SPECIAL PROCEEDINGS

Settlement of Estate. If you look into the table of contents of your Rules
of Court, you will notice that partly special proceedings consist only of 37 rul
es. And then out of the 37 rules, 20 of them are concerned with settlement of es
tate, that is more than of the rules on special proceedings are centered on sett
lement of estate of deceased persons. Some of these rules are no longer applicab
le the constitution of the family home has practically been rendered useless by
the Family Code. If you go through the last part of the Rules of Court, you will
also notice that in the distribution of examinations in procedure, the rules ex
plicitly require that 60% of questions in the Bar should come from civil actions
, that s civil procedure, 20% of the questions should be centered on evidence, 10%
in criminal procedure and also 10% in special proceedings. So if there is a nee
d to give an emphasis in procedure, do so in civil actions and probably evidence
. And of course civil actions will include the rule on the jurisdiction of court
s.
The rules governing settlement of estate could easily be understood if we d
efine some of the terms that are scattered among these 20 rules, the 1st term th
at you should take note of is testamentary privilege. This is not embodied in th
e Rules of Court. It is part of the Civil Code which is implemented by the rules
on the settlement of estate, testamentary privilege refers to the right given b
y law to a person to dispose of his property during his lifetime but the disposi
tion of the property may take effect after his death. So it is unlike a disposit
ion during the lifetime of a person and the disposition also takes effect during
his lifetime like a deed of sale by the owner. In a testamentary privilege, the
re is a disposition by the person of his property through an instrument authoriz
ed by law and that disposition will take place after his death. It is this dispo
sition that is regulated by the rules of settlement of estate.
Another term that you should be familiar with is letters of administration,
letters testamentary, letters of administration with the will annexed, special
administrator, special administration, and ancillary administration. Letters tes
tamentary is the authority given by the court to an executor who has been duly a
dmitted probate and in that will the testator has nominated an executor and this
executor and this executor is duly appointed by the court and the executor last
ly accepts the office that is given to him by the court. When the executor nomin
ated in the will accepts the trust and he complies with the other procedural req
uirements, the court will issue letters testamentary. But if there is no will or
even if there is a will but the executor refuses to accept the trust, the court
will appoint an administrator. The appointment of this administrator if there i
s a will is contained in a document called letters of administration with the wi
ll annexed. When the document is simply letters of administration it means that
there is no will or if there is a will it has not been only admitted to probate
and therefore intestacy results. The administrator will be appointed by the cour
t and the appointment of this administrator will be evidenced by what we call as
letters of administration. An ancillary administrator, on the other hand, assum
es or presupposes that there is a principal administration proceeding in a forei
gn country but the document left some properties in the Philippines. The decisio
n of the foreign courts to appoint an executor or administrator to that foreign
country cannot be enforced in the Philippines because the efficacy of orders or
decisions rendered by the court is limited to the territorial jurisdiction of th
e court. In order to have an administrator in the other country where the descen
dant has left some properties, the recourse is ancillary administration. The adm
inistrator for this particular purpose is called an ancillary administrator.
Also in settlement proceedings, you should be familiar with what is known a
s the statute of non-claims. The statute of non-claims is contained in Rule 86.
It is a rule of prescription contained in the Rules of Court. In Rule 86, it is
provided that all claims for money arising from a contract, express or implied t
hose on funeral expenses, hospitalization should be filed within a certain perio
d. Otherwise, these claims are barred. So the statute of non-claims provides for
a prescription with which, claims should be submitted to the court. The consequ
ence if these claims are not duly submitted to the settlement court on time, the
n the creditors will lose their right to enforce collection of their claims. Tha
t is the statute of non-claims. So, in procedure, you have some other statute li
ke the statute of frauds, statute of limitations, but on settlement proceedings,
we also have this statute of non-claims.
If is very easy to understand that the settlement proceedings could take pl
ace only after the decedent has died. If the person is still alive and he, for i
nstance, executes a will during his lifetime, he himself can go to court and ask
for the probate of his will. But even if a will has duly been admitted to proba
te during the lifetime of this person, there is nothing to prevent him from revo
king the will or executing another will. So, usually this proceeding takes place
after the death of the decedent or the testator. In the Civil code, when a pers
on dies, the heirship automatically vests upon the heirs that means to say that
the heirs become such immediately after the death of the testator. But it does n
ot mean to say that the heirs can automatically take possession and ownership ov
er the properties left by the decedent. This is qualified by the absence of cred
itors of this decedent. In settlement, therefore, the principal purpose of settl
ement proceedings is to liquidate the estate of the deceased.
When we talk about liquidation, we refer to the acts of making an [1] inven
tory of all the properties of the deceased, and [2] naming all the creditors of
the deceased person. The heirs cannot inherit anything if it turns out that ther
e are more liabilities than assets of the estate. So, if the estate of a decease
d person is insolvent, the heirs will not inherit anything. The creditors of the
deceased person are always given preference over his heirs. Included in the ter
m creditors is the Republic of the Philippines, in the form of taxes. So the State
will always get its share in the taxes of other creditors and the heirs of the
deceased person. If a person dies and there is no will left by him, the law give
s two options to the heirs when it comes to the matter of the settlement of the
estate. The first option is for the heirs not to go to court anymore. They can s
ettle the estate among themselves extra-judicially that is, without interference
by the court. But if there is no agreement among the heirs or if there is dispu
te among them, the only recourse is to go to court. When they go to court, they
could either file a complaint for partition, which is special civil action, or t
hey could institute settlement proceedings that is a probate proceeding or a pro
ceeding on intestacy. When the case filed is partition, then that will not be co
nsidered as a special proceeding. Partition is treated under the rules as a spec
ial civil action. The whole thrust of this procedure is that the Republic of the
Philippines should always get its share in the form of taxes. So, even if the h
eirs extra-judicially settle the estate of the predecessor in interest on the pr
emise that there is will and there are no debts. That extra-judicial settlement
can never be registered by the officers of the government unless the taxes are p
aid first.
What are the conditions before the heirs of a deceased person, can extra-ju
dicially settles the estate of the descent? First, the decedent must have left a
will. Second, there are no debts. Third, the parties agree among themselves to
the partition of the properties left by the decedent. The document that is execu
ted by the heirs, if there are two or more heirs called the deed of extra-judici
al partition. If there is only one heir, the document that is executed is affida
vit of self-adjudication. But remember that the facts that must be stated in the
deed of extra-judicial partition or in the affidavit of self-adjudication are t
hat there was a will left behind and that the decedent did not leave any indebte
dness, there are no creditors of the estate. If the estate consist personal and
real properties, there will be need for the certification title to be transferre
d in the name of the heirs in accordance with the partition agreed upon in the
deed of extra-judicial partition. Before the Registrar of Deeds will record any
deed of extra-judicial partition, the Registrar of Deeds is required by law to
compel the heirs to submit a clearance from the BIR. The Registrar of Deeds will
not register any document extra-judicially partitioning the property unless the
re is a clearance from the BIR. We mean say that the Register of Deeds must be s
atisfied that the proper taxes have already been paid to the government. So whet
her the proceeding is judicial or extra-judicial, the state will always get its
share. The Republic of the Philippines will get its share from the estate in the
form of taxes. With respect to the Republic of the Philippines, there is practi
cally no danger that the Republic will lose the taxes. The particular concern is
with the other creditor of the deceased. Since it is very easy and convenient f
or the heirs to state in the deed of extra-judicial partition that the decedent
did not leave any indebtedness, it is very likely that the heirs are not telling
the truth. If they say in the document that there are no creditors or that ther
e is no indebtedness. Left behind, the Register of Deeds will simply believe wha
t they are alleging in the deed of extra-judicial partition or in the affidavit
of self-adjudication. The protection given by the rules to the creditors is that
if the estate consists of real properties, the title that will be issued to the
heirs will carry an encumbrance that the properties will be liable for the paym
ent of indebtedness within a period of 2 years. If there are no real properties
involved, the protection given by law to the creditors is that these heirs will
be required to file a bond equivalent to the value of the personal properties le
ft behind. So insofar as creditors are concerned, there is also ample protection
even if the estate is settled extra-judicially among their heirs. Any creditor
who is prejudiced by the extra-judicially among their heirs. Any creditor who is
prejudiced by the extra-judicial settlement can later on enforce his claim beca
use there is an annotation in the title delivered to the heirs that these proper
ties are subject to the payment of creditors within a period of 2 years.
If the heirs decide to go to court by way of settlement proceedings, they a
re also given 2 options. The first is to settle the estate is practically useles
s because the amount stated in the rules has never been changed. Under the rules
, summary settlement of estate is possible only if the value of the estate does
not go beyond PhP10, 000. So it s useless. Heirs will not bother themselves filing
a petition for summary settlement if the value of the estate is only PhP10, 000
. That will not even be enough to cover the cost of publication.
When they go to court in regular settlement proceedings, the first problem
which the heirs will face is of course the problem of jurisdiction. BP129, when
regular administration or settlement proceedings commenced, the court that has j
urisdiction is either a RTC or an inferior court depending upon the gross value
of the estate. If the gross value of the estate does go beyond PhP400, 000 or Ph
P300, 000 as the case may be, the settlement court is an inferior court. But if
the value goes beyond PhP400, 000 or PhP300, 000 as the case may be, the settlem
ent court is a RTC.
The underlying principle in regular settlement proceeding is that there sho
uld be only one court to settle the estate of a deceased person. We cannot have
more than one court in charge of the settlement of the estate. Otherwise, there
is a possibility of these courts issuing conflicting decisions and orders. In or
der to avoid this possibility, the rules have laid down the principle that the c
ourt which first takes cognizance of a settlement proceeding will be the only co
urt that will handle this proceeding to the exclusion of all other courts. Usual
ly in special proceeding, the heirs go to court for this purpose of settlement b
ecause the estate is huge, there is a lot of money and properties involved. The
natural instinct of any living person who is wealthy is to have as many families
as possible so that wealthy persons may have a family in Davao, another family
in Cebu and another family in manila. When that person dies, the problem is wher
e to file the settlement proceedings. Is it Cebu, or Davao or Manila? The princi
ple is very clear. It is the place where the decedent last resided. And because
he has families in all these three cities, he can be considered as having reside
d in any of these cities. So, the rule says, the court which first takes cogniza
nce will have control over the settlement proceedings to the exclusion of other
courts. So it is not unusual, after a rich person has died, for a mistress to fi
le settlement proceedings in Davao, and the legitimate spouse to file another se
ttlement proceeding in Manila. These two courts cannot have concurrent jurisdict
ion. One of them has to give way to the other for the purpose of the settlement
of the estate. The principle again is that the court which first takes cognizanc
e will do so to the exclusion of other courts.
 A settlement court, whether the proceeding is testate or intestate, is a co
urt that acts with a very limited jurisdiction. Its jurisdiction is only to [1]
liquidate the estate, [2] decide the claims against the estate, [3] decide who t
he heirs are and, thereafter, [4] distribute the estate. So, if there is any que
stion concerning ownership of a piece of land owned by the decedent, the settlem
ent court has NO authority to rule on this issue of ownership. Another proceedin
g should be filed before a regular court, separate and distinct from the settlem
ent proceeding. So, settlement courts have limited jurisdiction. They cannot adj
udicate; they cannot resolve questions of ownership involving properties of the
decedent if these properties are claimed by strangers. An independent action mus
t be filed for the purpose of adjudicating this controversy.
It is also settled that if a person dies with a will, it is not necessary t
o commence settlement proceedings to file a petition for the allowance of the wi
ll. If a person dies and he has left a will, the person in custody of that will
can simply go to a court, RTC or an inferior court as the case may be, surrender
the will to the court and the act of surrendering that will to the court alread
y commences settlement proceedings. So there is no absolute necessity for the fi
ling of a petition for the allowance of the will. But generally in settlement pr
oceeding, the petition prepared by a lawyer will be accompanied by the petition
for the probate of a will or petition for the issuance of letters of administrat
ion as the case may be. The petition for the allowance of the will or the petiti
on for the issuance of letters of administration should embody the legatees or t
he devisees, the last residence of the decedent. These are the jurisdictional fa
cts which should be embodied therein.
You will also notice that a petition for probate of a will or a petition fo
r the issuance of letters of administration only has a petitioner in the faction
of the proceeding. There are no respondents mentioned. That is why a settlement
is a classical example of a proceeding in rem. There is no petitioner but there
are no respondents identified in the petition. How does the court then acquire
jurisdiction over the heirs, over the persons interested in the estate of this d
eceased? Once a petition for issuance of letters of administration is filed with
the court, the court is compelled to issue an order setting the matter of heari
ng. It s either for the issuance of letters of administration or for the probate o
f the will. This order will be published in a newspaper of general circulation o
nce a week for 3 consecutive weeks. It is this act of publication which will con
fer jurisdiction upon the court. In addition to the publication of this notice o
f hearing, the court is required to serve by personal service or by registered m
ail notices to the heirs, legatee and devisees identified in the petition. This
is a mandatory requirement in addition to the publication of the notice of heari
ng. If there is no notice given personally or by mail to the heirs identified or
named in the petition, then, the court will not acquire jurisdiction over the p
roceeding. This is to emphasize that a settlement proceeding is in rem and it is
necessary for the court to comply strictly with the procedure for publication o
r for the giving of notice to these individual heirs. But remember what is publi
shed is the notice of hearing. It is the order of the court after the petition h
as been filed or after a will has been submitted to the court.
If there is a will left by the testator, then the hearing will first be con
centrated on the extrinsic validity of the will that is, the court will have to
make a finding as to whether or not the formal requirements of the will embodied
in the Civil Code have been satisfied. And in the matter of presenting evidence
for the probate of a will, there are certain evidentiary rules which depart fro
m the rules on evidence that you have studied. For instance, the rules require t
hat for the probate of contested will, the petitioner must present all the subsc
ribing witnesses to the will and also the notary public, if they are still alive
and if they are still competent to testify. So the petitioner cannot choose the
witnesses he should present in order to prove the extrinsic validity of the wil
l. He must present the subscribing witnesses to the will and you are very famili
ar with the Civil Code provision that in a will, there must be at least three su
bscribing witness. One of the problems that will therefore be faced by the petit
ioner for the probate of a will is the possibility that these subscribing witnes
s will tell the court that they did not see the testator institute the will or t
hat they did not sign the will in the presence of one another, which are require
ments in the Civil Code. So if the petitioner presents subscribing witness #1, t
he petitioner has in mind that this subscribing witness will tell the court that
he saw the testator sign the will, that the testator signed the will in his pre
sence and that the will was signed in the presence of the other witnesses. In so
me instances, a subscribing witness will tell the court, I did not see the testat
or sign the will or if the testator signed the will I was not present or the other w
itnesses signed the will in my absence. The petitioner will then be faced with a
serious problem because under the rules on evidence, a party cannot impeach his
own witness that is, the party producing a witness will be bound by the testimon
y of this witness that he has produced. That is a general principle in evidence.
In this situation, can the petitioner present contradictory evidence? By way of
exception to that evidentiary rule which says that a party cannot impeach his o
wn witness. In the probate of a will, a petitioner is free to impeach a subscrib
ing witness. Therefore, the petitioner is not bound by the testimony of these su
bscribing witnesses. Even if the subscribing witnesses will later on tell the co
urt that the will was not signed in their presence, that the signature of the te
stator is not genuine, the petitioner is free to present other witnesses to cont
radict the subscribing witnesses.
What is the reason for allowing the petitioner to impeach the subscribing w
itnesses or to contradict them? In probate proceedings, the petitioner really ha
s no choice at all in presenting the subscribing witnesses. These witnesses are,
in truth, not the witnesses of the petitioner. They are witnesses to be present
ed in compliance with the Rules of Court.
You should also be familiar with the last rule in special proceedings that
is, the rule on appeals in special proceedings. If you will notice there are sev
eral orders or decisions in the last rule which are declared to be applicable an
d most of these rules enumerated in the last pertain to settlement proceedings.
So, we will appreciate that in settlement proceedings. This is one instance wher
e several appeals could be held in one and the same case. Let us say that the co
urt issues an order admitting the will to probate. Admission to probate simply m
eans that the will is extrinsically valid that is, the formal requirements in th
e Civil Code have been satisfied by the testator and the subscribing witnesses.
Probate of a will has nothing to do with the intrinsic validity of a will. It ha
s nothing to do with the contents of the will. So even if a will is duly admitte
d to probate, it does not mean to say that the contents of the will are valid by
themselves alone. They may not be valid. If there is no will submitted to the c
ourt, then the petition is simply called a petition for the issuance of letters
of administration. Meaning to say that the proceedings are intestate.
The court, after admitting a will to probate or if there is no will, after
the hearing that is published has taken place, the court will either appoint an
executor or an administrator. The executor or administrator appointed by the cou
rt is a neutral party. He does not represent the heirs. The executor or administ
rator is an officer of the court. And the requirement is that this executor or a
dministrator must file a bond, in addition to the other duties which are embodie
d in the rules. There is an order of preference when it comes to appointment of
an administrator. But there is no preference when it comes to the appointment of
an executor, for the simple reason that an executor is a person nominated in th
e will by the testator himself. But when it comes to the appointment of an admin
istrator, there is an order of preference: the surviving spouse, the next of kin
, the person chosen by the surviving spouse or the next of kin, or the person du
ly appointed by the court, if the surviving spouse or the next of kin refuses to
accept the trust.
In all proceedings, where there is an element of trust that is involved in
the appointment of these officers like the administrator, executor, guardian or
a trustee, the common obligation that the rules impose upon them aside from the
filing of the bond is that they must a true and complete inventory. They must su
bmit an accounting within a period of one [1] year and in such other time as the
court will require. And they must obey at all times the orders issued by the co
urt, whether it is a settlement court or a guardianship court or a trusteeship c
ourt.
When the court appoints an executor or administrator, the appointment is a
final order. Since it is a final order, that order is appealable. In other words
, an heir or any person interested in the estate can always challenge the propri
ety of an order appointing an executor or administrator. And if that order is ch
allenged, the executor or administrator cannot perform the duties and rights of
his office right away. He cannot be considered as an executor or administrator r
ight away. So if the appointment of the executor or administrator is challenged,
there will be a situation where nobody will be taking care of the properties of
the estate while the appeal is going on. Now, who will take care of the propert
ies? According to the rules, the court can now appoint a special administrator.
The appointment of a special administrator is not appealable. In other words, on
ce the court appoints a special administrator, this special administrator can im
mediately take his oath of office. In certain cases, the executor or administrat
or appointed by the court whose appointment has been challenged by an heir or an
y interested person is appointed subsequently as a special administrator of the
estate. For instance, if the administrator named by the court is Juan dela Cruz
and his appointment as administrator is challenged, the court invariably appoint
s Juan dela Cruz as special administrator. Is that a valid order on the part of
the court? The answer is YES. Even if there is challenge to the appointment of a
n executor or administrator, the court can still name the same person whose appo
intment has been challenged as a special administrator of the estate. For instan
ce, if the administrator named by the court is Juan dela Cruz and his appointmen
t as administrator is challenged, the court invariably appoints Juan dela Cruz a
s special administrator. Is that a valid order on the part of the court? Yes, ev
en if there is a challenge to the appointment of an executor or administrator, t
he court can still name the same person whose appointment has been challenged as
a special administrator of the estate. There is conceivably no harm in appointi
ng the same person as the special administrator because there is a vast differen
ce between the powers and duties of a regular administrator and a special admini
strator. A special administrator cannot pay obligations. All that he does is to
protect the estate. He can only be a caretaker of the estate until a regular adm
inistrator or executor is appointed by the court.
Let us say that the appointment of the administrator is not challenged. So
he now takes his oath of office, he submits a bond and then he submits an invent
ory of all the properties of the estate in his possession and which has come to
his knowledge. Then he will also give an appraisal of the value of theses proper
ties. What will the court do after the administrator has taken his oath of offic
e? The court will now issue another order fixing the date for the enforcement of
the statute of non-claims. The court will issue an order directing money claima
nts against the estates should file their claims within a period of not less tha
n 5 months or more than 12 months from the date of first publication within whic
h to submit their respective money claims. Otherwise, these money claims are bar
red. So they will no longer be enforceable against the estate of the deceased pe
rson. In relation to this money claims, we have to refer to the situation that i
s contemplated in rule 3 of civil actions and also rule 39 when it comes to exec
ution where the defendant has died and on evidentiary rule of pertaining to the
admissibility of evidence in cases where a person has died, in rule 3 we all kno
w that if the defendant dies during the pendency of a case, that action will not
be dismissed by reason of the death of the defendant. For instance, if there a
claim for the recovery of an unpaid loan in the sum of 1M and the defendant dies
while the case is pending, the case will not be dismissed. What happens is that
the counsel for the deceased defendant will notify the court that his client ha
s died and he will submit to the court the names of the heirs who could act as s
ubstitute defendant. If none of the heirs is willing to act as substitute defend
ant, then the remedy of the plaintiff-creditor is to procure the appointment of
an executor or an administrator of the estate. Meaning to say that nobody is wil
ling to act as substitute defendant for the deceased defendant, it is now the bu
rden of the creditor to file settlement proceedings. This will be a special proc
eeding for the settlement of the estate of the deceased debtor.
Now the 1st question that will arise is does a creditor have a personality
to commerce settlement proceedings of the estate of his deceased debtor? Yes, an
y heir or any person interested in the estate can commerce the settlement procee
dings and the term interested person includes the creditor of the decedent.
Once an executor or administrator is appointed by the settlement court, the
executor or administrator will now be the substitute defendant. The executor or
administrator cannot refuse to act as a substitute defendant because that is on
e of his duties as executor or administrator, to represent the estate in cases t
hat are pending in court.
You will know that this case for the recovery of an unpaid loan will not be
dismissed. In fact it will be tried by the court until the judgment is fin
ally entered. But let us say that the trial court eventually renders a decision
in favor of the creditor. So the court tells the debtor, the estate of the defen
dant, to pay the obligation and the judgment is entered. Can the creditor now en
force the judgment by asking for the issuance of a writ of execution? NO, even i
f the creditor eventually wins the case, he cannot enforce payment of the award
through rule 39 that is the execution of judgment. In fact, if the debtor has di
ed, there is no guaranty that the creditor will eventually recover the award. So
even if the creditor has won the case, he cannot resort to rule 39 for the exec
ution of judgment and the only thing that is left for him to do is to go to the
settlement court and submit the decision of the trial court that has been entere
d / that has become final and executory. The payment of the claim supported by a
final and executory judgment will take place after the expiration of this statu
te of non-claims. In other words, a claim that is supported by a final and execu
tory judgment will be treated just like any other claim. It does not enjoy any p
reference insofar as the settlement court is concerned. But there is another sit
uation contemplated in rule 39, that is when the defendant has died, in rule 39,
I think in section 7, in an award for money rendered by a court, if the defenda
nt dies after the judgment has been entered and after properties have been levie
d upon, the sale of the properties levied upon can continue even if the defendan
t has died in the meantime. So this is a very unusual situation. The defendant h
as died, there is a judgment against him and there is already a levy on properti
es of the deceased defendant. The levy will continue and the properties levied u
pon can be sold at public auction. This should be treated as an exception to the
rule that money claims supported by a judgment cannot be enforced against the e
xecutor or administrator under the provisions of rule 39.
Going back to the statute of non-claims. The claims referred to in the stat
ute are pure money claims arising from a contract, express or implied. In other
words, these claims do not include claims for the recovery of personal or real p
roperty. They do not include claims for damages arising from tort. In other word
s, an action may be commenced against an executor or administrator for recovery
of title (accion reinvindicatoria/replevin). They could be commenced against an
executor or administrator. But an action to recover an unpaid loan cannot be ins
tituted against an executor or administrator. The remedy o f the money claimant
is simply to file a claim before the settlement court. In one case where the set
tlement court was a RTC, the claimant submitted a claim for the recovery of an u
npaid load of P200,000. What the administrator did was to ask the court to dismi
ss the money claim because the amount was not within the jurisdiction of RTC, gi
ven the provisions of BP129. The court said, the conduct of the administrator wa
s not well taken. All money claims submitted to the settlement court must be ent
ertained by the settlement court regardless of the amount involved. So even if t
he amount of the claim is only P200,000 as long as it is a money claim, the RTC
would have jurisdiction to entertain the money claim. So we do not apply the pro
visions of BP129 when it comes to the determination of whether or not a settleme
nt court has jurisdiction over certain money claims. Even if the money claim is
below the jurisdictional amount given to a RTC in BP129, the settlement court st
ill has jurisdiction to entertain the money claim.
A money claim before the settlement court is not commenced with the filing
of a complaint. In other words, a money claim does not envision a situation wher
e there is a complaint filed by the creditor against the executor or administrat
or. There is no complaint / pleadings filed. All that the claimant is required t
o submit to the court is an affidavit saying that he has a claim against the est
ate and in that affidavit he will annex the supporting papers. So this is not an
independent action for the recovery of the claim. It is just in the form of an
affidavit. Because this is not a form of an action as contemplated in civil acti
ons, the executor or administrator may or may not file an answer. The executor m
ay not contest the claim. Once a claim is submitted to a settlement court, the e
xecutor is given the discretion whether or not in contest the claim. So if the a
dministrator feels that the claim is genuine, then all that he needs to do is to
tell the court that the claim is genuine. But if he feels that the claim is not
genuine, then the administrator should contest the claim. If there is a contest
of that claim, then there will be a trial to be conducted by the settlement cou
rt to determine whether or not that claim submitted by the creditor is valid. In
the trial of contested money claims, the court is not required to sit as the ju
dge during the trial. This is one instance where the court is given the discreti
on to appoint a commissioner for the hearing contested claims. Once a claim is a
djudicated by the court, that adjudication again becomes a final order. Under th
e last rule, that is another appealable order. So you will appreciate that if in
a settlement there are 20 money claimants and the court has already adjudicated
on these money claims and the administrator or the claimant feels that he has b
een aggrieved, there can always be an appeal from this order concerning conteste
d claims. So it is very possible that there will be 20 appeals on this contested
claim during the settlement proceedings. And while there are appeals going on t
his contested claims, it is not possible for the administrator or executor to di
stribute the estate among the heirs because the principal purpose of settlement
is always the liquidation of the estate payment first of the creditors ahead of
the heirs of the decedent. Because the executor or administrator is given the di
scretion to contest or not to contest a claim, there is a strong possibility tha
t the administrator might collude with the claimant. A claim is filed and becaus
e of prior understanding between the administrator and the claimant, the adminis
trator will simply tell the court, this claim is genuine and should be approved
by the court. Do the heirs have any recourse at all? YES, if the administrator d
ecides not to contest a particular claim, the heirs could submit their own conte
st to this claim. This is a remedy to check the possibility that an executor or
administrator may have abused the authority given to him by the rules.
In some wills, the testator usually tells the heirs that he has left some i
ndebtedness to some particular individuals or corporations. So the testator coul
d state in the will, I owe so much to PNB / to this particular person. So in the
will itself, there could be an acknowledgement by the testator that he has left
some indebtedness. Should the creditors whose accounts are recognized in the wi
ll still submit their claim within the statute of non-claims? YES, the recogniti
on by the testator existence and validity of certain accounts will not be an exc
use for these creditors not to submit their claims within the period provided by
law. In the ex. PNB should still submit its claim within the statute of non-cla
im.
In one case, the validity of this provision of the Rules of Court, the stat
ute of non-claim, was challenged. The argument ran like this: Prescription is ne
ver procedural. Prescription is always a matter of substantive law that is why i
n the Civil Code there is a particular chapter on prescription of actions and no
w we meet a situation where the Rules of Court embodies a provision for prescrip
tion of actions, that is the statute on non-claims, within a period of not less
than 6 or more than 12 months from the date of publication. So that according to
t his particular creditor, my claim prescribes in 10 years because it is supporte
d by a written document promissory note but under the Rules of Court, I am requi
red to submit my claim within a period of not more than 12 months otherwise my c
laim is barred. So there is obviously conflict between the provisions of the Civ
il Code on prescription and provisions of the Rules of Court on non-claim; and t
he Civil Code should prevail because prescription is a matter of substantive law
and not a matter of procedure. The Supreme Court said that it is true that presc
ription is a matter of substantive law but the provisions of the Rules of Court
pertaining to the statute of non-claim is substantive because it is just a repro
duction of an old provision in the Code of Civil Procedure. The Code of Civil Pr
ocedure was substantive law that is before the Rules of Court took effect. So th
is is not really a creation of the Supreme Court by itself alone. It is just a r
eproduction of an old substantive law which has not yet been repealed by the Civ
il Code. So the Supreme Court said there is really no conflict between the Civil
Code and this provision, and the provision of the Rules of Court should be take
n as an exception to the rules on prescription contained in the Civil Code. So t
he statute of non-claims is substantive but it does not mean to say that it is a
creation of the Supreme Court.
There are creditors who are not covered by the provisions of the statute on
non-claims and they are expressly found in the rules. These are creditors who h
old collateral or a mortgage over properties of the decedent. We are referring h
ere to mortgages contracted by the decedent during his lifetime. The rule is dif
ferent with respect to mortgages that are contracted by the executor or administ
rator with the permission of the court. The mortgages referred to in Rule 86 are
mortgages that were contracted by the decedent during his lifetime and which co
ntinue to encumber his properties after his death. So if the decedent during his
lifetime obtained a loan from PNB secured by a mortgage over his properties, un
der the rules, PNB need not file a claim against the estate within the period pr
ovided for in the statute of non-claim. PNB is given 3 options under the rules.
PNB can abandon the mortgage and consider its loan as an unsecured loan. In whic
h case, PNB should file a claim against the state, or the PNB can simply rely on
its mortgage foreclose the mortgage and if there is any deficiency, PNB can fil
e a claim with respect to the deficiency. And the 3rd option is that PNB will ju
st rely absolutely on the collateral that it holds, in which case it does not ha
ve to participate in the settlement proceedings. One of the questions raised is
the effect of the death of the decedent upon a mortgage contracted by him during
his lifetime in the event that in that deed of mortgage, there is a special pow
er of attorney given to the mortgage to foreclose the mortgage. Yesterday we had
the occasion to state that the mortgages can foreclose a mortgage extra-judicia
lly if he is so empowered in the deed of mortgage. So if the deed of mortgage co
ntains a provision saying that the mortgagee can extra-judicially foreclose the
mortgage, then that is a valid stipulation. That is in effect a contract of agen
cy where the mortgagor empowers the mortgagee to sell the property in the event
that the principal obligation is defaulted. In our situation now, the mortgagor
has died. So in some cases, the executor or administrator has raised this questi
on. In the Civil Code, one of the causes for the extinguishment of an agency is
the death of the principal or the agent. In a mortgage relationship, the mortgag
or will be the principal and the mortgagee is the agent. But if the mortgagor-pr
incipal dies, will it not extinguish the agency constituted in that mortgage? Ac
cording to the Supreme Court, if the decedent has died and in a contract of mort
gagee that is previously contracted, there is a special power of attorney that i
s given to the mortgagee to foreclose, that special power of attorney is not ext
inguished by death. That power of attorney continuously exists. The reason given
by the court is that the agency is that the agency in the form of authority giv
en to the mortgagee to foreclose extra-judicially is an agency that is coupled w
ith an interest. It is not affected/extinguished by the death of the principal.
It is only the agent who is given the prerogative of canceling the power of atto
rney. So if the mortgagee (ex. The PNB) decided to foreclose extra-judicially, n
otwithstanding the death of the mortgagor; it can do so by virtue of the power o
f attorney.
The statute of non-claims is the presentation before the settlement court o
f contingent claims against the estate. The rules are clear in saying that money
claims, whether they are contingent or absolute must be presented within the pe
riod otherwise they are barred. But since these claims are contingent, it means
to say that the liability of the estate is NOT certain. According to the rules e
ven if the claim is contingent, it could be approved by the court but the paymen
t of this claim will depend on whether this claim will later on become absolute
and certain. If this claim becomes certain later on, then the executor or admini
strator will have to retain a part of the estate for the payment of this conting
ent claim. If the executor is ordered by the court to distribute the estate notw
ithstanding the fact that this contingent has not matured or has not become abso
lute, then the distributes of the properties of the deceased could be held perso
nally liable up to the limit of their share in the estate in the payment of this
contingent claim. But what is important for the order of a contingent claim is
for this order to present the claim within the period fixed in Rule 86, within t
he period of the statute of non-claim.
It is the duty of the executor or administration after all these claims has
been filed, to raise money for the payment of the obligations. And in order rai
se money to liquidate these accounts, the executor or administrator could ask fr
om the court for authority to sell or encumber properties of the estate. The exe
cutor under the rules can sell personal properties. With respect to real propert
ies, he can sell or encumber or mortgage real properties but court decisions are
to the effect that these provisions should not be interpreted strictly. The set
tlement court has the absolute discretion to authorize the sale or mortgage of b
oth real and personal properties as long as the purpose for the conveyance or di
sposition of these properties is to raise money to pay off the obligations of th
e estate.
Assuming that the obligations of the estate have been paid and there are as
sets that are left, the remaining assets will have to be distributed among the h
eirs of the estate. In the distribution of the shares of the heirs, the court wi
ll have the authority to determine who the heirs are that is part of the settlem
ent proceeding. So the determination of who the heirs are is within the competen
ce of the settlement court. The determination of an heir by the settlement court
will also constitute a final order and therefore it is also appealable.
In the distribution of the shares of the heirs, the usual procedure that is
followed by the court is for the court to ask the heirs to enter voluntarily in
to a project of partition. Project of partition is submitted to the court and is
approved by the court and the distribution is made according to that project of
partition. But if the heirs could not agree among themselves as to the manner a
s to how the estate will be distributed, the settlement court again has enough d
iscretion. It is competent to determine the manner by which the shares are going
to be distributed.
If all the heirs have gotten their respective distributive shares then the
court will issue what is known as an order of closure. The order of closure mark
s the end of the settlement proceedings.
In some cases, however, after the order of closure has been entered, some p
ersons eventually appear claiming that they are heirs of the estate and they hav
e been deprived of their respective shares. Or in some instances, properties are
discovered which belong to the estate and which were not included in the invent
ory and therefore these properties were not distributed among the heirs. But tak
e not that these incidents arise after the order of closure has been entered, it
has become final and executory. Do we apply the principle of res judicata, that
it is no longer possible to alter the order of closure? The remedy allowed by t
he rules in these instances is for the heir or the interested party to move for
the reopening of the case. Reopening of a settlement proceeding is available eve
n if the order of closure (order terminating the case) has been entered. Even if
it has become final and executory. Reopening of the settlement proceeding is no
t unique to settlement proceeding. It is not really a new remedy. Reopening of a
case is even available in criminal cases. If you go through your criminal proce
dure, reopening of a criminal case is allowed. The only condition is that the
reopening must be done before the judgment of conviction becomes final. In a c
ivil case, reopening of a case is also a recognized remedy that the only differe
nce between the reopening in settlement proceeding and the reopening in a civil
case is that in a civil case, the reopening as a remedy is available only after
trial has ended and the court renders judgment. So, in a settlement proceeding,
reopening could take place even after the proceedings have been terminated, eve
n after the closure order issued by the court has been entered.
 What is the reason why the court allows the settlement proceeding to be reo
pened even after the order of closure has become final and executory? The reaso
n proceeds from our principle given awhile ago that there should only be one cou
rt that should handle the settlement proceeding. If we allow court to entertain
, let us say, petition to allow the closure order that will give another court o
pportunity to overrule or change orders that have been previously issued by the
settlement court. So we stick to this principle that only one court should be c
oncerned with the settlement proceedings and even after this court has already t
erminated the proceeding. Even after its orders have been entered, it is still g
iven authority to reopen the case so that the questions concerning distribution
of shares, properties that may have been discovered after termination may be set
tled in one and the same proceeding.
Before the order of closure is issued by the court, usually, the administra
tor will submit a final accounting. And in this final accounting, the administr
ator can seek the approval of the court, for the payment of administration expen
ses. Administration expenses could include fees for the lawyer retained by the
executor. The Supreme Court said that if the executor himself is a lawyer, he w
ill not be allowed to charge attorney s fees for his services rendered as a lawyer
and as an administrator or executor. But if the executor retains, the services
of the lawyers to assist him in the settlement proceeding, the fees paid to thi
s lawyer will be considered as a part of administration expenses. The same is t
rue with respect to other professionals, like an accountant. The executor may n
eed the services of an accountant in the preparation of a final accounting. The
fees for this accountant will be considered as expenses of administration.
The last part of settlement proceedings pertain to escheat proceedings, whi
ch is not really an integral part of settlement of estate of deceased persons. E
scheat proceedings could be independent of a settlement proceeding. I suggest th
at you also read escheat because last year the examiner gave questions concernin
g escheat and reversion proceedings. Escheat may or may not be a part of the set
tlement proceeding. The rules say that if a person dies intestate and there are
no heirs of the estate of the deceased person, the Solicitor-General could file
a petition for the escheat of the properties of the decedent. Meaning to say tha
t the properties of the decedent will go to the Republic of the Philippines. Is
this not a manifestation of greed on the part of the Republic of the Philippines
? Why should the Republic of the Philippines be concerned with acquiring propert
ies of a deceased person? This is not really a manifestation of greed on the par
t of the Republic of the Philippines. This is just an implementation of the Civi
l Code provision that the Republic of the Philippines is always an heir of any d
eceased person who dies without a will and without a heir. It is embodied in the
Civil Code that the State is an heir of any deceased person.
It does not mean to say however that escheat could take place only in insta
nces where a person dies without a will and without heirs. Even if there is a wi
ll but that will has not been admitted to probate because defect in its form, th
e law will consider that the deceased has died intestate. If there are no heirs,
then the same proceeding could be resorted to by the Solicitor General.
Will there be escheat proceedings even if the owner of the property has not
died? Yes, in some special laws like the Unclaimed Balances Act, escheat procee
dings could prosper as long as the conditions imposed by this law are met. The U
nclaimed Balances Act refers to a situation where bank accounts become dormant f
or a period of 10 years. These bank accounts, if they become dormant after a per
iod of 10 years, that is there is no movement at all (no deposit, no withdrawal)
, the Unclaimed Balances Law says that the government may confiscate/escheat the
se bank accounts. The proceeding to be followed by the State is for the Solicito
r General to file escheat proceedings so that these funds which have become dorm
ant may be turned over to the Republic of the Philippines.
In one case which assails the constitutionality of the Unclaimed Balances L
aw, the Supreme Court ruled that the Unclaimed Balances Law is founded on the po
lice power of the state. In other words, it is not an expropriation proceeding.
It is inherent as part of the police power of the state to take over bank deposi
ts which have become dormant for at least 10 years.
 There could be other escheat or reversion proceedings which are recognized
in the Constitution or in other statutes. Acquisition of property by aliens if p
rohibited by law or Constitution could be reverted to the State by virtue of thi
s escheat or reversion proceeding.
When it comes to escheat of properties of deceased persons, there is also a
protection given by law to the heirs who may have deprived of their share in th
e estate. If it turn out that the deceased may have left some heirs who were not
aware of the death and therefore were not able to insist that they be given the
share in the intestate estate, the law gives them a period of 5 years within wh
ich to make a claim for the return of the properties that have been escheated in
favor of the government.
You will also notice that escheat as contemplated in the rules is a proceed
ing in rem. There is a requirement of publication just like in settlement procee
dings. But what is peculiar is that even if after the judgment on escheat has be
en entered, an interested person or an heir can ask for the reopening or the ret
urn of the properties of the estate within a period of 5 years, form the entry o
f that order or decision of escheat.
Guardianship. The next special proceeding is guardianship. Well, in guardia
nship, you should always bear in mind that a guardianship proceeding is now the
exclusive term of family courts. We now have family courts and under the law cre
ating family courts, the family courts exercise exclusive and original jurisdict
ion over petitions for guardianship. In fact all family related cases are exclus
ively cognizable by family courts in the exercise of their original jurisdiction
. The guardianship contemplated in special proceedings is general guardianship,
which could be guardianship over the person or guardianship over properties, tha
t s over the estate or both guardianship over the person of the ward and the prope
rties of the ward. In other words, the court can appoint a guardian over the per
son of a ward and appoint another guardian over the properties of the ward. So t
here could be 2 guardians appointed by the same guardianship court. Can this sam
e order be issued in a settlement proceeding, meaning to say can the court appoi
nt administrators of the same estate? Yes, there could be more than one executor
or administrator in a settlement proceeding. These matters are left to the disc
retion of the settlement court.
So the guardianship that is not covered by this proceeding as a special pro
ceeding is the appointment of what we call guardian ad litem. The appointment of
the guardian ad litem is not covered by this proceeding on general guardianship
. A guardian ad litem is appointed by a court before which any action is pending
, where on of the parties is a minor. Thus, if a complaint for recovery of prope
rty (accion reinvindicatoria) is filed by the plaintiff against a defendant who
is a minor and this case is pending before an inferior court because the value o
f the property does not go beyond P20, 000 or P50, 000 as the case may be. This
inferior court although it is not a family court is empowered to appoint guardia
n ad litem. The appointment of a guardian that is exclusively given to a family
court is the appointment of a general guardian not the appointment of a guardian
ad litem, which is inherent in any court before which a civil action is pending
as long as one of the parties is a minor who needs a guardian ad litem.
Just like the executor or administrator, the guardian is an officer of the
court. He also files a bond and then he is required to submit an inventory of th
e properties of the ward, an accounting of the properties under his care and man
agement. Just like an executor or administrator, the guardian can also sell; dis
pose of mortgage the properties of the ward as long as these acts are done alway
s with the approval of the guardianship court. But you will notice that when it
comes to sale or conveyance by a guardian, there is a marked difference between
an authority given by a settlement court to an administrator who is authorized t
o sell or mortgage properties of the estate. When an executor or administrator i
s given authority to sell or mortgage properties of the estate, there is no time
limit given for the sale or encumbrance of these properties. So the sale or mor
tgage of the property could take place years after the authorization is given by
the settlement court. In the case of the guardians, if a guardian is given auth
ority to sell a property of the ward that is, with prior approval of the court,
that authority will become ineffective after a period of one year. So that if au
thority given to the guardian to sell a property of the ward, he must do so with
in a period of one year, otherwise his authority ceases to be effective. He must
ask the court for the renewal of that authority, unlike in the case of executor
or administrator.
The same principles that govern an executor or administrator also govern a
guardian, insofar as the ward and the properties of the ward are concerned. Thei
r actuations should always be with prior approval of the court. So if the execut
or or administrator sells the property of the estate without prior authorization
from the court, the same is null and void. If the guardian sells the property o
f the ward without prior authorization from the guardian court, the same will al
so be null and void.
Trust. A trust also occupies the same office as a guardian or as an executo
r or administrator. A trustee occupies a position of confidence. The substantive
provisions on trust, of course, are contained in the Civil Code. So what we fin
d in the Rules of Court are the procedural principles governing the enforcement
of a trust. In substantive law, a trust could be a living trust, or it could be
a testamentary trust. A trust that is envisioned in the Rules of Court is a test
amentary trust. It could also be a living trust or a contractual trust. The diff
erence between an executor or administrator of an estate and a guardian of a war
d from the trustee of a trust is that a trust acquires title to the property hel
d in trust. An executor or administrator does not get title to the property unde
r his administration. A guardian also does not get title to the property under h
is care but a trustee that is, of an express trust either in a living trust or t
estamentary, will acquire title to the property under his care. So insofar as th
ird persons are concerned, the trustee is the legal owner of the property held i
n trust. It is in this relationship where we meet the terms beneficial owner and
legal owner. The trustee holds legal title to the property held in trust while th
e beneficiary holds beneficial title to the property.
In testamentary trust, as contemplated in the Rules, the trust is created
in a will. After the settlement proceedings are finished and the property that
is given in trust is not delivered to a creditor for the payment of the indebted
ness of the decedent, then it is the duty of the executor or administrator to fo
llow the provisions of the will creating the trust. So, it is the duty of execut
or or administrator to ask the settlement court to go ahead with the appointment
of a trustee for this testamentary trust. In that sense, a testamentary trust c
ould be considered as a continuation of the settlement proceeding. But the prope
rty will now be transferred to the name of the trustee. Unlike in the case of an
executor or administrator, a trust could also be contractual in character and t
he appointment of the trustee does not need intervention of the court. The appoi
ntment of the trustee could be had in the deed of trust. A good example of contr
actual trust where a trustee is appointed without intervention by the court is t
he trust that exists in the cemeteries [Loyola Memorial Park, Manila Memorial Pa
rk]. This is a contractual trust. There is a trustee named in the deed of trust
who takes care of the cemetery, the private cemetery. The funds are given by the
buyers of the lot. This is an example of a trust contractual in character where
the appointment of the trustee is not though court intervention. In other words
, the appointment of a trustee could be had through court intervention. It could
be had purely by reason of an agreement between the trustor and the trustee, an
d in some instances, by the beneficiary.
Adoption and Custody of Minors. With respect to this proceeding, adoption a
nd custody of minors, if you are relying solely on what the Rules of Court provi
de, you could be in trouble because most of the provisions of the Rules of Court
on adoption and custody of minors are now embodied in two laws on adoption and
these laws are the Domestic Adoption Decree and the Inter-country Adoption Act.
So I suggest that don t rely on the contents of the Rules of Court. You should rel
y more on the laws that we have just mentioned. As the title of the proceeding i
n the case, this case generally covers only minors. It is in exceptional circums
tances that there could be an adoption of a person who is already of age. And th
en another change that was introduced by these statutes is that there is a provi
sional remedy now recognized in relation to this proceeding. This provisional re
medy is temporary custody of children. So a petition there could be filed and in
that petition there could be a prayer for temporary custody of children as a pr
ovisional remedy.
There could be some confusion between a petition for guardianship and petit
ion for adoption. There are 3 marked difference between these two. The first is
with regard to the venue of these petitions. The venue for a petition for guardi
anship is the residence of the minor or the incompetent while in adoption, the v
enue is the place of residence of the adopter (the petitioner in a petition for
adoption). With respect to the requirements for publication in guardianship ther
e is no such requirement for publication. Only a requirement for the giving of n
otice to the parties. But in adoption, there is a requirement for publication in
order to enable the court to acquire jurisdiction. And the last important disti
nction between these two proceedings is that in guardianship the party sought to
be placed in guardianship is not necessarily a minor. He could be a person of a
ge as long as he is incompetent. But in adoption generally, the proceedings cove
r only a minor. It is only in the exceptional situations where our law allows a
person who is already of age to be adopted.
Since there is a requirement for publication which must be strictly complie
d with according to the court, in the sense that in the order to be published or
at least in the caption of the case, the complete name of the person to be adop
ted must be specified, the complete and correct name of the person sought to be
adopted. That is the name contained in the Office of Civil Registrar. Otherwise,
the court will not acquire over the petition for adoption.
In the past, laws of adoption were interpreted to mean that these statutes
were for the benefit of the adopter that is in order to provide the adopter with
a sense of fulfillment if he is going to be given an adopted child. But if you
are going to read the Domestic Adoption Act and Inter-country Adoption Act, the
trend seems to be that every interpretation of these laws should favor the adopt
ed, the person sought to be adopted. So the Supreme Court has given the rule tha
t procedural laws should not be strictly applied and interpreted as long as the
interest of the adopted are well protected. So that is now the policy of the sta
te concerning adoption proceeding.
Do we allow adoption that is non-judicial in character that is we allow ado
ption even if there are no court proceedings at all? Yes, under the Inter-countr
y Adoption Act, adoption may be authorized / decreed by the court. So adoption m
ay be judicial or it may be non-judicial. If it is judicial, the court that has
exclusive original jurisdiction will of course be the family related case. The c
ourt that has given the decree of adoption is also the court that has authority
to revoke or resend that decree of adoption is also the court that has authority
to revoke or resend that decree. In some cases, the proceedings for the revocat
ion of adoption are considered as a continuation of the adoption case. But in ot
her cases, the Supreme Court said that there may be an independent petition for
the revocation of a decree of adoption. But this does not seem to be important a
nymore because the court, the family court, has the authority to revoke or set a
side a decree of adoption that has been previously given so I suggest again that
you read the provisions of the Inter-country Adoption Act and the Domestic Adop
tion Act because these laws contain both substantive and procedural rules that g
overn the flow of an adoption case. So I leave that to you.
Habeas Corpus. The more important special proceeding is of course habeas co
rpus, proceedings for hospitalization of insane persons. There is not much to re
ad except that you might be asked, are the proceedings for the hospitalization o
f insane persons irrelevant considering that an insane person is also covered by
guardianship? The definition of an incompetent in the Rules of Court covers the
person who is of unsound mind. So if a person is of unsound mind, should he not
be placed under guardianship? Why should he still be the subject of a proceedin
g for the hospitalization of an insane person? In seems that when the person of
unsound mind has properties, everybody will be interested in making him as a war
d. So guardianship proceeding will ensue. But if the insane person is the one wh
om we meet in the streets loitering around, nobody will be interested in placing
 him under guardianship. The person who has the burden of filing this petition w
ill be a government official the Secretary of Health for instance. So this proce
eding for the hospitalization of insane person is more for the protection of the
community so that the insane person will not be loitering around a locality. Bu
t if again the person of unsound mind is wealthy, you can be sure that there wil
l be a petition to place this insane person under guardianship. It will be diffe
rent from the proceeding for the hospitalization of an insane person.
In one class, in special proceedings as a course in law, this question was
propounded. In a petition for habeas corpus that is filed on behalf of the detai
nee, the detainee formally manifested before the court that he is not really und
er illegal detention. That, if there is any restraint upon him, it is voluntaril
y on his part which was not exactly accurate because he was really under unlawfu
l detention. The consequence of that manifestation is that the petition for habe
as corpus will be mooted; it will become academic because there is really no ill
egal detention or involuntary restraint. Now the question propounded next was, w
hat is the remedy of the petitioner who filed the petition for habeas corpus on
behalf of the detainee? The amusing answer given was the petitioner should insti
tute another petition for the hospitalization of an insane person, of course add
ressed to the detainee. That s a good answer, isn t it? Very amusing.
You should always bear in mind that the jurisdiction over these petitions i
s given to all courts in our system. The Supreme Court, the Court of Appeals, a
RTC, and even inferior courts have authority to hear petitions for habeas corpus
. In the case of inferior courts, they are given interlocutory jurisdiction unde
r BP 129, to hear a petition for habeas corpus. That is if there is a certificat
ion that all the judges of the RTC in that district are absent. Under BP129, an
inferior court has an exercise what is known as interlocutory jurisdiction over
a petition for habeas corpus.
Unlike in certiorari, prohibition or mandamus which is equally cognizable b
y the Supreme Court, the Court of Appeals and RTC, this concurrence in jurisdict
ion is limited by what we call as the principle of hierarchy of courts. Habeas c
orpus is also cognizable by all these courts the Supreme Court, the Court of App
eals and the RTC but we do not observe the principle of hierarchy of courts when
it comes to applications for writ of habeas corpus. The writ extends to all cas
es where the detention is illegal or there is unlawful restraint. But it is a se
ttled principle in habeas corpus that the illegality of the detention must be re
ckoned as of the date of the filing of the application or of the petition. Meani
ng to say that even if the detention is illegal at the start but if at the time
of the filing of the petition, the detention has become lawful, the petition for
habeas corpus will be denied. So the illegality of the detention must be reckon
ed as of the date of the filing of the petition. These incidents are usual. For
instance, immigration will detain an alien without any valid reason. The detenti
on is not lawful of course. Let us say that the alien is kept in custody for 3 m
onths. Then he consults a lawyer and the lawyer files a petition for writ of hab
eas corpus. But if at the time of the filing of the petition, there is already a
n order for the deportation of this alien. At the time of the filing of the peti
tion, the detention has become lawful. So that will justify the denial of applic
ation for habeas corpus. Also in criminal cases where the arrest in unlawful fro
m the very beginning. Even if the arrest is unlawful but at the time the petitio
n for habeas corpus is file there is already a warrant for his commitment, then
the petition for habeas corpus will be denied. It will not make sense anymore be
cause at the time of the filing of the petition, the detention is already lawful
.
As we said a while ago, if the detainee himself tells the court that he is
not being illegally detained, that he has voluntarily submitted himself to this
unlawful restraint that will render the petition moot and academic. That is the
general rule concerning habeas corpus.
If the detention is illegal at the time of the filing of petition but after
the filing the detainee is already released from custody that will also render
the petition moot and academic because the petition has already achieved the pur
pose of the filing of the petition.
 In habeas corpus cases, we should be able to distinguish the writ of habeas
corpus itself and what is called the preliminary citation. A preliminary citati
on is issued by the court when it does not appear manifest or clear in the appli
cation that the detention is illegal. So if there doubt arising from the content
s of the application whether the detention is unlawful or illegal, the court wil
l not issue right away a writ of habeas corpus. The court will simply issue what
is called as a preliminary citation. A preliminary citation is an order issued
by the court directing the respondent to show cause why the writ of habeas corpu
s will not be issued. So it is preliminary to the issuance of a writ of habeas c
orpus in the event that the petitioner is able to show that the detention is ill
egal.
I suppose that you are well read in relation to the substantive laws concer
ning habeas corpus like the constitution. So I suggest that you read once more t
he case of Villavicencio vs. Lukban which you must have read in Constitutional L
aw. And the case of Moncupa vs. Enrile. These two cases give us the basic princi
ples concerning habeas corpus not from a procedural point of view but from the s
ubstantive point of view. If you will recall in that case of Moncupa, after the
application for habeas corpus was filed, the soldiers in custody of the detainee
released him but under certain conditions. One of the conditions was that the d
etainee will not be allowed to transfer his residence without giving notice to t
he armed forces. That he will not be allowed heed interviews to the press. Accor
ding to the Supreme Court, that is part of restraint that is covered by habeas c
orpus. In other words, restraint purposes of habeas corpus do not only mean phys
ical restraint. It could also extend to psychological or moral restraint.
But on a procedural point of view, habeas corpus is described by court deci
sions as a proceeding that is similar to an in rem proceeding although the court
did not say that it is actually in rem. It is similar to an in rem proceeding.
The court could not consider habeas corpus as a genuine in rem action because in
an application for writ of habeas corpus, there is a petitioner and there is al
ways a respondent unlike in the other special proceedings that we have taken up
like settlement proceedings, adoption, guardianship proceedings. In all these pr
oceedings, there is only a petitioner and there is no particular respondent who
is impleaded. But in a petition for habeas corpus, there is a petitioner and the
re is a respondent. That is the justification why the Supreme Court could not sa
y directly a petition for habeas corpus is really an in rem proceeding. Besides
in petition for habeas corpus unlike in other special proceedings, there is no r
equirement for prior publication. It s just like a civil case where the plaintiff
sues the defendant and then the defendant is required to file an answer. In habe
as corpus proceedings, the respondent is required also to answer and this answer
is called in return in habeas corpus. If the return is made by the public offic
ial and in that return this is required to be under oath, which is required to b
e verified. He must explain to the court the reason for the detention; he must g
ive to the court copies of the documents authorizing the detention. If the publi
c officer complies with these requirements, his return is presumed to be an evid
ence of the legality of the detention. But if the return is made by a private in
dividual, the allegations contained in the return must be proven by this private
individual. In one case in the past, after a petition for habeas corpus was fil
ed in the court the respondents submitted their return to the court and in that
return the respondents told the court: we have already released the detainee and
therefore the petition has become moot and academic. What the representatives o
f the detainee did was to tell the court: it is not true that the detainee has b
een released found. So the issue was who has the burden to prove to the court th
at there was indeed a release of the detainee. The Supreme Court said that if th
e petitioners denied that the detainee has been released, that is contradictory
to what the respondents have submitted to the court, it is the duty / burden of
the respondents to prove that there has been an actual release. This will be sim
ilar to a situation where the defendant to prove the affirmative allegations in
the return.
If the court eventually issues the writ of habeas corpus, it does not mean
to say that the detainee will be released automatically. The respondent will be
given a chance to assail the validity of this order. And the remedy to challenge
a writ of habeas corpus issued by the court is to appeal from this order. And t
his is where there is a conflict of court decisions. What is the period for an a
ppeal in habeas corpus cases? If you are going to read and rely solely on BP 129
, the period for appeal in habeas corpus cases is placed at 48 hours. That is ex
pressly provided in BP 129. But in the law amending BP 129, it is also stated th
at in special proceedings and in civil actions which admit of multiple appeals,
the period to appeal shall be 30 days. And habeas corpus is a part of special pr
oceedings. So it seems that the period to appeal would really be 30 days if we r
ely solely on this provision saying that in civil actions where multiple appeals
is allowed and in special proceedings the period to appeal is 30 days. But in 1
case decided in 2000 by the Supreme Court (Tong Ching vs. Commissioner of Immig
ration), the Court laid down a principle that the period to appeal in habeas cor
pus proceedings is 15 days. So there is now confusion as to whether the period t
o appeal is 48 hours, or 15 days, or 30 days. So if ever this matter comes out i
n your bar examinations, I suggest that you give these conflict statements. This
is still an unsettled issue with respect to the period to appeal in habeas corp
us proceedings. But with the rest of special proceedings, we follow the provisio
n that in special proceedings as well as in civil actions which admit of multipl
e appeals, the period to appeal is 30 days. And the requirement of appeal is a n
otice of appeal and a record on appeal.
Change of Name. The next special proceeding is change of name under Rule 10
3, which should be taken up in relation with Rule 108 that is cancellation of en
tries in the office of the local civil registrar. The Supreme has already settle
d that the remedies provided in Rule 103 as well as in Rule 108 could be availed
of in one and the same proceeding. The only requirement is that the procedural
requirements in these two rules must be satisfied. Originally, before these deci
sions of the Supreme Court came out; change of name was a procedure availed by a
petitioner in order to cause a substantial change in his name. on the other han
d, Rule 108 was the recourse available for change of clerical errors, correction
of clerical errors or innocuous errors that are contained in the record of the
local civil registrar. So, it was evident then that the procedure in 103 could n
ot be summary. It was always adversarial in character and the procedure in 108 w
as summary in character. But then comes this decision of the Supreme Court which
said that even the proceedings in 108 could be adversarial in nature. It could
involve substantial changes in the name of a person. So the Supreme Court out wi
th this doctrine that when it comes to a change of name, both 103 and 108 could
be availed or in one and the same proceedings as long as all the requirements on
these 2 rules are met.
What is the name of a person that could be the subject of the special proce
eding for the change of name? in our country, it is allowed by our society for a
person to have many names. We have baptismal names. We have names duly recorded
in the office of the local civil registrar. For purposes of Rule 103, the name
that could be changed, that s judicially under Rule 103 is the name that is writte
n on the certificate of birth at the office of the local civil registrar. It doe
s not pertain to the name that is contained in the baptismal certificate. And in
our society also, we have adopted the Roman or Spanish style of giving a first
name and a surname. So, all of us here have a 1st name as well as a surname. The
Supreme Court has ruled that with respect to the 1st name or proper name, that
is almost subject to the discretion of our parents. So if your name is Juan - th
at is because that s the name given to you by your parents and your parents have a
bsolute choice this name. but when it comes to the surname, it is the law which
determines the surname that could be used by a person. So that he parents of a p
erson do not have the freedom to give any surname to their children. The law req
uires that the surname must be the surname of the legitimate father under our ci
vil law. So, in our system, a person has a first name and a surname. For purpose
s of Rule 103, a name that can be changed could either be the surname or the 1st
name but the change must always be with sufficient justification. A person who
desires to change his name cannot simply go to court and tell the court I want t
o change my name. He has to give a good justification why he wants his name to b
e changed. And the law is quite strict when it comes to the requirements to be f
ollowed for a petition for a change of name.
The 1st requirement is the in the petition itself, in the caption of the pe
tition and in the caption of the order to be published all the names must be cor
rectly written. So the name of the person is registered, the name that will be a
dopted in case the change is allowed and all the aliases should be embodied in t
he petition for change of name. They should also appear in the order which is go
ing to be published.
Petition for change of name is another proceeding in rem. The best evidence
that it is a proceeding in rem is that there is a requirement for publication.
And unless there is such a publication of the correct name and the name sought t
o be adopted and all the aliases, then the court will not acquire jurisdiction o
ver the petition. Although there is no respondent since it is a proceeding in re
m, the office of the Solicitor General should always be notified and it is pract
ice of the Solicitor General always to oppose any petition for the change of nam
e.
There are only a few reasons that have been allowed by the Supreme Court fo
r a person to change his name. One of these grounds is if the name is dishonorab
le, or if the name is hard to write or pronounce. But if the only reason given f
or the change of name is that it could subject the petitioner to derision or lau
ghter whenever he uses the name, according to the Supreme Court that may not be
enough justification for the change of name.
If you are going to compare Rule 103 and Rule 108 although they could refer
to the same issue that is the change of name, there are also marked differences
between these two proceedings. In Rule 108, the petition for the correction mus
t be filed in the locality where the office of the local civil registrar is loca
ted while in rule 103, the petition must be filed in the place where the petitio
ner has resided for at least 3 years. And then in Rule 108, the local civil regi
strar must be impleaded as a defendant / respondent. So Rule 108 considers the l
ocal civil registrar as an indispensable party. If he is not made an indispensab
le party, then the court can deny the petition.
The proceeding in both cases could be adversarial depending on the change t
hat is sought in Rule 108. if the change is substantial, the proceeding must be
adversarial. Meaning to say that there are parties who go to a formal trial and
who will introduce evidence to demonstrate the truth of their allegations. Other
wise the proceeding in Rule 108 could be summary in character. You should also t
ake of that new law which authorizes an administrative change (for clerical erro
rs) to be accomplished by the local civil registrar. We now have a law authorizi
ng these changes if there is a plain clerical error contained in the records of
the local civil registrar. But I understand that this is not usually resorted to
by applicants although it is purely administrative because according to most ap
plicants that I have confirmed with, it is more expensive to deal with the local
civil registrar than to go to court under Rule 108. it seems that the fees bein
g charged by the local civil registrar are going to be spent if they simply go t
o court and resort to Rule 108 applying summary procedure. Nonetheless, we have
now a statute authorizing non-judicial or administrative correction of clerical
errors that are contained in documents under the control of the local civil regi
strar.
Absentees. The last special proceeding is absentees. The other special proc
eedings mentioned in our rules are no longer in force. The constitution of the f
amily home, they have been repealed by the provisions of the Family Code.
There are effectively 3 proceedings contemplated in the rule on absentees.
The 1st is the proceeding for the appointment of a representative. The 2nd proce
eding is for the declaration of absence and the 3rd conceivable proceeding is th
e settlement of the estate of the absent or presumably dead person. Under our Fa
mily Code, there is now a petition for the declaration of presumptive death. But
this is only for the purpose of allowing the spouse to remarry. For other purpo
ses, that is not allowed. But if a person disappears and his whereabouts are unk
nown during the 1st two years, what the court can do is to appoint a representat
ive. That could be the subject of a petition for the appointment of a representa
tive. If a person does not turn out within this 2-year period or his whereabouts
remain to be unknown or nobody appears and shows that he is the duly authorized
representative of this party, then there could be a petition for the declaratio
n of absence. If still the person does not appear, then the recourse of the heir
s or the spouse or any person interested in his estate is to file a petition for
the settlement of his estate. That is we return to settlement proceedings. Beca
use that will be the proceeding that will make use of the presumptions contained
in the Civil Code that a person is dead. Again there could be a petition to dec
lare the person presumptively dead but only for a particular purpose. But for th
e purpose of settlement of his estate, there is no need for the court order to d
eclare the person presumptively dead. There is a presumption given in our laws,
in the Code, that a person is presumed to be dead under certain circumstances. O
nce these circumstances are apparent, the only way by which we could make use of
the presumption is to file a proceeding for the settlement of his estate. Once
the facts from which this presumption will arise are proven the court can apply
this presumption of death and settle the estate accordingly. But if later on he
appears, then the court will simply order a reversion of the properties of this
person / party.
But what is important to know in this matter of absence is that there is no
need for a prior declaration of presumptive death for the purpose solely of set
tling the estate of the absentee. An interested party, a kin or the surviving sp
ouse, can immediately file a petition for the settlement of his estate on the ba
sis of the presumption of death that is given by the Civil Code.
Appeals. The last rule on special proceedings is about appeals. And again I
wish to emphasize that the rules on appeal in special proceedings are different
from the rules on appeal in civil cases except civil actions which admit of mul
tiple appeals. In ordinary civil cases, the period to appeal is 15 days. There a
re only 2 requirements to be satisfied, file a notice of appeal within the 15-da
y period. But in special proceedings, the period is lengthened to 30 days. Aside
from the payment of appellate court docket fee, the appellate must prepare a re
cord on appeal which must be submitted to the court for approval. It is unlike a
notice of appeal which is not required to be approved by the court.
??
??
??
??

- 1 -