
    Morales, Petitioner and Appellant, v. Romeu, Respondent and Appellee.
    Appeal from the District Court of Mayagiiez in an Action for the Appointment of an Administrator.
    No. 1866.
    Decided December 23, 1918.
    AoministratioN — Heir.—The mere fact of being an heir of one of the spouses confers no right to apply for the administration of the estate left by the other spouse at his death, for such right pertains exclusively to the persons mentioned in section 23 of the act relating to special legal proceedings.
    The facts are stated in the opinion.
    
      Mr. Luis Montalvo Guenard for the appellant-
    
      Mr. Ángel A. Vázquez for the appellee.
   Mr. Justice Aldrey

delivered the opinion of the conrt.

Pedro Enrique Morales G-arcés petitioned the District Court of Mayagiiez to be appointed administrator of the estates of the deceased spouses José Romeu Giacomaggi and Aurora Maria Morales Garcés, alleging that he and two of his brothers, who are absent from the Island, had been declared by the court to be the intestate heirs of Aurora Maria Morales Garcés; that his sister Aurora left separate and ganancial property subject to partition consisting of her share as a member of the conjugal partnership and of a sum of money deposited in a hank in the name of the deceased José Romeu Giacomaggi, and that he is a creditor of Ms sister’s estate for money expended by him during her sickness and for her funeral and other expenses. He further alleged that the order designating the intestate heirs of José Romeu Giaco-maggi has been appealed from, one of the heirs being a minor.

The court heard the attorneys for the petitioner and for the contestant, Francisco Romeu Rivera, and denied the petition on the ground that a case had not been ma de for the appointment of an administrator by the court. From that decision Pedro Enrique Morales took the present appeal and filed a written brief, but he did not appear at the hearing on the appeal. Only the attorney for the contestant appeared at the hearing and he filed no written brief.

As the petitioner, the appellant, alleges in his petition that he is the designated heir of his sister Aurora Maria Morales y G-arcés and as he does not say that such designation is appealed from but states that said Aurora Maria Morales left property subject to partition, he would be entitled, according to the provisions of section 23 of the Special Legal Proceedings Act, to an order for the administration of the estate of his sister but for the fact that, instead of limiting himself to this, he prays also to be appointed administrator of the estate left by José Romeu Giacomaggi, making him administrator of the estates of both spouses, although he is not an heir of José Romeu Giacomaggi, for he does not so allege in his petition. The mere fact that he is an heir of one of the spouses does not entitle him to ask for the administration of the estate of the other spouse, for that right corresponds only to the persons mentioned in said section 23, among whom the petitioner is not included as regards José Romeu.

Although apparently the petition is also based on the ground that one of the heirs of José Romeu Giacomaggi is a minor, the appellant can claim no rights which that minor may have, because he does not allege that he is the minor’s lawful representative and because, even if he were, he could not act as such in this case, inasmuch as the designation of the -heirs of José Romeu Giacomaggi is pending on appeal and while the question is sub judice they cannot assert rights derived from the 'designation of heirs appealed from, if any they have.

For the reasons stated we must affirm the decision appealed from, but the judge is instructed to allow the petition to be amended.

Affirmed.

Chief Justice Hernández and Justices Wolf, del Toro and-Hutchison concurred.  