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 *479testator, 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

*481cassation 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. (*)