SECOND DIVISION

[G.R. No. L-27952. February 15, 1982.]

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS, Administratrix, petitioner-
appellee, vs. MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO RAMIREZ,
Legatees, oppositors-appellants.

Ignacio R. Ortigas for appellee.

Messrs. Luna, Purugganan, Sison & Ongsiako for oppositor-appellants.

Messrs. Gamboa & Hofileña for movant.

Messrs. Quasha, Asperilla, Zafra, Tayag & Archeta for oppositor M. Vda. de Ramirez.

SYNOPSIS

Jose Eugenio Ramirez, a Filipino national, died in Spain with only his widow as compulsory heir. His will
was admitted to probate by the Court of First Instance of Manila, Branch X. The administratrix of the
estate submitted a project of partition giving one part of the estate to the widow "en pleno dominio'' in
satisfaction of her legitime while the other part of the "free portion" to his two grandnephews Roberto
and Jorge Ramirez, as the oppositors-appellants. Furthermore, one third of the free portion is charged
with the widow's usufruct and the remaining two thirds (2/3) with a usufruct in favor of Wanda
Wrobleski. Jorge and Roberto Ramirez opposed the project of partition as well as the substitutions
provided by the testator as to the usufructs of the widow and of Wanda. Nonetheless, the lower court
approved the project of partition in its order dated May 3, 1967. Jorge and Roberto appealed.

The Supreme Court upheld the vulgar substitution of Wanda's usufruct despite her having survived the
testator as said substitution under Art 859 of the Civil Code includes not only death but also refusal or
incapacity to accept the inheritance but disallowed the fideicommissary aspect of the same as the
substitutes are not related to the heir as required by Art. 863 of the said Code. The Court further ruled
that: (a) the widow who is entitled to one-half of the estate "en pleno dominio" as her legitime is not
entitled to the one third usufruct over the free portion, hence the question on its substitution has
become moot and (b) that a usufruct in favor of an alien, albeit a real right does not vest title to the land
in the usufructuary and therefore not contrary to the Constitution.

Order modified.

SYLLABUS

1. CIVIL LAW; TESTAMENTARY SUCCESSION; WILLS; WHEN LEGITIME IS MORE THAN TESTATOR'S
DISPOSITION; EFFECT. — The widow who is entitled to one-half of the estate "en pleno dominio" as her
legitime which is more than what she is given under the will is not entitled to the one third usufruct over
the free portions which is an additional share in the estate that will run counter to the testator's
intention.
2. ID.: ID.; ID.; SUBSTITUTION; DEFINITION. — "Substitution is the appointment of another heir so
that he may enter into the inheritance in default of the heir originally instituted" (Art. 857, Civil Code).

3. ID.; ID.; ID.; ID.; KINDS. — There are several kinds of substitutions, namely: simple or common,
brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil Code). According to Tolentino,
Although the Code enumerates four classes, there are really two principal classes of substitutions: the
simple and the fideicommissary. The others are merely variations of these two.'' (III Civil Code, p.185
[1973]). The simple or vulgar is that provided in Art. 859 of the Civil Code while the fideicommissary
substitution is described in Art. 863 of the same Code.

4. ID.; ID.; ID.; ID.; VULGAR SUBSTITUTION; COVERAGE. — Vulgar substitution is valid although the
heir survived the testator or stated differently did not predecease the testator because dying before the
testator is not the only case for vulgar substitution. It also includes refusal or incapacity to accept the
inheritance as provided in Art. 859 of the Civil Code.

5. ID.; ID.; ID.; ID.; FIDEICOMMISSARY SUBSTITUTION; DEGREE OF RELATIONSHIP REQUIRED; NOT
PRESENT IN CASE AT BAR. — Art. 863 of the Civil Code validates a fideicommissary substitution
"provided such substitution does not go beyond one degree from the heir originally instituted.'' Hence in
the case at bar, appellants are correct in their claim that the substitution is void because the substitutes
are not related to the heir originally instituted.

6. ID.; ID.; ID.; I D.; MEANING OF "ONE DEGREE" EXPLAINED. — "Scaevola, Maura, and Traviesas
construe 'degree' as designation, substitution, or transmission. The Supreme Court of Spain has
decidedly adopted this construction. From this point of view, there can be only one transmission or
substitution, and the substitute need not be related to the first heir. Manresa, Morell, and Sanchez
Roman however, construe the word 'degree' as generation, and the present Code providing that the
substitution shall not go beyond one degree 'from the heir originally instituted.' The Code thus clearly
indicates that the second heir must be related to and be one generation from the first heir. From this, it
follows that the fideicommissary can only be either a child or a parent of the first heir. These are the
only relatives who are one generation or degree from the fiduciary." (Tolentino, I I I Civil Code pp. 193-
194 [1973]).

7. ID.; ID.; ID.; ID.; FIDEICOMMISSARY SUBSTITUTION; OBLIGATION OF FIDUCIARY TO DELIVER THE
INHERITANCE TO THE SECOND HEIR. — Fideicommissary substitution is void where there is no absolute
duty imposed on the first heir to transmit the usufruct to the substitutes as required by Arts. 865 and
857 of the Civil Code but in fact, the appellee admits "that the testator contradicts the establishment of
a fideicommissary substitution when he permits the properties subject of the usufruct to be sold upon
mutual agreement of the usufructuaries and the naked owners."

8. CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES; PROHIBITION AGAINST ACQUISITION OF

LANDS BY ALIENS; DOES NOT COVER USUFRUCT. — Notwithstanding the opinion that the Constitutional
provision which enables aliens to acquire private lands does not extend to testamentary succession for
otherwise the prohibition will be for naught and meaningless, the usufruct in favor of an alien is upheld,
because the same, albeit a real right, does not vest title to land in the usufructuary and it is the vesting
of title to land in favor of aliens which is proscribed by the Constitution.

DECISION

ABAD SANTOS, J p:

The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio Ramirez
among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his two
grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the
companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for substitutions.
llcd

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow as
compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch X, on
July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate. In due time she
submitted an inventory of the estate as follows:

"INVENTARIO

Una sexta parte (1/6) pro-indivisa de un terreno,

con su mejoras y edificaciones, situado en la

Escolta, Manila P500,000.00

Una sexta parte (1/6) pro-indivisa de dos parcelas

de terreno situadas en Antipolo, Rizal 658.34

Cuatrocientos noventa y un (491) acciones de la 'Central

Azucarera de la Carlota' a P17.00 por accion 8,347.00

Diez mil ochocientos seiz (10,806) acciones de la

'Central Luzon Milling Co.,' disuelta y en liquidacion,

a P0.15 por accion 1,620.90

Cuenta de Ahorros en el Philippine Trust Co. 2,350.73

—————
 TOTAL P512,976.97

MENOS:

Deuda al Banco de las Islas Pilipinas, garantizada

con prenda de las acciones de La Carlota P5,000.00

—————

VALOR LIQUIDOP507,976.97"

The testamentary dispositions are as follows:

"A. — En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambos menores de edad, residentes en
Manila, I. F., calle Wright, No. 1818, Malate, hijos de su sobrino D. Jose Ma. Ramirez, con sustitucion
vulgar a favor de sus respectivos descendientes, y, en su defecto, con sustitucion vulgar reciproca entre
ambos.

"El precedente legado en nuda propiedad de la participacion indivisa de la finca Santa-Cruz Building, lo
ordena el testador a favor de los legatarios nombrados, en atencion a que dicha propiedad fue creacion
del querido padre del otorgante y por ser aquellos continuadores del apellido Ramirez.

"B. — Y en usufructo a saber: —

a. — En cuanto a una tercera parte, a favor de la esposa del testador, Da. Marcelle Ramirez, domiciliada
en IE PECO, calle del General Gallieni, No. 33, Seine, Francia, con sustitucion vulgar u fideicomisaria a
favor de Da. Wanda de Wrobleski, de Palma de Mallorca, Son Rapiña, Avenida de los Reyes 13,

b. — Y en cuanto a las dos terceras partes restantes, a favor de la nombrado Da. Wanda de Wrobleski,
con sustitucion vulgar y fideicomisaria, a saber: —

"En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo Jankowski, de Son Rapiña,
Palma de Mallorca; y en cuanto a la mitad restante, a favor de su sobrino, D. Horace V. Ramirez, San Luis
Building, Florida St. Ermita, Manila, I.F.

"A pesar de las sustituciones fideicomisarias precedentemente ordinadas, las usufructuarias nombradas
conjuntamente con los nudo propietarios, podran en cualquier momento vender a tercero los bienes
objeto delegado, sin intervencion alguna de los titulares fideicomisarios."

On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the
deceased is to be divided into two parts. One part shall go to the widow "en pleno dominio" in
satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto Ramirez "en
nuda propriedad." Furthermore, one-third (1/3) of the free portion is charged with the widow's usufruct
and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar
substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan
Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because of the
first heirs (Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not related to the second heirs or substitutes
within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over
real property in the Philippines in favor of Wanda de Wrobleski, who is an alien, violates Section 5,
Article XIII of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in
the Santa Cruz (Escolta) Building between the widow Marcelle, and the appellants, violates the
testator's express will to give this property to them. Nonetheless, the lower court approved the project
of partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to this
Court.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership.
They admit that the testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of the
Civil Code "If the only survivor is the widow or widower, she or he shall be entitled to one-half of the
hereditary estate." And since Marcelle alone survived the deceased, she is entitled to one-half of his
estate over which he could impose no burden, encumbrance, condition or substitution of any kind
whatsoever. (Art. 904, par. 2, Civil Code). cdrep

It is the one-third usufruct over the free portion which the appellants question and justifiably so. It
appears that the court a quo approved the usufruct in favor of Marcelle because the testament provides
for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who is entitled
to one-half of the estate "en pleno dominio" as her legitime and which is more than what she is given
under the will is not entitled to have any additional share in the estate. To give Marcelle more than her
legitime will run counter to the testator's intention for as stated above his dispositions even impaired
her legitime and tended to favor Wanda.

2. The substitutions.

It may be useful to recall that "Substitution is the appointment of another heir so that he may enter into
the inheritance in default of the heir originally instituted." (Art. 857, Civil Code.) And that there are
several kinds of substitutions, namely: simple or common, brief or compendious, reciprocal, and
fideicommissary. (Art. 858, Civil Code.) According to Tolentino, "Although the Code enumerates four
classes, there are really only two principal classes of substitutions: the simple and the fideicommissary.
The others are merely variations of these two." (III Civil Code, p. 185 [1973]).

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

"ART. 859. The testator may designate one or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die before him, or should not wish, or should be
incapacitated to accept the inheritance.
"A simple substitution, without a statement of the cases to which it refers, shall comprise the three
mentioned in the preceding paragraph, unless the testator has otherwise provided."

The fideicommissary substitution is described in the Civil Code as follows:

"ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is
entrusted with the obligation to preserve and to transmit to a second heir the whole or part of
inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided further that the fiduciary or first heir and the
second heir are living at time of the death of the testator."

It will be noted that the testator provided for a vulgar substitution in respect of the legacies of Roberto
and Jorge Ramirez, the appellants, thus: "con sustitucion vulgar a favor de sus respectivos
descendientes, y, en su defecto, con substitucion vulgar reciproca entre ambos." The appellants do not
question the legality of the substitution so provided.

The appellants question the "sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in
connection with the one-third usufruct over the estate given to the widow Marcelle. However, this
question has become moot because as We have ruled above, the widow is not entitled to any usufruct.

The appellants also question the "sustitucion vulgar y fideicomisaria" in connection with Wanda's
usufruct over two-thirds of the estate in favor of Juan Pablo Jankowski and Horace V. Ramirez.

They allege that the substitution in its vulgar aspect is void because Wanda survived the testator or
stated differently because she did not predecease the testator. But dying before the testator is not the
only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance as
provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that it
is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the
heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided
such substitution does not go beyond one degree from the heir originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

"Scaevola, Maura, and Traviesas construe 'degree' as designation, substitution, or transmission. The
Supreme Court of Spain has decidedly adopted this construction. From this point of view, there can be
only one transmission or substitution, and the substitute need not be related to the first heir. Manresa,
Morell, and Sanchez Roman, however, construe the word 'degree' as generation, and the present Code
has obviously followed this interpretation, by providing that the substitution shall not go beyond one
degree 'from the heir originally instituted.' The Code thus clearly indicates that the second heir must be
related to and be one generation from the first heir.
"From this, it follows that the fideicommissary can only be either a child or a parent of the first heir.
These are the only relatives who are one generation or degree from the fiduciary." (Op. cit., pp. 193-
194.).

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as
required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator
contradicts the establishment of a fideicommissary substitution when he permits the properties subject
of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked owners." (Brief,
p. 26).

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void
because it violates the constitutional prohibition against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

"SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be transferred or
assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the
public domain in the Philippines." (Art. XIII.).

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the Constitution
covers not only succession by operation of law but also testamentary succession. We are of the opinion
that the Constitutional provision which enables aliens to acquire private lands does not extend to
testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien
would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for
a devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a
real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor
of aliens which is proscribed by the Constitution. LexLib

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed as
follows:

One-half (1/2) thereof to his widow as her legitime;

One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked ownership and
the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan Pablo Jankowski and
Horace V. Ramirez.

The distribution herein ordered supersedes that of the court a quo. No special pronouncement as to
costs.

SO ORDERED.
Barredo (Chairman), Concepcion, Jr., De Castro, Ericta and Escolin, JJ., concur.

Aquino, J., took no part.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. L-27766 February 15, 1982

Philippine Commercial and Industrial Bank v. Sobredo

SECOND DIVISION

[G.R. No. L-27766. February 15, 1982.]

PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of the deceased
plaintiff C.N. HODGES, plaintiff appellant, vs. JUAN SOBREDO and ROSALIO CARTECIANO, defendants-
appellees.

Tirol and Tirol for plaintiff-appellant.

Nicanor D. Sorogon for defendants-appellees.

SYNOPSIS

After the finality of the Court of Appeals' judgment ordering plaintiff C.N. Hodges to pay defendant
Sobredo P480.00 on his counterclaim which should be offset against the court a quo's judgment of
P1,000.00 with interest, the PCIB, the appointed administrator of plaintiff's estate, filed a motion for the
execution of the amount adjudged plus costs in the CFI and Municipal courts of Iloilo.

Defendants filed an urgent motion to declare the Notice of Sale illegal and to suspend the sale at public
auction on the ground that the notice did not conform to the writ of execution; that in view of the
modification by the Court of Appeals of the decision of the CFI, the defendants should pay only the sum
of P520.00 plus interest at the rate of 1% per month from May 23, 1953 and not P1,000.00 as stated in
the Notice of Sale; that said Notice of Sale was made less than 10 days from receipt of the writ of
execution by Carteciano without giving him sufficient time to pay the money judgment, hence, contrary
to Rule 39, Sec. 11 of the Rules of Court; and that the Notice of Sale directed the sheriff to collect the
attorney's fees in the amount of P1,000.00 when the same was already paid by the defendants to Atty.
Leon P. Gellada, the former counsel of the late C.N. Hodges

The sale at public auction of the defendant's property was held in abeyance. Thereafter, the trial court
declared the Notice of Sale illegal; fixed the total amount payable by Carteciano after deducting the
amount of P450.00, the counterclaim of Sobredo allowed by the appellate court plus interest as of Sept.
23, 1966 at 1946.93; and held that there was no need to pay plaintiff the attorney's feet.
On motion for reconsideration by the PCIB, the court modified the judgment by including the amount of
P46.20 representing the bill of costs allowed for the plaintiff in the CFI.

On appeal, the Supreme Court held that the court a quo correctly gave to Carteciano the benefit of
Sobredo's counterclaim of P480.00 which was allowed by the appellate court, making me amount due to
the Hodges estate as of May 23, 1954 only P520.00 but held that it was improper to deduct again the
amount of P480.00 representing "amount due to Carteciano being solidary co-debtor with Sobredo" for
it had already been previously deducted from the principal amount. Hence, the total amount payable by
defendants as of Sept. 23, 1966 is P1,426.93, not P946.93 plus P1,000.00 as attorney's fees which was
due not personally to the attorney but to the Hodges estate.

SYLLABUS

1. REMEDIAL LAW; JUDGMENTS; COUNTERCLAIM TO BE OFFSET FROM THE AMOUNT TO BE

EXECUTED.; CASE AT BAR. — It was proper for the court a quo to give to Carteciano the benefit of
Sobredo's counterclaim of P480,00 which was allowed by the Court of Appeals. Hence as of May 23,
1954, the principal amount due to the Hodges estate was only P520.00 as correctly stated in the
computation. However, it was improper to deduct again the amount of P480.00 representing "amount
due to Carteciano being solidary co-debtor with Sobredo" as stated also in the computation for it had
already been previously deducted from the principal amount. The result is that the total amount
payable by the defendants as of September 23, 1966, is P1,426.93, not P946.93.

2. LEGAL ETHICS ATTORNEY'S FEES PAYABLE TO PREVAILING PARTY AND NOT TO THE COUNSEL
PERSONALLY. — The payment of P100.00 to Atty. Leon P. Cellada, plaintiff's counsel, should not have
been deducted from what was due under the judgment because the attorney's fees which bad been
stipulated in the contract between Hodges on the one hand and Sobredo and Carteciano on the other
hand were not due personally to the attorney but to Hodges and ultimately to his estate.

DECISION

ABAD SANTOS, J p:

This case involves a picayune amount but it has travelled through the entire judicial system of the
Philippines.

C.N. Hodges sold a truck to Juan Sobredo for P1,800.00. Not being able to pay cash for the truck,
Sobredo and Rosalio Carteciano executed a promissory note wherein they promised to pay Hodges
jointly and severally the sum of P1,800.00 with interest at the rate of 1% per month plus 10% as
attorney's fees in case of litigation.

Sobredo paid only P800.00 so Hodges sued him and the surety in the Municipal Court of Iloilo which
decided in favor of the plaintiff.

Defendants appealed to the Court of First Instance of Iloilo. There Carteciano claimed he was a mere
guarantor, not a surety. Both defendants also claimed damages for the attachment of their properties.
However, the Court of First Instance in a decision dated November 4, 1960, rendered the following
judgment: cdrep

"IN VIEW OF THE FOREGOING, judgment is hereby rendered in favor of the plaintiff C.N. Hodges and
against the defendants Juan Sobredo and Rosalio Carteciano, ordering the latter two to pay jointly and
severally to the plaintiff C.N. Hodges the sum of P1,000.00, with interest at the rate of 1% per month
beginning June 30, 1953 until the full amount is paid; to pay jointly and severally to said plaintiff the sum
of P100.00 as attorney's fees and to pay the cost of the proceedings.

"For lack of merits, the counterclaim interposed by defendants Juan Sobredo and Rosalio Carteciano are
hereby dismissed without costs."

Defendants appealed to the Court of Appeals where Sobredo got partial relief because in a decision
promulgated on January 28, 1965, the court rendered the following judgment:

"WHEREFORE, the judgment appealed from is modified in the sense that plaintiff is ordered to pay
defendant Juan Sobredo P480.00 on his counterclaim which should be offset as of May 23, 1954 against
the judgment of P1,000.00 with interest for the plaintiff."

While the case was pending in the Court of Appeals, Hodges died on December 25, 1962, and Philippine
Commercial and Industrial Bank (PCIB) was appointed administrator of his estate.

After the decision of the Court of Appeals became final, PCIB filed a motion with the CFI of Iloilo for the
execution of the amount adjudged plus costs in the CFI and Municipal Court. No objection to the motion
was interposed so it was granted on June 10, 1966, and a writ of execution was issued on June 22, 1966.

On July 21, 1966, defendants filed an urgent motion to declare the notice of sale illegal and to suspend
the sale at public auction on the ground that the notice did not conform to the writ of execution; that in
view of the modification by the Court of Appeals of the decision of the Court of First Instance, the
defendants should pay only the sum of P520.00 plus interest at the rate of 1% per month from May 23,
1953 and not P1,000.00 with interest at the rate of 1% per month as stated in the notice of sale; that the
notice of sale was made on June 30, 1966, less than ten days from receipt of the writ of execution by
Rosalio Carteciano, without giving him sufficient time to pay the money judgment, hence, contrary to
Rule 39, Section 11 of the Rules of Court; and finally that the notice of sale directed the sheriff to collect
the attorney's fees in the amount of P100.00 when the same was already paid by the defendants to
Atty. Leon P. Gellada, the former counsel of the late C.N. Hodges.

On July 23, 1966, the Court issued an order directing the Sheriff to "hold in abeyance the sale at public
auction the property or properties of the defendant Rosalio Carteciano . . . until such time that this court
shall have decided the exact amount to be executed against the defendant Rosalio Carteciano including
attorney's fees in the final judgment handed down by the Court of Appeals dated January 28, 1965."

On September 20, 1966, the court issued the following order:

"This motion dated July 21, 1966, is an Urgent Motion to Declare the Notice of Sale at Public Auction as
Illegal and to Suspend the Sale of the Properties Described in the Notice on July 25, 1966 at 9:00 A.M.
The Court, pending resolution of this motion, in an Order dated July 23, 1966, ordered the Provincial
Sheriff or any of his authorized deputies to hold in abeyance the sale at public auction of the properties
of defendant Rosalio Carteciano on July 25, 1966 at 9:00 A.M., until such time that the exact amount to
be executed against defendant Rosalio Carteciano including attorney's fees shall have been determined.

"Upon perusal of the record this Court finds that the Notice of Sale at Public Auction dated June 30,
1966, duly signed by Mr. Jose Dineros, Senior Deputy Sheriff did not conform to the Writ of Execution
dated June 22, 1966, hence defective and erroneous. Furthermore, it was found by this Court that the
Notice of Sale at Public Auction was made less than ten (10) days after the levy of the properties of the
defendant Rosalio Carteciano, without giving the latter sufficient time to pay the money judgment
hence contrary to the provisions of Sec. 11, Rule 39, of the New Rules of Court, thereby making the
proceedings irregular.

"With respect to the exact amount to be executed against defendant Rosalio Carteciano, this Court
takes into consideration the decision of the Lower Court dated November 4, 1960, the dispositive
portion of which reads as follows:

'IN VIEW OF THE FOREGOING, judgment is hereby rendered in favor of the plaintiff C.N. Hodges and
against the defendants Juan Sobredo and Rosalio Carteciano, ordering the latter to pay jointly and
severally to the plaintiff C.N. Hodges the sum of P1,000.00, with interest at the rate of 1% per month
beginning June 30, 1953 until the full amount is paid; to pay jointly and severally to said plaintiff the sum
of P100.00 as attorney's fees and to pay the costs of the proceedings.'

and the decision of the Court of Appeals promulgated on January 28, 1965, modifying the above-quoted
decision, the dispositive portion of which reads:

'WHEREFORE, the judgment appealed from is modified in the sense that plaintiff is ordered to pay
defendant Juan Sobredo P480.00 on his counterclaim which should be offset as of May 23, 1954 against
the judgment of P1,000.00 with interest for plaintiff. No costs in this instance.'

"It is clear from the above-quoted decision of the Court of Appeals that from June 30, 1953 to May 23,
1954 or for a period of ten months and twenty three days, the amount of P1,000.00 due to plaintiff
Hodges will bear an interest of 1% per month which is computed by this Court to be P107.59. Taking into
account the modification of the judgment by the Court of Appeals, the amount of P480.00 which is the
counterclaim of Juan Sobredo allowed by the appellate Court shall be deducted from P1,000.00 making
a difference of P520.00 which shall bear interest of 1% per month from May 23, 1954 until fully paid.
From May 23, 1954 to September 23, 1966 or for a period of 148 months, the amount of P520.00 will
bear an interest of P769.60.

"The plaintiff claims that defendant Rosalio Carteciano is not entitled to the benefit of the modification
of the judgment in favor of Juan Sobredo because the judgment is modified with respect to Juan
Sobredo only and not to Rosalio Carteciano. This contention is without merit because the judgment
states that the amount of P480.00 should be offset as of May 23, 1954 against the judgment of
P1,000.00, with interest for the plaintiff, which judgment also includes defendant Rosalio Carteciano he
being jointly and solidarily liable with the other solidary debtor Juan Sobredo. It would be absurd and
ambiguous to state that one solidary debtor will have more obligation than the other solidary debtor
who is fortunate only to abscond free from his obligation just because he could not be reached by
judicial process as is the case of defendant Juan Sobredo. Since Juan Sobredo is entitled to P480.00 from
plaintiff, Rosalio Carteciano should also avail of such benefit.

"Summarizing, the exact amount to be executed against the defendant Rosalio Carteciano is as follows:

P107.59 interest o P1,000.00 at 1% per month

or 10 months & 23 days

P520.00 principal amount payable after deducting

P480.00 due to Sobredo

P769.60 interest of P520.00 for 148 months

P 29.74 costs of the suit

————

P 1,426.93

— 480.00 amount due to Carteciano being solidary

co-debtor with Sobredo

P 946.93 total amount payable by Carteciano as of

September 23, 1966

"As regards the amount of P100.00 for attorney's fees, this amount was already paid to Atty. Leon P.
Gellada, plaintiff's counsel who handled this case up to the appellate Court as shown by a certification
submitted to this Court duly signed by Atty. Leon P. Gellada.

"IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, the Notice of Sale at Public Auction dated June 30,
1966, is hereby declared Illegal and the expenses incident to the publication of the Notice of Sale shall
not be charged against defendant Rosalio Carteciano. It is hereby ordered further that the exact amount
to be executed against defendant Rosalio Carteciano as of September 23, 1966, shall be P946.93. Let
copy of this Order be served by the Sheriff or any of his authorized deputies to defendant Rosalio
Carteciano personally so that the latter could be given time to settle his obligation before another
Notice of Sale at Public Auction shall have been published."
On October 5, 1966, PCIB filed a motion for reconsideration of the above-quoted order and in response
thereto, the court issued the following order dated November 16, 1966: llcd

"This is a motion for reconsideration of the Order of this Court dated September 20, 1964, declaring the
notice of sale at public auction dated June 30, 1966, as illegal and fixing the exact amount to be
executed against Rosalio Carteciano, one of the defendants.

"Upon review of the records and taking into account the pleadings submitted, this Court finds that
through oversight the bill of costs allowed for the plaintiff in the Court of First Instance amounting to
P46.20 was not included in the computation of the exact amount to be executed against Rosalio
Carteciano.

"WHEREFORE, the Order of this Court dated September 20, 1966 is hereby modified by including the
amount of P46.20 to the exact amount to be executed against Rosalio Carteciano in aforesaid Order.
With respect to other points raised by the plaintiff in his Motion for Reconsideration, for lack of merits,
the same are hereby DENIED."

PCIB filed a notice of appeal on December 1, 1966, and thereafter the following were likewise filed: (a) a
printed Record on Appeal consisting of 88 pages; (b) Appellant's printed brief consisting of 22 pages; and
(c) Appellees' printed brief consisting of 19 pages.

In its brief, PCIB makes three assignments of errors, namely:

"I. THE COURT OF FIRST INSTANCE ERRED IN HOLDING THAT THE EXACT AMOUNT TO BE EXECUTED
AGAINST THE DEFENDANT-APPELLEE ROSALIO CARTECIANO IS THE SUM OF P946.93 AS OF SEPTEMBER
23, 1967.

"II. THE COURT OF FIRST INSTANCE ERRED IN HOLDING THAT THE NOTICE OF SALE ISSUED WITHIN
(10) DAYS FROM THE LEVY ON EXECUTION WITHOUT GIVING THE DEFENDANT-APPELLEE ROSALIO
CARTECIANO SUFFICIENT TIME TO PAY THE MONEY JUDGMENT, AND WHICH DOES NOT CONFORM TO
THE WRIT OF EXECUTION, IS ILLEGAL.

"III. THE COURT OF FIRST INSTANCE ERRED IN HOLDING THAT PAYMENT OF ATTORNEY'S FEES TO
ATTY. LEON P. GELLADA IS VALID AND CONSEQUENTLY, THE DEFENDANTS-APPELLEES NEED NOT PAY
THE SAME TO THE PLAINTIFF-APPELLANT."

We sustain the first and the third assignment of errors.

Anent the first assignment of error, it was proper as the court a quo said, to give to Carteciano the
benefit of Sobredo's counterclaim of P480.00 which was allowed by the Court of Appeals. Hence as of
May 23, 1954, the principal amount due to the Hodges estate was only P520.00 as correctly stated in
the computation. However, it was improper to deduct again the amount of P480.00 representing
"amount due to Carteciano being solidary co-debtor with Sobredo" as stated also in the computation for
it had already been previously deducted from the principal amount. The result is that the total amount
payable by the defendants as of September 23, 1966, is P1,426.93 not P946.93.
With regard to the third assignment of error, the payment of P100.00 to Atty. Leon P. Gellada, plaintiff's
counsel, should not have been deducted from what was due under the judgment because the attorney's
fees which had been stipulated in the contract between Hodges on the one hand and Sobredo and
Carteciano on the other hand were not due personally to the attorney but to Hodges and ultimately to
his estate. Moreover, it appears that as early as January 24, 1964, or two years after the death of
Hodges, his heirs had paid in full Atty. Gellada for all his legal services. prLL

WHEREFORE, the orders of the court a quo dated September 20 and November 16, 1966, are hereby
modified in that the appellees shall pay to the plaintiff the sum of P1,473.13 (P1,426.93 plus P46.20)
with interest at 1% per month from September 23, 1966, until fully paid plus P100.00 as attorney's fees.
No costs.

SO ORDERED.

Barredo (Chairman), Aquino, Concepcion, Jr., De Castro, Ericta and Escolin, JJ., concur.