VOID MARRIAGES

G.R. No. L-5877 September 28, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ARTURO MENDOZA, defendant-appellant.

Nestor A. Andrada for appellant.

Office of the Solicitor General Pompeyo Diaz and Solicitor Felicisimo R. Rosete for
appellee.

PARAS, C.J.:

The defendant, Arturo Mendoza, has appealed from a judgment of the Court of First
Instance of Laguna, finding him guilty of the crime of bigamy and sentencing him to
imprisonment for an indeterminate term of from 6 months and 1 day to 6 years, with
costs.

The following facts are undisputed: On August 5, 1936, the appellant and Jovita de Asis
were married in Marikina, Rizal. On May 14, 1941, during the subsistence of the first
marriage, the appellant was married to Olga Lema in the City of Manila. On February 2,
1943, Jovita de Asis died. On August 19, 1949, the appellant contracted another
marriage with Carmencita Panlilio in Calamba, Laguna. This last marriage gave rise to
his prosecution for and conviction of the crime of bigamy.

The appellant contends that his marriage with Olga Lema on May 14, 1941 is null and
void and, therefore, non-existent, having been contracted while his first marriage with
Jovita de Asis August 5, 1936 was still in effect, and that his third marriage to
Carmencita Panlilio on August 19, 1949 cannot be the basis of a charge for bigamy
because it took place after the death of Jovita de Asis. The Solicitor General, however,
argues that, even assuming that appellant's second marriage to Olga Lema is void, he
is not exempt from criminal liability, in the absence of a previous judicial annulment of
said bigamous marriage; and the case of People vs. Cotas, 40 Off. Gaz., 3134, is cited.

The decision invoked by the Solicitor General, rendered by the Court of Appeals, is not
controlling. Said case is essentially different, because the defendant therein, Jose
Cotas, impeached the validity of his first marriage for lack of necessary formalities, and
the Court of Appeals found his factual contention to be without merit.

In the case at bar, it is admitted that appellant's second marriage with Olga Lema was
contracted during the existence of his first marriage with Jovita de Asis. Section 29 of
the marriage law (act 3613), in force at the time the appellant contracted his second
marriage in 1941, provides as follows:1âwphïl.nêt
 Illegal marriages. — Any marriage subsequently contracted by any person during
the lifetime of the first spouse of such person with any person other than such
first spouse shall be illegal and void from its performance, unless:

(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the
time of the second marriage without the spouse present having news of
the absentee being alive, or the absentee being generally considered as
dead and believed to be so by the spouse present at the time of
contracting such subsequent marriage, the marriage so contracted being
valid in either case until declared null and void by a competent court.

This statutory provision plainly makes a subsequent marriage contracted by any person
during the lifetime of his first spouse illegal and void from its performance, and no
judicial decree is necessary to establish its invalidity, as distinguished from mere
annulable marriages. There is here no pretence that appellant's second marriage with
Olga Lema was contracted in the belief that the first spouse, Jovita de Asis, has been
absent for seven consecutive years or generally considered as dead, so as to render
said marriage valid until declared null and void by a competent court.1âwphïl.nêt

Wherefore, the appealed judgment is reversed and the defendant-appellant acquitted,

with costs de officio so ordered.

G.R. No. L-10016 February 28, 1957

THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,

vs.
PROCESO S. ARAGON, defendant-appellant.

Office of the Solicitor General Ambrosio Padilla and Solicitor Adolfo Brillantes for
appellee.
Prospero V. Manuel, Fernando Moncada and Antonio Abad Tornis for defendant and
appellant.

LABRADOR, J.:

Appeal from a judgment of the Court of First Instance of Cebu finding appellant guilty of
bigamy. The facts are not disputed and, as found by the trial court, are as follows:

On September 28, 1925, the accused, under the name of Proceso Rosima,
contracted marriage with a certain Maria Gorrea in the Philippine Independent
Church in Cebu (Exhibits "1" and "1-A"). While his marriage with Maria Gorrea
was subsisting, the accused under the name of Proceso Aragon, contracted a
canonical marriage with Maria Faicol on August 27, 1934, in the Santa Teresita
Church in Iloilo City.
 The sponsors of the accused and Maria Faicol were Eulogio Giroy, who was then
an employee of the Office of the Municipal Treasurer of Iloilo, and a certain
Emilio Tomesa, a clerk in the said office (Exhibit "A" and testimonies of Eulogio
Giroy and complainant Maria Faicol). After the said marriage, the accused and
Maria Faicol established residence in Iloilo. As the accused was then a traveling
salesman, he commuted between Iloilo where he maintained Maria Faicol, and
Cebu where he maintained his first wife, Maria Gorrea died in Cebu City on
August 5, 1939 (Exhibit "2"). After Maria Gorrea's death, and seeing that the
coast was dear in Cebu, the accused brought Maria Faicol to Cebu City in 1940,
where she worked as a teacher-nurse.

It would seem that the accused and Maria Faicol did not live a happy marital life
in Cebu, for it appears that in 1949 and 1950, Maria Faicol suffered injuries to her
eyes because of physical maltreatment in the hands of the accused. On January
22, 1953, the accused sent Maria Faicol to Iloilo, allegedly for the purpose of
undergoing treatment of her eyesight. During her absence, the accused
contracted a third marriage with a certain Jesusa C. Maglasang on October 3,
1953, in Sibonga, Cebu. (See Exhibits "C", "D", "E" and "F")

The accused admitted having contracted marriage with Jesusa C. Maglasangin

Sibonga, Cebu, on October 3, 1953, Although the accused made an attempt to
deny his previous marriage with Maria Faicol, the Court, however, believes that
the attempt is futile for the fact of the said second marriage was fully established
not only by the certificate of the said marriage, but also by the testimony of Maria
Faicol and of Eulogio Giroy, one of the sponsors of the wedding, and the
identification of the accused made by Maria Faicol. (See Exhibits "A" and "B";
t.s.n. pp. 32-33, 40, 41, hearing of April 27, 1954).

The Court of First Instance of Cebu held that even in the absence of an express
provision in Act No. 3613 authorizing the filing of an action for judicial declaration of
nullity of a marriage void ab initio, defendant could not legally contract marriage with
Jesusa C. Maglasang without the dissolution of his marriage to Maria Faicol, either by
the death of the latter or by the judicial declaration of the nullity of such marriage, at the
instance of the latter. Authorities given for this ruling are 5 Viada, 5th edition, 651; 35
American Jurisprudence, Marriage, Sec. 46, p. 212; Bickford vs. Bickford, 74 N. H. 466,
69 A. 579.

Appellant in this Court relies on the case of People vs. Mendoza, (95 Phil., 845; 50 Off.
Gaz., [10] 4767). In this case the majority of this Court declared:

The statutory provision (section 29 of the Marriage Law or Act No. 3613) plainly
makes a subsequent marriage contracted by any person during the lifetime of his
first spouse illegal and void from its performance, and no judicial decree is
necessary to establish its invalidity, as distinguished from mere annullable
marriages. There is here no pretense that appellant's second marriage with Olga
Lema was contracted in the belief that the first spouse, Jovita de Asis, had been
 absent for seven consecutive years or generally considered as dead, so as to
render said marriage valid until declared null and void by a subsequent court.

We are of the very weighty reasons by Justice Alex Reyes in the dissent in the case
above-quoted But this weighty reasons notwithstanding, the very fundamental principle
of strict construction of penal laws in favor of the accused, which principle we may not
ignore, seems to justify our stand in the above-cited case of People vs. Mendoza. Our
Revised Penal Code is of recent enactment and had the rule enunciated in Spain and in
America requiring judicial declaration of nullity of ab initio void marriages been within the
contemplation of the legislature, an express provision to that effect would or should
have been inserted in the law. In its absence, we are bound by said rule of strict
interpretation already adverted to.

It is to be noted that the action was instituted upon complaint of the second wife, whose
marriage with the appellant was not renewed after the death of the first wife and before
the third marriage was entered into. Hence, the last marriage was a valid one and
appellant's prosecution for contracting this marriage can not prosper.

For the foregoing considerations, the judgment appealed from is hereby reversed and
the defendant-appellant acquitted, with costs de oficio, without prejudice to his
prosecution for having contracted the second bigamous marriage. So ordered.

MARRIAGE LAW; NULL AND VOID MARRIAGES; JUDICIAL DECREE TO

ESTABLISH INVALIDITY, NOT NECESSARY.—A subsequent marriage contracted by
any person during the lifetime of his first spouse is illegal and void from its performance,
and no judicial decree is necessary to establish its invalidity as distinguished from mere
annulable marriages. (People vs. Mendoza, L-5877, September 28, 1954.)

G.R. No. L-43905 May 30, 1983

SERAFIA G. TOLENTINO, petitioner,

vs.
HON. EDGARDO L. PARAS, MARIA CLEMENTE and THE LOCAL CIVIL
REGISTRAR OF PAOMBONG, BULACAN, respondents.

Amelita G. Tolentino for petitioner.

Hermin E. Arceo for Maria Clemente.

The Solicitor General for respondents.

MELENCIO-HERRERA, J.:

The reversal of respondent Court's Order, dismissing petitioner's suit for her
"declaration ... as the lawful surviving spouse of deceased Amado Tolentino and the
correction of the death certificate of the same", is sought in this Petition for Review on
Certiorari.

The records disclose that Amado Tolentino had contracted a second marriage with
private respondent herein, Maria Clemente, at Paombong, Bulacan, on November 1,
1948 (Annex "C", Petition), while his marriage with petitioner, Serafia G. Tolentino,
celebrated on July 31, 1943, was still subsisting (Annex "A", Petition).

Petitioner charged Amado with Bigamy in Criminal Case No. 2768 of the Court of First
Instance of Bulacan, Branch II, which Court, upon Amado's plea of guilty, sentenced
him to suffer the corresponding penalty. After Amado had served the prison sentence
imposed on him, he continued to live with private respondent until his death on July 25,
1974. His death certificate carried the entry "Name of Surviving Spouse — Maria
Clemente."

In Special Proceedings No. 1587-M for Correction of Entry, petitioner sought to correct
the name of the surviving spouse in the death certificate from "Maria Clemente" to
"Serafia G. Tolentino", her name. The lower Court dismissed the petition "for lack of the
proper requisites under the law" and indicated the need for a more detailed proceeding,

Conformably thereto, petitioner filed the case below against private respondent and the
Local Civil Registrar of Paombong, Bulacan, for her declaration as the lawful surviving
spouse, and the correction of the death certificate of Amado. In an Order, dated October
21, 1976, respondent Court, upon private respondent's instance, dismissed the case,
stating:

The Motion to Dismiss filed by the defendants in this case, thru counsel
Atty. Hernan E. Arceo, for the reasons therein mentioned, is hereby
GRANTED. Further: (1) the correction of the entry in the Office of the
Local Civil Registrar is not the proper remedy because the issue involved
is marital relationship; (2) the Court has not acquired proper jurisdiction
because as prescribed under Art. 108, read together with Art. 412 of the
Civil Code — publication is needed in a case like this, and up to now,
there has been no such publication; and (3) in a sense, the subject matter
of this case has been aptly discussed in Special Proceeding No. 1587-M,
which this Court has already dismissed, for lack of the proper requisites
under the law.

In view of the above dismissal, all other motions in this case are hereby
considered MOOT and ACADEMIC.

SO ORDERED. 1

Thus, petitioner's present recourse mainly challenging the grounds relied upon by
respondent Court in ordering dismissal.
We rule for petitioner.

First, for the remedy. Although petitioner's ultimate objective is the correction of entry
contemplated in Article 412 of the Civil Code and Rule 108 of the Rules of Court, she
initially seeks a judicial declaration that she is the lawful surviving spouse of the
deceased, Amado, in order to lay the basis for the correction of the entry in the death
certificate of said deceased. The suit below is a proper remedy. It is of an adversary
character as contrasted to a mere summary proceeding. A claim of right is asserted
against one who has an interest in contesting it. Private respondent, as the individual
most affected; is a party defendant, and has appeared to contest the petition and
defend her interests. The Local Civil Registrar is also a party defendant. The publication
required by the Court below pursuant to Rule 108 of the Rules of Court is not absolutely
necessary for no other parties are involved. After all, publication is required to bar
indifferently all who might be minded to make an objection of any sort against the right
sought to be established. 2 Besides, even assuming that this is a proceeding under Rule
108, it was the Court that was caned upon to order the publication, 3 but it did not. in the
ultimate analysis, Courts are not concerned so much with the form of actions as with
their substance. 4

Second, for the merits. Considering that Amado, upon his own plea, was convicted for
Bigamy, that sentence furnishes the necessary proof of the marital status of petitioner
and the deceased. There is no better proof of marriage than the admission by the
accused of the existence of such marriage. 5 The second marriage that he contracted
with private respondent during the lifetime of his first spouse is null and void from the
beginning and of no force and effect. 6 No judicial decree is necessary to establish the
invalidity of a void marriage. 7 It can be safely concluded, then, without need of further
proof nor remand to the Court below, that private respondent is not the surviving spouse
of the deceased Amado, but petitioner. Rectification of the erroneous entry in the
records of the Local Civil Registrar may, therefore, be validly made.

Having arrived at the foregoing conclusion, the other issues raised need no longer be
discussed.

In fine, since there is no question regarding the invalidity of Amado's second marriage
with private respondent and that the entry made in the corresponding local register is
thereby rendered false, it may be corrected. 8 While document such as death and birth
certificates, are public and entries therein are presumed to be correct, such presumption
is merely disputable and will have to yield to more positive evidence establishing their
inaccuracy. 9

WHEREFORE, the Order, dated October 21, 1975, of respondent Court is hereby set
aside and petitioner, Serafia G. Tolentino, hereby declared the surviving spouse of the
deceased Amado Tolentino. Let the corresponding correction be made in the latter's
death certificate in the records of the Local Civil Registrar of Paombong, Bulacan.

No costs.
 Notes.—A court cannot order the correction of the civil status of a person as appearing
in the civil registry in a petition to correct entries in the civil registry. (Tan vs. Republic, 102
SCRA 667.)

Certificate of live birth or delayed registration of birth of a child is only prima facie, not
a conclusive evidence. (People vs. Villar, 105 SCRA 797.)

Persons dwelling together in apparent matrimony are presumed, in the absence of any
counter-presumption or evidence special to the case, to be in fact married. (Perido vs.
Perido, 63 SCRA 97.)

A marriage contract is not a public document of recognition. (Lim vs. Court of

Appeals, 65 SCRA 160.)

G.R. No. L-53703 August 19, 1986

LILIA OLIVA WIEGEL, petitioner,

vs.
THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the Juvenile and
Domestic Relations Court of Caloocan City) and KARL HEINZ
WIEGEL, respondents.

Dapucanta, Dulay & Associates for petitioner.

Siguion Reyna, Montecillo and Ongsiako Law Office for private respondent.

PARAS, J.:

In an action (Family Case No. 483) filed before the erstwhile Juvenile and Domestic
Relations Court of Caloocan City, herein respondent Karl Heinz Wiegel (plaintiff therein)
asked for the declaration of Nullity of his marriage (celebrated on July, 1978 at the Holy
Catholic Apostolic Christian Church Branch in Makati, Metro Manila) with herein
petitioner Lilia Oliva Wiegel (Lilia, for short, and defendant therein) on the ground of
Lilia's previous existing marriage to one Eduardo A. Maxion, the ceremony having been
performed on June 25, 1972 at our Lady of Lourdes Church in Quezon City. Lilia, while
admitting the existence of said prior subsisting marriage claimed that said marriage was
null and void, she and the first husband Eduardo A. Maxion having been allegedly
forced to enter said marital union. In the pre-trial that ensued, the issue agreed upon by
both parties was the status of the first marriage (assuming the presence of force exerted
against both parties): was said prior marriage void or was it merely voidable?
Contesting the validity of the pre-trial order, Lilia asked the respondent court for an
opportunity to present evidence-
(1) that the first marriage was vitiated by force exercised upon both her and the first
husband; and

(2) that the first husband was at the time of the marriage in 1972 already married
to someone else.

Respondent judge ruled against the presentation of evidence because the existence of
force exerted on both parties of the first marriage had already been agreed upon.
Hence, the present petition for certiorari assailing the following Orders of therespondent
Judge-

(1) the Order dated March 17, 1980 in which the parties were compelled to submit the
case for resolution based on "agreed facts;" and

(2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present
evidence in her favor.

We find the petition devoid of merit.

There is no need for petitioner to prove that her first marriage was vitiated by force
committed against both parties because assuming this to be so, the marriage will not be
void but merely viodable (Art. 85, Civil Code), and therefore valid until annulled. Since
no annulment has yet been made, it is clear that when she married respondent she was
still validly married to her first husband, consequently, her marriage to respondent is
VOID (Art. 80, Civil Code).

There is likewise no need of introducing evidence about the existing prior marriage of
her first husband at the time they married each other, for then such a marriage though
void still needs according to this Court a judicial declaration 1 of such fact and for all
legal intents and purposes she would still be regarded as a married woman at the time
she contracted her marriage with respondent Karl Heinz Wiegel); accordingly, the
marriage of petitioner and respondent would be regarded VOID under the law.

WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orders
complained of are hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

Civil Law; Persons and Family Relations; Marriage; Nullity of marriage; Proof that
first marriage was vitiated by force, not necessary in an action for a declaration of nullity
of marriage filed by the second husband; Reason.—There is no need for petitioner to
prove that her first marriage was vitiated by force committed against both parties because
assuming this to be so, the marriage will not be void but merely voidable (Art. 85, Civil
Code), and therefore valid until annulled. Since no annulment has yet been made, it is
clear that when she married respondent she was still validly married to her first husband,
consequently, her marriage to respondent is VOID (Art. 80, Civil Code).
 Same; Same; Same; Same; Same; Introducing evidence about existing prior
marriage, not necessary as the first marriage though void, still needs a judicial declaration
of such fact; Woman’s marriage to second husband void; Case at bar.—There is likewise
no need of introducing evidence about the existing prior marriage of her first husband at
the time they married each other, for then such a marriage though void still needs
according to this Court a judicial declaration of such fact and for all legal intents and
purposes she would still be regarded as a married woman at the time she contracted her
marriage with respondent Karl Heinz Wiegel); accordingly, the marriage of petitioner and
respondent would be regarded VOID under the law.

G.R. No. L-53642 April 15, 1988

LEONILO C. DONATO, petitioners,

vs.
HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF
MANIIA, BRANCH XXXII HON. JOSE FLAMINIANO, CITY FISCAL OF MANILA; PAZ
B. ABAYAN, respondents.

Leopoldo P. Dela Rosa for petitioner.

Emiterio C. Manibog for private respondent.

City Fiscal of Manila for public respondent.

GANCAYCO, J.:

In this petition for certiorari and prohibition with preliminary injunction, the question for
the resolution of the Court is whether or not a criminal case for bigamy pending before
the Court of First Itance of Manila should be suspended in view of a civil case for
annulment of marriage pending before the Juvenile and Domestic Relations Court on
the ground that the latter constitutes a prejudicial question. The respondent judge ruled
in the negative. We sustain him.

The pertinent facts as set forth in the records follow. On January 23, 1979, the City
Fiscal of Manila acting thru Assistant City Fiscal Amado N. Cantor filed an information
for bigamy against herein petitioner, Leonilo C. Donato with the Court of First Instance
of Manila, docketed as Criminal Case No. 43554 and assigned to Branch XXXII of said
court. The information was filed based on the complaint of private respondent Paz B.
Abayan.

On September 28, 1979, before the petitioner's arraignment, private respondent filed
with the Juvenile and Domestic Relations Court of Manila a civil action for declaration of
nullity of her marriage with petitioner contracted on September 26, 1978, which action
was docketed as Civil Case No. E-02627. Said civil case was based on the ground that
private respondent consented to entering into the marriage, which was petitioner
Donato's second one, since she had no previous knowledge that petitioner was already
married to a certain Rosalinda R. Maluping on June 30, 1978. Petitioner Donato's
answer in the civil case for nullity interposed the defense that his second marriage was
void since it was solemnized without a marriage license and that force, violence,
intimidation and undue influence were employed by private respondent to obtain
petitioner's consent to the marriage. Prior to the solemnization of the subsequent or
second marriage, petitioner and private respondent had lived together and deported
themselves as husband and wife without the benefit of wedlock for a period of at least
five years as evidenced by a joint affidavit executed by them on September 26, 1978,
for which reason, the requisite marriage license was dispensed with pursuant to Article
76 of the New Civil Code pertaining to marriages of exceptional character.

Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner
filed a motion to suspend the proceedings of said case contending that Civil Case No.
E-02627 seeking the annulment of his second marriage filed by private respondent
raises a prejudicial question which must first be determined or decided before the
criminal case can proceed.

In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend
the proceedings in Criminal Case No. 43554 for bigamy. Respondent judge's basis for
denial is the ruling laid down in the case of Landicho vs. Relova. 1 The order further
directed that the proceedings in the criminal case can proceed as scheduled.

A motion for reconsideration was flied by herein petitioner thru counsel citing as one of
his grounds for suspension of proceedings the ruling laid down by this Court in the case
of De la Cruz vs. Ejercito 2 which was a much later case than that cited by respondent
judge in his order of denial.

The motion for reconsideration of the said order was likewise denied in an order dated
April 14, 1980, for lack of merit. Hence, the present petition for certiorari and prohibition
with preliminary injunction.

A prejudicial question has been defined to be one which arises in a case, the resolution
of which question is a logical antecedent of the issue involved in said case, and the
cognizance of which pertains to another tribunal.3 It is one based on a fact distinct and
separate from the crime but so intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal action, it must appear not
only that said case involves facts intimately related to those upon which the criminal
prosecution would be based but also that in the resolution of the issue or issues raised
in the civil case, the guilt or innocence of the accused would necessarily be
determined. 4 A prejudicial question usually comes into play in a situation where a civil
action and a criminal action may proceed, because howsoever the issue raised in the
civil action is resolved would be determinative juris et de jure of the guilt or innocence of
the accused in a criminal case.5
The requisites of a prejudicial question do not obtain in the case at bar. It must be noted
that the issue before the Juvenile and Domestic Relations Court touching upon the
nullity of the second marriage is not determinative of petitioner Donato's guilt or
innocence in the crime of bigamy. Furthermore, it was petitioner's second wife, the
herein private respondent Paz B. Abayan who filed the complaint for annulment of the
second marriage on the ground that her consent was obtained through deceit.

Petitioner Donato raised the argument that the second marriage should have been
declared null and void on the ground of force, threats and intimidation allegedly
employed against him by private respondent only sometime later when he was required
to answer the civil action for anulment of the second marriage. The doctrine elucidated
upon by the case of Landicho vs. Relova 6 may be applied to the present case. Said
case states that:

The mere fact that there are actions to annul the marriages entered into by
the accused in a bigamy case does not mean that "prejudicial questions"
are automatically raised in civil actions as to warrant the suspension of the
case. In order that the case of annulment of marriage be considered a
prejudicial question to the bigamy case against the accused, it must be
shown that the petitioner's consent to such marriage must be the one that
was obtained by means of duress, force and intimidation to show that his
act in the second marriage must be involuntary and cannot be the basis of
his conviction for the crime of bigamy. The situation in the present case is
markedly different. At the time the petitioner was indicted for bigamy on
February 27, 1963, the fact that two marriage ceremonies had been
contracted appeared to be indisputable. And it was the second spouse,
not the petitioner who filed the action for nullity on the ground of force,
threats and intimidation. And it was only on June 15, 1963, that petitioner,
as defendant in the civil action, filed a third-party complaint against the
first spouse alleging that his marriage with her should be declared null and
void on the ground of force, threats and intimidation. Assuming that the
first marriage was null and void on the ground alleged by petitioner, the
fact would not be material to the outcome of the case. Parties to the
marriage should not be permitted to judge for themselves its nullity, for the
same must be submitted to the judgment of the competent courts and only
when the nullity of the marriage is so declared can it be held as void, and
so long as there is no such declaration the presumption is that the
marriage exists. Therefore, he who contracts a second marriage before
the judicial declaration of nullity of the first marriage assumes the risk of
being prosecuted for bigamy. The lower court therefore, has not abused
much less gravely abused, its discretion in failing to suspend the hearing
as sought by petitioner.

In the case at bar, petitioner has not even sufficiently shown that his consent to the
second marriage has been obtained by the use of threats, force and intimidation.
Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs.
Ejercito is a later case and as such it should be the one applied to the case at bar. We
cannot agree. The situation in the case at bar is markedly different. In the aforecited
case it was accused Milagros dela Cruz who was charged with bigamy for having
contracted a second marriage while a previous one existed. Likewise, Milagros dela
Cruz was also the one who filed an action for annulment on the ground of duress, as
contra-distinguished from the present case wherein it was private respondent Paz B.
Abayan, petitioner's second wife, who filed a complaint for annulment of the second
marriage on the ground that her consent was obtained through deceit since she was not
aware that petitioner's marriage was still subsisting. Moreover, in De la Cruz, a
judgment was already rendered in the civil case that the second marriage of De la Cruz
was null and void, thus determinative of the guilt or innocence of the accused in the
criminal case. In the present case, there is as yet no such judgment in the civil case.

Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot
apply the rule on prejudicial questions since a case for annulment of marriage can be
considered as a prejudicial question to the bigamy case against the accused only if it is
proved that the petitioner's consent to such marriage was obtained by means of duress,
violence and intimidation in order to establish that his act in the subsequent marriage
was an involuntary one and as such the same cannot be the basis for conviction. The
preceding elements do not exist in the case at bar.

Obviously, petitioner merely raised the issue of prejudicial question to evade the
prosecution of the criminal case. The records reveal that prior to petitioner's second
marriage on September 26, 1978, he had been living with private respondent Paz B.
Abayan as husband and wife for more than five years without the benefit of marriage.
Thus, petitioner's averments that his consent was obtained by private respondent
through force, violence, intimidation and undue influence in entering a subsequent
marriage is belled by the fact that both petitioner and private respondent executed an
affidavit which stated that they had lived together as husband and wife without benefit of
marriage for five years, one month and one day until their marital union was formally
ratified by the second marriage and that it was private respondent who eventually filed
the civil action for nullity.

Another event which militates against petitioner's contentions is the fact hat it was only
when Civil Case No. E-02627 was filed on September 28, 1979, or more than the lapse
of one year from the solemnization of the second marriage that petitioner came up with
the story that his consent to the marriage was secured through the use of force,
violence, intimidation and undue influence. Petitioner also continued to live with private
respondent until November 1978, when the latter left their abode upon learning that
Leonilo Donato was already previously married.

In the light of the preceding factual circumstances, it can be seen that the respondent
Judge did not err in his earlier order. There is no pivotal issue that must be pre-
emptively resolved in Civil Case No. E-02627 before proceedings in the criminal action
for bigamy can be undertaken.
Accordingly, there being no prejudicial question shown to exit the order of denial issued
by the respondent judge dated April 14, 1980 should be sustained.

WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for
lack of merit. We make no pronouncement as to costs.

SO ORDERED.

Note.—A judicial question is one based on a fact distinct and separate from the crime
but so intimately connected with it that it determines the guilt or innocence of the
accused, and for it to suspend the criminal action, it must appear not only that said case
involves facts intimately related to those upon which the criminal prosecution would be
based but also that in the resolution of the issue or issues raised in the civil case, the
guilt or innocence of the accused would necessarily be determined. (Librodo vs.
Coscolluela, Jr., 116 SCRA 303.)

A.M. No. 2349 July 3, 1992

DOROTHY B. TERRE, complainant,

vs.
ATTY. JORDAN TERRE, respondent.

PER CURIAM:

In a sworn complaint filed with this Court on 24 December 1981, complainant Dorothy
B. Terre charged respondent Jordan Terre, a member of the Philippine Bar with "grossly
immoral conduct," consisting of contracting a second marriage and living with another
woman other than complainant, while his prior marriage with complainant remained
subsisting.

The Court resolved to require respondent to answer the complaint. 1 Respondent

successfully evaded five (5) attempts to serve a copy of the Court's Resolution and of
the complaint by moving from one place to another, such that he could not be found nor
reached in his alleged place of employment or residence. 2 On 24 April 1985, that is
after three (3) years and a half, with still no answer from the respondent, the Court
noted respondent's success in evading service of the complaint and the Court's
Resolution and thereupon resolved to "suspend respondent Atty. Jordan Terre from the
practice of law until after he appears and/or files his answer to the complaint against
him" in the instant
case. 3

On 28 September 1985, respondent finally filed an Answer with a Motion to Set Aside
and/or Lift Suspension Order. In his Answer, Atty. Terre averred that he had contracted
marriage with complainant Dorothy Terre on 14 June 1977 upon her representation that
she was single; that he subsequently learned that Dorothy was married to a certain
Merlito A. Bercenilla sometime in 1968; that when he confronted Dorothy about her prior
marriage, Dorothy drove him out of their conjugal residence; that Dorothy had mockingly
told him of her private meetings with Merlito A. Bercenilla and that the child she was
then carrying (i.e., Jason Terre) was the son of Bercenilla; that believing in good faith
that his marriage to complainant was null and void ab initio, he contracted marriage with
Helina Malicdem at Dasol, Pangasinan. 4

In her Reply, complainant Dorothy denied that Jason Terre was the child of Merlito A.
Bercenilla and insisted that Jason was the child of respondent Jordan Terre, as
evidenced by Jason's Birth Certificate and physical resemblance to respondent. Dorothy
further explained that while she had given birth to Jason Terre at the PAFGH registered
as a dependent of Merlito Bercenilla, she had done so out of extreme necessity and to
avoid risk of death or injury to the fetus which happened to be in a difficult breech
position. According to Dorothy, she had then already been abandoned by respondent
Jordan Terre, leaving her penniless and without means to pay for the medical and
hospital bills arising by reason of her pregnancy.

The Court denied respondent's Motion to Set Aside or Lift the Suspension Order and
instead referred; by a Resolution dated 6 January 1986, the complaint to the Office of
the Solicitor General for investigation, report and recommendation. 5

Then Solicitor Pio C. Guerrero was appointed investigator by the Office of the Solicitor
General. He set the case for hearing on 7 July 1986 with notice to both parties. On 7
July 1986, complainant Dorothy appeared and presented her evidence ex parte, since
respondent did not so appear. 6 The Investigating Solicitor scheduled and held another
hearing on 19 August 1986, where he put clarificatory questions to the complainant;
respondent once again did not appear despite notice to do so. Complainant finally
offered her evidence and rested her case. The Solicitor set still another hearing for 2
October 1986, notifying respondent to present his evidence with a warning that should
he fail once more to appear, the case would be deemed submitted for resolution.
Respondent did not appear on 2 October 1986. The Investigating Solicitor accordingly
considered respondent to have waived his right to present evidence and declared the
case submitted for resolution. The parties were given time to submit their respective
memoranda. Complainant Dorothy did so on 8 December 1986. Respondent Terre did
not file his memorandum.

On 26 February 1990, the Office of the Solicitor General submitted its "Report and
Recommendation" to this Court. The Report summarized the testimony of the
complainant in the following manner:

Complainant Dorothy Terre took the witness stand and testified

substantially as follows: she and respondent met for the first time in 1979
as fourth year high school classmates in Cadiz City High School (tsn, July
7, 1986, p. 9); she was then married to Merlito Bercenilla, while
respondent was single (id.); respondent was aware of her marital status
 (ibid, p. 14); it was then that respondent started courting her but nothing
happened of the courtship (ibid, p. 10); they [complainant and respondent]
moved to Manila were they respectively pursued their education,
respondent as a law student at the Lyceum University (tsn, July 7, 1986,
p. 12, 15-16); respondent continued courting her, this time with more
persistence (ibid, p. 11); she decided nothing would come of it since she
was married but he [respondent] explained to her that their marriage was
void ab initio since she and her first husband were first cousins (ibid, p.
12); convinced by his explanation and having secured favorable advice
from her mother and
ex-in-laws, she agreed to marry him [respondent] (ibid, 12-13, 16); in their
marriage license, despite her [complainant's] objection, he [respondent]
wrote "single" as her status explaining that since her marriage was void ab
initio, there was no need to go to court to declare it as such (ibid, 14-15);
they were married before Judge Priscilla Mijares of the City Court of
Manila on June 14, 1977 (Exhibit A; tsn, July 7, 1986, pp. 16-17); Jason
Terre was born of their union on June 25, 1981 (Exhibit B, tsn, July 7,
1986, p. 18); all through their married state up to the time he [respondent]
disappeared in 1981, complainant supported respondent, in addition to the
allowance the latter was getting from his parents (ibid, pp. 19-20); she was
unaware of the reason for his disappearance until she found out later that
respondent married a certain Vilma [sic] Malicdem (Exhibit C, tsn, July 7,
1986, pp. 21-22); she then filed a case for abandonment of minor with the
City Fiscal of Pasay City (ibid, p. 23) which was subsequently filed before
Branch II of the City Court of Pasay City as Criminal Case No. 816159
(Exhibit D; tsn, July 7, 1986, p. 24); she likewise filed a case for bigamy
against respondent and Helina Malicdem with the office of the Provincial
Fiscal of Pangasinan, where a prima facie case was found to exist (Exhibit
E; tsn, July 7, pp. 25-26); additionally, complainant filed an administrative
case against respondent with the Commission on Audit where he was
employed, which case however was considered closed for being moot and
academic when respondent was considered automatically separated from
the service for having gone on absence without official leave (Exhibit F;
tsn, July 7, 1986, pp. 28-29). 7

There is no dispute over the fact that complainant Dorothy Terre and respondent Jordan
Terre contracted marriage on 14 July 1977 before Judge Priscilla Mijares. There is
further no dispute over the fact that on 3 May 1981, respondent Jordan Terre married
Helina Malicdem in Dasol, Pangasinan. When the second marriage was entered into,
respondent's prior marriage with complainant was subsisting, no judicial action having
been initiated or any judicial declaration obtained as to the nullity of such prior marriage
of respondent with complainant.

Respondent Jordan Terre sought to defend himself by claiming that he had believed in
good faith that his prior marriage with complainant Dorothy Terre was null and void ab
initio and that no action for a judicial declaration of nullity was necessary.
The Court considers this claim on the part of respondent Jordan Terre as a spurious
defense. In the first place, respondent has not rebutted complainant's evidence as to the
basic facts which underscores the bad faith of respondent Terre. In the second place,
that pretended defense is the same argument by which he had inveigled complainant
into believing that her prior marriage to Merlito A. Bercenilla being incestuous and
void ab initio (Dorothy and Merlito being allegedly first cousins to each other), she was
free to contract a second marriage with the respondent. Respondent Jordan Terre,
being a lawyer, knew or should have known that such an argument ran counter to the
prevailing case law of this Court which holds that for purposes of determining whether a
person is legally free to contract a second marriage, a judicial declaration that the first
marriage was null and void ab initio is essential. 8 Even if we were to
assume, arguendo merely, that Jordan Terre held that mistaken belief in good faith, the
same result will follow. For if we are to hold Jordan Terre to his own argument, his first
marriage to complainant Dorothy Terre must be deemed valid, with the result that his
second marriage to Helina Malicdem must be regarded as bigamous and criminal in
character.

That the moral character of respondent Jordan Terre was deeply flawed is shown by
other circumstances. As noted, he convinced the complainant that her prior marriage to
Bercenilla was null and void ab initio, that she was still legally single and free to marry
him. When complainant and respondent had contracted their marriage, respondent went
through law school while being supported by complainant, with some assistance from
respondent's parents. After respondent had finished his law course and gotten
complainant pregnant, respondent abandoned the complainant without support and
without the wherewithal for delivering his own child safely in a hospital.

Thus, we agree with the Solicitor General that respondent Jordan Terre, by his actions,
"eloquently displayed, not only his unfitness to remain as a member of the Bar, but
likewise his inadequacy to uphold the purpose and responsibility of his gender" because
marriage is a basic social institution. 9

In Pomperada v. Jochico, 10 the Court, in rejecting a petition to be allowed to take the

oath as a member of the Bar and to sign the Roll of Attorneys, said through Mme.
Justice Melencio-Herrera:

It is evident that respondent fails to meet the standard of moral fitness for
membership in the legal profession. Whether the marriage was a joke as
respondent claims, or a trick played on her as claimed by complainant, it
does not speak well of respondent's moral values. Respondent had made
a mockery of marriage, a basic social institution which public policy
cherishes and protects (Article 216, Civil Code). 11

In Bolivar v. Simbol, 12 the Court found the respondent there guilty of "grossly immoral
conduct" because he made a dupe of complainant, living on her bounty and allowing her
to spend for his schooling and other personal necessities while dangling before her the
mirage of a marriage, marrying another girl as soon as he had finished his studies,
keeping his marriage a secret while continuing to demand money from complainant. . . .
." The Court held such acts "indicative of a character not worthy of a member of the
Bar." 13

We believe and so hold that the conduct of respondent Jordan Terre in inveigling
complainant Dorothy Terre to contract a second marriage with him; in abandoning
complainant Dorothy Terre after she had cared for him and supported him through law
school, leaving her without means for the safe delivery of his own child; in contracting a
second marriage with Helina Malicdem while his first marriage with complainant Dorothy
Terre was subsisting, constituted "grossly immoral conduct" under Section 27 of Rule
138 of the Rules of Court, affording more than sufficient basis for disbarment of
respondent Jordan Terre. He was unworthy of admission to the Bar in the first place.
The Court will correct this error forthwith.

WHEREFORE, the Court Resolved to DISBAR respondent Jordan Terre and to STRIKE
OUT his name from the Roll of Attorneys. A copy of this decision shall be spread on the
personal record of respondent Jordan Terre in the Bar Confidant's Office. A copy of this
resolution shall also be furnished to the Integrated Bar of the Philippines and shall be
circularized to all the courts of the land.

SO ORDERED.

Marriage Law; Criminal Law; A marriage contracted in good faith with woman already
married is valid. Hence, contracting a subsequent marriage with another woman would
be bigamous.—Even if we were to assume, arguendo merely, that Jordan Terre held that
mistaken belief in good faith, the same result will follow. For if we are to hold Jordan Terre
to his own argument, his first marriage to complainant Dorothy Terre must be deemed
valid, with the result that his second marriage to Helina Malicdem must be regarded as
bigamous and criminal in character.

G.R. No. L-43701 March 6, 1937

In re Instate of the deceased Marciana Escaño.

ANGELITA JONES., petitioner-appellant-appellee,
vs.
FELIX HORTIGUELA, as administrator, widower and heir, oppositor-appellant-
appellee.

Salvador E. Imperial for petitioner-appellant-appellee.

Vicente L. Faelnar , Hipolito Alo and Ciriaco S. Salazar for oppositor-appellant-appellee.

1.DESCENT AND DISTRIBUTION; DECLARATION OF HEIRS; DECLARATION OF

ABSENCE OF FORMER HUSBAND OF PREDECESSOR OF INHERITANCE.—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 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).

2.ID.; ID.; ID.—In accordance with the foregoing legal provision, the absence of M.
E.'s former husband should be counted from January 10, 1918, the date on which
the last news concerning A. W. J. was received, and from said date to May 6, 1927,
more than nine years elapsed. Said marriage is, therefore, valid and lawful.

3.ID.; ID.; ID.; PRESUMPTION OF DEATH UNDER THE CODE OF CIVIL

PROCEDURE.—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.

4.ID.; ID.; ID.; TRANSMISSION OF MARRIAGE CERTIFICATE TO MUNICIPAL

SECRETARY.—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.

5.ID.; ID.; ID.; USUFRUCT OF THE SURVIVING SPOUSE.—Inasmuch as F. H. was

lawfully married to M. E. 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).

6.ID.; ID.; JURISDICTION.—The lower court had no jurisdiction to set aside the order
of January 10, 1933, approving the administrator's fees and the order of June 26th
of said year, approving the partition and the final account. Neither did it have
jurisdiction to order the presentation of another project of partition and final account
on the ground that said orders became final, no appeal having ever been taken
therefrom. The court,could not resume jurisdiction 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 A. J.'s motion is based.

CONCEPCION, J.:

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 Escaño,
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 portion and the final account; and (5) ordering the presentation
of another project of partition and final account.

As Marciana Escaño 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 Escaño, 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 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 Escaño 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
Escaño; 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 represent 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 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 or
Hortiguela be declared null and void that petitioner be declared the only universal heir of
her deceased mother; and (e) that in case there was a valid marriage between Felix
Hortiguela and Marciana Escaño, Hortiguela 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 new partition of the properties be made.

After Hortiguela'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 Hortiguela's alleged marriage to Marciana Escaño was celebrated.

It is a fact that in December, 1914, Marciana Escaño 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 institute in the Court of First Instance of Maasin,
Leyte, at the instance of Marciana Escaño, 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 month 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 Escaño 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
Escaño is null and void. This court does not believe so. 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 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 (section III, paragraph 2, General orders, No. 68).

In accordance with the foregoing legal provision, the absence of Marciana Escaño'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
Hortiguela or Marciana Escaño, 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 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 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 said requisites."

In another case (U. S. vs. De Vera, 28 Phil., 105), the court said:

"Certificate issued pursuant the provisions of section 20 of the Municipal Code by

municipal secretaries, 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 Escaño 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 Escaño and was
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).

Therefor, 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 error attributed to the administrator Felix Hortiguela in Angelita
Jones' motion and alleged therein as one of the grounds for asking for the reopening 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 Hortiguela as his own 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 Escaño prior to the controversy provoked by said heiress. As to the
remainder of P2,000, 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 P2,000 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 therefrom, the court
has lost jurisdiction 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 section refer to
grounds other than those upon which Angelita Jones' motion of May 3, 1934, is based.

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 Escaño
reserving to the parties the right to discuss which are paraphernal and which are
conjugal properties. So ordered.