Page:United States Reports, Volume 209.djvu/313

 GARZOT , o RUBIO. 28? 209 U. 8. Opinion o! tim Court. her 8, 1875, the husband, Rios died leaving surviving him his widow, Manuela, and three minor children, the issue of the mar, viz., two daughters, the one Petronila and the other Maria, and a son, Jos. On the night of his death the husband executed a power of attorney, authorizing his wife to make a last will on his behalf, and on September 12 following, in virtue of this power, the wife executed the will. As the docu- ment was in no respect dispositive, but purely declaratory of the rule of legal suecession, its effect on this controversy may be put out of view. By the law of Spain the three children were the heirs of the estate of their father, less the mother's share of the community estate, if any, subject to the usufruct of the mother on her husband's estate and subject to a marital fourth in favor of the wife, if the circumstanc justified such an allowance. The widow instituted the necessary preliminary prelate proceedings in the proper court to open the estate, and became executrix and the tutrix of her minor children and usufructuary of their estate, and, in one or both capacities. went into poesession and control of the entire property, in- cluding in such property her community estate, if any there was. Two years after the widow married Miguel Bustelo. In November, 1887, J.os, the son by the first marriage, being yet a minor, died intestate, and his mother, Manuela, insti- tuted in the proper court proceedings concerning' the estate of her deceased son. It may be conceded that the mother, as the immediate ascendant, was the sole heir of the son, to the exclusion of the sisters, the estate taken by her, however, being only usufructuary in character since at her death, as the estate of the son had come to him as part of his paternal inheritance (the succession of his father), it reverted to the sisters, children of the father--becanee of the principle of the SpanlRb law which took into account the source whence the estate of the son had been derived, for the purpose of regulat- ing its transmission by death. Petronila, the oer daughter, married one Noyas. In the

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