THIRD DIVISION

[G.R. No. 127165. May 2, 2006.]

SALONGA HERNANDEZ & ALLADO , petitioner, vs . OLIVIA SENGCO

PASCUAL and THE HONORABLE COURT OF APPEALS , respondents.

DECISION

TINGA , J : p

Petitioner, a professional law partnership, brings forth this Petition for Review
assailing the Decision 1 of the Court of Appeals dated 22 December 1995. The appellate
court had a rmed two orders promulgated by the Malabon Regional Trial Court (RTC),
Branch 72 (Probate Court), in Sp. Proc. No. 136-MN, entitled "In the Matter of Testate
Estate of Doña Adela Pascual, Dr. Olivia S. Pascual, Executrix."
The case actually centers on two estate proceedings, that of Doña Adela Pascual
(Doña Adela) and the other, her husband Don Andres Pascual's (Don Andres), who
predeceased her. Don Andres died intestate, while Doña Adela left behind a last will and
testament. The dispute over the intestate estate of Don Andres has spawned at least two
cases already settled by this Court. 2
On 1 December 1973, an intestate proceeding for the settlement of the estate of
Don Andres was commenced by his widow Doña Adela before the then Court of First
Instance, now Regional Trial Court of Pasig, Branch 23 (Intestate Court), docketed as Sp.
Proc. No. 7554. Apart from his wife, who bore him no children, Don Andres was survived by
several nephews and nieces from his full-blood and half-blood brothers. 3 This proceeding
proved to be the source of many controversies, owing to the attempts of siblings Olivia
and Hermes Pascual, acknowledged natural children of Don Andres's brother, Eligio, to be
recognized as heirs of Don Andres. Olivia and Hermes Pascual procured the initial support
of Doña Adela to their claims. However, on 16 October 1985, the other heirs of Don Andres
entered into a Compromise Agreement over the objections of Olivia and Hermes Pascual,
whereby three-fourths (3/4) of the estate would go to Doña Adela and one-fourth (1/4) to
the other heirs of Don Andres, without prejudice to the nal determination by the court or
another compromise agreement as regards the claims of Olivia and Hermes Pascual. 4
Subsequently, the Intestate Court denied the claims of Olivia and Hermes Pascual. Said
denial was eventually a rmed by this Court in 1992 in Pascual v. Pascual-Bautista , 5
applying Article 992 of the Civil Code.
In the meantime, Doña Adela died on 18 August 1987, leaving behind a last will and
testament executed in 1978, designating Olivia Pascual as the executrix, as well as the
principal bene ciary of her estate. The will also bequeathed several legacies and devises
to several individuals and institutions. CTacSE

Olivia Pascual then engaged the services of petitioner in connection with the
settlement of the estate of Doña Adela. Their agreement as to the professional fees due to
petitioner is contained in a letter dated 25 August 1987, signed by Atty. Esteban Salonga in
behalf of petitioner and Olivia Pascual. It is stipulated therein, among others, that the nal
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 professional fee "shall be 3% of the total gross estate as well as the fruits thereof based
on the court approved inventory of the estate. Fruits shall be reckoned from the time of
[Olivia Pascual's] appointment as executrix of the estate. The 3% nal fee shall be payable
upon approval by the court of the agreement for the distribution of the properties to the
court designated heirs of the estate." 6
On 26 August 1987, private respondent, represented by petitioner, commenced a
petition for the probate of the last will and testament of Doña Adela before the Probate
Court, docketed as Sp. Proc. No. 136-MN and ra ed to Branch 72 presided by Judge
Benjamin M. Aquino, Jr. The petition was opposed by a certain Miguel Cornejo, Jr. and his
siblings, who in turn presented a purported will executed in 1985 by Doña Adela in their
favor. 7
After due trial, on 1 July 1993, the Probate Court rendered a Decision 8 allowing
probate of the 1978 Last Will and Testament of Doña Adela and disallowing the purported
1985 Will. Letters testamentary were issued to Olivia Pascual. 9 Cornejo attempted to
appeal this decision of the Probate Court, but his notice of appeal was denied due course
by the Probate Court, said notice "not having been accompanied by any record on appeal
as required under the Interim Rules and by Rule 109 of the Rules of Court." 1 0
On 27 July 1993, petitioner led a Notice of Attorney's Lien equivalent to three
percent (3%) of the total gross estate of the late Doña Adela S. Pascual as well as the
fruits thereof based on the court approved inventory of the estate, pursuant to the retainer
agreement signed by and between petitioner and Olivia S. Pascual, on 25 August 1987. In
an Order dated 4 November 1993, the Probate Court ruled that petitioner's "notice of
attorney's lien, being fully supported by a retainer's contract not repudiated nor questioned
by his client Olivia S. Pascual, is hereby noted as a lien that must be satis ed chargeable to
the share of Olivia S. Pascual." 1 1 This was followed by another Order, dated 11 November
1993, wherein it was directed "that notice be . . . given, requiring all persons having claims
for money against the decedent, Doña Adela S. Vda. de Pascual, arising from contracts,
express or implied, whether the same be due, not due, or contingent, for funeral expenses
and expenses of the last sickness of the said decedent, and judgment for money against
her, to le said claims with the Clerk of Court at Malabon, Metro Manila, within six (6)
months from November 4, 1993." 1 2
Accordingly, on 22 November 1993, petitioner led a Motion to Annotate Attorney's
Lien on Properties of the Estate of Doña Adela Vda. de Pascual. 1 3
It was at this stage, on 19 January 1994, that the Intestate Court rendered a
Decision in Sp. Proc. No. 7554, nally giving judicial approval to the aforementioned 1985
Compromise Agreement, and partitioning the estate of Don Andres by adjudicating one-
fourth (1/4) thereof to the heirs of Don Andres and three-fourths (3/4) thereof to the
estate of Doña Adela. The Intestate Court also awarded attorney's fees to Atty. Jesus I.
Santos, equivalent to 15% of the three-fourths (3/4) share of the estate of Doña Adela. 1 4
Olivia Pascual led a petition for annulment of the award of attorney's fees with the Court
of Appeals, but the same was denied, rst by the appellate court, then nally by this Court
in its 1998 decision in Pascual v. Court of Appeals. 1 5
On 26 April 1994, petitioner led a Motion for Writ of Execution for the partial
execution of petitioner's attorney's lien estimated at P1,198,097.02. The gure,
characterized as "tentative," was arrived at based on a Motion to Submit Project Partition
dated 26 October 1993 led by Olivia Pascual, which alleged the gross appraised value of
Doña Adela's estate at P39,936,567.19. This sum was in turn derived from the alleged
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 value of the total estate of Don Andres, three-fourths (3/4) of which had been adjudicated
to Doña Adela. At the same time, petitioner noted that the stated values must be
considered as only provisional, considering that they were based on a July 1988 appraisal
report; thus, the claim for execution was, according to petitioner, without prejudice to an
updated appraisal of the properties comprising the gross estate of Doña Adela. 1 6
On 29 April 1994, Olivia Pascual, through Atty. Antonio Ravelo, led her comment
and/or opposition to the motion for the issuance of a writ of execution on attorney's fees.
She argued that a lawyer of an administrator or executor should charge the individual
client, not the estate, for professional fees. Olivia Pascual also claimed, citing
jurisprudence 1 7 , that the counsel claiming attorney's fees should give su cient notice to
all interested parties to the estate, and that such was not accomplished by petitioner
considering that no notices were given to the several legatees designated in Doña Adela's
will. 1 8 It was further argued that the motion for execution was premature, considering that
the proceedings before the Intestate Court had not yet been terminated; that the
computation of the gure of P1,198,097.02 was erroneous; and that the enforcement of
the writ of execution on the undivided estate of Don Andres would prejudice his other heirs
entitled to one-fourth (1/4) thereof.
On 2 June 1994, the Probate Court issued the rst assailed order denying the
motion for writ of execution in view of the fact that "the bulk of the estate of the late Doña
Adela S. Vda. De Pascual is still tied-up with the estate of the late Don Andres Pascual, the
proceedings over which and the nal disposition thereof with respect to the partition and
segregation of what is to form part of the estate of the late Doña Adela S. Vda. De Pascual
is pending with another court sitting in Pasig, Metro Manila, and for having been
prematurely filed." 1 9
On 14 November 1994, Olivia Pascual, led with the Probate Court a Motion to
Declare General Default and Distribution of Testamentary Dispositions with Cancellation of
Administrator's Bond. It was noted therein that no creditor had led a claim against the
estate of Doña Adela despite due notice published pursuant to Section 1, Rule 86 of the
Rules of Court. The Probate Court was also informed of the fact that the proceedings
before the Intestate Court had already been terminated by reason of the 14 January 1994
Decision rendered by the latter court. It was also stated "that the corresponding estate
taxes had been paid as evidenced by the Estate Tax Return led with the Bureau of Internal
Revenue, and of the Certi cate of Authority issued by the said agency." 2 0 Interestingly, it
was also manifested that two of the properties that formed part of the estates of the
spouses, "the Ongpin Property" and "the Valenzuela Property," had in fact already been
partitioned between the estate of Doña Adela and the heirs of Don Andres at the ratio of
three-fourths (3/4) and one-fourth (1/4), respectively.

In response, petitioner led a Comment/Manifestation praying that an order be

issued:
(1) ordering the annotation of the attorney's lien on the properties
comprising the estate of Doña Adela Pascual; cECaHA

(2) a writ of partial execution be issued for the satisfaction of the

attorney's lien of the undersigned counsel [herein petitioner] in relation to the
Ongpin and Valenzuela properties for the amount of P635,368.14 , without
prejudice to the issuance of a writ of execution after the re-appraisal of the
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 present market value of the estate and the determination of the amount due to
[petitioner] as attorney's fees;

(3) ordering the appointment of a reputable appraisal company to re-

appraise the present market value of the estate of Doña Adela Pascual including
the fruits thereof for the purpose of determining the value of the attorney's fees of
[petitioner]; and

(4) after the re-appraisal of the estate of Doña Adela Pascual a writ of
execution be issued for the full satisfaction and settlement of the attorney's lien
of [petitioner]. 2 1

On 17 March 1995, the Probate Court issued an order which denied petitioner's
motion for a re-appraisal of the property and the issuance of a partial writ of execution "for
being prematurely led as there is no exact estate yet to be inventoried and re-appraised,
assuming re-appraisal would be proper, because the bulk of the estate subject of this
case, as far as this court is concerned, has not yet been turned over to the executrix or to
the court itself." 2 2
Through a petition for certiorari and mandamus, petitioner assailed the two orders
of the Probate Court denying its motion for the immediate execution, partial or otherwise,
of its claim for attorney's fees: the 2 June 1994 Order and the 17 March 1995 Order.
Nonetheless, the twin orders of the RTC were a rmed by the Court of Appeals, effectively
precluding petitioner's attempt to execute on its attorney's lien. The appellate court noted
that the attorney's lien issued by the Probate Court was chargeable only to the share of
Olivia Pascual, and not to the estate of Doña Adela, since it was Olivia Pascual who entered
into the agreement with petitioner for the payment of attorney's fees in connection with
the settlement of the estate of Doña Adela. Citing Lacson v. Reyes, 2 3 the Court of Appeals
asserted that as a rule an administrator or executor may be allowed fees for the necessary
expenses he has incurred but he may not recover attorney's fees from the estate.
The Court of Appeals likewise noted that in the retainer agreement between
petitioner and Olivia Pascual, it is stipulated that "the 3% nal fee shall be payable upon
approval by the court of the agreement for the distribution of the properties to the court
designated heirs of the estate." 2 4 On this score, the Court of Appeals ruled that as the
petition before it did not show "that an agreement on the distribution of properties of the
estate of Doña Adela S. Pascual has been submitted and approved by the probate court,"
2 5 the ling of the motion for execution and that of the motion for re-appraisal of the
market value of the estate were both premature.
Petitioner sought to reconsider the Decision of the Court of Appeals, but in vain. 2 6
Hence this petition.
Petitioner argues that as held in Occeña v. Marquez , 2 7 the counsel seeking to
recover attorney's fees for legal services to the executor or administrator is authorized to
le a petition in the testate or intestate proceedings asking the court, after notice to all the
heirs and interested parties, to direct the payment of his fees as expenses of
administration. 2 8 Lacson, it is alleged, was inappropriately cited, since that case involved
an executor who concurrently was a lawyer who subsequently claimed attorney's fees as
part of the expenses of administration. Petitioner also claims that the decision of the
probate court admitting Doña Adela's will to probate su ciently satis es the condition in
the Retainer Agreement that the nal fee be payable "upon approval by the court of the
agreement for the distribution of the properties to the court designated heirs of the
estate," the court-approved will comprising the agreement referred to in the contract.
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 Petitioner also takes exception to the Probate Court's nding that "the bulk of the
estate subject of this case, as far as this [c]ourt is concerned, has not been turned over to
the executrix or to the [c]ourt itself," on which the appellate court predicated its ruling that
the motion for a writ of execution was premature. Petitioner submits that the Probate
Court ineluctably has jurisdiction over the estate of Doña Adela, and has necessarily
assumed control over the properties belonging to the said estate. Thus, petitioner
continues, there is no longer need to await the turnover of the properties involved in the
intestate estate of Don Andres which constitute part of the testate estate of Doña Adela
since the Probate Court and the Intestate Court have concurrent jurisdiction over these
properties as they have not yet been physically divided. HEaCcD

Petitioner refers to the averment made by Olivia Pascual before the Probate Court
that the proceedings before the Intestate Court had already been terminated, and that the
proceeds of the sale of the Ongpin Property and the Valenzuela Property had in fact been
already divided based on the three-fourths (3/4) to one-fourth (1/4) ratio between the
estate of Doña Adela and the heirs of Don Andres. Petitioner further points out that the
Probate Court had authorized and approved the sale of the Ongpin Property, yet refused to
allow the partial execution of its claim for attorney's fees.
Finally, petitioner asserts that the Probate Court erred in refusing to grant the prayer
seeking the re-appraisal of the property of Doña Adela's estate. Such re-appraisal, so it
claims, is necessary in order to determine the three percent (3%) share in the total gross
estate committed to petitioner by reason of the Retainer Agreement.
It appears that the thrust of the assailed Decision of the Court of Appeals is along
these lines: that petitioner may directly claim attorney's fees only against Olivia Pascual
and not against the estate of Doña Adela; and that petitioner's claim is also premature
since contrary to the requisite stipulated in the Retainer Agreement, there is no court-
approved agreement for the distribution of the properties of the estate of Doña Adela as
yet.
As an initial premise, we consider whether a lawyer who renders legal services to the
executor or administrator of an estate can claim attorney's fees against the estate instead
of the executor or administrator. Petitioner correctly cites Occeña v. Marquez 2 9 as
providing the governing rule on that matter as previously settled in the 1905 case of
Escueta v. Sy-Juilliong, 3 0 to wit:
The rule is that when a lawyer has rendered legal services to the executor
or administrator to assist him in the execution of his trust, his attorney's fees may
be allowed as expenses of administration. The estate is, however, not directly
liable for his fees, the liability for payment resting primarily on the executor or
administrator. If the administrator had paid the fees, he would be entitled to
reimbursement from the estate. The procedure to be followed by counsel in order
to collect his fees is to request the administrator to make payment, and should
the latter fail to pay, either to (a) le an action against him in his personal
capacity, and not as administrator, or (b) le a petition in the testate or intestate
proceedings asking the court, after notice to all the heirs and interested parties, to
direct the payment of his fees as expenses of administration. Whichever course is
adopted, the heirs and other persons interested in the estate will have the right to
inquire into the value of the services of the lawyer and on the necessity of his
employment. 3 1

We reiterate that as a general rule, it is the executor or administrator who is primarily

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 liable for attorney's fees due to the lawyer who rendered legal services for the executor or
administrator in relation to the settlement of the estate. The executor or administrator may
seek reimbursement from the estate for the sums paid in attorney's fees if it can be shown
that the services of the lawyer redounded to the bene t of the estate. 3 2 However, if the
executor or administrator refuses to pay the attorney's fees, the lawyer has two modes of
recourse. First, the lawyer may le an action against the executor or administrator, but in
his/her personal capacity and not as administrator or executor. Second, the lawyer may le
a petition in the testate or intestate proceedings, asking the court to direct the payment of
attorney's fees as an expense of administration. If the second mode is resorted to, it is
essential that notice to all the heirs and interested parties be made so as to enable these
persons to inquire into the value of the services of the lawyer and on the necessity of his
employment.
Lacson v. Reyes , 3 3 cited by the appellate court, involved an executor who also
happened to be the lawyer for the heirs who had led the petition for probate. For that
reason, that case is not squarely in point to the case at bar. It was pronounced therein that
the administrator or executor of the estate cannot charge professional fees for legal
services against the same estate, as explicitly provided under Section 7, Rule 85 of the
Rules of Court of 1985. 3 4 No such rule exists barring direct recovery of professional legal
fees from the estate by the lawyer who is not the executor or administrator of the said
estate. The limitations on such direct recovery are nonetheless established by
jurisprudence, as evinced by the rulings in Escueta and Occeña.
The character of such claim for attorney's fees bears reiteration. As stated in
Escueta, it partakes the nature of an administration expense. Administration expenses
include attorney's fees incurred in connection with the administration of the estate. 3 5 It is
an expense attending the accomplishment of the purpose of administration growing out of
the contract or obligation entered into by the personal representative of the estate, and
thus the claim for reimbursement must be superior to the rights of the beneficiaries. 3 6

Notwithstanding, there may be instances wherein the estate should not be charged
with attorney's fees. If the costs of counsel's fees arise out of litigation among the
bene ciaries thereof themselves or in the protection of the interests of particular persons,
the estate generally cannot be held liable for such costs, although when the administrator
employs competent counsel on questions which affect his/her duties as the administrator
and on which he/she is in reasonable doubt, reasonable expenses for such services may
be charged against the estate subject to the approval of the court. 3 7 It has also been held
that an administrator who brings on litigation for the deliberate purpose of defrauding the
legitimate heirs and for his own bene t is not entitled to reimbursement for counsel's fees
incurred in such litigation. 3 8
Clearly then, while the direct recovery of attorney's fees from the estate may be
authorized if the executor refuses to pay such fees, and claimed through the ling of the
proper petition with the probate court, such claim remains controvertible. This is precisely
why Escueta and its progenies require that the petition be made with notice to all the
heirs and interested parties .
It is these perspectives that we apply to the case at bar. Notably, petitioner had led
both a Notice of Attorney's Lien and a Motion for Writ of Execution. These two pleadings
have distinct character and must be treated as such. AECDHS

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 After Doña Adela's will had been admitted to probate, petitioner had initially led a
Notice of Attorney's Lien wherein it identified itself as "the attorney for the executrix named
in the said will, Dra. Olivia S. Pascual", and sought to le its "claim and/or lien for attorney's
fees equivalent to Three Percent (3%) of the total gross estate," pursuant to the 1987
Retainer Agreement. Copies of this Notice of Attorney's Lien were furnished Attys.
Fortunato Viray, Jr. and Crisanto Cornejo, who appear on record to have served as
counsels for the various oppositors to the probate of the 1978 will of Doña Adela. This
Notice of Attorney's Lien was noted by the Probate Court in its Order of 4 November 1993,
"as a lien that must be satisfied chargeable to the share of Olivia S. Pascual."
It may be so that petitioner, in filing this Notice of Attorney's Lien, initially intended to
hold Olivia Pascual, and not Doña Adela's estate, liable for the attorney's fees. It did identify
itself as the lawyer of Olivia Pascual, and the Probate Court did note that the lien be
satis ed chargeable to the share of the executor. Yet it must also be noted that such lien,
as it is, is only contingent on the nal settlement of the estate of Doña Adela, at such time,
since the Retainer Agreement on which the lien is hinged provides that the nal fee "be
payable upon approval by the court of the agreement for the distribution of the properties
to the court designated heirs of the estate." 3 9 This is also made clear by the order noting
the lien, which quali ed that said lien was chargeable only to the share of Olivia Pascual,
hence implying that at the very least, it may be claimed only after her share to Doña Adela's
estate is already determinate.
In rendering its assailed Decision, the Court of Appeals relied on this quali cation
made by the Probate Court that the lien for attorney's fees was chargeable only to the
share of Olivia Pascual. Yet the Notice of Attorney's Lien only seeks to serve notice
of the pendency of the claim for attorney's fees, and not the payment of such
fees itself. On its own, the Notice of Attorney's Lien cannot serve as the basis
for the Probate Court to authorize the payment to petitioner of attorney's fees .
On the other hand, Escueta and its kindred cases do explicitly recognize
the recourse for the lawyer to directly make the claim for attorney's fees
against the estate, not the executor or administrator. The ling of the Notice of
Attorney's Lien and the quali catory character of the rulings thereon, do not
preclude the resort to the mode of recovery against the estate as authorized by
jurisprudence. Clearly then, we disagree with the opinion of the Court of Appeals
that attorney's fees can be claimed only against the share of Olivia Pascual .
The instant case is rooted in an incomplete attempt to resort to the second mode of
recovery of attorney's fees as authorized in Escueta, originating as it did from the denial of
petitioner's Motion for Writ of Execution, and not the Notice of Attorney's Lien. The Motion
did expressly seek the payment of attorney's fees to petitioner. Escueta and Occeña,
among other cases, did clearly lay down the manner under which such fees may be paid
out even prior to the nal settlement of the estate as an administration expense directly
chargeable to the estate itself. The critical question in the present petition is thus whether
this Motion for Writ of Execution satis es the requisites set in Escueta for a claim for
attorney's fees directly chargeable against the estate. It does not.
The fact that the prayer for attorney's fees was cast in a motion and not a petition
should not impede such claim, considering that the motion was nonetheless led with the
Probate Court. However, the record bears that the requisite notice to all heirs and
interested parties has not been satis ed . Doña Adela's will designated 19 other
individuals apart from Olivia Pascual, and four (4) different institutions as recipients of
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 devises or legacies consisting of real properties, jewelries, and cash amounts. Yet only
Olivia Pascual was served with a copy of the Motion for Writ of Execution, the motion
which effectively sought the immediate payment of petitioner's attorney's fees. As early as
29 April 1994, Olivia Pascual, in opposing the Motion for Writ of Execution, already pointed
out that petitioner had failed to give su cient notice to all interested parties to the estate,
particularly the several devisees and legatees so named in Doña Adela's will.
Such notice is material to the other heirs to Doña Adela's estate. The payment of
attorney's fees, especially in the amount of 3% of the total gross estate as sought for by
petitioner, substantially diminishes the estate of Doña Adela and may consequently cause
the diminution of their devises and legacies. Since these persons were so named in the
very will itself and the action for probate which was led by petitioner itself, there is no
reason why petitioner could not have given due notice to these persons on its claim for
attorney's fees.
The requisite notice to the heirs, devisees, and legatees is anchored on the
constitutional principle that no person shall be deprived of property without due process
of law. 4 0 The fact that these persons were designated in the will as recipients of the
testamentary dispositions from the decedent establishes their rights to the succession,
which are transmitted to them from the moment of the death of the decedent. 4 1 The
payment of such attorney's fees necessarily diminishes the estate of the decedent, and
may effectively diminish the value of the testamentary dispositions made by the decedent.
These heirs, devisees, and legatees acquire proprietary rights by reason of the will upon
the moment of the death of the decedent, incipient or inchoate as such rights may be.
Hence, notice to these interested persons of the claims for attorney's fees is integral, so
as to allow them to pose any objections or oppositions to such claim which, after all, could
lead to the reduction of their benefits from the estate. THaAEC

The failure to notify the other heirs, devisees or legatees, to the estate of Doña Adela
likewise deprives these interested persons of the right to be heard in a hearing geared
towards determining whether petitioner was entitled to the immediate payment of
attorney's fees. Notably, petitioner, in ling its Motion for Writ of Execution, had initially set
the hearing on the motion on 29 April 1994, but one day prior to the scheduled hearing,
gave notice instead that the motion was being submitted for the consideration of the
Probate Court without further argument. 4 2 Evidently, petitioner did not intend a full-blown
hearing to ensue on whether it was entitled to the payment of attorney's fees. Yet the claim
for attorney's fees is hardly incontrovertible.
That the Retainer Agreement set the attorney's fees at three percent (3%) of the
gross estate does not imply that the basis for attorney's fees is beyond controversy.
Attorney's fees in this case are in the nature of administration expenses, or necessary
expenses in the rst place. Any party interested in the estate may very well, in theory, posit
a myriad of objections to the attorney's fees sought, such as for example, that these fees
were not necessary expenses in the care, management, and settlement of the estate.
Whether or not such basis for valid objections exists in this case is not evident, but the fact
remains that all the parties interested in the estate, namely the other devisees and
legatees, were deprived of the opportunity to raise such objections as they were not
served notice of the Motion for Writ of Execution.
The instant claim for attorney's fees is thus precluded by the absence of the
requisite notices by petitioner to all the interested persons such as the designated heirs,
devisees, legatees, as required by the jurisprudential rule laid down in Escueta. However,
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 the Court of Appeals held that it was the prematurity of the claim for attorney's fees that
served as the fatal impediment. On this point, the Court does not agree.
Again, the remaining peripheral questions warrant clarification.
Escueta itself provides for two alternative approaches through which counsel may
proceed with his claim for attorney's fees. The rst involves a separate suit against the
executor or administrator in the latter's personal capacity. The second approach is a direct
claim against the estate itself, with due notice to all interested persons, led with the
probate court.

In the same vein, the existence of the Retainer Agreement between petitioner and
Olivia Pascual allows petitioner two possible causes of action on which to claim attorney's
fees in connection with the administration of the estate of Doña Adela. The rst possible
cause of action pivots on the Retainer Agreement, which establishes an obligation on the
part of Olivia Pascual to pay the nal fee of 3% of the gross total estate of Doña Adela,
payable upon approval by the Probate Court of the agreement for the distribution of the
properties to the court — designated heirs of the estate. Necessarily, since the recovery of
attorney's fees is premised on the Retainer Agreement any award thereupon has to await
the nal ascertainment of value of the gross total estate of Doña Adela, as well as the
approval by the Probate Court of the agreement for the distribution of the properties. The
Retainer Agreement makes it clear that the nal payment of attorney's fees is contingent
on these two conditions, 4 3 and the claim for attorney's fees based on the Retainer
Agreement cannot ripen until these conditions are met.
Moreover, it cannot be escaped that the Retainer Agreement was entered into
between petitioner and Olivia Pascual prior to the ling of the probate petition, and that at
such time, she had no recognized right to represent the estate of Doña Adela yet. This
circumstance further bolsters our opinion that if petitioner insists on the judicial
enforcement of the Retainer Agreement, its proper remedy, authorized by law and
jurisprudence, would be a personal action against Olivia Pascual, and not against the
estate of Doña Adela. If this were the recourse pursued by petitioner, and Olivia Pascual is
ultimately held liable under the Retainer Agreement for attorney's fees, she may
nonetheless seek reimbursement from the estate of Doña Adela if she were able to
establish that the attorney's fees paid to petitioner were necessary administration
expenses. DTcHaA

The second or alternative recourse is the direct claim for attorney's fees against the
estate, as authorized under Escueta. The character of this claim is not contractual in
nature, but rather, as a reimbursement for a necessary expense of
administration, and it will be allowed if it satis es the criteria for necessary
expenses of administration . Its entitlement can be established by the actual services
rendered by the lawyer necessary to the accomplishment of the purposes of
administration, and not necessarily by the contract of engagement of the attorney's
services.
By ling their claim directly against the estate of Doña Adela, petitioner has clearly
resorted to this second cause of action. There are consequent advantages and
disadvantages to petitioner. Since the claim arises irrespective of the contingencies as
stipulated in the Retainer Agreement, the attorney's fees may be collected against the
estate even before the nal determination of its gross total value or the nal approval of
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 the project of partition. As earlier stated, such claim for reimbursement is superior to the
right of the bene ciaries to the estate, and as such, there is need to nally determine the
respective shares of the beneficiaries before attorney's fees in the nature of administration
expenses may be paid out.
The one distinct disadvantage, however, is that the Retainer Agreement cannot be
deemed binding on the estate or the Probate Court since the estate is not a party to such
contract. This would not preclude the Probate Court from enforcing the provisions of the
Retainer Agreement if, in its sound discretion, the terms of payment therein are
commensurate to the value of the actual services necessary to the administration of the
estate actually rendered by petitioner. Yet if the Probate Court does choose to adopt the
Retainer Agreement as binding on the estate of Doña Adela, petitioner may again be
precluded from immediate recovery of attorney's fees in view of the necessity or
precondition of ascertaining the gross total value of the estate, as well as the judicial
approval of the final agreement of partition.
In any event, whether the claim for attorney's fees was pursued through a separate
suit against Olivia Pascual (in her personal capacity) for the enforcement of the Retainer
Agreement, or against the estate of Doña Adela as reimbursement for necessary
administration expenses, it remains essential that a hearing be conducted on the claim. In
either case too, the hearing will focus on the value of the services of the petitioner and the
necessity of engaging petitioner as counsel.
We reiterate that the direct claim against the estate for attorney's fees must be
made with due notice to the heirs, devisees, and legatees. The failure of petitioner to give
such notice renders its present claim ine cacious for now. Indeed, there is su cient
cause to dismiss outright petitioner's Motion for Writ of Immediate Execution led with
the Probate Court, for its failure to notify therein the other persons interested in the estate
of Doña Adela. Nonetheless, to authorize said outright denial at this stage could unduly
delay the settlement of the estate of Doña Adela, considering the likelihood that petitioner
would again pursue such claim for attorney's fees as the right to which is a rmed by law
and jurisprudence.
Hence, in order not to unduly protract further the settlement of the estate of Doña
Adela, the Court deems it proper instead to mandate the Probate Court to treat the Motion
for Writ of Immediate Execution as a petition seeking a court order to direct the payment
of attorney's fees as expenses of administration, but subject to the condition that
petitioner give due notice to the other designated devisees and legatees so designated in
the will of the claim prior to the requisite hearing thereon. Petitioner may as well seize such
opportunity to formally amend or recon gure its motion to a petition to direct payment of
attorney's fees. Once this step is accomplished, there should be no impediment to
petitioner's claim for recovery of attorney's fees as reimbursement for necessary
administration expenses, within the terms established by law, jurisprudence, and this
decision. THIAaD

One nal note. Petitioner's nal prayer before this court is that it be issued a partial
writ of execution, consistent with its position before the Probate Court that it is already
entitled to at least a partial payment of its attorney's fees. This prayer cannot obviously be
granted at this stage by the Court, considering the fatal absence of due notice to the other
designated bene ciaries to the estate of Doña Adela. Still, we do not doubt that the
Probate Court, within its discretion, is capacitated to render the award of attorney's fees
as administration expenses either partially or provisionally, depending on the particular
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 circumstances and its ultimate basis for the determination of the appropriate attorney's
fees.
WHEREFORE, the petition is GRANTED IN PART. The Decision of the Court of
Appeals dated 22 December 1995 and the Orders of the Regional Trial Court of Malabon,
Branch 72, dated 2 June 1994 and 17 March 1995 are hereby SET ASIDE insofar as said
orders denied petitioner's Motion for Writ of Immediate Execution dated 26 April 1994.
Petitioner is hereby directed to set for hearing its claim for attorneys fees, giving due
notice thereof to all the heirs, devisees, and legatees designated in the 1978 Last Will and
Testament executed by Doña Adela Pascual. The Regional Trial Court is directed to treat
petitioner's aforesaid motion as a PETITION for the payment of attorney's fees as
expenses of administration, and after due hearing resolve the same with DISPATCH,
conformably with this decision. No pronouncement as to costs.
SO ORDERED.
Quisumbing, Carpio, Carpio Morales and Velasco, Jr., JJ., concur.

Footnotes
1. Penned by then Associate Justice (now Supreme Court Justice) Alicia Austria-Martinez,
concurred in by Associate Justices Jaime M. Lantin and Bernardo LL. Salas.
2. Namely Pascual v. Pascual-Bautista, G.R. No. 84240, 25 March 1992, 207 SCRA 561, and
Pascual v. Court of Appeals, 360 Phil. 403 (1998).
3. See Pascual v. Court of Appeals, supra at 408.
4. Id. at 409.
5. Supra note 2.
6. Records, p. 2093.

7. See Rollo, p. 40.

8. Id. pp. 40-52.

9. Id. at 51.
10. Id. at 56. In an Order dated 4 November 1993, infra note 11.
11. Id. at 55. The Probate Court characterized the notice of attorney's lien as having been
filed by "Atty. [Roberto H.] Hernandez," although in truth, said notice was signed by Atty.
Hernandez in behalf of petitioner.

12. Records, p. 2154. It appears that the Order was subsequently published in the three (3)
consecutive editions of the Guardian newspaper in December 1993 and January 1994.
Id. at 2162.
13. Rollo, pp. 57-60.
14. See Pascual v. Court of Appeals, supra note 2 at 410.
15. Supra note 2.
16. Rollo, p. 73.
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 17. Particularly, Sato v. Rallos, cited as 12 SCRA 89 (sic) [September 30, 1964], citing
Aldemis v. Judge of the CFI of Mindoro, L-2360, December 29, 1949.
18. See rollo, p. 77.
19. Id. at 82.
20. Id. at 84.
21. Rollo, p. 91.
22. Id. at 100-A.
23. Cited as 182 SCRA 729, 730.
24. Rollo, p. 36.
25. Id.
26. The Motion for Reconsideration was denied in a Resolution dated 11 November 1996.
27. Cited as 60 SCRA 38, 45.

28. Rollo, p. 18.

29. 158 Phil. 249 (1974).

30. 5 Phil. 405 (1905).

31. Occeña v. Marquez, supra note 29, at 256-257; citing Escueta v. Sy Juilliong, 5 Phil. 405;
Piliin v. Joson, et al., 41 Phil. 26. See also Ramos v. Bidin, Nos. L-53650 & L-55460, 28
May 1988, 161 SCRA 561, 569. The rule as first pronounced in Escueta was derived from
American jurisprudence, considering that the provisions of the then Code of Civil
Procedure relating to the settlement of estates of deceased persons were taken from
similar provisions in the United States. Escueta v. Sy Juilliong, supra note 30 at 408.
32. See Gonzales-Orense v. Court of Appeals, No. L-80526, 18 July 1988, 163 SCRA 477,
480; citing Uy Tioco v. Imperial, 53 Phil. 802; Aldamiz v. Judge of the CFI Mindoro, et al.,
85 Phil. 228.

33. G.R. No. 86250, 26 February 1990, 182 SCRA 729.

34. "When the executor or administrator is an attorney, he shall not charge against the
estate any professional fees for legal services rendered by him."
35. V. FRANCISCO, V-B THE REVISED RULES OF COURT IN THE PHILIPPINES (1970 ed.), p.
146, citing 24 C.J.S. 424.

36. Ibid.
37. Id. at 152.
38. Id. citing Dacanay v. Hernandez, 53 Phil. 824.
39. CA rollo, p. 33.
40. See CONSTITUTION, Art. III, Sec. 1.

41. See CIVIL CODE, Art. 777.

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 42. See Record, pp. 2196-2197.
43. On that score, petitioner submits before us that the probated will serves as the basis for
the distribution of the estate, and may be considered as the court-approved agreement
for the distribution of the estate, as referred to in the Retainer Agreement. This argument
contradicts the well-settled rule that for the probate of a will, the court's area of inquiry is
limited to the extrinsic validity thereof, and not the intrinsic validity or efficacy of the
provisions of the will or the legality of any devise or legacy. See e.g., Sumilang v.
Ramagosa, et al., 129 Phil. 636, 639 (1967); citing Nuguid v. Nuguid, No. L-23445, 23
June 1966. The admission of the will to probate only evinces judicial satisfaction as to
the due execution of the will, and not approval of the testamentary dispositions therein.
Hence, the order granting probate cannot be considered as of yet as one sanctioning the
distribution of the estate in accordance with the testamentary provisions.

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