FIRST DIVISION

[G.R. No. 43701. March 6, 1937.]

In re Intestate of the deceased Marciana Escano. ANGELITA JONES ,

petitioner-appellant and appellee, vs . FELIX HORTIGUELA, as
administrator, widower and heir , oppositor-appellant and appellee.

Salvador E. Imperial for petitioner-appellant and appellee.

Vicente L. Faelnar, Hipolito Alo and Ciriaco S. Salazar for oppositor-appellant and
appellee.

SYLLABUS

1. DESCENT AND DISTRIBUTION; DECLARATION OF HEIRS; DECLARATION

OF ABSENCE OF FORMER HUSBAND OF PREDECESSOR OF INHERITANCE. — 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, 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 believes at the time
of the celebration of the marriage (section III, paragraph 2, General Orders, NO. 68).
2. ID.; ID.; ID. — In accordance with the foregoing legal provision, the absence
of M. E.'s former husband should be counted from January 10, 1918, the date on which
the last news concerning A. W. J. was received, and from said date to May 6, 1927,
more than nine years elapsed. Said marriage is, therefore, valid and lawful.
3. ID.; ID.; ID.; PRESUMPTION OF DEATH UNDER THE CODE OF CIVIL
PROCEDURE. — 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.
4. ID.; ID.; ID.; TRANSMISSION OF MARRIAGE CERTIFICATE TO MUNICIPAL
SECRETARY. — Section VIII of General Orders, No. 68, as amended, provides that the
person solemnizing the marriage must transmit the original of the marriage certi cate
to the municipal secretary, and failure to transmit such certi cate shall be ned not less
than twenty- ve and not more than fty dollars; but it does not provide that failure to
transmit such certificate to the municipal secretary annuls the marriage.
5. ID.; ID.; ID.; USUFRUCT OF THE SURVIVING SPOUSE. — Inasmuch as F. H.
was lawfully married to M. E. 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).
6. ID.; ID.; JURISDICTION. — The lower court had no jurisdiction to set aside
the order of January 10, 1933, approving the administrator's fees and the order of June
26th of said year, approving the partition and the nal account. Neither did it have
jurisdiction to order the presentation of another project of partition and nal account
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 on the ground that said orders became no nal, no appeal having ever been taken
therefrom. The court could not resume jurisdiction under section 113 of the Code of
Civil Procedure or under section 598 thereof because the above-cited sections refer to
the grounds other than those upon which A. J.'s motion is based.

DECISION

CONCEPCION , J : p

This 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 Escaño,
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 administrative fees in the sum of P10,000, and that of June 26, 1933,
approving the project of partition and the nal account; and (5) ordering the
presentation of another project of partition and final account.
As Marciana Escaño 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 rst marriage, and Felix Hortiguela, her
widower by her second marriage, were declared her only heirs. In a motion led with the
conformity of the guardian of the heiress Angelita Jones, Felix Hortiguela, as
administrator, prayed that his fees, as such, be xed 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 Escaño, a nal 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 of 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
Escaño de Corominas. The project of partition and nal account were approved in an
order of June 26, 1933, and the properties were turned over the respective grantees by
virtue thereof.
On May 3, 1934, the heiress Angelita Jones, then married to Ernesto Lardizabal,
led a motion alleging that she was the only heir of her mother, the deceased Marciana
Escaño; 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 presented 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 be 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 Hortiguela be declared null and void and that the petitioner be declared
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 the only universal heir of her deceased mother; and (e) that in case there was a valid
marriage Felix Hortiguela and Marciana Escaño, 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 a new partition of the properties be
made.
After Hortiguela's answer had been led 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 Escaño was celebrated.
It is a fact that in December, 1914, Marciana Escaño 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 instituted in the Court of First Instance of Maasin,
Leyte, at the instance of Marciana Escaño, 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 o cial newspapers. Said order
directed the publication thereof in the O cial Gazette and in the newspaper "El Ideal".
Pursuant thereto, said order was published in the O cial Gazette during the months 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 O cial Gazette and in "El Ideal." On May 6,
1927, Felix Hortiguela and Marciana Escaño 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 26, 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 Escaño is null and void. This court does nor 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 believes 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
Escaño 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 Escaño, 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
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 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 original of the marriage
certi cate to the municipal secretary, and failure to transmit such certi cate shall
be ned not less than twenty- ve and not more than fty dollars; but it does not
provide that failure to transmit such certi cate 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 certi cate 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 certi cate
not being one of said requisites.'
"In another case (U. S. vs. De Vera, 28 Phil., 105), the court said:
" 'Certi cates issued pursuant to the provisions of section 20 of the
Municipal Code by municipal secretaries, of marriages 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 Escaño 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 Escaño and was
not divorced from her at the time of her death, there is no doubt that he is entitled to
inherit the 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).
Therefore, 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 errors attributed to the administrator Felix Hortiguela in
Angelita Jones' motion and alleged therein as one of the grounds for asking for the
reopening of the proceedings, have not been the subject matter 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 fees as such administrator, he paid to Attorney
Faelnar the 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 other cases wherein Attorney Faelnar
has rendered his services, this court is of the opinion that the sum of P8,000 paid by the
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 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 bene t of the administration of the state of the deceased Escaño 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 nal account? Had the court jurisdiction to order the presentation of
another project of partition and nal account? These are the question raised by Felix
Hortiguela and this court is of the opinion that said orders having become nal on the
ground 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 sections refer to grounds other
than those upon which Angelita Jones' motion of May 3, 1934, is based.
For all the foregoing considerations 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 partition, and in so far as said order of March 14, 1935, required the
presentation of a new project of partition; denies the appointment of Angelita Jones'
husband as administrator; a rms the order of May 9, 1932, relative to declaration of
heirs; and holds it unwarranted to make a nding as to whether or not the properties of
this intestate estate are paraphernal properties of the deceased Marciana Escaño,
reserving to the parties the right to discuss which are paraphernal and which are
conjugal properties. So ordered.
Avanceña, C. J., Villa-Real, Abad Santos, Diaz and Laurel, JJ., concur.

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