RULE 107
ABSENTEES
Title XIV, NCC
An absentee is a person who:
Extraordinary circumstances
V/A/W/O
(A 391, NCC)
1. Disappears from his domicile
2. Whereabouts are unknown
3. No agent to administer his property
Ordinary circumstances
normal circumstances
(A 390, NCC)
(Sec 1, Rule 107)
(A 381, NCC)
2 YEARS
Rule 107 may only apply when:
Petition for appointment of
representative
Petition for declaration of
absence when there is no news
Present spouse may remarry
(extraordinary)
1. the absentee has left properties that need to be
administered by a representative
2. When the period under the NCC/FC has lapsed
Petition for appointment of
absentee's representative
Petition for declaration of absence
Who may file:
Examples:
1. Spouse present
2. Heirs instituted in a will
who may present an
authentic copy of the
same
3. Relative who would
succeed by the law of
intestacy
4. Those who have over the
property of the absentee,
some right subordinated
to the condition of his
death
Who may file:
1. Any interested
party
2. Absentee's relative
3. Absentee's friend
(Sec 1, R107)
(A 381, NCC)
Present spouse may marry
(ordinary)
Petition for declaration of absence if
the absentee left a person in charge
of his properties
Presumed dead for all purposes
including opening of succession if
the absentee disappeared after the
age of 75 y/o (ordinary)
Lapse of
2 years
5 years (with rep)
Lapse of 2 years
Presumed dead for all purposes
including succession
(Extraordinary)
5 YEARS
(Sec 2, R107)
(Sec 1, R107)
4 YEARS
1. the spouse of the
absentee is asking for
separation of property
(A191, NCC)
2. Wife is asking the Court
that the administration
of an classes of
property in the marriage
be transferred to her
(A196, NCC)
3. To open the estate for
succession
(Sec 2, R107)
(A 385, NCC)
7 YEARS
Presumed dead for all purposes
except for the purpose of succession
(Ordinary)
10 YEARS
Presumed dead for purposes of
opening the absentee's succession
(ordinary)
Where to file:
RTC where the absentee resided before
disappearance
There is NO independent action for a
petition for declaration of presumptive death.
XPN: Art 41, FC for purposes of
remarriage provided that the period for
absence is met
CONTENTS of the PETITION:
1. Jurisdictional facts
2. N/A/R of the heirs instituted in the will and
the relatives who would succeed by the
law of intestacy
3. N/R creditors and those who may have
adverse interest over the property of the
absentee
4. Probable value, location, character of the
property belonging to the absentee
(Sec 3, R107)
The courts will fix a date and place for the hearing
Serve notice at least 10d before hearing to:
1. Known heirs, legatees, devisees
2. creditors
3. Other interested persons
Publish notice 1x/3 consecutive weeks in the P/C where
Absentee resides
(Sec 4, R107)
Those who will oppose should file a petition and state the
grounds therefor
(Sec 5, R107)
Hearing:
1. Petitioner must show compliance with Sec 4
2. Upon satisfactory proof of allegations in the petition, the
court will issue an order granting the petition
3. Appoint a representative, trustee or administrator for the
absentee
(Sec 6, R107)
Order of appointment:
1. Spouse present when there is no legal
separation
2. Any competent person appointed by the
court
(Sec 7, R107)
(A 383, NCC)
Declaration of absence shall take effect 6m after
publication
(Sec 6, R107)
(A 386, NCC)
Termination of administration:
Upon order of the court when:
1. Absentee appears:
Personally or by means of an agent
2. Death of the absentee is proved:
His testate or intestate heirs appear
3. When a third person acquires the property:
by purchase or other title
with proof of proper document
EFFECTS:
The trustee or administrator will cease
performance of his office
The property is placed at the disposal
of who has the right to it
(Sec 8, R 107)
(A 389, NCC)
RULE 107 in relation to
SUMMARY PROCEEDINGS in
the FAMILY CODE
CHARACTERISTICS OF SUMMARY
PROCEEDINGS IN FC:
1. The petition shall be verified, to assure its truthfulness.
2. Notice of the filing of the petition should always be sent to the
respondent at his or her last known address, as part of due process.
3. No periods are set, and it is up to the judge to determine the period
within which the respondent should answer the petition and the hearing
thereof, which should be very short, considering that the proceedings
are summary.
4. There is a preliminary conference wherein lawyers are excluded,
since in some cases, they are only obstructions to a compromise
between the parties.
5. The appearance of the trial fiscal of the court is not required
since he might just be absent or come unprepared.
6. The preliminary conference should be conducted personally by the
judge in the nature of an inquisitional hearing.
7. The proceeding can be decided on the basis of affidavits or other
documentary evidence because of its summary nature, and oral
testimonies of witnesses will be required only when needed and at the
discretion of the court.
8. The case shall be decided in the most expeditious manner and
without regard to technical rules.
9. The judgment of the court shall be immediately final and executory
GR: The judgment of the court shall
be final and executory
XPN: Petition for Certiorari to
question abuse of discretion
amounting to lack of jurisdiction
(A 247, FC)
If the wife is appointed as administratrix of the
husband's property, she cannot alienate or
encumber without judicial authority:
1. Husband's property
2. Conjugal partnership property
(A 388, NCC)