PART
II
SPECIAL PROCEEDINGS
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 following cases:
(a)
Settlement of estate of deceased persons;
(b)
Escheat;
(c)
Guardianship and custody of children;
(d)
Trustees;
(e)
Adoption;
(f)
Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h)
Habeas corpus;
(i)
Change of name;
(j)
Voluntary dissolution of corporations;
(k)
Judicial approval of voluntary recognition of minor natural children;
(l)
Constitution of family home;
(m)
Declaration of absence and death;
(n)
Cancellation or correction of entries in the civil registry.
SECTION
2. Applicability of rules of civil actions. — In the absence
of special provisions, the rules provided for in ordinary actions
shall be, as far as practicable, applicable in special proceedings.
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 province in which he had estate. The court first
taking cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other courts.
The jurisdiction assumed by a court, so far as it depends on the
place of residence of the decedent, or of the location of his estate,
shall not be contested in a suit or proceeding, except in an appeal
from that court, in the original case, or when the want of jurisdiction
appears on the record.
SECTION
2. Where estate settled upon dissolution of marriage. — When
the marriage is dissolved by the death of the husband or wife, the
community property shall be inventoried, administered, and liquidated,
and the debts thereof paid, in the testate or intestate proceedings
of the deceased spouse. If both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate proceedings
of either.
SECTION
3. Process. — In the exercise of probate jurisdiction, Court
of First Instance may issue warrants and process necessary to compel
the attendance of witnesses or to carry into effect their orders
and judgments, and all other powers granted them by law. If a person
does not perform an order or judgment rendered by a court in the
exercise of its probate jurisdiction, it may issue a warrant for
the apprehension and imprisonment of such person until he performs
such order or judgment, or is released.
SECTION
4. Presumption of death. — For purposes of settlement of his
estate, a person shall be presumed dead if absent and unheard from
for the periods fixed in the Civil Code. But if such person proves
to be alive, he shall be entitled to the balance of his estate after
payment of all his debts. The balance may be recovered by motion
in the same proceeding.
RULE
74
Summary Settlement of Estates
SECTION
1. Extrajudicial settlement by agreement between heirs. —
If the decedent left no will and no debts and the heirs are all
of age, or the minors are represented by their judicial or legal
representatives duly authorized for the purpose, the parties may,
without securing letters of administration, divide the estate among
themselves as they see fit by means of a public instrument filed
in the office of the register of deeds, and should they disagree,
they may do so in an ordinary action of partition. If there is only
one heir, he may adjudicate to himself the entire estate by means
of an affidavit filed in the office of the register of deeds. The
parties to an extrajudicial settlement, whether by public instrument
or by stipulation in a pending action for partition, or the sole
heir who adjudicates the entire estate to himself by means of an
affidavit shall file, simultaneously with and as a condition precedent
to the filing of the public instrument, or stipulation in the action
for partition, or of the affidavit in the office of the register
of deeds, a bond with the said register of deeds, in an amount equivalent
to the value of the personal property involved as certified to under
oath by the parties concerned and conditioned upon the payment of
any just claim that may be filed under section 4 of this rule. It
shall be presumed that the decedent left no debts if no creditor
files a petition for letters of administration within two (2) years
after the death of the decedent.
The
fact of the extrajudicial settlement or administration shall be
published in a newspaper of general circulation in the manner provided
in the next succeeding section; but no extrajudicial settlement
shall be binding upon any person who has not participated therein
or had no notice thereof.
SECTION
2. Summary settlement of estates of small value. — Whenever
the gross value of the estate of a deceased person, whether he died
testate or intestate, does not exceed ten thousand pesos, and that
fact is made to appear to the Court of First Instance having jurisdiction
of the estate by the petition of an interested person and upon hearing,
which shall be held not less than (1) month nor more than three
(3) months from the date of the last publication of a notice which
shall be published once a week for three (3) consecutive weeks in
a newspaper of general circulation in the province, and after such
other notice to interested persons as the court may direct, the
court may proceed summarily, without the appointment of an executor
or administrator, and without delay, to grant, if proper, allowance
of the will, if any there be, to determine who are the persons legally
entitled to participate in the estate, and to apportion and divide
it among them after the payment of such debts of the estate as the
court shall then find to be due; and such persons, in their own
right, if they are of lawful age and legal capacity, or by their
guardians or trustees legally appointed and qualified, if otherwise,
shall thereupon be entitled to receive and enter into the possession
of the portions of the estate so awarded to them respectively. The
court shall make such order as may be just respecting the costs
of the proceedings, and all orders and judgments made or rendered
in the course thereof shall be recorded in the office of the clerk,
and the order of partition or award, if it involves real estate,
shall be recorded in the proper register's office.
SECTION
3. Bond to be filed by distributees. — The court, before allowing
a partition in accordance with the provisions of the preceding section,
may require the distributees, if property other than real is to
be distributed, to file a bond in an amount to be fixed by court,
conditioned for the payment of any just claim which may be filed
under the next succeeding section.
SECTION
4. Liability of distributees and estate. — If it shall appear
at any time within two (2) years after the settlement and distribution
of an estate in accordance with the provisions of either of the
first two sections of this rule, that an heir or other person has
been unduly deprived of his lawful participation in the estate,
such heir or such other person may compel the settlement of the
estate in the courts in the manner hereinafter provided for the
purpose of satisfying such lawful participation. And if within the
same time of two (2) years, it shall appear that there are debts
outstanding against the estate which have not been paid, or that
an heir or other person has been unduly deprived of his lawful participation
payable in money, the court having jurisdiction of the estate may,
by order for that purpose, after hearing, settle the amount of such
debts or lawful participation and order how much and in what manner
each distributee shall contribute in the payment thereof, and may
issue execution, if circumstances require, against the bond provided
in the preceding section or against the real estate belonging to
the deceased, or both. Such bond and such real estate shall remain
charged with a liability to creditors, heirs, or other persons for
the full period of two (2) years after such distribution, notwithstanding
any transfers of real estate that may have been made.
SECTION
5. Period for claim of minor or incapacitated person. — If
on the date of the expiration of the period of two (2) years prescribed
in the preceding section the person authorized to file a claim is
a minor or mentally incapacitated, or is in prison or outside the
Philippines, he may present his claim within one (1) year after
such disability is removed.
RULE
75
Production of Will. Allowance of Will Necessary
SECTION
1. Allowance necessary. Conclusive as to execution. — No will
shall pass either real or personal estate unless it is proved and
allowed in the proper court. Subject to the right of appeal, such
allowance of the will shall be conclusive as to its due execution.
SECTION
2. Custodian of will to deliver. — The person who has custody
of a will shall, within twenty (20) days after he knows of the death
of the testator, deliver the will to the court having jurisdiction,
or to the executor named in the will.
SECTION
3. Executor to present will and accept or refuse trust. —
A person named as executor in a will shall, within twenty (20) days
after he knows of the death of the testator, or within twenty (20)
days after he knows that he is named executor if he obtained such
knowledge after the death of the testator, present such will to
the court having jurisdiction, unless the will has reached the court
in any other manner, and shall, within such period, signify to the
court in writing his acceptance of the trust or his refusal to accept
it.
SECTION
4. Custodian and executor subject to fine for neglect. — A
person who neglects any of the duties required in the two last preceding
sections without excuse satisfactory to the court shall be fined
not exceeding two thousand pesos.
SECTION 5. Person retaining will may be committed. — A person
having custody of a will after the death of the testator who neglects
without reasonable cause to deliver the same, when ordered so to
do, to the court having jurisdiction, may be committed to prison
and there kept until he delivers the will.
RULE
76
Allowance or Disallowance of Will
SECTION
1. Who may petition for the allowance of will. — Any executor,
devisee, or legatee named in a will, or any other person interested
in the estate, may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed,
whether the same be in his possession or not, or is lost or destroyed.
The
testator himself may, during his lifetime, petition the court for
the allowance of his will.
SECTION
2. Contents of petition. — A petition for the allowance of
a will must show, so far as known to the petitioner:
(a)
The jurisdictional facts;
(b)
The names, ages, and residences of the heirs, legatees, and devisees
of the testator or decedent;
(c)
The probable value and character of the property of the estate;
(d)
The name of the person for whom letters are prayed;
(e)
If the will has not been delivered to the court, the name of the
person having custody of it.
But
no defect in the petition shall render void the allowance of the
will, or the issuance of letters testamentary or of administration
with the will annexed.
SECTION
3. Court to appoint time for proving will. Notice thereof to be
published. — When a will is delivered to, or a petition for
the allowance of a will is filed in, the court having jurisdiction,
such court shall fix a time and place for proving the will when
all concerned may appear to contest the allowance thereof, and shall
cause notice of such time and place to be published three (3) weeks
successively, previous to the time appointed, in a newspaper of
general circulation in the province.
But
no newspaper publication shall be made where the petition for probate
has been filed by the testator himself.
SECTION
4. Heirs, devisees, legatees, and executors to be notified by mail
or personally. — The court shall also cause copies of the
notice of the time and place fixed for proving the will to be addressed
to the designated or other known heirs, legatees, and devisees of
the testator resident in the Philippines at their places of residence,
and deposited in the post office with the postage thereon prepaid
at least twenty (20) days before the hearing, if such places of
residence be known. A copy of the notice must in like manner be
mailed to the person named as executor, if he be not the petitioner;
also, to any person named as co-executor not petitioning, if their
places of residence be known. Personal service of copies of the
notice at least ten (10) days before the day of hearing shall be
equivalent to mailing.
If
the testator asks for the allowance of his own will, notice shall
be sent only to his compulsory heirs.
SECTION
5. Proof at hearing. What sufficient in absence of contest. —
At the hearing compliance with the provisions of the last two preceding
sections must be shown before the introduction of testimony in support
of the will. All such testimony shall be taken under oath and reduced
to writing. If no person appears to contest the allowance of the
will, the court may grant allowance thereof on the testimony of
one of the subscribing witnesses only, if such witness testify that
the will was executed as is required by law.
In
the case of a holographic will, it shall be necessary that at least
one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting
of the testator. In the absence of any such competent witness, and
if the court deem it necessary, expert testimony may be resorted
to.
SECTION
6. Proof of lost or destroyed will. Certificate thereupon. —
No will shall be proved as a lost or destroyed will unless the execution
and validity of the same be established, and the will is proved
to have been in existence at the time of the death of the testator,
or is shown to have been fraudulently or accidentally destroyed
in the lifetime of the testator without his knowledge, nor unless
its provisions are clearly and distinctly proved by at least two
(2) credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under
the seal of the court, and the certificate must be filed and recorded
as other wills are filed and recorded.
SECTION
7. Proof when witnesses do not reside in province. — If it
appears at the time fixed for the hearing that none of the subscribing
witnesses resides in the province, but that the deposition of one
or more of them can be taken elsewhere, the court may, on motion,
direct it to be taken, and may authorize a photographic copy of
the will to be made and to be presented to the witness on his examination,
who may be asked the same questions with respect to it, and to the
handwriting of the testator and others, as would be pertinent and
competent if the original will were present.
SECTION
8. Proof when witnesses dead or insane or do not reside in the Philippines.
— If it appears at the time fixed for the hearing that the
subscribing witnesses are dead or insane, or that none of them resides
in the Philippines, the court may admit the testimony of other witnesses
to prove the sanity of the testator, and the due execution of the
will; and as evidence of the execution of the will, it may admit
proof of the handwriting of the testator and of the subscribing
witnesses, or of any of them.
SECTION
9. Grounds for disallowing will. — The will shall be disallowed
in any of the following cases;
(a) If not executed and attested as required by law;
(b)
If the testator was insane, or otherwise mentally incapable to make
a will, at the time of its execution;
(c)
If it was executed under duress, or the influence of fear, or threats;
(d)
If it was procured by undue and improper pressure and influence,
on the part of the beneficiary, or of some other person for his
benefit;
(e)
If the signature of the testator was procured by fraud or trick,
and he did not intend that the instrument should be his will at
the time of fixing his signature thereto.
SECTION
10. Contestant to file grounds of contest. — Anyone appearing
to contest the will must state in writing his grounds for opposing
its allowance, and serve a copy thereof on the petitioner and other
parties interested in the estate.
SECTION
11. Subscribing witnesses produced or accounted for where will contested.
— If the will is contested, all the subscribing witnesses,
and the notary in the case of wills executed under the Civil Code
of the Philippines, if present in the Philippines and not insane,
must be produced and examined, and the death, absence, or insanity
of any of them must be satisfactorily shown to the court. If all
or some of such witnesses are present in the Philippines but outside
the province where the will has been filed, their deposition must
be taken. If any or all of them testify against the due execution
of the will, or do not remember having attested to it, or are otherwise
of doubtful credibility, the will may, nevertheless, be allowed
if the court is satisfied from the testimony of other witnesses
and from all the evidence presented that the will was executed and
attested in the manner required by law.
If
a holographic will is contested, the same shall be allowed if at
least three (3) witnesses who know the handwriting of the testator
explicitly declare that the will and the signature are in the handwriting
of the testator; in the absence of any competent witness, and if
the court deem it necessary, expert testimony may be resorted to.
SECTION
12. Proof where testator petitions for allowance of holographic
will. — Where the testator himself petitions for the probate
of his holographic will and no contest in filed, the fact that he
affirms that the holographic will and the signature are in his own
handwriting, shall be sufficient evidence of the genuineness and
due execution thereof. If the holographic will is contested, the
burden of disproving the genuineness and due execution thereof shall
be on the contestant. The testator may, in his turn, present such
additional proof as may be necessary to rebut the evidence for the
contestant.
SECTION 13. Certificate of allowance attached to proved will. To
be recorded in the Office of Register of Deeds. — If the court
is satisfied, upon proof taken and filed, that the will was duly
executed, and that the testator at the time of its execution was
of sound and disposing mind, and not acting under duress, menace,
and undue influence, or fraud, a certificate of its allowance, signed
by the judge, and attested by the seal of the court shall be attached
to the will and the will and certificate filed and recorded by the
clerk. Attested copies of the will devising real estate and of certificate
of allowance thereof, shall be recorded in the register of deeds
of the province in which the lands lie.
RULE
77
Allowance of Will Proved Outside of the Philipines and Administration
of Estate Thereunder
SECTION
1. Will proved outside the Philippines may be allowed here. —
Wills proved and allowed in a foreign country, according to the
laws of such country, may be allowed, filed, and recorded by the
proper Court of First Instance in the Philippines.
SECTION
2. Notice of hearing for allowance. — When a copy of such
will and of the order or decree of the allowance thereof, both duly
authenticated, are filed with a petition for allowance in the Philippines,
by the executor or other person interested, in the court having
jurisdiction, such court shall fix a time and place for the hearing,
and cause notice thereof to be given as in case of an original will
presented for allowance.
SECTION
3. When will allowed, and effect thereof . — If it appears
at the hearing that the will should be allowed in the Philippines,
the court shall so allow it, and a certificate of its allowance,
signed by the judge, and attested by the seal of the court, to which
shall be attached a copy of the will, shall be filed and recorded
by the clerk, and the will shall have the same effect as if originally
proved and allowed in such court.
SECTION
4. Estate, how administered. — When a will is thus allowed,
the court shall grant letters testamentary, or letters of administration
with the will annexed, and such letters testamentary or of administration,
shall extend to all the estate of the testator in the Philippines.
Such estate, after the payment of just debts and expenses of administration,
shall be disposed of according to such will, so far as such will
may operate upon it; and the residue, if any, shall be disposed
of as is provided by law in cases of estates in the Philippines
belonging to persons who are inhabitants of another state or country.
RULE
78
Letters Testamentary and of Administration, When and To Whom Issued
SECTION
1. Who are incompetent to serve as executors or administrators.
— No person is competent to serve as executor or administrator
who:
(a)
Is a minor;
(b)
Is not a resident of the Philippines; and
(c)
Is in the opinion of the court unfit to execute the duties of the
trust by reason of drunkenness, improvidence, or want of understanding
or integrity, or by reason of conviction of an offense involving
moral turpitude.
SECTION
2. Executor of executor not to administer estate. — The executor
of an executor shall not, as such, administer the estate of the
first testator.
SECTION
3. Married women may serve. — A married woman may serve as
executrix or administratrix, and the marriage of a single woman
shall not affect her authority so to serve under a previous appointment.
SECTION
4. Letters testamentary issued when will allowed. — When a
will has been proved and allowed, the court shall issue letters
testamentary thereon to the person named as executor therein, if
he is competent, accepts the trust, and gives bond as required by
these rules.
SECTION
5. Where some coexecutors disqualified others may act. — When
all of the executors named in a will can not act because of incompetency,
refusal to accept the trust, or failure to give bond, on the part
of one or more of them, letters testamentary may issue to such of
them as are competent, accept and give bond, and they may perform
the duties and discharge the trust required by the will.
SECTION
6. When and to whom letters of administration granted. — If
no executor is named in the will, or the executor or executors are
incompetent, refuse the trust, or fail to give bond, or a person
dies intestate, administration shall be granted:
(a)
To the surviving husband or wife, as the case may be, or next of
kin, or both, in the discretion of the court, or to such person
as such surviving husband or wife, or next of kin, requests to have
appointed, if competent and willing to serve;
(b)
If such surviving husband or wife, as the case may be, or next of
kin, or the person selected by them, be incompetent or unwilling,
or if the husband or widow, or next of kin, neglects for thirty
(30) days after the death of the person to apply for administration
or to request that administration be granted to some other person,
it may be granted to one or more of the principal creditors, if
competent and willing to serve;
(c)
If there is no such creditor competent and willing to serve, it
may be granted to such other person as the court may select.
RULE
79
Opposing Issuance of Letters Testamentary. Petition and Contest
for Letters of Administration
SECTION
1. Opposition to issuance of letters testamentary. Simultaneous
petition for administration. — Any person interested in a
will may state in writing the grounds why letters testamentary should
not issue to the persons named therein as executors, or any of them,
and the court, after hearing upon notice, shall pass upon the sufficiency
of such grounds. A petition may, at the same time, be filed for
letters of administration with the will annexed.
SECTION
2. Contents of petition for letters of administration. — A
petition for letters of administration must be filed by an interested
person and must show, so far as known to the petitioner:
(a)
The jurisdictional facts;
(b)
The names, ages, and residences of the heirs, and the names and
residences of the creditors, of the decedent
(c)
The probable value and character of the property of the estate;
(d)
The name of the person for whom letters of administration are prayed.
But
no defect on the petition shall render void the issuance of letters
of administration.
SECTION
3. Court to set time for hearing. Notice thereof . — When
a petition for letters of administration is filed in the court having
jurisdiction, such court shall fix a time and place for hearing
the petition, and shall cause notice thereof to be given to the
known heirs and creditors of the decedent, and to any other persons
believed to have an interest in the estate, in the manner provided
in section 3 and 4 of Rule 76.
SECTION
4. Opposition to petition for administration. — Any interested
person may, by filing a written opposition, contest the petition
on the ground of the incompetency of the person for whom letters
are prayed therein, or on the ground of the contestant's own right
to the administration, and may pray that letters issue to himself,
or to any competent person or persons named in the opposition.
SECTION
5. Hearing and order for letters to issue. — At the hearing
of the petition, it must first be shown that notice has been given
as hereinabove required, and thereafter the court shall hear the
proofs of the parties in support of their respective allegations,
and if satisfied that the decedent left no will, or that there is
no competent and willing executor, it shall order the issuance of
letters of administration to the party best entitled thereto.
SECTION
6. When letters of administration granted to any applicant. —
Letters of administration may be granted to any qualified applicant,
though it appears that there are other competent persons having
better right to the administration, if such persons fail to appear
when notified and claim the issuance of letters to themselves.
RULE
80
Special Administrator
SECTION
1. Appointment of special administrator. — When there is delay
in granting letters testamentary or of administration by any cause
including an appeal from the allowance or disallowance of a will,
the court may appoint a special administrator to take possession
and charge of the estate of the deceased until the questions causing
the delay are decided and executors or administrators appointed.
SECTION
2. Powers and duties of special administrator. — Such special
administrator shall take possession and charge of the goods, chattels,
rights, credits, and estate of the deceased and preserve the same
for the executor or administrator afterwards appointed, and for
that purpose may commence and maintain suits as administrator. He
may sell only such perishable and other property as the court orders
sold. A special administrator shall not be liable to pay any debts
of the deceased unless so ordered by the court.
SECTION
3. When powers of special administrator cease. Transfer of effects.
Pending suits. — When letters testamentary or of administration
are granted on the estate of the deceased, the powers of the special
administrator shall cease, and he shall forthwith deliver to the
executor or administrator the goods, chattels, money, and estate
of the deceased in his hands. The executor or administrator may
prosecute to final judgment suits commenced by such special administrator.
RULE
81
Bonds of Executors and Administrators
SECTION
1. Bond to be given before issuance of letters. Amount. Conditions.
— Before an executor or administrator enters upon the execution
of his trust, and letters testamentary or of administration issue,
he shall give a bond, in such sum as the court directs, conditioned
as follows:
(a)
To make and return to the court, within three (3) months, a true
and complete inventory of all goods, chattels, rights, credits,
and estate of the deceased which shall come to his possession or
knowledge or to the possession of any other person for him;
(b)
To administer according to these rules, and, if an executor, according
to the will of the testator, all goods, chattels, rights, credits,
and estate which shall at any time come to his possession or to
the possession of any other person for him, and from the proceeds
to pay and discharge all debts, legacies, and charges on the same,
or such dividends thereon as shall be decreed by the court;
(c)
To render a true and just account of his administration to the court
within one (1) year, and at any other time when required by the
court;
(d)
To perform all orders of the court by him to be performed.
SECTION
2. Bond of executor where directed in will. When further bond required.
— If the testator in his will directs that the executor serve
without bond, or with only his individual bond, he may be allowed
by the court to give bond in such sum and with such surety as the
court approves conditioned only to pay the debts of the testator;
but the court may require of the executor a further bond in case
of a change in his circumstances, or for other sufficient cause,
with the conditions named in the last preceding section.
SECTION
3. Bonds of joint executors and administrators. — When two
or more persons are appointed executors or administrators the court
may take a separate bond from each, or a joint bond from all.
SECTION
4. Bond of special administrator. — A special administrator
before entering upon the duties of his trust shall give a bond,
in such sum as the court directs, conditioned that he will make
and return a true inventory of the goods, chattels, rights, credits,
and estate of the deceased which come to his possession or knowledge,
and that he will truly account for such as are received by him when
required by the court, and will deliver the same to the person appointed
executor or administrator, or to such other person as may be authorized
to receive them.
RULE
82
Revocation of Administration, Death, Resignation, and Removal of
Executors and Administrators
SECTION
1. Administration revoked if will discovered. Proceedings thereupon.
— If after letters of administration have been granted on
the estate of a decedent as if he had died intestate, his will is
proved and allowed by the court, the letters of administration shall
be revoked and all powers thereunder cease, and the administrator
shall forthwith surrender the letters to the court, and render his
account within such time as the court directs. Proceedings for the
issuance of letters testamentary or of administration under the
will shall be as hereinbefore provided.
SECTION
2. Court may remove or accept resignation of executor or administrator.
Proceedings upon death, resignation, or removal. — If an executor
or administrator neglects to render his account and settle the estate
according to law, or to perform an order or judgment of the court,
or a duty expressly provided by these rules, or absconds, or becomes
insane, or otherwise incapable or unsuitable to discharge the trust,
the court may remove him, or, in its discretion, may permit him
to resign. When an executor or administrator dies, resigns, or is
removed the remaining executor or administrator may administer the
trust alone, unless the court grants letters to someone to act with
him. If there is no remaining executor or administrator, administration
may be granted to any suitable person.
SECTION
3. Acts before revocation, resignation, or removal to be valid.
— The lawful acts of an executor or administrator before the
revocation of his letters testamentary or of administration, or
before his resignation or removal, shall have the like validity
as if there had been no such revocation, resignation, or removal.
SECTION
4. Powers of new executor or administrator. Renewal of license to
sell real estate. — The person to whom letters testamentary
or of administration are granted after the revocation of former
letters, or the death, resignation, or removal of a former executor
or administrator, shall have the like powers to collect and settle
the estate not administered that the former executor or administrator
had, and may prosecute or defend actions commenced by or against
the former executor or administrator, and have execution on judgments
recovered in the name of such former executor or administrator.
An authority granted by the court to the former executor or administrator
for the sale or mortgage of real estate may be renewed in favor
of such person without further notice or hearing.
RULE
83
Inventory and Appraisal. Provision for Support of Family
SECTION
1. Inventory and appraisal to be returned within three months. —
When three (3) months after his appointment every executor or administrator
shall return to the court a true inventory and appraisal of all
the real and personal estate of the deceased which has come into
his possession or knowledge. In the appraisement of such estate,
the court may order one or more of the inheritance tax appraisers
to give his or their assistance.
SECTION
2. Certain articles not to be inventoried. — The wearing apparel
of the surviving husband or wife and minor children, the marriage
bed and bedding, and such provisions and other articles as will
necessarily be consumed in the subsistence of the family of the
deceased, under the direction of the court, shall not be considered
as assets, nor administered as such, and shall not be included in
the inventory.
SECTION
3. Allowance to widow and family. — The widow and minor or
incapacitated children of a deceased person, during the settlement
of the estate, shall receive therefrom, under the direction of the
court, such allowance as are provided by law.
RULE
84
General Powers and Duties of Executors and Administrators
SECTION
1. Executor or administrator to have access to partnership books
and property. How right enforced. — The executor or administrator
of the estate of a deceased partner shall at all times have access
to, and may examine and take copies of, books and papers relating
to the partnership business, and may examine and make invoices of
the property belonging to such partnership; and the surviving partner
or partners, on request, shall exhibit to him all such books, papers,
and property in their hands or control. On the written application
of such executor or administrator, the court having jurisdiction
of the estate may order any such surviving partner or partners to
freely permit the exercise of the rights, and to exhibit the books,
papers, and property, as in this section provided, and may punish
any partner failing to do so for contempt.
SECTION
2. Executor or administrator to keep buildings in repair. —
An executor or administrator shall maintain in tenantable repair
the houses and other structures and fences belonging to the estate,
and deliver the same in such repair to the heirs or devisees when
directed so to do by the court.
SECTION
3. Executor or administrator to retain whole estate to pay debts,
and to administer estate not willed. — An executor or administrator
shall have the right to the possession and management of the real
as well as the personal estate of the deceased so long as it is
necessary for the payment of the debts and the expenses of administration.
RULE
85
Accountability and Compensation of Executors and Administrators
SECTION
1. Executor or administrator chargeable with all estate and income.
— Except as otherwise expressly provided in the following
sections, every executor or administrator is chargeable in his account
with the whole of the estate of the deceased which has come into
his possession, at the value of the appraisement contained in the
inventory; with all the interest, profit, and income of such estate;
and with the proceeds of so much of the estate as is sold by him,
at the price at which it was sold.
SECTION
2. Not to profit by increase or lose by decrease in value. —
No executor or administrator shall profit by the increase, or suffer
loss by the decrease or destruction, without his fault, of any part
of the estate. He must account for the excess when he sells any
part of the estate for more than the appraisement, and if any is
sold for less than the appraisement, he is not responsible for the
loss, if the sale has been justly made. If he settles any claim
against the estate for less than its nominal value, he is entitled
to charge in his account only the amount he actually paid on the
settlement.
SECTION
3. When not accountable for debts due estate. — No executor
or administrator shall be accountable for debts due the deceased
which remain uncollected without his fault.
SECTION
4. Accountable for income from realty used by him. — If the
executor or administrator uses or occupies any part of the real
estate himself, he shall account for it as may be agreed upon between
him and the parties interested, or adjusted by the court with their
assent; and if the parties do not agree upon the sum to be allowed,
the same may be ascertained by the court, whose determination in
this respect shall be final.
SECTION
5. Accountable if he neglects or delays to raise or pay money. —
When an executor or administrator neglects or unreasonably delays
to raise money, by collecting the debts or selling the real or personal
estate of the deceased, or neglects to pay over the money he has
in his hands, and the value of the estate is thereby lessened or
unnecessary cost or interest accrues, or the persons interested
suffer loss, the same shall be deemed waste and the damage sustained
may be charged and allowed against him in his account, and he shall
be liable therefor on his bond.
SECTION
6. When allowed money paid as costs. — The amount paid by
an executor or administrator for costs awarded against him shall
be allowed in his administration account, unless it appears that
the action or proceeding in which the costs are taxed was prosecuted
or resisted without just cause, and not in good faith.
SECTION
7. What expenses and fees allowed executor or administrator. Not
to charge for services as attorney. Compensation provided by will
controls unless renounced.— An executor or administrator shall
be allowed the necessary expenses in the care, management, and settlement
of the estate, and for his services, four pesos per day for the
time actually and necessarily employed, or a commission upon the
value of so much of the estate as comes into his possession and
is finally disposed of by him in the payment of debts, expenses,
legacies, or distributive shares, or by delivery to heirs or devisees,
of two per centum of the first five thousand pesos of such value,
one per centum of so much of such value as exceeds five thousand
pesos and does not exceed thirty thousand pesos, one-half per centum
of so much of such value as exceeds thirty thousand pesos and does
not exceed one hundred thousand pesos and one-quarter per centum
of so much of such value as exceeds one hundred thousand pesos.
But in any special case, where the estate is large, and the settlement
has been attended with great difficulty, and has required a high
degree or capacity on the part of the executor or administrator,
a greater sum may be allowed. If objection to the fees allowed be
taken, the allowance may be re-examined on appeal.
If there are two or more executors or administrators, the compensation
shall be apportioned among them by the court according to the services
actually rendered by them respectively.
When the executor or administrator is an attorney, he shall not
charge against the estate any professional fees for legal services
rendered by him.
When
the deceased by will makes some other provision for the compensation
of his executor, that provision shall be a full satisfaction for
his services unless by a written instrument filed in the court he
renounces all claim to the compensation provided by the will.
SECTION
8. When executor or administrator to render account. — Every
executor or administrator shall render an account of his administration
within one (1) year from the time of receiving letters testamentary
or of administration, unless the court otherwise directs because
of extensions of time for presenting claims against, or paying the
debts of, the estate, or for disposing of the estate; and he shall
render such further accounts as the court may require until the
estate is wholly settled.
SECTION
9. Examination on oath with respect to account. — The court
may examine the executor or administrator upon oath with respect
to every matter relating to any account rendered by him, and shall
so examine him as to the correctness of his account before the same
is allowed, except when no objection is made to the allowance of
the account and its correctness is satisfactorily established by
competent proof. The heirs, legatees, distributees, and creditors
of the estate shall have the same privilege as the executor or administrator
of being examined on oath of any matter relating to an administration
account.
SECTION
10. Account to be settled on notice. — Before the account
of an executor or administrator is allowed, notice shall be given
to persons interested of the time and place of examining and allowing
the same; and such notice may be given personally to such persons
interested or by advertisement in a newspaper or newspapers, or
both, as the court directs.
SECTION
11. Surety on bond may be party to accounting. — Upon the
settlement of the account of an executor or administrator, a person
liable as surety in respect to such account may, upon application,
be admitted as party to such accounting.
RULE
86
Claims Against Estate
SECTION
1. Notice to creditors to be issued by court. — Immediately
after granting letters testamentary or of administration, the court
shall issue a notice requiring all persons having money claims against
the decedent to file them in the office of the clerk of said court.
SECTION
2. Time within which claims shall be filed. — In the notice
provided in the preceding section, the court shall state the time
for the filing of claims against the estate, which shall not be
more than twelve (12) nor less than six (6) months after the date
of the first publication of the notice. However, at any time before
an order of distribution is entered, on application of a creditor
who has failed to file his claim within the time previously limited,
the court may, for cause shown and on such terms as are equitable,
allow such claim to be filed within a time not exceeding one (1)
month.
SECTION
3. Publication of notice to creditors. — Every executor or
administrator shall, immediately after the notice to creditors is
issued, cause the same to be published three (3) weeks successively
in a newspaper of general circulation in the province, and to be
posted for the same period in four public places in the province
and in two public places in the municipality where the decedent
last resided.
SECTION
4. Filing copy of printed notice. — Within ten (10) days after
the notice has been published and posted in accordance with the
preceding section, the executor or administrator shall file or cause
to be filed in the court a printed copy of the notice accompanied
with an affidavit setting forth the dates of the first and last
publication thereof and the name of the newspaper in which the same
is printed.
SECTION
5. Claims which must be filed under the notice. If not filed, barred;
exceptions. — All claims for money against the decedent, arising
from contract, express or implied, whether the same be due, not
due, or contingent, all claims for funeral expenses and expenses
for the last sickness of the decedent, and judgment for money against
the decedent, must be filed within the time limited in the notice;
otherwise they are barred forever, except that they may be set forth
as counterclaims in any action that the executor or administrator
may bring against the claimants. Where an executor or administrator
commences an action, or prosecutes an action already commenced by
the deceased in his lifetime, the debtor may set forth by answer
the claims he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual claims
may be set off against each other in such action; and if final judgment
is rendered in favor of the defendant, the amount so determined
shall be considered the true balance against the estate, as though
the claim had been presented directly before the court in the administration
proceedings. Claims not yet due, or contingent, may be approved
at their present value.
SECTION
6. Solidary obligation of decedent. — Where the obligation
of the decedent is solidary with another debtor, the claim shall
be filed against the decedent as if he were the only debtor, without
prejudice to the right of the estate to recover contribution form
the other debtor. In a joint obligation of the decedent, the claim
shall be confined to the portion belonging to him.
SECTION
7. Mortgage debt due from estate. — A creditor holding a claim
against the deceased secured by mortgage or other collateral security,
may abandon the security and prosecute his claim in the manner provided
in this rule, and share in the general distribution of the assets
of the estate; or he may foreclose his mortgage or realize upon
his security, by action in court, making the executor or administrator
a party defendant, and if there is a judgment for a deficiency,
after the sale of the mortgaged premises, or the property pledged,
in the foreclosure or other proceeding to realize upon the security,
he may claim his deficiency judgment in the manner provided in the
preceding section; or he may rely upon his mortgage of other security
alone, and foreclose the same at any time within the period of the
statute of limitations, and in that event he shall not be admitted
as a creditor, and shall receive no share in the distribution of
the other assets of the estate; but nothing herein contained shall
prohibit the executor or administrator from redeeming the property
mortgaged or pledged, by paying the debt for which it is held as
security, under the direction of the court, if the court shall adjudge
it to be for the best interest of the estate that such redemption
shall be made.
SECTION
8. Claim of executor or administrator against an estate. —
If the executor or administrator has a claim against the estate
he represents, he shall give notice thereof, in writing, to the
court, and the court shall appoint a special administrator, who
shall, in the adjustment of such claim, have the same power and
be subject to the same liability as the general administrator or
executor in the settlement of other claims. The court may order
the executor or administrator to pay to the special administrator
necessary funds to defend such claim.
SECTION
9. How to file a claim. Contents thereof . Notice to executor or
administrator. — A claim may be filed by delivering the same
with the necessary vouchers to the clerk of court and by serving
a copy thereof on the executor or administrator. If the claim be
founded on a bond, bill, note or any other instrument, the original
need not be filed, but a copy thereof with all indorsements shall
be attached to the claim and filed therewith. On demand, however,
of the executor or administrator, or by order of the court or judge,
the original shall be exhibited, unless it be lost or destroyed,
in which case the claimant must accompany his claim with affidavit
or affidavits containing a copy or particular description of the
instrument and stating its loss or destruction. When the claim is
due, it must be supported by affidavit stating the amount justly
due, that no payments have been made thereon which are not credited,
and that there are no offsets to the same, to the knowledge of the
affiant. If the claim is not due, or is contingent, when filed,
it must also be supported by affidavit stating the particulars thereof.
When the affidavit is made by a person other than the claimant,
he must set forth therein the reason why it is not made by the claimant.
The claim once filed shall be attached to the record of the case
in which the letters testamentary or of administration were issued,
although the court, in its discretion, and as a matter of convenience,
may order all the claims to be collected in a separate folder.
SECTION
10. Answer of executor or administrator. Offsets. — Within
fifteen (15) days after service of a copy of the claim on the executor
or administrator, he shall file his answer admitting or denying
the claim specifically, and setting forth the substance of the matters
which are relied upon to support the admission or denial. If he
has no knowledge sufficient to enable him to admit or deny specifically,
he shall state such want of knowledge. The executor or administrator
in his answer shall allege in offset any claim which the decedent
before death has against the claimant, and his failure to do so
shall bar the claim forever. A copy of the answer shall be served
by the executor or administrator on the claimant. The court in its
discretion may extend the time for filing such answer.
SECTION
11. Disposition of admitted claim. — Any claim admitted entirely
by the executor or administrator shall immediately be submitted
by the clerk to the court who may approve the same without hearing;
but the court, in its discretion, before approving the claim, may
order that known heirs, legatees, or devisees be notified and heard.
If upon hearing, an heir, legatee, or devisee opposes the claim,
the court may, in its discretion, allow him fifteen (15) days to
file an answer to the claim in the manner prescribed in the preceding
section.
SECTION
12. Trial of contested claim. — Upon the filing of an answer
to a claim, or upon the expiration of the time for such filing,
the clerk of court shall set the claim for trial with notice to
both parties. The court may refer the claim to a commissioner.
SECTION
13. Judgment appealable. — The judgment of the court approving
or disapproving a claim, shall be filed with the record of the administration
proceedings with notice to both parties, and is appealable as in
ordinary cases. A judgment against the executor or administrator
shall be that he pay, in due course of administration, the amount
ascertained to be due, and it shall not create any lien upon the
property of the estate, or give to the judgment creditor any priority
of payment.
SECTION
14. Costs. — When the executor or administrator, in his answer,
admits and offers to pay part of a claim, and the claimant refuses
to accept the amount offered in satisfaction of his claim, if he
fails to obtain a more favorable judgment, he cannot recover costs,
but must pay to the executor or administrator costs from the time
of the offer. Where an action commenced against the deceased for
money has been discontinued and the claim embraced therein presented
as in this rule provided, the prevailing party shall be allowed
the costs of his action up to the time of its discontinuance.
RULE
87
Actions By and Against Executors and Administrators
SECTION
1. Actions which may and which may not be brought against executor
or administrator. — No action upon a claim for the recovery
of money or debt or interest thereon shall be commenced against
the executor or administrator; but actions to recover real or personal
property, or an interest therein, from the estate, or to enforce
a lien thereon, and actions to recover damages for an injury to
person or property, real or personal, may be commenced against him.
SECTION
2. Executor or administrator may bring or defend actions which survive.
— For the recovery or protection of the property or rights
of the deceased, an executor or administrator may bring or defend,
in the right of the deceased, actions for causes which survive.
SECTION
3. Heir may not sue until share assigned. — When an executor
or administrator is appointed and assumes the trust, no action to
recover the title or possession of lands or for damages done to
such lands shall be maintained against him by an heir or devisee
until there is an order of the court assigning such lands to such
heir or devisee until the time allowed for paying debts has expired.
SECTION
4. Executor or administrator may compound with debtor. — With
the approval of the court, an executor or administrator may compound
with the debtor of the deceased for a debt due, and may give a discharge
of such debt on receiving a just dividend of the estate of the debtor.
SECTION
5. Mortgage due estate may be foreclosed. — A mortgage belonging
to the estate of a deceased person, as mortgagee or assignee of
the right of a mortgagee, may be foreclosed by the executor or administrator.
SECTION
6. Proceedings when property concealed, embezzled, or fraudulently
conveyed. — If an executor or administrator, heir, legatee,
creditor, or other individual interested in the estate of the deceased,
complains to the court having jurisdiction of the estate that a
person is suspected of having concealed, embezzled, or conveyed
away any of the money, goods, or chattels of the deceased, or that
such person has in his possession or has knowledge of any deed,
conveyance, bond, contract, or other writing which contains evidence
of or tends to disclose the right, title, interest, or claim of
the deceased to real or personal estate, or the last will and testament
of the deceased, the court may cite such suspected person to appear
before it and may examine him on oath on the matter of such complaint;
and if the person so cited refuses to appear, or to answer on such
examination or such interrogatories as are put to him, the court
may punish him for contempt, and may commit him to prison until
he submits to the order of the court. The interrogatories put to
any such person, and his answers thereto, shall be in writing and
shall be filed in the clerk's office.
SECTION
7. Person entrusted with estate compelled to render account. —
The court, on complaint of an executor or administrator, may cite
a person entrusted by an executor or administrator with any part
of the estate of the deceased to appear before it, and may require
such person to render a full account, on oath, of the money, goods,
chattels, bonds, accounts, or other papers belonging to such estate
as came to his possession in trust for such executor or administrator,
and of his proceedings thereon; and if the person so cited refuses
to appear to render such account, the court may punish him for contempt
as having disobeyed a lawful order of the court.
SECTION
8. Embezzlement before letters issued. — If a person, before
the granting of letters testamentary or of administration on the
estate of the deceased, embezzles or alienates any of the money,
goods, chattels, or effects of such deceased, such person shall
be liable to an action in favor of the executor or administrator
of the estate for double the value of the property sold, embezzled,
or alienated, to be recovered for the benefit of such estate.
SECTION
9. Property fraudulently conveyed by deceased may be recovered.
When executor or administrator must bring action. — When there
is deficiency of assets in the hands of an executor or administrator
for the payment of debts and expenses of administration, and the
deceased in his lifetime had conveyed real or personal property,
or a right or interest therein, or a debt or credit, with intent
to defraud his creditors or to avoid any right, debt, or duty; or
had so conveyed such property, right, interest, debt, or credit
that by law the conveyance would be void as against his creditors,
and the subject of the attempted conveyance would be liable to attachment
by any of them in his lifetime, the executor or administrator may
commence and prosecute to final judgment an action for the recovery
of such property, right, interest, debt, or credit for the benefit
of the creditors; but he shall not be bound to commence the action
unless on application of the creditors of the deceased, nor unless
the creditors making the application pay such part of the costs
and expenses, or give security therefor to the executor or administrator,
as the court deems equitable.
SECTION
10. When creditor may bring action. Lien for costs. — When
there is such a deficiency of assets, and the deceased in his lifetime
had made or attempted such a conveyance, as is stated in the last
preceding section, and the executor or administrator has not commenced
the action therein provided for, any creditor of the estate may,
with the permission of the court, commence and prosecute to final
judgment, in the name of the executor or administrator, a like action
for the recovery of the subject of the conveyance or attempted conveyance
for the benefit of the creditors. But the action shall not be commenced
until the creditor has filed in a court a bond executed to the executor
or administrator, in an amount approved by the judge, conditioned
to indemnify the executor or administrator against the costs and
expenses incurred by reason of such action. Such creditor shall
have a lien upon any judgment recovered by him in the action for
such costs and other expenses incurred therein as the court deems
equitable. Where the conveyance or attempted conveyance has been
made by the deceased in his lifetime in favor of the executor or
administrator, the action which a creditor may bring shall be in
the name of all the creditors, and permission of the court and filing
of bond as above prescribed, are not necessary.
RULE
88
Payment of the Debts of the Estate
SECTION
1. Debts paid in full if estate sufficient. — If, after hearing
all the money claims against the estate, and after ascertaining
the amount of such claims, it appears that there are sufficient
assets to pay the debts, the executor or administrator shall pay
the same within the time limited for that purpose.
SECTION
2. Part of estate from which debt paid when provision made by will.
— If the testator makes provision by his will, or designates
the estate to be appropriated for the payment of debts, the expenses
of administration, or the family expenses, they shall be paid according
to the provisions of the will; but if the provisions made by the
will or the estate appropriated, is not sufficient for that purpose,
such part of the estate of the testator, real or personal, as is
not disposed of by will, if any, shall be appropriated for that
purpose.
SECTION
3. Personalty first chargeable for debts, then realty. — The
personal estate of the deceased not disposed of by will shall be
first chargeable with the payment of debts and expenses; and if
said personal estate is not sufficient for that purpose, or its
sale would redound to the detriment of the participants of the estate,
the whole of the real estate not disposed of by will, or so much
thereof as is necessary, may be sold, mortgaged, or otherwise encumbered
for that purpose by the executor or administrator, after obtaining
the authority of the court therefor. Any deficiency shall be met
by contributions in accordance with the provisions of section 6
of this rule.
SECTION
4. Estate to be retained to meet contingent claims. — If the
court is satisfied that a contingent claim duly filed is valid,
it may order the executor or administrator to retain in his hands
sufficient estate to pay such contingent claim when the same becomes
absolute, or, if the estate is insolvent, sufficient to pay a portion
equal to the dividend of the other creditors.
SECTION
5. How contingent claim becoming absolute in two years allowed and
paid. Action against distributees later. — If such contingent
claim becomes absolute and is presented to the court, or to the
executor or administrator, within two (2) years from the time limited
for other creditors to present their claims, it may be allowed by
the court if not disputed by the executor or administrator, and,
if disputed, it may be proved and allowed or disallowed by the court
as the facts may warrant. If the contingent claim is allowed, the
creditor shall receive payment to the same extent as the other creditors
if the estate retained by the executor or administrator is sufficient.
But if the claim is not so presented, after having become absolute,
within said two (2) years, and allowed, the assets retained in the
hands of the executor or administrator, not exhausted in the payment
of claims, shall be distributed by the order of the court to the
persons entitled to the same; but the assets so distributed may
still be applied to the payment of the claim when established, and
the creditor may maintain an action against the distributees to
recover the debt, and such distributees and their estates shall
be liable for the debt in proportion to the estate they have respectively
received from the property of the deceased.
SECTION
6. Court to fix contributive shares where devisees, legatees, or
heirs have been in possession. — Where devisees, legatees,
or heirs have entered into possession of portions of the estate
before the debts and expenses have been settled and paid, and have
become liable to contribute for the payment of such debts and expenses,
the court having jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of their several liabilities,
and order how much and in what manner each person shall contribute,
and may issue execution as circumstances require.
SECTION
7. Order of payment if estate insolvent. — If the assets which
can be appropriated for the payment of debts are not sufficient
for that purpose, the executor or administrator shall pay the debts
against the estate, observing the provisions of Articles 1059 and
2239 to 2251 of the Civil Code.
SECTION
8. Dividends to be paid in proportion to claims. — If there
are no assets sufficient to pay the credits of any one class of
creditors after paying the credits entitled to preference over it,
each creditor within such class shall be paid a dividend in proportion
to his claim. No creditor of any one class shall receive any payment
until those of the preceding class are paid.
SECTION
9. Estate of insolvent nonresident, how disposed of . — In
case administration is taken in the Philippines of the estate of
a person who was at the time of his death an inhabitant of another
country, and who died insolvent, his estate found in the Philippines
shall, as far as practicable, be so disposed of that his creditors
here and elsewhere may receive each an equal share, in proportion
to their respective credits.
SECTION
10. When and how claim proved outside the Philippines against insolvent
resident's estate paid. — If it appears to the court having
jurisdiction that claims have been duly proven in another country
against the estate of an insolvent who was at the time of his death
an inhabitant of the Philippines, and that the executor or administrator
in the Philippines had knowledge of the presentation of such claims
in such country and an opportunity to contest their allowance, the
court shall receive a certified list of such claims, when perfected
in such country, and add the same to the list of claims proved against
the deceased person in the Philippines so that a just distribution
of the whole estate may be made equally among all its creditors
according to their respective claims; but the benefit of this and
the preceding sections shall not be extended to the creditors in
another country if the property of such deceased person there found
is not equally apportioned to the creditors residing in the Philippines
and the other creditors, according to their respective claims.
SECTION
11. Order for payment of debts. — Before the expiration of
the time limited for the payment of the debts, the court shall order
the payment thereof, and the distribution of the assets received
by the executor or administrator for that purpose among the creditors,
as the circumstances of the estate require and in accordance with
the provisions of this rule.
SECTION
12. Orders relating to payment of debts where appeal is taken. —
If an appeal has been taken from a decision of the court concerning
a claim, the court may suspend the order for the payment of the
debts or may order the distribution among the creditors whose claims
are definitely allowed, leaving in the hands of the executor or
administrator sufficient assets to pay the claim disputed and appealed.
When a disputed claim is finally settled the court having jurisdiction
of the estate shall order the same to be paid out of the assets
retained to the same extent and in the same proportion with the
claims of other creditors.
SECTION
13. When subsequent distribution of assets ordered. — If the
whole of the debts are not paid on the first distribution, and if
the whole assets are not distributed, or other assets afterwards
come to the hands of the executor or administrator, the court may
from time to time make further orders for the distribution of assets.
SECTION
14. Creditors to be paid in accordance with terms of order. —
When an order is made for the distribution of assets among the creditors,
the executor or administrator shall, as soon as the time of payment
arrives, pay the creditors the amounts of their claims, or the dividend
thereon, in accordance with the terms of such order.
SECTION
15. Time for paying debts and legacies fixed, or extended after
notice, within what periods. — On granting letters testamentary
or administration the court shall allow to the executor or administrator
a time for disposing of the estate and paying the debts and legacies
of the deceased, which shall not, in the first instance, exceed
one (1) year; but the court may, on application of the executor
or administrator and after hearing on such notice of the time and
place therefor given to all persons interested as it shall direct,
extend the time as the circumstances of the estate require not exceeding
six (6) months for a single extension nor so that the whole period
allowed to the original executor or administrator shall exceed two
(2) years.
SECTION
16. Successor of dead executor or administrator may have time extended
on notice within certain period. — When an executor or administrator
dies, and a new administrator of the same estate is appointed, the
court may extend the time allowed for the payment of the debts or
legacies beyond the time allowed to the original executor or administrator,
not exceeding six (6) months at a time and not exceeding six (6)
months beyond the time which the court might have allowed to such
original executor or administrator; and notice shall be given of
the time and place for hearing such application, as required in
the last preceding section.
RULE
89
Sales, Mortgages, and Other Encumbrances of Property of Decedent
SECTION
1. Order of sale of personalty. — Upon the application of
the executor or administrator, and on written notice to the heirs
and other persons interested, the court may order the whole or a
part of the personal estate to be sold, if it appears necessary
for the purpose of paying debts, expenses of administration, or
legacies, or for the preservation of the property.
SECTION
2. When court may authorize sale, mortgage, or other encumbrance
of realty to pay debts and legacies through personalty not exhausted.
— When the personal estate of the deceased is not sufficient
to pay the debts, expenses of administration, and legacies, or where
the sale of such personal estate may injure the business or other
interests of those interested in the estate, and where a testator
has not otherwise made sufficient provision for the payment of such
debts, expenses, and legacies, the court, on the application of
the executor or administrator and on written notice to the heirs,
devisees, and legatees residing in the Philippines, may authorize
the executor or administrator to sell, mortgage, or otherwise encumber
so much as may be necessary of the real estate, in lieu of personal
estate, for the purpose of paying such debts, expenses, and legacies,
if it clearly appears that such sale, mortgage, or encumbrance would
be beneficial to the persons interested; and if a part cannot be
sold, mortgaged, or otherwise encumbered without injury to those
interested in the remainder, the authority may be for the sale,
mortgage, or other encumbrance of the whole of such real estate,
or so much thereof as is necessary or beneficial under the circumstances.
SECTION
3. Persons interested may prevent such sale, etc., by giving bond.
— No such authority to sell, mortgage, or otherwise encumber
real or personal estate shall be granted if any person interested
in the estate gives a bond, in a sum to be fixed by the court, conditioned
to pay the debts, expenses of administration, and legacies within
such time as the court directs; and such bond shall be for the security
of the creditors, as well as of the executor or administrator, and
may be prosecuted for the benefit of either.
SECTION
4. When court may authorize sale of estate as beneficial to interested
persons. Disposal of proceeds. — When it appears that the
sale of the whole or a part of the real or personal estate, will
be beneficial to the heirs, devisees, legatees, and other interested
persons, the court may, upon application of the executor or administrator
and on written notice to the heirs, devisees and legatees who are
interested in the estate to be sold, authorize the executor or administrator
to sell the whole or a part of said estate, although not necessary
to pay debts, legacies, or expenses of administration; but such
authority shall not be granted if inconsistent with the provisions
of a will. In case of such sale, the proceeds shall be assigned
to the persons entitled to the estate in the proper proportions.
SECTION
5. When court may authorize sale, mortgage, or other encumbrance
of estate to pay debts and legacies in other countries. —
When the sale of personal estate, or the sale, mortgage, or other
encumbrance of real estate is not necessary to pay the debts, expenses
of administration, or legacies in the Philippines, but it appears
from records and proceedings of a probate court in another country
that the estate of the deceased in such other country is not sufficient
to pay the debts, expenses of administration, and legacies there,
the court here may authorize the executor or administrator to sell
the personal estate or to sell, mortgage, or otherwise encumber
the real estate for the payment of debts or legacies in the other
country, in the same manner as for the payment of debts or legacies
in the Philippines.
SECTION
6. When court may authorize sale, mortgage, or other encumbrance
of realty acquired on execution or foreclosure. — The court
may authorize an executor or administrator to sell, mortgage, or
otherwise encumber real estate acquired by him on execution or foreclosure
sale, under the same circumstances and under the same regulations
as prescribed in this rule for the sale, mortgage, or other encumbrance
of other real estate.
SECTION
7. Regulations for granting authority to sell, mortgage, or otherwise
encumber estate. — The court having jurisdiction of the estate
of the deceased may authorize the executor or administrator to sell
personal estate, or to sell, mortgage, or otherwise encumber real
estate; in cases provided by these rules and when it appears necessary
or beneficial, under the following regulations:
(a)
The executor or administrator shall file a written petition setting
forth the debts due from the deceased, the expenses of administration,
the legacies, the value of the personal estate, the situation of
the estate to be sold, mortgaged, or otherwise encumbered, and such
other facts as show that the sale, mortgage, or other encumbrance
is necessary or beneficial;
(b)
The court shall thereupon fix a time and place for hearing such
petition, and cause notice stating the nature of the petition, the
reason for the same, and the time and place of hearing, to be given
personally or by mail to the persons interested, and may cause such
further notice to be given, by publication or otherwise, as it shall
deem proper;
(c)
If the court requires it, the executor or administrator shall give
an additional bond, in such sum as the court directs, conditioned
that such executor or administrator will account for the proceeds
of the sale, mortgage, or other encumbrance;
(d)
If the requirements in the preceding subdivisions of this section
have been complied with, the court, by order stating such compliance,
may authorize the executor or administrator to sell, mortgage, or
otherwise encumber, in proper cases, such part of the estate as
is deemed necessary, and in case of sale the court may authorize
it to be public or private, as would be most beneficial to all parties
concerned. The executor or administrator shall be furnished with
a certified copy of such order;
(e)
If the estate is to be sold at auction, the mode of giving notice
of the time and place of the sale shall be governed by the provisions
concerning notice of execution sale;
(f)
There shall be recorded in the registry of deeds of the province
in which the real estate thus sold, mortgaged, or otherwise encumbered
is situated, a certified copy of the order of the court, together
with the deed of the executor or administrator for such real estate,
which shall be as valid as if the deed had been executed by the
deceased in his lifetime.
SECTION
8. When a court may authorize conveyance or realty which deceased
contracted to convey. Notice. Effect of deed. — Where the
deceased was in his lifetime under contract, binding in law, to
deed real property, or an interest therein, the court having jurisdiction
of the estate may, on application for that purpose, authorize the
executor or administrator to convey such property according to such
contract, or with such modifications as are agreed upon by the parties
and approved by the court; and if the contract is to convey real
property to the executor or administrator, the clerk of the court
shall execute the deed. The deed executed by such executor, administrator,
or clerk of court shall be as effectual to convey the property as
if executed by the deceased in his lifetime; but no such conveyance
shall be authorized until notice of the application for that purpose
has been given personally or by mail to all persons interested,
and such further notice has been given, by publication or otherwise,
as the court deems proper; nor if the assets in the hands of the
executor or administrator will thereby be reduced so as to prevent
a creditor from receiving his full debt or diminish his dividend.
SECTION
9. When court may authorize conveyance of lands which deceased held
in trust. — Where the deceased in his lifetime held real property
in trust for another person, the court may, after notice given as
required in the last preceding section, authorize the executor or
administrator to deed such property to the person, or his executor
or administrator, for whose use and benefit it was so held; and
the court may order the execution of such trust, whether created
by deed or by law.
RULE
90
Distribution and Partition of the Estate
SECTION
1. When order for distribution of residue made. — When the
debts, funeral charges, and expenses of administration, the allowance
to the widow, and inheritance tax, if any, chargeable to the estate
in accordance with law, have been paid, the court, on the application
of the executor or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign the residue
of the estate to the persons entitled to the same, naming them and
the proportions, or parts, to which each is entitled, and such persons
may demand and recover their respective shares from the executor
or administrator, or any other person having the same in his possession.
If there is a controversy before the court as to who are the lawful
heirs of the deceased person or as to the distributive shares to
which each person is entitled under the law, the controversy shall
be heard and decided as in ordinary cases.
No
distribution shall be allowed until the payment of the obligations
above mentioned has been made or provided for, unless the distributees,
or any of them, give a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations within such time
as the court directs.
SECTION
2. Questions as to advancement to be determined. — Questions
as to advancement made, or alleged to have been made, by the deceased
to any heir may be heard and determined by the court having jurisdiction
of the estate proceedings; and the final order of the court thereon
shall be binding on the person raising the questions and on the
heir.
SECTION
3. By whom expenses of partition paid. — If at the time of
the distribution the executor or administrator has retained sufficient
effects in his hands which may lawfully be applied for the expenses
of partition of the properties distributed, such expenses of partition
may be paid by such executor or administrator when it appears equitable
to the court and not inconsistent with the intention of the testator;
otherwise, they shall be paid by the parties in proportion to their
respective shares or interest in the premises, and the apportionment
shall be settled and allowed by the court, and, if any person interested
in the partition does not pay his proportion or share, the court
may issue an execution in the name of the executor or administrator
against the party not paying for the sum assessed.
SECTION
4. Recording the order of partition of estate. — Certified
copies of final orders and judgments of the court relating to the
real estate or the partition thereof shall be recorded in the registry
of deeds of the province where the property is situated.
RULE
91
Escheats
SECTION
1. When and by whom petition filed. — When a person dies intestate,
seized of real or personal property in the Philippines, leaving
no heir or person by law entitled to the same, the Solicitor General
or his representative in behalf of the Republic of the Philippines,
may file a petition in the Court of First Instance of the province
where the deceased last resided or in which he had estate, if he
resided out of the Philippines, setting forth the facts, and praying
that the estate of the deceased be declared escheated.
SECTION
2. Order for hearing. — If the petition is sufficient in form
and substance, the court, by an order reciting the purpose of the
petition, shall fix a date and place for the hearing thereof, which
date shall be not more than six (6) months after the entry of the
order, and shall direct that a copy of the order be published before
the hearing at least once a week for six (6) successive weeks in
some newspaper of general circulation published in the province,
as the court shall deem best.
SECTION
3. Hearing and judgment. — Upon satisfactory proof in open
court on the date fixed in the order that such order has been published
as directed and that the person died intestate, seized of real or
personal property in the Philippines, leaving no heir or person
entitled to the same, and no sufficient cause being shown to the
contrary, the court shall adjudge that the estate of the deceased
in the Philippines, after the payment of just debts and charges,
shall escheat; and shall, pursuant to law, assign the personal estate
to the municipality or city where he last resided in the Philippines,
and the real estate to the municipalities or cities, respectively,
in which the same is situated. If the deceased never resided in
the Philippines, the whole estate may be assigned to the respective
municipalities or cities where the same is located. Such estate
shall be for the benefit of public schools, and public charitable
institutions and centers in said municipalities or cities.
The
court, at the instance of an interested party, or on its own motion,
may order the establishment of a permanent trust, so that only the
income from the property shall be used.
SECTION
4. When and by whom claim to estate filed. — If a devisee,
legatee, heir, widow, widower or other person entitled to such estate
appears and files a claim thereto with the court within five (5)
years from the date of such judgment, such person shall have possession
of and title to the same, or if sold, the municipality or city shall
be accountable to him for the proceeds, after deducting reasonable
charges for the care of the estate; but a claim not made within
said time shall be forever barred.
SECTION
5. Other actions for escheat. — Until otherwise provided by
law, actions for reversion or escheat of properties alienated in
violation of the Constitution or of any statute shall be governed
by this rule, except that the action shall be instituted in the
province where the land lies in whole or in part.
GENERAL
GUARDIANS AND GUARDIANSHIP
RULE 92
Venue
SECTION
1. Where to institute proceedings. — Guardianship of the person
or estate of a minor or incompetent may be instituted in the Court
of First Instance of the province, or in the justice of the peace
court of the municipality, or in the municipal court of the chartered
city where the minor or incompetent person resides, and if he resides
in a foreign country, in the Court of First Instance of the province
wherein his property or part thereof is situated; provided, however,
that where the value of the property of such minor or incompetent
exceeds the jurisdiction of the justice of the peace or municipal
court, the proceedings shall be instituted in the Court of First
Instance.
In
the City of Manila the proceedings shall be instituted in the Juvenile
and Domestic Relations Court.
SECTION
2. Meaning of word "incompetent." — Under this rule,
the word "incompetent" includes persons suffering the
penalty of civil interdiction or who are hospitalized lepers, prodigals,
deaf and dumb who are unable to read and write, those who are of
unsound mind, even though they have lucid intervals, and persons
not being of unsound mind, but by reason of age, disease, weak mind,
and other similar causes, cannot, without outside aid, take care
of themselves and manage their property, becoming thereby an easy
prey for deceit and exploitation.
SECTION
3. Transfer of venue. — The court taking cognizance of a guardianship
proceeding, may transfer the same to the court of another province
or municipality wherein the ward has acquired real property, if
he has transferred thereto his bona-fide residence, and the latter
court shall have full jurisdiction to continue the proceedings,
without requiring payment of additional court fees.
RULE
93
Appointment of Guardians
SECTION
1. Who may petition for appointment of guardian for resident. —
Any relative, friend, or other person on behalf of a resident minor
or incompetent who has no parent or lawful guardian, or the minor
himself if fourteen years of age or over, may petition the court
having jurisdiction for the appointment of a general guardian for
the person or estate, or both, of such minor or incompetent. An
officer of the Federal Administration of the United States in the
Philippines may also file a petition in favor of a ward thereof,
and the Director of Health, in favor of an insane person who should
be hospitalized, or in favor of an isolated leper.
SECTION
2. Contents of petition. — A petition for the appointment
of a general guardian must show, so far as known to the petitioner:
(a)
The jurisdictional facts;
(b)
The minority or incompetency rendering the appointment necessary
or convenient;
(c)
The names, ages, and residences of the relatives of the minor or
incompetent, and of the persons having him in their care;
(d)
The probable value and character of his estate;
(e)
The name of the person for whom letters of guardianship are prayed.
The
petition shall be verified; but no defect in the petition or verification
shall render void the issuance of letters of guardianship.
SECTION
3. Court to set time for hearing. Notice thereof . — When
a petition for the appointment of a general guardian is filed, the
court shall fix a time and place for hearing the same, and shall
cause reasonable notice thereof to be given to the persons mentioned
in the petition residing in the province, including the minor if
above 14 years of age or the incompetent himself, and may direct
other general or special notice thereof to be given.
SECTION
4. Opposition to petition. — Any interested person may, by
filing a written opposition, contest the petition on the ground
of majority of the alleged minor, competency of the alleged incompetent,
or the unsuitability of the person for whom letters are prayed,
and may pray that the petition be dismissed, or that letters of
guardianship issue to himself, or to any suitable person named in
the opposition.
SECTION
5. Hearing and order for letters to issue. — At the hearing
of the petition the alleged incompetent must be present if able
to attend, and it must be shown that the required notice has been
given. Thereupon the court shall hear the evidence of the parties
in support of their respective allegations, and, if the person in
question is a minor, or incompetent it shall appoint a suitable
guardian of his person or estate, or both, with the powers and duties
hereinafter specified.
SECTION
6. When and how guardian for nonresident appointed. Notice. —
When a person liable to be put under guardianship resides without
the Philippines but has estate therein, any relative or friend of
such person, or any one interested in his estate, in expectancy
or otherwise, may petition a court having jurisdiction for the appointment
of a guardian for the estate, and if, after notice given to such
person and in such manner as the court deems proper, by publication
or otherwise, and hearing, the court is satisfied that such nonresident
is a minor or incompetent rendering a guardian necessary or convenient,
it may appoint a guardian for such estate.
SECTION
7. Parents as guardians. — When the property of the child
under parental authority is worth two thousand pesos or less, the
father or the mother, without the necessity of court appointment,
shall be his legal guardian. When the property of the child is worth
more than two thousand pesos, the father or the mother shall be
considered guardian of the child's property, with the duties and
obligations of guardians under these rules, and shall file the petition
required by section 2 hereof. For good reasons the court may, however,
appoint another suitable person.
SECTION
8. Service of judgment. — Final orders or judgments under
this rule shall be served upon the civil registrar of the municipality
or city where the minor or incompetent person resides or where his
property or part thereof is situated.
RULE
94
Bonds of Guardians
SECTION
1. Bond to be given before issuance of letters. Amount. Conditions.
— Before a guardian appointed enters upon the execution of
his trust, or letters of guardianship issue, he shall give a bond,
in such sum as the court directs, conditioned as follows:
(a)
To make and return to the court, within three (3) months, a true
and complete inventory of all the estate, real and personal, of
his ward which shall come to his possession or knowledge or to the
possession or knowledge of any other person for him;
(b)
To faithfully execute the duties of his trust, to manage and dispose
of the estate according to these rules for the best interests of
the ward, and to provide for the proper care, custody, and education
of the ward;
(c)
To render a true and just account of all the estate of the ward
in his hands, and of all proceeds or interest derived therefrom,
and of the management and disposition of the same, at the time designated
by these rules and such other times as the court directs; and at
the expiration of his trust to settle his accounts with the court
and deliver and pay over all the estate, effects, and moneys remaining
in his hands, or due from him on such settlement, to the person
lawfully entitled thereto;
(d)
To perform all orders of the court by him to be performed.
SECTION
2. When new bond may be required and old sureties discharged. —
Whenever it is deemed necessary, the court may require a new bond
to be given by the guardian, and may discharge the sureties on the
old bond from further liability, after due notice to interested
persons, when no injury can result therefrom to those interested
in the estate.
SECTION
3. Bonds to be filed. Actions thereon. — Every bond given
by a guardian shall be filed in the office of the clerk of the court,
and, in case of the breach of a condition thereof, may be prosecuted
in the same proceeding or in a separate action for the use and benefit
of the ward or of any other person legally interested in the estate.
RULE
95
Selling and Encumbering Property of Ward
SECTION
1. Petition of guardian for leave to sell or encumber estate. —
When the income of an estate under guardianship is insufficient
to maintain the ward and his family, or to maintain and educate
the ward when a minor, or when it appears that it is for the benefit
of the ward that his real estate or some part thereof be sold, or
mortgaged or otherwise encumbered, and the proceeds thereof put
out at interest, or invested in some productive security, or in
the improvement or security of other real estate of the ward, the
guardian may present a verified petition to the court by which he
was appointed setting forth such facts, and praying that an order
issue authorizing the sale or encumbrance.
SECTION
2. Order to show cause thereupon. — If it seems probable that
such sale or encumbrance is necessary, or would be beneficial to
the ward, the court shall make an order directing the next of kin
of the ward, and all persons interested in the estate, to appear
at a reasonable time and place therein specified to show cause why
the prayer of the petition should not be granted.
SECTION
3. Hearing on return of order. Costs. — At the time and place
designated in the order to show cause, the court shall hear the
proofs and allegations of the petitioner and next of kin, and other
persons interested, together with their witnesses, and grant or
refuse the prayer of the petition as the best interests of the ward
require. The court shall make such order as to costs of the hearing
as may be just.
SECTION
4. Contents of order for sale or encumbrance, and how long effective.
Bond. — If, after full examination, it appears that it is
necessary, or would be beneficial to the ward, to sell or encumber
the estate, or some portion of it, the court shall order such sale
or encumbrance and that the proceeds thereof be expended for the
maintenance of the ward and his family, or the education of the
ward, if a minor, or for the putting of the same out at interest,
or the investment of the same as the circumstances may require.
The order shall specify the causes why the sale or encumbrance is
necessary or beneficial, and may direct that estate ordered sold
be disposed of at either public or private sale, subject to such
conditions as to the time and manner of payment, and security where
a part of the payment is deferred, as in the discretion of the court
are deemed most beneficial to the ward. The original bond of the
guardian shall stand as security for the proper appropriation of
the proceeds of the sale, but the judge may, if deemed expedient,
require an additional bond as a condition for the granting of the
order of sale. No order of sale granted in pursuance of this section
shall continue in force more than one (1) year after granting the
same, without a sale being had.
SECTION
5. Court may order investment of proceeds and direct management
of estate. — The court may authorize and require the guardian
to invest the proceeds of sales or encumbrances, and any other of
his ward's money in his hands, in real estate or otherwise, as shall
be for the best interest of all concerned, and may make such other
orders for the management, investment, and disposition of the estate
and effects, as circumstances may require.
RULE
96
General Powers and Duties of Guardians
SECTION
1. To what guardianship shall extend. — A guardian appointed
shall have the care and custody of the person of his ward, and the
management of his estate, or the management of the estate only,
as the case may be. The guardian of the estate of a nonresident
shall have the management of all the estate of the ward within the
Philippines, and no court other than that in which such guardian
was appointed shall have jurisdiction over the guardianship.
SECTION
2. Guardian to pay debts of ward. — Every guardian must pay
the ward's just debts out of his personal estate and the income
of his real estate, if sufficient; if not, then out of his real
estate upon obtaining an order for the sale or encumbrance thereof.
SECTION
3. Guardian to settle accounts, collect debts, and appear in actions
for ward. — A guardian must settle all accounts of his ward,
and demand, sue for, and receive all debts due him, or may, with
the approval of the court, compound for the same and give discharges
to the debtor, on receiving a fair and just dividend of the estate
and effects; and he shall appear for and represent his ward in all
actions and special proceedings, unless another person be appointed
for that purpose.
SECTION
4. Estate to be managed frugally, and proceeds applied to maintenance
of ward. — A guardian must manage the estate of his ward frugally
and without waste, and apply the income and profits thereof, so
far as may be necessary, to the comfortable and suitable maintenance
of the ward and his family, if there be any; and if such income
and profits be insufficient for that purpose, the guardian may sell
or encumber the real estate, upon being authorized by order so to
do, and apply so much of the proceeds as may be necessary to such
maintenance.
SECTION
5. Guardian may be authorized to join in partition proceedings after
hearing. — The court may authorize the guardian to join in
an assent to a partition of real or personal estate held by the
ward jointly or in common with others, but such authority shall
only be granted after hearing, upon such notice to relatives of
the ward as the court may direct, and a careful investigation as
to the necessity and propriety of the proposed action.
SECTION
6. Proceedings when person suspected of embezzling or concealing
property of ward. — Upon complaint of the guardian or ward,
or of any person having actual or prospective interest in the estate
of the ward as creditor, heir, or otherwise, that anyone is suspected
of having embezzled, concealed, or conveyed away any money, goods,
or interest, or a written instrument, belonging to the ward or his
estate, the court may cite the suspected person to appear for examination
touching such money, goods, interest, or instrument, and make such
orders as will secure the estate against such embezzlement, concealment
or conveyance.
SECTION
7. Inventories and accounts of guardians, and appraisement of estates.
— A guardian must render to the court an inventory of the
estate of his ward within three (3) months after his appointment,
and annually after such appointment an inventory and account, the
rendition of any of which may be compelled upon the application
of an interested person. Such inventories and accounts shall be
sworn to by the guardian. All the estate of the ward described in
the first inventory shall be appraised. In the appraisement the
court may request the assistance of one or more of the inheritance
tax appraisers. And whenever any property of the ward not included
in an inventory already rendered is discovered, or succeeded to,
or acquired by the ward, like proceedings shall be had for securing
an inventory and appraisement thereof within three (3) months after
such discovery, succession, or acquisition.
SECTION
8. When guardian's accounts presented for settlement. Expenses and
compensation allowed. — Upon the expiration of a year from
the time of his appointment, and as often thereafter as may be required,
a guardian must present his account to the court for settlement
and allowance. In the settlement of the account, the guardian, other
than a parent, shall be allowed the amount of his reasonable expenses
incurred in the execution of his trust and also such compensation
for his services as the court deems just, not exceeding fifteen
per centum of the net income of the ward.
RULE
97
Termination of Guardianship
SECTION
1. Petition that competency of ward be adjudged, and proceedings
thereupon. — A person who has been declared incompetent for
any reason, or his guardian, relative, or friend, may petition the
court to have his present competency judicially determined. The
petition shall be verified by oath, and shall state that such person
is then competent. Upon receiving the petition, the court shall
fix a time for hearing the questions raised thereby, and cause reasonable
notice thereof to be given to the guardian of the person so declared
incompetent, and to the ward. On the trial, the guardian or relatives
of the ward, and, in the discretion of the court, any other person,
may contest the right to the relief demanded, and witnesses may
be called and examined by the parties or by the court on its own
motion. If it be found that the person is no longer incompetent,
his competency shall be adjudged and the guardianship shall cease.
SECTION
2. When guardian removed or allowed to resign. New appointment.
— When a guardian becomes insane or otherwise incapable of
discharging his trust or unsuitable therefor, or has wasted or mismanaged
the estate, or failed for thirty (30) days after it is due to render
an account or make a return, the court may, upon reasonable notice
to the guardian, remove him, and compel him to surrender the estate
of the ward to the person found to be lawfully entitled thereto.
A guardian may resign when it appears proper to allow the same;
and upon his resignation or removal the court may appoint another
in his place.
SECTION
3. Other termination of guardianship. — The marriage or voluntary
emancipation of a minor ward terminates the guardianship of the
person of the ward, and shall enable the minor to administer his
property as though he were of age, but he cannot borrow money or
alienate or encumber real property without the consent of his father
or mother, or guardian. He can sue and be sued in court only with
the assistance of his father, mother or guardian. The guardian of
any person may be discharged by the court when it appears, upon
the application of the ward or otherwise, that the guardianship
is no longer necessary.
SECTION
4. Record to be kept by the justice of the peace or municipal judge.
— When a justice of the peace or municipal court takes cognizance
of the proceedings in pursuance of the provisions of these rules,
the record of the proceedings shall be kept as in the court of first
instance.
SECTION
5. Service of judgment. — Final orders or judgments under
this rule shall be served upon the civil registrar of the municipality
or city where the minor or incompetent person resides or where his
property or part thereof is situated.
RULE
98
Trustees
SECTION
1. Where trustee appointed. — A trustee necessary to carry
into effect the provisions of a will or written instrument shall
be appointed by the Court of First Instance in which the will was
allowed if it be a will allowed in the Philippines, otherwise by
the Court of First Instance of the province in which the property,
or some portion thereof, affected by the trust is situated.
SECTION
2. Appointment and powers of trustee under will. Executor of former
trustee need not administer trust. — If a testator has omitted
in his will to appoint a trustee in the Philippines, and if such
appointment is necessary to carry into effect the provisions of
the will, the proper Court of First Instance may, after notice to
all persons interested, appoint a trustee who shall have the same
rights, powers, and duties, and in whom the estate shall vest, as
if he had been appointed by the testator. No person succeeding to
a trust as executor or administrator of a former trustee shall be
required to accept such trust.
SECTION
3. Appointment and powers of new trustee under written instrument.
— When a trustee under a written instrument declines, resigns,
dies, or is removed before the objects of the trust are accomplished,
and no adequate provision is made in such instrument for supplying
the vacancy, the proper Court of First Instance may, after due notice
to all persons interested, appoint a new trustee to act alone or
jointly with the others, as the case may be. Such new trustee shall
have and exercise the same powers, rights, and duties as if he had
been originally appointed, and the trust estate shall vest in him
in like manner as it had vested or would have vested, in the trustee
in whose place he is substituted; and the court may order such conveyance
to be made by the former trustee or his representatives, or by the
other remaining trustees, as may be necessary or proper to vest
the trust estate in the new trustee, either alone or jointly with
the others.
SECTION
4. Proceedings where trustee appointed abroad. — When land
in the Philippines is held in trust for persons resident here by
a trustee who derives his authority from without the Philippines,
such trustee shall, on petition filed in the Court of First Instance
of province where the land is situated, and after due notice to
all persons interested, be ordered to apply to the court for appointment
as trustee; and upon his neglect or refusal to comply with such
order, the court shall declare such trust vacant, and shall appoint
a new trustee in whom the trust estate shall vest in like manner
as if he had been originally appointed by such court.
SECTION
5. Trustee must file bond. — Before entering on the duties
of his trust, a trustee shall file with the clerk of the court having
jurisdiction of the trust a bond in the amount fixed by the judge
of said court, payable to the Government of the Philippines and
sufficient and available for the protection of any party in interest,
and a trustee who neglects to file such bond shall be considered
to have declined or resigned the trust; but the court may until
further order exempt a trustee under a will from giving a bond when
the testator has directed or requested such exemption, and may so
exempt any trustee when all persons beneficially interested in the
trust, being of full age, request the exemption. Such exemption
may be cancelled by the court at any time and the trustee required
to forthwith file a bond.
SECTION
6. Conditions included in bond. — The following conditions
shall be deemed to be a part of the bond whether written therein
or not:
(a)
That the trustee will make and return to the court, at such time
as it may order, a true inventory of all the real and personal estate
belonging to him as trustee, which at the time of the making of
such inventory shall have come to his possession or knowledge;
(b)
That he will manage and dispose of all such estate, and faithfully
discharge his trust in relation thereto, according to law and the
will of the testator or the provisions of the instrument or order
under which he is appointed;
(c)
That he will render upon oath at least once a year until his trust
is fulfilled, unless he is excused therefrom in any year by the
court, a true account of the property in his hands and of the management
and disposition thereof, and will render such other accounts as
the court may order;
(d)
That at the expiration of his trust he will settle his accounts
in court and pay over and deliver all the estate remaining in his
hands, or due from him on such settlement, to the person or persons
entitled thereto.
But
when the trustee is appointed as a successor to a prior trustee,
the court may dispense with the making and return of an inventory,
if one has already been filed, and in such case the condition of
the bond shall be deemed to be altered accordingly.
SECTION
7. Appraisal. Compensation of trustee. — When an inventory
is required to be returned by a trustee, the estate and effects
belonging to the trust shall be appraised and the court may order
one or more inheritance tax appraisers to assist in the appraisement.
The compensation of the trustee shall be fixed by the court, if
it be not determined in the instrument creating the trust.
SECTION
8. Removal or resignation of trustee. — The proper Court of
First Instance may, upon petition of the parties beneficially interested
and after due notice to the trustee and hearing, remove a trustee
if such removal appears essential in the interests of the petitioners.
The court may also, after due notice to all persons interested,
remove a trustee who is insane or otherwise incapable of discharging
his trust or evidently unsuitable therefor. A trustee, whether appointed
by the court or under a written instrument, may resign his trust
if it appears to the court proper to allow such resignation.
SECTION
9. Proceedings for sale or encumbrance of trust estate. —
When the sale or encumbrance of any real or personal estate held
in trust is necessary or expedient, the court having jurisdiction
of the trust may, on petition and after due notice and hearing,
order such sale or encumbrance to be made, and the reinvestment
and application of the proceeds thereof in such manner as will best
effect the objects of the trust. The petition, notice, hearing,
order of sale or encumbrance, and record of proceedings, shall conform
as nearly as may be to the provisions concerning the sale or encumbrance
by guardians of the property of minors or other wards.
RULE
99
Adoption and Custody of Minors
SECTION
1. Venue. — A person desiring to adopt another or have the
custody of a minor shall present his petition to the Court of First
Instance of the province, or the municipal or justice of the peace
court of the city or municipality in which he resides.
In
the City of Manila, the proceedings shall be instituted in the Juvenile
and Domestic Relations Court.
SECTION 2. Contents of petition. — The petition for adoption
shall contain the same allegations required in a petition for guardianship,
to wit:
(a)
The jurisdictional facts;
(b)
The qualifications of the adopter;
(c)
That the adopter is not disqualified by law;
(d)
The name, age, and residence of the person to be adopted and of
his relatives or of the persons who have him under their care;
(e)
The probable value and character of the estate of the person to
be adopted.
SECTION
3. Consent to adoption. — There shall be filed with the petition
a written consent to the adoption signed by the child, if fourteen
years of age or over and not incompetent, and by the child's spouse,
if any, and by each of its known living parents who is not insane
or hopelessly intemperate or has not abandoned such child, or if
there are no such parents by the general guardian or guardian ad
litem of the child, or if the child is in the custody of an orphan
asylum, children's home, or benevolent society or person, by the
proper officer or officers of such asylum, home, or society, or
by such person; but if the child is illegitimate and has not been
recognized, the consent of its father to the adoption shall not
be required.
If
the person to be adopted is of age, only his or her consent and
that of the spouse, if any, shall be required.
SECTION
4. Order for hearing. — If the petition and consent filed
are sufficient in form and substance, the court, by an order reciting
the purpose of the petition, shall fix a date and place for the
hearing thereof, which date shall not be more than six (6) months
after the entry of the order, and shall direct that a copy of the
order be published before the hearing at least once a week for three
(3) successive weeks in some newspaper of general circulation published
in the province, as the court shall deem best.
SECTION
5. Hearing and judgment. — Upon satisfactory proof in open
court on the date fixed in the order that such order has been published
as directed, that the allegations of the petition are true, and
that it is a proper case for adoption and the petitioner or petitioners
are able to bring up and educate the child properly, the court shall
adjudge that thenceforth the child is freed from all legal obligations
of obedience and maintenance with respect to its natural parents,
except the mother when the child is adopted by her husband, and
is, to all legal intents and purposes, the child of the petitioner
or petitioners, and that its surname is changed to that of the petitioner
or petitioners. The adopted person or child shall thereupon become
the legal heir of his parents by adoption and shall also remain
the legal heir of his natural parents. In case of the death of the
adopted person or child, his parents and relatives by nature, and
not by adoption, shall be his legal heirs.
SECTION
6. Proceedings as to child whose parents are separated. Appeal.
— When husband and wife are divorced or living separately
and apart from each other, and the question as to the care, custody,
and control of a child or children of their marriage is brought
before a Court of First Instance by petition or as an incident to
any other proceeding, the court, upon hearing the testimony as may
be pertinent, shall award the care, custody, and control of each
such child as will be for its best interest, permitting the child
to choose which parent it prefers to live with if it be over ten
years of age, unless the parent so chosen be unfit to take charge
of the child by reason of moral depravity, habitual drunkenness,
incapacity, or poverty. If, upon such hearing, it appears that both
parents are improper persons to have the care, custody, and control
of the child, the court may either designate the paternal or maternal
grandparent of the child, or his oldest brother or sister, or some
reputable and discreet person to take charge of such child, or commit
it to any suitable asylum, children's home, or benevolent society.
The court may in conformity with the provisions of the Civil Code
order either or both parents to support or help support said child,
irrespective of who may be its custodian, and may make any order
that is just and reasonable permitting the parent who is deprived
of its care and custody to visit the child or have temporary custody
thereof. Either parent may appeal from an order made in accordance
with the provisions of this section. No child under seven years
of age shall be separated from its mother, unless the court finds
there are compelling reasons therefor.
SECTION
7. Proceedings as to vagrant or abused child. — When the parents
of any minor child are dead, or by reason of long absence or legal
or physical disability have abandoned it, or cannot support it through
vagrancy, negligence, or misconduct, or neglect or refuse to support
it, or treat it with excessive harshness or give it corrupting orders,
counsels, or examples, or cause or allow it to engage in begging,
or to commit offenses against the law, the proper Court of First
Instance, upon petition filed by some reputable resident of the
province setting forth the facts, may issue an order requiring such
parents to show cause, or, if the parents are dead or cannot be
found, requiring the fiscal of the province to show cause, at a
time and place fixed in the order, why the child should not be taken
from its parents, if living; and if upon the hearing it appears
that the allegations of the petition are true, and that it is for
the best interest of the child, the court may make an order taking
it from its parents, if living; and committing it to any suitable
orphan asylum, children's home, or benevolent society or person
to be ultimately placed, by adoption or otherwise, in a home found
for it by such asylum, children's home, society or person.
SECTION
8. Service of judgment. — Final orders or judgments under
this rule shall be served by the clerk upon the civil registrar
of the city or municipality wherein the court issuing the same is
situated.
RULE
100
Rescission and Revocation of Adoption
SECTION
1. Who may file petition; grounds. — A minor or other incapacitated
person may, through a guardian or guardian ad litem, petition for
the rescission or revocation of his or her adoption for the same
causes that authorize the deprivation of parental authority.
The
adopter may, likewise, petition the court for the rescission or
revocation of the adoption in any of these cases:
(a)
If the adopted person has attempted against the life of the adopter;
(b)
When the adopted minor has abandoned the home of the adopter for
more than three (3) years;
(c)
When by other acts the adopted person has repudiated the adoption.
SECTION
2. Order to answer. — The court in which the petition is filed
shall issue an order requiring the adverse party to answer the petition
within fifteen (15) days from receipt of a copy thereof. The order
and a copy of the petition shall be served on the adverse party
in such manner as the court may direct.
SECTION
3. Judgment. — If upon trial, on the day set therefor, the
court finds that the allegations of the petition are true, it shall
render judgment ordering the rescission or revocation of the adoption,
with or without costs, as justice requires.
SECTION
4. Service of judgment. — A certified copy of the judgment
rendered in accordance with the next preceding section shall be
served upon the civil registrar concerned, within thirty (30) days
from rendition thereof, who shall forthwith enter the action taken
by the court in the register.
SECTION
5. Time within which to file petition. — A minor or other
incapacitated person must file the petition for rescission or revocation
of adoption within the five (5) years following his majority, or
if he was incompetent at the time of the adoption, within the five
(5) years following the recovery from such incompetency.
The
adopter must also file the petition to set aside the adoption within
five (5) years from the time the cause or causes giving rise to
the rescission or revocation of the same took place.
RULE
101
Proceedings for Hospitalization of Insane Persons
SECTION
1. Venue. Petition for commitment. — A petition for the commitment
of a person to a hospital or other place for the insane may be filed
with the Court of First Instance of the province where the person
alleged to be insane is found. The petition shall be filed by the
Director of Health in all cases where, in his opinion, such commitment
is for the public welfare, or for the welfare of said person who,
in his judgment, is insane, and such person or the one having charge
of him is opposed to his being taken to a hospital or other place
for the insane.
SECTION
2. Order for hearing. — If the petition filed is sufficient
in form and substance, the court, by an order reciting the purpose
of the petition, shall fix a date for the hearing thereof, and copy
of such order shall be served on the person alleged to be insane,
and to the one having charge of him, or on such of his relatives
residing in the province or city as the judge may deem proper. The
court shall furthermore order the sheriff to produce the alleged
insane person, if possible, on the date of the hearing.
SECTION
3. Hearing and judgment. — Upon satisfactory proof, in open
court on the date fixed in the order, that the commitment applied
for is for the public welfare or for the welfare of the insane person,
and that his relatives are unable for any reason to take proper
custody and care of him, the court shall order his commitment to
such hospital or other place for the insane as may be recommended
by the Director of Health. The court shall make proper provisions
for the custody of property or money belonging to the insane until
a guardian be properly appointed.
SECTION
4. Discharge of insane. — When, in the opinion of the Director
of Health, the person ordered to be committed to a hospital or other
place for the insane is temporarily or permanently cured, or may
be released without danger he may file the proper petition with
the Court of First Instance which ordered the commitment.
SECTION
5. Assistance of fiscal in the proceeding. — It shall be the
duty of the provincial fiscal or in the City of Manila the fiscal
of the city, to prepare the petition for the Director of Health
and represent him in court in all proceedings arising under the
provisions of this rule.
RULE
102
Habeas Corpus
SECTION
1. To what habeas corpus extends. — Except as otherwise expressly
provided by law, the writ of habeas corpus shall extend to all cases
of illegal confinement or detention by which any person is deprived
of his liberty, or by which the rightful custody of any person is
withheld from the person entitled thereto.
SECTION
2. Who may grant the writ. — The writ of habeas corpus may
be granted by the Supreme Court, or any member thereof, on any day
and at any time, or by the Court of Appeals or any member thereof
in the instances authorized by law, and if so granted it shall be
enforceable anywhere in the Philippines, and may be made returnable
before the court or any member thereof, or before a Court of First
Instance, or any judge thereof for the hearing and decision on the
merits. It may also be granted by a Court of First Instance, or
a judge thereof, on any day and at any time, and returnable before
himself, enforceable only within his judicial district.
SECTION
3. Requisites of application therefor. — Application for the
writ shall be by petition signed and verified either by the party
for whose relief it is intended, or by some person on his behalf,
and shall set forth:
(a)
That the person in whose behalf the application is made is imprisoned
or restrained of his liberty;
(b)
The officer or name of the person by whom he is so imprisoned or
restrained; or, if both are unknown or uncertain, such officer or
person may be described by an assumed appellation, and the person
who is served with the writ shall be deemed the person intended;
(c)
The place where he is so imprisoned or restrained, if known;
(d)
A copy of the commitment or cause of detention of such person, if
it can be procured without impairing the efficiency of the remedy;
or, if the imprisonment or restraint is without any legal authority,
such fact shall appear.
SECTION
4. When writ not allowed or discharge authorized. — If it
appears that the person alleged to be restrained of his liberty
is in the custody of an officer under process issued by a court
or judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the process,
render the judgment, or make the order, the writ shall not be allowed;
or if the jurisdiction appears after the writ is allowed, the person
shall not be discharged by reason of any informality or defect in
the process, judgment, or order. Nor shall anything in this rule
be held to authorize the discharge of a person charged with or convicted
of an offense in the Philippines, or of a person suffering imprisonment
under lawful judgment.
SECTION 5. When the writ must be granted and issued. — A court
or judge authorized to grant the writ must, when a petition therefor
is presented and it appears that the writ ought to issue, grant
the same forthwith, and immediately thereupon the clerk of the court
shall issue the writ under the seal of the court; or in case of
emergency, the judge may issue the writ under his own hand, and
may depute any officer or person to serve it.
SECTION
6. To whom writ directed, and what to require. — In case of
imprisonment or restraint by an officer, the writ shall be directed
to him, and shall command him to have the body of the person restrained
of his liberty before the court or judge designated in the writ
at the time and place therein specified. In case of imprisonment
or restraint by a person not an officer, the writ shall be directed
to an officer, and shall command him to take and have the body of
the person restrained of his liberty before the court or judge designated
in the writ at the time and place therein specified, and to summon
the person by whom he is restrained then and there to appear before
said court or judge to show the cause of the imprisonment or restraint.
SECTION
7. How prisoner designated and writ served. — The person to
be produced should be designated in the writ by his name, if known,
but if his name is not known he may be otherwise described or identified.
The writ may be served in any province by the sheriff or other proper
officer, or by a person deputed by the court or judge. Service of
the writ shall be made by leaving the original with the person to
whom it is directed and preserving a copy on which to make return
of service. If that person cannot be found, or has not the prisoner
in his custody, then the service shall be made on any other person
having or exercising such custody.
SECTION
8. How writ executed and returned. — The officer to whom the
writ is directed shall convey the person so imprisoned or restrained,
and named in the writ, before the judge allowing the writ, or, in
case of his absence or disability, before some other judge of the
same court, on the day specified in the writ, unless, from sickness
or infirmity of the person directed to be produced, such person
cannot, without danger, be brought before the court or judge; and
the officer shall make due return of the writ, together with the
day and the cause of the caption and restraint of such person according
to the command thereof.
SECTION
9. Defect of form. — No writ of habeas corpus can be disobeyed
for defect of form, if it sufficiently appears therefrom in whose
custody or under whose restraint the party imprisoned or restrained
is held and the court or judge before whom he is to be brought.
SECTION
10. Contents of return. — When the person to be produced is
imprisoned or restrained by an officer, the person who makes the
return shall state therein, and in other cases the person in whose
custody the prisoner is found shall state, in writing to the court
or judge before whom the writ is returnable, plainly and unequivocably:
(a)
Whether he has or has not the party in his custody or power, or
under restraint;
(b)
If he has the party in his custody or power, or under restraint,
the authority and the true and whole cause thereof, set forth at
large, with a copy of the writ, order, execution, or other process,
if any, upon which the party is held;
(c)
If the party is in his custody or power or is restrained by him,
and is not produced, particularly the nature and gravity of the
sickness or infirmity of such party by reason of which he cannot,
without danger, be brought before the court or judge;
(d)
If he has had the party in his custody or power, or under restraint,
and has transferred such custody or restraint to another, particularly
to whom, at what time, for what cause, and by what authority such
transfer was made.
SECTION
11. Return to be signed and sworn to. — The return or statement
shall be signed by the person who makes it; and shall also be sworn
to by him if the prisoner is not produced, and in all other cases
unless the return is made and signed by a sworn public officer in
his official capacity.
SECTION
12. Hearing on return. Adjournments. — When the writ is returned
before one judge, at a time when the court is in session, he may
forthwith adjourn the case into the court, there to be heard and
determined. The court or judge before whom the writ is returned
or adjourned must immediately proceed to hear and examine the return,
and such other matters as are properly submitted for consideration,
unless for good cause shown the hearing is adjourned, in which event
the court or judge shall make such order for the safekeeping of
the person imprisoned or restrained as the nature of the case requires.
If the person imprisoned or restrained is not produced because of
his alleged sickness or infirmity, the court or judge must be satisfied
that it is so grave that such person cannot be produced without
danger, before proceeding to hear and dispose of the matter. On
the hearing the court or judge shall disregard matters of form and
technicalities in respect to any warrant or order of commitment
of a court or officer authorized to commit by law.
SECTION
13. When the return evidence, and when only a plea. — If it
appears that the prisoner is in custody under a warrant of commitment
in pursuance of law, the return shall be considered prima facie
evidence of the cause of restraint; but if he is restrained of his
liberty by any alleged private authority, the return shall be considered
only as a plea of the facts therein set forth, and the party claiming
the custody must prove such facts.
SECTION
14. When person lawfully imprisoned recommitted, and when let to
bail. — If it appears that the prisoner was lawfully committed,
and is plainly and specifically charged in the warrant of commitment
with an offense punishable by death, he shall not be released, discharged,
or bailed. If he is lawfully imprisoned or restrained on a charge
of having committed an offense not so punishable, he may be recommitted
to imprisonment or admitted to bail in the discretion of the court
or judge. If he be admitted to bail, he shall forthwith file a bond
in such sum as the court or judge deems reasonable, considering
the circumstances of the prisoner and the nature of the offense
charged, conditioned for his appearance before the court where the
offense is properly cognizable to abide its order or judgment; and
the court or judge shall certify the proceedings, together with
the bond, forthwith to the proper court. If such bond is not so
filed, the prisoner shall be recommitted to confinement.
SECTION
15. When prisoner discharged if no appeal. — When the court
or judge has examined into the cause of caption and restraint of
the prisoner, and is satisfied that he is unlawfully imprisoned
or restrained, he shall forthwith order his discharge from confinement,
but such discharge shall not be effective until a copy of the order
has been served on the officer or person detaining the prisoner.
If the officer or person detaining the prisoner does not desire
to appeal, the prisoner shall be forthwith released.
SECTION
16. Penalty for refusing to issue writ, or for disobeying the same.
— A clerk of a court who refuses to issue the writ after allowance
thereof and demand therefor, or a person to whom a writ is directed,
who neglects or refuses to obey or make return of the same according
to the command thereof, or makes false return thereof, or who, upon
demand made by or on behalf of the prisoner, refuses to deliver
to the person demanding, within six (6) hours after the demand therefor,
a true copy of the warrant or order of commitment, shall forfeit
to the party aggrieved the sum of one thousand pesos, to be recovered
in a proper action, and may also be punished by the court or judge
as for contempt.
SECTION
17. Person discharged not to be given imprisoned. — A person
who is set at liberty upon a writ of habeas corpus shall not be
again imprisoned for the same offense unless by the lawful order
or process of a court having jurisdiction of the cause or offense;
and a person who knowingly, contrary to the provisions of this rule,
recommits or imprisons, or causes to be committed or imprisoned,
for the same offense, or pretended offense, any person so set at
liberty, or knowingly aids or assists therein, shall forfeit to
the party aggrieved the sum of one thousand pesos, to be recovered
in a proper action, notwithstanding any colorable pretense or variation
in the warrant of commitment, and may also be punished by the court
or judge granting writ as for contempt.
SECTION
18. When prisoner may be removed from one custody to another. —
A person committed to prison, or in custody of an officer, for any
criminal matter, shall not be removed therefrom into the custody
of another officer unless by legal process, or the prisoner be delivered
to an inferior officer to carry to jail, or, by order of the proper
court or judge, be removed from one place to another within the
Philippines for trial, or in case of fire, epidemic, insurrection,
or other necessity or public calamity; and a person who, after such
commitment, makes, signs, or countersigns any order for such removal
contrary to this section, shall forfeit to the party aggrieved the
sum of one thousand pesos, to be recovered in a proper action.
SECTION
19. Record of writ, fees and costs. — The proceedings upon
a writ of habeas corpus shall be recorded by the clerk of the court,
and upon the final disposition of such proceedings the court or
judge shall make such order as to costs as the case requires. The
fees of officers and witnesses shall be included in the costs taxed,
but no officer or person shall have the right to demand payment
in advance of any fees to which he is entitled by virtue of the
proceedings. When a person confined under color of proceedings in
a criminal case is discharged, the costs shall be taxed against
the Republic of the Philippines, and paid out of its Treasury; when
a person in custody by virtue or under color of proceedings in a
civil case is discharged, the costs shall be taxed against him,
or against the person who signed the application for the writ, or
both, as the court shall direct.
RULE
103
Change of Name
SECTION
1. Venue. — A person desiring to change his name shall present
the petition to the Court of First Instance of the province in which
he resides, or, in the City of Manila, to the Juvenile and Domestic
Relations Court.
SECTION
2. Contents of petition. — A petition for change of name shall
be signed and verified by the person desiring his name changed,
or some other person on his behalf, and shall set forth:
(a)
That the petitioner has been a bona fide resident of the province
where the petition is filed for at least three (3) years prior to
the date of such filing;
(b)
The cause for which the change of the petitioner's name is sought;
(c)
The name asked for.
SECTION
3. Order for hearing. — If the petition filed is sufficient
in form and substance, the court, by an order reciting the purpose
of the petition, shall fix a date and place for the hearing thereof,
and shall direct that a copy of the order be published before the
hearing at least once a week for three (3) successive weeks in some
newspaper of general circulation published in the province, as the
court shall deem best. The date set for the hearing shall not be
within thirty (30) days prior to an election nor within four (4)
months after the last publication of the notice.
SECTION
4. Hearing. — Any interested person may appear at the hearing
and oppose the petition. The Solicitor General or the proper provincial
or city fiscal shall appear on behalf of the Government of the Republic.
SECTION
5. Judgment. — Upon satisfactory proof in open court on the
date fixed in the order that such order has been published as directed
and that the allegations of the petition are true, the court shall,
if proper and reasonable cause appears for changing the name of
the petitioner, adjudge that such name be changed in accordance
with the prayer of the petition.
SECTION
6. Service of judgment. — Judgments or orders rendered in
connection with this rule shall be furnished the civil registrar
of the municipality or city where the court issuing the same is
situated, who shall forthwith enter the same in the civil register.
RULE
104
Voluntary Dissolution of Corporations
SECTION
1. Where, by whom and on what showing application made. —
A petition for dissolution of a corporation shall be filed in the
Court of First Instance of the province where the principal office
of a corporation is situated. The petition shall be signed by a
majority of its board of directors or other officers having the
management of its affairs, verified by its president or secretary
or one of its directors, and shall set forth all claims and demands
against it, and that its dissolution was resolved upon by a majority
of the members, or, if a stock corporation, by the affirmative vote
of the stockholders holding and representing two-thirds of all shares
of stock issued or subscribed, at a meeting of its members or stockholders
called for that purpose.
SECTION
2. Order thereupon for filing objections. — If the petition
is sufficient in form and substance, the court, by an order reciting
the purpose of the petition, shall fix a date on or before which
objections thereto may be filed by any person, which date shall
not be less than thirty (30) nor more than sixty (60) days after
the entry of the order. Before such date a copy of the order shall
be published at least once a week for four (4) successive weeks
in some newspaper of general circulation published in the municipality
or city where the principal office of the corporation is situated,
or, if there be no such newspaper, then in some newspaper of general
circulation in the Philippines, and a similar copy shall be posted
for four (4) weeks in three public places in such municipality or
city.
SECTION
3. Hearing, dissolution, and disposition of assets. Receiver. —
Upon five (5) days' notice given after the date on which the right
to file objections as fixed in the order expired, the court shall
proceed to hear the petition and try any issue made by objections
filed; and if no such objection is sufficient, and the material
allegations of the petition are true, it shall render judgment dissolving
the corporation and directing such disposition of its assets as
justice requires, and may appoint a receiver to collect such assets
and pay the debts of the corporation.
SECTION
4. What shall constitute record. — The petition, orders, proof
of publication and posting, objections filed, declaration of dissolution,
and any evidence taken, shall constitute the record in the case.
RULE
105
Judicial Approval of Voluntary Recognition of Minor Natural Children
SECTION
1. Venue. — Where judicial approval of a voluntary recognition
of a minor natural child is required, such child or his parents
shall obtain the same by filing a petition to that effect with the
Court of First Instance of the province in which the child resides.
In the City of Manila, the petition shall be filed in the Juvenile
and Domestic Relations Court.
SECTION
2. Contents of petition. — The petition for judicial approval
of a voluntary recognition of a minor natural child shall contain
the following allegations:
(a)
The jurisdictional facts;
(b)
The names and residences of the parents who acknowledged the child,
or of either of them, and their compulsory heirs, and the person
or persons with whom the child lives;
(c)
The fact that the recognition made by the parent or parents took
place in a statement before a court of record or in an authentic
writing, copy of the statement or writing being attached to the
petition.
SECTION
3. Order for hearing. — Upon the filing of the petition, the
court, by an order reciting the purpose of the same, shall fix the
date and place for the hearing thereof, which date shall not be
more than six (6) months after the entry of the order, and shall,
moreover, cause a copy of the order to be served personally or by
mail upon the interested parties, and published once a week for
three (3) consecutive weeks, in a newspaper or newspapers of general
circulation in the province.
SECTION
4. Opposition. — Any interested party must, within fifteen
(15) days from service, or from the last date of publication, of
the order referred to in the next preceding section, file his opposition
to the petition, stating the grounds or reasons therefor.
SECTION
5. Judgment. — If, from the evidence presented during the
hearing, the court is satisfied that the recognition of the minor
natural child was willingly and voluntarily made by the parent or
parents concerned, and that the recognition is for the best interest
of the child, it shall render judgment granting judicial approval
of such recognition.
SECTION
6. Service of judgment upon civil registrar. — A copy of the
judgment rendered in accordance with the preceding section shall
be served upon the civil registrar whose duty it shall be to enter
the same in the register.
RULE
106
Constitution of Family Home
SECTION
1. Who may constitute. — The head of a family owning a house
and the land on which it is situated may constitute the same into
a family home by filing a verified petition to that effect with
the Court of First Instance of the province or city were the property
is located. In the City of Manila, the petition shall be filed in
the Juvenile and Domestic Relations Court.
When
there is danger that a person obliged to give support may lose his
or her fortune because of grave mismanagement or on account of riotous
living, his or her spouse, if any, and a majority of those entitled
to be supported by him or by her may petition the Court of First
Instance for the creation of the family home.
SECTION
2. Contents of petition. — The petition shall contain the
following particulars:
(a)
Description of the property;
(b)
An estimate of its actual value;
(c)
A statement that the petitioner is actually residing in the premises;
(d)
The encumbrances thereon;
(e)
The names and addresses of all the creditors of the petitioner or
head of the family and of all mortgagees and other persons who have
an interest in the property;
(f)
The names of all the beneficiaries of the family home.
SECTION
3. Notice and publication. — The court shall notify the creditors,
mortgagees and all other persons who have an interest in the estate,
of the filing of the petition, causing copies thereof to be served
upon them, and published once a week for three (3) consecutive weeks
in a newspaper of general circulation. The petition shall, moreover,
be caused to be posted in a conspicuous place in the parcel of land
mentioned therein, and also in a conspicuous place of the municipal
building of the municipality or city in which the land is situated,
for at least fourteen (14) days prior to the day of the hearing.
SECTION
4. Objection and date of hearing. — In the notice and publication
required in the preceding section, the court shall require the interested
parties to file their objection to the petition within a period
of not less than thirty (30) days from receipt of notice or from
the date of last publication, and shall fix the date and time of
the hearing of the petition.
SECTION
5. Order. — After hearing, if the court finds that the actual
value of the proposed family home does not exceed twenty thousand
pesos, or thirty thousand pesos in chartered cities, and that no
third person is prejudiced thereby, or that creditors have been
given sufficient security for their credits, the petition shall
be approved.
SECTION
6. Registration of order. — A certified copy of the order
of the court approving the establishment of the family home shall
be furnished the register of deeds who shall record the same in
the registry of property.
RULE
107
Absentees
SECTION
1. Appointment of representative. — When a person disappears
from his domicile, his whereabouts being unknown, and without having
left an agent to administer his property, or the power conferred
upon the agent has expired, any interested party, relative or friend,
may petition the Court of First Instance of the place where the
absentee resided before his disappearance for the appointment of
a person to represent him provisionally in all that may be necessary.
In the City of Manila, the petition shall be filed in the Juvenile
and Domestic Relations Court.
SECTION
2. Declaration of absence; who may petition. — After the lapse
of two (2) years from his disappearance and without any news about
the absentee or since the receipt of the last news, or of five (5)
years in case the absentee has left a person in charge of the administration
of his property, the declaration of his absence and appointment
of a trustee or administrator may be applied for by any of the following:
(a)
The spouse present;
(b)
The heirs instituted in a will, who may present an authentic copy
of the same;
(c)
The relatives who would succeed by the law of intestacy; and
(d)
Those who have over the property of the absentee some right subordinated
to the condition of his death.
SECTION
3. Contents of petition. — The petition for the appointment
of a representative, or for the declaration of absence and the appointment
of a trustee or an administrator, must show the following:
(a)
The jurisdictional facts;
(b)
The names, ages, and residences of the heirs instituted in the will,
copy of which shall be presented, and of the relatives who would
succeed by the law of intestacy;
(c)
The names and residences of creditors and others who may have any
adverse interest over the property of the absentee;
(d)
The probable value, location and character of the property belonging
to the absentee.
SECTION
4. Time of hearing; notice and publication thereof . — When
a petition for the appointment of a representative, or for the declaration
of absence and the appointment of a trustee or administrator, is
filed, the court shall fix a date and place for the hearing thereof
where all concerned may appear to contest the petition.
Copies
of the notice of the time and place fixed for the hearing shall
be served upon the known heirs, legatees, devisees, creditors and
other interested persons, at least ten (10) days before the day
of the hearing, and shall be published once a week for three (3)
consecutive weeks prior to the time designated for the hearing,
in a newspaper of general circulation in the province or city where
the absentee resides, as the court shall deem best.
SECTION
5. Opposition. — Anyone appearing to contest the petition
shall state in writing his grounds therefor, and served a copy thereof
on the petitioner and other interested parties on or before the
date designated for the hearing.
SECTION
6. Proof at hearing; order. — At the hearing, compliance with
the provisions of section 4 of this rule must first be shown. Upon
satisfactory proof of the allegations in the petition, the court
shall issue an order granting the same and appointing the representative,
trustee or administrator for the absentee. The judge shall take
the necessary measures to safeguard the rights and interests of
the absentee and shall specify the powers, obligations and remuneration
of his representative, trustee or administrator, regulating them
by the rules concerning guardians.
In
case of declaration of absence, the same shall not take effect until
six (6) months after its publication in a newspaper of general circulation
designated by the court and in the Official Gazette.
SECTION
7. Who may be appointed. — In the appointment of a representative,
the spouse present shall be preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor
or otherwise incompetent, any competent person may be appointed
by the court.
In case of declaration of absence, the trustee or administrator
of the absentee's property shall be appointed in accordance with
the preceding paragraph.
SECTION
8. Termination of administration. — The trusteeship or administration
of the property of the absentee shall cease upon order of the court
in any of the following cases:
(a)
When the absentee appears personally or by means of an agent;
(b)
When the death of the absentee is proved and his testate or intestate
heirs appear;
(c)
When a third person appears, showing by a proper document that he
has acquired the absentee's property by purchase or other title.
In
these cases the trustee or administrator shall cease in the performance
of his office, and the property shall be placed at the disposal
of those who may have a right thereto.
RULE
108
Cancellation or Correction of Entries in the Civil Registry
SECTION
1. Who may file petition. — Any person interested in any act,
event, order or decree concerning the civil status of persons which
has been recorded in the civil register, may file a verified petition
for the cancellation or correction of any entry relating thereto,
with the Court of First Instance of the province where the corresponding
civil registry is located.
SECTION
2. Entries subject to cancellation or correction. — Upon good
and valid grounds, the following entries in the civil register may
be cancelled or corrected: (a) births; (b) marriages; (c) deaths;
(d) legal separations; (e) judgments of annulments of marriage;
(f) judgments declaring marriages void from the beginning; (g) legitimations;
(h) adoptions; (i) acknowledgments of natural children; (j) naturalization;
(k) election, loss or recovery of citizenship; (l) civil interdiction;
(m) judicial determination of filiation; (n) voluntary emancipation
of a minor; and (a) changes of name.
SECTION
3. Parties. — When cancellation or correction of an entry
in the civil register is sought, the civil registrar and all persons
who have or claim any interest which would be affected thereby shall
be made parties to the proceeding.
SECTION
4. Notice and publication. — Upon the filing of the petition,
the court shall, by an order, fix the time and place for the hearing
of the same, and cause reasonable notice thereof to be given to
the persons named in the petition. The court shall also cause the
order to be published once a week for three (3) consecutive weeks
in a newspaper of general circulation in the province.
SECTION
5. Opposition. — The civil registrar and any person having
or claiming any interest under the entry whose cancellation or correction
is sought may, within fifteen (15) days from notice of the petition,
or from the last date of publication of such notice, file his opposition
thereto.
SECTION
6. Expediting proceedings. — The court in which the proceeding
is brought may make orders expediting the proceedings, and may also
grant preliminary injunction for the preservation of the rights
of the parties pending such proceedings.
SECTION
7. Order. — After hearing, the court may either dismiss the
petition or issue an order granting the cancellation or correction
prayed for. In either case, a certified copy of the judgment shall
be served upon the civil registrar concerned who shall annotate
the same in his record.
RULE
109
Appeals in Special Proceedings
SECTION
1. Orders or judgments from which appeals may be taken. —
An interested person may appeal in special proceedings from an order
or judgment rendered by a Court of First Instance or a Juvenile
and Domestic Relations Court, where such order or judgment:
(a)
Allows or disallows a will;
(b)
Determines who are the lawful heirs of a deceased person, or the
distributive share of the estate to which such person is entitled;
(c)
Allows or disallows, in whole or in part, any claim against the
estate of a deceased person, or any claim presented on behalf of
the estate in offset to a claim against it;
(d)
Settles the account of an executor, administrator, trustee or guardian;
(e)
Constitutes, in proceedings relating to the settlement of the estate
of a deceased person, or the administration of a trustee or guardian,
a final determination in the lower court of the rights of the party
appealing, except that no appeal shall be allowed from the appointment
of a special administrator; and
(f)
Is the final order or judgment rendered in the case, and affects
the substantial rights of the person appealing, unless it be an
order granting or denying a motion for a new trial or for reconsideration.
SECTION
2. Advance distribution in special proceedings. — Notwithstanding
a pending controversy or appeal in proceedings to settle the estate
of a decedent, the court may, in its discretion and upon such terms
as it may deem proper and just, permit that such part of the estate
as may not be affected by the controversy or appeal be distributed
among the heirs or legatees, upon compliance with the conditions
set forth in Rule 90 of these rules. |