Román v. Agosto

Mb. Chief Justice HeRnáhdez

delivered the opinion of the court.

On August 27, 1918, Brígida Román petitioned the District Court of San Juan, Section 1, for a.writ of mandamus •against notary Adrián Agosto commanding him to issue a (Copy of the will made by Manuel Font Jiménez on July 31, 1916, in which he acknowledged as his daughter the girl named Josefina Manuela begotten by the said Font Jimenez with the petitioner, the said notary having refused to issue such copy although the petitioner had offered to pay him the fees allowed therefor.

An alternative writ of mandamus was issued and the respondent notary having answered that the facts alleged were not sufficient to justify the writ and that his obligations as a notary prevented him from complying with it for the reason that it referred to a will made by a person who is still alive, the ease was heard, both parties appearing, and judgment was entered on October 7, 1918, commanding notary Adrian Agosto Abadía to issue to the petitioner a certified copy of the clause containing the acknowledgment of Josefina Manuela as a natural child, this clause being a part of the will made by Manuel Font Jiménez before the said notary on July 31, 1916, under No. 34 of the protocol of that year.

That judgment was appealed from to this court by the respondent notary, who alleges in support of the appeal that the petitioner is not an interested party within the meaning *531of section 25 of tlie Notarial Law because the acknowledgment made in a will lias no effect until after the death of the testator and because said section 25, in connection with section 23, authorizes notaries to issue copies of entire documents executed before them, but not of parts of them, and that the court erred also in ordering1 the notary at the trial to exhibit the protocol of the year 1916 containing the will in question.

According to section 675 of the Civil Code, .“the act by which a person disposes of all his property or of a part of it, to take effect after his death, is called a will.” Hence, a will has the juridical character of disposing of the property of the testator after his death and produces no legal effect upon the property until the death has occurred. Servera v. Otero, 22 P. R. R. 341.

According to section 727 of the Civil Code, all testamentary provisions are essentially revocable, even though the testator should state in the will his wish or resolution not to revoke them; but, as an exception to this general rule, section 731 provides that the acknowledgment of an illegitimate child does not lose its legal force, even though the will in which it was made may be revoked. As a result of that exception the acknowledgment of a natural child in a will operates legally from the time it is made and it is unnecessary to await the death of the testator; and by virtue of. such acknowledgment the natural child acquires its rights as such, but could not assert them except by evidence of the act of acknowledgment, which in this case consists of a copy of the acknowledgment clause of the will of Manuel Pont Jimenez to be entered in the civil register in order that the same may show an authentic acknowledgment of the girl Josefina Manuela.

In commenting on section-741 of the Spanish Civil Code, corresponding to section 731 of the Eevised Code, after es*532tablishing such reasons as may give rise to the revocation of wills, Manresa continues as follows •.

“But the ease is otherwise as regards a declaration acknowledging an illegitimate child, this being an act involving material facts which are not subject to modification nor depend upon the will of the testator. On the contrary, such an acknowledgment is a confession of the paternity which at once determines the mutuality of rights and obligations derived from the legal family status; and this fact being acknowledged in an authentic document, it is sufficient that it exist for a single moment in order that it may be irrevocably effective. 5 Manresa, 723-4.

The acknowledgment of a natural child in a will being irrevocably effective from the moment the will is made, an action for acknowledgment is not necessary to obtain what has already been obtained by the solemnly expressed will of the testator, whose intention could not have been that the acknowledgment should remain concealed in the notary’s protocol, for in that case he would have made a closed will.

Section 25 of the Notarial Law of March 8, 1906, as amended by Act No. 15 of March 12,1914, reads as follows:

“The parties, their ancestors and successors in the subject-matter of the contract and any person appearing as interested therein, may apply to and obtain from the notary copies of the original documents. Any other person may also obtain copies of a notarial document upon justified application to a district court, which in- its reasonable discretion may issue an order to that effect.”

Section 23 of the Act of March 8, 1906, reads as follows:

“By copy is understood a literal transcript of an. instrument executed before a notary which the latter, or the person who is lawfully in charge of the protocol, issues to the persons requesting same. ’ ’

If in the cases authorized by said section 25 a notary may issue a copy, of an entire notarial document, for the same reason he may issue a copy of the part or clause of a will wherein a right is acknowledged independently of the rest *533of the document. And not only is the acknowledged natural child an interested party who may obtain such a copy, but either of its parents is also, for the effects of the acknowledgment extend to the mother as well as to the father.

The court did not err in ordering the notary to exhibit his protocol of the year 1916, for compliance with that order tended to determine whether or not the acknowledgment had been made so that the court could decide whether or not the writ of mandamus should be issued.

The judgment must be

Affirmed.

Justices del Toro, Aldrey and Hutchison concurred. Mr. Justice Wolf dissented.