248 F. 10 | 1st Cir. | 1918
This is an appeal from a judgment of the Supreme Court of Porto Rico rendered March 5, 1913, affirming a judgment rendered by the district court of San Juan on May 24, 1910. The opinion of the Supreme Court is reported 19 P. R. R. 184.
There are three appellants, namely, Elena Graham O’Brien and Andres B. and Eduarda Crosas Graham, composing the succession of
The appellants brought the suit in the district court, which resulted in the above judgment, now appealed from, on November 14, 1908. It was entitled:
“Action for nullity of acts and contracts, cancellation of inscriptions, dissolution of community, accounting of executorship and demand for inheritance.”
The defendants named were Andres Crosas O’Ferral, the present appellee, and Rafael Margari. The court was asked to declare null and void certain conveyances, by Margari to the present appellee, of property wherein such succession claimed an interest; to declare null and void a subsequent partition, inventory, and assessment of -the estate of said Eduardo E. Crosas O’Ferral, made by said appellee, and approved June 7, 1877, by the judge of first instance for the Cathedral district in San Juan, together with certain transactions by said appel-lee involved in or connected therewith; and also to require an accounting by the appellee of said decedent’s estate in his charge as executor. The district court decided in favor of the defendants and dismissed the complaint.
When the above suit was brought, the partition proceedings referred to had stood approved for 21 years. The conveyances by Margari to the appellee had stood unquestioned for a still longer period. The two children above named were then, respectively, 31 years and 7 months and 30 years and 5 months old. It does not appear that their mother was not of full legal capacity, either when said conveyances were made or when said partition proceedings were approved. It appeared without question that she. had been represented in said proceedings by one Miguel Sainz, under a power duly executed by her, and her own testimony was that she had herself accepted at the time, as satisfactory, accounts based thereon, as approved by said court, subsequently submitted to her by the appellee.
Whatever may have been the age at which majority began under the Spanish law previously in force in Porto Rico, it has been 21 years ever since it was so fixed by an order of the United States military government dated December 18, 1899. The present Civil Code, which went into effect March 1, 1902, has since that date so provided in section -317. See Aguilar v. Vasquez, 6 P. R. 1, 9. Both the above
The Supreme Court held (19 P. It. 233) that there could be—
“no doubt that the action to secure nullity oE the contracts and stipulations above referred to, if proper, had prescribed by the expiration of the four years which the law provides for its commencement, which period of time is the same as that fixed for the rescission of partitions.”
This determination of a pure question of local law is one which this court will not disturb, but, on the contrary, will uphold, except on conviction on its part of clear error committed. Cardona v. Quinones, 240 U. S. 83, 88, 36 Sup. Ct. 346, 60 L. Ed. 538. These two appellants fail entirely to convince us that dear error was committed. There is no attempt on their part to explain or excuse the delay of 9 years. On the theory that they did not become qualified to sue until they were 25 years old, according to the Spanish law before 1899, there is still a delay of more than 4 years left without explanation or excuse.
The appellants relied mainly upon a contention that the accounting and partition proceedings of 1887 were void, because they were not properly made parties thereto — in the cases of the two minors, because the appointment of a guardian ad litem for them, as shown by the record, was not in accordance with law, and in the case of their mother, represented, according to the record, by an attorney under a power executed by her, because said power authorized the attorney to act only in a “judicial settlement” of the estate to which the proceedings related. The proceedings, though before, and approved, as has been stated, by, a judge of first instance, did not, it is said, constitute a “judicial settlement” within the meaning of the power.
As to the power of attorney in question, under which Elena Graham appears to have been represented in the proceedings of 1887, its due execution by her in New York, on December 13, 1886, is not disputed. By it she -granted to Miguel Sainz, of Porto Rico, “authority to take in her name all legal steps necessary for the settlement of the estate of her deceased husband,” arid, after giving him authority to take various steps specifically mentioned, “to perform all and every act inherent to his power until the final termination of the testamentary proceedings.” We cannot treat as clearly erroneous the conclusions of the Supreme Court that Sainz had authority under said power to represent her, whether the estate was settled “judicially” or “extrajudi-cially,” and that her intent, as manifested by the power, was that the settlement should be “judicial” only in case settlement of that character should he found necessary. Accepting said conclusions, we must hold that she became a party to said proceedings, and is bound by their result. Her subsequent approval of the appellee’s accounts based upon
The will involved in the proceedings was made under a power of attorney, executed by the testator before his death, and authorizing the appellee to make it thereafter according to directions in the power — a method of testamentary disposition recognized by Porto. Rican law. By this power the testator also appointed the appellee tutor and guardian ad bona of his son, the only legitimate child then born to him. The will afterward made by the appellee under said power purported to extend his appointment as tutor and guardián ad bona to the daughter also, who had meanwhile been born, two months after her father’s death.
In his petition, whereby the proceedings of 1887 were instituted,‘the-appellee represented that he was guardian ad bona of both children, that he could not legally represent them as guardian ad litem, that appointment of such a guardian to represent them was necessary, that their mother, being interested in the estate as legatee, could not legally so represent them, and that they had no near relatives who could do so. He therefore asked the court to appoint a guardian ad litem for the purpose. The court appointed Benigno Trueba to act in that capacity for both minors. He did so act, and with the approval of their mother, given through her attorney above mentioned, by joining on her behalf in the appellee’s petition for approval of the accounting and partition approved as above by the court.'
No doubt is suggested that the court of first instance had jurisdiction of the subject-matter of the proceedings, or of the appellee by whose petition they were commenced. Elena Graham had subjected herself to said jurisdiction by her appearance through her attorney, as above held. The necessity for appointing a guardian ad litem to represent the two minor children being suggested to it, we find no reason to doubt that the court had jurisdiction to make such appointment, provided only that in doing so it observed all the applicable requirements of law. These are found in articles 1851-1859 of the Spanish Code of Civil Procedure, then in force, which are quoted in the Supreme Court’s opinion. If they were observed in appointing Trueba, the minors were properly before the court, and its jurisdiction to act upon the appellee’s petition and approve the accounting and partition submitted, which were accepted by their mother and on their behalf by Trueba, cannot now be questioned by them.
It is said that, if both mother and grandmother were disqualified, the “procurator fiscal” should have been notified and heard upon the question of appointing a guardian ad litem. Articles 1814 and 1823 of the Civil Code of Procedure then in force are relied on. It is certainly far from clear that these articles require any such notice, under the circumstances supposed. If this contention was made before the Supreme Court, which does not appear, it was not regarded as having any claim to consideration requiring its mention in the opinion. The appellants fail to satisfy us that it has any merit.
The Porto Rican courts, as has been stated, appear to have considered the various allegations made in the complaint charging that in one way or another the defendant had wronged the plaintiffs in the accounting and partition, or in the conveyances which they sought to avoid, or in matters connected therewith. As to some of the questions thus raised, the Supreme Court was uncertain as to the facts, because of the obscurity and doubt in which it found them left by the records of transactions so many years before; and it therefore held that the plaintiffs had failed to sustain the burden of proof. Upon all the questions raised by the allegations referred to, its decision was in the appellee’s favor. The plaintiffs fail to satisfy us that, under such
The judgment of the Supreme Court appealed from is affirmed, and the appellee recovers his costs of appeal.