Benigno Trigo v. Beverley
Benigno Trigo v. Beverley
Opinion of the Court
delivered the opinion of the Court.
On March 31, 1948 Belén Sarah de Orbeta Viuda de Trigo executed an open will before Lie. Rafael Castro Fer-nández as notary. After the death of the testatrix on March 2, 1949, three of her heirs brought suit in the district court for nullity of the will against the other heirs and against Lie. James R. Beverley, executor of the will and trustee of the portion of the estate left to two of the grandchildren of the testatrix. After a trial on the merits, the lower court entered a judgment in favor of the defendants from which the plaintiffs appealed.
Section 630 of the Civil Code, 1930 ed., provides that “The following cannot be witnesses to wills: ... 7. The clerks, amanuenses, servants, or relatives within the fourth degree of consanguinity or second of affinity of the notary who authenticates the will.” The plaintiffs contend that the will involved in this case is null on the ground that Lies.
The parties stipulated that Beverley has a law office in San Juan of which he is the sole owner; that Castro, Rodriguez and Reichard are employees of Beverley from whom they receive a monthly fixed salary and a bonus; that for 1948 these attorneys received certain sums which are set forth in the stipulation as salaries and bonuses; that during 1948 the testatrix was a client of Beverley; that Beverley’s office collected the corresponding fees for the execution of this will; and that no part of this fee went to Castro, who was compensated for all his services as an employee of that office by his salary and bonus.
Beverley testified that Castro, Rodríguez and Reichard are all his employees; that none of them has a fixed contract; that they have no right to the bonus but that he fixes it in his own discretion; that he distributes the work in his office and establishes the duties of the lawyers; that none of the lawyers in his office, including Castro, may require any of the other lawyers to assist him for a particular purpose; that “If Castro wants one of the boys to help him, he comes to me and says ‘this is an important or big matter and I need the help of another lawyer:’ Then I would ask, ‘which lawyer do you prefer?’ He would say Rodriguez, or López, or Iván, or other lawyers. This has occurred many times, that he has asked for the help of others, but through me”; that there is no hierarchy in his office; that as far as he is concerned, all the lawyers in his office are on the same level, • although they receive different salaries, based on experience, skill and other factors.
In the light of the foregoing, we do not think the lower court erred in stating both in its findings of fact and in its conclusions of law that on the date of execution of the will Rodríguez and Reichard were not amanuenses or clerks of Castro, the notary who authenticated the will, but rather
Castro did not hire and could not fire Rodríguez and Reichard. Nor could he direct them to work for him on a. particular matter. At the most he could request their-assistance in a particular case only through Beverley.. Under these circumstances, we cannot hold that they were, in any way subordinate to him, in the sort of hierarchy envisaged by the plaintiffs, despite the fact that Castro had more experience, handled more important matters, and received a larger salary and bonus than they did. In short,' Castro, Rodríguez and Reichard were all fellow-employees of Beverley and therefore subordinate to the latter; but none of them was subordinate to each other. The lower court therefore did not err in holding that Rodríguez and Reichard were not clerks or amanuenses of Castro, the notary who authenticated the will, under $ 630 of the Civil Code.
This is a case of first impression in this Court. None of the cases cited by the parties from the Supreme Court of Spain is decisive on this point. However, we do not agree with the plaintiffs that the Supreme Court of Spain has held
Once we have reached the conclusion that Rodríguez and Reichard were not disqualified from acting as witnesses to the will, the other errors fall by the wayside. These assignments are that the lower court erred (1) in refusing the petition of the plaintiffs to consider the complaint as amended to conform to- the proof, (2) in refusing to admit in evidence an exhibit showing that Rodríguez and Reichard acted as witnesses to documents executed before notary Castro on a number of other occasions, (3) in stating that the prohibition involved herein does not apply to attorneys, and (4) in stating that the testimony of Rafael A. González, one of the witnesses to the will, does not prove the allegations of the complaint.
The first two of these errors relate to an effort by the •plaintiffs to show an established practice by Castro to use Rodríguez and Reichard as witnesses to his notarial documents. But once we have held that they were proper witnesses, the existence of this alleged practice becomes irrelevant. We need not examine the dictum of the lower court assailed in the third error inasmuch as we have held that, even applying § 630 to attorneys, Rodriguez and
The plaintiffs argue that to affirm the judgment in this case is to condone a practice where the witnesses to a will work in the same law office as the notary who authenticates the will and would therefore be unlikely to testify after the death of the testator that the formalities required by law did not take place when the will was executed. But if this is an undesirable practice, the remedy lies in the hands of the Legislature, not ours.
The judgment of the district court will be affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.