
    Aguilar v. Vazquez.
    Appeal from the District Court of Humacao.
    No. 45.
    Decided March 15, 1904.
    Legacies. — Legacies subject to the performance of a condition are not recoverable until the condition imposed by the testator is fulfilled.
    Id. — Age cot Majority. — The right to recover a legacy of a sum of money, payable when the legatee becomes of age, does not depend upon the circumstance of the minor or legatee arriving at a certain age, but on the day when such minor is capable of performing all the acts of civil life; and, therefore, although the period when one attains his majority is fixed by legislation subsequent to the execution of the will, at an earlier age than that required on the date of such execution, it shall nevertheless be understood that the condition of the testator is fulfilled as soon as the legatee attains his majority in accordance with the subsequent legislation.
    Retroactive Effect of Laws. — No retroactive effeet is given to a law when the right claimed thereunder originated in acts occurring subsequently to the day when it went into effect.
    Counter-Claim. — A counter-claim which fails to specify the exact amount claimed therein contains a legal defect in the manner of presenting the same, and should not prevail.
    Taxes — Unlisted Credits. — Credits not declared for purposes of taxation cannot be collected in an action at law or a suit in the courts until the same are declared and the proper taxes are paid.
    Costs. — -When both parties have not lost their case on all points, the court should dispose of the matter of costs in accordance with equity..
    STATEMENT OE THE CASE.
    A hearing was had of the suit prosecuted in the District Court of Humacao by Ruperta Concepción Aguilar, of legal age, married and a resident of Guayama, with the consent of her hnsband, Antonio Moret, and represented in this Supreme Court by Attorney Juan de Guzman Benitez, against Edgardo Vázquez y Aguilar, property-owner, a resident of Guayama, who is represented by Attorney Jacinto Texidor, in the matter of the delivery of a money legacy and restitution of a deposit, which case is pending before us on appeal in cassation, now ordinary appeal, taken by Buperta Concepción Aguilar from the judgment delivered, which reads as follows :
    “Judgment. — In the city of Humacao, March 15, 1902. An oral and public hearing was had of the civil suit prosecuted by Attorney Juan Vías Ochoteco, on behalf of Ruperta Concepción Aguilar, of legal age, married, and a resident of Guayama, with the consent of her husband, Antonio Moret, plaintiff, against Edgardo Vázquez Aguilar, property-owner, of legal age, and a resident of Guayama, defendant, for the delivery of a money legacy, restitution of a cash deposit, payment of legal interest and costs, the latter party being represented by Attorney Rafael López Landrón.
    “The defendant filed his complaint praying that judgment be rendered adjudging defendant: 1. To deliver immediately to plaintiff the sum of eight thousand pesos, Mexican coin, or its equivalent in, the money now in circulation, being the amount of the legacy made to her son, Vicente, by Rafael Vázquez in his will; 2. To pay the plaintiff the sum of six hundred pesos of aforesaid money, or its equivalent in United States currency, which had been deposited with the above-mentioned Rafael Vázquez, of whom the defendant was heir; 3. To pay the interest on the aforesaid sums at the legal rate, from the date the action was commenced; 4. To pay all the costs.
    “The above demands were based on the following facts alleged in the complaint: 1. That upon the death of Rafael Vázquez y Váz-quez, late resident of Guayama, which occurred in the year 1890, by a will executed before José Mariano Capó, his legitimate son Edgardo was instituted universal heir to his estate, he accepting the inherit-anee without benefit of inventory; 2. That in said will and testament, a legacy, among others, was constituted in favor of the infant, Vicente, a child of the plaintiff, in the following terms: ‘I also bequeath eight thousand pesos to the infant Vicente, son of the aforesaid Ruperta Concepción, which sum shall not be delivered to him until he has attained his majority, my heir meanwhile being charged with the duty of delivering to the guardian of said minor an income of twenty-five pesos, currency, every month, in order that said guardian may attend to the subsistence and primary education of said Vicente, who, upon reaching his thirteenth to fourteenth year, shall be sent by said guardian to Europe or the United States for the purpose of learning a trade or other mechanical profession, whereupon my heir shall pay, as income of aforesaid capital, fifty pesos currency, deliverable every month to said guardian, who shall therewith provide for the expenses of his ward in those countries, should he remain there and, in the opinion of his guardian, to his profit and observe good conduct; otherwise, as also when he returns to Porto Rico, he shall be entitled to receive only the previous allowance of twenty-five pesos monthly; it being understood that in the event of Vicente’s death before reaching his majority, this legacy shall pass to his heirs, without my heir assuming greater obligation than he would have were Vicente living and residing in Porto Rico; in other words, he would not be obliged to deliver the eight thousand pesos to the heirs of the legatee until the time when the latter would have reached his majority, his indebtedness to them, in the meantime, to be only for the monthly income of twenty-five pesos’; 3. That the legatee, Vicente Aguilar, having died on September 1, 1897, his natural mother, Concepcion Aguilar, the plaintiff herein, was declared his sole intestate heir, by an order made November 30, of the same year, by the former court of first instance of Guayama; 4. That according to the certificate of baptism, the legatee, young Vicente Emilio Aguilar, was bom April 5, 1880, and, therefore, had he not died, would be to-day twenty-one and a half years old; 5. That on the other hand, Ruperta Concepción Aguilar had deposited with Rafael Vázquez, under date of June 16, 1883, the sum of six hundred pesos, of the money then in circulation, which deposit, thus far, has never been returned to her, either by Rafael Vazquez or his heir Edgardo; and that according to General Order No. 219 of the Military Government, which was then the absolute and supreme authority of the Island, a person was of age at twenty-one years, after tbe date of said order, namely, December 18, 1899, despite wbicb all efforts on tbe part of tbe person concerned to recover said legacy bad failed, as bad also been tbe case witb tbe proceedings to avoid litigation.
    “In support of ber claim, plaintiff alleged tbe first temporary provision of tbe Civil Code in force, whence, sbe beld, was derived tbe necessity of invoking tbe legislation prior to tbe Code, witb respect to tbe deposit claimed, and tbe provisions of said Code, as regards tbe legacy due ber by Edgardo Vázquez; articles 659, 661, paragraph 1 of 668, 773, 885, 858 and 859 of tbe Civil Code, referring to inheritance and legacies; as also general provisions 1100, 1101, 1108 and 1125 of tbe Civil Code, relating to defaults; indemnity for losses and damages, legal interest and obligations tbe fulfillment of wbicb has been fixed for a day certain; tbe aforesaid General Order No. 219, series of December 18, 1899, according to which a person is of age at twenty-one yéars; the doctrine of law 1, title 3, partida 5, upon deposits in general; that of law 2, of tbe same title and partida, witb reference to irregular deposits or tbe deposit of consumable property delivered by weight, number or measure; law 10, title 16, partida 6, upon tbe universality of rights and obligations attached to an inheritance; law 18, of tbe same title and partida, and judgments of November 6, 1858, and June 17, 1872, relating to tbe acceptance of tbe inheritance, whether express or implied; and finally law 8, title 22, partida 3, wbicb imposes the costs upon tbe persistent litigant.
    “Notice of tbe complaint was served upon Edgardo Vázquez Aguilar, who in answer thereto, pleaded tbe exception of lack of cause of action on tbe part of the plaintiff and filed a counter-claim for amount of payments made, praying that by final judgment tbe complaint be dismissed and bis counter-claim admitted, and that Ruperta Concep-ción Aguilar be adjudged to indemnify tbe heir Edgardo for all supplies and expenses by him shown to have been incurred during tbe pendency of the suit, for tbe benefit of the plaintiff, by reason of dues, fines and fees for tbe entry of the legacies, as also for any other purposes, in addition to tbe costs of tbe suit.
    “Tbe defendant, in adducing bis facts, admitted as true tbe allegations of tbe complaint, adding that the deposit of June 16, 1883, for tbe sum of six hundred pesos, Mexican money, was not made under precautions for identification' — -closed and sealed, for example— but as a loan without interest, which was very generously eompen-sated by the testator in his last will; and Edgardo Vazquez Aguilar, with his good offices, had rendered pecuniary assistance both to the minor, Vicente Emilio Aguilar, and to his mother and heir, Ruperta Concepcion Aguilar, for whose account he had advanced money for the payment of dues, fines and fees, in connection with the records for the purpose of carrying out the cautionary notice of the legacies affecting the estate.
    “On the strength of the above-mentioned facts, defendant raised the question of law, as to what legal provision should be applied, in the case of the infant legatee, Vicente Emilio Aguilar, to determine his majority, and also the issue both of fact and of law, for the recovery of the sums advanced and prescription of actions as regarded the loan, erroneously designated as a deposit. He accordingly claimed that pursuant to article 3 of the Civil Code, not modified, General Order of December 18, 1899, which fixed the majority of a person at twenty-one years, had no retroactive effect, and could not, for this reason, affect contracts or rights acquired under previous legislative action, to the prejudice of a third party, for which reason the legacy claimed is not yet due, according to paragraphs 1 and 2 of article 1125 of the Civil Code; the doctrine of quasi contracts, as defined by article 1887 of the same Code; the obligation to indemnify for dues, fines and expenses of entry incurred and advanced by defendant for account of the legatee, and exclusively for his convenience, in compliance with article 1893 of aforesaid Code; and the judgment of the Supreme Court of Spain, of June 8, 1875, admitting counterclaims or mutual demands, by reason of new facts set up against those of the complaint.
    “Notice of the counter-claim having been served upon plaintiff it was contested on the ground of a defect in the manner of its presentation, inasmuch as it failed to determine the exact amount claimed, although Edgardo Vázquez had paid the liquidated dues, as was his duty, according to the terms of the will, he having further incurred a fine for delay; and citing in support of her claim articles 523 and 532 of the Law of Civil Procedure, articles 1168 and 1200 of the Civil Code, and 46 and 50 of the Mortgage Law, she prayed that the counter-claim be dismissed.
    “At the proceedings for the taking of evidence the plaintiff submitted the following: 1. Certificate of baptism of the legatee, Vicente Emilio, bom April 5, 1880; 2. Declaration as heir made in favor of said Vicente Emilio, now in favor of the plaintiff, Ruperta Concepción Aguilar; 3. Registered copy of the will of Rafael Vazquez y Vázquez, executed June 4, 1890; 4. Original private document of June 16, 1883, wherein Rafael Vázquez declared that he had in his possession at the disposal of Ruperta Vázquez Aguilar, on deposit, six hundred pesos, Mexican currency; and 5. Comparison of the handwriting of the aforesaid private document by expert cali-graphers, in ease its identity should be denied, the public documents presented by the plaintiff to be also compared with their originals, if controverted.
    “The defendant offered the following evidence: 1. Interrogatories in sealed envelope to be answered under indecisive oath by Ruperta Concepción Aguilar; 2. Testimony of her husband, Antonio Moret; 3. A literal copy of the assessment schedule presented to the Insular Treasury on behalf of the plaintiff, as provided by the Hollander Act; 4. The testimony of the witness Genaro Cautiño, a merchant and resident of Guayama; and 5. Testimony of Juan Francisco Rivera, property-owner, also a resident of Guayama.
    “At the verbal hearing which took place February 24, 1902, counsel for defendant admitted the genuineness of the signature of Rafael Vázquez, attached to the document acknowledging the receipt on deposit of six hundred pesos, Mexican currency; the plaintiff, Ru-perta Concepción Aguilar, admitted that she had never demanded of Edgardo Vázquez or of his deceased father, Don Rafael, the six hundred pesos she claims as due her; the testimony of Antonio Moret was waived; Genaro Cautiño Vázquez testified that he was of age, married, a merchant, a relative of the defendant, had been guardian to Vicente Emilio, had no interest in the case, was not on intimate terms with either of the parties; that he was lessee of the hacienda of Vazquez, for whose account he paid the incomes of-the legacy; was a partner of Successors of Tomás Cano & Co., lessee of the hacienda of Vázquez; that the cautionary notice of the legacies in the Registry of Property was paid for by Edgardo Vázquez with money taken at the witness’s business firm, the party interested not having any, although willing to pay; the money given to Vázquez was charged to his account; he knew that the expenses, so far as the legacy of the minor was concerned, had been paid by Edgardo, and as to the other legacy, Vázquez had told him that he had also paid them; he knew that Concepción held a promissory note and had proposed to Edgardo that out of the amount of the same the expenses should be paid, as she bad no money; be could not state positively tbe sums paid by Edgardo Vázquez for dues and entry at tbe Registry and for other purposes, although be was sure that be bad paid tbe expenses of tbe cautionary notice and fiscal dues appertaining to tbe legacy of tbe minor Vicente. Tbe testimony of Juan Rivera having been waived, counsel for both parties presented their arguments, after which tbe proceedings for tbe taking of evidence were closed.
    “March 11 having been set for voting upon tbe judgment, with citation of tbe parties in tbe ITumaeao court, said judgment was unanimously rendered, dismissing tbe complaint and counter-claim, without special imposition of costs.
    “In tbe conduct of this case the rules of procedure have been observed, no objection of nullity having been entered.
    “Judge Ulpiano Valdés Cajes prepared tbe opinion of tbe court.
    “General Order No. 219, series of 1899, cited herein, does not expressly assign a retroactive effect to the new age of majority, fixed at twenty-one years.
    “Article 30 of tbe Civil Code in force ascribes no retroactive effect to civil laws, unless otherwise expressly prescribed therein.
    “Tbe legacy having been made and tbe encumbrance accepted by tbe heir under tbe rule of tbe Civil Code, it would evidently be assigning a retroactive effect to aforesaid General Order of 1899, were tbe maturity of the legacy and tbe legacy itself to be now subjected to a different law, after having been governed for many years by tbe provisions of tbe Civil Code.
    “Neither the testator, while instituting tbe legacy, nor tbe heir, while accepting tbe inheritance, could have had in mind any known majority other than tbe one at tbe time sanctioned by tbe Ciyil Code, namely, twenty-three years.
    “According to paragraph 1 of tbe temporary provisions of tbe Civil Code, not amended, which has been invoked by tbe plaintiff, tbe institution of tbe legacy should be governed by tbe Civil Code as a fact and a right originating thereunder.
    “Legacies, like obligations tbe fulfillment of which has been fixed for a day certain, cannot be demanded before tbe proper time.
    “Tbe counter-claim filed contains a legal defect in tbe manner of its presentation, since it lacks precision as to tbe amount, and therefore cannot be tbe subject of liquidation in proceedings for tbe execution oí a judgment; but even when it is declared not to lie, the-party alleging the same should be reserved his rights, so that he may recover from the plaintiff the amount of his disbursements.
    ‘•‘From the certificate issued by the Treasurer of Porto Rico-with reference to the property declared by Concepción Aguilar, it does not appear that she reported in her favor the credit of six hundred pesos, Mexican money, claimed by her, for the purposes of assessment, for which reason it is not recoverable by action at law or suit before any court or courts of the Island, until it has been properly declared and the taxes thereon paid, according to the terms of section 18 of ‘An act to provide revenues for the People of Porto Rico, and for other purposes.’
    “The claims of both parties having been disallowed, no special imposition of costs need be made.
    “In view of the legal provisions cited by both parties, and, furthermore, ‘An act to provide revenues for the People of Porto Rico, and for other purposes,’ we adjudge that we should declare and do declare, that the action brought by Ruperta Concepción Aguilar does not lie, although reserving to the plaintiff her right to recover the six hundred pesos, Mexican currency, as soon as she shall have reported said credit and paid the taxes thereon. The counter-claim filed by Edgardo Vazquez is likewise dismissed, he being also reserved his right to recover from Mrs. Aguilar the amount of said counterclaim, without special imposition of costs.
    “Thus by our judgment do we pronounce, order and sign. Salvador Fulladosa, J. M. Kearney, Ulpiano Valdés.”
    From, the foregoing decision Buperta Concepción Aguilar took an appeal in cassation for error of law, and the record having been forwarded to this Supreme Court, the appeal was conducted in conformity with the act of the Legislative Assembly of March 12, 1903. The record having been submitted to the parties for examination, a day was set for the hearing, at which arguments in support of their respective contentions were presented by counsel for both litigants.
    
      
      Mr. Guzmán Benitez (Juan), ior appellant.
    
      Mr. Texidor, for respondent.
   Me. Justice HeeNaudez,

after making the above statement of facts, delivered the opinion of the court.

The findings of fact of the judgment appealed from are accepted.

The issue deals in the first place with the legacy of a sum of money recoverable only when the condition imposed by the testator has been fulfilled.

Said condition was not made dependent on the circumstance of the minor’s reaching a certain age, but by the testator’s will, expressed in his testament, it was made to depend on the day when the legatee should be able to perform all the acts of civil life, and inasmuch as said capacity was attained upon his reaching the age of twenty-one years, pursuant to General Order No. 219, of December 18, 1899, it is evident that the condition imposed was fulfilled and the legatee could then have demanded the sum of money constituting the legacy, but as he died while still a minor, his mother, Ruperta Concepción Aguilar, becomes his heir, as provided in the will.

To the aforesaid General Order No. 219 no retroactive effect is attached when the right invoked, according thereto, originates in acts occuring subsequently to the day when it took effect, and in the case at issue it is evident that the right to the legacy claimed by the mother of the deceased minor originated only at the moment when the latter became of age, inasmuch as it is the only act which determines the fulfillment of the obligation voluntarily contracted by the instituted heir upon accepting purely and simply the inheritance from his father, Rafael Vázquez y Vazquez, and hence it follows tliat there has been no violation of article 3 of the Civil Code nor of rule 1 of the temporary provisions of said Code. '

The counter-claim filed by the defendant undoubtedly contains the legal defect of not having been properly presented, as it fails to comply with the requirements prescribed by article 523 of the Law of Civil Procedure, for which reason it was excepted to by the plaintiff.

From the certificate issued by the Treasurer of Porto Rico with reference to the property listed for assessment by Concepción Aguilar, it does not appear that she had reported in her favor, for purposes of taxation, the credit of six hundred pesos, Mexican currency, which she claims, for which reason said credit is not recoverable by an action at law or suit before any court or courts of the Island until it has been properly listed and the taxes thereon paid, as provided by article 301 of the Political Code of Porto Rico.

The parties plaintiff and defendant not having lost their case on all points, the court should give an equitable decision in the matter of costs, according to rule 63 of General Order No. 118, series of 1899.

, In view of the afore-mentioned legal texts and those cifed by the parties hereto, it is adjudged that partly affirming and partly reversing the judgment appealed from, according as it agrees or disagrees with the above findings, we should adjudge and do adjudge that Edgardo Vázquez Aguilar pay Ruperta Concepción Aguilar a sum equivalent in United States currency to the eight thousand pesos, Mexican money, object of the legacy claimed, with legal interest thereon from the day the action was brought; and we dismiss said action as to the portion thereof which relates to the recovery of the credit of six hundred pesos, Mexican currency, as also the counter-claim filed by the defendant, reserving to both parties their respective rights in the premises, which they may exercise in the proper manner, the costs of both the trial and appeal not to be specially imposed upon the parties.

The record of the District Court of Humacao is ordered to be returned to said court, together with a certificate of this decision, for proper action.

Ghief Justice Quiñones and Justice MacLeary concurred. Justices Figueras and Sulzbacher dissented.

Dissenting Opinion of

Justices Figueras and Sulzbacher.

The above-named justices concur in the following opinion:

They accept the findings of fact of the judgment appealed from, and those relating to the proceedings on appeal had in this court, and accept the first, second, third and fourth conclusions of law contained in the foregoing opinion.

In order to construe section 301 of the Political Code as has been done by the Humacao court and a majority of this Supreme Court, it would be necessary that the mere presentation before the courts of the document constituting the evidence of indebtedness should carry with it, unavoidably, an order for its immediate payment; but such is not the case within the order of procedure, because every document of indebtedness presented is subject to the contingencies of the discussion on the issue raised, to the statement of the debtor and to the evidence produced, until judgment is rendered in favor of the creditor and the moment arrives for the recovery thereof by compulsory process.

The presentation of the document and complaint has no-signification other than an appearance in court, without thereby prejudicing the pertinency of the claim therein brought forward.

Having in mind these reasons, no doubt it was that in the provision here analyzed the verb “to recover” is used instead of “to claim,” which would be the adequate and proper one had the purpose been to preclude the exercise before the court of the proper civil action, which, indeed, might on occasions result in irreparable injury to the party, and in serious detriment to the revenues of the Treasury.

No injustice can be attributed to the laws, so long as there is good reason to preserve them from such a charge, and this good reason is found in an interpretation which does not cause any harm to the interests of the Treasury of Porto Eico, nor impair the rights of parties who are forced to resort to judicial proceedings in order to enforce them.

To be consistent with the interpretation given to aforesaid section 301 in the foregoing opinion, all the proceedings had should be declared null and void, with costs against the trial court, because it does not seem fair and equitable that a suit should be conducted through all the formalities, with the attending costs to the plaintiff, and then inform the latter, in a judgment, that he has no right to resort to. judicial proceedings to recover the amount of the document presented.

In view of the provisions of rule 63 of General Order No. 118, series of 1899, we adjuge that, reversing the judgment appealed from, we should condemn and do condemn Edgardo Vázquez Aguilar to pay Euperta Concepción Aguilar a sum equivalent, in United States currency, to the eight thousand pesos, Mexican money, object of the legacy claimed, and in the same manner the deposit of ;six hundred Mexican pesos, or the equivalent thereof in United States currency, likewise demanded in the complaint, together with the legal interest thereon from the day the action was instituted; and we declare that the counter-claim presented does not lie; it being understood that the six hundred pesos of the deposit, or the equivalent thereof in United States currency, cannot be recovered by compulsory process until all the provisions of section 301 of the Political Code shall have been complied with, the costs of these proceedings to be imposed upon the defendant.  