RULE 107 ABSENTEES

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.
1st DIVISION: Teehankee (Chairman), Melencio-Herrera, Plana, Relova Gutierrez, Jr. and
De la Fuente, JJ., concur.
Ponente: J. Patajo
NATURE: 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.
FACTS: Erlinda Reynoso and Robert L. Reyes were married on March 20, 1960.
Sometime in April 1962, her husband left the conjugal home due to some
misunderstanding over personal matters. Since then, Reynoso had not received any
news of her husbands whereabouts
1.

As such, Reynoso filed a petition (dated Oct 25, 1969) for the declaration of

2.

the absence of Roberto Reyes.

Petitioner alleged that her husband left no will nor any property in his name,
nor any debts. Her only purpose in filing the petition is to establish the death

3.

of her husband, invoking the provisions of Rule 107 ROC and Art 384 NCC
After the hearing, CFI Cavite dismissed the petition on the ground that since
Reyes left no properties, there was no necessity to declare him judicially an
absentee.

ISSUE: WON there is a need to declare Roberto Reyes judicially absent under Rule 107
ROC
HELD: No.
As held in Jones v. Hortiguela: 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

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spouse to be 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.
The need to have a person judicially declared an absentee is when
(1) he has properties which have to be taken cared of or administered by a
representative appointed by the Court (Art 384, NCC);
(2) the spouse of the absentee is asking for separation of property (Art 191, NCC)
(3)

or;
his wife is asking the Court that the administration of an classes of property
in the marriage be transferred to her (Art 196, NCC).

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).
DISPOSITIVE: 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.

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RULE 107 ABSENTEES

G.R. No. L-43701

March 6, 1937

In re Instate of the deceased Marciana Escao. ANGELITA JONES., petitionerappellant-appellee, vs. FELIX HORTIGUELA, as administrator, widower and
heir, oppositor-appellant-appellee.
EN BANC: Avancea, C.J., Villa-Real, Abad Santos, Diaz and Laurel, JJ., concur.
Ponente: J. Concepcion
Salvador E. Imperial for petitioner-appellant-appellee.
Vicente L. Faelnar , Hipolito Alo and Ciriaco S. Salazar for oppositor-appellant-appellee.
NATURE: 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 accounting.
FACTS: When Marciana Escano died intestate and was survived by her spouse, Felix
Hortiguela and Angelita Jones, her daughter by her first marriage.
1.

In

an

order

dated

May

9,

1932,

Hortiguela

was

appointed

judicial

administrator over her entire estate. As administrator, he presented an

inventory of the properties left by the decedent, a final account of his
administration, and a project of partition of the 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 to Angelita Jones
2.

(then minor, who was represented byb Paz Escano de Corominas)

Subsequently (May 3 ,1934) Jones, now married to Ernesto Lardizabal, filed a
motion alleging that she was the only heir of the decedent on the ground that
there was no valid marriage between Marciana Escano and Felix Hortiguela

ISSUE: WON Felix Hortiguelas alleged marriage to Marciana was celebrated

HELD: Yes.
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RULE 107 ABSENTEES

It is a fact that in Dec 1914, Marciana Escana married Arthur Jones in Cebu. On Jan 10,
1918, Jones secured a passport to go abroad and thereafter was never heard from
again. In Oct 1919, Marciana filed a petition to declare Jones judicially absent before
CFI Maasin, Leyte. On Oct 25, 1919, CFI Maasin declared Jones absentee pursuant to
the provisions of Art 186 Civil Code, with the proviso that said judicial declaration of
absence would not take effect until 6 months after its publication. Said order then was
published in the Official Gazette (and newspaper, El Ideal) during the months of Dec
1919, and Jan, Feb, March, April, May, and June 1920. On April 23, 1921, the court
issued another order for the taking effect of the declaration of absence. On May 6,
1927, Felix Hortiguela and Marciana Escano were married before the justice of peace of
Malitbog, Lete, and they signed the certificate of marriage.
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.
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 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.
As held in Madridejo v. De Leon: 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

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RULE 107 ABSENTEES

its validity were not present, the forwarding of a copy of the marriage certificate not
being one said requisites.
CAB: 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.
ADMINISTRATOR FEES
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.
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RULE 107 ABSENTEES

DISPOSITIVE: 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.

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