
    Cívico v. Rodríguez.
    Appeal from the District Court of Mayagüez.
    No. 6.
    Decided December 10, 1903.
    Heir — Legatee.—The heir is obligated to pay the legacy to the legatee.
    Obligation — Novation.—The novation of an obligation is not established by the simple coincidence of some depositions, unless their truthfulness be evident, this being a matter in which instruments, private documents, or any basis of written evidence are ordinarily made use of.
    Contracts. — Contracts in which the amount of the prestations of one or both of the contracting parties exceeds three hundred dollars must be reduced to writing, even though they be private.
    Default. — Persons obliged to deliver or to do something are in default from the moment when the creditor demands the fulfillment of the obligation, judicially or extrajudicially, save in the cases excepted under article 1100 of the Civil Code.
    
      Id. — The debtor of a sum of money, if in default, is bound to the payment of the interest agreed upon, or of the legal interest, if there be no agreement, when there has been no stipulation to the contrary.
    Legatee — Payment of Interest. — It is a necessary requisite that the testator should have expressly ordered the payment of interest for the legatee to have a right to the same from the date of the former’s death.
    Heir — Default.—The heir is in default from the moment the legatee makes a judicial demand for the legacy.
    STATEMENT OE THE CASE.
    This is a case prosecuted in the District Court of Maya-giiez, by Francisco Cívico, in his capacity as heir of Soledad García y Cívico, plaintiff, represented by her counsel, Herbert E. Smith, against Abraham Rodríguez y Saint Stelli, defendant, represented and defended in this Supreme Court, successively, by José de Diego and Eduardo Acuña, for the recovery of a debt; which case is pending before us on appeal in cassation for violation of law, now appeal, taken by Abraham Rodriguez Saint Stelli, from the judgment* rendered by aforesaid court, which, literally transcribed, reads as follows:
    “Judgment. — In the city of Mayagüez, December 10, 1902. — The hearing has been had in this declaratory action prosecuted through his counsel Smith, by Francisco Cívico, single, of legal age, engaged in industrial pursuits, a resident of Cabo Rojo, in his capacity as heir of Soledad García y Cívico, as plaintiff, against the defendant Abraham Rodriguez Saint Stelli, of legal age; married, property-holder and likewise a resident of Cabo Rojo, represented by his counsel José de Diego.
    “On August 12, 1902, Smith, on behalf of Francisco Cívico, brought an action in this court against Abraham Rodriguez, based upon the following facts: Nicolás Rodríguez, in his last will and testament, recorded as a public document on August 6, 1879, bequeathed, by the ninth clause thereof, to Josefa and Soledad García y Cívico, the sum of six thousand pesos, Spanish money. The term allowed by the testator for the payment of said money having expired, defendant continued to pay the interest thereon, and had paid on account, before the death of Josefa, two thousand two hundred pesos, three thousand eight hundred pesos still remaining unpaid, whereof three thousand belonged to Soledad, in her own right, and eight hundred as heir of Josefa. When Rodriguez Saint Stelli, on August 16, 1902, executed a mortgage deed in favor of Scliulze & Co., lie mentioned therein the debt of three thousand eight hundred pesos in favor of Soledad García y Cívico. Notwithstanding the friendly efforts made by the latter before her death, she did not succeed in obtaining payment of either the principal or the interest thereon from 1892. Señora García died on November 6, 1901, leaving a testament duly recorded on January 24, 1902, wherein his client, Cívico, was constituted her sole and universal heir. Cívico demanded from Abraham Rodriguez payment of the balance of the legacy, and was offered by the latter in settlement six cuerdas of land. The action instituted by Cívico was exempt from the ‘act of reconciliation’, as provided by section 16 of ‘An Act to secure the effectiveness of judgments’, approved March 1, 1902, and plaintiff prayed that after complying with the legal formalities, the complaint be sustained with costs against defendant, and further prayed that an attachment be levied upon so much' of the debtor’s property as would be sufficient to secure the effectiveness of the judgment in due time to be rendered.
    “The writ of attachment having been issued as requested, notice of the complaint was served upon the defendant, who was given twenty days within which to file his answer. Defendant filed his answer through his counsel, José de Diego, who set forth the following facts: That he accepted the first, second, third, fourth and fifth allegations of the complaint so far as they would not prove inconsistent with the subsequent facts alleged in the answer; that he likewise accepted the sixth allegation of the complaint with the following addition: that the plaintiff agreed with the defendant to accept in settlement of his credit, eight cuerdas of land in barrio ‘Bajura’ of Cabo Rojo, the boundaries whereof were: on the north and west, by property of Julio P. Castro, on the south, by that of Nicolás Font, and on the east, by that of Rocamora Hermanos; that Cívico, after accepting the agreement, had tried to rescind it, on the advice of his lawyer, to whom he had to deliver a large sum, which rescission was opposed by defendant, and while matters thus stood, the action was instituted and in addition to this, an unjust attachment had been levied to the prejudice of defendant. He therefore prayed that the complaint be dismissed, with costs against the plaintiff, against whom, in a supplementary prayer, he set up a counter-claim based upon the following facts : He reproduced the second and third allegations of his answer. The attachment levied occasioned damages to his client, which in due time would be proven, and he prayed that the counter-claim be sustained and Cívico condemned to comply with the agreement arrived at, with all the costs and damages caused to his client by the attachment levied on his property. Notice of the counter-claim having been served upon the plaintiff, he answered the same alleging that he reiterated all the facts set up and the law announced in the complaint; that it was not true that any agreement bad been arrived at; neither was is true that Cívico had tried to rescind any contract, which, so far as he was concerned, did not exist; that Nbraham Rodriguez had made propositions to his client for a settlement, which were rejected by the latter; that after the attachment had been levied, he had personally and through the intervention of some friends, made new propositions which were likewise rejected; wherefore he prayed that said counterclaim be dismissed, with costs against Rodriguez Saint Stelli.
    “The parties being summoned to appear for the proposal of evidence, confession in court, presentation of documents, comparison thereof, and examination of witnesses were proposed, which being declared pertinent by an order of October 17 of 11118 year, were ordered to be taken, the adverse party being cited.
    “Among the documents filed by the plaintiff there appear : a certificate of the will executed by Nicolás Rodríguez on November 29, 1873, by the eighth clause of which he bequeaths to Josefa Cívico and her daughter, Soledad García, six thousand pesos, to be divided between them, and directed by clause nine, that said legacy be delivered to them by his executors, four months after his death, and if by reason of any unforeseen circumstance it were impossible to do so, then said delivery to be made eighteen months after the 'date of his death; and by the twelfth clause he constituted as heir to all his property his son Abraham Isaac Rodriguez, whom he also appointed, together with another person, executor of his last will and testament; another certificate of the will executed on November 2, 1901, by Soledad García y Cívico, in the fifth clause whereof she appoints as her sole and universal heir her adopted son Francisco Cívico; and another certificate of the mortgage deed executed on August 16, 1892, by Abraham Rodriguez, in favor of Schulze & Co., in the fourth clause whereof Rodriguez mentions a debt of three thousand eight ‘hundred pesos in favor of Soledad García, as an encumbrance existing upon the property mortgaged in said deed.
    “The defendant, in addition to other evidence, having offered oral testimony, three witnesses testified at the hearing, that on the 25th of July last, while at the house of Abraham Rodriguez, in Cabo Rojo, they had witnessed an agreement made between said Rodríguez and Cívico whereby the former was to deliver to the latter eight cuerdas of land in barrio ‘Bajura’, as a final settlement of the differences existing between them.
    “At the oral hearing, after the introduction of the evidence, the counsel for the parties made their arguments, and a day being set for the delivery of judgment, the vote on same being unanimous, and on 5th instant the said judgment was rendered in open court.
    “A testator may charge not only his heir, but also his legatee with the obligation of making bequest^ and legacies. When a testator charges one of his heirs with the obligation of making a legacy, said heir shall alone be bound to .the fulfillment thereof.
    “ The rules of procedure have been observed in the conduct of this trial.
    “ Associate Judge Luis Méndez Vaz prepared the opinion of the court.
    “ The rights to the succession of a person are transmitted from the moment of his death. Succession is conferred by the will of a person as expressed in a testament. An inheritance includes all the property, rights and obligations of a person, which are not extinguished by his death, and heirs succeed the deceased in all his rights and obligations by the mere fact of his death.
    “ Although the testimony of witnesses is one of the means of proof admitted by the Civil Code and the Law of Civil Procedure, in the present case the court does not consider the testimony introduced as sufficiently strong to show the existence of the agreement said to have been entered into by the defendant and plaintiff, not only because said agreement was not even set out in a private document, but also because the amount of the claim, which is. the object of aforesaid agreement, exceeds three hundred dollars, United States currency.
    “ The litigant who loses his case on all points should be condemned to pay the costs.
    “ In view of the provisions of articles of the Law of Civil Procedure and. of the Civil Code, applicable to the case, as also General Order Ho. 118, we adjudge that we should sustain and do sustain the complaint herein, and consequently we condemn the defendant to pay the sum claimed with legal interest thereon, from December 1, 1892, and absolve the plaintiff from the counter-claim set up, with costs against defendant.
    “Thus by this our judgment, finally adjudging, do we pronounce, order and sign.. — -Arturo Aponte. — J. A. Erwin. — Luis Méndez Yaz. — Publication: The foregoing judgment was read and published by Judge Luis Méndez Yaz in open court this December 10, 1902.- — Certified by me — Juan Arroyo Mestre”.
    Notice of this judgment having been served upon the said Rodriguez Saint Stelli, he took an appeal in cassation therefrom for error of law, which appeal was allowed and the record ordered to be forwarded to this court, after summoning the parties to appear within the legal term, and the said parties having entered their appearance, the appeal having been proceeded with as an appeal in cassation, it was subsequently treated as an appeal, in accordance with the provisions of the law approved March 12 last, converting this Supreme Court into a Supreme Court of Appeals, counsel for appellant and respondent being present and arguing in support of their respective claims.
    
      Messrs, de Diego and Eduardo Acuña, for appellant. '
    
      Mr. Smith, for respondent.
   Me. Justice Sulzbacheb,

after making the above state-, ment of facts, delivered the opinion of the court as follows:

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

In the complaint a request is made that Abraham Rodriguez be adjudged to pay three thousand eight hundred pesos, Spanish money, being equivalent to $2260, United States currency, and legal interest from December 1, 1892, to the date of payment thereof, with costs of the proceedings; while defendant prayed that the complaint be dismissed with costs against-the plaintiff, and further filed a counterclaim, requesting that Francisco Cívico be condemned to comply with the agreement entered into, and to pay the damages attending the attachment levied upon his property to secure the effectiveness of the judgment, with costs against said plaintiff.

It appears that Nicolás Rodríguez, in the ninth clause of his testament, executed on November 29, 1873, ordered that six thousand dollars, bequeathed by him to Josefa Cívico and her daughter Soledad García, be delivered to them four months after his death, and in case this should not be. possible by reason of some unforeseen circumstance, then said delivery was to be made eighteen months thereafter, which period could not be extended; with the understanding that after the first four months had expired, the proceeds of the rent earned by the masonry house which the testator owned and which was situated on the plaza of the town of Cabo Rojo, were to be paid to the legatee, deducting from said rent five hundred twelve dollars for purr poses mentioned in the will; and if at the expiration pf the eighteen months, for some good reason, the sum bequeathed could not he paid, the matter was to be settled between the parties, in a friendly and equitable manner, the testator Nicolás Rodríguez appointing as,,his sole and universal heir his acknowledged son, Abraham Isaac Rodriguez.

Abraham Rodriguez, as the sole and universal heir of Nicolás Rodríguez, is bound to pay Juan Cívico the legacy left by the testator to Josefa Cívico and her daughter Soledad (Jarcia, whose sole and universal heir'is at present Francisco Cívico, deducting from said legacy the two thous- and two hundred pesos, Spanish money, which Josefa had received before her death, according to the admission of the party plaintiff, said obligation being imposed upon him by articles 659, 858 and 859 of the Civil Code, applicable to the present case.

Although the various elements of evidence introduced at the trial show that Francisco Cívico and Abraham Rodriguez tried to settle the differences existing between them, in connection with the payment of the legacy which the former claims from the latter, who proposed the novation of the manner of payment by effecting the same in lands instead of money, the existence of such novation of the obligation has not been proven; for the testimony of the witnesses, who had not been called to witness the transaction which they declared was consummated by the parties litigant, but heard of it on the occasion of their visiting the house of Rodriguez on other business, is not sufficient to convince the court that the novation existed, especially in view of article 1248 of the old Civil Code, applicable to the case, which recommends that care be taken to avoid the final decision of matters,# upon the strength of testimony of witnesses, unless the truth of the same be evident,- in which instruments, private documents, or any basis of written evidence, are ordinarily made use of; to which is added article 1280 of the same Code, which under paragraph 6 provides that besides the contracts mentioned therein, all other contracts in which the amount of the prestations of one of the two contracting parties exceeds three hundred ■ pesos, must be reduced to writing, even though it he private.

According to articles 1100 and 1108 of aforesaid Code? “ persons obliged to deliver or to do something are in default from the moment when the creditor demands the fulfillment of the obligation, judicially or extrajudicially, the demand of the creditor, in order that default may exist, not being necessary, if the obligation or law declares it expressly, or if by reason of its nature and circumstances it may appear that the fixing of the period within which the thing was to he delivered or the services rendered, was a determinate cause to constitute the obligation and when the obligation consists in the payment of a sum of money, and the debtor should be in default, if there be no stipulation to the contrary, he is bound to pay the interest agreed upon, or the legal interest, if there he no agreement.

It does not appear from the record that the plaintiff, Francisco Cívico, creditor by reason of a legacy of a sum of money, had on any particular date made a formal demand upon the defendant, Abraham Rodriguez, for the payment ■ of said legacy, or that the testator had expressly ordered the payment of interest, which is a necessary requisite for his legatee to have a right to the same from the date of his death, according to the provisions of article 884 of aforesaid Code, whence it follows that payment thereof is due from the date when judicial demand of the legacy was made, that is to say, from August 12, 1902, when the action was instituted.

The defendant has not lost his case on all points, for, as - shown above, the complaint should be dismissed as regards payment of interest from December 1, 1892, inasmuch as the same is due only from the date of the institution of the suit, and, therefore, rule 63 of General Order 118, series of 1899, is not applicable to the case at bar.

In view of the aforementioned legal authorities we adjudge that we should affirm and do affirm the judgment of December 10, 1902, from which this appeal is taken, but modify the same to the effect that the defendant Abraham Rodriguez, in addition to the sum claimed, is only bound to pay legal interest thereon from August 12, 1902, when the action was instituted, without special imposition of costs in either the trial court or on appeal. The record is ordered to be returned to the District Court of Mayagüez with the proper certificate. ,

Chief Justice Quiñones and Justices Hernández and Mac-Leary concurred.

Mr. Justice Figueras did not sit at the hearing of this case.  