Family Code Art 177-180 Cases

EN BANC[A.M. No. MTJ-92-716. October 25, 1995.]

MA. BLYTH B. ABADILLA, complainant, vs. JUDGE JOSE C. TABILIRAN, JR., Presiding Judge, 8th MCTC, Manukan and Jose Dalman, 9th Judicial

Region, Manukan, Zamboanga del Norte, respondent. cdasia

SYLLABUS1. CIVIL CODE; PERSONS AND FAMILY RELATIONS; MARRIAGE; WHEN SANCTITY THEREOF VIOLATED; EFFECT IN CASE AT BAR. — Contrary to his protestations that he started to cohabit with Priscilla Baybayan only after his first wife, Teresita Tabiliran, had long abandoned him and the conjugal home in 1966, it appears from the record that he had been scandalously and openly living with said Priscilla Baybayan as early as 1970 as shown by the fact that he begot three children by her, namely Buenasol, Venus and Saturn, all surnamed Tabiliran. Buenasol was born on July 14, 1970; Venus was born on September 7, 1971; while Saturn was born on September 20, 1975. Evidently, therefore, respondent and Priscilla Baybayan had openly lived together even while respondent's marriage to his first wife was still valid and subsisting. The provisions of Sec. 3(w) of the Rules of Court and Art. 390 of the Civil Code which provide that, after an absence of seven years, it being unknown whether or not the absentee still lives, the absent spouse shall be considered dead for all purposes, except for those of succession, cannot be invoked by respondent. By respondent's own allegation, Teresita B. Tabiliran left the conjugal home in 1966. From that time on up to the time that respondent started to cohabit with Priscilla Baybayan in 1970, only four years had elapsed. Respondent had no right to presume therefore that Teresita B. Tabiliran was already dead for all purposes. Thus, respondent's actuation of cohabiting with Priscilla Baybayan in 1970 when his marriage to Teresita B. Tabiliran was still valid and subsisting constitutes gross immoral conduct. It makes mockery of the inviolability and sanctity of marriage as a basic social institution. According to Justice Malcolm: "The basis of human society throughout the civilized world is that of marriage. It is not only a civil contract, but is a new relation, an institution on the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony." (Civil Code, 1993 Ed., Volume 1, p. 122, Ramon C. Aquino). By committing the immorality in question, respondent violated the trust reposed on his high office and utterly failed to live up to the noble ideals and strict standards of morality

required of the law profession. (Imbing v. Tiongson, 229 SCRA 690).

2. ID.; ID.; LEGITIMATION; CONSTRUED; WHEN NOT APPLICABLE; CASE AT BAR. — An examination of the birth certificates of respondent's three illegitimate children with Priscilla Baybayan clearly indicate that these children are his legitimate issues. It was respondent who caused the entry therein. It is important to note that these children, namely, Buenasol, Venus and Saturn, all surnamed Tabiliran, were born in the year 1970, 1971, and 1975, respectively, and prior to the marriage of respondent to Priscilla, which was in 1986. As a lawyer and a judge, respondent ought to know that, despite his subsequent marriage to Priscilla, these three children cannot be legitimated nor in any way be considered legitimate since at the time they were born, there was an existing valid marriage between respondent and his first wife, Teresita B. Tabiliran. The applicable legal provision in the case at bar is Article 269 of the Civil Code of the Philippines (R.A. 386 as amended) which provides: Art. 269. Only natural children can be legitimated. Children born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other, are natural. Legitimation is limited to natural children and cannot include those born of adulterous relations (Ramirez vs. Gmur, 42 Phil. 855). The Family Code (Executive Order No. 209), which took effect on August 3, 1988, reiterated the above-mentioned provision thus: Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.

3. ID.; ID.; ID.; RATIONALE. — The reasons for this limitation are given as follows: 1) The rationale of legitimation would be destroyed; 2) It would be unfair to the legitimate children in terms of successional rights; 3) There will be the problem of public scandal, unless social mores change; 4) It is too violent to grant the privilege of legitimation to adulterous children as it will destroy the sanctity of marriage; 5) It will be very scandalous, especially if the parents marry many years after the birth of the child. (The Family Code, p. 252, Alicia V. Sempio Diy).

4. LEGAL ETHICS; NOTARY PUBLIC; COMPENSATION; RULE; WHEN VIOLATED; CASE AT BAR. — Respondent himself admitted that he prepared and notarized the documents wherein he charged notarial fees. Though he was legally allowed to notarize documents and charge fees therefor due to the fact that there has been

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no Notary Public in the town of Manukan, this defense is not sufficient to justify his otherwise corrupt and illegal acts. Section 252 of the Notarial Law expressly provides thus: Sec. 252. Compensation of Notaries Public — No fee, compensation, or reward of any sort, except such as is expressly prescribed and allowed by law, shall be collected or received for any service rendered by a notary public. Such money collected by notaries public proper shall belong to them personally. Officers acting as notaries public ex-officio shall charge for their services the fees prescribed by law and account therefor as for Government funds. (Notarial Law, Revised Administrative Code of the Philippines, p. 202.) Respondent's failure to properly account and turn over the fees collected by him as Ex-Officio notary to the municipal government as required by law raises the presumption that he had put such fund to his personal use. cdlex

5. JUDICIAL ETHICS; JUDGES; VIOLATION OF THE CODE OF JUDICIAL CONDUCT; CASE AT BAR. — With respect to the charge that respondent prepared an Affidavit of Desistance in a rape case filed before his sala for which he collected the amount of P500.00 from the complainant therein, respondent merely denied the said imputation but failed to offer any evidence to support such denial. Denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary value over the testimony of credible witnesses who testify on affirmative matters (People v. Amaguin, 229 SCRA 166). It is unfortunate that respondent had failed to adhere to, and let this remind him once again of Canon 2 of the Code of Judicial Conduct, to wit: Canon 2 — A judge should avoid impropriety and the appearance of impropriety in all activities.

D E C I S I O NPER CURIAM p:"We have a list of these crooked judges whose actuations have been found to be patently wrong and indefensible. There ought to be no objection or compunction in weeding them out from the service. If they are not booted out now, it will take from here to eternity to clean this Augeun stable." 1

Indeed, our judicial structure is supposed to be manned by magistrates chosen for their probity, integrity, impartiality, dedication and learning. And so, any judge wanting in any of these qualities should be broomed off and out of the bench in order to improve the judicial landscape. Screening off the misfits, considering the great

number of judges and justices in the country at present, is the arduous and Herculean task of this Court. The effort if dramatized with rectitude and sincerity should bring about the strengthening of the people's abiding faith in democracy and the integrity of our courts of justice.The herein administrative case arose from a complaint, dated September 8, 1992, filed by Ma. Blyth B. Abadilla, a Clerk of Court assigned at the sala of respondent, Judge Jose C. Tabiliran, Jr., of the 8th Municipal Circuit Trial Court, Manukan, Zamboanga del Norte. Respondent stands charged with "gross immorality, deceitful conduct, and corruption unbecoming of a judge."In her verified complaint, complainant Abadilla, in respect to the charge of gross immorality on the part of the respondent, contends that respondent had scandalously and publicly cohabited with a certain Priscilla Q. Baybayan during the existence of his legitimate marriage with Teresita Banzuela. Adding ignominy to an ignominious situation, respondent allegedly shamefacedly contracted marriage with the said Priscilla Baybayan on May 23, 1986. Complainant claims that this was a bigamous union because of the fact that the respondent was then still very much married to Teresita Banzuela.Furthermore, respondent falsely represented himself as "single" in the marriage contract (Exh. "A") and dispensed with the requirements of a marriage contract by invoking cohabitation with Baybayan for five years. cdaOf persuasive effect on the charge of immorality is the fact that, earlier, respondent's wife filed a complaint in the case entitled, Teresita B. Tabiliran vs. Atty. Jose C. Tabiliran, Jr., 115 SCRA 451. Respondent stood charged therein for abandoning the family home and living with a certain Leonora Pillarion with whom he had a son.In respect of the charge of deceitful conduct, complainant claims that respondent caused to be registered as "legitimate," his three illegitimate children with Priscilla Baybayan, namely:Buenasol B. Tabiliran born on July 14, 1970

Venus B. Tabiliran born on Sept. 7, 1971

Saturn B. Tabiliran born on Sept. 20, 1975

by falsely executing separate affidavits stating that the delayed registration was due to inadvertence, excusable negligence or oversight, when in truth and in fact, respondent knew that these children cannot be legally registered as legitimate. The following acts are alleged to have constituted the charge of corruption:(1) Utilizing his office time, while being a judge, in the private practice of law by the preparation and


notarization of documents, out of which he charged fees beyond the authorized rates allowed as Ex-Officio Notary Public. These acts which, according to the charge, amount to the private practice of law, prejudice public interest.

Complainant submitted the following documents in support of these allegations:

a) Affidavit of Ponciana Geromo (Annex "B"), attesting to the fact that respondent Judge Tabiliran prepared a Simultaneous Deed of Sale, (Annex "C", Doc. No. 901, Page No. 77, Book No. V, Series of 1991 of Ex-Officio Notary Public Jose C. Tabiliran, Jr.) and collect P600.00 from the vendees (par. 10(a) a-1 Complaint, p. 9 records);

b) Receipt prepared under instruction of the respondent showing that he received P250.00 thru MCTC Aide Ely O. Inot for preparation and notarization of Joint Affidavit declaring the correct ages of Carlo Manzano, Lodmila Cinco, Kadapi Amad, Jul Samud and Amman Eddai dated November 12, 1991, when the legal fees therefor should have been P10.00 only (Annex "D") (par. 10(a) a-2 Complaint, p. 9 records);

c) Another receipt (Annex "E") prepared thru the direction of the respondent dated November 12, 1991, showing that said respondent received from Reynaldo Subebe the sum of P150.00 for preparation and notarization by him of a Joint Affidavit declaring the correct age of Agata Luna, Rosie Miranda and Jose Juneser Adrias (par. 10 (a) a-c Complaint, p. 9 records);

d) Still another receipt (Annex "F") dated November 12, 1991, signed by the respondent himself showing that he received from Nelly Baradas the sum of P50.00 for preparation and notarization of Joint Affidavit attesting to the correct age of one Luzviminda Jacoba (par. 10(a) a-d Complaint, p. 9 records);

e) Another receipt (Annex "G") dated November 12, 1991, issued by the respondent, showing that he received from Torres P. Modai the sum of P50.00, thru the same Ely O. Inot, MCTC Aide, for preparation of Joint Affidavit attesting to the correct age of Flores Jalampangan (par. 10 (a) a-e Complaint, pp. 9 & 10 records).

(2) Accepting bribes from parties-litigants in his Court as supported by an affidavit (Annex "M") executed by a certain Calixto Calunod, a court aide, stating that he saw Edna Siton, complainant in a criminal case tried by respondent, hand over to the latter a bag of fish and squid which respondent Judge received.

(3) Preparing an Affidavit of Desistance in a case filed with his sala out of which he collected the amount of P500.00 from the accused Antonio Oriola, as supported by the affidavits of Arcelita Salvador, the complainant therein, and Benito Sagario, one of the persons present when the accused perpetrated the acts aforesaid. (Submitted as Annexes "I" and "J", respectively.)

Complainant manifests that the commission by the respondent of the foregoing acts renders him unfit to occupy the exalted position of a dispenser of justice. By the example shown by the respondent, the public had allegedly lost confidence in the administration of justice, perceiving as is evident to see that the person occupying the position of a judge lacks the morality and probity required of one occupying such a high office.

Respondent, in his comment, dated December 25, 1992, declared that his cohabitation with Priscilla Baybayan is not and was neither bigamous nor immoral because he started living with Priscilla Baybayan only after his first wife had already left and abandoned the family home in 1966 and, since then, and until the present her whereabouts is not known and respondent has had no news of her being alive. He further avers that 25 years had already elapsed since the disappearance of his first wife when he married Priscilla Baybayan in 1986.Respondent cited Sec. 3(w), Rule 131 of the Rules of Court and Art. 390 of the Civil Code in order to show the legality of his acts:"After the absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes except for those of succession." (Rule 131, Sec. 3(w), Rules of Court.)

"After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession." (Art. 390, Civil Code.)

The case of Jones vs. Hortiguela, 64 Phil. 179, where this Court held that for the purpose of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee is to respondent's mind, a case in point.He admits that he indicated in his marriage contract that he was then "single," but he denied the charge that he acted with deceit or false misrepresentation, claiming that, since there were only three words to choose from, namely: Single, Widow or Divorced, he preferred to choose the word "single," it being the most appropriate. Besides, both he and Priscilla


executed a joint affidavit wherein his former marriage to Banzuela was honestly divulged.On the charge of corruption, respondent submitted certifications (Annexes "4" & "5") from the Mayor of Manukan, Zamboanga del Norte, attesting to the fact that there was no Notary Public in Manukan and, as such, respondent may be allowed to notarize documents. He denied having charged exorbitant fees. He claims that all the amounts received by him were used to subsidize office expenses, since the funds he had been receiving from the municipal government were not enough to cover expenses in maintaining his office. Respondent submitted a certification (Annex "6") from the Accounting Department of the Municipal Government of Manukan to the effect that his yearly expenditures were more than the yearly appropriations.Respondent finds support in Canon 4, Rule 4.01 of the Code of Judicial Conduct which states:"A Judge may, with due regard to official duties, engage in activities to improve . . . the administration of justice."

Respondent vehemently denies the charge of bribery claiming that it was inconceivable for him to receive a bag full of fish and squid since his residence was 42 kilometers from Jose Dalman where his courtroom or office was located. It takes one an hour and a half by bus to reach Katipunan and so, by the time he reaches his house, the fish and the squid should have become rotten. In support of his denials, respondent submitted as Annex "8", an affidavit of Ely D. Inot, their court Interpreter who declared:xxx xxx xxx"3. That last June 6, 1991, I was with the Municipal Judge, Jose C. Tabiliran, Jr., from the morning until we went home in the afternoon and we in fact dined together in the local Carenderia of Jose Dalman as it is the usual ways of the Judge to eat lunch together with the court personnel;

4. That when we went home in the afternoon of that day we were also together riding in a bus, the Lillian Express and until I drop in Roxas and he proceeded to Katipunan where his residence is;

5. That all the time during that day I did not noticed him bringing anything except his 'Hand Bag' which he used to carry in going to the office;" (Annex "8", Affidavit of Ely O. Inot, December 17, 1992.)

xxx xxx xxx

Finally, respondent tags as a fabricated lie the charge that he prepared an Affidavit of Desistance in a case pending in his sala and thereafter charged the accused, Antonio Oriola, the sum of P500.00 for legal services. The complainant, he said, was the one who induced Arcelita Salvador (the complainant in the rape case) to execute an affidavit (Annex "I") in support of the charge of corruption against respondent.Complainant's filing of the present case was motivated by revenge and resentment because, earlier, respondent filed an administrative case (A.M. No. P-91-597) against her for "Insubordination and Serious Misconduct." The Supreme Court decided to reprimand her with a warning that a repetition of her acts will be severely dealt with. Respondent claims that the complainant had nevertheless repeatedly continued to do acts of insubordination in the following manner:1) She continues to keep court records and has kept refusing to hand them over to respondent inspite of verbal and written orders;

2) She refused to receive a memorandum from the Vice-Mayor requiring the Clerk of Court to submit an Annual report;

3) She refused to prepare the said annual report required of her as Clerk of Court;

4) She continue to refuse to obey just and lawful orders of the Court.

On April 12, 1993, by resolution of this Court En Banc, the herein administrative case was referred to Executive Judge Jesus O. Angeles of the Regional Trial Court, Dipolog City, for investigation, report and recommendation. Judge Angeles found respondent guilty only on two (2) counts of corruption: (1) for acting as notary public and collecting fees for his services; and (2) for preparing an affidavit of desistance in a case pending in his Court and receiving payment for it.In his report and recommendation dated August 3, 1993, Executive Judge Angeles found that:ON GROSS IMMORALITY:In contracting marriage with Priscilla Q. Baybayan on May 23, 1986, (p. 13 of the records), respondent did not hide the fact that he was married to Teresita T. Banzuela, having disclosed it in his affidavit jointly executed with Priscilla Q. Baybayan on May 23, 1986 (p. 115 of the records), particularly paragraph 4 thereof which reads:

"4. That affiant Jose C. Tabiliran, Jr., was formerly married to Teresita T . Banzuela but who left and abandoned their family home sometime in 1965


in Katipunan, Zamboanga del Norte, and until now at present her whereabouts is not known."

It was therefore a marriage contracted under Article 83(2) of the Civil Code which, although bigamous, remains valid until automatically terminated by the recording of the affidavit of reappearance of the absent spouse (Art. 42, Family Code). Respondent's assertion that since 1965 to the present, his first wife Teresita T. Banzuela had left their conjugal dwelling and did not return, her whereabouts being unknown, was not controverted. Living as husband and wife pursuant to an authorized bigamous marriage, respondent cannot be said to be acting in an immoral and scandalous manner, and the immoral stigma of extra-marital union since 1969 duly declared in their aforesaid joint affidavit, may be considered cleansed by their marriage in 1986, if Art. 1395 of the Civil Code on ratification on contracts in general is allowed to be applied, it being ratification of marital cohabitation. Article 76 of Civil Code, now Art. 34 of the Family Code was intended to facilitate and encourage the marriage of persons who have been living in a state of concubinage for more than five years (Tolentino, Civil Code, Book I, 1974 Ed., p. 245, cited in Ernesto L. Pineda, Family Code, 1992 Ed., p. 38). Indicating his civil status in the marriage contract as "single" is hardly considered a misrepresentation of fact, specially to the solemnizing officer, Municipal Mayor Jacinto C. Ruedas, Jr. to whom the aforesaid joint affidavit was submitted.

ON DECEITFUL CONDUCT:Respondent's children begotten with Priscilla Q. Baybayan, namely: Buenasol B. Tabiliran, Venus B. Tabiliran and Saturn B. Tabiliran, all of whom were born before their marriage, were disclosed and made known to the solemnizing officer and the latter himself, in his affidavit dated May 23, 1986 (p. 116 of the records) which supports the marriage contract of respondent with Priscilla Q. Baybayan, having shown such fact.

Exhibit P which purports to be an affidavit of Lydia T. Zanoria dated May 27, 1993, consisting of three pages, was submitted by the complainant for the purpose of proving her charge that the respondent falsely executed his three separate affidavits, namely: Exhibit K dated May 24, 1983 regarding the late registration of birth of his daughter Buenasol B. Tabiliran; Exhibit M dated May 28, 1988 regarding the late registration of birth of his third child Saturn B. Tabiliran; and his affidavit dated May 27, 1988, Exhibit O, in reference to the late registration of birth of his second child Venus B. Tabiliran, stating inadvertence, excusable negligence or

oversight as the reasons for the delayed registration of their births, without however presenting said affiant Mrs. Zanoria, consequently denying respondent the opportunity to cross examine her. Her affidavit is not among those brought out in the pre-hearing conference, and was not discussed during the hearing itself, submitting it only after the investigation proper was terminated. The supposed affiant claimed she was the government midwife who attended to the births of respondent's three children, denying, as the affidavit shows, negligence, inadvertence or oversight on her part to register their birth on time. Not having been presented for respondent to confront her, or an opportunity to do so, Exhibit P cannot be considered evidence of the charge. An affidavit is hearsay unless the affiant is presented (People vs. Villeza, 127 SCRA 349), or admitted by the party against whom it is presented.

ON CORRUPTION:1. Acting as Notary Public during office hours, and collecting fees:

Respondent has admitted having prepared the documents and collected fees, in the instances specified in par. 10 of the complaint, namely: (1) affidavit of Ponciana Geromo; (2) Joint Affidavit of Carlo Manzano, Lodmila Cinco, Kadapi Amad, Jul Samud and Amman Eddai; (3) Joint Affidavit of Agata Luna, Rosie Miranda and Jose Juneser Adrias; (4) Joint Affidavit on the correct age of Luzviminda Jacoba; and (5) Joint Affidavit on the correct age of Flores Jalampangan, but not necessarily on the accuracy of the amounts therein stated as having been collected by him from them (please see Pre-Hearing Order of May 20, 1993 of the Investigating Judge). Seeking justification of his acts, respondent submitted Annexes 4 & 5 of his comments (pp. 118 and 119, records) which are certifications of Manukan Mayor Eugene U. Caballero attesting that in the absence of a Notary Public in Manukan town, respondent who is a Judge thereat was allowed "to prepare and ligalize (sic) documents."

He declared "the fees derived from the preparation and notarization of documents were mostly used by respondent to buy supplies and materials of his Office," explaining that his office needs cannot be sustained by the appropriations of the local government which are inadequate. On page 120 of the records, his Annex 6 shows a shortage in his appropriations for supplies. And supplies from the Supreme Court can only be obtained if secured personally but has to assume the expenses for transportation, freight and handling.


Respondent Judge maintains that the Code of Judicial Conduct does not prohibit him from acting as Notary Public, and the fees he has received were much lower than the rates prescribed by the Integrated Bar of the Philippines, Zamboanga del Norte Chapter, submitting Annex 3, p. 117 of the records, to prove it.Further justifying his act under Canon 4, Rule 4.01 of the Code of Judicial Conduct which provides that a judge may, with due regard to official duties, engaged in activities to improve the administration of justice, respondent claims that due to his efforts, he was able to secure an extension room of his office covering a floor area of 24 square meters, from the Sangguniang Pampook of Region IX based in Zamboanga City, costing P19,000.00 per certification shown in his Annex 7 (page 121 of the records).In the light of 1989 Code of Judicial Conduct vis-a-vis the power of Municipal Trial Court Judges and Municipal Circuit Trial Court Judges to act in the capacity of Notary Public Ex-Officio, the Honorable Supreme Court in A.M. No. 89-11-1303, MTC, Dec. 19, 1989, has ruled:

"MTC and MCTC Judges assigned to municipalities or circuits with no lawyers or notaries public may, in their capacity as notary public ex-officio perform any act within the competency of a regular Notary Public, provided that: (1) all notarial fees charged be for the account of the Government and turned-over to the municipal treasurer (Lapeña, Jr. vs. Marcos, Adm. Matter No. 1969-MJ, June 29, 1982, 114 SCRA 572); and (2) certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit." LLpr

Although absence of a notary public commissioned for, and residing in Manukan town, even in Jose Dalman which is within his circuit is confirmed, respondent Judge while he may be justified in so acting as notary public, did not, however, comply with requirement No. 1 which obliged him to charge for the account of the Government and turn-over to the municipal treasurer all notarial fees. And there is no way of determining the truth of his assertion that the notarial fees he collected were "mostly used" to buy supplies and materials for his office, absent any accounting.

2. Accepting Bribe from Parties-litigants:

Admitting the existence of Annex H found on page 21 in the records, respondent, however, denied the imputation therein contained by affiant Calixto Calunod that he received a sando bag full of fish and squid from a certain Edna Siton who had a case with respondent's court as

complainant in a certain criminal case. Instead of calling the affiant himself, complainant presented the Court Interpreter Ely O. Inot, who "confirmed that there was squid and fish contained in a plastic bag which was left in Aseniero Carenderia by a person unknown to her and some members of the Court staff. When informed by the carenderia owner that the stuff was intended for Judge Tabiliran, the latter told them to cook it, and they afterwards partook of it without the Judge who already boarded the passenger bus." (Record of Proceedings, p. 1, par. No. 1, dated June 11, 1993). Being her witness, complainant is bound by her testimony. This particular charge is, therefore, not proved.

3. Preparing Affidavit of Desistance and Collecting Fee for his Services:Under this count, two affidavits both sworn before 2nd Asst. Provincial Fiscal Valeriano B. Lagula were submitted: one by Arcelita Salvador, complainant in an attempted rape case who was categorical in her declaration that respondent Judge asked and received from Pitoy Oriola, brother of accused Antonio Oriola the amount of P500.00 after the Judge prepared the affidavit of desistance and motion to dismiss which he made her sign (Annex I, p. 40 records). Benito Sagario who was present executed another separate affidavit, Annex J found on page 41 in the records, confirming it. In admitting the affidavit, respondent, however, denied the imputation, asserting that it is false, but without confronting them or presenting witnesses to dispute their accusation. He could have demanded that the affiants, including the persons they mentioned were present in the transaction, namely: accused Antonio Oriola, his brother Pitoy Oriola, Ignacio Salvador, and INC Minister Antonio Caluña be required to appear for his confrontation, but respondent chose not, contended himself only with the explanation that it was just the handiwork of complainant Abadilla and her husband, a major in the military who is an active member of the Iglesia Ni Cristo of which affiant Arcelita Salvador also belonged, which is bare and unsubstantiated. No other conclusion can be drawn other than holding, as the Investigating Judge does, that this particular charge is true. Evidently, Judge Tabiliran wants to avoid meeting them by way of confrontation. If he is innocent, and is certain the charge is fabricated, he will surely raise hell to insist that he confronts them face to face. Clearly, his deportment betrays his insistence of innocence.On Respondent's Counterclaim:It was not proven. On the contrary, the controverting evidence shows that the records of Criminal Case No. 2279 referred to in his Annex 9, p. 123 of the records, were not in the


possession of complainant. Quite obviously, Ely O. Inot, respondent's Court Interpreter tried to cover up the fact that the same were already being kept by Judge Tabiliran before he issued the memorandum, Annex 9. Complainant, who is respondent's Clerk of Court was not, therefore, in a position to comply with his Order.

Also, Mrs. Abadilla's failure to prepare the annual report of the Court in 1992 as called for in Annexes 10 and 10-A was, contrary to respondent's claim, not by reason of her obstinate refusal to obey her superior but, by sheer impossibility to comply, considering that monthly reports upon which the annual report shall be based, were not prepared by her, not because of her refusal to do so which is among those included in her job description, but because the Judge himself took the work from her for no other reason than to establish the false impression that the complainant is disobedient to the Judge, and does not attend to her duties.

By and large, there is no harmony in their office. Complainant and respondent are not in talking terms. They are hostile to each other. Respondent's complaint that Mrs. Abadilla spat saliva in front of him whenever they meet each other; destroying the Court dry seal by throwing it at him one time she was mad; showing face; and sticking out her tongue to him, are all puerile acts which the undersigned cannot conclude as sufficiently established even with the testimony of Mrs. Ely O. Inot which is far from being definite and categorical, whose actuation is understandable because Judge Tabiliran, being her superior, has moral ascendancy over her (Record of Proceedings, June 11, 1993). The undersigned believes that the problem is on Judge Tabiliran, and not on Mrs. Abadilla, who has been in the service as Clerk of Court under a previous Judge of the same Court for quite long without any complaint having been filed. The evidence disputing his counterclaim tends to show that respondent tried to build up a situation of undesirability against his Clerk of Court whom he wanted pulled out from her position in his Court.Other Matters Not Covered By The Complaint And Comments:The authority to investigate being confined only to matters alleged in the complaint on the basis of which respondent filed his comments, other matters not therein covered which complainant brought out by way of presenting documentary exhibits, (from Exhibit AAA to HHH), are not subject of this report and recommendation.RECOMMENDATION:

The charge of GROSS IMMORALITY and DECEITFUL CONDUCT have not been proven, but the undersigned believes evidence is sufficient to sustain a pronouncement of guilt on two counts of CORRUPTION, namely: acting as notary public and collecting fees for his services in preparing affidavit of desistance of a case in his Court. Likewise, acts of oppression, deceit and false imputation against his Clerk of Court are found duly established.

WHEREFORE, suspension of the respondent Judge from the service for a period of three months is recommended.

THE FOREGOING CONSIDERED, We hold the respondent culpable for gross immorality, he having scandalously and openly cohabited with the said Priscilla Baybayan during the existence of his marriage with Teresita B. Tabiliran.

Contrary to his protestations that he started to cohabit with Priscilla Baybayan only after his first wife, Teresita Tabiliran, had long abandoned him and the conjugal home in 1966, it appears from the record that he had been scandalously and openly living with said Priscilla Baybayan as early as 1970 as shown by the fact that he begot three children by her, namely Buenasol, Venus and Saturn, all surnamed Tabiliran. Buenasol was born on July 14, 1970; Venus was born on September 7, 1971; while Saturn was born on September 20, 1975. Evidently, therefore, respondent and Priscilla Baybayan had openly lived together even while respondent's marriage to his first wife was still valid and subsisting. The provisions of Sec. 3(w) of the Rules of Court and Art. 390 of the Civil Code which provide that, after an absence of seven years, it being unknown whether or not the absentee still lives, the absent spouse shall be considered dead for all purposes, except for those of succession, cannot be invoked by respondent. By respondent's own allegation, Teresita B. Tabiliran left the conjugal home in 1966. From that time on up to the time that respondent started to cohabit with Priscilla Baybayan in 1970, only four years had elapsed. Respondent had no right to presume therefore that Teresita B. Tabiliran was already dead for all purposes. Thus, respondent's actuation of cohabiting with Priscilla Baybayan in 1970 when his marriage to Teresita B. Tabilaran was still valid and subsisting constitutes gross immoral conduct. It makes mockery of the inviolability and sanctity of marriage as a basic social institution. According to Justice Malcolm: "The basis of human society throughout the civilized world is that of marriage. It is not only a civil contract, but is a new relation, an institution on the maintenance of which the public is deeply


interested. Consequently, every intendment of the law leans toward legalizing matrimony." (Civil Code, 1993 Ed., Volume 1, p. 122, Ramon C. Aquino).

By committing the immorality in question, respondent violated the trust reposed on his high office and utterly failed to live up to the noble ideals and strict standards of morality required of the law profession. (Imbing v. Tiongson , 229 SCRA 690). LLjurAs to respondent's act of eventually marrying Priscilla Baybayan in 1986, We are not in a position to determine the legality thereof, absent all the facts for a proper determination. Sufficient for Our consideration is the finding of the Investigating Judge, that the said marriage is authorized under Art. 83 (2) of the Civil Code.With respect to the charge of deceitful conduct, We hold that the charge has likewise been duly established. An examination of the birth certificates (Exhs. "J", "L", & "M") of respondent's three illegitimate children with Priscilla Baybayan clearly indicate that these children are his legitimate issues. It was respondent who caused the entry therein. It is important to note that these children, namely, Buenasol, Venus and Saturn, all surnamed Tabiliran, were born in the year 1970, 1971, and 1975, respectively, and prior to the marriage of respondent to Priscilla, which was in 1986. As a lawyer and a judge, respondent ought to know that, despite his subsequent marriage to Priscilla, these three children cannot be legitimated nor in any way be considered legitimate since at the time they were born, there was an existing valid marriage between respondent and his first wife, Teresita B. Tabiliran. The applicable legal provision in the case at bar is Article 269 of the Civil Code of the Philippines (R.A. 386 as amended) which provides:ARTICLE 269. Only natural children can be legitimated. Children born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other, are natural.Legitimation is limited to natural children and cannot include those born of adulterous relations (Ramirez vs. Gmur, 42 Phil. 855). The Family Code (Executive Order No. 209), which took effect on August 3, 1988, reiterated the above-mentioned provision thus:ARTICLE 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.The reasons for this limitation are given as follows:

1) The rationale of legitimation would be destroyed;

2) It would be unfair to the legitimate children in terms of successional rights;

3) There will be the problem of public scandal, unless social mores change;

4) It is too violent to grant the privilege of legitimation to adulterous children as it will destroy the sanctity of marriage;

5) It will be very scandalous, especially if the parents marry many years after the birth of the child. (The Family Code, p. 252, Alicia V. Sempio Diy).

It is clear, therefore, that no legal provision, whether old or new, can give refuge to the deceitful actuations of the respondent.It is also erroneous for respondent to state that his first wife Teresita disappeared in 1966 and has not been heard from since then. It appears that on December 8, 1969, Teresita filed a complaint against respondent entitled, Tabiliran vs. Tabiliran (A.C. No. 906) which was decided by this Court in 1982. In the said case, respondent was sued for abandonment of his family home and for living with another woman with whom he allegedly begot a child. Respondent was, however, exonerated because of the failure of his wife to substantiate the charges. However, respondent was reprimanded for having executed a "Deed of Settlement of Spouses To Live Separately from Bed," with a stipulation that they allow each of the other spouse to live with another man or woman as the case may be, without the objection and intervention of the other. It was also in the same case where respondent declared that he has only two children, namely, Reynald Antonio and Jose III, both surnamed Tabiliran, who are his legitimate issues. Thus, his statements in his affidavits marked as Exhs. "M-4" and "O-4" that Saturn and Venus are his third and second children respectively, are erroneous, deceitful, misleading and detrimental to his legitimate children.With respect to the charge of corruption, We agree with the findings of the Investigating Judge that respondent should be found culpable for two counts of corruption: (1) acting as Notary Public; and (2) collecting legal fees in preparing an Affidavit of Desistance of a case in his court.Respondent himself admitted that he prepared and notarized the documents (Annexes "C", "D", "E", "F" and "G") wherein he charged notarial fees. Though he was legally allowed to notarize documents and charge fees therefor due to the fact that there has been no Notary Public in the


town of Manukan, this defense is not sufficient to justify his otherwise corrupt and illegal acts.Section 252 of the Notarial Law expressly provides thus:SECTION 252. Compensation of Notaries Public. — No fee, compensation, or reward of any sort, except such as is expressly prescribed and allowed by law, shall be collected or received for any service rendered by a notary public. Such money collected by notaries public proper shall belong to them personally. Officers acting as notaries public ex-officio shall charge for their services the fees prescribed by law and account therefor as for Government funds. (Notarial Law, Revised Administrative Code of the Philippines, p. 202.) LLcd

Respondent's failure to properly account and turn over the fees collected by him as Ex-Officio notary to the municipal government as required by law raises the presumption that he had put such fund to his personal use.With respect to the charge that respondent prepared an Affidavit of Desistance in a rape case filed before his sala for which he collected the amount of P500.00 from the complainant therein, respondent merely denied the said imputation but failed to offer any evidence to support such denial. Denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary value over the testimony of credible witnesses who testify on affirmative matters (People v. Amaguin, 229 SCRA 166). It is unfortunate that respondent had failed to adhere to, and let this remind him once again of Canon 2 of the Code of Judicial Conduct, to wit: Canon 2A judge should avoid impropriety and the appearance of impropriety in all activities.

WHEREFORE, the Court finds respondent Judge Jose C. Tabiliran, Jr. guilty of gross immorality, deceitful conduct and corruption and, consequently, orders his dismissal from the service. Such dismissal shall carry with it cancellation of eligibility, forfeiture of leave credits and retirement benefits, and disqualification from re-employment in the government-service, all without prejudice to criminal or civil liability.SO ORDERED. LlibrisNarvasa, C.J ., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Hermosisima, Jr., JJ., concur.

Panganiban, J., took no part.

EN BANC[G.R. No. L-18753. March 26, 1965.]

VICENTE B. TEOTICO, petitioner-appellant, vs. ANA DEL VAL CHAN, ETC., oppositor-appellant.

Antonio Gonzales for petitioner-appellants.J. C. Zulueta, G.D. David & N.J. Quisumbing for

oppositor-appellee.

SYLLABUS1. CITIZENSHIP; NATURALIZATION; ALIEN WIFE OF CITIZEN NOT AUTOMATICALLY CITIZEN BUT MUST PROVE COMPLIANCE WITH REQUIREMENTS. — The alien wife of a Filipino citizen does not automatically become a Philippine citizen upon her husband's naturalization. She must first prove that she has all the qualifications required by Section 2 and none of the disqualifications enumerated in Section 4 of the Naturalization Law before she may be deemed a Philippine citizen.

2. ID.; ID.; ID.; REASON FOR RULE; POLICY OF SELECTIVE ADMISSION TO PHILIPPINE CITIZENSHIP. — The rule laid down by this Court in this and in other cases heretofore decided is believed to be in line with the national policy of selective admission to Philippine citizenship which after all is a privilege granted only to those who are found worthy thereof, and not indiscriminately to anybody at all on the basis alone of marriage to a man who is a citizen of the Philippines, irrespective of moral character, ideological belief, and identification with Filipino ideals, customs and traditions.

D E C I S I O NBAUTISTA ANGELO, J p:Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in the City of Manila leaving properties worth P600,000.00. She left a will written in Spanish which she executed at her residence in No. 2 Legarda St., Quiapo, Manila. She affixed her signature at the bottom of the will and on the left margin of each and every page thereof in the presence of Pilar Borja, Pilar G. Sanchez, and Modesto Formilleza, who in turn affixed their signatures below the attestation clause and on the left margin of each and every page of the will in the presence of the testatrix and of each other. Said will was acknowledged before Notary Public Niceforo S. Agaton by the testatrix and her witnesses.

In said will the testatrix made the following preliminary statement: that she was possessed of the full use of her mental faculties; that she was free from illegal pressure or influence of any kind from the beneficiaries of the will and from any influence of fear or threat; that she freely and


spontaneously executed said will and that she had neither ascendants nor descendants of any kind such that she could dispose of all her estate.

Among the many legacies and devises made in the will was one of P20,000.00 to Rene A. Teotico, married to the testatrix's niece named Josefina Mortera. To said spouses the testatrix left the usufruct of her interest in the Calvo building, while the naked ownership thereof she left in equal parts to her grandchildren who are the legitimate children of said spouses. The testatrix also instituted Josefina Mortera as her sole and universal heir to all the remainder of her properties not otherwise disposed of in the will.

On July 17, 1955, Vicente B. Teotico filed a petition for the probate of the will before the Court of First Instance of Manila which was set for hearing on September 3, 1955 after the requisite publication and service to all parties concerned.

Ana del Val Chan, claiming to be an adopted child of Francisca Mortera, a deceased sister of the testatrix, as well as an acknowledged natural child of Jose Mortera, a deceased brother of the same testatrix, filed on September 2, 1955 an opposition to the probate of the will alleging the following grounds: (1) said will was not executed as required by law; (2) the testatrix was physically and mentally incapable to execute the will at the time of its execution; and (3) the will was executed under duress, threat or influence of fear.

Vicente B. Teotico filed a motion to dismiss the opposition alleging that the oppositor had no legal personality to intervene. The probate court, after due hearing, allowed the oppositor to intervene as an adopted child of Francisco Mortera, and on June 17, 1959, the oppositor amended her opposition by alleging the additional ground that the will is inoperative as to the share of Dr. Rene Teotico because the latter was the physician who took care of the testatrix during her last illness.

After the parties had presented their evidence, the probate court rendered its decision on November 10, 1960 admitting the will to probate but declaring the disposition made in favor of Dr. Rene Teotico void with the statement that the portion to be vacated by the annulment should pass to the testatrix's heirs by way of intestate succession.

Petitioner Teotico, together with the universal heir Josefina Mortera, filed a motion for reconsideration of that part of the decision which declares the portion of the estate to be vacated

by the nullity of the legacy made to Dr. Rene Teotico as passing to the legal heirs, while the oppositor filed also a motion for reconsideration of the portion of the judgment which decrees the probate of the will. On his part, Dr. Rene Teotico requested leave to intervene and to file a motion for reconsideration with regard to that portion of the decision which nullified the legacy made in his favor.

The motions for reconsideration above adverted to having been denied, both petitioner and oppositor appealed from the decision, the former from that portion which nullifies the legacy in favor of Dr. Rene Teotico and declares the vacated portion as subject of succession in favor of the legal heirs, and the latter from that portion which admits the will to probate. And in this instance both petitioner and oppositor assign several error which, stripped of non-essentials, may be boiled down to the following: (1) Has oppositor Ana del Val Chan the right to intervene in this proceeding?; (2) Has the will in question been duly admitted to probate?; and (3) Did the probate court commit an error in passing on the intrinsic validity of the provisions of the will and in determining who should inherit the portion to be vacated by the nullification of the legacy made in favor of Dr. Rene Teotico?

These issues will be discussed separately.

1. It is a well-settled rule that in order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate (Ngo The Hua vs. Chung Kiat Hua, et al., L-17091, September 30, 1963); and an interested party has been defined as one who would be benefitted by the estate such as an heir or one who has a claim against the estate like a creditor (Idem.). On the other hand, in Saguinsin vs. Lindayag, et al., L-17750, December 17, 1962, this Court said:

"According to Section 2, Rule 80 of the Rules of Court, a petition for letters of administration must be filed by an 'interested person.' An interested party has been defined in this connection as one who would be benefitted by the estate, such as an heir, or one who has a claim against the estate, such as a creditor (Intestate Estate of Julio Magbanwa 40 O.G., 1171). And it is well settled in this jurisdiction that in civil actions as well as special proceedings, the interest required in order that a person may be a party thereto must be material and direct, and not merely indirect or contingent. (Trillana vs. Crisostomo, G. R. No. L-


3370, August 22, 1951; Rapinosa vs. Barrion, 70 Phil. 311)."

The question now may be asked: Has oppositor any interest in any of the provisions of the will, and, in the negative, would she acquire any right to the estate in the event that the will is denied probate?

Under the terms of the will, oppositor has no right to intervene because she has no interest in the estate either as heir, executor, or administrator, nor does she have any claim to any property affected by the will, because it nowhere appears therein any provision designating her as heir, legatee or devisee of any portion of the estate. She has also no interest in the will either as administratrix or executrix. Neither has she any claim against any portion of the estate because she is not a co-owner thereof, and while she previously had an interest in the Calvo building located in Escolta, she had already disposed of it long before the execution of the will.

In the supposition that the will is denied probate, would the oppositor acquire any interest in any portion of the estate left by the testatrix? She would acquire such right only if she were a legal heir of the deceased, but she is not under our Civil Code. It is true that oppositor claims to be an acknowledged natural child of Jose Mortera, a deceased brother of the deceased, and also an adopted daughter of Francisca Mortera, a deceased sister of the testatrix, but such claim cannot give her any comfort for, even if it be true, the law does not give her any right to succeed to the estate of the deceased sister of both Jose Mortera and Francisca Mortera. And this is so because being an illegitimate child she is prohibited by law from succeeding to the legitimate relatives of her natural father. Thus, Article 992 of our Civil Code provides: "An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; . . ." And the philosophy behind this provision is well expressed in Grey vs. Fabie, 68 Phil., 128, as follows:

"'Between the natural child and the legitimate relatives of the father or mother who acknowledged it, the Code denies any right of succession. They cannot be called relatives and they have no right to inherit. Of course, there is a blood tie, but the law does not recognize it. In this, article 943 is based upon the reality of the facts and upon the presumptive will of the interested parties; the natural child is disgracefully looked down upon by the legitimate family; the legitimate family is, in turn, hated by the natural child; the latter considers the

privileged condition of the former and the resources of which it is thereby deprived; the former, in turn, sees in the natural child nothing but the product of sin, a palpable evidence of a blemish upon the family. Every relation is ordinarily broken in life; the law does no more them recognize this truth, by avoiding further grounds of resentment.' (7 Manresa, 3d ed., p. 110.)"

The oppositor cannot also derive comfort from the fact that she is an adopted child of Francisca Mortera because under our law the relationship established by adoption is limited solely to the adopter and the adopted does not extend to the relatives of the adopting parents or of the adopted child except only as expressly provided for by law. Hence, no relationship is created between the adopted and the collaterals of the adopting parents. As a consequence, the adopted is an heir of the adopter but not of the relatives of the adopter.

"The relationship established by the adoption, however, is limited to the adopting parent, and does not extend to his other relatives, except as expressly provided by law. Thus, the adopted child cannot be considered as a relative of the ascendants and collaterals of the adopting parents, nor of the legitimate children which they may have after the adoption, except that the law imposes certain impediments to marriage by reason of adoption. Neither are the children of the adopted considered as descendants of the adopter. The relationship created is exclusively between, the adopter and the adopted, and does not extend to the relatives of either." (Tolentino, Civil Code of the Philippines, Vol. 1, p. 652)

"Relationship by adoption is limited to adopter and adopted, and does not extend to other members of the family of either; but the adopted is prohibited to marry the children of the adopter to avoid scandal." (An Outline of Philippines Civil law by Justice Jose B. L, Reyes and Ricardo C. Puno, Vol. 1, p. 313; See also Caguioa, Comments and Cases on Civil law, 1955, Vol. 1, pp. 312-313; Paras, Civil Code of the Philippines, 1959 ed., Vol. 1, p. 515)

It thus appears that the oppositor has no right to intervene either as testamentary or as legal heir in this probate proceeding contrary to the ruling of the court a quo.

2. The next question to be determined is whether the will Exhibit A was duly admitted to probate. Oppositor claims that the same should not have been admitted not only because it was not properly attested to but also because it was


procured thru pressure and influence and the testatrix affixed her signature by mistake believing that it contained her true intent.

The claim that the will was not properly attested to is contradicted by the evidence of record. In this respect it is fit that we state briefly the declarations of the instrumental witnesses.

Pilar Borja testified that the testatrix was in perfect state of health at the time she executed the will for she carried her conversation with her intelligently; that the testatrix signed immediately above the attestation clause and on each and every page thereof at the left-hand margin in the presence of the three instrumental witnesses and the notary public; that it was the testatrix herself who asked her and the other witnesses to act as such; and that the testatrix was the first one to sign and later she gave the will to the witnesses who read and signed it.

Pilar G. Sanchez also testified that she knew the testatrix since 1945; that it was the testatrix herself who asked her to be a witness to the will; that the testatrix was the first one to sign and she gave the will later to the witnesses to sign and afterwards she gave it to the notary public; that on the day of the execution of the will the testatrix was in the best of health.

Modesto Formilleza also testified that he was asked by the testatrix to be one of the witnesses to the will; that he read and understood the attestation clause before he signed the document, and that all the witnesses spoke either in Spanish or in Tagalog. He finally said that the instrumental witnesses and the testatrix signed the will at the same time and place and identified their signatures.

This evidence which has not been successfully refuted proves conclusively, that the will was duly executed because it was signed by the testatrix and her instrumental witnesses and the notary public in the manner provided for by law.

The claim that the will was procured by improper pressure and influence is also belied by the evidence. On this point the court a quo made the following observation:

"The circumstance that the testatrix was then living under the same roof with Dr. Rene Teotico is no proof adequate in law to sustain the conclusion that there was improper pressure and undue influence. Nor is the alleged fact of isolation of the testatrix from the oppositor and her witnesses, for their supposed failure to see personally the testatrix, attributable to the

vehemence of Dr. Rene Teotico to exclude visitors, took place years after the execution of the will on May 17, 1951. Although those facts may have some weight to support the theory of the oppositor, yet they must perforce yield to the weightier fact that nothing could have prevented the testatrix, had she really wanted to, from subsequently revoking her 1951 will if it did not in fact reflect and express her own testamentary dispositions. For, as testified to by the oppositor and her witnesses, the testatrix was often seen at the Escolta, in Quiapo and in Sta. Cruz, Manila, walking and accompanied by no one. In fact, on different occasions, each of them was able to talk with her."

We have examined the evidence on the matter and we are fully in accord with the foregoing observation. Moreover, the mere claim that Josefina Mortera and her husband Rene Teotico had the opportunity to exert pressure on the testatrix simply because she lived in their house several years prior to the execution of the will and that she was old and suffering from hypertension in that she was virtually isolated from her friends for several years prior to her death is insufficient to disprove what the instrumental witnesses had testified that the testatrix freely and voluntarily and with full consciousness of the solemnity of the occasion executed the will under consideration. The exercise of improper pressure and undue influence must be supported by substantial evidence and must be of a kind that would overpower and subjugate the mind of the testatrix as to destroy her free agency and make her express the will of another rather than her own (Coso vs. Deza, 42 Phil., 596). The burden is on the person challenging the will that such influence was exerted at the time of its execution, a matter which here was not done, for the evidence presented not only is sufficient but was disproved by the testimony the instrumental witnesses.

3. The question of whether the probate court could determine the intrinsic validity of the provisions of a will has been decided by this Court in a long line of decisions among which the following may be cited:

"Opposition to the intrinsic validity or legality of the provisions of the will cannot be entertained in probate proceeding because its only purpose is merely to determine if the will has been executed in accordance with the requirements of the law." (Palacios vs. Palacios, 58 O.G. 220)

". . . The authentication of a will decides no other questions than such as touch upon the capacity


of the testator and the compliance with those requisites or solemnities which the law prescribes for the validity of wills. It does not determine nor even by implication prejudge the validity or efficiency of the provisions; these may be impugned as being vicious or null, notwithstanding its authentication. The questions relating to these points remain entirely unaffected, and may be raised even after the will has been authenticated. . . .

"From the fact that the legalization of a will does not validate the provisions therein contained, it does not follow that such provisions lack of efficiency, or fail to produce the effects which the law recognizes when they are not impugned by anyone. In the matter of wills it is a fundamental doctrine that the will of the testator is the law governing the interested parties, and must be punctually complied with in so far as it is not contrary to the law or to public morals." (Montañano vs. Suesa, 14 Phil., pp. 676, 679-680)

"To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625.) The judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid." Castañeda vs. Alemany, 3 Phil., 426, 428)

Pursuant to the foregoing precedents the pronouncement made by the court a quo declaring invalid the legacy made to Dr. Rene Teotico in the will Exhibit A must be set aside as having been made in excess of its jurisdiction. Another reason why said pronouncement should be set aside is that the legatee was not given an opportunity to defend the validity of the legacy for he was not allowed to intervene in this proceeding. As a corollary, the other pronouncements, touching on the disposition of the estate in favor of some relatives of the deceased should also be set aside for the same reason.

WHEREFORE, with the exception of that portion of the decision which declares that the will in question has been duly executed and admitted the same to probate, the rest of the decision is hereby set aside. This case is ordered remanded to the court a quo for further proceedings. No pronouncement as to costs.

Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Paredes, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

Dizon, J., took no part.

FIRST DIVISION[G.R. Nos. 168992-93. May 21, 2009.]

IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM, MONINA P. LIM, petitioner.

IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM, MONINA P. LIM, petitioner.

D E C I S I O NCARPIO, J p:The CaseThis is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the Decision 1 dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P. Lim.

The FactsThe following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she married Primo Lim (Lim). They were childless. Minor children, whose parents were unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child of their own, petitioner and Lim registered the children to make it appear that they were the children's parents. The children 2 were named Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March 1977. 3 Michael was 11 days old when Ayuban brought him to petitioner's clinic. His date of birth is 1 August 1983. 4

The spouses reared and cared for the children as if they were their own. They sent the children to exclusive schools. They used the surname "Lim" in all their school records and documents. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner married Angel Olario (Olario), an American citizen. TcICEA

Thereafter, petitioner decided to adopt the children by availing of the amnesty 5 given under Republic Act No. 8552 6 (RA 8552) to those individuals who simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the petitions for adoption, Michelle


was 25 years old and already married, while Michael was 18 years and seven months old.

Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of Consent. 7 Michael also gave his consent to his adoption as shown in his Affidavit of Consent. 8 Petitioner's husband Olario likewise executed an Affidavit of Consent 9 for the adoption of Michelle and Michael.

In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was considered as an abandoned child and the whereabouts of her natural parents were unknown. 10 The DSWD issued a similar Certification for Michael. 11

The Ruling of the Trial CourtOn 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled that since petitioner had remarried, petitioner should have filed the petition jointly with her new husband. The trial court ruled that joint adoption by the husband and the wife is mandatory citing Section 7 (c), Article III of RA 8552 and Article 185 of the Family Code.

Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated 16 June 2005. In denying the motion, the trial court ruled that petitioner did not fall under any of the exceptions under Section 7 (c), Article III of RA 8552. Petitioner's argument that mere consent of her husband would suffice was untenable because, under the law, there are additional requirements, such as residency and certification of his qualification, which the husband, who was not even made a party in this case, must comply.

As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint exercise of parental authority, the trial court ruled that joint adoption is not only for the purpose of exercising parental authority because an emancipated child acquires certain rights from his parents and assumes certain obligations and responsibilities.

Hence, the present petition. DEAaIS

IssuePetitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has remarried, can singly adopt.

The Court's RulingPetitioner contends that the rule on joint adoption must be relaxed because it is the duty of the

court and the State to protect the paramount interest and welfare of the child to be adopted. Petitioner argues that the legal maxim "dura lex sed lex" is not applicable to adoption cases. She argues that joint parental authority is not necessary in this case since, at the time the petitions were filed, Michelle was 25 years old and already married, while Michael was already 18 years of age. Parental authority is not anymore necessary since they have been emancipated having attained the age of majority.

We deny the petition.

Joint Adoption by Husband and WifeIt is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the petitions by herself, without being joined by her husband Olario. We have no other recourse but to affirm the trial court's decision denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads:

SEC. 7. Who May Adopt. — The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, further, That the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following:


(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouses; or(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. IcHTED

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or(iii) if the spouses are legally separated from each other.In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. (Emphasis supplied)

The use of the word "shall" in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses. 12

The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground.

Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally separated from each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain requirements

that Olario must comply being an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must have been living in the Philippines for at least three continuous years prior to the filing of the application for adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the adopter's country as the latter's adopted child. None of these qualifications were shown and proved during the trial.

These requirements on residency and certification of the alien's qualification to adopt cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the legitimate children of petitioner.

Effects of AdoptionPetitioner contends that joint parental authority is not anymore necessary since the children have been emancipated having reached the age of majority. This is untenable.

Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. 13 The father and the mother shall jointly exercise parental authority over the persons of their common children. 14 Even the remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. 15

It is true that when the child reaches the age of emancipation — that is, when he attains the age of majority or 18 years of age 16 — emancipation terminates parental authority over the person and property of the child, who shall then be qualified and responsible for all acts of civil life. 17 However, parental authority is merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the effects of adoption, thus:

ARTICLE VEFFECTS OF ADOPTIONSEC. 16. Parental Authority. — Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s).SEC. 17. Legitimacy. — The adoptee shall be considered the legitimate son/daughter of the


adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family.SEC. 18. Succession. — In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.

Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child, including but not limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of the adopter and adoptee to be legal and compulsory heirs of each other. 18 Therefore, even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights 19 of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled 20 such as support 21 and successional rights. 22 DSETac

We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family, as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law. 23 But, as we have ruled in Republic v. Vergara: 24

We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children. Accordingly, the law should be construed liberally, in a manner that

will sustain rather than defeat said purpose. The law must also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide homes, love, care and education for less fortunate children. Regrettably, the Court is not in a position to affirm the trial court's decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating the proscription against judicial legislation. Until such time however, that the law on the matter is amended, we cannot sustain the respondent-spouses' petition for adoption. (Emphasis supplied)

Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her husband. We cannot make our own legislation to suit petitioner.Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible because Olario has filed a case for dissolution of his marriage to petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is a judicial decree for the dissolution of the marriage between petitioner and Olario, the marriage still subsists. That being the case, joint adoption by the husband and the wife is required. We reiterate our ruling above that since, at the time the petitions for adoption were filed, petitioner was married to Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner.SO ORDERED. HcTSDaPuno, C.J., Corona, Leonardo-de Castro and Bersamin, JJ., concur.


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Family Code Art 177-180 Cases