OriNiON ou
Me. Justice Todd, Jr.,in which Mr. Chief Justice Travieso concurs.
In Sosa v. Sosa, decided April 10, 1945, ante, p. 732, the judgment rendered by the District Court of San Juan was affirmed, due to the fact that the four judges of this court were equally divided in opinion. In the opinion rendered by the undersigned judge in which Mr. Chief Justice Travieso concurred, we reached the conclusion that the adopted son lias hereditary rights in the intestate succession of the adopter only in the place'to which he is entitled without injuring the hereditary rights of the legitimate heirs who are forced heirs as well, that is, the legitimate children and descendants-, the ascendants, the acknowledged natural children of the adopter, and without injuring the usufructuary quota of the widower.
In the case at bar there is involved the intestate succession of Khirique Alfonso Gordils Lugo composed of his mother and his widow, having also left an adopted daughter. The mother moved the lower court to declare her and the widow as sole and universal heirs of the deceased. The widow and the adopted daughter objected and the court after dismissing the mother’s petition, declared as heirs the mother, the adopted daughter, and the widow, “the latter as to the usufructuary quota fixed by law, that is, a third of the estate left, which shall be taken out of the one-half of free disposal. The ascendant, mother of the deceased, shall be entitled to her legal portion of one-half of the inheritance.
*828“As to tlie adopted daughter, she shall receive the free portion which remains from the inheritance after fixing, as we have done, the quota of the widow and of the mother re-spec Lively, and the adopted daughter shall of course have two-thirds of it, and the remaining third in naked ownership while the surviving spouse enjoys the usufruct allotted to her. .
Since, in our opinion, an adopted child is not a forced heir in the testate succession, neither is he a forced heir in the intestate succession.1 For this reason, when construing the scope of § 333 of the Civil Code, we have placed the adopted child in the intestate succession after the legitimate heirs who are forced heirs, since that is the only way in which a certain portion may be allotted to them in the inheritance without prejudice to the rights of the former. The intestate succession is not governed by the disposition of the adopter expressed in the will and, therefore, he has to comply with the provisions of the Code which indicate who shall inherit, the order of succession, and the portion to which each is entitled. When the deceased leaves no children in the intestate succession the ascendants shall be the heirs, since § 898 of the Civil Code provides that “In default of lawful or acknowledged illegitimate issue and their issue, ancestors shall inherit from the decedent to the exclusion of collaterals.”2 When applying this Section one must take *829into account the provisions of § 763 to the effect that “Should the testator not leave any descendants, but only ascendants, lite surviving spouse shall have a right to the third of the estate in usufruct,” and according to § 761 its provisions “shall apply in like manner to the intestate as well as to the testate succession.”
It follows, therefore, that by express provision of law, in *830default of legitimate children, the mother of the deceased in the case at bar is entitled to be declared heir of his estate, allotting of course to the widow one-third thereof in usu-fruct. In view of this, the adopted daughter is not entitled to be declared intestate heir of the adopter.
The judgment rendered by the lower court must be reversed and another rendered instead declaring the appellant María Sabá Lugo and Lugo, mother of the deceased, and Rosalia Ortiz his widow, sole heirs of Enrique Alfonso Gor-dils and Lugo, in accordance with the terms of this opinion, with costs but without including attorney’s fees.
Mr. Justice De Jesús and .Mr. Justice Snyder agree with this conclusion on grounds which they will set forth in a concurring opinion.A forced heir is always a legitimate lieir but not all the legitimate heirs have the statute of forced heirs. “Forced heirs are also called legal heirs (legitimarios),” 6 Manresa 230, and on page 241: “The legitime, like the intestate succession, has its origin in the law” and further “.legal heirs (legitimarios) are called to the succession exclusively by law, even against the will of the testator, for which reason the rules to succeed in the legitime must evidently be the same as those which govern the só-called legal or intestate succession.” (Italics ours.)
Although this question is not involved in this case, since there are no acknowledged legitimate children in this succession, we deem it advisable to copy a commentary set forth by Mr. Muñoz Morales on this Section in his Annotations to the Civil Code of Puerto Rico (p. 340), as follows:
“Beginning with Section 898, which is an exact copy of Section 909 of the Revised Code which substituted Section 935 of the Spanish Civil Code, *829and which is in harmony with Section 894 of the preceding Article, we find the statement that ascendants succeed the deceased in default of legitimate or acknowledged illegitimate children and their descendants; that is, that illegitimate children, together with the legitimate ones, are in the first place, ahead of the ascendants and excluding the collaterals.
“This conclusion could be supported while Section 913 of the Code of 1902 was in force; but ever since the amendment of 1905 a doubt arises when Section 795 (now Section 73(5) was reformed, whereby the order in the testate succession was re-established by placing the natural children after the legitimate ascendants in the line of forced heirs; and when Section 15 of the same Act of 1905 re-establishing Section 841 of the Spanish Civil Code (now Section 768 of P. R.) fixes the right of acknowledged natural children appearing together with legitimate ascendants, by alloting a quota which shall be taken from the disposable portion.
“But the doubt is dissipated when the Act of 1911 by its Section 3 expressly repeals Section 913 of the Code of 1902 and in lieu thereof it reinstates in Article Second and in the intestate succession, the doctrine of Sections 939 to 945 of the Spanish Civil Code, now embodied in Section ,908, especially the fourth subdivision thereof, in connection with Section 768 of our Code in force.
“In view of those amendments and comparing them with Sections 768 and 902 of the present Code, a contradiction manifestly arises, and the provisions of Section 898 cannot be supported today in so far as they prescribo that the acknowledged illegitimate children are entitled to preference over the legitimate ascendants, the latter standing in a subordinate place with respect to the former.
“Let us now consider this contradiction: Section 898 states briefly that" 'when there exist acknowledged illegitimate children and their descendants, the ascendants shall not inherit'. On the other hand, the fourth paragraph of Section 902 provides that 'when acknowledged natural children concur with legitimate descendants or ascendants they shall only inherit the portion fixed by Sections 767 and 768’.
“Since Section 902 contains an amendment which .is later than the one embodied in Section 898, the repeal of the latter in so far as it conflicts with the former is manifest, and, consequently, it must be maintained that the rule of Section 935 of the Spanish Civil Code was impliedly left in force and that such was the intention of the Legislature of Puerto Rico when it enacted the Act of March 9 of 1911.” (Italics ours.)