after making the above state-, ment of facts, delivered the opinion of the court as follows:
The findings of fact contained in the judgment appealed from are accepted.
In the complaint a request is made that Abraham Rodriguez be adjudged to pay three thousand eight hundred pesos, Spanish money, being equivalent to $2260, United States currency, and legal interest from December 1, 1892, to the date of payment thereof, with costs of the proceedings; while defendant prayed that the complaint be dismissed with costs against-the plaintiff, and further filed a counterclaim, requesting that Francisco Cívico be condemned to comply with the agreement entered into, and to pay the damages attending the attachment levied upon his property to secure the effectiveness of the judgment, with costs against said plaintiff.
It appears that Nicolás Rodríguez, in the ninth clause of his testament, executed on November 29, 1873, ordered that six thousand dollars, bequeathed by him to Josefa Cívico and her daughter Soledad García, be delivered to them four months after his death, and in case this should not be. possible by reason of some unforeseen circumstance, then said delivery was to be made eighteen months thereafter, which period could not be extended; with the understanding that after the first four months had expired, the proceeds of the rent earned by the masonry house which the testator owned and which was situated on the plaza of the town of Cabo Rojo, were to be paid to the legatee, deducting from said rent five hundred twelve dollars for purr *581poses mentioned in the will; and if at the expiration pf the eighteen months, for some good reason, the sum bequeathed could not he paid, the matter was to be settled between the parties, in a friendly and equitable manner, the testator Nicolás Rodríguez appointing as,,his sole and universal heir his acknowledged son, Abraham Isaac Rodriguez.
Abraham Rodriguez, as the sole and universal heir of Nicolás Rodríguez, is bound to pay Juan Cívico the legacy left by the testator to Josefa Cívico and her daughter Soledad (Jarcia, whose sole and universal heir'is at present Francisco Cívico, deducting from said legacy the two thous- and two hundred pesos, Spanish money, which Josefa had received before her death, according to the admission of the party plaintiff, said obligation being imposed upon him by articles 659, 858 and 859 of the Civil Code, applicable to the present case.
Although the various elements of evidence introduced at the trial show that Francisco Cívico and Abraham Rodriguez tried to settle the differences existing between them, in connection with the payment of the legacy which the former claims from the latter, who proposed the novation of the manner of payment by effecting the same in lands instead of money, the existence of such novation of the obligation has not been proven; for the testimony of the witnesses, who had not been called to witness the transaction which they declared was consummated by the parties litigant, but heard of it on the occasion of their visiting the house of Rodriguez on other business, is not sufficient to convince the court that the novation existed, especially in view of article 1248 of the old Civil Code, applicable to the case, which recommends that care be taken to avoid the final decision of matters,# upon the strength of testimony of witnesses, unless the truth of the same be evident,- in which instruments, private documents, or any basis of written evidence, are ordinarily made use of; to which is added *583article 1280 of the same Code, which under paragraph 6 provides that besides the contracts mentioned therein, all other contracts in which the amount of the prestations of one of the two contracting parties exceeds three hundred ■ pesos, must be reduced to writing, even though it he private.
According to articles 1100 and 1108 of aforesaid Code? “ persons obliged to deliver or to do something are in default from the moment when the creditor demands the fulfillment of the obligation, judicially or extrajudicially, the demand of the creditor, in order that default may exist, not being necessary, if the obligation or law declares it expressly, or if by reason of its nature and circumstances it may appear that the fixing of the period within which the thing was to he delivered or the services rendered, was a determinate cause to constitute the obligation and when the obligation consists in the payment of a sum of money, and the debtor should be in default, if there be no stipulation to the contrary, he is bound to pay the interest agreed upon, or the legal interest, if there he no agreement.
It does not appear from the record that the plaintiff, Francisco Cívico, creditor by reason of a legacy of a sum of money, had on any particular date made a formal demand upon the defendant, Abraham Rodriguez, for the payment ■ of said legacy, or that the testator had expressly ordered the payment of interest, which is a necessary requisite for his legatee to have a right to the same from the date of his death, according to the provisions of article 884 of aforesaid Code, whence it follows that payment thereof is due from the date when judicial demand of the legacy was made, that is to say, from August 12, 1902, when the action was instituted.
The defendant has not lost his case on all points, for, as - shown above, the complaint should be dismissed as regards payment of interest from December 1, 1892, inasmuch as the same is due only from the date of the institution of the *585suit, and, therefore, rule 63 of General Order 118, series of 1899, is not applicable to the case at bar.
In view of the aforementioned legal authorities we adjudge that we should affirm and do affirm the judgment of December 10, 1902, from which this appeal is taken, but modify the same to the effect that the defendant Abraham Rodriguez, in addition to the sum claimed, is only bound to pay legal interest thereon from August 12, 1902, when the action was instituted, without special imposition of costs in either the trial court or on appeal. The record is ordered to be returned to the District Court of Mayagüez with the proper certificate. ,
Chief Justice Quiñones and Justices Hernández and Mac-Leary concurred. Mr. Justice Figueras did not sit at the hearing of this case.