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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-32026 January 16, 1986 RE: PETITION FOR DECLARATION OF ABSENCE OF ROBERTO L. REYES. ERLINDA REYNOSO REYES, petitioner, vs. HON, JOSE P. ALEJANDRO, in his capacity as Judge, Court of First Instance of Cavite, Branch II, Cavite City, respondents.

PATAJO, J.: This is an appeal from an order of the Court of First Instance of Cavite dismissing the petition filed by petitioner-appellant Erlinda Reynoso Reyes to have her husband Roberto Reyes declared an absentee. In a petition filed on October 25, 1969 Erlinda Reynoso prayed for the declaration of the absence of her husband Roberto L. Reyes alleging that her husband had been absent from their conjugal dwelling since April 1962 and since then had not been heard from and his whereabouts unknown. The petition further alleged that her husband left no will nor any property in his name nor any debts. The evidence presented by petitioner in support of her petition established that she and Roberto L. Reyes were married on March 20, 1960; that sometime in April 1962 her husband left the conjugal home due to some misunderstanding over personal matters; that since then petitioner has not received any news about the whereabouts of her husband; that they have not acquired any properties during their marriage and that they have no outstanding obligation in favor of anyone; that her only purpose in filing the petition is to establish the absence of her husband, invoking the provisions of Rule 107 of the New Rules of Court and Article 384 of the Civil Code. After hearing the Court a quo dismissed the petition on the ground that since Roberto L. Reyes left no properties there was no necessity to declare him judicially an absentee. It said: A perusal of Rule 107 of the Rules of Court on absentees reveals that it is based on the provisions of Title XIV of the New Civil Code on absence. And the reason and purpose of the provisions of the New Civil Code on absence (Arts. 381 to 396) are: (1) The interest of the person himself who has disappeared; (2) The rights of third parties against the absentee, especially those who have rights which would depend upon the death of the absentee; and (3) The general interest of society which may require that property does not remain abandoned without someone representing it and without an owner (Civil Code by Francisco, Vol. 2, pp. 930- 931, 1953 Ed.). It will thus be noted that said provisions of the New Civil Code are concerned with absence only with reference to its effects on property (2 Manresa, 101-102, Civil Code by Francisco, Vol. 2, p. 932. 1953 Ed.). Article 384, New Civil Code, which is reproduced from Article 184 of the old Code, and relied upon by herein petitioner, refers to the second period or stage of absence, and specifically indicates the precise moment when the same may begin. Thus, this article provides that after the lapse of two (2) years without any news about the absentee or since the receipt of the last news, and five (5)

years in case the absentee has left a person in charge of the administration of his property, his absence may be declared by the Court. The primordial purpose of this declaration is to provide for an administrator of the property of the absentee. It cannot be said that because of the comma (,) between the words 'news' and 'and', the two-year period mentioned in the first part of the law has no reference to or bearing on the property of the absentee. Manresa states that the only reason for the different periods is because in one case (2 years) the absentee has not left a person in charge of the administration of his property, and in the other case (5 years) the absentee has provided for his absence by appointing an administrator of his property dispensing in a way the giving of news about himself (2 Manresa, 127-128). It is worth to note, in this connection, that the first period or stage of absence as covered by Article 381 of the New Civil Code provides for provisional measures-the appointment by the Court of a person to represent the absentee' in all that may be necessary'-when a mere presumption of his absence arises. It should be noted that the appointment of a 'representative' of the absentee is for the protection of the interest of the latter. This is clear from the provisions of Article 382 which enjoins the judge to 'take the necessary measures to safeguard the rights and interests of the absentee. ... Moreover, it is not enough that a person is declared an absentee. The law (see Articles 381, 382 and 383) requires the judge to appoint a representative for the absentee precisely to safeguard the property or interest of the latter. It is thus imperative that the declaration of absence be for a specific purpose, and that purpose can be no other than the protection of the interest or property of the absentee. Castan, in his commentary, emphatically states that there must be an immediate necessity for the representation of the absentee in some specific urgent matters (Vol. 1, pp. 182-183). The same observation and commentary can be said of the corresponding complimenting provisions of Rule 107 of the Rules of Court, particularly Sections 6 and 7 thereof which make it mandatory upon the Court to appoint a representative, trustee or administrator who shall safeguard the rights and interest of the absentee. Considering that neither the petition alleges, nor the evidence shows, that Roberto L. Reyes has any rights, interest or property in the Philippines, there is no point in judicially declaring him an absentee. We affirm the order of the lower Court dismissing the petition. As this Court said in Jones vs. Hortiguela, 64 Phil. 197: ... For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to he living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage (section III, paragraph 2, General Orders, No. 68). (On page 183). The need to have a person judicially declared an absentee is when he has properties which have to be taken cared of or administered by a representative appointed by the Court (Article 384, Civil Code); the spouse of the absentee is asking for separation of property (Article 191, Civil Code) or his wife is asking the Court that the administration of an classes of property in the marriage be transferred to her (Article 196, Civil Code). The petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings, Peyer vs. Martinez, 88 Phil. 72, 80).

IN VIEW OF THE FOREGOING, judgment is hereby rendered AFFIRMING the order of the lower Court dismissing the petition to declare Roberto L. Reyes an absentee. With costs against petitioner-appellant. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana, Relova Gutierrez, Jr. and De la Fuente, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-43701 March 6, 1937

In re Instate of the deceased Marciana Escao. ANGELITA JONES., petitioner-appellant-appellee, vs. FELIX HORTIGUELA, as administrator, widower and heir, oppositor-appellant-appellee. Salvador E. Imperial for petitioner-appellant-appellee. Vicente L. Faelnar , Hipolito Alo and Ciriaco S. Salazar for oppositor-appellant-appellee. CONCEPCION, J.: This is an appeal taken from the order issued by the Court of First Instance of Cebu on March 14, 1935 , in the intestate proceedings of the deceased Marciana Escao, denying thereby: (1) the motion to appoint a new administrator and (2) to set aside the order of May 9, 1932, declaring the heirs of said deceased; (3) holding it unwarranted to declare that the properties of the intestate estate are paraphernal properties of said deceased, but reserving to the parties the right to discuss which of said properties are paraphernal and which are conjugal; (4)setting aside the order of January 10, 1933. granting to the administrator fees in the sum of P10,000, and that of June 26, 1933, approving the project of portion and the final account; and (5) ordering the presentation of another project of partition and final account. As Marciana Escao had died intestate, her widower Felix Hortiguela was appointed judicial administrator of her entire estate, and in an order issued on May 9, 1932, Angelita Jones, her daughter by her first marriage, and Felix Hortiguela, her widower by her second marriage, were declared her only heirs. In a motion filed with the conformity of the guardian of the heiress Angelita Jones, Felix Hortiguela, as administrator, prayed that his fees, as such, be fixed at P10,000 which was granted by the court in its order of January 10, 1933. The administrator later presented an inventory of the properties left by said deceased Marciana Escao, a final account of his administration, and a project of partition of the intestate estate wherein he adjudicated to himself a part of the estate in payment of his share of the conjugal properties and his usufructuary right, and the remaining part to Angelita Jones. The latter, who was a minor, was represented in the proceedings by her guardian Paz Escao de Corominas. The project of

partition and final account were approved in an order of June 26, 1933, and the properties were turned over to the respective grantees by virtue thereof. On May 3, 1934, the heiress Angelita Jones, then married to Ernesto Lardizabal, filed a motion alleging that she was the only heir of her mother, the deceased Marciana Escao; that there never was a valid marriage between her mother and Felix Hortiguela or that had such marriage been celebrated, it was null and void; and even granting that it were valid, Felix Hortiguela was not entitled to a share in usufruct of one-third of the inheritance; that the petitioner was a minor and that during the hearing of the intestate proceedings she had not been assisted by counsel but was represent by the same attorney of Felix Hortiguela; that during said proceedings there had been committed many errors and inaccuracies which impaired her rights and that the fees of P10,000 charged by the administrator were highly unreasonable and unconscionable. She prayed: (a) for the reopening of the proceedings; (b) that her husband appointed special administrator without bond; (c) that her mother's alleged marriage to Felix Hortiguela be declared null and void; (d) that the partition of the properties made by administrator or Hortiguela be declared null and void that petitioner be declared the only universal heir of her deceased mother; and (e) that in case there was a valid marriage between Felix Hortiguela and Marciana Escao, Hortiguela be declared not entitled to the widower's usufruct; the errors in the administrator's account be corrected; the latter be granted a remuneration of only P4 a day, and new partition of the properties be made. After Hortiguela's answer had been filed and the evidence for both parties received, the court issued the order of March 14, 1935, the provisions of which are stated in the first paragraph of this decision. Both parties appealed therefrom. The principal question upon the resolution of which depends that of the others, is whether or not Felix Hortiguela's alleged marriage to Marciana Escao was celebrated. It is a fact that in December, 1914, Marciana Escao married Arthur W. Jones in the suburban catholic church of San Nicolas, Province of Cebu. On January 10, 1918, Jones secured a passport to go abroad and thereafter nothing was ever heard of him. In October, 1919, proceedings were institute in the Court of First Instance of Maasin, Leyte, at the instance of Marciana Escao, to have her husband judicially declared an absentee. On the 25th of said month, the court issued an order declaring Arthur W. Jones an absentee from the Philippine Islands pursuant to the provisions of article 186 of the Civil Code, with the proviso that said judicial declaration of absence would not take effect until six months after its publication in the official newspapers. Said order directed the publication thereof in the Official Gazette and in the newspaper "El Ideal". Pursuant thereto, said order was published in the Official Gazette during the month of December, 1919, and January, February, March, April, May and June, 1920. On April 23, 1921, the court issued another order for the taking effect of the declaration of absence, publication thereof having been made in the Official Gazette and in "El Ideal." On May 6, 1927, Felix Hortiguela and Marciana Escao were married before the justice of the peace of Malitbog, Leyte, and they signed the certificate of marriage. Now, Angelita Jones contends that the declaration of absence must be understood to have been made not in the order of October 25, 1919, but in that of April 23, 1921, and that from the latter

date to May 6, 1927, the date of the celebration of the marriage, only 6 years and 14 days elapsed; and in accordance with section III, paragraph 2, of General Orders, No. 68, the marriage so contracted by Felix Hortiguela and Marciana Escao is null and void. This court does not believe so. For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believe at the time of the celebration of the marriage (section III, paragraph 2, General orders, No. 68). In accordance with the foregoing legal provision, the absence of Marciana Escao's former husband should be counted from January 10, 1918, the date on which the last news concerning Arthur W. Jones was received, and from said date to May 6, 1927, more than nine years elapsed. Said marriage is, therefore, valid and lawful. For some unknown reason not attributable, of course, to the fault or negligence of Felix Hortiguela or Marciana Escao, the marriage contracted does not appear recorded in the marriage register of the municipality of Malitbog. Angelita Jones assigns as one of the errors of the court its having declared that failure to record said marriage does not affect the efficacy and validity thereof. On this point, the court a quo very correctly stated as follows: Section VIII of General Orders, No. 68, as amended, provides that the person solemnizing the marriage must transmit the marriage certificate to the municipal secretary, and failure to transmit such certificate shall be fined not less than twenty-five and not more than fifty dollars; but does not provide that failure to transmit such certificate to the municipal secretary annuls the marriage. Interpreting this legal provision, the Supreme Court, in its decision of September 5, 1931 (Madridejo vs. De Leon, 55 Phil., 1 ) said: "The mere fact that the parish priest who married the plaintiff's natural father and mother, while the latter was in articulo mortis failed to send a copy of the marriage certificate to the municipal secretary, does not invalidate said marriage, since it does not appear that in the celebration thereof all requisites for its validity were not present, the forwarding of a copy of the marriage certificate not being one said requisites." In another case (U. S. vs. De Vera, 28 Phil., 105), the court said: "Certificate issued pursuant the provisions of section 20 of the Municipal Code by municipal secretaries, marriages recorded in their respective registers, are not the only ones that can attest and prove such facts to such an extent that other proofs established by

law may not be presented or admitted at trial, when through the omission or fault either of the municipal secretary himself or of the person who solemnized the marriage, it was not duly entered or recorded in the municipal register." Furthermore, Marciana Escao believed Arthur W. Jones to be dead when she contracted her second marriage. Her daughter Angelita Jones herself was of the same belief, since she lived with her mother after the latter had married Hortiguela, treated Hortiguela as her true stepfather, and lived and traveled with him together with her mother. She certainly would not have behaved so if she had not believed her father to be dead. Still furthermore, according to section 334, No. 24, of the Code of Civil Procedure, a person not heard from in seven years is presumed to be dead. Inasmuch as Felix Hortiguela was lawfully married to Marciana Escao and was divorced from her at the time of her death there is no doubt that he is entitled to inherit in usufruct, not only in testate but also in intestate succession, as in the present case (6 and 7 Manresa, pages 497-499 and 134-141, respectively). Therefor, there is no reason to annul the order of May 9, 1932, declaring that the heirs of the deceased were her widower and her daughter Angelita Jones. Neither is there any reason to annul the order of June 26, 1933, approving the partition of the properties of the intestate estate. The inaccuracies and error attributed to the administrator Felix Hortiguela in Angelita Jones' motion and alleged therein as one of the grounds for asking for the reopening of any assignment of error. It should, therefore, be considered that the petitioner has desisted from her intention relative to this alleged ground for the nullity of the proceedings. As to the administrator's fees, the evidence shows that of the P10,000 granted by the court to Hortiguela as his own sum of P8,000 for the latter's professional services in this as well as in other cases affecting the estate of his deceased wife. Taking into consideration the nature of and the amount involved in this and in the other cases wherein Attorney Faelnar has rendered his services this court is of the opinion that the sum of P8,000 paid by the administrator is a reasonable and moderate compensation. Angelita Jones' objection to the effect that she had no reason to contribute to the payment of Faelnar's fees is untenable, considering the fact that said attorney's professional services were rendered for the benefit of the administration of the estate of the deceased Escao prior to the controversy provoked by said heiress. As to the remainder of P2,000, said administrator is entitled to collect the sum of P4 for every day employed by him as such, and considering the importance of the inheritance in question and the time elapsed since the inception of the administration proceedings this court is of the opinion that the sum of P2,000 is an adequate compensation for said administrator's services. Lastly, had the court jurisdiction to set aside, as it did, the order of January 10, 1933, approving the administrator's fees and the order of June 26, 1933, approving the partition and the final account? Had the court jurisdiction to order the presentation of another project of partition and final account? These are the questions raised by Felix Hortiguela and this court is of the opinion that said orders having therefrom, the court has lost jurisdiction that no appeal was ever taken therefrom, the court has lost jurisdiction over the case and it could not resume it under section

113 of the Code of Civil Procedure or under section 598 thereof because the above-cited section refer to grounds other than those upon which Angelita Jones' motion of May 3, 1934, is based. For all the foregoing consideration this court reverses the appealed order of March 14, 1935, in so far as it set aside the order of January 10, 1933, relative to the administrator's fees and the order of June 26, 1933, approving the final account and the project of portion, and in so far as said order of March 14, 1935, required the presentation of a new project of partition; denied the appointment of Angelita Jones husband as administrator; affirms the order of May 9, 1932, relative to declaration of heirs; and holds it unwarranted to make a finding as to whether or not the properties of this intestate estate are paraphernal properties of the deceased Marciana Escao reserving to the parties the right to discuss which are paraphernal and which are conjugal properties. So ordered. Avancea, C.J., Villa-Real, Abad Santos, Diaz and Laurel, JJ., concur.