Assignment No 8-9 SPECPRO

ASSIGNMENT NO. 8

GENERAL GUARDIANS AND GUARDIANSHIP

RA 8369 (FAMILY COURTS ACT OF 1997)

REPUBLIC ACT NO. 8369 AN ACT ESTABLISHING FAMILY COURTS, GRANTING THEM EXCLUSIVE ORIGINAL JURISDICTION OVER CHILD AND FAMILY  CASES, AMENDING BATAS PAMBANSA BILANG 129,AS AMENDED,  OTHERWISE KNOWN AS ACT OF 1980, APPROPRIATING FUNDS   THEREFOR AND FOR OTHER PURPOSES.

  

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: 

Section 1. Title. - This Act shall be known as the "Family Courts Act of 1997". 

  

Sec. 2. Statement of National Policies. - The State  shall protect the rights and promote the welfare of children in keeping with the mandate of the Constitution and the precepts of the United Nations Convention on the rights of the Child. The State shall provide a system of adjudication for youthful offenders which takes into account their peculiar circumstances. 

  

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. The courts shall preserve the solidarity of the family, provide procedures for the reconciliation of spouses and the amicable settlement of family controversy. 

  

Sec. 3. Establishment of Family Courts. - There shall be established a Family Court in every province and city in the country. In case where the city is the capital of the  province, the Family Court shall be established in the municipality which has the highest population. 

  

Sec. 4. Qualification and Training of Family  Court Judges. - Sec. 15 of Batas Pambansa Blg. 129, as amended, is hereby further amended to read as follows:

"Sec. 15. (a) Qualification. - No person shall be appointed Regional Trial Judge or Presiding Judge of the Family Court unless he is a natural-born citizen of the Philippines, at least thirty-five (35) years of age, and, for at least ten (10) years, has been engaged in the practice of law in the Philippines or has held a public office in the Philippines requiring admission to the practice of law as indispensable requisite.

"(b) Training of Family Court Judges. - The Presiding Judge, as well as the court personnel of the Family Courts, shall undergo training and must have the experience and demonstrated ability in dealing with child and family cases. 

  

"The Supreme Court shall provide a continuing education program on child and family laws, procedure and other related disciplines to judges and personnel of such courts." 

  

Sec. 5. Jurisdiction offamily Courts. - The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases: 

  

a) Criminal cases where one or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age but not less than nine (9) years of age or where  one or more of the victims is a minor at the time of the commission of the offense: Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred.

The sentence, however, shall be suspended without need of application pursuant to Ptesidential Decree No. 603, otherwise known as the "Child and Youth Welfare Code"; 

b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter; 

c) Petitions for adoption of children and the revocation thereof; 

d) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains; 

e) Petitions for support and/or acknowledgment; 

f) Summary judicial proceedings brought under the provisions of Executive Order No. 209, otherwise known as the"Family Code of the Philippines"; 

g) Petitions for declaration of status of children as abandoned, dependent o neglected children, petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental authority and other cases cognizable under Presidential Decree No. 603, Executive Order No. 56, (Series of 1986), and other related laws;

h) Petitions for the constitution of the family home;

i) Cases against minors cognizable under the Dangerous Drugs Act, as amended;

j) Violations of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," as amended by Republic Act No. 7658; and 

k) Cases of domestic violence against:

   1) Women - which are acts of gender based violence that results, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman's personhood, integrity and freedom movement; and 

  2) Children - which include the commission of all forms  of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other conditions prejudicial to their development.

If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties.

If any question involving any of the above matters should arise as an incident in any case pending in the regular courts, said incident shall be determined in that court.

Sec. 6. Use of Income. - All Family Courts shall be allowed the use of ten per cent (10%) of their income derived from filing and other court fees under Rule 141 of the Rules of Court for research and other operating expenses including capital outlay: Provided, That this benefit shall likewise be enjoyed by all courts of justice. 

The Supreme Court shall promulgate the necessary guidelines to effectively implement the provisions of this Sec.

Sec. 7. Special Provisional Remedies. - In cases of violence among immediate family members living in the same domicile or household, the Family Court may issue a restraining order against the accused of defendant upon verified application by the complainant or the victim for relief from abuse.

The court may order the temporary custody of children in all civil actions for their custody. The court may also order support pendente lite, including deduction from the salary and use of conjugal home and other properties in all civil actions for support.

Sec. 8. Supervision of Youth Detention Homes. -  The judge of the Family Court shall have direct control and supervision of the youth detention home which the local government unit shall establish to separate the youth offenders from adult criminals: Provided, however, That alternatives to detention and institutional care shall be made available to the accused including counseling, recognizance, bail, community continuum, or diversions from the justice system: Provided, further, That the human rights of the accused are fully respected in a manner appropriate to their well-being.

Sec. 9. Social Services and Counseling Division. -  Under the guidance ofthe Department of Social Welfare and Development (DSWD), a Social Services and Counseling Division (SSCD) shall be established in each judicial region as the Supreme Court shall deem necessary based on the number of juvenile and family cases existing in such jurisdiction. It shall provide appropriate social services to all juvenile and family cases filed with the court and recommend the proper social action. It shall also develop programs, formulate uniform policies and procedures, and provide technical supervision and monitoring of all SSCD in  coordination with the judge. 

Sec. 10. Social Services and Counseling Division Staff. - The SSCD shall have a staff composed of qualified social workers and other personnel with academic preparation in behavioral sciences to carry out the duties'of conducting intake assessment, social case studies, casework and counseling, and othersocial services that may be needed in connection with cases filed with the court: Provided, however, That in adoption cases and in petitions for declaration of abandonment, the case studies may be prepared by social workers of duly licensed child caring or child placement agencies, or the DSWD. When warranted, the division shall recommend that the court avail itself of consultative services of psychiatrists, psychologists, and other qualified specialists presently employed in other departments of the  government in connection with its cases. 

The position of Social Work Adviser shall be created under the Office of the Court Administrator, who shall monitor and supervise the SSCD ofthe Regional Trial Court.

Sec. 11. Alternative Social Services. - In accordance with Sec. 17 of this Act, in areas where no Family Court has been established or no Regional Trial Court was designated by the Supreme Court due to the limited number of cases, the DSWD shall designate and assign qualified, trained, and DSWD accredited social workers of the local government units to handle juvenile and family cases filed in the designated Regional Trial Court of the place.

Sec. 12. Privacy and Confidentiality of Proceedings. - All hearings and conciliation of the child and family cases shall be treated in a manner consistent with the  promotion of the child's and the family's dignity and worth, and shall respect their privacy at all stages of the proceedings. Records of the cases shall be dealt with utmost confidentiality and the identity of parties shall not be divulged   unless necessary and with authority of the judge.

Sec. 13. Special Rules of Procedure. - The Supreme Court shall promulgate special rules of procedure for the transfer of cases to the new courts during the transition period and for the disposition of family cases with the best interests of the child and the protection of the family as primary consideration taking into account the United Nations Convention on the Rights of the Child. 

Sec. 14. Appeals. - Decisions and orders of the court shall be appealed in the same manner and subject to the same conditions as appeals from the ordinary Regional Trial Courts.

Sec. 15. Appropriations. - The amount necessary to carry out the provisions of this Act shall be included in the General Appropriations Act of the year following in its enactment into law and thereafter. 

Sec. 16. Implementing Rules and Regulations. -  The Supreme Court, in coordination with the DSWD, shall formulate the necessary rules and regulations for the effective implementation of the social aspects of this Act. 

  

Sec. 17. Transitory Provisions. - Pending the establishment of such Family Courts, the Supreme Court shall designate from among the branches ofthe Regional Trial Court at least one Family Court in each of the cities of Manila, Quezon, Pasay, Caloocan, Makati, Pasig, Mandaluyong, Muntinlupa, Laoag, Baguio, Santiago, Dagupan, Olongapo, Cabanatuan, San Jose, Angeles, Cavite, Batangas, Lucena, Naga, Iriga, Legazpi, Roxas, Iloilo, Bacolod, Dumaguete, Tacloban, Cebu, Mandaue, Tagbilaran, Surigao, Butuan, Cagayan de Oro, Davao, General Santos, Oroquieta, Ozamis,   Dipolog, Zamboanga, Pagadian, Iligan, and in such other places as the Supreme Court may deem necessary.

Additional cases other than those provided in Sec. 5  may be assigned to the Family Courts when their dockets permit: Provided, That such additional cases shall not be heard on the same day family cases are heard. 

  

In areas where there are no Family Courts, the cases referred to in Sec. 5 of this Act shall be adjudicated by the Regional Trial Court. 

  

Sec. 18. Separability Clause. - In case any provision of this Act is declared unconstitutional, the other provisions shall remain in effect. 

  

Sec. 19. Repealing Clause. - All other laws, decrees, executive orders, rules or regulations inconsistent herewith are hereby repealed, amended or modified accordingly. 

Sec. 20. Effectivity. - This Act shall take effect fifteen (15) days after its publication in at least two (2) national newspapers of general circulation.

Approved October 28, 1997.

[A.M. No. 03-02-05-SC 2003-05-01]

RE: PROPOSED RULE ON GUARDIANSHIP OF MINORS

R E S O L U T I O N

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting for this Court’s consideration and approval the Proposed Rule on Guardianship of Minors, the Court Resolved to APPROVE the same.

The Rule shall take effect on May 1, 2003 following its publication in a newspaper of general circulation not later than April 15, 2003.

April 1, 2003.

<>I>Davide, Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Moralez,Callejo Sr., Azcuna, JJ., concur

RULE ON GUARDIANSHIP OF MINORS

Section 1. Applicability of the Rule. – This Rule shall apply to petitions for guardianship over the person or property, or both, of a minor.

The father and the mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment. In such case, this Rule shall be suppletory to the provisions of the Family Code on guardianship.

Sec. 2. Who may petition for appointment of guardian. – On grounds authorized by law, any relative or other person on behalf of a minor, or the minor himself if fourteen years of age or over, may petition the Family Court for the appointment of a general guardian over the person or property, or both, of such minor. The petition may also be filed by the Secretary of Social Welfare and Development and by the Secretary of Health in the case of an insane minor who needs to be hospitalized.

Sec. 3. Where to file petition. – A petition for guardianship over the person or property, or both, of a minor may be filed in the Family Court of the province or city where the minor actually resides. If he resides in a foreign country, the petition shall be flied with the Family Court of the province or city where his property or any part thereof is situated.

Sec. 4. Grounds of petition.-The grounds for the appointment of a guardian over the person or property, or both, of a minor are the following:

  (a) death, continued absence, or incapacity of his parents;

   (b) suspension, deprivation or termination of parental authority;

   (c) remarriage of his surviving parent, if the latter Is found unsuitable to exercise parental authority; or

   (d) when the best interests of the minor so require.

Sec. 5. Qualifications of guardians. – In appointing a guardian, the court shall consider the guardian’s:

(a) moral character;

(b) physical, mental and psychological condition;

(c) financial status;

(d) relationship of trust with the minor;

(e) availability to exercise the powers and duties of a guardian for the full period of the guardianship;

(f) lack of conflict of interest with the minor; and

(g) ability to manage the property of the minor.

Sec. 6. Who may be appointed guardian of the person or property, or both, of a minor. – In default of parents or a court-appointed guardian, the court may appoint a guardian of the person or property, or both, of a minor, observing as far as practicable, the following order of preference:

(a) the surviving grandparent and In case several grandparents survive, the court shall select any of them taking Into account all relevant considerations;

(b) the oldest brother or sister of the minor over twenty-one years of age, unless unfit or disqualified;

(c) the actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; and

(d) any other person, who in the sound discretion of the court, would serve the best interests of the minor.

Sec. 7. Contents of petition. – A petition for the appointment of a general guardian must allege the following:

(a) The jurisdictional facts;

(b) The name, age and residence of the prospective ward;

(c) The ground rendering the appointment necessary or convenient;

(d) The death of the parents of the minor or the termination, deprivation or suspension of their parental authority;

(e) The remarriage of the minor’s surviving parent;

(f) The names, ages, and residences of relatives within the 4th civil degree of the minor, and of persons having him in their care and custody;

(g) The probable value, character and location of the property of the minor; and

(h) The name, age and residence of the person for whom letters of guardianship are prayed.

The petition shall be verified and accompanied by a certification against forum shopping. However, no defect in the petition or verification shall render void the issuance of letters of guardianship.

Sec. 8. Time and notice of hearing. – When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for its hearing, and shall cause reasonable notice to be given to the persons mentioned in the petition, including the minor if he is fourteen years of age or over, and may direct other general or special notice to be given.

Sec. 9. Case study report. – The court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. The social worker may intervene on behalf of the minor if he finds that the petition for guardianship should be denied.

Sec. 10. Opposition to petition. – Any interested person may contest the petition by filing a written opposition based on such grounds as the majority of the minor or the unsuitability of the person for whom letters are prayed, and pray that the petition be denied, or that letters of guardianship issue to himself, or to any suitable person named in the opposition.

Sec. 11. Hearing and order for letters to issue. – At the hearing of the petition, it must be shown that the requirement of notice has been complied with. The prospective ward shall be presented to the court. The court shall hear the evidence of the parties in support of their respective allegations. If warranted, the court shall appoint a suitable guardian of the person or property, or both, of the minor.

At the discretion of the court, the hearing on guardianship may be closed to the public and the records of the case shall not be released without its approval.

Sec. 12. When and how a guardian of the property for non-resident minor is appointed; notice. – When the minor resides outside the Philippines but has property in the Philippines, any relative or friend of such minor, or any one interested in his property, in expectancy or otherwise, may petition the Family Court for the appointment of a guardian over the property.

Notice of hearing of the petition shall be given to the minor by publication or any other means as the court may deem proper. The court may dispense with the presence of the non-resident minor.

If after hearing the court is satisfied that such non-resident is a minor and a guardian is necessary or convenient, it may appoint a guardian over his property.

Sec. 13. Service of final and executory judgment or order. – The final and executory judgment or order shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the place where his property or part thereof is situated shall annotate the same in the corresponding title, and report to the court his compliance within fifteen days from receipt of the order.

Sec. 14. Bond of guardian; amount; conditions.-Before he enters upon the execution of his trust, or letters of guardianship issue, an appointed guardian may be required to post a bond in such sum as the court shall determine and conditioned as follows:

(a) To make and return to the court, within three months after the issuance of his letters of guardianship, a true and complete Inventory of all the property, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person in his behalf;

(b) To faithfully execute the duties of his trust, to manage and dispose of the property according to this rule for the best interests of the ward, and to provide for his proper care, custody and education;

(c) To render a true and Just account of all the property of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs; and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; and

(d) To perform all orders of the court and such other duties as may be required by law.

Sec. 15. Where to file the bond; action thereon. – The bond posted by a guardian shall be filed in the Family Court and, In case of breach of any of its conditions, the guardian may be prosecuted in the same proceeding for the benefit of the ward or of any other person legally interested in the property.

Whenever necessary, the court may require the guardian to post a new bond and may discharge from further liability the sureties on the old bond after due notice to interested persons, if no injury may result therefrom to those interested in the property.

Sec. 16. Bond of parents as guardians of property of minor. – lf the market value of the property or the annual Income of the child exceeds P50,000.00, the parent concerned shall furnish a bond In such amount as the court may determine, but in no case less than ten per centurn of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be flied in the Family Court of the place where the child resides or, if the child resides in a foreign country, in the Family Court of the place where the property or any part thereof is situated.

The petition shall be docketed as a summary special proceeding In which all incidents and issues regarding the performance of the obligations of a general guardian shall be heard and resolved.

Sec. 17. General duties of guardian. – A guardian shall have the care and custody of the person of his ward and the management of his property, or only the management of his property. The guardian of the property of a nonresident minor shall have the management of all his property within the Philippines.

A guardian shall perform the following duties:

(a) To pay the just debts of the ward out of the personal property and the income of the real property of the ward, If the same is sufficient; otherwise, out of the real property of the ward upon obtaining an order for its sale or encumbrance;

(b) To settle all accounts of his ward, and demand, sue for, receive all debts due him, or may, with the approval of the court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the property and effects; and to appear for and represent the ward in all actions and special proceedings, unless another person is appointed for that purpose;

(c) To manage the property of the ward frugally and without waste, and apply the income and profits thereon, insofar as may be necessary, to the comfortable and suitable maintenance of the ward; and if such income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court to do so;

 (d) To consent to a partition of real or personal property owned by the ward jointly or in common with others upon authority granted by the court after hearing, notice to relatives of the ward, and a careful investigation as to the necessity and propriety of the proposed action;

 (e) To submit to the court a verified inventory of the property of his ward within three months after his appointment, and annually thereafter, the rendition of which may be required upon the application of an interested person;

 (f) To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within three months after such discovery, succession, or acquisition; and

 (g) To render to the court for its approval an accounting of the property one year from his appointment, and every year thereafter or as often as may be required.

Sec. 18. Power and duty of the court – The court may:

 (a) Request the assistance of one or more commissioners in the appraisal of the property of the ward reported in the initial and subsequent inventories;

 (b) Authorize reimbursement to the guardian, other than a parent, of reasonable expenses incurred in the execution of his trust, and allow payment of compensation for his services as the court may deem just, not exceeding ten per centum of the net income of the ward, if any; otherwise, in such amount the court determines to be a reasonable compensation for his services; and

 (c) Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the property at the ward, require any person suspected of having embezzled, concealed, or disposed of any money, goods or interest, or a written instrument belonging to the ward or his property to appear for examination concerning any thereof and issue such orders as would secure the property against such embezzlement, concealment or conveyance.

Sec. 19. Petition to sell or encumber property.-When the income of a property under guardianship is insufficient to maintain and educate the ward, or when it is for his benefit that his personal or real property or any part thereof be sold, mortgaged or otherwise encumbered, and the proceeds invested in safe and productive security, or in the improvement or security of other real property, the guardian may file a verified petition setting forth such facts, and praying that an order issue authorizing the sale or encumbrance of the property.

Sec. 20. Order to show cause. – If the sale or encumbrance is necessary or would be beneficial to the ward, the court shall order his next of kin and all person/s interested in the property to appear at a reasonable time and place therein specified and show cause why the petition should not be granted.

Sec. 21. Hearing on return of order; costs. – At the time and place designated in the order to show cause, the court shall hear the allegations and evidence of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or deny the petition as the best interests of the ward may require.

Sec. 22. Contents of order for sale or encumbrance and its duration; bond. – If, after full examination, it is necessary, or would be beneficial to the ward, to sell or encumber the property, or some portion of it, the court shall order such sale or encumbrance the proceeds of which shall be expended for the maintenance or the education of the ward, or invested as the circumstances may require. The order shall specify the grounds for the sale or encumbrance and may direct that the property ordered sold be disposed of at public sale, subject to such conditions as to the time and manner of payment, and security where a part of the payment is deferred. The original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale or encumbrance, but the court may, if deemed expedient, require an additional bond as a condition for the sale or encumbrance. The authority to sell or encumber shall not extend beyond one year, unless renewed by the court.

Sec. 23. Court may order investment of proceeds and direct management of property.– The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other money of his ward in his hands, in real or personal property, for the best interests of the ward, and may make such other orders for the management, investment, and disposition of the property and effects, as circumstances may warrant.

Sec. 24. Grounds for removal or resignation of guardian. – When a guardian becomes insane or otherwise incapable of discharging his trust or is found thereafter to be unsuitable, or has wasted or mismanaged the property of the ward, or has failed to render an account or make a return for thirty days after it is due, the court may, upon reasonable notice to the guardian, remove him as such and require him to surrender the property of the ward to the person found to be lawfully entitled thereto.

The court may allow the guardian to resign for justifiable causes.

Upon the removal or resignation of the guardian, the court shall appoint a new one.

No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same.

Sec. 25. Ground for termination of guardianship. – The court motu proprio or upon verified motion of any person allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has come of age or has died. The guardian shall notify the court of such fact within ten days of its occurrence.

Sec. 26. Service of final and executory judgment or order. – The final and executory judgment or order shall be served upon the Local Civil Registrar of the municipality or city where the minor resides and the Register of Deeds of the province or city where his property or any part thereof is situated. Both the Local Civil Registrar and’ the Register of Deeds shall enter the final and executory judgment or order in the appropriate books in their offices.

Sec. 27. Effect of the rule. – This Rule amends Rules 92 to 97 inclusive of the Rules of Court on guardianship of minors. Guardianship of incompetents who are not minors shall continue to be under the jurisdiction of the regular courts and governed by the Rules of Court.

Sec. 28. Effectivity. - This Rule shall take effect on May 1, 2003 following its publication in a newspaper of general circulation not later than April 15, 2003.

Rule 92 Guardianship

 Venue

Sec. 1. Where to institute proceedings. - Guardianship of the person or estate of a minor or incompetent may be instituted in the Court of First Instance of the province, or in the justice of the peace court of the municipality, or in the municipal court of the chartered city where the minor or incompetent person resides, and if he resides in a foreign country, in the Court of First Instance of the province wherein his property or part thereof is situated; provided, however, that where the value of the property of such minor or incompetent exceeds the jurisdiction of the justice of the peace or municipal court, the proceedings shall be instituted in the Court of First Instance. In the City of Manila, the proceedings shall be instituted in the Juvenile and Domestic Relations Court.

Sec. 2. Meaning of word "incompetent." - Under this rule, the word "incompetent" includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation.

Sec. 3. Transfer of venue. - The court taking cognizance of a guardianship proceeding, may transfer the same to the court of another province or municipality wherein the ward has acquired real property, if he has transferred thereto his bona-fide residence, and the latter court shall have full jurisdiction to continue the proceedings, without requiring payment of additional court fees. 

Rule 93 Appointment of Guardians

Sec. 1. Who may petition for appointment of guardian for resident. - Any relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen years of age or over, may petition the court having jurisdiction for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent. An officer of the Federal Administration of the United States in the Philippines may also file a petition in favor of a ward thereof, and the Director of Health, in favor of an insane person who should be hospitalized, or in favor of an isolated leper.

Sec. 2. Contents of petition. - A petition for the appointment of a general guardian must show, so far as known to the petitioner:

   (a) The jurisdictional facts;

   (b) The minority or incompetency rendering the appointment necessary or convenient;

   (c) The names, ages, and residences of the relatives of the minor or incompetent, and of the persons  having him in their care;

   (d) The probable value and character of his estate;

   (e) The name of the person for whom letters of guardianship are prayed.

The petition shall be verified; but no defect in the petition or verification shall render void the issuance of letters of guardianship.

Sec. 3. Court to set time for hearing; Notice thereof. - When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for hearing the same, and shall cause reasonable notice thereof to be given to the persons mentioned in the petition residing in the province, including the minor if above 14 years of age or the incompetent himself, and may direct other general or special notice thereof to be given.

Sec. 4. Opposition to petition. - Any interested person may, by filing a written opposition, contest the petition on the ground of majority of the alleged minor, competency of the alleged incompetent, or the unsuitability of the person for whom letters are prayed, and may pray that the petition be dismissed, or that letters of guardianship issue to himself, or to any suitable person named in the opposition.

Sec. 5. Hearing and order for letters to issue. - At the hearing of the petition the alleged incompetent must be present if able to attend, and it must be shown that the required notice has been given. Thereupon the court shall hear the evidence of the parties in support of their respective allegations, and, if the person in question is a minor, or incompetent it shall appoint a suitable guardian of his person or estate, or both, with the powers and duties hereinafter specified. 

Sec. 6. When and how guardian for nonresident appointed; Notice. - When a person liable to be put under guardianship resides without the Philippines but has estate therein, any relative or friend of such person, or any one interested in his estate, in expectancy or otherwise, may petition a court having jurisdiction for the appointment of a guardian for the estate, and if, after notice given to such person and in such manner as the court deems proper, by publication or otherwise, and hearing, the court is satisfied that such nonresident is a minor or incompetent rendering a guardian necessary or convenient, it may appoint a guardian for such estate.

Sec. 7. Parents as guardians. - When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the child's property, with the duties and obligations of guardians under these rules, and shall file the petition required by section 2 thereof. For good reasons the court may, however, appoint another suitable person. 

Sec. 8. Service of judgment. - Final orders or judgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated.

FAMILY CODE

Chapter 3. Effect of Parental Authority Upon the Persons of the Children

Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children or wards the following rights and duties:

(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; 

 (2) To give them love and affection, advice and counsel, companionship and understanding;

 (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; 

 (4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; 

 (5) To represent them in all matters affecting their interests; 

 (6) To demand from them respect and obedience; 

 (7) To impose discipline on them as may be required under the circumstances; and 

 (8) To perform such other duties as are imposed by law upon parents and guardians. (316a)

Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. [2180(2)a and (4)a ]

Art. 222. The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the child so requires. (317)

Art. 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard.

However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. (318a)

Art. 224. The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children's homes duly accredited by the proper government agency.

The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper. (391a)

Chapter 4. Effect of Parental Authority Upon the Property of the Children

Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated.

The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved.

The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. (320a)

Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise.

The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family. (321a, 323a)

Art. 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus given in whole or in part shall not be charged to the child's legitime.

Garchitorena v. Sotelo

Summary: Creditor of the wards applied that he be made their guardians, and while he was so, he mismanaged and misappropriated the properties of the wards. Present guardian now wants to nullify the foreclosure sale which the former guardian/creditor procured allegedly through fraud. Court ruled ifo of wards and new guardian.

*If the interested person is a creditor and mortgagee of the estate minor, he cannot be appointed guardian of the person and property of the latter. No man can serve two masters (Relevant to RULE 93.4)

Facts:

Cabildo St. Property:

-Originally owned by Asuncion Jarata

-Jarata mortgaged it to PERFECTO GABRIEL

…to secure a loan P6k w/12%interest

…2 1/2 JARATA died, left 8 minor children by her husband CELERINO GATCHALIAN

…JARATA executed a will 2 days before her death

·         Will was prepared by PERFECTO GABRIEL

·         The property was devised to her 8 minor children

·         GABRIEL was named the guardian of the children

·         Husband GATCHALIAN named the executor

·         GABRIEL, atty for GATCHALIAN, filed will for probate

·         Will admitted to probate

·         GABRIEL presented a project of partition:

…CELERINO waived usufructuary right over his wife's estate ifo children

PROBATE COURT: estate closed, GATCHALIAN relieved as executor

·         GATCHALIAN thereafter appointed as GUARDIAN of the minor children and their property (upon his application)

>admitted in the application that he already received the minor's property, but did not disclose that it was mortgaged to him

·         GABRIEL acted as guardian for 6 years, when he also acted as their creditor

>finances of the wards deteriorated considerably:

§  last accounting by Gabriel showed deficit of P3,730.10

§  Gabriel executed a 2nd mortgage on the property ifo Sta. Clara Monastery, of which he was the attorney in fact, to secure payment of an additional load of P2500, w/10% per annum. (P2500 was paid to Fernandez Hermanos on account of a larger sum misappropriated by Gatchalian)

-PERFECTO GABRIEL foreclosed the lot, bought it in the public auction

…GATCHALIAN (father of the wards) wanted to raise capital to engage in business, told Gabriel that one NAVARRO was willing to lend him P12k on the property in question

…GABRIEL told GATCHALIAN that to be able to "make a transaction", GABRIEL would sue GATCHALIAN, bid for the property and then resell it to GATCHALIAN - scheme agreed to by GATCHALIAN

>so GABRIEL sued GATCHALIAN for foreclosure of the mortgage as guardian of his minor children

>pursuant to the scheme, GATCHALIAN filed an ANSWER admitting each and every allegation of GABRIEL

>GABRIEL, as attorney for STA.CLARA filed complaint in intervention to foreclose the 2nd mortgage; GATCHALIAN also admitted each and every allegation

TC: GATCHALIAN pay with interest plus sold mortgage property to GABRIEL as the highest bidder of the property

-GABRIEL transferred the property to CARMEN GARCHITORENA

…before the sale was approved by the court, GABRIEL agreed to sell the property to GARCHITORENA

…GARCHITORENA indorsed and delivered a check to GABRIEL of P1k on account of the purchase price

…GATCHALIAN attempted to intervene and file a motion for postponement of GABRIEL's motion to confirm the sale

>BUT was then agreed to proceed with the sale, relying on GABRIEL's renewed promise to resell the property to him

>In accordance with this promise, he looked for a broker and a prospective lender but was warned that it would have been improper for GATCHITORENA to appear as the purchaser, he being the guardian of the minors

>He then went back the next day to the law office of GABRIEL but there found GARCHITORENA already executing a mortgage deed -all these were corroborated by GARCHITORENA's witnesses

…SALE was approved by the court

…GABRIEL executed a deed conveying the property to GARCHITORENA

…GARCHITORENA mortgage lot simultaneously to STA.CLARA to secure payment of a loan w/interest.

-VICENTE SOTELO: Guardian of 8 minor children of ASUNCION JARATA (original owner)

…he bought action to annul the judgment obtained by GABRIEL (foreclosure and for sale):  Judgment obtained through fraud

-GARCHITORENA transferred it to JESUS PELLON

-PELLON was able to acquire Torrens Certificate for the said land

…joined PELLON as a party defendant

TC: ifo SOTELO

…new title of PELLON CANCELLED and REPLACED by new one in the name of the minors

…GABRIEL & GARCHITORENA appealed, PELLON did not

CA (en banc): affirmed w/ modification

·         New title ifo of minor children of JARATA (wards of SOTELO) subject to the alleged mortgage ifo Santa Clara Monastery

·         Amount plaintiff shall have paid on account of mortgage be deducted from amounts due to GABRIEL or ST. CLARA MONASTERY, w/ interests

·         GABRIEL and GARCHITORENA shall render accounting of income derived by them from date minors were ejected until date it was placed in receivership

·         GARCHITORENA may sue GABRIEL in a different suit

WON THE FACTS PROVEN SUFFICIENT TO ESTABLISH A COLLUSION BETWEEN GABRIEL AND GATCHALIAN IN THE FORECLOSURE SUIT INSTITUTED BY GABRIEL AGAINST GATCHALIAN? NO

1.        Gabriel was the predecessor of GATCHALIAN as the guardian of the property of his wards. He was the one who executed the STA. CLARA mortgage on behalf of the minors

-he had the duty to preserve the estate of his wards

-he was formerly the employer and legal counselor of Gatchalian (therefore, had a
Predominating influence over Gatchalian)

-elements of confindence and active good faith essential in the relation of a guardian and ward.

-he argues that the minors and Gatchalian would have no defense anyway if he sued him: court said that if he wanted to collect his mortgage, he should have informed the court of the situation so that the court could authorize the sale of the property to best advantage and save something for the minors

2.        Gabriel should have known that he could not serve antagonistic interests, and if the court had been apprised that he was a creditor and mortgagee of the estate, he would not have been appointed as guardian

3.        No man can serve two masters; for either he will hate the one, and love the other; or else he will hold to the one, and despise the other." The truth of this Divine doctrine is exemplified in the guardianship of the Gatchalian minors, wherein Perfecto Gabriel undertook to serve two masters; Perfecto Gabriel or the Santa Clara Monastery as mortgagee and the said minors as mortgagors. Of course, the latter were "despised" and had to institute a series of litigations lasting now over ten years to secure redress.

WON the minors were prejudiced by the foreclosure of the mortgage? YES

-Gabriel bought the property at P9,600 and immediately sold it to Garchitorena for P10,367, thereby enriching himself at the expense of his former wards. Regardless of the Machuca offer to buy, or the Navarro offer to loan on, the property in question, and assuming that the sale by Gabriel to Garchitorena was genuine as contended by the petitioners, and not a mere scheme to frustrate the minors' recovery of said property as contended by the respondent, Gabriel's attempt to profit, however little, at the expense of the minors cannot be sanctioned by the Court. It was a breach of trust which the law condemns under any and all circumstances

WON there's extrinsic or collateral fraud by reason of which the judgment rendered in the foreclosure suit may be annulled in this separate action?

No…mahaba…irrelevant to guardianship

WON the sale by Gabriel to Gatchitorena was valid (WON she was a purchaser in GF)? NO

-As a matter of act, Garchitorena has completely divested herself of the title to the property in question, which now stands in the name of Jesus Pellon, who did not appeal and thereby acquiesced in the judgment ordering the cancellation of said title. Garchitorena's conduct in simulating the transfer of the property in question to Jesus Pellon after the commencement of this action was inconsistent with honesty and good faith

Disposition: judgment affirmed

ASSIGNMENT NO.9

Rule 94 Bonds of Guardians

Sec. 1. Bond to be given before issuance of letters; Amount; Conditions.- Before a guardian appointed enters upon the execution of his trust, or letters of guardianship issue, he shall give a bond, in such sum as the court directs, conditioned as follows:

   (a) To make and return to the court, within three (3) months, a true and complete inventory of all the estate, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him;

   (b) To faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward;

   (c) To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs; and at the expiration of his trust to settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto;

   (d) To perform all orders of the court by him to be performed.

Sec. 2. When new bond may be required and old sureties discharged. - Whenever it is deemed necessary, the court may require a new bond to be given by the guardian, and may discharge the sureties on the old bond from further liability, after due notice to interested persons, when no injury can result therefrom to those interested in the estate.

Sec. 3. Bonds to be filed; Actions thereon. - Every bond given by a guardian shall be filed in the office of the clerk of the court, and, in case of the breach of a condition thereof, may be prosecuted in the same proceeding or in a separate action for the use and benefit of the ward or of any other person legally interested in the estate.

Guerrero v. Teran

Summary: Present guardian of the minors collects from the administrator of the estate from whom the minors had interest. However, it appears that the former guardian of the minors took over the management of their interests in the said estate for some time before being replaced. Court held that the guardian, and not the administrator of the estate from whom the minors had interest, is liable for the indebtedness collected by the present guardian of the minors, as she did give a bond and the mere fact of removal did not relieve her from any liability.

*The bond of the guardian is a continuing one against the obligors and their estates until all of its conditions are fulfilled. The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian (Duration of liability. R94.3)

Facts:

-Antonio Sanchez Munoz died. His estate was administrated by LEOPOLDO TERAN from SEPT 1901, entering a bond of $10k gold for faithful compliance.

-it appears that Antonio Sanchez Munoz had the minors Maria Manuela and Maria del Carmen Sanchez Munoz as heirs.

-March 1902: MARIA MUNOZ y GOMEZ was appointed, after paying bond for faithful compliance of duties, as the GUARDIAN of the 2 minors

-OCT1906: MARIA MUNOZ y GOMEZ  was removed as guardian because she was not a resident of the Philippines at the time of her appointment. Felix Samson was appointed as guardian for the heirs, executed a bond for faithful compliance.

-March 1908: SALVADOR GUERRERO, the present guardian of the minors (though no info when he was appointed) filed action for recovery of P4,129.56 and costs from LEOPOLDO TERAN

 ANSWER: only admitted P188.39 plus alleged the plaintiff owed him P482.14 so the plaintiff even owes him P239.75

TC: TERAN liable to the plaintiff for only P3447.46 with 6%

-TERAN appealed

WON TERAN, as the administrator of the estate of Antonio Sanchez Munoz from September 1901 until October 1906, is liable to the plaintiff for the items listed (comprised of loans made to different persons for different accounts)? NO

-Teran was the administrator of the estate of the minors only from September 1901 when he was appointed, until March 1902, when MARIA MUNOZ y GOMEZ was appointed as guardians for the minors and the latter's estate.

-as such, MARIA MUNOZ y GOMEZ was the actual guardian of the minors and their estate and therefore, is responsible to the minors for the administration of their interests in the estate

-if during this time she allowed other persons to handle the property of her wards, and if any mismanagement or loss occurred thereby, the responsibility must fall upon her

-The mere fact that she had been removed as said guardian did not relieve her, nor her bondsmen from liability to the minors during the time that she was duly acting as said guardian.

-MARIA MUNOZ GOMEZ may have a COA against the persons to whom she entrusted the direct management of the estate.

-summary of liabilities (no dates when amounts were due)

·         TERAN liable to plaintiffs for the fruits and profits from their interests in the estate of ANTONIO SANCHZ MUNOZ from September 1901 to March 1902 - which is only P188.39

·         DONA MARIA MUNOZ liable to plaintiffs for the fruits and profit resulting from the management of the estate from MARCH 1902 until OCTOBER 1906

[OBITER] WON it was proper to remove DONA MARIA y MUNOZ as the guardian on the ground that she was not residing in RP? YES

There is nothing in the law which requires the courts to appoint residents only as administrators or guardians. However, notwithstanding the fact that there are no statutory requirements upon this question, the courts, charged with the responsibilities of protecting the estates of deceased persons, wards of the estate, etc., will find much difficulty in complying with this duty by appointing administrators and guardians who are not personally subject to their jurisdiction. Notwithstanding that there is no statutory requirement, the courts should not consent to the appointment of persons as administrators and guardians who are not personally subject to the jurisdiction of our courts here.

Arroyo v. Jungsay

Summary: the sureties of the absconding former guardian, who is being sued for the bond he executed upon appointment, are invoking the principle of excussion to escape liability. Court held that they must first point out available properties first to be able to enjoy said principle

*The sureties of a guardian against whom judgment has been entered, may demand the benefit of a levy (exclusion) of the principal’s property, even when judgment is rendered against both surety and principal. But to do so, they must point out property subject to seizure in an amount sufficient to satisfy the debt. (Right of Surety. R94.3)

Facts

-FLORENTINO HILARIO JUNGSAY was appointed as guardian of the imbecile TITO JOCSING. He executed a bond, secured by as surety executed by the bondsmen of  JUNGSAY.

-HILARIO absconded with the funds of the ward.

-so new guardian of TITO, JOSE M. A. ARROYO, sued JUNGSAY and his bondsmen for the P6k absconded, plus interests and costs

TC: BOTH JUNGSAY and BONDSMEN liable

-bondsmen appealed: they should be afforded the benefit of excusion, thus, should be credited P4,400 (value of certain property of the absconding guardian, which is however in the exclusive possession of 3P under claim of ownership

WON bondsmen should be credited w/ P4400 and thus benefit from the principle of excusion? NO.

-Surety has benefit of levy (excusion), even when the judgment is rendered against both the surety and the principal. [A1834, NCC]

-BUT [A1832, NCC]: the surety must point out property of the principal creditor which can be sold and which is sufficient to cover the amount of the debt.

-MANRESA EXPLANATION: property should be

·         Realizable

·         Situated w/n territory of the court/state - the attachment of property situated a great distance away would be a lengthy and extremely difficult proceeding and one that, if actually not opposed to, yet does not very well accord w/ the purpose of the bond (to insure the fulfillment of the obligation + furnish the creditor with the means of obtaining its fulfillment w/o hindrance or delays)

-HILL & CO v. BOURCIER and POND: plea of excusion does not stay the proceedigns but judgment will be modified so as to require the creditor to proceed by execution against the property of the principal and to exhaust it before resorting to the property of the surety.

-HERE: The property pointed out by the sureties is not sufficient to pay the indebtedness; it is not salable; it is so encumbered that third parties have, as we have indicated, full possession under claim of ownership without leaving to the absconding guardian a fractional or reversionary interest without determining first whether the claim of one or more of the occupants is well founded.

Rule 95 Selling and Encumbering Property of Ward

Sec. 1. Petition of guardian for leave to sell or encumber estate. - When the income of an estate under guardianship is insufficient to maintain the ward and his family, or to maintain and educate the ward when a minor, or when it appears that it is for the benefit of the ward that his real estate or some part thereof be sold, or mortgaged or otherwise encumbered, and the proceeds thereof put out at interest, or invested in some productive security, or in the improvement or security of other real estate of the ward, the guardian may present a verified petition to the court by which he was appointed setting forth such facts, and praying that an order issue authorizing the sale or encumbrance.

Sec. 2. Order to show cause thereupon. - If it seems probable that such sale or encumbrance is necessary, or would be beneficial to the ward, the court shall make an order directing the next of kin of the ward, and all persons interested in the estate, to appear at a reasonable time and place therein specified to show cause why the prayer of the petition should not be granted.

Sec. 3. Hearing on return of order; Costs. - At the time and place designated in the order to show cause, the court shall hear the proofs and allegations of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or refuse the prayer of the petition as the best interests of the ward require. The court shall make such order as to costs of the hearing as may be just.

Sec. 4. Contents of order for sale or encumbrance, and how long effective; Bond. - If, after full examination, it appears that it is necessary, or would be beneficial to the ward, to sell or encumber the estate, or some portion of it, the court shall order such sale or encumbrance and that the proceeds thereof be expended for the maintenance of the ward and his family, or the education of the ward, if a minor, or for the putting of the same out at interest, or the investment of the same as the circumstances may require. The order shall specify the causes why the sale or encumbrance is necessary or beneficial, and may direct that estate ordered sold be disposed of at either public or private sale, subject to such conditions as to the time and manner of payment, and security where a part of the payment is deferred, as in the discretion of the court are deemed most beneficial to the ward. The original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale, but the judge may, if deemed expedient, require an additional bond as a condition for the granting of the order of sale. No order of sale granted in pursuance of this section shall continue in force more than one (1) year after granting the same, without a sale being had.

Sec. 5. Court may order investment of proceeds and direct management of estate. - The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other of his ward's money in his hands, in real estate or otherwise, as shall be for the best interest of all concerned, and may make such other orders for the management, investment, and disposition of the estate and effects, as circumstances may require.

Zabate vs. Ponce

[R95.1 & 2]

Summary: 2^nd wife of great grandfather of minor contested the orders in the guardianship proceedings because there was no notice given to her (she alleging that she owned the said properties)

*NEXT OF KIN def (citing LOPEZ V. TEODORO)

Facts:

-Ignacia Zabate was the step-grandmother (2nd wife of minor's great grandfather).

-Minor was JOSE PONCE

-there was an ongoing guardianship proceeding of the minor JOSE PONCE. NO NOTICE was given to them

-she thus filed a MOTION FOR ANNULMENT OF PREVIOUS ORDERS:

1.        Authorizing mortgage of minor's interests in 2 lots

2.        Sale of the minor's interests in the 2 lots

GROUND: lack of notice

TC: Denied motion

The movant being merely the step-grandmother, not a relative, she is not entitled to notice of the guardianship proceedings

WON a step-grand-grandmother is entitled to receive notice in a guardianship proceeding? NO.

1. only the NEXT OF KIN OF THE WARD are entitled to notice of the guardianship proceedings

-NEXT OF KIN (LOPEZ v. TEODORO): those relatives whose relationship is such that they are entitled to share in the minor's estate as distributees

-HERE: IGNACIA is the 2nd wife of the minor's great grandfather

…so ABSOLUTELY NO INTEREST - not even a remote heir in case of the minor's death (not related by blood to the minor)

2. Even if true that the properties mortgaged and sold belonged to her and her children, she should have filed a separate action in the court of proper jurisdiction

Lopez vs. Teodoro

Summary: Sister of incapacitated ward contested the sale of the only property of the ward, alleging that there was no notice nor hearing first conducted by the court before authorizing the said sale. The court held that she, not being an heir or a creditor prejudiced by the said sale, is not entitled to notice nor to contest the said sale.

*NEXT OF KIN [R95.2]: not the next of kindred but those relatives who share in the estate according to the statute of distribution, including those claiming per stripes or by representation

*Only the children have an interest in the land of their father, besides the creditors, and only they or the creditors who may have been prejudiced by the sale have a right to object thereto. [Opposition to sale or encumbrance, by whom filed, R95.2]

*Appeal, not certiorari or mandamus, is the proper remedy against an order of the court authorizing the sale of the ward’s property [Remedy against order of the court authorizing the guardian to sell the ward’s property, R96.4]

Facts:

-Eulalio Lopez, Sr. is already incapacitated. He is under the judicial guardianship of Eulalio Lopez, Jr.  But is under the actual care and custody of his sister SALVACION LOPEZ

-EL Sr. owned absolutely a hacienda in SILAY, NEGROS OCCIDENTAL.

-there were claims against the estate of the ward by  the Gamboas (Senen and Adelaida) which amounts to P7,312 plus 12%. These loans were properly authorized by the court.

TC: allowed the payment of the court, and if no funds to pay the debt, guardian was ordered to take the necessary steps for the sale of some of the property of the guardianship

*said order authorized the sale of some of the property w/o notice to the next of kin of the ward and all persons interested in the estate

*no hearing to show cause why the sale should not be allowed

*no specification WON sale should be done privately or publicly

-pursuant to the order, EL Jr. sold the hacienda, the only property of EL Sr., to JESUS JALBUENA. JALBUENA bound himself to pay the mortgage debt and other obligations of the said property.

-Salvacion Lopez (sister of EL Sr. and who had actual care and custody of EL Sr.) filed MR of court's order authorizing sale: it was prejudicial to EL Sr.'s interest

>>>MR DENIED

>>>SO SALVACION filed PETITION FOR CERTIORARI AND MANDAMUS

WON CERTIORARI AND PROHIBITION WAS THE PROPER REMEDY FOR CONTESTING THE ORDER? NO

- Without deciding the legality or illegality of the sale, or whether this matter should be ventillated in an ordinary action instead of in a proceeding for certiorari, it is evident that appeal and not certiorari or mandamus is the proper remedy. Unquestionably, the court of first instance in which the guardianship proceedings were pending had jurisdiction to order the questioned sale. The court's jurisdiction is not disputed. Nor was there an abuse of discretion, judging from the averments in the answers. It appears that the outstanding indebtedness of the guardianship properly and legally incurred amounted to P36,833.66, part of which was due the petitioner for the support and maintenance of the incapacitated.

WON the order of the court authorizing the sale w/o hearing the next of kin of the ward was proper? YES

1.        The outstanding debt of the ward at the time of sale was P36,833.66. Part of this was due to SALVACION for support and maintenance of EL Sr.

2.        SALVACION had no legal interest in her complaint.

a.        She is only the ward's sister - not a forced heir so not prejudiced by the sale she seeks to impugn

b.        Even if she was a creditor, her credit was not impaired but was in fact paid

WON SALVACION IS A "NEXT OF KIN" WHICH IS ENTITLED TO TAKE PART IN THE PROCEEDINGS FOR THE DETERMINATION OF THE PROPERNESS OF THE SALE? NO

-NEXT OF KIN:

-relatives whose relationship is such that they are entitled to share in the estate as distributees

-not the next of kindred but those relatives who share in the estate according to the statute of distribution including those claiming stripes or by representation

*here, sale was not opposed by the children nor the creditors. If ever there were creditors prejudiced, they have the right to object to the sale

Singco vs. Longa

Summary:

*Notice to the next of kin mandated under R95 is a jurisdictional requirement which may not be dispensed with. [Notice as a Jurisdictional Requirement. R95.2?]

Rule 96 General Powers and Duties of Guardians

Sec. 1. To what guardianship shall extend. - A guardian appointed shall have the care and custody of the person of his ward, and the management of his estate, or the management of the estate only, as the case may be. The guardian of the estate of a nonresident shall have the management of all the estate of the ward within the Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship.

Sec. 2. Guardian to pay debts of ward. - Every guardian must pay the ward's just debts out of his personal estate and the income of his real estate, if sufficient; if not, then out of his real estate upon obtaining an order for the sale or encumbrance thereof. 

Sec. 3. Guardian to settle accounts, collect debts, and appear in actions for ward. - A guardian must settle all accounts of his ward, and demand, sue for, and receive all debts due him, or may, with the approval of the court, compound for the same and give discharges to the debtor, on receiving a fair and just dividend of the estate and effects; and he shall appear for and represent his ward in all actions and special proceedings, unless another person be appointed for that purpose. 

Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. - A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereon, so far as may be necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order so to do, and apply so much of the proceeds as may be necessary to such maintenance. 

Sec. 5. Guardian may be authorized to join in partition proceedings after hearing. - The court may authorize the guardian to join in an assent to a partition of real or personal estate held by the ward jointly or in common with others, but such authority shall only be granted after hearing, upon such notice to relatives of the ward as the court may direct, and a careful investigation as to the necessity and propriety of the proposed action.

Sec. 6. Proceedings when person suspected of embezzling or concealing property of ward. - Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the estate of the ward as creditor, heir, or otherwise, that anyone is suspected of having embezzled, concealed, or conveyed away any money, goods, or interest, or a written instrument, belonging to the ward or his estate, the court may cite the suspected person to appear for examination touching such money, goods, interest, or instrument, and make such orders as will secure the estate against such embezzlement, concealment or conveyance.

Sec. 7. Inventories and accounts of guardians, and appraisement of estates. - A guardian must render to the court an inventory of the estate of his ward within three (3) months after his appointment, and annually after such appointment an inventory and account, the rendition of any of which may be compelled upon the application of an interested person. Such inventories and accounts shall be sworn to by the guardian. All the estate of the ward described in the first inventory shall be appraised. In the appraisement the court may request the assistance of one or more of the inheritance tax appraisers. And whenever any property of the ward not included in an inventory already rendered is discovered, or succeeded to, or acquired by the ward, like proceedings shall be had for securing an inventory and appraisement thereof within three (3) months after such discovery, succession, or acquisition.

Sec. 8. When guardian's accounts presented for settlement. - Expenses and compensation allowed. Upon the expiration of a year from the time of his appointment, and as often thereafter as may be required, a guardian must present his account to the court for settlement and allowance. In the settlement of the account, the guardian, other than a parent, shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and also such compensation for his services as the court deems just, not exceeding fifteen per centum of the net income of the ward. 

In Re Guardianship of the Minor Roy Reginald Lelina. SEVERO VILORIA vs. ADMINISTRATOR OF VETERANS AFFAIRS

Summary: Administrator of Veteran Affairs claims that the amounts received by the ward was wrongfully issued, so sought refund (and alleging that their finding that there was erroneous issuance was final and conclusive). The court held that status quo should be observed, that the Administrator cannot make their findings binding upon RP courts when they are seeking relief from it, and the claim arguing erroneous payment should be tried separately.

*Conflicts regarding the ownership or title to the property in the hands of the guardian in his capacity as such, should be litigated in a separate proceeding, the court in the guardianship proceeding being solely concerned with the ward’s care and custody and proper administration of his properties. [questions of title to property in the hands of the Guardian. R.96.1]

*After a guardian has been appointed by the court for the minor child of one who is alleged to have been a member of the Armed Forces, and the guardian collects money by way of insurance benefits and unpaid salary, he becomes the lawful possessor of the amounts paid and cannot be deprived thereof on the sole allegation of the Veterans Administrator that the money was erroneously paid, the burden being upon the Administrator to satisfy the court that the alleged mistake was really committed [Lawful possession of the Ward’s Estate, R96.2]

Facts:

-Allegedly, CONSTANCIO LELINA served as a member of the US ARMED FORCES during the Japanese war.

-CONSTANCIO had a son named ROY REGINALD LELINA.

-When CONSTANCIO died, ROY REGINALD received the arrears pay, insurance, and other benefits from the US VETERANS ADMINISTRATION.

-SEVERO VILORiA was appointed guardian of ROY REGINALD. The guardian was authorized to withdraw from the estate of his ward the sum of P30 a month for ROY REGINALD's support and other expenditures.

-in the guardianship proceedings...

...US VETERANS ADMINISTRATION filed motion to stop further payment of monthly allowances to the minor

…allegedly, they received certain letters from its central office in Washington DC to the effect that CONSTANCIO LELINA was not engaged in guerilla or other service in the armed forces of US, thus not entitled to payment of gratuitous National Service Life Insurance

>>>GRANTED

…ADMINISTRATOR OF VETERAN AFFAIRS filed a motion for a refund of $2,879.68, the balance of gratuitous insurance benefits allegedly wrongfully paid still in deposit with PNB

>>guardian VILORIA opposed: submitted evidence to show that CONSTANCIO was duly recognized by both RP and US Armies

>>>DENIED

….GUARDIAN moved to be allowed to withdraw P4k from ROY REGINALD's estate to meet his needs.

>>>OPPOSED by ADMINISTRATOR OF VETERAN AFFAIRS: NO JURISDICTION: minor's rights to NATIONAL SERVICE LIFE INSURANCE is governed exclusively by the S.S. Code Annotated, which provides that decisions of the Administrator shall be FINAL AND CONCLUSIVE ON ALL QUESTIONS OF LAW OR FACT AND NO OTHER OFFICIAL OF THE US, EXCEPT A JUDGE OR JUDGES OF THE UNITED STATES COURTS, SHALL HAVE JURISDICTION TO REVIEW SUCH DECISIONS

TC: Status quo

-the question of WON Constancio did render valid military service to justify payment to him or to his heirs should be determined in an appropriate action

-the guardian would not be allowed to deposit any amount for the meantime

-the Administrator would not be allowed refund

-Administrator filed MR: DENIED

-now this appeal

WON theUS Code Annotated should be applied to the present case? NO (kapal face a…)

-distinguish Actions against Administrator vs. Actions where Veterans Administrator seeks a remedy from our courts. When actions are filed against the Administrator, it must be filed strictly in accordance with the conditions imposed by the Veteran's Act, including exclusive review by US Courts.

-HERE: no law or treaty which would make the findings of the VETERANS Administrator, in actions where he is a mere party, conclusive on our courts

…this argument would deprive our tribunals of judicial discretion and render them mere subordinate instrumentalities of the veterans Administrator

-in submitting itself to the jurisdiction of the court, it cannot put in issue the legality of its order

-the burden lies upon the Administrator to satisfy the court that the alleged mistake was really committed

-the Philippine Court's determination of the question is as binding upon the Veteran's Administrator as upon any other litigant

-From the time the amounts sought to be recovered were paid to the guardian, for the ward's benefit, the latter became their lawful possessor and he cannot be deprived thereof on the sole allegation of the Veteran's Administrator that the money was erroneously paid

WON a claim of improper payment to the ward (through the guardian) of benefits is properly filed in the guardianship proceedings? NO

-Guardianship proceedings are solely concerned with the ward's care, custody and proper administration and management of his properties.

-Conflicts regarding ownership or title to the property in the hands of the guardian, in his capacity as such, should be litigated in a separate proceeding

Lim Siok Huey vs. Lapiz

Summary: CHUA PUA LUN died in a Jeepney collision as a passenger. The heirs through their counsel  and the guardian ad litem appointed filed a claim for damages against the drivers of the colliding vehicles and its owners. Court held that the claim should be dismissed, it not being shown that the plaintiffs who are foreigners, allowed the suit to be brought.

*A guardian ad litem is any competent person appointed by the court for purposes of a particular action or proceeding involving a minor.

Although no express authority is required to act in a representative capacity as a negotiorum getor, one who has been appointed guardian ad litem by the court for minor heirs is not acting in that capacity and must have some express authority from the persons he purports to represent. [Guardian ad Litem. R96.2]

*The representation therefore, by an appointed guardian ad litem of the wards in the prosecution of a case involving the latter w/o proper authority from them is ineffective. Such representation would not suffice to meet the requirement of the rule, which provides that every action must be prosecuted in the name of the real party in interest [compromise by guardian ad litem. R 96.3]

-CHUA PUA LUN was riding the JAGUAR JEEPNEY when it was hit by a KAPALARAN BUS

JAGUAR JEEPNEY driver: Alfredo Lapiz

JAGUAR JEEPNEY owner: VICTORINO SAPIN

KAPALARAN BUS driver: VICENTE REYES

KAPALARAN BUS owner: LAZARO LIMJUCO

-plaintiffs surviving spouse and four surviving children, represented by their counsel, filed an action to recover damages amounting to P83,701.30

-the defendants all alleged that they were neither negligent and neither the owners of the vehicles

-court appointed CHUA PUA TAM (brother of deceased) as guardian ad litem to represent the 2 minor children of CHUA PUA LUN

TC: dismissed complaint: no evidence on record to show that the plaintiffs have authorized much less directed the commencement of the present action:

·         Plaintiffs are all citizens and residents of Communist China

·         Plaintiffs have not communicated w/ anyone in RP in connection with the filing of an action for damages in their behalf

·         Brother in law of first plaintiff and uncle of the minor children testified that the plaintiffs had not written to him nor had he communicated with them

·         Letters supposedly sent to Lim Ping Kok did not contain any intimation much less of authorization for the filing of the claim for damages

WON the plaintiffs has not authorized anyone to file case? NO

·          the plaintiffs who are the widow and children of the deceased Chua Pua Lun are all citizens and residents of Communist China

·         hey have not sent any communication to anyone in the Philippines giving authority to take whatever action may be proper to obtain an indemnity for his death other than two letters supposedly sent to Lim Ping Kok by his sister Lim Siok Huey and his mother, which do not contain any intimation nor authorization for the filing of the present action.

·         2 letters: at most contain an inquiry w/ regard progress of the case and the administration of the duck-raising business left by deceased

·         Initiated only by the counsel: while a lawyer is presumed to be properly authorized to represent any cause in which he appears, he may however be required by the court on motion of either party to produce his authority under which he appears

WON court erred in finding that there was no authority to fie the case when such question was not raised in issue nor was evidence adduced on the point? NO

-the question was properly raised by counsel for the defendants as otherwise the trial court would not have given proper attention to the matter.

-court even made this comment: "While an attorney representing a client in a case pending in Court is presumed to be authorized for the purpose, nevertheless in the case under consideration, such presumption had been destroyed and come by the very evidence presented by counsel himself ."

-the same was expressly raised by defendants Reyes and Limjuco not only in the course of the trial but in their answers. Moreover, this flaw in the case of the plaintiffs was discovered by the court in the course of the trial in view of the evidence presented by the very counsel of plaintiffs. In view of such development, the trial court could not but take notice of the matter considering the prayer in defendants' answer that they be given "such reliefs as this Court may deem just and equitable in the premises.".

WON court erred in dismissing the complaint when the authority to prosecute the case stems from the appointment of Chua Pua Tam as guardian ad litem of minors Pua Sam? NO.

-while this representation may only benefit the minors, and not the other plaintiffs, yet the same would not suffice to meet the requirement of the rule which provides that every action must be prosecuted in the name of the real party in interest

-should show that Chua Pua Tam was authorized by the heirs abroad to act as such in behalf of the minors

WON court erred in dismissing the case when it could be considered prosecuted by a negotiorum gestor? NO

-in the present case there is need of express authority on his part to represent the minors by virtue of an express provision of our Rules of Court. In negotiorum gestio no such authority is required.

Rule 97 Termination of Guardianship

Sec. 1. Petition that competency of ward be adjudged, and proceedings thereupon. - A person who has been declared incompetent for any reason, or his guardian, relative, or friend, may petition the court to have his present competency judicially determined. The petition shall be verified by oath, and shall state that such person is then competent. Upon receiving the petition, the court shall fix a time for hearing the questions raised thereby, and cause reasonable notice thereof to be given to the guardian of the person, so declared incompetent, and to the ward. On the trial, the guardian or relatives of the ward, and, in the discretion of the court, any other person, may contest the right to the relief demanded, and witnesses may be called and examined by the parties or by the court on its own motion. If it be found that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall cease. 

Sec. 2. When guardian removed or allowed to resign; New appointment. - When a guardian becomes insane or otherwise incapable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, of failed for thirty (30) days after it is due to render an account or make a return, the court may, upon reasonable notice to the guardian, remove him, and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto. A guardian may resign when it appears proper to allow the same; and upon his resignation or removal the court may appoint another in his place.

Sec. 3. Other termination of guardianship. - The marriage or voluntary emancipation of a minor ward terminates the guardianship of the person of the ward, and shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian. The guardian of any person may be discharged by the court when it appears, upon the application of the ward or otherwise, that the guardianship is no longer necessary.

Sec. 4. Record to be kept by the justice of the peace or municipal judge. - When a justice of the peace or municipal court takes cognizance of the proceedings in pursuance of the provisions of these rules, the record of the proceedings shall be kept as in the court of first instance.

Sec. 5. Service of judgment. - Final orders or judgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated.

Family Code on Emancipation

Title X: Emancipation and the Age of Majority

Note: Please see Republic Act 6809 which lowered the age of majority from twenty-one to eighteen years..

Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of twenty-one years.

Emancipation also takes place:

(1) By the marriage of the minor; or 

 (2) By the recording in the Civil Register of an agreement in a public instrument executed by the parent exercising parental authority and the minor at least eighteen years of age. Such emancipation shall be irrevocable. (397a, 398a, 400a, 401a)

Art. 235. The provisions governing emancipation by recorded agreement shall also apply to an orphan minor and the person exercising parental authority but the agreement must be approved by the court before it is recorded. (n)

Art. 236. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life. (412a)

Celis vs. Cafuir

Summary: Mother of a boy now wants to recover him from the spouses who took care of him, but the latter alleged that the mother already definitely renounced her custody and patria potestas over her child, with the execution of 2 documents. Court held that the mother merely entrusted her son to the foster mother because of circumstances beyond her control and that the designation of the foster mother as a guardian does not mean that the guardian will always assume and discharge the duties of the office or position, as guardianship is temporary. Also, the two documents contained a future condition that the foster parents could adopt the boy, but they did not so can't argue now that they are entitled to the boy.

* Guardianship is always or almost invariably understood to be temporary. While one is a minor or is incompetent, a guardian is appointed; but when minority has passed or incapacity has ceased, guardianship also terminates. [temporary nature of guardianship. R97.1]

Facts:

-ILEANA CELIS gave birth to JOEL CAFUIR

-father of JOEL seems to be an American soldier though unknown

-ILEANA's father did not want ILEANA to raise JOEL, angry and extremely displeased for the alleged disgrace that ILEANA brought onto herself and the family for having maintained ilicit relations with a man to whom she had not been married

-ILEANA's father also did not want her to have JOEL in their paternal home

-so ILEANA decided to give the custody of JOEL to SOLEDAD CAFUIR, executing 2 documents:

·         1st document: entrusts JOHN/JOEL to SOLEDAD because she did not have means to bring up the child.

·         2nd document: designates SOLEDAD as the real guardian of JOHN/JOEL CAFUIR

*both documents indicate that Mrs. Soledad could claim for adoption of Joel/John

-9 days after delivery, JOEL was given to SOLEDAD

-ILEANA spent several days after giving birth in SOLEDAD's house while recuperating then returned to her paternal home, merely visiting Joel every Saturday, giving him condensed milk, food and a little money

-Now that ILEANA is married to AGUSTIN RIVERA, and the two are now more financially capable and want JOEL CAFUIR back with them, they demanded that JOEL be given back. SOLEDAD refused so they filed PETITION FOR HABEAS CORPUS

TC: granted Habeas Corpus

WON ILEANA RENOUNCED CUSTODY OF HER CHILD IN FAVOR OF SOLEDAD? NO

-DIAZ v. ESTRERA is not applicable because in that case, Diaz the mother completely renounced her custody over the child (even imposing upon herself penal sanctions should she decide to claim back her child) and custody was granted to the father of the child, though illegitimate

-HERE: SOLEDAD and husband are strangers to the child, not related in any degree by consanguinity or affinity

-ILEANA merely entrusted her son to SOLEDAD. ENTRUSTED cannot convey the idea of definite and permanent renunciation of the mother's custody of her child

WON ILEANA, BY MAKING SOLEDAD THE REAL GUARDIAN OF JOEL, COMPLETELY RENOUNCED CUSTODY OVER HER SON? NO

-The designation of one as the guardian of another cannot and does not mean that said guardian will always assume and discharge the duties of the office or position. Guardianship is always or almost invariably understood to be temporary. While one is a minor or is incompetent, a guardian is appointed; but when minority has passed or incapacity has ceased, guardianship also terminates.

-While petitioner Ileana was still unable to care for and support her child and because she could not bring said child to live with her in the home of her father, she entrusted its custody and care to respondent. Now, that she has been emancipated from the parental authority of her father and now that she has already been married and is now in a position to care for and support her own child, this with the consent and desire of her husband, who joins her in the petition, there can no longer be any reason for depriving her of the custody of her boy. In her legitimate efforts, and to have her realize her natural desire in this respect, the law and this court should give her every help.

-SOLEDAD had the option to adopt JOEL but she did not. The statement in the document envisages a future act: that no one else may adopt JOEL except SOLEDAD.

-SOLEDAD spent for education, care, support of JOEL. She could claim in a separate proceeding for the expenses she rendered while taking care of JOEL

DISSENTING, TUASON

-mainly argues that ILEANA intended that JOEL would have permanent possession and custody of her son and she could not now just get the boy back

Crisostomo v. Endencia

Summary: Brother of a former ward was not given notice of the petition for termination of the guardianship, which granted the termination of the guardianship after the guardian and the ward herself testified that she can already take care of herself. Thus, the brother wanted the nullification of the order on ground of lack of notice to him. Court held that no notice to him needed, and that the judgment he sought to be annulled was already final and executory.

*The court, after considering the evidence offered by the parties to the petition for the termination of guardianship and finding that the ward is no longer incompetent, shall adjudge the competency of the ward and the guardianship shall cease. [grounds for termination of guardianship. adjudgment of competency. R97.1]

Facts:

-PETRONA CRISOSTOMO was under guardianship f JESUS CRISOSTOMO, appointed in 1933

-when she was already released from the NATIONAL PSYCHOPATIC HOSPITAL, JESUS filed a VERIFIED PETITION TO TERMINATE THE GUARDIANSHIP, CANCEL THE BOND FILED BY THE GUARDIAN

…allegedly, PETRONA

·         recovered her mental faculties

·         Can take care of her person

·         Can administer her property

…evidences

·         Verified statement of incompetent under oath: she was in good health, she had recovered her mental faculties and was already able to take care of herself and administer her property - this was stamped with her thumbmark and made under oath before the notary public

·         2 medical certificates issued by the doctors of Petrona

TC: approved the motion in Feb 29, 1936

-9 months passed. RAMON CRISOSTOMO filed a MOTION TO ANNUL ORDER TERMINATING THE GUARDIANSHIP PROCEEDINGS:

·         Order null and void because it was entered w/o notice to the nearest relatives of the incompetent + w/o hearing

·         PETRONA has not yet recovered her mentality

>>>OBJECTION: order sough to be annulled already became final and executory

TC: annulled order terminating the guardianship proceedings

-appealed to CA

CA: denied

WON NOTICE WAS REQUIRED TO BE GIVEN TO THE BROTHER OF THE WARD, AND LACK OF IT WOULD NULLIFY THE ORDER TERMINATING THE GUARDIANSHIP PROCEEDING? NO.

1. the judge who took cognizance of and granted the petition to restore capacity had full jurisdiction

-The procedure followed by virtue of a petition for restoration of competency is neither new nor independent; it is a continuation of the original guardianship proceedings

2.Not required that notice of the hearing be given to any other person except the guardian and the incompetent.

-what is needed in order that a court taking cognizance of the guardianship of an incompetent may issue a valid order restoring him to capacity:

(1) that a verified petition be presented by the incompetent, his guardian, or any relative of such person within the third degree, or any friend of his;

(2) that said petition should allege that the incompetent has recovered his mental faculties or his legal capacity, as the case may be; and

(3) that upon receiving the petition the court should set the same for hearing and notify the guardian and the incompetent thereof. At the hearing, the guardian, the relatives of the incompetent, and, in the discretion of the court, any other person may oppose the remedy sought.

3.Here, there's substantial compliance: the verified petition was signed by the guardian himself and was supported and accompanied by the sworn statement of the incompetent. In the petition it was stated that the incompetent had recovered her mental faculties and this allegation was corroborated by her in her sworn statement when she stated that she had already recovered her mental faculties.

4.The brother, RAMON CRISOSTOMO, could have appeared at the hearing and opposed the petition but this right given to him by law IS NOT ABSOLUTE THAT HE IS ENTITLED TO PERSONAL NOTICE.

 His situation is like that of a person who, not being a defendant in an ordinary action and not having been notified of the complaint, learns of the existence of the suit and discovers that he has a direct interest in the subject matter of the litigation; there is no question that he would be entitled to take part therein as intervener, but he cannot successfully ask for the annulment of the judgment to be rendered on the ground that he had a right to be cited or notified and to be present at the trial because it happened that he had an interest in the case.

5. Then order sought to be nullified already became final and executory.

The guardianship case was no longer before the court because the accounts of the guardian had been definitely approved, his bond had been cancelled, he had been relieved of his charge, and the incompetent had recovered her capacity before the law.

6.RAMON could have appealed the order before it became final and executory but didn't. Cannot now file appeal for certiorari because it may be successfully invoked both in cases wherein an appeal does not lie and in those wherein the right to appeal having been lost with or without the appellant's negligence

In Re Guardianship of Incompetent Jose de Inchausti

Summary: Mother petitioned to be the guardian of her son who was allegedly demented. Friend of son instituted proceedings to terminate the guardianship and notice was given to the son who was in Spain through cablegram. TC terminated the guardianship so mother appealed. Court held that notice needed need not be personal, as the court already had jurisdiction over the person of the ward. Also, if the fear of the termination of the guardianship proceeding is that the ward may be a spendthrift, then they could institute another separate proceedings to reduce his spendings.

*the notice of hearing upon the ward and the guardian as required by Section 1, Rule 97, is not intended as a personal service process in the sense necessary to give the court jurisdiction over the ward. It is therefore, of no moment that the person to be notified is living in a foreign country and thus beyond the territorial jurisdiction of the Philippine courts. Nor is the manner in which the court procured services of the notice of any importance. It is sufficient that the notice was given. The court in which guardianship was pending already had jurisdiction of the cause and the parties; and notification to the ward – a friend – is required merely as an assurance that the individual chiefly concerned shall have cognizance of what is being done. It at least, gives him an opportunity to advise the court in case action taken by the mover of the petition was officious or unauthorized. [notice of hearing of petition. R97.1]

Facts:

-JOSE de INCHAUSTI allegedly became demented and incapable of properly caring for himself and his estate (he inherited lots of money from his father) so his mother, MARIA CONSUELO RICO, VDA. DE INCHAUSTI, filed an application to be appointed as his guardian -granted

-JOSE was brought to Barcelona, Spain upon advice of physicians

-a few months later, JOSE's friend, MANUEL SOLER, filed a petition in the guardianship proceedings to REHABILITATE AND BRING THE GUARDIANSHIP TO AN END

>>>Opposition of MARIA CONSUELO:

(1) that the ward had not been given sufficient notice of the hearing and

How notice given: the clerk, by order of the court, sent a cablegram to the United States Consult at Barcelona, requesting him to notify Jose R. de Inchausti that the petition for his restoration to capacity would be heard in the Court of First Instance of Manila on October 19, 1918.

In reply to this, a cablegram was received from Barcelona on October 14, 1918, signed by the Consul General of the United States in that city, advising that Inchausti had been duly notified according to instructions.

(2) that it had not been satisfactorily shown that he is now capable of taking care of himself and property.

TC: JOSE is of sound mind, so terminate guardianship. Guardian should render her account w/n 30d from date upon which order should become final. MARIA CONSUELO appealed

WON NOTICE TO JOSE DE INCHAUSTI WAS SUFFICIENTLY GIVEN? YES

-The notification of the ward required is not intended as a personal service of process in the sense necessary to give the court jurisdiction over the ward. It is, therefore, of no moment that the person to be notified was living in a foreign country and thus beyond the territorial jurisdiction of the Manila court. Nor is the manner in which the court procured service of the notice of any importance. It is sufficient that the notice was given. The court in which the guardianship was pending already had jurisdiction of the cause and the parties; and notification to the ward — where the petition to rehabilitate him is presented by a friend — is required merely as an assurance that the individual chiefly concerned shall have cognizance of what is being done. It at least gives him an opportunity to advise the court in case action taken by the mover of the petition was officious or unauthorized.

-SUFFICIENT NOTIFICATION: the messages were sent and received by cable, as above stated, affords sufficient evidence, in the absence of anything to the contrary, that notification was duly effected, as reported in the return of the Consul General.

WON TERMINATION OF GUARDIANSHIP COULD BE PROPERLY OPPOSED BASED ON THE FEAR THAT THE WARD IS A SPENDTHRIFT? NO.

-Present mental capacity being proved, he is entitled to be discharged from tutelage.

-if he is, or should hereafter prove to be, a spendthrift, proper proceedings can be instituted to protect him from wasteful proclivities.