Jurisprudence: G.R. No. 157977 February 27, 2006

EN BANC

G.R. No. 157977             February 27, 2006

EDUARDO TOLENTINO RODRIGUEZ and IMELDA GENER RODRIGUEZ, Petitioners,
vs.
THE HONORABLE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF MANILA – BRANCH 17, GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the Philippine Department of Justice, and DIRECTOR OF NATIONAL BUREAU OF INVESTIGATION, Respondents.

D E C I S I O N

QUISUMBING, J.:

Before us is a special civil action for certiorari and prohibition directed against the Orders dated May 7, 2003 and May 9, 20032 of the Regional Trial Court of Manila, Branch 17 in Case No. 01-190375, which cancelled the bail of petitioners and denied their motion for reconsideration, respectively.

The case stemmed from the petition for extradition filed on March 12, 2001 by the Government of the United States of America (US government) through the Department of Justice (DOJ) against the petitioners.

After their arrest, petitioners applied for bail which the trial court granted on September 25, 2001. The bail was set for one million pesos for each. Petitioners then posted cash bonds. The US government moved for reconsideration of the grant of bail, but the motion was denied by the trial court. Unsatisfied, the US government filed a petition for certiorari with this Court, entitled Government of the United States of America, represented by the Philippine Department of Justice v. Hon. Rodolfo A. Ponferrada, etc., et al., and docketed as G.R. No. 151456.

Thereafter, we directed the trial court to resolve the matter of bail which, according to its November 28, 2001 Order, shall be subject to whatever ruling that this Court may have in the similar case of Mark Jimenez entitled Government of the United States of America v. Purganan, docketed as G.R No. 148571. In compliance with our directive, the trial court, without prior notice and hearing, cancelled the cash bond of the petitioners and ordered the issuance of a warrant of arrest, to wit:

Accordingly, following the En Banc Decision of the Supreme Court in G.R. No. 148571 dated September 24, 2002 to the effect that extraditees are not entitled to bail while the extradition proceedings are pending…’ (page 1, En Banc Decision in G.R. No. 148571), let a warrant of arrest issue against the herein respondents sans any bail, for implementation by the Sheriff or any member of any law enforcement agency in line with Section 19 of Presidential Decree No. 1069.

IT IS SO ORDERED.

Petitioners filed a very urgent motion for the reconsideration of the cancellation of their bail. The motion was heard and denied on May 9, 2003.
Having no alternative remedy, petitioners filed the present petition on the following grounds:

I

…THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION IN CANCELLING THE BAIL OF HEREIN PETITIONERS WITHOUT PRIOR NOTICE AND HEARING OF ITS CANCELLATION.

II

…THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT CONSIDERING CERTAIN SPECIAL CIRCUMSTANCES ATTENDANT TO THE PRESENT CASE, AS AN EXCEPTION TO THE GENERAL RULE OF "NO-BAIL" IN EXTRADITION CASES WHEN PETITIONERS’ CASH BAIL WAS UNILATERALLY CANCELLED.

III

…THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE WARRANT OF ARREST WITHOUT CONSIDERING THE HEREIN PETITIONERS’ SPECIAL CIRCUMSTANCE OF VOLUNTARY EXTRADITION PRIOR TO CANCELLING THEIR CASH BAIL.

Once again we face the controversial matter of bail in extradition cases. We are asked to resolve twin issues: First, in an extradition case, is prior notice and hearing required before bail is cancelled? Second, what constitutes a "special circumstance" to be exempt from the no-bail rule in extradition cases?

Petitioners assert that their bail cannot be cancelled without due process of law. By way of analogy, they point to Rule 114, Section 218 of the Rules of Court where the surety or bonding company is required to be notified and allowed to show cause why the bail bond should not be cancelled. They say that if the rules grant this opportunity to surety and bonding companies, the more reason then that in an extradition case the same should be afforded.

Petitioners also contend that this Court’s directive in G.R. No. 151456 did not in any way authorize the respondent court to cancel their bail. Petitioners aver that respondent court should have first determined the facts to evaluate if petitioners were entitled to continuance of their bail, e.g. their willingness to go on voluntary extradition, which respondent court should have considered a special circumstance.

Respondents, for their part, argue that prior notice and hearing are not required to cancel petitioners’ bail, and the issuance of a warrant of arrest ex parte against an extraditee is not a violation of the due process clause. Further, respondents maintain that prior notice and hearing would defeat the purpose of the arrest warrant since it could give warning that respondents would be arrested and even encourage them to flee.

Besides, even granting that prior notice and hearing are indeed required, respondents contend that petitioners had been effectively given prior notice and opportunity to be heard, because the trial court’s order clearly stated that the matter of bail shall be subject to whatever ruling the Supreme Court may render in the similar extradition case of Government of the United States of America v. Purganan.9 Petitioners did not contest the aforementioned order. Respondents declare that petitioners were likewise notified of this Court’s directives to the trial court to resolve the matter of their bail.

More significantly, petitioners claim that their bail should not have been cancelled since their situation falls within the exception to the general rule of no-bail. They allege that their continuous offer for voluntary extradition is a special circumstance that should be considered in determining that their temporary liberty while on bail be allowed to continue. They cite that petitioner Eduardo is in fact already in the United States attending the trial. They also have not taken flight as fugitives. Besides, according to petitioners, the State is more than assured they would not flee because their passports were already confiscated and there is an existing hold-departure order against them. Moreover, petitioners assert, they are not a danger to the community.

Respondents counter that petitioner Imelda Gener Rodriguez did not show her good faith by her continued refusal to appear before the respondent court. Further, the reasons of petitioners do not qualify as compelling or special circumstances. Moreover, the special circumstance of voluntary surrender of petitioner Eduardo is separate and distinct from petitioner Imelda’s.

Additionally, respondents maintain that the ruling in the case of Atong Ang has no applicability in the instant case. Ang’s bail was allowed because the English translation of a testimony needed to determine probable cause in Ang’s case would take time. This special circumstance is not attendant in this case.

The issue of prior notice and hearing in extradition cases is not new. In Secretary of Justice v. Lantion, by a vote of nine to six, we initially ruled that notice and hearing should be afforded the extraditee even when a possible extradition is still being evaluated. The Court, deliberating on a motion for reconsideration also by a vote of nine to six, qualified and declared that prospective extraditees are entitled to notice and hearing only when the case is filed in court and not during the process of evaluation.

In the later case of Purganan, eight justices concurred that a possible extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest while six others dissented.

Now, we are confronted with the question of whether a prospective extraditee is entitled to notice and hearing before the cancellation of his or her bail.

The issue has become moot and academic insofar as petitioner Eduardo Rodriguez is concerned. He is now in the USA facing the charges against him. But co-petitioner Imelda Gener Rodriguez is here and stands on a different footing. We agree that her bail should be restored.

In Purganan, we said that a prospective extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest, because notifying him before his arrest only tips him of his pending arrest. But this is for cases pending the issuance of a warrant of arrest, not in a cancellation of a bail that had been issued after determination that the extraditee is a no-flight risk. The policy is that a prospective extraditee is arrested and detained to avoid his flight from justice. On the extraditee lies the burden of showing that he will not flee once bail is granted. If after his arrest and if the trial court finds that he is no flight risk, it grants him bail. The grant of the bail, presupposes that the co-petitioner has already presented evidence to prove her right to be on bail, that she is no flight risk, and the trial court had already exercised its sound discretion and had already determined that under the Constitution and laws in force, co-petitioner is entitled to provisional release.

Under these premises, and with the trial court’s knowledge that in this case, co-petitioner has offered to go on voluntary extradition; that she and her husband had posted a cash bond of P1 million each; that her husband had already gone on voluntary extradition and is presently in the USA undergoing trial; that the passport of co-petitioner is already in the possession of the authorities; that she never attempted to flee; that there is an existing hold-departure order against her; and that she is now in her sixties, sickly and under medical treatment, we believe that the benefits of continued temporary liberty on bail should not be revoked and their grant of bail should not be cancelled, without the co-petitioner being given notice and without her being heard why her temporary liberty should not be discontinued.

We emphasize that bail may be granted to a possible extraditee only upon a clear and convincing showing (1) that he will not be a flight risk or a danger to the community, and (2) that there exist special, humanitarian and compelling circumstances.

The trial court’s immediate cancellation of the bail of petitioners is contrary to our ruling in Purganan, and it had misread and misapplied our directive therein.

Now, was the order to issue warrant of arrest against petitioners and to cancel the bail of extraditees a grave abuse of discretion of the trial court?

Grave abuse of discretion is capricious or whimsical exercise of judgment that is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law.18 In our view, the cancellation of co-petitioner’s bail, without prior notice and hearing, could be considered a violation of co-petitioner’s right to due process tantamount to grave abuse of discretion.

Finally, considering that remanding the case to the court a quo will only delay the final resolution of the case as in all probability it would only end up with us again, we will decide if Imelda’s bail was validly cancelled.

In Purganan, we held also that the grounds used by the highest court in the requesting state for the grant of bail may be considered, under the principle of reciprocity.

Considering that she has not been shown to be a flight risk nor a danger to the community, she is entitled to notice and hearing before her bail could be cancelled. Based on the record, we find that, absent prior notice and hearing, the bail’s cancellation was in violation of her right to due process.

WHEREFORE, the instant petition is GRANTED IN PART. The Orders dated May 7, 2003 and May 9, 2003 of the Regional Trial Court of Manila, Branch 17 in Case No. 01-190375 are REVERSED and SET ASIDE, as far as petitioner IMELDA GENER RODRIGUEZ is concerned. We hereby (1) declare IMELDA GENER RODRIGUEZ entitled to bail, (2) order her cancelled bail restored, and (3) order the warrant for her arrest revoked.

SO ORDERED.

Jurisprudence: G.R. No. L-29276 May 18, 1978

SECOND DIVISION

G.R. No. L-29276 May 18, 1978

Testate Estate of the Late Felix J. de Guzman. VICTORINO G. DE GUZMAN, administrator-appellee,

vs.

CRISPINA DE GUZMAN-CARILLO, ARSENIO DE GUZMAN and HONORATA DE GUZMAN-MENDIOLA, oppositors-appellants.

Emiliano Samson & R. Balderama-Samson for appellants.

Cezar Paralejo for appellee.

AQUINO, J.:

This case is about the propriety of allowing as administration expenses certain disbursements made by the administrator of the testate estate of the late Felix J. de Guzman of Gapan, Nueva Ecija.

The deceased testator was survived by eight children named Victorino, Librada, Severino, Margarita, Josefina, Honorata, Arsenio and Crispina. His will was duly probated. Letters of administration were issued to his son, Doctor Victorino G. de Guzman, pursuant to the order dated September 17, 1964 of the Court of First Instance of Nueva Ecija in Special Proceeding No. 1431.

One of the properties left by the decedent was a residential house located in the poblacion. In conformity with his last will, that house and the lot on which it stands were adjudicated to his eight children, each being given a one-eighth proindiviso share in the project of partition dated March 19, 1966, which was signed by the eight heirs and which was approved in the lower court's order of April 14, 1967 but without prejudice to the final outcome of the accounting.

The administrator submitted four accounting reports for the period from June 16, 1964 to September, 1967. Three heirs Crispina de Guzmans-Carillo Honorata de Guzman-Mendiola and Arsenio de Guzman interposed objections to the administrator's disbursements in the total sum of P13,610.48, broken down as follows:

I. Expense for the improvement and renovation of the decedent's residential house.

1. Construction of fence — P3,082.07

2. Renovation of bathroom — P1,389.52

3. Repair of terrace and

interior of house — P5,928.00 — P10,399.59

II. Living expenses of Librada de Guzman while occupying the family home without paying rent:

1. For house helper — P1,170.00

2. Light bills — 227.41

3. Water bills — 150.80

4. Gas oil, floor wax

and switch nail — 54.90 — P 1,603.11

III. Other expenses:

1. Lawyer's subsistence — P 19.30

2. Gratuity pay in lieu

of medical fee — 144.00

3. For stenographic notes — 100.00

4. For food served on

decedent's first

death anniversary — 166.65

5. Cost of publication of

death anniversary

of decedent — 102.00

6. Representation

expenses — 26.25 — P558.20

IV. Irrigation fee P1.049.58

TOTAL P13,610.48

It should be noted that the probate court in its order of August 29, 1966 directed the administrator "to refrain from spending the assets of the estate for reconstructing and remodeling the house of the deceased and to stop spending (sic) any asset of the estate without first during authority of the court to do so" (pp. 26-27, Record on Appeal).

The lower court in its order of April 29, 1968 allowed the d items as legitimate expenses of administration. From that order, the three oppositors appealed to this Court. Their contention is that the probate court erred in approving the utilization of the income of the estate (from rice harvests) to defray those expenditures which allegedly are not allowable under the Rules of Court.

An executor or administrator is allowed the necessary expenses in the care, management, and settlement of the estate. He is entitled to possess and manage the decedent's real and personal estate as long as it is necessary for the payment of the debts and the expenses of administration. He is accountable for the whole decedent's estate which has come into his possession, with all the interest, profit, and income thereof, and with the proceeds of so much of such estate as is sold by him, at the price at which it was sold (Sec. 3, Rule 84; Secs. 1 and 7, Rule 85, Rules of Court).

One of the Conditions of the administrator's bond is that he should render a true and just account of his administration to the court. The court may examine him upon oath With respect to every matter relating to his accounting 't and shall so examine him as to the correctness of his account before the same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof. The heirs, legatees, distributes, and creditors of the estate shall have the same privilege as the executor or administrator of being examined on oath on any matter relating to an administration account." (Sec. 1[c] Rule 81 and secs. 8 and 9, Rule 85, Rules of Court).

A hearing is usually held before an administrator's account is approved, especially if an interested Party raises objections to certain items in the accounting report (Sec. 10, Rule 85).

At that hearing, the practice is for the administrator to take the witness stand, testify under oath on his accounts and Identify the receipts, vouchers and documents evidencing his disbursements which are offered as exhibits. He may be interrogated by the court and crossed by the oppositors's counsel. The oppositors may present proofs to rebut the ad. administrator's evidence in support of his accounts.

I. Expenses for the renovation and improvement of the family residence — P10,399.59. — As already shown above, these expenses consisted of disbursements for the repair of the terrace and interior of the family home, the renovation of the bathroom, and the construction of a fence. The probate court allowed those expenses because an administrator has the duty to "maintain in tenantable repair the houses and other structures and fences belonging to the estate, and deliver the same in such repair to the heirs or devises" when directed to do so by the court (Sec. 2, Rule 84, Rules of Court).

On the other hand, the oppositors-appellants contend that the trial court erred in allowing those expenses because the same did not come within the category of necessary expenses of administration which are understood to be the reasonable and necessary expenses of caring for the property and managing it until the debts are paid and the estate is partitioned and distributed among the heirs (Lizarraga Hermanos vs. Abada, 40 Phil. 124).

As clarified in the Lizarraga case, administration expenses should be those which are necessary for the management of the estate, for protecting it against destruction or deterioration, and, possibly, for the production of fruits. They are expenses entailed for the preservation and productivity of the estate and its management for purposes of liquidation, payment of debts, and distribution of the residue among the persons entitled thereto.

It should be noted that the family residence was partitioned proindiviso among the decedent's eight children. Each one of them was given a one-eighth share in conformity with the testator's will. Five of the eight co-owners consented to the use of the funds of the estate for repair and improvement of the family home. It is obvious that the expenses in question were incurred to preserve the family home and to maintain the family's social standing in the community.

Obviously, those expenses redounded to the benefit of an the co- owners. They were necessary for the preservation and use of the family residence. As a result of those expenses, the co-owners, including the three oppositors, would be able to use the family home in comfort, convenience and security.

We hold that the probate court did not err in approving the use of the income of the estate to defray those ex

II.  Expenses incurred by Librada de Guzman as occupant of the family residence without paying rent — P1 603.11 — The probate court allowed the income of the estate to be used for those expenses on the theory that the occupancy of the house by one heir did not deprive the other seven heirs from living in it. Those expenses consist of the salaries of the house helper, light and water bills, and the cost of gas, oil floor wax and switch nail

We are of the opinion that those expenses were personal expenses of Librada de Guzman, inuring to her benefit. Those expenses, not being reasonable administration expenses incurred by the administrator, should not be charged against the income of the estate.

Librada de Guzman, as an heir, is entitled to share in the net income of the estate. She occupied the house without paying rent. She should use her income for her living expenses while occupying the family residence.

The trial court erred in approving those expenses in the administrator's accounts. They should be, as they are hereby, disallowed (See 33 C.J.S 1239-40).

III. Other expenses — P558.20. — Among these expenses is the sum of P100 for stenographic notes which, as admitted by the administrator on page 24 of his brief, should be disallowed. Another item, "representation expenses" in the sum of P26.25 (2nd accounting), was not explained. it should likewise be disallowed.

The probate court erred in allowing as expenses of administration the sum of P268.65 which was incurred during the celebration of the first death anniversary of the deceased. Those expenses are disallowed because they have no connection with the care, management and settlement of the decedent's estate (Nicolas vs. Nicolas 63 Phil 332).

The other expenses, namely, P19.30 for the lawyer's subsistence and P144 as the cost of the gift to the physician who attended to the testator during his last are allowable expenses.

IV. Irrigation fee — P1,049.58. —The appellants question the deductibility of that expense on the ground that it seems to be a duplication of the item of P1,320 as irrigation fee for the same 1966-67 crop-year.

The administrator in his comment filed on February 28, 1978 explained that the item of P1,320 represented the "allotments" for irrigation fees to eight tenants who cultivated the Intan crop, which allotments were treated as "assumed expenses" deducted as farming expenses from the value of the net harvests.

The explanation is not quite clear but it was not disputed by the appellants. The fact is that the said sum of P1,049.58 was paid by the administrator to the Penaranda Irrigation System as shown in Official Receipt No. 3596378 dated April 28, 1967. It was included in his accounting as part of the farming expenses. The amount was properly allowed as a legitimate expense of administration.

WHEREFORE, the lower court's order of April 29, 1968 is affirmed with the modifications that the sum of (a) P1,603.11 as the living expenses of Librada de Guzman. (b) P100 for stenographic notes, (c) P26.25 as representation expenses, and (d) P268.65 as expenses for the celebration of the first anniversary of the decedent's death are disallowed in the administrator's accounts. No costs.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio, Concepcion, Jr., and Santos, JJ., concur.

US Jurisprudence: Morgan v. Commissioner 309 U.S. 78 (1940)

Morgan v. Commissioner

309 U.S. 78 (1940)

U.S. Supreme Court

Morgan v. Commissioner, 309 U.S. 78 (1940)

Morgan v. Commissioner

No. 210

Argued January 4, 5, 1940

Decided January 29, 1940

309 U.S. 78

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Syllabus

A decedent in Wisconsin exercised a power of appointment over property held in trusts created under the law of that State. The trusts empowered the trustees to withhold from any beneficiary property which, in their judgment, would be dissipated. or be improvidently handled, and gave directions for disposition, in such event, of what was withheld.

Held:

1. That the power exercised was a "general power of appointment" within § 302(f) of the Revenue Act of 1926, whatever its characterization -- whether "general" or "special" -- by the Wisconsin law. P. 309 U. S. 80.

State law creates legal interests and rights. The federal Revenue Acts designate what interests or rights, so created, shall be taxed.

2. The term "general power of appointment," as used in the federal Revenue Acts, applies where the donee may appoint to any person he chooses, including his own estate or his creditors. P. 309 U. S. 81.

This accords with common acceptation and with administrative construction approved by Congressional reenactments of the provisions construed.

3. Assuming that the trustees could withhold the appointed property from an appointee, the power must still be held general. The important consideration is the breadth of the control in the donee of the power, whatever the nature or extent of the appointee's interest. P. 309 U. S. 82.

103 F.2d 636 affirmed.

Certiorari, 308 U.S. 534, to review an affirmance by the court below of a decision of the Board of Tax Appeals (36 B.T.A. 588), approving a deficiency assessment.

Page 309 U. S. 79

MR. JUSTICE ROBERTS, delivered the opinion of the Court.

We took this case because it raises an important question as to the construction of the Revenue Act of 1926, § 302(f), amended by the Revenue Act of 1932, § 803(b).

The question is to what extent and in what sense the law of the decedent's domicile governs in determining whether a power of appointment exercised by him is a general power within the meaning of the statute.

The petitioner is the executor of Elizabeth S. Morgan, who was the donee of two powers of appointment over property held in two trusts created by her father by will and by deed. The persons named are, or were at death, citizens of Wisconsin. It is unnecessary to recite the terms of the trusts. Suffice it to say that, under each, property remaining in the trustees' hands for Elizabeth S. Morgan was given, at her death, to the appointee or appointees named in her will, with gifts over in case she failed to appoint. Under both trusts, if in the judgment

Page 309 U. S. 80

of the trustees, property going to any beneficiary would be dissipated for any reason, or improvidently handled, the trustees were to withhold any part of such property, with directions for disposition, in such event, of what was withheld. The decedent appointed in favor of her husband.

The Commissioner ruled that the value of the appointed property should be included in the gross estate, and determined a tax deficiency. The Board of Tax Appeals approved his action. The Circuit Court of Appeals affirmed the Board's decision.

Although, under the law of Wisconsin, the decedent could have appointed anyone to receive the trust property, including her estate and her creditors, the petitioner urges that, by statute and decision, Wisconsin has defined as special a power such as she held. The respondent urges that this is not a correct interpretation of the State law. We find it unnecessary to resolve the issue, since we hold that the powers are general within the intent of the Revenue Act, notwithstanding they may be classified as special by the law of Wisconsin.

State law creates legal interests and rights. The federal revenue acts designate what interests or rights, so created, shall be taxed. Our duty is to ascertain the

Page 309 U. S. 81

meaning of the words used to specify the thing taxes. If it is found in a given case that an interest or right created by local law was the object intended to be taxes, the federal law must prevail no matter what name is given to the interest or right by state law.

None of the revenue acts has defined the phrase "general power of appointment." The distinction usually made between a general and a special power lies in the circumstance that, under the former, the donee may appoint to anyone, including his own estate or his creditors, thus having as full dominion over the property as if he owned it, whereas, under the latter, the donee may appoint only amongst a restricted or designated class of persons other than himself.

We should expect, therefore, that Congress had this distinction in mind when it used the adjective "general." The legislative history indicates that this is so. The Treasury regulations have provided that a power is within the purview of the statute if the donee may appoint to any person.

With these regulations outstanding, Congress has several times re-enacted § 302(f), and has thus adopted the administrative construction. That construction is in accord with the opinion of several federal courts.

Page 309 U. S. 82

The petitioner claims, however, that the decision below is in conflict with two by other Circuit Courts of Appeal. The contention is based on certain phrases found in the opinions. We think it clear that, in both cases, the courts examined the local law to ascertain whether a power would be construed by the state court to permit the appointment of the donee, his estate or his creditors, and on the basis of the answer to that question determined whether the power was general within the intent of the federal act.

As the decedent in this case could have appointed to her estate or to her creditors, we hold that she had a general power within the meaning of § 302(f). This conclusion is not inconsistent with authorities on which the petitioner relies, holding that, in the application of a federal revenue act, state law controls in determining the nature of the legal interest which the taxpayer had in the property or income sought to be reached by the statute.

The petitioner's section position is that, inasmuch as the trustees had an unfettered discretion to withhold principal or income from any beneficiary, they could exercise their discretion as respects any appointee of the decedent. This fact, they say, renders the power a special one. Assuming that the trustees could withhold the appointed property from an appointee, we think the power must still be held general. The quantum or character of the interest appointed, or the conditions imposed by the terms of the trust upon its enjoyment, do not render the powers in question special within the purport

Page 309 U. S. 83

of § 302(f). The important consideration is the breadth of the control the decedent could exercise over the property, whatever the nature or extent of the appointee's interest.

The judgment is

     Affirmed.

Jurisprudence: A.M. No. MTJ-92-716 October 25, 1995

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.

PER CURIAM:

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 Augean 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.

Of 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 Colde 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.

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, contented 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 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. 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).

As 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:

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.

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 (G.R. No. 1155451) 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:

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.

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.

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.