*721CONCURRING OPINION OP
MR. JUSTICE HUTCHISON.From January 1 to July 31, 1915, some three hundred and eighty matters were disposed of by this court. Among these was an appeal from the judgment of a district court, dismissing this suit after having sustained the demurrer to' the complaint for want of facts sufficient to constitute a, cause of action. That judgment was reversed on July 23, 1915. 23 P. R. R. 28.
The third assignment of error on that appeal specified “Failure to apply the judgment of this court in the case of Esteras v. Arroyo, 16 P. R. R. 689, and its antecedent of the Supreme Court of the United States, the case of Garzot v. Rubio, 209 U. S. 303.”
This court was confronted with the alternative of repudiating the doctrine of Esteras v. Arroyo or of reversing the district court either upon the authority of that case or upon some other ground. The conclusion reached in Esteras v. Arroyo was supposed to be the necessary consequence of Garzot v. Rubio, and at a glance the pertinent portion of the opinion of the Supreme Court of the United States in that case, if read without analysis or reference to the context, would appear to support such an inference.
The result in the case then before this court seemed inevitable, and the grounds upon which the decision was to be based became largely a matter of choice within a somewhat restricted and unsatisfactory range of selection. Thus, the case did not receive due consideration on its merits. The circumstances, extenuating or otherwise, that contributed to this result need not be enumerated. An occasional error is unavoidable and, when discovered, should be corrected promptly. Two wrongs never make a right.
On the second appeal the judgment of the district court was affirmed by a divided court. An opinion filed by the Chief Justice represents the views of two out of the three members constituting a majority, and the grounds upon which the other *722two members dissented likewise appear from the dissenting opinion filed by Mr. Justice Wolf. No reasons were assigned at the time for the action of the writer, who concurred in the judgment. A motion for a rehearing has been granted and the purpose of this memorandum is to give the parties an outline of the considerations upon which such deciding-vote was based.
The case of Esteras v. Arroyo, without so much as assigning a reason beyond a bare reference to sections 19 and 23 of the Law of Special Legal Proceedings and to the case of Garzot v. Rubio, supra, absolutely overrules the doctrine of Solá v. Registrar of Property, 8 P. R. R. 205, which for more than five years stood unchallenged as the solemn judgment of this court.
The case last mentioned is deep-rooted in the fertile soil of Spanish jurisprudence, and the statutory provisions upon which the opinion therein is based are as firmly embedded in our present Code of Civil Procedure, Title Y — “Of the Place of Trial of Civil Actions” — as they ever were in the Spanish code. The legislature is presumed to have known the law and the status thereof at the time it enacted sections 76 and 77 of the present code, and in taking them from the Spanish Code of Civil Procedure it adopted with them the established practice sanctioned by the interpretation of the former law of the Spanish courts.
That in this particular instance the Legislative Assembly understood the matter it had in hand is self-evident. For unless the Spanish practice under these sections is brought with them into the new code, they add nothing to the other sections of the same title copied from the Idaho, code, and in so including them our lawmakers did a vain and useless thing. And we have no reason to assume that the grouping of these two sections -with other appropriate provisions governing the place of trial was a mere fortuitous circumstance. On the contrary, and aside from any presumption of law, -.it was plainly the most natural, proper, and logical thing to *723do. Translated as near as may be into terms of American law, the principle inyolved is not a matter of jurisdiction in its ordinary sense, but of modern municipal venue. Bayron v. García, 17 P. R. R. 512; Gómez v. Toro, 23 P. R. R. 596; 40 Cyc. pp. 23-43.
However much confused by the use, unfortunate or otherwise, in the beginning of words which have come to have a fixed and definite meaning in each language, at variance to a certain extent with that of etymological counterparts in the other, and however great the resulting difficulty of mutual translation into the technical legal terminology of the two systems of jurisprudence, yet the fundamental difference between jurisdiction in its true sense and the proper place of trial as between local courts of co-ordinate' jurisdiction, by whatever name it be known and designated, exists in both and ought to control in the final disposition of the instant case.
The two opinions in the same case can not be reconciled. What was said on the first appeal need not be repeated here. That opinion, at least in the Spanish version, speaks for itself. If the doctrine then announced is sound, section 164 of the Civil Code confers exclusive jurisdiction upon .the district of the domicile, and there can be no question of venue, of procedure, of' just title, of good faith, or of ordinary prescription. The decree of any other court is an absolute nullity and cannot give color of title. But that decision was radically wrong because it proceeded upon the tacit assumption that by reason of the Garzot case this court had no alternative other than to follow to a logical conclusion the doctrine already announced in Esteras v. Arroyo. The omission in the opinion of all reference to those cases merely indicates the reluctance of the court to follow the same when any other more plausible ground could be found.
The third assignment of error, however, shows the theory of the action and of the appeal.
The question of dates is not important.
*724The hypothesis of an implied repeal necessarily hinges npon the very doubtful proposition that section 164 of the Civil Code lays down an absolute and inflexible principle of substantive law, not only as to the primary matter of judicial authorization, but also as to the secondary consideration of what particular district court should grant such relief. The mere statement of the proposition does not establish the soundness thereof. Repeals by' implication are not favored. The premise excludes the idea of a rule of procedure and, in so far as assumed without apparent justification, simply begs the question.
The ruling of the district judge sustaining the demurrer and the judgment below dismissing the action should have been affirmed on the first appeal. This not having’ been done, the error should have been freely confessed when the case came up a second time. There is no' middle ground. The traditional “law of the case” can never justify a deliberate sacrifice of plain substantial justice.
The judgment of this court upon the first appeal was not a final judgment. Great Western Tel. Co. v. Burnham, 162 U. S. 339.
“In the1 absence of statute, the phrase ‘law of the case,’ as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided — not a limit to their power.” Messenger v. Anderson, 225 U. S. 436, and cases cited.
If there be anything at all in the case of Garzot v. Rubio that can be construed to support the conclusion reached in Esteras v. Arroyo, it is the use of the word “exclusive” in connection not only with the immediate context but with what precedes and what follows the two paragraphs of the opinion in which the expression occurs and which read as fofows:
“By the1 Porto Rican Code of Civil Procedure (article 62, paragraph 5), power to administer estates, both testamentary and intestate, i§ vested in the judge of the last place of residence of the de*725ceased.' That the power thus conferred is exclusive is shown by the text of the same article and by the comprehensive grant of authority embraced in the provisions of the code which follow, relating, to the' settlement of both testamentary and' intestate successions. That it embraces authority to entertain and dispose of all actions, whether real or personal, necessarily incidental to the accomplishment of the poweis granted over estates, is shown by the provisions of article 1001 of the same code. The similarity between the provisions of the Louisiana code as to the community and the analogy which obtains between the provisions of the Louisiana Code of Practice and the Code of Civil Procedure of Porto Rico, concerning the power' of the judge' or court charged with the administration of estates, whether testamentary or interstate, especially where questions concerning the liquidation of a community, which has existed between husband and wife, is concerned, make pertinent the observations of the Supreme Court of Louisiana in Lawson et ux. v. Ripley, 17 Louisiana, 238, 248, where it was said:
“ ‘The succession of the husband, is therefore so far connected with the community as to form together, at the time of his death, an entire mass called his estate, which is not only liable for the payment of the common debts, but also for the portion of the wife or her heirs to the residue, if they have not renounced. The widow or her representatives have consequently such an interest in the mass of the estate or succession of the husband, with regard to whom no distinction is made1 between his separate property and that of the community until the net proceeds or amount of the acquets and gains are ascertained, that their assistance at the inventory and their concurrence at all the proceedings relative thereto, which are to be carried on contradictorily with them," are generally required. All such proceedings take place before the court of probates who, according to law, has exclusive jurisdiction of all the matters concerning the estate, particularly in those eases where it is in a course of administration; and it does not occur to us that separate proceedings can properly be had in relation to the community, until after the settlement of the husband’s estate and the payment of the common debts, and division of the residue of the acquets and gains is to be made between the heirs of the deceased and the surviving spouse; and even then the affairs of the husband’s estate, administered under the control and supervision of the court of probates, are to be inquired into and sometimes fully investigated.’ ”
Going back to what precedes the portion of the opinion *726just quoted, the Supreme court, after determining that the local Federal court was without authority to make the decree below, for want of necessary parties, and that for the same reason the ease on appeal could not be decided on its merits, proceeds to consider whether “in view of the nature and the character of the relief sought by the bill” the case should be remanded for a new trial or with directions to dismiss the bill “because of an inherent want of jurisdiction to give the relief which the bill sought.”
It was “patent on the face of the bill that it but invoked the authority of the court to exercise purely probate jurisdiction by administering and settling- the -estate of Rios, the estate of his son, and that of the mother, and, as an incident thereof, to liquidate the community which had existed between Ríos and his wife. Indeed, such was exactly the substantive relief which the bill as finally amended prayed.”
What was decided,- as well as the pivot upon which the decision turned, is made unmistakably clear by the perfectly plain language that follows:
“As by the bill it is alleged that on the death of the father and brother probate proceedings concerning both estates had been commenced in the proper Porto Rican court, it results that not only did the bill seek to administer the estate through the court below, but it sought also to do so, although the estates were open in the local court and subject to the power and authority of such court. In establishing a, civil government for Porto Rico, Congress, scrupulously regarding the local institutions and laws, by section 33 of the act of April 12, 1900, preserved the local courts, both original and appellate, and recognized their power and authority to deal generally with-all matters of local concern. In creating by the thirty-fourth section of the same act the District Court of the United States for Porto Rico, the jurisdiction and power of that court, we think by the very terms of the act, were clearly fashioned upon and intended to be made, as far as applicable, like unto the jurisdiction exercised by the circuit and district courts of the United States between the several States of the Union. It is true that the jurisdiction of the district court, resulting from citizenship, has been made broader than that conferred upon the circuit and district courts of the United *727States within the States. But this does not tend in any may to establish that it was the purpose of Congress, in creating the District Court of the United States for Porto Rico, to endow that court with an authority not possessed by the courts of the United States (Farrell v. O’Brien, 199 U. S. 89), to exercise purely probate jurisdiction to administer and settle estates in disregard of the authority of the local court as created and defined by law.”
That is both the gist and the rationale of the decision.
The court then proceeds to discuss the scope and extent of the powers vested in the district courts of Porto Rico in probate matters, presumably to the exclusion of other tribunals, as appears from the two paragraphs first above quoted, in each of which the word ‘ ‘ exclusive ’ ’ is employed.
Again:
“Coming to consider the subject from the point of view of the averments as to the nullity of the agreement and the fraudulent simulation of the sales, it is clear that the relief sought in this regard was merely ancillary to the prayer for the liquidation and settlement of the estates. As we take judicial notice of the fact' that the distinctions between law and equity in a technical sense do not obtain in the local law of Porto Rico, and as under that law a court charged with the administration of an estate is one of general as well as probate jurisdiction and has full power over all personal and real actions concerning the estate, it follows that the local court had in the nature of things power to determine, as an incident' to its general and probate authority, whether the estate had been closed by the agreement, and hence to decide whether that agreement was void, and had also jurisdiction and power to determine whether the property which had been transferred to the mother by the agreement yet remained a part of the1 estate, and as an incident to so doing to decide the questions of fraud and simulation which were alleged in the bill. Of course, the general scope of the authority which the court then possessed endowed it with the power to liquidate and settle the community which existed between the husband and wife, as that liquidation was of necessity involved in the settlement of the estate. Speaking on this latter subject in Lawson et ux. v. Ripley, supra, the Supreme Court of Louisiana said (p. 249) :
“ ‘But it is contended that this would be giving to the court of probates the right of trying questions of title. Probate courts *728have certainly no power to try titles to real estate, and to decide directly on the validity of such titles; but as this court has said in the case of Gill v. Phillips et al., 6 Martin N. S. 298, “those courts possess all powers necessary to carry their jurisdiction into effect, and when in the exercise of that jurisdiction questions arise collaterally they must, of necessity, decide them, for if they could not no other court eóüld.” And, “any other construction would present a singular species of judicial power — the right to decree a partition, without the authority to inquire into the grounds on which it should be ordered, or the portions that each of the parties should take. The end would thus be conceded without the means.” Baillo v. Wilson, 5 Martin. N. S. 217. We are satisfied that whenever a question of title to real property and slaves arises collaterally in a court of probates, - and an examination of it becomes necessary in order to give the court the means of arriving at a correct conclusion on matters of which it has jurisdiction, it must take cognizance of such title at least for the purpose of ascertaining which -property belongs to either of the spouses respectively or to the community.’ ”
The only possible bearing of all this upon the question then before the Supreme court is disclosed in the following paragraph:
“True it is that by article 104G of the Porto Rican Code of Civil Procedure the parties interested in an estate which is unsettled and under the dominion of the proper court are given power to terminate the estate by a voluntary agreement between them, and that such may have been the effect of the agreement between the parties here in question if the same was valid. But as the bill charged and the. relief which it asked was based upon the conception that the agreement was void, it follows that the relief which the bill sought could only have proceeded upon the hypothesis that the estate had not been closed, and was yet subject to be administered in the proper court. And that this was the theory of the bill is shown by the prayer that the court appoint a master to liquidate and settle the estates.”
The sum and substance of the whole opinion,' in so far as the question now under consideration is concerned, is that the F.edera! court 1ms no probate jurisdiction; that as between that court and the Insular district courts the prpbate jurisdiction of the latter is exclusive; and that the bill in question in 'effect sought to reopen and to conclude in the *729Federal court a judicial administration winch, although, ostensibly settled by an agreement aheged in the bill to be void, yet which, if tested by the theory of the bill itself, had never been fully administered nor permanently closed in the Insular court.
The opinion, fairly construed, does not indicate that the question of jurisdiction, as between the respective Insular district courts, was in anywise involved or was seriously considered by the court. It is equally clear that in Lawson v. Ripley there was likewise no question as to conflict of jurisdiction between local probate courts. If in the Garzot case the supreme court had intended to determine the matter of jurisdiction as between one Insular district court and another, by a. direct application in Porto Eico of the Louisiana rule, cases in point as to the law in Louisiana are not wanting and 'undoubtedly would have been cited. Perhaps, assuming that the point as a separate and distinct proposition was in the mind of the court, it was taken for granted in the circumstances of the case then under consideration, and arguendo, that the Louisiana doctrine as to the exclusive territorial jurisdiction of' the respective Louisiana probate courts was equally well established in Porto Eico.
But assume, for the sake of argument, that the Supreme court by a stroke of the pen in the Garzot case meant to establish beyond question and for all time the proposition that in no circumstances could any Insular district court other than that of the last place of residence of the deceased proceed with a judicial administration. Certainly in no other instance has the opinion of this court construing any local law been brushed aside and held for naught with so little ceremony. At the time of that decision there was no local rule of real property more firmly fixed, not only by the Insular .courts, but also by those of last resort in Spain, than that arising out of the privilege in ex parte matters of selecting the most convenient court of competent jurisdiction. No one in .this island, lawyer or layman, doubted the existence of *730such a right, which rested upon the uniform interpretation for many years of articles 56 and 57 of the former Code of Civil Procedure, in connection with the saving clause -contained in the opening paragraph of article 63. To hold in the face of that express qualification of the general rule, that subdivision 5 of the article last mentioned confers upon the court of the last place of residence of the deceased a jurisdiction exclusive of all power to act in any other Insular district court to which the parties intereste'd may have applied, would be to destroy hundreds, perhaps thousands, of recorded titles considered flawless by all parties concerned in giving them legal sanction when the stamp of judicial approval was sought, including attorneys, courts, and registrars of property, whose duty it was, each in turn and with .independent judgment, to pass upon the same. That the Supreme Court of the United States, in a case in which the point was never raised, argued, submitted, or involved, by the mere ipse dixit of a single sentence, intended to bring about any shell result would seem to be simply inconceivable. No argument should be required to- show that it had no such purpose. To state the proposition is to refute it.
This is not the only case now on the calendar. These views do not profess to be 'the crystalline product of profound cogitation. They are subihitted for what they are worth. They may be mistaken. If so, they ought to be, and .will be, revised and corrected.
Possibly the judgment of the district court herein should be reversed and in lieu thereof another entered for plaintiff. Perhaps the conclusion reached on the first appeal is correct. The doctrine of Esteras v. Arroyo may be sound at bottom and, if so, it must prevail.
If the entire case be reargued, resubmitted and finally decided on its merits, without regard to precedents save in so far as the same are well grounded in. sound reason and common sense, or else have become an established rule of *731real property, then, whatever the outcome, the immediate object of this memorandum will have been attained.