DISSENTING OPINION OE
Mr. JUSTICE TODD, Jr.The case of adopted children has come hack from its pilgrimage to Boston. There a precedent1 was established and here judicial legislation was enacted of extraordinary character and scope.
The reasons for my dissent in this ease have been set forth in my opinion in Sosa v. Sosa, 64 P.R.R. 732, and in Ex parte Lugo, 64 P.R.R. 826, and I see no need of repeating or adding anything to what has already been said therein. But I do wish to express my full disagreement to the manner in which the ease of Ex parte Lugo; Ortíz, supra, has been reversed. The majority admits that everything contained in its opinion in connection with said case is “obiter dictum”. Nevertheless, it further states that the case of Lugo was “erroneously decided.”2 As for myself I ratify my opinion in said ease and believe that said opinion as well as that of Mr. Justice De Jesús, on other grounds, successfully refute the arguments presented by the majority in the present case.
I dissent from the opinion of the majority also, because although the courts, in construing statutes, may, as stated by Judge Holmes, legislate “ interstitially”, in my opinion they should refrain from so doing whenever the statute is so defective as to require for its construction and application judicial legislation every time a case comes up on said question. *588And sueli is the case with the adopted children in Puerto Rico in view of the decision that they aré, in effect, legitimate children or at least are regarded as their equals. In so far as their hereditary portion is concerned, if the adopted child is like a legitimate child, said portion shbiild he uniform át all instances. But such is not the case according to the opinion of the majority. It depends on whether the forced heirs are prejudiced and in order not to prejudice them the courts, and not the law, then come into play to determine in each case the amount of said portion. We have reached the maximum as to legislating judicially.
Due to the changes that take place in this court — recently quite often 3 — and the possibility of different opinions in the future as to the disputed and uncertain hereditary rights of adopted children, in the testate as well as in the intestate succession, it is my opinion that the Legislature of Puerto Rico should amend all those Sections of our code relating to adopted children in order to clearly define those rights. Otherwise, the uncertainty shall prevail and the courts shall continue legislating.
The Circuit Court remanded the case granting a new hearing notwithstanding the fact that part of the judgment appealed from- was unanimous and that said concession might affect vested rights.
In my opinion this conclusion based on an obiter, constitutes, with due respect, a greater obiter.
After the opinion of the majority was 'delivered a Vacancy ttiok place. Another one may occur. Upon filling those two vacancies if tlie judges appointed should agree with iny opinion in another casé oñ hereditary lights oí adopten children, the doctrine laid down by the majority would be reversed.