MARIA CORTES, PETITIONER AND APPELLANT, VS. CANDIDA CASTILLO AND ADRIANO HERRERA, RESPONDENTS AND APPELLEES.

By means of these proceedings in habeas
corpus, the petitioner Maria Cortes, widow of the deceased sergeant
Alejandro Herrera, seeks to obtain the return of her children, Acardio
and Bernardo, aged 6 and 4, respectively, now under the control of
their grandmother, Candida Castillo. The trial judge, the Honorable
Pedro Conception, in his decision, dismissed the petition without
special findings as to costs, and named the grandmother Candida
Castillo as the guardian of the minors. It is from this judgment that
the petitioner has appealed.

Maria Cortes and Alejandro Herrera were legally married. On the
complaint, however, of the husband, action was brought against the wife
for adultery and she was found guilty and sentenced to three years six
months and twenty-one days of imprisonment. The husband later condoned
the guilty spouse, secured her a pardon, and went to live with her a
second time. Not long thereafter, the husband again became suspicious
of the conduct of his wife and taking the two elder children, Arcadio
and Bernardo, went to live in the house of his mother. Action for
divorce was begun by the husband, Alejandro Herrera, but this was not
terminated at the time of his untimely and heroic death, while in the
performance of his duties as a member of the police force of the city
of Manila.

The instant action may have been begun by the
mother because of maternal affection for her children, and again it may
have been begun, as insinuated by counsel for the respondents, because
of the sum of money gathered for the support of the children. Certain
testimony was introduced intended to show that Maria Cortes had
insufficient means to support the children. Ineffectual attempts to
prove the continued immoral conduct of the mother were also made.
However all of this may be, one fact remains and this is, that the
mother has been found guilty of adultery.

As suggested in the decision of the trial court, and by counsel on
appeal, the questions reduce themselves to these: Has the mother
uncontrolable authority over her children? Or is there a discretionary
power in the courts by means of which the mother can be deprived of
such authority?

Article 171 of the Civil Code, presumably still in force, because
of continued judicial construction and enforcement, provides that
parents who, by the example set by them, tend to corrupt their
offspring, may be deprived by the courts of their parental authority.
(There can also be noted sections 770 and 771 of the Code of Civil
Procedure.) This provision of the law imposes a discretionary power on
the courts, which should be made use of, with a primary regard for the
welfare of the minor. (See 2 Manresa, Codigo Civil, pp. 63, et seq.;
decision of the supreme court of Spain, June 23, 1905.) Both under the
civil law and the common law, the best interests of the child is the
paramount consideration.

In this instance, we are of the opinion that such unfitness on the
part of the mother has been shown as warranted the trial court, in the
exercise of a sound judicial discretion, in leaving the children in the
custody of their grandmother.

Judgment is affirmed with costs against the appellant. So ordered.

Mapa, C. J., Araullo, Street, and Villamor, JJ., concur.