69089334 special proceedings (2)

8/13/2019 69089334 Special Proceedings (2)

1/69

Remedial Law: Special Proceedings

Herrera Abridged

SPECIAL PROCEEDINGS

GENERAL PROVISION

RULE 72

SUBJECT MATTERAND APPLICABILITY OF GENERAL RULES

Sec. 1. Subject matter of special proceedings.- Rules ! s"ec#$l "%cee'(s $%e "%)#&e& !%#' *+e !ll,#'( c$ses(a) Settlement of estate of deceased persons;(b) Escheat;(c) Guardianship and custody of children;(d) Trustees;(e) Adoption;(f) Rescission and revocation of adoption;(g) ospitalization of insane persons;(h) abeas corpus;

(i) Change of name;(j) Voluntary dissolution of corporations;(k)Judicial approval of voluntary recognition of minor natural children;(l) Constitution of family home;(m) Declaration of absence and death;(n) Cancellation or correction of entries in the civil registry.

Sec. 2.Applicability of rules of civil actions. - I' *+e $/se'ce ! s"ec#$l "%)#s#'s0 *+e %ules"%)#&e& !% #' %'$% $c*#'s s+$ll /e0 $s !$% $s "%$c*#c$/le0 $""l#c$/le #' s"ec#$l"%cee'(s.

Action: a formal demand of ones right in a court of justice in the manner prescribed by the court orby the la.

!pecial proceeding; an application or proceeding to establish the status or right of a party or aparticular fact.

"numeration in !ection # is not e$clusive.

%etition for li&uidation of an insolvent corporation is a special proceeding because it seeks adeclaration by the trial court of the corporations insolvency so that its creditors may be able to filetheir claims in the settlement of the corporations debts and obligations. 'ultiple appeals are alsoalloed here.

ases covered by the nterim *ules of ntra+corporate controversies are ordinary civil actions.

orporate recovery, petition for rehabilitation is also a special proceeding because it sought toestablish the inability of the corporate debtor to pay its debts hen they fall due.

Action for reconveyance is an ordinary civil action here matters relating to settlement of estatecannot be adjudicated.

Arbitration under a contract or submission is also a special proceedings.

!pecial proceedings under A-* la:

recognition and enforcement of an arbitration agreement or

for vacation, setting aside, correction or modification of an arbitral aard,

application ith a court for arbitration assistance and supervision.

SETTLEMENT OF ESTATE OF DECEASED PERSONS

RULE 7

VENUE AND PROCESSESSec. 1. Where estate of deceased person settled.- I! *+e &ece&e'* #s $' #'+$/#*$'* ! *+eP+#l#""#'es $* *+e *#3e ! +#s &e$*+0 ,+e*+e% $ c#*#4e' % $' $l#e'0 +#s ,#ll s+$ll /e "%)e&0 %le**e%s ! $&3#'#s*%$*#' (%$'*e&0 $'& +#s es*$*e se**le&0 #' *+e Cu%* ! F#%s* I's*$'ce #' *+e"%)#'ce #' ,+#c+ +e %es#&es $* *+e *#3e ! +#s &e$*+0 $'& #! +e #s $' #'+$/#*$'* ! $ !%e#('cu'*%0 *+e Cu%* ! F#%s* I's*$'ce ! $' "%)#'ce #' ,+#c+ +e +$& es*$*e. T+e cu%* !#%s*

N*s+e$)e'l '*es 555


2/69


Herrera Abridged

*$6#'( c('#4$'ce ! *+e se**le3e'* ! *+e es*$*e ! $ &ece&e'*0 s+$ll ee%c#se 8u%#sc*#' **+e eclus#' ! $ll *+e% cu%*s. T+e 8u%#sc*#' $ssu3e& / $ cu%*0 s !$% $s #* &e"e'&s '*+e "l$ce ! %es#&e'ce ! *+e &ece&e'*0 % ! *+e lc$*#' ! +#s es*$*e0 s+$ll '* /e c'*es*e' $ su#* % "%cee'(0 ece"* #' $' $""e$l !%3 *+$* cu%*0 #' *+e %#(#'$l c$se0 % ,+e' *+e,$'* ! 8u%#sc*#' $""e$%s ' *+e %ec%&.

!pecial proceeding for the settlement of estate of deceased: estate+ith ill

ntestate+ no ill

%robate of ill is mandatory and so it takes precedence over intestate.

f in the course of intestate, a ill has been found out, probate should replace the intestate even ifan administrator has already been appointed; intestate case should be consolidated ith thetestate proceeding and the judge assigned to the testate should continue hearing the to cases.

' shall e$ercise e$clusive jurisdiction over probate proceedings, testate or intestate here thevalue of the estate does not e$ceed %/00,000.

*ule prescribing the court here the decedents estate shall be settled at the place of residence ofthe deceased is not an element of jurisdiction over the subject matter but merely of venue.

*esidence+ actual or physical habitation of a person, not legal domicile, but must be more thantemporary.

overage of probate jurisdiction

!ettlement of estate

%robate of ills of deceased persons

Appointment and removal of administrators and e$ecutors

!elling and mortgaging or encumbering realty

1urisdiction of probate court is limited, special and e$clusive and does not e$tend to thedetermination of &uestions of onership that arise during the proceedings.

he court may pass upon the title for the purpose of determining hether the same should orshould not be included in the inventory but it is not conclusive and is still subject to final decision ina separate action.

he approval of the probate court of the conditional sale is not a conclusive determination of theintrinsic or e$trinsic validity of the conditional sale but a mere recognition of the right of an heir todispose of her rights and interest over her inheritance even before partition.

he purchaser of property under administration is forced intervenor in the intestate proceedingand should anser the amended petition for the annulment of the sale.

2rder of the probate court hich has the effect of depriving a lessee of part of the estate ihoutthe lease contract having been terminated or annulled in a separate action instituted for thatpurpose is null and void.

he rule that the court first taking cognizance of the settlement of the estate of the deceased, shalle$ercise jurisdiction to the e$clusion of all other court applies to both testate and intestateproceedings.

laims for title to, or right of possession of, personal or real property, made by the heirsthemselves, by title adverse to that of the deceased, or made by third persons, cannot beentertained by the probate court.

-etermination of the &uestions of title to the subject properties in the probate court is merelyprovisional, and petitioners are not barred from instituting the appropriate action.

"$ception: %robate court has jurisdiction to resolve the issue of onership hen the partiesinterested are all heirs of the ceased and they submitted the &uestion of title to the property,ithout prejudice to third persons.

An order to include properties in the inventory is merely provisional and interlocutory.

N*s+e$)e'l '*es 555


3/69


Herrera Abridged

A judicial declaration that a certain person is the only heir of the decedent is e$clusively ithin therange of the administration proceedings and cannot properly be made an independent action.

Application of attorneys fees may be made before and passed upon by the probate court in thesame proceedings here attorneys services ere rendered.

Sec. 2. Where estate settled upon dissolution of marriage. -9+e' *+e 3$%%#$(e #s ssl)e& /*+e &e$*+ ! *+e +us/$'& % ,#!e0 *+e c33u'#* "%"e%* s+$ll /e #')e'*%#e&0 $&3#'#s*e%e&0$'& l#:u#&$*e&0 $'& *+e &e/*s *+e%e! "$#&0 #' *+e *es*$*e % #'*es*$*e "%cee'(s ! *+e&ece$se& s"use. I! /*+ s"uses +$)e e&0 *+e c'8u($l "$%*'e%s+#" s+$ll /e l#:u#&$*e& #'*+e *es*$*e % #'*es*$*e "%cee'(s ! e#*+e%.

n the settlement proceedings of the estate of the deceased spouse, the entire conjugal partnershipproperty of the marriage and not just the one+half portion belonging to the deceased is underadministration.

Sec. . Process. - I' *+e ee%c#se ! "%/$*e 8u%#sc*#'0 Cu%* ! F#%s* I's*$'ce 3$ #ssue

,$%%$'*s $'& "%cesses 'ecess$% * c3"el *+e $**e'&$'ce ! ,#*'esses % * c$%% #'*e!!ec* *+e#% %&e%s $'& 8u&(3e'*s0 $'& $ll *+e% ",e%s (%$'*e& *+e3 / l$,. I! $ "e%s' &es'* "e%!%3 $' %&e% ! 8u&(3e'* %e'&e%e& / $ cu%* #' *+e ee%c#se ! #*s "%/$*e

8u%#sc*#'0 #* 3$ #ssue $ ,$%%$'* !% *+e $""%e+e's#' $'& #3"%#s'3e'* ! suc+ "e%s'u'*#l +e "e%!%3s suc+ %&e% % 8u&(3e'*0 % #s %ele$se&.

Sec. ;. Presumption of death. - F% "u%"ses ! se**le3e'* ! +#s es*$*e0 $ "e%s' s+$ll /e"%esu3e& &e$& #! $/se'* $'& u'+e$%& !%3 !% *+e "e%#&s !#e& #' *+e C#)#l C&e. Bu* #! suc+"e%s' "%)es * /e $l#)e0 +e s+$ll /e e'*#*le& * *+e /$l$'ce ! +#s es*$*e $!*e% "$3e'* ! $ll+#s &e/*s. T+e /$l$'ce 3$ /e %ec)e%e& / 3*#' #' *+e s$3e "%cee'(.

3o independent action for declaration of presumption of death.

! rule that here due to circumstances a person as already considered as dead ithout aitingfor the period to e$pire and be presumed dead.

RULE 7;

SUMMARY SETTLEMENT OF ESTATESSec. 1. Extrajudicial settlement by agreement between heirs. -I! *+e decedent left no will and nodebts and the heirs are all of age, or the minors are represented by their judicial or legal representativesduly authorized for the purpose, the parties may, without securing letters of administration, divide theestate among themselves as they see fit by means of a public instrument filed in the office of the registerof deeds0 $'& s+ul& *+e s$(%ee0 *+e 3$ & s #' $' %'$% $c*#' ! "$%*#*#'. I! *+e%e #s'l 'e +e#%0 +e 3$ $&8uc$*e * +#3sel! *+e e'*#%e es*$*e / 3e$'s ! $' $!!#&$)#* !#le& #'*+e !!#ce ! *+e %e(#s*e% ! &ee&s. T+e "$%*#es * $' e*%$8uc#$l se**le3e'*0 ,+e*+e% /"u/l#c #'s*%u3e'* % / s*#"ul$*#' #' $ "e''( $c*#' !% "$%*#*#'0 % *+e sle +e#% ,+$&8uc$*es *+e e'*#%e es*$*e * +#3sel! / 3e$'s ! $' $!!#&$)#* s+$ll !#le0 s#3ul*$'eusl ,#*+$'& $s $ c'*#' "%ece&e'* * *+e !#l#'( ! *+e "u/l#c #'s*%u3e'*0 % s*#"ul$*#' #' *+e $c*#'!% "$%*#*#'0 % ! *+e $!!#&$)#* #' *+e !!#ce ! *+e %e(#s*e% ! &ee&s0 a bond ,#*+ *+e saidregister of deeds, in an amount e&uivalent to the value of the personal property involved as certified tounder oath by the parties concerned and conditioned upon the payment of any just claim that may be filedunder !ection; ! *+#s %ule. t shall be presumed that the decedent left no debts if no creditorfiles a petition for letters of administration within two !"# years after the death of thedecedent.

T+e !$c* ! *+e e*%$8uc#$l se**le3e'* % $&3#'#s*%$*#' s+$ll /e "u/l#s+e& #' $ 'e,s"$"e% !(e'e%$l c#%cul$*#' #' *+e 3$''e% "%)#&e& #' *+e 'e* succee'( sec*#'< /u* ' e*%$8uc#$lse**le3e'* s+$ll /e /#''( u"' $' "e%s' ,+ +$s '* "$%*#c#"$*e& *+e%e#' % +$& ' '*#ce*+e%e!.

4hen all the heirs are of laful age and there are no debts due from the estate, they may agree inriting to partition the property ithout instituting the judicial administration or applying for theappointment of an administrator.

-ifferent modes of settlement of the estate of the deceased:

N*s+e$)e'l '*es 555


4/69


Herrera Abridged

"$trajudicial settlement of estate;

%artition

!ummary settlement of estates of small value

%robate of ill

%etition for letters administration in cases of intestacy.

%artition although oral is valid and binding.

he re&uirement that a partition be put in a public document and registered has for its purpose theprotection of creditors and at the same time the protection of the heirs themselves against tardyclaim; serves as a constructive notice.

he intrinsic validity of partition not e$ecuted ith the prescribed formalities does not come intoplay hen there are no creditors or the rights of the creditors are not affected.

%artition among heirs or renunciation of an inheritance by some of them is not e$actly aconveyance of real property for the reason that it does not involve transfer of property from one tothe other, but rather a confirmation or ratification of title or right of property by the heir renouncingin favor or another heir accepting and receiving the inheritance.

5eirs cannot divest court of its already ac&uired jurisdiction by the fact of dividing the distributinge$trajudicially the estate of the deceased among themselves.

f the e$trajudicial partition made by the heirs is submitted to the court and approved afterverification that it does not prejudice the rights of third parties, the testate proceedings pendingould have been legally terminated.

An e$trajudicial partition of the estate of a deceased by the heirs become a judicial partition afterthe approval by the court hich had previously ac&uired jurisdiction of the estate, but as thetestate proceedings is terminated in such case ithout the necessary publication of notice tocreditors and other persons interested in the estate re&uired in a regular judicial administration, theeffects of such judicial partition ould be the same as if it had been effected e$trajudicially ithoutthe intervention of the court and is still subject to claims against distributes.

Sec. 2. Summary settlement of estates of small value. -9+e'e)e% *+e gross value! *+e es*$*e! $ &ece$se& "e%s'0 hether he died testate or intestate, does not e$ceed ten thousand pesos0 $'&*+$* !$c* #s 3$&e * $""e$% * *+e Cu%* ! F#%s* I's*$'ce +$)#'( 8u%#sc*#' ! *+e es*$*e /*+e "e*#*#' ! $' #'*e%es*e& "e%s' $'& u"' +e$%#'(0 ,+#c+ s+$ll /e +el& not less than (#)month nor more than three (/) months from the date of the last publication of a notice hich shall bepublished once a eek for three (/) consecutive eeks in a nespaper of general circulation in theprovince,$'& $!*e% suc+ *+e% '*#ce * #'*e%es*e& "e%s's $s *+e cu%* 3$ %ec* , the courtmay proceed summarily, without the appointment of an executor or administrator, and without delay, togrant, 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 ofthe estate as the court shall then find to be due; and such persons, in their own right, if they are of lawfulage and legal capacity, % / *+e#% (u$%$'s % *%us*ees le($ll $""#'*e& $'& :u$l#!#e&0 #!*+e%,#se0 s+$ll *+e%eu"' be entitled to receive and enter into the possession of the portions of theestate so aarded to them respectively.T+e cu%* s+$ll 3$6e suc+ %&e% $s 3$ /e 8us* %es"ec*#'(*+e cs*s ! *+e "%cee'(s0 $'& $ll %&e%s $'& 8u&(3e'*s 3$&e % %e'&e%e& #' *+e cu%se*+e%e! shall be recorded in the office of the clerk, and the order of partition or aard, if it involves real

estate, shall be recorded in the proper register6s office.

' shall have the probate jurisdiction here the value of the estate does not e$ceed %/007 or %8007 in''.

Sec. . $ond to be filed by distributees. -T+e cu%*0 before allowing a partition#' $cc%&$'ce ,#*+*+e "%)#s#'s ! *+e "%ece'( sec*#'0 3$ re&uire the distributees, if property other than real is tobe distributed, to file a bond in an amount to be fi$ed by court, conditioned for the payment of any justclaim,+#c+ 3$ /e !#le& u'&e% *+e 'e* succee'( sec*#'.

Sec. ;. %iability of distributees and estate. - I! #* s+$ll $""e$% $* any time ithin to (9) years afterthe settlement and distribution of an estate#' $cc%&$'ce ,#*+ *+e "%)#s#'s ! e#*+e% ! *+e !#%s*

*, sec*#'s ! *+#s %ule0 that an heir or other person has been unduly deprived of his lafulparticipation in the estate, such heir or such other personmay compel the settlement of the estate in thecourts #' *+e 3$''e% +e%e#'$!*e% "%)#&e& !% *+e "u%"se ! s$*#s!#'( suc+ l$,!ul"$%*#c#"$*#'. A'& #! ithin the same time of to (9) years, it shall appear that there are debtsoutstanding against the estate hich have not been paid, or that an heir or other person has been undulydeprived of his laful participation payable in money, the court having jurisdiction of the estate may, byorder for that purpose, after hearing, se**le *+e $3u'* ! suc+ &e/*s % l$,!ul "$%*#c#"$*#' andorder how much and in what manner each distributee shall contribute in the payment thereof&an& may issue e$ecution, if circumstances re&uire, against the bond provided in the preceding section oragainst the real estate /el'(#'( * *+e &ece$se&0 % /*+. Suc+ /'& $'& suc+ %e$l es*$*e s+$ll

N*s+e$)e'l '*es 555


5/69


Herrera Abridged

%e3$#' c+$%(e& ,#*+ $ l#$/#l#* * c%e*%s0 +e#%s0 % *+e% "e%s's !% *+e !ull period of to (9)years after such distribution, notithstanding any transfers of real estate that may have been made.

he provisions barring distributes or heirs from objecting to an e$tra+judicial partition after thee$piration of to years from such e$trajudicial partition is applicable only to:

%ersons ho have participated or taken part or had notice of the e$trajudicial partition, and

4hen all the persons or heirs of the decedent have taken part in the e$trajudicial settlement or arerepresented by themselves through guardians.

!ection 8 is only a bar against the parties ho had taken part in the e$trajudicial proceedings, butnot against third persons not parties thereto.

An action for reconveyance of real property on the ground of fraud must be filed ithin 8 yearsfrom the discovery of fraud. !uch discovery is deemed to have taken place from the issuance of thecertificates of title.

An action for reconveyance based on a implied or constructive trust prescribes in ten years fromthe date of the registration of the deed or the issuance of the title.

An action for rescission is also the proper action in case of an alleged preterition of a compulsory

heir by reason of alleged bad faith or fraud of the other persons interested. 4hen the plaintiff is in possession of the land to be reconveyed, prescription cannot be invoked in

an action for reconveyance.

he court permitted the filing of an action for reconveyance despite the lapse of ten years anddeclared that said action, hen based on fraud, is imprescriptible as long as the land has notpassed to an innocent purchaser for value.

his is for the reason that registration proceedings should not be used as a shield for fraudenriching a person at the e$pense of the other.

Sec. =. Period for claim of minor or incapacitated person. -I! ' *+e date of the e$piration of theperiod of to (9) years prescribed in the preceding section the person authorized to file a claim #s $ minoror mentally incapacitated& or is in prison or outside the Philippines, he may present his claim

ithin one (#) year after such disability is removed.

RULE 7=

PRODUCTION OF 9ILL. When allowed money paid as costs. - T+e $3u'* "$#& / $' eecu*% % $&3#'#s*%$*%!% cs*s $,$%&e& $($#'s* +#3 s+$ll /e $ll,e& #' +#s $&3#'#s*%$*#' $ccu'*0 unless it appearsthat the action or proceeding in hich the costs are ta$ed as prosecuted or resisted ithout just cause,and not in good faith.

N*s+e$)e'l '*es 555


18/69


Herrera Abridged

Sec. 7. What expenses and fees allowed executor or administrator. - N* * c+$%(e !% se%)#ces$s $**%'e. C3"e's$*#' "%)#&e& / ,#ll c'*%ls u'less %e'u'ce&. An e$ecutor oradministrator shall be alloed the necessary e$penses in the care, management, and settlement of theestate, and for his services, !u% "ess "e% &$ !% *+e *#3e $c*u$ll $'& 'ecess$%#l e3"le&, ora commission upon the value of so much of the estate as comes into his possessionand is finally disposedof by him in the payment of debts, expenses, legacies, or distributive shares, or by delivery to heirs or

devisees,! *, "e% ce'*u3 ! *+e !#%s* !#)e *+us$'& "ess ! suc+ )$lue0 'e "e% ce'*u3 !s 3uc+ ! suc+ )$lue $s ecee&s !#)e *+us$'& "ess $'& &es '* ecee& *+#%* *+us$'&"ess0 'e-+$l! "e% ce'*u3 ! s 3uc+ ! suc+ )$lue $s ecee&s *+#%* *+us$'& "ess $'&&es '* ecee& 'e +u'&%e& *+us$'& "ess $'& 'e-:u$%*e% "e% ce'*u3 ! s 3uc+ ! suc+)$lue $s ecee& 'e +u'&%e& *+us$'& "ess. Bu* #' $' s"ec#$l c$se0 ,+e%e *+e es*$*e #sl$%(e0 $'& *+e se**le3e'* +$s /ee' $**e'&e& ,#*+ (%e$* !!#cul*0 $'& +$s %e:u#%e& $ +#(+&e(%ee % c$"$c#* ' *+e "$%* ! *+e eecu*% % $&3#'#s*%$*%0 $ (%e$*e% su3 3$ /e$ll,e&. I! /8ec*#' * *+e !ees $ll,e& /e *$6e'0 *+e $ll,$'ce 3$ /e %e-e$3#'e& '$""e$l.

f there are to or more e$ecutors or administrators, the compensation shall be apportioned among themby the court according to the services actually rendered by them respectively.

9+e' *+e eecu*% % $&3#'#s*%$*% #s $' $**%'e0 +e s+$ll '* c+$%(e $($#'s* *+e es*$*e $'"%!ess#'$l !ees !% le($l se%)#ces %e'&e%e& / +#3.

9+e' *+e &ece$se& / ,#ll 3$6es s3e *+e% "%)#s#' !% *+e c3"e's$*#' ! +#s eecu*%0that provision shall be a full satisfaction for his services unless by a ritten instrument filed in the court herenounces all claim to the compensation provided by the ill.

ompensation of an administrator:

a. 8>day for the time actually and necessarily employed, or;b. A commission upon the value of so much of the estate as comes to his possession and as

disposed of by him according to the schedule provided.

An e$ecutor>administrator is alloed the necessary e$penses in the care, management, andsettlement of the estate.

5e is also entitled to possess and manage the decedents real and personal estate as long as it isnecessary for the payment of the debts and the e$penses of administration.

3ecessary e$penses of administration are such e$penses as are:

entailed for the preservation and productivity of the estate and

for its management for purpose of li&uidation, payment of debts,

and distribution of the residue among persons entitled

for renovation and improvement of family residence

to preserve the family home and maintain familys social standing.

3ot necessary e$penses:

Anniversary of the death of the deceased;

hose incurred by a presumptive heir for her appearance and that of her itness at the trial tooppose the probate of the alleged ill;

or the settlement of the &uestion as to ho are entitled to the estate left by the deceased;

ncurred by the e$ecutor or administrator to procure bond

%ersonal e$penses of the heir of the family residence

"$penses for stenographic notes, une$plained representation

An administrator or e$ecutor may be alloed fees for the necessary e$penses but he may notrecover attorneys fees from the estate.

5is compensation is fi$ed by the rule but such a compensation is in the nature of e$ecutors oradministrators commissions and never as attorneys fees.

A layer of an administrator or e$ecutor may not charge the estate for his fees, but rather hisclient.

Attorneys fees may be alloed as e$penses of administration.

N*s+e$)e'l '*es 555


19/69


Herrera Abridged

he estate hoever is not directly liable for his fees, the liability for the payment resting primarilyon the e$ecutor or administrator; if the administrator had paid the fees, he ould be entitled toreimbursement from the estate.

%rocedure:

ounsel should re&uest the administrator to make payment and file an action against him in hispersonal capacity and not as an administrator should he fail to pay.

ounsel may file a petition in the testate or intestate proceeding asking that the court allo hisclaim and direct the administrator to pay it as an e$pense of administration.

4here greater sum may be aarded> entitlement to additional compensation:

he estate must be large;

he settlement as e$traordinarily difficult;

5igh degree of capacity as demonstrated by the administrator.

Although being a layer by itself is not a factor in the assessment of an administrators fee, itshould be otherise hen the administrator as able to stop hat appeared to be an improvidentdisbursement of a substantial amount ithout having to employ legal help at an additionale$pense.

Sec. @. When executor or administrator to render account. - E)e% eecu*% % $&3#'#s*%$*%s+$ll %e'&e% an account of his administration ithin one (#) year from the time of receiving letterstestamentary or of administration, u'less *+e cu%* *+e%,#se %ec*s /ec$use ! e*e's#'s !*#3e !% "%ese'*#'( cl$#3s $($#'s*0 % "$#'( *+e &e/*s !0 *+e es*$*e0 % !% s"s#'( ! *+ees*$*e< $'& +e s+$ll %e'&e% suc+ !u%*+e% $ccu'*s $s *+e cu%* 3$ %e:u#%e u'*#l *+e es*$*e #s,+ll se**le&.

his mandatory, unless otherise directed by the court.

he fact that all the heirs of the estate have entered into an e$trajudicial settlement in order to putan end to their differences cannot in any ay be interpreted as aiver of the objections of the heirsto the accounts submitted by the administrator.

he duty of an administrator to render an account is not a mere incident of an administrationproceeding hich can be aived or disregarded hen the same is terminated, but that it is a dutythat has to be performed and duly acted upon by the court before the administration is finallyordered closed and terminated, to the end that no part of the decedents estate be leftunaccounted for.

t is ruled that an e$ecutor or administrator ho receives assets of the estate after he has filed anaccount should file a supplementary account thereof ith respect to the matters occurring after thesettlement of final account.

he fact that the final accounts had been approved does not divest the court of jurisdiction tore&uire supplemental accounting for, aside from initial accounting.

Sec. . Examination on oath with respect to account. - T+e court may e$amine the e$ecutor oradministrator upon oath ith respect to every matter relating to any account rendered by him,$'& s+$lls e$3#'e +#3 $s * *+e c%%ec*'ess ! +#s $ccu'* /e!%e *+e s$3e #s $ll,e&0 ece"* ,+e'' /8ec*#' #s 3$&e * *+e $ll,$'ce ! *+e $ccu'* $'& #*s c%%ec*'ess #s s$*#s!$c*%#les*$/l#s+e& / c3"e*e'* "%!. T+e +e#%s0 le($*ees0 s*%#/u*ees0 $'& c%e*%s ! *+e es*$*es+$ll +$)e *+e s$3e "%#)#le(e $s *+e eecu*% % $&3#'#s*%$*% ! /e#'( e$3#'e& ' $*+ !$' 3$**e% %el$*#'( * $' $&3#'#s*%$*#'.

At the hearing, the administrator ill take the itness stand, testify under oath on his accounts, identifythe receipts and documents evidencing his disbursements hich are offered as e$hibits; he may beinterrogated by the court, and crossed by the opposing counsel.

Sec. 1. Account to be settled on notice. - =efore the account of an e$ecutor or administrator isalloed, notice shall be given to persons interested of time and place of e$amining and alloing the same administrator is unilling or refuses to bring suit;

4hen the administrator is alleged to have participated in the act complained of and he is made aparty defendant;

2r hen the administrator is a party to the fraud.

N*s+e$)e'l '*es 555


25/69


Herrera Abridged

Sec. ;. Executor or administrator may compound with debtor. - 9#*+ *+e $""%)$l ! *+e cu%*0an executor or administrator may compound with the debtor of the deceased for a debt due, and may givea discharge of such debt on receiving a just dividend of the estate of the debtor

Sec. =. /ortgage due estate may be foreclosed. -! mortgage belonging to the estate of a deceasedperson, as mortgagee or assignee of the right of a mortgagee, may be foreclosed by the executor oradministrator.

here is no need of a special authority from the court for the administrator or e$ecutor to bring an actionfor foreclosure on behalf of the estate.

Sec. >. Proceedings when property concealed& embe55led& or fraudulently conveyed. - I! $'eecu*% % $&3#'#s*%$*%0 +e#%0 le($*ee0 c%e*%0 % *+e% #')#&u$l #'*e%es*e& #' *+e es*$*e! *+e &ece$se&0 complains to the court having jurisdiction of the estate that a person is suspected ofhaving concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased, orthat 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 thedeceased to real or personal estate, or the last will and testament of the deceased0 *+e cu%* 3$ c#*esuc+ sus"ec*e& "e%s' * $""e$% /e!%e #* $'& 3$ e$3#'e +#3 ' $*+ ' *+e 3$**e% ! suc+c3"l$#'*< $'& #! *+e "e%s' s c#*e& %e!uses * $""e$%0 % * $'s,e% ' suc+ e$3#'$*#' %suc+ #'*e%%($*%#es $s $%e "u* * +#30 *+e cu%* 3$ "u'#s+ +#3 !% c'*e3"*0 $'& maycommit him to prison until he submits to the order of the court. 1he interrogatories put to anysuch person& and his answers thereto& shall be in writing and shall be filed in the cler+6s office.

hird persons to hom the decedents assets have been fraudulently conveyed may be cited toappear in court and be e$amined under oath as to ho they cam into the possession of thedecedents assets.

n such proceeding, the court has no authority to decide hether the property, real or personal,belongs to the deceased or the persons e$amined.

f after e$amination, there is good reason for believing that the person so e$amined has property inhis possession belonging to the estate, it is the duty of the administrator, by ordinary action, torecover the same.

!uch proceedings are intended merely to investigate and take testimony for use in an independentaction.

Sec. 7. Person entrusted with estate compelled to render account. -he court, on complaint of ane$ecutor or administrator, may cite a person entrusted by an e$ecutor or administrator ith any part ofthe estate of the deceased to appear before it, and may re&uire such person to render a full account

0 '$*+0 ! *+e 3'e0 (&s0 c+$**els0 /'&s0 $ccu'*s0 % other papers belonging to such estate ascame to his possession in trust for such executor or administrator, and of his proceedings thereon; and ifthe person so cited refuses to appear to render such account0 *+e cu%* 3$ "u'#s+ +#3 !% c'*e3"*

$s +$)#'( s/ee& $ l$,!ul %&e% ! *+e cu%*.

All persons ho come into possession of a property belonging to any decedent are liable therefor andaccountable to the laful administrator hen the estate is finally dran into judicial administration.

Sec. @. Embe55lement before letters issued. - If a person, before the granting of letterstestamentary 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 e$ecutor or administrator of the estate !% &u/le *+e )$lue ! *+e "%"e%*sl&0 e3/e44le&0 % $l#e'$*e&0 * /e %ec)e%e& !% *+e /e'e!#* ! suc+ es*$*e.

his contemplates of an embezzlement or alienation hich causes the estate to lose the propertyconverted by the rongdoer.

-ouble value rule does not apply to the manager of a company ho carries on the business afterthe death of his principal and applies the proceeds of sale to the payment of debts contracted inrunning the business.

Sec. . Property fraudulently conveyed by deceased may be recovered' When executor oradministrator must bring action. + 4hen there is deficiency of assets in the hands of an e$ecutor oradministrator for the payment of debts and e$penses of administration0 $'& the deceased in his lifetimehad conveyed real or personal property, or a right or interest therein, or a debt or credit, with intent todefraud his creditors or to avoid any right, debt, or duty; or had so conveyed such property, right, interest,

N*s+e$)e'l '*es 555


26/69


Herrera Abridged

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 lifetime0 *+e

eecu*% % $&3#'#s*%$*% 3$ c33e'ce $'& "%secu*e * !#'$l 8u&(3e'* $' $c*#' !% *+e%ec)e% ! suc+ "%"e%*0 %#(+*0 #'*e%es*0 &e/*0 % c%e* !% *+e /e'e!#* ! *+e c%e*%s< /u*+e s+$ll '* /e /u'& * c33e'ce *+e $c*#' u'less ' $""l#c$*#' ! *+e c%e*%s ! *+e&ece$se&0 '% u'less *+e c%e*%s 3$6#'( *+e $""l#c$*#' "$ suc+ "$%* ! *+e cs*s $'&

e"e'ses0 % (#)e secu%#* *+e%e!% * *+e eecu*% % $&3#'#s*%$*%0 $s *+e cu%* &ee3se:u#*$/le.

Sec. 1. When creditor may bring action' %ien for costs. - 9+e' *+e%e #s suc+ $ &e!#c#e'c !$sse*s0 $'& *+e &ece$se& #' +#s l#!e*#3e +$& 3$&e % $**e3"*e& suc+ $ c')e$'ce0 $s #ss*$*e& #' *+e l$s* "%ece'( sec*#'0 $'& *+e eecu*% % $&3#'#s*%$*% +$s '* c33e'ce& *+e$c*#' *+e%e#' "%)#&e& !%0 $' c%e*% ! *+e es*$*e 3$0 ,#*+ *+e "e%3#ss#' ! *+e cu%*0c33e'ce $'& "%secu*e * !#'$l 8u&(3e'*0 #' *+e '$3e ! *+e eecu*% % $&3#'#s*%$*%0 $l#6e $c*#' !% *+e %ec)e% ! *+e su/8ec* ! *+e c')e$'ce % $**e3"*e& c')e$'ce !% *+e/e'e!#* ! *+e c%e*%s. Bu* *+e $c*#' s+$ll '* /e c33e'ce& u'*#l *+e c%e*%s +$s !#le& #'$ cu%* $ /'& eecu*e& * *+e eecu*% % $&3#'#s*%$*%0 #' $' $3u'* $""%)e& / *+e

8u&(e0 c'*#'e& * #'&e3'#! *+e eecu*% % $&3#'#s*%$*% $($#'s* *+e cs*s $'& e"e'ses#'cu%%e& / %e$s' ! suc+ $c*#'. Suc+ c%e*% s+$ll +$)e $ l#e' u"' $' 8u&(3e'*

%ec)e%e& / +#3 #' *+e $c*#' !% suc+ cs*s $'& *+e% e"e'ses #'cu%%e& *+e%e#' $s *+e cu%*&ee3s e:u#*$/le. 9+e%e *+e c')e$'ce % $**e3"*e& c')e$'ce +$s /ee' 3$&e / *+e&ece$se& #' +#s l#!e*#3e #' !$)% ! *+e eecu*% % $&3#'#s*%$*%0 *+e $c*#' ,+#c+ $ c%e*%3$ /%#'( s+$ll /e #' *+e '$3e ! $ll *+e c%e*%s0 $'& "e%3#ss#' ! *+e cu%* $'& !#l#'( !/'& $s $/)e "%esc%#/e&0 $%e '* 'ecess$%.

*e&uisites for creditor to file action to recover property fraudulently conveyed:

a. here is a deficiency of assets in the hands of an e$ecutor or administrator for the payment ofdebts and e$penses of administration;

b. he deceased in his lifetime had made or attempted to make a fraudulent conveyance of his real or

personal property or a right or interest therein, or a debt or credit, ith intent to defraud hiscreditors or to avoid any right, debt or duty, or had so conveyed such property, right, debt, or creditthat by la the conveyance ould be void as against his creditors;

c. he subject of the attempted conveyance ould be liable to attachment by any of them in hislifetime;

d. he e$ecutor or administrator has shon to have no desire to file the action or failed to institute thesame ithin a reasonable time;

e. he leave is granted by the court to the creditor to file the action;f. A bond is filed by the creditor as prescribedg. he action by the creditor is in the name of the e$ecutor or administrator.

Administratri$ ho claims to be a creditor cannot ask for preliminary attachment in an action torecover since this is considered a money claim that should be ventilated in the estate case.

RULE @@

PAYMENT OF TE DEBTS OF TE ESTATESec. 1. 3ebts paid in full if estate sufficient. - I!0 $!*e% +e$%#'( $ll *+e 3'e cl$#3s $($#'s* *+ees*$*e0 $'& $!*e% $sce%*$#'#'( *+e $3u'* ! suc+ cl$#3s0 #* $""e$%s *+$* *+e%e $%e su!!#c#e'*$sse*s * "$ &e/*s0 *+e eecu*% % $&3#'#s*%$*% s+$ll "$ *+e s$3e ,#*+#' *+e *#3e l#3#*e&!% *+$* "u%"se.

%ayment of debts and e$penses of administration:

4rit of e$ecution is not proper;

ourt should order the sale of personal estate or the sale or mortgage of real property of thedeceased and all debts and e$penses of the administration should be paid out of the proceeds ofsuch sale or mortgage upon motion of the administrator and ith ritten notice to all the heirs,legatees and devisees residing in the %hilippines.

%robate court may hold in abeyance intestate proceedings pending determination of a civil caseagainst the administratri$.

N*s+e$)e'l '*es 555


27/69


Herrera Abridged

Sec. 2. Part of estate from which debt paid when provision made by will. - I! *+e *es*$*%3$6es "%)#s#' / +#s ,#ll0 % &es#('$*es *+e es*$*e * /e $""%"%#$*e& !% *+e "$3e'* !&e/*s0 *+e e"e'ses ! $&3#'#s*%$*#'0 % *+e !$3#l e"e'ses0 *+e s+$ll /e "$#& $cc%'( **+e "%)#s#'s ! *+e ill; but if the provisions made by the ill or the estate appropriated, is notsufficient for that purpose, such part of the estate of the testator, real or personal, as is not disposed of byill, if any, shall be appropriated for that purpose.

Although the testator has acknoledged a specific debts in his ill, the creditor is not relievedthereby from the duty of filing his claim in the testate or intestate proceeding, otherise that claimill be barred.

Sec. . Personalty first chargeable for debts& then realty. - he personal estate of the deceased notdisposed of by will shall be first chargeable with the payment of debts and expenses; $'& if saidpersonal 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 necessar, may be sold, mortgaged, or otherise encumbered for

that purpose by the e$ecutor or administrator, after obtaining the authority of the court therefor.A'&e!#c#e'c s+$ll /e 3e* / c'*%#/u*#'s #' $cc%&$'ce ,#*+ *+e "%)#s#'s ! sec*#' > ! *+#s

%ule.

he realty of the decedent is liable for debts and e$penses in the folloing:

4hen the personal estate of the decedent is not sufficient for that purpose;

4here the sale of such personality ould be to the detriment of the participants of the estate;

5ere, only so much of the realty as is necessary may be sold, mortgage, or otherise encumberedfor the purpose of payment by the e$ecutor or administrator.

Sec. ;. Estate to be retained to meet contingent claims. - I! *+e cu%* #s s$*#s!#e& *+$* $c'*#'(e'* cl$#3 &ul !#le& #s )$l#&0 it may order the executor or administrator to retain in

his hands sufficient estate to pay such contingent claim when the same becomes absolute0%0 #! *+e es*$*e #s #'sl)e'*0 su!!#c#e'* * "$ $ "%*#' e:u$l * *+e )#&e'& ! *+e *+e%c%e*%s.

Sec. =. )ow contingent claim becoming absolute in two years allowed and paid' Action againstdistributees later. 'f such contingent claim becomes absolute and is presented to the court, or to theexecutor or administrator, within two (*) years from the time limited for other creditors to present theirclaims, it may be allowed by the court if not disputed by the executor or administrator,$'&0 #! s"u*e&0#* 3$ /e "%)e& $'& $ll,e& % s$ll,e& / *+e cu%* $s *+e !$c*s 3$ ,$%%$'*. I! *+ec'*#'(e'* cl$#3 #s $ll,e&0 *+e c%e*% s+$ll %ece#)e "$3e'* * *+e s$3e e*e'* $s *+e *+e%c%e*%s #! *+e es*$*e %e*$#'e& / *+e eecu*% % $&3#'#s*%$*% #s su!!#c#e'*. Bu* #! *+e cl$#3 #s'* s "%ese'*e&0 $!*e% +$)#'( /ec3e $/slu*e0 ,#*+#' s$#& *, ?2 e$%s0 $'& $ll,e&0 *+e$sse*s %e*$#'e& #' *+e +$'&s ! *+e eecu*% % $&3#'#s*%$*%0 '* e+$us*e& #' *+e "$3e'* !

cl$#3s0 s+$ll /e s*%#/u*e& / *+e %&e% ! *+e cu%* * *+e "e%s's e'*#*le& * *+e s$3e< /u**+e $sse*s s s*%#/u*e& 3$ s*#ll /e $""l#e& * *+e "$3e'* ! *+e cl$#3 ,+e' es*$/l#s+e&0$'& *+e c%e*% 3$ 3$#'*$#' $' $c*#' $($#'s* *+e s*%#/u*ees * %ec)e% *+e &e/*0 $'& suc+s*%#/u*ees $'& *+e#% es*$*es s+$ll /e l#$/le !% *+e &e/* #' "%"%*#' * *+e es*$*e *+e +$)e%es"ec*#)el %ece#)e& !%3 *+e "%"e%* ! *+e &ece$se&.

f the contingent claim matures after e$piration of the to years, the creditor may sue thedistributes, ho are liable in proportion to the shares in the estate respectively received by them.

he contingent claims must first have been established and alloed in the probate court before thecreditors can file an action directly against the distributees.

Sec. >. (ourt to fix contributive shares where devisees& legatees& or heirs have been inpossession. - 9+e%e &e)#sees0 le($*ees0 % +e#%s +$)e e'*e%e& #'* "ssess#' ! "%*#'s !*+e es*$*e /e!%e *+e &e/*s $'& e"e'ses +$)e /ee' se**le& $'& "$#&0 $'& +$)e /ec3e l#$/le* c'*%#/u*e !% *+e "$3e'* ! suc+ &e/*s $'& e"e'ses0 *+e cu%* +$)#'( 8u%#sc*#' ! *+ees*$*e 3$0 / %&e% !% *+$* "u%"se0 $!*e% +e$%#'(0 se**le *+e $3u'* ! *+e#% se)e%$ll#$/#l#*#es0 $'& %&e% +, 3uc+ $'& #' ,+$* 3$''e% e$c+ "e%s' s+$ll c'*%#/u*e0 $'& 3$#ssue eecu*#' $s c#%cu3s*$'ces %e:u#%e.

N*s+e$)e'l '*es 555


28/69


Herrera Abridged

"ven after the partition of an estate, the heirs and distributees are liable individually for thepayment of all laful outstanding claims against the estate in proportion to the amount or value ofthe property they have respectively received from the estate.

A legacy is not a debt of the estate and indeed, legatees are among those against hom e$ecutionis authorized to be issued.

Sec. 7. 0rder of payment if estate insolvent. - I! *+e $sse*s ,+#c+ c$' /e $""%"%#$*e& !% *+e"$3e'* ! &e/*s $%e '* su!!#c#e'* !% *+$* "u%"se0 *+e eecu*% % $&3#'#s*%$*% s+$ll "$*+e &e/*s $($#'s* *+e es*$*e0 /se%)#'( *+e "%)#s#'s ! A%*#cles 1= $'& 22 * 22=1 ! *+eC#)#l C&e.

*efer to 3.

Sec. @.3ividends to be paid in proportion to claims. -I! *+e%e $%e ' $sse*s su!!#c#e'* * "$*+e c%e*s ! $' 'e cl$ss ! c%e*%s $!*e% "$#'( *+e c%e*s e'*#*le& * "%e!e%e'ce )e% #*0e$c+ c%e*% ,#*+#' suc+ cl$ss s+$ll /e "$#& $ )#&e'& #' "%"%*#' * +#s cl$#3. N c%e*%! $' 'e cl$ss s+$ll %ece#)e $' "$3e'* u'*#l *+se ! *+e "%ece'( cl$ss $%e "$#&.

Sec. . Estate of insolvent nonresident& how disposed of. - I' c$se $&3#'#s*%$*#' #s *$6e' #'*+e P+#l#""#'es ! *+e es*$*e ! $ "e%s' ,+ ,$s $* *+e *#3e ! +#s &e$*+ $' #'+$/#*$'* !$'*+e% cu'*%0 $'& ,+ e& #'sl)e'*0 his estate found in the +hilippines shall, as far as

practicable, be so disposed of that his creditors here and elsewhere may receive each an e%ual share, inproportion to their respective credits.

Sec. 1. When and how claim proved outside the Philippines against insolvent resident6sestate paid. - I! #* appears to the court having jurisdiction that claims have been duly proven in anothercountry against the estate of an insolvent ho as at the time of his death an inhabitant of the%hilippines

0 $'& *+$* the executor or administrator in the +hilippines had knowledge of the presentationof such claims in such country and an opportunity to contest their allowance, *+e cu%* s+$ll %ece#)e $ce%*#!#e& l#s* ! suc+ cl$#3s0 ,+e' "e%!ec*e& #' suc+ cu'*%0 $'& $&& *+e s$3e * *+e l#s* !cl$#3s "%)e& $($#'s* *+e &ece$se& "e%s' #' *+e P+#l#""#'es s *+$* $ 8us* s*%#/u*#' ! *+e

,+le es*$*e 3$ /e 3$&e e:u$ll $3'( $ll #*s c%e*%s $cc%'( * *+e#% %es"ec*#)e cl$#3s. Successor of dead executor or administrator may have time extended on notice withincertain period. - 4hen an e$ecutor or administrator dies, and a ne administrator of the same estate isappointed

0 *+e cu%* 3$ e*e'& *+e *#3e $ll,e& !% *+e "$3e'* ! *+e &e/*s % le($c#es

/e'& *+e *#3e $ll,e& * *+e %#(#'$l eecu*% % $&3#'#s*%$*%

0 not e$ceeding si$ () months ata time and not e$ceeding si$ () months beyond the time hich the court might have alloed to suchoriginal e$ecutor or administrator; andnotice shall be given of the time and place for hearingsuch application, as required in the last preceding section.

!peedy settlement of the estate as ruling spirit of probate la.

"$ecution may issue only here the devisees, legatees, or heirs have entered into possession oftheir respective portions in the estate prior to settlement and payment of the debts and e$pensesof administration and it is later ascertained that there are such debts and e$penses to be paid, insuch case the court having jurisdiction of the estate may, by order for that purpose, after hearing,settle the amount of their several liabilities, and order ho much and in hat manner each personshall contribute, and may issue if circumstances re&uire.

RULE @

SALES0 MORTGAGES0 AND OTER ENCUMBRANCES OF PROPERTY OF DECEDENTSec. 1. 0rder of sale of personalty. - U"' *+e $""l#c$*#' ! *+e eecu*% % $&3#'#s*%$*%0$'& ' ,%#**e' '*#ce * *+e +e#%s $'& *+e% "e%s's #'*e%es*e&0 the court may order the hole ora part of the personal estate to be sold, if it appears necessary for the purpose of paying debts, e$pensesof administration, or legacies, or for the preservation of the property.

t is only the court that has poer to authorize the sale.

A poer of attorney e$ecuted by the heirs in favor of the administrator gives no legal effect to thesale made ithout authority of the court.

Sec. 2. When court may authori5e sale& mortgage& or other encumbrance of realty to pay debtsand legacies through personalty not exhausted. - 4hen the personal estate of the deceased is notsufficient to pay the debts, e$penses of administration, and legacies,% where the sale of such personalestate may injure the business or other interests of those interested in the estate0 $'&where a testatorhas not otherwise made sufficient provision for the payment of such debts, expenses, and

legacies0 *+e cu%*0 ' *+e $""l#c$*#' ! *+e eecu*% % $&3#'#s*%$*% $'& ' ,%#**e' '*#ce

* *+e +e#%s0 &e)#sees0 $'& le($*ees %es#'( #' *+e P+#l#""#'es0 may authorize the e$ecutor oradministrator to sell, mortgage, or otherise encumber so much as may be necessary of the real estate, inlieu of personal estate, for the purpose of paying such debts, e$penses, and legacies, if it clearly appearsthat such sale, mortgage, or encumbrances ould be beneficial to the persons interested< $'& #! $ "$%*

c$''* /e sl&0 3%*($(e&0 % *+e%,#se e'cu3/e%e& ,#*+u* #'8u% * *+se #'*e%es*e& #' *+e%e3$#'&e%0 *+e $u*+%#* 3$ /e !% *+e s$le0 3%*($(e0 % *+e% e'cu3/%$'ce ! *+e ,+le !suc+ %e$l es*$*e0 % s 3uc+ *+e%e! $s #s 'ecess$% % /e'e!#c#$l u'&e% *+e c#%cu3s*$'ces.

Sec. . Persons interested may prevent such sale& etc.& by giving bond. -o such authority to sell,mortgage, or otherwise encumber real or personal estate shall be granted#! $' "e%s' #'*e%es*e& #'*+e es*$*e (#)es $ /'&0 #' $ su3 * /e !#e& / *+e cu%*0 c'*#'e& * "$ *+e &e/*s0e"e'ses ! $&3#'#s*%$*#'0 $'& le($c#es ,#*+#' suc+ *#3e $s *+e cu%* %ec*s< $'& suc+ /'&s+$ll /e !% *+e secu%#* ! *+e c%e*%s0 $s ,ell $s ! *+e eecu*% % $&3#'#s*%$*%0 $'& 3$/e "%secu*e& !% *+e /e'e!#* ! e#*+e%.

Sec. ;. When court may authori5e sale of estate as beneficial to interested persons' 3isposalof proceeds. -$hen it appears that the sale of the whole or a part of the real or personal estate, will bebeneficial to the heirs, devisees, legatees, and other interested persons0 *+e cu%* 3$0 u"'$""l#c$*#' ! *+e eecu*% % $&3#'#s*%$*% $'& ' ,%#**e' '*#ce * *+e +e#%s0 &e)#sees $'&le($*ees ,+ $%e #'*e%es*e& #' *+e es*$*e * /e sl&0 authorize the e$ecutor or administrator to sellthe hole or a part of said estate, although not necessary to pay debts, legacies, or e$penses ofadministration;but such authority shall not be granted if inconsistent with the provisionsof a will. In case of such sale, the proceeds shall be assigned to the persons entitled

to the estate in the proper proportions.

N*s+e$)e'l '*es 555


30/69


Herrera Abridged

Sec. =. When court may authori5e sale& mortgage& or other encumbrance of estate to paydebts and legacies in other countries. - 4hen the sale of personal estate, or the sale, mortgage, orother encumbrance of real estate is not necessary to pay the debts, e$penses of administration, orlegacies in the %hilippines, but it appears from records and proceedings of a probate court in anothercountry that the estate of the deceased in such other country is not sufficient to pay the debts, e$pensesof administration, and legacies there0 *+e cu%* +e%e 3$ $u*+%#4e *+e eecu*% % $&3#'#s*%$*%

* sell *+e "e%s'$l es*$*e % * sell0 3%*($(e0 % *+e%,#se e'cu3/e% *+e %e$l es*$*e !% *+e"$3e'* ! &e/*s % le($c#es #' *+e *+e% cu'*%0 #' *+e s$3e 3$''e% $s !% *+e "$3e'* !&e/*s % le($c#es #' *+e P+#l#""#'es.

*e&uisites of ritten notice of application as ell as the time and place of hearing to be servedupon the heirs, devisees and legatees residing in the %hilippines is mandatory, ithout hich theencumbrance is void.

t does not follo that for purposes of complying ith the re&uirement of notice, notice to the fatheris notice to the children.

f the heirs ere duly represented by counsel or by a guardian ad litem in case of minors, the noticemay be given to such counsel or guardian ad litem.

*eason for mandatory re&uirement: heirs are the presumptive oners; they are the personsdirectly affected by the sale or mortgage therefore cannot be deprived of the property e$cept asprovided by la.

Sec. >. When court may authori5e sale& mortgage& or other encumbrance of realty acuired onexecution or foreclosure. - T+e cu%* 3$ $u*+%#4e $' eecu*% % $&3#'#s*%$*% * sell03%*($(e0 % *+e%,#se e'cu3/e% %e$l es*$*e $c:u#%e& / +#3 ' eecu*#' % !%eclsu%es$le0 u'&e% *+e s$3e c#%cu3s*$'ces $'& u'&e% *+e s$3e %e(ul$*#'s $s "%esc%#/e& #' *+#s %ule!% *+e s$le0 3%*($(e0 % *+e% e'cu3/%$'ce ! *+e% %e$l es*$*e.

Sec. 7. 7egulations for granting authority to sell& mortgage& or otherwise encumber estate. -T+e cu%* +$)#'( 8u%#sc*#' ! *+e es*$*e ! *+e &ece$se& 3$ $u*+%#4e *+e eecu*% %$&3#'#s*%$*% * sell "e%s'$l es*$*e0 % * sell0 3%*($(e0 % *+e%,#se e'cu3/e% %e$l es*$*eor approve the sale, hence, a fortiori, it issaid court that can declare it null and void for as long as the proceedings had not been closed orterminated.

An administratri$ of an estate already subject of a special proceeding pending before the probatecourt cannot enjoy blanket authority to dispose of real properties as she pleases.

t is ithin the jurisdiction of a probate court to approve the sale of properties of a deceased personby his prospective heirs before final adjudication.

he probate court has no jurisdiction to make pronouncement regarding the e$istence or non+

e$istence of encumbrances or cancel a mortgage on real property in its order approving the sale ofthe estate under administration.

he sale made by an heir of his share in an inheritance, subject to the result of the pendingadministration is valid and in no ay stands in the ay of such administration.

*eference to judicial approval cannot adversely affect the substantive rights of the heirs to disposeof their ideal share in the co+heirship and>or co+onership among the heirs

An heir can certainly sell hatever right, interest, or participation he may have in the propertyunder administration.

he effect of the alienation or the mortgage, ith respect to the co+oners, shall be limited to theportion hich may be allotted to him in the division upon the termination of the co+onership.

Sec. @. When a court may authori5e conveyance or realty which deceased contracted toconvey'otice' Effect of deed. - 9+e%e *+e deceased was in his lifetime under contract, binding inlaw, to deed real property, or an interest therein, the court having jurisdiction of the estate may, '$""l#c$*#' !% *+$* "u%"se0 $u*+%#4e *+e eecu*% % $&3#'#s*%$*% * c')e suc+ "%"e%*$cc%'( * suc+ c'*%$c*0 % ,#*+ suc+ 3!#c$*#'s $s $%e $(%ee& u"' / *+e "$%*#es $'&$""%)e& / *+e cu%*< and if the contract is to convey real property to the e$ecutor or administrator,the clerk of the court shall e$ecute the deed. he deed executed by such executor, administrator, or clerkof court shall be as effectual to convey the property as if executed by the deceased in his lifetime; /u* 'suc+ c')e$'ce s+$ll /e $u*+%#4e& u'*#l '*#ce ! *+e $""l#c$*#' !% *+$* "u%"se +$s /ee'(#)e' "e%s'$ll % / 3$#l * $ll "e%s's #'*e%es*e&0 $'& such further notice has been given&by publication or otherwise& as the court deems proper' nor if the assets in the hands of theexecutor or administrator will thereby be reduced so as to prevent a creditor from receivinghis full debt or diminish his dividend.

Sec. . When court may authori5e conveyance of lands which deceased held in trust. -$herethe deceased in his lifetime held real property in trust for another person, the court ma0 $!*e% '*#ce(#)e' $s %e:u#%e& #' *+e l$s* "%ece'( sec*#'0 $u*+%#4e *+e eecu*% % $&3#'#s*%$*% *&ee& suc+ "%"e%* * *+e "e%s'0 % +#s eecu*% % $&3#'#s*%$*%0 !% ,+se use $'& /e'e!#*#* ,$s s +el&< $'& *+e cu%* 3$ %&e% *+e eecu*#' ! suc+ *%us*0 ,+e*+e% c%e$*e& / &ee&% / l$,.

A contract of sale is not invalidated by the fact that it is subject to probate court approval, but thesame remains binding on the seller+heir, but not on the other heirs ho have not given theirconsent to it.

A probate court has jurisdiction over matters incidental and collateral to the e$ercise of its

recognized poers. he rule does not limit to the e$ecutor or administrator the right to file the application for authorityto sell, mortgage or otherise encumber realty administration as it inures to any person ho standsto be benefited or injured by the judgment or to be entitled to the avails of the suit.

*ule re&uiring court approval for any disposition merely means that the property may be take outof custodial egis, but only ith courts permission.

he authority of convey here can be given only after notice of the application for that purpose hasbeen given to all persons interested, otherise, the order authorizing the conveyance as ell as theconveyance itself is null and void.

N*s+e$)e'l '*es 555


32/69


Herrera Abridged

RULE

DISTRIBUTION AND PARTITION OF TE ESTATE

Sec. 1. When order for distribution of residue made. - 4hen the debts, funeral charges, ande$penses of administration, the alloance to the ido, and inheritance ta$, if any, chargeable to theestate in accordance ith la, have been paid, the court0 on the application of the e$ecutor oradministrator, or of a person interested in the estate, and after hearing upon notice, shall assign theresidue of the estate to the persons entitled to the same, naming them and the proportions, or parts, tohich each is entitled, and such person may demand and recover their respective shares from thee$ecutor or administrator, or any other person having the same in his possession. If there is acontroversy 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.

N s*%#/u*#' s+$ll /e $ll,e& u'*#l *+e "$3e'* ! *+e /l#($*#'s $/)e 3e'*#'e& +$s

/ee' 3$&e % "%)#&e& !%0 unless the distributees, or any of them, give a bond, in a sum to be fixedby the court, conditioned for the payment of said obligations within such time as the court directs

Sec. 2. 8uestions as to advancement to be determined. - ues*#'s $s * $&)$'ce3e'* 3$&e0% $lle(e& * +$)e /ee' 3$&e0 / *+e &ece$se& * $' +e#% 3$ /e +e$%& $'& &e*e%3#'e& /*+e cu%* +$)#'( 8u%#sc*#' ! *+e es*$*e "%cee'(s< $'& *+e !#'$l %&e% ! *+e cu%**+e%e' s+$ll /e /#''( ' *+e "e%s' %$#s#'( *+e :ues*#'s $'& ' *+e +e#%.

Sec. . $y whom expenses of partition paid. - I! $* *+e *#3e ! *+e s*%#/u*#' *+e eecu*% %$&3#'#s*%$*% +$s %e*$#'e& su!!#c#e'* e!!ec*s #' +#s +$'&s ,+#c+ 3$ l$,!ull /e $""l#e& !% *+ee"e'ses ! "$%*#*#' ! *+e "%"e%*#es s*%#/u*e&0 suc+ e"e'ses ! "$%*#*#' 3$ /e "$#& /suc+ eecu*% % $&3#'#s*%$*% ,+e' #* $""e$%s e:u#*$/le * *+e cu%* $'& '* #'c's#s*e'*

,#*+ *+e #'*e'*#' ! *+e *es*$*%< *+e%,#se0 *+e s+$ll /e "$#& / *+e "$%*#es #' "%"%*#' **+e#% %es"ec*#)e s+$%es % #'*e%es* #' *+e "%e3#ses0 $'& *+e $""%*#'3e'* s+$ll /e se**le& $'&$ll,e& / *+e cu%*0 $'&0 #! $' "e%s' #'*e%es*e& #' *+e "$%*#*#' &es '* "$ +#s "%"%*#'% s+$%e0 *+e cu%* 3$ #ssue $' eecu*#' #' *+e '$3e ! *+e eecu*% % $&3#'#s*%$*%$($#'s* *+e "$%* '* "$#'( !% *+e su3 $ssesse&.

Approval of a project of partition does not necessarily terminate administration.

=efore a court can make a partition and distribution of the estate of a deceased, it must first settle theestate in a special proceeding instituted for the purpose.

he distribution of the estate properties can only be made:

#. After all the debts, funeral charges, e$penses of administration, alloance to the ido and estateta$ have been paid;

2. =efore payment of said obligations only if the distributees or any of them gives a bond in a sumfi$ed by the court conditioned upon the payment of said obligations ithin such time as the courtdirects, or hen provision is made to meet those obligations.

%roceedings for the settlement of estate is deemed ready for final closure:

#. 4hen there should have been issued already an order of distribution or assignment of theestate of the deceased to those entitled;

9. !uch order shall not be issued until it is shon that the debts, funeral e$penses, etc have beenpaid

/. !uch order is usually upon proper and specific application for the purpose of the interestedparty, not of the court.

he folloing stages must be folloed before there could be a distribution of the estate:

a. %ayment of obligations

-ebts, funeral charges, inheritance ta$, if any chargeable to the estate in accordance ith la; ifthere is a residue, this may be distributed among the heirs.

N*s+e$)e'l '*es 555


33/69


34/69


Herrera Abridged

A project of partition is merely a proposal for the distribution of the hereditary estate hichthe court may accept or reject. t is the court that makes that distribution of the estate anddetermines the persons entitled thereto.

t is the order of distribution directing the delivery of the residue of the estate to the personsentitled thereto that brings to a close the intestate proceedings, puts an end to theadministration and thus far relieves the administrator from his duties.

he court ac&uires jurisdiction over all persons interested, through the publication of thenotice prescribed and any order that may be entered therein is binding against all of them.

he only instance here a party interested in a probate proceeding may have a finalli&uidation set aside is hen he is left out by reason of circumstances beyond his control orthrough mistake or inadvertence not imputable to negligence.

he better practice to secure relief is reopening of the same case by proper motion ithinthe reglementary period, instead of an independent action.

f decree is erroneous, it should be corrected by opportune appeal, for once it becomes final,its binding effect it like any other judgment in rem, unless properly set aside for lack of

jurisdiction or fraud.

A court should not interfere ith probate proceedings pending in a co+e&ual court.

As long as the order of the distribution of the estate has not been complied ith, the probate

proceedings cannot be deemed closed and terminated, because a judicial partition is notfinal and conclusive and does not prevent the heirs from bringing an action to obtain hisshare, provided the prescriptive period therefore has not elapsed.

he intestate proceedings although closed and terminated, can still be reopened ithin theprescriptive period upon petition by the preterited heir.

he settlement of the estate is deemed terminated only upon final distribution of the estate.

2rder hich determines the distributive shares of the heirs of a deceased person isappealable.

! once alloed the continuation of a separate action to annul the project of partition, sincethe estate proceedings have been closed and terminated for over three years.

he non+distribution of the estate is not a ground for the reopening of the testateproceedings.

A preterited heir as alloed to file an action to annul the project of partition here the

estate proceedings have already been closed. A spurious child is alloed to file a separate action to establish filiation and at the same

time enforce his hereditary rights.

he administration proceedings may not be closed if there is an action by third personsagainst the administrator and the heirs for the recovery of property involved in theproceedings and in such case the closure must ait until the ordinary civil action is finallyterminated.

nstances hen probate court may issue rit of e$ecution(inclusion unius est e$clusionalterius):

#. o satisfy the contributive shares of devisees, legatees and heirs in possession of thedecedents estate;

9. o enforce payment of e$penses of partition;

o satisfy the costs hen a person is cited for e$amination in probate proceedings.

he probate court has the authority to order the issuance of a rit of possession for therecovery of the share by the heir or other interested person from the e$ecutor oradministrator or other persons having possession of the property ithout the need ofprevious demand.

Sec. ;. 7ecording the order of partition of estate. - Ce%*#!#e& c"#es ! !#'$l %&e%s $'&8u&(3e'*s ! *+e cu%* %el$*#'( * *+e %e$l es*$*e % *+e "$%*#*#' *+e%e! s+$ll /e %ec%&e& #'*+e %e(#s*% ! &ee&s ! *+e "%)#'ce ,+e%e *+e "%"e%* #s s#*u$*e&.

RULE 1

ESCEATSSec. 1. When and by whom petition filed. - 9+e' $ "e%s' es #'*es*$*e0 se#4e& ! %e$l %"e%s'$l "%"e%* #' *+e P+#l#""#'es0 le$)#'( ' +e#% % "e%s' / l$, e'*#*le& * *+e s$3e0 *+eSl#c#*% Ge'e%$l % +#s %e"%ese'*$*#)e #' /e+$l! ! *+e Re"u/l#c ! *+e P+#l#""#'es0 3$ !#le $"e*#*#' #' *+e Cu%* ! F#%s* I's*$'ce ! *+e "%)#'ce ,+e%e *+e &ece$se& l$s* %es#&e& % #'

N*s+e$)e'l '*es 555


35/69


Herrera Abridged

,+#c+ +e +$& es*$*e0 #! +e %es#&e& u* ! *+e P+#l#""#'es0 se**#'( !%*+ *+e !$c*s0 $'& "%$#'(*+$* *+e es*$*e ! *+e &ece$se& /e &ecl$%e& esc+e$*e&.

"scheat is a proceedings hereby the real and personal property of a deceased person in the%hilippines, become the property of the state upon his death, ithout leaving any ill or legal heirs.

his is a substantial right of the state; a special proceeding hich is commenced by petition, notcomplaint.

his must be initiated by the government through the !olicitor general.

All interested parties especially the actual occupants and the adjacent lot oners shall bepersonally notified of the proceeding and given the opportunity to present their valid claims,otherise it ill be reverted to the !tate.

A depositary bank should be joined as a respondent in an action for escheat since a decree ofescheat ould necessarily deprive it of the use of such deposit, under the la on forfeiture ofdormant bank deposits.

%etition for escheat may be filed ith the * of the province here the deceased last resided or inhich he had estate, if he as a non+resident.

*e&uisites for filing the petition:#. he person died intestate;9. -eceased left no heirs or person by la entitled to the same/. he deceased left properties.

2nce the court ac&uires jurisdiction to hear the petition for escheat by virtue of the publication ofthe petition for escheat, this jurisdiction cannot be converted into one for distribution of theproperties of the decedent.

Sec. 2. 0rder for hearing. - I! *+e "e*#*#' #s su!!#c#e'* #' !%3 $'& su/s*$'ce0 *+e cu%*0 / $'%&e% %ec#*#'( *+e "u%"se ! *+e "e*#*#'0 s+$ll !# $ &$*e $'& "l$ce !% *+e +e$%#'( *+e%e!0

,+#c+ &$*e s+$ll /e '* 3%e *+$' s# ?> 3'*+s $!*e% *+e e'*% ! *+e %&e%0 $'& s+$ll %ec**+$* $ c" ! *+e %&e% /e "u/l#s+e& /e!%e *+e +e$%#'( $* le$s* 'ce $ ,ee6 !% s# ?>success#)e ,ee6s #' s3e 'e,s"$"e% ! (e'e%$l c#%cul$*#' "u/l#s+e& #' *+e "%)#'ce0 $s *+ecu%* s+$ll &ee3 /es*.

'otion to dismiss is alloed hen petition failed to state the facts hich entitle the petitioner to theremedy prayed for, akin to demurrer to evidence, petition may be conse&uently dismissed.

Sec. . )earing and judgment. - U"' *+e s$*#s!$c*% "%! #' "e' cu%* ' *+e &$*e !#e& #'*+e %&e% *+$* suc+ %&e% +$s /ee' "u/l#s+e& $s %ec*e& $'& *+$* *+e "e%s' e& #'*es*$*e0se#4e& ! %e$l % "e%s'$l "%"e%* #' *+e P+#l#""#'es0 le$)#'( ' +e#% % "e%s' e'*#*le& * *+es$3e0 $'& ' su!!#c#e'* c$use /e#'( s+,' * *+e c'*%$%0 *+e cu%* s+$ll $&8u&(e *+$* *+ees*$*e ! *+e &ece$se& #' *+e P+#l#""#'es0 $!*e% *+e "$3e'* ! 8us* &e/*s $'& c+$%(es0 s+$ll

esc+e$*< $'& s+$ll0 "u%su$'* * l$,0 $ss#(' *+e "e%s'$l es*$*e * *+e 3u'#c#"$l#* % c#*,+e%e +e l$s* %es#&e& #' *+e P+#l#""#'es0 $'& *+e %e$l es*$*e * *+e 3u'#c#"$l#*#es % c#*#es0%es"ec*#)el0 #' ,+#c+ *+e s$3e #s s#*u$*e&. I! *+e &ece$se& 'e)e% %es#&e& #' *+e P+#l#""#'es0*+e ,+le es*$*e 3$ /e $ss#('e& * *+e %es"ec*#)e 3u'#c#"$l#*#es % c#*#es ,+e%e *+e s$3e #slc$*e&. Suc+ es*$*e s+$ll /e !% *+e /e'e!#* ! "u/l#c sc+ls0 $'& "u/l#c c+$%#*$/le#'s*#*u*#'s $'& ce'*e%s #' s$#& 3u'#c#"$l#*#es % c#*#es.

T+e cu%*0 $* *+e #'s*$'ce ! $' #'*e%es*e& "$%*0 % ' #*s ,' 3*#'0 3$ %&e% *+ees*$/l#s+3e'* ! $ "e%3$'e'* *%us*0 s *+$* 'l *+e #'c3e !%3 *+e "%"e%* s+$ll /e use&.

A judgment of escheat as held conclusive upon persons notified by advertisement to all personsinterested.

"scheats and forfeitures are not favored by la, and the modern rule under statutes regulating

escheat proceedings is that the burden of proof rests on the state to prove that the property in&uestion is in all respects liable to escheat.

he right to escheat may be aived, either e$pressly or impliedly.

Sec. ;. When and by whom claim to estate filed. - I! $ &e)#see0 le($*ee0 +e#%0 ,#&,0 ,#&,e%% *+e% "e%s' e'*#*le& * suc+ es*$*e $""e$%s $'& !#les $ cl$#3 *+e%e* ,#*+ *+e cu%* ,#*+#'!#)e ?= e$%s !%3 *+e &$*e ! suc+ 8u&(3e'*0 suc+ "e%s' s+$ll +$)e "ssess#' ! $'& *#*le* *+e s$3e0 % #! sl&0 *+e 3u'#c#"$l#* % c#* s+$ll /e $ccu'*$/le * +#3 !% *+e "%cee&s0

N*s+e$)e'l '*es 555


36/69


Herrera Abridged

$!*e% &e&uc*#'( %e$s'$/le c+$%(es !% *+e c$%e ! *+e es*$*e< /u* $ cl$#3 '* 3$&e ,#*+#'s$#& *#3e s+$ll /e !%e)e% /$%%e&.

f a person legally entitled to the estate of the decedent appears, he should file a claim ith thecourt ithin D years from the date the property as delivered to the state, otherise, it is barred.

n the absence of jurisdiction to order an escheat due to noncompliance ith jurisdictionalre&uirements, the court has no jurisdiction to grant the remedy enabling the devisee, legatee, heir,ido, idoer or other person entitled to the estate to appear ithin a specific period from thedate of the decree of escheat and file a claim to the estate.

Sec. =. 0ther actions for escheat. - U'*#l *+e%,#se "%)#&e& / l$,0 $c*#'s !% %e)e%s#' %esc+e$* ! "%"e%*#es $l#e'$*e& #' )#l$*#' ! *+e C's*#*u*#' % ! $' s*$*u*e s+$ll /e()e%'e& / *+#s %ule0 ece"* *+$* *+e $c*#' s+$ll /e #'s*#*u*e& #' *+e "%)#'ce ,+e%e *+e l$'&l#es #' ,+le % #' "$%*.

"scheat and reversion have the same effects. hey only differ in the enabling la, reversion isunder public land act.

A proceeding to escheat or for reversion of lands held in violation of las prohibiting alien

onership has been held to be a civil action rather than a criminal proceeding.

uardianship+ poer of protective authority given by la and imposed on an individual ho is free and inthe enjoyment of his rights, over one hose eakness on account of his age or other infirmity renders himunable to protect himself.

uardian+ a person in hom the la has entrusted the custody and control of the person or estate or both

of an infant, insane or other person incapable of managing his on affairs.

A trust relation;

=ased on parens patriae;

%urpose is to safeguard the right and interest of minors and incompetent persons;

7inds: guardian of the person, guardian of the property, general guardians, legal guardians, guardian adlitem, judicial guardian.

uardianship of minors is under the e$clusive jurisdiction of the family courts, hile those of other

incompetent are still ith *.

*ule on uardianship of minors is governed by A' 3o. 0/8+09+0D !

*ule of guardianship of incompetents, other than minors is governed by *ule E9+EF.

!alient features of A' 3o. 0/8+09+0D !:

%arents shall e$ercise joint legal guardianship over the person and property of the minor ithout need ofcourt appointment of if the property of the child is orth 9k or less. (subject to / e$ceptions)

4ho may file petition:

any relative or other person on behalf a minor;

or the minor himself if fourteen years of age or over;

f minor needs to be hospitalized, may be filed by the !ecretary of !ocial elfare and development ofsecretary of health.

4here to file: amily court of the province or city here the minor actually resides

N*s+e$)e'l '*es 555


37/69


Herrera Abridged

f resident of foreign country, in the amily ourt of province here his property or any part thereof issituated.

RULE 2

VENUESec. 1. Where to institute proceedings. - Gu$%$'s+#" ! *+e "e%s' % es*$*e ! $ 3#'% %#'c3"e*e'* 3$ /e #'s*#*u*e& #' *+e Cu%* ! F#%s* I's*$'ce ! *+e "%)#'ce0 % #' *+e 8us*#ce! *+e "e$ce cu%* ! *+e 3u'#c#"$l#*0 % #' *+e 3u'#c#"$l cu%* ! *+e c+$%*e%e& c#* ,+e%e *+e3#'% % #'c3"e*e'* "e%s' %es#&es0 $'& if he resides in a foreign country, in the ourt of irstnstance of the province herein his property or part thereof is situated; provided, hoever, that herethe value of the property of such minor or incompetent e$ceeds the jurisdiction of the justice of the peaceor municipal court, the proceedings shall be instituted in the ourt of irst nstance.

I' *+e C#* ! M$'#l$0 *+e "%cee'(s s+$ll /e #'s*#*u*e& #' *+e Ju)e'#le $'& D3es*#cRel$*#'s Cu%*.

Authority of the guardian may e$tend only to the property of the minor or incompetent ithin such state.

*esidence is normally understood to mean the domicile of the minor or incompetent.

Sec. 2. /eaning of word 9incompetent.9 - U'&e% *+#s %ule0 *+e ,%& 9incompetent9 #'clu&es"e%s's su!!e%#'( *+e "e'$l* ! c#)#l #'*e%c*#' % ,+ $%e +s"#*$l#4e& le"e%s0 "%($ls0&e$! $'& &u3/ ,+ $%e u'$/le * %e$& $'& ,%#*e0 *+se ,+ $%e ! u'su'& 3#'&0 e)e'*+u(+ *+e +$)e luc#& #'*e%)$ls0 $'& "e%s's '* /e#'( ! u'su'& 3#'&0 /u* / %e$s' !$(e0 se$se0 ,e$6 3#'&0 $'& *+e% s#3#l$% c$uses0 c$''*0 ,#*+u* u*s#&e $#&0 *$6e c$%e !*+e3sel)es $'& 3$'$(e *+e#% "%"e%*0 /ec3#'( *+e%e/ $' e$s "%e !% &ece#* $'&e"l#*$*#'.

ivil interdiction deprives the offender during the time of his sentence of his rights of parentalauthority, or guardianship, either as to the person or property of any ard, of marital authority, orthe right to manage his property and of any right to dispose of such property by any act or anyconveyance inter vivos. ?ikeise, they are deemed incompetent for hom guardians may beappointed.

n order to render a person legally unfit to administer his affairs, his acts of prodigality must sho amorbid mnd and a disposition to spend or aste the estate so as to e$pose his family to ant or todeprive his forced heirs of their inheritance.

he court before it can issue a decree of prodigality, must have before it competent evidence

demonstrating the necessary facts and the evidence must be clear and definite. "very adult is presumed sane. 5oever, here the &uestion of insanity is put in issue in

guardianship proceedings, and a guardian is named for the person alleged to be incapacitated, apresumption of the mental infirmity of the ard is created.

Sec. . 1ransfer of venue. -he court taking cognizance of a guardianship proceeding, may transfer thesame to the court of another province or municipality herein the ard has ac&uired real property,if hehas transferred thereto his bona-fide residence, and the latter court shall have full

jurisdiction to continue the proceedings, without requiring payment of additional court

fees.

When a case is filed in one branch of the RTC, jurisdiction over the case does not

attach to the branch of judge alone to the exclusion of other branches.

ut when one branch had already resumed its jurisdiction by issuing two orders, the other

branch should relin!uish its jurisdiction over the guardianship proceedings.

RULE

APPOINTMENT OF GUARDIANS

N*s+e$)e'l '*es 555


38/69


Herrera Abridged

Sec. 1. Who may petition for appointment of guardian for resident. - A' %el$*#)e0 !%#e'&0 %*+e% "e%s' ' /e+$l! ! $ %es#&e'* 3#'% % #'c3"e*e'* ho has no parent or laful guardian,% the minor himself if fourteen years of age or over,3$ "e*#*#' *+e cu%* +$)#'( 8u%#sc*#' !%*+e $""#'*3e'* ! $ (e'e%$l (u$%$' !% *+e "e%s' % es*$*e0 % /*+0 ! suc+ 3#'% %#'c3"e*e'*. A' !!#ce% ! *+e Fe&e%$l A&3#'#s*%$*#' ! *+e U'#*e& S*$*es #' *+e P+#l#""#'es

3$ $ls !#le $ "e*#*#' #' !$)% ! $ ,$%& *+e%e!0 $'& *+e D#%ec*% ! e$l*+0 #' !$)% ! $'#'s$'e "e%s' ,+ s+ul& /e +s"#*$l#4e&0 % #' !$)% ! $' #sl$*e& le"e%.

rom the fact that a person may be incompetent to act as e$ecutor or administrator, it does notfollo that he could be placed under guardianship.

=ut if a person is incompetent to act as e$ecutor or administrator, then he is not the incompetentperson envisaged in the la of guardianship.

Sec. 2. (ontents of petition. - A "e*#*#' !% *+e $""#'*3e'* ! $ (e'e%$l (u$%$' 3us* s+,0s !$% $s 6',' * *+e "e*#*#'e%

?$ T+e 8u%#sc*#'$l !$c*s


39/69


Herrera Abridged

o !ervice of notice upon the minor if above #8 years or upon the incompetent is jurisdictional,

ithout hich the court ac&uired no jurisdiction to appoint a guardian.

Sec. ;. 0pposition to petition. - A' interested person may, by filing a written opposition,

contest the petition on the ground of majority of the alleged minor0 c3"e*e'c ! *+e

$lle(e& #'c3"e*e'*0 or the unsuitability of the person for whom letters are prayed, and may pray thatthe petition be dismissed, % *+$* letters of guardianship issue to himself, or to any suitable personnamed in the opposition.

he opposition must be in riting, but need not be verified.

rounds:

'ajority of the alleged minor;

ompetency of the alleged incompetent

ncompetency of the person for hom letters are prayed for.

f the interested person is a creditor and mortgagee of the estate of the minor, he cannot beappointed guardian of the person and property of the latter.

2pposition to the appointment of a person as guardian ad litem should be first addressed to andresolved by the loer court and not first time on appeal. =ut if dismissed by loer court, it may beappealed.

Sec. =. )earing and order for letters to issue. - A* *+e +e$%#'( ! *+e "e*#*#' *+e $lle(e'c3"e*e'* 3us* /e "%ese'* #! $/le * $**e'&

0 $'& it must be shon that the re&uired notice hasbeen given. hereupon the court shall hear the evidence of the parties in support of their respectiveallegations, and, if the person in %uestion is a minor, or incompetent it s+$ll $""#'* $ su#*$/le(u$%$' ! +#s "e%s' % es*$*e0 % /*+0 ,#*+ *+e ",e%s $'& &u*#es +e%e#'$!*e% s"ec#!#e&.

he order issuing letters of guardianship should be sufficient in form and substance to invest theappointee ith due authority; and statutory re&uirements ith respect to hat shall be contained

or specified in the order must be complied ith. he order must identify the ard, but it is not essential that the ard be mentioned by name if he is

otherise sufficiently identified.

n determining the selection of a guardian, the court may consider the financial situation, thephysical condition and sound judgment, prudence and trustorthiness, the morals, character andconduct, and the present and past history of a prospective appointee, as ell as the probability ofhis being able to e$ercise the poers and duties of a guardian for the full period during hichguardianship ill be necessary.

*easons for incompetency of guardian (dis&ualification):

'ental incapacity;

onviction of a crime, moral delin&uency or physical disability as to be prevented from properlydischarging duties of his office.

A guardian once appointed may be removed in case he becomes insane, or otherise incapable ofdischarging his trust or unsuitable therefor, or has asted or mismanaged the estate or failed for/0 days after it is due to render an account or make a return.

here is no order of preference in the appointment of guardians.

Sec. >. When and how guardian for nonresident appointed' otice. - 9+e' $ "e%s' l#$/le */e "u* u'&e% (u$%$'s+#" %es#&es ,#*+u* *+e P+#l#""#'es /u* +$s es*$*e *+e%e#'0 any relative orfriend of such person, or any one interested in his estate, in e$pectancy or otherise, may petition a courthaving jurisdiction for the appointment of a guardian for the estate, $'& if, after notice given to such

person and in such manner as the court deems proper, by publication or otherwise, and hearing, the courtis satisfied that such nonresident is a minor or incompetent rendering a guardian necessary or convenient0

#* 3$ $""#'* $ (u$%$' !% suc+ es*$*e.

Ancillary guardianship means a guardianship in a state other than that in hich guardianship isoriginally granted and hich is subservient and subsidiary to the latter.

A court of a state in hich an incompetent has property has jurisdiction to appoint a guardian to hisestate in hich case, jurisdiction may be ac&uired by constructive notice by publication.

he confusing part is: it is generally considered that a proceeding to in&uire into the insanity ofalleged incompetent for the purpose of appointing a guardian of his person is in personam and

N*s+e$)e'l '*es 555


40/69


Herrera Abridged

some courts broadly state that the personal service distinct from service by publication is essentialto give the court jurisdiction.

Sec. 7. Parents as guardians. - 9+e' *+e "%"e%* ! *+e c+#l& u'&e% "$%e'*$l $u*+%#* #s,%*+ *, *+us$'& "ess % less0 *+e !$*+e% % *+e 3*+e%0 ,#*+u* *+e 'ecess#* ! cu%*$""#'*3e'*0 s+$ll /e +#s le($l (u$%$'. 9+e' *+e "%"e%* ! *+e c+#l& #s ,%*+ 3%e *+$'*, *+us$'& "ess0 *+e !$*+e% % *+e 3*+e% s+$ll /e c's#&e%e& (u$%$' ! *+e c+#l&s"%"e%*0 ,#*+ *+e &u*#es $'& /l#($*#'s ! (u$%$'s u'&e% *+ese %ules0 $'& s+$ll !#le *+e"e*#*#' %e:u#%e& / sec*#' 2 *+e%e!. F% (& %e$s's *+e cu%* 3$0 +,e)e%0 $""#'*$'*+e% su#*$/le "e%s'.(this is deemed modified by the )

%arents ho are the natural guardians cannot dispose the property of the child because such poer isgranted by la only to a judicial guardian of the ards property and even then only ith courts priorapproval.

-isposal of minors property ithout court approval is null and void, and ill not constitute lien on the

property and does not bind any party ho may conse&uently legally ac&uire onership thereof, even if thelatter had knoledge of such transaction prior to their ac&uisition of said property.

Bendees prejudiced by illegal transactions of natural guardians have no cause of action againstsubse&uent legal oners but the reedy lies against the natural guardians not to recover the property, butrecover damages.

Sec. @. Service of judgment. - -inal orders or judgments under this rule shall be served upon the civilregistrar of the municipality or city where the minor or incompetent person residesor where his propertyor part thereof is situated

RULE ;

BONDS OF GUARDIANSSec. 1. $ond to be given before issuance of letters' Amount' (onditions. - Be!%e $ (u$%$'$""#'*e& e'*e%s u"' *+e eecu*#' ! +#s *%us*0 % le**e%s ! (u$%$'s+#" #ssue0 he shall givea bond, in such sum as the court directs, conditioned as follos:

?$ T make and return to the court, ithin three (/) months, a true and complete inventory of all theestate, real and personal, of his ard hich shall come to his possession or knoledge or * *+e"ssess#' % 6',le&(e ! $' *+e% "e%s' !% +#3


41/69


Herrera Abridged

A guardians bond takes effect as of the day of its date and of his appointment, notithstanding thebond may have been filed later.

At the e$piration>termination of the guardianship, the guardian shall settle his account ith thecourt and deliver and pay over the estate, effects and moneys remaining in his hands or due fromhim on such settlement to the person entitled thereto.

Sec. 2. When new bond may be reuired and old sureties discharged. - 4henever it is deemednecessary, the court may re&uire a ne bond to be given by the guardian, and may discharge the suretieson the old bond from further liability, after due notice to interested persons0 ,+e' ' #'8u% c$' %esul**+e%e!%3 * *+se #'*e%es*e& #' *+e es*$*e.

*e&uiring additional bond is ithin the authority of the court.

3e bond may be re&uired hen the guardian is about to receive funds not in contemplation henthe original bond as e$ecuted and should be given as a condition of the payment of a legacy ordistributive share to the guardian hen there is any e$press statutory re&uirements to that effect.

Sec. . $onds to be filed' Actions thereon. - E)e% bond given by a guardian shall be filed in theoffice of the clerk of the court0 $'&0 in case of the breach of a condition thereof, may be prosecuted in the

same proceeding or in a separate action for the use and benefit of the ard% ! $' *+e% "e%s'le($ll #'*e%es*e& #' *+e es*$*e.

he bond ill be construed and enforced in accordance ith the intention and scope of theguardian and his surety in giving it.

heir responsibility must depend upon the e$tent of the obligation created by the terms of the bondand the statutes hich can be read into it.

he bond of the guardian is continuing one against the obligators and their estates until all of itscondition are fulfilled.

he mere fact that defendant as removed as guardian did not relieve her or her bondsmen fromliability during the time she as duly acting as such guardian.

he sureties of a guardian against hom judgment has been entered may demand the benefit of a

levy of the principals property even hen judgment is rendered against both surety and principal.

RULE =

SELLING AND ENCUMBERING PROPERTY OF 9ARD

Sec. 1. Petition of guardian for leave to sell or encumber estate. - 9+e' *+e #'c3e ! $'es*$*e u'&e% (u$%$'s+#" #s #'su!!#c#e'* * 3$#'*$#' *+e ,$%& $'& +#s !$3#l0 % * 3$#'*$#'$'& e&uc$*e *+e ,$%& ,+e' $ 3#'%0 % ,+e' #* $""e$%s *+$* #* #s !% *+e /e'e!#* ! *+e ,$%&*+$* +#s %e$l es*$*e % s3e "$%* *+e%e! /e sl&0 % 3%*($(e& % *+e%,#se e'cu3/e%e&0 $'&*+e "%cee&s *+e%e! "u* u* $* #'*e%es*0 % #')es*e& #' s3e "%&uc*#)e secu%#*0 % #' *+e#3"%)e3e'* % secu%#* ! *+e% %e$l es*$*e ! *+e ,$%&0 *+e (u$%$' 3$ "%ese'* $ )e%#!#e&

"e*#*#' * *+e cu%* / ,+#c+ +e ,$s $""#'*e& se**#'( !%*+ suc+ !$c*s0 $'& "%$#'( *+$* $'%&e% #ssue $u*+%#4#'( *+e s$le % e'cu3/%$'ce.

4hen guardian may sell or encumber the estate of the ard:#. he income of the estate of the minor or incompetent under guardianship is insufficient to maintain

the ard and his family;9. he income is insufficient to maintain and educate the ard hen a minor; or/. t appears that it is for the benefit of the ard that his real estate or some part thereof be sold or

mortgaged or otherise encumbered, and the proceeds thereof put out at interest or invested insome productive security, or in the improvement or security of other real estate of the ard.

o n order to enable the guardian to sell or encumber the estate of the ard, a petition must

first be filed before the court for such sale or encumbrance.

o A guardian has no authority to sell real estate of his ard merely by reason of his generalpoers, and in the absence of any special authority to sell conferred by ill, statute or orderof court, a sale of the ards realty by the guardian ithout authority form the court is void.

Sec. 2. 0rder to show cause thereupon. - I! #* see3s "%/$/le *+$* suc+ s$le % e'cu3/%$'ce #s'ecess$%0 % ,ul& /e /e'e!#c#$l * *+e ,$%&0 *+e cu%* s+$ll 3$6e $' %&e% %ec*#'( *+e 'e*

N*s+e$)e'l '*es 555


42/69


Herrera Abridged

! 6#' ! *+e ,$%&0 $'& $ll "e%s's #'*e%es*e& #' *+e es*$*e0 * $""e$% $* $ %e$s'$/le *#3e $'&"l$ce *+e%e#' s"ec#!#e& * s+, c$use ,+ *+e "%$e% ! *+e "e*#*#' s+ul& '* /e (%$'*e&.

3e$t of kin+ not the ne$t of kindred but those relatives ho share in the estate according to thestatute of distribution.

3otice to ne$t of kin is a jurisdictional re&uirement and hich may not be dispensed ith.

he notice is sufficient hen it recites that notice is thereby given that a petition to sell the ardsreal estate ill be presented to a named court, at a named place, on a named date, and hen andhere all persons interested may, appear and sho cause, if they have any, hy such petitionshould not be granted.

2mission of time, court ac&uires no jurisdiction, sale is void.

2nly the children have an interest in the land of their father, besides the creditors, and only they orthe creditors ho may have been prejudiced by the sale have a right to object thereto.

Sec. . )earing on return of order' (osts. - At the time and place designated in the order to shocause0 the court shall hear the proofs and allegations of the petitioner and next of kin, and other personsinterested, together with their witnesses, and grant or refuse the prayer of the petition as the bestinterests of the ward re%uire +e cu%* s+$ll 3$6e suc+ %&e% $s * cs*s ! *+e +e$%#'( $s 3$ /e

8us*.

he court should ascertain and determine hether the facts re&uisite to the granting of the petitione$ist, and should select the part or parts of the prope

69089334 special proceedings (2)

Documents