Román v. Agosto

DISSENTING 'OPINION OP

MR. JUSTICE WOLE.

In frequent opinions this court has declared that a natural child obtains a status in two ways,- — either by a voluntary act-on the part of the father in a deed, will, or other public instrument or solemn act, or else by a judgment of the court compelling such recognition from the father of the child or from his heirs in case he is dead.

In this case the theory of the petitioner and of the court below, as well as of this court, was that the child in question had acquired the voluntary status of a natural child and that it was unnecessary for it to bring a suit to compel recognition. The necessary result of the opinion of this court is that there has been and is existing a solemn recognition of the alleged natural child.

Section 675 of the Civil Code provides:

“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.”

The act is only to take effect on the death of the person performing it. It would seem to follow conclusively that the act has no effect until death occurs.

But, says the majority opinion, by section 731 of the Civil *534Code the- acknowledgment does not lose' its legal force even though the will in which it was made is revoked. From this provision, apparently, the court concludes that an acknowledgment made in a will is effective immediately. The intermediate premises are not stated and the court necessarily also holds that any adjective means, qua mandamus, are likewise available to make a notary produce a particular clause of a will intrusted to his care. Nowhere do I find any statement that an acknowledgment made in an instrument intended to he a will shall he immediately effective. The chapter in which this section 731 is found relates solely to revocations and insufficiency of wills. It does not follow that because a revocation does not affect an acknowledgment the character of the “act” mentioned in section 675 is changed. It is there immutably, until the legislature enacts differently, an act to he effective on the death of the testator. A revocation could not hurry the act if the act was only to be effective on death. The revocation of a will is not equivalent to the death of the testator.

Writings may he made to become deeds, but they only become such on delivery. Similarly, a paper or writing may be made to become the will of a particular man, but it only becomes such by reason of his death.

I am not attempting to state at this time that this writing could not be available to a natural child to compel an acknowledgment, but I do maintain that there is no will and hence no solemn act until the death of the testator. Before that time the instrument is dormant and takes no rank as a solemn document.

One might think that we were really treating of a revoked will. Such is not the fact. The alleged maker of the will, of the act described in section 675 to be effective on death, has not revoked his will. It is still presumptively a will intended to be effective on the death of Manuel Font Jiménez. Section 731 is applicable only to revoked wills.

*535The alleged testator is not dead. This is not the case of a will in the protocol of a notary acquiring the force of a public document by reason of death. At snch moment only section 731 intervenes to protect a natural child. The will, although revoked, is to be effective in regard to an acknowledgment just as though it had never been revoked. ' The clause or clauses of acknowledgment or otherwise shall have the same effect as the provisions of the unrevoked will shall have, but no more. These provisions are only effective on death. A natural child may be acknowledged by public instrument, but a document is not a public instrument merely because a notary solemnizes it (dar fe). The document must be a human act like a deed or a will. If a notary certifies that a piece of poetry was recited to him, the recital is not an act in the law and hence is not a public document. A will is known as such on death; so again I insist that there can be no public instrument and no acknowledgment by a will until death occurs.

Let us suppose, however, that the will is effective before death for the purposes of an acknowledgment, nevertheless the will would have to be examined to see that it was executed according to the forms of law or otherwise be ineffective as a will. The solemnization by the notary and witnesses and other formalities would have to appear. In the instant case the notary is required to .transcribe a clause which, transcribed alone, does not show the due formalities. In other words, the notary is required to transcribe a clause without a showing that the clause is such a solemn act as gives the child the status.

We think the petitioner must have had some idea of this, because she asked for a copy of the will itself, but the court below apparently thought that she would have no right to learn the contents of the rest of the will and hence limited its mandamus to a copy of the clause acknowledging the child.

*536TMs decision says, moreover, that the courts have the .power to compel a notary to read a will, to search its contents and extract from them a supposed or claimed clause acknowledging a natural child. It is well known that the notary who drew the will is not always the custodian of the protocol, but, even if he is, there is no presumption that he knows the pontents of a will. The notary, under the law — section 25 of the Notarial Act as amended — is solely required to perform the automatic act of maldng copies. There is no duty imposed upon him to winnow out of a will a clause which may be supposed to favor a particular person. This is not the most important aspect of the case, but it is perhaps the most obvious, as the law of mandamus exists only to compel a duty. The notary is under no duty to select, which involves a certain exercise of judgment and discretion.

Suppose the clause in the will is, as would most frequently happen: “I give to my son Juan a certain piece of property (naming it).’’ If the child named is a natural child, it would be particularly effective as an acknowledgment, but that the child is a natural one, or other matters of identification, would have to be made by the notary. The notary would have to pass on the sufficiency of the clause as well as on the identification of the child.

The will is a personal act. The act required of the notary is personal. The law of mandamus is of scant application under such conditions.

' In this particular mandamus, moreover, there is the fact that it is not the child that is seeking a copy of a notarial deed. It is the mother of the child who claims it by virtue of her patria potestas over the child. If she had brought this suit in the name of the child the situation might be different, •but it does not seem to me that she has the interest which the law requires.