189 F.

2d 163

MELON et al.
v.
ENTIDAD PROVINCIA RELIGIOSA DE PADRES
MERCEDARIOS DE CASTILLA.
MELON et al.
v.
CONGREGACION DE LOS RELIGIOSOS DE NUESTRA
SENORA DE LA MERCED et al.
No. 4505.
No. 4506.

United States Court of Appeals, First Circuit.

May 16, 1951.

Jose O. Sabater, San Juan, P. R. (Walter L. Newsom, Jr., San Juan, P. R.,
on brief), for appellants.
Rafael O. Fernandez, San Juan, P. R. (Charles R. Hartzell, San Juan, P.
R., on brief), for appellees.
Before MARIS, WOODBURY and HARTIGAN, Circuit Judges.
MARIS, Circuit Judge.

These are appeals by the plaintiffs, Maria de los Angeles Melon and her
husband Adolfo Fournier Cuadros, from judgments of the United States District
Court for the District of Puerto Rico dismissing their complaints for failure to
state causes of action. The complainants seek to have certain deeds under which
the defendants hold title to several parcels of real estate in Puerto Rico declared
void and to have an accounting of the fruits of the properties. The complaints
allege that the execution of the deeds by the former owner Pantaleona Melon
Saenz, a resident of Barcelona, Spain, was obtained by fraud, that Pantaleona
Melon Saenz by a sacramental will made upon her deathbed in Barcelona and
proved after her death in accordance with an ancient law still in force in that

city constituted her niece, Maria de los Angeles Melon, one of the plaintiffs, her
sole and universal heir, and that Maria as the sole and universal heir of
Pantaleona Melon Saenz is the true owner of the Puerto Rican properties in
question.
2

It appears that Pantaleona Melon Saenz, having suffered a cerebral hemorrhage

and being in extremis, on July 7, 1937 declared in the presence of witnesses
that it was her will that her niece should be her only and universal heir.
Pantaleona Melon Saenz died two days later. In accordance with an ancient law
or privilege conferred upon citizens of Barcelona by Pedro II in the year 12831
the nuncupative will of Pantaleona Melon Saenz was proved in the following
manner. On July 11, 1939 pursuant to prior notice and by order of the Court of
First Instance No. 1 of Barcelona the judge, the secretary of the court, the
fiscal, the witnesses and counsel appeared at the Altar of the Holy Cross,
formerly San Felix Martyr, in the ancient Church of Saints Justo and Pastor in
Barcelona. Six candles and the Holy Gospel having been placed upon the
Consecrated Stone, the court was there convened and the parish priest
administered the oath to the two witnesses. The witnesses were then separately
examined at the altar and each testified that the decedent, having suffered an
attack of hemiplegia but being in their opinion in full possession of her mental
faculties, stated her will to them as being the designation of her niece Angeles
Melon as her only and universal heir. They also stated that two other persons
were present, a female friend of the decedent and her female servant. The two
women, however, were not competent witnesses under the local law.

Counsel then requested the reduction to a sacramental testament of the will thus
testified to and its protocolization before a notary. The fiscal, however, objected
upon the ground that the privilege of establishing and protocolizing a
sacramental will is given by the law of Pedro II only to persons domiciled in
Barcelona and that it had not been established that the decedent was so
domiciled. Thereupon proof was furnished that the decedent had been
domiciled in Barcelona for more than ten years before her death. The fiscal
then withdrew his objection and the Court of First Instance No. 1 of Barcelona
directed that the decedent's will as testified to by the witnesses be reduced to a
sacramental testament and that the record thereof be protocolized before a
notary, which was done. An authenticated copy of its protocolization is in the
record before us.

It is upon the sacramental will thus proved and protocolized in Barcelona that
the plaintiffs rely as the basis for their title to the Puerto Rican real estate
involved in these suits. The action of the district court in dismissing the
complaints was based upon its conclusion that the will was ineffective to pass

title to Maria to the Puerto Rican real estate in question and that she and her
husband accordingly have no standing to prosecute the suits. The question thus
raised and which this court is called upon to decide is whether the law of Puerto
Rico will recognize as effective to pass title to real estate situated in Puerto
Rico a foreign will the formalities and proof of which do not comply with
Puerto Rican law.
5

That the question involved is the one just stated becomes clear when we recall
that under Section 650 of the Civil Code of Puerto Rico, 1930 Ed., a
nuncupative will made without the assistance of a notary by a testator in
imminent danger of death must be made before five competent witnesses,2
whereas in the present case there were only four witnesses present when
Pantaleona Melon Saenz stated her will. Moreover under Sections 534 et seq. of
the Code of Civil Procedure of Puerto Rico, 1933 Ed., the procedure for
reducing a nuncupative will to a public instrument is prescribed. It is also
provided that proceedings for that purpose may be instituted in an insular
district court. This procedure was, of course, not followed in the case of the
nuncupative will of Pantaleona Melon Saenz which was, as we have seen,
proved and protocolized in accordance with the ancient law in force in
Barcelona.

In support of the plaintiffs' contention that the will must be recognized under
the Puerto Rican law as effective to pass title to the Puerto Rican properties
they refer to various sections of the Civil Code of Puerto Rico. The sections of
the Code which appear to be involved are set out in a footnote.3

The plaintiffs particularly stress the provision contained in Section 11 that the
forms and solemnities of wills are governed by the laws of the country in which
they are executed. This, they say, establishes for Puerto Rico the conflicts rule
that if a will is executed and proved in accordance with the law of the place
where it was executed it is to be regarded as valid in Puerto Rico for all
purposes, including the disposition of title to Puerto Rican real estate. The
defendants on the other hand stress the provision of Section 10 that real
property is subject to the laws of the country in which it is situated, as well as
the provision of Section 636 that any will shall be void if the formalities
prescribed by Chapter 1, Title III, Book III of the Civil Code have not been
observed in its execution. The provision of Section 11 that the forms and
solemnities of a will are to be governed by the laws of the country in which it is
executed and the provisions of Sections 625 and 626 that a will executed in a
foreign country is considered special must, the defendants say, be read as
relating to Section 666 which specifically authorizes citizens of Puerto Rico to
make wills abroad according to the forms established by the laws of the country

in which they are sojourning.

8

The reconciliation of the language of these Code provisions with respect to

foreign wills and their proper interpretation presents an interesting problem. But
it is a problem the solution of which is peculiarly within the competence of the
Supreme Court of Puerto Rico.4 We accordingly look to the decisions of that
court for guidance. Turning to those decisions we find that the Supreme Court
has had occasion to consider the precise question of conflict of laws with which
we are here confronted. That court has held that under the Civil Code of Puerto
Rico, which in this respect departs from the Spanish Civil Code, the rule of lex
rei sitae has been adopted to determine not only the validity and effect of the
provisions of wills purporting to dispose of real estate in Puerto Rico but also
the formalities required in the execution of such wills and the capacity of
parties to make them. Coln et al. v. Registrar of Aquadilla, 1915, 22 P.R.R.
344; Bracons v. Registrar of San Juan, 1917, 24 P.R.R. 703; Pastor-Gomila v.
Mir-Pastor, 1925, 34 P.R.R. 50.

In the Coln case, the first of the cases just cited, the Supreme Court reviewed
the Spanish Civil Code, the report of the Puerto Rican Insular Code
Commission of 1902 and the experience of the Louisiana courts with respect to
the solution of this problem. The court definitely decided that the American
rule of lex rei sitae is the proper test to be applied under the law of Puerto Rico
to determine the legal capacity of parties to real estate transactions. The court
stated, 22 P.R.R. at page 351 that this rule "does no violence either to the letter
or the spirit of our Civil Code or to any fundamental principle underlying the
same." The rule of lex rei sitae was specifically applied by the Supreme Court
to a Spanish will in the Pastor-Gomila case. In that case the court, following the
rule laid down in the Coln case, held that a holographic will of a Spanish
subject which had been allowed by a Spanish court and protocolized by a
Spanish notary could not be given the effect of vesting title in the devisee
named therein to real estate situated in Puerto Rico. There was some question in
that case as to whether the testator, who had lived for many years in Puerto
Rico but died in Spain, was domiciled in the latter country at the time of his
death. The court, however, stated, 34 P.R.R. at pages 56-57: "But even
supposing that he went to Spain to reside there permanently during the balance
of his life and that for this reason his last domicile was in Spain, still the
decision of the Court of First Instance of Palma declaring the said letters to be
the holographic will of Amador Pastor y Pastor and ordering that they be
protocoled in a notorial office in that city can produce no effect in this Island
where the real property is situated, because, as held by this court in the case of
Coln v. Registrar, 22 P.R.R. 344, the adoption and application of the rule of
lex rei sitae as held by the American courts to include and govern the capacity

of the parties does no violence either to the letter or to the spirit of our Civil
Code or to any of its fundamental principles and establishes once for all a
single, fixed and rational rule conducive to the avoidance of inconsistencies and
confusion in our decisions referring to real and personal statutes and the effect
of foreign laws; and applying the said doctrine in that case we held that a
Spanish tutor of minors residing in Spain, authorized by the family council, as
required by the Spanish Civil Code, to execute the cancellation of a mortgage
upon real estate situated in Porto Rico, needed for that purpose authorization of
the district court within whose jurisdiction the property was situated."
10

The American rule of lex rei sitae as it applies to the question with which we
are here confronted is stated in Section 249 of the Restatement of the Law of
Conflict of Laws, as follows: "The validity and effect of a will of an interest in
land are determined by the law of the state where the land is."

11

Comment a to Section 249 of the Restatement states: "The law of the state
where the land is determines the capacity of a person to make a will or to
accept a devise, the form of the will, the validity of a particular provision in the
will, and the nature of the estate created."

12

Under this rule the validity of the will of Pantaleona Melon Saenz, insofar as it
purports to pass an interest in her Puerto Rican real estate, is to be determined
by the law of Puerto Rico. As we have seen, the will fails to meet the
requirements of that law since although it clearly was an open nuncupative will
of the kind contemplated by Section 650 of the Civil Code it was not made in
the presence of five witnesses as that section requires. The requirements of that
section, which were obviously intended to discourage fraud, must be strictly
complied with. Oller v. Sol, et al., 1920, 28 P.R.R. 280. The will of Pantaleona
Melon Saenz which did not comply with it cannot, therefore, be recognized as
valid to pass title to the plaintiff Maria de los Angeles Melon to the Puerto
Rican real estate involved in these suits. We need, therefore, not decide whether
the will is also ineffective because it has not been proved and protocolized in
Puerto Rico. This would present a more difficult problem although there is
some indication that in this respect also the American rule of lex rei sitae is in
force in Puerto Rico. See the statement of the Supreme Court, above quoted, in
Pastor-Gomila v. Mir-Pastor, supra. But see the contrary suggestion in the
later case of Vilella v. Registrar, 1927, 36 P.R.R. 714, 721.

13

The judgments of the district court will be affirmed.

Notes:

Notes:
1

Chapter 48 of the Privilege of "Recognoverunt Proceres," Lib. I, title 13, vol. 2

of the Constitution of Catalonia. By decisions of the Supreme Court of Spain of
March 18, 1864; June 18, 1864; February 21, 1870; June 26, 1877; June 15,
1878; April 28, 1885; April 10, 1891; October 30, 1901; May 4, 1904; August
31, 1908; November 27, 1909; and March 13, 1912 it has been held that this
ancient law is still in force in Barcelona

"Section 650. If the testator is in imminent danger of death, the will may be
executed before five competent witnesses without the necessity of a notary."

Civil Code of Puerto Rico, 1930 Ed

"Section 10. Personal property is subject to the laws of the nation of the
owner thereof; real property to the laws of the country in which it is situated.
"Section 11. The forms and solemnities of contracts, wills and other public
instruments are governed by the laws of the country in which they are
executed.
"When such acts are authorized by diplomatic or consular officials of the
United States abroad, the formalities established for their execution by the laws
of the United States shall be observed.
"Notwithstanding the provisions of this and the preceding section, prohibitory
laws relating to persons, their acts or property, and those which relate to public
order and to good morals shall not be held invalid by reason of laws, decisions,
regulations or agreements in force in any foreign country.
******
"Section 625. Wills may be ordinary or special.
"Ordinary wills may be holographic, open, or closed.
"Section 626. Military and maritime wills and those executed in foreign
countries are considered special.
******
"Section 636. Any will, in the execution of which, the formalities,

respectively established in this chapter, have not been observed, shall be void.
******
"Section 666. Citizens of Porto Rico may make wills abroad, according to
the forms established by the laws of the country in which they are sojourning.
"They may also make wills on the high seas, while on passage in a ship of the
United States or foreign country, in accordance with the laws of the State or
Nation to which the ship belongs.
"They may also execute holographic wills, under section 637, even in countries
the laws of which do not recognize that form of will.
******
"Section 674. Wills shall become void or testamentary provisions without
effect, in whole or in part, only in the cases expressly prescribed in this Code."
4

Cordova v. Folgueras, 1913, 227 U.S. 375, 33 S.Ct. 350, 57 L.Ed. 556; De
Castro v. Board of Com'rs, 1944, 322 U. S. 451, 64 S.Ct. 1121, 88 L.Ed. 1384