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Republic of the Philippines

G.R. No. L-32026 January 16, 1986
REYNOSO REYES,petitioner,
HON, JOSE P. ALEJANDRO, in his capacity as Judge, Court of First Instance of Cavite,
Branch II, Cavite City, respondents.

This is an 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.
In a petition filed on October 25, 1969 Erlinda Reynoso prayed for the declaration of the
absence of her husband Roberto L. Reyes alleging that her husband had been absent from
their conjugal dwelling since April 1962 and since then had not been heard from and his
whereabouts unknown. The petition further alleged that her husband left no will nor any
property in his name nor any debts.
The evidence presented by petitioner in support of her petition established that she and
Roberto L. Reyes were married on March 20, 1960; that sometime in April 1962 her husband
left the conjugal home due to some misunderstanding over personal matters; that since then
petitioner has not received any news about the whereabouts of her husband; that they have
not acquired any properties during their marriage and that they have no outstanding
obligation in favor of anyone; that her only purpose in filing the petition is to establish the
absence of her husband, invoking the provisions of Rule 107 of the New Rules of Court and
Article 384 of the Civil Code.
After hearing the Court a quo dismissed the petition on the ground that since Roberto L.
Reyes left no properties there was no necessity to declare him judicially an absentee. It said:
A perusal of Rule 107 of the Rules of Court on absentees reveals that it is
based on the provisions of Title XIV of the New Civil Code on absence. And
the reason and purpose of the provisions of the New Civil Code on absence
(Arts. 381 to 396) are: (1) The interest of the person himself who has
disappeared; (2) The rights of third parties against the absentee, especially
those who have rights which would depend upon the death of the absentee;
and (3) The general interest of society which may require that property does
not remain abandoned without someone representing it and without an owner
(Civil Code by Francisco, Vol. 2, pp. 930- 931, 1953 Ed.).

It will thus be noted that said provisions of the New Civil Code are concerned
with absence only with reference to its effects on property (2 Manresa, 101102, Civil Code by Francisco, Vol. 2, p. 932. 1953 Ed.). Article 384, New Civil
Code, which is reproduced from Article 184 of the old Code, and relied upon
by herein petitioner, refers to the second period or stage of absence, and
specifically indicates the precise moment when the same may begin. Thus,
this article provides that after the lapse of two (2) years without any news
about the absentee or since the receipt of the last news, and five (5) years in
case the absentee has left a person in charge of the administration of his
property, his absence may be declared by the Court. The primordial purpose
of this declaration is to provide for an administrator of the property of the
absentee. It cannot be said that because of the comma (,) between the words
'news' and 'and', the two-year period mentioned in the first part of the law has
no reference to or bearing on the property of the absentee. Manresa states
that the only reason for the different periods is because in one case (2 years)
the absentee has not left a person in charge of the administration of his
property, and in the other case (5 years) the absentee has provided for his
absence by appointing an administrator of his property dispensing in a way
the giving of news about himself (2 Manresa, 127-128). It is worth to note, in
this connection, that the first period or stage of absence as covered by Article
381 of the New Civil Code provides for provisional measures-the
appointment by the Court of a person to represent the absentee' in all that
may be necessary'-when a mere presumption of his absence arises. It should
be noted that the appointment of a 'representative' of the absentee is for the
protection of the interest of the latter. This is clear from the provisions of
Article 382 which enjoins the judge to 'take the necessary measures to
safeguard the rights and interests of the absentee. ... Moreover, it is not
enough that a person is declared an absentee. The law (see Articles 381,
382 and 383) requires the judge to appoint a representative for the absentee
precisely to safeguard the property or interest of the latter. It is thus
imperative that the declaration of absence be for a specific purpose, and that
purpose can be no other than the protection of the interest or property of the
absentee. Castan, in his commentary, emphatically states that there must be
an immediate necessity for the representation of the absentee in some
specific urgent matters (Vol. 1, pp. 182-183).
The same observation and commentary can be said of the corresponding
complimenting provisions of Rule 107 of the Rules of Court, particularly
Sections 6 and 7 thereof which make it mandatory upon the Court to appoint
a representative, trustee or administrator who shall safeguard the rights and
interest of the absentee.
Considering that neither the petition alleges, nor the evidence shows, that
Roberto L. Reyes has any rights, interest or property in the Philippines, there
is no point in judicially declaring him an absentee.
We affirm the order of the lower Court dismissing the petition. As this Court said in Jones vs.
Hortiguela, 64 Phil. 197:
... 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 he 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). (On page 183).
The need to have a person judicially declared an absentee is when he has properties which
have to be taken cared of or administered by a representative appointed by the Court (Article
384, Civil Code); the spouse of the absentee is asking for separation of property (Article 191,
Civil Code) or his wife is asking the Court that the administration of an classes of property in
the marriage be transferred to her (Article 196, Civil Code). 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).
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.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova Gutierrez, Jr. and De la Fuente,
JJ., concur.


Republic of the Philippines
G.R. No. L-60101 August 31, 1983
JOSEPHINE LUCERO, respondents.
Valera, Cainglet & Dala Law Office for petitioner.
Jose R. Millares for private respondent.


Petition for review filed by the Eastern Shipping Lines, Inc. to set aside the decision of the
National Labor Relations Commission, which affirmed the judgment rendered by the National
Seamen Board, the dispositive portion of which reads as follows:
WHEREFORE, respondent is hereby ordered to pay complainant her
monthly allotments from March, 1980 up to the amount of P54,562.00 within
ten (10) days from receipt of this decision. Respondent is likewise further
ordered to pay complainant her future monthly allotment up to the arrival of
the M/V EASTERN MINICON in the port of Manila or after four (4) years
when the presumptive death established by law takes effect.
The material facts that gave rise to this petition are as follows: On October 31, 1979, Capt.
Julio J. Lucero, Jr. was appointed by petitioner Eastern Shipping Lines, Inc., Company for
short, as master/captain to its vessel M/V Eastern Minicon plying the HongkongManila route,
with the salary of P5,560.00 exclusive of ship board allowances and other benefits. Under
the contract, his employment was good for one (1) round trip only, i.e., the contract would
automatically terminate upon arrival of the vessel at the Port of Manila, unless renewed. It
was further agreed that part of the captain's salary, while abroad, should be paid to Mrs.
Josephine Lucero, his wife, in Manila.
On February 16, 1980, while the vessel was enroute from Hongkong to Manila where it was
expected to arrive on February 18, 1980, Capt. Lucero sent three (3) messages to the
Company's Manila office:
First Message: 1
February l6,1980 0700 GMT Via Intercom
Urgent Eastship Manila
Second Message: 2
February l6/80 1530 GMT VIA INTERCOM



Third Message: 3
FEBRUARY 16/80 2150 HRS


Acting on these radio messages, the Company, respondent below, took the following steps:
RESPONDENT informed of the grave situation, immediately reported the
matter to the Philippine Coast Guard for search and rescue operation and the
same was coordinated with the U.S. Air Force based at Clark Air Base.
Respondent also released radio messages to all vessels passing the
Hongkong/Manila route requesting them to be very cautious and vigilant for
possible survivors and to scan the area whether there are signs of debris
from the ill-fated vessel "EASTERN MINICON" which has foundered In the
meantime, two (2) vessels of the respondent were also dispatched to the
area last reported by the Master for search and rescue operation, but the
collective efforts of all parties concerned yielded negative results, (p. 79,
Subsequently, the Lloyds of London, insurer of the M/V Eastern Minicon through its
surveyors, confirmed the loss of the vessel. Thereafter, the Company paid the corresponding
death benefits to the heirs of the crew members, except respondent Josephine Lucero, who
refused to accept the same.
On July 16, 1980, Mrs. Lucerofiled a complaint with -the National Seamen Board, Board for
short, for payment of her accrued monthly allotment of P3,183.00, which the Company had
stopped since March 1980 and for continued payment of said allotments until the M/V
Minicon shall have returned to the port of Manila. She contended that the contract of
employment entered into by her husband with the Company was on a voyage-to-voyage
basis, and that the same was to terminate only upon the vessel's arrival in Manila.

Upon the other hand, the Company maintained that Mrs. Lucero was no longer entitled to
such allotments because: [a] the Lloyds of London had already confirmed the total loss of the
vessel and had in fact settled the company's insurance claim and [b] the Company, with the
approval of the Board, had likewise paid the corresponding death benefits to the heirs of the
other seamen The Company further invoked the provisions of Article 643 of the Code of
Commerce, to wit:
Art. 643. If the vessel and her cargo should be totally lost, by reason of
capture or wreck, all rights shall be extinguished, both as regards the crew to
demand any wages whatsoever, and as regards the ship agent to recover the
advances made.
xxx xxx xxx
On May 19, 1981, the Board rendered the aforecited judgment in favor of Mrs. Josephine
Lucero and against petitioner Company. The Board held that the presumption of death could
not be applied because the four-year period provided for by Article 391(l) of the Civil Code
had not yet expired; and that the payment of death benefits to the heirs of the other crew
'members was based upon a voluntary agreement entered into by and between the heirs and
the Company, and did not bind respondent Mrs. Lucero who was not a party thereto.
On appeal, the respondent National Labor Relations Conunission affirmed the said decision.
It held that:
Within the context of the foregoing circumstances, the only recourse is to
presume the vessel totally lost and its crew members dead. But in this
connection, the question that comes to the fore is: When will the presumption
arise? Article 391 of the Civil Code provides the answer, to wit:
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 aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or aeroplane;...
By the aforequoted law, it is quite clear that the person to be presumed dead
should first "not been heard of for four years since the loss of the vessel"
before he can be presumed dead for all purposes. Applied to Capt. LUCERO,
it is evidently premature to presume him dead as four years has not yet
expired. Thus, even in Judge Advocate General vs. Gonzales, et al., (CA) 48
O.G. 5329, the very case cited by the respondent herein, the court Id. in the
case of the missing soldier that although nothing was heard of him since 7
May 1942, the fact of his death is not presumed until seven years after 1942.
Since Capt. LUCERO cannot yet be presumed dead as demonstrated
hereinabove, it logically follows that as of now, he is presumed have It is of
no moment to Us that the vessel was conceded by the Lloyds of London to
have been totally lost which, in the first place, was admittedly merely based
on presumption as even the whereabouts of the vessel remains unknown.
Similarly, even the agreement, which formed the basis of the Decision of the
NSB ordering payment of death benefits to the heirs of some of the crew
must have been predicated upon a presumption of death of the crew

members concerned. Such circumstances do not suffice to establish the

actual death of Capt. LUCERO.
xxx xxx xxx
Indeed, by the terms of the appointment of Capt. LUCERO, his engagement
terminates upon the return of the vessel at the Port of Manila. He is
considered to be still working entitling his spouse to allotment until the vessel
returns or until it is officially declared totally lost, or until the presumption of
his death becomes effective in which case the burden of proving that he is
alive is shifted to his wife for purposes of continuing her allotment.
We are unable to agree with the reasoning and conclusion of the respondent NLRC.
It is undisputed that on February 16, 1980, the Company received three (3) radio messages
from Capt. Lucero on board the M/V Eastern Minicon the last of which, received at 9:50 p.m.
of that day, was a call for immediate assistance in view of the existing "danger": "sea water
was entering the hatch"; the vessel "was listing 50 to 60 degrees port," and they were
"preparing to abandon the ship any time.' After this message, nothing more has been heard
from the vessel or its crew until the present time.
There is thus enough evidence to show the circumstances attending the loss and
disappearance of the M/V Eastern Minicon and its crew. The foregoing facts, quite logically.
are sufficient to lead Us to a moral certainty that the vessel had sunk and that the persons
aboard had perished with it. upon this premise, the rule on presumption of death under
Article 391 (1) of the Civil Code must yield to the rule of preponderance of evidence. As this
Court said inJoaquin vs. Navarro 4 "Where there are facts, known or knowable, from which a
rational conclusion can be made, the presumption does not step in, and the rule of
preponderance of evidence controls."
Of similar import is the following pronouncement from American Jurisprudence: 5
Loss of Vessel. Where a vessel sets out on a voyage and neither the
vessel nor those who went in her are afterward heard of, the presumption
arises, after the utmost limit of time for her to have completed the voyage and
for news of her arrival at any commercial port of the world to have been
received, that the vessel has been lost and that all on board have perished.
The presumption of death in such cases does not rest on the fact alone that
the person in question has been absent and unheard from for a specific
length of time, but also on the fact that the vessel has not been heard front
The question, moreover, is not whether it is impossible that the person may
be alive, but whether the circumstances do not present so strong a
probability of his death that a court should act thereon. The presumption of
death from absence of tidings of the vessel on which the absentee sailed is
strengthened by proof of a storm to which the vessel probably was exposed.
The presumption is even stronger where it appears affirmatively that the
vessel was lost at sea, that nothing has been heard of a particular person
who sailed thereon, and that a sufficient time has elapsed to permit the
receipt of news of any possible survivors of the disaster.
In People vs. Ansang 6 where, in open sea, the appellant aboard a vinta ignited three homemade bombs and threw them at the boat occupied by the victims, and the said boat was later

washed ashore and the passengers thereof were never heard or seen again by anybody, this
Court convicted the appellant of multiple murder, holding that the victims were dead.

Similarly, in People vs. Sasota, 7 the claim of the appellants therein that there was no conclusive
evidence of death of the victim because his body was never found was overruled by this Court in
this wise:
In a case of murder or homicide, it is not necessary to recover the body or to
show where it can be found. 'Mere are cases like death at sea, where the
finding or recovery of the body is impossible. It is enough that the death and
the criminal agency be proven. There are even cases where said death and
the intervention of the criminal agency that caused it may be presumed or
established by circumstantial evidence.
Moreover, it may be remembered that in several treason cages decided by
this Court, where besides the act of treason the accused is held responsible
for the death of persons he had or tortured and later taken away, where the
victims were never later seen or heard from, it has been presumed that they
were lulled or otherwise criminally disposed of or liquidated by the accused
this, for the purpose of fixing the penalty.
If in the foregoing criminal cases, where the proof required for conviction must be beyond
reasonable doubt, the rule of presumption was not applied and the fact of death was deemed
established, with more reason is this Court justified in entering a finding of death. Indeed, We
cannot permit Article 391 to override, or be substituted for, the facts established in this case
which logically indicate to a moral certainty that Capt. Lucero died shortly after he had sent
his last radio message at 9:50 p.m. on February 16, 1980.
In view of the conclusion arrived at above, We deem it unnecessary to discuss the other
issued raised in this case, they being mere adjuncts to the principa issue already disposed
WHEREFORE, the decision of the NLRC subject of this petition is hereby set aside, and the
complaint of respondent Josephine Lucero dismissed. However, Mrs. Lucero is entitled to
death benefits. No costs.
Makasiar (Chairman), Concepcion, Jr., Guerrero and Gutierrez, Jr., JJ., concur.
Aquino, J., I concur. Mrs. Lucero is entitled to death benefits.
De Castro, J., and Abad Santos, J., are on leave.

1 Annex "1".
2 Annex "1-A".

3 Annex "1-B"
4 93 Phil. 257.
5 16 Am. Jr.,, 25-26.
6 93 Phil. 44.
7 91 Phil. 111.

Republic of the Philippines

G.R. No. 84250 July 20, 1992

HON. ADRIANO R. VILLAMOR, Presiding Judge, Branch XVI, Regional Trial Court, 8th
Judicial Region, Naval, Leyte, and DIOSDADO TOL, respondents.

Questioned in this action is the dismissal of a petition filed by Daya Maria Tol-Noquera for
appointment as administratrix of the property of the absentee Remigio Tol.
In Special Proceedings No. P-056, which was filed in December 1986, Daya Maria Tol
alleged that she was the acknowledged natural child of Remigio Tol, who had been missing
since 1984. She claimed that a certain Diosdado Tol had fraudulently secured a free patent
over Remigio's property and had obtained title thereto in his name. She was seeking the
administration of the absentee's estate in order that she could recover the said property.
The petition was opposed by Diosdado Tol, who argued that Daya Maria Tol was not an
acknowledged natural child of the absentee and that the property sought to be administered
was covered by an original certificate of title issued in his name.
On March 31, 1987, the trial court dismissed the petition on the ground that it was a collateral
attack on a Torrens title. The court also declared in effect that it was useless to appoint an
administrator in view of the claim of a third person that he was the owner of the absentee's

The petitioner's motion for reconsideration having been denied, she filed a notice of appeal
with this Court on June 4, 1984. However, inasmuch as only questions of law were involved,
we resolved to require the petitioner to seek review on certiorari under Rule 45 of the Rules
of Court within 15 days from notice.
In the petition now before us, it is argued that the original petition in the trial court was not
intended as a collateral attack on a Torrens title; hence, Art. 389 of the Civil Code 1 was not
The private respondent, on the other hand, contends that since the petitioner claims she is
an illegitimate child of Remigio Tol, she is prohibited under Art. 992 of the Civil Code 2 from
inheriting ab intestato from the relatives of her father.
The private respondent likewise questions the necessity of her appointment for the purpose
only of having the title annulled. He adds that in view of her allegations of fraud, she should
have sued for the annulment of the title within a period of one year, which had already
expired. Lastly, the decision of the trial court had already become final and executory
because 76 days had already elapsed from the date of receipt of the said decision on May
21, 1987, to the date the petition was filed before this Court on August 5, 1987.
A study of the record reveals that the lower court was rather hasty in dismissing the petition.
As we see it, the petition was not a collateral attack on a Torrens title. The petitioner did say
there was a need to appoint an administrator to prevent the property from being usurped, but
this did not amount to a collateral attack on the title. The alleged fraudulent issuance of title
was mentioned as a justification for her appointment as administrator. But there was nothing
in the petition to indicate that the petitioner would attack the title issued to Diosdado in the
same proceeding. In fact, the petitioner declared that whatever remedy she might choose
would be pursued in another venue, in a proceeding entirely distinct and separate from her
petition for appointment as administratrix.
Regarding the Torrens certificate of title to the disputed property which was presented to
defeat the petitioner's appointment, we feel that the position of trial court was rather
ambivalent. For while relying on such title to justify the dismissal of the petition, it suggested
at the same time that it could be attacked as long as this was not done in the proceeding
before it.
The private respondent's arguments that the petitioner cannot inherit ab intestato from the
legitimate parents of the absentee is immaterial to this case. Her disqualification as an heir to
her supposed grandparents does not inhibit her from petitioning for a declaration of absence
or to be appointed as an administratrix of the absentee's estate.
The relevant laws on the matter are found in the following provisions of the Civil Code:
Art. 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.

Art. 382. The appointment referred to in the preceding article having been
made, the judge shall take the necessary measures to safeguard the rights
and interest of the absentee and shall specify the powers, obligations and
remuneration of his representatives, regulating them according to the
circumstances, by the rules concerning guardians.
Art. 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.
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.
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
(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.
Art. 386. The judicial declaration of absence shall not take effect until six
months after its publication in a newspaper of general circulation.
It is not necessary that a declaration of absence be made in a proceeding separate from and
prior to a petition for administration. This was the ruling in Reyes
v. Alejandro, 3 reiterating Pejer v. Martinez. 4 In the latter case, the court declared that 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 could be combined and adjudicated in the same proceeding.
The purpose of the cited rules is the protection of the interests and property of the absentee,
not of the administrator. Thus, the question of whether the administrator may inherit the
property to be administered is not controlling. What is material is whether she is one of those
allowed by law to seek the declaration of absence of Remigio Tol and whether she is
competent to be appointed as administratrix of his estate.
The issue of whether or not the property titled to Diosdado Tol is really owned by him should
be resolved in another proceeding. The right of Daya Maria Tol to be appointed administratrix
cannot be denied outright by reason alone of such issue.
Even if it be assumed that the title obtained by Diosdado Tol is already indefeasible because
of the lapse of the one-year period for attacking it on the ground of fraud, there are still other
remedies available to one who is unjustly deprived on his property. One of these is a claim

for reconveyance, another a complaint for damages. 5 The petitioner can avail herself of such
remedies if she is appointed administratrix of the estate of the absentee.
Finally, we find that the appeal was perfected seasonably. Notice of appeal was filed on June
4, 1987, within the 15-day extension of the period to appeal as granted by this Court in its
resolution dated July 8, 1987.
WHEREFORE, the petition is GRANTED. This case is hereby REMANDED to the court of
origin for determination of the legal personality of Daya Maria Tol to petition the declaration of
Remigio Tol's absence and of her competence to be appointed as administratrix of his
Grio-Aquino, Medialdea and Bellosillo, JJ., concur.

1 Art. 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
2 Art. 992. An illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother; nor shall such
children or relatives inherit in the same manner from the illegitimate child.
3 141 SCRA 65.
4 88 Phil. 72.
5 Quiniano vs. Court of Appeals, 39 SCRA 221; Cabanos vs. Register of
Deeds of Laguna, 40 Phil. 620.