IN RE INTESTATE ESTATE OF THE DECEASED MARCIANA ESCANO. ANGELITA JONES, PETITIONER-APPELLANT AND APPELLEE, VS, FELIX HORTIGUELA, AS ADMINISTRATOR, WIDOWER AND HEIR, OPPOSITOR-AP…

This is 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 Escano, 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 administrator fees in the sum of P10,000, and
that of June 26, 1933, approving the project of partition and the final
account; and (5) ordering the presentation of another project of
partition and final account.

As Marciana Escano 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 first marriage, and Felix Hortiguela, her Widower by her second
marriage, were declared her only heirs. In a motion filed with the
conformity of the guardian of the heiress Angelita Jones, Felix
Hortiguela, as administrator, prayed that his fees, as such, be fixed
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 Escano, a final 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 Escano de Corominas.
The project of partition and final account were approved in an order of
June 26, 1933, and the properties were turned over to the respective
grantees by virtue thereof.

On May 3, 1934, the heiress Angelita Jones, then married to Ernesto
Lardizabal, filed a motion alleging that she was the only heir of her
mother, the deceased Marciana Escano; 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 represented 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 the only
universal heir of her deceased mother; and (e) that in case
there was a valid marriage between Felix Hortigiiela and Marciana
Escano, Hortigiiela 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 Hortigiiela’s answer had been filed 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 Hortigiiela’s alleged marriage to
Marciana Escano was celebrated.

It is a fact that in December, 1914, Marciana Escano 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 Escano, 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 official newspapers. Said
order directed the publication thereof in the Official Gazette and in
the newspaper “El Ideal”. Pursuant thereto, said order was published in
the Official 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 Official Gazette
and in. “El Ideal.” On May 6, 1927, Felix Hortiguela and Marciana
Escano 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 6,
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 Escanio is null and void. This court does not believe so.
For the purposes of the civil marriage law, this 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 Escano’s 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 Hortigiiela or Marciana Escafio, 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 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 certificate to the municipal
secretary, and failure to transmit such certificate shall be fined not
less than twenty-five and not more than fifty dollars; but it does not
provide that failure to transmit such certificate 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 certificate 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 certificate not
being one of said requisites.’

“In another case (U. S. vs. Be Vera, 28 Phil., 105), the court said;

” ‘Certificates issued pursuant to the provisions of section 20 of the
Municipal Code by municipal secretaries, of marriages recorded 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 Escafio 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
Escaiio and was not 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).

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 Hortigiiela 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 the other cases
wherein Attorney Faelnar has rendered his services, this court is of
the opinion that the sum of P8,000 paid by the 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 benefit of the
administration of the estate of the deceased Escano prior to the
controversy provoked by said heiress. As to the remainder of 2,000,
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
2,000 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 final account?
Had the court jurisdiction to order the presentation of another project
of partition and final account? These are the questions raised by Felix
Hortiguela and this court is of the opinion that said orders having
become final 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; affirms the order of May 9,
1932, relative to declaration of heirs; and holds it unwarranted to
make a nnding as to whether or not the properties of this intestate
estate are paraphernal properties of the deceased Marciana Escano,
reserving to the parties the right to discuss which are paraphernal and
which are conjugal properties. So ordered.

Avancena, C, J., Villa-Real, Abad Santos, Diaz, and Laurel, JJ., concur.