G.R. No. L-2360. December 29, 1949
GAVINO ALDAMIZ, AS ADMINISTRATOR OF THE ESTATE OF THE DECEASED SANTIAGO REMENTERIA Y ALDAMIZCOGEASCOA, PETITIONER, VS. THE JUDGE OF THE COURT OF FIRST INSTANCE OF MINDORO, THE P…
MORAN, C.J.:
administrator of the testate estate of the deceased Santiago Rementeria y
Aldamizcogeascoa, to set aside the order of the Court of First Instance of
Mindoro issued in the said testate estate proceedings, fixing the amount of fees
for respondent Juan L. Luna, as attorney for said administrator.
The facts material to the issues raised in the petition are as
follows:
Santiago Rementeria y Aldamizcogeascoa, the decedent, was a
Spaniard and member of the commercial partnership “Aldamiz y Rementeria.” The
other members were the brothers, Gavino and Jose, surnamed Aldamiz. Santiago
Rementeria died in Spain in 1937, and probate proceeding No. 705 was instituted
in the same year in the Court of First Instance of Mindoro by Gavino Aldamiz
represented by Atty. Juan L. Luna. Gavino Aldamiz was appointed administrator
and as such was represented by respondent Atty. Juan Luna up to January 21,
1947, when the order complained of was issued. In that order it is said that
“said attorney is the one who instituted this testate proceeding ten years ago
and has from its incipiency to the present stage of the proceeding actively
intervened in the same.”
On January 15, 1947, after ten years from the date of his
appointment, Gavino Aldamiz, as administrator, through his attorney Juan L.
Luna, submitted his accounts for the years 1944, 1945 and 1946 and also a
project of partition with a view to closing the proceedings. On said date, the
court approved the accounts but refused to approve the project of partition
unless all debts including attorney’s fees be first paid. In the project of
partition, it was expressly stated that attorney’s fees, debts and incidental
expenses would be proportionately paid by the beneficiaries after the closure of
the testate proceedings, but the court refused to sanction this clause of the
project. It is for this reason that right then and there, Attorney Luna, to
comply with the wishes of the court, without previously preparing and filing a
written petition to have his professional fees fixed, and without previous
notice to all the interested parties, submitted evidence of his services and
professional standing so that the court might fix the amount of his compensation
and the administrator may make payment thereof. This failure to file a written
claim and to notify the interested parties thereof was not due to bad faith or
fraudulent purpose but to an honest belief on the part of the respondent
attorney that such requirements were not necessary under the circumstance.
In this connection, it must be stated, in justice to Attorney
Luna, that during the ten years that he served as attorney for the administrator
and during the twenty-five years as legal consultant to Santiago Rementeria,
Gavino Aldamiz and Jose Aldamiz individually and as a commercial partnership
under the firm name “Aldamiz y Rementeria,” he never took the trouble of
charging them for his professional services, thus showing disinterestedness and
extreme liberality on his part due to friendship and other personal
considerations toward his clients. And it is to be observed further that even
after ten years of active work in the testate proceeding, when he wanted to
close the same and it was then time for him to demand payment for his services,
he showed no interest in demanding preferring to leave the matter to future
negotiation or understanding with the interested parties. And when the amount of
his fees was fixed by the court and Gavino Aldamiz asked him for a substantial
reduction, he answered that it was not he who had fixed the amount but the
court, and advised his client to file a motion for reconsideration, with the
assurance that he would offer no objection to any reduction in amount and to any
extension of the time for paying what might be granted by the court. And again,
when Gavino Aldamiz paid him P5,000 on account, respondent attorney told him
that he would be satisfied with any additional amount that Gavino might later
desire to pay him. Only subsequent occurrences which proved distasteful to the
parties, led them to take steps which culminated in the filing of the instant
civil action.
At the time respondent’s evidence was submitted to the court,
the interested parties who were residing in the Philippines were Gavino Aldamiz
and his brother Jose Aldamiz. The others were then residing in Spain. No written
claim had ever been filed for respondent’s fees, and the interested parties had
not been notified thereof nor of the hearing, not even Gavino Aldamiz who did
not know when he was called to testify that he would testify in connection with
respondent’s fees. The Court, after considering the whole evidence presented,
issued its order of January 21, 1947, awarding respondent Attorney Luna, in
payment of his professional services, an aggregate sum of P28,000 in the
following manner:
- For the institution, preparation of the pleadings in the voluminous probate
case, allowance of the will, project of partition and the final closing of this
proceeding,—P15,000; - For the registration of a parcel of land of seventy-eight hectares in favor
of the testate,—P5,000; - For three naturalization cases at the rate of P1,000 each,—P3,000;
and - For services rendered in the deduction of inheritance tax from P28,000 to
P433.40—P5,000.
The Court ordered payment of these amounts within thirty days.
Petitioner Gavino Aldamiz received copy of this order on February 21, 1948. Out
of the total amount of P28,000, petitioner was able to pay P5,000 only, and upon
his failure to pay the balance of P23,000 after several demands made upon him by
respondent attorney, the latter on April 17, 1948, filed an ex-parte motion for
execution, which was granted by the respondent Court on April 19, 1948. Pursuant
to the order of execution, the respondent Sheriff levied on execution on two
parcels of land belonging, not to the testate estate of Santiago Rementeria y
Aldamizcogeascoa, but to the commercial partnership “Aldamiz y Rementeria” with
a total area of three hundred fifty seven (357) hectares, more or less, and
assessed at one hundred eighty-two thousand, three hundred and sixty pesos
(P182,360), which was sold at a public auction on July 20, 1948, in favor of
respondent attorney for only twenty thousand pesos (P20,000). This sale was made
after preliminary injunction had been issued by this court in the instant
case.
We believe and so hold that the order of the respondent court
issued on January 21, 1948, fixing the amount of respondent attorney’s fees is
null and void. The correct procedure for the collection of attorney’s fees, is
for the counsel to request the administrator to make payment and file an action
against him in his personal capacity and not as an administrator should he fail
to pay. (Palileo vs. Mendoza, G. R. No. 47106, 40 Off. Gaz. [8th Supp.],
132.)[1] If judgment is rendered against
the administrator and he pays, he may include the fees so paid in his account to
the court. (Uy Tioco vs. Imperial, 53 Phil., 802.) The attorney also may,
instead of bringing such an action, file a petition in the testate or intestate
proceeding “asking that the court, after notice to all persons
interested, allow his claim and direct the administrator to pay it as an
expense of administration.” (Italics ours.) Escueta vs. Sy Juilliong, 5 Phil.,
405.)
In the instant case, as above stated, no written petition for
the payment of attorney’s fees has ever been filed by respondent attorney and
the interested parties had not been previously notified thereof nor of the
hearing held by the court. Consequently, the order issued by the respondent
court on January 21, 1947, and all subsequent orders implementing it, are null
and void, as having been issued in excess of jurisdiction.
We also hold that the order of execution issued on April
19,1948, is null and void, not only because it was intended to implement the
order of January 21,1947, which in itself was null and void, but because a writ
of execution is not the proper procedure allowed by the Rules of Court for the
payment of debts and expenses of administration. The proper procedure is for the
court to order the sale of personal estate or the sale or mortgage of real
property of the deceased and all debts or expenses of administration should be
paid out of the proceeds of the sale or mortgage. The order for the sale or
mortgage should be issued upon motion of the administrator and with the written
notice to all the heirs, legatees and devisees residing in the Philippines,
according to Rule 89, section 3, and Rule 90, section 2. And when sale or
mortgage of real estate is to be made, the regulations contained in Rule 90,
section 7, should be complied with.
Execution may issue only where the devisees, legatees or heirs
have entered into possession of their respective portions in the estate prior to
settlement and payment of the debts and expenses of administration and it is
later ascertained that there are such debts and expenses to be paid, in which
case “the court having jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of their several liabilities, and
order how much and in what manner each person shall contribute, and may
issue execution if circumstances require” (Rule 89, section 6; see
also Rule 74, section 4; Italics ours). And this is not the instant
case.
It is alleged by respondents that petitioner is guilty of
laches. True that petitioner failed to appeal from the order of January 21,
1947, within the time provided by the Rules and the instant petition for
certiorari was filed one (1) year, four (4) months and fourteen (14) days after
petitioner had received a copy of said order. And we have held in Profeta vs.
David, 40 Off. Gaz,, 14th Supp., p. 152,[1] that orders issued without previous notice
to parties will be deemed cured if said parties fail to appeal within the time
provided by the rules and their appeal is lost due to their own negligence. But
here, aside from petitioner, there are interested parties who have never been
notified of the order complained of, and as to them, said order has not yet
become final and executory. And with respect to petitioner, he has not lost his
appeal through his own negligence. When he received notice of the order of the
Court fixing respondent’s fees in the amount of P28,000, he immediately wrote
his lawyer a letter asking for a substantial reduction and extension of time to
pay. The lawyer answered advising him to file his motion for reconsideration
within thirty days, but he received his lawyer’s letter after said period had
expired. And petitioner had no other attorney to advice him except respondent
who was his adversary on the matter now in dispute. After receiving said letter,
he again sought equitable compromise with respondent attorney and later paid him
P5,000, and respondent then told him that he would be satisfied with whatever
additional amount petitioner might desire to pay him. And petitioner would
perhaps have taken no action were it not because without previous notice to him,
the respondent attorney asked authority from the court to sell two parcels of
land totalling 13 hectares, for the payment of said professional fees and later,
on July 26,1947, respondent attorney, again without previous notice to
petitioner, filed a motion for execution for the same purpose. Both motions
were, however, abandoned. But a second motion for execution was filed by
respondent without petitioner’s knowledge, which was granted by the Court on
April 19, 1948. Respondent Sheriff levied on two parcels of land belonging to
the partnership “Aldamiz y Rementeria” with a total area of 357 hectares and
assessed at P182,360 and the sale was announced by the sheriff for July 20,
1948. Two motions for reconsideration were filed by petitioner, one on June 16,
1948, and the other on June 28, 1948, asking that the order of January 21, 1947,
and the order of execution of April 19, 1948 be set aside, but both motions were
denied and the last order of denial is dated July 1, 1948. The petition in the
instant case was filed on July 17, 1948. We hold that under the circumstances,
particularly the fiduciary relation between petitioner and respondent attorney,
the former is not guilty of laches.
Respondents maintain that the case for the petitioner is one of
pure technicality, premised upon a supposed failure of the respondent attorney
to follow a supposed procedure. It is said that the amount of P28,000 fixed and
allowed by respondent court as professional fees of the respondent attorney is
not unconscionable or unreasonable because the entire estate was worth P315,112
and now it is worth about half a million pesos because of many improvements
existing thereon. It appears, however, that due to lack of notice upon the
interested parties mistakes have been committed by the court which could have
been avoided. For instance, the court awarded fees for services rendered not to
the testate estate but to other persons, such as the supposed services in
connection with the petitions for naturalization filed in behalf of Gavino
Aldamiz and Jose Aldamiz and the application for registration of a parcel of
land of 78 hectares filed not in favor of the testate estate but of the
partnership “Aldamiz y Rementeria.” These services evidently could not be
charged against the estate of Santiago Rementeria. And furthermore, due to lack
of preparation on the part of respondent attorney, it appears that while he was
testifying to his professional services he was apparently not sure of being able
to recite them all for at the end of his testimony he said: “Son los servicios
que me acuerdo ahora. * * *” Had he been afforded ample time to recollect the
nature and details of his long and continuous services, considering Ms high
professional standing as recited by the respondent court in its disputed order
and the increased value of the estate then, perhaps, a more reasonable
compensation would have been fixed, or, at least, the court could have rendered
a decision with full knowledge of all the facts and with justice to all the
parties concerned.
For all the foregoing, the order of the respondent court of
January 21, 1947, and all the subsequent orders implementing it, particularly
the order of execution issued by the court on April 19, 1948, and the sale made
by the sheriff on July 20, 1948, in favor of respondent attorney, are null and
void and are hereby set aside, with costs against respondents. It is so
ordered.
Ozaeta, Pablo, Bengzon, Padilla, Tuason, Reyes, and
Torres, JJ., concur.
[1] 70 Phil., 297.
[1] 71 Phil., 582.