Opinion deliveréd' by
Me. Justice Audreyin which Mr. Justice Wolf concurs.
The heirs of José Joaquín Alvarez made an extrajudicial partition of the estate left by Alvarez at his death.' The minor heirs Ramón and Rafael Diaz Alvarez were represented in the partition by their guardian, Isidro Alvarez Santiago, who is also an heir, after he had obtained the authorization of the District Court of Humacao to intervene in the partition. The deed of partition having been submitted to and approved by the district court, it was presented in the Registry oh Humacao, in which the property awarded to the minors and later the property awarded to other heirs were recorded; . but when the heirs Eloy and Eugenio Alvarez Santiago subsequently sought to record the property awarded to them in the partition, the registrar refused to record the same, assigning the incurable defect that said minors had been represented by a guardian who, being also an heir, had interests opposed to those of the minors, and as section 230 of the Civil Code provides that whenever the father or the mother has interests opposed to those of their unemancipated children, the district court shall appoint for the latter a person to defend their interests, who shall represent them in or out .of court, it must be understood that such provision applies to a guardian also, for it would be absurd, in view *345qf the mandatory nature of the statute, to grant to the guardian what is denied to the father or mother; and it can not be successfully contended in this case that the guardian was authorized by the District Court of Humacao to represent the said minors in the partition of the estate, because such authorization is repugnant to the said section according to the decision of this court'of July 20, 1910, in the ease of the Estate of Alvarez v. Registrar of Property, 16 P. R. R. 572.
The mere fact that the guardian may be also an heir is mo ground, in my opinion, for concluding that he has interests -opposed to those of the minors whom he represented and that for that reason the deed of partition should be refused admission to record. It is true that the decision of this court •cited by the registrar holds that an heir can not represent another minor heir in the partition of an estate because he has an interest opposed to that of his ward, for naturally each heir will seek to secure the greatest benefit for himself in the partition, and that the Directorate of Registries of Spain, in its decision of December 20, 1883, held similarly but without stating its reasons. However, if we. consider the letter and spirit of the prohibition placed upon the father ■or mother by section 230 of the Civil Code, we must conclude that it is not applicable to heirs who represent other heirs because the conflicting interests which the legislators had in mind does not exist between them.'
Under our statutes the surviving spouse manifestly has an interest in the estate of the other spouse which is opposed to that of the unemancipated minor children, for as the survivor’s share of the community property must be deducted from the estate and allotted to him as full owner, the greater such share the less will be the property to be divided among the heirs who, therefore, have a common interest opposed to that of the surviving spouse; for which reason the legislators, bearing in mind that the father or mother was a creditor of the estate .and also a representative of the minor heirs and debtors, prohibited the former from representing *346the latter. Such conflict of interests of creditor and debtor-does not exist between coheirs, who, on the contrary, have-a common interest, and we fail to see that the said statute should be made applicable to them by analogy.
Nor do we believe that the heir who represents other minor heirs is in a position to derive the greatest possible-benefit from the partition, for as the property is appraised' by experts or by the heirs themselves, each one of them will receive necessarily his proportionate share of the estate as provided by law.
The decision appealed from should be reversed and the record ordered.
Reversed.
Mr. Chief Justice Hernández concurred in the judgment- justices del Toro and Hutchison dissented.