TITLE XIV
ABSENCE
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.
Note: Before an action can be brought on behalf of an absent person, the complaint must contain allegations sufficient to show that the provisions of the Civil Code regarding declaration of absence, etc., have been complied with.
Stages of absence
1. Provisional Absence (Article 381)
2. Declaration of Absence (Article 384)
3. Presumption of Death (Article 390, 391)
Where Petition is to be Filed
- The petition shall be filed with the Court of First Instance (now Regional Trial Court) of the place where the absentee resided before his disappearance.
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 RENUMERATION OF HIS REPRESENTATIVE, REGULATING THEM, ACCORDING TO THE CIRCUMSTANCES, BY THE RULES CONCERNING GUARDIANS.
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.
Necessity of Judicial Appointment
- appointment by the Court is essential to capacitate the wife to represent the absentee, otherwise she cannot, for example, dispose of conjugal property.
CHAPTER 2
DECLARATION OF ABSENCE
Article 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.
When absence May Be Judicially Declared
1. Absence without administrator
2. Absence with Administrator
The reason for the longer period of time for Absence with Administrator, is the greater probability that the estate or property is being well-taken cared of, if a manager or administrator had been left in charge of the property.
Article 383. 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.
Article 384. THE JUDICIAL DECLARATION OF ABSENCE SHALL NOT TAKE EFFECT UNTIL SIX MONTHS AFTER ITS PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION.
The period of six months is given to enable those who may have heard of the absentee in the meantime to give their information to the parties or persons concerned, and if said absentee should reappear within such period, then the judicial declaration of his absence will not have any effect at all.
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 ADMINISTRATIX OF THE HUSBAND’S PROPERTY CANNOT ALIENATE OR ENCUMBER THE HUSBAND’S PROPERTY OR THAT OF THE CONJUGAL PARTNERSHIP, WITHOUT JUDICIAL AUTHORITY.
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.
CHAPTER 4
PRESUMPTION OF DEATH
Article 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, EXCERPT 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.
Computation of the Period of Absence
- the computation of the seven-year period begins not fro the declaration of absence, nor from the publication in the Official Gazette, but from the date on which the last news concerning the absentee is received.
Article 391. THE FOLLOWING SHALL BE PRESUMED DEA FOR ALL PURPOSES, INCLUDING THE DIVISION OF THE ESTATE AMONG HEIRS:
(1) A PERSON ON BOARD A VESSEL LOST DURING A SEA VOYAGE, OR AN AEROPLANE WHICH IS MISSING, WHO HAS NOT BEEN HEARD FOR FOUR YEARS SINCE THE LOSS OF THE VESSEL OR AEROPLANE;
(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.
Two kinds of Absence
1. Ordinary Absence
Questions: In ordinary absence, when is death presumed to have occurred?
Answer: On the last day of the period
2. Qualified or Extraordinary Absence
Questions In the case of qualified or extraordinary absence, when is death presumed to have occured?
Answer: At the beginning of the period (because of the danger of death).
When the Article Cannot Apply
- Article 391 cannot apply if the vessel was not lost or missing but instead destroyed by fire and washed ashore. Moreover, if it is established as a fact that the missing person had jumped overboard and since then has not been heard from, the rule on presumption of death cannot apply. Instead, the rule on preponderance of evidence applies to establish the fact of death.
Article 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.
Recovery of Property by Absentee
- this gives the right to recover. This is because succession has not really taken place. However, extraordinary prescription (real property - 30 years; personal property - 8 years; counted from the time the heir is in possession in the concept of owner) may prevent recovery. In other words, the heir may have acquired the property not by succession but by prescription.
- Be it noted that the prescription required is EXTRAORDINARY PRESCRIPTION in view of the absence of just title.
Non- Return of Fruits or Rents
- the fruits or rents are not to be returned, since the recipient is supposed to have been a possessor in good faith.
CHAPTER 5
EFFECT OF ABSENCE UPON THE CONTINGENT RIGHTS OF THE ABSENTEE
Article 393. WHOEVER CLAIMS A RIGHT PERTAINING TO A PERSON WHOSE EXISTENCE IS NOT RECOGNIZED MUST PROVE THAT HE WAS LIVING AT THE TIME HIS EXISTENCE WAS NECESSARY IN ORDER TO ACQUIRE SAID RIGHT.
Example:
X was presumed dead in 2002. If Y later alleges that he purchased property from X in 2003 (when the existence of X was no longer recognized), Y has to prove that X was still alive in 2002.
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 CO-HEIRS, UNLESS HE HAS HEIRS, ASSIGNS, OR A REPRESENTATIVE. THEY SHALL ALL, AS THE CASE MAY BE, MAKE AN INVENTORY OF THE PROPERTY.
Effect if the Absentee is supposed to Inherit
1. Y died. His heirs are X and S. X, however, has been declared an absentee or, for that matter, he may have already been presumed dead under the law. Who shall get the share of X in the estate of Y?
Answer: The share of X will accrue to S, unless the heirs of X, of the assigns or representatives of X, will claim such property. If they do this, whoever gets the property that should have gone to X must make an inventory of such property.
2. If it turns out that the absentee-heir had already died ahead (a case of predecease) of a decease, said absentee-heir, if a voluntary heir, transmits no rights to his own heir.
Article 296. THE PROVISIONS OF THE PRECEDING ARTICLE ARE UNDERSTOOD TO BE WITHOUT PREJUDICE TO THE ACTION OF PETITIONER FOR INHERITANCE OR OTHER RIGHTS WHICH ARE VESTED IN THE ABSENTEE, HIS REPRESENTATIVE OR SUCCESSORS IN INTERESTS. 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 CO-HEIRS, THE CIRCUMSTANCE OF ITS BEING SUBJECT TO THE PROVISIONS OF THIS ARTICLE SHALL BE STATED.
Example: in his will, a testator gave a parcel of land to X, Y, and Z. When the testator died, X was absent, but X himself has a child R. R in the meantime got X’s share. In default of R, the other heirs or devisees, Y and Z, can have the land registered in their name. If X turns out to be alive, his share can still be recovered from Y and Z, unless X loses the right by prescription.
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 IN INTEREST DO NOT BRING THE PROPER ACTIONS.
Rights to Use the Fruits
- the right to the fruits is given to the person who was awarded the property in the inheritance proceedings as long as the person declared absent has not reappeared and as long as no action on the matter has been brought by the absentee’s representatives or successors in interest. The right to the fruits naturally ceases when either the absentee reappears or the proper action has been brought.
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