
    Mollfulleda v. Ramos.
    Appeal in cassation from the District Court of San Juan.
    No. 54.
    Decided April 13, 1903.
    Public Ixstbuments. — Public instruments are evidence whenever their authenticity has not been expressly questioned at the trial by the aggrieved party.
    Exectjtobs op Wills. — Executors of wills have all the powers expressly conferred upon them by the testator and which are not contrary to law.
    
      TestamentaRY Proyxsions. — Every testamentary provision shall be understood in the literal meaning of its words, unless it clearly appears ■that the will of the testator was different.
    Oblicjation or an Executor. — Although an executorship is a voluntary office, the executor who accepts it is bound to act and cannot resign it without sufficient cause, subject to the sound discretion of the court.
    STATEMENT OE THE CASE.
    On August 26, 1890, Ramón Mollfulleda, on behalf of his acknowledged natural daughters Margarita, Teresa, Ramona, Paula, Gregoria and Carmen, brought an action of “lesser import” in the former Court of First Insurance of San Juan, against Francisco Ramos, praying that the proceedings instituted by the latter to acquire possession of a farm, situated in barrio “Hato Rey”, municipality of Rio Piedras, and the record thereof in the Registry of Propel ty, be declared mill and void. Notice of said complaint having been served upon defendant Ramos, he objected to the same being prosecuted under the procedure for actions of lesser import, whereupon the Court of First Insurance declared, by an order dated May 19, 1891, that it should be tried as an ordinary action of greater import .without special imposition of costs.
    On March 31, 1896, Ramón Mollfulleda died in the town of Rio Piedras, leaving a nuncupative will executed in said town two days before his death, before Notary Mauricio Guerra Mondragón y Mejias of this City. In the sixth clause of said will he declared that all his property consisted of a farm situated in barrio “Hato-Rey”, composed of two hundred cuerdas of land, which he had acquired from the estate of Delgado, by deed executed January 8, 1890, before the aforesaid Notary Mauricio Guerra Mondragón; that the usufruct of one part of said farm was being enjoyed by Lorenzo Noa, and another part by Francisco Ramos, he having instituted criminal. proceedings against the latter for fraud and forgery. By the eighth clause of aforesaid will he appointed his brother Juan Mollfulleda, guardian of his above mentioned natural minor children, Margarita, Paula, Gregoria, Teresa, Ramona and Alejandrina, without bond; by-the ninth clause he appointed his said brother his sole executor with full power to carry out the provisions of his will, and instructed him to prosecute to their termination the law suits he had instituted against Noa and Ramos, and to effect the settlement of his estate extra-judicially; by the tenth clause he appointed as his sole and universal heirs his father, Mateo Mollfulleda, and his above mentioned natural children to inherit the balance remaining of all his property rights and actions, one half to the former, and the other half to be divided in equal shares among his said children, Carmen, Margarita, Paula, Gregoria, Teresa, Ramona and Alejandrina Mollfulleda y Osorio.
    On the 5th of December of the following year, Evaristo V elez on behalf of J uan Mollfulleda, as executor and guardian of the minor children of his deceased brother Ramón, filed the complaint against Ramos,' which was the beginning of this suit, said complaint being accompanied by a certified copy of the latter’s will, issued by aforesaid Notary Mauricio Guerra Mondragón, which complaint was a reproduction of the one filed in August 1890, with such amplifications and modifications as were deemed pertinent; he prayed that the same be prosecuted as an action of greater import, and that judgment be rendered declaring null and void the proceedings to acquire possession hereinbefore referred to, as also the record thereof in the Registry of Property, and that defendant be condemned to pay for the net products gathered or that should have been gathered from the property, at the rate of one hundred and twenty-five pesos per month, from the date the proceedings to acquire possession were instituted by him, besides the damages caused, or in default-thereof, the legal interest from the time of the filing of the complaint, with costs.
    Notice of the complaint having been served upon Francisco Ramos he interposed a plea to the jurisdiction on the ground that the judge assigned to hear the case had not been properly appointed; the want of capacity of the plaintiff and his solicitor to sue, because the former had not shown his authority as guardian to the minor and executor for his brother Ramón, nor as attorney-in-fact for his father, Mateo Mollfulleda, and because the solicitor Velez had failed tó produce the power-of-attorney authorizing him to represent the plaintiff; and alleged, furthermore, want of security for the satisfaction of any judgment which might be rendered in the suit, defendant being a Spanish subject. Notice of this pleading having been served upon Juan Mollfulleda, he answered the same contesting the dilatory exceptions therein contained, excepting as to the solicitor’s lack of capacity, he, through an oversight, having failed to file his power-of- * attorney with the complaint.
    In the course of the proceedings Mollfulleda tendered his resignation as executor and guardian to the minors, which resignation by an order of the court' dated' September 27, 1899, was refused, and said Mollfulleda having insisted upon the acceptance of his resignation without success the District Court of San Juan, on the 28th of April of last year, rendered judgment sustaining the exception as to Mollfulleda’s lack of capacity, and failed to pass upon the other exceptions as to the jurisdiction of the court and the want of security to abide the result of the proceedings, the latter requisite not being necessary with respect to Spanish subjects under the Treaty of Paris; the practice of solicitors representing litigants in court having been abolished, and no special imposition of costs was made.
    From this decision Mollfulleda took an appeal in cas-sation for violation of law based on paragraphs 1 and 7 of article 1690 of the Law of Civil Procedure, which was allowed, and the record having been sent up to this court and the parties having been summoned, and having entered their appearance, the record was delivered to counsel for appellant in order that he might perfect his appeal, which he did, and cited as having been violated:
    1°. — Article 899 of the Civil Code, which provides that an executor who accepts the office is bound, to act. Mollfulleda accepted the office inasmuch as he appeared in that capacity to continue the prosecution of the suit instituted by the testator during his life, he is therefore bound to perform the duties thereof, and the judgment which does not recognize said obligation, violates the above mentioned article. Confirming this article, the Supreme Court of Madrid, in its decision of July 4, 1895, holds that “the office once accepted, executors are bound to act in accordance with the law and the wishes of the testator, independently of the heirs and without prejudice to the rights of the latter to make claim by reason of any harm that might be done them.” The testator gave full powers to his only executor and charged him, furthermore, to prosecute the suits he had instituted against Ramos. Therefore, Mollfulleda confined himself to the fulfillment of the testamentary instructions, which are in accordance with law, the commission to prosecute a suit being legal. Moreover, should he fail to prosecute the suit, even had he not been charged to do so by the testator, he would incur a serious responsibility, because the property involved in this controversy, is the only property left to his heirs by the testator according to the sixth clause of the will.
    II. — From the reasons above set forth it will be seen that article 901 of the old Civil Code has also been violated, because executors of wills have all the powers conferred upon them by the testator, which are not contrary to law. It has already been seen that Ramón Mollfulleda instructed his executor to prosecute the suit, and said commission is not contrary to law.
    III. — Article 675 of the same code prescribes that every testamentary provision shall be. understood in the literal meaning of its words, unless it clearly appears that the will of the testator was different. The opinions rendered May 22, 1876, September 29, 1886, May 5, 1897 and November 23, 1899, announce the above doctrine in support of the will of the testator. The judgment appealed from violates aforesaid articles and opinions, because in denying Mollfulleda’s capacity to prosecute this suit as his brother’s executor, it opposes the express wishes of the testator according to clause nine of the will.
    IV and last. — With respect to paragraph seven an error of law and an error of fact have been committed in the consideration of the documentary evidence. The error of law consists in the fact that although Mollfulleda produced the will for the purpose of establishing his capacity as executor and the testator’s instruction to prosecute the suit, the j udgment fails to recognize in said will the value as evidence accorded to public documents by articles 1218 of the old and 1165 of the new Civil Code, and 596 of the Law of Civil Procedure. The error of fact consists in that the judgment denies to Mollfu-lleda his capacity as testamentary executor, in which he appeared in this suit and in which the complaint was admitted by an order of December 23, 1898 found on the reverse of' folio 158. This error comes out in bolder relief if we bring to mind the doctrine laid down by the former “Audienciá Territorial”* upon deciding a similar question in the case against Ramos, by an order of May 27, 1896, reverse side of folio 94, to the effect that plaintiff had the capacity as executor, to take any steps in behalf of testator’s children, which he might deem necessary. •
    
      Mr. Manuel F. Rossy, for appellant.
    
      Mr. Hilario Guerillas Hernández, for respondent.
   Mr. Chief Justice Quiñones,

after making the aboye statement of facts, rendered the following opinion of the court:

The trial court having sustained the dilatory exception of want of capacity on the part of the plaintiff Juan Mollfu-lleda to prosecute the suit brought by this complaint in the capacities in which he appeared therein and one of these being that of executor of his deceased brother Ramón, said court has implicitly ignored the probatory value of public instruments whose authenticity has not been attacked at the trial, inasmuch as Mollfulleda, having filed with the complaint a certified copy of the will executed on March 29, 1896, by his brother Ramón before Notary Mauricio Guerra Mondragón of this City, whose authenticity has not been assailed, and by clause nine whereof he was constituted his sole executor with full powers and express instructions to prosecute to their termination, the law suits he had instituted against Lorenzo Noa and Francisco Ramos, in failling to recognize his capacity as executor of his brother’s will, the court has violated articles 1218 of the old Civil Code and 596 of the Law of Civil Procedure in force, which declare the value and efficacy of public instruments whose authenticity has not been expressly questioned at the trial by the prejudiced party, thus committing, with respect to the consideration of said evidence, the error of law comprised under paragraph 7 of article 1690 of the Law of Civil Procedure, alleged as one of the grounds of the appeal.

Under-article 901 of the old Civil Code, executors of wills had all the powers expressly conferred upon them by the testator, which are not contrary to law; and it having been established by the will of Ramón Mollfulleda, presented by the plaintiff, Juan Mollfulleda, that the latter was appointed by his deceased brother sole executor, with the aforesaid powers, which are not contrary to law, it is evident that he had the necessary capacity as executor to prosecute the present litigation that had been commenced by his deceased brother Ramón, against Francisco Ramos, for the purpose of securing the annulment of certain proceedings to acquire-possession, and the admission thereof to record in the Registry of Property, and that consequently the judgment of the District Court of San Juan, which failed to recognize such capacity violates article 901 of the old Civil Code above cited, as also article 675 of the same code, according to which every testamentary provision shall be understood in the literal meaning of its words, unless it clearly appears that the will of the testator was different, and the juridical doctrine in conformity therewith laid down by the Supreme Court of Spain in the judgments referred to in the fifth allegation of the appeal.

Although under article 898 of the same code,, an ex-ecutorship is a voluntary office, according to the following article 899, an executor who acceps the office is bound to act, and cannot resign without sufficient cause subject to the sound discretion of the judge, whence it -is to be inferred that J uan Mollfulleda having accepted the office of executor of his brother’s will, as shown by the fact of his having filed the complaint which was the beginning of this litigation, as executor of his brother’s will, and not having been expressly relieved therefrom by the court the judgment which fails to recognize his capacity as such executor, implicitly violates aforesaid article 899 of the old Civil Code, which is cited as having been violated in the grounds of the appeal.

For the reasons above set forth we must hold that the appeal lies.

We should declare, and do declare, that the appeal in

cassation for violation of law taken by Juan Mollfalleda from the aforesaid judgment of the District Court of San Juan lies, and the same is annulled in so far as it sustains-the exception of want of capacity of the plaintiff Juan Moll-fulleda, as executor of the will of his deceased brother Ma-món Mollfulleda, in which capacity, among others, he filed the complaint giving rise to this litigation, without special imposition of costs. The original record is hereby ordered to be returned, and this decision as well as the one herein-below. entered, to be communicated to the District Court of San Juan for compliance therewith.

Messrs. Associate Justices Hernández, Sulzhacher and Mac Leary, concurring.

Mr. Associate Justice Figueras did not sit at the hearing of this case. 
      
       For the reasons set forth in the foregoing judgment on appeal in cassation, the dilatory-exception of the plaintiff’s lack of capacity was overruled, while the other findings contained in the judgment annulled, were affirmed.
     