DISSENTING OPINION OP
MR. CHIEF JUSTICE HERNANDEZ AND MR. JUSTICE FIGUERAS.In the month of December, 1908, Dolores Julbe, widow of López, appeared before the District Court for the Judicial District of Humacao and made a sworn application .praying that she be declared the sole and universal heir of her daughter, Victoria López de Guzman, alleging that Victoria had died in Humacao on October 30, 1906, having been married only once, to Julio D. Guzman y Toro, by which marriage they *510liad a child named María del Carmen, who died December 10, 1904; that to the best of petitioner’s knowledge and belief Victoria died without making any testamentary disposition whatever; that the petitioner, Dolores Julbe, as the mother of Victoria, was the only person entitled to succeed to her rights and actions; that the facts alleged can be proved by the testimony of witnesses and the documentary evidence attached to the petition, as stated, but which have not come up certified in the record.
On August 7 of the year following, 1909, Julio D. Guz-mán filed in the said Court a motion in intervention praying that in declaring the heirs of his deceased wife he be included in the declaration as an heir by force of law, entitled to the usufructuary share of the widower provided for by the Act of March 9, 1905.
The court below, after considering the claims of both parties and the evidence, consisting of the testimony of witnesses and documents presented, rendered its decision on August 27, whereby Dolores Julbe, the widow- of López, and as the mother of the deceased, Victoria López, and Julio D. Guzman, as the surviving widower of the deceased, were declared the sole intestate heirs of Victoria López Julbe in such shares as provided for under the law in force in 1906, which was the year in which their predecessor in interest died; and from this decision Dolores Julbe took an appeal to this Supreme Court.
Counsel for the appellant alleges as the only ground for the appeal that, according to the Act approved March 9, 1905, to modify and repeal certain sections of the Revised Civil Code in regard to inheritances, the widow or widower has no right of inheritance where the predecessor in interest dies intestate, no matter what his or her rights of succession might be under a will.
*511From an examination of the former Spanish Civil Code we find that section 5, chapter 2, title 3, book 3, articles 806 and 807 contain the following provisions:
“Art. 806. — A legal portion is that part of the property which the testator cannot dispose of because the law has reserved it for specified heirs, called, on that account, heirs by force of law.
“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.”
It is to be noted tliat these articles, 834, 835, 836, and 837, refer to the rights of the widower, while articles 840, 841, 842, and 846, refer to the rights of legitimate children.
The articles first cited read as follows:
“Art. 834. — The widower or widow who, on the death of his or her spouse, is not divorced, or should be so by the fault 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 betterment, the former preserving the direct ownership until, on the death of the surviving spouse, the title is merged in him.
“If the spouses should be separated by a suit for divorce, the result of the suit shall be awaited.
“If there should have been a pardon or a reconciliation between the divorced spouses, the surviving one shall preserve his or her rights.
“Art. 835. — The hereditary portion, allotted in usufruct to the *512widowed spouse, must be taken from tlie third of tbe property destined to the betterments of the children.
“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.
“This third shall be taken from the free half, the testator being allowed to dispose of the ownership of the same.
“Art. 837.' — If the testator should leave neither legitimate ascendants nor descendants, the surviving spouse shall be entitled to one-half of the estate also in usufruct.”
As will be seen, the rights of the widower in the testate succession are defined and enumerated in articles 807, 834, 835, 836, and 837, of the former code; and we say testate succession because the words “legitimate,” “improvement,” and “testator,” employed in said articles, cannot be deemed to refer to an intestate succession, but to a testate succession.
Article 806 of the Spanish Civil Code was reproduced in our Revised Code as section 794, and article 807 was substituted by section 795, which we quote as follows:
“Section 795. — The following are heirs at law:
“I. Children and legitimate issue with respect to their fathers and lawful ancestors.
“2. Acknowledged illegitimate children with respect to their fathers and natural ancestors, and with respect to the lawful ancestors when there are no legitimate issue.
“3. In the absence of the former, fathers and lawful ancestors with respect to their children and legitimate issue.
“4. The parents of the acknowledged illegitimate child in respect to him and his. natural issue and in respect to the lawful issue when there are no lawful ancestors.
“5. The surviving husband or wife in the form established by this Code.”
That form appears established in sections 821 and 822 *513of the .Revised Code, which substituted articles 834, 835, 836, and 837 of the old Code. These articles read as follows:
'' Section 821. — The surviving husband or wife shall have the right if the decedent shall leave a legitimate child or an acknowledged illegitimate child or issue of these to one-half of the real and personal property of which the inheritance consists.
‘ ‘ If the deceased spouse shall have left more than one child living or represented by his issue, if any of them had died the surviving spouse shall have the right only to the third part of the real and personal property of which the inheritance consists.
“When there is no issue, but if there are ancestors, the surviving spouse shall have the right to the half of the real and personal property of the inheritance.
'“When there is neither surviving issue nor ancestors, the surviving spouse shall have the right to two-thirds of the real and personal property of the inheritance.
“Section 822. — Where there is a will the surviving husband or wife shall have the right to one-lialf of the personal property in full and absolute ownership, and to a life estate in one-third of the real property. ’ ’
The Revised Civil Code in these sections fixes the rights of the widower both' as to testate and intestate successions, as is shown by a mere perusal thereof.
By the Act of March 9,1905, sections 795, 796, 797, 801, 811, 812, 815, 821, 822, 823, and 824, of the Revised Civil Code were repealed and section 795 was substituted by section 1 of the said act, which reads as follows:
“Section 1. — Forced heirs 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 acknowl*514edged, and tbe father- or the mother of the latter in the manner and extent established in sections 8, 9, 10, 11, 14, 15, 16, and 20 hereof.”
. Of those sections, the 8th, 9th, 10th, and 11th refer to the widower and were reproductions of articles 834 (eliminating the last paragraph thereof), 835, 836, and 837, respectively, of the old Spanish Civil Code.
Thus the provisions of the Spanish Civil Code respecting the rights of the widower in the testate succession were revived, and the changes made by the Revised Civil Code were repealed, which, as we have already said, made provision for the rights of the widower in case of either testate or intestate successions. •
We have looked in vain in the Spanish Civil Code and in the Revised Civil Code, as modified by the Act of March 9, 1905, for any provision saving the rights of the widower or which expressly acknowledges them in case of intestate succession of the deceased spouse when there are ascendants or descendants, and in view of the law’s silence in this regard we ask whether a widower should be deprived of all rights when he appears in the intestate succession with the descendants or ascendants, as maintained by the appellant in defending her rights of succession as against and to the absolute exclusion of Julio D. Gruzmán, the surviving spouse of the deceased, Victoria Julbe.
We must answer that question in the negative because we cannot admit that the same law which provides that a testator shall not dispose of a certain part of his property to be reserved in usufruct to the surviving spouse, where there are ascendants or descendants, can deprive the surviving spouse, in ease of intestacy, of all his rights when there are descendants or ascendants.
The character of forced heirs which article 807 of the Spanish Civil Code, section 795 of the Revised Code and sec-*515ition 1 of the Act of March 9,1905, give to the widower, fixing his participation in the estate of the deceased spouse under a will, is based on the representation which one spouse has with respect to the other in the family, in their life together, in the love which unites them, and in the participation'which each spouse has during the marriage in the welfare or misfortune of the other.
“It may be conceived,” says José Maria Manresa in his commentaries on the Spanish Civil Code, “that where freedom to dispose of one’s property by will is granted, no privileges in respect to succession are established in favor of any one; but under the legítima system certain rights were by law recognized in a person who, like one of the spouses, filled such an important place in the family and was of such great significance to the person whose succession was involved. It was required by reason and justice. The wife, the husband and their children constitute the true family, the ties of affection and consideration uniting the spouses, the joys and sorrows shared between them do not permit the one who was everything in the home to be cast aside and perhaps left without protection in the absence of a life companion.”
These considerations exist whether it is a testate or intestate succession, and, therefore, we think that in the absence of an express provision in the Civil Code establishing the rights of the widower in the intestate succession, when he appears with descendants and ascendants, he should be granted the same rights that he would have in the testate succession, and that application should be made of the rule of construction rubi eaclem est ratio eadem debit esse juris dispositio.
Furthermore, according to section 855 of the Spanish Civil Code and 822 of the Revised Civil Code, in order that a surviving spouse may be disinherited, there must be some cause; and if it were admitted that in the intestate succession the *516surviving spouse has not under the law any right to share in the inheritance left by the deceased spouse together with the descendants and ascendants, the former could be disinherited by the death of the latter intentionally and voluntarily without will, for the purpose of defeating the rights of the surviving spouse, who would by mockery he given the character of a forced heir which is conferred upon him by virtue of law.
It, must also be borne in mind that, according to article 814 of the Spanish Civil Code, the equivalent of section 802 of the Revised Code, the preterition of the widow or widower, in case of an intestate succession, does not annul the constitution of heirs, but the one so eliminated from the inheritance preserves the rights granted by law; and as according to article 658 of the former Code (which is the equivalent of section 666 of the Revised Code), the succession is established by the desire of a man manifested in his will, and in the absence thereof, by the law itself, and as it may be established in part by the will of a man and in part by the provisions of the law, it is seen that in case of the preterition of the widower he is entitled to share in the inheritance by virtue of law, and this would not be voluntary, but an obligation imposed by the legislator and, to a certain degree, intestate.
If, in case of the preterition of the widower, there being a' will, he preserves Ms rights granted by the law under the intestate succession, he must á fortiori preserve those same rights when the other spouse dies intestate — that is to say, without expressly stating his will, and, therefore, without the voluntary preterition of the surviving spouse.
In this connection the commentator above quoted, says:
“If the law does not expressly authorize the right of the spouse in the intestate succession when he comes in with legal descendants or ascendants or natural children, equity demands that it he granted *517him, and the nature of the legítima system emphatically requires it. For the law to impose the legítima as an obligation upon the owner of the property when he makes his will and deny it when, because there is no will, it is the law itself which distributes the inheritance arbitrarily, is an inexplicable contradiction. The spouse does not lose his legal portion (legítima) 'in the testamentary succession, although he be disinherited or eliminated without any cause either certain or legal. If he is denied that right in the intestate succession, it ceases to be a legal portion (legítima), as defined by article 806 (sec. 794 of the Revised Civil Code), because it remains in the power of his predecessor' in interest to say whether or not it exists; it is true that his express will to the contrary cannot prevail, but his tacit or implied will would prevail, because by not executing a will the other spouse' would be disinherited. ’ ’
No doubt for tlie reasons set forth, it has been a practice generally observed to recognize the surviving spouse as entitled to the same share in the testamentary succession as in the legítima or intestate succession, when he comes in with descendants and ascendants to inherit from his consort, and this practice is recognized by the General Directorate of Eegistries of Spain in its decision of June 14, 1897, where it is invoked as authority for the admission to record of a partition of property wherein the usufructuary share of the widower was fixed at an amount equal to that corresponding to each of the children as the legitimate portion of the mother who died intestate.
The objection has been raised that the provisions of article 953 of the Spanish Civil Code in establishing that in case of the existence of brothers or sisters or their children, the widow or widower would have the right to share with them one-half of the inheritance in usufruct, as provided in article 837 of the said Code, without recognizing any right in the widower, in- case of descendants or ascendants, clearly show that in such a case the rights of succession should be denied; but to this objection we reply, without admitting the force of *518the contention, that the Revised Civil Code in fixing the rights of the widower in section 7, chapter 2, title 3, book 3, includes both testate and intestate successions, and section 4, chapter 4, of the same book and title, treats of the intestate succession of collaterals and spouses, in reproducing the same provisions as those contained in the Spanish Civil Code, repealed article 953, and it was inoperative until the Act of March 9, 1905, went into effect, which shows that the Legislature considered that the same rights should be granted the widower in the testate succession as in the intestate succession, not only when there are brothers and sisters of the deceased and their children, but also when there are descendants and ascendants thereof.
And, finally, we maintain that the rights granted the widower in the testate succession by the Act of March 9, 1905, although not set forth expressly in the Revised Civil Code in treating of the intestate succession, must be considered as virtually admitted, because natural justice as well as the general principle of law and accepted usage and custom so require; and in reaching this conclusion we follow the provisions of section 7 of the Civil Code which reads:
“’When there is no statute applicable to the case at issue, the court shall decide in accordance with equity, which means that natural justice, as embodied in the general principles of jurisprudence and in accepted and established usages and customs, shall be taken into consideration.”
In view of the foregoing reasons, the judgment rendered by the District Court of Humacao, on August 27 of last year, should be affirmed.