EN BANC
JOSE F. OLIVEROS,
Plaintiff-Appellant,
G.
R.
No. 1817
August
2, 1905
-versus-
ANICETA POZON,
Defendant-Appellant.
D E C I S I
O N
WILLARD, J :
This is an action
by a
lawyer to recover from his client fees for professional services.
Saturnina
Hilario died on the 5th of March, 1903, leaving a will dated the 30th
of
June, 1900. This will was presented for probate to the Court of First
Instance
of Rizal on the 14th day of March, 1903, by Nicolas Asuncion, one of
the
beneficiaries named therein. The plaintiff appeared in court as the
representative
of the defendant and opposed the probate of the will, which was denied
by the judge on the ground that the will had been executed without the
intervention of a notary. After this Decision the property of the
testatrix
was delivered to the defendant, and she turned over a part of it to
Nicolas
Asuncion.
The
plaintiff relies
upon a written contract alleged to have been signed by the defendant on
the 25th day of April, 1903 and afterward ratified by her on the 27th
day
of April, 1903. This contract provided that the defendant would give to
the plaintiff, as his fees for his services in the matter of the estate
of Saturnina Hilario one-half of the property which she might receive.
The
Court below found
as a fact that the defendant neither signed nor ratified this contract.
The evidence supports the finding that she did not sign the contract,
but
the finding that she did not ratify it before a notary public is
manifestly
and palpably against the weight of the evidence. The notary public
testified
that the defendant appeared before him and ratified the instrument. Two
witnesses, whose names are signed to the document, also testified to
the
same thing. The defendant, in her answer, admitted that in April she
had
executed a power of attorney in regard to the matter, but said that
that
power of did not contain any provision in regard to fees. At the trial
she also testified that she had intrusted the matter to the plaintiff,
and that she had made a contract with him. Nowhere in her testimony
does
she positively state that she did not appear before the notary public
and
ratify the contract. In fact, the only evidence in support of the
finding
of the court is a statement by the defendant that she did not know the
notary until June, 1903, and another statement, that the contract which
she had made with the plaintiff was by parol. These general and
indefinite
declarations by her can not overcome the positive testimony found in
the
record, to the effect that she did actually appear before the notary
and
ratify this instrument.
The
judgment will have
to be reversed and a new trial ordered. At the new trial the court
below
will have the right to take into consideration the last clause of
Section
29 of the Code of Civil Procedure, and also the nature of the
transaction
between Nicolas Asuncion and defendant, by virtue of which the latter
turned
over to the former a part of the property left by the deceased. He will
have the right to consider this transaction for the purpose of
determining
whether the share, which the plaintiff is entitled to receive, should
be
estimated upon all the property of the estate, or only upon that
portion
of it which the defendant received by virtue of this arrangement with
Nicolas
Asuncion.
The
judgment of the
Court below is reversed, and the case remanded to the court below for a
new trial, each party in this court to pay his own costs. After the
expiration
of twenty days judgment will be entered in conformity herewith.
Arellano, C.J.,
Torres, Mapa, Johnson and Carson, JJ., concur.
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