IN RE: TRUSTEESHIP OF THE MINORS BENIGNO, ANGELA, AND ANTONIO, ALL SURNAMED PEREZ Y TUASON.

CONCEPCION, J.:

This is an appeal taken by Antonio Perez, as
judicial guardian of his children, the miners Benigno, Angela, and
Antonio, all surnamed Perez y Tuason, from an order of the Court of
First Instance of Rizal, dated October 19, 1956, denying a petition for
relief from Judgment.

Angela S. Tuason, appellant’s mother-in-law and
grandmother of his aforementioned children,died on March 20, 1948, She
was survived by three (3) children, namely: Angela I. Tuason, married
to appellant Antonie Perez, Antonio Tuason and Nieves Tuason de
Barretto. The deceased Angela S. Tuason loft a will which was duly
probated, and J. Antonio Araneta was appointed executor thereof, in
special proceeding No. 585 of the Court of First Instance of Quezon
City. Paragraph 4 of said will reads:

“CUARTA.— Instituyo cemo mis unieos herederes a mis
mencienadas tres hijas, a razsn de una navena parte del caudal
hereditarie que dejare para cada one de elles. Lags a mi hijo Antenie
atra poroian equivalente a dos novenas partes dal caudal hereditaria.
Lega asimismo a mis niatts que futren de mi hija Nieves, otra parcian
equivalente a dos novenas partas del caudal hereditario. Y finalmente
lego a mis nietes qua fueren hides de mi hi,1a Angela etra parcian
equivalente a dos novenas partes del caudal faereditarie. Dichos tras
legados, sin erabarga astan sujetes a la manda qua se manciana an el
parrafa siguiente. Las dos legadas a favor de mis mencienadas niatos
seran admlnistrados par mi albacea, J. Antenie Araneta (y en dafecto da
esta, su hermano, Salvadar Araneta), can amplies poderes de vender las
mlsmes, y can su producto adquirir atras bianes, y con dereche a cabrar
par su administracien, honorarios razanablas. Los poderes de dicho
administrador seran las de un trustee con los paderes mas
amplias permiitidas par la ley. Debera, sin embargo, rendir
trimestralmente, cuenta de su administracion a las legatarlas que
fuaren mayeras de adad y a los tutoros de las qua fueren manures de
edad. Y asimismo, dabera hacerlas antraga de la participacion qua a
cada lagatarie carrasponda en las rantas netas de la administracion. La
administracion sobra un grupo casara cuando tados mis nletos de diche
grupo llegaren a su mayoria de adad, y una mayoria de las mismos
acordaren la terminacion de la administracion. Por nietos, debe
entanderse no solamente a los nietos varones sino tarabian a las niatos
mujeres.”

Upon the theory that this provision created a trust,
Araneta instituted Special Proceeding No. Q-73 of the Court of First
Instance of Quezon City— which is the case at bar— in which he was
appointed trustee of the properties belonging to the children of Angela
I. Tuason. It would appear, also, that in Special Proceeding No. Q-74
of the same Court, entitled “Trusteeship of Minors Ahgusto Barretto y
Tuason, et al”, Araneta was, similarly, appointed trustee of the
properties belenging to the children of Nieves Tuason de Barretto. On
October 5, 1950, Araneta filed, in the present case, a motion for the
approval of his accounts as trustee of the properties of the Perez
children and a petition to fix his compensation as such trustee. Mr.
and Mrs. Perez, through their counsel, Atty. Brady objected thereto and
prayed that Araneta be removed, and that the Philippine Trust Company
be appointed, as trustee. By an order dated December 23, 1950, this
petition of the Pereses was denied and Araneta’s accounts were
approved, but the fixing of his fees as trustee was deferred. Having
been failed to secure a reconsideration of this order, Mr. and Mrs.
Perez filed with the Supreme Court a offer certiorari and preliminary
injunction, which was docketed as Case G.R. No. L-6182 entitled “Angela
I. Tuason de Perez, et al. vs. Judge Hermogenes Caluag and J.
Antonio Araneta.” The Pereces maintained therein that the above quoted
provision of the will of Angela S. Tuason did net create a trust, that
Araneta was net a trustee, and that he should be replaced by the
Philippine Trust Co. er same other persons, by reason of his actuations
in connection with the sale of a bed of the deceased, of the sum of
P248,000 claimed by him as executor of her will, and of tha allegedly
excessive fees charged by him as trustee of the properties of the Perez
children. In due course, this Court rendered a decision, on April 13,
1955, holding that a trust had been established by the deceased and
that the fees te be collected by Araneta as trustee should be
determined by the lewer court, and denying the petition for certiorari,
as wall as dissolving the writ of preliminary injunction previously
issued.

Thereafter, er on June 30, 1955, Mr. and Mrs. Perez
filed a motion in Special Proceeding No. Q-73 demanding the
participation of their children in the net income of their properties
held by Araneta as trustee. When the motion was called for hearing on
December 5, 1955, Mr. and Mrs. Perez appeared together with Atty. Brady
and Atty. Marcial Lichauco. As counsel for the Pereces, Atty. Brady
informed the court that Atty. Lichauco would try to bring about an
amicable settlement between the parties and obtained permission to
withdraw temporarily in order that Atty. Lichauco could make use of his
geed offices, for he (Brady) feared that his presence might make a
settlement difficult, if not impossible. Thereupon Atty. Lichauco
suggested that Araneta and he meet in the chamber of Judge Caluag, who
presided the branch of the Court of First Instance of Quezon City to
which the case belonged. What transpired thereafter, in the chamber of
Judge Caluag appears in the transcript of the stenographic notes then
taken, from which we quote:

“THE COURT

You may get in now and discuss the matter.

(At
this stage, Atty. Lichauco, Atty. Araneta and the Judge proceeded to
the latter’s chamber to discuss the matter of settlement, after which
discussion the undersigned was called it take down the agreement
arrived at between Atty. Lichauco and Atty. Araneta, dictated by Atty.
Araneta in the presence of Atty. Lichauco and the Honorable Judge, to
wit: Atty. Lichauco and the Trustee have agreed as follows:

1. That commencing January, 1956, the trustee will deliver
   to the beneficiaries of this trust 50% of the net income of the trust.
   The remaining 50% shall be retained by him until such time as the total
   amount of inheritance tax paid by him is replenished in its totality;

2. That
   at the end of every quarter, upon the filing of the statements far the
   quarter, If it should appear that the 50% of the income which was
   delivered by the trustee to the beneficiaries is less or more than what
   it should be, an adjustment shall be made to find the correct amount;

3. That
   the trustee shall file his bill for services rendered by him as such
   trustee up to December 31, 1955, and the measure of his fees as agreed
   upon between him and Attys. Lichauco and Brady shall be that which this
   Court adopted and approved in the other case entitled ‘Trusteeship of
   Miners Augusto Barretto y Tuason, et al., Sp. Proc. No. Q-74’; and,

4. That
   Atty. Araneta is allowed to collect by way of attorney’s fees in the certiorari incident which reached the Supreme Court docketed as G.E.
   No. L-6182 the sum of Fifteen Thousand (P15,000.00) PESOS.”

Forthwith, Judge Caluag issued tha following order:

“When
the hearing of this case was called, Atty. Brady manifested to the
Court that the services of Atty. Marcial P. Lichauco have been
contracted to appear in collaboration with him; that as long as he
continued as lawyer of the beneficiaries of this trust, would be
difficult to came to a settlement of this case, and that he was
agreeable to withdraw his appearance for thirty minutes and give Atty.
Lichauco and the Trustee an opportunity to discuss and see whether they
could come to a settlement. The Court invited both Attys. Lichauco and
Araneta to his chambers to discuss, and after the discussion said
attorneys have agreed as fallows?

“1. That
commencing January, 1956, the Trustee will deliver to the beneficiaries
of this trust 50% of the net income of the trust. The remaining 50%
shall be retained by him until such time as the total amount of
inheritance tax paid by him is replenished in its totality;

“2.
That at the end of every quarter, upon the filing of the statements for
the quarter, if it should appear that the 50% of the Income which was
delivered by the Trustee to the beneficiaries is less or more than
what it should be, an adjustment shall be made to find the correct
amount;

“3. That the Trustee shall file his
bill for services rendered by him as such Trustee up to December 31.
1955, and the measure of his fees as agreed upon between him and Attys.
Lichauco and Brady shall be that which this Court adopted and approved
in the other case entitled ‘Trusteeship of Minors Augusto Barrette y
Tuason, et al., Sp. Proc. No. Q-74;; and,

“4.
That Atty. Araneta is allowed to collect by way of attorney’s fees in
the certiorari incident which reached the Supreme Court docketed as
G.R. No. L-6182 the sum of Fifteen Thousand (P15,000.00) Pesos.

“IN VIEW OF THE FOREGOING, both parties are ordered to comply faithfully with their agreement aboverecited,”

On June 1, 1956, appellant Perez, this time
represented by another counsel, filed a pleading, entitled “Petition
for Relief from Judgment and Answer to Trustee’s Motion dated April 13, 1956” (for the approval of certain disbursements made by Araneta).
Insofar as pertinent to this case, said “Petition for Relief from
Judgment”, was aimed particularly at paragraphs 3 and 4 of the
above-quoted order of December 5, 1955. Appellant alleged,
substantially, in said petition for relief, that his former counsel,
Atty. Lichauco, had acceded to said order “for want of knowledge of the
circumstances of the case”; that the amount sought to be collected by
the appellee, by way of compensation as trustee is “10% of the total
rental, dividend and interest collected by him, and % of the total
sales made by him”; that, pursuant to paragraph h of the will
above-quoted, the trustee is entitled only to reasonable fees; that, in
order to determine the amount thereof, the court should receive
evidence on the rate of fees of trustees prevailing in the community;
that appellant should be allowed, therefore, to submit evidence
thereon; that, when a trustee sells property, “he is entitled to a
commission, but not the customary commission”; that some jurisdictions
do not permit a trustee, who is a lawyer, to collect fees for his
services as such; that appellant’s petition for a writ of certiorari
was directed, not against the properties held in trust, but against
Araneta whose removal was sought, and, that, Araneta should not be
compensated far his services in defending himself; and at, as executor
of the will of the deceased Angela S. Tuason, the appellee had already
collected P248,000, although P20,000 would have sufficed to fully
compensate him for his services as such executor. Premised upon these
allegations, appellant prayed, insofar as the “petition for relief from
judgment” was concerned, that “judgment” be rendered:

“(a) Ordering the trustee to answer our petition fur relief from judgment:

“(b)
After due hearing, adjusting the fee of the trustee from the inception
of this trusteeship to the present to the rate of fees charged by the
trust company that may charge the lowest fee;

“(c)
Denying the trustee any fees for legal services rendered in SC-G.R. No.
L-61825 H(d) Crediting to the trust on account of any future fee that
may be charged by the trustee the amount of P61,000.00 more or less as
excess fee charged by the trustee in his capacity as administrator.”

After due hearing on this motion, which was objected
to by Araneta, Judge Caluag issued an order, dated October 19, 1956,
the pertinent parts of which read:

“In the petition for relief,
petitioner contends that the order dated December 5, 1955 was not
supported by evidence and based en misunderstanding, misapprehension
and lack of knowledge on the part of Atty. Marcial P. Lichauco who
appeared during the hearing on said date, December 5, 1955. To resolve
this contention of the petitioner whether the same is meritorious or
not. the Court had to order the transcription of the notes taken during
said hearing. It appears from the transcript thereof that Atty. Marcial
P. Lichauco appeared as additional counsel and Atty. Brady made of
record that it has come to his knowledge that no settlement could be
had as long as he represents Mr. and Mrs. Perez, although he was
willing to withdraw his appearance and allow Atty. Lichauco and Araneta
to discuss the matter if they could do so; that Atty. Brady further
stated that he was happy to withdraw and asked for a reason of 30
minutes to allow the two of them (Attys. Lichauco and Araneta) to
discuss the matter of settlement. From this manifestation, it is
evident that Atty. Lichauco appeared for the petitioner in substitution
of Atty. Brady who has temporarily withdrawn precisely for the purpose
of effecting a settlement between the parties. Atty. Lichauco, in open
Court, stated that he will do what he can to effect a settlement
because although he is a lawyer he believes that it is always better to
settle a case if it could be done, and that it was upon his suggestion
that he and the trustee, Atty. Araneta, meet in chambers for the
purpose of exploring means and ways to ar1 rive at a settlement. Said
Atty. Lichauco, ‘May I suggest You Honor, that Atty. Araneta and I meet
in chambers for the purpose1, and by virtue of that suggestion the
Presiding Judge invited both Attys. Lichauco and Araneta to enter his
chambers. Once in chambers, Attys. Lichauco and Araneta started
discussing the matter of settlement of the questions covered by the
order dated December 5, 1955, and afterwards Stenographer Mr.
Evangelista was called to the chambers and Atty. Araneta, in the
presence of Atty. Lichauco himself and the Presiding Judge, dictated to
said stenographer the terms and conditions arrived at between him and
Atty. Lichauco which were transcribed verbatim in the said order. The
Court distinctly remembers that Atty. Lichauco even went out to the
Court room to consult his clients regarding the terms and manifested
that his clients were agreeable to said terms, and that after the same
were dictated to the stenographer he (Atty. Lichauco) made the
following statement: ‘I should like to make of record that my
appearance in this case has been limited to this particular incident,
and the parties having arrived at a settlement satisfactory to them
all, I hereby withdraw my appearance in connection with any further
incident that my arise.1 The transcript of stenographic notes and the
affidavit executed by Atty. Lichauco in support of the petition for
relief substantially corroborates each other.

“IN VIEW WHEREOF, the petition for relief is hereby denied.”

Hence, the present appeal, in which appellant maintains that:

“1. The lower court erred in failing
to find that our petition for relief from Judgment was filed within the
reglementary period.

“2. The lower court
erred in failing to find that our petition for relief from judgment was
equitable and, that therefore it should be given due course.”

Pursuant to Rule 38, section 3, of the Rules of
Court, a petition for relief may be “filed within sixty (60) days after
the petitioner learns of the judgment, order or proceeding to be set
aside, and not more than six (6) months after such judgment or order
was entered or such proceeding was taken.” The petition for relief
before us was filed on June 1, 1956, or within six (6) months after
December 5, 1955, when the order in question was issued. Was it filed
within said period of sixty (60) days? Appellant states in his brief
that copy of the order of December 5, 1955 was received by his counsel,
Atty. Brady, on December 19, 1955; that, at that time, the relations
between him and Atty. Brady were strained; that, for this reason, Atty.
Beady did not turn over said order to him; that it was only on April
23, 1956, that Atty. Brady turned over the expedients of this case to
appellant’s present counsel; that early in May, 1956 the latter called
appellant’s attention to said order of December 5, 1955; and that “it
was only then that this order was first read” by appellant (pp. 12-13,
appellant’s brief). Predicated upon these allegations of fact appellant
maintains that the 60-day period, provided for in said section 3 of
Rule 38, should be counted from early in May, 1956, when he allegedly
dame to know of the order in question, and that his petition for relief
was filed, therefore, within the reglementary period.

We cannot agree with this pretense. To begin with, said allegations of fact were not made in appellant’s verified Petition for relief. Secondly,
notice to counsel is tantamount to notice to his client. In fact, the
Rules of Court (Rule 27, section 2) require that service upon a party
be made “upon his attorneys or one of them, unless service upon the
party himself is ordered by the court.” Hence, a notice given to such
party, nit upon the attorney who has appeared en his behalf, is not a notice in law (Palad vs. Cui, 28 Phil., 44; Peuz vs. Isip, 81 Phil., 218; Hernandez vs. Clapis 48 Off. Gaz., 546; Vivero vs. Santos, 9 Off. Gaz., 1424, Jacinto vs. Jacinto, 52 Off. Gaz., 2582; Chainani vs. Tancinco, L-4782, Feb. 29, 1952). Thirdly, Atty. Brady is presumed to
have advised his client, appellant herein, of the order in question.
Indeed, there is no allegation to the contrary in appellant’s petition
for relief. Fourthly, the allegation to the effect that it was early
early in May, 1956 that appellant “first read” the order of December 5, 1955, does not imply that he knew prior thereto neither the existence of such order, not the substance
of its contents. Fifthly, while Lichauco, Araneta Judge Caluag ware
conferring in the latter’s chamber, appellant and his wife were in the
court room adjoining said chamber. After stepping out therofrom and
consulting the couple, Lichauco returned to the chamber of Judge
Caluag, and advised him and Araneta that he (Lichauco) was agreaable to
the terms of the settlement proposed by Araneta, because Mr. and Mrs.
Perez had given their conformity thereto. In short, we are satisfied,
from the circumstances surrounding the case, that appellant had, on
December 5, 1955, a substantial knowledge of the terms of the
settlement then made, that he had previously agreed thereto, and that
he knew that an order was then issued in accordance therewith.

Regardless of the foregoing, we are of the opinion
and so hold that the petition for relief is untenable. As regards the
fees of Araneta in case G.R. No. L-6182, the affidavit of Atty.
Lichauco, submitted by appellant himself, states:

“The trustee then brought up the
question of his legal fees in the certiorari case, G.R. No. L-6182. and
he suggested a fee of P15,000. Affiant was entirely unfamiliar with the
aforementioned case, hence affiant loft the Judge’s chambers for the
purpose of discussing the matter with Mrs. Angela Tuason de Perez and
her husband, Antonio Perez. The latter gave their conformity to the
trustee’s proposal, for which reason affiant told the Honorable Judge
that the trustee’s proposal would be satisfactory to him. Although
affiant was not familiar with the issues involved in G.R. Ho. L-6182,
affiant did not consider it necessary for him to familiarize himself
with said case before giving his conformity to the trustee’s proposal
for the reason that Mrs. Angela Tuason de Perez and her husband,
Antonio Perez, parents of the minor children concerned, ware agreeable
to the trustee’s proposal.”

In other words, appellant personally agreed to the
amount of Araneta’s fees in connection with said case L-6182. There was
no mistake on the part of Atty. Lichauco, insofar as this phase of the
settlement is concerned or paragraph (4) of the order complained of.

Referring new to paragraph (3) therof— which
provides that the measure of the fees of Araneta (far services rendered
by him up to December 31, 1955, as trustee of the properties of
appellant’s children) shall be that which had bean adapted and approved
by the Court in the other case entitled “Trusteeship of Miners Augusto
Barrette y Tuason et al,” Special Preceeding No. Q-74— Atty. Lichauco
stated in his aforementioned affidavit that

“* * * he was informed that the
properties being administered by the trustee were mare ar lass the same
as the properties being administered by him in the case under
controversy. Affiant, therefore, saw no reason why the fees which the
court had appraved in the case of the minors Augusta Barretta et al.
should net likewise be allowed in the case af the miners Banigne Perez
y Tuasan at al.”

The factual basis of this canclusian af Atty.
Lichauco is not assailed as erroneous. Indeed, the recard bofare us
indicates that it is carrect. Neither is the lagical nature af said
canclusian challenged by appellant. The gist of his pretense, however,
is that Lichauca cauld have abtainad better terms far appellant, had he
(Lichauca) invoked the reasons now given in support of the petition far
relief, namely, that the fees charged by Araneta are excessive; that he
is entitled only to a reasonable compensation; and that the fees
usually charged by trust cempanies should be ascertained and cansidered
in determining Araneta’s compensation.

It will be noted, that the petitian far relief is
based upon an alleged “mistake”, although the argument adduced in
support of this averment is Lichauco’s “want of knowledge of the
circumstances of the case”, which, in, itself, does not constitute a
mistake. We should not assume, however, that Lichauco had no knowledge
of the above mentioned reasons relied upon in the petition for relief
under consideration. Indeed, apart from the long years of practice of
Lichauco in this jurisdiction, it appears that he want aver the recard
af the case bofare appearing before Judge Caluag an December 5, 1955.

Appellant has not indicated any single mistake of
fact committed by Lichauco which led him to agree to the amicable
settlement in question. We cannot even say that he had committed a
tactical mistake in connection therewith. And the reason is plain and
simple. Appellant was seemingly anxious to have an amicable settlement.
He had been litigating for several years, without any tangible result or benefit. He wanted ta have a substantial part af the income of the
property of his children held in trust by Araneta. But, the previous
litigations between appellant and Araneta and the unpleasant incidents
they had had therein, were far from conducive to the promotion of good
will among them. On the contrary, further bitter litigations could
normally be expected under these circumstances. So, even at the risk of
hurting the feelings of his counsel, Atty. Brady who actually
resented it appellant called Atty. Lichauco ta mediate. In order to be
successful in his mission, Lichauca a lawyer af experience must have
knawn that he could not possibly get an amicable settlement, if ha
demanded everything that appellant wanted, and blacked the demands of
Araneta. Lichauco must have known that, had he insisted on questioning
the claim of Araneta for his fees as trustee, as thoroughly as the
petition for relief suggests, an amicable settlement wauld have been
impossible. What is worse, in all probability, appellant would not
receive, as yet, a sizeable portion of the rentals of the property of his children. If he wanted to get this relief soon, he had to relax
somehow his objections to Araneta’s fees.

It is, thus, obvious that this is not a case of
fraud, accident, mistake or excusable negligence justifying a relief
under Rule 38. If there was any mistake at all, the one mainly
responsible therofor is appellant himself, for he induced the court to
believe that Atty. Lichauco would be in a better position to protect
his interests than Atty. Brady, although the latter was more posted
than the former on the details of the case. Hence, appellant has no
reason to complain.

In view of the foregoing, the order appealed from is
hereby affirmed, with costs against appellant Antonio Perez. It is so
ordered.

Paras, C.J. Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L., Endencia, and Felix, JJ., concur.

Messrs. Justices Padilla and Felix took no part.