GENERAL PROVISION
RULE 72SUBJECT MATTERAND
APPLICABILITY OF
GENERAL RULES
Sec. 1. Subject matter
of special proceedings. - Rules of special proceedings are provided
for in the following cases:chanroblesvirtuallawlibrary
(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.
Sec. 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
PROCESSES
Sec. 1. Where estate
of deceased person 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.chanrobles virtua law library
Sec. 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.
Sec. 3. Process. -
In the exercise of probate jurisdiction, Court of First Instance may
issue
warrants and processes 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 of 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
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.
Sec. 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.chanrobles virtual law library
Sec. 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.
Sec. 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.
Sec. 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
Sec. 1. Allowances
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.chanrobles virtua law library
Sec. 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.
Sec. 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 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. chanrobles virtual law library
Sec. 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
The testator himself may,
during his lifetime, petition the court for the allowance of his will.
Sec. 2. Contents of petition.
- A petition for the allowance of a will must show, so far as known
to the petitioner:chanroblesvirtuallawlibrary
(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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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 be 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.
Sec. 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.chanrobles virtua law library
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.
Sec. 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 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.
Sec. 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.
Sec. 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.
Sec. 9. Grounds for disallowing
will. - The will shall be disallowed in any of the following cases:chanroblesvirtuallawlibrary
(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.
Sec. 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.chanrobles virtualawlibrary
Sec. 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 satisfactory 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.
Sec. 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.chan robles virtual law library
Sec. 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 PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER
Sec. 1. Will proved
outside
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.chanrobles virtua law library
Sec. 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.
Sec. 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.
Sec. 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
Sec. 1. Who are
incompetent
to serve as executors or administrators. - No person is competent
to
serve as executor or administrator who:chanroblesvirtuallawlibrary(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.
Sec. 2. Executor of
executor
not to administer estate. - The executor of an executor shall not,
as such, administer the estate of the first testator.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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:chanroblesvirtuallawlibrary
(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;chanrobles virtua law library
(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
Sec. 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
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.chanrobles virtualawlibrary
Sec. 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:chanroblesvirtuallawlibrary
(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.chanrobles virtualawlibrary
Sec. 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 Sections 3 and 4 of Rule 76. chan
robles virtual law library
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
Sec. 2. Powers and duties
of special administrator. - Such special administrator shall take
possession
and charge of 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.
Sec. 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
Sec. 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:chanroblesvirtuallawlibrary(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.
Sec. 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 a change in his circumstances, or for other
sufficient
cause, with the conditions named in the last preceding section.chan robles virtual law library
Sec. 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 3. Acts before revocation,
resignation, or removal to be valid. - The lawful acts 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.chanrobles virtua law library
Sec. 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 execution 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
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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 EXECUTORSAND
ADMINISTRATORS
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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 EXECUTORSAND
ADMINISTRATORS
Sec. 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.chanrobles virtualawlibrary
Sec. 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 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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 exceed 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.chan
robles virtual law library
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.
Sec. 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.
Sec. 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.
Sec. 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 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.chanrobles virtua law library
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 3. Heir may not sue
until have 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.chan robles virtual
law library
Sec. 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.
Sec. 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.
Sec. 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.chanrobles virtua law library
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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 creditors 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
Sec. 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 debts, the executor or
administrator shall pay the same within the time limited for that
purpose.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.chanrobles virtua law library
Sec. 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.chan robles
virtual
law library
Sec. 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
Sec. 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 encumbrances 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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:chanroblesvirtuallawlibrary
(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.
Sec. 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.chanrobles virtua law library
Sec. 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
Sec. 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
person 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.chanrobles virtualawlibrary
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.
Sec. 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.
Sec. 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.chan
robles virtual law library
Sec. 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
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 3. Hearing and judgment.
- Upon the 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. chan robles
virtual
law library
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.
Sec. 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.
Sec. 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.chanrobles virtua law library
RULE 92
VENUE
Sec. 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.chanrobles virtualawlibrary
In the City of Manila, the
proceedings shall be instituted in the Juvenile and Domestic Relations
Court.
Sec. 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
Sec. 2. Contents of petition.
- A petition for the appointment of a general guardian must show,
so
far as known to the petitioner:chanroblesvirtuallawlibrary
(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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.
Sec. 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.chan
robles virtual law library
Sec. 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.
Sec. 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 thereof. For good reasons the court may, however,
appoint another suitable person.chan
robles virtual law library
Sec. 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
Sec. 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:chanroblesvirtuallawlibrary(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.
Sec. 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.chanrobles virtualawlibrary
Sec. 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.chan robles
virtual
law library
RULE 95
SELLING AND
ENCUMBERING
PROPERTY OF WARD
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
Sec. 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.chan
robles
virtual law library
Sec. 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.chan
robles virtual law library
Sec. 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 thereon, 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.chan robles
virtual law library
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.chan robles
virtual law
library
Sec. 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, of 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.
Sec. 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.
Sec. 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.
Sec. 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.chanrobles virtua law library
RULE 98
TRUSTEES
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 6. Conditions included
in bond. - The following conditions shall be deemed to be a part of
the bond whether written therein or not:chanroblesvirtuallawlibrary
(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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.
Sec. 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.chan robles virtual law library
RULE 99
ADOPTION AND
CUSTODY
OF MINORS
Sec. 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.chanrobles virtualawlibrary
In the City of Manila, the
proceedings shall be instituted in the Juvenile and Domestic Relations
Court.
Sec. 2. Contents of petition.
- The petition for adoption shall contain the same allegations
required
in a petition for guardianship, to wit:chanroblesvirtuallawlibrary
(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.
Sec. 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.chanrobles virtualawlibrary
If the person to be adopted
is of age, only his or her consent and that of the spouse, if any,
shall
be required.
Sec. 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.chan robles virtual law library
Sec. 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.chanrobles virtua law library
Sec. 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.
Sec. 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.chan robles virtual law library
Sec. 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
Sec. 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.chanrobles virtualawlibrary
The adopter may, likewise,
petition the court for the rescission or revocation of the adoption in
any of these cases:chanroblesvirtuallawlibrary
(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.
Sec. 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.chanrobles virtualawlibrary
Sec. 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.chanrobles virtua law library
Sec. 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.
Sec. 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 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.chan robles
virtual
law library
RULE 101
PROCEEDINGS FOR
HOSPITALIZATIONOF INSANE PERSONS
Sec. 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 the 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 charged of him is opposed to his being taken to a hospital
or
other place for the insane.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
Sec. 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
the 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.
Sec. 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:chanroblesvirtuallawlibrary
(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.
Sec. 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.chanrobles virtua law library
Sec. 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.
Sec. 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.chan robles virtual law library
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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:chanroblesvirtuallawlibrary
(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.chanrobles virtua law library
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.
Sec. 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.chan robles
virtual
law library
Sec. 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.chan robles virtual law library
Sec. 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.
Sec. 17. Person discharged
not to be again 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.
Sec. 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.
Sec. 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
Sec. 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.chanrobles virtua law library
Sec. 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:chanroblesvirtuallawlibrary
(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.
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
Sec. 2. Contents of petition.
- The petition for judicial approval of a voluntary recognition of
a minor natural child shall contain the following allegations:chanroblesvirtuallawlibrarychanrobles virtua law library
(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.
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.chanrobles virtualawlibrary
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.
Sec. 2. Contents of petition.
The petition shall contain the following particulars:chanroblesvirtuallawlibrary
(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 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.
Sec. 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.chanrobles virtualawlibrary
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.chan
robles
virtual law library
Sec. 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:chanroblesvirtuallawlibrary
(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.
Sec. 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:chanroblesvirtuallawlibrary(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.chan robles virtual law library
Sec. 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.chanrobles virtualawlibrary
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.chanrobles virtua law library
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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:chanroblesvirtuallawlibrary
(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.chanrobles virtua law library
RULE 108
CANCELLATION OR
CORRECTION
OF ENTRIES IN THE CIVIL REGISTRY
Sec. 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.chanrobles virtualawlibrary
Sec. 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 (o) changes of name.
Sec. 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.chanrobles virtua law library
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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:chanroblesvirtuallawlibrary(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.
Sec. 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.chanrobles virtualawlibrary
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