Title XIV the last news, and five years in case the absentee has left a person in charge

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.
ABSENCE
Chapter 1 Kinds of absence, as follows:
PROVISIONAL MEASURES IN CASE OF ABSENCE
(a) Absence without administrator – the first part of the provision where only absence of two years
Art. 381. When a person disappears from his domicile, his whereabouts being unknown, and is needed.
without leaving an agent to administer his property, the judge, at the instance of an interested (b) Absence with administrator – the second part of provision where it will be five years before a
party, a relative, or a friend, may appoint a person to represent him in all that may be declaration can be made, for the reason that since there is a person in charge for his propert y, his
necessary. property is being well-taken cared.

This same rule shall be observed when under similar circumstances the power conferred by the Art. 385. The following may ask for the declaration of absence:
absentee has expired. (1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic copy of the same;
TAKE NOTE: This provision is not permanent and that in case a person is declared absent by the (3) The relatives who may succeed by the law of intestacy;
courts, another procedure will have to be followed. (4) Those who may have over the property of the absentee some right subordinated to the
condition of his death.
In case therefore of the disappearance of a person from his domicile, a representative may be
appointed to act in his behalf in the meantime. TAKE NOTE: The enumerated persons are presumptive heirs or have interests in the property of
the absentee hence; they are given the right to ask for a declaration of the latter’s absence.
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, Intestacy is the condition of the estate of a person who dies without having made a valid will or
etc., have been complied with. other binding declaration.

The petition shall be fi led with Regional Trial Court of the place where the absentee resided before Art. 386. The judicial declaration of absence shall not take effect until six months after its
his disappearance. publication in a newspaper of general circulation.

Stages of Absence PURPOSE: To enable those who may have heard of the absentee in the meantime to give their
(a) Provisional Absence (Art. 381) information to the parties or persons concerned, and if said absentee should reappear within such a
(b) Declaration of Absence (Art. 384) period, then the judicial declaration of his absence will not have any effect.
(c) Presumption of Death (Arts. 390, 391)
Art. 387. An administrator of the absentee’s property shall be appointed in accordance with
Art. 382. The appointment referred to in the preceding article having been made, the judge Article 383.
shall take the necessary measures to safeguard the rights and interests of the absentee and shall
specify the powers, obligations and remuneration of his representative, regulating them,
according to the circumstances, by the rules concerning guardians.
TAKE NOTE: Remunerations mean reward, recompense or salary. Art. 388. The wife who is appointed as an administratrix of the husband’s property cannot
This Article states what the judge must do in case of provisional appointments. alienate or encumber the husband’s property or that of the conjugal partnership, without
judicial authority.
Art. 383. In the appointment of a representative, the spouse present shall be preferred when
there is no legal separation. The wife here who is appointed administratrix because of the judicial declaration of her husband’s
absence must always obtain judicial permission or authority in order that:
If the absentee left no spouse, or if the spouse present is a minor, any competent person may be (a) She can alienate or encumber her husband’s property.
appointed by the court. (b) She can alienate or encumber the conjugal property.
Note that the spouse who is present is preferred, provided: TAKE NOTE:
(a) She is of age. Alienate in this provision it means the various methods of transferring property from one person to
(b) There is no legal separation between the spouses another.
Encumber it is a claim by a party other than the owner on a parcel of real estate or other property
TAKE NOTE: Judicial Appointment is essential to capacitate the wife to represent the absentee. right.

Art. 384. Two years having elapsed without any news about the absentee or since the receipt of Art. 389. The administration shall cease in any of the following cases:

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(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 EXCEPTIONS TO THE RULE:
absentee’s property by purchase or other title. 1. He cannot claim either fruits or rents of his property because the recipient is supposed to have
been a possessor in good faith; and
In these cases the administrator shall cease in the performance of his office, and the property 2. If his heirs acquire his property through Extraordinary Prescription. (Real property — 30 years;
shall be at the disposal of those who may have a right thereto. personal property — 8 years; counted from the time the heir is in possession in the concept of owner)

TAKE NOTE: If the death of the husband is proved, then the administration will cease and instead Art. 393. Whoever claims a right pertaining to a person whose existence is not recognized must
there will be the settlement of his estate, whether he had previously executed a will or not. prove that he was living at the time his existence was necessary in order to acquire said right.

Art. 390. After an absence of seven years, it being unknown whether or not the absentee still Example: X was presumed dead in 2002. If Y later alleges that he purchased property from X in 2003
lives, he shall be presumed dead for all purposes, except for those of succession. (when the existence of X was no longer recognized), Y has to prove that X was still alive in 2002.

The absentee shall not be presumed dead for the purpose of opening his succession till after an Art. 394. Without prejudice to the provision of the preceding article, upon the opening of a
absence of ten years. If he disappeared after the age of seventy -five years, an absence of five succession to which an absentee is called, his share shall accrue to his co-heirs, unless he has
years shall be sufficient in order that his succession may be opened. heirs, assigns, or a representative. They shall all, as the case may be, make an inventory of the
property.
Computation of the Period of Absence is from the date on which the last news concerning the
absentee is received. EXAMPLE 1: A man, 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 will get the share of X in
Art. 391. The following shall be presumed dead for all purposes, including the division of the the estate of Y? ANSWER: The share of X will accrue to S, unless the heirs of X , or the assigns or
estate among the heirs: representatives of X, will claim such property. If they do this, whoever gets the property that should
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who have gone to X must make an inventory of such property.
has not been heard of 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; EXAMPLE 2: If it turns out that the absentee-heir had already died ahead (a case of predecease) of
(3) A person who has been in danger of death under other circumstances and his existence has the deceased, said absentee- heir, if a voluntary heir, transmits no rights to his own heir.
not been known for four years.
Art. 395. The provisions of the preceding article are understood to be without prejudice to the
There are two kinds of absence, namely: action of petition for inheritance or other rights which are vested in the absentee, his
(a) Ordinary absence (Art. 390) - Where the disappearance of the absentee is under normal representative or successors in interest. These rights shall not be extinguished save by lapse of
circumstances, and without apparent danger. time fixed for prescription. In the record that is made in the Registry of the real estate which
(b) Qualified or extraordinary absence (Art. 391)- Where the disappearance was under extraordinary accrues to the co-heirs, the circumstance of its being subject to the provisions of this article
circumstances, or with apparent danger 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
Computation of the Period of Absence: absent, but X himself has a child R. R in the meantime got X ’s share. In default of R, the other heirs
(a) Ordinary Absence- on the last day of the period. or devisees, Y and Z, can have the land registered in their name. If X turns out to be alive, his share
(b) Qualified Absence- at the beginning of the period. can still be recovered from Y and Z, unless X loses the right
by prescription.
EXCEPTION TO THE RULE: If the vessel was not lost or missing but instead destroyed by fire and
washed ashore. The rule on preponderance of evidence applies to establish the fact of death .

TAKE NOTE: The presumption of death after the lapse of seven years or four years as the case
maybe is created by law, thus, there is no need any more for a judicial pronouncement to that Art. 396. Those who may have entered upon the inheritance shall appropriate the fruits received
effect. However, for purposes of opening up the estate of the absentee for succession, the absence 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.
of ten (10) years is required.
The right to the fruits is given to the person who was awarded the property in the inheritance
Art. 392. If the absentee appears, or without appearing his existence is proved, he shall recover proceedings as long as the person declared absent has not reappeared and as long as no action on the
his property in the condition in which it may be found, and the price of any property that may matter has been brought by the absentee’s representatives or successors in interest. The right to the
have been alienated or the property acquired therewith; but he cannot claim either fruits or fruits naturally ceases when either the absentee reappears or the proper action has been brought.
rents.

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 Provision Article 381 Article 384 Articles 390 and 391
ORDINARY ABSENCE:(1) An absence of
seven years, it being unknown whether
or not the absentee still lives, EXCEPT
for the purpose of succession (sucession
under this case is only open after 10
years so additional 3 years from the
absence of 7 years. ; and (2) If he
disappeared after the age of seventy-
five years, five years is sufficient in
order for his succession may be opened.

Declaration of absence can happen in two QUALIFIED ABSENCE: (1) A person on

When a person disappears from his domicile, his instances: (1) Two years have elapsed without board a vessel lost during a sea voyage,
When can the provision be whereabouts being unknown and without leaving an agent any news about the absentee or since the
or an aeroplane which is missing, who
applied? to administer his property, the judge may appoint to receipt of the last news; and (2) five years in
has not been heard of for four years
represent him in all that may be necessary. case the absentee has left a person in charge since the loss of the vessel or aeroplane,
of the administration of his property
EXCEPT, if the vessel was not lost or
missing but instead destroyed by fi re
and washed ashore.; (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.

For purposes other than marriage, judicial

declaration of presumptive death is no
longer necessary. This is so because the
The Court can appoint a person to represent the absentee The judicial declaration of absence shall not already presumes the death of the
Procedure in cases of: (1) The person disappears from his domicile take effect until six months after its absentee after the
without leaving an agent; or (2) The power conferred by publication in a newspaper of general lapse of a certain period. The presumption
the absentee has already expired circulation. is merely prima facie or disputable and
could be
rebutted by evidence that the absentee is
still alive.

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 The following may ask for the declaration of
Any interested party may petition the court for the absence: (1) The spouse present; (2) The heirs
appointment of a person to represent him in all that may instituted in a will, who may present an
be necessary. The mostly preferred in the appointment of authentic copy of the same; (3) The relatives
People involved in the process representative is the present spouse, provided: (a) She is who may succeed by the law of intestacy; (4)
of age; and (b) There is no legal separation between the Those who may have over the property of the
spouses absentee some right subordinated to the
condition of his death.

Important Information
The wife who is appointed as an adiministratix of the
husband's property cannot alienate or encumber the
husband's property, or that of the conjugal partnership
without judicial authority.

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.

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