CONCURRING OPINION OP
MR. CHIEE JUSTICE HERNANDEZ AND MR. JUSTICE AUDREY.By a judicial decision of February 18, 1909, the intestate heirs of Ramón Arandes were decreed to be his mother, Clara Virella, and also his widow, Estebanía Báez, of an usufruc-tuary estate. Subsequently the mother and widow made a partition of the property inherited.
The complaint which originated this case prays for the annulment of the declaration of heirship as well as of the partition of the property, alleging that the widow had no right to an usufructuary estate jointly with the ancestor and that, therefore, the partition of the property was made with a person who was erroneously considered an usufruc-tuary heir.
The lower court sustained the prayer of the complaint in the judgment appealed from.
We are of the opinion that the plaintiff has no cause of action because the widow, Estebanía Báez, had a right to an usufructuary estate in the property of her husband, Ra-món Arandes, who died intestate, and in support of our opinion we refer to the same reasons stated in the dissenting opinion handed down when a majority of this court held to the contrary on June 15, 1910, in the case of Julbe v. Guzmán, 16 P. R. R., 502, 518.
But, on the hypothesis that Estebanía Báez could not be considered to have any hereditary right in the intestate inheritance of Ramón Arandes and that she was not his usufruc-*374tuary heir, we are of the opinion that, in view of the special circumstances of this case, she could not be compelled td return what she received as an usufructuary estate. Under the foregoing hypothesis we concur in the reasoning of the opinion which is the basis of the judgment rendered by this court to-day.
Whether Estebanía Báez has or has not a right to an usu-fructuary estate in the intestate inheritance of her husband, Bamón Arandes, the judgment appealed from should be reversed.