
    Ortiz v. Pabón.
    Appeal from the District Court of Mayagfiez.
    No. 33.
    Decided May 5, 1904.
    Will — Execution of.- — In cases in which the testator is in imminent danger of death, the will may be executed before five competent witnesses without the necessity of the intervention of a notary.
    Id. — A will having been executed before five witnesses owing to the fact that the testator is in imminent danger of death', if the deliberate purpose of the testator to execute his last will and testament appears manifest, and the same took place in a single act and without interruption, the witnesses having heard the contents of the will from the lips of the testator, the same should be held valid.
    Id. — Nullity of Wills — Division of Inheritance — Reservable Property. — In-an action involving the nullity of a will, questions relative to the division of the inheritance and to the reservable character of a part of the property, cannot be litigated.
    ■Costs. — Costs should be imposed upon the party who loses his case on all points.
    
      STATEMENT OE THE CASE.
    ■ This is an action brought in the District Court of Maya-giiez by Higinio and Eosario Ortiz del Toro against Tomasa Pabón, in her own name and as the representative of ber minor children, with reference to the nullity of a testamentary disposition; which action is pending before us on appeal in cas-sation, now ordinary appeal, taken by the plaintiffs from the judgment of aforesaid court, Higinio being represented in this Supreme Court by Attorney José Ramón Preyre, and Eosario, by Attorney Manuel P. Eossy, the respondent having-failed to appear.
    Aforesaid judgment, rendered March 31, 1902, reads as-, follows:
    “Judgment. — In the city of Mayagiiez, March 31, 1902. An oral and public hearing was had of this declaratory action brought ini this court by Higinio and Eosario Ortiz del Toro, represented by Attorney José Ramón Freyre, as plaintiffs, against Tomasa Pabón,. in her own name, and on behalf of her minor children, represented by Attorney Juan Quintero, as defendants, with reference to the nullity of a testamentary disposition executed by Salomón Ortiz.
    ‘ ‘ The plaintiffs, who seek the nullity of said instrument, base their action on the ground that Salomón Ortiz died suddenly on July 1,. 1901, as a result of the attacks of apoplexy from which he had been suffering, and which had begun in the year 1897, upsetting his reason and leaving him in a state of total paralysis, which caused him to neglect all his affairs. That during his illness he was attended by Dr. Pablo Hernández, who issued a certificate regarding his condition, and that, after his death, there appears a testamentary provision executed before five witnesses, namely, Justo Cardosa, José Nieves B'obé, Tomás Carlo and Vicente Arroyo, the document being signed at the request of the testator by José Ramón Quiñones; that said testamentary provision was recorded on September 14, 1900, at the notarial office of Alfredo Arnaldo; that the widow of Tomasa Pabón instituted testamentary proceedings, whereupon the estate was taken charge of, she being appointed depositary. The fact was mentioned that Salomón Ortiz had not instituted testamentary proceedings in the matter of his first wife’s estate, nor delivered to the heirs the hereditary portion derived therefrom; that he subsequently contracted a second marriage with Tomasa Pabón by whom he had several children. As to grounds of law, they allege that a testament made in the presence of five witnesses, to be valid, requires that the testator should be in imminent danger of death; that the testator Ortiz could not execute a testament because his mental faculties were disturbed and he was not in his right mind; that by the testament the plaintiffs have been defrauded of their, property, and a testament made fraudulently is null and void; and that the testator could not dispose of the property inherited by him from the children had by his first marriage, he being obliged to set aside the same for the benefit of the others.
    “Notice of the complaint was served upon the defendant, who answered praying that the same be dismissed, with costs against the plaintiffs, because it was not true that the inheritance Salomón Ortiz had received from his children belonged exclusively to the plaintiffs, inasmuch as upon the testamentary proceedings of Salomon’s first wife, all the heirs were assigned their portion, there remaining a balance of only fifteen pesos in favor of Higinio; that although it is true that Salomón Ortiz had been suffering from illness, nothwith-standing this he enjoyed his full mental powers, and managed his own affairs, the testamentary disposition having been executed with due legal formalities; and if 'the defendant is in possession of the property it is because she had been appointed administratrix at the meeting held, and for which the attorney of the plaintiffs had been cited.
    “The parties being summoned to appear for the proffer of evidence, they submitted such as was deemed convenient, which was admitted. Certificates from several notaries were presented, to the effect that the record of the testamentary proceedings of Eduvigis del Toro’s estate was not found on file, nor had any assignment of rights and actions been executed by her heirs; a certificate, on folio 49, setting forth that Salomón Ortiz had always appeared as a taxpayer upon a rural estate in barrio ‘Pedernales,’ of Cabo Rojo; a certificate, on folio 51, referring to the appointment of Tomasa Pabón, as adminis-tratrix of the estate, at the meeting to which the attorney for the plaintiffs had been invited; a certificate, on folio' 52, comprising the testamentary disposition of Salomón Ortiz, and proceedings in con-neetion with the approval and record thereof, and attesting that at the oral hearing, the witnesses called by the parties had testified upon the matters proposed by them, the judgment haying been voted in public on the day and at the hour .set therefor.
    “In the conduct of these proceedings all the legal formalities have been observed.
    “Presiding Judge Arturo Aponte Rodriguez prepared the opinion of the court.
    “When the testator is in imminent danger of death, the will may be executed before five competent witnesses without the necessity of a notary, according to article 700 of the Civil Code, and from the record it appears that Salomón Ortiz, by reason of the illness he was suffering from, was in- danger of death, the contrary not having been proven.
    “The condition of the testator, alleged by the plaintiff as a result of the illness from which he was suffering, and which had disturbed his intellectual faculties, is by no means established, the only argument advanced being that the physician who had attended him had certified as to the aforesaid condition, and the same physician, during the oral hearing, confines himself to stating that only on one occasion he had attended Ortiz, who had an apoplectic attack in the year 1894, when he had made out the necessary prescriptions, without his being in a position to assert positively that said Ortiz’s intellectual faculties had been affected thereby; but that others who had been similarly afflicted, and lived afterwards many years, might continue with, a sound mind, as has been shown by experience.
    “In the execution of the will the witnesses required by law, and possessing the qualifications thereby established, were present, for which reason the court had declared the result of their testimony to be a will; and although during the trial the same witnesses had fallen into slight contradictions, these were not material as regards the deliberate purpose of the testator to execute his last will, the execution thereof in a single act without interruption, and the hearing of all its dispositions from the lips of the testator, this being the only ease in which the invalidity of the will could be considered; and as to the residence of the witnesses it appears from the proceedings had for their approval that they were residents of Cabo Rojo, the party plaintiff failing to establish the contrary.
    “As to the other allegations of the party plaintiff, regarding the partition of the inheritance of Salomon’s first wife and the delivery of the portion belonging to his children, and the reservable character of some of the property appertaining to said inheritance, these do not in any manner affect the validity of the will, and can only be the subject of separate claims to be prosecuted at the proper hearing.
    "Costs shall always be paid by the litigant who loses his ease on all points.
    "In view of article 700 and others of the Civil Code and General Order 118, series of 1899, applicable to the case, we adjudge, that we should declare and do declare that the present complaint does not lie, and release therefrom the party defendant, with costs against the plaintiffs. Thus, by this our judgment, finally rendered, do we pronounce, order and sign. — Arturo Aponte, Luis Méndez Yaz, R. Roura. ’ ’
    From this judgment the representative of Higinio and Rosario Ortiz took an appeal in cassation, which was allowed. The record having been forwarded to the Supreme Court, the parties were duly cited to appear, and the case was dealt with as an ordinary appeal, pursuant to the provisions of the act of the Legislative Assembly, approved April 12 of last year, the appellant Higinio being present, the other appellant, as also the respondent, failing to appear before this court.
    
      Messrs. Freyre and Bossy (Manuel F.), for appellants.
    The respondent did not appear.
   Mr. Justice Stjlzbacher,

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

The findings of fact and conclusions of law of the judgment appealed from are accepted.

We adjudge that we should affirm and do affirm the judgment rendered by the District Court of Mayagüez, March 31, 1902, with costs of the appeal against the appellants. The record is ordered to he returned to the aforesaid court with the proper certificate.

Chief Justice Quiñones and Justices Hernández, Figueras and MacLeary concurred.  