"In case of the death of one solidary debtor, the creditor may, if he so chooses, proceed against the surviving solidary debtors without necessity of
filing a claim in the estate of the deceased debtor. "
So the case should not have been dismissed. The case should have proceeded-- because there are still other solidary debtors. We know that if it is a
solidary liability, the entire debt may be claimed against any one of the solidary debtors.
"To require the creditor to proceed against the estate making it a condition precedent for any collection action against surviving debtors to prosper,
would deprive him of his substantive right provided in the Civil Code."
Because the New Civil Code says he may proceed against any one of the solidary debtors. It does not mean that if one of the solidary debtors died,
he should already proceed or file his claim before the estate and that he has no choice but to file a claim against the estate.
"To subscribe to the view of the trial court that the case should be dismissed, then in effect, the trial court repealed the civil code by the language of
the rules of court."
We also know that procedural rules cannot repeal a substantive law. It (Rules of Court) cannot prevail over the civil code.
2. SUI MAN HUI CHAN VS. CA GR 147999, FEB. 27, 2004
The petitioners of this case, the heirs of Ramon Chan, operated a restaurant business and they were renting the premises wherein they were
operating the restaurant.
So here, Ramon Chan, during his lifetime, it was him who operated the restaurant. After he died, his heirs continued the operation of the restaurant.
The lease contract here was entered into between Ramon Chan and the owner of the building during Ramon's lifetime. So he died, and then the
heirs did not pay the rentals. So a case was filed against the heirs for the collection of the rentals due.
The heirs contended that they are not the parties in interest because in the first place, the contract of lease was entered into between Ramon Chan
and the plaintiff. They were not the parties to the lease contract. Accdg. to the heirs, the claims for rentals due is a money claim and accdg. to Sec. 6,
Rule 86, the claim should have been presented as a money claim in the estate of Ramon Chan.
Accdg. to the SC:
First, as to the question as to whether or not the heirs are the real parties in interest. YES, they are the real parties in interest because as we have
learned in succession, the rights and obligations arising from a lease contract are transmissible.
So the heirs from the moment of death of the decedent, they inherit the rights and obligations of the decedent in the contract of lease.
Second, as to the contention that the claim for unpaid rentals constitutes a money claim which must be presented as a claim against the estate, the
SC said that the heirs are not correct. The unpaid rentals accrued after the death of Ramon Chan. If those rentals accrued before the death of
Ramon Chan, then it should be presented as a claim against the estate. But since the unpaid rentals accrued after the death of Ramon Chan, then
the unpaid rentals were obligations of the heirs. So the action was properly filed against the heirs. So there is no basis to apply Rule 86 of the Rules
of Court.
3. PNB VS. CA GR. 121597, JUNE 29, 2001
Here, spouses Antonio and Asuncion Chua were the owners of parcel of land. Upon the death of Antonio, the intestate court appointed his son, Allan,
as the special administrator of Antonio's intestate estate.
Now, the intestate court authorized Allan Chua to obtain a loan from PNB, and that loan was secured by a real estate mortgage over the land which I
mentioned earlier.
Because of nonpayment of the loan, PNB foreclosed the mortgage extrajudicially by virtue of Act No. 3135. And because the proceeds of the sale
were not enough to discharge the entire obligation, PNB sought to recover the deficiency from the estate of Antonio Chua.

33
Now here, the claim for deficiency was opposed by the heir of Antonio on the ground that under Rule 86 (what are the remedies of the mortgageecreditor? Diba you have 3 remedies?) -- the bank availed of the 3rd remedy where it chose to foreclose the mortgage and because of that, it is
deemed to have abandoned its right to the deficiency.
Accdg. to PNB, it should be entitled to claim the deficiency because Act 3135 specifically applies to extrajudicial foreclosure of mortgage. Under that
act, a creditor is entitled to the collection of the deficiency.
So the issues in this case are (1) whether or not the bank is entitled to the deficiency and (2) whether or not the Rules of Court apply in the particular
case.
So ordinarily, a creditor who avails of the remedies under Act 3135 are entitled to be paid deficiency. But in this particular case, do we consider this
case to be falling under Act 3135? Who contracted the loan? Was it the deceased? It was a special administrator.
With respect to that, aside from Rule 86 we can also apply Sec. 7 of Rule 89. Even if we said that the loan was contracted by the special
administrator, if the loan or the mortgage was contracted by a special administrator or an administrator authorized by the court, it is as if the loan was
contracted by the deceased himself.. so "which shall be as valid as if the deed had been executed by the deceased in his lifetime."
Because of this, this should have been covered by Rule 86 of the Rules of Court. Because the bank chose the 3rd remedy, then it is deemed to have
abandoned its claim to the deficiency. Rule 86 applies as well to extrajudicial foreclosures of mortgage. IT is not limited to judicial foreclosure sales.
So that was the ruling in this case because it is as if it was the deceased himself who contracted the debt himself.
But assuming na it was an heir of the deceased who contracted the debt and it is not with authority from the intestate court, then that is not covered
by Rule 86 because it is an ordinary mortgage obligation. Rule 86 does not find application in that particular case.
4. UNION BANK VS. STA. IBANEZ GR 149926, FEB. 23, 2005
In this case, the deceased during his lifetime contracted a loan from UB solidarily with his son, Edmund. And then of course, the debtor, Ephraim Sta.
Ibanez died. UB filed an action for collection against the heir of Ephraim, not against Edmund the co-maker but against another heir.
The contention was that under the Civil Code, the heirs inherit the obligation of the decedent. So a case was filed against that heir for collection. Will
the action prosper?
We learned in succession that money debts they are transmissible to the heirs. But in this case, there was already an intestate proceedings instituted
and here the creditor did not present his money claims as a claim against the estate. Instead, it filed a claim against one of the heirs of the decedent.
The SC said that the requirement of filing the money claims against the decedent's estate in the testate/intestate proceeding is mandatory. This
requirement is for the purpose of protecting the estate of the deceased by informing the executor or administrator of the claims against it so that they
may examine each claim and to determine if it is a proper one which should be allowed.
The purpose of requiring mandatorily the presentation of the claims against the estate is for the speedy settlement of the estate of the deceased and
to pay off the debts as soon as possible.
So because this was not presented as a money claim against the estate, then it should not be properly raised in a separate case. It could have been
allowed if Edmund was made a party defendant, but he was not impleaded in the case, so there is no reason for the case to continue.
Because the creditor failed to present the money claim as a claim against the estate during the intestate proceeding, then it is already barred as
provided in Rule 86.
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.
So what actions may or may not be brought against the administrator/executor.
First, you have to remember that actions which are covered by the Statute of Non-claims are not supposed to be filed against administrator/executor.
So those claims which are not covered by the statute of non-claims, those claims can be properly claimed as actions against the
administrator/executor.
Specifically, what actions may be brought against the administrator/executor?
1. actions to recover real or personal property, or an interest therein,
So for example during his lifetime the decedent successfully occupied or titled a parcel of land in his name and for example he died and here comes
the rightful owner, against whom should he file that action to recover the property? He should file it against the executor/administrator of the
decedent.
What if there is no executor/administrator appointed? He may still recover the property by filing the case against the heirs of the decedent.
What are actions to recover real or personal properties? Accion reivindicatoria, accion publiciana, unlawful detainer, forcible entry, an action to
recover possession of personal property or replevin.
2. actions to enforce a lien

34
So actions to foreclose a mortgage. Again we discussed this in Rule 86 diba? Diba the mortgagee-creditor can abandon his security and proceed
against the estate? So in that case that is a case against the estate. OR he can foreclose the mortgage and recover the deficiency within the statute
of nonclaims.
So the foreclosure itself of the mortgage is filed against the executor/administrator. But the deficiency, it is presented as a claim against the estate.
Or the creditor can foreclose the estate at any time without any right to the deficiency. Again, the foreclosure is filed against the
executor/administrator.
3. actions to recover damages for an injury to person or property, real or personal,
During his lifetime, the A (decedent) injured B. B filed a case against him, but before the case was decided, A died. What happens to the case?
Should the action be dismissed?
So if it is a money claim arising from a contract, example a loan, and a case is filed for collection and during the pendency of the case, A died, we
discussed before that the case should be dismissed and the claim be presented as a money claim against the estate.
If it is for quasi-delict, and the case is pending and then the offender died during the pendency of the case, the case should not be dismissed
because it is considered as an action which survives.
So what happens now? There will just be a substitution of parties. So the executor/administrator shall be substituted.
The actions referred to in Sec. 1 of Rule 87, these are actions which survive. So the proper remedy is if these actions are pending during the lifetime
of the decedent, there must be substitution of parties.
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.
Again, the same discussion in Sec. 1. For actions which survive, it should by the executor/administrator who should file cases and who should
defend cases for and in behalf 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.
We discussed already in succession that upon the moment of death of the decedent, the heirs step into his shoes. So the heirs may file actions for
and in behalf of the decedent.
But again, when we reach partition --- I think we already discussed that when there is already an administrator or executor appointed, and we are
referring to actions which survive, then those actions should be commenced for and in behalf of the decedent by the executor or administrator.
Are there instances that even if there is already an appointed executor/administrator the action should be filed for and in behalf of the estate by the
heirs?
So there are certain situations wherein the actions may be instituted by the heirs themselves:
1. IF the executor or administrator is unwilling or he refuses to institute or commence the action;
2. If the actions is against the executor or administrator himself.
[3. If there is no executor/administrator as in the case where estate is extra-judicially settled.
4. After distribution of estate
5. Del Rosario vs. Del Rosario case heir can compel administrator/executor to deliver property donated inter vivos to him by the decedent
6. Reservees in cases of Reserva Truncal may compel executor/administrator to deliver property reserved by the reservor] 1
[recap of previous meeting]
So as a general rule, we discussed before what actions may be filed by or against the executor/administrator. So generally, those actions which
survive.
Because what happens if the actions do not survive, particularly money claims arising from contracts express or implied, expenses for the last
illness, etc? We discussed before that these should be presented before the estate as claims against the estate.
Sec. 3.
As a general rule, even if we said that diba, the moment of death of the decedent, his heirs succeed to the rights and obligations of the decedent,
and may therefore file an action for and in behalf of the decedent. But if there is already an administration proceedings and there is an executor or
administrator appointed, then the action must be prosecuted by the administrator/executor.
After the termination of the testate/intestate proceeding or if the residue of the estate is already divided among the heirs, then it that case, the heirs
may file for and in behalf of the decedent.
In the case of Del Rosario vs. Del Rosario 2 Phil 321, there is an exception to the general rule that the heirs may sue, not thru
executor/administrator, or until his claim or share is assigned to him.
Nos. 3-6 were inserted by transcriber, these were not discussed by Atty. Yangyang in the record transcribed but in subsequent and other lectures.

35
So if for example during his lifetime, the decedent made a donation to an heir and that certain donation was not delivered to the heir. Because we
distinguished before donations inter vivos from donations mortis causa. If it is donation inter vivos, then transfer of ownership is made during the
lifetime of the decedent. So there is already transfer of ownership although we discussed also that upon the death of the decedent, the donations are
collated. And for as long as the donations are not inofficious, then they are respected.
So if we're talking of a donation made by the decedent during his lifetime and it is not delivered, then the heir may compel the administrator/executor
by an action for that purpose to deliver the property subject of the donation. So that is also an exception.
And another exception is, do you still remember Reserva Truncal (Art. 891)? You should not forget! The reservor is under obligation to reserve the
property inherited by the propositus from the proponent in favor of the reservees who are relative within the 3rd degree of the propositus coming from
the same line from whom the property was inherited.
So the reservees are also the heirs of the propositus. So they may maintain an action against the executor/administrator to delivery the property
which the reservor is bound to reserve during his lifetime. So the heirs themselves may file the action.
Now, what if there are no testate or intestate proceedings commenced? Diba if the decedent died with a will, so that has to be probated. So that is
testate proceeding. If he died without a will we settle his estate through intestate proceeding. So an action should be filed to settle the estate of the
decedent. But again, we learned that there are exceptions -- If all the heirs agree among themselves, and there are no creditors affected, to
extrajudicially settle the estate.
So what happens if the estate is extrajudicially settled? That is one instance wherein no executor/administrator is appointed. So naturally, actions for
and in behalf of the estate can be filed by the heirs themselves.
In the case of Fernandez vs. Aninias (Dec. 1932), here during his lifetime, the deceased contracted obligations. And to secure the payment of his
obligations, he mortgaged a certain property. And then he died. So of course, that property formed part of the estate. But that property mortgaged
was already distributed among the heirs.
Because if you are the creditor-mortgagee, you have 3 remedies, diba? Here, the creditor just chose to foreclose the mortgage within the statute of
limitations. Against whom shall he file the action to foreclose the mortgage? Should it be against the executor/administrator, as we have discussed
before?
In this case, the SC said that it should be filed against the heir to whom the property was given. Not anymore against the
executor/administrator because there was already a distribution of the properties.
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.
So the executor/administrator may condone debts against the estate but with permission or authority of the court.
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.
Again, what are the rights of the executor/administrator? He can foreclose the mortgage belonging to teh estate. Meaning, here the estate is not the
debtor but the deceased is the creditor. So the executor/administrator has the right or authority to file the action to foreclose the mortgage.
I forgot to discuss before: A case for foreclosure of mortgage is filed before the court. But there is also an extrajudicial foreclosure of mortgage. So
the creditor, without resorting to judicial action, may foreclose the mortgage. But usually, the creditor cannot foreclose the mortgage without a special
power of attorney given by the debtor in favor of the creditor. There has to be a SPA allowing the creditor to extrajudicially foreclose the mortgage.
Now, what happens if before the maturity of the debt, the debtor died. Diba in the law of agency, the death of the principal, extinguishes the authority
of the agent. So in this case, the debtor is the principal and the agent is the creditor. What happens to the authority of the creditor to extrajudicially
foreclose the mortgage? Is it extinguished by the death of the debtor?
That was discussed in Vda de Jacob vs. CA, 184 SCRA 294 - Just remember that the SPA given by the debtor to the creditor is for
the protection of the creditor. So that is constituted in favor of the creditor. That is not an ordinary agency that contemplates
exclusively the representation of the principal. So in that case the power of the creditor to extrajudicially foreclose the mortgage is not
extinguished by the debtor's death. So that survives.
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.
Remember when the property of the deceased is concealed, embezzled or conveyed fraudulently. This remedy is available in favor of the executor
or administrator, the heirs, devisees or legacies or creditors.
Now this happens during the intestate or testate proceedings and the heirs, etc. suspects that another person is conveying the properties of the
deceased fraudulently. So they may complain before the testate/intestate court and they may examine the person suspected. What is the purpose
here of the proceeding? Can the probate court decide as to the ownership of the property conveyed?

36
No, because as discussed in succession, the probate court has limited authority. It can only make provisional ruling on the ownership of the property.
As to the recovery of the property itself, there has to be a separate proceeding filed for that purpose. The probate court cannot order the property to
be reconveyed to the estate of the deceased.
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.
From the complaint of the administrator/executor, any person having possession of the property of the estate may be required to render a full
account.
What happens if he refuses to render a full account? He may be cited for contempt. (So he may be imprisoned by the court. So the
probate court has that authority).
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.
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.
This contemplates a situation wherein the deceased, during his lifetime fraudulently conveyed properties in order to avoid his obligations.
So what are the obligations of the executor/administrator in this case?
Remember in OBLICON, what are the rights of the creditor in so far as his credits are concerned? What are the actions that the creditor can bring
against the debtor? Because here, the debtor is the deceased.
1. So the creditor may compel the payment of what is due him (specific performance).
2. Or the creditor may bring such action which the debtor during his lifetime could have brought or he may be subrogated to the rights of the debtor.
For example, the debtor has no money but he has certain collectibles from another person, and the debtor refuses to bring that action, so the
creditor may be subrogated to the rights of the debtor to collect such debts.
3. Or if the debtor, after contracting his debts, he alienates his properties in fraud of his creditors, and the debtor has no sufficient property to pay his
creditors. So the creditors have the right to impugn those alienations made by the debtor (accion pauliana)
So this is an example of an accion pauliana. So the creditors are not left without any remedy, they have remedies as provided under Sec. 9
It is just required that there is a deficiency of assets in the hands of the executor/administrator for the payment of the debt. Because if there are
sufficient assets, the creditor should file his claim against the estate within the statute of non-claims.
But if there are no sufficient assets and the deceased, during his lifetime, made fraudulent alienations, this is the remedy of the creditors.
So what are the grounds? "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"
Now is it really the obligation of the executor/administrator to bring the action to impugn the alienations made by the decedent during
his lifetime? Here, as a general rule, it is discretionary in his part. He may or may not bring the action. But it becomes mandatory if the
creditors apply for it and the creditors pay such part of the costs and expenses or give security to the executor or administrator.
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.

37
Sec. 9, like sec. 10 both refer to a situation where the debtor, during his lifetime made fraudulent conveyances of his properties and as a result of
such, his creditors are prejudiced. But the difference is that in Sec. 9, the action is brought by the executor/administrator for and in behalf of the
creditors. So it may be discretionary or mandatory depending on the circumstances.
Here, the actions itself is brought by the creditors. When will this be allowed?
1. If the executor/administrator refuses or fails to commence the action against the 3rd person who may be in possession of the property;
2. If the alienation or conveyance is made in favor of the executor/administrator himself.
So in these cases, the action may be brought by the creditors.
So you just have to know the distinctions: If the action is filed by the creditor because the executor or administrator fails or refuses to bring the
actions, then the permission of the court is necessary. And there is a bond requirement. And the action, altough brought by the creditor, shall be in
the name of the executor/administrator. The reason here is because the creditor brings the action because the executor/administrator refuses/fails to
bring the action.
But if it falls in the 2nd case, there is no need of permission from the court before the action may be brought. There is no bond requirement. And the
action shall be in the name of all the creditors, and not of the executor/administrator precisely because the conveyance is in favor of the executor or
administrator, so it is a case filed against him.
BUT in BOTH cases, the creditor shall have a lien upon any judgment or costs of the proceedings. Meaning that if he wins in the case, so all the
expenses incurred by the creditor in bringing the action, may be recovered from the losing party. So for example the value of the property
fraudulently conveyed is more than the value of the debt, he may get from the property the costs and expenses incurred in order to bring the action.
So we are now in Rule 88, payment of the debts of the estate. How should the debts of the estate be paid because as a general rule, if there are
debts, then before the properties of the estate can be distributed, the debts must first be paid. But there are some instance when there can be
distribution even if there are still debts, and that is if it is not known that there are debts due when the distribution was made.
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.
We are talking of when the estate has sufficient properties to pay the debt. So if the estate has sufficient assets to pay for the debts, the executor or
administrator shall pay the debts.
This is after hearing of the money claims against the estate which we have discussed before. They must be presented within the statute of nonclaims. Although other debts may still be entertained as long as these claims are presented before the order of payment. So this is now the order of
payment: if the estate is sufficient, then pay the debts.
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.
This refers to a situation wherein the testator specifically provides for the payment of a particular debt in his will. This refers to debts acknowledged in
the will by the testator. So how should they be paid?
But take not that even if the debt is already acknowledged by the testator in his will, the creditor in that case, should still present his claim to the
estate within the statute of nonclaims. Otherwise, if he fails to do so, then his claim shall be barred. So the presentation of the money claim before
the estate is mandatory even if the debt is acknowledged already in the will. So that was discussed in Santos vs. Manarang 27 Phil 209.
So how paid?
If the testator provides for the manner by which that debt is to be paid, like for example, he says in his will, this debt of 1M shall be paid out of my
money in Metrobank, then that is how it is to be paid -- out of the money appropriated.
If there is no such provision in the will specifically providing for the manner by which the debt is to be paid, according to Sec. 2, it shall be paid out of
the real or personal properties which are not disposed of by will. So those which are not given by legacy or device. Because if these properties are
already given by way of device or legacy, then as much as possible, if there are other properties not given by way of legacy or devise shall be used
for payment. So give effect to the will of the testator.
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.
The rules give you the order of liquidation of assets for the purpose of payment of the debts of the testator.
So the personal estate of the deceased shall be used first for the payment of debts. So the movable properties. If the estate has cash, jewelry, cars.
So those are used in the payment of debts as a general rule.

38
Now, the rule says, "not disposed of by will". So this means that properties which are not given as legacy.
So, when shall real properties be sold to pay the debts of the decedent?
Under Sec. 3, for example, if there are personal properties, but they are already disposed of in the will, then even if they are personal properties,
they should not be touched. So you go to the real properties which are not disposed of by will.
Second, if there are personal properties and they are not sufficient to pay the debts.
And when the sale of personal properties are detrimental to the participants of the estate. So whether or not the sale of personal properties will be
detrimental to the estate, for example, heirs, then in that case, it shall be the court which shall decide as to whether or not the sale is really
detrimental.
Now, remember, if real properties are to be sold, under Sec. 3, it has to be with the authority of the court. So for the payment of debts,
if you are going to sell real properties, you seek first the permission of the court.
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.
So you still remember contingent claims? These are claims which are filed during the statute of non-claims which are not yet due and demandable.
So there is just a probability that this person may have a claim against the estate, like in case of surety.
So accdg. to Sec. 4, when the claim becomes absolute, then of course, the contingent claim shall be paid.
For example, the contingent claim becomes absolute after the order of distribution. There is now an order of distribution, are we saying that the court
has to wait first for the contingent claims filed to become absolute before it can order the distribution of the estate or payment of the debt?
No, because again, it is just a contingent claim.. it may or may not become absolute. It does not delay the distribution of the estate and the payment
of debts.
So the court can already order the distribution of the estate or the payment of the debts, but of course because there is a contingent claim which may
become absolute, then it (estate) has to appropriate or reserve funds sufficient to discharge such claims.
Or if the estate is insolvent, meaning the assets of the estate are not sufficient to pay the liabilities and debts, then in that case, the creditors cannot
be fully paid their claims.
So if the (net) estate is P100,000, and there are 5 creditors and the claim of each creditor is 40,000 each. So that is 200,000. So obviously you
cannot pay the entire obligation.
In that case, how much shall each creditor be entitled? Only a proportionate share in the estate. So 5 sila, same ilang claim, so they are entitled to
equal shares. so P100,000 divided by 5.
So for example, 1 sa kanila naa'y contingent claim, so out of the P100,000, the estate shall reserve 1/5.. so only a proportionate
amount of the estate. If the estate is NOT solvent.
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.
What does sec. 5 provide? So there is a contingent claim, and during the statute of non-claims, it was not presented before the court.But he presents
it after the order of payment within 2 years after the notice to the creditors. Can that claim still be allowed?
No. Remember here, the 2 years refers to the presentation of contingent claims which have become absolute. Katong sa statute of non-claims, the
claim is still not absolute. So for the approval of that claim, you must present that to the court which has jurisdiction over the in/testate proceedings
within the statute of non-claims. (But even if it is beyond the statute of non-claims but it is within the period before the order of payment or order of
distribution)
If for example, the contingent claim becomes absolute within 2 years from the time limited to all creditors to present their claims. Assuming that the
in/testate court says: Notice to all creditors, all claims must be presented to this court within a period of 10 months.
Assuming that the order was given January 1, 2008. So the period for the presentation is from the 6 month to the 10th month dapat na magpresent
mo ug claim. (Kasi not less than 6 months but not more than 12 months)
So January 1, 2008.. so by July 1, 2008 upto October 31, 2008, dapat daw ipresent ang claim. So that is the order of the court.
So a contingent claim is presented and approved by the court. Now assuming that within 2 years from October 30, the claim becomes absolute, so
Sec. 5 is now the procedure.

39
So it may be allowed by the court if it is not disputed by the executor/administrator. If disputed, it may be proved and allowed or disallowed by the
court as the facts may warrant.
Now what happens if the court allows it, the creditor shall receive payment because the claim is already absolute. If the estate is sufficient, so the
entire claim.
What happens if the absolute claim is presented beyond the 2 year period mentioned in Sec. 5? Is the claim barred?
It is presented beyond 2 years, is it already barred?
Accdg. to Sec. 5, "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 heirs, legatees, or devisees."
So the claim can still be paid because "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. "
Even if it is not presented within 2 years after becoming absolute, it can still be enforced, but it is now enforced against the heir, legatee or devisee
who received the estate. IT is not barred. Why? Because in the first place, you already presented your contingent claim for approval within the
statute of non-claim. The issue here is the presentation of that contingent claim (which is now an absolute claim). So it is just a matter of procedure.
So if it is presented within 2 years from the period provided for the creditors to present their claim, then the procedure is different. If after 2 years,
then there is another procedure-- that is the creditor proceeds against the heirs, devisees, or legatees to whom distribution was made.
So their liabilities (for the payment of the then contingent, now absolute claim) shall be in proportion to their share received from the property of the
deceased.
So if the debt is worth 1M, and there are 4 heirs who received the properties. So each shall be liable to the extent of 25% of the debt.
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.
Here, there was already a distribution of the estate of the decedent but it turned out that there are still debts to be paid. What happens now? Are the
heirs liable for the payment of the debts and expenses which are not paid during the settlement proceedings?
Yes, they are liable. So the court shall order the heirs to contribute to the payment of that debt or expense.
Remember under Sec. 6, the rule says "may issue execution as circumstances require" -- as a general rule, before when we discussed settlement
of the estate, writs of execution for money claims ordinarily are not issued against the estate.
If for example, during the lifetime of the decedent, a case for collection of money was filed against him and there was already a final judgment and
then the debtor died. What happens to the final judgment? Can the complainant file a writ of execution to execute that final judgment?
No, because the proper procedure would be to present that judgment to the estate as a money claim. So that is why ordinarily, when we talk of
money claims, writs of execution are not issued.
But here, it still refers to a money claim but the estate was already distributed and the debts and expenses were not paid. So here, the creditors may
proceed against the heirs, legatees or devisees, and a writ of execution may be issued by the in/testate court so that the debts will be paid. So this is
one exception.
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.
So here we're talking of an estate which is insolvent. So how shall the debts be paid? We follow the provisions of the civil code with respect to the
concurrence and/or preference of credits.
So Sec. 8 refers to preference and concurrence of credits -- one creditor is paid ahead of the others. One example of a preferred creditor is one
whose claim attaches to a particular property. Like for example, a worker with respect to, for example, nag loan mo panghimu ug building, so the
creditor, contractor or engineer is a preferred creditor with respect to the building for their unpaid claim.
For example, that building is to be sold to pay the debts of the decedent, they shall be paid first. If for example, the proceeds are sufficient to pay
those contractors, so bayaran ang uban creditors.
If we are talking of creditors who are not preferred, then we apply the rule on concurrence of credits. So each creditor shall be paid in proportion to
their respective claims.
For example, the property is P10,000. A has a credit for 2,500. B has a credit for P7,500. In that case, they can be both fully paid. But what if the
property/asset is only P5,000, how do we divide the P5,000? 25% of P5,000 shall be given to A, 75% shall be given to B.

40
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.
So here, the decedent was a non-resident at the time of his death. He has properties here in the Philippines, but he is insolvent. Accdg. to Sec. 9, 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."
So, even if the property is located here in the Phil, and the person is a non-resident of the Phil, still his properties in the Phil shall be reserved for ALL
his creditors, whether in the Phil or outside in the Phil. But again, since his estate is insolvent, the distribution is only 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.
This refers to a resident decedent but there are claims against him which are proved outside the Phil. Shall our in/testate court take honor such
claims proved outside the Phil?
Accdg to Sec. 10, we wil still honor the claims proved outside of the Philippines even if we're talking here of a resident decedent.
Sec. 10 applies to an insolvent resident decedent. So as long as these claims are (requisites before claims in a foreign country are allowed against a
resident decedent who is insolvent):
1. duly proved in another country;
2. 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
3. and there is a reciprocity in that country (of the creditors) and the Philippines.
Then that claim may be allowed.
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.
What happens if the order of payment is appealed by the creditors or the heirs?
Diba there is now an in/testate proceeding. So all creditors which have a claim against the estate. So within the statute of non-claim, there is a
presentation of the claims. And if proved, the court shall issue an order of payment.
So heirs pay A and B! So what if that order is contested by the heirs or executor/administrator?
So for example there are 10 creditors and one creditor's claim is contested, will that stop the distribution of the assets to the other 9?
Under Sec. 12, 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.
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.
So here, it does not mean that the court is prohibited from making a piece meal distribution of the estate of the decedent. So there may be a first
order of distribution. OR assuming that to the knowledge of the court, all the properties have been disposed of, but subsequently the executor or
administrator discovers other properties, so another order of distributon may be issued.
Or as we have learned in succession, the testator prohibits the partition of a certain property for 20 years, so this is another example
of subsequent order of distribution.

41
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.
So this merely says that the payment to the creditors must be made in accordance with the terms of the order of payment made by the in/testate
courts.
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.
When shall the executor/administrator pay the debts?
Accdg. to Sec. 15, it shall be within one year. But again, it is subject to an extension but these extensions shall not exceed 6 months, the total shall
not exceed 2 years. So just remember the period.
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.
This is just related to Sec. 15, an extension given if the original executor or administrator dies. So another extension may be allowed but not more
than 6 months, per extension and not exceeding 6 months beyond the time originally given to the original executor or administrator.
So the original executor/administrator diba he can pay within one year subject to the extensions provided in Sec. 15. But if that original
executor/administrator dies, he (new executor/administrator) can be allowed extension even beyond 2 years, as long as it does not go beyond 6
months from 2 years.
RULE 89
SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT
Sec. 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.
Sec. 1 talks of sale of personal properties of the estate.
First, there has to be an order of the court allowing the sale. If the sale is without court authority, as a general rule, the sale would be void.
Please remember the purposes for selling the property: so paying debts, expenses of administration, or legacies, or for the preservation of the
property.
How should the sale be done? Under Sec. 1, there has to be an application made by the administrator/executor.
We discussed before that even if the executor/administrator has under his administration the properties, still, if his purpose is to sell the property, as
a general rule, then it has to be with court authority.
It is also required under Sec. 1 that the heirs must be notified of this intention to sell the personal properties. Notice to the heirs and other persons
interested.
For example, some of the heirs are minors, and as we all know under the Family Code, minor children are under the natural guardianship of their
parents. Supposing that there are minor heirs, to whom must notices be sent, for example, notice under Sec. 1?
Is notice to the parents sufficient? No.
In the case of Maneclang vs. Baun 208 SCRA 179, the notice to the parents of the minor heir is not sufficient compliance. So the heir himself must
be notified.
If for example the minors are represented by counsels or guardians ad litem (appointed by the court), in that case, the notice will be sufficient.
So for parents alone, without any appointment from the court and they are acting as natural guardians of the minor children, notice to
the parents is not sufficient. Unless the parents are appointed as guardians ad litem.

42
Sec. 2. When court may authorize sale, mortgage, or other encumbrance of realty to pay debts and legacies
through personalty not exhausted. - When the personal estate of the deceased 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 legacies, 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 personal estate, for the purpose of paying such debts, expenses, and legacies, if it clearly appears that such
sale, mortgage, or encumbrances would be beneficial to the persons 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.
So under Sec. 1, we learned that personal property may be sold upon authority of the court for the payment of debts, etc.
When may the real properties of the estate be sold? So this is under Sec. 2.
1. When the personal properties of the deceased is not sufficient to pay the debts, etc.
2. When the sale of such personal estate may the business or other interests of those interested in the estate;
So even if there are personal properties in the estate, but to sell those would instead prejudice those who are interested in the estate.
3. where a testator has not otherwise made sufficient provision for the payment of such debts, etc.
So the testator has not made any provision.. meaning there are also not enough personal properties to pay the debts, etc. so what shall be used to
pay for these expenses, so in that case the court, upon application of the executor/administrator and with written notice to the heirs, in this case real
properties.
But the priority, as a general rule, it is the personal property. Only if there are no sufficient personal properties, or will prejudice the heirs, etc, then we
observe Sec. 2.
Again, the same requirement of notice as in Sec. 1.
What if for example, what is sold here is the hereditary share of the heir, not a personal or real property and it is without the approval or authority of
the court.. whaht is the status of the sale?
We're not talking here of a specific property, we're talking here of the ideal share of an heir in the property co-owned by him with the other heirs. For
example, A died leaving 4 heirs. So each heir own 1/4.
Now B sold his hereditary share to X.. so his 1/4 participation in the estate. Is the sale valid even if there is no authority by the court?
Yes. Sec. 1 and 2 cover specific personal or real property of the estate. If we're talking of your hereditary share, we discussed that in succession that
from the moment of death, the heirs already step in the shoes of the decedent inheriting the decedent's rights, obligations, properties. So therefore
the heir can sell his hereditary share, but not a specific property of the estate.
What if a specific property is sold? Not for the purpose of paying debts, etc. What is the status of the sale?
It is VOID because prior to partition, the heir does not know which specific portion of the estate belong to him. So that sale is void.But assuming that
upon partition, that same property is really given to that particular heir, then the sale now is valid.
NOT because the sale is validated, but because the heir who sold that specific property will now be estopped from claiming that the
previous sale was void.
Sec. 3. Persons interested may prevent such sale, etc., by giving bond. - No 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 court, 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 executor or
administrator, and may be prosecuted for the benefit of either.
So how can such sale under Secs. 1 and 2 be prevented?
Under Sec. 3, it can be prevented by a person interested in the estate by giving a bond.
Sec. 4. When 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 part 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 a 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.
Can there be a sale of personal or real properties not for the purpose of paying debts, etc? Under Sec. 4, the rule says it can be done if it will be
beneficial to the heirs, devisees, legatees or other interested persons. So we're not limited only to Sec. 1. So Sec. 4 is an exception to Sec. 1 2
Now, what are the requirements if the executor/administrator would want to sell real/personal properties for this (Sec. 4) purpose? Again there must
be a written application and the requirements of notice to the heirs, legatees, devisees.
2
Also Sec. 2 because Sec. 4 also mentions real prop I think lang ha!

43
Sec. 5. When 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 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 the personal estate or to sell, mortgage, or otherwise encumber the real estate for the
payment of debts or legacies in the other country, in the same manner as for the payment of debts or legacies in the
Philippines.
So Sec. 5 is also an exception to Sec. 2. As we said before when the executor or administrator sell real properties of the estate, it has to be for the
payment of debts, etc.
So under Sec. 5, even if it is not necessary to pay debts or other obligations or legacies in the Philippines, but it is necessary to pay for the debts,
legacies, expenses of administration of the deceased in another country. Again, here it has to be with authority of the court.
Sec. 6. When 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 as prescribed in this rule for the sale, mortgage, or other encumbrance of other real estate.
What if the executor or administrator was able to get properties, for example by proceeding against the properties of the debtors of the estate.. So
we're talking here of properties coming to the estate which were attached or foreclosed by the executor/administrator.
Can these properties be sold? What are the specific requirements before they can be sold?
The rule is the same in other properties.. If we are talking of personal properties to pay for debts, expenses etc., follow Sec. 1. If we're talking of real
properties, follow Sec. 2. Or if we are talking of personal properties and the sale of those properties will be beneficial to the persons interested, follow
Sec. 4. Or if we're talking of real properties to pay debts or expenses outside the Philippines, follow Sec. 5.
Sec. 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 as show that the sale, mortgage, or other encumbrance is
necessary or beneficial;
(b) The court shall thereupon fix a time and place for hearing such petition, and cause notice stating the nature of
the petition, the reason for the same, and the time and place of hearing, to be given personally or by mail to the
persons interested, and may cause such further notice to be given, by publication or otherwise, as it shall deem
proper;
(c) If the court requires it, the executor or administrator shall give an additional bond, in such sum as the court
directs, conditioned that such executor or administrator will account for the proceeds of the sale, mortgage, or other
encumbrance;
(d) If the requirements in the preceding subdivisions of this section have been complied with, the court, by order
stating such compliance, may authorize the executor or administrator to sell, mortgage, or otherwise encumber,
in proper cases, such part of the estate as is deemed necessary, and in case of sale the court may authorize it to be
public or private, as would be most beneficial to all parties concerned. The executor or administrator shall be
furnished with a certified copy of such order;
(e) If the estate is to be sold at auction, the mode of giving notice of the time and place of the sale shall be
governed by the provisions concerning notice of execution sale;
(f) There shall be recorded in the registry of deeds of the province in which the real estate thus sold, 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 as valid as if the deed had been executed by the deceased in his
lifetime.
Just remember that these are the procedure before giving the executor or administrator the authority to sell, mortgage or otherwise encumber the
estate of the decedent.
So an application -- so you have to state in the application what are the debts to be paid, the legacies to be satifsfied, location of these properties.
Second, the court shall set the time and place for hearing.
And then the court shall hear the application and there shall be a notice as discussed in Sec. 1, 2, 4 and 5. And then it says, If the court requires it,
the executor or administrator shall give an additional bond conditioned that such executor or administrator will account for the proceeds of the sale,
mortgage, or other encumbrance.
So again, you have to comply with the procedures laid down by the rules of court. If these procedures are not complied with the sale will be void.
A person interested in the property can later on assail the sale on the ground that the procedure was not strictly complied with. So even if there was
already an auction sale of the property and it was used in payment of the debt, the sale in that auction may still be contested by any person
interested if the procedures were not complied with.
In the case of GARCIA VS. RIVERA (1954, September. G.R. L-6760), here a person interested in the property contested the sale in an auction on
the ground that the procedures were not strictly complied with.

44
But this same person when the sale was being undertaken, he participated in the proceedings. And the SC said that assuming that
the sale was void, this particular person is estopped from questioning the sale because in the first place, he participated in the
proceedings.
Sec. 8. When a court may authorize conveyance or 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 the court shall execute the deed. The deed executed by such executor, administrator, or
clerk of court shall be as 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.
So here, an example here would be if the decedent during his lifetime, entered into a contract to sell his property and then he died.
So could you still enforce that contract and who will execute that contract in behalf of the decedent? So this is provided under Sec. 8
The procedure here again is for the executor or administrator to file an application to the court to sell that property and again there has to be notice
to the person interested. The deed of sale or other deed of conveyance shall be executed, in behalf of the testator, by the executor or administrator.
But supposing the agreement was to sell the property to the administrator/executor himself, who shall execute the deed? It shall be the clerk of court.
Remember, in all of the proceedings for the sale of properties of the estate, you just have to remember a common feature under this
provision.. what is that? There has to be an application by the executor/administrator and there has to be notice to the heirs, creditors
and other persons interested. Notice is indispensable as a requirement of due process.
Sec. 9. When court may authorize conveyance of lands 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.
Here the property was just held by the decedent during his lifetime in trust for other persons. What is the procedure if that property is going to be
sold?
Again, application and notice. There has to be authority of the court in all these proceedings.
Remember, even if you are already authorized by the court to sell real or personal properties of the estate, still that sale may be contested, if that
sale is not approved by the court. So aside from the authority given for you to sell the property, the conduct of the sale itself must bear the approval
of the court.
Why? Because there may be instances where the sale itself would differ from the authority given. What happens if the sale conducted was not
approved by the court (although there was a previous authority for the executor/administrator to sell such property)?
The sale is not valid. That was discussed in ____ vs. Ferrer 95 Phil 78. The sale is not effective unless approved by the Court even though leave of
court had been already obtained, especially if the sale materially varies from the authority granted.
Because maybe the executor/administrator was authorized to sell merely 1/4 of the property but he sold the entire property. So his
sale varies from his authority. So there is a need to have that sale approved by the court to be effective.
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.
So Sec. 1 tells you when the order of distribution of the residue must be made.
Previously we discussed the different stages of in/testate proceedings.
If w'ere talking of testate proceedings so the first part is the probate. Here we are dealing with the extrinsic validity of the will. The second phase
would be the distribution proceedings. If we're talking of legal or intestate proceeding, so there is just the settlement of the estate. You don't have to
go through probate.
As a general rule, the procedure in in/testate proceedings are divided into 3 phases:

45
1. Administration proceedings - here we are referring to the preservation of the estate, and the liquidation of the properties belonging to the estate.
So preservation of the estate whille the case is pending.
2. Liquidation proceedings- here the debts are paid, and then assets, expenses and we determine which properties properly belong to the decedent.
And then if there is a residue, we go to the
3. Distribution proceedings -- so here there is distribution of the residue after the liquidation to the heirs entitled thereto.
As a general rule, please remember that the distribution is made after the payment of the debts, charges, expenses, taxes of the estate. That is the
general rule.
Under the 2nd paragraph of Sec. 1, there is an exception. Even if the debts, taxes, charges are not yet paid, there may be a distribution IF the
distributees give a bond in the sum to be fixed by the court.
The condition for the bond is for the payment of the debts or expenses.
So to whom shall you distribute the estate? Among those who are entitled thereto -- the heirs, legatees, and devisees.
If there is a controversy as to who are the lawful heirs of the deceased, or the distributive shares to which each person is entitled then, it shall be
heard and decided as in ordinary cases.
So here, the heirs could now seek the declaration of heirship. So it is not in all instances that a declaration of heirship is necessary in in/testate
proceedings, only when there is a contest/controversy as to who are the heirs or as to their respective shares.
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.
We learned before in succession the concept of collation. It is the bringing back into the estate the value of those donations made by the decedent
during his lifetime. So the value of these donations shall be added to the value of the estate existing at the time of death.
And if we're talking of compulsory heirs, the donations made to them are deducted as advances from their legitimes. Donations made to strangers
shall be deemed included in the free portion.
So this collation is done during the distribution proceedings. Because diba we now have the net estate after the debts and charges have been paid,
we can now determine how much will each heir be entitled in the distribution.
If one heir received a donation from the decedent during the decedent's lifetime, that shall be deducted from his share because that is already
satisfied during the lifetime of the decedent.
Also, with respect to presumptive legitimes already received by heirs, we discussed before in Succession the concept of freak succession.
Like for example, the parents' marriage are declared null and void, there is a decree to the children of their presumptive legitimes. So
that shall be considered in the distribution proceedings -- so whether or not donations have been made to the heirs or whether or not
the heirs have already received their presumptive legitimes.
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.
So who will pay the expenses of partition? Accdg to Sec. 3, it shall be paid by the executor/administrator if he has retained sufficient assets for the
expenses of partition.. meaning, there is enough assets left in the estate to pay for the expenses of partition. OR 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.
Now if there is no sufficient asset retained by the executor or administrator because he already gave the properties to the heirs, then the heirs will
now contribute to the expenses of partition in proportion to what they have received.
Here, remember the court may issue an execution in the name of the executor/administrator against the party not paying for the sum assessed. So
here, a motion for execution made by the executor/administrator may be granted by the in/testate court to compel the heir or distributee to give his
share to the expenses of partition.
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.
So here, if there is already an order of parition then that should be recorded in the Register of Deeds if it pertains to real property.
You should know that if we're talking of real estate and their titles, so the titles are recorded in the register of deeds. And of course, prior to the death
of the decedent, the title will be in the name of the decedent.
Upon the death of the decedent, as we've said before, the rights, properties and obligations shall be inherited by the heirs. But the death certificate
alone does not authorize the register of deeds to transfer the title in the name of the heirs, devisees or legatees.

46
So in intestate proceedings, remember diba that there is a decree of the probate court (allowing the will) and that will be recorded, but remember that
in in/testate proceedings, there is always partition. The difference is if it is intestate, the partition shall be in accordance with the will of the testator.
So that (order) should be recorded in the Register of Deeds as his basis in transferring the title to the heirs.
If we are talking about intestate or legal proceedings, thhen the order of partition issued by the court should be submitted to the RoD as his basis in
transferring the title.
Assuming that the heirs did not go into judicial partition, so the extrajudicial partition executed by the heirs shall be the basis for the transferring of
the title, or if we are talking only of 1 heir, then the affidavit of self-adjudication, so that will be sufficient to transfer the title
Remember that it is the order of partition that terminates the administration proceedings. IT is not the approval of the project of partition which may
be executed by the executor/administrator, but it is the order of partition.
As a general rule, these are the steps to be followed in the administration proceedings:
1. So first, we have the payment of the obligations. So this is the liquidation portion.
2. If there is controversy as to who are the heirs of the decedent or what are the shares of these heirs, so we now have the declaration of heirship.
3. After determining after the heirs, then we have the execution or preparation of the project of partition. So the project of partition is a document
prepared by the administrator/executor setting forth the manner in which the estate of the deceased is to be distributed among the heirs.
So the project of partition may be present both in in/testate proceedings, but again, in testate proceedings, the project of partition must be in
accordance with the will.
3. After the approval of the project of partition, we then have the order of distribution.
So by that, after the order of distribution, the proceeding is now deemed terminated.
Now what happens if there's an heir who was deprived of his share and there was already a distribution of the estate of the decedent?
So an heir was not included, or was deprived of his share and the properties of the decedent were already distributed, so what is the procedure?
First, if the probate or intestate proceeding is not yet closed, then the remedy of the heir is just to file a motion to obtain or recover his share in the
estate. So that is just a motion in the probate or intestate court.
What if the proceedings have already been closed?
Of course, he cannot file a motion. So the remedy is the reopening of the proceedings.
Can we just say that the heir will file an independent action to recover his share instead of re-opening the proceedings?
NO. Why? Because if you file an independent action, you will be seeking the declaration of or the decision of a separate court with respect to the
order or decision of a co-equal court.
So it will lead to an absurd situation of nullifying the decree or order of a co-equal court. So as a principle, the courts cannot annul the decision of a
co-equal court. So it has to be in the same proceedings where the distribution was made. So the court which decided the proceedings must be given
the opportunity to correct itself.
Now, what if there was no distribution yet, what is the remedy of the heir who has been deprived of his distributive share of the estate?
If there is no distribution yet, then the remedy would be a motion for execution to compel the distribution of the estate.
If it is already beyond the reglementary period for the distribution, then he may file a separate action for the recovery of his distributive share..
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.
Basically, escheat is the proceeding undertaken by the State to acquire the properties of the decedent who left no heirs. So this is applicable only in
legal succession.
Now what entitles the State to get the properties of the decedent who left without heirs? What is the basis of the right of the State?
This is based on what we call the CADUCIARY RIGHT OF THE STATE.
What are the requisites so that the State may escheat the properties of the decedent?
1. Again, it is mandatory that the decedent died intestate;
2. Decedent has real or personal properties;
3. Decedent left no heirs or persons entitled to the properties.
How do we know that the person has no heirs?

47
We have to distinguish. If we are talking of relatives in the direct line, whether ascending or descending, then it should be that there should be NO
heir in the ascending or descending bisan up to the 100th degree. As in wala na jud!
If we're talking of the collateral line, the decedent must have no relatives surviving up to the 5th degree of consanguinity.
Who files the action or the petition for escheat? IT should be the Sol Gen or his representative and it should be in behalf of the Rep. of the Phil.
Where shall the petition be filed? (VENUE) So it shall be in the province where the deceased last resided, if he was a resident at the time of his
death. OR in the province where the decedent left an estate if he is not a resident at the time of his death.
How about jurisdiction for the escheat proceeding? Remember, follow BP 129 as amended. So it is dependent on the (gross) value of the estate, no
longer in the CFI. I'm sure by now you already know the distinction between venue and jurisdiction.
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.
So here, once the petition is filed, that should be published in a newspaper of general circulation. Remember here, it is for 6
consecutive or successive weeks, unlike in other proceedings where the general rule is only for 3 consecutive weeks. This is to give
other heirs (for example, naa jud diay sya'y heirs) the opportunity to get the properties.
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.
So after hearing, for example there are no oppositors or there are oppositors and it is proved that escheat is really proper, then the property shall be
escheated in favor of the State.
Particularly to whom or which institution?
If we're talking of personal property, then the city or municipality where the deceased last resided.
If real property, to the province, city or municipality where the property is located. Of course it would be physically impossible to get the real property,
for example the property is located in Tagum tapos idistribute nimo sa Digos.
So if he is a non-resident, then to the city or municipality where the properties, whether real or personal, are located/found.
It has to be emphasized that publication is a jurisdictional requirement. So if there is any defect as to the publication or it is dispensed
with, then the order is null and void.
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.
So this is the prescriptive period within which the heirs or the persons entitled to the estate may claim the property of the decedent which was
already escheated in favor of the State. So they can still recover the property within 5 years from the date of the order of judgment. After 5 years,
then that person is barred already.
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.
Other actions for escheats.. so for example, in violation of the law or the constitution. So Rule 91 shall also apply.
So specifically, Rule 91 applies to escheat proceedings governing the estate of the decedent who died without a will and without heirs.
Or it may be applicable to the recovery of properties alienated in violation of the constitution or the laws. So that is what we call a
reversion proceeding.
An example of this is if real properties were alienated in favor of an alien. Under the constitution, foreigners cannot own real properties in the Phil, so
any alienation in vilation of that provision, then reversion proceedings are proper and governed by Rule 91.
Or properties alienated in violation of a statute, an example is a homestead patent. And then by fraud, the person succeeded in obtaining the patent
and it is found out that he was not in actual possession or cultivation of the property, so he is not entitled to the patent.
So it should be the State who should institute the reversion of that property. So that is another example.

48
If we're talking of the right of the State to seek reversion of the property made in violation of the constitution or the law, that right of the State does not
prescribe. So it can be invoked by the State anytime.
The venue for that is the place where the land lies in whole or in part. So for example the whole property is in Davao City, so in Davao
City. Or if the land lies in a boundary, as long as a portion of it is in Davao City, so pwede ra dire.

Spec Pro Transcription

Diunggah oleh

Informasi Dokumen

Hak Cipta

Format Tersedia

Bagikan dokumen Ini

Bagikan atau Tanam Dokumen

Opsi Berbagi

Apakah menurut Anda dokumen ini bermanfaat?

Apakah konten ini tidak pantas?

Hak Cipta:

Format Tersedia

Spec Pro Transcription

Diunggah oleh

Hak Cipta:

Format Tersedia

Lecture Notes: Special Proceedings (Atty.

Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

2. The creditor may foreclose the mortgage.

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

So we will discuss several cases in Rule 86

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Lecture Notes: Special Proceedings (Atty. Leilani Yang-yang Espejo)

Anda mungkin juga menyukai