G.R. No.

L-43701

March 6, 1937

In Re Estate of Jones v. Hortiguela

Topic: Subsequent marriage upon reappearance of absent spouse
Ponente: CONCEPCION, J.
Nature: Appeal from the CFI-Cebu.
Doctrine:
For the celebration of civil marriage, the law only requires that the former spouse has
been absent for 7 consecutive years at the time of the 2nd 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.
Facts:
-

Marciana Escao married Arthur W. Jones in the suburban catholic church of San
Nicolas, Province of Cebu on December 1914. Angelita Jones (P) was her daughter from
this union.

On January 10, 1918, Jones secured a passport to go abroad and thereafter nothing
was ever heard of him.

In October 1919, proceedings were institute in CFI-Maasin, Leyte, at the instance of

Escao, to have her husband judicially declared an absentee. On the 25th of said
month, the court issued declared Jones an absentee 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 official newspapers. Said order
directed the publication thereof in the Official Gazette and in the newspaper "El Ideal".

On April 23, 1921, the court issued another order for the taking effect of the declaration
of absence since publication was fulfilled.

On May 6, 1927, Felix Hortiguela (R) and Escao were married before the justice of the
peace of Malitbog, Leyte, and they signed the certificate of marriage.

As Marciana Escao had died intestate, her widower R was appointed judicial
administrator of her entire estate, and in an order issued on May 9, 1932, P and R, her
widower by her 2nd marriage, were declared her only heirs. R adjudicated a part of the
estate to himself in payment of his share of the conjugal properties and his usufructuary
right, and the remaining part to P. P was a minor at this time.

On May 3, 1934, the heiress P, then married to Ernesto Lardizabal, alleged that she was
the only heir of her mother, the deceased Escao, since there was never was a valid
marriage between her mother and R or that had such marriage been celebrated.

P filed that her mothers marriage to R be rendered void and to annul Rs partition of
properties be annulled since she is supposed to be the only universal heir.

Issue:
Whether or not Felix Hortiguela's alleged marriage to Marciana Escao was celebrated thus
rendering him as an heir to the latters estate.
Ruling:
Yes. Jones, the 1st husband, is lawfully considered to be presumed dead.
-

His 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
9 years elapsed. Said marriage with R is, therefore, valid and lawful.

Escao believed Jones to be dead when she contracted her 2nd marriage. P herself was
of the same belief, since she lived with her mother after the latter had married R, 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.

Dispositive:
For all the foregoing consideration 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 portion, and in so far as
said order of March 14, 1935, required the presentation of a new project of partition; denied the
appointment of Angelita Jones husband as administrator; affirms the order of May 9, 1932,
relative to declaration of heirs; and holds it unwarranted to make a finding as to whether or not
the properties of this intestate estate are paraphernal properties of the deceased Marciana
Escao reserving to the parties the right to discuss which are paraphernal and which are
conjugal properties. So ordered.