
    Rodriguez v. San Miguel Et Al.
    Appeal from the District Court of Arecibo.
    No. 23.
    Decided October 21, 1903.
    Winns. — Constitution of Hunts. — -A -will whereby a natural child is instituted as sole and universal heir cannot be contested on the ground of irregularity, because another natural child was not included therein, the instituting of a natural child as heir, being a purely voluntary act on the part of the testator.
    Demands of Nuldity. — Demands of nullity can be made only by those directly interested in the act or contract sought to be annulled.
    
      Actions. — Actions not exercised before the old Civil Code went into effect, shall continue to the extent and in the terms they were recognized by the legislation prior to said Code, but shall be subject, as to their exercise and duration, to the provisions of aforesaid Civil Code,
    Inheritance. — Eights to the inheritance of a person who died, whether testate or intestate, before the old Civil Code went into effect, shall be governed by the legislation prior to said Code.
    Natural Children. — Heirs by Force oe Law. — Under the legislation existing prior to the old Civil Code, acknowledged natural children had in no case, with respect to their natural father, the consideration of heirs by force of law, being entitled, in case of their father’s dying intestate and without leaving legitimate children or descendants, only to one-sixth part of the inheritance which they were to,divide with their mother.
    Id. — Although the law of May 16, 1835, admitted acknowledged natural children to the father’s inheritance, this was only in the absence of legitimate descendants or ascendants, and of collaterals within the fourth civil degree inclusive, and always in case of the father’s intestate succession, for if he died testate, all the right of the natural child was limited to a demand of support from the instituted heir.
    Wills.- — -The words of the testator should be understood in their literal meaning, unless it is shown that his intention was different.
    STATEMENT OE THE CASE.
    In the declaratory action of greater import, prosecuted in the District Court of Arecibo by Florentina Rodriguez y Rivera, joined by her husband, Antonio Maria Santiago, a resident of Ciales, in her own right as intestate heir of her acknowledged natural son, Cándido San Miguel y Rodriguez, as plaintiff, represented by her attorney Elpidio de los Santos Laguardia, against Angel Pedro San Miguel y Rodriguez and José San Miguel Prieto, defendants, property owners, residents of Ciales, of legal age, represented by their counsel Wenceslao Bosch, in regard to the nullity of the partition of an estate, complaint of inofficious testament, and petition for declaration of inheritance and an accounting, pending before us on appeal in cassation for error of law, now appeal, taken by the plaintiff Florentina Rodriguez, from the judgment rendered by said District Court of Arecibo, which literally copied, reads as follows:
    “Judgment No. 6. — In Arecibo this 13th day of February 1903. Upon oral and public hearing in this district court, of the action for the annulment of the partition of an estate, complaint of inofficious testament, petition for declaration of inheritance and an accounting, instituted by Florentina Rodriguez Rivera, of legal age, and married, joined by lier husband Antonio Maria Santiago, of Ciales, in her own right as intestate heir of heT acknowledged natural son, Cándido San Miguel y Rodriguez, represented by Elpidio de los Santos Laguardia, against José San Miguel y Prieto and Angel Pedro San Miguel y Rodriguez, property-owners, residing in Ciales, of legal age, and represented by Wencestao Bosch.
    I. — On June 30 last, attorney Elpidio de los Santos Laguardia brought in this court, on behalf of Florentina Rodriguez Rivera de Santiago, an action of inofficious testament, petition of inheritance, expiatoria, or ad-sup-plementum and an accounting against José San Miguel y Prieto and Angel Pedro San Miguel y Rodriguez, setting forth that Florentina or Flora Rodriguez y Rivera, had lived for some years with Manuel San Miguel y Prieto as his wife and had borne two sons to him, one called Angel Pedro San Miguel y Rodriguez and the other Cándido San Miguel y Rodriguez who died on April 26, 1892, before he had reached the age of puberty, being ten years, seven months and twenty-two days old, according to his certificate of baptism which, together with that of his death, appears on folios 11 and 12 of the record in the proceedings for the declaration of his natural mother, Laguardia’s client, as his intestate heir; that Manuel San Miguel y Prieto had died in Ciales on April 26, 1884; that Cándido San Miguel y Rodriguez, though not yet born, was about to be born, when on June 8, 1881, Manuel San Miguel y Prieto executed a special power of attorney in favor of his brother José authorizing him to make his will after his death, which is the reason why in said power of attorney he had acknowledged Angel Pedro as the only child born to him and constituted him his heir, and this is also the reason why in the same power of attorney his acknowledgment of Cándido is implied when providing therein, among other requests, that guardians and curators be appointed for his children, as also testamentary executors and auditors, to make the partition, which clearly indicates that the child about to be born and who was afterwards known as Cándido San Miguel y Rodriguez was considered by him as the result of his union with Flora, being the natural offspring of both, said child having been declared as such in the parochial entry of baptism and subsequently, after the proper legal proceedings, in a decision rendered by this court and duly entered in the Civil Registry of Ciales, thereby recognizing the aforesaid minor, Cándido San Miguel y Rodriguez, deceased April 26, 1892, that is to say, ten years, seven months and twenty-two days after his birth, as the natural child of Manuel San Miguel y Prieto and Flora Rodriguez; that while José San Miguel y Prieto had been managing the real and personal property and property rights and actions, left at the death of Manuel San Miguel y Prieto, from the record of the testamentary proceedings is ‘does not appear that he had executed the bond as ordered by the court in conformity with the request of the Attorney General, nor had he up to the present time rendered an account of his management, although he had been administering the property of the deceased, which amounted to considerably more than the eight thousand dollars that appear to have been delivered to the minor Angel Pedro upon his attaining his majority, notwithstanding José San Miguel y Prieto had declared that the property belonging to his nephew Angel Pedro San Miguel, prior to August 8, 1899, was worth twenty-three thousand four hundred and forty Mexican pesos, but his client being unacquainted with the details and everything regarding the power to execute the will, the will by commission and the appointment of a guardian and curator she was unable to furnish her counsel with all the facts in the case, for which reason, availing himself of the right granted by section 496 of the Law of Civil Procedure, he requested that said José San Miguel y Prieto and Pedro Angel, make affidavit regarding the exhibition of the will, codicil or testamentary memorandum, and that José San Miguel y Prieto make affidavit as to whether he had remained as depositary and administrator of the property left by Manuel San Miguel y Prieto on the death of the latter; whether he was his testamentary executor and, if not, in what capacity and by virtue of what titles he had in his possession property of every description that had belonged to Manuel San Miguel y Prieto; that a like affidavit be made by Pedro, regarding the property that had belonged to Manuel San Miguel y Prieto and in part been transferred to said Angel Pedro by José San Miguel y Prieto, said affidavit to be made under admonition with indecisive oath (con indecisorio juramento') of being held to have confessed as to the aforesaid , particulars, all this being preparatory to the judicial proceedings his client intended to institute in defense of her rights as intestate heir of her natural son Cándido San Miguel y Rodriguez to whom in turn had belonged the intestate inheritance of said Manuel San Miguel y Prieto, as the latter’s natural son. Said petition was presented on the 3rd of July, 1901, together with a certificate of the order containing the designation of intestate heir made in favor of his client as natural mother of her deceased son Cándido San Miguel y Rodriguez; and by a writing of July 22, the date of its presentation, subscribed by attorney Bosch, the notarial office in Manatí and that of La Torre in Arecibo are designated as the places where the will, and record of the inventory, division and partition of the property are on file? there remaining to be presented the affidavit referring to the other particulars mentioned in the petition for the production of documents, as also tlie affidavit of José San Miguel y Prieto; and the allegation is made that Cándido San Miguel y Rodriguez having been excluded, without just cause, from the inheritance of Ins natural father, his client is prejudiced in her rights, as heir by force of law upon his death to his intestate succession, and she demands the partition and division of the portion belonging to her deceased son Cándido, after a rendition of accounts in a legal manner and within a period of twenty days, before the court and in aforesaid intestate proceedings, to which she enters an appearance, said rendition to be made by the agent appointed to execute the will, as guardian, curator and depositary-administrator of the property left at the death of Manuel San Miguel y Prieto, accounting likewise for the products accrued or that should have accrued during the years he has managed said property without furnishing a bond or producing an account.
    II. — As legal authority counsel for plaintiff cited sections 657, 658, 659 668, 675, 944, 1073, 1074 and 1068 of the Civil Code referring to suces-sions and partitions causa mortis, and the provisions of the Law of Civil Procedure concerning the rendition of accounts in testamentary proceedings, and closed with the prayer that the complaint be sustained with costs against defendants.
    ' III.- — As preliminary to the complaint the plaintiff requested and obtained from the district court an order to the effect that the defendants be required to exhibit the will, codicil, or testamentary memorandum of Manuel San Miguel y Prieto, in the office of the clerk of the court, which was done. Notice of the complaint having been served upon the defendants it was answered by José San Miguel y Prieto and Pedro Angel San Miguel, through their counsel Wenceslao Bosch Esq., alleging that under date of June 25, 1884, José San Miguel y Prieto had executed before notary Francisco Tomás, of Morovis, the will that had been commended to him by his brother Manuel San Miguel y Prieto, in the power of attorney executed in his favor under date of June 8, 1881, before the same notary; that in compliance with the grantor’s will, he had instituted as sole and universal heir his acknowledged natural son, Angel Pedro San Miguel y Rodriguez; that under date of August 22 of the year 1884, the testamentary executors of Manuel San Miguel y Prieto, namely, José San Miguel y Prieto and Fernando Caso, the former being also curator bonis of the minor and sole heir Angel Pedro San Miguel, together with Rodrigo del Rio, as attorney-in-fact of the late Manuel San Miguel proceeded to make an inventory of the property left upon the latter’s death, after duly appraising and apportioning the estate, which was adjudicated to the heir Angel Pedro San Miguel y Rodriguez; that the latter enjoyed the. property adjudicated under the guardianship of the testamentary guardian José San Miguel y Prieto and the inspection of a family council constituted in accordance with all the requirements of the law, which council had approved the management of the guardian, said approval being afterwards ratified by Pedro Angel San Miguel y Rodriguez when he became of age, as appears in the instrument executed October 31, 1900, by both the aforesaid José San Miguel y Prieto and Angel Pedro San Miguel y Rodriguez, before notary Manuel Valdes Cajas, of Manatí; that on February 5, 1895, Florentina Bodriguez, accompanied by her legitimate husband, Antonio Maria Santiago, had appeared before the Municipal Judge of Cíales, and declared “that by virtue of the death of her son, Cándido San Miguel, who was also an acknowledged son of Manuel San Miguel, deceased, she was in the belief that he had a right to the property left at his father’s death or to a part thereof, which had been adjudicated to her other son named Angel Pedro San Miguel, wherefore she had intended, through an attorney-in-fact, to secure authorization to sue in forma pauperis in the Court of First Instance of Arecibo, for the recovery, in the aforesaid capacity, namely, that of mother of the deceased Cándido San Miguel, of such interest as she might have in said property; that being desirous of avoiding the troubles, expenses and unpleasantness to which said suit might give rise, realizing that the property has been adjudicated to, and is in possession of, her son Angel Pedro San Miguel, she has decided to withdraw, and does withdraw, the claim she had intended to prosecute, and renounces, now and forever, all the rights and actions which she might have in the property of her deceased son, Cándido, who died in his eleventh year, and cedes and conveys the same to her aforesaid son Angel Pedro San Miguel, to whom "it is adjudicated and whereof he is in possession;” and that between the birth of Cándido San Miguel, September 4, 1881, and the demise of Manuel San Miguel, April 26, 1884, two years and seven months had elapsed, during which interval Manuel San Miguel had more than sufficient time to modify his last will and testament after the birth of said Cándido, and if he failed to do so, it was either because he had no intention to leave him anything, or entertained doubts as to whether Cándido was his son or not.
    IV. — As legal grounds, counsel for defendants invoked the legal provisions in force prior to the Civil Code of 1889 and the temporary provisions thereof with respect to the change from the old to the new legislation, and finally prayed that the complaint be dismissed with costs against the plaintiff.
    V. — Together with their answer to the complaint defendants filed the power of attorney executed by Manuel San Miguel y Prieto authorizing his brother José, one of the defendants herein, to make a will in the name of the former, and also the will by virtue whereof Angel Pedro San Miguel y Bodriguez was made sole and universal heir of his natural father Manuel San Miguel: the record, of proceedings in the partition of the testator’s estate, on file in the notarial office of the late José A. de la Torre, of Arecibo; the instrument executed by the minor Pedro Angel San Miguel’s family council, approving the management of the guardian José San Miguel, and ratified by said minor when he reached his majority; an act of the Municipal Court of Cíales, signed by the plaintiff Florentina Bodriguez, joined by her present hushand, José María Santiago, whereby she forever desists from prosecuting any claims against the inheritance of the defendant Angel Pedro: a private letter from the agent Enrique Pouza, dated seven months after the judicial act executed before the Municipal Court of Cíales, wherein he offers his services in the event of new claims being prosecuted before the courts.
    VI. — The stage in the proceedings for the introduction of evidence having been reached, plaintiff proposed, but afterward waived, that of confession in court by the defendants, and the testimony of witnesses, which she also waived: and as documentary evidence, the power of attorney given by Manuel San Miguel to his brother José, for the purpose of making his will; Manuel San Miguel’s will; document showing rendition of accounts by José San Miguel y Prieto, the act of the Municipal Court of Cíales, referring to the renunciation and withdrawal of all claims by Florentina Rodriguez; a private letter from Pouza; the executory judgment of the court declaring Cándido to be the natural son of Manuel San Miguel y Prieto; a deed of assignment of rights and actions executed by Florentina Rodriguez in favor of Ramón Quintero; a certificate of taxes on cattle paid by Manuel San Miguel, deceased; a judicial declaration of intestate heirs of Cándido San Miguel, made in favor of his natural mother, Florentina; certificates of baptism and death of Cándido; a certificate of death of Manuel San Miguel; opinion of the Fiseal when José San Miguel y Prieto was appointed guardian, as to the necessity of his giving bond before entering upon his duties and of Cándido’s proving that he had not reached the age of puberty.
    VII. — The defendants offered as documentary evidence, a certificate of the clerk of this court, referring to the petition to sue in forma pauperis presented by Florentina Rodriguez in 1894 for the purpose of litigating with the defendants herein, and supplemental evidence of comparison of handwriting in case the authenticity of the documents presented with the answer to the complaint, should be denied.
    VIII. — All the evidence proposed having been taken and the hearing proceeded with, counsel for both parties being present, the court unanimously rendered this judgment.
    IX. — All the legal 'provisions have been observed in the conduct of this suit. Presiding Judge Felipe Cuchí y Arnau, prepared the opinion.
    “I. — Inasmuch as the testament, made by request of Manuel San Miguel y Prieto in the town of Manatí, was executed June 28, 1884, and the birth of Cándido San Miguel Rodriguez, acknowledged natural son of the testator, occurred on the 4th of September, 1881, the law applicable to the eontentions of the parties to this suit is the law that was in force prior to the Civil Code of 1889, namely, that contained in Law I, Title V, Book IV of the Fuero Juzgo-, Laws I and II, Title VI, Book III of the Fuero Beal; Laws VI and XXIX of Toro, and Laws I and VIII, Title II, Book I of the Novísima Beeopilación.
    
    
      II. — In none of tlie aforesaid laws is it in any wise provided that natural children, namely, children had by carnal copulation between an unmarried man and an unmarried woman, had a right to inherit from their natural parents except by virtue of testamentary disposition, and neither Law IX, Title XIII of Partida VI, alleged by plaintiff0 at the oral hearing, nor any other prior to the Civil Code of 1889, provides anything to the contrary.
    III. — The will of Manuel San Miguel y Prieto, executed by his attorney-in-fact in Manatí on June 28, 1884, voluntarily constituting as sole and universal heir of his property, his natural son, Angel Pedro San Miguel y Rodriguez, is perfectly valid and cannot be attacked as irregular on the plea that the other natural son of the testator was not included therein, because the constituting of a natural child as heir is purely a voluntary act on the part of the testator, and Manuel San Miguel y Prieto could constitute as heir whomsoever he pleased, since he was not formally married to Florentina Rodriguez, nor had he any legitimate children, either with her or with any other woman, who could allege the right of heirs by force of law.
    IV. — Action for irregularities in the execution of wills and the recovery of inheritance, as exercised by plaintiff in this suit, cannot be sustained, being based on an erroneous supposition, namely, the assumed right of the natural son Cándido San Miguel y Rodriguez, to be heir of his deceased father Manuel San Miguel y Rodriguez.
    V. — Florentina Rodriguez Rivera, the plaintiff, must have realized this fact when, in February 5, 1895, she declared before the Municipal Judge of Cíales, on the occasion of her discontinuing the suit she had then commenced for the same purpose, that although she had been under the impression that she had some right to the inheritance awarded to her other son, Angel Pedro San Miguel, she forever desisted from prosecuting such a claim.
    YI. — With regard to the second prayer contained in the complaint, namely, that thejnstrument designating the guardian of the minor, Angel Pedro San Miguel, executed before the Judge of First Instance of Arecibo, on July 29, 1884, be declared null and void, because it was made contrary to the order of the said Judge with the approval of the Fiscal, who required the guardian to furnish the proper bond before entering upon his duties, notwithstanding which said guardian had failed to do so, the declaration of nullity, after the lapse of twenty seven years, does -not lie, because it is not everybody who can make such a demand, but only those directly interested in the act or contract sought to be annulled, and the plaintiff, Florentina Rodriguez, cannot make •such a request because her son, the one who was under guardianship, Angel Pedro San Miguel, having attained his majority, has expressed his approval of the act of his uncle and guardian.
    VII. — For the same reasons,’ the nullity of the partition made after the ■death of Manuel San Miguel y Prieto, as demanded by the plaintiff, should be disregarded, because said partition affects only the lieir Angel Pedro San Miguel y Rodriguez, wlio does not call for nullities of any sort, now, nor has lie ever demanded any, during the twenty and odd years that have elapsed since the division was made.
    VIII. — Even in the supposition that the plaintiff, Florentina Rodriguez,, did have any right to demand the rescission of the partition of Manuel San Miguel’s estate, made in 1884, such right has already prescribed, because under the fourth transitory provision of the Civil Code, actions and rights’not exercised before said Code went into operation, shall continue in the-terms in, and the extent to, which proceding legislation may have recognized them, but are subject with reference to their exercise and duration to the’ provisions -of said Civil Code, and the action to rescind a division prescribes-after four years, according to article 1076 of the Civil Code.
    IX. — Furthermore, article 1939 of said Civil Code states that the prescription, which began to run before the publication thereof, shall be governed by the prior laws; but if after said Code has become operative, all the time required in the same for prescription has elapsed, it shall be effectual, even if according to said prior laws a longer period of time may be required; and inasmuch as said Civil Code was made applicable to Porto Rico in July 31, 1889, and took effect in the Island on and after January 1, 1890, it is evident that the four years necessary for the prescription of the rescissory action hereinbefore mentioned, has more than fully elapsed.
    X. — Neither can the plaintiff, Florentina Rodríguez de Santiago, call upon the guardian José San Miguel y Prieto for an accounting of his guardianship, because he had in due time produced his accounts to the family council, and plaintiff, although the natural mother of the minor, never exercised parental authority over him, inasmuch as article 64 of the Civil Marriage Law, granting the right of parental authority over children not emancipated, made applicable to Porto Rico, March 2, 1888, required that the children should be legitimate, and not natural as is the case with Floren-tina Rodríguez and her son Angel Pedro San Miguel.
    XI. — The guardian José San Miguel y Prieto was in no sense bound to allow the plaintiff intervention in the estate of Manuel San Miguel y Prieto, upon making delivery thereof to the only heir, Angel Pedro San Miguel y Rodriguez, becaus'e said delivery having taken place in the year 1884, the condition of natural mother of the minor, then borne by the plaintiff, did not invest her with any right with respect to the inheritance which her son received from his natural father, since the only law then in force as to the authority of mothers over their children, was Law II, Title XVII, Partida IV, which absolutely denies to mothers any authority over their children and their property.
    XII. — According to Rule 63 of General Order No. 118, series of 1899 costs of suits shall be paid by the litigant who loses his case on all points. In view of the laws hereinbefore cited, article 371 of the Law of Civil Procedure referring to the manner of drafting judgments, and General Order No. 118, series of 1899, we adjudge that we should declare and do declare that the complaint brought by Florentina Rodríguez de Santiago, intestate heir of her natural son Cándido San Miguel y Rodriguez, does not lie, and tax costs against plaintiff.
    Thus by this our judgment, we pronunce, order and sign — Felipe Cuchí —Otto Schoenrich — Enrique González Darder — Publication—The foregoing judgment was read and published by the Presiding Judge of the court, Felipe Cuchí y Arnau, at the hearing held February 13, 1903 — To which I certify: José E. Figueras. °
    From the foregoing judgment the plaintiff, Florentina Rodriguez y Rivera, through her counsel, took an appeal in cassation for error of law, which was allowed. The record having been forwarded to this Supreme Court, and the parties cited, the latter appeared, and the record was delivered to their respective counsel for their information, pursuant to the provisions of an Act of the Legislative Assembly of this Island, approved March 12, 1903, establishing this Supreme Court as a court of appeals. Upon the return of the record it was brought to the attention of the court and the parties summoned for judgment, which was rendered on the 6th instant.
    
      Mr. Ramón JEalcón y Elias and Mr. Wenceslao Bosch respectively, representing the appellant and respondent.
    
      Mr. Juan R. Ramos and Mr. JEalcón for appellant.
    
      Mr. Bosch, for respondents.
   Me. Chief Justice Quiñones,

after making the above statement of facts, delivered the opinion of the court, as ■follows:

The findings of fact contained in the judgment appealed from, and the conclusions of law, excepting the two first mentioned, are accepted.

According to the twelfth transitory provision of the old Civil Code, rights to the inheritance of a person who may have died with or without executing a will, before said code went into force, shall be governed by the prior legislation; and, thérefore, as Manuel San Miguel y Prieto, whose succession is the object of this contention, died on April 25, 1884, after having made a will, six years before the old Civil Code became effective in this Island, the laws in force prior thereto are those to which we must turn in the consideration of such rights as his acknowledged natural son, Cándido San Miguel y Rodriguez, who died at the age of ten years, on April 26,1892, might have to the inheritance of his deceased father, Manuel San Miguel, the same being now claimed by his natural mother, Florentina Rodriguez y Rivera, the plaintiff, as heir and representative of all his actions and rights. !

Under the laws existing prior to the old Civil Code, acknowledged natural children were in no case considered heirs of their natural father, by force of law, inasmuch as Law 8, Title 13, of Partida 6, invoked by counsel for appellant in his notice of appeal, allowed them in case of their father’s dying intestate and without leaving legitimate children or descendants, only one-sixth part of the inheritance which they were to divide with their mother, despite the opposition that might be made by the deceased’s widow, as explained in the succeeding Partida law; and that of May 16, 1835, notwithstanding the fact that it 'admitted acknowledged natural children to the father’s inheritance, this was only in the absence of legitimate descendants and of colla-terals within the fourth civil degree inclusive, and always in case of the father’s intestate succession, for if he should make a will before his death, all the rights of- the natural child were limited to a demand of support from the heir constituted in accordance with aforesaid Law 8, Title 13 of Partida 6.

Nor do the alleged rights of the minor Cándido San Miguel y Rodriguez, to the inheritance of his deceased natural father, Manuel San Miguel y Prieto, find greater confirmation in the power of attorney to make a last will, executed by the latter on June 8, 1881, in favor of his brother José of the same surname, for even in the supposition that the clause of said power of attorney, by which he authorized his brother and attorney-in-fact to appoint guardians and curators for his children, without mentioning them, implied the tacit acknowledgement of the child as his, to whom Florentina Rodriguez y Rivera gave birth three months later, and who was named Cándido and entered on his certificate of baptism as an acknowledged natural child of Manuel San Miguel and Florentina Rodriguez, this circumstance, by itself alone, did not give him any right to the inheritance of his said natural father, Manuel San Miguel, for inasmuch as the latter had no heirs by force of law, he could devise all his property to whomsoever he pleased, and consequently constitute as sole and universal heir his other natural child, Angel Pedro San Miguel, in preference to the posthumous one, who was yet unborn, especially when it has not been shown that it was the intention of the testator to constitute him also an heir under the power of attorney to make a will, in favor of his brother Angel, for pursuant to Law 5, Title 33 of Partida 7, the words of the testator should be understood in their literal meaning, unless it appears that his intention was different; and in the present case it has not been proved that the intention of the testator was also to include the posthumous child among his appointed heirs, but on the contrary, what appears is that the death of Manuel San Miguel having occurred two years after the birth of his son Cándido, he had more than sufficient time to make an addition to the power of attorney conferred upon his brother, constituting him also as an heir, and as he did not do so, it is evident that it was not his intention to name him as heir along with his brother Angel Pedro, and that the letter of the aforesaid power of attorney should be abided by in order to make a will in conformity with the clear intention of the testator.

In view of the legal provisions cited and others of general application, we adjudge that we should affirm'and do affirm the judgment appealed, with costs against appellant, Flo-rentina Rodriguez y Rivera.

Justices Hernández, Sulzbacher and MacLeary concurred.

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