SPECIAL PROCEEDINGS

Reviewing is also physical conditioning.

3 requirements of a cause of action: the most

important here is the violation of that right.

Foundation is the important thing in preparation.

Because there may be a duty or right but no

violation of right or duty.

22:33

Example: No payment but there is no demand.

You do not need to go to the court anymore to

constitute a family home by operation of law.

Whenever you file a petition for the settlement

of estate or probate of a will you always look
into the worded Article 777 It is only from the
moment of death that there shall be transmission
of successional rights.

No need to go to the court anymore.

23:59:
Special proceedings
Adoption you are going to establish a
relationship
Petition for the settlement of the estate or
probate you are going to establish a fact
DISTINCTION: SPEC PRO CIVIL
ACTION:
If you are going to establish a fact, if you are
going to file a petition in order to establish a fact
or a right or a relationship then you are filing a
special proceeding
Ordinary action if are going to file an action
to enforce a right or in order to redress a wrong.
Example: Complaint for a sum of money. There
is a promissory note that you have to pay in a
certain amount without demand.
Here you file an action to collect
payment
This is an instance to enforce a right or
redress a wrong.
The wrong here is the non-payment of
the obligation.
You have a cause of action if there is a
right there is a duty, if there is a
violation of that right.

So that if your father left a will and died right

after,
A and B married
Children = X Y Z
Death of A, B with two of the children file a
petition for the settlement of the estate.
Z filed an opposition on the ground that the
petition does not allege a prior recourse to
compromise. It is between and among the
immediate members of the family. Under section
1 rule 16 of the rules of court in relation to
article 151 FC there must be a prior recourse to
compromise.
Whenever there is a suit between immediate
members of the family there must be an
allegation of a prior recourse to compromise for
that matter. And that is a condition precedent
under section of rule 16 of the rules of court.
Problem: He files a motion to dismiss, in a case
of Manalo.
It was a settlement of estate but there was no
allegation of a prior recourse to compromise.
Q. Do you need to allege that in the settlement
of estate?

Remember that the settlement of estate is not the

kind of suit that is referred to in the provisions
of Article 151 of the FC. The allegation of a
prior to compromise is not considered a
condition precedent there. For the reason that it
is not a suit referred to in the provisions of the
law. The only suit that is referred to by the law
(151) is where that is an ADVERSARIAL OR
CONTROVERSIAL ACTION BETWEEN
AMONG AND MEMBERS OF FAMILY.

From the moment of death there is transmission

of successional rights.

SC: Settlement of the estate of the deceases is

NOT AN ADVERSARIAL PROCEEDING
NOR A CONTROVERSIAL!

You will not even go to the court to declare that

a person is already dead! Because by mere fact
of absence for a period of 10 years or of the
person disappears in the age of 75 for a period of
5 years the person has disappeared he is
presumed dead.

The issue here is who are the heirs are! Is it

executed with the formalities prescribed by the
law. Is the testator is capacitated or not?

Because settlement of estate whether testate or

intestate, is found on the worded if the death is
actual or physical or presumptive.
Because even if the person is still alive but if the
person has been is absent for 10 years or more.
The law presumes that the person is already
dead.

Example: if you file a complaint for a collection

of a sum of money and the other party says,
wala naman akong utang sayo e. Ikaw may
utang e, so there is a controversy. And if you sue
your brother or sister for a sum of money then
you need to alleged that.

Note: You dont have to go the court!

But not in a special proceeding in order to

establish a right, fact because that is not a
controversial action.

Your father was born in manila 36:49

Whether the death or actual meaning physical

death.
Bar question: What are the kinds of death?
Explain briefly!