Charlene one of the children filed an opposition to

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Charlene, one of the children, filed an opposition to the petition, alleging that there was neither an allegation nor genuine effort to settle the estate amicably before the filing of the petition. Rule on the opposition. (5%) (2010 Bar Question) SUGGESTED ANSWER: The opposition should be overruled for lack of merit. The allegation that there was a genuine effort to settle the estate amicably before the filling of the petition is not required by the Rules. Besides, a petition for issuance of letters of administration may be contested on either of two grounds: (1) the incompetency of the person for whom letters are prayed therein; and (2) the contestant's own right to the administration. (Sec. 4, Rule 79).
188 F. Claims against the estate Q: A filed a complaint against Y with the RTC of Argao, Cebu, for payment of a promissory note in the- sum of P50.000.00, for liquidated damages of P5.000.00 and attor ney’s fees of P5.000.00. After he filed his answer, Y died, but his lawyer did not file a motion to dismiss. In the meantime, Y*s widow filed with the above court a special proceeding for the settlement of the intestate estate of Y. The widow, Z, was appointed the administratrix of the estate. A filed in the civil case a motion to have Y substituted by the administratrix; the latter did not object. The court granted the motion. Trial on the merits was had. In due course, the court rendered a decision in favor of A. At the time it was rendered, the period to file claims in the intestate estate of Y had already lapsed. The administratrix, X, did not appeal from the decision; and after it became final. A moved for the execution of judgment, Z opposed the motion contending that the decision is void because the claim does not survive. The case should have been dismissed upon the death of Y since upon his death, the court lost jurisdiction over the case. (1991 Bar Question) a) Rule on the issue. Answer: a) Since Y died before final Judgment in the RTC, the action for money should have been dismissed and prosecuted as a money claim against his estate. However, since the widow. Z, who was appointed administratrix of the estate, did not object to the trial on the merits and did not appeal from the decision, she is deemed to have waived the right to have the claim litigated in the estate proceedings. Moreover, she is estopped from questioning the court's jurisdiction. Hence, the decision is valid. (Sec. 21 of Rule 3; Ignacio v. Pambusco, 20 SCRA 126; Echaus u. Blanco. 179 SCRA 704) (b) If the opposition is without merit, can the writ of execution be validly issued? Answer: (b) No, because a Judgment for money cannot be enforced by a writ of execution against the estate of the deceased which is in custodia legis . (Sec. 7 of Rule 39; Paredes v. Moya, 61 SCRA 527) (c) If it cannot be issued, what is the remedy of A?

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