delivered the opinion of the court.'
On October 30,1906, Doña Victoria López Julbe died intestate at Hnmacao. On December 3, 1908, Doña Dolores Julbe the mother of the decedent prayed of the District Court of Hn-macao that she be declared the sole universal heiress of her daughter. On August 7, 1909, the respondent, Julio D. Guzman Toro, asked to intervene in the suit and that he be declared heir of his wife of his portion in usufruct which, as widower, was apportioned to him by the Law of March 9, 1905. The district court, after a hearing, declared Dolores Julbe in the capacity as mother and Julio D. Guzman in his capacity as widower surviving, as intestate heirs of the decedent. The ground of this appeal is that no provision is made for the widower in advance of the rights of the ascendants of a person deceased.
*504Before 1888, when the Spanish Civil Code went into effect, the law in matters of intestate succession recognized certain rights in favor of the widow. The law was silent with respect to the widower. The Siete Partidas, law 7 — Title III, Partida 6 — provided that a widow should receive a fourth part of the estate, not to exceed a certain amount and also provided that she should receive nothing at all if she had enough of her own upon which she could live honestly. This appears to have been all the law on the subject of the rights of either the husband or wife surviving until 1888. (See the judgment of the Supreme Court of Spain of October 20, 1860.)
The Spanish Civil Code which was in force in Porto Rico until 1902, made a difference between testate succession and intestate succession laying down the principles which should regulate each of them.
The pertinent provisions of the Spanish Civil Code applicable to the case of the widower are as follows:
(War Department Translation.)
Intestate succession:
“Art. 807. — Heirs by force of law are:
“1. Legitimate children and descendants, with regard to their legitimate parents and ascendants.
“2. In the absence of the foregoing, the legitimate parents and ascendants, with regard to their legitimate children and descendants.
“3. The widower or widow, the natural children legally acknowledged, and the father or the mother of the latter, in the manner and extent established in articles 834, 835, 836, 837, 840, 841, 842 and 846.
“Art. 834. — The widower or widow, who on the death of his or her spouse, is not divorced, or should be so by,default of the deceased spouse, shall have a right to a portion in usufruct equal to that corresponding by way of legal portion to each of the legitimate children or descendants who have not received any betterment.
“If one legitimate child or descendant only survives, the widower or widow shall have the usufruct of the third destined to the better*505ment, the former preserving the direct ownership until, on the death of the surviving spouse, the title is merged in him.
“Art. 836. — Should the testator not leave any descendants, but only ascendants, the surviving spouse shall have a right to the third of the estate in usufruct.
. “Art. 837. — If the testator should leave neither legitimate ascendants nor descendants, the surviving spouse shall he entitled to one-half of the estate also in usufruct.”
In intestate succession:
“Art. 953. — Should there be brothers or sisters or children of brothers or sisters, the surviving widow or widower shall have a right to receive the part of the inheritance in usufruct assigned him or her in article 837.
“Art. 982. — In order that a testamentary succession in the right of accretion may take place it is necessary:
“1. That two or more persons are designated to the same inheritance or to the same portion thereof without a special -designation of shares.
‘ ‘ 2. That one of the persons designated dies before the testator or renounces the inheritance or is disqualified'to receive it.”
As may be seen tlie Code said nothing about the rights of the widower when there were offspring or ancestors of the decedent. This fact has been made the subject of comment by all commentators, Alcubilla, Yalverde, Manresa and Martinez Buiz being in favor of the idea that the widower is entitled to the same usufruct whether the succession is testate or intestate and Morell and Scaevola being against such idea. The arguments in favor of the same rights in either ease are based on the fact that the widower is a forced heir except when he is separated from his wife on account of divorce; that he cannot be disinherited without just cause; that it is unnecessary .to refer to his rightful share in intestate succession because having only a right to the usufruct it is only logically necessary to name those who are entitled to succeed *506to the property; that the intention of the legislature was clear to recognize such right as may he seen from the inspection of the proposed Civil Code submitted to the Cortes (ley de bases) and that the failure to mention him in connection with descendents and ascendants, if such connection should be made up by applying the rules of testate succession in accordance with the principle ubi eadem est ration eadem debit esse juris dispo sitio.
On the other hand Scaevola says as follows:
“1. The vidual usufruct, is essentially a legal portion (legítima)— that is to say, a forced hereditary share — of which the testator cannot dispose because the law reserves it in favor of the surviving spouse who has not obtained a divorce or been separated on account of the fault of the predeceased spouse.
“2. The phrase, a legal portion (legítima), like that of forced heir, collective and reciprocal terms, refer essentially to testate succession.
“3. This legal portion is an exception to the principle of the free disposition of property and as such is of a restrictive nature, being solely applied to the cases expressly marked out by the law without being capable of being extended to other unenumerated cases. And if this is of such general application with respect to the legal portion of descendants and ascendants a stronger reason must exist with respect to the portion of the widower which has less potency than the portions of others seeing that the Code confines his rights to a limited space when it says that the widower is a forced heir in the manner and form, determined by sections 834 to 837. These sections form the realm of the vidual usufruct and it is there that it holds sway; outside thereof this right is without force and has no legal existence.
“4. Intestate succession, in the Spanish Civil Law, is complementary to or in substitution of the testate. In such succession the Legislature (and for that reason it is called legal portion) supplies the lack of the individual will of a person and fixes general rules for the case in which the expression of this will is lacking. It is therefore, we may say, a collective will made by law for all the cases in which there is no individual will (testamento) interpreting the will (voluntad) of those dying thus intestate.
*507“5. These general principles are brought to light in a provision of the Civil Code, section 913, according to which, in default of testamentary heirs, the law, according to rules to be expressed, devolves the inheritance to the legitimate and natural relatives of the deceased to the widow or widower and to the State.
! ‘ 6. Among the legal rules by which the intestate succession is distinguished none recognize in the surviving spouse a vidual usufruct when there are legitimate or natural ascendants or descendants, these provisions being limited to conceding the same along, with brothers or sons of brothers (sec. 953). As there does not exist then, any provision in favor of the vidual usufruct, except in the mentioned cases, its existence must be limited to them and not extend the same to cases not mentioned in the Code.
“7. Although it may be conceded outside of the legal domain, that the nonexistence of a usufruct in favor of the widower in all cases is due to omission or want of care, this idea is inadmissible in the legal sphere. The Legislature did not forget the vidual usufruct in treating of the intestate succession, because it provided for the same in one case (art. 953), and it must be presumed a conditional presumption that it foresaw the possibility of providing for the same in the other cases, and that for unknown reasons did not wish to estab-. lish this right except in the one case where it is actually expressed. It could have given life to this right in the other cases, nothing hindered, and in not having done so it must be presumed that the omission was made voluntarily and not by forgetfulness. "Where the law wishes it speaks, when not it is silent; ubi lex voluit dixit ubi oioluit, taeuit.
“8. More force is given to this view by the differing attitude of the law with respect to natural children in comparison with the same in connection with the widower.' Aside from the fact that it devotes a subdivision to them, them exists section 943 especially devoted to determining the hereditary portion of the natural children along with legal descendants and ascendants.
“The mention of the provision shows its necessity. If it were unnecessary it would not have been included in the Code and if it were not set out. there, no one would venture to maintain that natural children have a right to intestate succession when there were ascendants and decendants because the latter would exclude them completely.
“Therefore the same thing happens with respect to the vidual usu-fruct ; for it to exist in intestate succession when there are legal as*508cendants and descendants or natural children there would have to be also a special provision.” • (See Comentarios al Código Civil de Q. Seaevola, vol. 14, p. 615, et seq.)
The Supreme Court of Spain has never passed upon the question. The General Directorate of Registries found in favor of the right of the widower to usufruct but without giving any other substantial reason than that such was the legislative intention.
In 1902 the Legislature of Porto Rico passed the Civil Code and the Spanish Civil Code was thereby repealed. The provisions of the new Civil Code with respect to the rights of the widower were new and all of such rights clearly and precisely defined. Section 821, although placed in the part of the Code relating to testate succession, fixes the rights of the widower with respect to the intestate succession. This is made clear by a comparison of section 821 with sections 822 and 920. The Legislature of Porto Rico, however, by the Law of March 9, 1905, expressly repealed section 821 and reenacted the provisions of the Spanish Civil Code which relate to testate succession. That latest law makes no reference to intestate succession. Therefore, the question again arises of the rights of the widower, who is now placed in a worse position than he was before, because section 953 of the Spanish Civil Code which recognized the rights of the widower along with those of brothers or nephews, as the case may be, was repealed by the present Code and was not reenacted by the Law of March 6,1905. We are, therefore, driven to the conclusion, whether it happened by an oversight or otherwise, that the Legislature in fixing the rights of the widower did not prefer him to or consider him along with parents, children, brothers, or nephews but limited itself to defining in section 920 that “in default of brother and nephews, the. surviving spouse shall succeed to all the property of the descendant, whether or not the sisters and nephews be of the whole blood or the half blood.”
*509It is a casus omissus in tlie law as it stands to-day. Tlie Legislature liad tlie power to determine wlio should he the forced heirs and who should succeed iu case of intestacy. The words used are unmistakable and however inconsistent they may seem it is not for the court to substitute its will for that of the Legislature. It would be just as reasonable to take the intestate succession as expressing the real intention of the Legislature and determine the rights of forced heirs by the provisions with inference' to such intestate succession. The Siete Partidas limited the portion of the widow to the amount it deemed necessary to her support. The Legislature of Porto Eico may have thought that the rights of the next of kin, from whom the property of a woman was likely to be derived, were to be preferred to those of a husband who is presumed to be self-supporting. In the case under consideration to hold otherwise would be to interfere with the plainly expressed rights of a- parent.
The judgment must be reversed and the case must be sent back to the District Court of Humacao with instructions to grant the petition of Doña Dolores Julbe.
Reversed.
Justices MacLeary and del Toro concurred. Chief Justice Hernández and Justice Higueras dissented.