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GAVINO ALDAMIZ vs.

JUDGE OF COURT OF FIRST INSTANCE OF MINDORO and were not necessary because of the 10 years of service that he
JUAN L. LINA GR no. L-2360 December 29, 1949 |Wenceslao served as an attorney and legal consultant of the commercial
partnership.
DOCTRINE  CFI ordered the execution of the final order. Sheriff levied on execution
Execution is an improper remedy for the payment of debts and expenses of on two parcels of land belonging to the commercial partnership which
administration under the Rules of Court—the proper procedure is for the court was sold at a public auction to pay off the Attorney’s professional fees.
to order the sale of personal estate or the sale or motgage of real property of (this was now being questioned in the present petition)
the deceased and all debts and expenses of administration.
ISSUE/S
FACTS W/N the order of execution is the proper remedy in administration of the estate
 Gavino Aldamiz, administrator of the testate estate of the decedent of Santiago Rementerio?
(Santiago Rementeria) filed a petition for certiorari in this Court
questioning the decision of CFI of Mindoro in the testate estate HELD/RATIO
proceedings particularly the matter of fixing the amount of fees due to NO. [See doctrine] The court orders were declared to be NULL and VOID for
respondent Atty. Juan Luna. non-compliance of the procedure. All subsequent orders implementing the
 Santiago Rementerio, the decedent, was a Spaniard and member of judgment fixing the professional fees are null and void for having been issued in
the commercial partnership “Aldamiz y Rementeria”. excess of jurisdiction.
 Santiago died in Spain in 1932 and probate proceedings were 1) The correct procedure for the collection of attorney’s fees is for the
instituted by Gavino in Mindoro, who was represented by Atty. Luna. counsel to request the administrator to make payment and file an
 Ten years after Gavino’s appointment as administrator, he submitted action against him in his personal capacity and not as an administrator
his accounts for the years 1944-46 through Atty. Luna and also a project should he fail to pay. If judgement is rendered against the administrator
of partition was submitted. and he pays, he may include the fees so paid in his account to the
 CFI approved the account but refused to approve the partition unless court. The attorney also may, instead of bringing such an action, file a
all debts including the attorney’s fees be first paid. petition I the testate or intestate proceeding asking the court, after
o In the project of partition, it stated: attorney’s fees, debts, and notice to all persons interested, allow his claim and direct the
incidental expenses would be proportionately paid by the administrator to pay it as an expense of administration. This procedure
beneficiaries after the closure of the testate proceedings. The was clearly not followed in this case.
court sanctioned this clause. 2) A writ of execution is not the proper procedure allowed by the ROC for
 In the same proceedings, Atty. Luna (without previously preparing and the payment of debts and expenses of administration. The proper
filing a written petition to have his professional fees fixed and without procedure is for the court to order the sale of personal estate or the
written notice to all the interested parties) submitted evidence of his sale or mortgage of real property of the deceased and all debts or
services and professional standing so that the court might fix the expenses of administration should be paid out of the proceeds of the
amount of his compensation. sale or mortgage.
o The court awarded payment of his professional services of an o The order for the sale should be issued upon motion of the
aggregate amount of P28,000 consisitng of the ff: administrator and with written notice to all the heirs, legatees
(a) For the institution and preparation pleadings in the and devisees residing in the Philippines, according to Rule 89,
voluminous probate case, allowance of the will, project of Sec 3 and Rule 90 Sec 2. And when sale or mortgage of real
partition and the final closing of this proceeding = P15,000 estate is to be made, the regulations contained in Rule 90 Sec.
(b) For the registration of a parcel of land of 78 hectares in 7 should be complied with.
favor of the testate =P5000 3) When can a writ of execution may validly and legally be issued?
(c) For three naturalization cases at the rate of P1000 each = Execution may issue only where the devisee, legatees have entered
P3000 into possession of their respective portions in the estate prior to
(d) For services rendered in the deduction of inheritance tax = settlement and payment of the debts and expenses of administration
P5000 and it is later ascertained that there are such debts and expenses to
be paid. This is not the instant case.
o CFI also noted that even if there is a failure to file a written
claim and to notify the interested parties thereof was not due
to bad faith but to an honest belief that such requirements