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