dissenting.
■ I conceive in this case a situation in which the adopted child receives the entire inheritance, as concluded by the distinguished, brother, Mr. Justice Belaval, in an opinion in which I concur. I conceive that the inheritance could correspond in its entirety to the predecessor’s mother, as concluded by the trial court based on our authorities. It would not displease me if it were divided between the adopted child and the.mother, which under the circumstances of this case Was in fact-for the enjoyment of the predecessor’s brothers, but I fail to find a provision of law which in my opinion would permit such partition.
Section 132 of the Civil Code (1930 ed.), which was in force until May 13, 1947, provided:
“Adoption shall in no case injure the rights belonging to forced heirs, which shall remain as though the adoption had not taken place.”'
Section 133 until that date also provided:
“The person adopted shall enjoy in the family of the adopter the rights and duties and consideration of a legitimate child, with the exception noted in the preceding section.” (Italics ours.)
*247There is not the least doubt that the protection whigjh § § 132 and 133 afforded to the forced heirs in connection with the adopted child covered the testate forced heir as well as the intestate.
This Court delved into this question in the first and second cases of Sosa v. Sosa, 64 P.R.R. 732 (1945), and 66 P.R.R. 573 (1946), and between those cases, in Ex parte Lugo, 64 P.R.R. 826 (1945). The two Sosa cases are not applicable directly to the case at bar, since they involved a testate succession, and, also, the adopted child concurred with the natural descendants, not with ascendants. Being a testate succession, in those cases the forced legal portion of the natural children who were forced heirs only constituted part of the testate inheritance, and a share in the inheritance could be recognized to the adopted child without violating § 132, without injuring the rights of the forced heirs.
The case directly in point is that of Lugo in which, as here, the inheritance was intestate, and, as here, the adopted daughter concurred with the ascendant mother and with the widow in the widow’s usufruct, a thing which does not affect.
This being an intestate succession, the nearest of kin excludes the most remote — § 884 of the Civil Code — but the degree which is not excluded inherits in the entire inheritance and not on the basis of partial forced legal portions, as in the case of the testate succession.
That is why in the Lugo case in which the Court in full concurred, we gave nothing to the adopted daughter and gave everything to the mother, subject in that case to the widow’s usufruct, because no share could be recognized to' the adopted daughter in that intestate succession in which there are no partial legal portions, without affecting the right of that mother as forced heir to the entire inheritance. So far the trial court decided properly according to those authorities.
I believe that the situation created by our decisions in the two Sosa cases left the problem of the rights of adopted chil*248dren under § § 132 and 133, as they stood at that time, in an area of great uncertainty by a divided Court. That is why I agree with my brother, Mr. Justice Belaval, that Act No. 353 of May 13, 1947, enacted by the Legislative Assembly immediately following our second decision in Sosa recommending legislative action, and which repealed § 132 and amended § 133, had the effect of a declaration of the lawmaker as to which were the rights of the adopted child. I therefore believe that that Act was applicable to the case at bar even though the predecessor died before its enactment, because it was already in force when this action was decided. If this interpretation of Act No. 353 is not accepted, it would then be proper, on the basis of the Lugo case, to award the inheritance in its entirety to the mother, but I am unable to find any statutory precept or decision of this Court which would permit its partition, since the succession, as I have •said, is intestate.