G.R. No. 1817. August 02, 1905

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 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.