delivered the opinion of the court.
In the year 1903 Miguel Criado y Bias died testate leaving forced heirs and. property. The twelfth clause of his will reads as follows:
“He appoints as bis testaméntary executors, auditors, partitioned and commissioners Ms brother, Manuel Antonio Criado, principally as regards Ms property in Spain; Pedro José Alvarado, a resident of the ward of Bauta, Barros, Porto Rico, and Rosa Rodríguez, a resident of the ward of Hato Puerco Arriba, Juana Diaz; the three jointly and in solidum, with authority to take possession of his property, liquidate accounts, settle balances, represent the estate in or out of court, withdraw and create deposits, charges and balances of accounts current, sell property if necessary for the settlement of the estate itself and perform all the transactions of the same extra-judicially; for he absolutely prohibits any recourse to the courts unless it should be strictly indispensable, with an extension of the legal period of the executorship for one year if they should, find it necessary.”
Oil April 6, 1905, one of the executors, Pedro José Alvarado, acting as such alone and without the intervention of the forced heirs, who were minors at that time, and without the authorization of the court, conveyed four rural properties to the defendants for $5,261.08 in payment of a certain debt which the testator had contracted with them during his life.
The plaintiffs allege that the executor had no authority to make the said conveyance under such conditions. The defendants contend that he had. The court decided in favor of the defendant's and thereupon the plaintiffs took the present appeal.
■ Admitting that by virtue of the clause of the will transcribed the testator authorized his executors to convey property in payment of debts, nevertheless we are of the opinion that in the execution of their trust the said executors could not disregard the forced heirs, who were then the sole owners of the estate, and, the heirs being minors, the conveyance *310could not be made validly, without the authorization of the court.
"When the testator died and when the property was conveyed the Revised Civil Code was in force in this Island, and section 875 of the said'code provides that “Executors of wills shall have all the powers expressly conferred upon them by the testator and which are not contrary to law.”
The testator did not expressly authorize his executors to disregard his forced heirs, but it is contended that, having been authorized generally to sell property, without reference to the heirs, they had full power to act severally, as one of them did in this case. We hold that if the said clause of the will be interpreted in this sense, as it has been interpreted, by the defendants and by the trial court, then the authority conferred upon the executors would be contrary to the law and therefore void.
. While the inheritance remains vacant because the heirs designated by law have not accepted it, the personality of the decedent is presumed to exist. Judgment of the Supreme ’ Court of Spain of June 8, 1861. The application of that rule in all its force to all cases is what, in our opinion, produces the diversity of opinion as regards the powers of executors in cases of inheritances which are not vacant but have been. accepted by the-heirs. It is understood that when there are no heirs the executor may act alone; but when there are heirs who, pursuant to section 669 of the Revised Civil Code, “succeed the deceased in all his rights and obligations by the mere fact of his death,” they cannot be disregarded. To hold that a testator can order that after his death a person who is not one of the heirs may sell real property belonging to his estate without the intervention of his forced heirs, whether they be adults or minorSj would be to destroy the entire system established by the Civil Code, especially by the general provisions of sections 664 a to 669 thereof.
According to the jurisprudence of the Supreme Court of Spain, ‘ ‘ executors have the character of agents of the testator *311and not of tlie heirs” (78 Civil Jurisprudence, 26) and should he governed in the discharge of their trust by < the conditions of the will “in everything which is not particularly regulated.” 100 Civil Jurisprudence, 391. But the sale of prop-: erty of minors is particularly regulated by law; therefore in a case where there are minor heirs, even if the executor were expressly authorized by the testator to sell real property for the payment of debts, in order to mate such sale validly he would have to comply with the rules prescribed by law for the sale of property of minors.
If we study the old laws we shall find, for example, that Law 62, Title 18, Partida 3, regulates, among others, the case of the sale of a testator’s property for the payment of his debts when the testator had conferred upon the executor the power to sell. The proceeding prescribed is not the same as that established by Law 60 of the same title and partida for the sale of property of minors, but it was held that the two laws could be harmonized, the executor complying with the requirements prescribed by the law for the sale of property of minors where there were minors.. See I Escriche, Law Dictionary, 395, and III Spanish Codes Ann. 218, 219. .
.“Even when said executors,” said the Supreme Court of Spain in its judgment of October 22, 1857, “have the character of arbitrators and amicable compounders, they cannot convey property of the estate without making an inventory, especially when there are forced heirs and minors.” And it went on to say “that executors cannot alienate the property of minors without showing necessity or utility therefor and without the intervention of the guardian and the authorization of the court, which formalities cannot be dispensed with however ample the power may be.” 2 Civil Jurisprudence, 406, 407.
In our opinion section 875 of the Revised Civil Code, which is the same as article 901 of the old Civil Code, did not change materially the provision of the former laws in regard to executors. In the'note to article 901 of the Spanish *312Civil Code, p. 284 of Yol. Ill of his Commentaries, Falcon says:
“It proceeds from article 902 of the said proposed law (that o'f 1882) in conformity with the first part of article 728 of the proposed law of 1851. Really the doctrine proceeds from Law 32, Title 9, Partida 6, which in tnrn was taken from Law 55, Book 31, of the Digest.”
There is an error in the citation of the Law of Partidas. Instead of Title 9 it should he Title 10, which treats of execu-toribus textam. • See IV Spanish Codes, 163.
Formerly and now the executor was and is considered the agent of the testator and not of the heirs. Formerly, as at present, it was the will of the testator which should he complied with; but formerly and now there existed and exists the principle of limitation that what was directed by ,the testator tó be done and what was or is done by the executor should not be contrary to law. Paramount to the individual is society, which regulates his actions by means of laws enacted by bodies specially created for that purpose.
The Spanish commentators are not in harmony regarding the matter. Manresa’s opinion seems to incline to the authority of the executor to sell property when so authorized by the testator regardless of the heirs. 6 Manresa, Civil Code, 752 et seq. Galindo and Escosura sustain the same theory. 2 Galindo and- Escosura, Mortgage Legislation, 75 et seq. And also Sánchez Román. Sánchez Román, Civil Law, 1425. On the other hand, Scaevola concludes, and correctly we think, that “if the parents themselves cannot alienate the property of their children which they manage and use, they could hardly authorize other persons, such as executors, to sell property of the estate in whose conveyance a minor heir is interested. Therefore, such sale must be made with the authorization of the court.” 15 Scaevola, Civil Code, 480.
Nor are the decisions of the General .Directorate of Registries in accord, for while some favor the theory maintained by the defendants and by the trial court, others uphold the *313■contention of the appellants. In our opinion the reasoning ■of the latter better harmonizes all the provisions of the code, inasmuch as in recognizing the powers of the testator and the executor it also recognizes the rights of the heirs, whether adults or minors, thus applying wholly the idea of the legislator in the matter. We will cite only the decision of May 30, 1895. Its first conclusion reads as follows:
“The deed of sale presented in the registry for record was executed by an executor who, although empowered to sell Under the will, acted without the lawfully required concurrence of the forced heir who succeeded the testator and who, as it appears from the record, was also absent, for these reasons the refusal to record the deed being justified; and the executor could not claim -support under the provision of article 901 of the Civil Code only because it provides that executors shall have the powers conferred upon them by the testator; for the same article establishes the express limitation that the powers must not be contrary to law, and as the law, in its relation to the case under consideration, recognizes in the forced heir a right prior to and independent of any will, whatever in the will opposes, limits, contradicts or adversely affects that recognized right cannot prevail without his intervention in the manner provided for according to the case.” 3 Jurisprudence, Civil Code, by V. A. M. 161.
The decision of this court in the ease of Martínez et al. v. Registrar of Property, 15 P. R. R. 66, does not establish jurisdiction, as it was rendered in an administrative appeal, and its reasonings being submitted to the test of this case, we are compelled, for the reasons already stated, to refrain -from following them.
Finally, we wish to say that the opinion rendered by the Supreme Court of the United States in the case of Longpré v. Díaz, 237 U. S. 512, cited and followed by us in the case of Del Rosario et al. v. Rucabado et al., 23 P. R. R. 438, has greatly influenced us in the rendition of this decision. Although the cases are not entirely similar, after an examination of the facts and the law in this case in the light of the ■principles established by the Supreme Court in the case of Longpré, supra, it requires no effort to observe that it is *314impossible to reach any other conclusion than that executor Alvarado- could not sell- the property of the minor plaintiffs without complying with the general requirements of the law regarding the sale of property belonging to minors.
As to the question of prescription, it is sufficient -to invoke the doctrine laid down by the Supreme Court in the said case of Longpré, supra, and by this court in the cases of Oliver et al. v. Oliver, 23 P. R. R. 168, and Succession of Suro v. Prado et al., 21 P. R. R. 227, in order to conclude that -the prescription period of four years to which the defendants refer is not applicable to this case.
For the foregoing reasons the judgment appealed from should be reversed and the case remanded to the district court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Justices Wolf and Hutchison concurred, the former “in the judgment.” Chief Justice Hernández and Justice Aldrey dissented.