TEODORICO UY TIOCO, PETITIONER, VS. CARLOS IMPERIAL, JUDGE OF FIRST INSTANCE OF MANILA, AND ALEJANDRO M. PANIS, RESPONDENTS.

This is a petition for a writ of prohibition to restrain the
respondent judge from compelling the petitioner to pay the sum of P11,250 to the
other respondent, Alejandro Panis, out of the funds of the estate of the
deceased Basilisa Yangco, of which estate said petitioner is the
administrator.

It appears from the record that the respondent Panis was
counsel for the administration of said estate and that he on October 31, 1927,
before the final settlement of accounts, presented a motion in the probate
proceedings for the allowance of attorney’s fees in the sum of P15,000. On
December 5,1927, the respondent judge, over the objections in writing presented
by the administrator, granted the motion and allowed the fees claimed by Panis.
The administrator, herein petitioner, did not appeal from the order of the
court, but on February 8, 1928, Jacinto Yangco, in his capacity as guardian
ad litem of the minors Pedro and Bruno Uy Tioco, the sons and then only
heirs of the deceased, presented a motion for reconsideration under section 113
of the Code of Civil Procedure on the grounds that he was not notified of the
motion for the allowance of fees and had no knowledge thereof or of the order
granting the motion until a few days before the filing of the motion for
reconsideration; that the fees allowed Panis were excessive and prejudicial to
the interests of the estate; and that considering the nature of the work
performed, the services rendered by him did not warrant the payment of the sum
claimed. This motion was denied on February 15, 1928, the respondent judge
holding that while the heirs of the deceased were not notified of the hearing of
the motion for allowance of attorney’s fees, such notice was duly served upon
the administrator; that that was a sufficient compliance with the law; that the
curador ad litem might have the right to intervene in the case but had
no absolute right to be notified of the motion; that the provisions of section
113 of the Code of Civil Procedure were not applicable to the case; and that, in
any event, the motion for reconsideration is entirely without merit.

On February 23, 1928, the guardian ad litem excepted
to the order of February 15, 1928, and gave notice of his intention to appeal to
the Supreme Court. On the 28th of the same month, Attorney Felix Wijangco, on
behalf of Panis, filed a motion in the probate proceedings in which he set forth
that the minor Bruno Uy Tioco is now deceased and that his share of the
inheritance will go to his father, the herein petitioner; that the property
involved in the case is community property of which one-half belongs to the
petitioner; that consequently the minor Pedro Uy Tioco is only entitled to a
one-fourth of the property pertaining to the estate, and that therefore his
appeal from the order allowing the attorney’s fees can only relate to one-fourth
of the amount allowed, wherefore the movent asked that the administrator be
ordered to make payment of threefourths of the amount within five days from the
presentation of the motion. To this motion the guardian ad litem objected, but
under the date of March 6,1928, the respondent judge ordered the administrator
to make payment of three-fourths of the P15,000, within five days. The
administrator refused to make such payment, and on March 17th the court, after
citing him to show cause, again ordered him to pay as provided for in the order
of March 6, under penalty of removal from office. The present action was
thereupon brought. Upon the filing of the petition the respondents were ordered
to answer within ten days. Instead of filing an answer, as ordered, the
respondents submitted a demurrer which we, considering that there can be no
dispute as to the essential facts, shall regard as a sufficient answer to said
petition.

In our opinion, the petition must be granted. The orders of
March 6th and 17th for a partial payment of the fees claimed were issued after
an appeal had been taken and perfected by the filing of an appeal bond approved
by the court. The appeal was taken from the order of February 15 denying the
motion for a reopening and reconsideration of the allowance for attorney’s fees
and involves the validity of that order and the finality of the order of
December 5, 1927. Whether these orders were valid and final need not here be
determined, but they are appealable, and we are not aware of any provision of
law authorizing the lower court to enforce the immediate execution of such
orders in probate proceedings after an appeal has been perfected. The interests
of the appellee are supposed to be sufficiently protected by an adequate
bond.

The arguments submitted indicate a misconception of the
character of the liability for attorney’s fees in probate proceedings. The
services for which fees are claimed are supposed to have been rendered to the
executor or administrator to assist him in the execution of his trust. The
attorney can therefore not hold the estate directly liable for his fees; such
fees are allowed to the executor or administrator and not to the attorney. The
liability for the payment rests on the executor or administrator, but if the
fees paid are beneficial to the estate and reasonable, he is entitled to
reimbursement from the estate. Such payments should be included in his accounts
and the reimbursement therefor settled upon the notice prescribed in section 682
of the Code of Civil Procedure. (See Church on Probate Law and
Practice, pp. 1570-1588 and authorities there cited; Woeraer on the American Law
of Administration, 2d ed., sections 515 and 516.)

For the reasons stated the respondent judge is hereby
prohibited from enforcing the payment of the attorney’s fees above-mentioned
until the appeal taken by Jacinto Yangco, as guardian ad litem for the
minor Pedro Uy Tioco, has been passed upon by this court or dismissed. No costs
will be allowed. So ordered.

Avanceña, C. J., Street, Malcolm, Villamor, Romualdez,
and Villa-Real, JJ., concur.