Article 381, 382 & 383

By Edwin C Nesortado

CHAPTER 1

Provisional Measures in Case of Absence

Article 381. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary. This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. (181a)

When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary.

This same rule shall be observe when under similar circumstances the power conferred by the absentee has expired. (181a)

The administration of the property in the absence of the owner may be determined by the court to institute a lawful representative to administer the property in issue. Relatives, friends or any appropriate party upon determination by the court may be appointed for the said purpose. This same rule shall also be applicable when under the same circumstances the power conferred by the absentee expires.

Article 382. The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians. (182)

Article 383. In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court. (183a)

Articles 384, 385 & 386

by: Jomely Rose N. Ortiola

Title XIV. – ABSENCE

CHAPTER 2

DECLARATION OF ABSENCE

Art. 384. Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared. (184)

Art. 385. The following may ask for the declaration of absence:

(1) The spouse present;

(2) The heirs instituted in a will, who may present an authentic copy of the same;

(3) The relatives who may succeed by the law of intestacy;

(4) Those who may have over the property of the absentee some right subordinated to the condition of his death. (185)

Art. 386. The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. (186a)

Judicial Declaration of Absence

• Necessary for interested persons to be able to protect their rights, interests and benefits in connection with the person who has disappeared.
• Necessary to protect the interest of the absentee.
• Can be a sufficient cause for an involuntary judicial separation of property between spouses.

Who may seek judicial declaration of absentee:

• Testamentary Heirs – a person/persons instituted by the testator to succeed his or her properties
• Intestate Heirs – the legitimate and illegitimate relatives of the deceased, the spouse, and the collateral relatives
• Interested Party – those who have over the property of the absentee some right subordinated to the conditions of the absentee’s death

Jones vs. Hortiguela, 64 Phil. 179

FACTS:

Marciana married Arthur Jones. After 4 years of marriage, Arthur left the country and was never heard of thereafter. Marciana instituted a judicial declaration of absentee for her husband. Court declared Arthur as an absentee with the proviso that said judicial declaration of absencewould not take effect until six months after its publication in the official newspapers [Art. 186, Old Civil Code]. The court then 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.”

Marciana then married Felix Hortiguela. Marciana Escaño had died intestate. Her widower Felix Hortiguela was appointed judicial administrator of her entire estate, and Angelita Jones, her daughter by her first marriage, were declared her only heirs.

Angelita filed a motion alleging that she was the only heir of Marciana and that the marriage between Mariana and Felix is null and void. Since the said marriage is invalid, Felix was not entitled to share in usufruct.

ISSUE:  Whether or not the marriage of Mariana and Felix is null and void.

HELD: No. In accordance with the Civil Code, the absence of Marciana Escaño’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 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.

Article 387, 388 & 389

By Ed Pangilinan

CHAPTER 3 Administration of the Property of the Absentee

Article 387. An administrator of the absentee’s property shall be appointed in accordance with article 383.

Article 388.  The wife who is appointed as an administratrix of the husbands property cannot alienate or encumber the husband’s property, or that of the conjugal partnership, without judicial authority.

– While Article 388 refers only to the wife, a husband  likewise is prohibited from alienating the properties of the wife without her consent. Under the Family Code, the right of the spouses as to their respective exclusive properties shall be respected.

Article 389. The administration shall cease in any of the following cases: (1) When the absentee appears personally or by means of an agent; (2) When the death of the absentee is proved and his testate or intestate heirs appear; (3) When a third person appears, showing by a proper document that he has acquired the absentee’s property by purchase or other title. In these cases the administrator shall cease in the performance of his office, and the property shall be at the disposal of those who may have a right thereto. (190)

Article 390, 391 & 392

By: Kristine C. Ramos

CHAPTER 4 PRESUMPTION OF DEATH

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. (n)

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

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

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

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

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. (194)

Discussion:

Article 390 creates the presumption of death except for purposes of remarriage under article 41 of the Family Code, there is no need for filing a case to declare that one is presumptively dead while Article 391 describes situations where a person has been missing under dangerous circumstances.

The Required Period for one to be presumed dead is seven years except for the opening of succession. While the absence of ten years is mandated by law except when the person disappeared after the age of seventy-five years in which case an absence of five years is enough. In these cases, the person shall be presumed dead at the end of the seven-year period.

Article 393

By: Agusto S. Tasing Jr.

Article 393

• Proof of existence is required when all the following elements concur:

1. Known death of a person
2. Controversy as to the validity of a transaction or contract

• If some rights exist in favor of a deceased and such right is sought to be enforced, the individual seeking to enforce such right must prove that the right vested in favor of the deceased while the latter was still living.

Question:

What is the remedy available to a person enforcing a right in favor of a deceased if there is a controversy as to the validity of the contract of transaction?

Answer:

The remedy available to a person enforcing a right in favor of a deceased is to prove that such right was vested upon the deceased while the latter was still living. The person enforcing such right must offer proof of existence of the deceased and the transmittal of such right to the deceased.

Articles 394 & 395

By Jhane Unico

Article 394. Without prejudice to the provision of the preceding article, upon the opening of a succession to which an absentee is called, his share shall accrue to his coheirs, unless he has heirs, assigns, or a representative. They shall all, as the case may be, make an inventory of the property. (196a)

Article 395. The provisions of the preceding article are understood to be without prejudice to the action of petition for inheritance or other rights which are vested in the absentee, his representatives or successors in interest. These rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the Registry of the real estate which accrues to the coheirs, the circumstance of its being subject to the provisions of this article shall be stated. (197)

Article 396

By Rossville “Aeron” B. Violanta

Effect of Absence upon the Contingent Rights of the Absentee

ARTICLE 396. Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so long as the absentee does not appear, or while his representatives or successors do not bring the proper action.

APPROPRIATION OF FRUITS. Anyone who obtains the inheritance of the absentee in accordance with the law can make use or appropriate the fruits of the inheritance as long as they are in good faith. However, if the absentee appears or his or her representatives or successors already filed a claim in court, those who may have entered upon the inheritance cannot anymore make such appropriation.