SPECIAL PROCEEDINGS
AND SPECIAL RULES IMPLEMENTING
THE FAMILY COURTS ACT OF 1997
(Republic Act No. 8369)
Chapter One
GENERAL PROVISION
RULE 72
SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
SECTION 1. Subject matter of special proceedings. — Rules of special proceedings are provided for in the follow-ing cases:
(a) Settlement of estate of deceased persons; (b) Escheat;
(c) Guardianship and custody of children; (d) Trustees;
(e) Adoption;
(f) Recession and revocation of adoption; (g) Hospitalization of insane persons; (h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of mi-nor natural children;
(1) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation or correction of entries in the civil registry.
NOTES:
1. Distinguish Action and Special Proceeding
There is a marked distinction between an "action" and
"spe-cial proceeding." An action is a formal demand of one's right in a
court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. The term "special proceeding" may be defined as an application or proceeding to establish the status or right of a party, or a particular fact. Usually, in special proceedings, no for-mal pleadings are required, unless the statute expressly so pro-vides. In special proceedings, the remedy is granted generally upon an application or motions.1 Where a party-litigant seeks to recover
property from another, his remedy is to file an action. Where his purpose is to seek the appointment of a guardian for an insane, his remedy is a special proceeding to establish the fact or status of insanity calling for an appointment of guardianship.2
Special proceedings are not limited to the cases enumerated in Section 1 of this rule, but includes cases the purpose of which is to establish the status or right of a party or a particular fact.
2. Liquidation Proceeding is a Special Proceeding A petition for liquidation of an insolvent corporation should be classified a special proceeding and not an ordinary action. Such petition does not seek the enforcement or protection of a right nor the prevention or redress of a wrong against a party. It does not pray for affirmative relief for injury arising from a party's wrongful act or omission nor state a cause of action that can be enforced against any person.3
'Hagans v. Wizlizemus, 42 Phil. 880; Vide Pacific B a n k i n g Corporation Employees' Organization v. Court of Appeals, 2 4 2 SCRA 4 9 2 (1995); N a t c h e r v. Court of A p -peals, 366 SCRA 385 (2001).
2Supra.
3Pacific Banking Corporation Employees' Organization v. Court of Appeals,
Rule 72 S U B J E C T MATTER A N D APPLICABILITY O F G E N E R A L R U L E S
Sec. 1
What it seeks is merely a declaration by the trial court of the corporation's insolvency so that its creditors may be able to file their claims in the settlement of the corporation's debts and obligations. Put in another way, the petition only seeks a declaration of creditors' state of insolvency and the concomitant right of creditors and the order of payment of their claims in the disposition of the corporation assets.4
Thus, a liquidation proceeding resembles the proceeding for the settlement of estate of deceased persons under Rules 73 to 91 of the Rules of Court. The two have a common purpose: the determina-tion of all the assets and the payment of all debts and liabilities of the insolvent corporation or the estate. The liquidator and the ad-ministrator or executor are both charged with the assets for the benefit of the claimants. In both instances, the liability of the corpo-ration and the estate is not disputed. The court's concern is with the declaration of creditors and their rights and the determination of their order of payment. Furthermore, as in the settlement of estates, multiple appeals are allowed in proceedings for liquidation of an insolvent corporation.6
3. Cases covered by the Interim Rules of Intra-corporate
con-troversies are considered as ordinary civil actions. These cases ei-ther seeks the recovery of damages/property or specific performance of an act against a party for the violation or protection of a right. These cases are:
(1) Devices or schemes employed by, or any act of, the board of directors, business associates, officers or part-ners, amounting to fraud or misrepresentation which may be detrimental to the interest of the public and/or of the stockholders, partners, or members of any corporation, partnership or association;
(2) Controversies arising out of intra-corporate, partnership, or association relations, between and among stockholders, members or associates; and between, any or all of them and the corporation, partnership, or
associa-•Pacific B a n k i n g Corporation Employees' Organization v. Court of Appeals, supra.
tion of which they are stockholders, members or associ-ates, respectively;
(3) Controversies in the election or appointment of directors, trustees, officers, or managers of corporations, partnerships or associations;
(4) Derivative suits; and
(5) Inspection of corporate books. 4. Corporate Recovery
On the other hand, a petition for rehabilitation, the procedure for which is provided in the Interim Rules of Procedure on Corporate Recovery, should be considered as a special proceeding. It is one of that seeks to establish the status of a party or a particular fact. As provided in Section 1, Rule 4 of the Interim Rules on Corporate Recovery, the status or fact sought to be established is the inability of the corporate debtor to pay its debts when they fall due so that a rehabilitation plan, containing the formula for the successful recov-ery of the corporation, may be approved in the end. It does not seek a relief from an injury caused by another party.6
5. Action for Reconveyance is an ordinary civil ac-tion where matters relating to settlement of estate cannot be adjudicated
An action for reconveyance and annulment of title with dam-ages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court. Matters which involved settlement and distribution of the estate of the decedent fall within the exclusive province of the probate court in the exercise of its limited jurisdic-tion. Thus, a Regional Trial Court acting in its general jurisdiction in an action for reconveyance is devoid of authority to render an
•Administrative Rules and Regulations, En Banc Resolution, A.M. No. 00-8-10-S C ( 2 0 0 0 ) . (Appendix A - l )
Rule 72 S U B J E C T MATTER A N D APPLICABILITY O F G E N E R A L R U L E S
Sec. 1
adjudication and resolve the issue of advancement of real property in favor of an heir.7
6. Arbitration deemed a special proceeding
Arbitration under a contract or submission shall be deemed a special proceeding, of which the court specified in the contract or submission, or if none be specified, the Court of First Instance for the province or city in which one of the parties resides or is doing business, or in which the arbitration was held, shall have jurisdic-tion. Any application to the court, or a judge thereof, hereunder shall be made in the manner provided for in making and hearing of mo-tions, except as otherwise herein expressly provided.8
7. Confirmation of award
At any time within one month after the award is made, any party to the controversy which was arbitrated may apply to the court having jurisdiction, as provided in section twenty-eight, for an order confirming the award; and thereupon, the court must grant such order unless the award is vacated, modified or corrected, as prescribed herein.
Notice of such motion must be served upon the adverse party or his attorney as prescribed by law for the service of such notice upon an attorney in action in the same court.9
8. Under Republic Act 9285: The Alternative Dispute Resolution Law (ADR)
Proceedings for recognition and enforcement of an arbitration agreement or for vacation, setting aside, correction or modification of an arbitral award, and any application with a court for arbitration assistance and supervision shall be deemed as special proceedings and shall be filed with the Regional Trial Court: (i) where arbitra-tion proceedings are conducted; (ii) where the asset to be attached or levied upon, or the act to be enjoined is located; (iii) where any of the parties to the dispute resides or has his place of business; or (iv) in
'Natcher v. Court of Appeals, G.R. No. 133000, Oct. 2, 2001. "Sec. 22, R.A. 876.
the National Judicial Capital Region, at the option of the appli-cant.1 0
Notice of Proceeding to Parties. — In a special proceeding for
recognition and enforcement of an arbitral award, the Court shall send notice to the parties at their address of record in the arbitra-tion, or if any party cannot be served notice at such address, at such party's last known address. The notice shall be sent at least fifteen (15) days before the date set for the initial hearing of the applica-tion.11
1 0S e c . 47, ADR Law, R.A. 9 2 8 5 (Appendix "A")
Chapter Two
SETTLEMENT OF ESTATE OF DECEASED
PERSONS
RULE 73
VENUE AND PROCESS
SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any prov-ince in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The
jurisdic-tion assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of ju-risdiction appears on the record.
NOTES AND CASES: 1. Definition
A special proceeding for the settlement of estate is intended to settle the entire estate of the deceased.1
In a special proceeding for the settlement of estate, petitioner merely seek to establish a status, a right or particular fact. The fact of death, to be recognized as heirs of the deceased so that they could validly exercise their right to participate in the settlement and
liqui-'Vda. de Reyes v. Court of Appeals, 169 SCRA 524 (1989).
dation of the estate of the decedent consistent with the limited and special jurisdiction of the probate court.2
2. Special Proceeding for the Settlement of Estate of Deceased
Special proceeding for the settlement of the estate of a ceased person may either be testate or intestate. Where the de-ceased left a will, the proceeding is testate and where there is no will, the proceeding is intestate. The probate of the will is manda-tory3 and therefore, takes precedence over intestate proceedings.4
Thus, if in the course of the intestate proceedings, it is found out that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage, an administrator had already been appointed, the latter be-ing required to render a final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice that the proceeding shall con-tinue as an intestacy.5
Thus under Section 1 of Rule 82 if after letters of administra-tion have been granted on the estate of a decedent as if he had died intestate, his Will is proved and allowed by the court, the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith surrender the letters to the court, and render his account within such time as the court directs. Proceedings for the issuance of letters testamentary or of adminis-tration under the will shall be as hereinbefore provided.
3. Conversion of an Intestate into Testate Proceeding
Whether the intestate proceeding already commenced should be discontinued and a new proceeding under a separate number and title should be constituted is entirely a matter of form and lies within the sound discretion of the court. In no manner does it prejudice the substantial rights of any of the heirs or creditors.6
^ d a . de Manalo v. Court of Appeals, G.R. No. 129242, J a n u a r y 16, 2 0 0 1 , 3 6 6 752.
3S e c . 1, Rule 75.
4Cuenco v. Court of Appeals, 53 SCRA 360.
6Uriarte v. Court of First Instance of Negros Occidental, 33 SCRA 2 5 2 , 259.
Rule 73 S E T T L E M E N T OF ESTATE OF D E C E A S E D P E R S O N S V E N U E A N D P R O C E S S
The conversion of an intestate proceeding into a testate one is entirely a matter of form and lies within the sound discretion of the court.7 Generally, consolidation and joint hearing of the two cases
would have been proper if they do not involve settlement of the estate of a decedent, which is covered by a special provision of the Rules of Court, namely Section 1, Rule 73, the specific command of which should be obeyed.8
It has been held that the probate of the will is mandatory.9 It is
anomalous that the estate of a person who died intestate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases.1 0
The mere discovery, however, of a document purporting to be the last will and testament of the decedent after appointment of an administrator and assumption that the decedent died intestate does not, however, ipso facto nullify the letters of administration already issued or even authorize their revocation until the Will has been proved and allowed.11
4. Jurisdiction of Metropolitan Trial Courts, Etc. Under Section 3 of Republic Act 7691, amending Section 33 of BP Big. 129, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts, shall exercise exclusive original ju-risdiction over x x x probate proceedings, testate and intestate, in-cluding the grant of provisional remedies in proper cases, where the value of the x x x estate does not exceed One Hundred Thousand Pesos (P100,000.00) or in, Metro Manila where such x x x estate x x x does not exceed Two hundred thousand pesos (P200,000.00).
5. Where Proceedings commenced, Section 1, Rule 73 Relates to Venue and Not Jurisdiction
Sec. 1, Rule 73 of the Rules of Court prescribing the court where a decedent's estate shall be settled, which is at the place of his
resi-'Intestate Estate of Wolfson, 45 SCRA 3 8 1 . *Ibid.
'Guevara v. Guevarra, 74 Phil. 4 7 9 and 98 Phil. 249; Baluyot v. Panio, 71 SCRA '"Roberts v. Leonidas, 129 SCRA 33.
"Advincula v. Teodoro, 99 Phil. 413. 86.
dence or where the estate is located, relates to venue and not juris-diction. The Judiciary Act of 1948 as amended, confers upon Courts of First Instance jurisdiction over all probate cases independently of the place of residence of the deceased. Because of the existence of numerous Courts of First Instance in the country, the Rules of Court, however, purposely fixes the venue or the place where each case shall be brought. A fortiori, the place of residence of the deceased in settle-ment of estates, probate of will, and issuance of letters of adminis-tration does not constitute an element of jurisdiction over the subject matter. It is merely constitutive of venue. And it is upon this reason that the Revised Rules of Court properly considers the province where the estate of a deceased person shall be settled as "venue."
The place of residence of the deceased is not an element of jurisdiction over the subject matter but merely of venue. And it is upon this ground that in the Rules of Court the province where the estate of the deceased shall be settled is properly called "venue."12
In this jurisdiction wrong venue is merely a waivable proce-dural defect, and such waiver may occur by laches.1 3 In this case,
petitioner has waived its right to contest the question of venue.1 4
6. Meaning of the Term "Resides"
"Resides" should be viewed or understood in its popular sense,
meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or
1 2C u e n c o v. Court of Appeals, Supra.
1 3U r i a r t e v. CFI of Negros O c c , G.R. N o s . L-21938-39, October 2 9 , 1970, 33
SCRA 252 at p. 261.
1 4T h e Consolidated B a n k and Trust Company v. IAC, G.R. N o . 7 5 0 1 7 , J u n e 3,
1991, 198 SCRA 34. In t h i s case, objection to improper v e n u e should be m a d e in a motion to dismiss. Until t h i s is done, v e n u e cannot truly be said to h a v e b e e n improp-erly laid. Thus, while petitioner filed an Omnibus Motion to d i s m i s s , questioning t h e venue of the probate proceedings. This motion w a s however, filed quite late in t h e day, petitioner having already submitted h i s person to t h e jurisdiction of t h e court. While venue should have been laid in Quezon City, petitioner's inaction h a s worked a g a i n s t it. The present rule deleted from Section 4, Rule 4 of t h e 1964 Revised R u l e s of Court waiver of improper v e n u e if not raised in a motion to dismiss. U n d e r t h e present Rule, improper venue m a y be raised as an affirmative defense in t h e answer. (Sec. 6, Rule 16,1997 Rules of Civil Procedure)
Rule 73 S E T T L E M E N T OF ESTATE OF D E C E A S E D P E R S O N S V E N U E A N D P R O C E S S
domicile. Residence simply requires bodily presence as an inhabit-ant in a given place, while domicile required bodily presence in that particular place and also an intention to make it one's domicile. No particular length of time of residence is required though; however, the residence must be more than temporary.1 5
Probate of will of American citizen who left an estate in the Philippines was properly filed in the City of Manila where estate is located.16
7. Question of Venue to be decided by First Court
In order to preclude different courts which may properly as-sume jurisdiction from doing so, and prevent conflict among the different courts which otherwise may properly assume jurisdiction from doing so, the Rule specifies that "the court first taking cogni-zance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all other courts."17
8. Probate Court; Powers and Duties
In probate proceedings, the court orders the probate of the will of the decedent;1 8 grants letters of administration of the party best
entitled thereto or to any qualified applicant;1 9 supervises and
con-trols all acts of administration; hears and approves claims against the estate of the deceased;20 orders payment of lawful debts;2 1
au-thorizes sale, mortgage or any encumbrance of real estate;2 2 directs
the delivery of the estate to those entitled thereto.2 3 It has been held
that the court acts as trustee, and as such trustee, should jealously guard the estate and see to it that it is wisely and economically administered, not dissipated.2 4
"Garcia Fule v. Court of Appeals, 74 SCRA 189 (1976); See also Jao v. Court of Appeals, G.R. No. 128314, May 29, 2 0 0 2 , 382 SCRA 407.
1 6C a y e t a n o v. Leonidas, 129 SCRA 522.
"Malig v. Bush, 28 SCRA 449; Uriarte v. Court of First Instance of Negros, 33 SCRA 252, 258; Cuenco v. Court of Appeals, 53 SCRA 360.
l BR u l e 77, Sec. 3. l eR u l e 79, Sec. 5. MR u l e 86, Sec. 11. "Rule 88, Sec. 11. "Rule 89, Sec. 2. ^Rule 90, Sec. 1.
2 5R u l e s 74 and 86-91.
'"Rules 75-77.
2 7R u l e s 78-85; Heirs of Reyes v. Reyes, 3 4 5 SCRA 5 4 1 .
""Heirs of Sps. Remedios R. Sandejas v. Alex A. Lina, G.R. No. 141634, Febru-ary 5, 2001, 351 SCRA 183.
"'Ramos v. Court of Appeals, 180 SCRA 6 3 5 (1989). ""Reyes v. Mosqueda, 187 SCRA 661 (1990).
Probate jurisdiction covers all matters relating to the settle-ment of estates2 5 and the probate of wills2 6 of deceased persons,
including the appointment and the removal of administrators and executors.27 It also extends to matters incidental and collateral to
the exercise of a probate court's recognized powers such as selling, mortgaging or otherwise encumbering realty belonging to the es-tate. Indeed, the rules on this point are intended to settle the estate in a speedy manner, so that the benefits that may flow from such settlement may be immediately enjoyed by the heirs and the benefi-ciary.
Where the Motion for approval of sale was meant to settle the decedent's obligation to respondent; hence, that obligation clearly falls under the jurisdiction of the settlement court. To require re-spondent to file a separate action — on whether petitioners should convey the title to Eliodoro, Sr.'s share of the disputed realty — will unnecessarily prolong the settlement of the intestate estates of the deceased spouses.2 8
9. Jurisdiction of Probate Court Limited, Special and Exclusive
The rule is well-settled that the jurisdiction of the Regional Trial Court as a probate or intestate court relates only to matters having to do with the settlement of the estate and probate of will of deceased persons and the appointment and removal of administra-tors, execuadministra-tors, guardians and trustees but does not extend to the determination of questions of ownership that arise during the pro-ceedings.29 The intestate court may pass upon the title to a certain
property for the purpose of determining whether the same should or should not be included in the inventory but such determination is not conclusive and is subject to final decision in a separate action regarding ownership which may be constituted by the parties.3 0
Rule 73 S E T T L E M E N T OF ESTATE OF D E C E A S E D P E R S O N S V E N U E A N D P R O C E S S
10. Lack of Jurisdiction to Adjudicate Title
The court in charge of the intestate proceedings cannot adjudi-cate or determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties.3 1
Jurisdiction of Probate Court cannot expand to collateral mat-ters not arising out of or in anyway related to the settlement and adjudication's of the properties of the deceased.
The trial court sitting as a probate court, has limited and spe-cial jurisdiction, and cannot hear and dispose of collateral matters and issues which may be properly threshed out only in an ordinary action.3 2
11. Illustrative Cases
(a) (W)hen questions arise as to ownership of property al-leged to be part of the estate of a deceased person, but claimed by some other person to be his property, not by virtue of any right of inheritance from the deceased but by title adverse to that of the deceased and his estate, such questions cannot be determined in the courts of administration proceedings. The trial court, acting as pro-bate court, has no jurisdiction to adjudicate such contentions, which must be submitted to the trial court in the exercise of its general jurisdiction.3 3
(b) The patent reason is the probate court's limited jurisdic-tion and the principle that quesjurisdic-tions of title or ownership, which result in inclusion or exclusion from the inventory of the property, can only be settled in a separate action.3 4
(c) A probate court is a tribunal of limited jurisdiction. It acts on matters pertaining to the estate but never on rights to property
"Ibid.
3 2V d a . de Manalo v. Court of Appeals, G.R. No. 129242, January 16, 2001.
"Ongsingco v. Tan, 97 Phil. 330, 334-335; Baybayan v. Aquino, G.R. No. L-42678, 9 April 1987, 149 SCRA 186; Jose P. Uy and Rizalina C. Uy v. Hon. Judge Capulong, RTJ-91-766, April 7, 1993, 221 SCRA 87.
"Vda. de Rodriguez v. Court of Appeals, 91 SCRA 540; Jimenez v. Intermediate Appellate Court, G.R. No. 75773, April 17, 1990, 184 SCRA 367; De Leon v. Court of Appeals, G.R. No. 128781, August 6, 2002, 386 SCRA 216.
arising from contract.35 It approves contracts entered into for and on
behalf of the estate or the heirs to it but this is by fiat of the Rules of Court.36 In that case, judicial approval is necessary for the validity of
such contracts. It cannot, however, adjudicate the rights and obliga-tions of the parties thereto. Compliance with the terms and condi-tions thereof may be compelled by specific performance, jurisdiction over which is vested in the Regional Trial Court, acting as a court of general jurisdiction.37
(d) The fact that the petitioners "participated in the formula-tion and in the eventual execuformula-tion of the Property Management and Exchange Contract" does not bar them from raising this jurisdic-tional challenge. The petitioners never contended that the contract cannot be enforced against them nor denied its validity. What they dispute is the jurisdiction of the respondent court to hear the inci-dent in its capacity as a probate court.
The jurisdiction of a probate court is "merely the settlement of the estate" and may not be extended beyond.38
(e) In the Barretto case, the respondent had bound himself under an agreement with the court separate and distinct from that which he had with the decedent. In other words, what the (Probate) court had sought to enforce (in rescinding the contract) was not the contract executed on behalf of the estate but the respondent's agree-ment with the court itself to obtain the best terms of the estate, and consequently, his authority to enter into such a contract. But far from repealing the long-standing rule that a probate court is one of limited jurisdiction, Pio Barretto, in fact, reinforced it.3 9
(f) The case of Pio Barretto v. Court of Appeals ,*° did not broaden the jurisdiction of a probate court. On the contrary, it un-derscored the limited character of its jurisdiction ("the limited juris-diction of a probate court prohibits it from determining, rights to property left by a decedent which depends on the contract"). Since the probate court has no jurisdiction over the question of title and
3 5P i o Barretto Realty Dev., Inc. v. Court of Appeals, Nos. L-62431, A u g u s t 3.
1 9 8 4 , 1 3 1 SCRA 6 0 6 (1984).
"Supra; Rules of Court, Rule 89.
^Supra; Batas P a m b a n s a Big. 129, Sec. 19. ^Supra; Pio Barretto Realty Dev., Inc.
3 9Circa Nila Development Corporation v. Baylen, J a n . 2 9 , 1 9 8 8 , 1 5 7 SCRA 609.
Rule 73 S E T T L E M E N T OF ESTATE OF D E C E A S E D P E R S O N S V E N U E A N D P R O C E S S
ownership of the properties, the respondents may bring a separate action, if they wish to question the petitioner's titles and owner-ship.4 1 Though an order of the probate court approving the sale of
the decedent's property is final, the respondent may file a complaint in the proper court for the rescission of the sale.4 2 Likewise, the
initial question of respondent regarding the propriety of including the properties in question in the inventory of the probate court as he claims ownership thereof may therein be finally and conclusively settled.4 3 The respondent has ample protection of his rights for the
province of the probate court remains merely the settlement of the estate and may not be extended beyond.44
(g) The approval of the probate court of the conditional sale is not a conclusive determination of the intrinsic or extrinsic validity of the conditional sale but a mere recognition of the right of an heir to dispose of her rights and interests over her inheritance even before partition. The Probate jurisdiction of the former Court of First In-stance or the present Regional Trial Court relates only to matters having to do with the settlement of the estate and probate of wills of deceased persons, but does not extend to the determination of ques-tions of ownership that arise during the proceeding. A separate ac-tion may be the appropriate remedy.45
(h) The probate jurisdiction of the former court of first in-stance or the present Regional Trial Court relates only to matters having to do with the settlement of the estate and probate of wills of deceased persons, and the appointment and removal of administra-tors, execuadministra-tors, guardians and trustees. Subject to settled excep-tions the law does not extend the jurisdiction of a probate court to the determination of questions of ownership that arise during the proceeding. The parties concerned may choose to bring a separate action as a matter of convenience in the preparation or presentation of evidence. The approval by the probate court of the conditional sale was without prejudice to the filing of the proper action for
consolida-4 IV d a . de Rodriguez v. Court of Appeals, 91 SCRA 540.
"Pizarro v. Court of Appeals, 99 SCRA 72.
•"Vda. de Rodriguez v. Court of Appeals, supra; Lachenal v. Salas, 71 SCRA "Pizarro v. Court of Appeals, supra.
" R a m o s v. Court of Appeals, 180 SCRA 635. 202.
tion of ownership prescription and/or reformation of instrument in the proper court within the statutory period of limitation.4 6
12. Effect of Pendency of Probate Proceedings
The intestate court may pass upon the title to a certain prop-erty for the purpose of determining whether the same should or should not be included in the inventory but such determination is not conclusive and is subject to final decision in a separate action regarding ownership which may be constituted by the parties.4 7 The
court in charge of the intestate proceedings cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties.4 8
The question of ownership is as a rule, an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate proceeding, the probate court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title.4 9
13. The Purchaser is Forced Intervenor
However, the purchaser of property under administration is a forced intervenor in the intestate proceeding and should answer the amended petition for the annulment of the sale. The Probate Court having authorized the sale, should resolve the issue as to its valid-ity.50
14. Lease Subject to Approval of Court
It has been held that an order of the probate court which has the effect of depriving a lessee of part of the estate without the lease contract having been terminated or annulled in a separate action
"Ramos v. CA, 180 SCRA 6 3 5 (1989).
4 7R e y e s v. Mosqueda, 187 SCRA 661 (1990).
"Ma. Divina Ortanez-Enderes v. CA, S E C , et al., G.R. No. 128525, December 1 7 , 1 9 9 9 , 321 SCRA 178; See also De Leon v. Court of Appeals, G.R. No. 1 2 8 7 8 1 , Au-gust 6, 2002, 386 SCRA 216.
"Reyes v. Cesar R. Reyes, G.R. No. 139587, November 2 2 , 2 0 0 0 , 3 5 4 SCRA 5 4 1 .
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instituted for that purpose is null and void. The contention that the lease must be deemed terminated by the probate court's order ap-proving the project of preliminary partition which allocated the lot leased to an heir is without merit, where the lessee was not party to that partition. The probate court cannot, without any legal ground and without proper proceedings for that purpose, annul the lease. The allegation that the lease has been breached and should there-fore be declared terminated, is a question that must be ventilated in a separate civil action for that purpose, as the same is not within the competence of the court in the exercise of its probate jurisdic-tion.5 1
In a later case, the probate court authorized the administrator to increase the area of the subdivision under administration. The lessee objected on the ground that the enlargement of the subdivi-sion would reduce the land leased to him, that he is in possessubdivi-sion of a valid contract, under express authority of the court, and may not be deprived of his leasehold summarily upon a simple motion. The Court held that the act of giving the property to a lessee is an act of administration subject to the approval of the court. If the probate court has the right to approve the lease, so also may it order its revocation, or the reduction of the subject of the lease.5 2
15. Jurisdiction to Exclusion of Other Courts
Under Section 1 of Rule 73 of the Rules of Court, the court first taking cognizance of the settlement of the estate of the deceased, shall exercise jurisdiction to the exclusion of all other courts. The rule applies equally to both testate and intestate proceedings.53
Thus, claims to the estate of a deceased will not prosper inde-pendently of a proceeding involving the same issue already pending in another court.5 4
16. Provisional Determination of Ownership
(a) The question of ownership is as a rule, an extraneous mat-ter in a probate proceeding — proceeding is restricted to the
extrin-" L l a m a s v. Moscoso, 95 Phil. 599.
S 2Timbol v. Cano, 111 Phil. 923, 926.
" I n t e s t a t e Estate of Wolfson, J u n e 15, 1972, 45 SCRA 381. "Macias v. Uy Kim, 45 SCRA 251.
sic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. x x x as a rule the question of ownership is an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate proceeding, the Pro-bate Court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title.5 5
(b) As a general rule, a probate court can only pass upon questions of title provisionally. Since the probate court's findings are not conclusive being prima facie,56 a separate proceeding is
neces-sary to establish the ownership of the five (5) parcels of land.5 7
All that the said court could do as regards said properties is determine whether they should or should not be included in the inventory or list of properties to be administered by the administra-tor. If there is a dispute as to the ownership, then the opposing parties and the administrator have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so.5 8
(c) The probate court has no jurisdiction to make pronounce-ment regarding the existence or non-existence of encumbrances or to cancel a mortgage on real property in its order approving the sale of the estate under administration.5 9 A probate court cannot
adjudi-cate or determine title to properties claimed to be part of the estate and which are equally claimed to belong to thini parties.6 0
(d) Thus, the allegations the signatures on the real estate mortgage documents were forged may be ventilated in a separate
^Pastor, Jr. v. Court of Appeals, 122 SCRA 885; In t h e Matter of t h e I n t e s t a t e Estate of Deceased Ismael Reyes, The Heirs of Oscar R. Reyes v. Cesar R. Reyes, G.R. No. 139587, November 22, 2000, 3 5 4 SCRA 541.
MB o l i s a y v. Alcid, No. L-45494, 31 A u g u s t 1978, 85 SCRA 213.
6 7Moran's C o m m e n t s on t h e Rules of Court, 1970 Edition, pages 448-449 and
473; Lachenal v. Salas, G.R. No. L-42257, J u n e 1 4 , 1 9 7 6 , 7 1 SCRA 2 6 2 , 2 6 6 ; Magallanes v. Kayanan, 69 SCRA 2 8 , 32-33.
"Mallari v. Mallari, 92 Phil. 694; Bacquial v. A m i h a n , 92 Phil. 501; Valero Vda. de Rodriguez v. Court of Appeals, 91 SCRA 540.
"Register of Deeds of P a m p a n g a v. Philippine National Bank, 84 Phil. 600. Palma v. CA, Sept. 12, 1994, 2 3 6 SCRA 393; Mallari v. Mallari, 92 Phil. 694; Bacquial v. Amihan, 92 Phil. 5 0 1 .
Rule 73 S E T T L E M E N T OF ESTATE OF D E C E A S E D P E R S O N S V E N U E A N D P R O C E S S
proceeding, requiring the presentation of clear and convincing evi-dence.6 1
(e) Stated otherwise, "claims for title to, or right of posses-sion of, personal or real property, made by the heirs themselves, by title adverse to that of the deceased, or made by third persons, cannot be entertained by the (probate) court."62
17. Orders of Inclusion or Exclusion of Properties From Administrator's Inventory are Provisional, Not Final
The provisional character of the inclusion in the inventory of a contested property was reiterated in several cases.6 3 In a special
proceeding for the probate of a will, the question of ownership is an extraneous matter which the probate court cannot resolve with fi-nality.6 4 This applies with equal force to an intestate proceeding.
Determination of the question of title to the subject properties in the probate court is merely provisional, petitioners are not barred from instituting the appropriate action.6 5
See also Cuizon v. Ramolete,66 and Morales v. Court of First
Instance ofCavite.61
All that the probate court could do as regards the properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administra-tor. If there is no dispute, well and good; but if there is, then the parties, the administrator, and the opposing parties have to resort to
"Philippine Commercial International Bank v. CA, G.R. No. 103149, Novem-ber 15, 2000; De Leon v. Court of Appeals, G.R. No. 128781, A u g u s t 6, 2002, 386 SCRA 216.
6 2 Cortes v. Court of Appeals, 3 4 0 SCRA 715 (2000), citing Bernardo v. Court of
Appeals, 7 SCRA 367, 3 7 2 (1963).
MP i o Barreto Realty Development, Inc. v. Court of Appeals, 131 SCRA 606;
Junquera v. Borromeo, 19 SCRA 656; Borromeo v. Canonoy, 19 SCRA 667; Recto v. de la Rosa, 75 SCRA 226.
" S p o u s e s Alvaro Pastor, Jr. v. CA, 122 SCRA 885; Baybayan v. Aquino, G.R. No. L-42678, April 9, 1987, 149 SCRA 186.
6 6J i m e n e z v. IAC, G.R. No. 75773, April 17, 1990, 184 SCRA 367, 371 (1991).
»6129 SCRA 4 9 5 (1984).
6 71 4 6 SCRA 373 (1986). The function of resolving whether or not a certain
prop-erty should be included in the inventory or list of properties to be administered by the administrator is one clearly within the competence of t h e Probate. See Note 75.
""Mallari v. Mallari, 92 Phil. 694; Baquial v. A m i h a n , 92 Phil. 5 0 1 .
6 99 1 SCRA 540.
7 03 Moran's C o m m e n t s on the Rules of Court, 1970 Edition, p a g e s 4 4 8 - 4 4 9 and
473; Lachenal v. Salas, L-42257, J u n e 14, 1976, 71 SCRA 262, 266; Ortega v. CA, supra; Valera v. Inserto, 149 SCRA 533 (1987); Vda. de Rodriguez v. Court of Appeals, 91 SCRA 540 (1979); Cuizon v. Ramolete, 129 SCRA; Borromeo, 81 SCRA 2 7 8 (1978); Garcia v. Garcia, 67 Phil. 353 (1939); Guinguin v. Abuton, 48 Phil. 144 (1925); Pereira v. Court of Appeals, J u n e 20, 1989, 174 SCRA 154; De Leon v. Court of Appeals, G.R. No. 128781, A u g u s t 6, 2002, 386 SCRA 216; Pobre v. Gonong, 148 SCRA 5 5 3 (1987).
7 lI n the Matter of the Intestate E s t a t e of D e c e a s e d Ismael Reyes, The Heirs of
Oscar R. Reyes v. Cesar R. Reyes, G.R. No. 139587, November 22, 2 0 0 0 , supra.
7 2Valera v. Inserto, 149 SCRA 533 (1987).
7 3Valera v. Inserto, Supra.
an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so.6 8
Similarly, the court Valero Vda. de Rodriguez v. Court of
Ap-peals,69 held that the probate court may pass upon the title thereto
for the purpose of determining whether a certain property should or should not be included in the inventory, but such determination is not conclusive and is subject to the final decision in a separate action regarding ownership which may be instituted by the par-ties.7 0
The exception to the rule that the probate court has jurisdic-tion to resolve the issue of ownership when the parties interested are all heirs of the deceased and they submitted the question of title to the property, without prejudice to third persons does not apply where the probate court allowed the introduction of evidence on ownership for the sole purpose of determining whether the subject properties should be included in the inventory which is within the probate court's competence.71
Where the determination by the probate court of the question of title to the property was merely provisional, it can not be the subject of execution, and where Torrens title to the property is not in the decedent's name but in others.7 2
The primary jurisdiction over title issued by the court taking cognizance of the separate action is deemed superior to the contrary order of the probate court in the exercise of its provisional jurisdic-tion over the same quesjurisdic-tion.7 3
Rule 73 S E T T L E M E N T OF ESTATE OF D E C E A S E D P E R S O N S V E N U E A N D P R O C E S S
18. Order of Inclusion or Exclusion is Interlocutory An order to include properties in inventory is merely provisional and interlocutory.
The court which acquires jurisdiction over the properties of a deceased person through the filing of the corresponding proceedings, has supervision and control over the said properties, and under the said power, it is its inherent duty to see that the inventory submit-ted by the administrator appoinsubmit-ted by it contains all the properties, rights and credits which the law requires the administrator to set out in his inventory. In compliance with this duty the court has also inherent power to determine what properties, rights and credits of the deceased should be included in or excluded from the inventory. Should an heir or person interested in the properties of a deceased person duly call the court's attention to the fact that certain proper-ties, rights or credits have been left out in the inventory, it is like-wise the court's duty to hear the observations, with power to deter-mine if such observations should be attended to or not and if the properties referred to therein belong prima facie to the intestate, but no such determination is final and ultimate in nature as to the ownership of the said properties.7 4
19. Distinguish Collation From Order of Exclusion From or Inclusion in Inventory
An order of collation before an order of distribution is merely an order to include the properties in the inventory and is merely interlocutory. Whether collation exists or not are issues to be made determined later when an order for distribution of the estate is to be made after determination of the net remainder of the estate is made.7 5
20. No Execution May Issue Where There Is Adverse Claimant
Since the determination by the Probate Court of the question of title to the fishpond was merely provisional, not binding on the
7 4D e Leon v. Court of Appeals, G.R. No. 128781, August 6, 2002, 386 SCRA 216.
7 6D e Leon v. Court of Appeals, supra, citing Valero Vda. de Rodriguez v. Court of
7 6Valera v. Inserto, supra.
7 78 1 SCRA 2 7 8 (1978).
7 e2 6 9 SCRA 7 6 4 (1997).
7 9C u n a n a n v. Amparo, 80 Phil. 227 (1948).
""Coca v. Borromeo, supra; Pascual v. Pascual, 73 Phil. 5 6 1 (1942); Alvarez v. Espiritu, L-18833, A u g u s t 1 4 , 1 9 6 5 , 1 4 SCRA 8 9 2 (1965); C u n a n a n v. Amparo, 80 Phil. 227 (1948); 3 Moran's C o m m e n t s on t h e Rules of Court, 1970 Ed., p. 4 7 3 ; N a t c h e r v. Court of Appeals, 366 SCRA 3 8 5 (2001); Cortes v. Court of Appeals, 3 4 0 SCRA 715, 7 1 7 , 7 1 8 .
"Cortes v. Court of Appeals, 3 4 0 SCRA 715.
property with any character of authority, definiteness or perma-nence, having been made only for purposes of inclusion in the inven-tory and upon evidence adduced at the hearing of a motion, it cannot be the subject of execution, as against its possessor who has set up title in himself or adversely to the decedent and whose right to possess has not been ventilated and adjudicated in an appropriate action.76
21. Exceptions to Probate Court Limited Jurisdiction
In Coca v. Borromeo17 and Mendoza v. Teh,16 the Court held
that whether a particular matter should be resolved by the Regional Trial Court (then Court of First Instance) in the exercise of its gen-eral jurisdiction or its limited probate jurisdiction is not a jurisdic-tional issue but a mere question of procedure. In essence, it is a procedural question involving a mode of practice which may be waived."79
Analogously, in a train of decisions, the Court has consistently enunciated the long standing principle that although generally, a probate court may not decide a question of title or ownership, yet if the interested parties are all heirs, or the question is one of collation or advancement, or the parties consent to the assumption of jurisdic-tion by the probate court and the rights of third parties are not impaired, then the probate court is competent to decide the question of ownership.80
When the parties are all heirs of the decedent, it is optional upon them to submit to the probate court the question of title to the property.81
Rule 73 S E T T L E M E N T OF ESTATE OF D E C E A S E D P E R S O N S V E N U E A N D P R O C E S S
Questions of title to any property apparently still belonging to estate of the deceased may be passed upon in the Probate Court, with consent of all the parties, without prejudice to third persons.8 2
Unless the claimant and all other parties having legal interest in the property consent, expressly or impliedly, to the submission of the question to the probate court for adjudication or the interests of third persons are not thereby prejudiced, the reason for the excep-tion being that the quesexcep-tion of whether or not a particular matter should be resolved by the court in the exercise of its general or limited jurisdiction as a special court (e.g., probate, land registra-tion, etc.), is in reality not a jurisdictional but in essence of proce-dural one involving a mode of practice which may be waived.83
Thus, the probate court may allow a complaint in intervention after obtaining the consent of all interested parties to its assump-tion of jurisdicassump-tion over the quesassump-tion of title or ascertaining the absence of objection thereto.8 4
22. Where Estate is of Small Value
In a case the sole question to be resolved is whether or not respondent court exceeded its jurisdiction or gravely abused its dis-cretion in approving the project of partition concerning Lot No. 1327 notwithstanding that it is being claimed by petitioners in a separate civil action to be their property and not of the estate. Such being the case, the petition cannot prosper.
The policy of the law is to terminate proceedings for the settle-ment of the estate of deceased persons with the least loss of time.
8 2Trinidad v. Court of Appeals, 2 0 2 SCRA 106 (1991). U p o n the otherhand, the
court held: Where t h e respondent who refused to vacate the house and lot being eyed as part of t h e e s t a t e cannot be considered an "outside parties for he is one of the three compulsory heirs of t h e former. By way of exception to the above-mentioned rule, "when the parties are all heirs of the decedent, it is optional upon them to submit to t h e probate court the question of title to property." Here, the probate court is compe-tent to decide the question of ownership. More so, when t h e opposing parties belong to t h e poor stratum of society and a separate action would be most expensive and inexpe-dient. (Cortes v. Court of Appeals, 3 4 0 SCRA 715 [2000], citing Bernardo v. Court of Appeals, 7 SCRA 367, 372 [1963]).
"Valera v. Inserto, 149 SCRA 533 (1987). **Supra.
This is especially true with small estates for which the rules provide precisely summary procedure dispensing with the appointment of an administrator together with the other involved and cumbersome steps ordinarily required in the determination of the assets of the deceased and the persons entitled to inherit therefrom and the pay-ment of his obligations. Definitely, the probate court is not the best forum for the resolution of the adverse claims of ownership of any property ostensibly belonging to the decedent's estate. While there are settled exceptions to this rule as applied to regular administra-tion proceedings, it is not proper to delay the summary settlement of a deceased person just because an heir or a third person claims that certain properties do not belong to the estate but to him. Such claim must be ventilated in an independent action, and the probate court should proceed to the distribution of the estate, if there are no other legal obstacles to it, for after all such distribution must always be subject to the results of the suit. For the protection of the claimant, the appropriate step is to have the proper annotation of his lis
pen-dens entered.8 5
23. Jurisdiction To Determine Heirs
A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the administration proceedings and cannot properly be made an independent action.8 6
A separate action for the declaration of heirs is not proper.87
It has been held that Petitioner is entitled to prosecute the Civil Case (for compulsory acknowledgment) until it is finally deter-mined, or intervene in the Special Proceeding of the Manila Court, if it is still open, or to ask for its reopening if it has already been closed, so as to be able to submit for determination the question of his acknowledgment as natural child of the deceased testator, said court having, in its capacity as a probate court, jurisdiction to de-clare who are the heirs of the deceased testator and whether or not a
"Ermac v. Mendelo, 64 SCRA 3 5 8 , 359-360. ""Litam v. Espiritu, 100 Phil. 364.
"Pimentel v. Palanca, 5 Phil. 436; Solivio v. Court of Appeals, Feb. 12, 1990, R. No. 8 3 4 8 4 , 1 8 2 SCRA 119.
Rule 73 S E T T L E M E N T OF ESTATE OF D E C E A S E D P E R S O N S V E N U E A N D PROCESS
particular party is or should be declared his acknowledged natural child.8 8
24. Jurisdiction to Distribute Estate
It is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate.
The probate court, in the exercise of its jurisdiction to make distribution, has power to determine the proportion or parts to which each distributee is entitled. ... The power to determine the legality or illegality of the testamentary provision is inherent in the jurisdic-tion of the court making a just and legal distribujurisdic-tion of the inherit-ance. ... To hold that a separate and independent action is necessary to that effect, would be contrary to the general tendency of the jurisprudence of avoiding multiplicity of suits; and is further,
expen-sive, dilatory, and impractical.8 9
25. Jurisdiction to Award Attorney's Fees
In a case, petitioner questions the order of the probate court allowing the annotation of an attorney's lien on the transfer certifi-cate of title of the estate subject of the special proceedings. Again, the issue raised does not deserve any consideration because it is already settled that the application to fix attorney's fees may be made before and passed upon by the probate court in the same proceedings where attorney's services were rendered.9 0
SEC. 2. Where estate settled upon dissolution of mar-riage. — When the marriage is dissolved by the death of the husband or wife, the community property shall be invento-ried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either.
""II Moran on Rules of Court, 1957 Ed., p. 476; Conde v. Abaya, 13 Phil. 249; Severino v. Severino, 44 Phil. 343; Lopez v. Lopez, 68 Phil. 227, and Jimaga-on v. Belmonte, 47 O.G. 1119; Uriarte v. CFI of Negros Occidental, 33 SCRA 252, 262 (1970).
""Marcelino v. Antonio, 70 Phil. 388. "Palanca v. Pecson, et al., 94 Phil. 419.
NOTES AND CASES:
1. Related Family Code Provisions
Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extrajudicially within one year from the death of the deceased spouse. If upon the lapse of the said period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.
Art. 104. Whenever the liquidation of the community properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each community shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which community the existing properties belong, the same shall be divided between or among the different communities in proportion to the capital and duration of each.
Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same pro-ceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extrajudicially within one year from the death of the deceased spouse. If upon the lapse of the six month-period, no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage •without complying with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.
Rule 73 S E T T L E M E N T OF ESTATE OF D E C E A S E D P E R S O N S P E R S O N S V E N U E A N D P R O C E S S
Art. 131. Whenever the liquidation of the conjugal partnership properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each partnership shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which partnership the exist-ing properties belong, the same shall be divided between the different partnerships in proportion to the capital and duration of each.
Art. 132. The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in this Chapter.
1. If both spouses died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either. It is not necessary to file a separate proceeding in court for the proper disposi-tion of the estate of the deceased wife where there is already a pending proceedings in the settlement of the estate of the deceased husband.1
When the controversy is whether the property in issue belongs to the conjugal partnership or exclusively to the decedent, the same is properly within the jurisdiction of the probate court, which
necessar-ily has to liquidate the conjugal partnership in order to determine the estate of the decedent which is to be distributed among the heirs.2
2. Thus, the rules on dissolution and liquidation of the con-jugal partnership of gains under the aforecited provisions of the Civil
Code would be applied effective January 4, 1973 when the decree of legal separation became final. Upon the liquidation and distribution conformably with the law governing the effects of the final decree of legal separation, the law on intestate succession should take over in the disposition of whatever remaining properties have been allocated to petitioner. This procedure involves details which properly pertain to the lower court.
The properties that may be allocated to the deceased petitioner by virtue of the liquidation of the conjugal assets, shall be
distrib-lV i t a v. Montano, 194 SCRA 180; Cortes v. Court of Appeals, 340 SCRA 715
(2000).
2Cortes v. Court of Appeals, 3 4 0 SCRA 715 (2000), citing Bernardo v. Court of
3Macadangdang v. CA, 108 SCRA 3 1 4 (1981).
P h i l i p p i n e Commercial and Industrial B a n k v. Escolin, 56 SCRA 266.
6Picardal v. Lladas, 21 SCRA 1483 (1967); Section 2, Rule 73 of t h e N e w Rules
of Court.
uted in accordance with the laws of intestate succession in the Spe-cial Proceedings.3
Thus, when the marriage is dissolved by the death of the hus-band or wife, the community property shall be inventoried, adminis-tered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse.4
In the settlement proceedings of the estate of the deceased spouse, the entire conjugal partnership property of the marriage and not just the one-half portion belonging to the deceased, is under administration.5
SEC. 3. Process. — In the exercise of probate jurisdic-tion, Courts of First Instance may issue warrants and proc-ess necproc-essary to compel the attendance of witnproc-esses or to carry into effect their orders and judgments, and all other powers granted them by law. If a person does not perform an order or judgment rendered by a court in the exercise of its probate jurisdiction, it may issue a warrant for the appre-hension and imprisonment of such person until he performs such order or judgment, or is released.
SEC. 4. Presumption of death. — For purposes of settle-ment of his estate, a person shall be presumed dead if absent and unheard from for the periods fixed in the Civil Code. But if such person proves to be alive, he shall be entitled to the balance of his estate after payment of all his debts. The bal-ance may be recovered by motion in the same proceeding.
NOTES AND CASES:
1. Related Civil Code Provisions
Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.
Rule 73 S E T T L E M E N T OF ESTATE OF D E C E A S E D P E R S O N S Sees. 3-4 V E N U E A N D PROCESS
The absentee shall not be presumed dead for the purpose of opening his succession till after an absence often years. If he disap-peared after the age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may be opened. Art. 391. The following shall be presumed dead for all pur-poses, including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aero plane which is missing, who has not been heard of for four years since the loss of the vessel or aero plane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.
2. No Independent Action For Declaration of Pre-sumption of Death
The disputable presumption established by the rules of evi-dence that a person not heard from in seven years is dead, may arise and be invoked either in an action or in a special proceeding , which is tried or heard by, and submitted for decision to, a competent court. Independently of such an action or special proceeding, the presump-tion of death cannot be invoked nor can it be made the subject of an action or special proceeding.1
3. Presumption of Death under Article 391 Must Yield to Preponderance of Evidence
The issue is whether or not, the missing person should already be considered as dead or should still wait for four years before he may be presumed dead. The Supreme Court cited several cases where due to circumstances a person was already considered as dead with-out waiting for the period to expire and be presumed dead.2
7 n re Nicolai Szatrow, 81 Phil. 461; See Related Disquisition in Rule 107. "Eastern Shipping Lines v. Lucero, 124 SCRA 1983.
SUMMARY SETTLEMENT OF ESTATES
SECTION 1. Extra judicial settlement by agreement be-tween heirs. — If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. The parties to an extra judicial settlement, whether by public instrument or by stipulation in a pending action for parti-tion, or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under sec-tion 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent.
The fact of the extra judicial settlement or administra-tion shall be published in a newspaper of general circula-tion in the manner provided in the next succeeding seccircula-tion; but no extra judicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.
Rule 74 SUMMARY S E T T L E M E N T OF ESTATES Sec. 1
NOTES AND CASES:
1. General rule: Judicial Administration; Exception: Summary Settlement of Estate
The general rule is that when a person dies leaving property, the same should be judicially administered and the competent court should appoint a qualified administrator, in the order established in Section 6, Rule 78, in case the deceased left no will, or in case he had left one, should he fail to name an executor therein.1 An exception to
this rule is established in Section 1 of Rule 74. Under this exception, when all the heirs are of lawful age and there are no debts due from the estate, they may agree in writing to partition the property with-out instituting the judicial administration or applying for the ap-pointment of an administrator.
2. Different Modes of Settlement of Estate of Deceased Person
While the law provides that the rights to succession are trans-mitted from the moment of death of the decedent,2 the modes of
transmission may either be testamentary, legal or intestate, or mixed.3
(a) Testamentary succession is that which results from the designation of an heir, made in a will executed in the form pre-scribed by law,4 while mixed succession is that effected partly by
will and partly by operation of law.5
The proceedings for the settlement of the estate of a deceased person may be testate, if there is a will, or intestate if there is none, or the heirs may resort to an ordinary action for partition, or without going to court may extrajudicially settle the estate of the deceased.
The rules provide for the manner in effecting these different modes of succession. The different modes for the settlement of the estate of a deceased person under the Revised Rules of Court, are as follows:
1. Extrajudicial settlement of Estate (Section 1, Rule 74);
'Utulo v. Pasion Vda. de Garcia, 66 Phil. 303 (1938).
2Article 777, Civil Code of the Philippines.
3Art. 778, ibid.
4Art. 779, ibid.
2. Partition (Rule 69);
3. Summary Settlement of Estates of Small Value (Sec. 3,
Rule 74);
4. Probate of Will (Rules 75 to 79);
5. Petition for letters of Administration in cases of intestacy.
(Rule 79)
3. Judicial Administration Not Favored
There is nothing which prohibits the heirs from instituting special proceeding for the administration of the intestate estate, if they cannot agree in the extra judicial partition and apportionment of the same.6 When a person dies without leaving pending
obliga-tions to be paid, his heirs, whether of age or not, are not bound to submit the property to a judicial administration, which is always long and costly, or to apply for the appointment of an administrator by the Court. In such case the judicial administration and the ap-pointment of an administrator are superfluous and unnecessary pro-ceedings.7
When the heirs are all of lawful age and there are no debts there is no reason why the estate should be burdened with the cost and expenses of an administrator. The administrator has no right to intervene in any way whatsoever in the division of the estate among the heirs when they are adults and when there are no debts against the estate.8
4. There Must Be Good Reason to Warrant Judicial Administration
Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligations, if they do not desire to
6Orozco v. Garcia, 50 Phil. 74.
7U t u l o v. Pasion de Garcia, supra; Fule v. Fule, 46 Phil. 317 (1924); Baldemor v.
Malangyaon, 34 Phil. 367 (1916); Bondad v. Bondad, 34 Phil. 2 3 2 (1916); Ilustre v. Alaras; Frondora, 17 Phil. 321 (1910); Pereira v. Court of Appeals, J u n e 2 0 , 1 9 8 9 , 1 7 4 SCRA 154.
"Utulo v. Garcia, supra, citing Ilustre v. Alaras Frondosa, supra; Bondad v. Bondad, 34 Phil. 232 and Baldemor v. Malangyaon, 34 Phil. 367.
