
    Mallen, Plaintiff and Appellant, v. Vidal et al., Defendants and Appellees.
    Appeal from the District Court of Ponce in an Action for a Judgment of Patria Potestas and to Set Aside the Appointment of Tutors, etc.
    No. 1560.
    Decided July 24, 1917.
    Patria Potestas — Divorce—Family Relations. — When a marriage is dissolved by a decree of divorce and the innocent spouse is awarded the custody and patria potestas of the minor children in accordance with section 234 of the Civil Code, the guilty spouse cannot regain the patria potestas upon the death of the other; for the nature of the custody awarded to the innoeent spouse is to destroy the legal relation existing between the guilty parent ánd the children, although family relations, as distinguished from patria potestas, may continue, according to section 175 of the said code.
    Id. — Eights of Mother — Absence, Incapacity or Death oe Father. — Ás the right to the patria potestas naturally inheres in both parents, it was not the intention of the legislature, in amending section 222 of the Civil Code on March 14, 1907, in the sense that ■ the patria potestas should belong in the first place to the father, to give him an exclusive right over the children and to abolish the fundamental right of the m'other only to arise in case of the death, disability or absence of the father.
    The facts are stated in the opinion.
    
      Messrs. José de Diego and Manuel Rodrigues Berra for . the appellant.
    The appellees did not' appear.
   Me. Justice Wole

delivered the opinion of the court.

The appellant sought a’judicial declaration to obtain the ■patria potestas over her minor son, and other relief. In the lifetime of her husband she bad been divorced and the custody of the child, by the judgment, had been given to the said husband. He died leaving testamentary guardians for his said son and she maintains that by his death the said patria potestas devolved upon her. The question was decided in the court below against the complainant by sustaining a.demurrer to her complaint.

.The appellant concedes that before March 14, 1907, the divorce decree would have definitely deprived her of the right to the custody of the child, inasmuch as before that date the father and the mother indiscriminately exercised the patria potestas over their minor children, but on March 34, 3907, the law was changed as follows:

“The patria potestas over the legitimate children not emancipated belongs in the first place to the father, and in ease of his absence, legal incapacity or death, to the mother.
“Illegitimate children and adopted minors shall be Under the potestas of the father or mother acknowledging or adopting them. Where they have been acknowledged or adopted by both parents, the provision of paragraph 1 of this section shall be applicable.”

The contention of appellant is that under the new wording of the law her right arises and arises only by virtue of the death of the father, and hence the divorce decree could not affect a right which accrued after the date of the decree. In other words, although section 234 of the Civil Code says in effect that the guilty spouse shall lose the patria potestas when the custody of a child is awarded to the other, nevertheless that a person cannot lose .what she did not possess.

There is force in the argument, hut it cannot prevail against the intention of the legislature as evidenced by section 222, as amended supra, and section 234, and the general nature of divorce. A wife had something to lose in this regard both before and after March 14, 1907. She had a potential or inchoate right to the dominion of her child comparable to her right over the community property. Indeed, with regard to the community property during the lifetime •of her husband, her rights were very dubious and vague, but -courts have declared that they exist. Under section 222, as •amended, the husband has the prior right, hut it is not an «exclusive one. This is evidenced perticularly by the fact that it belongs to the wife not only on the death but in the absence of the husband. Some right there always is even if quiescent or dominated by the right of the husband. As the right to the patria potestas naturally inheres in both parents, it cannot be supposed that the legislature in 1907 was. abolishing the fundamental right of the mother only to arise in cases of death, disability or absence of the father. It may be true, as appellant points out, citing from Sánchez Román, Vol. II,. Tom. V, p. 1103, that the patria potestas is more of a natural function than a right, but a legal relation necessarily exists, as is evidenced by the very suit brought in this case. The patria potestas is a legal institution. We think the legislature by section 234 intended to destroy that relation in the guilty'spouse, and the law of 1907 supposes that the relation or function is valid and subsisting for botli parents. The nature of 'divorce is to dissolve the legal bond between husband and wife. The nature of the custody awarded is to dissolve the legal relation between the guilty parent and the child. • This is further evidenced by section 175 of the Civil Code, as follows:

“In all cases of divorce the minor children shall be placed under the patria potestas of the party who has obtained the divorce; but the other spouse shall have the right to continue family relations with his or her children.”

Family relations, as distinguished from patria potestas, may continue. The legal relation of patria potestas is ended.

The judgment appealed from must be

Affirmed.

(hief Justice Hernández and Justices del Toro and Al-drey concurred.

Mr. Justice Hutchison dissented.  