Civ Rev 1 in Re Szatrow
Civ Rev 1 in Re Szatrow
Civ Rev 1 in Re Szatrow
Petitioner:
Consuelo Sors
DOCTRINE:
The foregoing facts pleaded in the petition were proved. The evidence further shows that
she and her husband did not acquire any property during their marriage and that his life
was not insured.
II. Issue
Whether or not the wife may ask the court to declare that her husband be presumed dead
because he is unhear from in seven years.
This presumption may arise and be invoked and made in a case, either in an action or in a
special proceeding, which is tried or heard by, and submitted for decision to, a competent
court. Independently of such an action or special proceeding, the presumption of death
cannot be invoked, nor can it be made the subject of an action or special proceeding. In this
The petition is for a declaration that the petitioner's husband is presumptively dead. But this
declaration, even if judicially made, would not improve the petitioner's situation, because
such a presumption is already established by law. A judicial pronouncement to that effect,
even if final and executory, would still be a prima facie presumption only. It is still
disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or
declaration, if it is the only question or matter involved in a case, or upon which a
competent court has to pass.
The Court should not waste its valuable time and be made to perform a superfluous and
meaningless act.
A petition for a declaration such as the one filed in this case may be made in collusion with
the other spouse. If that were the case, then a decree of divorce that cannot be obtained or
granted under the provisions of the Divorce Law (Act No. 2710) could easily be secured by
means of a judicial decree declaring a person unheard from in seven years to be
presumptively dead. This is another strong reason why a petition such as the one
presented in this case should not be countenanced and allowed. What cannot be obtained
directly under the provisions of Divorce Law could indirectly be secured under the
provisions of Rule 123, section 69 (x). Obviously, the latter must not be made to prevail
over the former.