BONDS OF EXECUTORS AND ADMINISTRATOR
SECTIONS 6-7
SECTIONS 6-7
SECTIONS 6-7
SECTIONS 6-7
SECTIONS 6-7
SECTIONS 6-7
LSPU College of Law
Gavino Aldamiz
vs
The Judge of the CFI of Mindoro, et.al.
G.R. No. L-2360 December 29, 1949
Moran, C.J.:
FACTS:
Santiago Rementeria was a Spaniard and a member of the commercial partnership “Aldamiz y Rementeria” died in Spain in 1937. A probate proceeding was instituted in the same year in the CFI of Mindoro by Gavino Aldamiz, one of the brothers of Santiago, represented by Atty. Juan Luna.
Gavino was appointed administrator, and represented by Atty. Luna up to January 21, 1947, when the order complained for was issued. In that complaint, it is stated that said attorney was the one who instituted the said testate proceedings 10 years ago and actively intervened in the same.
After 10 years from the date of his appointment, Gavino, through his counsel, Atty. Luna, submitted his accounts 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.
Atty. Luna 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. However, he failed to file a written claim and to notify the interested parties thereof.
The Court, after considering the whole evidence presented, issued its Order awarding respondent Atty. Luna an aggregate sum of P28,000 as payment of his professional services. The Court ordered payment of the said amount within 30 days.
Petitioner was able to pay only P5,000, and upon his failure to pay the balance of P23,000 after several demands made upon him by Atty. Luna, the latter filed an ex-parte motion for execution which was granted by the Court.
Pursuant to the Order of execution, two (2) parcels of land belonging to the commercial partnership “Aldamiz y Rementeria” and not to the testate estate of Santiago, with a total area of 357 hectares assessed at P182,360, was sold at a public auction in favor of Atty. Luna for only P20,000.
Petitioner filed for petition for certiorari.
ISSUE:
Whether or not issuing a writ of execution is the proper remedy.
HELD:
The Order of execution is null and void because a writ of execution is not the proper remedy or procedure allowed by the Rules of Court for the payment of debts and expenses for administration.
The proper procedure is for the Court to order the sale of personal estate or real property of the deceased and all the debts or expenses of administration should be paid out of the proceeds of the sale or mortgage.