(REPORT for RULE 72)

RULE 72: Subject Matter and Applicability of General Rule

Unlike Civil action which a party sues another for enforcement or protection of a right, or
prevention or redress of a wrong, Special Proceedings, on the other hand, is a remedy by which a
party seeks to establish a status, right or a particular fact, generally commenced by application,
petition or special form of pleading as may be provided for by the particular rule or law.

There is mostly a WIN-WIN situation or outcome in this proceedings as it is non-adversarial in

nature where everyone is working together cooperatively to reach the best resolution. Though, in
the course of the proceedings, there may be also oppositors.

Below are the Subject Matters of Special Proceedings as provided under the Rule 72 of the Rules
of Court:

Section 1. Subject matter of special proceedings. — Rules of special proceedings are

provided for in the following cases:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation of correction of entries in the civil registry.

Note however that Special proceedings are not limited to the cases enumerated in Section 1 of
this rule, but includes cases the purpose of which is to establish the status or right of a party or a
particular fact (Herrera, 2005, p. 2).

Like Special proceedings under the Various Laws:

1. Summary proceedings under the Family Code

2. Actions mentioned in the Family Courts Act of 1997 (RA 8369)
- declaration of absolute nullity of void marriages and annulment of voidable
marriages
- legal separation
- provisional orders on support, custody of minor children and administration of
common property
- violence against women and their children and protection orders
3. Proceedings under:
Child & Youth Welfare Code (PD 1083)
Child Abuse Act (RA 7610)
Child Employment Act (RA 7658)
- declaration of status as abandoned, dependent or neglected children
- voluntary or involuntary commitment of children
- suspension, termination or restoration of parental authority
4. Domestic and Inter-country adoption
5. Petition for corporate rehabilitation
6. Petition for writ of amparo
7. Petition for writ of habeas data
8. Arbitration

Section 2. Applicability of rules of civil actions. — In the absence of special provisions, the
rules provided for in ordinary actions shall be, as far as practicable, applicable in special
proceedings.

As settled in the jurisprudence, in the absence of special provisions, rules in ordinary actions
may be applied in special proceedings as much as possible and where doing so would not pose
an obstacle to said proceedings. Nowhere in the Rules of Court does it categorically say that
rules in ordinary actions are inapplicable or merely suppletory to special proceedings. Provisions
of the Rules of Court requiring a certification of non-forum shopping for complaints and
initiatory pleadings, a written explanation for non-personal service and filing, and the payment of
filing fees for money claims against an estate would not in any way obstruct probate
proceedings, thus, they are applicable to special proceedings such as the settlement of the estate
of a deceased person.
(Sheker versus Estate of Alice Sheker, G.R. No. 157912 Dec 13, 2007)
 (CASE for RULE 72)
FULL TEXT:

BROADWELL HAGANS, Petitioner, v. ADOLPH WISLIZENUS, Judge of First Instance of

Cebu, ET AL., Respondents.
Block, Johnston & Greenbaum for Petitioner.
The respondent judge in his own behalf.
No appearance for the other respondents.
G.R. No. 16680. September 13, 1920
JOHNSON, J. :

This is an original petition, presented in the Supreme Court, for the writ of certiorari. The facts
alleged in the petition are admitted by a demurrer. The only question presented is, whether or not
a judge of the Court of First Instance, in "special proceedings," is authorized under the law to
appoint assessors for the purpose of fixing the amount due to an administrator or executor for his
services and expenses in the care, management, and settlement of the estate of a deceased person.

The respondent judge, in support of his demurrer, argues that the provisions of Act No. 190
permit him to appoint assessors in "special proceedings." The petitioner contends that no
authority in law exists for the appointment of assessors in such proceedings.

The only provisions of law which authorize the appointment of assessors are the following: (a)
Sections 57-62 of Act No. 190; (b) sections 153-161 of Act No. 190; (c) section 44 (a) of Act
No. 267; (d) section 2477 of Act No. 2711; and (e) section 2 of Act No. 2369.

Said section 44 (a) of Act No. 267 and section 2477 of Act No. 2711 apply to the city of Manila
only. Act No. 2369 provides for the appointment of assessors in criminal cases only. Sections 57-
62 of Act No. 190 provide for the appointment of assessors in the court of the justice of the
peace. Therefore, the only provisions of law which could, by any possibility, permit the
appointment of assessors in "special proceedings" are sections 153-161 of Act No. 190.

Section 154 provides that "either party to an action may apply in writing to the judge for
assessors to sit in the trial. Upon the filing of such application, the judge shall direct that
assessors be provided, . . ."cralaw virtua1aw library
Is a "special proceeding," like the present, an "action" ? If it is, then, the court is expressly
authorized by said section 154 to appoint assessors. But we find, upon an examination of section
1 of Act No. 190, which gives us an interpretation of the words used in said Act, that a
distinction is made between an "action" and a "special proceeding." Said section 1 provides that
an "action" means an ordinary suit in a court of justice, while "every other remedy furnished by
law is a ’special proceeding.’"

In view of the interpretation given to the words "action" and "special proceeding" by the
Legislature itself, we are driven to the conclusion that there is a distinction between an "action"
and a "special proceeding," and that when the Legislature used the word "action" it did not mean
"special proceeding."cralaw virtua1aw library

There is a marked distinction between an "action" and a "special proceeding." An action is a

formal demand of one’s legal rights in a court of justice in the manner prescribed by the court or
by the law. It is the method of applying legal remedies according to definite established rules.
(People v. County Judge, 13 How. Pr. [N. Y. ], 398.) The term "special proceeding" may be
defined as an application or proceeding to establish the status or right of a party, or a particular
fact. (Porter v. Purdy, 29 N. Y., 106, 110; Chapin v. Thompson, 20 Cal., 681.) Usually, in special
proceedings, no formal pleadings are required, unless the statute expressly so provides. The
remedy in special proceedings is generally granted upon an application or motion. Illustrations of
special proceedings, in contradistinction to actions, may be given: Proceedings for the
appointment of an administrator, guardians, tutors; contest of wills; to perpetuate testimony; to
change the name of persons; application for admission to the bar, etc., etc. (Bliss on Code
Pleading, 3d ed., sec. 1.)

From all of the foregoing we are driven to the conclusion that in proceedings like the present the
judge of the Court of First Instance is without authority to appoint assessors. Therefore, the
demurrer is hereby overruled and the prayer of the petition is hereby granted, and it is hereby
ordered and decreed that the order of the respondent judge appointing the assessors described in
the petition be and the same is hereby annulled and set aside; and, without any finding as to
costs, it is so ordered.

Araullo, Malcolm, Avanceña, Moir, and Villamor, JJ., concur.

CASE DIGEST:
BROADWELL HAGANS, petitioner,
vs.
ADOLPH WISLIZENUS, Judge of First Instance of Cebu, ET AL., respondents.
G.R. No. 16680 September 13, 1920
JOHNSON, J.:

FACTS: The respondent Judge Wislizenus argued that the provisions of Act No. 190 permitted
him to appoint assessors in special proceedings. However, the petitioner Hagans contended that
no authority in law exists for the appointment of assessors in such proceedings. Thus, petitioner
herein filed an original petition, presented in the Supreme Court, for the writ of certiorari. Hence,
this petition.

ISSUE: Whether or not the Judge was authorized by law in a special proceeding to appoint
assessors for purposes mentioned above.

HELD: No. The respondent judge was not authorized to appoint assessors in special proceedings.
Supreme Court made a distinct on what is the difference of "action" and "special proceeding".
The former means an ordinary suit in a court of justice while the latter is every other remedy
furnished by law. An action is a formal demand of one's legal rights in a court of justice in the
manner prescribed by the court of law. It is a method applying legal remedies according to
definite established rules. While a special proceeding may be defined as an application or
proceedings,no formal pleadings are required, unless the statute expressly so provides. The
remedy in special proceedings is generally granted upon an application or motion.
Applying in the case at bar, here, being different in nature, the Supreme Court held that judge is
not authorized by law to appoint assessors because such authority is properly given to the judge
in an ordinary action and not in a special proceeding.
 (REPORT for RULE 78)

RULE 78: LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO

WHOM ISSUED
Letter Testamentary - Appointment issued by a probate court after the will has been admitted
to probate to the executor named in the will to administer the estate of the deceased testator,
provided the executor named in the will is competent, accepts the trust and gives a bond.

Letters of Administration - Appointment issued by the probate court to a person other than the
executor named in the will or if the person left no will.

Who are incompetent to serve as executors or administrators?

EXECUTOR– person named in the will to administer decedent’s estate to carry out provisions
thereof
ADMINISTRATOR– person appointed by the court to administer the estate

Administrator need not be an heir – can be a stranger to the deceased, such as a creditor.

GROUNDS FOR INCOMPETENCE (Section 1, Rule 78)

1. Minority
2. Non-residence
3. Unfitness
a. drunkenness
b. incompetence
c. want of understanding
d. want of integrity
e. conviction of offense involving moral turpitude
(anything done contrary to justice, honesty, good morals)

A married woman may serve as an administrator and marriage shall not affect her authority to
serve under a previous appointment.
(Section 3, Rule 78)

Order of preference in appointment of administrator (Section 6, Rule 78)

1. surviving spouse – partner in conjugal partnership and heir of deceased
2. next of kin
3. person requested by spouse or next of kin
4. principal creditors
a. if spouse or next of kin is incompetent or unwilling
b. neglects for 30 days after death of decedent to apply for administration, or to request that
administration be granted to some other person
5. other person selected by court – if no creditor competent or willing.

(CASE for RULE 78)

FULL TEXT:

G.R. No. L-17633 October 19, 1966

CIRILO LIM, petitioner-appellant,
vs.
BASILISA DIAZ-MILLAREZ, oppositor-appellee.
Januario L. Jison, Sr. for petitioner-appellant.
Amado B. Parreño, Sr. for oppositor-appellee.
REGALA, J.:
On February 26, 1954, Cirilo Lim, claiming to be a nephew of the late Jose Millarez who died
intestate on October 22, 1953, filed with the Court of First Instance of Negros Occidental a
petition for his appointment as judicial administrator of the estate of the deceased. The petition
alleged that the deceased left no relatives such as descendants, ascendants or surviving spouse,
except collaterals.
To the said petition, Basilisa Diaz-Millarez, claiming to be a widow of the late Jose Millarez,
filed an opposition on two grounds: that the petitioner has an adverse interest in the estate; and
that the properties of the estate are the subject matter of a litigation between her as plaintiff and
Cirilo Lim as defendant in Civil Case No. 2986.
Trial of the case was postponed several times. When the case was called for hearing on March
17, 1959, both parties manifested the existence of a litigation between them over the properties
of the estate. Hence, the trial court issued the following order:
When this expediente was called for hearing today, Atty. Enrique Mariño for the petitioner and
Atty. Amado B. Parreño, Sr. for the oppositor appeared. Both manifested that there is an ordinary
civil case between the parties herein, that is Basilisa Diaz-Millarez, as plaintiff and Cirilo Lim, as
defendant, litigating between them on the ownership of the properties belonging to the deceased
Jose Millarez, in the sense that while plaintiff Basilisa Diaz-Millarez in said civil case, now
oppositor in the special proceeding alleged that she is the legitimate widow of the deceased Jose
Millarez, yet defendant Cirilo Lim in said civil case, now petitioner herein, alleged that he is
contesting said allegation because she is not the legitimate spouse of the deceased; that the said
civil case was already decided in favor of the defendant therein and against the plaintiff by the
Second Sala of this Court and now pending appeal in the Court of Appeals.
Under the above considerations, the present expediente is of no consequence. However, upon the
final termination of said civil case, the parties concerned without prejudice can file another
application for the judicial administration of the property involved in this administration. It is to
be noted that this expediente was filed way back on February 26, 1954 that is more than 5 years
and neither a special nor a regular administrator has been appointed so that the dismissal of the
expediente would not be prejudicial to any of the parties interested in the same.
PREMISES CONSIDERED, this expediente is ordered dismissed.
Failing in his motion for the reconsideration of this order, the petitioner, Cirilo Lim, brought the
case to the Court of Appeals but that court has certified the appeal to Us for the reason that there
is no question of fact involved.
Meanwhile, the civil case between the parties which was also elevated to the Court of Appeals
(CA-G.R. 24561-R) was decided on February 18, 1965. From the body of the decision, it appears
that Basilisa Diaz-Millarez sought to recover from Cirilo Lim one-half of the total amount of
P22,000 allegedly delivered to him by her and the deceased Jose Millarez on various occasions
and to declare her as the owner of ½ of the profits and gains derived therefrom, on the ground
that Jose Millarez and she used to live as husband and wife for about 23 years and as such she is
entitled to ½ of the property held in common by them. She asserted further that since she
contributed capital and labor to the tobacco business in which she and the deceased were
engaged and from which they gave P22,000 in cash to Cirilo Lim, she would be entitled to ½ of
the capital and ½ of the proceeds and profits derived from such capital. In answer, Cirilo Lim
alleged that the money he received from Jose Millarez on various occasions was handed to one
Tan Suaco for investment in the tobacco business. While the trial court, after hearing, ordered
Lim to make an accounting of the P22,000 invested in the tobacco business to be submitted to
court, the Court of Appeals, on the other hand, made the following conclusion:
We agree with the court a quo, that the plaintiff Basilisa is entitled to ½ of the estate of the late
Jose because she contributed labor and capital in the form of cash to a common fund with Jose
during the period from 1930 up to the date of the death of Jose in 1953.
Accordingly, the judgment a quo is set aside and the records of this case are hereby remanded to
the court a quo with instructions (1) that it appoints a qualified certified public accountant to
examine with painstaking care the documentary evidence presented and to determine how much
over and above the amount of P12,500 was invested by the late Jose Millarez and the plaintiff in
the tobacco business together with the defendant Lim, and to assess the extent of the profits and
gains derived from such investment; (2) to admit such other evidence as the court may consider
material and relevant; and (3) to render judgment anew on the basis of the examination to be
conducted by the qualified certified public accountant and such further evidence, if any, as shall
be presented, adjudicating in favor of the plaintiff Basilisa Diaz-Millarez ½ of the capital and ½
of the profits and gains derived therefrom that properly pertain to the late Jose Millarez after the
accounting shall have been accomplished. No pronouncement as to costs.
From what appears above, the claim which Basilisa has against Cirilo in the civil case supposed
to be now again pending in the trial court, is based on her declared right to one-half of the estate
of the deceased. It cannot, therefore, be denied that Cirilo Lim, as a relative of the deceased, has
some interest adverse to that of Basilisa. Shown to have some liabilities to Basilisa and to the
estate as a whole, Cirilo can not compatibly perform the duties of an administrator. In this
jurisdiction, one is considered to be unsuitable for appointment as administrator when he has
adverse interest of some kind or hostility to those immediately interested in the estate. (Sioca v.
Garcia, 44 Phil. 711; Arevalo v. Bustamante, 69 Phil. 656).
The determination of a person's suitability for the office of judicial administrator rests, to a great
extent, in the sound judgment of the court exercising the power of appointment and said
judgment is not to be interfered with on appeal unless the said court is clearly in error. (Sioca v.
Garcia, supra).
IN VIEW HEREOF, the order appealed from is hereby affirmed, with costs against the
petitioner-appellant.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro,
JJ., concur.

CASE DIGEST:
CIRILO LIM, petitioner-appellant,
vs.
BASILISA DIAZ-MILLAREZ, oppositor-appellee.
G.R. No. L-17633 October 19, 1966
REGALA, J.:

Facts: In 1953, Jose Millarez died intestate thus, petitioner Lim, who claimed to be the nephew
of the deceased, filed a petition for his appointment as judicial administrator of the estate with
the Court of First Instance of Negros Occidental. He also alleged that the deceased left no
relatives such as descendants, ascendants or surviving spouse, except collaterals.
To the said petition, Basilisa Diaz-Millarez, claiming to be a widow of the late Jose Millarez,
filed an opposition on two grounds: that the petitioner has an adverse interest in the estate; and
that the properties of the estate are the subject matter of a litigation between her as plaintiff and
Cirilo Lim as defendant in Civil Case.
In an independent civil action, the facts showed that Lim has some liabilities in the estate.
In trial court, expediente is ordered dismissed. Failing in his motion for the reconsideration of
this order, the petitioner, Cirilo Lim, brought the case to the Court of Appeals but that court has
certified the appeal to SC. Hence, this petition.

Issue: Whether or not Cirilo can be an administrator of the estate.

Held: Supreme Court ruled that the petitioner Cirilo was indebted to the decedent's estate, he
cannot compatibly perform the duties of an administrator. In this jurisdiction, one is considered
to be unsuitable for appointment as administrator when he has an adverse interest of some kind
or hostility to those immediately interested in the estate.

The determination of a person's suitability for the position of judicial administrator rests to a
great extent in the judgment of the court exercising the power of appointment. Said discretion is
not to be inferred with on appeal unless the said court is clearly in error.

Here, it cannot be denied that Cirilo Lim, as a relative of the deceased, has some interest
adverse to that of Basilisa and has shown to have some liabilities to Basilisa and to the estate as a
whole. Thus, Cirilo cannot compatibly perform the duties of an administrator.
 (REPORT for RULE 86)
RULE 86 (SECTIONS 6-7): CLAIMS AGAINST ESTATE

Section 6. Solidary obligation of decedent.

If the obligation is SOLIDARY, the creditor is mandated to file a claim against the decedent as if
he were the only debtor (to collect the entire amount). If the creditor succeeds in collecting from
the decedent debtor, the estate has the right to recover the respective contributions of the other
debtors.
If the obligation is JOINT, the claim shall be properly limited to the portion owed by the
decedent.

Section 7. Mortgage debt due from estate.

This section grants to the mortgagee three distinct, independent and mutually exclusive remedies
that can be alternatively pursued by the mortgage creditor for the satisfaction of his credit in case
the mortgagor dies, among them:
1. to waive the mortgage and claim the entire debt from the estate of the mortgagor as an
ordinary claim;
2. to foreclose the mortgage judicially and prove any deficiency as an ordinary claim; and
3. to rely on the mortgage exclusively, foreclosing the same at anytime before it is barred by
prescription without right to file a claim for any deficiency.
Notably, an election of one remedy operates as a waiver of the other.

(CASE for RULE 86)

FULL TEXT:

HEIRS OF THE LATE SPOUSES FLA VIANO MAGLASANG and SALUD ADAZA-
MAGLASANG, namely, OSCAR A. MAGLASANG, EDGAR A. MAGLASANG,
CONCEPCION CHONA A. MAGLASANG, GLENDA A. MAGLASANG-ARNAIZ, LERMA
A. MAGLASANG, FELMA A. · MAGLASANG, FE DORIS A. MAGLASANG, LEOLINO A.
MAGLASANG, MARGIE LEILA A. MAGLASANG,MA. MILALIE A. MAGLASANG,
SALUD A. MAGLASANG, and MA. FLASALIE A. MAGLASANG, REPRESENTING THE
ESTATES OF THEIR AFORE-NAMEDDECEASED PARENTS, Petitioners,
vs.
 MANILA BANKING CORPORATION, now substituted by FIRST SOVEREIGN ASSET
MANAGEMENT SPV-AMC, INC. FSAMI, Respondent.
G.R. No. 171206 September 23, 2013
PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari are the Decision dated July 20, 2005 and
Resolution dated January 4, 2006 of the Court of Appeals (CA) in CA-G.R. CV No. 50410
which dismissed petitioners’ appeal and affirmed the Decision dated April 6, 1987 of the
Regional Trial Court of Ormoc City, Branch 12 (RTC) directing petitioners to jointly and
severally pay respondent Manila Banking Corporation the amount of ₱434,742.36, with
applicable interests, representing the deficiency of the former’s total loan obligation to the latter
after the extra-judicial foreclosure of the real estate mortgage subject of this case, including
attorney’s fees and costs of suit.
The Facts
On June 16, 1975, spouses Flaviano and Salud Maglasang (Sps.Maglasang) obtained a credit line
from respondent in the amount of ₱350,000.00 which was secured by a real estate mortgage
executed over seven of their properties located in Ormoc City and the Municipality of Kananga,
Province of Leyte. They availed of their credit line by securing loans in the amounts of
₱209,790.50 and ₱139,805.83 on October 24, 1975and March 15, 1976, respectively, both of
which becoming due and demandable within a period of one year. Further, the parties agreed that
the said loans would earn interest at 12% per annum (p.a.) and an additional 4% penalty would
be charged upon default.
After Flaviano Maglasang (Flaviano) died intestate on February 14,1977, his widow Salud
Maglasang (Salud) and their surviving children, herein petitioners Oscar (Oscar), Concepcion
Chona, Lerma, Felma, FeDoris, Leolino, Margie Leila, Ma. Milalie, Salud and Ma. Flasalie, all
surnamed Maglasang, and Glenda Maglasang-Arnaiz, appointed their brother petitioner Edgar
Maglasang (Edgar) as their attorney-in-fact. Thus, on March 30, 1977, Edgar filed a verified
petition for letters of administration of the intestate estate of Flaviano before the then Court of
First Instance of Leyte, Ormoc City, Branch 5 (probate court), docketed as Sp. Proc. No. 1604-0.
On August 9, 1977, the probate court issued an Order granting the petition, thereby appointing
Edgar as the administrator of Flaviano’s estate.
In view of the issuance of letters of administration, the probate court, on August 30, 1977, issued
a Notice to Creditors for the filing of money claims against Flaviano’s estate. Accordingly, as
one of the creditors of Flaviano, respondent notified the probate court of its claim in the amount
of ₱382,753.19 as of October 11, 1978, exclusive of interests and charges.
During the pendency of the intestate proceedings, Edgar and Oscar were able to obtain several
loans from respondent, secured by promissory notes which they signed.
In an Order dated December 14, 1978 (December 14, 1978 Order),the probate court terminated
the proceedings with the surviving heirs executing an extra-judicial partition of the properties of
Flaviano’s estate. The loan obligations owed by the estate to respondent, however, remained
unsatisfied due to respondent’s certification that Flaviano’s account was undergoing a
restructuring. Nonetheless, the probate court expressly recognized the rights of respondent under
the mortgage and promissory notes executed by the Sps. Maglasang, specifically, its "right to
foreclose the same within the statutory period."
In this light, respondent proceeded to extra-judicially foreclose the mortgage covering the Sps.
Maglasang’s properties and emerged as the highest bidder at the public auction for the amount of
₱350,000.00. There, however, remained a deficiency on Sps. Maglasang’s obligation to
respondent. Thus, on June 24, 1981, respondent filed a suit to recover the deficiency amount of
₱250,601.05 as of May 31, 1981 against the estate of Flaviano, his widow Salud and petitioners,
docketed as Civil Case No. 1998-0.
The RTC Ruling and Subsequent Proceedings
After trial on the merits, the RTC (formerly, the probate court) rendered a Decision on April 6,
1987 directing the petitioners to pay respondent, jointly and severally, the amount of
₱434,742.36 with interest at the rate of 12% p.a., plus a 4% penalty charge, reckoned from
September 5,1984 until fully paid. The RTC found that it was shown, by a preponderance of
evidence, that petitioners, after the extra-judicial foreclosure of all the properties mortgaged, still
have an outstanding obligation in the amount and as of the date as above-stated. The RTC also
found in order the payment of interests and penalty charges as above-mentioned as well as
attorney’s fees equivalent to 10% of the outstanding obligation.
Dissatisfied, petitioners elevated the case to the CA on appeal, contending, inter alia, that the
remedies available to respondent under Section 7, Rule 86 of the Rules of Court (Rules) are
alternative and exclusive, such that the election of one operates as a waiver or abandonment of
the others. Thus, when respondent filed its claim against the estate of Flaviano in the proceedings
before the probate court, it effectively abandoned its right to foreclose on the mortgage.
Moreover, even on the assumption that it has not so waived its right to foreclose, it is nonetheless
barred from filing any claim for any deficiency amount.
During the pendency of the appeal, Flaviano’s widow, Salud, passed away on July 25, 1997.
The CA Ruling
In a Decision dated July 20, 2005, the CA denied the petitioners’ appeal and affirmed the RTC’s
Decision. At the outset, it pointed out that the probate court erred when it, through the December
14, 1978 Order, closed and terminated the proceedings in Sp. Proc. No. 1604-0 without first
satisfying the claims of the creditors of the estate – in particular, respondent – in violation of
Section 1, Rule 90 of the Rules. As a consequence, respondent was not able to collect from the
petitioners and thereby was left with the option of foreclosing the real estate mortgage. Further,
the CA held that Section 7, Rule 86 of the Rules does not apply to the present case since the
same does not involve a mortgage made by the administrator over any property belonging to the
estate of the decedent. According to the CA, what should apply is Act No. 3135 which entitles
respondent to claim the deficiency amount after the extra-judicial foreclosure of the real estate
mortgage of Sps. Maglasang’s properties.
Petitioners’ motion for reconsideration was subsequently denied in a Resolution dated January 4,
2006. Hence, the present recourse.
The Issue Before the Court
The essential issue in this case is whether or not the CA erred in affirming the RTC’s award of
the deficiency amount in favor of respondent.
Petitioners assert that it is not Act No. 3135 but Section 7, Rule 86of the Rules which applies in
this case. The latter provision provides alternative and exclusive remedies for the satisfaction of
respondent’s claim against the estate of Flaviano. Corollarily, having filed its claim against the
estate during the intestate proceedings, petitioners argue that respondent had effectively waived
the remedy of foreclosure and, even assuming that it still had the right to do so, it was precluded
from filing a suit for the recovery of the deficiency obligation.
Likewise, petitioners maintain that the extra-judicial foreclosure of the subject properties was
null and void, not having been conducted in the capital of the Province of Leyte in violation of
the stipulations in the real estate mortgage contract. They likewise deny any personal liability for
the loans taken by their deceased parents.
The Court’s Ruling
The petition is partly meritorious.
Claims against deceased persons should be filed during the settlement proceedings of their estate.
Such proceedings are primarily governed by special rules found under Rules 73 to 90 of the
Rules, although rules governing ordinary actions may, as far as practicable, apply suppletorily.
Among these special rules, Section 7, Rule 86 of the Rules (Section 7, Rule86) provides the rule
in dealing with secured claims against the estate:
SEC. 7. Mortgage debt due from estate. – A creditor holding a claim against the deceased
secured by a 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 or 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 adjudged it to be for the best interest of the
estate that such redemption shall be made. (Emphasis and underscoring supplied)
As the foregoing generally speaks of "a creditor holding a claim against the deceased secured by
a mortgage or other collateral security" as above-highlighted, it may be reasonably concluded
that the aforementioned section covers all secured claims, whether by mortgage or any other
form of collateral, which a creditor may enforce against the estate of the deceased debtor. On the
contrary, nowhere from its language can it be fairly deducible that the said section would – as the
CA interpreted – narrowly apply only to mortgages made by the administrator over any property
belonging to the estate of the decedent. To note, mortgages of estate property executed by the
administrator, are also governed by Rule 89 of the Rules, captioned as "Sales, Mortgages, and
Other Encumbrances of Property of Decedent."
In this accord, it bears to stress that the CA’s reliance on Philippine National Bank v. CA (PNB)
was misplaced as the said case did not, in any manner, limit the scope of Section 7, Rule 86. It
only stated that the aforesaid section equally applies to cases where the administrator mortgages
the property of the estate to secure the loan he obtained. Clearly, the pronouncement was a ruling
of inclusion and not one which created a distinction. It cannot, therefore, be doubted that it is
Section 7, Rule 86which remains applicable in dealing with a creditor’s claim against the
mortgaged property of the deceased debtor, as in this case, as well as mortgages made by the
administrator, as that in the PNB case.
Jurisprudence breaks down the rule under Section 7, Rule 86 and explains that the secured
creditor has three remedies/options that he may alternatively adopt for the satisfaction of his
indebtedness. In particular, he may choose to: (a) waive the mortgage and claim the entire debt
from the estate of the mortgagor as an ordinary claim; (b) foreclose the mortgage judicially and
prove the deficiency as an ordinary claim; and (c) rely on the mortgage exclusively, or other
security and foreclose the same before it is barred by prescription, without the right to file a
claim for any deficiency. It must, however, be emphasized that these remedies are distinct,
independent and mutually exclusive from each other; thus, the election of one effectively bars
the exercise of the others. With respect to real properties, the Court in Bank of America v.
American Realty Corporation pronounced:
In our jurisdiction, the remedies available to the mortgage creditor are deemed alternative and
not cumulative. Notably, an election of one remedy operates as a waiver of the other. For this
purpose, a remedy is deemed chosen upon the filing of the suit for collection or upon the filing of
the complaint in an action for foreclosure of mortgage, pursuant to the provision of Rule 68 of
the 1997 Rules of Civil Procedure. As to extrajudicial foreclosure, such remedy is deemed
elected by the mortgage creditor upon filing of the petition not with any court of justice but with
the Office of the Sheriff of the province where the sale is to be made, in accordance with the
provisions of Act No. 3135, as amended by Act No.4118. (Emphasis supplied)
Anent the third remedy, it must be mentioned that the same includes the option of extra-
judicially foreclosing the mortgage under Act No. 3135,as availed of by respondent in this case.
However, the plain result of adopting the last mode of foreclosure is that the creditor waives his
right to recover any deficiency from the estate. These precepts were discussed in the PNB case,
citing Perez v. Philippine National Bank which overturned the earlier Pasno v. Ravina ruling:
Case law now holds that this rule grants to the mortgagee three distinct, independent and
mutually exclusive remedies that can be alternatively pursued by the mortgage creditor for the
satisfaction of his credit in case the mortgagor dies, among them:
(1) to waive the mortgage and claim the entire debt from the estate of the mortgagor as an
ordinary claim;
(2) to foreclose the mortgage judicially and prove any deficiency as an ordinary claim; and
(3) to rely on the mortgage exclusively, foreclosing the same at anytime before it is barred by
prescription without right to file a claim for any deficiency
In Perez v. Philippine National Bank, reversing Pasno vs. Ravina, we held:
The ruling in Pasno v. Ravina not having been reiterated in any other case, we have carefully
reexamined the same, and after mature deliberation have reached the conclusion that the
dissenting opinion is more in conformity with reason and law. Of the three alternative courses
that section 7, Rule 87 (now Rule 86), offers the mortgage creditor, to wit, (1) to waive the
mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim; (2)
foreclose the mortgage judicially and prove any deficiency as an ordinary claim; and (3) to rely
on the mortgage exclusively, foreclosing the same at any time before it is barred by prescription,
without right to file a claim for any deficiency, the majority opinion in Pasno v. Ravina, in
requiring a judicial foreclosure, virtually wipes out the third alternative conceded by the Rules to
the mortgage creditor, and which would precisely include extra-judicial foreclosures by contrast
with the second alternative.
The plain result of adopting the last mode of foreclosure is that the creditor waives his right to
recover any deficiency from the estate. Following the Perez ruling that the third mode includes
extrajudicial foreclosure sales, the result of extrajudicial foreclosure is that the creditor waives
any further deficiency claim. x x x. (Emphases and underscoring supplied; italics in the original)
To obviate any confusion, the Court observes that the operation of Act No. 3135 does not
entirely discount the application of Section 7, Rule 86, or vice-versa. Rather, the two
complement each other within their respective spheres of operation. On the one hand, Section 7,
Rule 86 lays down the options for the secured creditor to claim against the estate and, according
to jurisprudence, the availment of the third option bars him from claiming any deficiency
amount. On the other hand, after the third option is chosen, the procedure governing the manner
in which the extra-judicial foreclosure should proceed would still be governed by the provisions
of Act No. 3135.Simply put, Section 7, Rule 86 governs the parameters and the extent to which a
claim may be advanced against the estate, whereas Act No. 3135sets out the specific procedure
to be followed when the creditor subsequently chooses the third option – specifically, that of
extra-judicially foreclosing real property belonging to the estate. The application of the
procedure under Act No. 3135 must be concordant with Section 7, Rule 86 as the latter is a
special rule applicable to claims against the estate, and at the same time, since Section 7, Rule 86
does not detail the procedure for extra-judicial foreclosures, the formalities governing the
manner of availing of the third option – such as the place where the application for extra-judicial
foreclosure is filed, the requirements of publication and posting and the place of sale – must be
governed by Act No. 3135.
In this case, respondent sought to extra-judicially foreclose the mortgage of the properties
previously belonging to Sps. Maglasang (and now, their estates) and, therefore, availed of the
third option. Lest it be misunderstood, it did not exercise the first option of directly filing a claim
against the estate, as petitioners assert, since it merely notified the probate court of the
outstanding amount of its claim against the estate of Flaviano and that it was currently
restructuring the account. Thus, having unequivocally opted to exercise the third option of extra-
judicial foreclosure under Section 7, Rule 86, respondent is now precluded from filing a suit to
recover any deficiency amount as earlier discussed.
As a final point, petitioners maintain that the extra-judicial foreclosure of the subject properties
was null and void since the same was conducted in violation of the stipulation in the real estate
mortgage contract stating that the auction sale should be held in the capital of the province where
the properties are located, i.e., the Province of Leyte.
The Court disagrees.
As may be gleaned from the records, the stipulation under the real estate mortgage executed by
Sps. Maglasang which fixed the place of the foreclosure sale at Tacloban City lacks words of
exclusivity which would bar any other acceptable for a wherein the said sale may be conducted,
to wit:
It is hereby agreed that in case of foreclosure of this mortgage under Act 3135, the auction sale
shall be held at the capital of the province if the property is within the territorial jurisdiction of
the province concerned, or shall be held in the city if the property is within the territorial
jurisdiction of the city concerned; x x x.
Case law states that absent such qualifying or restrictive words to indicate the exclusivity of the
agreed forum, the stipulated place should only be as an additional, not a limiting venue. As a
consequence, the stipulated venue and that provided under Act No. 3135 can be applied
alternatively.
In particular, Section 2 of Act No. 3135 allows the foreclosure sale to be done within the
province where the property to be sold is situated, viz.:
SEC. 2. Said sale cannot be made legally outside of the province which the property sold is
situated; and in case the place within said province in which the sale is to be made is subject to
stipulation, such sale shall be made in said place or in the municipal building of the municipality
in which the property or part thereof is situated. (Italics supplied) ..
In this regard, since the auction sale was conducted in Ormoc City, which is within the territorial
jurisdiction of the Province of Leyte, then the Court finds sufficient compliance with the above-
cited requirement.
All told, finding that the extra-judicial foreclosure subject of this case was properly conducted in
accordance with the formalities of Act No. 3135,the Court upholds the same as a valid exercise
of respondent's third option under Section 7, Rule 86. To reiterate, respondent cannot, however,
file any suit to recover any deficiency amount since it effectively waived its right thereto when it
chose to avail of extra-judicial foreclosure as jurisprudence instructs.
WHEREFORE, the petition is PARTLY GRANTED. The complaint for the recovery of the
deficiency amount after extra-judicial foreclosure filed by respondent Manila Banking
Corporation is hereby DISMISSED. The extra-judicial foreclosure of the mortgaged properties,
however, stands.
SO ORDERED.

CASE DIGEST:

HEIRS OF THE LATE SPOUSES FLA VIANO MAGLASANG and SALUD ADAZA-
MAGLASANG, Petitioners,
vs.
MANILA BANKING CORPORATION, now substituted by FIRST SOVEREIGN ASSET
MANAGEMENT SPV-AMC, INC. FSAMI, Respondent.
G.R. No. 171206 September 23, 2013
PERLAS-BERNABE, J.:

FACTS: Spouses Flaviano and Salud Maglasang obtained a credit line from Manila Banking
Corporation (MBC), which secured by a real estate mortgage executed over seven of their
properties. After Flaviano died intestate, Salud and their children appointed Edgar Maglasang as
their attorney-in-fact. Edgar filed a petition for letters of administration of the intestate estate of
Flaviano, which court granted. The court then issued a Notice to Creditors for the filing of
money claims against Flaviano's estate. MBC notified the court of its claim. When Court
terminated the proceedings and executed an extra-judicial partition over the properties, the loan
obligations owed to MBC remained unsatisfied though the court recognized the rights of MBC to
foreclose the mortgage. MBC extrajudicially foreclosed the mortgage; however, after auction
sale, a deficiency remained on Maglasangs’ obligation. Thus, it filed a suit to recover the
deficiency. RTC ruled in their favor of respondent so Maglasangs appealed to CA contending
that under Remedies available to Manila Banking Corp. under Sec. 7, Rule 86 of Rules of Court
are alternative and exclusive, such that the election of one operates as a waiver of the others and
since MBC filed a claim in the probate court, it has abandoned its right to foreclose the property
and is barred from recovering any deficiency. CA denied the appeal and contended that Act.
3135 applies which allows MBC to extrajudicially foreclose and recover the deficiency.

ISSUE: Does MBC have the right to recover the deficiency

HELD: No. Jurisprudence laid down the rule under Section 7, Rule 86 and explains that the
secured creditor has three remedies/options that he may alternatively adopt for the satisfaction of
his indebtedness. In particular, he may choose to: (a) waive the mortgage and claim the entire
debt from the estate of the mortgagor as an ordinary claim; (b) foreclose the mortgage judicially
and prove the deficiency as an ordinary claim; and (c) rely on the mortgage exclusively, or other
security and foreclose the same before it is barred by prescription, without the right to file a
claim for any deficiency. It must, however, be emphasized that these remedies are distinct,
independent and mutually exclusive from each other; thus, the election of one effectively bars
the exercise of the others.
MBC had a right to extrajudicially foreclose the property but it cannot recover the deficiency.
Both Sec. 7, Rule 86 of Rules of Court and Act. 3135 apply complementarily in the case at bar.
Foreclosure under the 3rd remedy in Sec. 7, Rule 86 of Rules of Court includes extrajudicial
foreclosure under Act. 3135. However, upon choosing said remedy, creditor waives his right to
recover the deficiency. When MBC sought to extrajudicially foreclose the mortgage of the
properties previously belonging to Sps. Maglasang and it therefore, availed of the third option
waiving its right to recover the deficiency.
Thus, the complaint for the recovery of the deficiency amount after extra-judicial foreclosure
filed by respondent Manila Banking Corporation was hereby DISMISSED.
 (REPORT for RULE 91)
RULE 91 (SECTIONS 1 & 2): ESCHEATS
Escheat - is a proceeding whereby the real and personal property of a deceased person in the
Philippines, who died without leaving any will or legal heirs, become the property of the state
upon his death.
Nature of Escheat Proceedings - rests on the principle of ultimate ownership by the state of all
property within its jurisdiction.

Section 1. When and by whom petition filed.

- An escheat proceeding is initiated by the government through the Solicitor General.
Requisites for filing petition for escheat
1. person died intestate
2. he left properties
3. he left no heirs or persons entitled to the same.
Petition may be filed in the Court of First Instance of the province where the deceased last
resided or in which he had estate, if he resided out of the Philippines, setting forth the facts, and
praying that the estate of the deceased be declared escheated.

Section 2. Order for hearing.

- If the petition is sufficient in form and substance, the court, by an order reciting the purpose of
the petition, shall fix a date and place for the hearing thereof,

1. Date of hearing not more than 6 months after entry of order.

2. Publication of order at least once a week for 6 consecutive weeks in newspaper of general
circulation in the province, as the court shall deem best.
 (CASE for RULE 91)
FULL TEXT:
VICENTA TAN, petitioner,
vs.
CITY OF DAVAO, respondent.
Occeña Law Office for petitioner.
The City Legal Officer for respondent.
G.R. No. L-44347 September 29, 1988
GRIÑO-AQUINO, J.:

This 26-year old case involves what is probably now a valuable lot in the City of Davao whose
owner left for China with her entire family in 1923 and never returned. Like all such estates
facing escheat proceedings, it is fair game for poseurs and fakers claiming to be the missing heir
of the deceased owner.
The spouses Cornelia Pizarro and Baltazar Garcia, during their lifetime, were residents of Davao
City. As they were childless, they adopted a three-year old girl whom they named Dominga
Garcia and brought up as their own. At the age of nineteen years, Dominga Garcia married a
Chinaman, Tan Seng alias Seng Yap, with whom she had three children, named Vicente, who
was born in 1916, Mariano who was born in 1918, and Luis who was born in 1921. In 1923,
Dominga Garcia and her three children emigrated to Canton, China. In less than a year, Tan Seng
followed his family to his country of origin.
According to the petitioner, Dominga Garcia died intestate in 1955 (Extra-judicial Settlement of
the Estate of Dominga Garcia dated May 27, 1966, p. 8, Rollo). She left in the Philippines a
1,966-square-meter lot on Claveria Street, Townsite of Davao, District of Davao, registered in
her name under T.C.T. No. 296 (T-2774) of the Registry of Deeds of Davao City. Since her
departure for China with her family, neither she, nor her husband, nor any of their children has
returned to the Philippines to claim the lot.
Dominga's adoptive parent, Cornelia Pizarro, died in May 1936. In 1948, her nephew, Ramon
Pizarro, occupied a part of Dominga's property and collected the rentals from the owners of other
houses occupying the land. Another nephew of Cornelia, Segundo Reyes, in a burst of civic
spirit, informed the Solicitor General about the property. The City Fiscal and NBI agents,
Antonio Gonzaga and Felix Valencia, investigated Segundo Reyes, Ramon Pizarro and Aurelio
Pizarro regarding the whereabouts of Dominga Garcia, Tan Seng, and their children.
During the investigation, Ramon Pizarro alleged that Vicenta Tan, daughter of Dominga, was
married and living in Bacolod City, but he did not know her exact address. Aurelio Pizarro, on
the other hand, controverted that statement because as far as he knew, Vicenta Tan left for China
with her mother and brothers in 1923.
On September 12,1962, the City of Davao filed a petition in the Court of First Instance of Davao,
Branch I (Special Civil Case No. 1220) to declare Dominga Garcia's land escheated in its favor.
It alleged that Dominga Garcia and her children are presumed to be dead and since Dominga
Garcia left no heir person by law entitled to inherit her estate, the same should be escheated
pursuant to Rule 92 of the Rules of Court (pp. 1-5, Record on Appeal).
The court set the petition for hearing and directed the City to cause (as it did ) the publication of
its petition in the 'Mindanao Times," a newspaper of general circulation in the city and province
of Davao, and in the Official Gazette, once a week for six (6) consecutive weeks (pp. 6-8,
Record on Appeal).
Ramon Pizarro opposed the escheat petition on the ground that courts are not authorized to
declare that a person is presumed to be dead and that Dominga Garcia's being in Red China is not
a sufficient ground to deprive her of her property by escheat proceedings (pp. 8-9, Record on
Appeal).
On June 15, 1966, Pizarro filed a motion to dismiss the escheat petition (pp. 13-15, Record on
Appeal), but he withdrew his motion three days later (p. 15, Record on Appeal).
Numerous incidents delayed the trial of the case, among them: (1) the court's order denying the
oppositor's motion to dismiss the escheat petition, which reached the Court of Appeals and the
Supreme Court (L-38423); (2) the court's order requiring Pizarro to render an accounting which
also reached the Court of Appeals and Supreme Court (L-38642); and (3) the court's order for
receivership which reached the Court of Appeals and the Supreme Court (L-39224).
At the trial, the petitioner's evidence on the Identity of the land; the fact that the registered
owner, Dominga Garcia, and her children and husband had left for China in 1923; that she died
intestate in 1955; and that none of her heirs is found in the Philippines, were not seriously
disputed.
The controversy centers on whether Dominga's daughter, Vicenta Tan, is alive in China or in
Hongkong, as alleged by Pizarro who tried to prove it through: (1) supposed pictures of the
missing heir (Exhs. 1, 2, and 3); (2) an Extrajudicial Settlement and Adjudication of Dominga's
Estate (Exh. 19, pp. 8-9, Rollo) allegedly executed by Vicenta in Hongkong on May 27, 1966;
and (3) a Special Power of Attorney (Exh. 20) that she supposedly signed (thumbmarked) in
favor of Pizarro on the same date also in Hongkong (pp. 53-56, Rollo).
Pizarro testified that his aunt Cornelia Pizarro gave him the papers pertaining to the land and told
him to take care of it before she died in 1936.
On cross-examination, he alleged that in 1960 he met Vicenta on Claveria Street, that she told
him to take care of her property because she would come again later; that they met again in
Hongkong in 1966; and he recognized her from her pictures
(Exhs. 1, 2, and 3).
On still another occasion, Pizarro testified that the title of the land was given to him by Dominga
Garcia when she and her husband returned to Davao before the war and borrowed money from
him for their trip to China.
Pizarro's witness, a septuagenarian Arsenio Suazo, who claimed to be a distant relative of
Cornelia Pizarro and Dominga Garcia, testified that the last time he saw Vicenta was when she
was 5 years old. He Identified her as the woman with buck teeth in the pictures (Exhs. 1, 2 and 3)
because he remembered that, even as a 5-year-old, "her teeth were not in good form and were
somewhat protruding."
Another witness, Ramon Regino, a nephew of Pizarro, calculated that Vicenta was 7 years old
when he last saw her. He testified that the pictures (Exhs. 1, 2, and 3) bore a similarity to Vicenta
whose face, he recalled, was "somewhat long."
The trial court found Suazos testimony "not credible" or "improbable" for it was impossible for
him to Identify the woman in the picture as Vicenta on the basis only of his recollection that she
had protruding teeth as a child, because, the court argued, "it is a matter of common
knowledge ... that the teeth of children of five years of age are temporary, and are replaced by
permanent teeth at the age of seven or eight years."
(p. 185, Record on Appeal.)
The court also found Regino's testimony "Incredible, patently incredible" (p. 185, Record on
Appeal).
Neither did the trial court believe Pizarro's allegation that the pictures, Exhibits 1, 2, and 3, were
those of Vicenta Tan. The court observed that the woman in the picture, who supposedly made
the Extrajudicial Settlement and Special Power of Attorney (Exhs. 19 and 20) did not know how
to sign her name, thus contradicting Pizarro's statement that Vicente, at age 7, already knew how
to write and that when they met in Hongkong, they conversed in Chavacano and in English. On
the other hand, the court pointed out, since Vicenta left for China in 1923 when she was only 7
years old, and as she grew up in China, it could not be true that she spoke Chavacano and could
write in the Roman alphabet
(p. 194, Record on Appeal).
The Court did not believe that Pizarro and Vicenta met in Davao in 1960, for if that were true, he
did not need to be shown the scar on Vicenta's thigh in order for him to recognize her.
Furthermore, it is improbable that a woman whom he had not seen for 43 years would bare her
thigh to him. The trial court pointed out in its decision that:
... There is no proof that Vicenta Tan, daughter of Dominga Garcia, was the one who in fact sent
the picture other than the claim of Pizarro that he received the same from her. Likewise, there is
no proof that the woman in Exhibit I is Vicenta Tan, daughter of Dominga Garcia, except the
testimony of Pizarro that he received the picture from her. An impostor might have sent her
picture to Pizarro foist herself upon him as the daughter of Dominga Garcia. And this is the
woman whom Pizarro met in Hongkong (p. 196, Record on Appeal.)
The trial court found that Pizarro's testimonies "ring with untruthfulness; they are replete with
inconsistencies" (p. 17, Record on Appeal) and the witnesses who corroborated him were
"unworthy of belief" (p. 198, Record on Appeal).
On March 23, 1972, the trial court rendered judgment whose dispositive portion is quoted below:
WHEREFORE, the land in the name of Dominga Garcia covered by Transfer Certificate of Title
No. 296 (T-2774) of the Register of Deeds of Davao City, as well as the rentals thereon, shall
escheat and the same are hereby assigned to the City of Davao for the benefit of public schools
and public charitable institutions and centers in the said city.
Ramon Pizarro shall make an accounting of the income he collected from himself and those who
are occupying the land from the time he took possession of it in 1936 when his aunt Cornelia
Pizarro died until the City of Davao takes possession of the property and shall deliver the same
to the city.
Ramon Pizarro shall likewise deliver to the City of Davao the owner's duplicate of Transfer
Certificate of Title No. 296 (T-2774) which is in his possession, without costs. (p. 198, Record
on Appeal.)
Pizarro appealed to the Court of Appeals (CA-G.R. No. L-51786-R). He passed away on June
16, 1975 during the pendency of the appeal.
On August 19,1975, a certain Luis Tan, alias Chen Yek An claiming to be the long missing son
of Dominga Garcia, filed a motion for intervention in the Court of Appeals. He alleged that he
had been living in mainland China; that he failed to come to the trial because of a government
prohibition barring his entry to the Philippines; that after diplomatic relations with China were
restored, he returned to this country to oppose the escheat proceedings on the properties of his
mother, Dominga Garcia.
The City of Davao opposed the motion for intervention for tardiness. The Court of Appeals
disallowed it because the trial had long been terminated, and the intervention, if allowed, would
unduly delay the adjudication of the rights of the original parties
(p. 26, Rollo).
On April 2, 1976, the Court of Appeals affirmed the appealed decision of the trial court. Vicenta
Tan and/or her attorney-in-fact, Ramon Pizarro, appealed by petition for certiorari to this Court,
alleging that the Court of Appeals erred:
1. in ruling that the city of Davao had personality to file the escheat petition; and
2. in declaring that petitioner Vicenta Tan may be presumed dead.
We find no merit in the petition for review.
With respect to the argument that only the Republic of the Philippines, represented by the
Solicitor-General, may file the escheat petition under Section 1, Rule 91 of the Revised (1964)
Rules of Court, the Appellate Court correctly ruled that the case did not come under Rule 91
because the petition was filed on September 12,1962, when the applicable rule was still Rule 92
of the 1940 Rules of Court which provided:
Sec. 1. When and by whom,petition filed.—When a person dies intestate, seized of real or
personal property in the Philippines, leaving no heirs or person by law entitled to the same, the
municipality or city where the deceased last resided, if he resided in the Philippines, or the
municipality or city in which he had estate if he resided out of the Philippines, may file a petition
in the court of first instance of the province setting forth the facts, and praying that the estate of
the deceased be declared escheated. (Emphasis supplied.)
Rule 91 of the Revised rules of Court, which provides that only the Republic of the Philippines,
through the Solicitor General, may commence escheat proceedings, did not take effect until
January 1, 1964. Although the escheat proceedings were still pending then, the Revised Rules of
Court could not be applied to the petition because to do so would work injustice to the City of
Davao. Rule 144 of the 1964 Rules of Court contains this "saving" clause:
These rules shall take effect on January 1, 1964. They shall govern all cases brought after they
take effect, and also all further proceedings in cases pending, except to the extent that in the
opinion of the court, their application would not be feasible or would work injustice, in which
event the former procedure shall apply.
The Court of Appeals should have dismissed the appeal of Vicenta Tan and Ramon Pizarro
earlier because the records show that Vicenta was never a party in the escheat proceedings. The
trial court's order dated February 4, 1972 ordering that she be substituted for Ramon Pizarro as
oppositor (p. 16, Record on Appeal) was set aside by the same court in its Order of March 23,
1972 (p. 178, Record on Appeal) which was not appealed.
Vicenta Tan, if she still exists, was never served with summons extra-territorially under Section
17, Rule 14 of the Rules of Court. She never appeared in the trial court by herself, or counsel and
never filed a pleading therein, hence, she never submitted to the court's jurisdiction.
Every action must be prosecuted and defended in the name of the real party-in-interest (Sec. 2,
Rule 3, Rules of Court; Ferrer vs. Villamor, 60 SCRA 106; Filipinas Industrial Corp. vs. San
Diego, 23 SCRA 706; 1 Moran 144). Ramon Pizarro, the alleged administrator of Dominga
Garcia's property, was not a real party in interest. He had no personality to oppose the escheat
petition.
The Court of Appeals did not err in affirming the trial court's ruling that Dominga Garcia and her
heirs may be presumed dead in the escheat proceedings as they are, in effect, proceedings to
settle her estate. Indeed, while a petition instituted for the sole purpose of securing a judicial
declaration that a person is presumptively dead cannot be entertained if that were the only
question or matter involved in the case, the courts are not barred from declaring an absentee
presumptively dead as an incident of, or in connection with, an action or proceeding for the
settlement of the intestate estate of such absentee. Thus ruled this Court in In re Szatraw 81 Phil
461:
... This presumption ... may arise and be invoked and trade in a case, either in an action or in a
special proceeding, which is tried or heard by, and submitted for-decision to, competent court.
Independently of such an action or special proceeding, the presumption of death cannot be
invoked, nor can it be made the subject of an action or special proceeding. (Emphasis added.)
Direct evidence proving that Dominga Garcia, her husband and her children are in fact dead, is
not necessary. It may be presumed under Article 390 of the New Civil Code which provides:
ART. 390. After an absence of seven years, it being unknown whether or not the absentee still
lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an
absence of ten years ...
The Court of Appeals found that the City of Davao was able to prove the facts from which the
presumption arises. It said:
... Its evidence preponderantly shows that in 1923 Dominga Garcia and her family left the
Philippines bound for China. Since then until the instant petition was filed on September 12,
1962, a period covering about 39 years, nothing had been heard about them. It is not known
whether all or any of them is still alive at present. No heir, devisee or any other person entitled to
the estate of Dominga Garcia has appeared and claimed the same up to this time except Luis Tan
whose status as alleged heir has still to be proven in the proper court.
The assertion of appellant Pizarro that in 1960 he met and talked with Vicenta Tan in Claveria,
Davao City, before she went to China, and again in 1966, when he went to Hongkong, was not
believed by the court below. After assessing and evaluating the evidence, we find no sufficient
cause to disturb the conclusion of the trial court made on a finding of fact based on conflicting
testimony and depending largely upon the credibility of witnesses who testified before it. In our
review of the evidence, we have not come across any material fact or circumstance which the
court a quo has overlooked and failed to consider, or has misunderstood and misapplied, and
which if properly appreciated and accurately were held would change the result of this litigation.
For one thing, if it is true that Vicenta Tan left the Philippines only in 1960, as oppositor Pizarro
would like the court to believe, it has not been explained why he omitted to secure copies of her
departure papers from either the Department of Foreign Affairs, the Bureau of Immigration or
the former Chinese Embassy, and present them to the court to establish her existence as late as
1960.
For another, if it is also true that he met her in Hongkong in 1966, we are at a loss why he failed
to arrange for her return to the Philippines. We do not believe it would have been difficult to do
so, considering that she had been a resident of this country for more than 40 years and had been
absent for only about six years and that her return was imperative on account of a court action
against her property which required her personal presence. But even if this were impossible,
oppositor Pizarro would not be left without any other remedy. He could have arranged for the
taking of her deposition in Hongkong by means of letters rogatory under Sections 11 and 12,
Rule 24 of the Revised Rules of Court, in the same manner that, according to him, he arranged
their meeting in the Crown Colony sometime in 1966.
The unexplained failure of oppositor Pizarro to take advantage of any of these remedies available
to him heavily tilts the scale against the credibility of his claim.
(pp. 30-31, Rollo.)
These factual findings of the Court of Appeals are binding on Us. They may not be disturbed in
this petition for review where only legal questions may be raised
(Sec. 2, Rule 45).
WHEREFORE, finding no reversible error in the decision of the Court of Appeals in CA-G.R.
No. 51786-R, the petition for review is denied for lack of merit.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

CASE DIGEST:
VICENTA TAN, petitioner,
vs.
CITY OF DAVAO, respondent.
G.R. No. L-44347 September 29, 1988
GRIÑO-AQUINO, J.:

FACTS: The spouses Cornelia Pizarro and Baltazar Garcia, during their lifetime, were residents
of Davao City. As they were childless, they adopted a three-year old girl whom they named
Dominga Garcia and brought up as their own. At the age of nineteen years, Dominga Garcia
married a Chinaman, Tan Seng alias Seng Yap, with whom she had three children, named
Vicenta, who was born in 1916, Mariano who was born in 1918, and Luis who was born in 1921.
In 1923, Dominga Garcia and her three children emigrated to Canton, China. Accordingly,
Dominga died intestate and left a lot in Davao City but neither her husband nor her children
returned to the Philippines to claim the lot.

After Dominga’s adoptive parent, Cornelia Pizarro died, the latter’s nephew, Ramon Pizarro
occupied a part of Dominga’s property and collected the rentals from the owners of other houses
occupying the land. Another nephew, in a burst of civic spirit, informed the Solicitor General
about the property, which led to the investigation of the City Fiscal and NBI.

The City of Davao filed then a petition in the Court of First Instance of Davao to declare
Dominga Garcia's land escheated in its favor. It alleged that Dominga Garcia and her children are
presumed to be dead and since Dominga Garcia left no heir person by law entitled to inherit her
estate, the same should be escheated pursuant to Rule 92 of the Rules of Court.

The court set the petition for hearing and directed the City to cause the publication of its petition
in the 'Mindanao Times," a newspaper of general circulation in the city and province of Davao,
and in the Official Gazette, once a week for six (6) consecutive weeks.

Pizarro filed a motion to dismiss but to no avail. Trial Court rendered a decision that Dominga’s
property and its rentals shall escheat and the same are assigned to the City of Davao for the
benefit of public schools and public charitable institutions and centers in the said city. On appeal,
CA affirmed the appealed decision of the trial court. Hence, Vicenta Tan and/or her attorney-in-
fact, Ramon Pizarro, appealed by petition for certiorari to the SC, alleging that the Court of
Appeals erred in ruling that the city of Davao had personality to file the escheat petition.

ISSUE: Whether or not the City of Davao had personality to file the escheat petition.

HELD: Yes. The City of Davao had a personality to file the escheat petition. With respect to the
argument that only the Republic of the Philippines, represented by the Solicitor-General, may
file the escheat petition under Section 1, Rule 91 of the Revised (1964) Rules of Court, the
Appellate Court correctly ruled that the case did not come under Rule 91 because the petition
was filed on September 12,1962, when the applicable rule was still Rule 92 of the 1940 Rules of
Court which provided:

Sec. 1. When and by whom,petition filed.—When a person dies intestate, seized of real or
personal property in the Philippines, leaving no heirs or person by law entitled to the same, the
municipality or city where the deceased last resided, if he resided in the Philippines, or the
municipality or city in which he had estate if he resided out of the Philippines, may file a petition
in the court of first instance of the province setting forth the facts, and praying that the estate of
the deceased be declared escheated.
Rule 91 of the Revised rules of Court, which provides that only the Republic of the Philippines,
through the Solicitor General, may commence escheat proceedings, did not take effect until
January 1, 1964. Although the escheat proceedings were still pending then, the Revised Rules of
Court could not be applied to the petition because to do so would work injustice to the City of
Davao. Rule 144 of the 1964 Rules of Court contains this "saving" clause:

These rules shall take effect on January 1, 1964. They shall govern all cases brought after they
take effect, and also all further proceedings in cases pending, except to the extent that in the
opinion of the court, their application would not be feasible or would work injustice, in which
event the former procedure shall apply.
(REPORT for RULE 98)

RULE 98 (SECTIONS 1-4): TRUSTEES

Sec. 1. Where trustee appointed.
1. A trustee necessary to carry into effect the provisions of a
a. Will
b. Written instrument

2. shall be appointed by the CFI/RTC in which the will is allowed, or

3. CFI/RTC of the province in which the property or some portion thereof affected by the
trust is situated

Who May File Petition for Appointment of Trustee

The executor or administrator or the person appointed as trustee under the will or written
instrument shall file the petition for the appointment of a trustee in compliance with the wishes
of the testator.

Sec. 2. Appointment and powers of trustee under will, Executor of former trustee need not
administer trust.
Although the will does not name a trustee, the probate court exercises sound judgment in
appointing a trustee to carry into effect the provisions of the will where a trust is actually created
by the will by the provision that certain of the property shall be kept together undisposed during
a fixed period and for a stated purpose.

Sec. 3. Appointment and powers of new trustee under written instrument.

The 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.

The courts will consider all the circumstances bearing on the matter, including the wishes of the
beneficiaries, of the acting trustees, and the intention of the creator of the trust as revealed in the
trust instrument in order to select a proper person for the position.

Sec. 4. Proceedings where trustee appointed abroad.

The powers of a trustee appointed by a Philippine court cannot extend beyond the confines of the
territory of the Republic of the Philippines.

(CASE for RULE 98)

FULL TEXT:

Testate estate of Petrona Francisco, deceased. CASIMIRO TIANGCO and MARIA TIANGCO,
fiduciaries-appellants,
vs.
PROCESO FRANCISCO, petitioner-appellee.
Ortega and Ortega for appellant.
Clemente E. Felix for appellee.
G.R. No. 46390 September 30, 1939
LAUREL, J.:

Petrona Francisco provided in her last will that the income derived from the one-half portion of
her fishpond in the barrio of Gasak, Navotas, Rizal, shall be devoted to the celebration of the
"Flores de Mayo" in Malabon, Rizal, and for other religious activities mentioned in the will.
Upon probate of the will the Court of First Instance of Rizal appointed Casimiro Tiangco as
trustee. Shortly afterwards, on March 16, 1922, Maria Tiangco was also appointed co-trustee to
act with Casimiro Tiangco in supervising the affairs of the trust. The records of the case disclose
that from the beginning the submission of annual reports to the court was very irregular. When
the accounts for the year 1935 were submitted, Proceso Francisco, the herein oppositor-appellee,
filed an opposition. Meanwhile, the court appointed the clerk of court as commissioner to make a
detailed examination of the accounts already submitted, and declared its order of January 30,
1937, approving the said accounts over the objection of Proceso Francisco, of no legal force and
effect. The trustees entered an opposition to this decree. Upon the other hand, the oppositor-
appellee, on March 22, 1937, requested for the temporary substitution of the trustees. The report
for the year 1936 having been filed on April 13, 1937, an order for the joint hearing of the two
annual accounts was issued. Again, Proceso Francisco made several objections to the accounts
for the year 1936 with reference to certain items. In the meantime, the clerk of court submitted
his report. On April 26, 1938, the court issued the following order requiring the resignation of
the trustees within ten days, and appointed Father L.R. Arcaira as temporary trustee:

It appearing from the evidence submitted by the commissioner, regarding the account of the
trustees, that the said trustees have not faithfully discharged their duties and that their
continuance in office would cause further prejudice to the estate under trusteeship, they are
hereby given ten days within which to submit their resignation. It is understood that action on the
resignation will be taken by the court upon the filing and settlement of their account to be
submitted by the trustees pursuant to the order of this court dated April 20, 1938. In the
meantime, the parish priest of Malabon, Father L.A. Arcaira is hereby appointed temporarily
trustee to take immediate possession of the property under trust and manage the same until
regular trustee is duly appointed. So ordered.

Pasig, Rizal, Philippines, April 26, 1938.

SIXTO DE LA COSTA
Judge

Appellants assign various errors, the principal bearing on the power of the lower court to require
the resignation of the trustees and the legal sufficiency of the above-questioned order for this
purpose.
The will of the deceased, Petrona Francisco, created a continuing trust, but no particular persons
were named as beneficiaries. The appellants themselves did not have anything to do with the
trust until their appointment by the lower court, and they were so commissioned not because of
any beneficial interest they had in the estate but t because their selection was approved by the
lower court in the belief that they would faithfully perform their obligations. The same court
found later that they "have not faithfully discharged their duties and that their continuance in
office would cause further prejudice to the estate under trusteeship," and we cannot, on appeal,
override the action of the lower court by reversing its finding, and indirectly sanction the
violation of an unquestioned and legally existing trust.
It is also contended that the order appealed from does not contain a finding of facts, as required
by section 133 of the Code of Civil Procedure, and for this reason, the order is ineffectual. We
find that the order read in conjunction with the report of the clerk of court as commissioner,
exhibits a finding upon all the evidence presented during the trial, and is sufficient compliance
with the requirements of the law. (Aringo vs. Arena, 14 Phil., 263, 266.)
The appellants likewise contend that the trial court committed grave abuse of discretion in
ordering the resignation of the trustees-appellants. The power to appoint a trustee is discretionary
with the court before whom application is made, and this court will decline to interfere except in
case of clear abuse. Thereafter, upon proper showing that the interests of justice would be
adequately served with the removal of the incumbent trustees, it is likewise within its discretion
to do so (section 587, Code of Civil Procedure), and this court will refuse to interfere in the
absence of a showing of grave abuse or whimsical and capricious exercise of that discretion.
The order appealed from is confirmed, with costs against the appellants. So ordered.
Avanceña, C.J., Villa-Real, Imperial, Diaz, Concepcion, and Moran, JJ., concur.

CASE DIGEST:

Testate estate of Petrona Francisco, deceased. CASIMIRO TIANGCO and MARIA TIANGCO,
fiduciaries-appellants,
vs.
PROCESO FRANCISCO, petitioner-appellee.
G.R. No. 46390 September 30, 1939
LAUREL, J.:

FACTS: Petrona Francisco provided in her will that the income derived from the one half portion
of her fishpond shall be devoted for the celebration of the “Flores de Mayo” and for other
religious activities.
Casimiro Tiangco was appointed as trustee, upon the probate of the will. Shortly afterwards, on
March 16, 1922, Maria Tiangco was also appointed co-trustee to act with Casimiro Tiangco in
supervising the affairs of the trust.
Proceso Francisco filed an opposition due to the fact that the submission of the 1935 annual
report to the court was irregular
On Jan 30 1937, after the examination of the accounts it was declared of no legal force and
effect. On Mar 22, 1937: Francisco requested for the temporary substitution of the trustees.
Trustees opposed.
Francisco opposed again to the 1936 report submitted. On April 26 1938, the court ordered the
resignation of the trustees, Father Arcaira was appointed as a temporary trustee.

ISSUE: Whether or not the lower court has the power to require the resignation of the trustees.

HELD: Yes. The Tiangcos, trustees herein, did not have a right to the trusteeship as they were
not designated in the will to be the trustees. The power of the court to appoint the trustee is
discretionary. Upon proper showing in the interests of justice would be served with the removal
of the incumbent trustees, it is within the power of the court to do so.
 (REPORT for RULE 103)
RULE 103 (SECS. 1-3): CHANGE OF NAME
CHANGE OF NAME

Purpose of Rule: Under Art. 376, Civil Code – no person can change his name or surname
without judicial authority.

Nature of proceeding: To establish the status of a person involving his relation with others, that
is, his legal position in, or, with regard to the rest of the community.

Section 1. Venue -
Who may file petition?
“Person” – all natural persons regardless of status
1. Adopted child (Rep. v. Wong, 209 SCRA 189)
2. Alien - - domiciled in the Philippines, not one temporarily staying

Where to file the petition?

A petition for change of name should be filed in the regional trial court of the place where the
petitioner resides.

Section 2. Contents of petition-

A petition for change of name shall be signed and verified by the person desiring his name
changed, or some other person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the province where the petition is filed for
at least three (3) years prior to the date of such filing;
(b) The cause for which the change of the petitioner's name is sought;
(c) The name asked for.

Section 3. Order of hearing-

1. The petition must be published before the hearing at least once a week for three successive
weeks in a newspaper of general circulation published in the province, as the court shall deem
best.

2. Both title or caption and body shall recite

a. name or names or alias of applicant
b. cause for which change of name is sought
c. new name asked for

(CASE for RULE 103)

FULL TEXT:

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
HON. PIO R. MARCOS, Judge of the Court of First Instance of Baguio and Benguet and PANG
CHA QUEN representing the minor, MAY SIA alias MANMAN HUANG, respondents.
Sinforoso Fangonil for private respondent.
G.R. No. L-31065 February 15, 1990
GRIÑO-AQUINO, J.:

This is a petition for review of the order dated February 12, 1969 of respondent Judge Pio R.
Marcos of the then Court of First Instance, now Regional Trial Court of Baguio and Benguet,
granting the petition for change of name under Rule 103 of the Rules of Court and authorizing
"the name of the minor child May Sia alias Manman Huang, also known as Mary Pang [to] be
changed to Mary Pang De la Cruz" (p. 12, Rollo).
On March 30, 1968, a verified petition was filed by private respondent Pang Cha Quen alleging
that she is a citizen of Nationalist China, married to Alfredo De la Cruz, a Filipino citizen; that
she had resided in Baguio City since her birth on January 29, 1930; that by a previous marriage
to Sia Bian alias Huang Tzeh Lik, a citizen of Nationalist China, she gave birth to a daughter,
May Sia alias Manman Huang on January 28, 1958 in the City of Manila; that on January 12,
1959, she caused her daughter to be registered as an alien under the name of Mary Pang, i.e.,
using the maternal surname, because the child's father had abandoned them; that her daughter has
always used the name Mary Pang at home and in the Baguio Chinese Patriotic School where she
studies; that on August 16, 1966, petitioner Pang Cha Quen married Alfredo De la Cruz; that as
her daughter has grown to love and recognize her stepfather, Alfredo De la Cruz, as her own
father, she desires to adopt and use his surname "De la Cruz" in addition to her name "Mary
Pang" so that her full name shall be Mary Pang De la Cruz; that Alfredo De la Cruz gave his
conformity to the petition by signing at the bottom of the pleading; that the petition was not
made for the purpose of concealing a crime as her ten-year old daughter has not committed any,
nor to evade the execution of a judgment as she has never been sued in court, and the petition is
not intended to cause damage or prejudice to any third person. She prayed that her daughter be
allowed to change her name from May Sia, alias Manman Huang, to Mary Pang De la Cruz.
On April 4, 1968, respondent Judge issued an order setting the hearing of the petition on
September 16, 1968 at 9:00 o'clock in the morning and inviting all interested persons to appear
and show cause, if any, why the petition should not be granted. The order also directed that it be
published at the expense of the petitioner in the Baguio and Midland Courier, a newspaper of
general circulation in Baguio City and Mountain Province, once a week for three (3) consecutive
weeks, the first publication to be made as soon as possible. The order also commanded that the
Solicitor General and the City Attorney of Baguio be furnished copies of the order and petition.
On September 16, 1968, when the petition was called for hearing, nobody opposed it. Upon
motion of petitioner's counsel, respondent Judge authorized the Clerk of Court or his deputy to
receive the evidence of the petitioner, Pang Cha Quen.
Finding the petition meritorious, respondent Judge issued an order on February 12, 1969
authorizing the name of the minor, May Sia alias Manman Huang, also known as Mary Pang, to
be changed to Mary Pang De la Cruz.
The Government, through the Solicitor General, appealed to the Supreme Court on the ground
that the court's order is contrary to law.
In its petition fr review, the Government raised two (2) issues namely: (1) whether or not
respondent Judge had acquired jurisdiction over the case; and (2) whether respondent Judge
erred in granting the petition although private respondent Pang Cha Quen failed to adduce proper
and reasonable cause for changing the name of the minor "May Sia" alias Manman Huang."
On the first issue, the Government pointed out that the captions of the petition and of the
published order of the court did not include the name "Mary Pang" as one of the names that the
minor has allegedly been using, hence, the petition and the published order contain a fatal
jurisdictional defect.
The Government's contention is well-taken. Thus did we rule in the case of Jesus Ng Yao Siong
vs. Republic, 16 SCRA 483, 487-88:
Petitioner himself admits that he is known by all these names. This gives rise to the necessity of
including his aliases in the title of the petition not only in the body thereof.
xxx xxx xxx
We accordingly hold that for a publication of a petition for a change of name to be valid, the title
thereof should include, first, his real name, and second, his aliases, if any
In Republic vs. Zosa, G.R. No. 48762, September 12, 1988, this Court explained the reason for
the rule requiring the inclusion of the name sought to be adopted and the other names or aliases
of the applicant in the title of the petition, or in the caption of the published order. It is that the
ordinary reader only glances fleetingly at the caption of the published order or the title of the
petition in a special proceeding for a change of name. Only if the caption or the title strikes him
because one or all of the names mentioned are familiar to him, does he proceed to read the
contents of the order. The probability is great that he will not notice the other names or aliases of
the applicant if they are mentioned only in the body of the order or petition.
In the case at bar, the caption of both the verified petition dated March 30,1968, and the
published order of the trial court dated April 4, 1968 read, thus:
IN RE: PETITION FOR CHANGE OF NAME OF THE MINOR MAY SIA ALIAS MANMAN
HUANG TO MARY PANG DE LA CRUZ, PANG CHA QUEN, Petitioner. (P. 15, Rollo.)
The omission of her other alias-- "Mary Pang"-- in the captions of the court's order and of the
petition defeats the purpose of the publication. In view of that defect, the trial court did not
acquire jurisdiction over the subject of the proceedings, i.e., the various names and aliases of the
petitioner which she wished to change to "Mary Pang De la Cruz."
In Go Chin Beng vs. Republic, L-29574, August 18, 1972, we held that all aliases of the
applicant must be set forth in the title of the published petition, for the omission of any of such
aliases, would be fatal to the petition even if such other aliases are mentioned in the body of the
petition.
The second ground for the Government's appeal is the failure of the petitioner below, Pang Cha
Quen, to state a proper and reasonable cause for changing the name/names of her daughter.
The following have been considered valid grounds for a change of name:
(1) when the name is ridiculous, dishonorable, or extremely difficult to write or pronounce;
(2) when the change results as a legal consequence, as in legitimation;
(3) when the change will avoid confusion (Haw Liong vs. Republic, L-21194, April 29,1966;
Chill Hap Chin vs. Republic, L-20018, April 30, 1966; Republic vs. Tanada, et al., L-31563,
November 29, 1971; Alfon vs. Republic, I,51201, May 29, 1980);
(4) having continuously used and been known since childhood by a Filipino name, unaware of
his alien parentage (Josefina Ang Chay vs. Republic, L-28507, July 31, 1980); or
(5) a sincere desire to adopt a Filipino name to erase signs of former alienage all in good faith
and not to prejudice anybody (Uy vs. Republic, L-22712, November 29, 1965).
As may be gleaned from the petition filed in the lower court, the reasons offered for changing the
name of petitioner's daughter are: (1) that "her daughter grew up with, and learned to love and
recognize Alfredo de la Cruz as her own father" (p. 23, Rollo); (2) to afford her daughter a
feeling of security (pp. 23-24, Rollo); and (3) that "Alfredo de la Cruz agrees to this petition, and
has signified his conformity at the foot of this pleading" (p. 24, Rollo).
Clearly, these are not valid reasons for a change of name. The general rule is that a change of
name should not be permitted if it will give a false impression of family relationship to another
where none actually exists (Laperal vs. Republic, L-18008, October 30, 1962; Johnson vs.
Republic, L-18284, April 30, 1963; Moore vs. Republic, L-18407, June 26, 1963). In Padilla vs.
Republic, 113 SCRA 789, we specifically held that our laws do not authorize legitimate children
to adopt the surname of a person not their father, for to allow them to adopt the surname of their
mother's husband, who is not their father, can result in confusion of their paternity.
Another reason for disallowing the petition for change of name is that it was not filed by the
proper party. Sections 1 and 2, Rule 103 of the Rules of Court, provide:
SECTION 1. Venue. — A person desiring to change his name shall present the petition to the
Court of First Instance of the province in which he resides, or, in the City of Manila, to the
Juvenile and Domestic Relations Court.
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:
(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
Clearly, the petition for change of name must be filed by the person desiring to change his/her
name, even if it may be signed and verified by some other person in his behalf. In this case,
however, the petition was filed by Pang Cha Quen not by May Sia.
Hence, only May Sia herself, alias Manman Huang, alias Mary Pang, when she shall have
reached the age of majority, may file the petition to change her name. The decision to change her
name, the reason for the change, and the choice of a new name and surname shall be hers alone
to make. It must be her personal decision. No one else may make it for her. The reason is
obvious. When she grows up to adulthood, she may not want to use her stepfather's surname, nor
any of the aliases chosen for her by her mother. In Moore vs. Republic, 8 SCRA 282, 284, we
held:
Another factor to be reckoned with is the fact that the child concerned is still a minor who for the
present cannot fathom what would be his feeling when he comes to a mature age. Any way, if the
time comes, he may decide the matter for himself and take such action as our law may permit.
For the present we deem the action taken by petitioner premature.
As pointed out by the Solicitor General, the State has an interest in the name borne by each
individual for purposes of identification and the same should not be changed for trivial reasons
like the instant case (Ty vs. Republic L-18669, November 29, 1965). A change of name is a mere
privilege and not a matter of right (Ong Peng Oan vs. Republic, L-8035, November 29, 1957; Yu
vs. Republic, L- 22040, November 29, 1965) and because the petition to change the name of the
minor May Sia is not supported by weighty reasons, the trial court erred in granting it.
WHEREFORE, the petition for certiorari is granted, and the order appealed from is hereby
reversed and set aside. No costs.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur

CASE DIGEST:

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
HON. PIO R. MARCOS, Judge of the Court of First Instance of Baguio and Benguet, ET AL.,
respondents.
G.R. No. L-31065 February 15, 1990
GRIÑO-AQUINO, J.:

Facts: Private Respondent, Pang Cha Quen, a Chinese National by a previous marriage to Sia
Bian alias Huang Tzeh Lik, a citizen of Nationalist China, she gave birth to a daughter, May Sia
alias Manman Huang on January 28, 1958 in the City of Manila.
On January 12, 1959, she caused her daughter to be registered as an alien under the name of
Mary Pang because the father had abandoned them. Mary Pang had always used this name at
home and in the Baguio Chinese Patriotic School where she studied.

On August 16, 1966, Pang Cha Quen married Alfredo De la Cruz, a Filipino citizen. Mary Pang
has grown to love and recognize her stepfather, Alfredo, as her own father, and she desires to
adopt and use his surname "De la Cruz" in addition to her name "Mary Pang" so that her full
name shall be Mary Pang De la Cruz.

A verified petition was filed by Pang Cha Quen on March 30, 1968 praying that her daughter be
allowed to change her name from May Sia, alias Manman Huang, to Mary Pang De la Cruz.

The petition was based on the following: (1) desire of Mary Pang to use the last name of her
stepfather, (2) to provide her stability, and (3) conformity of Alfredo Dela Cruz to the petition by
signing at the bottom of the pleading. Pang Cha Quen further asserted that the petition was
neither made for the purpose of concealing a crime as her ten-year old daughter has not
committed any nor to evade the execution of a judgment as she has never been sued in court. The
petition is not intended to cause damage or prejudice to any third person.

Finding the petition meritorious, respondent Judge issued an order on February 12, 1969
authorizing the name of the minor, May Sia alias Manman Huang, also known as Mary Pang, to
be changed to Mary Pang De la Cruz but the Government through the Solicitor General appealed
to the Supreme Court alleging the petition is against the law based on the grounds that: (1) her
other alias “Mary Pang” was not stated in the title of the petition when it was published, and (2)
for failure to state the proper/reasonable cause for changing the name.

Issue: Whether or not respondent Judge had acquired jurisdiction over the case.

Held: The government pointed out that the captions of the petition and of the published order of
the court did not include the name "Mary Pang" as one of the names that the minor has allegedly
been using, hence, the petition and the published order contain a fatal jurisdictional defect.

The omission of her other alias-- "Mary Pang"-- in the captions of the court's order and of the
petition defeats the purpose of the publication. In view of that defect, the trial court did not
acquire jurisdiction over the subject of the proceedings.
In a similar case decided by the Supreme Court, it held that all aliases of the applicant must be
set forth in the title of the published petition, for the omission of any of such aliases, would be
fatal to the petition even if such other aliases were mentioned in the body of the petition.