
    Ex Parte Nadal.
    Appeal from the District Court of San Juan.
    No. 105.
    Decided February 4, 1904.
    Acts of Voluntary Jurisdiction. — All acts in which the intervention of the judge is necessary or is requested, without any question between known and particular parties being involved or raised, will be considered as acts of voluntary jurisdiction.
    Id. — Alienation of the Property of Minors — Judicial Authorization — Payment of the Debts of the Predecessor in Interest. — Proceedings to obtain judicial authorization for the alienation of the property of minors lie within the voluntary jurisdiction, and the fact that the ground set up for the alienation consists in the necessity of paying certain debts of the predecessor in interest does not impart a contentious character to the proceedings, and is a ground which justifies the institution of the proceedings. '
    Id. — Necessity and Utility.- — The necessity and utility of the alienation of the property of minors having been established in the legal form, it is proper to grant the necessary authorization for that purpose.
    STATEMENT OE THE CASE.
    This is an appeal pending before us, taken by Eulogia Na-dal y Colón, widow of Kearney, in proceedings of voluntary jurisdiction instituted by ber in tbe District Court of San Juan, requesting judicial authorization to alienate property belonging to minors.
    In aforesaid proceedings tbe court, on tbe 2d of July last, made a ruling wbicb is as follows:
    “Porto Rico, July second, one thousand nine hundred and three. Eulogia Nadal de Kearney (filed a petition for the institution of an bet of voluntary jurisdiction), stating that her husband, Daniel "W. Kearney, died in Aguadilla on the 25th of March, 1902, leaving three children from their marriage, who were minors not emancipated, respectively named María Providencia, Josefina and Guillermo; that her aforesaid husband had been for many years an employee of the firm of J. T. Silva, Aguadilla branch, and when on January 1, 1901, said firm was converted into a stock company under the style of J. T. Silva Banking and Commercial Company, the position of manager was offered him, provided he held twenty-five shares of one hundred dollars each, to be deposited with the firm to answer for the faithful discharge of his duties; that Kearney, not having the money, applied to Leocadia Alvarez de Kearney, who loaned him three thousand dol-. lars with which he bought thirty shares and was thus able to fill the aforesaid position, he paying said Leocadia Kearney thirty dollars as monthly interest on the loan; that since Kearney’s death, the creditor had not been able to collect said interest because the thirty shares were entered in the company’s books to the credit of Daniel W. Kearney, and the three thousand dollars must be reimbursed in order to avoid a lawsuit; for this purpose the only means available is to transfer said shares to the credit of Leocadia Kearney, inasmuch as the other property inherited from the deceased Kearney by his wife and children, consisting of money from life insurance policies is loaned out for a fixed period, and the sudden withdrawal thereof would work to the prejudice of the minors. She therefore prays that, after an inquiry to determine the necessity and utility of the alienation, judicial authorization be given to alienate and transfer said thirty shares to Leocadia Kearney. With her petition she filed the certificates of baptism of the aforesaid minor children and the declaration of intestate heirs, made in their favor as children had from the marriage with Eulogia Nadal, and recognizing the latter’s right to the portion in usufruct. Upon the taking of evidence after having cited the Fiscal, three witnesses testified that it was known to them that Daniel Kearney owed his mother, Leocadia Alvarez, three thousand dollars which she had furnished him for the purchase of shares in aforesaid company, wherefore the alienation or transfer of said shares to said Leocadia Alvarez for the purpose of easily settling the debt incurred by Kearney, which is the object of .the proceedings, is deemed to be useful and necessary. The Fiscal is of the opinion that the authorization to alienate the shares should be given.
    “Judicial acts in which a question is raised between known and definite parties, as happens in the present case, cannot be considered as in the nature of voluntary jurisdiction, although there may not have been any litigation proceedings, for, according to the language of article 1810 of tbe Law of Civil Procedure, it is sufficient for tbe purpose that tbe question be raised, without there being actual litigation. Matters which evidently affect known and definite parties do not come within the scope of voluntary jurisdiction, especially when the one who institutes the proceedings does so for the purpose of carrying out acts which affect property belonging to minors, thereby avoiding the legal provisions which prescribe the proceedings established under Book II of the Law of Civil Procedure. No person can legally alter the proceedings established by the law for the trial of issues appertaining to contentious jurisdiction, because the law, although it does not expressly say so, should be understood as prescribing special proceedings in Book II of the Law of Civil Procedure for such acts as were meant to be included therein, having in mind great and important interests that must be effectively protected by means of the contentious jurisdiction, and therefore such matters as provisional measures in intestate and testamentary proceedings have been excluded from voluntary jurisdiction, where' the intervention of the judge is either necessary, or if not, may be requested, and no litigation, whether before or after instituting the proceedings, has occurred among known parties; these matters not being considered as of voluntary jurisdiction because the law has excluded them, in the same manner as-it excludes a real or personal action, even where both parties agree to accept the informal decision of the court, which on that account is no less a matter of contentious jurisdiction, said jurisdiction existing so long as there is authority and power to compel a party to do or leave undone a thing demanded by another. These considerations should be borne in mind in defining acts of voluntary jurisdiction, and therefore it should be ascertained whether aforesaid power or authority is directly involved therein, or indirectly in the execution thereof, as happens in the present case. The judicial authorization requested by Eulogia Nadal de Kearney is refused. Concurred in and signed by the judges of the court, to which I certify. Juan Morera Martínez, Frank H. Richmond, José Tous Soto. — Luis Méndez Yaz.”
    From the above decision Eulogia Nadal took an appeal, -which was allowed, and the records having been forwarded to this Supreme Court and the matter having been heard under the proper procedure, said appeal was sustained by the party appellant and the Fiscal.
    
    
      
      Mr. Kearney (Juan Miguel), for appellant.
    
      Mr. del Toro, Fiscal, for the People.
   Mr. Justice Hernández,

after making the above statement of facts, rendered the opinion of the conrt.

The findings of fact of the above order are accepted'.

According to article 1810 of the Law of Civil Procedure, all proceedings in which the intervention of the judge is requested or is necessary, without there being actual litigation, or in which no question is raised between known and definite parties, shall be considered as acts of voluntary jurisdiction.

The proceedings instituted by Eulogia Nadal, Kearney’s widow, are and should be considered as of voluntary jurisdiction, not only because no actual litigation is involved, or issue raised between known and definite parties, as required by aforementioned legal provision, but because it is expressly included under title XI, book III, of the Law of Civil Procedure, which provides for the alienation of the property of minors and incapacitated persons and settlement of their rights out of court, and the cause alleged for the proposed alienation, namely, the necessity of satisfying a debt due Leocadia Alvarez, does not make it contentious, inasmuch as aforesaid cause justifies the institution of the proceeding which is provided for under article 2020 of said Law of Civil Procedure.

The necessity and utility of the alienation of the shares in question having been established in due legal form, the request of Leocadia Nadal, widow of Kearney, should be granted.

Having examined articles 1810, 2010, 2011, 2012, 2013 and 2014 of the Law of Civil Procedure, the order appealed from which was made by the court of San Juan on July last is set aside, and we grant Eulogia Nadal, widow of Kearney, the authorization requested by her to alienate or transfer to Leocadia Alvarez, widow of Kearney, the thirty shares in question, in payment of the credit of three thousand dollars contracted in favor of the latter by the late Daniel W. Kear-ney.

The record of the District Court of San Juan is ordered to be returned, with a certificate of the present decision, for such action as may be proper.

Chief' Justice Quiñones and Justices Figueras and Mac-Leary concurred.

Mr. Justice Sulzbacher did not sit at the hearing of this case.  