Spec Pro Class 2020

SECTION 2. Where estate settled upon dissolution of marriage.

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      When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either.

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• NOTE:

           RELATED PROVISIONS UNDER THE FAMILY CODE:

                       Article 103-104, FC

                       Article 130-133, FC

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• QUESTION:

      Upon the death of one of the spouses, where should the liquidation of the conjugal partnership be made?

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• ANSWER:

      Upon the death of one of the spouses, and before the property of the deceased can be adjudicated to his or her heirs, there must be a liquidation of the conjugal partnership and this shall be made in the proceedings for the settlement of the estate of said deceased, or in the absence thereof, in the proceedings for the settlement of the estate of the surviving spouse, upon the latter’s demise. (HERMENEGILDO ALFONSO vs. PEDRO NATIVIDAD, ET AL., 6 PHIL 240 (1906)

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SECTION 3. Process

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      In the exercise of probate jurisdiction, Court of First Instance may issue warrants and processes necessary to compel the attendance of witnesses or to carry into effect their orders and judgments, and all other powers granted them by law. If a person does not perform an order of judgment rendered by a court in the exercise of its probate jurisdiction, it may issue a warrant for the apprehension and imprisonment of such person until he performs such order or judgment, or is released.

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• QUESTION:

      Can probate courts issue writs of execution?

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• ANSWER:

      NO. As a rule, the probate court cannot issue writs of execution because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the need of executor processes. The rules, however, specify the instance wherein the probate court may issue a writ of execution, to wit:

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          1. to satisfy the contributive shares of the devisees, legatees and                       heirs in the possession of the decedent’s assets (Sec. 6, Rule 88)

          2. to enforce payment of the expenses of partition (Sec. 3, Rule 90);                 and

          3. to satisfy the courts when a person is cited for examination in                       probate proceedings (Section 13, Rule 142). Under the rule of                       inclusion uniusest exclusion alterious, these would be the instance                 only when the probate court can issue a writ of execution.

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SECTION 4. Presumption of death. 

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      For purposes of settlement of his estate, a person shall be presumed dead if absent and unheard from the periods fixed in the Civil Code. But if such person proves to be alive, he shall be entitled to the balance of his estate after payment of all his debts. The balance may be recovered by motion in the same proceeding.

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• QUESTION:

      Who can be presumed dead?

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• ANSWER:

      Under the New Civil Code:

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Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

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Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

• A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

• A person in the armed forces who has taken part in war, and has been missing for four years;

• A person who has been in danger of death under other circumstances and his existence has not been known for four years.

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Art. 392. If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents.

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• NOTE:

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• No Independent Action For Declaration of Presumption of Death:

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• The disputable presumption established by the rules of evidence that a person not heard from in seven years is dead, may arise and be invoked either in an action or in a special proceeding, which is tried or heard by, and submitted for decision to, a competent court. Independently of such as action or special proceeding, the presumption of death cannot be invoked nor can it be made the subject of an action or special proceeding.

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   • There is no need for an independent action for Declaration of                        Presumptive Death for purposes of Succession.

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• QUESTION:

      What is the reason behind the presumption?

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• ANSWER:

      The presumption is an arbitrary one rendered on the grounds of public policy in order that the rights depending on the life of one long absent and unheard of may be settled. The presumption is based on the general accepted fact that a normal person will not, if alive, remain away from home for 7 years without communicating with family or friends.

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• QUESTION:

      At what time does the period start to run?

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• ANSWER:

      The period must elapse in order to give rise to the presumption of death. Thus, the period runs from the time when the absent person is last known to have been alive.

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