Sosa v. Sosa Escobar

OpiNxon oi? Mr. Justice Todd, Jr., in which Mr. Chief Justice Travieso concurs. Since I am in disagreement with the rule laid down in Ex parte Ortiz, 42 P.R.R. 339, to the effect that adopted [733] children are forced heirs, which rule was reaffirmed in Bardeguez v. Bardeguez, 48 P.R.R. 692, I am of the opinion that the lower court did not err in dismissing the complaint in this ease. The facts involved herein have been set forth fully in the opinion of Mr. Justice Snyder. As the division of opinion which exists in this court on this matter of importance leaves in effect the rule established in the aforesaid cases until a majority of the court reaffirms or reverses the same, I feel impelled to set forth, in a general way, my views on this matter. An heir has the status of a forced heir not only because § 736 of the Civil Code specifically enumerates those in that category, but because § 735 has previously defined the meaning of legal portion (legítima) to the effect that “it is that part of the property which the testator cannot dispose of because the law has reserved it for specified heirs, called on that account heirs by force of law,” and also because §§ 737 and 738 clearly determine what constitutes the legal portion of children, legitimate descendants, and the parents or ascendants, respectively, and §§ 761 to 764 and §§ 767 to 772 likewise determine the share corresponding to a widower and acknowledged natural children, respectively. “All heirs who are not forced heirs are voluntary heirs: the testator chooses them as he pleases.” 6 Manresa, Civil Code, 630. But in the case at bar we are met with the insurmountable obstacle that no matter how extensive our search, we cannot find anywhere in our Code a legal portion allotted to adopted children in order that they may be considered forced heirs. The fact seems to have been overlooked that if an heir has the status of forced heir, it is precisely because in a testate succession he may claim his legal portion if it has been in any way injured in the will. If one establishes and accepts the premise that our Civil Code does not allow [734] adopted children any share in the inheritance as their legal portion and that it does not include them among those who Under § 736 are forced heirs, where is the basis for saying and holding that in spite of all this, they are forced heirs'? It is stated that this is the meaning and scope which should be given to §§ 132 and 133 of the Civil Code and the intention of the Legislature in adopting them from § 214 of the Civil Code of Louisiana. We do not" agree with this view for various reasons. In the first place, §§ 132 and 133 are not an exact copy of § 214 of Louisiana, inasmuch as the Legislature changed substantially its meaning and added complete phrases which do not appear in the Code of Louisiana. Thus we see that while § 214 only provides, in its pertinent part: “Any person may adopt another as his child, except those illegitimate children whom the law prohibits him from acknowledging; but such adoption shall not interfere with the rights of forced heirs. < ¡ * * * ® “The person adopted shall have all the rights of a legitimate child in the estate of the person adopting him except as above stated. ’ ’; § 132, by way of explaining more clearly the intention of the Legislature, states: “Adoption shall in no case injure the rights belonging to forced heirs, which >shall remain ~as though the adoption had not taken place.” Likewise while said § 214 uses the term estate (“herencia”) our § 133 provides that: “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.) I do not agree with the argument that the word “family” is exactly the same as “estate” or, as was stated in Ex parte Ortiz, supra, that: “In any idea of universal succession, the word ‘family’ might mean almost anything. It probably embodies the idea of such universal succession.” (Italics ours.) [735] When dealing -with a matter of such great importance as the determination of rights of succession, we should not decide a case on the ground that the said word may mean “almost anything” or leave it in the undetermined or uncertain field of 4 ‘probabilities. ’ ’ In the same ease of Ex parte Ortiz, supra, it is stated that it is significant that our Legislature left out of our Civil Code § 177 of the Spanish Civil Code.1 But what is really significant is that said Section was not entirely omitted, since the last sentence thereof, providing that “The person adopted retains all the rights belonging to him in his natural family with the exception of those relating to patria potestas,” was expressly included in § 137 of our Code. What meaning should we attach to this action of the Legislature? According to Ex parte Ortiz, supra, we have the extraordinary situation that the adopted child has the status of a forced heir in his natural family (as he really has) and in addition he is a forced heir in the family of his adopter. He is indeed, under this view, a most privileged forced heir. In my opinion, § 137 is of. the utmost importance in seeking to determine the Legislature’s intention when it enacted $ 133. Commenting on the final provision of § 177 of the Spanish Civil Code, equivalent to our § 137, Seaevola states': “And what shall these rights be? (1) To receive support if the adopter can not furnish it. We have already said that the right of support does not cease when the patria potestas is terminated; this is based on necessity and on blood relationship. (2) To use the surname of the natural family. (3) To receive gifts by acts inter vivos which shall [736] be charged to the legal portion. (4) To succeed by will. (5) To receive betterments. (6) To succeed intestate. (7) To claim the completion of his legitime if the testator left him less than the portion which necessarily belonged to him. (8) To have the property of the deceased spon.se reserved should the survivor marry a second time. (9) To increase the portion of the heir in the cases provided by the Code. (10) To receive inheritance by benefit of inventory or by the right to choose. (11) To exercise tutorship in cases where he is appointed by law, and to form part of the council with respect to the relatives of his natural family.” (Italics orrrs.) 3 Scaevola, Civil Code (3d ed), 449. More concisely, but to the same effect, in his Estudios de Derecho Civil (2d ed.), vol. 5, p. 1106, Sánchez Eomán states: “The person adopted retains all the rights belonging to him in his natural family; such as, support when the adopter is unable to furnish it, the use of the family’s surname as well as all the succession rights in their different phases and in general, all those allowed by the Civil Code attributable to the status of a member of the family except those relating to the patria pot estas, while the adopter exercises the same.” (Italics ours.) We therefore see that the adopted child, pursuant to § 137, retains all his rights in the natural family. Nevertheless, § 133 provides that the adopted child shall have in the family of the adopter “all the rights and duties and consideration of a legitimate child” and it is contended that this is sufficient to hold that among these rights are those of a forced heir in the testate succession of the adopter, because in accordance with § 118, the legitimate child has a right to the legitimate inheritance and consequently the adopted child is also entitled to a “legitime” in the estate of the adopter, I do not accept this conclusion for the reasons which I have set forth as to the failure of our Code to fix a legal portion for the adopted child and also because of its failure to in737 elude him among the forced heirs specified in the code and in addition because, although § 136 provides that the adopter and the adoptee owe each other support, it limits said right by adding “This obligation shall be understood as in no wise injuring the prior right of legitimate children, of illegitimate children and of the ascendants of the adopter to be supported by him.” If § 132 provides that adoption shall in ho case injure the rights belonging to forced heirs, which shall remain as though the adoption had not taken place, and under § 136 the right to support of the adopted child is subordinated to the preferential rights not only of the legitimate children and ascendants of the adopter but also of his illegitimate children in general,2 how can it be maintained that it was the intention of the Legislature, despite the fact that it used the words “legitimate child” in § 133, to make the adopted child a forced heir in the testate succession'? It may be said, and rightly so, that the Legislature had some purpose in using the special language of § 133 (very different from that used in § 214 of Louisiana) and related to 132 (more specific than § 214 of Louisiana). In my opinion, the only logical interpretation is that the rights of the adopted child must be placed in the intestate succession and even there in the place corresponding to him, that is, after those who in the intestate succession are called preferential (who in the testate succession are called forced heirs), or, after the legitimate descendants, ascendants, acknowledged natural children, and without prejudice to the usufruc-tuary share of the widower. A similar conclusion is reached by Sánchez Román in facing the problem presented by the failure of § 177 of the Spanish Civil Code to fix a place for the adopted child in order to make effective his right of succession when the adopting parent agrees in the deed of adop [738] tion to constitute him as an heir. The rights of the forced heirs in the testate succession, the preferential rights in the intestate succession, and the very explicit preference which by reason of the obligation to support is established by § 176 (§ 136 of our Code) make him conclude that: “it is imposible to assume, in good legal logic, that the adopted children, in the only ease where pursuant to Section 177, now under discussion, acquire the right by exception to inherit without a will from the adopter, may and should be preferred to none of those persons, nor to lake together with them in the intestate succession of the adopting parent, since there is no portion or determined quota to that effect, and the former should have the preferential rights to succeed in all the inheritance; the hypothesis of legitimate or legitimated descendants not being impossible, notwithstanding the prohibition contained in subdivision 2 of Section 174 that those who have issue of this kind should not adopt, since such issue may be born after the adoption, inasmuch as the act of adoption is not an impediment to a subsequent marriage. On the other hand, it seems that in order that this conditional and hypothetical right should be effective, which right is acquired under Section 177 by exception by the adopted child to inherit without a will from the adopting parent who agreed in the deed of adoption to constitute him as an heir, the most reasonable thing would be to place his right of succession before the collaterals of all degrees (Sections 946 to 955) without prejudice to the rights of the widower (Section 834 and the related sections), inasmuch as the collaterals do not have the 'status of forced heirs nor the right of support, which only exists by exception among brothers. (Last paragraph of Section 143)” 3 [739] In the former legislation the Spanish Civil Code also did not recognize an adopted child as a forced heir in the testate succession. The Leyes de Partida and the Fuero Real acknowledged in his favor the whole or part of the inheritance in the intestate succession.4 The conclusion I have reached is in accordance with that [740] oí Mr. Muñoz Morales, which he set forth in his Annotations lo the Civil Code of Puerto Eico, volume X, Revista Jurí-dica de la Universidad de Puerto Rico, p. 433, where he says: “Now that our Legislature has chosen to re-establish the old doctrine, we are inclined to side with the declaration of the right as was unconditionally recognized by the Leyes de Partida ...” for those rights referred exclusively to the intestate succession. In commenting on the cases of Ex parte Ortiz and Bardeguez v. Bardeguez, supra, the said author expressly states that “some uncertainty is apparent in Doth decisions as to the absolute hereditary right of adopted children and wo do not know what would he the judgment of the Court in case of ascendants or of children born after adoption,” and that “It would be advisable therefore that certain amendments be made in our Code in order to dissipate these doubts and that adopted children be expressly included as forced heirs, assimilating them to the status of legitimate and legitimated children or acknowledged natural children.” Moreover, he maintains that, according to Ex parte Ortiz, “When, the adopting parent leaves descendants and ascendants, the adopted child is not entitled to inherit from him,” and that “When the adopter dies intestate, being survived by an ascendant (mother, father, grandfather, etc.) the latter excludes the adopted child from the inheritance.” Op. cit., p. 437. Nor these reasons, I am unable to agree with the conclusion that, in enacting §§ 132 and 133 of the'Civil Code in 1902, it was ihe intention of the Legislature to recognize adopted children as forced heirs. It is possible that such was its intention. But, by leaving in force, among others, '§§ 136 and 137, by not alloting a legal portion to them, and by failing to include them among the forced heirs enumer-ad ed in § 736, despite ihe fact that it expressly amended this last Section in 1905, that is, three years after it enacted 132 and 133, the Legislature failed to carry out this [741] intention. I admit that the Louisiana eases, by interpretation, recognize in the adopted children certain hereditary rights in the intestate succession of the adopter. I do not believe we are bound to follow these cases when the Language of §§ 132 and 133 of our Code is different from that qt § 214 of the Louisiana Code, and when, pursuant to our (Lode, the adopted child preserves the rights belonging to him in his natural family, a situation which does not exist in Louisiana. A patent example of the contradiction which might be involved in deciding the case at bar is the fact that, according to the opinion of Mr. Justice Snyder, even though lie maintains, pursuant to the ruling of Bardeguez v. Bardeguez, supra, that because an adopted child is not a descendant in direct line, he is not a legitimate descendant and therefore § 767 of the Civil Code should not be applied, immediately thereafter he states that § 737, which is precisely the one which fixes the legal portion of the children and legitimate descendants, is the one applicable, and that by applying the latter Section in connection with § 769, the intention of the Legislature is fulfilled. This reasoning has the effect of legislating judicially by fixing a legal portion for the adopted child equivalent to that of the legitimate child. Nevertheless, when a ease arises where a legitimate child exists together with an adopted child then another different and arbitrary legal portion would have to be judicially fixed. In our desire to ascertain the intention of the Legislature, we are confronted with the difficulty that when injecting H 132 and 133 into our Civil Code, by bringing them from § 214 of the Louisiana Code, the result in our Code was “an mcovgruent- mixture of two opposing tendencies” because “they were not harmonized with the others (Sections) introduced from the Spanish Civil Code.”5 [742] In brief, I believe that the recognition of an adopted child as a forced heir should be made expressly by our Legislature, if it so desires, and not by means of sporadic judicial legislation every time a different situation presents itself in which an adopted child exists together with one or more of the forced heirs expressly specified in our Code. I am in agreement with that part of the opinion of Mr. Justice Snyder which declares the co-defendants specified therein third persons. The judgment should be affirmed. Footnotes [1] ‘ ‘ Section 177. The adopting parent acquires no right to inherit from the person adopted. Nor does the latter acquire any right to inherit from the former otherwise than by will, unless the adopting parent shall have agreed in the deed of adoption to constitute the person adopted as his heir. This obligation shall cease if the person adopted dies before the adopting parent. The person adopted retains all the rights belonging to him in his natural family, with the exception of those relating to patria potestas.” [2] It should be noted that § 178 of the Spanish Civil Code limits this preferential right of support to acknowledged natural children and to the ascendant's-of the adopting parents. [3] Sánchez Román, op. oil., pp. 1104, 5, note (3). To tho samo effect, Scaevola states: “The silence of tho Civil Code leads us likewise to uphold the preferential rights of the ascendants and of the acknowledged natural children in the intestate succession, notwithstanding the promise made to the adopted child to constitute him as an heir. But there is also a Section, already discussed which [739] it might be said, gives the key to the intention of the lawmaker, which intention wo attempt to determine in order to fill the g'ap due to his oversight. That Section is Section 170. It provides, as we have seen, for the reciprocal obligation of support between the person adopted and the adopted parent, which is the fundamental and principal object of adoption. Nevertheless, the adopted child is subject to the preferential rights of the descendants and acknowledged natural children. This is not a question of a right which springs from the voluntary act of the adopter, such as the right which flows from the promise to constitute him an heir, but of the duty which is the soul of tho adoption. And if in regard to supp'ort, the ascendant and the natural child of the adopter have a preferential right, why should they not have such right in the intestate succession? “Having broken in the latter tho chain of the forced succession, if the promiso is made, it clearly appears that the will of the adopter is that his adopted child should bo preferred to tho collaterals and even to the surviving spouse, who nevertheless shall preserve, in our judgment, the right to the usufruct of his legal portion fixed by section 7, chapter II, tit. Ill, book three. The distance between the collaterals, tire nonexistence of reciprocal duties — even between legitimate brothers there exists the duty of support in case of extreme necessity — the failure to be declared forced heir, everything coincides to pn'cfer tho adopted child, reserving for him this intermediate place in tho intestate succession, more so when the will of the adopter was shown in tho deed of adoption by virtue of his solemn promise made to the adopted child to constitute him as an heir. < ‘ •» *■ * -x- * * • ‘ So that in the hypothesis which we have presented and which has been the object of this analysis, that is, that in the case where with the adopted child there concur descendants born after the adoption, ascendants, legitimated children by royal concession and acknowledged natural children, the adopted child, notwithstanding the promise made to him in the deed of adoption to constitute him as heir, t¡¡hall acquire nothing.” Scaevola, op. cit., 3d ed., vol. Ill, pp. 445, 446. [4] Commenting on this legislation, Manresa states: “. . . It was an accepted doctrine, founded on Leyes V, tit. 6, book 3, and 1st, tit. 22, book 4, of the Fuero Beal-, 8th and 9th, tit. 16, of Bar-tida 4, and 1st and 7th, tit. 20, book 10 of the Novísima Becopilación, that the adopted child was an intestate heir of the adopter who had no legitimate or nalwal descendants or ascendants; hut to whom no legal portion was allotted and he could he omitted in the will. . . .” Manresa, Comentarios al Código Civil Español, 2d ed., vol. II, p. 71. [5] Muñoz Morales, op. oit., p. 436. [4] Luis Hufioz Morales, Anotaciones al Código Civil de Puerto Pico, Pevista Jmidica de la Universidad de Puerto Pico, vol. X, No. 4, p. 411, at p. 427.