
    Alvarez Et Al v. The Registrar of Property.
    Appeal from a decision of the Registrar of Property of San Juan.
    No. 3.
    Decided April 20, 1903.
    Public Documents Subject to Record.- — Defects Capable oe Correction. — A public document subject to record which fails to set forth with clearness and precision every detail which according to law the record must contain under penalty of nullity, constitutes a legal defect which prevents its admission to record in the Registry of Property.
    Wills. — Vasue and Uncertain in the Provisions Thereof. — Where the wording of a testamentary provision constituting heirs is so vague and uncertain as to preclude absolute certainty with, respect to the real wishes of the testator, the ownership to the property cannot he entered in the Registry of Property in favor of any of the parties interested in the inheritance until the intention of the testator has been determined by the court in a proper hearing.
    STATEMENT OE THE CASE.
    The sealed will executed on November 27, 1856, by José Isern was made a public document and filed in the protocols kept at the office of Notary Juan Basilio Núñez, pursuant to a decree issued August 29, 1870, by Pablo Gudal, Judge of First Instance of this Capital. In the twelfth clause of said testamentary disposition the testator provided for the constitution of heirs to his estate literally-in the following terms;
    XII — Moreover, after fulfilling and satisfying tliis my testament, in accordance witli the clauses and provisions contained therein, exercising the powers allowed me by the laws, and having no heirs by force of law, I constitute and appoint my aforesaid lawful wife, Luisa Alvarez de Isern, my sole and universal heir, as usufructuary, to enjoy and possess my estate as such usufructuary during her life, with the blessing of God and mine. She shall have no power, therefore, to dispose of the property in any manner whatsoever, since with the income and products thereof she can befittingly supply her wants while she lives. And upon the death of my aforesaid wife, my niece and god-daugliter Adelaida Isern, acknowled natural child of my brother Juan Isern shall substitute my said wife as heir to the estate she being from this day constituted and appointed heir to my estate, to take effect after the death of my aforesaid wife, to enjoy both the income and products thereof, but likewise without power to dispose of said property in any manner whatsoever, except in the event that she should marry a'man of good conduct and character and have legitimate children by him, in which case alone shall said Adelaida dispose of my property by any title whatsoever, but only after, and not before, the demise of my aforesaid wife, it being the latter’s duty to pay the amounts which come due under the annuities (censo) encumbering the houses, and such taxes as may be assessed upon them during her administration and usufruct, so that when she dies and the heir Adelaida comes into possession of the estate she may not be burdened with the payment of overdue annuities and taxes, and thereafter the said Adelaida shall continue punctually to pay the same. And if the latter should remain single or, being married, should have no legitimate children, upon her death she shall be succeeded by her sister Demetria Isern, upon tlie same conditions. Should tire latter die single or without any legitimate issue, the estate shall pass to her other sister, Juana, in whose default, or after whose death, the heir shall be her brother José and after him the estate shall pass to Manuel Isern, another brother of the aforesaid Juana. In conclusion, it is explained that should the heir Adelaida marry and have children by such marriage, then these shall be considered and recognized as the sole and universal heirs, with ample and unlimited powers to administer my property, and freely to use and dispose thereof at their pleasure, without opposition from any person as such heirs, whom I now constitute and appoint' to take effect in that event.- This, however, to be always understood as occurring after the death of my aforesaid wife, Luisa Alvarez de Isern, who, while living, shall be respected and considered as a true mother, and not offended or disturbed in any respect, and much less shall any judicial claim be instituted against her with reference to my dispositions herein set out, for then the appointment of the heir, who shall have instituted the claim and caused annoyance and trouble to my aforesaid wife shall remain without effect, and thereupon she may justly and with sufficient ■cause dispose of my property in favor of whomsoever she pleases, in substitution of the one causing the difficulty, but without prejudicing in their rights and actions the other persons designated by me who shall have respected my last will, compliance wherewith I especially and most earnestly and affectionately recommend to my aforesaid wife and executors, while also expecting from the affection of my heirs that they shall conduct themselves with honesty and the virtues they have shown, so as to be worthy of, and obtain in recompense, the inheritance I bestow upon them, and enjoy and possess the same with the blessing of God and mine”.
    A certified copy of said will, accompanied by a certificate •of the marriage of Adelaida Isern to Esteban Catá and a -certificate of baptism of their daughter, Maria del Carmen, was presented for the purpose of having one of the houses belonging to the estate recorded in favor of the widow, Luisa Alvarez, as usufructuary heir, and the naked ownership thereof in favor of Adelaida Isern, said record being refused by the Registrar for the reasons set forth in the memorandum placed at the end of the aforesaid certified copy and which reads as follows:
    “The admission to record of the foregoing document as requested with reference to house fío. 68, San Sebastián Street, of this city, in favor of Luisa Alvarez, as to usufruct, and in favor of Adelaida Isern, as to the naked ownership thereof, is refused because there is ambiguity and contradiction witli regard to the constitution of the heirs, for the testator, in the first place, names as such his niece, Adelaida Isern, with power to dispose of his property should she marry and have legitimate issue, and after designating several substitutes in the- event that she should not marry or, if married,, should have no legitimate children, he provides that in case said Adelaida should contract marriage and have children thereby, they shall be considered and recognized as the sole and universal héirs of the testator, they being constituted and appointed as such in his will. This is in accordance with articles 9, 18 and 30 of the Morgage Law, and 77 of the Regulations for the execution thereof; and in compliance with the law providing for appeals from the decisions of Registrars of Property, a cautionary notice has been entered on folio 233, volume 50, of this city, property No. 2162, entry A. to have legal effect during one hundred and twenty days from the date hereof. — José Benedicto, Registrar”.
    From the above decision Wenceslao Bosch, Esq., on behalf of Luisa Alvarez and Adelaida Isern, in due time took this appeal, praying that the refusal of the Registrar be reversed, and the admission to record of the will decreed, as requested by appellants, alleging, among other reasons in support of their claim, that the will of the testator is clear and perfectly defined in the testamentary clause referred to, as to the person who is to be the heir; that according to said clause Adelaida is the heir and has a right freely to dispose of the inheritance, which is the naked ownership whereof the record is requested, in case of her marrying a man of good conduct ■ and having legitimate children by said marriage, and that the latter shall become heirs only upon the death of their mother, in preference to the brothers of said Adelaida, who are to inherit only in case of the latter’s death without leaving legitimate children.
    
      Mr. Bosch, for appellant.
   Mr Chief Justice Quiñones,

after making the above statement of the case, delivered the following opinion of the court:

The want of clearness and precision in the wording oí public documents subject to record, especially when bearing upon one or more of the details which the record must contain under pain of nullity, constitutes a legal defect in the document, which prevents its admission to record in the Registry of Property, according to the provisions of article 77 of the Regulations for the execution of the Mortgage Law in this Island.

In the testamentary provision under consideration, there is at least a want of clearness in the wording of so important a clause as the one appointing heirs, which is drawn in such terms as to preclude absolute certainty with respect to the real wishes of the testator and, for that reason, until this point is made clear by the courts of j ustice in an action between the proper parties, the ownership of the property cannot be entered in the Registry in favor of any of the parties interested in the inheritance.

In view of the legal authority cited by the Registrar in his decision, and the jurisprudence established by the General Directorate of Registries and Notarial Division, the refusal of the Registrar of San Juan to. record the will referred to in the present appeal, is hereby affirmed. Said will is ordered to be returned to the party presenting the same and a certified copy of this decision transmitted to the Registrar for his information and guidance.

Messrs. Associate Justices Hernández, Figueras, Sulzba-cher and MacLeary, concurring.  