TORRES, BRENT CHRISTIAN T.

SPEC PRO
JD 3A
COMPLETION ACTIVITIES
SPECIAL PROCEEDINGS
I. CASE DIGESTS:

1. IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA

GARCIA
G.R. No. 148311. March 31, 2005
FACTS:
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition to
adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein,
among others, that Stephanie was born on June 26, 1994; that her mother is Gemma
Astorga Garcia; that Stephanie has been using her mother’s middle name and
surname; and that he is now a widower and qualified to be her adopting parent. He
prayed that Stephanie’s middle name Astorga be changed to "Garcia," her mother’s
surname, and that her surname "Garcia" be changed to "Catindig," his surname. The
petition was granted pursuant to Article 189 of the Family Code of the Philippines, of
which the name was changed to STEPHANIE NATHY CATINDIG.
On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration
praying that Stephanie should be allowed to use the surname of her natural mother
(GARCIA) as her middle name.
On May 28, 2001, the trial court denied petitioner’s motion for reconsideration
holding that there is no law or jurisprudence allowing an adopted child to use the
surname of his biological mother as his middle name.
Hence, the petitioner submitted the following contentions: (1) there is no law
prohibiting an adopted child from having a middle name in case there is only one
adopting parent; (2) it is customary for every Filipino to have as middle name the
surname of the mother; (3) the middle name or initial is a part of the name of a person;
(4) adoption is for the benefit and best interest of the adopted child, hence, her right to
bear a proper name should not be violated; (5) permitting Stephanie to use the middle
name "Garcia" (her mother’s surname) avoids the stigma of her illegitimacy; and; (6) her
continued use of "Garcia" as her middle name is not opposed by either the Catindig or
Garcia families.

ISSUE:
Whether an illegitimate child may use the surname of her mother as her middle
name when she is subsequently adopted by her natural father.

RULING:
Yes, an illegitimate child may use the surname of her mother as her middle name
when she is subsequently adopted by her natural father.
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A
The Supreme Court granted the decision based on four reasons. First reason is
that the use of surname is fixed by law under Article 364 to 380 of the Civil Code. The
name of an individual has two parts: (1) the given or proper name and (2)
the surname or family name. The given or proper name is that which is given to the
individual at birth or at baptism, to distinguish him from other individuals. The surname
or family name is that which identifies the family to which he belongs and is continued
from parent to child. The given name may be freely selected by the parents for the child,
but the surname to which the child is entitled is fixed by law.
Second,  there is no law regulating the use of a middle name. However, as
correctly pointed out by the OSG, the members of the Civil Code and Family Law
Committees that drafted the Family Code recognized the Filipino custom of adding
the surname of the child’s mother as his middle name. In the case of an adopted
child, the law provides that "the adopted shall bear the surname of the adopters." Again,
it is silent whether he can use a middle name. What it only expressly allows, as a matter
of right and obligation, is for the adoptee to bear the surname of the adopter, upon
issuance of the decree of adoption.
Third, the underlying intent of adoption is in favor of the adopted child.
Adoption is defined as the process of making a child, whether related or not to the
adopter, possess in general, the rights accorded to a legitimate child. Being a
legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all
the rights provided by law to a legitimate child without discrimination of any kind,
including the right to bear the surname of her father and her mother. Stephanie’s
continued use of her mother’s surname (Garcia) as her middle name will maintain her
maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section
1824, Article V of RA 8552 (law on adoption) provide that the adoptee remains an
intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her
hereditary rights from her natural mother in the future. Hence, to allow Stephanie to use
her mother’s surname as her middle name will not only sustain her continued loving
relationship with her mother but will also eliminate the stigma of her illegitimacy.
Lastly, It is a settled rule that adoption statutes, being humane and salutary,
should be liberally construed to carry out the beneficent purposes of adoption. 25 The
interests and welfare of the adopted child are of primary and paramount
consideration,26 hence, every reasonable intendment should be sustained to promote
and fulfill these noble and compassionate objectives of the law. Hence, since there is no
law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to
use, as middle name her mother’s surname, the Supreme Court found no reason why
she should not be allowed to do so.
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A
2. HERBERT CANG vs. COURT OF APPEALS and Spouses RONALD V. CLAVANO
and MARIA CLARA CLAVANO
G.R. No. 105308 September 25, 1998
FACTS:
Petitioner Herbert Cang and Anna Marie Clavano who were married on January
27, 1973, begot three children, namely: Keith, born on July 3, 1973; Charmaine, born on
January 23, 1977, and Joseph Anthony, born on January 3, 1981. Not long thereafter,
however, Anna Marie learned of her husband's alleged extramarital affair with Wilma
Soco, a family friend of the Clavanos. Hence, Anna Marie filed a petition for legal
separation with alimony pendente lite which was approved.
Petitioner then left for the United States where he sought a divorce from Anna
Marie before the Second Judicial District Court of the State of Nevada. Said court
issued the divorce decree that also granted sole custody of the three minor children to
Anna Marie, reserving "rights of visitation at all reasonable times and places" to
petitioner.
Ronald V. Clavano and Maria Clara Diago Clavano, respectively the brother and
sister-in-law of Anna Marie, filed an application for the adoption of the three minor Cang
children before the Regional Trial Court of Cebu. The petition bears the signature of
then 14-year-old Keith signifying consent to his adoption. Anna Marie likewise filed an
affidavit of consent alleging that her husband had "evaded his legal obligation to
support" his children; that her brothers and sisters including Ronald V. Clavano, had
been helping her in taking care of the children; that because she would be going to the
United States to attend to a family business, "leaving the children would be a problem
and would naturally hamper her job-seeking venture abroad;" and that her husband had
"long forfeited his parental rights" over the children.
Upon learning of the petitioner for adoption, petitioner immediately returned to
the Philippines and filed an opposition thereto, alleging that, although private
respondents Ronald and Maria Clara Clavano were financially capable of supporting the
children while his finances were "too meager" compared to theirs, he could not "in
conscience, allow anybody to strip him of his parental authority over his beloved
children."
The Regional Trial Court issued the decree of adoption and concluded that the
petitioner had abandoned his children.

ISSUE:
Whether the petitioner has abandoned his children and the latter be legally
adopted without his written consent as the father.

RULING:
No, the petitioner has not abandoned his children and the latter cannot be legally
adopted without his written consent as the father.
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A

In its ordinary sense, the word "abandon'' means to forsake entirely, to forsake or
renounce utterly. The dictionaries trace this word to the root idea of "putting under a
ban." The emphasis is on the finality and publicity with which a thing or body is thus put
in the control of another, hence, the meaning of giving up absolutely, with intent never to
resume or claim one's rights or interests. In reference to abandonment of a child by his
parent, the act of abandonment imports "any conduct of the parent which evinces a
settled purpose to forego all parental duties and relinquish all parental claims to the
child." It means "neglect or refusal to perform the natural and legal obligations of care
and support which parents owe their children." 
In the instant case, records disclose that petitioner's conduct did not manifest a
settled purpose to forego all parental duties and relinquish all parental claims over his
children as to, constitute abandonment. Physical estrangement alone, without financial
and moral desertion, is not tantamount to abandonment.  While admittedly, petitioner
was physically absent as he was then in the United States, he was not remiss in his
natural and legal obligations of love, care and support for his children. He maintained
regular communication with his wife and children through letters and telephone. He
used to send packages by mail and catered to their whims.
Said petition must be denied as it was filed without the required consent of their
father who, by law and under the facts of the case at bar, has not abandoned them.
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A
3. MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO vs.
HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch
20, Vigan, Ilocos Sur; VICTOR BUNDOC; and CLARA BUNDOC
G.R. No. 85044 June 3, 1992
FACTS:
On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot
Jennifer Tamargo with an air rifle causing injuries which resulted in her death.
Accordingly, a civil complaint for damages was filed with the Regional Trial Court,
Branch 20, Vigan, Ilocos Sur by petitioner Macario Tamargo, Jennifer's adopting parent,
and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural parents against
respondent spouses Victor and Clara Bundoc, Adelberto's natural parents with whom he
was living at the time of the tragic incident. In addition to this case for damages, a
criminal information or Homicide through Reckless Imprudence was filed against
Adelberto Bundoc. Adelberto, however, was acquitted and exempted from criminal
liability on the ground that he had acted without discernment.
Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa
Rapisura had filed a petition to adopt the minor Adelberto, which was granted on, 18
November 1982, that is, after Adelberto had shot and killed Jennifer.
In their Answer, respondent spouses Bundoc, Adelberto's natural parents,
reciting the result of the foregoing petition for adoption, claimed that not they, but rather
the adopting parents, namely the spouses Sabas and Felisa Rapisura, were
indispensable parties to the action since parental authority had shifted to the adopting
parents from the moment the successful petition for adoption was filed.
Petitioners in their Reply contended that since Adelberto Bundoc was then
actually living with his natural parents, parental authority had not ceased nor been
relinquished by the mere filing and granting of a petition for adoption.
The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that
respondent natural parents of Adelberto indeed were not indispensable parties to the
action.
Hence, petitioners filed a Petition for Review contending that respondent
spouses Bundoc are the indispensable parties to the action for damages caused by the
acts of their minor child, Adelberto Bundoc. 

ISSUE:
Whether or not the effects of adoption, insofar as parental authority is concerned
may be given retroactive effect so as to make the adopting parents the indispensable
parties in a damage case filed against their adopted child, for acts committed by the
latter, when actual custody was yet lodged with the biological parents.

RULING:
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A
No, the Supreme Court does not believe that parental authority is properly
regarded as having been retroactively transferred to and vested in the adopting parents,
the Rapisura spouses, at the time the air rifle shooting happened. The Supreme Court
does not consider that retroactive effect may be giver to the decree of adoption so as to
impose a liability upon the adopting parents accruing at a time when adopting parents
had no actual or physically custody over the adopted child. Retroactive affect may
perhaps be given to the granting of the petition for adoption where such is essential to
permit the accrual of some benefit or advantage in favor of the adopted child.
In the instant case, however, to hold that parental authority had been
retroactively lodged in the Rapisura spouses so as to burden them with liability for a
tortious act that they could not have foreseen and which they could not have prevented
(since they were at the time in the United States and had no physical custody over the
child Adelberto) would be unfair and unconscionable. Such a result, moreover, would be
inconsistent with the philosophical and policy basis underlying the doctrine of vicarious
liability. Put a little differently, no presumption of parental dereliction on the part of the
adopting parents, the Rapisura spouses, could have arisen since Adelberto was not in
fact subject to their control at the time the tort was committed.
This principle of parental liability is a species of what is frequently designated as
vicarious liability, or the doctrine of "imputed negligence" under Anglo-American tort law,
where a person is not only liable for torts committed by himself, but also for torts
committed by others with whom he has a certain relationship and for whom he is
responsible. Thus, parental liability is made a natural or logical consequence of the
duties and responsibilities of parents — their parental authority — which includes the
instructing, controlling and disciplining of the child.
In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured
when parental authority was still lodged in respondent Bundoc spouses, the natural
parents of the minor Adelberto. It would thus follow that the natural parents who had
then actual custody of the minor Adelberto, are the indispensable parties to the suit for
damages.

4. MA. BLYTH B. ABADILLA vs. JUDGE JOSE C. TABILIRAN, JR.

TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A
A.M. No. MTJ-92-716 October 25, 1995
FACTS:
On September 8, 1992, an administrative case was filed by Ma. Blyth B. Abadilla,
a Clerk of Court assigned at the sala of respondent, Judge Jose C. Tabiliran, Jr., of the
8th Municipal Circuit Trial Court, Manukan, Zamboanga del Norte. Respondent stands
charged with "gross immorality, deceitful conduct, and corruption unbecoming of a
judge."
Complainant Abadilla, in respect to the charge of gross immorality on the part of
the respondent, contends that respondent had scandalously and publicly cohabited with
a certain Priscilla Q. Baybayan during the existence of his legitimate marriage with
Teresita Banzuela. Respondent allegedly contracted a bigamous marriage with the said
Priscilla Baybayan on May 23, 1986. Furthermore, respondent falsely represented
himself as "single" in the marriage contract (Exh. "A") and dispensed with the
requirements of a marriage contract by invoking cohabitation with Baybayan for five
years.
In respect of the charge of deceitful conduct, complainant claims that respondent
caused to be registered as "legitimate", his three illegitimate children with Priscilla
Baybayan, namely: (1) Buenasol B. Tabiliran born on July 14, 1970, (2) Venus B.
Tabiliran born on Sept. 7, 1971, (3) Saturn B. Tabiliran born on Sept. 20, 1975 by falsely
executing separate affidavits stating that the delayed registration was due to
inadvertence, excusable negligence or oversight, when in truth and in fact, respondent
knew that these children cannot be legally registered as legitimate.
Respondent, in his comment, dated December 25, 1992, declared that his cohabitation
with Priscilla Baybayan is not and was neither bigamous nor immoral because he
started living with Priscilla Baybayan only after his first wife had already left and
abandoned the family home in 1966 and, since then, and until the present her
whereabouts is not known and respondent has had no news of her being alive. He
further avers that 25 years had already elapsed since the disappearance of his first wife
when he married Priscilla Baybayan in 1986.

ISSUE:
1. Whether Tabiliran’s marriage to Baybayan was valid.
2. Whether the three children were legitimated by the subsequent marriage of the
respondent.

RULING:
1. No, the marriage was not valid. The respondent is gulilty for gross immorality,
he having scandalously and openly cohabited with the said Priscilla Baybayan during
the existence of his marriage with Teresita B. Tabiliran.
Contrary to his protestations that he started to cohabit with Priscilla Baybayan
only after his first wife, Teresita Tabiliran, had long abandoned him and the conjugal
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A
home in 1966, it appears from the record that he had been scandalously and openly
living with said Priscilla Baybayan as early as 1970 as shown by the fact that he begot
three children by her, namely Buenasol, Venus and Saturn, all surnamed Tabiliran.
Buenasol was born on July 14, 1970; Venus was born on September 7, 1971; while
Saturn was born on September 20, 1975. Evidently, therefore, respondent and Priscilla
Baybayan had openly lived together even while respondent's marriage to his first wife
was still valid and subsisting. The provisions of Sec. 3(w) of the Rules of Court and Art.
390 of the Civil Code which provide that, after an absence of seven years, it being
unknown whether or not the absentee still lives, the absent spouse shall be considered
dead for all purposes, except for those of succession, cannot be invoked by respondent.
By respondent's own allegation, Teresita B. Tabiliran left the conjugal home in 1966.
From that time on up to the time that respondent started to cohabit with Priscilla
Baybayan in 1970, only four years had elapsed. Respondent had no right to presume
therefore that Teresita B. Tabiliran was already dead for all purposes. Thus,
respondent's actuation of cohabiting with Priscilla Baybayan in 1970 when his marriage
to Teresita B. Tabiliran was still valid and subsisting constitutes gross immoral conduct.
It makes mockery of the inviolability and sanctity of marriage as a basic social
institution.

2. No, despite his subsequent marriage to Priscilla, these three children cannot
be legitimated nor in any way be considered legitimate since at the time they were born,
there was an existing valid marriage between respondent and his first wife, Teresita B.
Tabiliran. The applicable legal provision in the case at bar is Article 269 of the Civil
Code of the Philippines (R.A. 386 as amended) which provides:

Art. 269. Only natural children can be legitimated. Children born outside of
wedlock of parents who, at the time of the conception of the former, were
not disqualified by any impediment to marry each other, are natural.

Legitimation is limited to natural children and cannot include those born of adulterous
relations (Ramirez vs. Gmur, 42 Phil. 855). The Family Code: (Executive Order, No.
209), which took effect on August 3, 1988, reiterated the above-mentioned provision
thus:

Art. 177. Only children conceived and born outside of wedlock of parents
who, at the time of the conception of the former, were not disqualified by
any impediment to marry each other may be legitimated.

The reasons for this limitation are given as follows:

1) The rationale of legitimation would be destroyed;

TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A
2) It would be unfair to the legitimate children in terms of successional
rights;

3) There will be the problem of public scandal, unless social mores

change;

4) It is too violent to grant the privilege of legitimation to adulterous

children as it will destroy the sanctity of marriage;

5) It will be very scandalous, especially if the parents marry many years

after the birth of the child. (The Family Code, p. 252, Alicia v. Sempio Diy).

It is clear, therefore, that no legal provision, whether old or new, can give refuge
to the deceitful actuations of the respondent.
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A
5. SEVERINO PAREDES, and VICTORIO G. IGNACIO vs. THE HON. JOSE L. MOYA
and CARMENCITA NAVARRO-Administratrix (Substituted for deceased August
Kuntze)
G.R. No. L-38051 December 26, 1974
FACTS:
Severino Paredes commenced a suit on January 4, 1964 in CFI-Manila, for the
collection of separation and overtime pays against his employer, August Kuntze. On
March 5, 1971, a decision was rendered against the defendant August Kuntze, from
which judgment, he appealed to the Court of Appeals. While the case was pending
appeal in the said Court, August Kuntze died on June 19, 1972. Thereafter, Carmencita
D. Navarro Kuntze, administratrix of the estate of the deceased, was substituted in his
place as party in the appealed case. On June 5, 1973 the Court of Appeals dismissed
the appeal for appellant's failure to file the printed record on appeal, and so the record
of the case was ordered remanded respondent court.
A motion for execution was filed by Paredes. On August 22, 1973 the provincial
Sheriff of Rizal levied on the properties of Kuntze now substituted by the Administratrix
of the estate consisting of two (2) lots. In the auction sale conducted by the Sheriff of
Rizal on October 2, 1973, Paredes, being the highest bidder, acquired said lot for the
total sum of P17,296.16.
However, in spite of a Motion to Quash the Writ of Execution filed by
Administratrix on September 6, 1973 and still pending resolution, Paredes sold the
property he acquired in execution sale in favor of his co-petitioner, Victorio Ignacio on
October 10, 1973.
Notwithstanding the opposition to the Motion to Quash the Writ of Execution,
respondent Court, on November 2, 1973, issued an order setting aside the Writ of
Execution of August 22, 1973, and the Sheriff's Sale and Public Auction of the property
covered by TCT No. 45089, without prejudice to the filing of the judgment as a claim in
the proceedings for settlement of the estate of the deceased.

ISSUE:
Whether the petitioner erred in filing his claim to have the money judgment in his
favor executed against the properties of the deceased Kuntze.

RULING:
Yes, it was error on the part Paredes to have the money judgment in his favor
executed against the properties of the deceased Kuntze.
The proper remedy of plaintiff Paredes should have been to file his claim in the
administration proceedings of the estate of the deceased defendant Kuntze where
private respondent is the administratrix, because:
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A
All claims for money against the decedent, arising from contract, express
or implied, whether the same be due, not due, or contingent, all claims for
funeral expenses and expenses for the last sickness of the decedent, and
judgment for money against the decedent, must be filed within the time
limited in the notice; (to the creditors) . . . .

Judgment for money against the decedent, must be filed at the time limited in the notice
(to creditors) before the court where the administration proceeding involving the estate
of the deceased Kuntze are pending. Section 5, Rule 86 of the Rules of Court provides:

All claims for money against the decedent, arising from contract, express
or implied, whether the same be due, not due, or contingent, all claims for
funeral expenses and expenses for the last sickness of the decedent
and judgment for money against the decedent, must be filed (before the
probate court) within the time limited in the notice (to the creditors);
otherwise they are barred forever, except that they may be set forth as
counterclaims in any action that the executor or administrator may bring
against the claimants. (1st sentence, Section 5, Rule 86 of the Rules of
Court)
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A

II. BAR QUESTIONS AND ANSWERS:

 (1993 Remedial Law Bar Exam

Question No. 16: (Cancellation or Correction of Entries in the Civil Registry)

On May 12, 1990, Roman Agcaoili filed a petition in the Regional Trial Court to
correct his birth certificate by changing his citizenship from “Chinese" to “Filipino" and
his status from “legitimate" to “illegitimate". The Local Civil Registrar was named
respondent in the petition.

Copy of the notice of hearing was served on the Solicitor General. The notice
was published in a newspaper of general circulation once a week for three consecutive
weeks.

Before the scheduled hearing, the Solicitor General entered his appearance as
counsel for the Republic of the Philippines and authorized the Provincial Prosecutor to
appear in the case. However, the prosecutor did not file an opposition to the petition.
Instead, he appeared at/ and participated in. the trial and even cross-examined Agcaoili
and his witnesses.

There was a full-blown trial where Agcaoili presented testimonial and

documentary evidence proving that he is a Filipino citizen, being an illegitimate child of
Tan Keh (Chinese) and Cayetana Agcaoili (Filipino) who were never married. However,
the Republic presented no evidence.

After hearing, the trial court ordered the Local Civil Registrar to make the
corrections sought by Agcaoili.

The Solicitor General appealed. He argued that substantial changes in the civil
registry cannot be made under Rule 108 of the Rules of Court. Is the contention
correct? Why?

Answer:
No. because proceedings under Rule 108 of the Rules of Court may be
either summary or adversary in nature. If the correction sought to be made in the
civil registry is clerical, then the procedure is summary. If the rectification affects
the civil status, citizenship or nationality of a party, it is deemed substantial and
the procedure adopted is adversary. In this case, the procedure was adversary.
The proper notice was published and served on the Solicitor General. There was
a full-blown trial where Agcaoili presented testimonial and documentary
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A
evidence proving that he is a Filipino Citizen. The prosecutor authorized by the
Solicitor General to appear in the case participated in the trial and even cross-
examined Agcaoili and his witnesses. Consequently, the court correctly ordered
the Local Civil Registrar to make the corrections sought. (Republic vs. Bautista,
155 SCRA 1)

Question No. 19: (Habeas Corpus)

Roxanne, a widow, filed a petition for habeas corpus with the Court of Appeals
against Major Amor who is allegedly detaining her 18-year-old son Bong without
authority of law.

After Major Amor had filed a return alleging the cause of detention of Bong, the
Court of Appeals promulgated a resolution remanding the case to the Regional Trial
Court for a full-blown trial due to the conflicting facts presented by the parties in their
pleadings. In directing the remand, the Court of Appeals relied on Sec. 9(1), in relation
to Sec. 21 of BP 129 conferring upon said Court the authority to try and decide habeas
corpus cases concurrently with the Regional Trial Courts.

Did the Court of Appeals act correctly in remanding the petition to the Regional
Trial Court? Why?

Answer:
No. because while the Court of Appeals has original jurisdiction over habeas
corpus concurrent with Regional Trial Courts, it has no authority for remanding
to the latter original actions filed with the former. On the contrary, the Court of
Appeals Is specifically given the power to receive evidence and perform any and
all acts necessary to resolve factual issues raised in cases falling within its
original jurisdiction. (Sec. 9. second paragraph of B.P. Big. 129, as amended by
E.O. No. 33 s. 1986; Orda vs. Court of Appeals. 192 SCRA 768).

Alternative Answer:
Yes, because there is no prohibition in the law against a superior court
referring a case to a lower court having concurrent Jurisdiction. The Supreme
Court has referred to the Court of Appeals or the Regional Trial Court cases
falling within their concurrent Jurisdiction.
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A

 (1992 Remedial Law Bar Exam)

Question No. 9: (Production of Will)

The last will and testament of the deceased was presented in the proceeding to settle
his estate, and in due course, hearing was set for the probate of the will. Before
evidence, thereon could be presented, the legal heirs of the deceased, his widow and
two surviving daughters, filed a manifestation that the probate of the will would no
longer be necessary since they had already agreed to divide the net estate differently
in accordance with a project of partition attached to their manifestation. Consequently,
they moved that the project of partition be approved and forthwith implemented without
probate of the decedent’s will.

Should the court grant the heirs motion and accordingly approve their project of
partition without probate of the will? Explain.

Suggested Answer:

No. the court may not approve the project of partition without probate of
the will, because no will shall pass either real or personal estate unless it is
proved and allowed in the proper court. (Sec. 1 of Rule 75) The law and public
policy require the probate of the will because otherwise, the right of a person to
dispose of his property by will may be rendered, nugatory. (Ralla vs. Untalan, 172
SCRA 858)

Question No. 10: (Change of Name)

Pernito, also known in the community as Peregrino filed a petition for change of
name to Pedro. The name Peregrino appeared in the body of the petition but not in the
caption. When the petition was published, the caption and the body of the petition
were merely lifted verbatim, so that as published, the petition’s caption still did not
contain Peregrino as the petitioner’s alias. The government lawyer filed a motion to
dismiss on the ground that, notwithstanding publication for the requisite number of
times, the court did not acquire Jurisdiction over the petition because petitioner’s alias
(Peregrino) did not appear in the published caption. The court denied the motion to
dismiss with the ruling that there was substantial compliance with the law and that the
omission of the alias in the caption may be deemed de minimis because the alias was
clearly set forth in the petition itself.
Was the court correct in denying the motion to dismiss? Explain.
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A

Suggested Answer:
No, the failure of the petitioner to include his alias (Peregrino) in the caption
is a jurisdictional defect and the inclusion of the alias in the body of the petition
does not cure said defect. The reason for the rule is that the ordinary reader only
glances fleetingly at the caption in a special proceeding and only if the caption
strikes him does he proceed to read the body of the petition; hence, .he will
probably not notice the other names or aliases of the petitioner. (Gil Go vs.
Republic, 77 SCRA 65)

 (1987 Remedial Law Bar Exam)

Question No. 15: (Claims Against the Estate)

In a claim for money filed in a proceeding for the settlement of the estate of a
deceased, the claimant has a promissory note purporting to have been signed by the
deceased as debtor and with the claimant as creditor. The claimant also has a check for
the same amount as in the promissory note and issued on the same date as the
promissory note. The check drawn by the claimant and issued in the name of the
deceased as payee, bears on its back a signature purportedly belonging to the
deceased and other writings indicating that the check had been deposited in a bank and
credited to the account of the payee.
Can this money claim against the estate be proved? If so, how? Explain.

Answer:
Yes. The claimant should attach a copy of the promissory note executed by the
deceased in his favor to his claim and serve a copy thereof on the executor or adminis -
trator. If the executor or administrator admits or does not deny the claim in his answer,
the court may approve the same.
If the executor or administrator or heir opposes the claim, the same may be
proved by the testimony of a witness who can authenticate the promissory note. A
witness other than the claimant from the bank may also testify that the check of the
claimant for the same amount as the promissory note was endorsed by the deceased
and deposited to his account in the bank.

Alternative Answer:
The claimant himself may authenticate the promissory note since this is not
covered by the rule on surviving parties or the dead man’s statute. Authentication is not
a matter of fact on which the claimant’s lips are sealed.
TORRES, BRENT CHRISTIAN T. SPEC PRO
JD 3A
*Reference for 1992,1993 and 1987 Remedial Law Bar Examination:
https://www.scribd.com/document/336325988/Remedial-Law-Bar-Q-A-1987-2010 ; Downloaded: July 27,2020